I have been asked to comment on the following scenario from Victoria:
Recently my partner and I attended a cardiac arrest of an elderly patient
We ceased our efforts upon the sister telling us there was a “Not for Resuscitation” order in effect, although she could not find it when we asked to sight it whilst clearing up.
I would imagine quite a few paramedics also brush this excuse off as they do not want to further trouble the relative/carer during what is a very emotive time.
We had a bit of a laugh later when we found out she and her husband always fought and one of the other paramedics asked “are you sure there was an order?”
I have looked through all my notes at home, but I joined the service twenty years ago and I am sure things have changed, and I could not find the relevant notes anyway. It is interesting asking other Paramedics that not many could give me a concise answer either
So my request would be that you outline the act and our responsibilities under it for confirming the order exists.
First with some theory; there is a hierarchy of rules here. Ambulance paramedics (at least not until they are registered health professionals) are not employed to practice their profession as they see fit, but to practice their art as directed by their employer. The employer, in this case Ambulance Victoria, directs its staff on how they are to perform their tasks by issue protocols or guidelines. In Victoria they are the Clinical Practice Guidelines. For the sake of these comments I’m relying on the online version of Ambulance Victoria Clinical Practice Guidelines for Ambulance and MICA Paramedics, 2012 Edition (at http://www.ambulance.vic.gov.au/Paramedics/Qualified-Paramedic-Training/Clinical-Practice-Guidelines.html).
Above those is the need for authority. The NSW Ambulance protocols say:
A paramedic who treats a patient without authorisation acts unlawfully. Whilst the protocols and pharmacology of the ASNSW authorise paramedics to treat patients according to the paramedic’s relevant skill level, the necessary authorisation is given by the patient who provides consent to the treatment having proven their competency and capacity to make such a decision. (Page 2)
(I am again relying on an online version; Ambulance Service of NSW Protocols and Pharmacology, January 2011, at http://www.ambo.com.au/download/protocol_2011.pdf. I assume, but cannot verify this online version is both current and accurate. I do note that the site where the protocols are located is not an official ASNSW site).
Above this is the law (though some may argue that patient choice should rank above the law). The law recognises the need for patient consent but also sets limits, the patients’ consent does not convert what is illegal to legal (eg you cannot consent to your own death, so a person’s consent does not stop euthanasia being murder) nor can the patient insist that the paramedic or anyone not do something they are legally required to do.
With that hierarchy we can look at the scenario. The first step is what do the Clinical Practice Guidelines say? Relevantly CPGA0203 Withholding and/or Ceasing Pre-hospital Resuscitation says:
Circumstances where resuscitation efforts may be withheld
– An adult (18 years or older), where a Refusal of Treatment Certificate has been completed for a current condition which most likely caused the cardiac arrest
The notes that accompany the Guideline say:
A refusal of treatment Certificate may be completed by:
– a person aged 18 years or older;
– an agent, where a person aged 18 years or older has completed an Enduring Power of Attorney (Medical Treatment)
– a guardian appointed by the Victorian Civil and Administrative Tribunal (VCAT).
• A Refusal of Treatment Certificate may be sighted by the attending Ambulance crew, or they may accept in good faith the advice of those present at the scene. If there is any doubt about the application of a certificate the default position of resuscitation should be adopted.
• A Refusal of Treatment Certificate may only be completed in relation to a current condition. When ceasing or withholding resuscitative efforts in these circumstances the attending Ambulance or MICA Paramedic needs to be satisfied that the Pt’s cardiac arrest is most likely due to this current condition. (Emphasis added).
The relevant Act is the Medical Treatment Act 1988 (Vic). As the notes correctly summarise, the Act allows for a person to sign a refusal of treatment certificate to refuse treatment, even life saving treatment, for a current condition. It is a criminal offence for a medical practitioner, not a paramedic, to provide treatment that has been refused in accordance with the Act (see s 6).
