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Mind the gap: The potentially incapable patient
who objects to assessment
Kerri Eagle and Christopher Ryan
*
The issues surrounding the patient who objects to necessary and possibly
urgent treatment are contentious and often confusing for health care
practitioners, particularly in the hospital setting. This article focuses on the
situation in which a patient’s circumstances would lead a reasonable person
to conclude that he or she might lack capacity or be suffering from a mental
illness and where treatment refusal would place the patient at risk of serious
harm. We consider the current law and some of the underlying legal concepts
impacting on the powers and duties of health care practitioners in the
management of such objecting patients and conclude that in such circum-
stances the common law may provide a limited justification to detain the
person for further assessment.
INTRODUCTION
The patient who objects to necessary treatment, but who may lack capacity to do so, can create a legal
dilemma for health care practitioners. It is unclear in such instances whether and to what extent the
healthcare practitioner may detain an objecting patient to ascertain whether he or she has the capacity
to refuse that treatment. There are a number of scenarios that give rise to particular uncertainty. These
include:
• the unconscious patient who, brought to the emergency department by ambulance, awakes and
attempts to leave without further assessment or treatment;
• the drowsy patient with a head injury who refuses to wait for investigations or monitoring;
• the intoxicated patient who regains consciousness and starts walking out of hospital without
examination;
• the patient who abruptly refuses life saving treatment and begins to exit the hospital without
explanation in circumstances that would suggest they may lack capacity.
Giving rise to similar difficulties is the scenario in which a person who is suspected of having a
mental illness objects to an assessment. For instance, the patient who has overdosed on medication
(intention not known), awakes and immediately attempts to leave the emergency department.
In each of these scenarios, and a myriad of similar situations, four key factors are present:
(a) there has not been an opportunity to either assess capacity or establish the presence of mental
illness;
(b) there is information to suggest that capacity may be impaired or that a mental illness may be
present;
(c) the patient is actively attempting to leave hospital; and
(d) there is reason to believe that leaving without treatment may result in death or significant harm.
In this sort of scenario, the health care practitioner’s ability and/or duty to lawfully restrain the
patient for the purposes of an assessment of capacity seems unclear. The decision to act invariably
needs to be made on the spur of the moment and any attempt to restrain the patient is likely to result
in non-consensual physical contact. In addition to the risk of being deprived of necessary treatment,
inherent in this situation is the risk of injury to the patient.
A number of questions are raised by the scenario of the objecting, potentially incapable, patient.
What can a health care practitioner lawfully do when a patient decides to leave without being
*
Kerri Eagle LLB (Hons), LLM, MBBS; Advanced Trainee in Forensic Psychiatry, Justice Health and Forensic Mental Health
Network, New South Wales. Christopher Ryan MBBS, MHL, FRANZCP; Senior Clinical Lecturer, Discipline of Psychiatry,
University of Sydney; Honorary Associate, Centre for Values, Ethics and the Law in Medicine, University of Sydney.
(2012) 86 ALJ 685 685
assessed? For instance, does the practitioner have the ability to temporarily detain the patient for the
purpose of conducting an assessment where there is reason to suspect incapacity or mental illness? If
the practitioner has the ability to detain a person in these circumstances, is there a duty to detain whilst
an assessment is conducted?
In practice, doctors faced with these scenarios may detain patients briefly, without consent, to
assess or clarify the situation. Is this lawful? Does this expose the hospital or health care practitioner
to liability? Health care practitioners need clarification of their obligations with regard to an objecting
patient, where there is evidence to suggest that a person’s capacity to make a decision about their care
may be compromised.
THE ABILITY TO DETAIN A PATIENT TO ASSESS CAPACITY
In the first section of this article, we look at the common law approach to autonomy, consent and
capacity, the statutory regimes in place for the treatment of incapacitated patients, the mental health
legislation and the emergency treatment powers under statute and common law.
The common law approach to autonomy, consent and capacity
Autonomy
The common law places an emphasis on personal liberty and personal autonomy. This is reflected in a
number of judgments. In Antunovic v Dawson [2010] VSC 377, a case involving a writ of habeas
corpus, Bell J had an opportunity to consider the role of personal liberty and confirmed its application
to Australian common law. He stated that “[p]ersonal liberty is a foundational value of the common
law and our constitutional arrangements” (at [6]). The right to personal liberty encompasses the
principle of autonomy or self-determination which has been well established at common law.
1
This
principle underpins the requirement of consent to treatment.
2
Personal freedom and liberty is
considered a right that is protected by the common law. “Restrictions cannot be imposed on that
liberty without legal authorisation” (at [8]). There is a presumption in favour of liberty. Bell J stated
“when a court considers the legality of a restraint on personal liberty, the starting point is that it is
prima facie illegal at common law” (at [118]). A restraint on personal liberty, without legal
authorisation may give rise to civil and/or criminal sanctions, such as assault, battery or false
imprisonment.
In the English case of Re B [2002] 2 All ER 449, which involved a competent young woman
requesting withdrawal of life support, Butler-Sloss P commented on the dilemma faced by medical
officers in their concern for the fundamental principle of the sanctity of life, and observed that this was
not an absolute principle and must yield to the principle of self-determination. Butler-Sloss P
cautioned of “a serious danger … of a benevolent paternalism which does not embrace recognition of
the personal autonomy of the severely disabled patient” (at [94]).
