Crowley v Commonwealth of Australia, Australian Capital Territory and Pitkethly [2011] ACTSC 89

Crowley v Commonwealth of Australia, Australian Capital Territory and Pitkethly [2011] ACTSC 89 - ACTSC 2011 case summary — Zoe

[216]

Dom to Jon. House is first on left at end of Bertel that comes directly off Perry Drive. Jon was in his caravan with two friends when I arrived. I was greeted by his brother Mark (who also lives with his parents) and sister Kate. I briefly met Jon, a strongly built man of about 180 cm with dark curly shoulder length hair. Jon was very expansive and familiar. He told me that he had been depressed for 17 years but now was fine. He hugged me and stated to me that we had 1000 years to clean up the world and that he was going to establish a council of prophets early in the new year to get the process going and welcomed me to his circle. He introduced me to his two friends James and (Saint) Nicholas and pointed to his brother Mark and talked about Mark on the road to Damascus. He said that he had met Judas yesterday and that he had gone and hung himself but that he believed his soul was saved because he had shown remorse through the act of hanging himself. He stated that he had been tussling with the devil who had crushed his hand and that he had healed his hand by immersing it in cold water. Jon then went back to his caravan with his friends who told his parents, Kate and me that they would quickly say goodbye to Jon and send him in to see us.

I then discussed situation with Jon's parents and sister Kate. They advised me that he has not presented like this before. They stated that Jon had been using marijuana since he was teenaged and that he had a history of having bad accidents. They advised that he did not get on with police, particularly since a road accident he had recently which he and his family believe was clearly the fault of the other driver but for which Jon got blamed. They advised that when Jon is coming off marijuana he is usually angry and aggressive, punching holes in walls as he demands money. Jon told them he threw his marijuana in the bin this morning and he shows no signs of aggression or anger. They said that Jon has always been charismatic and had lots of friends but that he has never really had a career. They also advised that he has a history of compulsive behaviour (eg checking he has locked his car many times) and was on aurorix for this but that he has had no medication for that for some time.

Jon did not come in while I was there. Parents agreed that there was no immediate risk of harm to self or others and assured me that they could manage him overnight. They have our number in case the situation takes a turn for the worse. It is my judgement that Jon requires admission to assess and control risk and to initiate treatment. Jon's parents advised that they are not hopeful about our ability to bring him in for assessment without police involvement but would prefer if we could manage without if possible. They believe Jon could leave if he knew we were coming to assess him.

PLAN: AM assessment. P/C to father (Keith) on his mobile (0421 xxx xxx) first.

[352]

1. REFERRAL BY POLICE TO MENTAL HEALTH SERVICES

1.1 Police may request the assistance of MHS in situations where there are indicators that a person is suffering from a mental dysfunction, and this is affecting the person's ability to function in the community to such an extent that police intervention is required.

Appendix A: Indicators of a Person Possibly Suffering from a Mental Dysfunction

1.2 Police shall contact MHS in situations where one or more of the following apply:

(i) where a person is known to suffer from a mental dysfunction and is at risk of harm to themselves and others; or

(ii) is a person who is not known to suffer from a mental dysfunction but:

(a) has a history of, or presents a current threat of deliberate self harm;

(b) is behaving in an overtly unusual way; or

(c) is displaying severe mismanagement of personal affairs as a consequence of their mental state.

1.3 Urgent Referrals to Mental Health Services

Urgent referrals are those which police believe require the immediate attention of MHS, where the person appears to be suffering from a mental dysfunction and requires urgent care.

This includes situations where persons are suicidal and/or threatening other persons or property.

1.4 Referral by the police may be made directly to the Mental Health Triage Service (MHTS)

Telephone number 1800 629 354

6205 1065

or through The Canberra Hospital switchboard

Telephone Number 6244 2222

When making any such referral, as much information as possible should be gained. The following details, if available should be communicated to the MHTS to allow them to plan their response.

(i) Name

(ii) Date of birth

(iii) Address

(iv) Brief description of the subject person

(v) Current location of person

(vi) Presenting problem

(vii) Behaviour of person

(viii) Other services and persons involved

(ix) Presence or availability of family members or other support persons

(x) Evidence of firearms, other dangerous weapons or drugs

(xi) A Doctor or Mental Health Worker whom she/he has seen

...

1.5. Mental Health Service Response To Referrals

The initial response by MHTS will be to obtain as much information as possible from police to determine the most appropriate mental health service response.

If initial contact is between AFP-Operations Monitoring and Intelligence Support (OMIS) and MHTS, arrangements for communication with the police member at the scene will be made.

In situations where MHTS decide that a mental health service response is not appropriate, MHTS will provide information to assist police to identify the appropriate service, or will provide general advice. This would include referrals to Adult Community Health Teams, alcohol and drug services and disability services.

...

2. REFERRAL BY MENTAL HEALTH SERVICES TO POLICE

2.1 Urgent Referrals to Police

Urgent situations are those where MHS believe that police attendance is required immediately and include episodes in the community, health centres, the Psychiatric Unit and MHS hostels where it is believed a person's behaviour could lead to harm or injury and assistance in containing the behaviour or transport to hospital is necessary.

