Today’s correspondent writes:
I’m a paramedic within Victoria and my question relates to the capacity of a patient to refuse medical treatment and/or transport to a medical facility if intoxicated. At what point is the patient unable to refuse when the patient has consumed alcohol? How do we as paramedics decide if a patient’s intoxication is at a level that affects their competence?
A person’s right to refuse treatment does not decrease or disappear because they are intoxicated, but their capacity may. A person has decision-making capacity if they are able to understand the nature of the suggested treatment, weigh up the consequences of and communicate his or her decision (In Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290; Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112, 169). If they can’t do those things, for whatever reason, then they lack relevant competence and treatment that is reasonably necessary and in their best interests can be given (Re F [1990] 2 AC 1])).
In Neal v Ambulance Service of NSW [2008] NSWCA 346:
Mr Neal (the plaintiff) suffered a serious blow to the head whilst walking alone on the streets of Hamilton, near Newcastle. He was discovered by police, who called an ambulance. He rejected assistance from the ambulance officers and, being clearly inebriated, was taken into custody by the police … ([2], Basten J).
Mr Neal’s injuries were much more substantial and he:
… suffered a variety of ongoing disabilities following the assault. Some, he accepted, were caused solely by the blow to the head. However others, particularly a right-sided weakness (hemiparesis), were said to have flowed from the failure to take him to hospital when he was discovered in the street by the police. He brought proceedings in the District Court for negligence against the State (as responsible for the negligence of the police) and the Ambulance Service of New South Wales (“the Ambulance Service”)…’ ([4], Basten J).
His claim against the Ambulance Service related to their failure to advise the police that they could not examine him or treat him as he was refusing their assistance, but the police, on taking Mr Neal into custody under the Intoxicated Persons Act 1979 (NSW) (now repealed) should take him to hospital. In the Court of Appeal Basten J (with whom Tobias JA and Handley AJA agreed) said:
The ambulance officers gave evidence that, in the circumstances, they could not examine or treat the plaintiff or take him to hospital, without his consent. They clearly did not have his consent. Although there was a case run at trial that greater efforts should have been taken to obtain his consent and carry out a more complete investigation, her Honour rejected that complaint and it was not reagitated on appeal. ([16], Basten J).
(What – “there was a case run at trial that greater efforts should have been taken to obtain his consent and carry out a more complete investigation, her Honour rejected that complaint and it was not reagitated on appeal” – means is that it was argued in the original case that the paramedics should have done more to get consent but that argument was lost, that is the trial judge found no fault in that regard, and the plaintiff/appellant did not argue, in the Court of Appeal, that this finding by the original judge was wrong).
Critically, then, no-one tried to argue that Mr Neal was not competent to refuse consent or that treatment should or could be given without his consent. Even though he was ‘clearly inebriated’ his right, and his capacity, to refuse treatment remained. (The Court of Appeal found there was no liability in this case because even if the paramedics had advised the police that they had been unable to examine Mr Neal but, in their view, he did need assistance and even if the police had transported him to hospital rather than the police cells, the evidence showed that Mr Neal would have also refused treatment at the hospital so the outcome would have been the same. The court did not have to decide whether or not the paramedics had a duty to inform the police, or whether there failure was negligent, as it would not have made any difference, that is any alleged negligence was not the cause of Mr Neal’s disabilities.)
So the unhelpful answer to the first question – At what point is the patient unable to refuse when the patient has consumed alcohol? – is when their level of intoxication means that they are unable to understand the nature of the suggested treatment, weigh up the consequences of and/or communicate their decision. That does not mean that they are making a decision that is not in their best interests; if they can understand your advice that they should go to hospital, that they have suffered an injury that needs attention, if they can in fact consider that and weigh it up against their competing desire to keep drinking, or go home, or do whatever else they want to do, and they can make that clear to you, then they retain their competence.
The second question is ‘How do we as paramedics decide if a patient’s intoxication is at a level that affects their competence?’ That is a clinical question and needs to be answered by the relevant clinicians in the Ambulance Service. Surprisingly the Ambulance Victoria Clinical Practice Guidelines (http://www.ambulance.vic.gov.au/Paramedics/Qualified-Paramedic-Training/Clinical-Practice-Guidelines.html) do not appear to mention ‘consent’ at all. CPG A0106 Mental Status Assessment describes ‘a systematic method used to evaluate a Pt’s mental function’ but doesn’t add any detail on what the implications of that assessment are. The Guidelines therefore give no assistance in answering this question or how to assess capacity generally (see Steer, B. (2007) ‘Paramedics, consent and refusal – are we competent?’ Australasian Journal of Paramedicine 5(1) (http://ro.ecu.edu.au/jephc/vol5/iss1/4)).
