Today’s question relates to the provisions of the Mental Health Act 2014 (Vic). My correspondent says:
Section 351 of the mental health act outlines police and protective service officers legal powers to apprehend a mental health patient. The language seems very deliberate in naming specifically police and protective service officers instead of just saying authorised officers. Which makes me believe those powers pertain to only police/PSO’s and not other authorised officers such as paramedics.
However, in section 353 it outlines the “power to enter premises, apprehend and take a person to or from a designated mental health service.” This section discusses power for authorised persons to apprehend. Which includes paramedics. The settings of which this section can be applied appear to be the same as section 351.
This has caused some confusion as these two sections appear to contradict one another. I’ve asked some colleagues and a few people seem confused by this.
Could you please clarify?
Let’s being by looking at the sections. Section 351 says:
(1) A police officer, or a protective services officer on duty at a designated place, may apprehend a person if the police officer or the protective services officer is satisfied that—
(a) the person appears to have mental illness; and
(b) because of the person’s apparent mental illness, the person needs to be apprehended to prevent serious and imminent harm to the person or to another person.
(2) A police officer or a protective services officer is not required for the purposes of subsection (1) to exercise any clinical judgement as to whether the person has mental illness.
(3) A police officer or a protective services officer exercising the powers conferred by this section may be accompanied by a registered medical practitioner or a mental health practitioner.
(4) A person apprehended under this section is subject to the custody of the police officer or the protective services officer, as the case may be, until released from that custody in accordance with this section.
(4A) As soon as practicable after apprehending a person under this section, a protective services officer must—
(a) hand the person into the custody of a police officer; or
(b) for the purposes of enabling the person to be examined in accordance with section 30, arrange for the person to be taken to—
(i) a registered medical practitioner or mental health practitioner; or
(ii) a public hospital, denominational hospital, privately-operated hospital or public health service within the meaning of the Health Services Act 1988 .
(4B) A protective services officer may only exercise the power to apprehend under this section in relation to a person who is at, or in the vicinity of, a designated place.
(5) As soon as practicable after apprehending a person under this section or being handed a person apprehended by a protective services officer under subsection (4A)(a), a police officer must arrange for the person to be taken to—
(a) a registered medical practitioner or mental health practitioner; or
(b) a public hospital, denominational hospital, privately-operated hospital or public health service within the meaning of the Health Services Act 1988 to enable a registered medical practitioner or mental health practitioner—
to examine the person in accordance with section 30 to determine whether to make an Assessment Order.
(5A) A person apprehended under this section by a protective services officer is released from the custody of the protective services officer when—
(a) the person enters into the custody of a police officer; or
(b) if subsection (4A)(b)(i) applies, the person is made subject to an Assessment Order; or
(c) if subsection (4A)(b)(ii) applies, the person enters into the care of the public hospital, denominational hospital, privately-operated hospital or public health service within the meaning of the Health Services Act 1988 .
(6) A person apprehended under this section is released from the custody of the police officer when—
(a) if subsection (5)(a) applies, the person is made subject to an Assessment Order; or
(b) if subsection (5)(b) applies, the person enters into the care of the public hospital, denominational hospital, privately-operated hospital or public health service within the meaning of the Health Services Act 1988 .
(7) For the purposes of apprehending a person under this section, a police officer or a protective services officer has all the powers necessary to do so.
(8) Nothing in this section limits—
(a) any other power of a registered medical practitioner or mental health practitioner in relation to a person apprehended under this section; or
(b) any other power of a police officer or a protective services officer in relation to a person apprehended under this section.
Section 353 says:
Power to enter premises, apprehend and take person to or from a designated mental health service
(1) This section applies if a provision of this Act provides for a person to be taken to or from a designated mental health service or any other place.
(2) For the purposes of this section, an authorised person may—
(a) enter any premises at which the authorised person has reasonable grounds for being satisfied that the person may be found; and
(b) apprehend the person for the purpose of the person being taken to or from a designated mental health service.
(3) Before an authorised person enters any premises under this section, the authorised person must—
(a) announce to any person at or in the premises that the authorised person is authorised to enter the premises; and
(b) state the basis of the authority to enter; and
(c) give any person at or in the premises an opportunity to permit the authorised person to enter the premises.
(4) An authorised person may use reasonable force to gain entry to the premises if the authorised person is not permitted entry under subsection (3)(c).
(5) On gaining entry into the premises, an authorised person must, to the extent that it is reasonable in the circumstances—
(a) identify himself or herself to the person who is to be apprehended; and
(b) explain to the person why he or she is to be apprehended; and
(c) give the person the details of the place to which he or she will be taken.
