NZ legislation in the emergency setting

cartoonIt is not uncommon in the emergency department for practitioners to have to make decisions around the provision of medical or psychiatric care to patients who are:

  • Incompetent, combative, or uncooperative due to organic illness or injury – for example trauma, intoxication, and delirium
  • Suffering from mental health disorders that render them incompetent and potentially a risk to themselves or others

When patients fit into one of these categories and the patient is unwilling to accept treatment, we must decide whether to treat the patient against their wishes, which may require physical or chemical restraint.

In New Zealand we have a range of legislation relevant to these situations. Emergency Department staff need to be familiar with these pieces of legislation, as legal counsel is not always available within a suitable timeframe.


An example of this would be a patient who is intoxicated, has signs of life-threatening injury, and is combative and uncooperative. Restraint and sedation in this setting is covered under two legal mechanisms:

‘Common Law’ refers to legal principles that have been established through prior legal cases.  It relies heavily on the concept of ‘legal precedents’, with NZ common law originating from English Common Law. Common Law precedents have established that doctors have a ‘duty of care’ to their patients that includes acting in the patients best interests if the patient is not competent to consent to or refuse treatment.

This principle is formalized in NZ legislation under HDC legislation, specifically  The HDC Code of Health and Disability Commissioner Services Consumers’ Rights Regulation 1996. 

Right 7’ of The Code states:

 3) Where a consumer has diminished competence, that consumer retains the right to make informed choices and give informed consent, to the extent appropriate to his or her level of competence.

4) Where a consumer is not competent to make an informed choice and give informed consent, and no person entitled to consent on behalf of the consumer is available, the provider may provide services where –

a) It is in the best interests of the consumer; and

b) Reasonable steps have been taken to ascertain the views of the consumer; and

c) Either, –

i. If the consumer’s views have been ascertained, and having regard to those views, the provider believes, on reasonable grounds, that the provision of the services is consistent with the informed choice the consumer would make if he or she were competent; or

ii. If the consumer’s views have not been ascertained, the provider takes into account the views of other suitable persons who are interested in the welfare of the consumer and available to advise the provider.


These patients come under the Mental Health (Compulsory Assessment and Treatment) Act 1992. This act allows the provision of compulsory mental health treatment to patients who meet certain criteria, but does NOT allow the provision of other medical treatment. Treatment for toxicological aspects of an intentional self-poisoning, for example, would be covered under Common Law and the HDC Code as above.

For patients in the acute setting who are felt to be unwell enough to need care under the Mental Health Act, the relevant process is as follows –

Powers of medical practitioner when urgent examination required:

1) Subsection (2) applies to a medical practitioner who—

(a) conducts a medical examination of a person who is acting in a manner that

could give rise to a reasonable belief that he or she may be mentally disordered; and

(b) concludes that—

(i) there are reasonable grounds for believing that the person may be mentally      disordered”

The relevant elements are a medical examination and a ‘reasonable’ belief that the patient is mentally disordered. The definition and relevant criteria for ‘mental disorder’ are as follows –

Mental disorder, in relation to any person, means an abnormal state of mind (whether of a continuous or an intermittent nature), characterised by delusions, or by disorders of mood or perception or volition or cognition, of such a degree that it— (a) poses a serious danger to the health or safety of that person or of others

An additional legal mechanism applies when patients present to the emergency department following an apparent suicide attempt. Section 179 of the New Zealand Crimes Act 1961 states –

Aiding and abetting suicide

Every one is liable to imprisonment for a term not exceeding 14 years who—

(a) incites, counsels, or procures any person to commit suicide, if that person commits or              attempts to commit suicide in consequence thereof; or

(b) aids or abets any person in the commission of suicide.

The relevance of this for acute care providers is that aiding/abetting suicide includes inactivity, and failing to prevent suicide. This provides a clear legal requirement to treat the patient, even if they are refusing such treatment.

Deciding whether a patient is competent to refuse treatment, or requires restraint, sedation, or detention for the provision of care is a complex and potentially risky process, and should involve the most senior ED doctor available.


ED pitfalls: Posterior malleolar fractures

Scott Orman, ED Specialist, and Jacob Munro, Orthopaedic Surgeon

Posterior malleolar fracture - image from

Posterior malleolar fracture – image from

The x-ray above shows what could be interpreted as a relatively innocuous injury – an apparent isolated undisplaced fracture of the posterior malleolus of the ankle.

Suitable for conservative management, discharge from ED, and follow-up in fracture clinic?

Probably not!

The posterior malleolus is typically fractured by rotational injury an/or axial loading. Posterior malleolar fracture WITHOUT other injuries to the ankle or lower leg is uncommon – only 4% in one case series examining all ankle fractures. More commonly, posterior malleolar fractures occur in combination with proximal fibular fractures (Maison-Neuve), syndesmosis injury, posterior tibiofibular ligament injury, and/or spiral tibial diaphyseal fracture. These injuries commonly require surgical intervention, and the presence of a posterior malleolus fracture with them worsens prognosis.

Syndesmotic injury: a potential association with posterior malleolus fracture - image from

Syndesmotic injury: a potential association with posterior malleolus fracture – image from

Even if another injury is NOT present with a posterior malleolar fracture, criteria for surgical intervention are complex and highly surgeon-dependent.


Upon discovery of a posterior malleolar fracture in the ED – maintain a high index of suspicion for associated injuries.  There is a high chance that other structures are injured also and that surgical intervention is required for an unstable ankle. Careful clinical examination is required, (including the proximal lower leg), and the threshold for further imaging (especially CT) should be low.

In accordance with this, the orthopaedic department at Auckland Hospital have requested that we refer all posterior malleolus fractures to them acutely for review, even if no associated injuries are immediately apparent.


Rockwood and Green – Fractures in Adults: 6th Edition

 Diagnosis of an isolated posterior malleolar fracture in a young female military cadet: Int J Sports Phys Ther. 2012 Apr 7(2): 167-172

 Posterior malleolus fracture: J Am Acad Orthop 2013 Jan 21(1) 32-40