What legal protections are available to paramedics to prevent suicide? A review of case law concerning Section 41 of the Crimes Act 1961 (New Zealand)

Suicide remains a leading cause of death in New Zealand, putting substantial pressure on emergency services to effectively respond to crises.¹ Mental health emergencies carry a considerable societal and individual burden, and paramedics are often the first healthcare professionals on scene. In New Zealand, paramedics, like all citizens, operate under a general duty of care to prevent harm, and a key legal tool for intervention in such situations is Section 41 of the Crimes Act 1961. This section provides a legal justification for the use of force to prevent suicide or serious harm, stating:

“Everyone is justified in using such force as may be reasonably necessary in order to prevent the commission of suicide, or the commission of an offence which would be likely to cause immediate and serious injury to the person or property of any one, or in order to prevent any act being done which he or she believes, on reasonable grounds, would, if committed, amount to suicide or to any such offence.”²

This provision has become even more important for paramedics due to a major policy shift: from November 2024, New Zealand Police began phasing in higher thresholds for mental health callouts, prioritising events involving immediate risk to life and safety and directing lower-threshold events to more appropriate services.³ This shift, driven by a “right person, right care” model,⁴ aims to provide health-led interventions for those in mental health emergencies. However, it also places a substantial burden on paramedics, who are increasingly the primary responders to acute mental health events, often without direct police support or explicit legal authority.

Unlike police or designated mental health clinicians, paramedics lack explicit powers under the Mental Health (Compulsory Assessment and Treatment) Act 1992 (MHA) to detain or compel individuals for assessment or treatment. The MHA grants specific powers to other health professionals (e.g., psychiatrists, medical practitioners) and police (under Section 109) for compulsory assessment and treatment. Paramedics, however, are not designated under this Act, leaving Section 41 as their primary legal protection when intervening with force. The application of Section 41 during complex, rapidly evolving pre-hospital mental health emergencies is characterised by significant legal ambiguity. This ambiguity stems from multiple sources: a paucity of case law (only 20 cases substantively interpreting Section 41 over 37 years), widespread misunderstanding of the scope of legislation across all professions (including psychiatrists, lawyers and police) and frequent real-world scenarios where Section 41’s applicability is unclear (e.g., serious but non-immediate threats, patients with apparent capacity, situations where emergency teams are unavailable and police decline involvement). This creates a significant gap, leaving paramedics vulnerable to legal and ethical dilemmas, especially regarding patient autonomy and restrictive practices.

This paper critically evaluates the practical application and limitations of Section 41 of the Crimes Act 1961 through a comprehensive analysis of New Zealand case law. By systematically examining how courts interpret “reasonably necessary” force, we aim to:

1.      illuminate legal and ethical complexities for paramedics in mental health emergency intervention;

2.      identify criteria and boundaries for justifiable force under Section 41;

3.      provide evidence-based recommendations for policy, training and legislative reform to support paramedics in their expanding role.

Methods

We conducted a qualitative study involving a systematic search and thematic analysis of New Zealand legal cases. We searched the Westlaw database for all reported and unreported New Zealand legal cases citing Section 41 of the Crimes Act 1961 (1986–2023). This yielded 20 relevant cases from 1986 to 2023. Cases were included if Section 41 was central to the legal reasoning or as a justification; cases where Section 41 was merely cited in passing without substantive discussion were excluded. The overall structure of the study is summarised in Figure 1.

We analysed the full texts of these cases to extract key legal principles, factual contexts and judicial reasoning. Our analysis focussed on four primary themes, which emerged from the case law and were refined through peer-review feedback:

1.      The threshold for intervention: immediacy and lawfulness; legal grounds for initial force.

2.      The role of alternatives and de-escalation: how less-restrictive options influence reasonableness.

3.      Proportionality and excessive force: cases where force was disproportionate.

4.      Patient autonomy vs the duty to intervene: conflict between self-determination and preventing self-harm.

Each case was reviewed to identify the operative facts, the specific force used, the court’s reasoning for its decision and the direct relevance of the ruling to paramedic practice. This detailed thematic analysis forms the basis of the results. The conceptual relationships underpinning Section 41 are illustrated in Figure 2.

Results

Our analysis of the 20 cases shows that Section 41 is applied in a highly contextual and often narrow way. Although no cases directly involved paramedics, the principles from cases involving police, nurses and civilians offer an analogous framework. These cases define the boundaries of “reasonable force” and highlight critical considerations for front-line healthcare providers. A summary of key judicial interpretations is presented in Table 1.

