Threats or giving information?

Today’s correspondent has

… a question regards to section 20 of the Mental Health Act in NSW. There has been a lot of discussion around voluntary patients and explaining to these patients about s20 prior to them making a decision about attending hospital.

The situation normally revolves around a patient who paramedics have decided is suffering from a mental illness and needs to be transported to hospital. Obviously, it is more beneficial for the patient if they have some autonomy in their care, so it is always preferable that the patient comes voluntarily to hospital rather than us placing them under the Act. In the lead up to this decision some paramedics have been explaining to the patient that they believe they need to attend hospital and that there is two options: a) be transported voluntarily or b) if they don’t attend voluntarily, be placed under the Mental Health Act and transported. They then ask the patient if they would like to attend voluntarily based on this information. I’ve always been under the impression that this is illegal as the patient is being coerced into making the decision to be voluntary with the threat of being made involuntary otherwise. Other Paramedics however argue that by providing the patient with the information about what will happen if they refuse consent, they are allowing the patient to make an informed decision.

Just wondering if you can please provide some clarification around this and what the potential consequences could be of coercing a patient into “voluntarily” coming to hospital.

In Rogers v Whitaker (1992) 175 CLR 479 Mason CJ, Brennan, Dawson, Toohey and McHugh JJ sitting as the High Court of Australia said:

… 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. But the choice is, in reality, meaningless unless it is made on the basis of relevant information and advice.

… The law should recognize that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it. This duty is subject to the therapeutic privilege.

That case was about information relating to a risk inherent in a procedure, but I cannot see that it does not apply here. The patient here is being asked to cooperate with treatment – transport to a mental health facility.  If the choice is presented as ‘you can come with me or not’ that is a very different to the choice ‘you can come with me voluntarily or I’ll force you’.  The fact that the paramedic believes he or she is entitled to detain the person, and intends to detain the person if they do not agree to travel with them, is surely a ‘material risk’ –  that they will be detained is a risk if they insist that they refuse to cooperate and it is a risk that they and a reasonable patient would probably attach significance too.

Detaining a patient does not necessarily require force, but it may do if it comes as a surprise. A patient who is told ‘you can choose to come with me, but if you don’t I’m going to exercise what I have been told is my authority under s 20 and force you’ at least knows what the issues are. The patient may confirm their decision – ‘I do not consent but if you tell me you are detaining me I will come with you, and I propose to sue you for false imprisonment’.  No force is required, no unlawful threats, but everyone knows where they stand.

To not tell the patient that you intend to detain them is to mislead them as to the choices they are actually making is more likely to lead to violence when the action of detention comes as a surprise.

The Code of Conduct for paramedics published by the Paramedicine Board says that good paramedic practice involves communication and working in partnership with patients. If the paramedic knows that the patient does not really have a choice then failure to explain that to the patient would not be good paramedic practice.

The potential consequences of ‘coercing a patient into “voluntarily” coming to hospital’ is that the person believes they have no choice (which they don’t) they are effectively detained (R v Inwood [1973] 2 All ER 645); they’re not really coming voluntarily. Just as an arrest can be effected if a person submits to police (Licciardello v R (2012) 6 ACTLR 233) so to detention under the Mental Health Act could be established if the person, on being told that they will be detained if they don’t submit, does submit. A person is only a voluntary patient if they really have a choice to not be a patient and in the scenario given, that is not a choice that is open to them.

If there is no power to detain then a threat to detain them means it’s a false imprisonment if they have been told that they can get in or they will be forced in. Telling a person they have a choice to get in the car or they will be detained can only be lawful if the criteria in s 20 have been met and the paramedic really intends to detain the person if they don’t put themselves in the ambulance. Either way the paramedic has to be prepared to show that the criteria in s 20 did exist.  In the situation described the patient is not being given a choice of going to hospital or not, they are being given the choice of cooperating or being forced into the ambulance. Because they are being told that they are not at liberty to go, the lawful authority to detain them has to be there.  But acting under s 20 does not require the use of force. If you tell the patient you are not going to let them go about their business, you are detaining them.  The fact that they cooperate and get into the ambulance does not change that.

Remember s 20 says you can take the person to a mental health facility. If you take them to a mental health facility you are acting under s 20 whether they are cooperating or not.