ACCREDITED PERSONSUNDER THE MENTAL HEALTH ACT 2007IN THE CONTEXT OF ADMINISTRATIVE DECISION-MAKING

Dr Ian Ellis-Jones PhD

Solicitor of the Supreme Court of New South Walesand the High Court of Australia

Former Senior Lecturer, Faculty of Law, University of Technology, SydneyLecturer, New South Wales Institute of Psychiatry

Consultant - Trainer - Facilitator - Wellness Instructor

ACCREDITED PERSONSUNDER THE MENTAL HEALTH ACT 2007

IN THE CONTEXT OF ADMINISTRATIVE DECISION-MAKING

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Accredited Persons• MENTAL HEALTH ACT 2007 (NSW) (cf 1990 Act, s 287A)

• 136. (1) The Director-General may appoint a person as an accredited person for the purposes of this Act.

• (2) The Director-General may appoint the holder of an office as an accredited person and may impose conditions on the exercise by a person or the holder of an office of the functions of an accredited person.

What is ‘Administrative Law’?

• A branch of ‘public law’ (cf ‘private law’)

• The body of law that regulates the exercise of power and the making of decisions by:– the executive branch of government, – the administrative arm of government, and– non-government bodies (‘domestic

tribunals’)

‘Administrative Law’

• ‘The words administrative law are unknown to the English judges and counsel, and are in themselves hardly intelligible without further explanation.’– A V Dicey, Introduction to

the Study of the Law of the Constitution (1885).

‘Administrative Law’

• ‘We do not have a developed system of administrative law perhaps because until fairly recently we did not need it.’– Lord Reid, in Ridge v Baldwin

[1964] AC 40.

‘Administrative Law’

• ‘It may truly now be said that we have a developed system of Administrative law.’ – Lord Denning MR, in Breen v

AEU [1971] 1 All ER 1148.

‘Administrative Law’

• Administrative Law:– is still a comparatively ‘young’ body of law,– lacks coherence, having many fragmented

components

• Administrative Law has been seen to be no more than ‘an ad hoc bunch of restraints, controls and procedures’ – Lord Scarman, ‘The Development of Administrative Law:

Obstacles and Opportunities’ [1990] Pub L 490 at 490.

What is ‘Administrative Law’?

• ADMINISTRATIVE LAW is ‘all’ about:– DECISIONS … and DECISIONS … and

DECISIONS!– DECISION MAKERS … of all different kinds– FACTS … occurrences in space and time– POWER … very much so!– FAIRNESS … and, sadly, UNFAIRNESS– RULES … naturally! ... lots of them!

What is ‘Administrative Law’?

• Judicial Review– can only be performed by a superior court– is concerned with the ‘lawfulness’ of a

decision

• ‘Lawfulness’ ordinarily involves BOTH– issues of ‘fairness’, and– issues of ‘power’ (or ‘jurisdiction’)

What is ‘the law’?

• The law is what the courts tell us it is.• A lawyer makes an informed

‘prediction’ as to what he or she thinks a court of competent jurisdiction would declare to be the law on the facts of the particular case.

• ‘The life of the law is experience, not logic’ (Holmes J).

Legal Reasoning

• INDUCTION– A rule, principle or doctrine is ‘arrived at’ (i.e.

extracted or formulated) from a number of particular instances or cases.

• DEDUCTION

– The rule, principle or doctrine is then ‘applied’ to the particular circumstances of the case at hand.

• LEGAL INTUITION

– ‘Situation-sense’.

Administrative Law

•Concept of Rational Humaneness

•Duty to act honestly and fairly

Administrative Law …Underlying Philosophical Ideas

THE CONCEPT OF “RATIONAL HUMANENESS”

‘Rational Humaneness’

• John Morley

• 1st Viscount Morley of Blackburn, OM, PC (1838-1923)

• British Liberal statesman, writer and newspaper editor.

THE NEED FORRATIONAL HUMANENESS

'A RATIONALITYTHAT IS INFORMED BY CONSIDERATION AND

COMPASSION FOR THE NEEDS AND DISTRESSES

OF HUMAN BEINGS'- Gordon Hawkins (1919-2004)

Criminologist, Academic and Philosopher.

