25: Emergency Medicine and the Law

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Section 25 Emergency Medicine and the Law

Edited by George Jelinek

25.1 Mental health and the law: the Australasian and UK perspectives 751
25.2 The coroner: the Australasian and UK perspectives 760
25.3 Consent and competence – the Australasian and UK perspectives 767
25.4 Privacy and confidentiality 771

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

Georgina Phillips, Suzanne Mason, Simon Baston

ESSENTIALS

1 The emergency department is frequently the point of access to the mental health system.
2 Emergency physicians need to be able to distinguish between patients with physical and those with psychiatric illness.
3 Patients should only be committed involuntarily to an approved hospital if they have a mental illness requiring immediate treatment for their own health or safety or the protection of others, and if adequate treatment cannot be obtained in a less restrictive manner.
4 Emergency physicians need to have a sound working knowledge of mental health legislation as it relates to their practice and to the jurisdiction in which they work.

Introduction

The ED is frequently the interface between the community and the mental health system. In recent years changes in health policy have resulted in ‘mainstreaming’ of mental health services, so that stand-alone psychiatric services are less common and services are more likely to be provided in a general hospital setting. Linked to this has been a move away from managing long-term psychiatric patients in institutional settings, so that many of these former patients are now living in the community with or without support from mental health services.

Traditionally, by virtue of their accessibility, EDs have been a point of access to mental health services for persons with acute psychiatric illness, whether this be self or family referral or by referral from ambulance, police or outside medical practitioners. An important function of an ED is to differentiate between those who require psychiatric care for a psychiatric illness, and those who present with a psychiatric manifestation of a physical illness and who require medical care. Admission of a patient with a psychiatric manifestation of a physical illness to a psychiatric unit may result in further harm to or death of the patient.

In the UK and Australasia, doctors in general are empowered by legislation to detain a mentally ill person who is in need of treatment. Mental illness, particularly its manifestation as self-harm, is a common ED presentation (in the UK, making up around 1–2% of new patient attendances, and up to 5% of attendances in Australasia), and emergency physicians require not only the clinical skills to distinguish between those who require psychiatric or medical intervention, but also a sound working knowledge of the mental health legislation and services relevant to the state where they practise. This ensures that patients with psychiatric illness are managed in the most appropriate way, with optimal utilization of mental health resources and with the best interests and rights of the patient and the community taken into consideration.

Whilst there are variations in mental health legislation between the UK, Australia and New Zealand, all legislation recognizes fundamental common principles that respect individual autonomy and employ least restrictive management practices. The World Health Organisation (WHO) advises 10 basic principles of mental healthcare law, including enshrining geographical, cultural and economic equity of access to mental health care, acceptable standards of clinical assessment, facilitating self-determination, minimizing restrictive treatment and enshrining regular and impartial decision-making and review of care.1 These themes are all present in Australasian and UK law, and awareness of such principles aids the clinician in delivering humane and ethical treatment for mentally unwell patients who seek emergency care.

Variations in practice

Mental health legislation in England and Wales

The National Service Framework for Mental Health

The National Service Framework for Mental Health produced by the Department of Health in the UK (1999) is aimed at improving quality and addresses the mental health needs of working age adults up to 65 years. It states as one of its standards that:

‘Any individual with a common mental health problem should be able to make contact round the clock with the local services necessary to meet their needs and receive adequate care.’

Although EDs do not provide the ideal environment for a mental health assessment, they are likely to continue to provide an entry point for people with mental health problems. Easy access to the ED can lead to individuals with acute mental health problems seeking help directly, making up to perhaps 5% of ED attenders.

Two pieces of legislation cover the care and treatment of patients with disorders of the brain or mind. The Mental Health Act (1983) deals with compulsory assessment and treatment of people with mental illnesses, while the Mental Capacity Act (2005) deals with people who are unable to make decisions about their medical treatment for themselves for various reasons.

Mental Health Act

Definition of mentally ill or mental illness

According to the 1983 Mental Health Act, mental illness is undefined. However, in practice it includes conditions such as schizophrenia, bipolar disorder, depression, psychosis and organic brain syndromes. Mental impairment is defined as ‘a state of arrested or incomplete development of mind which includes significant impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned’. A psychopathic disorder is defined as ‘a persistent disorder or disability of mind which results in abnormally aggressive or seriously irresponsible conduct on the part of the person concerned’. The Act does not cover promiscuity or other immoral conduct, or sexual deviancy, which in the past could result in incarceration in psychiatric hospitals or dependence on drugs or alcohol.

