There is now a higher threshold for police to apprehend a person they suspect to have a mental illness, and protective service officers have lost the police-like power. The power of police to apprehend a person to prevent serious and imminent harm is covered, and the requirement to transport a person to a designated mental health service.
Apprehension by police to prevent serious and imminent harm
The police can apprehend a person (s 351) if they are satisfied that the person appears to have a mental illness, and because of that they need to be apprehended, to prevent serious and imminent harm to themselves or another person. No warrant is required. This threshold is higher than section 10 under the MHA 1986, which only required assessment of a likelihood of serious bodily harm. In addition, protective services officers no longer have these police-like powers.
As soon as practicable after apprehending a person, the police must arrange for the person to be taken to a registered medical practitioner, mental health practitioner or to hospital, for an examination to determine whether to make an assessment order.
A mental health practitioner is a registered nurse or psychologist, a social worker or registered occupational therapist employed or engaged by a designated mental health service.
Police may enter any premises where they are satisfied on reasonable grounds that the person may be found. They may use reasonable force after first announcing their authority to enter and the basis for that authority, and giving any person at the premises an opportunity to permit the police entry (s 353). They may also use bodily restraint, provided it is in accordance with section 350.
Section 352 permits the authorised psychiatrist to arrange for a person to be apprehended and taken to a designated mental health service if that person is subject to an inpatient assessment order, ITTO, ITO or inpatient court assessment order, and is absent without leave.
Under section 353, where a person is to be taken to or from a designated mental health service (e.g. if they are absent without leave, or their order has been varied to an inpatient order and they need to be taken to hospital) an authorised person is permitted to enter any premises where they are satisfied on reasonable grounds that the person may be found. They may use reasonable force after first announcing their authority to enter and the basis for that authority, and giving any person at the premises an opportunity to permit the entry.
An authorised person is defined as a police officer, ambulance paramedic, registered medical practitioner employed or engaged by a designated mental health service, a mental health practitioner or a prescribed person.
The authorised person is also empowered in certain circumstances to search the person before taking them to the designated mental health service (s 354). However, they must preserve the person’s privacy and dignity during the search, in accordance with section 355.
An authorised person can use bodily restraint if necessary to prevent serious and imminent harm to the person or someone else, provided all reasonable and less restrictive options have been tried or considered and found not suitable (s 350(1)(a)). A registered medical practitioner may administer or direct a nurse or paramedic to sedate the person if the same threshold criteria are met (s 350(1)(b)).
These provisions also apply in circumstances where a person’s community assessment order, CTTO or CTO is varied to an inpatient order. Section 58(4) authorises a person to be taken as soon as practicable to a designated mental health service if they do not go of their own accord.
Given the change in the law, it is envisaged that new protocols may be developed between Victoria Police and mental health services, as well as between mental health services and Ambulance Victoria to guide the implementation of these provisions. For an update, visit www.health.vic.gov.au/mentalhealth.
If the force or restraint used is unnecessary or disproportionate, a person can complain to the Victorian Ombudsman or Victorian Mental Health Complaints Commissioner if the force or restraint was used by a person who works for a MHSP (see Taking a problem to an ombudsman, or “Victorian Mental Health Complaints Commissioner”). In the case of a Victoria Police officer using unnecessary or disproportionate force or restraint, a complaint can be made to the Police Conduct Unit of Victoria Police, or to the Independent Broad-based Anti-corruption Commission (which took over the role and functions of the Office of Police Integrity on 10 February 2013).
The authorised psychiatrist may vary a person’s assessment order, court assessment order (TTO or TO) to specify that they be assessed or treated by another designated mental health service only if it is necessary for the person’s assessment or treatment, and the authorised psychiatrist of the other designated mental health services approves the variation (s 65). Regard must be taken of the person’s views and preferences and those of others, in accordance with section 65(4). The Chief Psychiatrist may also direct a transfer on the same grounds.
The person may apply to the MHT for a review of a decision to transfer within 20 business days after the variation of the order. The MHT may grant the application and ensure they are assessed or treated at the original service, or refuse to grant the application (s 66).