I have again been asked about Emergency Examination Authorities under the Public Health Act 2005 (Qld).  Today’s correspondent says:

There is an Emergency Examination Authority job that I have been curious about for a while now. I am a bit troubled by it because I do not know if it was completely legal or not. I have been told that many paramedics and police officers use the EEA as a CARE principle which stands for ‘Cover Ass, Retain Employment’. I have tried to weigh up the possible benefits of putting the patient on an EEA versus the possible adverse effects it could have. I have also looked up legislation and guidelines, but I feel like I have more questions than answers now. 

I know you do not provide advice around actual events, but I was wondering if you could write a blog about appropriate use of EEA and relative legislation in other states and territories. 

I have previously written on the EEA – see all the posts that appear here – https://australianemergencylaw.com/?s=EEA

To reiterate, ambulance officers and paramedics do not detain patients under an EEA. They detain patients using the powers given to them by the Public Health Act 2005 (Qld) s 157B.  Having exercised their powers under that section they write an EEA (s 157D) which they give ‘to a health service employee at the treatment or care place’ (s 157D(4)).  That EEA, written by the ambulance or police officer, then gives the health facility the power to detain the person.

For ambulance and police officers the relevant tests are set out in s 157B(1). That section says:

(1) This section applies if an ambulance officer or police 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.

If those tests are met ‘The ambulance officer or police officer may detain the person and transport the person to a treatment or care place’ (s 157B(3)).

What we can see is:

  • The ambulance or police officer must believe that (a), (b) and (c) are true. This is what we lawyers call a subjective test that is the question is do they believe that (a), (b) and (c) are true, not would a reasonable person believe those things are true or even do they have reasonable grounds to believe those things are true.  If the ambulance or police officer believes those things are true then they can act; if they do not, then they cannot.   If they did not believe those things to be true and did not act and the patient later hurt themselves, the ambulance or police officer would not be liable. Without the necessary belief they do not have the power to detain the person, and without the power to detain they cannot be liable for failing to detain the person (see Stuart v Kirkland-Veenstra [2009] HCA 15 where Victoria police did not think the criteria under the Mental Health Act 1986 (Vic) allowing for police detention had been met and were not liable when Mr Veenstra later committed suicide). 
  • To believe something is to be satisfied that the thing is true.  Merely suspecting or thinking ‘it might be the case that …’ is not the same as believing it. The Lexis Nexis Concise Australian Legal Dictionary (6th ed, 2021, p. 67) says ‘Belief may be something less than knowledge, as a person can hold a belief while having a degree of doubt about the matter, but it is more than mere suspicion: R v Raad [1983] 3 NSW:LR 344.’
  • Paragraph 1(a) requires a belief that ‘the person is at immediate risk of serious harm’.  What time frame is required to be ‘immediate’ and what level of harm constitutes ‘serious harm’ is not defined. The Act would require the police or ambulance office to consider whether the harm is likely to be immediate or perhaps future and whether it is sufficient to be classed as ‘serious’.   The example says that suicide is an example of serious harm so presumably that extends to death whether self-inflicted or not.  So, if the person is about to die that would be an immediate risk of serious harm. If they may die sometime in the future if they do not accept treatment, that is probably not immediate. 
  • Paragraph 1(b) requires a belief that ‘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’.   We can note here that it does not require that the person is no longer competent to make a decision, only that their capacity is subject to a ‘major disturbance’.  The cause of that disturbance is not relevant as it can be one of the matters or listed or another reason.   If there is no disturbance in the person’s mental capacity but they are refusing treatment, even if their decision means they are at ‘immediate risk of serious harm’ there is no power to act. 
  • Paragraph 1(c) requires a belief that the person ‘appears to require urgent examination, or treatment and care, for the disturbance’.   It is not urgent treatment of life threatening injuries but treatment and care for the disturbance to their mental capacity. That may be treatment of life threatening injuries if that is what is causing the disturbance (and see the discussion under the heading ‘Interstate Comparisons’ below). If however the disturbance is say due to a chronic mental illness but what you want to treat is their heart arrhythmia, the Public Health Act criteria may not be met as you do not believe they need urgent treatment of their ‘disturbance’.
  • Finally if the ambulance or police officer believes (a), (b) and (c) then they may detain the person.  The word detain implies to deprive them of their liberty.  If the patient is cooperating and is willing to go with the ambulance or police officers there is no need to detain the patient.

The Public Health Act deals with the patient who is competent but who has ‘a major disturbance in the person’s mental capacity’ and where treatment is required to address the disturbance to their mental capacity.

