In response to the post MFB First Responders and Withholding Resuscitation (March 7, 2017) I have been provided with a copy of two guidelines issued by the Country Fire Authority (CFA).  I am not sure if these are the same as those issued by the MFB but I imagine that they are at least similar.  The documents provided are:

  • EMR A 180 00 Do Not Resuscitate Orders (Issue 3, November 2004) and
  • EMR A 185 00 Withholding of Treatment (Issue 1, November 2004).

I assume that they are still the current documentation.

I am sure that the CFA and Ambulance Victoria have lawyers, and I would hope that lawyers looked over these documents before they were issued, but whether they did or did not these documents are very disappointing and do not reflect either law or the principles of bioethics that support and justify medical treatment including resuscitation.

EMR A 180 00 Do Not Resuscitate Orders says:

Pre-hospital personnel may be presented with a document or identification tag that is claimed to be a “Do Not Resuscitate Order.” Such documents may be signed by a medical officer or the patient and may be either handwritten or typed.  Verbal requests may be made by guardians, family members or friends and it may be claimed that these statements represent the wishes of the patient.

CFA personnel are not in a position to make a legal judgement regarding the validity of documents which are presented at the scene of an emergency.  Likewise, CFA personnel are not in a position to make judgements about the validity of verbal statements.  If an emergency call has been placed, it should be assumed that someone present is either unaware of the DNRO, or disputes it’s validity or applicability to the situation.

Procedures

  1. Documents or statements that are claimed to be “Do Not Resuscitate Orders” are not acceptable grounds for CFA personnel to withhold any form of treatment including resuscitation when in the act of emergency response.
  2. CFA personnel presented with documents or statements that are claimed to be “Do Not Resuscitate Orders” should proceed to give resuscitation and/or supportive measures as the patient and incident require, unless there are other acceptable grounds for withholding treatment.
  3. Acceptable grounds for withholding resuscitation or other treatment are detailed in Operational Guideline “Withholding of Treatment” – A 185 00.

EMR A 185 00 Withholding of Treatment says:

In the case of extreme age, debility or terminal disease, death may be expected and even desired. In such cases, a patient and their medical carers may have agreed that, in the event of death, no active resuscitation should occur. Emergency Services response should not normally be requested in such situations. Firefighters may, however, be dispatched to such situations as a result of initial panic or misunderstanding on the part of the caller or because of limitations to the information available to dispatchers.

Upon arrival at the scene, CFA personnel will not initially be in a position to judge that the call for Emergency Services assistance was invalid. As detailed in Guideline A180 00, written or verbal “Do Not Resuscitate Orders” are not in themselves valid grounds for withholding treatment.

Acceptable grounds for CFA personnel to withhold treatment are listed below.

Procedures

  1. Treatment should only be withheld if:

1.1. Attempting to provide treatment would involve excessive danger for responding crew members or others present.

1.2. The patient fits the “obviously dead” criteria (see A-175-00 “Obvious signs of death”)

1.3. A conscious and oriented patient refuses treatment (see A-100-00 “Refusal of treatment”). Formally confirm the situation by having patient sign the “refusal of treatment” section of the PCR.

1.3.1. If a patient loses consciousness, treatment should be instituted)

1.4. Someone else takes responsibility for treatment not proceeding. This may be

1.4.1. AV (if prior to ambulance arrival this may be obtained vial clinical advisor).

1.4.2. Medical practitioner at the scene (see A-140-00 “Medical Practitioner at scene”). Formally confirm the situation by having Medical practitioner sign the ‘handover to doctor’ section of the PCR.

1.4.3. Person who initiated call (see A-090-01 “Denied patient access”). Formally confirm the situation as a “denied patient access” situation by having the person sign the ‘refusal of treatment’ section of the PCR.

1.4.4. Another person who physically or verbally actually denies access to the patient, or who agrees to technically deny access by signing the “refusal of treatment” section of the PCR (see A 090 00 “Denied Patient Access”)

1.5. If none of the above can be established, then CFA personnel should proceed to provide treatment as the patient and incident requires until handover to AV.

