Welcome to the first post for 2016. In this post we revisit the question of paramedics and police detaining and treating people under mental health legislation. This question comes from a ‘newly minted’ paramedic from Victoria:
Recently I attended a case where an ambulance was requested by police to transport a patient under s351 of the Mental Health Act 2014 (Vic). Essentially this person had had an argument with his partner during which he had threatened to kill himself with a knife. He did not hurt himself, and after making the threat he put the knife down however would not leave the premises and was quite emotional, and his partner requested the police. The patient was apprehended under s351 and an ambulance was requested for transport. During my assessment I ascertained that the patient had no history of mental illness, did not have any “significant disturbance of thought, mood, perception or memory” at the time, and his emotional distress was (although extreme) not evidence enough of mental illness. In my opinion there was also no immediate risk to himself or other people. Furthermore based on reading your post “Paramedics and the mentally ill – Queensland” [(February 13, 2014)], I understand that threat of suicide is not enough to indicate mental illness. The patient calmed down in my presence however was distressed by the fact that being placed under a s351 would leave a record, and the loss of control added to sundry other personal issues he was dealing with; however he stated that he would be happy to attend hospital voluntarily for access to other services including a mental health assessment. The police however proceeded with the s351 and I transported the patient to hospital with them in attendance despite my suggestions that this was unnecessary, and the patient became distressed once more.
I have the following questions:
- The police have powers to transport patients under s351 without exercising clinical judgement as to whether the person has mental illness (ss 2). What effect does this have on their decision that someone has a mental illness? Does it to mean that a threat to commit suicide, or the patient’s distress, is enough for them to assume this is so? To me this gives license to ignore such things as the High Court ruling that attempted suicide “is not of itself sufficient to support an inference that the person is mentally ill” as to consider this would be some form of making a clinical judgement. (This may be picking at straws…)
- The police can use s351 to apprehend those they feel are ill and at risk, but If I don’t believe that this is true am I assaulting the patient that refuses transport even if they are under a s351? The Act states that paramedics are able to sedate or restrain patients for transport to a mental health facility, however it is not clear if this includes patients who I do not feel fit the criteria.
- On a slight tangent, we regularly attend patients who are extremely agitated and under the effects of drugs, under what authority are paramedics able to sedate them for transport, even if they refuse? This too would seem like an assault, however leaving the person would seem to leave them or others at risk of harm. These types of patients are regularly sedated, and I am curious to know if this is in fact lawful.
I have spent many hours attempting to find the answers for myself, however resources for these kinds of questions are not always so readily available, or obvious. I would appreciate your opinion on this matter, and also to thank you for providing this resource, and for no other purpose than to educate.
The Mental Health Act 2014 (Vic) s 351 says
(1) A police officer … may apprehend a person if the police officer … is satisfied that—
(a) the person appears to have mental illness; and
(b) because of the person’s apparent mental illness, the person needs to be apprehended to prevent serious and imminent harm to the person or to another person.
(2) A police officer … is not required for the purposes of subsection (1) to exercise any clinical judgement as to whether the person has mental illness…
(4) A person apprehended under this section is subject to the custody of the police officer … until released from that custody in accordance with this section.
(5) As soon as practicable after apprehending a person under this section … a police officer must arrange for the person to be taken to—
(a) a registered medical practitioner or mental health practitioner; or
(b) a public hospital, denominational hospital, privately-operated hospital or public health service within the meaning of the Health Services Act 1988 to enable a registered medical practitioner or mental health practitioner—
to examine the person…
For the purpose of the Act, a ‘mental illness’ is ‘a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory’ (s 4).
To be honest I have no idea what it means to say ‘A police officer … is not required … to exercise any clinical judgement as to whether the person has mental illness…’ The Explanatory Memorandum lodged with the Bill provides no further detail. In her second reading speech (delivered to parliament when introducing the Bill) the Minister for Mental Health, Ms Wooldridge said:
The bill enables a police officer to apprehend a person who appears to have a mental illness so as to prevent serious and imminent harm to the person or another person.
It is intended to give police officers maximum flexibility about where they can take a person to be examined. In practice police will often take an apprehended person to the emergency department of a public hospital to be examined by a medical practitioner.
The bill will support this existing practice by enabling a police officer to take an apprehended person to a public hospital, denominational hospital, privately operated hospital, or public health service within the meaning of the Health Services Act 1988. The police officer will then be able to release the person from police custody into the care of the relevant hospital or health service. The hospital or health service must then arrange for the person to be examined as soon as practicable by a registered medical practitioner or mental health practitioner. This is intended to allow police to return to their other duties as soon as practicable without the need to wait until the examination has been completed. (Victorian Parliament, Legislative Assembly Hansard, 20 February 2014, p 478).
That also adds no detail. To exercise their powers under the Act, Police do have to make a judgement as to whether or not the criteria set out in subsection (1) apply. Those criteria are that the person appears to have mental illness and needs to be apprehended to prevent serious and imminent harm to themselves or another person. To decide whether or not the person appears to have a mental illness the police have to form a view as to whether or not they appear to have ‘a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory’. The police cannot act unless they hold those views that is they must make a decision whether one calls that a ‘clinical decision’ or something else.
The former Act, the Mental Health Act 1986 (Vic) s 10(1A) used to say:
A member of the police force is not required for the purposes of sub-section (1) to exercise any clinical judgment as to whether a person is mentally ill but may exercise the powers conferred by this section if, having regard to the behaviour and appearance of the person, the person appears to the member of the police force to be mentally ill.
