A discussion document intended for Emergency Department doctors. Questions and comments are welcome at the bottom of the post.
- Author: Dr Anand Senthi, Specialist Emergency Physician
- Peer review and editing by Dr Nicole Liesis, Specialist Emergency Physician
- With acknowledgment of Dr Michael Ebern for provision of special insights
First published on this website on 5th June 2023
- Duty of Care & The Law of Negligence
- The Mental Health Act 2014, WA
- The Guardianship & Administration Act 1990, WA
- The Doctrine of Necessity
- Section 25 of the Criminal Code – Sudden or Extraordinary Emergency
- Determination of Decision-Making Capacity
- Health Department or Hospital Policies including Smoking Policies
- References & Resources
This document is a discussion document only and does not constitute legal advice. The author is not a lawyer and disclaims all liability for any action or omission based on information contained within this document. While the author has compiled this document in good faith, the author does not warrant that the information contained is true and correct or free from error.
A recent court case in WA raised serious questions for Emergency Department (ED) doctors regarding what legal duties and rights they have to restrain or detain patients. This document discusses these matters as they pertain to doctors in Western Australian (WA) Emergency Departments (EDs). However many of the legal concepts and laws are sufficiently similar to make this discussion of interest to doctors across Australia.
Duty of Care and negligence law creates obligations for ED doctors towards their patients. A failure of a doctor to properly exercise their responsibilities and authorities under such legislation, could give rise to civil liability under Duty of Care, specifically the Civil Liability Act, 2022. However, Duty of Care and negligence law does not provide any legal authority to restrain patients. That authority must be conferred by other legislation.
The Mental Health Act 2014 (MHA) does provide legal authority to restrain certain patients whom a doctor formally places under the MHA based on a reasonable suspicion they are suffering from a mental illness in conjunction with several other required criteria. Of note, patients under the influence of drugs or alcohol are not excluded from being placed under the MHA. In reality, intoxication may make both diagnostic certainty with regard to mental illness and risk assessment very difficult.
The Guardianship & Administration Act (GaAA) contains provisions for doctors in certain circumstances, to provide urgent treatment to patients who are unable to make reasonable judgements in respect of the treatment. Treatment of a person without their consent requires some force to be applied, so it is argued that this implies a right under this legislation to use force. However, the use of force is not specifically addressed in this legislation. As such it is unclear whether this legislation would protect doctors from criminal or civil charges arising from the use of force, such as restraint, to enact said urgent treatment.
The common law doctrine of necessity applies when there is imminent peril to life or serious injury and it is for the protection of the person or others. The response enacted must be proportionate to the perceived risk of imminent harm. The doctrine of necessity may provide a defence from criminal and/or civil liability for the short term use of restraint in situations akin to an emergency. This is likely to be the most applicable common law doctrine that may, in very limited circumstances, allow doctors to lawfully restrain patients for very short periods who are not under the MHA. Historically in WA many, if not most, of the situations that gave rise to the restraint and/or detention of patients within EDs who are not under the MHA, would be unlikely to meet the threshold for imminent peril.
In general, legislation and common law doctrines only provides rights to restrain or detain patients who lack decision-making capacity. Patients are presumed to have capacity until assessed otherwise and such assessment is a dynamic process that is both time and decision specific.
Thus, in WA the circumstances under which a patient potentially may be legally restrained in ED are:
– when detained under the MHA for examination by a psychiatrist,
– for urgent treatment of patients (excluding pyschiatric treatment of mental illness) who are unable to make reasonable decisions for themselves under the GaAA, or
– in situations to prevent imminent peril (doctrine of necessity)
– in situations of sudden or extraordinary emergency, where the circumstances overwhelmingly impel disobedience of the law (Section 25 Criminal Code)
When doctors restrain patients in other circumstances, the criminal code pertaining to assault and deprivation of liberty, as well as a civil liability, may apply.