The Act does not replace the common law (see s 4) so the patient’s common law right to refuse treatment, even life saving treatment, remains. A person can refuse treatment provided they are informed and the refusal is binding on everyone if there is no reason it is intended to apply in the circumstances and no reason to think the person has changed their mind or was incapable at the time they made the decision (In Re T (1992) EWCA Civ 18). The decision does not have to relate to a ‘current condition’. If we go back to earlier posts on medical tattoo’s, it is my view that having ‘NO CPR’ tattooed on one’s chest would be a very good way to convey that decision. A decision relying on one’s common law rights does not need to be in any particular form. If it’s not in the form and manner prescribed by the Medical Treatment Act then applying the treatment would not be an offence contrary to that Act but it may still be an assault.
To then turn back to the scenario, the first thing is that the paramedics have applied their protocol which does say “the attending Ambulance crew … may accept in good faith the advice of those present at the scene” that there is a refusal of treatment certificate in place. The law says we should not make quality of life decisions, that all life is of equal value whether the person is 18 or 80 (see Airedale NHS Trust v Bland [1993] 2 WLR 316) but I suspect that is not how we view life in reality. I can imagine that a paramedic is more likely to accept that there is a refusal of treatment certificate in place where the person is 80 rather than 18. Further the Medical Treatment Act does apply to a refusal for a current condition and we don’t know what if any was this persons underlying condition. Had she just said she’d rather not be resuscitated?
What are the legal consequences? If all the family agree that this was the right decision there are unlikely to be any. If someone disagrees then there may be any number of consequences. First they may complain to the police. It’s hard to see that any offence has been committed. The paramedics could not be guilty of murder or manslaughter as proving their decision, rather than the cardiac arrest, caused the death would be impossible and making these decisions is something they have to do everyday. Provided the action was in good faith, there’s no real prospect of any criminal action. Further to treat someone without consent is an assault, to not treat them even if there is no refusal is not a crime – not touching someone is not a crime. I can’t believe the police would be interested unless they took the view that there was something untoward (eg the sister offered the paramedics money to stop) or they think the coroner should investigate in order to make recommendations to Ambulance Victoria in order to amend the clinical practice guideline.
Could there be a civil action? If there was that would be against Ambulance Victoria as it would be vicariously liable for any action of its staff. The allegation could be that they withdrew resuscitation when they should not have. The first step is that the paramedics did what they were authorised to do assuming they believed the sister and had no reason not to so believe her. If there was a fault it lies in AV in the way it’s drawn up the guideline (see Worley v Ambulance Service of NSW [2006] NSWCA 102 or my article “Ambulance Service of NSW v Worley; further legal lessons for the emergency services” (2012) 5(2) Journal of Emergency Primary Health Care, Article 4). The guideline does reflect the Act but does not deal with a person who has exercised their common law right to refuse treatment.
If someone did want to take civil action, apart from having to prove that there was some damage, ie that continuing resuscitation would have had a better outcome, they would have to prove that the decision to discontinue was unreasonable in the circumstances. That may cause a court to think about and give directions on what the paramedics should consider when deciding whether to ‘accept in good faith the advice of those present at the scene’.
The matter could be referred to Ambulance Victoria or the Office of the Health Services Commissioner as a complaint regarding the standard of care. Presumably that would be investigated and the critical issue would be what factors did the paramedics think about or consider when deciding to accept the advice of the bystanders? On this point it is worth going back, again to the notes associated with the Guideline which say:
Ambulance crews must clearly record full details of the information given to them and the basis for their decision regarding resuscitation on the PCR. This is particularly important in circumstances where a copy of the Refusal of Treatment Certificate has not been sighted as it will serve if necessary as evidence of their good faith.
Discussion
It seems that the paramedics here applied their guideline that says “… the attending Ambulance crew … may accept in good faith the advice of those present at the scene” that there is in place a refusal of treatment certificate.
What we don’t know is the “details of the information given to them and the basis for their decision regarding resuscitation”. The fact that the patient was ‘elderly’ is not legally relevant but I’m sure it is in day to day life. If we go back to the Act however a refusal of treatment certificate is meant to be in a particular form, witnessed by a medical practitioner and ‘another person’ (s 5) and relate to a current condition.
