Today’s question comes from a Victorian paramedic who asks:

As a health professional (acknowledging this may not confer any specific powers over a member of the public) in charge of the care of a person (my patient) where the person (my patient) is both

(a) temporarily not competent to provide consent due to current intoxication / drug effect, AND

(b) Is in possession of a ‘drug’ ‘on their person’.

I might reasonably conclude that the substance represents an ongoing threat to the patient (or public health risk to the community) as the patient appears to currently be very unwell related to being intoxicated by these drugs and the substance appears to be a recreational drug and was found on the person.

 Would I be permitted to:

(1) Remove the substance from the patient’s possession without explicit verbal consent of the patient?

(2) Place that substance in a secure / lockable container and surrender that substance to a person who holds a specific Drugs & Poisons License / permit, for the purposes of holding and disposing of scheduled medications under Controlled Substances (DPCS) Act?

(3) Additionally, If this person operated a drug checking service, would they be able to test this substance under the conditions above?

First thing: the question says ‘I might reasonably conclude that …’  I’m going to accept that is correct and not look at whether that conclusion is or is not reasonable in the circumstances. I will, for the sake of the argument, accept that it is.  Now to try and find some law.

Theft

The Crimes Act 1958 (Vic) s 72(1) says:

A person steals if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.

Even property that it is illegal to possess, such as drugs, can be stolen (Anic v R (1993) 68 A Crim R 313).  By taking the drugs and handing them over for disposal the intention is to deprive the patient of the drugs.  Theft does not require that the person takes the property for their own use, only that they take it and use it (eg by handing it over for destruction) in a way that is inconsistent with the rights of the person from whom they took the thing.  The issue here would not be about whether the paramedic appropriated (or took) the property with the intention of permanently depriving the owner, but whether the conduct was ‘dishonest’.

Section 73(2) says:

A person’s appropriation of property belonging to another is not to be regarded as dishonest—

(a) if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; or

(b) if he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it; or

(c) (except where the property came to him as trustee or personal representative) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.

I assume (b) and (c) do not apply in the circumstances described. The Criminal Charge Book is published by the Judicial College of Victoria and is the handbook judges use when directing juries. It says (at [7.5.67]):

Dishonesty has a special meaning when used in Division 2 of the Crimes Act 1958. It means that the accused acted without any claim of legal right …

This is different to the test in other jurisdictions including the Commonwealth (see [7.5.68]) and New South Wales.  The Crimes Act 1900 (NSW) s 4B says:

“dishonest” means dishonest according to the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people.

By those standards one might expect the community to think that a paramedic who takes, for the purposes of their destruction, prohibited drugs is not acting ‘dishonestly’ but that is not the test in Victoria.  In Victoria the paramedic has to believe they have a legal right to take the items in question: ‘The term “dishonestly” in s 72(1) has no residual meaning beyond this statutory definition’ that is the meaning of a belief in a legal entitlement to take the property (Criminal Charge Book, [7.1.70]).

In the circumstances described, therefore, the paramedic would, prima facie, be liable for the theft of the drugs unless he or she can show that they believed they had a legal right to take them as they did.   It does not matter whether they are right, that is whether they had a legal right, the question is did they believe they had a legal right (Criminal Charge Book [7.1.74]).

One then has to look to see if one can find a relevant law.  As my correspondent has noted, being a health professional does not give any special powers or rights in the circumstances.

Citizen’s arrest

There is a power to perform a citizen’s arrest (Crimes Act 1958 (Vic) s 458 and the power to arrest would imply a power to search and seize items (Clarke v Bailey (1933) 33 SR(NSW) 303).  However, on the facts given it does not appear the paramedic wants to arrest their patient and in any event and without explaining them in detail, the further grounds to justify an arrest set out in s 458 (eg to prevent further crimes, to ensure the accused’s attendance at court etc) are not made out.  If the person is unwell and not competent, they can be taken to hospital for medical care and there is plenty of time for police to arrest them if they want to.  A citizen’s arrest and with it, any implied power to search and seize the items is not raised by these facts.  Even if it was it would require the paramedic to hand the suspected drugs to police, not to a person authorised to destroy them.

Drugs law

The Drugs, Poisons and Controlled Substances Act 1981 (Vic) provides for the powers of authorised officers, which includes all police officers (s 4, definition of ‘authorised officer’).   Where an authorised officer seizes any ‘poison or controlled substance’ he or she must give notice to the person ‘apparently in charge’ of the goods seized.  Ultimately, if the seizure is confirmed, the items ‘become the property of the Crown and may be destroyed or disposed of as the Minister directs’ (s 43).

Further police when performing any function under the Act may authorise the destruction of any ‘drug of dependence, psychoactive substance, poison, controlled substance, instrument, device or substance’ that they have located provided that ‘an analyst or botanist within the meaning of section 120 certifies in writing to the police officer that destruction or disposal of the thing is required in the interests of health or safety’ and ‘where practicable, any samples of it as are required’ have been taken (s 91).

It is important to bear in mind some fundamental principles of the criminal law including the presumption of innocence. The paramedic may find what he or she believes to be prohibited drugs but it does not mean that they are, or that the person does not themselves have some legal authority to possess them.   The Crimes Act and the Drugs, Poisons and Controlled Substances Act have processes in place for items to be seized, and their legality tested, before they are destroyed.

Discussion

A paramedic treating a patient is entitled to collect their property and take that into safekeeping where the patient is unable to do so themselves.  One does not need specific legal authority to do that as the paramedic is in no way taking the property contrary to the patient’s rights. 

If the paramedic finds what he or she believes ‘to be a recreational drug’ it does not follow that it is, or that it is a prohibited or restricted drug, or that the person’s possession of that drug is unlawful. Even if one might believe all those things as a matter of common sense, the law requires proof beyond reasonable doubt. 

If police were involved, they would have to seize the drugs, maintain their integrity as evidence, have the drugs tested, put the matter before the court and if the court is satisfied the court could order their destruction or that they are forfeit to the Minister for destruction. The law does not allow for the sort of ‘self-help’ remedy anticipated in the question.

It follows that the only person the paramedic could and should hand the suspected drugs to is a police officer, having regard to the implications that may have for the patient and the standing of the paramedic profession (see Paramedics and Patient Confidentiality number 2 (July 23, 2015)).

Conclusion

The question asked me to assume a paramedic found an item that he or she reasonably suspected was a ‘recreational drug’ and the cause of their current patient’s illness. Can they:

1. Remove the substance from the patient’s possession without explicit verbal consent of the patient?  Yes, but only for the purpose of securing their property, in the same way you could take possession of their wallet or bag.
2. Place that substance in a secure / lockable container and surrender that substance to a person who holds a specific Drugs & Poisons License / permit, for the purposes of holding and disposing of scheduled medications under Controlled Substances (DPCS) Act? No, if the goods are to be forfeit and destroyed procedures under the Crimes Act and the Drugs, Poisons and Controlled Substances Act 1981 (Vic) would need to be followed. Hand the items to police.
3. Additionally, If this person operated a drug checking service, would they be able to test this substance under the conditions above?  I haven’t addressed this as it would in part depend on the terms that such a service operated. I imagine they’d want the owner’s consent and that’s not you. It might be justified if you needed to know what was in the drugs to treat the patient but even then you know that the drugs on their person are not the drugs they took.  You might assume they took drugs from the same source but you cannot know that. 

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.