Today’s correspondent is
…writing to seek some clarification regarding the application of the Mental Health Act 2007 (NSW) by NSW Ambulance Paramedics, where a patient is in Police custody.
If for instance, paramedics have been called by police to undertake a Mental Health Assessment on an individual in police custody at the local Police Station, and post this assessment, paramedics deem the patient is mentally ill/ disturbed, is it necessary for Paramedics to utilise s 20?
Additionally, I might add the following information,
1) NSW Police are unsure whether this patient is mentally ill/ disturbed and are seeking clarification from paramedics as to whether this patient requires transport to the hospital; and
2) The patient does not want to go to the hospital.
In this case, does the fact that this patient is in police custody mean that it is unnecessary for paramedics to utilise s 20?
Can a paramedic schedule this patient, despite the fact that they are in police custody? Are there any legal restrictions preventing this?
I will infer that ‘police custody’ means the person has been arrested for an offence, not detained by police for the purposes of the Mental Health Act. Where police are acting under the Mental Health Act see NSW Police, paramedics and the mentally ill (May 15, 2018).
Section 20 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.
Although s 20 does not refer to consent and does not expressly say it applies where a competent patient refuses consent that can be inferred by the sections placement in the Act. The Section appears in:
- Chapter 3 ‘Involuntary Admission and Treatment in and Outside Facilities’;
- Part 2 ‘Involuntary Detention and Treatment in Mental Health Facilities’;
- Division 2 ‘Admission to and Initial Detention in Mental Health Facilities’.
- Part 2 ‘Involuntary Detention and Treatment in Mental Health Facilities’;
Where a person is delivered by an ambulance officer, then the person may (not must) be detained at the mental health facility pending their examination by a mental health professional (s 18).
A person may also be detained if they are brought to a mental health facility by police (s 22).
The effect of the above is that section 20 provides that ambulance officers may transport a patient to a declared mental health facility if they believe ‘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’ the Mental Health Act 2007 (NSW) and the declared mental health facility can detain the person on the basis of that opinion. It is inferred that this can be done even when the patient is competent and refuses to consent to that treatment and transport.
The scenario is as I understand it, that police have arrested a person and form the view that he or she may be mentally ill and ask paramedics to assess the patient. After the assessment the paramedics form the belief ‘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’ the Mental Health Act 2007 (NSW). The patient does not want to go to a declared mental health facility.
The police may rely on the paramedics assessment to come to the conclusion that ‘it would be beneficial to the person’s welfare to be dealt with in accordance with’ the Mental Health Act, rather than the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) and the Bail Act 2013 (NSW). In that case the police could take the person to a declared mental health facility (Mental Health Act 2007 (NSW) s 22). But transporting a person to a mental health facility takes up police resources in providing a health service and is not best for patients (see 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).
Given that the paramedics are there and given ‘…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’ (State of New South Wales v Talovic  NSWCA 333, ) it makes sense that the ambulance officers will transport the person.
However, a paramedic cannot treat a competent person unless that person consents to paramedic treatment. Patient consent is still required even when the person is in police custody (Neal v Ambulance Service of NSW  NSWCA 102; but see Crimes (Administration of Sentences) Act 1999 (NSW) s 73 regarding compulsory treatment of sentenced prisoners). The fact that the person is mentally ill does not mean they are not competent to give or refuse consent (PBU & NJE v Mental Health Tribunal  VSC 564 discussed in Victorian decision on refusing medical treatment – reviewing the principles (November 24, 2018)). It follows that if the paramedics are to take the person to a declared mental health facility where the patient is refusing to consent, they can only do so if they hold the belief required by s 20.
It then begs the question of what does my correspondent mean by ‘is it necessary for Paramedics to utilise s 20?’ If they hold the belief, 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’ the Mental Health Act 2007, then they are relying on s 20. The ambulance service has, as I understand it, some extra paperwork (that is not prescribed by the Act) that paramedics must complete in which case so be it. It is important to record clinical information including the information relied on to form the belief required by s 20.
As for the question ‘Can a paramedic schedule this patient, despite the fact that they are in police custody?’ – a paramedic cannot ‘schedule’ anyone. That is an old term and comes from the idea that some form was in the schedule of the Act. And indeed there is such a form – a medical practitioner acting under s 19 must complete ‘the form set out in Part 1 of Schedule 1’ so one might say that a doctor is ‘scheduling’ the patient. That is not the case in s 20. Section 20 provides that an ambulance officer who forms the relevant opinion may transport the person. And section 18 says the mental health facility may detain the person.
The correct question is ‘can a paramedic form the view that a person in police custody is mentally ill and should be transported to a mental health facility’ then the answer is ‘yes’. If the person won’t consent to treatment then the ambulance officers can only treat and transport on the basis of s 20.