This document is concerned with the use of force by ED staff to restrain or detain patients. “Restraint” is defined as using either physical or chemical means to restrict a patient’s freedom of movement in order to provide safe care and minimise harm. Restraint can in some situations also be considered to be “detention”, especially when prolonged. However, detention can occur without restraint through verbal instruction, coercion or through the use of seclusion (the involuntary confinement of a patient in an enclosed environment from which free exit is prevented). While several of these terms may be used, “restraint” will be the primary term used and issue this document is concerned with.
In general there are few, if any, situations outside of self-defence where a person who is competent with decision-making capacity would be able to be lawfully restrained within an ED. As such this discussion applies primarily to patients who lack decision making capacity – see determination of decision making capacity.
A recent court case in WA raises serious questions for Emergency Department (ED) doctors regarding what legal duties and rights they have to restrain or detain patients physically or chemically. In this case, an alcohol intoxicated male was brought to ED after he passed out at the shops. When he awoke, he wanted to have a smoke and walked out of the building. A “code black” was issued and security brought him back into the ED, based on a belief that he may be at risk to himself by leaving. The judge instructed the jury that the restraint of this ED patient was unlawful. A judge’s instructions to a jury does not create a legal precedent by itself. However it is an interesting example of the application of the law and as such, something ED doctors need to be aware of and consider. It has prompted a wider re-evaluation amongst the ED community regarding the legal issues involved when doctors restrain, or order the restraint, of patients based on a belief that they are protecting the patient or others from possible harm.
The courts and legislature hold a patient’s right to refuse treatment and/or leave the ED in the highest regard. Unless permitted by specific legislation, it is unlawful to restrain or detain a patient in the ED and doctors (and other staff) may face civil liability or criminal prosecution for doing so. In the absence of such legislative empowerment a legal defence may exist under very limited common law provisions. Any legally empowered or defendable force must be reasonable and proportionate – the minimum force required should be used and it should not be out of proportion to the harm avoided by the use of force.
There is interplay and potential conflict between obligations (duties), rights and prohibitions that exist in various legal frameworks in WA including:
- Duty of Care and Negligence Law
- The Doctrine of Necessity
- The Criminal Code pertaining to Assault and Deprivation of Liberty
- The Criminal Code Section 25 – Sudden or Extraordinary Emergency
- The Mental Health Act 2014 (MHA)
- Guardianship & Administration Act 1990 (GaAA)
This discussion paper will seek to examine the interaction of these laws and principles with respect to the use of force to enforce treatments without consent, restrain patients and prevent patients from leaving EDs. Written in response to uncertainties generated in the ED community due to the recent WA court case, in order to provide a detailed examination of the relevant legal principles, this discussion document will confine itself to WA legislation as there are subtle differences between states and territories. However common law doctrines apply across all Australian jurisdictions and the relevant legislation are sufficiently similar between jurisdictions, to make this discussion of significant interest to doctors across Australia.
Duty of Care & The Law of Negligence
Doctors fear they can be held liable if they failed to restrain and/or detain a patient with questionable capacity, and such a patient was to come to harm or harm others when they left the ED.
There has been a widespread false belief amongst the ED community that the common law principle of duty of care applies a duty upon doctors (and right) to restrain patients they believe to be at risk of harm to themselves or others. Duty of care, by itself, does not provide any such rights or duties, nor exemptions from criminal code charges of assault or deprivation of liberty. You do not have an obligation – and therefore cannot have a duty – to assault, or detain a person against their will where you have no other legal authority to do so.
Another common misconception is that duty of care is a purely common law principle established by a series of court cases, rendering it difficult to easily conceptualise. While historically true, duty of care has since been largely codified in statute, which provides more concrete principles to explain its application. In 2002 a report commissioned by the Federal government was released in response to concerns of skyrocketing negligence insurance premiums, “Review of the Law of Negligence”, that resulted in a patchwork of very similar legislation being passed in all Australian states and territories that share key principles from this Review. The resultant WA version was the Civil Liability Act, 2022.
