A correspondent has drawn a WA case being reported by the ABC – David Weber, ‘Court case highlights concerns over patients being held unlawfully in WA hospitals’ ABC (Online) 21 January 2023 – to my attention.
The gist of the story is that a person was transported to hospital unconscious.
When he came to, he said he wanted to leave to “have a smoke” and walked out of the building, still wearing his hospital gown.
A ‘code black’ was issued, suggesting there was a threat to staff or patients or property, and five security guards responded.
Security officers grabbed him and brought him back into the hospital…
One of the guards suffered a fractured right ankle…
The officer who was injured told the court nursing staff had informed him that while the man had been physically cleared, he had not been “psychologically cleared” to leave.
The man had been charged with causing grievous bodily harm and went to trial in October 2022.
District Court Judge Linda Black raised concerns about the prosecution case in the absence of the jury.
“The use of force is predicated on a right to detain him,” she said.
“There was no right to detain, therefore no right to use any force at all.”
The prosecution case was that the man’s actions were deliberate, while the defence case was essentially the restraint was wrongful, so he had every right to break free.
Addressing jury members before they retired to consider their verdict, Judge Black said the man was entitled to leave.
“He was unlawfully brought back into the hospital, and after force was unlawfully applied to him, he was then unlawfully detained and put onto a stretcher, and kept in hospital overnight.”
Judge Black said nobody was suggesting the hospital staff acted with malice, and “no-one was deliberately trying to breach the accused man’s rights”.
But to reinforce her main point, she said, “the law is that he should have been allowed to leave”.
“No one was allowed to touch him.”
After deliberating for about 90 minutes, the jury found the man not guilty of causing grievous bodily harm, and he walked free from the court.
We’re told that ‘Lawyer John Hammond said the decision had cleared up a grey area.’ I’m not sure I agree with that assessment for two reasons.
First, this is a decision of a jury. Juries do not give their reasons they simply return a verdict of ‘guilty’ or ‘not guilty’. A jury’s decision does not set a precedent nor does the judge’s directions to the jury. It is less significant as a precedent as the judge’s comments to the jury are not published so we cannot read them directly. The case would (or will) have precedent value if it is subject to an appeal and the Court of Criminal Appeal gives a definitive legal ruling even if it simply quotes the judge and says ‘she was right; that is the law’. Until then it’s an interesting example of the application of the law, and something hospitals and security staff should be aware of and consider, but it doesn’t actually set a legal precedent (see Accessing a judge or magistrate’s reasons for decision (November 18, 2016).
My second objection to Mr Hammond’s assessment is that I don’t see this as a ‘grey’ area. People have a right to refuse treatment, hospitals are not prisons so people are free to leave unless they are not competent to make a decision and treatment is then justified under legislation such as Guardianship or Mental Health legislation. Detaining people who do not fit that criteria is not justified by law even if the intention is to act for their benefit (and see Relying on the concept of ‘duty of care’ to impose treatment on the unwilling (September 30, 2020)).
Detaining a person for the practitioner’s benefit (ie to ‘cover your arse’) is not justified by law. That does not deny that health staff are not in a difficult position – if the patient is competent, they are free to go even if they are making a bad decision; if they are not competent or are mentally ill there may be allegations of negligence in failing to recognise that and take steps to detain them.
In Presland v Hunter Area Health Service  NSWSC 754 the plaintiff, Presland, sued the Health Service after he was allowed to leave the hospital and then went and killed his brother’s fiancée. He was acquitted of her murder on the grounds of mental illness. Prior to the killing he had been at the James Fletcher Hospital (JFH), a psychiatric institution where he was assessed by a psychiatrist. That doctor allowed Mr Presland to leave with his brother and the deceased. He killed her six hours later. In his claim for negligence, he argued that the health service had been negligent as they failed to exercise their powers under the Mental Health Act 1990 (NSW) to detain him and to subject him to involuntary treatment. The patient’s claim was successful before Adams J but was set aside by the Court of Appeal in Hunter Area Health Service v Presland  NSWCA 33 and the law was amended to try and defeat any similar claim in the future (Civil Liability Act 2002 (NSW) s 54A inserted into the Act by the Civil Liability Amendment (Mental Illness) Act 2003).
To return to the ABC article, another lawyer is quoted as saying:
“There’s a misconception in the department and amongst doctors that the principle of duty of care somehow authorises them to restrain and detain patients and that’s just not the case,” he said.
That’s clearly correct. In Presland’s case there was no suggestion that there was a common law power to detain or the common law duty of care somehow justified detention. The finding by Adams J depended on the presence of the Mental Health Act and, as noted, his finding that there was a duty to detain Mr Presland was set aside. In Stuart v Kirkland-Veenstra  HCA 15, the High Court of Australia rejected a claim that police had some common law duty to detain Mr Veenstra who later took his own life. In that case French CJ said (at ) “The case for a duty of care depended upon the existence of the power to apprehend. That power did not exist in this case.” If there was no power to detain, there could be no liability for failure to detain.
A patient who wants to leave must be allowed to leave unless there is a legal authority to allow them to be detained. They cannot be detained just because it is a good idea or because the hospital would like to undertake further examination. And a person who is being threatened with treatment they don’t want is entitled to resist – see also Tasmania – Alcohol affected patient refuses treatment and is not guilty of assaulting police – Part 2 (October 5, 2015).
