This post began with a question of:

How can a Victorian MICA paramedic refuse to listen to a patient’s wishes not to go to hospital if the patient is fully aware of the consequences and the primary carer/next of kin/eldest child does not want patient to go to hospital? How is this possible?

Further details revealed that a resident of a residential aged care facility (RACF) was in pain. The staff called an ambulance as they were limited to giving paracetamol.   I’m told

Her doctor had made arrangements to see a specialist in the next week. This happened [on a] Saturday. She just needed pain relief for the weekend and her doctor would have seen her in the next couple of days.

Paramedics arrived and recommended transfer to hospital. Both the patient and her son indicated that she did not want to go even though the treating paramedic advised ‘she could die’ but ‘Mum knows this and it’s her right’.

The story continues:

Because I was going off my head as he didn’t care about [the] patient and my decision he got the aged care facility to call the police. I left before they arrived and she must of been given Fentanyl as she cannot remember anything after I left.

The patient was indeed transported to hospital but later discharged herself.

Consent

It has been said on this blog and often that

• The fundamental principle, plain and incontestable, is that every person’s body is inviolate (Collins v Wilcock [1984] 3 All ER 374); and
• … all medical treatment is preceded by the patient’s choice to undergo it (Rogers v Whitaker [1992] HCA 58).

Treatment and transport in the face of a competent patient’s refusal is unlawful and may constitute a tort of assault and/or false imprisonment.

That of course requires an assessment of a patient’s competence. Relevant questions (Re C (adult: refusal of medical treatment) [1994] 1 All ER 819) are:  

• Does the individual have the ability to comprehend, and retain, the information they are given about the treatment (its nature, purposes, and consequences)? 
• Do they have the ability to believe that information? and
• Do they have the ability to weigh the information in the balance, so as to arrive at a choice?

(See also Medical Treatment Planning and Decisions Act 2016 (Vic) s 4 and Mental Health and Wellbeing Act 2022 (Vic) s 87).

Another issue to be considered when considering a person’s stated refusal is ‘are they subject to undue influence?’ In In Re T (Adult: Refusal of Treatment) [1992] EWCA Civ 18 Donaldson MR said (at [31]):

A special problem may arise if at the time the decision is made the patient has been subjected to the influence of some third party. This is by no means to say that the patient is not entitled to receive and indeed invite advice and assistance from others in reaching a decision, particularly from members of the family. But the doctors have to consider whether the decision is really that of the patient. It is wholly acceptable that the patient should have been persuaded by others of the merits of such a decision and have decided accordingly. It matters not how strong the persuasion was, so long as it did not overbear the independence of the patient’s decision. The real question in each such case is “Does the patient really mean what he says or is he merely saying it for a quiet life, to satisfy someone else or because the advice and persuasion to which he has been subjected is such that he can no longer think and decide for himself?” In other words “Is it a decision expressed in form only, not in reality?”.

It is probably a common experience that people benefit from an advocate in the health care setting. It follows that the presence of a competent person’s son asserting that their parent does not want transport should not be seen as overriding or dominating. The question to be considered is ‘is the son legitimately advocating for, and expressing the patient’s wishes or are they overriding the patient?’ As Staughton LJ said (at [57]) ‘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.’

One cannot say what was going on in this case though my correspondent is adamant that there was no undue influence, and his role was to advocate for and confirm the wishes that his mother was also expressing. If the patient was competent and the views being expressed by her, and by her advocate on her behalf were truly her views, then she is entitled to refuse treatment and transport ‘even in circumstances where she is likely or even certain to die in the absence of treatment’ ([54]). ‘A decision to refuse medical treatment by a patient capable of making the decision does not have to be sensible, rational or well-considered’ ([39] Butler-Sloss LJ) and ‘ it matters not whether the reasons for the refusal were rational or irrational, unknown or even non-existent’ ([37] Donaldson MR).

If the patient is not competent

If the patient is not competent then care that is reasonably necessary and in the patient’s best interests can be delivered (In Re F [1990] 2 AC 1).  In Victoria, if a health practitioner (which includes a paramedic) is planning to administer health care to a person who cannot give consent they must obtain consent from a medical decision maker (Medical Treatment Planning and Decisions Act 2016 (Vic) s 58).  The list of potential medical treatment decision makers is set out in s55. They are, first, a person’s appointed medical treatment decision maker. If there is not appointed decision maker a guardian has been appointed by VCAT. If there is not appointed decision maker or guardian, then the following may make a medical treatment decision. The list is in order of priority so it should be worked through until a relevant person is found:

1. The patient’s spouse;
2. The primary carer;
3. An adult child;
4. A parent; then
5. An adult sibling.

That is of course, not relevant if the patient is competent. Where the patient is competent then it is the patient’s decision that is relevant though a patient may take advice or counsel from anyone they like and may benefit from an advocate who can speak on their behalf or assist them to assert their decision.