Section 5PB details the standards of care for health professionals and states “an act or omission of a health professional is not a negligent act or omission if it is in accordance with a practice that, at the time of the act or omission, is widely accepted by the health professional’s peers as competent professional practice.” If this defence from liability due to such “wide acceptance” of practice in the circumstances was not determined by the court, then Section 5B details the general principles that determine civil liability. These principles and wording are reflected identically or near verbatim in the equivalent legislation of all other states and territories except the NT (ACT, NSW, Qld, SA, Tas, Vic). Where a duty of care exists, as it does between a doctor and patient, there is potential civil liability when a doctor fails to take precautions against a risk that was foreseeable and not insignificant. A “negligence calculus” is also detailed, which outlines four factors that must be weighed by the courts to determine whether a reasonable doctor in the circumstances should have taken such precautions:
(a) the probability that the harm would occur if care were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity that creates the risk of harm.
The most common application of this to the practice of ED doctors is the duty to provide advice to patients about the risks of not following medical advice. Here c) the burden of taking precautions to avoid the risk of harm is very low as all that is required is a discussion with the patient to explain the risks. Given the burden is quite low, it is likely that a) probability of harm and b) the seriousness of such harm would not need to be particularly high to expose a doctor to liability if they failed to explain the risks to the patient.
By contrast, where the burden involves restraining a patient (a serious burden), at a minimum one would expect this would require a very high probability of serious harm when considering potential civil liability. This alone is not sufficient, however, as this civil legislation does not provide any lawful exemptions to the criminal code of assault and deprivation of liberty. Where the burden requires a criminal offence to be committed by the doctor, no Duty of Care to restrain can exist, and no liability should result if they failed to restrain a patient. This is, unless that significant burden of restraint was reduced by protections provided by other legislation (e.g. the MHA) empowering the doctor to lawfully restrain the patient.
In summary, there is no right and therefore no duty to restrain a patient under “duty of care” by itself. That right or duty must be conferred by other legislation.
Importantly, a failure of a doctor to properly exercise their responsibilities and authorities under other legislation such as the MHA or GaAA, (i.e. fails in their duty of care), could potentially give rise to civil liability under the Civil Liability Act, 2002. However, there are protections from liability contained within both the MHA and GaAA:
- Section 583 of the MHA provides protection from civil liability for persons performing, or purporting to perform, functions of the Act and includes both acts and omissions done in good faith.
- Section 584 of the MHA provides protection from both civil and criminal liability for a person who has lawful charge of a person who has, or is reasonably suspected of having, a mental illness and detains such a person.
- In a similar vein, Section 114 of the GaAA provides that a person is not personally liable for any act done by him in the performance or purported performance of his function unless, the act was done, dishonestly, in bad faith or without reasonable cause; and an act includes an omission to act.
The Mental Health Act 2014, WA
The Mental Health Act 2014 (MHA) does provide powers to restrain patients and enforce treatment where patients satisfy the required criteria and are placed under the Mental Health Act through the use of specific forms. In consideration of these provisions, note that the MHA requires patients to be managed in the “least restrictive manner that is consistent with their needs”.
Sections 26-29 of the MHA authorise a medical practitioner to refer, detain and transport a person for the purpose of examination by a psychiatrist if they reasonably suspect the person is in need of an involuntary treatment order:
(1) A person is in need of an inpatient treatment order only if ALL of these criteria are satisfied —
(a) that the person has a mental illness for which the person is in need of treatment;
(b) that, because of the mental illness, there is —
(i) a significant risk to the health or safety of the person or to the safety of another person; or
(ii) a significant risk of serious harm to the person or to another person;
(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;
(d) that treatment in the community cannot reasonably be provided to the person;
(e) that the person cannot be adequately provided with treatment in a way that would involve less restriction on the person’s freedom of choice and movement than making an inpatient treatment order.
A patient can be placed under Form 1A (referral for examination by psychiatrist) in the community or ED, based on an initial assessment by a doctor or authorised mental health clinician that must be made in person (or in some cases through audiovisual technology). In forming an opinion on whether a patient satisfies the criteria of Section 25 MHA, the doctor can consider third party information. The patient can consent to treatment at the time of assessment and still be placed under the MHA.
Under Section 58 of the MHA, when a patient has been referred on a Form 1A, upon arriving at the referred hospital (including the ED), they can be detained there for up to 24hrs. The expectation is that they will be reviewed by a psychiatrist during this time to determine further orders, detention and admission.
