Today’s question revisits the difficult problem that faces paramedics, first responders, first aiders and others who may be called upon to provide emergency care and who are told that the patient has previously refused resuscitation. This issue has been talked about before – see the various results posts that a search ‘refuse resucitation’ brings up on this blog. It was also the subject of my first refereed journal paper – Michael Eburn, ‘Withholding, Withdrawing and Refusing Emergency Resuscitation‘ (1994) 2 Journal of Law and Medicine 131-146. Even so it’s worth returning to the subject. Today’s correspondent says:
Last week first aiders at a hotel attended a gentleman who had suffered a cardiac arrest in the hotel carpark. On arrival they commenced CPR and applied an AED. Full resuscitation efforts were made. While attending to the gentleman the wife was becoming increasing agitated saying that he had a Do Not Resuscitate order in place and was constantly asking them to stop all resuscitation efforts. The wife had no documentation available to show that her husband was DRN.
Should first aid/cpr have stopped once the wife verbally indicated that the patient had a DRN in place and if not, what is required in order for a first aider to withhold or stop CPR?
The law is not complex. It says (in summary):
- Medical care (emergency excepted) must be preceded by the patient’s consent (Rogers v Whitaker (1992) 175 CLR 479).
- A person can refuse medical care for any reason, or no reason. Their decision does not have to be judged as ‘reasonable’ by anyone else (Malette v Shulman (1990) 67 DLR (4th) 321).
- To validly refuse treatment a person must be competent, informed and the refusal applies in the circumstances that have arisen (In Re T  EWCA Civ 18).
- To treat someone who does not consent to the treatment is a battery (Collins v Wilcock  1 WLR 1172).
- Care can be provided in an emergency provided that it is care that a reasonable person would provide, acting in the patient’s best interests (In Re F  2 AC 1).
- Care cannot be provided that is contrary to that persons known wishes (In Re F  2 AC 1).
That simplicity however conceals the complexity that is knowing whether those circumstances exist. That is, the law is not complex, but its application is.
Talking generally, the law says:
If facts A, B and C are true – then this is the legal conclusion.
(That summary is true whether you’re talking about murder, negligence or a speeding ticket). Courts spend most of their time deciding if A, B and C are true, not what the law is or what the conclusion must be if those facts are true.
Let us put that discussion in context. If the ‘gentleman who had suffered a cardiac arrest in the hotel carpark’ had:
- previously decided that he did not want CPR, and
- in making that decision he was informed about what that would mean and its implications, and
- he meant that refusal to apply if he had a sudden and unexpected cardiac event (ie his ‘refusal’ was not just some general statement ‘if I become unwell and dependent, don’t proceed with heroic measures); and
- if the first aiders knew all that (or at least knew (1) and had no reason to question or doubt (2) and (3) – Malette v Shulman (1990) 67 DLR (4th) 321)
then the first aiders should withhold CPR.
But how do they know (1) or make any assessment of (2) and (3)? One might say they know he’d refused CPR as a person purporting to be his wife said so. But that may not be sufficient. They can’t assess the nature of the relationship between them and they certainly can’t take time to explore with her the circumstances in which the stated refusal were made or the circumstances in which it was meant to apply. Perhaps they had a discussion about his future and possible consequences but were they thinking of a sudden event in a car park? The statement by the wife is not ‘he has refused resuscitation’ it’s at best ‘I believe he has refused resuscitation’. Courts, in all the cases listed above, have had time to consider the issues and hear evidence about what happened and what people said and to hear counsel’s submissions on what the evidence shows and what conclusions the court should draw. A first aider does not have that luxury.
So how might a first aider or paramedic know any relevant facts. First might be a written document. At common law (as opposed to the various legislative provisions in some states and territories) there is no required ‘form’. Any evidence of the person’s wishes is indeed evidence that they have refused resuscitation. I have previously argued that I think a ‘Do Not Resuscitate’ tattoo (‘Medical tattoos offer important health information’ (March 3, 2012) but that position is not without controversy) or a medic-alert bracelet (Ignoring a medic-alert bracelet (July 19, 2015)) is pretty clear evidence. In Malette v Shulman the court said carrying a card that set out the patient’s refusal (in that case to blood transfusions) was sufficient. The court was concerned with a person who had
… 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, that she does not consent to blood transfusion…
In respecting those wishes, and withholding the treatment that had been refused:
The doctor cannot be held to have violated either his legal duty or professional responsibility towards the patient or the patient’s dependants when he honours the Jehovah’s Witness card and respects the patient’s right to control her own body in accordance with the dictates of her conscience. The onus is clearly on the patient. When members of the Jehovah’s Witness faith choose to carry cards intended to notify doctors and other providers of health care that they reject blood transfusions in an emergency, they must accept the consequences of their decision. Neither they nor their dependants can later be heard to say that the card did not reflect their true wishes. If harmful consequences ensue, the responsibility for those consequences is entirely theirs and not the doctor’s.
