Today’s correspondent, a NSW paramedic, seeks:
… advice about how to ascertain C+C [Competency and Capacity] when a patient won’t engage with the Paramedics, and what the Paramedic’s obligations are.
In the case where Paramedics are responded by a third party to a patient due to concerns over the patient’s mental health or welfare status, and the patient refuses to interact with Paramedics, instead repeatedly saying they are fine and don’t require Paramedics and didn’t ask for their help, how can we ascertain if they have the C+C to refuse assessment/treatment/transport?
If the patient has a history of mental health issues, but is not behaving in a way that would display any current mental health issue and is refusing to answer questions or interact, where does the Paramedic stand if they can’t ascertain C+C, but leave the patient who was refusing assessment and there is an adverse outcome for the patient?
Do patients have the right to refuse assessment, treatment and transport if they refuse to answer questions regarding competency and capacity?
I’ll answer the last question first. Yes ‘patients have the right to refuse assessment, treatment and transport if they refuse to answer questions regarding competency and capacity’. There is no obligation to cooperate with paramedics (or police) or answer their questions.
Where a patient is not competent to consent, or refuse consent, treatment that is reasonably necessary and in their best interest may be administered (see The doctrine of necessity – Explained (January 31, 2017)). Further, an ambulance officer (Mental Health Act 2007 (NSW) s 20):
… may take the person to a declared mental health facility if the officer believes on reasonable grounds that the person appears to be mentally ill or mentally disturbed and that it would be beneficial to the person’s welfare to be dealt with in accordance with this Act.
For a discussion on the interplay between consent and mental illness see Mentally ill, mentally disordered, mentally disturbed or just injured and in need of medical care in NSW? (August 27, 2017).
One thing a paramedic may need to do is to assess if the person is competent and/or mentally ill. A person is competent to consent, or refuse consent, to medical treatment if he or she is able to understand the nature of the suggested treatment, weigh up the consequences of and communicate his or her decision (In Re C (Adult: Refusal of Treatment)  1 WLR 290; Gillick v West Norfolk and Wisbech Area Health Authority  1 AC 112, 169. For a further interesting discussion with a New Zealand focus on capacity see Philip Arnold, ‘The Practitioner Knows Best? Assessment of Patient Capacity and Responses to Refusal of Treatment in Emergency Healthcare’ (2013) 3 New Zealand Law Students Journal 23. I don’t agree with all the author says about treatment after suicide and I note that on that subject the article does not discuss Stuart v Kirkland-Veenstra  HCA 15 and the High Court’s analysis about why attempted suicide is not evidence of reduced capacity or mental illness. With that reservation, it’s a useful and interesting paper).
A person is mentally ill (Mental Health Act 2007 (NSW) s 14(1)) if they are:
… suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary:
(a) for the person’s own protection from serious harm, or
(b) for the protection of others from serious harm.
Mental illness means (s 4):
… a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms:
(c) serious disorder of thought form,
(d) a severe disturbance of mood,
(e) sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a)-(d).
A critical case, as it is with respect to so many posts in this blog, is Stuart v Kirkland-Veenstra  HCA 15. In that case two members of Victoria police observed Mr Veenstra apparently preparing to commit suicide. He spoke to police who formed the view that he was not displaying any of the symptoms of mental illness as listed in the Mental Health Act 1986 (Vic). Deciding that there was no evidence of mental illness the police officers determined that they did not have the power to detain Mr Veenstra under s 10 of the Victorian Act. Mr Veenstra went home and took his own life. His widow sued alleging the police had been negligent for failing to take more active steps to detain Mr Veenstra.
If the police were to have a legal duty to do something, they also had to have a legal power. French CJ said (at ):
In my opinion … there was no legal duty of care … The existence of a power to apprehend Mr Veenstra under s 10 of the 1986 Act was critical… However, it was a power which was never enlivened. The officers said, and the trial judge held, that they did not think Mr Veenstra was mentally ill… The officers, after talking with him, did not believe that he was going to take his own life. In the circumstances they could not have apprehended him unless they believed him to be mentally ill and likely to attempt suicide. The case for a duty of care depended upon the existence of the power to apprehend. That power did not exist in this case.
We can return to the facts given here. The paramedics duty of care can’t extend to doing that which they have no authority to do. If the patient refuses to cooperate with paramedics, refuses to answers questions, or responds by ‘repeatedly saying they are fine and don’t require Paramedics’ and ‘is not behaving in a way that would display any current mental health issue’ there is little that the paramedics can do.
In Collins v Wilcock  3 All ER 374 the English and Wales Court of Appeal had to consider the power of a police officer to detain a person to ask her a question. The headnote (a summary of the case) says:
Two police officers on duty in a police car observed two women in the street who appeared to be soliciting for the purpose of prostitution. One of the women was known to the police as a prostitute but the other, the appellant, was not a known prostitute. When the police officers requested the appellant to get into the car for questioning she refused to do so and instead walked away from the car. One of the officers, a policewoman, got out of the car and followed the appellant in order to question her regarding her identity and conduct and to caution her, if she was suspected of being a prostitute… The appellant refused to speak to the policewoman and walked away, whereupon the policewoman took hold of the appellant’s arm to detain her. The appellant then swore at the policewoman and scratched the officer’s arm with her fingernails. The appellant was convicted of assaulting a police officer in the execution of her duty… She appealed against the conviction, contending that when the assault occurred the officer was not exercising her power of arrest and was acting beyond the scope of her duty in detaining the appellant by taking hold of her arm. The police contended that the officer was acting in the execution of her duty when the assault occurred because the officer had good cause to detain the appellant for the purpose of questioning her to see whether a caution for suspicious behaviour should be administered.