In the absence of clinical guidance, paramedics need to apply their own judgment remembering that their duty is not to treat and save everyone, but to treat people in accordance with fundamental ethical principles which include the right of people to make their own choices. As Steer says (p 4)
… in the face of a valid refusal, the duty of care of the paramedic is not independent of the will of the competent patient – the paramedic’s duty is not absolute, but is limited by the patient’s will and their understanding of what is in their overall best interests, medical and otherwise. Not all interests are medical in nature – ‘best’ is not just a physiological qualifier. Thus, autonomy is always a moral concept; beneficence is sometimes a medical concept. Hence paramedics attend persons, not just patients, and in Australia belong to the appropriately named Ambulance Service, not Ambulance Force…
Therefore do not assume that just because a person is intoxicated, or just because they appear to making an unwise decision, they are incompetent. One needs to carefully consider whether the person is able to understand the nature of the suggested treatment, weigh up the consequences of and communicate their decision. Further, if they are refusing treatment is their refusal informed and does it cover the situation that has in fact arisen? (Re T [1992] 4 All ER 649). In Re T, Staughton LJ said (at 669)
The notion that consent or refusal of consent may not be a true consent or refusal presents a serious problem for doctors. … The surgeon will be liable in damages if he operates when there is a valid refusal of consent, and liable in damages if he fails to operate in accordance with the principle of necessity when there was no valid decision by the patient.
A similar dilemma may exist for paramedics who may be held to account (though as employees, they are will not be personally liable) if they impose treatment upon a person who has refused consent; or fail to treat a person when there is no valid refusal. Facing these dilemmas and accepting that it will in many cases come down to an exercise of professional judgment is part of what it is to practice as part of a ‘profession’. The relevant legal precedent, Neal’s case, did not doubt that an intoxicated person may refuse consent; it’s now up to you to decide if they have, and if they are competent to do so.
Australian Emergency Law 
Michael, I have a curly question for you. I am a very experienced paramedic, currently working in a remote capacity in remote Western Australia. On my time off I volunteer for the local state ambulance service. I have been told in no certain terms that when I work on the volunteer ambulance that my ALS skills “magically” disappear.
In the ambulance we do have ALS equipment, but I have been told I am not allowed to use it. This is my question, where do I stand if I get a patient who needs ALS support and we are remote without any close ALS support, if the patient has a poor outcome on account of no ALS intervention , where do I stand if the relatives find out that a ALS paramedic was in the back with the patient, but did not use their skills. Can I be hold liable??
Cheers,
Mike
Thanks for this question; I thought it needed its own post so you can see my answer at https://emergencylaw.wordpress.com/2014/04/05/als-paramedic-as-volunteer-with-st-john-wa/
These comments were received by email:
1. I would be wary of saying if a patient refuses paramedics and police, then they will refuse in ED. How can I know that? People refuse, and recall, then refuse and self transport, they also consent then refuse in ED. We know patients are less likely to refuse to go if their doctor persuades them. I realize that this intoxicated assault patient is a different kettle of fish, but the point remains that I cannot know what they will or will not do in ED.
2. I always thought that we were responsible for our intoxication. We know excess alcohol leads to more domestics, more assaults, more accidents etc. I would have thought that if a person is drug or alcohol affected then they need to take responsibility for being impaired in decision making. If this person was assaulted and head injured, then they may not be responsible for being assaulted, (then again, they may, in fact some definitely are), but they are responsible for putting themselves in a situation where if something happens they cannot make sensible judgments. So at a simple level I am not sure how an ambulance service is responsible when they are dealing with a person who has made themselves irresponsible.
I think most ambos do not like the responsibility of steering their way between negligence and assault for patients who have made clear choices which impair their decision making capacity. I guess my own view is that the ground or threshold shifts (and should shift), especially in the face of the head injured intoxicated patient. Paramedics are simply not in the position to accurately assess how dynamic or unstable or ill these patients are, and because of their decision to be substance affected, life should take priority over the freedom to choose. One right may be lost (temporarily) by being taken to ED, but all rights are lost (permanently) if life itself is lost.
I guess the law does not consider the educative and disciplinary function of being taken to ED, it is all about right and duties, but I know it is a process that can help the young especially get back on track. I often take people to ED to keep them safe and supervised, even if there is no treatment, ED just let the liver do it’s thing. The ‘happy’ drunk can still aspirate and die if left alone.
I can understand a paramedic being wary that a person who refuses at the scene may not refuse at the ED but in the contect of Neal v Ambulance, the court found that was indeed the case and courts have to make judgments in these matters and one can infer the judge wanted to find no liability. The paramedics were stuck, he had refused treatment. He may have changed his mind at hospital but that was irrelevant to them, they couldn’t treat or transport. The argument was that police could but as I say, the court has to make a decision and has the luxury of time and evidence to weigh that up.
As for intoxication, people get health care even if they have created their own health problems. An ambualnce service is not responsible for people who are intoxicated, but it is responsible for the actions of its own officers and they have to act reasonably. Just because a person is intoxicated it does not mean they are not entitled to reasonable care. Parliaments, particularly NSW, have moved to make alcohol a ‘strict liability offence’ (ie most offence require proof of some relevant criminal intent, or negligence, or indifference, but if you are drunk the need to prove that is getting less so now we have the situation that if you are drunk and hit someone causing their death, you get a higher penalty than if you are sober, and I think a sober person who kills someone is actually more of a ratbag than a drunk).
Are paramedics there to save lives or to act to advance patients’ interests that include their interest in autonomy? IF one thinks a patient is not actually capable of making a decision to refuse treatment then they can be treated in accordance with necessity and provided the decision is both made in good faith (ie honestly considering the patient’s circumstances not ‘I’ll do this to protect my own back side’) and reasonably (there are reasons to justify the conclusion) then I would not anticipate any liability even if later, it was held that the patient was competent.
Equally in Neal’s case there was no suggestion that the paramedics should have transported the patient that had refused treatment and assistance.