5 Chapter 5 The Middle Years

Chapter 5

The Middle Years

Chapter 5 Playlist

5.0 Introduction

Here we are, 18 years of age. We’ve reached the age of majority. We are adults and we will remain so until the moment we die (or as I like to call it, chapter 6). The previous chapter is behind us and no matter what, we can’t go back. Ever. It’s shut. Firmly shut. We can do pretty much anything now we want. Vote, buy booze and ciggies. Get a tattoo, get a passport without the involvement of legal guardians, sign a contract, write a will, visit a sex worker, become a sex worker, submit your own tax return, apply for and obtain a security officer licence and buy and own a copy of The Human Centipede on DVD or Blu-ray. Overall, you know what? You’ve got capacity and it’s the rest of the world’s job to prove you don’t. But rewind 24 hours, what has changed? How come you can do all these things today? And what does it mean for the rest of our lives? And just what is capacity? Isn’t it something to do with exceeding an acceptable number of drinks before the bouncers throw you out onto the street for being too *rowdy*? Okay, maybe that last one applies only to me….^[1]

Onwards, to the next section.

5.1 Capacity

Does anyone remember chapter 2? It was a fairly dry chapter. I tried to make it fun. I really did. But I’ll concede there was a lot of legislation, a bit of Latin and quite a bit of normative gubbins. I did make a brief mention of the case of A Local Authority v JB (Rev 1) [2020] EWCA Civ 735. The decision the courts had to resolve centred on whether an individual who lacked capacity had the right to pursue sexual relations despite not understanding the concept of consent linked to establishing a sexual relationship. In the last decades, society has made tremendous advancements to ensure that people with disabilities get to participate in life. People without disabilities are free to make mistakes. Shouldn’t people with a disability or disabilities get to make a mistake? Hey, to err is human, after all (also remember, to forgive, divine).

You only need to look around QUT’s hilly campus at Kelvin Grove to see the lengths that have been put in place to ensure unencumbered access to all parts of the university from the oval to A block. Walk around Brisbane’s CBD and feel the braille trail under your feet. The law is clear. It is unlawful (unless lawful exemptions apply) to discriminate based on disability.^[2] Building on this, if all people are entitled to engage in various aspects of society freely, at which point does society reconcile with the principle allowing individuals to make mistakes with when it is not. Fundamentally, who defines what is a mistake? From a paternalistic perspective when the evidence to support a best interest approach should be supported is moot. Beyond all, capacity is the criteria used to determine whether HCPs are entitled to act in the best interests of a patient lacking capacity. So, what is capacity and how is it framed when there is conflict between a patient’s best interest? To understand capacity better we need to visit a patient in a secure mental health facility in the UK. The patient is schizophrenic, diabetic and has a gangrenous limb requiring amputation.

In a famous piece of dictum in the case of Schloendroff v Society of New York Hospital (1914) 105 N.E. 92 from the USA, Justice Cardozo stated:

“Every human being of adult years and sound mind has a right to determine what shall be done with his [or her] own body.”

Capacity sits on a spectrum. A crude way to think about capacity is the graver the impact (the risks are held to be more significant or controversial in relation to risks associated with proposed treatment and its outcome) of the decision, the more a person must demonstrate they possess legal capacity. The problem comes with knowing how to apply a risk analysis approach to capacity. And that path can be treacherous. Get it right, you have supported an individual that is (hopefully) in keeping with their wishes as if they had capacity. Get it wrong, then your patient may allege assault and/or trespass to the person.

Capacity is defined in both the Powers of Attorney Act 1998 (Qld), Sch. 3 and the Guardianship and Administration Act 2000, (Qld) Sch.4. Also see Mental Health Act 2016 (Qld) s 14.

capacity, for a person for a matter, means the person is capable of—

(a) understanding the nature and effect of decisions about the matter; and

(b) freely and voluntarily making decisions about the matter; and

(c) communicating the decisions in some way.

Queensland Health has published a Guide to Informed Decision-making in Health Care. Determining capacity is complex. The guide suggests exploration of the following to help identify whether a patient has capacity to prove informed consent or informed refusal for proposed treatment.

