Today’s question revisits (NSW) paramedics treating those who cannot or will not consent to treatment. I’m asked:

Firstly where is our duty of care defined?  Is it legislation or is it something that we have adapted.  If so what is ambulance’s definition or guidelines?  We all say it, but legally what are our obligations in relation to this.

Secondly now this relates to competency and capacity.  I understand that we have a protocol A3 however it only states that the patient must receive; believe; retain and explain.  There is no formal questioning/tool.  My question here is if we identify through our questioning that the person is incapable of doing this where is our ‘power’ or ‘legislation’ to detain or remove this patient and take them to hospital.  Does it fall under ‘duty of care’ and if so I’m concerned that I have no guidelines as to what means ie force if necessary, I am able to use, that would not be deemed as assault.  My other problem with receive; believe; retain and explain is the intoxicated pt.  We have no definition of intoxicated or ‘test’ to define when one is.

The NSW Liquor Act 2007 (section 5) states that a person is intoxicated if

  • The person’s speech, balance, co-ordination or behaviour is noticeably affected and
  • It is reasonable in the circumstances to believe that the affected speech, balance, co-ordination behaviour is the result of the consumption or liquor.

So most of this comes about in this scenario:

Intoxicated person at a licensed premise, falls from standing height onto tiled floor, probably as a result of their intoxication and suffers a head injury.  They are very unsteady on their feet.  In my opinion they are intoxicated, evidenced by slurred speech, unsteady gait, you can smell it on their breath and their eyes are blood shot.  When you attend the premises the person is up, stumbling around and can answer your questions however you know that due to their level of intoxication that they probably don’t really understand the ramifications of what their injury could manifest into.  They are by themselves no one is available to pick them up and they reside at home alone.  They allow you to examine them, all their observations are within the flags. They have an obvious haematoma to their head as a result of the fall.  In the past I have utilised police under the Intoxicated Persons Act as a police officer may detain an intoxicated person found in a public place who is:

  • behaving in a disorderly manner or in a manner likely to cause injury to the person or another person or damage to property.
  • In need or physical protection because the person is intoxicated

This Act then goes onto to state that an intoxicated person detained by a police officer under this section is to be taken to, and released into the care of a responsible person willing immediately to undertake the care of the intoxicated person.

It gets a bit tricky however if the person is now no longer in a public place ie at home or friends party and the other people are intoxicated and there is no identified ‘responsible person’.  What power and/or legislation do we have to remove that person, due to them not meeting competency and capacity?  Can we ‘place’ them on the stretcher, would this be viewed as assault?  What if they become violent, can we sedate them?  What if we sedate them and they suffer an arrest?   I know that some people have been putting Mechanical Restraint Devices (MRD) on people to restrain them in order to protect the patient from harming themselves and to protect others however we don’t have legislation for this unless we are acting under the mental health act ie completing a section 20 which if the patient was only intoxicated, this act is not appropriate. I know this sounds extreme and in most instances’ communication/police presence etc will get you over the line however we all know there will be that case! I don’t want to be the one where it ‘goes bad’ and I don’t really understand my rights/obligations other than, I had a duty of care.

More to this what now if the person is drug effected.  Police could possibly detain the person under common law power for Breech of the Peace or LEPRA but again these powers mainly focus on public place.  We have the Medical Disturbance M28 protocol however again my problem with this I think might be that there is no legislation or is there and I just don’t know it.   If they don’t meet competency and capacity and they are in their home, what power/legislation do I have to remove them, sedate or restrain them if they are not compliant or become defiant and aggressive.  With mental health for instance if we have the power to take someone’s liberty away, search and restrain them if necessary as it is legislated, why don’t we have it for behavioural and/or intoxicated people that don’t meet competency and capacity especially if they are not in a public place.

Sorry I know it’s a lot but now that we are registered I’m wondering if our protocols are enough to rely on legally.  I don’t want to ever test it either hence all the questions and confusion.

Discussion

There is a lot there; we’ll try to go through it step by step.

Firstly where is our duty of care defined?  Is it legislation or is it something that we have adapted.  If so what is ambulance’s definition or guidelines?  We all say it, but legally what are our obligations in relation to this.

Fundamentally the concept of duty of care is a common law concept with some modification or codification in the Civil Liability Act 2002 (NSW).  Fundamentally a health care professional has a duty to exercise their profession with reasonable care.  What that means will depend on all the circumstances.  In Rogers v Whitaker (1992) 175 CLR 479 Mason CJ, Brennan, Dawson, Toohey and Mchugh JJ said (at [5]-[6]):

The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a “single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment”; it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case. It is of course necessary to give content to the duty in the given case.

The standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill…

Insert ‘paramedic practitioner’ instead of ‘medical practitioner’, and ‘paramedic’ instead of ‘doctor’ and it defines the paramedic’s duty of care.

As to competence and capacity, at [14] their Honours said ‘except in cases of emergency or necessity, all medical treatment is preceded by the patient’s choice to undergo it.’  A patient can refuse treatment even if that will lead to significant, permanent harm or death. 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) [1994] 1 WLR 290; Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112, 169).

