A registered AHPRA paramedic in WA was:
… attending an elderly patient who has fallen at home. Not compliant with medications. Has had a couple of alcoholic drinks. Patients partner did not feel safe keeping him home due to regular falls and increased recent aggressive behaviour.
Not compliant at answering questions and makes threats to harm the attending paramedic crew.
Does not fall under mental health. Patient was refusing transport but the paramedic crew could not properly assess the patient due to their non-compliance. What grounds do we have to take the patient to an emergency department? Under duty of care is it ok to engage the police to force the patient to be transferred for further care and management against their will?
I think I have answered this question in respect of New South Wales – see Assessing capacity when the patient won’t cooperate (August 24, 2018).
If the patient is competent and refuses treatment, and the paramedic does not think the patient is mentally ill within the meaning of the Mental Health Act 2014 (WA) then that is the end of the matter in terms of compelling the person to go to hospital. The police have no power to detain a competent person who is not mentally ill, to undergo treatment either. ‘[E]xcept in cases of emergency or necessity, all medical treatment is preceded by the patient’s choice to undergo it’ (Rogers v Whitaker  HCA 58, ). The sort of emergency or necessity contemplated there is where there is ‘a necessity to act when it is not practicable to communicate with the assisted person’ (In Re F  2 AC 1) not just where it is a matter of convenience (Murray v McMurchy  2 DLR 442)).
Certainly, if there was concern for the person or his partner it’s ok to ring police but they cannot ‘force the patient to be transferred for further care and management against their will’ any more than paramedics can. Police could only intervene if there were other grounds to take action eg if they made or obtained a Family Violence Restraining Order (Restraining Orders Act 1997 (WA)) or took the person into custody for an offence or to protect them (Protective Custody Act 2000 (WA) s 6).
What rights does the Protective Custody Act give a police officer that might be relevant in this or similar situations?
I’ve heard (on the grapevine, so accuracy is of course suspect) of it being used in the context of someone who is intoxicated to the point of not having capacity, but not otherwise suffering from a mental illness, but is this correct?
Yes that’s correct. Section 6(1) says:
If an authorised officer reasonably suspects that a person who is in a public place or who is trespassing on private property —
(a) is intoxicated; and
(b) needs to be apprehended —
(i) to protect the health or safety of the person or any other person; or
(ii) to prevent the person causing serious damage to property,
the officer may apprehend the person.
Further ‘If an apprehended person needs a medical examination, an authorised officer, as soon as practicable, is to arrange for the person to be medically examined by a suitably qualified person’ (s 10).
Interesting case. It seems across Australia that the VICRA assessment is used to define capability of making own decisions. I have experienced many times where the patient fails the VICRA assessment eg. intoxicated patients with head injury, and are concious and lucid enough to refuse h hospital transport, leaving paramedic crews and police officers with no powers to detain and transport under mental health act or any other law to my understanding. I am also not aware of a case where a patient as stipulated above has refused transport with ambulance and police presence and later died of there injuries.
It depends on the jurisdiction – as noted in this discussion the Protective Custody Act may give police powers and there is in most if not all jurisdictions a power to take people into protective custody but that is not a power to compel them to accept medical treatment – see the discussion on Ambulance Service NSW v Neal in many posts on this blog in particular https://emergencylaw.wordpress.com/2009/01/29/ambulance-service-v-neal/
But to what extent does intoxication affect a person’s ‘competency’? Really depends on how much is “a couple of drinks”, but if someone is ‘drunk’, are they still competent? Then again, you probably answered this question before as well 🙂
You’ve answered the question. Alcohol is a disinhibitor that may make people make silly decisions but it does not mean they are not competent (and see all the posts on this blog that talks about what that means). But one can be so intoxicated that one is no longer competent. It’s a matter of judgment at the time. There is no answer eg that a blood alcohol content above a certain level means no competence. It’s a question of whether the person can hear and act on the information they are being given not whether they are making a sensible decision.