A paramedic from WA asks:
As I understand it, Australian paramedics have no legal right to restrain a patient, however we do carry both chemical and physical restraints in the ambulance, and use them if we are asked to use them by police or authorized by our Medical director.
As I understand the meaning of restraint in relation to pre-hospital care, “it is the chemical or physical restraint of a patient without their consent.” Is that correct?
As I understand the meaning, this does not pertain to restraining a patient when you are strapping him/her onto a backboard, and temporary secure limbs (arms) for patient safety for transport into the ambulance or helicopter, especially when you have the consent of the patient for treatment, and have explained the operational reasons for what you are doing.
I have been criticized by the way that I have loaded and attached the patient to the backboard, and peers have said it is unlawful for me to strap and load patients in this matter. In other parts of the globe that I have worked it is a common operational procedure to secure the arms to prevent patients from grabbing out onto ambulance, helicopter, etc.etc. while they are being loaded. Once loaded in the mode of transportation, arms are unstrapped, and normal patient management is continued to hospital.
What are your thoughts??
This issue was covered, to a large extent, in an earlier post. ‘Physical restraint of patients by paramedics’ (February 14, 2014) but that related to Queensland. The common law provisions, discussed in that earlier post, will apply in WA in fact they are more relevant as WA has no ambulance legislation, so WA paramedics have no statutory authority to restrain anyone.
As for the question
As I understand the meaning of restraint in relation to pre-hospital care, “it is the chemical or physical restraint of a patient without their consent.” Is that correct?’ chemical or physical restraint of a patient without their consent.” Is that correct?
That is not correct. Restraint, in relation to pre-hospital care, has no particular legal meaning; it means what it means. According to the Oxford dictionary ‘restraint’ means ‘A measure or condition that keeps someone or something under control’; ‘The action of keeping someone or something under control’ or ‘Deprivation or restriction of personal liberty or freedom of movement’. That last definition certainly implies a lack of consent as securing someone with their consent is not restricting their liberty.
Turning now to the specific laws. The Mental Health Act 1996 (WA) provides that persons may be detained for involuntary treatment upon the order of a medical practitioner and that the police may assist in that process. A medical practitioner who refers a person fro examination may make a written order authorizing police to apprehend the person and take them into custody (ss 34, 41 and 71) and may take a person who they have arrested to a facility for examination (ss 195 and196). Police may enter premises to take a person into custody (s 197) and may use reasonable force to do so (s 200).
Whilst there is no express provision saying police can ask others to assist, such a conclusion is necessary for the Acts to operate. So a police officer may form a view that a person they have arrested, or they may have detained a person under a transport order, and decide that they need ambulance assistance. That doesn’t give the police the authority to tell the ambulance officers to use a chemical or other restraint.
If the police are going to use ‘reasonable force’ (s 200) then they have to believe upon reasonable grounds that the force is necessary (Zecevic v DPP (1987) 162 CLR 645) but that doesn’t meant that the ambulance officers have to also believe that force is necessary. If paramedics are going to consider themselves professional they should not be using restraints when ‘asked’ by police because that is allowing police to make what should be a clinical judgment made in the best interests of the patient. What can happen is if the ambulance officers fear for their safety, or the safety of their patient, they may discuss that with the police and the medical director who may endorse the conclusion that is give some satisfaction that the decision to use a restraint is in fact reasonable.
As for restraining a person on a backboard or otherwise restraining their limbs, that requires either consent, or the common law of necessity. If they consent there is no issue. If they are unable to consent and the restraint is necessary in their best interests and reasonable in the circumstances then it that action is justified by the common law of necessity. Determining whether the procedure was ‘reasonable in the circumstances’ will depend on the sort of practice accepted by the service that is part of the services standard procedures and training.
In summary:
- It is not unlawful to ‘strap and load patients’ if that is accepted professional practice and the action is taken in the patient’s best interests (not the paramedic’s convenience) and the patient consents (either expressly or by implication eg by cooperating with the process) or,
- It is not unlawful to restrain a person if that is accepted professional practice and the action is taken in the patient’s best interests (not the paramedic’s convenience) and, if the patient is unable to consent, the decision is reasonable in the circumstances and in the patient’s best interests.
