This question appears as a comment on the post Treating those without capacity to refuse consent (May 7, 2017):

Following on from the questions above, the WA Guardianship and Administration Act (GaAA) also has similar but slightly different provisions in this area:

In sections 110ZH, 110ZI, 110ZK it contains provisions for doctors in certain circumstances, to provide “urgent treatment” to patients who are “unable to make reasonable judgements in respect of the treatment”, without their consent.

The use of reasonable force and restraint is often be practically required in order to able to provide the urgent treatment to such patients that is allowed by this legislation and it is therefore “implied” by this Act.

Would you agree, that in order to treat such patients without decision making capacity, in order to apply these provisions of the GaAA this would provide an implied right to use force to do so?

Do you know of any case law that has supported the reasonable use of force in application of various state Guardianship Acts?

If so, this would create a “lower threshold” to overcome in order to use force to apply treatment in a patient who was not competent, compared to the Doctrine of Necessity which would I understand requires the pre-requisite of “imminent peril” or “inevitable and irreparable evil”.

Relevant case law

I am not aware of any case law that has discussed the use of force in these types of provisions.  The use of restrictive practices (ie ‘any practice or intervention that has the effect of restricting the rights or freedom of movement of a person with disability’ National Disability Insurance Scheme Act 2013 (Cth) s 9) is regulated by the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth). These regulations apply to NDIS service providers, not medical and nursing practitioners in a hospital providing urgent medical care ie in the situations anticipated by the Guardianship and Administration Act 1990 (WA) s 110ZI (discussed in detail, below).

There is case law about the use of restrictive practices where substitute decision makers (including a court or tribunal) are asked to give consent. For example, TZD [2021] NSWCATGD 14 involved an application for a guardianship order to allow the use ‘of medication for TZD to manage his agitated and unpredictable behaviours associated with Lewy Body Dementia’ but that was not part of urgently required medical care. 

I am not aware of any case where there has been litigation over a decision to deliver urgent care, without first seeking consent from a substitute decision maker but instead relying on a provision like s 110ZI.

The legislation

Legislation in WA and all states allows for treatment to be given without first obtaining consent where the patient themselves is unable to give consent (see Guardianship and Management of Property Act 1991 (ACT) s 32N; Guardianship Act 1987 (NSW) s 37; Advance Personal Planning Act 2013 (NT) s 54 and Emergency Medical Operations Act 1973 (NT) s 3; Guardianship and Administration Act 2000 (Qld) s 63; Consent to Medical Treatment and Palliative Care Act 1995 (SA) s 13; Guardianship and Administration Act 1995 (Tas) s 35V; Medical Treatment Planning and Decisions Act 2016 (Vic) s 53). The use of force is specifically provided for in Queensland where the Guardianship and Administration Act 2000 (Qld) s 75 says ‘A health provider and a person acting under the health provider’s direction or supervision may use the minimum force necessary and reasonable to carry out health care authorised under this Act.’ 

The Guardianship and Administration Act 1990 (WA) s 110ZI says:

(1)        Subsection (2) applies if —

(a)        a patient needs urgent treatment; and

(b)       the patient is unable to make reasonable judgments in respect of the treatment; and

(c)        it is not practicable for the health professional who proposes to provide the treatment to determine whether or not the patient has made an advance health directive containing a treatment decision that is inconsistent with providing the treatment; and

(d)       it is not practicable for the health professional to obtain a treatment decision in respect of the treatment from the patient’s guardian or enduring guardian or the person responsible for the patient under section 110ZD.

(2)        The health professional may provide the treatment to the patient in the absence of a treatment decision in relation to the patient.

Even without an equivalent to Queensland’s s 75, the authority to treat the person must imply the use of ‘force’ because any touching in the provision of medical care is a use of ‘force’ (Collins v Wilcock [1984] 3 All ER 374). Giving an injection, applying a bandage, sedating and intubating the patient, performing a surgical procedure – in fact any touching at all – are examples of ‘force’.  The use of force is not something separate from the treatment it is inherent in the idea of medical treatment and that is why the section is there.  The critical issue is that the ‘force’ must be clinically indicated in the patient’s best interests. Securing a patient to stop them injuring themselves and to facilitate the delivery of other procedures would be part of the treatment authorised by the Act.  If the use of force is intended to stop the patient hurting others, then it is not the Guardianship Act that is relevant but the law of self-defence which says reasonable force may be used to protect oneself or others even if the person posing the threat could not be charged with an offence because of their mental state – see The Criminal Code (WA) s 248.

Conclusion 1

I infer that the author of the question sees a distinction between force and medical care. I do not agree that there is such a distinction. If it is necessary to restrain a person in order to be able to perform other procedures, then the restraint – if it is reasonable and in the patient’s best interests is as much part of their treatment as any other procedure. All involve the use of force, and all are permitted by the Act. 

Common law v statutory provisions

The question asks whether the statutory provisions give rise to:

… a “lower threshold” to overcome in order to use force to apply treatment in a patient who was not competent, compared to the Doctrine of Necessity which would I understand requires the pre-requisite of “imminent peril” or “inevitable and irreparable evil”.

The post to which this is a comment say that the doctrine of necessity is not a doctrine of emergency.

First for necessity to apply there does not have to be a ‘life threatening condition’ (though the one’s suggested in this post may well be life threatening) nor does the patient have to be unconscious.  Taking a lost child by the hand and guiding them to a police station would be justified by necessity.   As Lord Goff said:

“Take the example of an elderly person who suffers a stroke which renders him incapable of speech or movement. It is by virtue of this principle [necessity] that the doctor who treats him, the nurse who cares for him, even the relative or friend or neighbour who comes in to look after him, will commit no wrong when he or she touches his body.”

Section 110ZI only applies when treatment is required as a matter of urgency. The doctrine of necessity is not so restricted. The reason s 110ZI is there is because of the provisions on substitute decision making (ss 110ZD to 110ZG). Section 110ZI makes it clear that the medical staff do not have to go through those processes when treatment is urgently required.

Even if necessity requires ‘inevitable and irreparable evil” then that would not be significantly different to the requirement of urgency in s 110ZI. 

Conclusion 2

Necessity, when applied in the context of a patient who is unable to communicate, recognises that failure to provide care to those in need is unacceptable so treatment that is reasonably necessary and in the patient’s best interests can be provided. It does not require that the treatment is required urgently. In that sense I think the common law imposes a lower bar than the legislation rather than the other way ‘round.


Section 110ZI allows for the use of force but force is not separate from medical treatment, it is part of the medical treatment where it is clinically indicated and in the patient’s best interests and that can include restraining a patient to allow other procedures to be performed or to stop them injuring themselves.

Section 110ZI does not create a lower threshold than the common law principle of necessity.  Necessity, requires that the treatment given to someone who is incapable of making their own decision, is reasonable and in the patient’s best interests.  It does not have to be urgent.

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