A NSW Ambulance paramedic was
Called to a query mental health call. Male patient, wearing only underpants, trespassing, covered in blood, mumbling incoherently. On arrival found to be as stated. Patient able to be physically directed, no obvious source of blood, mumbling, unable to answer questions. Transported to local hospital for investigation of decreased level of conscious – query mental illness, drug affected, head injury or other medical condition.
A police escort travelled in the ambulance. The patient was compliant and presenting as catatonic. En-route we were notified that the patient’s partner had been found violently murdered. On arrival, we were surrounded by multiple police officers who took the patient from our stretcher into custody and placed him into a police vehicle.
I quite vocally stated that the man needed medical assessment due to the potential risk to his life if he was drug affected or head injured. I was told that preserving evidence was their priority, that he was now under arrest and no longer our concern. I learned that he was taken to hospital several hours later. He also died in custody a few weeks later – I don’t know the cause or if it was even related.
My question is as we were called to the scene by the Police to assess the patient and transport to him to hospital, can they then refuse to allow him timely medical attention as deemed necessary by paramedics.
This is a difficult situation. Police have the power to arrest a person without warrant (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 99). Once arrested a person can be held for the ‘investigation period’ whilst police conduct further investigation (ss 109-131). Whilst in custody police can arrange for identification particulars such as fingerprints and photographs to be taken and they can arrange for a medical examination for the purpose of obtaining evidence (ss 133-138C; Crimes (Forensic Procedures) Act 2000 (NSW)).
Police can enter premises, with force, if necessary to make an arrest (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 10 and 230). That means police can enter a hospital or ambulance to make an arrest.
A person under arrest or in custody has the right to, amongst other things, a right to medical attention (s 129). That right, at least as expressed in the Act, is a right that the custody manager must honour. A person will only come into the care of the custody manager once he or she has been brought to the police station. Whilst police making an arrest should arrange for medical care if it is warranted, s 129 won’t have much impact unless and until the person is taken to the police station and placed in the care of the custody manager.
Police have a common-law duty of care to their prisoners (Howard v Jarvis  HCA 19). If a person in police custody needs medical care it must be up to the police to arrange that, as the prisoner cannot do it themselves.
In Metropolitan Ambulance Service v State of Victoria  VSC 222 the court had to apportion liability between the Metropolitan Ambulance Service and the State of Victoria who was liable for any negligence by members of Victoria police (see An earlier (2002) Victorian case on ambulance and police negligence (December 26, 2016) for a detailed discussion). In that case the patient/prisoner had attempted to rob a taxi driver. The taxi driver fought back causing injuries. The judgment explains what happened:
… the plaintiff was struck on the head with a piece of wood on a number of occasions and struck with a fist a number of times by … who was acting in self-defence. … At all relevant times, the plaintiff … was suffering from a psychiatric illness. As a result of the incident, the plaintiff was allegedly rendered unconscious and suffered intercranial bleeding. Shortly after the incident, ambulance officers attended the scene and examined the plaintiff. Police officers took the plaintiff into custody, placed him in a divisional van and then in the cells at the Moorabbin Police Station. After being in custody for several hours, the plaintiff was taken by ambulance to hospital where he received emergency treatment. As a consequence of the custody and the alleged failure to receive timely treatment, the plaintiff’s initial injury was severely aggravated and the plaintiff suffered further injury, loss and damage, including brain damage, loss of cognitive function, impairment of motor function, speech, memory and concentration, epilepsy, psychological suffering, anxiety, depression, nervous shock, a total loss of earning capacity and medical expenses.
In that case, the alleged negligence by officers from Ambulance Victoria related to the history they obtained, their examination of the patient and their communication with police. Mandie J said (at -) that the treating paramedic:
… told the police that it was okay to take the plaintiff into custody and that he did not require any further medical treatment and was fit to remain in custody. The ambulance then left.
All of the police officers that testified emphasised that they had relied upon the advice of the ambulance officer that the plaintiff did not need medical treatment and was fit to remain in police custody.
None of those issues apply in the situation described by my correspondent. In the situation we are discussing the paramedics have assessed the patient, determined the need for transport to hospital, they have transported the person to hospital and they have communicated to police their professional view that admission to the hospital is required.
To return to the decision in Metropolitan Ambulance Service v State of Victoria, once at the police station the prisoner was noted to be unsteady on his feet, had defecated in his trousers, was unable to follow simple instructions, he appeared to police to be intoxicated or drug affected, he had bleeding from the nose, was noted to be ‘asleep’ but unresponsive and breathing loudly. Finally a doctor arrived and (at ):
…found him to be deeply unconscious (ie. unrousable) with slow breathing and pulse and a large area of swelling on one side of his face (in fact, it was the left side). His eyes were of real concern: one eye was fixed and dilated and the other one was a pinpoint, indicating to the doctor some disturbance in the head, such as a blood clot, exerting pressure – he was in a very serious condition. Dr O’Dell ordered an ambulance as soon as possible.
