Today’s correspondent asks
… would you have any advice on the legislation in NSW in relation to the mental health Act and patients who are incarcerated in a correctional facility? For example can ambulance enact a s20 for an inmate after a suicide attempt even though they are already under “suicide watch” in the prison?
Section 20 allows a NSW ambulance officer to transport a patient to a mental health facility ‘if the officer believes on reasonable grounds that the person appears to be mentally ill or mentally disturbed and that it would be beneficial to the person’s welfare to be dealt with in accordance with this Act.’ It begs the question of why an ambulance officer would feel that ‘it would be beneficial to the person’s welfare to be dealt with in accordance with this [Mental Health] Act’ if they are already in a prison where Justice Health is there to provide health services (Crimes (Administration of Sentences) Act 1999 (NSW) s 236A) and where the doctors there could make the necessary referral if treatment under the Mental Health Act was required.
As a matter of application one also has to consider how would it work. If a person is in custody and an ambulance officer says ‘I want to take this person to a mental health facility’ that is not going to work unless the prison authorities agrees. Section 20 is a power in ambulance officers to transport a patient, it is not a section that compels others to cooperate.
The Crimes (Administration of Sentences) Act 1999 (NSW) s 73 says:
(1) A medical practitioner (whether that practitioner is a medical officer or not) may carry out medical treatment on an inmate without the inmate’s consent if the Chief Executive, Justice Health is of the opinion, having taken into account the cultural background and religious views of the inmate, that it is necessary to do so in order to save the inmate’s life or to prevent serious damage to the inmate’s health.
(2) Medical treatment carried out on an inmate under this section is, for all purposes, taken to have been carried out with the inmate’s consent .
In effect the Chief Executive, Justice Health can give consent for medical treatment so the provisions in the Mental Health Act dealing with involuntary treatment are unlikely to be relevant.
The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) deals with the care of the mentally ill in prison. It says (s 86)
(1) The Secretary may, by order in writing, direct that a person imprisoned in, or a forensic patient detained in, a correctional centre or detention centre be transferred to a mental health facility.
(2) The Secretary may make a transfer order on the basis of 2 certificates about the person’s condition issued by 2 medical practitioners, 1 of whom is a psychiatrist.
The ongoing treatment of a prisoner in mental health facility is subject to review by the Mental Health Review Tribunal (see ss 79, 89-93).
Conclusion
My advice is that there are detailed provisions in the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 dealing with the treatment of the mentally ill or cognitively impaired whilst they are in prison. Those provisions apply some parts of the Mental Health Act to prisoners. Given that extensive legislation and the power of prison medical staff to authorise the transfer of prisoners, and the power of the Chief Executive of Justice Health to give consent to the treatment of prisoners, I can see no reason why s 20 or the provisions dealing with the involuntary treatment of people under the Mental Health Act would be relevant.
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Australian Emergency Law 
What is the correct course of action when a paramedic is called to a suicide attempt, and the patient refuses transport, particularly when the onsite medical team is not assisting?
If, after a mental health assessment, the paramedic deems the patient meets the criteria under Section 20 of the Mental Health Act, they surely have the authority to enact it. This would enable them to request assistance from police (or corrections) for safe transport. Paramedics maintain a duty of care to this patient regardless of the setting, and their presence was explicitly requested for clinical assistance
Section 20 applies if a paramedic ‘believes on reasonable grounds that the person appears to be mentally ill or mentally disturbed and that it would be beneficial to the person’s welfare to be dealt with in accordance with this Act.’ The fact that a person is suicidal does not mean they are either mentally ill or mentally disturbed. Suicide could be a very rational response to one’s situation and it would seem could be quite rational if a person was facing a long period in custody. The fact that there is a suicide attempt is not, of itself, sufficient to trigger s 20.
If the paramedic does form the view that ‘it would be beneficial to the person’s welfare to be dealt with in accordance with this Act’ it does not follow that they can insist that they remove the patient from the custody of their gaoler. The paramedic may owe the patient a duty of care but so too does Corrective Services. If the patient does not want to go and the relevant decision maker is not prepared to either give consent on their behalf or order their transfer in accordance with the Crimes (Administration of Sentences) Act then I cannot see anything in s 20 that would allow the paramedic to insist that the patient is released into their care.
There is also the practical issue that if the person is in custody, the paramedic is not going to be able to get them out if the prison authorities don’t want them to.
I think the comment by Christopher Cousins gives an excellent analysis and suggestion. If you really think the patient is mentally unwell and is not receiving adequate care for example because they are in a general prison unit and not in a medical unit so there are no Justice Health staff there to make a decision, then the best the paramedic can do is advocate for their patient and make sure to document their concerns.
Fundamentally it is the Mental Health and Cognitive Impairment Forensic Provisions Act that is ‘the legislation in NSW in relation to the mental health [of people] … who are incarcerated in a correctional facility’ not the Mental Health Act (but see s 71 of the Mental Health … Forensic Provisions Act which says ss 69A, 70, 71-72A and 73 of the Mental Health Act ‘… apply with respect to forensic patients and correctional patients’.)
Hi Michael, and thank you for your past, and hopefully ongoing advice. It has been invaluable to many of us.
Placing myself in the shoes of the correspondent (assuming they are a paramedic) I think there are perhaps some secondary considerations to be had, given Paramedic Practice is now regulated under the National Law.
Without citing relevant clauses – the Code of Conduct – adopted by the Paramedicine Board under the Health Practitioner Regulation National Law 2009 (NSW) (s 39 I think) – ultimately reflects what you have said so often. Our focus must be on the patient’s best interests.
I would contend a paramedic in the situation contemplated must first objectively and adequately assess the person, and all the relevant circumstances. They must then apply sound clinical reasoning and judgement to any findings and the circumstances the person is in.
The corespondent does not say whether the person is on suicide watch in a mental health unit or other a health facility in the prison. They just that they are on suicide watch. That may be in their usual cell in the general population or in an appropriate facility.
Either way, the paramedic is required, as you have said many times, under the Code, to put the patient’s best interests at the forefront of any decision. In my mind, much would depend on the circumstances of the person in gaol. If in a health facility within the gaol and the paramedic is satisfied they are not only on “suicide watch” – but on such watch in an appropriate facility – and under appropriate care – and receiving appropriate Rx, If so, then the paramedic would have no genuine reason to rely on s 20. However, if not so, then the paramedic would be obliged to advocate for the person to be moved to an appropriate section of the gaol.
While it may be the case that if the paramedic forms the reasonable beliefs required by s 20, the Act would authorise them to take that person to a DMHF – even if they do not want to go – there may be other legislation they will not be aware of that might give prison guards the authority to stop them doing so.
If that is the case, the paramedic would be expected to advocate for the person based on their clinical assessment and their determination as to whether the provisions the gaol has in place are adequate.
I contend ultimately, a paramedic in such a position could be in a very difficult position indeed. There is no doubt in my mind that regardless of the authority the gaol has under statute, the paramedic would be required under the Code to advocate for the person. To try, as best they can, to ensure they are provided appropriate care they need in an appropriate environment.
I have no idea of the hierarchy of responsibility in the gaol, but if they believe the person is not receiving appropriate care, they would be obliged under the Code to advocate for the patient.
If that means working their way up the chain of command – even waking someone up – to ensure the patient is cared for appropriately, I contend that is what the paramedic is obliged to do.
Having said that – I would truly hate to find myself in such a position.
I truly feel the full affect of regulation is yet to hit paramedics in the face. It will take time (and sadly, a number of adverse findings) for paramedics to truly appreciate the seriousness of regulation under the National Law.