• A patient must be able to express a choice and communicate it in some way
• Demonstrate they can understand information being told to them
• Appreciate the importance and significance of the information
• Logically analyse the information, weigh up risks and benefits based on the quality of the information being told to them
• Arrive at a clear and unambiguous decision without influence

Additionally,

“It should not be assumed that a patient lacks capacity to make a decision solely because of their age, disability, appearance, behaviour, medical condition (including mental illness), beliefs, apparent inability to communicate, or the fact they make a decision with which the health practitioner disagrees. Health practitioners work on the presumption that every adult patient has the capacity to decide whether to agree to or decline health care (including an examination, investigation or any form of treatment) except when it can be shown by a clinical assessment they do not have the capacity to make such a decision”.^[3]

Generally, a patient can be regarded as having decision-making capacity if they meet the following five criteria:

1) Does the patient understand the basic medical situation?

2) Does the patient understand the nature of the decision being asked of him or her? Understanding includes the following:

• • • implications – benefits, risks, what the treatment entails
    • alternatives and their implications, including the implication of no decision
    • retaining the information (short-term memory function) sufficient to make a decision.

3) Can the patient use or weigh that information as part of the process of making the decision (for example, asking questions)?

4) Can the patient communicate a decision (for example, by talking, using sign language or any other means)?

5) Is the patient communicating the decision voluntarily (for example, is there an absence of coercion, undue influence or intimidation by the patient’s family/decision-maker/s)?”^[4]

We will visit the topic of capacity in relation to suicide prevention in chapter 8, as the application of the test to determine capacity is not without controversy. Despite the language on capacity being clear – if you’re over 18 and it can’t be proved you don’t have it – you get to choose what is done to you; HCPs may conflate rationality with capacity. Rationality is an additional complexity in deciding capacity. It is true, your views on what you consider to be in the best interest of the patient can be in diametrical opposition to what the patient is accepting or refusing. In this case, if you can, phone a friend (the medical consult line) but a decision will still have to be made. An there’s the rub, which desired outcome is authentic and justiciable? Fundamentally, what is reasonable given the circumstances. If the law permits it, then a decision in operation with whichever statement of law is relevant and applicable will guide your decision-making process.

The case of Re MB (Medical Treatment) [1997] 2 FCR 426; Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649 and Brightwater Care Group (Inc) v Rossiter [2009] WASC 229 tell us:

• The patient must have the capacity to make the decision.
• Capacity is the ability to understand the nature and purpose of the proposed treatment, and the consequences of their decision to consent to the treatment.
• The gravity of the risk involved and the more serious the decision to be made, the greater the level of understanding is required.
• Every adult is presumed to have the legal capacity to make decisions unless it can be demonstrated that they don’t.

Conditions or circumstances that MAY impair a person’s decision-making capacity, on either a temporary or permanent basis may include: drug toxicity, alcohol intoxication, severe head injury, hypoxia, dementia, intellectual disability, significant pain, fatigue or fear. Please, please, please do not assume, presume or any other sumes for that matter that just because a patient presents with any one of the listed suggestions they do not have capacity. Determination of whether patient has or lacks capacity in the presence of any of the things listed (plus more besides) is still required.

The terms doctrine of necessity and doctrine of emergency are applied often in relation to healthcare law. Sometimes the terms are used interchangeably despite there being no reasonable basis to do so. They are distinct. In Re F (Mental Patient: Sterilisation) [1990] 2 AC 1 Lord Goff clarified the distinction between necessity and emergency where he drew on the evolution of the doctrine of necessity:

“The historical origins of the principle of necessity do not point to emergency as such as providing the criterion of lawful intervention without consent … when a person is rendered incapable of communication either permanently or over a considerable period of time (through illness or accident or mental disorder), it would be an unusual use of language to describe the case as one of “permanent emergency” — if indeed such a state of affairs can properly be said to exist. In truth, the relevance of an emergency is that it may give rise to a necessity to act in the interests of the assisted person, without first obtaining his consent. Emergency is however not the criterion or even a pre-requisite; it is simply a frequent origin of the necessity which impels intervention”.^[5].

In an emergency, and the patient lacks decision-making capacity, and treatment is deemed necessary to prevent serious harm to the life or health of the person paramedics will adopt a paternalistic approach to support the health of their patient. This is supported by the case of Secretary Department of Health and Community Services v. JWB and SMB (Marion’s case) (1992) 175 CLR 218 where it was stated at 310:

“Consent is not necessary … where a surgical procedure or medical treatment must be performed in an emergency and the patient does not have the capacity to consent and no legally authorised representative is available to give consent on his or her behalf.”

Capacity is a tricky thing to pin down and there are many things that can vitiate capacity both temporarily and permanently. A patient may lack capacity in one moment and regain it the next, only to lose it again. This may be found in some patients with dementia. Where capacity is an issue, it is incumbent upon HCPs to establish what the patient is willing to accept and what they are refusing. It will be hard to view things from the patient’s perspective. It is our job to try and reflect the patient’s wishes as if they had capacity and there is no countervailing emergency to support any treatment without consent. First, we must answer why it is necessary to obtain consent.

