I have been asked the following question by an ACT Paramedic:
“A question that repeatedly arises when it comes to ACD/Health Directions is the issue of physically sighting the order. Many staff believe that if they cannot sight the directive, then they must proceed as if the directive does not exist, and resuscitate, even if verbally told that there is a directive. Are you able to shed any light on this matter from a legal perspective?”
The relevant legislation is the Medical Treatment (Health Directions) Act 2006 (ACT). Significantly that Act provides for both ‘written’ and ‘unwritten’ health directions (ss 8 and 9). It also provides that it does not affect any rights under any other law (s 6).
At common law anyone has the right to refuse treatment. For a refusal to be effective it must be informed and cover the situation that has in fact arisen (In Re T  EWCA Civ 18)). The refusal can be communicated in whatever way is effective (Malette v Shulman  67 D.L.R. (4th) 321) (for more information on refusing treatment and the common law, see ‘Medical tattoos offer important health information’)
Under the ACT legislation a written Health Direction must be signed by person making the declaration and witnessed by two other persons. An unwritten declaration must be witnessed by 2 health professionals, one of whom is a doctor (for the purposes of the Act, a health professional is a doctor or a nurse (s 3 and definition of ‘health professional’). So a person can tell their doctor and another doctor or a nurse, that they refuse treatment and that is effective if both are there at the same time, ie you can tell the doctor one day, and the nurse the next).
A person who is in charge of a health facility and who is told that a person has made a health direction must either put a copy of the health direction on the file or if that is not possible enter a note on the file (s 14).
Finally s 16 says:
(1) This section applies to a health professional, or a person acting under the direction of a health professional, if—
(a) the health professional makes a decision that the health professional believes, on reasonable grounds, complies with this Act; and
(b) the health professional, or other person, honestly and in reliance on the decision, withholds or withdraws medical treatment from a person.
(2) The withholding or withdrawing of treatment is not—
(a) a breach of professional etiquette or ethics; or
(b) a breach of a rule of professional conduct.
(3) Civil or criminal liability is not incurred only because of the withholding or withdrawing of treatment.
So, where does that leave us. First it cannot be necessary to sight the actual health direction. The health direction need not be in writing (s 9) so there may not be a direction to sight. Further s 14 clearly does not require the health agency to see the direction so that demonstrates the Act does not require that everyone see the direction in order to Act on it. It is not inconsistent with the Act to say that, paramedics too, do not need to sight the direction.
Finally s 16 provides protection to ‘a health professional, or a person acting under the direction of a health professional’ (putting aside the issues that paramedics may also be registered nurses or doctors) a paramedic who is told by the patient’s treating health professional that there is a health direction, then the paramedic needs no more than that direction (and no reason to think that there is some other improper motive going on) to rely on that direction and the protection of s 16. In that case, let us assume that the paramedics or patient transport officers are tasked to transport a person and they are told the person is suffering a terminal illness and a relevant direction refusing resuscitation is in place. In that case it would be reasonable to withhold resuscitation if the person suffered a cardiac arrest during the transport even though the paramedics have not actually seen the health care direction.
The situation would be different if the paramedics are responding to say an emergency call and a family member says there is a refusal direction but cannot produce it. There the paramedics are not acting under the direction of a health professional and would have no reason to conclude, one way or the other, what the direction covered and whether it applied in the current circumstances. In that case the prudent action would be to resuscitate and transport and let the issues get sorted out at hospital.
As noted earlier, it may be the case that a paramedic is also a nurse or a doctor, that is a health professional. Section 12 says
A health professional must not withhold or withdraw medical treatment from a person in accordance with a health direction unless the health professional believes, on reasonable grounds, that—
(a) the direction complies with this Act; and
(b) the person has not revoked the direction or changed the person’s decision since making the direction.
A paramedic who is also a registered nurse would not have reasonable grounds to belief that a direction, that they had not seen, complied with the Act unless they had been told by the patients treating health team that it did (s 16). In short a paramedic who is also a nurse would be required by s 12 not to withhold resuscitation unless directed by the patients treating doctors or nurses in which case they would rely on s 16.
Ultimately it comes down to belief. A patient can refuse treatment under common law so if, as a paramedic, you are satisfied that the person has refused treatment and communicated that, you can act on it. It is not necessary that you see a signed direction and even seeing that may not be enough if you have doubts about its application. The level of confidence will vary – at one end is the patient who you have been told is terminally ill and the direction is included in their clinical notes; at the other is the case where you are called to an accident where the patient is not otherwise unwell and someone you can’t identify says ‘they don’t want to be resuscitated’. In the first case you would act on the direction, in the second case you would not. In between are a myriad of circumstances that can be made up and considered.
The Act itself does not expect that all directions are ‘seen’ (see s 9 and s 14) but even so they should be recorded. If, when being despatched at the request of a medical practitioner you are a told of the terms of a health care direction, that can be complied with sight unseen. In most, but not necessarily all, other cases, and certainly in the case of any doubt it would be reasonable to treat and let the issue be resolved at hospital.
I hope that helps.
18 December 2013.