Today’s question comes from a colleague who queries the advice given by Queensland Ambulance to paramedics regarding an emergency examination authority – see QAS Clinical Practice Procedures: Behavioural disturbances/Emergency Examination Authority (October, 2017). My colleague says:

Were you aware of this from Queensland Ambulance? They are basically saying that if a person is suicidal then they can be detained and transported by paramedics and apparently the “patient’s consent is not relevant”!

I think they have phrased this really badly and really mean that this would apply if the patient cannot give consent…

The law (dealing with EEAs) does not affect the operation of the law with respect to a person’s right to make decisions regarding medical treatment. EEAs do not apply in circumstances where a person of sound mind makes a voluntary decision to refuse medical treatment, even if that decision may result in the person suffering preventable harm.

And just adds confusion at the bottom by saying,

The law (dealing with EEAs) does not affect the operation of section 63 of the Guardianship and Administration Act 2000 in relation to the provision of urgent treatment to an adult with impaired decision-making capacity. EEAs are not required in circumstance were a person with impaired decision-making capacity is in need of urgent treatment to avoid imminent risk to the person’s life, health or safety.

As far as I can tell this section alone would make EEAs irrelevant.

I have previously written about EEAs (see Paramedics and the mentally ill – Queensland – An update (October 14, 2019) and I think that addresses many of the issues raised.

It is important to note that the EEA comes from the Public Health Act 2005 (Qld), not the Mental Health Act 2016 (Qld). The Public Health Act is dealing with people with a ‘major disturbance in mental capacity’ (See Chapter 4A) and prima facie that is not the same as a mental illness. If it was, they would use the same term. What is meant by ‘a ‘major disturbance in mental capacity’ is not, however defined.

Section 157B deals with the power of ambulance officers and police to detain and transport a person. Section 157B(1) says:

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.

Subsection 157B(3) says that if the criteria in s 157B(1) are met, then:

The ambulance officer … may detain the person and transport the person to a treatment or care place.

I agree that there is an inconsistency in the QAS document. It says:

Patient consent is not relevant. Irrespective of whether the patient consents or does not consent, if the EEA criteria is met, the EEA is to be applied and the patient transported.

Later it says:

The law dealing with EEAs does not affect the operation of the law with respect to a person’s right to make decisions regarding medical treatment. EEAs do not apply in circumstances where a person of sound mind makes a voluntary decision to refuse medical treatment, even if that decision may result in the person suffering preventable harm.

Those propositions are mutually exclusive. If a person who suffers from ‘a major disturbance in the person’s mental capacity’ is not of ‘sound mind’ then an EEA is not required. Treatment can be given to a person who is incapable of consenting where that treatment is reasonable and in their best interests (see The doctrine of necessity – Explained (January 31, 2017); see also Guardianship and Administration Act 2000 (Qld) s 63 referred to in the QAS document and discussed in the post QAS asked to ‘return’ patients (March 30, 2020)).

If an EEA is to have any value it must apply when a person remains competent even thought they have ‘a major disturbance in the person’s mental capacity’. If, if in those circumstances ‘patient consent is not relevant’ then an EEA does ‘affect the operation of the law with respect to a person’s right to make decisions regarding medical treatment’. In short an EEA is only required if a person can consent but suffers from ‘a major disturbance in the person’s mental capacity’. The presence of such a disturbance, like a diagnosed mental illness, is not however determinative of whether or not the person retains capacity. If they do not have capacity treatment can be given without an EEA. If they do have capacity an EEA can only work if it does ‘affect the operation of the law with respect to a person’s right to make decisions regarding medical treatment’.

It is my view that the law on EEAs does affect the operation of the law with respect to a person’s right to make decisions and that is made clear by the use of the word ‘detain’ in ss 157B, 157E and 157L. Further once the paramedics issue an EEA a person may be examined ‘without the consent of the person or anyone else’ (s 157O). That is only relevant if they have the capacity to consent.

