This issue was raised on the Facebook page of the Paramedic Observer but I’m taking the liberty of commenting on it here.
The question asked was ‘What liability is there to respond to MedicAlert?’ (though it may be better to phrase it as ‘What obligation is there to respond to MedicAlert?’) The post then linked to two New Zealand articles:
- Death ‘may have opened a Pandora’s Box’ of complaints, Voxy.co.nz 16 July 2015; and
- Cate Broughton, MedicAlert bracelets often ‘ignored’, stuff.co.nz, 15 July 2015
The articles relate two cases where a medic alert warning was ignored. In one a child is reported to have had a life threatening condition that was recorded on the medic-alert bracelet that was ‘ignored’; another involved a patient with a known allergy to an antibiotic that was administered even though the allergy was recorded on the medic alert bracelet. The story does say that the 80 year old patient ‘died six days later’ but it’s not clear if that was due to the allergic reaction or some other condition or complication.
According to the website of the Medic-Alert Foundation (Australia) they offer a number of services. Apart from the familiar medic-alert jewellery that can record relevant conditions they also provide, amongst other things, a ‘24/7 hotline for emergency services and healthcare personnel to call’ and a ‘Wallet sized emergency health card’.
So what is the obligation upon health professionals, paramedics, nurses and doctors, to take account of this information?
The answer is quite simple. The whole point of patient or health care is to advance the interests of the person in need of care. Respect for the principle of autonomy means that the person, first and foremost who knows what is in the person’s best interests is the person themselves. It is for this reason that people must be involved, to the extent that they can be, in their health care decision making and why ‘except in cases of emergency or necessity, all medical treatment is preceded by the patient’s choice to undergo it’ (Rogers v Whitaker (1992) 175 CLR 479, [14] (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ)). The principle of necessity justifies treatment that is necessary and in the patient’s best interests when the patient cannot consent, but not where treatment is contrary to the known wishes of the person (In Re F [1990] 2 AC 1).
When deciding what treatment is reasonably necessary and in a patient’s best interests, the patient’s history is clearly relevant. Whether it’s to determine what treatment they want or what treatment is indicated, or contra-indicated, in the particular circumstances.
A bracelet or necklace, whether it’s provided by Medic-Alert or just something they’ve had engraved at the local jeweller’s is one way of communicating that history. In Malette v Shulman [1990] 67 D.L.R. (4th) 321, the plaintiff carried a card that said she did not want a blood transfusion under any circumstances. The card was ‘the only way possible to notify doctors and other providers of health care, should she be unconscious or otherwise unable to convey her wishes (p 428)’ and via the card she ‘She gave notice to the doctor and the hospital, in the only practical way open to her’ of her wishes (p 431). (See also ‘Medical tattoos offer important health information’ March 3, 2012 )
A medic-alert bracelet may have advance directives (like Do Not Resuscitate) or something else such as recording a prior condition or allergy. In any case, like Ms Malette’s card, it is the only way to communicate with health care professionals if the patient cannot speak for themselves. There can be no justification for ignoring it. A doctor who needs to treat a person could not ignore their advice that they are allergic to a particular drug, regardless of whether that information is given verbally or via a bracelet. A doctor or paramedic who is faced with a semi-conscious patient and who has to try to determine what is the cause of their symptoms cannot sensibly ignore a bracelet that reports the person is epileptic, or diabetic or has any other condition that might be relevant. That of course won’t say that the reason for their current condition is that pre-existing illness but in forming a diagnosis and treatment plan, the health professional should at least consider it.
All of this assumes the medic-alert bracelet is located. If it is not found and there is no negligence in not finding it, eg it’s in the person’s pocket rather than on their wrist so a ‘noes-to-toes’ examination does not turn it up, then of course it can’t be considered. Where it is being worn however, at some point it should be located and once that is done it can’t sensibly be ignored.
If the information is ignored, so the patient receives treatment that is contra-indicated but which would have been avoided if the information on the bracelet had been acted upon, or if diagnosis is delayed again because the information is ignored and if the wrong or delayed treatment can be shown to have made the patient’s long term outcome worse, then there could be liability in negligence. For registered health professionals there could also be issues of professional discipline because one would have to ask whether it is satisfactory professional conduct to ignore the patient’s advice and history when the person has gone to significant lengths to attempt to communicate that relevant information to their health care professionals.
Australian Emergency Law 
Hi Michael,
Thankyou for writing on this topic! It helps a lot. Could I ask you two scenarios on this topic which is a bit grey for me.
