On the Ethical Detention of Patients in the Emergency Department

This is a guest post by Dr Casey Parker MBBS DCH FRACGP DDU DipRGA.

Introduction

The detention and restraint of patients in the context of Emergency Department care is a complex legal and ethical issue.  There are specific laws which do give hospital staff the powers to detain patients against their will with regards to emergency Mental Health care and under legal Guardianship orders.  However, the majority of instances of involuntary detention fall outside of these legal statutes.  

In common law there are protections which may be employed as a defence against prosecution for illegal detention by hospital staff.  In a recent editorial article in the journal Emergency Medicine Australasia Dr. Anne-Maree Kelly et al explored the current legal landscape that surrounds this issue in Australia.¹  This article describes the assessment of decision-making capacity, emergency care under the ‘doctrine of necessity’ and the obligations of the health providers to satisfy their duty of care including the common law precedents around these issues.

The nature of Emergency Medicine is such that doctors and nurses are typically working with limited, imperfect information. Accurate assessment of a person’s capacity in these hyperacute situations is unfeasible. The patient’s illness may necessitate time-critical interventions. Subsequently, there is often a high degree of uncertainty when staff are required to balance their duty of care with the patient’s autonomy and capacity to make their own decisions.

The involuntary detention of patients in Emergency Medicine typically involves a combination of physical restraint and pharmacological restraint.  Clinicians receive specific training in both the safe physical restraint and the use of sedating agents in the emergency department.  Although these techniques are employed to achieve the same end, the ethics of their use are not necessarily equivalent.

The Law in Australia does not give clear guidance on how clinicians should act in these difficult scenarios.  In the absence of a clear legal framework we must revert to medical ethics to guide our practice.  In this article I will explore the medical-ethical aspects of this difficult area both from the perspective of individual clinicians and that of the hospital as an institution.  

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Clinical case vignette:

Trevor is a 30 year old man who has been brought to the Emergency Department after being involved in a single vehicle, high-speed motor vehicle collision on the freeway.

Ambulance paramedics attending the scene found Trevor walking around the accident scene.  He appeared to be agitated and was behaving aggressively towards the concerned bystanders.

He has a small laceration to his forehead and multiple abrasions to his face and hands.  He is complaining of chest pain.  The ambulance officers did manage to perform a brief survey and they found him to be hypertensive, sweaty and febrile.

Shortly after arriving in the Emergency department Trevor became very agitated and threatened the nurse who was attempting to insert an IV cannula in the trauma bay.

A “CODE BLACK” is called.  Hospital security staff and one of the Police officers from the accident are in attendance.

The Police officer confirms that Trevor is not under arrest, they have no evidence of a crime.  He had a negative breath alcohol reading.

A quick review of Trevor’s medical records shows no previous medical or mental illness.

When the Emergency Physician attempts to engage Trevor in conversation and verbally de-escalate the situation Trevor simply screams in her face. He refuses to listen to any therapeutic options offered to him.  

The Emergency Physician cannot make any accurate assessment of Trevor’s capacity in his current state of mind with limited information available.

He is demanding that the security team “back off” and allow him to leave the hospital.

Should the Emergency team detain Trevor in order to facilitate a thorough assessment?

Or should they simply allow him to leave?

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This case represents a common dilemma for Emergency clinicians.  Our training and systems are designed to rapidly identify immediate life-threats and to initiate empirical, urgent treatment.  Emergency physicians are trained to manage undifferentiated clinical scenarios with an incomplete set of data to inform this care. In the initial phases of Emergency care the decision to detain a patient against their wishes is never straightforward.  

In the case described there are a large number of important, potentially serious diagnoses that should be considered and managed as soon as possible.  A serious brain injury, a cervical spine fracture, a toxicological emergency, an occult suicidal attempt or seizure; or even a serious infection of the brain may need to be appropriately investigated prior to considering safe disposition.  Some of these neurological diagnoses may, of themselves, alter the patient’s decision-making capacity.  Until these diagnoses are made, or excluded, it is difficult for the clinician to accurately judge a patient’s current capacity.  

