Today’s question revisits the difficult problem that faces paramedics, first responders, first aiders and others who may be called upon to provide emergency care and who are told that the patient has previously refused resuscitation. This issue has been talked about before – see the various results posts that a search ‘refuse resucitation’ brings up on this blog. It was also the subject of my first refereed journal paper – Michael Eburn, ‘Withholding, Withdrawing and Refusing Emergency Resuscitation‘ (1994) 2 Journal of Law and Medicine 131-146. Even so it’s worth returning to the subject. Today’s correspondent says:
Last week first aiders at a hotel attended a gentleman who had suffered a cardiac arrest in the hotel carpark. On arrival they commenced CPR and applied an AED. Full resuscitation efforts were made. While attending to the gentleman the wife was becoming increasing agitated saying that he had a Do Not Resuscitate order in place and was constantly asking them to stop all resuscitation efforts. The wife had no documentation available to show that her husband was DRN.
Should first aid/cpr have stopped once the wife verbally indicated that the patient had a DRN in place and if not, what is required in order for a first aider to withhold or stop CPR?
The law is not complex. It says (in summary):
- Medical care (emergency excepted) must be preceded by the patient’s consent (Rogers v Whitaker (1992) 175 CLR 479).
- A person can refuse medical care for any reason, or no reason. Their decision does not have to be judged as ‘reasonable’ by anyone else (Malette v Shulman (1990) 67 DLR (4th) 321).
- To validly refuse treatment a person must be competent, informed and the refusal applies in the circumstances that have arisen (In Re T  EWCA Civ 18).
- To treat someone who does not consent to the treatment is a battery (Collins v Wilcock  1 WLR 1172).
- Care can be provided in an emergency provided that it is care that a reasonable person would provide, acting in the patient’s best interests (In Re F  2 AC 1).
- Care cannot be provided that is contrary to that persons known wishes (In Re F  2 AC 1).
That simplicity however conceals the complexity that is knowing whether those circumstances exist. That is, the law is not complex, but its application is.
Talking generally, the law says:
If facts A, B and C are true – then this is the legal conclusion.
(That summary is true whether you’re talking about murder, negligence or a speeding ticket). Courts spend most of their time deciding if A, B and C are true, not what the law is or what the conclusion must be if those facts are true.
Let us put that discussion in context. If the ‘gentleman who had suffered a cardiac arrest in the hotel carpark’ had:
- previously decided that he did not want CPR, and
- in making that decision he was informed about what that would mean and its implications, and
- he meant that refusal to apply if he had a sudden and unexpected cardiac event (ie his ‘refusal’ was not just some general statement ‘if I become unwell and dependent, don’t proceed with heroic measures); and
- if the first aiders knew all that (or at least knew (1) and had no reason to question or doubt (2) and (3) – Malette v Shulman (1990) 67 DLR (4th) 321)
then the first aiders should withhold CPR.
But how do they know (1) or make any assessment of (2) and (3)? One might say they know he’d refused CPR as a person purporting to be his wife said so. But that may not be sufficient. They can’t assess the nature of the relationship between them and they certainly can’t take time to explore with her the circumstances in which the stated refusal were made or the circumstances in which it was meant to apply. Perhaps they had a discussion about his future and possible consequences but were they thinking of a sudden event in a car park? The statement by the wife is not ‘he has refused resuscitation’ it’s at best ‘I believe he has refused resuscitation’. Courts, in all the cases listed above, have had time to consider the issues and hear evidence about what happened and what people said and to hear counsel’s submissions on what the evidence shows and what conclusions the court should draw. A first aider does not have that luxury.
