Today’s question came as a comment on an earlier post. The writer says:
… Say a patient is adamant that they don’t want your help as a first aider. They clearly and explicitly state this. If you force treatment, what are the ramifications? Also, if they then become unconscious, are we still required to follow their wishes? I’m certain I saw you write something about this, but for the life of me I can’t find it.
It’s true, I’ve written much on this see https://emergencylaw.wordpress.com/?s=consent. 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. but even so questions like this constantly arise for new entrants and there’s no harm in revisiting the issues.
Let’s start with the first question:
If you force treatment, what are the ramifications?
The real answer is probably nothing. Law is not self-executing, just because you do something illegal it does not mean anyone is going to prosecute or sue you. For a prosecution the law enforcement authorities – usually the police – have to get involved and determine a number of issues in particular whether there is admissible evidence to prove the elements of the crime and relevantly, in context, is there a public interest in a prosecution.
To sue you the person who you ‘force treatment’ upon has to be sufficiently motivated, well connected and supported to bring a legal action that is likely to take many years. It also depends on the outcome, if later they reflect and realise you did them a favour then they’re unlikely to do anything, but if you have offended their deeply held beliefs or have exposed them to a risk or life that they did not want, then they may well be very motivated to take legal action (see Malette v Shulman (1990) 67 DLR (4th) 321; doctor sued for administering blood contrary to patient’s known wishes even though it saved her life)).
Another ramification is that the person you are trying to treat is entitled to use reasonable force to resist a battery – they may punch you (Tasmania – Alcohol affected patient refuses treatment and is not guilty of assaulting police – Part 2 (October 5, 2015)).
Putting aside the practical limitations what, at least in theory, are the ramifications. To touch someone without their consent is a battery – Collins v Wilcock  3 All ER 374 at p. 378:
The fundamental principle, plain and incontestable, is that every person’s body is inviolate. It has long been established that any touching of another person, however slight, may amount to a battery… “the least touching of another is anger is a battery.” The breadth of the principle reflects the fundamental nature of the interest so protected. As Blackstone wrote in his Commentaries, 17th ed. (1830), vol. 3, p. 120:
“the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man’s person being sacred, and no other having a right to meddle with it, in any the slightest manner.”
The effect is that everybody is protected not only against physical injury but against any form of physical molestation.
The most common justification for touching a person in first aid is that the person consents – Rogers v Whitaker  HCA 58, :
… except in cases of emergency or necessity, all medical treatment is preceded by the patient’s choice to undergo it. In legal terms, the patient’s consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure which is intended’.
Consent may be express (unusual in first aid, where a person is given an explanation of the proposed treatment and its risks and explicitly agrees to the treatment) or implied. Implied consent arises for example where the patient cooperates with the first aider and does as they are asked or otherwise assists in their own treatment.
In some cases, a patient cannot consent – due to their age, their mental capacity, the effect of their injury or illness, their level of consciousness etc. In those cases, treatment, without consent, is justified by the principle of necessity – In Re F  2 AC 1 (emphasis added):
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 [or she] is capable of rationally forming such a wish.
A person is able to ‘form such a wish’ if he or she is able to understand the information being presented to them and take that into account when making their decision. The test is a functional test, that is the question is ‘whether, at the time the decision had to be made, the person could understand its nature and effects’. It is not an outcome test that is whether it is a good or wise decision (PBU & NJE v Mental Health Tribunal  VSC 564 discussed in Victorian decision on refusing medical treatment – reviewing the principles (November 24, 2018)). The presumption is that an adult person is competent unless the contrary be shown.
A person validly refuses treatment if they make a decision in circumstances where they are:
- Informed; and
- The decision covers the situation that has in fact arisen (In Re T  EWCA Civ 18)).
There is one other legal defence to touching without consent, also discussed in Collins v Wilcock. Lord Goff said (at p. 378), after setting out the principle quoted above that there is:
… a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life…
Among such forms of conduct, long held to be acceptable, is touching a person for the purpose of engaging his attention, though of course using no greater degree of physical contact than is reasonably necessary in the circumstances for that purpose. So, for example, it was held by the Court of Common Pleas in 1807 that a touch by a constable’s staff on the shoulder of a man who had climbed on a gentleman’s railing to gain a better view of a mad ox, the touch being only to engage the man’s attention, did not amount to a battery… Furthermore, persistent touching to gain attention in the face of obvious disregard may transcend the norms of acceptable behaviour, and so be outside the exception. We do not say that more than one touch is never permitted; for example, the lost or distressed may surely be permitted a second touch, or possibly even more, on a reluctant or impervious sleeve or shoulder, as may a person who is acting reasonably in the exercise of a duty. In each case, the test must be whether the physical contact so persisted in has in the circumstances gone beyond generally acceptable standards of conduct; and the answer to that question will depend on the facts of the particular case.
Touching someone on the arm as you approach them and ask ‘are you ok?’ is not a battery.
Good Samaritan legislation
In every state and territory, other than Queensland, there is legislation colloquially known as good Samaritan legislation. This legislation provides that a person who comes to assist another without expectation of payment or reward, is not to be held liable for acts done in good faith (see Good Samaritan legislation – a comparison (February 22, 2017))
Let us apply those principles to the scenario ‘a patient is adamant that they don’t want your help as a first aider. They clearly and explicitly state this. If you force treatment, what are the ramifications?’
What follows may to be true if the patient is not competent but
- given that they are capable of being adamant, and
- following the principle explained in PBU & NJE v Mental Health Tribunal  VSC 564, and
- given the difficulties a first aider will have in assessing competence,
I will, for the sake of this discussion, assume the patient is competent.