Theme 1—the threshold for intervention

Courts consistently rule that Section 41 can only be used to prevent immediate and unlawful harm. This foundational principle is important for understanding when Section 41 can provide a justification for force, particularly where actions might otherwise be considered assault. Section 41 offers a justification for an act that would otherwise be a criminal offence (e.g., assault); it does not impose a positive duty to intervene.

This is evident in cases where individuals tried to justify their actions on moral or ethical grounds, rather than a legal basis. For instance, in a series of cases involving anti-abortion protestors trespassing at medical clinics (Bayer v Police [1991], Wilcox v Police [1993]), the courts firmly rejected the argument that Section 41 justified their actions.^5,6 The reasoning was twofold: first, the act (a lawful abortion) was not unlawful, and second, the court in Wilcox clarified that an unborn child is not legally considered a “person” under the Act. This sets a salient boundary: Section 41 cannot be used to interfere with lawful medical procedures or to impose moral judgments. The harm prevented should be a legally recognised harm, like suicide or an offence causing serious injury, not a lawful act.

Conversely, courts have justified intervention when there is a reasonable belief of imminent self-harm. In R v Kissling (2005), an officer’s “jaw grab” to prevent swallowing suspected methamphetamine was reasonable and necessary to prevent airway obstruction or overdose.⁷ Similarly in R v Roulston (1998), the belief of harm should be reasonable, but certainty is not required.⁸ The phrase “believes, on reasonable grounds” in Section 41 (1) combines a subjective belief with an objective test (reasonable grounds), like the mens rea requirement in criminal law. For paramedics, intervention to prevent ingestion of harmful substances or physical self-harm may be justifiable under Section 41, provided the belief of harm is genuinely held and reasonable. The focus is on preventing the act that would lead to harm.

Theme 2—the role of alternatives and de-escalation

A key finding for paramedics is that force is often deemed reasonable only if less-restrictive alternatives were available and attempted. This aligns with the least restrictive environment principle, a cornerstone of modern mental health law. Failure to de-escalate or explore other options is a recurring theme in cases where force has been deemed unreasonable, even with protective intent.

The case illustrating this is Re Shepherd (2010), a Health Practitioners Disciplinary Tribunal decision involving a registered nurse in an acute mental health unit.⁹ The nurse, Mr Shepherd, observed a large, agitated patient with a known history of violence verbally threatening a female colleague. Without warning, Mr Shepherd approached the patient from behind and applied a “bear hug” to move him away. This led to a struggle where the patient kneed the nurse, who then struck the patient’s face in self-defence. The Tribunal made an important distinction: the initial “bear hug” was deemed unreasonable. Not because of the minimal force, but because the nurse failed to attempt readily available alternatives. He did not use his personal alarm, call out to the patient to distract or de-escalate, or ask his colleague to move away. The surprise, from-behind physical approach was deemed unsafe and unnecessarily provocative, almost certain to provoke an adverse reaction from an unwell patient. In contrast, the subsequent jab to the face was deemed reasonable self-defence under Section 48 of the Crimes Act, as by that point the nurse was in pain, actively being assaulted, and needed to extricate himself. This case establishes a principle: de-escalation or other safer, less-intrusive options should be considered and, where appropriate, attempted before physical force. For paramedics, this underscores the importance of verbal de-escalation, tactical positioning and calling for backup before resorting to physical restraint. The process of intervention matters as much as the outcome.

This principle was reinforced in Wallace v Abbott (2002), where a police officer shot and killed Mr Wallace, who was on a violent rampage with a baseball bat.¹⁰ The chief justice, in allowing a jury trial, highlighted the officer’s alternatives before confrontation: waiting for a dog handler, using the patrol car’s public address system or maintaining observation. Engaging in an armed, on-foot confrontation was presented as a choice that recklessly led to lethal force. For paramedics, choices leading to intervention are as legally significant as the intervention itself. Failure to de-escalate, contain or call for appropriate resources can undermine a claim of justified force, even in high-stakes situations.

Theme 3—proportionality and excessive force

Even when justified, force needs to be proportionate to the actual threat. The Crimes Act offers several justifications for force, including Section 41, Section 39 (force in arrest) and Section 48 (self-defence). Proportionality and reasonableness are common principles across these. Cases show where this line is crossed, leading to findings of excessive and unlawful force. For any of these justifications, the defendant bears the burden of raising it, and the Crown must then prove it beyond a reasonable doubt.

