Legislative context

The states and territories have constitutional responsibility for mental health legislation and providing mental health services in Australia while the Commonwealth government provides funding for the universal health care system (Medicare), aged care and social support and more recently for the National Disability Insurance Scheme [11–12]. The Commonwealth government can indirectly impact mental health legislation through ratification of international treaties or United Nations (UN) covenants.. The Commonwealth has used this power on two occasions through ratification of the United Nations General Assembly’s Principles for the Protection of People with Mental Illness and for the Improvement of Mental Health Care [13] released in 1991 and more recently the 2006 Convention on the Rights of Persons with Disabilities (CRPD) [14].

Australia ratified the UN CRPD in July 2008. The CRPD differs from previous rights instruments as it addresses civil and political as well as social and economic rights [15]. It adopts a social rather than a medical model of disability shifting the focus from the individual deficits of the person experiencing the disability to systemic deficits and the adaptations required to enable full participation in society [14–17]. Four articles from the CRPD have direct application for mental health. Article 17 protects the integrity of the person on an equal basis with others, Article 14 relates to liberty and security of persons and Article 12 provides for equal recognition before the law [14,17]. A fourth article, Article 25 of the CRPD requires that:

State Parties recognise that persons with disabilities have the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability [14,18].

Ratification of the CRPD has required a revision of Australian mental health legislation to bring it in line with the Convention. Mental health legislation in turn, impacts clinical practice. Article 17 of the CRPD states that: “[e]very person with disabilities has a right to respect for his or her physical and mental integrity on an equal basis with others.” [14] McSherry notes that earlier iterations sought to protect people with disabilities including the mentally ill from forced institutionalisation [15]. Article 14 is more explicit. It states in part, that “the existence of a disability shall in no case justify a deprivation of liberty.” [14] This can be interpreted as prohibiting involuntary detention of people with mental illness [19,20]. This interpretation has been widely debated. The European Court for Human Rights (ECHR) for example, has rejected a prohibition on involuntary detention [19]. Minkowitz notes that mental health legislation generally allows involuntary detention adopting a medical rather than a social model of disability [20].

Australian mental health legislation, in line with other countries, enables involuntary detention [17]. As part of their role paramedics can restrain people with presumed mental illness for a limited time for the purpose of medical/psychiatric assessment (involuntary care). A central determinant of detention in Australian mental health legislation is capacity for harm to self or others [21]. A focus upon harm places risk assessment and management at the centre of treatment requiring practitioners to balance patient freedom with clinician and public safety [22–23]. Further, it requires the practitioner judge the potential for harm. Callaghan and Ryan argue that methods for determining future risk are unreliable and may result in denial of treatment to those requiring it and detention of people who may not require it [24].

A second criterion for detention in Australia is that the person has a mental illness or disorder as defined in legislation [25]. Legislation generally reflects current medical understandings of mental illness [11]. Biomedical definitions of mental illness shift focus from the social context of care to diagnosis and impairment, evident in legislation which defines mental illness in terms of behavioural deficits [17], placing greater responsibility on frontline providers of health care to ensure assessment and care of those with mental health concerns.

While Australian mental health legislation enables involuntary detention, the tenet of least restrictive practice is critical to the interpretation of current mental health legislation. The principles that underlie mental health legislation are often fore fronted in the legislation or stated within the legislation as foundational concepts. Least restrictive principles are clearly stated in all state and territory mental health legislation. Paramedics are integral in the first line response and service provision of acute mental health care and are therefore required to consider least restrictive principles in the way they implement restraint and care.

A final criterion addressed by Gray et al. is capacity [25]. Capacity is covered by Article 12 of the CRPD which requires signatories to ensure equal recognition before the law. The second clause states that:

States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life [14].

Article 12 recognises legal capacity as both the legal standing of the individual in requiring equal treatment before the law for people with disabilities but also the legal agency of that person [26]. Legal agency requires that states “respect the rights, will and preferences of the person” and ensure that support is available to enable the disabled person to exercise their legal capacity.[14 (p.763), 26] Series notes that a medico-legal definition of mental capacity has been utilised within mental health legislation which associates capacity with a person’s ability to give informed consent to a particular treatment decision [27]. Capacity is usually understood as existing if the person can understand the choices available; weigh up the consequences of their choices and the impact of those consequences; and communicate their decision [28]. Series argues that Article 12 of the CRPD separates legal capacity from mental capacity through recognising the role of environment in enabling or hindering the agency of a person with disabilities, removing the association of capacity with individual deficit [27].