Withholding resuscitation on the basis that you think the patient is ‘elderly’ and that resuscitation is unlikely to be effective and a bystander appears to concur is not acting on a good faith belief that there is a refusal of treatment certificate in place. Paramedics should ask the bystander if they can name either the doctor or the ‘other person’ who was the witness – perhaps it was the bystander themselves? And ask ‘what condition are they suffering from’; again to refer to the guideline “When ceasing or withholding resuscitative efforts in these circumstances the attending Ambulance or MICA Paramedic needs to be satisfied that the Pt’s cardiac arrest is most likely due to this current condition” and you couldn’t do that without at least asking what that condition was or observing evidence around them to show that they were suffering from a chronic condition that is likely to be the cause of their current cardiac arrest.
As noted above patients also have a common law right to refuse treatment but that does not extend to the bystander refusing treatment. To rely on that there would need to be some evidence but it need not be in a particular form – a card carried in the wallet (see Malette v Shulman (1990) 72 O.R. (2d) 417 (Ontaria, Canada) or in my view, a tattoo across the chest, is effective to indicate that CPR is refused.
Conclusion
We are, in effect, told that resuscitation was terminated when paramedics accepted, in good faith, that a refusal of treatment certificate was in place. That is defensible provided there is some evidence to accept that assertion. I would advise paramedics in that situation to ask questions about when the certificate was signed, in whose presence and with respect to what condition. If those questions can’t be answered or if the cardiac arrest is due to some other condition then resuscitation should be continued; unless there is clear evidence of a common law refusal which would need to be something that evidences it was this patient’s wish not to be subject to this treatment. That ‘something’ does not have to be in any particular form.
If this treatment was withheld improperly, and someone wanted to complain, I can’t see there would be any criminal or civil liability unless the evidence was that the patient would, more likely than not, have recovered if CPR had continued. The matter may be subject to internal investigation and ‘counselling’ if the paramedics could not demonstrate that they had seriously considered issues relevant to the Refusal of Treatment certificate, issues such as where was it signed, before whom and for what condition.
Australian Emergency Law 
An interesting topic.
Despite some well structured arguments encountered in my time or even not, there have been occasions where the needs of the many outweighed the needs of the few….or the one.
Paramedics make judgements on the worthiness of resuscitation beginning or in the main, continuing. Apart those permissions appearing in guidelines paramedics do make decisions that colleagues do have difficulty accepting. The hierarchy or resuscitation can be quite powerful. So too the premise that most resuscitation efforts are completed on scene before transport. We are rarely scoop and run providers anymore. I’m the sure the futility or even perception if futility dictates efforts.
We create an environment where we want our ‘customers’ to believe in all that we do and all that we say. Ill leave you to ponder that last sentence and where you may fit in as providers…
Interesting if you also take the ‘Paramedic’ part out and place a First Aider (St John volunteer or public bystander) where they would find themselves at a scene with a purported family member indicating that the person did not want to be resuscitated.
There are no CPGs in SJ (that I know of) or rules that a bystander would be able to follow except that of assumed consent given the person was unconcious and the ‘right’ thing to do, would be to treat. Any thoughts Michael?
Paul, you raise a good point. A bystander will be in a difficult position if the start CPR and then have the sister say the patient does not want resuscitation. Having started they would be best advised to continue until the paramedics arrive and let them make the decision. The same is true for a St John volunteer.
On the issue of assumed, or implied, consent, this is often given as the authority for treating the unconscious but it’s the wrong justification. There can’t be implied consent if the person would not be capable of giving consent if they were conscious (eg the mentally ill or the very young) and there can’t be sudden implied consent if minutes before the person clearly and expressly did not consent.
Treatment of the unconscious or those unable to consent is justified by the principle of necessity. In F v West Berkshire Health Authority (also cited as In Re F) [1999] UKHL 1 Lord Goff said:
“Upon what principle can medical treatment be justified when
given without consent? We are searching for a principle upon
which, in limited circumstances, recognition may be given to a
need, in the interests of the patient, that treatment should be
given to him in circumstances where he is (temporarily or
permanently) disabled from consenting to it. It is this criterion of
a need which points to the principle of necessity as providing
justification.
… the basic requirements, applicable in these cases of
necessity, that, to fall within the principle, not only (1) must there
be a necessity to act when it is not practicable to communicate
with the assisted person, but also (2) the action taken must be
such as a reasonable person would in all the circumstances take,
acting in the best interests of the assisted person.
