Today’s correspondent is a paramedic from Western Australia who asks:

  1. … an ambulance is called to a patient … who is well intoxicated, looking ill, periodically vomiting. Though obviously intoxicated (by smell on breath and cadence of speech), the patient is compliant and able to remember their name, place and year and hold a conversation …
  2. It would be the duty of the paramedic to treat this patient equitably, assessing them as required … I understand here, if following assessment and discussion, the patient refused further treatment by co-operating with and meeting all VIRCA criteria … we would then be free to leave and also legally able to do so.
  3. My confusion lies in the following scenario:  Instead of finishing the assessment, the patient becomes verbally abusive, agitated, refusing further treatment and saying they want leave, before an assessment and thorough informed conversation is complete. This is where it gets hairy for me. This patient is unable to fit VIRCA criteria for valid refusal, they have not been properly screened for capacity relevant to a VIRCA i.e. weigh up harms/benefits of treatments and communicate that. They have also not been informed of the dangers of not receiving treatment and alternatives have not been discussed. Therefore, I am assuming the refusal is not legally binding. If the patient only disregards, shouts out or flat out ignores the paramedic when discussing that they should go to hospital etc, is this grounds alone to suggest that they in fact do not have capacity to make their own healthcare decisions as they are not communicating their comprehension of harms/benefits? or simply that they do not want to cooperate?
  4. Whilst I do want to respect this patient’s autonomy, in regard to negligence, foreseeable harm is likely and relative to this patient’s presentation and wouldn’t leaving them like this be viewed as such? Are paramedics legally able to leave patients without a VIRCA in any situation where the patient no longer willingly presents and would not be reasonable to detain? Would documentation that states a patient refused treatment, but VIRCA criteria not met, be sufficient in court?
  5. Where the patient presents in a public space, and they are considered a harm to themselves or others (although not defined mentally ill), is it reasonable to have them detained by police following failed encouragement to cooperate with paramedics and police, for at least an assessment and ability to ascertain a VIRCA under ‘LEPRA’ (2002) SECT 206. This may seem an extraneous use of force, where someone may wilfully be out drinking to become well intoxicated, however, without doing so, am I not risking future litigation for negligence? Conversely, where the patient is not intoxicated, I am assuming from what I have read so far, there would be no action available to paramedics for further assessment/treatment where the patient is uncooperative and not meeting emergency/mental health criteria.
  6. Expanding on the paragraph above, to help visualise and apply how this should appear in the field, are we able to work with police force to enact LEPRA codes, detaining them with reasonable force (if still uncooperative) to a ‘safe place’ i.e. back of ambulance and following further assessment. Then if valid refusal is achieved, and no doctrine of necessity applicable, release them to friends/family that meet the definitions of ‘responsible persons’ and let them continue on with their night as they requested? As a common presentation to prehospital scenarios, the ethical/legal nuances of this situation are very interesting and confusing to me. There are many times where pressing on for assessment has made the scenario considerably more hostile, therefore, being able to justify the correct approach will help provide me with confidence that I am following the necessary pathways to meet legal obligations whilst maintaining patient autonomy.

This is a long scenario so I have numbered the paragraphs, above, so I can refer to them in my answer.

With respect to the situation described in paragraphs [1] and [2] not only is the paramedic ‘free to leave and also legally able to do so’ they are legal required, if not to leave, but to leave the patient alone.  A competent patient can refuse any treatment and for any reason or for no reason. They are not obliged to consent, and they are not obliged to cooperate. Assessing whether the patient meets the ambulance services criteria for a refusal is an ambulance service internal issue, but it is not something that the patient is required to do.