5.2 Consent

A person has a lawful right to make decisions about health care and ambulance services, which includes the right to accept or reject what is recommended by the healthcare provider, or to choose one of several options that may be available. Obtaining consent before cares are provided respects the patient’s autonomous right to make decisions, and furthermore, it protects the paramedic from any legal consequences arising from the provision of an ambulance service without proper authorisation.

Consent can be either:

• written
  • Use of consent forms is common in the health system but limited with respect to ambulance services
  • Patient’s signature is witnessed by one other
  • Written consent is documentary evidence of the agreement between the patient and the health care provider
• provided verbally
  • This is an agreement that has been expressed or stated
• or it can be implied
  • The patient or decision-maker may have indicated by his or her conduct, that they have no objection to the ambulance service that is proposed
  • Implied consent is limited to:
    • Simple procedures or routine interventions
    • Procedures for which the patient has knowledge and is likely to understand

Irrespective of the method by which the consent is provided, the consent must be valid (lawful), that is, each of the elements of a valid consent have been satisfied. There are several key elements to establish lawful consent. These are:

• The decision is made voluntarily
  • The decision must be made free from any manipulation, coercion or undue influence
    • Beausoleil v. La Communaunt’s des Soeurs de la Chatit’e de la Providence et al (Sisters of Charity) (1964) 53 DLR 65
    • Re T (Adult: refusal of medical treatment) [1992] 4 All ER 649
  • The person has been provided with information regarding their condition, proposed treatment, risks (of proposed treatment) and alternatives
    • The patient should be informed in broad terms about:
      • Their condition or suspected condition
      • The proposed treatment/ambulance service
      • The reason and potential benefits of receiving that treatment/ambulance service
      • The potential risks associated with the proposed treatment/ambulance service
      • Any alternative treatment options that may exist
      • Full information as to the consequences of any decision should be provided in circumstances where it is perfectly feasible to do so
        • Chatterton v Gerson [1980] WLR 1003, 1014
        • Ellis v Wallsend District Hospital (1989) Aust Torts Reports 80-259
        • Brightwater Care Group (Inc) v Rossiter [2009] WASC 229
      • The decision relates to the specific treatment that is proposed and ultimately provided
        • The scope of the consent will only extend to include those procedures/services discussed with, and agreed to, by the patient
          • Walker v. Bradley Unreported, District Court of NSW, Kirkham J. (15 December 1993)
        • The person giving consent has the capacity to do so
          • The patient must have the capacity to make the decision
          • Capacity is the ability to understand the nature and purpose of the proposed treatment, and the consequences of their decision to consent to the treatment
          • The gravity of the risk involved and the more serious the decision to be made, the greater the level of understanding that is required
          • Every adult is presumed to have the legal capacity to make decisions unless it can be demonstrated the patient lacks capacity
            • Re MB (Medical Treatment) [1997] 2 FCR 426
            • Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649
            • Hunter and New England Area Health Service v A [2009] NSWSC 761

There are legal exceptions to obtaining consent by HCPs. These are:

• Statutory exceptions where the law permits specified treatment/services without consent:
  • Section 157B Public Health Act 2005 (Qld) – detaining and transporting a person to a ‘treatment or care place’ where person’s behaviour indicates imminent risk of harm and specific criteria applies
  • Transplantation and Anatomy Act 1979 – child in need of a lifesaving blood transfusion and consent from parents has not been obtained or has been refused
• Statutory exceptions where the law mandates certain procedures:
  • Transportation Operation Road Use Management Act 1995 – person required to provide specimens for drug and alcohol testing following a road traffic crash
• Emergency where patient lacks decision-making capacity and treatment is deemed necessary to prevent serious harm to the life or health of the person

Section 157B Public Health Act 2005 (Qld) states:

157B Ambulance officer or police officer may detain and transport person

(1) This section applies if an ambulance officer or police officer believes—

(a) a person’s behaviour, including, for example, the way in which the person is communicating, indicates the person is at immediate risk of serious harm; and

Example—

a person is threatening to commit suicide^[6]

(b) the risk appears to be the result of a major disturbance in the person’s mental capacity, whether caused by illness, disability, injury, intoxication or another reason; and

(c) the person appears to require urgent examination, or treatment and care, for the disturbance.

