Section 2 of the Mental Health Act facilitates compulsory admission to hospital for assessment and treatment for up to 28 days. The application is usually made by an approved social worker or the patient’s nearest relative and requires two medical recommendations, usually from the patient’s general practitioner and the duty senior psychiatrist (who is approved under Section 12 of the Mental Health Act). In the ED, the responsibility for coordinating the procedure often lies with the emergency physician.

Section 3 of the Mental Health Act covers compulsory admission for treatment. Once again, recommendations must be made by two doctors, one of whom is usually the general practitioner and the other a psychiatrist approved under Section 12 of the Act. The application is usually made by an approved social worker or the patient’s nearest relative. Detention is for up to 6 months but can be renewed.

Section 4 of the Mental Health Act covers emergency admission for assessment and attempts to avoid delay in emergency situations when obtaining a second recommendation could be dangerous. It requires the recommendation of only one doctor, who may be any registered medical practitioner who must have seen the patient within the previous 24 h. The order lasts for 72 h. Application can be made by the patient’s nearest relative or an approved social worker. In practice, the application of Section 4 of the Mental Health Act rarely happens. Usually Section 2 or 3 is the preferred option.

Section 5 (2) – doctors holding power and Section 5 (4) – nurses holding power of the Act allow the detention of patients who are already admitted to hospital until a more formal Mental Health Act assessment can take place. Unfortunately, presence in the ED is not considered to constitute admission to hospital, and this section is, therefore, not applicable to the ED.

A new draft Mental Health Bill published in 2002 was opposed by professional and patient groups alike. It aimed to introduce a new legal framework for the compulsory treatment of people with mental disorders in hospitals and the community. The new procedure involved a single pathway in three stages: a preliminary examination, a period of formal assessment lasting up to 28 days and treatment under a Mental Health Act order. In order for the compulsory process to be used, four conditions needed to be satisfied: the patient must have a mental disorder, the disorder must warrant medical treatment, treatment must be necessary for the health and safety of the patient or others, and an appropriate treatment for the disorder must be available. The draft Bill made provision for treatment without consent as it is justified under the European Convention on Human Rights Article 8 (2) in the interests of public safety or to protect health or moral standards.

The resulting debate saw much of the draft Bill being scrapped in favour of amendments being made to the existing Mental Health Act. This included the creation of community treatment orders and a broader definition of mental disorder.

Use of sedation or physical restraint

This is covered in detail elsewhere (Chapters 20.6 and 21.5). From the perspective of the mental health legislation, there are occasions where physical or pharmacological restraint is needed. Sedation or restraint must be the minimum that is necessary to prevent the patient from self-harming or harming others. Generally, a patient committed involuntarily is subject to treatment necessary for their care and control, and this may reasonably include the administration of sedative or antipsychotic medication as emergency treatment. Transporting these patients to a mental health service should be done by suitably trained medical or ambulance staff, and not delegated to police officers or other persons acting alone.

Mental health legislation in Australasia

In Australia mental health legislation is a state jurisdiction, and among the various states and territories there is considerable variation in the scope of mental health acts, and between definitions and applications of the various sections. Since the National Mental Health Strategy in 1992, there has been an effort in Australia to adopt a consistent approach between jurisdictions, with an emphasis on ensuring legislated review mechanisms and a broad spectrum of treatment modalities.² Nevertheless, key differences apply between mental health acts and therefore specific issues should be referred to the Act relevant to the emergency physician’s practice location.

The Australian and New Zealand mental health acts referred to in this chapter are the following:

ACT – Mental Health (Treatment and Care) Act 1994 and amendments 2007

New South Wales – Mental Health Act 1990 and amendments (to be repealed by the commencement of the Mental Health Act 2007)

New Zealand – Mental Health (Compulsory Assessment and Treatment) Act 1992 and the 1999 Amendment

Northern Territory – Mental Health and Related Services Act 1998 and amendments 2005

Queensland – Mental Health Act 2000

South Australia – Mental Health Act 1993 and amendments

Tasmania – Mental Health Act 1996

Victoria – Mental Health Act 1986 and incorporating amendments as at 1 July 2007

Western Australia – Mental Health Act 1996.

Sections of the various mental health acts relevant to emergency medicine include those dealing with:

• the definition of mentally ill

• indigenous and cultural acknowledgment

• the effects of drugs or alcohol

• criteria for detention and admission as an involuntary patient

• involuntary admission

• persons unable to recommend a patient for involuntary admission

• physical restraint and sedation

• emergency treatment

• powers of police

• prisoners with mental illness

• amendment of documents

• offences in relation to documents

• information and patient transfer between jurisdictions

• deaths.

Definition of mentally ill or mental illness

For the purposes of their respective mental health acts, New Zealand and all the Australian states and territories define mental illness or disorder as follows.

Australian Capital Territory

The Australian Capital Territory (ACT) Act defines a psychiatric illness as a condition that seriously impairs (either temporarily or permanently) the mental functioning of a person and is characterized by the presence in the person of any of the following symptoms: delusions, hallucinations, serious disorder of thought form, a severe disturbance of mood or sustained or repeated irrational behaviour indicating the presence of these symptoms.

The ACT Mental Health Act also defines ‘mental dysfunction’ as a ‘disturbance or defect, to a substantially disabling degree, of perceptual interpretation, comprehension, reasoning, learning, judgement, memory, motivation or emotion’.

New South Wales

The New South Wales Act defines mental illness in the same way as the ACT, but in addition distinguishes between a mentally ill person and a mentally disordered person.

A person is mentally ill if suffering from mental illness and, owing to that illness, requires care, treatment or control in order to protect the patient or others from serious physical harm. A person is also considered to be mentally ill if suffering from a mental illness that is characterized by a severe disturbance of mood or sustained or repeated irrational behaviour and requires care, treatment or control to protect the person from serious financial harm or damage to the person’s reputation. There is also an acknowledgement of chronicity and the effects of likely deterioration, which should be taken into account when determining whether a person has mental illness.

A person (whether or not the person is suffering from mental illness) is mentally disordered if the person’s behaviour for the time being is so irrational as to justify conclusion on reasonable grounds that temporary care, treatment or control of the person is necessary for the person’s own protection from serious physical harm, or for the protection of others from serious physical harm.

New Zealand

In New Zealand, the Mental Health Act defines a mentally disordered person as possessing an abnormal state of mind, whether continuous or intermittent, characterized by delusions or by disorders of mood, perception, volition or cognition to such a degree that it poses a danger to the health or safety of the person or others, or seriously diminishes the capacity of the person to take care of themselves.

Northern Territory

In the Northern Territory, mental illness means a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person in one or more of the areas of thought, mood, volition, perception, orientation or memory and is characterized by the presence of at least one of the following symptoms: delusions, hallucinations, serious disorders of the stream of thought, serious disorders of thought form or serious disturbances of mood. A mental illness is also characterized by sustained or repeated irrational behaviour that may be taken to indicate the presence of at least one of the symptoms mentioned above. The Northern Territory Act goes further, to specify that the determination of mental illness is only to be made in accordance with internationally accepted clinical standards and makes special mention of the World Health Association and both UK and American mental disorder classification guidelines.

Queensland

The Queensland Act defines mental illness in a similar way to Victoria, in that it is a condition characterized by a clinically significant disturbance of thought, mood, perception or memory, in accordance with internationally acceptable standards.

South Australia

In the South Australian Act mental illness means any illness or disorder of the mind.

Tasmania

A mental illness is a mental condition resulting in serious distortion of perception or thought, or serious impairment or disturbance of the capacity for rational thought. Also included in the Tasmanian definition is a serious disorder of mood, or involuntary behaviour or serious impairment of the capacity to control behaviour.

Victoria

A person is mentally ill if they have a mental illness, being a medical condition characterized by a significant disturbance of thought, mood, perception or memory.

Western Australia

Persons have a mental illness if they suffer from a disturbance of thought, mood, volition, perception, orientation or memory that impairs judgement or behaviour to a significant extent.

Indigenous and cultural acknowledgement

Cultural differences in the understanding and experiences of mental illness can impact greatly on the ability to provide adequate care. Whilst there are some cursory references to acknowledging special cultural and linguistic needs when interpreting the various mental health acts, only the Northern Territory in Australia and the New Zealand Mental Health Acts make specific mention of indigenous people, who are known to be a particularly vulnerable group.³

The Northern Territory Act states that there are fundamental principles to be taken into account when caring for Aborigines and Torres Strait Islanders. Treatment and care needs to be appropriate to the cultural beliefs and practices of the person, their family and community, and involuntary treatment for an Aborigine is to be provided in collaboration with an Aboriginal health worker.

New Zealand stipulates that powers are to be exercised in relation to the Mental Health Act with proper respect for cultural identity and personal beliefs, and with proper recognition of the importance and significance to the persons of their ties with family, whanau, hapu, iwi and family group. Interpreters are to be provided if the first or preferred language is not English, with special mention of Maori and New Zealand Sign Language.

Safeguards against prejudice

New Zealand and all Australian states, except South Australia, include a number of criteria that, alone, cannot be used to determine that a person has a mental illness and requires involuntary admission. These generally include the expression of or refusal to express particular religious, political and philosophical beliefs; cultural or racial origin; sexual promiscuity or preference; intellectual disability; drug or alcohol taking; economic or social status; immoral or indecent conduct; illegal conduct; and antisocial behaviour. The Northern Territory and Queensland also include past treatment for mental illness and past involuntary admission under these criteria.

Effects of drugs or alcohol

In most Australian states and New Zealand the taking of drugs or alcohol cannot, of itself, be taken as an indication of mental illness. However, the mental health acts of New South Wales and Victoria specify that this does not prevent the serious temporary or permanent physiological, biochemical or psychological effects of alcohol or drug taking from being regarded as an indication that a person is mentally ill. The Queensland Act acknowledges that a person may have a mental illness caused by taking drugs or alcohol.

The remaining states do not specifically exclude the temporary or permanent effects of drugs or alcohol but use definitions of mental or psychiatric illness that are broad enough to cover this. Generally, when a person is so mentally and behaviourally disordered as a result of drug or alcohol use that adequate assessment is impossible and risk of harm to self or others is high, then detaining them for the purposes of assessment and treatment is possible under all Australian and New Zealand mental health acts.

Criteria for admission and detention as an involuntary patient

All states require that an involuntary patient has a mental illness that requires urgent treatment while detained in an inpatient setting for the health (mental or physical) and safety of that patient or for the protection of others. Victoria, Western Australia, Queensland, the Northern Territory and the ACT also require that the patient has refused or is unable to consent to voluntary admission. It is also emphasized that appropriate treatment must be available and cannot be given in a less restrictive setting.

Both New South Wales and Western Australia include the protection of the patient from self-inflicted harm to the patient’s reputation, relationships or finances as grounds for involuntary admission.

In New Zealand the doctor must have reasonable grounds for believing that the person may be mentally disordered and that it is desirable, in the interests of the person, or of any other person or of the public, that assessment, examination and treatment of the person are conducted as a matter of urgency.

Involuntary admission

The process of involuntary admission varies quite markedly across the states. It is variously known as recommendation, certification or committal. All jurisdictions require doctors to examine patients and carefully document on prescribed forms the date and time of examination as well as the particular reasons why the doctor believes that the person has a mental illness that requires involuntary treatment. In addition, patients or their advocates are to be informed of the decisions made about them and their rights under the law at all stages of the involuntary admission process.

Act

In the ACT a medical or police officer is able to apprehend a mentally ill person who requires involuntary admission and is able to use reasonable force and enter premises in order to do so. The officer is required, as soon as possible, to provide a written statement to the person in charge of the mental health facility giving patient details and the reasons for taking the action.