In many posts I have quoted Collins v Wilcock [1984] 3 All ER 374 where Goff LJ gave the statement ‘The fundamental principle, plain and incontestable, is that every person’s body is inviolate. It has long been established that any touching of another person, however slight, may amount to a battery.’  But in the context of this question it is worth looking at the facts a bit more.   His Honour said (at p. 375-376):

The magistrate found the following facts. (a) On 22 July 1982 the respondent and Police Sgt Benjamen were on duty in a police vehicle and saw two women walking along the street; one of the two was a known prostitute, the other was the appellant. (b) The officers observed the two women, both of whom appeared to them to be soliciting men in the street. (c) The officers, without alighting from their vehicle, asked the two women to get into the police car so that they could have a word with them. One woman got into the car, the appellant refused to do so. (d) The officers repeated their request to the appellant, who again refused and walked away, followed by the police car which then pulled up alongside her. She again walked away. (e) The respondent, got out of the car and followed the appellant on foot, asking her why she didn’t want to talk to the police, and also for her name and address. The appellant again started to walk away. The respondent told her that she had not finished talking to her and the appellant replied, ‘Fuck off’, and started to walk away yet again. (f) The respondent took hold of the appellant by the left arm to restrain her and the appellant shouted, ‘Just fuck off, Copper’ and scratched the respondent’s right forearm with her fingernails. (g) The appellant was then arrested for assaulting a police officer in the execution of her duty.

The appellant, Ms Collins was acquitted on the basis that the respondent, Constable Wilcock had no legal authority to detain or even touch her so that when the police officer ‘took hold of the appellant by the left arm’ that was not only not acting in the execution of her duty, it was a battery.

The point is one might have sympathy for the police and want them to be able to stop people to ask them questions but that is not the law. And so too it is not the law that paramedics or others can stop or detain people or compel them to assist the paramedic to do that which their employer wants them to do.    So in the situation described in paragraphs [1] and [2] where you in fact have a compliant and cooperative, albeit intoxicated patient, then yes the paramedic not only can, but must leave them to their own devices.

Where there is a duty of care however it is not a simple ‘one size fits all’ – it is not ‘accept my treatment or I do nothing’.    The law of assault, described above, is about touching people.  It does not stop paramedics doing things to try and make sure a person is safe short of touching them and that may well be giving advice, giving advice to their friends or in some cases calling police.    Again, to draw an analogy I have been asked previously about calling ambulances when people don’t want them called, usually because of a fear of the cost.  A first aider who feels a patient needs an ambulance does not need the patient’s consent to call an ambulance.  The patient can refuse assistance when the ambulance gets there but they may also be persuaded that they do need help if paramedics turn up and say ‘we really think you need to go to hospital’  (see Paying for ambulance services in the ACT (July 16, 2018).  We shall return to the issue of police, below.

To return to the situation in [1] and [2] above the paramedics cannot compel the person to accept treatment but they can do things to protect the patient that might be reasonable such as giving advice or offering to make a phone call to someone.

The situation gets more complex in paragraph [3]. I understand VICRA refers to a decision making tool to ensure that the patient’s decision is ‘voluntary, informed, relevant, made with capacity and the patient is left with adequate advice’ (see Refusing transport to a particular hospital (June 21, 2019); see also St John Ambulance (WA) Clinical Resources – Patient Not Transported (v 1, March 2022)).   The St John document says:

Except in cases of emergency or necessity, all medical treatment is preceded by the patient’s choice to undergo it if they are of adult age. However, to be binding, a refusal of treatment must be informed, cover the situation that has arisen and the person must be deemed competent. If the patient has provided a valid refusal, the paramedic must respect the patient’s wishes. When attending to a patient who expressly refuses ambulance treatment or transport, the paramedic is required to conduct an assessment to determine if the patient is competent and has the capacity to make the decision. This assessment is referred to as a VIRCA assessment.

That is not quite correct.  The case law says that a patient can refuse treatment at any time and for any reason. It follows that the decision does not have to be informed.  They can refuse treatment without talking to the health officials at all. What the cases (such as In Re T [1992] EWCA Civ 18 say is that a prior refusal, if it is still to be binding, must meet those criteria.    A person can refuse to have anything to do with paramedics and tell them, like Ms Collins told the police, above, to ‘fuck off’.  Their refusal is binding at that point; but if they then collapse the question becomes ‘would they still want us to f$5! Off?’  And to answer that question one has to consider was their decision informed etc.  The person who says ‘I’m right I don’t need your help’ but who then collapses clearly did not, at that time, understand that they were not ‘right’.