1.6. Ensure the situation has been fully documented on the PCR, signed and witnessed.

(I note that the material above has been typed by me from the document, it is not a photo or scanned copy.  The various errors and inconsistencies, eg in EMR A 180 00 “it’s” instead of “its” and in in EMR A 185 00 the close parenthesis at the end of [1.3.1] with no opening parenthesis, the inconsistent use of hyphens when referring to other guidelines and the inconsistent use of capital letters all appear in the original).

Do Not Resuscitate documentation

With respect to the claim that CFA personnel are in no position to judge the validity of a Do Not Resuscitate order or equally an advance directive refusing consent, this argument was raised by Dr Shulman when he gave a blood transfusion to a member of the Jehovah’s Witness who was carrying a card saying that she did not want blood under any circumstances (Malette v Shulman [1990] 67 D.L.R. (4th) 321). Notwithstanding that he treated her, with a blood transfusion, and saved her life but was still liable for assault.  He argued that he could not determine whether or not there was a valid refusal as he could not communicate with the patient.  The court said that she had done all that she could do to convey her wishes by signing and carrying the relevant card.  In the circumstances her wishes should have been honoured.  The Ontario (Canada) Court of Appeal held that ‘While in an emergency the doctrine of necessity may protect the physician who acts without consent, the doctor is not free to disregard a patient’s advance instructions. The plaintiff had conveyed her wishes in the only way possible’, further ‘Any doubts about the validity of the card were not rationally founded on the evidence’.   Robbins JA, on behalf of the court said

Unless the doctor had reason to believe that the instructions in the Jehovah’s Witness card were not valid instructions in the sense that they did not truly represent the patient’s wishes, in my opinion he was obliged to honour them. He has no authorization under the emergency doctrine to override the patient’s wishes. In my opinion, she was entitled to reject in advance of an emergency a medical procedure inimical to her religious values.

A DNR or other advance directive refusing CPR may not be based on religious grounds but that is not to the point.   As the court said:

The right of self-determination which underlies the doctrine of informed consent also obviously encompasses the right to refuse medical treatment. A competent adult is generally entitled to reject a specific treatment or all treatment, or to select an alternate form of treatment, even if the decision may entail risks as serious as death and may appear mistaken in the eyes of the medical profession or of the community. Regardless of the doctor’s opinion, it is the patient who has the final say on whether to undergo the treatment. The patient is free to decide, for instance, not to be operated on or not to undergo therapy or, by the same token, not to have a blood transfusion. If a doctor were to proceed in the face of a decision to reject the treatment, he would be civilly liable for his unauthorized conduct notwithstanding his justifiable belief that what he did was necessary to preserve the patient’s life or health. The doctrine of informed consent is plainly intended to ensure the freedom of individuals to make choices concerning their medical care. For this freedom to be meaningful, people must have the right to make choices that accord with their own values regardless of how unwise or foolish those choices may appear to others…

In Hunter and New England Area Health Service v A [2009] NSWSC 761, McDougall J said:

A person may make an “advance care directive”: a statement that the person does not wish to receive medical treatment, or medical treatment of specified kinds. If an advance care directive is made by a capable adult, and is clear and unambiguous, and extends to the situation at hand, it must be respected. It would be a battery to administer medical treatment to the person of a kind prohibited by the advance care directive.

In Brightwater Care Group (Inc) v Rossiter [2009] WASC 229, Martin CJ set out

… a number of well-established principles.

23 The first is that a person of full age is assumed to be capable of having the mental capacity to consent to, or refuse, medical treatment: Re MB (Medical Treatment) [1997] EWCA Civ 1361; (1997) 2 FCR (UK) 541 (per Lady Justice Butler-Sloss); Ms B v An NHS Hospital Trust [2002] EWHC 429 (Fam); (2002) 2 FCR (UK) 1 [10] (per Dame Butler-Sloss); and Hunter and New England Area Health Service v A [2009] NSWSC 761 [23] (per McDougall J)…

24 Another principle well established at common law is the principle which has been described in the cases as the right of autonomy or self-determination. Lord Hoffmann has described this right as being related to respect for the individual human being and in particular for his or her right to choose how he or she should live his or her life: Airedale National Health Service Trust v Bland [1992] UKHL 5; [1993] AC 789, 826. Included within the right of autonomy or self-determination is the right, described as long ago as 1914 in the United States by Justice Cardozo, as the right of ‘every human being of adult years and sound mind … to determine what shall be done with his own body: Schloendorff v Society of New York Hospital 211 NY 125 (1914) , 129.