A doctor employed by the mental health facility must examine the patient within 4 h of arrival and may authorize detention for up to 3 days. The doctor must inform the Community Advocate and Mental Health Tribunal of the patient’s admission within 12 h, and the patient must receive a physical and psychiatric examination within 24 h of detention.

New South Wales

The Mental Health Act in New South Wales allows for a patient requiring involuntary admission to be detained in hospital on the certificate of a doctor who has personally examined the patient immediately or shortly before completing the certificate.

For a mentally ill patient the certificate is valid for 5 days from the time of writing, whereas for a mentally disordered patient the certificate is valid for 1 day. Mentally disordered patients cannot be detained on the grounds of being mentally disordered on more than three occasions in any 1 month.

Part of the certificate, if completed, directs the police to apprehend and bring the patient to hospital and also enables them to enter premises without a warrant.

An involuntary patient must be examined by the ‘medical superintendent’ as soon as practicable, but within 12 h of admission. The patient cannot be detained unless further certified mentally ill or disordered. This doctor cannot be the same doctor who requested admission or certified the patient. After their own examination, the ‘medical superintendent’ must arrange for a second examination as soon as practicable, this time by a psychiatrist. If neither doctor thinks that the person is mentally ill or disordered, then the person must be released from the hospital.

A patient who has been certified as mentally disordered, but not subsequently found to be mentally ill, cannot be detained for more than 3 days and must be examined by the ‘medical superintendent’ at least once every 24 h and discharged if no longer mentally ill or disordered, or if appropriate and less restrictive care is available.

New Zealand

In New Zealand, a person aged 18 years or over may request an assessment by the area mental health service if it has seen the person within the last 3 days and believes the person to be suffering from a mental disorder. The request may be accompanied by a certificate from a doctor who has examined the ‘proposed patient’ within the preceding 3 days and who believes that the person requires compulsory assessment and treatment. The medical certificate must state the reasons for the opinion and that the patient is not a relative. The area mental health service must then arrange an assessment examination by a psychiatrist or other suitable person forthwith. If the assessing doctor considers that the patient requires compulsory treatment, the patient may be detained in the ‘first period’ for up to 5 days. Subsequent assessment may result in detention for a ‘second period’ of up to 14 more days, after which a ‘compulsory treatment order’ must be issued by a family court judge.

Northern Territory

Any person with a genuine interest in or concern for the welfare of another person may request an assessment by any medical practitioner to determine if that person is in need of treatment under the Northern Territory Mental Health Act. The assessment must then occur as soon as practicable, and a subsequent recommendation for psychiatric examination made if the doctor believes that the person fulfils the criteria for involuntary admission on the grounds of mental illness or mental disturbance. The person may then be detained by police, ambulance officers or the doctor making the recommendation and taken to an approved treatment facility, where the person may be held for up to 12 h. The Northern Territory Act acknowledges that delays in this process are likely and enshrines a process to account for this, including the use of interactive video conferencing. A psychiatrist must examine and assess the recommended person at the approved treatment facility and must either admit as an involuntary patient or release the patient if the criteria for involuntary admission are not fulfilled.

A patient admitted on the grounds of mental illness may be detained for 24 h or 7 days if the recommending doctor was also a psychiatrist. Patients admitted on the grounds of mental disturbance may be detained for 72 h or have that extended by 7 days if two examining psychiatrists believe that the person still requires involuntary treatment and cannot or will not consent. Frequent psychiatric reassessment of detained and admitted patients is required to either extend admission or release patients who do not fulfil involuntary criteria.

Queensland

In Queensland the recommendation for involuntary assessment of a patient must be made by a doctor who has personally examined the patient within the preceding 3 days and is valid for 7 days from the time the recommendation was made. The recommendation needs to be accompanied by an ‘application’ for assessment made by a person over the age of 18 years who has seen the patient within 3 days. The person making the application cannot be the doctor making the recommendation or be a relative or employee of the doctor. The recommendation enables the health practitioner, ambulance officer or police, if necessary, to take the patient to a mental health service or public hospital for assessment. Once there, or if the recommendation was made at a hospital, the assessment period lasts for no longer than 24 h.

The patient must be assessed by a psychiatrist (who cannot be the recommending doctor) as soon as practicable, and if the treatment criteria apply, will have the involuntary status upheld through an involuntary treatment order. The assessment period can be extended up to 72 h by the psychiatrist after regular review.

South Australia

In South Australia, a doctor who considers that a patient requires involuntary admission is required to fill in the appropriate order for admission and detention in an approved treatment centre. This is valid for 3 days, unless revoked, and requires that the person is examined by a psychiatrist as soon as practicable but within 24 h. The psychiatrist may revoke the order or may order further detention of up to 21 days.

The South Australian Mental Health Act enables police to enter premises, apprehend and convey a mentally ill person to a medical practitioner for examination. It also enables ambulance officers to convey, using reasonable force if necessary, a mentally ill person to a place for assessment or care.

Tasmania

In Tasmania, an application for involuntary admission of a person may be made by close relative or guardians, or an ‘authorized officer’. A medical practitioner must then assess the person and, if satisfied that the criteria are met, make an order for admission and detention as an involuntary patient in an approved hospital. This initial order is valid for 72 h and gives authority for the patient to be taken to the hospital and detained, whereupon a psychiatric assessment must be carried out within 24 h and the initial order confirmed or discharged. A further order for the continuing detention of a person as an involuntary patient can be made if the appropriate criteria are met and after two doctors (at least one a psychiatrist and neither having written the initial order) have examined the patient. A continuing care order can be valid for up to 6 months.

Victoria

A person may be admitted to and detained in an approved mental health service once the ‘request’ and the ‘recommendation’ have been completed. The request can be completed by any person over 18 years of age, including relatives of the patient, but cannot be completed by the recommending doctor. The recommendation is valid for 3 days after completion, and the recommending doctor must have personally examined or observed the patient.

The request and recommendation are sufficient authority for the medical practitioner, police officer or ambulance officer to take the person to a mental health service or to enter premises without a warrant and to use reasonable force or restraint in order to take the person to a mental health service. Prescribed medical practitioners (psychiatrists, forensic physicians, doctors employed by a mental health service, the head of an ED of a general hospital or the regular treating doctor in a remote area) are also enabled to use sedation or restraint to enable a person to be taken safely to a mental health service.

Once admitted, the patient must be seen by a medical practitioner employed by the mental health service as soon as possible, but must be seen by a registered psychiatrist within 24 h of admission. The admitting doctor must make an involuntary treatment order, which allows for the detention of the patient until psychiatrist review and the urgent administration of medication if needed. The psychiatrist can then either authorize further detention, a community treatment order, or discharge the patient.

Western Australia

In Western Australia a patient who requires involuntary admission is referred, in writing, for examination by a psychiatrist in an authorized hospital (all public and certain private hospitals). The referring doctor must have personally examined the patient within the previous 48 h. If no suitable alternatives are available and the condition of the patient requires their involvement, the referring doctor may direct police to apprehend the patient, by writing a ‘transport order’. This enables police to apprehend, enter premises, and search the patient or premises. The transport order lapses 72 h after it was made, or at the end of the seventh day after the initial referral was made.

The referral for assessment is valid for 7 days; however, the patient must be examined by a psychiatrist within 24 h of admission and cannot be detained further if not examined. The patient can be detained for further assessment for up to 72 h after initial admission on the order of the psychiatrist, after which time the patient is formally admitted as an involuntary patient, discharged on a community treatment order or released.

Persons unable to recommend a patient for involuntary admission

New Zealand and most states, except for the ACT, specify that certain relationships prevent a doctor from requesting or recommending a patient for involuntary admission.

The recommending doctor cannot be a relative (by blood or marriage) or guardian of the patient, and, in addition, in the Northern Territory, Queensland, Tasmania and Western Australia, the doctor cannot be a business partner or assistant of the patient. In Queensland and Tasmania, the recommending doctor cannot be in receipt of payments for the maintenance of the patient.

In New South Wales, the doctor must declare, on the schedule, any direct or indirect pecuniary interest, or those of their relatives, partners or assistants, in an ‘authorized hospital’. In Tasmania, the doctor cannot be on the staff of a private hospital to which the patient will be admitted, and, in Western Australia, the doctor cannot hold a licence from or have a family or financial relationship with the licence holder of a private hospital in which the patient will be treated, nor can the doctor be a board member of a public hospital treating the patient.

Use of sedation or physical restraint

From time to time a patient may need to be sedated or even restrained. The various mental health acts vary considerably in dealing with this issue, and accepted clinical practice has evolved differently in each jurisdiction and does not necessarily reflect subtleties within the legislation.

Generally, patients committed involuntarily are subject to treatment necessary for their care and control, and this may reasonably include the administration of sedative or antipsychotic medication as emergency treatment. In general, sedation or restraint must be the minimum that is necessary to prevent the patient from self-harming or harming others, and careful documentation of the reasons for restraint and the types of restraint is required.

Patients who are physically or pharmacologically restrained must be closely supervised and not left alone or in the care of persons not trained or equipped to deal with the potential complications of these procedures. Transporting these patients to a mental health service should be done by suitably trained medical or ambulance staff and not delegated to police officers or other persons acting alone.

The ACT specifies that sedation may be used to prevent harm, whereas Western Australia specifies that sedation can be used for emergency treatment without consent, and that the details must be recorded in a report to the Mental Health Review Board. Queensland allows a doctor to administer medication for recommended patients without consent to ensure safety during transport to a health facility.

Victoria specifically permits the administration of sedative medication by a ‘prescribed medical practitioner’ to allow for the safe transport of a patient to a mental health service. There is a schedule to complete if this is undertaken.

The legislation is more specific with regard to the use of physical restraint or seclusion. In the ACT this can be done to prevent an immediate and substantial risk of harm to the patient or others, or to keep the patient in custody.

Queensland requires that restraint used for the protection of the patient or others can only be done on an ‘order’ but is permissible for the purposes of treatment if it is clinically appropriate. Tasmania permits its use, on the approval of the responsible medical officer, for the medical treatment or protection of the patient, other persons or property. Victoria permits the restraint of involuntary patients for the purposes of medical treatment and the prevention of injury or persistent property destruction. Victoria also allows the use of restraint by ambulance officers, police or doctors in order to safely transport the patient to a mental health service, but this must be documented in the recommendation schedule.

Both the Northern Territory and Western Australia permit the use of restraint for the purposes of medical treatment and for the protection of the patient, other persons or property. In Western Australia this authorization must be in writing and must be notified to the senior psychiatrist as soon as possible, whilst in the Northern Territory, it must be approved by a psychiatrist or the senior nurse on duty in the case of an emergency.

The New Zealand Mental Health Act makes minimal specific reference to restraint or sedation but enables any urgent treatment to protect the patient or others and allows hospitals and police to take all reasonable steps to detain patients for assessment and treatment. Authority is given to administer sedative drugs if necessary, but the Act mandates a record of this for the area mental health service.

Emergency treatment and surgery

On occasions, involuntary patients may require emergency medical or surgical treatment. New Zealand and most states, except for Queensland and Tasmania, make provision for this in their legislation, in that patients can undergo emergency treatment without consent, but usually only with the approval of the relevant mental health authorities or treating psychiatrist. In New Zealand, treatment that is immediately necessary to save life, prevent serious damage to health or prevent injury to the person or others can be undertaken without consent.