This is the reality of Emergency practice.  High stakes decisions being made with limited information under time pressure.  This decision-making process is made more difficult by the current ambiguity of the law in Australia as it applies to this scenario.  In most states there are provisions for emergency care in the face of imminent, severe risks to the patient’s life or wellbeing.  However, in cases where the immediate risks are undetermined or require a temporal gap to resolve the risk the Law offers no constructive guidance.

Legal Framework of Involuntary Detention

In Australia there are specific scenarios in which fall under established Statutory laws.  These include the Mental Health Act, State Administrative Tribunal Act (Guardianship)  and the Children and Community Services Act. Each of these acts contains specific criteria which health care professionals must satisfy in order to initiate involuntary detention and sometimes treatment of patients without consent.  

Patients who meet these predetermined legal criteria are more straightforward to treat and detain. In situations where there is a clearly established legal, statutory obligation to do so hospitals have established systems of care involving acute Mental Health teams.  

However, the majority of decision-making around involuntary restraint of patients do not fall under these legal statutes.  In scenarios such as the one described clinicians are required to make judgements based upon the benefits and risks of detaining a patient.  These decisions fall under common law doctrines.

Common law doctrines are developed by the courts on a case-by-case basis. In Western Australia the Criminal Code contains legal precedents involving the detention and restraint of people in an emergency setting.  The common law “doctrine of necessity” forms the legal basis of a defence of the involuntary detention of a person in order to prevent imminent harm.  Whilst there exist few actual cases within tort law – it is generally accepted that the “doctrine of necessity” would only apply to brief detention in a scenario where there was an imminent risk to the person or others in the immediate vicinity.

Capacity

The key legal concept involved in the decision to detain and treat a person against their will is capacity.  Capacity is assumed to be present in persons older than 18 years of age unless otherwise shown.  Capacity is a fluid concept which is dependent upon the person’s ability to understand, retain and weigh information about the decision and to subsequently communicate their decisions.  Capacity is not a simple, binary trait.  A person’s capacity is dynamic; dependent upon the nature and gravity of the decision being taken. 

In order to judge a patient’s capacity in a given clinical scenario a clinician must be able to engage in dialogue with the person and give information about the risks, treatment options and potential harms of the various options that are available.  The clinician must be able to understand the person’s cognitive process in reaching a decision.  Importantly, the clinician must only judge the cognitive process rather than the actual decision taken. (Of course, this is an inherently difficult task given the fundamental opacity of cognitive processes in vivo). In our social and legal systems people with capacity are permitted to make subjectively poor decisions if they wish.

In the acute setting there are often ephemeral phenomena in play such as intoxication, severe pain, severe medical illness or anxiety which may render a patient temporarily unable to demonstrate the features of capacity. It is common for Emergency clinicians to be in the situation where it is impossible to make a robust decision about a patient’s capacity or lack thereof. 

Consent

Legal capacity is a prerequisite for a person to give consent to treatment.  Consent in the routine work of an Emergency clinician is transactional; it is maintained as a function of the therapeutic relationship.  Specific consent is not sought for simple procedures where the patient has the opportunity to ask questions and receive information regarding their care.  In most systems specific, written consent is sought from patients when they undergo discrete procedures which carry significant risk or where anaesthesia would temporarily extinguish the patient’s capacity. 

Implied consent is a daily feature of Emergency care.  The fact that a person has voluntarily attended the hospital in order to seek care is taken as consent to perform simple tasks such as recording observations, taking blood samples, non-invasive investigations or providing urgent medications for symptom relief.  Consent is assumed by the act of holding out one’s arm or swallowing the proffered tablets.

Ideally consent should be informed. Patients should have access to the information about their care and the opportunity to question the treatment, rationale and alternatives.  In the reality of Emergency care patients are typically assumed to have adequate knowledge and are offered advice as required. The frenetic pace of emergency care means that most care is not truly informed as there simply is not enough time to cover all the minutiae of medical care.

