Today’s correspondent wants to revisit the Mental Health Act 1987 (NSW) s 22. They say:

… let’s imagine a situation where you work in a mental health unit in NSW. You observe that individuals are occasionally apprehended by the police under Section 22 and brought to the emergency department. After bringing the individual to the emergency department, the police leave the premises, leaving the care responsibility to the Emergency Department staff (i.e., doctors, nurses, and security guards).

The physicians in the emergency department, upon evaluating the individual, make a determination that the individual is mentally ill or mentally disordered and decide to transfer them to the mental health unit involuntarily. They believe that Section 22 alone allows for this transfer and the subsequent involuntary detention in the Mental Health Unit. They believe completing a Section 19 is unnecessary because they already have Section 22, even though the police officers have already left the premises. Additionally, they think that Section 22 remains valid for 24 hours, even if the police have already left the premises – so they believe they have 24 hours to complete a Section 19 and Form 1. They utilise Section 22 as the determination that the individual is mentally ill or mentally disordered, and to involuntarily detain that individual in the Mental Health Unit.

Only upon arrival at the mental health unit where you work, does the psychiatrist complete a Section 19 and Form 1. It’s important to note that sometimes, when the psychiatrist is on call, the individual may be involuntarily detained under Section 22 in the mental health unit for a duration of 30-60 minutes even without the presence of the police.

In this scenario, I am interested in understanding the correct course of action when an individual apprehended under “Section 22” is brought to the emergency department. Specifically, I would like to know if it is the duty of the emergency physicians to complete a “Section 19” and “Form 1” if they determine that the individual is mentally ill or mentally disordered, and require an involuntary admission to the mental health unit; specifically, completing a Section 19 and Form 1 before transferring them and admitting them to the Mental Health Unit. Furthermore, I am seeking clarification on the validity duration of “Section 22” after the departure of the police from the premises, as this information appears elusive within the Mental Health Act.

Section 22 provides that a police officer who ‘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 …’ provided certain conditions are met.  Where the officer acts under s 22 the person is ‘apprehended’ so they are not free to go but must accompany the police to the mental health facility.

The emergency department is a declared mental health facility

I will first assume that the ‘emergency department’ is a declared ‘Mental Health Emergency Assessment’ facility (see NSW Health, Declared mental health facilities (21 August 2019)) and that the ‘physicians in the emergency department’ are authorised medical officers. 

Once the person arrives at the facility, the staff at that facility may elect to detain the person (s 18).  An authorised medical officer must examine the patient within 12 hours (s 27). The person can only be further detained if the authorised medical officer forms the opinion that ‘the person is a mentally ill person or a mentally disordered person.’  If that is the authorised medical officer’s opinion, the patient must be examined by a second doctor who must be a psychiatrist if the first doctor was not a psychiatrist. If that second doctor does not agree that the person is mentally ill or disordered, then there must be a third examination.  If that third doctor agrees that the person is not mentally ill or disordered, then they must be released. If they are of the view that the person is mentally ill or disordered, they may be further detained and put before the Mental Health Review Tribunal (s 27).

There is no need for a doctor to sign a certificate under s 19. Section 19 says:

A person may be taken to and detained in a declared mental health facility on the basis of a certificate about the person’s condition issued by a medical practitioner…

The person is already at a declared mental health facility and is being detained under s 18(1)(c).  Completing a s 19 certificate would add nothing.  Section 18 says a mental health facility may detain a person because they were apprehended by police or because a doctor has written a certificate under s 19.  Either way the mental health facility has to the power to detain the person and take action under s 27.

Once the person is detained (s 18) and has been examined by an authorised medical officer. (s 27) that second examination must be arranged. Section 80 provides:

… a person detained in a mental health facility may be transferred from the mental health facility to another mental health facility or another health facility.

It follows that the ‘physicians in the emergency department’ (assuming it is a declared mental health facility) can transfer the patient to another mental health facility (presumably the mental health unit) for the second and if necessary third examination.  There is no need for a s 19 form. Once the person has been examined by an authorised medical officer who forms the view that the person is mentally ill or mentally disordered, their detention under s 18 is now over and their continued detention is justified by s 27.

Upon arrival at the mental health unit the psychiatrist should examine the patient and if they are of the view that the patient is mentally ill or mentally disordered they must complete the Form 1 described in the Mental Health Regulation 2019 (NSW) Sch 1.  The person’s detention may be continued (s 27(1)(e)) and they may be treated (s 29).

The emergency department is not a declared mental health facility

If the emergency department is not a declared mental health facility, then the police officer’s decision does not justify detention at that centre. If the doctors there form the view that the patient is mentally ill or mentally disordered, they may transfer the person to a mental health facility (s 25).

Any such person is taken to have been detained in the declared mental health facility under section 19 when the person is transferred to the facility.

In those circumstances the doctor does not need to complete a s 19 certificate as teh person is ‘taken to have been’ detained as if a s 19 certificate had been completed. That works if the person agrees to the transfer. If the person does not agree to the transfer, then a doctor would have to complete a s 19 certificate to authorise a NSW Health employee, ambulance officer or police officer to take the person to the mental health facility (ss 19 and 81).

Summary

If the emergency department is a declared mental health facility

  1. Police form the necessary views under s 22.
  2. Staff at the mental health emergency assessment facility may detain the person (s 18(1)(c)).
  3. Within 12 hours the person must be examined by an authorised medical officer (s 27(1)(a)).
  4. If the medical officer forms the opinion that the person is mentally ill or mentally disordered, their detention may be continued pending a second, and if necessary, third examination (s 27(1)(b) and (c)).
  5. If the opinion is confirmed by the 2nd, or if necessary, the 3rd doctor, the person may be detained pending review by the Mental Health Review Tribunal (s 27(1)(d) and (e)).

If the emergency department is not declared mental health facility

  1. Police bring the person to the hospital.
  2. The doctor forms the view that the person is mentally ill or mentally disordered.
  3. They can transfer the person to a mental health facility and the person is deemed to have been detained under s 19.
  4. If the person refuses, the doctor would need to complete a s 19 certificate to authorise NSW Health staff, ambulance officers and, in some cases, police to transport the person to a declared mental health facility.

Conclusion

To return to the question posed:

  • If police act under s 22 they can leave the individual in the care of the emergency department staff (see Who is detaining the person – the police or the mental health facility (NSW) (December 3, 2023).
  • If the ‘physicians in the emergency department’ are authorised medical officers and determine that the individual is mentally ill or mentally disordered, they can transfer the person to another mental health facility (s 80). Completing a s 19 is unnecessary because, at that point the detention and transfer is justified by ss 27 and 80. Section 22 is no longer relevant, but neither is s 19. 
  • Where a person is being detained under s 18(1)(c), ie on the basis that the person has been brought to a mental health facility by police acting under s 22, that detention can be for 12 hours, but there is no requirement for to police to remain. The detention for up to 12 hours is valid ‘even if the police have already left the premises’.   The detention under s 18(1)(c) ends when the person is examined by an authorised medical officer who either forms the view that the person is not mentally ill or mentally disordered in which case they must be released (s 27(1)(a)), or does form the view that the person is mentally ill or mentally disordered in which case their ongoing detention is authorised by s 27(1)(b).
  • Upon arrival at the mental health unit the psychiatrist does not complete a s 19 certificate. If the psychiatrist does form the view the person is mentally ill or mentally disordered, he or she must complete the form provided for in the regulation. That is not the same as the s 19 certificate.  The psychiatrist has to see the person ‘as soon as possible’ (s 27(1)(b)).  Once the person is brought to the mental health facility they are detained by that facility, not the police so there is no need for the police to still be there.
  • It is not the duty of the emergency physicians to complete a “Section 19” and “Form 1” if they are authorised medical officers.  They would need to do that if the emergency department is not a declared mental health facility, and they are not authorised medical officers.
  • Section 22 is not relevant after police have delivered the patient. Section 22 authorise the police to apprehend a person. They take them to the mental health facility and the facility then detain the person under s 18(1)(c). That detention is justified because the person was brought to the facility ‘after being apprehended by a police officer’.  The police apprehension is now over, so the detention remains valid even after the police have left.

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.