Victoria has the most specific reference to this treatment by making special allowance for a patient requiring treatment that is life sustaining or preventing serious physical deterioration to be admitted as an involuntary patient to a general hospital or ED for the purposes of receiving treatment. The patient is deemed to be on leave from the mental health service, and all the other provisions of the Act apply.

Apprehension of absent involuntary patients

Involuntary patients who escape from custody or who fail to return from ‘leave’ are considered in most state mental health acts to be ‘absent without leave’ (AWOL) or ‘unlawfully at large’, although the ACT Act makes no reference to this. In the remaining states and the Northern Territory, authorized persons, including staff of the mental health service and police, have the same powers of entry and apprehension as for other persons to whom a recommendation or certificate relates. In Tasmania these powers exist for 28 days from the time of going AWOL, whereas in Victoria they apply for 12 months, after which time the patient is automatically discharged unless the chief psychiatrist considers it appropriate for the patient to remain, theoretically at least, in custody. Queensland, New South Wales, the Northern Territory, South Australia and Western Australia do not specify a time limit for the return of AWOL patients.

In New Zealand any compulsory patient who becomes AWOL may be ‘retaken’ by any person and taken to any hospital within 3 months of becoming absent. If not returned after 3 months the patient is deemed to be released from compulsory status.

Powers of the police

The police in all states and New Zealand have powers in relation to mentally ill persons who may or may not have been assessed by a doctor. For someone who is not already an involuntary patient and who is reasonably believed to be mentally ill, a risk to self or others and requiring care, police are able to enter premises and apprehend, without a warrant, and to use reasonable force if necessary, in order to remove the person to a ‘place of safety’. Generally, this means taking the person to a medical practitioner or a mental health service for examination without undue delay.

South Australia and Queensland specifically include ambulance officers within this legislation and acknowledge that they often work together with police to detain and transport people for mental health assessment. In Tasmania, people may only be held in protective custody for the purposes of medical assessment for no longer than 4 h and then released if no involuntary admission order has been made.

Some states (ACT, New South Wales and Victoria) make special mention of a threatened or actual suicide attempt as justification for police apprehension and transfer to a health facility. New South Wales allows police discretion, after a person who appears mentally disordered has committed an offence (including attempted murder), to determine whether it is beneficial to their welfare to be detained under the mental health act rather than under other criminal law. The Victorian Act, in contrast, acknowledges that police do not need clinical judgement about mental illness but may exercise their powers based on their own perception of a person’s appearance and behaviour that may be suggestive of mental illness.

In New Zealand, detention by police is limited to 6 h, by which time a medical examination should have taken place. Ideally, police should not enter premises without a warrant, if it is reasonably practicable to obtain one.

The same powers apply to involuntary patients who abscond or are absent without leave, although some states have specific schedules or orders to complete for this to be done. In general, once police become aware of the patient they are obliged to make attempts to find and return them to what can be viewed as lawful custody.

Prisoners with mental illness

Mental illness amongst people in prison is extremely prevalent, either as a cause or as a result of incarceration. New Zealand and most Australian states and territories include provisions for prisoners with mental illness within their mental health legislation. Whilst the health care of prisoners is generally managed within regional forensic systems, EDs in rural and less-well-resourced areas can become a site of care for prisoners with acute psychiatric illness.

The New Zealand Act states that prisoners with mental illness who require acute care can be transferred to a general hospital for involuntary psychiatric treatment, if the prison is unable to provide that care. Australian Acts in New South Wales, the Northern Territory and Victoria all include similar specific provisions for mentally ill prisoners to be able to access involuntary care in public hospitals if needed. The Victorian Act is most detailed in this matter, although in practice rarely relies on public hospitals due to the development of a stand alone forensic psychiatric hospital. Both Queensland and Western Australia enshrine the same principle of allowing prisoners access to general psychiatric treatment, although their legislation is less specific, whilst the Tasmanian, South Australian and ACT Acts do not mention prisoners at all. In all jurisdictions, there is significant overlap with other laws such as Crimes and Prisons Acts, which also mention health needs of prisoners.

Amendment of documents

New South Wales, Tasmania, Victoria, the Northern Territory and Western Australia specify that the amendment or correction of documents in relation to the admission of an involuntary patient is permissible, without the patient being discharged or returned to the recommending doctor or their status being changed. Western Australia does not specify a time limit for this to be done, but in Tasmania it must be done within 14 days, in Victoria and the Northern Territory within 21 days and in New South Wales within 28 days. The documents must be amended by the person who signed the original and not compromise the sufficiency of the grounds on which the involuntary order was made. The New Zealand Act makes no reference to the amendment of documents.

Offences in relation to certificates

Most states and New Zealand specify in their respective mental health acts that it is an offence to wilfully make a false or misleading statement in regard to the certification of an involuntary patient.

Some states (New South Wales, South Australia, the Northern Territory and Victoria), except in certain circumstances, also regard failure to personally examine or observe the patient as an offence.

Protection from suit or liability

New Zealand and all Australian states specify in their mental health acts that legal proceedings cannot be brought against doctors acting in good faith and with reasonable care within the provisions of the Mental Health Act relevant to their practice.

Information and patient transfer between jurisdictions

All Australian states and territories except for South Australia include special provisions for the apprehension, treatment and transfer of mentally ill patients from other jurisdictions. State governments can enter into agreements to recognize warrants or orders made under ‘corresponding law’ in other states or territories, as long as appropriate conditions are met within their own law. Thus, a patient under an involuntary detention or community treatment order in another state can be apprehended and treated under the corresponding law in a different jurisdiction. Authority is given to police and doctors to detain such patients, and information to facilitate assessment and treatment can be shared between states.

Deaths

Involuntary patients should be considered to be held in lawful custody, whether in an ED, as an inpatient in a general hospital or psychiatric hospital or as an AWOL. As such, the death of such a patient must be referred for a coroner’s investigation.

Controversies and future directions

United Kingdom

1 The provision of mental health services to EDs varies widely across the UK. Responsiveness of services remains an issue of contention, particularly in light of national 4 h targets for treatment in EDs. Representatives of the various Royal Colleges are currently writing a national strategy, which aims to set standards for what they describe as ‘emergency psychiatry’.

2 In the UK the most commonly used places of safety for individuals deemed to be a danger to themselves or the public are EDs, police stations and psychiatric units. Concern exists about the suitability of EDs for acting as places of safety. The Royal College of Psychiatrists jointly with the British Association for Emergency Medicine stated in 1996 that EDs were inappropriately staffed and equipped to supervise such individuals. However, the National Service Framework on Mental Health states that hospitals should be used in preference to police stations. To date, there has been no national consensus on the future use of the ED as a place of safety. Currently, individual departments are entering into local policy agreements with other agencies on their use.

3 As the specialty of emergency medicine expands, health professionals such as emergency nurse practitioners and paramedics are increasingly making clinical decisions about patients. This presents a challenge to the specialty in ensuring that all are appropriately trained and informed of the law relating to patients with mental health problems. It is vital that training and education continues to be central to delivering an appropriate service in often difficult circumstances.

4 In 2004, the National Institute for Health and Clinical Excellence (NICE) published a guideline on the treatment and prevention of self-harm focusing on care in the ED. It stressed the importance of staff attitudes towards these patients. Patients who have self-harmed reported frequently being treated not only with a lack of respect, as ‘time wasters’, but at times receiving punitive treatment at the hands of ED staff.

Australasia

1 Greater uniformity between the mental health legislation of Australian states and territories is desirable from both a patient’s and a healthcare provider’s perspective. Whilst there has been some move towards commonality with recognition of ‘corresponding laws’, great disparity still exists in some areas between jurisdictions. These differences could be overcome without compromising the fundamental principles of mental health legislation in the Australasian region.

2 More legal recognition of cultural and language difference is required as Australia and New Zealand become home to increasingly diverse populations. In particular, refugees and people from areas exposed to warfare and torture have specific mental health needs that should be accounted for within progressive legislation. Better acknowledgement of indigenous mental health issues is also an area requiring legislative improvement.

3 Police are given great powers within Australasian laws to apprehend and detain mentally unwell people, yet lack a sophisticated knowledge of mental illness. Greater education and collaborative work between police and healthcare providers, especially those working in EDs, should lead to more humane and patient-focused provision of care.

4 The use of physical restraints as a means of detaining mentally unwell people varies greatly in EDs throughout the region. Whilst many jurisdictions allow for physical restraints, the interpretation and practice of the law in various regions show remarkable disparity. From a human rights perspective, there needs to be some uniformity in the approach to physical restraint. This would incorporate flexibility and reflective practice and give primacy to ‘least restrictive’ principles.

References

1 World Health Organisation. Mental Health Care Law: Ten Basic Principles. Geneva: World Health Organisation, Division of Mental Health and Prevention of Substance Abuse, 1996.

2 Forrester K, Griffiths D. Essentials of law for health professionals, 2nd edn. Sydney: Elsevier, 2005.

3 Australian Human Rights and Equal Opportunity Commission. Human Rights and Mental Illness. In Report of the national inquiry into the human rights of people with mental illness. Canberra: Australian Government Publishing Service; 1993.

Australasia

ESSENTIALS

1 The function of the coroner is to investigate and report on a person’s death. Where possible, the coroner must determine the identity of the deceased, the circumstances surrounding the death, the medical cause of death and the identity of any person who contributed to that death. The coroner may also comment on matters of public health and safety.

2 Each jurisdiction has a number of defined circumstances in which a death must be reported to the coroner. Commonly these are when the death appears to have been caused by violent, unnatural or accidental means or has occurred in suspicious circumstances or when the cause is unknown.

3 Preparation for a coronial investigation starts as soon as someone dies in reportable circumstances. The body, medical notes and details of all investigations and procedures may be required by the coroner. Accurate and complete medical notes are an essential part of this process.

4 A coronial inquest is a public inquiry into a death to which a medical practitioner may be subpoenaed. The doctor may be required to give evidence of fact regarding what happened or expert opinion.

5 The findings of a coronial inquest in which the performance of an emergency physician or department has been examined should be carefully scrutinized. They may contain important statements regarding the practice of the emergency physician, the functioning of the emergency department and the emergency medical system as a whole.

6 Coronial findings may be used constructively to effect positive change within a department, institution or system.

Introduction

The function of the coroner is to investigate and report the circumstances surrounding a person’s death. A coronial inquest is a public inquiry into one or more deaths conducted by a coroner within a court of law. Legislation in each Australian state and territory defines the powers of this office and the obligations of medical practitioners and the public towards it. The process effectively puts details concerning a death on the public record and is being increasingly used to provide information and recommendations for future injury prevention.

As many people die each year either in an ED or having attended an ED during their last illness, it is almost inevitable that emergency physicians will become involved in the coronial process at some stage during their career. Such involvement may be brief, such as the discharge of a legal obligation by reporting a death, or may extend further to providing statements to the coroner regarding deaths of which they have some direct knowledge. Later, the coroner may require them to appear at an inquest to give evidence regarding the facts of the case, and possibly their opinion. Occasionally, the coroner requires a suitably experienced emergency physician to provide an expert opinion regarding aspects of a patient’s emergency care.

Although the inquisitorial nature of the coronial process is sometimes threatening to medical practitioners, their involvement is a valuable community service. In addition, they may obtain important information regarding aspects of a patient’s clinical diagnoses and emergency care.

Legislation

The office of the coroner, and its functions, procedures and powers, is created by state and territory legislation. The legislation also creates obligations on medical practitioners to notify the coroner of reportable deaths, and to cooperate with the coroner by providing certain information in the course of an inquiry. The normal constraints of obtaining consent for the provision of clinical information to a third party do not apply in these circumstances.

