Following my post Paramedics wanting to revoke Queensland Emergency Examination Authority (EEA) (August 6, 2025) I received this researched and referenced follow up question:

Frequently I read EEAs and in the “Reasons you believe this person has a major disturbance of mental capacity” box is nothing to do with capacity and had felt them to be poorly written and unlikely to stand up if placed under legal scrutiny.

Personally, when I write EEAs I (maybe wrongly) have been trying to justify a lapse in one or more elements (Understand relevant information, retain the information, use or weigh the information, communication the views). Drawing from the QLD Mental Health Act capacity assessment guide.  https://www.health.qld.gov.au/__data/assets/pdf_file/0025/860524/LRW_Capacity_Assess_Form_Adults.pdf.

With the understanding that:

MENTAL HEALTH ACT 2016 – SECT 14

Meaning of capacity to consent to be treated

14 Meaning of capacity to consent to be treated

(1) A person has “capacity” to consent to be treated if the person—

(a) is capable of understanding, in general terms—

(i) that the person has an illness, or symptoms of an illness, that affects the person’s mental health and wellbeing; and

(ii) the nature and purpose of the treatment for the illness; and

(iii) the benefits and risks of the treatment, and alternatives to the treatment; and

(iv) the consequences of not receiving the treatment; and

(b) is capable of making a decision about the treatment and communicating the decision in some way.

(2) A person may have “capacity” to consent to be treated even though the person decides not to receive treatment.

(3) A person may be supported by another person in understanding the matters mentioned in subsection (1) (a) and making a decision about the treatment.

(4) This section does not affect the common law in relation to—

(a) the capacity of a minor to consent to be treated; or

(b) a parent of a minor consenting to treatment of the minor.

I feel I had miss-read your previous comments on this topic and had come to the conclusion that if I could demonstrate a patient had capacity, they would not meet criteria for EEA despite any apparent risk involved.  However, if I now interpret correctly an EEA is intended to also apply to a competent patient. Though it is untested if courts would consider competence a factor.

I still struggle and I’m sure others do too with the ill-defined “significant” “major” and how “disturbance of mental capacity” is somehow different to regular old capacity.

I feel for the thousands of people that a subjected to EEAs each year many of them that are assessed in the Emergency department but not admitted.  It strikes me that for the vast majority of the depressed, anxious and intoxicated that are most commonly subject to EEAs, community mental support would best balance autonomy, beneficence, nonmaleficence and justice.

Quotes from a study by Clough 2023 taking a convenience sample of EEAs written at five hospitals across a region during the period of April 2017 and December 2020:

“Additionally, since neither QPS nor QAS maintains an archive of EEA forms, any comprehensive evaluation of the impacts of Queensland’s new approach to mental health legislation is particularly challenging and none has been conducted.”

“…although in just 57% (n = 534/942) of EEAs section 9 had been completed with an outcome of the examination of the person recorded, among the 534 with recorded outcomes, 22% were in the category ‘admitted and/or recommendation for assessment made under MHA 2016’, while the great majority (78%) were in the ‘examination, treatment, care, discharge, EEA ended’ category.”

“Our study suggests that this reasoning became operationalised with 78% of persons subject to an EEA discharged following examination and treatment and just 22% admitted or recommended for assessment under the MHA 2016(Table 2).”

“An outcome of the involuntary examination of the person detained in the ED recorded on the prescribed form in only 57% of EEAs implies, disturbingly, that up to 43% of patients may have been deprived of their liberty without the required clinical decision regarding their care.”

That research tells me that a majority of EEAs are written unnecessarily, and a majority of the patients affected are having their rights stripped away unnecessarily. I don’t like those odds.  With the aid of mental co responder models and on call mental health support for paramedics I can’t see any excuse for why we are so bad.

Instead of being a patient ally, considering a patient’s wants and needs, and focussing on person centred care and delivering the care in a time and place and method that works for the patients EEAs are an ass covering exercise for paramedics and so culturally ingrained I don’t see changes happening.

