NSW Police and NSW Health have signed a new memorandum of understanding (the MoU) relating to the treatment and transport of the mentally ill (NSW Health – NSW Police Force, Memorandum of Understanding 2018 Incorporating provisions of the Mental Health Act 2007 (NSW) No 8 and the Mental Health Forensic Provisions) Act 1990 (NSW), 22 December 2017).

A regular correspondent has brought this to my attention and asked questions about the interplay between ss 20 and 22 of the Mental Health Act 2007 (NSW).   Section 20 says:

(1) 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.

(2) An ambulance officer may request police assistance if of the opinion that there are serious concerns relating to the safety of the person or other persons if the person is taken to a mental health facility without the assistance of a police officer.

Section 22 says:

(1) 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.

(2) A police officer may apprehend a person under this section without a warrant and may exercise any powers conferred by section 81 on a person who is authorised under that section to take a person to a mental health facility or another health facility.

We can see that, for an ambulance officer to detain a person, the officer has believe ‘on reasonable grounds that the person appears to be mentally ill or mentally disturbed’.  A police officer can detain a person where the person appears, to the police officer, to be mentally ill or mentally disturbed.  This is a subjective test (ie it depends on the police officer’s view, not the view a ‘reasonable person’ would form) and does not require police to ‘… make a psychiatric judgment; it is enough that a person appears to the police officer to be mentally disordered’ (State of New South Wales v Talovic [2014] NSWCA 333, [9]).  Whilst the officers impression that the person ‘… appears to be mentally ill or mentally disturbed’ need not be based on ‘reasonable grounds’, the officer must have reasonable grounds to believe that paragraphs (a) and (b) apply.

State of New South Wales v Talovic [2014] NSWCA 333

The difference between s 20 and s 22 was discussed in State of New South Wales v Talovic [2014] NSWCA 333 (and I thank my correspondent for drawing this case to my attention). In this case police entered the home of the plaintiff, Mr Talovic, detained him and arranged for an ambulance to transport him to a mental health facility at Concord Hospital (in Sydney) ([51]).  Mr Talovic sued for wrongful arrest, false imprisonment and trespass to land. The case turned on the interpretation of s 22 but in the course of the discussion, Emmett JA compared and contrasted s 22 with s 20.

First, noted Emmett JA, both sections refer to a person who ‘appears to be mentally ill or mentally disturbed’.  The term ‘mentally disturbed’ is not defined.  Other provisions, dealing with medical practitioners use the defined terms ‘a mentally ill person or a mentally disordered person’.  His Honour said (at [126]; emphasis in original):

… medical practitioners or accredited persons are required to form an opinion as to whether a person is (or, in s 23, may be) a mentally ill person or a mentally disordered person. 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.

With respect to the term ‘mentally disturbed’ His Honour said (at [128]-[129]):

It is somewhat curious that the term “mentally disturbed”, which appears in only two sections of an Act of some 201 sections, and which is not defined anywhere in the Act, should have been used in a provision that confers such an important power on police officers. It appears unlikely, however, that it is a mere drafting error…

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 concluded that whatever ‘mentally disturbed’ means it is wider than the defined terms of ‘mentally ill’ or ‘mentally disordered’ – that is police and ambulance officers don’t have to be satisfied that the person meets the statutory definitions; a concern about their mental state without being able to say that they are a ‘mentally ill person’ or a ‘mentally disordered person’ is sufficient.

Comparing s 20 with s 22, an ambulance officer’s opinion that the person is mentally ill or mentally disturbed must be based on reasonable grounds.  For police the person need simply appear, to the officer concerned, to be mentally ill or mentally disturbed ([135]).  A possible reason for the difference is (at [136])::

…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.

