Today’s question again returns to advance care plans and directives
Many registered paramedics will end up having a discussion with carers, family and friends when they attend a patient either in an aged care facility or in their private residence, about the authority of an ‘Advanced Care Plan’. What are the legal obligations of the paramedic, when they attend a patient in either of these settings and the carers or family and friends request the paramedic to provide clinical care that is different or contradicts the authorised care plan?
That is, the Advanced Care Plan appears to be documented and authorised by the appropriate people, and appears to be recent. What clinical obligations does the paramedic bear, on behalf of the patient in these circumstances when they are being asked, advised or directed to do differently? It is understandable that if a patient appeared to have competency and capacity, and that you were clinically assessing were to ask you for some type of alternate clinical care that contradicted the Advanced Care Directive for themselves, that the paramedic may amend the treatment of the patient and assist with their wishes for care, or is it? What type of discussions would the paramedic have with the representatives of the caring facility, or the family or friends of a patient when discussing the authenticity and legal requirements of an Advanced Care Directive in commencing or withholding treatment?
It does depend on what state you are in. For example in Victoria the Medical Treatment Planning and Decisions Act 2016 (Vic) s 53 says, emphasis added:
(1) Subject to subsection (2), a health practitioner may administer medical treatment (other than electroconvulsive treatment) or a medical research procedure to a person without consent under this Part or without consent or authorisation under Part 5 if the practitioner believes on reasonable grounds that the medical treatment or medical research procedure is necessary, as a matter of urgency to—
(a) save the person’s life; or
(b) prevent serious damage to the person’s health; or(c)
(c) prevent the person from suffering or continuing to suffer significant pain or distress.
(2) A health practitioner is not permitted to administer medical treatment or a medical research procedure to a person under subsection (1) if the practitioner is aware that the person has refused the particular medical treatment or procedure, whether by way of an instructional directive or a legally valid and informed refusal of treatment by or under another form of informed consent.
The term ‘health practitioner’ includes a registered paramedic as well as ‘an operational staff member within the meaning of the Ambulance Services Act 1986’ (s 3).
Other states, like New South Wales don’t have refusal of treatment legislation but at common law people can refuse treatment including treatment that is necessary to maintain their life (see https://emergencylaw.wordpress.com/?s=consent). In Collins v Wilcock  3 All ER 374 at p. 378 Lord Goff said:
The fundamental principle, plain and incontestable, is that every person’s body is inviolate. It has long been established that any touching of another person, however slight, may amount to a battery… “the least touching of another is anger is a battery.” The breadth of the principle reflects the fundamental nature of the interest so protected. As Blackstone wrote in his Commentaries, 17th ed. (1830), vol. 3, p. 120:
“the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man’s person being sacred, and no other having a right to meddle with it, in any the slightest manner.”
The effect is that everybody is protected not only against physical injury but against any form of physical molestation.
If the need for consent for medical treatment means anything, it means that people can refuse treatment at the most important times of their life, and death. People can express wishes on what they wish others would do but it’s not their call. If the patient in consultation with a medical practitioner has determined that treatment is overly-burdensome or futile and that has been recorded, it should be respected. Anything less is to fail to treat the patient with dignity and as a end in themselves. Remember that treatment of the incompetent is justified by the doctrine of necessity – In In Re F  2 AC 1 Lord Goff said:
The basic requirements, applicable in these cases of necessity, that, to fall within the principle, not only (1) must there be a necessity to act when it is not practicable to communicate with the assisted person, but also (2) the action taken must be such as a reasonable person would in all the circumstance take, acting in the best interests of the assisted person.
If the person has refused treatment and you ignore that because ‘the carers or family and friends request the paramedic to provide clinical care that is different or contradicts the authorised care plan’ you are then ‘acting in the best interests of the’ ‘carers or family and friends’ and not ‘in the best interests of the assisted person’.
To return to Victoria (s 51) says:
A health practitioner may refuse under this Part to comply with an instructional directive if the health practitioner believes on reasonable grounds that—
(a) circumstances have changed since the person gave the advance care directive so that the practical effect of the instructional directive would no longer be consistent with the person’s preferences and values; and
(b) the delay that would be caused by an application to VCAT under section 22 would result in a significant deterioration of the person’s condition.
