This question comes from a fire fighter with Victoria’s Metropolitan Fire Brigade (the MFB).  The MFB provide an emergency medical first response to provide immediate care pending arrival of Ambulance Victoria paramedics (see Metropolitan Fire Brigade, Emergency Medical Response (2009)).   The question relates to Do Not Resuscitate (DNR) documentation.   My correspondent says:

I work as a firefighter with the MFB in Melbourne. As such, we are dispatched along with the ambulance service to 000 calls for emergency medical where CPR may be required.

When we arrive before the Ambulance Service, we are trained to assess if the patient is “Obviously Dead” and, if not, to commence treatment. “Obviously Dead” is much more definitive than “no signs of life”.

In a formal setting, perhaps a nursing home, if the staff have a DNR that they recognise and there are no signs of life, we might not commence treatment.

In a less formal setting: a home with the family around, a squat with drug users, a public place with random “friends”; someone might say that the patient has a DNR. They might even produce a document.

While it is relatively easy to carry on and commence CPR and ignore a “perhaps DNR” is some cases; starting CPR on a 90 year old, cold, lifeless great grandmother, dragging her out of bed, exposing her chest and cracking her ribs with her grandchildren in the next room while her daughter says “but, this is her DNR!” is a stressful moral decision to say the least.

These are emergency responses and the facts are not often clear.

The person holding the DNR may be the only other person present. They may be the beneficiary of the estate. They may have just smothered the patient. They may have legal power of attorney, or, they may be seriously psychologically damaged by the knowledge that their loved one’s peaceful death was unnecessarily marred by a gross physical intrusion.

We are not lawyers, or notaries or judges. And we are only there because seconds count; we have no time to play detective.

In the best of all possible worlds, we would not be called to such cases, but we are.

So, how do we recognise a “valid” DNR? And what legal authority do they carry?

I have addressed some of these issues with respect to Victorian ambulance officers in an earlier post – Withholding Resuscitation in Victoria (April 8, 2013) but there are some further issues here.

Victoria has led the way in giving effect to these principles with the Medical Treatment Act 1988 (Vic).  That Act provides for a prescribed form for a Refusal of Treatment Certificate (see s 5 and Schedules 1 and 3).  Where there is a certificate, s 9 says that a medical practitioner:

 … or 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 which he or she believes on reasonable grounds has been refused in accordance with this Act is not—

(a) guilty of misconduct or infamous misconduct in a professional respect; or

(b) guilty of an offence; or

(c) liable in any civil proceedings—

because of the failure to perform or continue that treatment.

Let me assume that a member of the MFB is not also a registered medical practitioner, nor are they acting under the ‘direction’ of a medical practitioner so this section doesn’t apply to them, but that doesn’t matter because the Act says (at s 4) ‘This Act does not affect any right of a person under any other law to refuse medical treatment.’

As noted in earlier posts ‘except in cases of emergency or necessity, all medical treatment is preceded by the patient’s choice to undergo it’ (see, most recently, Institutionalised Patient Refusing Paramedic Transport for Booked Treatment (March 6, 2017)).  In an emergency, the doctrine of necessity justifies treatment that is reasonable and in the patient’s best interests, but it does not justify treatment that is contrary to the known wishes of the patient (see The Doctrine of Necessity – Explained (January 31, 2017)).  Where DNR documentation has been completed that is evidence both that the treatment is contrary to their wishes and is not in their best interests (see “A straight forward answer to a DNR” (March 6, 2017)).   It follows that a clearly expressed wish that a person does not want DNR is legally binding (see ‘Medical Tattoos Offer Important Health Information’ (March 3, 2012)) and is binding without reference to the Medical Treatment Act.

It is certainly the case that it would be better not to be called to such cases and one does wonder why a family member in possession of a DNR order would call triple zero upon discovering their ‘90 year old, cold, lifeless great grandmother’ but it maybe that they simply didn’t know who else to call or what else to do (though ideally that should have been discussed when the DNR documentation was being completed).

The reality is that it is indeed difficult and that these are ‘emergency responses and the facts are not often clear’ so the answer is the fire fighters and then the paramedics have to make the best judgment that they can.  If there is a signed certificate that appears to have been executed under the Medical Treatment Act 1988 (Vic) then that should be honoured.  If the circumstances are consistent with a prior refusal, so the person is at home or in an institution with evidence perhaps to confirm that they were at the end stage of their life then it would be easier to accept their written DNR.  On the other hand, you would not accept the words of a bystander if there is a young person collapsed after a hard night partying and the unidentified bystander says ‘they always said they didn’t want to be resuscitated’.

As a fire fighter, the member can be sure that if there is an allegation of battery (for providing CPR that had been refused) or for negligence (for withholding CPR that had not been refused) any liability will belong to the MFB (see Metropolitan Fire Brigades Act 1958 (Vic) ss 54A and 55D) but I appreciate liability is not really the issue, it’s what to do in the patient’s best interests.

To answer that question is, as my correspondent says, difficult.  The short answer is that if the patient has refused CPR, or if they are not competent to do so, their lawfully appointed agent or guardian has refused treatment, that refusal decision should be honoured.   The best way to identify a valid DNR order is to see a certificate that meets the requirements set out in the Medical Treatment Act 1988 (Vic) but a valid refusal does not have to comply with that form.    Ultimately what to do is a judgement call, to be made on a case by case basis, with due regard to the fact that seconds count so not a lot of time can be spent addressing the issue.