A NSW Paramedic asks:

We had a 30yr old palliative end of life care patient that we were transporting to hospice because the time was nearing when his family would have to say goodbye. He was in an out of consciousness. GCS 12 with us. But very agitated, moving constantly. The patient had ceased cancer treatment and verbally expressed his wishes for absolutely no interventions which his partner and family had expressed to us. The patient had not signed any legal care plan because in his mind, it was too much of a commitment to die. He just felt uncomfortable signing but was under end of life care with a palliative care team and only comfort measures for pain and nausea. Palliative care nurse was on scene, confirmed this. His partner and father were present asking us for no treatment, only transport.

The question are, legally…

  1. In the absence of a care plan/NFR, can we justify bypassing two Emergency Departments to transport to the hospital where he is palliated.
  2. If the patient passes away en route, is there a possibility that a member of his family can turn around later and ask why we did not provide fluids, etc to keep him alive long enough for everyone to be with him when the time comes…because there is no legal document stating to withhold fluids, supplemental oxygen, etc. Only his partner’s and father’s word. But legally, can there be a loss of registration/prosecution if someone in that family decided to prosecute.
  3. What were our obligations in this instance? To commence treatment? To commence CPR? No legal documentation present. No enduring guardian.

We have spoken to many people understand the normal practices regarding this, but with the professional registration now, I think we want to know our obligations and confirmation that legally there are no repercussions.

There are two fundamental principles that apply here – the first is that a person is entitled to refuse treatment, any treatment, even if it is necessary to save their life.  Where forms are prescribed, and I note that there is no prescribed form and no relevant legislation in NSW, those forms are simply one way of communicating the patient’s wishes – not the only way – see Victorian decision on refusing medical treatment – reviewing the principles (November 24, 2018).   All medical end of life decision making legislation provides that the common law right to refuse treatment exists along with the legislative form meaning any effective communication of a patient’s wishes is sufficient – see for example Powers of Attorney Act 1998 (Qld) s 39; see also ““Please do not give me CPR”: ‘Do Not Resuscitate’ requests in retirement living” (September 9, 2019). See also all the posts that appear here – https://emergencylaw.wordpress.com/?s=refusing+treatment.

The second principle is that treatment should only be given in the best interests of the patient.  There is no obligation to provide futile or over burdensome treatment and in some circumstances to do so may be a battery and itself evidence of improper professional conduct (see Paramedics withholding futile treatment (June 14, 2019)).

In this case we are told the patient has ‘verbally expressed his wishes for absolutely no interventions’ and this has been confirmed by family members and the palliative care nurse. Further the request for ambulance transport is to transport the person to a hospice for palliative care, not to hospital for treatment.

To turn to the questions:

  1. In the absence of a care plan/NFR, can we justify bypassing two Emergency Departments to transport to the hospital where he is palliated.

Absolutely.  You were tasked with transporting the person to a nominated destination because he was terminally ill.    There could be no justification for chosing to take him to an emergency department as he did not need emergency treatment.

  1. If the patient passes away en route, is there a possibility that a member of his family can turn around later and ask why we did not provide fluids, etc to keep him alive long enough for everyone to be with him when the time comes…because there is no legal document stating to withhold fluids, supplemental oxygen, etc. Only his partner’s and father’s word. But legally, can there be a loss of registration/prosecution if someone in that family decided to prosecute.

Anything’s possible.  You could treat someone with all professional care and skill and someone could allege something.  Just because someone asks a question does not mean that there is no answer.  If someone was to ‘ask why we did not provide fluids, etc…’ the  answer would be ‘The treatment was not consented to nor indicated in the circumstances.’  The family cannot decide to prosecute, they could raise it with the paramedicine board who may indeed ask you to explain but that does not mean that there is not a fine explanation that they can communicate to the family.

The critical question is what could be ‘reasonably expected of a practitioner of an equivalent level of training or experience’.  That is what do you think your peers would do and if you are acting in accordance with that peer professional opinion you are acting as a reasonable and professional paramedic.  If you think the ‘normal practices’ are to treat the patient in accordance with his condition and wishes then that’s fine, because to ignore those wishes and to impose refused and futile treatment is to fail to act in your patient’s best interests and may be an assault and I would suggest is more likely to lead to professional action than honouring the obvious need if the patient is in fact in palliative care and the end stage of a terminal illness.

  1. What were our obligations in this instance? To commence treatment? To commence CPR? No legal documentation present. No enduring guardian.

To act in the patient’s best interests and in accordance with their wishes, which do not have to be communicated on a prescribed form. Of course every case is different but based solely on the scenario described I would suggest the obligation was to allow the person to end his life with the greatest dignity possible.