Today’s correspondent is paramedic on the NSW/Victorian border who is
… regularly responded to cases across the border. My question largely relates to the treatment of mental health patients interstate, and I have struggled to get a clear answer on this from my employer. My understanding is that both NSW and Victoria have different Mental Health Acts and therefore different powers for police and paramedics with regards to sectioning involuntary patients. My question is: if I’m attending to a patient interstate (so outside the state in which I’m employed), what are my legal rights/responsibilities as a paramedic? Do I act within legislation for the state in which I am based, or the state in which the patient is located, and if it’s the latter, does my employer therefore have a responsibility to ensure paramedics working in border towns are cognisant of the Mental Health Acts for both states?
The relevant provisions are those parts of the mental health Act that allow a person to be detained and treated without consent or even against their will.
The Mental Health Act 2007 (NSW) s 20(1) 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 Mental Health Act 2014 (Vic) s 350 allows an authorised person, which includes an ‘ambulance paramedic’, when transporting a person ‘to or from a designated mental health service or any other place’ to
… 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…
Further, an Ambulance paramedic may administer sedation to the person at the direction of a medical practitioner. Further powers of authorised persons are discussed in my post New Mental Health Act 2014 (Vic) brings new powers for Victorian paramedics (July 28, 2014).
There are provisions for recognition of interstate orders and interstate transfer or patients – see Transporting the mentally ill from NSW to the ACT (July 18, 2018) and see also Mental Health Act 2014 (Vic) Part 13 ‘Interstate Application Of Mental Health Provisions’.
There is an agreement in place between Victoria and NSW. The current agreement refers to the 1986 Victorian Act (see NSW-Victoria agreement for the transfer of civil patients between NSW and Victoria) but, according to Health.vic ‘the Mental Health Act 2014 (Vic) deems the civil agreement to be made under the 2014 Act’ (see https://www2.health.vic.gov.au/mental-health/practice-and-service-quality/service-quality/working-across-service-boundaries/cross-border-arrangements-nsw).
What follows and without reviewing the agreement chapter and verse, is that a NSW Ambulance officer in Victoria can exercise the powers granted by the Mental Health Act 2007 (NSW) and vice versa for a Victorian authorised officer in New South Wales. So, for example, paragraph [5.7] says:
The following persons may be taken to a Victorian Facility without documentation, pursuant to section 93F of the Victorian Act:
(a) a person who may be taken to a NSW Facility by a NSW Police Officer under section 21 or 22 of the NSW Act;
(b) a person who may be taken to a NSW Facility by a NSW Ambulance officer under section 20 of the NSW Act; and
(c) a person who may be taken to a NSW Facility following the transfer of the patient from a NSW health facility in accordance with section 25 of the NSW Act.
In effect a New South Wales paramedic in Victoria can detain a person as they would in NSW and this is deemed to be an action under s 93F of the 1986 Victorian Act and any equivalent provision in the 2014 Act (though to be honest, I can’t see an equivalent to s 93F).
The strict answer is that in Victoria a NSW paramedic has to comply with Victorian law, but Victorian law allows them to exercise the powers granted to them under the NSW Act so it appears that for all practical purposes they can apply NSW law in Victoria, and the Victorian paramedics can apply Victorian law when in NSW.