We are aware of the concept of ‘ramping’ ambulances where ambulances are held at hospital providing ongoing care to patients whilst the hospital staff try to cope with the workload and find space to admit the patient into the hospital – see

Today’s question raises similar issues but this time with respect to ‘ramping’ of police whilst delivering a mentally disordered person to a relevant health facility.

The relevant law is the Public Health Act 2005 (Qld) Chapter 4A which provides (at s 157B) for the detention and transport of persons who are

(a) … at immediate risk of serious harm; and

(b) the risk appears to be the result of a major disturbance in the person’s mental capacity, whether caused by illness, disability, injury, intoxication or another reason; and

(c) the person appears to require urgent examination, or treatment and care, for the disturbance.

Where a person is transported to ‘a treatment or care place that is a public sector health service facility’ the ambulance or police officer must complete an ‘emergency examination authority’ and hand that to a relevant employ of the facility (s 157D).  On the basis of that authority, the person ‘may be detained in a treatment or care place that is a public sector health service facility for a period (the “examination period”) of not more than 6 hours’ (s 157E).  Queensland Health’s Public Health Act 2005 Fact Sheet: Emergency Examination Authorities answers the question ‘Why are the provisions located in the Public Health Act 2005?’  It says:

A disturbance in a person’s mental capacity may be caused by illness, disability, injury, intoxication or another reason. Including the provisions in the Public Health Act 2005 aims to ensure that the Mental Health Act 2016 captures only those persons that are within its intended scope and that appropriate treatment and care is provided after a person is examined.

In essences, the Public Health Act applies before a person is examined by a mental health professional, the Mental Health Act 2016 (Qld) applies after that examination and where a person has been assessed as mentally ill.

Emergency Examination Authorities issued by Queensland Ambulance were the subject of an earlier post – see Involuntary treatment and security clearances (November 9, 2017).

We can now turn today’s question regarding:

… liability where resources not provided for patient guarding at hospital. This where QAS do NOT assist and QPS take carriage of the job for whatever reason (risk, resources whatever). Police attend a job and believe a mental disturbance in a patient and if not taken for mental health assessment there is an imminent risk of physical harm.

They can then be detained for what seems like an indeterminate amount of time and taken to a mental health professional (hospital).  EEA documents are furnished. It’s often explained to police by hospital staff that when the EEA is signed the 4-hour detention assessment period begins.

I imagine at this point patient is the hospitals problem to guard. However, for what seems like procedural reasons this doesn’t occur. If the patient has health issues, for example they are under the influence of amphetamines or have cuts they must be triaged and seen at Emergency department before being handed over to Mental Health ward. If there is a ‘ramping’ situation there may be a long line of patients.

Security (and staff obviously possibly due to risk) refuse to take ownership of these patients until they are triaged despite the EEA having been signed. This results in usually two police guarding a patient for sometimes 2 to 3 hours in a hall at the hospital. This is not desirable as police frankly have better things to do. Hospitals have security staff and a memorandum of understanding exists between QPS and QAS at least indicating QAS get a quantity of funding for mental health response.

QPS immediate, on the road management indicate that there is nothing that can be done as there is a liability if the patient injures staff. I’m of the feeling that because the document has been signed the 4-hour EEA period has started for being seen by a mental health professional. I feel that the police custody has been handed over to hospital staff even if they aren’t taking the patient on board because they feel they don’t have enough security staff (usually only 2-4 security staff in a large hospital where this issue is occurring). Hospital staff say ‘this patient hasn’t been triaged yet so hasn’t been accepted by staff’ that seems inconsistent with police and staff signing the EEA.

Can you tell me where police ownership ends here? Is it where the EEA is signed or is do police really have to hang around for 3 hours until the patient is triaged and accepted at ED?

Let me first quibble with some language. No-one ‘owns’ the patient and no-one ‘owns’ the problem.  Everyone has obligations and the patient remains a citizen with rights including the right to be treated with dignity and to be involved in his or her treatment to the greatest extent possible given their current state of competence.

Second I note that s 157E provides for detention for not more than 6 hours, not 4 hours.

