Today’s correspondent says:

As you may be aware, from early November public drunkenness will no longer be a criminal offence in the state of Victoria. Persons who are drunk in public but commit no other criminal offence will now be managed with a health response rather than a police response. I fully support these changes.

However, these changes have got me thinking about how paramedics will function as part of the health response. I believe the government will be funding new “sobering up centres” where alcohol effected persons can be transported to a safe place for support and care until they are sober. However, I believe patients can only be transported here if they consent to do so.

This then leads me to a question about what paramedics can do in a situation where a person being attended by paramedics is drunk in a public place but is refusing to attend a sobering up centre. The hypothetical person has committed no criminal offence, but paramedics believe that due to the person’s level of intoxication they do not have capacity to consent, and paramedics believe the patient may be a danger to themselves if left where they are. In this instance, would there be a legal basis for transporting the patient to hospital or another safe space (e.g. the patient’s residence with an appropriate carer) to ensure the patient’s safety?

It is my understanding that in this instance the patient could not be detained under section 351 [of the Mental Health Act 2014 (Vic)] by police unless the patient was also believed to be experiencing a mental illness alongside the intoxication. The Ambulance Victoria clinical guidelines suggest that when a patient does not have capacity to consent, paramedics should “act in the best interests of the patient” however I’m curious as to what the actual legislation to support this would be.

The changes to Victorian law are being made by the Summary Offences Amendment (Decriminalisation of Public Drunkenness) Act 2020. This Act will remove ss 13 to 16 from the Summary Offences Act 1966 (Vic). Those sections are:

13 Persons found drunk 

14 Persons found drunk and disorderly 

15 Arrest of person found drunk or drunk and disorderly 

16 Drunkards behaving in riotous or disorderly manner 

The Department of Health Public intoxication reform webpage says:

Ambulance Victoria and Victoria Police will continue to provide a response in instances of public intoxication where there are emergency health risks or community safety risks. In the absence of such risks, police officers will provide support to individuals in need of assistance, including referrals to the new health-led services where appropriate and available.

For police, in the absence of community safety risks, this may include providing general support such as contacting friends or family, arranging transport or contacting alternative local support services, or contacting an ambulance where an emergency health response is required. They may ultimately leave a person in place where support is no longer required, or consent is not provided. As they currently do, police will continue to contact ambulance services where a serious health risk is identified.

For ambulance services, there is expected to be limited change to current responses. Ambulance services will continue to respond to people who require emergency care and, if necessary transport them to emergency departments. They may also contact police if there are community safety risks.

There is to be no Victorian equivalent of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 206 (see Ashleigh Barraclough ‘Decision not to give Victoria Police new powers when public drunkenness is decriminalised draws union criticism‘ ABC News (Online) 17 January 2023)). The NSW section allows NSW Police to detain an intoxicated person because they are ‘in need of physical protection’.  That there is to be no equivalent in Victoria is not surprising, given the finding published on the Victorian Department of Health Public intoxication reform webpage that current laws:

…  have disproportionately impacted Aboriginal and/or Torres Strait Islander communities and people who would benefit from health and social support, rather than a criminal justice response…

Following decriminalisation, no person will be placed in a police cell or arrested solely on the basis of intoxication.

Victoria Police’s primary role in responding to people intoxicated in public will be limited to where community safety risks or criminality are present. The police response will be informed by the behaviour of the person, rather than the intoxication itself.

A section similar to the NSW section would be inconsistent with the stated aims. If police could still detain people, even if the basis was protective rather than criminal, it would still see people being put into police vehicles and cells, encourage conflict with police that may in turn lead to offending and criminalisation, and take people away from more culturally appropriate care.

Equally detention under Mental Health legislation would be inconsistent with the stated aims.  In Victoria police have the power to detain a person (Mental Health Act 2014 (Vic) s 351) if

(a)        the person appears to have mental illness; and

(b)       because of the person’s apparent mental illness, the person needs to be apprehended to prevent serious and imminent harm to the person or to another person.

Being intoxicated is not the same as being mentally ill. The mentally ill however may be intoxicated but if the aim is to get police to respond to the behaviour, not the intoxication per se, then just because a person is mentally ill and intoxicated would not alone, justify detention under that Act.

If the person is not committing a crime and is not a risk to community safety, they are free to accept the services offered, or not.  The Health Department envisages ambulance only being involved where the person requires emergency health care.

Paramedics require the patient’s consent or some other lawful justification or excuse before they can administer care to a patient. From that perspective it is important to remember that a person may be mentally ill but still competent to give or refuse consent to care; a person may not be competent to give or refuse consent but not be mentally ill (eg the unconscious, the young, the intoxicated etc).  Competence and mental illness are not synonymous. Equally a person may be intoxicated and competent even if the decision they make when intoxicated is not the decision they would make when sober, and even if they are likely to regret their decision in the morning.

A patient is not competent if they are not able to understand the information being provided and take that into account when making a decision. In the post Victorian decision on refusing medical treatment – reviewing the principles (November 24, 2018) I said:

The appropriate test for capacity, both at common law and under the Victorian legislation, is a functional test, that is the question is ‘whether, at the time the decision had to be made, the person could understand its nature and effects’.  It is not an outcome test that is whether it is a good or wise decision…

As Lord Donaldson MR (Butler-Sloss LJ agreeing) stated in In Re T:

[The] right of choice is not limited to decisions which others might regard as sensible. It exists notwithstanding that the reasons for making the choice are rational, irrational, unknown or even non-existent …

Butler-Sloss LJ added:

A decision to refuse medical treatment by a patient capable of making the decision does not have to be sensible, rational or well-considered.

An intoxicated person may reject advice, or having heard the advice make a bad decision but that does not deny their competence.  If, on the other hand, are so intoxicated that they cannot hear and comprehend what is being said to them, then care that is in their best interests and reasonable in all the circumstances can be provided. If for example the person is so intoxicated that they have passed out, then they can be treated as can any unconscious person.  The justification is not in the legislation but the common law  – see:

For paramedics, the decriminalisation of intoxication should make no difference to the practice.  Whilst public drunkenness is illegal, it does not affect the person’s right to give or refuse consent to treatment.  Whether the person has committed a criminal offence, or not, is irrelevant to the question of whether they can, or have, consented to paramedic care.

Conclusion

It’s not legislation, it’s the common law but the justification to treat the person who is not competent because of their intoxication is the same justification that allows paramedics to treat a person who is not competent because of their age, their injuries, their developmental disability, or any other cause of incompetence. 

If the patient is competent, they can refuse treatment even if, objectively, that is not a good idea or in their best interests.

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.