In practice, most mental health legislation utilises a medio-legal definition of capacity focusing upon the functional capacity of the individual [27,29]. This approach is reflected in paramedic practice. Evans et al. for example, associate capacity with taking in and retaining information, believing it and weighing the information to balance risk and needs [30]. In addition to mental health legislation, paramedics are required to have some knowledge of other relevant legislation that deals with consent and refusal of treatment (e.g., The Consent to Medical Treatment and Palliative Care Act (SA)) that promote a medico-legal definition of capacity and its relevance to mental health assessment and legislation.

This paper is part of a larger study analysing how policy and practice guidelines for mentally ill patients have been developed and implemented by ambulance services in Australia [31]. Legislation and how it defines mental illness and the paramedic role, links to how policy and care directives are developed, translated and interpreted to frontline staff (paramedics) and enacted in clinical practice. These legislative documents influence how someone in mental distress is approached, assessed and treated, and define how paramedics relate to the broader health care team. Paramedics in most Australian jurisdictions now have the power to take a person to a designated mental health facility involuntarily for assessment for mental illness. This document analysis provides the opportunity to compare the various mental health legislation across Australia as it pertains to paramedic practice, the powers bestowed and how these can affect clinical practice, operational and educational considerations.

How is mental illness defined?

There are subtle differences in how mental illness is conceptualised and framed in legislation across Australian state and territory mental health acts. The following components were common in descriptions of what is deemed as mental illness: impairment, capacity, physical risk, assessment and treatment. Overarching the definitions in the Acts is the concept of impairment, where mental illness is defined as impairment of a person’s mental function (be it temporarily or permanently). Table 1 summarises the definitions adopted in Australian Mental Health Acts.

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Table 1. Definition of mental illness in Australian Mental Health Acts.

https://doi.org/10.1371/journal.pone.0341138.t001

Underpinning these Acts are medical and clinical definitions of mental illness that are most commonly expressed in terms of the presence of a range of symptoms that are clinically significant or have an effect on the person’s behaviour or ability to function. These symptoms include sustained or repeated irrational behaviour, and disturbance of thought, mood, perception or memory. Clinical standards are also referenced in several of the Acts (notably QLD & NT). The reference to clinical standards and clinical significance are relevant in that they assume a level of knowledge of current mental health clinical standards and clinically significant findings from the mental state assessment and examination Table 2.

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Table 2. Exclusionary Criteria.

https://doi.org/10.1371/journal.pone.0341138.t002

All Acts also include a range of exclusionary criteria which provide legal protection against coercive treatment. The exclusionary criteria reflect the civil rights protections outlined in international human rights instruments [11].

The exclusionary criteria are common across all jurisdictions and address the following key human rights. A person cannot be judged as being mentally ill on the basis of: expression of a particular political opinion or belief or activity; religious opinion or belief or activity; particular philosophy; sexual preference or orientation or activity; engagement in illegal conduct or antisocial activity; particular economic or social status; membership of a particular cultural or racial group; intoxication [drug and alcohol] (however induced); intellectual or physical disability; acquired brain injury or dementia. The definitions of mental illness and exclusionary criteria impact paramedic practice. The definitions are often broad and provide scope for interpretation of when behaviour allows paramedics to enact their powers under the Act to transport for further medical assessment and treatment. This opens paramedic clinical practice to wide interpretation and implementation and arguably relies on appropriate training and knowledge base in this area.

Risk is a prerequisite for involuntary care and transport for further assessment in all mental health Acts. The use of involuntary care may be made for the purpose of protection from harm (including self-harm and the risk of mental or physical deterioration) and protection of others from harm. Risk is also referred to more broadly within the Acts. This broader focus refers to the benefit or risks of treatment and management, the need for monitoring and continual review and to ensure that any intervention is not detrimental but therapeutic in nature Table 3. These broader references to risk pertain to mental health facilities, psychiatric assessment and management and not to the pre-hospital environment and specifically paramedic, scope and clinical practice. The following table outlines where in the legislation risk is referred to in relation to paramedic role and powers.