So how might a first aider or paramedic know any relevant facts. First might be a written document. At common law (as opposed to the various legislative provisions in some states and territories) there is no required ‘form’. Any evidence of the person’s wishes is indeed evidence that they have refused resuscitation. I have previously argued that I think a ‘Do Not Resuscitate’ tattoo (‘Medical tattoos offer important health information’ (March 3, 2012) but that position is not without controversy) or a medic-alert bracelet (Ignoring a medic-alert bracelet (July 19, 2015)) is pretty clear evidence. In Malette v Shulman the court said carrying a card that set out the patient’s refusal (in that case to blood transfusions) was sufficient. The court was concerned with a person who had
… chosen in the only way possible to notify doctors and other providers of health care, should she be unconscious or otherwise unable to convey her wishes, that she does not consent to blood transfusion…
In respecting those wishes, and withholding the treatment that had been refused:
The doctor cannot be held to have violated either his legal duty or professional responsibility towards the patient or the patient’s dependants when he honours the Jehovah’s Witness card and respects the patient’s right to control her own body in accordance with the dictates of her conscience. The onus is clearly on the patient. When members of the Jehovah’s Witness faith choose to carry cards intended to notify doctors and other providers of health care that they reject blood transfusions in an emergency, they must accept the consequences of their decision. Neither they nor their dependants can later be heard to say that the card did not reflect their true wishes. If harmful consequences ensue, the responsibility for those consequences is entirely theirs and not the doctor’s.
The first question to be considered then is there anything from the patient (not his wife) that communicates’ his wishes. The tattoo, the DNR bracelet, the card or a DNR ‘order’ signed by him (even if produced by her) and ideally (but not necessarily) counter-signed by the person’s treating doctor? In the story told by today’s correspondent we know the answer is ‘no’.
The next issue I would want to consider is does any purported refusal, particular where the only evidence of it is the wife’s statement, apply in these circumstances. One might imagine first aiders at a community event that is designed for the very elderly or the terminally ill. It might be easier to accept then that there is a DNR request that is meant to apply at that point. One does not have to be terminally ill to refuse CPR but it would seem, if the person is at the end stage of a terminal illness, that their direction is meant to apply at that time.
In today’s question, we’re told that the ‘gentleman who had suffered a cardiac arrest’ was ‘in the hotel carpark’. Clearly, he believed he was well enough to go to a hotel – what was he doing there? Staying there whilst seeking medical care? Or having a night on the booze whilst playing poker machines? In one sense it doesn’t matter, as noted a person can refuse treatment at any time and without reason. But if a first aider (or paramedic, or other health professional) is trying to understand the person’s wishes, given they have little time to make decisions, evidence of a medical condition that gives support to the idea that they may have refused CPR would be helpful. So, if the person was being wheeled out of the hotel with their oxygen bottle connected to their wheelchair, first aiders and others may feel more confident when told ‘he doesn’t want to be resuscitated’ than if the person is an apparently fit and healthy young person who has clearly been out partying.
A person’s spouse is the ‘person responsible’ for making medical decisions on their behalf if they are no longer able to make those decisions (I’m not sure which jurisdiction this question comes from, but see for example, Guardianship Act 1987 (NSW) s 33A). There are however many steps to go through before a ‘person responsible’ is asked to consent to treatment or the withdrawal of treatment (see s 40). A first aider can’t determine, on the scene of a cardiac arrest, whether the person who says they’re the patient’s wife is indeed the ‘person responsible’ (or whether one of the other people listed in s 33 fills that role). Consent under the Guardianship Act is, again, intended to be relied on for decisions where there is time, rather than emergency decisions (see s 37).
Finally, there’s the obvious position that the decision to commence treatment can be withdrawn later, but the decision to withhold CPR is terminal. If the first aiders start CPR then they will get assistance from the paramedics who in turn will deliver the person to a hospital. Once at hospital (assuming that the CPR is effective and they aren’t pronounced dead in casualty) the medical staff, supported by hospital ethicists, can review all the person’s circumstances, follow up with the GP or treating specialist (if there is one), allow the wife time to find the DNR order etc and then, if appropriate, withdraw treatment (but as noted by a correspondent on the FaceBook version of this blog, it won’t be appropriate to withdraw treatment if the first aid is successful and the person survives even if they suffer from the very deficits they wanted to avoid (eg long term brain damage). On the other hand, if the first aider chooses not to apply CPR then the person dies there.
