A Queensland paramedic writes to ask ‘is there a way to transport a patient to hospital who is at risk to either themselves or their dependents, without putting them on an EEA?’
They provide a context of ‘the heavily intoxicated pt. Not necessarily requiring an EEA for mental health, but needing a safe place to be observed whilst they sober up. We were told that involuntary transport would suffice.’ In another context they discuss a patient who denies being drug affected, even though paramedics suspect otherwise. The patient is fully conscious and refuses treatment.
My correspondent says
Having reviewed the case and reflected, and having done some searching on the Qld Mental Health Act, I can’t seem to find anything relating to the involuntary transport of a pt from home to a healthcare facility other than an EEA under Public Health Act. Could it be possible that we essentially kidnapped the patient?
Kidnap is a strong word, suggesting keeping someone for advantage. It is not so much a kidnap but a false imprisonment.
In Queensland the power of paramedics to detain a person and impose treatment upon them is found in the Public Health Act 2005 (Qld) (see Involuntary detention by police or ambulance officers under the Public Health Act (Qld) (March 16, 2021); see also Paramedics and the mentally ill – Queensland – An update (October 14, 2019) and In Queensland, is threatening suicide evidence of ‘a major disturbance in [a] person’s mental capacity’? (August 6, 2020)). It is assumed in today’s question that the criteria for an Emergency Examination Authority is not met. If that is the case is there any other power of ‘involuntary detention’? The answer must be ‘no’.
Where a patient cannot consent, or refuse consent, that is they are no longer competent, then treatment that is necessary and in their best interests, including transport to hospital can be given (see The doctrine of necessity – Explained (January 31, 2017) and Legal justification for treating the unconscious (April 11, 2021)). Where the patient is competent to make their own decisions, a decision to refuse treatment/transport must be honoured even if the paramedics and other health professionals think it is an unwise decision. That is a fundamental legal and ethical principle and should not be at all controversial. You cannot impose treatment upon a person who is capable of giving consent and who does not consent no matter how beneficial it would be for them or for others.
Given that background I have no idea what a Queensland paramedic, or any other health professional, means by ‘involuntary transport’ if it is not an EEA.
With respect to a heavily intoxicated person who needs to be detained for their own protection, police have power to deliver them into protective custody – see Police Powers and Responsibilities Act 2000 (Qld) s 378 but that only applies where the person has been arrested for being intoxicated in a public place (an offence contrary to the Summary Offences Act 2005 (Qld) s 10). It does not apply to a person who is not in a public place, eg at their own home.
Conclusion
In Queensland the only power given to paramedics to impose treatment upon a patient is under the provisions of the Public Health Act 2005. If the patient is competent and refuses treatment, and the criteria for an Emergency Examination Authority does not exist, then an ‘involuntary transport’ is a false imprisonment, you have ‘essentially kidnapped the patient’.
Australian Emergency Law 
I would argue that the criteria does exist in this instance. The correspondent may be confusing the previous Emergency Examination Order (EEO) under the Mental Health Act as opposed to the current Emergency Examination Authority under the Public Health Act. The EEA allows for detention and transport when suffering from serious disturbance of the mind as a result of alcohol, drugs or mental illness. This differs from the old EEO which only allowed treatment for mental illness. It also changes with the EEA dictating a medical clearance before the Acute MH Care Team step in.
The assumption of the question was that the criteria for an EEA does not exist. One criteria for an EEA is a belief that the patient is at ‘immediate risk of serious harm’. A belief of potential future risk is not enough. I was asked to assume that they did not hold that necessary belief so is there are other option for involuntary transport? And to that question my answer was ‘no’.
What about S63 of the Guardianship and Administration Act, to deliver emergency care? It seems to me less onerous on QAS staff, as the person only needs to have “impaired capacity” rather than having “a major disturbance in their mental capacity”?
Section 63 says:
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
(b) either—
(i) the health care should be carried out urgently to meet imminent risk to the adult’s life or health;…
Section 63A allows for the provision, without consent, of life-sustaining measure in an acute emergency. I don’t think any of those provisions apply in the circumstances described. There is no suggestion we are talking about ‘acute emergency’ and if we were, s 63A, along with common law doctrine of necessity justifies treatment. In the post I said ‘It is assumed in today’s question that the criteria for an Emergency Examination Authority is not met.’ As I said:
If the patient is competent and refuses treatment, and the criteria for an Emergency Examination Authority does not exist,
And if they are competent, the Guardianship and Administration Act won’t apply either. Further ‘needing a safe place to be observed whilst they sober up’ is not urgent or life sustaining care.
Guardianship legislation cannot be used to impose treatment on people who make unwise decisions. Even intoxicated and mentally ill people retain a right to have their autonomy respected. Accordingly, such legislation provides for ongoing refusal (see s 63(2)) and are limited to acute or life threatening situations. The Act is relevant but not, I think, in the circumstances described. The critical point is that there is in law no such thing as ‘involuntary transport’ other than where an EEA applies or the patient is not competent to consent or refuse treatment.