Although that language is not repeated in the 2014 Act it could be inferred that again that is what is intended – an honest belief that the person appears to be suffering from a mental illness is sufficient. It is still the case however that the police (as the constables in Stuart v Kirkland-Veenstra  HCA 15 did) must consider whether or not the person has ‘a significant disturbance of thought, mood, perception or memory’. The mere fact that they are contemplating suicide would not be sufficient to demonstrate that criteria.
There are two relevant torts here, they are assault and false imprisonment. Assault is the actual and intentional application of physical force. False imprisonment involved detaining someone, restraining their liberty so they are not longer free to go where they wish, without lawful justification.
If a police officer has detained a person under s 351 then they are ‘subject to the custody of the police officer’. In the circumstances the fact that they are in an ambulance and are not free to go about their business would not represent a false imprisonment by the ambulance paramedic. The detention is by the police so whether it’s lawful or not would depend on the issue of whether or not the police believe that the person is mentally ill and needs to be detained.
The use of force is a different issue. The Mental Health Act 2014 (Vic) s 350 says:
(1) … if a person is required under this Act to be taken to or from a designated mental health service or any other place—
(a) an authorised person may use bodily restraint on the person if—
(i) all reasonable and less restrictive options have been tried or considered and have been found to be unsuitable; and
(ii) the bodily restraint to be used is necessary to prevent serious and imminent harm to the person or to another person; and
(b) a registered medical practitioner may administer sedation to the person or direct a registered nurse or ambulance paramedic to administer sedation to the person if—
(i) all reasonable and less restrictive options have been tried or considered and have been found to be unsuitable; and
(ii) the sedation to be administered is necessary to prevent serious and imminent harm to the person or to another person.
(2) Subsection (1)(b) does not limit the power of a registered nurse or ambulance paramedic to administer sedation within the ordinary scope of his or her practice.
The term ‘authorised person’ includes police officers and ambulance paramedics.
If the person has been detained under s 351 and police are relying on the ambulance service to assist with the transport of the person then they are a person required ‘to be taken to or from a designated mental health service or any other place’. As an ‘authorised person’ the paramedic may only use force if the criteria in s 350(1)(a), above, apply. If the paramedic thought that the use of force was not justified then any use of force would be an unlawful assault.
The same is true with the use of sedation. A doctor who is present at the scene may direct a paramedic to administer medication and the question of whether or not the criteria in s 350(1)(b) have been met will be a matter for the practitioner’s judgment. If on the other hand the doctor is not there but has authorised the use of sedation if required, then the paramedic would be justified and should refrain from sedation if on presentation ‘less restrictive options’ are appropriate.
A police officer cannot direct a paramedic to administer sedation. The use of sedation in the absence of a medical direction is a matter for the paramedic. Ambulance Victoria’s Clinical Practice Guideline A0708 ‘The Agitated Patient’ provides justification for sedation in appropriate cases. The decision of whether or not the relevant conditions exist is a matter for the paramedic.
In short detaining a patient in the ambulance who is ‘in custody’ under s 351 will not be a false imprisonment by the paramedic but that doesn’t justify the use of force or sedation by the paramedic if he or she does not feel the criteria in s 350 or CPGA0708 don’t apply.
Patients who are ‘extremely agitated and under the effects of drugs’ may be sedated if the criteria in A0708 apply. The principle is the one of necessity. If it is not possible to communicate with the patient and the treatment is necessary and in the patient’s best interests (and not for the paramedic’s convenience) then it may be administered without consent.
If the patient is competent and refusing treatment, even though treatment is necessary, then there is no justification for imposing treatment including sedation.
As s Lord Justice Staughtan said in In Re T  EWCA Civ 18, :
The notion that consent or refusal of consent may not be a true consent or refusal presents a serious problem for doctors… The surgeon will be liable in damages if he operates when there is a valid refusal of consent, and liable in damages if he fails to operate in accordance with the principle of necessity when there was no valid decision by the patient…
For paramedics that means if the person is competent and refuses treatment so be it. If you then provide treatment, including sedation, that would be an assault. If, on the other hand, a subsequent review comes to the conclusion that the patient’s refusal was not an effective refusal, then there may be liability for not providing the necessary treatment (see the discussion in Tasmania – Alcohol affected patient refuses treatment and is not guilty of assaulting police – Part 1 (October 5, 2015)).
My conclusions are:
- The reference to ‘clinical judgement’ in s 351(2) means that police don’t need to do the sort of diagnostic tests that one would expect from a health professional but that does not mean that they do not have to make a genuine, honest judgment as to whether the criteria in s 351(1) apply. Even if that is not called a ‘clinical judgement’ it will require a judgment that the person appears to be suffering from a mental illness as defined.
- Police may detain a person under s 351 and transporting a person and thereby continuing that detention will not be a false imprisonment by the paramedic. The use of force, and sedation, would require the paramedic to be satisfied that the criteria in s 350 and or CPGA0708 apply. A paramedic should not ‘sedate or restrain patients for transport to a mental health facility’ if they do not feel that these criteria apply.
- The use of sedation to treat drug affected patients is justified by the doctrine of necessity. For that doctrine to apply it has to be the case that the person cannot give effective consent or refusal and the treatment is reasonable and in the patient’s best interest. If the patient is competent a refusal of treatment, even if a poor decision, must be honoured.