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Underlying Philosophical Ideas

• The principle of ‘equal power’*• cf negotiation theory and practice

– an administrator has superior power over others

– the rules, principles and doctrines are designed to ensure, so far as possible, that an administrator acts as if there were a position of equal power

* See Peter G Woolcock, Secular Humanism: Ethics Without Religion (Adelaide SA: Humanist Society of South Australia, 1989).

Administrative Law

THE DUTYTO ACT

HONESTLY

DUTY TO ACT HONESTLY

THE WORD “HONESTY”

[Latin, ‘honestas’] MEANS ONENESSWITH THE TRUTH,

THE FACTS.

WHAT IS A FACT?

A FACT IS AN OCCURRENCE

IN SPACEAND TIME.

- John Anderson(1893-1962)

Challis Professor of PhilosophyUniversity of Sydney, 1927-58'Father of Australian Realism'

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Primary Facts andUltimate Questions of Facts

• PRIMARY FACTS

• ULTIMATE QUESTIONSOF FACT

Primary Facts andUltimate Questions of Facts …

An ultimatequestion of factoften involves

several questions (‘layers’) of

primary fact …22

Primary Facts andUltimate Questions of Facts

Whether a person is, for example, a “mentally ill

person” within the meaning of the Mental Health Act 2007 is the ultimate question of fact.

Primary Facts andUltimate Questions of Facts

That ultimate question of fact involves several

questions ofprimary fact …

Primary Facts andUltimate Questions of Facts

• Is the person suffering from ‘mental illness’?

• NOTE. That question itself involves several other questions of primary fact, e.g. …

Primary Facts andUltimate Questions of Facts

• Mental functioning seriously impaired?

• Delusions? • Hallucinations?• Serious disorder of thought form?• Severe disturbance of mood?• Sustained or repeated irrational

behaviour?

Primary Facts andUltimate Questions of Facts

• If so, owing to that illness, are there reasonable

grounds for believing that care, treatment or control of the person is necessary … ?

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Primary Facts andUltimate Questions of Facts

•Facts need to be adduced to establish

all of the above matters.

Primary Facts andUltimate Questions of Facts

•The adduced facts comprise what are known as the basicor primary facts.

Primary Facts andUltimate Questions of Facts

• They are the basic factsthat must be adduced

to establish theultimate

question of fact.

Matters of ‘fact’and matters of ‘opinion’

• In law, every ‘opinion’, to be ‘valid’, must be based upon,

and supported by, facts relevant to the particular

question or issue.

Matters of ‘fact’and matters of ‘opinion’

• Opinions can be said to be ‘true’ or ‘false’ when

attention is directed, not to the opinion itself, but to the thing that the opinion is of.

Matters of ‘fact’and matters of ‘opinion’

•The test of a ‘true’ opinion is to ‘see’

whether or not something is the case.

Matters of fact … and opinion

To find out whether a fact exists, you ‘look and see’, or observe … or examine.

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The Importance of Facts• Nothing is superior to facts!

• Despite the difficulties, always look for the “facticity” of things ... the “thing-in-itself”.

• Draw appropriate conclusions and inferences from facts.

• Document all findings of relevant fact.

THE FIRST AND MOST IMPORTANT QUESTION

DO I HAVE POWERTO ACT?

DUTIES AND DISCRETIONS

1. A MUST/MAY DO X.

2. A MUST/MAY DO X IF FACT Y EXISTS.

DUTIES AND DISCRETIONS

3. A MUST/MAY DO X IF A IS SATISFIED THAT FACT Y EXISTS.

4. A MUST/MAY DO X PROVIDED B CONSENTS.

DUTIES AND DISCRETIONS

5. A MUST/MAY DO X OR Y.

6. A MUST/MAY DO X BUT ONLY FOR PURPOSE Y.

DUTIES AND DISCRETIONS

7. A MUST/MAY DO X PROVIDED A FIRST DOES B.

Failure to Complywith Procedural Requirements

A MUST/MAY DO X PROVIDED A FIRST DOES B.

… BUT WHAT IF THAT DOESN’T

HAPPEN?