The Form 1A can be revoked under Section 31 of the MHA by any medical practitioner or authorised mental health practitioner if the clinician is satisfied that the person referred is no longer in need of an involuntary treatment order. Practically this may be required, for example, when a patient is reassessed upon awakening from a period of sedation. However, this practitioner is obliged to consult the original practitioner about whether or not to revoke the referral, or despite reasonable efforts to do so, the other practitioner cannot be contacted. Given ED shift work, there is a high probability that if an initial ED doctor commences the patient on a Form 1A, they may not be at work when the later assessment is made. It is important to provide clear documentation in the medical record and on the Form 1A about reasons for placing the patient under the MHA. This will assist subsequent ED doctors and mental health practitioners in their decision-making about capacity, mental illness, the need for inpatient treatment and whether or not to revoke a Form 1A.
Patients under the influence of drugs or alcohol are not excluded from being placed under the MHA. Where patients are intoxicated on drugs or alcohol and demonstrate psychotic behaviour or suicidal ideation, it may not be possible to exclude an underlying mental illness such as drug induced psychosis, or depression with suicidal thoughts. Where a clinician reasonably suspects that such a patient may be in need of an involuntary treatment order as defined by Section 25 of the MHA, the patient may be placed under the MHA. The likely benefit from “forming” the patient and detaining as an inpatient must be carefully weighed against the risk of harm of enacting the Mental Health Act requirements, as well as the risk of not intervening. In reality, intoxication may make both diagnostic certainty with regard to mental illness and risk assessment very difficult.
A person with a mental illness within the ED that is being observed, managed or is planned for further review by the ED or mental health team, who is not detained under the MHA, cannot be restrained or detained unless some other common law principles or statute apply, which are discussed in detail below. Such patients retain the right to leave the ED or to “take breaks outside”. However, if they seek to leave and safety concerns are present, a doctor or mental health practitioner may need to reassess the patient to determine if at that time they fulfil the criteria for an involuntary treatment order and should be placed under the MHA. Practitioners may not coerce a patient to stay by making statements such as “If you try to leave I will place you under the MHA” but the practitioner can advise the patient that such action may result in them being reassessed to determine if they should be placed under the MHA.
The Guardianship & Administration Act 1990, WA
The Guardianship & Administration Act (GaAA) in Sections 110ZH, 110ZI, 110ZK contains provisions for doctors in certain circumstances, to provide “urgent treatment” to patients who are unable to make reasonable judgements in respect of the treatment. Urgent treatment is defined as treatment urgently needed by a patient to save a patient’s life, to prevent serious damage to the patient’s health, or to prevent the patient from suffering or continuing to suffer significant pain or distress. Urgent treatment does not include psychiatric treatment, which is “treatment as defined by the MHA” which indicates the GaAA defers to the MHA for the primary psychiatrict treatment of mental illness. However, of relevance to ED, the treatment of alcohol and drug intoxication or withdrawal is not excluded from the GaAA.
To clarify, such patients do not have to be under any form of guardianship order or have an appointed guardian for these provisions to apply – they are applicable to any patient lacking decision making capacity, requiring “urgent treatment”. However urgent treatment under these provisions can only be provided if:
- a) it is not practical to determine whether the patient has an advance health directive containing a treatment decision that is inconsistent with providing the treatment; and
- b) it is not practical to obtain consent for the treatment from a substitute decision maker, such as the patient’s guardian or enduring guardian (if either exists), or the “person responsible” for the patient as detailed under Section 110ZD of the GaAA. This section lists an order of priority for people, such as next-of-kin, family and carers, who may be willing to make treatment decisions on behalf of the patient in the best interests of the patient
Treatment of a person without their consent inherently requires some force to be applied, because any touching in the provision of medical care is considered a use of ‘force’ in the eyes of the law. So there is an argument (discussed in detail here) that implicit within this legislation is a right to use force to provide urgent treatment. Any use of force would certainly require the use of the minimum force necessary and must end as soon as urgent treatment (as defined by Section 110ZH) was no longer required.
