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:
- Transporting sedated patients in WA (December 30, 2019);
- Relying on the concept of ‘duty of care’ to impose treatment on the unwilling (September 30, 2020);
- 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.
Hello Mr Eburn. I was wondering if there is a definition in law of what constitutes an “emergency”?
No, there’s no ‘universal’ definition of ‘emergency’ but there are some definitions. The State Emergency and Rescue Management Act 1989 (NSW) s 4 defines ‘emergency’ as
… an emergency due to an actual or imminent occurrence (such as fire, flood, storm, earthquake, explosion, terrorist act, accident, epidemic or warlike action) which–
(a) endangers, or threatens to endanger, the safety or health of persons or animals in the State, or
(b) destroys or damages, or threatens to destroy or damage, property in the State, or
(c) causes a failure of, or a significant disruption to, an essential service or infrastructure,
being an emergency which requires a significant and co-ordinated response.
That is, of course, a circular definition as the word ‘emergency’ is in the definition of the word ‘emergency’ but everyone seems to cope with that.
In R v Wells [2016] NSWDC 169 when considering the meaning of emergency for the purposes of the NSW Road Rules, the court said (at [24]) ‘Mr Higgins [counsel for the accused] also relied on the natural and ordinary meaning of the word emergency and noted that the Macquarie Dictionary defined emergency as “an unforeseen occurrence; a sudden and urgent occasion for action”. On appeal, Button J (with whom Gleeson and Harrison JJ agreed) said that an emergency must have ‘at least some aspect of urgency to it’ (Wells v R [2017] NSWCCA 242, [132]).
The Cambridge Dictionary (online) defines ‘emergency’ as ‘something dangerous or serious, such as an accident, that happens suddenly or unexpectedly and needs fast action in order to avoid harmful results’(https://dictionary.cambridge.org/dictionary/english/emergency).
I think the critical issue in all these definitions is that the hazard is ‘actual or imminent’ and a ‘a significant and co-ordinated response’ is required to avoid serious or long term consequences.