Today’s correspondent says:

I read the article – Placed under public guardianship, Margaret wants to take back control of her life (ABC Online, 4 January 2025) – recently, and thought the inclusion of the image of a Paramedic raised an interesting issue with potentially broader implications for members of the profession.

My questions are:

1 – On what relevant basis can a Paramedic be directed or otherwise required to compel a patient to be transported to a particular destination in circumstances such as those described?

2 – Is it within the powers of NCAT to issue orders compelling a Paramedic to transport a patient, regardless of the patient’s wishes?

3 – It is likely that a Paramedic in these circumstances has no legal basis to compel the patient to come with them?

4 – In circumstances where the patient is able to clearly, and consistently communicated their wishes, is it likely that a paramedic who disregards those clearly communicated wishes offends key principles of contemporary paramedic practice (Including S1.1 F of the current Code of Conduct) in forcing the patient to be transported against their wishes?

5 – Do you think that the use by Statutory government agencies of uniformed Paramedics to compel patients to be taken from their homes is compatible with our role as Registered Health Professionals?

The answers are all in the Guardianship Act 1987 (NSW) (‘the Act’).  We’re told, in the article, that Margaret has been subject to a guardianship order and is under the care of the Public Guardian. The Act says that the NSW Civil and Administrative Tribunal (NCAT) can make a guardianship order if it ‘is satisfied that the person is a person in need of a guardian’ (s 14(1)).   A person is in need of a guardian if ‘because of a disability, [they are] totally or partially incapable of managing his or her person’ (s 3 definition of ‘person in need of a guardian’).  Section 21(2A) says:

Subject to any conditions specified in the order, the guardian of a person the subject of a guardianship order …  has the power, to the exclusion of any other person, to make the decisions, take the actions and give the consents … that could be made, taken or given by the person under guardianship if he or she had the requisite legal capacity.

Section 21A says:

… a guardianship order may specify that–

(a) the person appointed as guardian, or

(b) another specified person or a person of a specified class of persons, or

(c) a person authorised by the guardian (the “authorised person” ),

is empowered to take such measures or actions as are specified in the order so as to ensure that the person under guardianship complies with any decision of the guardian in the exercise of the guardian’s functions. 

LXN [2024] NSWCATGD 13 (6 August 2024) is a case where a guardianship order was made. In that case the Tribunal appointed the public guardian to determine, amongst other things, where LXN would live. The order says:

The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:

i) take LXN to a place approved by the guardian.

ii) keep her at that place.

iii) return her to that place should she leave it.

Interestingly although there is a power to authorise NSW Ambulance to enforce the order there is no corresponding obligation on NSW Ambulance to actually do so.

Let me know turn to the questions:                       

1 – On what relevant basis can a Paramedic be directed or otherwise required to compel a patient to be transported to a particular destination in circumstances such as those described?

A paramedic or more accurately, NSW Ambulance can be authorised rather than compelled to enforce a guardianship order (Guardianship Act 1987 (NSW) 21A).

2 – Is it within the powers of NCAT to issue orders compelling a Paramedic to transport a patient, regardless of the patient’s wishes?

NCAT can not issue orders compelling a paramedic to transport the patient, but it can issue orders allowing NSW Ambulance to transport the patient.  In making the guardianship order, NCAT has determined the patient is not competent to make their own decision and their guardian can make the decision. The guardian’s consent has the same effect as the patient’s consent would have if the patient were competent (s 21C).  Paramedics may transport a mentally ill person contrary to their wishes but in accordance with decisions made by others (see Mental Health Act 2007 (NSW) s 81), or a child contrary to their wishes but with the consent of their parent. So too a paramedic can transport a person subject to a guardianship order contrary to their wishes but with the consent of the guardian as it has been conclusively determined that the patient the subject of a guardianship order is not competent to make their own decisions.

3 – It is likely that a Paramedic in these circumstances has no legal basis to compel the patient to come with them?

