Today’s correspondent says:
In some cultures, it is the “done thing” for relatives to make the decisions on behalf of family members. Obviously in our western self-autonomy driven society we encourage our patients to make decisions for themselves regarding their own healthcare. However, what is the legal perspective where a patient who is deemed to have capacity states that they wish for their family member to make the decision on their behalf?
I’m going to assume we’re talking about situations where the patient is competent (in which case power under substitute decision making law – eg as guardian or ‘person responsible’ won’t apply) and I will assume there is no advance directive in place. If those things are in place or the patient is not competent then it’s a different scenario. I infer that the key to this question is where a competent person defers decision making to others.
This is a difficult question and I confess I’ve grappled with what I think the answer is. Having argued in my head both for and against the right to delegate, my reaction is that the law in Australia requires a competent patient to make their own decision. A patient can of course seek advice from others and can act in accordance with that advice. So they may ask the relative ‘what do you think’ and the answer can, without being undue influence, influence their decision.
Equally they could say ‘I cannot decide, you decide’ but if I was a treating practitioner and the nominated delegate made a decision, I would want the patient to confirm that it is indeed their own decision. As has been noted elsewhere in this blog, medical decision must be preceded by the patient’s consent, not someone else’s consent.
Where a patient purports to delegate to another there is an issue of ‘undue influence’. In In Re T  EWCA Civ 18 Staughton LJ said (at ):
In order for an apparent consent or refusal of consent to be less than a true consent or refusal, there must be such a degree of external influence as to persuade the patient to depart from her own wishes, to an extent that the law regards it as undue. I can suggest no more precise test than that.
The critical test is what is the person’s own wishes. There is a risk that a person delegates to another out of fear or if it is true that culturally it is the ‘done thing’ but that does not mean that the decision is their ‘own’ wish which is the critical issue. The patient could endorse the delegate’s decision by confirming it or acting accordingly eg if they cooperate with treatment consented to by the delegate then there would be an implied consent from the patient. But if there was any indication that they were unhappy with the decision made by the delegate then as a practitioner I would want to confirm what their own wishes were.
People can delegate decision making to others eg by executing an enduring power of attorney or medical authority (called different things in different jurisdictions) but these generally need to be witnessed and the patient needs to be assessed by a doctor or lawyer on their competence and understanding. Allowing them to delegate at the scene does not carry those safeguards. Further those powers only apply when the person is not competent which is not the scenario under discussion. Equally provisions allowing a person responsible to make decisions apply when a patient is not competent and there are various steps that need to be flowed that are not applicable in paramedic practice (see for example Guardianship Act 1987 (NSW) s 40 ‘Consents given by persons responsible for patients’). Given the formality and limited application of those procedures I don’t see how merely saying ‘Let person y decide’ would constitute the patient’s effective consent.
A person may want to delegate to another because the pressure of making a decision is too hard or because they cannot take into account the information that is being given, in which case the patient is not competent. A relative can give context to the patient’s circumstances and help a practitioner determine what is in the patient’s best interest but I don’t think they can actually make a decision for the patient – see Third party refusing treatment (March 23, 2016).
I don’t think a competent patient can delegate decision making to another person. They can seek advice from another person, they can even invite the other person to decide. If that person – the delegate – makes a decision then if I was a treating practitioner I would want to confirm that with the patient along with providing advice on what that means.
If the decision is to accept treatment that the practitioner is offering there is little issue. If the decision is to refuse that treatment then as a practitioner I would want to ensure that the patient understood that it was their decision, that if they wanted to go along with the decision made by the ‘relative’ that they did so of their own free will and not out of a feeling of compulsion and that they understood the consequences. If they did they have not ‘delegated’ the decision even if their choice is to go along with the decision their nominated delegate made. But at the end of the day I think it has to be the patient’s decision.
Good afternoon Michael.
I have read your article & note that you make no mention of “An Advanced Care Directive” nor “An Enduring Power of Attorney”, both of which offer a patient opportunities for others to make decisions on their behalf. Whilst the Advanced Care Directive is not classified as “Legal” document the Enduring Power of Attorney is considered legal binding. I appreciate that there may very well be also Legislative variations between States & Territories. My interest in this topic stems from my involvement as an Instructor with Mental Health First Aid (MHFA) Australia where I refer to both of these matters during course delivery. I would be interested in your opinion regarding these patient delegation options.
Thank you & keep up the good work.
I do mention advance directives and medical power of attorney, but I mention them to explain why they are not being discussed. What I said was “I’m going to assume we’re talking about situations where the patient is competent (in which case power under substitute decision making law – eg as guardian or ‘person responsible’ won’t apply) and I will assume there is no advance directive in place. If those things are in place or the patient is not competent then it’s a different scenario. I infer that the key to this question is where a competent person defers decision making to others.”
As I also said an enduring power of attorney is part of substitute decision making law and is not relevant whilst the patient is competent to make their own decisions which is what this question was about. An advanced care directive is absolutely a ‘legal document’. These things have been discussed in many posts on this blog – see https://emergencylaw.wordpress.com/?s=consent .