Detention of patients with mental illness

The Mental Health Act 1983 provides legislation with regard to the management of patients with a mental illness unwilling to be admitted or detained in hospital voluntarily, where this would be in the best interests of the health and safety of patients and others. For the purposes of the Act, patients in the ED are not considered inpatients until they are admitted to a ward. In order for legislation to be imposed it is necessary for two conditions to be satisfied: the patient must be suffering from a mental illness and emergency hospital admission is required because the patient is considered to be a danger to themselves or others.

Detention under the Mental Health Act does not permit treatment for psychiatric or physical illness. Treatment can be given under common law where the patient is considered to pose a serious threat to themselves or others. Otherwise all treatment must be with the patient’s consent.

Section 2 of the Mental Health Act facilitates compulsory admission to hospital for assessment and treatment for up to 28 days. The application is usually made by an approved social worker or the patient’s nearest relative and requires two medical recommendations, usually from the patient’s general practitioner and the duty senior psychiatrist (who is approved under Section 12 of the Mental Health Act). In the ED, the responsibility for coordinating the procedure often lies with the emergency physician.

Section 3 of the Mental Health Act covers compulsory admission for treatment. Once again, recommendations must be made by two doctors, one of whom is usually the general practitioner and the other a psychiatrist approved under Section 12 of the Act. The application is usually made by an approved social worker or the patient’s nearest relative. Detention is for up to 6 months but can be renewed.

Section 4 of the Mental Health Act covers emergency admission for assessment and attempts to avoid delay in emergency situations when obtaining a second recommendation could be dangerous. It requires the recommendation of only one doctor, who may be any registered medical practitioner who must have seen the patient within the previous 24 h. The order lasts for 72 h. Application can be made by the patient’s nearest relative or an approved social worker. In practice, the application of Section 4 of the Mental Health Act rarely happens. Usually Section 2 or 3 is the preferred option.

Section 5 (2) – doctors holding power and Section 5 (4) – nurses holding power of the Act allow the detention of patients who are already admitted to hospital until a more formal Mental Health Act assessment can take place. Unfortunately, presence in the ED is not considered to constitute admission to hospital, and this section is, therefore, not applicable to the ED.

A new draft Mental Health Bill published in 2002 was opposed by professional and patient groups alike. It aimed to introduce a new legal framework for the compulsory treatment of people with mental disorders in hospitals and the community. The new procedure involved a single pathway in three stages: a preliminary examination, a period of formal assessment lasting up to 28 days and treatment under a Mental Health Act order. In order for the compulsory process to be used, four conditions needed to be satisfied: the patient must have a mental disorder, the disorder must warrant medical treatment, treatment must be necessary for the health and safety of the patient or others, and an appropriate treatment for the disorder must be available. The draft Bill made provision for treatment without consent as it is justified under the European Convention on Human Rights Article 8 (2) in the interests of public safety or to protect health or moral standards.

The resulting debate saw much of the draft Bill being scrapped in favour of amendments being made to the existing Mental Health Act. This included the creation of community treatment orders and a broader definition of mental disorder.

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. Firstly, 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:

• Understand the information relevant to the decision.
• Retain the information for the period of decision-making.
• Use or weigh that information as part of the process of making a decision.
• Communicate their decisions.

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:

• Any action must be in the best interest of the patient.
• Anything done must be the least restrictive of the patient’s rights and freedoms.
• Where time can be afforded every effort should be made to enable the patient to make his or her own decision.
• Treatment should not be delayed while attempts are made to establish the validity of any advance decision.
• Medical staff have a duty of care to the incapacitated patient.

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 Nevertheless, 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 referred to in this chapter are the following:

ACT – Mental Health (Treatment and Care) Act 1994 and amendments 2007
New South Wales – Mental Health Act 1990 and amendments (to be repealed by the commencement of the Mental Health Act 2007)
New Zealand – Mental Health (Compulsory Assessment and Treatment) Act 1992 and the 1999 Amendment
Northern Territory – Mental Health and Related Services Act 1998 and amendments 2005
Queensland – Mental Health Act 2000
South Australia – Mental Health Act 1993 and amendments
Tasmania – Mental Health Act 1996
Victoria – Mental Health Act 1986 and incorporating amendments as at 1 July 2007
Western Australia – Mental Health Act 1996.

