Better Practice Guide Template

Functional Governance

Better Practice Guide

Persons suffering from mental illness or mental disorder (ACT Policing)

Date of initial endorsement: 11 January 2018

Date of last review: 11 January 2018

Endorsed by: Deputy Chief Police Officer - Response

Owner: Mental Health Community Policing Initiative – Police Operations

Contact: Sgt Craig McPherson – Mental Health Community Policing Initiative

Identifier: DCPOR012

IPS Status Full

Disclosure and classification

This document is classified UNCLASSIFIED and is intended for internal AFP use. Disclosing any content must

comply with Commonwealth law and the AFP National Guideline on information management

Compliance

This instrument is part of the AFP's professional standards framework. The AFP Commissioner’s Order on

Professional Standards (CO2) outlines the expectations for appointees to adhere to the requirements of the

framework. Inappropriate departures from the provisions of this instrument may constitute a breach of AFP

professional standards and be dealt with under Part V of the

Australian Federal Police Act 1979 (Cth).

This document is a functional governance instrument as defined under s.4 of the AFP Commissioner's Order on

Governance (CO1).

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ble of Contents:

1. Definitions ................................................................................................................................................... 3

2. Privacy and consent ..................................................................................................................................... 4

3. Types of Mental Health Orders ................................................................................................................... 5

3.1 Psychiatric Treatment Order ...................................................................................................................... 5

3.2 Community Care Order .............................................................................................................................. 6

3.3 Restriction Order ........................................................................................................................................ 6

3.4 Interstate Treatment Order ....................................................................................................................... 6

3.5 Referral to ACAT for a mental health order ............................................................................................... 7

4. Contravention of Mental Health Orders ..................................................................................................... 7

5. Detention and release of defendants subject to a mental health assessment order ................................. 7

6. Custody of defendants subject to a mental health assessment order ........................................................ 8

7A. Apprehension – Emergency detention by police and paramedics .......................................................... 8

7B. Apprehension – Emergency detention by doctors and mental health officers ...................................... 9

8. Statement of Apprehension ...................................................................................................................... 10

9. Hand-over – Emergency detention ........................................................................................................... 11

9.1 Hand-over – Timeliness benchmark......................................................................................................... 11

9.2 Hand-over – Initiating a Grey Response .................................................................................................. 11

10A. Apprehension – Escapee from a secure mental health facility (Dhulwa) ............................................. 12

10B. Statement required - Apprehension of escapee from a secure mental health facility (Dhulwa) ......... 12

11A. Power to enter in order to apprehend a person ................................................................................... 12

11B. Power to search and seize items from an apprehended persons ......................................................... 13

12. Protection against liability ..................................................................................................................... 14

13. Criminality.............................................................................................................................................. 14

14. Custody .................................................................................................................................................. 15

15. Notifications .......................................................................................................................................... 15

15.

1 Children .................................................................................................................................................. 15

15.2 Adults ..................................................................................................................................................... 15

16. Firearms and accoutrements – Carriage into facilities .......................................................................... 15

17. References: ............................................................................................................................................ 16

17.1 Legislation .............................................................................................................................................. 16

17.2 AFP Governance ..................................................................................................................................... 16

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17.3 Other sources ......................................................................................................................................... 16

Annexure - Frequently Asked Questions ........................................................................................................... 16

1. Definitions

Appr

oved health facility means a health facility approved by the Minister under paragraph 261(1) of

the Mental Health Act 2015

- presently the Adult Mental Health Unit (AMHU)

at the Canberra Hospital.

Gazetted mental health

facility

means a mental health facility approved by the Minister under paragraph

261(1); of the Mental Health Act 2015

and that has been gazetted in the

Crimes Act 1900.

Care coordinator means a public servant into whose care a person subject to a community care

order is placed, under paragraph 204(1); of the Mental Health Act 2015

Chief psychiatrist means the Chief Psychiatrist appointed under section 196 of the Mental

Health Act 2015. The role of the Chief Psychiatrist clearly distinguishes the

clinical duties of the position from the administrative office of the Director

General of ACT Mental Health Services.

Mental disorder as defined by s.9 of the Mental Health Act 2015

a. means a disturbance or defect, to a substantially disabling degree, of

perceptual interpretation, comprehension, reasoning, learning,

judgment, memory, motivation or emotion; but

b. does not include a condition that is a mental illness.

