Compulsory Medical Treatment

Orders for Inmates within NSW

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1. Legal elements of valid consent
2. Statutory exceptions
3. Compulsory medical treatment orders for
inmates
– NSW and other States
– Historical Development in NSW
4. Use within NSW Correctional Facilities
5. International Perspectives

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 Consent - Right to Self Determination
• ‘every human being of adult years and sound mind has a right
to determine what shall be done to their own body; and a
surgeon who performs an operation without his patient’s
consent, commits an assault, for which he is liable in damages’
(Schloendorff 1914)

• ‘a competent adult is generally entitled to reject a specific

treatment or all treatment ……even if the decision may entail
risks as serious as death and may appear mistaken in the eyes of
the medical profession or community’ (Malette 1990)

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 Consent – Statutory Exceptions
• Guardianship Act (NSW)
• Mental Health Act (NSW)
• Other Legislative Exceptions
– Public Health – infectious diseases
– Forensic Procedures
– Compulsory testing and medical treatment Orders
for inmates

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 Compulsory
Medical Treatment
of inmates

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New South Wales

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 Section 73 (NSW)
• Provides broad legislative authority to treat an
inmate in the absence of consent
• Based on opinion of Chief Executive (if doctor) or
medical practitioner designate
• To ‘save inmate’s life or prevent serious damage to
their health’
• Must take into account ‘inmate’s cultural background
and religious views’
• May authorise non-Justice Health medical
practitioners to treat (eg. hospital doctors)

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Queensland

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Western Australia

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Northern Territory

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Tasmania

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 Other States and Provisions

• South Australia, Victoria, ACT - nil provisions

allowing general treatment without consent

• All States have provisions for:

– Mandatory drug and alcohol testing
– Provisions for managing public health / spread of
disease.

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 History of the NSW Provisions
Prisons Act 1899 No 27 (NSW)

Prisoners Detention Act 1908 (NSW)

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 Prisons Act 1952 (NSW)
• Repealed the Prisons Act 1899, and Prisoner’s Detention Act
1908

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Hansard, 18 March 1952
NSW Legislative Assembly
Mr Clarence Martin - AG
and Mr Ken McCaw

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 Correctional Centres Act 1952
• “Re-badged” Prisons Act 1952 (enacted 1996)
• Section 16
(1)  Every inmate shall be supplied with such medical attendance, treatment
and medicine as in the opinion of a medical officer is necessary for the
preservation of the health of the inmate and of other inmates and of
correctional officers ….

(2)  Where in the opinion of a medical officer the life or health of an inmate is
likely to be endangered or seriously prejudiced by the failure of such inmate
to undergo medical treatment or the life or health of any other inmate or
correctional officer is likely to be endangered or seriously prejudiced by such
failure, the inmate may be compelled to submit to such medical treatment as
is ordered by a medical officer.
…
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“However, the provision in section 16 (2) is even
more remarkable. The powers given to the
medical officer are extraordinary. They would
enable him to compel any prisoner, for example,
to undergo even a lobotomy if he felt that the
prisoner endangered another prisoner.”
(Nagle Royal Commission Report 1978)

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Crimes (Administration of Sentences) Act 1999
• Replaced Correctional Centres Act (on 3 April 2000)
• Section 73
(1) A health practitioner may carry out health treatment on an inmate
without the inmate’s consent if of the opinion that it is necessary to do
so in order to save the inmate’s life or to prevent serious damage to the
inmate’s health.
(2)  Health treatment … … taken to have been carried out with the
inmate’s consent.
(3)  Nothing in this section relieves a health practitioner from liability … .
(4) In this section
health practitioner means a medical practitioner … or a dentist… .
……
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 Crimes (AOS) Act Amendment Bill 2000
• New section 72A
‘An inmate must be supplied with such medical attendance, treatment and
medicine as in the opinion of a medical officer is necessary for the preservation of
the health of the inmate, of other inmates and of any other person.’

• Amendment of s73
(1) A medical practitioner (whether that practitioner is a medical officer or not)
may carry out medical treatment on an inmate without the inmate’s consent if
the Chief Executive Officer, Justice Health is of the opinion, having taken into
account the cultural background and religious views of the inmate, that it is
necessary to do so in order to save the inmate’s life or to prevent serious damage
to the inmate’s health.

