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PATIENT REFUSAL OF
PARAMEDIC TREATMENT:
PROMOTING PARAMEDIC
DECISION MAKING THROUGH USE
OF A LEGAL FRAMEWORK TO
ASSESS THE VALIDITY OF
REFUSALS IN THE PRE-HOSPITAL
SETTING
Bronwyn Elizabeth Betts ASM
B.App. Sc (Nursing) LLB LLM
Submitted in fulfilment of the requirements for the degree of
Doctor of Philosophy
School of Law
Faculty of Law
Queensland University of Technology
2020
PATIENT REFUSAL OF PARAMEDIC TREATMENT: PROMOTING PARAMEDIC DECISION
MAKING THROUGH USE OF A LEGAL FRAMEWORK TO ASSESS THE VALIDITY OF
REFUSALS IN THE PRE-HOSPITAL SETTING
i
Keywords
Paramedic – Paramedic Treatment - Refusal of Treatment – Refusal of Transport -
Ambulance Services - Ambulance Transport - Patient Refusal – Patient Decision-
making – Valid Decision
ii PATIENT REFUSAL OF PARAMEDIC TREATMENT: PROMOTING PARAMEDIC DECISION
MAKING THROUGH USE OF A LEGAL FRAMEWORK TO ASSESS THE VALIDITY OF
REFUSALS IN THE PRE-HOSPITAL SETTING
Abstract
Paramedics in Queensland respond to over one million incidents each year of
which 74% are categorised as urgent. In one calendar year alone, 16,464 patients for
whom paramedic assistance was requested refused to provide consent for the
treatment and/or transport that was recommended by the attending paramedic.
The law recognises that an individual has a right to refuse medical treatment,
which would logically extend to include paramedic treatment and ambulance
transportation. The critical issue that paramedics must resolve when confronted with
a patient’s decision to refuse is whether the patient’s decision is lawfully valid. This
necessarily requires that the paramedic conduct an assessment to identify if the legal
requirements of a contemporaneous decision to refuse treatment have been satisfied.
Little was known about how paramedics conduct these assessments; what
difficulties they encountered when doing so; and what preparation they received to
equip them with the relevant knowledge and the necessary skills required to manage
a situation in which a patient refuses treatment and/or ambulance transport against
advice. What was known is that these assessments were often performed against a
backdrop of clinical uncertainty, in circumstances where time may be a critical
factor, and in a setting that can often be chaotic and unpredictable.
This thesis aims to fill this gap in knowledge by presenting the results of
research that quantitatively examined the frequency, circumstances and demographic
characteristics of patients that refuse paramedic treatment; contextually reviewed the
regulatory framework in which these decisions were made; critically evaluated
paramedics’ knowledge of the law and how they applied that law in practice; and
identified discrepancies that existed between law and practice.
The aim of this thesis is to inform, guide and ultimately promote paramedic
decision-making through relevant education and professional development and the
use of a legal framework, when responding to a patient refusal.
PATIENT REFUSAL OF PARAMEDIC TREATMENT: PROMOTING PARAMEDIC DECISION
MAKING THROUGH USE OF A LEGAL FRAMEWORK TO ASSESS THE VALIDITY OF
REFUSALS IN THE PRE-HOSPITAL SETTING
iii
Original and Significant Contributions to
Knowledge
The thesis represents an innovative and original piece of multi-disciplinary
empirical research that explores areas of paramedic practice within the legal
framework that regulates decisions to accept or reject paramedic treatment and/or
ambulance transport. It makes a significant and original contribution to knowledge in
this field in the following ways:
1. Provides a comprehensive analysis of demographic characteristics and
clinical circumstances in which patients refuse treatment and/or
transport. Whilst there have been some limited studies conducted in
jurisdictions outside of Australia that have examined frequency, clinical
circumstances and clinical outcomes of patients who refuse, the research
reported in this thesis has examined, for the first time in Australia, the
epidemiological and demographic characteristics of patients who refuse
paramedic treatment and ambulance transport against paramedic advice.
Empirical data relating to the frequency, clinical circumstances and
individual characteristics of patients who refuse paramedic treatment and
ambulance services was collected over a twelve-month period, analysed
and described.
2. Provides a detailed description of the regulatory framework in the
context of paramedic practice. This thesis comprehensively describes the
common law as it relates to contemporaneous decisions to refuse
treatment and does so in the context of paramedic practice and the
delivery of ambulance services in the pre-hospital setting. An
examination of this area of the law as it applies to paramedic practice is
unique and has not previously been conducted in Australia or elsewhere.
3. Provides empirical evidence of paramedics’ knowledge of the law. The
thesis critically evaluates paramedics’ knowledge of the law that regulates
patient decision-making and decisions to refuse paramedic treatment and
ambulance transport. An evaluation of paramedic knowledge of this area
of the law has never been done before.
iv PATIENT REFUSAL OF PARAMEDIC TREATMENT: PROMOTING PARAMEDIC DECISION
MAKING THROUGH USE OF A LEGAL FRAMEWORK TO ASSESS THE VALIDITY OF
REFUSALS IN THE PRE-HOSPITAL SETTING
4. Provides empirical evidence of paramedics’ practice. This thesis
critically evaluates how paramedics apply the law in clinical practice to
determine the validity of a patent’s decision to accept or reject
recommended paramedic treatment and/or ambulance transport. It is the
first time that empirical evidence of paramedic practice when responding
to a patient-initiated refusal of treatment or transport, has been presented.
5. Provides a critical evaluation of paramedic practice. The thesis
identifies discrepancies that occur between the law that regulates patient
decision-making, and that which occurs in paramedic practice. This is the
first time that a critical evaluation of paramedic practice and the
application of the law that governs contemporaneous decisions to refuse
paramedic treatment, has been conducted in Australia or elsewhere.
PATIENT REFUSAL OF PARAMEDIC TREATMENT: PROMOTING PARAMEDIC DECISION
MAKING THROUGH USE OF A LEGAL FRAMEWORK TO ASSESS THE VALIDITY OF
REFUSALS IN THE PRE-HOSPITAL SETTING
v
Table of Contents
Keywords .................................................................................................................................. i
Abstract .................................................................................................................................... ii
Original and Significant Contributions to Knowledge............................................................ iii
Table of Contents ......................................................................................................................v
List of Figures ......................................................................................................................... ix
List of Tables ............................................................................................................................x
List of Abbreviations .............................................................................................................. xi
Statement of Original Authorship .......................................................................................... xii
Acknowledgements ............................................................................................................... xiii
PART ONE: INTRODUCTION, JUSTIFICATION AND OVERVIEW OF
THE RESEARCH .............................................................................. 1
Chapter 1: Introduction ........................................................................................ 3
1.1 Introduction ....................................................................................................................4
1.2 The Role of Paramedics in our Community ...................................................................7
1.3 Overview of the Research Problem ................................................................................9
1.4 Gaps in the Literature ...................................................................................................13
1.5 Research Aims and Questions ......................................................................................14
1.6 Overview of the Research Design ................................................................................21
1.7 Scope of the Thesis .......................................................................................................24
1.8 Structure of the Thesis ..................................................................................................26
Chapter 2: Methodology & Research Design .................................................... 33
2.1 Introduction ..................................................................................................................33
2.2 Theoretical Framework .................................................................................................33 Quantitative Methodology ..................................................................................35 Legal Doctrinal Methodology ............................................................................35 Qualitative Methodology ....................................................................................36
2.2.3.1 Symbolic Interactionism ............................................................................... 38 2.2.3.2 Grounded Theory Methodology ................................................................... 39
2.3 Research Design and Methods ......................................................................................48 Epidemiological and Demographic Characteristics of Patients that Refuse
Ambulance Services in Queensland – A Contextual Analysis ...........................48 2.3.1.1 Data Collection ............................................................................................. 48 2.3.1.2 Data Analysis................................................................................................ 49
The Regulatory Framework and Refusal of Treatment and Transport – A
Contextual Analysis ...........................................................................................50 2.3.2.1 Data Collection ............................................................................................. 51 2.3.2.2 Data Analysis................................................................................................ 51
Paramedic Response to Patient Refusals – A Qualitative Research Project ......52 2.3.3.1 Focus Group Discussions ............................................................................. 54
2.3.3.1.1 Selection of Focus Group Participants ........................................... 54
vi PATIENT REFUSAL OF PARAMEDIC TREATMENT: PROMOTING PARAMEDIC DECISION
MAKING THROUGH USE OF A LEGAL FRAMEWORK TO ASSESS THE VALIDITY OF
REFUSALS IN THE PRE-HOSPITAL SETTING
2.3.3.1.2 Data Collection ............................................................................... 56 2.3.3.1.3 Data Analysis ................................................................................. 58
2.3.3.2 Document Analysis ...................................................................................... 60 2.3.3.2.1 Selection of Documents ................................................................. 60 2.3.3.2.2 Data Analysis ................................................................................. 62
2.3.3.3 Individual Semi-structured Interview ........................................................... 63 2.3.3.3.1 Selection of Interview Participants ................................................. 64 2.3.3.3.2 Data Collection ............................................................................... 66 2.3.3.3.3 Data Analysis ................................................................................. 69
2.4 Ethical Considerations ................................................................................................. 72
2.5 Summary ...................................................................................................................... 76
PART TWO: CONTEXUTAL ANALYSIS OF LAW AND PRACTICE ......... 79
Chapter 3: The Regulatory Framework and Refusal of Paramedic Treatment
and Transport ................................................................................... 81
3.1 Introduction .................................................................................................................. 81
3.2 Principles that Underpin Decision-Making and the Law ............................................. 83
3.3 Contemporaneous Decisions and the Law ................................................................... 87
3.4 Valid Decision .............................................................................................................. 95 Decision Making Capacity ................................................................................. 96 Voluntary Decision .......................................................................................... 103
3.5 Provision of Information ............................................................................................ 107 Requirement of a Valid Decision to Refuse? ................................................... 110 Duty to Provide Information ............................................................................ 115 Information and Assessment of Decision-Making Capacity ........................... 117
3.6 Urgent and Necessary Treatment ............................................................................... 117
3.7 Summary .................................................................................................................... 121
Chapter 4: Epidemiological and Demographic Characteristics of Patients
Who Refuse Paramedic Treatment and Transport ..................... 123
4.1 Introduction ................................................................................................................ 123
4.2 Literature Review ....................................................................................................... 124 Frequency of Patient Refusals ......................................................................... 125 Demographic and Clinical Circumstances ....................................................... 127
4.3 Data Access ................................................................................................................ 130
4.4 Data Analysis ............................................................................................................. 131
4.5 Findings ...................................................................................................................... 132 Age and Gender ............................................................................................... 132 Refusal of Transport by QAS Region .............................................................. 133 Time of Day ..................................................................................................... 134 Patient Location ............................................................................................... 134 Case Type ........................................................................................................ 136 Final Assessment ............................................................................................. 140 Limitations ....................................................................................................... 141
4.6 Summary .................................................................................................................... 142
PART THREE: FINDINGS - PARAMEDIC KNOWLEDGE AND
APPLICATION OF THE LAW IN PRACTICE ........................ 143
PATIENT REFUSAL OF PARAMEDIC TREATMENT: PROMOTING PARAMEDIC DECISION
MAKING THROUGH USE OF A LEGAL FRAMEWORK TO ASSESS THE VALIDITY OF
REFUSALS IN THE PRE-HOSPITAL SETTING
vii
Chapter 5: Overview of Findings and Initial Process Applied ...................... 145
5.1 Introduction ................................................................................................................145
5.2 Paramedic Education in Law and Ethics ....................................................................146 Educational Qualifications of the Study Participants .......................................148
5.3 QAS Clinical Practice Guidelines and Procedures .....................................................149
5.4 Introduction to the Findings - Knowledge and Application of the Law .....................156 Focus Group Discussions .................................................................................157 Individual Paramedic Interviews ......................................................................159 Identifying a True Refusal ................................................................................161 Initial Process Applied .....................................................................................161 Assessing Decision-Making Capacity ..............................................................162 Voluntary Decision ...........................................................................................163 Providing Information ......................................................................................164
5.5 Findings - Identifying a True Refusal .........................................................................165
5.6 Findings - Initial Process Applied ..............................................................................171
5.7 Summary .....................................................................................................................176
Chapter 6: Decision-Making Capacity ............................................................. 179
6.1 Introduction ................................................................................................................179
6.2 Focus Group Perspectives – Paramedic Knowledge and Application of the Law......180
6.3 Paramedic Knowledge of the Law ..............................................................................183 Knowledge of the Presumption of Capacity Principle .....................................183 Knowledge of Capacity - Ability to Understand or Actual Understanding? ....186 Knowledge of the Gravity of Risk Principle ....................................................188
6.4 Paramedic Application of the Law - Assessment of Decision-Making Capacity .......190 Application of the Presumption of Capacity Principle .....................................190 Application of the Gravity of Risk Principle ....................................................192 Assessment of Decision-Making Capacity .......................................................193
6.4.3.1 Take in and retain information ................................................................... 195 6.4.3.2 Comprehend and process information ........................................................ 198 6.4.3.3 Ability to communicate choice ................................................................... 200
6.5 Summary .....................................................................................................................201
Chapter 7: Voluntary Decision ......................................................................... 207
7.1 Introduction ................................................................................................................207
7.2 Focus Group perspectives – Paramedic Knowledge and Application of the Law ......208
7.3 Paramedic Knowledge of the Law ..............................................................................209 Influence to accept paramedic assessment, treatment and transport ................210 Influence to refuse assessment, treatment and transport ..................................215
7.4 Paramedic Application of the Law .............................................................................215
7.5 Summary .....................................................................................................................223
Chapter 8: Provision of Information ................................................................ 227
8.1 Introduction ................................................................................................................227
8.2 Focus Group Perspectives: Paramedic Knowledge and Application of the Law .......228
8.3 Paramedic Application of the Law .............................................................................230
viii PATIENT REFUSAL OF PARAMEDIC TREATMENT: PROMOTING PARAMEDIC DECISION
MAKING THROUGH USE OF A LEGAL FRAMEWORK TO ASSESS THE VALIDITY OF
REFUSALS IN THE PRE-HOSPITAL SETTING
8.4 Paramedic Knowledge of the Law ............................................................................. 233
8.5 Summary .................................................................................................................... 235
Chapter 9: Key Findings and Discrepancies Between Law, Knowledge and
Practice ............................................................................................ 237
9.1 Introduction ................................................................................................................ 237
9.2 Key Findings .............................................................................................................. 238
9.3 Discrepancies between Law and Paramedic Practice ................................................ 244 Assessment of Decision-Making Capacity: Reconciling Relevant Legal
Principles ......................................................................................................... 244 Voluntary Decision and Influence: Knowledge and Application of the
Law 246
9.4 Paramedic Knowledge of the Law ............................................................................. 248 Inconsistencies with Focus Group Views ........................................................ 248 Inconsistencies with Published Research ......................................................... 249
PART FOUR: CONCLUSIONS AND DISCUSSION ........................................ 257
Chapter 10: Conclusions, Discussion and Opportunity for Further Research259
10.1 Introduction ................................................................................................................ 259
10.2 Summary of Findings – Research Questions ............................................................. 259 Epidemiological and demographic characteristics of patients that refuse
paramedic treatment and transport ................................................................... 260 The regulatory framework and refusal of treatment and transport .................. 261 Paramedic knowledge and understanding of the law that regulates
decisions to refuse treatment and transport ...................................................... 262 Paramedic application of the law in practice ................................................... 265
10.2.5 Discrepancies between law and practice .......................................................... 266
10.3 Discussion .................................................................................................................. 267
10.4 Conclusions and Recommendations .......................................................................... 269
10.5 Limitations of the Study ............................................................................................. 271
10.6 Opportunities for Further Research ............................................................................ 271
10.7 Closing Remarks ........................................................................................................ 273
Bibliography 275
Appendices 295
PATIENT REFUSAL OF PARAMEDIC TREATMENT: PROMOTING PARAMEDIC DECISION
MAKING THROUGH USE OF A LEGAL FRAMEWORK TO ASSESS THE VALIDITY OF
REFUSALS IN THE PRE-HOSPITAL SETTING
ix
List of Figures
Figure 1: Process leading to the purposeful selection of interview participants ........ 54
Figure 2: The percentage of cases by gender (male = 8,234; female = 7,871)
and age group (49 missing cases) .............................................................. 133
Figure 3: The breakdown (%) of cases by QAS region (n = 16,463) ...................... 134
Figure 4: The percentage of cases by location and age group (n = 16,114) ............ 135
Figure 5: Case nature (n = 16,463) .......................................................................... 137
Figure 6: The location of the scene (n = 13,769) ..................................................... 139
Figure 7: Final assessment of patients refusing transport (n = 7,410), showing
the 29 categories that account for 85.95% of coded cases ......................... 141
x PATIENT REFUSAL OF PARAMEDIC TREATMENT: PROMOTING PARAMEDIC DECISION
MAKING THROUGH USE OF A LEGAL FRAMEWORK TO ASSESS THE VALIDITY OF
REFUSALS IN THE PRE-HOSPITAL SETTING
List of Tables
Table 1: Focus Group Data – Example of Initial Coding .......................................... 59
Table 2: Focus Group Data – Example of Focused Coding ....................................... 60
Table 3: Gender, educational qualifications and experience of individual
participants ................................................................................................... 66
Table 4: Individual Paramedic Interview Data – Example of Initial Coding ............. 71
Table 5: Individual Paramedic Data – Example of Focused Coding ......................... 72
Table 6: The number of cases according to location at the time the refusal was
made, and the time of day these cases occurred (n = 13,774).................... 135
Table 7: Comparison of case nature from paramedic original entry to manual
recoding from free text comments (n = 1,599) .......................................... 138
Table 8: The treatment status of patients that refused transport and were or
were not assigned a Final Assessment code (n = 16,463) .......................... 140
Table 9: Overview of findings – common categories .............................................. 160
PATIENT REFUSAL OF PARAMEDIC TREATMENT: PROMOTING PARAMEDIC DECISION
MAKING THROUGH USE OF A LEGAL FRAMEWORK TO ASSESS THE VALIDITY OF
REFUSALS IN THE PRE-HOSPITAL SETTING
xi
List of Abbreviations
ACP Advanced Care Paramedic
CAA Council of Ambulance Authorities
CCP Critical Care Paramedic
CPM Clinical Practice Manual
CPG Clinical Practice Guideline
CPP Clinical Practice Procedure
CSO Clinical Support Officer
DCPM Digital Clinical Practice Manual
DCS Department of Community Safety
EMD Emergency Medical Dispatcher
eARF Electronic Ambulance Report Form
ICP Intensive Care Paramedic
OIC Officer in Charge
SO Standard Operating Procedure
TAFE Technical and Further Education
QAS Queensland Ambulance Service
VET Vocational Education and Training
VACIS Victorian Ambulance Clinical Information System
VIRCA Voluntary, Informed, Relevant, Capacity, Advice
xii PATIENT REFUSAL OF PARAMEDIC TREATMENT: PROMOTING PARAMEDIC DECISION
MAKING THROUGH USE OF A LEGAL FRAMEWORK TO ASSESS THE VALIDITY OF
REFUSALS IN THE PRE-HOSPITAL SETTING
Statement of Original Authorship
The work contained in this thesis has not been previously submitted to meet
requirements for an award at this or any other higher education institution. To the
best of my knowledge and belief, the thesis contains no material previously
published or written by another person except where due reference is made.
Signature:
Date: _________________________
QUT Verified Signature
PATIENT REFUSAL OF PARAMEDIC TREATMENT: PROMOTING PARAMEDIC DECISION
MAKING THROUGH USE OF A LEGAL FRAMEWORK TO ASSESS THE VALIDITY OF
REFUSALS IN THE PRE-HOSPITAL SETTING
xiii
Acknowledgements
The doctoral experience is often referred to as ‘a journey’ and whilst the
reference is merely a cliché, I found my experience to be very much a journey, and
one of great discovery. I travelled long distances and had the opportunity to meet
many wonderful people along the way who inspired, motivated, educated and
enriched me. I have enjoyed every minute of my journey and I am profoundly
grateful to those who have made it possible.
First, I extend my sincere thanks to the Queensland Ambulance Service (QAS)
for affording me the opportunity to undertake this research in Queensland and for
allowing me access to relevant data and QAS employees. It was indeed a privilege to
do so. Thank you also to the many QAS paramedics who selflessly gave their time
to participate in interviews and group discussions. I am grateful for your honesty,
sincerity and willingness to share your experiences, all of which made it possible to
accurately address the research questions and for this, I am indebted.
Second, I thank my supervisors, Professor Lindy Willmott, Professor Ben
White and Professor Gerry FitzGerald for your support, encouragement, wisdom and
patience. You each inspired me, challenged me, and during difficult times, motivated
me to achieve that which I had set out to do. Thank you for having the confidence in
my ability to do so.
Third, I thank Dr Emma Bosley and Ms Jamie Quinn of the QAS Information
Support, Research & Evaluation Unit for the invaluable assistance provided during
the analysis of the quantitative data, and the presentation of those findings.
Thank you also to my family, Michael, Alexander, Jackson, Sally, Emilie and
Jessica for your unwavering support during this long journey and for the sacrifices
that you have made along the way. And to my ‘little man’ and much-loved family
pooch, Lewey, who sat beside me and kept me company every minute of every day,
but whose own journey in life sadly came to an end just weeks before the conclusion
of my PhD journey.
xiv PATIENT REFUSAL OF PARAMEDIC TREATMENT: PROMOTING PARAMEDIC DECISION
MAKING THROUGH USE OF A LEGAL FRAMEWORK TO ASSESS THE VALIDITY OF
REFUSALS IN THE PRE-HOSPITAL SETTING
Last, I thank my close friend and colleague, Dennis Jess, a man who devoted
his life to improving that of others. Dennis believed in this research project and
supported me every step of the way. In many respects, he made it possible for me to
embark upon this journey. His life was tragically cut short before this thesis was
completed but his memory will never fade.
I have been fortunate in life to have been guided by several great scholars,
none more so than my late father who constantly encouraged me to set goals and
inspired me to work hard to achieve them. His philosophy in life was simple: always
treat others with respect; never take from another, their dignity; and whatever you do
in life, ensure you contribute in some way to humanity.
I dedicate this thesis to my late father, John Henry William Betts, and to the
many paramedics and ambulance clinicians in our community that selflessly
and respectfully serve for the benefit of humanity.
Introduction 1
PART ONE: INTRODUCTION, JUSTIFICATION
AND OVERVIEW OF THE RESEARCH
Chapter 1: Introduction 3
Chapter 1: Introduction
It was a balmy December evening when paramedics were twice dispatched to attend
Miss C, a 28-year-old mother of one, who was holidaying on the Gold Coast. On the
first occasion, paramedics found Miss C sitting on a park bench enjoying the aquatic
outlook. A passer-by had earlier seen her lying on the ground and became
concerned. Paramedics, however, could not identify any immediate health issues and
Miss C stated that she was in good health.
Paramedics were later called to attend Miss C when another passer-by saw her lying
in the gutter on the side of the highway immediately adjacent to the park that they
attended earlier. On this occasion, Miss C advised that she had been unsuccessfully
attempting to contact her friend with whom she was staying and that she was merely
passing time before making another attempt to telephone him.
Again, paramedics could not identify any obvious health issues however, there was
‘something that was not quite right about the case’. During their previous
attendance, Miss C had told the paramedics that she had not consumed any alcohol
or drugs whereas, on this occasion, she told them that she had had ‘a few beers’
earlier in the afternoon. She also informed them on this second occasion that she
suffered from epilepsy but had not had a seizure for ‘a long time’. Upon further
questioning, Miss C confessed that she had no money on her and no means by which
she could get back to her friend’s home.
For several reasons, the paramedics were uncomfortable leaving Miss C at that
location. She was sitting on the side of a busy road, and the adjoining park was well
known to them as an unsavoury location. At the time, paramedics were only
authorised to transport people to health facilities and so offered to take Miss C to the
local hospital where a ‘doctor could check her over to make sure she was OK’ and
where she would be safe. Miss C declined. Genuinely concerned for her welfare, the
paramedics contacted the local police and asked if they could help Miss C and
perhaps take her to her friend’s home, or another location that would be safe. The
police agreed to do so but after speaking with Miss C, suspected that she may be
affected by alcohol so elected to take her to the local watch house until such time as
her friend could be contacted.
Approximately three hours later, and during a routine check of the watch house, a
police officer found Miss C on the floor of her cell. She was deceased.
During the Coronial Inquest1 into Miss C’s death, the Southport Coroner questioned
the paramedics directly regarding the frequency with which patients refuse or
decline their assistance. He also questioned them regarding their understanding of
decision-making capacity and how they would determine if a patient’s decision to
refuse would be valid. And finally, the Coroner requested to see any ambulance
1 The Inquest into Miss C’s death was held in the Southport Coroner’s Court before Mr Herhily SM
on 18 & 19 July and 2 August 1996. The Inquest pre-dated the public recording of Inquest findings.
In the absence of a public record of the inquest or its findings, the true identity of ‘Miss C’ has not
been used. My knowledge of the case and the evidence that was heard in open court relates to my
involvement as a legal representative for the Queensland Ambulance Service in this matter, and my
presence during the Inquest.
4 Chapter 1: Introduction
service guidelines that were in place to assist and guide paramedics when confronted
with a patient’s decision to refuse recommended services.
This year marks the 25th anniversary of Miss C’s death and yet the questions posed
by the Southport Coroner almost 25 years ago, remain largely unanswered.
1.1 INTRODUCTION
In the 2017-2018 financial year, there were 3.7 million incidents throughout
Australia to which 4.6 million paramedics and other ambulance service providers
were dispatched, resulting in 3.5 million patients who were assessed, treated, or
transported, by paramedics, to a hospital or health care facility.2
However, the request for an ambulance does not always result in the provision
of paramedic treatment, or the transportation of the person to a health care facility.3
One reason for this is that the patient may refuse to provide consent for the treatment
and/or transport that has been recommended.4
This thesis is about paramedics and how they respond to a situation in which a
patient, for whom an ambulance has been requested, refuses to provide consent for
paramedic treatment5 at the scene, and thereafter, ambulance transport to a hospital
or health care facility.6 More specifically, this thesis reviews the law that regulates
decisions to refuse health care, and evaluates paramedic’s knowledge of, and
compliance with, the law in their practice.
In order to provide relevant and essential context to the topic, this thesis also
examines and reports on the frequency, epidemiological and demographic
2 Commonwealth of Australia, ‘Report on Government Services’ (Productivity Commission, 2019)
<http://www.pc.gov.au/research/ongoing/report-on-government-services> at 8 April 2019. 3 Brian Steer, Paramedics, consent and refusal - are we competent?' (2007) 5 (1) Journal of
Emergency Primary Care <http://www.jephc.com/full_article.cfm?content_1d=416> 4 A patient may provide consent for paramedic treatment at the scene of an incident, but refuse
transportation to a hospital or health facility. Alternatively, a patient may refuse paramedic treatment
but provide consent for ambulance transport. Or a patient could refuse both treatment and ambulance
transport. Queensland Ambulance Service (QAS) collects data involving cases in which a patient
refuses transport against paramedic advice. 5 For the purposes of this research, paramedic treatment includes conducting a clinical assessment,
interpretation of assessment findings, and the provision of treatment such as the administration of
oxygen therapy, pharmacological agents, or carrying out a therapeutic procedure. 6 For the purposes of this research, ambulance transportation relates only to the physical transportation
of a patient, in a QAS vehicle, to a hospital or health facility, which includes a medical practitioner’s
surgery.
Chapter 1: Introduction 5
characteristics of patients who refuse paramedic treatment and/or ambulance
transport.
The research took place in Queensland and involved Queensland Ambulance
Service (QAS) employed paramedics and QAS patient data.7 The QAS, which is the
only emergency ambulance service provider in the State, granted approval for the
researcher to access de-identified patient data extracted from the data warehouse; de-
identified patient care records involving cases in which a refusal of paramedic
treatment and/or ambulance transport had taken place,8 and access to QAS employed
paramedics for the purpose of conducting focus group discussions and individual
paramedic interviews, subject to each participant providing consent.9
At the commencement of this research, the QAS was a division of the then
Queensland Government Department of Community Safety. QAS is now situated
within Queensland Health and is responsible and accountable for the delivery of pre-
hospital ambulance services to over five million Queenslanders plus visitors who
travel to the State each year.10 The service employs 3,661 full time equivalent
operational personnel, including paramedics11 and delivers services from 290
primary response locations throughout Queensland.12
A request for ambulance assistance can be made from any location in Australia
by calling the National triple zero emergency telephone line. Triple zero telephone
calls are intercepted by a Telstra operator who confirms that the request is for an
ambulance (as opposed to other emergency service providers) and redirects the call
to one of seven QAS Communications Centres that are situated throughout the State.
7 The research design involved interviews with paramedics and on-site access to de-identified patient
records. As such, travel and associated costs limited the research from including other Australian
ambulance service providers. 8 Information relating to both the identity of the patient and the attending paramedics were removed
before the record was provided to the researcher. 9 In-principle support for the research project provided on 9 March 2011 by the then QAS
Commissioner, Mr David Melville and approval to access de-identified refusal data provided by
current QAS Commissioner, Mr Russell Bowles on 23 April 2012 (EBN Ref. No. 03486-2012). 10 Council of Ambulance Authorities Inc. Report 49 2010-2011. 11 Australian Government Productivity Commission, above n 2. For the purposes of the report, the
term paramedic includes both qualified paramedics and those employed as a student paramedic or
base level paramedic. 12 Ibid; See, for example, Queensland Government, Department of Community Safety Annual Report
2011-12, 22. A primary response location is described as a location from which a combination of paid
and volunteer ambulance personnel respond in an ambulance vehicle.
6 Chapter 1: Introduction
The emergency call, once redirected, is intercepted by a QAS employed
Emergency Medical Dispatcher (EMD)13 who is able to determine, by asking a series
of scripted questions and by following a predetermined algorithm, the urgency of the
situation and the appropriate ambulance response that is required.14 A response that
is coded as a ‘Code One’ is considered to be potentially life threatening and requires
immediate dispatch of the paramedics, and the use of vehicle warning devices such
as lights and siren during the ambulance response.15 A response that is coded as a
‘Code Two’ is considered urgent and warrants an immediate dispatch without the
activation of the vehicle warning devices.16
The QAS adopts a ‘two-tiered response model’ when responding to requests
for paramedic and ambulance services. This model consists of Advanced Care
Paramedics (ACPs)17 and Critical Care Paramedics (CCPs)18 who have received
relevant education and training; hold formal qualifications in paramedicine;19 are
registered to practice as a paramedic;20 and are authorised by their employer to
13 EMD’s undertake a twelve-month vocational education and training program that is accredited by
the Australian Government, Australian Skills Quality Authority and implemented by the QAS
Communications Studies Unit situated in the QAS Education Centre. Upon successful completion of
course, the participant is awarded a Certificate III and Certificate IV in Ambulance Communications. 14 The program of scripted questions and algorithms is called the Medical Priority Dispatch System
(MPDS). The MPDS was initially developed by Dr Jeff Clawson and is now administered by the
Academy of EMD <https://www.emergencydispatch.org/articles/ArticleMPDS%28Cady%29.html>. 15 Queensland Ambulance Service, State Operations Centre Standard Operating Procedures, Dispatch
– QAS Response Priorities SOP02.1, March 2019. 16 Ibid. 17 A person employed as an Advanced Care Paramedic (ACP) in Queensland is required to hold an
undergraduate degree in Paramedicine or Health Science (Paramedic); a certificate to practice as a
Paramedic in Queensland; or equivalent qualification, determined by the Commissioner, QAS. The
role of an ACP as defined by the QAS, is ‘a health professional who provides frontline out of hospital
care, medical retrieval and health related transport for sick and injured people in an emergency and
non-emergency setting, accurately assessing and documenting patient’s health and medical needs to
determine and implement appropriate paramedical care in line with QAS policies and procedures.
Queensland Ambulance Service, Graduate Paramedic Information Kit, 2018
<https://www.ambulance.qld.gov.au/docs/Graduate-Paramedic-Applicant-Information-Kit.pdf> 18 Ibid. A person employed as a Critical Care Paramedic (CCP) in Queensland is required to hold an
undergraduate degree in Paramedicine or Health Science (Paramedic); a Graduate Diploma in
Intensive Care Paramedical Practice, a certificate to practice as a Paramedic in Queensland; or
equivalent qualifications, determined by the Commissioner, QAS. The role of a CCP is defined as a
‘health professional who provides high quality frontline out-of-hospital care in the treatment and
management of patients in acute, life-threatening emergencies. 19 Qualifications that are recognised include a Bachelor of Paramedicine or a Bachelor of Health
Science (Paramedic) or equivalent. 20 Amendments to the Health Practitioner Regulation National Law Act 2009 (Qld) (National Law)
facilitated the recognition of paramedic as a health practitioner, and the registration of paramedics
which came into effect on 1 December 2018. This research pre-dated the amendments to the National
Law in this regard and as such, paramedics who were interviewed as part of this research were not, at
Chapter 1: Introduction 7
provide varying levels of life-sustaining treatment, the administration of controlled
and restricted substances in prescribed circumstances,21 and invasive paramedic
interventions.22 In the 2017-2018 financial year, the service responded to just over
1.2 million requests for paramedic assistance.23
This introductory chapter will begin by providing (in section 1.2) a brief
overview of the role of paramedics in the community and the health services they
provide. This will provide context to the thesis and the evaluation of paramedic
knowledge and practice as it relates to patient decision-making and refusal of
paramedic treatment and/or ambulance transport. Section 1.3 of the introduction
provides background information and an overview of the research problem, which
provides both insight and justification for this research. Section 1.4 identifies gaps
in the literature relating to this topic. Section 1.5 addresses the aim of the research,
detailing the specific research questions, and providing an explanation as to how
these questions were addressed. In section 1.6, the methodological framework and
summary of the research design is explained, followed (in section 1.7) by the scope
of the research, which will provide a clear indication of what the thesis will, and will
not, address. An outline of the structure of the thesis is then presented in section 1.8,
which includes a brief summary of the content of each chapter.
1.2 THE ROLE OF PARAMEDICS IN OUR COMMUNITY
The role of paramedics in our community and the contribution they make to the
health care system has expanded significantly during recent decades.24 From humble
beginnings as ‘stretcher-bearers’, where their primary task was to provide a means of
the time of interview, registered as paramedics under the National Law. All participants in this study
however, met the subsequent criteria for registration as a paramedic under the National Law. 21 In accordance with the QAS Policies and Procedures set out in the Clinical Practice Manual, and as
authorized under the Health (Drugs and Poisons) Regulation 1996 (Qld), s66. 22 In accordance with QAS Policies and Procedures, set out in the QAS Clinical Practice Manual, that
have been approved and implemented in accordance with the provisions of the Ambulance Service Act
1991 (Qld), s41. See also Ambulance Service Act 1991 (Qld), s37 which provides for the authorisation
of officers (paramedics) employed under the Act, and section 38(a)-(c) which set out the legislative
powers of an authorised officer. 23 Australian Government Productivity Commission, above n 2. 24 Commonwealth of Australia, ‘Establishment of a national registration system for Australian
paramedics to improve and ensure patient and community safety’ (Senate Legal and Constitutional
Affairs Committee, 5 May 2016)
<http://aph.gov.au/Parliamentry_Business/Committees/Senate/Kegak_and_Constitutional_Affairs/Par
amedics/Report>
8 Chapter 1: Introduction
transport for the sick and injured, paramedics have evolved to become highly skilled
health professionals with specialist expertise in pre-hospital care.25
Associated with this shift in professional status has been a shift in the
educational preparation of paramedics and an extension in their scope of practice.26
Historically, the training and education of paramedics was vocational and was
provided by the employing ambulance service. Paramedic education has now shifted
into the tertiary sector and a university bachelor’s degree in paramedicine (or
equivalent) is now the minimal educational requirement for employment as a
paramedic.27
The scope of paramedic practice has expanded and dramatically so. The work
that they undertake in the pre-hospital setting can involve complex clinical
interventions that require a significant degree of skill, and which potentially carry a
high level of risk. They are essentially at the ‘sharp end of the patient’s journey’28
through the health system and in some cases, will be the first health professionals
with whom the patient will deal. It is often the paramedic who is responsible for
conducting that first clinical assessment and initiating a ‘pathway of care that is most
likely to achieve optimal outcomes’29 and in the most time efficient manner.
Paramedics are often required to work alone, or with a single colleague, in
areas that can be remote, without access to extensive diagnostic aids, with limited
communication, and where little or no back up resources are available.30 The
25 Earnest Bradley, History of the Queensland Ambulance (Queensland Ambulance Service, 1991) 38;
Dominique Moritz, ‘The Regulatory Evolution of Paramedic Practice in Australia’ (2018) 25 Journal
of Law and Medicine 765, 766. 26 Kylie O’Brien, Amber Moore, David Dawson and Peter Hartley, ‘An Australian story: Paramedic
education and practice in transition’ (2014) 11 (3) Australasian Journal of Paramedicine 1; Dominique
Moritz, ‘The Regulatory Evolution of Paramedic Practice in Australia’ (2018) 25 Journal of Law and
Medicine 765, 770. 27 Dominique Moritz, ‘The Regulatory Evolution of Paramedic Practice in Australia’ (2018) 25
Journal of Law and Medicine 765, 770. See also Australian Learning and Teaching Council,
Paramedic education: developing depth through networks and evidence-based research: Final Report
2009 <http://www.altc.edu.au/resource-paramedic-education-flinders-2009>; Council of Ambulance
Authorities, Regulation of Paramedics (September 2012)
<http://caanet.net.au~/images/documents/CAA_Submissions/2012_Regulation_of_Paramedics_CAA_
Submission_Final.pdf.> 28 Gerard FitzGerald, ‘Paramedics and scope of practice’ (2015) 203 (6) Medical Journal of Australia
240, 241. 29 Ibid. 30 Commonwealth of Australia, ‘Establishment of a national registration system for Australian
paramedics to improve and ensure patient and community safety’ (Senate Legal and Constitutional
Affairs Committee, 5 May 2016)
Chapter 1: Introduction 9
environment in which they practice is typically unstructured and can be potentially
hazardous. They can be confronted with a single patient or with multiple casualties
and in circumstances that can be volatile and unpredictable.31 Irrespective of the
environment, the location, or the clinical circumstances involved, paramedics are
required to act quickly and decisively, and with little room for error or
misjudgement.
In recognizing the importance of paramedics to the Australian community, and
the complexity of the role and the many tasks they perform, the paramedic profession
is now regulated under the National Health Practitioner Registration and
Accreditation Scheme (the National Scheme) that was established under the Health
Practitioner Regulation National Law Act 2009 (Qld)32 and administered by the
Australian Health Practitioner Regulation Agency (AHPRA).33
1.3 OVERVIEW OF THE RESEARCH PROBLEM
Interest in cases to which ambulances were dispatched, and no paramedic
treatment or ambulance transport was provided, gained momentum during the early
1990s, following publications that revealed an alarming proportion of litigation
involving ambulance service providers in the United States, resulting from cases in
which the patient had not been provided with paramedic treatment or transported by
ambulance to a hospital.34 Much of the early research that followed this revelation
<http://aph.gov.au/Parliamentry_Business/Committees/Senate/Kegak_and_Constitutional_Affairs/Par
amedics/Report> 31 Ibid. 32 The National Scheme was first legislated in Queensland in 2009 with all states and territories, by
agreement, enacting the model legislation. Health Practitioner Regulation National Law 2009 (NSW);
Health Practitioner Regulation National Law 2010 (NSW); Health Practitioner Regulation National
Law 2010 (SA); Health Practitioner Regulation National Law 2010 (Tas); Health Practitioner
Regulation National Law 2010 (WA); Health Practitioner Regulation National Law 2010 (NT);
Health Practitioner Regulation National Law 2010 (ACT). Paramedics were added to the Schedule of
the National Law by the Health Practitioner Regulation National Law and Other Legislation
Amendment Act 2017 (Qld). The regulation of the paramedic profession came into effect on 1
December 2018. 33 AHPRA is responsible for implementing the National Scheme and in doing so, works in
partnership with 15 National Health Practitioner Boards, including the Paramedicine Board of
Australia. Other health professions that are regulated under the National Scheme include: medical
practitioners, dental practitioners, nurses and midwives, chiropractors, optometrists, osteopaths,
pharmacists, podiatrists, psychologists, Aboriginal and Torres Strait Island health practitioners,
Chinese medicine practitioners, occupational therapists, and medical radiation practitioners. See
Australian Health Practitioner Regulation Agency < https://www.ahpra.gov.au/> 34 J Soler, M Montes and A Egol, 'The ten-year malpractice experience of a large urban EMS system'
(1985) 14 Annals of Emergency Medicine 982; R Goldberg, J Zautche and M Koenigsberg, 'A review
of prehospital care litigation in a large metropolitan EMS system' (1990) 19 Annals of Emergency
10 Chapter 1: Introduction
focused on identifying the reason why paramedics were not transporting patients for
whom a service had been requested, and the frequency with which this was
occurring. It was subsequently revealed that cases resulting in no ambulance
transport fell into one of two categories: those that the paramedic determined,
following a clinical assessment, were not suffering from a condition that warranted
paramedic treatment and ambulance transport to a hospital (paramedic decision); and
those where patients refused to provide consent for the transportation and did so
contrary to paramedic recommendation (patient decision).35
Following these initial studies, interest in cases involving a 'patient initiated
refusal of ambulance transport' escalated, and publications proliferated.36 There were
multiple studies conducted in the United States,37 Canada,38 England39 and Taiwan,40
all of which produced a body of knowledge regarding the frequency and clinical
circumstances in which decisions to refuse paramedic treatment and ambulance
transport took place in those countries.41 A review of this literature identified that
Medicine 557. The authors report that between 50 - 90% of claims against ambulance service
providers and personnel arise from cases involving patient non-transport. Christopher Colwell, Peter
Pons, Jacques Blanchet and Carl Mangino, 'Claims against a paramedic ambulance service: a ten-year
experience' (1999) (17) 6 The Journal of Emergency Medicine 999. 35 Brian Zachariah, David Bryan, Paul Pepe & Monica Griffin, 'Follow-up and Outcome of Patients
Who Decline or Are Denied Transport by EMS' (1992) 7 (4) Prehospital and Disaster Medicine 359;
David Cone, David Kim, and Steven Davidson, 'Patient-Initiated Refusals of Prehospital Care:
Ambulance Call Report Documentation, Patient Outcome, and On-Line Medical Command' (1995) 10
(1) Prehospital and Disaster Medicine 22. 36 Most of the research that has been conducted in the United States, Canada and England examined
refusal of ambulance transport and not refusal of paramedic treatment. The reason for this appears to
be related to the fact that data collection only captured those cases in which transport was refused.
Patients may have refused treatment as well, but the data collection tools did not provide an option for
that to be recorded. Published articles in which individual case studies were presented involved cases
that involved a refusal of both treatment and transport. 37 Zachariah et al, above n 35; Cone et al, above n 35. 38 Ed Cain, Stacy Ackroyd-Stolarz, Peggy Alexiadis & Daphne Murray, 'Prehospital Hypoglycemia:
The Safety of Not Transporting Treated Patients' (2003) 7 (4) Prehospital Emergency Care 458. 39 P Marks, T Daniel, O Afolabi, G Spiers and J Nguyen-Van-Tam, 'Emergency (999) calls to the
ambulance service that do not result in the patient being transported to hospital: and epidemiological
study' (2002) 19 Emergency Medical Journal 449; Deborah Shaw, Jane Dyas, Jo Middlemass, Anne
Spaight, Maureen Briggs, Sarah Christopher and A Niroshan Siriwardena, 'Are they really refusing to
travel? A qualitative study of prehospital records' (2006) 6 BMC Emergency Medicine
<http://www.biomedcentral.com/1471-227X/6/8> at 6 April 2012. 40 J Chen, M Bullard and S Liaw, 'Ambulance use, misuses, and unmet needs in a developing
emergency medical services system' (1996) 3 European Journal of Emergency Medicine 73. 41 Rick Bensen, 'How to take NO for an answer: How condition-specific information sheets can help
patients who refuse transport' (2005) Nov. Emergency Medical Services 61; Jay Weaver, 'I Didn't Call
for an Ambulance: How to better walk the slippery slope of patient refusals' (2005) March Journal of
Emergency Medical Services 62; Anne-Cathrine Naess, Reidm Foerde and Petter Andreas Steen,
'Patient autonomy in emergency medicine, (2001) 4 Medicine, Health Care and Philosophy 71;
Christopher Suprun, 'The Pen is Mightier ... How to avoid common errors when handling patients who
Chapter 1: Introduction 11
there were significant variations in both the size and methodology of each study that
was conducted, however, the reported outcome in terms of the frequency of 'patient
initiated refusal of ambulance transport' was consistently recorded to be between 5%
and 10% of all emergency ambulance responses during the respective study
periods.42 It is evident from a review of the literature that paramedics in a number of
countries are frequently required to respond to a situation in which a patient
expressly refuses treatment and/or transport against advice. What is not known is the
frequency and circumstances in which this occurs in Australia.
Ambulance service providers in Australia collect data regarding the number of
patients who are attended by a paramedic following which no ambulance transport is
provided.43 Prior to 2013, this data was published in the Annual Report of the
Council of Ambulance Authorities44 and since that time, the data has been reported
annually in the Commonwealth Government’s Productivity Commission Report on
Government Services.45 There is, however, no distinction made in these reports
between those cases in which the paramedic determined that transport was not
required, and those where the patient refused to provide consent for paramedic
treatment and/or transport against paramedic advice.
The only Australian study that has contributed in any way to this topic was
conducted by Toloo et al46 and published in their monograph that described the
characteristics of users of emergency health services in Queensland. The authors
refuse transport' (2006) April Emergency Medical Services 71; Denise Graham, 'Documenting Patient
Refusals' (2001) April Emergency Medical Services 56; Jacob Abbott, 'Informed Consent: An EMS
Obligation' (2000) Sept. EMS Insider 2; Jay Weaver, 'Beware Patient Refusals' (2000) Dec. EMS
Insider 2; Jeff Barnard, 'To Have and To Hold, Until Competence Do Us Part!' (2003) Nov.
Emergency Medical Services 53. 42 A detailed review of this literature is presented in Chapter 4. See also, Peter Balcar, 'Ambulance
Non-Transport: A Literature Review' (2003) 6(2) Queen's Health Service Journal 8. 43 Data relating to non-transport is captured and reported however, at the time that this research was
conducted, there was no data reported regarding non-treatment. It is possible that a patient would
provide consent for treatment but refuse transport to a hospital. It is also possible that a patient may
refuse paramedic treatment but consent to be transported to a hospital or health facility. 44 The Council of Ambulance Authorities Inc. is a representative body that includes membership of
the eight Australian ambulance service providers, three New Zealand providers, and Papua New
Guinea. Annual Reports (including ambulance data prior to 2013) can be accessed at
http://www.caa.net.au/. 45 Productivity Commission Report on Government Services can be located at
<http://www.pc.gov.au/research/ongoing/report-on-government-services>. 46 Sam Toloo, Joanna Rego, Gerald FitzGerald, Peter Aitken, Joseph Ting, Jamie Quinn and Emma
Enraght-Moony, Emergency Health Services (EHS): Demand & Service Delivery Models. Monograph
2: Queensland EHS Users' Profile (Queensland University of Technology: 2012)
<http://www.eprints.qld.edu.au/55587/> at 18 December 2012.
12 Chapter 1: Introduction
examined QAS activity-based data that had been captured over a ten-year period
between 2001 and 2010. As part of their analysis, the authors reported that 15,511
cases, or 2.4% of the total cases attended by QAS employed paramedics during the
2009-2010 financial year, had been coded in the QAS database as having refused
ambulance transport against paramedic advice.47 The authors did not report on the
clinical circumstances or demographic characteristics of patients that had refused,
nor did they examine how paramedics responded to a patient that refused to provide
consent for treatment and/or transport against their advice. These factors were
outside the scope of their study.
During the early phase of my doctoral candidature, I analysed refusal data that
had been collated by the QAS during the twelve-month period between 1 January
2011 and 31 December 2011.48 During that period, there were over 800,000 cases
attended by QAS paramedics, of which 70% had been categorised as either a code 1,
requiring an emergency response, or a code 2, which required an urgent response.49
The analysis was conducted to identify the number of cases involving a patient
refusal against advice, and to examine select epidemiological and demographic
characteristics of patients who refuse paramedic treatment and/or ambulance
transport in Queensland. The purpose of this analysis was to provide insight into the
frequency and circumstances in which Queensland paramedics are required to
manage such cases, and to provide background context to the principal questions in
this research project, namely, how paramedics respond to a patient who refuses
recommended treatment and/or transport; paramedic knowledge of the relevant law,
and their compliance with the law in their practice.
The contextual analysis of the QAS refusal data found a staggering 16,462
cases of refusal against paramedic advice were recorded during the twelve-month
period.50 This figure represents 2.67% of the total ambulance responses and
47 Ibid [Table 47]. The coding of a refusal case in the database referred only to refusal of ambulance
transport and did not include refusal of paramedic treatment. Some of the 15,511 patients who refused
transport may have provided consent and received paramedic treatment. 48 The findings of this analysis are reported in chapter 4 of this thesis. 49 Queensland Ambulance Service, Standard Operating Procedure: Response Priorities (2019). A
code 1 is categorized as an emergency with necessitates and immediate response with warning devices
activated. There are three code 1 sub-categories. A code 1A is ‘actual time critical’, a code 1B is
‘emergent time critical’ and a code 1C, ‘potential time critical’. A code 2 is categorized as an
immediate response without vehicle warning devices activated. 50 The findings of this analysis are presented in chapter 6.
Chapter 1: Introduction 13
amounted to an average of one patient refusing treatment and/or transport every 50
minutes of every day. The analysis also found that an overwhelming majority of
patients who refused paramedic treatment and/or transport, were suffering from a
medical complaint such as a neurological, cardiovascular, respiratory or
gastrointestinal condition; had been exposed to a traumatic event such as a road
traffic crash; had been the victim of a physical assault; or had suffered a fall.
The law recognises that an individual has a right to refuse medical treatment,
which would logically extend to include paramedic treatment and ambulance
transportation. The critical issue that paramedics must resolve is whether or not the
patient’s decision is lawfully valid.51 This necessarily requires that the paramedic
conduct an assessment that is focused on identifying if the legal requirements of a
valid decision have been satisfied.52 Little is known about how paramedics conduct
these assessments and what preparation they receive to equip them with the relevant
knowledge and the necessary skills required to manage a situation in which a patient
refuses treatment and/or transport against advice.53 What is known is that these
assessments are often performed against a backdrop of clinical uncertainty, in
circumstances where time may be a critical factor, and in a setting that can often be
chaotic and unpredictable.54
1.4 GAPS IN THE LITERATURE
In the previous section, a number of gaps in the literature were identified.
First, there is limited literature that has examined the epidemiological, demographic
and clinical based data relating to patients that refuse paramedic treatment. Whilst it
is recognised that a small number of studies conducted in jurisdictions outside
Australia offer some insight into the frequency, features and to some degree, clinical
51 Hunter and New England Area Health Service v A (2009) 74 NSWLR 88. 52 Queensland Law Reform Commission, A Review of Queensland's Guardianship Laws, Report No
67, 2010; Paul Appelbaum, 'Assessment of Patients' Competence to Consent to Treatment' (2007) 357
New England Journal of Medicine 1834. 53 Rachel Waldron, Cheri Finalle, James Tsang, Martin Lesser and Deborah Mogelof, 'Effect of
gender on prehospital refusal of medical aid' (2012) 43(2) Journal of Emergency Medicine 283. The
study examined the data from consecutive patients who had refused ambulance services recommended
by a hospital-based ambulance service in New York to determine if there was an association between
the gender of the paramedic and the patient's decision to refuse treatment. The authors noted that
while issues such as patient features and patient outcomes had been the subject of multiple studies in
the United States, there had been no studies examining the role of paramedics when responding to a
patient that had refused. 54 Steer, above n 3.
14 Chapter 1: Introduction
outcome of patients who refuse paramedic treatment and transport in other countries,
there have been no studies conducted in Australia that have examined this area of
paramedic practice in detail. This gap in the literature is discussed in greater detail in
Chapter 4, section 4.2 where the international literature, albeit limited, is reviewed.
Second, it was noted that there is a significant dearth of literature relating to the
role of paramedics in cases that involve a refusal of treatment. There are no studies
conducted either in Australia or elsewhere, that examine paramedics’ knowledge and
understanding of the regulatory framework in which decisions to refuse paramedic
treatment and/or ambulance transport are made.
Third, there is also no literature that has examined how paramedics respond to
a patient who refuses to provide consent for paramedic treatment and/or ambulance
transport against paramedic advice, and if that response complies with the law.
And whilst it will be demonstrated in Chapter 3, that there is an enormous body
of literature that has described, critiqued, analysed and applied the law that regulates
patient decisions to refuse medical treatment, there is no literature that has done so in
the context of paramedic practice.
These gaps in knowledge highlight the importance of this research project.
The research is necessary, not simply because it involves an area of paramedic
practice that has not been examined previously, it also involves decisions that go to
the core of patient autonomy: a patient’s legal and ethical right to make decisions
about their own health care and the paramedic’s obligation to understand, respect,
and determine if the patient’s right to refuse has been validly executed.
1.5 RESEARCH AIMS AND QUESTIONS
A person, for whom ambulance and paramedic services has been requested,
can convey their decision regarding the provision of paramedic treatment and
ambulance transport, in one of two ways. The decision can be conveyed
contemporaneously, that is, the decision is made spontaneously and conveyed to the
paramedic at the time that treatment options are being considered. Alternatively, the
decision can be made in advance whereby the patient provides a directive that
Chapter 1: Introduction 15
specifies treatment that they do not wish to receive, if the clinical circumstances at
some future time warrant the provision of that treatment.55
There is no published research that compares the number of contemporaneous
decisions regarding paramedic treatment and transport, with that of decisions made
and conveyed in the form of an advance directive. The circumstances that commonly
give rise to a request for ambulance and paramedic attendance are rarely planned and
are usually in response to an unforeseen incident or an acute health event.56 For the
purposes of this research, it is assumed, and anecdotally confirmed,57 that decisions
to refuse paramedic treatment and/or transport are predominately decisions that are
made contemporaneously and as such, the scope of this research will be limited to
contemporaneous decisions.
Contemporaneous decisions regarding medical and other health treatments are
regulated in Australia by the common law, which recognises that a competent adult
has a right to refuse treatment, even if the treatment is considered necessary to
prevent an otherwise avoidable death.58 Provided that the decision is valid, a
paramedic is required to respect the person's express wish.59 Failure to do so may
expose the paramedic to both criminal and civil sanctions.60
There are two requirements that must be met before a contemporaneous
decision to refuse treatment would be deemed to be valid. The first requirement is
that the person is competent or has sufficient decision-making capacity at the time
55 Such as an Advance Health Directive where the patient has provided earlier direction regarding
health matters for his or her future care. The directive will only operate if the patient has impaired
decision-making capacity at the time the paramedic is in attendance and seeking to ascertain the
patient’s wishes regarding paramedic treatment. See Powers of Attorney Act 1999 (Qld), s35. 56 Informal discussion with a Senior Executive of the QAS Clinical Quality and Patient Safety Unit,
Office of the Medical Director. Examples of common incidents include a road traffic crash, a work or
recreational related traumatic incident, or a sudden onset of an acute illness such as a cardiovascular
or neurological incident. 57 Ibid. 58 Re B (Adult: Refusal of Medical Treatment) [2002] 2 All ER 449; HE v A Hospital NHS Trust
[2003] 2FLR 408, 414. 59 See Hunter and New England Area Health Service v A (2009) 74 NSWLR 88. McDougall J
acknowledged that he had spoken in terms of medical treatment and hospitals and medical
practitioners however, the principles apply more broadly and include all those who administer medical
treatment 'including ambulance officers and paramedics' [41]. 60 Assault (criminal sanction) and trespass to person (civil sanction). See for example: Re T (Adult:
Refusal of Medical Treatment) [1992] 4 All ER 649; Hunter and New England Area Health Service v
A (2009) 74 NSWLR 88; Brightwater Care Group (Inc) v Rossiter [2009] WASC 229.
16 Chapter 1: Introduction
that the decision is made.61 The second requirement is that the decision must be
made voluntarily and be free from undue influence.62 In addition to these two
requirements, paramedics are also required to provide the patient with information
regarding the nature and potential consequences of their decision to refuse treatment
and transport to a hospital.63
The test to determine decision-making capacity is a test at law however, the
assessment of capacity in circumstances where a patient refuses paramedic treatment
and/or ambulance transport, must necessarily be carried out by the paramedic at the
scene.64 The assessment of capacity can be complex and, in some circumstances,
difficult to apply. This is evidenced by the differing opinions offered by medical
practitioners and noted by jurists65and academic commentators.66 In addition to any
inherent difficulties in making these determinations, there are a number of factors
that are unique to the pre-hospital environment that may serve to compound the
complexity and difficulty that paramedics experience when conducting these
assessments.67
The paramedic is unlikely to know the patient or to have had any prior contact
in a professional capacity and will therefore be unfamiliar with the patient's usual
demeanour, their values, wishes and general level of understanding about matters
relevant to their health decisions.68 According to Cone et al,69 consulting with the
patient's family and friends may be helpful in this regard however, in the absence of
61 Re B (Adult: Refusal of Medical Treatment) [2002] 2 All ER 449. The law relating to decision-
making capacity Chapter 3, Section 3.4.1 of this thesis. 62 Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649. 63 Brightwater Care Group (Inc) v Rossiter (2009) 40 WAR 84. 64 The paramedic may be the only health professional in attendance. In some ambulance services, the
paramedic may have telephone or radio access to a medical practitioner for consultation purposes. In
the United States, this is referred to as 'on-line medical command'. See: Cone et al, above n 36;
David Stuhlmiller, Michael Cudnik, Scott Sundheim, Melinda Threlkeld & Thomas Collins, (2005)
'Adequacy of Online Medical Command communication and Emergency Medical Services
Documentation of Informed Refusals' 12 Academic Emergency Medicine 970. 65 Noted by Thorpe J in Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290. 66 See Malcolm Parker, 'Judging capacity: Paternalism and the risk-related standard' (2004) 11 Journal
of Law and Medicine 482, 491. The author raises concern regarding possible inconsistencies between
legal requirements and assessment procedures and findings of health professionals tasked with
assessing decision-making capacity. 67 Stuhlmiller et al, above n 64; Steer, above n 3. 68 Stuhlmiller et al, above n 64. Robert Palmer and Kenneth Iserson, 'The critical patient who refuses
treatment: an ethical dilemma' (1997) 15 (5) The Journal of Emergency Medicine, 729. 69 Cone et al, above n 36.
Chapter 1: Introduction 17
input from others, the paramedic will need to rely exclusively on their brief
interaction with the patient and their interpretation of that interaction.70
According to Steer,71 the scene at which these interactions take place can often
be volatile and the patient uncooperative, making it impossible to obtain any details
that would aid in the assessment of the patient's cognitive function and ability to
understand.72 There may also be uncertainty regarding the seriousness of the
patient's condition and the gravity of risk to which the patient may be exposed should
treatment not be implemented or further clinical assessments undertaken in a hospital
setting.73
Cone et al74 points out that patients who refuse ambulance transport often
refuse to allow the paramedic to conduct a clinical assessment in which case, the
paramedic's decision-making is informed only by the verbal interaction that has taken
place between the paramedic and the patient, the paramedic’s observations of the
scene, and information that may be provided by witnesses to the event.75 In many
cases, the time in which these assessments are to be conducted and decisions are to
be made, is absolutely critical.76
In addition to decision-making capacity, the patient’s decision to refuse
paramedic treatment and/or transport must be a voluntary decision that is free from
coercion or undue influence.77 Decisions regarding health care are often made in
circumstances where there is some degree of influence exerted by others, such as
family members and friends who are providing support to the patient during their
illness or at the scene of an unexpected incident or accident.78
One area of the common law that requires clarification is that which relates to
the provision of information regarding paramedic treatment and transport that has
been proposed, and the consequences of the decision to refuse. It has been suggested
that a contemporaneous decision to refuse treatment cannot be respected unless and
70 Cone et al, above n 36, 26. 71 Steer, above n 3. 72 Steer, above n 3, 2. 73 Ibid. 74 Cone et al, above n 36. 75 Ibid 26. 76 Palmer & Iserson, above n 68. 77 Re: T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649. 78 Ibid, 669. The law relating to voluntariness is discussed in Chapter 3, Section 3.4.2 of this thesis.
18 Chapter 1: Introduction
until the patient has been provided with this information.79 However, there is a
division of opinions in this regard, both judicially and in academic commentary.80
The provision of information about paramedic treatment, including the various
options, risks and consequences of no treatment or transport to a hospital, is clearly a
relevant factor from both a clinical and legal perspective. What is not clear is how
the law treats the provision of information in circumstances where a person has made
a contemporaneous decision to refuse, and in circumstances where the person has the
capacity to receive information, consider it, and thereafter, make an informed
decision.81
The principal objective of this study was to develop knowledge relating to
paramedic decision-making when responding to a situation in which a patient has
refused treatment and/or transport against the paramedic’s advice.
The objective was achieved by first examining paramedic knowledge of patient
decision-making, and their understanding of the law that regulates decisions to refuse
paramedic treatment and ambulance transport. Thereafter, paramedic practice was
examined to determine if the manner in which paramedics responded to a patient
who refused treatment or transport complied with the law.
There are five research questions that guided the conduct of this research and
achievement of the objective.
Research Question One
How frequently are paramedics required to respond to a refusal of recommended
treatment and /or transport and in what circumstances?
Many relevant factors must be considered when seeking to understand the
context in which paramedic decision-making takes place when responding to a
79 Re B (Adult: Refusal of Medical Treatment) [2002] 2 All ER 449. See discussion in Michael Eburn,
'Withdrawing, Withholding and Refusing Emergency Resuscitation' (1994) 2 Journal of Law and
Medicine, 131. Sabine Michalowski, 'Advance Refusals of Life-Sustaining Medical Treatment: The
Relativity of an Absolute Right' (2005) 68 Modern Law Review 958. Alan Rothschild, 'Capacity and
medical self-determination in Australia' (2007) 14 Journal of Law and Medicine 403. 80 Hunter and New England Area Health Service v A (2009) 74 NSWLR 88. H Ltd v J & Anor [2010]
SASC 176. Lindy Willmott, Ben White and Michelle Howard, 'Refusing advance refusals: Advance
directives and life-sustaining medical treatment' (2006) 30 Melbourne University Law Review 211. Ian
Freckelton, Patients' decisions to die: The emerging Australian jurisprudence' (2011) 18 Journal of
Law and Medicine 427. 81 See Chapter 3, Section 3.5 for detailed discussion regarding the law relating to the provision of
information to a patient in these circumstances.
Chapter 1: Introduction 19
patient refusal. These include the frequency with which paramedics respond to cases
involving a refusal of treatment and/or transport; the physical setting; the time of day
or night in which these decisions are made; the age of the patient who is refusing;
and the clinical circumstances such as the nature of the patient’s condition.
In order to answer this question and provide relevant contextual information, a
retrospective analysis of de-identified QAS patient data was conducted, and all
‘refusal of transport against advice’ cases during the 2011 calendar year were
examined. The findings of this contextual analysis are presented in Chapter Four.
Research Question Two
What is the law that would apply in circumstances where a patient refuses paramedic
treatment and/or transport?
Understanding the regulatory framework in which these decisions are made is
fundamental to the questions regarding paramedic’s knowledge of the law and how
they respond to a patient that has refused treatment and if that response complies
with the law.
The law that governs the refusal of medical treatment was analysed and
contextualised from the perspective of a refusal of paramedic treatment and/or
ambulance transport. The analysis of the law in this context considered the
relationship between a paramedic and their patient at the time these decisions are
made; the potentially unpredictable environment in which paramedic practice takes
place; and the time critical circumstances in which decisions about paramedic
treatment and ambulance transport are made and conveyed. This contextual analysis
of the law is presented in Chapter Three.
Research Question Three
What do paramedics understand of the law relating to patient decision-making and
refusal of paramedic treatment and/or ambulance transport?
The level of knowledge and understanding of the law and the regulatory
framework in which decisions regarding paramedic treatment and transport are made,
will undoubtedly guide the paramedic’s response to the patient, and influence the
clinical direction that the paramedic will seek to implement. In order to assess
paramedic’s knowledge of the law, semi-structured interviews were conducted for a
20 Chapter 1: Introduction
group of 30 paramedics. Preceding the interviews, the views of senior paramedics
were sought and obtained during three focus group discussions. These opinions
provided valuable insight and helped to frame the questions that were subsequently
asked of individual paramedics.