(2) For the Police Powers and Responsibilities Act 2000, section 609(1)(a)(i), the police officer may consider advice received from a health practitioner about the person in forming a view as to whether there is an imminent risk of injury to a person.

(3) The ambulance officer or police officer may detain the person and transport the person to a treatment or care place.

(4) If the treatment or care place is a public sector health service facility that is not an inpatient hospital, the person may only be transported to the facility with the approval of the person in charge of the facility.

(5) If the person is detained and transported to a treatment or care place, other than a public sector health service facility, the person can not be detained at the place unless an Act otherwise requires.

Note—

See section 157E for detention in a treatment or care place that is a public sector health service facility.

(6) In this section—

inpatient hospital means a hospital where a person may be discharged on a day other than the day on which the person was admitted to the hospital.

Section 63 Guardianship and Administration Act 2000 (Qld) describes urgent health care. It states:

(1) Health care, other than special health care, of an adult may be carried out without consent if the adult’s health provider reasonably considers—

(a) the adult has impaired capacity for the health matter concerned; and

(b) either—

(i) the health care should be carried out urgently to meet imminent risk to the adult’s life or health; or

(ii) the health care should be carried out urgently to prevent significant pain or distress to the adult and it is not reasonably practicable to get consent from a person who may give it under this Act or the Powers of Attorney Act 1998.

(2) However, the health care mentioned in subsection (1)(b)(i) may not be carried out without consent if the health provider knows the adult objects to the health care in an advance health directive.

(3) However, the health care mentioned in subsection (1)(b)(ii) may not be carried out without consent if the health provider knows the adult objects to the health care unless—

(a) the adult has minimal or no understanding of 1 or both of the following—

(i) what the health care involves;

(ii) why the health care is required; and

(b) the health care is likely to cause the adult—

(i) no distress; or

(ii) temporary distress that is outweighed by the benefit to the adult of the health care.

(4) The health provider must certify in the adult’s clinical records as to the various things enabling the health care to be carried out because of this section.

(5) In this section—

health care, of an adult, does not include withholding or withdrawal of a life-sustaining measure for the adult.

Section 64 Guardianship and Administration Act 2000 (Qld) defines minor and uncontroversial health care:

(1) Health care, other than special health care, of an adult may be carried out without consent if the adult’s health provider—

(a) reasonably considers the adult has impaired capacity for the health matter concerned; and

(b) reasonably considers the health care is—

(i) necessary to promote the adult’s health and wellbeing; and

(ii) of the type that will best promote the adult’s health and wellbeing; and

(iii) minor and uncontroversial; and

(c) does not know, and can not reasonably be expected to know, of—

(i) a decision about the health care made by a person who is able to make the decision under this Act or the Powers of Attorney Act 1998; or

(ii) any dispute among persons the health provider reasonably considers have a sufficient and continuing interest in the adult about—

(A) the carrying out of the health care; or

(B) the capacity of the adult for the health matter.

Examples of minor and uncontroversial health care mentioned in paragraph (b)(iii)—

• • • • • the administration of an antibiotic requiring a prescription
        • the administration of a tetanus injection

(2) However, the health care may not be carried out without consent if the health provider knows, or could reasonably be expected to know, the adult objects to the health care.

(3) The health provider must certify in the adult’s clinical records as to the various things enabling the health care to be carried out because of this section.

It is important to include legal definitions of the terms of life-sustaining measures and good medical practice. These are relevant in relation to Advance Health Directives. I know this looks like a patchwork quilt of legislation and I am conscious this does not make for fun reading. Hopefully by the end of the chapter the overlap of all this legislation will make sense. There is always a risk that it might not. Anyway, back to the legislation. Section 5A Powers of Attorney Act 1998 (Qld) defines life-sustaining measures as two out of three apply to front-line HCPs, and Two Out of Three Ain’t Bad, by the way. You will have to go hunting for these sections as they are not where you expect to find them in the Powers of Attorney Act 1998 (Qld). Tricky beasts.

(1) A life-sustaining measure is health care intended to sustain or prolong life and that supplants or maintains the operation of vital bodily functions that are temporarily or permanently incapable of independent operation.

(2) Without limiting subsection (1), each of the following is a life-sustaining measure—

(a) cardiopulmonary resuscitation;

(b) assisted ventilation;

(c) artificial nutrition and hydration.

(3) A blood transfusion is not a life-sustaining measure.

Section 5A Powers of Attorney Act 1998 (Qld) defines good medical practice for the medical profession in Australia having regard to—

(a) the recognised medical standards, practices and procedures of the medical profession in Australia; and

(b) the recognised ethical standards of the medical profession in Australia.