(4) If the Chief Executive Officer, Justice Health is not a medical practitioner….. a
person, designated by the Chief Executive Officer … who is a medical practitioner.

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• “I would mention that it is rare for a inmate in
the NSW correctional system to refuse to
undergo medical treatment to the point that
the inmate’s life is in danger or the the point
that the inmate’s health may be seriously
damaged”

– Hon E. M. OBEID, second reading speech NSW

Legislative Council

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 February 2016 Amended Regulation

Reg 131 - Use of force in dealing with inmates

…
(4) Subject to subclauses (1)-(3), a correctional officer may have recourse
to force for the following purposes:
…
(i1) to allow a medical practitioner to carry out medical treatment on
an inmate in accordance with section 73 of the Act
…

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Section 73 in
Practice

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 Use of Section 73 in NSW
• Rarely enacted
• Considered in hunger strikes or difficult cases
of self-harm
• Not used for patient’s lacking capacity due to
acute mental illness
• Use of force to implement now provided
under Crimes (AOS) Regulation 131(i1)

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s73 - Internal NSW Justice Health Policy

• Use only in extraordinary circumstances

• Given reasonable opportunity to consent
• Mental health condition preferentially
managed under Mental Health Act
• Legal Advice suggested on each occasion.
• Medical Assessment and Declaration Form

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s73 Justice Health Policy: Specific factors to
consider:

• Wishes of patient and their capacity to make decisions

regarding their treatment
• Prognosis
• Reasons for refusal of treatment
• Objective needs of the patient
• Advanced care directive made by the patient
• Views of any enduring guardian and where appropriate the
patient’s family
• (in addition to cultural background and religious views)

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 Justice Health Case 1
• 2015 Extreme High Risk inmate hunger strike
– Refused food, accepted water
– Significant pressure from co-inmates
– ‘did not want to die’
– Delegation given to Clinical Director Primary Care
as per s73(4) – not used.
– Ultimately patient restarted diet.

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 Justice Health Case 2
• 2016 Self Harming patient
– Repeated episodes of ingestion foreign bodies
– Self-harm abdominal wounds
– Repeated admissions to acute hospital Emergency
– Major personality disorder / manipulative conduct
– Secondary gain
– Request from ED and Surgical staff for clarity on
consent.
– Orders considered, not ultimately enacted.
– Managed via strict care plan between acute hospital
and Justice Health
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 International Perspectives
Commissioner of Correction & another vs. Kenneth
Myers (Massachusetts US) 1979

- 24 year old, mentally competent, unmarried

person serving 7 year sentence
- Developed renal failure (Glomerulonephritis)
- Refused renal dialysis unless returned to minimum
security
- Refusal not related to any religious grounds, or
wish to end his life.
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• Court considered preservation of life versus right of
self- determination

• “… However, the State's interest in upholding

orderly prison administration tips the balance in
favor of authorizing treatment without consent. Our
evaluation of this interest takes account of the
threat posed to prison order, security, and discipline
by a failure to prevent the death of an inmate who
attempts to manipulate his placement within the
prison system by refusing life-saving treatment.”

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 2015 Israel Prison Ordinance No 48
• Allows Commissioner of Prisons to apply to District
Court to approve medical care to prisoner on hunger
strike.
• Includes application to an ethics committee, along
with prisoner’s submissions.
• Hearing and legal representation
• If authorised, medical care may be given against their
will – exception to usual prohibitions.
• Considerations of State security

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United Nations Standard Minimum Rules for the
Treatment of Prisoners (Nelson Mandela Rules)
“…except for those lawful limitations that are demonstrably necessitated by
the fact of incarceration, persons deprived of their liberty shall retain their
non-derogable human rights and all other human rights and fundamental
freedoms”

Health Care Services - Rule 32

1. The relationship between the physician or other health-care professionals
and the prisoners shall be governed by the same ethical and professional
standards as those applicable to patients in the community, in particular:
….
• (b) Adherence to prisoners’ autonomy with regard to their own health and
informed consent in the doctor-patient relationship;

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 Analysis and Conclusion
• Historical basis of compulsory medical treatment
in NSW – not the reason for its current use.
• Relatively broad provision with wide discretion
and little legislative guidance on limitations.
• Strengthened in very recent times by CSNSW.
• Justice Health NSW has interpreted based on
fundamental ethical and human rights constructs
(‘legalism’).

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Questions?

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