Second the St John document says ‘the paramedic is required to conduct an assessment to determine if the patient is competent and has the capacity to make the decision’. That is a requirement of St John, not the law.  St John wants its staff to do that to protect St John and the paramedics and the patient, but there is no legal obligation on the patient to take part in that process and therefore no legal power by a paramedic to detain or restrain a person to let them do that assessment, any more than Constable Wilcock had any power to detain Ms Collins to answer some questions.

In the situation in paragraph [3] the patient is under no obligation to assist the paramedic to do what St John requires them to do and their behaviour may or may not reflect on their capacity. That is a matter for clinical judgement not a matter where the law has a simple a priori (ie before the event) answer.  Putting aside the paramedic safety issue (that is if the ‘the patient becomes verbally abusive [and] agitated’ you may want to let them go for your own safety) they are allowed to go.  And they are presumed to be competent unless the contrary is shown.  It is not a neutral presumption, if you cannot establish that they are not competent, then they are.  The refusal here is legaly binding and any attempt to restrain the patient would be a battery and/or false imprisonment.

As a paramedic all you can do is what you can legally do. In Stuart v Kirkland-Veenstra [2009] HCA 15 police were not liable for not detaining Mr Veenstra even when he later took his own life as they had no power to detain him.  A duty to do something presupposes a power or authority to do that thing – As French CJ said ‘The case for a duty of care depended upon the existence of the power to apprehend’ ([5]) and ‘The duty of care … could not have existed because the critical statutory power … did not exist’ ([63]). Gummow, Hayne and Heydon JJ said ‘There can be no duty to act in a particular way unless there is authority to do so’ ([112]).  Where a person is refusing to cooperate with paramedics and there is no lawful authority to detain them there can be no duty to detain or treat them. There cannot be a duty to act unlawfully, as Constable Wilcock (above) learned.

Patients do not need a paramedic’s permission or imprimatur to go about their business regardless of how foolish their decision is. They are entitled to refuse treatment for any reason whatsoever or for no reason at all.  The failure to assist paramedics to perform a VICRA assessment is not grounds to stop them from doing what they want to do.

As for calling police ([5]) that may be reasonable if the paramedic fears for the patient’s safety. The paramedic may not have the power to detain the person or compel treatment but the presence of police may bring some persuasion to bear, and police may have relevant powers.  In the question my correspondent refers to LEPRA. That is usually understood to mean the Law Enforcement Powers and Responsibilities Act 2002 (NSW).  Section 206 of that Act does give police the power to detain intoxicated persons in certain circumstances, but of course that Act has no application in Western Australia.  In Western Australia the Protective Custody Act 2000 (WA) allows authorised officers to apprehend an intoxicated person who is in a public place or trespassing on private property and who

… needs to be apprehended —

(i) to protect the health or safety of the person or any other person; or

(ii) to prevent the person causing serious damage to property,

A paramedic who is concerned about the person’s safety would be well advised to ring police in the hope they will exercise their powers under this Act in the patient’s best interests. What is clear is that the power here is given to police, security officers under the Public Transport Authority Act 2003 (WA) and people appointed as community officers by the Police Commissioner (s 3, definition of ‘authorised officer’).  The legislature has determined who can detain intoxicated persons for their own good or for the protection of others, and it is not paramedics.

There is authority to use force in self-defence which includes the defence of others (Criminal Code (WA) s 248).  If a person is threatening violence to others or to the paramedics, then they can be detained pending the arrival of police, but I don’t think that is the scenario my correspondent has in mind.  

The circumstances described in [6] are not lawful.  Paramedics cannot detain a person pending the arrival of police to allow police to determine whether to exercise powers under the Protective Custody Act or to allow paramedics to complete a ViCRA assessment. 

