Today’s question come from a NSW paramedic who has
…some questions around patient consent. If my patient, on any other day, displays capacity & competency however today he or she has an infection/affected by drugs/stroke that is causing acute confusion. Today they cannot display capacity or competency but still refuse treatment, transport and our assistance.
- Can we take this person to hospital against their will if we are the only person responsible to make that decision for them? Would we be protected under the Guardianship Act 1987? Do we need to contact NCAT to gain permission?
- If a patient has the same symptoms, still refuses any treatment or transport and the person responsible – ie wife also does not consent to treatment, can we override their decision if it’s in the patient’s best interests?
To refuse treatment a person must be informed; competent and the refusal must extend to the situation that has arisen (In Re T [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). If a person is not competent then treatment that is reasonably necessary and in their best interests may be given (In Re F [1990] 2 AC 1; see also The doctrine of necessity – Explained (January 31, 2017)).
Question 1
The Guardianship Act 1987 (NSW) provides for decision making for those who are not able to make their own decisions including decisions with respect to medical care. Under that Act medical treatment means ‘medical treatment (including any medical or surgical procedure, operation or examination and any prophylactic, palliative or rehabilitative care) normally carried out by or under the supervision of a medical practitioner’. On one view care given my paramedics is not medical treatment as it is not given ‘by or under the supervision of a medical practitioner’ and that would make sense. The Act is much more directed to long term care where there is opportunity to engage with guardians, to discuss risks and obtain informed consent or refusal to medical treatment.
The Act does say (s 37):
Medical or dental treatment may be carried out on a patient to whom this Part applies without consent given in accordance with this Part if the medical practitioner or dentist carrying out or supervising the treatment considers the treatment is necessary, as a matter of urgency:
(a) to save the patient’s life, or
(b) to prevent serious damage to the patient’s health …
The Act does allow treatment in an emergency but it must be noted that requires a medical practitioner to have the necessary belief. A paramedic (even when paramedics are registered) is not a medical practitioner (save for those rare few who are and will be dual registered).
Answer to Question 1
My answer to question 1 is therefore that yes the paramedic can take this person to hospital against their will if we are the only person responsible to make that decision for them. The justification for that is the common law doctrine of necessity not the Guardianship Act 1987 (NSW). They would not need to contact NCAT to gain permission.
Question 2
The concept of the ‘person responsible’ is found in the Guardianship Act 1987 (NSW). Section 33(4) says:
There is a hierarchy of persons from whom the “person responsible” for a person other than a child or a person in the care of the Secretary under section 13 is to be ascertained. That hierarchy is, in descending order:
(a) the person’s guardian, if any, but only if the order or instrument appointing the guardian provides for the guardian to exercise the function of giving consent to the carrying out of medical or dental treatment on the person,
(b) the spouse of the person, if any, if:
(i) the relationship between the person and the spouse is close and continuing, and
(ii) the spouse is not a person under guardianship,
(c) a person who has the care of the person,
(d) a close friend or relative of the person.
We can infer that the ‘wife’ is the person responsible (s 33(4)(b)). Section 36 says:
Consent to the carrying out of medical or dental treatment on a patient to whom this Part applies may be given:
(a) in the case of minor or major treatment–by the person responsible for the patient…
One might infer that if a person can consent, they can also withhold or refuse consent. However, in order to obtain consent from a person responsible, a number of steps must be followed (s 40). It would not be possible, nor is it intended, that a paramedic could or would go through those steps.
As noted above, it is arguable that care provided by paramedics is not ‘medical … treatment on a patient to whom this Part [of the Guardianship Act] applies’.
Answer to Question 2
The Guardianship Act 1987 (NSW) is not intended to limit the ability to apply emergency medical care (s 37). It is relevant to providing other medical care to people who cannot consent. Medical care is care provided by medical practitioners. A paramedic does not provide medical care, he or she provides paramedical care and that is outside the scope of the Act.
The doctrine of necessity says that treatment may be given that is reasonably necessary and in the patient’s best interests but not if that treatment is contrary to the known wishes of the patient. If a patient’s spouse says that a person does not want the treatment that is being proposed that may be something that requires paramedics to stop and think about whether the treatment should be given.
For related posts, see:
- The doctrine of necessity – Explained (January 31, 2017);
- Third party refusing treatment (March 23, 2016); and
- Who can give consent, who can refuse consent and when is consent not required for emergency medical care?
Australian Emergency Law 
Fascinating article, thanks Michael! I had a question in relation to alcohol and competency. I know that’s a bit more specific than this article addresses, but I’m curious as to the role autonomy might play in this argument when it comes to responsibility for actions. I know autonomy and necessity are different concepts, but I think of the matter Cole v South Tweed Heads Rugby League Football Club (2004) 217 CLR 469.
In that matter, Ms Cole consumed alcohol over a long period of time, was eventually asked to leave the premises by the proprietor and subsequently stumbled onto the road and struck by a vehicle. Ms Cole sued the football club (unsuccessfully) under negligence suggesting that it did not discharge its duty of care. The High Court (Kirby J dissenting) rejected Ms Cole’s claim and argued that she autonomously consumed the volume of alcohol that she did to impair her ability to reason and that was not a matter for the club.
