Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD, Australian Lawyer. Email: meburn@australianemergencylaw.com
Today’s question deals with the Mental Health and Related Services Act 1998 (NT) and the power of paramedics to detain a patient. I’m told that
Paramedics in the NT have recently been informed by their employer that they are not permitted to use Section 31 or complete a Form 6 under this Act.
The attached Clinical Services update from St John Ambulance NT (SJANT) and a screenshot from the Clinical Practice Manual App have led to confusion between NT Police and Paramedics. The issue arises when a patient is non-violent and non-aggressive but requires an involuntary Mental Health Assessment and sedation—for example, someone expressing suicidal intent by walking into traffic.
In a recent case, Paramedics detained and sedated a patient to prevent her from exiting a moving ambulance. Police met the ambulance en route to the hospital and, seeing the patient was now calm and sedated, decided to follow rather than intervene. Upon arrival, Police advised that since it was a medical issue, Paramedics should complete a Form 6 to justify their actions.
When this case was presented to SJANT management, their response was that a Form 6 was not necessary, as the Paramedics’ “Duty of Care” justified restraining, sedating, and transporting the patient against their wishes.
The Mental Health and Related Services Act 1998 (NT) s 31 says:
(1) A paramedic may detain a person being conveyed in an ambulance for up to 6 hours where the paramedic believes, on reasonable grounds, that the person may fulfil the criteria for involuntary admission on the grounds of mental illness or mental disturbance.
(2) When detaining a person under subsection (1), a paramedic may use reasonable measures, including the use of restraints, on the person:
(a) to prevent the person causing serious harm to the person or to someone else; or
(b) to prevent behaviour of the person likely to cause serious harm to the person or to someone else; or
(c) to prevent further physical or mental deterioration of the person; or
(d) to relieve acute symptomatology.
(3) A paramedic who detains a person under subsection (1)
(a) must convey the person to the nearest approved treatment facility or, if that is not practicable, to the nearest hospital, as soon as practicable after the person is detained; and
(b) on arriving at the approved treatment facility or hospital, must complete the approved form and send it to an authorised psychiatric practitioner.
(4) For subsection (3)(b), the form may be sent by fax or email.
Powers
The Clinical Services Update says that ‘Paramedics are not afforded the same powers as Police …’. In fact it appears that paramedics have more power than police. Police may apprehend the person but must take them to an authorised practitioner ‘as soon as possible’. A paramedic may detain the person for up to 6 hours and must take the person to a relevant facility as soon as ‘practicable’. Presumably what is practicable may be longer than what is ‘possible’ if there are other factors that come into play and make it impracticable to transport the patient even if it is theoretically possible. Paramedics may exercise the powers set out in 31(2) whilst police may use ‘reasonable force’ (s 32A(7)(a)).
Detention or apprehension?
The Clinical Services Update notes that the reference of ‘a person being conveyed in an ambulance’ may not extend to a person who is not in an ambulance but who meets the criteria for involuntary admission.
If, a carer or person has contacted the ambulance service directly, paramedics responding to the call will determine whether the person requires immediate transport to hospital or ATF. If applicable, paramedics may then use the provisions outlined in section 31, if the person refuses transport to an ATF or hospital.
Under section 31 of the Mental Health and Related Services Act 1998, a registered paramedic may detain a person in an ambulance for up to 6 hours and convey them to an approved treatment facility or hospital, where they believe that the person may fulfil the criteria for involuntary admission on the grounds of mental illness or mental disturbance.
Whilst my general position is to never take legal advice from the executive arm of government (ie the law is what the legislation says, not the governments interpretation of that legislation) we can see that NT Health understand the power to ‘detain a person being conveyed in an ambulance’ is a power to detain them in an ambulance rather than say taking them to a police station. It would also mean an ‘off duty’ paramedic or a paramedic without an ambulance cannot detain a person.
On the other hand, the Act does say ‘A paramedic may detain a person being conveyed in an ambulance’. It does not say ‘A paramedic may detain a person in an ambulance …’ nor does it say ‘A paramedic may detain a person and then convey that person in an ambulance…’ Further, as the Clinical Services Update notes, police have the power to apprehend under s 32A. So police can ‘apprehend’ and paramedics can ‘detain’ and these words must have different meanings; if the legislature meant the same thing, they would have used the same language.
(As an aside, these types of arguments are also the basis of my argument that the Mental Health Act 2007 (NSW) s 20 does not permit NSW Ambulance paramedics to detain a competent patient who refuses consent to treatment. In the NSW Act, like the NT Act, police have a power to ‘apprehend’ (s 22). In NSW s 20 does not say that paramedics can either apprehend or detain a person, merely that they can transport them).
