Today’s question relates to the Mental Health Act 2014 (WA) and the roles of police and paramedics. For a related post see Paramedics with no police back up – WA (March 19, 2024). Today I’m told:
WA Police and St John Ambulance WA are working through operational challenges regarding attendance at ambulance requests involving mental health cases. I’ve encountered several perspectives on these situations, including that police powers under s156 of the Mental Health Act 2014 (WA) are limited to cases of imminent risk and that paramedics in WA have sufficient authority under the doctrine of necessity or s25 of the Criminal Code Act Compilation Act 1913 (WA) to manage these patients independently.
My specific queries are as follows:
1. Does the requirement in s156 of the Mental Health Act 2014 (WA) to “protect the health or safety of the person or another person” necessitate immediate or imminent harm?
2. Do either the doctrine of necessity or s25 of the Criminal Code Act Compilation Act 1913 (WA) grant paramedics equivalent powers (or any powers) to detain patients who would otherwise meet s156 MHA criteria?
3. If a paramedic assesses that a patient likely meets the criteria for s156 MHA detention, but WA Police refuse to attend, what is the best course of action?
4. If a paramedic determines a patient lacks capacity more generally and deems hospitalisation in the patient’s best interest, but the patient refuses and WA Police refuse to attend, what is the best course of action?
The legislation
We can start by looking at the legislation. The Mental Health Act 2014 (WA) s 156(1) says:
A police officer may apprehend a person if the officer reasonably suspects that the person —
(a) has a mental illness; and
(b) because of the mental illness, needs to be apprehended to —
(i) protect the health or safety of the person or the safety of another person; or
(ii) prevent the person causing, or continuing to cause, serious damage to property.
Sections 25(2) and (3) of the Criminal Code (WA) (which is set out in Appendix B to the Criminal Code Compilation Act 1913 (WA) says:
(2) A person is not criminally responsible for an act done, or an omission made, in an emergency under subsection (3).
(3) A person does an act or makes an omission in an emergency if —
(a) the person believes —
(i) circumstances of sudden or extraordinary emergency exist; and
(ii) doing the act or making the omission is a necessary response to the emergency;
and
(b) the act or omission is a reasonable response to the emergency in the circumstances as the person believes them to be; and
(c) there are reasonable grounds for those beliefs.
Objects of the Mental Health Act
This legislation, and in particular the Mental Health Act has to be read in light of the objects of that Act which include the principle that:
… people who have a mental illness are provided the best possible treatment and care —
(i) with the least possible restriction of their freedom; and
(ii) with the least possible interference with their rights; and
(iii) with respect for their dignity.
Those acting under the Act must also have regard for the Charter of Mental Health Care Principles (s 11).
The role of consent
The need for consent is a fundamental legal principle. Consent transforms what would otherwise be an unlawful touching into a lawful one. The need to obtain consent and respect a patient’s wishes prioritises the ethical principle of respect for autonomy over other principles such as beneficence ie the duty to act in the person’s best interest.
Mental health legislation in most jurisdictions is in place to reverse that order of priority and in limited circumstances allow treatment that is understood to be in the patient’s best interests to be delivered even where the patient is competent and refuses that treatment. Western Australia is an exception to that rule. The criteria for making an involuntary treatment order is set out in the Mental Health Act 2014 (WA) s 25(1). That section says (emphasis added):
A person is in need of an inpatient treatment order only if all of these criteria are satisfied —
(a) that the person has a mental illness for which the person is in need of treatment;
(b) that, because of the mental illness, there is —
(i) a significant risk to the health or safety of the person or to the safety of another person; or
(ii) a significant risk of serious harm to the person or to another person;
(c) that the person does not demonstrate the capacity required by section 18 to make a treatment decision about the provision of the treatment to himself or herself;
(d) that treatment in the community cannot reasonably be provided to the person;
(e) that the person cannot be adequately provided with treatment in a way that would involve less restriction on the person’s freedom of choice and movement than making an inpatient treatment order.
Where the person retains competence, even if they are mentally ill, an involuntary treatment order cannot be made.
Turning then to the questions.
- Does the requirement in s156 of the Mental Health Act 2014 (WA) to “protect the health or safety of the person or another person” necessitate immediate or imminent harm?
The section does not say ‘immediate or imminent’ harm is required though presumably in considering whether the person ‘needs’ to be apprehended a police officer would have regard to the risk of harm which would include whether it was immediate or imminent as well as what alternatives are available to care for the person. If they are in the care of family, can be referred to a doctor or are in the care of paramedics police might reasonably conclude the person does not ‘need’ to be apprehended to protect them or others from harm.
2. Do either the doctrine of necessity or s25 of the Criminal Code Act Compilation Act 1913 (WA) grant paramedics equivalent powers (or any powers) to detain patients who would otherwise meet s156 MHA criteria?
The doctrine of necessity, as a common law doctrine, may continue to apply in WA with respect to civil liability. With respect to criminal liability, one would look to the Criminal Code which is meant to be a stand-alone document and understand that the doctrine has been replaced by s 25. Section 25 is limited to criminal liability only. The question becomes whether the case is a sudden or unexpected emergency.
Exactly what is an emergency is not defined. Attending mentally ill people is not an unexpected event for paramedics nor is it always an emergency. The person may benefit from care but that doesn’t make it an emergency. The concept of emergency carries with it some idea that action is time critical (Wells v R [2017] NSWCCA 242) and that the action taken is necessary to meet the emergency, not merely convenient (Murray v McMurchy [1949] 2 DLR 442) even if in the patient’s best interest.
Not everyone who is mentally ill is presenting as an emergency patient even if their illness is not being adequately treated and even if they would benefit from treatment.
If paramedics wanted to rely on s 25 to detain a person, then it would have to be a very serious emergency that is with an imminent and dire threat to the patient or others eg the patient is on a rampage with a knife or threating too, and able to take their own life. If there is no immediate risk or if there is time to call for police to exercise their power under s 156 then there is no emergency.
As for civil liability the common law doctrine of necessity does not apply where the patient is competent to make their own decision even if they are not making wise or sensible decisions (see In Re F [1990] 2 AC 1). Where the patient is not competent, that is they do not meet the standards set out in the Mental Health Act 2014 (WA) s 18, then yes they could be treated by paramedics or anyone. If anyone found a mentally ill person in distress who was not competent they could take steps to encourage them to sit whilst police or the ambulance service is called and could take action to restrain them if they were posing an immediate threat to themselves or others (see also Criminal Code (WA) s 248 and self-defence which includes the defence of others).
If a person or paramedic was to detain a person because of the immediate threat to that person or another and because the person is mentally ill, the detention could only be justified to allow time to call police to come and exercise their power under s 156. The Criminal Code would not for example give paramedics the power that police have under s 156, that is the power to:
… arrange for the person to be assessed by a medical practitioner or authorised mental health practitioner for the purpose of deciding whether or not to refer the person under section 26(2) or (3)(a) for an examination to be conducted by a psychiatrist;
Nor would it justify detention until
(i) the person is received into the place where the assessment will be conducted;
(ii) the person is delivered into the care of the medical practitioner or authorised mental health practitioner who will assess the person;
(iii) the [person] is satisfied that the grounds for suspecting that the person needs to be apprehended no longer exist.
In short if a mentally ill person’s actions have created an emergency where there is a threat to their well-being or the safety of others and immediate action is required, then paramedics (or indeed anyone) could take action to try and detain the person (if that is reasonable in the circumstances) and hold them until police arrive and make a decision under s 156. It would not give paramedics ‘equivalent powers’ to those granted to police under s 156. The legislature intends that it is police who will make the decision whether a person ‘needs’ to be detained under the Mental Health Act so detention by others, in an emergency, would be limited to detaining the person long enough to allow police to make that decision.
3. If a paramedic assesses that a patient likely meets the criteria for s156 MHA detention, but WA Police refuse to attend, what is the best course of action?
If the patient is competent (Mental Health Act 2014 (WA) s 18) that is they can:
(a) understand the things that are required under section 19 to be communicated to the person about the treatment; and
(b) understand the matters involved in making the treatment decision; and
(c) understand the effect of the treatment decision; and
(d) weigh up the factors referred to in paragraphs (a), (b) and (c) for the purpose of making the treatment decision; and
(e) communicate the treatment decision in some way.
Then you have to try and persuade them to accept treatment and transport. If they are posing an immediate threat to themselves or others then one could rely on the Criminal Code s 25 and/or s 428 to use reasonable force to restrain them and if police won’t come in response to a call from comcen, call triple zero and insist. The fact that people are getting ‘hands on’ should persuade police that their attendance is urgently required.
If the patient would benefit from treatment, that is there is likely to be a poor outcome for them if they are not treated, they are vulnerable and at risk of abuse or of making poor choices but they are not posing an immediate and physical danger then there is nothing you can do. People, including the mentally ill, are entitled to make decisions that others think are poor decisions. Try to communicate with family and friends or local support services to try and get assistance but you cannot force a competent person to accept treatment no matter how much it would benefit them.
4. If a paramedic determines a patient lacks capacity more generally and deems hospitalisation in the patient’s best interest, but the patient refuses and WA Police refuse to attend, what is the best course of action?