The real dilemma in Emergency care arises where a person who has not been able to be assessed as having capacity decides to leave or refuse care.  The lack of a therapeutic relationship means that this ‘transactional consent’ has not been established.  

The Paradox of Transient Incapacity

Clinicians find themselves in a ‘Catch-22’ situation in the event of transient loss of capacity. There may be a need to provide acute medical treatments, without specific consent, with the goal of reversing the disease or injury and returning the person to a state in which they once again have capacity to make informed choices and consent to their subsequent care.

Clinicians have a Duty of Care to treat patients with reasonable skill and judgement; and to avoid harmful omissions in care.  We also are obligated to maintain a person’s autonomy over their care. The balance between these is complex and specific to the individual clinical scenario. In the situation where capacity is unclear or assessment is impossible we are required to make this judgement in a timely manner. 

In Australia there is no clear legal basis to guide these decisions. At best there exist common law defences which may be employed should a complaint arise around involuntary detention and care without active consent.  However, legal defences are only applicable in retrospect and are inherently blunt tools. Legal precedents cannot assist the complex decisions being taken at the point of care. 

There exist no pragmatic, positive guidelines to help clinicians make these decisions in the Emergency Department as critical events unfold.  Therefore, when urgent decisions are required in the face of clinical ambiguity and  legal uncertainty we must employ an ethics-based approach in order to construct a positive set of guiding principles around the involuntary care of patients with uncertain capacity.

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Ethics

There are two broad ethical theories that we use to determine the right actions in medical ethics: deontological (duty-based ethics) and consequentialism (of which utilitarianism is a form).  The traditional framework utilised for analysing medical ethics is the “Four Pillars” model of beneficence, non-maleficence, autonomy and justice.

Deontological Ethics

In the case of involuntary detention there are no established deontological ethical rules. Our laws do provide rules around specific clinical scenarios, particularly in the assessment and treatment of patients suffering from mental illnesses which affect their reasoning and capacity.  

The concept of primum non nocere (first do no harm) is an example of a deontological rule in medicine. However, this principle is more complex than it may appear.  “Avoiding harm” is difficult to apply as we know that most actions in Emergency care do have predictable, minor harms which are acceptable if they form part of an acceptable overall package of care.  Placing an intravenous line inevitably causes a moment of pain, X-rays deliver a small but cumulative dose of radiation that may result in harmful mutations and every drug we prescribe has known, minor side effects.  We strive to do all that is possible to limit our patients’ suffering. However, we know that we do harm patients despite our good intentions in the everyday practice of medicine.  It is the minimisation of harm which is paramount when we apply our duty of care toward patients.

This is especially true in the circumstances in which we have assessed a patient as having no capacity; and subsequently removed their autonomy.  In these situations we have an elevated duty of care as our patients are completely reliant upon the clinicians ability and depend upon their judgement around treatment decisions.  Clinicians have a magnified duty to prevent any foreseeable harms that arise from any form of involuntary treatment.  

The lack of specific rules or laws to guide care in the case of transient incapacity is the result of the highly idiosyncratic nature of any given clinical scenario.  There are many subjective value judgements, illness varieties and stochastic elements to each given patient situation.  It is impossible to write general rules or universal Laws which would apply in all cases.  As such, the decision-making in these moments requires an experienced, clinically-informed benevolent mind to weigh and act upon the best available information.  

The question then becomes: how should an expert clinician act? This then becomes a question of virtue-based ethics.  What should a virtuous clinician do in this scenario?

What are the ethical principles that might determine their decision-making in such hyperacute situations?  

Doctors are human too.  They will be biased by the situation, their own inherent prejudices and acute stress responses.  As such it is best to rationalise the ethics of this scenario in an objective manner, accepting that there will always be a gap between the ideal and the practicality of ethical detention in any given situation.

Intentionalist ethics

The intentionalist view of medical ethics states that the measure of an action should be measured by the agent’s intention, not merely the consequences of their actions.  In the case of involuntary detention this would mean that a clinician should only act if their intention is to benefit the patient, not merely to make their own situation more tolerable.  This complements the principle of non-maleficence.  Any punitive action by a clinician is unacceptable as the intention is clearly maleficent and any harm that results is unnecessary and violates the duty of care owed by a clinician towards a patient.

