Section 20 of the Mental Health Act 2007 (NSW) has been the subject of many posts on this blog (see https://emergencylaw.wordpress.com/?s=s+20). The section 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.
In my view NSW Ambulance reads far too much into the section. Ambulance protocol A3 Informed Consent, Capacity and Competency says that consent is not required ‘When a decision is made to transport the patient under s 20 of the Mental Health Act 2007’. Protocol MH3 Enacting s 20 and s81 of the Mental Health Act 2007 says (emphasis in original):
1. If the attending paramedics have determined that the patient is mentally ill or mentally disordered and should be taken to hospital AND the PATIENT IS WILLING to be transported to hospital voluntarily there is no need to enact Section 20 (S20) of the Mental Health Act. If at any time the patient changes their mind and is no longer voluntarily agreeing to transport and paramedics believe the patient is mentally ill or mentally disordered, paramedics should enact S20 to transport the patient.
2. If the attending paramedics have determined that the patient is mentally ill or mentally disordered and should be taken to hospital AND the PATIENT IS UNWILLING to be transported to hospital voluntarily the paramedic can enact S20 of the Act and take the patient against their will. If this occurs, the patient is no longer being transported voluntarily, they have become an involuntary patient.
I do not read s 20 as allowing the action contemplated by Protocol A3 or MH3. Section 20 does not allow transport to hospital where a person is mentally ill or disordered but needs treatment for an unrelated injury. It allows transport to a mental health facility for treatment of their mental illness.
If a paramedic forms the view that the patient is ‘appears to be mentally ill or mentally disturbed’ and the paramedic takes the person to a mental health facility, with the patient’s consent, they are transporting the person in accordance with s 20. There is no concept of ‘enacting’ s 20. Section 20 says that a paramedic can take a mentally ill or disordered person to a mental health facility. If they do that s 20 is enlivened whether the patient is coming voluntarily or not. The critical impact of s 20 is that it allows the mental health facility to detain the person (see s 18) and that is true whether the person came with the paramedics or not.
As I explain in an earlier post (Mental Health Act 2007 (NSW) s 20 – a summary of my current thinking (October 7, 2019), on my reading the section says that if an ambulance officer holds the necessary views he or she can take a person to a mental health facility. It does not say that the person can be taken if they remain competent and refuse treatment any more than the authority to take a person with a broken leg to an emergency department allows paramedics to take them without consent. But as noted above this is not the view of NSW Ambulance as set out in protocol A3.
Because of this conflict I contacted two lawyers that practice in the area of mental health. They were both of the view that regardless of the words used in s 20, a court would probably interpret the section as allowing ambulance officers to detain and treat, without consent, patients who are mentally ill or mentally disordered.
In a recent article that appears in Response (a journal of the Australasian College of Paramedicine) Ruth Townsend and I discuss s 20 and report on the opinions of the mental health law experts (see Michael Eburn and Ruth Townsend ‘Treating mentally ill patients without consent’ (2020) 47 Response pp. 14-16). There we discuss the competing views, ie mine and those of the experts we consulted. On p. 16 we say:
Which view, that put by Eburn or these lawyers, is correct? There is no answer to that. Until a superior court, the New South Wales Court of Appeal or the High Court of Australia is asked to rule on the matter. Until then, these are ‘arguments’ and the lawyer’s prediction of how they think a court might resolve the matter if asked. There is no evidence that the courts are being asked so presumably people are not challenging decisions by ambulance officers to detain persons. (That could be for many reasons including that people, after treatment, may be grateful for the decisions that were made or that paramedics are making excellent clinical decisions. Exploring the experiences of people who have been detained by paramedics is beyond the scope of this short review but may be an area of fruitful research.) In the absence of case law on the matter, however, Eburn is willing to accept the opinions of those specialist in mental health law who bring their experience of how the Act is interpreted and applied in practice.
Our conclusion is:
In every Australian state and territory other than Western Australia, paramedics have statutory authority to deprive a person who meets the criteria under the relevant mental health or in Queensland, public health legislation and take them to a relevant mental health facility for definitive assessment and care.
In New South Wales that power is not clear because of ambiguity in the wording of the Act but accepting the view of lawyers expert in mental health law the authors accept that s 20 of the NSW Act is also likely to be interpreted to allow paramedics to treat a person who meets the criteria set out in s 20 even if that person is competent to and refuses consent to that care.
I should add that it remains my view that s 20 does not justify treatment without consent where ‘paramedics have determined that the patient is mentally ill or mentally disordered and should be taken to hospital’ for treatment of an injury or illness that is not a mental illness. If a person is refusing treatment of their broken leg, they do not need to be transported to a mental health facility, so s 20 is irrelevant.
It is also still my view that if a person voluntarily agrees to go with paramedics to a mental health facility there is not magic or formula to ‘enact’ s 20. Transporting the person to a mental health facility gives the facility the authority to detain the person (s 18) regardless of whether they came voluntarily or not.
The only change in my view is that if a person is mentally ill but retains competency, is refusing treatment for their mental illness, then s 20 allows paramedics to detain that person and take them to a place for definitive care of their mental illness.