Today’s question again addresses the issue of treatment without consent.  My correspondent is:

… a QAS Paramedic and for a while now I have been hearing of paramedics transporting patients to hospital who lack capacity (usually intoxicated), not under an EEA, but under ‘guardianship’. I speak specifically about people who would normally have capacity, (and not as requested by a legally appointed guardian) requiring medical assistance or a place of safety.

What’s more, I am hearing nurses at hospital recommend this course of action instead of an EEA. 

It was my belief that under the Guardianship Act (QLD) there is no power for QAS to transport such a person unless there is a legally appointed guardian who directs said transport.  In other circumstances, an EEA is required.

I do note however that the ‘Guardianship and Administration Act 2000 -Part 2 – Scheme for Health Care and Special Health Care’ on page 66 appears to outline that healthcare that can be provided without consent.

Further relevance to prehospital care, appears to be under 63 ‘Urgent health care’. This section appears to relate to adults who present with impaired capacity for the health matter concerned and appears to specifically refer to persons as adults, not the previously discussed persons under a guardianship.

Additionally, the QAS CPM cites this section in the concluding paragraphs relating to assisting individuals who are deemed to have impaired capacity. 

Could this be a provision for transporting such a patient under this act?

EEA’s are discussed in earlier posts see

The Guardianship and Administration Act 2000 (Qld) s 63(1) says:

(1) Health care … of an adult may be carried out without consent if the adult’s health provider reasonably considers—

(a) the adult has impaired capacity for the health matter concerned; and

(b) either—

(i) the health care should be carried out urgently to meet imminent risk to the adult’s life or health; or

(ii) the health care should be carried out urgently to prevent significant pain or distress to the adult and it is not reasonably practicable to get consent from a person who may give it under this Act or the Powers of Attorney Act 1998.

Health care of an adult is defined (sch 2, cl 5(1)) to mean

… care or treatment of, or a service or a procedure for, the adult—

(a)            to diagnose, maintain, or treat the adult’s physical or mental condition; and

(b)           carried out by, or under the direction or supervision of, a health provider.

A health provider is (sch 4) ‘a person who provides health care, or special health care, in the practice of a profession or the ordinary course of business’.  That would include a paramedic employed by QAS.  The section goes onto say:

(2)            However, the health care mentioned in subsection (1) (b) (i) may not be carried out without consent if the health provider knows the adult objects to the health care in an advance health directive.

(3)            However, the health care mentioned in subsection (1) (b) (ii) may not be carried out without consent if the health provider knows the adult objects to the health care unless—

(a) the adult has minimal or no understanding of 1 or both of the following—

(i) what the health care involves;

(ii) why the health care is required; and

(b) the health care is likely to cause the adult—

(i) no distress; or

(ii) temporary distress that is outweighed by the benefit to the adult of the health care.

In short, the section would allow (as the common law doctrine of necessity would allow) treatment to be given to a person who is not capable of giving consent where that treatment is required urgently to deal with their condition. This is likely to cause any particular issue where the patient is unable to communicate their wishes. It will be an issue of the patient appears to refuse consent.

The first question is what is ‘urgent’.  Urgent does not mean convenient or even ‘in the patient’s best interests (Murray v McMurchy [1949] 2 DLR 442).

Next, the section does not allow for the delivery of treatment that the patient has refused.  Just because is making an unwise decision it does not mean that they are not competent nor does it mean they meet the criteria in s 63(3)(a) above, that is they might well understand what the care involved and why it’s required and still say they don’t want it.  They might be able to do that even if they are intoxicated or mentally ill. If they do understand what the care involves and why it is required and still refuse that care, then they are entitled to do so. 

Section 63 is however relevant in many cases that would typically face paramedics.  A pedestrian hit by a car and rendered unconscious can be treated.  A person with hypoxic brain injury, a person suffering an overdose of drugs. Circumstances that paramedics face all the time. Where a person is in need of urgent care but who cannot consent then that treatment can be given.

Proudly supported by (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 these supporters.

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.