Emergency Apprehension and Detention

Contributed by Dr Stephen Tang, Lecturer, ANU College of Law and current to March 2022.

If there are immediate and serious concerns about a person’s mental health and wellbeing, a person can be brought into an approved mental health facility to assess whether they need treatment, care or support.

The person can then be required to stay in the facility for up to 14 days for further assessment and to receive treatment. This time also allows the treating team to decide whether it is necessary to apply for a Mental Health Order to allow for longer-term treatment, either as an inpatient or in the community.

The authority to do these things is found in Chapter 6 of the Act. Because the apprehension and detention of a person under these powers can be intrusive on the human rights and freedom of the person, the Act contains strict requirements and timeframes for decisions to be made.

There are several separate legal components to the emergency apprehension and detention process:

• Emergency Apprehension (EA): where a police officer, paramedic, Mental Health Officer or doctor requires a person to go with them to an approved mental health facility for assessment.
• Initial detention and examination: where a person is detained for a short period of time at the facility while they receive an initial mental health assessment.
• Emergency Detention – 3 days (ED3): where two doctors have examined the person and have authorised the detention of the person for three days to allow for further assessment, treatment, care or support.
• Emergency Detention – 11 days (ED11): where ACAT authorises the extension of emergency detention following an ED3, which can be up to a further 11 days.

Emergency Apprehension (EA)

In an emergency situation, a person can be apprehended and brought to the Emergency Department of the Canberra Hospital by a police officer, ambulance paramedic, Mental Health Officer, or a doctor (under section 80, a person can be taken to any ‘approved mental health facility’, but in accordance with ACT Health policy, only the Canberra Hospital Emergency Department and the Dhulwa Mental Health Unit are equipped and authorised to accept people brought in on an EA; See the list of Approved Mental Health Facilities). Under section 80 of the Act, the circumstances under which a person can be apprehended depends on who is involved in carrying out the apprehension.

Who can apprehend someone and when?

A police officer or paramedic can apprehend a person and take them to the Canberra Hospital if they have a reasonable belief that:

• The person has a mental disorder or mental illness, and
• Either of the following apply:
  ○ The person has attempted, or is likely to attempt suicide, or
  ○ The person has attempted, or is likely to attempt, to inflict serious harm to themselves or someone else (s 80(1)); and
  
• The person requires an immediate examination by a doctor and does not agree to be examined immediately.

Police officers and ambulance paramedics can use their authority to apprehend someone under section 80 of the Act when they are are responding to a situation in which the person appears to be affected by mental illness or a mental disorder and is at risk of harm.

Note: Always call Triple Zero (000) if there is a life-threatening situation which requires the immediate attendance by police or ambulance services. The Crisis Assessment and Treatment Team (CATT) is a 24-hour outreach and assessment service provided by ACT Health. CATT can be contacted on 1800 629 354 or 6205 1065 in a mental health crisis situation where an immediate response from emergency services is not required.

A Mental Health Officer* *or a doctor can apprehend a person and take them to the Canberra Hospital if they have a reasonable belief that:

• The person has a mental disorder or mental illness;
• Either of the following apply:
  ○ The person requires immediate mental health treatment, care or support, or
  ○ The person’s condition will deteriorate within 3 days to such an extent that the person would require immediate treatment, care or support;
• The person has refused to receive the treatment, care or support which the mental health officer or doctor believes is necessary;
• The person needs to be admitted and detained in an approved mental health facility, either:
  ○ For their own health or safety,
  ○ For their social or financial wellbeing, or
  ○ For the protection of someone else or the public (s 80(2)).

There are more requirements for a Mental Health Officer or doctor to apprehend a person because they are making an assessment of the person based on their training and experience as a mental health professional.

What happens when a person is apprehended?

In accordance with ACT Health policies and procedures, a person who has been apprehended under section 80 of the Act (‘put on an EA’) will be taken directly to the Emergency Department of the Canberra Hospital.

As part of apprehending a person and taking them to the hospital, police officers, paramedics, mental health officers and doctors can also (s 263 and 264):

• Enter a place (including a private residence) with reasonable assistance and using the minimum force necessary, if this is necessary in order to apprehend the person;
• Use reasonable and necessary assistance and force to apprehend the person;
• Search the person if there are reasonable grounds to believe that the person is carrying anything that:
  ○ could be a danger to the person conducting the apprehension, or to the person themselves;
  ○ could be used used to assist the person to escape after being apprehended; and
• Temporarily seize items which have been located in the search and which are dangerous or could help the person to escape.

Initial detention and examination

Initial detention

This part of the emergency detention process arises when either of the following things happens:

• A person is brought to the Emergency Department of the Canberra Hospital (or any other Approved Mental Health Facility) under an EA described above (s 80(1)); or
• A person attends the Canberra Hospital Emergency Department (either after arriving voluntarily, or being brought in by someone else, such as a family member), and a doctor or mental health officer at the hospital believes that the person meets the EA criteria described above (s 80(2)).
  