If a person is not competent they cannot give, nor refuse, consent to treatment. The ‘‘power’ or ‘legislation’ to detain or remove this patient and take them to hospital’ is found in the common law of necessity (see The doctrine of necessity – Explained (January 31, 2017)).  In In Re F [1990] 2 AC 1 Lord Goff said:

The basic requirements, applicable in these cases of necessity, that, to fall within the principle, not only (1) must there be a necessity to act when it is not practicable to communicate with the assisted person, but also (2) the action taken must be such as a reasonable person would in all the circumstance take, acting in the best interests of the assisted person.

As Lord Goff said ‘The principle is one of necessity, not of emergency’.  He gave these examples:

Take the example of a railway accident, in which injured passengers are trapped in the wreckage. It is this principle which may render lawful the actions of other citizens – railway staff, passengers or outsiders – who rush to give aid and comfort to the victims: the surgeon who amputates the limb of an unconscious passenger to free him from the wreckage; the ambulance man who conveys him to hospital; the doctors and nurses who treat him and care for him while he is still unconscious. Take the example of an elderly person who suffers a stroke which renders him incapable of speech or movement. It is by virtue of this principle that the doctor who treats him, the nurse who cares for him, even the relative or friend or neighbour who comes in to look after him, will commit no wrong when he or she touches his body.

The two examples I have given illustrate, in the one case, an emergency, and in the other, a permanent or semi-permanent state of affairs. Another example of the latter kind is that of a mentally disordered person who is disabled from giving consent. I can see no good reason why the principle of necessity should not be applicable in his case as it is in the case of the victim of a stroke. Furthermore, in the case of a mentally disordered person, as in the case of a stroke victim, the permanent state of affairs calls for a wider range of care than may be requisite in an emergency which arises from accidental injury.

If the patient is not competent a paramedic (or a doctor, or a first aider) can provide treatment that is reasonable in the circumstances and in the patient’s best interest. That can include taking the person into care and transporting them to hospital.

Intoxication does not equate to incompetence (see Alcohol and refusing treatment (April 3, 2014). People may make decisions when intoxicated that they would not make when sober but that does not mean their decision was not binding on them and others (see Neal v Ambulance Service of New South Wales [2006] NSWCA 102 (discussed at Ambulance Service v Neal ( January 29, 2009)).

It should be noted that the Intoxicated Persons Act 1979 (NSW) has been repealed and its provisions moved to the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 205-210 (the ‘LEPRA’ Act).  Under LPRA an ‘intoxicated person’ is ‘a person who appears to be seriously affected by alcohol or another drug or a combination of drugs’.  Section 206 says:

(1) A police officer may detain an intoxicated person found in a public place who is–

(a) behaving in a disorderly manner or in a manner likely to cause injury to the person or another person or damage to property, or

(b) in need of physical protection because the person is intoxicated.

My correspondent suggests that drug intoxication is different. They say ‘More to this what now if the person is drug effected. Police could possibly detain the person under common law power for Breech of the Peace or LEPRA but again these powers mainly focus on public place.’  Whether they are intoxicated by drugs or alcohol makes no difference.  Being drug affected is not a ‘breach of the peace’ it’s their behaviour that’s relevant. Some drug affected people may be breaching the peace, some may be unconscious. As LEPRA says, relevant intoxication is the product of alcohol or drugs or a combination of those things.

In any event the provisions in LEPRA, as noted, only apply in a public place, they do not apply to a person who is intoxicated at home.  So ‘What power and/or legislation do we have to remove that person, due to them not meeting competency and capacity?’ The answer is, again, the common law of necessity.  What power do you have to remove an unconscious person? Or a child who is ‘home alone’? The answer to all those questions is the common law of necessity.

It’s true that the Mental Health Act is not appropriate. Intoxication is not a mental illness and the aim is to take the person to an emergency department not a mental health facility – see Mental Health Act 2007 (NSW) s 20 – a summary of my current thinking (October 7, 2019; Trauma or mental illness – WA (June 19, 2019)).

Conclusion

The critical point of this question is this:

With mental health for instance if we have the power to take someone’s liberty away, search and restrain them if necessary as it is legislated, why don’t we have it for behavioural and/or intoxicated people that don’t meet competency and capacity especially if they are not in a public place.

The answer is that a person who is mentally ill may still be competent. The point of the Mental Health Act 2007 (NSW) where it relates to involuntary treatment is to allow treatment to be given to a person who is competent but who is refusing treatment.  It is indeed a deprivation of liberty.

Where a person is intoxicated there is no provision for treatment against the patient’s will.  If they remain competent they can refuse treatment even if that is not in their best interests (see Ambulance transport against patient’s will (August 16, 2017)).  If they are not competent then the justification for treatment is the same justification as allows paramedics to treat any person who cannot consent whether it’s due to trauma or intoxication.  If a paramedic feels confident they can treat a person who is unconscoious or incompetent because of a head injury sustained in a motor-cycle accident then they should feel confident that they have the same authority to treat a person who is not competent due to intoxication. Where a person is not competent a paramedic can provide care that ‘a reasonable [paramedic] would in all the circumstance take, acting in the best interests of the assisted person’.