The reasonable response to any situation however requires consideration of competing demands (Wyong Shire v Shirt (1980) 146 CLR 40, 48) so police can rightly balance the need to collect evidence of a very serious crime against the need to obtain medical care for the prisoner/patient. Whether it’s ‘reasonable’ to defer the medical care would be a matter that would depend upon much more evidence as to the patient’s condition. In Metropolitan Ambulance Service v State of Victoria the police were found to have been negligent in that they failed to follow their own procedures on the care of prisoners in terms of checking and attempting to rouse a prisoner who may have been intoxicated or injured. There was no competing need to examine the prisoner in order to collect evidence from him regarding the offence in question.
The question of whether or not the police conduct in the situation described by my correspondent was ‘reasonable’ would depend on an assessment of all the facts and would be a matter for a court to consider if the patient later sued police. It is not a matter for the paramedics to judge at the time.
The problem here is that once the patient had been arrested he’s no longer at liberty. A prisoner (other than a prisoner under sentence) can refuse medical care (Crimes (Administration of Sentences) Act 1999 (NSW) s 73; see also Ambulance Service v Neal (January 29, 2009 and the pdf files attached to that post) but that doesn’t mean they can insist on care if arresting police don’t allow it. The essential nature of arrest is a deprivation of liberty. An ambulance officer can’t treat a person who refuses consent and clearly can’t treat a prisoner if the arresting police refuse consent.
My correspondent’s question is:
… as we were called to the scene by the Police to assess the patient and transport to him to hospital, can they then refuse to allow him timely medical attention as deemed necessary by paramedics.
The fact that they were called to the scene by police is irrelevant as circumstances changed. At the time police observe a person who appears to be in need of care so they call an ambulance. Later they determine that the patient is suspected of a very serious crime so police then arrest the person. The situation would be no different whoever initially called for ambulance assistance. The question should be:
… as we had assessed the patient and transported to him to hospital, can the police refuse to allow him timely medical attention as deemed necessary by paramedics.
The answer to that question is ‘yes’. One simply needs to think of a less dramatic example. Police can’t allow a prisoner to derail the investigation process by insisting on medical care – eg I’ve got a headache I want to go to hospital. So there has to be a point where it’s reasonable for police to say ‘our investigation takes priority’. In more dramatic cases, it would be clear that the health needs of a prisoner must take priority. As with any spectrum, there has to be a borderline point. I can’t say where the case described by my correspondent sits on the spectrum. What can be said is that if the police have taken the person into custody then they can also take him or her from the hospital to conduct their investigation.
Whether that’s a good idea is another matter. In Metropolitan Ambulance Service v State of Victoria the police relied heavily on the statement from the paramedic that the patient was fit enough to be taken into custody. In the case under discussion the advice from paramedics that the patient was indeed not fit enough to be taken into custody should ring alarm bells. It would make it very hard to defend any claims of negligence and perhaps unlawful imprisonment if the person’s condition was made worse by any delay in treatment, given the person can remain in police custody whilst in the hospital and no doubt forensic procedures could be conducted there if required.
What could the paramedics do? It’s simply a matter of common sense that the paramedics couldn’t force the police to deliver the person to hospital. If the police were acting inappropriately that would be a matter for others. The paramedics should (as I infer they did) make their professional opinion known to the arresting police and record as many details of the incident as they can, including recording, as soon as possible after the event, details of conversations they had with each police officer. Ideally these should be recorded in the first person ie ‘I said …’ Constable blogs said ‘…..’ I said ‘…’ Do not write a summary of the conversation but write the actual words used, as best they can be remembered. Paramedics should also alert their coordination centre in an effort to get a supervising officer to attend and speak to police and hopefully liaise with a supervising police officer or the custody manager at the local police station to again communicate the paramedics’ concerns. If possible getting a triage nurse or doctor to come out of the hospital and either examine the patient or explain to police why he needs to come into the emergency room would also help. It would help as it may persuade police to act and if it did not, it is further evidence that they were clearly made to understand that the medical professionals thought the person needed urgent medical assessment and/or care.
At the end of the day however, it is the police who are responsible for the decisions and actions of the police. If they have arrested a person and taken them into custody then they can ‘refuse to allow him timely medical attention as deemed necessary by paramedics’ but they will be responsible for the consequences (if any) of that decision.
The so-called ‘Justice Health ‘ should have been called to the Cells …..
I would have thought a healthy individual was much of much value to any police investigation, rather than a unconscious or deceased suspect. From my understanding of such things, dead people usually tell no lies and often slow investigations. The health and welfare of a suspect regardless of the crime they have committed, should be paramount in any process.
In my experience the threat of the dreaded “death in custody” is enough to sway an unconvinced police officer.
Regardless, sometimes the police just can’t be told…
I’m curious whether medical professionals have ever attended the custody location to provide medical overwatch – i.e. the inverse of police providing security at a hospital bed. Would this go some way to mitigating a potential negligence claim, given the medico could monitor the suspect (within the boundaries of safe and secure custody) for any deterioration in their condition?
Greg, I’m concerned that we get the priorities right. The question should not be whether some action ‘mitigates’ a potential negligence claim, but whether it mitigates the risk of injury to a person. It’s not the claim anyone should want to avoid, it’s doing harm to others.
That exactly what ‘Justice Health’ provide ( should ) in NSW.
A Registered Nurse is supposed to be monitoring such a prisoner.
Apparently, not always ……