In either case, the person is temporarily detained at the hospital under section 81 of the Act. This detention is to ensure that the person stays at the hospital and is kept in a safe environment so that they can assessed to see whether they require further assessment or treatment.

The person must receive this initial examination within 4 hours of arriving at the hospital (s 84). If they do not receive an examination within this time, two things can happen. First, the treating team may may release the person from detention. Alternatively, if the Emergency Department staff believe that it would be unsafe to release the person, they can tell a consultant psychiatrist who can authorise an extension of up 2 hours for the examination to take place (s 84(4)). If this happens, the Chief Psychiatrist and the Public Advocate must be given an explanation about why the person was not seen within 4 hours. If the person is still not seen after 6 hours after they arrive, they must be released from detention (s 84(5)). The Chief Psychiatrist and Public Advocate must also be informed if this happens (s 84(6)).

While the person is temporarily detained, the person is not free to leave the hospital, and reasonable steps can be taken by hospital staff and security officers to ensure that the person remains at the hospital and does not cause harm to themselves or other people (s 81(3)).

Initial examination

The initial examination of a person who has been temporarily detained must be conducted by either:

• A consultant psychiatrist;
• A psychiatric registrar in consultation with a consultant psychiatrist; or
• Another doctor (e.g. an Emergency Department doctor) in consultation with a consultant psychiatrist (s 84(7)).
  

The doctor must conduct this examination in person, although if they are required to consult with a consultant psychiatrist, they may do this by phone. The doctor must also consider any other reliable and relevant information which is available about the person’s condition. In practice, the person will be examined by two doctors so that they can make a decision about the authorisation of emergency detention, unless it is very clear to the treating team that detention is not necessary.

The purpose of the initial examination is to determine whether emergency detention of the person should be authorised. The doctors will consider the criteria for detention contained in section 85(1)(a), which require all of the following to be met:

• The person requires immediate treatment, care or support;
• The person has refused to receive the treatment, care or support proposed by the treating team;
• Detention at the hospital is necessary either:
  ○ For the person’s own health or safety,
  ○ For the person’s social or financial wellbeing, or
  ○ For the protection of someone else or the public; and
• Adequate treatment, care or support cannot be provided in a less restrictive environment (s 85(1)(a). The ACAT’s decision in In the matter of ED (Mental Health) [2017] ACAT 84 provides some helpful explanation of how these criteria should be applied).
  

If the doctors do not believe that all of the above criteria are met, they must release the person from initial detention. This means that the person is free to leave the hospital, although the person may be admitted and treated as a voluntary patient if the treating team agree to this, and the person also provides consent (or, if they do not have decision-making capacity to do so, have consent provided by an authorised person, such as a guardian).

Authorisation of emergency detention

Emergency detention for up to 3 days (ED3)

If both doctors have examined the person and independently agree that all the criteria above (in section 85(1)(a)) are met, they can authorise the emergency detention of the person for a period of up to 3 days (s 85(1)). This is informally known as an ED3. Both doctors must sign the Authorisation/Notification of Involuntary Detention form before the detention is authorised.

A copy of this form is provided to the ACAT and the Public Advocate to notify them that the person has been detained and why. The treating team must also take steps to inform relevant people, such as the person’s guardian, person appointed under a power of attorney, Nominated Person, health attorney, if applicable. If the person being detained is under 18, the parents (or people with parental responsibility) should also be notified (s 89).

Extension of emergency detention for up to a further 11 days (ED11)

If a person has been detained on an ED3, the treating team may apply for an extension of the period of emergency detention so that the person can continue to receive treatment, care and support. This extension of detention is informally known as an ED11, because the maximum length of the extension is 11 days (s 85(2) and (3)). This means that a person could be detained for up to 2 weeks (3 + 11 days) under the emergency detention provisions of the Act.

Unlike an ED3, an ED11 must be authorised by ACAT. The treating team, on behalf of the Chief Psychiatrist, must make the application to ACAT before the ED3 expires. The application will contain the reasons and evidence why the treating team believe that the person still meets the criteria in section 85(1)(a) described above. ACAT will consider the application based on the information on the form and almost always make a decision without holding a hearing (s 85(6)). The Public Advocate and other relevant people must also be informed if the detention is extended (s 89).

What can happen during emergency detention?

Comprehensive Assessment

In addition to the initial assessment the person received after arriving at the hospital, the person must also receive a comprehensive medical and psychiatric assessment (s 86). This should happen, as far as it is practical to do so, within 24 hours of of the person first being detained. The assessment must be conducted by a different doctor to the one who first initiated the detention.

However, if a comprehensive assessment was conducted when the person was first examined after being detained (under s84), then a consultant psychiatrist may agree that another examination is not necessary (s 86(4)).

If the results of the comprehensive assessment indicate that the person no longer meets the criteria for detention (set out in section 85(1)(a)), the person must be immediately released from detention (s 91).