Mental illness as defined by s.10 of the Mental Health Act 2015

means a condition that seriously impairs (either temporarily or permanently)

the mental functioning of a person in 1 or more areas of thought, mood,

volition, perception, orientation or memory, and is characterised by—

a. the presence of at least 1 of the following symptoms:

(i) delusions;

(ii) hallucinations;

(iii) serious disorders of streams of thought;

(iv) serious disorders of thought form;

(v) serious disturbance of mood; or

b. sustained or repeated irrational behaviour that may be taken to

indicate the presence of at least 1 of the symptoms mentioned in

paragraph (a).

Memorandum of

Understanding (MOU)

Memorandum of Understanding Between the ACT Ambulance Service, the

Australian Federal Police, the Canberra Hospital, Calvary Health Care ACT,

Mental Health, Justice Health and Alcohol & Drug Services for People

Requiring Mental Health Care

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Safe Assessment Pod (SAP) means a short stay observation suite with ACT Mental Health staff providing

a 24 hour ‘in reach service’ in the Emergency Department of the Canberra

Hospital.

The

Clinical and operational governance of the unit falls to the Emergency

Department. Following an assessment, a consumer may undergo a period of

observation and further assessment, be referred to the community for

appropriate follow-up or be admitted to an inpatient unit.

fer to the MOU for escalation protocols.

Secure mental health

facility

means a health facility approved by the Minister under paragraph 261(1) of

the Mental Health Act 2015

- presently the Forensic Mental Health Unit at

Hume (Dhulwa).

Referring officer in relation to a person, means

a. the police officer -

(i) who arrests the person in connection with an offence;

(ii) who is satisfied that there are sufficient grounds on which to

charge the person in connection with an offence; or

(iii) who charges the person in connection with an offence;

b. a member of the staff of the director of public prosecutions who is

responsible for the prosecution of an offence against the person; or

c. if the person is required to accept supervision by someone else as a

condition of bail under the Bail Act 1992

—that other person.

Responsible person means —

a. a parent of the child or young person; or

b. if no parent of the child or young person has parental responsibility for

the child or young person—someone else who has daily care

responsibility, or long-term care responsibility, for the child or young

person.

2. Privacy and consent

The handling and exchange of personal information is regulated by privacy legislation at the federal, state and

territory level. The principal piece of federal legislation regulating privacy in Australia is the

Privacy Act 1988

(Cth) which applies to Australian and ACT Government agencies and private sector organisations. The Act

contains a set of 11 Information Privacy Principles (IPPs) that apply to government agencies.

Of particular relevance to this Better Practice Guide are IPPs 10 and 11, which impose limits on the manner in

which Australian Government agencies use and disclose personal information. IPP 10 provides that a ‘record-

keeper’ in an Australian Government agency that has possession or control of personal information shall not

use the information for any other purpose unless:

(a) The individual concerned has consented to use of the information for that other purpose, or

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(b) the record-keeper believes on reasonable grounds that use of the information for that other purpose

is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual

concerned or another person.

• Note: If consent for information exchange is not able to be obtained from the consumer then any exchange of

information between parties must meet the threshold as described in 2.b. Any written documentation

released without consent must be with the written approval of the Mental Health, Justice Health, Alcohol and

Drug Service (MHJHADS) Executive Officer.

3. Types of Mental Health Orders

There are two types of orders in the Mental Health Act 2015:

1. Psychiatric Treatment Order (s.58)

2. Community Care Order (s.66)

3.1 Psychiatric Treatment Order

The ACT Civil and Administrative Tribunal (ACAT) may make an involuntary Psychiatric Treatment Order (PTO)

in respect of a person if-

(a) the person has a mental illness; and

(b) either—

(i) the person does not have decision-making capacity to consent to the treatment, care or

support and refuses to receive the treatment; or

(ii) the person has decision-making capacity to consent to the treatment, care or support, but

refuses to consent; and

(i) is doing, or is likely to do, serious harm to themself or someone else; or

(ii) is suffering, or is likely to suffer, serious mental or physical deterioration; and

(d) in relation to a person mentioned in paragraph (b) (ii)—the ACAT is satisfied that the harm or

deterioration, or likely harm or deterioration, mentioned in paragraph (c) is of such a serious nature

that it outweighs the person’s right to refuse to consent; and

(e) the ACAT is satisfied that psychiatric treatment, care or support is likely to—

(i) reduce the harm or deterioration, or the likelihood of the harm or deterioration, mentioned in

paragraph (c); or

(ii) result in an improvement in the person’s psychiatric condition; and

(f) if an application has been made for a forensic mental health order—the ACAT is satisfied that a

psychiatric treatment order should be made instead; and

(g) the ACAT is satisfied that the treatment, care or support to be provided under the psychiatric

treatment order cannot be adequately provided in another way that would involve less restriction of

the freedom of choice and movement of the person.

