Mental health crisis response and transport by authorised persons
The MHW Act has introduced a health led response principle to mental health crisis response in Victoria. These principles require that the exercising of powers by authorised persons relating to mental health crisis responses and transport must:
wherever reasonably practicable in the circumstances be health-led. Where it is not reasonably practicable, the exercise of powers must, so far as is reasonably practicable, be health-informed (s 228);
be informed by a proper consideration of the mental health and wellbeing principles (s 229); and
be undertaken in the least restrictive way possible, so far as reasonably practicable in the circumstances (s 230).
Language has been updated in the MHW Act to reflect a health-centred approach. The framework for responding to people experiencing a mental health crisis in the community and providing transport under the MHW Act uses the language ‘care and control’ rather than ‘apprehension’ or ‘detention’ which is more commonly associated with law enforcement legislation or punitive measures.
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The MHW Act defines ‘authorised person’ and ‘authorised health professional’. People that fall within these definitions have an important role to play in relation to mental health crisis responses and providing transport under the MHW Act.
Authorised persons are:
police officers;
registered paramedics employed by an ambulance service as defined in section 3(1) of the Ambulance Services Act 1986 (Vic);
protective services officers;
registered medical practitioners employed or engaged by a designated mental health service;
authorised mental health practitioners; and
a member of a prescribed class of person (s 3).
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An authorised person may take a person into care and control if satisfied that the person appears to have a mental illness and because of the person’s apparent mental illness, it is necessary to take them into care and control to prevent imminent and serious harm to them or another person (s 232).
After taking a person experiencing a mental health crisis in the community into care and control, an authorised person must arrange for the person to be examined by a registered medical practitioner or an authorised mental health practitioner. A person can either be examined:
at or near the place they were taken into care and control; or
at a specified body.
This normally means the person is taken to the nearest hospital emergency department or designated mental health service. Authorised health professionals, including paramedics, may assist police by:
providing transport;
providing advice to support health-informed responses; and
exercising any of the other powers of authorised persons.
On arrival at a specified body the person must be transferred and accepted into the care and control of a registered medical practitioner, an authorised mental health practitioner or a registered nurse. The care and control must be accepted as soon as it is reasonably practicable and safe to do so (s 235). The person must be examined as soon as practicable.
An authorised person no longer has care and control of a person if:
the person has absconded;
a registered medical practitioner or authorised mental health practitioner has examined the person and either made a community assessment order or determined that the criteria for making an assessment order do not apply;
the person has been accepted into the care and control of a person at a specified body; or
the care and control of the person has been transferred to another authorised person (s239).
An authorised person may also release a person from their care and control if they are satisfied that care and control is no longer necessary to prevent imminent and serious harm to the person or another person. Care and control ends if a person is released on this basis.
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Authorised persons may take a person into care and control for the purpose of providing transport under any provision of the MHW Act. This may include transport of compulsory patients to or between hospitals, designated mental health services or other specified bodies (s 241).
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Search
The MHW Act includes specific requirements that authorised persons must follow when searching a person, this includes that the search must be the least invasive kind of search practicable in the circumstances (s 247).
A search must be conducted in a way that provides reasonable privacy and be done as quickly as is reasonably practicable. If a search involves running hands over a person the search must be conducted by an authorised person (or another person under the direction of an authorised person) who is nominated by the person being searched or is of the gender preferred by the person, wherever practicable. A person’s gender is determined by how they identify.
If the person being searched is 16 years of age or under, the search should be conducted in the presence of a parent, carer or supporter of the person. If this is not reasonably practicable another adult should be present.
Entry
In limited circumstances, authorised persons may (s 246):
enter a premises where they are satisfied on reasonable grounds the person may be found;
search a person if they reasonably suspect that person is carrying something that presents a danger to themselves or anyone else;
seize items found during a search if the authorised person is reasonably satisfied that the thing presents a danger;
use bodily restraint if: all reasonable and less restrictive options have been tried or considered and have been found to be unsuitable; and
the use of bodily restraint is necessary to prevent imminent and serious harm to the person or anyone else.
All authorised persons may assist one another in performing their duties under the MHW Act.
Seize and secure
An authorised person may seize a thing found as a result of a search if reasonably satisfied that the thing presents a danger to the health and safety of the person or another person (s 249).
Bodily restraint
An authorised person may use bodily restraint on a person if all reasonable and less restrictive options have been tried or considered and have been found to be unsuitable and the use of bodily restraint is necessary to prevent imminent and serious harm to the person or to another person (s 250).
Chemical restraint
Chemical restraint (s 139) can be used during transport if a registered medical practitioner is satisfied it is necessary to achieve the permitted purpose under section 127; that is, to prevent imminent and serious harm to that person or another person.
If the force or restraint used is unnecessary or disproportionate, a person can complain to the Victorian Ombudsman or Victorian MHWC if the force or restraint was used by a person who works for a mental health and wellbeing service provider (see ‘Victorian Mental Health and Wellbeing Commission’, below). 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.
For more information, see Chapter 12.4: Complaints against Victorian Police. Human rights under the Human Rights Charter may also have been breached (see ‘Charter of Human Rights and Responsibilities Act’, below).
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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. This can only occur 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. The chief psychiatrist may also direct a transfer on the same grounds (MHW Act s 223). Regard must be had to the person’s views and preferences and those of others, in accordance with section 224.
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 226).
Mental health crisis response and transport by authorised persons
Chapter: 8.4: Mental illness
Contributor: Kate Windmill, Director of Legal Practice, Mental Health Legal Centre
Current as of: 1 September 2024
Law Handbook Page: 751
Next Section: Safeguards and complaints
