Today’s question follows on from an earlier post: No power to detain a patient just because it’s good for them (January 22, 2023).  For related posts see also:

My correspondent says

In July 2024, in response to this case [ie the case reported in the January 2023 post, above], the WA Department of Health released the “Use of restrictive practices in non-authorised healthcare settings policy“. I am writing to you because I am confused about the legal authority of this policy. I assume it does not confer the power to restrain someone simply because it exists. This would have to come from some sort of existing legislation? I am also confused because it states criteria that do not seem to exist elsewhere, for example that capacity can be “unable to be assessed” whereas everything else I have read states someone is presumed to have capacity until proven otherwise. It also uses the term “immediate risk” rather than the common law term “imminent peril”. To me, this seems to amount to a lower threshold for restraint than what existed under the law before this policy was released.

I was wondering about your thoughts on the policy given it is meant to provide clarity to healthcare workers on when restraint is legal in a non-authorised setting. 

It’s true a policy document cannot take the place of the law. It is at best the Department’s interpretation of the law intended to guide its employees. I don’t see any major issue with the policy.  It says at [3.9.2] 

Staff members have no lawful right to prevent a voluntary patient from leaving a hospital or healthcare facility. There must be a legal power to detain a person.

That is consistent with all of the information in my earlier posts and the decision of Black J in the case that started this discussion. 

As for the power to detain someone in order to assess capacity, the presence of such a power is debatable. In the paper I wrote with Anne-Maree Kelly, Tina Cockburn and Anand Senthi (see https://onlinelibrary.wiley.com/doi/10.1111/1742-6723.14299) we said:

There is a grey area where the patient’s competence is in doubt and the patient refuses treatment or seeks to leave the ED before an assessment of capacity can be undertaken. It has been argued that necessity could justify brief detention in order to complete an examination and determine a person’s competence or mental health.(14) It could probably only be justified where there were strong grounds to think the person was not competent and was a danger to themselves to the extent that there was imminent danger of inevitable and irreparable harm.(14,15) Necessity could not justify detention because a doctor has not ‘cleared’ the patient or on the basis that if they leave ‘something’ might happen.

14. Eagle K, Ryan CJ. Mind the gap: the potentially incapable patient who objects to assessment. Aust. Law J. 2012; 86: 685–96

15. O’Neill N, Peisah C. Substitute consent to medical and dental treatment. In: O’Neill N, Peisah C, eds.Capacity and the Law. Sydney: Sydney University Press, 2011.

The WA Policy says (at [3.2.2]):

If capacity is unable to be assessed … and there is an immediate risk to their health and safety, a restrictive practice (i.e., restraint) can be used to prevent the patient from leaving the healthcare facility…

As noted that is a ‘grey’ area and the proposition is arguable. Clearly WA health are taking the view that the argument would be upheld but the ultimate test will be if and when a superior court is asked to make a decision on the matter.  I think WA Health are probably right. I would think a court would find an authority to detain exists at common law where there is good reason to question the patient’s capacity but that has not been formally assessed.  That would not arise just because a patient wanted to leave or was making a poor choice.  There would have to be further objective evidence that puts the issue of competence in serious question, eg the patient’s behaviour, their response to questions etc.  The starting point is that competence is presumed so it would be a high bar and action would have to be taken quickly to try and arrange an assessment by an appropriately qualified and authorised practitioner.  But as we noted in our article, the argument exists, the WA policy is not trying to find a power out of nothing. 

I don’t see any significant difference between ‘immediate risk’ and ‘imminent peril’. In the modern world where everyone is trained in ‘risk assessment’ it seems to me to be simply conveying the same idea but using more modern language. I note in our paper we used the term ‘immediate danger’.  

Conclusion

My correspondent is correct, the policy in question ‘does not confer the power to restrain someone simply because it exists’.  The power has to be found in the law.  The policy is an attempt to contextualise the law and explain to WA Health employees what the law permits and what the Department requires of them.  I don’t see that the Policy is contrary to the law and to that end I refer my readers to the more detailed exposition in the published paper:

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.