Today’s question relates to advance care directives and suicide.   My correspondent is

… a paramedic in Victoria.

Victoria has had a recent change in law regarding end of life wishes. People can now implement Advanced Care Directives, where one may choose to refuse a medical treatment such as CPR. My understanding is that the Advance Care Directive does not need to be specifically related to a current medical condition.

My question: if a person has an Advanced Care Directive. For example, stating that they refuse CPR, and then self-harms, is this directive still legally applicable?

The change referred to is the Medical Treatment Planning and Decisions Act 2016 (Vic) which came into force on 12 March 2018.   For the purposes of the Act (s 4):

A person has decision-making capacity to make a decision to which this Act applies if the person is able to do the following—

(a) understand the information relevant to the decision and the effect of the decision;

(b) retain that information to the extent necessary to make the decision;

(c) use or weigh that information as part of the process of making the decision;

(d) communicate the decision and the person’s views and needs as to the decision in some way, including by speech, gestures or other means.

(Note that those tests largely reflect the common law discussed in Gillick v West Norfolk & Wisbeck Area Health Authority [1986] AC 112 which in turn is discussed in many posts on this blog – see https://emergencylaw.wordpress.com/?s=gillick),

Under the Act a person can give an ‘instructional directive’ that is an express statement of treatment that is or is not accepted.   Such a directive ‘takes effect as if the person who gave it has consented to, or refused the commencement or continuation of, medical treatment, as the case may be’.  So an ‘instructional directive’ by a person with capacity that the person refuses CPR would be an effective refusal of that treatment.   A person can also give a ‘values directive’ indicating the sort of factors and outcomes they would want a decision maker to consider when determining whether to provide particular treatment or not (s 6).

The Act does not limit or remove a person’s right to refuse treatment in accordance with the common law (s 10).  The common law has been widely discussed in other posts in this blog – and see for example The doctrine of necessity – Explained (January 31, 2017).

An advance care directive must not

…  include any of the following statements—

(a) a statement that is unlawful or would require an unlawful act to be performed;

(b) statement that would, if given effect, cause a health practitioner to contravene a professional standard or code of conduct (however described) applying to the profession of that health practitioner;

If it does contain any such statement that statement can be severed from the directive and need not be complied with.  That is however not very helpful in this context.  One might think that a professional standard of a doctor or paramedic is to save a person’s life if they can but professional standards do require that treatment is given that is consistent with the patient’s wishes and values.  It is not necessarily ethical to save someone who wants to die.

Section 51 says:

A health practitioner may refuse under this Part to comply with an instructional directive if the health practitioner believes on reasonable grounds that—

(a) circumstances have changed since the person gave the advance care directive so that the practical effect of the instructional directive would no longer be consistent with the person’s preferences and values; and

(b) the delay that would be caused by an application to VCAT under section 22 would result in a significant deterioration of the person’s condition.

(The definition of health practitioner includes ‘a registered health practitioner’ so it will cover paramedics when they are registered under the national health practitioner registration scheme.  The definition also includes ‘an operational staff member within the meaning of the Ambulance Services Act 1986’ so that covers Ambulance Victoria paramedics before national registration).

Finally, s 53 says:

(1) Subject to subsection (2), a health practitioner may administer medical treatment (other than electroconvulsive treatment) or a medical research procedure to a person without consent under this Part or without consent or authorisation under Part 5 if the practitioner believes on reasonable grounds that the medical treatment or medical research procedure is necessary, as a matter of urgency to—

(a) save the person’s life; or

(b) prevent serious damage to the person’s health; or

(c) prevent the person from suffering or continuing to suffer significant pain or distress.

(2) A health practitioner is not permitted to administer medical treatment or a medical research procedure to a person under subsection (1) if the practitioner is aware that the person has refused the particular medical treatment or procedure, whether by way of an instructional directive or a legally valid and informed refusal of treatment by or under another form of informed consent.

