At 3:00am an ambulance pulls into the emergency department carrying a young man suffering life threatening stab wounds. The man is drifting in and out of consciousness and unable to answer the paramedics’ questions coherently. He is accompanied by a friend who says that they were out celebrating the friend’s 18th birthday (the friend thinks that the patient is due to turn 18 next month), when the patient was attacked and his wallet was taken. The patient’s friend goes on to say that the patient is very religious, “a Jehovah’s Witness I think – his parents are really strict”, but does not know any further details. As the young man’s wallet has been taken, there is no way for the emergency department staff to verify any of this information.

Upon initial assessment, it becomes evident that if the patient does not receive an urgent blood transfusion, he is likely to die. What issues do the emergency physicians face from a legal perspective, and how does the law assist them to do their job?

The Legal Position

The legal framework governing consent in emergency situations in Queensland is complex, and often attracts criticism. There is an obvious conflict between administering life saving medical treatment (such as a blood transfusion) and a patient’s absolute right to refuse treatment.

The key consideration for the emergency physicians is the patient’s capacity to refuse treatment. Under the common law a competent adult is entitled to refuse medical treatment. Under Queensland legislation, capacity is defined as a person who is capable of:

  • understanding the nature and effect of decisions about the matter; and
  • freely and voluntarily making decisions about the matter; and
  • communicating the decisions in some way” [1]

In the above scenario, the patient’s capacity is clearly impaired and the patient is unable to give coherent instructions to treating physicians. In circumstances where the adult lacks capacity, emergency treatment (including a blood transfusion) can generally be performed without consent.

Pursuant to section 63 of the Guardianship and Administration Act 2000, ‘health care’ may be given to an adult without consent, in circumstances where:

  1. The adult has impaired capacity;
  2. The health care should be carried out urgently to meet imminent risk to the adult’s life or health;
  3. The physician does not know that the adult objects to the health care, in an advance health directive; and
  4. The physician must certify in the adult’s clinical records the various things enabling the decision to carry out the health care.

‘Health care’ includes treatment to diagnose, maintain or treat a physical or mental condition. A blood transfusion would fall within this definition. Provided all 4 points above are satisfied, a blood transfusion may be administered to an adult, without consent.

A blood transfusion should not be given in circumstances where the physician is aware that the adult objects to it in an advance health directive. But what about a ‘no blood card’? Should this be followed?

A ‘no blood card’ in itself does not meet the strict legal requirements to constitute an advance health directive [2] - however it may indicate that such a directive is in place. The issue under the legislation is whether the knowledge of a ‘no blood card’ constitutes knowledge of an advance health directive. Unfortunately there is no clear answer to this, and much will depend upon the circumstances.

In the above scenario the patient’s wallet has been stolen, and there is no way to verify whether he carried a ‘no blood card’. However, before a blood transfusion can be administered, consent may be required from his parents or guardian, as there some suggestion that the patient is a minor (that is, under the age of 18).

In the event that the patient’s parents were contacted, and they refused to give consent to the blood transfusion, what should the emergency physicians do? In Queensland, there is no criminal liability on the part of a physician who administers a blood transfusion to a child, without consent, provided that:

  1. In the opinion of the medical practitioner, a blood transfusion was necessary to preserve the life of the child; and
  2. Before administering the transfusion, a second medical practitioner examined the child, and agreed that the transfusion was necessary; or
  3. In circumstances where no second medical practitioner was available, the medical superintendent of a base hospital consented to the transfusion, before it was administered.[3]

Further, if a transfusion is administered in accordance with these requirements, the legislation deems the transfusion to have been administered with consent (although this does not impact any liability for other issues regarding the transfusion, for example if it was executed negligently).

The same considerations apply in circumstances where a minor’s parents cannot be contacted.

What should treating physicians do, and how can hospitals help their doctors?

In order to navigate the complexities of refusal of treatment, it is suggested that hospitals have clear policies in place addressing each of the above issues. This should include policies addressing assessment of capacity, consent, minors, refusal of treatment and a specific refusal of blood policy.

In determining whether an adult patient has the requisite capacity to refuse treatment, there should be a thorough documentation of the assessment of capacity. This should go beyond the standard GCS, and address whether the patient fully understands the implications of a decision to refuse treatment. Medical practitioners – particularly those dealing with patients in an emergency setting – should be supported by the hospital having in place a clear policy regarding who is responsible for making this assessment on a given shift (eg. the consultant/senior registrar), whether another practitioner or nurse should witness the assessment and who should be notified of the outcome.

If a patient is found to have capacity, or if a minor’s parents or guardian are contacted, and objections are raised to potentially life saving treatment, the hospital policy might include steps such as:

  1. The most senior medical practitioner and nurse manager on duty should be informed. If applicable, the policy may provide for notification to the director of medical services or director of emergency.
  2. The patient (or parent/guardian if a minor) should be advised of the risks of not having the treatment. This must be documented, after the event if necessary.
  3. Consider alternative strategies to the treatment, for example the possibility of blood subfractions instead of a blood transfusion. Document the alternatives and any discussion regarding any associated increased risks.
  4. Any uncertainty about the patient’s position regarding treatment should be discussed (where time permits) with the patient and/or their family.
  5. If the patient (or parent/guardian if a minor) decides, against medical advice, to refuse treatment, the refusal of consent must be clearly documented in their medical record. It is recommended that the patient (or parent/guardian) sign a refusal of treatment form.
  6. If staffing numbers permit, another hospital staff member should be present to witness the discussions.
  7. Where any of the above steps are not possible due to time constraints, there should be allowance for the exercise of clinical judgment.

In the situation of a parent/guardian refusing a blood transfusion for a minor, if the treating doctor decides to administer the transfusion without consent the requirements of the Transplantation and Anatomy Act 1979 must be followed and documented. In particular, the treating doctor must ensure that either a second medical practitioner examines the child and agrees that the transfusion is necessary, or a medical superintendent of a base hospital provides consent before the transfusion is administered. As this issue may arise for emergency physicians in a time critical situation outside normal business hours, relevant contact details should be readily accessible.