There has, naturally, been lots of bushfire news lately and with that lots of commentary on this blog.  Today however I return to paramedics and paramedicine in Western Australia.  Today’s question is about:

 … an inter-hospital transfer. I was tasked to transfer a patient [from a small outer metro ED to a larger city ED] with a “?drug induced psychosis” who had been sedated and was not on forms [a reference to the forms used for involuntary admission / transfers under the Mental Health Act].

The originating doctor was wanting me to transfer under a ‘Duty of Care’ as we would a head injured patient as he didn’t think the patient needed to be on forms. The police bought the patient in to ED under the Mental Health Act and were still in attendance at the hospital. The patient had been sedated in the police van by hospital staff then taken into the department for further IV sedation.

Where do we stand legally with sedated patients (whose capacity to consent has been removed) and a ‘Duty of Care’ transfer? I advised if patient wakes up and wants out, then I have to let them out. If I took the patient by myself and continued sedation am I putting myself at risk of assault and battery and deprivation of liberty? The patient was eventually put on forms and police came with me-happy days.

Where do we stand with sedated patients and ‘duty of care‘ transfers? The doctor wants clarification. So do I.

I’ve previously discussed the WA mental health legislation- see Trauma or mental illness – WA (June 19, 2019) and Detaining the non-compliant in WA (July 21, 2019).

I do not understand what is meant by ‘a ‘duty of care’ transfer’.  Either the patient needed to be transferred for definitive care or he or she did not. I will put that comment aside as it doesn’t mean anything.  All patients should be transported when their care requires it, and not when it does not.

Here the patient has a problem, in this case let us accept that it was a drug induced psychosis, but it could be a head trauma, hypoxia or anything else.  If they are competent, they can refuse treatment.  If they are not competent treatment that is reasonable and in their best interests can be administered without consent (Collins v Wilcock [1984] 3 All ER 374; Guardianship and Administration Act 1990 (WA) s 110ZI).

If the patient presented with a drug induced psychosis and as a result of that psychosis they were unable to ‘understand the nature of the suggested treatment, weigh up the consequences of and communicate his or her decision’ then they were not competent.  If sedation is a clinically indicated treatment, provided to advance the best interests of the patient, then it can be administered.  Once sedated they can be provided with other medical care that is reasonable in the circumstances and in their best interests, including transport by ambulance to another ED for more definitive care.

So far, the Mental Health Act has not entered into it nor should it if they have a physical issue.  If they need a physician not a psychiatrist, then the Mental Health Act is not relevant.

The Mental Health Act 2014 (WA) allows for involuntary treatment.  It says (s 26):

A medical practitioner … may refer a person under subsection (2) or (3)(a) for an examination conducted by a psychiatrist if, having regard to the criteria specified in section 25, the practitioner reasonably suspects that —

(a) the person is in need of an involuntary treatment order; or

The inference from this story however is that the patient was not being sent or assessment by or treatment by a psychiatrist.

There is an overlap between physical and mental illness in that mental disturbances can have physical causes (eg head trauma, drugs etc).  Section 6 of the Mental Health Act 2014 (WA) says:

A person has a mental illness if the person has a condition that —

(a)        is characterised by a disturbance of thought, mood, volition, perception, orientation or memory; and

(b)       significantly impairs (temporarily or permanently) the person’s judgment or behaviour.

The fact that those disturbances are caused by drugs does not deny that those criteria are met.  But, as noted in my earlier post (Trauma or mental illness – WA (June 19, 2019)):

Section 6(4) says “A decision whether or not a person has a mental illness must be made in accordance with internationally accepted standards prescribed by the regulations for this subsection.”  The prescribed standards are (Mental Health Regulations 2015 (WA) r 4):

(a)        the International Statistical Classification of Diseases and Related Health Problems published from time to time by the World Health Organisation;

(b)         the Diagnostic and Statistical Manual of Mental Disorders published from time to time by the American Psychiatric Association.

I also said in that earlier post:

I don’t think a heavily intoxicated patient is mentally ill.  I note that s 6(2)(i) provides that a person is not to be taken to be mentally ill just because ‘the person uses alcohol or other drugs’.  Even so ‘the serious or permanent physiological, biochemical or psychological effects of the use of alcohol or other drugs [may be]… regarded as an indication that a person has a mental illness’ (s 6(3)).  The long term effects of alcohol or drugs may be evidence of or give rise to a mental illness but immediate intoxication does not equate to a mental illness.

I’m not a clinician so I cannot answer the question, but I can pose the question that should be asked.  It is this:

Does the doctor, honestly believe that the patient’s symptoms meet the criteria in s 6 and that it is attributable to a mental illness as defined in the International Statistical Classification of Diseases and Related Health Problems published from time to time by the World Health Organisation and/or the Diagnostic and Statistical Manual of Mental Disorders published from time to time by the American Psychiatric Association and that the person needs to be assessed by a psychiatrist?

If the answer to that question is ‘yes’ then the Mental Health Act is relevant and steps can be made to provide involuntary treatment to the patient even though he or she remains competent to and is refusing treatment.

If the patient is competent and consents to treatment, no problem.

If the patient is not competent then treatment can be given on the basis of the doctrine of necessity and the Guardianship and Administration Act 1990 (WA) s 110ZI.

If the answer to the above question is ‘no’ eg the patient has a drug overdose and needs to be treated for the physical effects of the drugs, either by being sustained until the drugs are broken down or otherwise dealt with by the body or active treatment is given, then the issue of involuntary treatment under the Mental Health Act does not arise as there is no genuine attempt to get the patient assessed by a psychiatrist (ss 26 and 55).

Presumably if, in this case, the doctor did not think the patient should be ‘on forms’ it was because the doctor did not think the patient was mentally ill.  The patient was physically ill and need more definitive care at another ED, just like any other patient.  The description ‘as we would a head injured patient’ sounds perfectly reasonable.  If a person suffered a head injury and was a danger to themselves or others and not competent to consent or refuse consent to treatment would be sedated and transported to definitive care without any need to refer to the Mental Health Act.  I can see no difference here.  The Mental Health Act is not a tool to impose any treatment on people just because it is for their own good.

The question was:

Where do we stand legally with sedated patients (whose capacity to consent has been removed…? I advised if patient wakes up and wants out, then I have to let them out. If I took the patient by myself and continued sedation am, I putting myself at risk of assault and battery and deprivation of liberty?

If the patient recovers consciousness and has capacity they can refuse treatment but one has to put that in context, if they are in the back of an ambulance probably not fully aware of where they are, how they got there, and what’s happening they are probably not competent (and read the many posts on this blog on what that means – see https://emergencylaw.wordpress.com/?s=gillick).

If on the other hand a paramedic collects a patient that is undergoing active treatment (sedation) and continues treatment en route how is that any different to maintaining any other drugs that have been prescribed to the patient by the treating doctor?  If the first doctor has determined upon examination that the patient’s condition warrants sedation and transport, the paramedic is not required to cease the treatment to ensure that in his or her view it was correct.

Conclusion

I have no idea what is meant by a ‘duty of care’ transfer.

If a patient is not competent to refuse treatment, then treatment that is necessary and in his best interests can be given which can include sedation and transfer to higher level care.  The Mental Health Act is not relevant even if the cause of the patient’s loss of competence is a drug induced psychosis.

The Mental Health Act provides for the involuntary treatment of a mental illness.  It does not provide or justify involuntary treatment of a physical illness by someone who refuses consent.

From what I can infer from the information provided the assessment that this was just like treating a patient with a head injury would be an appropriate way to look at it.