Today’s correspondent says:
I was just wondering if there is anything you could suggest that Hospital security staff should get their head around? It all seems very confusing to me e.g. Duty of care, are we meant to be clinically led and is that any defence of wrongdoing, has a patient been sectioned, are they voluntary or involuntary, can we restrain a patient at any time if we are told to do so…
In the post Publication on detaining patients in the ED (August 29, 2023) I refer the following paper which I co-authored and which is available for free from the journal Emergency Medicine Australia:
Kelly, A.-M., Eburn, M., Cockburn, T. and Senthi, A. (2023), Review article: Detaining patients against their will: Can duty of care be used to justify detention and restraint in emergency departments?. Emergency Medicine Australasia. https://doi.org/10.1111/1742-6723.14299
In that paper we developed a decision-making flow chart on decision making about whether or not a patient in ER can be detained. Hopefully this chart will also assist security staff and is attached to this post.
There is also a link to a webinar that may assist; see –https://vimeo.com/854216186/49c3a4283b.
In summary;
Hospital security (assuming they are not sworn special constables) have no particular legal authority, rights or privileges. They are servants and agents of the hospital – that is they are employed to do the work of the hospital (servants) but also represent the hospital (agents) so anything they do is done by the hospital.
The hospital owes its patients a duty of care -that is a duty to provide reasonable care in the patient’s best interests. It is not a duty to guarantee a good outcome, it is not a duty to impose treatment or care. It is a duty to act reasonably in all the circumstances. A security guard cannot determine what care is clinically indicated so he or she has to be led by the medical and nursing staff if that becomes an issue.
Mental health legislation in every state and territory provides for the detention and treatment of people who are mentally ill and who require treatment. Generally speaking (WA is at least one exception) a person can be detained even if they are competent and are refusing treatment provided the requirements in the Act have been met. If a medical practitioner has taken the necessary steps to examine and detain a person under mental health legislation, then the person is an involuntary patient. A health service should be aware of and teaching hospital security in what circumstances force can be used as this will depend on the terms of the mental health legislation in each state or territory.
You cannot restrain a patient ‘at any time’ just because you are told to do. Patients who are competent are free to leave and free to refuse treatment. Attempting to restrain or detain a patient without lawful authority (and ‘doctor’s orders’ is not legal authority) may be a tort – assault or false imprisonment. In our article (above), my co-authors and I said:
Necessity justifies treatment that can include both physical and chemical restraint where that is necessary to treat a physical condition. For example, it would include placing a patient in an induced coma in order to treat their head injury or maintain their airway. Necessity can also justify detention of a person who is behaving uncontrollably and disruptively and posing an immediate danger to themselves or others… Restraining someone who is an immediate danger to others may also be justified by the law of self-defence, but that would not authorise the administration of any treatment.
If you attempt to detain a person or to impose treatment against their will they are entitled to resist and to use force in the process. This can lead to an escalation of the incident and risks injury to both patient and security staff.
If a security guard’s attempt to detain a person is unlawful, the hospital will be liable. As noted, the guard is the hospital’s agent, they act on behalf of the hospital. The hospital cannot act except through its staff so it is the hospital that has detained or tried to detain the patient so it is the hospital that will be liable for any damages.
For related posts see:
- Tasmania – Alcohol affected patient refuses treatment and is not guilty of assaulting police – Part 2 (October 5, 2015);
- Advising patients who want to leave a hospital emergency department – UK and Australia (October 16, 2018);
- No power to detain a patient just because it’s good for them (January 22, 2023); and
- “Medical law expert issues warning to WA hospital staff over patients who want to leave” (June 22, 2023) (and also the associated article published by the ABC – https://www.abc.net.au/news/2023-06-20/warning-for-wa-health-workers-over-unlawful-detention-hospitals/102497536)
Conclusion
If there is anything I ‘suggest that Hospital security staff should get their head around’ it is the principle that a person is presumed to be competent unless a medical practitioner has determined that they are not; and a competent person is free to leave a hospital whenever they want, whether that is a good idea or not.
POSTSCRIPT 3 November 2023
In Harvey v State of Queensland (Queensland Health) [2023] QIRC 295 the Industrial Relations Commission upheld the decision of Queensland Health to terminate the employment of a senior security officer who ‘Following a brief interaction … struck the Patient on his left thigh three times with an extended metal baton, and this was followed by a physical restraint of the Patient by … three officers where the Patient was secured with handcuffs until the Queensland Police Service (‘QPS’) arrived.’ Further he had followed ‘the Patient down the left side of the ED waiting room created a situation where the Patient had no viable option of egress or exit’. It was said (at [50]):
In attending the incident, the Applicant was required to assess the situation and take action to reduce the risk of harm to staff and other patients. He made no efforts to get other patients out of the room; did not ask a member of staff to evacuate the room; nor did not ask another security officer to evacuate the room. At the time of deploying the baton the Applicant placed staff and other patients at risk.
