An issue has arisen on a closed group of the NSW chapter of a national volunteer event health service provider. The question asked about the provision of ‘paperwork for sectioning a patient under the MHA, eg for our Doctors and Paramedics to utilise?’ The discussion then expanded to a discussion on the power and authority of those doctors and paramedics to take action under the Mental Health Act 2007 (NSW). I have been given permission to answer the question here.
The right of the mentally ill to refuse treatment
People who are mentally ill have the same rights as anyone else. Most importantly they have the right to consent, or to refuse consent, to treatment including treatment for their mental illness – see Victorian decision on refusing medical treatment – reviewing the principles (November 24, 2018). If the person does not want to be treated by first aiders because he or she thinks they are part of the authority that is out to kill them or because some other force is going to look after them, then that is their right.
The test for capacity is a functional test, that is the question is ‘whether, at the time the decision had to be made, the person could understand its nature and effects’ (PBU & NJE v Mental Health Tribunal  VSC 564 ). It is not an outcome test that is capacity does not depend on whether the person’s decision is a good or wise decision. In that earlier post I quoted the decision of Bell J in PBU & NJE v Mental Health Tribunal at length. It is worth repeating the quote here:
The rejection of the ‘outcome’ approach in favour of the ‘functional’ approach when the capacity standard was formulated is associated with the principle that a person is not to be treated as lacking capacity by reason of making a decision that could be considered to be objectively unwise (s 1(4) of the Mental Capacity Act [(UK)}and ss 11(1)(d) and 68(2)(d) of the Mental Health Act[(Vic)]). This principle recognises the dignity of risk. As Quinn J in Re Koch said:
It is mental capacity and not wisdom that is the subject of the [capacity legislation]. The right knowingly to be foolish is not unimportant; the right to voluntarily assume risks is to be respected. The State has no business meddling with either. The dignity of the individual is at stake.
Thus, by reason of the primacy of individual self-determination, the decision of a person (including someone with mental disability) able to make a decision must be respected, however unreasonable it may seem to others. This principle informs the legal relationship between doctor and patient, as explained by Lord Templeman in Sidaway v Board of Governors of Bethlem Royal Hospital and the Maudsley Hospital:
Where the patient’s health and future are at stake, the patient must make the final decision. The patient is free to decide whether or not to submit to treatment recommended by the doctor… if the doctor making a balanced judgment advises the patient to submit to the operation, the patient is entitled to reject the advice for reasons which are rational, or irrational, or for no reason. The duty of the doctor in these circumstances, subject to his overriding duty to have regard to the best interests of the patient, is to provide the patient with information which will enable the patient to make a balanced judgment if the patient chooses to make a balanced judgment.
In Malette, Robins, Catzman and Carthy JJA explained the relationship in the same way:
The right of self-determination which underlies the doctrine of informed consent also obviously encompasses the right to refuse medical treatment. A competent adult is generally entitled to reject a specific treatment or all treatment, or to select an alternate form of treatment, even if the decision may entail risks as serious as death and may appear mistaken in the eyes of the medical profession or of the community. Regardless of the doctor’s opinion, it is the patient who has the final say on whether to undergo the treatment … for this freedom to be meaningful, people must have the right to make choices that accord with their own values regardless of how unwise or foolish those choices may appear to others …
When it comes to assessing whether a person (whether mentally disabled or not) has the capacity to consent to or refuse medical treatment, the same principle applies. As Lord Donaldson MR (Butler-Sloss LJ agreeing) stated in ReT:
[The] right of choice is not limited to decisions which others might regard as sensible. It exists notwithstanding that the reasons for making the choice are rational, irrational, unknown or even non-existent …
Butler-Sloss LJ added:
A decision to refuse medical treatment by a patient capable of making the decision does not have to be sensible, rational or well-considered.
This approach has been followed by courts of high authority in England and has been approved in superior courts in Australia…
Despite the irrelevance of the outcome of the decision to the assessment of the person’s capacity, the tendency to make that assessment by reference to the person’s (so-called objectively reasonable) best interests is strong, so much so that the courts have frequently stressed the need to guard against it. York City Council was a case in which a wife with learning difficulties wanted to resume cohabitation with her sex-offending husband upon his release from prison. Refusing to intervene, McFarlane LJ (Richards LJ agreeing) held:
There may be many women who are seen to be in relationships with men regarded by professionals as predatory sexual offenders. The Court of Protection does not have jurisdiction to act to ‘protect’ these women if they do not lack the mental capacity to decide whether or not to be, or continue to be, in such a relationship. The individual’s decision may be said to be ‘against the better judgment’ of the woman concerned, but the point is that, unless they lack mental capacity to make that judgment, it is against their better judgment. It is a judgment that they are entitled to make.