In Police v Marshall (2023), a police sergeant knelt on the cheekbone of a handcuffed, non-compliant man, causing a fracture.¹¹ The man was face-down, naked and surrounded by six officers and a police dog. Despite struggling, he posed no realistic threat. The judge found the force excessive, unnecessary and punitive. Safer alternatives existed (e.g., other officers controlling limbs), and the judge inferred the force was punitive, not necessary restraint. This shows disproportionate force: even in chaos, force must be minimal and lawful. It highlights the need for continuous threat assessment and adapting force levels.

Similarly, in Duncan v Police (2011), a civilian’s act of dragging a woman by her hair to prevent self-harm was found unreasonable.¹² Despite protective intent, the action was disproportionate. These cases demonstrate that good intentions do not justify disproportionate force. Force is judged against context, including vulnerability and available resources. Courts consistently scrutinise whether force was truly “reasonably necessary”, emphasising that the intervention method must align with the threat level.

Theme 4—patient autonomy vs the duty to intervene

Case law reveals a deep, unresolved tension between Section 41 justification and a competent patient’s right to refuse medical treatment. This is a challenging and ethically complex area for paramedics, who often encounter individuals with fluctuating capacity or those refusing life-saving interventions. The New Zealand Bill of Rights Act 1990 (NZBORA) further complicates this, particularly regarding the right not to be arbitrarily detained (Section 22) and the right to refuse medical treatment (Section 11).

Courts have drawn limits. In Seales v Attorney-General (2015), Lecretia Seales, a competent woman with terminal brain cancer, sought a declaration that her doctor could lawfully assist her to end her life without facing prosecution under Section 179 (aiding and abetting suicide).¹³ The High Court held that Section 41 could not provide a legal justification for voluntary-assisted dying, as its purpose is to prevent suicide, not assist it. This case clarifies that Section 41 is strictly preventative in nature and cannot be invoked to justify active assistance in ending life, regardless of the circumstances or the person’s competence and wishes. Following this case, New Zealand enacted the End of Life Choice Act 2019, which now provides a specific legal framework for assisted dying in limited circumstances, further underscoring that Section 41 was never intended for such situations.

More complex for paramedic practice is the ruling in Chief Executive of the Department of Corrections v All Means All (2014), which found a hunger strike not legally equivalent to suicide.¹⁴ Since death was not the prisoner’s primary purpose (the hunger strike was a political protest), Section 41 could not justify force-feeding. The court upheld the competent individual’s right to refuse treatment, even if fatal. Unlike Seales, which concerned active assistance to end life, All Means All involved passive refusal of life-sustaining intervention. The distinction is critical: Section 41 may justify preventing active self-harm (e.g., physically stopping someone from jumping), but not compelling treatment against a competent person’s refusal (e.g., force-feeding, forced transport).

For paramedics, this creates a significant legal and practical challenge. They must discern, in high-pressure situations, whether they face a genuine suicide attempt (where Section 41 may justify intervention) or a competent refusal of care (where intervention may not be justified). The presence or absence of decision-making capacity becomes central, yet paramedics lack formal authority and specialised training to make definitive capacity determinations. This grey area is further complicated when encountering patients with advance directives declining life-sustaining treatment, or those at end-of-life who refuse transport to hospital—scenarios where the boundary between preventing suicide and respecting autonomy is contested and uncertain.

This raises a key question for paramedics: what is their legal standing when using force to treat a patient who has, for example, taken a survivable overdose but is now conscious and competently refusing hospital transport?¹⁵ Case law offers no definitive answer, suggesting Section 41 justification may weaken or vanish if a patient has capacity—an assessment paramedics are not formally trained nor legally empowered for, yet are expected to undertake daily. This leaves field capacity assessment as a significant legal and ethical grey area. It is important to note that paramedics are not qualified to undertake formal capacity assessments, which require specialised clinical expertise typically provided by psychiatrists or designated health practitioners. Unlike police officers (Section 109 MHA) or designated medical practitioners (compulsory treatment orders), paramedics lack explicit MHA authority to detain or compel individuals.

Their interventions are primarily justified by Section 41, which provides a justification for what would otherwise be assault, not a positive power to compel. Without guidance, paramedics are in an unenviable position, forced to make rapid, high-stakes judgments about a patient’s capacity without formal legal or clinical frameworks. While paramedics cannot perform formal capacity assessments, field-appropriate training could help them recognise when capacity may be impaired and when expert assessment is needed. This training could focus on recognising key indicators (e.g., understanding information, appreciating consequences, reasoning with information) and the limitations of field-based assessment, as well as documentation for legal defensibility. This is a critical gap needing policy and training.

