This question came as a comment to an earlier post – Revisiting the role of police and paramedics when dealing with the mentally ill in NSW (September 14, 2019)
An issue has arisen where NSW Police have undertaken the initial transport of a person to a local hospital (not a Declared Mental Health Facility (DMHF)) using their Section 22(2) powers (including reference to Section 81) relying on the phrase “…may take to or from a mental health facility or another health facility …”. Section 80(3) did not appear to apply as they required no treatment for any physical condition. The patient was later transferred by NSW Ambulance to a DMHF under the relevant sections.
Given that the Division in which Section 81 appears is entitled “Transfer of patients” and seems to deal with interfacility transfers, and the rest of Section 22(2) requires that the patient is “…is authorised under that section [Section 81]…”, would the powers under Section 81 be available outside of interfacility transfers?
The police involved are very professional and we enjoy a good working relationship. I do not intend in any way to question their intentions or integrity as I have a great deal of respect for them.
Thanks once again for your time and interest.
Section 22 of the Mental Health Act 2007 (NSW) says
(1) A police officer who, in any place, finds a person who appears to be mentally ill or mentally disturbed may apprehend the person and take the person to a declared mental health facility if the officer believes on reasonable grounds that:
(a) the person is committing or has recently committed an offence or that the person has recently attempted to kill himself or herself or that it is probable that the person will attempt to kill himself or herself or any other person or attempt to cause serious physical harm to himself or herself or any other person, and
(b) it would be beneficial to the person’s welfare to be dealt with in accordance with this Act, rather than otherwise in accordance with law.
(2) A police officer may apprehend a person under this section without a warrant and may exercise any powers conferred by section 81 on a person who is authorised under that section to take a person to a mental health facility or another health facility.
Section 81 appears in Chapter 4 – Care and Treatment; Part 1 – Rights of Patients or Detained Persons, Designated Carers and Principal Care Providers, Division 3 – Transfer of Patients. The section says, relevantly:
(1) The persons listed below may take to or from a mental health facility or another health facility any person who is authorised by this Act to be taken, or transferred, to or from the facility:
(a) a member of staff of the NSW Health Service,
(b) an ambulance officer,
(c) a police officer,
(d) a person prescribed by the regulations.
(2) A person authorised by this Act to take a person to or from a mental health facility or other health facility may:
(a) use reasonable force in exercising functions under this section or any other provision of this Act applying this section, and
(b) restrain the person in any way that is reasonably necessary in the circumstances.
…
It’s true that the headings would imply this section is limited. It is under a heading ‘Transfer of patients’ – what does that mean? Is it just interhospital transfer or transfer from the street to a health institution?
It would certainly seem that s 81 is limited in its application. Section 80(1) says ‘An involuntary patient or a person detained in a mental health facility may be transferred from the mental health facility to another mental health facility or another health facility’ and s 81, being in the same Division and Part of Chapter 4 talks about the powers of authorised persons who are giving effect to decisions made under s 80. I would infer that ‘the powers under Section 81’ would not, normally, ‘be available outside of interfacility transfers’ save that s 22(2) specifically calls up those powers. In other words a police officer acting under s 22 can exercise the powers under s 81 in particular to use force and restrain the person should that be necessary.
As for police taking a person to ‘a local hospital (not a Declared Mental Health Facility (DMHF))’ s 22(1) does say ‘A police officer … may apprehend the person and take the person to a declared mental health facility…’ It does not say to ‘a hospital’. It may be the case that the hospital is a declared facility. NSW Health says (Declared mental health facilities (21 August 2019)):
The Secretary can designate classes of declared mental health facility, and the purposes for which they can be used. There are currently three classes of declared mental health facility:
- Mental Health Emergency Assessment Class – this class provides for the short-term detention of persons for initial assessment, immediate care and to arrange transport to an inpatient unit. All declared emergency departments fall into this class.
- Mental Health Assessment and Inpatient Treatment Class – this class allows for the full range of inpatient functions to be conducted. All declared mental health inpatient units and Psychiatric Emergency Care Centres fall into this class.
- Community or Health Care Agency Class – this class provides for the administering of community treatment orders.
