PATIENT REFUSAL OF PARAMEDIC TREATMENT: PROMOTING ... · PARAMEDIC TREATMENT: PROMOTING PARAMEDIC...

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



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.




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



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.




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



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




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



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




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



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




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



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




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



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.

http://www.pc.gov.au/research/ongoing/report-on-government-services


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.


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

https://www.emergencydispatch.org/articles/ArticleMPDS%28Cady%29.html

https://www.ambulance.qld.gov.au/docs/Graduate-Paramedic-Applicant-Information-Kit.pdf


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>


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


Affairs Committee, 5 May 2016)

http://www.altc.edu.au/resource-paramedic-education-flinders-2009


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


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

https://www.ahpra.gov.au/


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


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.

http://www.caa.net.au/

http://www.pc.gov.au/research/ongoing/report-on-government-services


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.


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.


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


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.


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.


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.


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.


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


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


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.


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.


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.


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.


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).


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 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


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


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


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,


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.

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3697857/


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).


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.


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.

http://vuir.vu.edu.au/view/type/thesis.html


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.


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.


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.


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.


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.


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.


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.


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.


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.


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.


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.

http://www.caa.net.au/downloads/caa_annual_report.pdf


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;


• 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:




refusal of ambulance services?


What is the process applied by paramedics to determine if the patient’s decision to

refuse paramedic treatment and/or ambulance transport is valid?


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


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.



refusal of ambulance services?


What is the process applied by paramedics to determine if the patient’s decision to

refuse paramedic treatment and/or ambulance transport is valid?


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.


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.


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.


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.


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.


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.


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.


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.


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.


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.


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.


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.


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


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.


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.


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.


(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.


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.


• 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.


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.


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.


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.


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.


(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.


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.


(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.


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 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.

http://www.paramedics.org.au/about-us/who-we-are/code-of-conduct/

http://www.paramedics.org.au/about-us/who-we-are/code-of-conduct/

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.


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.


(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.


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


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.


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.


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.


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.


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.


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.


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].


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.


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


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.


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.


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.


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].


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.


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.


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].


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].


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.


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.


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.


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].


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.


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.


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].


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.


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.


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.


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].


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.


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


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.

http://blogs.unimelb.edu.au/opinions-on-high/skene-wallace/

http://blogs.unimelb.edu.au/opinions-on-high/skene-wallace/


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.


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.


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


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.


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


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


123

Chapter 4: Epidemiological and

Demographic Characteristics of

Patients Who Refuse Paramedic


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

https://www.pc.gov.au/research/ongoing/report-on-government-services

124 Chapter 4: Epidemiological and Demographic Characteristics of Patients Who Refuse Paramedic


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



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.



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.

https://www.pc.gov.au/research/ongoing/report-on-government-services





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.



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.



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.



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



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.



• 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.



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



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



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



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.



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



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



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)



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.



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



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.


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.


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.


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.

https://ambulance.qld.gov.au/docs/clinical/Introduction.pdf


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].

https://ambulance.qld.gov.au/docs/clinical/Introduction.pdf

https://www.ambulance.qld.gov.au/clinical/Introduction/.pdf


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.


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.

https://www.ambulance.qld.gov.au/clinical.html


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.


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



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].


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.



5.4 INTRODUCTION TO THE FINDINGS - KNOWLEDGE AND


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.


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.


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


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?”


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.


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.


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.


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


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


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


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].


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].


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.


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.



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.

http://www.ambulance.qld.gov.au/clinical.html


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.


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.



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.




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.


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.



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


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.


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


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


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.



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.



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.


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.



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.


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



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.


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.


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



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.


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


Affairs Committee, May 2016)

<http://wwwlaph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affai

rs/Paramedics/Report> [2.5].


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


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’.


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.


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)


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


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.


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.


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.


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.


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


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.


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


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





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>



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.


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.


[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


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.


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.


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.


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.


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’


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).


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.


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



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


Area Health Service v A (2009) 74 NSWLR 88, [24]. 613 Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649, 662.


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.


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


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)


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.


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)


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.


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


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.


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.


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


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


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


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


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


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.


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/>.

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3921998/


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


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.


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’.


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.


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.


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



treatment 'including ambulance officers and paramedics' [41].


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.


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.


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


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.


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.


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.


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


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


[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.


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.


[40]-[41]. See also, Parker, above n 582. 662 Seventeen of the thirty participants.


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.


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


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.


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).


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.