Discussion

Our analysis shows that the legal framework protecting paramedics in mental health emergency interventions is uncertain and significantly limited. While Section 41 offers a justification, case law interprets it narrowly, emphasising immediacy, proportionality and exhausting alternatives. With police withdrawing from many front-line mental health calls, paramedics will increasingly navigate this complex legal terrain alone, making high-stakes decisions without guidance.

Limitations of Section 41 for paramedic practice

Case law reveals three key limitations of Section 41 for paramedics:

1.      Imperative of de-escalation and alternatives: As Re Shepherd demonstrates, failing to de-escalate or use non-physical options can render even minimal force unreasonable. This places a significant burden on paramedics to show that physical intervention was a true last resort, undertaken only after exhausting all other reasonable alternatives or deeming them unsafe. This requires training in communication, de-escalation techniques and tactical decision making in dynamic environments. Current rapid intervention training may inadvertently conflict with this legal imperative, requiring a re-evaluation of training priorities to align with the least restrictive means principle.

2.      Mandate of proportionality: Police v Marshall demonstrates that punitive, excessive or unnecessary force, particularly when other resources (e.g., additional personnel, less-lethal options) are available, are not legally protected. Force should be strictly proportionate to the immediate threat. This requires a nuanced understanding of threat assessment and the ability to apply only the minimum necessary force, even under pressure. The potential for criminal liability under Section 62 of the Crimes Act (“Everyone authorised by law to use force is criminally responsible for any excess.”²) further compounds this risk, putting individual paramedics in a precarious position where a split-second decision can have life-altering legal consequences. This highlights the need for guidelines on appropriate force escalation and de-escalation, and a deeper understanding of how Section 41 interacts with other criminal law defences like self-defence (Section 48) or force in arrest (Section 39).

3.      Unresolved question of patient capacity: Capacity assessment is perhaps the most significant legal and ethical grey area. Cases like All Means All suggest Section 41 may not justify intervention if a patient has capacity to refuse life-saving treatment, even if it leads to self-harm. Paramedics are not qualified to undertake formal capacity assessments, which are complex determinations requiring specialised expertise typically provided by psychiatrists or other designated medical practitioners. This limitation leaves paramedics vulnerable to legal challenges when they intervene with force against the wishes of a patient whose capacity is unclear. The ongoing review of the MHA and its alignment with the Convention on the Rights of Persons with Disabilities could further complicate this area. This may shift the legal landscape towards greater emphasis on capacity-based decision making, requiring a framework that helps paramedics recognise when capacity may be impaired and when expert assessment is needed, while balancing individual autonomy with the duty to prevent harm.

The nature and sources of legal uncertainty

While Section 41 provides a legal justification for preventing suicide, its practical application in pre-hospital mental health emergencies is characterised by substantial uncertainty. This uncertainty arises from several interconnected sources. First, there is a marked paucity of case law: only 20 cases over 37 years (1986–2023) have substantively interpreted Section 41, with most addressing police or psychiatric contexts rather than paramedic practice specifically. This limited jurisprudence leaves many practical scenarios without clear legal guidance.

Second, misunderstanding of Section 41’s scope extends across professions. Discussions with psychiatrists, lawyers, police officers and paramedics reveal inconsistent interpretations of when force is justified, what constitutes “reasonably necessary” force and how patient capacity affects the legal analysis. Indeed, the term capacity itself seems to create uncertainty, with some practitioners conflating the specialised capacity assessment undertaken by subspecialists with the more general capacity assessments routinely undertaken by a range of medical and non-medical health practitioners. This is not a paramedic training issue—it reflects a broader lack of clarity on how the law itself is applied, or that we are using an instrument (criminal law) that is not the best tool for the intended application.

Third, paramedics regularly encounter scenarios where Section 41’s applicability is unclear. These include situations involving serious but not immediately life-threatening self-harm, as the Crimes Act does not cover non-immediate threats (where the “immediate” requirement may not be met), patients who appear to have capacity to refuse treatment (where All Means All suggests intervention may be unjustified), cases where mental health emergency teams are unavailable and police decline to attend (leaving paramedics as the only responders without explicit authority) and situations involving advance directives or end-of-life wishes (where the boundary between preventing suicide and respecting autonomy is contested). This uncertainty forces paramedics to choose between unlawful but ethical action (intervening without legal justification) versus abandoning the patient to potential harm.