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3.2 Community Care Order

The Tribunal may make a Community Care Order (CCO) in respect of a person if-

(a) the person has a mental disorder; and

(b) either—

(i) the person does not have decision-making capacity to consent to the treatment, care or

support and refuses to receive the treatment, care or support; or

(ii) the person has decision-making capacity to consent to the treatment, care or support, but

refuses to consent; and

(i) is doing, or is likely to do, serious harm to themself or someone else; or

(ii) is suffering, or is likely to suffer, serious mental or physical deterioration; and

(d) in relation to a person mentioned in paragraph (b) (ii)—the ACAT is satisfied that the harm or

deterioration, or likely harm or deterioration, mentioned in paragraph (c) is of such a serious nature

that it outweighs the person’s right to refuse to consent; and

(e) the ACAT is satisfied that treatment, care or support is likely to reduce the harm or deterioration, or

likelihood of harm or deterioration, mentioned in paragraph (c); and

(f) the ACAT is satisfied that, in the circumstances, a psychiatric treatment order should not be made;

and

(g) if an application has been made for a forensic mental health order—the ACAT is satisfied that a

community care order should be made instead; and

(h) the ACAT is satisfied that the treatment, care or support to be provided under the community care

order cannot be adequately provided in another way that would involve less restriction of the

freedom of choice and movement of the person.

3.3 Restriction Order

A 'Restriction Order' may be made by the ACAT in addition to a psychiatric treatment order (s.60) or

community care order s.66(2) if the ACAT is satisfied that it is in the interests of the person’s health or safety

or public safety to do so. A Restriction Order is similar in essence to Restraining Orders issued by the Court;

they contain certain conditions that must not be breached.

A breach of a Restriction Order under this act does not require police to detain or apprehend the person

named in that order. Police must notify the Crisis Assessment and Treatment Team (CATT) of the alleged

breach as soon as possible after its occurrence. Unless the person named in the order requires emergency

detention, there is no provision to further detain the person. Further inquiry needs be made to determine if

a breach of the Restriction Order also breaches the accompanying Psychiatric Treatment Order or Community

Care Order.

3.4 Interstate Treatment Order

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For persons subject to a Treatment Order issued interstate, inquiries are to be made with Mental Health

Triage (CATT) to determine if ACT Mental Health has an agreement with the relevant state or territory

regarding apprehension should a breach of the interstate Treatment Order be disclosed.

3.5 Referral to ACAT for a mental health order

A Referring Officer (includes a police officer) may refer a defendant to the Tribunal for a mental health order if

the grounds under s.51 of the Mental Health Act 2015

are met.

A referral shall be in the form of a statutory declaration that details the reasons as to why the responsible

officer holds the belief referred to in s.51 of the Mental Health Act 2015

If the referring officer believes that the appearance of the alleged offender before the Tribunal is likely to

increase the risk to the alleged offender's health or safety; or increase the risk of serious harm to others, the

referring officer shall also set out those grounds in the statutory declaration.

4. Contravention of Mental Health Orders

Before a person on a Psychiatric Treatment Order can be placed in breach of that order, they are required to

be given an oral warning. If the oral warning is not complied with, the person is required to be issued with a

warning in writing. If the person fails to adhere to the order after these two warning steps are undertaken,

the Chief Psychiatrist or Care Coordinator may apprehend and detain the person within a mental health facility

in accordance with s.77(3)of the Mental Health Act 2015

Note: Authorisation paper work stating that the necessary cautions have been issued and the person is in

breach of a Psychiatric Treatment Order, is to be completed by Mental Health Services. A copy of the

authorisation is to be provided to the police officers who are to apprehend the person in contravention of the

order.

