Today’s question returns to the question of advanced care directives and the right of people to refuse treatment. My correspondent asks:

What would the legal position be if an advanced care directive for no CPR is presented but the patient’s enduring guardian requests CPR be performed?

Would this change if the advanced care directive was signed by the patient while they had capacity rather than by the enduring guardian who has now changed their mind?

Also in a similar vein, if there is no advanced care directive or enduring guardian but the patient’s family asks for no CPR and it would seem to be good medical practice to agree with the family would this be appropriate? For context I am practicing in NSW where I believe the guardianship act provides a hierarchy of people who can provide consent. I am a little confused here as consent is not required to perform life saving treatment however I’m unsure what the legal position is where there is not only an absence of consent, but a refusal from the responsible person.

One last question, would a paramedic need to sight the enduring guardian document or could they take the person’s word for it? This might be particularly relevant if the person purporting to be the enduring guardian is only contactable by phone.

‘The fundamental principle, plain and incontestable, is that every person’s body is inviolate’ (Collins v Wilcock [1984] 3 All ER 374, p. 378). In the absence of statutory compulsion, a person has the absolute right to determine what medical treatment they receive or don’t. (In terms of ‘statutory compulsion’ think involuntary mental health treatment, compulsory decontamination in fire and emergency services legislation and as come to the fore in these COVID times, there are provisions in public health law to compel people to undergo treatment if they pose a risk to public health – to the principle is ‘fundamental’ but can be overridden by clear and unambiguous legislation).

At common law a person can communicate their wishes in any way that is likely to be effective, including by carrying a card in their wallet that says ‘no blood transfusions’ and, as I have argued elsewhere, I would suggest an unambiguous tattoo – (Malette v Shulman (1990) 67 DLR (4th) 321 discussed in all the posts found here – https://emergencylaw.wordpress.com/?s=malette)

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, except in South Australia where there is no equivalent provision, the legislation 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 Medical Treatment (Health Directions) Act 2006 (ACT) s 6; Advance Personal Planning Act 2013 (NT) s 89; Powers Of Attorney Act 1998 (Qld) s 39; Medical Treatment Planning And Decisions Act 2016 (Vic) s 10; Guardianship and Administration Act 1990 (WA) s 110ZB). In NSW and Tasmania there is no legislation about advance care plans, so it is the common law that applies.

What would the legal position be if an advanced care directive for no CPR is presented but the patient’s enduring guardian requests CPR be performed?

Fundamentally if the document has been executed by the patient, it is their statement of their wishes and it must apply. Without again going through the exercise of citing the legislation in each jurisdiction, enduring guardians are generally not allowed to make decisions that are contrary to the known wishes of the patient.

There is also the issue that a person cannot insist in futile treatment. If in the paramedics professional opinion, the treatment is futile then no-one can insist that it be applied. The focus must always be on the patient’s best interests and subjecting someone to futile treatment is not advancing their interests (Airedale NHS Trust v Bland [1993] AC 789).

Would this change if the advanced care directive was signed by the patient while they had capacity rather than by the enduring guardian who has now changed their mind?

Absolutely. As noted above if it’s signed by the patient then it’s their wishes. If it was executed by an enduring guardian or other appointed medical decision maker at a time when the patient could not make or communicate a decision then the substitute decision maker, like anyone, can change their mind.

If it is their document they can change their mind and the document ceases to have effect.

… if there is no advanced care directive or enduring guardian but the patient’s family asks for no CPR and it would seem to be good medical practice to agree with the family would this be appropriate?

Where a patient is in cardiac arrest they cannot (obviously) consent or refuse consent to treatment. In that case treatment can be given ‘such as a reasonable person would in all the circumstance take, acting in the best interests of the assisted person’ but ‘officious intervention cannot be justified by the principle of necessity. So intervention cannot be justified … when it is contrary to the known wishes of the assisted person, to the extent that he is capable of rationally forming such a wish’ (In Re F [1990] 2 AC 1). In the circumstances described one doesn’t know what the ‘wishes of the assisted person’ so the question comes down to the paramedic’s assessment fo what would be in the patient’s best interests. That is in part a clinical decision – do the circumstances indicate this treatment will benefit the patient – as well as a broader social decision. In the seconds available to make a decision is there an indication that based on the person’s history and values they would consider the treatment a benefit or a harm. Here the family’s views can help inform, but do not direct that decision making.

It is true that in NSW (and in all states) there is a hierarchy of people who can consent to treatment – the notion of the ‘person responsible’.  In NSW that list is (for an adult) is (Guardianship Act 1987 (NSW) s 33A(4)):

(a) the person’s guardian, if any, but only if the order or instrument appointing the guardian provides for the guardian to exercise the function of giving consent to the carrying out of medical or dental treatment on the person,

(b) the spouse of the person, if any, if:

(i) the relationship between the person and the spouse is close and continuing, and

(ii) the spouse is not a person under guardianship,

(c) a person who has the care of the person,

(d) a close friend or relative of the person.

