I tell my students that if a person doesn’t understand what you wrote, it’s the fault of the writer not the reader. A correspondent sent me a screen shot with this member update from Australian Paramedics Association (NSW) (‘APA (NSW)’).
When sending it my correspondent said:
Hey Michael. I believe you’ve been misinterpreted. You might want to contact APA and correct. I can see this advice causing some conflict on the road.
So the question is ‘if a police officer applies Section 22 [of the Mental Health Act 2007 (NSW)] and requests a Paramedic to transport the patient without the patient’s consent and without a police escort, should we [paramedics] transport the patient if after your assessment a Section 20 does not apply?’
APA(NSW) quote me as saying the answer is ‘no’ but my correspondent thinks I’ve been misinterpreted. They cannot both be right so either the APA(NSW) or my correspondent has misinterpreted what I’ve written. APA(NSW) link to one of my posts but because all I have is a screen shot I cannot follow the link, but I assume they are linking to the post NSW Police, paramedics and the mentally ill (May 15, 2018).
In that post I posited the question ‘If police detain a person under s 22, are NSW Ambulance Officers required to transport the person?’ I then said:
My view is that the answer to that question must be ‘no’. Anyone can call an ambulance if they believe an ambulance is required, but it does not compel the paramedics to treat the person or to treat them for the injury that the caller has identified. Consider police who find a person who appears to them to have a brain injury. Paramedics are called and determine that the person is intoxicated, does not require medical attention and can be safely left in the care of their friends. The mere fact that police called them, or police suspect a brain injury, does not compel the paramedics to treat the person as if they have a brain injury. Paramedics have to form their own view.
In other words, and with due respect to my correspondent, I do not think APA(NSW) have misinterpreted my position. I’ll try to sum up my thoughts:
- Police can act under s 22 if the person appears to the police officer ‘to be mentally ill or mentally disturbed’ and the person has committed or is committing an offence, they have recently attempted to kill themselves or someone else or are attempting to cause harm to themselves or someone else.
- Paramedics can take action under s 20 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.’
- The difference between s 22 and s 20 is the person only needs to ‘appear’ to the police officer to be mentally ill or mentally disturbed. Paramedics on the other hand need to believe the person is mentally ill or mentally disturbed and must have reasonable grounds for that belief. The more stringent conditions for paramedics is because they are health professionals. In State of New South Wales v Talovic  NSWCA 333 Emmett JA said (at ):
…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. Having regard also to the practical realities of the execution of police officers’ functions, it is likely that the legislature intended that police officers should not need to meet the same standard as ambulance officers when forming a view as to whether a person appears to be mentally ill or mentally disturbed.
- If police called an ambulance because they ‘believed’ a person had broken their leg, that would not compel paramedics to treat that person for a broken leg if the paramedics formed the view that the person’s leg was not broken. Paramedics have to make their own clinical decisions before giving treatment.
- The priority of a paramedic’s diagnosis can also be seen in s 20(2) and s 21. If a paramedic forms the view that ‘there are serious concerns relating to the safety of the person or other persons if the person is taken to a mental health facility without the assistance of a police officer’ they may request police assistance (s 20(2)). Where a police officer receives that request, he or she ‘must, if practicable: (a) apprehend and take or assist in taking the person the subject of the … request to a declared mental health facility’. That is if a paramedic forms the view that s 20 applies and police assistance is required, police are obliged to provide that assistance, they are not required, or even permitted, to form their own view of whether s 22 applies. There is no similar provision if police request ambulance assistance.
I agree with the APA(NSW) that:
To protect your registration and avoid unlawfully detaining a patient [you should not] … detain a patient unless you believe you are lawfully authorised to do so under Section 20. If in doubt, escalate to Control and insist that the patient be transported under Police detention, not yours.
After writing this post my correspondent wrote to say:
My interpretation of the email refers to the last bit RE transporting patients under s22.
It is quite common for police to write a s22, fill it out and handover to paramedics. If paramedics agree with the need for transport (ie or appears mentally ill or disturbed) then they can transport to hosp under a section 22 without police attending. It’s my interpretation that s81 allows for this. It is also allowed for within the MOU.
What APA are saying is that they believe Police should not be able to complete a s22 and not come with paramedics to hospital, as they believe Paramedics have no authority to do so. Which in fact they do under s81.
I see this situation no different to the transport of a patient by paramedics who have been placed under a schedule 1 by a local GP in the community.
Maybe it’s the wording of the APA email… but this is the interpretation of Paramedics on road.
My response is that if that’s what APA are saying then I agree with them. First there is no such thing as ‘a s 22’ or ‘a s 20’ – see Again revisiting the Mental Health Act 2007 (NSW) s 20 (April 18, 2017).
If police want to act under s 22 they can. If they call an ambulance, then it is up to the paramedics to form a view under s 20. If they form the view that they are entitled to detain and transport the patient well and good. If they do not form that view, then they should not do so. Paramedics are health professionals with a duty to act in their patient’s best interests, they are not the servants or agents of police. The fact that police have acted under s 22 does not relieve the paramedics of their duty to their patient to make their own assessment given that they, and not police, are trained health professionals. If paramedics agree with the need for transport, then they are exercising their power under s 20.
I see this as quite different from transport of a patient who has been seen by a medical practitioner and who has issued a certificate under s 19. Section 20 says an ambulance officer can detain a person if he or she holds the relevant belief; section 22 says a police officer can detain a person if he or she holds the relevant belief. Section 19 (and s 81) says a person may be taken and detained by someone other than the medical practitioner if the medical practitioner holds the relevant belief.
If paramedics respond to a person who has been detained by police, then it is my view that paramedics must make their own assessment of the patient and make their own determination under s 20 and record what are the grounds that give rise to the belief required by s 20. In an action for false imprisonment and/or unsatisfactory professional conduct I don’t think any tribunal would accept a paramedic saying ‘I did not have to consider those things as the police had formed the view they are required to form under s 22’. If a paramedic does not make his or her own assessment he or she is not acting as a health professional, but as a taxi driver.