The first question to be considered then is there anything from the patient (not his wife) that communicates’ his wishes. The tattoo, the DNR bracelet, the card or a DNR ‘order’ signed by him (even if produced by her) and ideally (but not necessarily) counter-signed by the person’s treating doctor? In the story told by today’s correspondent we know the answer is ‘no’.
The next issue I would want to consider is does any purported refusal, particular where the only evidence of it is the wife’s statement, apply in these circumstances. One might imagine first aiders at a community event that is designed for the very elderly or the terminally ill. It might be easier to accept then that there is a DNR request that is meant to apply at that point. One does not have to be terminally ill to refuse CPR but it would seem, if the person is at the end stage of a terminal illness, that their direction is meant to apply at that time.
In today’s question, we’re told that the ‘gentleman who had suffered a cardiac arrest’ was ‘in the hotel carpark’. Clearly, he believed he was well enough to go to a hotel – what was he doing there? Staying there whilst seeking medical care? Or having a night on the booze whilst playing poker machines? In one sense it doesn’t matter, as noted a person can refuse treatment at any time and without reason. But if a first aider (or paramedic, or other health professional) is trying to understand the person’s wishes, given they have little time to make decisions, evidence of a medical condition that gives support to the idea that they may have refused CPR would be helpful. So, if the person was being wheeled out of the hotel with their oxygen bottle connected to their wheelchair, first aiders and others may feel more confident when told ‘he doesn’t want to be resuscitated’ than if the person is an apparently fit and healthy young person who has clearly been out partying.
A person’s spouse is the ‘person responsible’ for making medical decisions on their behalf if they are no longer able to make those decisions (I’m not sure which jurisdiction this question comes from, but see for example, Guardianship Act 1987 (NSW) s 33A). There are however many steps to go through before a ‘person responsible’ is asked to consent to treatment or the withdrawal of treatment (see s 40). A first aider can’t determine, on the scene of a cardiac arrest, whether the person who says they’re the patient’s wife is indeed the ‘person responsible’ (or whether one of the other people listed in s 33 fills that role). Consent under the Guardianship Act is, again, intended to be relied on for decisions where there is time, rather than emergency decisions (see s 37).
Finally, there’s the obvious position that the decision to commence treatment can be withdrawn later, but the decision to withhold CPR is terminal. If the first aiders start CPR then they will get assistance from the paramedics who in turn will deliver the person to a hospital. Once at hospital (assuming that the CPR is effective and they aren’t pronounced dead in casualty) the medical staff, supported by hospital ethicists, can review all the person’s circumstances, follow up with the GP or treating specialist (if there is one), allow the wife time to find the DNR order etc and then, if appropriate, withdraw treatment (but as noted by a correspondent on the FaceBook version of this blog, it won’t be appropriate to withdraw treatment if the first aid is successful and the person survives even if they suffer from the very deficits they wanted to avoid (eg long term brain damage). On the other hand, if the first aider chooses not to apply CPR then the person dies there.
So what’s to be done?
Really, it’s a risk assessment. The chances of this becoming a legal issue is infinitesimally small. If the person really has decided to refuse treatment, they may be aggrieved their wishes have been ignored (like Mrs Malette in Malette v Shulman) but they can’t do much about it unless they survive (which is not likely – CPR success: TV v Reality (September 3, 2015)). Remember in Malette’s case she had signed a card so had taken steps to convey her wishes ‘in the only way possible’. That was not suggested in the situation under discussion today.