My personal concern with the document is the example given where it says ‘An example of a disturbance in mental capacity is ‘person threatening to commit suicide’.

When you compare the Act to the QAS guidance there is an immediate problem. The QAS document says (emphasis in original):

To detain and transport a person under an EEA, paramedics must form the belief that the following criteria are met

i) the person’s behaviour, including, including the way in which the person is communicating, indicates the person is at immediate risk of serious harm; and

ii)       the risk appears to be the result of a a major disturbance in the person’s mental capacity (whether caused by illness, disability, injury, intoxication or another reason); and

iii)        the person appears to require urgent examination, or treatment and care, for the disturbance.

An example of a disturbance mental capacity is ‘person is threatening to commit suicide’.

What QAS have written is simply not consistent with the Act. The example given in the Public Health Act s 157B of ‘a person is threatening to commit suicide’ is an example of something that may indicate that the person is at immediate risk of serious harm. That is, in the Act the example appears after criterion (a) not criterion (b).

A paramedic has to be satisfied that (a), (b) and (c) are all met. The Act says that the threat of suicide is relevant to (a); the QAS document, incorrectly, says that is relevant to (b). The QAS document is clearly wrong.

Although dealing with mental health legislation, not public health legislation, the High Court, in Stuart v Kirkland-Veenstra [2009] HCA 15, had this to say about the link between suicide and mental illness:

  • ‘While attempted suicide may be indicative of mental illness, it is not necessarily so’ ([5], French CJ);
  • ‘Section 10 [of the Mental Health Act 1986 (Vic); now repealed] does not assume a necessary linkage between mental illness and attempted suicide. This accords with the long-standing resistance of the common law to the proposition that such a connection necessarily exists…’ ([44], French CJ);
  • ‘… the construction of s 10, which would not treat attempted suicide as necessarily reflecting mental illness, is consistent with the long-standing caution of the common law about that proposition. Given the complexity and variety of factors which may lead to suicidal behaviour, it would be a bold legislative step indeed to sweep it all under the rubric of mental illness, however widely defined’ ([46], French CJ);
  • ‘As is apparent from the structure of s 10, and consistently with the common law history discussed earlier, the fact that a person has attempted suicide or prepared to attempt suicide is not of itself sufficient to support an inference that the person is mentally ill’ ([54], French CJ);
  • ‘The fact that a person has decided to commit suicide may indicate deep unhappiness or despair. It does not mean that the person is mentally ill within the meaning of s 8(1A). Mr Veenstra’s rational and cooperative responses observed by the officers supported their opinion [that he was not mentally ill]’ ([58], French CJ);
  • ‘Section 10 [of the Mental Health Act 1986 (Vic); now repealed] does not reveal any legislative view that to attempt suicide is to be mentally ill. Nor, as explained below, has that been the unqualified position of the common law’ ([91], Gummow, Hayne and Heydon JJ);
  • ‘It is nonetheless important to acknowledge that suicide is often associated with disturbance of “the balance of the mind” or with being of “unsound mind”. This was not always so.

Bracton, writing in the 13th century, recognised the complexity of suicide. Bracton contrasted the case of “a man [who] slays himself in weariness of life or because he is unwilling to endure further bodily pain” from one who “lays violent hands upon himself without justification, through anger and ill-will, as where wishing to injure another but unable to accomplish his intention he kills himself”. The former might have “a successor, but his movable goods are confiscated. He does not lose his inheritance, only his movable goods”. On the other hand, the latter “is to be punished and shall have no successor”. But by the 16th century distinctions of this kind were lost in the general condemnation of suicide as “an offence against nature, against God, and against the King. Against nature, because it is contrary to the rules of self-preservation … Against God, in that it is a breach of His commandment, thou shalt not kill … Against the King in that hereby he has lost a subject, and … he being the head [of the body politic] has lost one of his mystical members.” And of these three causes for condemnation, it was the religious that may be seen as having had chief influence on the later development of the law.