In order to elicit information regarding paramedics’ knowledge of the law,
participants were asked open-ended questions about how they would generally
manage a situation involving a patient who refused. Participants responded and
raised several issues with very little need for prompting or interjection. The opinions
expressed by focus group participants, and the findings of the paramedic interviews
as they relate to paramedic knowledge, are presented in Chapter Five (Overview of
Findings and Initial Response Applied), Chapter Six (Decision-making Capacity),
Chapter Seven (Voluntary Decisions), and Chapter Eight (Provision of Information).
An awareness of paramedics’ knowledge and understanding of the law was
relevant when addressing research Question Six, the findings of which are presented
in Chapter Nine (Key Findings and Discrepancies between Law, Knowledge and
Practice) and framing recommendations from this research project which are
presented in Chapter Ten (Conclusions Discussion and Opportunity for Further
Research).
Research Question Four
What is the process that is applied by paramedics to determine if the patient’s
decision to refuse paramedic treatment and / or ambulance transport is valid?
Research Question Five
To what extent does the process applied by paramedics (to determine if a patient’s
decision to refuse is valid) comply with the law?
Research questions four and five were addressed together.
As noted earlier in this chapter, there is a gap in knowledge regarding how
paramedics respond to a patient who refuses treatment and transport; what process
they apply; what assessments they undertake; what factors influence their clinical
decision-making; the clinical direction they ultimately implement; (these factors are
collectively referred to as ‘paramedic practice’) and whether that direction complies
with the law. In order to elicit information regarding paramedic practice, the
Chapter 1: Introduction 21
opinions of focus group participants were initially sought followed by individual
paramedic interviews. The thirty paramedics who participated in an individual
interview were asked to discuss a specific case that they had attended (‘the interview
case’) and which had been identified during the purposive selection of interview
participants.82 Participants were also invited to reflect upon other cases that they had
attended in which the clinical circumstances may have differed from those in the
interview case. The opinions expressed by focus group participants, and the findings
of the paramedic interviews as they related to paramedic practice, are presented in
Chapter Five (Overview of the Findings and Initial Process Applied), Chapter Six
(Decision-making Capacity), Chapter Seven (Voluntary Decisions), and Chapter
Eight (Provision of Information).
The question as to whether paramedic practice complied with the law, was
determined by comparing the findings relating to practice, with the contextual
analysis of the law as presented in Chapter Three. The findings as they relate to
compliance with the law are also presented in the aforementioned chapters.
1.6 OVERVIEW OF THE RESEARCH DESIGN
In order to provide the necessary contextual background to address the research
questions outlined above, and ultimately develop knowledge regarding paramedic
decision-making when a refusal of treatment and/or transport takes place, the study
was designed to incorporate three stages and three methodological approaches.
A quantitative methodology was selected to determine the frequency and
circumstances in which patient refusals take place in Queensland and to provide
insight into the epidemiological and demographic characteristics of patients who
refuse paramedic treatment and transport. Legal-doctrinal methodology was used to
analyse and describe the law that governs refusal of paramedic treatment and
transport, and a qualitative methodology was selected as the methodological
framework to underpin the major component of the research that examined the
interaction that takes place between a paramedic and a patient at the time that a
refusal occurs. In this later area of the research, focus group discussions, individual
paramedic interviews and documentary sources were used to collect data.
82 Details regarding the purposive selection of interview participants are discussed in chapter 2 of this
thesis at section 2.5.3.1.
22 Chapter 1: Introduction
The first stage in the research process was to conduct a contextual analysis of
the law that regulates patient decision-making in health care. A legal doctrinal
methodology was used to analyse the literature (law, policy and practice) and
describe the legal framework in which decisions to refuse health care are made. The
analysis and subsequent description were contextualized so as to reflect the unique
environment and clinical circumstances in which it is to be applied, by paramedics,
when responding to a patient who refuses paramedic treatment and/or ambulance
transport to a hospital against advice.
The second stage in the research process was to conduct a contextual analysis
of ambulance service activity to identify the incidence of patient refusals against
advice, and the epidemiological and demographic characteristics of patients who
refuse treatment and transport. This stage of the research involved a quantitative
analysis of refusal data collated by the QAS over a period of one calendar year.
All cases during the 2011 calendar year to which an ambulance was
dispatched, and no ambulance transport was subsequently provided, were identified
for review.83 Those cases in which the attending paramedic recorded that the patient
had 'refused ambulance transport against paramedic advice' were selected and the
data relating to each case was copied to a MS-Excel spread sheet. Identifying details
of the patient and the attending paramedic were removed prior to the transfer of the
data from the database to the MS-Excel spread sheet.
Data were analysed to determine the mean age of patients; the percentage of
males and females in each age group; the geographical location of the patient
according to three broad categories (private residence; public place and health
facility); the time of day (day or night); the clinical nature of the case as initially
determined by the attending paramedic; and the final clinical assessment made by the
paramedic.
The third stage of the research and principal area of this study, explored the
complexities of the interaction that takes place between a paramedic and a patient
83 The QAS collects data regarding patients that refuse ambulance transport against advice, but does
not collect data regarding patients that refuse paramedic treatment. It is possible that a patient could
refuse treatment but consent to transport, or consent to treatment but refuse transport. According to
anecdotal information provided by the Senior Manager, Clinical Quality and Patient Safety Unit, the
latter is more prevalent than the former.
Chapter 1: Introduction 23
when a refusal of treatment and/or transport occurs. The lack of existing knowledge
relating to paramedics and how they respond to a patient in these circumstances, their
knowledge of the law that regulates patient refusal of health care, and if their
response complies with the law, led to the identification of constructivist grounded
theory as the appropriate qualitative research methodology for this study.84
Grounded theory is underpinned by symbolic interactionism, which focuses on
the interactions between individuals, such as a paramedic and their patient, and the
subjective meaning that they attribute to both the interaction and the setting in which
it takes place.85 Constructivist grounded theory adds a third dimension to the research
process, that being the researcher, and their knowledge, insight and awareness of the
research area, and their capacity to interpret and give meaning to the words and
actions of the research participants during the research process.86
Data collection methods employed during this phase of the research involved
focus group discussions, examination of de-identified QAS patient records, and
semi-structured interviews with individual QAS employed paramedics.
Ethical clearance to conduct this research project was obtained from the
Queensland University of Technology (QUT) Research Ethics Unit following
approval granted from the University Human Research Ethics Committee (UHRC).
Approval was granted on 17 October 2015 (Ethics Application: 1300000581).
Details regarding the ethical issues that were considered relevant to this research and
how they were addressed are discussed in Chapter 2 of this thesis at section 3.5.
The contextual analysis of QAS refusal data was reviewed by the QUT
Research Ethics Unit and deemed to be exempt from the requirement of ethical
84 John Cresswell, Qualitative Inquiry and Research Design: Choosing Among Five Approaches (Sage
Publications, London: 2007); Jemma Skeat and Alison Perry, ‘Grounded theory as a method for
research in speech and language therapy’ (2008) 43 (2) International Journal of Language and
Communication Disorders 95, 97. 85 Uwe Flick, An Introduction to Qualitative Research (Sage Publications, London: 4th
ed, 2009), 66; Pranee Liamputtong, Qualitative Research Methods (Oxford University Press,
Australia: 3rd ed, 2009) 19. 86 Anselm Strauss and Juliette Cobin, Basics of Qualitative Research: Grounded Theory Procedures
and Techniques (Sage Publications, Newbury Park: 1990); Juliette Corbin and Anselm Strauss, Basics
of Qualitative Research: Grounded Theory Procedures and Techniques (Sage Publications, Thousand
Oakes: 4th ed: 1998) 28; Kathy Charmaz, Constructing Grounded Theory: A Practical Guide Through
Qualitative Analysis (Sage Publications, London: 2006), 9; Jane Mills, Anne Bonner and Karen
Francis, ‘Adopting a constructivist approach to grounded theory: Implications for research design’
(2006b) 12 International Journal of Nursing Practice 8, 10.
24 Chapter 1: Introduction
clearance on the basis that the data and the analysis thereof, was research that
involved a negligible risk of harm (as defined in the National Statement on Ethical
Conduct in Human Research) and the use of an existing collection of records that
contain only non-identifiable data about human beings.
1.7 SCOPE OF THE THESIS
This thesis examines the frequency and circumstances in which patients refuse
paramedic treatment and/or ambulance transport, describes the law that regulates
patient decision-making in the context decisions to refuse paramedic treatment, and
investigates paramedics’ knowledge and application of the law when responding to a
patient’s decision to refuse.
In accordance with the definitions applied by the QAS, paramedic treatment
involves the conducting of a clinical assessment, interpretation of assessment
findings, and/or the provision of treatment such as the administration of oxygen
therapy, pharmacological agents, or carrying out a therapeutic procedure. Transport
relates only to the physical transportation of a patient, in a QAS vehicle, to a hospital
or health facility, which also includes a medical practitioner’s surgery. Consent or
refusal of ambulance transport cannot be construed to mean that the patient is also
providing consent for, or rejection of clinical assessments and treatment that may be
performed at a hospital or health facility once the patient has arrived at the facility.
There are several issues that are closely associated with these topics but are
not addressed in this thesis. These issues are identified below:
1. Treatment and/or transport refusals initiated by a parent in relation to their
children.
Decisions in relation to children raise complex ethical and legal issues.87
Parental responsibilities include making decisions for their child that is in the child’s
best interest, which in some cases, may conflict with the parent’s views or wishes.
The focus of this thesis is adult patients and their decision to refuse paramedic
treatment and/or transport. Decisions made by parents in relation to their child are
not included in this thesis.
87 Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case) (1992)
175 CLR 218, 240; Re Alex (2004) 180 FLR 89.
Chapter 1: Introduction 25
2. Treatment and/or transport refusals initiated by a substitute decision-maker in
relation to an adult with impaired decision-making capacity.
A substitute decision maker is authorised to make health decisions for and on
behalf of an adult who has impaired decision-making capacity.88 The focus of this
research is to examine how paramedics respond directly to a patient for whom their
assistance has been requested, and not a substitute decision-maker. Decision made by
substitute decision-makers in relation to an adult person with impaired decision-
making capacity, are not included in this thesis.
3. Treatment and/or transport refusals that are made in advance
The circumstances that commonly give rise to a request for ambulance
services and paramedic assistance are rarely planned and are usually in response to
an unforeseen incident or an acute health event. Decisions to refuse paramedic
treatment and/or transport are predominately decisions that are made
contemporaneously. The scope of this research is limited to contemporaneous
decisions. Decisions made in advance will not be considered in this thesis, nor will
prior contemporaneous decisions in which the patient’s clinical condition and
decision-making a capacity have subsequently altered.
4. Paramedic documentation of refusal cases
The thesis examines how paramedics respond to patients that refuse treatment
and/or transport and their knowledge and application of the law. It does not examine
the standard of paramedics’ clinical documentation, or paramedics’ selection of the
clinical code that most appropriately represents the nature of the case.
5. The lawful basis for the provision of information to patients that refuse
paramedic treatment and/or transport.
The common law requires that a health professional provide a patient with
information about their condition and risks. This duty is founded in the law of
negligence. However, one area of the common law that requires clarification is
whether the provision of information to a patient is also a pre-requisite of a valid
decision to refuse. This thesis does not contribute to the debate regarding the
provision of information in this context. The thesis does however examine why
88 Guardianship and Administration Act 2000 (Qld), s66(4)(5).
26 Chapter 1: Introduction
paramedics provide information to patients, the content of that information, and what
they understand of the law as it relates to this area of their practice.
Paramedics consider it necessary to provide a patient with relevant information
so that the patient can make the best possible decision for him or herself. They are,
in this respect, facilitating autonomy. Paramedics also believe that the provision of
information is necessary to enable an assessment and determination of the patient’s
decision-making capacity, which is relevant to the validity of the patient’s decision to
refuse. Whilst the provision of information of itself, may not be a pre-requisite for a
valid decision, the provision of information is necessary to address other elements of
a valid decision. It is the provision of information in this context that is examined in
the thesis, the findings of which may contribute in a practical way to the ongoing
debate regarding the lawful basis upon which information should be provided.
1.8 STRUCTURE OF THE THESIS
The following presents an overview of the thesis, which has been organised into four
parts and ten chapters.
THESIS STRUCTURE
PART ONE: INTRODUCTION, JUSTIFICATION AND OVERVIEW OF
THE REARCH
Chapter 1 Introduction
Chapter 2 Methodology and Research Design
PART TWO: CONTEXTUAL ANALYSIS OF LAW AND PRACTICE
Chapter 3 The Regulatory Framework and Refusal
of Paramedic Treatment and Ambulance
Transport
Chapter 4 Epidemiological and Demographic
Characteristics of Patients who Refuse
Paramedic Treatment and Ambulance
Transport
PART THREE: FINDINGS – PARAMEDIC KNOWLDEGE AND
APPLICATION OF THE LAW
Chapter 5 Overview of Findings and Initial Process
Applied
Chapter 6 Decision-making Capacity
Chapter 7 Voluntary Decision
Chapter 8 Provision of Information
Chapter 1: Introduction 27
Chapter 9 Key Findings and Discrepancies between
Law and Practice
PART FOUR: CONCLUSIONS AND DISCUSSION
Chapter 10 Conclusions, Discussion and Opportunity
for Further Research
Part One, Introduction, Justification and Overview of the Research, consists
of this current Chapter (Chapter One) and Chapter Two. In this current Chapter, the
reader has been introduced to the research problem and provided with background
information detailing the history of the problem and the clinical research that has
been conducted examining various aspects of the topic in jurisdictions outside
Australia. The Chapter also identifies the dearth of research regarding paramedic
knowledge and application of the law that regulates decisions to refuse. The aims and
scope of the research have been discussed, and the specific research questions have
been identified, followed by a brief discussion regarding how each question was
addressed. The research design has been introduced and the methods that have been
adopted have been justified. The Chapter concludes with references to the
significance of this research and the original contribution that it will make to
knowledge in this field.
The methodology and research design is presented in Chapter Two. The
research topic is complex and multifaceted, and in order to address these
complexities, the research project was designed to incorporate a combination of three
methodological approaches. Legal doctrinal methodology guided a contextual
analysis of the law, which was necessary to inform both the collection of relevant
interview data, and the analysis of that data as it was obtained. A quantitative
methodology followed, and this facilitated the contextual analysis of de-identified
patient refusal data collated by the QAS. The analysis of this data provided valuable
insight into the frequency and characteristics of patients who refuse paramedic
treatment and transport. A qualitative methodology was selected to frame the
principal component of this research project: the examination of paramedic
knowledge and application of the law that regulates decisions to refuse, and whether
their practice complies with the law. The Chapter provides a rationale for selecting
constructivist grounded theory as the qualitative methodological framework for
conducting this phase of the research and details the research methods that were
28 Chapter 1: Introduction
used: selection and recruitment of participants; data collection; data analysis; and
evaluation of the research. The ethical considerations of the research and ethical
clearance process are also discussed in this Chapter.
Part Two, Contextual Analysis of Law and Practice presents the findings of
two highly significant contextual analyses in Chapter Three and Chapter Four, the
findings of which frame this research, and provide essential and valuable insight into
the research problem.
Chapter Three presents the findings of the law governing contemporaneous
decisions to refuse treatment and transport, the ethical principles that underpin the
law, and the legal requirements of a valid decision to refuse. The requirement that a
patient has the requisite decision-making capacity at the time the decision is made,
and the related principles of presumption of capacity and gravity of risk, are
explored. The voluntary nature of the decision to refuse is examined, as is the
definition of undue influence in the context of a decision to refuse paramedic
treatment. The area of law that relates to the provision of information lacks certainty
and has been the subject of debate, both judicially and in academic commentary.
This uncertainty is examined in the context of contemporary decisions to refuse
paramedic treatment and/or transport and in circumstances where the patient may
have no knowledge of the existence of an injury or illness until moments before the
request for paramedic assistance was lodged with the ambulance service.
Chapter Four presents the findings of the contextual analysis of QAS refusal
data, which was conducted to provide insight into the frequency and circumstances in
which patients refuse paramedic treatment and/or transport in Queensland. The
analysis found that a total of 16,462 patients refused paramedic treatment and/or
transport during the 2011 calendar year. This number represents 2.67% of the total
number of patients that the QAS attended during that period, and computes to a
refusal every 50 minutes of each day during that twelve-month period.
The key findings of this contextual analysis suggest that the cohort of patients
who refuse treatment and/or transport is not significantly different from the general
patient population in terms of their age, gender and location of incident. The
majority of refusals occur at a private residence, which suggests that the patient, or
someone that is known to the patient, made the request for paramedic assistance.
The overwhelming majority of patients who refused were noted to be suffering from
Chapter 1: Introduction 29
a medical complaint such as a cardiovascular, neurological, gastrointestinal or renal
condition, or had sustained a traumatic injury from either a vehicle collision, an
assault, or a fall.
Part 3, Paramedic Knowledge and Application of the Law presents the
findings of the research as they relate to paramedic knowledge and application of the
law in Chapters Five to Nine inclusive.
Chapter Five introduces Part 3 of the thesis, which details the findings of this
research. The Chapter provides an overview of the findings relating to paramedics’
knowledge and application of the law that regulates patient decisions to refuse
treatment and/or transport. The chapter commences with a brief overview of the
education of paramedics in Queensland and a review of the QAS procedural
guidelines that relate to this topic, both of which will provide additional and relevant
context to the findings. The chapter then provides an overview of the findings of the
three focus group discussions followed by the thirty individual paramedic interviews,
identifying the common categories that were grounded in the data, and which will be
addressed in the chapters that follow. Before concluding Chapter Five, a category
that emerged from the focus group discussions, ‘identifying a true refusal’ is
presented and discussed. Aspects of this category are beyond the scope of this
research however the findings were seen to be both significant and beneficial for
ambulance service providers and for this reason it has been included with
recommendations for further research. The findings of a category from the paramedic
interviews, ‘initial process applied’ is also provided at the conclusion of Chapter
Five.
Chapter Six presents the findings of the research relating to paramedic
knowledge and application of the law in the category ‘decision-making capacity’.
The chapter reviews the principles of ‘presumption of capacity’ and ‘gravity of risk’
in the context of paramedic practice and examines paramedics’ understanding and
consideration of both principles when responding to a patient that has refused. The
chapter then explores the process that paramedics adopt when assessing a patient’s
decision-making capacity under the following headings: take in and retain treatment
information; comprehend and process the information; and ability to communicate
their choice. The chapter concludes by identifying one area of paramedic practice
relating to this area that is inconsistent with the law: decisions about capacity in
30 Chapter 1: Introduction
circumstances where the patient is exposed to a high degree of clinical risk and
capacity cannot be assessed, or if assessed, cannot be determined. This discrepancy is
further explored in Chapter Nine.
The presentation of the findings as they relate to paramedic knowledge of, and
compliance with, the law continues in Chapter Seven, where the category ‘voluntary
decision’ is explored. In this chapter, the difference between acceptable influence
and undue influence is examined and is done so in the context of ‘third party’
influence (family members and friends), and ‘paramedic’ influence during the
patient’s decision-making process. The chapter then presents the findings of the
research as they relate to paramedic knowledge and application of the law in this
area. The chapter concludes by identifying a discrepancy between the law and
paramedics’ understanding of undue influence and how that has impacted their
practice. This discrepancy is then further explored in Chapter Nine.
The presentation of the findings continues in Chapter Eight, where the
provision of information to a patient who has refused treatment and/or transport is
considered. The law in this area is yet to be settled. Paramedics nevertheless provide
patients with information and this chapter presents the findings regarding the nature
of information that is provided, the manner in which it is provided, and paramedics’
understanding of the legal basis upon which information is provided to patients who
refuse treatment.
Chapter Nine summarises the key findings of the research, discusses the
discrepancies that were found between law, paramedic knowledge and paramedic
practice, and offers explanations as to why these discrepancies exist. The first
discrepancy between law and practice relates to the assessment of decision-making
capacity and the application of the ‘gravity of risk’ principle in cases involving a
patient who is exposed to a high level of clinical risk, and where the determination of
the patient’s level of decision-making capacity is not possible. The second area of
discrepancy relates to the requirement of voluntariness and paramedics unduly
influencing patients to revoke their decision to refuse treatment and/or transport.
Chapter Ten concludes with a comprehensive summary and discussion of the
findings as they relate to each of the five research questions. The chapter also
presents the implications and recommendations that emerge from the research,
Chapter 1: Introduction 31
discusses the limitations, and concludes with identifying three areas in which further
research should be conducted.
Chapter 2: Methodology & Research Design 33
Chapter 2: Methodology & Research
Design
2.1 INTRODUCTION
An important component of any research is the identification of the appropriate
theoretical framework that will underpin the principles and philosophy adopted by
the researcher and guide the research process. This chapter will begin with an
overview of the methodologies that were selected to undertake this study, and
consideration of why a combination of three methodological approaches was
selected.
The chapter then provides a discussion regarding constructivist grounded
theory methodology, which is the principal methodology used in this research
project. The discussion includes justification for why this methodology was
preferred over other qualitative research methodologies and how it guided the
research process.
The research design and the methods that were used to investigate each of the
five research questions follow. The various methods used to collect data are
discussed, and in the case of focus group discussions and individual interviews, how
the participants were selected and recruited. Details regarding the data analysis
procedures that were used are then provided. The chapter concludes with a
discussion of the ethical considerations that were relevant to this research, and how
they were addressed.
2.2 THEORETICAL FRAMEWORK
The objective of this research project was to develop knowledge relating to
paramedic practice when responding to a situation in which a patient refuses
paramedic treatment and/or ambulance transport against their advice; their
knowledge of the law; if their practice accords with the law; and the possible causes
of identified discrepancies between that which is required under the law and that
which is applied.
34 Chapter 2: Methodology & Research Design
The research questions were introduced in Chapter 1 and for ease of reference,
are repeated here.
1. How frequently are paramedics required to respond to a refusal of
recommended treatment and/or transport and in what circumstances?
2. What is the law that would apply in circumstances where a patient refuses
ambulance treatment and/or transport?
3. What do paramedics understand of the law relating to patient decision-
making and refusal of ambulance services?
4. What is the process applied by paramedics to determine if a patient has the
capacity to refuse treatment and/or transport and that the decision to refuse
is valid?
5. To what extent does the process applied by paramedics (to determine if a
patient’s decision to refuse is valid) comply with the law?
The topic is complex and multifaceted. In order to address these complexities,
the research project was designed to incorporate a combination of three
methodological approaches including quantitative, legal doctrinal and qualitative
research methods. The combination of methodologies in this way is viewed as
‘mixed method research’, and whilst mixed method generally involves both
quantitative and qualitative methodologies used in a single study or series of
studies,89 the research questions that were explored in this study warranted the
addition of a third methodology, legal doctrinal methodology.
Some commentators argue that it is not possible or desirable to combine
methodologies as they evolve from separate and incompatible paradigms. Others
take a far more pragmatic view and dismiss these concerns if the combination allows
for the research question/s to be effectively addressed.90 Combining qualitative,
quantitative and legal doctrinal methodologies in this study offered a means by
which each of the research questions could be answered, and knowledge relating to
paramedic practice when responding to patient refusals, could be constructed.
89 John Creswell and Vicki Plano Clark, Designing and Conducting Mixed Methods Research (Sage
Publications, London: 3rd ed: 2018) 34. 90 Shema Tarig and Jenny Woodman, ‘Using mixed methods in health research’(2013) 4 (3) Journal
of the Royal Society of Medicine < https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3697857/ > at 17
February 2017.
Chapter 2: Methodology & Research Design 35
Quantitative Methodology
The quantitative methodological approach was selected to analyse
epidemiological, demographic and activity-based data collated by the QAS to
determine the frequency and circumstances in which Queensland paramedics respond
to a situation involving a patient refusal. There have been several studies conducted
in North America and the United Kingdom91 that have produced knowledge
regarding the frequency and demographic characteristics of patients who refuse
ambulance transport in those countries. This analysis of Queensland based data was
undertaken to provide necessary contextual background to the research topic, and to
produce comparative data that relates to an Australian ambulance service provider.
A quantitative methodological approach was considered appropriate to address
the research question relating to the epidemiological and demographic characteristics
of patients who refuse paramedic treatment and transport, albeit for contextual
purposes. Originating in the natural sciences, quantitative research stems from a
positivist paradigm, which is based on a belief in rules, laws, and an insistence on
objectivity.92 Positivism supports the notion that reality is capable of being measured
in such a way that delivers reliable findings. The role of the researcher in a
quantitative study is to measure, explain and predict trends using precise sampling
and statistical analysis of data.93
Legal Doctrinal Methodology
The interaction between a patient and a paramedic in the context of a patient
refusal of paramedic treatment and ambulance transport, takes place within a legal
framework. Legal doctrinal methodology was used to facilitate a systematic review
of the law relating to patient decision-making and refusal of health care, and
thereafter, to analysis and describe the law in the context of a decision to refuse
paramedic treatment and/or transport. An analysis and description of the law in this
context is unique in that it considers the relationship between paramedic and patient
during the decision-making process, and other factors that may be relevant, such as
91 Cain et al, above n 48. 91 Ibid; Marks et al, above n 39; Shaw et al, above n 39. 92 Neil Thompson, Theory and Practice in Health and Social Care (Milton Keynes, Open University
Press: 1995) 62. 93 R. Burns, Introduction to Research Methods, (Frenchs Forest, Longman: 4th ed: 2000).
36 Chapter 2: Methodology & Research Design
the practice environment and the time critical circumstances in which these decisions
are made.
A doctrinal methodology involves the tracing and review of legal precedent
relating to a particular area of the law, the interpretation of relevant legislation, and
the critical analysis of both the case law and legislation to determine how the law is
to be applied in the specific social setting for which it was intended.94 The priority of
legal doctrinal methodology is to gather, organise and describe the legal rules; offer
commentary upon a particular area of the law; and expose ambiguities,
inconsistencies and gaps that may exist within that law as it relates to refusal of
paramedic treatment.95
Qualitative Methodology
The issues that are potentially relevant to the interaction between a paramedic
and patient at the time that a decision to refuse treatment is conveyed, may be wide
ranging and may vary depending upon the circumstances in which the refusal takes
place. There is little information available in the literature that provides insight into
how paramedics manage these situations, including their understanding of the law
that governs decisions to refuse treatment; how they apply this law; and the
difficulties and challenges that they may encounter as they attempt to do so.
A qualitative research methodology and data collection methods that included a
combination of focus group interviews, document analysis and individual paramedic
interviews, was considered appropriate for this research project.
Qualitative research evolved from both interpretivist and constructivist
paradigms, which acknowledge that there are multiple truths and realities that are
capable of being discovered through careful exploration. Qualitative research is
more flexible in its approach than quantitative research methods and is therefore
more suited to a study that is seeking to understand the experiences of individuals
and the meaning that they attribute to those experiences.96
94
Terry Hutchinson, ‘The Doctrinal Method: Incorporating Interdisciplinary Methods in Reforming
the Law’ (2015) 3 Erasmus Law Review 130, 136. 95 Michael Salter and Julie Mason, Writing Law Dissertations: An Introduction and Guide to the
Conduct of Legal Research (Pearson Longman: Harlow, 2007) 49. 96 Liamputtong, above n 85, xi.
Chapter 2: Methodology & Research Design 37
Grounded theory is a qualitative research methodology and considered an
appropriate choice where there is little known about the research topic.97 The intent
of a grounded theory study is to ‘generate or discover a theory that explains a
concept, or interaction among individuals’.98 The research process involves the
collection of data, usually by way of individual and/or focus group interviews, and
the constant and comparative analysis of the data that is collected. The analysis
informs the ongoing collection of data, and ultimately, the development of theory,
which is firmly grounded in the data.99
The lack of existing knowledge relating to paramedics and how they respond to
a patient who has refused paramedic treatment and ambulance transportation, led to
the identification of grounded theory as the appropriate research methodology for
this study. Whilst theories do exist in relation to the broader topic of refusal of
medical treatment, they are founded in other disciplines and have emerged from
different practice settings and cannot be readily applied to explain the interaction
between a paramedic and patient in the unique practice setting, and often time-
critical circumstances in which this interaction takes place.100
Grounded theory is underpinned by symbolic interactionism, which focuses on
the interactions between individuals and the subjective meaning that they attribute to
both the interaction and the setting in which it takes place.101
There are many variations of grounded theory methodology, each of which
espouses different ontological102 and epistemological103 perspectives. An
understanding of symbolic interactionism and the philosophy of thought upon which
97 Skeat and Perry, above n 84, 97; John Cresswell, Qualitative Inquiry and Research Design:
Choosing Among Five Approaches (Sage Publications, London: 2007). 98 Delbert Miller & Neil Salkind, Handbook of research design and social measurement (Sage
Publications, Thousand Oaks: 2002), 154. 99 Ibid. 100 Debra Griffiths, Agreeing on a way forward: Management of Patient Refusal or Treatment
Decisions in Victorian Hospitals (PhD Thesis, 2008) < http://vuir.vu.edu.au/view/type/thesis.html> 101 Flick, above n 85. Liamputtong, above n 85. 102 Ontology is concerned with the nature and study of being. Positivist ontology views the world
objectively and without influence by the observer/researcher. A postmodernist ontology adopts a
different perspective and sees the world as fluid, that is, it is always changing and is fundamentally
shaped by the person that is observing it at the relevant time. Liamputtong, above n 85, 340. 103 Epistemology is the theory of knowledge and epistemological considerations relate to the beliefs
about the nature and acquisition of knowledge. In a qualitative research project, this also includes the
relationship of the researcher to that which is being researched. See Ian Holloway, Basic concepts for
qualitative research (Blackwell Science: London: 1997) 30-31.
38 Chapter 2: Methodology & Research Design
it was founded, is helpful when considering its influence upon the development of
grounded theory, and the variations in how it is applied.
2.2.3.1 Symbolic Interactionism
Symbolic interactionism emerged from the interpretative paradigm and
ultimately resulted from the integration of the works of a number of early American
sociologists, most notably, George Herbert Mead. Mead was a pragmatist, as
evidenced by the key assumptions upon which his work was founded.104 In the
publications of his work following his death,105 it was clear that Mead considered
that the mind, self and society were interrelated and that social interactions106
between individuals, contributed to the development of the mind and the awareness
of self.107
In 1937, Herbert Blumer built upon Mead’s earlier work and ultimately
developed the theory of symbolic interactionism. Blumer proposed three premises of
symbolic interactionism. The first premise is that human beings act towards things
based on the meaning that the things have for them. ‘Things’ can include objects,
people, institutions or a situation. Individuals assign different meanings to these
‘things’ and it is that meaning which ultimately determines how the individual will
act when they encounter that object, person, institution, or situation.
The second premise relates to the meaning of such things, which can be
derived from, or arise out of, the social interaction one has with one’s fellows. The
assumption that underpins this premise is that the ‘meaning’ individuals assign to a
particular thing is acquired by virtue of their interaction with others. As interaction
continues, the meaning may grow or alter in some way, or it may remain unchanged.
The third premise is that these meanings are handled in, and modified through,
an interpretive process used by the person in dealing with things that he or she
encounters. This premise assumes that individuals will adapt and modify their
104Joel Charon, Symbolic interactionism: An introduction, an interpretation, an integration (Prentice
Hall, Boston: 10th ed. 2010). 105 Mead was a lecturer at the University of Chicago for 37 years. He did not author any books during
his lifetime. Following his death in 1931, those who had studied under him compiled and edited his
lecture notes and four publications followed, the most influential of which was: George H. Mead,
Mind, self and society: From the standpoint of a social behaviourist (Chicago University Press,
Chicago: 1934). 106 Social interactions involved the use of language and symbols. 107 Mead, above n 105.
Chapter 2: Methodology & Research Design 39
understanding of a particular thing and will do so through a process of reflection
after they have had an opportunity to experience the ‘thing’.108
Applying Blumer’s theory of symbolic interactionism to this current research
topic, a paramedic will assign meaning to the situation in which a patient refuses
paramedic treatment and/or ambulance transport, and it is this meaning that will
influence how he/she will respond to the situation. The meaning that they assign
arises from the social interaction with others, such as lecturers, employers, mentors
and peers. This meaning may grow or alter in some way as that interaction
continues. Finally, the paramedic may adapt or modify his/her understanding of
patient refusals and will do so through a process of self-reflection following
experiences responding to these situations, and on-going interactions with others.
A notable contribution to the theory of symbolic interactionism was the
establishment of research methods that could capture and analyse data in studies
involving social phenomena. Blumer challenged the use of objectivist scientific
theories and their traditional research methods in studies involving human behaviour.
He argued that the traditional theories and methods failed to place sufficient
emphasis on the importance of meaning that individuals had for ‘things’ and how
that meaning shaped their behaviour. He advocated an interpretative framework and
the use of research methods that would take researchers into the field where they
could capture, through interview and/or observation, information about meanings,
individual interpretation and behaviour.109
2.2.3.2 Grounded Theory Methodology
Influenced by Blumer’s theory of symbolic interaction, Glaser and Strauss
developed the original grounded theory methodology in 1967 and published the
theory in their text, The Discovery of Grounded Theory.110 The theory provided a
systematic approach for the collection and analysis of qualitative data from which
theories were subsequently discovered and knowledge acquired.111 The original
108 Herbert Blumer, Symbolic Interactionism: Perspective and Methods (Prentice Hall, Englewood
Cliffs: 1969) 2. 109 Norman Denzin, Symbolic Interactionism and Cultural Studies: The politics of interpretation
(Blackwell, Oxford: 1992). 110 Barney Glaser and Anselm Strauss, The Discovery of Grounded Theory: Strategies for Qualitative
Research (Aldine, Chicago: 1967). 111 Cresswell, above n 84; Strauss and Coburn, above n 86.
40 Chapter 2: Methodology & Research Design
grounded theory methodology is epistemologically objective and is guided by a
critical realist ontology, which means that although grounded theorists believe that
reality exists, it cannot be completely measured in research and perfectly understood,
only perceived.112
Since publication of the original grounded theory, a number of variations to the
methodology have emerged which have essentially moved grounded theory from the
traditional objectivist approach towards a constructivist position.113
Constructivist grounded theory is, by contrast, epistemologically subjective,
and is guided by a relativist ontology which promotes the notion that there are
multiple truths and realities which are contextually bound, and which are capable of
interpretation through the research process.114
Whilst the core techniques employed in grounded theory have remained
constant, the variations to the original theory can be seen to have distinct and
different epistemological and methodological underpinnings which ultimately guide
the manner in which the core techniques are implemented, in particular, the role of
the researcher in the research process, and the procedures for data collection and
analysis.115
The constructivist approach to grounded theory advanced by Charmaz116 was
used as the methodological framework for stage three of this research. The
researcher in this study accepts the distinction between reality and multiple truths
112 Grounded Theory Methodology emerged at a time when positivist researchers were critical of
qualitative research for reason that it lacked, in their opinion, scientific rigor. The background of
Glaser and Strauss proved to be a significant factor in its development. Glaser came from a
quantitative research background and Strauss was trained in qualitative research. Together they
developed a theory that employed objective methods for the collection and analysis of qualitative data.
The role of the researcher in a grounded theory study was to remain impartial and objective during
data collection and analysis and allow categories to emerge from the data. Egon Guba & Yvonne
Lincoln, ‘Competing paradigms in qualitative research’ in Norman Denzel & Yvonne Lincoln,
Handbook of Qualitative Research, (Sage Publications, California: 1994), 105; Terence McCann &
Eileen Clark, “Grounded theory in nursing research: Part 2 – Critique’ (2003) 11(2) Nurse Researcher
19. 113 Katherine Charmaz, ‘Grounded theory: Objectivist and constructivist methods’ in Norman Denzel
and Yvonne Lincoln, Handbook of Qualitative Research, (Sage Publications, California: 1994), 509;
Charmaz, above n 86; Jane Mills, Ann Bonner and Karen Francis, ‘ The development of constructivist
grounded theory’ (2006a) 5(1) International Journal of Qualitative Methods 25, 26; Skeat and Perry,
above n 84, 98; Merilyn Annells, ‘Grounded theory method, part 1: Within the five moments of
qualitative research’ (1997) 4 Nursing Inquiry 120, 124. 114 Charmaz, above n 113, 509. 115 Ibid; Charmaz, above n 86; Mills et al, above n 86, 8; Skeat and Perry, above n 84, 95; Annells,
above n 113, 120. 116 Charmaz, above n 113, 509; Charmaz, above n 86.
Chapter 2: Methodology & Research Design 41
that is provided by constructivist theorists, and the epistemological assertion that the
researcher and research participants interact and influence each other during the
research process. The nature of the interaction between a paramedic and his or her
patient in the context of a refusal of treatment is complex. The interpretation of the
'multiple truths' regarding this complex interaction, and the subsequent development
of knowledge, can only occur if the researcher is an active participant in the research
process.
Having selected constructivist grounded theory as the methodological
framework for stage three, it is prudent to consider the features of this methodology
and how those features guided the research process. They are:117
(i) Reciprocity
(ii) Reflexivity
(iii) Theoretical sensitivity
(iv) Treatment of the literature
(v) Theoretical sampling
(vi) Constant comparative analysis
(vii) Coding and categorising of the data
(i) Reciprocity
The researcher plays a significant role in a constructivist research endeavour,
interacting with the research participants so that the complexity of that which is
being studied becomes apparent, and the depth of the issues can be identified.118
The researcher and research participant construct knowledge together. For this
to occur, the relationship between researcher and participant must be one in which
there is mutual trust and an equal position of power, as opposed to one in which the
participant perceives him or herself as subordinate to the researcher.
The requirement of reciprocity in the relationship between the researcher and
participants should be considered during the research design, particularly the
117 Mills et al, above n 113, 25; Mills et al, above n 86, 8. 118 Charmaz, above n 86; Mills et al, above n 86, 8.
42 Chapter 2: Methodology & Research Design
interview structure and process, and the way interviews are arranged and
conducted.119
The researcher in this project is an employee of the QAS. It was therefore
critical that the separation of the role of employee and researcher was made very
clear to participants.
Participants were recruited by email forwarded to their QAS email account
from the researcher’s QUT account.120 The approach email was non-confronting and
was written in such a way as to seek the participant’s help to work with the
researcher to examine the research topic and construct knowledge together.
The email also made it very clear that the researcher was not conducting this
research in her capacity as a QAS employee and that there was no compulsion to
report back to the QAS regarding the progress of the research or on matters that were
uncovered during the collection of research data. This information was repeated in
other participation documents which included ‘information for prospective
participants’121 and the ‘participant information sheet’ that was provided at the time
the consent form was signed by the participant.122
The location at which interviews are conducted is a factor that can also
enhance reciprocity. Whilst it was considered desirable to conduct interviews away
from QAS facilities, it was not always possible or practical to do so. Focus group
interviews were each conducted at QAS facilities. Individual interview participants
however were invited to nominate an interview venue, with the only specifications
being that of privacy in which to conduct the interview, and a noise-free environment
in which an audio recording of the interview could be made. Twenty-one
participants nominated a QAS facility and in most cases, the facility was not the
station to which the participant was assigned.123 Seven of the 30 participants invited
the researcher into their home to conduct the interview, and two participants elected
to use a private room in the library of a university campus.
119 Susan Jones, ‘Writing the Word: Methodological strategies and issues in qualitative research’
(2002) 43 (4) Journal of College Student Development 461, 462; Mills et al, above n 113, 25; Annells,
above n 113, 126; Mills, above n 86, 8. 120 See Appendix C ‘Recruitment Email’. 121 See Appendix D ‘Information for Prospective Participants’. 122 See Appendix E ‘Participant Information Sheet’. 123 Participants selected facilities that were in close proximity to their home. In most cases, it was a
QAS ambulance station however, other facilities included education units and local area offices.
Chapter 2: Methodology & Research Design 43
Interviews were semi-structured and commenced with a number of opening
questions that sought to obtain details about the participant’s educational
qualifications, professional background and life experiences. Thereafter, interview
questions were framed in such a way as to motivate the participants to discuss their
experiences at length.
One area that had the potential to be confronting for participants, and possibly
erode reciprocity, involved questions that were designed to elicit information relating
to the participant’s knowledge and understanding of the law relating to refusal of
treatment. To avoid this occurring, interview questions were carefully framed as
open-ended questions in which the participant was asked how he or she would
generally respond to a situation involving a patient refusal. This allowed participants
to provide a narrative in which they could raise multiple issues from which the
researcher could elicit information regarding the participant’s knowledge of the
clinical and legal requirements that must be addressed when responding to patient
refusals and where necessary, ask follow-up questions.
(ii) Reflexivity
The researcher comes to the research with their own views, values and
philosophical beliefs, much of which has been influenced by their culture, education,
professional and life experiences. This personal history will undoubtedly influence
the research, and prior professional experiences relevant to the research questions
must particularly be acknowledged.124 Reflexivity is the means by which a researcher
can be aware of their background and the impact that it may have on the research
process.125
The extent to which these potentially influencing factors must be
acknowledged has been the subject of some debate. Cutcliffee126 argues that
reflexivity is about personal awareness and that it rests with the researcher to
acknowledge, and be aware of, the personal factors that may influence the research
process. Neil,127however, takes a far more rigorous view of reflexivity stating that
124 Charmaz, above n 113, 509; Liamputtong, above n 85, 213. 125 Gerry McGee, Glenn Marland and Jacqueline Atkinson, ‘Grounded theory research: literature
reviewing and reflexivity’ (2007) 60 (3) Journal of Advanced Nursing 334, 335. 126 John Cutcliffe, ‘Reconsidering reflexivity: introducing the case for intellectual entrepreneurship’
(2001) 13 (1) Qualitative Health Research 136. 127 Sarah Neil, ‘Grounded theory sampling’ (2006) 11 (3) Journal of Research in Nursing 253.
44 Chapter 2: Methodology & Research Design
any potential impact that the researcher may have on the data by virtue of these
personal factors must become part of the research record and constantly addressed
during the data analysis.
A mechanism through which reflexivity can be achieved is the compilation of
informal analytic field notes or memos in which the researcher can record abstract
thinking and reflect upon the data and any factors that may have influenced the
analysis or reconstruction of it.128 The researcher in this project compiled a field
note following each participant interview, recording her interpretation of the
interview and any relevant comments that may influence how the data from that
interview may be subsequently interpreted.
(iii) Theoretical Sensitivity
Theoretical sensitivity is multidimensional and relates to the researcher's
knowledge, insight and awareness of the research area, and their capacity to interpret
and give meaning to the words and actions of the research participants.129 Sensitivity
can be developed from both reading the literature and as a consequence of the
researcher’s experiences that are relative to the research topic.
The researcher is the instrument through which the data is collected.
Theoretical sensitivity requires the researcher to draw upon their own knowledge and
experience to promote the interaction between the researcher and research
participant, to interpret the data, and to ensure that the data is examined from all
perspectives.130 It is, however, essential that the researcher does not enter the
research with preconceived notions about the research problem or outcome, or that
they impose their own views during the research process.131
The researcher has gained sensitivity from her review of the relevant literature
and significant insight into this topic as a result of her professional experiences. The
researcher is qualified as both a nurse and a lawyer. In her capacity as a registered
nurse, she was afforded the opportunity to work alongside paramedics in the pre-
hospital setting, an opportunity that provided her with an appreciation of ambulance
culture and understanding of paramedic practice and the setting in which it takes
128 Charmaz, above n 113, 509; McGee et al, above n 125, 335; Mills et al, above n 86, 10. 129 Cobin and Strauss, above n 86, 83-87. 130 Holloway, above n 103. 131 McCann and Clark, above n 112, 25.
Chapter 2: Methodology & Research Design 45
place. A decade later and after a change in career direction, the researcher worked as
a lawyer for the QAS and in that capacity, dealt with many cases involving patients
who had refused paramedic treatment and ambulance services and subsequently
suffered an adverse outcome. The researcher’s knowledge of these two disciplines
and her combined clinical and legal experience provides insight and sensitivity in
this complex and cross-disciplinary area of practice.
(iv) Treatment of the Literature
The place of the literature review in grounded theory methodology has been the
subject of some debate between traditional and evolved grounded theorists.132
Traditional theorists reject conducting a review of the literature, arguing that it will
contaminate and constrain the researcher's analysis of the data.133 Constructivist
theorists, in contrast, advocate that an early review of the literature will stimulate
theoretical sensitivity, direct theoretical sampling, and provide a secondary source of
data.134
The researcher came to this research with an extensive background and
professional knowledge of the literature relating to the topic of research. A
preliminary literature review was undertaken to provide contextual background with
respect to the research area, to identify knowledge gaps, and to provide justification
for the study. Ongoing review of the literature was conducted during the research
project and in conjunction with the data analysis. This review of the literature
provided confirmation and refutation of various categories as they were discovered in
the data, and in some cases, links to existing theories that may only partially explain
a phenomenon.135 The ongoing literature review is therefore considered to form part
of the research data.136
(v) Theoretical Sampling
Theoretical sampling is a continuous sampling method, which is not planned
before the commencement of the research but occurs concurrently with data analysis.
132 McGee et al, above n 125. Mills et al, above n 113, 28 133 Glaser, above n 133; Gary Hickey, ‘The use of literature in grounded theory’ (1997) 2 NT Research
371, 372; John Cutcliffe, ‘Methodological issues in grounded theory’ (2000) 31(6) Journal of
Advanced Nursing 1476, 1480. 134 McGee et al, above n 125. 135 For example, theories that have emerged from research that examined health professionals and
their understanding of the different areas of the law that are relevant to their area of practice. 136 McGee et al, above n 125.
46 Chapter 2: Methodology & Research Design
It involves the purposeful selection of participants that is based upon their knowledge
and experience relevant to the research topic, and not on factors such as their
representativeness.137
In a grounded theory study, theoretical sampling and data analysis occur
concurrently. As data is collected and analysed, the researcher develops categories
and it is these categories that subsequently direct the collection of further data and
focus the selection of participants for this purpose. This process continues until such
time as the categories are well developed.138
In this research project, a number of steps were put in place to identify, and
then purposefully select participants that would initially be able to provide rich data
that related broadly to the research questions, and thereafter, the various categories
that had emerged following the analysis of the data. Participant selection criteria are
addressed later in the chapter.
(vi) Constant Comparative Analysis
Central to constructivist grounded theory methodology is the manner in which
the researcher treats the data and their analytical outcomes. The process essentially
involves a deconstruction and reconstruction of the data, which is achieved through
constant and comparative analysis of the data as it is generated.139
During this process, the researcher remains close to the data, initially
comparing data with data, and later, data with codes and categories that have been
selected to identify frequently occurring events, ideas, and actions that were
considered to be significant to the interaction between paramedic and patient in these
circumstances.140 It is this close connection with the data that enables the researcher
to identify conceptually dense categories that clearly and accurately portray the
situation, and factors that are relevant to the research questions.141
137 Imelda Coyne, ‘Sampling in qualitative research: Purposeful and theoretical sampling’ (1997) 27
Journal of Advanced Nursing 623, 625.
138 Coburn and Strauss, above n 86, 196-213. 139 Charmaz, above n 86, 46; Mills et al, above n 86, 27; I Coyne & S Cowley, 'Using grounded theory
to research parent participation' (2006) 11(6) Journal of Research in Nursing 501, 507. 140 Corbin and Strauss, above n 86, 137; Mills et al, above 113, 29. 141 McCann and Clark, above n 112, 25.
Chapter 2: Methodology & Research Design 47
The constructivist grounded theory methodology advocated by Charmaz142
involves a two-step coding process: initial coding and focused/selective coding.
(vii) Coding and Categorisation
Initial Coding
Initial coding involves breaking down the data into discrete parts and closely
examining them on a line-by-line basis. This process enables the researcher to
identify concepts in the data and to assign labels or codes. Concepts may include an
event, an idea, an action or an interaction that the researcher identifies as significant
and potentially relevant to the research questions.143
Line-by-line coding is especially useful in a study of this kind where the
researcher is required to deal with large amounts of data generated from data
collection strategies such as focus group discussions, individual interviews and text
obtained from documents. Examining each line separately and independently, the
researcher is prompted to remain open to all possibilities in the data and the
subtleties that may appear therein.144
Focused Coding
Through constant comparative analysis, the more significant codes and those
that are conceptually related are grouped together into categories. At this stage of the
analytical process, the researcher can move between the data and compare incidents,
experiences and interpretations and identify what further data is required in order to
develop the categories.145
The process of developing the categories will ultimately lead to a reduction in
the number of categories as those that are conceptually and theoretically related are
linked. This is a vital step towards the identification of the core categories that
formed the basis of the grounded theory relating to how paramedics respond to a
situation involving a patient's decision to refuse ambulance treatment and
transport.146
142 Charmaz, above n 86. 143 Corbin and Strauss, above n 86, 147; Charmaz, above n 86, 48; Coyne and Crowley, above n 139,
505. 144 Charmaz, above n 86, 49. 145 Charmaz, above n 86, 57; Coyne and Cowley, above n 139, 505; Skeat and Perry, above n 84, 104. 146 Coyne and Cowley, above n 139, 507.
48 Chapter 2: Methodology & Research Design
2.3 RESEARCH DESIGN AND METHODS
The research methodologies that were used in both the research project and
preceding contextual analyses, guided the process by which this study was
conducted, and informed the methods and procedures that were used for the
collection and analysis of research data. The research methods that were used are
described in the following sections.
Epidemiological and Demographic Characteristics of Patients that Refuse
Ambulance Services in Queensland – A Contextual Analysis
Research Question One
How frequently are paramedics required to respond to a refusal of recommended
treatment and/or transport and in what circumstances?
Epidemiological, demographic and activity-based data collated by the QAS
during the 2011 calendar year was analysed to determine the frequency and
circumstances in which Queensland paramedics responded to a situation involving
patient refusal during that period.
2.3.1.1 Data Collection
During the 2011 calendar year, the QAS responded to over 800,000 cases,
approximately 70% of which was categorised as either an emergency (Code One) or
urgent in nature (Code Two).147 In each case, the attending paramedic created a
record of the attendance capturing all relevant demographic and clinical data relating
to the patient and the incident. The record is electronic and at the relevant time, was
created with the aid of a Panasonic Toughbook computer using the software program
Victorian Ambulance Clinical Information System (VACIS), which is a sophisticated
and integrated clinical data collection and information system designed by
Ambulance Victoria in collaboration with several Australian ambulance services.148
The electronic record, referred to as the electronic Ambulance Report Form or eARF,
was then uploaded into a database before being integrated into the QAS data
warehouse for reporting and analysis.
147 Council of Ambulance Authorities Inc., Annual Report 2010-11
<http://www.caa.net.au/downloads/caa_annual_report.pdf> at 20 December 2012. 148 VACIS was developed in 2005 by the Metropolitan Ambulance Service, Victoria (now Ambulance
Victoria) in collaboration with the Queensland Ambulance Service. The system was introduced into
those two services in that year and since that time, has rolled out into other Australian ambulance
services.
Chapter 2: Methodology & Research Design 49
A major feature of VACIS is a comprehensive set of clinical reference data and
codes from which paramedics can select as they complete the eARF. The use of this
reference data and codes facilitates a standard approach to the documentation of
treatment and other services provided to the patient by paramedics and provides a
means by which specific case types can be identified and evaluated. VACIS includes
a specific code for ‘refusal of transport against paramedic advice', which the
attending paramedic activates in circumstances involving a patient refusal of
treatment and/or transport.
All cases during the 2011 calendar year to which a QAS ambulance was
dispatched, and no ambulance transport was subsequently provided, were identified
in the database. From this group, those cases in which the attending paramedic had
activated the 'refusal of ambulance transport against paramedic advice’ code (refusal
cases) were selected and the data relating to each case was copied to an MS-Office
Excel spreadsheet. All patient identifying details, and information that could identify
the attending paramedics, were removed prior to the transfer of the data from the
database to the MS-Office Excel spreadsheet.
In accordance with the requirements specified by the QAS, the technical
extraction of this data from the QAS patient record database, and the creation of the
MS-Office Excel spreadsheet, was performed by an employee in the QAS
Information Support, Research and Evaluation Unit, as it was then known.
2.3.1.2 Data Analysis
Statistical Package for the Social Sciences (SPSS) version 19 and MS-Office
Excel 2007 were used to manage the data and conduct all data analyses.
The MS-Office Excel spreadsheet in which the data was recorded, was saved
as a file on a QAS computer in the Information Support, Research and Evaluation
Unit. The file was password protected and access to the file was limited to research
officers employed in that unit. All analyses were performed under the direction of,
and in the physical presence of, the researcher.
Data was analysed to determine the following:
• Number of refusal cases involving a patient-initiated refusal of ambulance
services against the advice of the attending paramedic;
• Percentage of total ambulance responses during the twelve month period;
50 Chapter 2: Methodology & Research Design
• Distribution of refusal cases across the then seven QAS regions;
• Mean age of patients who refused ambulance services;
• Percentage of males and females in each age group;
• Geographical location of the patient according to three broad categories:
private residence; public place; and health care facility (which would
include a doctor's surgery);
• Time at which the refusal occurred recorded as either day (between 0800
hours and 2000 hours) or night (between 2000 hours and 0800 hours the
following day);
• Presenting health problem as determined by the attending paramedic; and
• Summary of paramedic assessment findings and final diagnosis.
The Regulatory Framework and Refusal of Treatment and Transport – A
Contextual Analysis
Research Question Two
What is the law that would apply in circumstances where a patient refuses
ambulance treatment and/or transport?
The objective of this contextual analysis was to examine and describe the
common law that governs patient decision-making and decisions to refuse paramedic
treatment and ambulance services, as a coherent set of principles, rules and
exceptions.
It is acknowledged that descriptive commentaries relating to patient decision-
making generally, and refusal of medical treatment more specifically, have been
provided by other researchers and authors. This analysis however, does not repeat
those descriptive commentaries, but describes the law in the context of a decision to
refuse paramedic treatment in the pre-hospital environment, and ambulance
transportation to a hospital or health facility. A comprehensive description of the
law in these circumstances is original and is an essential component of the research
project as it helped to frame both the interview questions, and the analysis of the
interview data relating to Research Questions Three, Four and Five:
Research Question Three
Chapter 2: Methodology & Research Design 51
What do paramedics understand of the law relating to patient decision-making and
refusal of ambulance services?
Research Question Four
What is the process applied by paramedics to determine if the patient’s decision to
refuse paramedic treatment and/or ambulance transport is valid?
Research Question Five
To what extent does the process applied by paramedics comply with the law?
2.3.2.1 Data Collection
Materials that were sourced to undertake the doctrinal analysis (legal data)
included primary legal resources such as cases from Australia and other common law
jurisdictions, and legislation. The legislation that was deemed relevant to this
analysis was limited to Queensland legislation. Secondary resources such as
authoritative text and scholarly commentary were also examined.
The strategy that was used to source relevant data involved extensive searching
of legal and academic databases that would capture case law and legal commentary
in the following countries: Australia; United Kingdom; Canada; New Zealand; and
the United States of America.
The databases that were searched included the following: Attorney General’s
Information Service (AGIS); CaseBase; FirstPoint; LexisNexis AU; Lexis Advance
Pacfic; Westlaw AU; Westlaw UK; Queensland Legal Indices; and Lawcite.
A selection of some of the search terms that were used included: ‘refusal
medical treatment’; ‘refusal ambulance’; ‘refusal health care’; ‘refusal emergency
care’; ‘refuse consent’; and ‘capacity refuse treatment’.
Legislation was identified by searching the website of the Office of the
Queensland Parliamentary Counsel.
2.3.2.2 Data Analysis
The data was analysed by the researcher, applying the rules of precedent, the
rules of statutory interpretation, and scholastic ability to critically review scholarly
publications relevant to this area of the law. The result of this analysis was the
creation of an authoritative exposition of the law involving contemporaneous
decisions to refuse paramedic treatment and/or ambulance transport. The findings of
52 Chapter 2: Methodology & Research Design
this analysis framed the research questions that were posed the focus group
interviews and individual paramedic interviews and guided the analysis of the
research data obtained during that process.
Paramedic Response to Patient Refusals – A Qualitative Research Project
The objective of this research project was to develop knowledge regarding how
paramedics respond to a situation in which a patient refuses paramedic treatment
and/or ambulance transport against advice; their knowledge of the law that governs
patient decisions to refuse; and whether their practice complies with the law.
Research Question Three
What do paramedics understand of the law relating to patient decision-making and
refusal of ambulance services?
Research Question Four
What is the process applied by paramedics to determine if the patient’s decision to
refuse paramedic treatment and/or ambulance transport is valid?
Research Question Five
To what extent does the process applied by paramedics comply with the law?
The method of data collection was semi-structured individual interviews with a
purposively selected sample of paramedics. This method was considered to be the
most effective to address these research questions. A semi-structured interview
would allow the researcher to explore the experience of responding to a patient who
had refused paramedic treatment and/or transport, and the meaning that the
participant assigned to this experience.
When conducting qualitative research, it is appropriate to select participants
who are able to provide ‘rich, substantial and relevant data’ that will address the
research questions.149 Developing the criteria that would guide the selection of
participants began with a review of the literature, which confirmed that refusal of
paramedic treatment and/or transport is a frequently occurring phenomenon,150 and
that the clinical and other circumstances that may be associated with patient refusals
149 See Kathy Charmaz, above n 86, 18. 150 Inquest into the death of Nola Jean Walker (Coroner's Court of Cairns, State Coroner Barnes SM,
23 November 2007) [17]; Balcar, above n 42; Toloo et al, above n 46, 56.
Chapter 2: Methodology & Research Design 53
can vary significantly, and in some cases, can be ‘challenging’ for the attending
paramedic.151
Personal experience responding to a patient who had refused paramedic
treatment and/or transport was essential criteria for participation. It was also
considered desirable that the experience included responding to a case that was
deemed to fall into a category that was ‘challenging’ and furthermore, that this case
could form the basis upon which the interview would be conducted. Identifying, in
the first instance, refusal cases that fell into the category of ‘challenging’ would
enable the researcher to identify potential participants who would be well placed to
provide rich and relevant data.
In order to develop the selection criteria and ultimately identify potential
participants for interview, a series of steps and combination of methods were
implemented. The first step involved the analysis of QAS refusal data to identify the
circumstances in which refusals took place. This analysis was then followed by a
series of focus group discussions involving experienced paramedics who could
provide valuable insight into how paramedics responded to patients that refused and
identify challenging refusal case types, and thereafter, the review of de-identified
QAS documents relating to individual patients that had refused paramedic treatment
and/or transport. This process ultimately resulted in the purposeful selection of
paramedics who then participated in a semi-structured interview. The steps were
implemented sequentially in that order.152
151 A review of this literature is provided in Chapter 1 and Chapter 3 of this thesis. 152 Charmaz states that complex research problems may require the use of several combined or
sequential methods of data collection. See Charmaz, above n 86, 15.
54 Chapter 2: Methodology & Research Design
Figure 1: Process leading to the purposeful selection of interview participants
2.3.3.1 Focus Group Discussions
Focus group discussions were considered an appropriate starting point for the
collection of qualitative data that would allow the researcher to gain a deeper insight
into the interaction that takes place between a patient and paramedic when a refusal
of treatment and/or transport occurs, and to identify the type of refusal cases that
were deemed to be ‘challenging’ for the attending paramedic. This would be
achieved through the varied experiences and perspectives of a group of
participants.153
2.3.3.1.1 Selection of Focus Group Participants
Focus group participants were selected by purposive sampling, which involved
a deliberate selection of potential participants that was based upon the participant’s
extensive knowledge of issues that were relevant to the research, and their capacity
to provide rich data.154 It was therefore essential that participants had experienced
cases involving a refusal of recommenced treatment and/or transport, and desirable
153 Liamputtong, above n 85, 206. 154 Parnee Liamputtong, Focus Group Methodology: Principles and Practice, (Sage Publications,
London: 2011) 6.
Chapter 2: Methodology & Research Design 55
that they had held managerial or supervisory positions in which they would have
been exposed to the broader issues associated with patient refusals through the
experience of colleagues for whom they offered support and guidance.
Focus Group inclusion criteria included:
• qualified paramedic;
• educational qualification that included either a university degree or
completion of a paramedic vocational education program;
• clinical experience of no less than two years;
• experience responding to cases that involved a patient refusal; and
• managerial or supervisory experience in the QAS.
Participants were selected from the cohort of paramedics that held the position
of Officer in Charge (OIC)155 of a QAS station, or Clinical Support Officer (CSO).156
Paramedics who hold these positions are required to have extensive clinical
experience and be capable of providing supervision and clinical direction to
paramedics that are allocated to their QAS station or work area.157
Paramedics who are appointed to these positions are strategically located at
QAS facilities throughout the State. The geographical location in which they work,
and the after-hours and on-call commitments that are attached to these positions,
were factors that made it impractical to meet with a group of focus group participants
outside of their working hours and in a central location that would be convenient for
all participants.
In view of this, the researcher sought and was granted permission from the
QAS to contact potential participants to invite them to participate in a focus group
discussion to be convened during their working hours, and at the completion of one
155 Queensland Ambulance Service, Role Description: Officer in Charge (2019). The OIC is a key
operational role within the QAS. The role is responsible for leading and managing staff and resources
of a medium to large size ambulance station within the station’s operational location, and for ensuring
that the service meets QAS standards and key performance indicators. 156 Queensland Ambulance Service, Role Description: Clinical Support Officer (2019). The CSO is
responsible for managing, monitoring and enhancing clinical standards and the effectiveness of patient
care through education and training. The CSO undertakes clinical audits and investigations to ensure
the educational and clinical governance objectives of the QAS are met, and coordinate and manage the
Local Ambulance Area Network (LASN) educational services. The role provides clinical leadership
and professionalism to QAS staff and the LASN leadership team. 157 The station or work area is a geographically defined area for which the OIC or CSO is responsible.
56 Chapter 2: Methodology & Research Design
of the group’s regular workplace meetings. Meetings are held on a monthly basis at
a pre-determined venue that is relatively central to their respective workplace
locations.
The researcher was provided with a list of meeting dates and venues across the
State from which three meeting locations were selected. Selection was made on the
basis of two factors: accessibility for the researcher and geographical locations that
could potentially include participants who represented a variety of settings, including
urban, rural and remote areas.
Participants were recruited by electronic mail on the basis that they met the
inclusion criteria and would be likely to attend one of the three scheduled meetings
referred to above. The recruitment email (Attachment D) was forwarded to the
participant’s QAS email address along with a research flyer that provided details of
the research project (Appendix E).
A total of 26 participants agreed to participate in one of the three focus group
discussion.
2.3.3.1.2 Data Collection
When planning and conducting focus group research, there are a number of
practical issues that should be considered to enhance the success of this method of
data collection. In this section, the following issues relating to data collection will be
addressed:
• sample size;
• number of focus group discussions;
• venue;
• duration of each focus group; and
• focus group procedures.
Sample Size
There is no set formula regarding the number of focus groups that should be
conducted, or the number of participants in each focus group.158 It is however
suggested that there should be between three and five groups, and that the size of
158 Liamputtong, above n 154, 57.
Chapter 2: Methodology & Research Design 57
each group should comprise no fewer than six participants, and no more than
eight.159
There were three focus groups convened in this research project:
• Group One was convened in the West Moreton Local Ambulance Service
Network and had nine participants from the Ipswich, Lockyer Valley and
Brisbane Valley areas.
• Group Two was convened in the Metropolitan North Local Ambulance
Service Network and had six participants from the inner city and North
West suburbs of Brisbane, and areas of the Moreton Bay Regional
Council.
• Group Three was convened at the Queensland Combined Emergency
Services Academy at Whyte Island and had ten participants from across
the State including areas in the Far Northern, Gulf, and Central West areas
of Queensland.
Focus Group Venue
The venue is a critical aspect when planning focus group discussions. Whilst it
is accepted that the physical location of the venue and the ambiance of the internal
environment can significantly influence the productivity of the group,160it was not
practical or financially viable to arrange a neutral location away from the QAS
workplace. The venue for each of the three focus group discussions was suggested by
the QAS and in each case, involved the meeting or conference room where the
participants had earlier convened for the purposes of a workplace meeting.
Duration of the Focus Group Discussion
It is important to strike a balance between allowing sufficient time for the
group to gain momentum with the discussion and limiting the time so as to avoid a
decline in participant concentration. A focus group should therefore last no longer
than two hours.161 The researcher was mindful that the participants in this research
project were attending during their working hours and in all probability, would be
159 Liamputtong, above n 154, 73; Julius Sim, 'Collecting and analysing qualitative data: issues raised
by focus group' (1998) 28 (2) Journal of Advanced Nursing 345, 347. 160 Liamputtong, above n 154, 57. 161 Liamputtong, above n 154, 46.
58 Chapter 2: Methodology & Research Design
required to respond to workplace matters during the focus group discussion. To
avoid disruption to QAS operational requirements, the researcher set a time limit of
90 minutes for each focus group discussion.
The duration of each focus group discussion was: 104 minutes; 64 minutes and
70 minutes respectively. The first focus group exceeded the pre-determined time
limit by 14 minutes however, the group was engaged in a robust and meaningful
discussion of the topic and for this reason, the researcher allowed the discussion to
continue beyond the designated completion time.
