Today’s question is
… another question relating to police powers under the Mental Health Act 2014 (WA).
The Mental Health Act 2014 defines a mental illness as follows:
3.1 A person has a mental illness if the person has a condition that:
3.1.1 is characterised by a disturbance of thought, mood, volition, perception, orientation or memory; and
3.1.2 significantly impairs (temporarily or permanently) the person’s judgment or behavior
As paramedics we occasionally find ourselves in situations where a patient refuses transport to hospital, but we feel they probably lack capacity to do so. In such situations (and lacking any powers under the Mental Health Act) we will request police attendance, with a view to compelling the patient to hospital.
My question is, would a traumatic head injury, which results in a ‘temporary’ significant ‘disturbance of thought’ fall within the definition of Mental Illness, and therefore enable police to compel such a person to hospital, under police powers under the Act.
My feeling is that it would, in much the same way as heavily intoxicated patient could also lack capacity under the Act, however some colleagues and some police officers seem to think otherwise.
Just wondering what your thoughts are.
The Mental Health Act 2014 (WA) was enacted (s 10) to:
… to ensure people who have a mental illness are provided the best possible treatment and care —
(i) with the least possible restriction of their freedom; and
(ii) with the least possible interference with their rights; and
(iii) with respect for their dignity…
Section 11 says “A person or body performing a function under this Act [eg police] must have regard to the principles set out in the Charter of Mental Health Care Principles” (see https://ww2.health.wa.gov.au/About-us/Child-and-Adolescent-Health-Service/Child-and-Adolescent-Mental-Health-Service/About-us/Mental-Health-Act).
Section 6 of the Act says:
A person has a mental illness if the person has a condition that —
(a) is characterised by a disturbance of thought, mood, volition, perception, orientation or memory; and
(b) significantly impairs (temporarily or permanently) the person’s judgment or behaviour.
(Having quoted s 6, I’m not sure what my correspondent is quoting with paragraph numbers 3.1, 3.1.1 and 3.1.2 but it’s not the official version of the legislation found on the WA Legislation website maintained by the Parliamentary Counsel’s Office – https://www.legislation.wa.gov.au/legislation/statutes.nsf/law_a147019.html).
Accepting that ‘a disturbance of thought, mood, volition, perception, orientation or memory’ could be caused by a traumatic head injury then that might, prima facie, look like a mental illness but the section has to be read in context. Section 6(4) says “A decision whether or not a person has a mental illness must be made in accordance with internationally accepted standards prescribed by the regulations for this subsection.” The prescribed standards are (Mental Health Regulations 2015 (WA) r 4):
(a) the International Statistical Classification of Diseases and Related Health Problems published from time to time by the World Health Organisation;
(b) the Diagnostic and Statistical Manual of Mental Disorders published from time to time by the American Psychiatric Association.
I note that the International Statistical Classification of Diseases and Related Health Problems (ICD-10 Version 2016 (Online)) lists ‘Unspecified mental disorder due to brain damage and dysfunction and to physical disease’ under the heading ‘Mental and behavioural disorders’. Other relevant head injuries – Concussion, Traumatic cerebral oedema, Diffuse brain injury, Focal brain injury, Epidural haemorrhage, Traumatic subdural haemorrhage, Traumatic subarachnoid haemorrhage, Intracranial injury with prolonged coma, Other intracranial injuries and Intracranial injury, unspecified – are listed under the broad heading Injury, poisoning and certain other consequences of external causes, not a mental health disorder. Without accessing the DSM, I find it hard to believe that it would record a traumatic head injury as being a mental illness either.
On the same point I don’t think a heavily intoxicated patient is mentally ill. I note that s 6(2)(i) provides that a person is not to be taken to be mentally ill just because ‘the person uses alcohol or other drugs’. Even so ‘the serious or permanent physiological, biochemical or psychological effects of the use of alcohol or other drugs [may be]… regarded as an indication that a person has a mental illness’ (s 6(3)). The long term effects of alcohol or drugs may be evidence of or give rise to a mental illness but immediate intoxication does not equate to a mental illness.
With respect to police powers, section 156 says:
(1) A police officer may apprehend a person if the officer reasonably suspects that the person —
(a) has a mental illness; and
(b) because of the mental illness, needs to be apprehended to —
(i) protect the health or safety of the person or the safety of another person; or
(ii) prevent the person causing, or continuing to cause, serious damage to property…
(3) A police officer —
(a) must, as soon as practicable after apprehending a person under subsection (1), arrange for the person to be assessed by a medical practitioner or authorised mental health practitioner for the purpose of deciding whether or not to refer the person under section 26(2) or (3)(a) for an examination to be conducted by a psychiatrist…
Section 538 says:
A mental health practitioner is a person who, as one of the following, has at least 3 years’ experience in the management of people who have a mental illness —
(a) a psychologist;
(b) a nurse whose name is entered on Division 1 of the Register of Nurses kept under the Health Practitioner Regulation National Law (Western Australia) as a registered nurse;
(c) an occupational therapist;
(d) a social worker.
A person is an authorised mental health practitioner if they have been authorised by the Chief Psychiatrist under s 539.
A person has a traumatic head injury they do not need to be treated by an ‘authorised mental health practitioner’ or a psychiatrist, they presumably need to be treated by a neurologist or neurosurgeon or at least an expert in emergency medicine. They need to go to the emergency department not a mental health service.
Other justifications for treatment
The Mental Health Act 2014 (WA) is not an Act to justify the treatment of a person who lacks capacity. If the person lacks capacity to the power to treat is found in the common law and in the Guardianship and Administration Act 1990 (WA) s 110ZI.
Under common law, if a person is not competent then the doctrine of necessity applies (The doctrine of necessity – Explained (January 31, 2017)) and treatment that is reasonably necessary and in the patient’s best interests can be given which may include restraint and transport to hospital.
The Guardianship and Administration Act 1990 (WA) s 110ZI says that a health professional (which includes a registered paramedic; s 110ZH and Civil Liability Act 2002 (WA) s 5PA) may treat a patient where:
(a) … [the] patient needs urgent treatment; and
(b) the patient is unable to make reasonable judgments in respect of the treatment; and
(c) it is not practicable for the health professional who proposes to provide the treatment to determine whether or not the patient has made an advance health directive containing a treatment decision that is inconsistent with providing the treatment; and
(d) it is not practicable for the health professional to obtain a treatment decision in respect of the treatment from the patient’s guardian or enduring guardian or the person responsible for the patient under section 110ZD.
The definition of mental illness in s 6 is not test of competency. The Mental Health Act 2014 (WA) allows police detain, and then mental health professionals to treat, a person who is mentally ill even if they are competent to and do refuse consent.
Where a person is injured and not competent as a result of their injuries, then they need medical, as distinguished from mental health, services. The justification for that treatment is not in the Mental Health Act but the common law and the Guardianship and Administration Act. The power to make the decision on competence rests with the health professional not the police.
Where a person is injured and retains competence (or at least the capacity ‘to make reasonable judgments in respect of the treatment’) they can refuse treatment even where that is not in their best interests. The Mental Health Act is not a tool to compel a person to undergo treatment except in the circumstances described in the Act which, in context, would not include ‘a traumatic head injury, which results in a ‘temporary’ significant ‘disturbance of thought’.
In context it is my view that ‘a traumatic head injury, which results in a ‘temporary’ significant ‘disturbance of thought’ [WOULD NOT] fall within the definition of Mental Illness, and therefore enable police to compel such a person to hospital, under police powers under the Act.’