Keep these sections in mind as we need to talk about how they relate to Advanced Health Directives (AHD) in section 5.5 when there is uncertainty, not only about the existence of an AHD but when there may be a dispute as to the contents. Until then, we’ll keep trucking through key sections of acts applicable to consent.

Section 20 Transplant and Anatomy Act 1979 (Qld) states:

(1) Where a blood transfusion is administered by a medical practitioner to a child, the medical practitioner or any person acting in aid of the medical practitioner and under the medical practitioner’s supervision in administering such transfusion, shall not incur any criminal liability by reason only that the consent of a parent of the child or a person having authority to consent to the administration of the transfusion was refused or not obtained if—

(a) in the opinion of the medical practitioner a blood transfusion was necessary to preserve the life of the child; and

(b) either—

(i) upon and after in person examining the child, a second medical practitioner concurred in such opinion before the administration of the blood transfusion; or

(ii) the medical superintendent of a base hospital, being satisfied that a second medical practitioner is not available to examine the child and that a blood transfusion was necessary to preserve the life of the child, consented to the transfusion before it was administered (which consent may be obtained and given by any means of communication whatever).

(2) Where a blood transfusion is administered to a child in accordance with this section, the transfusion shall, for all purposes, be deemed to have been administered with the consent of a parent of the child or a person having authority to consent to the administration.

(3) Nothing in this section relieves a medical practitioner from liability in respect of the administration of a blood transfusion to a child, being a liability to which the medical practitioner would have been subject if the transfusion had been administered with the consent of a parent of the child or a person having authority to consent to the administration of the transfusion.

Sorry about that. It got a bit legislative and statutesque. I include all of this here because the consequences for getting it wrong could be a civil action for trespass to the person or even an allegation of criminal assault. By including the relevant legislation here too, I have provided defences to claims that consent was not obtained and what circumstances defences may apply. The most important issue out of all of this is that it needs to be clear what the patient is providing consent (which is no longere merely informed consent, but valid consent) for and what they are not providing (valid) consent for. The case of Montgomery v Lanarkshire Health Board [2015] 1 AC 1430 is the authority for how much information should be provided to a patient before they provide (valid) consent to treatment. The decision goes back to our old friend, what is reasonable? Determining reasonableness is an objective test but it is not wholly the responsibility of a body of medical practitioners skilled in a particular art. A HCP is required to discuss all reasonable and available options with a patient to enable them to make an informed decision. Instead of a reasonable body of medical practitioners deciding what information should be shared, it is now based on a reasonable person in the patient’s position who determines whether they would have made the same decision had additional information been shared.

Although I have placed medical negligence in the chapter on professionalism, consent and medical negligence share a similar legal basis in medical law. The Royal College of Physicians and Surgeons of Glasgow has provided an excellent history of medical negligence and consent from the 1950s to the current day. It can be accessed here.

Now we know what capacity is and what makes consent valid we need to know what makes a valid refusal of treatment. We will even take time to revisit documentation. Remember, documentation is your friend. Think of documentation like a plant. For a plant to survive and thrive it needs some sunlight, it needs some water, it needs the right soil and it even needs the right type of food. If you do all these things and it grows big and strong it might even support your full weight. Just like a tree, documentation needs the right care, attention and nurturing as one day you might need it to support your weight. You wouldn’t want to be standing on ghost limb, would you? Just when you need your documentation to be anchored and remain strong. Just saying.

5.3 Refusal of Treatment

An adult with capacity gets to choose to consent to or refuse proposed medical treatment. If options are available, they can reject options even if a treating physician believes that another option will be in the patient’s best interest. According to the case of Re T (Adult: refusal of medical treatment) [1992] 4 All ER 649 at 652:

“An adult patient who, suffers from no mental incapacity has an absolute right to choose one rather than another of the treatment being offered … This right of choice is not limited to decisions which others might regard as sensible. It exists notwithstanding that the reasons for making the choice are rational, irrational, unknown or even non-existent”.

HCPs possess a duty to provide their patient with full information regarding his or her condition, recommended treatment/ambulance service, and the consequences of the decision to refuse and assess the patient to determine that the decision to refuse is valid.

