Today’s question is
… about s20 & s22 of the Mental Health Act (NSW)… There is nothing in the Act or MOU (Police/Ambulance) that I am aware of about what to do if the situation changes or further information becomes available and the person no longer meets the criteria of the sections. I do not believe that you could continue to transport under these sections in this instance.
The Mental Health Act 2007 (NSW) s 20 says:
(1) 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.
(2) An ambulance officer may request police assistance if of the opinion that there are serious concerns relating to the safety of the person or other persons if the person is taken to a mental health facility without the assistance of a police officer.
Section 22 says:
(1) A police officer who, in any place, finds a person who appears to be mentally ill or mentally disturbed may apprehend the person and take the person to a declared mental health facility if the officer believes on reasonable grounds that–
(a) the person is committing or has recently committed an offence or that the person has recently attempted to kill himself or herself or that it is probable that the person will attempt to kill himself or herself or any other person or attempt to cause serious physical harm to himself or herself or any other person, and
(b) it would be beneficial to the person’s welfare to be dealt with in accordance with this Act, rather than otherwise in accordance with law.
(2) A police officer may apprehend a person under this section without a warrant and may exercise any powers conferred by section 81 on a person who is authorised under that section to take a person to a mental health facility or another health facility.
I have previously argued that I don’t think s 20 gives NSW paramedics nearly as much authority or power as they, and NSW Ambulance, thinks it does (see Mental Health Act 2007 (NSW) s 20 – a summary of my current thinking (October 7, 2019)). The aim of the Mental Health Act is to protect those that are mentally ill but also to facilitate their treatment whilst given the most effect to their autonomous choices as can be accommodated in the circumstances of their illness. Section 3 says that:
The objects of this Act are–
(a) to provide for the care and treatment of, and to promote the recovery of, persons who are mentally ill or mentally disordered, and
(b) to facilitate the care and treatment of those persons through community care facilities, and
(c) to facilitate the provision of hospital care for those persons on a voluntary basis where appropriate and, in a limited number of situations, on an involuntary basis, and
(d) while protecting the civil rights of those persons, to give an opportunity for those persons to have access to appropriate care and, where necessary, to provide for treatment for their own protection or the protection of others, and
(e) to facilitate the involvement of those persons, and persons caring for them, in decisions involving appropriate care and treatment.
Subparagraphs (c) and (d) are particularly relevant. See also s 68 Principles of Care and Treatment.
If we think of the Act as being protective and beneficial then I think we get a better view of s 20. Section 20 provides that where a NSW paramedic finds a person whom that paramedic thinks is mentally ill, then the patient can be transported to a mental health facility. It doesn’t say (as I argue in my earlier post) that they can be treated against their wishes if they are competent to form and express a view. It says they can be taken there instead of, say to the nearest general hospital where they may have to wait in the emergency department to be assessed which is not in anyone’s best interests.
If we consider the threshold for s 20, that is 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’ it has to follow that the section will not apply if those beliefs are no longer held. If for example the paramedic forms the view that the person is not mentally ill but has a traumatic injury and that explains their behaviour it would be perverse if they had to continue to the mental health facility because that was their intended destination when the ambulance doors were shut.
Equally if they form the view that the person is not mentally ill then it would be perverse to insist on transporting them to a facility where they did not need to go. If paramedics were treating someone for a condition and then got further information that made it more likely that the patient had another condition. They are treated for the second condition and recover such that they don’t need to go to hospital, then it would be perverse to insist on taking them to hospital on the basis of the first, incorrect, diagnosis.
On the other hand if you did form the view that s 20 did apply, but then changed your mind, there would be nothing to stop you continuing to the mental health facility if the patient wanted you to; just as paramedics sometimes transport a person to hospital even if in the paramedic’s view, such transport is not really required. One would have to consider all the circumstances such as if you stop transport now, what’s the person going to do? You can just push them out onto the street and tell them to call a cab. And they may believe they are mentally ill and require treatment even if you do not. It may be ok in those circumstances to leave a person with friends or family, but if you have already removed them into an ambulance you still have to take reasonable care for their welfare. But in those circumstance s 20 is hardly relevant.
As I’ve said I don’t think the Act actually empowers ambulance officers to detain a person who, although mentally ill, remains competent and refuses treatment. In those circumstances the power to detain a person against their will is given to police.
Police can arrest a person for an offence. Before they arrest someone, they must have reasonable grounds to suspect the person has committed an offence and must arrest with the intention of putting the person before the court. If those criteria are met, the arrest is lawful even if, having made the arrest, subsequent enquiries reveal that the person did not commit the offence and they release them from custody. Having made the arrest they are not obliged to keep the person in custody and put them before the court even though they no longer believe that the person committed the offence (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 99 and 105). Equally if a person is detained under the Mental Health Act 2007 (NSW) s 22 continued detention could not be justified if the officer no longer held the views required by that section. Such detention would become a false imprisonment.
As with any medical care, treatment has to be flexible and change to take into account further relevant information. Section 20 allows paramedics to take a person to a mental health facility. If you propose to act under that section, or commencing action and then information means you no longer think that treatment is relevant then you must not only have the authority, but the obligation to change your treatment to suit what you know. Anything else would be perverse.
It follows that it must be the case that if ‘the situation changes or further information becomes available and’ a treating paramedic or detaining police officer believes that ‘the person no longer meets the criteria of the sections’ 20 or 22 that further action in reliance of those sections, particularly if it involved detention (s 20) or involuntary treatment (s 81) could not be justified. That does not mean that nothing can be done, reasonable care must still be taken, and given, but those sections would have no role to play.