Today’s question is about:

…  searching patients (and utilisation of a metal detection wand) in Emergency Departments … and whose responsibility is it.

Largely speaking across … [South Australia] (at larger sites), if there is metal detection required as part of a search, then contracted site security will be called to undertake this as part of their Authorised Officer powers under Section 43 of the Health Care Act 2008 (SA).

Clinical staff at one site have undertaken the use of metal detection for searches and my concern is that clinicians don’t have authority under the Health Care Act to search (not an authorised officer), but do, in more limited circumstances under Section 56 of the Mental Health Act 2009 have the power to search.

Views expressed by clinicians whilst they might support the shift in responsibility to security to perform this… that everyone needs to understand that the liability for any undiscovered weapon would wholly shift to security also.

My view is that this is a naive and uninformed statement/rationale.

My views are that;

  • Clinical staff in ED have narrow Authorised Officer powers and only under the Mental Health legislation to search patients.
  • Clinical staff are not Authorised Officers under the Health Care Act.
  • Contracted Site Security staff are authorised officers under the Health Care Act and have broader powers to search.
  • Searching of persons for safety reasons, largely and more closely aligns to a security officer role than a clinician.
  • Metal detection wands are largely a tool of trade for security personnel than a clinician.
  • Any searching should be a collaborative approach – Clinician identifies a need to search (safety reasons) and seeks assistance of Security to undertake a search and lawfully seize any items of concern.

To state that liability shifts to security from clinical staff if security do the searches is a baseless, redundant statement.

  • Metal detection with a wand is but a part of the search process (observation, pat down/frisk, inspection, questioning etc).
  • If a ‘trained’ person uses a contemporary calibrated tool of the trade in an appropriate manner with good intent, then it is irrelevant whether they don’t locate a ‘concealed’ weapon / contraband and harm is brought to those around by the person carrying the weapon.

There is no ‘shift’ in liability from one part of the workforce to another.

I generally agree with my correspondent.

The Health Care Act 2008 (SA) s 43 says:

(1) This section applies to a person—

(a) who is present at a site at which an incorporated hospital provides any health services; and

(b) who— …

(ii) is considered by an authorised officer on reasonable grounds to be a threat to another person at the site; or

(iii) is suspected by an authorised officer on reasonable grounds of being unlawfully in possession of an article or substance; or

(iv) without limiting a preceding subparagraph, is suspected by an authorised officer on reasonable grounds to have committed, or to be likely to commit, an offence against any Act or law.

(2) An authorised officer may exercise 1 or more of the following powers in relation to a person to whom this section applies:…

(b) the authorised officer may require the person to submit to a search of his or her clothes, or of anything in his or her possession;

(c) the authorised officer may seize anything in the person’s possession that the authorised officer believes on reasonable grounds—

(i) could be used to harm a person on the site; or

(ii) constitutes an article or substance the possession of which is unlawful in the circumstances; …

(8) In this section—

“authorised officer” means an authorised officer appointed under a by-law made by an incorporated hospital under this Division.

Under the Mental Health Act 2009 (SA) s 56(3)(f), an:

… authorised officer may search the person’s clothing or possessions and take possession of anything in the person’s possession that the person may use to cause harm to himself or herself or others or property.

The definition of authorised officer under that Act is much wider. Under the Mental Health Act an authorised officer is (s 3)

(a) a mental health clinician; or

(b) an ambulance officer; or

(c) a person employed as a medical officer or flight nurse by the Royal Flying Doctor Service of Australia (Central Operations) Incorporated or the Royal Flying Doctor Service of Australia (South Eastern Section); or

(d) a person, or a person of a class, approved by the Chief Psychiatrist, by notice in the Gazette, for the purposes of this definition; or

(e) any other person, or person of a class, prescribed by the regulations for the purposes of this definition;

It should come as no surprise that a condition that must be present before the Mental Health Act is relevant is that there must be a diagnosis of mental illness (s 56(1)(a) and (b)) or (s 56(1)(c)):

it appears to an authorised officer that—

(i) the person has a mental illness; and

(ii) the person has caused, or there is a significant risk of the person causing, harm to himself or herself or others or property or the person otherwise requires medical examination.

No doubt there may be a desire to search people who are not mentally ill in which case the Mental Health Act is irrelevant.

Discussion

First, it is not self-evident that contracted site security are, or clinicians are not, authorised officers under the Health Care Act 2008 (SA).  That Act does not say who are ‘authorised officers’, rather it leaves it up to ‘an incorporated hospital’ to determine, via its by-laws, who are authorised.  They may have forgotten to authorise on-site security; they may have chosen to include clinicians in the list.

Second, all of this begs the question of whether authority is required to conduct a metal detector search and, if it is, whether the Health Care Act 2008 (SA) s 43 permits a metal detector search.  Section 43 permits ‘a search of his or her clothes, or of anything in his or her possession’.  The reason such permission is required is because touching a person without lawful justification or excuse is a battery. Touching someone’s clothing (eg a jacket they are not wearing) would be a trespass to goods.  Because the sort of search that may be anticipated by s 43 involves actual contact with a person or their property lawful authority is required.  Waving a wand over someone does not however touch them so it is not a battery or trespass. It may be that s 43 does not include a metal detector search as no authority is required.

