These two questions are related. Both are from paramedics, one from NSW, I’m not sure of the jurisdiction of the other.
We are regularly called to rural/regional hospitals to transfer patients to the referral hospital of our area. Occasionally as we are packaging our patient for transfer they will say to you, ‘I don’t want to go’. Sometimes their refusal is based on a particular hospital they don’t like or it’s simply that they don’t want to leave their town.
This often happens in front of the doctor who has authorised the transfer and sometimes it becomes clear that the patient has been making their feelings known for some time and have been overridden. The appearance of a new face spurs them to keep trying to make their feelings clear. Bearing in mind that the patient can often be extremely unwell and is therefore physically unable to get up and leave (but may still meet competency and capacity criteria).
My question regarding this circumstance is what are our legal and ethical responsibilities in these instances? At the moment we hear a patient make a statement like that are we obliged to cease the patient handover and transfer on to our stretcher until the patient’s consent has been either fully obtained or refused?
The other question, building on the discussion that followed my post ‘A Straight Forward Answer To A DNR’ (March 6, 2017) is
…what paperwork is involved when patients are in ‘locked facilities’ but not dementia or lacking competency. What paperwork should we be looking for to confirm that they are in fact non competent and in ‘locked care’ legally?
These questions are related as they are about consent and a paramedic’s professional responsibilities. Let me set out some guiding principles:
- First, as the High Court said in Rogers v Whitaker (1992) 175 CLR 479,  (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ) ‘except in cases of emergency or necessity, all medical treatment is preceded by the patient’s choice to undergo it’. (It is my view that the terms ‘emergency’ and ‘necessity’ are being used as synonyms not to suggest that there are two different doctrines; see Eburn, M., Emergency Law (4th ed, 2013, Federation Press for a more detailed defence of that proposition).
- Second necessity does not justify treatment that is contrary to the known wishes of the patient (In Re F  2 AC 1).
- However, to be a binding, a refusal of treatment must be informed, cover the situation that has arisen and the person must be competent (In Re T  EWCA Civ 18).
- A person has decision-making capacity if they are able to understand the nature of the suggested treatment, weigh up the consequences of and communicate his or her decision (In Re C (Adult: Refusal of Treatment)  1 WLR 290; Gillick v West Norfolk and Wisbech Area Health Authority  1 AC 112, 169).
- A paramedic, like a nurse or a doctor, has a duty to act in the patient’s best interests. Health care is provided to benefit the person in need of care, not for the convenience of the health care providers or an institution.
- Finally, one can only be responsible for the things that one is actually responsible for.
With those (somewhat cryptic) comments, let’s consider the given hypothetical.
In the situation described the patient appears to be competent; so what’s the paramedic to do? As a (soon to be registered) professional a paramedic has to consider the patient’s wishes and consent. The fact that a doctor has authorised the transfer does not deny the patient’s right to consent, or refuse consent and does not empower the paramedic to provide treatment that has not been consented to. But has treatment been refused? We’re told that that patient says ‘‘I don’t want to go’ – is that a refusal of treatment or a mere statement that they wish the world were other than it is. Lots of people might say ‘I don’t want to go’ to work, or to the doctors, or away from home. That does not mean that they don’t realise the need to go. Perhaps there is an inconsistent position – the patient may say that they understand that they have a condition that requires treatment, that they want the treatment, they just don’t want to have to travel for that treatment. That is not a refusal of consent that’s just a wish that they didn’t have to travel. Further, if they say that they understand that they have a condition that requires treatment, that they want the treatment but they refuse to travel for that treatment (not just wish it wasn’t required) even though the desired treatment can only be provided elsewhere, then that may be evidence that they are not in fact competent as they are not able to understand that if they want the treatment, they have to travel.
The first thing I would suggest a paramedic has to do, if a patient says ‘I don’t want to go’ is stop and talk to the person about what they mean and clarify whether, if they don’t want to, they are in fact willing to go. That may resolve the matter. If, however, the paramedic comes to the conclusion that the patient is clear – that they want to refuse transport and they are competent – then that decision has to be honoured. Before making that decision however, one would expect a paramedic to recognise that they are part of the health team and to raise those concerns with their colleagues. If you think the patient is refusing treatment and transport, but the doctors have booked an ambulance, it would be prudent to raise concerns with the nursing staff that have the long term care of the person, and the medical staff to resolve the issue. It may become clear that the patient is refusing treatment in which case you’ve advanced their interests, or it may become clear that despite appearances or even a short lucid moment, they are not in fact competent.
At the end of the day howver, if the paramedic is convinced the patient is competent and refuses transport, the doctor’s authorisation is irrelevant. Refusing to transport the patient is, no doubt, likely to be difficult and perhaps personally costly to the paramedic but that’s where professional standards and behaviour come in. A professional is expected to put the patient’s/client’s interests ahead of his or her own interests. So if satisfied the patient is refusing treatment/transport it’s incumbent on the paramedic to document the issue, raise it with the health care team and at the end of the day, honour the patient’s wishes.
How is that related to the second question? The second question was ‘…what paperwork is involved when patients are in ‘locked facilities’ but not dementia or lacking competency. What paperwork should we be looking for to confirm that they are in fact non competent and in ‘locked care’ legally?’ The paramedic is responsible for the task he or she is there to do, escort the person to further care. They are not responsible for all aspects of their care and it would seem to me it would be going further than required to insist on determining whether or not the person is being lawfully detained in a locked unit. That is where they are and the paramedic won’t have access to all the information as to how and why that decision was made. If there is a concern it would be appropriate to record it on the patient record and mention it to the receiving hospital.
That last point is also true if the paramedic has transported someone who said they don’t want to go or have treatment. If the receiving health care team are going to provide holistic care they need to know the whole story so if the patient, during transport, suggests that they don’t’ actually want the treatment they are being sent to receive, that should be communicated so that the doctors, nurses, social workers and others at the receiving intuition can be alerted to the concerns and take the time to ensure that the patient’s position is understood and appropriate care is given.
Let me acknowledge that as a legal academic sitting at a desk writing about general principles, it’s very easy to say this. I don’t for a moment deny that acting on some of this would be very difficult. A paramedic who has been called to a nursing home where the patient has been ‘packaged’ for transport and the medical and nursing staff expect them to go, expect them to get treatment that they think is in the patient’s best interest and believe either that the person has consented, or is not competent to either consent or refuse consent, are not going to take kindly to a paramedic forming a different view. And a paramedic is likely to feel on ‘insecure’ ground either asserting the patient’s rights as he or she perceives them or refusing to take the person and thereby throwing both the institution and ambulance service into chaos as resources are tied up. That it’s difficult doesn’t make it wrong. A person is entitled to refuse treatment and paramedics can only provide care that is consented to or where consent can’t be obtained, is justified by necessity or some other legal rule. If the person really is competent and really does refuse treatment, that has to be honoured by everyone in the health care team.