If the Chief Psychiatrist (or their delegate under the Act) or Care Coordinator authorises the detention of a

person under s.77(3) of the Mental Health Act 2015

, a police officer, authorised ambulance paramedic,

mental health officer or doctor may apprehend the person and take that person to an approved health facility

or approved community care facility in the ACT and s.263(2) of the

Mental Health Act 2015 states a police

officer, authorised ambulance paramedic, mental health officer or doctor:

(a) may, with necessary and reasonable assistance and minimum force, enter any premises to

apprehend, remove or take the person to a place; and apprehend the person and take the person to

the facility; and

(b) may use necessary and reasonable assistance to enter premises and apprehend the person.

5. Detention and release of defendants subject to a mental health assessment

order

The Magistrates/Supreme Court can order that a person appearing before the court in answer to a charge

(defendant) can be detained and taken to an approved mental health facility (AMHU) under s.309 of the

Crimes Act 1900

for the purpose of a mental health assessment. A defendant subject to a s.309 order can

subsequently be retained by the facility for care and treatment pursuant to the Mental Health Act 2015.

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At the completion of an assessment and any subsequent care and treatment, a defendant detained under

s.309 of the Crimes Act 1900

is typically required to be brought back before the Court in response to the

original charge that saw them placed before the Court – refer Part 6 of this Guide for conveyance protocols.

A defendant can only be released into police custody from an approved health facility (AMHU) in accordance

with the order of the Court because police will then be able to give effect to the Court's order that:

• the defendant be admitted to bail by an authorised officer, for the purpose of the Bail Act 1992

, or

• the defendant be taken back before the court as soon as is practicable, or

• the defendant be dealt with by an authorised officer in accordance with the Bail Act 1992

Prior to being returned to the Court, the mental health facility (AMHU) should notify the ACT Watch House of

their intention to return a defendant subject to a s.309 order. This practice ensures the Watch House is

informed of the person’s release prior to transfer into police custody.

6. Custody of defendants subject to a mental health assessment order

Subject to an order made by the Court pursuant to s.309(1) of the Crimes Act 1900, ACT Corrections will

typically transfer of a defendant from the Court to the approved mental health facility (AMHU) however police

may also be tasked to do so from time to time.

There will be a requirement for police officers or custodial escorts who convey defendants to an approved

mental health facility (AMHU) for examination pursuant to an order of the Magistrates/Supreme Court under

s.309(1)(a) of the Crimes Act 1900

to provide a copy of the order to the person in charge of the facility.

Where a doctor at an approved health facility discovers on examination that the defendant does not require

involuntary detention at the approved mental health facility, or the defendant has received adequate

treatment and care after having been detained at the facility for a period, he/she is to notify ACT Policing

Operations of the requirement for police to attend and transport the defendant.

Release of a defendant into police custody where they are required to appear before the Court should not

occur outside of the Court’ sitting hours to ensure the defendant is not being held in the Watch House longer

than is necessary to process their appearance.

Police officers tasked with returning a defendant to the Court will be provided (by the facility) with a copy of

the s.309 Court order and a number of other health related documents prior to taking the defendant into

custody. These documents are not intended for consumption by police except for a form used to transfer

custody and provide advice concerning risk to and welfare of the defendant.

Once placed into the custody of police, the defendant will be conveyed to the Watch House and the Watch

House notified of the impending arrival.

7A. Apprehension – Emergency detention by police and paramedics

Section 80(1) Mental Health Act 2015

A police officer or authorised ambulance paramedic* may apprehend a person and take the person to an

approved mental health facility if the police officer or paramedic believes on reasonable grounds that—

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(a) the person has a mental disorder or mental illness; and

(b) the person has attempted or is likely to attempt—

(i) suicide; or

(ii) to inflict serious harm on themself or another person.

Note: It is recommended that Police consult with a mental health clinician (either via ACT Police Operations or

ACT Mental Health Triage) regarding a consumer’s behaviour and suggested course of action before executing

an emergency detention under s.80(1) of the Mental Health Act 2015 in order to make a clinically informed

decision regarding care and treatment options for a person.

* All ACTAS paramedics are ‘authorised ambulance paramedics’.

Note: All persons apprehended under s.80(1) of the Mental Health Act 2015 must be transported to and

lodged with the Emergency Department at the Canberra Hospital. Alternative mental health facilities cannot

be used notwithstanding a desire on the part of the apprehended person to be lodged elsewhere.