Memoranda of Understanding

There is a memorandum of understanding between Queensland Police and Queensland Health.  The Memorandum of Understanding Between The State of Queensland acting through Queensland Health and The State of Queensland acting through the Queensland Police Service: Mental Health Collaboration.  Is dated 15 June 2017. It says nothing on the subject of the role of police at hospital rather it deals with sharing information between police and health in order to better care for the mentally ill.

The Queensland Police Operational Procedures Manual (online edition), in chapter 6 refers to an MOU between police and ambulance.  It says (at [6.6.1]):

The Service has entered into a Memorandum of Understanding (MOU) with the Queensland Ambulance Service (QAS) that broadly identifies each agency’s responsibilities with respect to working collaboratively towards the prevention and safe resolution of mental health incidents.

The MOU requires the Service and the QAS to work in full cooperation to promote a coordinated system of response to ensure effective and efficient delivery of services to meet the needs of people with a mental disorder. The MOU acknowledges and agrees that when dealing with persons with an actual or suspected mental disorder and where there is a risk to safety that:

(i) police have the responsibility to protect the safety of all parties; and

(ii) ambulance personnel have the responsibility of addressing the physical needs of the person, including transportation to a medical facility.

POLICY

Unless exceptional circumstances exist, officers responding to a mental health incident are to:

(i) obtain the assistance of the QAS to:

(a) ensure the best possible medical response to the situation; and

(b) provide transportation for a person who is deemed in need of assessment at an authorised mental health service (AMHS);

(ii) provide all possible assistance to the QAS personnel in such situations (this may include assisting with transportation where QAS personnel attend the scene and request such assistance); and

(iii) provide sufficient information to QAS personnel to enable them to prevent or lessen a threat to the safety and health of any person involved in the mental health incident (e.g. providing the name, address, date of birth or any known mental health history of the person; see also s. 5.6.14: ‘Requests for information from other government departments, agencies or instrumentalities’ of the Management Support Manual).

Likewise, the role of the QAS is to also provide sufficient information to Service members to enable them to prevent or lessen a threat to the safety and health of any person involved in the mental health incident.

Officers in charge of regions should ensure local arrangements are developed to support the MOU entered into between the Service and the QAS.

My correspondent’s questions however, assumes that QAS are not involved so this MOU will have no application.  The Manual does talk about Emergency Examination Authorities at [6.6.2].  It says (relevantly):

On arrival at a public sector health service facility with a person detained for an EEA, the officer is to immediately:

(i) complete an ‘Emergency Examination Authority’ form;

(ii) give it to a health service employee. The person may be detained in the public sector health service facility while the order is being made (see s. 157D(3): ‘Giving emergency examination authority’ of the PHA); and

(iii) remain with the person for a reasonable time if requested by a health service employee.

The health service assumes responsibility for the person’s detention once the authority is provided to staff by an officer. An officer may depart from the facility as soon as this occurs unless there are circumstances where there is concern about the person’s management (for example, a person who is considered likely to abscond).

Officers should only be requested to remain where the individual circumstances of a case dictate that is necessary and reasonable. It should not occur routinely. When officers are requested to remain, they should ensure that health service staff are promptly making alternative arrangements (for example, attendance of hospital security or moving the person to a more secure setting within the facility).

Discussion

Queensland Police, Queensland Ambulance and Queensland Health are all parts of the Queensland Government and represent resources that are allocated by government to deal with issues that the government choses or has to deal with.  If the government wants or requires police to take part in the care and control of people who are a risk to themselves or to others then that is a choice the government makes.  What follows from that is the care of the mentally disordered person is a government concern and part of how they deal with that is through cooperation between the agencies.  It is not the case that police can say ‘no longer my problem’ – they are part of the solution along with the hospital and have to have regard to other demands on the hospital’s resources.

Section 157E(1) says, in full:

A person subject to an emergency examination authority may be detained in a treatment or care place that is a public sector health service facility for a period (the “examination period”) of not more than 6 hours starting when the authority is given to the health service employee under section 157D (4) .

