to treatment
Jack objects to treatment
View more of Jack’s story as the team are met with resistance from Jack.
What do you do next?
Rely on the principle of ‘necessity’ to take bloods and insert the cannula without consent
Healthcare providers cannot invoke the principle of ‘necessity’ as their defence against assault and battery unless it is an emergency and the treatment is imminently necessary to prevent death or serious harm. In this situation there is no ‘imminent risk’ – Explore another option
Necessity
In an unforeseen crisis situation, the common law doctrine of necessity provides a defence for health practitioners to act and administer care and treatment without consent, when impaired decision-making capacity is present or suspected, and the provision of treatment is necessary to prevent serious injury or even death. Necessity cannot be relied upon beyond the time that it is practicable to obtain a valid, or lawful substitute consent.
Reference:
Re T (adult: refusal of medical treatment) [1992] 4 All ER 649
Try to persuade Jack to accept blood testing and the cannula
A patient, respectful approach should be undertaken, with consent from the ‘person responsible’, in persuading Jack to accept the blood testing, cannula and any other prescribed interventions. If Jack does not respond to any of the clinical staff, it may be useful to invite someone Jack trusts to be present at these times for ‘supported decision-making’ – Explore another option.
Supported decision-making
The ‘supported decision-making’ concept emerged from the United Nations Convention on the Rights of Persons with Disabilities (CRPD), which was ratified by Australia in 2008. In essence, it claims that people with disability have the same rights as everybody else to make their own decisions, and should receive help to do this if needed. This concept will likely influence future guardianship legislation.
Reference for CRPD:
UN General Assembly, Convention on the Rights of Persons with Disabilities: resolution / adopted by the General Assembly, 24 January 2007, A/RES/61/106, available at: https://www.refworld.org/docid/45f973632.html
Obtain consent from the ‘person responsible’ and proceed
Because Jack lacks capacity, a ‘person responsible’ can provide substitute consent. However, substitute consent from a person responsible is not valid if the patient is objecting – Explore another option.
Make an application to the NSW Civil and Administrative Tribunal (NCAT Guardianship Division) to make Coral the guardian with a function to override Jack’s objections to medical treatment
It is possible and foreseeable that Jack will continue to object to medical treatment that is required to prevent serious harm to his health. If this transpires, then it would be appropriate to commence an application to the NCAT for the appointment of a guardian. However, a guardianship application at this point is premature – Explore another option.
Rely on the principle of ‘necessity’ to take bloods and insert the cannula without consent
Try to persuade Jack to accept blood testing and the cannula
Obtain consent from the ‘person responsible’ and proceed
Make an application to the NSW Civil and Administrative Tribunal (NCAT Guardianship Division) to make Coral the guardian with a function to override Jack’s objections to medical treatment
Jack is not co-operating
The team struggle to make progress with Jack. Follow the story below.
“the quicker you agree, the quicker you’ll get out of here”.
as the ‘person responsible’.
“the quicker you agree, the quicker you’ll get out of here”.
as the ‘person responsible’.
Coral puts pressure on her father to agree to blood testing and a cannula saying “the quicker you agree, the quicker you’ll get out of here”. Jack finally agrees to these with Coral providing substitute consent for this as the ‘person responsible’. Bloods were subsequently taken and IV fluids commenced. However, Jack pulled the cannula out 30 minutes later, causing significant bleeding, and subsequently resisted attempts by staff to dress the bleeding puncture wound.
Despite Jack agreeing to the intervention, his impaired decision-making capacity necessitates a substitute decision-maker to provide consent for this. Healthcare professionals should be mindful of situations like this where patients assent (agree when capacity is not present), or acquiesce (accept something reluctantly but without protest) to care. In these situations, any agreement by a patient would not meet the requirements of a valid consent.
Furthermore, from an ethics perspective, the healthcare worker must remain mindful to varying degrees of influence on decision-making. There is a spectrum between assistance, persuasion, and coercion, and the latter should be avoided in light of respect for persons.
What do you do next?
What are the best two options for you to take at this point?
Rely on duty of care to physically restrain Jack to dress the wound
Duty of care is NOT a coercive framework and it does NOT provide justification to do anything to a patient that would otherwise be unlawful, such as unwanted touching or detaining against a patients will.
In the following video Professor Cameron Stewart of the Sydney Law School briefly discusses duty of care from an ethical and legal perspective.
Prof Cameron Stewart
“How should duty of care be understood from an ethical and legal perspective?”
Explore another option.
Rely on the principle of ‘necessity’ to physically restrain Jack to dress the wound
It could reasonably be considered necessary to restrain Jack against his will to prevent further bleeding and dress the wound, but the harm of not treating Jack must be carefully balanced against the psychological harm of restraining him – Explore another option
Restraint
There are few practices more contested within healthcare practice than patient restraint, with its associated infringement on patient autonomy* and risks to patients and staff. Therefore, some considerations include:
- Restraint should only be used as a last resort
- The restraint to be used should be the least restrictive alternative
- The team leader should provide guidance and direction
- At all times during the restraint, a clinician must monitor and document the restraint and the patient’s physical condition
- Restraint without consent under the principle of necessity is only lawful for as long as it is not practicable to obtain consent from a guardian, or other lawful mechanism.
