Another question for first aiders:

Hi Michael, I have a question in relation to the administering of emergency first aid, especially in circumstances where the “patient” is unable to provide permission themselves.

I believe it is generally well understood that a person is able to reject first aid treatment even if the obvious outcome from rejecting that first aid assistance is dire.  However where a person is unable to make their wishes known (such as a state of unconsciousness) the First aid worker can safely assume the person would have given their consent and can commence treatment such as resuscitation, application of a defib device or whatever else the first aid person believes is appropriate.

However what happens if, upon commencing that potentially life saving treatment a third person steps forward and claims to be a close relative of the patient and demands that you cease your treatment.  I am thinking of someone claiming to be a Husband, Brother or Father.

In some cultural settings it may be perceived that the male relative always speaks for the female, but what does Australian law say about it?

Can the the person claiming to be a close relative stop the persons treatment?

Does it make a difference if the patient is a child?

I look forward to your reply.

Let me start with an essential correction.  My correspondent says

I believe it is generally well understood that a person is able to reject first aid treatment even if the obvious outcome from rejecting that first aid assistance is dire.  However where a person is unable to make their wishes known (such as a state of unconsciousness) the First aid worker can safely assume the person would have given their consent and can commence treatment such as resuscitation, application of a defib device or whatever else the first aid person believes is appropriate.

That may be generally well understood … and it’s wrong.   Let me say that again – it’s wrong.  What’s being described here is what is traditionally called implied consent and implied consent does not justify the treatment of the unconscious, the doctrine of necessity does.  If a person is not capable of making a decision, reasonable treatment may be given but you cannot assume consent. Rather the relevant law is that of necessity. In Re F [1990] 2 AC 1 Lord Goff said:

The basic requirements, applicable in these cases of necessity, that, to fall within the principle, not only (1) must there be a necessity to act when it is not practicable to communicate with the assisted person, but also (2) the action taken must be such as a reasonable person would in all the circumstances take, acting in the best interests of the assisted person.

On this statement of principle, I wish to observe that officious intervention cannot be justified by the principle of necessity. So intervention cannot be justified when another more appropriate person is available and willing to act; nor can it be justified when it is contrary to the known wishes of the assisted person, to the extent that he is capable of rationally forming such a wish.

The problem with the notion of ‘assumed’ consent was that it provided for the legal fiction of assuming consent when people simply could not consent (eg children) or when people had clearly indicated they did not want the treatment.

So a person can receive treatment that is necessary and in their best interests but not if it is contrary to their known wishes. Can a person claiming to be a close relative of an adult stop the person’s treatment?  The answer is generally no.

If a person claiming to be a close relative demands that you cease treatment that may cause pause to think about whether they are telling you of the person’s prior wishes and can they support that, ie can they produce for example a refusal of treatment certificate.  Whether you accept that depends on the circumstances protocols and procedures of the ambulance service involved – see Withholding Resuscitation in Victoria (April 8, 2013).

If the person is the parent of a child or the adult patient’s appointed legal guardian and medical attorney (different names in different states) then they are the people entitled to make treatment decisions.  It is often the case that the treatment must accord with the patient’s known wishes and/or be in the patient’s best interests.   In many cases the consent is not required in an emergency (see for example Guardianship Act 1987 (NSW) s 37).

The common law says that a competent adult has the right to refuse treatment even if that means they will die.   The critical questions are:

  • Was the patient competent?
  • Was their refusal informed?
  • Does it cover the situation that now arises?

If the answer to those three questions is ‘yes’ then the refusal is binding, and must be honoured (see In Re T [1992] EWCA Civ 18).  If the refusal is being given by a parent or guardian the same questions have to be asked and answered.  If the parent or guardian is not fully informed because of the emergency nature of the situation and there is no time to explain their options any purported refusal will not be binding.

In short where you have a previously competent adult who is now incapable of making decisions due to the nature of their injuries or illness then no-one has the authority to refuse treatment on their behalf and treatment that is reasonably necessary and in the patient’s best interests can be given.  A parent or guardian can refuse treatment but that is not likely to be relevant in the situation of emergency first aid.

For a more detailed discussion see my book Emergency Law, (The Federation Press, 4th ed, 2013) pp 58-60.