Today’s correspondent:

… thought this might be an interesting topic for your blog. I have recently seen a NSW Police Inspector write the following in relation to Section 22 of the Mental Health Act “a police officer must have a belief that it is ‘probable’ that a person will attempt to kill himself or herself. The Act is silent on a definition of ‘probable.’ I thus take guidance on the definition of probable contained within the Oxford Dictionary online – ‘likely to happen or be the case.’ The same reference point defines ‘likely’ as ‘such as well might happen or be true.”

It is true that s 22 requires a police officer to believe that the relevant outcome is ‘probable’. Section 22 says:

(1)        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.

(2)        A police officer may apprehend a person under this section without a warrant and may exercise any powers conferred by section 81 on a person who is authorised under that section to take a person to a mental health facility or another health facility.

Compare that to s 20 that says:

(1)        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.

(2)        An ambulance officer may request police assistance if of the opinion that there are serious concerns relating to the safety of the person or other persons if the person is taken to a mental health facility without the assistance of a police officer.

I appreciate that I am ‘flogging a dead horse’ when I make the argument that s 20 does not allow a paramedic to detain a person who is mentally ill, but competent, and to impose treatment against the patient’s wishes. I make that argument because s 20 does not say paramedics can apprehend a patient nor does it (as s 22 does) that they can exercise the powers under s 81.  I make the point here to say I’m still not convinced but as I noted in an earlier post (Accepting that involuntary treatment is an option under s 20 of the Mental Health Act 2007 (NSW) (November 25, 2020)) lawyers who practice in the field do accept and think that a court would accept s 20 allows involuntary treatment, even though it doesn’t say that.   Having made the point again, I will take it no further.

Let us compare s 20 and s 22.

Section 22
(Police Officers)		 Section 20 (Ambulance Officers) Commentary
What they have to believe That:

The person appears to be mentally ill or

The person appears to be mentally disturbed

And

the person is committing or
has recently committed an offence or

the person has recently attempted to kill himself or herself or

it is probable that the person will attempt to kill himself or herself or

it is probable that the person will attempt to kill any other person or

it is probable that the person will attempt to cause serious physical harm to himself or herself or

it is probable that the person will attempt to cause serious physical harm to any other person

and

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.

 That:

The person appears to be mentally ill or

The person appears to be mentally disturbed

and

it would be beneficial to the person’s welfare to be dealt with in accordance with this Act.

 The circumstances in which police can act are much more limited than ambulance officers. Police have to look at traditional policing roles, law enforcement, protection of others and protection of the person in circumstances of urgency.

Ambulance officers are required to consider the patient’s best interests alone.
Grounds for that belief The belief that the person appears to be mentally ill or mentally disturbed does not have to be based on reasonable grounds. The belief that they have committed an offence or are a threat to themself or others does need to be based on reasonable grounds. Ambulance officers must have reasonable grounds for their belief that the person appears to be mentally ill or mentally disturbed and that action is required under s 20. Where a belief has to be held on reasonable grounds it is a mixed standard – it is a subjective test in that the officer must actually hold the belief. But the grounds upon which they form that belief has to meet an ‘objective’ standard that is would be judged by others as reasonable.

In State of New South Wales v Talovic [2014] NSWCA 333 Emmett JA said this of the difference between ss 20 and 22 and the fact that an ambulance officer must hold the belief that the person appears to be mentally ill or mentally disturbed on reasonable grounds, but a police officer does not:

“…that an ambulance officer, who necessarily has some medical training, is more equipped to make reasoned decisions in relation to mental health issues than someone (such as a police officer) with no such training. Having regard also to the practical realities of the execution of police officers’ functions, it is likely that the legislature intended that police officers should not need to meet the same standard as ambulance officers when forming a view as to whether a person appears to be mentally ill or mentally disturbed.” (See NSW Police, paramedics and the mentally ill (May 15, 2018)).

In one sense police have more limited options under the Act as the circumstances in which they can act under s 22 are limited, but they can act on their honest belief that the person is mentally ill or mentally disturbed. They don’t have to have a clinical basis for that conclusion as ambulance officers must. Ambulance officers are not so restrained in the circumstances in which they can rely on the section but their belief that the patient appears to be mentally ill or mentally disturbed must be based on ‘reasonable grounds’.  They have to be able to point to their observations, the patient’s history etc (all the normal things paramedics rely on when making a diagnosis) to justify why they came to the conclusion that the patient appeared to be mentally ill or mentally disturbed.

That now gets me to the specific question of what does ‘probable’ mean. My correspondent was correct, given that it’s not defined in the Act one would normally start with an English language dictionary. I can also look to some law. In R v Crabbe [1985] HCA 22 the High Court of Australia that in order to be guilty of murder in the Northern Territory, the accused had to realise that the probable, not merely possible consequences of his actions would be the death of, or infliction of grievous bodily harm, upon someone. Gibbs CJ along with Wilson, Brennan, Deane and Dawson JJ said (at [8]-[9] emphasis added):

If an accused knows when he does an act that death or grievous bodily harm is a probable consequence, he does the act expecting that death or grievous bodily harm will be the likely result, for the word “probable” means likely to happen…

It is not enough that he does the act knowing that it is possible but not likely that death or grievous bodily harm might result.

Probable means ‘more likely than not’ Erich v R (1980) 31 ALR 123. The Concise Australian Legal Dictionary (Lexis/Nexis, 6th ed, 2020) defines ‘probability’ rather than probable. Relevantly it says (p. 527) “‘Probability’ is distinguished from possibility in that it might be ‘possible’ for an event to happen without the event being probable”.

