… when it is appropriate for Ambulance Officers to physically restrain patients? For example:
• A patient is physically violent towards Officers; or
• A patient is verballing Officers, threatening their safety.

Generally, if the Police are present it will (I assume?) become their responsibility to ensure the safety of all concerned and if required physically restrain the patient. However, what if the Police are not present (and we know that at times they aren’t)? Is it appropriate for Paramedics to restrain a patient on a stretcher? Is it abandonment for them to park the vehicle, exit it and await assistance? (I’m of course making an assumption the patient has already been loaded for transport).

First principles say that any touching, no matter how minor, without consent is an assault:

The fundamental principle, plain and incontestable, is that every person’s body is inviolate. It has long been established that any touching of another person, however slight, may amount to a battery… “the least touching of another is anger is a battery.” The breadth of the principle reflects the fundamental nature of the interest so protected. As Blackstone wrote in his Commentaries, 17th ed. (1830), vol. 3, p. 120:

“the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man’s person being sacred, and no other having a right to meddle with it, in any the slightest manner.”

The effect is that everybody is protected not only against physical injury but against any from of physical molestation. (Collins v Wilcock [1984] 1 WLR 1172 at 1177 (Goff LJ)).

To touch a person without their consent requires some form of lawful justification or excuse. Usually that lawful justification is the patient’s consent, but where consent cannot be obtained, it is the common law of ‘necessity’:

Upon what principle can medical treatment be justified when given without consent? We are searching for a principle upon which, in limited circumstances, recognition may be given to a need, in the interests of the patient, that treatment should be given to him in circumstances where he is (temporarily or permanently) disabled from consenting to it. It ais this criterion of a need which points to the principle of necessity as providing justification…

The basic requirements, applicable in these cases of necessity, that, to fall within the principle, not only (1) must there be a necessity to act when it is not practicable to communicate with the assisted person, but also (2) the action taken must be such as a reasonable person would in all the circumstances take, acting in the best interests of the assisted person.

On this statement of principle, I wish to observe that officious intervention cannot be justified by the principle of necessity. So intervention cannot be justified when another more appropriate person is available and willing to act; nor can it be justified when it is contrary to the known wishes of the assisted person, to the extent that he is capable of rationally forming such a wish. (In re F [1990] 2 AC 1 (Lord Goff)).

So the first justification for restraining a patient would be where it is not practicable to communicate with the patient and the action is necessary in the patient’s best interests. A patient who is suffering from perhaps cerebral agitation caused by hypoxia, hypoglycaemia, drug overdose, epilepsy etc (remember that I’m not a clinician so if any of those conditions are wrongly expressed or would not pose these problems, please forgive me) could justify physical restraint provided that the motivation for doing so was to advance the patient’s best interests (not the paramedics).

In an earlier post I referred to the Mental Health Act 2000 (Qld) which allows Queensland paramedics to take a person to a mental health facility. That Act does not specifically allow physical restraint (though the power may be implied), but others do – eg the Mental Health and Related Services Act (NT) s 31 says:

(1) An ambulance officer may detain a person being conveyed in an ambulance for up to 6 hours where the ambulance officer believes, on reasonable grounds, that the person may fulfil the criteria for involuntary admission on the grounds of mental illness or mental disturbance.

(2) When detaining a person under subsection (1), an ambulance officer may use reasonable measures, including the use of restraints, on the person:

(a) to prevent the person causing serious harm to himself or herself or to someone else; or

(b) to prevent behaviour of the person likely to cause serious harm to the person or to someone else; or

(c) to prevent further physical or mental deterioration of the person; or

(d) to relieve acute symptomatology.

The second justification is, then, when there is specific statutory authority and the necessary conditions for the exercise of that authority exist; in this case that the officer believes the patient meets the criteria for involuntary admission (set out in ss 14-16) and the use of restraints is necessary for one of the reasons set out in subparaphs (a) to (d); not for some other reason.

The gist of the question I have been asked is, however, about risks to the paramedic or others. Here the relevant justification is found in the law of self defence (which includes the defence of others). The law of self defence is largely set out in statutes but even so, the summary given in the common law will sufficiently convey the gist of the defence. In Zecevic v DPP (1987) 162 CLR 645 Wilson, Dawson and Toohey JJ (with whom Mason CJ agreed) said (at [16]):

The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal.