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Table 3. Risk: Harm to Self, Others and/ or the need for Medical Review.

https://doi.org/10.1371/journal.pone.0341138.t003

Capacity is also referenced in all Australian mental health Acts. Impairment of a person’s mental function may affect their capacity for decision making and consent and is a factor in whether a person refusing treatment can be transported by paramedics for assessment. Capacity is defined in most mental health Acts in relation to understanding, retaining, and weighing information and communicating decisions. If the person is viewed as having capacity, they cannot be transported if they refuse treatment.

Table 4 outlines the definition of capacity in the mental health Acts. All Acts require assessment of capacity for decision making however, the older Acts (NT and NSW) do not provide a specific or operational definition of capacity. While the NT legislation identifies broad areas in which cognitive impairment may be evidenced (including decision making, problem solving and communication) the Act does not specify criteria for determination of capacity.

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Table 4. Criteria for determining capacity in current Australian mental health legislation.

https://doi.org/10.1371/journal.pone.0341138.t004

How are paramedics defined?

Paramedics are broadly described using the term Ambulance Officer and are generally designated under the various state and territory Acts as an Authorised Officer or Authorised Person. Western Australia appears to be the exception with ambulance personnel identified under the term transport officer. An Ambulance Officer (AO) is generally defined as someone employed as an AO or a volunteer AO in an (approved) organisation that provides ambulance services. Ambulance Officers are authorised by various entities (e.g., the CEO of the SA Ambulance Service, the NSW Director General, and the Chief Health Officer in the Northern Territory) to exercise the powers conferred to them within the Acts. Victoria, Australian Capital Territory and Northern Territory are the only mental health acts that specifically use the term paramedic within the Act. The differing definitions of paramedics in the Mental Health Acts suggest that the recently regulated profession is still being recognised for the changing nature of paramedic work and scope of practice. Paramedics work in a variable and autonomous environment which means that clinical training and decision-making are critical to how they translate and interpret their legislative responsibilities. In providing mental health care paramedics act as first responders meeting the acute need of people in psychological distress and assessing and managing crisis in its initial stages. Although the powers under legislation for paramedics are similar to those of other health professionals such as mental health nurses and social workers the boundaries of clinical practice are different Table 5. These differing roles define boundaries and how paramedics coordinate, refer to and use mental health services or other allied health providers. Paramedics with increasing scope of practice are also contending with the overarching aims of maintaining the person in their home and hospital avoidance which adds to the need for paramedics to assess and make clinical decisions in this space.

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Table 5. How are paramedics defined in Australian Mental Health Acts.

https://doi.org/10.1371/journal.pone.0341138.t005

Paramedics’ role and powers

Paramedics have various roles and powers within the Mental Health Acts. These roles and powers relate to the ways in which mental illness and paramedics themselves are defined in the Acts. The powers held by paramedics are encompassed by what Llewelyn et al.[23(p. 1037)] designate as “involuntary assessment” which they define as “a statutory authority which allows police officers, paramedics and health practitioners to override a person’s autonomy where they form the view that person has a mental illness, and may be at risk of harming themselves, or others”. Assessment and care occur within the context of least restrictive practice, where paramedics are to use these measures only when no other alternative is available. Table 6 outlines where the principle of least restrictive practice is mentioned within each state and territory Act as it pertains to the enacting of powers for paramedics.

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Table 6. Least Restrictive Principles mentioned in Australian Mental Health Acts.

https://doi.org/10.1371/journal.pone.0341138.t006

Six main powers, all of which focus on measures of involuntary care, are defined in the Acts, including: transport, remain in place, restraint, force, search and use of drugs for chemical restraint. Table 7 shows how these powers are conferred on paramedics within each state. The power to transport a person who has, or is suspected of having, a mental illness is a key power of paramedics in the Acts, with all Acts affording paramedics this power. The person is generally transported to the nearest approved treatment facility or, if that is not possible, to the nearest hospital. In most jurisdictions paramedics can make a clinical judgement that a person needs to be assessed however, in Western Australia the Mental Health Act 2014 requires that a medical practitioner or authorised mental health practitioner initiate transport for assessment and in Victoria the Mental Health Act 2022 makes police and Protective Service Officers who police transport hubs, responsible for care and control in a mental health crisis.

