Today’s correspondent is
… an ambulance paramedic with ACTAS and I was having some robust discussion regarding Emergency Apprehension with my colleagues. What are legalities surrounding an ACTAS crew being sent across the border into NSW eg Queanbeyan to assess a patient with a mental illness/disorder and ‘thoughts of self harm’? I was of the opinion that legislation applied where the patient is currently located and not their current residential address eg ACT resident at Royal Hotel. As registered paramedics from the ACT, I believe we have no legislative powers to apprehend those patients located in NSW who meet criteria for apprehension under ACT legislation. Are we able to apply NSW legislation as RPs? Would appreciate clarification for both myself and my colleagues. Thanks for your informative blog
I have previously answered a similar question with respect to NSW Ambulance officers in the ACT (see Transporting the mentally ill from NSW to the ACT (July 18, 2018))n though that was about transporting a patient not detaining them.
As a general rule, legislature can only enact law that applies in their jurisdiction but there has to be some extraterritorial application. For example, when NSW paramedics drive into the ACT, they are still employed by NSW Health and the various standards under which NSW vehicles are registered continue to apply to those vehicles. So, whilst it’s true that generally speaking the law of the ACT only applies in the ACT; and the law of NSW only applies in NSW it is not universally true.
The law
The Mental Health Act 2015 (ACT) s 80 says:
A police officer or authorised ambulance paramedic may apprehend a person and take the person to an approved mental health facility if the police officer or paramedic believes on reasonable grounds that—
(a) the person has a mental disorder or mental illness; and
(b) the person has attempted or is likely to attempt—
(i) suicide; or
(ii) to inflict serious harm on the person or another person.
The Mental Health Act 2007 (NSW) s 20(1) says:
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.
Section 22(1) says:
A police officer who, in any place, finds a person who appears to be mentally ill or mentally disturbed may apprehend the person and take the person to a declared mental health facility if the officer believes on reasonable grounds that–
(a) the person is committing or has recently committed an offence or that the person 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, and
(b) it would be beneficial to the person’s welfare to be dealt with in accordance with this Act, rather than otherwise in accordance with law.
I won’t revisit why I think NSW paramedics don’t have the power to detain (see Detention or apprehension under mental health legislation (August 27, 2020)). It is my opinion that ACT paramedics do have that authority do detain in s 80; and I will assume, for the sake of the argument, that s 20 does imply an authority to detain.
The question then is ‘can an ACT paramedic drive into NSW as part of the inter-jurisdiction cooperation that exists and detain a person under the Mental Health Act 2007 (NSW) s 20, or the Mental Health Act 2015 (ACT) s 80?’
To act under s 80 of the ACT Act a person must be an ‘authorised paramedic’. An authorised paramedic is (s 2 and Dictionary):
… a member of the ambulance service—
(a) employed as a paramedic; and
(b) authorised by the chief officer (ambulance service) to apprehend people with a mental disorder or mental illness.
The Legislation Act 2001 (ACT) tells us that the term ‘”ambulance service” when used in ACT legislation ‘means the ACT Ambulance Service established under the Emergencies Act 2004’. It follows too that a NSW paramedic is not an ‘authorised paramedic’.
However, to complicate matters, the Emergencies Act 2004 (ACT) s 64 says:
(1) This section applies if an interstate or overseas emergency service responds to an emergency or incident in the ACT.
(2) A member of the interstate or overseas emergency service has the functions of the chief officer of an emergency service in relation to the emergency or incident if—
(a) the member has charge of other members of the interstate or overseas emergency service; and
(b) no-one else present is, under this Act, in charge of the operations at the emergency or incident.
If there is an emergency and NSW Ambulance are asked to respond into the ACT because ACTAS cannot get there, then NSW Ambulance will be an ‘interstate emergency service’ (given that ambulance services in the ACT are part of the emergency services). Without looking at in detail I think it would be uncontroversial that they can act as an ambulance officer but query whether that would extend to acting as an ‘authorised paramedic’ but let us assume that it would. If nothing else if they have all the functions of the chief officer, they could presumably authorise themselves. I will assume (though it is not clear) that regardless of the definition of ‘authorised paramedic’, by virtue of s 64 a NSW paramedic in the ACT can act under s 80 of the ACT legislation.