So what’s to be done?
Really, it’s a risk assessment. The chances of this becoming a legal issue is infinitesimally small. If the person really has decided to refuse treatment, they may be aggrieved their wishes have been ignored (like Mrs Malette in Malette v Shulman) but they can’t do much about it unless they survive (which is not likely – CPR success: TV v Reality (September 3, 2015)). Remember in Malette’s case she had signed a card so had taken steps to convey her wishes ‘in the only way possible’. That was not suggested in the situation under discussion today.
In the situation described today there are two options. The first is to ignore the wife’s claims that there is a DNR order and ‘commenc[e] CPR and appl[y] an AED’. I can’t see that there could be any legal consequence. A court would recognise that first aiders have limited ability or time to assess any such claim. Unlike other cases such as a tattoo, bracelet or card, the person has not gone to any steps to communicate so the claim that they do not want resuscitation is not supported by any evidence. The best option has to be to complete CPR and let others, with more time and more ability to access information, determine what the patient has decided about their care (if anything). In Malette’s case it was said the patient’s wishes should be respected as she had done everything she could to communicate, and if the card (in that case) no longer reflected her wishes then she was still responsible for the consequences of doctor’s complying with her instructions. The flip side has to be that if a person has taken no steps to be able to communicate their wishes – by carrying the documentation or doing something, then they can’t hold others responsible for NOT acting on the (un)known wishes. I can’t see that to perform CPR in those circumstances is to do anything other than act reasonably and in the patient’s best interests (and I note that is not even beginning to look at any statutory exceptions for actions done in good faith by volunteers, good Samaritans or paramedics).
The other option is to accept the wife’s claims. Perhaps it is clear the patient is terminally or chronically ill, and the wife can provide details of where and when the order was made, the person’s treating doctor and other information that gives credence to her claim. In those circumstances, it may be reasonable to accept what she says – see Withholding Resuscitation in Victoria (April 8, 2013). I can’t see that raising any legal consequences either. To paraphrase Malette v Shulman:
The first aider cannot be held to have violated either his legal duty or professional responsibility towards the patient or the patient’s dependants when he honours the wife’s clear statement and respects the patient’s right to control his own body in accordance with the dictates of her conscience. The onus is clearly on the wife as a ‘person responsible’ for their partners care. When members of a person’s immediate and intimate family choose to insist that a person has refused the proposed they must accept the consequences of their decision. Neither they nor their dependants can later be heard to say that what they claimed where the person’s true wishes did not in fact reflect their true wishes. If harmful consequences ensue, the responsibility for those consequences is entirely theirs and not the first aider’s.
The second option (withhold treatment) may conflict with the first aiders personal, professional judgment and may lead to conflict with other family members. It may lead to difficult questions within the organisation for which they work, with police and although highly unlikely, the coroner.
In short the risk of any legal consequences with either option is probably very, very low but probably even lower with continuing first aid than withholding it (in the absence of a clear indication of the patient’s wishes).
The questions asked were
- Should first aid/cpr have stopped once the wife verbally indicated that the patient had a DRN in place? and
- if not, what is required in order for a first aider to withhold or stop CPR?
With no knowledge of the patient’s medical history and no independent, corroborating evidence (such as a card, tattoo, bracelet, signed DNR order etc) I would suggest that the best approach was to continue CPR. If that was contrary to the patient’s wishes, it is a decision that could be reversed later. My view would be that first aid/CPR should NOT have been stopped.
What I would want to see before withholding or stopping CPR is some evidence that the person themselves has tried to communicate their wishes (the tattoo, bracelet, card or ideally a formal DNR document signed by their medical practitioner and complying with the prescribed form in those states and territories where there is such a form (eg Victoria, but not NSW)). I would also want to be reassured that they had some relevant medical history (eg the terminal stage of a terminal illness) to believe that they intended to refuse CPR in the circumstances that have arisen, remembering however that this is not essential. A person can refuse any treatment they want, at any time, for any reason.