Before police can act, however, they have to have reasonable grounds to believe that the person is or has recently committed an offence, has attempted to take their own life or that it is probable (not merely possible) that they will attempt to take their own life or kill or injure someone else.  Police cannot detain a person who is having a mental health crisis but is posing not threat to themselves or to others.  This limitation does not apply to ambulance officers who may detain a person who appears to be mentally ill or mentally disturbed if it would be ‘beneficial to the person’s welfare’ to transport them for a mental health assessment.  It follows that ambulance officers need more evidence of mental disturbance before they can detain a person, but they can detain a person in a wider range of circumstances.

What’s this got to do with the MoU?

The MoU between NSW Police and NSW Health relates, relevantly, to cooperation between police officers and paramedics when dealing with persons who appear ‘to be mentally ill or mentally disturbed’.  Some questions are:

  1. If police detain a person under s 22, are NSW Ambulance Officers required to transport the person? What if the paramedics, as (soon to be registered health) professionals with ‘some medical training [and who are]… more equipped to make reasoned decisions in relation to mental health issues’ do not feel there are reasonable grounds to conclude that the person is ‘mentally ill or mentally disturbed’?
  2. Can police hand over care of the person or does the officer who forms the view required by s 22 have to travel with the person they have detained?
  3. If paramedics detain a person under s 20 are police required to assist when requested?

The MoU

The MoU says (at p. 10):

  • For example, police may detain a person under section 22 of the MHA [that is the Mental Health Act 2007 (NSW)] and paramedics may transport the person to hospital. Using this example, the person is able to be transported to hospital without the need for police attendance. However, should the person’s presentation and behaviour be deemed by attending staff to present sufficient risk, police may provide escort…
  • The decision to exercise powers under the MHA is based on an individual staff member’s assessment of the person. A staff member from one agency cannot insist that a staff member from another agency exercise their powers under the MHA in lieu of the first staff member exercising their powers.

With respect to transport it says (at p. 12):

The three main transport options available are NSW Ambulance vehicle, NSW Police vehicle and a community mental health or hospital vehicle.

The MoU goes on to say (pp. 12-13):

The most appropriate means of transport for a patient requiring clinical monitoring or clinical intervention is an ambulance… police vehicles are an undignified method of transport and their use should be limited to situations which pose a threat to public safety which cannot be safely managed within the resources available to other agencies. Lengthy journeys in police vehicles potentially expose people to increased risks i.e. clinical deterioration and adverse climatic conditions.

Later (on p. 13):

Where a person has been detained by police under section 22 of the MHA, Police may seek the assistance of NSW Health to transport the person to a DMHF. In these circumstances, police complete a section 22 form, provide a comprehensive verbal handover which includes communication of all factors relevant to enable an assessment of the current and potential risk of the person’s behaviour escalating, and hands the person and the form to the transporting NSW Health staff. The person may be transported to a DMHF in a NSW Health vehicle without the need for police attendance.

It should be noted that in this paragraph the reference is to ‘NSW Health’ and ‘NSW Health staff’, not NSW Ambulance which is the term used earlier.  It would appear that, although NSW Ambulance is part of NSW Health, the MoU does envisage a distinction between ‘ambulance’ and ‘health’.

Clinical disagreement

The MoU does give guidance as to what to do if there is clinical disagreement.  The processes for escalation are repeated in the MoU.  At p. 11 it says:

Staff are to make every effort to come to a shared agreement on how to respond to a particular situation. Where agreement cannot be reached about the nature and degree of risk or requirement for attendance escalation will occur to avoid compromises to the person’s care and the safety of staff. Where agency staff are dissatisfied with the on-site resolution of an interagency dispute, they should refer the issue to the local MOU committee for discussion and resolution using the MOU Dispute Resolution Form (Appendix E).

Relevant positions are identified within the agencies, including Police and Ambulance, as ‘person[s] within each agency with whom issues should be escalated’ (p. 11).

Question 1: If police detain a person under s 22, are NSW Ambulance Officers required to transport the person?

Assume police attend and form the view that a person appears to be ‘mentally ill or mentally disturbed’. They may call for ambulance assistance.  If the paramedics disagree, even if they agree that the person may appear to an untrained eye to be ‘mentally ill or mentally disturbed’ but there are no reasonable grounds for that belief, can they be compelled to transport the patient by police on the basis that police are exercising their powers under s 22?