That document says ‘All declared emergency departments fall into’ the ‘Mental Health Emergency Assessment Class’. It does not say ‘All emergency departments are declared …’ so there may be some emergency departments that are not declared mental health facilities but I imagine that most, if not all, are.
For those that are declared then yes, police can exercise the powers listed in s 81 when exercising their authority under s 22.
Paramedics
I have noted before that despite what is clearly conventional wisdom, s 20 (that deals with ambulance officers) does not say that ambulance officers may ‘apprehend’ or ‘detain’ a person who does not want to go with them, nor does it say that ambulance officers may exercise any powers under s 81. It is not clear to me that s 20 allows ambulance officers to detain a person who is mentally ill but remains competent (noting that the presence of a mental illness does not mean the patient is not competent to make decisions (see Victorian decision on refusing medical treatment – reviewing the principles (November 24, 2018)). The only support for that proposition is found in the fact that s 20 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
Section 20 says that ambulance officers may take a person to a mental health facility and the staff at the facility may detain the patient, not that the officers can detain the patient outside the facility if he or she refuses treatment/transport. If ambulance officers feel the person needs to be detained against their will they should request police assistance (s 21) and police, not paramedics, can ‘apprehend and … assist in taking the person the subject of the … request to a declared mental health facility’.
If the patient is not competent then they cannot refuse or consent to treatment and treatment that is reasonably necessary and in the patient’s best interests can be given (The doctrine of necessity – Explained (January 31, 2017)). No doubt deciding ‘whether the person has the ability to remember and use or weigh relevant information and communicate a decision, not whether the person has actually done so’ (PBU & NJE [2018] VSC 564 [206]) would be difficult in the best of times and made harder by a mental illness. But if they are competent they can refuse treatment and their involuntary detention by ambulance, and police, is only justified if, in the opinion of an ambulance officer ‘there are serious concerns relating to the safety of the person or other persons’ (s 20(2)) or if in the opinion of police (s 22(1)):
the person is committing or has recently committed an offence or that the person has recently attempted to kill himself or herself or that it is probable that the person will attempt to kill himself or herself or any other person or attempt to cause serious physical harm to himself or herself or any other person.
Neither s 20 nor s 22 allow detention on the basis that the person is mentally ill, and it would be in their best interests to be taken to a mental health facility.
Conclusion
The powers listed in s 81 are available to police acting under s 22 because s 22(2) says they are.
Arguably they are not available to ambulance officers as s 20 does not empower ambulance officers to ‘detain’ a person nor does s 20 specifically ‘call up’ s 81 as s 22 does. If ambulance officers want to detain a competent patient they need to request police assistance and can only do so if ‘there are serious concerns relating to the safety of the person or other persons’.
If the patient is not competent paramedics can provide reasonably necessary treatment which may include restraint and sedation but that depends on the common law of necessity and the application of good paramedic practice rather than specific provisions in the Mental Health Act 2007 (NSW).
POSTSCRIPT
This post raised a number of comments. My initial correspondent wrote:
I had thought that Section 22(2) would have allowed for Police to exercise the Section 81 powers for the purpose of inter-facility transfers, not on initial transport for assessment by a medical professional, as Section 22(2) required that the patient be authorised under Section 81 before the powers could be used under Section 22. So if Section 81 only applies to inter-facility transport then Section 81 powers wouldn’t be available under Section 22(2) outside of these transfers. If it wasn’t for the requirement for the person to be authorised under Section 81 I would have agreed.
Another wrote:
I had not considered that s 81 may be limited such that it does not apply to Ambulance Officers relying on s 20(1).
Can you comment on
(a) the use of the broad “any person who is authorised *by this Act* to be taken” in s 81? Why not the more limited *by this Division* if it is limited only to interfacility transfers?
(b) s 59, like s 22, refer to police assistance in transporting a patient, and like s 22 refers expressly to s 81 powers. This would seem to support the argument that s 81 is limited and therefore needs to be expressly called upon to be enlivened. But what of the ‘Note’ to s 59: “Section 81 sets out the persons who may take a person to a mental health facility and their powers when doing so.”?
I’ll give some more detail on my thinking.
It is a rule of statutory interpretation that every word and section is there for a reason, it has to have work to do. As I’ve noted s 22 allows police to apprehend a mentally ill person and it refers to s 81 and says that they can exercise those s 81 powers when acting under s 22.
