A West Australian paramedic asks:

… a few questions regarding the legality of ‘not for resuscitation’ (NFR) forms in Western Australia.

Frequently we are given not for resuscitation forms from hospitals when transporting patients either home from an admission or between hospital facilities. Each hospital in WA seems to have their own form developed by the hospital with varying format and requirements for who may initiate a form and how many signatures are required (E.g some need family and two doctors to agree, others only need a single doctor and no family). Some of these forms are labelled “for this admission only”.

None of these forms are of the format of the ‘advanced health directive’ form available from the state government. The NFR forms we see are usually filled out by doctors on behalf of patients who are not competent to make decisions, e.g dementia. There has been discussion by ambulance staff regarding the legalities of these forms outside a hospital as these are hospital forms.

So far I have been unable to find much information on legislation regarding NFR’s (particularly if a patient is unable to make decisions for themselves) in Western Australia, the only information I can find refers to advanced directive forms which appear much different.

My questions are:

  1. Are these forms legally valid outside of a hospital, seeing as they are hospital developed forms and do not appear the same as an advanced health directive form?
  2. Are forms initiated by a doctor or family on behalf of a patient legally valid for patients who are unable to make decisions for themselves e.g. advanced dementia?
  3. I understand no one has yet been sued for attempting to help in an emergency, but in the instance a NFR form is ignored – due to not having a copy present, believed to be incomplete or a belief it isn’t legally valid, could the responder be guilty of assault for administering CPR.

Western Australia has no ambulance service legislation. It does have legislation dealing with ‘advanced health directives’ (Guardianship and Administration Act 1990 (WA) Part 9B).  Where an advanced health directive has been made on the form and in the circumstances required by the Act, then the decision made in that directive applies if the person is no longer able to communicate their wishes (s 110S(1)).  There are circumstances in which the decision will no longer apply but they need not be discussed here.  Most importantly Part 9B does not ‘not affect the common law relating to a person’s entitlement to make treatment decisions in respect of the person’s future treatment’ (s 110ZB).  It is the common or judge made law that is most relevant here.

The common law says that ‘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)).   Where a patient’s consent is required, it follows that a patient can refuse consent even if that means that they will die.  In Airedale NHS Trust v Bland [1993] AC 789, Lord Lord Goff said (at 864):

… it is established that the principle of self-determination requires that respect must be given to the wishes of the patient, so that if an adult of sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged, the doctors responsible for his care must give effect to his wishes, even though they do not consider it to be in his best interests to do so. … [t]o this extent, the principle of the sanctity of human life must yield to the principle of self-determination…

The common law of necessity (In Re F [1990] 2 AC 1) says:

… 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.

Where patients are not competent to make decisions necessity (and not fictitious notions of ‘informed consent’) justify treatment that is in the patient’s best interests but not treatment that they have previously made clear that they do not want.  In In Re T [1992] EWCA Civ 18 it was said that a refusal of treatment must be competent, informed and cover the situation that now arises.  If that is the case the decision to refuse treatment must be honoured.

Exercising these common law rights don’t require a particular form and the provision of s 110ZB of the Guardianship and Administration Act 1990 (WA) confirms that is still the case in WA.   Where the form has been completed by the patient or they have otherwise expressed and have had documented their treatment decision that remains binding on everyone, including paramedics (see also Medical tattoos offer important health information (March 3, 2012)).

Others may also make health care decisions for those that cannot decide for themselves. An enduring guardians can make medical treatment decisions in the best interests of the incompetent person Guardianship and Administration Act 1990 (WA) ss 45, 51 and 110G).   Where there is no guardian the ‘person responsible’ (ie the patient’s spouse or nearest relative) can also make medical treatment decisions (s 110ZD).   Having made that decision there is no requirement that it be communicated on a particular form (s 110ZK(2)(a)(ii)(II)).

In Western Australia a health professional is a person registered under the Health Practitioner Regulation National Law (Western Australia) (s 110ZH and Civil Liability Act 2002 (WA) s 5PA(a)).  Paramedics are not registered health professionals so that provision does not apply to them.    A health professional is also a ‘person who practises a discipline or profession in the health area that involves the application of a body of learning’ (Civil Liability Act 2002 (WA) s 5PA(b)) and that probably does include a paramedic, at least a university qualified paramedic.    A ‘health professional’ can rely on treatment decision made by a guardian or person responsible (Guardianship and Administration Act 1990 (WA) s 110ZK) so if a guardian or person responsible has refused treatment then that too is binding.

