A correspondent wrote this as a comment on the post Legal justification for treating the unconscious (April 11, 2021):

“Consent is not necessary, however, where a surgical procedure or medical treatment must be performed in an emergency and the patient does not have the capacity to consent and no legally authorised representative is available to give consent on his or her behalf.”

Hi Michael, [NSW] in this case if the presentation of the patient lacks capacity due to an acute illness -meets the definition of emergency treatment but a person responsible says no.

Does a health care professional have a right to do in their clinical opinion is best or do we still need to convince the person responsible that their decision to do nothing will likely lead to further harm?

My correspondent’s question referred to ‘a health care professional’.  We know that there are 15 registered health professions. In this discussion, given the subject matter of this blog, I’m going to start with paramedics and then talk about medical practitioners. 

This is in fact a complex question and there are multiple variables that need to be considered.  First we have to consider issues of consent. There are three possibilities 1) there is consent to treatment; 2) there is neither consent nor refusal and 3) there is a refusal of consent.

Second, we have to consider what role a person responsible is playing (and here I use the term to refer to a person on scene, whether in hospital or out of hospital and who is clearly with the patient and has a close and ongoing relationship with the patient, rather than as a legal term of art which I will come to later). When the person says ‘no’ to treatment that ‘no’ may mean one of three things. 

To explain that let me quote, again, Lord Goff from In Re F [1990] 2 AC 1.  In that case His Lordship was trying to identify the principle that justifies treating people who cannot consent (ie situation (2) in my list above). He rejected the notion of ‘implied consent’ and said, rather:

The principle is one of necessity, not of emergency.

… 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 circumstances take, acting in the best interests of the assisted person.

On this statement of principle, I wish to observe that officious intervention cannot be justified by the principle of necessity. So intervention cannot be justified when another more appropriate person is available and willing to act; nor can it 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. …

Two relevant factors are 1) ‘intervention cannot be justified when … it is contrary to the known wishes of the assisted person’ and 2) ‘the action taken must be such as a reasonable person would in all the circumstances take, acting in the best interests of the assisted person.’

When the person responsible (used in the non-technical sense) says ‘no’ to proposed treatment they may be telling the paramedics that the treatment is contrary to the wishes of the patient. The person who is there may well know the patient and what they want. The situation would be much easier if the patient’s wishes had been recorded in writing and in accordance with a relevant form provided for either in legislation (eg Medical Treatment Planning and Decisions Act 2016 (Vic); Advance Care Directives Act 2013 (SA)) or policy (in NSW see the NSW Health Consent to Medical and Healthcare Treatment Manual (Consent Manual) (2020) Section 6, Refusal of Treatment).  But in those states with legislation the common law continues to apply (see for example Medical Treatment Planning and Decisions Act 2016 (Vic) s 10) and in states without legislation (eg NSW) the relevant law is the common law. 

The common law does not require a refusal to be in specific form In Malette v Shulman (1990) 67 DLR (4th) 321.  Ms Malette was a Jehovah’s witness who carried a card saying she did not want a blood transfusion under any circumstances. The court said the treating doctor should have honoured that even though it meant she would have died.   Robins JA said:

I do not agree… that the Jehovah’s Witness card can be no more than a meaningless piece of paper. I share the trial judge’s view that, in the circumstances of this case, the instructions in the Jehovah’s Witness card imposed a valid restriction on the emergency treatment that could be provided to Mrs. Malette and precluded blood transfusions.

Robins JA found that she had:

… chosen in the only way possible to notify doctors and other providers of health care, should she be unconscious or otherwise unable to convey her wishes, that she does not consent to blood transfusion…

In today’s world, with the legislation in place a card is no longer ‘the only way possible to notify doctors’ of one’s wishes but it still doesn’t deny that if the patient’s wishes are known they should be respected. In NSW there is no legislation. As the Consent Manual says (at [6.2.1]):

There is no standard form or template for an ACD in NSW, although there are several documents in use, including a template available on the NSW Health website … An ACD does not need to be in a particular format and does not need to have been witnessed.

