Today’s correspondent works
… for a Patient Transport company in NSW and it’s been unclear where we stand in transporting involuntary mental health patients without an escort provided by the sending facility. I just want to know what the legal side of maintaining a schedule is and how that relates to patient transport.
I’m assuming the person is being sent from a mental health facility, has been examined by a medical practitioner and who involuntary detention and treatment has been authorised in accordance with the Mental Health Act 2007 (NSW) Chapter 3. I assume that the person is being ‘transferred from the mental health facility to another mental health facility or another health facility’ (Mental Health Act 2007 (NSW) s 80).
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.
(4) A person authorised by this Act to take a person to or from a mental health facility or other health facility may carry out a frisk search or an ordinary search of the person, if the person reasonably suspects that the other person is carrying anything:
(a) that would present a danger to the person or any other person, or
(b) that could be used to assist the other person to escape from the person’s custody.
(5) The person may seize and detain a thing found in a search if it is a thing of a kind referred to in subsection (4) (a) or (b).
(6) In this section:
“frisk search” means:
(a) a search of a person conducted by quickly running the hands over the person’s outer clothing or by passing an electronic metal detection device over or in close proximity to the person’s outer clothing, or
(b) an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person, including an examination conducted by passing an electronic metal detection device over or in close proximity to that thing.
“ordinary search” means a search of a person or of articles in the possession of the person that may include:
(a) requiring the person to remove only his or her overcoat, coat or jacket or similar article of clothing and any gloves, shoes, socks and hat, and
(b) an examination of those items.
The regulations expand the list of people authorised to transport a patient under s 81(1) to include ‘a person who provides a transport service approved by the Secretary for the purposes of that section is prescribed’ (Mental Health Regulation 2019 (NSW) r 45).
Conclusion
If my correspondent works for the NSW Health operated Patient Transport Service then he or she will be (I infer) ‘a member of staff of the NSW Health Service’ (s 81(1)(a)) and has all the authority required to transport the patient. If they work for a private provider then they have authority if their employer has been ‘approved by the Secretary for the purposes of’ s 81.
Australian Emergency Law 
I received this comment via email: “Question regarding your article today and the NEPT mental health involuntary pt. I work for NSW health patient transport services as an Rn.
The service is currently looking at removing security escort for involuntary patients.
Where do I stand if the pt absconds from my car? What is the WHS obligations of my PTO or myself are assaulted?’
Everyone’s obligation is to act reasonably in the circumstances. If the patient wants to abscond and you can reasonably and safely stop them, do so but if you cannot, let them go and call for help – don’t kill them – see Inquest into the death of Mr Robert Plasto-Lehner [2009] NTMC 014 (10 June 2009).
The PTOs obligation is to take reasonable steps to ensure the workplace is safe. Your obligation is to make sure by your actions you don’t expose people to risk. That doesn’t mean risking your own life and may mean letting someone go rather than causing injury to restrain them.
Like everything, it’s all about risk assessment. Not every involuntary patient is at risk of absconding but that needs to be assessed in each case. A security escort has no more power than you – the power to use ‘reasonable force’ (s 81).