Focus Group Procedures
Each focus group involved a pre-discussion stage, an introductory stage, a
questioning stage and final summary. During the pre-discussion stage, participants
were greeted as they arrived and refreshments were offered followed by a light
lunch.162 During this stage, the participants interacted socially, and the researcher
attended to administrative tasks such as setting up the data recording devices and
finalising consent forms that had not been signed and returned to the researcher.
During the introductory stage, the researcher reiterated the aims of the focus
group discussion and encouraged participants to contribute and share their
experiences with the group. There was no requirement for participants to introduce
themselves, as they were known to each other and to the researcher. The questioning
stage followed and during this stage, the data was collected through the use of open-
ended questions that probed participants’ knowledge and perception of the topic and
stimulated deep and insightful group discussion.
Focus group discussions were digitally recorded and thereafter, a professional
transcription service was used to create a transcript of the discussion. The transcript
was then checked for accuracy against the audio recording of the group discussion.
2.3.3.1.3 Data Analysis
The purpose of collecting and analysing focus group data in this research
project was twofold. The first was to enable the researcher to gain a deeper insight
162 The focus group discussions were scheduled to take place at a time that was convenient for the
participants and their employer. As this time was close to midday, the researcher made arrangements
to supply and fund a light lunch and refreshments for participants before the focus group discussion
commenced. Participants who attended the focus group at the Combined Emergency Services
Academy had lunch provided at that facility.
Chapter 2: Methodology & Research Design 59
into the research phenomenon and secondly, to inform the subsequent collection of
research data, ultimately by guiding the purposeful selection of participants for
interview and framing of the interview questions. The analysis of the focus group
data was therefore directed to achieve this outcome, and to provide a process by
which the subsequent purposeful selection of participants could be implemented.
Data was analysed using constructive grounded theory methods, which
involves a two-step coding process: initial coding and focused or selective coding.
Initial coding involved the breaking down of the data into discrete parts and closely
examining them on a word-by-word and line-by-line basis. See an example of initial
coding in Table 1 below. This process was initially completed manually using a
variety of coloured highlighter pens to emphasise portions of text. This process
enabled the researcher to identify concepts in the data that were relevant to the
research questions, and relevant to the identification of ‘challenging’ cases types.
Thereafter, the researcher assigned labels or codes to the highlighted text.
Table 1: Focus Group Data – Example of Initial Coding
Focused coding followed and involved identifying the more significant codes
that appeared regularly in the data. Significant codes that were conceptually related
were then grouped together into categories. An example of focused coding appears
in Table 2 below.
60 Chapter 2: Methodology & Research Design
Table 2: Focus Group Data – Example of Focused Coding
2.3.3.2 Document Analysis
Theoretical sampling is not limited to the selection of participants to be
included, but also the selection of incidents.163 Studying an incident begins with an
analysis of the official document that was created at the time of the incident, and
which records all relevant details of the incident.
The analysis of the data obtained during the focus group interviews, identified
specific case types and circumstances (incidents) that were challenging for
paramedics when associated with a patient decision to refuse ambulance services.
These included patients who demonstrated clinical signs consistent with cardiac,
respiratory or neurological conditions, or following a motor vehicle collision or
physical assault. Circumstances that were also identified by the participants as
‘challenging’ included cases in which the patient was adversely affected by alcohol
consumption or drug toxicity.
Access to documents that recorded a paramedic’s response to these challenging
incidents, would provide further insight into the research topic, lead the researcher to
potential interview participants, and frame research questions that would discover
rich and relevant data.
2.3.3.2.1 Selection of Documents
As noted above, the QAS operates a sophisticated and integrated clinical data
collection and information system.164 The system enables an electronic patient care
163 Corbin and Strauss, above n 86, 72. 164 Council of Ambulance Authorities, above n 10.
Chapter 2: Methodology & Research Design 61
record to be created by the paramedic in the field and immediately uploaded into a
database from which information about the case can be accessed.
A major feature of the data collection system is the various codes from which
the paramedic can select if the case fell within a specific category. ‘Refusal of
transport against paramedic advice’ is a specific code that the attending paramedic
can activate in circumstances involving patient refusal.
The researcher was granted approval to access information recorded on QAS
records in which the attending paramedic had activated the ‘refusal of transport
against paramedic advice’ code. In order to capture records that related to an
incident that involved a patient refusal plus a ‘challenging’ incident, a QAS ‘script
for routine case identification and extraction’165 was required to be completed by the
researcher and submitted to the QAS Information Support, Research and Evaluation
Unit.
The QAS script for routine case identification and extraction included the
following criteria:
• refusal of transport against paramedic advice;
• patient aged 18 years or over;
• case nature identified by paramedic as one of the following: unknown
problem; neurological; assault; vehicle collision; cardiac; respiratory;
overdose; or case nature unknown; and
• other circumstances identified by paramedic, including alcohol.
For practical reasons, cases for extraction were limited to those that occurred in
Brisbane Metro South, Brisbane Metro North, West Moreton and the Gold Coast
Local Area Service Network (LASN).
The QAS Information Support, Research and Evaluation Unit prepared a
weekly case extraction that would include details of all cases that had occurred in
each of the four identified LASNs that had met the criteria listed in the script. The
information was presented in a MSOffice Excel spread sheet and was forwarded to
the researcher by electronic mail using a secure QAS email account. Patient and
165 A script for ‘routine identification and extraction’ is a QAS internal document in which authorized
personnel and researchers record the data that is to be identified and extracted.
62 Chapter 2: Methodology & Research Design
paramedic identifying details were not included in the MSOffice Excel spreadsheet
that was provided and cases were identified by the eARF number and the QAS case
number to which the details related.
A total of 25 weekly case extracts were provided to the researcher between 19
December 2014 and 6 July 2015. Each extract included approximately 100 cases,
which amounted to the details of approximately 2,500 cases involving a patient
refusal during that seven-month period.
2.3.3.2.2 Data Analysis
The researcher manually reviewed the information that was provided in the
MSOffice Excel spreadsheet referred to above. The details that were noted by the
researcher included:
• the generic location at which the service was provided (private or public
location);
• the suburb or town at which the service was provided;
• the time of day;
• the nature of the case which included clinical and other relevant
circumstances;
• a summary of the paramedic's final clinical assessment;
• the final outcome of the case; and
• the content of the paramedic’s free text as it was recorded verbatim in the
eARF.
Information that was invariably provided in the paramedic’s free text comments,
included details relating to the following:
• if the patient had consumed alcohol prior to the incident;
• if the patient had consumed, injected, inhaled or been exposed by any
other method, to substances which may impact on the patient's decision-
making capacity;
• the patient's neurological assessment findings; and
• the patient's vital signs as assessed and recorded by the paramedic.
Chapter 2: Methodology & Research Design 63
Other information that may have been recorded related to the following:
• the means by which the patient communicated his or her decision to refuse
treatment and/or transport;
• the paramedic's response to the patient's decision;
• the assessment conducted by the paramedic to determine if the decision to
refuse treatment and/or transport was a valid decision;
• any difficulties encountered by the paramedic when conducting the
aforementioned assessment; and
• the outcome of the ambulance attendance.
If the review identified an incident involving circumstances that were
‘challenging’ and related to the categories that had been initially generated following
the analysis of data obtained during the focus group discussions, the researcher
would request that a full copy of the eARF be made available for review. The
patient’s name, address and any other potentially identifiable information, were
removed from the eARF beforehand.
The eARF recorded the employee number of each of the paramedics who
attended the case. The researcher would request the name and QAS email address of
the paramedic responsible for the patient’s assessment and who ultimately compiled
the eARF. An invitation to participate in an in-depth interview would then be sent to
the paramedic.
During the data collection and analysis phase, a total of 147 de-identified
eARFs were requested and made available to the researcher.
2.3.3.3 Individual Semi-structured Interview
The decision to use individual, semi-structured interviews as the principal
method of data collection in this research project was influenced by the nature of the
project, the research questions, and the methodological framework that guided the
research process. Individual interviews are commonly used in constructivist
grounded theory research, as they allow the researcher to explore the participants’
experience, and to understand the meaning that a participant assigns to that
64 Chapter 2: Methodology & Research Design
experience.166 How a paramedic responds to a patient who has refused paramedic
treatment and/or transport, and does so against the advice of the paramedic, is
undoubtedly influenced by multiple factors. A semi-structured interview provides a
participant with an opportunity to describe their experiences, and to do so using their
own words and expressions.167
2.3.3.3.1 Selection of Interview Participants
Participants were purposively selected using the process that has been outlined
above. Whilst the selection process was planned prior to the commencement of the
data collection phase, the ongoing selection of participants was directed by the
categories that had been developed through the concurrent analysis of data.168
A total of 84 potential participants were ultimately selected from the 147 de-
identified eARFs that had been provided to the researcher following the document
analysis component of the study. An invitation to the participate in an interview was
forwarded to each of the 84 potential participants by electronic mail using the
participant’s QAS email account (Appendix A). The approach email referred to the
refusal case that the participant had attended during the preceding week, and
provided reference details such as the QAS case number and the eARF number, so
that the participant could access the case details and refresh their memory.169 Details
of the research project were provided in an attached document: Information for
Prospective Participants.170
The initial response to the invitations to participate was slow. Following a
suggestion from a participant who had accepted the invitation and participated in an
interview, minor amendments to the approach email were made.171
A total of thirty paramedics agreed to participate in an interview relating to the
experience that was captured in the eARF that they had authored, and the broader
topic of patient refusal of paramedic treatment and/or transport. Participants
informed the researcher by return email, of their desire to participate. Following
166 Mills et al, above n 86, 9 Bonner and Francis, above n 115, 117. 167 Charmaz, above n 86, 25. 168 This process is referred to as theoretical sampling. See Coburn and Strauss, above n 86, 196-213
and discussion in section regarding theoretical sampling earlier in this chapter. 169 QAS paramedics can access the database and view the eARFs that they authored and uploaded.
Access is restricted and password protected. 170 See Appendix B - Information for Prospective Participants. 171 See Appendix A - Approach Email Version 2.
Chapter 2: Methodology & Research Design 65
receipt of their acceptance, a more detailed information sheet and consent form was
forwarded to each participant.172
Except for three participants who worked in rural and semi-rural areas, the
interview participants were allocated to QAS stations that were located in
metropolitan areas in South East Queensland.
There were 18 males and 12 female participants. All participants were
qualified paramedics with 23 of the 30 participants obtaining their qualification in
Queensland and the remaining seven in jurisdictions that included New South Wales,
Victoria, Tasmania, Northern Territory, England, South Africa and New Zealand.
The educational qualifications of the participants that were relevant to
paramedic practice, included: post graduate diploma (one participant); bachelor
degree (13 participants); and diploma or associate diploma (16 participants). Seven
of the 30 participants were, at the time of interview, enrolled in post-graduate studies
relating to paramedic practice.
Ten of the 30 participants held additional qualifications other than those
relating to paramedic practice and were experienced working in other areas of health
or emergency services. Those included: nursing (six participants); social work (three
participants); and policing (one participant).
All participants were experienced paramedics and at the time of interview,
were employed in that capacity with the QAS. The duration of experience varied
between three months and 37 years with the average years of experience being 8.2
years.
172 See Appendix C - Participant Information Sheet (Individual Interview) and Consent Form.
66 Chapter 2: Methodology & Research Design
Table 3: Gender, educational qualifications and experience of individual participants
2.3.3.3.2 Data Collection
An individual face-to-face interview was conducted with each of the 30
participants.
The advantage of individual interviews as a method of data collection is that it
allows the participant to share their experiences using their own words and to do so
in a non-judgemental and confidential setting. The face-to-face format also affords
the researcher the opportunity to observe non-verbal cues that may aid in interpreting
the participant’s response, and in some cases, prompt further questions to seek
clarification.173
Interviews were digitally recorded with the knowledge and consent of each
participant. A professional transcription service174 was engaged to create a transcript
of each interview and the transcript was then checked for accuracy against the
recording. The researcher allocated a code to participants and this code was used to
identify the transcript of their interview.
173 Bruce Berg, Qualitative Research Methods for Social Science (Allyn & Bacon, Boston: 7th ed,
2009). 174 Pacific Transcription.
Chapter 2: Methodology & Research Design 67
(i) Interview Venue
The venue at which the interview is conducted is an important consideration.175
Whilst it is desirable to conduct the interview away from the participant’s workplace,
it was not always practical to do so. It was essential that the location was quiet so
that the quality of the audio recording was not contaminated by external noise, and
that it was private so that the confidentiality of the issues discussed during the
interview, and anonymity of the participant, were maintained.
Participants were invited to nominate the interview venue and also identify the
time that would suit them having regard for their work and family commitments. As
stated earlier, 21 interviews took place in QAS facilities, such as an office or private
room at a QAS station, or at one of the QAS educational facilities. Seven interviews
were conducted at the participant’s private residence, and two in a sound proof room
located within a university library.
The majority of participants attended the interview on a rostered day off. One
participant attended between night shifts, and three participants attended while on
recreational leave.
(ii) Duration of Interview
Whilst there have been differing views expressed regarding the appropriate
length of a face-to-face interview, the general consensus is that the interview should
not exceed 60 minutes.176 The duration of each interview in this research project
varied between 20 minutes to 66 minutes, with the average being 38.5 minutes. A
total of 19 hours and 28 minutes, or 1,157 minutes of interview data were recorded.
(iii) Structure of the Interview
Charmaz describes in-depth interviewing as ‘intensive interviewing’ as it
allows the researcher to question the participant intensely in relation to their
experiences as they relate to the topic of research, and how they perceived those
experiences.177
The structure of an intensive interview can vary between a loosely guided
exploration of the topic, to that of a semi-structured interview that involves questions
175 Liamputtong, above n 85, 54. 176 Liamputtong, above n 85, 54; Immy Holloway & Stephanie Wheller, Qualitative Research for
Nurses (Blackwell Science, London, 1996). 177 Charmaz, above 86, 26.
68 Chapter 2: Methodology & Research Design
that are focused and direct.178 The interviews that were conducted in this study were
semi-structured and included a combination of predetermined questions plus prompts
that were aimed to stimulate loosely structured conversation that was informal in its
approach. An interview guide was prepared and used to guide the interview.179
Each interview commenced with several questions to elicit information from
the participant regarding their educational background and duration of experience
working as a paramedic. Thereafter, a series of broad, open-ended questions was
posed that would allow the participant to respond and tell their story. Questions were
then directed towards seeking clarification of the information that had been provided,
and more focused questions were asked to elicit information that was directly related
to the specific research questions.
Participants were generally eager to participate in the interview process and
with the exception of a small minority, would do so without the need for prompting.
It is appropriate to note that as the interviews progressed, participants indicated that
they were pleased that they had been selected and invited to participate in an
interview, having heard from colleagues who had participated and had found their
experience to be meaningful. One participant who admitted that they had ignored a
previous invitation to participate that was sent in relation to another case, stated that
a colleague had urged them to participant if they received a subsequent invitation,
stating that they had done so and that they ‘enjoyed and learnt from the experience’.
(iv) Other Data Sources
Data is not limited to that which is shared by a participant. Research data also
includes details about how the participant shares the information, and the conditions
under which the participant shares it.180 Field notes or memos were compiled by the
researcher and done so immediately following each participant interview. The field
note included details which were not captured in the interview recording and
subsequent transcript, but helpful to the data analysis phase. Field notes included
details of the following:
178 Kathy Charmaz, Constructing Grounded Theory: A Practical Guide Through Qualitative Analysis
(Sage Publications, London: 2006), 26. 179 See Liamputtong, above n 154, 75. The author recommends the use of prepared ‘question guides’
to assist with the conducting of a focus group interview. 180 Liamputtong, above n 85, 56; Mills et al, above n 86, 10; Bonner and Francis, above n 115; Coyne
and Cowley, above n 139, 503.
Chapter 2: Methodology & Research Design 69
• a description of the interview setting and if any distractions or
interruptions occurred during the interview;
• details of any conversation which took place between the researcher and
the participant prior to, and immediately following, the interview;
• a description of any non-verbal responses and behaviours of the
participant;
• the researcher's opinion regarding the conduct of the interview and the
quality of the data obtained during the interview; and
• the researcher’s self-appraisal of her own performance during the
interview citing both strengths and weaknesses and areas for improvement.
Field notes were extremely helpful in this research project. They facilitated
reflection during the data analysis phase of the study and expedited the analytical
process.
2.3.3.3.3 Data Analysis
As discussed earlier, central to constructivist grounded theory methodology is
the manner in which the researcher treats the data and their analytical outcomes. The
researcher’s role in the data analysis phase of a constructivist grounded theory
project is critical. Drawing upon their knowledge and theoretical sensitivity of the
research topic, the researcher interprets the data and ensures that it is examined from
all perspectives.181
The examination and ultimate analysis of the data involves a process whereby
the data is deconstructed, conceptualised, and then reconstructed in new ways.182 As
the data is deconstructed they are allocated codes that describe what is happening in
particular segments of the data.183 By using this process, codes are developed from
within the research data, and not from a pre-existing theory or pre-conceived
categories.184
181 Immy Holloway, above n 103. 182 Anselm Strauss and Juliette Corbin, above n 86, 57. 183 Ibid. The authors describe coding as the operation by which data is broken down, conceptualised,
and put back together in new ways. 184 Charmaz, above n 86, 47.
70 Chapter 2: Methodology & Research Design
The two-step coding process advocated by Charmaz185 was used to analyse the
data obtained during face-to-face interviews. The process involved initial coding
that was then followed by focused coding.
(i) Initial Coding
All face-to-face interviews were audio-recorded and transcribed verbatim. The
initial coding was conducted manually and involved a line-by-line examination of the
interview transcripts to identify frequently occurring events, ideas, and actions. An
example of initial coding appears in Table 4 below.186
Using a selection of coloured pens and examining each line and completed
sentence in the interview transcript, the researcher highlighted words and text that
frequently appeared in the data, and which described an action or opinion. Each
action or opinion was then assigned a label or code that best reflected the action and
what was taking place in the data. The code was then recorded in the margin of the
interview transcript.
The initial codes that were recorded were provisional, in that they were
renamed or possibly discarded as additional data was gathered, analysed and
compared to the codes that had been generated.187
All the interview data that was recorded in this research project was subjected
to initial coding. The codes that resulted from this process, whilst provisional,
adhered closely to the raw data.188 As additional data were generated and compared,
initial codes were modified to reflect the ongoing comparative analysis of the data.189
185 Ibid. The author advocates a two-step coding process, which is based upon the original three-step
method adopted by traditional grounded theorists but modified to allow a more flexible approach to
data analysis. 186 Anselm Strauss and Juliette Corbin, above n 86, 58; Mills et al, above n 113, 29. 187 Charmaz, above n 86, 47. The author encourages the researcher to remain open to other analytic
possibilities and to create and modify codes as data continues to be collected and analysed. She also
endorses the renaming of codes if a more suitable label is identified. 188 Charmaz, above n 86, 53. 189 Charmaz, above n 86, 54.
Chapter 2: Methodology & Research Design 71
Table 4: Individual Paramedic Interview Data – Example of Initial Coding
(ii) Focused Coding
The second phase of the data analysis involved focused coding. During the
stage of the analysis, the more significant and frequently occurring codes that had
been established during the initial phase of data analysis, were grouped into
categories.190 These groups or categories were more directed and focused. See
Table 5 below for an example of focusing coding.
Qualitative data software program, NVivo (Version 11), was used during this
phase of the data analysis. Interview transcripts and field notes were uploaded into
the program, which allowed the researcher to move easily between each of the
interview transcripts, comparing participant experiences, actions and opinions, and
identifying what data may be required to further develop the categories that had been
created.191
The process of developing the categories ultimately resulted in a reduction of
the number of categories as those that were conceptually and theoretically related
were linked.
190 Charmaz, above n 86, 57. 191 Charmaz, above n 86, 59.
72 Chapter 2: Methodology & Research Design
Table 5: Individual Paramedic Data – Example of Focused Coding
2.4 ETHICAL CONSIDERATIONS
Ethical clearance to conduct this research project was obtained from the
Queensland University of Technology (QUT) Research Ethics Unit following
approval granted from the University Human Research Ethics Committee (UHRC).
Approval was granted on 17 October 2015 (Ethics Application: 1300000581).192
The contextual analysis of the QAS refusal data was reviewed by the QUT
Research Ethics Unit and deemed to be exempt from the requirement of ethical
clearance on the basis that the data and the analysis thereof, was research that
involved:
• negligible risk of harm (as defined in the National Statement on Ethical
Conduct in Human Research); and
• the use of existing collections of records that contain only non-identifiable
data about human beings.193
Several ethical issues were considered to be relevant to this research as it related to
the conducting of focus group and individual interviews. They included:
192 See Appendix A. Notice of Ethics Application Approval 1300000581 issued on 17 October 2013. 193 See Appendix B. Electronic mail from the QUT Research Ethics Unit, Research Ethics Coordinator
to the researcher and principal supervisor advising of the decision to exempt Study One from ethical
for a copy of the electronic. Email dated 28 August 2012.
Chapter 2: Methodology & Research Design 73
(i) consent and voluntary participation;
(ii) respecting a right to withdraw or decline to answer questions;
(iii) maintaining confidentiality and privacy;
(iv) managing potential harm to participants;
(v) reporting possible unethical or illegal conduct; and
(vi) management of data.
(i) Consent and Voluntary Participation
Written permission to conduct the research was obtained from the QAS
Commissioner. Participants involved in this study were all qualified paramedics and
at the relevant time, employed by the QAS and actively involved in the delivery of
ambulance services. It was reasonable to presume that each participant had the
capacity to decide whether to participate in the research project.
Prospective participants received a number of documents, including:
• Initial approach email;194
• Information for Prospective Participants (Focus Group Discussion or
Individual Interview);195
• Participant Information Sheet (Focus Group Discussion or Individual
Interview);196 and
• Consent Form (Focus Group or Individual Interview).197
The initial approach email was forwarded to prospective participants using
their secure password protected QAS email account. Attached to the initial approach
email was the Information for Prospective Participants sheet that provided additional
information. If the participant was interested in participating in the research, they
were invited to respond by email, whereupon they were sent the Participant
Information Sheet and Consent Form.
In each of these documents, prospective participants were advised that their
participation in the study was voluntary, and should they choose to participate, they
would not be required to respond to questions or comment on issues raised during the
194 See Appendix C. 195 See Appendix. D. 196 See Appendix E. Participant Information Sheet – Focus Group Discussion and Individual
Interview. 197 See Appendix E. Consent Form – Focus Group Discussion and Individual Interview.
74 Chapter 2: Methodology & Research Design
focus group discussion or individual interview. This information was reiterated at
the commencement of each interview.
The Participant Information Sheet, which was provided to the prospective
participant prior to obtaining consent, included the following details: the research
team (researcher and supervisory team); description of the study; details of the
participants involvement; expected benefits; potential risks; privacy and
confidentiality considerations; requirements for consent; contact details should the
prospective participant require further information; and information regarding the
lodging of a complaint about the conduct of the project. A written Consent Form
was attached to the Participant Information Sheet and was required to be signed and
returned to the researcher before the interview.198
(ii) Respecting the right to withdraw or decline to answer questions
Participants may have been in an existing work relationship with the researcher
and in some cases, may have perceived that relationship to be unequal. The
researcher is an employee of the QAS and formerly held a position as a senior legal
advisor within the agency. In addition to providing legal advice and representation,
the researcher also delivered lectures at the QAS Education Centre and provided
input into the drafting and finalisation of various clinical practice guidelines. It is
possible that the researcher could have been in a position where she was responsible
for the provision of legal advice and/or representation in matters that involved a
participant and would have most certainly been involved in the delivery of various
lectures or informational sessions in which the participant was present. If a
participant perceived an unequal relationship, it was possible that the participant
might have felt compelled to participate and to answer all questions that were posed
during interview.
The researcher managed this risk by informing participants through the participant
information documents, that should they elect to participate, they could withdraw at
any time during the project and do so without comment or criticism. This
information was reiterated prior to the commencement of the interview.
198 See Appendix E. Consent Form – Focus Group Discussion and Individual Interview.
Chapter 2: Methodology & Research Design 75
(iii) Confidentiality, Privacy and Anonymity
Focus group discussions and individual interviews were conducted in settings
that offered a sound proof venue that would promote privacy. It was not possible to
conduct focus group interviews outside of participant working hours or away from
the QAS workplace however, in the case of individual interviews, participants were
invited to nominate the venue and did so in all cases. All individual interviews were
conducted outside of the participant’s scheduled working hours.
Anonymity of research participants was achieved by substituting pseudonyms
for the participants’ names on all documents that were created during the research. A
code was then allocated to each participant, which was then used to track interview
data provided by that participant.
Participant confidentiality was assured, and each participant was advised that
the research was being conducted as part of a doctoral study and that information
obtained by the researcher during the course of the research, including the identity of
the research participants, would not be provided to the QAS or its employees.
(iv) Managing Potential Harm
There was no possibility that participants could be exposed to physical harm as
a direct result of their involvement in the study however, the participants could
experience psychological distress when reflecting upon a difficult case involving a
patient who refused paramedic treatment and/or ambulance transportation. As the
participant would be reflecting upon professional practices, any risk of psychological
distress or discomfort was likely to be minor.
Participants were advised that they were not required to answer any questions
if they were uncomfortable doing so. They were also alerted to the possibility of this
risk in the participation documents, and were advised that should distress occur,
confidential counselling services were available.199
199 The QAS staff support service, Priority One is available to all QAS employees and their immediate
family. The service provides qualified counselors that can be readily accessed on a confidential basis.
The researcher confirmed with the Director of QAS Priority One, that the service would be available
to any participant that experienced discomfort or distress as a consequence of their participant in an
interview.
76 Chapter 2: Methodology & Research Design
The researcher monitored participant comfort during the course of each
interview and modified the interview questions if there was any sign of participant
distress or discomfort.
(v) Unethical or Illegal Conduct
There was a minor risk that a participant may report involvement in illegal or
unethical activity during performing their official duties as a QAS paramedic. If this
disclosure took place during focus group interviews, other participants may be
required to report this activity under the Code of Conduct for the Queensland Public
Service.200 If the disclosure took place during an individual interview, there may be a
lawful requirement for the interviewer to disclose the activity.
Information regarding this potential risk was provided in the participant
documents.
(vi) Management of Data
All research data, including audio-recordings, interview transcriptions,
researcher field notes, and other related documents are coded so as to avoid
identification of individual participants, and stored under locked conditions.
Electronic versions of the data are stored on a computer that is password protected
and housed in a locked facility that is alarmed and security monitored.
QAS de-identified patient data is stored on a password protected QAS
computer at a QAS facility.
Access to the research data has been limited to the researcher and the research
supervisors for the purpose of providing supervision and direction.
2.5 SUMMARY
This research project examines how paramedics respond to a situation in which
a patient refuses to provide consent for paramedic treatment and/or ambulance
transport to a health facility, contrary to the paramedic’s advice. The topic is
complex, and the research questions are multifaceted. A research design involving a
combination of legal doctrinal, a quantitative and qualitative methodology was
considered appropriate to adequately address each of the research questions. This
200 Queensland Government, Code of Conduct for Queensland Public Service (2017).
Chapter 2: Methodology & Research Design 77
chapter provides justification for each of the methodologies that were selected and
described how the methodologies guided the research and the contextual analyses
that were conducted as part of the project.
The first of two contextual analyses involved a quantitative methodology to
analyse and describe the epidemiological and demographic characteristics of patients
who refuse paramedic treatment and ambulance transport. A legal doctrinal
methodology guided the critique of the law and regulatory framework in which these
decisions are made. The research then examined the behaviour of paramedics when
responding to a patient that had refused treatment and transport against their advice.
A qualitative methodology, and more specifically, the constructivist grounded theory
methodology advanced by Katherine Charmaz, was considered appropriate to
achieve this purpose. The theoretical foundations of constructivist grounded theory
were discussed, and the tenets of this methodology, and how they were each
considered in this project, were explained.
The chapter then outlined the methods of data collection and analysis that were
applied, including the selection and recruitment of interview participants, interview
procedures, and ethical considerations.
79
PART TWO: CONTEXUTAL ANALYSIS OF
LAW AND PRACTICE
Chapter 3: The Regulatory Framework and Refusal of Paramedic Treatment and Transport 81
Chapter 3: The Regulatory Framework
and Refusal of Paramedic
Treatment and Transport
3.1 INTRODUCTION
It is not uncommon for a paramedic to encounter a patient who refuses to
provide consent for the treatment and/or ambulance transport that the paramedic
recommends. This was acknowledged by the Queensland State Coroner, Michael
Barnes SM, in the Cairns Coroner’s Court in 2007 where he stated that ‘refusal of
patients to accept treatment is an issue that [paramedics] must deal with
frequently’,201 and subsequently confirmed, as part of this research project, which
identified that 16,462 patients in Queensland alone, refused paramedic treatment
and/or transport during a single twelve-month period.202
Two equally important principles are relevant when considering decisions
regarding the refusal of health care.203 The first principle is the sanctity of life from
which flows the State's interest in protecting and preserving the lives and health of its
citizens.204 The second principle is autonomy, which underpins the right of an
individual to control their own body and make their own decisions regarding medical
201 Inquest into the death of Nola Jean Walker (Coroner’s Court of Cairns, State Coroner Barnes SM,
23 November 2007) 17. 202 Reported in Chapter 4 of this thesis, the findings of a contextual analysis of QAS refusal data that
examined the epidemiological and demographic characteristic of patients who refused treatment
and/or transport during the 2011 calendar year. 203 In addition to the principle of autonomy, the principles of beneficence (to do good) and non-
maleficence (to do no harm) are relevant when a ‘refusal of treatment decision’ is considered by a
health professional. These principles provide a framework in which ethical decision-making takes
place as advocated in the codes of conduct and codes of ethics for various health professionals. See
for example: Code of Conduct: Paramedics Australasia http://www.paramedics.org.au/about-us/who-
we-are/code-of-conduct/ at 21 November 2012. See also: Jonathan Burstein, 'Refusal of Care in the
Prehospital Setting' (1992) 21(1) Topics in Emergency Medicine 38, 39 where the author opines that
the competing principles which are in conflict are autonomy and beneficence. However, the judiciary
has not referred to beneficence or non-maleficence in any of the decisions in which refusal of medical
treatment has been considered. See Lindy Willmott, Advance Directives, Autonomy and The Refusal
of Life-Sustaining Medical Treatment, PhD Thesis (2011) <http://eprints.qut.edu.au/47024 > at 14
March 2012. The author makes note of this point and opines that this 'signifies the paramountcy of
autonomy in shaping legal principle in this field,' (59). 204 Airedale NHS Trust v Bland [1993] AC 789, 859; Re B (Adult: Refusal of Medical Treatment)
[2002] 2 All ER 449.
82 Chapter 3: The Regulatory Framework and Refusal of Paramedic Treatment and Transport
treatment.205 Conflict between these two principles would undoubtedly arise in
paramedic practice, particularly in circumstances involving a patient’s decision to
refuse treatment at the scene of an incident or accident, and thereafter, transport to a
hospital or health care facility for ongoing management. This would certainly be the
case if the treatment were required urgently in order to preserve the patient’s life or
avert serious consequences to their health. However, if the patient is competent206
and has the capacity to make decisions for themselves, the law recognises the
patient’s right to refuse recommended treatment, irrespective of the potential
consequences.207
A paramedic, when informed of a patient’s decision to refuse treatment and/or
transport, must carefully consider the question of whether or not the patient has the
requisite decision-making capacity to make that decision, and if other requirements
of a valid decision to refuse have been satisfied.
This chapter will present a contextual analysis of the regulatory framework in
which patient contemporaneous decisions regarding paramedic treatment and
transport are made.208 Contemporaneous decisions regarding health care are
regulated in Australia by the common law, which recognises that a competent adult
has a right to refuse treatment, even if the treatment is deemed necessary to prevent
irreparable harm, or prevent an otherwise avoidable death.209 The chapter explores
the elements of a valid contemporaneous decision to refuse, and examines in depth,
the voluntariness of a decision, and the requirement that the patient has the requisite
decision-making capacity to make the decision, at the time the decision is made and
205 Lindy Willmott, 'Advance directives refusing treatment as an expression of autonomy: do the
courts practice what they preach?' (2009) 38(4) Common Law World Review 295, 296. The author
provides, in the introduction, an excellent overview of these two principles. 206 The terms ‘capacity’ and ‘competence’ are often used interchangeably. A person who is deemed to
be competent has the capacity to make decisions. For the purposes of this thesis, the term capacity
will be used. 207 Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649; Re B (Adult: Refusal of Medical
Treatment) [2002] 2 All ER 449; HE v A Hospital NHS Trust [2003] 2FLR 408; Hunter and New
England Area Health Service v A (2009) 74 NSWLR 88. 208 As discussed in chapter one of this thesis, the circumstances that give rise to a request for
paramedic attendance are predominately unforeseen and take place with little or no warning whilst the
person is going about their daily routine, either in their home or in the community. The vast majority
of these decisions are made contemporaneously and for this reason, the scope of this analysis has been
limited to contemporaneous decisions. Informal discussions with senior operational personnel of the
QAS Clinical Quality and Patient Safety Unit, Office of the QAS Medical Director. 209 Re B (Adult: Refusal of Medical Treatment) [2002] 2 All ER 449; HE v A Hospital NHS Trust
[2003] 2FLR 408, 414.
Chapter 3: The Regulatory Framework and Refusal of Paramedic Treatment and Transport 83
conveyed. This analysis has been conducted in the context of refusal of paramedic
treatment and paramedic practice.
A third area of practice involves the provision of relevant health information to
a patient who refuses to provide consent. There is a division of opinion, both
judicially and in associated academic commentary, regarding the lawful basis upon
which information is to be provided to a patient who refuses recommended
treatment. This area of the law is explored in the context of providing information to
a patient in the pre-hospital setting who has refused paramedic treatment and/or
ambulance transport against advice.
3.2 PRINCIPLES THAT UNDERPIN DECISION-MAKING AND THE
LAW
There are a number of ethical principles that are relevant when considering the
interaction between a health provider and a patient. As stated above, the two
principles that are most relevant to this topic are the principle of autonomy, which
underpins the right of an individual to control their own body and make their own
decisions regarding medical treatment,210 and the sanctity of life from which flows
the State's interest in protecting and preserving the lives and the health of its
citizens.211
One of the earliest judicial acknowledgements of the principle of autonomy
and its relevance to decisions about medical treatment, was made a little over 100
years ago by Justice Cardozo of the New York Court of Appeals in the case of
Schloendorff v Society of New York Hospital:
Every human being of adult years and sound mind has a right to determine
what shall be done with his own body; and a surgeon who performs an
operation without his patient's consent commits an assault, for which he is
liable for damages.212
Justice Cardozo's statement was adopted by the High Court of Australia in
Secretary, Department of Health and Community Services (NT) v JWB and SMB
210 Willmott, above n 205, 296. In her introduction, the author provides an articulate and concise
overview of these two principles. 211 Airedale NHS Trust v Bland [1993] AC 789, 859; Re B (Adult: Refusal of Medical Treatment)
[2002] 2 All ER 449; Burstein, above n 203, 39; Willmott, above n 203, 59. 212 Schloendorff v Society of New York Hospital 211 NY 125 (1914), 129.
84 Chapter 3: The Regulatory Framework and Refusal of Paramedic Treatment and Transport
(Marion's Case)213 and has been cited in numerous cases and quoted in several
articles relating to medical decisions and the right of an individual to choose.214
Conflict between these two principles would undoubtedly arise in paramedic
practice where a patient refuses to provide consent for potentially life-saving
paramedic treatment at the scene of an incident or accident, or transport to a hospital
or health care facility, where the urgency of the treatment can be determined with
certainty and ongoing management and necessary medical supervision can be
provided. There have been several cases, both overseas and in Australia, in which
courts have been required to consider and resolve conflict involving the refusal of
medical treatment.215 The legal principles established in these cases would equally
apply to conflict involving the refusal of paramedic treatment and/or ambulance
transport.
In the case of Re T (Adult: Refusal of Medical Treatment),216 the English Court
of Appeal was required to consider a young woman's contemporaneous decision to
refuse a blood transfusion. Sometime after the woman had conveyed her decision to
the health professionals responsible for her care, her condition deteriorated, and it
became evident that the blood transfusion would be necessary for her to survive.
Lord Donaldson MR recognised the conflict between the two principles and did so in
the following statement:
The situation gives rise to a conflict between two interests, that of the patient
and that of the society in which he lives. The patient's interest consists of his
right to self-determination - his right to live his own life how he wishes, even
213 Secretary, Department of Health and Community Services (NT) v JWB and SMB (Marion's Case)
(1992) 175 CLR 218. 214 It is not practical to provide an exhaustive list of cases and commentary however, an example of
some include: Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649; Airedale NHS Trust v
Bland [1993] AC 289; Brightwater Care Group (Inc) v Rossiter [2009] WASC 229; Hunter and New
England Area Health Service v A (2009) 74 NSWLR 88; Loane Skene, 'When Can Doctors Treat
Patients Who Cannot or Will Not Consent?' (1997) 23(1) Monash University Law Review 77; John
Blackwood, 'I would rather die with two feet that live with one: The Status and Legality of Advance
Directives in Australia' (1997) 19 University of Queensland Law Journal 270; Bernadette Richards,
'General Principles of Consent to Medical Treatment' in Ben White, Lindy Willmott and Fiona
McDonald (eds), Health Law in Australia (Thomson Reuters, Sydney: 2010) 93. 215 Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649; Re C (Adult: Refusal of medical
treatment) [1994] 1 All ER 819; Re B (Adult: Refusal of Medical Treatment) [2002] 2 All ER 449; HE
v A Hospital NHS Trust [2003] 2FLR 408; Hunter and New England Area Health Service v A (2009)
74 NSWLR 88; Brightwater Care Group (Inc) v Rossiter (2009) 40 WAR 84; Australian Capital
Territory v JT (2009) 232 FLR 322; H Ltd v J & Anor (2010) 240 FLR 402. 216 [1992] 4 All ER 649.
Chapter 3: The Regulatory Framework and Refusal of Paramedic Treatment and Transport 85
if it will damage his health or lead to his premature death. Society's interest
is in upholding the concepts that all human life is sacred and that it should be
preserved if at all possible. It is well established that the ultimate right of the
individual is paramount.217
During the months immediately following the decision in Re T (Adult: Refusal
of Medical Treatment),218 the House of Lords handed down its landmark decision in
Airedale NHS Trust v Bland,219 in which the supremacy of the right of autonomy in
circumstances were a conflict between autonomy and the sanctity of life arose, was
clearly articulated by Goff LJ:
First, it is established that the principle of self-determination requires that
respect must be given to the wishes of the patient, so that if an adult patient
of sound mind refuses, however unreasonably, to consent to treatment or
care by which his life might be prolonged, the doctors responsible for his
care must give effect to his wishes, even though they do not consider it to be
in his best interests to do so. To this extent, the principle of the sanctity of
human life must yield to the principle of self-determination ... Moreover, the
same principle applies where the patient's refusal to give his consent has
been expressed at an earlier date, before he became unconscious or
otherwise incapable of communicating it.220
In July 2009, in Hunter and New England Area Health Service v A221, the New
South Wales Supreme Court was required to consider the validity of a patient's
decision, made in advance, rejecting necessary and life-saving medical treatment.
McDougall J re-examined the 'relevant ... and conflicting principles'222 and in so
doing, endorsed previous decisions which had universally upheld the supremacy of
the principle of autonomy in cases where a conflict between autonomy and the
sanctity of life arose.223 McDougall J said:
217 Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649, 661. However, if there is doubt
regarding the person’s decision-making capacity, the doubt will be resolved in favour of the sanctity
of life. 218 [1992] 4 All ER 649. 219 Airedale NHS Trust v Bland [1993] AC 789. 220 Ibid 864. 221 (2009) 74 NSWLR 88. 222 Ibid [5]. 223 Although His Honour suggested, after reflecting upon the views expressed by Robins J in Malette v
Schulman (1990) 67 DLR (4th) 321, 334 that there may not be conflict as the right to refuse
treatment, and the recognition of that right, is a fundamental constitute of life and as such, 'does not
86 Chapter 3: The Regulatory Framework and Refusal of Paramedic Treatment and Transport
It is in general clear that, whenever there is a conflict between a capable
adult's exercise of the right of self-determination and the State's interest in
preserving life, the right of the individual must prevail.224
Hunter and New England Area Health Service v A225 was the first in a series of
Australian cases involving the application of similar jurisprudential principles.
Brightwater Care Group (Inc) v Rossiter,226 followed in August 2009 and involved a
young man's contemporaneous decision to refuse life-sustaining medical treatment.
During the same month, the Supreme Court of the Australian Capital Territory in
Australian Capital Territory v JT227 considered an application that had been brought
before it, seeking a declaration that it was lawful to withhold artificial nutrition and
hydration in accordance with that requested contemporaneously by the patient. And
in June 2010, the South Australian Supreme Court in H Ltd v J & Anor228 was
required to consider an elderly woman's contemporaneous decision to reject nutrition
and the regular administration of insulin for the management of her diabetes. Each
of these Australian superior court decisions emphasised the right of autonomy
involving decisions about medical treatment, and in circumstances where a conflict
may arise as between the principle of autonomy and the sanctity of life, these
decisions have reinforced that the resolution of that conflict should be decided in
favour of autonomy.229
deprecate the value of life'[16]. See also Lindy Willmott, 'Advance directives and the promotion of
autonomy: A comparative Australian statutory analysis' (2010) 17 Journal of Law and Medicine 557,
558. 224 Hunter and New England Area Health Service v A (2009) 74 NSWLR 88, [17]. His Honour noted
but left to one side, a possible exception where the State's interest may prevail. Such an exception
may arise in circumstances where the State must take 'drastic action' to avert a widespread and
dangerous threat to the health of the citizens at large. 225 (2009) 74 NSWLR 88. 226 [2009] WASC 229. 227 [2009] ACTSC 105. 228 [2010] SASC 176. 229 A number of authors have reviewed the literature including the many cases in which these
competing principles have been considered. See Willmott, above n 203; Willmott, above n 205;
Thomas Faunce, 'Withdrawing treatment at the direct or indirect request of patients or in their best
interest: HNEAHS v A; Brightwater CG v Rossiter; and Australian Capital Territory v JT' (2009) 17
Journal of Law and Medicine, 349; Freckelton, above n 81; Lindy Willmott, Ben White & Ben
Mathews, 'Law, autonomy and advance directives' (2010) 18 Journal of Law and Medicine 36. Lindy
Willmott, 'Advance directives and the promotion of autonomy: A comparative Australian statutory
analysis' (2010) 17 Journal of Law and Medicine 557.
Chapter 3: The Regulatory Framework and Refusal of Paramedic Treatment and Transport 87
3.3 CONTEMPORANEOUS DECISIONS AND THE LAW
Contemporaneous decisions regarding medical treatment are regulated by the
common law. Several jurisdictions, including Canada,230 the United States,231
England,232 New Zealand,233 and Australia,234 each recognise that a competent adult
has a right to refuse all health-related treatment, irrespective of the potential
consequences of that decision.235
In the well-known Canadian case of Malette v Shulman,236 the plaintiff (Mrs
Malette) brought proceedings against a hospital, the hospital executive, the
emergency department doctor and four nurses, following the administration of a
blood transfusion against her expressed wish. Mrs Malette had been involved in a
serious road traffic crash that had claimed the life of her husband. She was taken by
ambulance to a nearby hospital and was unconscious at the time of her admission to
the emergency department. She had lost a significant amount of blood and it became
evident that a blood transfusion was necessary in order to save her life.
Notwithstanding a card that was in her personal belongings rejecting, on religious
grounds, the administration of blood under any circumstances, a blood transfusion
was administered. Whilst this case did not involve a contemporaneous decision to
refuse a blood transfusion, the statement made by Robins JA is very clear with
respect to the law as it applies to decisions about medical treatment in Canada,
including those that are made contemporaneously:
A competent adult is generally entitled to reject a specific treatment or all
treatments, or to select an alternative form of treatment, even if the decision
may entail risks as serious as death and may appear mistaken in the eyes of
the medical profession or of the community. ... it is the patient who has the
final say on whether to undergo treatment.237
230 Malette v Schulman (1990) 67 DLR (4th) 321. 231 Cruzan v Director of Missouri Department of Health, 49 US261 (1990). 232Re B (Adult: Refusal of Medical Treatment [2002] 2 All ER 449; Re C (Adult: Refusal of medical
treatment) [1994] 1 All ER 819; Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649. 233 Re G [1997] 2 NZLR 201; Auckland Area Health Board v A-G (NZ) [1993] 1 NZLR 235. 234 Hunter and New England Area Health Service v A (2009) 74 NSWLR 88; Brightwater Care Group
(Inc) v Rossiter (2009) 40 WAR 84; Australian Capital Territory v JT (2009) 232 FLR 322; H Ltd v J
& Anor (2010) 240 FLR 402. 235 Re B (Adult: Refusal of Medical Treatment) [2002] 2 All ER 449; HE v A Hospital NHS Trust
[2003] 2FLR 408, 414. 236 (1990) 67 DLR (4th) 321. 237 Ibid 328.
88 Chapter 3: The Regulatory Framework and Refusal of Paramedic Treatment and Transport
The decision in Malette v Shulman238 and the reasoning provided by Robbins J
were cited with approval in the English Court of Appeal decision Re T (Adult:
Refusal of Medical Treatment).239 As noted above, this case involved a young
woman (Miss T) who had made a contemporaneous decision to refuse a blood
transfusion. In not dissimilar circumstances to those of Mrs Malette, Miss T had
been involved in a road traffic crash and had been admitted to hospital however, she
was conscious at the time of her admission. Miss T was 34 weeks pregnant at the
time and whilst her general health was poor, there was no evidence to suggest that
Miss T lacked the capacity to make decisions regarding her medical treatment.
When Miss T began to labour prematurely, a decision was made to deliver the baby
by Caesarean section to avoid a further decline in her general condition. Prior to
surgery, Miss T informed a staff nurse that she did not wish to receive any blood
products should the need arise. Miss T provided a reason for her decision being that
she was formerly a Jehovah's Witness and that she had continued to maintain some
of the beliefs of the religion.
After undergoing the surgery, Miss T's condition deteriorated rapidly and the need
for a blood transfusion arose. The treatment was temporarily withheld until such
time as judicial assistance with respect to the validity of Miss T's decision to refuse
the administration of blood products could be obtained. In his judgement, Lord
Donaldson MR made the following statement:
[An] adult patient who, .... suffers from no mental incapacity has an absolute
right to choose whether to consent to medical treatment, to refuse it or to
choose one rather than another of the treatments 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 may be
rational, irrational, unknown or even non-existent'240
The Court ultimately determined that Miss T's decision was not a valid
decision for reasons that are discussed below.
238 Ibid. 239 [1992] 4 All ER 649, 665. 240 Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649, 652-3. Lord Donaldson identified
one possible qualification to this right of choice being a case in which the choice may lead to the death
of an otherwise viable foetus.
Chapter 3: The Regulatory Framework and Refusal of Paramedic Treatment and Transport 89
In Australia, there have been a number of judicial statements made in support
of the law as it has been applied in other common law jurisdictions.241 In F v R,242
the then Chief Justice of the South Australian Supreme Court stated that 'the
paramount consideration is that a person is entitled to make his own decisions about
life'.243 This statement was cited with approval by the High Court of Australia in
Rogers v Whitaker244 after noting that 'all medical treatment is preceded by the
patient's choice to undergo it'.245 It was McHugh J in the High Court decision
Secretary, Department of Health and Community Services (NT) v JWB and SMB 246
that provided very clear support for this common law principle, where His Honour
stated:
The common law accepts that a person has rights of control and self-
determination in respect of his or her body, which other persons must
respect. Those rights can only be altered with the consent of the person
concerned. Thus, the legal requirement of consent to bodily interference
protects the autonomy and dignity of the individual and limits the powers of
others to interfere with that person's body.247
It was not until 2009 that an Australian superior court was first called upon to
consider the case of a competent adult and his or her right to refuse life-saving
medical treatment. There were four cases decided by four separate superior courts
over a period of 13 months.248 The first of these cases, Hunter and New England
Area Health Service v A,249 involved an advance directive refusing specific medical
treatment. The remaining three decisions: Brightwater Care Group (Inc) v
Rossiter;250 Australian Capital Territory v JT;251 and H Ltd v J & Anor252 each
involved contemporaneous decisions rejecting the continuation of medical treatment
241 See discussion in Rothschild, above n 82, 403. 242 (1983) SASR 189. 243 Ibid 193. 244 (1992) 175 CLR 479. 245 Ibid 489. 246 Secretary, Department of Health and Community Services (NT) v JWB and SMB (1992) 175 CLR
218. 247 Ibid 309-10. 248 Hunter and New England Area Health Service v A (2009) 74 NSWLR 88; Brightwater Care Group
(Inc) v Rossiter [2009] WASC 229; Australian Capital Territory v JT [2009] ACTSC 105; H Ltd v J
& Anor [2010] SASC 176. 249 (2009) 74 NSWLR 88. 250 [2009] WASC 229. 251 [2009] ACTSC 105. 252 [2010] SASC 176.
90 Chapter 3: The Regulatory Framework and Refusal of Paramedic Treatment and Transport
that had already been commenced, or the provision of artificial nutrition and
hydration. Each of these decisions adopted the law as it has been applied in other
common law countries, consistently recognising that a competent adult person has a
right to refuse medical treatment, irrespective of their reasons for doing so, and even
if the decision would result in their premature and perhaps unavoidable death.253
The combined authority of these four Australian decisions has also provided a
set of reasonably consistent principles254 that will guide the application of the law by
health professionals, health care agencies, legal advisors, and the courts, when
determining if a patient's refusal of medical treatment is a valid exercise of this
right.255 A summary of these cases is provided below.
Hunter and New England Area Health Service v A:256 The patient in this case
(Mr A), was admitted to the emergency department of a hospital operated by the
Hunter and New England Area Health Service. At the time of his admission his level
of consciousness was decreased, and he was suffering from septic shock and renal
failure.257 Mr A was later transferred to the hospital's intensive care unit where his
physiological decline continued. Life sustaining measures including artificial
ventilation and renal dialysis were instigated after which the hospital became aware
that Mr A, a Jehovah's Witness, had previously prepared a document in which he had
indicated that he would refuse renal dialysis if it were ever required. The Health
Service commenced proceedings in the New South Wales Supreme Court seeking a
declaration that the document was a valid advance care directive and that Mr A's
earlier recorded decision regarding renal dialysis should be respected.
253 Malette v Schulman (1990) 67 DLR (4th) 321; Re T (Adult: Refusal of Medical Treatment) [1992]
4 All ER 649. 254 One area in which there was inconsistency is that which relates to the requirement that information
be provided to a person regarding the effects of decision to refuse treatment. This inconsistency, and
the uncertainty which flows from it, is discussed later in this chapter. 255 See Freckelton, above n 81. The author provides an excellent summary of each case and comments
on the 'substantial jurisprudence' which has evolved through the declarations made by the superior
courts in relation to the cessation of life-sustaining medical treatment and vital nutrition and
hydration, in accordance with a competent patient's express wish, made either contemporaneously or
in advance. Also see Faunce, above n 229. Although the article was published before the fourth and
final case in this series. 256 (2009) 74 NSWLR 88. 257 Whilst not expressly stated in the judgement, Mr A's condition was such that he would have lacked
decision-making capacity at the time of his admission and this state remained constant.
Chapter 3: The Regulatory Framework and Refusal of Paramedic Treatment and Transport 91
McDougall J reviewed a number of decisions from England, Canada and the
United States and quoted extensively from selected cases.258 His Honour noted that
there was not a great body of authority in Australia that dealt with the principles of
law relevant to cases in which a competent adult had refused medical treatment,
either contemporaneously or in advance, and set out a list of eleven principles aimed
at assisting those required to determine the validity of a person's decision to refuse
treatment, acknowledging that all principles may not apply in each and every
circumstance.
The principles, in order, first address the requirement of consent, and the
circumstances in which treatment may be provided without consent, such as an
emergency (principles numbered one to five). Thereafter, the principles address
matters as they relate to ‘advance care directives’ (principles six, eight, nine and ten).
The two principles of most relevance to contemporaneous decisions are listed
as principles seven and eleven. Principle seven states that ‘there is a presumption that
an adult is capable of deciding whether to consent to or to refuse medical treatment
however, the presumption is rebuttable. When considering the question of capacity,
it is necessary to consider both the importance of the decision, and the ability of the
individual to receive, retain and process information given to him or her that bears on
the decision. Principle eleven states that ‘what appears to be a valid consent given by
a capable adult may be ineffective if it does not represent the independent exercise of
the person’s volition: if, by some means, the ‘person’s will has been overborne or the
decision is the result of undue influence, or of some other vitiating circumstance.’259
Following the application of the principles that were relevant to Mr A's
circumstances, McDougall J concluded that Mr A's decision to refuse renal dialysis
was 'a prospective exercise of his right of self-determination; his right to decide what
should be done to his own body'.260
Brightwater Care Group (Inc) v Rossiter:261 As a consequence of three
separate and serious injuries occurring over a time span of ten years, the patient in
258 Schloendorff v Society of New York Hospital 211 NY 125 (1914); Re T (Adult: Refusal of Medical
Treatment) [1992] 4 All ER 649; Airedale NHS Trust v Bland [1993] AC 289; Malette v Shulman
(1990) 67 DLR (4th) 321. 259 Hunter and New England Area Health Service v A (2009) 74 NSWLR 88, [40]. 260 Ibid [56]. 261 [2009] WASC 229.
92 Chapter 3: The Regulatory Framework and Refusal of Paramedic Treatment and Transport
this case (Mr Rossiter) had been rendered a quadriplegic and was totally dependent
upon the health professionals who were caring for him. He was unable to maintain
nutrition and hydration by oral means and in order to survive, sustenance was
provided through a percutaneous endoscopic gastrostomy tube. There was no
prospect of Mr Rossiter improving and in all probability his condition could continue
to deteriorate.
Mr Rossiter clearly and unequivocally indicated to the health care facility in
which he resided, and to the staff responsible for his daily care, that he wished to die.
Unable to bring about his own death, he requested that all medical treatment, with
the exception of pain relief, be ceased and further, that nutrition and hydration be
withheld.262 There was no evidence to suspect that Mr Rossiter was suffering from
impaired decision-making capacity; on the contrary, the court heard evidence that Mr
Rossiter was capable of making reasoned decisions about his own health.263
Martin CJ considered a number of cases that had been determined in other
common law countries264 in addition to the decision, handed down only weeks earlier
in Hunter and New England Area Health Service v A265and thereafter, summarised
the common law as it applies to individual decisions of this kind:
'a person of full age is assumed to be capable of having the mental capacity
to consent to, or refuse, medical treatment'266 ....
‘the right [of autonomy] underpins the established legal requirement that the
informed consent of the patient is required before any medical treatment can
be undertaken lawfully'267.....
‘an individual of full capacity is not obliged to give consent to medical
treatment, nor is a medical practitioner or other service provider under any
262 Ibid [11]. 263 Ibid [14]. 264 Schloendorff v Society of New York Hospital 211 NY 125 (1914); Malette v Shulman (1990) 67
DLR (4th) 321; Airedale NHS Trust v Bland [1993] AC 289; Re T (Adult: Refusal of Medical
Treatment) [1992] 4 All ER 649; Auckland Area Health Board v Attorney [1993] 1 NSLR 235; Re MB
(Medical Treatment) [1997] EWCA Civ 1361; Re B (Adult: Refusal of Medical Treatment) [2002] 2
All ER 449. 265 (2009) 74 NSWLR 88. 266 Brightwater Care Group (Inc) v Rossiter [2009] WASC 229, [23]. 267 Ibid [24]- [25].
Chapter 3: The Regulatory Framework and Refusal of Paramedic Treatment and Transport 93
obligation to provide such treatment without consent, even if the failure to
treat will result in the loss of the patient's life.'268
His Honour concluded that Mr Rossiter had the right to determine whether or
not he would continue to receive the treatment and services provided to him and at
common law, the health care facility and the health professionals would be acting
unlawfully if they continued to provide treatment and services contrary to Mr
Rossiter's express wish.269
Australian Capital Territory v JT,270involved a gentleman (JT) who was
chronically psychotic and suffered from paranoid schizophrenia that was
characterised by religious obsessions. He resisted taking medication for his
condition and would frequently fast as he believed this would bring him closer to
God. Over a period of four years, JT had been the subject of multiple psychiatric
treatment orders and guardianship orders during which time nutrition, hydration and
medication would be forcibly provided to him. Prior to these current proceedings, JT
had been admitted to the Calvary Hospital in a compromised physical state brought
about by his prolonged period of fasting. Attempts to rectify his dehydrated and
malnourished state were met with significant physical resistance from JT and an
application was made to the Australian Capital Territory Supreme Court seeking a
declaration that it would be lawful to withhold nutrition and hydration from him.
Higgins CJ distinguished this case from Brightwater Care Group (Inc) v
Rossiter,271on the basis that JT, unlike Mr Rossiter, 'lacked both understanding of the
proposed conduct (the provision of nutrition and hydration) and the capacity to give
informed consent to it'.272 His Honour acknowledged that if JT had been 'competent
to refuse treatment the situation would be otherwise'.273
H Ltd v J & Anor274involved an application brought by the operator of an aged
care facility in South Australia, seeking a declaration as to whether the agency could
268 Ibid [26]. 269 Ibid [32]. His Honour provided that Mr Rossiter be given advice from an appropriately qualified
medical practitioner as to the consequences that would flow from the discontinuation of treatment and
that this occur before Mr Rossiter makes his final decision [58]. 270 [2009] ACTSC 105. 271 [2009] WASC 229. 272 Australian Capital Territory v JT [2009] ACTSC 105, [29]. 273 Ibid [64]. 274 [2010] SASC 176.
94 Chapter 3: The Regulatory Framework and Refusal of Paramedic Treatment and Transport
comply with the expressed wish of its resident (Mrs J), that the facility cease to
provide nutrition, hydration and medical treatment to her
Mrs J suffered from post-polio syndrome and Type 1 diabetes. Because of the
syndrome, she suffered from progressive weakness that had reached a point at which
she had lost the use of the right side of her body. There was no prospect of recovery
and Mrs J wrote to the facility that was responsible for the provision of her daily care
and advised it of her intention to end her life and to do so by ceasing to take food and
water, and also, by refusing to provide consent for the regular administration of
insulin to control her diabetes.
Kourakis J considered the earlier decision of the New South Wales Supreme
Court in Hunter and New England Area Health Service v A 275 and restated the
principles set out by McDougall J. His Honour also considered the decision of the
Western Australian Supreme Court in Brightwater Care Group (Inc) v Rossiter,276 in
which there were notably similarities between the facts of that case and the matter
that was before him. His Honour adopted the statements of principle set out by
Martin CJ that: 'a person of full capacity is not obliged to give consent to medical
treatment, nor is a medical practitioner or other service provider under any obligation
to provide such treatment without consent'277 and held that 'there is no general
common law duty on providers of high care residential services to provide
sustenance to a resident who refuses it'.278
Each of the aforementioned cases involved patients who were hospitalised or
institutionalised in a health care facility, and in circumstances that cannot be
compared to that which paramedics would typically encounter in the pre-hospital
setting. Notwithstanding, it is clear from this line of authority, that a competent adult
in this country has a right to refuse medical treatment,279 which includes paramedic
275 (2009) 74 NSWLR 88. 276 [2009] WASC 229. 277 Ibid [26]. 278 H Ltd v J & Anor [2010] SASC 176, [36]. 279 The right to refuse however is not absolute. In very limited and strictly regulated circumstances, a
person may be detained, required to submit to a clinical assessment, and provided with treatment
contrary to their express wishes. This may occur, for example, where a person is suffering from a
mental illness and is deemed to have satisfied the criteria as an involuntary patient under the
provisions of the relevant jurisdiction's mental health legislation. See for example the Mental Health
Act 2016 (Qld). It may also occur in situations where the law requires that certain medical assessments
be conducted, for example, to detect alcohol and other substances in the driver of a vehicle involved in
Chapter 3: The Regulatory Framework and Refusal of Paramedic Treatment and Transport 95
treatment and/or ambulance transport, even if that treatment is necessary to avert a
serious risk of harm or to prevent the person's premature death. This was highlighted
by McDougall J in Hunter and New England Area Health Service v A where his
Honour acknowledged that he had spoken in terms of medical treatment, hospitals
and medical practitioners however, the principles are intended to apply more broadly
and include all those who administer medical treatment 'including ambulance officers
and paramedics'.280 Provided that a patient’s decision is valid, a paramedic is
required to respect the person's express wish. Failure to do so may expose the
paramedic to both criminal and civil sanctions.281
What paramedics must consider, is whether the patient’s decision to refuse is
one that is valid at the time that it is made and conveyed
3.4 VALID DECISION
There are two requirements that must be met before a contemporaneous
decision to refuse treatment would be deemed to be valid under common law. The
first requirement is that the person is competent or has the requisite decision-making
to make the decision at hand.282 The second requirement is that the decision is made
voluntarily, free from coercion or undue influence, and is not made based on false or
misleading information.283
It is possible that a third requirement may exist, that being the requirement that
the person be properly informed of the nature and consequences of their decision to
refuse paramedic treatment or transport. There is a degree of uncertainty
surrounding this issue, however it will be argued in this thesis, that the provision of
information to a patient who is refusing paramedic treatment, in the pre-hospital
setting, is essential if the paramedic is to properly evaluate the patient’s decision-
making capacity and to do so having regard to the risks to which the patient is
exposed. A more fulsome discussion of this point follows later in this chapter.
a road traffic crash. See for example the Transport Operations (Road Use Management) Act 1995
(Qld), s80. 280 See Hunter and New England Area Health Service v A (2009) 74 NSWLR 88, [41]. 281 Assault (criminal sanction) and trespass to person (civil sanction). See for example: Re T (Adult:
Refusal of Medical Treatment) [1992] 4 All ER 649; Hunter and New England Area Health Service v
A (2009) 74 NSWLR 88; Brightwater Care Group (Inc) v Rossiter [2009] WASC 229. 282 Re B (Adult: Refusal of Medical Treatment) [2002] 2 All ER 449. 283 Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649.
96 Chapter 3: The Regulatory Framework and Refusal of Paramedic Treatment and Transport
Decision Making Capacity
A competent person is one who is capable of or has the capacity to understand
the nature and purpose of the treatment that has been proposed, and the potential
consequences or risks if the treatment is not provided.284
At common law, an adult person is presumed to have the capacity to provide
consent, or refuse medical treatment unless and until the presumption is rebutted.285
This presumption of capacity principle implies that it is incompetence or reduced
decision-making capacity that would need to be established in order to rebut the
principle, and not an assessment to determine if competence can be demonstrated.286
The test to determine if a person possesses the requisite decision-making
capacity is a legal test, however the test is frequently and necessarily, carried out by
health professionals in various clinical settings,287 and seemingly carried out with
varying degrees of difficulty.288
The 1992 decision of Re T (Adult: Refusal of Medical Treatment),289 was
decided at a time when there 'was little or no guidance from reported authorities' with
respect to the resolution of a matter involving an adult's decision to refuse life-saving
284 The terms 'capacity' and 'competence' are both used in cases dealing with decision-making and
appear to be used interchangeably. See Richards, above n 214. The author identifies that case law
overwhelmingly favours the term 'capacity'. 285 Re MB (Medical Treatment) [1997] 2 FCR 514, 553; Re C (Adult: Refusal of Treatment) [1994] 1
WLR 290, 294; HE v A Hospital NHS Trust [2003] 2FLR 408, 414-5; Hunter and New England Area
Health Service v A (2009) 74 NSWLR 88; Brightwater Care Group (Inc) v Rossiter [2009] WASC
229 [23]. 286 See discussion in Parker, above n 66, 491. The author raises concern regarding possible
inconsistencies between legal requirements and assessment procedures and findings of health
professionals tasked with assessing decision-making capacity. 287 Queensland Law Reform Commission, A Review of Queensland's Guardianship Laws, Report No
67 (2010) 7.258; Cameron Stewart and Paul Biegler, 'A primer on the law of competence to refuse
medical treatment' (2004) 78 Australian Law Journal 325; Appelbaum, above n 52. 288 Perhaps evidenced by the differing opinions offered by several medical practitioners in a number of
cases, most notably, Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290, 292 and Re B (Adult:
Refusal of Medical Treatment) [2002] 2 All ER 449, where Butler-Sloss P acknowledged that the
application of this law by medical practitioners in various health care settings was difficult. See also:
Malcolm Parker, 'Patient competence and professional incompetence: Disagreements in capacity
assessments in one Australian jurisdiction, and their educational implications' (2008) 16 Journal of
Law and Medicine 25, 27. The author surveyed 285 decisions of the Queensland Guardianship and
Administration Tribunal between 2005 and 2008 for the purpose of identifying the frequency with
which there was a disagreement between health professionals in relation to capacity assessments that
the professionals had conducted. The author noted that in 71.3% of cases, there was agreement
however, in 28.7% of cases the health professionals could not agree on the level of capacity of the
individual patient. See also, Victorian Law Reform Commission, Guardianship: Final Report Report
No 24 (2012) 7.146. The Commission complexity of conducting capacity assessments and the lack of
objective tests that may assist health professionals with this task. 289 [1992] 4 All ER 649.