Sections of the various mental health acts relevant to emergency medicine include those dealing with:

• the definition of mentally ill
• indigenous and cultural acknowledgment
• the effects of drugs or alcohol
• criteria for detention and admission as an involuntary patient
• involuntary admission
• persons unable to recommend a patient for involuntary admission
• physical restraint and sedation
• emergency treatment
• powers of police
• prisoners with mental illness
• amendment of documents
• offences in relation to documents
• information and patient transfer between jurisdictions
• deaths.

Definition of mentally ill or mental illness

For the purposes of their respective mental health acts, New Zealand and all the Australian states and territories define mental illness or disorder as follows.

Australian Capital Territory

The Australian Capital Territory (ACT) Act defines a psychiatric illness as a condition that seriously impairs (either temporarily or permanently) the mental functioning of a person and is characterized by the presence in the person of any of the following symptoms: delusions, hallucinations, serious disorder of thought form, a severe disturbance of mood or sustained or repeated irrational behaviour indicating the presence of these symptoms.

The ACT Mental Health Act also defines ‘mental dysfunction’ as a ‘disturbance or defect, to a substantially disabling degree, of perceptual interpretation, comprehension, reasoning, learning, judgement, memory, motivation or emotion’.

New South Wales

The New South Wales Act defines mental illness in the same way as the ACT, but in addition distinguishes between a mentally ill person and a mentally disordered person.

A person is mentally ill if suffering from mental illness and, owing to that illness, requires care, treatment or control in order to protect the patient or others from serious physical harm. A person is also considered to be mentally ill if suffering from a mental illness that is characterized by a severe disturbance of mood or sustained or repeated irrational behaviour and requires care, treatment or control to protect the person from serious financial harm or damage to the person’s reputation. There is also an acknowledgement of chronicity and the effects of likely deterioration, which should be taken into account when determining whether a person has mental illness.

A person (whether or not the person is suffering from mental illness) is mentally disordered if the person’s behaviour for the time being is so irrational as to justify conclusion on reasonable grounds that temporary care, treatment or control of the person is necessary for the person’s own protection from serious physical harm, or for the protection of others from serious physical harm.

New Zealand

In New Zealand, the Mental Health Act defines a mentally disordered person as possessing an abnormal state of mind, whether continuous or intermittent, characterized by delusions or by disorders of mood, perception, volition or cognition to such a degree that it poses a danger to the health or safety of the person or others, or seriously diminishes the capacity of the person to take care of themselves.

Northern Territory

In the Northern Territory, mental illness means a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person in one or more of the areas of thought, mood, volition, perception, orientation or memory and is characterized by the presence of at least one of the following symptoms: delusions, hallucinations, serious disorders of the stream of thought, serious disorders of thought form or serious disturbances of mood. A mental illness is also characterized by sustained or repeated irrational behaviour that may be taken to indicate the presence of at least one of the symptoms mentioned above. The Northern Territory Act goes further, to specify that the determination of mental illness is only to be made in accordance with internationally accepted clinical standards and makes special mention of the World Health Association and both UK and American mental disorder classification guidelines.

Similar to the New South Wales Act, there is a provision in the Northern Territory for those who are ‘mentally disturbed’, which means behaviour of a person that is so irrational as to justify the person being temporarily detained under the Act.

Queensland

The Queensland Act defines mental illness in a similar way to Victoria, in that it is a condition characterized by a clinically significant disturbance of thought, mood, perception or memory, in accordance with internationally acceptable standards.

South Australia

In the South Australian Act mental illness means any illness or disorder of the mind.

Tasmania

A mental illness is a mental condition resulting in serious distortion of perception or thought, or serious impairment or disturbance of the capacity for rational thought. Also included in the Tasmanian definition is a serious disorder of mood, or involuntary behaviour or serious impairment of the capacity to control behaviour.

Victoria

A person is mentally ill if they have a mental illness, being a medical condition characterized by a significant disturbance of thought, mood, perception or memory.

Western Australia

Persons have a mental illness if they suffer from a disturbance of thought, mood, volition, perception, orientation or memory that impairs judgement or behaviour to a significant extent.

Indigenous and cultural acknowledgement

Cultural differences in the understanding and experiences of mental illness can impact greatly on the ability to provide adequate care. Whilst there are some cursory references to acknowledging special cultural and linguistic needs when interpreting the various mental health acts, only the Northern Territory 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

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, except South Australia, 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 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 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. Victoria, Western Australia, Queensland, the Northern Territory and the ACT 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.