An appropriate use of ambulance resources?

What is troubling in this story, and which almost pre-ordains the outcome, is that the RACF called an ambulance because they did not have staff that could administer relevant pain medication nor did they have access to a medical practitioner that could assess the patient, make a diagnosis and prescribe treatment.  Presumably the RACF is charging to provide care but is calling upon a state supplied emergency service to fill a gap in its own service provision.

A RACF is required to provide nursing services (Quality of Care Principles 2014, sch 1, item 3.8, made under the Aged Care Act 1997 (Cth)) which include:

Initial assessment and care planning carried out by a nurse practitioner or registered nurse, and ongoing management and evaluation carried out by a nurse practitioner, registered nurse or enrolled nurse acting within their scope of practice.

Nursing services carried out by a nurse practitioner, registered nurse or enrolled nurse, or other professional appropriate to the service (for example, medical practitioner, stoma therapist, speech pathologist, physiotherapist or qualified practitioner from a palliative care team), acting within their scope of practice.

Services may include, but are not limited to, the following:

(a) establishment and supervision of a complex pain management … including monitoring and managing any side effects;

The facility is also required (sch 1, item 2.7) to have in place ‘[a]rrangements for … medical … and other health practitioners to visit care recipients …’  Relying on Ambulance Victoria to fill those gaps on a Saturday night seems, prima facie, to be remiss.

What could the paramedics do?

Ambulance Victoria paramedics cannot prescribe pain relief, they can administer pain relief but only in accordance with their clinical practice guidelines (CPGs).  CPG A0501-1 deals with pain relief.  Relevantly, the CPG identifies options for ‘moderate pain’ and ‘severe pain’.   Paracetamol is a standard drug but it may be supplemented by intravenous (IV) opioids, intranasal (IN) Fentanyl or Ketamine, intramuscular (IV) morphine, or inhaled methoxyflurane.   For severe pain ‘Opioids + Ketamine is the preferred approach to managing severe pain’.  Patients who are:

… managed with methoxyflurane, fentanyl, morphine, or ketamine, require on-going pain assessments as well as monitoring for side effects.

At a minimum, observations must be undertaken and documented every 15 minutes…

Minimum repeat assessments in the context of moderate-to-severe pain include:

• Airway patency
• RR, SpO2, HR, BP
• Sedation Assessment Tool (SAT) Score   

Discussion

I was asked:

How can a Victorian MICA paramedic refuse to listen to a patient’s wishes not to go to hospital if the patient is fully aware of the consequences and the primary carer/next of kin/eldest child does not want patient to go to hospital? How is this possible?

I of course cannot comment on exactly what happened, but I can hazard some thoughts. First, I can imagine, given the scenario described, that the paramedics were concerned for the patient’s welfare. They had been called because the patient was in pain but there was little they could do.  They could, with the patient’s consent, administer various drugs but if they administered anything other than paracetamol their CPG said they were compelled to continue monitoring the patient. They may have been unwilling to offer drugs and then leave the patient. On the the other hand, the patient could consent to the administration of pain relief and then refuse consent to transport. And the patient was in an RACF presumably there were nurses there who could monitor the patient if required. As fellow health professionals there was a duty on the paramedics to work with the nurses to see what they could offer in the patient’s best interests.

Conclusion

How is this outcome legally possible?   Clearly, I won’t say it was legally permissible, I don’t have enough facts and this is not a place for legal advice.  But I can suggest some factual situations where it might be legal –

• Paramedics are called to a person with unmanaged pain; they have limited options and what is more, from the conversation we can infer that they had genuine concerns for the patient’s safety (hence ‘you might die’).
• A competent patient is free to reject treatment at any time but there may have been a fear that they were hearing from the son, rather than the patient so they took steps to ensure that they could have a private conversation with their putative patient
• In that conversation the patient may have decided to accept treatment and transport particularly if the paramedics took the view that they could not administer pain relief and leave the patient because of the need for continual monitoring so it may have been an option of ‘accept pain relief and transport, or there is nothing we can do’.  And given that option she may have given consent.

I don’t know if any of that happened but if it did then one can understand how this outcome was both ‘possible’ and legally justified.

If, on the other hand, the patient maintained her stance that she did not want transport to hospital and was either ignored or overridden by paramedics that would, from a legal perspective, be a very different matter.

What it shows (and what I try to teach law students) is that in most cases the law is not the issue – a competent person can refuse treatment and that must be respected.   What is in issue is the facts. Exactly what happened? Who said what? How was that interpreted and understood? What was ‘reasonable’ in the circumstances?  Answers to those questions cannot be taken from one perspective. Two people in the same room observing the same event may have very different understanding of what happened.  Answering the question ‘what happened’ requires forensic analysis of evidence and listening to everyone involved.  That is not something we can do here.

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.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.