Court case highlights concerns over patients being held unlawfully in WA hospitals

Security guards and legal experts say a recent court case in which a patient was stopped from leaving a Perth hospital has highlighted the legal risks of detaining some people in hospital.

A man charged with causing grievous bodily harm to a hospital security officer was found not guilty, after the judge hearing the case told the jury it was unlawful to keep him there.

While patients can be detained under the Western Australian Mental Health Act, this was not the situation at Sir Charles Gairdner Hospital on January 28, 2021.

The patient in question was taken to the hospital after he passed out at the shops after drinking alcohol while on medication for a shoulder injury.

When he came to, he said he wanted to leave to “have a smoke” and walked out of the building, still wearing his hospital gown.

A ‘code black’ was issued, suggesting there was a threat to staff or patients or property, and five security guards responded.

Blurry CCTV vision shows the hospital scene
CCTV footage showed the man and the security officers falling to the floor, resulting in one of the guards suffering a broken ankle. (Supplied)

Security officers grabbed him and brought him back into the hospital.

Inside, the group fell to the floor, in a scene described by a witness as “arms and legs everywhere”.

One of the guards suffered a fractured right ankle.

The prosecution alleged the patient had wrapped his leg around the guard’s in a way that would cause injury.

The officer who was injured told the court nursing staff had informed him that while the man had been physically cleared, he had not been “psychologically cleared” to leave.

A red sign showing an adult's emergency department to the right, and a children's emergency to the left.
The man was restrained and held in Sir Charles Gairdner overnight.(ABC News: Keane Bourke)

The man had been charged with causing grievous bodily harm and went to trial in October 2022.

His lawyer Jonathan Davies told the jury it was a “matter of false arrest”.

He said his client was “strapped to a gurney in the emergency room where he was, against his will, subject to sedation for some hours and held overnight”.

‘No right to detain’

District Court Judge Linda Black raised concerns about the prosecution case in the absence of the jury.

“The use of force is predicated on a right to detain him,” she said.

“There was no right to detain, therefore no right to use any force at all.”

The prosecution case was that the man’s actions were deliberate, while the defence case was essentially the restraint was wrongful, so he had every right to break free.

Addressing jury members before they retired to consider their verdict, Judge Black said the man was entitled to leave.

“He was unlawfully brought back into the hospital, and after force was unlawfully applied to him, he was then unlawfully detained and put onto a stretcher, and kept in hospital overnight.”

Judge Black said nobody was suggesting the hospital staff acted with malice, and “no-one was deliberately trying to breach the accused man’s rights”.

But to reinforce her main point, she said, “the law is that he should have been allowed to leave”.

“No one was allowed to touch him.”

After deliberating for about 90 minutes, the jury found the man not guilty of causing grievous bodily harm, and he walked free from the court.

Lawyer John Hammond said the decision had cleared up a grey area.

Lawyer John Hammond walking outside a Perth court.
John Hammond says the decision provided some much-needed clarity on the issue.

“Doctors, security guards and hospitals aren’t allowed to grab someone physically and bring them back into the hospital,” Mr Hammond said.

“So doctors and hospitals have to be very careful about how they deal with patients.

“This does lay it out in black and white, and it makes it very clear that security guards at hospitals, doctors, nurses cannot detain a patient by force or otherwise.”

Officers back judge’s call

Hospital security officers who have spoken to the ABC say Judge Black’s comments highlighted their concerns.

The guards, who did not want to be identified, said doctors and nurses needed more training.

“They think they’re doing the right thing but the law needs to be cleared up,” one said.

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