The coroner is vested with wide-ranging powers to assist in obtaining information. In practice, the police are most commonly used to conduct the investigation. Under the various Coroners Acts they have the power to enter and inspect buildings or places, take possession of and copy documents or other articles, take statements and require people to appear in court. The coroner has control of a body whose death has been reported and may direct that an autopsy be performed.

As each Australian state and territory legislation is different, emergency physicians must be familiar with the details in their particular jurisdiction. The current legislation in each state and territory is the following:

Australian Capital Territory – Coroners Act 1997

New South Wales – Coroners Act 1980

New Zealand – Coroners Act 1988

Northern Territory – Coroners Act 1993

Queensland – Coroners Act 1958–1977

South Australia – Coroners Act 1975

Tasmania – Coroners Act 1995

Western Australia – Coroners Act 1996

Victoria – Coroners Act 1985.

Reportable deaths

Most deaths that occur in the community are not reported to a coroner and, consequently, are not investigated. The coroner has no power to initiate an investigation unless a death is reported. If a medical practitioner is able to issue a medical certificate of the cause of death, the Registrars-General of that state or territory may issue a death certificate and the body of the deceased may be lawfully disposed of without coronial involvement.

In general, to issue a certificate of the cause of death, a doctor must have attended the deceased during the last illness, and the death must not be encompassed by that jurisdiction’s definition of a reportable death. It is essential that every medical practitioner has a precise knowledge of what constitutes a reportable death within the jurisdiction.

It is uncommon for a doctor who is working in an ED to have had prior contact with a patient during the last illness. Therefore, even if sure of the reason why the patient died, the doctor is often unable to complete a medical certificate of the cause of death. It is quite permissible, and even desirable, under these circumstances, to contact the patient’s treating doctor to inquire as to whether that doctor is able to complete the certificate. This process reduces the number of deaths that must be reported and assists families who may be distressed about coronial involvement.

All Australian Coroners Acts contain a definition of the deaths that must be reported. Although the precise terminology varies, there are many similarities between them. In general, each Act has provisions for inquiring into deaths that are of unknown cause or that appear to have been caused by violent, unnatural or accidental means. Many Acts also refer to deaths that occur in suspicious circumstances, and some specifically mention killing, drowning, dependence on non-therapeutic drugs and deaths occurring while under anaesthesia. The Tasmanian Act goes further, to specify deaths that occur under sedation.

As an example, the Victorian Coroners Act 1985 defines a reportable death as one (1) where the body is in Victoria; (2) that occurred in Victoria; (3) the cause of which occurred in Victoria; (4) of a person who ordinarily resided in Victoria at the time of death; (5) that appears to have been unexpected, unnatural or violent, or to have resulted, directly or indirectly, from accident or injury; (6) that occurs during an anaesthetic; (7) that occurs as a result of an anaesthetic and is not due to natural causes; (8) that occurs in prescribed circumstances; (9) of a person who immediately before death was a person held in care; (10) of a person whose identity is unknown; (11) that occurs in Victoria where a notice under Section 19(1)(b) of the Registration of Births Deaths and Marriages Act 1959 has not been signed; or (12) that occurs at a place outside Victoria where the cause of death is not certified by a person who, under the law in force in that place, is authorized to certify that death.

Despite the seemingly straightforward definitions given in the various Acts, there are many instances where it may not be clear whether a death is reportable or not. Emergency physicians are often faced with situations where there is a paucity of information regarding the circumstances of an event, and where the cause of death may be difficult to deduce. Correlation between the clinical diagnoses recorded on death certificates and subsequent autopsies has been consistently shown to be poor. What exactly constitutes unexpected, unnatural or unknown is open to debate and may require some judgement. In all cases the coroner expects the doctor to act with common sense and integrity. If at all in doubt it is wise to discuss the circumstances with the coroner or assistant, and to seek advice. This conversation and the advice given must be recorded in the medical notes.

The process of reporting a death is generally a matter of speaking to the coroner’s assistants (often referred to as coroner’s clerks), who will record pertinent details and, if necessary, investigate. The report should be made as soon as practicable after the death. A medical practitioner who does not report a reportable death is liable to a penalty.

Even though coroners’ offices and the police work closely together, reporting a death to the coroner is not necessarily equivalent to reporting an event to the police. If it is possible that a person has died or been seriously injured in suspicious circumstances, then it is prudent to ensure that the police are also notified.

A coronial investigation

After a death has been reported, the coroner or designated assistant may initiate an investigation. This is most commonly conducted by the police assisting the coroner, with an autopsy conducted by a forensic pathologist.

The body, once certified dead, becomes part of that investigation and should be left as far as possible in the condition at death. If the body is to be viewed by relatives immediately it is often necessary to make it presentable. This must be done carefully, so as to not remove or change anything that may be of importance to the coroner. If a resuscitation was attempted all cannulae, endotracheal tubes and catheters should be left in situ. All clothing and objects that were on (or in) the deceased should be collected, bagged and labelled. All medical and nursing notes, radiographs, electrocardiographs and blood tests should accompany the body if it is to be transported to a place as directed by the coroner.

Medical notes taken during or soon after the activity of a busy resuscitation are often incomplete. It is not easy to accurately recall procedures, times and events when the main task is to prevent someone from dying. Similarly, after death there are many urgent tasks, such as talking to relatives, notifying treating or referring doctors, and debriefing staff. It is essential, however, that the documentation is completed as accurately and thoroughly as possible. The notes must contain a date and time and clearly specify the identity of the author. If points are recalled after completing the notes, these may be added at the end of the previous notes, again with a time and a date added. Do not under any circumstances change or add to the body of the previous notes.

In addition to completing the medical notes, a medical practitioner may be requested to provide a statement to the coroner regarding the doctor’s involvement with the deceased and an opinion on certain matters. Such a statement should be carefully prepared from the original notes and written in a structured fashion, using non-medical terminology where possible. The statement often gives the opportunity for the medical practitioner to give further information to the coroner regarding medical qualifications and experience, the position fulfilled in the department at the time of the death, and a more detailed interpretation of the events. If a statement is requested from junior ED staff, it is strongly advisable for these to be read by someone both clinically and medicolegally experienced.

Providing honest, accurate and expeditious information to relatives when a death occurs assists in preventing misunderstandings and serious issues arising in the course of a coronial investigation. Relatives vary enormously in the quantity and depth of medical information they request or can assimilate after an unexpected death. It is wise not only to talk to the relatives present at the death but also to offer to meet later with selected family members. Clarification with the family of what actually occurred, what diagnoses were entertained and what investigations and procedures were performed is not only good medical practice but can allay concerns regarding management.

If a significant diagnosis was missed or inappropriate or an inadequate treatment given, or a serious complication of an investigation or procedure occurred, assistance and advice from the hospital insurers and medical defence organizations should be sought before talking to the family. However difficult it may be, it is far better that the family is aware of any adverse occurrences before the inquest than for them to harbour suspicions or to get a feeling something is being covered up. The coroner is far more likely to be sympathetic to a genuine mistake or omission when it has been discussed with the family and the hospital has taken steps to prevent a recurrence.

Expert opinion

Having gathered all the available information regarding a death the coroner may decide that expert opinion is necessary on one or more points. Commonly, this involves the standard of care afforded to the deceased. It may, however, also include issues such as the seniority of doctors involved, the use of appropriate investigations, the interpretation of investigations and the occurrence of complications of a procedure. The coroner relies heavily on such opinions for the findings, and the selection of an appropriate expert is essential.

The person selected by the coroner to give this opinion should possess postgraduate specialist medical qualifications and be broadly experienced in the relevant medical specialty. For events occurring in the ED, a senior emergency physician with over 5 years of experience is usually most appropriate. The specialist medical colleges may be requested to nominate such a person.

The emergency physician requested to give expert opinion must have access to be able to review all of the available relevant information. Such persons must also consider themselves adequately qualified and experienced to provide an opinion and to answer any specific questions the coroner may have requested to be addressed. The doctor must have the time and ability to provide a comprehensive statement and to appear as a witness at the inquest if requested and to act impartially. The doctor should decline involvement if an interest in the outcome of the case could be implied.

A coronial inquest

A coronial inquest is a public inquiry into one or more deaths. Deaths may be grouped together if they occurred in the same instance, or in apparently similar circumstances. The purpose of the inquest is to put findings on the public record. These may include the identity of the deceased, the circumstances surrounding the death, the medical cause of death, and the identity of any person who contributed to the death. The coroner may also make comments and recommendations concerning matters of health and safety. In some jurisdictions these are termed ‘riders’. In addition, as His Honour B.R. Thorley pointed out, the inquest serves to:

… include the satisfaction of legitimate concerns of relatives, the concern of the public in the proper administration of institutions and matters of public and private interest …

The inquest does not serve to commit people for trial or to provide information for a subsequent criminal investigation.

With broad terms of reference, and the ability to admit testimony that may not be allowed in criminal courts, inquests interest many people, not only those who may have been directly involved. They are often highly publicized media events and may provoke political comment, especially where government bodies are involved. A medical practitioner served a subpoena to attend should prepare carefully, both individually and in conjunction with the hospital.

Preparation for an inquest begins at the time of the death. Complete and accurate medical notes, together with a carefully considered statement, provide a solid foundation for giving evidence and handling any subsequent issues. Statements containing complex medical terminology, ambiguities or omissions only serve to create confusion. Discuss the case with colleagues who are not directly involved, the hospital medical administration and a medical defence organization. Legal advice and representation are essential to any doctor appearing in an inquest, even though the case may appear straightforward. It is wise for any areas of damaging evidence or potential conflict to be identified and managed accordingly.

Appearing at an inquest can be a stressful event, especially if on a review of the circumstances a doctor’s actions or judgement may be called into question. Professional peer support, as well as legal advice, should be offered to all medical staff. Simple actions, such as a briefing on court procedures and some advice on how to deal with cross-examination, can be of immense value.

A coroner’s court is conducted with a mix of ‘inquisitorial’ and ‘adversarial’ legal styles. It is inquisitorial in that the coroner may take part in direct proceedings and can question witnesses and appoint court advisers. It is adversarial in that parties with a legitimate interest can be represented in proceedings and can challenge and test witnesses’ evidence, especially where it differs from what they would like presented. The ‘rules of evidence’ are more relaxed in the coroner’s court than in a criminal court. Hearsay evidence – that is, evidence of what someone else said to a witness – is generally admissible. Despite these differences, it is important to remember that it is no less a court than a criminal court and demands the same degree of respect and professional conduct one would accord to the latter.

Coronial findings

At the conclusion of an inquest the coroner makes a number of findings directed at satisfying the aims of that inquest. These findings are made public and are often of interest to those who are directly involved, as well as to a wider audience.

The findings of an inquest in which the conduct of a particular emergency physician, ED or hospital have been scrutinized will be of particular interest. Although it is always pleasing to have either positive or a lack of negative comment delivered in the finding, criticism of some aspect of the conduct of an individual, department, hospital or the medical system in general is not uncommon. Unfortunately, it is often this criticism that attracts the most public attention and, somewhat unfairly, the public perception of our acute healthcare system is shaped by the media’s attention to coronial findings.

In the recent past, coroners have commented on inadequate training, experience and supervision of junior doctors, inadequate systems of organization within departments and poor communication between doctors and family members.

Although adverse or critical findings have no legal weight or penalties attached to them, they are in many respects a considered community response to a situation in which the wider population has a vested interest. Used constructively, they can be extremely useful in convincing hospital management that a problem exists and beginning a process for effecting positive change within a department or institution.

