A recent District Court trial of a man accused of grievous bodily harm following his use of force against a security officer trying to prevent him leaving a Perth Hospital has highlighted the difficult position that hospital staff face in this type of scenario. The patient was found not guilty of the charge on the ground that it was unlawful for him to be detained at the hospital and it was therefore reasonable for him to use force to break free.
We have many claims come across our desks in which a patient such as described above, has left an emergency department (sometimes noticed and sometimes unnoticed by staff) only to come to harm of some form shortly afterwards. The patient has then pursued a civil claim for damages against the hospital, alleging that the hospital breached it duty of care to them by allowing them to leave. Following assessment by a lawyer, these claims are often settled on the basis that some damages are payable.
So why is it that the District Court says that a hospital has no right to detain a patient wishing to leave, and yet if a patient subsequently comes to harm or sustains injury after being allowed to leave, this may be a breach of the hospital’s duty of care to the patient?
Individuals have the right to autonomy and self-determination in their medical treatment. This means that patients have the right to refuse treatment and cannot be detained against their will without proper legal authority. For patients who lack the capacity to make decisions about their own medical treatment, the law provides for a process of substituted decision-making, in which a legal guardian or other authorised representative can make decisions on the patient’s behalf. The Mental Health Act (WA) 2014, also allows for a person to be detained in certain circumstances.
In many of the cases we deal with, it is often the documentation around the patient’s presentation that often makes defending claims such as these difficult.
Where it is considered that a hospital may have breached its duty of care by allowing a patient to leave an emergency department prior to psychiatric assessment, there is often a lack of documentation by hospital staff outlining the assessments undertaken and that a view had been formed that the patient had capacity to consent to admission and or treatment. In many cases, the hospital notes clearly outline the agitated and disruptive behaviours of the patient, may query if the patient is suffering psychosis and then briefly state ‘awaiting psych review’. Documentation around the patient’s decision to leave the department often does not evidence any risk assessment being performed or any assessment of the patient’s capacity to consent to admission and or treatment.
In a civil claim for damages, a patient must prove on the balance of probabilities that had a hospital acted differently (not breached its duty of care) they would not have suffered harm (or injury). Where the hospital record identifies that the patient has been demonstrating agitated and disruptive behaviour, has been under the influence of amphetamines or other drugs and there is a suggestion that they may be suffering from a psychosis and need review by the psychiatric team, it is not difficult for them to meet this burden of proof.
For a hospital or medical practitioners to be able to successfully defend such a claim, it is important that they fully document their assessment of the patient, identify and document the risk that the patient may pose to themselves or others and whether or not the patient has capacity to consent to treatment. A person is presumed to have capacity unless there is evidence to displace this presumption. In circumstances where a doctor considers a patient does not currently have capacity to consent, this should be clearly documented and contact made with their substitute decision maker. Steps should also be taken to escalate psychiatric review.