*Autonomy
Autonomy translates literally as ‘self-rule’. It is conceived in varying ways through the ethics literature, but at its core is the shared notion of respect for the person we are trying to care for. Ideally, healthcare decisions should be guided by the persons goals, values, and preferences wherever possible.
Respect Jack’s decision and allow him to continue to bleed
Jack’s lack of comprehension and retention of diagnostic and treatment information, evident during the capacity assessment, reflects that he is unlikely to have decision-making capacity about not controlling his bleeding – Explore another option
Schedule Jack under the Mental Health Act in order to to physically restrain Jack to dress the wound
The Mental Health Act 2007 (NSW) provides for and informs the care and treatment of mental illness/disorder. The use of mental health certificates (Schedule) cannot be used to pursue acute medical or surgical treatments in patients who lack decision-making capacity or in those objecting to treatment – Explore another option
Obtain consent for physical restraint from the ‘person responsible’, and then dress the wound
A person responsible cannot provide consent for physical restraint. However they should be notified of any restraint. Only an appointed guardian with a ‘restrictive practices function’ can provide substitute consent for restraint – Explore another option
Restrictive Practices
A restrictive practices function generally involves physically restraining a person, or limiting their freedom of movement or access to objects. Restrictive practices usually arise in the context of managing challenging behaviour. A guardianship application for an order with a restrictive practices function will have to address a number of questions including:
- Have all reasonable less restrictive alternatives been attempted?
- What is the risk to the patient if they are not restricted?
- When restricted, will the patient have a comfortable environment?
- Is the restriction proposed partly for the benefit of others?
Restraint
There are few practices more contested within healthcare practice than patient restraint, with its associated infringement on patient autonomy* and risks to patients and staff. Therefore some considerations include:
- Restraint should only be used as a last resort.
- The restraint to be used should be the least restrictive alternative
- The team leader should provide guidance and direction
- At all times during the restraint, a clinician must monitor and document the restraint and the patient’s physical condition.
- Restraint without consent under the principle of necessity is only lawful for as long as it is not practicable to obtain consent from a guardian
*Autonomy
Autonomy translates literally as ‘self-rule’. It is conceived in varying ways through the ethics literature, but at its core is the shared notion of respect for the person we are trying to care for. Ideally, healthcare decisions should be guided by the persons goals, values, and preferences wherever possible.
Make an application to the NSW Civil and Administrative Tribunal (NCAT Guardianship Division) to make Coral the guardian with a function to override Jack’s objections to medical treatment.
Given the treatment plan prescribed by the geriatrician, and Jack’s objection to treatment, an application to NCAT for a temporary guardianship order with a ‘restrictive practices function’ would be appropriate. This would be the only lawful avenue for applying restraint as part of any prescribed plan of care – Explore another option
Restraint
There are few practices more contested within healthcare practice than patient restraint, with its associated infringement on patient autonomy* and risks to patients and staff. Therefore some considerations include:
- Restraint should only be used as a last resort.
- The restraint to be used should be the least restrictive alternative
- The team leader should provide guidance and direction
- At all times during the restraint, a clinician must monitor and document the restraint and the patient’s physical condition.
- Restraint without consent under the principle of necessity is only lawful for as long as it is not practicable to obtain consent from a guardian
*Autonomy
Autonomy translates literally as ‘self-rule’. It is conceived in varying ways through the ethics literature, but at its core is the shared notion of respect for the person we are trying to care for. Ideally, healthcare decisions should be guided by the persons goals, values, and preferences wherever possible.
Restrictive Practices
A restrictive practices function generally involves physically restraining a person, or limiting their freedom of movement or access to objects. Restrictive practices usually arise in the context of managing challenging behaviour. A guardianship application for an order with a restrictive practices function will have to address a number of questions including:
- Have all reasonable less restrictive alternatives been attempted?
- What is the risk to the patient if they are not restricted?
- When restricted, will the patient have a comfortable environment?
- Is the restriction proposed partly for the benefit of others?
Rely on duty of care to physically restrain Jack to dress the wound
Rely on the principle of ‘necessity’ to physically restrain Jack to dress the wound
Respect Jack’s decision and allow him to continue to bleed
Schedule Jack under the Mental Health Act in order to to physically restrain Jack to dress the wound
Obtain consent for physical restraint from the ‘person responsible’, and then dress the wound
Make an application to the NSW Civil and Administrative Tribunal (NCAT Guardianship Division) to make Coral the guardian with a function to override Jack’s objections to medical treatment
Continue below or choose to explore more of the above options.
In the following video Professor Cameron Stewart of the Sydney Law School briefly discusses guardianship and restrictive practices.
Prof Cameron Stewart
“Guardianship, restrictive practices, and where to seek further advice”