Another study by Clough in 2021 reports:

“Unfortunately, under the new legislation, comparable information for EEAs, initiated under the amended PHA, is no longer readily available. It has become impossible to examine such trends and patterns for all EEAs as EEAs are now only declared in the Chief Psychiatrist’s annual reports where the EEA was made prior to a recommendation for assessment under the MHA 2016 (Fig. 1) without distinguishing between QPS- and QAS-registered EEAs.1, 4 For the balance of EEA presentations, no information is publicly reported. This information gap potentially means that the use of this legal intervention, designed to address the needs of persons experiencing a major disturbance in their mental capacity, cannot be thoroughly scrutinised and the resource needs of Queensland hospital EDs, QPS, QAS and community-based support services cannot be robustly evaluated.”

With a lack of ability to investigate and scrutinise I don’t see that change will happen.

As paramedics we are a scared bunch; afraid of being placed in front of the coroner or going to court and often willing to sacrifice patient autonomy and liberty to protect our own skin.  What level of evidence would be required to demonstrate that a patient does or does not have a major disturbance of mental capacity?

You have previously commented that the law is not self executing but could you please comment of the potential legal consequences of an inappropriately or poorly written EEA in contrast to the consequences of a patient assessed to not meet criteria that then dies or comes into significant harm.

Clough, A. R., Evans, A., Graham, V., Catterall, J., Lakeman, R., Gilroy, J., Pratt, G., Petrucci, J., Orda, U., Sehdev, R., Thornton, N., Das, S., Yearsley, G., & Stone, R. (2023). Emergency examination authorities in Queensland, Australia. Emergency Medicine Australasia, 35(5). https://doi.org/10.1111/1742-6723.14201

Clough, A. R., Evans, A., Grant, K., Graham, V., Catterall, J., Lakeman, R., Gilroy, J., Pratt, G., Petrucci, J., & Stone, R. (2021). Recent amendments to Queensland legislation make mental health presentations to hospital emergency departments more difficult to scrutinise. Emergency Medicine Australasia, 34(1), 130–133. https://doi.org/10.1111/1742-6723.13878.

Let us move away from EEA’s, they are not the issue. The issue is the exercise of powers under s 157B.  Section 157B(1) sets out when the section applies.  In this discussion I’m focussing on ambulance officers. Relevantly the section says:

This section applies if an ambulance officer … believes—

(a) a person’s behaviour, including, for example, the way in which the person is communicating, indicates the person is at immediate risk of serious harm; and

Example—

a person is threatening to commit suicide

(b) the risk appears to be the result of a major disturbance in the person’s mental capacity, whether caused by illness, disability, injury, intoxication or another reason; and

(c) the person appears to require urgent examination, or treatment and care, for the disturbance…

The first issue is that the section depends on the ambulance officer’s belief.  The test does not require a belief ‘on reasonable grounds’ so it is an entirely subjective test – does the ambulance officer believe that the circumstances in (a), (b) and (c) apply.  But ‘believe’ requires more than just a thought that ‘it might be possible’.  Belief requires an actual state of mind – a persuasion that something is true.  In R v Rondo [2001] NSWCCA 540, Smart JA (with whom Spigelman CJ and Simpon J agreed) said (at [135]) ‘There has to be a belief, not merely a suspicion. A hunch is insufficient. Facts which may ground a reasonable suspicion are often not sufficient to ground a reasonable belief’.  To borrow from some training materials that we used when I was teaching these concepts at Charles Sturt University, belief is:

A state of mind that accepts a fact as true. Generally, this state of mind requires less evidence and conviction than “to be satisfied” but requires more evidence and conviction than to simply “suspect”.

An ambulance officer who thinks ‘I don’t know if they have a disturbed mental capacity, but they might have so the safe thing to do is take them in’ does not have the necessary belief.

Paragraph (a) requires a belief that the ‘the person is at immediate risk of serious harm’.  Those concepts are not defined, and different people may have different concepts of what is ‘immediate’ and what is ‘serious harm’.  The example of ‘a person is threatening to commit suicide’ gives some guidance.  Suicide, if successful, leads to death so a risk of death is ‘serious harm’ but so would something short of death eg a risk of permanent injury or disability.  If the matter was ever tested the ambulance officer would need to show that he or she had considered whether the risk to the person was ‘immediate’ and ‘serious’.   If they have drawn their mind to those issues and come to a conclusion that the test is met that is likely to be sufficient.  A court will not substitute its decision unless the reasoning of the ambulance officer was so unreasonable that no-one could believe that they were seriously trying to apply the test (Associated Provincial Picture House v Wednesbury [1948] 1 KB 223; Civil Liability Act 2003 (Qld) s 36(2)).