Typing ‘define detain’ into Google produces this definition ‘keep (someone) from proceeding by holding them back or making claims on their attention’. ‘Define apprehend’ produces ’arrest (someone) for a crime’ but clearly police are not arresting someone for a crime when they apprehend a person under s 32A. The Police Administration Act 1978 (NT) s 123 uses the term ‘arrest’ when talking about detaining a person suspected of committing a crime. The same Act talks about ‘apprehending’ a person for example if they are intoxicated and need to be taken into care for their own welfare (s 128). It would seem that in the Police Administration Act the word ‘apprehend’ is used where police may take a person into custody for reasons other than an allegation of criminal conduct (see also ss 147FC, 147FF and 147FN). The use of the word ‘apprehend’ in s 32A is consistent with that usage; but it still fails to identify the practical difference between the word ‘detain’ and ‘apprehend’.
A person who is detained in an ambulance will not be allowed to leave. I infer then that the argument that is at least identified by the Clinical Practice Update is that s 31 allows paramedics to determine that a person who is in their ambulance will not be allowed to leave, but a person who is not yet in the ambulance cannot be compelled, by paramedics, to enter the ambulance. That’s an interesting argument but as with my argument about s 20 of the NSW Act I suspect a court and health practitioners would interpret s 31 in order to make it work. One of the principles relating to involuntary admission and treatment (s 10(b)) is:
… where the person needs to be taken to an approved treatment facility or into custody for assessment, the assistance of a police officer is to be sought only as a last resort and there is no other means of taking the person to the approved treatment facility or into custody;
It is consistent with this principle to read s 31 as allowing paramedics to detain a patient even if they are not yet in their ambulance, and put them into the ambulance and then transport them to the relevant facility.
Criticisms of the Update
I have some problems with the Clinical Services Update. First it says:
There has been frequent discussion recently around the use of the ‘Form 6’ in the current Mental Health and Related Services Act for sectioning of patients with mental illness or mental disturbance…
The current position for St John NT and agreed by NT Health is that form 6 is NOT to be utilised and police are to be requested for sectioning under the current Act.
The issue is not the form, it is the power under s 31. It is not the case that paramedics can use the power under s 31 but chose not to fill the form in. Form 6 is documentation that the powers in s 31 have been used. Further the form is not in, or does not form part of the Act. The Update should say:
There has been frequent discussion recently around the use of the Mental Health and Related Services Act 1998 (NT) s 31 for sectioning of patients with mental illness or mental disturbance…
The current position for St John NT and agreed by NT Health is that s 31 is NOT to be utilised and police are to be requested for sectioning under the current Act…
Second the Update says ‘Although this is currently in the CPM it is not a process endorsed by St John NT at this time.’ I fail to see how a process can be both in the Clinical Practice Manual, that is endorsed by St John, and at the same time not endorsed. It cannot be hard, in this day and age, if the use of s 31 is not endorsed then that should be updated in the CPM. Failure to do that could lead to significant debate about what a reasonable St John paramedic is to do in given circumstances (and see High Court overturns finding of negligence against Queensland paramedic (August 13, 2020) and the discussion of the importance of the clinical practice guidelines in determining the outcome in Queensland v The Estate of the Late Jennifer Leanne Masson [2020] HCA 28).
Complicating matters is the fact that the power under s 31 belongs to paramedics, not St John Ambulance and Form 6 is a government form not a St John form. Regardless of what St John have said, in the right (or wrong) circumstances, paramedics will be called to explain how they made their judgment to use, or not, s 31. In Stuart v Kirkland-Veenstra [2009] HCA 15 Victoria police were not liable for failing to detain or apprehend a man who was contemplating suicide and who did later take his own life. The Court held that the police could not be under a duty to act where they had no power to Act and in that case the circumstances that allowed police to ‘apprehend’ a person under the Mental Health Act 1986 (Vic) (now repealed) did not exist. But that did not address potential liability if the police had refused to apprehend him when they did have the power. If Northern Territory paramedics have the power to detain a person under s 31 but fail to do so and the person comes to harm, then the paramedics could be professionally liable (and St John vicariously liable) for failing to use the tools in their tool-box. The fact that ‘All staff would require training regarding when a patient meets the criteria for sectioning’ is not a reason not to use s 31, it is a reason to ensure that St John gives guidance to its members on how to use the power the parliament has given and clearly intends them to use (Mental Health and Related Services Act 1998 (NT) s 10(b)).
Duty of care
Assuming the patient was competent, the argument ‘that a Form 6 was not necessary, as the Paramedics’ “Duty of Care” justified restraining, sedating, and transporting the patient against their wishes’ is not supported by theory or law – see:
John Stuart-Mill in his famous essay ‘On Liberty’ (p. 18) said (emphasis added):
That the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with[Pg 18] any evil in case he do otherwise.
Medical staff, including paramedics, cannot compel a person, including a mentally ill person, to have treatment because it is in the patient’s best interests without some lawful authority. The authority is found, in the NT, in the Mental Health and Related Services Act 1998 (NT). If paramedics do not have, or do not use the authority granted by s 31 then they cannot justify involuntary treatment by reference to ‘duty of care’.
