This question again raises the right of a person to refuse treatment, even when there life is at risk.  Today a paramedic writes to discuss:

… an unusual case … which I believe warrants an objective legal opinion.

The case involved an elderly male patient who had suffered a CVA and presented with a significant left sided deficit and slurred speech.

Despite the patient’s acute condition, he maintained a GCS [Glasgow Coma Scale] of 15 (i.e. he was fully conscious, orientated, and aware of his condition).

He was compliant with the paramedics, and consented to all of their assessments.

However, when the paramedics suggested that he should be transported to the hospital for further assessment and treatment, he flat out refused.

The patient stated that he was also suffering from a terminal cancer, and did not wish to go to hospital to die.

The paramedics accepted the patient’s refusal after applying the [prescribed] criteria.

However, they were concerned that the patient shouldn’t be left at home alone without the physical  capacity to care for himself, or a responsible carer.

Therefore, they contacted the [Ambulance Service’s] medical consult line and spoke with Dr …, and explained the situation.

They intended to explore options to ensure the patient’s well-being, such as possibly arranging for a doctor, nurse or other carer to visit the patient in his home.

During this call they handed the phone to the patient so he and Dr … could have a conversation.

Soon after, Dr … told the paramedics that they needed to take a pragmatic approach, and he then instructed them to transport the patient to the hospital against his will.

Being unable to physically resist (due to his acute condition) the patient was loaded into the ambulance and transported to a nearby hospital.

I would appreciate if you would consider this information, and provide an opinion on the lawfulness (or otherwise) of Dr …’s directive and the transport of the patient against his will.

In Rogers v Whitaker (1992) 175 CLR 479, at [14] Chief Justice Mason along with Justices Brennan, Dawson, Toohey and McHugh said ‘… except in cases of emergency or necessity, all medical treatment is preceded by the patient’s choice to undergo it’.  This is not controversial.  Consent converts what would otherwise be a battery into a lawful touching.

With respect to the exception for ‘ emergency or necessity’ I have argued elsewhere that in my view the court was using those terms as synonyms, not to suggest that there is an exception for emergencies and another for necessity (see Eburn, M., Emergency Law (4th ed, 2013, Federation Press).  There is only one exception and it is captured by the concept of necessity – see The doctrine of necessity – Explained (January 31, 2017).  The doctrine of necessity allows treatment, without consent, when the patient cannot (not does not) consent and the treatment is offered in the best interests of the patient.    But (In Re F [1990] 2 AC 1):

… officious intervention cannot be justified by the principle of necessity. So intervention cannot 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.

To refuse treatment a person must be informed; competent and the refusal must extend to the situation that has arisen ([1992] EWCA Civ 18).  A person has decision-making capacity if they are able to understand the nature of the suggested treatment, weigh up the consequences of and communicate his or her decision (In Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290; Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112, 169).

On those principles if the patient was competent, was capable of understanding the advice given by both the paramedics and the doctor and understood the implications of his decision he was entitled to refuse consent and to have that refusal honoured.

The question I don’t know the answer to was ‘what was the basis of the doctor’s direction to ‘take a pragmatic approach’ and transport the patient?’  Did the doctor, in good faith, form an assessment of the person, based on the discussion and the patient’s answers to the question asked, that there was some real question of the person’s competency?  If so the advice ‘take a pragmatic approach’ might have meant ‘I can’t assess his competence and I have some reason to suspect that he is not in fact competent, so the pragmatic response is to transport so his mental state can be appropriately assessed’.  If there was, in the doctor’s mind, a genuine concern for the patient’s capacity that may be a reasonable thought.  However the doctor was on scene and the paramedics – trained health professionals – were.  The doctor should have discussed the concerns with the paramedics as they would have been able to give their ‘on the ground observations’ and between them they should have considered the patient’s competence.

If, on the other hand, ‘pragmatic approach’ meant – “transport him because he can’t actually stop you and if we don’t and he dies we’ll be in trouble and, rather than try to ‘ensure the patient’s well-being [by] … arranging for a doctor, nurse or other carer to visit the patient in his home’ it will be easier and release the paramedics sooner if we just transport him” then that was both unethical and unlawful.  It’s unethical as it is not showing respect for personal autonomy and because it is choosing to act in the interests of the service and the individual paramedics rather than in the patient’s best interests (Tom L. Beauchamp, and James F. Childress Principles of Biomedical Ethics (7th ed, Oxford University Press, 2013)). It’s unlawful given the basic principle that touching a person without their consent is a battery.

