This question came to me as a comment on my earlier post (Paramedics and the mentally ill – Queensland (February 13, 2014)) but I thought it warranted a post of its own.    My correspondent writes:

I’d like to offer another hypothetical case and request your opinion. Then I’d like to offer my interpretation of how a paramedic must act to correctly apply this Act and see if you agree.

First, the case: Imagine a sober, adult patient who has a history of mental illness (say, depression) who calmly and reasonably explains that they no longer wish to struggle with this terrible disease and so they intend to commit suicide. They discuss this with a family member who calls ‘000’. Paramedics are dispatched and they discover the patient to be alert and oriented to person place and time and clearly of sound mind. The person says that while they do struggle with depression, and have been diagnosed with depression, and take antidepressants, they do not currently feel depressed. They feel that they have made a reasonable decision in a ‘lucid interval’ to end a life they consider unpleasant and they subsequently refuse assessment and transport.

Question 1: Would it be legal for the paramedics to initiate an EEO in this case?

My reading of the Act seems to suggest that any patient who is alert and oriented and appears to have the capacity to understand the consequences of their actions can’t be detained under the Act; it would only be those who appear to be irrational and disoriented, who are therefore lacking in ‘capacity’ to make an informed decision regarding their care (and only if this condition is due to a legitimate mental illness) that can be detained.

This seems a bit counter-intuitive, but my argument would be this: in your post you state that someone who has the capacity to accept care also has the right to refuse care. So a patient who is lucid, and has been deemed to have the ‘capacity’ to make a rational decision (regardless of whether others agree with it or not) would therefore have the right, regardless of this Act, to refuse care if they chose.

Now, my interpretation: I have suggested that the most appropriate way to determine if the Act can be applied would be to perform a Glasgow Coma Scale assessment, ensure that the patient is alert and oriented to person, place and time, to ensure that they have distant, recent and current memory, then to ensure that they understand the treatment you are offering and the potential causes of refusing that treatment. If they pass this assessment, then I don’t think they can be said to “appear to have a mental illness” that “requires immediate assessment”.

Question 2: Would you agree with the recommendation for the correct way for a paramedic to apply the Act offered in the above paragraph?

Let me say from the outset I’m not going to able to answer question 2 or comment on suggested ‘most appropriate way to determine if the Act can be applied’.  That is raising clinical issues and not something that it would be appropriate for me to comment on here when I don’t have the expert advice from clinicians.  How paramedics approach this is a matter for their professional judgment and the judgment of their service as set out in relevant protocols, guidelines and procedures.  If what is suggested here is considered ‘reasonable’ by the profession then that will be sufficient; but it’s up to the profession, not me to make that determination.

With that out of the way, let me turn to question 1.  The Mental Health Act 2000 (Qld) s 33 says that it applies ‘if a police officer or an ambulance officer reasonably believes— (a) a person has a mental illness…”  A mental illness is ‘a condition characterised by a clinically significant disturbance of thought, mood, perception or memory… [A] decision that a person has a mental illness must be made in accordance with internationally accepted medical standards’ (Mental Health Act 2000 (Qld) s 12).

In the scenario we are given the person is ‘a sober, adult patient who has a history of mental illness (say, depression) [but who is behaving] calmly and reasonably’.  The person is ‘alert and oriented to person place and time and clearly of sound mind’.  If the person is not exhibiting ‘clinically significant disturbance of thought, mood, perception or memory’ then they are not suffering a mental illness so s 33 will have no application.  Any paramedic or police officer who purported to detain a person under that section may be motivated by a desire to help, but their actions would not be authorised by the Act and they would be stepping away from the principles of respect for autonomy and back to ‘paternalism’ – we know what’s best for you!

Question 1 was ‘Would it be legal for the paramedics to initiate an EEO in this case?’ and the answer is, ‘if the patient is not exhibiting ‘clinically significant disturbance of thought, mood, perception or memory’ then no it would not be legal.

