searching patients, suspicious behaviour, unknown substance, weapons or crime within the ED

see also:

• medico-legal issues in the ED
• managing violence or the aggressive patient in the ED
• https://www2.health.vic.gov.au/about/key-staff/chief-psychiatrist/chief-psychiatrist-guidelines/criteria-or-searches-maintain-safety-in-inpatient-unit-for-patients-visitors-staff
• 2018 ABC news: failure to search MH patients allegedly contributes to two deaths in a NSW hospital
• WH procedure on patient or visitor searches - intranet only

• each hospital will have their own policies and procedures relating to these matters dependant upon local laws

• see http://www.police.vic.gov.au/content.asp?document_id=25574

• any device (whether assembled or not) that can discharge a bullet/missile

• items considered inappropriate for general possession and use without a Chief Commissioner's Approval or a Governor in Council Exemption Order (GIC Exemption)
• To be eligible for a GIC a person must be able to demonstrate at the time of purchase, that they are a member of a club, group, organisations, or a class of person which has been granted a Governor in Council Exemption Order
• examples:
  • swords, crossbows, imitation firearms, martial arts weapons, daggers, certain knives (such as flick knives, non-metal knives excl. cutlery), articles designed to conceal weapons, body armour, capsicum spray devices, acoustic anti-personnel devices, taser, stun gun, extendable baton, dart guns, metal whips or cat o nine tails, slingshots, knuckle duster, flail, laser pointer > 1mW, mace, studded or weighted glove
  • as of 2025, it presumably also includes machetes or knives with blades longer than 20cm (unless it is a kitchen knife)

• are weapons that can be possessed, carried and used for legitimate purposes but may pose a potential danger to the community.
• specifically listed in the Control of Weapons Act 1990 and Control of Weapons Regulations 2011
• a person must not possess, carry or use a controlled weapon without a lawful excuse.
• examples:
  • knives (including kitchen knives) that are not listed as prohibited weapons
  • spear gun
  • baton or cudgel
  • bayonet
  • cattle prod

• includes:
  • any item carried with the intention of being used as a weapon; or
  • adapted or modified so as to be capable of being used as a weapon
• this may include any everyday items including tools, household items or sports equipment such as baseball bats
• a person must not possess or carry dangerous articles in a public place without lawful excuse

• lawful excuse include:
  • the pursuit of any lawful employment, duty or activity;
  • participation in any lawful sport, recreation or entertainment; or
  • the legitimate collection, display or exhibition of weapons.
• in relation to dangerous articles, it is also a lawful excuse to use the article for its intended purpose
• self-defence is not a lawful excuse

• a staff member who observes another person engaging in suspicious behaviour must notify the Security Team Leader immediately without confronting the individual

• an individual can only be legally detained against their will if either:
  • as part of a medical duty of care - see left at own risk / absconding patient / missing patient / competence, or,
  • they have been placed on a mental health assessment order or under section 351, or,
  • they have been detained for criminal reasons such as:
    • they are in police custody such as under police arrest, detained in remand, imprisoned or being detained by police while they conduct a search for weapons
    • under “citizen's arrest” within the hospital under the following circumstances:
      • the staff member has witnessed the crime; and
      • they believe on reasonable grounds that the arrest is necessary to prevent the continuation or repetition of the offence; protect the safety of any person (including the offender); or ensure the offender is apprehended;
      • and, for staff safety:
        • security are present; and
        • security have assessed that it is safe for the arrest to proceed
      • and the following statement is required:
        • I am placing you under citizen’s arrest and the police have been contacted – you are required to remain here until they arrive
    • or, police have authorized that an individual is detained until their arrival

• staff cannot search a patient or their belongings without the patient's consent or without lawful excuse, and any search should be conducted by security or in the presence of security and should only be done after risk assessment of need for search and request from the treating clinician
  • refusal for consent where concern exists may require:
    • escalation to hospital legal counsel or police for advice, and/or,
    • patient to be given the option of consenting or leaving the facility
  • a police officer is empowered to search a vehicle, or person and anything in their possession for a possible weapon without warrant if the person is in a public place in a designated area under CONTROL OF WEAPONS ACT 1990 - SECT 10I
  • hospitals may have a policy such that all searches are recorded not only in the patient's medical record but on Riskman incident management software
• all care must be taken when undertaking a search to ensure that no damage occurs to patient or visitor property, and that, in the case of a body search, it is performed away from public where possible.

• this ONLY applies to patients being transferred to or from a mental health facility NOT while they are an inpatient
• search may be carried out by an authorized person (police, ambulance paramedics, doctor engaged by a MH service, or a mental health practitioner) IF:
  • they reasonably suspect that the person is carrying anything that (this does NOT permit search just because the patient is under a mental health act, there must be reasonable suspicion):
    • presents a danger to health and safety of the person or another person, or
    • could be used to assist the person to escape
  • they explain the purpose of the search to the person to the extent that is reasonable in the circumstances
  • they inform the person the extent of the search:
    • whether they will be required to remove clothing during the search
    • why it is necessary to remove the person’s clothing
  • they request the patient's cooperation for the search
  • they conduct the search:
    • in a way that provides reasonable privacy for the person searched
    • as quickly as is reasonably practicable
    • if the person being searched is 16 years or younger, the search must be in the presence of a parent or, if a parent is not reasonably available, another adult
  • they extent of the search is limited to:
    • quickly running hands over the person’s outer clothing (a‘pat-down’ search) or passing an electronic metal device over or close to the person’s outer clothing (this should be by a person of same sex who may be the authorised person or a person under the direction of the authorized person)
    • requiring the person to remove their overcoat, coat or jacket and any gloves, shoes or hat and examining those items of clothing
    • requiring the person to empty their pockets or allow their pockets to be searched

• if an unknown or illegal substance is found, follow hospital procedures, which generally include:
  • if patient is not competent (eg. unconscious), contact senior staff and security
    • consider contacting the person responsible for the patient to remove the substance from the premises, or,
    • follow hospital policy which may include contacting the Executive Director of Medical Services or legal counsel to consider consent to confiscation and either identification or disposal of the substance in accordance with hospital procedures
  • informing patient or visitor that continued possession may be illegal and police will be notified if they do not leave the premises (assuming they are not detained) or allow staff to dispose the substance
  • if patient consents to submitting substance to staff, two authorised staff to place in a sealed container and place in the Schedule 8 safe from where pharmacist will collect and record the transaction the the drug register, and the sealed bag taken to pharmacy for usual processes of Disposal of Unknown Substance, unless forensic testing is required.
  • if patient refuses consent for this, consider contacting security and legal counsel and possible notification of police
  • in situations where identification of the Unknown Substance is considered, staff should assess the balance between breaching patient privacy, which may constitute as trespass, and the risk of patient or public harm if action is not taken

• if a weapon is found or suspected, follow hospital procedures which usually entail:
  • if a weapon is suspected or seen, call security immediately
  • the decision to search a patient and/or patient’s belongings must be based on an assessment that considers history, current mental state, level of co-operation and the reasonable belief that a patient possesses a dangerous item.
  • if patient gives up the weapon, security will place it in a locked space, call police to collect it, and the weapon may be possible to be collected from police at a later date
  • if refuses to give up weapon, call an Emergency Code Black and call police