A Queensland paramedic writes to discuss end of life directions.  I’m told:

When attending a patient as a paramedic, particularly ones who are sick or approaching end of life, I almost always ask if they have either a Statement of Choices, Advanced Health Directive or an Advanced Resuscitation Plan. If they don’t, I ask them what their wishes are if things were to suddenly go down hill. In recent training and with our Clinical Practice Manual update, there is a section that outlines the different documentation and whether they are a legal document, or as a guide to discussion (link – https://www.ambulance.qld.gov.au/__data/assets/pdf_file/0024/219084/CPG_Palliative-care.pdf ).

My question is, if the patient has capacity and competence at the time of my assessment, and they state that they do not wish for any life sustaining measures should they go into cardiac arrest (yet they don’t have any of the documentation as mentioned above), do I, or do I not, resuscitate?

The fundamental principle, plain and incontestable, is that every person’s body is inviolate’ (Collins v Wilcock [1984] 3 All ER 374, p. 378). A person has the absolute right to determine what medical treatment they receive or don’t. 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’ (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. The Powers of Attorney Act 1998 (Qld) s 39 says:

This Act does not affect common law recognition of instructions about health care given by an adult that are not given in an advance health directive.

(See also Medical Treatment (Health Directions) Act 2006 (ACT) s 6; Advance Personal Planning Act 2013 (NT) s 89; 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).

The Clinical Practice Guideline on Palliative Care that I have been referred to, above, says (emphasis in original):

Patient’s wishes

The ambulance clinician must also ascertain the patient’s wishes with respect to ambulance treatment and transport.

If the patient can communicate effectively and has the requisite decision-making capacity to make decisions regarding treatment and transport, consult directly with the patient and obtain the patient’s consent before any treatment and/or transport is provided.

Those principles apply at all times, not just with patients in palliative care.

There are issues of competence and informed refusal to be considered but if the patient is sick and are familiar about their disease and its expected progression, or are terminally ill and perhaps going to palliative care there would be no reason to doubt that they understand their circumstances and know what they want and the implications of what they are saying.  Our dignity is most enhanced, and issues of respecting patient autonomy most relevant when the decisions have serious consequences.  There is no point respecting a patient’s wishes when it doesn’t matter but refusing to do so when it does. 

The statement in the CPG (referred to above) that a ‘Statement of Choices’ document is not a ‘legal document’ makes no sense to me.  It may not be provided for in legislation but that does not mean it does not have effect.  In Malette v Shulman (1990) 67 DLR (4th) 321 both Dr Shulman and then the court had to consider the effect of a card indicating that Ms Malette did not want a blood transfusion.  The judge, Robins JA said

I do not agree … that the Jehovah’s Witness card can be no more than a meaningless piece of paper. … 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. … [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…

A statement of choices may not be referenced in legislation but neither is it a ‘meaningless piece of paper’. To the extent it communicates a patient’s wishes it needs to be respected.

Conclusion

Glossing over issues of determining the patient’s capacity and the extent to which their stated wishes reflect an understanding of their current condition, in simple terms if a patient has capacity and competence to make a decision and they do so with understanding of the consequences then their wishes should be respected if the very circumstances that were being discussed, in this example cardiac arrest, occurs.  If you’re not going to honour their decision there’s not point asking.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.