Failure to Complywith Procedural Requirements

The correct test is …

WAS IT A PURPOSE OF THE LEGISLATION THAT AN ACT DONE IN BREACH OF THE LEGISLATIVE PROVISION

SHOULD BE INVALID?See Project Blue Sky Inc v Australian Broadcasting

Authority (1998) 194 CLR 355

‘Abuse of Power’

Bad Faith/Improper Purpose

• A decision-maker must not exercise their powers in bad faith or for an improper purpose.

Irrelevant Considerations

• A decision-maker:–must not base a decision on

irrelevant or extraneous considerations, and

–must give due and proper consideration to all relevant considerations.

Irrelevant Considerations

• A decision-maker MUST take into account all relevant considerations that the decision-maker is bound, as opposed to entitled, to take into account.

Manifest Unreasonableness

• A decision-maker must not exercise its powers ‘unreasonably’ … in the sense that …

Manifest Unreasonableness

• … no reasonable decision-maker … acting within the ‘four corners of its jurisdiction’ … could ever have made the decision in question.

Lack of Proportionality

• A decision may be so lacking in reasonable

proportionality as “not to be a real exercise

of the power”.

Lack of Proportionality

• There must exist a reasonable relationship between the “end” and

the “means”of the power.

Uncertainty/Lack of Finality

•A decision must be:

–“certain”, and

–“final”.

Fettering Discretion

• A decision-maker must not fetter itself in advance as to how it will exercise its statutory discretion.

Fettering Discretion

• … ‘tying oneself in knots … fetters …’

Acting on a Policy

• A decision-maker:

–must examine in detail each matter before it on its merits, and …

Acting on a Policy–must not

automatically or inflexibly apply an overall policy without considering the particular circumstances of the matter.

Acting Under Dictation

• A decision-maker, entrusted with a statutory discretion:–must exercise that power

itself and independently, and –must not be dictated to by a

third party.

Dictation can occur even if the other

person:• does not intend to

dictate, or • has given no

direction that the decision maker must do X.

Acting Under Dictation

The Rules of Procedural Fairness

• Hearing rule - Audi alteram partem rule – Hear the other side

• Bias rule – Nemo judex rule– Nemo debet esse judex in propria sua causa

• (‘No one can be a judge in their own case’)

• ‘No evidence’ (or ‘probative evidence’) rule

– Decisions must be based upon logically probative material

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Kioa v West (1985) 159 CLR 550

• “The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect r ights, interests and legit imate expectations, subject only to the clear manifestation of a contrary statutory intention.” – Mason J.

‘Content’ of the Hearing Rule

• “The critical question in most cases is not whether the rules of procedural fairness apply, but what does the duty to act fairly require in the circumstances of the particular case?”– See Kioa v West (1985) per Mason J.

‘Content’ of the Hearing Rule

•The minimum content of the hearing rule is … THE GIVING OF NOTICE.

‘Content’ of the Hearing Rule

• The power to take a person to hospital against their will may

need to be exercised peremptorily in many cases, … without a “hearing” first being afforded the affected person.

‘Content’ of the Hearing Rule

• In many cases, the affected person simply will not be in a mental

state conduciveto being “heard”.

‘Content’ of the Hearing Rule

• HOWEVER,at the very minimum,

the person will need to be told, as clearly as possible,

and humanely, of ...

‘Content’ of the Hearing Rule

• the terms and effect of the decision, and

• its implications in practical terms.

‘Content’ of the Hearing Rule

•Each case will need to be

assessed on its own special facts.

The Bias Rule

• “It is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.” – R v Sussex Justices; Ex parte McCarthy

[1924] 1 KB 256 per Lord Hewart.

The Bias Rule

• The test for bias is whether the relevant circumstances are such as would give rise in the mind of a fair-minded and informed member of the public, to a reasonable apprehension or suspicion of a lack of impartiality on the part of the decision-maker.

– Webb v R (1994) 181 CLR 41.

The Bias Rule

• See, eg, numbered paragraph 7 in Part 1 of the Schedule 1 form/certificate:–re pecuniary interests in private

mental health facilities. • Further, in scheduling a person, you

must not be a “near relative” or the “primary carer” of the person.

