As a result of my post No power to detain a patient just because it’s good for them (January 22, 2023) I was invited to speak at the Australian Nursing Federation’s WA Legal Conference in Perth on 19 June. I was reporting on the law following a case where a person was acquitted of injuring a hospital security guard after the guard, in good faith but illegally, tried to bring the person back into the hospital. The original story was reported by David Weber who was at the ANF conference and who reported on my presentation – see David Weber, “Medical law expert issues warning to WA hospital staff over patients who want to leave” ABC (Online) 20 June 2023.
Whilst I was in Perth I also took part in an online CPD session for the Australian College of Emergency Medicine where the issues of patient autonomy and the doctor’s duty were discussed. I anticipate that I will be able to make access to that recording available when the ACEM release it.
I along with colleagues from University of Queensland and the ACEM have submitted a paper to the journal Emergency Medicine Australia. That is yet subject to acceptance but assuming it is published I will also be able to make that available here in due course.
Finally I would like to acknowledge the security officer who was involved in the incident. He has been in contact with me and explained how his injuries became life threatening. The seriousness of his injuries do not determine the legality of the person’s conduct in resisting unlawful detention but do serve to remind health practitioners that if they direct staff to detain a patient, they are putting that staff as well as the patient at risk of physical injury. Where there is no lawful basis for the decision the staff and the hospital may also be at risk of criminal or civil legal proceedings. Before directing a person to be detained health practitioners do need to be sure of the legal basis for their decision and reference to a generic ‘duty of care’ is not sufficient.
See also
- Transporting sedated patients in WA (December 30, 2019); and
- Relying on the concept of ‘duty of care’ to impose treatment on the unwilling (September 30, 2020).
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 
This issue is also alive in mental health, where state/territory laws prescribe a finite set of lawful reasons with requisite thresholds, to detain a patient under the jurisdiction’s mental health act.
The ongoing application of the act, which serves to deprive a patient of their autonomy in the basis of risk and mental illness, is safeguarded by contemporaneous review by a judicial member in the first instance, and a tribunal in the second instance, both within a proscribed period of time.
The interface between Law and Medicine requires a permanent place in the CPD roster, perhaps in both disciplines. That would increase the chance of legal principles, and its ethical underpinnings, becoming a cultural norm in good patient care.