A paramedic from Victoria wrote to me and said:
My understanding of advanced directives are that they are generally put in place with regard to a specific life-limiting condition. If the patient becomes unwell or is dying from an unrelated condition, it doesn’t apply.
My understanding of enduring power of attorney (medical) is that the agent given that power is able to make medical decisions for the person when they are unable to.
I recently came across a situation where an elderly man attempted suicide, and an ambulance was called by his family. The patient was not in cardiac arrest, but needed treatment in order to survive as he was unconscious and acutely unwell. Paperwork was presented to the crew after some time, including a ‘not for resus’ order, signed appropriately, for a chronic, life-limiting illness (but not a terminal illness). The patient’s family member also had enduring power of attorney, also documented appropriately. The family requested that treatment be withheld. This was a complex situation, as you might imagine.
My questions that I haven’t been able to answer are:
1. Does an advanced directive for a specific condition exclude suicide? (my understanding is yes, but I would like to read further on this)
2. Can a person with enduring power of attorney decline medical treatment in the case of a suicide?
3. What happens if an advanced directive and the agent with enduring power of attorney are in conflict?:
The reply, below, is written with the assistance of Ruth Townsend (who is a friend, colleague, nurse, former NSW Paramedic, lawyer and a researcher on the professional status of paramedics):
This is indeed a complex situation not helped by the fact that each state and territory has different legislation on this issue. The common law says, that a competent patient is entitled to refuse medical treatment, even if doing so will result in ending his or her life (Re B (adult: refusal of medical treatment)  EWHC 429). This right to refuse medical treatment extends to the situation where a patient loses capacity but has previously stated very clearly that they wish not to have certain treatment (Re C (adult: refusal of medical treatment)  1 All ER 819; Airedale NHS Trust v Bland  UKHL 5; Re T (adult: refusal of medical treatment)  EWCA Civ 18; Malette v Shulman (1990) 67 DLR (4th) 321. The principle underlying this law is that an individual has the right to self-determination.
The law has been given further effect by legislation in most states and territories, in Victoria the relevant Act is the Medical Treatment Act 1988 (Vic). Under that Act ‘Medical Treatment’ is defined as, “the carrying out of- (a) an operation; or (b) the administration of a drug or other like substance; or (c) any other medical procedure.” Resuscitation of the kind described by my correspondent would constitute medical treatment under this Act. Under the Guardianship and Administration Act 1986 (Vic) s 3, however, medical treatment does not include ‘first aid treatment’. What is ‘first aid treatment’ is not defined but given the other parts of the Act are dealing with treatment by a doctor or dentist, it would at least be arguable that care by a paramedic at the scene of the emergency is ‘first aid treatment’ rather than ‘medical treatment’.
Apart from the legislation, as noted above a patient has a common law right to refuse, and refuse in advance, all medical treatment including treatment that is necessary to preserve their life. That right continues to exist; the Medical Treatment Act 1988 (Vic) s 4 says “This Act does not affect any right of a person under any other law to refuse medical treatment”. In this case the question becomes have they exercised their common law rights? Again there is no express refusal of treatment for their suicide, though it could be argued that suicide is by itself an implied refusal of further treatment. If that were the case however, no-one could ever resuscitate a patient who attempted to take their own life but that cannot be the law.
A desire to kill oneself is not a sign of mental illness (Stuart v Kirkland-Veenstra  HCA 15) so the mere fact that Mr Veenstra appeared to be contemplating suicide did not give members of Victoria police power to detain him under the Mental Health Act (Vic) s 10 but, if he had attempted suicide, I’m sure members of Ambulance Victoria could have tried to resuscitate him. The justification for that must lie in the common law of necessity, which provides that it is permissible, when it is not possible to communicate with a patient to provide treatment that is necessary and in their best interests provided it is not contrary to their known wishes (In Re F  UKHL 1) and provided they were competent to make the decision (In Re T  EWCA Civ 18). Given their suicide attempt, and unlike in Stuart where the police could assess Mr Veenstra and determine that he was not displaying signs of mental illness, there would have to be a doubt as to their competency that would justify treatment. The paramedics would be supported by the Crimes Act 1958 (Vic) s 463B which says:
Every person is justified in using such force as may reasonably be necessary to prevent the commission of suicide or of any act which he believes on reasonable grounds would, if committed, amount to suicide.
That would also have justified the use of force by the police in Stuart v Kirkland-Veenstra if Mr Veenstra had been actively trying to kill himself, rather than merely contemplating his own death.
A person may appoint an agent to make decisions on their behalf or a guardian may be appointed for that purpose (Medical Treatment Act 1988 (Vic) s 5A). We are told that this “patient’s family member also had enduring power of attorney”; and enduring power of attorney relates to the management of property and “does not authorise the attorney to make a decision about the medical treatment of the donor of the power” (Instruments Act 1958 (Vic) s 125F). Perhaps however what is meant is that they were appointed by the person as their agent to make medical decisions, or as a guardian under the Guardianship and Administration Act 1986 (Vic).
An agent or guardian may refuse treatment on behalf of the person who cannot make their own decision if they are of the opinion, after receiving medical advice on the patient’s condition and the likely impact of any treatment, that;
(a) the medical treatment would cause unreasonable distress to the patient; or
(b) there are reasonable grounds for believing that the patient, if competent, and after giving serious consideration to his or her health and well-being, would consider that the medical treatment is unwarranted. (Medical Treatment Act 1988 (Vic) s 5B).