On this statement of principle, I wish to observe that
officious intervention cannot be justified by the principle of
necessity. So intervention cannot be justified when another more
appropriate person is available and willing to act; nor can it be
justified when it is contrary to the known wishes of the assisted
person, to the extent that he is capable of rationally forming such
a wish.”
So anyone can do what is reasonably necessary to assist a person who cannot communicate their wishes, but not if the treatment is contrary to the persons KNOWN wishes. There can be no issue if the persons wishes are not known so there may be a valid refusal of treatment certificate but that’s irrelevant if the first aider doesn’t know about it and they are unlikely to be in a position to know r be able to make a decision on the issue. The same is true for paramedics but they are given guidance so they can make a better decision in accordance with their CPG or protocols.
One can’t however ignore a refusal; that’s what happened in Malette v Shulman where the Dr administered blood even though the patient had a card saying she didn’t want blood under any circumstances. He argued that he couldn’t know if she was informed, competent etc. The Ontario court rejected that saying she had all she could do to communicate her wishes and patient autonomy became meaningless if it wouldn’t be honoured in the very situation where it was relevant.
To return to CPR if there really is a refusal eg the relative can produce it, or in my view, the patient has gone to the effort of tattooing “No CPR” on their chest, that has to be honoured. The offence of medical trespass in the Medical Treatment Act only applies to medical practitioners and only if the refusal complies in form with that provided in the Act, but the crime and tort of battery still applies for treatment contrary to the known wishes of the patient. I cannot imagine any police officer or court would apply that to a Good Samaritan bystander (and today they could uphold the principle of patient autonomy but still excuse the Good Samaritan by relying on “Good Samaritan legislation in each State (see Wrongs Act 1958 (Vic) s 31B) but the principle remains that a person can refuse treatment and treatment that is contrary to a persons wishes is not justified by necessity.
This hides many issues about capacity and what is a valid refusal, and that’s too hard to explore here. When in doubt it’s better to treat as treatment can be withdrawn later when the issue can be clarified. For further discussion do see my book Emergency Law (Federation Press, 3rd Ed 2009; 4th Ed forthcoming)
Actually, I don’t think a St. John volunteer or any equivalently trained first aider would have the same difficulty in this situation. The directive of the first aider is simple. A first aider has a duty of care only once they begin treatment, or if their position assigns them that duty (such as first aid officer at a workplace). A first aider can always decide not to treat the patient, upto the point where they commence treatment (i.e. they cannot walk away once they’ve started).
Once a first aider is treating a casualty, they must seek consent from the patient before commencing treatment. However, if the patient is unconscious then consent is assumed to have been given. If a previously conscious patient denies consent, but then looses consciousness, then their ability to refuse consent (for first aid purposes) is withdrawn. Consent must be ongoing.
Consent can only be withdrawn by a conscious patient. A family member, or bystander, does not have the authority to withdraw consent. A St. John’s first aider has been trained not to accept, tattoo’s, written messages, or the claims of any bystander as proof of removal of consent. As we are not medical practitioners, the decision to withdraw life-saving care is beyond the scope of our judgement. So the appropriate course of action is to call a paramedic, or medical practitioner who can then make that judgement.
Ben, thank you for your comment but I’m afraid to say your understanding of the law is not correct.
Your first paragraph is fair enough. A bystander doesn’t owe a duty to come to the aid of anyone. The position isn’t so clear for a St John volunteer on duty and holding themselves out as being available to render first aid but that has never actually been tested in a court (but see Lowns v Woods (1996) Aust Torts Reports ¶81-376 with respect to a doctor’s duty when asked to provide assistance). If they do attend then the law probably only goes so far as to say that their duty is not to make the situation worse than it would have been if they hadn’t started to help. It would not be a duty to actually make the situation better, ie the CPR doesn’t have to actually work.
We know that first aiders can walk away when they’ve started; they don’t have to continue if they are at risk of harm, ie if the danger to them becomes to great; the treatment is futile, they are unable to continue, someone else offers to take over or for whatever reason that decision is ‘reasonable’ in the circumstances.