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.

http://bmcmedethics.biomedcentral.com/articles/10.1186/1472-6939-7-7


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.


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.


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


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.


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


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


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


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.


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



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



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



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.


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


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




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.


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.


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.




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.


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


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)


amedics/Report> 711 Ibid.


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:


• 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.


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


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.


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


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.

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CASES

Airedale NHS Trust v Bland [1993] AC 789, 859

Appleton & Ors v Garrett (1997) 8 Med LR 75

Australian Capital Territory v JT (2009) 232 FLR 322

Auckland Area Health Board v A-G (NZ) [1993] 1 NZLR 235

Brightwater Care Group (Inc) v Rossiter [2009] WASC 229

Beausoleil v Communitie des Soeurs de la Providence (1964) 43 DLR 65

Chatterton v Gerson (1981) QB 432

Coronial Inquest into the Death of Marshall Yantarrnga [2005] NTMC 012

Collins v Wilcock [1984] 1 WLR 1172

Cruzan v Director of Missouri Department of Health, 49 US261 (1990)

Darnley v Croydon Health Services [2015] UKSC 50

Dean v Phung [2012] NSWCA 223

F v R (1983) 22 SASR 189

George's Healthcare NHS Trust v S [1999] Fam 26

Hunter and New England Area Health Service v A (2009) 74 NSWLR 88

Hart v Herron (1984) Aust Tors Reports 80–201

H Ltd v J & Anor (2010) 240 FLR 402

HE v A Hospital NHS Trust [2003] 2FLR 408

Inquest into the death of Marshall Yantarrnga [2005] NTMC 012.

290 Bibliography

Inquest into the death of Nola Jean Walker (Coroner's Court of Cairns, State Coroner

Barnes SM, 23 November 2007)

Inquest into the Death of Stacey Louise Yean (Coroner's Court of Victoria, Coroner

Byrne SM, 23 March 2017).

Montgormery v Lanakshire Health Board [2015] UKSC 11

MC, Re [2003] QGAAT 13

Mrs U v Centre for Reproductive Medicine [2002] EWCA Civ 565

Nancy B v Hotel-Dieu Quebec (1992) 86 DLR (4th) 385

Neal v Ambulance Service of New South Wales [2008] NSWCA 346

Re B (Adult: Refusal of Medical Treatment) [2002] 2 All ER 449

Re Bridges [2001] 1 Qd R 574

,Re C (Adult: Refusal of medical treatment) [1994] 1 WLR 290

Re F (Mental Patient: Sterilisation) [1990] 2 AC 1

Re G [1997] 2 NZLR 201

Re MB (Medical Treatment) [1997] 2 FCR 514

Re PVM [2002] QGAAT 1

Re S (Adult: Refusal of Medical Treatment [1992] 4 All ER 671

Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649

Re ZJ [2006] QGAAT 36

Re SZ [2010] QCAT 64

R v Jones [2011] QCA 19

Rogers v Whitaker (1992) 175 CLR 479

Rosenberg v Percival (2001) 205 CLR 434

Schloendorff v Society of New York Hospital 211 NY 125 (1914)

Secretary, Department of Health and Community Services (NT) v JWB and SMB

(Marion's Case) (1992) 175 CLR 218

St George's Healthcare NHS Trust v S [1999] Fam 26

Bibliography 291

Truman v Thomas (1980) 27 Cal. 3d 286

Wallace v Kam (2012) 250 CLR 375

Werth v Taylor 475 NW 2d 426 (1991)

Wang v Central Sydney Area Health Service and Ors [2000] NSWSC

LEGISLATION

Ambulance Service Act 1991 (Qld)

Civil Liability Act 2003 (Qld)

Consent to Medical Treatment & Palliative Care Act 1990 (SA)

Emergency Medical Operations Act (NT)

Guardianship & Administration Act 1990 (WA)

Guardianship and Management of Property Act 1991 (ACT)

Guardianship and Administration Act 2000 (Qld)

Guardianship & Administration Act 1995 (Tas)

Guardianship Act 1987 (NSW)

Health Practitioner Regulation National Law Act 2009 (Qld) (National Law).

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)

Health Practitioner Regulation National Law and Other Legislation Amendment Act

2017 (Qld).