Having decided that (a) applies, the ambulance officer has to move on to consider (b) –is the immediate risk of serious harm ‘the result of a major disturbance in the person’s mental capacity, whether caused by illness, disability, injury, intoxication or another reason’.  The use of the term ‘mental capacity’ in that context is not the same as their capacity to give or refuse consent to medical treatment. If they meant ‘capacity to consent to be treated’ they would have said that, given that that phrase is defined in the Mental Health Act.

Equally the term ‘a major disturbance in the person’s mental capacity’ does not mean ‘mentally ill’ as defined in the Mental Health Act 2016 (Qld) s 10 (if they meant ‘mentally ill’ that’s what they would say).  The reasons Acts like the Public Health Act and the Mental Health Act 2007 (NSW) ss 20 and 22 don’t use the term ‘mentally ill’ is so that ambulance officers and police officers don’t have to come to a clear conclusion that all the criteria for that diagnosis are met. The Mental Health Act 2016 (Qld) s 10(4) says ‘A decision that a person has a mental illness must be made in accordance with internationally accepted medical standards’.  Paramedics and police in the street are not able to apply those standards so the threshold test for action is lower, they don’t have to believe that the person has a mental illness, only that there is a ‘major disturbance’ in the person’s ‘mental capacity’.   The use of the adjective ‘major’ tells us that it’s not any disturbance, the ambulance officer has to believe that it is an ‘important, serious, or significant’ disturbance.

A person may have a ‘disturbed’ capacity but still be competent.  A person may well be able to take on board the officer’s advice about their condition and need for treatment but decide to reject that advice because their depression is such that they cannot see the point in receiving care or their paranoia is such that they believe that if they are taken to hospital the hospital will feed them to the lizard people.  But not every belief that leads to a dangerous outcome is necessarily disturbed.  People are allowed to believe whatever they chose including, for example, in the presence of an almighty God who will intervene here on earth on their behalf. A disturbed capacity is not evidenced simply by beliefs that the ambulance officer thinks are wrong or perverse.

Further, being mentally ill and competent are not synonyms.  People can be mentally ill but still competent; people may not be competent to make decisions about their health care, but not be mentally ill. 

If all of that is correct, what the ambulance officer has to consider is:

  • Do I believe that this person is at an immediate risk of serious harm?
  • Do I believe that they have ‘a major disturbance in [their] mental capacity’?
  • And do I believe that the immediate risk of serious harm is caused by or is due to that disturbed mental capacity?’ 

If the answer to any of those questions is ‘no’ then there is no power to act under s 357B.  If the answer to all of those questions is ‘yes’ then the ambulance officer has to consider ‘Do I believe that ‘the person appears to require urgent examination, or treatment and care, for the disturbance?’(emphasis added).  If you think they need urgent treatment for their broken leg or their intoxication, but they are refusing treatment because of their beliefs or mental illness, then you are not taking them for assessment or treatment of their disturbed mental capacity.

The EEA (and its equivalent in other jurisdictions) is not a justification to treat people who are incompetent and who need care eg an intoxicated person.  If a person does not have the capacity to consent to be treated then the common law and provisions such as the Guardianship and Administration Act 2000 (Qld) apply (see Authority for paramedics to provide urgent treatment under the Guardianship and Administration Act 2000 (Qld) (July 4, 2025)).

Comments

It is absolutely the case that ‘the vast majority of the depressed, anxious and intoxicated that are most commonly subject to EEAs’ would be better supported by ‘community mental support’.  That is the whole rationale behind modern mental health legislation and a move away from involuntary treatment.  An EEA is an example of involuntary treatment and should only be applied in circumstances described. 

