A paramedic from Western Australia has a question about a patient’s capacity and the decision of a person who holds the patient’s ‘power attorney’.  My correspondent

Went to elderly patient who lives alone and has ongoing mobility issues. Her daughter called us as she couldn’t get her mother out of chair.  Arrived, patient refusing hospital just wants help to get up.  We help she goes to toilet and sits back down under her own strength. The patient is fully orientated to day place time situation and consequences of not going to hospital. Daughter won’t take patient to her house. Daughter states has medical power attorney says we have to take her mother to hospital against her will but couldn’t show us the documents. Where do we stand if don’t take her and hypothetically patient falls later in night and hurts herself family complain, or we force her to go and she complains does capacity override power of attorney and does POA take patient rights away?

Let us, for the sake of dealing with the actual issue of the patient versus her attorney, put aside the fact that the daughter ‘couldn’t show us the documents’.  Let us assume that she did have the documents to hand.  We also need to be careful with language. Usually a ‘power of attorney’ is a power to deal with people’s property (see Transfer of Land Act 1893 (WA) s 143).  There is another term if what we mean is a power to make medical decisions on behalf of a person.

In WA the relevant legislation is the Guardianship and Administration Act 1990 (WA).  This Act provides for the appointment of a guardian, the creation of an ‘enduring power of attorney’ and the appointment of an ‘enduring guardian’ and for decisions about medical care to be made by ‘Persons responsible for patients’.

A guardian can be appointed (Guardianship and Administration Act 1990 (WA) s 43) where a person:…

(b) is —

(i) incapable of looking after his own health and safety;

(ii) unable to make reasonable judgments in respect of matters relating to his person; or

(iii) in need of oversight, care or control in the interests of his own health and safety or for the protection of others;

and

(c)         is in need of a guardian…

It would sound, from the story given, that the patient does not meet the criteria in s 43(b) so I will assume that the daughter was not an appointed guardian.

A power of attorney ceases to operate when a person loses legal capacity.  An enduring power of attorney, on the other hand, allows the attorney to act on the person’s behalf even if the person who granted the power of attorney is no longer competent. It is still the case though that a power of attorney relates to property, not personal care. (Guardianship and Administration Act 1990 (WA) Part 9).

A person can appoint someone as their enduring guardian.  A enduring guardian can make health care decisions for a person (ss 45, 110G and 110ZJ) but can only act where the person who appointed them as enduring guardian ‘is unable to make reasonable judgments in respect of matters relating to his or her person’.

In the context of my correspondent’s story, even if the daughter was appointed as enduring guardian, she is not authorised to make a medical decision where her mother remains competent – ie ‘fully orientated to day place time situation and consequences of not going to hospital’.

A ‘person responsible for a patient’ (which includes a child of the patient) can make decisions about a person’s medical care (s 110ZD) if the person:

… is unable to make reasonable judgments in respect of any treatment proposed to be provided to the patient, the person responsible for the patient under subsection (2) may make a treatment decision in respect of the treatment.

The list of persons responsible is a hierarchical list that is, there is an order of priority. The first person on the list is a spouse, and then a child.  If we assume that my correspondent’s patient was not married or in a defacto relationship then the daughter would be the, or if there is more than one child one of, the person’s responsible, but they still cannot make a decision where the patient remains competent.

Conclusion

Of course I cannot know but the story, as told, would imply that the daughter wanted paramedics to transport her mother as that would be easier for her than having to care for her mother in her mother’s home or in her own home.    Whilst paramedics and hospitals may accept that there are, sometimes, grounds for a social admission (ie admission where the person needs looking after even if they don’t really need medical care) that cannot compel a person who remains competent to accept treatment just because it is easier for someone else.

Where the person remains competent then it is their decision to accept treatment and transport or not.  The concept of the ‘person responsible’ only arises when a person is not competent.   The daughter is not a ‘person responsible’ for her competent mother’s decision making.

If the daughter has been appointed an enduring guardian, they can only act where the patient is incapable of acting.  Where the person ‘is fully orientated to day place time situation and consequences of not going to hospital’ then the decision to stay, or go, is theirs and theirs alone.

If the ‘patient falls later in night and hurts herself’ then that is the same as anyone who falls and hurts themselves. Ambulance services are not there to guarantee that nothing bad happens to anyone.  One would want to hope that your findings were documented but at the end of the day a person’s decision to accept or reject treatment and transport is theirs to make.

Where paramedics to ‘force her to go’ that would be the torts of both assault and false imprisonment and also the crime of assault.  The appointment of a person as an enduring guardian does not take away a person’s rights to make their own decisions whilst they can. It is only relevant if a person is not competent.

Where a person has been appointed as a guardian by the State Administrative Tribunal then that guardian can make decisions that appear contrary to the patient’s wishes, but the Tribunal can only appoint a guardian if the person meets one of the criteria listed in s 43(b), and that will not be relevant in the circumstances described.  If however the person can present an appointment from the State Administrative Tribunal (rather than from the patient) then you would have to infer that despite appearances to the contrary, the patient has been found to be ‘incapable of looking after his own health and safety’ or otherwise incompetent, and so the decision of the guardian should be respected.

A person’s age does not lose the right to make decisions for themselves just because they are old, or because their adult children wish they would make a different decision.