But don’t just take my word for it.   Consider what the High Court of Australia had to say in Stuart v Kirkland-Veenstra [2009] HCA 12.   This was a case with similar facts.  Police found a man sitting in a car with a hose running from the exhaust into the car.  He was clearly contemplating suicide but at the time the engine was not on and was cold so had not been on for some time. He was contemplating but not yet attempting suicide.  Police spoke to him:

Both officers were of the opinion that Mr Veenstra showed no signs of mental illness. He appeared to them to be rational, cooperative and very responsible the entire time. During their conversation he removed the hose from the exhaust and placed it in the vehicle. He did this of his own initiative and not as a result of any suggestion made to him by the officers. (Stuart v Kirkland-Veenstra [2009] HCA 12, [10] (French CJ)).

At the time,  Mental Health Act 1986 (Vic) s 10 (now repealed and replaced by the Mental Health Act 2014 (Vic)) said

Apprehension of mentally ill persons in certain circumstances

(1)            A member of the police force may apprehend a person who appears to be mentally ill if the member of the police force has reasonable grounds for believing that –

(a)             the person has recently attempted suicide or attempted to cause serious bodily harm to herself or himself or to some other person; or

(b)            the person is likely by act or neglect to attempt suicide or to cause serious bodily harm to herself or himself or to some other person.

As Chief Justice French (or French CJ) said (at [11]) ‘The two officers were aware that they had a power under s 10 of the 1986 Act to apprehend a person who appeared to have a mental illness and to have attempted or to be likely to attempt suicide. They did not exercise that power. They allowed Mr Veenstra to leave the car park.’  Mr Veenstra returned home and took his own life.  Mr Veenstra’s widow sued Victoria Police alleging that they were negligent in allowing Mr Veenstra to leave rather than detain him.  She argued the police should have know that he was mentally ill, in the process of committing suicide; and likely to attempt suicide or to cause serious bodily harm to himself.  She argued that the police were duty bound to take Mr Veenstra into protective custody such duty coming from either the common law, or s 10 of the 1986 Act (Stuart v Kirkland-Veenstra [2009] HCA 12, [16] (French CJ)).

The High Court disagreed and had this to say about mental illness, suicide and taking people into custody ‘for their own good’.    French CJ looked at the explanatory memorandum that accompanied the 1985 Bill (that became the 1986 Act).  When presenting the Bill to Parliament the Memorandum ‘said that the Bill recognised that the classification of a person as an involuntary patient involved a curtailment of civil liberties. It took the approach that such action should only be contemplated if absolutely necessary for the safety and wellbeing of the person, or for the protection of the community’ [33].   The Act was intended to modernise the law and to recognise that the mentally ill retain rights including the right to exercise autonomy and be involved in health care decision making to the extent that they could do so.

In 1995 the Act was amended to add a definition of mental illness.  That definition said (at [37]) ‘a person is mentally ill if he or she has a mental illness, being a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory”

If Mr Veenstra was not displaying ‘significant disturbance of thought, mood, perception or memory’ then the police had no power to detain him under s 10 and could not be liable for failing to exercise a power that they did not have (see [63]).  But what of Mr Veenstra’s apparent contemplation of suicide?   French CJ (at [44]-[46]) said:

Section 10 does not assume a necessary linkage between mental illness and attempted suicide. This accords with the long-standing resistance of the common law to the proposition that such a connection necessarily exists… the construction of s 10, which would not treat attempted suicide as necessarily reflecting mental illness, is consistent with the long-standing caution of the common law about that proposition. Given the complexity and variety of factors which may lead to suicidal behaviour, it would be a bold legislative step indeed to sweep it all under the rubric of mental illness, however widely defined. That step has not been taken in the 1986 Act.

And later [58] ‘The fact that a person has decided to commit suicide may indicate deep unhappiness or despair. It does not mean that the person is mentally ill …’ According to French CJ neither the Act nor the common law assume that just because a person is contemplating suicide, they must be mentally ill.