When taking a decision to restrain or sedate an aggressive patient we should ensure that our decision is for the benefit of the person, not merely the convenience of the clinicians or a form of maleficent punishment for the behaviour of the subject.  Unfortunately, ongoing detention is often undertaken as a result of the chronic shortage of acute mental health capacity in most healthcare systems.  It is impossible to justify detention where there is no apparent benefit to the individual other than a temporary hold that is the direct result of a systemic failure to provide appropriate care capacity.

The doctrine of double effect applies here. In many situations the restraint and detention of an aggressive patient will likely aid the staff and simultaneously ensure the person’s safety. However, the primary intention of a doctor when removing a person’s autonomy ought to be based on the principle of beneficence.  The benefit to the staff is necessarily secondary.  

In the situation in which a violent or aggressive person has a transient loss of capacity and requires acute care then it may be that their autonomy is attenuated to a degree where it may be outweighed by the team’s responsibility to maintain a safe environment for other staff and patients.

The use of detention as a temporary measure in the face of systemic bed shortages is ethically dubious at best.  The benefit to the system of hospital care is of the least importance.  Although this practice is common, it is difficult to justify in the absence of a clear benefit to the individual being detained.

Autonomy: present and future 

When considering the preservation of a person’s autonomy we must consider both their immediate needs and future autonomy.  In the case of a person who has a temporary loss of capacity as a result of injury, illness or intoxication it may be said that they have already suffered a partial loss of autonomy as their decision-making capacity has been impeded by their acute illness. 

In the case where a person has incomplete autonomy due to their acute illness it seems disingenuous to discuss the ‘preservation of autonomy’.  Instead we should focus on the restitution and preservation of the person’s future autonomy by providing the best possible care.  When weighing these present and future autonomies a clinician can only act to restore the future autonomy.  

Taking away a person’s autonomy in the case of involuntary detention is a significant act of medical paternalism.  Most utilitarian ethicists would only allow such paternalism in a limited set of circumstances when the following conditions are satisfied:

1. A person is at risk of substantial and preventable harm or loss of a benefit.
2. The paternalistic action has a strong likelihood of preventing the harm or obtaining the benefit.
3. The projected benefits of paternalistic action outweigh its risks.
4. The least ‘autonomy-restricting’ action that will secure the benefits or reduce the risks is implemented.

In the case described in the scenario above the risk of serious harms and the loss of benefits of medical interventions do seem substantial.  Although until a clear diagnosis is found this benefit is difficult to quantify.  Risks are inherently probabilistic and change with time and new information.

The least restrictive actions may be interpreted as meaning the least restriction that allows the necessary action to be achieved.  For example, using the most palatable form of restraint. In emergency care this typically involves a safely titrated sedative agent as opposed to forceful physical restraint which of itself may lead to more harm.

Least restriction may also describe the timeliness of the action.  The restriction should only be applied until such a time that more information is available and we can more precisely weigh the relative benefits and potential harms.  As such it is incumbent upon the clinical team to undertake rapid and thorough investigation of the person as soon as the decision to restrain and detain has been taken. One might argue that the use of involuntary restraint should increase the priority of this patient over other similar patients.  The clinicians ought to reweigh the risk and benefits then take further decisions based upon this information as soon as practicable.

Present vs. Future Autonomy

Consider the example of suicidal overdose with paracetamol (acetaminophen). We know that a lethal dose can be negated with the timely use of an antidote e.g. N-acetylcysteine (NAC).  Typically a single-drug ingestion of paracetamol would not reduce a person’s capacity.  However, there may be acute mental illness which has led to the intentional overdose which may also be clouding the person’s decision-making capacity.  If a patient were to disclose a significant overdose that carries a risk of acute liver failure if untreated and subsequently declines the universally effective antidote; how should one proceed?  The clock is ticking, NAC treatment needs to be initiated within 8 hours and requires a day of therapy.  

