Today’s correspondent refers me to
… issues of restraint by US police. One high profile case involves Elijah McLean who was restrained by police and sedated by paramedics with ketamine. Regardless of the dosage of ketamine, it raises an issue of paramedics sedating patients on the advice or request of police. In this case the police had been there first and had apparently painted a picture of Mr. McLean as being out of control and unable to be calmed. Following the sedation by the paramedics Mr. McLean has a cardiac event several minutes later and did not recover.
Police requesting sedation by paramedics is a common occurrence in many jurisdictions. This article: https://www.thecut.com/2020/06/elijah-mcclain-injected-with-ketamine.html suggests it is too common in the US and suggests that paramedics, either knowingly or unknowingly are being used to transfer liability from police in the event of a poor outcome. While this article is commentary, is raises the issue of the decision making of paramedics in deciding to chemically restrain someone and the liability that creates for them. This article suggests that in the US paramedics are sometimes put in precarious ethical positions such as police demanding sedation or indicating it is the alternative to another non-lethal restraint such as a TASER.
While it is not suggested that this same dynamic between police and paramedics occurs in Australia regarding patient sedation, some of the same issues may arise. Could you comment on shared liability for patient outcomes in such situations requiring restraint in police custody. This is especially in light and the level of information paramedics have to make complex sedation decisions often in time-sensitive or dynamic environments.
Whilst I can understand that applying the answer, given the often close working relationship between police and jurisdictional ambulance staff, may be difficult, I think the legal answer is clear.
Paramedics are health professionals. Every aspect of their job is to provide health care. The Paramedicine Board’s Code of Conduct for Paramedics says (at [2.1])
Care of the patient or client is the primary concern for health professionals in clinical practice. Providing good care includes:
a) assessing the patient or client, taking into account their history, views and an appropriate physical examination where relevant; the history includes relevant psychological, social and cultural aspects
b) formulating and implementing a suitable management plan (including providing treatment and advice and, where relevant, arranging investigations and liaising with other treating practitioners)
c) facilitating coordination and continuity of care
d) recognising the limits to a practitioner’s own skills and competence and referring a patient or client to another practitioner when this is in the best interests of the patients or clients, and
e) recognising and respecting the rights of patients or clients to make their own decisions.
All of that remains true whether the person is under arrest or not. A person who is under arrest can still consent, or refuse consent to medical treatment. Providing treatment without the patient’s consent is a battery, even if police ask the paramedics to provide the treatment. (Noting that the situation may be different for prisoners under sentence see for example Crimes (Administration of Sentences) Act 1999 (NSW) s 73).
If the person is unable to consent that is they are unconscious, or so mentally ill or so intoxicated that they cannot understand the advice they are given and make a decision, then treatment that is clinically indicated in their best interests can be given (The doctrine of necessity – Explained (January 31, 2017)). That doctrine does not justify treatment that is in the best interests of the arresting police or treatment that is not clinically indicated by the patient’s medical needs.
A paramedic administering any treatment without first assessing the patient and making his or her own assessment of the patient’s medical condition and the treatment required for that condition would be abrogating his or her professional responsibility and failing to act as a health professional.
Police don’t get to request or direct the type of treatment that paramedics give. They can request paramedic assistance if they think a person in custody needs health care. They don’t get to say what that health care will be so ‘Police requesting sedation by paramedics’ should be ignored. If the paramedic does not think sedation is clinically indicated, they should not administer it. If police demand ‘sedation or indicat[e] it is the alternative to another non-lethal restraint such as a TASER’ and a paramedic does not think sedation is clinically indicated he or she should say so and leave it to the police to decide if they believe they have the right to use alternative force. Weaponizing medical care, in effect giving police a weapon that they do not themselves have, should not be the role of paramedics.
I cannot see there is any shared responsibility or liability. Each is liable for the decisions they make. If police use force, whether a baton, capsicum spray, a TASER or a firearm they have to account for that decision and are (or we hope they are) accountable to law for that decision. They are entitled to use ‘reasonable’ force in arrest and ‘reasonable force’ if they believe their lives or the lives of others are in danger.
Paramedics are health professionals. They are expected to provide health care. That may involve advocating for patients (including those under arrest) eg by telling police to get off them and stop choking them; if they believe the patient needs transport to hospital they should say so, if they don’t think a patient’s condition warrants a particular treatment they should not give it. If they give treatment that is not indicated by the patient’s clinical position and consent (where the patient is competent to consent) then they can be liable for assault and/or professional misconduct. If they are of the view that the treatment (in this case sedation) is clinically indicated then they should give it and transport the patient to hospital. If they are aware that the patient/prisoner has been subject to violence that should affect their decision making where it is clinically relevant.
Paramedics are health clinicians. Every decision they make with respect to the treatment of a patient should be guided by that role and the ethics that inform health professional practice. They are not there to provide an extra weapon on the police arsenal. A police request to sedate a prisoner is an irrelevant consideration in a paramedic’s determination of treatment that should be administered.