Detaining patients – providing care with one hand tied?

The recent decision of Judge Black, finding that hospitals have no right to detain patients except as authorised under the Mental Health Act 2014 (WA) (the Act), highlights the difficulties health care workers must manage when caring for patients that may pose a risk to the community (or to themselves).

While the decision provides some much-needed clarity on what has been a notoriously cloudy area of law, in this update we consider the scenarios in which hospital staff are permitted to detain patients, what the consequences may be if these conditions are not met, and what this will mean for health service providers in the real world.

Judge Black’s decision makes it clear that, without an appropriate order having been made under the Act, attempts by a hospital to detain patients are risky even with the best of intentions.

If a hospital, medical practitioner or other health care worker detains or restrains a patient without those conditions being met, then there is a risk that the detention or restraint is unlawful and could lead to complaints, civil damages claims or professional complaints.

Although there are defences and excuses available to health care workers who detain or restrain patients in circumstances of necessity or emergency or self defence (to name a few), this is different to the detention or restraint being authorised, and it is far more difficult to prove and rely upon a defence or excuse when responding to criminal charges or civil damages claims.

It is therefore important for hospitals, medical practitioners and other health care workers to only detain patients if an order is made under the Mental Health Act, or if there are circumstances which would justify a “citizen’s arrest”. Any other circumstance will expose the hospital, medical practitioner or health care worker to potential criminal or civil liability.

The only circumstances in which a hospital, medical practitioner or authorised mental health practitioner is permitted or empowered to detain a patient is if the detention is authorised under the Act or some other law. This includes the following situations:

1. if a patient is not already in hospital, an order can be made to detain a patient for up to 24 hours to enable them to be taken to a hospital for assessment;
   
2. once the patient arrives at the hospital, an order can be made to detain a patient for up to 24 hours at a hospital to enable them to be assessed;
   
3. if a patient is in hospital voluntarily, the person in charge of the ward can detain them for up to 6 hours to enable them to be assessed;
   
4. if the patient is in hospital and has been referred for examination, in which case the patient can be detained for up to 24 hours to enable the assessment to be completed;
   
5. if an inpatient treatment order has been made under the Act; or
   
6. where staff reasonably suspect the patient has committed or is in the process of committing an arrestable offence, being ‘an offence the statutory penalty for which is or includes imprisonment’ under section 25 of the Criminal Investigation Act 2006 (WA). In these circumstances, staff could perform a “citizen’s arrest” to detain a patient.

The important thing to remember is that the detention will only be properly authorised under the Act if the process in the Act is followed, the necessary orders are made and there is a proper basis for those orders to be made. Further, the patient can only be detained for the length of time specified in the detention order or, in the case of a citizen’s arrest, for as long as is necessary for a police officer to attend.