25 That right has been recognised in Australia and referred to with approval by the High Court: F v R (1983) 33 SASR 189, 192 – 193 (per King CJ); Rogers v Whitaker[1992] HCA 58; (1992) 175 CLR 479, 487. That right also underpins the established legal requirement that the informed consent of the patient is required before any medical treatment can be undertaken lawfully. That principle has been affirmed by the High Court on a number of occasions: Secretary of Department of Health and Community Services v B [1992] HCA 15; (1992) 175 CLR 218 (Marion’s case), 233 and Rogers v Whitaker, 489. Also see the English case of Airedale NHS v Bland, 857.

26 The corollary of that requirement is that an individual of full capacity is not obliged to give consent to medical treatment, nor is a medical practitioner or other service provider under any obligation to provide such treatment without consent, even if the failure to treat will result in the loss of the patient’s life [emphasis added]. That principle has been established by decisions in each of the major common law jurisdictions, including the United States (Bouvia v Superior Court of Los Angeles County 179 Cal App 3d 1127(1986), 1137 and 1139 – 1141); Canada (Nancy B v Hotel-Dieu Quebec (1992) 86 DLR (4th) 385; Malette v Shulman (1990) 67 DLR (4th) 321, 328); the United Kingdom (Airedale NHS Trust v Bland, 857 (Lord Keith) and 864 (Lord Goff); Ms B v An NHS Hospital Trust [16] – [21]); New Zealand (Auckland Area Health Board v Attorney General [1993] 1 NZLR 235, 245) and Australia (Hunter and New England Area Health Service v A, [9] – [15]).

27 The principle is applied without regard to the reasons for the patient’s choice, and irrespective of whether the reasons are rational, irrational, unknown or even non-existent: Re T (Adult: Refusal of Treatment) [1992] EWCA Civ 18; (1993) Fam 95, 113 (cited with approval in Ms B v An NHS Hospital Trust [18] and Hunter and New England Health Service v A [15]).

So a person has a right to refuse CPR and that has to be respected.  If they communicate that to potential rescuers, perhaps through formal DNR documentation then they have ‘chosen in the only way possible to notify doctors and other providers of health care, should she be unconscious or otherwise unable to convey her wishes’ of what those wishes are.   In the absence of some reason, some evidence, to doubt the validity of the document it must be honoured (see also Ignoring a medic-alert bracelet (July 19, 2015) and Medical tattoos offer important health information’ (March 3, 2012)).

Where a DNR order is made on the basis that the treatment is futile, that is given the patient’s underlying conditions it will not advance their interests, that too must be honoured.  Necessity only justifies treatment that is in the best interests of the patient and if the treating medical staff in consultation with the patient (to the extent that they can take part) and the family have decided that treatment is futile then it may be a battery to continue with that treatment; Airedale National Health Service Trust v Bland [1993] AC 789.

Requiring some reason to doubt the validity of a document is not the same as being unable to confirm its validity.  In guideline EMR A 180 00 Do Not Resuscitate Orders the CFA says “If an emergency call has been placed, it should be assumed that someone present is either unaware of the DNRO, or disputes it’s validity or applicability to the situation.”  The implication is that the very fact that emergency services have been called is itself reason to doubt the validity of the document. But in EMR A 185 00 Withholding of Treatment it says “Firefighters may, however, be despatched to such situations as a result of initial panic or misunderstanding on the part of the caller or because of limitations in the information available to dispatchers.”  These positions are clearly inconsistent.  There may be a valid DNR document that everyone agrees with but still emergency services are called ‘as a result of initial panic or misunderstanding on the part of the caller’.  The mere fact that a call has been made is not evidence to doubt the validity of the document.

The fact that the CFA is based in Victoria is even more problematic as the Parliament of Victoria has specifically made attempts to recognise and give effect to a person’s wishes.  Where a refusal of treatment certificate has been completed in accordance with the Medical Practice Act 1988 (Vic) the patient and their doctor have attempted to communicate their wishes in a way provided for by law.  A doctor would have to accept and honour such a certificate and so should the CFA.