The Guardianship and Administration Act 1986 (Vic) provides that a person responsible for a patient, that is either their agent, an appointed guardian, their spouse, carer or close family member or friend (Guardianship and Administration Act 1986 (Vic) s 37) can give consent to medical treatment that is in the an incompetent person’s best interests (ss 38 and 39). By necessary implication, they can also refuse to give consent. In either case however they must have received advice from medical staff and have considered the best interests of the patient. It is unlikely that those conditions can be met at the road side or in the home. All of these provisions relate to consent to medical treatment by a doctor or dentist and provide various means of review, including court review, to make sure the decision to consent, or withhold consent, is made according to law and in the patient’s best interests. A doctor or dentist commits an offence if they treat a patient contrary to a refusal under the Medical Treatment Act 1988 (Vic) (s 6).
It follows that these provisions have little strict application in areas of paramedic practice. Notwithstanding this, Ambulance Victoria does recognise the importance of these provisions and the underlying premise that people are able to make their own decisions about their health care. Clinical Practice Guideline A0203 says:
Under the Medical Treatment Act 1988 a person acting under the direction of a Registered Medical Practitioner who, in good faith and in reliance on a Refusal of Treatment Certificate, refuses to perform or continue medical treatment is not guilty of professional misconduct or guilty of an offence or liable in any civil proceedings because of the failure to perform or continue that treatment.
The protocol goes on to say
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.
That guideline does not reflect that the Act now allows people to refuse medical treatment generally, not just in relation to a current condition, but in any event it clearly demonstrates that Ambulance Victoria recognises a patient’s right to refuse treatment.
So where does that leave us?
The questions asked were
1. Does an advanced directive for a specific condition exclude suicide?
Yes. Under the Victorian Act, a person can refuse “medical treatment generally”, or “medical treatment of a particular kind- for a current condition”. It is unclear from the story presented what refusal this was. If a person simply refused resuscitation, eg their medical treatment certificate was to the effect of “NO CPR”, or “NO BLOOD TRANSFUSIONS” that would be a refusal of “medical treatment generally”. In this case however, we’re told the certificate was “a ‘not for resus’ order, signed appropriately, for a chronic, life-limiting illness (but not a terminal illness)” which would seem like refusal of “medical treatment of a particular kind- for a current condition”.
If it is correct that this certificate was refusal of “medical treatment of a particular kind- for a current condition” then does it include a refusal for resuscitation if the patient attempted suicide? The answer, it is suggested is no. This person refused medical treatment for his “chronic, life-limiting” let’s say, for example multiple sclerosis. “Suicide” is not a medical condition but as a result of the suicide attempt the person had a condition of ‘drug overdose’ or ‘strangulation’ or ‘gun shot wound’ or whatever other means used to attempt suicide. Either way it is not the ‘current condition’ (multiple sclerosis) for which the Medical Treatment Certificate was signed.
2. Can a person with enduring power of attorney decline medical treatment in the case of a suicide?
The term ‘enduring power of attorney’ is incorrect in the context so the literal answer to this question is ‘no’ but if what is meant, is a substitute medical decision maker, ie an agent, guardian or ‘person responsible’ then the answer is I’m not sure. A person can refuse treatment and if they refuse treatment for an underlying condition, even food and water, and they die, it would be said the cause of death was the underlying condition; and if you are called to assist them it is to treat them for the underlying condition. But if they take positive action to take their own life that would appear to be a different condition.
The problem is that we have no clear definition of what suicide means. As a community we may accept, and not call it suicide when someone who completes a medical treatment certificate refusing treatment that they know is necessary to keep them alive and they then die, as expected in the company of their family. But we do not accept, and label is as suicide, if a person, even a terminally ill person, hangs or shoots himself or even takes drugs, prescribed by their doctor and supported by their family – that is usually labelled physician assisted suicide. It may these are distinctions without a difference or our reaction to the second examples reflects our concern and discomfort at the way we allow the dying or suffering to go on even when they don’t want to. Regardless of the ethics of the matter, I think the law would draw a distinction and would say a person can refuse life-saving treatment including resuscitation, but not treatment for active suicide. The legal basis for that distinction is unclear and one can’t help but feel that the law in this area continues to be “both morally and intellectually misshapen”; Airedale NHS Trust v Bland  2 WLR 316, 34 (Lord Mustill).
In light of the safeguards in the Medical Treatment Act and the Guardianship and Administration Act to ensure substitute decision makers are informed and acting in the patient’s best interests, because of doubt that must surround a question of whether or not a person who has attempted suicide was competent to refuse treatment, and with the support of the policy implicit in the Crimes Act that allows the use of force to prevent a suicide.
We would suggest that a paramedic can treat a suicide patient even in the face of an express refusal by an agent or guardian but they could also, both legally and ethically, chose not to treat where the suicide represented a clear and deliberate choice, supported by family and documentation and ideally by a medical practitioner.
3. What happens if an advanced directive and the agent with enduring power of attorney are in conflict?
Take the action most likely to preserve life to allow the issue to be sorted. It may be that the patient’s wishes have changed and the agent is reflecting those changes. In any event if you don’t treat and the patient dies the issue is final. If you do treat and it turns out that the agent was acting inappropriately treatment can be withdrawn at that stage.