Chapter 3: The Regulatory Framework and Refusal of Paramedic Treatment and Transport 97
medical treatment, and more specifically, the assessment of decision-making
capacity. In acknowledging this fact, Donaldson LJ stated that the appeal had a
wider purpose, that being: 'to provide guidance to hospital authorities and to the
medical profession on the appropriate response to a refusal by an adult to accept
treatment’.290
In relation to the question of decision-making capacity, Donaldson LJ noted
that a person could be deprived of capacity as a consequence of mental illness or an
intellectual disability, but that their capacity could also be reduced, albeit
temporarily, by such factors a drug and alcohol toxicity; hypoxia; confusion; fatigue;
and pain.291These are factors that paramedics commonly encounter.
In the later decision of Re MB (Medical Treatment),292 Butler-Sloss LJ referred
to these 'temporary factors' identified by Donaldson LJ in Re T (Adult: Refusal of
Medical Treatment),293 and commented that such factors 'may completely erode
capacity but those concerned must be satisfied that such factors are operating to such
a degree that the ability to decide is absent'.294 The mere presence of one or more of
these conditions cannot, of itself, mean that the patient lacks the requisite capacity to
decide.295
Capacity is not a fixed state and the factors mentioned above, both those that
are permanent and those that are transient, could have varying effects on different
individuals and their capacity to make decisions about medical treatment. In each
case, it is important to determine if the patient has a level of decision-making
capacity that is commensurate with the decision that is to be made. The more serious
the decision in terms of the risk involved, the higher the level of capacity that is
required.296 Lord Donaldson MR articulated this in Re T where he stated:
What matters is that the doctors should consider whether at the time [the
patient] had a capacity which was commensurate with the gravity of the
290 Ibid 660. 291 Ibid 661. 292 [1997] 2 FLR 426. 293 [1992] 4 All ER 649. 294 Ibid 440. 295 Ibid. 296 Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649, 661; Re B (Adult: Refusal of
medical treatment [2002] 2 All ER 449, 472.
98 Chapter 3: The Regulatory Framework and Refusal of Paramedic Treatment and Transport
decision which he [or she] purported to make. The more serious the
decision, the greater the capacity required.297
Some commentators have interpreted this statement as confusing and believe
that Lord Donaldson intended the statement to mean that a greater degree of scrutiny
was required, by the health provider, as to whether or not the person had decision-
making capacity, a yes-no proposition, and not that a greater level of capacity is
required by virtue of the potentially grave consequences of the decision.298
However, the law is clear. There is no sharp dichotomy between capacity and
no capacity, rather, 'a scale running from capacity at one end through reduced
capacity to lack of capacity at the other' and the determination of whether or not a
person has capacity to make a decision, necessarily requires consideration of the
importance of the decision, and potential consequences of the decision to refuse.299
A useful starting point when considering decision-making capacity, would be
to first acknowledge that a person cannot be said to lack capacity simply because
their decision to refuse medical treatment is seen as unwise or is contrary to that
which the health professional has recommended.300 According to Butler-Sloss LJ in
Re T (Adult: Refusal of Medical Treatment): 'A decision to refuse medical treatment
by a patient capable of making the decision does not have to be sensible, rational or
well considered'.301
These comments were cited with approval by Martin CJ in Brightwater Care
Group (Inc) v Rossiter,302and McDougall J in Hunter and New England Area Health
Service v A, although in the latter case, it suggested that the lack of discernible basis
for a decision to refuse treatment may be a factor that should be taken into
consideration when assessing decision making capacity.303 His Honour did caution
those responsible for the assessment of decision-making capacity, stating that the
297 Ibid. Endorsed and applied by Butler-Sloss P in Re B (Adult: Refusal of medical treatment [2002] 2
All ER 449, 472. 298 See comments in John Devereux and Malcolm Parker, 'Competency Issues for Young Persons and
Older Persons' in Ian Freckelton and Kerry Petersen (eds), Disputes and Dilemmas in Health Law
(The Federation Press, Sydney: 2007) 54, 62; Stewart & Biegler, above n 287, 333; Parker, above n
66, 487. 299 Hunter and New England Area Health Service v A (2009) 74 NSWLR 88, [24]. 300 Malette v Schulman (1990) 67 DLR (4th) 321, 328.
301
[1992] 4 All ER 649, 664. 302 [2009] WASC 229, [27]. 303 Hunter and New England Area Health Service v A (2009) 74 NSWLR 88, [15].
Chapter 3: The Regulatory Framework and Refusal of Paramedic Treatment and Transport 99
assessment should hinge on the decision-making process and not the actual decision
itself. This was clearly articulated in the guidelines provided by Butler-Sloss P in Re
B (Adult: Refusal of Medical Treatment),304 a case that involved a young tetraplegic
woman and her contemporaneous request that artificial ventilation be discontinued:
If there are difficulties in deciding whether the patient has sufficient mental
capacity, particular if the refusal may have grave consequences for the
patient, it is most important that those considering the issue should not
confuse the question of mental capacity with the nature of the decision made
by the patient, however grave the consequences. The view of the patient
may reflect a difference in values rather than an absence of competence and
the assessment of capacity should be approached with this firmly in mind.
The doctors must not allow their emotional reaction to or strong
disagreement with the decision of the patient to cloud their judgment in
answering the primary question whether the patient has the mental capacity
to make the decision.305
Whilst it was clear that capacity was concerned with the ability to understand, there
were no judicially approved tests with respect to how understanding was to be
assessed. The test that was ultimately adopted at common law first evolved from the
English decision in Re C (Adult: Refusal of Medical Treatment).306 The court in this
case was required to consider whether Mr C, who suffered from chronic paranoid
schizophrenia and delusional thought processes, was capable of deciding to refuse
surgical amputation of his gangrenous leg.307 The evidence of the expert witnesses
was divided and Thorpe J, guided by a test that had been used in psychiatry,
304 Re B (Adult: Refusal of Medical Treatment) [2002] 2 All ER 449. 305 Ibid. See discussion in Joanna Manning, 'Autonomy and the Competent Patient's Right to Refuse
Life-prolonging Medical Treatment - Again, (2002) 10 Journal of Law and Medicine 239, 241;
Willmott, above n205, 320-21. The author submits that some members of the judiciary experience
difficulty when confronted with a case in which the patient has made a 'socially unaccepted treatment
choice' or where a finding of capacity may uphold a refusal that will result in the individual's death,
referring to NHS Trust v T (Adult Patient: Refusal of Medical Treatment) [2005] 1 All ER 387 as a
case on point. 306 [1994] 1 WLR 290. See discussion in David Lock, ‘The Test for Capacity’ in Andrew Grubb,
Judith Laing and Jean McHale (eds), Principles of Medical Law (Oxford University Press, Oxford,
2010) 473, 476. 307 Re: C (Adult: Refusal of Medical Treatment) [1994] 1 WLR 290. Mr C refused the amputation but
provided consent for conservative treatment. The hospital however, could not provide an undertaking
that the limb may be removed at some time in the future. Mr C sought an injunction to prevent
amputation without his written consent.
100 Chapter 3: The Regulatory Framework and Refusal of Paramedic Treatment and Transport
formulated criteria against which he then determined the issue of Mr C's decision-
making capacity. The criteria, or test to assess capacity requires that the person:
• be able to comprehend and retain treatment information;
• believe it; and
• weigh it in the balance to arrive at a choice. 308
The criteria set out by Thorpe J in Re C (Adult: Refusal of Medical
Treatment),309 embraced three fundamental elements of the decision-making process:
retention of information; comprehension; and reasoning. The test was authoritatively
approved by the English Court of Appeal in Re MB (Medical Treatment)310 where
Butler-Sloss LJ stated:
A person lacks capacity if some impairment or disturbance of mental
functioning renders the person unable to make a decision whether to consent
to or to refuse treatment. That inability to make a decision will occur when:
a) the person is unable to comprehend and retain the information which is
material to the decision, especially as to the likely consequences of having or
not having the treatment in question; or
b) the patient is unable to use the information and weigh it in the balance as
part of the process of arriving at a decision.311
The matter arose from an application that had been lodged by a Health
Authority seeking a declaration that it was lawful to perform a caesarean section on a
young woman who was 40 weeks pregnant, in early labour, and with a footling
breech presentation. The woman had provided consent for the procedure, however,
due to a phobia of needles, had refused to allow the anaesthetic to be conducted
using needles, and refused to allow blood to be taken. The High Court granted the
application, and the young woman appealed the decision. In her judgement, Butler-
Sloss LJ, applied the common law test that had been formulated in Re C (Adult:
Refusal of Medical Treatment), noting the comments of Thorpe J, that if the patient
suffers from a compulsive disorder or phobia of some kind, this factor may be
relevant, particularly if the disorder stifles the patient's belief in the information that
308 Ibid 295. 309 [1994] 1 WLR 290. 310 Re MB (Medical Treatment) [1997] 2 FLR 426, 437. 311 Ibid.
Chapter 3: The Regulatory Framework and Refusal of Paramedic Treatment and Transport 101
has been provided. If that were the case, the decision to refuse treatment may not be
a true one.
The requirement that the person 'believe' the information as originally set out
by Thorpe J in Re C (Adult: Refusal of Medical Treatment), has not been repeated in
subsequent decisions that involve questions regarding decision-making capacity,
including the later decision of Butler-Sloss P in Re B (Adult: Refusal of Medical
Treatment).312
The common law definition of capacity, and the test developed by Thorpe J in
Re C (Adult: Refusal of Medical Treatment) influenced the drafting of statutory
definitions of capacity in numerous instruments.313 The definition adopted by the
Queensland Legislature, in both the Powers of Attorney Act 1998314 and the
Guardianship and Administration Act 2000315 means that a person is capable of:
(a) understanding the nature and effect of decisions about the matter;
(b) freely and voluntarily making decisions about the matter; and
(c) communicating the decision in some way.
Similar to the common law definition, the statutory definition of capacity
adopts a functional approach, which maximises an individual’s autonomy by
focusing on their ability to make a single decision about a particular matter, and to do
so at the time the decision is to be made.316 The definition is said to be flexible, in
that it will cover decision-making across a wide range of circumstances, and by
virtue of it being a statutory definition, provides far greater legal certainty than the
common law definition.317
The definition involves three limbs, each of which must be satisfied.318 The
first limb addresses understanding and cognitive functioning and is reflective of the
312 [2002] 2 All ER 449. 313 See discussion in Andrew Grubb, 'Competent adult patient: Right to refuse life-sustaining
treatment' (2002) 10 Medical Law Review 201, 203. 314 Powers of Attorney Act 1998 (Qld), sch 3. 315 Guardianship and Administration Act 2000 (Qld), sch 4. 316 By comparison, the status approach links decision-making to the person’s status or characteristic
such as intellectual disability or mental illness. A third approach is the outcome approach, which
determines capacity in accordance with the outcome of the decision and if the decision accords with
the assessor’s views and values. See discussion in Queensland Law Reform Commission, A Review of
Queensland's Guardianship Laws, Report No 67 (2010) 7.102. 317 Ibid [7.133]. 318 Ibid [7.126].
102 Chapter 3: The Regulatory Framework and Refusal of Paramedic Treatment and Transport
common law requirement that the person is capable of understanding the nature and
consequences of the decision.319
The second limb, which was inserted into the definition at the time the
Guardianship and Administration Act was enacted in 2000, incorporates a
requirement of voluntariness. Whilst voluntariness is a pre-requisite of a valid
common law decision,320 it stands alone and is not bound to the definition or
assessment of capacity at common law, as it is under the guardianship legislation.
The inclusion of voluntariness as a limb of the statutory definition could result in a
conclusion that a person, capable of understanding the nature and consequence of
their decision, could still be deemed to lack capacity if they have been unduly
influenced, the result of having been overborne by another and unable to make their
own decision.321
The third limb of the statutory definition relates to the ability to communicate
the decision, a requirement that is not articulated in the common law definition of
capacity. The physiological inability to communicate, by any means available, does
not necessarily mean that a person lacks the ability to actually make the decision.322
The inclusion of communication in the statutory definition may encourage a fulsome
investigation, by the attending health provider, of all available means by which a
patient may communicate their decision. In the event that these efforts do not
succeed, and the patient is unable to convey their decision, the statutory definition
would result in a conclusion that the patient lacked decision-making capacity and
thereafter, a substitute decision-maker would be authorised to make decisions for and
on behalf of the person.323
The common law definition of capacity would be relevant and applicable in
circumstances where a paramedic, confronted with a patient’s contemporaneous
319 Ibid [7.135]. See also John Devereux Malcolm Parker, above n 298, 57-8. 320 Re T (Adult: Refusal of Medical Treatment [1992] 4 All ER 649. 321 Queensland Law Reform Commission, A Review of Queensland's Guardianship Laws, Report No
67 (2010) [7.168]. The Queensland Law Reform Commission considered it appropriate to retain this
second limb of the definition, which essentially facilitated an evaluation of the individual’s ability ‘to
make decisions freely and voluntarily’ [7.208]; See also, Re ZJ [2006] QGAAT 36, [33]; Re SZ [2010]
QCAT 64, [34]. 322 Victorian Law Reform Commission, Guardianship: Final Report, Report No 24 (2012), [7.144]. 323 Ibid [7.213].
Chapter 3: The Regulatory Framework and Refusal of Paramedic Treatment and Transport 103
decision to refuse treatment or transport, must determine if the patient has the
requisite decision-making capacity to make that decision, at the relevant time.
Following a determination that the patient lacks the requisite decision-making
capacity to make the decision regarding paramedic treatment and/or transport, the
statutory definition of capacity would then be relevant when considering if the matter
fell under the guardianship legislation, such as obtaining appropriate authorisation
for the provision of health care,324 or providing treatment that is required urgently in
order to avert a serious risk to the person’s life or health.325
Voluntary Decision
A decision to refuse medical treatment must be a voluntary decision and one
that is free from coercion or undue influence. The English Court of Appeal
addressed this issue in Re T (Adult: Refusal of Medical Treatment),326 the facts of
which were discussed earlier in this chapter.327
The doctrine of undue influence is an equitable doctrine that developed outside
the context of health care and decisions regarding medical treatment.328 The doctrine
provides remedies for people in vulnerable positions who have been induced, or
improperly ‘influenced’ by another to take actions, or make decisions in a manner
that is contrary to their own wishes and their own free will.329
Not all influence will be regarded as undue influence such that it would
invalidate a decision to consent to or refuse treatment. The Court of Appeal in Re T
(Adult: Refusal of Medical Treatment) provided a clear distinction between that
which was acceptable influence, and that which would be undue influence in the eyes
of the law. According to Staughton LJ, every decision is made with some degree of
324 Guardianship and Administration Act 2000 (Qld), s66. 325 Ibid, s63. 326 Re T (Adult: Refusal of Medical Treatment [1992] 4 All ER 649. 327 See section 3.2 of this chapter. 328 In areas of the law that dealt with property law and succession law. 329 See discussion in Shaun Pattinson, ‘Undue Influence in the Context of Medical Treatment’ (2002)
5 Medical Law International 305. The author cites a number of surety wife cases that provide an
‘enlightening analysis’ of the doctrine but is critical of lack of development of the doctrine as it
applies to decisions regarding medical treatment. There are two types of cases involving undue
influence. The first type of case involves ‘actual undue influence’ which is established by the facts
that are presented to a court. The onus of proving undue influence falls to the party seeking to set
aside the decision. The second type of case involves ‘presumed undue influence’, where a court will
presume influence on the basis of the relationship between the parties. Examples of such relations are
those involving spouses or lawyers and clients.
104 Chapter 3: The Regulatory Framework and Refusal of Paramedic Treatment and Transport
influence, such as that offered by family members and friends, and to some degree,
health professionals during the course of providing advice. This ‘influence’ is
acceptable. If, however, the extent of external influence is such 'as to persuade the
patient to depart from [their] own wishes', then that influence would be regarded as
undue.330
According to Lord Donaldson, the question that should be asked in each case,
is:
“Does the patient really mean what he says or is he merely saying it for the
quiet life, to satisfy someone else or because the advice and persuasion to
which he has been subjected is such that he can no longer think and decide
for himself? In other words, is it a decision expressed in form only, not in
reality?”331
When evaluating the effect of external influence on a patient and questioning
whether a decision is expressed purely in form only, Lord Donaldson MR identified
two areas that should be closely examined. The first area is the patient's physical and
emotional state, which His Lordship identified as factors that may weaken the
patient's 'strength of will' at the time that they were called upon to make a decision.
The second area that should be evaluated is the relationship that exists between the
parties, for example, the person or persons who are exerting the influence, and the
patient who is subjected to the influence.332 According to his Lordship, influence can
be much stronger in certain relationships, such as that shared between spouses and
between parents and their children.333
In Re T (Adult: Refusal of Medical Treatment), the Court was required to
consider whether Miss T’s decision to refuse a blood transfusion had been unduly
influenced by her mother, a deeply committed Jehovah's Witness whose religious
beliefs forbade the administration of blood or blood products.334
The Court examined the matrimonial history of Miss T’s parents, and factors
relating to T’s youth and the relationship that she shared with both parents, factors
that were considered to be relevant to the question that was before the Court
330 Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649 331 Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649, 662 332 Ibid. 333 Ibid. 334 See Chapter 2 above for a discussion of Re T (Adult: Refusal of Medical Treatment) and this point.
Chapter 3: The Regulatory Framework and Refusal of Paramedic Treatment and Transport 105
regarding the voluntariness of Miss T’s decision. In addition to these factors, the
Court also considered Miss T’s physical and emotional state at the time that the
decision to refuse a blood transfusion was made.
Miss T’s parents separated when she was three years old. Initially, Miss T
resided with her father before custody was granted to Miss T’s mother under a
custody order that expressly forbade Miss T being raised as a Jehovah’s Witness. At
the age of 17, Miss T reunited with her father and soon thereafter, relocated to live
with her paternal grandmother. This arrangement continued for approximately 12
months whereupon Miss T elected to reside with her partner ‘C’ who was the father
of her then, unborn child. The evidence that was received from both Miss T’s father
and partner was that she did not practice as a Jehovah’s Witness, did not live her life
according to the tenets of the religion, and had made no mention to either of them
regarding her views in relation to blood transfusions.
While in hospital, Miss T was experiencing significant pain necessitating the
administration of narcotic analgesia. She had also been observed to experience
periods of disorientation. Prior to the surgery and while medicated, Miss T spent
time alone with her mother. There was no evidence regarding what transpired during
these sessions however, immediately following, Miss T informed hospital personnel
that she did not wish to receive a blood transfusion should a transfusion be deemed
necessary.
The Court of Appeal ultimately determined that Miss T’s will had been
overborne by her mother and that the decision to refuse a blood transfusion was not a
true reflection of her wishes.
The Court of Appeal considered the findings of Re T (Adult: Refusal of
Medical Treatment),335 as they related to the question of undue influence, in the 2002
decision of the Court in Mrs U v Centre for Reproductive Medicine.336 The case
involved an appeal against a decision of the President of the Family Division of the
court regarding the alleged influence of Mr U to withdraw his consent for the
respondent to posthumously store his semen for use in an in-vitro fertilization (IVF)
program involving his wife.
335 [1992] 4 All ER 649. 336 Mrs U v Centre for Reproductive Medicine [2002] EWCA Civ 565.
106 Chapter 3: The Regulatory Framework and Refusal of Paramedic Treatment and Transport
Mr and Mrs U were participating in an IVF program, which involved the
surgical extraction of Mr U’s semen and Mrs U’s eggs, fertilizing the eggs and then
transferring the resulting embryos into Mrs U’s uterus. Mr U had provided consent
for the surgical extraction of his semen however, he was later asked by the Centre’s
nurse to change the consent form to remove the requirement that his semen be stored
and used following his death. Storage of the semen in these circumstances was
contrary to the Centre’s policy and if consent had not been withdrawn, the scheduled
procedure to transfer the fertilized embryos into Mrs U’s uterus, would need to be
delayed so that the couple could undergo further counselling which related to the
issue of storage. The couple were reluctant to delay the procedure.
The first implantation of fertilized embryos was unsuccessful, and Mr U
unexpectedly died soon thereafter. The Centre then made an application to the court
for Mr U’s semen to be destroyed. Mrs U claimed that Mr U was ‘pressured’ into
withdrawing his consent for his semen to be posthumously stored and used, as he did
not wish to delay the procedure to transfer the fertilized embryos. The Court of
Appeal dismissed the appeal and upheld the decision of Butler-Sloss P,337 who
concluded that to establish undue influence, Mrs U would have needed to show
something more than pressure. It is not the pressure, or the degree of persuasion that
is applied, it is consequences of it, and if the persuasion was such that it resulted in
the overbearing of the patient’s independence.338 Butler-Sloss P was not convinced
that the Centre’s nurse had overborne Mr U to the point that he agreed to withdraw
consent contrary to his wish:
It is difficult to say that an able, intelligent, educated man of 47, with a
responsible job and in good health, could have his will overborn so that the
act of altering the form and initialling the alterations was done in
circumstances in which Mr U no longer thought and decided for himself.339
In addition to undue influence, a patient’s decision regarding health care would
also be invalidated in circumstances where the patient has been compelled by threats
or has formed erroneous beliefs induced by false or misleading information.
337 Centre for Reproductive Medicine v U [2002] EWHC 36, [22]. 338 Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649, 669. 339 Centre for Reproductive Medicine v U [2002] EWHC 36, [28].
Chapter 3: The Regulatory Framework and Refusal of Paramedic Treatment and Transport 107
In Beausoleil v Communitie des Soeurs de la Providence et al,340 the Quebec
Court of Appeal was required to consider, among other matters, the validity of a
patient’s decision in relation to the type of anaesthetic that was to be administered
prior to the patient undergoing back surgery. Dame Beausoleil was admitted to
hospital for the purpose of an elective ‘disc operation’ under a general anaesthetic.
The patient had been pre-medicated and taken to the operating room where the staff
anaesthetist, and then the chief anaesthetic attempted to persuade her to agree to a
spinal anaesthetic however she expressly refused. Both anaesthetists continued to
pressure Dame Beausoleil and did so with full knowledge of her having received a
sedative and after hearing her repeatedly state her wishes regarding a general
anaesthetic. Dame Beausoleil finally yielded to their requests and agreed to the spinal
anaesthetic, although with no recollection of doing so. The Court held that Dame
Beausoleil had not provided a ‘full and free consent’ and that she had been pressured
by the anaesthetists to alter her decision to refuse the spinal anaesthetic. 341
3.5 PROVISION OF INFORMATION
The provision of information about paramedic treatment, including the various
options, risks and consequences of treatment, or no treatment as the case may be, is
clearly a relevant factor from both a clinical and legal perspective. What is not
clear, is how the law treats the provision of information in circumstances were a
person has made a contemporaneous decision to refuse, and in circumstances where
the person has the capacity to receive information, consider it, and thereafter, make
an informed decision.
There is no dispute that a consent for medical treatment will be invalid unless
the patient has been provided with information 'in broad terms,' regarding the nature
and effect of the treatment. A failure to provide this information would give rise to
an action in trespass.342
It is also clear that the information provided must be accurate. Providing a
patient with false information or making statements that are misleading, whether
made deliberately or by mistake, may also invalidate a patient’s decision regarding
340 Beausoleil v Communitie des Soeurs de la Providence (1964) 43 DLR 65. 341 Beausoleil v Communitie des Soeurs de la Providence (1964) 43 DLR 65. 342 Chatterton v Gerson (1981) 1 QB 432, 443. Cited with approval in Rogers v Whitaker (1992) 174
CLR 479, 489-90.
108 Chapter 3: The Regulatory Framework and Refusal of Paramedic Treatment and Transport
health care.343 In the Appleton & Ors v Garrett,344 a dentist was found to be liable in
trespass for carrying out unnecessary dental treatment on his patients, and doing so
with the knowledge that the patients would not have agreed if they knew the
treatment was not necessary. The patients had provided consent for the treatment
and did so on the basis of the false information that had been provided to them. As
such, their decision to consent did not constitute a valid decision.
In 2012, the New South Wales Court of Appeal handed down its judgement in
Dean v Phung,345 a case that involved similar facts to those in Appleton & Ors v
Garrett. Mr Dean had suffered a relatively minor workplace injury that resulted in
some damage to his front teeth. He consulted the defendant, a practicing dental
surgeon, who performed extensive and what was later found to be unnecessary dental
surgery over a period of twelve months. Of relevance, the court found that the
dentist was liable in trespass for reason that Mr Dean’s decision was not valid,
affirming the principle that a decision can be invalidated by ‘innocent
misrepresentation or maladministration by the practitioner or [agency], or fraud on
the part of the practitioners.346
When a paramedic makes representations such as to the purpose and necessity
for conducting a particular assessment, carrying out a recommended treatment, or the
likely outcome in terms of risks associated with a decision to refuse treatment and/or
transport services, the representations that are made must be truthful.347
R v Jones,348 involved an appeal against a conviction for the indecent assault of
a female patient by a paramedic. According to the evidence before the Court, the
appellant paramedic worked in a small community in Queensland where he was
often required to work alone as a single officer response. On the day of the assault,
Jones attended at the residence of a former patient and advised the patient that the
doctor, who had treated her on a visit to hospital two days earlier, had requested that
a follow up electrocardiogram be recorded. The doctor had made no such request and
343 Appleton & Ors v Garrett (1997) 8 Med LR 75. 344 Ibid. 345 Dean v Phung [2012] NSWCA 223. 346 Ibid [58]. 347 R v Jones [2011] QCA 19. 348 Ibid.
Chapter 3: The Regulatory Framework and Refusal of Paramedic Treatment and Transport 109
the appellant denied making a statement to that effect. The patient consented to the
procedure on the basis of the alleged misrepresentation made by the paramedic.
The appellant was convicted of indecent assault. On appeal, the court found
that the trial judge had erred in directing the jury regarding the relevance of the
paramedic’s intention when considering if the assault was indecent. The conviction
was overturned, and a retrial was ordered. The court noted that the paramedic had
not been charged with the lesser alternative of common assault and had this been
available to the jury, the court opined that the appellant may well have been
convicted of assault ‘if the jury had accepted that the appellant obtained the
complainant’s consent to the further procedure by fraudulently representing that he
came at the behest of the doctor’.349
The representation made by a paramedic to a patient who declined ambulance
services was considered by the Coroner’s Court of Victoria in the 2017 Inquest into
the death of Stacey Yean.350 Paramedics attended Ms Yean, a 23 year old with a
history of asthma, who had developed severe abdominal pain and vomiting against a
backdrop of a suspected chest infection. A clinical assessment was conducted and
Ms Yean’s vital signs were recorded to be within normal limits.
The senior paramedic in attendance advised Ms Yean that it was likely that she
was suffering a “gastric bug” and that her condition did not mandate transport to
hospital. Nevertheless, the paramedic maintained that she told Ms Yean that if she
wished, she could transport her to hospital for assessment, however she indicated that
there could be some delay accessing the hospital, due to ambulances “ramped up”,
something that she had observed earlier when at the hospital. Ms Yean ultimately
declined the offer of transportation, preferring to remain at home. Ms Yean died
later that night and the cause of death could not be determined.
Coroner Bryne concluded that Ms Yean’s decision was ‘no doubt influenced
by the prospect of a significant delay’351 and that it was reasonable for the paramedic
to provide this advice, if the paramedic knew the information to be correct, at the
time that it was provided.
349 R v Jones [2011] QCA 19, [29]. 350 Inquest into the Death of Stacey Louise Yean (Coroner's Court of Victoria, Coroner Byrne SM, 23
March 2017). 351 Ibid [66].
110 Chapter 3: The Regulatory Framework and Refusal of Paramedic Treatment and Transport
I do not consider it unreasonable for a paramedic to advise a patient there
may well be a significant delay in being seen at an Emergency Department,
particularly if the paramedic has observed ambulances “ramped” earlier in
the day.352
However, if the paramedic did not have any personal or recent knowledge of a
lengthy delay at the hospital emergency department, the provision of information
regarding a delay, could amount to a misleading statement. If the patient relied upon
such a statement, or was influenced by it during their decision-making process, the
decision would amount to an invalid decision.
Requirement of a Valid Decision to Refuse?
Consistent with that required for a valid consent, it has been suggested that a
contemporaneous decision to refuse medical treatment cannot be respected unless
and until the patient has been provided with information regarding the nature of their
condition, and the consequences of refusing the treatment that has been
recommended.353 However, there is a division of opinion in this regard, both
judicially and those in associated academic commentary. This issue remains
unresolved.
As discussed above, it is clear that consent for medical treatment will not be
valid unless the patient has been provided with information 'in broad terms’.354
It is also clear that a health professional, and more specifically a medical
practitioner, has a duty to inform a patient of risks associated with the treatment that
is proposed. A failure to provide this information may give rise to an action in
negligence if the patient were to suffer harm but would not invalidate the consent if
the patient still received information 'in broad terms'.355
It is likely that the division of opinion regarding the requirement of information
in the context of a refusal stemmed from the dictum of Lord Donaldson MR in Re T
(Adult: Refusal of Medical Treatment), where His Lordship stated:
352 Ibid. 353 Ian Kennedy and Andrew Grubb, Medical Law (Butterworths, London, 3rd ed, 2000) 3. 354 Chatterton v Gerson (1981) 1 QB 432, 443. Cited with approval in Rogers v Whitaker (1992) 174
CLR 479, 489-90. 355 Rogers v Whittaker (1992) 174 CLR 479, 489-90. This duty relates to risks that are ‘material’ or
one that the patient, or a reasonable person, would attach significance to if advised. The duty has been
reinforced in Queensland by the Civil Liability Act 2003 (Qld), s21.
Chapter 3: The Regulatory Framework and Refusal of Paramedic Treatment and Transport 111
What is required is that the patient knew in broad terms the nature and effect
of the procedure to which consent (or refusal) was given.356
Lord Donaldson also referred to the duty of a medical practitioner to provide
the patient with 'full information' as to the nature of the treatment and the likely risks,
including those risks which His Lordship described as 'special risks', before restating
the law that a failure to perform this duty sounded in negligence and did not vitiate a
consent or refusal.357
However, Lord Donaldson did not expressly refer to the potential
consequences that may arise when failing to provide the lesser standard of
information or information ‘in broad terms’, only that the provision of incorrect
information, or the failure to provide information that had been expressly or
impliedly sought by the patient, would vitiate a refusal to consent.
Reference to the provision of information was also made by Butler-Sloss P in
the case of Re B (Adult: Refusal of Medical Treatment) [2002],358 a matter involving
a young woman's contemporaneous request that life-sustaining medical treatment be
discontinued. At the completion of the judgement, Butler-Sloss P provided a list of
ten guidelines, presumably for the helpful assistance of health professionals and
health care agencies when required to manage cases of this kind. Of relevance is the
guideline listed as (ii):
If mental capacity is not in issue and the patient, having been given the
relevant information and offered the available options, chooses to refuse the
treatment, that decision is to be respected by the doctors.'359
In this case, the patient was already receiving life-sustaining treatment and her
refusal related to the continuation of that treatment. Butler-Sloss P does not state that
a failure to provide the patient with relevant information would invalidate a decision
to refuse. The statement does however suggest that information should be provided
to the patient before the treatment to which the refusal relates, is withdrawn.
356 Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649, 663. 357 Ibid. 358 Re B (Adult: Refusal of Medical Treatment) [2002] 2 All ER 449. 359 Re B (Adult: Refusal of Medical Treatment) [2002] 2 All ER 449, 469. The principles were based
upon those which were given by the Court of Appeal in St George's Healthcare NHS Trust v S [1999]
Fam 26, 63.
112 Chapter 3: The Regulatory Framework and Refusal of Paramedic Treatment and Transport
Eburn,360 in his review of the law relating to advance decisions refusing cardio-
pulmonary resuscitation (CPR), suggests that a patient must be 'mentally competent
and properly informed' at the time that the decision to refuse future CPR is made.361
Whilst it is not expressly stated, it is evident from the article, that Eburn's view in
this regard is influenced by his interpretation of the decision in Re T (Adult: Refusal
of Medical Treatment).362
Michalowski363 expressed the view that a decision to refuse medical treatment
will only be valid if the patient had been properly informed prior to the decision to
refuse treatment was made. The author lists four requirements of a valid refusal and
includes, as the second requirement that: 'the patient, when making the decision ....
was informed in broad terms of the nature and purpose of the procedure' that was
ultimately refused.364
Michalowski references Lord Donaldson MR in Re T (Adult: Refusal of
Medical Treatment) as authority for this proposition.365
Rothschild,366 in his examination of both the legislation and the common law
as it pertains to medical decision-making in Australia, refers to medical treatment
decisions generally (including both decisions to consent and refuse) and opines that
such decisions 'should be made by the patient who is of sound mind and has been
properly informed of all available options'.367
A growing number of eminent legal academics have rejected an interpretation
that would result in a conclusion that a patient must be provided with information
360 Eburn, above n 80, 131. 361 Eburn, above n 80. The author does not address contemporaneous decisions to refuse and his view
related to advance decisions. The author repeats this view at several points during the article and
furthermore, opines that the patient's doctor has a duty to provide appropriate information. 362 [1992] 4 All ER 649. The author's interpretation of the decision in Re T is that the Court of
Appeal concluded that Miss T's decision to refuse a blood transfusion was invalid for reasons that
Miss T had been subjected to 'undue influence' and that she had not been 'properly informed of the
risks', 133. 363 Sabine Michalowski, 'Advance Refusals of Life-Sustaining Medical Treatment: The Relativity of
an Absolute Right' (2005) 68 Modern Law Review 958. 364 Ibid 958. 365 Ibid 958. 366 Rothschild, above n 82. 367 Ibid 404.
Chapter 3: The Regulatory Framework and Refusal of Paramedic Treatment and Transport 113
regarding the consequences of their decision, before a decision to refuse treatment
could be accepted as valid.368
Willmott et al,369 express the view that the dictum of Lord Donaldson MR
referred to above, must be incorrect as it 'does not represent the common law' as it
has been recognised and applied in a number of common law countries, that an adult
patient can refuse medical treatment and can do so even if their decision is 'rational
or irrational, or for no reason at all'.370 In support of their view, the authors refer to a
long line of authority, which has consistently endorsed the right to refuse medical
treatment, and have not required that decisions in this regard be based on sufficient
information.371 On a more practical level, the authors do not accept that Lord
Donaldson intended that his statement be read as imposing such a requirement. In
support of this view, the authors refer to Lord Donaldson's final summary wherein
the only reference His Lordship has made to 'information' is in the context of
determining the scope of the patient's decision to refuse and whether the decision
may have been based on 'false assumptions', which would most certainly vitiate the
decision to refuse.372
The issue remains unresolved and superior court decisions in Australia have
contributed to the ongoing uncertainty.
In the case of Hunter and New England Area Health Service v A,373 McDougall
J rejected the proposition that a clearly expressed 'advance refusal' should be held to
be invalid for reason that the person was not adequately informed of the benefits and
risks of the treatment, should that treatment be required at some future time.374 His
Honour stated:
I do not accept the proposition that, in general, a competent adult's clearly
expressed advance refusal of specified medical procedures or treatment
should be held to be ineffective simply because, at the time of statement of
the refusal, the person was not given adequate information as to the benefits
368 Willmott et al, above n 81, 220-21; Willmott et al, above n 229, 369; Freckelton, above n 81, 438. 369 Willmott et al, above n 81. 370 Willmott et al, above n 81, 220-21. 371 Ibid. 372 Ibid. The authors referred to the summary of Lord Donaldson's judgement in Re T (Adult: Refusal
of Medical Treatment) [1992] 4 All ER 649, 664. 373 (2009) 74 NSWLR 88. 374 Hunter and New England Area Health Service v A (2009) 74 NSWLR 88, [28].
114 Chapter 3: The Regulatory Framework and Refusal of Paramedic Treatment and Transport
of the procedure or treatment (should the circumstances making its
administration desirable arise) and the dangers consequent upon refusal. As
I have said, a valid refusal may be based upon religious, social or moral
grounds, or indeed on no apparent rational grounds; and is entitled to respect
.... regardless.375
A different approach was adopted by Martin CJ in the decision of Brightwater
Care Group (Inc) v Rossiter.376 His Honour distinguished the case from that of
Hunter and New England Area Health Service v A on the basis that the earlier case
involved a decision that had been made in advance, and that the patient was, at the
time the matter had been brought before the court, no longer able to 'receive further
information or make any further decisions'.377 In the current case, the patient 'had the
capacity to receive and consider information he is given and to make informed
decisions after weighing up that information.'378 His Honour concluded:
[A]t common law, the answers to the questions posed by this case are clear
and straightforward. They are to the effect that Mr Rossiter has the right to
determine whether or not he will continue to receive the services and
treatment provided by Brightwater and, at common law, Brightwater would
be acting unlawfully by continuing to provide treatment contrary to Mr
Rossiter's wishes. In the particular circumstances of this case, in my view,
Brightwater has a duty to ensure that Mr Rossiter is offered full information
on the precise consequences of any decision to discontinue the provision of
nutrition and hydration prior to him making that decision.379
The legal principle upon which His Honour relied in support of his conclusion,
was the common law duty owed by a health professional to properly inform a patient
of the consequences of a proposed treatment, or of a decision to discontinue
treatment.
In the case of H Ltd v J & Anor,380 Kourakis J noted the 'different views' of
McDougall J and Martin CJ as they related to the question of information as a pre-
requisite for a valid decision to refuse medical treatment. His Honour agreed with
375 Ibid [28]. 376 (2009) 40 WAR 84. 377 Brightwater Care Group (Inc) v Rossiter (2009) 40 WAR 84 [28]. 378 Ibid [29]. 379 Brightwater Care Group (Inc) v Rossiter (2009) 40 WAR 84 [32]. 380 [2010] SASC 176.
Chapter 3: The Regulatory Framework and Refusal of Paramedic Treatment and Transport 115
the view held by McDougall J that: 'the nature of, and the motives for, the refusal of
consent is irrelevant ... it is not necessary for the refusal to be informed'.381
Willmott et al,382 expressed the view that Martin CJ 'fell into error' as he
converted the duty owed by a health professional (in this case, the health care
agency) to provide information, into a pre-requisite that must be satisfied before the
patient's decision to refuse medical treatment can be respected. The authors opine
that this view cannot be sustained, as it will result in a situation whereby medical
treatment could conceivably be forced on a person. 383
In his editorial, Freckelton384 notes the lack of consistency in opinions
expressed by McDougall J of the New South Wales Supreme Court and Kourakis J
of the South Australian Supreme Court, and that expressed by Martin CJ of the
Western Australian Supreme Court. Without providing justification for his
prediction, Freckelton anticipates that the view of McDougall J will most likely be
adopted if, and when, a superior court in this country has the opportunity to consider
this issue.385
Duty to Provide Information
It is well established that a medical practitioner has a duty to warn a patient of
any material risk of physical injury associated with proposed treatment, before the
treatment is provided.386 A failure to provide this information may give rise to an
action in negligence, if the patient were to suffer harm,387 but would not invalidate
the consent if the patient still received information 'in broad terms'.388
381 H Ltd v J & Anor [2010] SASC 176 [45]. 382 Lindy Willmott, Ben White and Shih-Ning Then, 'Withholding and Withdrawing Life-Sustaining
Medical Treatment' in Ben White, Lindy Willmott and Fiona McDonald (eds), Health Law in
Australia (Thomson Reuters, Sydney: 2010) 449. 383 Ibid 457. 384 Freckelton, above n 81. 385 Ibid, 438. The author does not comment or offer any opinion as to why he considers this will be
the most likely outcome. 386 Rogers v Whittaker (1992) 174 CLR 479, 489-490 ‘a risk is material if, in the circumstances of a
particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to
attach significance to it or if the medical practitioner is or should reasonable be aware that the
particular patient, if warned of the risk, would be likely to attach significants to it’. See also, Chappel
v Hart (1998) 195 CLR 232. The duty, as it applies to medical practitioners, has been reinforced in the
Civil Liability Act 2003 (Qld), s21. 387 However, for causation to be established in such a case, the patient would need to establish that he
or she not have agreed to the procedure, which ultimately resulted in the harm, if he or she had been
warned of the risk. Rosenberg v Percival (2001) 205 CLR 434, 462; Wallace v Kam (2012) 250 CLR
375, 383-4. See also, discussion in Bill Madden and Tina Cockburn, ‘What the plaintiff would have
116 Chapter 3: The Regulatory Framework and Refusal of Paramedic Treatment and Transport
Whilst the duty has largely been expressed as one owed by medical
practitioners, the advancement of allied health specialities, including paramedicine,
where health professionals are performing complex and invasive procedures, means
it is only logical that this duty is extended to all health professionals.389
The duty to disclose information is founded on the principle of patient
autonomy and the patient’s right to choose to accept or reject the treatment that has
been recommended, and accept the risk associated with that treatment.390 However,
the right to compensation is related to the physical injury that the patient has suffered
as a consequence of being denied the opportunity to make that choice, and not to the
denial of the opportunity itself.391
The duty does not reduce because the patient has rejected a diagnostic
procedure, or medical treatment that has been recommended. In these circumstances,
the health provider has a duty to provide the patient with information that is material
to that decision, including information regarding the risk associated with no
investigations, no treatment, or no medical supervision, as the case may be.392
done’ (2006) 14 Australian Health Law Bulletin 116; Loane Skene, ‘Duty to Warn and Causation:
Wallace v Kam’ on Opinions on High (5 July 2013) http://blogs.unimelb.edu.au/opinions-on-
high/skene-wallace/; Tracey Carver and Malcolm Smith, ‘Medical Negligence, Causation and
Liability for Non-disclosure of Risk: A Post-Wallace Framework and Critique’ (2014) UNSW Law
Journal 972 388 Rogers v Whittaker (1992) 174 CLR 479, 489-90. 389 See Hunter and New England Area Health Service v A [2009] NSWSC 761. McDougall J. after
providing a summary of the principles of the relevant case, stated that he had spoken in terms of
medical treatment, and hospitals and medical practitioners, whereas, the principles apply more broadly
to all those (including ambulance officers and paramedics) who administer medical treatment, and
extend further to other forms of treatment, such as dental treatment. The Civil Liability Act 2003
(Qld), s21 refers only to doctors. Section 15 of the Act provides that there is not proactive duty to
warn of an obvious risk, unless the defendant is a professional, other than a doctor, and the risk
involves a risk of death of the plaintiff, or risk of personal injury to the plaintiff, s15(2)(c). 390 See Wallace v Kam (2012) 250 CLR 375, 383-4. See discussion in: Skene, above n 386. 391 Ibid. 392 See Wang v Central Sydney Area Health Service and Ors [2000] NSWSC 515 where the hospital
was found to have a duty to provide the plaintiff, who had suffered a head injury following an assault
from an unknown assailant, with advice when informed of his decision to leave the Emergency
Department. The hospital also failed to make inquiry regarding the plaintiff’s domestic arrangements
to determine if his family/friends had the ability to care for the patient. See also: Brightwater Care
Group (Inc) v Rossiter [2009] WASC 229; Montgormery v Lanakshire Health Board [2015] UKSC
11; Truman v Thomas (1980) 27 Cal. 3d 286.
Chapter 3: The Regulatory Framework and Refusal of Paramedic Treatment and Transport 117
Information and Assessment of Decision-Making Capacity
The provision of information that is relevant to the patient’s condition is a
critical requirement of the decision-making process and as such, essential to the
assessment and ultimate determination of the patient’s decision-making capacity.
The first limb of the common law definition of capacity,393 requires that the
person is able to ‘comprehend and retain treatment information’394 which would
necessarily infer that treatment information must be provided to the person if they are
to meet this criterion. This requirement is also reflected in the first limb of the
statutory definition in Queensland395, which requires that the person is ‘capable of
understanding the nature and effect of decisions about the matter’.396
In some cases, it is possible that a patient may have knowledge of the condition
from which they are suffering, and aware of the risks associated with that condition,
however, it would be unsafe to assume this to be the case. Patients that request
paramedic attendance often do so in circumstances where urgent assistance is
required for a condition or injury that occurred without warning. These patients are
unlikely to have any knowledge about their condition or potential risks. The
provision of information that is relevant to the patient’s decision, is therefore
essential if the patient is to be afforded the opportunity to make an informed
decision, and if the paramedic is to be afforded the opportunity to assess if the patient
has the requisite decision-making to make that decision.
3.6 URGENT AND NECESSARY TREATMENT
The following section does not relate to contemporaneous decisions to refuse
paramedic treatment and transport in circumstances where a competent patient elects
to reject recommended and urgent paramedic treatment.397 The section has been
included to provide context for discussion involving cases in which a patient requires
urgent or necessary paramedic treatment, followed by timely transport to a hospital
393 Enunciated by Thorpe J in Re C (Adult: Refusal of medical treatment) [1994] 1 WLR 290. 394 Ibid 295. 395 Powers of Attorney Act 1998 (Qld), sch 3, Guardianship and Administration Act 2000 (Qld), sch 4. 396 Ibid. 397 As discussed earlier in this chapter, a person has a right to refuse treatment, irrespective of the level
of risk to which the person may be exposed, including the risk of premature and otherwise avoidable
death. See Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649, 652-3.
118 Chapter 3: The Regulatory Framework and Refusal of Paramedic Treatment and Transport
emergency department, and where the patient’s decision-making capacity is
impaired, or unable to be determined by the attending paramedic.
During the paramedic interviews, a number of participants cited experiences
whereby they attended upon a patient that had either sustained a significant injury, or
was suffering from an acute and potentially life threatening illness necessitating
immediate intervention. Notwithstanding the level of potential risk, in some cases
there was uncertainty with respect to the patient’s decision-making capacity and their
ability to understand the nature and consequences of a decision to refuse
recommended treatment at the scene, followed by immediate transport to a hospital
emergency department.
In circumstances where it is clear that the patient's decision-making capacity is
impaired, and where urgent and necessary treatment is required, the common law
provides an exception to the need for consent. This exception was clearly articulated
by McHugh J in the High Court decision Secretary, Department of Health and
Community Services (NT) v JWB and SMB (Marion’s Case)398 where he stated:
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.399
The exception was also recognised by the majority of the High Court in Rogers
v Whitaker400 where it was stated that: ‘all medical treatment must be preceded by
the patient’s choice to undergo it, except in cases of emergency or necessity’.401
Historically, the terms 'necessity' and 'emergency' have referred to a different
set of circumstances in which it was considered appropriate to act without consent.402
However, there does not appear to be any distinction drawn between the two terms in
Australia and both are used interchangeably to justify treatment without consent in
circumstances where it is necessary to act.403 In Hunter and New England Area
398 (1992) 175 CLR 218. 399 Rogers v Whitaker (1992) 175 CLR 479, 310. 400 Rogers v Whitaker (1992) 175 CLR 479. 401 Ibid 489 per Mason CJ, Brennan, Dawson, Toohey and McHugh JJ. 402 In Re F (Mental Patient: Sterilisation) [1990] 2 AC 1, [75]-[77]. 403 Hunter and New England Area Health Services v A (2009) 74 NSWLR 88.
Chapter 3: The Regulatory Framework and Refusal of Paramedic Treatment and Transport 119
Health Services v A,404 McDougall J provided a brief summary of the law involving
the provision of medical treatment in these circumstances, and in doing so,
confirmed that the term ‘emergency’ and ‘necessity’ are both used to describe the
same principle.
Where it is not practicable for a medical practitioner to obtain consent for
treatment, and where the patient’s life is in danger if appropriate treatment is
not given, then treatment may be administered without consent. This is
justified by what is sometimes referred to as the “emergency principle” or
“principle of necessity”.405
This common law exception referred to as either the 'principle of necessity' or
the 'emergency principle' and would apply in the following circumstances:
• where it is not practical to obtain consent (for example, the patient is
unconscious, confused or unable to communicate);
• where there is no authorised person available to provide consent for, or on
behalf of the patient;
• where the treatment is considered necessary to avoid risk to the life, health
or wellbeing of the patient; and
• where the treatment that is provided is reasonable having regard for all the
circumstances.406
The common law principle of necessity, or emergency in the context of urgent
medical treatment, has been incorporated into statutory regimes in each Australian
State and Territory. Whilst the provisions in each jurisdiction differ, the objective of
the relevant statutory provisions is the same, that is, to authorise, in circumstances
where the patient has impaired decision-making capacity and is exposed to a
significant clinical risk, the timely administration of urgent treatment that is
considered necessary to save the patient's life, prevent serious damage to their health,
or prevent significant pain.407
404 Hunter and New England Area Health Services v A (2009) 74 NSWLR 88 [31]. 405 Ibid. 406 Hunter and New England Area Health Services v A (2009) 74 NSWLR 88. See also, discussion in
Richards, above n 214,109. 407 Guardianship Act 1987 (NSW), s37; Medical Treatment Planning and Decisions Act 2016 (Vic),
s53; Guardianship & Administration Act 1995 (Tas); Consent to Medical Treatment & Palliative Care
120 Chapter 3: The Regulatory Framework and Refusal of Paramedic Treatment and Transport
In Queensland, the principle is embodied in the Guardianship and
Administration Act 2000408 and provides that health care of an adult may be carried
out without consent, if the adult’s health provider reasonably considers that the adult
has impaired capacity, and that one or the other of the following situations exist:
• the health care should be carried out urgently to meet an imminent risk to
the adult’s life or health;409 or
• the health care should be carried out urgently to prevent significant pain or
duress to the adult.410
Health care is defined as care, treatment or services to diagnose, maintain or
treat the adult’s physical or mental condition and is carried out by or under
supervision of a health provider.411 Health care does not include first aid, non-
intrusive examination made for diagnostic purposes, or the administration of a drug
for which a prescription is not needed, and the drug is normally self-administered
and the administration is for a recommended purpose and at a recommended
dosage.412
A health care provider is any person who provides health care in the practice of
a profession or the ordinary course of business.413 The definitions of health care and
health care provider in Queensland’s Guardianship and Administration Act would
include the treatment and services provided by a paramedic in the pre-hospital
setting.
The common law principle of necessity, and the statutory provisions set out in
the Guardianship and Administration Act414 would authorise the provision of urgent
paramedic treatment and ambulance transport to a hospital emergency department, in
Act 1990 (SA), S13(1); Emergency Medical Operations Act (NT), s3(1); Guardianship &
Administration Act 2000 (Qld), s63; Guardianship & Administration Act 1990 (WA), s11;
Guardianship and Management of Property Act 1991 (ACT), s32N. Not all provisions apply to
paramedics. 408 Guardianship & Administration Act 2000 (Qld), s63. 409 Ibid, s63(3). 410 Guardianship & Administration Act 2000 (Qld), s63(4). 411 Ibid, sch 2 s5(1). Health care includes the withholding or withdrawing of a life sustaining measure
if the commencement or continuation of it would be inconsistent with good medical practice however,
for the purposes of this section, withholding or withdrawing of a life sustaining measure is excluded
and is dealt with in s63A. 412 Guardianship & Administration Act 2000 (Qld), sch2 s5(3). 413 Ibid, sch4. 414 Guardianship and Administration Act 2000 (Qld), s64.
Chapter 3: The Regulatory Framework and Refusal of Paramedic Treatment and Transport 121
circumstances where a patient lacks the capacity to make decisions regarding the
treatment or transport that is required. However, what is in doubt, is whether the
provisions would apply in circumstances where the paramedic is unable to determine
with certainty, if the patient for whom urgent and necessary treatment is required, has
the requisite impaired decision-making capacity to accept or reject that treatment, or
transportation to a health facility where both their clinical condition, and their
decision-making capacity, can be determined with certainty.
3.7 SUMMARY
This chapter has presented a comprehensive description of the law that
regulates contemporaneous decisions to refuse recommended health care, and has
done so in the context of paramedic practice and decisions to refuse paramedic
treatment and ambulance transport.
The ethical principles that underpin patient decision-making were examined,
and it was noted that a conflict between the principles of autonomy and sanctity of
life would frequently arise in paramedic practice when responding to a patient that
refuses necessary and potentially life-saving treatment.
The law is clear, an individual has a right to decide to accept or reject
recommended treatment irrespective of the circumstances or the clinical risk to
which the individual may be exposed. Paramedics have a duty to respect these
decisions, subject only to a determination that the decision is valid. The two
elements of a valid contemporaneous decision to refuse, decision-making capacity
and voluntariness, were explored in detail.
The provision of information regarding the patient’s condition and the
consequences or risks associated with the decision to refuse treatment and transport
was examined. Whilst there is no argument that a patient should be provided with
relevant information that is material to their decision-making, it is noted that there is
a division of opinion, both judicially and in academic commentary regarding how the
law should view this requirement; should it be an element of a valid decision, or will
it remain a duty to inform the patient of the risks associated with their condition and
decision to refuse recommended treatment? Whilst this issue remains unsettled, it is
argued in this chapter that the provision of information is a critical requirement of the
decision-making process and essential to the assessment, by the paramedic, of the
122 Chapter 3: The Regulatory Framework and Refusal of Paramedic Treatment and Transport
patient’s decision-making capacity. This is particularly relevant in paramedic
practice where the great majority of patients have no knowledge of an illness or
injury until moments before the ambulance service was contacted and a request for
paramedic assistance made.
Chapter 4: Epidemiological and Demographic Characteristics of Patients Who Refuse Paramedic
Treatment and Transport
123
Chapter 4: Epidemiological and
Demographic Characteristics of
Patients Who Refuse Paramedic
Treatment and Transport
4.1 INTRODUCTION
The Productivity Commission in Australia reports annually on all Government
services including health and ambulance services.415 During the 2017-2018 financial
year, the Productivity Commission reported that the QAS responded to over one
million incidents, of which 73% were categorised as either an emergency416 or urgent
in nature.417 Notwithstanding the critical nature of the majority of cases to which
QAS paramedics responded, a total of 118,344 or 9.58% of the cases attended during
that twelve-month period, did not result in a patient being transported to a hospital or
health care facility. There are many reasons why an urgent response may result in no
ambulance transportation, and possibly no paramedic treatment, however this
information is not recorded in the Productivity Commission’s report, or the literature.
This thesis is concerned with cases that result in a non-transport for reason that
the patient refuses to provide consent for paramedic treatment and/or transport, and
how paramedics respond to those decisions. Factors such as the frequency with
which paramedics encounter a patient refusal; the physical setting and time of day in
which these decisions are made; the age of the patient; and the clinical circumstances
that give rise to a request for paramedic attendance, are relevant when seeking to
understand the context in which paramedic decision-making takes place. In order to
provide this contextual information, a retrospective analysis of de-identified QAS
patient data was conducted, and all refusal cases during the 2011 calendar year were
examined.
415 Productivity Commission Report on Government services 2019
https://www.pc.gov.au/research/ongoing/report-on-government-services at 8 April 2019. 416 Ibid, chapter 11, 11.4. 417 Ibid
124 Chapter 4: Epidemiological and Demographic Characteristics of Patients Who Refuse Paramedic
Treatment and Transport
This chapter will begin with a review of the literature that examines the
frequency and circumstances in which decisions to refuse paramedic treatment
and/or transport in countries other than Australia are made. Thereafter, the findings
of this contextual analysis will be presented. Whilst this analysis was conducted
early in my doctoral candidature, there is no reason to expect that the quantitative
nature of the findings has altered in subsequent years.
4.2 LITERATURE REVIEW
The non-transport of patients following the attendance of paramedics, attracted
interest during the 1990’s, and was principally motivated by a rise in litigious claims
against ambulance service providers in the United States involving cases in which
patients were not transported by paramedics to a hospital or health facility. The
majority of research relating to this topic took place in North America,418 with two
studies conducted in the United Kingdom,419and a single study in Taiwan.420
The research that has been conducted has been diverse in terms of the
individual research objectives and the design and methodology of each study. There
have been significant variations in areas such as the study period, which ranged from
between three weeks421 and two years,422 and the size of the sample, which varied
from as few as 157 refusal cases evaluated,423 to as many as 14,109 cases.424
Unlike Australia, where there is a single publicly425 funded ambulance service
provider in each State and Territory,426 ambulance services in the United States are
418 Cain et al, above n 38. 419 Marks et al, above n 39; Shaw et al, above n 39. 420 Chen et al, above n 40. 421 The shortest study period was three weeks. See Andrew Sucov, Vincent Verdile, Doug Garettson
& Paul Paris, 'The Outcome of Patients Refusing Perhospital Transportation' (1992) 7 Prehospital and
Disaster Medicine 365. 422 Stacey Knight, Lenora Olson, Lawrence Cook, Clay Mann, Howard Corneli & Michael Dean,
'Against All Advice" And analysis of Out-Of-Hospital Refusals of Care' (2003) 42 (5) Annals of
Emergency Medicine 689. 423 Brian Zachariah, David Bryan, Paul Pepe & Monica Griffin, 'Follow-up and Outcome of Patients
Who Decline or Are Denied Transport by EMS' (1992) 7 (4) Prehospital and Disaster Medicine 359 424 Knight et al, above n 42.. 425 In Western Australia and the Northern Territory, ambulance services are provided St John
Ambulance, for which they receive partial Government funding and payment from users on a fee for
service basis. The remaining six Australian ambulance services are divisions of the relevant
jurisdiction’s health or emergency services departments and are publicly funded. 426 The Queensland Ambulance Service; Ambulance Service of New South Wales; Ambulance
Victoria; Ambulance Tasmania; South Australian Ambulance Service; Australian Capital Territory
Chapter 4: Epidemiological and Demographic Characteristics of Patients Who Refuse Paramedic
Treatment and Transport
125
provided within an emergency medical system that includes numerous individual
ambulance service providers in any given area, including hospital based providers,
privately funded providers and services delivered by voluntary organisations. The
setting or geographical area serviced by the relevant ambulance service provider, and
the type of provider is another significant variation in the studies that have been
conducted. Some studies involved state or province wide ambulance service
providers and examined large quantities of data relating to refusal cases collated over
extended periods of time.427 Other studies involved a single hospital-based
provider,428 or a combination of providers servicing a limited and defined
geographical area.429
Methods of data collection also varied and whilst most of the studies involved
a retrospective review of ambulance service case records that were compiled by the
paramedics responsible for attending each case, others involved telephone follow up
with the patient or the patient's family in order to elicit information relevant to the
patient's clinical outcome following a decision to refuse.
None of the studies reviewed involved individual paramedic interviews as a
method of data collection.
Frequency of Patient Refusals
Irrespective of variations in the size, location and methodology of each study,
the findings with respect to the incidence or frequency of cases involving a patient
refusal of ambulance transport in North America were, with the exception of one
Ambulance Service; and St John Ambulance in both Western Australia and the Northern Territory
partly funded under contract. 427 For example, the study conducted by: Knight et al, above n 423. This study was conducted in Utah
and examined data from a state-wide database, which included records from all ambulance responses
during the period between 1996 and 1998. During this period, paramedics in Utah attended 277,244
cases of which 14,109 (5.1%) refused ambulance transport. 428 For example, the study conducted by: Cone et al, above n 36. The study involved cases attended by
the Fitzgerald Mercy Ambulance Service, a hospital based ambulance service with an annual caseload
of 4,200 responses. The study was conducted over a period of six months in 1992 during which 85
cases of refusal were recorded. 429 For example, the study conducted by John Hipskin, J Gren, and D Barr, 'Patients who Refuse
Transportation by Ambulance: A Case Series (1997) 12 (4) Prehospital and Disaster Medicine 278.
126 Chapter 4: Epidemiological and Demographic Characteristics of Patients Who Refuse Paramedic
Treatment and Transport
study,430consistently recorded as between 5% and 10% of all emergency ambulance
responses during each of the respective study periods.431
The study conducted by Hipskind et al,432 involved a review of all emergency
ambulance responses in the northeast of Illinois during two separate one-month
periods in 1993 and 1994. The authors identified that as many as 30% of cases that
were initially categorised as urgent (683 of 2,270 patients), were not transported to
hospital for reason that the patient refused to provide consent.433 The non-
transported patients were commonly asymptomatic and assessed to be in need of
minimal assistance; were aged between 11 and 40 years; and a little under half of the
group had been involved in a road traffic crash.434 This result would appear to be an
aberration when compared with the findings of other studies.
In both Australia and New Zealand, ambulance service providers collect data
regarding the number of patients that are attended by a paramedic following which
no ambulance transport is provided. The data relating to the Australian ambulance
service providers is published on an annual basis by the Productivity Commission435
however, there is no differentiation between those cases in which the paramedic
determines that ambulance transport is not required, and those where the patient
refuses to provide consent for transportation.436
430 Ibid. 431 S Moss, T Chan and J Buchanan, 'Outcome study of prehospital patients signed out against
medical advice by field paramedics' (1998) 31 Annals of Emergency Medicine 247; Sucov et al, above
n 420; R Pringle, D Carden, F Xiao and D Graham, 'Outcomes of Patients Not Transported After
Calling 911' (2004) 28 (4) The Journal of Emergency Medicine 449; Zachariah et al, above n 35;
Knight et al, above n 423; Cain et al, above n 38. 432 Hipskind et al, above n 428. 433 Ibid. The study was conducted at the Sherman Hospital in Elgrin Illinois, which provides medical
supervision for 17 ambulance service providers that operate in the north-eastern Illinois area. The
providers included private ambulance services, hospital based services and voluntary services. A
prospective review of all case records of patients who refused transport was conducted to identify
frequency of refusal and other relevant details such as: age; gender; chief complaint; past medical
history; vital signs; and mental status. Details regarding other persons in attendance such as family
members, police or health care providers were also examined. 434 Hipskind et al, above n 428, 280. 435 Productivity Commission, Report on Government Services. The 2019 report can be located at
<https://www.pc.gov.au/research/ongoing/report-on-government-services>. Prior to the 2013-14
financial year, ambulance data and statistics were listed in the Council of Ambulance Authorities Inc.
Annual Report which can be accessed at <http://www.caa.net.au/downloads/caa_annual_report.pdf> 436 Council of Ambulance Authorities Inc., Annual Report 2010-11
<http://www.caa.net.au/downloads/caa_annual_report.pdf> During the 2010-11 financial year,
Australian ambulance services attended 2.93 million patients of which 11.4% or 334,020 were not
transported to hospital.
Chapter 4: Epidemiological and Demographic Characteristics of Patients Who Refuse Paramedic
Treatment and Transport
127
Whilst individual providers may collect this information, there is no literature
or publicly accessible data which identifies, on an on-going basis, the frequency or
the circumstances in which Australian paramedics are required to respond to a
situation in which the patient whom they attend, expressly refuses treatment and/or
transport against the advice of the paramedic.437
Toloo et al438 in their monograph addressing the characteristics of users of
emergency health services, examined data supplied by the Queensland Ambulance
Service for each financial year between 2001-02 and 2009-10. The authors
conducted a detailed analysis of paramedic workloads during the 2002-03 and the
2009-10 financial years and reported that during the 2009-10 financial year, 15,511
cases or 2.4% of the total cases attended, had been coded as having refused transport
against paramedic advice.439
It is evident from a review of this literature that paramedics in a number of
countries are frequently required to respond to a situation in which a patient
expressly refuses treatment and/or transport against the advice of the attending
paramedic.440 What is not clear is how frequently this occurs in Australia, and the
circumstances in which it occurs.
Demographic and Clinical Circumstances
A study by Knight et al,441 perhaps the largest study of this kind,
retrospectively examined State-wide Emergency Medical Service data in the State of
Utah (which included data produced by ambulance service providers and hospital
emergency departments) during a two-year period. The authors found that 5.1%
(14,109) of total number of ambulance responses during that period (277,244)
resulted in a refusal of services. The mean age of the patients who refused care was
35 years, with slightly more males than female patients (51%) refusing services. The
authors examined the nature of the case or the patient's condition as recorded by the
attending paramedic and identified that the most common complaint in those that
437 The Queensland Ambulance Service collects information regarding cases in which a patient refuses
ambulance treatment and/or transport to hospital against the advice of the attending paramedic. For
the purposes of this study, the author was granted access to summary data relating to all refusal cases
during the 2011calendar year. 438 Toloo et al, above n 46. 439 Toloo et al, above n 46 [Table 47]. 440 Balcar, above n 42. 441 Knight et al, above n 423.
128 Chapter 4: Epidemiological and Demographic Characteristics of Patients Who Refuse Paramedic
Treatment and Transport
refused ambulance services was a traumatic injury related to a road traffic crash
(10.8%).442
Similar demographic characteristics were reported in other studies. Hipskind
et al443 conducted a prospective examination of ambulance records created by 17
private, public and volunteer ambulance providers servicing an area of northeast
Illinois. The records examined related to a two-month period during which 2270
responses were recorded. A higher incidence of refusal was noted by these authors
(30% or 7683) however the ratio of male as to female was similar, with 350 males
and 332 females refusing services and 57% of the patients were recorded to be in the
11 to 40-year age group. The most common complaint of those who refused services
was trauma following a road traffic crash.
