See Part 2 here;
See Part 3 here;
See Part 4 here.
A number of people have asked me to comment on this story – Caroline Tang, ‘Drunk punched policeman in LGH in self-defence: magistrate’ The Examiner (Online) 2 October 2015. The gist of the story is that the accused had consumed a considerable amount of alcohol during the course of an evening. At some time he had been knocked unconscious and paramedics were called.
- Whilst being transported to hospital he kicked the paramedic in the face and threatened to kill him and his family. He also threatened to charge the paramedic with assault if he touched him.
- At 4.13am he arrived at hospital. At 4.50am he had a blood alcohol concentration of 0.2 or 4 times the legal driving limit. The treating doctor ‘made the decision to sedate Morrison because he had a ‘‘duty of care’’ towards him and staff, while Morrison’s erratic conduct and evidence of head injuries led him to believe he might have had a bleed on the brain or skull fracture.’
- The ‘previously calm Morrison had expressed aggressively and loudly that he did not want an injection when he saw hospital staff approach him with a needle’.
- ‘Several persons’ attempted to restrain him; presumably one of those persons was the police officer who was struck ‘twice to the face’.
- The Magistrate found that Mr Morrison ‘acted in lawful self-defence when he punched and swore at a policeman who was helping to restrain him, because Launceston General Hospital staff injected him three times with a sedative after he exercised his right to refuse treatment.’
- Mr Morrison was convicted of assaulting the paramedic and fined $700.
These facts are taken entirely from the newspaper report. At the time of writing I have no access to the actual decision of the magistrate, a matter to which I will return in a minute. I will however address some issues raised via Facebook.
The first question is ‘Has this case set a dangerous precedent for paramedics?’ to which the answer, at least from a lawyer’s perspective, is ‘no it hasn’t’. A precedent (in legal terms) is a prior decision where a superior court – a court of appeal or the High Court of Australia – makes a ruling on the law that other lower courts have to follow. Magistrates courts sit at the bottom of the judicial hierarchy so a decision of a magistrate does not create a ‘precedent’ that any other court has to follow. Evidence of that can be found by looking at a legal database such as the Australian Legal Information Institution (or AustLII). AustLII provides access to all the decisions of the High Court and the state’s appeal courts, but very little from Magistrates. The database from the Tasmanian Magistrates Court contains only 8 decisions for 2015. Magistrate’s courts are the busiest courts dealing with many hundreds of cases a year. It would be impossible and unnecessary to report them all. Clearly someone decides which one’s say something interesting about the law and puts them up here, but it’s not all of them, it’s not even close to most of them. Whether this case will ever get ‘reported’ remains to be seen, but it hasn’t been put up there yet.
Magistrates’ decisions usually depend little on the law and most on the facts. The right of a person to refuse treatment if they are competent is not an issue. The issue in this case is the facts – was this person competent? Where his actions reasonable? We might all agree (from the facts in the newspaper) that the answers are ‘no’ but we don’t have the evidence. If the Magistrate found the answers to those questions were ‘yes’ then that is a ruling on facts, not law. A ruling on the facts is never a precedent. If the magistrate found that this accused, with a BAC of 0.2 was still competent, that in no way says whether the next defendant with that BAC will be competent. The facts of each case are necessarily different.
Another comment says
‘‘The injection into his body of an unknown drug was a gross violation of his personal security and integrity…” Its called medical treatment?!
It may indeed be called medical treatment but we don’t have to accept medical treatment. As the High Court said Rogers v Whitaker  HCA 58, :
… except in cases of emergency or necessity, all medical treatment is preceded by the patient’s choice to undergo it. In legal terms, the patient’s consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure which is intended’.
If this defendant was being approached by multiple people to receive an injection which he had ‘expressed aggressively and loudly that he did not want’ then that is a violation of personal integrity. The days when people had to accept treatment that they don’t want, even though it’s objectively in their best interests, are long gone. In Collins v Wilcock  1 WLR 1172 at 1177 Lord Justice Goff said:
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… “the least touching of another is anger is a battery.” The breadth of the principle reflects the fundamental nature of the interest so protected. As Blackstone wrote in his Commentaries, 17th ed. (1830), vol. 3, p. 120:
“the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man’s person being sacred, and no other having a right to meddle with it, in any the slightest manner.”
The effect is that everybody is protected not only against physical injury but against any from of physical molestation.
To administer the treatment in question there had to be a lawful justification and clearly consent was not available.
Another correspondent wrote:
Once upon a time I learnt that someone who is drunk is mentally not capable to make decisions on his own behalf and as an ambo you have the duty of care to administer necessary medication assuming his/her consent.
That does sound like what a lot of people have been taught, but it is wrong. The mere fact that a person is drunk does not mean they are unable to make decisions. In In Re MB the court (Lady Justice Butler-Sloss, Lord Justice Saville and Lord Justice Ward) said (at ):
A person lacks capacity if some impairment or disturbance of mental functioning renders the person unable to make a decision whether to consent to or to refuse treatment. That inability to make a decision will occur when
(a) the patient is unable to comprehend and retain the information which is material to the decision, especially as to the likely consequences of having or not having the treatment in question.
(b) the patient is unable to use the information and weigh it in the balance as part of the process of arriving at the decision.
The person’s intoxication may well affect a person’s capacity under both (a) and (b). A reduced capacity does not mean no capacity. The question is not whether a person is intoxicated but whether they are able to make the judgements required under (a) and (b) above.
If a person is not capable of making a decision, reasonable treatment may be given but you cannot assume consent. Rather the relevant law is that of necessity. In Re F  2 AC 1 Lord Goff said:
The basic requirements, applicable in these cases of necessity, that, to fall within the principle, not only (1) must there be a necessity to act when it is not practicable to communicate with the assisted person, but also (2) 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.