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‘No evidence’ (‘probative evidence’) rule

R v Deputy Industrial Injuries Commissioner ex p Moore [1965] 1 QB 456 per Lord Diplock:

“The requirement that a person exercising quasi-judicial functions must base his decisions on evidence means no more than it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, … (cont’d)

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‘No evidence’ (‘probative evidence’) rule

… or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin, or consult an astrologer, but he may take into account any material which, as a matter of reason, has probative value, in the sense mentioned above.” - R v Deputy Industrial Injuries Commissioner ex p Moore [1965] 1 QB 456 per Lord Diplock.

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‘No evidence’ (‘probative evidence’) rule

‘… [one] must not spin a coin, or consult an astrologer …’

- R v Dep Industrial Injuries Comsr ex p Moore [1965] 1 QB 456 per Lord Diplock.

APPOINTMENTOF ACCREDITED PERSONS

• MENTAL HEALTH ACT 2007 (NSW)• SECTION 136 - Accredited persons • (cf 1990 Act, s 287A)

• (1) The Director-General may appoint a person as an accredited person for the purposes of this Act.

• (2) The Director-General may appoint the holder of an office as an accredited person and may impose conditions on the exercise by a person or the holder of an office of the functions of an accredited person.

CRITERIA FOR INVOLUNTARY ADMISSION, ETC

• SECTION 13 - Criteria for involuntary admission etc as mentally ill person or mentally disordered person

• (cf 1990 Act, s 8) A person is a mentally ill person or a mentally disordered person for the purpose of:

• (a) the involuntary admission of the person to a mental health facility or the detention of the person in a facility under this Act, or

• (b) determining whether the person should be subject to a community treatment order or be detained or continue to be detained involuntarily in a mental health facility,

• if, and only if, the person satisfies the relevant criteria set out in this Part [viz Part 1 of Chapter 3 of the Act].

“MENTALLY ILL PERSON”

• SECTION 14 - Mentally ill persons • (cf 1990 Act, s 9) • (1) A person is a mentally ill person if the person is

suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary:

• (a) for the person’s own protection from serious harm, or

• (b) for the protection of others from serious harm. • (2) In considering whether a person is a

mentally ill person, the continuing condition of the person, including any likely deterioration in the person’s condition and the likely effects of any such deterioration, are to be taken into account.

NON-INDICATIVE MATTERS• SECTION 16 - Certain words or conduct may not indicate

mental illness or disorder • (cf 1990 Act, s 11) • (1) A person is not a mentally ill person or a mentally disordered person

merely because of any one or more of the following: • (a) the person expresses or refuses or fails to express or has expressed or

refused or failed to express a particular political opinion or belief, • (b) the person expresses or refuses or fails to express or has expressed or

refused or failed to express a particular religious opinion or belief, • (c) the person expresses or refuses or fails to express or has expressed or

refused or failed to express a particular philosophy, • (d) the person expresses or refuses or fails to express or has expressed or

refused or failed to express a particular sexual preference or sexual orientation,

• (e) the person engages in or refuses or fails to engage in, or has engaged in or refused or failed to engage in, a particular political activity,

• … (cont’d)

NON-INDICATIVE MATTERS(cont’d)

• (f) the person engages in or refuses or fails to engage in, or has engaged in or refused or failed to engage in, a particular religious activity,

• (g) the person engages in or has engaged in a particular sexual activity or sexual promiscuity,

• (h) the person engages in or has engaged in immoral conduct, • (i) the person engages in or has engaged in illegal conduct, • (j) the person has developmental disability of mind, • (k) the person takes or has taken alcohol or any other drug, • (l) the person engages in or has engaged in anti-social behaviour, • (m) the person has a particular economic or social status or is a member of

a particular cultural or racial group.

• (2) Nothing in this Part prevents, in relation to a person who takes or has taken alcohol or any other drug, the serious or permanent physiological, biochemical or psychological effects of drug taking from being regarded as an indication that a person is suffering from mental illness or other condition of disability of mind.

