Today’s correspondent has
… had increasing instances recently where hospitals are contacting QAS [Queensland Ambulance Service] requesting patients be returned under guardianship act for mental health patients who are not on authority to return orders who have left hospital for whatever reason. They are then unable to provide paperwork and then leave it up to us to deal with. Often happens at night where we are expected to go out to people’s houses and attempt to bring them back.
I have attempted to answer this question myself but am unable to find anything in the guardianship act that may legally cover a paramedic crew and usually QPS [Queensland Police] (as in most cases we will ask them to assist for officer safety) turning up and taking these patients against their will based on nothing more than a phone call from a hospital stating that a patient is under the guardianship act.
QPS also seem to not like to assist with these matters either and usually, like QAS operate when complete Authority to return paperwork is sent through.
Can you assist with helping me understand this a bit better?
Medical treatment requires consent. There are some exceptions where the patient is unable to consent, and emergency care is required but the basic principle is that all medical treatment needs the patient’s consent and people can refuse treatment for whatever reason they want even if the treatment is necessary to save someone’s life. It follows that without very sound legal authority, neither QAS nor QPS can force people to come with them to hospital even if going to hospital might be a good idea.
The Mental Health Act 2016 (Qld) deals with people who are mentally ill and does provide for involuntary treatment, ie treatment of someone who can, but refuses to consent. The Guardianship and Administration Act 2000 (Qld) deals with people who can no longer manage their own affairs. A guardian is appointed by QCAT (Queensland Civil and Administrative Tribunal) after an application and the presentation of evidence to show that the person cannot manage their affairs and the appointment of a guardian is appropriate (s 12).
Where a guardian is appointed he or she ‘is authorised to do, in accordance with the terms of the guardian’s appointment, anything in relation to a personal matter that the adult could have done if the adult had capacity for the matter when the power is exercised’ (s 33). That is the guardian can give effective consent to medical treatment as if they were the person receiving the treatment.
Chapter 5 deals with giving medical treatment without consent from either the patient or the guardian. For the purposes of the Act, ‘health provider’ means ‘a person who provides health care, or special health care, in the practice of a profession or the ordinary course of business’ and would include a registered paramedic.
Section 63 says:
(1) Health care, other than special health care, of an adult may be carried out without consent if the adult’s health provider reasonably considers—
(a) the adult has impaired capacity for the health matter concerned; and
(i) the health care should be carried out urgently to meet imminent risk to the adult’s life or health; or
(ii) the health care should be carried out urgently to prevent significant pain or distress to the adult and it is not reasonably practicable to get consent from a person who may give it under this Act or the Powers of Attorney Act 1998…
(3) However, the health care mentioned in subsection (1) (b) (ii) may not be carried out without consent if the health provider knows the adult objects to the health care unless—
(a) the adult has minimal or no understanding of 1 or both of the following—
(i) what the health care involves;
(ii) why the health care is required; and
(b) the health care is likely to cause the adult—
(i) no distress; or
(ii) temporary distress that is outweighed by the benefit to the adult of the health care.
(4) The health provider must certify in the adult’s clinical records as to the various things enabling the health care to be carried out because of this section.
Uncontroversial health care can also be administered but not ‘if the health provider knows, or could reasonably be expected to know, the adult objects to the health care’ (s 64). If the person has left the hospital and gone home that would be some evidence that they object to that care. That may also be evidence that they object to treatment within the meaning of s 63(3).
An application for a warrant to enter a place and to remove an adult can be made by the Public Guardian (s 148). Section 149 says:
(1) The tribunal may issue a warrant only if the tribunal is satisfied there are reasonable grounds for suspecting there is an immediate risk of harm, because of neglect (including self neglect), exploitation or abuse, to an adult with impaired capacity for a matter.
(2) The warrant must state—
(a) that the public guardian may, with necessary and reasonable help and force, enter the place, and any other place necessary for entry, and remove the adult; and
(b) that the public guardian may ask a police officer to help in the exercise of the public guardian’s powers under the warrant; and
(c) the hours of the day or night when the place may be entered; and
(d) the date, within 14 days after the warrant’s issue, the warrant ends.
Where does that leave QAS?
If I was QAS and a hospital contacted the service and requested ‘patients be returned under guardianship act’ I would want them to explain, and document, exactly what they mean. Do they mean there is an appointed guardian and that guardian is giving consent to the treatment and transport of the person? If so, I would want to see a copy of the guardian’s appointment and speak to the guardian to understand what they were consenting to. Ideally the guardian should be asked to meet the ambulance at the person’s home. One would hope that the guardian has a personal relationship with the person and can assist but that may not be the case (eg if the guardian is the Public Guardian), or the guardian may be a long way away. It may not be possible for the guardian to attend but that would be my starting position.
If the hospital means they think treatment is warranted under s 63 one would want more details on the patient’s condition and given the person was fit enough to walk out and go home: what is the urgency (s 63(1)(b)(i)) and why is it not ‘reasonably practicable to get consent from a person who may give it under this Act or the Powers of Attorney Act 1998’ (s 63(1)(b(ii))?
If I was a paramedic, as a registered health professional I would want to satisfy myself by talking to and examining the patient, that the criteria in s 63 are met; that is that the person has impaired capacity and the treatment is urgently required. QAS should take the hospital’s call as if it were a triple zero call reporting an emergency in which case QAS attend and make their own assessment of the patient’s needs and conditions and whether criteria for treatment and transport without consent have been established.
Where a person was under care in a hospital, has left and is now at risk if they are not returned to care the Act provides the means for their return. Either
- The guardian gives consent on the person’s behalf;
- QAS paramedics determine, exercising their own professional judgment, that the criteria in s 63 are established; or
- The public guardian obtains an ‘Entry and Removal’ warrant.
A request by a hospital to QAS to collect a patient, even if that is in the patient’s interests, is not sufficient lawful authority.