After publishing Doctor cannot require security to detain a competent adult (December 2, 2023) I received the following related question:

I work at a major Sydney Hospital (NSW Health) as a Security Officer we are currently being advised by our management team and executives that if we are instructed by a Doctor, nurse or paramedic to Restrain or Detain a patient as a “Duty of care” even if the patient is not scheduled under the mental health act and also has full capacity that we are still to follow the clinicians directions? Can you please provide some information on the above question and also if you are aware of any Security officers which have been terminated or sued civilly??

Am I ware of any Security officers which have been terminated or sued civilly??  Not in the circumstances you describe but in the case discussed in the post No power to detain a patient just because it’s good for them (January 22, 2023) the patient was acquitted of causing grievous bodily harm after the security guards ankle was fractured.

Addressing jury members before they retired to consider their verdict, Judge Black said the man was entitled to leave.

“He was unlawfully brought back into the hospital, and after force was unlawfully applied to him, he was then unlawfully detained and put onto a stretcher, and kept in hospital overnight.”

Judge Black said nobody was suggesting the hospital staff acted with malice, and “no-one was deliberately trying to breach the accused man’s rights”.

But to reinforce her main point, she said, “the law is that he should have been allowed to leave”.

“No one was allowed to touch him.”

It should not need to be restated (but clearly it does; and that’s a reflection on the ‘management team and executives’, not my correspondent) that a patient cannot be detained just because its good for them.  There is no duty to protect people from their own choices (Stuart v Kirkland-Veenstra [2009] HCA 15).  Anyone who thinks paramedics, nurses or doctors can instruct anyone ‘to Restrain or Detain a patient as a “Duty of care” even if the patient is not scheduled under the mental health act and also has full capacity’ has failed bioethics 101. If anyone thinks they can detain someone because the person should have treatment or examination has missed the point of consent in medical care.

Some law references say:

  • The fundamental principle, plain and incontestable, is that every person’s body is inviolate (Collins v Wilcock [1984] 3 All ER 374).
  • … all medical treatment is preceded by the patient’s choice to undergo it (Rogers v Whitaker [1992] HCA 58)
  • Personal autonomy is a value that informs much of the common law. It is a value that is reflected in the law of negligence. The co-existence of a knowledge of a risk of harm and power to avert or minimise that harm does not, without more, give rise to a duty of care at common law… (Stuart v Kirkland-Veenstra [2009] HCA 15)
  • There can be no duty to act in a particular way unless there is authority to do so. Power is therefore a necessary condition of liability… (Stuart v Kirkland-Veenstra [2009] HCA 15).

In other words, a duty of care to act can only arise if there is authority. It is not a source of authority. In Stuart’s case police failed to detain Mr Veenstra who then took his own life. The High Court in a unanimous decision said there was no breach of duty to Mr Veenstra as there was no power, and so no duty to detain him.

A ‘a Doctor, nurse or paramedic’ cannot have a duty to restrain or detain a person who ‘is not scheduled under the mental health act and also has full capacity’.  If that person wants to leave, they can go.  For further discussion see:

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.