A Queensland paramedic has written and said:
I want to ask you about the Emergency Examination Order (s33), a tool used by Queensland Ambulance Service (QAS) and Queensland Police Service (QPS) officers to transport a patient to an authorised mental health facility. I believe that these powers are used inappropriately majority of the time, but because the public believe QAS to be working in the best interest of the patient at all times, no one seems to examine the validity of most EEO’s.
… In my own understanding of the act … section 33 is for the involuntary transport and assessment of a person who is reluctant to seek help and refused an offer of transport. I believe this is the purpose of the act, and so I feel there are times when it is misused. Here are some very common examples:
1. A teenage girl calls 000 because she struggles with depression, and recognising that she has been thinking about hurting herself, asks for an ambulance to take her to hospital for help. The crew agree and on arriving to hospital, they place the girl under and EEO.
2. A woman suffers from a psychiatric disorder, and has episodes of emotional outburst that worry her family. The family contact 000 for assistance. The ambulance attends, and the patient states she has no intention of hurting herself or anybody else, she is just very upset. She refuses transport to hospital and so she is transported under an EEO.
3. A person has contacted 000 for transport as she suffers depression and knows she often has self-harm thoughts when she becomes depressed. On arriving to the hospital, the triage nurse insists the patient be places under an EEO because it is a particularly busy evening and it will be hard to ‘keep an eye’ on the person.
4. A family has an adult son who suffers from a mental health disorder. In the past, this person has displayed withdrawn behaviour before harming himself. In an effort to prevent self harm, the family have called 000 and wish their son to be taken to hospital. The person refuses transport, and appears withdrawn. A ‘just-in-case’ EEO is written after the patient is transported to hospital against his will.
5. A 16-year old girl has taken a number of paracetamol after breaking up with her boyfriend, in an effort to express how hurt she is. Her boyfriend contacts 000, concerned for her wellbeing. On arriving to the home, the girl confirms that she tried to hurt herself in an effort to teach her boyfriend a lesson. She refused transport. She is placed under an EEO.
6. An adult male contacts 000 for transport as he has suffered with undiagnosed depression and anxiety following a work incident. He expresses no thoughts of self-harm of suicidal ideation. The QAS crew place the person under an EEO on arrival to hospital, as they believe ‘if he walks out of hospital and in front of a truck, it’s my arse that will be on the line’.
Obviously, a number of legal and ethical factors are at play in these situations. The issue of capacity is a significant one that applies to our patients under 18 years of age. In my understanding, a minor cannot be placed under an EEO, as how can a valid refusal be taken from a patient lacking legal capacity? Furthermore, the practice of placing patients under EEO’s as a protection for QAS officers appears unlawful and unethical.
I believe the sole purpose of section 33 is to transport a person for assessment despite the presence of a valid refusal. If a person volunteers to be transported, what requirement is there to place them under an EEO? This means the person is required to remain at the facility for no more than 6 hours, and health records will reflect a history of signifiant mental illness (limiting some paths of employment or achievement).
Could you please shed a little light on the act Michael? I don’t feel the act remedies every situation, but I do feel that Paramedics are acting unlawfully by placing many people under EEOs. I’m happy to be wrong so long as I’m not acting unlawfully.
This is an interesting and complex question and I note that there is a proposal to give similar powers to paramedics in the ACT. I have been working , with Ruth Townsend and Ellen Bradley (who completed her law honours with me last year) to write a paper on the ACT proposal that we will submit to the Australian Journal of Paramedicine, so watch this space…
Turning now to the Queensland provision and the given scenarios. The Mental Health Act 2000 (Qld) s 33 says:
This subdivision applies if a police officer or an ambulance officer reasonably believes—
(a) a person has a mental illness; and
(b) because of the person’s illness there is an imminent risk of significant physical harm being sustained by the person or someone else; and
(c) proceeding under division 2 would cause dangerous delay and significantly increase the risk of harm to the person or someone else; and
(d) the person should be taken to an authorised mental health service for examination to decide whether a request and recommendation for assessment should be made for the person.
The Act goes onto say that a police officer or ambulance officer must take the person to an authorised mental health service (s 34) and there they must complete an emergency examination order using the appropriate form and deliver it to an employee of the mental health service (s 35). The order having been made the person may be detained for up to six hours in order to be examined by a medical practitioner (s 36).
A mental illness is ‘Mental illness is a condition characterised by a clinically significant disturbance of thought, mood, perception or memory’ (Mental Health Act 2000 (Qld) s 12).
Having set out the section the effect is reasonably clear. Remember that the policy in mental health is to respect, to the greatest extent possible, the person’s rights including the right to self determination. We have moved away from institutionalising the mentally ill so detention must be an action of last resort (see Stuart v Kirkland Veenstra  HCA 15; Mental Health Act 2000 (Qld) ss 8 and 9)).