And at [106]:
The CCTV footage supports the conclusion that there was no indication of a hostage situation, or an imminent threat of a violent attack. Whilst there where verbal threats, this alone did not justify the use of a baton. Ms Peel determined that the actions of the Applicant reduced the ability of the security team to conduct a coordinated restraint and, in turn, decreased the safety of other people in the ED. She concluded that the decision to use the baton was not reasonable, appropriate, or authorised, particularly in circumstances where there was a sufficient number of security officers to conduct a tactical withdrawal of all people at risk in the environment or undertake a physical restraint of the Patient if required, and safe to do so. Such an approach was consistent with the healthcare intervention model.
The failure by the senior security officer to follow his training and instead resort to force led to his termination.
The post above was about legal authority to restrain. This case was not about that but it is interesting that one of the issues was that the security team effectively ‘trapped’ the patient so that he had no means of egress. This was the subject of cross-examination and criticism (see [49]). Letting the patient leave would be a key de-escalation strategy.
This case was also not about vicarious liability. It was not a case where the patient was suing either the security guard or the State of Queensland for damages. That may or may not happen in another court. It would still be my prediction that the State would be vicariously liable for its guard in these circumstances.
What this case is, is an example of another thing ‘hospital security staff [should] … get their head around’ that is if you use excessive force, you can lose your job.
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 
I would argue that a hospital as an employer or contractor of security services would not want to assume legal liability for a security officer who attempted to or did unlawfully assault a patient, even on the orders and instructions of a clinical staff member.
I would think that the individual security officer would be hung out to dry totally by the hospital.
The ‘hospital as an employer or contractor of security services’ does not get to say whether they ‘assume legal liability for a security officer who attempted to or did unlawfully assault a patient, even on the orders and instructions of a clinical staff member’. Whether they are liable or not is a matter of law, not of choice. Here are just some cases where employers have been liable for the wrongful conduct of their security staff – Day v The Ocean Beach Hotel Shellharbour Pty Ltd [2013] NSWCA 250; Bilal Kassem v ACN 075092232 Pty Limited (In Liquidation) (Formerly known as “Australian Event Protection Pty Limited”) [2009] NSWDC 262; Crilly v Bumble Group Pty Limited t/a My Security [2012] NSWDC 3; Mantzios v Mount Pritchard District & Community Club Limited [2010] NSWDC 70; Dean Cameron Smith v Cheeky Monkeys Restaurant [2009] NSWDC 257; Karimi v Rooty Hill RSL Club Limited & Ors [2007] NSWSC 938.
Security guards can be personally liable but not in the circumstances in mind here – see for example Uguzcu v Macquarie Hotel Liverpool Pty Ltd [2016] NSWSC 843 – security guard struck plaintiff on the head, from behind, after the plaintiff had left the hotel;
Dean Cameron Smith v Cheeky Monkeys Restaurant [2009] NSWDC 257 – security guard ‘stomped’ on patron’s head (and yes that case is in both lists as a judgment was entered against both the restaurant and the guard).
Certainly a hospital may not be liable if a person is asked to leave the ED due to inappropriate behaviour and the security guard accosts them in the car park and beats them up; but if a guard is told by the medical staff to stop someone leaving as they haven’t been cleared to go, and the guard goes and puts his or her hand on the patient’s arm to direct them back in, or secures them in a room, or two guards use some degree of force to compel the person to return, the hospital will be liable because it will be the hospital – via its agent – that assaulted and/or falsely imprisoned the patient. And that is true whther the hospital ‘wants’ to assume that liability or not.
Hi Robert.
A comprehensive response, however it does not consider the likelihood that the hospital would argue that the security officer should have known that the instruction from the clinical staff member was unlawful (in line with training received) and that the security officer could reasonably have known this, thus attempting to avoid being held vicariously responsible for the action of its employee, agent or contractor.
Further, nothing listed in your otherwise considered response protects the security officer from being criminally charged, which would again be on the grounds that they should have known what they were doing was wrong, and could reasonably be expected to have known.
‘I was only following orders’ didn’t work at Nuremberg and it certainly wouldn’t work here; the clinical staff member would’ve been the one giving the unlawful instruction, it would be the security officer applying the use of force to restrain, detain and prevent a person leaving the hospital.
Your correspondent is to be commended for his effort to ‘get his head around’ this topic, as it is critically important to realise that whilst their employer may be vicariously responsible for a security officer’s actions at civil law, they can and often will argue to avoid this, and it certainly won’t protect them from criminal charges.
I think I did consider ‘the likelihood that the hospital would argue that the security officer should have known that the instruction from the clinical staff member was unlawful (in line with training received) and that the security officer could reasonably have known this’. I don’t think that argument would be sufficient to avoid liability and I don’t think it’s very likely that a hospital – in particular a public hospital – would run it.
It’s much harder for employers to avoid liability for the torts of their staff than people think – remember schools are being held liable for sexual assault of students by teachers. The point of vicarious liability is to make sure there’s a defendant (and more accurately, an insurer) who can meet the damages.
But, having said that I agree that defendants will give it a go and many of the cases I listed were defendants trying (unsuccessfully) to argue that they were not liable. But those precedents inform insurers who know not to throw good money after bad and public institutions (such a public hospitals) have greater expectation to act as ‘model litigants’ and not push hopeless cases.
Your absolutely right of course that vicarious liability is only about liability to pay civil damages. It has nothing to do with criminal law.