My view is that the answer to that question must be ‘no’.  Anyone can call an ambulance if they believe an ambulance is required, but it does not compel the paramedics to treat the person or to treat them for the injury that the caller has identified.  Consider police who find a person who appears to them to have a brain injury. Paramedics are called and determine that the person is intoxicated, does not require medical attention and can be safely left in the care of their friends.  The mere fact that police called them, or police suspect a brain injury, does not compel the paramedics to treat the person as if they have a brain injury.  Paramedics have to form their own view.

As soon to be registered health professionals the obligation on paramedics to exercise their professional health care judgement for the benefit of their patients will be even stronger. No health care professional should, or can be compelled to, deliver treatment that in her or his opinion is not indicated by the patient’s condition and is necessary in the patient’s best interest.

The clinical disagreement provisions should apply and the police and paramedics should talk to explain their respective positions.  Ideally if the paramedics explain why they do not think the person is mentally ill or disturbed, the police would defer to their medical professionalism and accept that position.

If the police say ‘in my view the person appears to be mentally ill or mentally disturbed but there are no grounds to think they are a danger to themselves’ (as required by s 22(1)(a)) then the police have no power to detain the person. If the paramedics are of the view that the person does not, on reasonable grounds appear to be mentally ill or mentally disturbed, then they too would have no power to detain the person and the person must be left free to go about their business.

The controversial statement is on p. 10:

For example, police may detain a person under section 22 of the MHA and paramedics may transport the person to hospital. Using this example, the person is able to be transported to hospital without the need for police attendance.

That would be true if the paramedics agree with the police assessment that is the ambulance officer agrees that the person appears to be mentally ill or mentally disturbed and further, that there are reasonable grounds for that belief.  In that case the police have detained the person under s 22 and the ambulance officers continue that detention under s 20.   There is no need for police attendance as the detention by the ambulance officers is sufficient authority for the detention in the ambulance and then ongoing detention in the mental health facility (s 18).

As noted above, if the police think the requirement under s 22 has been met, but the paramedics do not, then the paramedics cannot be compelled to transport the person. It would be a travesty if paramedics took a person to a mental health facility and said, at handover, police wanted the person brought here but we don’t think they’re mentally ill.  That would be a derogation of their duty.  However I don’t think the MoU suggests that level of compulsion.  As noted I think the paragraph quoted above implies that the paramedics agree with the police assessment and that there are reasonable grounds for that assessment.

Question 2: Can police hand over care of the person or does the officer who forms the view required by s 22 have to travel with the person they have detained?

That’s a more controversial position.  As noted where the MoU says ‘Where a person has been detained by police under section 22 of the MHA, Police may seek the assistance of NSW Health to transport the person to a DMHF…’ I infer that means NSW Health staff and vehicles, other than ambulances. As noted ambulance officers have their own authority to detain a person under s 20.  Other health staff do not so if they are going to detain and transport a person, it has to be under the authority of someone else, in this case a police officer.

The authority of health staff to transport a person to a mental health facility is found in s 81. That section says:

The persons listed below may take to or from a mental health facility or another health facility any person who is authorised by this Act to be taken, or transferred, to or from the facility:

(a) a member of staff of the NSW Health Service,

(b) an ambulance officer,

(c) a police officer,

(d) a person prescribed by the regulations.

(Again noting a distinction between ‘a member of staff of the NSW Health Service’ and ‘an ambulance officer’).  To return to s 22 it says (emphasis added):

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 …

It is arguable that it is the police officer who forms the view is the only person who may ‘apprehend … and take the person to a declared mental health facility …’ and that means the police officer must personally transport the person to hospital.  An alternative view is that a detention by a police officer means a person may be, or is ‘authorised by this Act to be taken’ to a declared mental health facility and that would to trigger s 81 and would allow any of the persons listed to transport that person.