The fundamental principle, plain and incontestable, is that every person’s body is inviolate. It has long been established that any touching of another person, however slight, may amount to a battery… “the least touching of another is anger is a battery.” The breadth of the principle reflects the fundamental nature of the interest so protected. As Blackstone wrote in his Commentaries, 17th ed. (1830), vol. 3, p. 120:

“the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man’s person being sacred, and no other having a right to meddle with it, in any the slightest manner.”

The effect is that everybody is protected not only against physical injury but against any form of physical molestation. (Collins v Wilcock [1984] 1 WLR 1172 at 1177 (Goff LJ)).

But the doctor didn’t touch the patient, the paramedics did.  The doctor’s orders won’t be a defence. Just because a doctor tells someone to break the law and commit an assault it does not make that action lawful.  If the paramedics were of the opinion that the patient was competent, understood the implications of his decision and affirmed, after the conversation with the doctor that he did not want to go to hospital that should have been respected.

Just because a patient refuses transport it does not mean that is the end of the paramedic’s duty of care.  It is not ‘take it or leave it’.   It was right of the paramedics to consider ‘that the patient shouldn’t be left at home alone without the physical capacity to care for himself, or a responsible carer’ and to therefore ‘ explore options to ensure the patient’s well-being, such as possibly arranging for a doctor, nurse or other carer to visit the patient in his home.’ Back in 2009, when writing on the decision in Neal v Ambulance Service of NSW [2007] NSWDC 123 (see Ambulance Service v Neal (January 29, 2009)) I said:

Neal’s case also serves as a reminder that health care is not an ‘all or nothing’ exercise, a patient has a right to refuse all treatment or some treatment but that does not absolve the health provider (doctor, nurse or ambulance officer) of all responsibility. It is not the case of ‘you take the treatment I’m offering or it’s nothing to do with me’. The obligation on a health professional is to act reasonably in the circumstances which can include circumstances where a patient refuses some or all treatment. Just because a patient refuses a blood transfusion it does not mean that health teams do not continue to treat and try to save their life; a patient may allow an ambulance officer to examine them and provide first aid but refuse transport, but the care that is provided must be reasonable and in appropriate circumstances.

In the circumstances described here the paramedics had, I suggest, a duty to ‘explore options to ensure the patient’s well-being, such as possibly arranging for a doctor, nurse or other carer to visit the patient in his home’ rather than say ‘if you don’t want our transport, that’s it we’re out of here’.

But there is, no doubt, a dilemma; that is ‘a situation in which a difficult choice has to be made between two or more alternatives, especially ones that are equally undesirable’ – fail to respect the patients wishes and act illegally v leave the patient in circumstances where there are clear and legitimate concerns for his well being.

For the paramedics no doubt, that dilemma existed with respect to patient care; and there was probably a personal dilemma too.  Had the paramedics refused to transport after being directed to by the service’s medical consultant they may well have faced issues with respect to failing to obey the directions of their employer that, no doubt, requires paramedics, as a general rule, to follow the advice of the medical consultant.  The law only requires a person to obey the ‘reasonable’ directions of an employer, and a direction to commit a crime is not a ‘reasonable’ direction, but one can foresee that this could be a matter of significant and drawn out debate in the Fair Work Commission or the like.  On the other hand, by transporting they may have assaulted the patient, but they did so under direction from a ‘superior’ or in accordance with the services requirements (and I do assume that if an ambulance service provides for a medical consultant that paramedics can contact for advice, the expectation is that they will then follow that advice). Everyone was employed by, or an agent of, the Ambulance Service so the Ambulance Service, if anyone, will be liable.  The Ambulance Service, in turn, will only be liable if someone bothers to sue and that is unlikely.

But if the patient is left and dies, there risk of legal action is probably higher. The family who find their father dead, who do not know what he said and learn that paramedics didn’t treat after a CV may sue or take maters up with a health care complaints authority.  Even if it’s found that the paramedics did the right thing, the process will be long and unpleasant.  Further, if the paramedics, rightly spend time trying to contact and arrange care they will be delayed.

So one can see that the pragmatic, albeit unlawful and unethical reaction, would be to transport the patient.

Impact of paramedic registration

It can be anticipated that the dilemma described here will become more acute and personal once paramedics are registered health professionals.  Then their duty to their patient will be stricter. They will no longer be mere servants of their employer ambulance service but can anticipate that they will be expected to advance their patient’s interests even if that means challenging the doctor’s pragmatic direction if they think it is wrong.  As employees they will still be protected from liability to pay damages by the concept of vicarious liability, but they may have to justify their professional decision to ignore a patient’s competent refusal before the yet to be established Paramedic Tribunal.