Today’s correspondent is a paramedic who has had

… a question for long long time. We always use the term “duty of care” to convince patient to go to hospital, even patient doesn’t want to go.

Considering the fact that patient has the right to refuse treatment, how far the “duty of care” could go?

If the patient is incompetent in decision making, sure…

what about a guy who is a homeless person that is slightly intoxicated (long term alcoholic), conscious, oriented to place and person, but can’t tell the exact date (not uncommon for them, even they are not intoxicated anyway)?

I have seen so many of our fellow emergency responders force those patients go to hospital by referring to “duty of care”. Sometimes I just wonder do they have the rights to refuse?

Thank you so much for your kind attention.

I just always wonder how “legal” our decisions are…

The decisions, in the circumstances described, are not legal.

A patient has a right to refuse treatment/transport.

A paramedic does not have a duty to impose care, he or she has a duty to be careful.

There is not, generally, a duty to prevent harm occurring (Stuart v Kirkland-Veenstra; Graham Barclay Oysters v Ryan), there is a duty not to cause harm (Donoghue v Stevenson).

One might argue that not treating and transporting a person is causing harm by omission, but you only have a duty to avoid an omission that causes harm where you have a legal obligation to act (Airedale NHS Trust v Bland). You do not have a obligation – and therefore cannot have a duty – to assault or detain a person against their will where you have no legal authority to do so.  Any harm that is caused to them would be caused by their underlying condition and their decision to reject your advice (Ambulance Service NSW v Neal) not from your decision to respect their right to make an autonomous choice.  You cannot have a duty to do that which you are not allowed to do (Stuart v Kirkland-Veenstra).

Even if you had a duty to provide care to a person that you thought they needed, regardless of what they thought, your duty does not give rise to an obligation upon them to assist you to do what you want them to do to protect your own interests.  Nor do they have to accept care just because you think it is in their best interests.

There is of course a difference between ‘convincing’ a person to go to hospital and forcing ‘those patients go to hospital’.  Convincing a person to change their mind (that is providing advice that causes them to change their mind) is fine, putting them in a position where they think they have no choice is not. Forcing them into an ambulance is not fine. A competent patient has the right to refuse treatment.  Whatever duty you think you have it is not a duty to treat a competent patient without their consent (Rogers v Whitaker).

See also Transporting sedated patients in WA (December 30, 2019).