Treatment, care and support

An ED3 or ED11 authorises the person to receive treatment, care and support for their mental illness or mental disorder. This treatment can be provided involuntarily, and with reasonable force and assistance, if this is the least restrictive way available (s 88(4)). However, given that the person is only detained for a short time with limited oversight by ACAT in order to address the immediate mental health emergency, the Act imposes limits on the kind of treatment that can be given at this time.

Section 88(1)(d) specifies that the treatment, care or support provided during an ED3 or ED11 can only be the minimum extent necessary to prevent any immediate and substantial risk of the person causing harm to themselves or someone else. In other words, the treatment provided at this time can only be to minimise immediate risk, rather than for longer-term improvement.

The person should therefore not be given long-acting medications, unless a psychiatrist on the treating team has assessed that this would be the most appropriate treatment for the person’s mental illness. The psychiatrist must take into account any likely deterioration in the person’s condition within 3 days of the assessment when making this decision (s 88(2) and (3)).

Detention

During an ED3 or ED11, the person is detained at the hospital. Just as during the period of initial detention, the person is not free to leave unless the ED3 or ED11 is revoked. Reasonable steps can be taken by hospital staff and security officers to ensure that the person remains at the hospital and does not cause harm to themselves or other people (s 88(1)). This may involve admitting the person to the Mental Health Short Stay Unit (MHSSU) attached to the Emergency Department, or to the Adult Mental Health Unit (AMHU).

In some cases, a person may be transferred to another approved mental health facility which is more appropriate to the person’s situation (including the public mental health facilities at Calvary Public Hospital Bruce). If the person has urgent medical issues which need attention, they may be detained and treated in another part of the Canberra Hospital (All of the Canberra Hospital, not just the Emergency Department and Adult Mental Health Unit, is declared as an approved mental health facility). Security officers and wardspeople may assist in keeping the person safely detained.

As a last resort and if it is the only way to prevent the person from causing harm to themselves or someone else, the person may be secluded. See the explanation of seclusion in the PTO section for more details.

Review and release

If the treating team believes that someone detained on an ED3 or ED11 no longer meets the criteria for detention (in section 85(1)(a)), they must release the person from detention as soon as possible (s 91). During the ED3 and ED11 period, the person will therefore be regularly assessed to see if the detention is allowed to continue. In most cases, once a person is responding to the treatment provided, the ED3 or ED11 can be revoked before it expires.

Once released from detention, the person is free to leave but may continue to receive treatment, care and support as a voluntary patient if this is appropriate and agreed by both the person and the treating team.

Application for a Mental Health Order

In some situations, the treating team will believe that the person needs to be detained to receive treatment for a longer period of time than permitted under the ED11. In this case, the treating team will make an application for a Mental Health Order before the expiry of the ED11. See the Mental Health Order section for how an application is made and how a Mental Health Order operates.

Review of emergency detention

A person who has been detained on an ED3 or ED11 has the right to apply to ACAT for a review of their detention (s 85(4), (5) and (6)).

An application is made by completing ACAT’s Application for Interim or Other Orders form and filing this with the ACAT registry. The person has a right to seek legal advice to help them to do this, including by contacting Legal Aid or the Public Advocate. The application should set out the reasons why the person is seeking a review of their detention, and is more likely to be successful if the person can provide evidence that the legal requirements for detention are not met. That is, if ACAT is persuaded that any of the following apply, they must order the release of the person from detention:

• The person does not require immediate treatment, care or support;
• The person is not refusing the treatment, care or support being offered;
• Detention is not necessary for the person’s own health or safety, for the person’s social or financial wellbeing, or for the protection of someone else or the public; or
• Adequate treatment, care or support can be provided in a less restrictive environment (these are the reverse of the s 85(1)(a) criteria).
  

ACAT is required to review the detention within 2 working days of receiving the application, and can do so without holding a hearing. ACAT may decide that the detention is appropriate and should continue as originally decided, or it may vary the length of the detention (e.g. shorten the maximum duration) or revoke the detention and order that the person be released.

Rights during emergency detention

In addition to the right to apply to ACAT for a review of the detention, a person who is detained under the emergency detention provisions has a number of other rights under the Act.

The person must be given reasonable opportunities to contact or be visited by their lawyer (or contact Legal Aid ACT for legal advice) or the Public Advocate (s 90). The person must also be given the opportunity and any help they need to notify a relative or friend about their detention (s 89(6)). The person also has a right to seek a second opinion about their assessment or treatment from an appropriate mental health professional (s 15(1)(b)(i)). The treating team must also ask the person whether they have a Nominated Person, Advance Agreement or an Advance Consent Direction (s 21 and s 25). If they do not, and have the decision-making capacity to do so, they must be given an opportunity to make these documents and appointments.

As soon as possible after the person arrives at the hospital, they must be told by the treating team about these rights. They must also be given an information sheet about their rights under the Act. This must be provided in a manner that the person is most likely to understand (s 15).