Today’s correspondent asks if I:

… have any articles related to this latest education package from NSWA:

It involves whether or not it is justifiable for paramedics to take the word of bystanders/family to withhold treatment or transport of a patient without capacity, without any paperwork to prove guardianship status, health status or palliative care status. Essentially, we were told that as long as we document who told us the information, that’s sufficient (the rationale being that “it’s on them if they lie to us”).

I was uncomfortable about this for many reasons. Don’t we have a duty of care to ensure we see a written DNR or guardianship paperwork or medical/palliative information – if what we’re being asked to do (or not do) could have serious or life-threatening consequences?

My notes on the case study presented to us and my objections to it are below:

During the session covering the S9 Palliative Care protocol, I raised some concerns about a particular case study. From memory, the case study involved a 60 YOF at home with advanced dementia, family on scene, S/S consistent with a severe febrile/respiratory illness, with no paperwork and no access to GP. Family refusing transport to hospital.

This was presented to us as one with “no wrong answer” with respect to whether to treat under S9 or allow a P2 or transport to hospital. It was my view that the case study only had one appropriate option – to transport to hospital – on the basis that due to no paperwork/no GP access, a paramedic could not be sure a) that the S/S were solely due to the palliative diagnosis, b) who the person responsible/guardian actually was and c) what her actual wishes were (if she made any prior to losing capacity).

With literally nothing to corroborate the story from the family, the educator was telling us to trust the family in this case study because (words to the effect of) “if a person claims to be the guardian and they lie to you, it’s their fault, not yours”.

1. Case study was not clear that S/S related to life limiting diagnosis – “Protocol S9 provides treatment options and advice for all patients diagnosed with a life-limiting illness… whose presenting condition is related to their existing life-limiting diagnosis” (S9, para. 1).

2. Case study had family as person responsible refusing treatment and no paperwork “Where a patient is unable to communicate their wishes to paramedics, the person responsible (refer protocol A3) becomes the nominated decision maker” (S9, para. 4), “It is important to review the terms under which guardians are appointed before making a decision and seek legal advice if you are unsure.” (Protocol A3 ref. Further guidance – refer to Consent to Medical and Healthcare Treatment Manual, p.29, accessed online 22/5/22).

3. The S/S were serious and there was no paperwork- “In circumstances where the refusal of treatment may lead to death, or a serious deterioration of the patient’s health, the refusal should be in writing and signed by the patient.” (Protocol A3 ref. Further guidance – refer to Consent to Medical and Healthcare Treatment Manual, p.28, accessed online 22/5/22).

This is indeed a complex situation and it’s true there is no correct answer. Each case will depend on its facts, context, and paramedic’s judgment. For a related discussion see Do paramedics need to see the advance health directive in WA? (July 8, 2019).

The primary concern has to be the patient’s best interests, not the question of who is responsible or at ‘fault’.  

The law

The law is not as clear as one would like. A paramedic has a duty of care to their patient. The duty is a duty to take reasonable care, not to guarantee safety. What is ‘reasonable’ depends on all the circumstances. In Burnie Port Authority v General Jones [1994] HCA 13, Mason CJ, Deane, Dawson, Toohey and Gaudron JJ said:

Where a duty of care arises under the ordinary law of negligence, the standard of care exacted is that which is reasonable in the circumstances. It has been emphasised in many cases that the degree of care under that standard necessarily varies with the risk involved and that the risk involved includes both the magnitude of the risk of an accident happening and the seriousness of the potential damage if an accident should occur

Where a patient cannot communicate, then it is reasonable for a paramedic to take action that “a reasonable person would in all the circumstance take, acting in the best interests of the assisted person”. The treatment cannot ‘justified when it is contrary to the known wishes of the assisted person…’ (In Re F [1990] 2 AC 1).

There is no duty on a medical, or paramedical practitioner to provide treatment that is futile (Paramedics withholding futile treatment (June 14, 2019)).

The Guardianship Act 1987 (NSW) refers to those who can give consent for medical treatment. This includes the ‘person responsible’ (s 33A). To obtain consent from the person responsible, the practitioner seeking that consent must (s 40):

… 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.

Discussion

Clearly a paramedic cannot really go through that process so the idea of obtaining consent from a person responsible is not really relevant in the paramedic context. What is relevant is that the advice from the patient’s family can help a paramedic decide whether or not any treatment is futile, in the patient’s best interests or consistent with their prior wishes.

Any paramedic considering withholding treatment on any of those bases (futility, not in the patient’s best interests or contrary to their prior wishes) has to have a degree of satisfaction commensurate with the risk to the patient. If the risk of allowing the incompetent patient to stay at home on an undertaking from their family that they’ll take the patient to their GP in the morning is low, then the degree of confidence required may be low.

But if the issue is really life and death then the degree of satisfaction would need to be much higher and the care that a paramedic must take to satisfy themself that any of the criteria have been met must be higher. But it’s not impossible. If all the evidence is consistent that the patient is terminally ill, that the treatment is unlikely to give a meaningful extension and/or there is evidence that the persons at the scene really are family who appear to have the patient’s best interests at heart then one might have the requisite satisfaction that a decision to withhold treatment will be in the patient’s best interests and/or consistent with their wishes.

In asking the question, my correspondent felt that, in the circumstances described, “a paramedic could not be sure a) that the S/S were solely due to the palliative diagnosis, b) who the person responsible/guardian actually was and c) what her actual wishes were (if she made any prior to losing capacity).”  If a paramedic did have those doubts then a decision to treat and transport would be reasonable.

Another paramedic may, in all the circumstances of an actual case, looking at the patient, the surroundings, the family etc be satisfied that transport to hospital would not be in that patient’s best interests.  In that case leaving the patient would be reasonable.

It is not a statement of law, but I don’t think it’s a bad rule of thumb to consider that one acts ‘reasonably’ if one has ‘reasons’ for one’s actions. If, in either case, the paramedic can point to the factors that made them act – either by transporting or not – then their action was at least based on reasons. A court ultimately does not have to accept the process of reasoning, but at least it is a start.

Conclusion

I would agree with the assessment that the presentation as described is ‘one with “no wrong answer”.’  This type of training is meant to identify the sort of issues one would want to consider but there will never be enough in a story to be able to say what the ‘right’ answer is. The best I can do is restate the law:

1. Treatment may be provided to a patient that cannot consent provided:
   1. The treatment is in the best interests of the patient; and
   2. It is not contrary to their prior, known wishes.
2. There is no duty to provide futile treatment.

Assessing the patient’s signs and symptoms and listening to their family will help a patient determine whether treatment is in the patient’s best interests and/or consistent with their prior wishes and values.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.