Tuesday, February 07, 2006


Analysis of stautory powers in s.122B to take, retake, detain, and enter premises


MENTAL HEALTH ( COMPULSORY ASSESSMENT AND TREATMENT) ACT 1992 ENFORCEMENT AND OFFENCES - PART 10




122B. Use of force


(1)A person exercising a power specified in subsection (2) may, if he or she is exercising the power in an emergency, use such force as is reasonably necessary in the circumstances.

(2)The powers are—

(a)A power to take or retake a person, proposed patient, or patient in any of sections 32(1), 38(4)(d), 40(2), 41(4), 41(5), 41(6), 50(4), 51(3), 53, 109(1), 109(4), 110C(2), 111(2), or 113A:

(b)A power to detain a person, proposed patient, or patient in any of sections 41(3), 41(4), 41(5), 109(4), 110C(2), 111(2), or 113:

(c)A power to enter premises in either of sections 41(2) or 110C(1).

(3)A person treating a patient to whom [[section 58 or]] section 59 applies may use such force as is reasonably necessary in the circumstances.

(4)If force has been used under this section,—

(a)The circumstances in which the force was used must be recorded as soon as practicable; and

(b)A copy of the record must be given to the Director of Area Mental Health Services as soon as practicable.]



Analysis of section 122B is as follows:


s.122B (1) A person exercising a power specified in subsection (2) may, if he or she is exercising the power in an emergency, use such force as is reasonably necessary in the circumstances.




122B(2)(a) - The powers are powers to take or retake a person, 'proposed patient' (s.2A MHA), or 'patient' (s.2), in any of the following sections -

32(1) - in an emergency, any person may use reasonably neccesary force to retake a patient who is subject to an inpatient order and absent without leave ( ss.30, 31, & 34 Crimes Act 1961 apply, as if they were a power of arrest (s.122A(a)) and with any necessary modifications ( s.122A(b) MHA).

38(4)(d) – in an emergency, a 'Duly Authorised Officer' ( s.2 MHA) may use reasonably necessay force to take a person to a medical practitioner ( ss.30, 31, & 34 C.A. apply , as above).

40(2) – in an emergency, a DAO may use reasonably necessary force to take a patient to a place where they are required to attend (ss.30, 31, & 34 C.A. apply, as above).

41(4) – in an emergency, police who have entered premises, may use reasonably necessary force to take person to medical examination and detain them at that place ( ss.30, 31, & 34, C.A. apply, as above).

41(5) – in an emergency, police, who have entered premises, may use reasonably necessary force for the purposes of s.40(2)(a)to take the proposed patient or patient to a place they are required to attend and detain them there ( ss.30, 31, 34, C.A. apply).

41(6) – in an emergency, police , who have entered premises under s.41(2), may use reasonably necessary force to take patient back to hospital ( ss.310, 31, 34, C.A. apply).

50(4) – in an emergency, any case to which s. 53(3) applies, a 'Director', 'Director of Area Mental Health Services', DAO ( see s.2 MHA), police, or person entrusted with charge of patient during leave may use reasonably necessary force to take patient to a specified hospital ( ss. 30, 31, 34, C.A. apply).

51(3) – in an emergency, a Director, D.A.M.H.S., DAO, police, or person entrusted with charge of the patient may use reasonably necessary force to retake 'special patient' (s.2) to hospital ( ss.30, 31, 34, C.A. apply).

53 – in an emergency, a Director, D.A.M.H.S., DAO, police, or person entrusted with charge of the patient, may use reasonably necessary force to retake a special patient escaped or absent without leave ( ss.30, 31, 34 C.A. apply).

109(1) – in an emergency, police may use reasonably necessary force to apprehend a person appearing to be 'mentally disordered' (s.2) in a public place ( ss.30, 31, 34, C.A. apply).