Note: In order to maintain the respect and dignity of a person who has either a mental illness or mental

disorder, transportation of the defendant by a caged police vehicle should be avoided where possible, unless

there is a significant risk of injury to either the person suffering a mental illness or mental disorder, or any

other person.

7B. Apprehension – Emergency detention by doctors and mental health officers

Doctors and Mental Health Officers have wider provisions for apprehension than police and paramedics under

s.80(2) of the Mental Health Act 2015

(2) A doctor or mental health officer may apprehend a person and take the person to an approved

mental health facility if the doctor or mental health officer believes on reasonable grounds that—

(a) the person has a mental disorder or mental illness; and

(b) either—

(i) the person requires immediate treatment, care or support; or

(ii) the person’s condition will deteriorate within 3 days to such an extent that the person would

require immediate treatment, care or support; and

(d) detention is necessary for the person’s health or safety, social or financial wellbeing, or for the

protection of someone else or the public; and

(e) adequate treatment, care or support cannot be provided in a less restrictive environment.

The Doctor or Mental Health Officer may apprehend the person and take him or her to an approved health

care facility.

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8. Statement of Apprehension

A person including a police officer who detains a person pursuant to s.80(1) of the Mental Health Act 2015 is

required by s.83 of the Act to complete a Statement of action taken:

Section 83 Mental Health Act 2015

(1) A police officer, authorised ambulance paramedic, doctor or mental health officer who takes a person

to an approved mental health facility under section 80 must give the person in charge of the facility a

written statement containing a description of the action taken under that section, including the

following:

(a) the name and address (if known) of the person taken to the facility;

(b) the date and time when the person was taken to the facility;

(d) the nature and extent of the force or assistance used to enter any premises, or to apprehend

the person and take the person to the facility;

(e) the nature and extent of any restraint, involuntary seclusion or forcible giving of medication

used when apprehending the person or taking the person to the facility;

(f) anything else that happened when the person was being apprehended and taken to the facility

that may have an effect on the person’s physical or mental health.

Examples—par (f)

1. the person was subject to threats of violence from another person

2. a package of white powder fell out of the person’s pocket

3. the person was in an agitated state and hit their head against the side of the transport vehicle

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the

meaning of the provision in which it appears (see Legislation Act 2001, s126 and s132).

(2) The person in charge of the approved mental health facility must—

(a) enter the statement in the person’s record; and

(b) keep a register of any restraint, involuntary seclusion or forcible giving of medication included

in the statement.

A form containing the Statement of action taken per s.83(1) of the Mental Health Act 2015

is kept at the

Canberra Hospital’s Emergency Department for completion by police or authorised ambulance paramedics

whom apprehend a person per s.80(1) of the

Mental Health Act 2015. A carbon copy will be provided to police

in order to upload a scanned image into PROMIS.

Note: Advice from the ACT Government Solicitor revokes the long-established practice of mental health

clinicians and doctors completing this form on behalf of police who have been tasked with locating,

apprehending and transporting a person to the Canberra Hospital for assessment, treatment and care. The

provision at s.83(1)(d), (e) and (f) of the Mental Health Act 2015 requires a first-hand account be provided by

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the person whom apprehended because the information may influence clinical decisions of health providers in

relation to the treatment of the person apprehended.

9. Hand-over – Emergency detention

The MOU and the ACT Health Model of Care aspire to limit police involvement in mental health related

matters (where criminality is not a factor) and this includes protocols for the timely release of police officers

whom apprehend, transport and lodge a person at the Canberra Hospital pursuant to s.80(1) of the

Mental

Health Act 2015.

9.1 Hand-over – Timeliness benchmark

Persons apprehended by police per s.80(1) of the Mental Health Act 2015

will be transported to the

Emergency Department at the Canberra Hospital in order for a medical assessment to be undertaken prior to a

mental health assessment.

Where the person does not pose a threat to any person, police will be released as soon as practicable after

hand-over to the Emergency Department and completion (if warranted) of a statement per s.83 of the

Mental

Health Act 2015.

The MOU aspires to a hand-over benchmark not exceeding 45 minutes. Mental Health staff accompanying

the person during transport should remain with the person until a handover is affected.

After waiting 30 minutes, police may speak to the triage nurse and inquire about the reason for the delay and

an expected time of their release. If the release of police is anticipated to exceed the benchmark, attending

police may contact the Duty Operations Manager (DOM) in Police Operations and advise them of the delay.

