A paramedic employed by the Ambulance Service of NSW has
… just undertaken some further in house training about the use of sedation and restraint with the NSW ambulance and an issue about authority to sedate and restrain came up. Section 20 of the NSW Mental Health Act gives ambulance officers authority to detain a person who is suffering from a mental illness and / or who is a mentally disordered person.
However we were told that we did not need to invoke Section 20 or have the patient covered by some other section such as Section 22 of the act from police or Section 19 from a medical officer, as Section 81 of the Act gives authority to persons such as an ambulance officer to sedate and / or restrain a person for the purpose of taking them to or from a mental health facility.
My reading of Section 81 is that it only applies to a “person who is authorised by the Act to be taken to and from a mental health facility”. In my understanding for a person to be authorised to be taken to and from a mental health facility some other section of the act must be in force.
I checked the Mental Health Regulations and can see nothing in them to clarify the authority. Either they are voluntary and so should probably not need sedation or some other detention order needs to be in place. I raised this only to be told Section 81(3) gives us authority and so no other section of the act is required.
Can we indeed sedate and restrain someone who is suffering from a mental illness or mentally disorder as defined by the act purely under Section 81 or does there need to be in force a detention order under some other Section of the mental Health Act such as Section 19, 20 or 22?
The Mental Health Act 2007 (NSW) s 81 says, relevantly:
(1) The persons listed below may take to or from a mental health facility or another health facility any person who is authorised by this Act to be taken, or transferred, to or from the facility …
(b) an ambulance officer…
(2) A person authorised by this Act to take a person to or from a mental health facility or other health facility may:
(a) use reasonable force in exercising functions under this section or any other provision of this Act applying this section, and
(b) restrain the person in any way that is reasonably necessary in the circumstances.
(3) A person may be sedated, by a person authorised by law to administer the sedative, for the purpose of being taken to or from a mental health facility or other health facility under this Act if it is necessary to do so to enable the person to be taken safely to or from the facility.
Section 81 gives an ambulance officer the power to transport a person to hospital and to use sedation but only if the transport is ‘authorised by this Act’. My correspondent is correct, s 81 does not give an ambulance officer the power to authorise a person to be taken; that is ‘for a person to be authorised to be taken to and from a mental health facility some other section of the act must be in force’.
A number of people may authorise the detention of a person for examination and treatment. Section 18 says:
A person may be detained in a declared mental health facility in the following circumstances:
(a) on a mental health certificate given by a medical practitioner or accredited person (see section 19),
(b) after being brought to the facility by an ambulance officer (see section 20),
(c) after being apprehended by a police officer (see section 22),
(d) after an order for an examination and an examination or observation by a medical practitioner or accredited person (see section 23),
(e) on the order of a Magistrate or bail officer (see section 24),
(f) after a transfer from another health facility (see section 25),
(g) on a written request made to the authorised medical officer by a designated carer, the principal care provider, a relative or friend of the person (see section 26).
Without going through those sections it can be seen that if a medical practitioner, an accredited person, a police officer, a Magistrate or a bail officer who complies with the relevant subsections authorises a person’s detention, then an ambulance officer can rely on s 81 to transport the person and, if necessary, sedate them.
There is also detention by an ambulance officer. Section 20 says:
An ambulance officer who provides ambulance services in relation to a person may take the person to a declared 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 follows that if an ambulance officer (that is ‘a member of staff of the NSW Health Service who is authorised by the Secretary to exercise functions of an ambulance officer under this Act’ (s 4)) ‘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’ then that is authority for the person to be ‘taken … to … the facility …’ That would then allow the ambulance officer, relying on s 81, to use force and, if necessary, sedation.
I’m not sure what impact that has. There is no formal invocation of s 20 required. If a paramedic is treating a person and forms the beliefs required in s 20 then they are authorised by s 81 to treat and transport the person to a mental health facility. If they don’t have the necessary belief then presumably there is no need to transport a person to a mental health facility.
My correspondent is correct. Section 81 says what an ambulance officer is authorised to do when transporting a person where the transport is authorised by another section of the Act. In the context of this discussion, the relevant section is s 20 and if the ambulance 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’ then that is sufficient authority.