To act under s 20 of the NSW Act, a person must be an ‘ambulance officer’. An ambulance officer is defined as ‘a member of staff of the NSW Health Service who is authorised by the Secretary to exercise functions of an ambulance officer under this Act’. An ACTAS paramedic is not employed by NSW Health so they are not, and cannot be, an ‘ambulance officer’ for the purposes of the NSW Act. There is no equivalent to s 64(2) in the Health Services Act 1997 (NSW) ie the legislation governing NSW Ambulance. It follows that prima facie then an ACT paramedic in NSW cannot exercise the powers under s 20 of the NSW Act; they can only act if they carry s 80 of the ACT legislation with them.
Chapter 8 of the NSW Act, and chapter 15 of the ACT legislation, provide for the application of interstate laws and for making agreements between the jurisdictions. There is an agreement between NSW and the ACT – the Mental Health (Treatment and Care) (Interstate Application of Mental Health Laws) Agreement 2003. Although the agreement pre-dates both the NSW and the ACT legislation, it is still on the ACT legislation website as an ‘in force’ agreement. The NSW Act provides that actions taken under previous legislation is taken to have been done under the current Act so that would have the effect of ensuring that an in force agreement made under an pre-2007 Act remains in force so this 2003 agreement is deemed to be an agreement under the 2007 Act.
If the 2003 agreement is in force it is complicated as it refers to the Mental Health (Treatment and Care) Act 1994 (ACT) and the Mental Health Act 1990 (NSW); now both repealed.
The agreement between NSW and ACT is intended to facilitate the operation of the laws in each state and to facilitate patient transfer. The agreement is made
… for or with respect to:
(i) involuntary admission of interstate persons to facilities in NSW and ACT;
(ii) the transfer of interstate persons between facilities in NSW and ACT;
(iii) the apprehension of interstate persons who abscond from the ACT to NSW and from NSW to the ACT;
(iv) the recognition of community treatment orders made under the NSW Act for the care and treatment of interstate persons; and
(v) the recognition of psychiatric treatment orders made under the ACT Act for the community treatment and care of interstate persons.
Clause 5.2 of the agreement says:
The parties agree:
(a) … a person apprehended by a NSW Police Officer in accordance with section 24 of the NSW Act may be admitted to and detained in an approved [ACT] facility; and
(b) a person apprehended under section 37 of the [Mental Health (Treatment and Care) Act 1994 (ACT)] may be admitted to and detained in a gazetted mental health service in NSW.
Clause 5.4 says
A person who may be taken to a hospital by a NSW Police Officer under sections 22 or 24 of the NSW Act, may be taken to and detained at an approved facility in the ACT by a NSW Police Officer.
Neither the Mental Health (Treatment and Care) Act 1994 (ACT) nor the Mental Health Act 1990 (NSW) provided for apprehension or detention by ambulance officers or paramedics. Section 24 of the old NSW Act equates to the current s 22. Section 37 of the old ACT legislation equates to s 80 though s 80 has added paramedics to police as people authorised to apprehend a mentally ill person.
Assuming that via the transitional provisions these references should be read to ss 20 and 22 of the current NSW legislation and s 80 of the current ACT legislation then it would say that a NSW ambulance officer or police officer can detain a person in NSW and take them to the ACT; or an ACT police officer or paramedic can detain a person in the ACT and take them to NSW. But the agreement does not say, and did not say, that a police officer (and by extension to modern times an ambulance officer) from NSW could detain a person in the ACT based on the NSW Act; or that an ACT police officer in NSW could rely on their ACT powers to detain a person.
If that’s true then I’m at a position where an ACT ambulance officer in NSW cannot detain a mentally ill or disordered person under s 20 of the NSW Act as he or she is not an ‘ambulance officer’ as defined in the Mental Health Act 2007 (NSW), nor can they rely on s 37 of the ACT Act as they are not in the ACT. A NSW ambulance officer on the other hand could, by virtue of the Emergencies Act 2004 (ACT) s 64 act as if they were an authorised paramedic under the Mental Health Act 2015 (ACT), but could not rely on s 20 of the NSW Act as it prima facie only applies in NSW. But that adds to a complexity in that it would require NSW paramedics to get some training in ACT law.