A patient with presumed capacity may refuse treatment. The preservation of their autonomy would potentially result in acute liver failure and an unpleasant death or severe morbidity.  However, if they were to change their decision 8 hours later, then they may have missed the opportunity to undergo successful treatment.  Prediction is difficult when it comes to human behaviour, especially in the context of acute psychological distress and mental illness.  

The deontological answer here may be to maintain the person’s autonomy and respect their decisions no matter how subjectively poor they seem.  Is it a fundamental human right to commit suicide?  

The consequentialist may point out the asymmetry between the irreversible harms of short-term autonomy preservation and the protection of the person’s ‘future autonomy’ if they were to be spared the oncoming hepatic failure by temporary suspension of their ‘present autonomy’.  In short, you cannot undo death.   

In fact, the Voluntary Assisted Dying² legislation that has been introduced in Western Australia in recent years mandates a minimum period of 9 days between the first and final requests to end one’s life.  This is designed to ensure that patients have consistent wishes and enduring capacity over time.  This is impossible to achieve in the context of an acute, time-critical emergency treatment decision.

Doctor as an Agent for the Health System

Emergency doctors act as agents for the hospital and the wider health care system.  There is an unwritten social contract between individual citizens and the State that provides Emergency medical services.  When an adult person with full capacity takes a calculated risk (for example by voluntarily riding a mountain bike down a forest track, swallowing an ecstasy tablet at a discotheque or playing rugby) they take this risk in the knowledge that there is a system of emergency care including professional paramedics, doctors, nurses and hospital equipment in place which will ameliorate any harms that arise should this wager with fate going awry.

The fact that we station ambulance crews at rock concerts and horse races by way of regulatory laws demonstrates this contract between the State and the individual risk taker.  

Therefore, as an agent of the State, clinical staff working in the Emergency department have a duty to uphold this covenant.  The ethical principle of justice applies here.  Doctors must uphold their duty of care regardless of their personal feelings about the individual being treated.  As such, if an individual suffers an illness or injury that reduces their capacity to make decisions then the clinicians remain obligated to perform their duty and provide the best possible care.  Although the individual has taken a voluntary risk that has resulted in incapacity, this does not absolve the clinical team of their responsibility as an agent of the system of care which the patient did factor into their decision to place themselves in harm’s way.

From an institutional perspective, Emergency clinicians also have a duty to provide a safe working environment for other staff, patients and visitors.  In some states this is a legal requirement of the hospital as an employer. In the case of an aggressive or violent patient with uncertain capacity the clinical team must balance the preservation of that individual’s autonomy against their duty to prevent harm to other people in the area.  

Such is the frequency of assault upon staff that some hospitals have installed “safe rooms” to allow staff to escape violent patients within the Emergency Department.  Staff are trained in “Code Black” scenarios, carry duress electronic pendants and receive training in self-defence.  The health system tacitly acknowledges the pervasive risk to staff in Emergency Departments.

The consequentialist would argue that the right to work in a safe work environment is fundamental to maintaining the workforce in order to provide ongoing systemic care. The utilitarian principle: greatest good for the greatest number applies here.  As such the breach of an individual’s autonomy on a given day may be less important than the need to maintain a system of care by protecting staff and other patients.  

Mechanical vs. Chemical Restraint

In modern Emergency practice the two main forms of restraint are physical and pharmacological. Physical restraint initially involves the use of manual, hands-on restraint for a brief period and in some places this may be continued with the use of dedicated restraint devices such as limb straps or if the Police are involved; handcuffs.

Pharmacological restraint typically involves the use of either oral medications which are voluntarily swallowed or parenteral sedative agents which are injected.

The principle of restraint minimisation demands that the person be offered the least invasive and briefest duration of restraint, regardless of its form.