UK

ESSENTIALS

1 The coroner, or procurator fiscal in Scotland, is responsible for the investigation of circumstances surrounding death in particular situations.

2 Emergency physicians should be familiar with the types of death which require referral to the coroner/procurator fiscal. These include deaths due to any trauma, poisoning or other unnatural causes, deaths related to medical procedures and deaths whose cause is unknown. Deaths that occur whilst detained under the Mental Health Act or in custody of police should also be reported. Several other specific circumstances exist, and, in doubtful cases, discussion with the district coroner’s office should occur.

3 The body remains under the control of the coroner once death has been reported. Medical devices should be left in situ and the body should receive minimal handling, particularly in suspicious or violent deaths, in order to preserve forensic trace evidence.

4 Concise documentation of the clinical circumstances surrounding the death may direct the pathologist towards a detailed examination of the relevant organ or system and acts as a solid basis for the emergency physician for the preparation of a subsequent statement and examination at an inquest.

5 Emergency physicians should seek assistance from senior colleagues and legal advice when asked to prepare a statement for the coroner or attend an inquest.

Introduction

The investigation into circumstances surrounding deaths is an important part of civilized society. Accurate recording of cause of death serves many purposes including accurate disease surveillance, the detection of secret homicide and the detection of potentially avoidable factors that have contributed to a death. Various death investigation systems exist around the world. The UK uses the coronial system, Scotland the procurator fiscal. By virtue of the patient population encountered by emergency physicians, and the types of deaths that are subject to investigation, emergency physicians may expect to find themselves in contact with either the coroner or the procurator fiscal system during their working lives, thus necessitating an understanding of the workings of these systems.

History of the coroner

The history of the coroner’s office is an interesting reflection of events that shaped our civilization and is in constant evolution. The Shipman Inquiry is the most recent event that will shape the coroner’s role. The office of the coroner was established in 1194 and its primary function then was that of protection of the crown’s pecuniary interests in criminal proceedings. The coroner was involved when a death was sudden or unexpected or a body was found in the open; however, aside from the duty to ensure the arrest of anyone involved in homicide, the coroner held a significant role in the collection of the deceased’s chattels and collection of various fines.¹

Introduction of the Births and Deaths Registration Act in 1836, mandated registration of all deaths before burial could legally occur. This may have arisen out of concern regarding the accurate statistical information concerning deaths, but also concern about hidden homicide. Another Act introduced the same year enabled coroners to order a medical practitioner to attend an inquest and perform an autopsy in equivocal cases. The Coroners Act of 1887 saw a shift of emphasis from protection of financial interests to the emphasis that remains today – the medical cause of death and its surrounding circumstances with eventual community benefit in mind.

The Broderick committee was appointed in 1965 to review death certification in response to adverse publicity about inquests and pressures to improve death certification. Their report published in 1971 contained 114 recommendations, many of which were enacted. Table 25.2.1 lists the reasons the Broderick Committee considered the purpose of an inquest.²

Table 25.2.1 Reasons for an inquest (according to the Broderick Committee)

• To determine the medical cause of death

• To allay rumours or suspicion

• To draw attention to the existence of circumstances which, if unremedied, might lead to further deaths

• To advance medical knowledge

• To preserve the legal interests of the deceased person’s family, heirs or other interested parties ²

The current Coroners Act (1988) states that a coroner shall hold an inquest into a death when there is ‘… reasonable cause to suspect that the deceased has died a violent or unnatural death, has died a sudden death of which the cause is unknown, or has died in prison or in a such place or circumstances as to require an inquest under any Act’.³

Structure of the coroner system in the UK

Coroners are independent judicial officers who mostly have a legal background (some also have a medical background) and must possess at least 5 years of postqualification experience. They are responsible only to the Crown, this being an important safeguard for society; however, their administration is largely the responsibility of the Home Office. They must work within the laws and regulations that apply to them: The Coroners Act 1988, Coroners Rules 1984 and the Model Coroners Charter. There are approximately 148 coroner’s districts throughout England and Wales, and each district has a coroner and a deputy and possibly several assistant deputy coroners. Coroners are assisted in their duties by coroner’s officers, who are frequently police officers or ex-police officers, whose work is dedicated solely to coronial matters. This follows long-established practice and has probably arisen because of the significant proportion of cases in which police are the notifying agent. The nature of a coronial investigation also frequently requires a person to possess knowledge about legal matters and skill in information gathering. From a practical viewpoint, the coroner’s assistants may be responsible for performing such duties as attending the scene of a death, arranging transport of the body to the mortuary, notification of the next of kin and obtaining statements from relevant parties. Clearly, variation in the structure of the service between regions is inevitable and reflects the size, composition and workload within the district.⁴

Overview of the coronial process

Upon notification of a death, the coroner makes initial inquiries and may direct a pathologist to perform a postmortem. Sometimes it becomes clear at this early point that the death is a natural one and does not fall within the Coroners Act, thus no inquest is required and a death certificate is issued. In other circumstances, further investigations occur and relevant information is gathered. If the coroner is subsequently satisfied that the death is natural, again no inquest is required. In other cases, or in certain prescribed circumstances, an inquest is held. At the conclusion of an inquest, a finding or verdict is delivered. This verdict must not be framed in a way that implies civil or criminal liability.

Reportable deaths

There is no statutory obligation in the UK for a doctor or any member of the public to report certain deaths to the coroner. However, an ethical responsibility exists and it is recognized practice to do so in particular circumstances. A 1996 letter from the Deputy Chief Medical Statistician to all doctors outlined these circumstances (Table 25.2.2).⁵

Table 25.2.2 Circumstances in which a death should be reported to the coroner

• The cause of death is unknown

• The deceased was not seen by the certifying doctor either after death or within the 14 days before the death

• The death was violent or unnatural or suspicious

• The death may be due to an accident (whenever it occurred)

• The death may be due to self-neglect or neglect by others

• The death may be due to an industrial disease or related to the deceased’s employment

• The death may be due to an abortion

• The death occurred during an operation or before recovery of the effects of an anaesthetic

• The death may be a suicide

• The death occurred during or shortly after detention in police or prison custody

Each booklet of medical death certificates also contains a reminder of the deaths that a coroner needs to consider. The list is not exhaustive. Other circumstances include where the deceased was detained under the Mental Health Act, the death may be related to a medical procedure or treatment, or there is an allegation of medical mismanagement.

Scotland

In Scotland, the role of death investigation is undertaken by the procurator fiscal’s office, which is also responsible for the investigation and prosecution of crime. The spectrum of deaths investigated is essentially the same as in England and Wales; however, more specific guidelines regarding deaths possibly related to medical mismanagement are provided (Table 25.2.3).

Table 25.2.3 Specific guidelines regarding deaths related to medical management in Scotland

• Deaths that occur unexpectedly having regard to the clinical condition of the deceased prior to receiving medical care

• Deaths that are clinically unexplained

• Deaths seemingly attributable to a therapeutic or diagnostic hazard

• Deaths that are apparently associated with lack of medical care

• Deaths that occur during the actual administration of general or local anaesthetic

How to report a death

Having determined that a death is reportable, the emergency physician should contact the district coroner’s office and notify the details of the deceased. Where doubt exists about the necessity or, otherwise, to report a death, a doctor should contact that office to discuss the matter further. This may avoid undue distress to relatives should the death be subsequently referred by the registrar of births and deaths. The discussion and subsequent decision should be recorded in the patient’s clinical notes. A death certificate should not be written.

Handling the body

There appear to be no official guidelines in place regarding handling of the body once death has been reported to the coroner; however, this aspect may be an important component of the subsequent investigation. Any therapeutic and monitoring devices such as endotracheal tubes, intercostal catheters and intravascular catheters should be left in situ, as determination of their correct placement or otherwise may be relevant to the death investigation. In a similar line, it may be important to isolate any equipment (e.g. intravenous infusion pump devices) suspected of being faulty and contributing to the death. In circumstances of suspicious, or violent deaths in particular, the body should be not be handled unnecessarily, nor should the body be washed. Important trace evidence that may be crucial for subsequent criminal proceedings could conceivably be lost. For example, in deaths involving firearms, it may be useful for a forensic scientist to swab the deceased’s hands for gunshot residue to help confirm or refute the notion of a self-inflicted injury.

Clothing removed from the deceased during resuscitation efforts should be set aside and preferably placed into individual paper bags. Any remaining clothing on the deceased should be left in situ.⁶ Blood taken during resuscitation attempts, regardless of whether it was processed or not, should not be discarded, but kept refrigerated and its existence indicated to the coroner. The examination of antemortem blood samples can provide valuable information, particularly with respect to electrolyte and glucose concentrations, drug concentrations and in deaths possibly attributable to anaphylaxis, tryptase assay.⁷

Documentation

The clinical record of the deceased will usually accompany the body to the mortuary and is frequently perused by the pathologist. Clinical information is crucial in consideration of the cause of death and may help direct the pathologist towards an appropriately detailed examination of the relevant system or organ. The guidelines for appropriate documentation in reportable cases are really the same that apply in medical record-keeping in general. They should be made contemporaneously, or as close to as is possible in a resuscitation environment. Each entry should be dated and the time recorded. They must be legible, objective and the sources of information identified. Any errors made should be crossed out, dated and signed. Likewise, if information comes to hand or is recalled at a later date, that entry should be dated and timed. Never add an entry or alter notes without identifying that it is, indeed, so. Finally, the author’s name and designation should be clear, and all entries signed.

Information for families

The next-of-kin of the deceased must be informed that the death has been reported to the coroner and the requirement or reasons for doing so. It is important to inform them that police may be involved in the investigation of the death on behalf of the coroner, but that this does not imply a criminal wrong-doing. An information leaflet explaining the coroner’s work and rights of the next-of-kin is available from the Home Office ⁸ and should be available in every ED to pass on to bereaved families. Another useful publication written for bereaved families provides information regarding postmortems and is available from the Royal College of Pathologists.⁹

Postmortems

The coroner may decide upon the initial report of a death that a postmortem is necessary in order to determine the cause of death or resolve an issue relevant to a coronial inquiry. In the year 2000, postmortem examinations were conducted in 62% of cases reported to the coroner, continuing a steady downward trend in the proportion of postmortems conducted out of reported cases.¹⁰ Having decided upon the necessity for a postmortem, the coroner directs a pathologist to conduct a postmortem. The Coroners Act states that, in fact, the coroner may ‘direct any legally qualified medical practitioner’ to conduct the postmortem; however, the Coroners Rules 1984 direct that they should be performed ‘whenever practicable by a pathologist with suitable qualifications and experience’, and, in practice, most are conducted by Home Office accredited forensic pathologists. Clearly, if the standard of medical care provided by the hospital in which the death occurred is in question, it is inappropriate for a pathologist employed by that hospital to conduct the postmortem.

Consent from relatives to conduct the postmortem is not required in coroner’s cases. In the event that relatives object to the postmortem examination, the coroner may delay it to allow them time to obtain legal advice. However, if the death does fall within the coroner’s jurisdiction, and is deemed to be necessary, their objection would be over-ridden. Relatives may request a second postmortem; however, this seldom occurs in practice.

The coroner must, in theory, notify certain persons, including the usual medical attendant of the deceased or the hospital in which the death occurred, of the time and date of the postmortem (Rule 7, The Coroners Rules 1984). In practice, this tends to occur when a desire to be represented at the examination has been expressed to the coroner, and in that instance a nominated, medically qualified representative (not a doctor whose practice may be in question) may be present to observe the postmortem.