(I note that s 81 says ‘may’ not ‘must’ so I stand by my position that if a paramedic is of the view that in the circumstances they are not empowered by s 20, they cannot be compelled to transport a person who has been detained under s 22 and it would be a dereliction of their duty to the patient to do so.)

But members ‘of staff of the NSW Health Service’ (who are not medical practitioners) do not have that independent authority. I can’t see any objection in tasking them to transport a person detained under s 22 on the basis that the detention of the person in the NSW Health or community mental health vehicle is authorised by the person’s detention by police.

Upon arrival at a mental health facility, a person can be further detained ‘after being apprehended by a police officer’ (s 18(1)(c)).  If the person has been detained by police and then transported by NSW Health staff (other than ambulance officers) or in a community mental health vehicle then they are in the mental health facility ‘after being apprehended by a police officer’.

The test for continued detention after apprehension by an ambulance officer is different.  A person’s continued detention in a mental health facility is justified after the person is ‘brought to the facility by an ambulance officer’ (s 18(1)(b)). Section 18(1)(b) clearly requires the ambulance officer who acts under s 20 to bring the person to the mental health facility.  Section 18(1)(c) does not impose the same requirement on the apprehending police officer.  As noted in the MoU (p. 12), when using NSW Health or community health vehicles (as opposed to an ambulance):

… police complete a section 22 form, provide a comprehensive verbal handover which includes communication of all factors relevant to enable an assessment of the current and potential risk of the person’s behaviour escalating, and hands the person and the form to the transporting NSW Health staff.

Presumably the Health staff hand that form over when delivering the person to the mental health facility and the person is there ‘after being apprehended by a police officer’.

Question 3: If paramedics detain a person under s 20 are police required to assist when requested?

This is the ‘flip side’ of question 1 and here the answer is ‘yes’.  It is not a logical argument based on the fact that paramedics are health professionals and this is a health question, it is based on the legislation.  Section 21(1) says (emphasis added):

A police officer to whose notice … a request for assistance by an ambulance officer under this Division, is brought must, if practicable:

(a) apprehend and take or assist in taking the person the subject of the … request to a declared mental health facility, or

(b) cause or make arrangements for some other police officer to do so.

The police must, not just ‘may’, provide assistance to ambulance.  So where ambulance officers have exercised their judgement under s 20, police are not free to refuse on the basis that they would not, or could not, act under s 22.   This is consistent (but does not depend on) the conclusion (State of New South Wales v Talovic [2014] NSWCA 333, [136]) that:

…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…

Conclusion

I don’t see anything objectionable in this MoU if the paragraph at p. 10 that says:

For example, police may detain a person under section 22 of the MHA and paramedics may transport the person to hospital. Using this example, the person is able to be transported to hospital without the need for police attendance.

Is not understood to mean that paramedics are required to transport a person detained under s 22, and do not have to exercise their own judgement under s 20.  For example police may detain a person at the scene of an incident under s 22 and call for ambulance assistance.  If paramedics are not satisfied that they are authorised to act under s 20 then, subject to the results of escalating the matter as required by the MoU, I am of the view that paramedics cannot be compelled to transport the person and would be derelict in their duty to the patient if they did transport the patient when they did not believe the patient appeared to them to be mentally ill or mentally disturbed.

That situation does not work in reverse. If police are asked to assist paramedics who are seeking to detain a person under s 20, the police are required to provide that assistance (s 21).

Where police do detain a person under s 22 and ask NSW Health or community health (not NSW Ambulance) to transport the person, the detention under s 22 is sufficient and I think s 81 gives sufficient authority to those ‘staff of the NSW Health Service’ to transport the person. The police officer who made the decision under s 22 is not, in my view, required to personally travel with the person so detained.  I appreciate that an alternative position is arguable given the words of s 22 but I think on balance that personal attendance by police (comparing s 18(1)(b) with 18(1)(c)) is not required.