Moss et al444 examined, among other demographic characteristics, the time of
day when a refusal of paramedic treatment and/or ambulance transport was most
likely to take place and found that the majority of refusals (46%) occurred during the
evening shift with 34% occurring during the day shift and 20% overnight. The most
recent study conducted by Waldron et al445 involving a single hospital-based service
provider in New York, produced similar findings with 38% of refusals taking place
during the morning shift, 39% during the evening shift, and 23% overnight.446
A number of studies have examined the case types, or clinical circumstances in
which a decision to refuse ambulance services takes place. Whilst some have
identified that a significant proportion of patients may be suffering from relatively
minor conditions,447 others have identified that patients who refuse ambulance
services can be suffering from a clinical condition in which there is a high risk for an
adverse clinical outcome. Conditions reported in the literature include: head and
other traumatic injuries;448 loss of consciousness including seizure;449
442 Knight et al, above n 423, 694. The authors were not surprised by the finding in relation to the
incidence of refusal association with a road traffic crash and opined that most of the calls to attend
road traffic crashes are made by bystanders or law enforcement officers that are called to attend. 443 Hipskind et al, above n 428. 444 Moss et al, above n 430. 445 Waldron et al, above n 54. 446 The shift times provided were: day shift 7:00am to 3:00pm; evening shift 3:00pm to 11:00pm; and
night shift 11pm to 7:00am. 447 Hipskin et al, above n 428. 448 Manish Shah, Jeffrey Brazarian, Anne Marie Mattingly, Eric Davis & Sandra Scheinder, 'Patients
with head injuries refusing emergency medical services transport' (2004) 18 (8) Brain Injury 765.
Chapter 4: Epidemiological and Demographic Characteristics of Patients Who Refuse Paramedic
Treatment and Transport
129
hypoglycaemia;450cerebral vascular conditions; cardiopulmonary conditions;451 and
most commonly, following involvement in a road traffic crash.452
Some authors have also examined the presence of other factors which may be
clinically relevant, and which may also have the potential to erode, albeit on a
temporary basis, the patient's decision-making capacity. Stark et al453 identified
alcohol, hypoglycaemia and the absence of a family member or support person at the
scene, as common factors that were present in cases involving a refusal of ambulance
treatment and/or transport. These finding were consistent with those of Waldron et
al454 and Stuhlmiller et al,455 both of whom identified, in addition to the factors
referred to above, the presence of a head injury or some form of head trauma as a
common occurrence.456
The clinical outcome of those patients that initially refuse ambulance treatment
has attracted a great deal of interest during the past decade, which is not surprising,
given that the principal focus of medicine and health care generally, is to achieve
where possible, a positive clinical outcome. Whilst it is not directly relevant to this
study, it is interesting to note that a number of studies have demonstrated that
patients who initially refuse ambulance treatment and/or transport are in fact
suffering from a potentially serious medical condition and will ultimately need, and
most likely seek, medical treatment at a later time.
Cone et al457 found that as many as 13% of patients who refuse ambulance
transport were subsequently admitted to hospital (seven of fifty-four) with an
449 Gary Vilke, Winfred Sardar, Roger Fisher, James Dunford and Theodore Chan, 'Follow-up of
Elderly Patients Who Refuse Transport After Accessing 9-1-1' (2002) 6(4) Prehospital Emergency
Care 391. 450 Cain et al, above n 38; Stuhlmiller et al, above n 64; Michael Cudnik, Scott Sundheim, Melinda
Threlkeld & Thomas Collins, (2005) 'Adequacy of Online Medical Command communication and
Emergency Medical Services Documentation of Informed Refusals' 12 Academic Emergency
Medicine 970. 451 Sucov et al, above n 220; Vincent Verdile, Doug Garettson & Paul Paris, 'The Oucome of Patients
Refusing Perhospital Transportation' (1992) 7 Prehospital and Disaster Medicine 365. 452 Knight et al, above n 423. 453 G Stark, J Hedges and K Nelly, 'Patients who initially refuse prehospital evaluation and/or therapy'
(1990) 8 American Journal of Emergency Medicine 365. 454 Waldron et al, above n 54. 455 Stuhlmiller et al, above n 64. 456 Stuhlmiller et al, above n 64. See also, Waldron et al, above n 54, 285. 457 Cone et al, above n 36.
130 Chapter 4: Epidemiological and Demographic Characteristics of Patients Who Refuse Paramedic
Treatment and Transport
additional 13% seeking medical assistance from outside the hospital setting.458 Other
studies have demonstrated between 6% and 16% of patients who initially refuse
transport will be hospitalised459 and in the study conducted by Zachariah et al,460 two
patients who were followed up were admitted to a hospital intensive care unit and
another two reportedly died after refusing ambulance transport.
There have been no studies conducted in Australia, which have examined the
epidemiological and demographic characteristics of patients who refuse paramedic
treatment and/or ambulance transport.
4.3 DATA ACCESS
As noted in Chapter 3, the QAS uses a sophisticated and integrated clinical
data collection and information system, which begins at the point of service
provision. The attending paramedic creates a record of the attendance capturing all
relevant demographic and clinical data relating to the patient and the incident. The
record is electronic and is created with the aid of a Panasonic Toughbook computer
using a software program known as the Victorian Ambulance Clinical Information
System (VACIS).461 The electronic record, the Ambulance Report Form (eARF), is
then uploaded into a database before being integrated into a data warehouse where it
is stored.
A major feature of VACIS is a comprehensive set of clinical reference data and
codes from which paramedics can select as they complete the electronic record. The
use of this reference data and codes facilitates a standard approach to the
documentation of the paramedic assessment and treatment and provides a means by
which specific case types can be identified and subsequently evaluated for the
purposes of clinical quality assurance, research and reporting.462
458 Ibid. The study involved a retrospective review of refusal data from a single hospital-based
ambulance service in Philadelphia. During the six-month study period, 85 refusals were recorded.
Telephone follow with the patient or family member was attempted in all cases. Follow up was
successful in 54 cases. 459 Sucov et al, above n 420; Zachariah et al, above n 35. 460 Zachariah et al, above n 35. 461 VACIS was developed in 2005 by the Metropolitan Ambulance Service, Victoria (now Ambulance
Victoria) in collaboration with the Queensland Ambulance Service. The system was introduced into
those two services in that year and since that time, has rolled out into other Australian ambulance
services. 462 In late 2017, after this analysis was conducted, the QAS commenced the rollout of a new electronic
patient record system called digital eARF or DARF. The program was designed in-house and
Chapter 4: Epidemiological and Demographic Characteristics of Patients Who Refuse Paramedic
Treatment and Transport
131
All cases during the 2011 calendar year in which the attending paramedic
recorded that the patient had 'refused ambulance transport against paramedic advice'
(refusal cases) were selected and the data relating to each case was copied to a MS-
Office Excel spreadsheet. Identifying details of the patient and the attending
paramedic were removed prior to the transfer of the data from the database to the
MS-Office Excel spreadsheet.463 The data was then cleansed and cases in which there
were multiple records relating to a single and identifiable patient were removed.464
Other records, in which it was clearly evident that the paramedic had erroneously
selected the 'refused ambulance transport against paramedic advice' code, were also
removed from the dataset.
A total of 16,463 cases, or 2.67% of the total ambulance responses during that
twelve-month period, were subsequently identified as involving a patient who
refused to provide consent to be transported by ambulance to a hospital or health
facility, against the advice of the attending paramedic.
4.4 DATA ANALYSIS
Analysis of the data was performed using the Statistical Package for the Social
Sciences (SPSS) version 19 and MS-Office Excel programs. Data were analysed to
determine the following characteristics:
• mean age of patients who refused against advice;
• percentage of males and females in each age group;
• geographical location of the patient according to three broad categories:
private residence, public place and health facility;
• time of day the refusal takes place;
• clinical nature of the case determined by the attending paramedic upon
arrival at the scene;
subsequently developed by external contractors. Paramedics completing the digital eARF can do so
using the iPad that has been allocated to them for their exclusive use. Codes remain a feature of the
digital eARF. 463 In accordance with the requirements specified by the QAS, this step was undertaken by a QAS
employee working in the QAS Information Support, Research and Evaluation Unit. 464 Multiple records would be common in circumstances where more than one ambulance unit
attended the same patient at the same time. Post cleansing, only one record per patient was retained in
the spreadsheet.
132 Chapter 4: Epidemiological and Demographic Characteristics of Patients Who Refuse Paramedic
Treatment and Transport
• final assessment; and
• distribution of cases across the then seven QAS regions of the State.
Of the 16,463 patients who refused ambulance transport during 2011, 1,599
(9.7%) were not allocated a ‘case nature’ code, the purpose of which is to provide a
clinical description of the case as determined by the paramedic upon arrival at the
scene. Codes such as: Case Nature Unknown; Other – specify; or Unknown
Problem, were selected by the attending paramedic in each of these 1,599 cases. A
manual review was subsequently conduced of all 1,599 cases, which included an
examination of the free text recordings that were made by the attending paramedic
when completing the eARF. The differences between this group of 1,599 cases, and
the remainder of the cohort are discussed below in section 4.5.5.
4.5 FINDINGS
Age and Gender
The overall mean age of patients who refused paramedic treatment and/or
transport was 44.44 years old (n = 16,114). The mean age for females was 44.67
(±24.27), and for males, 42.26 (±23.36). 465
465 According to the 2011-12 financial year data, the mean age of female patients requiring ambulance
services was 46.2 years and males, 48.8 years, which is slightly older than patients in the refusal
group.
Chapter 4: Epidemiological and Demographic Characteristics of Patients Who Refuse Paramedic
Treatment and Transport
133
There was a significant difference between the number of males and females in each
age group (χ2=84.95, df = 9, p<0.001). These differences are mostly attributed to a
greater number of females in all groups over 71 years of age, and a greater number of
males in the 0-10-year age group. The percentage of refusal cases for both males and
females in each age group is presented in Figure 2.
Figure 2: The percentage of cases by gender (male = 8,234; female = 7,871) and age group (49
missing cases)
Refusal of Transport by QAS Region
The greatest number of refusal cases during the study period occurred in the
Brisbane (n = 5,805, 35.3%) and South East (n = 5,033, 30.6%) regions of the QAS,
and the least number in the South West region (n = 578, 3.5 %). This is a direct
reflection of the profile of cases occurring in each region across the State at the time,
with Brisbane and South East regions comprising around two-thirds of total QAS
state wide activity each year.466 The percentage of refusal cases for each of the then
seven QAS regions is displayed in Figure 3.
466 The overall demand proportions per region were similar, although a slightly higher proportion of
refusals occur in the Brisbane and South East regions. Combined, these two regions comprise 66% of
refusals but make up 55% of the overall demand for the 2011-12 financial year.
0
5
10
15
20
25
%
Age Group
Female
Male
134 Chapter 4: Epidemiological and Demographic Characteristics of Patients Who Refuse Paramedic
Treatment and Transport
Figure 3: The breakdown (%) of cases by QAS region (n = 16,463)
Time of Day
The precise time of day at which the refusal took place was recorded on the
eARF by the attending paramedic, and then subsequently coded as one of two
possible codes. The first code is ‘day’ which related to a case occurring between the
hours of 8:00am and 8:00pm. The second code is ‘night’ which was code cases that
occurred between the hours of 8:00pm and 8:00am the following day. In 13,773 of
the 16,463 refusal cases, the code relating to time of day was selected. Of those
cases were the code was selected, a greater number (63.2%; n = 8,703) occurred
during the day.467
Patient Location
The location of patient at the time they refused paramedic treatment and/or
ambulance transport was examined according to one of three broad codes: private
residence, public place or health care facility. For the purposes of coding QAS
records, a health care facility includes a hospital, a private medical or allied health
practice, or a residential care facility.
The majority of refusal cases occurred in a private residence (65.0%), with
57.4% of these refusals taking place during the day or the hours between 8:00am and
8:00pm.
467 This reflects the overall demand patterns during the period between 8am and 8pm, which recorded
64% of cases and 36% during the period 8pm and 8am.
Northern
Central
South Western
North Coast
Brisbane
South Eastern
Far Northern
Chapter 4: Epidemiological and Demographic Characteristics of Patients Who Refuse Paramedic
Treatment and Transport
135
A higher proportion of refusals that occurred during the daytime occurred in
public places. It would be reasonable to assume that this would reflect normal social
mobility during the daytime period when people are in the workplace or community.
Table 6 below displays the number of cases according to both the time of the day and
the location at which the refusal took place.
Table 6: The number of cases according to location at the time the refusal was made, and the time of
day these cases occurred (n = 13,774)
Private residence Public place Health care Total
Day (8am -8pm) 5,147 3,296 260 8,703
Night (8pm – 8am) 3,814 1,143 114 5,071
Total 8,961 4,439 374 13,774
During the analysis, a significant difference between age groups and case
location was noted (χ2= 930.74, df = 18, p<0.001). This difference is due to a greater
number of cases in the 11 to 30-year-old age group occurring in a public place, and
those over 80 years of age occurring in health care facilities. Once again, it would be
reasonable to assume that more people over the age of 80 years would be likely to
attend a health facility than those under the age of 30 years, who would be more
likely to be active in public places. Figure 4 displays the percentage of cases by both
age group and location.
Figure 4: The percentage of cases by location and age group (n = 16,114)
0%
10%
20%
30%
40%
50%
60%
70%
80%
90%
100%
Age group
Health Care
Public Place
Private residence
136 Chapter 4: Epidemiological and Demographic Characteristics of Patients Who Refuse Paramedic
Treatment and Transport
Case Type
Almost 24% of refusal cases (n = 3,946) were considered by the attending
paramedic to be ‘General Medical’ in nature. A further 9.6% of cases involved a
‘Fall’ of some kind, and 8.6% involved in a ‘Vehicle Collision’.
A broader grouping of the case types found that more than the 24% of cases
identified as ‘General Medical’, involved cases that were medical in nature. While
one in four cases were coded as ‘General Medical’ a further one third involve
conditions such as cardiovascular illness, gastrointestinal complaint or a respiratory
condition. A revised assessment therefore concluded that approximately 60% of the
refusal cases involved a patient who was suffering from a condition that was medical
in nature, while another 25% of cases involved trauma of some kind, such as a fall, a
vehicle collision, a physical assault or a motorcycle collision. Fewer than 10% of the
cases were due to social, emotional or psychiatric problems. The case nature of all
16,463 refusal cases is displayed in Figure 5 below.
This analysis suggests that any perception of this cohort of patients as a
behaviourally challenging group with high levels of drug and alcohol intoxication is
not so. Rather the overwhelming majority are suffering from general medical
conditions or traumatic events.
Chapter 4: Epidemiological and Demographic Characteristics of Patients Who Refuse Paramedic
Treatment and Transport
137
Case Nature: as coded by paramedics
Figure 5: Case nature (n = 16,463)
As mentioned above, the attending paramedic did not record a code to indicate
the specific nature of the case in 9.7% of the 16,463 refusal cases (n = 1,599). In
each of these cases, the paramedic coded the case as either: ‘Case Nature Unknown’;
‘Other – specify’; or ‘Unknown Problem’. A manual audit of all 1,599 cases resulted
in the case being re-classified into an existing code in 74% of the cases.468 The
outcome of the manual recoding of the 1,599 cases, and the subsequent codes that
were allocated, is displayed in Table 7.
468 Over 84% of cases that had been originally coded by the attending paramedic as ‘Other –specify’
and ‘Unknown Problem’, and 52.6% of the cases originally coded as ‘Case Nature Unknown’ were
able to be re-classified or allocated into an existing case nature code. This would suggest that there
may have been a high documentation error in this group of cases.
0 1000 2000 3000 4000 5000
General medical
Fall
Vehicle collision
Assault
Respiratory
Neurological
Cardio
Muscoskeletal
Gastrointestinal
Case nature unknown
Other - specify
Endocrine
Unknown problem
Overdose
Emotional problem
Nil problem
Social problem
Motorcycle collision
Psychiatric problem
Other categories
No. of cases
138 Chapter 4: Epidemiological and Demographic Characteristics of Patients Who Refuse Paramedic
Treatment and Transport
Table 7: Comparison of case nature from paramedic original entry to manual recoding from free text
comments (n = 1,599)
Original (Paramedic) recorded case nature
Case nature after audit Case nature
unknown
Other -specify Unknown
problem
Total
Alcohol 22 26 19 67
Allergy 0 4 3 7
Assault 28 12 8 48
Bite/Sting 2 1 2 5
Burn 1 11 1 13
Case nature unknown 275 0 0 275
Chemical exposure 4 2 1 7
Cardiac 17 44 49 110
Dental 1 3 3 7
Diabetic 0 10 9 19
Electrical contact 0 2 1 3
Ear/nose/throat 0 3 0 3
Environmental exposure 0 0 1 1
Faint 0 28 72 100
Fall 31 32 15 78
Fire/smoke 1 0 1 2
Foreign body 1 5 1 7
Gastro problem 9 22 34 65
General medical 13 40 23 76
Surgical medical 1 3 2 6
Minor bleed 0 6 1 7
Minor wound 1 29 2 32
Motorcycle collision 7 1 1 9
Motor vehicle collision 81 11 4 96
Musculoskeletal 13 20 13 46
Neurological 20 37 69 126
OBGYN 1 4 1 6
Oncology problem 1 0 1 2
Other -specify 0 83 0 83
Overdose 11 12 12 35
Pain 1 0 0 1
Pedestrian collision 0 1 0 1
Psychiatric problem 8 19 19 46
Respiratory problem 11 20 37 68
Social problem 12 7 5 24
Sport injury 2 4 1 7
Stabbing 1 0 0 1
Struck by object 4 15 2 21
Unknown problem 0 0 48 48
Total 580 517 461 1,558
The main re-classified codes include: ‘Neurological’ (n=126); ‘Cardiac’
(n=110); ‘Faint’ (n=100) and ‘Motor vehicle collision’ (n=96). It is concerning that
potentially serious cases, particularly neurological and cardiac conditions, were not
correctly coded in the first instance. However, it is possible that the attending
Chapter 4: Epidemiological and Demographic Characteristics of Patients Who Refuse Paramedic
Treatment and Transport
139
paramedic made a conscious decision not to select a specific Case Nature code, and
elected to provide more fulsome details of the case in the free text Case Description
section of the eARF.
There were no statistically significant differences between the manually coded
group and the rest of the patient sample with regards to the age or gender of the
patients. There was however, a significant difference between the assessment and
treatment status of the group that was manually coded by the researcher, and the
group that was coded by the paramedic who attended the patient (χ2= 3211.41, df =
6, p<0.001). A far greater proportion of patients in the manually coded group had
refused assessment (34.9%), compared to only 2.5% of the patients in the paramedic-
coded group. This refusal of assessment may have resulted in less information being
available to the paramedic to form a judgement as to the nature of the case.
The manually coded group were also significantly more likely to be located in
a public place (χ2= 7.07, df = 2, p<0.001) rather than a private residence or health
facility. It is possible the requests for paramedic assistance in these cases, were made
by third party callers (for example a member of the public, or shopping centre
security staff) and not the individual patient for whom the service was initiated. If
so, that may have contributed to the decision to refuse the paramedic treatment
and/or transport and to do so when the paramedics arrived. The location of cases that
were manually coded by the researcher, compared with those that were coded by the
paramedic, is displayed in Figure 6.
Figure 6: The location of the scene (n = 13,769)
140 Chapter 4: Epidemiological and Demographic Characteristics of Patients Who Refuse Paramedic
Treatment and Transport
Final Assessment
Upon completion of each case, the paramedic uses the eARF to record the
outcome of the case or their final assessment. However, in 55% of the 16,463 refusal
cases, the attending paramedic did not allocate a ‘Final Assessment’ code. This
represents a high rate of incomplete documentation in cases where a patient is not
transported to hospital for reason that they refused to provide consent. Interestingly,
the vast majority of these patients were provided with some form of paramedic
treatment and for this reason, it is difficult to identify why the ‘Final Assessment’
was not coded in such a large number of cases.
Table 8: The treatment status of patients that refused transport and were or were not assigned a Final
Assessment code (n = 16,463)
Missing code Final Assessment coded
n % n %
Treated 7,970 88.0 7,240 97.7
Patient refused assessment 889 9.8 45 0.6
Patient assessed refused transport 106 1.2 79 1.1
No emergency care required 45 0.5 45 0.6
Other 43 0.5 0 0
Total 9,053 55.0 7,410 45.0
The 7,410 cases that were allocated a final assessment code (45% of the total
refusal cases), were allocated to 105 different ‘Final Assessment’ categories, with the
great majority (over 85%, n = 6,363) allocated to just 29 ‘Final Assessment’
categories. Figure 7 displays each of 29 ‘Final Assessment’ categories to which the
majority of refusal cases were allocated, and the number of patients allocated to each
category.
Just fewer than 30% of the 6,363 refusal cases were coded as ‘Pain’ and a
further 30% were coded as a variety of minor injuries, such as bruising, abrasions
and lacerations. Another 14% had suffered some form of self-limiting condition
such as hypoglycaemia, seizure, dizziness or collapse. In 9.2% of the cases, either
‘No Problem’ or ‘Unknown Problem’ was recorded.
Chapter 4: Epidemiological and Demographic Characteristics of Patients Who Refuse Paramedic
Treatment and Transport
141
Figure 7: Final assessment of patients refusing transport (n = 7,410), showing the 29 categories that
account for 85.95% of coded cases
Limitations
An in-depth understanding of this problem is confounded by the lack of coding
for a substantial proportion of the patients who refused paramedic treatment and/or
transport during the study period. Paramedics are provided with instructions
regarding the completion of the eARF and the selection of appropriate codes and
categories that accurately reflect each case. However, there is no independent
validation of the clinical assessments made by the attending paramedic or the
selection of clinical codes and categories assigned to each case. As such, there may
be significant variation between paramedics, and possible errors in the codes selected
by the paramedic that is in attendance.
2129
528
485
478
276
252
245
203
199
126
117
117
113
95
94
81
80
77
73
69
67
65
63
60
58
56
56
51
50
0 500 1000 1500 2000 2500
Pain
Seizure/convulsion
Laceration
No problem detected
Bruising
Abrasion/graze
Soft tissue injury
Unknown problem
Faint
Fractrure
Gastro problem
Hypoglycemic
Anxiety
Vomiting
Shortness of breath
Collapse
Social problem
Infection - other
Head injury
Headache
Dizzy
Allergic reaction
Altered consciousness
Febrile
Post loss of consciousness
Asthma
Chest infection
Emotionally distressed
Burn
142 Chapter 4: Epidemiological and Demographic Characteristics of Patients Who Refuse Paramedic
Treatment and Transport
4.6 SUMMARY
This chapter initially presented a review of the literature, albeit limited, relating
to the frequency and circumstances involving patient refusals. With the exception of
one study that was conducted in Australia, the literature reported on studies that were
conducted in North America, the United Kingdom, and a single study in Taiwan.
The review found that paramedics in these countries were frequently required to
respond to a patient-initiated refusal of treatment and/or transport against advice, and
that refusals occurred more commonly in circumstances involving medical
conditions, and trauma following a road traffic crash or head injury. Alcohol
intoxication was also identified as a common factor among patients that refused.
The chapter then presented the findings of the quantitative analysis of QAS
data relating to cases coded by Queensland paramedics as a case involving a ‘refusal
of ambulance transport against paramedic advice’ between January and December
2011. The analysis concluded that a staggering 16,462 or 2.67% of the patients that
were attended by paramedics during 2011 refused to provide consent for paramedic
treatment and/or transport and did so against paramedic advice. This number
computes to a refusal every 50 minutes of each day during that twelve-month period.
The key findings of this analysis suggest that the cohort of patients who refuse
treatment and/or transport is not significantly different from the general QAS patient
population in terms of their age, gender and location of the incident.
The majority of refusals take place at a private residence, which suggests that
the patient, or someone that is known to the patient, made the request for paramedic
assistance. This does raise questions as to why assistance was requested but then
declined. It is understandable that when an event occurs in a public place, a third
person may have called for assistance only to see that assistance declined by the
patient however, this dynamic would be less likely in a private residence.
The overwhelming majority of patients who refuse treatment and/or transport
suffer from a medical complaint or have sustained a traumatic injury as a
consequence of a vehicle collision, a fall or a physical assault. This finding is
contrary to any perception that patients who refuse recommended paramedic
treatment and/or ambulance transport are behaviourally challenging with high levels
of drug and alcohol intoxication.
143
PART THREE: FINDINGS - PARAMEDIC
KNOWLEDGE AND APPLICATION OF THE
LAW IN PRACTICE
Chapter 5: Overview of Findings and Initial Process Applied 145
Chapter 5: Overview of Findings and
Initial Process Applied
5.1 INTRODUCTION
This chapter introduces Part 3 of the thesis, which presents the findings of the
qualitative component of this research and more specifically, the research questions
regarding paramedics’ knowledge, understanding and application of the law that
regulates patient decisions to refuse paramedic treatment and/or ambulance transport.
Before introducing the findings, this chapter will first provide an overview, in
section 5.2, of the education of paramedics that relates to the topic of patient
decisions to refuse paramedic treatment and ambulance transport. The chapter will
then review, in section 5.3, the relevant QAS procedural guidelines that are in place
in Queensland, which serve to inform and guide QAS employed paramedics when
responding to a patient’s decision to refuse.469 An understanding of paramedic
education and employer guidelines specific to this area of clinical practice will
provide additional and relevant context to the research findings that follow, and will
help to frame the recommendations that emerge from those findings.
In section 5.4 of the chapter, a brief revision of the focus group discussion
processes, and the individual paramedic interview procedures will be presented,
followed by the findings of the discussions and interviews with respect to the
common or core categories that were grounded in the data from those processes.
It is important to reiterate, that the purpose of the focus group discussions was
to elicit data that would provide direction for the conduct of the paramedic
interviews, and assistance with framing of the interview questions that were
subsequently posed to paramedic participants. The categories that were grounded in
the focus group data were: identifying a true refusal; assessing decision-making
capacity; influencing patients; and providing information.
469 State of Queensland (Queensland Ambulance Service) Digital Clinical Practice Manual, April
2019 <https://www.ambulance.qld.gov.au/clinical/Introdction.pdf> at 24 April 2019.
146 Chapter 5: Overview of Findings and Initial Process Applied
The four common categories that were grounded in the individual paramedic
interview data were: initial process applied; assessing decision-making capacity;
assessing/determining a voluntary decision; and providing information to patients.
Each of these categories is introduced in this chapter however the findings are
explored in detail and presented elsewhere in this part of the thesis.
The category, ‘identifying a true refusal’ is discussed in section 5.5. Focus
group participants raised concerns regarding whether paramedics could identify a
true refusal and thereafter, manage the situation appropriately and in accordance with
the relevant law. This category is explored from the perspective of paramedic
knowledge and the ability to identify when a true refusal of treatment and/or
transport arises.
The category, ‘initial process applied’ is discussed in section 5.6. The section
captures information regarding how participants initially respond to a patient when
informed of the patient’s decision to refuse recommended paramedic treatment
and/or transport and the process that they apply. The section is relatively small and
for this reason, has been included at the completion of this overview chapter in
preference to creating a separate chapter as done with other larger categories.
5.2 PARAMEDIC EDUCATION IN LAW AND ETHICS
The education of paramedics in Australia has undergone a revolutionary
change during the past two decades, transitioning from employee-based vocational
education and training programs, to university-based bachelor’s degrees in
paramedicine.470
At the commencement of this research project, there was no single legislated
forum in Australia that was responsible for the development of educational standards
for paramedics, or the accreditation of paramedic education programs.471 The
Council of Ambulance Authorities did, however, provide an accreditation process for
university-based courses in paramedic studies, which addressed necessary
470 See Australian Learning and Teaching Council, Paramedic education: developing depth through
networks and evidence-based research: Final Report 2009 <http://www.altc.edu.au/resource-
paramedic-education-flinders-2009> at 2 September 2011. 471 Australian Health Ministers Advisory Council, Health Workforce Principal Committee,
Consultation Paper: Options for regulation of paramedics, July 2012, 14
<https://www.paramedics.org/content/2012/07/Consultation-Paper-Paramedic-Registration.pdf> at 20
November 2016.
Chapter 5: Overview of Findings and Initial Process Applied 147
competencies for employment as an entry-level paramedic with an Australasian
ambulance service.472 The competency that related to this specific area of practice
provided that the graduate must ‘demonstrate the need to respect, and so far as
possible uphold, the rights, dignity, values and autonomy of every patient/service
user’.473
As of 1 December 2018, paramedics are regulated under the National Health
Practitioners Registration and Accreditation Scheme474 (the Scheme). The Scheme,
which includes the Paramedicine Board of Australia,475 will be responsible for the
development and reviewing of accreditation standards and the accreditation and
monitoring of education providers into the future.476
A review of the Australian university-based degrees in paramedicine or
paramedic science revealed that programs include a component of study that address
legal and ethical principles relevant to paramedic practice.477 What is not evident is
the extent to which these programs address the specific topic of refusal of paramedic
treatment and/or ambulance transport, or equip paramedics with the necessary
knowledge and skills to respond to a situation involving a patient who elects to
refuse treatment against their advice.
Paramedics, who received education and clinical training in Queensland prior
to the commencement of university-based programs, completed a range of employer-
based vocational training programs and were awarded qualifications that included an
472 Council of Ambulance Authorities, Paramedic Competency Standard Version 2.2 <
http://www.caa.net.au/images/documents/accreditation_resources/Paramedic_Professional_Competen
cy_Standards_V2.2_February_2013_PEPAS.pdf> at 20 November 2016. 473 Ibid 14. 474 The Scheme was established pursuant to the Health Practitioner Regulation National Law Act
2009 (Qld) (National Law). 475 The Paramedicine Board of Australia is established pursuant o the National Law, s31. 476 Pursuant to the National Law, s35(1)(d)-(e). The accreditation functions of the Paramedicine
Board of Australia will be exercised by the Accreditation Committee will make recommendations to
the Board. See Paramedic Board of Australia – Education at
<http://www.paramedicineboard.gov.au/Education.aspx> 477 See for example: QUT, Bachelor of Paramedic Science, CSB342 Ethics and Law in Health Service
Delivery <http://pdf.curses.qut.edu.au/coursespdf/qut_CS43_24300_dom_CMS.pdf> at 14 March
2013; Victoria University, Bachelor of Health Science (Paramedic), HFB1112 Pre-hospital Ethical
and Legal Issues <http://www.vu.edu.au/units/HFB113> at 1 March 2013; The University of
Queensland, Bachelor of Paramedic Science, HLTH3000 Legal & Ethical Principles in Health
<http://www.uq.edu.qu/study/program_list.html?acad_prog=2323> at 1 March 2013.
148 Chapter 5: Overview of Findings and Initial Process Applied
Associate Diploma478 and Diploma of Paramedical Science (Ambulance)479 or
equivalent.480 These programs were offered in Queensland and were delivered by the
QAS and initially administered by the South Bank College of Technical and Further
Education (TAFE). In 1998, the QAS registered as a Vocational Education and
Training (VET) provider, and from that time, the QAS delivered and administered
the Diploma program.481 Both the TAFE administered program and the QAS VET
program included a legal subject that addressed the topic of consent and refusal of
paramedic treatment.482
Educational Qualifications of the Study Participants
There were thirty individual paramedic participants interviewed during this
study, of which fourteen had completed an Associate Diploma or Diploma of
Applied Science or equivalent, eleven in Queensland and three in other jurisdictions.
The remaining sixteen participants had completed a bachelor’s degree in paramedic
science with thirteen of the sixteen graduating from Queensland universities and
three from other universities is other jurisdictions.
All university graduates commencing employment with the QAS, and
paramedics who have obtained vocational qualifications and workplace experience in
jurisdictions other than Queensland, complete an internship program that commences
with a five-week induction program that must be completed before graduates are
deployed to operational duties.483 The program includes a full day legal workshop
where participants are afforded the opportunity to revise areas of the law that are
relevant to paramedic practice in Queensland, and to examine QAS practice
478 CN N64 Associate Diploma of Applied Science (Ambulance) offered between January 1992 and
May 2005. 479 Diploma of Paramedical Science (Ambulance) offered from December 2015. 480 Michael Eburn and Jason Bendall, ‘The provision of Ambulance Services in Australia: a legal
argument for the national registration of paramedics’ (2010) 8 Journal of Emergency Primary Health
Care1 <http://ro.ecu.edu.au/jephc/vol8/iss4/4 481 Registration as a training provider with the Australian Skills Quality Authority. See
<https://training.gov.au/Organisation/Details/5285> 482 Ambulance Legal and Administration. The subject was initially delivered by guest lecturers who
were, at the relevant time, lecturers in the School of Justice at QUT, and thereafter, by the researcher. 483 Graduate Paramedic Internship Program. The program is an industry-specific inductionto the
QAS. The program facilitates the transition of graduates from a tertiary education course majoring in
paramedicine, to graduate paramedic clinical practice. State of Queensland (Queensland Ambulance
Service), Education Plan 2018-2019.
Chapter 5: Overview of Findings and Initial Process Applied 149
guidelines and procedures that articulate key legal principles and obligations.484
Patient decision-making and refusal of paramedic treatment and/or ambulance
transport is addressed during the workshop.
In addition to the Graduate Paramedic Internship Program, QAS employed
paramedics have access to regular professional development programs. The
professional development programs are supplemented by frequent information
updates that are disseminated to the workforce via electronic mail. Topics that are
covered in both the professional development programs and electronic mail updates
are varied and have included information regarding patient decision-making and
ambulance services and refusal of paramedic treatment and/or transport.485
5.3 QAS CLINICAL PRACTICE GUIDELINES AND PROCEDURES
The QAS Clinical Practice Manual (CPM)486 is created in digital form and is
readily available, both on-line and via a QAS issued iPad that is provided to each
paramedic for their exclusive use. The digital CPM (DCPM) aims to provide QAS
paramedics with detailed Clinical Practice Guidelines (CPGs) and clearly articulated
Clinical Practice Procedures (CPPs) and Drug Therapy Protocols (DTPs) that are
evidence based and consistent with contemporary standards of practice.487
The purpose of CPGs is to provide QAS paramedics with information
regarding best practice and to guide them through the clinical decision-making
process.488 CPPs consist of prescribed clinical procedures that are intended to direct
paramedics in specific circumstances to ensure consistency and quality in the
performance of specified clinical activity.489 The methodology that is used by the
QAS to develop and subsequently review DCPM guidelines, procedures and
484 For example, practice guidelines relating to: Refusal of Treatment or Transport; Transport of a
Person under the Mental Health Act 2016; Resuscitation Guidelines and withholding and withdrawal
of life sustaining measures; executing an Emergency Examination Authority under the Public Health
Act 2005. 485 The eLearnng platform QAS Collaborative Learning On-line (QASCLO) is used extensively for
this purpose. All QAS paramedics have access to the platform. State of Queensland (Queensland
Ambulance Service) QAS Education Plan, 2018-2019. 486 State of Queensland (Queensland Ambulance Service) Digital Clinical Practice Manual, April
2019 <https://www.ambulance.qld.gov.au/clinical/Introdction.pdf> at 24 April 2019. 487 State of Queensland (Queensland Ambulance Service), Clinical Practice Manual, Clinical
Guideline Development Methodology, April 2017
<https://ambulance.qld.gov.au/docs/clinical/Introduction.pdf > at 24 April 2019, 3. 488 Ibid 6. 489 Ibid 7.
150 Chapter 5: Overview of Findings and Initial Process Applied
protocols, is the Appraisal of Guideline for Research and Evaluation (AGREE II)
instrument,490 which involves multiple stages of rigorous examination and review by
relevant subject experts.491
There are two QAS CPGs that are relevant when considering issues involving
patient decision-making, including decisions to refuse paramedic treatment and/or
transport against advice. The first guideline: Guide to Patient Decision Making in
Ambulance Services492 provides QAS paramedics with information regarding consent
for paramedic treatment and ambulance transport, and addresses consent provided by
adults, children, and adults with impaired decision-making capacity. The guideline
emphasises the patient’s right to make a choice regarding treatment and transport,
and the requirement that consent be obtained by the paramedic before these services
are provided.493 The guideline lists the elements of a valid consent as: the
requirement that the patient’s decision is voluntary and free from undue influence;494
the patient has been informed in broad terms about their condition, proposed
paramedic treatment and risks;495 that the decision relates to the actual treatment that
is provided by the paramedic;496 and the patient has the requisite decision-making
capacity to make the decision.497 A guideline to assist the paramedic conduct an
490 Appraisal of Guideline for Research and Evaluation (AGREE II) instrument is a genetic tool
designed by the AGREE Research Trust to assist guideline developers. See <http://agreetrust.org> at
24 April 2019. 491 State of Queensland (Queensland Ambulance Service), Clinical Practice Manual, Clinical
Guideline Development Methodology, April 2017
<https://ambulance.qld.gov.au/docs/clinical/Introduction.pdf > at 24 April 2019, 5. 492 State of Queensland (Queensland Ambulance Service), Digital Clinical Practice Manual, Guide to
Patient Decision Making in Ambulance Services, April 2017<
<https://www.ambulance.qld.gov.au/clinical/Introduction/.pdf> 19-29 at 24 April 2019. 493 Ibid, 20. The basic statement of principle from Schloendorff v Society of New York Hospital 211
NY 125 (1914) per Cardozo J at 129 was adopted by the High Court of Australia in Secretary,
Department of Health and Community Services (NT) v JWB and SMB (Marion’s Case) (1992) 175,
218. The principle is discussed in Chapter 3 of this thesis at section 3.2. 494 Ibid 20. Citing as approval, Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649, 669. 495 Ibid 21. Citing as approval, Chatterton v Gerson (1981) QB 432, 443; and Rogers v Whitaker
(1992) 175 CLR 479, 490. 496 Ibid [21]. Citing with approval, Murray v McMurchy [1949] 2 DLR 442; and Walker v Bradley,
unrep, District Court of New South Wales, No. 1919/89, 22 December 1993. 497 Ibid 20-22. Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649; Re MB (Medical
Treatment) [1997] 2 FCR 514, 553; Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290, 294; Re
MB (Medical Treatment) [1997] 2 FLR 426, 436; HE v A Hospital NHS Trust [2003] 2FLR 408, 414-
5; Hunter and New England Area Health Service v A (2009) 74 NSWLR 88; Brightwater Care Group
(Inc) v Rossiter [2009] WASC 229 [23].
Chapter 5: Overview of Findings and Initial Process Applied 151
assessment of the patient’s decision-making capacity is also provided.498 The
guideline involves four dimensions: retention of information by the patient;
processing and understanding of the information that has been provided; ability to
arrive at a clear choice and doing so voluntarily; and effectively communicating their
choice any means.
The guideline also refers to the presumption of capacity principle and provides
paramedics with both a definition499 of the principle, and a list of clinical
circumstances and medical conditions that could potentially impact on a person’s
decision-making capacity, thereby rebutting the presumption of capacity.500 The
circumstances that are listed in the guideline include alcohol intoxication, drug
toxicity, and intellectual impairment. A number of medical and trauma related
conditions are also specified and include head injury, hypoxia or any medical
condition that may cause hypoxia, dementia, acute mental illness and severe pain.
The guideline urges paramedics to be alert to these conditions and circumstances,
and in the event that they are present, to undertake an assessment of the patient to
determine if the condition has compromised the patient’s capacity to make the
decisions that need to be made regarding their immediate health care.501
The QAS guideline is consistent with the law in this regard,502 and the medical
conditions and circumstances that are listed as potentially rebutting the presumption
498 Ibid 22. Grisso, T and Aplebaum P.S, Assessing Competence to Consent to Treatment; A guide for
physicians and other health professionals (Oxford University Press, New York, 2008) 31-33 and
adopted in State of Queensland (Queensland Health) End of Life Care: Decision-Making for
Withholding and Withdrawing Life-Sustaining Measures from Adult Patients, Part 1, p12-13.
Implementation Guideline [Accessible via Intranet by Queensland Health staff only]. 499 The CPG states: ‘every adult is presumed to have the capacity to make decisions about health care,
unless it can be demonstrated that they don’t.’ This definition is consistent with the law as cited in
numerous cases including: Re MB (Medical Treatment) [1997] 2 FCR 514, 553; Re C (Adult: Refusal
of Treatment) [1994] 1 WLR 290, 294; Re MB (Medical Treatment) [1997] 2 FLR 426, 436; HE v A
Hospital NHS Trust [2003] 2FLR 408, 414-5; Hunter and New England Area Health Service v A
(2009) 74 NSWLR 88 [23]. 500 Ibid 21. 501 Ibid 21-22. 502 Re MB (Medical Treatment) [1997] 2 FCR 514, 553; Re C (Adult: Refusal of Treatment) [1994] 1
WLR 290, 294; Re MB (Medical Treatment) [1997] 2 FLR 426, 436; HE v A Hospital NHS Trust
[2003] 2FLR 408, 414-5; Hunter and New England Area Health Service v A (2009) 74 NSWLR 88;
Brightwater Care Group (Inc) v Rossiter [2009] WASC 229 [23]. Re T (Adult: Refusal of Medical
Treatment) [1992] 4 All ER 649, 661; Re B (Adult: Refusal of medical treatment [2002] 2 All ER 449,
472.
152 Chapter 5: Overview of Findings and Initial Process Applied
of capacity, thus eroding decision-making capacity, align with judicial statements in
relation to this point.503
The second guideline: Patient Refusal of Treatment or Transport504 restates
and reinforces the patient’s right to make decisions, including the decision to refuse
paramedic treatment and/or transport.505 The guideline stipulates that the paramedic
must conduct an assessment to determine if a patient’s decision to refuse is legally
valid, and then proceeds to provide guidelines for the paramedic to assist them when
making this assessment. The assessment is referred to as a ‘VIRCA’ assessment,
which was developed by the QAS, but which seeks to embody the legal requirements
of a valid contemporaneous decision to refuse.506
The acronym ‘VIRCA’ captures the four elements of what were considered to
constitute a valid decision to treatment at the time the guideline was developed. The
first four letters of the acronym, which are discussed below, each represent aspects of
the patient’s decision that require assessment or action by the paramedic. The fifth
letter represents the requirement that the paramedic provide the patient with
additional advice after the patient’s decision has been assessed as valid, and before
the paramedic departs.507
The CPG and the VIRCA tool that it establishes is inconsistent with the law for
reasons that are set out below.
The ‘V’ in the acronym is indicative of ‘voluntary’ and the need for the
decision to reflect the patient’s choice with respect to treatment options, and not one
that has resulted from coercion or undue influence exerted by another.
This requirement accurately reflects the law. As discussed in Chapter 3 of this
thesis, a decision to refuse treatment must be a voluntary decision, not coerced,
503 In the case of Re T (Adult: Refusal of Medical Treatment) [1992] 4 ALL ER 649 at 661, Lord
Donaldson LJ noted that a patient may be deprived of capacity as a consequence of mental illness or
an intellectual disability, but that their capacity could also be reduced, albeit temporarily, by such
factors as: unconsciousness, confusion, or the effects of fatigue, shock, pain or drugs. 504 State of Queensland (Queensland Ambulance Service), Clinical Practice Manual, Patient Refusal
of Treatment or Transport, October 2017< https://www.ambulance.qld.gov.au/clinical.html> at 4
June 2017, 196 505 Citing Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649 as authority for this
principle. 506 The guideline was first developed in 1995 following the death of a patient that had refused
ambulance transport to hospital. 507 VIRCA: Voluntary; Informed; Relevant; Capacity; Advice.
Chapter 5: Overview of Findings and Initial Process Applied 153
unduly influenced, or made based on false or misleading information.508 The
guideline references Re T (Adult: Refusal of Medical Treatment)509 as authority.
The ‘I’ in the acronym represents ‘information’ and the requirement that the
paramedic provide the patient with information regarding their clinical condition or
suspected condition as assessed by the paramedic. Information is also to include the
recommended treatment options, the risks associated with the condition and the
potential consequences of the patient’s decision to refuse that treatment and transport
that is recommended.
There is no dispute that a consent for medical treatment would be invalidated if
the patient was not provided with information 'in broad terms,' regarding the nature
and effect of the treatment. 510 However, there is a division of opinion, both judicially
and in associated academic commentary relating to information and whether or not a
decision to refuse could be invalidated if information regarding the benefit of the
treatment, and the consequences and risks associate with the decision to refuse, were
not provided. The issue has not been judicially resolved however there is strong
support for the view that the failure to provide a patient with information will not
invalidate the patient’s decision to refuse.511
As we will see in Chapter 8 of this thesis, paramedics adopt a very pragmatic
view to the requirement that they provide their patients with information regarding
benefits and risks, or at least make every effort to do so. They view this as a
necessity so that the ‘patient can make the best possible decision for themselves.’512
The third letter of the acronym, ‘R’ requires that the patient’s decision to refuse
relate specifically to the treatment and/or transport that have been recommended and
refused.
508 See discussion in Chapter 3, section 3.4.2. 509 Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649. Other authorities include: Re B
(Adult: Refusal of Medical Treatment) [2002] 2 All ER 449; HE v A Hospital NHS Trust [2003] 2FLR
408; Hunter and New England Area Health Service v A (2009) 74 NSWLR 88. 510 Chatterton v Gerson (1981) QB 432, 443. Cited with approval in Rogers v Whittaker (1992) 174
CLR 479, 489-90. 511 Freckelton, above n 81. 512 Comment attributed to participant (PP01). See discussion in Chapter 8, section 8.2.
154 Chapter 5: Overview of Findings and Initial Process Applied
This requirement is relevant in circumstances where the patient decides to
provide consent for treatment;513 the consent must relate to the treatment that is
ultimately provided. It would also be relevant in circumstances where a patient has
provided a prior refusal for specific treatment and the patient’s clinical condition has
now changed necessitating that treatment, and their decision-making capacity has
also changed. It is not however, a relevant consideration in the circumstances
involving a contemporaneous refusal, except perhaps to encourage the paramedic to
explore the scope of the patient’s decision and confirm exactly that which is the
subject of the decision to refuse.
The fourth letter, ‘C’ refers to capacity and the need for the paramedic to be
satisfied that the patient is capable of understanding the nature and consequences of
the decision that has been made.514
In relation to decision-making capacity, the guideline refers to the ‘gravity of
risk’ principle and states that ‘it is a factor to be considered when assessing a
patient’s capacity to make a decision. The more serious the situation and the greater
the risk involved, the greater the level of understanding required’. This statement
accurately reflects the law in relation to the ‘gravity of risk’ principle.515
The fifth letter of the acronym, ‘A’, represents ‘advice’ and is only
implemented in circumstances where the paramedic concludes that the patient’s
decision is lawfully valid. The guideline requires that the paramedic provide advice
to the patient that is specific to the patient’s immediate needs and which is aimed at
promoting their comfort and safety following the departure of the paramedic from
the scene.
If the paramedic concludes that the patient’s decision is one that is lawfully
valid, the guideline requires the paramedic to respect the patient’s decision and
513 Chatterton v Gerson (1981) QB 432, 443. Cited with approval in Rogers v Whittaker (1992) 174
CLR 479, 489-90 514 Decision-making capacity has been discussed in Chapter 3 of this thesis in section 3.4.1. See also:
Re MB (Medical Treatment) [1997] 2 FCR 514, 553; Re C (Adult: Refusal of Treatment) [1994] 1
WLR 290, 294; Re MB (Medical Treatment) [1997] 2 FLR 426, 436; HE v A Hospital NHS Trust
[2003] 2FLR 408, 414-5; Hunter and New England Area Health Service v A (2009) 74 NSWLR 88;
Brightwater Care Group (Inc) v Rossiter [2009] WASC 229 [23]. 515 Re B (Adult: Refusal of medical treatment [2002] 2 All ER 449, 472; Hunter and New England
Area Health Service v A (2009) 74 NSWLR 88, [24].
Chapter 5: Overview of Findings and Initial Process Applied 155
document the assessment findings and the advice that was provided to the patient,
including recommendations regarding treatment and further medical assessment.
If the paramedic concludes that the patient’s decision is invalid, and that the
patient has impaired decision-making capacity, the guideline requires the paramedic
obtain consent, if it is possible to do so, from a person who is authorised to provide
consent for, and on behalf of, the patient. However, if the patient requires urgent
treatment in order to avert a serious risk to the patient’s life or health, the paramedic
is required to provide that treatment in accordance with the relevant guidelines set
out in the QAS CPM, and to explore options to ensure that the patient is safely
transported to a hospital or health care facility so that further and more
comprehensive assessments can be undertaken, and management options explored.516
The QAS guideline, Patient Refusal of Treatment or Transport,517 is not
consistent with the law that regulates contemporaneous decisions to refuse. The
guideline erroneously refers to four elements that must be satisfied for a
contemporaneous decision to be lawfully valid. As we saw earlier in Chapter 3 of
this thesis, there are in fact only two requirements that must be met before a
contemporaneous decision to refuse paramedic treatment would be deemed to be
valid under the common law.518 The first requirement is that the person is competent
or has the requisite decision-making to make the decision at hand.519 The second
requirement is that the decision is made voluntarily, free from coercion or undue
influence, and is not made on the basis of false or misleading information.520
Although the guideline is inconsistent with the law, paramedics who comply
with the guideline would not be in breach of the law. This issue is addressed in
detail in section 5.6 of this Chapter.
516 The guideline correctly references the Guardianship and Administration Act 2000 (Qld), s63 as
authority for this direction. 517 State of Queensland (Queensland Ambulance Service), Patient Refusal of Treatment or Transport,
October 2017< https://www.ambulance.qld.gov.au/clinical.html> at 4 June 2017, 196 518 See discussion in Chapter 3, section 3.4. 519 Re B (Adult: Refusal of Medical Treatment) [2002] 2 All ER 449. 520 Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649.
156 Chapter 5: Overview of Findings and Initial Process Applied
5.4 INTRODUCTION TO THE FINDINGS - KNOWLEDGE AND
APPLICATION OF THE LAW
In order to determine paramedics’ knowledge and application of the law that
regulates decisions to refuse paramedic treatment and/or transport, three focus group
discussions were conducted with groups of experienced paramedics, followed by
semi-structured individual interviews with thirty paramedics who were purposively
selected using the three-step process discussed earlier in Chapter 2 of this thesis.521
For ease of reference, a brief summary of the three-step process has been provided
below.
The first step involved focus group discussions with small numbers of senior
paramedics engaged in supervisory roles.522 The purpose of the focus group
discussions was twofold. First and foremost, it was to identify issues of concern for
paramedics when responding to patient refusals, and case types that were viewed by
the focus group participants as potentially challenging for the attending paramedic
when associated with a decision to refuse treatment and/or transport. Information
obtained from the focus group discussions in relation to this point was then used to
compile criteria that would subsequently aid in the identification and extraction of
specific refusal cases from the QAS clinical database.523 The second purpose of the
focus group discussions was to gain a deeper insight into the research phenomenon.
This was achieved by eliciting the views held by these experienced practitioners
regarding their colleagues’ knowledge and application of the relevant law in their
practice.524
The second step involved the review of information relating to over 2,500
refusal cases that involved clinical and other factors that met the criteria developed
following analysis of data obtained from the focus group discussions. This review
521 See discussion in Chapter 3, section 2.3.3 and illustration in Figure 1 above. 522 See discussion in Chapter 3, section 3.4.3.1 above. The senior positions occupied by focus group
participants were Officer in Charge (OIC) of a QAS station and Clinical Support Officer (CSO) within
a designated geographical area. 523 The criteria that was identified by the focus group participants and ultimately included in the script
for case identification and extraction, included the following: refusal against paramedic advice;
patient over 18 years of age; case nature recorded as: unknown; neurological; assault; vehicle
collision; cardiac; respiratory; or drug overdose. 524 Focus group participants that occupied the role of OIC or CCO had extensive clinical experience
and are required in their respective roles, to provide supervision and clinical direction to colleagues
that were assigned to work within their geographical catchment area. As part of their role, OICs and
CSOs are required to conduct routine clinical audits of cases involving patient refusals.
Chapter 5: Overview of Findings and Initial Process Applied 157
resulted in the identification and ultimate selection of 147 cases that met more than
one of the clinical selection criteria that had been developed.
The third step involved a review of the de-identified clinical record (eARF)
compiled by the paramedic in each of the 147 cases referred to above, and the
identification of the attending paramedic who was subsequently invited to participate
in a semi-structured interview.
Focus Group Discussions
As previously mentioned, focus group discussions were conducted with three
groups of purposively selected paramedics who held senior positions in the QAS in
either the capacity of an Officer in Charge (OIC) of a QAS station, or a Clinical
Support Officer (CSO) within a designated geographical area.525 Paramedics
appointed to these positions, either on a temporary or permanent basis, are required
to have extensive clinical experience, and be capable of providing supervision and
clinical direction to their colleagues. As part of their role, OICs and CSOs are also
required to conduct routine clinical audits of cases that occur within their designated
area.526 The combination of their own clinical experience responding to cases
involving a patient refusal, and their experience supporting, guiding, and reviewing
countless cases in which colleagues have responded to patient refusals,527 meant that
focus group participants were well positioned to provide information that was
relevant to the research questions, and which could provide direction for conducting
of the semi-structured interviews with individual paramedic participants.
The focus group discussions were audio-recorded and transcribed verbatim.
The transcripts were subsequently imported into the qualitative data software
525 See section 2.4.3.1 for details regarding the Focus Group procedures. 526 Clinical audits are conducted using a clinical audit and review tool (CART) that enables clinical
practice to be measured against prescribed standards. Where variations between that which is
required and that which is provided are identified, the variation is reported using a scale of one to four.
A variation of one is deemed to be insignificant whereas a variation of four would indicate a major
deviation from expected standard. 527 Cases that result in non-transport, where a paramedic has responded to a request for ambulance
services, has seen the person for whom the services are requested and then left the scene without
transporting the person to a hospital or health facility, are required to be mandatorily audited, in the
first instance, at the ambulance station level by either the OIC or the CSO. The decision not to
transport a patient could arise from either one of two circumstances: the patient refused transport
against advice or the paramedic formed the view that the patient’s condition did not warrant transport
to a hospital or health care facility. A clinical audit of a non-transport case involves a review of the
clinical record (the eARF) that was compiled by the paramedic that attended the patient.
158 Chapter 5: Overview of Findings and Initial Process Applied
program, NVivo (Version 11). Analysis was conducted using the two-step coding
process528 to identify common occurring categories, of which there were four that
related to the research questions regarding paramedic knowledge of the law that
regulated patient refusals, and paramedic practice when responding to a patient who
refused recommended paramedic treatment or transport. The categories were:
identifying a true refusal; assessing decision-making capacity; providing information
that is capable of being understood; and influencing patients.
Focus group participants in each of the three groups opined that their
colleagues had a poor understanding of the law relating to patient decision-making,
and that there were notable shortcomings in the way they applied the law in their
practice. The first of the shortcomings that participants described related specifically
to paramedics’ knowledge and understanding of the law regarding decision-making
capacity, and how they applied that law to determine if a patient had the requisite
capacity to make the decision to refuse (assessing decision-making capacity). The
second shortcoming related to the manner and content of communications between
the paramedic and the patient at that time of the refusal (providing information that is
capable of being understood). And the third shortcoming related to the interaction
between the paramedic and the patient that had refused, and their belief that
paramedics were influencing patients to accept paramedic treatment against the
patient’s express wish (influencing patients).
In addition to the three common categories relating to decision-making
capacity, provision of information, and influencing patients’ decisions, a fourth
category was grounded in the data obtained from two of the three group discussions.
Focus group participants in these groups529 suggested that the frequency that QAS
paramedics attended patients who refused treatment and/or transport, was less than
that which was reflected in the QAS data. Participants were of the view that
paramedics either did not know what constituted a true ‘refusal against advice’, or
were incorrectly coding cases as a ‘refusal against advice’, either intentionally or
mistakenly, in circumstances where the case was clearly one in which the paramedic
528 Advocated by Charmaz, above n 86. Initial coding was conducted manually on a line-by-line basis.
Focused coding followed, where frequently occurring codes that had been established during the
initial coding, were grouped into categories. See discussion in Chapter 2, section 2.3.2.2 (vii) and
section 2.3.3.1.3. 529 FG 001.3 and FG001.2
Chapter 5: Overview of Findings and Initial Process Applied 159
considered that transport to hospital was not warranted, rather than one in which
treatment and/or transport was refused.
This fourth category may have directly related to clinical documentation and
paramedics’ knowledge and selection of accurate clinical reference codes,530 an area
that is outside of the scope of this study. However, the category may have also
captured a deficiency in paramedic knowledge resulting in the inability to identify
‘true refusal’ cases, or those in which the law that regulates decisions to refuse
paramedic treatment and/or transport should be applied. For this reason, the category
‘identifying a true refusal’ was included and explored during the individual
paramedic interviews.
Individual Paramedic Interviews
Thirty individual paramedic interviews were conducted over a seven-month
period and were done so at a time and location of each participant’s choosing. The
interviews were semi-structured and involved two phases to the interview. During
the first phase, participants were asked open-ended questions regarding how
paramedics would generally manage a situation involving a patient refusal.531
Participants responded and raised several issues with very little requirement for
prompting or interjection on the part of the interviewer. Some participants referred
to the QAS practice guidelines and merely elaborated on the content therein
however, most participants provided narratives of varying length and detail that
offered valuable insight into their knowledge and application of both the clinical and
legal requirements when responding to a patient who had refused treatment and/or
transport.
During the second phase of the interview, participants were questioned
regarding a specific case that they had attended (the interview case) and were invited
to provide fulsome details regarding their management of the interview case. De-
identified patient records that had been compiled by the participant at the time the
530 See discussion in Chapter 2, section 2.3.1.1 regarding the QAS integrated clinical data collection
and information system that was in use at the time this research was conducted. The system supported
by the software program VACIS included a comprehensive set of clinical reference data and codes
from which paramedics could select when completing the clinical record. The system included a code
for cases that resulted in a ‘refusal of ambulance transport against paramedic advice’. 531 An example of the question posed to participants: “Can you tell me how you would generally
respond to a patient that refuses treatment or transport against your advice?”
160 Chapter 5: Overview of Findings and Initial Process Applied
interview case occurred, were also available during this phase of the interview and
revealed details that demonstrated the participant’s understanding of the law and how
they sought to apply the law in that particular case.
During the second phase of the interview, open ended questions addressing the
issues raised by focus group participants in each of the four categories: identifying a
true refusal; assessing decision making capacity; providing patients with information
that was capable of being understood; and influencing patients
The interviews were transcribed verbatim, and thereafter, imported into NVivo
(Version 11). Analysis was conducted using the two-step coding process that was
discussed in Chapter 2 of this thesis532 to identify common occurring categories.
There were five categories identified in the interview data. Four of the categories
related to the process that the paramedic would adopt when responding to a patient’s
decision to refuse: their initial response to the patient; the information and advice that
they considered was necessary to provide to the patient; how they would determine if
the patient had the requisite decision-making capacity; and their consideration of the
voluntariness of the patient’s decision. The fifth category related to the
psychological effect that patient refusals had on the attending paramedic. Whilst
information regarding this category was recorded and collated, a detailed analysis of
this data was outside the scope of the study.
Table 9: Overview of findings – common categories
Paramedic Response to Patient Refusal
Category
Individual Paramedic Focus Groups
Initial Response Initial process applied Identifying if there is a
true refusal
Decision-making
Capacity
Assessing/determining
patient’s decision-making
capacity
Assessing decision-
making capacity
Patient’s decision to be
voluntary
Assessing if the patient’s
decision is voluntary
Influencing patient
decisions
Providing information to Providing information Providing information that
532 See Chapter 2, section 2.3.3.3.3. Initial coding was conducted manually on a line-by-line basis.
Focused coding followed, where frequently occurring codes that had been established during the
initial coding, were grouped into categories.
Chapter 5: Overview of Findings and Initial Process Applied 161
the patient is capable of being
understood.
Identifying a True Refusal
Focus group participants expressed concern regarding paramedics’ knowledge
of what constituted a genuine patient-initiated refusal of treatment and/or transport
against advice, or ‘true refusal’, and the potential consequences that may arise from
this potential knowledge deficit. The concern arose from their experience
conducting clinical audits of refusal cases, where they identified that some cases did
not involve a ‘refusal against advice’ yet were coded by the attending paramedic as
such.
There was no knowledge deficit of this kind identified in paramedics that
participated in this study. The participants very clearly identified a ‘refusal against
advice’ as one in which the patient rejected recommended treatment and/or transport,
contrary to the strong recommendations of the attending paramedic. A number of
individual paramedic participants expressed the view that some confusion did exist
with respect correct coding of a case in circumstances where the patient refused
treatment and/or transport, and the paramedic accepted that transport was not
required. The participants also opined that in some cases, their colleagues were
incorrectly coding cases in which a patient was not transported and were doing so to
deliberately misrepresent the true nature of a case in order to avoid scrutiny.
Some of issues that were raised by the focus group participants and reinforced
by individual paramedic participants have not been considered in this thesis.533
However, the issues would have significant implications for ambulance service
providers and for this reason, the information obtained from both the focus group
interviews and the paramedic interviews have been included in section 5.5 of this
chapter with a recommendation that further research be conducted.
Initial Process Applied
The category, ‘initial process applied’, was the first category to emerge from
the paramedic interview data. The participant responses in this category highlighted
533 With the exception of lack of knowledge regarding that which constitutes a ‘true refusal’ and when
the law that regulates decisions to refuse should be applied.
162 Chapter 5: Overview of Findings and Initial Process Applied
participants’ knowledge and understanding of a patient’s right to refuse
recommended treatment and/or transport, and what they considered to be their legal
obligation to respect that right.534
Participants referred to the ‘validity’ of a patient’s decision to refuse, and
considered this to be fundamental to their clinical decision-making, and would
ultimately direct the course of action that would be taken.535 To that end, each
participant described a process that they would seek to implement, and assessments
that they would undertake, in all refusal cases.536 The process and assessments
commenced immediately upon arrival at the scene of an incident, and in some cases,
before they had the opportunity to see the patient for whom their services were
requested.
The findings as they relate to this category are presented in section 5.6 of this
Chapter.
Assessing Decision-Making Capacity
This second category, ‘assessing decision-making capacity’ evolved from
both the focus group discussion data, and the individual paramedic interview data.
Focus group participants were critical of their paramedic colleagues, both
with respect to their knowledge of the law concerning decision-making capacity, and
the means by which they assessed, and ultimately determined if a patient had the
requisite capacity to make a decision to refuse the paramedic treatment and/or
transport that had been recommended.
534 They acknowledged that this right is founded in the law but did not expand upon that. Some
participants referred to ‘autonomy’ and linked the principle of autonomy to the legal right to decide
but did not expand beyond the reference, nor were they asked to do so. 535 Participants considered that a valid decision to refuse involved four elements or components:
capacity; voluntariness; informed; and relevant. This view was influenced by what was recorded in
the QAS practice guidelines. Notwithstanding this view, their principal focus when determining the
validity of a patient’s decision was the patient’s decision-making capacity. They certainly considered
voluntariness (which is discussed in chapter 7 to follow), provided information (discussed in chapter
8), and did not understand the concept of relevance so largely dismissed it. 536 Participants saw this as a legal requirement but acknowledged that it was necessary, as the findings
would then guide the course of action that they were legally obliged to follow. For example, if the
patient’s decision was found to be valid, the paramedic was obliged to respect that decision. If the
decision was found to invalid for reason that the patient lacked the requisite capacity, the paramedic
was required to remain with the patient and consider management options appropriate to the
circumstances.
Chapter 5: Overview of Findings and Initial Process Applied 163
However, this thesis will demonstrate that the participants in this study had a
reasonable working understanding of the law as it related to decision-making
capacity in the context of a decision to refuse paramedic treatment and/or transport.
It will also demonstrate that the assessments undertaken by participants to determine
if the patient had the requisite decision-making capacity, were structured, focused
and holistic, enabling each participant to elicit, or make every effort to elicit
information that would allow the participant to correctly apply the law and to
determine the patient’s decision-making capacity, and do so having regard for each
of the relevant legal principles.
In some cases, participants were prohibited from reaching a conclusion
regarding a patient’s decision-making capacity. This did not relate to their
knowledge of the law, or their ability to correctly apply the law. Situations in which
this occurred involved patients who were invariably uncooperative and refusing to
answer questions posed by the paramedic or were unable to do so.
The findings of this category are presented in Chapter 6. The Chapter will
begin with a presentation of the findings of the focus group discussions as they relate
to the ‘assessing decision-making capacity’. As discussed earlier in this chapter, the
focus group findings are not considered for the purpose of addressing the research
questions. The findings provided direction for the conduct of the individual
paramedic interviews and the questions that were posed to the paramedic
participants.
