Village operators should understand their obligations and potential liabilities in relation to ‘Do Not Resuscitate’ (‘DNR’) requests, being specific requests to withhold CPR if the need arises.
These are advance directives – that is, decisions made in advance when a person is still competent to decide.
They refer to decisions relating to future healthcare, and particularly refusal of treatment.
Advance directives are based on the principle that everyone has the right to decide what happens to their body. Even life-saving medical treatment cannot lawfully be given without consent, and any touching of a person without consent is a civil battery (and possibly criminal assault).
While not strictly necessary at common law (ie. law outside legislation), it is always recommended an advance directive is confirmed in writing.
A recent coronial finding in Victoria also suggests that the DNR request applies to natural events (eg. a heart attack), and not to unnatural events (eg. an accident).
There is emerging confusion about the validity of advance directives that do not comply with the requirements of statutory schemes which exist across Australia (other than NSW and Tasmania) in relation to advance directives. Some key points to note are as follows:
1. With the possible exception of Queensland, the common law is preserved in all states and territories such that if a competent adult refuses medical treatment it should not be given.
2. The statutory schemes generally only apply to health providers and substitute decision-makers. Retirement villages continue to be governed by common law principles, however, if healthcare is provided (eg. co-located care) or registered health practitioners are employed in the retirement village, state/territory legislation may apply.
It is important retirement village operators are aware of their obligations under complex and varied state/territory laws relevant to them and their interplay with the common law. Any risks associated with advance directives may be mitigated through contractual terms as well as clear policies and procedures for residents and staff.
For information or advice please contact Dr Melanie Tan (pictured) from Russell Kennedy on (03) 9609 1577 or Anita Courtney on (03) 8602 7211.