An ‘authorised officer’ is defined (s 3) to mean:
(a) a police officer; or
(b) an ambulance paramedic; or
(c) a registered medical practitioner employed or engaged by a designated mental health service; or
(d) a mental health practitioner; or
(e) a member of a class of prescribed persons;
Section 351 is very much limited to police and protective service officers and it gives them the right to detain (in common terms, arrest) a person who they suspect is mentally ill. The reference in subsection (2) to ‘clinical judgment’ is to confirm that police don’t have to perform any sort of psychiatric test or apply the sort of judgement of a health practitioner – they can act on their own ‘gut feel’ that the cause of the person’s behaviour is a mental illness. (For a discussion on a similar distinction in New South Wales see State of New South Wales v Talovic  NSWCA 333 discussed in my earlier post, NSW Police, paramedics and the mentally ill (May 15, 2018)).
Having detained someone, the police officer or the protective service officer must arrange for the person to be taken to a facility for an appropriate medical examination (ss 351(4A) and (5)). Section 351 is therefore an independent right to detain a person vested in police and protective service officers but not paramedics.
Section 353 is much more general, but it applies only if some other ‘provision of this Act provides for a person to be taken to or from a designated mental health service or any other place’. It is not a general power to detain a person. As we have seen, if a police officer or protective service officer acts under s 351 he or she ‘must arrange for the person to be taken to’ a medical practitioner or a hospital, that is they must be taken ‘to … a designated mental health service or any other place’. A police officer may do that by putting the person in a police car but the use of police cars is not ideal for the mentally ill, and a police officer or protective service officer may not have a car, or may have other duties to attend to. So they may call upon Ambulance Victoria to assist. And that is where s 353 comes into play. The paramedic, as an ‘authorised person’ can enter upon the premises where the person is, can take them into their custody, and transport them to where they need to go (having explained to them who they are and where they are going to take the person).
Section 353 does not however apply only when police or protective service officers act under s 351. (And in those circumstances it is unlikely that the officer will need to announce his or her entry into premises and use force). Rather s 353 applies whenever there is an authority to detain a person such as when an assessment order (s 28), a temporary treatment order (s 45), a treatment order (s 52) has been made or the person is absent from a mental health facility without leave (s 352).
One can imagine for example that there is a treatment order for a person, but they have absconded and are at home. An authorised officer under s 353 can go to the home, demand entry, and take the person into custody for the purposes of returning them to the facility. That is quite different from s 351.
In effect s 351 is going to apply ‘on the street’ (including in people’s homes if that is where police are responding) or at or near a designated place. When s 351 applies it is the police who are making the non-clinical decision that the person is mentally ill and needs to be assessed for that purposes. The other sections that empower a person to be taken to or from a mental health facility depend on a doctor or mental health professional making that clinical judgment.
In either case once the doctor, mental health professional, police officer or protective services officer has determined that the person needs to be transported, then the paramedics can exercise their powers under s 353 to give effect to that judgement.
What it means is that, in Victoria, paramedics do not have the power to make a call to treat a mentally ill person contrary to their wishes. Where paramedics are treating someone and form the view that they are mentally ill then, as with any medical care, they need the patient’s consent in order to treat and transport them. If the patient is unable to consent then the doctrine of necessity applies and treatment that is reasonable and in the patient’s best interest can be given without consent (see The doctrine of necessity – Explained (January 31, 2017)).
Where the patient is capable of giving consent but does not do so, even if the reason they don’t do so is because of their mental illness then that has to be respected – see Victorian decision on refusing medical treatment – reviewing the principles (November 24, 2018). As Justice Bell said in PBU & NJE v Mental Health Tribunal  VSC 564, discussed in that post:
The capacity test must be applied in anon-discriminatory manner so as to ensure that people with mental illness are not deprived of their equal right to exercise legal capacity upon the basis of contestable value-judgments relating to their illness, decisions or behaviour, rather than upon the basis of the neutral application of the statutory criteria(s 68(2)(c)). In short, the test is not to be applied so as to produce social conformity at the expense of personal autonomy.
People can be mentally ill, they can make judgements that are not in their best interests and they may make those judgements because of their mentall illness but that does not mean that they are not competent to understand the nature and effects of the advice they are given and their decision.
Where a person is competent but mentally ill, paramedics do not have the right to detain the person and take them to a facility, they need the police to attend and have the police exercise their discretion under s 351 and then transport the patient to the relevant facility. That is not the situation in other states – see for example Mental Health Act 2015 (ACT) s 80 see also Bradley, E., Townsend, R. and Eburn, M. ‘Paramedics and ACT Mental Health Legislation’ (2015) 12(4) Australasian Journal of Paramedicine, Article 1, 1-6.
Section 353 says that paramedics, and other authorised persons, can enter premises, detain a person and take them to a mental health facility but only when someone else has authorised that to happen. One group of people that can make that determination is police and protective service officers acting under s 351.
The sections do not contradict each other. A police officer can compel a person who, although mentally ill remains competent to refuse treatment, to undergo a mental health assessment. A paramedic cannot.