That does cover the situation where the ‘patient appeared to have competency and capacity, and … were to ask you for some type of alternate clinical care that contradicted the Advanced Care Directive for themselves…’. It could also apply if ‘the carers or family and friends’ tell you that the person’s ‘circumstances have changed since the person gave the advance care directive’.
In the conversation the paramedic has to consider are ‘the carers or family and friends’ requesting alternative treatment because that is what they want or are they in fact communicating that circumstances have changed such that you can say “I believe and have grounds to be believe that there has been a relevant change in the patient’s circumstances.” Choosing to ignore the directive because ‘I can point to what they said and that gets me out of this dilemma’ is not justified. You have to hear what ‘the carers or family and friends’ are saying and ask
In light of what I have been told, do I believe that the person’s circumstances have changed so that the practical effect of the instructional directive would no longer be consistent with their preferences and values’ or am I just hearing that these people want a different outcome or wish their friend or family member had made a different decision?
That sort of test or question would also be applicable to a refusal in other states or territories and under common law.
How does this play out in practice?
In the extreme (but certainly not outlandish, this situation happens regularly) case of cardiac arrest, any treatment is time critical. We all know the sayings about every minute without treatment you lose 10% of your chance of survival.
These discussions aren’t quick ones to have. I’ve always taken the approach in cardiac arrest of “if in doubt, start”, because while you can always change your mind and stop resuscitation attempts after a discussion, it’s a lot harder to change your mind after five minutes (and having lost another 50% of your chances of survival) and then start.
If you walk in the door and you’re presented with what appears to be a valid advanced directive saying not for CPR, but then someone else turns up and says that they would have wanted it – where do you stand if you start? While it’s likely something that nothing would ever come of in a legal sense, are you committing a battery if you start, have the discussion while your partner is jumping up and down on the patient’s chest, decide that the other family member is expressing their wishes not the patient’s, and stop?
These are indeed complex issues and I cannot say how it works out as every case would be different. I think you have to put the whole scenario on context – where is the patient? is there evidence that they are expected to be at the end of their life? Fundamentally though if you have ‘what appears to be a valid advanced directive saying not for CPR’ you should honour it. If someone says ‘they would have wanted CPR’ you have evidence that they’re wrong. Of course the easy option is do CPR and let a doctor decide later as the dead won’t complain one way or the other but the person who ‘turned up’ might but that is neither ethical nor professional. You have to put the patient first. And if there is a valid refusal then yes that is a battery to treat someone against their wishes or with treatment that you do not believe is in their best interests.
‘what appears to be a valid advanced directive saying not for CPR’ – What makes for a valid advanced care directive?
There are many times we are provided an advanced care directive from a nursing home that is not clear or is lacking information, at what point can we accept or not accept the advanced care directive as their wishes?
In most states and territories there is legislation so a form that appears to comply with the legislation should be accepted on its face – ie you accept it for what it says. The common law says anything will do hence the card in Ms Malette’s wallet (see the posts here that discuss Malette v Shulman) was sufficient. And all the legislation says it provides a way to refuse treatment that is on top of not instead of the common law so a refusal does not have to comply with the legislative form. Nursing homes and other chronic health care facilities must have processes and forms to record patient’s wishes as well as decisions. What you have to ask yourself, in context, is ‘do I have reason to doubt this’. If in doubt of course you treat the patient according to your standard treatment, but the issue is not ‘is this form completed correctly’ but ‘do I have any reason to question that this form was intended to reflect the person’s wishes’. Being unclear you might say ‘yes’ ie it’s not at all clear it was meant to apply in these circumstances; as for lacking information the question is what information and do you actually think it’s critical not ‘there was a box left blank so the form was wrong and therefore of no effect’. The form is not important (hence again why I’ve made the argument on posts on this site that I think a ‘Do not do Cardio-Pulmonary Resuscitation’ tattoo should be honoured).