The issue of tissue retention at autopsy has received recent worldwide attention. Rule 9 of the Coroners Rules 1984 is quite broad, allowing the pathologist to retain ‘material which in his opinion bears upon the cause of death, for such a period as the Coroner sees fit’. Guidelines issued by The Royal College of Pathologists ¹¹ recommend that, in coroner’s cases, clear protocols between the coroner and the pathologist should exist, and retention of tissues outside of the above-mentioned context should occur with the agreement of both the relatives of the deceased and the coroner.

Preparing a statement for the coroner

The coroner may request a statement from a doctor involved in the care of the deceased and, while there is no obligation to comply with this request, it is generally in the doctor’s interest to do so. The coroner, otherwise, has no option but to compel the doctor to attend court and answer questions. A statement, therefore, that has been carefully prepared with due thought to any issues identified may, indeed, avert the need for an inquest or at least will act as a solid base upon which the examination in court will occur. It is important that the doctor writing the statement understands the circumstances of the death; thus, access to the postmortem report is often vital and is allowable under Rule 57 of the Coroners Rules. It is generally advisable, except perhaps in circumstances where it is clear that simple, factual background information only is required, to seek legal advice early when requested to provide a statement or attend an inquest.

The statement should be typewritten and contain the author’s qualifications, work experience and current employment post. The sources from which the report is prepared (e.g. clinical notes and pathology reports) should be acknowledged, and it should be set out in a logical manner in chronological order. Technical terms should be qualified with an explanation readily understood by a lay person. It is advisable to have a senior colleague review the statement before submission to the legal representative for final review. The final statement should be dated and signed, and a copy kept for future reference.

Inquest

An inquest is a public hearing at which the identity of the deceased and how, when and where the deceased came by his/her death are to be determined. In the year 2000, only 12% of reported deaths proceeded to inquest, the remainder being examined ‘in chambers’. Inquests (or fatal accident inquiries in Scotland) are mandatory in certain prescribed circumstances, including deaths in prison or police custody, and deaths resulting from workplace incidents. In certain circumstances, inquests are held with a jury that is responsible for the final verdict.

The inquest is inquisitorial in nature, where the truth surrounding the circumstances of the death is sought, rather than adversarial, where two or more parties have a particular claim to prove. As with the preparation of a statement for the coroner, it is wise for a medical witness to seek legal advice and possibly representation prior to attendance at an inquest. The legal arena in which they are held is unfamiliar territory to most doctors and they frequently attract intense media scrutiny; thus, involvement in an inquest may be a daunting and stressful experience requiring support from colleagues and friends.

Controversies and future directions

1 The current coronial system in the UK is under fundamental review.

References

1 Knapman P, Powers M. The law and practice on coroners. Chichester: Barry Rose, 1985.

2 Cordner S, Loff B. 800 years of coroners: have they a future? Lancet. 1994;344:799-801.

3 Coroners Act. (c.13), 1988. http://www.hmso.gov.uk.

4 Tarling R. Coroner Service Survey: A Research and Statistics Directorate Report. London: Home Office, 1998.

5 Dorries C. Coroner’s courtsa guide to law and practice. Chichester: Wiley, 1999.

6 Dimond B. Death in accident and emergency. Accident and Emergency Nursing. 1995;3:38-41.

7 Burton J, Rutty G. The hospital autopsy, 2nd edn. London: Arnold, 2001.

8 Home Office. When sudden death occurscoroners and inquests. London: Home Office, 2002.

9 The Royal College of Pathologists. Examination of the body after deathinformation about post-mortem examination for relatives. The Royal College of Pathologists, London, 2000. http://www.rcpath.org.

10 Allen R. Deaths reported to coroners England and Wales 2000. London: Home Office Research Development and Statistics Directorate, 2000.

11 The Royal College of Pathologists. Guidelines for the retention of tissues and organs at post-mortem examination. The Royal College of Pathologists, London, 2000. http://www.rcpath.org.

25.3 Consent and competence – the Australasian and UK perspectives

Edward Brentnall, Helen L. Parker

ESSENTIALS

1 Patient consent is essential for medical treatment.

2 Consent may be implied, verbal or written.

3 Consent must be informed, specific and freely given, and must cover that which is actually done.

4 The patient must be competent to give the consent or to refuse.

5 In the emergency department it is often necessary to give treatment without waiting for consent, for instance when the patient is unconscious.

Consent

All medical treatment is based on law and ethical principles. The four basic ethical principles in medicine are often quoted as follows:

• Beneficence: the duty to do the best for the patient.

• Autonomy: the right of individuals to make decisions on their own behalf.

• Non-maleficence: the duty to do no harm to the patient.

• Justice: the fair distribution of resources, incorporating the notion of responsibility to the wider community.

There is therefore a requirement that patients consent to treatment, provided they are competent to do so. In situations where an intervention is proposed, agreement of the patient should therefore be sought. The term ‘informed decision-making’ is preferred by some to ‘informed consent’ as it reflects consideration of patient autonomy.¹ It is also important to consider consent as a two-way process, with an exchange of knowledge between a patient and a doctor.² The concepts of competence, provision of adequate information and the voluntariness with which consent is given are crucial in the consideration of obtaining valid consent or seeking an informed decision. Technically, treatment without consent may be considered an assault. This makes it extremely important that consent is obtained before treatment starts.

The patient has the right to self-determination. Consent lies at the heart of the medical contract between the doctor and the patient. Medical investigation and treatment are essentially voluntary acts, which the patient consents to the doctor performing. Great attention has been placed on the issue of consent since the Rogers v Whittaker case (High Court of Australia 1992) in which consent given by the patient was held to be invalid. The issue revolved around whether or not disclosure by the surgeon was sufficiently detailed to allow the consent to be informed.

Consent may be given in several ways: implied, verbal or written.

If the patient voluntarily presents to the emergency department then some degree of consent is implied. If a doctor says ‘put your arm out straight because I need to take some blood for a test’ then this may be taken as implied consent. However, this would not cover the insertion of an intercostal catheter, for instance, a much more invasive procedure. Such a procedure would usually need some explanation in order that the patient understood what was to be done before the consent was given. This would be verbal consent.

Written consent is often sought before more serious or prolonged procedures, such as surgery under anaesthesia. Written consent is not more valid than verbal, just easier to prove. However, it must be given after full explanation of what is to be done, the expected results, risks and the consequences if it is not done. In some ways, written consent is the most difficult to establish. It is impossible to cover every outcome. The difficulties lie with being specific and with the patient being informed. For simpler procedures, it may be better to have implied or verbal consent, rather than written consent.

Consent must be informed, specific and freely given and must cover that which is actually done. Informed consent (or decision-making) requires that clear, accurate and relevant information must be given to the patient. Legal judgements have defined the importance of considering what may be ‘material’ or ‘significant’ to that particular individual when disclosing information. Essentially, the patient should be provided with information regarding (1) treatment options, (2) the foreseeable consequences and side effects of any proposed treatment or intervention, and (3) the consequences of not proceeding with the advised treatment. This information should be conveyed in unambiguous terms and in a manner that is likely to be understood by the patient. Language and other communication needs must be met, and there must be an opportunity for the patient to ask questions and to reflect on the information given. The information should be given by the doctor responsible for providing the intervention or a delegate who is suitably qualified and has sufficient knowledge of the proposed intervention.

It is appropriate for a doctor to give advice as to the best clinical options and for the reasons for this professional opinion. Such an opinion is frequently expected and desired by patients and cannot be considered as coercive unless the information has been presented in a manipulative fashion in order to elicit a particular choice.

Competence

The patient must be competent to give the consent or to refuse.

For consent to be valid it must be given by a person who has the capacity to make that decision. The assessment of the competence, or capacity of adults to make decisions on their own behalf, is a functional one that requires more than cognitive testing with a tool such as the mini-mental status examination, although this should be performed and documented as part of the assessment process. Assessment of competence should be sought and conducted by the doctor proposing the treatment or investigation. The essential elements required to demonstrate competence are:

• the ability to maintain and communicate a choice

• the ability to understand the relevant information

• an ability to appreciate the situation and its consequences

• the ability to manipulate the information in a rational fashion.³

Questions that may be of assistance in assessing competence are listed in Tables 25.3.1 and 25.3.2. Third parties, such as relatives, are unable to legally provide consent, although it is frequently assumed that they are. However, it is a long-established practice and frequently a useful exercise to involve relatives in the process of determining what the patient would have wanted in a particular circumstance. They may also provide valuable information during the process of competence assessment regarding a person’s set of values and beliefs, and usual behaviour, particularly if the patient appears to have elected a path at odds with a previously expressed wish or one that might appear imprudent or irrational. A list of people considered to have parental responsibility is provided in Table 25.3.3.

Table 25.3.1 Questions for determining competence

Comprehension

Ask patient to recall and paraphrase information related to proposed treatment, including risks and benefits of treatment, alternative treatment and consequences of no treatment at all. Retest later to check for stability

Belief

Tell me what you really believe is wrong with your health now

Do you believe that you need some kind of treatment?

What is the treatment likely to do for you?

Why do you think it will have that effect?

What do you believe will happen if you are not treated?

Why do you think the doctor has recommended this treatment for you?

Weighing

Tell me how you reached the decision to accept (reject) treatment

What things were important to you in reaching the decision?

How do you balance those things?

Choice

Have you decided whether to go along with your doctor’s suggestion for treatment?

Can you tell me what your treatment decision is?

Table 25.3.2 Simplified questions for assessing competence

What is your present physical condition?

What is the treatment being recommended for you?

What do you and the doctor think might happen to you if you decide to accept the treatment?

What do you and your doctor think might happen if you decide not to accept the recommended treatment?

What are the alternatives available (including no treatment) and what are the possible consequences of accepting each?

Table 25.3.3 People considered to have parental responsibility

The child’s parents if married to each other at the time of conception or birth

The child’s mother, but not the father, if they were not so married, unless the father has acquired parental responsibility via a court order or a parental responsibility agreement or the couple subsequently marry

The child’s legally appointed guardian

A person in whose favour the court has made a residence order concerning the child

A local authority designated in a care order in respect of the child

A local authority or other authorized person who holds an emergency protection order in respect of the child

Patients may make an advance statement or living will detailing their wishes for medical treatment should they become incapacitated at a later date. This may take the form of a written document or witnessed oral statement. It is legally binding provided the patient is an adult and was competent at the time made and the statement clearly applies to the current circumstances.⁴ If doubt exists about its validity, a court ruling should be sought.

Patients who might not be able to consent

Children and adolescents

The legal age of consent in Australasia has changed in the last quarter of a century from 21 to 18 years and in some circumstances to 16 years or less. This has occurred against a background of differing ages at which persons may vote, buy tobacco or alcohol, drive cars or engage in sexual activity.

The most important factor to be considered by the emergency physician is the competence of the patient to understand what is wrong and what the treatment entails. This has more to do with intellectual and emotional maturity than chronological age. It would be reasonable for a 14-year-old girl to consent to appendicectomy, but quite unreasonable to expect the same person to understand the consequences of a hysterectomy.

In a genuine emergency the care of the patient is the most important factor and the absence of a parent or guardian is not a bar to an emergency procedure. Should treatment of a minor be required and valid consent not obtainable, the emergency physician must document the steps taken to obtain consent and the reason why the treatment must be carried out. If at all possible the opinion of a second doctor should also be attached, provided that the second doctor approximates the first in seniority. Many hospitals require that in such circumstances the director of clinical services or delegate give ‘approval’. This is simply a means of ensuring that the hospital is aware of the situation and accepts responsibility.