The Queensland version of this legislation does explicitly specify the right to use force, while the use of force, restraint and detention are not specifically addressed in the WA GaAA legislation at all. However, it is possible, if not probable, that this legislation would protect doctors from criminal or civil charges arising from the use of reasonable force to enact urgent treatment, though there remains a degree of uncertainty through a lack of relevant case law testing this.
In summary, where urgent treatment of a person without decision making capacity is required, and it is not practical to obtain consent from a substitute decision maker or determine that the treatment is inconsistent with an advanced health directive, it can be provided to the patient without their consent and this likely implies authority to use force to provide it. Where a substitute decision-maker (guardian or other “person responsible”) can be contacted then there is an obligation to do so, and a treatment order consenting to management (including the necessary use of force) should instead be sought from that substitute decision-maker.
The Doctrine of Necessity
The doctrine of necessity is a common law doctrine, where the courts have determined there may be a defence available to a person who restrains someone in the face of imminent peril and it is for the protection of the person or others. The doctrine of necessity may provide protection from criminal and/or civil liability for the short term use of restraint (and detention) in situations akin to an emergency.
According to the Office of the Chief Psychiatrist of WA the doctrine of necessity has been applied where the following 3 elements can be established:
- The restraint was done to avoid an irreparable evil (such as imminent peril to life or serious injury) to the person or others.
- The persons carrying out the restraint are acting from an honest and reasonable belief that the individual was placing him or herself or others in a situation of imminent peril. If there is an interval of time between the threat and the restraint, it is unlikely that a defence of necessity could apply.
- The restraint was proportionate to the ‘evil’ or harm about to occur. That is, the persons carrying out the restraint responded in a manner consistent with how a reasonable person would have responded in the circumstances.
Importantly, the doctrine of necessity is time critical in two aspects. While temporary restraint and detention may be justified under the defence of necessity in situations of imminent danger to the person or others, extended periods would not be permitted. The doctrine also cannot be applied when there is likely future peril or serious injury, the peril must be imminent.
Arguably many, if not most, of the situations that historically in WA have given rise to the restraint and/or detention of patients within EDs who are not under the MHA, would be unlikely to meet the threshold of imminent peril.
Section 25 of the Criminal Code – Sudden or Extraordinary Emergency
Section 25 of the Criminal Code (p.51) states:
(2) A person is not criminally responsible for an act done, or an omission made, in an emergency under subsection (3)
(3) A person does an act or makes an omission in an emergency if —
(a) the person believes —
(i) circumstances of sudden or extraordinary emergency exist; and
(ii) doing the act or making the omission is a necessary response to the emergency; and
(b) the act or omission is a reasonable response to the emergency in the circumstances as the person believes them to be; and
(c) there are reasonable grounds for those beliefs
In the Supreme Court of Appeal case of Floyd v The State of Western Australia, Justice McLure stated that the defence of emergency “exists to meet cases where the circumstances overwhelmingly impel disobedience to the law.”
There remains a lack of clarity regarding which situations this defence might be considered to apply to ED doctors restraining patients. One argument against the applicability of Section 25 as a defence to the use of force in EDs is that most envisaged scenarios may not qualify as sudden or extraordinary emergencies as they are largely expected scenarios that occur in the usual practice of emergency medicine (and therefore should be prepared for and managed as a matter of standard practice). This is akin to a fire, not being considered a sudden or extraordinary emergency for a firefighter encountering it in the course of their job.
Determination of Decision-Making Capacity
There are general principles used to determine decision making capacity. While these principles have been formally encapsulated in Section 15 of the MHA, they apply generally to all patients, whether or not they are under the MHA.
The factors relevant to decision making capacity paraphrased from the MHA are that the person can:
(a) understand any information or advice about the decision; and
(b) understand the matters involved in the decision; and
(c) understand the effect of the decision; and
(d) weigh up the factors referred to in paragraphs (a), (b) and (c) for the purpose of making the decision; and
(e) communicate the decision in some way.
