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 The Act of 2000 was repealed and replaced by the Mental Health Act 2016 (Qld).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… it seems to me the wording in the public health act seems to be much more “Catch All” than the wording in the repealed Mental Health Act.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The original poster was concerned that the powers under the repealed Mental Health Act were being applied too broadly – and it now seems that the EEA in the Public Health Act are even more broad.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
Example—
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 [2018] VSC 564, In Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290 and Gillick v West Norfolk and Wisbech Area Health Authority [1986] 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…
And
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.
Australian Emergency Law 
Following this post I received an email that said “Michael, whilst you’re on a roll with NSW and Qld legislation on mental health patients and ability to detail, the SA legislation is even more descriptive and makes the decision of a paramedic much easier”. I was referred to s 56 of the Mental Health Act 2009 (SA). For the purposes of that Act an ‘authorised officer’ includes an ambulance officer (s 3). Section 56 says:
(1) This section applies to a person if—…
(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.
(2) An authorised officer may form an opinion about a person under subsection (1)(c) based on the officer’s observations of the person’s behaviour or appearance or reports about the person’s behaviour, appearance or history (which may include reports about matters occurring outside the State).
(3) An authorised officer may, subject to this section, exercise the following powers in relation to a person to whom this section applies:
(a) the authorised officer may take the person into his or her care and control;
(b) the authorised officer may transport the person from place to place;
(c) the authorised officer may restrain the person and otherwise use force in relation to the person as reasonably required in the circumstances;
(d) the authorised officer may restrain the person by means of the administration of a drug when that is reasonably required in the circumstances;
(e) the authorised officer may enter and remain in a place where the authorised officer reasonably suspects the person may be found;
(f) the authorised officer may search the person’s clothing or possessions and take possession of anything in the person’s possession that the person may use to cause harm to himself or herself or others or property.
(4) An authorised officer who takes the person into his or her care and control must, as soon as practicable—…
(c) in the case of a person referred to in subsection (1)(c)—
(i) transport the person, or arrange for the person to be transported by some other authorised officer or by a police officer, to a treatment centre or other place for medical examination; and
(ii) give the person a copy of a written statement in the form approved by the Chief Psychiatrist (a “statement of rights”)—
(A) informing the patient of his or her legal rights; and
(B) containing any other information prescribed by the regulations.
This section appears to confirms a power to impose treatment (an ambulance officer ‘may take the person into his or her care and control’) even when a patient may be competent to give or refuse treatment (why else given them a “statement of rights”?). Again if s 20 of the NSW Act meant to give those sort of powers, it could say it.
Hi there, I know this subject is controversial and unclear but as a paramedic with QAS I find it disturbing that we are expected and advised to place a consenting patient on an EEA . My opinion and my interpretation of the Mental Health Act is that 1. This is totally unnecessary regardless of presenting situation 2. It is Unethical and actually breaches that persons rights. 3. Misinterprets both the Mental Health Act 2016 and the Public Service Act 2005 which I believe is referring to a person refusing treatment/transport or lacking capacity. If a person calls and states that they are for eg suicidal and request transport and treatment, in my mind there is no need to place them under an EEA order. The moment we do that a voluntary patient is involuntary (mental health act 2016 part 3 s 11) I also think that by doing so we are leaving ourselves wide open for legal repercussions. Many paramedics believe the criteria for an EEA is broad and offers protection for this type of action whereas I think the opposite!!! To meet the criteria of placing a person on an EEA order paramedics must be able to show – the person was at immediate risk of harm. The definition of immediate is instant or right now, In my mind that immediate risk no longer exists with the person calling us and willingly coming into our care. There are still obvious risks but they are no longer immediate. Also the second element of that paragraph “serious harm” would have to be met and while suicide is definitely serious and harm there are other cases that do not present with the risk of serious harm.
The other factors that need to be present are – the risk appears to be the result of a major disturbance in the person’s mental capacity. So the paramedic would have to prove “ major disturbance” emphasis on major as in serious and significant
. The word major is pretty important in this I think. And of course there is “mental capacity” which can be defined as decision making ability. If a person is still competent to make sound decisions we really don’t have the right to exercise the power we seem to think we have. There are four or five VERY specific elements stipulated in the Public Health Act 2005 that need to be met before a paramedic is supposed to put a patient on anEEA. I think also the information needs to be considered with the information in the mental health act 2016 to be understood properly.