The elements of a valid refusal have evolved from the common law. I provide information from two cases, one from the UK and one from Australia. The cases are Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649 and Hunter and New England Area Health Service v A [2009] NSWSC 761. Decisions to refuse must be made voluntarily. The refusal must relate to the current circumstances. The person has capacity. As we learnt from the Re T case, certain things if found to be present can vitiate the validity of a refusal. A valid refusal must be one free from any manipulation or undue influence exerted by others. HCPs should be mindful of situations in which patient may be easily overborne by circumstances or others e.g. vulnerable (pain, fatigue, fear) and relationship vis-à-vis another in which the other exerts a dominate or controlling influence. Support and advice do not amount to undue influence.

HCPs must be mindful of exactly what the patient is refusing. The patient may accept some treatments but not others. You need to determine if the patient intends the decision to apply now and/or in changed circumstances e.g. deterioration of condition / risks materialise. HCPs need to aware of the following key points in relation to what constitutes a valid refusal:

• Patient’s decision to refuse, not the HCP’s decision
  • However, I feel this is a point worthy of further exploration in tutorials
• Patient has a RIGHT to refuse, the reason(s) for refusal is(are) irrelevant
• HCPs must provide the patient with information regarding recommended treatment/transport and risks if no treatment/transport is provided.
• HCPs must assess decision and be reasonably satisfied that the patient’s decision is valid
• Document everything clearly and in a structured way.

The paramedic is required to document fully in the patient record:

• Clinical assessment findings and assessment of decision to refuse:
  • Voluntary – comment if no reason to suspect;
  • Information – list that provided (be specific);
  • Relevant – clarify with patient and record; and
  • Capacity – record details of:
    • information retention
    • patient’s understanding of information
    • reasons for refusing (only relevant insofar as it may confirm weighing up process)
    • details of other matters discussed with patient that may demonstrate cogitative functioning and ability to understand
  • Any treatment that was provided with consent
  • Any advice that was offered, this includes exploring alternatives to proposed treatment.

If the paramedic forms the view that the patient has decision-making capacity and that the patient’s decision to refuse is valid, the paramedic must:

• Respect the patient’s decision
• Provide the patient with advice that will promote the patient’s comfort and safety
• Comprehensively document in the patient’s record, all relevant details regarding the attendance and the paramedic’s assessment and finding that the patient’s decision was valid
• Document everything clearly and in a structured way.

If the paramedic forms the view that the patient has impaired decision-making capacity and that the patient’s decision to refuse is not valid, the paramedic must:

• Obtain consent from a person authorised to provide consent for the patient (substitute decision-maker)
• If there is no substitute decision-maker available, provide urgent and necessary treatment in accordance with clinical practice guidelines, or treatment that is deemed necessary to relieve significant pain or distress
• Explore options to facilitate safe and timely transport of the patient to a health facility.
• Comprehensively document in the patient’s record, all relevant details regarding the attendance and the paramedic’s assessment findings in relation to the patient’s condition and the patient’s decision-making capacity.

The paramedic is required to document fully in the patient record:

• The assessment of the patient’s decision-making capacity
• The clinical circumstances and why the paramedic considered that healthcare was required urgently or required to prevent significant pain or distress
• Information as to why it was not reasonably practical to obtain consent from a substitute decision-maker
• Consultation/advice that was sought
• The treatment that was provided; and the options explored by the paramedic to facilitate safe transport to a health facility.

Here it is the mnemonic you’ve all be waiting for. The long wait is over. Don’t delay a moment longer, Stephen. Tell us. Just what is it? Well, the wait is over. Oh no, five keys on my keyboard aren’t working. Everyt*me * press *, * get a * *n *ts place. *’ll try again. Nope, *t’s st*ll a *. Ugh.

Oh, I had you all. That was too good to wait until 1 Apr*l.

Right, I’ll be serious now. The mnemonic is:

V is for voluntary

I is for informed

R is for relevant and related risks

C is for capacity

A is for advice and alternatives

I’m just going to leave it there because it speaks for itself in all its simplicity. A handy mnemonic to help guide you in determining whether a refusal is valid. Given the explanation.

But wait, there’s more. How about?

V is for Voluntary

A is for Alternatives

L is for Legal position (includes the test for capacity)

I is for Informed

D is for Document

I wonder what Nadine Montgomery would make of it? All the people we talk about are real and the topics are not abstract principles that need to be applied. All the things we do and not do have very real consequences for very real people.

5.4 Impaired Decision-making

In each Australian State and Territory, a legislative scheme is in place, referred to as the guardianship regime, which creates a framework permitting decision making responsibility for those with impaired capacity:

• Through a direction issued by the patient at an earlier time when their decision-making capacity was intact (Advance Health Directive)
• By a person appointed by a court or tribunal for this purpose (Guardian)
• By a person appointed by the patient for this purpose (Health Attorney)
• By a person authorised under the legislation for this purpose (Statutory Health Attorney)
• In urgent circumstances, by a health provider responsible for the care and treatment of the patient (limited).

