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.


SMACC 2013 – EM in review

Associate Professor in Emergency Medicine Richard Paoloni, from Concord Hospital in Sydney, reviews topics in EM over the last year, including high-sensitvity troponin, non-invasive real-time vital sign measurement, and new forms of anticoagulants.

Link for accompanying audio is below the slide set

Click HERE for the audio (right click and open this in a new tab)

Communication in the Emergency Department

AED will be holding a workshop on communication (including scenarios with an actor) on Tuesday 7 May, 4pm-6pm.

Effective communication in the ED setting is critical to providing and safe and appropriate patient care. This includes communication between different healthcare providers, as well as communication between healthcare providers and patients. For any patient in ED, there are multiple episodes where effective communication is required. One study identified 19 separate communication instances required for a single patient to be admitted to hospital from ED. 8312-0057

Unfortunately there are multiple barriers to effective communication in the ED setting. The uncontrolled nature of ED presentations coupled with resourcing issues leads to a lack of time available for clinicians to spend with patients, as well as multiple interruptions to both patient consultations and communication with other healthcare providers. Alcohol, drug, and mental health issues impair communication with patients, as do language problems and stressors associated with illness of injury.

Within emergency department literature there is a clear association between difficult clinician/patient communication and complaints and adverse events. An Australian study published in 2002 analysed complaints received by 36 Victorian EDs over a 61 month period. They found that:

  • the highest complaint rates were associated with patients who were female, born in non-English speaking countries, and were very young or very old
  • over half of complaints were made or written by someone other than the patient
  • the proportion of complaints regarding poor communication (staff attitude, discourtesy, rudeness) was the same (about one third of all complaints) as those relating to improper patient treatment
  • 11% of complaints related to delay in diagnosis or treatment

The authors of the study concluded that both research and focused staff training in communication for the ED setting are necessary. Other studies also highlight the need for communication training in ED. A UK study published in 2000 observed ED SHOs communicating with patients, and found several common weaknesses, namely the use of closed questions and poor negotiation of treatment plan and follow-up. The authors concluded that video-recorded consultations with group feedback may be an effective communication teaching tool. Getting a doctor to listen

Interventions to improve communication between clinicians and patients have been studied in the ED setting, and have been shown to improve patient satisfaction. An Australian study published in 2006 examined the effect of a multi-faceted intervention (communication workshops, a patient education film, and a patient liaison nurse) on patient satisfaction regarding their ED visit. Significant differences were demonstrated in patients’ perceptions of overall ED care, the ED facility itself, feeling ‘cared about as a person’, and feeling ‘informed’ about delays. In the post-intervention period there was a 22.5% reduction in the number of complaints received.

A variety of techniques and mental models have been proposed to improve communication between healthcare providers and their patients. A group from The Bayer Institute For Healthcare Communication created a workshop for ED clinicians and Hospitalists, which is described in the paper Strangers In Crisis: Communication Skills For The Emergency Department Clinician And Hospitalist. They conceived the ‘4E’ model:

  • Engage
  • Empathise
  • Educate
  • Enlist

When combined with ‘opening’ and ‘closing’ communication tasks of a consultation, and the clinical tasks of diagnostic reasoning and treatment planning, the 4 Es contribute to a complete model of clinical care:

A 'complete' model of ED care

A ‘complete’ model of ED care

A literature review published in 2004 identified 5 communication strategies that, when employed in an ED consultation, could enhance its therapeutic potential:

  • asking open questions
  • listening and noticing non-verbal behaviour
  • communicating empathy
  • establishing and addressing concerns
  • agreeing plans

The authors of this review refer to these as ‘therapeutic communication techniques’, which are described in more detail in the three slides below. These slides are from a nursing syllabus, but are equally relevant to ED doctors (use the ‘enlarge’ button bottom-right)


Additional full-text references for this post (these links will only work from an ADHB computer)

Identifying vulnerabilities in communication in the emergency department 

Better communication in the emergency department

Complaints from emergency department patients largely result from treatment and communication problems

A multifaceted intervention improves patient satisfaction and perception of emergency department care

Communication skills training for emergency department senior house officers – a qualitative study