In order to lawfully exercise their power under s 33 officers must be satisfied that the relevant criteria exist. Let us then look at the scenarios given:
1. This patient is consenting to medical treatment. On the story we’ve been given there is no evidence of mental illness nor given her willingness to accept transport, evidence that there is an imminent risk of physical harm. It should be noted that evidence of an intention to self harm or even to kill oneself is not evidence of a mental illness (Stuart v Kirkland Veenstra  HCA 15; ‘the fact that a person has attempted suicide or prepared to attempt suicide is not of itself sufficient to support an inference that the person is mentally ill (French CJ at ); see also Gummow, Hayne and Heydon JJ at -; Crennan And Kiefel JJ -). The use of an emergency examination order in this case is both unnecessary and contray to the intention of the Act set out in ss 4, 8 and 9.
2. This story reveals nothing to suggest either a mental illness or an imminent risk of significant physical harm. Detaining the person would be unlawful.
3. If paramedics are going to be regarded as professionals it is their duty to exercise their own judgement. The power under ss 33-36 is a power vested in paramedics, not a power to be exercised under direction by someone else. If the paramedic did not think the criteria for the making of an order existed, then to make the order to assist the nurse, would not be a good faith decision and would be unlawful. Given the person is at hospital and not currently threatenting themselves, how could it be the case that ‘proceeding under division 2 would cause dangerous delay and significantly increase the risk of harm to the person or someone else’ (Division 2 deals with the assessment of mental illness by a medical practitioner).
4. A ‘just in case’ EEO is not authorised by law.
5. People, including the mentally ill, are entitled to refuse transport. A person can consent to medical treatment, and by implication refuse consent, if they are old enough and sufficiently mature enough to understand the advice they are given and to be able to rationally process that advice. The fact that they do not come to the same conclusion as the person giving the advice does not mean they are incompetent or mentally ill. As this person is a child it would be appropriate to contact the Department of Communities to seek their assistance but treatment cannot be justified under a pretense that the person meets the criteria listed in s 33.
6. The person ‘expresses no thoughts of self-harm of suicidal ideation’ so s 33 is not brought into play.
My correspondent is correct, ‘the practice of placing patients under EEO’s as a protection for QAS officers appears unlawful and unethical’ and, what is more, would not in my view (in the circumstances described above) be an action taking in good faith for the purposes of the Ambulance Service Act 1991 (Qld) s 38 (Powers of authorised officers) and s 39 (Protection from certain liability).
It’s not good faith to decide to treat someone in a way you think is good for them if they refuse that treatment and are competent to do so. It is certainly not good faith to rely on a provision in circumstances where it is not only intended not to apply but clearly on its face does not apply.
As for the assertion ‘if he walks out of hospital and in front of a truck, it’s my arse that will be on the line’ that is both wrong and unprofessional. It is wrong as personal autonomy is a key principle in the law and there is no duty to act when there is no power to act. In Stuart v Kirkland Veenstra members of Victoria police did not take a man into custody who had been sitting in his car with a pipe leading into the car from the exhaust. They spoke to the man and formed the view that he was not mentally ill (which had a smilar definition to that in Queensland). There was no evidence of ‘significant disturbance of thought, mood, perception or memory’ and so the power under the Mental Health Act 1986 (Vic) s 10 did not come into play. Further even though he was in a car with a pipe there was no evidence that the engine was on or had been on, he was not and had not attempted suicide. In the circumstances the police felt they had no power to detain the man and they did not. He later went home and took his own life. The High Court agreed and set the precedent that there was no duty to act in those circumstances. The Act was to ensure those that were mentally ill and a danger to themselves received treatment, it was not a general provision to prevent a suicide, suicide being no longer illegal nor of itself, evidence of mental illness.
The Victorian Act and the Queensland Act are certainly not there to provide a salve to the emotions of paramedics by allowing them to detain people to protect their own interest or to ease the burden on an emergency unit. A paramedic exercising powers under the Act must have regard to ss 8 and 9. Section 9 says:
A power or function under this Act relating to a person who has a mental illness or intellectual disability must be exercised or performed so that—
(a) the person’s liberty and rights are adversely affected only if there is no less restrictive way to protect the person’s health and safety or to protect others; and
(b) any adverse effect on the person’s liberty and rights is the minimum necessary in the circumstances.
In my view, and given the limited stories we’ve been told, detaining a person under the Mental Health Act in any of the circumstances described would not be justified, it would be unlawful, it is not required by any common law conception of duty of care and would not be acting in good faith. There will of course be many cases that would not be as clear as the one’s described above. Being prepared to make judgments in those cases is what is required if paramedics are to be considered members of a profession.