Liability for Failure by Police to Detain Potentially Suicidal and Dangerous Persons

Abstract

The author scrutinises the ramifications of the important decision by the majority of the Victorian Court of Appeal in Kirkland-Veenstra v Stuart [2008] VSCA 32 against the backdrop of the New South Wales Court of Appeal decision in Hunter Area Health Service v Presland [2005] NSWCA 33. He argues that in principle the imposition of civil liability upon police officers who fail to take a potentially suicidal or dangerous person pursuant to their statutory powers for examination or assessment is an appropriate accountability mechanism likely to improve the quality of policing in the public interest.

Key words:

• civil liability
• civil liberties
• dangerousness
• mental illness
• police accountability
• policing discretion
• psychiatric injuries
• s 10 of the Mental Health Act 1986 (Vic)
• suicidality

Notes

1. Similarly, under s 22 of the Mental Health Act 2007 (NSW): (1) A police officer who, in any place, finds a person who appears to be mentally ill or mentally disturbed may apprehend the person and take the person to a declared mental health facility if the officer believes on reasonable grounds that: (a) the person is committing or has recently committed an offence or that the person has recently attempted to kill himself or herself or that it is probable that the person will attempt to kill himself or herself or any other person or attempt to cause serious physical harm to himself or herself or any other person, and (b) it would be beneficial to the person's welfare to be dealt with in accordance with this Act, rather than otherwise in accordance with law. (2) A police officer may apprehend a person under this section without a warrant and may exercise any powers conferred by section 81 on a person who is authorised under that section to take a person to a mental health facility or another health facility.

2. It is likely that in the future the s 9 right to life under the Charter of Human Rights and Responsibilities Act 2005 (Vic) will be held quite liberally to trump the s 12 (freedom of movement), s 13 (privacy) and s 21 (liberty and security of the person) rights in such circumstances.