In Heart of England NHS Foundation Trust, the issue was whether a person with a mental disability had the capacity to refuse to consent to an amputation of the leg below the knee. Finding that the person had that capacity despite his mental illness, Peter Jackson J stated that best interests considerations must not be allowed to dominate capacity assessments:
The temptation to base a judgment of a person’s capacity upon whether they seem to have made a good or bad decision, and in particular upon whether they have accepted or rejected medical advice, is absolutely to be avoided. That would be to put the cart before the horse or, expressed another way, to allow the tail of welfare to wag the dog of capacity. Any tendency in this direction risks infringing the rights of that group of persons who, though vulnerable, are capable of making their own decisions. Many who suffer from mental illness are well able to make decisions about their medical treatment, and it is important not to make unjustified assumptions to the contrary.
This statement was cited with approval and applied by MacDonald J in King’s College Hospital NHS Foundation Trust v C & V in a case involving a decision by a highly eccentric individual to refuse life-saving medical treatment. As the Secretary submitted in the present case, the following statement by MacDonald J in that case applies equally to the interpretation and application of s 68(1)(c) of our Mental Capacity Act:
a person cannot be considered to be unable to use and weigh information simply on the basis that he or she has applied his or her own values or outlook to [the relevant] information in making the decision in question and chosen to attach no weight to that information in the decision making process.
The judgment of MacDonald J, and those of Peter Jackson J in Heart of England NHS Foundation Trust and Wye Valley NHS Trust v B and the plurality in Starson v Swayze, all concerned with highly eccentric individuals, are notable for applying the capacity test in a way that is criteria-focused, evidence-based, patient-centred and non-judgmental.
Society does have to balance personal autonomy with the need to ensure treatment where that is necessary to ensure the safety of the person and or others. Given the laws desire to protect personal autonomy and choice, there are very strict laws that allow compulsory treatment of the mentally ill. Where those laws apply treatment can be given to those that cannot consent as well as those that have capacity, but refuse consent. Because the laws restrict freedom and autonomy they are very strictly interpreted. The relevant provisions in this context are the Mental Health Act 2007 (NSW) ss 18, 19, 20 and 81. Sections 18-20 appear under the chapter heading ‘Involuntary Detention and Treatment in Mental Health Facilities’. Section 18 says, relevantly,
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)…
Section 19 says:
(1) 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.
(2) A mental health certificate may be given about a person only if the medical practitioner or accredited person:
(a) has personally examined or observed the person’s condition immediately before or shortly before completing the certificate, and
(b) is of the opinion that the person is a mentally ill person or a mentally disordered person, and
(c) is satisfied that no other appropriate means for dealing with the person is reasonably available, and that involuntary admission and detention are necessary, and
(d) is not a designated carer, the principal care provider or a near relative of the person.
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.
Finally, s 81 says:
(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:
(a) a member of staff of the NSW Health Service,
(b) an ambulance officer,
(c) a police officer,
(d) a person prescribed by the regulations.
(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.
The initial question was, in effect, ‘do we have the paperwork for a doctor or paramedic to sign under ss 19 or 20?’ I cannot answer that question, I have no idea what paperwork this service has, so I’ll look at the question of whether the doctors and/or paramedics that deploy with this service can actually exercise the powers under those sections.
Medical practitioners are registered with the Medical Board under the Health Practitioner Regulation National law. There are no limitations in s 19 so a medical practitioner can exercise his or her judgment in any place. If a medical practitioner is deployed as part of the event health services team and he or she examines or observes a person’s condition, forms the opinion that the person ‘is a mentally ill person or a mentally disordered person’ and that involuntary admission and detention is necessary and there are ‘no other appropriate means for dealing with the person’ then that doctor can complete the form provided for in the Schedule to the Act.