The card in the wallet is still sufficient in NSW.

To return to our scenario, the bystander person responsible may be communicating the patient’s wishes.  I think context is all important so one would want to consider the situation – if the evidence is that the patient is being cared for in a terminal stage of a terminal illness and this person is their carer one may be more confident that this is the person’s wishes.  If it’s an unexpected, acute illness the person speaking may have had discussions with the patient about their wishes in a general sense but they cannot know what their wishes are in an event that was not expected or anticipated.

Second then the person may be communicating something about the patient’s values. What is in a person’s best interests is not an objective issue. Different people have different interests and values and so they have to be considered when deciding whether the proposed treatment is ‘in all the circumstances … in the best interests of the assisted person’ (see Listening to the patient’s family (June 2, 2022)).

In these scenarios the person communicating with the paramedics may say ‘no’ to treatment but that’s not a definitive ‘no’. If there is any doubt (and given paramedics will not have either time nor (usually) history ie this will be the first time they’ve met the patient) then the presumption will be to treat the person. The paramedics do not ‘know’ the patient’s wishes and cannot at that point infer that withholding treatment is in the patient’s best interests.   I caution though, never say never, there may be circumstances and context where there is no doubt but let us put them to one side.

The third option is that the person is the ‘person responsible’ as defined by law – so now I use the term in its technical meaning. In NSW the concept is found in the Guardianship Act 1987 (NSW). Section 33A defines who is a ‘person responsible’ It is a hierarchical list, ie medical staff should work their way down the list and once they have identified a person responsible they don’t need to, in fact cannot, continue down the list to find everyone who  could be a person responsible. Section 33A says:

That hierarchy is, in descending order:

(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 can give (s 36) (and by implication refuse to give) consent to medical treatment but it’s not that simple. First before a person responsible can give consent they must be asked to give consent. The request must

… 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.

One can see that this list is relevant in a place of extended health care, but not in an out of hospital emergency where a patient has ‘an acute illness’ and I would suggest there is neither the capacity for paramedics to frame the request for consent in those terms, nor for the person responsible to consider all that information along with the factors listed in s 36(3) in order to make a decision.  If that’s correct if the person at the scene is the ‘person responsible’ (now using that term as defined in the Act) their statement ‘no’ cannot be a valid ‘consent’ (if consent includes ‘refusal of consent’) as the requirements in s 36 have not and I suggest cannot be met. If that’s the case we are back to the scenario of neither consent nor refusal of consent.

Section 37(1) says (emphasis added):

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.

Most paramedics are not medical practitioners.  A medical practitioner is a person registered with the medical board – a doctor. Further medical treatment is defined (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

Paramedics provide care without supervision of a medical practitioner – today they make their own diagnosis and treatment decisions.  It is my argument that s 37 does not apply to paramedics.  The point of s 37 is to allow doctors to treat people in hospital or other care facilities, without going through the process of getting consent from the person responsible, where the treatment is required as a matter of urgency.  It is not relevant in out of hospital emergency care.  (Though it could be made applicable if they changed it from ‘medical practitioner’ to ‘health practitioner’, but I digress).

But s 37 is not much different to the common law explained in In Re F above.  The only difference is that it is not clear whether this section could be relied on even when it is known that the treatment is against the wishes of the patient. The Act does not explicitly say what effect a prior refusal has, but NSW Health takes the view that the patient’s refusal remains binding. The Consent Manual says (at [6.2.3]:

Where there is a known, available, and valid ACD, it cannot be overridden in an emergency. The patient must only receive treatment that is consistent with the ACD. If a patient presents with an ACD or other document that refuses treatment, a copy of the document should be made and placed on the patient’s Health Record.

The NSW Health approach is that s 37 must apply in the second scenario at the start of this post – ie where there is neither consent, nor a refusal of consent.  Doctors (and dentists) can proceed with treatment even though they have no consent and provided the patient themselves has not made clear that they do not want the treatment.