That section says they may be detained, not that they are detained from the moment that the document is handed to staff of the health facility so one cannot infer that the patient ceases to be a police concern as soon as they hand the EEA document to the hospital staff.  It may simply be that the hospital cannot cope at that time and handing over an EEA document to a busy emergency department is not going to create new resources to deal with the patient.  That is reflected in the Police Operations Manual that says police are to ‘remain with the person for a reasonable time if requested by a health service employee’.  To see that another way, if it is the ‘hospitals problem to guard’ one way they can do that is by asking the police to assist (see also s 157N and reference to the use of force by a person ‘lawfully helping’ the ‘person in charge of the public sector health service facility’).

The critical issue is what is a ‘reasonable time’. That use of the word ‘reasonable’ covers a myriad if situations.  If the perception is that the patient is compliant and cooperative and no longer a risk perhaps police are not required.  If he or she is violent and needs active restraint then police will need to wait but, hopefully, that will also bring the person higher up on the triage priority.

As for liability or duty, the answer has to be the same as for ambulance ramping. Where the police have attended and given the EEA then the patient is at the hospital for treatment and the hospital has a duty of care toward that patient (Darnley v Croydon Health Services NHS Trust [2018] UKSC 50; Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428).  That duty is to act ‘reasonably’ but not necessarily immediately and not in priority to other patients.  In considering what is reasonable the hospital has to consider what staff it has that can be used to secure the patient (if that is required) and if they don’t have staff the availability of other resources – eg police.   What that means is that handing over an EEA that is then counter-signed by hospital staff means that the ‘health service assumes [some] responsibility’ for the patient, but not that all police responsibility ends at that time.

Police also have a duty to the person in their care and custody.  Gaoler and prisoner is a well-established category where there is a duty of care and that would also be true for anyone who has taken someone into their care and control and in particular where they are using coercive powers (an EEA does not require the patient’s consent) and where a person may be detained against their will.  Further, even if the police do not have legal responsibility for the patient, they do have duties to protect the public if there is a risk to community safety. This is not like Stuart v Kirkland-Veenstra where the criteria for detention under the Victorian Mental Health Act had not been established.  In the scenario under discussion the criteria for detention has been met and police have detained the person so that has to give rise to a duty of care toward that person and arguably towards others if the person is a risk.   Police cannot simply leave the patient in the hope that the hospital will magically find staff to assist.  What is reasonably will depend on the capacity of the hospital, a (hopefully shared) risk assessment and other demands on police resources.

The issue is not (or should not) be one of ‘liability’ but of risk.  The concern should not be ‘there is a liability if the patient injures staff’ but that there is a bad outcome for everyone if the patient injures staff.  That’s bad for the staff, it’s bad for the patient. If you can prevent a bad outcome you do as the role of assisting the mentally ill, and assisting the hospital staff, is to try and prevent bad outcomes.  If there was a guarantee of no liability would police be indifferent to harms caused to the mentally ill or staff?  I hope not – so liability is not or should not be the issue.

At the risk of editorialising, if police are there to protect the community and in particular the vulnerable it’s hard to know what ‘better things’ the police have to do.  It’s better to stop a person from injuring themselves or others rather than trying to clean up after the event.  It may be the case that police have things they’d rather do, that better fit their image of law enforcers or are more interesting than spending most of a shift sitting in a hospital, but that doesn’t make them ‘better’ things to do.

Conclusion

My correspondent asked

Can you tell me where police ownership ends here? Is it where the EEA is signed or is do police really have to hang around for 3 hours until the patient is triaged and accepted at ED?

The answer (putting aside the objection to the use of the word ‘ownership’) is as set out in the operations manual. Police responsibility ends when it is ‘reasonable’ and that will depend on all the circumstances.  It would not be reasonable to leave a dangerous person unattended in an ED waiting room on the basis ‘we’ve brought him here, he’s your problem’.  It would not be reasonable for a hospital to say, ‘we don’t need to admit this person or we can leave him or her to last as the police are here filling our staff shortage’.  Like anything it’s a risk assessment.  The critical thing in the MOU between Health and Police is information sharing.  Let the hospital staff know if police are required elsewhere, discuss what behaviour has led to the person’s detention, give the hospital time to triage the patient given other demands etc.

There is no simple answer other than to say a statement to the effect that police responsibility ends as soon as they hand over the EEA has to be wrong.