109(4) – in an emergency, and subject to s.109(3), police may use reasonably necessary force to continue to detain a proposed patient for assessment etc. ( ss.30, 31, 34, C.A. apply).

110C(2) – in an emergency, police who have entered under s. 110C(1), may use reasonably necessary force and at the request of a medical practitioner detain a person or proposed patient etc. ( ss.30, 31, 34, C.A. apply).

111(2) - in an emergency, a registered nurse may use reasonably necessary force to keep a person where they are - until a medical practitioner examines them ( ss.30, 31, 34, C.A. apply).

113A - police ( s.122B MHA & ss.30, 31, 34, C.A. apply to whole of s.113A).




122B(2)(b) – A power to detain a person, proposed patient, or patient , in any of the following sections -

41(3) – in an emergency, police , who have entered premises under s.41(2), may use such force as is reasonably necessary to detain a person ( ss. 30,31,34, C.A, do not apply here).

41(4) – in an emergency, police who have entered premises under s. 41(2), for the purposes of s. 38(4)(d), may use reasonably necessary force to take the person to a medical examination and detain them ( ss. 30,31.34, C.A, apply ).

41(5) – in an emergency, police , who have entered under s.41(2), may, for the purposes of s.40(2)(a), use reasonably necessary force to take a proposed patient or patient to a place they are required to attend and detain them there ( ss. 30, 31, 34, C.A. apply).

109(4) – in an emergency, subject to section 109(5), police may use reasonably necessary force to continue to detain a proposed patient until an assessment examination is conducted ( ss. 30, 31, 34 C.A. apply).

110C(2) – in an emergency, police , who have entered under s. 110C(1), may use reasonably necessary force, and may, at the request of a medical practitioner, detain a person or proposed patient ( ss. 30,31, 34 C.A. apply).

111(2) – in an emergency, subject to s.111(3), a registered nurse may use reasonably necessary force to detain a person where they are - until a medical practitioner has examined them ( ss.30,31,34, C.A. apply).

113 – in an emergency, a person in charge of a hospital may use reasonably necessary force to admit and detain a proposed patient etc. ( ss.30,31, 34 C.A. do not apply).




122B(2)(c) – a power to enter premises is conferred on police in either of the following two sections -


41(2) – in an emergency, police, called to the assistance of a DAO, may use reasonably necessary force to enter premises for the purposes described in s.38(4)(b) or (d) or s.40(2), and may enter premises where a person, proposed patient, or patient is etc. ( ss. 30,31,34 C.A. do not apply).

110C(1) – in an emergency, police, who have been called to assist a medical practitioner under s.110(4) or s.110A(5) or s.110B(4) , may use reasonably necessary force to enter the premises where a person or proposed patient is etc. ( ss. 30,31,34, C.A. do not apply).




Statutory authority to arrest or detain a mentally disordered person under the criminal law

Generally, any so - called mentally disordered person may be arrested by warrant, yet this takes time. The police can arrest without warrant any mentally disordered person reasonably suspected of having committed an offence punishable by imprisonment (see s.315 (2) Crimes Act 1961). Many offences carry a penalty of imprisonment, for example, disorderly behaviour (s.3 Summary Offences Act 1981) or common assault (s.9 S.O.A.) or wilful damage to other people's property (s.11 S.O.A.).

Police may also conduct a warrantless arrest when there is 'good cause to suspect' a person has committed a breach of the peace ( s.315(2) Crimes Act).

All of these powers under the criminal law do not cease to operate just because the person is considered to be mentally disordered at the time. Provided the standard governing the arrest was satisfied and the discretion ( eg. '...may arrest...' ) is properly exercised the arrest does not become unlawful because the person is later aquitted at trial or succeeds with a plea of insanity.

