Legal issues for Dr Michael Eburn Associate Professor ANU College of Law The Australian National University, Canberra Northmead, 9 November 2017

Retrieving a patient from overseas. I can’t comment on the laws of other countries (there are 193 members of the UN!) Is there a potential risk that the authorities could pursue criminal charges against the doctor/nurse for unregistered practice? Yes, there’s a risk but it’s unlikely.

Consider Are you really practicing medicine in that other country? Drugs may be an issue. There is Australian law to recognize medical staff of visiting delegations (see for example, Health Professionals (Special Events Exemption) Act 1997 (NSW)).

Informal agreements with the foreign governments Are by definition ‘informal’. To the extent that governments work together they may help but Not if there are independent authorities or action is taken by non-government agencies or individuals. Cf status of forces agreements; the Australian Civilian Corps Act 2011 (Cth).

The unexpected emergency Are you helping the person on the street? Or setting up a mobile field hospital? Work with the local staff – offer to help, don’t take over.

Advice Careflight needs to consider all aspects of international travel Passports and visas Recognition of qualifications Quarantine Permission to land Liaison with local authorities etc

What is the liability if Careflight does not get to a patient? Probably none. Careflight’s obligations are probably based in contract – what have you agreed to do? With respect to the patient in most cases their relationship is not with you.

Wyong Shire v Shirt (1980) 146 CLR 40, 48. ‘What is a reasonable response requires consideration of ‘the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities.’

Consider Kent v Griffiths [2001] QB 36

Causation Did the delay actually cause a worse outcome? They were already sick or injured.

Advice Careflight should ensure contracts with insurers and state authorities do not contain guarantees with respect to service provision.

Can a landowner refuse access to a Careflight helicopter? Trespass – ‘an individual intentionally or, in negligently enters the land of another without a lawful excuse’. Lawful excuse – necessity.

Stephen’s Digest of the Criminal Law (1st ed, 1887). ‘An act … may in some cases be excused if … it was done only in order to avoid consequences which could not otherwise be avoided, and which, if they had followed, would have inflicted upon him or upon others whom he was bound to protect inevitable and irreparable evil, that no more was done than was reasonably necessary for that purpose, and that the evil inflicted by it was not disproportionate to the evil avoided.’ (See also In Re A (Conjoined Twins) [2000] EWCA Civ 254).

Stephen’s Digest of the Criminal Law (1st ed, 1887). ‘An act … may in some cases be excused if … it was done only in order to avoid consequences which could not otherwise be avoided, and which, if they had followed, would have inflicted upon him or upon others whom he was bound to protect inevitable and irreparable evil, that no more was done than was reasonably necessary for that purpose, and that the evil inflicted by it was not disproportionate to the evil avoided.’ (See also In Re A (Conjoined Twins) [2000] EWCA Civ 254).

Dehn v Attorney General [1988] 2 NZLR 564, 580 (Tipping J): “A person may enter the land or building of another in circumstances which would otherwise amount to a trespass if he believes in good faith and upon grounds which are objectively reasonable that it is necessary to do so in order to preserve human life, or to prevent serious physical harm arising to the person of another, or to render assistance to another after that other has suffered serious physical harm.”

Kuru v NSW (2008) 236 CLR 1, [40] (Gleeson CJ, Gummow, Kirby & Hayne JJ) “The common law has long recognised that any person may justify what would otherwise constitute a trespass to land in cases of necessity to preserve life or property. The actions of fire fighters, police and ambulance officers will often invoke application of that principle.”

Victoria’s planning system “Emergency services – No permit is required under any provision of the planning scheme to use land for a helicopter landing site that is used by a helicopter engaged in the provision of emergency service operations.” (Victoria Planning Provisions cl 52.15).

Kuru v NSW, [43] “… except in cases provided for by the common law and by statute, police officers have no special rights to enter land.” And neither do ambulance services in NSW or the NT (but they do in Queensland).

Advice It’s OK to land on private land if it’s safe and that is reasonably necessary to provide emergency medical or rescue services.

Refusing to fly a patient What is a reasonable justification to refuse travel of a patient to hospital? Aircraft safety. Can Careflight refuse to fly a patient? It does depend on their contract with ambulance or the health insurer.

Consent Consent is a precondition for treatment; But it does not compel treatment. Doctor’s don’t have to provide unnecessary or futile care – but what is futile? A directive that treatment should be provided is consent not a binding direction.

Advice It depends on your contract; but You remain health professionals at all time. You don’t have to provide futile or unnecessary treatment.

Mental Health and Related Services Act (NT) ‘the person is to be given medication only for therapeutic or diagnostic purposes and not as a punishment or for the convenience of others’ (s 9(h)). ‘any assessment of the person to determine whether he or she needs to be admitted to an approved treatment facility is to be conducted in the least restrictive manner and environment possible’ (s 9(p)).

S 34 ‘Recommendation for psychiatric examination’ ‘A medical practitioner … must make a recommendation for psychiatric examination of a person if, after assessing the person, the practitioner is satisfied that the person fulfils the criteria for involuntary admission on the grounds of mental illness or mental disturbance.’

S 34 ‘Recommendation for psychiatric examination’ ‘A medical practitioner … must make a recommendation for psychiatric examination of a person if, after assessing the person, the practitioner is satisfied that the person fulfils the criteria for involuntary admission on the grounds of mental illness or mental disturbance.’

That recommendation Allows others to detain the patient and use ‘reasonable force’ Is it legally acceptable for a patient to be involuntarily detained under the Mental Health Act by a practitioner that has not sighted, interviewed or directly assessed the patient? Yes if they are doing so on the order of a practitioner who has assessed the patient.

Does the original involuntary paperwork need to be available to continue with an involuntary detention or are electronically transmitted copies acceptable? There’s no reason to think you have to have ‘the original’. The issue is has the recommendation been made.

Is the involuntary detention of a patient invalid if they are agreeable for transfer and assessment? Are we assaulting patients by restraining them, putting in drips etc if they are strictly voluntary patients, but have been scheduled inappropriately? What is the consequence if a patient suffers an adverse outcome from a medical intervention that has no indication on medical grounds and is being done only to facilitate transport of the mental health patient?

The answers Bioethics – treatment should always be for the patient’s best interests. The principles of mental health practice is to allow people to be involved in their health care and to be treated in the least restrictive way possible.

The use of force Has to be ‘reasonable’. An automatic ’we assume everyone with a mental health issue needs to be detained and needs to be sedated’ is not ‘reasonable’ – it is not based on ‘reason’. Use of restraints etc may be justified in individual circumstances but not as a blanket rule.

What else do you want to discuss? Thank you for your attention. Michael Eburn P: (02) 6125 6424 E: michael.eburn@anu.edu.au W: https://emergencylaw.wordpress.com/