The DOM can contact the Nurse Navigator for the Emergency Department to discuss options to expedite the

release of police including the invocation of a ‘grey response’.

If contact with the Nurse Navigator is unable to resolve the retention of police, the DOM may contact the

Canberra Hospital Admitting Officer (between 08:00hrs and 00:00hrs), or outside of those hours, a senior

registrar for the Emergency Department.

9.2 Hand-over – Initiating a Grey Response

A ‘grey response’ is an internally activated response within the Canberra Hospital’s Emergency Department to

actual or potentially violent, aggressive, abusive or threatening behaviour exhibited by patients or visitors.

Typically the invocation of the protocol allows the Emergency Department to draw on resources in other

hospital departments to assist in the response.

In a mental health setting, the protocol has been adapted by the Canberra Hospital to permit activation in

order to release police officers in a timely manner per the MOU benchmark. When initiated a senior ED

doctor, clinical nursing coordinator and mental health clinician will attend the location of the incident to

provide additional assistance including the provision of wards men to remain with the apprehended person

and thereafter allow police to be released.

In addition to the MOU benchmark, if police have any concerns the person apprehended under s.80(1) of the

Mental Health Act 2015

is displaying any of the above behaviours either on route to, or at the hospital, they

should contact Emergency Department triage asking for the consideration of a ‘grey response’.

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10A. Apprehension – Escapee from a secure mental health facility (Dhulwa)

In addition to the AMHU, the ACT has a secure mental health facility (Dhulwa) to lodge persons convicted of

crimes but who are determined to be unfit to be placed in a general prison population due to a mental illness

or disorder.

Should a person escape from Dhulwa, the Mental Health Act 2015

provides a power of apprehension at

s.144D(4):

(1) This section applies if a person taken to be in the custody of the director-general escapes from a

secure mental health facility.

(2) The person in charge of the secure mental health facility must immediately tell the police that the

person has escaped.

(4) A police officer, authorised ambulance paramedic, mental health officer or doctor may apprehend the

person and return the person to the secure mental health facility.

10B. Statement required - Apprehension of escapee from a secure mental health

facility (Dhulwa)

Similar to the statement required by s.83 of the Mental Health Act 2015 when detaining a person under the

s.80 Emergency Detention provision, a statement is required to be completed by a police officer if they

apprehend an escapee from Dhulwa:

s.144D(5) Mental Health Act 2015:

(5) A police officer, authorised ambulance paramedic, mental health officer or doctor who apprehends

and returns the person to a secure mental health facility must give the director-general a written

statement containing any of the following relevant information:

(a) the nature and extent of the force or assistance used to enter any premises, or to apprehend

the person and take the person to the facility;

(b) the nature and extent of any restraint, involuntary seclusion or forcible giving of medication

used when apprehending the person or taking the person to the facility;

that may have an effect on the person’s physical or mental health.

A form has been drafted by ACT Forensic Mental Health and is kept by Dhulwa where it will be provided to

police whom apprehend an escapee. Unlike the s.83 Statement of action taken form, the completed s.144D(5)

form needs to be photocopied at the facility in order for it to be later uploaded as a scanned image to PROMIS.

11A. Power to enter in order to apprehend a person

Additional powers including a power of entry are conferred upon police officers to apprehend a person - s.263

of the Mental Health Act 2015

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(1) This section applies to a person (an authorised person) who is authorised to apprehend, remove, detain

or take a person to a place under any of the following provisions:

The ‘following provisions’ referenced by s.s.(1) include s.80 (Emergency Detention) and s.144D (Escapee from

secure mental health facility – Dhulwa) of the Mental Health Act 2015

Police officers are therefore empowered to enter premises in order to apprehend a person and to call on

assistance in order to do so:

(2) The authorised person—

(a) may, with necessary and reasonable assistance and minimum force, enter any premises to

apprehend, remove or take the person to a place; and

(b) may use necessary and reasonable assistance to enter premises and apprehend the person; and

to—

(i) an approved mental health facility; or

(ii) another place where the person may be detained for treatment, care or support.

The provision at s.263(2)(a) of the Mental Health Act 2015

concerns an authorised person (police officer)

entering or using assistance of another party to enter a premises with the purpose of the authorised person

apprehending. Whereas the provision at s.263(2)(b) of the

Mental Health Act 2015 concerns the authorised

person (police officer) calling upon assistance of another party to apprehend the person.

