This question comes from a person working with NSW Ambulance. My correspondent writes:
Recently a crew was called to a federal government detention facility, to attend an unwell individual with a non-English speaking background and a well-known mental health history to the staff. The patient was having a psychotic episode and was unable to consent to treatment (although compliant to be loaded into the ambulance). NSW Police Force were requested to attend but refused as they have no jurisdiction to section or schedule a patient on commonwealth property. There was no approved Medical Officer onsite that could schedule the Patient and the contract security staff were unwilling (nor should they need to as they have no medical training) to authorise treatment. In the case of the patient requiring to be chemically restrained and transported, would this be considered assault under a federal law? The state law was well known to the attending paramedics but they were reluctant to treat for fear of legal ramifications. Secondly does a NSW Paramedic have the authority to schedule a patient in a commonwealth run facility? I have not been able to find an answer from anywhere and every NSW Ambulance employee I have asked have given a different answer.
Any clarification on this issue would be greatly appreciated.
For an answer to a related question, dealing with a response by the RFS, see Responding onto defence areas (June 1, 2014).
When we’re told the person is in a ‘federal government detention facility’ I’ll assume that is a detention centre run for the purposes of the Migration Act 1958 (Cth). I will assume, without verifying it, that the detention centre is a Commonwealth place for the purposes of the Commonwealth Places (Application of Laws) Act 1970 (Cth). That Act says (at s 4(14)):
Without limiting the effect of any other law of the Commonwealth, it is declared that the powers of a person under the law of a State may be exercised in that State in respect of an act done in that State notwithstanding that the act was done in or in relation to a Commonwealth place and the provisions of the laws of the State have effect in relation to anything done by a person in the exercise of a power referred to in this subsection.
In essence that says that State laws apply on Commonwealth places in that state. This removes the need for the Commonwealth to write laws that equate to all the state matters to apply on their premises. This will be true unless there is a specific, inconsistent Commonwealth law in which case the Commonwealth law will prevail (Australian Constitution s 109. See also the opening words of s 4(14), ie the section does not limit ‘the effect of any other law of the Commonwealth’ so if there was another law of the Commonwealth that limited the ability of someone to exercise a power under State law, that would apply – it would not be limited – and the state law would be appropriately restricted to allow the Commonwealth law to apply in accordance with its terms).
The complication here is that the person is in detention and so not at liberty and their consent may not be relevant. The Migration Regulations 1994 (Cth) provide that the Secretary of the Department can consent to medical treatment for detainees and any treatment that is then given is deemed to have been given with their consent (reg 5.35). That regulation is not really applicable and is intended to give the Secretary the power to deliver ‘nourishment and fluids’ (ie to deal with those on a hunger strike) rather than emergency care or emergency mental health care. That is the only provision in the Act or Regulations dealing with medical care so there is no other relevant Commonwealth law to apply here.
It follows that the NSW Police could exercise their authority under the Mental Health Act 2007 (NSW) (s 21) as could the paramedics (s 20). If that were not the case the authority of the paramedics to carry scheduled drugs would lapse on a commonwealth place but clearly they continue to be, and be allowed to act as, NSW Ambulance Paramedics.
Without seeing the extent of their authority and any relevant delegation from the Minister I can’t say whether the security staff would have any authority to authorise treatment.
As for the common law of necessity – which says that where a person is unable to consent to treatment, treatment that is reasonably necessary and in their best interests may be given – that forms part of the common law of Australia so is as applicable on Commonwealth land as it is on private or state owned land.
The fact that the person was on a commonwealth place is irrelevant. By virtue of the law Commonwealth Places (Application of Laws) Act 1970 (Cth) s 4(14) the powers of the paramedics under both statute law (in this case the Mental Health Act 2007 (NSW) s 21) and common law continue to apply unless there is an inconsistent Commonwealth law. I have not been able to identify any relevant, inconsistent Commonwealth law.