This is another question regarding the Mental Health Act 2007 (NSW). Today’s question is:
Does a Section 20 completed by an Ambulance Paramedic provide any holding powers for a patient to remain at hospital until assessed and if so by who? Throughout my career I have continually received conflicting advice from colleagues and educators with some stating a Section 20 only provides holding powers during transport and others, including a specific mental health educator, advising that a Section 20 provides holding powers to keep a patient at a hospital until they are assessed.
I have reviewed the Mental Health Act to the best of my ability and can not find information specific to this question. Ideally I would like to put the question to bed so to speak by being able to find some sort of written reference in the Mental Health Act.
I think I have answered this question in my earlier posts:
- Detaining a voluntary patient in NSW (March 31, 2017) and the discussion that followed that post; and the follow up post,
- More on the treating the mentally ill by paramedics in NSW (April 17, 2017).
Even so I think I can return to it again to try to make a more complete description of the Act, because this is clearly a matter of controversy and confusion.
There are books on statutory interpretation, the leading text written by colleagues and friends, see Pearce, D C; Geddes, R S, (2014) Statutory Interpretation in Australia (8th edition, Lexis/Nexis). Even so it is my view that the easiest way to understand legislation is to simply read it. You can read the Mental Health Act 2007 (NSW) on Austlii or on the official NSW legislation website. I will work through the relevant sections but not quote them in full but you can go to the online versions for the full text.
First note that ‘a Section 20 completed by an Ambulance Paramedic’ doesn’t actually mean anything. Section 20 talks about authority but doesn’t provide for a certificate or form as s 19, and Schedule 1 does. The ambulance service may have created documentation for patient hand over but there is no prescribed form for s 20.
What does s 20 say? Section 20(1) says that an ambulance officer may take a 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’. If there are ‘there are serious concerns relating to the safety of the person or other persons’ then an ambulance officer can ask for police assistance (s 20(2)).
Because an ambulance officer is authorised to take a person to a mental health facility they are also authorised to use force, and sedation (ss 81(2) and (3)). So far the action of the ambulance officer, including forming the belief that the person would benefit by being taken to a mental health facility and that the force or sedation is required, impose no obligation upon anyone else.
If an ambulance officer asks for police assistance (s 20(2)) then the police ‘must, if practicable’ provide that assistance (s 21). That is the only section that imposes a ‘compulsion’ on someone else to act on the ambulance officers’ determination.
When a person is taken to a mental health facility by an ambulance officer, the mental health facility may, not must, detain the person on the basis on the ambulance officer’s opinion (s 18(1)(b)). And that makes sense, the staff at the mental health facility are (hopefully) the experts and they don’t want to be committed to detain a person if they think the ambulance officers’ conclusions were wrong and that the person does not require detention.
The other relevant section is s 81(1) which says that ambulance officers are authorised to transport people to a mental health facility where that is ordered by someone else. So, for example, if a doctor completes a ‘mental health certificate’ (s 19) then ambulance officers are authorised to transport the person in accordance with that certificate without having to form their own view under s 20.
The question I was asked today was (to paraphrase it):
I have been advised that ‘Section 20 only provides holding powers during transport and others, including a specific mental health educator, advising that a Section 20 provides holding powers to keep a patient at a hospital until they are assessed’; what is correct?
Section 20, when read with ss 81 and 12 (which says that detention should only be used when ‘no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available’) allows ambulance officers to form their own view on a person’s mental state and to take them, with force and/or sedation if required, to a mental health facility. It imposes no obligation upon the mental health facility to detain the person but it does impose an obligation upon police to assist if the ambulance officer asks for police assistance. In that sense ‘Section 20 only provides holding powers during transport’.
However, the fact that the person has been transported by ambulance means that the staff at the mental health facility may detain the person pending the further assessment required by s 27. In that sense, the fact that the paramedics delivered the person, relying on s 20, does give rise to ‘holding powers to keep a patient at a hospital until they are assessed’ but it does not compel or require that the person is so detained. It is a condition precedent (ie it is something that must happen first) to give the mental health facility the power to detain the person.