Today’s correspondent clams:

… a very rudimentary understanding of the legislative scope as pertaining to the Public Health Act (2005) versus the Mental Health Act (2016) versus the Guardianship and Administration Act (2000) versus Ambulance Service Act (1991).

To explore the interaction between those Acts they give the following ‘hypothetical scenario’:

… [In Queensland] a private registered paramedic working event medical in a remote area with an ambulance response >1h who has a patient that they would deem to not hold capacity under guardianship and appear as a risk to themselves, for example suspected drug induced psychosis or some other acute change in mental status, who is refusing treatment / investigation.

In the first instance, let’s say the patient is restrained by security officers, awaiting a QPS response, how does the guardianship legislation relate to this interaction?

In the second instance let’s say QPS have restrained the patient, and intend to place them under an EEA, and are requesting said private paramedic to administer chemical restraint while awaiting a QAS response.

I will place good faith on our said private paramedic and assume they take into consideration all of the safety and advocacy considerations involved in the discussion of physical vs chemical restraint being in the patient’s best interest. Does this second instance change the legislative considerations?

The final instance relates to the above scenarios however this time the private paramedic calls the appropriately qualified medical officer under whom they practice for a consultation, does this final instance once again change the legislative considerations?

I hold a vague understanding of the legislative consideration for authorised ambulance officers, but this discussion of private practice is well outside of that understanding.

The Ambulance Service Act 1991 (Qld)

The Ambulance Service Act isn’t relevant.  With the exception of s 43, ‘Unauthorised ambulance transport’, it is an Act about the Queensland Ambulance Service, not about ambulance services in Queensland.

Mental Health Act 2016 (Qld)

Given that Emergency Examination Orders are made under the Public Health Act 2005 (Qld), I cannot see that the Mental Health Act 2016 (Qld) is relevant (see Involuntary detention by police or ambulance officers under the Public Health Act (Qld) (March 16, 2021)).

Guardianship and Administration Act 2000 (Qld)

The starting point is the Guardianship and Administration Act 2000 (Qld) s 63 which says:

(1) Health care … of an adult may be carried out without consent if the adult’s health provider reasonably considers—

(a) the adult has impaired capacity for the health matter concerned; and

(b) either—

(i) the health care should be carried out urgently to meet imminent risk to the adult’s life or health; or

(ii) the health care should be carried out urgently to prevent significant pain or distress to the adult and it is not reasonably practicable to get consent from a person who may give it under this Act or the Powers of Attorney Act 1998 .

(2) …

(3) However, the health care mentioned in subsection (1) (b) (ii) may not be carried out without consent if the health provider knows the adult objects to the health care unless—

(a) the adult has minimal or no understanding of 1 or both of the following—

(i) what the health care involves;

(ii) why the health care is required; and

(b) the health care is likely to cause the adult—

(i) no distress; or

(ii) temporary distress that is outweighed by the benefit to the adult of the health care.

In the scenario we’re told that the patient does not have capacity so the criterion in s 63(1)(a) is met and I will assume the criterion in s 63(1)(b)(i) is also met.  We are also told that the patient is ‘is refusing treatment / investigation’ in which case treatment cannot be given unless the criteria in s 63(3) are also met.  I will assume that is also the case.

A health provider is ‘a person who provides health care … in the practice of a profession or the ordinary course of business’.  Today I think it is unarguable that a paramedic provides health care in the course of the practice of their profession.

Let us now look at the scenario:

In the first instance, let’s say the patient is restrained by security officers, awaiting a QPS response, how does the guardianship legislation relate to this interaction?

The cited legislation is irrelevant here. The Security guard is not a ‘health provider’.  The security guard’s actions are justified by the common law doctrine of necessity – where the patient is unable to give or refuse consent care that is reasonably necessary and in the patient’s best interests (see The doctrine of necessity – Explained (January 31, 2017)). This may include restraint – think if a child wandering alone, no-one would question that anyone could in effect restrain the child in their best interests.  The same where a person is clearly unwell and in danger.  Whether it is safe to restrain them, whether the guard uses only reasonable force, and whether the person was in fact competent to refuse care (in which case the guard’s actions are a false imprisonment) might all be issues to be resolved. But as a matter of principle the guard can restrain the person if the person is not competent, and the actions are reasonable and intended in the person’s best interests.

Once the paramedic is on scene, he or she should take control of the situation. They may continue to ask the security guard to assist but it must be up to the paramedic to assess what is in the patient’s best interest and be alert to any risk posed to the patient by the security guard’s use of force (see for an international example, Lessons for Australia following conviction of US paramedics? (December 31, 2023)).

In the second instance let’s say QPS have restrained the patient, and intend to place them under an EEA, and are requesting said private paramedic to administer chemical restraint while awaiting a QAS response.

Public Health Act 2005 (Qld)

An EEA – an Emergency Examination Authority – is issued under the Public Health Act 2005 (Qld) ss 157B to 157F.  An ‘ambulance officer or police officer may detain [a] person and transport the person to a treatment or care place’ (s 157B(3)) if the criteria set out in s 157B(1) are met; that is;

(a) [The] person’s behaviour, including, for example, the way in which the person is communicating, indicates the person is at immediate risk of serious harm; and

(b) the risk appears to be the result of a major disturbance in the person’s mental capacity, whether caused by illness, disability, injury, intoxication or another reason; and

(c) the person appears to require urgent examination, or treatment and care, for the disturbance.

Let us assume those criteria are met, so the police officer can detain the person. The police request, asking the ‘private paramedic to administer chemical restraint while awaiting a QAS response’ is irrelevant. The police can ask the paramedic to assess and treat the person.  The power of the paramedic to do so is found in the Guardianship and Administration Act and the common law, discussed above. It is up to the paramedic to decide what treatment is reasonably indicated by the patient’s condition and circumstances and what is in the patient’s best interests. The police cannot tell the paramedic what treatment to administer (see, again, Lessons for Australia following conviction of US paramedics? (December 31, 2023)).

Does this second instance change the legislative considerations? No, the paramedics still need to apply the Guardianship and Administration Act and the common law.

The final instance relates to the above scenarios however this time the private paramedic calls the appropriately qualified medical officer under whom they practice for a consultation, does this final instance once again change the legislative considerations?

It doesn’t change the legislative considerations as the medical practitioner is authorised to act under the same provisions. The consultation with the medical practitioner may be useful evidence to support the paramedics conclusion that the patient was not competent or that the treatment administered was reasonable in all the circumstances.  If the medical practitioner is willing to issue an oral prescription for the sedative (Medicines and Poisons (Medicines) Regulation 2021 (Qld) r 92) then the paramedic could administer that drug as they can assist anyone to receive a prescribed drug.  The medical practitioner has not seen the patient and cannot assess their circumstances so should be very cautious in providing that prescription particularly given the paramedics can issue the same drug on their own initiative (and if they can’t, why are they carrying it).  There is a difference between a consultation and agreeing that ‘yes, that sounds reasonable’ and a doctor being prepared to ‘prescribe’ the drug.  A paramedic is however a health professional so even in the circumstances where the doctor ‘authorises’ the administration the paramedic would need to still consider the patient’s circumstances and whether the criteria in the Guardianship and Administration Act apply.  If they do not, then they cannot administer the drug, even if it has been prescribed.

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.