In Re T [1992] 4 All ER 649; [1992] EWCA Civ 18 at [26], Lord Donaldson MR described the
dilemma that arose in relation to an objecting patient in terms of two conflicting interests, being “that
of the patient and that of the society in which he lives”. Lord Donaldson reasoned that the patient’s
interest was in self-determination, but that society’s interest was in upholding the sanctity of human
life and concluded that “[i]t is well established that in the ultimate the right of the individual is
paramount”.
In Hunter & New England Area Health Service v A (2009) 74 NSWLR 88, McDougall J approved
of, but reformulated, Lord Donaldson’s judgment. McDougall J viewed “a competent adult’s right of
autonomy or self-determination” and “the interest of the State in protecting and preserving the lives
and health of its citizens” as “two relevant but in some cases conflicting interests” (at [5]).
3
In
1
See Brightwater Care Group (Inc) v Rossiter (2009) 40 WAR 84 at [24] (citing Airedale National Health Service Trust v Bland
[1993] AC 789).
2
Department of Health & Community Services v JWB (1992) 175 CLR 218 at 233, see also Brightwater Care Group (Inc) v
Rossiter (2009) 40 WAR 84 at [25].
3
Cited in Brightwater Care Group (Inc) v Rossiter (2009) 40 WAR 84; H Ltd v J [2010] SASC 176.
Eagle and Ryan
(2012) 86 ALJ 685686
discussing how such a conflict should be resolved, McDougall J stated, similarly to Lord Donaldson,
that “at least when other factors did not tip the balance one way or the other, the individual patient’s
right [is] paramount” but that “if there were doubt as to the individual’s expression of preference, ‘that
doubt falls to be resolved in favour of the preservation of life’” (at [9]).
4
Consent
It is well established at common law that consent is required for any assessment or medical treatment
to be lawful. Treatment without consent constitutes the civil tort of trespass to the person and may also
be a crime.
5
The restraint of a person’s freedom against their will constitutes the civil tort of false
imprisonment.
6
“Consent ordinarily has the effect of transforming what would otherwise be unlawful
into accepted, and therefore acceptable, contact”, however, it has been acknowledged that there is a
general exception regarding physical contact that may be considered “generally acceptable in the
ordinary conduct of daily life”, such as social contact at parties or “jostling in a street”.
7
This
generally acceptable physical contact might occur when hospital staff stop someone briefly to ask
them where they are going and why, but is unlikely to extend to circumstances where a doctor refuses
to allow a patient to leave the emergency department without first testing his capacity to do so.
Capacity
The ability of a person to make a decision “pre-supposes a capacity to do so”.
8
Under the common
law, all adults are presumed to have capacity “but it is a presumption which can be rebutted”.
9
In a
recent article, Skegg suggested that the presumption of capacity can be “very inadequate” in
day-to-day medical practice. He provided a number of clinical examples in which he contended a
“rebuttable presumption of incompetence” would make “better sense”.
10
One of these examples is the
patient in an emergency room setting who has possibly attempted suicide. There must be more to rebut
the legal presumption of capacity than the presence of an irrational decision. The right to choose “is
not limited to decisions which others might regard as sensible. It exists notwithstanding that the
reasons for making the choice are rational, irrational, unknown or even non-existent”.
11
The assessment of capacity by health care practitioners can be a difficult and potentially time
consuming exercise. Dame Butler-Sloss acknowledged this in Re B, referring to it as a “most difficult
exercise”.
12
Similarly, in Re T, Lord Donaldson stated “[d]octors faced with a refusal of consent have
to give very careful and detailed consideration to the patient’s capacity to decide at the time when the
decision was made”.
13
An assessment of capacity must consider inter alia whether there is the
presence of an impairment or disturbance of mental functioning rendering the person unable to
comprehend or retain information material to the relevant decision or unable to weigh up the
information in the process of arriving at a decision.
14
An assessment of capacity cannot be done without time and thought. In the circumstance of a
patient leaving the emergency department, this would invariably result in the need to detain them for
4
See also Re T [1992] 4 All ER 649; [1992] EWCA Civ 18 at [26].
5
Re T [1992] 4 All ER 649; [1992] EWCA Civ 18 at [5].
6
Marshall v Watson [1972] 124 CLR 640; see generally Fleming JG, The Law of Torts (8th ed, Law Book Co, NSW, 1992)
pp 27-30 (the applicable principles).
7
Department of Health & Community Services v JWB (1992) 175 CLR 218 at 233 (citing Collins v Wilcock (1984) 1 WLR 1172
at 1177).
8
Re T [1992] 4 All ER 649; [1992] EWCA Civ 18 at [27].
9
Re T [1992] 4 All ER 649; [1992] EWCA Civ 18 at [27], see also Hunter & New England Area Health Service v A (2009) 74
NSWLR 88 at [23] (citing Re MB [1997] 2 FCR 541 at 553).
10
Skegg PDG, “Presuming Competence to Consent: Could Anything be Sillier?” (2011) 30(2) UQLJ 165 at 187.
11
Re T [1992] 2 All ER 649; [1992] EWCA Civ 18 at [30] (citing Sidaway v Board of Governors of the Bethlem Royal Hospital
& Maudsley Hospital [1985] AC 871).
12
Re B [2002] 2 All ER 449 at [29].
13
Re T [1992] 2 All ER 649; [1992] EWCA Civ 18 at [28].
14
Re MB [1997] 2 FCR 541 at 553.
Mind the gap: The potentially incapable patient who objects to assessment
(2012) 86 ALJ 685 687
at least a short time for that assessment to be done. If a person refuses assessment, but has capacity,
the decision to refuse must be respected. The detention of a person against their will may constitute
false imprisonment. However, the difficulty arises if it is unclear whether the person lacks capacity and
refuses an assessment.
