The default assumption must be that a patient is free and capable of making decisions about things which concern them. To commit a person to involuntary treatment is an action of last-resort and may only be undertaken in specific circumstances.

Types of involuntary treatment

The detention of patients against their will falls under two main categories.

1. A patient under the Mental Health Act 2014 (WA) with an active detention form (usually 3A, but may also be 2, 3B, 3C, 3D) in the context of involuntary treatment orders; or,
2. A patient not under the MHA, but who lacks capacity to make decision and whose decision to leave the Emergency Department clearly demonstrates a risk of harm to a) self, b) others, or rarely c) reputation. This is referred to as ‘Duty of Care’.

Duty of Care

Duty of Care is a fairly nebulous term which is established in Common Law in Australia (that is, the combination of legal judgements and legislation). It describes a duty owed by a doctor to their patient to “make the care of that patient their first concern” (AHPRA code of conduct).

Capacity

The elements of capacity are set out by the Mental Health Act 2014 (WA), section 15 below.

15.Determining capacity to make decisions

(1) For the purposes of this Act, a person has the capacity to make a decision about a matter relating to himself or herself if another person who is performing a function under this Act that requires that other person to determine that capacity is satisfied that the person has the capacity to —

(a) understand any information or advice about the decision that is required under this Act to be provided to the person; and

(b) understand the matters involved in the decision; and

(c) understand the effect of the decision; and

(d) weigh up the factors referred to in paragraphs (a), (b) and (c) for the purpose of making the decision; and

(e) communicate the decision in some way.

Mental Health Act 2014 (WA)

NB:

• Section 13 tells us that an adult is presumed to HAVE capacity unless shown otherwise.
• Section 14 tells us that a child (def: person under 18 years of age) is presumed NOT TO HAVE capacity unless shown otherwise.

Negligence

The concept of Duty of Care more generally is bound up in Negligence law. A doctor has been negligent if they:

1. Owe the patient a duty of care; and,
2. Breach that duty of care by some act or omission; and,
3. The act or omission has caused physical or financial harm to the patient.

Necessity

A patient who feels their care was negligent may seek legal remedy under tort law. This may include those who have been the subject of involuntary treatment. The defence of actions taken under Duty of Care is that of Necessity. The requirements are listed hence.

There are three necessary requirements for the application of the doctrine of necessity:

(i) the act is needed to avoid inevitable and irreparable evil;

(ii) no more should be done than is reasonably necessary for the purpose to be achieved;

(iii) the evil inflicted must not be disproportionate to the evil avoided.

Stephen’s Digest of the Criminal Law (1^st ed, 1887), reaffirmed in Re A (Conjoined Twins) [2000] EWCA Civ 254, Brooke LJ

Rights

Involuntary patients retain rights and should be treated with respect and care. A summary of the rights of the involuntary patient is presented on the Health Consumers’ Council website

Links and Resources

Mental Health Act 2014 (WA)

Office of the Chief Psychiatrist website

Mental Health Act Forms list

Mental Health Act Clinician’s Practice Guide

Involuntary Patient Rights – Health Consumers’ Council website

AHPRA Code of Conduct