You then say:
In my reply to an earlier comment by Paul I quoted from the decision in F v West Berkshire Health Authority (also cited as In Re F) [1999] UKHL 1 where Goff LJ explained that assumed or implied consent is not the justification that allows treatment of the unconscious or other person who cannot consent. The relevant legal principle is necessity and that does not justify treatment that is contrary to the known wishes of the patient.
If a previously conscious patient denies consent (and the refusal is informed and covers the circumstances that have arisen – In Re T [1992] 4 All ER 649) then that refusal remains binding (In Re T [1992] 4 All ER 649; Malette v Shulman (1990) 67 DLR (4th) 321; Hunter and New England Area Health Service v A (2009) 74 NSWLR 88; Brightwater Care Group (Inc) v Rossiter (2009) 40 WAR 84).
What may happen when a patient refuses consent but then becomes unconscious is that there may be reason to think that they were not informed. In the 4th ed of Emergency Law (forthcoming) I say
But where the refusal is clearly intended to apply in the circumstances then it continues to apply. The situation may not arise often in a first aid setting but that doesn’t deny the principal. What follows is that if “A St. John’s first aider has been trained not to accept, tattoo’s, written messages, or the claims of any bystander as proof of removal of consent” then the training is wrong both in law and ethics.
People have the right to make decisions about their lives. The issue is not about ‘removal of consent’; if they did not consent in the first place there is no consent to withdraw. I agree that a St John or bystander would not usually take the word of a bystander but even that needs to be taken with caution. Assume for example you are visiting a friend when an elderly neighbour comes in and asks for assistance as they believe their life partner has died; you enter the house and the person is in bed apparently in cardiac arrest, and their partner says, as you go to start CPR, ‘no don’t do that (s)he didn’t want that, I just wanted some help to know who to ring’ and to make the picture clearer, assume there is evidence that the person was chronically ill wiith home oxygen and a collection of medication nearby. Why wouldn’t you accept that this person probably knows what’s going on, and as you’ve said there’s no duty to respond?
With respect to tattoos and written messages, again it may be reasonable if the message is a scrawled suicide note but what if it’s a document, clearly written, perhaps signed by a friend, or lawyer, or doctor or a formal refusal of treatment certificate? And a tattoo saying “NO CPR” is a pretty clear indication that the person does not want CPR and that can only apply in circumstances when they need CPR. Failure to honour that is failure to respect personal autonomy or is an action designed to protect yourself from some perceived risk, either of liability or just bad feeling, either way it’s not acting in the patient’s best interests but the first aiders.
Generally it is true however, that the picture won’t be as clear as I’ve tried to make it and all of this is unlikely to have much application in the first aid context and in most cases a first aider should continue CPR and let the paramedics make the call; but there may be clear cases when people have clearly expressed their wishes in circumstances where there is no room to doubt that they apply in the situation that has arisen, and those decisions should be respected.
Let me summarise the law:
1. Treatment of the unconscious, the drug affected, the young or others unable to consent is NOT justified or permitted by a concept of implied or informed consent. That has been taught at first aid courses since time immemorial but it is wrong. The relevant legal principle is ‘necessity’.
2. Necessity is not about consent. It is not assumed that the patient has consented, it is recognised that they have not but the principle is based on the premise that there is some contact acceptable in everyday life and stepping up to help others is part of that. Anyone can do what is necessary to save another, whether that’s force entry to property, take a lost toddler by the hand and walk them to the police station or do CPR .
3. In the context of first aid, to be justified by necessity “not only (1) must there be a necessity to act when it is not practicable to communicate with the assisted person, but also (2) the action taken must be such as a reasonable person would in all the circumstances take, acting in the best interests of the assisted person.”
4. Necessity does not justify the application of treatment that is contrary to the known wishes of the patient. The fact that they pass from capacity to incapacity does not change suddenly give rise to a presumption of consent. It may be however that their refusal did not extend to the situation at hand where there life is not at risk, but it may do.
5. Necessity does not justify action where someone better qualified is there ready to help, so you can’t push the paramedics or doctor out of the way to render first aid; but in the absence of those agencies that action of applying first aid can be justified.
