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Powers of police and other authorised persons

Information about the specific powers given to the police under the Mental Health and Wellbeing Act 2022.

Health-led approach to mental health emergency

Authorised persons have powers to respond to and transport persons in a mental health emergency. The exercise of these powers must reflect a health led approach to mental health emergency. The principles are set out in the act and include:

  • s. 228 Health led response principle: the powers should be exercised by authorised health professionals where reasonably practicable
  • s. 229 the authorised person must give proper consideration to the mental health and wellbeing principles
  • s. 230 Least restrictive approach principle : The powers must be exercised in the least restrictive way possible.

See ss. 228-231—Mental Health and Wellbeing Act 2022(Vic)

The police have specific powers to take a person into their care and control in a mental health crisis. They can search, transport and restrain a person who is under their care and control. They have these powers as they are included in the definition of an 'authorised person' under the Act.

An authorised person is:

  • a police officer
  • an ambulance paramedic
  • a protective services officer (PSO)
  • a registered medical practitioner (at a designated mental health service)
  • a mental health practitioner
  • any other person prescribed in the regulations.

See ss. 3, 232–239—Mental Health and Wellbeing Act 2022(Vic)(opens in a new window)

When police and protective services officers can take a person into their care and control

A police officer or other authorised person may take a person who appears to be mentally ill into their care and control if they are satisfied that:

  • the person appears to have a mental illness, and
  • because of that illness they need to be apprehended to prevent serious and imminent harm to themselves or some other person.

Police or PSOs are not expected to make any clinical judgment about whether a person has a mental illness.

Under these circumstances police do not need a warrant. They may enter any premises or use such force as may be reasonably necessary. Excessive or unreasonable force may be in breach of the Charter of Human Rights and Responsibilities Act 2006 (Vic) and other legal rights.

If a person is taken into custody, they must be assessed by a mental health practitioner or examined by a doctor as soon as possible.

See ss. 246, 247 and 250—Mental Health and Wellbeing Act 2014 (Vic)(opens in a new window) and Charter of Human Rights and Responsibilities Act 2006 (Vic)(opens in a new window)

Apprehending a person who has escaped

An authorised psychiatrist may take reasonable steps to arrange for a person to be transported to a designated mental health service if that person is absent without permission and they are a security patient or a forensic patient or if the person is subject to:

  • an inpatient assessment order
  • inpatient court assessment order
  • inpatient temporary treatment order
  • inpatient treatment order.

If a person is absent without leave, the authorised psychiatrist will also have to try to notify the following persons:

  • the nominated person
  • a guardian
  • a carer (if the absence will affect the carer and the care relationship)
  • a parent if the person is under 16 years old.
  • The DFFH Secretary if the person is subject to a custody to secretary or guardianship to secretary order.

See s. 220 and 221—Mental Health and Wellbeing Act 2022 (Vic)(opens in a new window)

What happens to a person who has been apprehended?

A person who is taken into the care and control of the police must be taken to a designated mental health service as soon as possible. The police will arrange this. If an assessment has not been carried out on that person, they must be examined to see whether an assessment order needs to be made.

See ss. 3, 232–239—Mental Health and Wellbeing Act 2022(Vic)

Restraining or sedating a person

If a person is being transported (usually to or from a designated mental health service, but it could be to anywhere) an authorised person may use bodily restraint on that person if:

  • they have tried or considered all other kinds of less restrictive options and these are unsuitable, and
  • the bodily restraint is necessary to prevent serious and imminent harm to any person.

See s. 250 - Mental Health and Wellbeing Act 2022(Vic)

Sedation

A registered medical practitioner may sedate the person or direct a registered nurse or ambulance paramedic to sedate the person if all other kinds of restrictive options have been considered or tried and are unsuitable, and the sedation is necessary to prevent serious and imminent harm.

The nurse is also able to authorise the use of sedatives when it is within the ordinary scope of their practice.

