Potentially incapable patients objecting to treatment: doctors’ powers and duties

Kerri Eagle and Christopher J Ryan
Med J Aust 2014; 200 (6): 352-354. || doi: 10.5694/mja12.11814


  • Generally, a patient may only be assessed and treated with his or her consent.

  • It is difficult to interpret the law regarding doctors’ powers and duties to assess and treat in cases where a patient refuses to accept medical advice but it is unclear whether the patient has decision-making capacity (DMC) or whether they are mentally ill.

  • An examination of legal principles in this area suggests that there is a limited justification for doctors to detain a person for the purpose of assessment if they have good reason to suspect the person may either lack DMC or be mentally ill and if failure to detain the person is likely to lead to serious harm.

  • This limited justification to detain would only apply for as long as the uncertainty about DMC or mental illness prevailed.

  • Doctors have a duty to provide appropriate advice to patients who want to leave their care in circumstances where medical assessment or treatment may be required. Whether there is also a duty to detain someone in this situation is less clear, but we provide guidance to health care practitioners faced with this situation.

Please login with your free MJA account to view this article in full

  • Kerri Eagle1
  • Christopher J Ryan2

  • 1 Justice and Forensic Mental Health Network, Sydney, NSW.
  • 2 Discipline of Psychiatry and Centre for Values, Ethics and the Law in Medicine, University of Sydney, Sydney, NSW.


Competing interests:

No relevant disclosures.

  • 1. Roberts PA. The help that John does not want. Med J Aust 2014; 200: 347.
  • 2. Eagle K, Ryan C. Mind the gap: the potentially incapable patient who objects to assessment. ALJ 2012; 86: 685-696.
  • 3. Re T (Adult: Refusal of Treatment) [1992] EWCA Civ 18.
  • 4. Hunter and New England Area Health Service v A [2009] NSWSC 761.
  • 5. Scott v Wakem (1862) 176 ER 147.
  • 6. Watson v Marshall & Cade [1971] HCA 33.
  • 7. Anderdon v Burrows (1830) 172 ER 674.
  • 8. In re Hawke (1923) 40 WN (NSW) 58.
  • 9. Antunovic v Dawson & Anor [2010] VSC 377.
  • 10. Rogers v Whitaker [1992] HCA 58.
  • 11. Wang v Central Sydney Area Health Service [2000] NSWSC 515.
  • 12. Ms B v An NHS Hospital Trust [2002] EWHC 429 (Fam).
  • 13. St George’s Healthcare NHS Trust v S [1998] 3 All ER 673.
  • 14. Hunter Area Health Service & Anor v Presland [2005] NSWCA 33.
  • 15. Stuart v Kirkland-Veenstra [2009] HCA 15.
  • 16. The Australian Capital Territory v Crowley, The Commonwealth of Australia and Pitkethly [2012] ACTCA 52.


remove_circle_outline Delete Author
add_circle_outline Add Author

Do you have any competing interests to declare? *

I/we agree to assign copyright to the Medical Journal of Australia and agree to the Conditions of publication *
I/we agree to the Terms of use of the Medical Journal of Australia *
Email me when people comment on this article

Responses are now closed for this article.