Michael Eburn
Hi Michael,
I reviewed the literature from my most recent first aid training. The responsibility of a first aider revolves around 4 concepts:
1. Duty of Care
2. Negligence
3. Consent
4. Recording
Firstly. A first aider does not have duty of care till they begin treatment. So if it were likely that the patient would not consent. The first aider could simply choose not to commence treatment. Such that there never was a duty of care, and no cause for legal repercussions.
As for consent. The St. Johns litterature is very simple. If the patient is concious, consent must be obtained. If unconsious, then it is assumed (their words, not mine). That is all the instruction we are given in this area.
As for refusal of treatment. First aid is not classified as medical treatment, within St. John’s litterature. So if the treatment refused was “Medical Treatment” then that may not automatically include “First Aid”. If it was all treatment (unqualified) then it might. I actually would be interested to know exactly what these documents are refusing.
Sorry if that falls short of all the legal nuances, but that is what we are taught.
PS.
Benjamin
Please don’t apologise if your understanding ‘falls short of all the legal nuances’, if we were all experts we wouldn’t need each other and putting comments on here isn’t meant to be a test.
To turn to your comment, thank you for sharing the St John training information which I’ll comment on noting that my comments reflect on their training material, not you.
First ‘Duty of Care’ and ‘Negligence’ are part of the same thing. The tort, the legal pigeon hole, is ‘negligence’ and that requires that there be a duty of care, a breach of that duty and that the breach causes damage. To say that “The responsibility of a first aider revolves around [2] concepts: 1. Duty of Care 2. Negligence” is a tautology. It revolves around negligence and that raises the question of whether or not there is a duty of care.
Consent relates (largely) to a different tort, that of battery.
Your notes tell you:
That’s probably fair enough. It would be better to say “if the patient does not consent, the first aider would simply not commence treatment” and there would be cases where just because a person refuses some treatment it does not mean they refuse all care, so for example they may refuse treatment but that may not mean the first aider shouldn’t say to someone else, such as their friend, “I think you should take them to hospital” or “look out for these symptoms and if they occur call an ambulance” but for practical purposes it’s probably a fair enough statement.
You then say:
Regrettably that advice is wrong. If the patient is unconscious or otherwise able to consent, it is OK to provide treatment that is reasonable in the circumstances and given in their best interest provided that the treatment is not contrary to their known wishes. That is the effect of the decision in Re F and a myriad of other precedents.
In Victoria the Medical Treatment Act 1988 (Vic) s 3 says “medical treatment”
what is a ‘medical procedure’ is not however defined.
None of that’s particularly relevant. We can accept that the Act is not intended to apply in a first aid situation so a first aider is not guilty of medical trespass for treating contrary to a Refusal of Treatment Certificate. The Act does however say that all other legal rights are maintained (s 4) so this Act is not the only way to refuse treatment, it is one way that carries with it the extra penalty of a criminal offence for a doctor who does not honour the certificate.
The common law remains, and it says ‘The fundamental principle, plain and incontestable, is that every person’s body is inviolate’ (Collins v Wilcock [1984] 3 All ER 374 (Goff LJ)) that is no-one can or should be touched against their will. Numerous cases have reinforced the notion that people can refuse treatment even if it means they will die. It is there right to determine what is to happen to their body.
If we don’t honour people’s wishes at the time of their dying, then issues of respect for autonomy become meaningless. If people want to refuse CPR, or blood transfusions, or kidney transplants or whatever, they can.
This will not usually be relevant in a first aid context as we simply can’t know what people’s wishes are, and people may refuse treatment without knowing what is being proposed or the likely consequences. It seems to me that is not the case with CPR. A person who knowingly refuses CPR by having ‘NO CPR’ tattooed on their chest knows that CPR is only required in a life and death situation and if you refuse CPR when it’s required, the only outcome is death. A first aider, or a paramedic, or a doctor may argue that they don’t know if the person understood that but that is the person’s risk when they had the words tattooed on their chest. What else could a person do to more effectively communicate their wishes? And if you’re not going to honour that, what are you going to honour?
If the paramedic arrives at a scene where a patient is unconscious and is in need of CPR and the third party produces a refusal of treatment certificate which is filled out by them (the power of attorney) does this qualify as no consent for treatment made by the patient?