After the arrest of a possibly mentally disordered person the police may, as a matter of prosecutorial discretion, drop charges against the person. Or the police may call a DAO or doctor to commence the compulsory assessment process, or the person may be brought before a Court and the Judge may order that the person be remanded to a hospital for assessment ( eg. Person remanded under s.38 Criminal Procedure ( Mentally Impaired Persons )Act 2003 for psychiatric examination). Section 30 of that Act sets out the duration of detention where a defendant has been found unfit to stand trial;


Criminal Procedure (Mentally Impaired Persons) Act 2003
Part 2 Substantive provisions (s 7 to s 46)



30 Duration of detention as special patient or special care recipient where person unfit to stand trial

(1)The maximum period for which a defendant who has been found unfit to stand trial can be detained under section 24 as a special patient or a special care recipient is—

(a)10 years from the date of the making of the order under section 24 if the defendant was charged with an offence that was punishable by imprisonment for life; or

(b)if paragraph (a) does not apply, a period from the date of the order under section 24 equal to half the maximum term of imprisonment to which the defendant would have been liable if he or she had been convicted of the offence charged.

(2)If the defendant was charged with more than 1 offence, the relevant offence for the purposes of subsection (1)(b) is the offence punishable by the longest term of imprisonment.

(3)An order under section 24 in respect of a defendant who has been found unfit to stand trial continues in force during the maximum period specified in subsection (1) until—

(a)the defendant is brought before a court in accordance with a direction given under section 31; or

(b)a direction is given, under section 31, that the defendant be held as a patient or as a care recipient.

(4)Subsection (3) is subject to sections 84 and 128 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 or to section 105 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, as the case may require.

(5)An order under section 24 is to be treated as cancelled if every charge brought against the defendant in the proceedings in which the order was made is withdrawn or dismissed.

Compare: 1985 No 120 s
116(1)-(3)


Note the wording in subsection (1)(b); '... half the maximum term of imprisonment to which the defendant would have been liable if he or she had been convicted of the offence charged.' Here, the statutory presumption in section 25(c) of the Bill of Rights Act may be relevant, it states; ' The right to be presumed innocent until proved guilty according to law.'




Powers of detention arising under various other statutes

Other statutes also provide authority to detain in mental health situations. Some of these powers exist with or without a Court order.

Order under Criminal Procedure (Mentally Impaired Persons) Act 2003

Order under Summary Proceedings Act 1957 s.171(2) ( District Court may make order that defendant be detained in hospital : s.171(2)(a)&(b)).

Order for detention of aged and infirm etc. under s.126 of the Health Act 1956.

Order under parens patriae jurisdiction of the High Court : s 17 Judicature Act 1908.

Order for treatment under Protection for Personal and Property Rights Act 1988.

see further; Dawson J The Law of Emergency Psychiatric Detention [1999] NZ Law Review 275.



Justifications and excuses under the Crimes Act 1961

See Part III of the Crimes Act 1961 and section 20. Part III of that Act deals with matters of justification and excuse. A number of it's provisions expressly justify the use of reasonble force against a person, this would include a so - called mentally disordered person. See s.48, self - defence. If the use of force against the mentally disordered person was "justified" (see s.2 Crimes Act defintion) then the user of that force is not guilty of the offence and not liable to any civil liability. See further; Adams on Criminal Law 2001 3rd. Edn. Brookers at p.37; & also common law defences such as necessity.



Application of NZBORA to statutory powers of arrest or detention

As a general rule the Bill of Rights Act would apply to any person who exercises any statutory power. Therefore it is relevant to almost the entire discussion above. Click this link for Bill of Rights Act -

http://www.oefre.unibe.ch/law/icl/nz01000_.html

Some of the crucial sections dealing with arrest or detention in the Bill of Rights are as follows;


23(1)(a) – Everyone arrested or detained under any enactment must be informed at the time of arrest or detention for the reason for it.

23(1)(b) – Everyone arrested or detained under any enactment shall have the right to consult and instruct a lawyer without delay and to be informed of that right.

23(5) – Everyone deprived of liberty shall be treated with humanity and respect for the inherent dignity of the person.



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