Today we return to the Mental Health Act 2007 (NSW) at the request of ‘… a Registered Nurse working in a rural Emergency Department…’   I’m asked:

  • If we are not a ‘declared’ ED or MH facility, does section 20 or 22 stand at all? Or is it null and void given we are not a ‘declared’ facility?
  • If a patient is transported under a section 20 or 22, how long is that enforceable by the hospital for? If at all?
  • Once the patient is seen by a medical doctor in our rural facility, does that the null and void the section 20/22?

There is often a lot of confusion regarding this, and we are accepting patients transported under section 20/22 due to geographical isolation and the closest declared MH and ED facilities being around 4 hours away. It is often hard to know how ‘detainable’ someone is given we have no appropriate facilities for mental health patients. 

It’s true that the Mental Health Act is not a exemplar of clarity. The answers below depend on an implied power to detain a person in a health facility pending their transfer to a prescribed mental health facility. That the power is implied, rather than express, is another deficit in the drafting of this important Act.

The Act

The Mental Health Act 2007 (NSW) s 20 says that an ambulance officer may transport a person to ‘a declared mental health facility’ if the person appears to be mentally ill or mentally disordered and ‘it would be beneficial to the person’s welfare to be dealt with in accordance with this Act.’ Section 22 provides similar powers to police.

A ‘declared mental health facility’ is premises that have been declared for the purposes of the Act under s 109.  Details of what it means to be a declared mental health facility are available on the Department of Health website – Declared mental health facilities – Consumers (nsw.gov.au)

Section 18 of the Act allows the staff of a declared mental health facility to detain a person who is brought to the facility by an ambulance officer acting under s 20, a police officer acting under s 22 or a person who is the subject of a certificate completed by a doctor under s 19.

Section 18(2) says:

A person may be detained, under a provision of this Part, in a health facility that is not a declared mental health facility if it is necessary to do so to provide medical treatment or care to the person for a condition or illness other than a mental illness or other mental condition.

In a rural emergency department that means they can detain a person who is mentally ill or mentally disordered if they need to hold them whilst they treat their other injuries. For example, a person who is mentally ill and who has harmed themselves can be detained in a general hospital whilst their injuries are attended to. 

Section 25 says:

(1) A person may be transferred from a health facility to a declared mental health facility and detained in the mental health facility if a medical officer of the health facility, or the authorised medical officer of the mental health facility, considers the person to be a mentally ill person or a mentally disordered person.

(2) 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.

The questions asked

To answer the questions asked:

  • If we are not a ‘declared’ ED or MH facility, does section 20 or 22 stand at all? Or is it null and void given we are not a ‘declared’ facility?

If an ambulance officer or police officer has detained the patient, they can take them to the local ED to ensure that there are no other injuries that need attending to. The paramedics may also be unsure whether the person is mentally ill or mentally disordered so seek a doctor’s opinion on the subject.  Sections 20 and 22 do not give the staff at a non-declared facility the power to detain a patient so their ongoing detention must be on the authority of the ambulance officers or police officers.

If a medical practitioner examines the patient and forms (s 19):

… (b) the opinion that the person is a mentally ill person or a mentally disordered person, and

(c) is satisfied that no other appropriate means for dealing with the person is reasonably available, and that involuntary admission and detention are necessary …

Then that practitioner may arrange for the patient’s transfer to a mental health facility (s 25). Section 81 provides that:

(a) a member of staff of the NSW Health Service,

(b) an ambulance officer,

(c) a police officer,

(d) a person prescribed by the regulations.

may transport the person to a declared mental health facility.  There must be an implied power to detain the person whilst arrangements are made for the patient’s transfer.

  • If a patient is transported under a section 20 or 22, how long is that enforceable by the hospital for? If at all?

There has to be an allowance of a ‘reasonable time’ for a doctor to examine the patient (either personally or by video conference (s 19A).  I would also infer that, unlike at a declared facility, the ambulance or police officers would have to stay on site as the person is being ‘detained’ under their authority. From the perspective of the ambulance and police officers the local ED is merely a stop en route to the declared mental health facility, rather than the destination.

  • Once the patient is seen by a medical doctor in our rural facility, does that the null and void the section 20/22?

Yes, once the person has been examined by a doctor their ongoing detention, if justified, would be authorised by ss 18(2), 19 or 25. 

Where the medical practitioner forms the view that the person is mentally ill or mentally disordered and should be detained under the Act, but before that can happen their other conditions or injuries need to be treated, then the person can be detained under s 18(2).

If there are no other conditions or illnesses, then the detention would be justified under ss 19 and/or 25.  The detention would have to be for no more than a ‘reasonable’ time to arrange for the patient’s transfer to a declared mental health.

Conclusion

People are to be detained in a declared mental health facility because (we hope) they have ‘appropriate facilities for mental health patients’ and can provide the specialist care that they need. A local emergency department will have an important role to play.  Where an ambulance officer or police officer has detained a person, they may want to take them to the local ED to make sure there are no other conditions or illnesses that need treating or to get a second opinion on the patient’s condition.  Whilst at the ED a doctor may examine the patient and determine that they are mentally ill or mentally disordered and issue a certificate under s 19 or arrange their transfer under s 25. Either way that would authorise further detention by the health service whilst arrangements are put in place to transfer the patient.

The staff of a local ED must be able to detain a patient under the Mental Health Act but only as part of the process of transferring them to a declared mental health facility or to treat any other illness or injury. It cannot be for the purpose of providing ongoing, involuntary treatment of their mental illness.

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.