25.1 Mental health and the law: the Australasian and UK perspectives

Police powers

Section 136 of the Act authorizes the police to remove patients who are believed to be mentally disordered and causing a public disturbance to a place of safety. The place of safety referred to in the Act is defined in Section 135 as ‘residential accommodation provided by a local authority under Part III of the National Assistance Act 1948, or under Paragraph 2, Schedule 8 of the National Health Service Act 1977, a hospital as defined by this Act, a police station, a mental nursing home or residential home for mentally disordered persons or any other suitable place, the occupier of which is willing temporarily to receive the patient’. In practice, the police often transport these patients to local EDs. The patient must be assessed by an approved social worker and a registered doctor. The order lasts for 72 h.

Section 135 allows the police to enter premises to remove a patient believed to be suffering from a mental disorder to a place of safety for up to 72 h. The patient is then assessed as above.

Mental Capacity Act

The Mental Capacity Act relates to decision making, for those whose mental capacity is in doubt, on any issue from what to wear to the more difficult issues of medical treatment, personal finance and housing.

Lack of capacity can occur in two distinct ways. First, that capacity is never achieved – for example someone with a severe learning difficulty. Secondly, capacity can be lost either as a result of long-term conditions, such as dementia, or for a short period because of a temporary factor, such as intoxication, shock, pain or emotional distress.

It is also important that decision making is task specific. An individual may be able to make decisions about simple matters, such as what to eat or wear, but may be unable to make more complex decisions, for example about medical care.

Assessment of capacity

To have capacity about a decision, the patient should be able to comply with the following four steps:

Every effort needs to be made to enable people to make their own decisions.

The Act points out that people should be allowed to make ‘eccentric’ or ‘unwise’ decisions, as it is their ability to decide that is the issue not the decision itself.

Advance directives

The Act makes provision for advance directives to be made at a time when the patient has capacity. These directives need to make specific reference to the medical treatments involved and include the statement ‘even if life is at risk’. The validity of any advance decision needs to be clearly documented.

Advocates

Although family and friends have no legal powers (unless specified in advance) to make decisions for the incapacitated patient, the Act recognizes their role in acting as an advocate. An independent mental capacity advocate is available to represent those with no close family or friends.

Emergency treatment

Treatment can be given to patients who lack capacity but several factors need to be considered:

Use of sedation or physical restraint

This is covered in detail elsewhere (Chapters 20.6 and 21.5). From the perspective of the mental health legislation, there are occasions where physical or pharmacological restraint is needed. Sedation or restraint must be the minimum that is necessary to prevent the patient from self-harming or harming others. Generally, a patient committed involuntarily is subject to treatment necessary for their care and control and this may reasonably include the administration of sedative or antipsychotic medication as emergency treatment. Transporting these patients to a mental health service should be done by suitably trained medical or ambulance staff and not delegated to police officers or other persons acting alone.

Mental health legislation in Australasia

In Australia, mental health legislation is a state jurisdiction and, among the various states and territories, there is considerable variation in the scope of mental health acts and between definitions and applications of the various sections. Since the National Mental Health Strategy in 1992, there has been an effort in Australia to adopt a consistent approach between jurisdictions, with an emphasis on ensuring legislated review mechanisms and a broad spectrum of treatment modalities [2]. In 2009, this national strategic approach was reaffirmed by all the States and Territories of Australia with the release of a National Mental Health Plan, focusing on promoting mental health and preventing mental disorders, minimizing the impact of mental illness across the whole community and protecting the rights of people with mental illness.

Several Australian states and territories have recently initiated mental health law reform, all within a human rights framework. Generally, there is an increased recognition of autonomous and supported decision making with a particular focus on enhancing informed consent through advance directives or involving a nominated support person. Increased transparency of and limitations around restrictive practices will affect activities within EDs. Community visitors and mental health tribunals are introduced to ensure frequent independent oversight and review and it is now mandatory in several jurisdictions to give patients and carers written copies of involuntary orders made about them, as well as a statement of their rights. Despite these common themes, key differences apply between mental health acts and therefore specific issues should be referred to the Act relevant to the emergency physician’s practice location.