I’m curious how this might relate to this issue, specifically if a patient was drunk? Would necessity override autonomy in this sense? If autonomy holds, would a paramedic then taking someone against their will also be liable for action?
I personally didn’t agree with the HCA’s decision in Cole and supported Kirby’s position that there must be a line in the sand when autonomy is overridden by culpability. In the case of this argument, autonomy being overridden by necessity.
Sorry if I’m off the mark here – but keen to hear your thoughts.
I’m not sure I see the link you are trying to make. The doctrine of necessity, at least as described by Lord Goff in 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 circumstance take, acting in the best interests of the assisted person.
Necessity does not, however, justify intervention when the intervention ‘is contrary to the known wishes of the assisted person, to the extent that he is capable of rationally forming such a wish’.
If a person refuses treatment and is competent to do so, that is ‘they are able to understand the nature of the suggested treatment, weigh up the consequences of and communicate his or her decision’ then that trumps ‘necessity’. The person may refuse treatment because they are intoxicated and therefore makes a decision that they may not make whilst sober but that does not deny their right to make that decision when intoxicated. In Neal v Ambulance Service of New South Wales [2008] NSWCA 346 (10 December 2008) no-one doubted the capacity of Mr Neal to refuse treatment and that the paramedics could not lawfully transport him to hospital.
Intoxication however ranges in extent and someone may be so intoxicated that they are no longer competent to make decisions in which case necessity can justify treatment that is reasonably necessary and in the patient’s best interests.
The problem for paramedics and doctor’s is making that call. In In Re T [1992] EWCA Civ 18, Lord Justice Staughton said (at [60]-[61]):
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 is the intolerable dilemma described by Lord Bridge of Harwich in In re F (at page 52).
Some will say that, when there is doubt whether an apparent refusal of consent is valid in circumstances of urgent necessity, the decision of a doctor acting in good faith ought to be conclusive… However, I cannot find authority that the decision of a doctor as to the existence or refusal of consent is sufficient protection, if the law subsequently decides otherwise. So the medical profession, in the future as in the past, must bear the responsibility unless it is possible to obtain a decision from the courts.
Putting aside statutory defences that some ambulance services can rely on, the result is the same. If the patient appears to refuse treatment but is not competent there may be a breach of duty not to treat the person based on the doctrine of necessity. On the other hand, if the ‘law subsequently’ decides there was a competent refusal, treatment contrary to the patient’s wishes would be a battery.
The answer to your question is, therefore, that necessity does not override autonomous choices, the question is, as in In Re T, whether there really is an autonomous decision. I cannot really see the link with Cole v South Tweed Heads Rugby League Football Club (2004) 217 CLR 469. In that case the defendant club was supplying the intoxicating liquor to the plaintiff. The circumstances that I have been discussing do not involve the paramedics being the source of injury.
Further, and without revisiting Cole in any detail, it seems from your description to be consistent with the finding in Stuart v Kirkland-Veenstra [2009] HCA 15. In that case the High Court held that Victoria Police did not have a duty to protect Mr Veenstra from himself. At [86]-[87] Gummow, Hayne and Heydon JJ said:
The duty thus posited is novel… First, although framed as a duty to take reasonable steps to prevent foreseeable harm, the particular kind of harm to be prevented is harm at the hand of the person to whom the duty is owed…
The duty which the plaintiff alleged the police officers owed her late husband was a duty to control his actions, not in this case to prevent harm to a stranger, but to prevent him harming himself. On its face, the proposed duty would mark a significant departure from an underlying value of the common law which gives primacy to personal autonomy, for its performance would have the officers control conduct of Mr Veenstra deliberately directed at himself.
At [90] they said ‘When a duty to control the actions of another is found it will usually be because the person to be controlled is not autonomous.’
In Cole it was found the club was not liable in part because of the plaintiff’s autonomous choice to consume alcohol.
In Neal v Ambulance Service of New South Wales there was no suggestion of some common law duty to override Mr Neal’s autonomous choice to refuse treatment. In that case the unsuccessful claim was that the paramedics should have stressed to police, who were taking Mr Neal into custody, that they should take him to hospital. The case failed as the court took the view that even if Mr Neal had been taken to hospital he still would have refused treatment and suffered the same long-term injuries. The Court did not decide the extent of the paramedic’s duty of care as it would not have made any difference to the actual or legal outcome. Even though the court did not decide the matter, there was no suggestion that necessity could override a choice, even an intoxicated choice, except when the person is ‘not autonomous’.
Conclusion
My thoughts are that necessity does not override autonomy and a patient who is competent, even though intoxicated, can refuse treatment. If they do, then an ambulance service taking someone against their will would (subject to statutory provisions in some ambulance service legislation) be liable for battery.
Excellent, thank you! The longer I study law the more I am reminded of the saying “the more I learn, the less I know”. This has clarified things for me.