I have been having correspondence with a fellow lawyer on the Mental Health Act 2007 (NSW) s 20. I have written multiple posts on this subject – see https://emergencylaw.wordpress.com/?s=%22Mental+Health+Act+2007+%28NSW%29%22.  Writing to a fellow legal practitioner forced me to think about, and summarise, the position that I have come to over the years of writing this blog.  I share that summary below:

I am more and more of the view that the Mental Health Act 2007 (NSW) s 20 does not say what paramedics think it says.  Section 20 (‘Detention on information of ambulance officer’) says:

(1) 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.

(2) An ambulance officer may request police assistance if of the opinion 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.

It says paramedics may take a person to a mental health facility, but it does not say that they may take them if they are competent and refuse treatment – see https://emergencylaw.wordpress.com/2019/09/29/using-force-under-the-mental-health-act-2007-nsw/.  There is no reference to ‘apprehend’ or ‘detain’ in s 20 but those words are used in sections:

• 18 (‘When a person may be detained in mental health facility’);
• 21 (‘Police assistance’); and
• 22 (‘Detention after Apprehension by Police’).

Compare, too, the differences in the section headings – the heading to s 20 refers to detention by a mental health facility on the ‘information of an ambulance officer’ whereas s 22 refers to detention by a mental health facility after a person has been ‘apprehended’ by police.  Section 20 is not entitled ‘Detention after apprehension by an ambulance officer’.

The inference is: given the power to detain or apprehend is given in ss 18, 21 and 22, the failure to use those words in s 20 must imply that it is not intended that paramedics have those powers.

I have also been persuaded that s 81 does not authorise paramedics to forcibly treat a person who is competent but refuses consent (again, see https://emergencylaw.wordpress.com/2019/09/29/using-force-under-the-mental-health-act-2007-nsw/).  Section 81 says that a person authorised to take a person to a mental health facility may use force (s 81(2)) and sedation (s 81(3)).  But if s 20 only authorises an ambulance officer to take someone who consents, or who is unable to consent then s 81 can only apply in those circumstances.  It does not expand a paramedic’s authority to use force or sedation to detain a person who, although mentally ill, remains competent and refuses treatment and transport.

If s 20 and s 81, when read together, did allow the use of force and sedation to treat a mentally ill person who remains competent but refuses treatment then there would be no need for s 22(2).  That subsection specifically calls up, and gives to police the power, to use force and other measures listed in s 81.    I would argue that the reason s 22(2) is there, with no equivalent in s 20, is to allow the administration of force, and sedation, to a person who has been ‘apprehended’ by police and is therefore being subject to enforced treatment.  In other words s 22(2) when read with s 81 allows police to detain a person who is mentally ill, competent and refusing treatment but the absence of the word ‘detain’ and the absence of an equivalent to s 22(2) in s 20 means that paramedics do not have that power.

In summary, my view is that:

• If a person is not competent to give consent then the doctrine of necessity (https://emergencylaw.wordpress.com/2017/01/31/4203/) justifies treatment and s 20 allows the paramedics to bypass the nearest hospital to go to a mental health facility whilst at the same time providing clinically indicated treatment (that may include restraint or sedation). The power to give that treatment where the patient cannot consent (as opposed to refuses to consent) is also supported by s 81.
• Where a person does consent, they can be transported to a mental health facility and given whatever treatment they consent to. Once at a mental health facility, the facility may choose to detain the person pending examination by an appropriate practitioner, based only on the paramedic’s assessment (s 18).
• If a person remains competent and refuses consent s 20 does not, in my view, authorise detention of the person and treatment without consent by ambulance officers.  Paramedics who fear the person will, if transported by ambulance, be a threat to themselves or others, need to call police (s 20(2)) who have the power to ‘apprehend’ the person and the police must exercise that power when requested to do so by paramedics (s 21(1)).  The problem here is that this only applies if the patient will pose a threat if transported by ambulance.  If the reason they will pose a threat is because they don’t want to be transported but they remain competent, mentally ill, but no threat to others if not subject to enforced transportation,  then there is no power under s 20 to compel them to come with the paramedics and therefore no power to call for police assistance (s 20(2)).  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 (see https://emergencylaw.wordpress.com/2015/10/05/tasmania-alcohol-affected-patient-refuses-treatment-and-is-not-guilty-of-assaulting-police-part-2/).
• If a person is or appears to be mentally ill, remains competent, is refusing treatment and transport and:

 … is committing or has recently committed an offence or … 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

then police can act under s 22.  Further, if police take action under s 22 that ‘calls up’ the powers for compulsory treatment under s 81.  That is essential as it allows the treatment to be given even when the patient refuses consent.  If police have acted under s 22 then they are authorised to take the person to a mental health facility or to seek assistance from ambulance (s 81).  Paramedics who transport a patient who has been apprehended by police under s 22 could then rely on s 81 to restrain or sedate the competent patient contrary to the patient’s wishes.

• It is still, however, my view if police, acting under s 22, form the view that a person is mentally ill and apprehend them and call for ambulance assistance, paramedics are not obliged to act upon that request if they form the view that the person is not mentally ill (see https://emergencylaw.wordpress.com/2018/05/15/nsw-police-paramedics-and-the-mentally-ill/).

Conclusion

If a person is or appears to be mentally ill, remains competent, is refusing treatment and transport and is not committing an offence or posing a threat to him or herself or to others, then there is no power in either ss 20 or 22 to detain the person and treat them against their will (see also Stuart v Kirkland-Veenstra [2009] HCA 15).

The use of force is limited to police and only in cases where a person is a threat to themselves or others (s 22), not just where it would be in the patient’s best interests. This is consistent with the aims of the Mental Health Act to restrict the application of non-consensual and forced treatment (see Mental Health Act 2007 (NSW) ss 3 and 12).

What follows is that I am increasingly of the view that, absent police action under s 22, the Mental Health Act 2007 (NSW) does not give ambulance officers the power to detain and treat a person who is mentally ill, competent and refusing consent to treatment/transport.   Further police action under s 22 can only be justified where the person is committing an offence or posing a threat to themselves or others.  Compulsory treatment and transport, just because it would be in the patient’s best interests is not justified under ss 20, 21 or 22.

This is all matters of complex legality.  Deciding whether a mentally ill person remains competent that is whether, at the time that a decision has to be made, the person can understand its nature and effects (PBU & NJE v Mental Health Tribunal [2018] VSC 564, [154] (Bell J); see https://emergencylaw.wordpress.com/2018/11/24/latest-decision-on-refusing-medical-treatment-reviewing-the-principles/) is no doubt a complex clinical question.