The Australian and New Zealand mental health acts and related documents referred to in this chapter are the following:

Indigenous and cultural acknowledgement

Cultural differences in the understanding and experiences of mental illness can impact greatly on the ability to provide adequate care. While there are some cursory references to acknowledging special cultural and linguistic needs when interpreting the various mental health acts, only the Northern Territory and South Australia in Australia and the New Zealand Mental Health Acts make specific mention of indigenous people, who are known to be a particularly vulnerable group [3]. Recent legislative reform in some Australian states incorporates recognition of the needs of Aboriginal and Torres Strait Islander and other culturally diverse peoples within a general statement of principles.

The Northern Territory Act states that there are fundamental principles to be taken into account when caring for Aborigines and Torres Strait Islanders. Treatment and care needs to be appropriate to the cultural beliefs and practices of the person, their family and community and involuntary treatment for an Aborigine is to be provided in collaboration with an Aboriginal health worker.

New Zealand stipulates that powers are to be exercised in relation to the Mental Health Act with proper respect for cultural identity and personal beliefs and with proper recognition of the importance and significance to the persons of their ties with family, whanau, hapu, iwi and family group. Interpreters are to be provided if the first or preferred language is not English, with special mention of Maori and New Zealand Sign Language.

Safeguards against prejudice

New Zealand and all Australian states include a number of criteria that, alone, cannot be used to determine that a person has a mental illness and requires involuntary admission. These generally include the expression of or refusal to express particular religious, political and philosophical beliefs; cultural or racial origin; sexual promiscuity or preference; intellectual disability; drug or alcohol taking; economic or social status; immoral or indecent conduct; illegal conduct; and antisocial behaviour. The Northern Territory, Western Australia and Queensland also include past treatment for mental illness and past involuntary admission under these criteria.

Effects of drugs or alcohol

In most Australian states and New Zealand, the taking of drugs or alcohol cannot, of itself, be taken as an indication of mental illness. However, the mental health acts of New South Wales, South Australia, Tasmania, Western Australia and Victoria specify that this does not prevent the serious temporary or permanent physiological, biochemical or psychological effects of alcohol or drug taking from being regarded as an indication that a person is mentally ill. The Queensland Act acknowledges that a person may have a mental illness caused by taking drugs or alcohol.

The remaining states do not specifically exclude the temporary or permanent effects of drugs or alcohol but use definitions of mental or psychiatric illness that are broad enough to cover this. Generally, when a person is so mentally and behaviourally disordered as a result of drug or alcohol use that adequate assessment is impossible and risk of harm to self or others is high, then detaining them for the purposes of assessment and treatment is possible under all Australian and New Zealand mental health acts.

Criteria for admission and detention as an involuntary patient

All states require that an involuntary patient has a mental illness that requires urgent treatment while detained in an inpatient setting for the health (mental or physical) and safety of that patient or for the protection of others. Most states also require that the patient has refused or is unable to consent to voluntary admission. It is also emphasized that appropriate treatment must be available and cannot be given in a less restrictive setting. In New South Wales, the effects of chronicity and the likely deterioration of the person’s condition should be taken into account when determining need for involuntary admission.

Western Australia includes the protection of the patient from self-inflicted harm to the patient’s reputation, relationships or finances as grounds for involuntary admission, although future legislation is likely to remove this criterion.

In New Zealand, the doctor must have reasonable grounds for believing that the person may be mentally disordered and that it is desirable, in the interests of the person, or of any other person or of the public, that assessment, examination and treatment of the person are conducted as a matter of urgency.

Involuntary admission

The process of involuntary admission varies quite markedly across the states. It is variously known as recommendation, certification or committal. All jurisdictions require doctors to examine patients and carefully document on prescribed forms the date and time of examination as well as the particular reasons why the doctor believes that the person has a mental illness that requires involuntary treatment. In addition, patients or their advocates are to be informed of the decisions made about them and their rights under the law at all stages of the involuntary admission process. Increasingly, clinicians are required to give copies of formal orders and printed information about their rights to patients and guardians.

ACT

In the ACT, a medical or police officer is able to apprehend a mentally ill person who requires involuntary admission and is able to use reasonable force and enter premises in order to do so. The officer is required, as soon as possible, to provide a written statement to the person in charge of the mental health facility giving patient details and the reasons for taking the action.

