I have previously written about the power of Queensland ambulance and police officers to detain persons who is at immediate risk of serious harm and where that risk arises as ‘the result of a major disturbance in the person’s mental capacity’ (Public Health Act 2005 (Qld) s 157B); see all the posts that appear here: https://australianemergencylaw.com/?s=%22Public+Health+Act+2005%22

The application of the Public Health Act received some discussion in TLE v R [2022] QDC 297.  In this case TLE was detained by police relying on s 157B.  In the course of her detention TLE spat on the three police officers involved and was charged with assaulting police in the execution of their duty.  As a preliminary point, TLE argued that the police were not acting in the execution of their duty because they failed to comply with s 157C(1)(b).  Section 157C(1) says:

The ambulance officer or police officer [who detains a person under s 157B] must—

(a) tell the person that the officer is detaining the person and transporting the person to a treatment or care place; and

(b) explain to the person how taking action under paragraph (a) may affect the person.

It was accepted that there was compliance with s 157C(1)(a) but, it was argued (at [22]):

… that there was not strict compliance with s 157C(1)(b) because the ambulance officers or police officers did not explain how the applicant’s detention and transport would affect her because she was not told that reasonable force could be used, although it was accepted that an officer tried to tell her that (s 157L). Further, the applicant was not told that she could be detained at the hospital for not more than six hours (s 157E).’

Judge Rafter, sitting as the Queensland District Court, had to determine whether s 157C(1) imposed mandatory requirements before action could be taken under s 157B. His Honour said (at [15]) “The approach to the interpretation of a procedure set out in legislation involves consideration of the consequences that would flow from requiring strict compliance.”  His Honour (at [16]) quoted from the judgement of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority where McHugh, Gummow, Kirby and Hayne JJ said:

An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition…

That is when deciding whether failure to comply with s 157C is intended to make any action under s 157B unlawful, the court had to look at the legislation to determine whether it can be inferred that this was the consequence the parliament intended.

His Honour noted (at [18]) that it is not ‘difficult to contemplate cases where it may be impossible for an ambulance officer or police officer to comply strictly with the requirements in s 157C. A person in the process of attempting suicide may not speak English. A person may have attempted to commit suicide by taking an overdose and be in a state of semi-consciousness’.  In this case ‘the applicant’s hysterical state made it virtually impossible for the ambulance officers or police officers to convey the information which the applicant submits should have been communicated to her.’

His Honour concluded that non-compliance with s 157C does not necessarily invalidate the decision to detain, treat and transport under s 157B.  That does not mean the police or ambulance officers can ignore s 157C but if their attempts to communicate with the patient are frustrated, non-compliance can be forgiven if there were reasonable attempts to comply. In this case (at [24]-[25]) His Honour said:

It is clear from this exchange and observing the recording that the police were taking reasonable steps to ensure that the applicant understood what was occurring… It is clear then that the applicant frustrated any attempts by the police officer to explain the procedure that was being undertaken.

To the extent that there was any non-compliance with s 157(1)(b), this was the result of the applicant’s behaviour which no doubt was due to her mental state.

His Honour held that the police were acting lawfully in exercising their powers under the Public Health Act 2005 (Qld). 

That is not the end of the matter. This decision dealt with the argument put on behalf of TLE that the police were not acting in the execution of their duty.  That argument having been resolved in favour of the prosecution the matter will no doubt be listed for trail but, equally with no doubt, TLE and her advisers will consider that judgment and may, in light of that outcome, elect to enter a guilty plea. That will of course depend on them and all the evidence.  Given that there was no dispute that TLE was suffering the effects of a ‘major disturbance’ in her ‘mental capacity’ she may elect to run a defence of ‘insanity’ under the Queensland Criminal Code s 647.  Whether TLE and her lawyers elect to do that will depend on the evidence and other factors we cannot possibly know or comment on.

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.