Today’s correspondent says:

Your 2015 article [Treatment in a Victorian hospital carpark (August 19, 2015)] has been referred to by a MH [Mental Health] nurse working with VicPol on Mental Health & Police Response unit in an email she circulated regarding a recent case that did not go well.

They had an incident recently where a mental health patient created a significant issue in the carpark and 4 police officers attended. The police had and are still in disagreement with the hospitals refusal to engage a patient in the carpark, regarding why the hospital didn’t assist when they were requested to do so by members on scene with the patient.

Usual practice would be to call AV for patients needing extrication from cars or other management in their car park. In this case AV were not called as the Police were intent on the hospital managing the patient.

Subsequent discussion has identified issues (other than the public land issue) such as how the hospital would manage a patient requiring chemical restraint, care & control who is not on their premises and how the ED would continue to function when they are several staff down in a small rural ED because staff are tied up out in the street.

This was possibly an unusual case in the context of your article as the carpark is technically a public street and is entirely under the control of the Shire Council. Effectively the patient in their carpark is on the street/public road way.

Does this change the advice that you would give on obligation to hospitals to treat patients outside of the hospital building?

No it doesn’t change my advice because may advice was general and will continue to be so.  As I said in that earlier post:

A hospital, particular one that operates an emergency department, is holding itself out as providing a service to anyone that comes to its doors (Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428). Even if there was no emergency department a hospital, like the occupier of any building, must owe a duty to people who are on its premises.

But here the person was not on the hospital’s premises. The hospital is not the occupier of the street as it is the occupier of a car park. There has to be a limit on what a hospital can do but it does owe a duty of care to anyone on its premises, but not necessarily to those not on its premises (but see contra, Lowns v Woods (1996) Aust Torts Reports 81-376). 

In that earlier post I said:

Does that mean hospital staff have to attend to every request?  The answer has to be yes, they have to respond but what the response is will vary with the circumstances.  If everyone is engaged treating a patient with life threating injuries they may not be able to leave.  If the person is outside the hospital grounds or even too far from A&E then it may be appropriate to call someone else, another doctor, nurse or the paramedics – either those in the hospital or to make a triple zero phone call.  In some cases the reasonable response would be to tell the person who is seeking assistance to call triple zero.

If a person ran to an ED and said ‘my friend’s collapsed 10 minutes away’ there would be a duty to do something, but it may be no more than telling the friend to ‘ring an ambulance’ and perhaps even making a phone available if they don’t have one.  But it couldn’t be ok to do nothing – to simply say ‘that’s not our problem, please leave’.  There would have to be a duty to at least give some advice (see Duties owed to patients in ED (July 17, 2023); Advising patients who want to leave a hospital emergency department – UK and Australia (October 16, 2018)).

As my correspondent has noted there may have been many good reasons why the reasonable response in the circumstances was to leave the matter to the police.

When we talk about ‘duty of care’ etc where talking about civil liability in negligence. That is could the patient have sued the hospital?  In the earlier post it was the patient’s friend who approached the ED, and the patient had neck injuries. I think it is easier to argue that if the ED staff had attended or warned the friend not to move the patient until the paramedics got there it would have reduced a risk. In this case it’s not clear what the ED staff, if they had gone, could or would have done to make a difference to the outcome for the patient. 

I would stand by my first two concluding points:

1. That the hospital owes a duty of care to persons who arrive seeking assistance, even if they don’t make it into the doors. …
2. Where there is a duty of care, it may not require personal intervention, sending someone to assist, such as a paramedic, may be sufficient.

Or, in this case, leaving it to police. But if police are the ones asking for help there would at least need to be some reasoned consideration of why they did not go to assist.  If the patient suffered harm and could show that intervention from the hospital staff would have made a difference, then the hospital would need to have an explanation of why it did not assist.  That ‘the hospital [could not] manage a patient requiring chemical restraint, care & control who is not on their premises and how the ED would continue to function when they are several staff down in a small rural ED because staff are tied up out in the street’ might all be perfectly legitimate reasons to do nothing.

Conclusion

The facts here do not change my opinion. In my earlier post I said a hospital must owe a duty of care when someone comes to the ED seeking assistance and when someone needs assistance on the hospital’s property.  I stand by that. In this case the patient was not on the hospital’s property so that second ground doesn’t apply; but the ED was approached by police seeking assistance with a medical case.

There must have been a duty of care but at its most general that duty is a duty to consider the request. There may be very many good reasons why the appropriate response was ‘we cannot help there; you have relevant powers, you bring the patient to us and if necessary call AV for assistance’.  Whether that’s a reasonable response depends on all the circumstances including the potential risk to the patient, the staff, the other patients and the hospital’s ongoing operations. 

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.