In response to my post Paramedics and the mentally ill – Queensland (February 13, 2014) a correspondent wrote:
I was wondering if you have any thoughts on move away from EEO’s under the Mental health act, to EEA’s under the Public Health Act 2005 (Section 157). It seems that it only increases the opportunities for abuse.
My original post, written in February 2014, discussed the Mental Health Act 2000 (Qld) s 33. The Act of 2000 was repealed and replaced by the Mental Health Act 2016 (Qld). There is no power in the 2016 Act for an ambulance officer to make an Emergency Examination Order. The power of ambulance officers to detain and treat a mentally ill person are now contained in the Public Health Act 2005 (Qld) Chapter 4A. My correspondent says:
… it seems to me the wording in the public health act seems to be much more “Catch All” than the wording in the repealed Mental Health Act.
For example – it seems to me that an injured person who was intoxicated and refusing treatment for a serious injury, could be detained and transported to hospital, even if they patient was assessed to have the capacity to refuse treatment.
The original poster was concerned that the powers under the repealed Mental Health Act were being applied too broadly – and it now seems that the EEA in the Public Health Act are even more broad.
Chapter 4A of the Public Health Act 2005 (Qld) doesn’t claim to deal with people who are mentally ill, instead it refers to ‘Persons with Major Disturbance in Mental Capacity’. Section 157B says:
(1) This section applies if an ambulance officer or police officer believes—
(a) a person’s behaviour, including, for example, the way in which the person is communicating, indicates the person is at immediate risk of serious harm; and
a person is threatening to commit suicide
(b) the risk appears to be the result of a major disturbance in the person’s mental capacity, whether caused by illness, disability, injury, intoxication or another reason; and
(c) the person appears to require urgent examination, or treatment and care, for the disturbance…
(3) The ambulance officer or police officer may detain the person and transport the person to a treatment or care place.
Section 157L says:
An ambulance officer or police officer may exercise the power to detain and transport a person under this chapter with the help, and using the force, that is necessary and reasonable in the circumstances.
It’s true this is a very broad power. Under the Mental Health Act 2000 (Qld) an ambulance officer had to be satisfied that the patient was suffering from a mental illness, that was ‘a condition characterised by a clinically significant disturbance of thought, mood, perception or memory’ (Mental Health Act 2000 (Qld) s 12, now repealed). Under this new test what is required is a belief that the person has a ‘major disturbance in the person’s mental capacity, whether caused by illness, disability, injury, intoxication or another reason’ (emphasis added). That allows a much greater range of causes to be considered.
What is ‘mental capacity’ and therefore what is a ‘major disturbance in the person’s mental capacity’ is not defined. It follows that I think my correspondent is correct, the powers in the Public Health Act would allow ambulance officers to detain and treat, with force if necessary, a ‘person who was intoxicated and refusing treatment for a serious injury … even if they patient was assessed to have the capacity to refuse treatment’ provide that there was a ‘major disturbance in the person’s mental capacity’. It would not allow action just because the person refused treatment – there is a still a right to refuse treatment – there has to be a ‘major disturbance in the person’s mental capacity’ which may be present even if they are still competent to understand the information being given.
Were a paramedic to act under s 157D and were the patient to allege false imprisonment there would, I suggest, be detailed examination of the basis upon which the paramedic made the assessment that there was a ‘major disturbance in the person’s mental capacity’ rather than an assessment that the person was not making a wise decision. And if it was agreed or established that the person could ‘at the time the decision had to be made, the person could understand its nature and effects’ (see Victorian decision on refusing medical treatment – reviewing the principles (November 24, 2018)) there would have to be a ruling on whether or not that was consistent with a finding of a ‘major disturbance in the person’s mental capacity’.
A court may determine that a finding that a patient retains competence (as defined in, for example, PBU & NJE v Mental Health Tribunal  VSC 564, In Re C (Adult: Refusal of Treatment)  1 WLR 290 and Gillick v West Norfolk and Wisbech Area Health Authority  1 AC 112) means that they do not have a sufficiently ‘major disturbance in the person’s mental capacity’ but equally a court may find that the issue depends on all the circumstances. Until that issue is resolved paramedics and police will have to make their own decision on whether the patient’s behaviour represents a ‘major disturbance in the person’s mental capacity’ or just an unwise decision.
Compare the Queensland Act to the NSW Act
It is interesting to compare the Public Health Act 2005 (Qld) with the Mental Health Act 2007 (NSW) s 20 as discussed in my post Mental Health Act 2007 (NSW) s 20 – a summary of my current thinking (October 7, 2019). In that post I said I do not think the NSW Act allows paramedics to detain and treat a person who retains capacity to consent, even if they are mentally ill. One reason for that thinking was the omission of the words ‘apprehension’ or ‘detain’ from s 20 but the use of those words in ss 18 and 22.
The Queensland Act does allow paramedics to ‘detain’ a person and specifically allows them to use force in the process. If I’m correct in my analysis of the NSW Act then, by the same logic, the use of the word ‘detain’ in s 157B(3) of the Queensland Act does imply that treatment can be imposed against a patient’s wishes, suggesting a person can be Gillick competent but still have a sufficiently ‘major disturbance in the person’s mental capacity’. Further the use of that language in the Queensland Act is further evidence that if s 20 of the NSW Act was meant to mean what many paramedics thinks it means, ie they can detain and treat a person against their competent wishes it would, as the Queensland Act does, use that sort of language.
As another interesting comparison, the Queensland Act says (ss 157D and 157E)
If the ambulance officer or police officer takes the person to a treatment or care place that is a public sector health service facility, the officer must immediately make an authority (an “emergency examination authority” ) for the person…
A person subject to an emergency examination authority may be detained in a treatment or care place that is a public sector health service facility for a period (the “examination period” ) of not more than 6 hours starting when the authority is given to the health service employee under section 157D (4) .
Again, many NSW paramedics think that s 20 allows them to make some sort of detention order. Section 20 (unlike the Public Health Act 2005 (Qld)) says no such thing. It says that the paramedics can take a person to a mental health facility and (s 18) the mental health facility may detain the person. There is not prescribed form or ‘order’ from a NSW paramedic. The paramedics may hand over a patient care record where they have recorded the information that supports their belief ‘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 [the Mental Health] Act’ but it is not an ‘order’ nor does the action by the paramedics authorise detention as the Queensland order does. In NSW because transport is to a mental health facility, not just any health facility, the power to detain lies with the health facility who may act on the information to detain the patient but are not ‘authorised’ by the paramedics to detain the patient, the authority lies with the mental health facility (see Revisiting the Mental Health Act 2007 (NSW) s 20, again (May 13, 2019); see also Is it legal to photocopy a ‘section 20’? (February 4, 2018)).
It seems to me the Queensland Act lends weight to my view on the NSW Act. The NSW Act does not allow detention of a competent person against their will nor does it give NSW paramedics the power to order or authorise anyone else to detain the patient. The NSW Act says paramedics can take a person to a mental health facility. If it meant more than that it could much clearer language and the fact that Queensland has done so would lend weight to any argument that if NSW meant the law to have the same effect, they would use the same sort of language.