Retirement village operators are receiving an increasing number of ‘Do Not Resuscitate’ (‘DNR’) requests from their residents. This introduces the uncomfortable prospect of counter-intuitively withholding CPR (cardio-pulmonary resuscitation) in the event a resident is found unresponsive.
With an ageing population and continued growth of retirement living, it is important that retirement village operators understand their obligations and potential liabilities in relation to DNR requests when considering how to manage them.
What is a DNR Request or Advance Directive?
A specific request not to have CPR, otherwise known as a ‘DNR request’, is a form of advance directive. As its name suggests, an advance directive is a decision made in advance, at a time when a person is still competent to decide. Advance directives specifically refer to anticipatory decisions pertaining to future healthcare, and in particular refusal of treatment. They aim to convey a person’s wishes in the event they lose the ability to decide, or to communicate their decision. Since, unlike non-emergency medical treatment, a person is unable to refuse consent to CPR at the time it is needed, an advance directive in the form of a DNR request enables a competent adult to refuse it in advance.
Advance directives are based on the fundamental principle that every person has an absolute right to decide what happens to their body. Even life-saving medical treatment cannot lawfully be given if a competent adult refuses it, and any touching of a person in the absence of consent amounts to a civil battery (and possibly criminal assault). Advance directives protect a person’s right to self-determination in the context of healthcare.
There are many reasons why a person might have declined CPR (which is not without potential complications). However, provided the person had capacity to make that decision, their reasons bear no relevance and CPR cannot be lawfully administered in the face of prior refusal. Whether the refusal of consent was expressed verbally or in writing is also immaterial, although confirmation in writing is always recommended.
Validity of Advance Directives
The validity of advance directives is recognised at common law (that is, outside any legislative framework) on the basis of well-established principles of consent. Nevertheless, all states and territories in Australia (with the exception of NSW and Tasmania) have enacted laws which clarify the legal position of advance directives, those who may make them, and those who can rely on them. Such schemes can be found in specific legislation or legislative frameworks supporting guardianship and/or powers of attorney. Advance directives are also known as ‘advance care directives’ (VIC, SA and WA), ‘advance health directives’ (QLD), 'advanced personal plans' (NT) or ‘health directions’ (ACT).
There is emerging confusion about the legal validity of advance directives that do not comply with the requirements of a statutory scheme.
On this issue, some key points to note are as follows:
- The fact that a DNR request doesn’t comply with the legislative framework does not mean it is invalid – it may still be valid at common law.
With the possible exception of Queensland (for which specific legal advice should be sought), the common law is preserved in all states and territories. This means that if a competent adult refuses medical treatment it should not be given, and CPR should be withheld from a person if they are known to have made a DNR request.
- Legislative provisions around compliance with advance directives generally apply to health providers and substitute decision-makers only.
Retirement villages continue to be governed by common law principles outside the statutory schemes. However, a retirement village that also provides healthcare, (for example, co-located aged care) or which employs registered health practitioners may be captured by the scope of state legislation.
The state and territory laws also set out circumstances in which an advance directive may lawfully not be complied with (for example, in some circumstances where a person has refused palliative care). They also prescribe mechanisms by which an advance directive might be appropriately challenged. However, advance directives in the form of an isolated refusal of CPR are usually discrete in scope and unambiguous in meaning, and therefore likely to be acceptable at face value.
Legislation around advance directives in Australia is complex and varied. This is why it is important for retirement village operators to understand their obligations under local state or territory laws (if any) and the interface of these laws with the common law. Retirement village operators are in the unique position that any potential risks associated with understanding and complying with advance directives may be mitigated through contractual terms, as well as the implementation of clear policies and procedures for residents and staff. Establishing clear agreements and policies from the outset will assist to avoid angst and confusion amongst staff and clarify their obligations towards residents and their families.
For more information
If you would like information or advice in relation to DNR requests or advance directives more broadly, please contact Dr Melanie Tan on (03) 9609 1577 or Anita Courtney on (03) 8602 7211.
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