Today’s correspondent is an Intensive Care Paramedic from South Australia who:
… was asked to assist an ambulance officer crew with an elderly patient they were attending. In SA, ambulance officers hold a Cert IV qualification and are not registered paramedics, do not have the ability to sedate nor are they delegated authorised officers by the SAAS CEO with reference to the Mental Health Act 2009 (SA). [For a related discussion see Paramedics are not authorised officers under the Mental Health Act 2009 (SA)(August 18, 2022)].
This crew attended after SAAS was called by a geriatrician and a nurse who had visited the patient at their home, …
The crew arrived and performed an assessment, the patient did not want to go to hospital. The crew determined he had capacity to make this decision and followed appropriate SAAS policy pertaining to this. … As they were about to leave, the geriatrician approached them and stated they had decided to place the patient under a level one inpatient treatment order (I believe relevant legislation is sections 20-23 of MH Act 2009) because they felt he was at risk of falling/not safe at home. The crew did not think this was appropriate, however the doctor insisted that the patient would be conveyed through any means necessary. I was then involved, as sedation of people >65 is within my scope of practice.
My assessment of the patient was consistent with the crew, an elderly man who was able to tell me the exact date, what car he drove, where he went to the shops, why we were there, how we became involved through his relative etc. He appeared in good spirits.
When I asked the geriatrician which mental illness the patient had, she replied “he may have dementia.” At no point did the patient make any threats to harm himself, others, or damage property.
In over ten years of ambulance work, I have never had a geriatrician ITO a patient, nor have I needed to remove a healthy elderly person with capacity from their home. … in my opinion, he did not meet the criteria for an ITO. However, I do not have the legislated capacity to initiate or withdraw an ITO.
My questions are therefore as follows:
- Given I am a registered paramedic, what legal ramifications are there for following an ITO that may not be valid?
- Thankfully, after a number of hours, the patient decided to come to hospital, therefore not requiring physical restraint nor sedation. If I were to provide either restraint and/or sedation to an ITO that is invalid, what are the issues with this? Would this then be considered an assault, for example?
The advice I received from more senior staff was that we can’t do anything if an ITO is put in place and that we are a transport mechanism only. However, in the era of registration, I’m uncertain how this works.
The Law
The Mental Health Act 2009 (SA) s 20 says:
(1) A medical practitioner or authorised mental health professional may make an order that a person receive treatment as an inpatient in a treatment centre (a “level 1 inpatient treatment order”) if it appears to the medical practitioner or authorised mental health professional, after examining the person, that—
(a) the person has a mental illness; and
(b) because of the mental illness, the person requires treatment for the person’s own protection from harm (whether physical or mental, and including harm involved in the continuation or deterioration of the person’s condition) or for the protection of others from harm; and
(ba) the person has impaired decision-making capacity relating to appropriate treatment of the person’s mental illness; and
(c) there is no less restrictive means than an inpatient treatment order of ensuring appropriate treatment of the person’s illness.
(2) In considering whether there is no less restrictive means than an inpatient treatment order of ensuring appropriate treatment of the person’s illness, consideration must be given, amongst other things, to the prospects of the person receiving all treatment of the illness necessary for the protection of the person and others on a voluntary basis or in compliance with a community treatment order.
According the Act (s 3), mental illness means ‘means any illness or disorder of the mind’. That is a very broad definition and gives little assistance. The Diagnostic and Statistical Manual of Mental Disorders 5 (American Psychiatric Association Publishing, 2022) says
Dementia is subsumed under the newly named entity major neurocognitive disorder …
… the major NCD definition is somewhat broader than the term dementia, in that a diagnosis of major NCD can be made if there is a significant cognitive decline in only one cognitive domain, whereas a diagnosis of dementia in ICD-10 and ICD-11 (and formerly in DSM-IV) requires multiple cognitive deficits…
This is not the place for a clinical discussion suffice to say that a ‘major neurocognitive disorder …’ (which includes dementia) is a mental illness.
The Mental Health Act s 5A says this about capacity:
For the purposes of this Act, a person will be taken to have impaired decision-making capacity in respect of a particular decision if—
(a) the person is not capable of—
(i) understanding any information that may be relevant to the decision (including information relating to the consequences of making a particular decision); or
(ii) retaining such information; or
(iii) using such information in the course of making the decision; or
(iv) communicating his or her decision in any manner;…
(d) a person’s decision-making capacity will not be taken to be impaired merely because a decision made by the person results, or may result, in an adverse outcome for the person.
A person may have capacity and still have a mental illness. What the Act requires is (s 21(1)(ba); emphasis added) is ‘impaired decision-making capacity relating to appropriate treatment of the person’s mental illness’. The person may be orientated as to time and place, they may have capacity to make some decisions, but may not have capacity to understand etc the information relating to their mental illness.
Finally, before making the order ‘consideration must be given …to the prospects of the person receiving all treatment of the illness necessary for the protection of the person and others on a voluntary basis or in compliance with a community treatment order.’
