Today’s correspondent from Western Australia raises an:
… often repeated question … in relation to advanced care directives (ACD) – which are becoming more widely used and known in the prehospital environment. My understanding is that ACDs do not have to be on a particular ‘form’ (https://emergencylaw.wordpress.com/2016/04/08/not-for-resuscitation-in-western-australia/). The ambulance service CPGs I have access to indicate that for an ACD to be followed, the paramedic must actually sight the form/document.
However, the question I am often asked is whether having to sight the document is always a strict requirement?
To use a relatively straightforward example. Let’s say you are called to a patient in cardiac arrest in their home at 9pm at night. The family present all agree that the patient did not want resuscitation, and all are adamant that the patient has an ACD, but they are unable to find it in the house but a copy is held at the GP surgery. Given the late hour the GP surgery has closed and you have no way of accessing the GP to verify the ACD.
There are all sorts of scenarios where you may start resuscitation and ask questions later on – where it isn’t clear what the wishes of the patient are for instance (A DNR tattoo – https://emergencylaw.wordpress.com/2018/01/30/more-on-dnr-tattoos/) or where the family disagree as to what the patient’s wishes are. But in the example given, all the family agree – it’s just the document which can’t be physically sighted.
Perhaps you could argue the doctrine of necessity would indicate resuscitation until the form can be found (the next morning when the GP surgery opens), however would this be considered an assault given the information that the family has provided? Equally, if the family all agree there is an ACD would it be acceptable to form a reasonable belief as to the patient’s wishes and withhold resuscitation?
I have answered that question in a Victorian context see Withholding Resuscitation in Victoria (April 8, 2013).
The law is not complex – see Withholding resuscitation in first aid (November 21, 2017). What’s complex is trying to decide in a very short time what the facts are because the law has to be applied to the facts.
The relevant principles are:
- Consent is required before treatment (Rogers v Whitaker  HCA 58, );
- People can refuse consent even where the treatment that is refused is necessary to save their lives;
- Where a person cannot consent treatment that is reasonably necessary and in their best interests can be administered but not where that is contrary to their known wishes (In Re F  2 AC 1; see also The doctrine of necessity – Explained (January 31, 2017); and
- There is no duty, in fact there is a duty not to provide futile treatment (Airedale NHS Trust v Bland  AC 789; see also Paramedics withholding futile treatment (June 14, 2019).
- Legislation that provides for advanced care directives or the like is simply providing a form to allow people to express their wishes in a way that is recognised by health professionals but it does not limit a person’s right to communicate their wishes in any way they want; that is the common law right to refuse treatment is maintained (see Guardianship and Administration Act 1990 (WA) s 110ZB).
Ethically respect for autonomy says health care professionals must aim to give effect to a patient’s informed wishes. The principles of beneficence and non-malfeasance say that treatment should be directed to benefiting, not harming, the patient. Applying active resuscitation in cases where it is not wanted or futile brings no benefit and in fact brings a harm to patients.
Let us then turn to the example – ‘you are called to a patient in cardiac arrest in their home at 9pm at night. The family present all agree that the patient did not want resuscitation…’ It begs the question ‘why were you called?’ I note that the QAS Clinical Practice Guidelines on Palliative Care instruct paramedics to ‘Determine the reason for requesting ambulance services’ and provides ‘a list of common health problems associated with terminal illness’ that may be why an ambulance was called. In those circumstances they do not call for active live saving measures that would indeed be contrary to the very principles of palliative care.
I’m not sure what the WA CPGs say but they are likely to be, or should be, similar. So it’s a matter of context. Perhaps the person fell out of bed and ambulance were called as carers could not get them back into bed but, before ambulance arrived, they had a cardiac arrest. if the family are adamant that the patient has an Advanced Care Directive is the story consistent with what you are observing? If there is indication that the person is receiving palliative or chronic care at home that may give some confidence that the views being communicated to you are the patient’s views.
If you have to consider what is actually in the patient’s best interests, you need to consider the advice of those around you as they are in the best place to determine the matter. Death is inevitable so we not only cannot but should not strive to delay it for as long as possible nor is there a duty to try and save people’s lives when that is clearly not going to succeed or advance their best interests (again see Airedale NHS Trust v Bland  AC 789).
The clear problem is that paramedics simply don’t have the time to determine those issues in detail. Doctors, in hospitals, can take time to consider issues and if necessary withdraw life sustaining treatment. Paramedics cannot. What that means is that if there is real doubt about the situation, then clearly treat and transport has to be the appropriate course. If the person is unconscious with a head injury suggesting violence and everyone is saying ‘he just fell but he doesn’t want resuscitation’ you would ignore that and no doubt call police. If the person is surrounded by at home medical equipment, a drug cabinet full of restricted end of life type medication, with obvious clinical signs of growing degeneration, you may feel very confident that what you are being told is correct.
The critical answer in WA lies in the Guardianship and Administration Act 1990 (WA) s 110ZB. The Act sets out how to make an Advanced Care Directive and the form it is to take abut at 110ZB says:
This Part does not affect the common law relating to a person’s entitlement to make treatment decisions in respect of the person’s future treatment.
The common law does not require any particular form. We encourage people to discuss their end of life decisions with their family both so the family understand that decisions have been made and that they can communicate those decisions to health practitioners when required. If you cannot or will not listen to the family at the very moment when it most matters that need for discussion becomes irrelevant.
Further persons responsible can make decisions for those that cannot make those decisions themselves (s 1110ZD). Again if you are satisfied (recognising the limitations) that the people in the room include the ‘person responsible’ and they are acting in the patient’s best interests (not their own) then you could be satisfied that the decision being communicated is an appropriate treatment decision to be respected.
In short, the answer is ‘no, you don’t have to see the ACD’. Having said that I recognise the difficulty that must put paramedics in. The ACD is a sure way to have confidence that treatment referred to in that Directive can and should be withheld in accordance with that Directive.
In its absence the common law says a patient can refuse treatment and if the family are communicating those wishes and, further, the family are giving information that helps to understand what is or is not in the patient’s best interests, then that should be taken into account.
If there is any doubt however, then the paramedic should commence treatment pending resolution of that doubt and if that means transport to hospital to allow the doctors’ there to communicate with the family and treating medical staff then that may be the appropriate course.