Chapter 6 will then present the findings of the paramedic interviews as they
relate to the category, addressing first, paramedics’ knowledge of the legal principles
relevant to decision-making capacity and thereafter, the application of those
principles when responding to a patient that has refused treatment and/or transport
against advice.
Voluntary Decision
The third category, ‘voluntary decision’ was also identified in both the focus
group discussion data as well as the individual paramedic interview data.
Focus group participants in one of the three focus group discussions
expressed the view that their paramedic colleagues were ‘influencing’ patients who
had refused recommended treatment and/or transport, to change their mind and
164 Chapter 5: Overview of Findings and Initial Process Applied
provide consent. According to the focus group participants, paramedics were also
recruiting family members to assist them in this regard.
The focus group participants in each of the group discussions were not
critical of paramedics, and were of the view that influence, either directly or
indirectly, was acceptable if it averted an adverse clinical outcome for the patient.
All paramedic participants articulated a very clear understanding of the law,
which requires that a patient’s decision must be one that is made voluntarily and
without undue influence. However, half of the participants did not understand the
difference between acceptable influence and undue influence. The remaining half of
the participants consciously avoided making statements that would result in a patient
making a decision that was inconsistent with his or her wishes.
The findings of this category are presented in Chapter 7. The Chapter will
begin with a presentation of the findings of the focus group discussions as they relate
to ‘voluntariness and paramedic influence’. Again, the focus group findings are not
considered for the purpose of addressing the research questions. The findings
provided direction for the conduct of the individual paramedic interviews and framed
questions that were subsequently posed to the paramedic participants.
Chapter 7 then presents the findings of the paramedic interviews as they
relate to the category, addressing first, paramedics’ knowledge of the law relating to
voluntariness and their understanding of undue influence as it relates to their own
conduct, and the conduct of others. Paramedic practice and their compliance with
the law when responding to a patient’s decision to refuse treatment and/or transport,
is then explored.
Providing Information
Paramedics attach a great deal of significance to what they perceive as a
requirement to provide detailed information to a patient who has refused paramedic
treatment and/or transport. It is this perceived requirement that no doubt contributed
to ‘provision of information’ emerging as the fourth common category that is
grounded in both the focus group discussion data, and the individual paramedic
interview data.
Focus group participants were critical of the manner in which paramedics
communicated health information to patients, stating that they were too vague, too
Chapter 5: Overview of Findings and Initial Process Applied 165
technical, and used medical terms and acronyms not commonly understood outside
of the health professions. The focus group participants attributed this ineffective
communication to inexperience. However, this thesis will demonstrate that
paramedics sought to communicate information in a manner that was tailored to suit
individual patient needs and presented in such a way that the patient was capable of
understanding.
The findings of this category are presented in Chapter 8. The chapter first
presents the findings of the focus group discussions as they relate to the provision of
information to patients, which is then followed by the findings of the paramedic
interviews which identifies why paramedics provide patient information, what they
provide and how their actions in this regard relate to their knowledge and compliance
with the law that regulations patient decision-making and decisions to refuse.
5.5 FINDINGS - IDENTIFYING A TRUE REFUSAL
Whilst one may consider that the difference between a case involving a refusal
of treatment and/or transport against paramedic advice (refusal against advice) and
one in which the paramedic determines that ambulance transport to a hospital or
health facility is not clinically warranted (transport not required), would be
abundantly clear, focus group participants were resolute that there was a ‘blurred
line’, at least in the eyes of the attending paramedics, between cases in which the
patient did not require transportation to hospital, and those that expressly refused it.
There seems to be a blurred line between refusal of transport and not
requiring transport; when a VIRCA needs to be put into play. … that is
probably the common thing that we are seeing with staff. For some reason
there is a blurred line as to a patient who does not require (transportation to)
hospital, and a refusal to go to hospital. FG001.3
Focus group participants stated that they identified, during the course of
conducting clinical audits of cases coded as ‘refusal against advice’, that some cases
clearly did not involve a refusal, rather a situation where both the paramedic and the
patient ultimately agreed upon a course of action that did not include paramedic
treatment or transport to a hospital. The alternative course may, for example, include
a visit to the patient’s family doctor either on that day or the day immediately
166 Chapter 5: Overview of Findings and Initial Process Applied
following the paramedic’s attendance, or transportation to a health facility by private
means at a later time.
Participants in one of the three focus groups537 suggested that paramedics
attending a patient suffering from what they considered to be a non-urgent medical
condition may, following a thorough assessment, determine that ambulance
transportation and hospital-based medical management were not warranted. The
paramedic would provide the patient with information that included details of the
clinical assessment findings and the patient would, after due consideration of the
information that had been provided, decline to accompany the paramedics.
Focus group participants were concerned about how this information was
communicated to patients, and whether the content and/or tone of the communication
could unduly influence a patient to reach a decision that may not necessarily reflect
the patient’s preferred outcome in relation to the paramedic attendance. Participants
were also concerned that paramedics would couch this information in such a way that
the decision regarding treatment and transport was left entirely to the patient, without
any recommendations or meaningful professional opinion being offered by the
paramedic. The fact that the paramedic may advise the patient that they would
nevertheless be happy to take them to hospital if they (the patient) would like them to
do so, did not, in the opinion of the participants, constitute a recommendation.
Some paramedics will talk to a patient in such a way that (results) in them
saying ‘well maybe I don’t need to go’.... and then (the paramedic) says: ‘but
we are willing to take you if you want to go’. They then write it up as a
refusal. FG001.3
Focus group participants were adamant that the situation described above, did
not constitute a refusal of transport against paramedic advice.538 Participants were
also united in their view that making a statement such as: ‘we are willing to take you
if YOU would like to go’, did not alter the situation and furthermore, did not
vindicate the paramedic if the patient was to suffer an adverse outcome that should
537 FG001.3 538 A view that is consistent with that of Coroner Byrne in the Inquest into the Death of Stacey Louise
Yean. In that case, Coroner Byrne stated that it was not unreasonable for a paramedic to advise a
patient of factors that may be relevant to the patient’s decision-making and that the more appropriate
interpretation of the patient’s decision thereafter, would be that they ‘declined’ rather than ‘refused’.
Inquest into the Death of Stacey Louise Yean (unrep. Coroner’s Court of Victoria, Coroner Byrne, 23
March 2017) [65].
Chapter 5: Overview of Findings and Initial Process Applied 167
have been anticipated by the paramedic, and could have been avoided, if the
paramedic had provided the patient with accurate information, recommended
transportation, and the patient was subsequently transported to hospital.
The paramedic must take on the responsibility (of any adverse
consequences). (They) are more or less saying to the patient, I don’t think
you’re sick enough; I am not (recommending) that you go with me…... just
willing to take you if you want to go. FG001.3
This situation was considered by the Coroner’s Court of Victoria in the 2017
Inquest into the death of Stacey Yean.539 Paramedics attended Ms Yean, a 23-year-
old with a history of asthma, who had developed severe abdominal pain and
vomiting against a backdrop of a suspected chest infection. A clinical assessment
was conducted and Ms Yean’s vital signs were recorded to be within normal limits.
The senior paramedic in attendance advised Ms Yean that it was likely that she
was suffering a “gastric bug” and that her condition did not mandate transport to
hospital. Nevertheless, the paramedic maintained that she told Ms Yean that if she
wished, she and her colleague could transport her to hospital for assessment, but
indicated that there may be some delay as she and her partner had observed
ambulances “ramped up” when they were at the hospital earlier that day. Ms Yean
ultimately declined the offer of transportation, preferring to remain at home. Ms
Yean died later that night. A cause of death could not be determined.
In his findings, Coroner Bryne differentiated between two very distinct
situations, one in which there is a patient “refusal” of transport against paramedic
advice, the other in which the patient “declines” an offer of transport that the
paramedics were happy to facilitate, should the patient so desire, and equally happy
for the patient to decline and remain at home. Coroner Bryne drew the distinction
between the two, in the follow passage:540
I find the interpretation put on the issue of transportation by both parties;
Ambulance Victoria and the family, interesting. (The paramedic) states Ms
Yean “refused” the offer of transportation. I would have thought a more
appropriate interpretation would be “declined” rather than “refused.” The
539 See Coronial Inquest into the Death with inquest of Stacey Louise Yean (Coroner's Court of
Victoria, Coroner Byrne SM, 23 March 2017) [66]. 540 Ibid [65]-[67].
168 Chapter 5: Overview of Findings and Initial Process Applied
family maintain Ms Yean was “talked out” of going to hospital; both
interpretations are, in my view, strained.
I do not consider it unreasonable for a paramedic to advise a patient there
may well be significant delay in being seen at an Emergency Department,
particularly if the paramedic has observed ambulances “ramped” earlier in
the day. The decision taken, while no doubt influenced by the prospect of a
significant delay, ultimately was taken by Ms Yean. I do not accept that she
was refused transport to hospital. The bottom line is, the offer of
transportation was made, but declined.
A number of the individual paramedic participants that were interviewed as
part of this research also articulated views in relation to this issue, confirming that
there was some confusion between a case involving a ‘refusal against advice’ and
one in which the paramedic determined, or at least accepted that ‘transport not
required’.
Some of the paramedic participants were adamant that their colleagues were
not confused, rather they were intentionally misrepresenting the nature of a case
when completing the patient record. The reason offered was that the paramedic was
attempting to avoid the scrutiny associated with a case in which they decide that
ambulance services are not warranted.
I think people misuse the VIRCA ….. you hear them talking about cases and
I'm like, they didn't refuse transport; you didn't transport them, so that's not a
VIRCA, they have to have refused and (in circumstances where) you wanted
them transported. So people misuse that to cover their arses essentially. So,
it's being misused and I think there's a misunderstanding about that because I
think people are afraid to take ownership of their decision to not transport
people (to hospital). PP23
Focus group participants offered two possible explanations as to why their
paramedic colleagues would record a case as a ‘refusal against advice’ when it
clearly was not. One possible explanation was lack of the paramedic’s knowledge
and understanding of what constituted a genuine refusal of services. Participants
were of the view that paramedics lacked a clear understanding of the difference
between the two scenarios, especially those paramedics who were relatively new
graduates and had not had the benefit of extensive clinical experience.
Chapter 5: Overview of Findings and Initial Process Applied 169
Participants were also of the view that the lack of knowledge was further
compounded by what they described as ‘limited options’ available to paramedics
when coding the outcome of a case, leaving the paramedic to identify which of the
available options more closely reflected the circumstances of the case. Participants
explained that the patient record allowed the paramedic to code only one of two
possible case outcomes when ambulance transportation was not provided, those
being, refusal of transport against advice, or transport not required. Participants
suggested that a third option should be available that reflected a situation whereby a
patient would prefer not to be transported to a hospital or health care facility unless
of course it was clearly warranted, and the attending paramedic was not strongly
opposed to an outcome that involved no ambulance transportation, and furthermore,
did not make any recommendations with respect to the need for immediate
assessment at a health care facility.
There are only two options on the eARF: patient refused; and transport not
required. Although they are the two main options, sometimes (the case) falls
in between….. they might go later, or there might be more to it than just
refused. FG003.3
Perhaps this third option would capture circumstances identified by Coroner
Bryne in the Inquest into the death of Stacey Louise Yean, where the patient did not
refuse transport against advice, nor was she refused ambulance services, but one in
which the paramedics did not recommend, but rather, offered ambulance transport
services to a hospital, should the patient so choose to accept them, and she declined.
The second explanation offered by participants for the possible incorrect
coding of cases in which no ambulance transport was provided, was that the
paramedic could be deliberately deflecting attention away from a case in which they
did not believe that ambulance services were required. Participants suggested that
the paramedic may be concerned that such a case did not meet the strict procedural
requirement for one in which the paramedic is authorised to make such a decision,541
and coding the case as a refusal of transport against the paramedic’s advice, would be
541 Queensland Health (Queensland Ambulance Service), Non QAS Transportation: Paramedic
Decision – transportation not required, April 2017<
https://www.ambulance.qld.gov.au/clinical.html> at 4 June 2017.
170 Chapter 5: Overview of Findings and Initial Process Applied
less likely to attract the attention and subsequent review of the case by the
paramedic’s supervisor.
The paramedics are concerned about (the case) and for want of a better term,
(they are) arse-covering; (they) do the VIRCA … (and record) refused
against my advice as opposed to saying that hospital is not the best place for
(the patient). FG003.3
I do find some paramedics use the VIRCA criteria (when) doing non-
transports to just cover their backs basically. It's a culture that has spread.
PP24
Paramedics are authorised to make decisions regarding transportation or
otherwise of the patient, and the relevant QAS practice guideline542 is very clear with
respect to the circumstances in which these decisions can be made. A decision not to
transport a patient for whom ambulance services have been requested, can only be
made in circumstances where the patient has refused transport and the refusal
constitutes a valid decision, or where the patient is found to have no obvious illness
or injury, and the paramedic assessment findings do not raise any reasonable
suspicion that an illness or injury exists. The decision can also be made in
circumstances where a patient is suffering from a condition that is minor in nature
and is unlikely to escalate or deteriorate.543
A request for ambulance assistance in Queensland will initiate a response that
will include the dispatch of paramedics and other resources that are deemed
necessary in the circumstances.544 If paramedic treatment and/or transport are not
provided, the paramedic is required to accurately record the reasons why this did not
occur.545 The paramedic is also required to select a code that best reflects the nature
of the case.546
542 Ibid. 543 Ibid 312. 544 The necessary resources are determined having regard for the circumstances and guided by the
Standard Operating Procedures. State of Queensland (Queensland Ambulance Service) State
Operations Centre Standard Operating Procedure, Dispatch – QAS Response Priorities SOP02.1,
March 2019. 545 Guidelines for the completion of clinical documentation are provided in the State of Queensland
(Queensland Ambulance Service), Clinical Practice Manual (2019)
<http://www.ambulance.qld.gov.au/clinical.html> at 15 May 201. 546 Ibid.
Chapter 5: Overview of Findings and Initial Process Applied 171
A ‘patient refusal against advice’ involves a situation in which the attending
paramedic, after due consideration of the clinical assessment findings and
circumstances resulting in the request for ambulance assistance, strongly
recommends a course of action that may involve specific paramedic treatment and/or
ambulance transport to hospital. The patient categorically refuses and does so
contrary to the advice of the paramedic.
A ‘patient refusal’ must not be confused with a situation in which the
paramedic determines that the patient does not require treatment or transport. That
would amount to ‘transport not required’.547 Nor should it be confused with a
situation in which the paramedic provides the patient with a range of options that
would be appropriate, including the option of transportation to hospital for further
assessment, should the patient so choose. The patient ultimately considers the
information that the paramedic has provided and selects one or more of the options
available.
If, as is suggested, paramedics have been coding cases incorrectly, this would
significantly impact upon the accuracy of the data that the QAS collates, at least in
respect of cases involving patients for whom ambulance services are requested, and
no ambulance transportation is subsequently provided.
The scope of this research project does not extend to include an examination of
the accuracy of paramedic coding practices. Further research into this area is
recommended.
5.6 FINDINGS - INITIAL PROCESS APPLIED
The paramedics who participated in this study displayed a clear understanding
of a patient’s right to decide whether to accept or reject paramedic treatment and
transport and that the right to do so is supported by the law.548 Furthermore, they
acknowledge paramedics are required to respect the patient’s decision, irrespective of
the potential clinical consequences that may arise.549
547 See findings Coronial Inquest into the Death of Marshall Yantarrnga [2005] NTMC 012. 548 Participants acknowledged that this right is founded in the law but did not expand upon that. Some
participants referred to ‘autonomy’ and linked the principle of autonomy to the legal right to decide
but did not expand beyond the reference, nor were they asked to do so. 549 Over two thirds of the participants that were interviewed (24 of 30), specifically referred to the
patient’s legal right to decide and their obligation to respect that right.
172 Chapter 5: Overview of Findings and Initial Process Applied
You can’t deprive (patients) of their liberty. (They) have a right to decide
what they want to do with their life. The law requires that I have to respect
their right…. Even if they are going to die, that’s still their choice. (PP14)
Paramedics don’t necessarily agree, from a clinical perspective, with the
patient’s decision to refuse treatment and/or transport, and in most cases involving a
patient refusal, are less than comfortable with respecting their decision. The majority
of participants openly stated that these decisions were made against their advice and
contrary to what they considered to be in the patient’s best clinical interests.
Notwithstanding, they repeatedly acknowledged that it is the patient’s choice and one
with which they must abide, albeit reluctantly.
Different people make different choices and while someone can say, well
that’s not the right choice ….. that is not what we are there to do. We’re
there to offer people our services and information …. they’re adults and they
can make their own choices. (PP02)
I don’t agree with it, but I don’t have any other means or method to do
anything about it. At the end of the day, we are there for the patient, so I
have to respect that. (PP03)
From the moment the paramedics arrive at the scene of an incident, they are
meticulously conducting assessments and implementing management strategies and
seek to do so in a timely and organised manner.
According to the participants, the typical assessments that they undertake
include that of the surrounding environment and the hazards it may present, both for
their patient and themselves; clinical assessments of the patient or patients in
circumstances where there may be more than one person in need of paramedic care;
and identification of witnesses, family or support persons who may be able to
provide vital information regarding the events that resulted in the request for
paramedic assistance.550 Participants were also mindful of the need to obtain consent
for the various assessments they may undertake and services they may provide, and
from the time they arrive at the scene, they are evaluating the decision-making
550 These assessments are also set out in the QAS procedural guidelines. See State of Queensland
(Queensland Ambulance Service), Primary and Secondary Survey, October 2016
<http://www.ambulance.qld.gov.au/clinical.html> at 15 May 2019.
Chapter 5: Overview of Findings and Initial Process Applied 173
capacity of the patient and identifying potential substitute decision-makers should
they be required.
The first thing I look at is the scene findings. You have to try and do these
assessments concurrently while you're doing other things. (PP25)
I take everything into consideration … vital sign survey, the clinical picture,
what’s happening, who is here, what is said, what has not been said and
obviously, my determination of whether the patient is aware of what is
happening and whether they understand the situation ….. I put a picture
together. (PP3)
As soon as you walk in the door you're thinking about it (capacity); when
you're just starting to converse with people, before you even get to questions
(relevant to the clinical assessment). I think you're starting to think about
whether the person is speaking with me logically, if they seem to be aware of
who we are - what environment they are (in), why we (the paramedics) are
there. (PP7)
The QAS clinical practice guidelines that were discussed earlier in this chapter,
provide paramedics with a systematic approach to the many complex and challenging
situations they may encounter.551 The guideline, Patient Refusal of Treatment or
Transport,552 and the algorithm that is captured in the acronym ‘VIRCA’, was cited
by twenty-six of the thirty participants interviewed. Each letter of the acronym
represents a factor that the paramedic is required to consider, or task that must be
undertaken in order to reach a conclusion regarding the patient’s ability to make
551 See discussion in section 5.3 of the Chapter. State of Queensland (Queensland Ambulance
Service), Clinical Practice Manual (2019) <http://www.ambulance.qld.gov.au/clinical.html> at 15
May 2019. 552 State of Queensland (Queensland Ambulance Service), Patient Refusal of Treatment or Transport,
October 2017< https://www.ambulance.qld.gov.au/clinical.html> at 4 June 2017, 196. The guideline
was first introduced in 1995 following the death of a young woman at Southport on 15 December
1994. The woman had refused recommended paramedic treatment and transport and later died at the
Southport Police Station. The Southport Coroner, Mr Herlihy SM examined the guideline during the
course of the inquest into the death of Christine Lee Egan (26 & 27 August, 1996) and concluded that
the paramedics had acted reasonably in reaching a conclusion that Miss Egan had provided a valid
refusal for which they were obliged to respect. The inquest pre-dated the public recording of inquest
findings.
174 Chapter 5: Overview of Findings and Initial Process Applied
decisions regarding the paramedic treatment and/or ambulance transport that have
been recommended.553
The twenty-six participants that referred to the ‘VIRCA’ acronym described
how each step guided the process that they implemented when managing a situation
involving a patient refusal. Participants were of the belief that the guideline reflected
the law, and as such, their practice was consistent with the law. A snapshot of
responses provided from participants appear below:
When I am faced with (a refusal) I think about the VIRCA acronym and I go
through those processes. (PP05)
You work through the VIRCA, you work through the steps, you make sure
that they understand, they have capacity, it's voluntary, preferably get a
witness there. (PP14)
The VIRCA is very simple in the fact that it follows a step-by-step process
but it's just how you go about getting the information for it. (PP04)
VIRCA… We have to follow that, so somebody has to be in what we
consider to be a frame of mind where it's obvious that they know what
they're saying no to, so we have to inform them. Worst case scenario, you
could die if you don't come with us and they have to say, I acknowledge that
and I'm still refusing based on that. It has to be voluntary, we can't - no one
can coerce them into saying no you're not going to hospital and then they're
like oh okay. So they have to do it of their own free will. It has to be
informed, like I said, they have to know the consequences. (PP02)
Literally, I'll go through the VIRCA acronym in my head, and I'll say right I
understand you're making this refusal voluntarily, you've been given all (the
information) you might say without coercion or what have you, depending
on the person's understanding. (PP06)
The four participants who did not refer to the VIRCA acronym, or specifically
mention the QAS guidelines during the course of the interview, described a process
that they each adopted when responding to a patient who refused recommended
553 See discussion in section 5.3 above for a fulsome explanation of the VIRCA acronym.
Chapter 5: Overview of Findings and Initial Process Applied 175
treatment and transport. The process involved consideration of the patient’s
decision-making capacity, providing the patient with information about their
condition and potential risks, and determining if the patient may have been
influenced by a third party during the decision-making process.
It was noted earlier in this Chapter, in section 5.3 that the QAS guideline,
Patient Refusal of Treatment or Transport,554 is not consistent with the law that
regulates contemporaneous decisions to refuse. The guideline refers to four elements
that must be satisfied for a contemporaneous decision to be deemed lawfully valid.
The first element is that the patient’s decision must be provided voluntarily; the
second element requires the patient to be informed of the consequences and risks
associated with the decision; the third element requires that the decision relate to the
treatment or transport that is recommended; and the final element requires that the
patient have the requisite decision-making capacity.
However, there are only two requirements for a contemporaneous decision to
refuse paramedic treatment to be deemed to be valid under the common law.555 The
first requirement is that the person is competent or has the requisite decision-making
to make the decision at hand.556 The second requirement is that the decision is made
voluntarily, free from coercion or undue influence, and is not made on the basis of
false or misleading information.557
Although the guideline is inconsistent with the law, the participants who
complied with the guideline would not be in breach of the law. They would still be
considering the voluntariness of the patient’s decision and evaluating the patient’s
decision-making capacity. Providing information to the patient would not be in
conflict with the law, the only conflict that could arise would be if the paramedic
deemed a patient’s decision to be invalid for reason that the patient did not receive
information about the consequences and risks associated with their decision.558 And
seeking clarification that the patient’s refusal relates to the treatment and/or transport
554 State of Queensland (Queensland Ambulance Service), Patient Refusal of Treatment or Transport,
October 2017< https://www.ambulance.qld.gov.au/clinical.html> at 4 June 2017, 196 555 See discussion in Chapter 3, section 3.4. 556 Re B (Adult: Refusal of Medical Treatment) [2002] 2 All ER 449. 557 Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649. 558 Hunter and New England Area Health Service v A (2009) 74 NSWLR 88, [28]. There is a division
of opinion regarding the provision of information. See discussion in Chapter 3 of this thesis, section
3.5.
176 Chapter 5: Overview of Findings and Initial Process Applied
that the paramedic has recommended is wise, and would certainly not be inconsistent
with the law.
5.7 SUMMARY
This chapter has introduced the findings of the qualitative component of this
research and has presented the common categories that were grounded in the data
obtained from both the focus group discussions and the individual paramedic
interviews.
The chapter first presented details regarding the education and professional
development of paramedics in Queensland, and the relevant QAS procedural
guidelines that provide direction for QAS paramedics when responding to a patient
that refuses treatment and/or transport. This information provides further context to
the findings regarding paramedic knowledge and application of the law and enables
meaningful recommendations to be made for paramedic education that specifically
targets identified discrepancies, and recommendations for employer based guidelines
that will guide paramedic practice and promote paramedic decision-making within
the regulatory framework.
The chapter then introduced the categories that were grounded in the focus
group discussion data as they related to the research questions: identifying a true
refusal; assessing decision-making capacity; influencing patient decisions; and
providing information that is capable of being understood.
The purpose of the focus group discussions, and the information provided in
that forum, was to provide insight into the research topic, direction for the conduct of
the paramedic interviews, and assistance framing interview questions subsequently
posed to paramedic participants.
In the first instance, focus group participants raised doubt as to whether
paramedics understood and could correctly ‘identify a true refusal’, postulating that
many of the cases recorded in the QAS database as such, did not involve a refusal
against paramedic advice. This factor was explored from the perspective of
paramedic knowledge and ability to identify a patient-initiated decision to refuse
against advice, as opposed to one in which the patient declined offers of treatment
and/or transport, the latter being a decision that was not inconsistent with the views
of the paramedic regarding clinical management options. Whilst there was some
Chapter 5: Overview of Findings and Initial Process Applied 177
support from individual paramedic participants that would suggest a possible
knowledge deficiency in the broader paramedic population as it relates to this issue,
the findings suggest that documentation and coding errors were more likely. It is not
possible to examine this issue further in this thesis and a recommendation for further
research has been made.
Focus group participants also identified what they considered to be
shortcomings in paramedic knowledge and application of the law when responding to
a patient that has refused treatment and/or transport against advice. The remaining
categories attributed to the focus group participants related to these shortcomings and
are addressed in later chapters: assessment of the patient’s decision-making capacity
(Chapter 6); influencing patient decisions (Chapter 7); and providing information to
the patient that is capable of being understood (Chapter 8).
The four categories that were grounded in the individual paramedic interview
data were then introduced: They are: initial process applied; assessing decision-
making capacity; assessing/determining a voluntary decision; and providing
information.
The first of these four categories ‘initial process applied’ captured information
regarding how participants initially responded to a patient when informed of the
patient’s decision to refuse recommended paramedic treatment and/or transport.
All participants displayed a clear understanding of a patient’s right to decide
whether to accept or reject paramedic treatment and transport and that the right to do
so is supported by the law. Furthermore, they acknowledged that paramedics are
required to respect the patient’s decision, irrespective of the potential clinical
consequences that may arise.
Participant’s initial response to a patient who refused treatment and/or transport
was to determine the validity of that decision. It was clear that the participants made
every effort to conduct a thorough and systematic assessment on every patient, and
were only limited in doing so, by circumstances that were largely beyond their
control, such as a patient who was uncooperative and refused to answer questions
posed by the paramedic, or was abusive and possibly even aggressive towards the
paramedic or others at the scene.
178 Chapter 5: Overview of Findings and Initial Process Applied
The process that participants adopted was overwhelmingly influenced by the
employer guidelines and the acronym ‘VIRCA’ that is set out in the guideline. The
participants considered the voluntariness of the patient’s decision (V); provided the
patient with information regarding their condition and risks (I); to some degree
confirmed that the decision to refuse related to the treatment and/or transport that
was proposed (R); and ascertained if the patient had the requisite decision-making
capacity to make the decision (C).
The guideline, which was said to identify four elements of a valid refusal, was
found to be inconsistent with the law regarding the requirements of a valid
contemporaneous decision to refuse, which requires only two elements be satisfied.
Whilst the process adopted by participants largely adhered to the guideline, this did
not result in participants acting in a manner that was inconsistent with the law.
Participants still considered the voluntariness of the patient’s decision to refuse, and
devoted considerable attention to the assessment of the patient’s decision-making
capacity.
The remaining categories were introduced in this chapter and the findings that
relate to each category are presented in following chapters: assessing decision
making capacity (Chapter 6); voluntary decisions (Chapter 7); and providing
information (Chapter 8).
Chapter 6: Decision-Making Capacity 179
Chapter 6: Decision-Making Capacity
6.1 INTRODUCTION
In circumstances where a patient refuses to provide consent for recommended
paramedic treatment and/or ambulance transport, the question that is uppermost in
the mind of the attending paramedic, is whether the patient has the requisite capacity
to make that decision. It was this factor that was unanimous in the responses
provided by the paramedic participants who were interviewed in this study, resulting
in the category ‘assessing decision-making capacity’, which was introduced in
Chapter 5.
Earlier, in Chapter 3 of this thesis, it was noted that a person has capacity if
they are capable of understanding the nature and purpose of the treatment that has
been proposed, and the consequences or risks associated with their decision, be it to
consent to the treatment, reject it, or choose one rather than another of the treatments
that may be available.559
As challenging as it may be to assess decision-making capacity in the pre-
hospital setting, it is a necessary and implicit component of every encounter between
a paramedic and the patient they are attending. Decisions about capacity are
ultimately legal decisions, however, it is the paramedic in the pre-hospital setting
who is responsible for making decisions regarding a patient’s capacity to decide on
matters relating to their immediate health needs.560 It is therefore necessary that
paramedics understand the law regarding decision-making capacity, and correctly
apply that law when making decisions regarding a patient’s capacity to refuse.
This chapter presents the findings of this research as it relates to paramedics’
knowledge and understanding of the legal requirement of decision-making capacity,
and how they apply their knowledge when turning their mind to the question of
whether or not a patient has the requisite capacity to refuse the treatment and/or
transport that has been recommended.
559 Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649. See discussion in s 3.4.1. 560 Queensland Law Reform Commission, ‘A Review of Queensland's Guardianship Laws' (2010)
Report No 67, (7.258); Stewart et al, above n 287.
180 Chapter 6: Decision-Making Capacity
The chapter will first present, in section 6.2, the perspectives of the focus group
participants as they relate to the category ‘decision-making capacity’. Again, these
findings were considered for the purpose of providing direction for the conducting of
the semi-structured interviews with individual paramedic participants, and framing
questions relevant to the research questions.
In section 6.3, the findings of the individual paramedic interviews as they relate
to this category are presented. In this section, participants’ knowledge of the two
relevant principles, ‘presumption of capacity’ and ‘gravity of risk’ are explored, as
are details of participants’ knowledge with respect to patient ‘understanding’, and
whether or not capacity requires the ability to understand the nature of their condition
and potential risk, or the patient’s actual understanding.
The manner in which paramedics apply the law relating to decision-making
capacity is then presented in section 6.4. The principles, ‘presumption of capacity’
and ‘gravity of risk’ are addressed once again but in this section, the discussion shifts
to how paramedics apply these principles in practice. The section then concludes
with findings relating to the assessments that are undertaken, and factors that are
considered, by the paramedic, in order to determine if a patient has the requisite
decision-making capacity to refuse paramedic treatment and/or transport in the
circumstances.
6.2 FOCUS GROUP PERSPECTIVES – PARAMEDIC KNOWLEDGE AND
APPLICATION OF THE LAW
Focus group participants were critical of their paramedic colleagues, both in
terms of their knowledge of the law concerning decision-making capacity in the
context of decisions about treatment and transport, and the process they applied in
order to ultimately reach a conclusion that the patient had the requisite capacity to
make the decision that they were purporting to make. The major criticisms, of which
there were two, related to the actual assessment of decision-making capacity, and the
factors that paramedics relied upon when determining the patient’s ability to
understand the nature and consequences of the decision.
First, the participants considered that paramedics failed to have sufficient
regard for the seriousness of the patient’s condition and the clinical risks involved,
when turning their mind to the question of decision-making capacity. According to
Chapter 6: Decision-Making Capacity 181
the participants, the clinical risk is certainly assessed by paramedics, however the
findings of that assessment are not, in their opinion, used to determine the level of
decision-making that would be commensurate with the level of clinical risk.561 In this
regard, paramedics, according to the participants, demonstrate a poor understanding
of the law relating to decision-making capacity and how the gravity of risk principle
should be applied in practice when assessing capacity.
Focus group participants were correct, there is no sharp dichotomy between
capacity and no capacity, rather 'a scale running from capacity at one end through
reduced capacity to lack of capacity at the other' and that the determination of
whether or not a person has capacity to make a decision, necessarily requires
consideration of the importance, and potential consequences of that decision, or, as
the focus group participants describe it, the ‘level of risk’.562
A lot of (paramedics) just think you've either got capacity or not; it's not a
sliding scale in relation to the seriousness of the presenting condition.
FG003.
When I read these eARFs (I find) they haven't really considered if there is a
high level of risk when considering level of understanding. FG001.3
The second area of criticism related to the actual assessment of decision-
making capacity. Focus group participants considered that paramedics placed too
much emphasis on the findings of a patient’s neurological assessment when deciding
decision-making capacity, and that there was insufficient regard for whether or not
the patient understood or was capable of understanding the consequences of the
decision that they were making.563
The neurological assessment of a patient forms part of the overall clinical
assessment that the paramedic conducts.564 Focus group participants identified one
facet of the neurological assessment, the Glasgow Coma Scale (GCS) score, which
561 FG001 and FG002. 562 See discussion regarding ‘gravity of risk’ in Chapter 3 section 3.4.1. Also, Re T (Adult: Refusal of
Medical Treatment) [1992] 4 All ER 649, 661; Re B (Adult: Refusal of medical treatment [2002] 2 All
ER 449, 472; Hunter and New England Area Health Service v A (2009) 74 NSWLR 88, [24]. 563 Participants in each of the three focus group discussions expressed opinions in this regard. 564 Queensland Health (Queensland Ambulance Service), Clinical Practice Manual: ‘Assessment /
Primary and Secondary Surveys’ (2016) <http://www.ambulance.qld.gov.au/clinical.html> at 15 April
2018.
182 Chapter 6: Decision-Making Capacity
they claim paramedics use to guide their clinical decision-making with respect to
whether or not the patient has the requisite decision-making capacity or the ability to
understand the nature and consequences of the decision they are making.
That GCS is a 15-point assessment tool that is universally accepted as a means
of determining a person’s conscious state when examined across three assessment
categories: eye opening, verbal response and motor response. A numerical score is
allocated to reflect the outcome or level of clinical response in each category, and the
sum of the three categories gives the overall GSC.565 A perfect score of 15 would
indicate that the person opens his or her eye spontaneously, is fully orientated,566and
obeys commands with respect to movement or motor function.567
A (paramedic) believes that a GCS of 15 denotes capacity and I don't always
agree with that when I read their eARFs. It's not so much; yes they were
conscious and alert, ….but that doesn't mean that they actually had capacity.
FG001.3
When assessing capacity it's not just about GCS, it's about whether the
patient understands what you're saying, whether the patient believes what
you're saying and understands that it's being provided with full information
so that they are able to make the decision…..they need to understand the
consequences of the refusal. That's not really got anything to do with having
a GCS of 15. They might have a GCS of 15, and they might be as alert as
you or I, but (they may not have) the capacity to refuse or accept treatment at
that time. FG001.3
There are some paramedics that will just say okay, as long as their level of
consciousness or their GCS is above 15, they're not under the influence of
any drugs and alcohol, and they're left in the care of another adult, it is
basically enough. Tick, tick, tick, they've got capacity. FG002.3
565 Matt Johnson, ‘The Paramedic’s Clinical Approach’ in Matt Johnson, Leanne Boyd, Hugh
Grantham, and Kathryn Eastwood (eds), Paramedic Principles and Practice ANZ: A clinical
reasoning approach (Elsevier, Chatswood: 2015) 37-39. 566 Orientation usually includes: knowledge of their name; the day and/or date; and their current
location. 567 Queensland Health (Queensland Ambulance Service), Clinical Practice Manual:
‘Assessment/Glasgow Coma Scale’ (2016) <http://www.ambulance.qld.gov.au/clinical.html> at 15
April 2018.
Chapter 6: Decision-Making Capacity 183
Capacity for some paramedics is reliant on a GCS, which is a trauma score
for a head injury…. they equate GCS to capacity. FG001.3
Far too often they use GCS as a level of capacity. FG001.3
The concerns expressed by focus group participants in relation to paramedic
knowledge and application of the law regarding decision-making capacity, were
explored during the individual paramedic interviews, the finding of which are
reported below.
6.3 PARAMEDIC KNOWLEDGE OF THE LAW
When questioned regarding their knowledge of the law and decision-making
capacity, all thirty paramedic participants acknowledged that capacity involved
‘understanding’, and more specifically, the patient’s understanding of the nature of
their condition or suspected condition, and the potential risks associated with their
decision to reject the paramedic treatment or ambulance transport that has been
recommended.
Participants did not refer to the definition of capacity that is provided in both
the Powers of Attorney Act 1998 (Qld)568 and the Guardianship and Administration
Act 2000 (Qld),569 or common law definitions from various cases. This is not
surprising, as participants were not asked to provide formal definitions or reference
the law, simply an explanation as to what they understood capacity to mean in the
context of a patient’s decision regarding the treatment that they had recommended.
Knowledge of the Presumption of Capacity Principle
None of the paramedic participants referred to the ‘presumption of capacity’570
or referenced the principle using that term. It was surprising that they failed to do so,
568 Powers of Attorney Act 1998 (Qld), sch.3. 569 Guardianship and Administration Act 2000 (Qld), sch 4. 570 Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649, 664; Re C (Adult: Refusal of
Treatment) [1994] 1 All ER 819, 824; Re MB (Medical Treatment) [1997] 2 FLR 426, 436; Re B
(Adult: Refusal of Medical Treatment) [2002] 2 All ER 449; HE v A Hospital NHS Trust [2003] 2FLR
408, 414-5; Hunter and New England Area Health Service v A (2009) 74 NSWLR 88 [23];
Brightwater Care Group (Inc) v Rossiter [2009] WASC 229 [23].
The presumption of capacity is discussed in more detail in Chapter 3 of this thesis. See section 3.4.2.
184 Chapter 6: Decision-Making Capacity
as the QAS guideline571 refers to the presumption of capacity and provides QAS
paramedics with both a definition of the principle,572 and a list of clinical
circumstances and medical conditions that could potentially impact on a person’s
decision-making capacity, and possibly rebut the presumption of capacity.573
Notwithstanding the lack of reference to the principle, participants were clearly
focused on identifying the presence of any clinical conditions or other circumstances
that could potentially diminish the patient’s ability to understand. Participants
collectively described these conditions as ‘red flags’, which, if found to be present,
would alert the paramedic to the possibility that the patient’s decision-making
capacity could be compromised in some way, necessitating a more fulsome
assessment to determine if that was case. In the absence of an assessment that
ultimately concluded impaired decision-making capacity, participants will not
‘assume’ impaired decision-making capacity, and will presume that the patient had
the ability to understand.
You’ve got to look for those red flags first. Red flags are just an indicator for
me to be more thorough in my questioning. The first thing I look at is the
scene findings. I know from their environment how they’re maintaining
themselves. If their house is run down; whether they’re in good health; or
they’re able to care for themselves … that is a red flag.
The second thing is I try to smell. There are various things you can smell
(such as) alcohol and poor (personal hygiene). That is another red flag.
Other factors I look for include medications. I also look at their cubital fossa
… for (evidence of) injection of drugs.
You have to try and do these assessments concurrently while you are doing
other things. … If you find any of those red flags you’ve got to be really
careful with your questioning. (PP 25)
571 State of Queensland (Queensland Ambulance Service), Clinical Practice Guideline: Patient
Decision Making in Ambulance Services (2018) <http://www.ambulance.qld.gov.au/clinical.html> at
18 May 2018. 572 The CPG states: ‘every adult is presumed to have the capacity to make decisions about health care,
unless it can be demonstrated that they don’t.’ This definition is consistent with the law as cited in
numerous cases including: Re MB (Medical Treatment) [1997] 2 FCR 514, 553; Re C (Adult: Refusal
of Treatment) [1994] 1 WLR 290, 294; Re MB (Medical Treatment) [1997] 2 FLR 426, 436; HE v A
Hospital NHS Trust [2003] 2FLR 408, 414-5; Hunter and New England Area Health Service v A
(2009) 74 NSWLR 88 [23]. See discussion in Chapter 3, section 3.4.2. 573 For example, head injury, hypoxia, medical conditions that can result in hypoxia, dementia, acute
mental illness, and severe pain.
Chapter 6: Decision-Making Capacity 185
By way of example, twenty-seven of the thirty participants identified alcohol
intoxication and/or drug toxicity as factors that would heighten their concern
regarding whether or not a patient had the requisite decision-making capacity at the
relevant time. Aggressive and uncooperative patients were also identified by
participants as falling in this category for reason that the aggression may be a
manifestation of an illness, or related to an injury, the cause of which could impact
on the person’s cognitive functioning and ultimately their decision-making
capacity.574 However, the presence of one or more of these factors did not, according
to the participants, automatically result in the paramedic concluding that the patient
was unable to make a decision to accept or reject the treatment and/or transport that
had been recommended. Participants stated that they would conduct a more fulsome
assessment of decision-making capacity before reaching this conclusion.
Alcohol is a big factor that sometimes makes capacity hard to determine.
Sometimes it’s really hard to judge. Just because someone’s got alcohol on
board doesn’t necessarily mean they can’t make decisions. (PP 18)
Obviously if (the patient) has alcohol on board, that is also a big problem
because you've got to try and make an assessment of (capacity) - obviously
you can't just assume people (lack capacity) if they are intoxicated, but it's an
indication to say that their judgement may not be at their best. (PP 25)
There's a difference between being intoxicated and being unduly intoxicated.
Anyone can be intoxicated, it doesn't mean that they're necessarily unable to
make a decision, it's whether they're unduly intoxicated and cannot (make
decisions) or be safely left to their own devices. (PP 17)
It was evident from their responses, both above and to follow later in this
chapter that participants operated from the premise that an adult patient has the
capacity to decide, unless the paramedic’s assessment is able to identify otherwise.
Whilst the participants may not have articulated knowledge of the presumption of
capacity principle in so many words, their practice in terms of their initial approach
when responding to a patient who refuses treatment or transport, evidenced an
acceptance of the position that incapacity must be demonstrated and unless or until
574 Fifteen of the thirty participants commented on this factor.
186 Chapter 6: Decision-Making Capacity
that is achieved, the patient is presumed to have the capacity to decide. In this
regard, the paramedics’ actions, which are consistent with the law,575 support a
conclusion that the paramedics have a working knowledge of the ‘presumption of
capacity’ principle.
Knowledge of Capacity - Ability to Understand or Actual Understanding?
During the early analysis of the interview data, it was identified that a number
of participants used language that would suggest that their understanding of decision-
making capacity, and the focus of their assessment thereof, was that the patient must
understand the nature of their condition and the risks or potential consequences of
their decision to refuse. An illustration of this can be seen in the following
participant comment:
I want to make sure in myself that they’re convincing me that they
understand everything that I have said …. they absolutely understand the
risks of staying at home. (I say to them) if you want to stay at home that’s
fine but you need to be able to convince me that I can leave you here safely.
I ask (them) to repeat the risks back. If they are not going to cooperate with
me, then I’m going to be convinced that they’re not competent enough. PP9
The common law576 and statutory577 definitions of capacity refer to the ability
to understand or being capable of understanding the nature and effect of the decision
at hand. The patient is not required to demonstrate actual understanding, nor is the
paramedic required to be satisfied that the patient does understand. To conclude, as
this one participant has indicated, that a patient is incompetent because a paramedic
is not ‘convinced’ that they understand, would be inconsistent with the law.
In order to test the extent to which participants understood what was required,
participants were asked to provide information about how they would determine if a
575 Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649, 661; Hunter and New England
Area Health Service v A (2009) 74 NSWLR 88 [23] McDougall cited with approval, the statement of
Butler-Sloss LJ in Re MB (Medical Treatment) [1997] 2 FLR 426, 436 that there is a presumption of
capacity, whereby an adult is ‘presumed to have the capacity to consent to or to refusal medical
treatment unless and until that presumption is rebutted’. 576 Re MB (Medical Treatment) [1997] 2 FCR 514, 553; Re C (Adult: Refusal of Treatment) [1994] 1
WLR 290, 294; Re MB (Medical Treatment) [1997] 2 FLR 426, 436; HE v A Hospital NHS Trust
[2003] 2FLR 408, 414-5; Hunter and New England Area Health Service v A (2009) 74 NSWLR 88;
Brightwater Care Group (Inc) v Rossiter [2009] WASC 229 [23]. 577 Powers of Attorney Act 1998 (Qld), sch.3; Guardianship and Administration Act 2000 (Qld), sch 4.
Chapter 6: Decision-Making Capacity 187
patient had the requisite decision-making capacity, particularly in circumstances
where the patient was unwilling to answer questions that were asked of them. One
participant expressed the view that in these circumstances, paramedics simply cannot
assess decision-making capacity:
Where the patient doesn’t want to have the conversation, you can’t really access
their capacity. P29
The majority of participants however, reflected upon individual experiences in
which they had been unable to elicit specific information from the patient to
determine whether or not they did in fact understand, yet they were able to conclude
that the patient had the ability to understand, and therefore had the capacity to make
the decision to refuse paramedic treatment and/or transport.
He appeared very intelligent….. In terms of capacity to refuse, we had
witnessed him interacting with other people on scene, witnessed him moving
around the scene. He was walking back and forth. (We) could see that he
understood what was happening, especially when police were trying to get
an alcohol reading from him. PP28
Whilst he was being difficult and not answering questions; that was his
choice. It wasn't because he was confused or didn't know what was going
on. He had a GCS (Glasgow Coma Score) of 15 and was alert to time, date
and place. He knew exactly what was going on. When (his) dad came in to
have a discussion with him, that (transpired to be) a normal discussion that
you would normally have (in similar circumstances) …. He did have the
capacity to refuse. PP27
In summary, while paramedics actively seek to obtain information that would
objectively establish that the patient does understand the nature of their condition and
the associated risks, the majority of participants did not consider that it was
necessary to confirm actual understanding in order to conclude that the patient has
the capacity to refuse. On the basis of their reflections and the conclusions that they
reached in relation to the cases that were discussed during interviews, the
overwhelming majority of participants demonstrated that they correctly understood
that decision-making capacity required that the patient was capable of understanding,
or had the ability to understand, the nature of their condition and consequences of
their decision.
188 Chapter 6: Decision-Making Capacity
Knowledge of the Gravity of Risk Principle
The determination of whether or not a person has sufficient capacity to make
the decision that is to be made, would necessarily require the paramedic consider the
potential consequences of the patient’s decision to refuse, and the adverse clinical
outcomes that may flow from that decision.578 The more serious the decision in terms
of the risk involved, the higher the level of capacity that is required. This legal
principle, which was discussed in Chapter579, is referred to as the ‘gravity of risk’.
During the individual paramedic interviews, each of the thirty participants were
asked to explain how they determined if their patient had the requisite capacity to
make the decision to refuse the treatment and/or transport that had been
recommended, and what factors were relevant to that determination. Only five of the
thirty participants expressly referred to the ‘gravity of risk’ in the context of
decision-making capacity, and correctly identified that the degree of risk ultimately
determines the requisite level of capacity.580
In each of the five cases in which the participant referred to the ‘gravity of
risk’, it was evident that an increase, or likely increase in the patient’s clinical risk
influenced these participants in other facets of their assessment and management of a
patient who had refused recommendation treatment and/or transport. In the first
instance, participants considered that they would increase the amount of time that
they would spend with the patient, and that their assessment of the patient’s decision-
making capacity would be comprehensive, detailed and repetitious.
I spend time with them (and) really try and ascertain that level of capacity.
My assessment of (the patient’s capacity) increases depending on the
severity of what (they are) going through. It has to. (PP 21)
578 Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649, 661; Re B (Adult: Refusal of
medical treatment [2002] 2 All ER 449, 472. 579 See discussion regarding ‘gravity of risk’ in Chapter 3, section 3.4.2 and relevant cases: Re MB
(Medical Treatment) [1997] 2 FCR 514, 553; Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290,
294; Re MB (Medical Treatment) [1997] 2 FLR 426, 436; HE v A Hospital NHS Trust [2003] 2FLR
408, 414-5; Hunter and New England Area Health Service v A (2009) 74 NSWLR 88; Brightwater
Care Group (Inc) v Rossiter [2009] WASC 229 [23]. Re T (Adult: Refusal of Medical Treatment)
[1992] 4 All ER 649, 661; Re B (Adult: Refusal of medical treatment [2002] 2 All ER 449, 472 where
Lord Donaldson MR summarised this requirement in the following statement: What matters is that the
doctors should consider whether at the time [the patient] had a capacity which was commensurate
with the gravity of the decision which he [or she] purported to make. The more serious the decision,
the greater the capacity required. 580 Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649, 661; Re B (Adult: Refusal of
medical treatment [2002] 2 All ER 449, 472.
Chapter 6: Decision-Making Capacity 189
If I deem someone to be…. high acuity (complex and high risk) and ... really
require medical assistance, I'm always going to go through those motions...
more substantially, and the fact that they still answer the same set of
questions, but I'm very much adamant that I'll repeat (the assessment) several
times. (PP04)
Participants also considered that the amount of information that they would
provide to the patient regarding their condition, and the depth of detail in relation to
the potential risk associated with their decision to refuse, would be increased in
circumstances where there is an increase in clinical risk.
I spend a lot more time going into detail about why they don’t want to go
and making sure that they understand the consequences of staying home.
The more high risk, the more detail (I provide). (I explain) the
pathophysiology of what’s going on with them. (PP23)
I definitely go into (more detail) with the patient who has severe risks.
(PP30)
The remaining participants, whilst they did not expressly refer to the ‘gravity
of risk’ principle by name, were clearly focused on determining with absolute
certainty, that a patient exposed to a high degree of clinical risk, was capable of
understanding their condition and the risk to which they were exposed.
Notwithstanding their understanding of this principle in a practical sense, participants
indicated that it was not always possible, or practical, to implement the principle in
cases that involved a high degree of clinical risk, especially where there was
uncertainty regarding the patient’s decision-making capacity.
In summary, only a small number of participants referred to the ‘gravity of
risk’ principle by name and articulated the relevance of the principle when
responding to a patient that refused recommended treatment and/or transport. In
each case, participants understood the principle to mean that an increase in risk
required an increase in the patient’s decision-making capacity. Participants would
respond to these situations by spending more time with the patient, providing the
patient with more detailed information regarding risks, and conducting a very
detailed assessment of the patient’s decision-making capacity.
190 Chapter 6: Decision-Making Capacity
In circumstances where there was a high degree of clinical risk and participants were
unable to assess, with certainty, the patient’s decision-making capacity, they would
presume incapacity. This is clearly inconsistent with the law and highlights an
erroneous understanding of what the law requires with respect to the ‘gravity of risk’
principle and reconciling that principle with the ‘presumption of capacity’ principle
in circumstances were incapacity cannot be clearly established.581
6.4 PARAMEDIC APPLICATION OF THE LAW - ASSESSMENT OF
DECISION-MAKING CAPACITY
Paramedics often work alone or with a single colleague or small team. They
conduct clinical assessments and deliver paramedic treatment in a variety of different
settings such as a person’s home, a public place, on the side of a highway or busy
road, on the edge of cliff face or in the middle of a paddock. They are required to
identify the nature of a person’s illness, the extent of their injuries and the level of
their decision-making capacity, and to do so promptly and without the assistance of
extensive diagnostic aids or a team of allied health professionals, both of which are
readily available in a hospital.582 Assessing a patient’s decision-making capacity,
and implementing the law relating to decision-making in circumstances where a
patient refuses to provide consent for the recommended paramedic treatment and/or
transport, can be challenging and in some cases, may not be practical, or even
possible. An examination of how paramedics apply the law and the factors that they
consider, follows.
Application of the Presumption of Capacity Principle
The ‘presumption of capacity’ principle was discussed in Chapter 3. The
findings of this thesis in relation to paramedic knowledge of the presumption of
capacity principle were presented earlier in this chapter in section 6.3.1 where it was
demonstrated through their interview responses and the descriptions they provided
regarding their management of various refusal cases, that participants practiced on
581 Re B (Adult: Refusal of medical treatment [2002] 2 All ER 449, 472; Re PVM [2002] QGAAT 1,
[40]-[41]. 582 Commonwealth of Australia, ‘Establishment of a national registration system for Australian
paramedics to improve and ensure patient and community safety’ (Senate Legal and Constitutional
Affairs Committee, May 2016)
<http://wwwlaph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affai
rs/Paramedics/Report> [2.5].
Chapter 6: Decision-Making Capacity 191
the basis that a patient is presumed to have the capacity to make decision, unless and
until the participant could establish that they did not.
Participants demonstrated a very sound awareness of the numerous medical
conditions and clinical circumstances that could potentially diminish a patient’s
decision-making capacity, and their insistence upon the need to assess a patient’s
capacity before they could conclude that the patient lacked the requisite capacity to
decide.
As noted earlier, participants referred to these conditions as ‘red flags’, aptly
named to alert the paramedic of the potential for impaired decision-making capacity
and signal the need for a focused and fulsome assessment that targeted the patient’s
understanding of the nature and effect of their condition, and the consequences of
their decision regarding treatment.
A number of participants shared experiences in which that had attended cases
that involved clinical circumstances that could result in significant impairment of a
patient’s decision-making capacity. Cases involved alcohol intoxication and drug
toxicity, head injuries, and intellectual impairment. In each case, the participant did
not assume impaired decision-making capacity, rather presumed capacity until such
time as their clinical assessment had been completed and they were able to determine
with certainty, that the patient lacked the capacity to decide.
Participants’ compliance with the ‘presumption of capacity’ principle only
faltered in circumstances involving a patient who was exposed to a significant degree
of clinical risk, and where the participant was unable to determine if the patient had
the requisite decision-making capacity to refuse recommended paramedic treatment
and/or transport. In cases involving a high degree of clinical risk coupled with
uncertainty regarding decision-making capacity, it was evident that participants were
inclined to presume incapacity, which would amount to an incorrect application of
the law.583
583 Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649, 661; Hunter and New England
Area Health Service v A (2009) 74 NSWLR 88 [23] McDougall cited with approval, the statement of
Butler-Sloss LJ in Re MB (Medical Treatment) [1997] 2 FLR 426, 436 that there is a presumption of
capacity, whereby an adult is ‘presumed to have the capacity to consent to or to refusal medical
treatment unless and until that presumption is rebutted’.
192 Chapter 6: Decision-Making Capacity
Application of the Gravity of Risk Principle
The ‘gravity of risk’ principle was discussed in Chapter 3. The findings of this
thesis in relation to paramedic knowledge of the gravity of risk principle were
presented earlier in this chapter at section 6.3.2 where it was demonstrated that only
a small number of participants referred to the ‘gravity of risk’ principle during the
paramedic interviews and correctly understood the principle to mean that in cases
were there is an increase in physical risk, an increase in the patient’s decision-
making capacity was required.
Whilst only a few participants referenced the principle during interview, all
participants sought to conduct thorough assessments, both of the patient’s clinical
status, and the patient’s decision-making capacity, and did so in all cases involving a
patient refusal in the setting of a high level of physical risk. This finding was
inconsistent with the views expressed by the focus group participants, who were of
the view that paramedics failed to have sufficient regard for the clinical risks
involved, when turning their mind to the question of the patient’s decision-making
capacity and the level of understanding required.
However, the application of the ‘gravity of risk’ principle in practice was found
to be challenging to implement. Paramedics frequently attend seriously ill and
critically injured patients where the risk associated with their condition can be
significantly high. In these cases, the paramedic would be required to consider the
level of risk to which the patient is potentially exposed, and thereafter, determine the
level of decision-making that would be commensurate with that risk.584 As a matter
of principle, this is unobjectionable however, in paramedic practice, it may be
impossible to implement.585
As was found in this study,586 in some cases, it can be difficult to determine
with absolute certainty, the level of risk to which the patient may be exposed, and
challenging in the extreme, to determine the patient’s level of decision-capacity,
584 Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649; Re B (Adult: Refusal of medical
treatment [2002] 2 All ER 449. 585 James Munby, ‘Rhetoric and Reality: The limitations of patient self-determination in contemporary
English law’ Journal of Contemporary Health Law & Policy (1997-1998) 315 <http://heinoling.org>
The author does not refer to paramedics specifically however, does refer generally to the
impracticality of implementing this principle in some circumstances, such as life-threatening or time
critical situations. 586 See discussion and case examples in section 6.3.1 in this Chapter.
Chapter 6: Decision-Making Capacity 193
especially if the patient is uncooperative or refusing to answer questions that have
been asked by the paramedic.
In these difficult cases, where there is a high degree of physical risk combined
with uncertainty with respect to the patient’s decision-making capacity, participants
were more likely than not to presume incapacity. Whilst this course of action may
avoid an untenable situation in terms of a serious risk to the life, health and safety of
the patient, it is not consistent with the law.
Assessment of Decision-Making Capacity
The views that were expressed by focus group participants regarding
paramedic assessment of patient decision-making capacity were tested, and the
results are considered here, before progressing to the findings in relation to
paramedic assessment of decision-making capacity.
Paramedics who participated in this study rejected the proposition advanced by
focus group participants, that they placed too much emphasis on the findings of a
patient’s neurological assessment, and insufficient regard for whether the patient
understood, or was capable of understanding, the nature and consequences of their
decision.
The participants provided a very different explanation as to how they
determined if a patient had the capacity to refuse recommended treatment and/or
ambulance transport. Whilst the majority of participants accepted that the findings of
the neurological assessment were certainly a relevant factor when evaluating a
patient’s capacity to make decisions, they were adamant that the neurological
assessment findings were not the sole determinate of a patient’s ability to understand.
We throw around GCS 15 a lot. I generally don’t use a GCS 15 every single
time. Obviously, that’s on our ARF reports, but its not just that they are
GCS15, because it is a lot more complicated than that… I look at them and
their medical history and what’s happening. I take everything into
consideration. (PP03)
You can do things like GCS, which tell you nothing really. It’s how they
carry themselves; how they speak to you; if they are on the ball if they can
identify and accurately pronounce their medication; they can hold an
appropriate conversation. (PP21)
194 Chapter 6: Decision-Making Capacity
Participants were united in their view that the assessment of a patient’s
decision-making capacity in the pre-hospital setting is not conducted in isolation.
The capacity to make decisions regarding recommended treatment and/or transport is
assessed concurrently with other assessments, including a clinical assessment, a
mental health status assessment if indicated and an assessment of the scene or
environment in which the patient is located.
I take everything into consideration … vital sign survey, the clinical picture,
what’s happening, who is here, what is said, what has not been said and
obviously, my determination of whether the patient is aware of what is
happening and whether they understand the situation enough …. Their
ability to have a conversation and articulate what they're thinking and they're
feeling, and that's from the start of the job. Whether they’re affected by any
drugs or alcohol? Whether they have any sort of distracting injuries or illness
that may not be making them think clearly? I put a picture together. (PP3)
The first thing I look at is the scene findings. You have to try and do these
assessments concurrently while you're doing other things. While you're
walking you've got to be looking here and there. You've got to do
everything. You've got to look for those red flags first. If you find any of
those red flags you've got to start to really be careful with your questioning
and make sure that the (patient has) capacity. (PP25)
As soon as you walk in the door, you're thinking about it (capacity); when
you're just starting to converse with people, before you even get to questions
(relevant to the clinical assessment). I think you're starting to think about
whether the person is speaking with me logically, if they seem to be aware of
who we are - what environment they are (in), why we (the paramedics) are
there. (PP7)
Participants were asked to provide details regarding how they would assess a
patient’s decision-making capacity, and what factors would influence their decision
in this regard. The responses that participants provided when asked these open-
ended questions were diverse, both in terms of the duration of the response and the
detail therein. It was evident that their understanding of decision-making capacity,
and the factors that they would consider during their assessment of a patient’s
capacity, included three dimensions. First was the patient’s ability to take in and
Chapter 6: Decision-Making Capacity 195
retain information; second, the patient’s ability to comprehend and process the
information and third, the ability to communicate their choice by whatever means
available to them.
6.4.3.1 Take in and retain information
All participants were focused on providing the patient with as much
information as possible regarding the findings of their clinical assessment, and the
condition from which they suspect the patient may be suffering, or are likely to suffer
as a consequence of that to which the patient has been exposed.587 The provision of
information in this context was simply to ensure that the patient was equipped with
relevant information upon which he or she could make the best possible decision for
him or herself. According to two participants:
At the end of the day, if you’re not informed you can’t make the best
decision for yourself. (PP1)
It allows them to understand what potentially could be going on inside their
body. (PP6)
Thereafter, each participant would endeavour to explore the patient’s
understanding of the information that had been provided, beginning with the ability
to take in and retain the information, and to comprehend the risks associated with
their condition, and the benefit of receiving paramedic treatment and other health
services in a timely manner.
In order to achieve this, participants would ask the patient to repeat the
information back to them and do so using their own words. This would enable the
participant to assess the patient’s short-term memory and their ability to retain the
information that had been provided. It would also enable the participant to assess if
the patient had processed the information, and it would assist the participant to gain
insight into the patient’s comprehension of the information and their ability to
understand the consequences of the decision to refuse.
Participants provided detailed information about the cases that they had
attended, the assessments that they had undertaken, and the findings that they
587 For example, if the patient had been involved in a high impact road traffic crash, the paramedic
would inform the patient of the potential complications that may arise due to the mechanisms of forces
that were involved.
196 Chapter 6: Decision-Making Capacity
considered when determining a patient’s decision-making capacity. The
participant’s comments are provided below, as is a short summary of select cases,
which provides context for the participant comments.
Case Example (PP23)
The participants attended a middle-aged female who was unconscious and
hypothermic. The patient had a history of Type 1 diabetes and on the evening in
question, had not been seen for several hours and had not been responding to
messages or phone calls. Her close friend, who subsequently requested ambulance
assistance, discovered the patient in a physically compromised state. Upon
examination, the participant noted that the patient was unconscious with a GCS of
seven, body temperature was recorded as 32.2 degrees Celsius, and blood glucose
level noted as ‘low’. The participant administered intravenous glucose to the patient
after which the blood glucose was recorded as 2.6 millimoles of glucose per one litre
of blood (mmol/L).
Over a period of one hour, and following the administration of further
intravenous glucose, the patient regained consciousness. The patient’s blood glucose
recordings returned to normal, and with the assistance of heat pads and blankets
applied to her body, her body temperature was rising slowly.
The participant recommended, in the strongest of terms, that the patient attend
the hospital for medical assessment and monitoring. The patient refused. The
participant was concerned for the patient’s wellbeing, stating that the hypoglycaemic
episode was one that involved profoundly low blood glucose levels, was associated
with hypothermia and furthermore, was likely to have persisted for a lengthy period
of time. He explained this to the patient and his concerns regarding the potential
risks if she was not monitored or supervised overnight. The participant determined
that the level of risk to which the patient was exposed was moderate to high, and it
was therefore necessary to determine if the patient had the requisite capacity to
refuse recommenced transport to hospital for monitoring.
I informed her that she really needs to be coming to hospital, not just
because she’s had a hypoglycaemic episode, but the fact that she’s
hypothermic … which adds another dimension. She just flat out refused.
Chapter 6: Decision-Making Capacity 197
I explained that she could have another hypoglycaemic episode and while
she was asleep, if not caught in time, have a diabetic seizure, aspirate,
suffocate, go into a coma, and die.
Her decision was valid. She clearly had capacity. Her GCS was 15 (at the
time of her refusal), she did not appear to be affected by drugs or alcohol,
was an educated person and had had this condition for a long (time). She
was able to understand, comprehend, retain and reiterate the information that
we gave her. I said (to her) that I want you to be able to tell me what’s going
on and what will happen. She said that ‘if I don’t do (as instructed), I could
go into a coma and I could die (although) I don’t believe that’s going to
happen.’ She didn’t just repeat (what I had told her), she said it using her
own words. (PP23)
The participant ultimately concluded that the patient had the capacity to refuse.
In reaching this determination, the participant applied the common law definition of
capacity, evidenced by his consideration of the patient’s ability to take in the
information that was provided to her, to retain that information, and to weigh it up
and explain to the participant, using her own words, what she understood the
information to mean, and what she was willing to accept in terms of risks. The
patient communicated: ‘if I don’t do (as instructed), I could go into a coma and I
could die’.
Case Example (PP5)
The participant attended a male patient in his early twenties who had been
‘partying hard’ over a period of 48 hours. During this period the patient had
consumed large amounts of alcohol, had taken little food and water and confessed to
having little sleep. He had fallen asleep and when he woke, he felt profoundly
unwell and was suffering from a severe headache. He called the ambulance and
requested paramedic assistance.
The participant conducted a clinical assessment, which revealed that the patient
was severely dehydrated, hypoglycaemic, febrile and that a number of his vital sign
recordings were outside the normal reference range. In view of this, the participant
recommended that the patient accompany him to the hospital for further assessment
and treatment. The patient refused.
198 Chapter 6: Decision-Making Capacity
I informed him that I didn’t know what was going on with him … I said he
could be dehydrated (from the alcohol) … could have an underlying
infection. I said … your heart rate is elevated, your temperature is elevated,
you’ve got a pounding headache … I can’t rule out that there is something
more sinister going on. I said it could be anything and it could be something
that leads to your condition worsening.
He was able to stand and walk around the room. He wasn’t of impaired gait,
so he wasn’t overly intoxicated. His mood and behaviour were not
indicative of influence of illicit drug use.