As for s 22(2) it says:
- A police officer may
- apprehend a person under this section without a warrant and
- may exercise any powers conferred by section 81 on a person who is authorised under that section to take a person to a mental health facility or another health facility.
If it meant they can only rely on s 81 in circumstances where s 81 applies then again that would have no work to do as s 81 already says when it can be used. I certainly read that as saying police acting under s 22 are not authorised, by s 22(1) to use force etc but they are empowered to use that force as if they were acting under s 81.
Section 81 says
(1) The persons listed below may take to or from a mental health facility or another health facility any person who is authorised by this Act to be taken, or transferred, to or from the facility:
(a) a member of staff of the NSW Health Service,
(b) an ambulance officer,
(c) a police officer,
(d) a person prescribed by the regulations.
(2) A person authorised by this Act to take a person to or from a mental health facility or other health facility may:
(a) use reasonable force in exercising functions under this section or any other provision of this Act applying this section, and
(b) restrain the person in any way that is reasonably necessary in the circumstances.
(3) A person may be sedated, by a person authorised by law to administer the sedative, for the purpose of being taken to or from a mental health facility or other health facility under this Act if it is necessary to do so to enable the person to be taken safely to or from the facility.
As noted this appears in a part of the Act headed ‘Transfer or patients’. It is clearly arguable that an ambulance officer is authorised to take a person to a mental health facility (s 20) and so are police (s 22).
If s 81 is not limited to cases where people have been admitted for treatment and are then being transported either s 81, or s 22(2) have no work to do. If paramedics, acting under s 20, are authorised to use force or sedation by s 81 then so are police by virtue of s 22(1). If that’s the case, then s 22(2) has no work to do.
I agree that the reference in s 59(2) to s 81 also supports the argument that to rely on s 81 when police are detaining someone who is at large, either having a crisis (s 22) or who is at large contrary to a community treatment order (s 59) it must be specifically called up. It is not called up for ambulance officers in s 20, rather ambulance officers can call police who can apprehend the person (s 21).
The note to s 59 does not form part of the Act (Interpretation Act 1987 (NSW) s 35(2)) it’s just a summary of the effect of the section but doesn’t replace the actual words of the section. It’s just a cross-reference.
Further, if s 81 does apply one has to ask why there is s 20. Section 20 says ambulance officers may take a person to a mental health facility. It adds little so 81(1) other than setting out tests that must be met before they take that action; but in effect both s 81 and 20 say an ambulance officer may take a person to a mental health institution. Why are both needed? Section 20 refers to ambulance officers taking action on their own initiative, s 81 is about the transfer of patients.
Section 81 in my view has to be read with s 80 – Transfer of Patients to or from Mental Health Facilities which talks about transfers between health facilities and mental health facilities and between mental health facilities. Section 80 appears in the same Chapter, Part and Division as s 81 so it appears that they are linked. Section 81 relates to those transferring patients under s 80.
I think that argument makes the most sense and gives effect to the words and structure of the Act. I know that it is contrary to the traditional interpretation, and both are just arguments. I can certainly see that s 20 and s 22 authorise ambulance officers and police to take a person to a mental health facility and that does appear to trigger s 81. But, the most persuasive point for me, is if that’s true then s 22(2) has no work to do.
The ultimately resolution of those arguments can only be resolved if someone takes the matter to court.
Australian Emergency Law 
Hi Michael,
There are quite a few common law cases on subduing/âarrestingâ (in the factual sense of the term) mentally-ill persons.
The more recent cases, eg 20th C, are noted in Campbellâs little book on Mental Disorder and the law.
But there are also some old Yearbook cases â I have them fairly handy if you want them (note attached).
From memory, they were based upon ânecessityâ, and probably have a doctrinal link to breach of the peace.
Regards,
ja
John Aberdeen
Acting Magistrate & Coroner
Coroners Court of Queensland
I have no doubt that paramedics can detain and treat a person who is having a mental health crisis and who cannot consent to treatment and that would be based on common law of necessity rather than mental health legislation and in particular the Mental Health Act 2007 (NSW). The power to deprive a person of their liberty is strictly guarded and the fact that police are specifically given the power to apprehend and to use force would suggest to me that paramedics do not have that power in cases where the patient remains competent, even if mentally ill.
