Yesterday I announced that this blog would close; but I also said “This blog will close with effect on 31 July 2021- If you’ve got a burning question (no pun intended) – ask it now”. So this is the first of those burning questions. Today’s correspondent said:
I recently attended a case in which a corrections inmate had self-harmed by putting a foreign object into their abdomen. Our local hospital is usually our go to with patients that are also inmates at a corrections facility. In this particular case the patient refused transport to this particular hospital. The patient then stated he would be happy to be transported as long as it was to a different facility which was an extra 10-minute drive away.
My question is regarding the autonomy rights of inmates. It is my understanding they have normal autonomy and therefore can refuse to be transported or treated by paramedics. Can the patient although refuse transport to one facility but accept treatment to another?
If this is the case, is it providing appropriate care to do so? Or is that an organisation issue for the company that provides the ambulance services.
Of course, given that this was self-harm there was also the argument of the Mental Health Act and its input. I feel that it was safer to take this patient to the hospital 10 minutes further away, keeping him calm and compliant, rather than having to provide sedation to facilitate transport to the closer facility against their will. I understand this is contrary to your previously stated opinions on the NSW MH Act. I would love to hear your thoughts on this case.
I infer given the reference to the “NSW MH Act” that we’re talking NSW.
First prisoners, at least prisoners under sentence (as opposed to prisoners on remand awaiting trial) lose autonomy rights. Section 73 of the Crimes (Administration of Sentences) Act 1999 (NSW) says:
A medical practitioner (whether that practitioner is a medical officer or not) may carry out medical treatment on an inmate without the inmate’s consent if the Chief Executive Officer, Justice Health is of the opinion, having taken into account the cultural background and religious views of the inmate, that it is necessary to do so in order to save the inmate’s life or to prevent serious damage to the inmate’s health.
Of course a paramedic is not a medical practitioner, they are a paramedic practitioner, so the exact application of the section would be unclear. In any event my correspondent does not say that gaol authorities were trying to give consent on the patient’s behalf so we can ‘park’ s 73 as simply an provision of interest.
As for the Mental Health Act, I will again put aside the discussion about whether the NSW Act allows paramedics to transport a person who is mentally ill but still competent to consent but who refuses consent (see Accepting that involuntary treatment is an option under s 20 of the Mental Health Act 2007 (NSW) (November 25, 2020)). This question raises the issue of whether the patient is mentally ill or mentally disordered. To be mentally ill the patient has to have:
… a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms–
(c) serious disorder of thought form,
(d) a severe disturbance of mood,
(e) sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a)-(d).
Now I’m not a clinician but the mere fact that the prisoner self-harmed does not, it seems to me, necessarily mean any of those conditions are met and so the person is not prima facie a mentally ill person (s 4 definition of ‘mental illness’ and s 14 definition of ‘mentally ill person’).
To be mentally disordered a person must (s 15) demonstrate:
… behaviour for the time being is so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control of the person is necessary–
(a) for the person’s own protection from serious physical harm, or
(b) for the protection of others from serious physical harm.
Self-harming in prison may not be irrational. It may be, for example a rational way to get out of one situation and into a safer place. Given the patient was able to articulate where he wanted to go etc it doesn’t sound like he was irrational at the time. To repeat I’m not a clinician but on what we’ve been told I cannot infer that the patient was mentally disordered either at the time he inflicted the wound or when approached by paramedics..
Section 20 of the Mental Health Act allows an ambulance officer to take a person to a mental health facility for treatment if they are mentally ill or mentally disordered. The aim here was to take him to a facility for treatment of his abdominal injury, not for a mental illness. Further on the story given it’s not clear he was either mentally ill or mentally disordered. I cannot see that s 20 has any application to play.
We then get to the question – can a patient refuse consent if transport is to hospital A; but consent if the proposal is transport to hospital B? The answer to that question has to be ‘yes’ but does that impose an obligation upon paramedics to transport the patient to hospital B? The answer to that question has to be a qualified ‘no’ – see Patient’s demands do not create a duty to treat (April 11, 2020) and Refusing transport to a particular hospital (June 21, 2019).
I say ‘qualified’ because there may be circumstances where it is appropriate to argue for and accede to the patient’s wishes. In the post A difference between respecting autonomy and doing whatever someone wants you to do (January 12, 2021) I said:
… Here in the Australian Capital Territory (the ACT) there are two hospitals with public emergency departments, Canberra Hospital on the south side (ie south of Lake Burley Griffin) and Calvary Hospital on the north side. Paramedics may be treating a person on the south side so Canberra Hospital would be the ‘normal’ destination – if you like the ‘policy’ destination; but the patient may live on the north side and prefer to go to Calvary as that is closer to home and family and therefore their social support. A paramedic may want to advocate for their patient’s choice – talk to co-ord and ask -even argue – to take the patient to Calvary. That would show respect for patient autonomy and other ethical principles may also come to play. In particular the principle of ‘beneficence’ that is it would actually benefit the patient to go to Calvary. But there may be circumstances where it would not benefit the patient. The extra time that it would take may be critical given their condition so the principle of non-maleficence (ie do no harm) says take the person to the Canberra hospital. It may be a busy night and tying up an emergency ambulance by the longer drive to Calvary and then to return to the south side may reduce the service to others so the principle of ‘justice’ would say go to Canberra. The point is that the patient’s wishes are not the only factor to be considered. The patient can refuse to go to Canberra, can ask to go to Calvary, but cannot insist to go to Calvary even though ACT Ambulance regularly transport patients to both hospitals.
Take a more extreme example, the patient may, for similar reasons, say that they actually want to go to the Royal Prince Alfred Hospital (RPAH) in Sydney. And even if that would be of some benefit to the patient the ACT Ambulance Service could well say ‘that is not an option’; no matter how much the patient wants it and no matter how much it would advance their autonomy to be taken to the RPAH, ACTAS does not transport emergency patients from Canberra to Sydney just because the patient wants to go there.
Let us consider another example. This time the patient agrees to go to the nearest hospital but says ‘but there’s a social function I promised to go to and it’s very important to me, so I’ll go there first and then go to the hospital’. Respect for patient autonomy means the paramedics cannot override the patient’s choice – they can give advice on why that is a bad choice, but they cannot compel the person to come with them. But they can refuse if the person says ‘can you give me a lift to the social function and stay with me to make sure I’m ok, and then drive me to hospital?’ They can refuse as that would be facilitating the poor choice but equally because that is not a service we offer. A doctor can respect a patient’s choice to smoke, but they do not have to condone it or buy them cigarettes.
To return to the question:
Can the patient although refuse transport to one facility but accept treatment to another?
Yes of course but that does not impose an obligation to transport the patient to the other hospital, but a professional paramedic, having regard to the demands of the profession to provide client centred care and thinking about the best interests of the patient may decide that they are much better off taking the extra 10 minutes to go to the hospital the patient wants to. But in other circumstances, eg where the ‘other’ hospital is one hour away, or one day away, may well say ‘that is not an option’. It all depends on the circumstances including the clinical need, the demand on services and company policy. It may well be, taking all the circumstances into account, ‘appropriate care’ to agree ‘to take this patient to the hospital 10 minutes further away, keeping him calm and compliant’ and making it more likely he will consent to the care he needs. Making those calls is what it means to be a professional paramedic.
The fact that the person is a prisoner is in the circumstances described, irrelevant.
As an inmate he would be under escort, and my understanding is the inmate will be transported to a predetermined facility .