We can put that in context of physical injuries:
- If police arrest someone and asked paramedics to take a person to hospital the patient’s consent is still required. If the police insist that the prisoner go to hospital the correct response would be ‘(s)he’s your prisoner and (s)he won’t come with us, you take him/her’. Even if the prisoner is transported to hospital, the police cannot insist that he receive treatment contrary to his informed and competent refusal (see Ambulance Service v Neal (January 29, 2009)).
- If police arrest someone and call the ambulance to take the person to hospital and the paramedics form the view that the patient’s condition does not require transport to hospital again the correct answer is ‘you want to take them to hospital, you do it’. People, including police, cannot insist on ambulance transport to hospital where in the paramedic’s opinion, such treatment is not clinically indicated (see Transport everyone or act as a professional? A question for paramedics (May 6, 2013)
The same has to be true in mental illness;
- If police arrest someone and asked paramedics to take a person to declared mental health facility then the patient’s consent is still required, unless the ambulance officers hold the opinion required by s 20.
- If police arrest someone and call the ambulance to take the person to a declared mental health facility and the patient refuses, and paramedics form the view that the patient’s condition does not meet the criteria under s 20 then there is no power to transport without consent. In that case the correct answer is ‘you want to take them to hospital, you take them relying on your power under s 22’ (see NSW Police, paramedics and the mentally ill (May 15, 2018)).
The question was:
… paramedics have been called by police to undertake a Mental Health Assessment on an individual in police custody at the local Police Station, and post this assessment, paramedics deem the patient is mentally ill/ disturbed, is it necessary for Paramedics to utilise s 20?
In my view the answer is ‘yes’.
For further discussion see:
- More on the treating the mentally ill by paramedics in NSW (April 17, 2017)
- Further commentary on the Mental Health Act 2007 (NSW) s 20 (April 17, 2017)
- Again revisiting the Mental Health Act 2007 (NSW) s 20 (April 18, 2017)
Mate, if you as a paramedic, need to ask this question in the first place …..
Then you are NOT the person best suited to make a ‘mental health assessment’.
How can you apply the provisions of the Act, when you don’t understand them ?
Police have over-ridden s20, by virtue of arrested in custody.
Work in your police liasison skills ….
Never attempt to claim you have authority over the coppers !!
Oh, and if you have some spare time inbetween, try applying some empathy to THE PERSON you all call ‘the patient’.
Gordon, I’m not sure if these comments are directed to the person who asked the question, or to me as the person who answered it. I don’t understand what you mean by ‘Police have over-ridden s20, by virtue of arrested in custody’. Nor do I understand by the comment ‘Never attempt to claim you have authority over the coppers !!’ Police do not hold unfettered authority and they can’t insist that people accept medical care. I’m not sure what ’empathy’ would look like in this situation. In short I’m really not sure what point you’re trying to make here.
….. and, once again, I remind all readers ….
It is NOT a crime to be ‘mentally ill’ !!
I am disappointed to constantly read of ambos having no empathy and dehumanising people living with mental illness.
Really ? Don’t they cover this at uni / Rozelle ?
Always directed at the question asker, unless otherwise stated.
Isn’t s.20 a ‘community’ clause ?
Isn’t used in hospital ….. or when person in police custody ….. because those places are not in the general community.
Gordon, there’s nothing in s 20 to say it’s a “community clause”. Earlier versions of s 22 (relating to police powers) did limit police power to act when a person was found in a ‘public place’ but the limitation was removed with the Mental Health Legislation Amendment Act 1997 (NSW).
The answer in all of this is about the rule of law and that government agencies, like police and ambulance, cannot act without authority.
Police can arrest a person who they think has committed an offence because the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) says they can. Under that Act a prisoner has a right to receive medical attention (s 129) but that does not give police or those providing the medical attention the right to force treatment upon the person.
Police, on their own initiative, can detain a person and take them to a mental health facility but only if the requirements in the Mental Health Act 2007 (NSW) s 22 are met.
Equally ambulance officers can, on their own initiative, detain a person and take them to a mental health facility but only if the requirements in the Mental Health Act 2007 (NSW) s 20 are met.
If police determine form the view that a person ‘appears to be mentally ill or mentally disturbed’ and ‘it would be beneficial to the person’s welfare to be dealt with in accordance with’ the Mental Health Act then the police can detain that person (s 22). If they call the ambulance service for assistance and paramedics do not share the view that the person ‘appears to be mentally ill or mentally disturbed’ and ‘it would be beneficial to the person’s welfare to be dealt with in accordance with’ the Mental Health Act then the ambulance officers have no authority to detain and transport the person (s 20).