By default, at law, a person is presumed to have capacity unless and until that presumption is rebutted through assessment. Of critical relevance to ED practice, merely being intoxicated by drugs or alcohol does not by itself remove capacity, even if the person may make different decisions while intoxicated to those they would make when not intoxicated.
Decision making capacity is decision-specific which means a patient may have capacity to make some decisions but not others. For example, a patient under the MHA who lacks the capacity to decide on their psychiatric treatment may retain capacity to decide when and how they wish to toilet themselves or whether to accept other treatments such as analgesia or nicotine replacement therapy.
Decision making capacity is also time-specific. For example, an unconscious intoxicated person may be appropriately assessed as lacking capacity and detained without consent. However, upon regaining consciousness and expressing a new decision such as a desire to leave, the legal presumption that, now conscious, they have capacity to make this new decision applies unless reassessed to be lacking at this time. A common misconception amongst ED staff incorrectly inverted this presumption – it was erroneously assumed a patient was deemed not to have capacity unless capacity could be determined with certainty, and this lack of capacity applied indefinitely until reassessed to have capacity.
A challenging scenario in the ED is a patient with potential risk of serious harm to themselves or others (usually based on third party information) and unclear capacity, as the doctor has not yet been able to complete an assessment of capacity. In general, the presumption of capacity exists and the patient’s decisions must be respected, including decisions to refuse treatment or leave the ED. Eagle & Ryan (2012 & 2014) have argued for the possible existence of an ill-defined common law power that may allow a doctor with reasonable concerns about capacity and risk to temporarily detain such a patient for the purpose of assessment of capacity. However there remains a lack of case law testing this argument.
Given the many competing interests within a busy ED, the need for timely assessment and reassessment of capacity as it dynamically changes poses significant practical difficulties for all staff involved (e.g. doctors, nurses and security). In addition, the ED patient who lacks decision-making capacity and may be at risk of harm is often somewhat reluctant to wait patiently for repeat assessment.
Health Department or Hospital Policies including Smoking Policies
No hospital or health department policy can give staff any legal rights to restrain or detain ED patients (or effectively detain through threats and coercion). Such rights can only be conferred by legislation and common law doctrines.
As such, any health department policy such as smoke free policies that require hospitals to be smoke free outdoors do not empower staff to restrain or detain patients to prevent them from going outside to smoke.
A patient detained under the MHA can have their freedom of movement restricted which can include preventing them from going outside to smoke. However, any restriction of movement performed under the authority of the MHA must be utilised in order to facilitate treatment or optimise patient safety in the least restrictive manner. Such restrictions must not be applied to coerce or force compliance with hospital policies unrelated to mental health care. Patient autonomy should be preserved wherever possible, even when capacity for certain treatment decisions is lacking.
The busy ED environment is less than ideal for patients with impaired capacity and mental health issues, and taking breaks outside the ED environment can be viewed as therapeutic. Patient distress from lengthy detention inside the ED, as well as nicotine withdrawal can contribute significantly to anxiety and agitation with resultant increased risk to the patient and staff. This must be carefully weighed by clinicians against the realistic risk of absconding and then harming themselves or others before being retrieved by police.
References & Resources
- Court Case highlights concerns over patients being held unlawfully in WA hospitals, ABC News 21/1/23.
- Duty of Care
- Mental Health Act
- Guardianship & Administration Act 1990, WA
- Section 25 of the Criminal Code
- Other References
- Eagle & Ryan
- Eagle, K. and C. J. Ryan (2014). “Potentially incapable patients objecting to treatment: doctors’ powers and duties.” Medical journal of Australia 200(6): 352-354.
- Eagle, K. and C. Ryan (2012). “Mind the gap: The potentially incapable patient who objects to assessment.” Australian law journal 86(10): 685-696.
- Office of the Chief Psychiatrist,WA
- Community of Practice Forums:
- Duty of Care and Restraint in Mental Health and Emergency – legal and clinical perspectives from OCP and Royal Perth Hospital Emergency Department (30/03/23)
- Working with imminent risk in a non-authorised setting – the legal context with OCP General Counsel (03/08/22 and 10/08/22)
- Community of Practice Forums: