Police Detention of People who Appear to be Mentally Ill or Mentally Disturbed

New South Wales v Talovic [2014] NSWCA 333

Background

Mr Talovic complained to his insurer after a late workers compensation payment and stated words to the effect of ‘you guys are sending people on the streets and letting them just die’. This prompted the insurance officer to believe that Mr Talovic was threatening to kill himself. Police were contacted and police officers attended Mr Talovic’s residence.

Mr Talovic was in bed in his Concord apartment when he was awoken by two police officers knocking on his door. The police officers advised him that they had come simply to check up on his welfare; however the police officers stayed in the apartment for over 30 minutes. After speaking to Mr Talovic and searching his apartment, they took him into custody and arranged for him to be taken to Concord Hospital for mental examination. Mr Talovic was then allowed to return home after the examination.

District Court Proceedings

Mr Talovic believed that by the police taking him into custody and transporting him to the hospital, this constituted unlawful imprisonment and the action of the police officers searching his apartment was trespass to land. The police relied on the Mental Health Act 2007 (NSW) s 22 and argued they had a duty of care to ensure that Mr Talovic did not harm himself.

The primary judge accepted that Mr Talovic had consented to the police entering his apartment but this consent did not include the right to search his apartment, therefore resulting in trespass to land. Furthermore the judge concluded that the conveying of Mr Talovic to the mental health facility at Concord Hospital constituted false imprisonment.

The primary judge awarded Mr Talovic damages to the amount of $85,000 comprising of $5,000.00 for trespass of land, $30,000.00 for false imprisonment and $50,000.00 for exemplary damages.

Court of Appeal

The State sought leave to appeal to the Court of Appeal against the finding of liability and the quantum of damages. Leave was required in circumstances where the amount in issue was less than $100,000.00.

His Honour Emmett JA held that for the power under s 22 to be validly exercised, two prerequisites must be met:

• The person must appear to be mentally ill or mentally disturbed at the time they are found by the police officer; and
• The police officer must believe on reasonable grounds that:

1. It is probable that the person will attempt to kill himself or cause serious physical harm to himself; and
2. It would be beneficial for the person’s welfare to be dealt with by the act rather than in accordance with the law.

In relation to the first prerequisite, his Honour held that the question of whether a person appears to be mentally ill or mentally disturbed requires a subjective test considering the relevant police officer’s state of mind. The question does not require reasonable grounds for the belief. The primary judge had erred in determining that the question of whether a person appears to be mentally ill or mentally disturbed is according to a person in the position of the relevant police officer at the relevant time, rather than the police officer who was present at the time.

In relation to the second prerequisite, there is an objective test. If the first prerequisite is met, the power to apprehend under s 22 does not arise unless the police officer also believes, on reasonable grounds, that:

1. The person is committing an offence; or
2. The person has recently committed an offence; or
3. The person has recently attempted to kill himself or herself; or
4. It is probable that the person will attempt to:
   1. Kill himself or herself;
   2. Kill any other person;
   3. Cause serious harm to himself or herself; or
   4. Cause serious harm to any other person; and

It would be beneficial to the person’s welfare to be dealt with in accordance with the Act, rather than otherwise in accordance with law.

His Honour Emmett JA stated that it is ‘irrelevant that an emergency situation was not involved’ and that it must be possible for the power to have application in situations where there is no emergency. It was held that the police officer had reasonable grounds to hold the belief that Mr Talovic would kill himself.

His Honour Basten JA agreed with Emmett JA in that the first prerequisite requires a subjective test and the second prerequisite requires an objective test.

His Honour Tobias AJA placed emphasis on the word “will” in s 22 (2)(a) setting out that an officer must believe that the person will attempt to kill himself or herself not simply believing that he or she ‘might’, ‘may’ or ‘could’ kill themselves.

Conclusion

For the police to exercise a power under s 22, the following questions must be asked:

1. Does the police officer hold a genuine belief that the person is mentally ill or mentally disturbed?
2. If so, does the police officer have reasonable grounds for believing the person is committing or has recently committed an offence, has recently attempted to kill himself or herself, or it is probable that the person will attempt to kill himself, herself or any other person, or will attempt to cause serious harm to himself, herself or any other person?
3. If so, does the police officer have reasonable grounds for believing it would be beneficial to the person’s welfare to be dealt with in accordance with the Act, rather than otherwise in accordance with the law?