If the police have detained the person and want the paramedics to transport them, there is no obligation upon the paramedics to do so.
This is consistent with the higher level of satisfaction that paramedics must have, that is the paramedics must be able to point to ‘reasonable grounds’ for their belief. Paramedics are expected to make a more informed decision as they have health training that police do not (State of New South Wales v Talovic  NSWCA 333). It follows that the mere fact that police have formed a view that a person ‘appears to be mentally ill or mentally disturbed’ and ‘it would be beneficial to the person’s welfare to be dealt with in accordance with’ the Mental Health Act does not remove the need for paramedics to form, and act on, their own view.
The contrary is not true. If paramedics form the view that a person should be detained under s 20 they can ask for police assistance (s 20(2)) and police must provide that assistance (s 21). Given the better trained paramedics have formed the view that detention under the Mental Health Act is called for, the police do not have to form their own view on the matter.
What follows from all of that is no, s 20 is not limited to where a person is found ‘in public’. There is nothing in the section that would suggest that it is so limited. It is still relevant where a person has been taken into custody by police whether that custody is based on s 22 or where the police have arrested someone for an offence.
It may not be relevant if the person is in a hospital because one would expect that it is a medical practitioner not a paramedic who determines that the person should be detained under the Mental Health Act. Where a doctor forms that view (s 19) he or she can complete ‘the form set out in Part 1 of Schedule 1’. He or she may endorse the certificate to the effect that police assistance is required to detain and transport the person to the mental health facility. Where the form is so endorsed, police are required to act on it (s 21).
Ambulance officers, and police where the appropriate endorsement has been made, do not have to satisfy themselves that the criteria in ss 20 and 22 respectively have been met where the patient has been ‘scheduled’ under s 19. In that case the authority to transport the patient is found in s 81; ss 20 and 22 are not relevant. That would explain why s 20 isn’t relevant in a hospital.
In essence we can see a ranking of decision makers –
1. Police are at the bottom, they need to be satisfied that the person appears to be mentally ill or mentally disturbed, has committed an offence or is a danger to themselves or others, and would benefit by treatment under the Mental Health Act.
2. Ambulance officers need to be satisfied on reasonable grounds that the person appears to be mentally ill or mentally disturbed and would benefit by treatment under the Mental Health Act. Ambulance officers need to be able to point to ‘reasonable grounds’ for their opinion but are not limited to cases where the person has committed an offence or is posing an immediate risk to themselves or others. Because ambulance officers have more medical training, when they become involved, they have to make their own decision. They are not there to simply give effect to the opinion of the less qualified police officer. Further, if police have acted under s 22 and paramedics say they do not think the person is mentally disordered or mentally ill or the other criteria for detention under s 20 apply, police would no longer have grounds to act under s 20.
3. Medical practitioners must be of the opinion that a person opinion that the person is a mentally ill person or a mentally disordered person, and that ‘no other appropriate means for dealing with the person is reasonably available, and that involuntary admission and detention are necessary’ (s 19). Where a doctor makes that decision he or she does not personally have to transport the person, he or she can authorise ambulance and police officers to do that. Again as they are higher up the decision making chain one would expect that if a doctor examined a person and was not satisfied that an order should be made under s 19, a paramedic would not act under s 20 and police would not act under s 22. Equally where a doctor does make an order under s 19, police and paramedics do not have to satisfy themselves that ss 20 or 22 apply, they can detain and transport the person on the basis of the doctor’s order (ss 21 and 81).
So section 20 is not a ‘community clause’. It applies whether or not the person is in police custody, a public place or anywhere. By arresting a person police do not ‘override’ s 20. In these circumstances paramedics do have more authority or at least an expectation of more appropriate training, than police. If police want to act under s 22 and paramedics do not think that the criteria for s 20 have been met, they should say so and, ultimately, refuse to transport a person against their will (noting that the MOU between NSW Health and NSW Police referred to in the post does have procedures for when there is disagreement and they should be followed).
Well, thank you for a very comprehensive reply Michael ( obviously, you spent some & effort in reseaching this question ).
Despite all the ‘sections’ of The Act in force, what actually happens can be different to what is written.
The set of words I still question, is “appears mentally ill …. “.
I can tell you …. at this time, I ‘appear mentally ill’. However, I am not.
What does a ‘mentally ill’ ( or ‘disturbed’ ) person look like ?
I once saw a man standing in George Street ( Sydney ) near Central Railway. He was naked from the waist down, wearing only a dirty and frayed suit coat. He was THE most dishevelled person I have ever seen !
