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Can restraint be justified under ‘duty of care’?

Dr Reece Adler BSc (Hons), MD, Emergency Registrar Early Career Doctor Medical Adviser, Avant

Georgie Haysom, BSc, LLB (Hons) LLM (Bioethics), GAICD, Head of Research, Education and Advocacy, Avant

Wednesday, 6 September 2023

A patient is restrained by two professionals

Deciding whether a patient needs to be detained and treated involuntarily is a common and sometimes challenging decision emergency doctors face. A recent case from Western Australia1 has raised eyebrows in the emergency community about possible litigation or disciplinary action doctors may face for detaining patients against their will.

A man was brought to the emergency department unconscious due to alcohol intoxication, awoke and wanted to go outside for a cigarette, then when asked to stay for assessment became aggressive. Staff called a ‘Code Black’ for security to attend and restrain the patient. This resulted in several security officers physically restraining him, and in the struggle one of them suffered a broken ankle. The patient was charged with assault causing grievous bodily harm2.

The subsequent criminal case against the patient was heard before a jury, which delivered a verdict of not guilty, and the patient was acquitted. In instructions to the jury about the relevant law the judge said: “[The patient] was allowed to walk out. No one had the right to lay a hand on him, and no one had the right to detain him. … as a matter of law, he should have been allowed to leave ... ”

It’s important to note that this case has not changed any laws or formed new precedent, but it should serve as a reminder of the emphasis that the law places on patient autonomy.

Does the patient have capacity to consent?

The starting point for decision-making in this scenario is patient capacity. An adult patient is presumed by the law to have capacity unless there is evidence to the contrary. A patient with capacity can refuse treatment even if it is not in their own best interests.

If a patient does not have decision-making capacity, and there is no advance care directive that applies to the situation, treatment decisions can be made by the relevant substitute decision-maker or, if none is available, as otherwise permitted by the law. The law only permits treatment without consent, and detention of a patient to provide treatment, in limited circumstances.

When holding an incapacitated patient without decision-making capacity against their wishes, clinicians tend to rely on either mental health legislation or an appeal to the notion of ‘duty of care’.

When is mental health legislation appropriate?

Mental health legislation can only be used to detain a patient where they meet the relevant criteria for scheduling, (for example in NSW, they meet the definition of ‘mentally ill’ or ‘mentally disordered‘ (by substances or otherwise)), and where other, less restrictive, options are exhausted. Additionally, keeping a mentally ill or mentally disordered person under a schedule may not justify coercive treatment of co-occurring physical issues, depending on the relationship of the physical and psychological problems and on state or territory specific legislation.

What about duty of care?

A ‘duty of care’ is an often-misused term in this context. It covers all the ways in which a doctor is called upon to exercise their skill and judgement. It is relevant in all interactions between doctors and patients but does not refer to any powers or responsibilities to detain and treat patients without consent. The notion of ‘duty of care’ therefore can’t be relied upon as the basis to detain and treat a patient without consent.

Are emergency treatment powers applicable?

States and territories across Australia have different legislation providing practitioners the power to treat patients without consent. Although the legislation has different titles, e.g. NSW has the Guardianship Act while Victoria has the Medical Treatment Planning and Decisions Act, generally it allows practitioners to administer treatment without a person’s consent if the practitioner believes, on reasonable grounds, that the medical treatment is necessary as a matter of urgency to: save the person’s life; prevent serious damage to the person’s health; or prevent the person from suffering, or continuing to suffer, significant pain and distress.

This legislation allows treatment of patients without their consent, but does not specifically address a power to detain or restrain patients for the purpose of providing that treatment. This power comes from the common law concept called 'the doctrine of necessity’3 which can be used in limited circumstances to justify restraint and treatment in the best interests of the patient in an emergency, or where the patient is putting themselves or others at immediate risk.


The law places great importance on personal autonomy. A decision to restrain and treat patients against their will should not be made lightly, and there needs to be careful assessment and documentation of capacity. A recent article in Emergency Medicine Australasia4 contains a useful decision pathway.

While cases of a patient making a subsequent complaint are rare, doctors also need to be aware of the physical and psychological risks patients and staff may be exposed to when violent and often distressing scenes occur in the emergency department.

When a patient chooses to refuse treatment or discharges themselves against medical advice, doctors and health services still have obligations towards that patient. An approach to best practice discharge in this situation, and discussion of potential liabilities, will be addressed in a follow up article.


Avant routinely codes information collected in the course of assisting member doctors in medico-legal matters into a standardised, deidentified dataset. This retrospective analysis was conducted using this dataset. The findings represent the experience of these doctors in the period of time specified, which may not reflect the experience of all doctors in Australia. This publication is not comprehensive and does not constitute legal or medical advice. You should seek legal or other professional advice before relying on any content, and practise proper clinical decision-making with regard to the individual circumstances. Persons implementing any recommendations contained in this publication must exercise their own independent skill or judgement or seek appropriate professional advice relevant to their own particular practice. Compliance with any recommendations will not in any way guarantee discharge of the duty of care owed to patients and others coming into contact with the health professional or practice. Avant is not responsible to you or anyone else for any loss suffered in connection with the use of this information. Information is only current at the date initially published. © Avant Mutual Group Limited 2023.

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