This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.
Dear Mr Eburn –
Thank-you for your ongoing efforts with Australian Emergency Law. In my view it is an excellent resource that I often read avidly.
Not being a lawyer myself, I am always keen to ensure that my opinions on the law do not deviate too far from people who are actually qualified to express opinions.
I agree with almost everything in this blog, except (perhaps) for a statement write at the bottom – âA patient who wants to leave … cannot be detained â¦ because the hospital would like to undertake further examinationâ. I have argued previously that in certain, very limited circumstances, there is a common law power to detain to allow further (at least brief) examination.
I have attached the paper for your interest.
Dr Christopher Ryan
Consultation-Liaison Psychiatrist | Adjunct Associate Professor | Clinical Associate Professor
St Vincentâs Hospital | University of New South Wales | University of Sydney
C/- Department of Psychiatry, St Vincentâs Hospital, 390 Victoria Street, Darlinghurst NSW 2010
T +61 2 8382 1111
I had a dentist do the exact opposite of detaining me for treatment; after failing to follow proper dental procedure, which should have been giving me an antibiotic dose prior to extracting an abscessed tooth, I suffered a massive fever that came on straight after extraction, due to the bacterial shower that flooded my bloodstream; as soon as the dentist noticed the effects of fever, notably my face draining of colour, he hurried me out of his surgery, presumably to evade responsibility for getting medical treatment for my health condition caused by his negligence.
My thoughts as an emergency doctor; we’re damned if we do, damned if we don’t.
Does one need to assume a person has capacity and be able to “prove” they lack it? Or, does one need to assume patients lack capacity and “prove“ they have it?
How does one adequately (within the eyes of the law) weigh up the safety of the patient, the safety of other patients, the safety of staff? As stated above, a patient was discharged by a psychiatrist, murdered someone (or didn’t), and successfully sued the health service for failing to keep him (under MHA). Conversely a person “who breaks legs” is detained (illegally) and acquitted of intentionally injuring a member of staff. Damned if we do, damned if we don’t.
Why do violent people get brought to ED? The police/paramedic assumption seems to be there is a medical/psychiatric/treatable cause and the emergency doctor must show there isn’t.
Consenting for sedation or proving capacity? I think members of the legal profession need to witness the reality we face; possibly drug-affected, possibly alcohol intoxicated, possibly a danger to the public, possibly a danger to themselves/staff/family, possibly medically unwell, possibly injured, often highly distressed/agitated. We’ll just divert resources and time from the other patient with stroke/sepsis/trauma/heart disease to provide an information leaflet and lengthy discussion of risks, benefits, alternatives, let the patient in question weigh up and understand the information and communicate their decision, which might be a bad decision to harm themself or others.
We are time pressured. We are pathology/harm/disease pressured. We are resource pressured. We are information limited. We are not assessing capacity to consent to a surgical procedure, or to commence a blood pressure medicine; we are trying our best to make decisions which are safe for all parties, primarily the patient in front of us and often we are not able to confidently prove or disprove capacity.
The law is black and white, it would seem. The real world is grey and more confusing by the day.
The presumption is that a person has capacity (see for example Mental Health Act 2014 (WA) s 13; see also Victoria, Department of Health Presumption of Capacity (29 May 2015) https://www.health.vic.gov.au/practice-and-service-quality/presumption-of-capacity; Queensland Government, Capacity (9 October 2017) https://www.qld.gov.au/health/support/end-of-life/advance-care-planning/legal/capacity; NSW Capacity Toolkit (2020) chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.tag.nsw.gov.au/sites/default/files/2020-10/CapacityToolkit2020_1.pdf ; Australian Law Reform Commission Capacity and Decision Making (12 November 2013) https://www.alrc.gov.au/publication/equality-capacity-and-disability-in-commonwealth-laws-ip-44/equality-capacity-and-disability-in-commonwealth-laws/capacity-and-decision-making/
The law does not require you weigh up the safety of others. If a person poses a threat to others, then that is an issue for police. If the patient is competent, they can refuse treatment even if that is not in their best interests. The plaintiff in Hunter Area Health Service v Presland  NSWCA 33 was ultimately unsuccessful, and the law was amended to make sure that doctors would not be liable in similar future cases. In Stuart v Kirkland-Veenstra  HCA 15 police were not liable even though they allowed Mr Veenstra to return home where he took his own life. The High Court confirmed that, absent statutory authority (and the conditions for detention under the Victorian Mental Health Act were not present) they had no power to detain him and could not be liable for not doing what they had no power to do.
The law is not as black and white as you suggest because it does take into account the circumstances by the requirement that decisions are ‘reasonable’ in all the circumstances so that considers the urgency and lack of information, but it does not require a balance of all competing interests identified. The doctor’s duty is to make an assessment of the patient and determine whether he or she is competent and what treatment is indicated in the patient’s best interest and subject to the competent patient’s right to refuse treatment even if that is not wise.
For a discussion on the general principles, see Victorian decision on refusing medical treatment – reviewing the principles https://australianemergencylaw.com/2018/11/24/latest-decision-on-refusing-medical-treatment-reviewing-the-principles/ (November 24, 2018).
Finally recognising the complexity identified, Staughton LJ said, In Re T  4 All ER 649: