Today’s question relates to the:

… Victorian mental health Act, specifically in relation to section 232 and the powers of police and Paramedics.  Recently there have been a number of cases where Police have declined the advice of Ambulance service paramedics when utilising s 232. As a result: 

– Patients who paramedics had assessed as appearing to have a mental illness and being at imminent risk of serious harm were not transported to hospital despite this being communicated to police. 

– Patients who paramedics had assessed as not being at imminent risk of serious harm were involuntarily transported to hospital when paramedics believed and communicated to police that this was not appropriate, and that they could have been appropriately managed by other mental health referral services. 

For context, ambulance service paramedics are currently listed as authorised health professionals under the Act, however the ambulance service has not yet empowered paramedics to utilise this Act.  The health led response principle (s 228) states that: 

“The exercise of a power by an authorised person under this Chapter so far as is reasonably practicable in the circumstances— (a) is to be exercised by an authorised health professional; or (b) if it is not reasonably practicable in the circumstances for the power to be exercised by an authorised health professional, is so far as is reasonably practicable in the circumstances to be informed by— (i) another authorised person who is an authorised health professional; or (ii) the advice of a registered medical practitioner, an authorised mental health practitioner, a registered nurse or a registered paramedic. ” 

As we are “authorised health care professionals” who cannot practicably exercise our power due to not currently having the facilities to do so through our employer, is it reasonable to assume that the police should be led by our assessment and decision making in the above situations? And that it would be a breach of the act to decline our advice? The use of the wording “informed by” in the act seems a bit vague. In the situations listed above crews have clearly articulated their concerns on how the patient was an imminent risk, in one situation a patient had overdosed on an unknown quantity of medication which the paramedics advised police could be life threatening. However, the police just stated “It doesn’t meet our criteria so we’re not using the powers”. 

Section 232

The full name of the Act is the Mental Health and Wellbeing Act 2002 (Vic).  Section 232 is in Chapter 5—Mental health crisis response and transport by authorised persons. Section 232 says:

(1) An authorised person who is a police officer, a protective services officer or a member of a prescribed class of persons may take a person into care and control under this section if the authorised person is satisfied that—

(a) the person appears to have mental illness; and

(b) because of the person’s apparent mental illness, it is necessary to take the person into care and control to prevent imminent and serious harm to the person or to another person.

(2) A person remains in an authorised person’s care and control under this section until the person’s care and control ends in accordance with section 239.

An ‘authorised person’ is (s 3):

(a) a police officer; or

(b) a registered paramedic employed by an ambulance service as defined in section 3(1) of the Ambulance Services Act 1986; or

(c) a protective services officer; or

(d) a registered medical practitioner employed or engaged by a designated mental health service; or

(e) an authorised mental health practitioner; or

(f) a member of a prescribed class of person.

Section 232 does not give the power to ‘take a person into care and control’ to all authorised persons. It says it only applies to ‘An authorised person who is a police officer, a protective services officer or a member of a prescribed class of persons…’ (emphasis added). The Mental Health and Wellbeing Regulations 2023 (Vic) do not prescribe any other authorised persons so the section only applies to police and protective service officers.

Section 228

Section 228 (also in Chapter 5) says:

The exercise of a power by an authorised person under this Chapter so far as is reasonably practicable in the circumstances—

(a) is to be exercised by an authorised health professional; …

It is not reasonably practicable for an authorised health professional to exercise the power granted by s 232 as that power is not granted to an authorised health professional, it is only granted to police and protective service officers.

Section 228 continues:

(b) if it is not reasonably practicable in the circumstances for the power to be exercised by an authorised health professional, is so far as is reasonably practicable in the circumstances to be informed by—

(i) another authorised person who is an authorised health professional; or

(ii) the advice of a registered medical practitioner, an authorised mental health practitioner, a registered nurse or a registered paramedic.

Discussion

A paramedic employed by Ambulance Victoria is ‘another authorised person who is an authorised health professional’ (s 228(b)(i)).  Police should also be informed by a paramedic who is not employed by Ambulance Victoria (s 228(b)(ii)).