Section 56 deals with the power of authorised officers (which includes SAAS employed and volunteer ambulance officers authorised by the chief executive officer of SAAS (s 3)) to transport mentally ill patients. That section says:
(1) This section applies to a person if—
(a) an authorised officer believes on reasonable grounds that the person is a patient in respect of whom— …
(ii) a patient transport request has been issued under section 55(1); or …
(c) it appears to an authorised officer that—
(i) the person has a mental illness; and
(ii) the person has caused, or there is a significant risk of the person causing, harm to himself or herself or others or property or the person otherwise requires medical examination.
A ‘patient transport request’ may be made by the doctor who makes the level I inpatient order. The request (s 55(2)):
… must be—
(a) directed to authorised officers and police officers generally; and
(b) in writing in the form approved by the Chief Psychiatrist.
A patient who is taken into the care of an ambulance officer must be given a copy of the request and a written ‘statement of rights’ (s 55(3)).
Where there is a patient transport request or the officer is of the opinion that s 56(1)(c ) (quote above) applies, then the authorised officer may (s 56(3); emphasis added):
… exercise the following powers in relation to a person to whom this section applies:
(a) the authorised officer may take the person into his or her care and control;
(b) the authorised officer may transport the person from place to place;
(c) the authorised officer may restrain the person and otherwise use force in relation to the person as reasonably required in the circumstances;
(d) the authorised officer may restrain the person by means of the administration of a drug when that is reasonably required in the circumstances;
(e) the authorised officer may enter and remain in a place where the authorised officer reasonably suspects the person may be found;
(f) the authorised officer may search the person’s clothing or possessions and take possession of anything in the person’s possession that the person may use to cause harm to himself or herself or others or property.
If the authorised officer takes ‘the person into his or her care and control’ then the officer (s 55(4)(a); emphasis added):
… must, as soon as practicable—…
(b) in the case of a person referred to in subsection (1)(b) [ie a person for whom a patient transport request has been issued] —transport the person, or arrange for the person to be transported by some other authorised officer or by a police officer, to a treatment centre; or
(c) in the case of a person referred to in subsection (1)(c) [ie where the paramedic is acting on their own initiative] —
(i) transport the person, or arrange for the person to be transported by some other authorised officer or by a police officer, to a treatment centre or other place for medical examination;…
Discussion
That is a lot of law to make sense of. If we go back to the given facts we’re told ‘the geriatrician approached them and stated, they had decided to place the patient under a level one inpatient treatment order’. That they had ‘decided’ to make a level 1 treatment order is not sufficient. They have to actually make the order. And the order has to be in writing (s 51(3)). If they want the ambulance service to transport the patient they have to complete, in writing, a patient transport request (s 55(2)). If those documents are not completed and, in this case, handed to the ambulance officers there is no order.
In that case the only power the ambulance officer has to detain and transport the patient is under s 56(1)(c) that is if the officer forms their own opinion that
(i) the person has a mental illness; and
(ii) the person has caused, or there is a significant risk of the person causing, harm to himself or herself or others or property or the person otherwise requires medical examination.
We’re told that in this case the ambulance officers did not hold those opinions.
First conclusion
Either an ITO has been made, or it has not. If a doctor says words to the effect ‘I’m going to complete an ITO, in the meantime I want you to take the patient to hospital’ that is not sufficient. The doctor must complete the ITO and the patient transport request.
The patient transport request is directed to authorised officers and police ‘generally’ so it may be that the officers don’t actually have the document in their possession, but it has to exist, and the fact of its existence must be communicated to the officers before they can believe ‘on reasonable grounds that the person is a patient in respect of whom— …a patient transport request has been issued …’.
Section 56 says that an authorised officer, having received or being aware of those documents may take the person into their care and control and then must transport them. The fact that taking them into their care and control is phrased as ‘may’ does not, I think, give absolute discretion. The intention is the person is to be transported but a police officer for example may decide not to take the person into their care and control because an ambulance officer is there. And if an officer forms the view that s 56(1)(c) applies he or she may not take the person into their care if satisfied someone else will take the person to a treatment centre.
I would agree that if an ITO has been made (ie it has been put in writing, not a mere statement of intention) and a patient transport request has been made, then it is the duty of the ambulance officers to transport the patient subject to what I will say below about paramedic ethics. They cannot say ‘I may, but I chose not to’ just because they think the doctor should not have made the order.
If an ITO has not been made, even if a doctor says that he or she intends to make it, or the doctor says that they are of the view that the patient meets the criteria for transport then that is not sufficient. In that case the paramedics must be satisfied that s 56(1)(c) applies (and the doctor’s opinion would be something they should consider) but if after considering everything they are of the view that s 56(1)(c) does not apply then they should not take the patient into their care and custody. If they do that could be both an assault and a false imprisonment.
