I have been asked to comment on the following scenario from Victoria:

Recently my partner and I attended a cardiac arrest of an elderly patient
We ceased our efforts upon the sister telling us there was a “Not for Resuscitation” order in effect, although she could not find it when we asked to sight it whilst clearing up.
I would imagine quite a few paramedics also brush this excuse off as they do not want to further trouble the relative/carer during what is a very emotive time.
We had a bit of a laugh later when we found out she and her husband always fought and one of the other paramedics asked “are you sure there was an order?”
I have looked through all my notes at home, but I joined the service twenty years ago and I am sure things have changed, and I could not find the relevant notes anyway. It is interesting asking other Paramedics that not many could give me a concise answer either
So my request would be that you outline the act and our responsibilities under it for confirming the order exists.

First with some theory; there is a hierarchy of rules here. Ambulance paramedics (at least not until they are registered health professionals) are not employed to practice their profession as they see fit, but to practice their art as directed by their employer. The employer, in this case Ambulance Victoria, directs its staff on how they are to perform their tasks by issue protocols or guidelines. In Victoria they are the Clinical Practice Guidelines. For the sake of these comments I’m relying on the online version of Ambulance Victoria Clinical Practice Guidelines for Ambulance and MICA Paramedics, 2012 Edition (at http://www.ambulance.vic.gov.au/Paramedics/Qualified-Paramedic-Training/Clinical-Practice-Guidelines.html).

Above those is the need for authority. The NSW Ambulance protocols say:

A paramedic who treats a patient without authorisation acts unlawfully. Whilst the protocols and pharmacology of the ASNSW authorise paramedics to treat patients according to the paramedic’s relevant skill level, the necessary authorisation is given by the patient who provides consent to the treatment having proven their competency and capacity to make such a decision. (Page 2)

(I am again relying on an online version; Ambulance Service of NSW Protocols and Pharmacology, January 2011, at http://www.ambo.com.au/download/protocol_2011.pdf. I assume, but cannot verify this online version is both current and accurate. I do note that the site where the protocols are located is not an official ASNSW site).

Above this is the law (though some may argue that patient choice should rank above the law). The law recognises the need for patient consent but also sets limits, the patients’ consent does not convert what is illegal to legal (eg you cannot consent to your own death, so a person’s consent does not stop euthanasia being murder) nor can the patient insist that the paramedic or anyone not do something they are legally required to do.

With that hierarchy we can look at the scenario. The first step is what do the Clinical Practice Guidelines say? Relevantly CPGA0203 Withholding and/or Ceasing Pre-hospital Resuscitation says:

Circumstances where resuscitation efforts may be withheld
– An adult (18 years or older), where a Refusal of Treatment Certificate has been completed for a current condition which most likely caused the cardiac arrest

The notes that accompany the Guideline say:

A refusal of treatment Certificate may be completed by:
– a person aged 18 years or older;
– an agent, where a person aged 18 years or older has completed an Enduring Power of Attorney (Medical Treatment)
– a guardian appointed by the Victorian Civil and Administrative Tribunal (VCAT).
• A Refusal of Treatment Certificate may be sighted by the attending Ambulance crew, or they may accept in good faith the advice of those present at the scene. If there is any doubt about the application of a certificate the default position of resuscitation should be adopted.
• A Refusal of Treatment Certificate may only be completed in relation to a current condition. When ceasing or withholding resuscitative efforts in these circumstances the attending Ambulance or MICA Paramedic needs to be satisfied that the Pt’s cardiac arrest is most likely due to this current condition. (Emphasis added).

The relevant Act is the Medical Treatment Act 1988 (Vic). As the notes correctly summarise, the Act allows for a person to sign a refusal of treatment certificate to refuse treatment, even life saving treatment, for a current condition. It is a criminal offence for a medical practitioner, not a paramedic, to provide treatment that has been refused in accordance with the Act (see s 6).

The Act does not replace the common law (see s 4) so the patient’s common law right to refuse treatment, even life saving treatment, remains. A person can refuse treatment provided they are informed and the refusal is binding on everyone if there is no reason it is intended to apply in the circumstances and no reason to think the person has changed their mind or was incapable at the time they made the decision (In Re T (1992) EWCA Civ 18). The decision does not have to relate to a ‘current condition’. If we go back to earlier posts on medical tattoo’s, it is my view that having ‘NO CPR’ tattooed on one’s chest would be a very good way to convey that decision. A decision relying on one’s common law rights does not need to be in any particular form. If it’s not in the form and manner prescribed by the Medical Treatment Act then applying the treatment would not be an offence contrary to that Act but it may still be an assault.

To then turn back to the scenario, the first thing is that the paramedics have applied their protocol which does say “the attending Ambulance crew … may accept in good faith the advice of those present at the scene” that there is a refusal of treatment certificate in place. The law says we should not make quality of life decisions, that all life is of equal value whether the person is 18 or 80 (see Airedale NHS Trust v Bland [1993] 2 WLR 316) but I suspect that is not how we view life in reality. I can imagine that a paramedic is more likely to accept that there is a refusal of treatment certificate in place where the person is 80 rather than 18. Further the Medical Treatment Act does apply to a refusal for a current condition and we don’t know what if any was this persons underlying condition. Had she just said she’d rather not be resuscitated?