A doctor employed by the mental health facility must examine the patient within 4 h of arrival and may authorize detention for up to 3 days. The doctor must inform the Community Advocate and Mental Health Tribunal of the patient’s admission within 12 h and the patient must receive a physical and psychiatric examination within 24 h of detention.

New South Wales

The Mental Health Act in New South Wales allows for a patient requiring involuntary admission to be detained in a declared mental health facility (which includes EDs) on the certificate of a doctor (or trained ‘accredited person’) who has personally examined the patient immediately or shortly before completing the certificate.

For a mentally ill patient, the certificate is valid for 5 days from the time of writing, whereas for a mentally disordered patient, the certificate is valid for 1 day. Mentally disordered patients cannot be detained on the grounds of being mentally disordered on more than three occasions in any 1 month.

Part of the certificate, if completed, directs the police to apprehend and bring the patient to hospital and also enables them to enter premises without a warrant.

An involuntary patient must be examined by an authorized medical officer (including emergency doctors) as soon as practicable, but within 12 h of admission. The patient cannot be detained unless further certified mentally ill or disordered. This doctor cannot be the same doctor who requested admission or certified the patient. After their own examination, the medical officer must arrange for a second examination as soon as practicable, this time by a psychiatrist. If neither doctor thinks that the person is mentally ill or disordered, then the person must be released from the hospital.

New Zealand

In New Zealand, a person aged 18 years or over may request an assessment by the area mental health service if it has seen the person within the last 3 days and believes the person to be suffering from a mental disorder. The request may be accompanied by a certificate from a doctor who has examined the ‘proposed patient’ within the preceding 3 days and who believes that the person requires compulsory assessment and treatment. The medical certificate must state the reasons for the opinion and that the patient is not a relative. The area mental health service must then arrange an assessment examination by a psychiatrist or other suitable person forthwith. If the assessing doctor considers that the patient requires compulsory treatment, the patient may be detained in the ‘first period’ for up to 5 days. Subsequent assessment may result in detention for a ‘second period’ of up to 14 more days, after which a ‘compulsory treatment order’ must be issued by a family court judge.

Northern Territory

Any person with a genuine interest in or concern for the welfare of another person may request an assessment by any medical practitioner to determine if that person is in need of treatment under the Northern Territory Mental Health Act. The assessment must then occur as soon as practicable and a subsequent recommendation for psychiatric examination made if the doctor believes that the person fulfils the criteria for involuntary admission on the grounds of mental illness or mental disturbance. The person may then be detained by police, ambulance officers or the doctor making the recommendation and taken to an approved treatment facility, where the person may be held for up to 12 h. The Northern Territory Act acknowledges that delays in this process are likely and enshrines a process to account for this, including the use of interactive video conferencing. A psychiatrist must examine and assess the recommended person at the approved treatment facility and must either admit as an involuntary patient or release the patient if the criteria for involuntary admission are not fulfilled.

A patient admitted on the grounds of mental illness may be detained for 24 h or 7 days if the recommending doctor was also a psychiatrist. Patients admitted on the grounds of mental disturbance may be detained for 72 h or have that extended by 7 days if two examining psychiatrists believe that the person still requires involuntary treatment and cannot or will not consent. Frequent psychiatric reassessment of detained and admitted patients is required to either extend admission or release patients who do not fulfil involuntary criteria.

Queensland

In Queensland, the recommendation for involuntary assessment of a patient must be made by a doctor who has personally examined the patient within the preceding 3 days and is valid for 7 days from the time the recommendation was made. The recommendation needs to be accompanied by an ‘application’ for assessment made by a person over the age of 18 years who has seen the patient within 3 days. The person making the application cannot be the doctor making the recommendation or be a relative or employee of the doctor. The recommendation enables the health practitioner, ambulance officer or police, if necessary, to take the patient to a mental health service or public hospital for assessment. Once there, or if the recommendation was made at a hospital, the assessment period lasts for no longer than 24 h.

The patient must be assessed by a psychiatrist (who cannot be the recommending doctor) as soon as practicable and, if the treatment criteria apply, will have the involuntary status upheld through an involuntary treatment order. The assessment period can be extended up to 72 h by the psychiatrist after regular review.

South Australia

In South Australia, a doctor or trained authorized health professional (who may be a nurse, allied or aboriginal health worker) who considers that a patient requires involuntary admission authorizes a Level 1 Detention and Treatment Order, which is valid for 7 days. A psychiatrist or authorized medical practitioner (senior psychiatry registrar) must examine the person within 24 h or as soon as practicable.