In the situation described today there are two options. The first is to ignore the wife’s claims that there is a DNR order and ‘commenc[e] CPR and appl[y] an AED’. I can’t see that there could be any legal consequence. A court would recognise that first aiders have limited ability or time to assess any such claim. Unlike other cases such as a tattoo, bracelet or card, the person has not gone to any steps to communicate so the claim that they do not want resuscitation is not supported by any evidence. The best option has to be to complete CPR and let others, with more time and more ability to access information, determine what the patient has decided about their care (if anything). In Malette’s case it was said the patient’s wishes should be respected as she had done everything she could to communicate, and if the card (in that case) no longer reflected her wishes then she was still responsible for the consequences of doctor’s complying with her instructions. The flip side has to be that if a person has taken no steps to be able to communicate their wishes – by carrying the documentation or doing something, then they can’t hold others responsible for NOT acting on the (un)known wishes. I can’t see that to perform CPR in those circumstances is to do anything other than act reasonably and in the patient’s best interests (and I note that is not even beginning to look at any statutory exceptions for actions done in good faith by volunteers, good Samaritans or paramedics).
The other option is to accept the wife’s claims. Perhaps it is clear the patient is terminally or chronically ill, and the wife can provide details of where and when the order was made, the person’s treating doctor and other information that gives credence to her claim. In those circumstances, it may be reasonable to accept what she says – see Withholding Resuscitation in Victoria (April 8, 2013). I can’t see that raising any legal consequences either. To paraphrase Malette v Shulman:
The first aider cannot be held to have violated either his legal duty or professional responsibility towards the patient or the patient’s dependants when he honours the wife’s clear statement and respects the patient’s right to control his own body in accordance with the dictates of her conscience. The onus is clearly on the wife as a ‘person responsible’ for their partners care. When members of a person’s immediate and intimate family choose to insist that a person has refused the proposed they must accept the consequences of their decision. Neither they nor their dependants can later be heard to say that what they claimed where the person’s true wishes did not in fact reflect their true wishes. If harmful consequences ensue, the responsibility for those consequences is entirely theirs and not the first aider’s.
The second option (withhold treatment) may conflict with the first aiders personal, professional judgment and may lead to conflict with other family members. It may lead to difficult questions within the organisation for which they work, with police and although highly unlikely, the coroner.
In short the risk of any legal consequences with either option is probably very, very low but probably even lower with continuing first aid than withholding it (in the absence of a clear indication of the patient’s wishes).
The questions asked were
- Should first aid/cpr have stopped once the wife verbally indicated that the patient had a DRN in place? and
- if not, what is required in order for a first aider to withhold or stop CPR?
With no knowledge of the patient’s medical history and no independent, corroborating evidence (such as a card, tattoo, bracelet, signed DNR order etc) I would suggest that the best approach was to continue CPR. If that was contrary to the patient’s wishes, it is a decision that could be reversed later. My view would be that first aid/CPR should NOT have been stopped.
What I would want to see before withholding or stopping CPR is some evidence that the person themselves has tried to communicate their wishes (the tattoo, bracelet, card or ideally a formal DNR document signed by their medical practitioner and complying with the prescribed form in those states and territories where there is such a form (eg Victoria, but not NSW)). I would also want to be reassured that they had some relevant medical history (eg the terminal stage of a terminal illness) to believe that they intended to refuse CPR in the circumstances that have arisen, remembering however that this is not essential. A person can refuse any treatment they want, at any time, for any reason.
Wow. I was really interested to see what your conclusion was going to be. In the first aid environment, esp when the person applying first aid may have limited experience, your conclusion is excellent!
This may be a silly question sorry. In the context of the incident given, as the patient is obviously unresponsive – does the distressed wife now hold medical power of attorney/ability to determine treatment as the next of kin?
Could she use this to essentially revoke consent to CPR?
Paul, not a silly question but that is what I glossed over with the reference to a ‘person responsible’. Legislation does provide for someone to be an alternative consent giver even without a formal appointment as a power of attorney/enduring guardian. But if we take the NSW Act as an example there is list in order of priority to determine who is the person responsible and the first aider couldn’t work out who actually takes priority. Equally as the ‘person responsible’ there are limits on what they can do. And their consent is not required in an emergency (s 37). Even if they held an appointment as an enduring guardian there are limits to what they can do and when they can do it, all beyond the scope of a first aider to deal with. So the wife may be the ‘person responsible’ and that will be relevant if the patient gets to hospital and consideration then has to be given to withdrawing futile treatment; but it won’t be relevant at the time of the arrest in the car park.
