This comment was received via the FaceBook version of this blog:

The s20 is written and directed to a medical officer at the receiving hospital. So the assessment of the patient should be carried out by a medical officer. The triage process is not an assessment by a medical officer. This gives Paramedics the authority to “hold” the patient after triage, before the patient has been offloaded and handed over to hospital staff. This has been my interpretation of the s20 for many years. Many NSW Paramedics believe that the s20 is for ‘transport only’ and that somehow the validity of the s20 ends when the patient enters the doors of the emergency department. This information is apparently also given by NSW Ambulance educators. Can you please clarify this? Another issue is the grey area of who has responsibility for the security of the patient before the patient has been formally handed over. Many times I have heard “security can’t touch the patient, because they haven’t been scheduled by a doctor”. Could you advise if hospital security staff have the right to help restrain a patient under the holding powers of a Section 20 prior to being assessed by a doctor?

Can we stop talking about ‘the s 20’?   Section 20 says an ambulance officer can take a person to a mental health facility.  Compare that to s 19 that says ‘A person may be taken to and detained in a declared mental health facility on the basis of a certificate about the person’s condition issued by a medical practitioner or accredited person. The certificate is to be in the form set out in Part 1 of Schedule 1.’   It might make sense to say a person has completed ‘a s 19’ as there is a specific form; or that they ‘have scheduled the person’ because the form is in the Schedule to the Act.  There is no similar requirement under s 20.    Paramedics when they deliver a patient to a health facility ideally hand over a clinical record indicating what they observed, the diagnosis made and the treatment given.   If they have a record indicating why they formed the view that the person was mentally ill and, if relevant, why they used force and/or sedation then that too is just the clinical record – it is not ‘a s 20’.

It is not the case that ‘Therefore ‘holding powers to keep a patient at a hospital until they are assessed’ should only end when the patient has been assessed by a medical officer’ because that is not what the Act says.  Section 18 says ‘A person may be detained in a declared mental health facility in the following circumstances:… (b) after being brought to the facility by an ambulance officer (see section 20)’.    It is up to the facility to have in place procedures to receive and assess a patient.

Assume that the patient is brought to the facility and there is room to receive them.  The facility, like any hospital, will need to have in place procedures to receive and triage the patient.  Let me assume the person doing the triage is a nurse with specialist mental health training.  That person will form the view as to whether the patient should be detained or not.  No doubt (to borrow an example from a commentator on this site – see https://emergencylaw.wordpress.com/2017/04/17/more-on-the-treating-the-mentally-ill-by-paramedics-in-nsw/#comment-7471) if the person ‘has recently been to a dance party, and was given a few ‘pills’ to try. She thought it was a ‘good idea at the time’ …. A few hours later…  police began to receive reports of a young woman naked, walking down the centre of a busy road. One motorist stopped to offer her ‘assistance’ with a jacket to wear, but she ran away screaming “they will kill us all”’  the triage nurse may decide to detain the person.  If, on the other hand, and to use the example that started this whole discussion (see Detaining a voluntary patient in NSW (March 31, 2017)) the ‘patient … mentioned suicide during an argument with his girlfriend. We asked that he come to hospital with us for assessment and to get him out of a volatile situation. The man was quite happy to comply, did not need any convincing and walked freely to the ambulance for transport’ then it may be decided that the person is indeed a voluntary patient.

Now the critical issue here is that the decision to detain (or not) does not require a prior assessment by a medical practitioner.  Why do I say that? Because s 27 tells me so.  Section 27 sets out the procedures ‘for ongoing detention in mental health facility’.  Section 27(1) says ‘An authorised medical officer must examine the person as soon as practicable (but not later than 12 hours) after the person arrives at the facility or after the person is detained after being a voluntary patient.’   So the medical examination must occur within 12 hours of arrival and after the person has been detained.  Unless the paramedics are going to sit with the patient for up to 12 hours, there has to be a process to hand their care to the facility.

So this is my understanding of what the law requires.  The ambulance officers form a view 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’ (s 20) so they transport them to a mental health facility.  On arrival the person is subject to triage assessment and the triage nurse, on behalf of the facility, has to decide whether to take the person in as a voluntary or involuntary patient.  They may decide to ‘detain’ them (ie treat them as an involuntary patient) on the basis of the history given by the ambulance officers (s 18(1)(b)).   Having agreed to ‘detain’ them it is then up to the facility to arrange for a medical examination in not less than 12 hours (s 27(1)) to confirm that they should remain in the facility as an involuntary patient.

