A and MENTAL HEALTH REVIEW BOARD
[2012] WASAT 139
•6 JULY 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: MENTAL HEALTH ACT 1996 (WA)
CITATION: A and MENTAL HEALTH REVIEW BOARD [2012] WASAT 139
MEMBER: JUSTICE J A CHANEY (PRESIDENT)
DR F NG (SENIOR SESSIONAL MEMBER)
MS K KEMP (SESSIONAL MEMBER)
HEARD: 25 JUNE 2012
DELIVERED : 6 JULY 2012
FILE NO/S: MHA 2 of 2012
BETWEEN: A
Applicant
AND
MENTAL HEALTH REVIEW BOARD
Respondent
Catchwords:
Mental health - Involuntary patient - Community treatment order - Whether less restrictive option than involuntary order - Need for order
Legislation:
Mental Health Act 1996 (WA), s 2(c), s 5, s 6, s 26, s 26(1), s 26(1)(b), s 21(6)(c), s 29, s 34, s 65, s 66, s 66(1), s 67, s 68, s 138, s 142, s 145, s 145(2), s 148A, s 149, s 150, Pt 3, Div 3, Subdiv 3
State Administrative Tribunal Act 2004 (WA), s 18(1), s 27, s 29(1)
Result:
Applicant declared no longer involuntary
Category: B
Representation:
Counsel:
Applicant: Ms S Boulter and Mr C Eleftheriou
Respondent: N/A
Solicitors:
Applicant: Mental Health Law Centre (WA) Inc
Respondent: No appearance
Case(s) referred to in decision(s):
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
EO v Mental Health Review Board [2000] WASC 203
MM v Mental Health Review Board (unreported, CIV 2235 of 1998, 4 March 1999, Library No 990093); BC 9900584 (MM)
Mustac v Medical Board of Western Australia [2007] WASCA 128
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant sought a review of a decision of the Mental Health Review Board which had affirmed a community treatment order. The applicant's mother, who had been actively involved in the care and treatment of the applicant over many years, objected to the use of certain antipsychotic medications which were to be administered under the community treatment order. The applicant had been under the care of a private psychiatrist for a number of years. Counsel for the applicant contended that the making of an involuntary order was not required for any of the purposes enumerated under the Mental Health Act 1996 (WA) for which an involuntary order should be made, and that treatment could be provided in a less restrictive way than by a community treatment order. A number of other objections to the continuation of the order were also raised on behalf of the applicant.
Between the affirmation of the order by the Mental Health Review Board and the hearing before the Tribunal, treatment of the applicant had progressed, and discussions had been held between the psychiatrist responsible for treatment under the community treatment order, and the applicant's private psychiatrist. Those discussions had led to substantial agreement as to appropriate ongoing treatment. On that basis, the Tribunal considered that appropriate treatment could be provided to the applicant on a voluntary basis, involving less restriction of her freedom of choice in movement, and accordingly the community treatment order should be discharged.
The application
The applicant brings this application pursuant to s 148A of the Mental Health Act 1996 (WA) (MH Act) seeking a review of the decision of the Mental Health Review Board (Board) made on 8 May 2012 by which the Board confirmed a community treatment order (CTO) in relation to the applicant.
A CTO is a less restrictive form of involuntary order which must be considered before a psychiatrist makes an order to detain a patient as an involuntary patient, or to continue that detention - MH Act s 65.
Section 66 of the MH Act deals with when a CTO can be made. Subsection (1) of that section provides:
(1)A psychiatrist is not to make a community treatment order in respect of a person unless satisfied that -
(a)treatment in the community would not be inconsistent with the objectives set out in section 26(1)(b); and
(b)suitable arrangements can be made for the care of the patient in the community; and
(c)a medical practitioner or mental health practitioner who is suitably qualified and willing to do so will be available to ensure that the patient receives the treatment outlined in the order; and
(d)a psychiatrist who is willing to do so will be available to supervise the carrying out of the order.
Involuntary orders can only be made if the requirements of s 26 of the MH Act are met. That section provides:
(1)A person should be an involuntary patient only if -
(a)the person has a mental illness requiring treatment; and
(b)the treatment can be provided through detention in an authorised hospital or through a community treatment order and is required to be so provided in order -
(i)to protect the health or safety of that person or any other person; or
(ii)to protect the person from self‑inflicted harm of a kind described in subsection (2); or
(iii)to prevent the person doing serious damage to any property;
and
(c)the person has refused or, due to the nature of the mental illness, is unable to consent to the treatment; and
(d)the treatment cannot be adequately provided in a way that would involve less restriction of the freedom of choice and movement of the person than would result from the person being an involuntary patient.