The statutes relevant to decision making for patients with impaired decision-making capacity are the Powers of Attorney Act 1998 (Qld) and the Guardianship and Administration Act 2000 (Qld). These instruments create a comprehensive legislative scheme which extends the right of self-determination in health care decision-making enjoyed by competent adults to those who are suffering with impaired decision-making capacity, be it temporary or permanent. In circumstances where a patient lacks the capacity to make decisions about an ambulance service, the paramedic must take all reasonable steps to obtain consent from a person authorised to make decisions for the patient. As previously stated in the consent section, consent may not be required if the service to be provided is minor and uncontroversial and is necessary to promote the patient’s wellbeing^[7] or the service is required urgently to meet an imminent risk to the patient’s life or health.^[8]

Adult patients in Queensland are entitled by virtue of section 35(1) Powers of Attorneys Act 1998 (Qld) adults to give directions, about health matters and special health matters, for his or her future health care, give information about his or her directions, appoint 1 or more persons who are eligible attorneys to exercise power for a health matter for the principal in the event the directions prove inadequate and provide terms or information about exercising the power. This is called an Advanced Health Directive (AHD). An AHD must be:

• In writing
• Signed by the patient
• Signed and dated by an eligible witness who attests to the capacity of the patient at the time the document was signed
• Signed and dated by a medical practitioner (not the witness) who must also certify that the patient had capacity to make the Advance Health Directive at the relevant time.

Paramedic are entitled to sight the original or certified copy of the Advance Health Directive. AHDs should not be relied upon in circumstances where:

• The document is defective (pages missing; not signed; not dated)
• The directions are unclear or ambiguous
• The directions are inconsistent with good medical practice
• The clinical circumstances differ from those that are set out in the Advance Health Directive
• If the patient’s medical circumstances have changed to the extent that the Directive may no longer be appropriate
• If the patient has done something that would suggest that the patient may have changed their mind.

If the patient has made an ‘advance health directive’ giving direction to withhold or withdraw a life-sustaining measure that is required, and to do so in the circumstances that have arisen, the direction cannot operate unless the following conditions have been satisfied (s36(2)(a) (i)-(iv) Powers of Attorney Act 1998 (Qld)):

(2) A direction to withhold or withdraw a life-sustaining measure can not operate unless—

(a) 1 of the following applies—

(i) the principal has a terminal illness or condition that is incurable or irreversible and as a result of which, in the opinion of a doctor treating the principal and another doctor, the principal may reasonably be expected to die within 1 year;

(ii) the principal is in a persistent vegetative state, that is, the principal has a condition involving severe and irreversible brain damage which, however, allows some or all of the principal’s vital bodily functions to continue, including, for example, heart beat or breathing;

(iii) the principal is permanently unconscious, that is, the principal has a condition involving brain damage so severe that there is no reasonable prospect of the principal regaining consciousness;

Note—

This is sometimes referred to as ‘a coma’.

(iv) the principal has an illness or injury of such severity that there is no reasonable prospect that the principal will recover to the extent that the principal’s life can be sustained without the continued application of life-sustaining measures; and

(b) for a direction to withhold or withdraw artificial nutrition or artificial hydration—the commencement or continuation of the measure would be inconsistent with good medical practice; and

(c) the principal has no reasonable prospect of regaining capacity for health matters.

People can appoint a health attorney to make decisions in keeping with their wishes as if they had consent. Health attorneys are appointed by formal documents that enable a person to appoint another to make decisions for and on their behalf (decisions about health care and personal matters). The person must have decision making capacity at the time they appoint a health attorney. The health attorney must accept their appointment by signing the relevant appointing document. The health attorney has authority to make decisions for the person however, the authority does not operate unless and until the person loses decision making capacity. A health provider is entitled to ask that the health attorney provide proof of their appointment. When making decisions for a patient with impaired decision-making capacity, a health attorney must comply with the healthcare principles set out in the Act:

• The adult’s views and wishes, if they are known, must be respected
• The decision is to be the least restrictive of the adult’s rights
• The information provided by the patient’s health care provider must be considered
• The decision is to be in the adult’s best interests
• The health care must be necessary and appropriate to manage or promote the patient’s health or wellbeing.

