Key messages

  • A police officer can apprehend a person who appears to have mental illness to prevent serious and imminent harm to the person or to others.
  • The Act permits police to enter premises, apprehend people, use force and bodily restraint and provide transport to take people to a designated mental health service in prescribed circumstances.

Victoria Police have a role in apprehending people with mental illness.

Police apprehension powers

Section 351 of the Mental Health Act 2014 sets out the powers of a police officer to apprehend a person who appears to have mental illness where the person needs to be apprehended to prevent serious and imminent harm to the person or any other person. This section replaces section 10 in the Mental Health Act 1986.

Police are not required to make a clinical judgment about whether the person has mental illness.

As soon as practicable after apprehending a person, a police officer must arrange for the person to be taken to a registered medical practitioner or mental health practitioner to be examined. For these purposes the police may take a person to a public hospital to be examined by a registered medical practitioner or mental health practitioner.

The registered medical practitioner or mental health practitioner will examine the person to determine whether to place the person on an Assessment Order.

By agreement between police and the hospital staff, police may release the person from custody into the care of hospital staff before the assessment is complete subject to the following considerations:

  • If there are no significant safety concerns – police can transfer care to hospital staff and the person is released from police custody. If care is transferred, hospital staff will be responsible to arrange for the person to be assessed by a registered medical practitioner or mental health practitioner.
  • If there are significant safety concerns – police, by agreement with hospital staff should remain until the assessment by a registered medical practitioner or mental health practitioner is complete.

Authorised persons

A police office is an authorised person under the Act. Ambulance paramedics, medical practitioners employed by a designated mental health service and mental health practitioners are also ‘authorised persons’ under the Act.

An authorised person may enter premises, apprehend people, use reasonable force and bodily restraint and transport people to a designated mental health service in prescribed circumstances, for example:

  • where a person is subject to an Inpatient Assessment Order, Inpatient Temporary Treatment Order or Inpatient Treatment Order and required to be taken to a designated mental health service
  • where a person is apprehended under section 351 of the Act and police request ambulance to take the person to a designated mental health service
  • where a patient is absent without leave from a designated mental health service.

Bodily restraint – use by police

If a person is required to be taken to or from a designated mental health services or any other place an authorised person, including a police officer, may use bodily restraint.

A police officer may use bodily restraint if:

  • all reasonable and less restrictive options have been tried or considered and have been found to be unsuitable
  • it is needed to prevent serious and imminent harm to the person or to another person.

Search and seizure powers

Search

An authorised person, including a police officer may search a person who is being taken to or from a designated mental health service or any other place.

A police officer may search a person before the person is transported if they suspect that the person is carrying anything that:

  • presents a danger to health and safety of the person or another person, or
  • could be used to assist the person to escape.

Before conducting the search, the police officer must explain the purpose of the search to the person to the extent that is reasonable in the circumstances.

The power to search includes:

  • quickly running hands over the person’s outer clothing (a‘pat-down’ search) or passing an electronic metal device over or close to the person’s outer clothing
  • requiring the person to remove their overcoat, coat or jacket and any gloves, shoes or hat and examining those items of clothing
  • requiring the person to empty their pockets or allow their pockets to be searched.

The police officer must inform the person being searched:

  • whether they will be required to remove clothing during the search
  • why it is necessary to remove the person’s clothing.

A police officer must ask for the person’s cooperation.
A police officer must conduct the search:

  • in a way that provides reasonable privacy for the person searched
  • as quickly as is reasonably practicable
  • if the person being searched is 16 years or younger, the search must be in the presence of a parent or, if a parent is not reasonably available, another adult.

A police officer must conduct the least invasive kind of search practicable in the circumstances.

A pat down search must be conducted by:

  • an authorised person of the same sex as the person searched or
  • a person of the same sex as the person searched under the direction of the authorised person.

Seizure

A police officer may seize and detain a thing found as a result of a search if the police office is reasonably satisfied that the thing –

  • presents a danger to the health and safety of the person or another person or
  • could be used to assist the person to escape.

If a thing is seized and detailed the police officer must make a written record that

  • specifies the thing seized and detained, and
  • specifies the name of the person from whom the thing was seized and detained, and
  • specifies the date on which the thing was seized and detained, and
  • includes any other prescribed details.

Some items, such as weapons, firearms and drugs of dependence, must be retained by police and dealt with in accordance with law (for example, the Control of Weapons Act 1990) and police procedures. Other items may be handed over to the receiving mental health service for safe-keeping so that the item can be returned to the person when it is safe to do so.

Transport

When a person with mental illness needs to be transported to or from a designated mental health service under a provision of the Mental Health Act 2014, that transport should be provided by the least restrictive means possible.

In many circumstances a person with mental illness can be safely transported by a private vehicle or in a mental health service vehicle. However, where this is not safe, Ambulance Victoria has lead responsibility for providing transport either using an emergency ambulance or non-emergency patient transport as appropriate. Police also have a role in transport, either in conjunction with other transport providers or to provide transport where a person cannot be safely transported by other means.

Information disclosure

The Act permits disclosure of information where it is necessary to lessen or prevent a serious and imminent threat to an individual’s life, health, safety or welfare or to prevent a serious threat to public health, public safety or public welfare. See disclosure of health information.

More information

The Department of Health and Human Services - Victoria Police protocol for mental health (October 2016) provides more detailed information about these issues and other common interactions between Victoria Police and mental health clinicians supporting people with mental illness.