What of forms not completed by the family?  The first part of the doctrine of necessity was that treatment must be such that ‘a reasonable person would in all the circumstances take, acting in the best interests of the assisted person’.  That begs the question fo what is there best interests.  In Airedale NHS Trust v Bland [1993] AC 789 the UK House of Lords had to consider whether life sustaining treatment could be withdrawn from Anthony Bland.  Anthony had been a victim at the Hillsborough football tragedy of 15 April 1989.  95 people had died on that day or in the immediate aftermath.  Anthony was left in a persistent vegetative state.  He died on 3 March 1993 and was the 96th fatality from that event.

Prior to his death, the treating doctors sought permission to withdraw feeding and other care that was sustaining Anthony’s life.  The Crown solicitor advised them that they may be guilty of murder by withdrawing that treatment.  The health service (the Airedale National Health Trust) took the matter to court seeking a declaration that the decision to withdraw treatment would be lawful.  The courts agreed.  In the House of Lords it was held that a doctor’s duty was to act in their patient’s best interests, but the provision of futile treatment was neither advancing the patient’s interests and may be contrary to his best interests.  Lord Browne-Wilkinson said:

In my judgment it must follow from this that if there comes a stage where the responsible doctor comes to the reasonable conclusion (which accords with the views of a responsible body of medical opinion) that further continuance of an intrusive life support system is not in the best interests of the patient, he can no longer lawfully continue that life support system: to do so would constitute the crime of battery and the tort of trespass to the person. Therefore he cannot be in breach of any duty to maintain the patient’s life. Therefore he is not guilty of murder by omission.

The judgment is long and complex and I won’t go through it all but the gist of the conclusion is that doctors are not obliged to provide futile treatment that is treatment that will not treat the patient’s condition.  To give a simple example, a doctor is not obliged to prescribe antibiotics for a viral infection as they are futile.

Hopefully no single medical practitioner determines that further treatment is futile or not in the patient’s best interests. Hopefully that decision is made by a medical treatment team and the family and the patient to the extent that they can be involved.  But if it is the case that further treatment is futile, for example that the person is in the terminal stage of a terminal illness, then it is appropriate to withhold further treatment.  An NFR order signed by a doctor and delivered to paramedics is evidence that this decision has been considered and made.   What follows is that if the ‘order’ is made on the basis of an informed clinical judgment that the treatment is futile it is not so much they are ‘binding’ (a doctor can’t tell a paramedic what to do – see Step aside – I’m a doctor (October 17, 2014)) but one would have to consider that it is a serious ethical issue to administer treatment when a person’s treating doctor has determined that the very treatment is not warranted in the circumstances.

Let me then turn to the questions asked:

  1. Are these forms legally valid outside of a hospital, seeing as they are hospital developed forms and do not appear the same as an advanced health directive form?

Yes, the common law is preserved so the ‘Advanced health directive’ form is one way, but not the only way for a patient to communicate their wishes.

  1. Are forms initiated by a doctor or family on behalf of a patient legally valid for patients who are unable to make decisions for themselves e.g. advanced dementia?

Yes; If the NFR order is made by a doctor on an assessment that resuscitation is futile that is not so much binding but is a relevant factor to consider and it would be appropriately to honour it.  A paramedic in Western Australia has no more power to provide treatment that is not in a patient’s best interests than anyone else.  If there is an informed medical opinion that for this patient further treatment is futile that should be honoured.

  1. I understand no one has yet been sued for attempting to help in an emergency, but in the instance a NFR form is ignored – due to not having a copy present, believed to be incomplete or a belief it isn’t legally valid, could the responder be guilty of assault for administering CPR.

This is a dilemma.  If the refusal of treatment form is ignored simply because the paramedic would rather treat than not treat or because he or she thinks that is the legally ‘safer’ position then that may be an assault, particularly if it is the patient that has refused treatment.  But if in fact the refusal was not properly made it may be negligent.  In In Re T [1992] EWCA Civ 18, Lord Justice Staughtan said (at [60]):

The notion that consent or refusal of consent may not be a true consent or refusal presents a serious problem for doctors… The surgeon will be liable in damages if he operates when there is a valid refusal of consent, and liable in damages if he fails to operate in accordance with the principle of necessity when there was no valid decision by the patient…

That must be true for a paramedic too.  If you have genuine doubt about the decision and treat, but the court says the decision was valid and binding then the treatment is an assault.  The alternative for a paramedic in the circumstances is not so clear.  If you have actually been given documentation that says a treatment decision has been made it can hardly be negligent for a paramedic to honour that even if, later, it turns out the doctors or the family had not properly considered the situation or deliberately set out to harm the patient.  The paramedics can only go on the documentation they have.

In most states paramedics employed by the relevant state ambulance service could rely on provisions that protect them from liability for acts done in the good faith performance of their duties.  In the absence of any ambulance service legislation in WA, paramedics in that state don’t have that extra level of legal protection.

There have been many posts on this site about refusing and withholding treatment: see Refusing treatment.