“MENTAL ILLNESS”

• mental illness means a condition which seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms:

• (a) delusions,• (b) hallucinations,• (c) serious disorder of thought form,• (d) a severe disturbance of mood,• (e) sustained or repeated irrational behaviour

indicating the presence of any one or more of the symptoms referred to in paragraphs (a)-(d). [See s.4(1).]

“MENTAL ILLNESS”

• Delusion:

–a false and fixed personal belief • based on incorrect inference about external reality

• held and firmly sustained in the face of incontrovertible and obvious proof or evidence to the contrary

“MENTAL ILLNESS”

• Delusion:– … ‘the absolute adherence of a person

to a fixed irrational belief … not held by persons of the same racial, cultural or educational background … unshakeable by reasoning’ • NSW Minister for Health, NSW

Legislative Assembly, 22 March 1990 (on the Mental Health Bill 1990).

“MENTAL ILLNESS”

• Hallucination:

–Latin word that is the root of ‘hallucination’ ...•‘to wander in thought’ or ‘to utter nonsense’ ...

“MENTAL ILLNESS”• Hallucination:

• false sensory perception ... perceptions in any of the senses in the absence of, and not caused by, an external real stimulus ...– perceived as ..

» being located in objective space» having realistic qualities as normal

perceptions ... (cont’d)

“MENTAL ILLNESS”

• Hallucination:• not subject to conscious

manipulation• indicative of a psychotic

disturbance when there is also impaired reality testing

“MENTAL ILLNESS”

• Hallucination:

… ‘subjective experiences that are consequences of mental processes, sometimes fulfilling a purpose in the individual’s mental life’

- W. Keup, Origin and Mechanisms of Hallucinations, 1970, page v.

“MENTAL ILLNESS”

• Serious disorder of thought form:– ‘loss of coherence with the person

becoming incapable of communicating sensibly by following one idea logically with another’

• NSW Minister for Health, NSW Legislative Assembly, 22 March 1990 (on the Mental Health Bill 1990).

“MENTAL ILLNESS”

• Severe disturbance of mood:– ‘prolonged emotional state that is

inappropriate given the circumstances of the person, and that is non-responsive to any event that would normally be expected to vary it’

• NSW Minister for Health, NSW Legislative Assembly, 22 March 1990 (on the Mental Health Bill 1990).

“MENTAL ILLNESS”• Sustained or repeated irrational behaviour:

–not so much contrary to reason or logic per se ... cf. ‘irrationality’ in law

–the presence of the other symptoms (eg delusions, hallucinations, etc) may be inferred from the behaviour ...

“MENTAL ILLNESS”• Sustained or repeated irrational

behaviour:– overreliance on the affective or intuitive

domains• with, eg, agitation, psychomotor

retardation, catatonia, profound indecision • with the result and to an extent that the

person is unable to pursue their usual life rationally (Dr Martyn Patfield, Psychiatrist)

“MENTALLY DISORDERED PERSON”

• SECTION 15 - Mentally disordered persons • (cf 1990 Act, s 10)

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

• (a) for the person’s own protection from serious physical harm, or

• (b) for the protection of others from serious physical harm.

NON-INDICATIVE MATTERS• SECTION 16 - Certain words or conduct may not indicate

mental illness or disorder • (cf 1990 Act, s 11) • (1) A person is not a mentally ill person or a mentally disordered person

merely because of any one or more of the following: • (a) the person expresses or refuses or fails to express or has expressed or

refused or failed to express a particular political opinion or belief, • (b) the person expresses or refuses or fails to express or has expressed or

refused or failed to express a particular religious opinion or belief, • (c) the person expresses or refuses or fails to express or has expressed or

refused or failed to express a particular philosophy, • (d) the person expresses or refuses or fails to express or has expressed or

refused or failed to express a particular sexual preference or sexual orientation,

• (e) the person engages in or refuses or fails to engage in, or has engaged in or refused or failed to engage in, a particular political activity,

• … (cont’d)

NON-INDICATIVE MATTERS(cont’d)

• (f) the person engages in or refuses or fails to engage in, or has engaged in or refused or failed to engage in, a particular religious activity,

• (g) the person engages in or has engaged in a particular sexual activity or sexual promiscuity,

• (h) the person engages in or has engaged in immoral conduct, • (i) the person engages in or has engaged in illegal conduct, • (j) the person has developmental disability of mind, • (k) the person takes or has taken alcohol or any other drug, • (l) the person engages in or has engaged in anti-social behaviour, • (m) the person has a particular economic or social status or is a member of

a particular cultural or racial group.