- It is not unlawful to restrain a person who is suffering a mental illness if that is accepted professional practice (which may include seeking some endorsement from the medical director if that is the procedure adopted in the particular ambulance service) and the paramedic believes, and there are reasonable grounds to believe, that such action is necessary to protect the patient or other people who may be at risk (such as the paramedics or police in the ambulance). The mere request of police is not sufficient. If paramedics are transporting the person it is their professional duty to act in their patient’s best interests and that may well mean resisting a police officer’s desire to unnecessarily restrain the patient. The use of chemical restraints must be in accordance with training, and must use drugs that are authorized for that purpose. Again it’s not for police to tell paramedics how to do that any more than police will direct a paramedic to treat a person with a traumatic injury even if the police have arrested them.
Australian Emergency Law 
St Johns and others in WA train and have written CPGs regarding not restraining a patient. Regardless of law, the service has very clear instructions. If you choose to use restraints, you risk losing your job. I work in helicopter medivac myself, I use arm supports but the patient can remove them as I only support the elbow. If the patient can remove them it’s a support. If patient can’t. ..it’s a restraint.
Police have always been in the back of the ambulance with me when I have had them restrained by police. Police are always happy to escort us.
From as OH point of view. Be careful what rules you break as well.
Thanks Terry; that certainly adds important detail. As I said in my post the practice has to be in accord with accepted professional practice so if the Service’s Clinical Practice Guidelines say never do it then it will never meet that criteria. It is not ‘regardless of the law’ but that is part of the law. It would still allow physical restraint when acting in self defence or the defence of others but that’s not really paramedic practice. If what you say is the case then if police want to use force to restrain a person they should be told to do it- but more importantly and reasonably, if the service is called upon to assist police and to help the mentally ill, and given the police do have a power to use reasonable force and may need assistance, and given that paramedics are probably better suited to restrain someone who is ill rather than being arrested, the CPGs should be written to detail how and when the paramedics will assist and how and when restraint may be justified.
As for supporting the elbow etc what’s really coming down to here is semantics about restraint. Your definition that ‘If the patient can remove them it’s a support. If patient can’t. ..it’s a restraint’ is intuitively reasonable but it surely doesn’t cover all the situations. I’ve seen various rescue devices (KED extrication device if you still use those) and the like that absolutely restrain the patient, and what of tying someone into a stokes litter or the like. As I say if they consent no problem; if they can’t consent and it’s reasonable and in their best interests no problem. Difficult if they object but it’s the only way to get them out. I expect if ‘push came to shove’ a court would find someone’s refusal (say a trauma victim who did want a head restraint) simply wasn’t in a position to refuse consent due to lack of information and/or capacity and so necessity would be used to justify the action, because you can’t refuse to take someone out of harm’s way because they don’t like the kit (see Is there a right to refuse rescue? December 12, 2011) and if you’ve got a helicopter flying overhead and the only safe way to get the person in is to tie them into the stretcher then it has to be done for broader safety reasons.
I have found that having two editions of your book has helped me a lot in seeing the bigger picture of what can go wrong, even with good intentions. Restraint is apart from law, pushed as a duty of care to the service members. The only time I have personally had to use restraints has been with police and members of the prison service with prisoner transport. A prison vehicle can not drive at priority one, so I asked that an officer be present. Learned that from reading your book also. Makes me CYA where needs be. 🙂
Thank you for the positive review of the book. I’m glad it helps.
Hi Michael it appears you failed to consider S243 of Criminal Code WA in this explanation?
That’s quite correct, I did fail to mention s 243 of the Western Australia Criminal Code. That section says:
That section does not however change my answer save that I did say ‘WA has no ambulance legislation, so WA paramedics have no statutory authority to restrain anyone’ but they do have this authority.
The question of what is ‘reasonably necessary’ was discussed in the context of ‘reasonable force’. That is the paramedic would have to believe upon reasonable grounds that the force is necessary and for the purposes state ie to prevent the person doing violence. The question asked did not imply that the person was mentally ill in which case s 243 has no application. But whether restraining a person in a helicopter is ‘reasonable’ depends on all the circumstances and the practice accepted by the profession and professional peers.
So thank you for drawing s 243 to my attention, I had missed it, but as I say I don’t think it make any practical difference to this answer.