Today’s question relates to ambulance officer as Mental Health Officers under the Mental Health Act 2013 (Tas). My correspondent says that there ‘has been recent discussion between colleagues … regarding the appointment of paramedics as Mental Health Officers under the Mental Health Act 2013 (Tasmania)’. I have been provided a number of posts, but I won’t quote them as they were from a private group. My summary is that the following issues are raised:
- Are there any requirements as a registered professional to be a mental health officer?
- Can ambulance officers who are not MHOs treat mentally ill patients who consent to treatment ie voluntary patients?
- Can patients consent to sedation and/or mechanical restraint, even if the paramedic isn’t a MHO?
- Can a non-MHO paramedic use force to sedate and restrain a person involuntarily at the direction of another MHO?
I am also directed to the Ambulance Tasmania CPG which ‘suggest that a mental health patient has to be DFA prior to being sedated or restrained’ (see https://cpg.ambulance.tas.gov.au/tabs/guidelines/adult-patient-guidelines/medical/page/acute-behavioural-disturbance).
The Mental Health Act 2013 (Tas)
The Mental Health Act 2013 (Tas) provides that the Chief Psychiatrist can appoint people, including ambulance officers, as Mental Health Officers (s 139(3(c)). Mental Health Officers are authorised to exercise various powers, for example a Mental Health Officer (s 17):
… may temporarily detain a person for the purpose of assessing the person if the MHO … reasonably believes that –
(a) the person has a mental illness; and
(b) the person should be assessed against the assessment criteria; and
(c) the person’s safety or the safety of other persons is likely to be at risk if the person is not so detained.
The Mental health Officer may take a person they have detained to an assessment centre and ask the Mental Health Officers there to continue the person’s detention pending their assessment (s 18). Where a person has the power to temporarily detain a person may exercise the powers set out in Schedule 2, these include the power to use reasonable force, enter premises to locate the patient and may search the patient.
An ambulance officer who is also a Mental Health Officer, when (s 212(1)):
… transporting any patient by ambulance under this Act, may sedate the patient if the approved ambulance officer … reasonably considers it necessary or prudent to do so, having regard to, and in accordance with, any field protocols approved under the Poisons Act 1971 by the Commissioner, within the meaning of the Ambulance Service Act 1982.
If sedation is used, that must be reported to the Chief Psychiatrist (s 212(3)).
Unlawful treatment must not be given. Treatment is unlawful unless there is informed consent, or the treatment is authorised by the Mental Health Act or ‘any other law’ (s 213).
The questions
- Are there any requirements as a registered professional to be a mental health officer?
Being a mental health officer under the Mental Health Act 2013 (Tas) is quite separate from registration as a paramedic. The Chief Psychiatrist can appoint any person as an MHO. They don’t have to be a paramedic, or a nurse, or a medical practitioner or any other registered professional. The only qualification is that the person ‘must have skills, qualifications or experience relevant to the responsibilities of MHOs under the relevant statutory provisions’. It is up to the Chief Psychiatrist to determine what those skills, qualification or experience are but it is not limited to registered health professionals.
The Chief Psychiatrist can, with the consent of the Commissioner of Ambulance Services appointed individual ambulance officers, or a class of ambulance officers as MHOs. It could be the case that all officers employed at a certain level are automatically MHOs. It could be that if there are ambulance officers who are not paramedics (eg volunteer ambulance officers) they too could be appointed as MHOs.
It follows that this appointment is quite unrelated to a paramedic’s registration. If all employed paramedics are MHOs then they are an MHO. If paramedics are only appointed if they apply and put in an expression of interest, then they may do so but there is no professional obligation upon them – simply because they are paramedics – to do so.
If they are appointed as an MHO because they are a paramedic then that will form part of their paramedic practice and to that extent their practice will be bound by the professional standards of paramedicine and subject to review under the Health Practitioner Regulation National Law. A decision not to seek appointment, or to do any further training necessary for appointment, however, raises no more professional issues than a paramedic who elects not to become an ICP, or ECP or an areo-medical rescue paramedic. If you don’t want to practice in a particular field, the Paramedicine Board is not going to require you to do so.
2. Can ambulance officers who are not MHOs treat mentally ill patients who consent to treatment ie voluntary patients?
Yes. One of the objects of the Tasmania mental health legislation is ‘to promote voluntary over involuntary assessment and treatment and the making of free and informed assessment and treatment choices’ (Mental Health Act 2013 (Tas) s 12(e)). Schedule 1 sets out the mental health service delivery principles. They include an obligation (s 15):
(a) to respect, observe and promote the inherent rights, liberty, dignity, autonomy and self-respect of persons with mental illness;…
(j) to promote the ability of persons with mental illness to make their own decisions including decisions about the person’s assessment, treatment and recovery that involve a degree of risk; [and]
(k) to involve persons receiving services, and where appropriate their families, carers, children and support persons, in decision-making; …
Where a patient is competent to give informed consent (ss 7 and 8) then their consent makes any treatment lawful (s 213). (That is, of course, subject to the requirement that the treatment is indicated for their condition and is within the practitioner’s scope of practice).