Both New South Wales and Western Australia include the protection of the patient from self-inflicted harm to the patient’s reputation, relationships or finances as grounds for involuntary admission.

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.

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 hospital on the certificate of a doctor 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 the ‘medical superintendent’ 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 superintendent’ 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.

A patient who has been certified as mentally disordered, but not subsequently found to be mentally ill, cannot be detained for more than 3 days and must be examined by the ‘medical superintendent’ at least once every 24 h and discharged if no longer mentally ill or disordered, or if appropriate and less restrictive care is available.

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 who considers that a patient requires involuntary admission is required to fill in the appropriate order for admission and detention in an approved treatment centre. This is valid for 3 days, unless revoked, and requires that the person is examined by a psychiatrist as soon as practicable but within 24 h. The psychiatrist may revoke the order or may order further detention of up to 21 days.

The South Australian Mental Health Act enables police to enter premises, apprehend and convey a mentally ill person to a medical practitioner for examination. It also enables ambulance officers to convey, using reasonable force if necessary, a mentally ill person to a place for assessment or care.

Tasmania

In Tasmania, an application for involuntary admission of a person may be made by 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 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 initial order confirmed or discharged. A further order for the continuing detention of a person as an involuntary patient can be made if the appropriate criteria are met and after two doctors (at least one a psychiatrist and neither having written the initial order) have examined the patient. A continuing care order can be valid for up to 6 months.

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.

Once admitted, the patient must be seen by a medical practitioner employed by the mental health service as soon as possible, but must be seen by a registered psychiatrist within 24 h of admission. The admitting doctor must make an involuntary treatment order, which allows for the detention of the patient until psychiatrist review and the urgent administration of medication if needed. The psychiatrist can then either authorize further detention, a community treatment order, or discharge the patient.

Western Australia

In Western Australia a patient who requires involuntary admission is referred, in writing, for examination by a psychiatrist in an authorized hospital (all public and certain private hospitals). The referring doctor must have personally examined the patient within the previous 48 h. If no suitable alternatives are available and the condition of the patient requires their involvement, the referring doctor may direct police to apprehend the patient, by writing a ‘transport order’. This enables police to apprehend, enter premises, and search the patient or premises. The transport order lapses 72 h after it was made, or at the end of the seventh day after the initial referral was made.

The referral for assessment is valid for 7 days; 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 an ‘authorized hospital’. In Tasmania, the doctor cannot be on the staff of a private hospital to which the patient will be admitted, and, 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.

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 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. Tasmania permits its use, on the approval of the responsible medical officer, for the medical treatment or protection of the patient, other persons or property. 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.

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, whilst 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.

Emergency treatment and surgery

On occasions, involuntary patients may require emergency medical or surgical treatment. New Zealand and most states, except for Queensland and Tasmania, 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’, although the ACT Act makes no reference to this. In the remaining states and the Northern Territory, authorized persons, including staff of the mental health service and police, have the same powers of entry and apprehension as for other persons to whom a recommendation or certificate relates. In Tasmania these powers exist for 28 days from the time of going AWOL, whereas in Victoria they apply for 12 months, after which time the patient is automatically discharged unless the chief psychiatrist considers it appropriate for the patient to remain, theoretically at least, in custody. Queensland, New South Wales, the Northern Territory, South Australia and Western Australia do not specify a time limit for the return of AWOL patients.

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 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 admission order has been made.

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 Act, in contrast, acknowledges 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 amongst 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. Whilst the health care 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. The Victorian Act is most detailed 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, whilst the Tasmanian, South Australian and ACT Acts do not mention prisoners at all. In all jurisdictions, there is significant overlap with other laws such as Crimes and Prisons Acts, which also mention health needs of prisoners.

Amendment of documents

New South Wales, Tasmania, Victoria, the Northern Territory and Western Australia specify that the amendment or correction of documents in relation to the admission of an involuntary patient is permissible, without the patient being discharged or returned to the recommending doctor or their status being changed. Western Australia does not specify a time limit for this to be done, but in Tasmania it must be done within 14 days, in Victoria and the Northern Territory within 21 days and in New South Wales within 28 days. The documents must be amended by the person who signed the original and not compromise the sufficiency of the grounds on which the involuntary order was made. The New Zealand Act makes no reference to the amendment of documents.

Offences in relation to certificates

Most states and New Zealand specify in their respective mental health acts that it is an offence to wilfully make 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 to personally examine or observe the patient as an offence.

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