Today’s correspondent is a:
… security officer in a major Sydney hospital [who] would like [my thoughts] … on an issue we are facing. We have a patient who is an adult and was declared by the hospital doctor to have capacity, was not scheduled and parents wanted to take him home.
The doctor demanded that security physically stop him from leaving as we are to comply with a lawful medical direction. My question is am I liable to prosecution as I believe this was not a lawful demand and can I be sued in civil court.
It’s a shame that it must be constantly stated – a competent adult can refuse medical care at any time and for any reason. The test is competence not wisdom. It may be a bad decision, but it is their decision.
Of course I have no idea why the doctor wants the person stopped and there may be more complex issues but taking the story on its face.
As an employee you are obligated to obey the reasonable directions of your employer. The doctor is not your employer. A doctor doesn’t have the right to detain a mentally competent adult and cannot authorise anyone else to do so. Even if it was part of your duties to ‘comply with a lawful medical direction’ a direction to physically stop a mentally competent adult from leaving a health facility would not be a ‘lawful’ direction.
Could you be liable to prosecution for restraining the patient? Yes indeed. An honest belief in facts that if true would make the act innocent is a defence – so an honest belief that the patient was not competent may be a defence, but you do not hold that belief. A belief that the doctor had the authority to issue the direction would be a mistake of law, not of fact. Mistake of law is no defence so even if you thought the doctor’s direction was a lawful authorisation that would not be a defence.
Can you be sued? Again, the answer is yes but here that is unlikely. The patient, if they wanted to sue anyone, would sue the hospital as they would have the funds to pay the damages and they are responsible for your training and the doctor’s training. If there was a failure to protect the patient the failure is the hospital’s failure.
See also:
- No power to detain a patient just because it’s good for them (January 22, 2023);
- “Medical law expert issues warning to WA hospital staff over patients who want to leave” (June 22, 2023);
- Publication on detaining patients in the ED (August 29, 2023); and
- What should ‘hospital security staff … get their head around’? (October 26, 2023).
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 
It’s my belief that there was a civil case settled in South Australia a few years ago following the detention of an emergency department patient. I believe that a medical officer instructed the detention of a patient by security in the absence of a respective detention order.
I believe there were three parties, SA Health, the hospital contracted security provider (SA Health contracted) and the patient.
If the case settled, unfortunately we’re unlikely to be able to find details of what happened and on what basis the matter settled.
This question comes up all the time in acute mental health settings. Doctors, including Psychiatrists, wield enormous powers to detain someone against their own autonomy. However, since the early 1990, this power is limited by legal tests founded on the the assumption of autonomy as a higher obligation than a medico wanting to ‘do good’.
In combination with Beauchamp’s ethical principles, autonomy and justice are higher obligations. Hence, a patient who has sufficient capacity can make their own decision, even bad ones that doctors don’t agree with.
To contextualise this question is that Psychiatrists have to deal with risk and risk management all the time. We feel the weight of this each time we discharge a patient. We are often held responsible for an adverse outcome, and oftentimes anticipate being blamed even if we have considered autonomy, capacity, informed consent, and risk motivations such as follow up and immediate supports.
This question will continue to arise because the dilemma on the ground nests on risk management, complicated by often complex clinical presentations that don’t have immediate legislature protections to offer declarative relief.
I have a follow up question on how detaining a patient who is not under the mental health act but DOES lack capacity is legal (in NSW).
Take for example a patient delirious due to a medical illness. The Guardianship Act has provisions to provide treatment of the illness but fails to specify that the patient can be detained (often the more dramatic and confrontational aspect). On the other hand the Mental Health Act allows for the detention of a Mentally Disordered person (which seems to fit a delirious patient) but not necessarily the treatment of their physical illness.
In such cases I have seen a patient detained under the mental health act AND treated under the guardianship act. Seems a little clunky…
The answer is that detention that is part of their treatment is justified by both Guardianship type legislation and by the doctrine of necessity – see the judgement of Goff LJ in In Re L [1998] UKHL 24. See also https://australianemergencylaw.com/2023/08/29/publication-on-detaining-patients-in-the-ed/