A person responsible may give consent to treatment but it’s not clear that may refuse consent. If they give consent treatment may be given as if the patient has given consent (s 46). If there is no consent so if the person responsible cannot be located or refuses to give consent, treatment cannot be given unless otherwise authorised by the Act (s 35)

In an emergency there is not time to debate these issues, so s 37(1) says

Medical or dental treatment may be carried out on a patient to whom this Part applies without consent given in accordance with this Part if the medical practitioner or dentist carrying out or supervising the treatment considers the treatment is necessary, as a matter of urgency:

(a) to save the patient’s life, or

(b) to prevent serious damage to the patient’s health, or

(c) except in the case of special treatment–to prevent the patient from suffering or continuing to suffer significant pain or distress.

It is not clear how all this applies to paramedic practice or first aid (bystander CPR). For the purpose of this Act medical treatment is defined in s 33 as:

medical treatment (including any medical or surgical procedure, operation or examination and any prophylactic, palliative or rehabilitative care) normally carried out by or under the supervision of a medical practitioner

Those old enough to have watched the US show ‘Emergency’ will remember paramedics Roy DeSoto and Johnny Gage pulling out the old radio to communicate with Rampart Hospital to get orders to “give D5W TKO”; Acknowledged by their call sign “KMG365”. Those paramedics were acting ‘under the supervision of a medical practitioner’ but paramedicine has come a long way since then. Today paramedics provide paramedic care and they are not medical practitioners nor are they acting ‘under the supervision of a medical practitioner.

Second there are detailed procedures to be followed to get consent from a ‘person responsible’. Section 40 says:

(1) Any person may request a person responsible for a patient to whom this Part applies for that person’s consent to the carrying out of medical or dental treatment on the patient.

(2) Such a request shall specify:

(a) the grounds on which it is alleged that the patient is a patient to whom this Part applies,

(b) the particular condition of the patient that requires treatment,

(c) the alternative courses of treatment that are available in relation to that condition,

(d) the general nature and effect of each of those courses of treatment,

(e) the nature and degree of the significant risks (if any) associated with each of those courses of treatment, and

(f) the reasons for which it is proposed that any particular course of treatment should be carried out.

(3) In considering such an application, the person responsible for the patient shall have regard to:

(a) the views (if any) of the patient,

(b) the matters referred to in subsection (2), and

(c) the objects of this Part.

It would not be possible for paramedics and a person responsible to go through that procedure at a out of hospital cardiac arrest.

If you can identify the person responsible and you are wondering whether CPR is called for their views may help decide whether resuscitation is in the patient’s best interests. I have no doubt that is a difficult call to make in the time available, but it is part of assessing the entire scenario – where is the patient, what are their circumstances.  If they are in a palliative care facility or at home with evidence that they are receiving palliative care, the families wishes my help confirm the view that this is not in the patient’s best interests. If on the other hand, the patient needs CPR because they’ve been beaten unconscious by a family member then their view would be irrelevant. Context is everything. 

My view is that a refusal, or a demand, or a request from the person responsible is something to be considered as part of the decision-making process. Commencing CPR in accordance with ambulance protocols given the urgency of the situation will not be unlawful given the procedures that have to be followed to get consent from a ‘person responsible’ (Guardianship Act (NSW) s 40).

Would a paramedic need to sight the enduring guardian document or could they take the person’s word for it?

Again I think context is everything. If there was any doubt in your mind, raised eg by someone saying ‘you’re not their guardian’ then you would want to see it. But on the other hand, if those there say ‘Uncle John was his appointed guardian, we’ll ring him and get to talk to you’ and the person on the phone says ‘yes I’m John, and I was appointed on xyz date …’ and you have no doubt that may be sufficient.

Although it was about the advance care directive, not the appointment of an enduring guardian, I don’t think I can go past my answer to the question Do paramedics need to see the advance health directive in WA? (July 8, 2019).

Conclusion

I don’t think one can go past NSW Ambulance protocol C2 which says:

Resuscitation should be commenced if there is any doubt as the validity or currency of a Treatment Directive; or any ambiguity or uncertainty about the situation or patient’s history. Resuscitation may be withdrawn as further information becomes available.

Whether there is ‘doubt’ ‘ambiguity’ or ‘uncertainty’ depends on all the circumstances. Context is everything.

See also Revisiting conflict between advance directives and those near and dear to the patient (February 29, 2020).

See also

For an excellent resource on these questions see the website of Advance Care Planning Australia and, in particular, their page on Advance care planning and the law.