The completion of that form means the person can be detained and taken to a declared mental health facility by those people listed in s 81(1) ie a member of staff of the NSW Health Service, an ambulance officer, a police officer or any other ‘person who provides a transport service approved by the Director-General’ for the purpose of the Mental Health Act (Mental Health Regulation 2013 (NSW) r 49). If the doctor thinks that police involvement is required, because of ‘serious concerns relating to the safety of the person or other persons’ (s 19(3)) then that must be endorsed on the certificate.
The purpose here is reasonably clear, it allows a doctor to sign the certificate and that certificate allows others to transport the patient to a mental health facility. The doctor does not need to travel with the patient. Once at the mental health facility the doctor’s certificate is sufficient authority for that facility to detain the patient until he or she can be examined by an authorised medical officer at that facility.
From the point of view of the event first aiders that means a doctor that is part of the team may complete a schedule 1 and that would authorise the ambulance or police to transport the person but it doesn’t allow that doctor to give compulsory medical treatment. The ambulance officers who attend may be permitted to restrain and sedate the patient if the various requirements in s 81 are met.
Paramedics too, are registered under the Health Practitioner Regulation National law thought their registration is managed by the Paramedicine Board. However where the Mental Health Act refers to ‘medical practitioners’ it does not refer to paramedics, it refers to ambulance officers – 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), that is an employee of the Ambulance Service of NSW.
Paramedics who are not employees of the Ambulance Service of NSW have no authority to act under s 20. Paramedics who are employees of the Ambulance Service of NSW but are not then at work and are working or volunteering with an event health service provider would not have authority under s 20 unless the authorisation by the secretary extended to their off-duty time, and I doubt that it does. Even where there is an authority under s 20, it is an authority to ‘take the person to a declared mental health facility’. Where the off-duty ambulance officer is volunteering or working with an event health service provider they are not intending to transport the patient. Section 20 is not some general provision to allow treatment, it is an authority to transport.
The authority to restrain and even sedate the person (which is part of the discussion that prompted this post) is found in s 81 but that again only applies when the person is being transported. It follows that the off-duty ambulance officers have no relevant authority or power under s 20 or 81 to do anything.
The common (and some other) law
The reality is that the Mental Health Act will have limited application for event health services. Remember that a person who is intoxicated or suffered a head or some other injury is not mentally ill, they are physically ill and this Act has no application even if they are manifesting symptoms of a mental disorientation. They need to go to hospital, not a mental health facility.
Where a person is mentally ill and consents to treatment then that can be provided. In a first aid context there is probably little treatment that can be provided.
Where the mental illness is such that the person is deprived of the capacity to consent, they are unable to understand whatever someone is proposing, then the doctrine of necessity would justify treatment that was reasonably necessary and in the patient’s best interests (In Re F  2 AC 1; see The doctrine of necessity – Explained (January 31, 2017).
Where the person is mentally ill but can still understand the nature of proposed treatment then he or she is entitled to refuse the treatment. The fact that this is not in his or her best interests is irrelevant. Treatment (and let’s be frank here, what we’re talking about is restraint and possible sedation) cannot be delivered, even if it would be in the person’s best interests. The fact that a person is at risk to themselves would not be sufficient justification to restrain them (Stuart v Kirkland-Veenstra  HCA 15). There is authority to use reasonable force to restrain a person to prevent a suicide (Crimes Act 1900 (NSW) s 574B) – but people can harm themselves without intending to commit suicide. Further there is no common law duty to protect people from harm that they may cause themselves from their own actions even if those actions are triggered by a mental illness where there is no power to restrain them (Stuart v Kirkland-Veenstra  HCA 15).
Where it is perceived that the person is posing a threat to others then there is authority to use reasonable force to restrain them on the basis of self-defence (which extends to the defence of third parties – Crimes Act 1900 (NSW) s 418).
What follows from the above is:
- Medical practitioners who work for or volunteer with the event health service provider can sign a certificate under s 19 of the Mental Health Act 2007 (NSW) if the requirements of that section are met. That certificate would authorise an ambulance officer or, if so endorse, a police officer to detain the person and transport them to a mental health facility.
- An off-duty ambulance officer employed by the Ambulance Service of NSW has no authority to act under ss 20 and 81.
- A registered paramedic who is not employed by the Ambulance Service of NSW has no authority to act under ss 20 and 81.