Statutory regimes for treatment of incapacitated patients
There is legislation relevant to the treatment of patients who are found to lack capacity in all States
and Territories.
15
The legislation applies to “incapable” persons
16
and as such offers limited assistance
in the management of an objecting patient where incapacity is in question but not yet established.
There is no explicit statutory power to detain patients for an assessment of capacity.
Mental health legislation
There is a statutory framework in each of the States and Territories which provides for the detention of
mentally ill persons for assessment and treatment. Patients detained under the various mental health
Acts in each of the States and Territories may receive psychiatric treatment and, in some cases,
medical treatment without consent. The definition of mental illness and the grounds for involuntary
admission and treatment vary, to some degree, between each of the Acts.
17
For example, ss 14 and 15
of the Mental Health Act 2007 (NSW) provides that a “mentally ill person” or a “mentally disordered
person” may be detained involuntarily for assessment and treatment in a declared facility.
The Australian Capital Territory, the Northern Territory and Tasmania define mental illness in a
way that is like a hybrid of the New South Wales mentally ill and mentally disordered provisions.
18
In
some other jurisdictions, the definition of mental illness is quite broad, including, “if the person suffers
from a disturbance of thought, mood, volition, perception, orientation or memory that impairs
judgment or behaviour to a significant extent”.
19
Detention under the Mental Health Act 2007 (NSW) must be on the basis of a certificate about the
person’s condition set out by a medical practitioner or accredited person, and may only be given if the
medical practitioner or accredited person “has personally examined or observed the person’s
condition” and “is of the opinion that the person is a mentally ill person or a mentally disordered
person” (s 23). Where a person is physically inaccessible for examination or observation, a magistrate
may authorise the personal examination of the person to determine whether a certificate for their
detention may be issued (s 68(a)).
The mental health legislation in the various States and Territories does not allow, without court
order, the detention of a person for assessment in circumstances where they are objecting, an initial
examination or assessment has not been done by an appropriate person and a medical practitioner or
accredited person has not been able to form the opinion that they are a mentally ill or mentally
disordered person. In the emergency setting this poses a similar dilemma to the patient who potentially
lacks capacity and is at significant risk.
15
Guardianship Act 1987 (NSW); Guardianship and Administration Act 1995 (Tas); Guardianship and Administration Act 1993
(SA); Consent to Medical Treatment and Palliative Care Act 1995 (SA); Guardianship and Administration Act 1986 (Vic);
Guardianship and Administration Act 2000 (Qld); Guardianship and Administration Act 1990 (WA); Emergency Medical
Operations Act 1973 (NT); Adult Guardianship Act 1998 (NT).
16
Guardianship Act 1987 (NSW), s 34(b); Guardianship and Management of Property Act 1991 (ACT), ss 32A, 32D “protected
person”; Guardianship and Administration Act 2000 (Qld), s 65; Guardianship and Administration Act 1993 (SA), s 58
“incapable”; Guardianship and Administration Act 1990 (WA), s 1102J; Guardianship and Administration Act 1986 (Vic),
s 36(1) “incapable”; Guardianship and Administration Act 1995 (Tas), s 36 “incapable”; Adult Guardianship Act 1998 (NT), has
very limited application referring only to those already subject to a guardianship order.
17
Mental Health Act 2007 (NSW); Mental Health Act 1986 (Vic); Mental Health Act 2009 (SA); Mental Health Act 2000 (Qld);
Mental Health Act 1996 (WA); Mental Health Act 1996 (Tas); Mental Health and Related Services Act 2012 (NT); Mental
Health (Treatment and Care) Act 1994 (ACT).
18
Mental Health (Treatment and Care) Act 1994 (ACT), s 3; Mental Health and Related Services Act 2012 (NT), s 6; Mental
Health Act 1996 (Tas), s 4.
19
Mental Health Act 1996 (WA), s 4.
Eagle and Ryan
(2012) 86 ALJ 685688
Erroneous use of mental health legislation
The mental health legislation provides protection against liability for detaining someone against their
will in a defined set of circumstances. However, there are some cases that highlight the difficulties
encountered when the detention of a person, purportedly under the mental health legislation, is found
to fall outside the terms of the legislative framework.
In Watson v Marshall (1971) 124 CLR 621, Walsh J held that a man had been falsely imprisoned
by a police officer when transported against his will to a psychiatric hospital purportedly pursuant to
the Victorian mental health legislation. It was found in that case, that the documents completed did not
authorise the conveyance of a person to a psychiatric unit against their will. Walsh J observed that a
restraint imposed upon a person amounted to an imprisonment of him and that “the defendant to
escape liability, must show that there was, for what he did, a legal justification either at common law
or by statute” (at 626).
There is occasionally pressure on medical practitioners, and in particular psychiatrists to use the
powers in the mental health legislation to detain patients in hospital who are not co-operating. In the
English Court of Appeal case, St George’s Healthcare NHS Trust v S; R v Collins; Ex parte S [1999]
Fam 26, a 36-week pregnant veterinary nurse was a patient of a local National Health Service practice
in London and was diagnosed with pre-eclampsia. The condition was life-threatening and she refused
to consent to the urgent treatment recommended which included delivery of her baby. She was
detained “for assessment” under the Mental Health Act 1983 (UK) by a social worker authorised to
invoke the Act. She was then transferred to hospital against her will, purportedly under the Act, where
the recommended medical treatment including a caesarean section, was carried out. The Court of
Appeal held that the detention was unlawful and the medical treatment amounted to trespass. The
court observed (at 51):
Even when used by well intentioned individuals for what they believe to be genuine and powerful
reasons, perhaps shared by a large section of the community, unless the individual case falls within the
prescribed conditions the Act cannot be used to justify detention for mental disorder.