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Table 7. Paramedic powers as outlined in legislation in relation to detention and restraint across Australian jurisdictions.

https://doi.org/10.1371/journal.pone.0341138.t007

The powers of restraint and use of force are the second most common powers conferred on paramedics. The Queensland Ambulance Service identify three forms of restraint [34]. Physical restraint involves the use of part of another’s body, mechanical restraint involves the use of device or equipment and chemical restraint the provision of sedation [34]. The use of force and restraints is supported to prevent harm to the person or others and to prevent further physical and mental deterioration. All states and territories have the power to initiate restraint except WA. Paramedics in WA cannot directly instigate physical and mechanical restraint under the Mental Health Act 2014 (WA) unless authorised by a medical practitioner or under the Public Health Act. The power to use drugs for chemical restraint (if it is in the paramedics’ scope of practice) is present in six of the Acts (NSW, SA, Tas, Vic, ACT and NT).

Paramedics in the ACT, NSW, SA, Tas and Vic also are granted the power to search the person and take possession of anything that may cause harm to the person, others or property. In WA, police and transport officers can search the person if safe to do so and a transport order is in effect while in NT and Qld the power to search the person is not specified in the Mental Health Act. Five Acts (ACT, NT, SA, Tas and Vic) also discuss the power to enter into and remain in a place where they suspect the person may be found (e.g., if a transport request has been issued). In NSW and WA, only police can enter and remain in place. In WA a transport officer can enter but only if a transport order is in effect and it is safe to do so. Therefore, in general the responsibility tends to fall to the police to search, enter and apprehend. Paramedics in Qld require consent of an occupier to enter premises, (unless it is a public place and during the hours of operation) or a warrant has been issued.

How paramedics are identified: Their role and responsibilities

All mental health Acts except the Mental Health Act 2014 (WA) identify paramedics or ambulance officers within their legislation. This is key as it denotes the significant role paramedics have in providing care for those with mental illness and legislates those responsibilities as a health concern and part of the paramedic role [24]. Safe transport is identified as the primary responsibility of paramedics, but the legislation in several states and territories also confers responsibility for decision-making to enact temporary detention to transport patients for further assessment. This is at odds with other countries such as the United Kingdom, where this responsibility lies with the police [9]. In all states and territories other than Western Australia and Victoria paramedics have been granted this power. As part of being granted these powers paramedics are required to assess and make decisions around key areas impacting the appropriateness of involuntary care and further assessment namely: the definition of mental illness which guides what they recognise and assess as mental illness; assessment of risk; capacity to make informed treatment decisions and the use of restraint. In general, physical, mechanical and chemical restraint can be used in all jurisdictions except Queensland which prevents use of mechanical restraint, but there are restrictions based on the requirement for authorisation and clinical scope of practice.

Defining mental illness

Australian mental health legislation adopts a view of mental illness based upon deficits of the individual rather than the social model of disability underpinning the CRPD. This approach is in line with legislation in other countries which seeks to protect people with mental illness from unnecessary custodial care through tightening criteria for detention [17,19]. All Mental Health Acts except the Mental Health Act 2009 (SA) define mental illness as a disorder of thought, mood and perception (e.g., delusions, hallucinations) with many also including disturbed behaviour. South Australian legislation adopts a broader definition of mental illness ‘as any illness or disorder of the mind’ [25]. Fistein et al. argue that broader definitions of mental illness ensure that people requiring treatment receive it [35]. This may enable access to services meeting Article 25 of the CRPD however, broader definitions require greater discretion on the part of clinicians in relation to what constitutes mental illness and potentially opens the Act to misuse.

