This question was stimulated by a video that I shared via Facebook- for those that don’t access this blot on that platform, I had reposted a blog from Bill Madden’s WordPress – see https://billmaddens.wordpress.com/2020/04/04/nfr-discussions-video/. The post has a link to a video discussing NFR (Not for Resuscitation) orders. The question that this prompted is:
Does the cause of the cardiac arrest need to be inline with the medical conditions stated on the NFR. eg. if a PT in a nursing home choked on a piece of meat and the staff tried to help them up until the point they go into cardiac arrest. Should the foreign body be removed, and resuscitation started being that the cause of the arrest was not in line with the medical conditions on the NFR?
That’s a complicated question and it really depends on the circumstances (doesn’t everything?)
First an NFR order may came about in one of two ways. One is that the patient may be making an express decision to refuse treatment they don’t want. Move away from resuscitation and think blood transfusion. The person does not want that treatment even though the medical staff and good medical practice says that it is indicated. It doesn’t matter, treatment cannot be given if the patient refuses to consent to that treatment. In this context the question of why they are refusing may be relevant; I’ll come back to that, below.
The other source of an NFR order is where the treatment is not indicated by the patient’s condition or will be futile. That is a medical decision and it may be that the patient wants the treatment, but a patient’s desires does not give rise to an obligation. The example I often use is a person who insists on a prescription for antibiotics for a viral infection. Antibiotics are not indicated so a doctor’s decision to not administer the treatment is a clinical decision and does not depend on the patient’s wishes. In the resuscitation context if a person is approaching the end of their life and given the various co-morbidities resuscitation is not likely to be effective, in effect cardiac arrest will simply be the end process of whatever else that is affecting them, then the medical staff may order ‘NFR’ – we’re not going to resuscitate this person just as we are not going to give them a transplant or attach them to expensive machines because in the circumstances it would not be good medical practice.
How is that relevant? Well the answer to the question does to a certain extent depend on how we got there. Consider a person who refuses treatment. In In Re T  EWCA Civ 18, Ms T refused a blood transfusion but she had been advised that she was unlikely to need blood and that there were non-blood products that could be used. When her situation deteriorated the court had to consider whether she had intended to make a choice between life and death, or between (all else being equal) blood and non-blood products. Because the situation that had arisen was not the situation she’d been contemplating (and for other reasons) it was held that her refusal did not apply and that the hospital could, in accordance with good medical practice, administer blood.
In Malette v Shulman (1990) 67 DLR (4th) 321, on the other hand, Ms Malette had a card that said she did not want blood under any circumstances. How it was that she came to be in need of a blood transfusion was irrelevant.
As noted in the video, at the road side the default position has to be commence CPR but in hospitals there may be opportunities to explore people’s wishes and in residential facilities particularly those that are established for nursing, aged or palliative care there should be open discussion about what people want and what is medically indicated. In those circumstances you can ask ‘what was being refused/denied and why?’
If CPR is being refused because in the circumstances it is not medically indicated then whether the person arrests due to an arrhythmia in their sleep or after a period of hypoxia caused by choking, the relevant circumstance where the NFR order was contemplated has indeed arisen.
If, on the other hand, the person has in their advance directive indicated that they realise they are suffering from a terminal illness and when the illness reaches its end stage they do not want to be kept alive by heroic means, including resuscitation, then the fact that they choked on their sandwich may well indicate that resuscitation in this circumstance was not what they were refusing. This may be particularly relevant if medical staff are called upon to do the resuscitation and they know that the patient is not yet at the end stage of their illness so the condition that was intended to trigger the refusal does not yet exist. But in those circumstances, the decision may still be that this treatment is, all things considered, not medically indicated.
It may be worth noting that in Victoria, the Medical Treatment Act 1998 (Vic) s 5 (now repealed) provided a process for a person to refuse treatment ‘for a current condition’. That Act was repealed and replaced with the Medical Treatment Planning and Decisions Act 2016 (Vic) that does not have that limitation that is it does not say that advance care directives are limited to treatment for a ‘current condition’ (see ss 11-13). Section 11 says:
Subject to any statement in an advance care directive to the contrary, a reference in an advance care directive to particular medical treatment includes a reference to any other medical treatment that is—
(a) of substantially the same kind; or
(b) only distinguishable on technical grounds not likely to be understood or appreciated by the person who gave the advance care directive.
Assume a person is being treated for a terminal illness and completes an advance directive acknowledging that their death is imminent, and they do not want CPR. IF they choke on a sandwich and have a cardiac arrest the treatment, CPR, is substantially similar as the treatment they have refused as a result of their illness and in line with s 11 I would interpret the advance care directive as also including a refusal of CPR in those circumstances.
That’s a complicated answer I’ll grant you. If I can simplify it, it would be:
- If the NFR order is made because all things considered, the treatment is not medically indicated then it cannot matter that the cause of the cardiac arrest is not related to the conditions the person is being treated for. If, because of their co-morbities CPR is not indicated then it is not indicated however it is triggered.
- If the NFR order is made to honour the patient’s own choices – an advance directive – the answer would depend on its terms. Is it intended to apply only in one circumstance but another has arisen (like in In Re T) or is it a refusal ‘in any circumstance’ (as in Malette v Shulman). To borrow the language from the Victorian legislation, is the treatment ‘substantially the same’ as the treatment that has been refused.