It was also noted: “The Act cannot be deployed to achieve the detention of an individual against her
will merely because her thinking process is unusual” (at 51). In determining the validity of the use of
the Act, the court noted that in order to detain a person for a mental disorder, the person who has
conducted the assessment that is relied on must believe that “the patient is suffering from a mental
disorder which warrants detention” under the legislation, and that the assessor “is entitled to be
wrong” (at 55).
The court found that at the time the Act was deployed, those involved in the decision to admit the
patient did not do so in the belief that she had a mental disorder warranting detention (at 56). This case
serves to reinforce perhaps an obvious point that to invoke the mental health legislation we must at
least be able to form an opinion that a person is mentally ill.
20
Emergency treatment under statute and the common law
In the scenarios under discussion, the objecting patient may need treatment which is urgent and
potentially life saving or will prevent serious damage or suffering, pain or distress. In this section, we
look at common law and statutory provisions that may apply in emergency situations. Most legislative
regimes provide that urgent treatment may be performed on patients who lack capacity without
substituted consent. In New South Wales, for example, urgent treatment includes treatment that will
save life, prevent serious damage and, except in the case of special treatment, prevent suffering, pain
or distress.
21
However, where a patient is able to communicate, and incapacity is only suspected, the
guardianship legislation does not provide assistance.
20
A failure to form such an opinion would possibly give rise to liability, despite the protection of provisions such as Mental
Health Act 2007 (NSW), s 191, which will not operate where there is a lack of good faith.
21
Guardianship Act 1987 (NSW), s 37(1), see also similar provisions in Guardianship and Administration Act 1995 (Tas), s 40;
Guardianship and Administration Act 1993 (SA); Consent to Medical Treatment and Palliative Care Act 1995 (SA);
Guardianship and Administration Act 1986 (Vic), s 42A; Guardianship and Administration Act 2000 (Qld), s 63; Guardianship
and Administration Act 1990 (WA), s 1102I; Emergency Medical Operations Act 1973 (NT), s 3(1) (surgery only).
Mind the gap: The potentially incapable patient who objects to assessment
(2012) 86 ALJ 685 689
A consideration of the common law emergency provisions does not provide an obvious solution to
this problem either. Lord Goff’s enunciation of the principle of necessity in the sterilisation case, Re F
[1990] 2 AC 1, is generally cited as the authority on the limits to the lawful treatment of an adult who
is incompetent or unable to communicate.
22
In that case, Lord Goff stated that for the principle of
necessity to apply there must be “a necessity to act when it is not practicable to communicate with the
assisted person [and] the action taken must be such as a reasonable person would in all the
circumstances take, acting in the best interests of the assisted person” (at 25).
23
Lord Brandon made
the observation that there were instances where adults cannot consent or have refused consent due to,
for instance, unconsciousness or a mental disability that impaired their understanding. He noted that
the “common law would be seriously defective if it failed to provide a solution to the problem created
by such inability to consent” (at 4). Lord Brandon continued by stating that the common law does not
so fail, and a doctor may lawfully treat such a patient if it is in the “best interests” of such patients but
only “in order either to save their lives, or to ensure improvement or prevent deterioration in their
physical or mental health” (at 4). This frequently cited passage refers to both the mentally and
physically ill. It refers to treatment, rather than restraint or detention. It seems to specifically refer to a
situation in which a person is unable to consent or incapable of consenting. Arguably the common law
might be just as defective if the same principles were not applied where a person’s ability to consent
was in question and treatment may not be safely delayed.
THE LEGAL DILEMMA OF THE OBJECTING PATIENT WHO REQUIRES A CAPACITY
ASSESSMENT
In our consideration of the law so far there is no clear legal authority under the current guardianship
regimes to detain an objecting patient suspected of lacking capacity for the purpose of determining
whether they have capacity to refuse treatment. Under the common law, the “principle of necessity”,
as described in Re F, only applies to the treatment of a patient lacking capacity or unable to consent
where the treatment is in the patient’s “best interests” and necessary to save life, improve or prevent
deterioration of the person’s health. This issue was identified by Stewart and Biegler, who felt that the
imposition of a statutory defence of “uncertainty” was needed. This defence would “recognise that it
will be appropriate to treat in cases where there are bona fide reasons for doubting the capacity of the
patient, at least in the interim period before a proper assessment of capacity can take place”.
24
Grubb acknowledged the difficulty faced by the doctor who “acts notwithstanding a competent
patient’s refusal, believing it to be invalid” and suggested that at common law, whilst there appeared
to be “no defence since the patient’s refusal is valid” that it is “likely that in England the judges would
fashion a defence of mistake, probably reasonable mistake, if called upon to do so”.
25
In making that
comment, Grubb cited Re MB (Medical Treatment) [1997] 2 FCR 541; [1997] EWCA Civ 3093 at
[33], where Butler-Sloss LJ stated: “The only situation in which it is lawful for the doctors to
intervene is if it is believed that the patient lacks the capacity to decide.”
The approach of reasonable mistake is not entirely helpful in our situation. The comment made by
Grubb seemed to refer to a situation where some assessment of capacity has been made, but was
possibly wrong, rather than a situation where it is believed that a patient may lack capacity. In
England, s 5 of the Mental Capacity Act 2005 (UK) has given legislative force to a reasonable mistake
defence. Under that Act, if a person takes “reasonable steps to establish” whether a patient lacks
22
See Grubb A (ed), Principles of Medical Law (2nd ed, OUP, Oxford, 2004) pp 255-256.
