This question comes from an ALS paramedic with Ambulance Victoria

… regarding the legalities surrounding the resuscitation of a premature baby around the 20-24 week mark please.

I was hoping to gather some information pertaining to our legal relationship with the resuscitation of the baby when the mother is refusing the baby being resuscitated? Are we legally required to attempt resuscitation even though the mother is refusing or are we legally allowed to follow the mother’s wishes?

The mother also does not have an NFR in place for the baby.

As I understand it, a baby born at 20-24 weeks is unlikely to be able to survive.  A quick google search (I know not really academic) found this article – Traci L. Powell, Leslie Parker, Cynthia F. Dedrick, et. al., ‘Decisions and Dilemmas Related to Resuscitation of Infants Born on the Verge of Viability’ (2012) 12(1) Newborn & Infant Nursing Reviews 27-32 (available at http://www.medscape.com/viewarticle/760750_6).  The authors say:

The NRP [Neonatal Resuscitation Program] endorses the American Medical Association’s code of ethics and offers recommendations for decision making when faced with resuscitation of a newly born infant. Specifically, the NRP states that resuscitation should be withheld when the gestational age is less than 23 weeks, birth weight is less than 400 grams, anencephaly is present, or with a confirmed diagnosis of trisomy 13 or 18. The Nuffield Council on Bioethics recommends that resuscitation and intensive care should not be provided to infants at a gestational age of less than or equal to 22 weeks unless the “informed” parent requests it and clinicians agree it is likely in the best interest of the infant. For infants at 23 weeks, they recommend allowing the parents to choose whether to resuscitate, but the medical team is not required to resuscitate or provide intensive care if they feel it does not benefit the infant. At 24 weeks, resuscitation and intensive care should be provided but may be withheld based on the infant’s condition and if both the parents and medical team agree it is not in the infant’s best interest. At 25 weeks or more, it is recommended that intensive care be provided.

The first point to make is that a baby is born alive when it has an existence independent of its mother.  So if the baby is born and takes a breath, or has a heartbeat or other evidence of independent existence, even if it remains connected to its mother via the umbilical cord, it is has been born alive and is entitled to be treated with respect and with all the rights, including the right to life, that apply to all people (R v Hutty (1953) VR 338).

As it has been born alive, the baby deserves to be treated but treatment should be in the best interests of the child.  There is no obligation, and even a duty not to provide treatment that is futile or not in the child’s best interests (Airedale NHS Trust v Bland [1993] AC 789).   On that basis, and assuming that the dates discussed in Powell et. al. above still reflect current medical ability (ie that the date of viability hasn’t been brought forward with advances in medical practice) then it would be prudent to withhold resuscitation on a baby under 22 or 23 weeks even if the parents wanted the baby resuscitated.      That is of course too simplistic, because paramedics are unlikely to know the gestational age of the baby and if the parents are demanding that paramedics act it would be hard to refuse to do so, but as a matter of principle what I’ve said must be the legal position.

As for the mother’s refusal that is different again.  If the premature birth were expected I would again anticipate that she would be in hospital and paramedics wouldn’t be involved.  If the birth was unexpected and happened at home with paramedics, the normal rule is that a decision to refuse treatment must be honoured.   In the circumstances I have in mind, ‘do not resuscitate’ documentation is unlikely to be in place given the baby’s just been born so that is not an issue.

A refusal of treatment, including lifesaving treatment, is only binding if it is informed, made by a person with capacity and covers the situation that applies (In Re T [1992] EWCA Civ 18).  In this case the mother may be competent and want to make a decision that applies now, ie in refusing resuscitation she knows that this applies now, when the baby needs resuscitation, but is she informed? At this stage neither she nor the paramedics know what the baby’s prognosis will be.   A parent can make medical decisions for their children but they must be motivated by the child’s best interests, not their own (Secretary of Department of Health and Community Services v B (“Marion’s case”) (1992) 175 CLR 218).

There is no doubt this would be a hard case.  If the mother appeared competent and was able to confirm that she understood the implications both of a premature birth and the consequences of refusing resuscitation, that if there had been an identified risk of premature birth this has been discussed with relevant health practitioners etc and the gestational age was known with certainty then paramedics should feel comfortable withholding resuscitation and providing comfort to mother and baby whilst transporting them to hospital. Exposing the baby to vigorous resuscitation against the mother’s wishes with little or no prospect of success is ethically and legally dubious.

On the other hand, the baby is a human being and parents can’t refuse treatment because they’d prefer it if the baby died for their own sake.  If there was any doubt as to the gestational age of the baby, the understanding of the parents or what was in the child’s best interests that doubt would have to be resolved in favour of resuscitating the baby until it could be handed over to medical staff who could make decisions based on a better understanding of the circumstances and the prognosis.

I explored some of these issues in a paper I wrote in 1997 – ‘The Legal Status of a Living Abortus’ (1997) 4 Journal of Law and Medicine 373-378.  I attach a copy here as it might be of use, but remember it is old so there will have been case law developments and some of the legislation references may be out of date, but the principles remain.