The person has consented to the power of attorney to make medical decisions for them but not necessarily signed the refusal of treatment certificate. Does this by default mean the patient has not given consent for treatment.
I’m looking beyond the Medical Treatment Act 1988 because Paramedics are not involved within this act and more at autonomy and consent as an issue.
Andrew
A person may appoint someone else as their agent to make medical decisions on their behalf when they are not able to make those decisions themselves. The Victorian Civil and Administrative Tribunal may, alternatively, appoint a Guardian to make decisions on behalf of a person who is not longer able to make their own decisions (in short, an agent is appointed by the person; a guardian is appointed by the Victorian Civil and Administrative Tribunal). An agent or guardian may refuse treatment if, and only if,
and
In those circumstances the agent or guardian may sign a refusal of treatment certificate. Paramedics do not need to go beyond the certificate, that is it is not their job to determine whether the requirements of s 5B have been meet; that is for others should that be an issue so the mere assertion ‘I couldn’t know if s 5B had been complied with’ is not sufficient reason to disregard a Refusal of Treatment Certificate. If it was the Certificate would be pointless (see Malette v Shulman (1990) 67 DLR (4th) 321)). On the other hand, if there is a real reason to question the validity of the certificate then the cautious response is to treat and let the hospital staff, guided by the doctors, their lawyers and ethics committees sort it out.
So let me now return to the question: No, if a certificate has been completed relying on s 5B the refusal is not ‘no consent for treatment made by the patient’ is it a refusal of consent by their agent or guardian in circumstances where the agent or guardian is authorised to make that decision. It’s not somehow implied to the patient; it is what it is.
The person has consented to an agent making medical decisions. They haven’t signed the refusal certificate but they have authorised the agent to do it in the circumstances set out in s 5B so again it does not meant the patient has refused consent; it means their agent has but that refusal is binding. (It should be noted that a person appointed as an attorney ie with a ‘power of attorney’ is different. A power of attorney relates to a power to deal with a persons assets not their ‘person’; hence in Victoria a person appointed to make medical decisions is called an ‘agent’ not an ‘attorney’ to make the distinction clear. An agent appointed under the Medical Treatment Act 1988 (Vic) can’t sell your house; a person appointed as an attorney under the Instruments Act 1958 (Vic) can’t make medical decisions).
If you want to look beyond the Medical Treatment Act then there is no power to refuse consent on behalf of another person. The doctrine of necesssity would apply to justify the treatment warranted by the patient’s condition. If, later, a decision need be made about whether or not treatment should be discontinued, action in accordance with the Medical Treatment Act and the Guardianship and Administration Act 1986 (Vic) may be required to identify the relevant decision maker and to ensure that they have the necessary information. Consent (and by implication, a refusal of consent) may be given by a person responsible for another person (Guardianship and Administration Act 1986 (Vic) s 37) but at the scene of a cardiac arrest, paramedics will not be able to determine who is the ‘person responsible’ and that person will not be able to meet all the requirements to make the relevant decision. In short absence a Refusal of Treatment Certificate signed by the patient or a duly appointed agent, or some other clear evidence that the person, not a third party, refuses treatment, treatment should be given.
As noted previously the Medical Treatment Act 1988 (Vic) operates along side other legal rights including common law rights to refuse treatment so if the patient themselves has gone to some length to make it clear they don’t want treatment, and we’ve had examples of cards saying particular treatment is not wanted, or DNR tattoos etc, then I think they should be honoured. A refusal by third parties must be treated with more caution but as Andrew has noted, autonomy is a key principle so the presence of third parties saying ‘this person doesn’t want to be resuscitated’ must at least cause ‘pause for thought’. For more detail, see my book Emergency Law (4th ed, 2014, Federation Press) pp 58-61.
It is quite a dilemma here, one wrong action and that can lead to a serious of legal nightmares not just for hospitals but for the family of the patients. What can’t be taken into account is the change in human thinking especially for patients who decide to change their mind and either want to withdraw or enact a DNR order on their lives. Something like this the law has not been able to address because it is impossible to know what everybody is thinking.
That aside, this was a terrific application of the legal aspect on a medical issue that is not discussed everyday.