Where a competent patient is ‘adamant that they don’t want your help as a first aider’ then to touch the patient is to commit a battery. To provide other help, eg to ring an ambulance because you think they really need it, is not a battery as you haven’t touched them. But to touch them is a battery and subject to the limitations discussed above, could see the first aider prosecuted, or sued, or both.
I cannot see how forcing treatment, where that involves touching a person, upon someone who is a ‘adamant that they don’t want your help as a first aider’ and they are capable of, and do ‘clearly and explicitly state this’ would be acting ‘in good faith’ as provided for in the good Samaritan legislation.
The situation becomes more complex (obviously) ‘if they then become unconscious’. At that point they are no longer competent. For years (and no doubt still) first aid instructors have said that once the person is unconscious you can rely on ‘implied consent’ to treat them. As the discussion of the legal principles above show, that is not correct. There is no implied consent and to infer that, having been adamant that they do not want your help that you can now infer that they do is plain silly.
Now the relevant doctrine is ‘necessity’ as described above. But you cannot treat contrary to their known wishes, but what are those wishes? Remember a binding refusal has to be competent, informed and cover the circumstances that now arise. We have assumed that up until the time the patient became unconscious, they were competent. But were they informed, and did they intend that refusal to apply in circumstances that have now arisen?
There are many reasons why a person may be adamant that they don’t want your help as a first aider. They may:
- Be stoic and not want to feel they are wasting your time;
- Not believe that they are critically ill
- Prefer to wait for the jurisdictional ambulance crew to arrive if one has been called
- So overwhelmed by the situation that they are actually thinking about what things they have to deal with – who is going to pick up the kids from school? How do I let someone know I’m not coming? – that they can’t actually think about what you are trying to tell them
- Prefer to wait for their partner or other close person to come to them to advise them
- They may not trust you
- They may, but it is unlikely, realise that they are very sick, that they are about to die, and that they are happy for that to happen naturally and if today is the day their ‘number is up’ or the day their ‘God is calling them’ or whatever other view they have, then so be it and they would rather die than be treated by you or anyone else.
The problem with all those scenarios is that the patient is not properly informed. They are not in a position where someone has been able to say ‘this is what is wrong with you, these are the options and the risks of each, what do you want?’ If they are adamant that they don’t want your help as a first aider but then lapse into unconsciousness one might infer that they did not realise how sick they in fact were.
Second, did they intend that decision to reject your help as a first aider to apply if the option were life and death? If they say ‘I don’t want your help as I’m going to:
- Take myself to hospital or the doctor
- Wait for my partner/parent/child to come get me
- Wait for the ambulance to arrive
Then they are saying ‘I’d rather wait for them’ not ‘I’d rather die’. In most cases one would have to say that a person who ‘is adamant that they don’t want your help as a first aider but who then ‘become[s] unconscious’ was not sufficiently informed and was making a decision between first aid by you or not, not between life and death and so that refusal does not extend to the circumstances that have arisen. In that case there is no binding refusal and the doctrine of necessity says ‘treat the person’.
There may however be cases where it is a clear refusal. First aid may involve seeing a stranger on the street who appears unwell or it may involve visiting a close relative with a know medical history and where their wishes are clear – that they do not want resuscitation. It may involve cases where persons have recorded advance directives or ‘do not resuscitate’ orders in place. In those cases, the insistence that they don’t want your assistance may mean ‘I don’t want CPR’ but there is more to first aid than CPR.
If we assume that the first aider is aware that the person has no CPR orders in place, then it is appropriate to withhold CPR but that does not mean that the person should not be assisted, and an ambulance called (depending on where they are). As with palliative care the person may be refusing life-saving care but that does not mean they don’t want assistance to die with dignity. So you would not say ‘they didn’t want my help, they have a DNR order in place, so I’m just going to let them die here in the street’.
Making these types of calls is difficult if not impossible and it is exactly these situations where the good Samaritan legislation will come into play. The first aider who sees that the person has now become unconscious will no doubt be acting in good faith if he or she thinks ‘this is worse than we thought, I’d better do something’. I would expect any court would accept that this is the very situation where the good Samaritan legislation should apply.
Question: … Say a patient is adamant that they don’t want your help as a first aider. They clearly and explicitly state this. If you force treatment, what are the ramifications?
Answer: The likelihood of ‘ramifications’ are low, but the first aider may be prosecuted or sued for battery. A person who is being touched against their will may use reasonable force to resist so the first aid may find themselves the victim of lawful violence.
Question: ‘…if they then become unconscious, are we still required to follow their wishes?’
Answer: Yes, but their wishes were ‘I don’t want your help as a first aider’ in the circumstances where I am conscious and able to express that view. That does not mean that if it was a choice between being assisted by you or someone else that they actually meant they would rather die than be treated by you. In nearly all cases that involve a first aider a statement ‘I don’t want your help as a first aider’ in circumstances where it is not clear how ill the person is does not extend to mean ‘‘I don’t want your help as a first aider ever, even if it means I may die or suffer significant long term harm’. If you treat the person in those circumstances you are not ignoring their wishes, rather they haven’t expressed a wish about what treatment they want in the circumstances that have arisen.
Where they have expressed a wish as the to what treatment they want in the circumstances that have arisen, that is where there is in place a relevant advance directive or clear communication that needs to be honoured. But again, only to the extent that it applies. A Do Not Resuscitate Order does not mean Do Not Do Anything.