He was ‘marching on the spot’ & mumbling to himself. I saw two police officers ‘walking the beat’ nearby, and went out of my way to advise the police of this man’s presence.
The police asked, what had he done. I explained, and pointed to him ( as he was now in line of sight ). The police asked, ‘what has he done ?’ I said, well, nothing, but just look at him. He needs to go off to a hostel or somewhere …
The police officers final word was, ‘ If he hasn’t done anything wrong, it’s his right to stand there, if he wishes’.
Further, I would add, that on multiple occasions, whilst I was working in my last acute unit, the police & or ambos would bring a person in, under s.20 ( usually ambos have 20’d their patient, and the police just escorted ). There would be great effort & procedure applied …. a ‘security team’ assembled. Psychiatrist called in from home ( guess how much THAT costs ? ) Secure Unit bed prept. etc.
End result of ‘assessment’ ….. most common response = ‘Situational Crisis’. Person is offered a ‘voluntary’ bed in a low grade ward for the night – if they consent – or the hospital pays for taxi home.
Sure, there are those significant cases of genuine risk, where a person does need to be secured for involuntary treatment etc. But the police don’t need an ambulance for transport. They’ll bring in a ‘prisoner’ ( not a ‘patient’ ) in the back of the van – handcuffed ! In a lot of those cases, I’ve seen the ‘prisoner’ cleared of ‘mental health’ & the police then take them away to be processed them through the criminal justice system.
Having worked as an Ambo and then as a Medico… I have a simplified approach on whether or not to proceed to utilise the ‘Section 19 or 20’ of the Act.
The questions I ask myself about the patient before me are:
1) Are they mentally disordered or mentally ill (that is, based on a mental state history and exam, I would formulate the opinion they have a mental disorder)?
2) Are they behaving so irrationally and erratically, and lack compes mentis and decision making capacity (that is, for instance, the inebriated or drug affected individual with a head injury)?
3) Has the patient has refused to voluntarily go to hospital or participate in treatment (given the above two reasons)? And, have I considered all other reasonable means of treatment, and that an involuntary admission to the hospital is in the best interests for this patient (and the public)?
If I answered ‘Yes’ to 1+3 or 2+3, I’d complete the ‘Schedule 1 / Section 19’ paperwork (if you’re a Medico) or be empowered by ‘Section 20 or 21’ (if you’re an Ambo or Cop), so that the patient may be transported and/or admitted to the hospital under the Act f or further assessment and observation by our specialist colleagues.
I think a lot comes down to the clinician involved. I have known clinicians who would be hesitant with utilising the Act, and I think a lot of that stems from either a lack of understanding of the Act and whether or not they are confident in making the call that the patient is truly mentally disordered or lacking compes mentis or decision making capacity. Understandably we don’t want to inappropriately use the Act to take away the rights of an individual and forceably detain them when otherwise not needed, but if it is clear that they are a risk to themselves or others because of a mental disorder or erratic behaviours that would suggest a mental illness or lacking adequate capacity, I don’t think anyone could fault the clinician for reasonably using the Act to safely have the patient transported to hospital if you are acting in their best interests and good faith.
Also, with regard to what Gordon Blair said in his last comment about how most of these cases end-up wasting resources (that is, having to call in the Psychiatrist, take up a bed, and in the end turn out to be just a ‘situational crisis’), I don’t think inconvenience can justify neglecting our duty of care to our patients, regardless of what their forensic-legal status might be; it is not our position as healthcare professionals to judge and pre-determine how we should medically treat patients based on their social-economical-ethnic-sexual-political backgrounds. I have had a lot of patients who have had a forensic history; and yes, some of them can be frustrating to deal with, whereas a lot of them are genuinely rehabilitated; nevertheless, they are people and they still get sick, and it is our duty to treat them impartially and properly. Ambulance Services and Emergency Departments have been trained and have come to expect to assess prisoners; it’s part of the job.
Agree with some of what you say there Dr. Teddy Bear ( you probably shouldn’t use your full name here, but then I have …. ).
Anyway, I like it when others allude to people ….. and not ‘patients’.
When I spent a bit of time with the ‘Partners in Recovery’ program ( as a team leader ), we attended multiple short courses. One of which was ‘Trauma-Informed Care’ ….
The most valuable question you can ask a PERSON is ……
Not ‘what’s wrong with you?’ , rather …..
‘What has happened to you ?’
To understand and appreciate a person’s history ( and respond with empathy ), is far better for the person than running through the list of questions for a MSE.
People will react to you wirh a greater degree of respect if you demonstrate you are truley interested in what has happened to them …..
Once upon a time, we used to sit in a circle adter a ‘critical incident’ …. and talk about how we felt ( CISM ) ….. Even that has fallen away ……