My correspondent who asked the questions that led to my post “Treatment after a suicide” has asked some follow up questions.
I have some more questions for you (with examples). This came up while discussing your ‘refusing treatment and the elderly‘ post recently with colleagues.
1. What do you do with a patient who is not mentally unwell, but is incapable of caring for themselves adequately, who is refusing transport when it is medically necessary? e.g. no food in the house, unable to move due to physical injury, frequent serious falls, etc.
2. What do you do with a patient refusing transport where you are unsure of the person’s capacity to refuse – i.e. confused, delirious, dementia.
The important principle is respect for patient autonomy. People are allowed to make their own decisions about their health care, even if they are decisions that others think are foolish. If we take the first scenario, the person is “is not mentally unwell, but is incapable of caring for themselves adequately, who is refusing transport when it is medically necessary?” If we take the assumption that they are not mentally unwell as given then they can refuse treatment and transport, but that does not deny that the paramedics can’t do something for the person. It really depends on whether paramedics are transport providers, or stretcher bearers, or members of a health care team. If the former, then if the patient refuses transport, that is the end of the matter.
In Neal v Ambulance Service of NSW  NSWCA 346 the plaintiff had refused ambulance transport but that did not stop the argument that the service still owed him a duty of care, in that case to convey to the police who were taking Mr Neal into custody that they should take him to hospital. The case did not resolve the issue of how far the paramedic’s duty extended as it was held that even if they had given that advice to the police officers, it would not have affected the outcome of the case so the plaintiff could not prove that the breach of duty, even if established, caused his injuries, but it is at least arguable that the duty of a paramedic is more than just a duty to transport or not transport.
If the person is elderly perhaps it’s appropriate to call the local aged care assessment team, or community health unit at the public hospital. One can also query who rang the ambulance, if a family member who is on scene, or the persons’ doctor, then speak to them. If it was the doctor it would be quite appropriate to tell the doctor that the person has refused your services so that he or she can think about what else is required.
Naturally the issue of confidentiality has to be considered, it may be inappropriate to just ring a family member, but it may be appropriate to call other health professionals.
The Privacy and Personal Information Protection Act 1998 (NSW) s 17 says:
A public sector agency that holds personal information must not use the information for a purpose other than that for which it was collected unless:
(a) the individual to whom the information relates has consented to the use of the information for that other purpose, or
(b) the other purpose for which the information is used is directly related to the purpose for which the information was collected, or
(c) the use of the information for that other purpose is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual to whom the information relates or of another person.
When paramedics take a person’s history and discuss their care they may be collecting personal information but disclosing it to their treating GP or to another part of the health system would appear to fall within both subparagraphs (b) and (c) above.
Section 18 says:
18 Limits on disclosure of personal information
(1) A public sector agency that holds personal information must not disclose the information … unless: (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or…
(c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.
Finally s 26 says
(1) A public sector agency is not required to comply with section 9 or 10 [which deal with the collection and use of personal information] if compliance by the agency would, in the circumstances, prejudice the interests of the individual to whom the information relates.
The Privacy and Personal Information Protection Act 1998 (NSW) is part of a national suite of legislation to give effect to the privacy principles (see also Privacy Act 1988 (Cth)) so there will be similar legislation in all states and territories. So, for example, in Victoria
An organisation [such as Ambulance Victoria] must not use or disclose health information about an individual … [unless]
(h) the organisation reasonably believes that the use or disclosure is necessary to lessen or prevent-
(i) a serious and imminent threat to an individual’s life, health, safety or welfare; or
(ii) a serious threat to public health, public safety or public welfare-
and the information is used or disclosed in accordance with guidelines, if any, issued or approved by the Health Services Commissioner
(Health Records Act 2001 (Vic) Schedule 1, Health Privacy Principles, [2.2]).
As noted the various exemptions do not mean you can tell anyone or that a persons’ right to self determination is lost, so the issue has to be balanced. Just because a person is old or unwell or both, does not mean that they would want their children or other family members to know and they may tell you that, so you may think that is not the best person to call. Equally they may tell you that would be the best person to call, eg if they say they can’t go with you unless they’ve spoken with and taken advice from a daughter or son. As suggested if the doctor is the person who actually arranged for the ambulance to attend, then calling the doctor and telling them the outcome of your visit would be appropriate.
In the second scenario, the question arises because the person is “refusing transport where you are unsure of the person’s capacity to refuse – i.e. confused, delirious, dementia”. To refuse treatment the person has to be capable of refusing treatment.
A person lacks capacity if some impairment or disturbance of mental functioning renders the person unable to make a decision whether to consent to or to refuse treatment. That inability to make a decision will occur when:
a) the person is unable to comprehend and retain the information which is material to the decision, especially as to the likely consequences of having or not having the treatment in question;
b) the patient is unable to use the information and weigh it in the balance as part of the process of arriving at a decision”
(Re C (Adult)(Refusal of Treatment)  1 WLR 290, 295).
If the person you are dealing is unable to comprehend their situation or to consider it, they are not competent to refuse consent in which case the principle of necessity would justify treatment that was necessary and in their best interests (In Re F  2 AC 1).
The real issue, at least for professional paramedics, is doing what is in the patient’s best interests, not yours. When attending someone who is competent but who refuses treatment and transport but who needs assistance because of “no food in the house, unable to move due to physical injury, frequent serious falls, etc” there is no doubt that it would be easier to load them into the ambulance, drop them at hospital and let someone else deal with the problem. That would be the response of a stretcher bearer, but not a health care professional. Equally it would not be professional or ethical to simply say ‘they’ve refused the treatment I was offering, transport to hospital, so that’s the end of my obligation- take it or leave it…’
It may also be the ‘easy option’ to transport a person who appears to be refusing treatment but who also appears to be “confused, delirious, demented” but is transport to hospital actually what is required, is that indicated by their condition? Necessity justifies treatment that is reasonable and in their best interests, but if you are going to use force to take someone who does not want to go, is that either reasonable or in their best interests? Perhaps again a call to some other part of the health service, with the necessary attendant delays that may be caused in waiting for a mental health assessment team to arrive, would be the better option for the patient, even if it is not the best option for the paramedics, but the law and ethics says that it is the patient’s interests that must be paramount.
3 June 2013.