In recognition of the difficulties in accessing appropriate care for people in remote and rural environments, the South Australian Mental Health Act allows for audiovisual conferencing and a range of community and inpatient based treatment orders. A wider range of health professionals can authorize treatment orders so that early access to care in the least restrictive environment can occur.

Tasmania

In Tasmania, an application for involuntary admission of a person may be made by a close relative or guardians or an ‘authorized officer.’ A medical practitioner must then assess the person and, if satisfied that the criteria are met, make an order for admission and detention as an involuntary patient in an approved hospital. This initial ‘assessment order’ is valid for 72 h and gives authority for the patient to be taken to the hospital and detained, whereupon a psychiatric assessment must be carried out within 24 h and the assessment order extended for up to 72 h or discharged. A ‘treatment order’ for the continuing detention of a person as an involuntary patient can only be made by application (including an individualized treatment plan) through an independent tribunal.

Victoria

A person may be admitted to and detained in an approved mental health service once the ‘request’ and the ‘recommendation’ have been completed. The request can be completed by any person over 18 years of age, including relatives of the patient, but cannot be completed by the recommending doctor. The recommendation is valid for 3 days after completion and the recommending doctor must have personally examined or observed the patient.

The request and recommendation are sufficient authority for the medical practitioner, police officer or ambulance officer to take the person to a mental health service or to enter premises without a warrant and to use reasonable force or restraint in order to take the person to a mental health service. Prescribed medical practitioners (psychiatrists, forensic physicians, doctors employed by a mental health service, the head of an ED of a general hospital or the regular treating doctor in a remote area) are also enabled to use sedation or restraint to enable a person to be taken safely to a mental health service.

Western Australia

In Western Australia, a person who requires involuntary admission is referred, in writing, for examination by a psychiatrist in an authorized hospital. The referring doctor or authorized mental health practitioner must have personally examined the person within the previous 48 h and may also make a detention and/or transport order which allows safe transport involving the police or ambulance personnel if required. These orders are valid for up to 72 h, although there are provisions for time extensions outside the metropolitan area.

The referral for assessment is valid for 72 h (although this can also be extended); however, the patient must be examined by a psychiatrist within 24 h of admission and cannot be detained further if not examined. The patient can be detained for further assessment for up to 72 h after initial admission on the order of the psychiatrist, after which time the patient is formally admitted as an involuntary patient, discharged on a community treatment order or released.

Persons unable to recommend a patient for involuntary admission

New Zealand and most states, except for the ACT, specify that certain relationships prevent a doctor from requesting or recommending a patient for involuntary admission.

The recommending doctor cannot be a relative (by blood or marriage) or guardian of the patient and, in addition, in the Northern Territory, Queensland, Tasmania and Western Australia, the doctor cannot be a business partner or assistant of the patient. In Queensland and Tasmania, the recommending doctor cannot be in receipt of payments for the maintenance of the patient.

In New South Wales, the doctor must declare, on the schedule, any direct or indirect pecuniary interest, or those of their relatives, partners or assistants, in a private mental health facility. In Western Australia, the doctor cannot hold a licence from or have a family or financial relationship with the licence holder of a private hospital in which the patient will be treated, nor can the doctor be a board member of a public hospital treating the patient.

Use of sedation or physical restraint

From time to time a patient may need to be sedated or even restrained. The various mental health acts vary considerably in dealing with this issue and accepted clinical practice has evolved differently in each jurisdiction and does not necessarily reflect subtleties within the legislation.

Generally, patients committed involuntarily are subject to treatment necessary for their care and control and this may reasonably include the administration of sedative or antipsychotic medication as emergency treatment. In general, sedation or restraint must be the minimum that is necessary to prevent the patient from self-harming or harming others and careful documentation of the reasons for restraint and the types of restraint is required. While restrained, access to clothing, sustenance, toilet facilities and other basic comforts must be assured.

Patients who are physically or pharmacologically restrained must be closely supervised and not left alone or in the care of persons not trained or equipped to deal with the potential complications of these procedures. Transporting these patients to a mental health service should be done by suitably trained medical or ambulance staff and not delegated to police officers or other persons acting alone.

