Today’s correspondent asks:

  1. Can I detain (or apprehend) a patient suffering a mental illness in the ACT whilst working as an event Paramedic?
  2. Can I detain (or apprehend) a patient suffering a mental illness in any state or territory of Australia as a Registered Paramedic whilst off duty?

A bit about me to make this easier:

I’m an interstate Paramedic (AHPRA Registered).  I have the ability to detain patients under s56 of the Mental Health Act in South Australia whilst working for SA Ambulance. Sadly, I exercise these powers quite often, as despite the immense effort of staff, the mental health system lacks resources in SA. I also happen to work for a ‘private Ambulance Service’ in the ACT. I say ‘Ambulance Service’, because the entity is authorised to provide Ambulance Services under the Emergencies Act 2004, with approval from the minister;

In SA there is a low threshold (in my opinion), and this is shared by the Chief Psychiatrist, see s56 (c):

  (c)         it appears to an authorised officer that—

                  (i)         the person has a mental illness; and

(ii)         the person has caused, or there is a significant risk of the person causing, harm to himself or herself or others or property or the person otherwise requires medical examination.

Note I can place someone under ‘Care & Control’ under s56 merely for damaging their own property.  Imagine, a well-minded neighbour calls the ambulance service for a homeowner damaging their own private property secondary to a situational crises.

For my ACT work, my research has been found wanting, as I cannot find an actual definition for an authorised officer, apart from in ‘MENTAL HEALTH ACT 2015 (NO. 38 OF 2015) – SECT 139CB’, where it lists an ‘Authorised Ambulance Paramedic’ but does not define the term.  What constitutes authorised?  Clearly ACT Ambulance Paramedics fit into this, but do NSW Ambulance Paramedics or private Paramedics count?  I have not yet detained anyone, but want to know my legal standing before doing so – E.g. A person appears to be suffering a mental illness at a music festival in the ACT.  In the absence of another authorised officer (e.g. Medical Practitioner), is a private paramedic able to section a patient?

In another scenario, I am holidaying in a country town of Queensland and note a person on the street displaying signs of a mental illness.  I am not concerned for my own safety, scene is safe, but I call 000 and request Ambulance and Police to attend.  There will be some delay before their attendance.  The patient/person wishes to leave the scene and I feel they are a threat to themselves.  Can I detain/section/apprehend them?

Can you please shed some light on the above questions?

Depriving a person of their liberty is the ultimate exercise of state power and the power is therefore generally limited to the agents of the state (though, having said that, there are powers of citizen’s arrest and as we saw in Sydney recently, taking action to detain a person who is an active danger is not only encouraged but honoured).   Putting aside citizen’s arrest the power to detain is reserved for the state so we might, as a starting position, assume that a paramedic who is not currently working for a jurisdictional ambulance service will not have an independent authority to detain a person for their own good.   Let us then look at the law.

My correspondent is correct, the relevant Act in the ACT is the Mental Health Act 2015 (ACT).  Section 80 says:

A police officer or authorised ambulance paramedic may apprehend a person and take the person to an approved mental health facility if the police officer or paramedic believes on reasonable grounds that—

(a) the person has a mental disorder or mental illness; and

(b) the person has attempted or is likely to attempt—

(i) suicide; or

(ii) to inflict serious harm on the person or another person.

As my correspondent has noted it does not refer to a ‘paramedic’ but an ‘or authorised ambulance paramedic’.   The Dictionary that forms part of the Act says:

“authorised ambulance paramedic “means a member of the ambulance service—

(a)     employed as a paramedic; and

(b)     authorised by the chief officer (ambulance service) to apprehend people with a mental disorder or mental illness.

It refers to ‘the’ ambulance service, not ‘an’ ambulance service so I would infer that means ACT Ambulance Service.  In any event the paramedic has to be authorised by the chief officer (Ambulance Service).  If my correspondent is acting for an approved emergency service provider (Emergencies Act 2004 (ACT) Part 4.6) then in my view they are not a member of ‘the’ ambulance service.  Even if they were, the absence of an express authority means that my correspondent is not an ‘authorised ambulance paramedic’ and has no authority to act under the Mental Health Act 2015 (ACT) s 80.    That makes sense when we recall that s 80 says that an authorised paramedic ‘may apprehend a person and take the person to an approved mental health facility’ (emphasis added).  An event paramedic may want to detain a person, but they probably don’t want to transport them.

There are both common law and statutory powers to use reasonable force in self-defence (including the defence of others) and to prevent a suicide (in the ACT see Criminal Code 2002 (ACT) s 42 and Crimes Act 1900 (ACT) s 18 respectively). That would give rise to a power to detain a person who was a danger to others or was threatening to take their own life (not just damage their own property or who otherwise would benefit from mental health care).  Equally if the person’s symptoms mean that he or she is not competent to give consent (remembering that being mentally ill does not, of itself, mean a person is not competent – see Victorian decision on refusing medical treatment – reviewing the principles (November 24, 2018)) then the doctrine of necessity would justify action that is reasonable in the circumstances and in the patient’s best interests and that may include seeking to gently detain a person pending arrival of police or ACT Ambulance.  I’m not a clinician but one would have be careful that attempts to detain a person ‘in their own best interests’ did not do more harm than good if they were not an actual threat to themselves or others but that is a matter for clinical judgment.

When it comes to interstate action every state and territory does provide for interstate cooperation in the exercise of powers and the treatment and transport of the mentally ill (see for example Transporting the mentally ill from NSW to the ACT (July 18, 2018) and Mental health services by paramedics across the NSW/Victoria border (October 25, 2018)).

Without going through every section in every state, the principal is that authorised officers can exercise their authority when interstate.  As my correspondent has noted, a paramedic in South Australia has ‘the ability to detain patients under s56 of the Mental Health Act in South Australia whilst working for SA Ambulance’ (see definition of ‘authorised officer’ and ‘ambulance officer’).  That would mean that if in Queensland for work, eg on an interstate deployment, my correspondent could exercise the relevant powers, but not whilst on holiday.

The powers conferred on paramedics are conferred on them in their capacity as employees of the jurisdictional ambulance services and therefore as agents of the State. (Here I note that the power to detain the mentally in WA is vested in police as the state does not run the ambulance service – see Trauma or mental illness – WA (June 19, 2019)).  It follows that in my view the answers to the questions asked are:

  1. Can I detain (or apprehend) a patient suffering a mental illness in the ACT whilst working as an event Paramedic?

The short answer is ‘no’, at least not under the provisions of the Mental Health Act 2015 (ACT).  The answer maybe ‘yes’ if the person is a threat to others, threatening suicide or not competent to give consent to treatment and what is proposed is reasonable in the circumstances and in the patient’s best interest.

  1. Can I detain (or apprehend) a patient suffering a mental illness in any state or territory of Australia as a Registered Paramedic whilst off duty?

No.

For a related post, see The mentally ill and event first aid (January 10, 2019).