I communicated all the information to him, and he was able to repeat it back
to me in his own words … he was able to do that quite well. He understood
the risks (of refusing ambulance transport to hospital) and was
communicating well. There was nobody there to influence his decision....
He demonstrated capacity to refuse. (PP5)
This case was challenging in that the participant was unable to determine with
certainty, the level of risk to which the patient was exposed and informed the patient
of this. The patient provided consent for the participant to conduct a thorough
clinical assessment, the findings of which were conveyed to the patient. The
participant advised the patient of a range of possible risks to which he may be
exposed and recommended that a more fulsome assessment should be conducted at a
hospital, and on the basis of that, treatment options considered. Notwithstanding the
potentially serious nature of the patient’s condition, the participant correctly
identified that the patient was able to take in the information that was provided, as
inconclusive as it was, retain it, process it or ‘weigh it up’ and thereafter,
communicate his decision to refuse.588 The participant concluded that the patient had
the requisite capacity to refuse and his decision was respected.
6.4.3.2 Comprehend and process information
When making determinations regarding a patient’s decision-making capacity,
the participants were also searching for evidence that the patient was capable of
processing and comprehending information. In this regard, participants were
persuaded by the patient’s ability to interact and to engage in a conversation with the
paramedics and others at the scene.
588 Re B (Adult: Refusal of medical treatment [2002] 2 All ER 449; Re MB (Medical Treatment)
[1997] 2 FLR 426.
Chapter 6: Decision-Making Capacity 199
The most likely content of any such conversation would be the patient’s
medical history and matters that resulted in the request for paramedic assistance.
However, conversations were not limited to health matters alone, and could involve
discussions relating to a range of different topics. The topic, it seemed, was
irrelevant. The issue was that the patient was capable of holding a conversation in
which they shared information and responded to questions that arose from that
information and doing so in a logical and timely manner.
Case Example (PP1)
The patient, a gentleman in his late seventies, had suffered a traumatic blow to
the back of his head while working in his backyard shed. He did not request
paramedic assistance immediately, and only did so after he experienced headaches
and dizziness, followed by his wife locating a significant lump on the back of his
head. The participant conducted a thorough assessment and concluded that the
gentleman was most likely concussed. Ambulance transport to hospital was
recommended, which the gentleman declined.
The participant recalled that he spent over an hour with the gentleman and his
wife and during that time, they enjoyed a conversation that bridged numerous topics
including the gentleman’s hobbies, which involved tinkering in his shed and
constructing various items. They also shared a number of jokes and enjoyed some
laughter. The participant concluded that the gentleman was intelligent, capable of
interacting and having a conversation about a range of matters, quick witted and
capable of humour. He was, in the opinion of the participant, capable of
understanding the consequence of his decision to refuse ambulance transport.
We (shared) a joke. So, the fact that he was able to make jokes, interact with
me, said to me that he (understood). He was an intelligent person … he
knew the consequences and I went through it with him. He appreciated me
coming because when I left, he shook my hand and said, thank you so much
for coming. (PP1)
Other factors that were considered by the participants when assessing decision-
making capacity included their patient’s ability to express their feelings, articulate
their views, and to actively explore alternative options to that recommended by the
paramedic. Exploring options was likened to engaging in a problem-solving exercise
where the patient would search for a means by which they could address or
200 Chapter 6: Decision-Making Capacity
potentially mitigate the risk and do so without accepting the paramedic’s
recommendation that they be transported to hospital for assessment or observation.589
Case Example (PP11)
The participant was dispatched to a 63-year-old female with a history of mental
illness and suspected suicidal ideations. Following a detailed assessment, the
participant ruled out any possibility that the patient would self-harm, however, he
was concerned that she may be depressed and that she was not coping adequately.
He recommended that the patient be seen by a mental health professional at the local
hospital. The patient declined though she suggested an alternative path to that
recommended by the participant.
She was able to discuss with me that she had a good GP that she saw every
fortnight. She said that she’d mention (this episode) to him the next time
(she saw him). She was suggesting that the daughter, who lived in the area,
would come over (to her home) and chat to her. She was thinking outside
the box … suggesting alternative pathways. (PP11)
The participant concluded that the patient’s ability to think rationally and to
weigh up options to address the health care issues that he had identified indicated
that she was capable of understanding the nature and consequences of her decision.
6.4.3.3 Ability to communicate choice
A contemporaneous decision to refuse treatment requires that the patient had
the capacity to make the decision at the time and is able to communication that
decision in some way.590 The communication of the decision is a functional
requirement and from a practical perspective, necessary if the decision is to be
implemented.
A patient’s decision to refuse paramedic treatment and/or transport can be
communicated to a paramedic verbally or by any means available to the patient.
Language barriers are an obvious impediment to communication; however
589 Inquest into the death of Nola Walker (Coroner’s Court of Cairns, State Coroner Barnes SM, 23
November 2007). Paramedics in this case were persuaded by Mrs Walker’s ability to engage in a
discussion about a range of matters and to do so in a meaningful way. Coroner Barnes found that the
paramedic’s conclusion regarding the patient’s capacity to decide to refuse was reasonable. 590 Re B (Adult: Refusal of medical treatment [2002] 2 All ER 449; Re MB (Medical Treatment)
[1997] 2 FLR 426; Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290.
Chapter 6: Decision-Making Capacity 201
paramedics are resourceful in terms of identifying the means by which the patient’s
decision can be communicated in such a way that it can be accurately interpreted.
Case Example (PP 3)
The participant was attending to a patient of Chinese descent who spoke very
little English. According to the participant, the gentleman’s blood pressure
recordings and blood glucose level were both at a dangerously high level. The
participant, concerned for the gentleman’s wellbeing, recommended that the patient
be transported to a hospital emergency department for immediate medical review.
The patient refused.
The patient’s daughter, who was not present at the scene but linked in by
telephone, was able translate between the participant and the patient. During the
three-way conversation, the participant’s decision-making was influenced by the
patient’s non-verbal communication in response to both the participant’s
explanations, and the daughter’s subsequent translation of those explanations. The
participant noted the patient’s acknowledgment of specific terms and language that
he had used, leaving the participant with the view that the patient was familiar with
content of the advice provided, and that he was capable of understanding the nature
of his condition, and the consequences of refusing ambulance services. This was
subsequently confirmed by the patient’s reply to the participant as translated by his
daughter.
I take everything into consideration (in particular), their ability to have a
conversation and (communicate) what they’re thinking and feeling. I can't
remember specifically, but there were things that he did and words that he
said that (I thought) you do know what I'm talking about. It wasn't just a case
of, no no, yes yes. (I thought) maybe he has had these conversations with
his doctor at some point, because he was agreeing with me but also saying
certain words that I would think he wouldn't know unless he had had that
conversation with someone before. (PP3)
6.5 SUMMARY
This chapter has presented the findings of thirty individual paramedic
interviews as they relate to questions regarding paramedics’ knowledge of law
relating to decision-making capacity in the context of a decision to refuse paramedic
202 Chapter 6: Decision-Making Capacity
treatment and/or transport, and their application of the law when responding to a
patient’s contemporaneous decision to refuse.
Participants considered that the assessment and determination of the validity of
a patient’s decision to refuse was fundamental to their clinical decision-making, and
will ultimately direct the course of action that will be taken.591 Central to this
assessment is the patient’s capacity to make the decision at the time that it was made
and conveyed it to the paramedic.592
Participants clearly understood that decision-making capacity involved
understanding, and whilst some of the participants considered that it was necessary
for the paramedic to be satisfied that the patient actually understood the nature and
consequences of their decision to refuse, others correctly identified that capacity
amounted to the ability to understand,593 and that this ability could be demonstrated
via means other than directly questioning the patient about their understanding.594
Whilst none of the participants in the study expressly referred to the
presumption of capacity principle, this lack of reference cannot be interpreted as a
deficiency in their knowledge, or at least a deficiency in the effect of the principle in
practice. Their responses to the questions that were asked, and their explanations
regarding how they initially approached a situation in which the patient refused
treatment and/or transport, indicated that they presumed adult patients had the
capacity to make decisions, unless and until it could be demonstrated that they did
not.595
591 Participants saw this as a legal requirement but acknowledged that it was necessary, as the findings
would then guide the course of action that they were legally obliged to follow. For example, if the
patient’s decision was found to be valid, the paramedic was obliged to respect that decision. If the
decision was found to invalid for reason that the patient lacked the requisite capacity, the paramedic
was required to remain with the patient and consider management options appropriate to the
circumstances. 592 Re B (Adult: Refusal of medical treatment [2002] 2 All ER 449; Re MB (Medical Treatment)
[1997] 2 FLR 426; Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290. See discussion in
Richards, above n 214, 93. The author states that the patient’s understanding is the ‘central theme of
the investigation’. 593 Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290. 594 For example, the patient’s ability to engage in a conversation about a range of topics; to ask
questions; to seek clarification; and to respond in a meaningful and considered way. 595 Re MB (Medical Treatment) [1997] 2 FCR 514, 553; Re C (Adult: Refusal of Treatment) [1994] 1
WLR 290, 294; Re MB (Medical Treatment) [1997] 2 FLR 426, 436; HE v A Hospital NHS Trust
[2003] 2FLR 408, 414-5; Hunter and New England Area Health Service v A (2009) 74 NSWLR 88;
Brightwater Care Group (Inc) v Rossiter [2009] WASC 229 [23].
Chapter 6: Decision-Making Capacity 203
To that end, all participants identified a range of circumstances that could
potentially impact a person’s decision-making capacity, which some participants
collectively referred to as red flags. The significance of a condition or circumstance
to which they attributed a ‘red flag’, was that it would alert the paramedic to the
possibly that the patient could be suffering from impaired decision-making capacity
so that a more fulsome and focused assessment could be conducted in order to
determine if this was the case, thereby rebutting the presumption.596
The seriousness of the patient’s condition, and the degree of risk associated
with the decision to refuse treatment and/or transport, was a factor that clearly
influenced all participants in their clinical decision-making.597 However, only a
small number of the participants correctly identified that the gravity or risk involved
in a particular case dictated the level of capacity that the patient required.598 Other
participants considered that the gravity of risk, as assessed, guided their practice in
relation to the amount of time they spent with the patient, the depth of their
assessment of the patient’s capacity,599 and the amount of information that the
paramedic provided to the patient regarding their condition and the potential risks
that could arise as a consequence of their refusal.600
When turning their mind to the assessment of a patient’s decision-making
capacity, participates were guided by the QAS practice guidelines, of which there are
two that are applicable.601 Both guidelines include brief details of the relevant law
and seek to provide paramedics with a structured approach to both the assessment
and management of a patient who has refused treatment and/or transport. The
guideline, Refusal of Treatment or Transport was discovered to be inconsistent with
the law however the brief section that referred to decision-making capacity was
considered to be accurate.
596 Ibid. 597 The principle focus of their practice is to establish the risk to which the patient is exposed, the most
appropriate course of action that should be implemented, and the timeframe in which it should be
implemented. 598 Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649, 661; Re B (Adult: Refusal of
medical treatment [2002] 2 All ER 449, 472. 599 Not to determine the degree of capacity and consider if that was commensurate with the level of
risk, but to confirm that the patient had capacity as opposed to impaired capacity. 600 These participants considered that a higher degree of risk imposed a duty to provide the patient
with more detailed information regarding those risks and the potential consequences of refusing. 601 Queensland Health (Queensland Ambulance Service), Clinical Practice Manual, Guide to Patient
Decision Making in Ambulance Services, April 2017; Patient Refusal of Treatment or Transport, 2016
<https://www.ambulance.qld.gov.au/clinical.html>
204 Chapter 6: Decision-Making Capacity
The assessment of decision-making capacity, conducted by the participants,
was not conducted in isolation. The assessment formed part of a complex and
holistic patient assessment that examined clinical status, mental health status and
relevant aspects of the scene or environment in which the patient was located.
Notwithstanding the finding of the focus group discussions, that far too much
emphasis was placed on the outcome of a patient’s neurological assessment when
determining decision-making capacity, the findings from the individual paramedic
interviews concluded that no single aspect of the assessments conducted by
participants, was assigned disproportionate weight. The totality of the patient
assessment findings informed the paramedic’s decision regarding the patient’s
capacity at the time that the decision made, and the way the participants approached
both the requirement and determination of decision-making capacity, was consistent
with the law.602
One area of concern arose in circumstances where the patient was exposed to a
significant risk and the paramedic was unable to determine decision-making capacity
or prohibited from conducting an assessment of the patient’s decision-making
capacity, for reason that the patient was uncooperative, abusive or aggressive, or
simply refused to answer the paramedic’s questions. In the absence of being able to
determine if the patient had the requisite capacity to refuse, participants would
conclude that they did not. This only occurred in circumstances where the potential
risks to the patient’s life or health were significant were and the paramedic was
prohibited for assessing the patient’s decision-making capacity and unable to
establish sufficient evidence to rebut the principle of capacity and conclude that the
patient lacked the requisite capacity to refuse.
In situations involving a high degree of risk, the paramedic is still required to
assess the patient’s decision-making capacity. If capacity is assessed to be absent,
602 In that the participant’s first considered the patient’s ability to take in and retain information; their
ability to process information in a considered way and ultimately comprehend it; and they were able to
communicate their choice to the paramedic. This process is consistent with that set out by Thorpe J in
Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290. Although see the discussion in Parker, above
n 582, 491. The author raises concern regarding possible inconsistencies between legal requirements
and assessment procedures and the findings of health professionals tasked with assessing decision-
making capacity, particularly in cases involving a high risk.
Chapter 6: Decision-Making Capacity 205
then the presumption of capacity principle will be rebutted; if there is no evidence
that it is absent, then the principle will continue to apply.603
With the exception to this latter finding, this chapter of the thesis has
demonstrated that participants in this study had a superficial but very reasonable
knowledge of the law that regulates decision-making capacity in the context of a
patient’s decision to refuse paramedic treatment and/or transport (Research Question
3). The chapter also demonstrated that participants applied the law correctly in all
circumstances, except in cases involving a significant level of clinical risk combined
with an inability to determine decision-making capacity, where a presumption of
incapacity was made (Research Question 4 and 5).
These findings are inconsistent with the views expressed by focus group
participants in relation to paramedic knowledge and application of the law pertaining
to decision-making capacity. This inconsistency is discussed in Chapter 9.
603 Re B (Adult: Refusal of medical treatment [2002] 2 All ER 449, 472; Re PVM [2002] QGAAT 1,
[40]-[41].
Chapter 7: Voluntary Decision 207
Chapter 7: Voluntary Decision
7.1 INTRODUCTION
In circumstances where a patient refuses to provide consent for paramedic
treatment and/or transport, one of the factors that must be considered is whether the
decision has been made voluntarily. As we saw in chapter 3 of this thesis, a voluntary
decision is one that is free from coercion or undue influence or reached based on
false or misleading information.604
Ascertaining that a patient’s decision is voluntary was one of the common
categories that were grounded in the paramedic interview data and influencing a
patient’s decision was a category grounded in the focus group data.
This chapter will present the findings of this research as it related to
paramedics’ knowledge of voluntariness in the context of a patient’s decision to
refuse paramedic treatment and/or transport, their compliance with the law during
their interactions with a patient who has refused, and how paramedics apply their
knowledge when turning their mind to the question as to whether the patient has been
unduly influenced, either by the attending paramedics or a third party.
The chapter will first present, in section 7.2, the findings of the focus group
discussions as they relate to this category. Again, these findings were considered for
the purpose of providing direction for conducting of the individual paramedic
interviews, and framing questions relevant to the research questions.
In section 7.3, the findings of the individual paramedic interviews as they relate
to paramedic knowledge of the law pertaining to voluntariness, are presented. In this
section, participants’ knowledge of undue influence and other factors that may
invalidate a patient’s decision are explored.
The way participants apply the law relating to voluntariness is presented in
section 7.4. A number of case examples are provided in this section, which serve to
highlight the use of acceptable influence and undue influence exerted by both an
604 Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649. See discussion in Chapter 3,
section 3.4.2.
208 Chapter 7: Voluntary Decision
attending paramedic or a third party such as a patient’s family member or friend.
The chapter then concludes with findings relating to participant knowledge of, and
compliance with the law relating to voluntariness and patient decisions to accept or
refuse paramedic treatment and/or transport.
7.2 FOCUS GROUP PERSPECTIVES – PARAMEDIC KNOWLEDGE AND
APPLICATION OF THE LAW
Focus group participants who participated in one of the three focus groups
opined that paramedics unintentionally influence their patients who have elected to
refuse treatment and/or transport, to accept treatment and/or transport against their
wishes and do so in circumstances where the paramedic honestly believes that it
would be in the patient’s best clinical interests.
I think coercion is the big issue there. It is very easy for someone to fall into
that trap of coercing (and do so) unintentionally. FG001
Focus group participants also expressed the view that paramedics may recruit
others who are close to the patient, such as a family member or a close friend, to
pressure the patient to accept the treatment and transport that the paramedic has
recommended. The participants, however, were not critical of the possibility that
paramedics directly, or indirectly, influence patients to change their mind and agree
to the course of action proposed by the paramedic. Some participants appeared to be
supportive of these actions, particularly if it averted an unfavourable clinical
outcome for the patient.
Participants in the remaining two focus groups debated the issue at length,
however their attention was directed more to the question of paramedic conduct and
what would amount to undue influence as opposed to acceptable influence. The
focus group participants were ultimately, and erroneously, of the view that the
clinical circumstances would be the decisive factor as to whether the influence, either
directly exerted by the attending paramedic, or indirectly through a third party,
would amount to undue influence. If the patient’s clinical condition was such that it
necessitated immediate paramedic treatment and ambulance transportation to a
hospital or health facility, then efforts to achieve that outcome, and the patient’s
acceptance thereof, were generally considered by the focus group participants as
acceptable influence.
Chapter 7: Voluntary Decision 209
I think in relation to a voluntary decision I think you can look on the other
side of the argument. I've been on the scene and I have recruited family
members to convince a patient. I've tried everything I can and then I've
recruited them to influence that patient to accept transport. (FG003)
Is coercion an issue? That goes through my mind sometimes but in my mind,
if it is in the patient's best interest to go to hospital, it is not (coercion).
(FG002)
Well, depending on the case … when I feel that (the patient) definitely needs
to go (to hospital), then (we should) try and facilitate that. (FG003)
This view is clearly inconsistent with the law, as will be demonstrated later in
this chapter.
7.3 PARAMEDIC KNOWLEDGE OF THE LAW
Participants unanimously acknowledged that the decision to refuse paramedic
treatment and/or transport must be the patient’s decision and one that is reached
without being coerced or unduly influenced by another.605 However, the participants
were divided with respect to their understanding of what constituted undue influence
exerted by a family member or other third party, and this division was reflected in
both their comments regarding voluntary decisions, and their descriptions relating to
their own practice.
Family involvement in patient decision-making is not unique to the pre-
hospital setting. Patients who are members of a close-knit family unit do not
necessarily see themselves as independent or totally autonomous, and often look to
the collective family unit, or select member thereof, for guidance with health care
decisions, particularly those that may be significant.606
Decisions that are made regarding paramedic treatment and transport to a
hospital, often take place in circumstances where there is little or no warning of the
need to make decisions of this kind. The onset of the illness or incident that resulted
605 Re T (Adult: Refusal of Medical Treatment [1992] 4 All ER 649, 662. See discussion in Chapter 3,
section 3.4.2. 606 Liz Blackler, ‘Compromised Autonomy: When families pressure patients to change their wishes’
(2016) 18 Journal of Hospice and Palliative Nursing 184,187.
210 Chapter 7: Voluntary Decision
in the request for paramedic assistance may have been sudden and understandably,
give rise to invoking alarm or fear. A family member supporting a patient through
the decision-making process in these circumstances does not amount to undue
influence. It is only when a family member or another applies such pressure as to
cause the patient to make a decision that does not reflect their true wish, that the
pressure would amount to undue influence.607 The decision could be one to accept
and provide consent to paramedic treatment after initially expressing their wish to
refuse. Or the decision could be one to refuse paramedic treatment and/or in
circumstances where their preferred wish may have been to accept that which the
paramedic recommends.
Influence to accept paramedic assessment, treatment and transport
Twelve of the thirty paramedic participants did not believe that ‘influence’
exerted by a third party that resulted in the patient altering their decision from an
initial refusal, to accepting recommended treatment and/or transport, would amount
to undue influence. Their reasoning in support of this view related to the actual
decision that was eventually made, and not the means by which the decision was
achieved. If the decision that was ultimately made was, in the opinion of the
attending paramedic, in the patient’s best clinical interests, then any influence that
may have been applied during the decision-making process, was considered to be
reasonable and justified. This view received strong support for the twelve
participants, who also stated that they would actively seek to engage family members
for this purpose.
I think family are very helpful. (They) are more likely to support our
opinion than to go against it. I can’t think of a time where I’ve had to ask a
family member to move away from the situation because I believed that they
were negatively influencing the patient. PP29
A lot of the times we will use (family members) to our advantage to
influence the person that needs to go to hospital, to go. (This) works well in
our favour because they need to be there. PP28
607 Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649, 661.
Chapter 7: Voluntary Decision 211
You usually have some family members around who are there to say ‘no,
you’re not staying at home’ or give them a little push in the right direction
(to accept paramedic advice). They know them better than we do, so they
are going to have a bigger sphere of influence over that person than we
might have. (PP12)
We do coerce people to go to hospital because sometimes you just have to.
They've called an ambulance for a reason, they haven't called because they're
not worried, or a family member (has called) because they're not worried.
They've called because they need to go. You explain to the best of your
ability to the person, what your findings are, what you are looking at and
what possible outcome could be. For some, it just doesn’t sink in and for
others, it does. Sometimes you can talk them around. (PP14)
The position that the participants have adopted fails to consider the process by
which the decision was brought about, and whether the ‘influence’ exerted the family
member or another, resulted in the patient departing from their own wishes in order
to adopt the wishes of the person exerting the influence.608
Friends and members of the patient’s peer group can also exert influence.
Participants noted that this is not uncommon in a situation involving a patient who is
a young adult and is in the company of groups of young adults at a social venue.
Participants identified crowded scenes such a party or social gathering where people
would offer advice and issue directions to a patient regarding how he or she should
decide what health services should be accepted or rejected in the circumstances. The
barrage of opinions and pressure that is exerted can often confuse the patient and
result in a situation where they are unable to decide. Paramedics acknowledged the
potential influence and looked to means by which they could relocate the patient to
an area that would afford them the opportunity to consider the paramedic’s advice
and make a decision.
It probably depends on the situation, but anytime there are a lot of people
around … a lot of family members or others, so parties (for example) are
very frustrating. Everybody's got (his or her) two cents to throw in. (In this
608 Staughton LJ in Re T (Adult: Refusal of Medical Treatment [1992] 4 All ER 649, 662. ‘Influence
will be undue if there is such a degree of external influence as to persuade the patient to depart from
[their] own wishes’
212 Chapter 7: Voluntary Decision
particular case) everybody was on the edge, coercing her to go to hospital.
(PP13)
The patient has to make a voluntary decision. If you think they need to go to
hospital, but they are being influenced by someone else, it's really hard to get
them out of that situation. It is hard too, because (I am) put in a position; do
I need the police here to help with this, because a lot of the times it is just
going to escalate. (PP20)
According to the participants, some of these situations can be particularly
difficult to manage and they often need to seek assistance from the police service to
help defuse a potentially volatile situation.
As mentioned in preceding paragraphs, participants were divided with respect
to the conduct that they considered would amount to undue influence as opposed to
reasonable and acceptable influence in order to assist the patient make their decision,
and this division extended into areas involving decisions that were made at crowded
scenes and where influence was exerted by groups of individuals as opposed to a
single family member or third party. Once again, there was a group of participants
that held the view that any influence resulting in the patient’s decision to accept
recommended paramedic treatment and transport, could not be undue influence.
It is not surprising then, that only eight of the thirty participants reported that
they had encountered, and correctly recognised, undue influence applied by a third
party in cases that they had attended. These eight participants considered it essential
to monitor the interaction between the patient and others at the scene, and if the
paramedic suspected that a patient was being subjected to undue influence, request
that the person involved, leave the room or the area in which the patient is located so
that the patient and paramedic could interact freely, and the patient be afforded the
opportunity to make their own decision regarding treatment and transport.609
If I have a patient whose family member's intervening a lot, I ask them to
leave the room; I ask if I can talk to the patient on my own. I make them
busy, go and write down the full name and date of birth, get (the patient’s)
609 An authorized officer, the definition of which includes a QAS employed or voluntary paramedic,
can ‘require’ a person to refrain from entering, or remaining in a specified area, if their presence in
that area could be deemed to constitute a danger to the patient. See Ambulance Service Act 1991
(Qld), s38(3).
Chapter 7: Voluntary Decision 213
things. I try and get them out of the room so I can talk to the patient (alone)
so they can make an independent decision by themselves. (PP09; emphasis
added)
These eight participants were cognisant of the law, or rather, that which it
required, and to that end, recognised the need to allow the patient time, space and
privacy in order to ask questions, and reach their own decision regarding the
treatment and transport that was recommended.610
However, negotiating with the patient’s family or significant other in these
circumstances can be challenging. It requires the paramedic to maintain a ‘delicate
balance’ between keeping family members appraised about what is going on and
allowing the patient sufficient privacy so that they can process the information that
has been provided, ask questions, clarify responses, and ultimately reach their own
decision. As one participant noted, managing such a situation could give rise to
conflict between family members and the paramedic and potentially expose the
paramedic to a volatile predicament. This of itself may then result in the patient
making a decision that is inconsistent with their wishes but made to avoid conflict.
Family members are a huge (issue). It’s not uncommon to go to patients and
they’ll be sitting on the couch and they may have six or seven family
members standing around. It’s a delicate situation because you’re in their
home, it’s their family member (receiving care), and you want to remove
them (the family members) from the situation because they are clearly
influencing the patient’s decision. By the same token, you don’t really want
to get a punch in the mouth because you’re asking people to leave. So it is a
very delicate balance between managing the scene and managing what the
patient wants to do for (him or herself). (PP03)
Another participant recalled a case that she had attended in which the patient, a
young female in the first trimester of her pregnancy was suffering from abdominal
pain. The patient’s partner lodged the request for paramedic assistance and when the
paramedics arrived at the address, they could hear a female voice screaming out,
telling them to leave the premises. The participant was granted entry into the
residence however, the patient was not ‘overly forthcoming’ with information and
made it abundantly clear to the participant that she did not require their services and
610 Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649.
214 Chapter 7: Voluntary Decision
did not want them. The participant was able to ascertain that the patient had
consumed alcohol, however the participant formed the view that this had not
impacted on the patient’s decision-making capacity. Transport to hospital or the
doctor’s surgery was recommended but the patient refused. The patient’s partner
was insistent that the patient be transported to hospital and was applying pressure to
both the patient and the paramedic, to the point that the participant felt intimidated by
both his actions and his language.
I (would have) preferred to take her to hospital and I did repeatedly ask,
again and again. She had capacity; I believed that she did understand. I just
don’t think she cared to be honest. They (partner and friend) were adamant,
almost to the point of being physically (aggressive); they were in my face,
trying to explain to me that I had to take (the patient) to hospital and they
were going to drag her down to the ambulance and put her into the
ambulance for me. I explained that (they) could not (do that).
Her partner was becoming aggressive; I think it was more towards me than it
was actually to the patient. The patient was quite controlling of the whole
situation as in she was definitely putting him in his place and telling him
what she thought. I think he started turning towards me, thinking that I was
the only hope of getting her to hospital. He did get quite intimidating in fact.
He would get quite close to me and he would point and poke me in the chest.
I think he was under the assumption that I was going to take her and that I
had the ability to take her against her will, but she had the capacity to make
her own decision. I was trying to explain that to him … that if she has
capacity, there’s nothing that we can do. (PP4)
The patient in this case, whilst subjected to significant pressure, was not
influenced by it. The paramedic believed she was correct in advising the partner that
the patient had made her decision, and that they were obliged to respect her wish and
that he should not, and could not, influence her to change her mind to adopt his
wishes and his decision.611
611 Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649.
Chapter 7: Voluntary Decision 215
Influence to refuse assessment, treatment and transport
Not all influence exerted by family members and others is for the purpose of
convincing the patient to accept the paramedic’s recommendations and provide
consent to treatment and/or transport to hospital. Influence can also be applied to
encourage the patient to reject assessment and in some cases, treatment, in order to
comply with cultural beliefs or philosophical views held by the family member
regarding health care. Participants identified certain cultures in which male
paramedics were forbidden from touching a female patient for the purpose of
conducting a clinical assessment or providing paramedic treatment, and in some
cases, the female patient was not permitted to speak or communicate by any means
with the male paramedic. The principle of undue influence applies equally to
decisions to accept or reject treatment and/or transport.612
A female participant recalled a case in which she and her male partner
experienced difficulties communicating with a female patient in these circumstances,
including eliciting information from the patient in relation to the symptoms that
resulted in the request for an ambulance and paramedic assistance.
The woman was refusing to answer any questions asked by my male partner
(paramedic). The husband would step in and answer for her. (The
paramedic) was like no, no, I need to talk to her …. it is not your body; it is
not your decision. (The husband) was getting quite funny about it. (PP11)
However, if the patient also held these views, and the expressions of family
members were reflective of the patient’s wishes, the husband’s conduct would not
amount to undue influence.613 It would seem, however, that the paramedic was also
precluded from making this determination.
7.4 PARAMEDIC APPLICATION OF THE LAW
When paramedics provide patients with advice, or respond to the questions that
they are asked, the manner in which the advice is framed, and the tone in which it is
delivered, can potentially influence a patient in their decision-making, and possibly
612 Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649, 662; Hunter and New England
Area Health Service v A (2009) 74 NSWLR 88, [24]. 613 Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649, 662.
216 Chapter 7: Voluntary Decision
persuade them to change their mind with respect to the course of action that they may
ultimately take.
Paramedics are acutely aware of their position and how they could potentially
influence a patient, deliberately or unintentionally, to agree to a course of action that
is contrary to the patient’s wish. Some participants in this study stated that they
actively monitor the way they interact with each patient so as to avoid unduly
influencing the patient’s decision, whereas others exploited their position and used
all manner of techniques to ultimately obtain a patient’s consent, albeit with the best
of intentions.
Thirteen of the thirty paramedics interviewed, commented in such a way that
clearly indicated that they were mindful of the need to remain neutral when
providing a patient with the information, support and encouragement that is required
during the patient’s decision-making process. The thirteen paramedics in this group
were cautious in the manner in which they interacted with their patients and sought
to provide honest and accurate advice that was relevant to the patient’s
circumstances, and do so in a manner that did not unduly influence the patient’s
decision.
(Paramedics) are getting a lot more pressure put on (them) because people
are asking what we think. If (we) have given them sufficient advice, it’s
then up to them. The patient has to make a voluntary decision and a lot of
the times we're (potentially) influencing that decision by saying we want
(them) to come to hospital. (PP20)
Obviously different people make different choices. We're there to offer
people our services and information …. It is not our place to say, no you're
making the wrong choice, because they're an adult and they can make their
own choices. (PP2)
I would have preferred him to come to hospital and be observed for a while
in a safer place but ultimately it was his decision. I informed him that I
didn’t know what was going on and I communicated all of the information I
had (assessment findings). I can’t remember exactly how I explained it but I
was honest and said I can’t rule out that there’s something sinister going on.
Chapter 7: Voluntary Decision 217
I’m a big believer in people being responsible for their own welfare and
actions. I was comfortable that he had made his own decision. (PP5)
One participant went so far as to suggest that it would be inappropriate to
recommend a course of action to the patient for fear that this might influence their
decision-making. However, other participants did not support this view and
considered that a paramedic should provide professional advice and that the advice
should include a very clear recommendation as to the treatment and ongoing
management that the paramedic considered necessary in the circumstances.
If we are going to be non-biased or non-influential, we still have to have our
standpoint as a healthcare professional (and advise) them of (our
recommendations) that they attend hospital. I will often say to patients that I
am not going to drag them against their will. It is (their) decision if they do
or do not want to come. (I say) I would like you to come to hospital because
of these reasons. (PP28)
A number of the participants would seek to explore the patient’s concerns
regarding the management options that had been recommended and why the patient
had refused to provide consent or was hesitant to make a decision regarding
treatment and/or transport. Learning of the patient’s concerns and reasons for their
refusal would enable the paramedic to consider options that may be available to them
that would address these concerns. In some cases, it resulted in the paramedic
revising the recommended management plan so that it was more acceptable to the
patient. Participants did not believe that this line of inquiry, followed by alternative
suggestions or recommendations from the paramedic regarding management options,
would amount to undue influence.
My process involved looking at an alternative pathway if he didn’t want to
go to hospital. If someone is adamant, they don’t want to go to the hospital,
I would look at that alternative pathways (such as) the GP surgery, or one of
the super clinics, or the out-of-hours GP service so that we are not just
leaving the person there; there is a follow-up for them. I’d rather look at
getting the person the help that they need if they don’t want to go to hospital.
(PP24)
I just try and find out why (the patient is refusing transport). I’ve got my
kids; I can’t leave my kids. (I ask) can the neighbours look after them? If
218 Chapter 7: Voluntary Decision
no, we’ll bring them (in the ambulance). You have to explore options.
(PP27)
We went to a GP practice for a male that had chest pain. The GP has
contacted the QAS and we have (responded) code 1. He declined transport
…. his car was in the car park and he didn’t want to leave it there as he had
done it up and it was valued at $60,000. We gave him several options as to
how we can get his car back home and then him to the hospital; housemate
come and pick it up; we take the ambulance to his house and pick up the
housemate; my partner drives (the) car back to (his) house and we follow in
the ambulance; (he) drive and we drive behind to the house. (PP10)
The actions of the participants in this regard did not amount to undue influence.
The participants were merely seeking to identify the obstacles or concerns that the
patient had regarding transport to hospital, and if there was something that the
participant could do to remove those obstacles or address those concerns for the
patient.
The remaining seventeen participants openly admitted to using a range of
methods aimed at encouraging the patient to provide consent for treatment and/or
transport, if they considered that it was in the patient’s best interests to do so. The
methods that participants claimed they adopted for this purpose included emotional
blackmail, bargaining, and applying pressure. The greater the clinical risk to the
patient, the more persuasive the techniques that were adopted by the paramedic.
People want you to come out and they want you to assess them, but they
don’t want to go to hospital. They want you to treat them. If (we) believe
they need to go (to hospital) we will advocate stronger. I even use the
family … in a way, emotional blackmail. I think sometimes you have to do
that. I use everything I can to get them in the ambulance. I can’t, obviously,
manhandle them; that would be assault. But I need to use everything else in
my tool bag to try and get them in the ambulance and to see a doctor …
(PP1)
Chapter 7: Voluntary Decision 219
These statements and the influence they purport to describe, demonstrate a lack
of knowledge of the law regarding undue influence, and a willingness to act in a
manner that is contrary to the law.614
In the first instance, it is dangerous to operate from the premise that a mere
request for paramedic assistance implies consent for assessment and consent for
treatment and transport. It does not.615 And if it did, which it doesn’t, it would be
dangerous to rely upon the request in this way, for the reason that most requests for
an ambulance and paramedic assistance are lodged by a person other than the
patient.616
The influence exerted by the participants may not always result in the patient
changing their mind to appease the paramedic, and if it did, it could be that they were
uncertain of what to do and obtained more clarity following a lengthy conversation
with the paramedic. In these circumstances, the paramedic may have been
influential, but had not unduly influenced the patient, such that the decision would be
invalid.617
We sat with him probably close to half an hour and most of the time I was
trying to convince him to go to hospital. He just turned around and said;
‘thank you very much; I really do appreciate your help but, I’ve got too
much on in the morning; I’ve really got to do this tomorrow’ and I said, what
happens if tomorrow doesn’t come for you? (PP19)
I find most of the time when they initially refuse, I can get them to come and
I don’t have to be forceful or rude or aggressive about it and I don’t have to
kidnap them. I just use the powers of persuasion, persuasive speech. (PP22)
I don’t want to say coercion, but to influence them in some way to agree
with that course of action … (PP24).
614 Ibid. 615 Hart v Herron (1984) Aust Tors Reports 80–201. 616 Requests for paramedic assistance are rarely made by the patient for whom the assistance is
required. Requests are invariably made by family members, work colleagues, friends, or members of
the public who do not know the patient, and in some circumstances, may not have assessed if the
paramedics are even required. Anecdotal information obtained from an Executive Manager, Office of
the QAS Medical Director. 617 Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649.
220 Chapter 7: Voluntary Decision
We were discussing the options. (We told him we) would like to take him to
hospital and very quickly the compliance changed. So, then the bargaining
began. We tried to get support from his friends to suggest that maybe going
to hospital would be a good thing, it would only be for a few hours, he’d get
checked out and then he could be let go home; and if he did go to hospital
he’d probably be able to just sit and have a sleep anyway. (PP12)
Luckily, I'm so persistent and I just sweet-talk - I do whatever I need to do -
because it's the right thing for the patient. The vast majority of the time, I'll
just be persistent to the point where they think; Oh God, let's just go so this
guy will shut up. I needed to be very, very persistent. I have been persistent
in the past and managed to get people to see my point of view and get (the
patient) up (to hospital) for their benefit. (In this case) I had run out of ideas,
and I got to a point where I went, okay, there is nothing we can do anymore.
(PP03)
In their attempts to persuade patients to change their mind, several participants
in this group engaged family members to assist to convince a patient to agree to the
treatment and/or transport that they had recommended. In addition to engaging
family to apply pressure in this regard, the participant would encourage the patient to
listen carefully to the family member, and to consider the profound loss and
heartache that they would experience if the patient suffered an adverse clinical
outcome. Family members would, for the most part, willingly participate in these
activities and would do so in order to ensure that their loved one received the best
possible medical treatment, and best possible clinical outcome.
If we had family with us, we'd convince him - try and get the family to get
involved and they could say - just try and explain to them, the importance of
getting medical intervention early rather than late. (PP19)
You use family. You’ve got two beautiful kids here. They’ll be pretty upset
if something happened to mum. You just use whatever tactics you can.
(PP27)
We'll tend to go along that line, a lot of coercing. What if it was your
husband that was in this position? Would you like them to be seen to? So
there are a lot of cliché lines, that we use to…(PP26)
Chapter 7: Voluntary Decision 221
In cases where the patient was exposed to a high degree of risk yet remained
unshakable in their decision regarding treatment and/or transport to hospital,
participants would consider increasing the degree of influence and would even
contemplate using tactics of a more disturbing nature to persuade the patient to
change their mind. Participants shared experiences where patients were threatened
with the involvement of police officers and where scare tactics were employed in an
attempt to convince the patient to yield to the paramedic’s recommendation. It
should be noted that it is unlikely that these tactics are used as a matter of course and
have only been engaged as a ‘last resort’ and in circumstances where the paramedic
was unable to determine with certainty, if the patient did, or did not, have the
requisite decision-making capacity at the relevant time.618
There are definitely (different) levels of coercion (by paramedics). The
higher the level (of risk) the higher I am going to try (although) I try not to
coerce too much. (PP21)
If I say to the patient, would you rather go up in a police car with handcuffs,
or come sit on our bed (in the ambulance), and I’ll look after you on the
way? Nine out of 10 they’re going to say I’d rather come with you. (PP26)
I tried the nicely, nicely route first and then I said to her, well look, you will
be coming to hospital, that’s happening. So, whether you just get in the car
with me now or we have to get someone else here. I didn’t want to get the
police to her. She was an old lady. (PP22)
If they don’t want to be cooperative with me, I tend to then use a bit more of
an authoritative persona about myself and just (tell them) this is really
serious. If you aren’t prepared to take on the responsibility, then I am going
to have to call for some assistance in the form of police. I don’t want to do
that. (PP9)
I think it depends on capacity. Some people respond okay to saying ‘look
you don’t have a choice you have to come with us. That’s the best-case
scenario obviously. Generally, the lines that we go down after this is first of
618 Clearly rejecting the presumption of capacity but unable to establish evidentiary support of
incapacity as discussed in the preceding chapter.
222 Chapter 7: Voluntary Decision
all we threaten to get the police and then if need be, which is total worst case
scenario, we get the police involved and if need be, to forcibly remove which
is just totally undesirable. (PP18)
In the worst-case scenario (if capacity is doubtful) we’d probably use the
police and that’s the worst-case scenario. It’s not often we’d like to do that.
We try and encourage people to make their own decision but if it is at a point
where it’s dangerous and high risk, we would get the police possibly
involved if they haven’t got that capacity to say yes and no. (PP19)
If someone you deem (is) not logical; they really don’t have capacity; they
don’t know was is going on; they don’t know what is going to be the best
thing for them then QPS (police) is always an option which is obviously
sometimes not a very pleasant option. (PP7)
One of the more common scare tactics that was employed for the purpose of
persuading a patient to consent to transport, is embedded in the advice provided by
paramedics regarding the risks associated with the decision to refuse. Participants
are diligent in their efforts to inform patients about their condition and the risks
associated with that condition if medical supervision and timely medical intervention
is not provided. In some circumstances, participants reported that they and their
colleagues would advise the patient who has refused transport to a hospital or health
facility, that their decision could result in their untimely death.
The patient may very well die, however, it would be wrong to make this
statement, or provide this advice, if there is no clinical reason to suspect that the
patient’s death could be imminent. Such would amount to a misrepresentation.
I'm pretty good at persuading people and letting them know that if the
paramedic thinks that you need to go to hospital then maybe you should. It
is not scare tactics, but you do have to go through everything; the dangers of
staying at home; the risks. You have got to put the death word in there and
that kicks people; they will either laugh at you or take it more seriously, but
at the end of the day it is their decision. (PP21)
I'll go so far as to say you're going to die from this, in the hope of getting
them to go to hospital. It doesn't always work, sometimes you get the wife or
the child to say; you really need to go. (Also say) If you go to sleep you may
Chapter 7: Voluntary Decision 223
not wake up. This could be the last time you ever speak to somebody. You're
a bit harsh but they sort of go, ooh maybe I will go to hospital for a check-
up. (PP27)
I always use the die word with them, and I hope that that scares them into it
essentially. Like I just try and scare them into it a little bit if I really feel like
they should go. So, I just try. (PP22)
As discussed above, a paramedic, when making representations as to the
purpose or necessity for conducting a particular assessment, carrying out a
recommended treatment or advocating in the strongest of terms that the patient
should attend a hospital, must ensure that the representations that are made are
accurate.619 This is also the case when advising a patient of the likely outcome or
risks associated with a decision to refuse treatment or refuse transport, such as those
indicated in the paramedic statements above.
7.5 SUMMARY
A contemporaneous decision to refuse paramedic treatment and/or transport
must be voluntary to be valid under the common law. A voluntary decision is one
that is made without coercion or undue influence on the part of the paramedic or a
third party, or one that is made based on false or misleading information.
This chapter presented the findings of thirty individual paramedic interviews as
they address questions regarding participant knowledge and application of the law
relating to voluntariness and decisions to refuse paramedic treatment and/or
transport.
All participants were cognisant of the requirement that a patient’s decision to
refuse treatment and/or transport was to be made voluntarily and without undue
influence. However, it was evident that almost half of the thirty participants did not
understand what constituted undue influence and were of the misguided belief that
any influence resulting in the patient accepting recommended treatment was legally
acceptable for reason that it was well-intentioned and was aimed at achieving an
outcome that was, in the opinion of the paramedic, in the patient’s best clinical
619 R v Jones [2011] QCA 19.
224 Chapter 7: Voluntary Decision
interests.620 This is clearly inconsistent with the law and demonstrates a deficiency in
those participants’ knowledge of the law regarding voluntariness (Research Question
3).
Motivated by the clinical circumstances in each case, participants would
engage family members to convince a patient to retract their refusal and once again,
viewed the actions of both the family member and the paramedic as acceptable for
the reason that it would most likely achieve a better clinical outcome for the patient.
In cases involving a high degree of risk, the participants admitted to increasing
the level of influence and persuasive techniques that they would exert, particularly in
cases in which there was uncertainty regarding the patient’s decision-making
capacity. These techniques would involve scare tactics such as threatening to call the
police or advising the patient that they may die if treatment and/or transport were not
provided. Whilst death may very well occur, if death was not imminent or in the
immediately foreseeable future, such a statement would amount to a
misrepresentation of the truth.
This conduct is inconsistent with the law and indicates, at least in relation to a
percentage of the participants, a very clear failure to comply with the law relating to
decision-making and voluntariness, in their practice (Research Question 4 and 5).
Not all participants were misguided regarding this area of the law and practice.
Almost half of the participants621 cited a very accurate understanding of the law and
described the way they approached this area of clinical practice that was consistent
with the law. These participants made every effort to avoid making statements or
engaging in a course of conduct that could result in the patient accepting treatment
and/or transport if that was inconsistent with their wishes. A proportion of this
group622 had personally witnessed undue influence being exerted by a family
member and had implemented steps to negate this.
There was no doubt that participants were committed to achieving the best
possible clinical outcome for each patient however, if a patient’s decision to consent
to paramedic treatment and/or transport was made following the use of tactics that
620 Seventeen of the thirty participants mistakenly held this view. 621 Thirteen of the thirty participants. 622 Eight of thirty participants.
Chapter 7: Voluntary Decision 225
have been described in this chapter, that decision would be invalid and the action of
the paramedic viewed to be inconsistent with the law.623
623 Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649.
Chapter 8: Provision of Information 227
Chapter 8: Provision of Information
8.1 INTRODUCTION
The provision of information to patients regarding the nature and consequences
of their decision to refuse recommended treatment was discussed earlier in Chapter
3. In the first instance, it was suggested that a valid contemporaneous decision to
refuse treatment required the patient be informed of the risks associated with that
decision, prior to the decision being implemented.624 There is a division of opinion
regarding this issue and the law remains to be settled.
Notwithstanding, paramedics are required to provide information about the
consequences and risks associated with a decision to refuse however, this
requirement is founded in a common law duty to do so,625 and is not part of the law
that regulates the validity of patient decisions to refuse treatment.
In this chapter, it will be demonstrated that paramedics attach a great deal of
significance to what they perceive as a requirement to provide detailed information
to a patient who has refused paramedic treatment and/or transport; information that
may very well exceed that which they have a common law duty to provide. It is this
perceived requirement that no doubt contributed to ‘provision of information’
emerging as common category that is grounded in both the focus group discussion
data, and the individual paramedic interview data.
This chapter will explore why paramedics seek to provide detailed information
to patients, and why they consider it is necessary to do so in cases involving a refusal
of paramedic treatment and/or transport.
The chapter will first present, in section 8.2, the findings of the focus group
discussions as they relate to this category, followed in section 8.3 by the findings of
the individual paramedic interviews which details the information that participants
624 See discussion in Chapter 3.5. 625 Similar to the duty imposed on medical practitioners to warn a patient of a material risk associated
with a procedure for which the patient is contemplating consent. See Rogers v Whitaker (1992) 175
CLR 479, 490.
228 Chapter 8: Provision of Information
provide to patients, and the manner in which they provide it. In section 8.4, the
reasons why participants seek to provide information are explored.
It is clear that paramedics have a common law duty to provide information to a
patient regarding their conditions and risks, a duty that is founded in the law of
negligence. The chapter concludes with a finding that paramedics provide detailed
information to patients for two reasons. The first reason is to facilitate autonomy and
adequately equip patients with information that is necessary to enable them to
exercise their choice. The second reason that paramedics provide information is to
enable them to accurately assess a patient’s decision-making capacity.
8.2 FOCUS GROUP PERSPECTIVES: PARAMEDIC KNOWLEDGE AND
APPLICATION OF THE LAW
Focus group participants were critical of paramedics in relation to both the
content and the way they communicated health related information to their patients.
According to the focus group participants, the information as it is presented to
patients, is either too vague, or too technical, rendering it difficult for many patients
to understand. The excessive use of medical terms, medically accepted acronyms and
technical language were identified as examples of ineffective communication when
providing patients with information about their condition. Participants were
concerned that patients would not be familiar with the terminology that was often
used by paramedics and as such, would not be able to interpret the information that
had been provided.
I think a big problem with paramedics, especially newly graduated
(paramedics) or students, is they will say: look you might have an MI
(myocardial infarction) if we leave you. You've got to say to them that that
means a heart attack. When you're all talking medically (or using) medical
terminology (patients) have no understanding of medical terminology. So
that's a bit of a problem. FG002.3
The failure to identify the communication needs of individual patients, and
thereafter, provide information that the patient was capable of understanding, was
something that the participants attributed to inexperience. Participants were of the
view that paramedics possess the clinical knowledge however it was, in their
opinion, a lack of practical experience that resulted in the paramedic’s inability to
Chapter 8: Provision of Information 229
deliver relevant clinical information in a way that the person, for whom it was
intended, could understand it.
It's wholly reliant upon the experience and application of knowledge of the
paramedic because the younger ones we have, though they have knowledge,
lots of book knowledge, they have a lack of application of that knowledge
and a lack of application of experience that is integral to a decision being
made. So I think that does have a big influence. FG001.3
I think the (communication of) information is wholly dependent on the
paramedic's ability to acquire knowledge and experience, and their ability to
relate it in a context that is understandable to the recipient. FG001.3
(Patients) need to be able to comprehend that information. So it’s relying on
the paramedic to firstly have that information, secondly to translate that
information into easy to understand phrases and words … so that the patient
themselves, with that information, can make the relevant decision. FG001.3
A second example of ineffective communication that was offered by focus
group participants was the use of statements that were too broad. Participants were
of the view that broad statements provided to the patient really amounted to
providing little or no information. If the information is too broad, participants
believed that it was impossible for a patient to develop an understanding of their
condition, or the risks that may flow from the decision to refuse recommended
treatment and/or transport.
Some (paramedics) frame information too general. They're not specific
enough. FG002.3
In general, I find that we don't do that very well. I mean from a field audit
perspective, dropping in and watching these guys in action, ... I don't think
they actually provide information. You hear broad statements like oh, you
know, you could get a lot sicker, but no specifics. FG002.3
Notwithstanding the views expressed by participants in the focus groups, the
individual paramedics who participated in this study conveyed a very different
perspective when answering interview questions relating to this topic. The type of
health information that paramedics provide to patients who refuse treatment and /or
230 Chapter 8: Provision of Information
transport, and the manner in which they provide it, is addressed in the following
section of this chapter.
8.3 PARAMEDIC APPLICATION OF THE LAW
All thirty individual paramedic participants sought to provide their patients
with relevant health information. The information was tailored to the circumstances
and generally included details of the clinical assessment findings that they had
conducted, the patient’s condition or suspected condition, the various management
options, and the paramedic’s recommendations in relation to both the treatment that
should be provided immediately, and subsequent follow up that the paramedic
considered was necessary. Follow up may include a recommendation that the patient
be transported to hospital, and if so, the reason for hospital attendance and the most
appropriate hospital.626 If the patient refused treatment and/or transport, the
participants would seek to advise the patient of the possible risks associated with that
decision.
The way participants delivered information to each patient, the language and
tone that they adopted, how they framed the information, and the level of detail that
they provided, were issues that participants considered, and modified according to
their assessment findings and the patient’s specific needs. Factors such as the
patient’s age, ethnicity, intellect and state of mind at the time, were considered
relevant, as was the patient’s clinical status and the potential need for urgent medical
intervention.
I sit down next to them or make eye contact with them so that they're level
and explain to them why I believe they need to go the hospital, what are the
circumstances around it. We tell them the worst-case scenario and it's not
so that to scare them, it's just so that they're informed. PP1
626 According to individual participants, the reasons would include the need for additional tests that
the paramedic is unable to conduct in the pre-hospital setting, such as radiography; assessment by a
medical practitioner; or the need for a period of observation and clinical monitoring. The most
appropriate hospital is determined having regard for geographical location of the incident and the
nearest hospital to that location. Other factors that may influence the decision include the patient’s
preference to attend a private facility; and the patient’s specific clinical situation, for example, a
facility that has a trauma service if such services are required; specialty spinal care; an authorized
mental health facility; obstetric services; or interventional cardiac services.
Chapter 8: Provision of Information 231
I always explain in layman’s terms. It’s no use explaining medical terms to
somebody who has absolutely no idea what you’re talking about. By doing
that I believe you can see the recognition in the patient, it allows them to
understand what potentially could be going on inside their body. (PP6)
In some cases, the participants were unable to determine with certainty, the
condition from which the patient was suffering. This uncertainty was factored into
the advice that was provided, reinforcing the need and recommendation to seek
medical assistance, which would enable access to comprehensive investigative
procedures and a greater degree of diagnostic certainty.
An example provided by a participant involved a gentleman in his early sixties
who had type-one diabetes and had done for most of his life. On the day in question,
the gentleman had collapsed while playing golf. The participant reported that the
patient looked to be gravely ill when the paramedics arrived at the scene, and the
subsequent history that was obtained from the patient was highly suggestive of a
cardiac related event. However, the patient denied any chest pain and the
electrocardiogram recorded by the participant was inconclusive. The participant
suspected that the patient might have suffered a silent myocardial infarct (heart
attack) or silent myocardial ischaemic event, which is not uncommon in patients who
suffer from type one diabetes.627 The participant recommended that the patient be
transported to hospital for a more fulsome assessment. The patient refused.
I always explain in layman’s terms. I explained to him that based on how he
looked (when we arrived) and the fact that he was a diabetic, it was possible
to have what we call a silent myocardial infarct (heart attack). Whilst he
didn’t understand the mechanics of what I was explaining, I explained to him
that nerve endings can be damaged by fluctuating blood sugars, and
frequently high blood sugars, resulting in (reduced or no pain) essentially a
pain free heart attack. He understood that and made a couple of comments,
which helped me to understand that he understood. (PP6)
627 A silent myocardial infarct is where there is objective evidence of a myocardial infarct or heart
attack, without the symptom of pain. There is a higher prevalence of silent events in diabetic patients,
which is thought to be attributed to cardiovascular autonomic neuropathy. See M.S Draman,
H.Thabit, T.J Kiernan, J O’Neill, S Sreenan, J.H McDermott, ‘A silent myocardial infarct in diabetes
outpatient clinic: case report and review of the literature’ (2013) Endocrinology, Diabetes and
Metabolic Case Reports 10.1530/EDM-13-0058 <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3921998/>.
232 Chapter 8: Provision of Information
A second example, provided by another participant, involved a female patient
in her fifties who had suffered an episode of central chest pain associated with
symptoms that were consistent with a cardiac condition. The patient had experienced
similar pain and symptoms previously and had seen a cardiologist at that time. The
participant provided medication to the patient and the pain eased but had not been
completely relieved. The patient refused transportation to hospital.
I said okay well let's just talk about this; so what we've found all your vitals
are fine but given the nature of what's happened tonight, given your history I
have a high index of suspicion that what you're experiencing is some kind of
cardiac event, I think it's your heart, I can't say for sure it is because I can't
do bloods and scans but I’m thinking that if I leave you at home there is a
risk that if you are having a heart attack or a cardiac event you could
deteriorate, you could actually die in cardiac arrest if it's left untreated. Then
I think I explained the differential diagnosis; it could be other causes but I'm
telling you this is what I think it is, if you were my family member I would
be wanting you to go to hospital now to get those blood tests done just to see
for peace of mind. (PP21)
Communication of health-related information to a patient, who may not have a
sound grasp of the English language, can be challenging. Participants who had
experienced this had gone to great efforts to ensure that information was provided
and that it was provided in a manner that the patient could understand.
In circumstances where a language barrier existed, participants sought to
involve family members or others that were present at the scene, to assist with
interpreting information that was offered by the patient regarding their symptoms,
and to convey information back to the patient regarding assessment findings, and
treatment options that were recommended by the paramedic. This assistance was
also sought to convey information regarding potential risks associated with the
patient’s decision to refuse. If there was no person available to assist the paramedic
in this regard, participants reported that it is possible to access a telephone interpreter
service. None of the interview cases necessitated the use of an interpreter, as family
members were available at the scene.
A participant shared her experience involving a patient that was suspected to
have suffered a stroke, and who was unable to speak English. The patient’s daughter
Chapter 8: Provision of Information 233
was present at the time, and the participant was able to communicate through the
daughter, for both the purposes of conducting a clinical assessment, and thereafter,
providing the patient with information about the assessment findings and the
potential risk.
We had to talk (to the patient) through the daughter and (trust) the daughter’s
word about what (was being said). We asked the daughter to ask her mum if
we could assess her. We did a neurological assessment; listening to her chest
and did everything we could do. (To explain our findings and provide
information), we would ask the daughter to please tell (her mother) and she
would, and then confirm that her mother understood. (The patient) would
respond and nod her head every now and again and we had to (accept) that
as she understood. I said, we are quite concerned that she collapsed and
concerned that her blood pressure is low. We don’t know why she has
collapsed; it could happen again. (PP16)
The communication of information to patients is not without difficulties.
Participants reported that in some circumstances, the patient would expressly state, or
indicate by their conduct, that they were not interested in receiving any information
that the paramedic was seeking to deliver. In circumstances where a patient
demonstrated no interest in listening to the participant, the participants would,
nevertheless, provide the information in the hope that the patient may hear and later
consider, that which had been said.
In these situations, participants also considered that it was prudent to ensure
that family members or friends that were in the company of the patient at the time
were privy to the information that the paramedic provided. If others were aware of
the potential risks, they would be better prepared to respond and support the patient
should the patient’s condition deteriorate following the departure of the paramedics.
8.4 PARAMEDIC KNOWLEDGE OF THE LAW
During the individual participant interviews, I explored the reasons why
participants sought to provide patients with detailed information and their
understanding of the law as it relates to this topic. Only one participant understood
the requirement arose from a legal duty to do so,628 whereas the remaining twenty-
628 PP14 stated: ‘it’s my duty of care to make sure (the patient) is well informed’.
234 Chapter 8: Provision of Information
nine participants expressed the view that it was a necessary requirement of the
decision-making process and enabled the patient to be equipped with the information
that was required to be able to exercise their choice. One participant clearly and
succinctly summarized this by saying:
At the end of the day if you're not informed you can't make the best decision
for yourself. So that's why I try and do that. (PP1)
Participants also considered that the provision of information was a critical pre-
requisite to the assessment and determination of the patient’s decision-making
capacity, or understanding of the nature of their condition and risks associated with
their decision to refuse.629 In some cases, the patient may have knowledge of their
condition and be aware of the inherent risks associated with the condition. This
would certainly be the case if the patient was suffering from a chronic condition and
had done so for some time.
However, paramedics often attend cases in which urgent assistance is required
for a condition or injury that has occurred without warning. In many of these cases,
the patient would have had no prior knowledge of their condition or associated risks.
The participants provide the patient with information then assess if the patient
understands the information that has been provided.
In cases where the patient is exposed to a significant clinical risk, participants
are eager to assess if the patient’s decision-making capacity is commensurate with
that risk. The provision of information, followed by an assessment of the patient’s
understanding of that information, gives the participant a level of certainty regarding
the patient’s decision-making capacity in these circumstances.
She was able to understand, comprehend, retain and reiterate the information that we
gave her. I said (to her) that I want you to be able to tell me what’s going on and
what will happen. She said that ‘if I don’t do (as instructed), I could go into a coma
and I could die. (PP23)
629 This issue was discussed in Chapter 3, section 3.5 of this thesis. The first limb of the common law
definition of capacity enunciated by Thorpe J in Re C (Adult: Refusal of medical treatment) [1994] 1
WLR 290, 295, requires that the person be able to comprehend and retain treatment information,
which necessarily infers that treatment information be provided.
Chapter 8: Provision of Information 235
I communicated all of the information to him and he was able to repeat it back to me in his
own words … he was able to do that quite well. He understood the risks (of refusing
ambulance transport to hospital) and was communicating well. (PP5)
We informed him of all the potential head injury risks that may occur (including) a cerebral
haemorrhage. He acknowledged what we were telling him (regarding) the potential risks. He
understood and he could relay them back to us…. He had capacity. (PP15)
There were a number of interview cases in which the patient did not wish to
receive information from the paramedics. This did not result in the paramedic
concluding, for this reason alone, that the patient’s decision was invalid, suggesting
that the paramedic did not consider that the provision of information was a pre-
requisite or element of a valid decision to refuse.
8.5 SUMMARY
All participants in this study identified a requirement that they provide the
patient with detailed information relating to their condition or suspected condition,
and the potential risks associated with that condition and their decision to refuse
treatment and/or transport. One participant understood the requirement arose from a
legal duty to inform the patient (Research Question 3), whereas other participants
provided information to facilitate autonomy, expressing the view that it was
necessary to provide a patient with full details so that they were adequately equipped
to made decisions regarding their own health care.
A third requirement identified by participants related to the practical
assessment of a patient’s decision-making capacity, and the importance of providing
information to a patient for the purpose of facilitating that assessment. As discussed
earlier in this thesis, the first limb of the common law definition of capacity, requires
that the person is able to ‘comprehend and retain treatment information’630 which
would necessarily infer that treatment information must be provided to the person if
they are to meet this criteria. This requirement is also reflected in the first limb of
the statutory definition in Queensland631, which requires that the person is ‘capable
630 See discussion in Chapter 3, section 3.5.3 of this thesis. 631 Powers of Attorney Act 1998 (Qld), sch 3, Guardianship and Administration Act 2000 (Qld), sch 4.
236 Chapter 8: Provision of Information
of understanding the nature and effect of decisions about the matter’.632 (Research
Question 3)
Participants described how they would provide patients with treatment
information and details regarding risks, or the potential ‘effect’ of their decision, and
thereafter, request that the patient repeat the information that has been provided, and
do so using their own words, not those of the participant. The provision of
information was vital to this process, and essential in circumstances where the patient
was exposed to significant physical risk and the determination of a patient’s
decision-making capacity was challenging.
Contrary to the views expressed by focus group participants, paramedic
participants provided particulars regarding the type of information they would seek
to provide to a patient and how the information should be presented. They
considered that the information must be comprehensive to the extent that
circumstances would permit, and that every potential risk that could arise from their
decision to refuse paramedic treatment and/or transport, must be detailed.
The way the information was provided was also a very relevant consideration,
with several participants indicating that the information must be presented in such a
way that the person is able to interpret it. (Research Question 4)
Participants reported that, in some circumstances, the patient would expressly
state, or imply by conduct, that they were not interested in receiving the information
that the paramedic was seeking to deliver. If this did occur, paramedics would make
every effort to provide information, and in some cases, simply state the information
that was relevant to the patient’s circumstances, in the hope that the patient may be
listening and may consider some of the information as it is stated.
The inability to provide information to a patient for reasons that the patient did
not wish to receive it did not result in the paramedic concluding that the decision to
refuse was invalid.
632 Ibid.
Chapter 9: Key Findings and Discrepancies Between Law, Knowledge and Practice 237
Chapter 9: Key Findings and Discrepancies
Between Law, Knowledge and
Practice
9.1 INTRODUCTION
Part Three of this thesis has presented the findings of the empirical component
of this research; how do paramedics respond to a patient who has refused
recommended treatment and/or transport; their knowledge of the law that regulates
decisions to refuse; and how they apply the law in their practice.
A contextualised description of the law that regulates contemporaneous
decisions to refuse paramedic treatment and/or ambulance transport was provided
earlier in Chapter 3 of this thesis, and in chapters 5 to 8 inclusive, the findings as
they relate to each of the common categories were presented. Chapter 5 discussed
participants’ ‘initial process applied’ (section 5.6) when confronted with a patient’s
decision to refuse. Chapter 6 set out the findings of participants’ knowledge and
application of the law as it relates to ‘decision-making capacity’. Chapter 7
examined voluntariness and participants’ understanding of what constitutes a
‘voluntary decision’ and how they applied that knowledge in practice. And Chapter
8 explored participants’ knowledge of the law relating to the ‘provision of
information’ to patients, and what information they provided to patients, and how
that information was delivered.
In this chapter, the findings presented in the preceding four chapters are
summarised and then considered in the context of the regulatory framework
presented in Chapter 3 to identify discrepancies between the law, participants’
knowledge and understanding of the law, and how they apply the law in practice.
In 9.2, the key findings regarding knowledge and application in relation to the
following principles are summarised: right to refuse; valid decision; presumption of
capacity; gravity risk; voluntariness; and provision of information.
In 9.3, the discrepancies between the law and participant knowledge and
application of the law, are discussed. The first discrepancy relates the assessment
238 Chapter 9: Key Findings and Discrepancies Between Law, Knowledge and Practice
and determination of decision-making capacity in cases involving a high degree of
physical risk and reconciling the relevant legal principles; the ‘gravity of risk’ and
the ‘presumption of capacity’. The second discrepancy relates to the area of
voluntariness and participants’ knowledge of what constitutes undue influence and
how that impacts on their practice when responding to a patient that has refused.
In the preceding chapters, it has been noted that the findings of this study as
they relate to participant knowledge of the law, are inconsistent with the views
expressed by focus group participants as they pertain to paramedic knowledge. The
findings are also inconsistent with those in published research that has examined the
knowledge of other health professional groups as it relates to the law in general, or to
a specific area of their practice. The inconsistency between the findings of this
study, views of focus group participants, and findings of other research is discussed
in section 9.4 and plausible reasons for the discrepancies are offered.
