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.

  1. 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?
  2. 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.

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