A paramedic acting with the guardian’s consent and authority has a complete legal basis to compel the patient to come with them, assuming the order is in the same or similar terms to the order in LXN quoted above.  The Guardianship Act is very clear, in ss 21A ‘Power to enforce guardianship orders’ and 21C ‘Acts of guardian take effect as acts of person under guardianship’, that the guardians consent is sufficient authority and that a paramedic acting under the guardians direction ‘is not liable to any action, liability, claim or demand arising out of the taking of that measure or action’ (s 21A(2)).

4 – In circumstances where the patient is able to clearly, and consistently communicated their wishes, is it likely that a paramedic who disregards those clearly communicated wishes offends key principles of contemporary paramedic practice (Including S1.1 F of the current Code of Conduct) in forcing the patient to be transported against their wishes?

No. Paragraph 1.1(f) of the Code of Conduct applicable to paramedics says that good practice requires a practitioner to ‘recognise and respect the rights of patients to make their own decisions about their current and future healthcare’ but that can only be true to the extent that the patient is competent to make those decisions.  The decision of the Tribunal is a conclusive determination that they are not in fact competent to make those decisions. 

Paramedics no doubt have much experience dealing with the mentally ill, the drug and alcohol effected, those with brain injuries, those with dementia and the like who can express their wishes but who are not competent.  There is a whole guideline on assessing competence (NSW Ambulance Protocol A3 Informed Consent, Capacity and Competency’).  Where a guardianship order has been made that protocol becomes irrelevant as the paramedics do not have to determine whether the patient is competent, the NCAT has already determined that they are not (no matter what the paramedic thinks). The appointed guardian can give effective consent to any treatment and can authorise the Ambulance Service and the Police Service to enforce the order and, as in this case, return the person to the place where the guardian has determined they are to live.

5 – Do you think that the use by Statutory government agencies of uniformed Paramedics to compel patients to be taken from their homes is compatible with our role as Registered Health Professionals?

Yes. This is a health issue as much as anything.  If you were aware of a not-competent patient leaving a hospital, or wandering the streets, there is nothing inconsistent with stopping to help them and keep them from danger.   If a person like Margaret needs to be moved it would be better for her to be in an ambulance in the care of paramedics than in the back of a police wagon.

The article that raises these questions

The real issue is that the ABC wanted to present that story as if Margaret was competent, but her decisions were being overridden. The story says Margaret, who ‘has been diagnosed with dementia, can’t choose where she lives, who she can live with and how her money is spent.’  What it doesn’t say is Margaret, who has been diagnosed with dementia, and found not competent to make her own decisions, can’t choose where she lives, who she can live with and how her money is spent.’    

The fact that the decisions do not make sense to her does not mean they are unreasonable decisions, it may mean she is not able to understand the issues in order to make an informed decision – hence is not competent.

The article also says:

Multiple inquiries, including the Disability Royal Commission, have recommended state governments change their legislation so a person’s preference is the main thing taken into consideration when the guardian is making a decision — not what others believe is in their best interest.

Their wishes should only be ignored if they are at risk of “serious harm”.

In NSW the guardian must (Guardianship Act 1987 (NSW) s 4)

… observe the following principles–

(a) the welfare and interests of such persons should be given paramount consideration, …

(d) the views of such persons in relation to the exercise of those functions should be taken into consideration,

In Victoria (Guardianship and Administration Act 2019 (Vic) s 9):

A person making a decision for a represented person must have regard to the following principles—

(a) the person should give all practicable and appropriate effect to the represented person’s will and preferences, if known;…

(e) the represented person’s will and preferences should only be overridden if it is necessary to do so to prevent serious harm to the represented person.