If the patient is not competent, then provide treatment that is reasonably indicated and in the patient’s best interests. Note too s 262 of the Criminal Code which says:
It is the duty of every person having charge of another who is unable by reason of age, sickness, mental impairment, detention, or any other cause, to withdraw himself from such charge, and who is unable to provide himself with the necessaries of life, whether the charge is undertaken under a contract, or is imposed by law, or arises by reason of any act, whether lawful or unlawful, of the person who has such charge, to provide for that other person the necessaries of life; and he is held to have caused any consequences which result to the life or health of the other person by reason of any omission to perform that duty.
Where the patient is competent they are able to withdraw themselves from the care of paramedics by refusing treatment. But if they are not competent and have come into the care of paramedics then this section would further justify reasonable treatment.
If we again however remember the principles of the Act and the legislative grant of power to police, if you are treating a person who in your view is not competent but who is making it clear that they do not want treatment and want to leave, the prudent thing to do would be to insist on police attendance so they can make a decision under s 156. The argument above relating to s 262 would be more relevant where the person is not competent but is either cooperating with or at least not resisting care.
Conclusion
The legislature has made it clear that the power to detain a person and arrange for their examination in a mental health facility rests with police. Paramedics and anyone could use reasonable force to restrain and detain a person who was posing an immediate threat to themselves or others (Criminal Code ss 25 and 248) but that power should be limited to restraining them until police arrive and can make decisions under the Mental Health Act.
Where a person is competent and not posing an immediate threat or at immediate risk of serious harm then paramedics have no power to compel treatment and police would have to consider whether the person ‘needs’ to be detained for care or whether alternatives such as community or family care, or even care by paramedics if the patient can be persuaded to consent, is sufficient to meet the patient’s needs.
Where the patient is not competent then as with any not-competent patient paramedics can provide care that is reasonably indicated and, in the patient’s, best interests. Where the patient cooperates or is otherwise indifferent to the paramedics’ care, that would include transporting the patient to hospital if that is indicated by their condition. Where the patient actively opposes the paramedics so attempts to provide care may expose the patient or the paramedics to risk, or where it would be necessary to use force to treat the patient, paramedics should withhold care until police attend and make a decision under s 156. If the police decide not to act, then there’s nothing further the paramedics can do.
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.
Australian Emergency Law 
WHY, are the new generation of ambos ( who want to call themselves Paramedics ), so obsessessed in the POWER to take people to hospital, just because they think the person is mentally ill and ‘needs’ treatment ?
The average ambo has no appreciation, that 90% of all such ‘deliveries’ result in the person transported, self- discharging within the hour ( BEFORE being seen by a doctor ).
The ‘mentally ill’ are in fact, real people. They have the same rights as you do ( ambos ). If a person has a particular lifestyle, or dresses a certain way, or acts a certain way ….. ambos do not NEED to drag people ‘kicking and screaming’ to hospital, where they will simply walk out within minutes. Such action is not only a waste of ambulance resources, but the paperwork, and unnecessary redirection of staff resources at the hospital, causes a ‘resentment’ toward the system that brings unnecessary patients to hospital.
ED staff get to know their ‘frequent flyers’ …. While ambos may THINK the person NEEDS mental health treatment, the hospital staff know the PERSON …. review the ‘report’ from ambos …. and deem the alleged events as not meeting the threshold. Hospital staff often get the ‘self-discharge’ form ready.
So, ambos would be better serving the community, if they just let people do their thing, and not impose THEIR personal standards on others.
Exercise: North Shore ambos. Take a walk down King Street Newtown on a Saturday night. Make your mental health assumptions there ….. Then consider, what is accepted as ‘normal’. Take that back to your workplace.
They call themselves paramedics because that is what they are – as nurses call themselves nurses.
I think paramedics, and doctors, and it seems particularly in WA get drilled that they have a ‘duty’ to ensure no harm comes to people so they think they have to take people to hospital where there may be adverse consequences if they are left to their own devices. It is not a position supported by law or ethics but it does seem a uniquely WA perspective – see https://australianemergencylaw.com/2023/08/29/publication-on-detaining-patients-in-the-ed/
To confirm with Michael said, this is quite a unique to WA approach. Due to the overt climate of liability and risk to the practitioner (paramedics in this case of WA) in the possible outcomes that may occur, the approach taken now is it is better to be transported than not.
That being said, if a person demonstrates competence we cannot “bundle them up” and “kidnap” as is the common expression in WA. Only a police officer, AMHP or medical doctor can involuntarily detain a person within the pre-hospital context. The role of the ambulance staff in this is to facilitate transport, either via emergency ambulance or pre-booked MH transport service under a 1A/4a form arrangement.
As is the case at SJOGMPH.
SJOGMPH?
Saint John of God Midland Public Hospital believe anyone with a mental illness is unable to rationally refuse medical advice. Hence they will treat you without consent.