An alternative
An alternative is to consider that paramedics carry their powers with them. Section 80 of the ACT legislation refers to an ‘authorised ambulance paramedic’ and that is authorised by the ACT’s Chief Officer – Ambulance. The NSW Act talks of ‘An ambulance officer who provides ambulance services …’ A NSW paramedic who is dispatched into the ACT is continuing to provide ambulance services.
In either case the paramedics are going to travel interstate but they still carry their own equipment (subject to the discussion that’s been had before about carrying drugs (see Carrying scheduled drugs between NSW and the ACT (December 19, 2018) and Paramedic practice in NSW and Victoria (September 14, 2017) but regardless of any conclusion I draw, paramedics do carry their drug boxes across state borders) and work to the protocols and procedures set by the ambulance service. In inter-state agreements they are asked by the requesting state to come and provide their services – to work – in the hosting state; so if NSW asks ACTAS for assistance to respond to an emergency in Queanbeyan they are asking ACTAS to provide their ambulance services in that jurisdiction, not to come and be part of NSWAS.
If that is right then I think the conclusion (though not without difficulties) is that when travelling interstate ACTAS paramedics carry s 80 with them and vice versa for NSWAS officers. (That analysis could also be applied to confirm that they can carry schedule drugs when responding interstate, but would not help other ambulance providers who were the subject of the discussion in the posts referred to above).
Conclusion
Although the answer is not clear and involves asking the question ‘what do I think a court would do to find a pragmatic solution?’ I think the answer is that when requested by the other state – so if NSW Ambulance asks ACTAS to respond into NSW or vice versa, the paramedics carry their legislation with them and can act in accordance with the powers given in the legislation that empowers their ambulance practice.
Of course the issue would be so much clearer if the legislation gave relevant power to ‘paramedics’ and now that paramedics are nationally registered, a paramedic in NSW is also a paramedic in the ACT! Or update the agreement to reflect the current law.
For another post on interstate application of mental health laws see Interstate paramedics treating the mentally ill (August 19, 2019).
Australian Emergency Law 
It gets even murkier when you consider NSW residents constrained under the NSW act are transported to Goulburn and no ACTAS crew will be driving to Goulburn as part of their assistance to ASNSW. In short ACTAS doesn’t attend mental health cases in NSW.
The question may have been theoretical but the scenario was ACTAS being asked to respond to an emergency call in Queanbeyan – and I inferred that would be because NSWAS were unavailable – and there determining that the patient met the criteria for detention under s 80. My view is that they could be detained and taken to Queanbeyan or even Canberra hospital with the paramedics relying on s 80 of the ACT legislation even though they are in NSW.
If it’s a transfer, eg they have been detained under NSW law but need to be transferred from Goulburn (or anywhere else in NSW) to the ACT then the agreement does deal with that and would allow ACTAS to go and get them; or NSWAS to drive them into the ACT.
There are a number of agreements between NSW and other states concerning the transfer of mental health patients, which can be found here: https://www.health.nsw.gov.au/legislation/Pages/agreements.aspx
Although the agreement between NSW and the ACT refers to the old Acts (1990 and 1994), the spirit of the agreement is that health authorities intended authorised officers to carry the law from their originating jurisdiction with them across the border (see parts 5.2 and 5.5 the NSW-ACT agreement for the transfer of civil patients). That is to say a NSW paramedic would apply the NSW law with respect to patients they attended in the ACT, and vice versa.
Sections 255 and 256 of the Mental Health Act 2015 (ACT) appear to authorize health professionals from the ACT to continue to use their powers interstate, but such extraterritorial operation relies on an agreement with NSW to that effect.
I understand there is an agreement between ACT Health and the Southern NSW Local Health District which governs the sharing of health and ambulance resources across state borders, however I have been unable to find a copy of this agreement published online. I suspect that this agreement may be the missing piece of the puzzle with respect to the involuntary detention of mental health patients across local borders…
Thanks Richard, that paramedics ‘carry the law from their originating jurisdiction with them across the border’ was my conclusion and I note that I do cite 5.2 and 5.4 (but not 5.5).