Held – (1) Except when lawfully exercising his power of arrest or some other statutory power a police officer had no greater rights than an ordinary citizen to restrain another. Accordingly, whether a police officer’s conduct was lawful when detaining a person to question him in circumstances where the officer was not exercising his power of arrest or other statutory power depended on whether the physical contact the officer used to detain the person was no more than generally acceptable physical contact between two citizens for the purpose of one of them engaging the attention of the other and as such was lawful physical contact as between two ordinary citizens. If the conduct used by the officer went beyond such generally acceptable conduct, eg if the officer gripped a person’s arm or shoulder rather than merely laying a hand on his sleeve or tapping his shoulder, the officer’s conduct would constitute the infliction of unlawful force and thus constitute a battery…
(3) Since the policewoman had not been exercising her power of arrest when she detained the appellant, and since in taking hold of the appellant’s arm to detain her the policewoman’s conduct went beyond acceptable lawful physical contact between two citizens, it followed that the officer’s act constituted a battery on the appellant and that she had not been acting in the execution of her duty when the assault occurred. Accordingly the appeal would be allowed and the conviction quashed…
In the course of his judgment Lord Goff said (at p. 378):
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. So Holt CJ held in 1704 that ‘the least touching of another in anger is a battery’: see Cole v Turner 6 Mod Rep 149, 90 ER 958. The breadth of the principle reflects the fundamental nature of the interest so protected; as Blackstone wrote in his Commentaries, ‘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’ (see 3 Bl Com 120). The effect is that everybody is protected not only against physical injury but against any form of physical molestation.
In Neal v Ambulance Service of NSW  NSWCA 346 Mr Neal refused assistance from paramedics who remained concerned that he may have suffered serious head injuries. In the face of his refusal they advised police that they could not treat or transport him to hospital. Mr Neal did indeed have serious injuries and sued the Ambulance Service. His case did not dispute that the paramedics did not have authority to detain or treat him but, he argued, the paramedics should have advised the police of their concerns as police could detain him under the Intoxicated Persons Act 1979 (NSW) (now repealed). The District Court Judge found that notwithstanding the patient’s refusal the paramedics still had to do what they reasonably could, given the limitations imposed upon them. What the Court found that they should have done, but did not do, was tell the police that they had not been able to examine the patient, what the possible consequences of that were and ‘tell the police that the plaintiff may have a head injury and should be medically assessed’ (Neal v Ambulance Service of NSW  NSWDC 123, -.
It is axiomatic that a relationship that is as close as that between the Ambulance Service, acting through its employees the ambulance officers, and the patient, must give rise to a duty of care. On appeal the Court of Appeal said the correct question was not whether the paramedics owed Mr Neal a duty of care but whether the duty, in the circumstances, extended to giving advice to the attending police that they should take Mr Neal to hospital (Neal v Ambulance Service of NSW  NSWCA 346, -).
The Court of Appeal did not decide that issue finding that even if the paramedics had given that advice to police, and even if police had taken Mr Neal to hospital, he would have refused treatment there too and so the consequences would have been the same (see Ambulance Service v Neal (January 29, 2009)).
The implications of all of that is:
- Paramedics do owe a duty of care to those that they are called to assist.
- The duty is a duty to provide reasonable care in all the circumstances. It cannot be a duty to do that which the paramedic has no lawful authority to do.
- A person can refuse treatment even if that will lead to their death. Their refusal does not have to be objectively reasonable or based on reasons at all.
- Paramedics (in NSW) do not have a power to detain a person who refuses to cooperate except under the Mental Health Act 2007 (NSW) s 20. Where a person refuses to cooperate with paramedics they have no authority to detain them or compel them to answer their questions. If they do answer by insisting that they do not require assistance the best a paramedic can do is form a view, based on the person’s ability to answer the questions whether they are displaying signs of a mental illness.
- Where a person refuses to cooperate paramedics may owe a duty to do something but what will depend on all the circumstances.
In the situation described a paramedics duty may be to try and persuade the patient to cooperate. If they hold a genuine fear that the patient does in fact require assistance the duty may be to consider calling for assistance from family, the police or mental health teams. If the patient is ‘not behaving in a way that would display any current mental health issue’ there is nothing anyone can do if the person refuses to cooperate. Any attempt to compel the person to cooperate, particularly if it involves physical force (ie touching the person) would be a battery.
“[W]here does the Paramedic stand if they can’t ascertain C+C, but leave the patient who was refusing assessment and there is an adverse outcome for the patient?” The best answer to that is the answer from Stuart v Kirkland-Veenstra  HCA 15. In that case Mr Veenstra went home and took his own life. Whilst it’s true the police had to go to the High Court for an answer the answer will assist others – and the others was there was no duty to protect a person from harm that the police (or paramedics) did not cause. The police were not liable in Stuart v Kirkland-Veenstra, the ambulance service was not liable in Neal v Ambulance Service of NSW.
Where a paramedic is faced with a refusal to cooperate all they can do is their best. They can’t compel the patient to cooperate. If they have no reason to suspect, from the person’s response, that they are not competent or that they are mentally ill, there is nothing they can do to compel compliance. They paramedics may, in the circumstances, need to advise the person that they should seek medical aid, or that there is a concern for their well-being. They may in some circumstances seek help from family, other health professionals or police. But if, at the end of the day, the patient refuses to cooperate then the paramedics need to write detailed notes (as the police in Stuart v Kirkland-Veenstra did) of what they did and what steps they took to assess the patient.