Paramedic code of conduct
Even if giving effect to an ITO that you think should not have been made is lawful, it does not mean that it is the right thing to do. Paramedics are registered health professionals. The Code of Conduct is relevant here. It says (inter alia):
1. Put patients first – Safe, effective and collaborative practice
Principle 1: Practitioners should practise safely, effectively and in partnership with patients and colleagues, using patient-centred approaches, and informed by the best available evidence to achieve the best possible patient outcomes….
5. Working with other practitioners
Principle 5: Good relationships with colleagues and other practitioners strengthen the practitioner-patient relationship, collaboration and enhance patient care. Good relationships require healthcare to be free of discrimination, bullying and harassment.
5.1 Respect for colleagues and other practitioners
Good care is enhanced when there is mutual respect and clear communication between all health professionals involved in the care of the patient.
Good practice includes that you:
a. communicate clearly, effectively, respectfully and promptly with colleagues and with other practitioners caring for the patient
b. acknowledge and respect the contribution of all practitioners involved in the care of the patient, and
c. behave professionally and courteously toward colleagues and other practitioners at all times, including when using social media.
This has implications where the paramedic disagrees with the doctor regardless of whether an ITO has been made or not. The focus on patient centred care and working with colleagues means that a paramedic should raise their concerns if they think the criteria for transport or the making of the ITO has not been met. A paramedic would need to understand that the factors for making an ITO are not the same as the factors that a paramedic needs to consider when deciding to take someone into their care and control on their own initiative. Respect for colleagues means recognising that a doctor and in particular a specialist geriatrician or mental health practitioner may be better placed to make a diagnosis but that should not stop a fellow health practitioner (ie a paramedic) raising concerns to make sure that the doctor is confident in their diagnosis and that patient care (rather than getting off on time, or covering your arse) is given priority.
Failure to ‘communicate clearly, effectively, respectfully and promptly with colleagues’ could amount to unsatisfactory conduct if there are poor patient outcomes and where the paramedic had concerns about the proposed treatment.
In an extreme case a paramedic could be justified in refusing to transport. The sort of case I have in mind is where the paramedic’s assessment goes beyond a mere difference of opinion and he or she is satisfied that the doctor is acting in bad faith. For example if a GP on a house visit, faced with a patient who refuses, against advice to consent to transport to hospital and the doctor says “I haven’t time for this, I’ll complete an ITO and the hospital can deal with it’. Or a doctor who tells the patient’s family that treatment cannot be imposed but who, after concerted pressure, says ‘I’ll complete an ITO and then the ambulance will take him” and who then admits to the paramedic that it was the only way to keep the family quiet. One would hope those situations would never arise and that’s not the situation described in the given facts. Suffice to say that if there is no doubt that the doctor is signing an ITO for an improper purpose and the paramedic can see nothing to suggest the patient is mentally ill then I think the paramedic could be justified in refusing to transport. However before it go to that, consistent with the discussion above, one would hope the paramedic raises their concerns with the doctor and if necessary through the SAAS chain of command.
Second conclusion
The Code of Conduct and paramedic status means it cannot be true that ‘we can’t do anything if an ITO is put in place and that we are a transport mechanism only’. Paramedics are health professionals and if you are going to care for the patient you need to understand on what basis the doctor has made the ITO and if your assessment of the situation raises questions, you need to ask them.
Conclusion
The questions asked were:
- Given I am a registered paramedic, what legal ramifications are there for following an ITO that may not be valid?
The ITO is written by a doctor and the doctor is accountable for his or her decision and demonstrating that they considered the factors listed in s 21 and only those factors. If they have written an ITO and a patient transport request, then a paramedic may exercise those powers in s 56 and must transport the patient. The paramedic would have a defence to any allegation of assault or false imprisonment given the statute.
The legal ramifications for the paramedic are if he or she assesses the scene and has doubts about the ITO (remembering that the criteria for an ITO are not the same as the criteria a paramedic must apply if they are making the decision to transport a patient) then I think the paramedic is obligated to raise his or her concerns either with the doctor or the chain of command. Failure to do so could be grounds for a professional complaint for failure to honour the paramedicine code of conduct.
- .. If I were to provide either restraint and/or sedation to an ITO that is invalid, what are the issues with this? Would this then be considered an assault, for example?
If it turns out the doctor has issued an ITO and patient transport request in circumstances not justified by the Act then that would not deny the paramedic a defence based on the statute. The ITO has been issued, the paramedic may do those things listed in s 56 provided of course that they represent good paramedic care and are in accordance with SAAS clinical practice guidelines. If you believe the ITO has been issued and the only way to safely transport the patient is to sedate them then you can do that even if you would not have made a decision to transport under s 55(1)(c).
As noted above however, if you have concerns about the doctor’s decision making you need to raise them, and the doctor needs to consider your views. If the doctor confirms that they are satisfied that the criteria for the ITO and the patient transport request have been met then you can act, but you should make sure you record your conversation and concerns.
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.
Australian Emergency Law 