Detaining and Treating an Adult Patient with Delirium

The above hypothetical example is a surprisingly common occurrence for hospital doctors. This article looks at the medico-legal concepts that provide a doctor with legal authority to detain and treat an incompetent patient, i.e. a patient without the capacity to provide consent. Serious medico-legal consequences can flow from a decision to treat and/or detain a patient without appropriate consent including complaints, claims, disciplinary action or even criminal charges. An example of this is found in the Report of Investigation into the Complaint of Mrs N against Hospital Y by the Tasmanian Health Complaints Commissioner, July 2011,¹ where the Commissioner concluded that “the actions of forcibly restraining and injecting (the patient) against her will were unlawful and unjustified”. This finding opened the way for potential professional, criminal and civil sanctions to be made against those involved.

What legal power allows such treatment?

Common Law

Common Law is a judge-made law developed through legal precedent. It does not allow an adult to authorise treatment for another adult in any circumstances. Treatment can be provided in cases of “emergency or necessity”.²

• Assault, battery and false imprisonment Under Common Law, the provision of medical treatment to a patient is an assault unless it is authorised, justified or excused by law.³ Without a patient’s consent a medical practitioner may be found liable in damages for the offenses of assault, battery and false imprisonment, or the equivalent criminal charge.

• Doctrine of necessity The Common Law doctrine of necessity provides a defence to such a claim and involves establishing that where a patient was unable to consent, the treatment was reasonably and proportionally necessary for the preservation or protection of life. The treatment must be in the best interests of the patient, and mere convenience and suitability is not sufficient.

• Duty of care “Duty of care” as a medical practitioner is a duty to take reasonable care to avoid acts or omissions which can reasonably be foreseen to injure your patient or those around them. Failing to act according to this duty may render a doctor liable for negligence. Where a patient is incompetent, treatment and detention against the patient’s wishes may be justified in circumstances of appropriate necessity.

Legislation

A variety of legislation has been developed to expand on circumstances where a patient may be treated without appropriate consent.

• Mental Health Legislation (MHL) Although the specific legislation will vary across jurisdictions, MHL provides authority for a doctor to detain and treat a patient involuntarily where there is a risk of serious harm to the patient or others because of an underlying mental illness or mental disorder. MHL will typically be relevant where non-organic causes of a confusional state are suspected, although joint consultation with mental health professionals should at least be considered in such circumstances. Such legislation will generally be inappropriate for the purpose of authorising emergency medical or surgical treatment of non-mental health related conditions. MHL may require specific examination by appropriately authorised doctors within strict timeframes. The use of sedation and restraints under MHL may be specifically regulated requiring appropriate compliance.

• Guardianship and other miscellaneous legislation (Guardianship Legislation)⁴ Although varying by jurisdiction, Guardianship Legislation generally provides authority for a “hierarchy” of substitute decision makers when a patient is incompetent. This may involve guardians formally appointed by tribunal or the patient, or persons whose relationship with the patient allows them to act as a substitute decision maker. A typical hierarchy will be: an advanced care directive > appointed guardian > elected guardian > person responsible (a hierarchical list of relatives, carers and friends who can act as substitute decision makers). In some jurisdictions there are a variety of “special” treatments that require consent from specific parties, such as sterilisation, abortion, psychosurgery, HIV testing and some experimental treatments. In complex situations, Members should seek specific advice from MDA National.In most jurisdictions, Guardianship legislation also provides guidance regarding treating patients without appropriate consent. Typically, treatment will be for the purpose of saving a patient’s life; prevention of serious damage to the patient; or to prevent the patient from suffering significant pain or distress.

Other matters to consider

General management

• Ensure appropriate examination, investigation and treatment of the underlying cause of the delirium.
• Institute simple interventions such as orientation, supervision, family involvement, appropriate communication and environmental considerations.
• Carefully document the findings with an appropriate plan – this may include the need for pharmacological or physical intervention.
• Recognise, understand and manage the potential serious risks posed to the patient’s health (up to and including death) by the use of pharmacological and physical intervention.
• Institute appropriately qualified and frequent supervision or observation of the patient. Given the additional involuntary risks posed to patients by the use of pharmacological and physical interventions, it is critical that they are managed to an appropriate standard of care.

Physical restraints

Restraint techniques encompass:

• physical, e.g. a team of people holding a patient
• mechanical, e.g. restraint equipment specifically designed for this purpose
• environmental, e.g. restricted access to exits, specifically designed chairs.

Most examples of health policy recognise the use of physical restraints, but only as a measure of last resort where no alternative has been effective in maintaining essential clinical treatment and/or preventing harm to the patient or others. It will generally require the authority of a doctor. Practitioners should be mindful that a decision to apply pharmacological and physical restraints to a patient carries with it a significant legal responsibility. If not appropriately managed, it might result in serious medico-legal consequences such as complaints, claims or criminal charges relating to false imprisonment, unconsented treatment and/or assault.

Pharmacological management

Although it is beyond the scope of this article to discuss the forms of pharmacological treatments available, readers should note that the aim of treatment is to reduce patient distress and risk of harm to self/others, rather than sedation of the patient per se. As sedation places the patient at increased risk of adverse events, the doctor’s plan should outline appropriate monitoring and observation.

Appropriate Authority for Treating an Adult Patient Without Capacity to Consent.

Summary points

• Seek senior assistance where possible.
• Where time and clinical situation permits, obtain and document consent from an alternate decision maker for incompetent patients. This information can often be found in their clinical notes, by calling family members or carers, or by asking the Office of the Public Guardian. A Guardianship application may be required for ongoing matters where there is no suitable alternate decision maker.
• Consider and implement the least invasive management strategies first.
• Sedation and restraint must be reasonable interventions in the circumstances – this does not include administrative or staffing convenience.
• Carefully document why such intervention is required, noting specific patient behaviours.
• Document a plan for appropriate supervision and observation of the patient.
• Seek advice from MDA National’s Medico-legal Advisory Service.

Dr Julian Walter, Medico-legal Adviser, MDA National
Dr Maria Li, MDA National Member and GP

1. http://www.healthcomplaints.tas.gov.au/__data/assets/pdf_file/0010/175699/110801_Mrs_N_De-identified.pdf
2. Rogers v Whitaker (1992) 175 CLR 479, at 489 [14]
3. Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 at 310