23
The “principle of necessity” was recognised by the majority of the High Court in Department of Health & Community
Services v JWB (1992) 175 CLR 218.
24
Stewart C and Biegler P, “A Primer on the Law of Competence to Refuse Medical Treatment” (2004) 78 ALJ 325 at 340.
25
Grubb A, “Consent to Treatment: The Competent Patient” in Kennedy I and Grubb A (eds), Principles of Medical Law (OUP,
London, 1998) pp 137-138
Eagle and Ryan
(2012) 86 ALJ 685690
capacity and “reasonably believes” that the patient “lacks capacity” and it will be in the patient’s “best
interests for the act to be done” then the act is not unlawful.
26
COMMON LAW JUSTIFICATION FOR DETENTION
In the situation where a patient objects to any assessment, but may lack capacity and be at risk of
serious harm without treatment, the guardianship legislation and the mental health legislation do not
provide a clear mechanism for detaining the person to assess for capacity or the presence of mental
illness. The established common law “principle of necessity” also fails to provide a clear solution to
this difficult situation. We return to the common law for guidance on the lawfulness of detaining an
objecting patient, briefly, for the purposes of assessment of his or her capacity or psychiatric status.
Authorised restraint at common law
It would appear that there are some limited circumstances in which restrictions may be placed on a
person’s autonomy at common law. Under the common law, in cases involving mentally disturbed
persons, the courts have recognised a jurisdiction to allow the “otherwise unlawful restraint” of a
person who may be a danger to themselves and others for the purpose of an examination “by proper
persons” or “until the regular and ordinary means can be resorted to”.
27
However, this would apply
only in circumstances of “obvious necessity” and “could not be extended to ordinary cases”.
In R v Pinder; Re Greenwood (1855) 24 LJQB 148,
28
a case involving a writ of habeas corpus,
the court found that a certificate purporting to detain a “lunatic” was defective. Coleridge J stated (at
152):
I still feel that in such cases when … it appears clear that the party confined is in such a state of mind
that to set him at large would be dangerous either to the public or himself, it becomes a duty and is
within the common law jurisdiction of the Court, or a member of it, to restrain him from his liberty,
until the regular and ordinary means can be resorted to.
In Re Hawke (1923) 40 WN (NSW) 58, an action for false imprisonment of a person felt to be
mentally ill, Harvey J stated (at 59): “[w]hether the detention was lawful or not must depend upon the
extent to which the patient submitted to it or the overriding necessity for the protection of himself or
others”. Harvey J goes on to say that “[t]he limit of the common law right to exercise restraint is laid
down in Scott v Wakem … and Anderdon v Burrows”.
In Watson, the High Court also considered the limits of the common law to justify a restraint and
referred to the English cases of Scott v Wakem (1862) 3 F & F 328; 176 ER 147 and Anderdon v
Burrows (1830) 4 Car & P 210; 172 ER 674. In those cases, the lawfulness of an act of restraint
depended on the “overriding necessity for the protection of self or others”.
29
Scott was a case that did
not involve the transport and treatment of a person needing psychiatric treatment. In that case, the
plaintiff threatened to kill his wife in the grip of delirium tremens, which is usually regarded as a
general medical rather than a psychiatric condition. A “medical man” restrained him. It was noted in
that case, that if at the time of the original restraint the person was likely to do mischief to any one,
the defendant would be justified in putting a restraint upon him, “not merely at the moment of the
original danger, but until there was reasonable ground to believe that the danger was over” (Scott at
333; 149).
There is no explicit discussion of the person’s capacity in these cases. However, the facts of the
cases suggest that capacity may have been compromised, either because the person was mentally ill or
delirious. The cases are arguably applicable in our scenario and may provide a lawful basis at common
law for an act of restraint. The act of restraint would be limited to circumstances of suspected
26
Lock D and Munby J, “The Test for Capacity” in Grubb A, Laing J, McHale J and Kennedy I (eds), Principles of Medical
Law (3rd ed, OUP, Oxford, 2010) p 490.
27
See Antunovic v Dawson [2010] VC 377 at [142]-[143] (citing numerous authorities including: R v Turlington (1761) 97 ER
741; Re Shuttleworth [1846] 9 QB 651; R v Pinder; In re Greenwood (1855) 24 LJQB 148).
28
Cited with approval in Antunovic v Dawson [2010] VSC 377 at [142]-[143].
29
Watson v Marshall (1971) 124 CLR 621 at 627.
Mind the gap: The potentially incapable patient who objects to assessment
(2012) 86 ALJ 685 691
incapacity, where there is necessity for the protection of self or others and only for as long as the
necessity prevailed or until other means of consent could be resorted to. This interpretation is
consistent with the basis for the “principle of necessity” as set out by Lord Brandon in Re F (cited
above) when he stated “the common law would be seriously defective if it failed to provide a solution
to the problem created by such inability to consent”. The common law would be just as defective if
there was no remedy when a person’s ability to consent is in question and treatment may not be safely
delayed.
EXISTENCE OF A DUTY TO DETAIN A PATIENT TO ASSESS CAPACITY OR MENTAL
ILLNESS
Duty of care
We have so far considered the legal issues surrounding the power or ability of a health care
practitioner to legally restrain an objecting, potentially incapable, patient. What is the duty of the
health care practitioner to an objecting patient where there are grounds to suspect that the person may
lack capacity and harm may befall them without treatment?
