- In NSW v Talovic  NSWCA 333 the Court of Appeal reviewed the application of the power in s 22 of the Mental Health Act 2007 (NSW) for police to take persons who appear to them to be mentally ill or disturbed to a mental health facility for psychiatric assessment.
- Whether a person appears to a police officer to be mentally ill or disturbed is assessed purely on the subjective belief of that officer at the time. That belief need not be based on reasonable grounds.
- However, the officer must also form the view, on reasonable grounds, that the person has committed or is about to commit an offence, has recently attempted to kill or seriously harm themselves or another, or it is probable that the person will attempt to do so.
The Court of Appeal judgment of State of New South Wales v Talovic  NSWCA 333 concerns an important, but rarely scrutinised, provision of the Mental Health Act 2007 (NSW) (Act) which empowers police in New South Wales to apprehend persons who appear to be mentally ill or mentally disturbed and convey them to a declared mental health facility for psychiatric assessment.
Exercising the power, found in s 22 of the Act, skirts the fine line between the ‘paternalistic treatment model’ and the ‘due process model strictly protective of individual rights’ (per Emmett JA at ), two competing models that have shaped mental health laws in New South Wales over decades.
The leading judgment of Emmett JA emphasises the need for Courts to be ‘vigilant against misuse or excessive use’ of powers of this sort and to ensure intrusion into an individual’s liberty by the State be justified only on the very clearest of terms (at ).
The prevalence of New South Wales police invoking the power under s 22 is not insignificant. In 2009 there were 22,234 involuntary admissions to New South Wales mental health facilities by police relying on s 22.
While separate judgments were delivered by Basten JA, Emmett JA and Tobias AJA, the appeal by the State of New South Wales against a District Court judgment in favour of Mr Josip Talovic, awarding him damages of $85,000 for false imprisonment and trespass to land, was allowed (at least, in part) by all three judges. The appeal judgments traverse appeal points concerning the denial of procedural fairness, trespass to land and exemplary damages.
One central matter explored in each of the judgments, and the focus of this article, is the construction and scope of the power under s 22 of the Act to identify, restrain and then confine persons who appear to police to be mentally ill or mentally disturbed.