The ACT specifies that sedation may be used to prevent harm, whereas Western Australia specifies that sedation can be used for emergency treatment without consent and that the details must be recorded in a report to the Mental Health Review Board. Queensland allows a doctor to administer medication for recommended patients without consent to ensure safety during transport to a health facility.

Victoria specifically permits the administration of sedative medication by a ‘prescribed medical practitioner’ to allow for the safe transport of a patient to a mental health service. There is a schedule to complete if this is undertaken. The South Australian law stipulates that medication can only be used for therapeutic purposes and that chemical, physical restraint and seclusion is to be used as a last resort for safety reasons and not as a punishment or for the convenience of others.

The legislation is more specific with regard to the use of physical restraint or seclusion. In the ACT, this can be done to prevent an immediate and substantial risk of harm to the patient or others or to keep the patient in custody.

Queensland requires that restraint used for the protection of the patient or others can only be done on an ‘order’ but is permissible for the purposes of treatment if it is clinically appropriate. Victoria permits the restraint of involuntary patients for the purposes of medical treatment and the prevention of injury or persistent property destruction. Victoria also allows the use of restraint by ambulance officers, police or doctors in order to safely transport the patient to a mental health service, but this must be documented in the recommendation schedule. Tasmania differentiates between chemical restraint and chemical treatment and allows for both chemical and physical restraint as emergency short-term interventions to prevent harm, damage or interference, break up an affray or facilitate transport. The Chief Civil Psychiatrist is required to develop standing orders for clinical use regarding these issues.

Both the Northern Territory and Western Australia permit the use of restraint for the purposes of medical treatment and for the protection of the patient, other persons or property. In Western Australia, this authorization must be in writing and must be notified to the senior psychiatrist as soon as possible, while in the Northern Territory, it must be approved by a psychiatrist or the senior nurse on duty in the case of an emergency.

The New Zealand Mental Health Act makes minimal specific reference to restraint or sedation but enables any urgent treatment to protect the patient or others and allows hospitals and police to take all reasonable steps to detain patients for assessment and treatment. Authority is given to administer sedative drugs if necessary, but the Act mandates a record of this for the area mental health service.

New South Wales has a Reference Guide specifically for mental health issues in the ED which covers sedation and restraint issues. The law permits the use of involuntary sedation for acute behavioural disturbance in an emergency situation in order to prevent individual death or serious danger to the health of others under the common law principle of ‘Duty of Care’. The same applies for children, although consent should be sought from both children or adolescents and their parents or guardians. For the use of physical restraints, although acknowledged as a clinical decision, four pre-conditions must be met:

Emergency treatment and surgery

On occasions, involuntary patients may require emergency medical or surgical treatment. New Zealand and most states, except for Queensland, make provision for this in their legislation, in that patients can undergo emergency treatment without consent, but usually only with the approval of the relevant mental health authorities or treating psychiatrist. In New Zealand, treatment that is immediately necessary to save life, prevent serious damage to health or prevent injury to the person or others can be undertaken without consent.

Victoria has the most specific reference to this treatment by making special allowance for a patient requiring treatment that is life sustaining or preventing serious physical deterioration to be admitted as an involuntary patient to a general hospital or ED for the purposes of receiving treatment. The patient is deemed to be on leave from the mental health service and all the other provisions of the Act apply.

Apprehension of absent involuntary patients

Involuntary patients who escape from custody or who fail to return from ‘leave’ are considered in most state mental health acts to be ‘absent without leave’ (AWOL) or ‘unlawfully at large’. Authorized persons, including ambulance officers, mental health workers and police, have the same powers of entry and apprehension as for other persons to whom a recommendation or certificate relates.

In New Zealand, any compulsory patient who becomes AWOL may be ‘retaken’ by any person and taken to any hospital within 3 months of becoming absent. If not returned after 3 months the patient is deemed to be released from compulsory status.

Powers of the police

The police in all states and New Zealand have powers in relation to mentally ill persons who may or may not have been assessed by a doctor. For someone who is not already an involuntary patient and who is reasonably believed to be mentally ill, a risk to self or others and requiring care, police are able to enter premises and apprehend, without a warrant, and to use reasonable force if necessary, in order to remove the person to a ‘place of safety’. Generally, this means taking the person to a medical practitioner or a mental health service for examination without undue delay.