In Margaret’s case, at least as it’s being reported, the guardian is the Public Guardian and they are making the decision based on what they believe is in Margaret’s best interests, not what others are saying are her best interests.  And clearly, they think she is at risk of harm – ‘the NSW Public Guardian don’t want her to live in her flat with her partner Henry, because of allegations of domestic violence’ and that the level of care at Jack’s is not sufficient.  So, this is not the Public Guardian just listening to others in the family ie the ‘two daughters from a previous relationship’ and even if the legislation were changed as suggested there is not enough information to know if the outcome would be any different.

The article quotes Mr Gear from the Older Persons Advocacy Network who says ‘”We need to not have this assumption that older people can’t make those decisions that they’ve made their whole lives.” That’s true but as the article also says the NCAT made the decision based on evidence, not an assumption.

The article is useful enough to highlight the issues and it is certainly a good story for the media as it came with video shot by the family to highlight the emotions and family conflict and family and lawyers for Margaret’s partner willing to speak to the media no doubt to bring pressure, as it is doing, on the Public Guardian. The article may carry an important message about respecting the rights of the elderly and the dignity of risk but it doesn’t discuss what ‘competence’ means or the criteria for making a guardianship order and that NCAT found that those criteria exist.  The fact that Margaret

… communicated clearly and spoke about her early life with relish.

She recalled all the people in her life, and remembered their names.

… [and] that she was very independent.

“She showers herself, feeds herself, dresses herself and takes care of personal hygiene herself,” he said.

Does not prove competence or that she is not a ‘person in need of a guardian’.   It doesn’t mean she is not at risk of harm if her wishes are followed.

Finally if differnt decisions were being made eg that she stay with Henry or Jack it would be just as easy to write an article, quoting the daughters and some doctors about how the Public Guardian was not makng a decision in Margaret’s best interests because they were allowing her partner who has faced allegations of domestic violence to coerce and they shouldn’t listen to her because at least two doctors have said she ‘can’t make decisions about her care needs’. And of course Henry has a clear financial interest in not allowing the Public Guardian to sell the house. I’m not suggesting any of those things are true but making the point if the ‘boot were on the other foot’ and someone wanted to, they could frame an equally distressing story of someone’s rights being overriden by a misplaced focus.

What I would suggest therefore is not to rely on this article as evidence of that a person’s wishes are being unreasonably overridden or that paramedics have some capacity to, or should, override the determination of NCAT.  The correct question is to ask whether it is appropriate for paramedics as health professionals to be involved in providing care to people who are not competent to make their own decisions and who are believed to be at risk where they are. And paramedics do that all the time, when they treat the intoxicated, the mentally ill, children, those with brain injuries, developmental disabilities etc. Many times, those people will indicate that they do not want to be treated and transported, they do not want to go to hospital but if a paramedic determines that they are not competent then they can treat them, not only without consent but in the face of their non-competent objections. Paramedics are encouraged to seek consent from a ‘person responsible’ and top of that list is the person’s appointed guardian.   

Where NCAT has made a guardianship order, and depending on the terms of the order, it has been conclusively determined that the person is ‘totally or partially incapable of managing his or her person’.  People can challenge those orders (Guardianship Act 1987 (NSW) ss 24 to 25C) but it is not for the paramedics, or police, to go behind those orders. Whilst the orders are in place the it is the guardian’s consent to treatment that is relevant. In that case and the paramedic has ample legal authority to give effect to the guardian’s directions and ethically to assist the guardian to deliver care that is in the patient’s best interests as determined by the very person appointed to make that decision.

Conclusion

No doubt cases like this are complex and difficult.  This was a particularly useful example for the media to use to explore the issues but the article has a deliberate ‘spin’ to make the point.  If we look beyond the emotion of this particular story then we can say that paramedics (or more accurately, NSW ambulance) cannot be compelled to transport people in accordance with the guardians directions but they can be authorised to do so and that in most cases it would be consistent with a paramedic’s obligations to provide the care that the guardian has determined in the patient’s best interests even if that means taking them somewhere they do not want to go.  The Guardianship Act 1987 (NSW) provides the necessary legal basis that the paramedics require to act in these circumstances.  

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.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.