A suicide was buried at night, at a crossroads, and the corpse was defiled. The last recorded instance of this being done in England was in 1823. In Victoria, the Coroners Act 1896, in a provision drawing upon English statutory sources, provided that upon a coroner’s finding of a verdict of suicide (felo de se) it was not necessary that the interment of the body “take place between the hours of nine and twelve at night” and that the coroner could not forbid the performance of any of the rites of Christian burial.

The performance of the rites of Christian burial was not authorised on the interment of the remains of a person who had committed suicide, unless, significantly, the deceased was shown to have been non compos mentis at the time. During the 20th century, perhaps even earlier, coroners or juries would often add to a verdict that the deceased had killed himself or herself, words to the effect “whilst of unsound mind” or “whilst the balance of [his or her] mind was disturbed”. Riders to this effect were added even where there was no medical evidence to support the conclusion.

In these circumstances, the association that may have developed in the past between suicide and mental illness provides no certain foundation for a conclusion that a person threatening suicide will in every case lack the capacity to decide what to do. That is, the historical association between suicide and mental illness provides no sufficient basis upon which to impose a duty of care which denies the personal autonomy of the person to whom it is owed. And the provisions of the Mental Health Act not only do not provide such a basis, they reinforce the need to give effect to personal autonomy.

Contrary to the inference drawn by the majority in the Court of Appeal in this case, the premise for the provisions that now appear in s 10 of the Mental Health Act is that a person threatening suicide may or may not be suffering mental illness…’ ([93]-[98], Gummow, Hayne and Heydon JJ (emphasis added));

  • ‘Depending on the circumstances, a person who has attempted, or is likely to attempt, suicide may or may not satisfy the criteria of mental illness in s 8. The majority [in the Court of Appeal] were not correct to hold that s 10 is to be read as equating a person who has attempted or may attempt suicide with a person who is mentally ill…’ ([147], Crennan and Kieffel JJ);

Again I note that they were dealing with the definition of ‘mental illness’ in the Victorian Mental Health Act (as it then was) not the question of a ‘a major disturbance in the person’s mental capacity’ as required by Queensland’s Public Health Act, but even so the discussion is informative. Given that what constitutes ‘a major disturbance in the person’s mental capacity’ is not defined, one would have to consider the case law and plain English language meaning of those words. As with mental illness if ‘the association that may have developed in the past between suicide and mental illness provides no certain foundation for a conclusion that a person threatening suicide will in every case lack the capacity to decide what to do’ it must follow that the threat of suicide does not demonstrate an impaired capacity. The person may be quite rational, orientated as to place and time and have sound reasons for choosing to end their own life perhaps due to “weariness of life or because he is unwilling to endure further bodily pain”.

Again as noted in Kirkland-Veenstra, suicide is no longer a crime (see [45] and [77]). People can refuse treatment in the sure and certain knowledge they will die and some would equate that as suicide.  Whatever perspective one has, for some suicide may be a rational response to their world view and position and therefore not evidence of a ‘major disturbance in the person’s mental capacity’.

Conclusion

As I noted it my earlier post, it may be the case that a person remains competent to make medical decisions but still has ‘a major disturbance in the person’s mental capacity’. In that case treatment can be given without their consent but, as I noted in that post

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.

It may be that if you have capacity, you do not have ‘a major disturbance in the person’s mental capacity’ but if that were the case, there is no need for EEAs. I agree that the QAS have phrased their Clinical Practice Procedure ‘really badly’. By saying that consent is irrelevant but the EEA does not affect the law of consent they are making two mutually inconsistent statements.

Further, the QAS document says ‘An example of a disturbance mental capacity is ‘person is threatening to commit suicide’ but that is not true. The QAS document misquotes the Act. The Act gives the example of suicide as an example that the person is ‘at immediate risk of serious harm’ (criterion (a)), not that they have ‘a major disturbance in the person’s mental capacity’ (criterion (b)). An intention to commit suicide may be evidence of ‘a major disturbance in the person’s mental capacity’ but it will not, on its own, be sufficient to justify action under the Public Health Act.