If the facility cannot receive the patient, then s 20 would give the paramedics the authority to continue to treat the patient and perhaps transport them to another facility, just as they would continue to treat someone whilst waiting to offload them in a general hospital emergency department.  But once the patient’s been admitted to the facility (which must occur after triage, and can occur before examination by a medical practitioner) then the paramedics are free to go and the care of the patient is the facility’s responsibility (just as it must be in a general hospital emergency department).

To put that another way, that ‘s20 is for ‘transport only’ and that somehow the validity of the s20 ends when the patient’ is delivered to the care of the facility (not when they enter the door) must be true.  Section 20 is only directed to ambulance officers, it only empowers ambulance officers.  Subject to being a condition that allows the facility to chose to detain a patient (s 18(1)(b)) it doesn’t compel anyone else to do anything.    If you transport a patient with a cardiac condition to an emergency department you will continue to treat them pending triage and pending the hospital finding a bed for them but once they’re in the hospital’s care, paramedics don’t have to hang around to make sure that they are seen by the doctor or that the doctor treats them as the paramedics think they should be treated.

Same as in mental health, if you arrive at a mental health facility (and to again borrow from a commentator on this site – see https://emergencylaw.wordpress.com/2017/03/31/detaining-a-voluntary-patient-in-nsw/#comment-7473) the person ‘… has been transported to a Mental Health facility, for the purpose of ‘assessment’, with a view to the person then being detained, and the transport event was NOT planned in advance ( with the receiving facility ), then Police & Ambulance must take the person back with them, and take them to another facility (which WOULD be arranged before they left the first facility ). It means, that both uniformed Services are required to wait with the person at the facility that has declined receiving them, potentially for an hour or more.’     But if they do accept the patient s 20 doesn’t then authorise or require the paramedics to wait up to 12 hours for a medical assessment.  At that point the person is being detained by the facility.

As for security that would be a matter for the facility that employs them.  They are there I assume to secure the facility, the safety of the staff and the patient.  If the patient needs to be ‘secured’ then it would be axiomatic that security staff can do that, why else are they there?  Again there would need to be procedures in place so if ‘the facility’ (acting through its staff, let’s say the triage nurse) determines to detain the person (s 18(1)(b)) then they will have procedures in place to do so.  If the patient is not detained, they are a voluntary patient, then security staff have no authority to detain them or secure them unless their condition changes and they become a threat to themselves or to others.

In the findings on the Inquest into the death of Mr Robert Plasto-Lehner [2009] NTMC 014 (10 June 2009) the Northern Territory Coroner was critical of police action.  Relevant to our discussion the coroner noted (at [71]-[73]) that the deceased was taken to the Royal Darwin Hospital by police who were acting under the NT equivalent to s 22 of the NSW Act.   At the hospital Mr Plasto-Lehner was seen by a triage nurse and 15 minutes later by a doctor.  The doctor ‘sectioned the Deceased under section 34 (1) of the [Northern Territory] Act [the equivalent to s 19 of the NSW Act], the effect of which was that a recommendation had been made that the Deceased be psychiatrically examined. That section 34 notice authorised the Deceased to be held at the Royal Darwin Hospital until either he was taken to Cowdy Ward or he was assessed by the psychiatric registrar and released. He was no longer in the custody of the police, but was an involuntary patient in the care and control of the hospital’ ([74]).

That process, one can imagine, also applies in NSW.  The person is brought to a facility by ambulance officers (s 20) or police (s 22) and is triaged.  The facility must have procedures and it would be reasonable to think that one of them is for a doctor to examine the person and schedule then under s 19 (though that’s not essential).  Once the person is detained in the facility then they are ‘no longer in the custody of the police [or ambulance officers, but are] … an involuntary patient in the care and control of the hospital’.  Pending their further detention they must, within 12 hours, be examined by an ‘authorised medical officer’ under s 27.

What happened in that case is that even though Mr Plasto-Lehner was now in the custody of the hospital, the police remained with him pending the psychiatric examination.  Given the delays he became increasingly agitated and sought to go outside arguably for fresh air or for a cigarette.   For whatever reason (and the coroner did not accept the police explanations) the police felt they had to use force to restrain Mr Plasto-Lehner which they did.  The force used was ‘ unnecessary and excessive’ ([143]), and fatal.