• (2) Nothing in this Part prevents, in relation to a person who takes or has taken alcohol or any other drug, the serious or permanent physiological, biochemical or psychological effects of drug taking from being regarded as an indication that a person is suffering from mental illness or other condition of disability of mind.

“SCHEDULING”• SECTION 19 - Detention on certificate of medical practitioner or

accredited person • (cf 1990 Act, s 21) • (1) A person may be taken to and detained in a

declared mental health facility on the basis of a certificate about the person’s condition issued by a medical practitioner or accredited person. The certificate is to be in the form set out in Part 1 of Schedule 1.

• (2) A mental health certificate may be given about a person only if the medical practitioner or accredited person:

• (a) has personally examined or observed the person’s condition immediately before or shortly before completing the certificate, and

• (b) is of the opinion that the person is a mentally ill person or a mentally disordered person, and

• (c) is satisfied that no other appropriate means for dealing with the person is reasonably available, and that involuntary admission and detention are necessary, and

• (d) is not the primary carer or a near relative of the person. • …(cont’d)

“SCHEDULING” (cont’d)

• [SECTION 19]• …• (3) A mental health certificate may contain a police assistance endorsement

that police assistance is required if the person giving the certificate is of the opinion that there are serious concerns relating to the safety of the person or other persons if the person is taken to a mental health facility without the assistance of a police officer. The endorsement is to be in the form set out in Part 2 of Schedule 1.

• (4) A mental health certificate may not be used to admit or detain a person in a facility:

• (a) in the case of a person certified to be a mentally ill person, more than 5 days after it is given, or

• (b) in the case of a person certified to be a mentally disordered person, more than one day after it is given.

• (5) In this section: "near relative" of a person means a parent, brother, sister, child or spouse of the person and any other person prescribed for the purposes of this definition.

“SCHEDULING” (cont’d)• 18. When a person may be detained in

mental health facility

• …

• (2) A person may be detained, under a provision of this Part, in a health facility that is not a declared mental health facility if it is necessary to do so to provide medical treatment or care to the person for a condition or illness other than a mental illness or other mental condition.

• (3) In this Act, a reference to taking to and detaining in a mental health facility includes, in relation to a person who is at a mental health facility, but not detained in the mental health facility in accordance with this Act, the detaining of the person in the mental health facility.

“SCHEDULING” (cont’d)

PERSONAL EXAMINATION OR OBSERVATION

• The examination or observation must in either case be a personal one.

• Actual physical presence is not necessarily required.

“SCHEDULING” (cont’d)

PERSONAL EXAMINATION OR OBSERVATION

There must still be a direct (but not necessarily ‘visible’) and intentional

–awareness [‘examination’] or

–scrutiny [‘observation’] of the client and their behaviour.

“SCHEDULING” (cont’d)

PERSONAL EXAMINATION OR OBSERVATION

The awareness (e.g. from outside a closed door) or

scrutiny (e.g. by means of a video conference facility)

must be that of theaccredited person.

“SCHEDULING” (cont’d)

PERSONAL EXAMINATIONOR OBSERVATION

Any observation falling short of an actual direct examination

e.g. listening to the behaviour of someone from outside a closed

door ...

should be clear and unambiguous.

“SCHEDULING” (cont’d)

PERSONAL EXAMINATION OR OBSERVATION

A telephone call, without more by way of awareness or scrutiny, is generally regarded as being legally insufficient …

“SCHEDULING” (cont’d)

PERSONAL EXAMINATION OR OBSERVATION

Why?

Because there is ...no ‘actual unequivocal’

examination or observation in mere telephone contact.

“SCHEDULING” (cont’d)

PERSONAL EXAMINATION OR OBSERVATION

Account may be taken of other corroborative matters,

not ascertained as a consequence of personally

examining or observingthe person ...

“SCHEDULING” (cont’d)

PERSONAL EXAMINATION OR OBSERVATION

... where, for example, those matters: • arise from a previous personal

examination of the person or• are communicated by a

reasonably credible informant.