1. A scene I have been to is that a pt is unconscious and the family state that he/she does not want to be resuscitated, have a DNR order that they cannot find the paperwork. Can we still legally work on the unconscious patient without the fear of litigation due to the missing paperwork?
2. What if the dying pt who meets capacity and competency verbally states to us they do not want CPR in our care, then dies on route – without paperwork, tattoos, medical arm bands.
Thanks,
Andrew
Thanks Andrew, see my earlier post ‘Withholding Resuscitation in Victoria‘ (April 8, 2013); in particular with respect to your first question. As for question 2 it’s always a question of fact what was said or not said, so what that means is that it can be contestable as different people will have different views. If by ‘dying’ patient you mean someone who is terminally ill and that is known to everyone and they’re being transported for some sort of palliative care, that is not likely to be an issue. If by dying you mean someone who has just been involved in a major traumatic incident and their life is hanging in the balance, one would not want to honour their ‘do not resuscitate me’ as they are in no way informed or their prognosis clear. The best guidance you will find will be in your ambulance protocols and again I refer you to my earlier post, above.
I hope that helps.
This comment was received by email:
I’ve been reading through some of your pages today regarding Medic Alerts and DNR orders, be they jewellery that is worn or a tattooed directive. What I have read seems aimed at health professional and paramedics. As a first aid trainer, I’d really like to clarify if such orders are applicable to the lay person providing first aid in public. I have always believed that they are not applicable, however I am now second guessing myself!
Medic alerts are something we train our participants to look for during a secondary assessment, as they contain valuable information for handover, however in regards to CPR, if there was a chest tattoo for example, it may not be found until after CPR has commenced, most likely only if a Defib was available and being applied would the chest be bared.
So, my questions are –
Once such a tattoo is found, if they ceased CPR would they be negligent in the Duty of Care they have taken on?
If they continued CPR once found, would they be essentially committing an assault, or liable in some way?
The law that allows anyone to treat a person who cannot give consent is the same regardless of whether the person offering assistance is a doctor or first aider. The doctrine is that of necessity which says that care that is reasonably required and in the patient’s best interests can be delivered without consent; but not where it is known that the person does not want the treatment and that refusal was informed, competent and covers the situation that has arisen.
If a DNR tattoo is emblazoned across someone’s chest then one could not be negligent for withholding CPR as there can’t be a duty to provide treatment that is not wanted or necessary in the patient’s best interests – and the patient gets to decide what is in their best interests (Airedale NHS Trust v Bland [1993] A.C. 789).
Could a first aider be liable for assault – yes, necessity does not justify treatment that is not wanted and where that wish has been communicated in this case in a very effective way (Malette v Shulman [1990] 67 D.L.R. (4th) 321).
Good Samaritan law protects a first aid for actions taken in ‘good faith’ but is it good faith to deliver treatment that you know the person doesn’t want? It may be if you feel real doubt about what to do, I don’t think it is if you’re thinking is ‘I’ll get into less trouble here’ or ‘I’ll be liable if I stop’ because then the first aider is considering their best interests, not the patient. A decision to withdraw resuscitation in light of a DNR tattoo can be a ‘good faith’ decision as could a decision to ‘continue’. The advantage of continuing is that it is not an irreversible decision so that the medical staff or paramedics can withdraw treatment later if that is confirmed as appropriate.
It is however unlikely anyone is going to sue the first aider. They would, if treatment is continued, sue the medical staff. If they did sue the first aider a court would no doubt bend over backward to find an excuse because the courts and the law want to encourage people to step up and act and they can’t be expected to know the full implications. Someone’s who’s done a 2 day first aid course can’t be expected to think these issues through but medical practitioners and hospitals have both the training and resources such as hospital ethics committees, to move through the issues. So the risk to first aiders is, as in most cases, very small either way.
Having said that, the law and ethics says people have the right to determine what treatment they do or do not want. Getting a DNR tattoo seems like an absolute clear communication. A person who has gone to that effort must intend that their wishes be acted upon and in my view that should be honoured.
As a first aider, I have not yet come across a First Aid course with CPR comonent, that trains us properly about legalities of DNR wishes, such as tatoos and medialert bracelets, or ACD’s. This should be included in all first aid training.
The reality is that it’s not really significant in a first aid context – if you are likely to come across such directions eg because you work in a care environment then it should be included in your training there. To include it in a first aid course would add a degree of complexity in circumstances where no-one is going to criticise the first aider – decisions about withholding or withdrawing resuscitation are really matters for paramedics and other health care professionals