Today’s correspondent says:

Resuscitation is typically commenced where a person has experienced a sudden and unexpected cardiac arrest. However, where a death is expected due to a diagnosed life-limiting illness, resuscitation confers no benefit. Inappropriate resuscitation is a growing concern, with Cairns (2018) believing that in situations where death is expected, “CPR shatters the peace of an expected death, destroying what might have been a time of intimacy and tranquillity.”

Ambulance services typically publish criteria for withholding or discontinuing resuscitation. The former usually involves injuries that are not compatible with life, or signs or decomposition. The Queensland Ambulance Service also includes information regarding “lawful directions to withhold or withdraw cardio-pulmonary resuscitation” in the guideline for resuscitation. This includes situations where the paramedic has sighted a valid Advance Health Directive and is satisfied that:

• The patient has impaired decision making capacity; and
• There is no reasonable prospect that the patient will regain capacity for health matters; and
• The patient is suffering from one of the following conditions:
  • a terminal illness or condition that is incurable or irreversible and, in the opinion of a doctor treating the patient, and one other doctor, the patient may reasonably be expected to die within one year;
  • a persistent vegetative state involving severe and irreversible brain damage;
  • permanently unconscious and has brain damage so severe that there is no reasonable prospect of the patient regaining consciousness; or
  • an illness or injury of such severity that there is no reasonable prospect of recovery.

https://www.ambulance.qld.gov.au/docs/clinical/cpg/CPG_Resuscitation_General%20guidelines.pdf

Given the need to make rapid decisions about whether resuscitation should be commenced, and the complexity of interpreting the Advance Health Directive, the default position is often to start. This may be due to concerns about liability for not commencing CPR, rather than judgements about the odds of successful resuscitation or a need to respect the patient’s wishes. This is of particular concern where the resuscitation appears to be futile, for example the emaciated elderly patient receiving palliative care at home, who is receiving intravascular medication via a syringe pump to manage symptoms associated with dying, but is seen by a paramedic following a 000 call made by a relative who is distressed by signs of dying.

The QAS guideline does state that decisions to withhold resuscitation must be based on good medical practice, and cites the Powers of Attorney Act 1998 and the Guardianship and Administration Act 2000 to define good medical practice as that which applies to the medical profession in Australia. However, this refers to medical practitioners, not paramedics. As such it appears that paramedics are unable to make decisions about the futility of resuscitation in a situation such as this if other criteria for withholding resuscitation have not been met. Your assessment of this would be appreciated.

Reference

Cairns, W. (2018). Avoiding futile CPR: a duty of care at the end of life. Retrieved from

https://insightplus.mja.com.au/2018/3/avoiding-futile-cpr-a-duty-of-care-at-the-end-of-life/

It should also be noted that the power to make an advance care directive under the Powers Of Attorney Act 1998 (Qld) does not detract from a person’s common law right to refuse treatment at any time for any reason, or no reason at all (see s 39).

Futile treatment

There is no duty to provide futile treatment.  Further, where the patient cannot consent to treatment, treatment may be given that is in the patient’s best interests.  Delivering futile treatment may not be in the patient’s best interests so it may be unlawful to continue with futile treatment (Airedale NHS Trust v Bland [1993] AC 789).  Lord Goff said (p. 869):

But for my part I cannot see that medical treatment is appropriate or requisite simply to prolong a patient’s life when such treatment has no therapeutic purpose of any kind, as where it is futile because the patient is unconscious and there is no prospect of any improvement in his condition.  It is reasonable also that account should be taken of the invasiveness of the treatment and of the indignity to which, as the present case shows, a person has to be subjected if his life is prolonged by artificial means, which must cause considerable distress to his family – a distress which reflects not only their own feelings but their perception of the situation of their relative who is being kept alive.   But in the end, in a case such as the present, it is the futility of the treatment which justifies its termination.  I do not consider that, in circumstances such as these, a doctor is required to initiate or continue life-prolonging treatment or care in the best interests of his patient.

In my Master of Law thesis (Eburn, M., Euthanasia and medical end-of-life decisions: the need for law reform in Australia, Unpublished Master of Laws thesis, University of Newcastle, 1998) I said (emphasis added):

In summary, based on the decisions of the House of Lords and a single judge in the New Zealand High Court, it appears that a decision to withdraw life sustaining treatment will not be criminal as where the treatment is considered by a responsible body of medical opinion to be futile.   In the common law jurisdictions it will not be criminal as treatment is only authorised by the doctrine of necessity when it is in the patient’s best interests and, if the treatment is futile it is, by definition, not advancing the patient’s best interests and may therefore be discontinued.  There is a lawful excuse for withholding such treatment even though to do so causes the death of the person concerned.

Further, a doctor is under no legal duty to provide treatment that is futile and as a person is only liable for murder or manslaughter by omission when there is a legal duty to act, withdrawing or withholding treatment that one is under no duty to provide means that there is no criminal responsibility should the person subsequently die.

In the code jurisdictions, if the broad principle enunciated in the decision of Thomas J applies, the act will not be ‘unlawful’ where it is in accord with ‘good medical practice’.   As one is only liable for an ‘unlawful killing’ the finding that the act is not unlawful, means that the practitioners are not guilty of either murder or manslaughter.

