I have received some details about a person’s detention under a Queensland Emergency Examination Authority (EEA). I won’t go into the details as I cannot give specific legal advice but there were some points that I can address. I’m told:
… I believe that I was unlawfully detained from my home under a supposed EEA which I have not seen. I was not told about my rights nor initially what an EEA was as the police entered my home. … I was not told about an independent patient rights advisor. There was nothing wrong with me and [I] was sent home by the hospital in a cab … Certainly no “major disturbance in my mental capacity” or any “risk of immediate harm”…How can a person challenge this when it is thrust upon them?
Sections 157B to 157E of the Public Health Act 2005 (Qld) say (relevantly):
157B AMBULANCE OFFICER OR POLICE OFFICER MAY DETAIN AND TRANSPORT PERSON
(1) This section applies if an ambulance officer or police officer believes—
(a) a person’s behaviour, including, for example, the way in which the person is communicating, indicates the person is at immediate risk of serious harm; and
(b) the risk appears to be the result of a major disturbance in the person’s mental capacity, whether caused by illness, disability, injury, intoxication or another reason; and
(c) the person appears to require urgent examination, or treatment and care, for the disturbance.
(3) The ambulance officer or police officer may detain the person and transport the person to a treatment or care place…
157C WHAT AMBULANCE OFFICER OR POLICE OFFICER MUST TELL PERSON
(1) The ambulance officer or police officer must—
(a) tell the person that the officer is detaining the person and transporting the person to a treatment or care place; and
(b) explain to the person how taking action under paragraph (a) may affect the person.
(2) The ambulance officer or police officer must take reasonable steps to ensure the person understands the information given under subsection (1), including by telling the person or explaining the thing to the person—
(a) in an appropriate way having regard to the person’s age, culture, mental impairment or illness, communication ability and any disability; and
(b) in a way, including, for example, in a language, the person is most likely to understand.
157D GIVING EMERGENCY EXAMINATION AUTHORITY
(1) If the ambulance officer or police officer takes the person to a treatment or care place that is a public sector health service facility, the officer must immediately make an authority (an “emergency examination authority”) for the person.
(2) The authority must—
(a) be in the approved form; and
(b) state the time when it is given.
(3) The person may be detained in the treatment or care place while the authority is being made.
(4) Immediately after making the authority, the ambulance officer or police officer must give the authority to a health service employee at the treatment or care place.
157E DETENTION IN TREATMENT OR CARE PLACE
(1) A person subject to an emergency examination authority may be detained in a treatment or care place that is a public sector health service facility for a period (the “examination period”) of not more than 6 hours starting when the authority is given to the health service employee under section 157D (4)…
(1) A doctor or health practitioner may examine a person subject to an emergency examination authority to decide the person’s treatment and care needs.
(2) Also, a doctor or authorised mental health practitioner may examine the person to decide whether to make a recommendation for assessment for the person under the Mental Health Act 2016.
A person who is the subject of a recommendation for assessment under the Mental Health Act may be detained for up to 24 hours and depending on the outcome of the assessment, subject to involuntary treatment. The Mental Health Act 2016 (Qld) s 25(3) says:
The health service chief executive responsible for a public sector mental health service must appoint 1 or more independent patient rights advisers to advise patients and their nominated support persons, family, carers and other support persons of their rights under this Act.
The functions of an independent patient rights adviser are set out in s 294. Other provisions on the rights of patients are out in ss 280 to 290.
One can see there is a process.
- The person is observed by an ambulance or police officer who forms the view that the criteria set out in s 157B(1) exist.
- The police or ambulance officer decide to detain and transport the person.
- The police or ambulance officer must give the information required by s 157C.
- On arrival at the health facility, the police or ambulance officer complete and Emergency Examination Authority and hand that to the health service staff.
- The person may then be detained in the facility for not more than 6 hours.
- The person may be examined by a medical practitioner and treated or referred for assessment under the Mental Health Act.
- If an assessment is recommended under the Mental Health Act they can be detained for up to 24 hours and are subject to the provisions of that Act.
When set out in that order issues with my correspondent’s question resolve.
First when police or ambulance officers attend a person’s home and make the decision to detain and transport them, they are not detaining them under an Emergency Examination Authority (EEA). Their authority at that point is found in s 157B. My correspondent’s first point ‘that I was … detained from my home under a supposed EEA which I have not seen’ is wrong. At that point there was no EEA. An EEA is completed when the patient is delivered to a health facility. It is an authority from the ambulance or police officers addressed to the health facility and it allows the facility to continue the person’s detention. Unlike a warrant there is no obligation to show the EEA to the person as it is not an order or authority directed to them, it is addressed to the health facility.
Detention under s 157B is not an arrest. When police arrest a person, they are obliged to caution them and if not immediately then at the police station advise the person of their rights (Police Powers and Responsibilities Act 2000 (Qld) Chapter 15). Given this was not an arrest under that Act, those provisions don’t apply.
With respect to an ‘an independent patient rights advisor’ that role exists under the Mental Health Act. If a person is not detained under that Act, then that is not relevant, and it should be noted that steps (1) to (5) are not made under the Mental Health Act. A person may be detained under the Public Health Act for reasons other than mental illness, for example their ‘behaviour … [which] indicates the person is at immediate risk of serious harm’ may be due to a head injury and what they require is neurosurgery not mental health care. If no recommendation for assessment or order for detention under the Mental Health Act is made, there is no role for the ‘independent patient rights advisor’.
One can never be an accurate judge in one’s own cause. An assertion by a perron that there was ‘nothing wrong with me’ and they did not pose a threat to their own safety has to be considered carefully if the person who rang triple zero and the police and ambulance officers in attendance all thought that there were grounds for concern. But even so, positions can be abused and some may take action to ‘cover their butt’ rather than because they believe the grounds are made out, so ‘How can a person challenge this when it is thrust upon them?’
The answer is of course that it is very difficult to challenge it at the time. Police and ambulance officers who think they are justified in detaining a person under s 157B are unlikely to delay that whilst the person calls their lawyer and then makes an urgent application to the local Supreme Court duty judge. That is an option, but not very practical.
One should not attempt to resist any more than one should resist arrest. That simply escalates matters. The best option is to cooperate, make the case to the examining doctors that detention is unwarranted and then challenge the action by way of a claim of assault and/or false imprisonment or a complaint about the conduct of the officers if there was insufficient evidence to justify their findings. This is not an immediate solution but unfortunately the law and its processes are not good at immediate solutions. There are processes of review built in, the ambulance and police officers can detain a person but then it is up to a medical practitioner to further assess the person and, if they are detained under the Mental Health Act there is further review by the Mental Health Review Tribunal.
For my correspondent, now at liberty, their only recourse would be to make a complaint about the conduct of the police and/or ambulance officers and/or sue for battery and false imprisonment. We cannot know, because we have no facts, whether any such complaint or action would succeed. The critical issue is that detention under the Public Health Act is:
1. Not the same as an arrest;
2. Not the same as detention under the Mental Health Act (though it may lead to that); and
3. An EEA is an authority given to a receiving health facilyt by paramedics authorising a person’s further detention. A person detained by ambulance or police officers under s 157B are not detained under an EEA so there is, at that time, no EEA to ‘show’ the person.
For related posts see:
- Paramedics and the mentally ill – Queensland – An update (October 14, 2019); and
- In Queensland, is threatening suicide evidence of ‘a major disturbance in [a] person’s mental capacity’? (August 6, 2020).