Does a brain injury equal a mental disturbance?

That is the question implied by a NSW Ambulance paramedic who writes:

Where a patient does not have a diagnoses/ known history of a mental health illness, but due to a current situation (drug/alcohol intoxication, head injury, organic cause eg: hypoxia), they are unable to demonstrate competency and capacity to make a decision ie; they cannot receive, believe, retain & explain, does that deem the patient to be “mentally disturbed”, and thus, able to fit within the scope of section 20 and other relevant sections to the Mental Health Act (NSW)?

The Mental Health Act 2007 (NSW) refers to a person who is mentally ill and a person who is mentally disordered.  Section 14(1) says:

A person is a mentally ill person if the person is suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary:

(a) for the person’s own protection from serious harm, or

(b) for the protection of others from serious harm.

Mental illness (s 4):

… means a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms:

(a)       delusions,

(b)       hallucinations,

(c)        serious disorder of thought form,

(d)       a severe disturbance of mood,

(e)       sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a)-(d).

A person is mentally disordered (s 15) if their:

… behaviour for the time being is so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control of the person is necessary:

(a) for the person’s own protection from serious physical harm, or

(b) for the protection of others from serious physical harm.

A person can be mentally disordered whether they are suffering a mental illness or not.

Section 20 says:

An ambulance officer who provides ambulance services in relation to a person may take the person to a declared mental health facility if the officer believes on reasonable grounds that the person appears to be mentally ill or mentally disturbed and that it would be beneficial to the person’s welfare to be dealt with in accordance with this Act.

The term ‘mentally disturbed’ used in this section, and in s 22 (Detention after apprehension by police) is not defined, but it must mean something other than ‘mentally ill’ or ‘mentally disordered’.   Section 22(1) says:

A police officer who, in any place, finds a person who appears to be mentally ill or mentally disturbed may apprehend the person and take the person to a declared mental health facility if the officer believes on reasonable grounds that:

(a) the person is committing or has recently committed an offence or that the person has recently attempted to kill himself or herself or that it is probable that the person will attempt to kill himself or herself or any other person or attempt to cause serious physical harm to himself or herself or any other person, and

(b) it would be beneficial to the person’s welfare to be dealt with in accordance with this Act, rather than otherwise in accordance with law.

In State of NSW v Talovic [2014] NSWCA 333 the New South Wales Court of Appeal had to consider the scope of s 22.  In his judgment (at [9]) Basten JA said that the use of the undefined term, ‘mentally disturbed’ ‘appears to be deliberate’.  He accepted that the term was intended to indicate that police and ambulance officers were not expected to make a clinical diagnosis based on the definitions in the Act (see [10]). In a report (Report 135: People with Cognitive and Mental Health Impairments in the Criminal Justice System – Diversion (June 2012)) the NSW Law Reform Commission ‘considered that the concept of being “mentally disturbed” was broader than that of being mentally ill or mentally disordered’ ([11]). Basten JA agreed with that conclusion.

Emmett JA compared both s 20 (the power of ambulance officers to detain) and s 22 (the power of police officers).  Where a person is being detained because a determination by a medical practitioner, that medical practitioner must form the view that the person is mentally ill or mentally disturbed.  He said (at [126]-[127]):

On the other hand, ambulance officers and police officers, who, in the present context, are clearly treated as lay persons, may exercise a power if it appears that a person is mentally ill or mentally disturbed.

Thus, a distinction is drawn between a person appearing to be mentally ill or mentally disturbed, on the one hand, and the formation of an opinion by a medical practitioner or accredited person as to whether or not a person is a mentally ill person or a mentally disordered person, on the other hand.

As for the term ‘mentally disturbed’, as [129] His Honour said: ‘A possible rationale for not defining a term required to be applied by police officers in the execution of their duty … is that police officers are not properly equipped to undertake a psychiatric diagnosis of members of the public before deciding whether to apprehend them pursuant to s 22.’  His Honour (at [131]) accepted that the term ‘mentally disturbed’ was ‘intended to encompass a wider class of persons than the other two terms [ie ‘mentally ill person’ and ‘mentally discorded person’]…’  He endorsed the conclusion from the NSW Law Reform that the term ‘mentally disturbed’ ‘appears to “embrace a broader group of people than those who would fall within the statutory definition of ‘mentally ill’ or ‘mentally disordered’”.

Comparing police and ambulance officers

His Honour noted a significant difference between the power of police and the power of ambulance officers.  A police officer can detain a person who appears, to the police officer, to be mentally ill or mentally disturbed (s 22); an ambulance officer, on the other hand, has to believe ‘on reasonable grounds that the person appears to be mentally ill or mentally disturbed’.  The requirement to have ‘reasonable grounds’ for the belief applies to ambulance officers, not police.   His Honour thought that the reason for the difference between s 20 and s 22:

… is that an ambulance officer, who necessarily has some medical training, is more equipped to make reasoned decisions in relation to mental health issues than someone (such as a police officer) with no such training. Having regard also to the practical realities of the execution of police officers’ functions, it is likely that the legislature intended that police officers should not need to meet the same standard as ambulance officers when forming a view as to whether a person appears to be mentally ill or mentally disturbed.