That the police response should be ‘informed’ by a paramedic (whether employed by Ambulance Victoria or not) means that the police should take into account and consider that opinion. It does not say the police must act in accordance with that opinion. If it came to a test police would have to justify their actions and indicate how their decision was informed, that is how they took into account, the advice that they had received.

It is not a ‘breach’ of the Act in the sense that it is not an offence to fail to act on the advice received. It is a ‘breach’ in that the officers have not performed the task according to law if they are not ‘informed’ by the advice of a health professional (including a paramedic) that is that they ignore or do not consider the advice received.  It means that if a paramedic advises police that the person does not have a mental illness or that it is not ‘necessary to take the person into care and control to prevent imminent and serious harm to the person or to another person’ because for example there are better alternatives, then that person would have strong grounds for an action alleging false imprisonment and/or battery.  If a paramedic advises police that the criteria in s 232 are met then there may be grounds for an action in negligence if the patient or some third party is injured as a result of the failure to act (see Presland v Hunter Area Health Services [2003] NSWSC 754 and Hunter Area Health Services v Presland [2005] NSWCA 33).

Police also have to take into account the mental health and wellbeing principles (s 229) and go for the least restrictive approach (s 230).

First conclusion

It follows then that under s 232 the decision to ‘take a person into care and control’ is a decision for the police or protective services officer but they should, where possible, be informed by the advice of a paramedic involved in the care of the patient. To be informed by does not mean ‘must follow or accept’ it means the advice is one factor to be considered.  Where the advice is not followed, then in any challenge to their decision the police involved would have to explain their position.  Where the advice is ignored then it may be said that their decision was ultra vires and that could lead to liability for torts such as false imprisonment or battery.

The status of paramedics

My correspondent says

For context, ambulance service paramedics are currently listed as authorised health professionals under the Act, however the ambulance service has not yet empowered paramedics to utilise this Act.

I’m really not sure what that means.  The Act says ‘authorised health professional’ means: ‘means an authorised person who is— (a) a registered paramedic employed by an ambulance service as defined in section 3(1) of the Ambulance Services Act 1986’.

A noted above an authorised person is also ‘a registered paramedic employed by an ambulance service as defined in section 3(1) of the Ambulance Services Act 1986’ (s 3).  So, an authorised health professional is, confusingly

… a registered paramedic employed by an ambulance service as defined in section 3(1) of the Ambulance Services Act 1986 who is (a) a registered paramedic employed by an ambulance service as defined in section 3(1) of the Ambulance Services Act 1986;

Regardless of the semantic mess, a paramedic employed by Ambulance Victoria is both an ‘authorised person’ and ‘an authorised health professional’.  They do not need any further endorsement from Ambulance Victoria for that to be the case.  The powers and authority granted to Ambulance Victoria paramedics is granted by the Mental Health and Wellbeing Act, not by Ambulance Victoria.  Police need to be informed by the opinion of an Ambulance Victoria paramedic regardless of what Ambulance Victoria says.  But Ambulance Victoria paramedics cannot take a person into care because s 232 only applies to police and protective service officers.  Again, that is because that is what the Act, not Ambulance Victoria, says.  

A paramedic employed by Ambulance Victoria is an authorised health professional because of the Mental Health and Wellbeing Act, not because of any action or approval by Ambulance Victoria but ideally Ambulance Victoria should be developing policies, procedures and training to inform paramedics of what their authority is and how and when to exercise that authority. 

Final conclusion

The questions I was asked were: is it reasonable to assume that the police should be led by our assessment and decision making in the above situations? And that it would be a breach of the act to decline our advice?

My answers are:

• Yes, ‘so far as is reasonably practicable in the circumstances’ police are required to listen to and consider the advice – ie to be informed by – the opinion of a paramedic employed by Ambulance Victoria involved in the care of the person who they are thinking of taking into care. That does not mean they have to do what the paramedic tells them to do, but they have to consider the paramedic’s advice and take that into account when making their decision.
• It would not be an offence to fail to heed the advice.  It may mean the decision making miscarries if the officers do not consider the advice, ie they do not use it to inform their ultimate decision and so their decision to either take the person into care, or to refuse to take the person into care may be found to be ultra vires with different legal consequences depending on the circumstances and the outcome.

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.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.