Justices Gummow, Hayne and Heydon agreed there was no relevant duty to protect Mr Veenstra from himself.  They said (at [87]-[89]):

The duty which the plaintiff alleged the police officers owed her late husband was a duty to control his actions, not in this case to prevent harm to a stranger, but to prevent him harming himself. On its face, the proposed duty would mark a significant departure from an underlying value of the common law which gives primacy to personal autonomy, for its performance would have the officers control conduct of Mr Veenstra deliberately directed at himself…

It may be said that the notion of personal autonomy is imprecise… But expressed in the most general way, the value described as personal autonomy leaves it to the individual to decide whether to engage in conduct that may cause that individual harm. As Lord Hope of Craighead put it in Reeves v Commissioner of Police of the Metropolis, “[o]n the whole people are entitled to act as they please, even if this will inevitably lead to their own death or injury”

There may be a duty to intervene if a person is not competent but ‘Section 10 does not reveal any legislative view that to attempt suicide is to be mentally ill. Nor, as explained below, has that been the unqualified position of the common law’

Justices Crennan and Kiefel said (at [127]-[128]):

The common law generally does not impose a duty upon a person to take affirmative action to protect another from harm… The law draws a distinction between the creation of, or the material increase of, a risk of harm to another person and the failure to prevent something one has not brought about… So far as concerns situations brought about by the action of the person at risk, it is the general view of the common law that such persons should take responsibility for their own actions…

The refusal of the English common law to impose a general duty to act has been criticised. Civil law countries impose criminal sanctions where a person fails to assist… Even so, that obligation does not arise in the case of a person attempting suicide because the peril is viewed as an act of will, at least in cases where the person is not insane.

With respect to s 10 of the Victorian Act they said (at [147] and [150]):

The power of apprehension in s 10(1) required, critically, that there be an opinion, held by a police officer, that the plaintiff’s husband was mentally ill when he was observed. Depending on the circumstances, a person who has attempted, or is likely to attempt, suicide may or may not satisfy the criteria of mental illness… It is not a sufficient condition that an officer be aware that the plaintiff’s husband had recently contemplated suicide. The purpose of s 10(1) is to allow officers lawfully to apprehend a person who appears to be mentally ill and is also at risk of harm. Its purpose is not to prevent suicide. In this regard the Act does not deviate from the common law view of autonomy…

Absent the holding of an opinion that the plaintiff’s husband was mentally ill, the power to apprehend was not available. A condition necessary to the power did not exist in law…

Section 10 of the Mental Health Act 1986 (Vic) had one substantial difference to the current Queensland Act.  The Victorian Act said ‘A member of the police force may apprehend a person who appears to be mentally ill…’ (emphasis added).  The High Court judges spent some time discussing whether the use of the word ‘may’ could give rise to a duty to act, that is to convert ‘may’ to ‘must’.  That is not an issue in Queensland.  If a paramedic or police officer has the necessary opinion that the person is mentally ill and also meets the other criteria set out in s 33 then the paramedic or police officer ‘must take the person to an authorised mental health service’ (s 34; emphasis added).  But nothing turns on that.  The obligation imposed by s 34 only arises if the paramedic or police officer reasonably believes, amongst other things, that the ‘person has a mental illness’.  If they don’t hold that belief s 34 is irrelevant.

As noted by the judges of the High Court, the mere fact that a person intends to take their own life is not evidence that they are mentally ill for the purposes of the Act.  They were talking about the Victorian Act but the definition of mental illness in the Queensland Act is not significantly different.  The Victorian Act required:

a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory”

The current Queensland Act requires:

a condition characterised by a clinically significant disturbance of thought, mood, perception or memory…

The Queensland law has added the word ‘clinically’ so if there is any difference it is to make the test harder to meet by adding a further factor – is the disturbance ‘clinically significant’ instead of just ‘significant’.

What follows is

  1. A paramedic cannot lawfully rely on the Mental Health Act 2000 (Qld) s 33 unless he or she believes that the patient is mentally ill.
  2. To be mentally ill means to be suffering from ‘a clinically significant disturbance of thought, mood, perception or memory’. It does not mean ‘to be contemplating suicide’.
  3. If a person is not mentally ill then s 33 is not relevant.
  4. If a person is sober, adult, behaving calmly and reasonably, ‘alert and oriented to person place and time and clearly of sound mind’ albeit with a history of mental illness but not currently displaying any symptoms of disturbance of thought, mood, perception or memory then there is no power, nor any duty, to take steps to prevent them taking their own life. People are allowed to kill themselves if they want to.