Today’s question raises the dilemma of first aiders withholding resuscitation but this time where the patient is a child. My correspondent asks:

One of our trainers had a question from one of their students during a training course … The question is “What are the legalities for a first aider if they commence CPR on a child (someone under the age of 18) and the parents are stating that they do not wish for CPR to be commenced on their child?”

The starting point is that consent is a pre-requisite to allow anyone to touch anyone else (Collins v Wilcock [1984] 3 All ER 374).  Consent is not required in an emergency (Rogers v Whitaker (1992) 175 CLR 479) but for that doctrine to apply it ‘there be a necessity to act when it is not practicable to communicate with the assisted person’ (In Re F [1990] 2 AC 1). 

It is not practicable to communicate with a patient in cardiac arrest, but it is, in the context of the question, practicable to communicate with the child’s parent.  The parents of children have responsibility for determining the child’s best interest and for consenting to or refusing consent to medical treatment (Marion’s case [1992] HCA 15; see also for example Minors (Property and Contracts) Act 1970 (NSW) s 49)).  

Although a competent adult ‘… is free to decide whether or not to submit to treatment recommended by the doctor… the patient is entitled to reject the advice for reasons which are rational, or irrational, or for no reason’. (Sidaway v Bethlem Royal Hospital [1985] AC 871; see also PBU & NJE v Mental Health Tribunal [2018] VSC 564, Malette v Shulman (1990) 67 DLR (4th) 321)). When it comes to children an adult decision maker must be guided by consideration of the patient’s best interests rather than giving consent for their own or someone else’s best interests (Marion’s case [1992] HCA 15).

For a person to be capable of giving a valid consent (Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112; In Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290) they must be competent; that is they must be able to:

1. take in (and comprehend) and retain the treatment information,

2. believe that information, and

3. weigh that information, balancing risks and needs.

With that information we can answer the question.

Prima facie if the parents withhold consent for treatment, then treatment without that consent would be an assault. But that simple scenario begs several questions.

First, are the parents competent?  Competency is relevant at a specific time and for a specific decision. The parents may normally be competent but if their child is in cardiac arrest they may – at that point – not be competent. For example, if a parent is nursing their dying child and is unwilling to let the child go to allow CPR to be performed, maybe they are so overwhelmed by grief that they cannot ‘take in’ what is being said when those around are urging the parent to let go and let others provide care.

Second, are they acting in the child’s best interests?  This may be uncontroversial if the child is suffering from a life limiting illness and their death was expected. In this case there may be documented DNR orders. The counter example is the child in need of CPR because of an attempt by a parent to smother the child.  In that scenario, the parent is clearly not acting in the child’s best interests.

Finally, there is the practical issue of whether it would be possible to perform CPR or if the parent will physically stop the first aider.  If you cannot access the patient or the parent is going to resist with force, then a first aider will not be able to perform CPR regardless of the legalities.

Risk assessment

We can conduct a legal risk assessment.  A first aider is not under a duty to assist.  If they do not perform CPR because the parents have refused, the child will die.  The cause of the child’s death will be whatever caused them to be in cardiac arrest. The first aider is under no duty to commence CPR so can face no legal issues for not performing CPR. The responsibility for the decision to withhold CPR will fall to the parents in the same way that a person is responsible for the outcome if they refuse their own treatment (Neal v Ambulance Service NSW [2008] NSWCA 346; Malette v Shulman (1990) 67 DLR (4th) 321)).

If you do perform CPR when the parent’s object there is a very small risk that someone may see that as a legal issue. Where the patient was at the end stage of a terminal illness and the parents in consultation with their medical practitioners had determined that CPR was not to provided, and where that is clearly communicated it would be both unlawful and unethical to provide CPR.

In unexpected emergencies, eg drowning or a motor vehicle accident, no court would be critical of an attempt to save a child’s life even in the face of a distraught parent saying ‘no’.  The question would be are they saying ‘no’ to CPR or ‘no’ to the situation they now face?

Remember too that first aiders would enjoy the benefit of good Samaritan legislation (except in Queensland) and provided their actions are in ‘good faith’ ie they have considered the nature of the parent’s statements and are not confident that the decision is being made by a person who is at that moment competent and acting in the child’s best interest, then there is no liability even if that assessment was wrong.

Conclusion

The law is unlikely to ever get involved in the scenario described. The fundamental principle is that it is the parents who consent to care for their children. If a parent refuses consent then treatment should be withheld in the same way that it would be withheld if a person refuses consent for their own treatment. When it comes to children however the parent’s decision must be motivated by the child’s best interests so if the decision is not in the child’s best interests then it may not be lawful. It is beyond a first aiders’ capacity to determine that issue. A first aider may be able to consider whether, at that moment, the parent is competent to make the decision. 

There is no legal obligation to provide CPR particularly if the parent of the child is physically able and prepared to prevent the first aider having access to the child.

The answer to today’s question will ultimately depend on the circumstances of each case – context is everything.

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.