Patients behaving badly – balancing duty of care, trepass to the person, autonomy, police powers and legal rights
- Patients who are aggressive or violent are common in emergency departments (ED). Some want to discharge themselves before assessment and/or treatment has been completed or are uncooperative with tests or treatment. In a very small number, the behaviour could be due to an illness or injury. It is uncontested that ED staff owe a duty of care to these patients but what constitutes a breach of that duty is less clear.
- Sometimes ED staff restrain and sedate aggressive patients against their will in order for tests to rule out serious illness to be done or for time to elapse and diffuse the situation. Could such action, in certain circumstances, be trepass to the person or false imprisonment?
- Police can detain and transport people for a mental health assessment if they perceive them to have a mental illness and be at imminent risk of harm. This is often to an ED. Where do these powers end? Can a person refuse consent to a mental health assessment in these circumstances? If ED clinicians hold them involuntarily, could this be this false imprisonment?
- Where does ED staff right to a safe workplace come into this analysis.
- Join our expert panel to discuss these and more complex questions
Ian Freckelton is a Queen’s Counsel in full-time practice throughout Australia. He is a Professorial Fellow in Law and Psychiatry at the University of Melbourne, an Adjunct Professor of Forensic Medicine at Monash University, a judge of the Supreme Court of Nauru, and a member of Victoria’s Coronial Council and the Bar Council of Victoria. He is a past bi-national and Victorian President of ANZAPPL. Ian is the Editor of the Journal of Law and Medicine and the Founding Editor and Editor-at-Large of Psychiatry, Psychology and Law. In 2021 he was made an Officer of the Order of Australia for distinguished service to law and the legal profession, including to health, medicine, and technology.
Dr Rosalind McDougall is an ethicist in the School of Population and Global Health at the University of Melbourne. Rosalind’s research and teaching focus on the ethical challenges faced by health professionals. She has been involved in providing clinical ethics support in Melbourne hospitals since 2008.
I am an academic emergency physician at the Gold Coast Health Service District (Gold Coast University Hospital & Robina Emergency Departments)
My research focus is on encouraging collaborative clinical research and I am the principle or site investigator for several national and international studies. Both appropriateness of interventions as well as challenging the way we make decision are interests. Specifically, I like to be part of work that challenges dogma and where less is more.