To guide practitioners, Victoria’s Health and Human Services have published: Advance care directives and attempted suicides: Medical Treatment Planning and Decisions Act 2016 (Victoria State Government, December 2017).  This is a vague document that again is somewhat unhelpful because, like this blog, it ‘is general guidance intended to help practitioners understand their obligations under the Medical Treatment Planning and Decisions Act 2016. It does not constitute legal advice nor does not take into account individual circumstances.)

Discussion

The Act itself is silent on the issue of self-harm so the fact that the patient has engaged in self-harm does not automatically mean the advance care directive can be ignored.  The question that need to be considered is where they competent at the time the directive was made? (The answer to which may be ‘no’ if they were already suicidal); Have circumstances changed since the directive was made so that one can question whether it still reflects their wishes – did they really want to refuse lifesaving treatment if, when depressed, they tried to kill themselves if when making the directive depression was not something they’d ever experienced?

The guide says ‘…if a person wants to refuse all medical treatment in their advance care directive, a medical practitioner should ask why before witnessing the document. If the person intends to self-harm or is expressing suicidal thoughts, the medical practitioner should refer the person for a psychiatric assessment.’  That is not much help to paramedics who are not going to be witnessing these documents but who have to act on them.

It may be that a person wants to refuse treatment as they are suffering from a debilitating or terminal condition. Their decision to refuse all life sustaining treatment may well be informed and competent.  Further at the time of making it they may not intend self-harm.  If their condition deteriorates over time and they decide, for example, to overdose on medication with the intention of taking their own life, that could be very consistent with both their instructional directive and their values directive.

If a person has a values directive, eg that they do not want to be maintained in persistent vegetative state, and their self-harm has indeed left them in that state, then it would seem consistent and, in my view, appropriate, to honour that directive even if the cause of that injury was their own action.

The critical issue lies in s 52. That says that a health practitioner who, in good faith, acts in  accordance with a directive, is not liable to any civil, criminal or professional penalty.  As the Guide published by Health and Human Services says:

In the unlikely event that a person who has attempted suicide and in those circumstances has a readily available advance care directive refusing all treatment, health practitioners and paramedics should be mindful of the terms of the purported advance care directive and consider their professional obligations and any applicable code of conduct.

And to the extent that they can, the circumstances in which the directive was made and the circumstances of the self-harm involved.

Health and Human Services says:

The Crimes Act 1958 provides that ‘every person is justified in using such force as may reasonably be necessary to prevent the commission of suicide or of any act which he believes on reasonable grounds would, if committed, amount to suicide’. The existence of this section in Victorian law may significantly mitigate against the existence of unprofessional conduct or professional misconduct in circumstances where, despite an advance care directive, medical treatment is administered to save the life of a person who the practitioner is aware has attempted suicide.

They are not prepared to say that this Act would provide a defence and indeed it simply begs the question of what is ‘suicide’?  Note that in Stuart v Kirkland-Veenstra [2009] HCA 15 it was said that the fact that a person was contemplating or attempted suicide was not necessarily proof that they are (or were) mentally ill.  There it was said (at [94]):

Bracton, writing in the 13th century, recognised the complexity of suicide. Bracton contrasted the case of “a man [who] slays himself in weariness of life or because he is unwilling to endure further bodily pain” from one who “lays violent hands upon himself without justification, through anger and ill-will, as where wishing to injure another but unable to accomplish his intention he kills himself”.

Today we may not draw the same analogies, but many people would see a difference between a person, in the final stages of their life seeking to hasten their death rather than face further suffering and ignominy and a young, otherwise fit and healthy person, seeking to end their life whilst suffering from clinical depression or perhaps as Bracton suggests, to ‘get back’ at someone who has rejected them.

Conclusion

There’s no easy answer as each answer will depend on the circumstances.  A health practitioner, including a paramedic who thinks about it and in good faith honours the directive (s 52) or in good faith ignores it (s 51) is protected.

Such conclusions are somewhat unhelpful. Looking simply at the terms of the Act, on balance I would say that the fact that the person’s injuries are caused by self-harm, save in circumstances where they may have already been contemplating self-harm at the time the directive was written, does not invalidate the advance directive.