Where a duty of care exists, it is a duty to provide reasonable care. ‘Normally a doctor [or paramedic] will be under a duty to provide treatment that, in the opinion of the doctor, is reasonably required in the best interests of the patient, but the doctor can be under no such duty where the patient has validly refused consent to the procedure’ (Michael Eburn, ‘Euthanasia and Medical-End-Of Life Decisions:- The Need for Law Reform In Australia’ LLM Thesis University of Newcastle, 1997, p. 106). You cannot have a duty to do what you do not have the lawful authority or power to do (Stuart v Kirkland-Veenstra [2009] HCA 15) and you do not have the power to subject a patient to treatment that they do not consent to unless that power is found elsewhere. The duty arises if there is a power or lawful authority, it is not a source of power or authority (see Doctor cannot require security to detain a competent adult – Part 2 (December 2, 2023)).
Where a patient is competent (and being mentally ill does not mean the patient is not competent) the patient’s consent is required to transform an unlawful touching into something lawful (Collins v Wilcock [1984] 3 All ER 374; Rogers v Whitaker [1992] HCA 58). If the patient’s consent was not required because a paramedic or doctor thought the treatment was necessary in their assessment of the patient’s best interests then consent becomes irrelevant or at best, trivial. The requirement for consent is to allow people, even the mentally ill, to make their own assessment as to what is in their best interests.
Conclusion
I generally agree with the analysis contained in the advice attached to the Clinical Services Update. I can see the argument that the Mental Health and Related Services Act 1998 (NT) s 31 raises a question as to whether paramedics can compel a person who is not yet in their ambulance to come with them even if they do not want to. Interpreting the section as the Department of Health has in both Form 06 and in the publication Transport of Patients Mental Health and Related Services Act 1998 Approved procedure 28A that is s 31 does allow a person to be detained and then transported would be consistent with the principles of the Act. But it is the wording of the section that is the law, and it is not as clear as it could be.
I think however it is poor form for St John Ambulance to direct its staff not to use s 31 (and it is the section, not the form that is important). Paramedics employed by St John have both their own professional obligations and their obligations as employees. As paramedics they have powers granted by s 31 and it behooves St John to give guidance to its staff as to how to use those powers, not to direct them to not use those powers and worse to direct them not to use them as that would impose an obligation upon St John to provide necessary training.
As noted in the advice from Paul Reeves, ‘it is the sole responsibility of each registered paramedic to know, understand, and seek clarification when needed regarding roles, responsibilities and legal obligations in the execution of their professional duties’ but they should be able to look to their employer for guidance. And guidance of ‘don’t do it’ when the use of s 31 is still in the Clinical Practice Manual and when paramedics will, should the question arise, have to personally explain their decision to use, or not use s 31 seems inadequate. Even if it is limited to cases where a patient is in the ambulance and then the paramedic forms the view that the criteria in s 31 are met, then he or she can detain the patient without the aid of police. A case where ‘Paramedics detained and sedated a patient to prevent her from exiting a moving ambulance’ and where ‘Police met the ambulance en route to the hospital and, seeing the patient was now calm and sedated, decided to follow rather than intervene’ seems exactly what is intended by ss 10(b) and 31. In at least those circumstances paramedics can and should rely on s 31 rather than calling on police (Mental Health and Related Services Act 1998 (NT) s 10(b)).
The advice that ‘a Form 6 was not necessary, as the Paramedics’ “Duty of Care” justified restraining, sedating, and transporting the patient against their wishes’ may have been correct in a particular case, in particular if the patient was not in fact competent to give or refuse consent. But if it was intended to communicate general advice that ‘a Form 6 [is] not necessary, as the Paramedics’ “Duty of Care” justifie[s] restraining, sedating, and transporting [a mentally ill] … patient against their wishes’ then it is wrong, unethical and inconsistent with the fundamentals of good paramedic practice.
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.
Brilliant read. I’m interested to see if the changes in the new Mental Health Act will be acted upon by SJA NT, or whether paramedics will be told the same.
Great write up. Unfortunately NT Paramedics have to risk repercussions from their employer SJA when attempting to uphold their responsibilities as an AHPRA-registered health professional. Unfortunately this is not the only arbitrary directive from St John management that goes against best-practice and our responsibility to patients.
Australian Emergency Law 
Brilliant read. I’m interested to see if the changes in the new Mental Health Act will be acted upon by SJA NT, or whether paramedics will be told the same.
Great write up. Unfortunately NT Paramedics have to risk repercussions from their employer SJA when attempting to uphold their responsibilities as an AHPRA-registered health professional. Unfortunately this is not the only arbitrary directive from St John management that goes against best-practice and our responsibility to patients.