The Mental Health Act 2013 is concerned with involuntary detention for assessment and treatment of involuntary and forensic patients. One only needs to be an MHO for the purposes of exercising powers where the patient cannot give or refuses consent for mental health treatment. Section 17 allows an MHO to ‘temporarily detain a person for the purpose of assessing the person …’ but s 20 says that MHO
… must release the person from being so detained if –
(a) before, or during, the authorised detaining period –
(i) informed consent is given to assess or treat the person;
That is, it is not possible to ‘detain’ a person who voluntarily consents to care, treatment and transport. If the person is not being detained there is need for an MHO and an ambulance officer, taxi driver, or good Samaritan can provide care to a person that the person consents to and that could include taking them to a mental health facility for assessment.
3. Can patients consent to sedation and/or mechanical restraint, even if the paramedic isn’t a MHO?
Yes, see the answer to q. 2 above. Imagine a patient who is anxious and distressed and is looking to paramedics for assistance. They may well be aware that they are having symptoms and are concerned for their own welfare. If a paramedic offers sedation that is indicated by the patient’s condition and that the paramedic is authorised to give, then of course the patient can consent to that care.
At this point I can detour to the CPG which says ‘The mental health patient has to be detained for the purposes of assessment prior to administration of sedation or restraint’. As a direction to paramedics, it says that a mental health patient can only be sedated if they are detained under s 17. But if they consent to the treatment, they cannot be detained. The CPG in effect says paramedics cannot treat a person who wants their assistance and where sedation may be beneficial for them even though if they refused consent, they could be. That is inconsistent with the principles of the Mental Health Act and, I would say, not required by the terms of the Act. A mentally ill person who remains competent can consent to care just as anyone can; and being mentally ill does not mean a person is not competent to consent to treatment – see Victorian decision on refusing medical treatment – reviewing the principles (November 24, 2018).
4. Can a non-MHO paramedic use force to sedate and restrain a person involuntarily at the direction of another MHO?
Only an MHO or a policy officer may temporarily detain a person for assessment (s 17). The MHO who detains a person ‘must escort the person to an approved assessment centre (or ensure that another MHO or police officer does so)…’ (s 18(1)). Whilst transporting a person the ‘custody and escort provisions’ set out in Schedule 2, apply (s 17(2)). Importantly the MHO ‘may enlist the assistance of any person’ (Sch 2, cl 1(a)). The MHO and their assistant may use reasonable force (cl 1(b)). The MHO may search the person using either a ‘frisk’ search or an ‘ordinary’ search depending on the circumstances (cl 2).
The Schedule says that the MHO does not have ‘to be in close physical proximity to the patient during any assessment’ (cl 1(h)). The assessment is ‘the clinical process involved in diagnosing the condition of a person’s mental health and, where necessary, identifying the most appropriate treatment’ (s 5). What cl 1(h) means is that once the MHO has delivered the patient to the assessment centre, they do not need to be there whilst the assessment takes place. For example, an ambulance officer may take the patient to an assessment centre (s 17) and hand over to an MHO at that centre (s 18). That MHO must then continue the patient’s detention (s 18(2)). The ‘controlling authority of the approved assessment centre must – … have the person examined by a medical practitioner to see if the person needs to be assessed against the assessment criteria or the treatment criteria’. Neither the ambulance officer, nor the MHO at the facility, need to be in close proximity to the patient whilst the medical practitioner is completing the assessment. Cl 1(h) does not mean that an MHO can remotely authorise an non-MHO to sedate or restrain the patient in the absence of the MHO.
The clear implication of Schedule 2 is that it is the MHO who is detaining and escorting the patient even if he or she is being assisted. If he or she is there present at the scene and determines that sedation is required (s 212) then he or she can be assisted by a colleague, so for example the MHO might ask their non-MHO paramedic to inject the drug but it is still the MHO exercising the power of sedation. But in so doing they would have to be present as part of the treating team. It would not be open for an MHO at a remote location to authorise a paramedic who is not an MHO to administer sedation.
Restraint can only be applied at an approved assessment centre (s 57). However, I infer that what is being asked here is not so much restraint in order to allow treatment but the use of ‘reasonable force’ ‘against the patient if he or she resists being temporarily detained or taken under escort’ (Sch 2, cl 1(b)). The Schedule anticipates that the MHO can get assistance from anyone and that must include an non-MHO paramedic but again only as part of the treating team with the MHO.
It follows that an MHO can use force and sedation to take a person into detention and to transport them safely for assessment. They can be assisted by any person including a non-MHO paramedic. The MHO can then ask the non-MHO paramedic to assist with sedating or restraining the patient, but they cannot do it remotely. The MHO must be there exercising their control and personally escorting the patient to an approved assessment facility.
This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.
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