Thanks again for your response Michael, a great read. Andy
We seem to be having a very similar issue within the NEPT industry where by DNR documentation is withheld in the transport notes and nurses stating hospital policy is to not release DNR docs to transport crews. Puts crews in a conundrum and in my view, no documentation then its just hearsay. Then there is the issue were a pt in the back states they dont want to die on the road even though a DNR is in place. Its extreamly complex when your dealing with palative care as a day to day
Not releasing DNR documentation to transport crews, who may have to face the question of resuscitation or not, sounds outrageous. It’s not a breach of privacy as the documentation is there to record the treatment options and it’s being given to part of the treatment team. I appreciate that all I have is this comment and not the full context or policy, but as described it sounds like someone trying to cover their arse (badly) and not thinking about why they are there (to treat the patient in accordance with the patient’s wishes). I would think that if a patient has made a conscious and informed decision to refuse resuscitation (as opposed to an ‘order’ to withhold treatment based on a medical assessment that it is futile) and that is ignored because the NEPT people didn’t know about it, and they suffer the very indignities or deficits that they want to avoid, it would be a very simple and almost indefensible case of negligence against the hospital.
This apparently happend at canberra hospital this week and the nurse escort took the liberty of taking a photo of the DNR while the nurse wasent looking. We have been today discussing this very issue and the posistion ACT health is putting us in as our jobs are to regional facilities that are 2-5 hours away. Our optiins are to refuse transpot till we are furnished with documentation or proceed with resusitation as we have no actual DNR.
Michael, I’ve got a question about this issue based on information provided during a first aid training session with one of the larger first aid training organisations.
Basically, we were advised that if a patient is conscious and refuses assistance, we were required to accept their wishes, but once they became unconscious, we could commence first aid / CPR as required in order to preserve life.
In your opinion, would commencing first aid / CPR on an unconscious patient despite their previous verbal rejection of assistance be battery?
That advice is usually phrased on the basis that there is some how implied consent. That’s wrong. The doctrine is necessity (see https://emergencylaw.wordpress.com/2017/01/31/4203/). The issue is are they really refusing consent to CPR? Did they understand the situation? For example you ask a person ‘are you ok?’ and they say, ‘yes, it’s nothing, I’ll be right, I’ll go see my doctor’ – they are not accepting your assistance. They then collapse in cardiac arrest. In those circumstances they probably did not know how sick they were and if asked would you prefer treatment or to die they may well say (if they could) ‘now I want your help’ – so go for it.
But if they know the situation and are refusing treatment, for example the person in a terminal stage of a terminal illness who has made and communicated a clear desire not to be resuscitated, then yes, it would be a battery but that would be extremely unlikely in any first aid situation.
This reply is particularly helpful to me as a FA trainer. I’m glad to say my interpretation of the situation in the main article ( first aider doesn’t really know the relationship etc) was pretty good.
The phrase in our training package ( I thought from ARC guidelines) is “if the casualty is or becomes unconscious, consent is deemed to be given”
I shall use your example to clarify my training, thank you.
And thank you Thalesian for your question!
If your training manual, or the ARC guidelines say “if the casualty is or becomes unconscious, consent is deemed to be given” then they are wrong.
How would this affect us in Australia (WA)
Hospital panic over unconscious man’s ‘do not resuscitate’ tattoo http://www.nzherald.co.nz The man was taken to hospital with ‘do not resuscitate’ tattooed on his chest.
Respect the patient’s tattoo. The article says ‘A man’s ‘do not resuscitate’ tattoo forced Miami emergency doctors to confront the ethical conflict between a patient’s wishes and a doctor’s duty’ but misstates the doctor’s duty. A doctor’s duty is to provide medical care that accords with the patients wishes. This wasn’t or shouldn’t have been an ethical issue about whether to respect the patient’s wishes, it was at best a dilemma of are we satisfied those are the patient’s wishes. Arguments that the patient may have changed his mind are in my view irrelevant. A person that changed their mind could get a line put through the tattoo or another tattoo what says ‘changed my mind’. By getting that tattoo the person has ‘… chosen in the only way possible to notify doctors and other providers of health care, should [he] be unconscious or otherwise unable to convey her wishes, that she does not consent to…’ resuscitation. Equally:
See also ‘Medical tattoos offer important health information’ (March 3, 2012).