South Australia and Queensland specifically include ambulance or other authorized officers within this legislation and acknowledge that they often work together with police to detain and transport people for mental health assessment. In Tasmania, people may only be held in protective custody for the purposes of medical assessment for no longer than 4 h and then released if no involuntary assessment order has been made. The ACT law is moving towards replacing police with ambulance paramedics in the role of emergency apprehension and transport to hospital for assessment.

Some states (ACT, New South Wales and Victoria) make special mention of a threatened or actual suicide attempt as justification for police apprehension and transfer to a health facility. New South Wales allows police discretion after a person who appears mentally disordered has committed an offence (including attempted murder), to determine whether it is beneficial to their welfare to be detained under the mental health act rather than under other criminal law. The Victorian and South Australian Acts, in contrast, acknowledge that police do not need clinical judgement about mental illness but may exercise their powers based on their own perception of a person’s appearance and behaviour that may be suggestive of mental illness.

In New Zealand, detention by police is limited to 6 h, by which time a medical examination should have taken place. Ideally, police should not enter premises without a warrant, if it is reasonably practicable to obtain one.

The same powers apply to involuntary patients who abscond or are absent without leave, although some states have specific schedules or orders to complete for this to be done. In general, once police become aware of the patient they are obliged to make attempts to find and return them to what can be viewed as lawful custody.

Prisoners with mental illness

Mental illness among people in prison is extremely prevalent, either as a cause or as a result of incarceration. New Zealand and most Australian states and territories include provisions for prisoners with mental illness within their mental health legislation. While the healthcare of prisoners is generally managed within regional forensic systems, EDs in rural and less-well-resourced areas can become a site of care for prisoners with acute psychiatric illness.

The New Zealand Act states that prisoners with mental illness who require acute care can be transferred to a general hospital for involuntary psychiatric treatment if the prison is unable to provide that care. Australian Acts in New South Wales, the Northern Territory and Victoria all include similar specific provisions for mentally ill prisoners to be able to access involuntary care in public hospitals if needed. New South Wales has separate legislation specifically dealing with mental illness in the forensic setting (NSW Mental Health [Forensic Provisions] Act 1990), while the Tasmanian Act includes a large section involving the admission, custody, treatment and management of forensic patients within secure mental health units. The Victorian Act has some detail in this matter although, in practice, rarely relies on public hospitals due to the development of a stand alone forensic psychiatric hospital. Both Queensland and Western Australia enshrine the same principle of allowing prisoners access to general psychiatric treatment, although their legislation is less specific, while the South Australian Act does not mention prisoners at all. The ACT will incorporate care for prisoners with mental illness in their new Act, emphasizing concern for the community who may be affected by prisoners with mental illness, improving communication between forensic and health services and allowing prisoners with mental illness access to appropriate healthcare. In all jurisdictions, there is significant overlap with other laws such as Crimes and Prisons Acts, which also mention health needs of prisoners.

Offences in relation to certificates

Most states and New Zealand specify in their respective mental health acts that it is an offence to make wilfully a false or misleading statement in regard to the certification of an involuntary patient.

Some states (New South Wales, South Australia, the Northern Territory and Victoria), except in certain circumstances, also regard failure personally to examine or observe the patient as an offence.

Protection from suit or liability

New Zealand and all Australian states specify in their Mental Health Acts that legal proceedings cannot be brought against doctors acting in good faith and with reasonable care within the provisions of the Mental Health Act relevant to their practice.

Information and patient transfer between jurisdictions

All Australian states and territories include special provisions for the apprehension, treatment and transfer of mentally ill patients from other jurisdictions. State governments can enter into agreements to recognize warrants or orders made under ‘corresponding law’ in other states or territories, as long as appropriate conditions are met within their own law. Thus, a patient under an involuntary detention or community treatment order in another state can be apprehended and treated under the corresponding law in a different jurisdiction. Authority is given to police and doctors to detain such patients and information to facilitate assessment and treatment can be shared between states.

Deaths

Involuntary patients should be considered to be held in lawful custody, whether in an ED, as an inpatient in a general hospital or psychiatric hospital or as an AWOL. As such, the death of such a patient must be referred for a coroner’s investigation.

25.2 The coroner: the Australasian and UK perspectives

Australasia