Paramedics in line for powers to arrest” is the heading of a story appearing in today’s Canberra Times (see also the response from the ACT Opposition, also in the Canberra Times: Arrest legislation treads fine line: Liberals). The story was also the subject of an interview with ACT Chief Minister Katy Gallagher on Radio National’s Breakfast program (listen at ACT Proposal: Power For Paramedics To Arrest Mentally Ill). In light of recent discussions in the news and on paramedic blog sites regarding assaults on paramedics it may be thought that the story is suggesting that paramedics will be given the power to arrest people for criminal offences and that also seems to be implied in the liberal party’s response (see above), but that is not the case.

The story is reporting proposed amendments to ACT Mental Health laws contained in the Review of the Mental Health (Treatment and Care) Act, 1994 Second Exposure Draft. Part of that proposal is to add statutory authority to allow paramedics to detain people who they believe are mentally ill and to transport them to a health institution for assessment. This may be new for the ACT but it is not unprecedented. Ambulance officers or paramedics have the power to detain, and in some cases administer treatment to control behaviour in New South Wales (Mental Health Act 2007 (NSW) s 20), the Northern Territory (Mental Health and Related Services Act 1998 (NT) s 31), Queensland (Mental Health Act 2000 (Qld) ss 32-36) and South Australia (Mental Health Act 2009 (SA) s 56). For a detailed discussion of these provisions see (or look away now to avoid “related and subtle” product promotion) my book Emergency Law (Federation Press, 4th ed, forthcoming).

The proposed amendments would, amongst other things, amend s 37(1) of the Mental Health (Treatment and Care) Act 1994 (ACT). That section currently says:

(1) If a police officer has reasonable grounds for believing that a person is mentally dysfunctional or mentally ill and has attempted or is likely to attempt—
(a) to commit suicide; or
(b) to inflict serious harm on himself or herself or another person;
the police officer may apprehend the person and take him or her to an approved health facility.

If the proposed amendment proceeds, that section will be changed to read ‘police officer or ambulance paramedic’. Ambulance paramedic will be defined to mean “a member of the ambulance service employed as a paramedic” which is of course circular.

The proposed amendments also add a new s 37(4) which will say:

… a police officer, ambulance paramedic, doctor or mental health officer may—
(a) use the force and assistance that is necessary and reasonable to apprehend the person and take him or her to the facility; and
(b) if there are reasonable grounds for believing that the person is at particular premises—enter the premises using the force and assistance that is necessary and reasonable; and
(c) carry out a frisk search or ordinary search of the person if there are reasonable grounds for believing that the person is carrying anything—
(i) that would present a danger to the police officer, ambulance paramedic, doctor, mental health officer or another person; or
(ii) that could be used to assist the person to escape from police officer’s, ambulance paramedic’s, doctor’s or mental health officer’s custody.

Frisk search means “(a) a search of a person conducted by quickly running the hands over the person’s outer garments; and (b) an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person”.

It seems to me good sense to allow paramedics to detain a mentally ill person, against their will and to take them to a health facility for assessment. That reflects some fundamental propositions first that mental illness really is an illness, a health issue, that health professionals rather than law enforcement officials should deal with and second that the mentally ill do deserve and are entitled to the treatment they require so should be taken to receive that care even if, because of their illness, they cannot consent. Not treating them would be the same as leaving the unconscious as they cannot consent. Paramedics do not have special powers to treat the unconscious; the law of necessity (discussed in many earlier posts but see most recently “Withholding Resuscitation in Victoria”) justifies that treatment. That doctrine would also justify the treatment of the mentally ill if they are not capable of giving or refusing consent but making that judgment, when faced with a person who is clearly conscious and able to express their wishes, is difficult so statutory authority may give the paramedics some confidence that their actions are justified.

As for the power to arrest a person who commits a criminal offence (such as assault on a paramedic) that power already exists. Every person has the power to arrest, in the ACT that is set out in the Crimes Act 1900 (ACT) s 218 which says:
Power of arrest without warrant by other persons

(1) A person who is not a police officer may, without warrant, arrest another person if he or she believes on reasonable grounds that the other person is committing or has just committed an offence.
(2) A person who arrests another person under subsection (1) shall, as soon as practicable after the arrest, arrange for the other person, and any property found on the other person, to be delivered into the custody of a police officer.

The power to make a ‘citizen’s arrest’ exists in all jurisdictions in both statute and common law (see Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 100; Criminal Code (NT) s 441; Criminal Code (Qld) s 546; Criminal Law Consolidation Act 1935 (SA) s 271; Criminal Code (Tas) s 27 (but only with respect to listed offences); Crimes Act 1958 (Vic) s 458; Criminal Investigation Act 2006 (WA) s 25). This power of arrest is exercised everytime someone detains another person who they have seen committing an offence and who is held pending the arrival of the police. Without lawful authority (and there’s plenty of it) that would be an unlawful arrest and the tort of false imprisonment.

Michael Eburn
26 April 2013