Mental Health Act 2016 (Qld)

292 Bibliography

Medical Treatment Planning and Decisions Act 2016 (Vic)

Powers of Attorney Act 1998 (Qld)

Public Health Act 2005 (Qld)

Transport Operation (Road Use Management) Act 1995 (Qld)

DELEGATED LEGISLATION

Health (Drugs and Poisons) Regulation 1996 (Qld)

REPORTS

Australian Learning and Teaching Council, Paramedic education: developing depth

through networks and evidence-based research (2009)

Australian Health Ministers Advisory Council, Health Workforce Principal

Committee, Consultation Paper: Options for regulation of paramedics (2012)

Australian Learning and Teaching Council, Paramedic education: developing depth

through networks and evidence-based research (2009)

Australian Productivity Commission, Report on Government Services (2019)

Commonwealth of Australia Government, 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)

Council of Ambulance Authorities, Report 49 (2010-2011)

Council of Ambulance Authorities, Annual Report (2010-11)

Queensland Government, Department of Community Safety Annual Report (2011-12)

Queensland Law Reform Commission, A Review of Queensland's Guardianship

Laws, Report No 67 (2010)

Victorian Law Reform Commission, Guardianship: Final Report, Report No 24

(2012)

OTHER MATERIAL

Council of Ambulance Authorities, Paramedic Competency Standard Version 2.2

(2013)

Bibliography 293

Griffiths, Debra, Agreeing on a way forward: Management of Patient Refusal or

Treatment Decisions in Victorian Hospitals (PhD Thesis, 2008)

<https://pdfs.semanticscholar.org>

New South Wales Government, Capacity Toolkit (2009)

Paramedics Australasia, Code of Conduct (2012)

Queensland Ambulance Service, Clinical Governance Framework (2017-2020)

Queensland Ambulance Service, Digital Clinical Practice Manual (2019)

Queensland Ambulance Service, Education Plan (2018-2019)

Queensland Ambulance Service, Graduate Paramedic Information Kit (2018)

Queensland Ambulance Service, Role Description: Officer in Charge (2019)

Queensland Ambulance Service, Role Description: Clinical Support Officer (2019)

Queensland Ambulance Service, Standard Operating Procedure: Response

Priorities (2019)

Queensland Government, Code of Conduct for Queensland Public Service (2017)

Queensland Government (Queensland Health), Guide to Informed Decision-making

in Health Care (2011)

Skene, Loane, ‘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/

Toloo, Sam, 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)

Willmott, Lindy, Advance Directives, Autonomy and The Refusal of Life-Sustaining

Medical Treatment, PhD Thesis (2011) <http://eprints.qut.edu.au/47024>

Eburn, Michael, ‘Latest decision on refusing medical treatment – reviewing the

principles’ (24 November 2018) Australian Emergency Law Blog at Wordpress

<http://emergencylaw.wordpress.com/2018/11/24/latest-decision-on-refusing-

medical-treatment-review-the-principles/>

Eburn, Michael, ‘Refusing transport to a particular hospital’ (21 June 2019)

Australian Emergency Law Blog at Wordpress

<http://emergencylaw.wordpress.com/2019/06/21/refusing-transort-to-a-

particular-hospital/>

Eburn, Michael, ‘More on a patient’s apparent refusal of consent - NSW’ (28 July

2019) Australian Emergency Law Blog at Wordpress

https://pdfs.semanticscholar.org/

294 Bibliography

<http://emergencylaw.wordpress.com/2018/07/28/more-on-a-patients-apparent-

refusal-of-consent-NSW/>

Eburn, Michael, ’Assessing capacity when the patient won’t cooperate’ (24 August

2018) Australian Emergency Law Blog at Wordpress

<http://emergencylaw.wordpress.com/2018/08/24/assessing-capacity-when-the-

patient-won’t -cooperate/>

Eburn, Michael, ’Alcohol and refusing treatment’ (4 April 2014) Australian

Emergency Law Blog at Wordpress

<http://emergencylaw.wordpress.com/2014/04/03/alcohol-and-refusing-

treatment/>

Eburn, Michael, ’Paramedics and recording honest advice’ (15 April 2018)


http://emergencylaw.wordpress.com/2015/04/15/paramedics-and-recording-

honest-advice/>

Eburn, Michael, ’Ambulance transport against patient’s will’ (16 August 2017)


http://emergencylaw.wordpress.com/2017/08/16/ambulance-transport-against-

patient’s-will/>

Eburn, Michael, ’Transport everyone or act as a professional? A question for

paramedics’ (6 May 2013) Australian Emergency Law Blog at Wordpress

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professional-a-question-for -paramedics/>

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: [email protected]

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: [email protected]

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: [email protected]

302 Appendices

Appendix E

Research Flyer – Focus Group Participants

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