Recently, two Victorian paramedics determined that a person involved in a motor vehicle accident was dead when that was not the case.  Rescuers later determined that the victim was still alive, paramedics were recalled and he was treated and transported to hospital.

In a report appearing in The Age on April 15 2012 (Jill Stark, “Erring paramedics ‘vilified’”) it is said ‘Changes brought in in 2009 mean paramedics now have legal power to declare patients dead, whereas previously it was a doctor’s responsibility’.

It is unclear what that means or refers to.  The relevant legal provisions are in the Births, Deaths and Marriages Registration Act 1996 (Vic), the Coroners Act 2008 (Vic) and the Human Tissue Act 1982 (Vic).

Section 37 of the Births, Deaths and Marriages Registration Act provides that a person’s treating doctor or a doctor who ‘examines the body of a deceased person after death’ must report the fact of the death and the cause of death to the Registrar.  A form setting out the information that must be included is provided for in the Births, Deaths and Marriages Registration Regulations 2008 (Vic) s 8.

A doctor must also report a death to the coroner if the death is a reportable death (defined in s 4) which includes a death where a certificate under s 37 of the Births, Deaths and Marriages Registration Act has not been signed because the doctor concerned cannot determine the issues that must be determined, in particular what caused the death.

There is nothing in either of these Acts that refers to ambulance officers or paramedics.

The Human Tissue Act is concerned with taking human tissue for donation.  Where it is intended to take tissue after death and ‘the respiration or the circulation of the blood of the deceased person is not being maintained by artificial means’ then their death must be certified by a doctor.  Where artificial means are being used to maintain the respiration or circulation, certification by two doctors is required (Human Tissue Act 1982 (Vic) s 26(7)).

The Human Tissue Act defines death, for the purposes of all Victorian law.

For the purposes of the law of Victoria, a person has died when there has occurred-

(a)  irreversible cessation of circulation of blood in the body of the person; or

(b)  irreversible cessation of all function of the brain of the person.
(Human Tissue Act 1982 (Vic) s 41).

Again the Act makes no reference to ambulance officers or paramedics.  So what is the basis for the claim that ‘paramedics now have legal power to declare patients dead’?   The reality is that a declaration of ‘death’ is not formally required. What is required is notification to the coroner or the Registrar, or both, that a death has occurred and if possible, the causes of that death.  It is still the case that only a doctor can do that.

Where a person is obviously dead, where their decomposed or dismembered body has been located, there is no requirement to find a doctor to certify that they are dead or to pretend to perform life saving measures until then.  The police who find the murder scene can pretty accurately determine whether or not the victims are dead or not.  Eventually they will be subject to an autopsy to confirm the cause of death, but the reality of death, that is that they have an ‘irreversible cessation of circulation of blood’ or an ‘irreversible cessation of all function of the brain’ may be pretty obvious.

It may also be clear when a person is not dead.  A person with a pulse and a respiration rate ‘of  less than six breaths per minute’ may be close to death, but they are not dead.   Failure to determine that a patient with a pulse is in fact alive has nothing to do with the law, and everything to do with appropriate professional practice and competency.

In other cases death may not be obvious.  This is why, where a person’s circulation and respiration are being artificially maintained, two doctors are required to certify death before steps can be taken to harvest their organs for transplantation.  Where a person has collapsed and bystanders have started CPR it will not be clear whether the cessation of circulation is irreversible or not.  The best option is of course to treat them as if their circulation can be restarted but at some point, the decision has to be made whether to continue with treatment or not.  This was usually the call of doctors and perhaps that is what the author in The Age meant.  Without being able to access the treatment protocols of Victoria’s ambulance services, I infer that what is meant is that paramedics, having completed their treatment protocols, could cease further treatment if the patient failed to respond so the inference could be made that their cessation of circulation was irreversible and they were, in fact, dead.

If that is the case I would quibble whether that was in fact the creation of a ‘legal power to declare patients dead’.  It may be overly pedantic, but I would note that no law says that paramedics can declare a patient dead and they cannot do so for the purposes of either the Births, Deaths and Marriages Registration Act 1996 (Vic), the Coroners Act 2008 (Vic) or the Human Tissue Act 1982 (Vic).   If, as I infer, paramedics can terminate treatment that is not efficacious with the conclusion that the patient is dead, that is a power we all have (we don’t have to try to save the obviously deceased) so the protocols rightly give paramedics guidance on when to terminate treatment in those cases where death is not obvious.

As I say this may be overly pedantic, but it was my view that the report as expressed in The Age was at least misleading, if not wrong, and in the interests of trying to make the law clear, I have set out my understanding.  I would be interested in hearing from any Victorian Paramedics if they have another view on what may have been meant in Ms Stark’s article.

Michael Eburn

26 April 2012.