But, countering that position is the Summary Offences Act 1953 (SA) s 66R.  That section says:

(1) A police officer may, for the purpose of detecting the commission of an offence under section 66Q or Part 3A, carry out a search in relation to—

(a) any person present within a declared public precinct; and

(b) any property in the possession of such a person.

(2) The following provisions apply to a search carried out in accordance with this section:

(a) the search must, in the first instance, be a metal detector search;…

(3) In this section—

“metal detector search” means a search conducted—

  • using only a metal detector of a kind approved by the Commissioner; and
  • in accordance with any directions issued by the Commissioner.

Clearly the Parliament did not think police could perform a metal detector search on the basis that there was no trespass and have set out a system to authorise those searches. Given the terms of the Summary Offences Act one cannot, with confidence, infer that either the Health Care Act or the Mental Health Act authorise a metal detector search without consent. But an authorised officer could seek permission to conduct a metal detector search with the ‘backup’ that if the person does not consent then the authorised officer can ‘require the person to submit to a search of his or her clothes, or of anything in his or her possession’.

‘To state that liability shifts to security from clinical staff if security do the searches is a baseless, redundant statement’ is correct.  The hospital is the person conducting the business or undertaking and the occupier of the premises and the employee of the staff.  It is the hospital that has the duty to ensure, so far as is reasonably practicable, that premises are safe. Having said that, it is hard to attribute common law responsibility on defendant A for criminal conduct by B (Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61).

If a person manages to get a weapon into a hospital and do damage that person is primarily responsible for that conduct. As an employer the hospital will be liable to meet workers’ compensation obligations for any injured employee.  Anyone who wanted to sue in negligence they would have to prove that the hospital failed to take reasonable steps to secure the hospital noting that hospitals, in particular emergency departments, have to be open to the public and that hospitals and health care staff have to have a therapeutic relationship with their patients.  Having a doctor or nurse search a patient particularly one in extremis may not help that relationship.  What is ‘reasonable’ has to consider all those issues.  Where security has been contracted out, then there could be issues where the alleged negligence is with the security guard for failing to exercise his or her duties as required by the hospital.

Even if it was true ‘that everyone needs to understand that the liability for any undiscovered weapon would wholly shift to security also’ why clinicians would not welcome that.  Why would a clinician want to take on the occupiers responsibility to undertake a security search?

Conclusions

Let me return to my correspondent’s list:

  • Clinical staff in ED have narrow Authorised Officer powers and only under the Mental Health legislation to search patients. That may or may not be true. It depends on the local hospital by-laws.
  • Clinical staff are not Authorised Officers under the Health Care Act. That may or may not be true. It depends on the local hospital by-laws.
  • Contracted Site Security staff are authorised officers under the Health Care Act and have broader powers to search. That may or may not be true. It depends on the local hospital by-laws.
  • Searching of persons for safety reasons, largely and more closely aligns to a security officer role than a clinician. I agree with that.
  • Metal detection wands are largely a tool of trade for security personnel than a clinician. I agree with that.
  • Any searching should be a collaborative approach – Clinician identifies a need to search (safety reasons) and seeks assistance of Security to undertake a search and lawfully seize any items of concern. I agree with that.

To state that liability shifts to security from clinical staff if security do the searches is a baseless, redundant statement. –          I agree with that.

  • Metal detection with a wand is but a part of the search process (observation, pat down/frisk, inspection, questioning etc). I don’t think that is true. The Summary Offences Act 1953 (SA) s 66R suggests that, at least for police, a metal detection search is something ‘special’. It is not at all clear that Health Care Act 2008 (SA) authorises a metal detection search though an authorised person could ask a person to submit to a search and if they don’t then require them to submit to a personal search. 
  • If a ‘trained’ person uses a contemporary calibrated tool of the trade in an appropriate manner with good intent, then it is irrelevant whether they don’t locate a ‘concealed’ weapon / contraband and harm is brought to those around by the person carrying the weapon. Where the conduct of the search is ‘reasonable’ then it’s correct that a failure to detect a weapon or contraband would not be negligent.

There is no ‘shift’ in liability from one part of the workforce to another. That’s true, the ultimate responsibility for the safety will lie with the hospital. The hospital via its by-laws could make clinicians, or security, or both authorised officers. It may, on a risk assessment, determine that having on site security or security with a metal detector is not required.  The ultimate question, should a person in the hospital be injured by a person with a weapon, will be did the hospital take reasonable steps to prevent that outcome.  If clinicians, or security, are tasked with the search there may be questions of whether that tasking was reasonable and what training they had. Who is liable for what depends on all the circumstances.

If I was a clinician, I would not want to be doing that sort of searching, it seems to be an antithesis to the clinical relationship.  Hospitals probably don’t ask security to do triage, why ask clinicians to do security?