9.2 KEY FINDINGS
Right to Refuse
Contemporaneous decisions regarding treatment are regulated by the common
law, which recognises that a competent adult has a right to refuse treatment, even if
the treatment is necessary to avert a serious risk of harm or to prevent an otherwise
avoidable death.633 Provided that the decision is valid,634 a paramedic is required to
respect the person’s wish.635
The paramedics who participated in this study displayed a clear understanding
of a patient’s right to decide whether to accept or reject paramedic treatment and/or
633 The legal right to refuse treatment and transport was discussed earlier in Chapter Three. See also:
Re B (Adult: Refusal of Medical Treatment) [2002] 2 All ER 449; Re T (Adult: Refusal of Medical
Treatment) [1992] 4 All ER 649; Hunter and New England Area Health Service v A (2009) 74
NSWLR 88; Brightwater Care Group (Inc) v Rossiter (2009) 40 WAR 84; Australian Capital
Territory v JT (2009) 232 FLR 322; H Ltd v J & Anor (2010) 240 FLR 402. 634 There are two requirements that must be met before a decision to refuse would be deemed valid.
The first is the person is competent to decide or has sufficient decision-making capacity at the time the
decision is made, and the second is that the decision is made voluntarily and free from any undue
influence. 635 See Hunter and New England Area Health Service v A (2009) 74 NSWLR 88. McDougall J
acknowledged that he had spoken in terms of medical treatment and hospitals and medical
practitioners however, the principles apply more broadly and include all those who administer medical
treatment 'including ambulance officers and paramedics' [41].
Chapter 9: Key Findings and Discrepancies Between Law, Knowledge and Practice 239
transport and that the right to do so is supported by the law.636 Furthermore, they
acknowledge paramedics are required to respect the patient’s decision, irrespective of
the potential clinical consequences that may arise.637
You can’t deprive (patients) of their liberty. (They) have a right to decide
what they want to do with their life. The law requires that I have to respect
their right…. Even if they are going to die, that’s still their choice. (PP14)
Participants openly stated that these decisions were made against their advice
and contrary to what they considered to be in the patient’s best clinical interests.
Notwithstanding, they repeatedly acknowledged that it is the patient’s choice and one
with which they must abide.
Different people make different choices and while someone can say, well
that’s not the right choice ….. that is not what we are there to do. We’re
there to offer people our services and information …. they’re adults and they
can make their own choices. (PP02)
I don’t agree with it, but I don’t have any other means or method to do
anything about it. At the end of the day, we are there for the patient, so I
have to respect that. (PP03)
Several participants however, held the view that in circumstances where there
was genuine and justifiable concern for the patient’s welfare, they would explore all
matter of ‘means or methods’ by which they may be able to achieve a different
outcome to that which the patient initially requested. This is discussed more fully in
the paragraphs to follow.
Valid Decision
As discussed in Chapter 3 of this thesis, there are two requirements that must
be satisfied before a contemporaneous decision to refuse medical treatment would be
deemed to be valid under the common law.638 The first requirement is that the
person is competent or has sufficient decision-making capacity at the time that the
636 Findings of this research in relation to paramedic knowledge of, and respect for, a patient’s right to
refuse were discussed in Chapter Five. 637 Twenty-four of the thirty participants specifically referred to the patient’s legal right to decide and
their obligation to respect that right. 638 See discussion in Chapter 3, section 3.4 of this thesis.
240 Chapter 9: Key Findings and Discrepancies Between Law, Knowledge and Practice
decision is purportedly made,639 and the second requirement is that the decision is
made voluntarily, in that it is free from any undue influence.640
All participants identified these two requirements and referred to them as the
‘criteria’ for a valid decision to refuse:
If a person is of sound mind, they understand the consequences of their
actions, including death, which is I guess the worst-case scenario, that
they’re happy with their own decision … If they meet all that criteria, and
they want to stay at home, then I respect that choice, absolutely. (PP26)
Participants understood that decision-making capacity involved
‘understanding’ and whilst some participants considered it was necessary to
demonstrate actual understanding, the majority of the participants correctly
identified capacity as the ability to understand the nature of their condition and the
consequences of their decision to refuse.641
Presumption of Capacity
At common law, an adult person is presumed to have the capacity to provide
consent, or refuse medical treatment, unless and until the presumption is rebutted.642
This presumption of capacity principle implies that it is incompetence or reduced
decision-making capacity that would need to be established in order to rebut the
principle, and not an assessment to determine if competence can be demonstrated.643
Whilst none of the participants referred to the ‘presumption of capacity’
principle by name, the majority of participants indicated through their interview
responses, and the descriptions they provided regarding their management of a
639 Re B (Adult: Refusal of Medical Treatment) [2002] 2 All ER 449. 640 Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649. 641 Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649. 642 See discussion in Chapter 3, section 3.4.1 of this thesis. Also: Re MB (Medical Treatment) [1997]
2 FCR 514, 553; Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290, 294; Re MB (Medical
Treatment) [1997] 2 FLR 426, 436; HE v A Hospital NHS Trust [2003] 2FLR 408, 414-5; Hunter and
New England Area Health Service v A (2009) 74 NSWLR 88; Brightwater Care Group (Inc) v
Rossiter [2009] WASC 229 [23]. 643 See discussion in Parker, above n 582, 491. The author raises concern regarding possible
inconsistencies between legal requirements and assessment procedures and findings of health
professionals tasked with assessing decision-making capacity. See also: Willmott et al, above n 80,
368. The onus of proving that there was a lack of capacity at the relevant time is on the person
alleging it.
Chapter 9: Key Findings and Discrepancies Between Law, Knowledge and Practice 241
particular case,644 that they worked on the premise that a patient was presumed to
have the capacity to make decisions, unless and until the paramedic could establish
that they did not.
This was largely demonstrated by the participant’s very sound awareness of the
numerous medical conditions and clinical circumstances that could potentially
diminish a patient’s decision-making capacity, and their insistence upon the need to
confirm the patient’s decision-making capacity at the time, rather than simply
presuming incapacity by virtue of the patient’s clinical status. Participants referred to
these conditions as ‘red flags’, aptly named to alert the paramedic of the potential for
impaired decision-making capacity and signal the need for a focused and fulsome
assessment that targeted the patient’s understanding of the nature and effect of their
condition, and the consequences of their decision regarding treatment.
Gravity of Risk
As we saw in Chapter 3, capacity is not a fixed state.645 There are several
factors, both permanent and transient, which can have varying effects on different
individuals and their capacity to make decisions about paramedic treatment. In each
case, it is important to determine if the patient has a level of decision-making
capacity that is commensurate with the decision that is to be made. The more serious
the decision in terms of the risk involved, the higher the level of capacity that is
required.646 This principle is referred to as the ‘gravity of risk’ principle. 647
The seriousness of the patient’s condition, and the gravity of risk associated
with the decision to refuse treatment and/or transport, was a factor that clearly
influenced all participants in their clinical decision-making. However, only a small
number of participants correctly identified the ‘gravity of risk’ principle by name,648
and articulated the relevance of the principle in their practice.
In each case, the participants reported that they would spend more time with
the patient involved, provide more detailed information regarding the patient’s
644 The ‘interview case’ or that case through which the participant was identified as a potential
participant in this study. 645 See discussion in Chapter 3, section 3.4.1. 646 Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649, 661; Re B (Adult: Refusal of
medical treatment [2002] 2 All ER 449, 472. 647 Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649, 661. 648 Four of the thirty participants in the study.
242 Chapter 9: Key Findings and Discrepancies Between Law, Knowledge and Practice
condition and risks, and their assessment of the patient’s understanding of the nature
and consequence of their decision would be comprehensive, detailed and
repetitious.649
Notwithstanding the lack of reference to the gravity of risk principle, it was
evident that participants made every effort to implement the principle in practice.
Participants would conduct clinical assessments and make determinations regarding
the level of risk to which the patient could be exposed and thereafter, would focus
their assessment of the patient’s understanding of those risks as they had been
explained. There were numerous case examples that were provided by participants,
however it should be noted that many of these examples involved cases in which the
patient’s clinical risk was not significant and furthermore, was capable of being
determined with certainty, and the patient’s decision-making capacity was able to be
determined.
This application of the principle challenged participants in cases that involved
a significant degree of clinical risk, and where the patient’s decision-making capacity
could not be assessed or could not be determined with certainty. This is the first area
where a discrepancy between law and practice is identified, a discussion of which
will follow below in section 9.3.
Voluntariness.
A decision to refuse paramedic treatment must be a voluntary decision and one
that is free from coercion or undue influence.650 Every decision is made with some
degree of influence, such as that offered by family members and friends, and to some
extent, health professionals during the course of providing advice. This ‘influence’
is acceptable. If, however, the extent of external influence is such 'as to persuade the
patient to depart from [their] own wishes', then that influence would be regarded as
undue.651
All participants articulated a very clear awareness of the requirement that the
patient’s decision to refuse treatment and/or transport was to be made voluntarily and
without undue influence. However, it was evident that some participants did not
649 The findings in relation to knowledge and application of this aspect of the law are discussed in
Chapter 6 at section 6.3. 650 Re T (Adult: Refusal of Medical Treatment [1992] 4 All ER 649. 651 Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649, 662.
Chapter 9: Key Findings and Discrepancies Between Law, Knowledge and Practice 243
understand the difference between acceptable influence and unacceptable influence,
such that it would amount to ‘undue influence’.652 Participants, motivated to achieve
the best possible clinical outcome for their patient, were misguided in their view that
any influence that was exerted in order to achieve that outcome, would not amount to
undue influence.
This is the second area where a discrepancy between law, knowledge and
practice was identified, a discussion of which will follow below in section 9.3. It
should however be noted that not all participants were misguided regarding this area
of the law and practice. Almost half of the participants653 cited a very accurate
understanding of the law and described the way they approached this area of clinical
practice, which was consistent with the law.
Provision of Information
There is no doubt that health professionals, legal academics and jurists value
and promote the provision of information to a patient that is relevant to the patient’s
decision. What is unclear is the legal basis, if any, upon which this information is, or
should be provided.
It is well established that a health provider has a duty to warn a patient of any
material risk of physical injury associated with proposed treatment, before the
treatment is provided.654 A failure to provide this information may give rise to an
action in negligence, if the patient were to suffer harm, but would not invalidate the
consent if the patient still received information 'in broad terms'.655
All participants in this study actively sought to provide their patient with
information relating to their condition or suspected condition and the potential risks
associated with that condition, including the consequences of their decision to refuse.
One participant understood the requirement arose from a legal duty to inform the
patient, whereas the remaining twenty-nine participants considered that it was
necessary to provide a patient with information for two reasons. Firstly, it equipped
the patient with relevant details so that they were able to make decisions about their
652 Seventeen of the thirty participants or 56% mistakenly held this view. 653 Thirteen of the thirty participants or 43%. 654 See discussion in Chapter 3, section 3.5 of this thesis. See also: Rogers v Whittaker (1992) 174
CLR 479, 489-490. 655 Rogers v Whittaker (1992) 174 CLR 479, 489-90.
244 Chapter 9: Key Findings and Discrepancies Between Law, Knowledge and Practice
own health care (facilitating autonomy). And second, information is a critical
requirement of the decision-making process and as such, essential to the assessment
and ultimate determination of the patient’s decision-making capacity (ability to take
in, retain and comprehend treatment information).
Participants did not view the provision of information as a requirement of a
valid decision to refuse. This was evidenced in cases they had attended and
discussed, in which they had concluded that the patient concerned had provided valid
refusal, yet information had not conveyed for reason that the patient did not wish to
receive it.
9.3 DISCREPANCIES BETWEEN LAW AND PARAMEDIC PRACTICE
There are two areas identified in this thesis in which discrepancies between the
laws, paramedic knowledge thereof, and paramedic practice occurred. The first area
relates to the assessment of decision-making capacity where the application of the
‘gravity of risk’ principle is being applied, while at the same time, the paramedic is
reconciling that principle with the ‘presumption of capacity’ principle. This issue
arose in cases involving a patient who was exposed to a significantly high level of
clinical risk, and where the determination of the patient’s level of decision-making
capacity was not possible, or not able to be determined with any reasonable degree of
certainty.
The second area of discrepancy related to the requirement that decisions to
refuse must be voluntary and free from undue influence.
Assessment of Decision-Making Capacity: Reconciling Relevant Legal
Principles
In cases involving a patient refusal and a high degree of clinical risk, such that
the patient may be exposed to irreparable harm or death, the paramedic will assess
the patient’s decision-making capacity. If capacity is assessed to be absent, then the
presumption of capacity principle will be rebutted. However, if there is no evidence
that capacity is absent, the presumption of capacity principle would continue to
Chapter 9: Key Findings and Discrepancies Between Law, Knowledge and Practice 245
apply,656 and the level of decision-making capacity required, would need to be
measured against the level of risk as assessed.657
From a functional perspective, the paramedic would need to first determine the
level of risk and thereafter, a level of decision-making capacity that would be
considered to be commensurate with this risk.658 Once that determination is made,
the paramedic would then be required to evaluate the patient’s decision-making
capacity and determine if it meets that standard and is commensurate with the level
of risk.659
The paramedic may encounter a number of difficulties navigating this course.
In the first instance, the paramedic may not be able to determine with certainty, the
level of risk to which the patient is exposed and thereafter, may not be able to assess
the patient’s decision-making capacity. As we discovered in Chapter 6, lack of
access to diagnostic aids and other resources, coupled with an uncooperative patient
and competing clinical priorities at the scene, could hinder both the physical
assessment as to risk, and the assessment of the patient’s decision-making capacity.
In two of the interview cases that were examined during this research, the
participants involved concluded, without a fulsome clinical assessment, that the
patient’s condition carried a high degree of risk. It is acceptable to make
assumptions of this kind in circumstances where the risk, or likely risk, is abundantly
clear upon arrival, or where relevant clinical details have been conveyed to the
paramedic prior to arrival at the scene.660
In both cases, the patients refused to provide consent to allow the paramedics
to conduct a clinical assessment, and refused to respond to any questions, the
answers to which would assist the paramedic to determine each patient’s level of
decision-making capacity. In view of the significant physical risk to which these
patients were possibly exposed, coupled with the absence of information in order to
656 Re B (Adult: Refusal of medical treatment [2002] 2 All ER 449, 472; Re PVM [2002] QGAAT 1,
[40]-[41]. 657 Applying the principle of the gravity of risk according to Re T (Adult: Refusal of Medical
Treatment) [1992] 4 All ER 649. 658 Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649, 661. 659 Ibid. 660 For example, at the scene of a road traffic crash where the mechanisms of forces involved are
clearly evident and consistent with serious injuries, or where a visual inspection of the patient
demonstrates signs that the patient is significantly compromised, or in circumstances were another
health provider has already assessed the patient.
246 Chapter 9: Key Findings and Discrepancies Between Law, Knowledge and Practice
form a view regarding decision-making capacity, both participants formed the view
that their patient lacked the capacity to refuse. This decision resulted in a
discrepancy between that which is required under the law, and the paramedic’s
practice.
In situations involving a high degree of risk, the paramedic is still required to
assess the patient’s decision-making capacity. If capacity is assessed to be absent or
fails to meet the requisite level commensurate with the degree of risk, then the
presumption of capacity principle will be rebutted; if there is no evidence that it is
absent, then the principle will continue to apply.661
However, compliance with the law as set out in the preceding paragraphs could
result in an untenable situation that almost certainly was never contemplated by the
law makers. It would see the patient’s decision respected, no assessment or
treatment provided, and the paramedics departing the scene, leaving the patient in
accordance with their wish that they do so, be it in their home, on the side of a busy
road, on a cliff face, or in an open paddock, and alone.
The reason for this discrepancy could be related to a knowledge deficiency.
The reason could also be related to paramedic paternalism to avoid the
untenable situation described above, albeit one that is not supported by the law, but
will ensure that the patient is transported to a safe place where both the degree of
clinical risk, and the level of decision-making capacity, can be determined with
certainty.
Voluntary Decision and Influence: Knowledge and Application of the Law
A contemporaneous decision to refuse treatment and/or transport must be
voluntary, that is, it must be free from coercion, undue influence, or false statements.
Whilst all participants were cognisant of this requirement, over half of the
participants in this study failed to understand the difference between influence that
was acceptable, and influence that was not.662 This lack of understanding, translated
into practice, results in a discrepancy between what is required by law and actual
paramedic practice.
661 Re B (Adult: Refusal of medical treatment [2002] 2 All ER 449, 472; Re PVM [2002] QGAAT 1,
[40]-[41]. See also, Parker, above n 582. 662 Seventeen of the thirty participants.
Chapter 9: Key Findings and Discrepancies Between Law, Knowledge and Practice 247
The Court of Appeal in Re T (Adult: Refusal of Medical Treatment)663 provided
a clear distinction between that which was acceptable influence and that which
would be undue influence in the eyes of the law. Essentially, if the external
influence was such 'as to persuade the patient to depart from [their] own wishes', then
that influence would be regarded as undue.664 Factors that would be relevant when
considering the influence that was applied would include the patient’s physical and
emotional state, which may weaken the patient's strength of will at the time the
decision is made, and the relationship that exists between the patient and the person
exerting the influence, such as a family member or health provider.665
It would not be unreasonable to suspect that a patient’s physical and emotional
state could be significantly weakened by the very circumstances that necessitated the
request for paramedic attendance. It is also possible that a family member or a
paramedic could, easily overbear a patient in a compromised physical or emotional
state.
Motivated by clinical circumstances and a genuine commitment to achieve the
best possible outcome for their patients, participants engaged in activities ranging
from the application of pressure, use of scare tactics and making statements that
misrepresented the truth, in order to convince a patient to reverse their decision to
refuse paramedic treatment and transport, and agree to that which the paramedic
recommended. The degree of influence applied by the participants increased in
circumstances where the patient was exposed to significant clinical risk. Participants
would also retain family members and those that were close to the patient, to apply
pressure to achieve the same outcome.
Participants were of the mistaken belief that any influence that achieved an
outcome that would see the patient receive necessary paramedic treatment, and
transport to a hospital, was not undue influence, for reason that it was in the patient’s
best clinical interest.666
The reason for this discrepancy could be related to a knowledge deficiency.
663 Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649. 664 Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649, 669. 665 Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649, 662. 666 The findings as they relate to this point are presented in Chapter 6 of this thesis.
248 Chapter 9: Key Findings and Discrepancies Between Law, Knowledge and Practice
Another plausible reason relates to paramedic paternalism, and genuine fear for
the patient’s safety if the patient is not provided with paramedic treatment and
thereafter, safely transported to a hospital or health facility.
You're thinking in the back of your head I just hope this person lives through
the night. I don't want to see this person die of the consequences of that. Or
you're hoping that they just change their mind. (PP29)
Notwithstanding their altruistic motives, the participant’s actions in this regard
would be inconsistent with the law regarding voluntariness.667
9.4 PARAMEDIC KNOWLEDGE OF THE LAW
The findings of this study insofar they relate to paramedic knowledge of the
law and patient refusal of treatment, are not consistent with the views expressed by
focus group participants. The findings are also inconsistent with published research
that has examined health provider understanding of various areas of the law that
relates to their respective areas of clinical practice. These inconsistencies, and
possible explanations for why they exist, are discussed below.
Inconsistencies with Focus Group Views
Focus group participants across each of the three group discussions opined that
their colleagues had a very poor understanding of the law relating to patient refusal,
and that they were ‘floundering’ in several areas of their practice due to this lack of
knowledge and experience.668 This view was influenced by a combination of factors,
mostly their experience conducting clinical audits of cases in which colleagues had
responded to a patent that had refused paramedic treatment and/or ambulance
transport.
One of the many tasks performed by paramedics in the role of either OIC or
CSO, is the conducting of routine and systematic clinical audits of cases that have
occurred within their geographical area.669 The purpose of clinical auditing is not
667 Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649, 669. 668 Focus Group 001.3 669 Clinical audits are conducted using a clinical audit and review tool (CART) that enables clinical
practice to be measured against prescribed standards. Where variations between that which is
required and that which is provided are identified, the variation is reported using a scale of one to four.
A variation of one is deemed to be insignificant whereas a variation of four would indicate a major
deviation from expected standard.
Chapter 9: Key Findings and Discrepancies Between Law, Knowledge and Practice 249
punitive, but rather a process that facilitates the monitoring and evaluation of
ambulance services as they are provided, and a means by which feedback can be
used to improve and maintain quality care.670 Cases that result in a non-transport671
are mandatorily subjected to clinical audits to be conducted, in the first instance, at
the station level. The decision not to transport a patient could arise from either one of
two circumstances; the patient refused transport against advice; or the paramedic did
not consider that the patient’s condition warranted transport. A clinical audit of such
a case involves a review of the clinical record or eARF that was compiled by the
paramedic that attended the patient. 672
The shortcomings identified by focus group participants related specifically to
paramedics’ identification of what constituted a true refusal; how paramedics
determined that a patient had the requisite decision-making capacity; the manner and
content of communications between the paramedic and the patient at that time; and
their knowledge of voluntariness and the extent to which paramedics influenced their
patient’s decision-making process.
With the exception of the criticism relating to paramedic influence, the
propositions advanced by focus group participants were inconsistent with the
findings of this research. As mentioned above, the clinical audit of cases involves a
review of the clinical record or eARF, and it is possible that focus group participants
reached their conclusions solely on the basis of the content of the eARFs that were
audited, many of which may not have reflected the comprehensive assessment
undertaken and considered by the paramedic in attendance, nor the detailed
information that was communicated to the patient in relation to their condition,
proposed treatment and risks.
Inconsistencies with Published Research
There has been no published research in Australia, or overseas, concerning
paramedics’ knowledge of the law relating to areas of their clinical practice, and
more specifically, the law relating to decisions to refuse paramedic treatment and/or
670 Department of Health, Queensland Ambulance Service, Clinical Governance Framework 2017-
2020, 31. 671 Where a paramedic has responded to a request for ambulance services; has seen the person for
whom the services are requested; and then left the scene without transporting the person to a hospital
or health facility 672 The electronic Ambulance Report Form (eARF).
250 Chapter 9: Key Findings and Discrepancies Between Law, Knowledge and Practice
transport. There are however, publications that report on research that has examined
the knowledge of other health professional groups in relation to the law generally,
and some that have examined knowledge of specific areas of the law that relate to the
health professionals’ area of clinical practice. It is noted however, that publications
of research in this regard are limited.
In 2016, Willmott et al673 published the findings of a study that explored
doctors’ understanding of the law that governs the provision of futile medical
treatment at the end of life. Participants were recruited from three participating
hospitals in Queensland and included 96 doctors that were qualified across a range of
medical specialities that commonly encounter patients as they near the end phase of
their life. The study found that doctors had a poor knowledge of both the common
law and legislation governing this area of practice. The authors did however note
that this is a complex area of the law, and particularly so in Queensland where it
differs depending on whether a person has decision-making capacity.674
White et al675 published the results of a study in 2014, in which the authors
examined doctors’ level of knowledge of the law relating to the withholding and
withdrawing of life-sustaining treatment. Participants involved in this study were
also medical specialists and were practising in Queensland, New South Wales and
Victoria, in areas of medical practice that would require decisions to be made
regarding the withdrawing or withholding of life-sustaining treatment. The authors
reported that they found ‘critical gaps’ in doctor’s legal knowledge as it related to
this area of their clinical practice. An interesting observation made by the authors,
was that the doctors who had received recent and relevant professional development,
had a greater knowledge than their colleagues who had not.676
673 Lindy Willmott, Ben White, Eliana Close, Cindy Gallois, Malcolm Parker, Nicholas Graves, Sarah
Winch, Leonie Callaway, and Nicole Sheppard, ‘Futility and the law: knowledge, practice and
attitudes of doctors in end of life care’ (2016) 16 (1) QIT Law Review 54. 674 If a person has decision-making capacity, it is the common law that governs decisions relating to
end of life, whereas provisions in the Powers of Attorney Act 1998 (Qld) and the Guardianship and
Administration Act 2000 (Qld), collectively referred to as the guardianship regime, govern decisions
where a person has impaired decision-making capacity. 675 Ben White, Lindy Willmott, Colleen Cartwright, Malcolm Parker and Gail Williams, ‘Doctors’
knowledge of the law on withholding and withdrawing life-sustaining medical treatment’ (2014 201
(4) Medical Journal Australia, 229. 676 Ibid, 231.
Chapter 9: Key Findings and Discrepancies Between Law, Knowledge and Practice 251
Other studies have reported similar findings. Darvall, McMahon and
Pitermann677 examined general medical practitioners’ knowledge of three key areas
of the law that were deemed to be relevant to the practice of general medicine in the
community. The areas included: risk disclosure; ownership and access to medical
records; and substitute decision-making in circumstances involving a patient with
impaired decision-making capacity. The results of their study indicated that a
significantly high proportion of respondents had ‘inadequate understanding’ of the
law relating to the three areas examined.678
These findings are not limited to health professionals that have studied and are
practicing in Australia. In 2006, Hariharan et al679 surveyed 159 doctors and nurses
working at the Queen Elizabeth Hospital in Barbados to determine their knowledge,
attitude and practice in relation to health care ethics and law. The authors concluded
that the respondents did not possess an adequate knowledge of the law pertaining to
their professional practice, and furthermore, that they were unaware of common
ethical problems.680
The inconsistencies between the findings of this study, and those that have
been published elsewhere are likely to relate to a combination of plausible factors.
The breadth and complexity of the relevant law; the extent to which research
participants had been exposed to recent and relevant education and professional
development relating to the specific area or areas of the law; and the ease with which
research participants can readily access relevant information about the law that is the
subject of their knowledge assessment, are factors that should be considered when
comparing and contrasting the findings of this study with those that have been
published previously.
This study examined participants’ knowledge and application of a relatively
narrow area of the law that is arguably clear and succinct. Whilst there has been a
division of judicial opinion and associated academic commentary with respect to the
677 Leanna Darvall, M McMahon and L Piterman, ‘Medico-Legal Knowledge of General Practitioners;
Disjunctions, Errors and Uncertainties’ (2001) 9 Journal of Law and Medicine, 167. 678 Ibid, 179. 679 Seetharaman Hariharan, Ramsh Jonnalagaddo, Errol Walrond, and Harley Moseley, ‘Knowledge,
attitudes and practice of healthcare ethics and law among doctors and nurses in Barbados’ (2006)
BMC Medical Ethics http://bmcmedethics.biomedcentral.com/articles/10.1186/1472-6939-7-7 at 21
May 2017. 680 Ibid, 8-9.
252 Chapter 9: Key Findings and Discrepancies Between Law, Knowledge and Practice
provision of information to a patient that has contemporaneously refused
treatment,681 the uncertainty generated by this division would be unlikely to impact
on a paramedic’s broader understanding of the fundamental and uncomplicated areas
of this law.
The findings of research that has examined the legal knowledge of nurses
and/or doctors, both in Australia and overseas, have examined participant knowledge
of areas of the law that are, by comparison, complex and potentially challenging to
interpret.682 In addition to the complexity of the laws examined, some studies have
looked at an extremely broad area of health related laws, as opposed to a narrow and
very specific area of law that would apply to a clearly defined area of practice.
In the study conducted by Hariharan et al,683 the researchers distributed over
400 self-administered questionnaires to hospital personnel of varying levels of
experience and qualifications.684 The questionnaire was broad and sought to
determine participants’ knowledge of health law and ethics generally, and their
perception of the role of health care ethics committees. Only questionnaires that had
been completed by doctors or nurses in the hospital were subsequently examined for
the purpose of the study. Whilst there was no reference in the publication to any
limitations of the study, it could be argued that it would be difficult to determine the
level of legal knowledge of the doctor and nurse participants in circumstances were
the areas of the law that are to be assessed are extremely broad and potentially
transcend multiple legal doctrines and legislative instruments.
By contrast, the study conducted by Willmott et al685 examined doctors’
understanding of a narrow area of the law that was relevant to each participant’s area
of clinical practice. The participants were medical specialists, albeit practicing in
difficult fields of medical practice, and the area of the law that was the subject of
participant knowledge assessment was that which governs the provision of futile
681 See Chapter 5, section 5.4 above. 682 Darvall et al, above n 683 examined participant knowledge of three broad areas of the law that
were not interrelated; and Willmott et al, above n 679 examined the complex area of the law relating
to end of life decisions. 683 Hariharan et al, above n 685. 684 A total of 373 questionnaires were returned. Questionnaires that had been completed by either a
doctor or nurse were then studied to determine legal knowledge, attitude and practice. There were
159 questionnaires completed by nurses from all levels from staff nurse to nurse in charge, and
doctors comprising junior doctors to specialist consultants. 685 Willmott et al, above n 679.
Chapter 9: Key Findings and Discrepancies Between Law, Knowledge and Practice 253
medical treatment at the end of life. The authors expressly noted that this area of the
law is complex, and that the complexity is compounded by the fact that there are
variations to the law as it applies in Queensland, when compared with other
Australian states and territories.686
The educational opportunities that each participant has been afforded; the
extent to which those opportunities exposed the research participant to the relevant
law; and the recency of that experience, are factors that should be considered when
evaluating the legal knowledge of research participants. White et al687 in their study
of doctors’ knowledge of the law relating to the withholding and withdrawing of life
sustaining measures, observed that participants who had attended recent and relevant
professional development relating to the topic, demonstrated a greater knowledge
than their colleagues.688
Each of the participants in this study had been exposed to very recent and
relevant professional development. Most participants completed their paramedic
education in Queensland, either through a University or the QAS Education Centre
and were exposed to relevant education relating to patient decision-making and
specifically, the law that regulates refusal of paramedic treatment and/or transport.
In addition to their undergraduate or pre-employment education, participants in this
study were afforded the opportunity to revise and update their knowledge relating to
the topic and did so through QAS employment induction programs and on-going
continuing education programs offered by the QAS.
In addition to recent and relevant professional development, participants in this
study were able to readily avail themselves of information about the law that
regulates decisions to refuse paramedic treatment and/or transport, and its
application. As discussed earlier689, each participant had received, for their exclusive
use, a QAS issued iPad which enabled them to access QAS practice guidelines and
procedures. The guidelines and procedures that relate to this topic include clear and
686 Ibid 71. The authors noted that the law was complex and perhaps more so in Queensland were the
law differs if a person has decision-making capacity. It is the common law that governs decisions
relating to end of life, whereas provisions in the Powers of Attorney Act 1998 (Qld) and the
Guardianship and Administration Act 2000 (Qld), collectively referred to as the guardianship regime,
govern decisions where a person has impaired decision-making capacity. 687 White et al, above n 681. 688 Ibid, 231. 689 See discussion in Chapter 5, section 5.3 of this thesis.
254 Chapter 9: Key Findings and Discrepancies Between Law, Knowledge and Practice
concise information about the law that regulates refusal of paramedic treatment and
ambulance transport, and practical information regarding its application in the pre-
hospital setting. Access to this information would undoubtedly reinforce each
participant’s understanding of the law, something that participants in other studies
may not have been afforded.
There has been little or no comparative research conducted involving
paramedics and their knowledge of law that relates to their practice. The
inconsistencies between the findings of this study and that of previously published
research involving a cross section of other health care providers has been outlined,
and plausible explanations for those inconsistencies have been provided. In essence,
this study examined knowledge of a narrow and clearly defined area of the law, in a
group of participants that had received recent and relevant education relating to the
area and had a means by with they could clarify and reinforce that knowledge on a
daily basis.
9.5 SUMMARY
This chapter has presented a summary of the findings of this thesis as they
relate to the empirical component of this research: participants’ knowledge and
application of, and compliance with, the law that regulates decisions to refuse
treatment and/or transport.
The chapter concludes that participants did not have an in-depth knowledge of
the law however, the thesis has identified that they have a very practical working
knowledge of the relevant legal principles and how the principles should be applied
in their practice.
Participants understood that a patient has a right to refuse treatment and/or
transport and that the paramedic must respect their decisions in this regard, if the
decision is deemed to be valid. The elements of a valid decision to refuse, decision-
making capacity and voluntariness were correctly identified.
Whilst participants clearly articulated the requirements of a voluntary decision,
just over half of the participants failed to understand what constituted undue
influence in this context, expressing the view that any influence that resulted in a
decision that was in the patient’s best clinical interests, would not be undue.
Chapter 9: Key Findings and Discrepancies Between Law, Knowledge and Practice 255
This erroneous knowledge translated into their practice and, in the case of this
particular group of participants, they unduly and unlawfully exerted influence in the
hope that the patient would change his or her mind and consent to paramedic
treatment and/or transport.
Participants may not have referenced the principles such as ‘presumption of
capacity’ or ‘gravity of risk’ by name, when discussing the assessment of decision-
making capacity, it was clear from their responses that they understood these
principles, or at least how they were to be applied.
However, participants were challenged in cases that required the consideration
of both principles, and where limited clinical information was available to assist the
participant in this regard.
Cases that involved a high degree of clinical risk, and little or no information
that would enable the assessment of decision-making capacity, were described as
particularly challenging. In the absence of any clear direction as to how they should
reconcile these two legal principles in these unique and challenging circumstances,
participants would conclude that the patient lacked the requisite decision-making
capacity and thereafter, facilitated ambulance transport were the outcome of these
assessments could be determined with certainty. To do otherwise, could have
resulted in an adverse clinical outcome.
The chapter concluded with a discussion regarding the inconsistencies between
the findings of this study as they relate to participant knowledge of the law, and the
views expressed by focus group participants, and the findings of this study when
compared with the findings in published research that examined knowledge of other
health professional groups. Plausible explanations were provided to justify the
inconsistencies.
257
PART FOUR: CONCLUSIONS AND DISCUSSION
Chapter 10: Conclusions, Discussion and Opportunity for Further Research 259
Chapter 10: Conclusions, Discussion and
Opportunity for Further
Research
10.1 INTRODUCTION
This thesis aims to address several gaps in the literature regarding patient
refusal of paramedic treatment and ambulance transport, and the manner in which
paramedics respond to a patient following their decision to refuse treatment or
transport against advice. This thesis presents the results of a quantitative analysis
that examines the frequency, circumstances and demographic characteristics of
patients that refuse paramedic treatment; a contextualized legal analysis of the
regulatory framework in which these decisions are made; and a qualitative analysis
that examines paramedic knowledge and application of this area of the law in their
practice. The aim of this research was to inform, guide and ultimately promote
paramedic decision-making through use of a legal framework, when responding to a
patient refusal.
This concluding chapter summarises the findings of this research and their
contribution to knowledge and presents opportunities for future research.
10.2 SUMMARY OF FINDINGS – RESEARCH QUESTIONS
The research sought to address five questions:
Question One: How frequently are paramedics required to respond to a refusal of
recommended treatment and/or transport and in what circumstances?
Question Two: What is the law that would apply in circumstances where a patient
refuses paramedic treatment and/or transport?
Question Three: What do paramedics understand of the law relating to patient
decision-making and refusal of paramedic treatment and/or ambulance transport?
Question Four: What is the process that is applied by paramedics to determine if the
patient’s decision to refuse paramedic treatment and/or ambulance transport is
valid?
260 Chapter 10: Conclusions, Discussion and Opportunity for Further Research
Question Five: To what extent does the process applied by paramedics (to determine
if a patient’s decision to refuse is valid) comply with the law?
Epidemiological and demographic characteristics of patients that refuse
paramedic treatment and transport
Question 1. How frequently are paramedics required to respond to a refusal of
recommended treatment and/or transport and in what circumstances?
In Queensland, a patient will refuse paramedic treatment and/or transport every
50 minutes. A staggering 16,462 patients representing 2.6% of the total number of
patients attend by Queensland paramedics in a twelve-month period, refused to
provide consent for treatment and/or transport that was recommended by the
attending paramedic.
The key findings of this contextual analysis suggest that the cohort of patients
who refuse treatment and/or transport is not significantly different from the general
patient population in terms of their age, gender and location of the incident. The rate
of refusal of treatment and/or transport does not differ by geography or by time of
day.
The majority of refusals occur at a private residence, which suggests that the
patient, or someone that is known to the patient, made the request for paramedic
assistance. This does raise questions as to why assistance was requested but then
declined. It is understandable that when an event occurs in a public place, a third
person may have called for assistance only to see that assistance declined by the
patient. However, this dynamic is less likely in a private residence.
The overwhelming majority of patients that refuse suffer from a medical
complaint or have sustained an injury or a fall. This is counter to the presumption
that this is a cohort of challenging patients with troublesome social, mental and drug
or alcohol related problems.690
Whilst this analysis was conducted in Queensland using data collected by the
QAS, there is no reason why the findings of this analysis would not be representative
690 Focus group participants identified alcohol intoxication and/or drug toxicity as circumstances that
challenged paramedics when responding to the patient’s refusal of recommended treatment and / or
transport. See discussion in Chapter 5 of this thesis.
Chapter 10: Conclusions, Discussion and Opportunity for Further Research 261
of the epidemiological and demographic characteristics of patients that refuse
paramedic treatment and/or ambulance transport in other Australian jurisdictions.
The regulatory framework and refusal of treatment and transport
Question 2. What is the law that would apply in circumstances where a patient
refuses paramedic treatment and /or transport?
Contemporaneous decisions regarding treatment are regulated by the common
law, which recognises that a competent adult has a right to refuse treatment, even if
the treatment is necessary to avert a serious risk of harm or to prevent an otherwise
avoidable death.691
Provided that the decision is valid,692 a paramedic is required to respect the
person’s wish.693 There are two requirements of a contemporaneous decision to
refuse; the person must have sufficient decision-making capacity at the time that the
decision is made,694 and the decision is to be made voluntarily and free from undue
influence.695
Capacity involves ‘understanding’. An adult person is presumed to have the
capacity to provide consent, or refuse medical treatment, unless and until the
presumption is rebutted.696 The level of decision-making capacity must be
commensurate with the decision that is to be made. The more serious the decision in
terms of the risk involved, the higher the level of capacity that is required.697
691 The legal right to refuse treatment and transport was discussed earlier in Chapter Three. See also:
Re B (Adult: Refusal of Medical Treatment) [2002] 2 All ER 449; Re T (Adult: Refusal of Medical
Treatment) [1992] 4 All ER 649; Hunter and New England Area Health Service v A (2009) 74
NSWLR 88; Brightwater Care Group (Inc) v Rossiter (2009) 40 WAR 84; Australian Capital
Territory v JT (2009) 232 FLR 322; H Ltd v J & Anor (2010) 240 FLR 402. 692 There are two requirements that must be met before a decision to refuse would be deemed valid.
The first is the person is competent to decide, or has sufficient decision-making capacity at the time
the decision is made, and the second is that the decision is made voluntarily and free from any undue
influence. 693 See Hunter and New England Area Health Service v A (2009) 74 NSWLR 88. McDougall J
acknowledged that he had spoken in terms of medical treatment and hospitals and medical
practitioners however, the principles apply more broadly and include all those who administer medical
treatment 'including ambulance officers and paramedics' [41]. 694 Re B (Adult: Refusal of Medical Treatment) [2002] 2 All ER 449. 695 Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649. 696 Re MB (Medical Treatment) [1997] 2 FCR 514, 553; Re C (Adult: Refusal of Treatment) [1994] 1
WLR 290, 294; Re MB (Medical Treatment) [1997] 2 FLR 426, 436; HE v A Hospital NHS Trust
[2003] 2FLR 408, 414-5; Hunter and New England Area Health Service v A (2009) 74 NSWLR 88;
Brightwater Care Group (Inc) v Rossiter [2009] WASC 229 [23]. 697 Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649, 661; Re B (Adult: Refusal of
medical treatment [2002] 2 All ER 449, 472.
262 Chapter 10: Conclusions, Discussion and Opportunity for Further Research
A decision to refuse paramedic treatment must be a voluntary decision and one
that is free from coercion, undue influence or false information.698
Health professionals, legal academics and jurists value and promote the
provision of information to a patient that is relevant to the patient’s decision to refuse
however, the legal basis upon which this information is provided within the scope of
this regulatory framework is unclear.699
Paramedic knowledge and understanding of the law that regulates
decisions to refuse treatment and transport
Question 3. What do paramedics understand of the law relating to patient
decision-making and refusal of paramedic treatment and/or ambulance transport?
The participants in this study had a superficial but reasonable knowledge of
the law that regulates patient decision-making and decisions to refuse paramedic
treatment and/or ambulance transport.
Participants understood that a person has a legal right to refuse recommended
treatment, and that paramedics were required to respect the person’s decision to do
so, irrespective of the potential clinical consequences that may flow from that
decision.700
All participants correctly identified that the patient’s decision to refuse
treatment and/or transport must be a valid decision, which they correctly identified as
one that was made voluntarily and in circumstances where the patient had the
capacity to make the decision at hand.
Participants clearly understood that decision-making capacity involved
understanding, and more specifically, understanding of the nature and consequences
of their decision.701
Whilst none of the participants in the study expressly referred to the
presumption of capacity principle, their responses indicated that they worked from
the premise that adult patients are presumed to have the capacity to make decisions,
698 Re T (Adult: Refusal of Medical Treatment [1992] 4 All ER 649. 699 Rogers v Whittaker (1992) 174 CLR 479, 489-90. 700 A total of twenty-four of the thirty participants specifically referred to the legal right to decide, and
their obligation to respect the patient’s decision. 701 Re C (Adult: Refusal of Medical Treatment) [1994] 1 WLR 290.
Chapter 10: Conclusions, Discussion and Opportunity for Further Research 263
unless and until it can be demonstrated that they don’t.702 To that end, the
participants identified a range of circumstances that could potentially impact a
person’s decision-making capacity, and alert the paramedic of the requirement to
conduct a fulsome and focused assessment to determine if this was the case, thereby
rebutting the presumption.
The seriousness of the patient’s condition, and the gravity of risk associated
with the decision to refuse treatment and/or transport, was a factor that clearly
influenced all participants in their clinical decision-making. Only a small number of
the participants referred to the ‘gravity or risk’ principle by name and offered an
explanation of the principle in operation. Some participants considered that the
gravity of risk as assessed, guided their practice in relation to other factors, such as
the amount of information that the paramedic was required to provide to the patient
regarding their condition and the potential risks that could arise as a consequence of
their refusal.
All participants were cognisant of the requirement that a patient’s decision to
refuse treatment and/or transport was to be made voluntarily and without undue
influence.703 However, it was clear that more than half of the participants lacked a
clear understanding of what amounted to undue influence. The comments of these
participants indicated that they erroneously believed that any influence resulting in
the patient accepting recommended paramedic treatment, would not be regarded as
undue influenced for reason that it was well-intentioned and was aimed at achieving
an outcome that was, in the opinion of the participant, in the patient’s best clinical
interests.
One area of the common law that requires clarification is that which relates to
the provision of information to a patient regarding their condition and the
consequences of the decision to refuse. Notwithstanding the uncertainty of the law, it
was clear that participants attach a great deal of significance to this area of their
practice. Only one participant considered that there is a legal duty to provide this
702 Re MB (Medical Treatment) [1997] 2 FCR 514, 553; Re C (Adult: Refusal of Treatment) [1994] 1
WLR 290, 294; Re MB (Medical Treatment) [1997] 2 FLR 426, 436; HE v A Hospital NHS Trust
[2003] 2FLR 408, 414-5; Hunter and New England Area Health Service v A (2009) 74 NSWLR 88;
Brightwater Care Group (Inc) v Rossiter [2009] WASC 229 [23].
See discussion in Chapter 6 of this thesis. 703 Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649. See discussion in Chapter 7 of
this thesis.
264 Chapter 10: Conclusions, Discussion and Opportunity for Further Research
information. The remaining participants viewed the provision of information from a
pragmatic perspective. They believed that it was necessary to provide a patient with
relevant information so that the patient could make the best possible decision him or
herself. Participants also believed that the provision of information was critical pre-
requisite to the assessment and determination of the patient’s decision-making
capacity or understanding of the nature of their condition and risks associated with
their decision to refuse.704
The findings of this study insofar as they relate to Research Question Three are
not consistent with the views expressed by focus group participants regarding their
colleagues’ knowledge as it related to the law that regulated patient refusals. The
findings are also inconsistent with published research that has examined health
providers’ understanding of various areas of the law that relates to their respective
areas of clinical practice. These inconsistencies, and possible explanations for why
they exist, were discussed in Chapter 9, section 9.4.
The views held by focus group participants were principally formulated as a
result of their audit of clinical records relating to cases involving patient refusals.
The records may not have comprehensively captured an individual paramedic’s
response to a patient that had refused treatment and/or transport, nor enabled an
accurate assessment of the paramedic’s knowledge and application of the law from
the few succinct paragraphs that appear in the record. These factors may have
contributed to the inconsistency.
The published research examining knowledge of various aspects of the law by
members of other health professional disciplines involved very different
circumstances to those in this study. Participants in this study had been exposed to
recent and relevant professional development relating to the topic and had readily
available access to procedural guidelines and other material that reinforced their
professional development, and enhanced their understanding of the law.
704 This issue was discussed in Chapter 3, section 3.5 of this thesis. The first limb of the common law
definition of capacity enunciated by Thorpe J in Re C (Adult: Refusal of medical treatment) [1994] 1
WLR 290, 295, requires that the person be able to comprehend and retain treatment information,
which necessarily infers that treatment information be provided.
Chapter 10: Conclusions, Discussion and Opportunity for Further Research 265
Paramedic application of the law in practice
Question Four: What is the process that is applied by paramedics to determine if the
patient’s decision to refuse paramedic treatment and/or ambulance transport is
valid?
Participants adopted a structured approach when turning their mind to the
question of whether a patient’s decision to refuse paramedic treatment and/or
transport was valid. The approach was necessarily modified having regard for the
specific circumstances of each case.705
Twenty-six of the thirty participants were guided by the relevant QAS clinical
practice guidelines that specifically address patient-decision making and refusal of
treatment and/or transport against advice.706 The latter of the two guidelines was
found to be inconsistent with the law insofar as it describes four elements of a valid
contemporaneous decision to refuse: voluntariness; capacity; informed; and
applicable in the current circumstances, whereas there are only two elements. The
law is unsettled with respect to the requirement that a contemporaneous decision to
refuse be informed, and the final of the four listed elements is not relevant to a
contemporaneous decision.
When assessing capacity, participants focused on whether the patient’s level of
understanding was commensurate with the level of risk (gravity of risk principle).
Their assessment was by no means conducted in isolation and formed part of a
comprehensive and holistic evaluation of the patient.
Participants would provide patients with information regarding their condition
and risks, and then sought to ascertain if a patient was capable of retaining that
information.707 Thereafter, they would assess comprehension by asking patients to
describe, using their own words, what they understood the risks to be.708 Participants
would encourage questions as a means of demonstrating that they were weighting up
705 See discussion in Chapter 5 of this thesis. 706 Queensland Health (Queensland Ambulance Service), Clinical Practice Manual, Guide to Patient
Decision Making in Ambulance Services, April 2017; Patient Refusal of Treatment or Transport, 2016
<https://www.ambulance.qld.gov.au/clinical.html>; and State of Queensland (Queensland Ambulance
Service), Clinical Practice Manual, Patient Refusal of Treatment or Transport, October 2017<
https://www.ambulance.qld.gov.au/clinical.html>. 707 Consistent with the first limb of the common law test enunciated by Thorpe J in Re C (Adult:
Refusal of Medical Treatment) [1994] 1WLR 290. 708 Ibid.
266 Chapter 10: Conclusions, Discussion and Opportunity for Further Research
the information as they contemplated their decision.709 In cases where the provision
of information was not possible or rejected by the patient, participants did not
conclude that a decision to refuse was invalid for reason that it was not informed.
All participants acknowledged that the patient’s decision must be voluntary and
not unduly influenced. Notwithstanding, half of the participants engaged in activities
ranging from the application of pressure, retaining family to apply pressure, use of
scare tactics, and making statements that misrepresented the truth in order to
convince a patient to reverse their decision to refuse paramedic treatment and
transport, and agree to that which the paramedic recommended. The greater the
degree of risk, the greater the degree of influence applied.
10.2.5 Discrepancies between law and practice
Question Five: To what extent does the process applied by paramedics (to determine
if a patient’s decision to refuse is valid) comply with the law?
There were two areas identified in which discrepancies existed as between the
law relating to patient refusal of paramedic treatment and/or transport, and paramedic
practice.
The first area relates to the assessment of decision-making capacity, which
involved the application of the ‘gravity of risk’ principle and reconciling that
principle with the ‘presumption of capacity’ principle in specific circumstances. The
issue only arose in cases involving patients that were exposed to a significantly high
level of clinical risk, and where the determination of the patient’s requisite decision-
making capacity was not possible or could not be determined with certainty.
Where there was doubt with respect to the patient’s decision-making capacity,
paramedics would ere on the side of caution and explore a means by which the
patient could be provided with treatment and thereafter, transported by ambulance to
a hospital or health facility where a more comprehensive assessment could be
conducted and both the degree of physical risk, and the level of decision-making
capacity, could be determined. This course of action would be inconsistent with the
law. It should however be noted, that compliance with the law in these isolated
709 Consistent with the third limb of the common law test in Re C (Adult: Refusal of Medical
Treatment) [1994] 1 WLR 290.
Chapter 10: Conclusions, Discussion and Opportunity for Further Research 267
circumstances could potentially result in a tragic outcome that may not have been
contemplated by the patient, or consistent with their true wishes.
The second area of discrepancy related to the requirement that decisions to
refuse must be voluntary and free from undue influence, coercion or
misrepresentation. A little over half of the participants engaged in activities that were
aimed at influencing a patient to make a decision that may not represent their true
wish. Activities included emotional blackmail, bargaining, and applying pressure,
and recruiting family members and others to do likewise. The greater the clinical
risk to the patient, the more persuasive the techniques that were applied.
10.3 DISCUSSION
Every fifty minutes of every day, a paramedic in Queensland will respond to a
patient who refuses to provide consent for paramedic treatment and/or ambulance
transport and will do so against the paramedic’s advice. The law that regulates these
decisions is clear; a patient has a right to refuse treatment and paramedics are
required to respect that right if it has been validly executed.
Whilst paramedics may not have a deep understanding of some of the legal
principles relevant to this area of the law, their working knowledge of the law was
found to be very reasonable. That said, a little over half of the participants in this
study did not understand the difference between acceptable influence and undue
influence in the context of a valid decision to refuse what the participants believed to
be necessary treatment and/or transport to hospital.
This study identified two areas in which there were discrepancies between the
law that regulates decisions to refuse, and paramedic practice. The first area related
to the actions taken by participants in circumstances where there was a significantly
high level of clinical risk, and where the patient’s level of decision-making capacity
could not be assessed or could not be determined with certainty (reconciling the
‘gravity of risk’ principle with the ‘presumption of capacity’ principle). The second
area of discrepancy relates to the requirement of voluntariness and participants
unduly influencing patients to revoke their decision to refuse treatment and/or
transport.
Earlier in this thesis, it was noted that paramedics are often required to work
alone, or with a single colleague in areas that can be remote, without access to
268 Chapter 10: Conclusions, Discussion and Opportunity for Further Research
extensive diagnostic aids, with limited communication, and where little or no back
up resources are available.710 The environment in which they practice is typically
unstructured and at times, can be potentially hazardous. They can be confronted with
a single patient or with multiple casualties of varying age and ethnicity, and in
circumstances that can be chaotic, volatile and unpredictable.711 Irrespective of the
environment, the location, or the clinical circumstances involved, paramedics are
required to act quickly and decisively, and with little room for error or
misjudgement.
Against this backdrop, it is easy to appreciate the challenges confronted by a
paramedic when informed of a patient’s decision to refuse paramedic treatment
and/or transport, especially in circumstances where the patient is clinically unstable,
and the patient’s decision-making capacity cannot be determined with certainty.
These challenges would be even more confronting for the paramedic if the patient is
at a location that is considered by the paramedic to be unsafe, and where he or she
has no access to assistance should it be required once the paramedics depart.
The circumstances described above are not replicated in any other health care
setting, or any other sphere of professional practice in the health industry. A hospital
environment is, by comparison, relatively controlled and richly resourced, with
access to experts across all conceivable fields of health care, and complex diagnostic
aids readily available. It is an environment in which the patient’s clinical status can
be comprehensively assessed; the gravity of risk to which the patient is exposed,
evaluated; and decision-making capacity determined.
Paramedic practice that is inconsistent with the law as has been identified
should not be condoned, however, it is completely understandable that paramedics,
when confronted with the situation described above, would explore every possible
means that would enable them to provide supportive treatment and thereafter,
facilitate the patient’s safe transportation to a hospital or health facility.
710 See discussion in Chapter 1 of this thesis. See also: Commonwealth of Australia, ‘Establishment
of a national registration system for Australian paramedics to improve and ensure patient and
community safety’ (Senate Legal and Constitutional Affairs Committee, 5 May 2016)
<http://aph.gov.au/Parliamentry_Business/Committees/Senate/Kegak_and_Constitutional_Affairs/Par
amedics/Report> 711 Ibid.
Chapter 10: Conclusions, Discussion and Opportunity for Further Research 269
10.4 CONCLUSIONS AND RECOMMENDATIONS
This thesis has comprehensively analysed the frequency, demographic
characteristics, and clinical circumstances in which patients refuse treatment and/or
transport in Queensland, demonstrating that patient-initiated refusals occur
frequently in the pre-hospital setting and can do so as regularly as every fifty minutes
of every day.
The common law principles that govern contemporaneous decisions to refuse,
which have been extensively reviewed in the literature, are, for the most part, settled.
This thesis did not re-examine the law, rather it provided a contextual description of
the common law principles and did so having regard for the practical application of
the law, by paramedics, and in the unique setting in which paramedic practice takes
place. A contextual description of this kind makes an original contribution to
knowledge.
Following an empirical examination of paramedic knowledge and application
of the law when responding to a patient refusal, this thesis concluded that some
deficiencies in paramedics’ understanding of the law exist, as do inconsistencies
between select areas of the law and paramedic practice.
This thesis demonstrated that paramedics’ have a reasonable working
knowledge of the law but lack an in-depth understanding of two areas: voluntariness
and what constitutes undue influence; and the reconciling the ‘presumption of
capacity’ principle and the ‘gravity of risk’ principle in circumstances involving a
high degree of risk.
The thesis also demonstrates that some paramedics, motivated to achieve what
they perceive to be the best clinical outcome for the patient, will unduly influence a
patient to change their mind and accept treatment and/or transport. The thesis also
demonstrates that paramedics are challenged in cases that involve a high degree of
risk and where decision-making capacity cannot be determined with certainty.
Rather than apply the ‘presumption of capacity’ principle in circumstances where it
may not be applicable, the paramedic is inclined to conclude that the patient lacked
the requisite decision-making capacity.
The original and significant contributions that this thesis has made to
knowledge includes:
270 Chapter 10: Conclusions, Discussion and Opportunity for Further Research
• A comprehensive analysis of the demographic characteristics and
clinical circumstances in which patients refuse treatment and/or
transport to hospital.
• A description of the law that regulates patient decisions to refuse
treatment that has been described in the context of paramedic practice
and the pre-hospital setting.
• A critical evaluation of paramedics’ knowledge of the law that relates
to patient refusals.
• A critical evaluation of paramedics’ practice and how they apply the
law when responding to a patients’ decision to refuse recommended
treatment and/or transport, identifying discrepancies between law and
practice.
The findings presented in this thesis, and the original and significant
contribution that they make, underpin the recommendations that follow.
The recommendations relating to the empirical component of this thesis, are
premised on the fact that paramedic practice is largely influenced by the education
and professional development that the paramedic received, and the employer based
practice guidelines that aim to provide the practitioner with a structured framework
in which clinical decision-making takes place. Three key recommendations have
emerged from this thesis in relation to paramedic education and practice, ambulance
service policy and patients for whom paramedic assistance is requested. The
recommendations are:
1. This thesis should inform the review and subsequent development of
curricular in undergraduate paramedic education programs and continuing
professional development opportunities in relation to the law that regulates decisions
to refuse paramedic treatment and/or transport, and the application of that law in
paramedic practice.
2. This thesis should inform the development of practice guidelines, by
ambulance service providers, to assist paramedics when responding to a patient that
refuses paramedic treatment and/or transport against advice and promote compliance
with the law.
Chapter 10: Conclusions, Discussion and Opportunity for Further Research 271
3. This thesis, and subsequent publications that arise as a consequence, should
advocate for clarity and refinement of the law as it is to be applied, by paramedics, in
circumstances where, in the pre-hospital setting, the paramedic is required to respond
to a patient who is exposed to a significant degree of clinical risk, and where
uncertainty with respect to the patient’s decision-making capacity exists.
10.5 LIMITATIONS OF THE STUDY
The results of this study are applicable to refusal of paramedic treatment in the
pre-hospital setting and refusal of ambulance transport to a hospital or health care
facility. The results cannot be generalized to other health care environments.
A limitation of this study is that it depended upon the paramedic’s
interpretation of the interaction between the paramedic and the patient. It was not
possible to follow up patients and seek their interpretation of that interaction.
The study also relied upon the paramedic’s determination of the clinical risk to
which each patient was exposed, and the paramedic’s determination of the patient’s
decision-making capacity. These factors were not independently verified from
another source.
Due to data collection practices of the QAS at the relevant time, it was not
possible to separate and individually examine, refusal of paramedic treatment from
refusal of ambulance transport. All cases that were reviewed in this study involved a
refusal of ambulance transport against paramedic advice. It was not possible to
identify which of those patients also refused paramedic treatment against advice.
Due to time and travel constraints, participants in this study were selected
within a clearly defined geographical area that was within three hours travel by road
from Brisbane. Whilst the findings in a qualitative study are applicable to the
participants in that study, there is no reason to believe that these findings would not
be replicated in a similar group of participants drawn from a different geographical
area in Queensland.
10.6 OPPORTUNITIES FOR FURTHER RESEARCH
Whilst the findings of this research have filled significant gaps in knowledge
relating to this area of practice, there remains further opportunities for future research
272 Chapter 10: Conclusions, Discussion and Opportunity for Further Research
into areas that were identified during the course of this study, but were outside the
scope of the study.
The first area relates to the correct identification and categorisation, or coding,
of a case involving a patient refusal against paramedic advice. If, as is suggested and
reported in Chapter 5 of this thesis, paramedics are coding cases incorrectly, this
would significantly impact upon the accuracy of the data that the QAS collates, at
least in respect of cases involving patients for whom ambulance services are
requested, and no ambulance transportation is provided. It could also have
implications for the management of such cases in terms of identifying the relevant
law that would be applicable.
The second area relates to the provision of information to a patient that has
refused recommended treatment, including paramedic treatment and/or ambulance
transport. It seems practical, prudent, and arguably necessary to provide a patient
with information that is relevant to the decision-making process, and specific to the
potential consequences of that decision. Whilst a common law duty would exist to
warn a patient of potential risks, the law is unclear regarding any other legal
obligation to provide information to patients in these circumstances. This
uncertainty does not negate the practical requirement to provide a patient with
detailed information regarding their condition and risks. The provision of
information facilitates autonomy and is arguably necessary for the purpose of
assessing a patient’s decision-making capacity. This is an important area of clinical
practice that would benefit from comprehensive evaluation and recommendations on
the basis thereof.
The third area relates to the appropriate management of cases involving a
patient who has refused recommended treatment; is exposed to a significantly high
level of clinical risk; and where the determination of the patient’s requisite level of
decision-making capacity is not possible or is uncertain. Navigating the course of
clinical management in such cases is challenging, and these challenges are only
compounded by the limitations and vulnerabilities of the pre-hospital setting. This
area of paramedic practice warrants a deeper analysis than that afforded in this thesis,
and consideration of appropriate management options that should be supported by
the law.
Chapter 10: Conclusions, Discussion and Opportunity for Further Research 273
10.7 CLOSING REMARKS
A competent individual has an undisputable right to make decisions regarding
their own health care, which includes paramedic treatment and ambulance transport
to a hospital or health care facility. Paramedics are obliged to respect this right and
in order to do so, it is essential that they understand the regulatory framework in
which these decisions are made, and that they can apply the law in all circumstances.
For this to occur, paramedics must be exposed to relevant education and
professional development opportunities, and ambulance service providers must
develop procedural guidelines that provide paramedics with a legal framework that
can guide their decision-making when responding to a patient that has refused
treatment and/or transport.
Notwithstanding appropriate education and structured guidelines, there will
be cases that will challenge paramedics. These cases will involve significant levels
of clinical risk, and circumstances where it is not possible for the paramedic to
determine if the patient is capable of exercising his or her autonomous choice. In
these cases, legislatures should provide direction for paramedics to avert a significant
risk to the patient’s life or health, at least until the patient’s decision-making can be
determined with certainty.
274 Chapter 10: Conclusions, Discussion and Opportunity for Further Research
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Ambulance Service Act 1991 (Qld)
Civil Liability Act 2003 (Qld)
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Emergency Medical Operations Act (NT)
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Appendices 295
Appendices
Appendix A
Participant Approach Email (Version 1)
Approach email – Individual Paramedic Interviews
Subject Title: Participate in a research examining patient refusal of ambulance treatment and/or transport Dear Colleague I am currently enrolled in a PhD in the Faculty of Law at the Queensland University of Technology (QUT). The research that I am undertaking involves an examination of patient refusal of ambulance treatment and/or transportation. If you would like to be involved in this research project, I am looking to interview qualified paramedics in relation to a specific and recent experience involving a patient who refused treatment and/or transport. According to the information that has been provided to me by the Queensland Ambulance Service (QAS), I understand that you attended a case (insert suburb/town) on (insert date of attendance) which resulted in the patient refusing ambulance transport against your advice. If you are interested in participating in an interview relating to this case, please view the attached participant information sheet for further details on the study and how you can participate. Your participation is voluntary, and should you choose to participate, you will not be required to respond to questions or comment on issues raised during the interview, if you do not wish to do so. You may be aware that I am an employee of the Queensland Ambulance Service however, I must stress that this research project is part of my PhD and is in no way related to my role as a QAS employee. Please note that this study has been approved by the QUT Human Research Ethics Committee (approval number 1300000581) and is conducted with the approval of the QAS. Many thanks for your consideration of this request. Bronwyn Betts PhD Candidate Centre for Health Law Research Faculty of Law Queensland University of Technology Phone: 0408 700 510 Email: b.betts@student.qut.edu.au
296 Appendices
Participant Approach Email (Version 2)
Approach email – Individual Paramedic Interviews Subject Title: Bronwyn Betts needs your help! Dear (insert first name) I am wondering if you could help me? On (insert date) you attended an interesting case at (insert suburb/town) which resulted in the patient refusing transport against your advice (Insert case number and eARF number). I am currently enrolled in a PhD in the Faculty of Law and Faculty of Health at the Queensland University of Technology (QUT) and researching the topic of patient refusal of ambulance treatment and/or transport against paramedic advice. Learning more about your experience, and about this case, would be very helpful to my study. I have attached some information in relation to the study. If you would like to participate, please let me know by return email and we can make arrangements to meet at a time and place that is convenient. Participation in this study is voluntary and should you choose to participate, you will not be required to respond to questions or comment on issues raised during the interview, if you do not wish to do so. You may be aware that I am an employee of the QAS however, I must stress that this research project is part of my PhD and is in no way related to my role as a QAS employee. Please note that this study has been approved by the QUT Human Research Ethics Committee (approval number 1300000518) and is conducted with the approval of the QAS. Many thanks for your consideration of this request. Kind regards Bronwyn
Bronwyn Betts PhD Candidate Centre for Health Law Research Faculty of Law Queensland University of Technology Phone: 0408 700 510 Email: b.betts@student.qut.edu.au
Appendices 297
Appendix B
Information for Prospective Participants
298 Appendices
Appendix C
Consent Form and Participant Information Sheet
Appendices 299
300 Appendices
Appendices 301
Appendix D
Recruitment Email – Focus Group Participants
Approach email – Focus Group Discussions
Subject Title: Participate in a research examining patient refusal of ambulance treatment and/or transport Dear Colleague I am currently enrolled in a PhD in the Faculty of Law at the Queensland University of Technology (QUT). The research that I am undertaking involves an examination of patient refusal of ambulance treatment and/or transportation. If you would like to be involved in this research project, I am looking for qualified paramedics with experience responding to a patient who refused treatment or transport, to participate in a focus group discussion. If you are interested in participating, a focus group discussion is scheduled to take place on (insert date) at (insert venue), between (insert time) and (insert time – allow 90 minutes). Please view the attached participant information sheet for further details on the study and how to participate. Please note that this study has been approved by the QUT Human Research Ethics Committee (approval number 1300000581) and is conducted with the approval of the Queensland Ambulance Service. Many thanks for your consideration of this request. Bronwyn Betts PhD Candidate Centre for Health Law Research Faculty of Law Queensland University of Technology Phone: 0408 700 510 Email: b.betts@student.qut.edu.au
302 Appendices
Appendix E
Research Flyer – Focus Group Participants
top related