Pursuant to s.80(2) of the Mental Health Act 2015, if a doctor or mental health officer forms the opinion the

Emergency Detention criteria applies, the doctor or mental health officer may request police assistance in the

apprehension of the person under s.263 of the

Mental Health Act 2015.

Note: A police officer shall request information from the doctor or mental health officer, which supports the

requisite standard of belief and criteria to apprehend a person under this section.

Should a person subject to emergency detention per s.80 of the Mental Health Act 2015 refuse entry to a

premises, or if information suggests the person has a propensity for violence, consideration shall be given to

utilising the Specialist Response Group and the Police Negotiation Team as well as the CATT.

11B. Power to search and seize items from an apprehended persons

Additional powers including a power of search and seizure are conferred upon police officers upon

apprehending a person - s.264 of the Mental Health Act 2015

(1) This section applies to a person (an authorised person) who is authorised to apprehend, remove, detain

or take a person to a place under any of the following provisions:

The ‘following provisions’ referenced by s.s.(1) include s.80 (Emergency Detention) and s.144D (Escapee from

secure mental health facility – Dhulwa) of the Mental Health Act 2015

Police officers are therefore empowered to search and seize apprehend persons:

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(2) The authorised person—

(a) may carry out a scanning search, frisk search or ordinary search of the person if there are

reasonable grounds for believing that the person is carrying anything—

(i) that would present a danger to the authorised person or another person; or

(ii) that could be used to assist the person to escape the authorised person’s custody; and

(b) may seize and detain a thing found in a search conducted under paragraph (a).

The terms Frisk Search and Ordinary Search are defined in s.264(6) of the Mental Health Act 2015

however it

has the same meaning as criminal statutes in the ACT.

The police officer is thereafter obligated to make a record of the search per s.264(3) of the Mental Health Act

2015:

(3) The authorised person must make a written record of anything seized under this section.

(5) However, subsection (4) does not apply to a thing if the authorised person believes on reasonable

grounds that—

(a) the only practical use of the thing in relation to the premises where it was seized would be an

offence against this Act; or

(b) possession of the thing would be an offence; or

12. Protection against liability

The Mental Health Act 2015 at s.265 contains protections from civil liability for police officers fulfilling

functions of the Act:

(1) An official is not civilly liable for conduct engaged in honestly and without recklessness—

(a) in the exercise of a function under this Act; or

(b) in the reasonable belief that the conduct was in the exercise of a function under this Act.

(2) Any civil liability that would, apart from this section, attach to the official attaches instead to the

Territory.

13. Criminality

Allegations of criminal conduct involving a person with mental illness or mental disorder, shall be investigated

in the same manner as any other criminal investigation whether detained or voluntarily remaining in a mental

health facility.

The extent of criminal liability due to mental impairment is a matter for the Court to determine. The

presumption of criminal liability in this circumstance is provided by s.28(4) of the Criminal Code 2002

and

therefore the decision to prosecute should not be influenced by mental impairment.

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This guide does not seek to revoke existing protocols for criminal sanctions enacted by police concerning

persons with a mental illness or disorder. If grounds for arrest are satisfied per s.212 of the Crimes Act 1900

the person shall be taken to the Watch House where, should they require a mental health assessment, CATT

can be contacted to attend but the person shall undergo the charge process irrespective of their mental

wellness.

In cases where a fitness to undergo an interview assessment is required, Clinical Forensics, Australian Capital

Territory (CFACT) should be requested to attend.

14. Custody

Where a person in police custody is suffering a mental illness or mental disorder and is required to attend an

approved health facility for mental health treatment prior to appearing before the Court, the person is

deemed to be still in police custody.

The person may be cared for by mental health staff in a mental health facility however there is not a transfer

of custody to mental health workers and subsequently police are required to maintain custody of the person

until such time as they are discharged from the facility.

In circumstances where police are required to maintain custody of a person admitted to a treating facility,

police will consult with the management of that unit to ensure the police presence is as unobtrusive as

possible.

15. Notifications

15.1 Children

Where a child is apprehended in accordance with the provisions of the Mental Health Act 2015

, a police officer

is obliged under s.252I of the Crimes Act 1900,to promptly take all reasonable steps to tell a responsible

person of the child’s apprehension.

15.2 Adults

When a person is detained under s.89(6) of the Mental Health Act 2015

, the person in charge of a mental

health facility where a person is detained under s.81 or s.85 must ensure that the person has adequate

opportunity and assistance to notify a relative or friend of their detention.