So you can physically restrain a person if you believe, and have reasonable grounds to believe, it is necessary to do so in order to defend yourself or a third party. Normally when acting in self defence one would expect that the person is committing an offence and should be charged.

We are all entitled to make an arrest. The Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 100 says:

1) A person (other than a police officer) may, without a warrant, arrest a person if:
(a) the person is in the act of committing an offence under any Act or statutory instrument, or
(b) the person has just committed any such offence, or
(c) the person has committed a serious indictable offence for which the person has not been tried.
(2) A person who arrests another person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law.

When making an arrest a person ‘may use such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest’ (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 231) (That’s of course the law in New South Wales but, without quoting the relevant Acts, the law will be relevantly similar in each state and territory).

It would be quite onerous to expect everyone to actually take a person before a magistrate. In Brown v GJ Coles (1985) 8 FCR 304 the Federal Court, when dealing with the Crimes Act 1900 (NSW) s 352 (now repealed, but which was in much the same terms as the s 100, above) held that the fact that the citizen did not personally prosecute the offender but handed him over to police who made their own decision, did not make the arrest unlawful.

Therefore a person may be restrained if the paramedic believes they are committing an offence (ie they are competent but belligerent) and it is necessary to restrain them to protect the paramedic or others from injury and to hold them pending the arrival of police. It may not be necessary to restrain a person in order to avoid injury, there may be other options such as getting out of the ambulance and leaving them inside pending arrival of police. The question of what is ‘lawful’ would depend on the paramedics subjective belief as to the threat and what is a reasonable response in the circumstances. This, in turn, would depend on whether the person or someone else needed care.

It would not be reasonable to restrain someone who is being verbally abusive unless their abuse contains a threat and the paramedic actually believes they are intending to carry out that threat. Being rude would not justify physical restraint unless the paramedic was intending to make an arrest, but arrest for offensive language is hardly justified (see Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 99; see also DPP v Carr [2002] NSWSC 194).

If the patient is competent and abusive, then, depending on the circumstances, on might infer they are refusing treatment and that could justify ejecting them from the ambulance but that does not mean the paramedics duty ends there. If the patient won’t cooperate and is competent, it may still be incumbent on paramedics to advise the person, their friends or police that they require treatment or assessment (see Neal v Ambulance Service of NSW [2008] NSWCA 346; Metropolitan Ambulance Service v State of Victoria [2002] VSC 222).

On the other hand a person who is being abusive may not be refusing treatment; one can accept treatment and still abuse one’s helpers. It’s not nice but paramedics will often see people at their worst and all manner of people. Their professional and ethical obligation is to provide the care those people need in the person’s best interests so if the person is being verbally aggressive, but is cooperating with treatment (eg telling the paramedics in no uncertain terms that they are in pain and they demand that the paramedics do something, those with clinical experience can I’m sure think of much more colourful examples) that would not justify either their restraint or leaving them to their own devices unless the paramedic feared and had reasonable grounds to fear for their own safety.

If the person is not competent; if they are mentally ill, affected by drugs, alcohol or their injuries or underlying condition so that they are not actually capable of understanding what is happening, then we are back at the principle of ‘necesssity’ so that if restraint is both necessary in their best interests and reasonable in the circumstances, it could be justified.

Abandonment is not a term that I am familiar with in Australian law but I have heard of it in US law (see Curt Varone, Fire Law Blog: Abandonment Issue Raised in Asiana Crash Case ) but even there it does not sound like a well accepted principle. The question of whether getting out of the car and awating assistance is appropriate is answered by the legal question ‘is that a reasonable response?’ It will be reasonable if that is safe; it does not expose either the paramedics or the patient, or anyone else to danger and allows for the least intrusive option. It may not be reasonable if the person is going to die without advance life support intervention so restraining them is a better option, or if you think they’re going to steal the ambulance or wreck the contents. It will be a judgement call.

In short it’s reasonable to restrain a patient where:
1) such restraint is necessary where the patient is unable to communicate their wishes, the restraint is in the patient’s best interests and reasonable in all the circumstances;
2) restraint is justified by legislation (such as the Mental Health and Related Services Act (NT));
3) the paramedic believes and has reasonable grounds to believe, such action is necessary in self defence; or
4) in order to detain the person where the paramedic believes and offence has been committed and intends to hand the person to police for investigation/arrest.