A special situation occurs for children whose parents hold religious beliefs that proscribe blood transfusion or the administration of blood products. This creates a situation where the child is incompetent and the parents do not consent. There is now almost standard legislation that allows the attending doctors to certify that blood transfusion is required to sustain life, and to then administer the treatment in the face of active opposition from the parents. The relevant legislation protects the doctor who acts out of a duty of care to the patient.

Intellectually impaired

For consent to be valid, the patient must be able to understand the nature of the condition, the options available and the treatment being recommended. In addition there must be an understanding of the material risks and the possible outcome of any potential treatments. The mildly disabled may be able to satisfy these criteria, but the more severely disabled will not be in a position to give valid consent. In the latter situation the guardian or Guardianship Board would have to be involved in all but the most urgent cases.

In every state and territory of Australia there is legislation that covers the protection and administration of incompetent patients. All of these bodies are available to give timely help and, if necessary, hold a formal hearing. Whenever possible, this avenue of assistance should be used. The boards have the authority to conduct hearings, receive evidence and make decisions on behalf of incompetent persons. These decisions have the authority of law and provide protection for the patient and the doctor. Emergency physicians should ensure that they are aware of how to contact their local Board, both in and out of working hours.

Mentally ill

A diagnosis of mental illness does not automatically preclude a patient from giving consent. The attending doctor must decide on the competence of the patient to consent. The attending psychiatrist may be in a position to assist. If the patient is not competent then the relevant mental health legislation must be considered. In an emergency where life or quality of life is seriously threatened and time is of the essence, the facts should be recorded and treatment commenced. A sound knowledge of the mental health and guardianship legislation relevant to the region is essential.

Patient disabled by drugs or alcohol

When a patient is temporarily disabled by drugs or alcohol the situation is less clear. In some Australian states persons who have committed serious assault may escape conviction because the law considers them incapable of forming the intention to commit the act. Legal and medical opinions do not always agree, especially in respect of ‘capacity’ and blood alcohol readings. The absolute legal position is unclear as to whether an intoxicated person can give consent, but there is no doubt that any doctor who acts in the best interest of the patient will always be on solid ground in the event of an action (see Box 25.3.1).

Box. 25.3.1 Practical advice for difficult issues related to consent and competence

A useful and practical take on this subject from an emergency physician’s point of view is encapsulated by the four Ds: the dumb dedicated documenting doctor.

If one is faced with a difficult decision in the emergency department, it is usually at a time when there is no easily obtainable advice. The medical director is away, the hospital lawyer is not around at 2.00 am, and the problem must be solved now. The practical choice is between only two options. Do I let the patients discharge themselves (for example), or do I restrain them and treat them without their consent?

If one does the latter, the patient may sue for wrongful imprisonment, assault etc. If, however, he discharges himself against advice (possibly because he is drunk) and sustains harm, he will then inevitably sue for breach of duty of care, and claim damages. Then suppose the doctor faces court. Which charge can be defended most easily? If the doctor restrained the patient, the (four Ds) doctor can speak to the court, saying in effect: ‘Your Honour, I don’t understand all the legal niceties. I am not a lawyer. But all I did was for the patient’s welfare and health, and I wrote it all down, at the time.’ What can the physician say if the physician allows the patient to self-discharge?

The more one thinks about it, the less likely it is that the doctor will be convicted in the former circumstance. Even if the doctor was to lose the case, the damages would be tiny compared with the damages for suffering and so on in the other case. Sensible restraint to allow duty of care to be satisfied undoubtedly provides a more satisfactory outcome for all concerned, with little chance of litigation.

Restraint may be justified in order to prevent patients taking their own discharge when that might have adverse medical results. There are no simple rules, but it is worth considering whether it is better to be sued for assault and wrongful imprisonment or to be sued for the damage that followed to the patient who was allowed to leave. It may be possible to ask the Guardianship Board for help, but there will be occasions in which immediate decisions must be taken, and the best rule is to do whatever will be the best for the patient in the longer term. Again, documentation at the time, and the signatures of witnesses, will help if the court is involved.

The emergency patient

There has been little written about the patient who requires emergency care but is temporarily incapable of providing consent. The overriding principle, however, is one of the ‘duty of care’ owed by the doctor to the patient. This duty is to provide appropriate care at a standard commensurate with the skill and experience of the doctor. There is also an obligation to explain to the patient what has been done as early as is reasonable in the recovery phase.

The emergency physician must know the five essentials of consent and the differences between implied, verbal and written consent. A sound knowledge of mental health and guardianship legislation is required. It is of the greatest importance that there is adequate and contemporaneous documentation of decisions. The doctors’ primary responsibility to their patients is their duty of care. If it is clear that the doctors were acting in the best interests of their patient, it is highly unlikely that they will be successfully sued.

Unique considerations for the emergency department

Emergency physicians work in an environment where multiple simultaneous demands are placed upon them. Particularly with respect to critically ill and injured patients, detailed information regarding their presentation, past history and usual level of functioning is often lacking, incomplete and may, in fact, be wrong. A physician may suspect that a patient might be impaired but have little time to make a detailed assessment before a treatment decision is required. Similarly, the information available to the physician at a point in time might suggest that a particular diagnosis and a course of action are warranted, and this might change markedly upon receipt of further information.

In short, the emergency physician must frequently make complex decisions at short notice with little background information. In situations where decisions have been made on behalf a patient who is felt to be incompetent, it is important to document carefully the information available to the physician, and the possible diagnoses and their sequelae entertained at that time, and the reasons for the course taken. It is good practice also to seek the assistance and advice of a colleague where the competence of a patient is in doubt and significant interventions are deemed necessary. Factors to be considered when acting in the patient’s best interests without consent are listed in Table 25.3.4.

Table 25.3.4 Factors to be considered when acting in the patient’s best interests without consent

The patient’s own wishes and values (where these can be ascertained) including any advance statement

Clinical judgement about the effectiveness of the proposed treatment, particularly in relation to other options

Where there is more than one option, which option is least restrictive of the patient’s future choices

The likelihood and extent of any degree of improvement in the patient’s condition if treatment is provided

The views of the parents if the patient is a child

The views of people close to the patient, especially close relatives, partners, carers or proxy decision-makers about what the patient is likely to see as beneficial

Any knowledge of the patient’s religious, cultural and other non-medical views that might have an impact upon the patient’s wishes

Controversies and future directions

1 English medical law is likely to be influenced in the future by the recent introduction of the Human Rights Act 1998, with courts having to take into consideration case law of the European Court of Human Rights.

2 Case law on the issue of what is considered appropriate information to give to patients regarding treatment options is evolving.

3 One philosopher proposed that patients in emergency departments already have their freedom of choice restricted because they have not chosen their site of treatment, and treatment choices are restricted to institutional policies.

References

1 Skene L, Nisselle P. High Court warns of the ‘retrospectoscope’ in informed consent cases: Rosenberg v. Percival. Medicine Today. 2001:79-82. October

2 Alderson P, Goodey C. Theories of consent. British Medical Journal. 1998;317:1313-1315.

3 Miller S, Marin D. Assessing capacity. Emergency Medicine Clinics of North America. 2000;18:233-242.

4 British Medical Association. Consent Tool Kit Card 9 Advance Statements

Introduction

An individual’s right to privacy and confidentiality has gained increasing recognition over the past decade. In an emergency setting, where patients are more vulnerable because of illness or injury, staff are often provided with confidential family and legal information, which would otherwise not be divulged, trusting that this will only be used to assist in the care of the patient.

Physical privacy

Emergency departments (EDs) are necessarily designed in an open plan to increase efficiency, observation and communication, but these requirements do intrude on privacy, particularly if cubicles are separated by curtains rather than solid walls. Consultations may be overheard during history taking, and when discussing patients with other medical staff or specialists, either directly or by telephone.

Patient privacy incidents occur frequently in an ED, risk factors being length of stay and absence of a walled cubicle. Patients who have their conversations overheard are more likely to withhold information and less likely to have their expectations of privacy met.⁵ Privacy and confidentiality are challenged by physical design, crowding, visitors, film crews, communication and other factors.⁶

Prior permission should be obtained from the patient to allow students, nurses, other medical officers to be present during history taking, examination and procedures. This applies both in public and private hospitals. Some aspects of privacy in healthcare in the ED relate to confidentiality while being assessed (being overheard, being seen, being exposed and being embarrassed), which relate to ED design, staff awareness, sensitivity and care. ED staff may be unaware how their routine behaviour may infringe on patient privacy.⁷

Staff bays are now often enclosed by glass screens to prevent others from hearing details on a patient’s history or to prevent patients from becoming unnecessarily alarmed by discussion of serious differential diagnoses, which may need to be excluded. Inappropriate or unprofessional comments by staff may also be heard.⁸

When the patient is an adolescent, privacy needs may exclude communication with a parent. An understanding of the relevant informed consent law relating to minors is required.⁹ The federal Privacy Act does not specify an age at which a child is considered of sufficient maturity to make his or her own privacy decisions. Doctors need to address each case individually, having regard to the child’s maturity, degree of autonomy, understanding of the circumstances and the sensitivity of the information being sought.³

It is only within the last 5 years that the almost universal ‘whiteboard’ has virtually disappeared. This was a popular and useful management tool in EDs, displaying the patients’ names, working diagnoses, locations and management plans. They were easily visible to anyone who came into the department. To preserve privacy and confidentiality, it was inevitable that they were withdrawn despite strong opposition from ED staff, claiming that this would lead to disruptions in patient care, coordination and flow. These problems did occur during the change-over period, but staff adapted well, and the advent of patient-tracking computer systems means that each monitor now provides more clinical information than the whiteboard ever did.

Well-known people (VIPs, politicians, media personalities and sports stars) need even more privacy than others, since they may be accompanied by support staff and, perhaps, a bevy of reporters who may be difficult to control, armed with video cameras and portable recorders. They cannot be restricted until the patient is actually inside the hospital building, after which security is in charge. Even when outside the building, most will accept advice to remain in a provided access zone where they may use their cameras or microphones without intruding on the privacy of other patients or their subject of interest. Hospital staff involved in the care of such patients may also wish to have their own privacy protected. Most hospitals now have media relations officers to take on the role of providing regular updated bulletins.

Healthcare providers

There is also the important matter of privacy for health providers. Whether full names should be displayed on identity badges is debatable. Details of contact numbers and home addresses of consultants, medical staff and nurses must be kept confidential, as there are cases of disgruntled or psychotic patients harassing and stalking clinical staff. Even if the request for contact details is innocent, it is an invasion of a healthcare worker’s privacy for that information to be released without consent.

Mandatory reporting

Mandatory reporting overrides privacy laws where they are for the purpose of protection of the health of individuals or communities. Examples are:

• notification of communicable infectious diseases ¹⁰

• child abuse

• elder abuse

• domestic violence.

This becomes more difficult when there is merely a suspicion, but doctors are protected if they report on this basis only. The laws vary between jurisdictions.

Police

Assistance must be given to the police when a criminal offence has been committed. In such cases, patient name, date of birth, address, nature of incident, description of injuries and conscious state may be released. An opinion of causation must not be stated.

If an injured patient is suspected of being a crime victim or perpetrator and may be a danger to that patient’s or another’s life, it is the doctor’s civic duty to inform police of the circumstances.¹¹

If a police enquiry is made by telephone, record the name, station, contact number and request and advise that the information will be obtained and provided. The given contact number must be checked to ensure if it is genuine before providing information, heeding the principles of confidentiality.

