Intoxicated and responsible

An update from a regular series written by Mr Robert Wheeler, director, department of clinical law, where he considers various aspects of clinical law that our nursing and medical staff rely on when caring for patients.

The intoxicated patient’s responsibility?

It may be worth reflecting on why intoxication has a bearing on a person’s responsibility for the way they behave in hospital. Intoxication impairs a person’s (P) perception and judgement so he (or she) may fail to be aware of relevant facts, or to foresee results of his conduct....of which he would certainly have been aware, or have foreseen, if he had been sober

So intoxication may be the reason why P lacked the intention to abscond or refuse treatment. We should realise that if whilst intoxicated P still intended to behave as he did, then it follows that he plainly intended to refuse treatment or to abscond. People who despite intoxication still intend either to abscond or refuse, or are aware of the risk that they take in so doing, retain responsibility for their decision or their recklessness.

In the criminal law, this remains true even if intoxication impairs or negates a person’s ability to judge between right and wrong; or to resist temptation or provocation. That remains true even if, in a drunken state, P found the impulse to act as he did irresistible. An intoxicated intent is still intent.

Sometimes, a person seeks later to excuse themselves on the basis that they made a mistake in absconding or refusing treatment. Evidence that they were intoxicated at the time they made this decision could support the notion that they did indeed make a mistake. Old cases from the criminal law provide graphic illustrations of such mistakes. In 1748 a child’s nurse, very drunk at a christening, put the baby on the fire in mistake for a log of wood. In 1951, a drunken man mistakenly believed that his friend, lying on the bed, was a theatrical dummy; and stabbed him to death. In both cases the assailants were found to have made a mistake, neither intending the tragic result. If the accused in either case had been sober, it is unlikely that a jury would have believed that such unreasonable mistakes could have been made. The intoxication is relevant only because the making of the mistake becomes more credible, and it may be that this is applicable in the healthcare setting, where a drunken patient absconds or refuses treatment.

This only helps us in hindsight. But at least in a patient who once sober readily accepts that their absconding or refusal was a mistake (and in the context of the circumstances this explanation is believable) there is room for optimism that the event may not be repeated. Similarly, where a patient denies that in his intoxicated state he foresaw the obvious consequences of his action, this failure of foresight becomes more plausible than it would have, had he been sober.

Judges in the criminal courts have in the past pondered whether intoxication can only be a defence if it rendered the accused incapacitated, thus unable to form the intent necessary to commit the crime. Subsequent judgements and commentators disagree, pointing out that in the example of the nurse at the christening, she may have had capacity to form the intent to tend the fire; and by extension, the capacity to form the intent to kill the baby. But crucially, she did not plead that she lacked capacity. Instead, her defence was that she did not intend to kill, and that she made a tragic mistake. Her intoxication was highly relevant to how the mistake was made.

Faced with the intoxicated patient who attempts to abscond, we may not have the luxury of the moment calmly to determine whether we are dealing with drunken intent, or a mistake founded in intoxication. We have to deal with the patient as we find them on the basis of clinical practice, and take steps, based on the clinical situation, which seem reasonable at the time. However, once the emergency is passed and the patient is sober, these principles drawn from the criminal law may help us better understand why the patient behaved as she or he did, and whether this is likely to happen again. Hardly a giant advance, but better than no progress at all. The patient’s insight might be enhanced by acknowledging they are prone to recklessness or mistaken behaviour when intoxicated. If so, a few at least may decide to choose more carefully when, where and with whom they become inebriated.

Robert Wheeler
Department of clinical law, April 2021