And the power paramedics have to call police to compel detention, or police can act on their own initiative, require a threat to the health or life of the person or another. That is also consistent with mental health legislation that seeks to limit the circumstances in which a person can be held against their will. A wide reading of s 20 would be inconsistent with the way mental health legislation is interpreted.
Hi Michael,
I’m just wondering what your thoughts are regarding sedation of patients to facilitate transport to hospital from the community. I note that your interpretation is that “s 20 does not empower ambulance officers to ‘detain’ a person nor does s 20 specifically ‘call up’ s 81 as s 22 does.” There is also no mention of sedation in s20 however it is mentioned in 81(3).
Would your thoughts be that an ambulance officer is not empowered to sedate a patient under s20 of the mental health act ?
I would also add that the NSW protocols suggest a patient authorised under s19, s20, s22 or s24 can be physically or chemically restrained. (This is found in the flowchart for MH6 in the publicly available NSW Ambulance Protocols app).
I think a patient can be sedated if that is clinically indicated and the patient is not competent to consent, or refuse consent to treatment (doctrine of necessity and s 81). I also think they can sedate the person if their treatment/transport is authorised eg by a medical practitioner acting under s 19 or police under s 22. That is the effect of s 81, it says if you are able to take a person you can sedate them but it doesn’t say when you can take them, for that you look to the other sections and ss 19 and 22 allow treatment contrary to a person’s wishes, in my view s 20 does not. So a paramedic cannot sedate a competent, mentally ill patient who is refusing treatment/transport. They can sedate a patient who cannot consent or whose transport is authorised by someone who does have the authority to ‘apprehend’ or ‘detain’ the person or to authorise that action.
I do think a patient authorised under s 19, 22 or 24 may be sedated by an ambulance officer, if sedation “is necessary to do so to enable the person to be taken safely to or from the facility.” Equally a patient who consents, or is not competent to consent, can be ‘taken’ by virtue of s 20 and also sedated.
So to be clear, my thoughts are that an ambulance officer is not empowered to sedate a competent patient who is refusing treatment under s20 of the mental health act.
Thanks for your reply. I wonder if an ambulance officer would then also be authorised to sedate the patient if police were called for assistance under s21. I see s81 is also called up in 21(2).
Would it then be that an ambulance officer is not authorised under s20, but can then compel a police officer to assist under 21(1) which then calls up s81 so that the ambulance officer is able to sedate the patient?
Thanks again for your thoughts.
Yes I think that is right and I think that it’s consistent. Paramedics do not use force, they cannot apprehend a person, but they can call on police and it is police who have the traditional powers to deprive a person of their liberty. Section 20 allows paramedics to call for police assistance if ‘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’ not if there are concerns for their safety if they are left to their own devices. As I said in my post at https://emergencylaw.wordpress.com/2019/10/07/mental-health-act-2007-nsw-s-20-a-summary-of-my-current-thinking/:
“It would be perverse if police could detain a person who poses no threat but may pose a threat if forced to receive treatment that they do not want. It seems to me s 21 is relevant for a person who is not competent to consent to or refuse treatment and who poses a threat to him or herself or others including the treating paramedics. In those circumstances s 21 may authorise police detention (to avoid claims of false imprisonment) and allow police to use the force that they are trained to use whilst both the common law and, arguably, s 81 justify appropriate treatment in the absence of consent. I cannot see that treatment in the presence of an express or implied, competent refusal of consent is authorised by s 20 and therefore s 21 would not authorise treatment, and force, where the only reason the person is a threat is because he or she is exercising his or her right to refuse treatment.”
So I do think if police ‘apprehend’ the person under s 21 then yes ambulance officers could use sedation if clinically indicated (s 81) but I don’t think it allows paramedics to call police because they think treatment would be in the person’s best interests but the person is refusing consent and says ‘I will resist you if you try to force me to come with you’. A person is entitled to use force to resist unlawful detention and if they are no threat to the paramedics if they don’t try to force them into an ambulance then it seems to me the criteria in s 20(2) is not met.