What are the legal consequences? If all the family agree that this was the right decision there are unlikely to be any. If someone disagrees then there may be any number of consequences. First they may complain to the police. It’s hard to see that any offence has been committed. The paramedics could not be guilty of murder or manslaughter as proving their decision, rather than the cardiac arrest, caused the death would be impossible and making these decisions is something they have to do everyday. Provided the action was in good faith, there’s no real prospect of any criminal action. Further to treat someone without consent is an assault, to not treat them even if there is no refusal is not a crime – not touching someone is not a crime. I can’t believe the police would be interested unless they took the view that there was something untoward (eg the sister offered the paramedics money to stop) or they think the coroner should investigate in order to make recommendations to Ambulance Victoria in order to amend the clinical practice guideline.

Could there be a civil action? If there was that would be against Ambulance Victoria as it would be vicariously liable for any action of its staff. The allegation could be that they withdrew resuscitation when they should not have. The first step is that the paramedics did what they were authorised to do assuming they believed the sister and had no reason not to so believe her. If there was a fault it lies in AV in the way it’s drawn up the guideline (see Worley v Ambulance Service of NSW [2006] NSWCA 102 or my article “Ambulance Service of NSW v Worley; further legal lessons for the emergency services” (2012) 5(2) Journal of Emergency Primary Health Care, Article 4). The guideline does reflect the Act but does not deal with a person who has exercised their common law right to refuse treatment.

If someone did want to take civil action, apart from having to prove that there was some damage, ie that continuing resuscitation would have had a better outcome, they would have to prove that the decision to discontinue was unreasonable in the circumstances. That may cause a court to think about and give directions on what the paramedics should consider when deciding whether to ‘accept in good faith the advice of those present at the scene’.

The matter could be referred to Ambulance Victoria or the Office of the Health Services Commissioner as a complaint regarding the standard of care. Presumably that would be investigated and the critical issue would be what factors did the paramedics think about or consider when deciding to accept the advice of the bystanders? On this point it is worth going back, again to the notes associated with the Guideline which say:

Ambulance crews must clearly record full details of the information given to them and the basis for their decision regarding resuscitation on the PCR. This is particularly important in circumstances where a copy of the Refusal of Treatment Certificate has not been sighted as it will serve if necessary as evidence of their good faith.

It seems that the paramedics here applied their guideline that says “… the attending Ambulance crew … may accept in good faith the advice of those present at the scene” that there is in place a refusal of treatment certificate.

What we don’t know is the “details of the information given to them and the basis for their decision regarding resuscitation”. The fact that the patient was ‘elderly’ is not legally relevant but I’m sure it is in day to day life. If we go back to the Act however a refusal of treatment certificate is meant to be in a particular form, witnessed by a medical practitioner and ‘another person’ (s 5) and relate to a current condition.

Withholding resuscitation on the basis that you think the patient is ‘elderly’ and that resuscitation is unlikely to be effective and a bystander appears to concur is not acting on a good faith belief that there is a refusal of treatment certificate in place. Paramedics should ask the bystander if they can name either the doctor or the ‘other person’ who was the witness – perhaps it was the bystander themselves? And ask ‘what condition are they suffering from’; again to refer to the guideline “When ceasing or withholding resuscitative efforts in these circumstances the attending Ambulance or MICA Paramedic needs to be satisfied that the Pt’s cardiac arrest is most likely due to this current condition” and you couldn’t do that without at least asking what that condition was or observing evidence around them to show that they were suffering from a chronic condition that is likely to be the cause of their current cardiac arrest.

As noted above patients also have a common law right to refuse treatment but that does not extend to the bystander refusing treatment. To rely on that there would need to be some evidence but it need not be in a particular form – a card carried in the wallet (see Malette v Shulman (1990) 72 O.R. (2d) 417 (Ontaria, Canada) or in my view, a tattoo across the chest, is effective to indicate that CPR is refused.

We are, in effect, told that resuscitation was terminated when paramedics accepted, in good faith, that a refusal of treatment certificate was in place. That is defensible provided there is some evidence to accept that assertion. I would advise paramedics in that situation to ask questions about when the certificate was signed, in whose presence and with respect to what condition. If those questions can’t be answered or if the cardiac arrest is due to some other condition then resuscitation should be continued; unless there is clear evidence of a common law refusal which would need to be something that evidences it was this patient’s wish not to be subject to this treatment. That ‘something’ does not have to be in any particular form.

If this treatment was withheld improperly, and someone wanted to complain, I can’t see there would be any criminal or civil liability unless the evidence was that the patient would, more likely than not, have recovered if CPR had continued. The matter may be subject to internal investigation and ‘counselling’ if the paramedics could not demonstrate that they had seriously considered issues relevant to the Refusal of Treatment certificate, issues such as where was it signed, before whom and for what condition.