With police statements, the doctor should state credentials and experience before giving details of alleged history and physical findings. It is important to be objective, and to avoid venturing opinions outside a doctor’s area of expertise. It is preferable for all police statements to be written by the ED director, so that a confidential record is kept of all statements issued.

Assistance is also given to help police identify missing or deceased persons.

Blood samples may need to be collected by law for drug or alcohol screening for patients involved in motor vehicle accidents. These are provided to police for testing.

Forensic issues

All deaths from unknown, unexpected, unnatural, accidental, violent or suspicious causes must be reported to the state coroner. This also includes cases of unknown identity, during or after surgery, in custody, a ward of the state, requested by next of kin or where unable to issue a death certificate.

Patient health information

Privacy of patients’ health information refers to:

• their medical and social conditions

• their medical record

• any images (still, video or diagnostic imaging)

• results of investigations

• their treatments

• their treating doctors

• specialist and medicolegal reports.

Legislation

Confidentiality of health information has been the focus of legislation over recent years.

The Privacy Act 1988 ¹ applied only to the Australian Commonwealth public sector, but steps were taken early on to introduce it to the private sector, resulting in the Privacy Amendment (Private Sector) Act 2000 becoming law to cover the private (and public) health sector in December 2001.²

In New Zealand, the Privacy Act was enacted in 1993 and was used to develop the Health Network Code of Practice and Health Information Privacy Code 1994, which was further modified by the Health Information Standards Organisation in 2005.⁵

National privacy principles

The Privacy Act offers privacy protection to patients, while balancing this with the need for health service providers to share information, where necessary, for the provision of quality healthcare. The National Privacy Principles (NPPs) applicable to hospitals are summarized in Table 25.4.1.

Table 25.4.1 National Privacy Principles (applicable to hospitals)

NPP1	Collection
	Only collect information necessary to deliver the health service
	Obtain consent (this may not be possible with some emergency department patients, in which case, consent is implied)
NPP2	Use and disclosure
	Explain how the information will be used
	To whom the information may be disclosed, e.g. other treating clinicians and health carers, pathology, radiology and pharmacy
	By law, to courts, when subpoenaed
NPP3	Data quality
NPP3	Set standards to keep information accurate, complete and up to date
NPP4	Data security
NPP4	Protect and secure from loss, misuse and unauthorized access
NPP5	Openness
NPP5	Explain how health information is handled
NPP6	Access and correction
NPP6	Gives patients right of access to their own records and the right to correct it
NPP7	Identifiers
	Hospital must have its own identifier such as a Unit Record number, and must not use
	Commonwealth identifiers such as Medicare or Veteran Affairs numbers
NPP8	Anonymity
NPP8	Where lawful or practicable, patients must have the option of using health services without identifying themselves
NPP9	Transborder data flows
NPP9	Obligations regarding transfer of health information to another country
NPP10	Sensitive information
	Health information is sensitive information and must not be collected or disclosed without the patient’s consent, except when required by law or under certain specified limited circumstances, such as serious or imminent threat to life or health, medical defence, for research relevant to public health or safety (preferably de-identified)
	Includes racial or ethnic origin, religious beliefs, sexual preferences or criminal record

NPP1

Patients or their relatives should be informed of the main consequences, if all relevant information is not provided. Information is collected primarily from the patient, but where collected from other sources, such as specialist or imaging reports, the patient should be told this. In an emergency, one may obtain from or provide information to another health organization or health practitioner without patient consent.

When collecting demographic data, this is best done by providing a patient with documents to complete, rather than asking patients at an open desk in a waiting room. Triage should be performed in a private area. Taking of family histories can be done without their consent, as this helps in diagnosis, and is part of good clinical practice.

NPP2

The ‘primary purpose’ is to use the information for the patient’s healthcare. The primary purpose must be aligned with the patient’s expectations. A ‘secondary purpose’ may be to use it for research, for which specific consent must be obtained. When information is provided to a third party, that should be recorded in the unit record. It is standard practice to send a discharge summary to a patient’s usual general practitioner (GP), unless the patient has requested otherwise.

NPP3

In EDs, it is sometimes difficult to obtain an accurate history, due to the patients’ anxiety about their presenting symptoms. More accurate information may become available after they have had a chance to collect their thoughts, or to affirm areas of their history with family or other witnesses. It is useful to recheck details that may not fit a working diagnosis.

Medication histories are often also inaccurate, since the patient may not be responsible for self-administration or may obtain tablets from a prepackaged dispensing system. Computerized GP letters often have all medications ever prescribed for that patient by the GP practice, and to be accurate, every medication should be checked with the patient or carer to ensure their currency.

NPP4

Patient records must not be left within reach of, or viewed by, others.

Any documents, notes on scrap paper or labels containing identifiable patient details must be disposed of securely, e.g. shredded, and not left in general waste paper bins.

Patient details on a computer screen should not be visible to other patients or visitors. Screen savers are useful if the screen is unattended. Computerized patient data must only be accessible to authorized personnel by password-protected access.¹⁰

NPP6

Patients do have a right to access opinion as well as factual material, including a specialist’s report, whether or not the report states that it is not to be shown to the patient without the patient’s consent.³ Patients are not obliged to give their reason for requesting access. Patients do not have immediate right to investigation results. The doctor ordering the tests must be given the opportunity to assess and discuss the results; otherwise there is the risk of misinterpretation.

NPP8

In some settings such as counselling in HIV/AIDS or sexual health, there are instances where anonymity is requested and granted. In the case of public or private hospital EDs, for providing a safe health service, and for billing and rebate purposes, doctors are required to record the identity of the patient.³

NPP9

Hospitals may transfer health information to countries where similar privacy laws exist. Consent needs to be obtained from the patient when in doubt, or when sending to countries where no such protection exists.

NPP10

The original 10th NPP was titled ‘Sensitive Information’. In some revisions of this principle, it has been split into NPP10 ‘Limits on Use of Personal Information’ and NPP11 ‘Limits on Disclosure of Personal Information’. The Federal Privacy Act 1988 has recently been amended to permit disclosure of genetic information to an at-risk relative when there is a serious (although not necessarily imminent) threat to the person’s life, health or safety. It applies only to doctors and other health professionals in the private sector and does not cover those in state public hospitals or Commonwealth government agencies.^12,¹³ Why this is so needs further consideration.

New Zealand

New Zealand implemented its Privacy Act in 1993, with 12 principles that are similar to the Australian NPPs.⁴ The Privacy Act has 12 information privacy principles:

Principles 1–4 govern the collection of personal information. This includes the reasons why personal information may be collected, where it may be collected from, and how it is collected.

Principle 5 governs the way personal information is stored. It is designed to protect personal information from unauthorized use or disclosure.

Principle 6 gives individuals the right to access information about themselves.

Principle 7 gives individuals the right to correct information about themselves.

Principles 8–11 place restrictions on how people and organizations can use or disclose personal information. These include ensuring information is accurate and up to date and that it is not improperly disclosed.

Principle 12 governs how ‘unique identifiers’ (such as IRD numbers, bank client numbers, driver’s licence and passport numbers) can be used.

In 2005, the Ministry of Health released the Health Information Strategy for New Zealand,⁴ with an emphasis on security of electronic data, and maintenance of trust in, and integrity of, communication. They developed a Privacy, Authentication and Security (PAS) guide, which brought all the existing relevant documents together.¹⁴

Implementation

Most hospitals now provide brochures to patients on arrival, outlining these privacy issues. These are important whether the hospital is public or private.^15,¹⁶ ED staff must be aware that some patients will require more detailed explanation before they are prepared to reveal all relevant information, and a sensitive approach is needed. Complaints about alleged breaches of privacy may be made and, if necessary, may be referred to the state health ombudsman or the state or federal privacy commissioner.

Communications

In this electronic era, sending information by facsimile, e-mail or telephone messaging can breach security, and ED staff need to take great care to ensure that there is a responsible person receiving the data, or that with telephone messages, only the caller’s contact details are left. Health details should only be discussed directly with the patient, or parent in the case of a minor.

Medicolegal reports

Medical reports can only be provided to lawyers, after written consent is obtained from the patient. Such reports are the intellectual property of the doctor writing the report. While a patient has a right to view them, there is no right for a copy to be supplied, unless an appropriate fee for preparation of the report is paid.

Where a lawyer requests copies of medical records, rather than a report, the doctor must check the records to ensure that information collected is not sensitive information and does not contain information about others. Payment may be requested for the costs of reviewing and photocopying.

Research and quality assurance

Patients must be asked for consent before participating in research or quality assurance studies and must be de-identified in any reports. They must be fully informed of the reasons for, and the possible side effects of, the study.

Complaints and non-compliance

Doctors are advised to obtain their own independent legal advice and notify their medical indemnity/insurance company, if they are investigated by the privacy commissioner as the result of a complaint that privacy may have been breached. Monetary fines or imprisonment may result from non-compliance.¹⁷

Retrospectivity

In general, the principles apply to information collected on or after 21 December 2001 in Australia but may apply before then, if referred to, used or disclosed later. If compliance poses an unreasonable administrative burden or expense, then a summary is an option. This refers to NPP 5, 6, 7 and 9.³ There is no obligation by a doctor to provide access to information which is not in use collected prior to 21 December 2001.

State, territory and New Zealand privacy laws

The 10 NPPs apply throughout Australia. While these are generally accepted, some states have rewritten them. The differences are not significant in content.

New South Wales has 15 health privacy principles, which came into effect on 1 September 2004. They are a more detailed expansion of the NPPs.¹⁸ In Victoria, the Health Records Act 2001 came into operation on 1 July 2002, and this becomes the relevant date for ‘old’ versus ‘new’ information.¹⁹ In Queensland, there is no separate privacy law. Queensland Health requires compliance with the 10 NPPs.²⁰ In Western Australia, there is currently no legislative privacy regimen, but an Information Privacy Bill was introduced in March 2007.¹⁴ South Australia has a Code of Fair Information Practice based on the NPPs.²¹ Tasmania has superseded its previous privacy principles with the Personal Information and Protection Act 2004.²² The Northern Territory has a Health Information Privacy website issued in March 2002.²³ The Australian Capital Territory uses a slightly amended version of the Federal Privacy Act, which is administered by the Federal Privacy Commissioner on behalf of the ACT government.²⁴

New Zealand implemented its Privacy Act in 1993, with 12 principles that are similar to the Australian NPPs.⁴ In 2005, the Ministry of Health released the Health Information Strategy for New Zealand,⁴ with an emphasis on security of electronic data, and maintenance of trust in, and integrity of, communication. They developed a PAS guide, which brought all the existing relevant documents together.²⁵

Controversies

1 Release of information on adolescents to parents.

2 Protection of staff privacy – should full names be displayed on identity badges?

3 The extent to which information may be provided to the police or other authorities.

4 Whether reporting of elder and domestic abuse should be mandatory in all regions.

5 Whether the security on current computer systems is sufficient to protect personal health information.

References

1 Office of the Federal Privacy Commissioner. National Privacy Principles. The Privacy Act, 1988. http://www.privacy.gov.au.

2 Office of the Federal Privacy Commissioner. Guidelines on Privacy in the Private Health Sector, 2001. http://www.privacy.gov.au/publications/hg_01.html. 9 Nov (Accessed Sept. 2008.)

3 Phelps K, Mudge T. Privacy resource handbook. Canberra: Australian Medical Association, 2002.

4 Health Information Standards Organisation. Health Information Strategy for New Zealand, 2005. http://www.moh.govt.nz.

5 Karro J, Dent AW, Farish S. Patient perceptions of privacy infringements in an emergency department. Emergency Medicine of Australasia. 2005;17:117-123.