Inclusion and exclusion criteria for mental illness within legislation are used as a means of preventing inappropriate involuntary care. The exclusion criteria reflect civil rights protections offered in international treaties and current community values [11]. All Australian mental health Acts include exclusionary criteria relating to political, religious, philosophical and sexual beliefs and practices. People experiencing disorders with identifiable physical causes such as brain injury, dementia and/or developmental or intellectual disability are also excluded. Economic and social status are exclusionary criteria in all states and territories except the Australian Capital Territory; a previous history of treatment for mental illness is an exclusionary criterion in Queensland, Northern Territory, Victoria and Western Australia and family conflict is an exclusionary criterion in Queensland, Northern Territory and Victoria. Tasmanian and Victorian legislation cites gender identity and expression as an exclusionary criterion.

Capacity and risk

All Mental Health Acts require assessment of capacity and risk be undertaken prior to transportation for further assessment and care. A perception that the person poses a risk to self or others alongside of lack of capacity are required for transport for involuntary assessment. Paramedics utilise a medico-legal definition of capacity. Six of the eight mental health Acts examined provide a definition of capacity based upon assessment of level of mental function. This is at odds with the definition of legal capacity evident in the CRPD but provides some protection against unnecessary detention through provision of guidelines [26]. In two jurisdictions (NSW and NT) operational definitions of capacity are lacking. The absence of criteria for determination of capacity requires paramedics (and other designated mental health professionals) to make a judgement call about a person’s capacity that they may feel ill-equipped for, and which may be difficult to defend in the absence of a standardised assessment. Further, due to the acute or cyclic nature of mental illness, especially when attended to in the community, capacity can be difficult to assess. Key difficulties with assessment of capacity in community or acute settings relate to time constraints and access to past history required to ascertain the capacity or needs of an individual.

Risk is universally associated with risk to self and others and the need for further medical review. In practice, risk often takes precedence over capacity [23,36]. For Llewelyn et al. mental health legislation creates tension for clinical decision makers between prevention of harm and the autonomy of the person experiencing mental health symptoms [23]. Paramedics often make decisions regarding safety and risk with little contextual information regarding the person and their prior contact with the mental health system leading to early decisions that involuntary care is required [21,37]. There is also potential for reattendance by paramedics when the person is not admitted or placed under community mental health team review. In most states and territories, paramedics have access to mental health triage services that are state based, co-response teams (although access may be limited to traditional office hours) and in some circumstances mental health liaisons that are based in the operations centres of the ambulance services are available which can provide further contextual information regarding the patient to assist in clinical decision making. Limited alternate care pathways may lead paramedics to view transport to emergency departments as their only option [38].

Impact of other legislation

Paramedic practice in relation to mental health may also be complicated by the requirements of other legislation. As an example, Llewelyn et al. [23] note that in Queensland paramedics and police can take persons displaying disturbed behaviour for assessment using Emergency Examination Authority under the Public Health Act 2005 (Qld). The criteria for involuntary assessment under the Public Health Act 2005 (Qld) are:

1. (1). The person’s behaviour indicates they are at immediate risk of serious harm;
2. (2). The risk appears to be the result of a major disturbance in the person’s mental capacity; and
3. (3). The person appears to require urgent examination or treatment and care [23].

This is less than is required under the Mental Health Act 2016 (Qld) and has potential to create a conflict of interest in responding to legislation.

Similarly, section 243 of the Western Australian Criminal Code (7.4.2) states it is lawful for any person to use such force as is necessary in order to prevent a mentally impaired person from doing violence to any person or property [39]. This legislation enables paramedics to use restraint which is not a power granted under the Mental Health Act 2014 (WA). This is problematic as it provides a legal means to extend paramedic powers when responding to people who may be experiencing mental illness.

Study limitations

The study records how mental health legislation defines the role of paramedics in responding to patients who present with mental health symptoms. Mental health legislation was examined at a specific point in time and as such, the paper provides a snapshot of legislative requirements at the time. An overview of historical changes in state and territory Acts was outside the scope of the study. One Mental Health Act, the Mental Health Act 2014 (Vic), was repealed and replaced by the Mental Health and Wellbeing Act 2022. while changes to a second Act (Tas) changed the terminology and exclusion criteria and limited the period that paramedics can detain a patient with mental health symptoms. These changes had limited effect on paramedic role but highlight emerging issues for consideration in management of mental illness.