In State of New South Wales v Talovic [2014] NSWCA 333 Basten JA had to consider what was meant by probable in s 22. He said:

On one approach, arguably protective of the liberty of the individual, a police officer should not intervene unless there are reasonable grounds to believe it is more probable than not that the person will attempt to kill himself or cause himself serious harm. That approach would also, presumably, require that prevention informs the purpose of the power and hence requires that the attempt be foreseen within a reasonably short period.

The alternative approach is to impose a lower requirement, namely some reasonable degree of probability but not necessarily a prediction that the attempt is more probable than not. There are two reasons to adopt the latter approach. First, the assessment is to be made by a police officer: even a psychiatrist might be hard pressed to say whether a stranger, encountered in a non-professional setting for the first time, was more likely than not to attempt suicide in the near future. To expect a police officer to form such a view would be tantamount to conferring an unusable power. Secondly, the purpose of the apprehension is to transport the person to a health facility where the person will be promptly assessed by professionals in a professional environment.

That is his honour did not think the definition of probable, as set out in Crabbe, was the appropriate test here.  Tobias AJA did not agree, he said (at [185]-[187]):

… in my view Constable Manoukian’s evidence as to the nature of his belief, accepting for present purposes that it was genuine, was not that it was probable that Mr Talovic “will attempt to kill himself” or would attempt to kill himself if he was not apprehended, but that there was only a risk that he could do so, or that he may or might do so, or that it was possible that he may do so… I regard it as insufficient that his stated belief went no higher than a threat that Mr Talovic “may”, “could” or “might” attempt to kill himself or that such an attempt was “possible” when the statute mandated a belief that he “would” attempt do so.

In my view the overall impression one obtains from the evidence of Constable Manoukian that I have recorded above is that the belief that he held did not rise above one whereby it was possible, and maybe probable, that Mr Talovic may or might attempt to kill himself if he was not apprehended or that at least there was a risk that he may do so. In my view such a belief fails to accord with the clear requirements of s 22(1)(a).

Although I accept that the purpose of the Act is intended to be beneficial to the individual (as Basten JA notes in his reasons at [3] which I have also had the benefit of reading in draft), nevertheless I see no reason to give the plain words of the statute a more liberal construction simply for that reason. The fact is that the Act involves an abrogation or curtailment of the fundamental freedom of a citizen not to be apprehended by police unless they are suspected of committing a crime: see Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 437. There is no ambiguity in the words of the text and in my view they should not be departed from. The various terms and expressions used by Constable Manoukian in his evidence both in examination and cross-examination, although at times a little confusing, nevertheless in my view did not constitute a belief in the terms required by the statutory text.

Emmett JA, along with Basten JA upheld the State’s appeal against a finding that there had been an unlawful detention. Emmett JA did not address what ‘probable’ in s 22 means finding that the police officers were not ‘given the opportunity of dealing with’ the suggestion that they did not hold the necessary belief so the trial judge’s finding that they did not believe that it was probable that Mr Talovic would take his own life had to be set aside and the appeal allowed.

This case did not determine whether or not the constable held the relevant belief.  The trial judge had said that the police officer had to believe it was more likely than not that Mr Talovic would take his own life but Basten JA thought that was the wrong test. Emmett JA thought the challenge was not fairly put to the police during their evidence so both those judges upheld the appeal but they did not decide the matter. It went back to the District Court for another judge to determine.  There does not appear to have been a subsequent decision so presumably the case then settled.  What we don’t know is whether a trial judge would have found that the belief held by police met the less restrictive test posed by Basten JA.

What follows is that Tobias AJA thinks ‘probable’ (in s 22) means ‘more likely than not’, that the person subject to apprehension would or will take action if not detained.  Basten JA, taken into account the protective nature of the Act, thinks that the word means ‘some reasonable degree of probability but not necessarily a prediction that the attempt is more probable than not’.  We don’t know whether the police in this case met that lower standard as Basten and Emmett JJA didn’t decide that the apprehension was lawful, rather they decided there needed to be a new trial.  How a judge would have dealt with teh difference of opinion between Basten JA and Tobias AJA we don’t know. We won’t get a definitive statement of what ‘probable’ in s 22 means until there is another case and another appeal to the Court of Appeal or perhaps the High Court of Australia.

Conclusion

This post has digressed somewhat but to return to my correspondent’s question as to what ‘probable’ means in the Mental Health Act 2007 (NSW) s 22.  My correspondent said:

The Act is silent on a definition of ‘probable.’ I thus take guidance on the definition of probable contained within the Oxford Dictionary online – ‘likely to happen or be the case.’ The same reference point defines ‘likely’ as ‘such as well might happen or be true.”

That probable means ‘more likely than not’, more than merely possible is consistent with the case law such as R v Crabbe.  With respect to s 22 Tobias AJA would apply a similar test. Basten JA would not be so strict given the protective nature of s 22 requiring ‘some reasonable degree of probability but not necessarily a prediction that the attempt is more probable than not’.  Either view requires more than a mere possibility, as it is ‘possible’ that anyone we meet at any time may go home and take their own life. It has to be more than ‘possible’ but whether it gets to ‘more likely than not’ or just ‘some reasonable degree of probability’ or concern or fear we won’t know unless and until there is another appeal.