All efforts should be made to contact a parent or a family member or a friend to inform them of the person’s

detention if it appears on reasonable grounds not to be detrimental to the person to do so.

Police shall assist clinicians to comply with these provisions should they have apprehended the person or if

asked to assist in making these notifications.

16. Firearms and accoutrements – Carriage into facilities

Aligning with Parts 7.9 and 7.10 of Commissioner’s Order 3, except in circumstances where police officers are

responding to an incident that warrants the retention of accoutrements, they will not wear firearms, batons,

chemical agents or conducted energy weapons in a mental health facility.

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In circumstances where police officers are attending a mental health facility for routine or non-urgent

incident/enquiry, they will secure their firearms, batons, chemical agents and conducted energy weapons in

the approved safe provided by the facility pursuant to Part 15.4 of Commissioner’s Order 3

17. References:

17.1 Legislation

ACT Civil and Administrative Tribunal Act 2008

Bail Act 1992

Children and Young People Act 2008

Crimes Act 1900

Criminal Code 2002

Mental Health Act 2015

Privacy Act 1988 (Cth)

17.2 AFP Governance

Commissioner’s Order 3

Memorandum of Understanding Between the ACT Ambulance Service, the Australian Federal Police, the

Canberra Hospital, Calvary Health Care ACT, Mental Health, Justice Health and Alcohol & Drug Services for

People Requiring Mental Health Care

National Guideline on Police Custodial Facilities and People in Custody

17.3 Other sources

Fourth National Mental Health Plan

Annexure - Frequently Asked Questions

Q. You have taken someone into custody under S.80 and they have assaulted me, should you take them to

the Watch house first before taking them to TCH?

A. No, someone taken into custody for an emergency detention must be taken to a registered facility,

pursuant to S.80 - If the charge of assault cannot be cleared by a summons then the member should consider

arranging with Mental Health to contact Police and advise when the person is to be released so they can be

arrested.

Q. If Police and ACTAS attend a job where a person is subject to an Emergency Detention (because they have

appear to be suffering a mental illness or disorder and have threatened to kill themselves) and is non-

aggressive and compliant who should transport them?

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A. Under the least restrictive model the most appropriate form of transport is Mental Health and then ACTAS.

The MOU recommends that police are not to be used to apprehend or transport persons where a less

restrictive means is available and this includes the person being compliant with the detention. Where no less

restrictive means is available (ACTAS or Mental Health not in attendance) and there are no issues in relation to

medical supervision then the person can be transported by Police in the least restrictive means possible i.e. in

a sedan and not the back of a cage.

Q. Should Police transport a person requesting mental health treatment to TCH?

A. No. Police powers relate to emergency detentions and not voluntary admissions. People wanting to

voluntarily admit themselves to a Mental Health Facility should be referred to Mental Health triage if they

cannot get themselves to a facility.

Q. You have attended a job with ACT Mental Health to assist them in relation to an emergency detention,

the person is uncooperative and aggressive requiring them to be handcuffed, but when you get to hospital

Mental Health are not there. What should you do?

A. The powers of Doctors and Mental Health Officers in relation to emergency detention are broader than

those of a police officer or paramedic. The reasons and observations for the emergency detention reside with

the Mental Health team. Members should contact Police Operations to ascertain when Mental Health will

attend and escalate through the DOM accordingly if unable to obtain a satisfactory response.

Q. ACTAS require Police assistance to restrain a person so they can be sedated and placed on an emergency

detention. ACTAS ask you to take the person to TCH due to the violence displayed.

A. In no circumstances where a person has been sedated or requires medical supervision should a person be

transported to TCH on an emergency detention by Police. When necessary police can travel and assist ACTAS if

required. The emergency detention and statement of action taken (sedation) need to be completed by ACTAS.

Q. If you help to physically restrain a person for the purpose of ACTAS sedating a person and they complete

the Emergency Detention should you still fill out a UoF report?

A. Regardless of who completes the emergency detention paperwork, if you have used force to restrain

someone you should always complete a UoF report.

Q. Whose responsibility is it to complete a s.83(1) Statement of action taken or a s.144D(5) Statement?

A. Regardless of whom called for the apprehension of a person , the obligation to complete the written

statement falls to the person whom apprehended the person.

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