Police ordinarily only have power to arrest someone with a warrant issued by a court. There are, however, some limited circumstances where they can detain an individual without a warrant. These circumstances include:
- To arrest someone for an offence – s 99 of LEPRA 2002
- For breach of bail – s 77 Bail Act 2013
- As a citizen’s arrest – s 100 LEPRA
- To take them to a mental health facility – s 22 Mental Health Act 2007
The powers of police to detail a mentally ill or mentally disturbed person under the last of the above circumstances are set out under the Mental Health Act 2007 (NSW) (‘the Mental Health Act’).
What is the ‘Mental Health Act’
The Mental Health Act provides a legal framework for the care, treatment, and protection of people who experience mental illness or mental disorders. Importantly, it includes provisions that allow NSW Police to intervene in circumstances where individuals may pose a risk to themselves or others due to mental health concerns.
Section 22 – Police Power to Detain
Section 22 of the Mental Health Act empowers Police to detain a mentally ill or mentally disturbed person for the purpose of transporting them to a declared mental health facility.
There are two limbs to section 22(1) that must be established for the section to be enlivened.
That the individual appears to be mentally disturbed
The first limb of section 22(1) requires the individual that the Police are intending to detain to appear to the apprehending police officer to be mentally ill or mentally disturbed.
In the leading case on this issue in New South Wales v Talovic (2014) 87 NSWLR 512; [2014] NSWCA 333 at [137] – See [9], [34] quoting Stuart v Kirkland-Veenstra [2009] HCA 15 at [53] – dealing with the Mental Health Act 1986 (VIC)) the court held that:
- The test under limb one is wholly subjective (at [127]). The focus should be on the apprehending officer and their perception of the mental wellbeing of the individual.
- Police officers are not required to engage with the medical definition of mentally ill or mentally disturbed.
- The Court stated: “it would be inconsistent with the description of section 22 as involving a ‘street level’ judgment that clinical intervention is required if the meaning of mentally disturbed were restricted in such a way.”
The Act does not attempt to define “mental disturbance”. In Talovic, Emmett JA considered that the absence of a definition further supported the notion that the test is purely subjective, not requiring police officers to engage in making a psychiatric diagnosis, or any restrictive assessment.
22 (1) (a) Whether the apprehending officer believes on reasonable grounds that that individual has:
Limb 2 requires that the apprehending officer believe on reasonable grounds that one (or more) of the following three concerns is raised:
- The individual is committing.. an offence;
- The individual has recently committed an offence; or
- The individual has recently attempted to kill himself or herself or that it is probable that the person will attempt to kill himself or herself or any other person or attempt to cause serious physical harm to himself or herself or any other person”
The NSW Court of Appeal in Talovic held that ‘probable’ does not necessarily mean a “prediction that the attempt [or serious physical harm] is more probable than not, but rather that there is a “reasonable degree of probability that harm will occur” (see Talovic at [31]).
Notably, the 2007 Act removed the requirement that “serious harm” be restricted to physical harm, broadening the scope to include potential financial harm or reputational damage. Justice Basten in Talovic observed that the legislative change “may have been thought to broaden, rather than narrow, the available power” under the Act.
22(1)(b) it would be beneficial to the person’s welfare to be dealt with in accordance with this Act, rather than otherwise in accordance with law.
If subsection (a) can be established, it must be beneficial to the individual’s welfare that the matter be dealt with in accordance with the Mental Health Act, rather than otherwise in accordance with law (Section 22(b) of the Mental Health Act).
The case of Talovic provides a guiding interpretation of Section 22 and Section 81. The Court acknowledged that while these powers limit individual rights and freedoms, they do so for the benefit and protection of the person being detained (see Talovic at [3], [12]).
Importantly, the powers under the Mental Health Act are not framed as an arrest, but they do involve detention and a restriction on liberty. Hence, the requirement for proportionality, necessity, and accountability when the powers are being exercised.
Section 81 – Transport, Search and Detention Powers
Section 22(2) empowers law enforcement officers to exercise powers under section 81 of the Mental Health Act. Once a person is apprehended under the Act, section 81 governs the mechanics of how they are to be transported to a mental health facility. Under section 81(2), police may:
- Use reasonable force when exercising their powers; and
- Restrain the person where reasonably necessary in the circumstances.
Where appropriate and legally authorised, sedation may also be administered by qualified professionals to enable safe transport (section 81(3)).
Section 81(4) allows a frisk or ordinary search where there is reasonable suspicion that the person is carrying:
- Anything that would present a danger to themselves or others, or
- Anything that could be used to assist in escape.
Section 81(5) authorises seizure of such items.
These powers are intended to protect both the individual and those transporting them and are exercised within the broader principle of acting in the best interests of the person.
Interaction with LEPRA
Police powers under the Mental Health Act are distinct from and not subject to the requirements of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA).
- No caution is required under the Mental Health Act, unlike in typical arrest situations (see Schedule 1 of LEPRA).
- The procedural safeguards of LEPRA do not apply to Mental Health Act apprehensions, which are considered protective, rather than punitive.
Conclusion
The powers granted to NSW Police under the Mental Health Act 2007 reflect the delicate balance between protecting individuals in crisis, preserving public safety, and safeguarding legal rights.
Cases such as Talovic demonstrate that these powers, though broad, must be interpreted and exercised in line with legislative intent, which is ultimately focused on care, not punishment.