Sections 102 and 103 Powers of Attorneys Act 1998 (Qld) provide protections for health provider (HCPs) where there the health provider is unaware of an advance health directive (s102) and for non-compliance with advance health directive (s103):

102 Protection of health provider unaware of advance health directive

A health provider is not affected by an adult’s advance health directive to the extent the health provider does not know the adult has an advance health directive.

103 Protection of health provider for non-compliance with advance health directive

(1) This section applies if a health provider has reasonable grounds to believe that a direction in an advance health directive is uncertain or inconsistent with good medical practice or that circumstances, including advances in medical science, have changed to the extent that the terms of the direction are inappropriate.

(2) The health provider does not incur any liability, either to the adult or anyone else, if the health provider does not act in accordance with the direction.

(3) However, if an attorney is appointed under the advance health directive, the health provider has reasonable grounds to believe that a direction in the advance health directive is uncertain only if, among other things, the health provider has consulted the attorney about the direction.

There, that’s it. I promise. I’m going to leave the final word to… Well, who do you think?

5.5 Final Word

5.6 Case study

Tonight, you’ve been crewed with a paramedic who is aloof and distant. This will be the worst shift of your career. He is snarky and intimidating. He has an awful sense about him. He is a user-created messaging web platform made flesh. His humour, if that’s what you can call it is so dry it is barely perceptible. You think you may develop PTSD from sharing an ambulance for 12-hours. This aside, you are extremely professional, and you possess the maturity and nous to rise above this husk of a human in a uniform. You know that despite your differences, all your patients will be treated to an excellent standard because, thankfully, you’re not sitting in the driver’s seat. He is. What’s his name? Stuart, Stewart, nope that’s not it. Step… yes, that’s it. Oh, to hell with him, it’s only 12-hours (which will feel like 36).

At 2032hrs, you are dispatched to a 32-year-old male, query collapse at a private address. You arrive on scene to find a worn-out building with several cars parked in the front and on the driveway in varying states of repair and disrepair. You leave it to grumpy to be judgemental as you know, despite the short time in his acquaintance, is something he will excel at. Lo and behold he pours forth with some non-sensical and expletive fuelled (who knew one word could be used as an adjective, noun and adverb as well as a verb) invective before you are met by a young adult male who brings you to that rear of the property and ushers you inside.

Entering the property, you find yourself in the kitchen and you see two other males on a sofa. One is watching Better Homes and Gardens, the other is cyanotic and breathing intermittently and stertorously. As you begin treatment, the most wretched crewmate in the world taps several times on your left shoulder with the dorsum of his right hand. A non-verbal indication that we won’t be doing any of that right now, we’ll pick him, carry him to the back of the ambulance and then we might think about doing some of that.

The patient is lain on the stretcher in the ambulance. You take out the bag-valve-mask and attach to the oxygen, remove an OPA from the kit bag and size it, while your hands simultaneously connect the patient to the monitor. You are working so smoothly tonight. Everything you do seems effortless. This patient is fortunate to be treated by you, unlike Paramedicstein (I know, I know, that’s not the name of the creation) at the foot of the patient. You look up from what you’re doing for long enough to see that your crewmate has removed the patient’s garments from below his waste. He has a syringe in his hand and before you utter the words, drug check, he has administered an amount of something into the patient’s left buttock. He puts the syringe in the sharps container, closes the rear doors of the ambulance and begins driving. Within a matter of moments, you have gone from managing a GCS 3 patient to a GCS 16 patient. In an accent and profile not dissimilar from your crewmate’s (for an instant you think that your crewmate and your patient could be related, twins even) and your patient wants to leave the ambulance. The patient claims that failure to comply with this request will leave him little option other than force his way past you. The ambulance stops abruptly. The rear doors open. The patient is thrust from the ambulance. The doors shut, followed by a brief exchange of unintelligible words that can only be described as discourteous, the ambulance moves off. Your crewmate uses the radio to request police. You are left shaken, uncertain to what just happened and where you stand legally, ethically and professionally. You feel your chest tighten and you think it might be a good idea to call sick for the remainder of your shift. Instead, you open the patient report form and begin writing.

Capacity as well as being informed are vital components of any refusal. The failures may seem obvious and one-sided in this scenario. In any discussion you must consider the consequences of all acts and omissions. If the situation could ever be described as reasonable how did the outcome become unreasonable? Be sure to support your answers.

5.7 Podcast

No-one wanted to talk to me about capacity and consent. *sad face*

5.8 Further reading

Moritz, Dominique (ed), Paramedic Law and Regulation in Australia (Thomson Reuters (Professional) Australia, 2019) pp 175-203