See s. 127 and 132—Mental Health and Wellbeing Act 2022(Vic)

Entry, search and apprehension

An authorised person may enter a place where they have reasonable grounds to believe that a person may be found and apprehend that person in order to take them to a designated mental health service. However, before entry the authorised person must:

  • announce that they have authority to enter
  • say why they have this authority, and
  • give any person who is there the opportunity to let them enter.

If entry is not permitted, the authorised person may use reasonable force. Once inside the authorised person must:

  • identify themselves to the person who is to be apprehended
  • explain why they are going to be apprehended
  • tell them where they are going to be taken to
  • tell them why they are being taken there, and
  • if the person is going to be assessed tell them where that will take place.

See s. 246 and 252—Mental Health and Wellbeing Act 2022(Vic)

If a person is being transported under the Mental Health and Wellbeing Act 2022 (Vic)(opens in a new window), an authorised person may search that person if they reasonably suspect that the person is carrying something that could be dangerous to any person.

Before carrying out this search, if this is possible in the circumstances, the authorised person must explain:

  • why they are searching,
  • whether the person will have to remove any clothing during the search, and
  • why it is necessary to remove any clothes.

They must ask the person to co-operate.

They can search anything that is in the possession or control of the person who is being transported. To carry out the search the authorised person must conduct the least invasive kind of search practicable in the circumstances.

See ss. 247, 248—Mental Health and Wellbeing Act 2022 (Vic)(opens in a new window)

Privacy

The person who is carrying out the search must act:

  • in a way that provides reasonable privacy
  • as quickly as possible, and
  • in the presence of a parent or another adult if the person being searched is aged 16 years or under.

If the search involves touching, it must be done by a person of the same sex as the person who is being searched. If no authorised person is of the same sex as the person being searched, another person of the same sex can carry out the search under the direction of the authorised person.

See ss. 247, 248—Mental Health and Wellbeing Act 2022 (Vic)

Seizure of things found

An authorised person may seize and detain anything they find during the search if they are reasonably satisfied that the thing is potentially dangerous to any person.

The authorised person has to make a written record that includes details of the thing that is seized, the person from whom it was seized and the date of seizure.

All items seized have to be securely stored. The following items must be handed over to police as soon as practicable:

  • weapons (prohibited, controlled or dangerous items)
  • a drug of dependence (or related items)
  • firearms
  • any other potentially dangerous item.

If an item is not handed over to the police, it must be given back to the person when the reason for seizure no longer applies. That is, when the person has been transported to wherever they are going (to or from a designated health service or to any other place).

See s. 249—Mental Health and Wellbeing Act 2022 (Vic) and What are firearms and weapons?

After apprehension the person must be assessed

The police officer must arrange for the person to be examined as soon as practicable by

  • a registered medical practitioner, or
  • transporting the person to an approved mental health service, or
  • transferring the person into the care of another authorised person.

See s. 234, 235—Mental Health and Wellbeing Act 2022 (Vic)(opens in a new window)

More information

Legislation

Mental Health and Wellbeing Act 2022 (Vic)

  • s. 3—includes a police officer or PSO as an authorised person and defines a mental health practitioner
  • Chapter 5—Mental health crisis response and transport by authorised persons
    • s. 228 Health-led response principle
    • s. 232 Taking a person into care and control in a mental health crisis
    • s. 220 Persons to be notified if person is absent without leave
    • s. 221 Authorised psychiatrist may arrange for person who is absent without leave to be transported to a designated mental health service
    • s. 246 Authorised person may enter premises
    • s. 247 Authorised person may search a person
    • s. 248 Preservation of privacy and dignity during search
    • s. 249 Authorised person may seize and secure things found during search of person

See Mental Health and Wellbeing Act 2022 (Vic)

Charter of Human Rights and Responsibilities 2006 (Vic)

  • Part 2—lists human rights to be considered

See Charter of Human Rights and Responsibilities Act 2006 (Vic)(opens in a new window)

Updated