Discussion

That is a very long exploration of the law to try to answer what looked like a simple question. To return to the question the scenario was:

Hi Michael, [NSW] in this case if the presentation of the patient lacks capacity due to an acute illness -meets the definition of emergency treatment but a person responsible says no.

Does a health care professional have a right to do in their clinical opinion is best or do we still need to convince the person responsible that their decision to do nothing will likely lead to further harm?

Paramedics

If we assume we’re talking about paramedics and an out-of-hospital emergency then:

The person who says ‘no’ is not giving a binding refusal. They may be giving important information to allow the paramedics to assess whether the proposed treatment is ‘contrary to the known wishes of the assisted person’ or would not ‘in all the circumstances’ be ‘in the best interests of the assisted person’. Those considerations are important in making a treatment decision, but they do not determine the matter. If in any doubt, and in the absence of written advanced care directive there is likely to be doubt (but remember the wisdom of ‘never say never’ and ‘context is everything’) then yes the paramedics as health care practitioners, based on the common law of necessity, may provide care that ‘in their clinical opinion’ is in the patient’s best interests and they do not need to convince ‘the person responsible that their decision to do nothing will likely lead to further harm’. In those acute out of hospital emergencies, the consent of the ‘person responsible’ cannot be obtained as it would not be possible to meet the requirements set out in s 36.

Medical Practitioners

The answer for medical practitioners in an in-hospital environment is the same save that they can rely on both the common law and the Guardianship Act s 37 to justify the emergency treatment.

The person responsible

The problem here is that practitioners understand about the notion of the person responsible as an alternative source of consent (ie alternative to the patient) and that’s correct.  But it’s not a simple process of ‘the patient’s incapable, can I find the ‘person responsible’?  First as indicated there is a hierarchical list.  Assume for example that a person collapses at home and paramedics attend. The person’s spouse has gone to the shops and the patient is at home with their adult child. The adult child is not the person responsible; the spouse is.

Second to obtain consent, or to allow a person responsible to refuse consent, the process set out in s 36 is to be followed.  That probably cannot be done on the street where diagnosis and prognosis are yet to be confirmed.

The idea of getting consent from the person responsible relates to non-urgent care.  In the case of life-saving care, the common law and s 37 say give the treatment required. 

In the absence of the Guardianship Act, long term care would also be based on the health practitioner’s assessment of the patient’s best interests. Remember that the doctrine identified in In Re F was necessity and not emergency. Lord Goff gave examples of when the principle might apply. He said:

Take the example of an elderly person who suffers a stroke which renders him incapable of speech or movement. It is by virtue of this principle that the doctor who treats him, the nurse who cares for him, even the relative or friend or neighbour who comes in to look after him, will commit no wrong when he or she touches his body.

The Guardianship Act provides that the doctor can look to the person responsible, the person that best knows the patient and their wishes and values, to confirm that treatment should or should not be given. It moves away for medical paternalism, but it doesn’t apply if the patient’s about to die. The doctors don’t have to delay lifesaving care to go through the process in s 36. But if there have been advanced care directives, and treatment decisions made, they should be honoured.

Conclusion

For paramedics the statement that the ‘person responsible’ can consent or refuse consent to emergency care is not well founded. A paramedic will not be able to identify the person responsible nor (usually) will they be able to go through the process required by s 36 to obtain consent. That does not mean that the person at the scene does not have relevant information to give to help inform the paramedic’s decision making and to ensure that they are making a patient centred decision. It remains the case that treatment should not be given to a person who cannot communicate their wishes where the treatment is contrary to the patient’s known wishes or not in the patient’s best interests.  The person at the scene can information relevant to those factors, but if the paramedic has any doubt, and in the absence of a written ACD (noting there is no prescribed from in NSW) then paramedics and doctors can provide treatment that, in their clinical opinion is in the patient’s best interests.  They do not need to convince the bystander – even if they are the person responsible – that a ‘decision to do nothing will likely lead to further harm’.

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.