The Coroner said (at [124]-[125]):

After the Deceased was sectioned by Dr Cromarty at 4.30pm, the police had no legal power at all to detain the Deceased at the hospital or to prevent him from leaving the hospital… Further, there is no common law power that the police can call in aid of. The common law does not even impose a positive duty upon police to take affirmative action to prevent a person such as the Deceased from committing suicide (Stuart v Kirkland-Veenestra [2009] HCA 15 at [99], [127]). I accept that neither … police officer was aware that they had no power to detain or control the Deceased at the hospital….

Unless the section 34 recommendation contains a clear statement that police do have authority to exercise the powers under the Act, there is no effective role the police can play after the handover.

In New South Wales a doctor’s certificate under s 19 ‘may contain a police assistance endorsement that police assistance is required …The endorsement is to be in the form set out in Part 2 of Schedule 1.’

The situation in NSW is then, the same as in the NT.  If the person is taken to hospital (under either s 20 or s 22) they may be detained.  They may also be detained if a doctor completes the certificate required by s 19.  One can imagine that a triage nurse may first assess a patient then call upon a doctor who completes a s 19 certificate.  If that’s done the person can be detained and there is no further role for the ambulance officers or police.     There is no power forpolice to use force to give effect to the s 19 certificate unless the doctor has specifically noted that such assistance is required, just as it was in the NT.

What’s different in NSW is that the facility doesn’t need a s 19 certificate to detain the patient.  The fact that they have been transported by ambulance (s 20) or police (s 22) is sufficient (see s 18).  But once the hospital has accepted the patient then the role of the ambulance officers must end.  The person is ‘no longer in the custody of the police [or ambulance officers, but are] … an involuntary patient in the care and control of the hospital’.

Let me then break down the issues as posed by today’s correspondent:

The s20 is written and directed to a medical officer at the receiving hospital.

No, ‘the s 20’ can’t be anything more than a clinical record.  It’s not ‘directed’ to anyone it records the patient’s history and treatment as does any clinical record.  There is no such thing as a ‘s 20 certificate’ as there is for s 19.

So the assessment of the patient should be carried out by a medical officer.

That is not required.  The facility may detain the person given that they have been transported by ambulance officers (s 18(1)(b)).   They could arrange for a medical officer’s examination and if the medical officer is not an ‘authorised medical officer’ they could complete a s 19 certificate but that too, does not compel the facility to detain the person, but they ‘may’ do so (s 18(1)(a)).   Having determined to detain the person, the facility needs to arrange for an ‘authorised medical officer’ to examine the person within 12 hours (s 27).

 The triage process is not an assessment by a medical officer.

No, nor does it need to be.

This gives Paramedics the authority to “hold” the patient after triage, before the patient has been offloaded and handed over to hospital staff.

That’s true, but ‘offloaded and handed over to hospital staff’ does not require a medical examination.  Just as in a general emergency department paramedics can deliver the patient to the facility before they are seen by a doctor, so too in a mental health facility.  Once the patient has been accepted, and that may be by the triage nurse depending on the facilities procedures, then they are no longer subject to the ambulance officer’s authority.

This has been my interpretation of the s20 for many years. Many NSW Paramedics believe that the s20 is for ‘transport only’ and that somehow the validity of the s20 ends when the patient enters the doors of the emergency department.

The validity of s 20 ends when the patient is received into the facility, just as a paramedics authority and duty to treat anyone ends when they are received by the next care provider, normally an emergency department.

 Another issue is the grey area of who has responsibility for the security of the patient before the patient has been formally handed over. Many times I have heard “security can’t touch the patient, because they haven’t been scheduled by a doctor”.

They can if they are posing a threat to themselves or to others.  That is what it means to secure the premises and the safety of the staff and patient, but the force used needs to be reasonable.

Could you advise if hospital security staff have the right to help restrain a patient under the holding powers of a Section 20 prior to being assessed by a doctor?

Not if the patient is being cooperative or simply asserting their desire to leave.

Section 81 allows the use of force and restraint and if the person has not been admitted to the facility so they are still in the care of the paramedics, then anyone can assist.  Imagine that you are on the street trying to restrain a violent, mentally ill person then a security guard or any bystander could assist.   If the person has been admitted to the institution, whether they have been seen by a doctor or not, then the role of the security staff is a matter for the institution that employs them.

Once the person has been accepted by the institution, whether as a voluntary or involuntary patient, ‘there is no effective role the police [or ambulance officers] can play after the handover’ and ss 20 and 81 become irrelevant.