The duty of care owed by a medical practitioner to his or her patient is well established at
common law.
30
The civil liability legislation in each of the States and Territories has determined the
standard of care to be that set out in Bolam v Friern Hospital Management Committee [1957] 1 WLR
582, being to act in a manner that is widely accepted in Australia by peer professional opinion as
competent professional practice.
31
This applies in all circumstances except where the court finds the
opinion is irrational
32
or unreasonable.
33
The standard does not apply with respect to the duty to warn
of a risk of death or injury as a result of the provision of professional service.
34
Duty to provide advice
In Wang v Central Sydney Area Health Service [2000] NSWSC 515, the Supreme Court recognised a
duty to provide appropriate advice to a person who elected to leave the hospital without assessment
and treatment. In 1988, a 30-year-old man, Mr Wang, walked into the waiting room of an inner
Sydney emergency department following an assault which had caused a head injury. Approximately
one hour later, his friends told the triage nurse that they felt Mr Wang needed to be seen by a doctor.
They were told that Mr Wang had to wait, and they asked if he could seek treatment elsewhere. The
nurse informed them that they were free to do so. Mr Wang’s friend recalled the nurse saying that “we
can do whatever we want to” (at [21]). Mr Wang subsequently left with his friends and suffered severe
brain damage as a result of an intracranial bleed from a fractured skull. The court found the Area
Health Service negligent in failing to provide appropriate advice to the young man and his friends
when they decided to leave the hospital (at [77]). Capacity did not appear to be an issue at all in the
proceedings. However, expert evidence was given in the case that Mr Wang may not have had
capacity to make a decision about his care (at [66]).
Duty to assess capacity
In some decisions, the courts have suggested that health care practitioners have an obligation to
consider a patient’s capacity when confronted with a refusal of consent. As previously discussed,
capacity is presumed. However, the presumption is rebuttable. Where there are potentially serious
30
Devereux JA, Australian Medical Law. (3rd ed, Routledge-Cavendish, London, 2007) p 314.
31
Civil Liability Act 2002 (NSW), s 5O(1); Civil Liability Act 2002 (WA), s 5PB(1); Civil Liability Act 2002 (Tas), s 22(1);
Civil Liability Act 2003 (Qld), s 22(1); Civil Liability Act 1936 (SA), s 41(1); Wrongs Act 1958 (Vic). The standard of care in the
ACT is different, see Civil Law (Wrongs) Act 2002 (ACT), s 42: “a reasonable person in the Defendant’s position who was in
possession of all information the Defendant either had or ought reasonably to have had at the time of the incident”.
32
Civil Liability Act 2002 (NSW), s 5O(2); Civil Liability Act 2002 (Tas), s 22(2); Civil Liability Act 2003 (Qld), s 22(2); Civil
Liability Act 1936 (SA), s 41(2).
33
Civil Liability Act 2002 (NSW), s 5P.
34
Civil Liability Act 2002 (WA), s 5PB(4).
Eagle and Ryan
(2012) 86 ALJ 685692
consequences following from a refusal of consent and uncertainty surrounding the capacity of a
patient, it would appear that the uncertainty must be resolved by an assessment of capacity.
Lord Donaldson in Re T stated that “doctors faced with a refusal of consent have to give very
careful and detailed consideration to the patient’s capacity to decide at the time when the decision was
made”.
35
However, the fact that the decision to refuse treatment is contrary to what would be
expected, is only relevant where “there are other reasons for doubting his capacity to decide. The
nature of his choice or the terms in which it is expressed may then tip the balance”.
36
In Re B [2002] 2 All ER 449 (involving a young woman seeking withdrawal of life support),
Dame Butler-Sloss P held that where there was doubt about the mental capacity of a patient, the doubt
should be “resolved as soon as possible” and that whilst the issue of capacity was being resolved, the
patient should be cared for “in accordance with the judgment of the doctors as to the patient’s best
interests” (at [100]). Dame Butler-Sloss referred with approval to guidelines set out by the English
Court of Appeal in St George’s Healthcare,
37
where the court acknowledged that the case highlighted
“major problems” faced by health care practitioners when an objecting patient requiring urgent
invasive treatment, such as a caesarean, presented to hospital. In response, guidelines were developed
which might be generally applicable to objecting patients presenting to hospital and found to be
requiring urgent treatment. These include:
• “the authority should identify as soon as possible whether there is concern about a patient’s
competence to consent to or refuse treatment”;
• “[i]f the capacity of the patient is seriously in doubt it should be assessed as a matter of priority”;
• “if following this assessment there remains a serious doubt about the patient’s competence, and
the seriousness or complexity of the issues in the particular case may require the involvement of
the court, the psychiatrist should further consider whether the patient is incapable by reason of
mental disorder of managing her property or affairs … The authority should seek legal advice as
quickly as possible”.
38
This would appear to impose a duty to assess capacity in certain circumstances and suggests, in
the meantime, that “doctors” act in the “patient’s best interests”. Arguably this may include
temporarily restraining a person whilst the issue of capacity is resolved.
Skegg, in his recent article, commented on Dame Butler-Sloss P’s judgment in Re B. He stated
that in circumstances of doubt about the mental capacity of a patient:
rather than suggest that clinicians rely on the presumption of competence … Butler Sloss P made it
clear that a patient’s life support (or other treatment) should continue until the question of the patient’s
capacity to refuse treatment was determined. In effect, Butler Sloss P was foreshadowing the provision
of a new common law justification for treatment without consent, to apply in some circumstances where
there is uncertainty whether or not the patient is competent.