The process for urgent referrals to police by MHS is as follows:

(i) contact Police Communications direct on 11444 (or 000 if the matter is immediately life-threatening);

(ii) inform the operator that urgent assistance is required - provide full details of situation;

(iii) provide full details of current problem including the presence of weapons/alcohol/drugs etc, or a known history;

(iv) provide all available details concerning the person subject to the attention which would enable police to more accurately determine the nature of the situation including the presence of any other person/s;

(v) provide any other available background information which may assist police to make decisions on how to best manage the situation; and

(vi) when a Mental Health Tribunal Apprehension Order is issued, police will contact the Mental Health Triage Service. Where ever possible a CATS [Crisis Assessment and Treatment Services]/Regional Team worker will attend.

Police will determine the urgency of the request and will determine an appropriate response. Police will determine an ETA based on their operational commitments and priorities which will be communicated to the MHS making the request.

2.2 Responsibilities Where Police Have Been Called for Urgent Assistance

Where police assistance has been sought because of physical danger to the person or to others, police will take responsibility for ensuring physical safety of all people at the scene. Police shall make decisions about timing and the degree of force to be used and the deployment of police and MHS while the situation is secured. Prior to any action and unless inappropriate because of extremely urgent situations, police will consult with MHS for advice on the situation and the likely responses and behaviour which will affect the police action taken.

...

3. JOINT MANAGEMENT OF INCIDENTS

...

3.1 Emergency Detention Pursuant to the Mental Health (Treatment and Care) Act 1994

Appendix B: Section 37 Mental Health (Treatment and Care) Act 1994

Section 37 Mental Health (Treatment and Care) Act 1994 prescribes the legislative authority for a police officer, doctor or mental health officer to take a person suffering from a mental dysfunction to an approved health facility where it is believed on reasonable grounds that:

(a) a person is suffering from a mental dysfunction (as defined in appendix A) and, as a consequence requires immediate treatment or care;

(b) the person has refused to receive that treatment and care; and

(c) detention is necessary for the person's own health or safety or for the protection of members of the public.

The doctor or mental health officer should also consider S37(2)(d) which requires that;

(d) Adequate treatment or care cannot be provided in a less restrictive environment.

Section 37(3)(a) provides for a police officer, doctor or mental health officer to use such force and assistance as necessary and reasonable to apprehend the person in order to convey him/her to the facility.

Section 37(3)(b) provides that if there are reasonable grounds for believing that the person is at certain premises, a police officer, doctor or mental health officer may enter those premises using such force and with such assistance as is necessary and reasonable.

In cases where police exercise the emergency provisions of the Act, it is desirable for the CATS to be present to assist in the management of the situation. It is recognised that time and resource constraints may limit this assistance.

...

3.2 High Risk situations Involving the Police Negotiation Team

In high-risk situations, the Police Negotiation Team (PNT), Special Operations Team (SOT) or the CMO [Commonwealth Medical Officer] may be utilised. CATS may be requested to assist in providing qualified opinion in relation to the situation.

In such situations, police will provide as much information as possible at the time of the referral. In addition to an overview of the situation, the following matters shall be addressed by police when making the request for CATS assistance;

(i) the procedure for gaining access to the incident scene;

(ii) the police officer in charge at the scene to whom they are to report; and

(iii) the role they are expected to perform.

If the PNT are at the scene, they shall be responsible for decisions concerning the management of the incident.

...

3.3. Training

MHS and Adult Teams, CATS and Child and Adolescent Mental Health Service are available to have input into AFP training on mental health issues. The role of AFP officers will be included in MHS training orientation programs. CATS and AFP are to have a joint training workshop to review how the management of people suffering from a mental dysfunction was undertaken by both services.

3.4 AFP/Mental Health Services Liaison Officers

To facilitate ease of contact, AFP - ACT Policing shall appoint a Mental Health Liaison Officer at each patrol and within the Police Negotiation Team.

Appendix D: AFP Mental Health Liaison Officers

Contact with Mental Health Services shall be through MHTS.

APPENDIX A

INDICATORS FOR CONSULTATION WITH MENTAL HEALTH SERVICES

The following indicators are to be used as a guide, rather than to confirm the presence of mental illness. If the situation you are confronted by included one or more of these indicators, it would be useful to consult with the Psychiatric Service for advice on options available to manage the situation.

DOES THE PERSON EXHIBIT ANY OF THE FOLLOWING?

[645]

And on that journey from the time you left the briefing you didn't make any plan with Glen as to what you were going to do if you found the person, did you?---No, you can't plan for every contingency.

Well, you didn't try to, did you?---No, I - well, our plan was still, as stated previously, was in the first instance just to locate him, so we knew where he was.