“SCHEDULING” (cont’d)PERSONAL EXAMINATION OR OBSERVATION

However, such matters are, at best, corroborative only, and

are not, in themselves, legally sufficient to constitute a “personal examination

or observation”.

POLICE ASSISTANCE• SECTION 21 - Police assistance • (1) A police officer to whose notice a police assistance endorsement

on a mental health certificate, or a request for assistance by an ambulance officer under this Division, is brought must, if practicable:

• (a) apprehend and take or assist in taking the person the subject of the certificate or request to a declared mental health facility, or

• (b) cause or make arrangements for some other police officer to do so.

• (2) A police officer may enter premises to apprehend a person under this section, and may apprehend any such person, without a warrant and may exercise any powers conferred by section 81 on a person who is authorised under that section to take a person to a mental health facility or another health facility.

• Note: Section 81 sets out the persons who may take a person to a mental health facility and their powers when doing so.

ORDER FOR MEDICAL EXAMINATIONOR OBSERVATION

• SECTION 23 - Detention after order for medical examination or observation

• (cf 1990 Act, s 27) • (1) A Magistrate or authorised officer may, by order, authorise a medical

practitioner or accredited person to visit and to personally examine or personally observe a person to ascertain whether a mental health certificate should be issued for the person.

• (2) An order may be made if the Magistrate or officer is satisfied, by evidence on oath, that:

• (a) the person may be a mentally ill person or a mentally disordered person, and

• (b) because of physical inaccessibility, the person could not otherwise be personally examined or personally observed.

• (3) The order may also authorise any other person (including a police officer) who may be required to assist the medical practitioner or accredited person to accompany the medical practitioner or accredited person. … (cont’d)

ORDER FOR MEDICAL EXAMINATIONOR OBSERVATION (cont’d)

• [SECTION 23]• …• (4) A person authorised to visit a person or accompany

another person may enter premises, if need be by force, in order to enable the examination or observation to be carried out.

• (5) A person who is examined or observed under this section may be detained in accordance with section 19.

• (6) A person who takes action under an order must, as soon as practicable after taking the action, notify the person who made the order in writing of the action.

• (7) In this section: "authorised officer" means an authorised officer within the meaning of the Criminal Procedure Act 1986 .

Protection Against Personal Liability

• MENTAL HEALTH ACT 2007(cf 1990 Act, s 294)

• 191. (1) Any police officer, health care professional or ambulance officer who, in good faith, exercises a function that is conferred or imposed on that person by or under this Act or the Mental Health (Forensic Provisions) Act 1990 is not personally liable for any injury or damage caused by the exercise of that function.

…

Protection Against Liability

• CIVIL LIABILITY ACT 2002 (NSW)• 43A. Proceedings against public or other authorities for

the exercise of special statutory powers

• (1) This section applies to proceedings for civil liability to which this Part applies to the extent that the liability is based on a public or other authority’s exercise of, or failure to exercise, a special statutory power conferred on the authority.

• (2) A "special statutory power" is a power: (a) that is conferred by or under a statute, and (b) that is of a kind that persons generally are not authorised to exercise without specific statutory authority.

… (cont’d)

Protection Against Liability

• (3) For the purposes of any such proceedings, any act or omission involving an exercise of, or failure to exercise, a special statutory power does not give rise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power.

• (4) In the case of a special statutory power of a public or other authority to prohibit or regulate an activity, this section applies in addition to section 44.

Protection Against Liability• CIVIL LIABILITY ACT 2002 (NSW)• 44. When public or other authority not liable for failure to

exercise regulatory functions • (1) A public or other authority is not liable in proceedings for civil

liability to which this Part applies to the extent that the liability is based on the failure of the authority to exercise or to consider exercising any function of the authority to prohibit or regulate an activity if the authority could not have been required to exercise the function in proceedings instituted by the plaintiff.

• (2) Without limiting what constitutes a function to regulate an activity for the purposes of this section, a function to issue a licence, permit or other authority in respect of an activity, or to register or otherwise authorise a person in connection with an activity, constitutes a function to regulate the activity.