On this statement of principle, I wish to observe that officious intervention cannot be justified by the principle of necessity. So intervention cannot be justified when another more appropriate person is available and willing to act; nor can it be justified when it is contrary to the known wishes of the assisted person, to the extent that he is capable of rationally forming such a wish.
The problem with the notion of ‘assumed’ consent was that it provided for the legal fiction of assuming consent when people simply could not consent (eg children) or when people had clearly indicated they did not want the treatment.
The High Court did say ‘except in cases of emergency or necessity’ but the terms are synonymous in that context. There is not a separate doctrine of ’emergency’ and ‘necessity’ – there is only a doctrine of necessity (see In Re F  2 AC 1 and also my book Emergency Law (4th ed, Federation Press, 2013, pp 44-45). It follows that necessity is a defence but not when a person who is competent (see In Re MB above) has refused consent, even when others think the proposed treatment is indicated by their condition. As noted above, the fact that the person was intoxicated does not mean they could not make a decision. If they can, and they communicate their wishes (as Mr Morrison did) then necessity cannot be a justification.
So are ‘paramedics are supposed to ignore someone who doesn’t think they need treatment?’ “Ignore” may be too strong, but you can’t treat people who refuse. Paramedics may take some comfort from the decision of the NSW Supreme Court in Neal v NSW Ambulance  NSWCA 346. Mr Neal refused treatment but alleged the treating paramedics should have raised their concerns regarding a possible head injury with the police who could have detained Mr Neal and taken him to hospital. Mr Neal lost the case on the basis that even if he had been taken to hospital he would have refused treatment there so the eventual, poor outcome would have happened anyway. For the paramedics, the comfort comes from the finding in the court at first instance, and not challenged on appeal, that they could not treat Mr Neal as they did not have his consent.
Paramedics may also take comfort from the High Court’s decision in Stuart v Kirkland-Veenstra  HCA 15. In that case the widow of Mr Veenstra sued Victoria police for failing to take her husband into custody when they found him sitting in a car with a pipe from the exhaust into the driver’s compartment. The police considered that Mr Veenstra was not demonstrating evidence of a mental illness so they had no power to detain him under the Mental Health Act 1986 (Vic). The police were not liable even though Mr Veenstra took his own life later that day.
There is no duty to rescue and the law does not put saving life as the absolute priority or obligation of health professionals including paramedics. Their duty has to be limited by the patient’s wishes. So yes, if a person appears to be competent and refuses treatment that has to be honoured but that doesn’t mean people should be ignored. There may be obligations to warn people, or those with them of the paramedics concerns but treatment cannot be imposed.
Now here is the problem. In this case and in Mr Neal’s case there is a difficulty in assessing whether or not a person is competent (see Steer, B., ‘Paramedics, consent and refusal – are we competent?’ (2012) 5(1) Australasian Journal of Paramedicine Article 4) and whether or not their refusal is competent, informed and applies to the current condition (In Re T  EWCA Civ 18).
In In Re F  2 AC 1 Lord Bridge of Harwich said:
It would be intolerable for members of the medical, nursing and other professions devoted to the care of the sick that, in caring for those lacking the capacity to consent to treatment they should be put in the dilemma that, if they administer the treatment which they believe to be in the patient’s best interests, acting with due skill and care, they run the risk of being held guilty of trespass to the person, but if they withhold that treatment, they may be in breach of a duty of care owed to the patient.
But that ‘intolerable’ burden is the law – as Lord Justice Staughtan said in In Re T  EWCA Civ 18,  and :
The notion that consent or refusal of consent may not be a true consent or refusal presents a serious problem for doctors… The surgeon will be liable in damages if he operates when there is a valid refusal of consent, and liable in damages if he fails to operate in accordance with the principle of necessity when there was no valid decision by the patient…
Some will say that, when there is doubt whether an apparent refusal of consent is valid in circumstances of urgent necessity, the decision of a doctor acting in good faith ought to be conclusive… However, I cannot find authority that the decision of a doctor as to the existence or refusal of consent is sufficient protection, if the law subsequently decides otherwise. So the medical profession, in the future as in the past, must bear the responsibility unless it is possible to obtain a decision from the courts.
This ruling is equally applicable to paramedics, save that paramedics can be protected by statutory protection such as that found in the Ambulance Service Act 1982 (Tas) s 41.
Remember we don’t know the facts of this case – but what we might infer is that Mr Morrison was pretty insistent – in fact he ‘expressed aggressively and loudly that he did not want an injection’.
- A person is entitled to refuse consent.
- Without consent the treatment can only be justified by necessity, which does not allow treatment that is contrary to the known wishes of the person.
- If the person did not have the capacity to refuse consent then their apparent refusal is of no legal effect and treatment may be given.
- Determining whether or not a person is competent and has refused treatment is a difficult decision and under current law ‘good faith’ is not a defence (save for cases where statutes have been enacted to give a ‘good faith’ defence). It follows that a health professional can be liable for treating someone who has given a valid refusal, but negligent for failing to treat if the consent was not valid. That this is difficult, if not intolerable, is not in question, but making hard decisions is what being a professional is all about.
- If a person has refused treatment then they are entitled to use ‘reasonable force’ to resist an assault (Criminal Code 1924 (Tas) s 46).
Having said that I make no comment at all on whether or not the conduct reported in the paper was ‘reasonable’. It’s hard to imagine how a magistrate came to that conclusion but without access to the Magistrate’s reasons I can’t comment. The conduct against the paramedic was not reasonable hence the conviction.