Although both physical and pharmacological restraint achieve the same ends – they are not ethically equivalent.  Physical restraint offers no benefit to the person.  Being held down or tied to a bed is a very stressful experience and is associated with secondary harms as a result of physical injuries and psychological trauma sustained during restraint or in the persons’ struggle to escape.  The use of chemical agents is also initially unpleasant for the receiver, however the mechanism of action of these medications means that they also help to alleviate anxiety and does provide therapeutic effect in the case of psychosis or other neurological or toxicologic emergencies.

As such the principle of harm minimisation would suggest that physical restraint be used only as long as it is required and that pharmacological restraint should be enacted in order to limit the application of more harmful physical restraint practices.  The use of sedative medications may limit the suffering of an individual and has the potential to facilitate critical interventions such as careful examination, testing (eg. laboratory tests, head scans) and subsequent therapeutic interventions if required.

CONCLUSION

The use of involuntary restraint in the Emergency department is a difficult ethical question.  Although there are laws that guide the use of restraint, these are limited to specific clinical scenarios.  

From an ethical perspective there is a tension between the need to maintain a person’s autonomy and to uphold the duty of care toward the person.  In the case of a transient incapacity of uncertain aetiology it is ethically acceptable (and sometimes legally admissible) to undertake involuntary restraint of a person in order to achieve a beneficial outcome for that individual.

The ethical arguments in favour of involuntary, short-term detention are largely consequentialist in nature.  The complexity of the scenarios in which detention may be required do not lend themselves to simple rules.

The key principles of ethical, involuntary restraint  include:

1. Once a decision to involuntarily detain a patient has been taken then the clinician has an elevated duty of care toward that individual to minimise any potential harms.
2. Restraint should primarily be applied with the specific purpose of facilitating the care of the patient.  That is, restraint should be a tool by which care is maintained.
3. The goals of involuntary restraint are:
   •  to limit suffering.
   • To allow timely interventions and care.
   • To facilitate the restitution of the person’s capacity if possible.
   • To provide a safe environment for hospital staff and other patients.
4. Restraint and detention of Emergency patients should be the least restrictive:
   • in duration
   • in forcefulness
   • physical restraint should be minimised in favour of pharmacological restraint wherever possible.
5. The need for ongoing restraint should be re-weighed immediately once new information becomes available and more accurate risk assessment is possible, or their condition improves.
6. It is not ethical to detain a person due to a lack of an acceptable place to provide appropriate therapeutic care.

The Paradox of Modern Mental Health Detention Practices

In most modern Emergency departments the use of restraint is applied to two groups of patients.   Firstly, those with transient incapacity in whom there is an urgent need to provide care without specific consent.  These scenarios are not governed by specific laws and therefore detention may be applied on the grounds outlined above.

The second group of patients in which involuntary detention is common are those with acute mental health problems.  Typically, these patients are treated under legislative provisions such as a Mental Health Act.  Although this form of restraint is authorised by the Law it may not fulfil the criteria of ethical detention described above.  

It is common for people suffering acute mental illness to be detained for prolonged periods without specific therapeutic interventions taking place.  Mentally unwell patients often remain in inappropriate care areas (e.g. the Emergency department bays) due to a lack of more suitable facilities.  As such one may argue that the current state of Mental Health acute care is unethical as detention serves little therapeutic purpose and is more for the convenience of the system rather than benefit of the individual patient.

Comparing these two groups of patients – there is a stark paradox in effect.  Those with a legal mandate for detention may be treated unethically within our current healthcare environment.  Whereas the patients that are treated outside of the current legal framework require strong ethical consideration to ensure their care is optimal.

References: 

1. Detaining patients against their will: Can duty of care be used to justify detention and restraint in emergency departments? Kelly, Anne-Maree, Eburn, Michael, Cockburn, Tina, & Senthi, Anand (2023) EMA – Emergency Medicine Australasia.  28th August 2023.  DOI: https://doi.org/10.1111/1742-6723.14299
2. https://www.health.wa.gov.au/~/media/Corp/Documents/Health-for/Voluntary-assisted-dying/VAD-guidelines.pdf

Photo by Muhammad Zaqy Al Fattah on Unsplash

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