If there is a lawful justification and excuse for one’s actions, then it does not matter what the intention is.   To refer back to s.18 of the Crimes Act 1900 (NSW) a person is guilty of murder if they kill with intent to kill or reckless indifference to human life.   They are not guilty if they have a lawful justification or excuse.   If they did not intend the death of the deceased, or were not reckless (as defined in Crabbe) then there is no murder.  They would only need to rely on the defence of having a lawful justification and excuse if, without it, they would otherwise be guilty of murder, that is if the prosecution could prove that the withdrawal of treatment caused the death of the deceased and was done with intent to kill or with the realisation that death would probably follow.   It is clear that in some cases, such as Anthony Bland’s that the decision to withdraw treatment does, as a matter of fact, cause the death in question.  Lord Mustill said “… it is in my judgement perfectly obvious that the conduct will be, as it is intended to be, the cause of death …’.    It is also clear that in some cases, medical practitioners will be aware that to withhold the treatment will probably (and sometimes inevitably) lead to death (for example where the treatment in question is nutrition and hydration, or ventilation).   Notwithstanding that the practitioners realise that death is probable or intend the death to occur, they are not guilty of murder or manslaughter if they withdraw futile treatment, as they have a lawful justification or excuse for their actions.

That was about medical practitioners as these cases are only likely to arise in circumstances of medical practice but there is nothing to suggest the same principles don’t also apply to paramedics particularly now that paramedics are registered health professionals.  No-one is required to provide treatment that is futile.

The real issue is how you decide what is futile.  Where a patient, like Anthony Bland, is in a persistent vegetative state in hospital, there can be considerable time taken to consider his values, the values of his family and to take time to assess results and gain second opinions. Paramedics on the street don’t have that time and cannot make that assessment so in most cases will administer life sustaining treatment, such as high intervention CPR, in order to get the person to hospital where more detailed assessments can be made.

Palliative care

Palliative care is ‘person and family-centred care provided for a person with an active, progressive, advanced disease, who has little or no prospect of cure and who is expected to die, and for whom the primary goal is to optimise the quality of life’ (Palliative Care Australia, What is Palliative Care (undated)).   If a person is receiving palliative care then invasive treatment such as CPR and paramedic intervention would be contrary to the patient’s best wishes and the determination that has already been made that treatment to extend life is not warranted.

The QAS Guideline

The QAS Resuscitation-General guidelines provides a criteria for the rapid discontinuation of CPR.  It says (p. 210):

Cardio-pulmonary resuscitation may be discontinued or withdrawn before the expiration of 20 continuous minutes if the following is satisfied:

• The patient was observed to be unresponsive and pulseless for at least ten minutes prior to the arrival of the paramedic;
• No cardio-pulmonary resuscitation was provided during this period;
• The patient is exhibiting signs of life extinct …; and
• The patient’s cardiac rhythm is asystole.

Although the word ‘futile’ is not used the inference is that in those circumstances the treatment may be withdrawn because it is futile, it won’t achieve anything.

Under the heading ‘Good Medical Practice’ the guideline says (p. 211):

Decisions to withhold or withdraw cardiopulmonary resuscitation other life-sustaining treatments from patients that lack decision making capacity, must be consistent with standards of good medical practice for the patient, have regard for the clinical circumstances and the location of the patient at the time.

The Powers of Attorney Act 1998 and the Guardianship and Administration Act 2000 define good medical practice as that which applies to the medical profession in Australia, having regard to the recognised medical standards, practices and procedures of the profession and the recognised ethical standards of the medical profession.

That does not say that paramedics cannot make decisions, only that the decision making should be consistent with the decision making process that a doctor might.  And it is consistent with good medical practice not to administer treatment that is futile.  As noted above paramedics are not going to be in a position to determine whether treatment is futile in most cases, but where they can it’s lawful not to continue.

I would think if a patient is receiving palliative care then attempts at active resuscitation are not only futile they are also contrary to the decision making process that has already been followed by the patient, their family and their treating health professionals when the decision was made to move to palliative care.  It cannot be in the patient’s best interests and only treatment that is in the patient’s best interests can be justified.

Just because a person insists that treatment is given it is not consistent with good medical practice to administer that treatment.    A person with a viral infection may insist that their doctor prescribe antibiotics but the doctor is under no duty to prescribe treatment that in his or her opinion is futile, no matter how much the patient wants it.

Equally if a person has rung triple zero because they are ‘distressed by signs of dying’ then they are ringing for their interests not the dying patient.  Their concern, even insistence, cannot justify treatment of the dying patient where that treatment is futile.  Rather the person who rang triple zero is the patient and it is their distress that needs to be treated.  Not by subjecting a third party (the dying patient) to invasive resuscitation and transport to hospital, but perhaps by contacting the palliative care team to see if they are able to come and assist the relative and reassure the person that what is happening is both expected and (hopefully) not causing distress to the dying person.

Conclusion

Resuscitating the dying patient in order to make the distressed relative feel better is to use the dying person as a means to an end (ie we are treating them for someone else’s benefit) and not as an end in themselves.  It is not acting – to the dying person- in accordance with the ethical principles of beneficence, justice or non-malfeasance nor with respect for their autonomy.  It would be unethical, and inconsistent with good medical practice, to treat a person who is subject to palliative care in a way that is inconsistent with their treatment plan to make another person feel better.