See Part 1 here;
See Part 3 here;
See Part 4 here.
The reason for this part 2 is that I have now been provided with a copy of the Magistrate’s reasons which can be found here: Bonde v Morrison. (And I thank Jerildene Cane, the partner of the paramedic involved for providing those – see the comments section at the end of Part 1). The Magistrate’s reasons have also been posted on the Australian Legal Information Institute (AustLII) website – Bonde v Morrison  TASMC 9.
As we know the accused was found guilty of assaulting the paramedic. When originally approached by paramedics he had refused their aid and they had left him. Later he appeared to be unconscious and his friends called an ambulance. This time Mr Morrison agreed to be transported by rejected any physical contact. When he appeared to lapse into unconsciousness, the paramedic did a ‘eyelash flick’ to try to determine if he was in fact unconscious. He wasn’t and he reacted by kicking the paramedic and threatening him. Mr Morrison was then restrained by the treating paramedic and a friend that was accompanying him in the ambulance.
The magistrate found that Mr Morrison’s actions were voluntary and intentional and the paramedic’s actions were justified by his ‘duty’ (which, with respect, I would suggest is not the law. The real question was whether it feel within the doctrine of necessity ie it was not possible to communicate and he did only that which was reasonable). In any event the Magistrate also found that the actions by Mr Morrison were not in self-defence but ‘retaliating in anger’.
With respect to the police and the hospital the issue was more complex. The doctor said he decided to sedate the patient because of his ‘duty of care’ to other staff and to the patient. He said that it was Mr Morrison’s conduct at the hospital that led to the decision to administer sedation. The nursing notes did not however match the timing of the doctor’s evidence. The evidence supported the conclusion that Mr Morrison was calm in hospital until an attempt to administer the drugs was made, and that the doctor’s decision was based on the report he had received from the ambulance en route, and not from any assessment he made of the patient.
At - the Magistrate said:
The evidence discussed above strongly supports the conclusion that the decision was made administer sedation as a pre-emptive response to the history reported by the ambulance officers when they contacted the hospital to request security assistance. It supports the conclusion that the defendant was calm, until an attempt was made within minutes of him entering the hospital to inject him with a sedative drug. There is no evidence that he was given any explanation of that intended action. I reject the evidence of Dr Tyrrell who says that he made the decision to administer sedation because he observed the defendant acting aggressively and violently towards staff. I am satisfied that the defendant became aggressive and violent in the Emergency Department only after he realised that an attempt was to be made to inject him with an unknown drug, against his will…
There is no doubt that he expressed aggressively and loudly that he did not want the injection. He was then facing a situation in which he was being forcibly restrained and injected with a drug without his consent and without information as to the identify the drug. There is no evidence that he was provided with any information as to the purpose, nature or risks of the injection. In any event, he was entitled to refuse treatment. The injection into his body of an unknown drug was a gross violation of his personal security and integrity and, viewed objectively, justified the use of commensurate force in self-defence. The fact that several persons were attempting to restrain him for the purpose of leaving him vulnerable to the injection increased the level of force that would be considered reasonable in the circumstances.
We can see that the critical issue here was consent. Mr Morrison may have behaved violently and unreasonably in the ambulance but once in hospital he was calm. A doctor’s duty and authority to treat a person depends on either consent or some other lawful authority. Mr Morrison didn’t consent to the administration of the drugs because he was never asked. The doctor claimed to have seen Mr Morrison being violent but that was not the evidence of others including the nursing records. The doctor was taking pre-emptive action but in that case the decision was not a treatment taken in Mr Morrison’s best interests – it was not a medical treatment decision. The decision may well have been different if Mr Morrison was being violent in circumstances where the staff could not communicate with him or if he was not competent (as discussed in Part 1). But that was not the situation here.
Had Mr Morrison been asked he would, no doubt, have refused the sedation but given he was being calm, he presumably did not need it. As noted in Part 1 ‘all medical treatment is preceded by the patient’s choice to undergo it’ (emphasis added). If it was possible to communicate with Mr Morrison the doctrine of necessity could not apply to authorise treatment without consent.
The fundamental principle, plain and incontestable, is that every person’s body is inviolate. It has long been established that any touching of another person, however slight, may amount to a battery
It doesn’t matter whether the persons are trying to help or harm.
Mr Morrison’s actions were, in the Magistrate’s opinion, were reasonable because he found himself being restrained – assaulted – by multiple people seeking to inject him with a drug where he didn’t know what it was or what it was for and he had made it clear he didn’t want it. Many of us would think that if it was doctors, nurses and police that were trying to restrain us we should comply and that is a very ‘safe’ option, but the law says we don’t have to – you don’t have to stop and answer police questions, you don’t have to go with police when they ask and you don’t have to accept or receive treatment offered by medical staff and the law recognises that primacy. Honouring that – allowing people to make their own decisions if they can do so – is a fundamental legal tenet and more important than saving lives hence the right of people to refuse treatment even if that refusal will kill them. And the right of people to resist the application of unlawful force.