It follows that to meet the first part of the requirements in s 20 a police officer need only form the view that in his or her mind the person appears to be mentally ill or disordered. That is what we lawyers call a ‘subjective test’ – the question is what did this officer think or believe. The alternative is an ‘objective test’ – what would a reasonable person in all the circumstances have thought.  Emmett JA said (at [137]) there was ‘no warrant for reading into s 22(1) an objective requirement’ as to the officer’s belief.   That does not then justify detention, the police officer does have to form a view on ‘reasonable grounds’ (ie an objective view) of the matters set out in s 22(1)(a) and (b), quoted above.

As His Honour said at [138-[139] (emphasis in original):

Arbitrary apprehension by a police officer, based simply on a subjective view formed by a police officer, is not permitted by s 22… A police officer will not be entitled to exercise the power conferred by s 22(1) in relation to a person unless it is established that the person did in fact appear to the apprehending police officer to be mentally ill or mentally disturbed. If the police officer does not in fact have such a subjective state of mind, the apprehension will not be authorised, even if the officer had the relevant belief [regarding criminality or suicide] on reasonable grounds.

What that means is that if, for example a person is attempting or has attempted to kill themselves, but does not appear to be mentally ill or mentally disordered, there is no power to apprehend under s 22 even if one thinks such detention would be in the person’s best interests (see Stuart v Kirkland-Veenstra [2009] HCA 15).  And if the person has committed or is in the process of committing an offence and does not appear to be mentally ill or mentally disturbed, police will proceed in accordance with the criminal law, rather than mental health law.

Discussion

Let me return to the question:

Where a patient does not have a diagnoses/ known history of a mental health illness, but due to a current situation (drug/alcohol intoxication, head injury, organic cause eg: hypoxia), they are unable to demonstrate competency and capacity to make a decision ie; they cannot receive, believe, retain & explain, does that deem the patient to be “mentally disturbed”, and thus, able to fit within the scope of section 20 and other relevant sections to the Mental Health Act (NSW)?

For a paramedic to rely on s 20 of the Mental Health Act 2007 he or she must:

  1. Believe on reasonable grounds that the person appears to be mentally ill; or
  2. Believe on reasonable grounds that the person appears to be mentally disturbed; and
  3. Believe that it would be beneficial to the person’s welfare to be dealt with in accordance with this Act.

In the scenario described we’re not talking about point (1) ie a belief that the person is mentally ill. Mentally disturbed is something different to mentally ill or mentally disordered but it is still talking about a mental issue rather than say a physical injury. Exactly what that means is however open to interpretation but that is the point.  Ambulance officers (and police) are not being asked to make a clinical decision as to whether or not the person is mentally ill or mentally disordered (as defined in ss 14 and 15) but to make ‘a ‘street level’ judgment that clinical intervention is required’ (State of NSW v Talovic [2014] NSWCA 333, [11] (Basten JA)).

Next the ambulance officer must believe that it ‘would be beneficial to the person’s welfare to be dealt with in accordance with this Act’. The purpose of s 20 is to allow an ambulance officer to transport a person, perhaps contrary to their apparent wishes, ‘to a declared mental health facility’ (s 20).  If the patient is unable ‘to demonstrate competency and capacity to make a decision ie; they cannot receive, believe, retain & explain’ and that is due to ‘drug/alcohol intoxication, head injury, organic cause eg: hypoxia’ why would anyone want to transport them to a mental health facility?  Presumably they need to be taken to an emergency department at a general hospital.  If that is the case s 20 is irrelevant.

What appears to be the misconception (not just here but in the other discussions on s 20, see the list of posts at https://emergencylaw.wordpress.com/?s=mental+health) is that s 20 is some sort of licence to allow treatment, any treatment, without consent.  If a person wants to refuse treatment they must be mentally ill and we want some lawful authority to act in their best interests. In fact and in law we’ve moved from a paternalistic approach to recognising the primacy of individual autonomy.  As the High Court said in Rogers v Whitaker (1992) 175 CLR 479, [14] ‘… except in cases of emergency or necessity, all medical treatment is preceded by the patient’s choice to undergo it’.  This includes mental health treatment. The provisions of the Mental Health legislation in each state and territory sets up an exception to that rule and represents a departure from fundamental rights and freedoms.  As a result the legislation, including the NSW Act (see s 3), reinforces the right of the mentally ill to be involved in decision making, and to only be given treatment to which they consent, to the greatest extent possible.  When interpreting ‘a provision permitting a state authority to deprive a person of his or her liberty without consent, it is well-established that the statute should be construed in a manner protective of individual liberty’ (State of NSW v Talovic [2014] NSWCA 333, [3] (Basten JA)).

Section 20 isn’t some panacea where a person who is not competent for reasons such as ‘drug/alcohol intoxication, head injury, organic cause eg: hypoxia’ can be detained even if they appear to be resisting treatment because of some general concern that it is for their own good.  Where a person is incapable of consenting and where the treatment required is treatment in a hospital, s 20 has no role to play.  The justification for the treatment and transport of the patient is the doctrine of necessity (The doctrine of necessity – Explained (January 31, 2017)).

Conclusion

A paramedic may form the view that a person who is ‘unable to demonstrate competency and capacity to make a decision ie; they cannot receive, believe, retain & explain’ is mentally disordered if there is no explanation for their behaviour other than a condition that can be described as arising from their mental state.  Where there are other conditions that require treatment and correction, they are not mentally disordered, they are injured. Whether they are mentally discorded or not is irrelevant if the intention is to transport them to hospital rather than to a mental health facility for the purposes of assessment by a psychiatrist.