As a matter of law, Do Not Resuscitate Orders” are valid grounds for withholding treatment in accordance with the terms of those documents.  That’s the very point of them. Failure to do so is to dishonour a patient’s right to self-determination and/or to impose futile treatment that is not in the patient’s best interest.  It is not justified by the common law of necessity or any other doctrine.

Denied patient access

The paragraphs on ‘denied patient access’ are also concerning because they are encouraging CFA firefighters to make decisions on fictitious grounds.   If a person says ‘the patient has a DNR order’ firefighters are meant to treat the patient unless the patient who made the call or any other person at the scene (but not necessarily their care giver, or attorney) ‘denies patient access’.  But the person may not deny access, they may say, ‘Come in, thanks for coming, we weren’t really expecting the CFA, we rang the ambulance because we thought we had to. Here’s mum’s DNR paperwork’.   To say ‘we’re going to resuscitate this person unless you pretend you’ve denied us access’ is just silly.  It gets worse at [1.4.4] where it refers to a person “who agrees to technically deny access by signing the “refusal of treatment”’.  Either access to the patient is denied or it isn’t.  If it is I would expect the CFA to be calling for police assistance because if someone has rung triple zero and someone else is denying the responders access to the patient, something is going on that needs urgent investigation.  No doubt the CFA could even use force to access the patient.

For someone to sign a refusal of treatment certificate they are not actually or technically denying access.  This is akin to the situation where paramedics advise people they don’t need to go to hospital and then say they ‘refused treatment’ (see Transport everyone or act as a professional? A question for paramedics (May 6, 2013)).  Trying to fit a story into a situation that relieves the responders of responsibility – I couldn’t treat as I was refused access (when you weren’t) or I couldn’t treat as I offered but the patient refused (when in fact the patient was advised treatment was not required) – is a terrible example of trying to shift responsibility and risk.  It is unprofessional.  People should be willing to stand by their decisions and record on patient records what actually happened or the records are meaningless.

If the person’s appointed guardian or other substitute decision maker has refused treatment it should be record as that, not as ‘denied patient access’.  And if the CFA is going to accept that the person who initiated the call or any other person at the scene can refuse treatment, they should record that and not pretend that they have been ‘physically or verbally’ or ‘technically’ (whatever that means) denied access.  And if they accept that the person who initiated the call, or any other person can refuse treatment they should also accept that the patient can refuse treatment by communicating that decision through their DNR paperwork.

Accepting that a person can refuse treatment if they sign off on the PCR is to say ‘we will accept the DNR order if you sign this form’ as if that absolves the CFA from all responsibility. It doesn’t.  The CFA is responsible for what the CFA does and a decision to accept the refusal of treatment by anyone who is prepared to pretend that they have denied patient access (see [1.4.4]) is worse than acknowledging that the CFA is giving effect to the DNR order.  It is one thing to say ‘we withheld resuscitation as we were presented with a DNR order, apparently signed by the patient, and their doctor and supported by the people there where we had no reason to doubt its authenticity’; quite another to say ‘a person, any person, at the scene agreed to ‘technically deny patient access’ by signing the form so we stopped treatment’.

Pretending that the person has ‘denied patient access’ is just that, a pretence, and a pretence doesn’t change the legal situation or the fact that the decision to withhold resuscitation is a choice of the CFA.  Such attempts at fiction brings the conduct of the CFA and the value of its PCR as evidence into disrepute.

Conclusion

Failure to honour an advance directive or DNR order is a failure to respect the person’s right to make decisions about their medical care and is contrary to law.    There is nothing in the CFA Act or the common law to justify the blanket refusal to consider DNR documentation set out in the CFA guidelines.

The CFA, in conjunction with Ambulance Victoria should be rewriting these to make the two guidelines consistent with each other, and with the current state of Victorian law.  Failure to do so is a failure to provide an appropriate and professional service to the Victorian community and is also a failure to properly prepare CFA members for the situation they may face.  It may also leave them vulnerable to cross examination and criticism in rare but foreseeable circumstances where their actions and decision making are reviewed by a coroner, a court or police and they claim they were ‘denied access’ when that is not what really happened.