A daughter #1 converses with her mother post father’s death. Mother states she does not want CPR should she arrest. No other witnesses. Mother soon after goes into the unexpected sudden cardiac arrest. Paramedics arrive. Paramedics commence CPR daughter #2 arrives. Daughter #1 pleads to paramedics to stop CPR stating mother didn’t want to be resuscitated. Daughter #2 does not know about mother’s position on this so cannot support daughter #1.
Where is the legal standing. Which torts, legislation and acts support the daughter and paramedics.
My understanding is, one witness without clear written DNR/NO CPR, is not a credible source.
Many thanks.
Tara
You could not rely on that sort of communication. The presumption has to be to save a life and with no attempt by the patient to document her wishes one simply could not ‘know’ what those wishes were.
Thank you for your prompt response. Where in the legislation is there support for this?
Many thanks,
Tara
The law is not all in legislation. The MEDICAL TREATMENT PLANNING AND DECISIONS ACT 2016 (Vic) sets out details about advance care directives but clearly there is not one of those in this situation so that Act, apart from s 10 won’t apply. Section 10 says ‘Nothing in this Part affects any right of a person under any other law to refuse medical treatment’ and that will include the Common law. The common law says you have a right to refuse treatment and can communicate that in any way that is effective (see Malette v Shulman). The common law also says that treatment can be given to a person who cannot consent provided that it is reasonably necessary in their best interests, and not contrary to their known wishes (In Re F). Here the mother has not taken any effort to communicate what may have been their desires – a conversation with someone is not sufficient any more than a statement ‘I’d like to leave money to ‘x” has effect if the person doesn’t change their will.
This situation is further complicated as there is no evidence that you can assess at this time critical moment that the conversation event happened. I think that’s different to the tattoo example that comes up here a lot as a person who gets ‘do not resuscitate’ on their chest has made a pretty serious effort.
So in this case one couldn’t even pretend to say that you ‘know’ what the patient’s wishes are; but none of that’s in legislation, that’s the common law and also bringing to mind a lawyers thinking on evidence and how you prove matters and experience in how a judge might approach the matter. That’s professional knowledge rather than pointing to ‘a’ law.
thank you. Is there further information I can draw from in your book? If so, where would you direct me?
Kind regards,
tara
Tara, there is a section in my book but I cannot recall the exact pages but I do talk about refusing consent to first aid. For my dynamic conversation see the posts that appear in response to this FAQ;
Who can give consent, who can refuse consent and when is consent not required for emergency medical care?
A: https://emergencylaw.wordpress.com/?s=consent
A: https://emergencylaw.wordpress.com/?s=necessity
Thank you
I’d be very unhappy if an ambulance crew started CPR on a family member even though I had a detailed conversation with that family member about refusing CPR.
Dying unexpectedly is something the lay person doesn’t make formal arrangements for. Advanced Care Plans seem to be usually filled out if death is on the horizon.
I know that bystanders aren’t always be reliable but I thought that’s why paramedics could use their discretion.
If the other family member disagreed with the refusal of CPR then this obviously is a red flag and CPR would commence
Clearly paramedics have discretion but its guided by clinical practice guidelines and it doesn’t mean it will be exercised in the way you want it to be exercised- it’s their discretion not yours. First context is everything (see https://emergencylaw.wordpress.com/2019/10/14/making-decisions-for-others-in-wa/). And in the question posited there was family conflict so you agree with that outcome. But you also have the problem of someone saying ‘I had a detailed conversation’ but is that true? What were the details? When it was post father’s death is the conversation ‘I wouldn’t want to go through that?’ or more detailed etc. It’s true advanced care plans are usually when someone has a terminal diagnosis but they don’t need to be. On the other hand the response on this site to most suggestions that prior wishes should be honoured is that people don’t want to do that for fear that there may be an error. The issue is indeed complex, and what a professional health care practitioner should be aiming to do is honour a patient’s choices, but I suggest in the scenario posited you could have no confidence that the person has expressed a choice. A conversation over the dinner table may not be sufficient. Having said that if and when the person’s in hospital and decisions have to be made about continuing efforts or not then questions will be asked of the family and they will be asked to consider those conversations and think about what their mother would have wanted, but that’s a different scenario than that faced by paramedics on the side of the road where literally seconds count.