If the patient is not competent that is they no longer have capacity as opposed to a reduced capacity, or treatment is required to address their physical injuries, then the Guardianship and Administration Act 2000(Qld) is relevant. That Act says (at s 63):

(1) Health care … of an adult may be carried out without consent if the adult’s health provider [which includes a paramedic; sch 4] reasonably considers—

(a) the adult has impaired capacity for the health matter concerned; and

(b) either—

(i) the health care should be carried out urgently to meet imminent risk to the adult’s life or health; or

(ii) the health care should be carried out urgently to prevent significant pain or distress to the adult and it is not reasonably practicable to get consent from a person who may give it under this Act or the Powers of Attorney Act 1998.

(2) However, the health care mentioned in subsection (1)(b)(i) may not be carried out without consent if the health provider knows the adult objects to the health care in an advance health directive.

(3) However, the health care mentioned in subsection (1)(b)(ii) may not be carried out without consent if the health provider knows the adult objects to the health care unless—

(a) the adult has minimal or no understanding of 1 or both of the following—

(i) what the health care involves;

(ii) why the health care is required; and

(b) the health care is likely to cause the adult—

(i) no distress; or

(ii) temporary distress that is outweighed by the benefit to the adult of the health care.

(4) The health provider must certify in the adult’s clinical records as to the various things enabling the health care to be carried out because of this section.

(5) In this section—

health care, of an adult, does not include withholding or withdrawal of a life-sustaining measure for the adult.

If, therefore the criteria in the Public Health Act are not met, and in particular if what is required is treatment of a life-threatening injury rather than treatment of the ‘major disturbance in the person’s mental capacity’ then it is the Guardianship and Administration Act that is relevant. 

Conclusion

In writing about the appropriate use of the Act one cannot do better than look at the words of the section.  It is appropriate to rely on the Public Health Act, and to write an EEA for the benefit of the health facility staff, if an ambulance officer believes that;

  1. Their patient is at immediate risk of serious harm;
  2. The risk is due to a ‘a major disturbance in the person’s mental capacity’; and 
  3. They appear ‘to require urgent examination, or treatment and care, for the disturbance’.

If they don’t believe those things to be true, the use of the Public Health Act is not appropriate even if action of detaining a person and taking them to a treatment facility or other safe place is motivated by concerns for the patient’s welfare. 

Interstate comparisons

It is not practicable to do a comparative analysis of the legislation in each Australian jurisdiction. In short most if not all jurisdictions put something like s 157B in their mental health rather than public health legislation usually with more restricted tests for action.  And the Guardianship type legislation in most jurisdictions does not unambiguously apply to paramedics being limited usually to care by a medical practitioner. In most states where a patient is not competent paramedics rely on the common law of necessity and there is limited if any statutory authority to treat people with impaired competence and in particular to treat their physical rather than mental injuries.

To take NSW as an example (given the amount of times I’ve been asked to write about the Mental Health Act 2007 (NSW) s 20); that section says an ambulance officer may transport a person to a mental health facility (not any health facility) and only if ‘it would be beneficial to the person’s welfare to be dealt with in accordance with … [the Mental Health] Act’.  What I would say to NSW Paramedics is, ‘unless you think the patient needs to see a psychiatrist, the Mental Health Act is not relevant’.  That is the NSW Act does not justify taking a person to a general hospital for treatment of their injuries.

The Queensland Act on the other hand could. For example, if a person is suffering a head injury and as a result of that injury they are at immediate risk of serious harm but, equally, the head injury has caused ‘a major disturbance’ in their ‘mental capacity’ then they could be detained by a Queensland ambulance officer and taken to a hospital for treatment of their head injury that being the cause of their disturbance.  The NSW Act would not apply there as the NSW Paramedics do not want to take the patient to a mental health facility nor do they want the person to be treated under the Mental Health Act because they are not suffering from a mental illness, they are suffering a physical injury. 

The Guardianship Act 1987 (NSW) deals with the provision of consent to medical treatment for those who are unable to consent.  That Act says (s 37(1)):

Medical or dental treatment may be carried out on a patient to whom this Part applies without consent given in accordance with this Part if the medical practitioner or dentist carrying out or supervising the treatment considers the treatment is necessary, as a matter of urgency–

(a) to save the patient’s life, or

(b) to prevent serious damage to the patient’s health, or

(c) except in the case of special treatment–to prevent the patient from suffering or continuing to suffer significant pain or distress.

We can see that the section refers to the opinion of a ‘medical practitioner’ (ie a doctor, not a paramedic; Health Practitioner Regulation National Law (NSW) s 113). Further, s 33 says that medical treatment is treatment ‘normally carried out by or under the supervision of a medical practitioner’ and paramedics are autonomous practitioners, not carrying out treatment ‘under the supervision’ of a medical practitioner.

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.