Noting this ambiguity, other jurisdictions have moved away from relying on crimes legislation for mental health emergency response.¹⁶ Victoria and the Australian Capital Territory, for example, have shifted to health-centred statutory frameworks under their respective mental health acts, providing explicit powers and protections for paramedics and other health professionals. New Zealand’s continued reliance on Section 41—a provision within the Crimes Act designed for general citizen intervention—reflects the absence of a comprehensive, health-focussed legal framework for pre-hospital mental health emergency response. A comparative legal overview of New Zealand and Australian jurisdictions is provided in Figure 3.

Broader implications for mental health emergency response

This review highlights a broader systemic issue in New Zealand’s mental health emergency response. Paramedics’ reliance on Section 41 is a symptom of a fragmented system lacking comprehensive, integrated legal and operational frameworks. The “right person, right care” model, while well intentioned, needs robust legal protections and practical guidelines for all front-line responders.¹⁷ Without these, the shift in police involvement risks transferring the burden and legal uncertainty (without any additional resourcing), rather than resolving underlying systemic challenges. An integrated response warrants inter-agency protocols, a shared understanding of legal authorities and limitations and a collaborative approach that prioritises patient safety and wellbeing while protecting clinicians from legal risks from undertaking their usual duties.

Recommendations

The current legal framework, particularly the reliance on Section 41 of the Crimes Act, is insufficient for supporting paramedics in their expanding and important role in mental health emergency intervention. To ensure the safety of both clinicians and patients, co-ordinated action is needed across legislative, policy and training domains.

We recommend the following specific actions:

1.      Legislative reform: The new Mental Health Bill is needed to explicitly include paramedics.¹⁶ This reform should grant paramedics clear, context-appropriate legal authority and protection to assess, detain, treat and transport individuals in acute mental health emergencies, like powers given to police and other designated clinicians. This was the subject of a joint submission to the select committee by New Zealand’s national ambulance services, advocating for their inclusion within the Act’s framework to ensure seamless and legally sound care.¹⁸ Such clarity would reduce paramedics’ current legal ambiguity, providing a more robust foundation for their interventions and aligning legal powers with operational responsibilities.

2.      Development of national, integrated guidelines: Health New Zealand – Te Whatu Ora, in collaboration with national ambulance services, the New Zealand Police and mental health advocacy groups, could develop and implement national clinical practice guidelines for mental health emergency response. These guidelines could provide a robust, evidence-based framework for:

a.      rapid and accurate risk assessment in dynamic pre-hospital environments, including tools for assessing immediate danger and escalation potential;

b.      advanced de-escalation techniques, drawing directly from Re Shepherd principles and incorporating evidence-based communication strategies to reduce the need for physical intervention;

c.      determining when and how force is “reasonably necessary”, incorporating lessons from proportionality cases (Police v Marshall, Duncan v Police) and available alternatives, and providing practical examples and decision-making trees to guide paramedics in complex scenarios;

d.      clear protocols for inter-agency collaboration, explicitly defining roles and responsibilities between ambulance, police and mental health services to ensure a co-ordinated, effective and legally compliant response.

3.      Multidisciplinary training: All health professionals would benefit from regular, realistic simulation-based training in de-escalation techniques, recognising when capacity may be impaired, and the legal and ethical application of restrictive practices. This training could be:

a.      scenario-based—using realistic simulations of mental health emergencies to build practical skills and decision making under pressure, allowing paramedics to practice applying legal principles in real-time scenarios and receive constructive feedback;

b.      multidisciplinary—co-designed and co-delivered with mental health professionals, police and, crucially, people with lived experience of mental health emergencies to ensure comprehensive, empathetic and realistic training, fostering a shared understanding and collaborative approach;

c.      legally informed—explicitly integrating the nuances of Section 41, Section 62 and relevant aspects of the MHA and the NZBORA, ensuring all relevant professionals understand their respective powers, limitations and potential legal consequences, which includes training on documentation to support legal defensibility.

Conclusion

While Section 41 of the Crimes Act 1961 is an important legal tool, it is not a sufficient tool for paramedics operating in complex mental health emergency interventions. The current framework requires clarification and places a burden on individual pre-hospital practitioners. Legislative reform, clear national guidelines and robust multidisciplinary training are needed to better support paramedics and ensure the safety and wellbeing of both clinicians and the vulnerable patients they serve. Comprehensive reform would help ensure a safe, effective and legally sound mental health emergency response system.

View Table 1, Figure 1–3.