Today’s question is again about the Mental Health Act 2007 (NSW) ss 20 and 22. My correspondent says:
I have the following question which affected not only members of the NSW Ambulance Service, but also members of the NSW Police Force, of which I am a member. The situation is as follows;
Members of the NSW Police Force attended the home of a person, who was believed to be having a Mental Health episode. The person did not meet the requirements ascribed within Section 22 of the Mental Health Act (NSW) and as such, Ambulance Officers were called to attend. NSW Ambulance Officers attended and exercised their authority under Section 20 of the Mental Health Act (NSW). The threshold necessary to exercise authority in accordance with Section 20 is lower than that required under Section 22, hence the request for Ambulance assistance.
Attending Ambulance Officers believed that Section 20 had been met and as a result, the person was subsequently conveyed from the scene (with a NSW Police Officer inside the Ambulance to ensure the safety of the Ambulance Officers), to the nearest hospital. At the hospital, an undertaking was given by the Hospital, that security officers for the Hospital would remain with the conveyed person, until they had been seen by a Registrar, in respect to their ailment. This was due to an extremely heavy workload suffered by Ambulance Officer this particular day. Once in the custody of Hospital Security, NSW Police also departed the scene.
At the hospital, Security initially attended and then departed for a short time. The patient was not restrained to the bed and as a consequence, they left their bed and ran from the hospital. When security returned, they notified the Registrar for Accident and Emergency. The Registrar in turn contacted the Ambulance with a view to having them return to the persons house and re-convey them from their residence to the hospital.
Ambulance Management were consulted and believed that their powers had been fully exercised when they conveyed the person (against their will) to the hospital and consequently left that person with the Security Officers. NSW Police were requested to return the person, but considering that the person previously didn’t meet the threshold for Section 22 and that nothing had significantly changed, Police could not exercise any power to return the person to hospital.
My question is, when is the power, vested in Section 20 and 22, fully exercised? Ordinarily, it would be when the patient has been tended to by a Doctor and a diagnosis made in respect to the patients mental affliction (either admitted to hospital or released because the affliction has abated). When this happens, the Hospital can issue an authority to return the person to hospital to continue treatment, however in this situation, the patient has left the hospital prior to examination by a Doctor?
The relevant sections are:
20 DETENTION ON INFORMATION OF AMBULANCE OFFICER
(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….
22 DETENTION AFTER APPREHENSION BY POLICE
(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.
Both sections have been the subject of many posts on this blog – see https://emergencylaw.wordpress.com/?s=mental+health+s+20
It seems to me the answer to this question is reasonably strait forward and there appears to be three possibilities.
1. Detention on the request of an authorised medical officer
Ambulance officers were satisfied that the criteria for s 20 applied and they took the patient to a hospital that I presume was also a ‘declared mental health facility’. The patient has been delivered to the care of that facility and that is their job done. The mental health facility may decide to detain the person (s 18). If the mental health facility has taken steps to detain the person and the person has left the facility, then an authorised medical officer can authorise a police officer to apprehend the person and bring them back.
2. Detention on a mental health certificate
If the patient had been examined by a medical practitioner and the practitioner is ‘of the opinion that the person is a mentally ill person or a mentally disordered person’ then the medical practitioner can complete a ‘mental health certificate’ (s 19). Police and/or ambulance officers could detain the person on the basis of that certificate, but the facts as described tell us that the person had not been examined by a doctor so that section cannot apply.
3. Re-detention by ambulance or police
If the person was not formally ‘detained’ by the mental health facility, then they are entitled to leave. In this case if the ambulance crew do return to the patient’s home and if the patient is there then the paramedics would again have to decide whether the criteria for action under s 20 were then met. If they are not, even if they were before, there would be no justification to ‘take’ the person to the facility without their consent. Equally police would have no power to take the person into custody unless satisfied that the criteria set out in s 22 then applied.