A correspondent notes that:
In Victoria, police have a power of arrest for drunk persons under section 13 of the Summary Offences ACT.
But, I’m asked:
What can be done for drug affected persons? There is no arrest power. How does the medical duty of care apply and what powers can be exercised by police and ambulance personnel to take these persons off the street?
The Summary Offences Act 1966 (Vic) s 13 says ‘Any person found drunk in a public place shall be guilty of an offence’. There is a further offence of being ‘drunk and disorderly’ (s 14). These are minor offences so one would not, normally, expect a person to be arrested for an offence under the Summary Offences Act. Even though these are summary (minor) offences there is a power to arrest. Section 15(1) says ‘A person found drunk, or drunk and disorderly, in a public place may be arrested …’ and once arrested or brought into police custody, a police officer ‘must ensure the person is lodged in safe custody’ (s 15(3)).
The term ‘drunk’ is not defined. The Oxford English Dictionary (Online) defines drunk as, relevantly, ‘Affected by alcohol to the extent of losing control of one’s faculties or behaviour.’ The term ‘drunk’ certainly implies affected by alcohol. If the Act used the term ‘intoxicated’ it might be easier to infer that it is intended to apply to those affected by either alcohol or drugs, or both.
So what’s to be done with a drug, rather than an alcohol affected person? It depends upon what they are doing, there are a myriad of offences that may be committed and which may justify an arrest – for example behaving ‘in a riotous indecent offensive or insulting manner’ (Summary Offences Act 1966 (Vic) s 17); behaving ‘in a disorderly manner in a public place’ (s 17A) and no doubt other potential offences depending on the circumstances.
The Crimes Act 1958 (Vic) s 458 says:
Any person, whether a police officer or not, may at any time without warrant apprehend … any person—
(a) he [sic] finds committing any offence (whether an indictable offence or an offence punishable on summary conviction) where he believes on reasonable grounds that the apprehension of the person is necessary for any one or more of the following reasons, namely—
(ii) to preserve public order;
(iv) for the safety or welfare of members of the public or of the offender;
If a person is arrested and is affected by drugs or alcohol, or injured, then the police will owe them a duty to take care of their safety which would include ensuring that their custody arrangements are safe, and if necessary arranging for appropriate medical care.
In short, if the person is drunk and disorderly they can be arrested by virtue of the Summary Offences Act s 15. If the person is affected by drugs and disorderly they can be arrested by virtue of a combination of the Summary Offences Act s 17A and the Crimes Act 1958 s 458. If the person is simply affected by drugs, there is no power to arrest – that is although there is an offence of being drunk in a public place (Summary Offences Act s 13) there is no offence of simply being affected by drugs whilst in a public place.
If however a person is affected by drugs and in need of care, the doctrine of necessity will apply. Remember (see In Re F  2 AC 1 discussed in The doctrine of necessity – Explained (January 31, 2017)) that this doctrine says that:
… to fall within the principle, not only (1) must there be a necessity to act when it is not practicable to communicate with the assisted person, but also (2) the action taken must be such as a reasonable person would in all the circumstance take, acting in the best interests of the assisted person.
If the person, by virtue of their drug induced intoxication, is posing a risk to themselves and they are not competent to make decisions on their own account, they could be detained for protective purposes provided that conduct is that which ‘a reasonable person would in all the circumstance take, acting in the best interests of the assisted person’ and would not be liable for the payment of damages.
With respect to criminal offences (eg assault) necessity has been abolished in Victoria (Crimes Act 1958 (Vic) s 322S). In it’s place is a defence for ‘sudden or extraordinary emergency’. This defence (s 322R) applies:
(a) the person reasonably believes that—
(i) circumstances of sudden or extraordinary emergency exist; and
(ii) the conduct is the only reasonable way to deal with the emergency; and
(b) the conduct is a reasonable response to the emergency.
If the drug affected person is posing an urgent threat to themselves or others that could constitute an emergency and in the right circumstances justify taking action to restrain the person.
Finally, if the person is posing a threat to others reasonable force may be used to protect those persons. The Crimes Act 1958 (Vic) s 322K(2) says:
A person carries out conduct in self-defence if—
(a) the person believes that the conduct is necessary in self-defence; and
(b) the conduct is a reasonable response in the circumstances as the person perceives them
The circumstances for self-defence includes the defence of another person (s 322K, note 2). Again, if a drug affected person is posing a threat to the health and safety of others, police or anyone can use reasonable force to restrain and detain them if that is the reasonable response to the threat.
Finally, in Victoria, a ‘mental illness is a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory’ (Mental Health Act 2014 (Vic) s 4). An intoxicated person may demonstrate those symptoms but being intoxicated is not the same as being mentally ill and the mere fact that a person uses drugs or consumes alcohol is not evidence of mental illness (s 4(2)(l)).
Having said that it may be hard to determine whether a person is mentally ill or merely intoxicated and of course they may be both mentally ill and intoxicated (see health.vic ‘Assessment of intoxicated persons’ but note that this refers to the now repealed Mental Health Act 1986 (Vic)). Even though the fact ‘that the person uses drugs or consumes alcohol’ is not evidence of mental illness, that ‘does not prevent the serious temporary or permanent physiological, biochemical or psychological effects of using drugs or consuming alcohol from being regarded as an indication that a person has mental illness’ (s 4(3)). So a person who is intoxicated by drugs and who is demonstrating the symptoms of mental illness (ie significant disturbance of thought, mood, perception or memory) may be dealt with under the Mental Health Act 2014 (Vic). As health.vic says:
The presence of alcohol and/or drug intoxication does not preclude early assessment, although it may indicate the need for further assessment when the person is no longer intoxicated. When a request for assessment is received, it is not appropriate to insist that the person be free from the effects of alcohol and/or drugs. This includes requests by police for assessment of persons held in police cells when there is a concern that mental illness or risk of suicide is present in a person who is also intoxicated…
So being affected by drugs is not to be mentally ill but it may suggest, or mask symptoms of mental illness and those empowered under that Act may take action if they believe that the criteria in the Act are established. They cannot use the Mental Health Act as a shortcut or ‘pretend’ there’s a mental illness to justify a detention because it would be convenient.
It is indeed the case that there is a general and clear power to arrest a person who is drunk or drunk and disorderly in a public place in Victoria. There is no equally clear provision with respect to a person affected by drugs. However, the various provisions in the Summary Offences Act 1966, the Crimes Act 1958 and the Mental Health Act 2014 would, I suggest give sufficient power to police, and others, to detain drug affected persons who are posing a threat to themselves or others or acting in a disorderly way. There is however no power to detain a person who is affected by drugs simply because they are so affected.