Today’s question revisits the Mental Health Act 2007 (NSW) s 20.  The question is:

In NSW, does an off-duty NSW Ambulance Paramedic have the capacity to ‘Section’ someone under the Mental Health Act or does that power/responsibility come with being uniformed and on duty?

I completely understand the obvious practical advantages of calling a mental health emergency in and waiting for a uniformed crew to arrive, especially if you were related to the patient.

I’m not sure what my correspondent means by ‘the capacity to ‘Section’ someone under the Mental Health Act’ – ie what do they think that capacity is? And what effect do they think it has that they would want to do it whilst off-duty?

I have written many times that I don’t think s 20 says, or allows, what NSW Ambulance thinks it says or allows – see https://australianemergencylaw.com/?s=mental+health+s+20.  In particular I don’t think it allows a NSW Ambulance Paramedic to ‘section’ anyone, but I concede that may be an opinion that I alone, hold – see Accepting that involuntary treatment is an option under s 20 of the Mental Health Act 2007 (NSW) (November 25, 2020).

But even if it does allow NSW ambulance officer to detain and treat a competent, albeit mentally ill patient against that patient’s wishes, does it allow an off-duty officer to do that?  Let us again look at what s 20(1) actually says.  It 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 20 must be read with s 18. Section 18(1) says, relevantly:

A person may be detained in a declared mental health facility in the following circumstances– …

(b) after being brought to the facility by an ambulance officer (see section 20) …

An ambulance officer is ‘member of staff of the NSW Health Service who is authorised by the Secretary to exercise functions of an ambulance officer under this Act’.  Let us accept that an ambulance officer is an ambulance officer (as defined) whether on or off duty.

The key issues in both ss 18 and 20 is transport. The ambulance officer is allowed to take the person to a mental health facility (s 20) and the staff at the mental health facility can detain the person who has been brought to the facility by the ambulance officer (s 18) until the patient has been assessed and otherwise dealt with under the Act. 

If an off-duty ambulance officer is not going to transport the patient so s 20 is not triggered.  If they are transported by an on-duty crew, or police, then it is that transportation, not the action of the off-duty paramedic, that triggers s 18.

That does not mean an off-duty paramedic cannot do anything if a person is mentally ill and in need of care.  If the patient’s symptoms are such that they are not competent to give, or refuse consent, they can be treated as can any non-competent patient. Treatment that is reasonably necessary and in their best interests can be administered (In Re F [1990] 2 AC 1).

If the patient remains competent then action can be taken if they are a threat to themselves or to others. Reasonable force may be used to prevent a suicide (Crimes Act 1900 (NSW) s 547B) and in self-defence or the defence of others (Crimes Act 1900 (NSW) ss 418 and 422).

My correspondent says:

I completely understand the obvious practical advantages of calling a mental health emergency in and waiting for a uniformed crew to arrive, especially if you were related to the patient.

Although they understand the issue ‘especially’ if ‘related to the patient’ it is worth quoting the AHPRA Code of Conduct (June 2022), adopted by the Paramedicine Board, which says (at [4.8]):

Providing care to anyone you have a close personal relationship with, for example … family members, can be inappropriate because of the lack of objectivity, possible discontinuity of care and risks to the practitioner or patient.

Even given that, if the officer wanted to take the patient – against their will – in their own car to a mental health facility then I cannot see anything in s 20 that says they cannot.  I can imagine that a judge may be sympathetic to the argument if the conduct was reasonable in all the circumstances but if the patient continued to object (such that they sought a legal remedy) and there was any suggestion of any conflict of interest or unreasonable action, a judge could find that the off-duty officer was not then acting as an ambulance officer and any attempt to use s 20 as an defence would be an illegitimate attempt to try and cloak illegal behaviour as something it wasn’t. As an example of that sort of reasoning see Lobsey v Care (1983) 1 M.V.R. 1 where private landowners were conducting a hazard reduction burn along the side of the road.   One of the landowners was also the captain of the local bushfire brigade.  He wanted to rely on ss 22 and 48 of the Bushfires Act 1949 (NSW) to justify the action but that was rejected as he was clearly acting in his own interest not in the capacity of the then Bush Fire Brigades.  A similar result may apply if there is any suggestion the off-duty ambulance officer was acting in his or her own interest rather than with the necessary professional detachment – the professional boundaries – that should apply to the paramedic/patient interaction.

If the person is willing to go with the paramedic, then s 20 is irrelevant.  Anyone can take a person to a mental health facility for assessment if everyone thinks that person needs to go there.

Conclusion

Both ss 18 and 20 of the Mental Health Act 2007 (NSW) depend on a decision by a NSW Ambulance officer to transport a patient.  If an off-duty officer is not intending to ‘take the person to a declared mental health facility’ then s 20 is not relevant.   

If an off-duty officer does intend to transport a person who is mentally ill, competent but refusing treatment – putting aside ‘the obvious practical advantages of calling a mental health emergency in and waiting for a uniformed crew to arrive, especially if you were related to the patient’ – there is nothing explicit in s 20 that says they cannot do so.  The real question would be whether they were providing good paramedic/ambulance care without allowing their personal involvement to cloud or influence their judgement.  If a court found that they did not maintain that professional detachment then a judge may be open to the argument that they were not, at that point, acting as an ‘ambulance officer’ but as a private citizen now trying to cloak their action with authority.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.