- In the absence of authority under the Mental Health Act the general law applies. If the person is competent they can refuse treatment and go on their way. (And being mentally ill is not the same as being incompetent, the question is whether the person understands what is being discussed not whether they make a sensible decision). If you ask the person to wait because you think they need help and you’re going to get a doctor to talk to them and they refuse to wait as they think you are going to harm them, they are still competent and you cannot restrain them.
- If the person is not competent, that is they are unable to understand the nature of the suggested treatment, weigh up the consequences of that treatment and communicate his or her decision (In Re C (Adult: Refusal of Treatment)  1 WLR 290; Gillick v West Norfolk and Wisbech Area Health Authority  1 AC 112) then the principle of necessity would apply and would justify treatment that is clinically indicated and in the patient’s best interests.
- A person may be restrained to prevent a suicide, but not all self-harm.
- A person may be restrained where it is reasonable and necessary to do so in self-defence or the defence of another.
- Where a person suffers a physical injury but refuses treatment, even if that decision is made wholly or in part because they are mentally ill, then that remains their right and you cannot compel them to accept treatment nor restrain them for that purpose. If the patient is not competent, then the principles of necessity apply.
The following suggestion may be going beyond legal commentary but I would suggest that where event first aiders observe a person who they believe to be mentally ill such that they require compulsory treatment for their mental illness then one would be very slow to seek to restrain or detain them. Given the first rule of DRSABCD is ‘danger’ it would be better to try and remove possible sources of danger and then call for ambulance or police assistance.
Where a patient is refusing life saving care and the fear is that their decision is being made because of their mental illness, a call should be made to triple zero for ambulance assistance or to a mental health care team if one is available.
After writing this post a commentator wrote:
I do feel though that Sect 15 of the MHA – The mentally disordered person, is relevant but often forgotten in these discussions. One does not have to be mentally ill nor mental illness proven in order to be managed in accordance with the act, an observation needs to be made that “…the person’s behaviour for the time being is so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control of the person is necessary:
(a) for the person’s own protection from serious physical harm, or
(b) for the protection of others from serious physical harm.”
I guess with respect to S15 it comes down to a definition/determination of serious physical harm.
That is a good point, so I’ll add some discussion on s 15.
Section 15 appears in Chapter 3 (Involuntary Admission and Treatment in and Outside Facilities), Part 1 (Requirements for Involuntary Admission, Detention and Treatment). It is a definition section that is it defines what is meant by the term ‘mentally disordered person’. It has to be read in context with s 14 that defines ‘mentally ill person’ and s 16 that provides that certain behaviours or beliefs do not establish mental illness. As my correspondent noted, s 15 says:
A person (whether or not the person is suffering from mental illness) is a mentally disordered person if the person’s behaviour for the time being is so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control of the person is necessary:
(a) for the person’s own protection from serious physical harm, or
(b) for the protection of others from serious physical harm.
Both sections 19 and 20 (discussed above) are ‘triggered’ if the person is either mentally ill or mentally disordered. Reference to s 15 does not change my conclusions about who may act under the Mental Health Act in the circumstances described, ie medical practitioners can act under s 19, off duty NSW Ambulance Officers and paramedics who are not employed by NSW Ambulance cannot act under s 20.
It follows that if a person is observed by the event health services team, including registered health professionals, and they form the opinion that the person is mentally ill or mentally disordered their options are still as described above. If the person is competent they can refuse treatment; if not then the principles of necessity apply.
My correspondent said “I guess with respect to S15 it comes down to a definition/determination of serious physical harm”. I suggest it also comes down to an assessment of ‘irrational’. The Act still does not impose an ‘outcome’ test that is just because a person is making a bad decision does not mean it’s an irrational decision. A person who believes God is directing them to refuse treatment is not acting irrationally if they act consistently with those beliefs; equally a person who doesn’t want treatment because they think the health service providers are actually out to harm them. An ambulance officer may form the view that the criteria of s 15 are met in all the circumstances and the section is designed to be protective in that its designed to ensure that people who would benefit from care get it. Having said that the trend in mental health law is to use restraint and compulsory treatment in very limited and very controlled circumstances so finding someone’s actions are ‘irrational’ just because they don’t make sense to you is fraught with danger.
Section 15 is a definition section and that definition has be applied when reading ss 19 and 20 but at the end of the day it doesn’t change my conclusions.