39
This would be in line with a commonsense approach. The status quo is maintained and physical harm
or loss of life avoided, until doubt regarding capacity can be resolved.
In Australian Capital Territory v JT (2009) ACTLR 68, which involved a fasting delusional
patient with schizophrenia who was found to lack capacity, Higgins CJ commented (at [38]):
even in the case of a competent adult refusing treatment, medical carers are not entitled to respect those
wishes and may be under a duty not to if there is reason to suppose that the capacity of the patient to
make a reasoned decision has been diminished by illness or medication, false assumptions,
misinformation or undue influence … Thus the use of forcible restraint to achieve a therapeutic benefit
or avert a therapeutic disaster would be the duty of medical carers to apply not an option they can
simply choose to avoid out of distaste for it.
35
Re T [1992] 4 All ER 649; [1992] EWCA Civ 18 at [28].
36
Re T [1992] 4 All ER 649; [1992] EWCA Civ 18 at [30].
37
St George’s Healthcare NHS Trust v S; R v Collins; Ex parte S [1999] Fam 26 at 63.
38
St George’s Healthcare NHS Trust v S; R v Collins; Ex parte S [1999] Fam 26 at 63-64.
39
Skegg, n 10 at 174.
Mind the gap: The potentially incapable patient who objects to assessment
(2012) 86 ALJ 685 693
The comment was made obiter dictum. Its meaning is somewhat unclear in that there is an
inconsistency, on the face of it, in suggesting medical carers are not entitled to respect the wishes of a
“competent adult” where there is “reason to suppose the capacity of the patient … has been
diminished by illness or medication”.
40
Perhaps, though, it could be interpreted to mean that where
there is reason to suspect that the capacity of a patient has been diminished, there is a duty to use
“forcible restraint” if necessary to avoid a therapeutic disaster.
Common law duty to detain and duty to exercise a statutory power to detain
There are several cases involving psychiatric patients that discuss the existence of a duty to exercise a
statutory power to detain for assessment and a common law duty to detain.
In the New Zealand High Court in Ellis v Counties Manukau District Health Board [2006] NZHC
826, a statement of claim was successfully struck out on the basis that there was no common law duty
of care to detain a psychiatric patient (who was voluntary) for the purposes of assessment or a duty to
invoke the mental health legislation. Potter J makes some observations on the imposition of a common
law duty of care. In particular, he states that the “factor of control is very important”. Circumstances
in which the ability to control has been found to exist include where the patient is an inpatient under
a compulsory treatment order, even where the patient has been out of the hospital on leave. However,
the courts have failed to recognise a positive duty to detain a person without this ability to assert
control, even when there may have been negligence in losing that ability. Potter J noted that “the duty
of care contended for – to detain against the patient’s express wishes – could cut across the duties of
the responsible clinician to the mental health patient, both as a health professional and in terms of the
Act” (at [171]).
The New South Wales Court of Appeal and the Australian High Court have both declined to
impose a common law duty to detain a person in circumstances which would arguably justify
detention under the mental health legislation.
In Hunter Area Health Service v Presland (2005) 63 NSWLR 22 the Court of Appeal
acknowledged a duty on the part of health care practitioners to take reasonable steps to prevent a
patient harming others, but observed that “absent the availability under statute of power to detain the
patient what can reasonably be done to achieve this object may be limited to advising the acceptance
of confinement or medication or other forms of care” (at [217]). However, the reasoning of the
majority noted that a common law duty to invoke the mental health legislation would be inappropriate
in that it would distort the impartiality of the exercise of discretion and promote a bias towards
detention which was clearly inconsistent with the objects of the legislation (at [388]).
In Stuart v Kirkland-Veenstra (2009) 237 CLR 215, the High Court had the opportunity to
consider an unfortunate case involving police officers who did not detain a person after an evident
attempt at suicide, and the person went on to complete suicide. Gummow, Hayne and Heydon JJ
observed (at [88]) that “personal autonomy is a value that informs much of the common law. It is a
value that is reflected in the law of negligence. The co-existence of a knowledge of a risk of harm and
power to avert or minimise that harm does not, without more, give rise to a duty of care at common
law.” It was acknowledged that there was no general duty of care to rescue at common law and no
duty to prevent self-harm, even where the self-harm was foreseeable. Their Honours observed that at
common law, “it was exceptional to find a duty to control another’s actions to prevent harm to
strangers” (at [88]). It was further said on the point that “when a duty to control the actions of another
is found it will usually be because the person to be controlled is not autonomous” (at [90]). An
example provided by the court of a scenario in which a person would lack that autonomy was in the
relationship between a prisoner and his or her gaoler. The court further noted that suicide was not
necessarily indicative of mental illness (or associated with a disturbance of the balance of the mind or
40
Higgins CJ’s reference to capacity being diminished by “false assumptions, misinformation or undue influence” is more
understandable and seems to resonate with the concept of “vulnerable adults” frequently referred to in the English courts (see,
eg Re SA (Vulnerable adult with capacity: marriage) [2005] EWHC 2942 (Fam); DL v A Local Authority [2012] EWCA Civ
253).
Eagle and Ryan
(2012) 86 ALJ 685694
unsound mind) and that therefore, even knowing the existence of the attempt, it was not possible to
conclude that the person lacked capacity (at [90]-[99]).