With a data set of only my discussions with paramedics and writing this blog since 2009 I am sure many interpret provisions such as the EEA, or s 20 in NSW in order to not just ‘cover their arse’ but to also impose treatment that they genuinely believe is in the patient’s best interests but also in ways that are not intended by the legislature.  The problem health professionals face is when people refuse treatment that the health professional thinks they should accept. No-one has a problem with a person refusing treatment that the professional also agrees is likely to be futile or the benefit marginal.   And I think most professionals can accept the right of people to refuse treatment when it’s not all that significant. But professionals have a problem watching people refuse treatment if they think that as a result they are going to die and not just ‘die sooner than they need to’ but ‘die now – in front of me’.  And professionals have a problem when people refuse treatment for reasons that they think are unreasonable. But it’s no more unreasonable to think that the lizard people run the hospital than it is to think that an omniscient God is making decisions on our behalf and in our best interests. In each case it’s a matter of faith and whether that explanation makes sense of the world as they perceive and understand it.

So rather than judge the rationality of a person’s belief, the test becomes one of mental illness.  As noted that is defined in the Mental Health Act s 10.  It is a ‘a condition characterised by a clinically significant disturbance of thought, mood, perception or memory’. It is not to be decided because a ‘person holds or refuses to hold a particular religious, cultural, philosophical or political belief or opinion’ even if that opinion means that they will not accept recommended medical treatment.

Question

The ultimate question I was asked was:

You have previously commented that the law is not self executing but could you please comment of the potential legal consequences of an inappropriately or poorly written EEA in contrast to the consequences of a patient assessed to not meet criteria that then dies or comes into significant harm.

If an ambulance officer does not believe that the criteria set out in s 157B exist but detains the patient anyway – perhaps thinking the criteria might apply and it’s the ‘safer’ option – then the result, should the matter ever get tested, would be that the ambulance officer would be liable for the torts of assault (if they touched the patient) and false imprisonment.  If they fail to properly recorded their reasons on the EEA then the hospital may determine that they are unable to detain the patient because there is no reason given to justify that action.  If they do detain the patient they too may be liable for false imprisonment.

If a patient is assessed and the ambulance officers determine that the criteria in s 157B are not met, so they do not detain the patient and the patient comes to ‘signficiant harm’ then so be it.  That is in fact the exact circumstances that gave rise to the case of Stuart v Kirkland-Veenstra [2009] HCA 15.  In that case members of Victoria Police found a man in his car with a pipe leading from the exhaust into the cabin but the motor was not on, nor had it recently been on.  The police spoke with him and formed the view that he did not appear to have a mental illness as required by the (then) Mental Health Act 1986 (Vic) s 10.  As French CJ said at [10]-[11]:

The officers felt the bonnet and radiator of the vehicle, both of which were cold. They asked Mr Veenstra about his employment and asked whether he had prior dealings with the police. They asked whether he wanted them to contact his wife or to take him to see a doctor or to drive him home. He declined their offers of assistance. He said he would see his own doctor later on. Mr Veenstra told DSC Stuart that he wanted to go home and speak to his wife about his marital problems. The two officers had observed a vacuum cleaner in the rear of the car. There were no exhaust fumes in the car…

Both officers were of the opinion that Mr Veenstra showed no signs of mental illness. He appeared to them to be rational, cooperative and very responsible the entire time. During their conversation he removed the hose from the exhaust and placed it in the vehicle. He did this of his own initiative and not as a result of any suggestion made to him by the officers.

The court said that the officers could only be under a duty to intervene if they had a power to intervene, and their only power to intervene was in the Mental Health Act. If they did not believe that the criteria under that Act were met then there was no power and so could be no duty and in the absence of any duty to act, no liability.

As Crennan and Kieffell JJ said (at [150]):

Absent the holding of an opinion that the plaintiff’s husband was mentally ill, the power to apprehend was not available. A condition necessary to the power did not exist in law. It follows that, in the circumstances of this case, the statutory provisions supplied no relevant statutory power to which a common law duty could attach.

If ambulance officers do not believe the provisions in s 157B apply then they cannot detain the patient and transport them to hospital nor write an EEA.  If the person later comes to harm it does not prove that the assessment was wrong nor can it establish any breach of a common law duty as there cannot be a duty to do what one cannot lawfully do. 

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.