Today’s correspondent wants to revisit the issue of patient restraint in Western Australia. They start by saying ‘You wrote a post some time ago in reference to court case in WA concerning the non-lawful restraint of a patient by security officers’. Indeed I did, that post was No power to detain a patient just because it’s good for them (January 22, 2023).  See also:

The question continues:

I am doing some research (I am not a lawyer) regarding the doctrine of necessity in relation to hospital restraints.

The doctrine of necessity or relevant sections under the criminal code are a defence for when a law has been broken. A security officer can argue they had reasonable belief that there was an imminent risk of injury or harm to equipment if they did not act. This defence must be tested on a case-by-case basis. These provisions therefore are not an authority to use force but are a defence against conviction for the unlawful use of force. It must be assumed that any use of force is illegal unless demonstrated it was necessary (or enacted under the mental health act for example)

If the assumption above is correct, then any direction not authorized by legislation given to a security officer to restrain a patient is in fact a non-lawful direction. Whether the security officer acts on what is really a request (not a lawful direction) it is at the discretion of the security officer. If the Security Officer does not reasonably believe there is an imminent threat, then they cannot be disciplined for refusing what is a non-lawful direction. They can only be performance managed if their decision making is found wanting.

Further even if the Doctor believed there was a threat, and the Security Officer acted based on the Doctors belief, it would still be the security officer who may face criminal charges. In which case it will be the Security Officer who must prove they had a reasonable belief of imminent harm occurring, the direction being given would not be a sufficient defence in itself. 

In fact it could be argued that the Security Officer should have a better understanding of the application of the law and therefore should have refused the Doctors request unless the Doctor was able to substantiate that there did exist an imminent threat.

Whilst there’s no specific question there, I’m asked if I can direct my correspondent ‘to case law etc. that may be relevant …’

I think there are three different scenarios that are being merged here, and in the discussion generally.  

A doctor or security officer may want to detain a person who has presented at hospital for one of three (at least) reasons.  The law with respect to them all is different.

  1. The first, and the subject of the earlier posts listed above, is where the doctor thinks the patient needs to be assessed or treated but the patient is refusing consent.  The discussion there has been whether a doctor’s duty to ‘act in the patients’ best interests’ can allow the doctor to detain the person against their wishes. The answer is no, it cannot.
  2. The second scenario is where the patient is not competent and detention is a necessary part of their treatment eg sedating a patient with head injuries to, and as part of their treatment for a head injury.  Or giving a general anaesthetic to a person to perform lifesaving surgery.  If the person is not competent to give consent, treatment that is necessary and in the patient’s best interests can be delivered even when that looks like a restraint.
  3. The third scenario, which I think is really being raised here is to restrain (rather than detain) someone in self-defence.

Self-defence

Self-defence is indeed part of the Criminal Code of WA.  Section 248(2) of the Code says, ‘A harmful act done by a person is lawful if the act is done in self‑defence under subsection (4)’.  Subsection (4) says:

A person’s harmful act is done in self‑defence if —

(a)            the person believes the act is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent; and

(b)           the person’s harmful act is a reasonable response by the person in the circumstances as the person believes them to be; and

(c)            there are reasonable grounds for those beliefs.

Section 251 says:

It is lawful for any person who is in peaceable possession of any movable property, and for any person acting by his authority, to use such force as is reasonably necessary in order to resist the taking of such property by a trespasser, or in order to retake it from a trespasser, provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm to the trespasser.

Finally, s 254(2) says:

It is lawful for a person (the occupant) who is in peaceable possession of any place, or who is entitled to the control or management of any place, to use such force as is reasonably necessary —

(a)            to prevent a person from wrongfully entering the place; or

(b)           to remove a person who wrongfully remains on or in the place; or

(c)            to remove a person behaving in a disorderly manner on or in the place;

provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm to the person.

If the issue is a risk of injury to someone other than the patient (eg a member of the hospital staff or another patient) or a risk to the property of the hospital, then yes a security guard can use reasonable force to abate that risk.  That would not justify detaining a person and imposing treatment against their will.  It may justify detaining the person until the arrival of police (Criminal Investigation Act 2006 (WA) s 25 ‘Citizen’s Arrest’) or removing the person from the hospital.   Interestingly s 251 refers to the use of force to retain possession of property.  It does not say force can be used to protect property from damage though at least on law firm claims that it does extend to the use of force ‘to protect personal property from theft or damage (Rothschild Group, Is Self-Defence Legal in WA? Understanding Your Rights, December 9, 2024).  They do not cite any cases to support the claim that s 251 extends to the protection against damage but it does seem reasonable that it should and that the damage or destruction of property is to deny the true owner’s rights and is a form of ‘taking’.

If the motivation is to protect a third party or the hospital’s property then the doctor’s opinion is simply part of the information upon which the security guard could form the belief that it is ‘necessary to defend the person or another person’. If the doctor reports being in fear of their safety that would be relevant, but the doctor’s opinion that it is necessary to use force in self-defence, defence of another or in defence of property is not sufficient.  As my correspondent correctly notes it is ‘the Security Officer who must prove they had a reasonable belief of imminent harm occurring…’. 

The real complexity arises where the person is posing a threat to others but cannot be removed, eg the patient who has a head injury, drug overdose or an acute mental illness and it is their injuries that are causing them to be violent.  They need to be restrained in order to protect others, but they also need to be treated for their injuries.  I think this is the case identified at (2), above.  If they are not competent to consent to or refuse treatment they can be restrained and if necessary sedated as that is both a reasonable use of force to protect others and it is part of the treatment of their condition.  

If they remain competent then a statutory provision is required to justify treatment contrary to the patient’s known wishes.  In WA that does not including the Mental Health Act 2014 (WA) as one of the criteria for an involuntary treatment order is (s 25(1)(c)):

… that the person does not demonstrate the capacity required by section 18 to make a treatment decision about the provision of the treatment to himself or herself;

If they do demonstrate capacity, an involuntary treatment order cannot be made. 

For further details see the flowchart in the article 

Kelly, A.-M., Eburn, M., Cockburn, T. and Senthi, A. (2023), Review article: Detaining patients against their will: Can duty of care be used to justify detention and restraint in emergency departments? Emergency Medicine Australasia. https://doi.org/10.1111/1742-6723.14299

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.