Yes, but for example you didn't say to Glen or he say to you anything like 'If we find him you do the talking'?---No. I - - -

That would have been a good idea, wouldn't it?---Not necessarily. Sometimes - part of the training we've received in Mental Health training is that people with a mental dysfunction may respond better to one person than another. We didn't know in what circumstances we'd find, we didn't know if it'd be a case of right next to him in the street or, you know, if he'd been in a yard on my side of the car I would have got there first and would have naturally started speaking to him first. As it turns out he was - he was - went to Glen's side of the car first. If it had been a negotiated situation and we'd had time to talk and - and things weren't working with - with Glen talking to Mr Crowley I may have attempted to speak to him, and vice versa. We've got all the guidelines in the world as to how to do our job, the reality is a lot of it is reactive. You can't engage the - the handbook, so to speak, until you know exactly what you were dealing with. At that time we knew we were dealing with a person with a mental dysfunction. How it's actually panned - things would pan out and what would be the best approach we didn't know. We couldn't possibly know.

One of the possibilities that certainly was in your mind was this, wasn't it? That if you found him and approached him he might bolt, run away from you?---Yes. ...

And you didn't have any discussion with Glen about what you'd do if that happened, did you?---Well, again that's not something that really requires discussion. We would have run after him and Glen would have radioed in our location on the portable police radio, rather than the car radio.

[675]

Potential existence of [liability in negligence] may in many instances be in the general public interest, as tending towards the observance of a higher standard of care in the carrying on of various different types of activity. I do not, however, consider that this can be said of police activities. The general sense of public duty which motivates police forces is unlikely to be appreciably reinforced by the imposition of such liability so far as concerns their function in the investigation and suppression of crime. From time to time they make mistakes in the exercise of that function, but it is not to be doubted that they apply their best endeavours to the performance of it. In some instances the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind. The possibility of this happening in relation to the investigative operations of the police cannot be excluded. Further it would be reasonable to expect that if potential liability were to be imposed it would be not uncommon for actions to be raised against police forces on the ground that they had failed to catch some criminal as soon as they might have done, with the result that he went on to commit further crimes. While some such actions might involve allegations of a simple and straightforward type of failure - for example that a police officer negligently tripped and fell while pursuing a burglar - others would be likely to enter deeply into the general nature of a police investigation, as indeed the present action would seek to do. The manner of conduct of such an investigation must necessarily involve a variety of decisions to be made on matters of policy and discretion, for example as to which particular line of inquiry is most advantageously to be pursued and what is the most advantageous way to deploy the available resources. Many such decisions would not be regarded by the courts as appropriate to be called in question, yet elaborate investigation of the facts might be necessary to ascertain whether or not this was so. A great deal of police time, trouble and expense might be expected to have to be put into the preparation of the defence to the action and the attendance of witnesses at the trial. The result would be a significant diversion of police manpower and attention from their most important function, that of the suppression of crime. Closed investigations would require to be reopened and retraversed, not with the object of bringing any criminal to justice but to ascertain whether or not they had been competently conducted.

[1339]

37 Apprehension

(1) If a police officer has reasonable grounds for believing that a person is mentally dysfunctional or mentally ill and has attempted or is likely to attempt -

(a) to commit suicide; or

(b) to inflict serious harm on himself or herself or another person;

the police officer may apprehend the person and take him or her to an approved health facility.

(2) Where a doctor or mental health officer believes on reasonable grounds that -

(a) a person is mentally dysfunctional or mentally ill and -

(i) as a consequence, requires immediate treatment or care; or

(ii) in the opinion of the doctor or mental health officer, the person's condition will deteriorate within 3 days to such an extent that the person would require immediate treatment or care;

(b) the person has refused to receive that treatment or care; and

(c) detention is necessary for the person's own health or safety, social or financial wellbeing, or for the protection of members of the public; and

(d) adequate treatment or care 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 facility.

(2A) The tribunal shall, on application, review the decision of a doctor or mental health officer under subsection (2)(a)(ii) within 2 working days of the date of receipt of the application.

(3) For the purposes of subsections (1) and (2), a police officer, doctor or mental health officer -

(a) may use such force and assistance as is necessary and reasonable to apprehend the person and take him or her to the facility; and

(b) if there are reasonable grounds for believing that the person is at certain premises - may enter those premises using such force and with such assistance as is necessary and reasonable.

38 Detention

(1) Where a person is taken to an approved health facility under ... section 37 ... the person in charge of the facility shall detain the person at the facility and while the person is so detained -

(a) may keep the person in such custody as the person in charge thinks appropriate; and

(b) may subject the person to such confinement as is necessary and reasonable -

(i) to prevent the person from causing harm to himself or herself or to another person; or

(ii) to ensure that the person remains in custody; and

(c) may subject the person to such restraint (other than confinement) as is necessary and reasonable -

(i) to prevent the person from causing harm to himself or herself or to another person; or

(ii) to ensure that the person remains in custody.

(2) If a doctor or mental health officer believes on reasonable grounds that a person who has voluntarily attended an approved health facility is a person to whom section 37(2)(a) to (d) apply, the doctor or mental health officer may detain the person at the facility and, while the person is so detained, the person in charge of the facility may exercise the powers mentioned in subsection (1)(a) to (c) in relation to the person detained.

At a glance

Court

Decision date

Source

Judgment (1640 paragraphs)

Crowley v Commonwealth of Australia, Australian Capital Territory and Pitkethly [2011] ACTSC 89 (27 May 2011)

Parties

Legislation Cited (30)

Cases Cited (20)