Another question for first aiders:
Hi Michael, I have a question in relation to the administering of emergency first aid, especially in circumstances where the “patient” is unable to provide permission themselves.
I believe it is generally well understood that a person is able to reject first aid treatment even if the obvious outcome from rejecting that first aid assistance is dire. However where a person is unable to make their wishes known (such as a state of unconsciousness) the First aid worker can safely assume the person would have given their consent and can commence treatment such as resuscitation, application of a defib device or whatever else the first aid person believes is appropriate.
However what happens if, upon commencing that potentially life saving treatment a third person steps forward and claims to be a close relative of the patient and demands that you cease your treatment. I am thinking of someone claiming to be a Husband, Brother or Father.
In some cultural settings it may be perceived that the male relative always speaks for the female, but what does Australian law say about it?
Can the the person claiming to be a close relative stop the persons treatment?
Does it make a difference if the patient is a child?
I look forward to your reply.
Let me start with an essential correction. My correspondent says
I believe it is generally well understood that a person is able to reject first aid treatment even if the obvious outcome from rejecting that first aid assistance is dire. However where a person is unable to make their wishes known (such as a state of unconsciousness) the First aid worker can safely assume the person would have given their consent and can commence treatment such as resuscitation, application of a defib device or whatever else the first aid person believes is appropriate.
That may be generally well understood … and it’s wrong. Let me say that again – it’s wrong. What’s being described here is what is traditionally called implied consent and implied consent does not justify the treatment of the unconscious, the doctrine of necessity does. If a person is not capable of making a decision, reasonable treatment may be given but you cannot assume consent. Rather the relevant law is that of necessity. In Re F [1990] 2 AC 1 Lord Goff said:
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.
The problem with the notion of ‘assumed’ consent was that it provided for the legal fiction of assuming consent when people simply could not consent (eg children) or when people had clearly indicated they did not want the treatment.
So a person can receive treatment that is necessary and in their best interests but not if it is contrary to their known wishes. Can a person claiming to be a close relative of an adult stop the person’s treatment? The answer is generally no.
If a person claiming to be a close relative demands that you cease treatment that may cause pause to think about whether they are telling you of the person’s prior wishes and can they support that, ie can they produce for example a refusal of treatment certificate. Whether you accept that depends on the circumstances protocols and procedures of the ambulance service involved – see Withholding Resuscitation in Victoria (April 8, 2013).
If the person is the parent of a child or the adult patient’s appointed legal guardian and medical attorney (different names in different states) then they are the people entitled to make treatment decisions. It is often the case that the treatment must accord with the patient’s known wishes and/or be in the patient’s best interests. In many cases the consent is not required in an emergency (see for example Guardianship Act 1987 (NSW) s 37).
The common law says that a competent adult has the right to refuse treatment even if that means they will die. The critical questions are:
- Was the patient competent?
- Was their refusal informed?
- Does it cover the situation that now arises?
If the answer to those three questions is ‘yes’ then the refusal is binding, and must be honoured (see In Re T [1992] EWCA Civ 18). If the refusal is being given by a parent or guardian the same questions have to be asked and answered. If the parent or guardian is not fully informed because of the emergency nature of the situation and there is no time to explain their options any purported refusal will not be binding.
In short where you have a previously competent adult who is now incapable of making decisions due to the nature of their injuries or illness then no-one has the authority to refuse treatment on their behalf and treatment that is reasonably necessary and in the patient’s best interests can be given. A parent or guardian can refuse treatment but that is not likely to be relevant in the situation of emergency first aid.
For a more detailed discussion see my book Emergency Law, (The Federation Press, 4th ed, 2013) pp 58-60.
Australian Emergency Law 
Maybe from a legal stand point, however, I have jad a muslim husban refuse treatment of his wife. I did ask,why call an ambulance then?….that is another story as someone else did.
Direction was to get a ANR signed and leave.
It wasn’t life threatening, but, it does highlight that there are other factors. In my hospital setting, whole blood is refused also.
Not as simple as it ised to be. Any service i know of has a protocol for this situation.
It’s a messy area. Abuse? Language barriers? Sharia law?
Cover your butt and pass up the line, do not force treatment or you WILL lose.
I can’t agree with this. If the patient is conscious and agrees with the ‘third party’, and it’s not life threatening all well and good. People can refuse treatment including whole blood but the issue is always what the patient wants. Don’t assume anything is required by ‘sharia law’ unless you are a scholar of muslim theology and know what the views are of the people you are dealing with.
Whether you ‘force treatment’ must depend on the circumstances. If you have a person suffering life threatening haemorrhage and someone says ‘you can’t treat my wife’ your answer would have to be that you are going to save her life. If the putative husband wants to get involved that’s when you call police. Equally people saying ‘don’t treat my child’ and the child is going to do you ignore that – unless the child has a diagnosed terminal illness and their death is expected. In a first aid scenario you are most often unable to determine whether the criteria for a valid refusal of life saving treatment has been met and even less so when the person trying to refuse is not actually the patient.
It’s not that you ‘will’ lose – it will depend on the circumstances.
Hi Michael
In your response above you mention “If you have a person suffering life threatening haemorrhage and someone says ‘you can’t treat my wife’ your answer would have to be that you are going to save her life.” I would like to know how this approach applies, expecially to a case such as Malette vs Shulman (https://wohanley.com/law/outlines/Torts/Defences/Consent/Consent_to_Medical_Procedures/Malette_v._Shulman.html) where the doctor was then accused of battery for his life saving treatment. As someone looking to be able to apply these laws under pressurised conditions, I am trying my best to understand where the line is drawn in the sand. Your time is much appreciated
Kind Regards – Kristijan
The issue has to be considered in context. First Malette v Shulman was a very different fact situation than the one discussed in the post. In Malette’s case she was carrying a card stating her wishes and this was confirmed by her daughter. This was not an issue of a third party purporting to make the decision on the patient’s behalf but rather confirming that her mother still held the views expressed on the card. For a paramedic if someone simply steps forward at a life threatening emergency they don’t have the authority to give or refuse consent unless they can satisfy you that they are an appropriate alternate decision maker. Ideally that involves the production of some sort of documentation but also relevant context. Certainly if the person is at their home and there is documentation on file confirming who is the decision maker it’s no issue. If it’s somewhere else one has to put it in context – so for example if the person is on a day trip from the nursing home and the person speaking is the nurse escort telling you that there are advanced care directives in place then that has to be given due weight.
In other circumstances if you are satisfied that the person speaking is really in a position of care or knowledge (eg the patient’s daughter in Malette) then what they are doing is giving you evidence of the patient’s prior wishes rather than acting as a decision maker on behalf of the patient. And in Malette’s case the daughter’s statement that her mother did not want a blood transfusion confirmed the details that Ms Malette carried. That was not about a third party making a decision for someone else but about respecting the patient’s prior wishes communicated in the most effective way that she could think of at the time (remembering that the final decision in Malette was decided in 1990 but the incident occurred in 1979).
The situation that the post above was considering where someone simply steps forward and says ‘I don’t want you to treat this person’.
I hope that helps.