In the recent case Crowley v Commonwealth [2011] ACTSC 89 at [891]-[921], Penfold J
considered the decisions in Stuart and Hunter Area Health Service, and felt that the cases were not
authority for the proposition that a common law duty of care could not co-exist with a duty of care
arising out of a statutory power. Penfold J noted that such a duty of care would not necessarily
interfere with the common law principle of coherence. It was found that ACT Mental Health breached
its duty of care to Crowley by failing to re-assess him and facilitate his admission to hospital.
It would appear that the existence of a duty to detain a person objecting to treatment or
assessment, without evidence of incapacity, or unique circumstances of control, may be unlikely given
the High Court’s decision in Stuart. How this co-exists with a duty to assess capacity or assess for
mental illness (such as in Crowley) is challenging.
CONCLUSION
Several English authorities
41
have suggested that when capacity is in question, there is an obligation to
assess capacity as quickly as possible and if necessary with the assistance of the court. The assessment
of capacity generally involves the presence of a medical practitioner and is not necessarily a
straightforward matter.
42
However, it is unclear to what extent a health care practitioner may or should
go to assess the capacity of an objecting patient including, for instance, whether the patient could or
should be detained for that assessment. The presence of any duty would be limited by the extent of the
service’s resources.
43
It could be argued that detaining someone briefly for a capacity assessment
might give rise to a potential conflict with the presumption of capacity and possibly abrogate the right
to personal autonomy.
However, we would argue, similarly to Skegg, that if there is a reason to doubt a patient’s
capacity and a failure to act on that doubt might imperil the patient’s life, then to consider the
presumption of capacity as impenetrable to performing a capacity assessment would be nonsensical. In
support of this view are the comments by Butler-Sloss P that suggested where there is doubt about the
capacity of a patient, doctors must resolve that doubt as quickly as possible and in the meantime care
for the patient in their best interests. If this is accepted it is possible to make a similar argument to
briefly detain a person to clarify the presence or absence of mental illness where there is reason to
suspect that the person should be detained under mental health legislation and in the presence of a
significant and potentially imminent risk.
The courts rightly place a high value on personal autonomy. However, true autonomy is lost
where capacity is lacking and if this is not recognised individuals may be deprived of necessary
treatment. In cases involving significant risk there is a suggestion that the duty is to clarify the
situation and allow preservation of life to briefly take precedence over personal autonomy.
44
There is
a possible reluctance to expressly acknowledge a power or justification for restraint or detention of the
potentially incapable patient. Whilst less restrictive options are favoured by patients and health care
practitioners alike, there are unfortunately circumstances in which detaining a patient, albeit briefly, is
the only option in order to clarify their ability to make that decision and avoid an adverse outcome.
In light of the above, when faced with a patient who objects to assessment or treatment, health
care practitioners should give some consideration to their capacity to consent and to the possible
presence of mental illness. When a patient refuses assessment, and attempts to leave the hospital, the
person’s decision has to be respected:
41
See, eg Re T [1992] 4 All ER 649; Re B [2002] 2 All ER 449.
42
Re B [2002] 2 All ER 449 at 459; Re MB [1997] 2 FCR 541 at 553.
43
Civil Liability Act 2002 (NSW), s 42; Civil Liability Act 2002 (WA), s 5W, Civil Liability Act 2002 (Tas), s 38, Civil Liability
Act 2003 (Qld), s 35; Wrongs Act 1958 (Vic), s 83; Wang v Central Sydney Area Health Service [2000] NSWSC 515 at [77];
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1.
44
See Re T [1992] 4 All ER 649 at 661 per Lord Donaldson: “in the case of doubt, that doubt falls to be resolved in favour of
preservation of life”; see also Hunter & New England Area Health Service v A (2009) 74 NSWLR 88 at [5].
Mind the gap: The potentially incapable patient who objects to assessment
(2012) 86 ALJ 685 695
(a) if there are no factors that might suggest he or she lacks capacity or suffers from a mental illness;
or
(b) there is no foreseeable risk of serious harm to self or others from what is known of his injury or
illness.
However, appropriate advice should at least be offered to the person. If, on the other hand, there
is: (a) a known factor, such as a head injury or intoxication which may give rise to a lack of capacity;
or (b) recent behaviour such as an overdose which may be suggestive of the current presence of
mental illness; or (c) a decision to object to assessment or treatment that is, in the current context, so
bizarre as to lead a reasonable person to suspect that his or her capacity may be impaired; and (d) a
foreseeable risk of serious harm to that person or others; and (e) no less restrictive way of clarifying
the person’s capacity to refuse assessment or prevent the risk; there is possibly a limited power to
detain a person as long as necessary to prevent the risk or until the “regular and ordinary means” can
be resorted to. The regular and ordinary means might include an assessment for lack of capacity, or the
presence of mental illness, and if found to lack capacity, obtaining substituted consent under the
appropriate legislation or, where there is doubt, seeking direction from the appropriate tribunal or
court.
Health care practitioners would benefit from clarification regarding their power and obligations
when dealing with an unco-operative patient. It may also be appropriate for some protection against
liability to be provided to health care practitioners where the temporary restraint or detention, in good
faith, of a patient is necessary for the purposes of establishing capacity or the absence of mental
illness, in circumstances where this is in doubt and the negative consequences of refusing treatment
are significant.
45
45
Interestingly the Mental Health Bill 2011 (WA), cl 32, includes a provision allowing a person in charge of the voluntary
in-patient’s ward who reasonably suspects that the voluntary in-patient is in need of an involuntary treatment order to detain the
person briefly to allow a psychiatric assessment to take place.
Eagle and Ryan
(2012) 86 ALJ 685696