The treatment of mentally ill patients can raise difficult
issues for medical practitioners, particularly where a patient
refuses treatment, even more so where such refusal takes place in
an emergency department or emergency setting.
In Queensland the Mental Health Act 2000 (Qld)
stipulates that the powers it provides to involuntarily assess or
restrain a mentally ill patient must be exercised so that any
adverse effect on a person's liberty and rights is minimised. A
medical practitioner or health service may be exposed to criminal
liability1 or civil liability for unlawful imprisonment
if a patient is detained contrary to the relevant provisions.
Doctors and hospitals are understandably cautious about
admitting a person for treatment or detaining a person for medical
reasons where that person's clear wish is for this not to
occur. With mentally ill patients that decision is further
complicated by the duty of care that a medical practitioner or
health service may owe to a patient or third party to prevent the
patient from hurting themselves or others. Doctors must (despite
not necessarily having particular expertise in mental health
issues) assess whether a patient appears to have a mental illness,
and make a judgement on whether there is a risk that the patient
may harm themselves or others or suffer serious physical or mental
deterioration. The interaction between the relevant statutory
powers and the common law duty of care has not been explored in
detail by the courts.
Exposure to potential liability is an obvious concern. Courts
should have some sympathy for the difficult nature of the task in
question, but otherwise medical practitioners are best protected by
doing what they can to show that they have complied with the
relevant statutory requirements, or that it was otherwise
appropriate for them to exercise the power to have a patient
involuntarily assessed and treated.
In Queensland, the relevant statutory powers derive from the
Mental Health Act 2000 (Qld). Similar legislation exists
in other jurisdictions. Apart from the circumstances set out in the
Act, restraint (but not treatment) of a mentally ill patient would
otherwise only be justified where a medical practitioner is acting
in self defence or the defence of others.
Under the Mental Health Act 2000 (Qld) any involuntary
assessment requires a request for assessment from an adult who has
observed the person within 3 days of the request and reasonably
believes they require assessment, and a recommendation for
assessment from a doctor or authorised mental health practitioner
who is satisfied that:
The patient appears to have a mental illness
The patient requires immediate assessment
The assessment can properly be made at an authorised mental
There is a risk the person may harm themselves or others or
suffer serious physical or mental deterioration.
There is no less restrictive way of ensuring that the person is
The person lacks capacity to be assessed or has unreasonably
refused to be assessed.
An emergency examination order can also be made by a police
officer, ambulance officer or psychiatrist where they reasonably
believe that a person has a mental illness, that there is an
imminent risk of physical harm being sustained by the person or
someone else, and that proceeding through the normal assessment
process would cause dangerous delay.
Given the multitude of ways in which a mental illness can
present, applying these criteria is more often than not a
challenging process. Medical practitioners and health care services
will place themselves in the best position to explain their actions
if the medical records clearly show that the relevant assessment
criteria have been considered and the basis on which they have been
1 S358 Criminal Code Act 1899
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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