Mental health welfare checks are one of the most common reasons police attend residential properties across New South Wales. In many cases, they are lifesaving. But they also represent a situation where the legal boundaries of police power are frequently misunderstood, and sometimes crossed.
When police act outside the authority the law grants them, the legal consequences can be significant, both for the person they are attending and for the validity of any charges that follow.
What The Law Actually Authorises
Police powers during mental health welfare checks are not unlimited. They are primarily governed by the Mental Health Act 2007 (NSW), which sets out specific conditions that must be met before a person can be lawfully detained for a mental health assessment.
Under section 20 of the Mental Health Act, police may apprehend a person and take them to a mental health facility, but only where certain preconditions are satisfied. Critically, where an ambulance officer or medical practitioner is present and has determined that a person needs to be taken for assessment, police may assist with that process. However, the law does not give police a freestanding power to physically restrain a person simply because they appear distressed or because a third party has raised a concern about their welfare.
The NSW Mental Health Act operates alongside, and in some circumstances overrides, the more general provisions of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), commonly known as LEPRA. Where a specific statutory regime like the Mental Health Act governs a situation, police cannot simply fall back on general policing powers to justify their conduct.
The Problem Of Premature Use Of Force
In practice, the sequence of events during a welfare check matters enormously. The law requires that the mental health assessment and scheduling process be initiated by an authorised person before police use force to detain someone. When officers physically restrain a person before that process has occurred, they may be acting without lawful authority.
This is not a technical loophole. It reflects a deliberate legislative design. The NSW Mental Health Commission and health authorities have consistently emphasised that responses to mental health crises should be led by health professionals, with police playing a supporting role where necessary. The law reflects that principle.
Restraining a distressed person before the health-led process has been properly initiated is not just a policy concern, it may render the detention, and any use of force associated with it, unlawful.
Read our successful Criminal Case Studies.
*We always change details in our case studies to protect client confidentiality.
What This Means For Assault Police Charges
The offence of assaulting police under section 60 of the Crimes Act 1900 (NSW) requires the prosecution to prove not only that the accused assaulted an officer, but that the officer was acting in the lawful execution of their duty at the time. If police were not lawfully authorised to use force, that element of the offence cannot be established.
This is precisely the issue that arose in a recent case successfully defended by our team. A client charged with two counts of assault police following a welfare check at her home had the charges dismissed at Hornsby Local Court, after the Magistrate found that police had restrained her before any lawful mental health detention had been initiated and without any authorised person having requested police assistance. Both charges were dismissed because the prosecution could not prove that officers were acting in the lawful execution of their duty.
Read the full case study here.
If You Have Been Charged Following a Welfare Check
Being charged with assault police following a mental health welfare check does not mean a conviction is inevitable. Whether police were acting lawfully at the time is a factual and legal question that must be properly examined. The sequence of events, what was said, who was present, and whether the correct authorisation had been obtained can all be critical.
If you or someone you know has been charged with assault police arising from a welfare check or mental health-related attendance, early legal advice is essential.
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