The situation being described is similar to that faced by paramedics in Neal v Ambulance Service NSW [2008] NSWCA 346 (discussed in the second post on this blog  Ambulance Service v Neal (January 29, 2009)).   Basten JA said (at [2]):

On the night of 27 July 2001 Mr Neal (the plaintiff) suffered a serious blow to the head whilst walking alone on the streets of Hamilton, near Newcastle. He was discovered by police, who called an ambulance. He rejected assistance from the ambulance officers and, being clearly inebriated, was taken into custody by the police under the Intoxicated Persons Act 1979 (NSW). He declined to tell them where he was living and to identify any person who might be able to look after him. He was taken to Newcastle Police Station. The following morning his condition was observed to deteriorate and, being unable to rouse him easily, the police had him taken to hospital by ambulance.

Mr Neal had suffered a fractured skull and ended up with long term disabilities. In his action against the Ambulance Service, it was never doubted that the paramedics, in face of Mr Neal’s refusal, could not examine him, treat him or transport him.  His Honour said (at [16]):

The ambulance officers gave evidence that, in the circumstances, they could not examine or treat the plaintiff or take him to hospital, without his consent. They clearly did not have his consent. Although there was a case run at trial that greater efforts should have been taken to obtain his consent and carry out a more complete investigation, her Honour rejected that complaint and it was not reagitated on appeal. Indeed, the thrust of the plaintiff’s case was not that the ambulance officers would have been able to make any definitive assessment of his condition, but rather that, as they should have appreciated, he needed to be taken to hospital for an adequate medical assessment of his condition. The plaintiff contended that the ambulance officers should have been alert to the need for a medical assessment at hospital, something the police officers would not have appreciated. If properly advised, however, the police should have taken him to hospital themselves.

The claim was that the ambulance officers should have advised the police that, given their inability to examine him and their concerns about his wellbeing and whether his behaviour was due to intoxication or a head injury, police should take him to hospital.  The plaintiff argued that had police taken him to hospital he would have been examined by doctors, his fractured skull diagnosed and the long term injuries avoided. The Court rejected this argument.  His Honour said (at [32]):

The plaintiff did not go to hospital in the ambulance at 2.30am because he refused assistance. Whether or not the police had power to detain him for the purpose of taking him to a hospital, it is beyond doubt that they had no power to require him to remain in a hospital. If he had maintained the view expressed to the ambulance officers, it is probable that he would have left the hospital…

His honour continued (at [49]):

The objective circumstances therefore provide no assistance to the plaintiff. Whether his resistance to medical treatment was fuelled by alcohol or drugs, by the injury to his head or by other considerations is unknown. The only available inference is that he would not willingly have gone to hospital and submitted to medical assessment, whether taken by the police (which was itself improbable) or in an ambulance. It follows that he failed to establish, affirmatively, that he would have accepted medical assessment and treatment. Any breach of duty on the part of the ambulance officers was therefore not shown to have caused the delay in obtaining treatment and hence liability was not established.

Police were also not liable. Even if they could have taken him to hospital they could not compel him to accept treatment and his behaviour on the night refuted any suggestion that he now made, with the benefit of hindsight, that if he’d been taken to hospital he would have allowed doctors to assess and treat him.

This is the very circumstance my correspondent describes in [3]-[5] above. The court confirmed that there was no power to treat in the absence of consent, and no liability for not doing what there was no power to do; and no liability unless the plaintiff could prove that whatever the paramedics or police did was the cause of his damage. The cause of his losses was the head injury inflicted by someone and his own decisions to refuse treatment.

None of the above is to deny the real dilemma that paramedics and others face.  As we have noted before a competent person can refuse treatment, but a non-competent person cannot and where a person is not competent treatment that is reasonably necessary and in their best interests can be delivered.  That is the crux of the issue here, deciding whether the person is competent or not.  In Re T, Staughton LJ said (at 669):

The notion that consent or refusal of consent may not be a true consent or refusal presents a serious problem for doctors. … The surgeon will be liable in damages if he operates when there is a valid refusal of consent, and liable in damages if he fails to operate in accordance with the principle of necessity when there was no valid decision by the patient.

For related posts see:

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.