(2)The kinds of self-inflicted harm from which a person may be protected by making the person an involuntary patient are -
(a)serious financial harm; and
(b)lasting or irreparable harm to any important personal relationship resulting from damage to the reputation of the person among those with whom the person has such relationships; and
(c)serious damage to the reputation of the person.
Any person performing a function under the MH Act is required to ensure that the objects of the Act are achieved so far as relevant to the particular function being performed - MH Act s 6. The objects of the MH Act are set out in s 5 as follows:
(a)to ensure that persons having a mental illness receive the best care and treatment with the least restriction of their freedom and the least interference with their rights and dignity; and
(b)to ensure the proper protection of patients as well as the public; and
(c)to minimize the adverse effects of mental illness on family life.
The applicant's background
The applicant is now 50 years old. For some years she has lived with her mother, M. She suffers from a severe form of treatment resistant schizophrenia. Her condition has required multiple admissions to psychiatric hospitals over a period of some 30 years. Until the events which preceded, and ultimately gave rise to, the present proceedings, she had not been hospitalised for some years.
Since February 2009, the applicant has been under the care of an experienced private psychiatrist, Dr P. During that period, Dr P had prescribed a minimal dose (100 milligrams) of Solian (also known as Amisulpride), in conjunction with ongoing support of psychotherapy. The applicant had attended Dr P at regular intervals of three to four weeks since 2009, and continues to do so.
In addition to the treatment by Dr P, the applicant has received regular visits from case officers from the Alma Street Centre outpatient team. Throughout the latter part of 2011 through to March 2012, the applicant received regular, mostly weekly, visits from a case officer, although the applicant's mother suggests that, on occasions, appointments were not kept by the case officer.
Compliance with medication
Responsibility for administration of the medication prescribed by Dr P has largely fallen to M. M, who clearly has her view of the applicant's best interests at heart, attended and gave evidence both before the Board and the Tribunal.
M has very strong views about antipsychotic medications. Hospital and outpatient notes going back over many years reveal the expression of opinion by M that various antipsychotic medications have had adverse side effects on the applicant, and that it is the applicant's withdrawal from those medications that has given rise to psychiatric symptoms which have been observed from time to time. In particular, M said, and we accept, that the applicant suffered serious side effects from the administration to her of Clozapine. It is not so clear whether health problems suffered by the applicant around or after a period of treatment of Risperidone were attributable to that medication or not, although M is of the firm view that they were.
The hospital and outpatient notes suggest that there have been periods during which M has not administered medication on a regular basis. M accepts that for a period shortly before the applicant was made an involuntary patient in March this year, she agreed to give the applicant a 'drug holiday' which commenced around about 9 March 2012 and continued until the applicant was made an involuntary patient on 23 March 2012. M denied before the Tribunal, however, she had otherwise not administered medication to the applicant as prescribed and on a regular basis. We do not accept that denial.
As already mentioned, the outpatient notes going back over many years record M's resistance to antipsychotic medication. That resistance was made very clear in M's submissions to the Tribunal. Clearly, however, she is more comfortable with the use of Solian than with the use of Risperidone which has occurred during periods of involuntary status to which the applicant has been subject from time to time.
The applicant's outpatient notes record a meeting on 25 November 2011 at a home visit involving the applicant, her mother, a case manager and an enrolled nurse. The notes record 'concerns in past 2 - 3 weeks by mother … and case manager that positive [symptoms] increasing'. They then record a series of observations on the review, and continue 'Mother reports 3/52 deterioration in mental state since she ceased giving [the patient] Amisulpride 100 mg tablets'. The notes record there appears to be a number of observations by M of worsening psychiatric symptoms. The notes continue 'Mother had to cancel psychiatrist's [appointment] last [week] due to illness but will reschedule one next week. Mother agrees to restart Amisulpride'. The summary of conclusions from the meeting records a worsening of positive symptoms 'in context of ceasing Amisulpride' and the treatment plan included restarting Amisulpride.
Outpatient notes of a visit on 1 December 2011 record a number of concerning symptoms and note 'discussed restarting Amisulpride, [mother] agreed'.
A further note on 27 January 2012 records that the applicant's mother reported that the applicant 'did not recommence Solian medication as refused' and that she will attempt to convince the applicant to recommence.
At the hearing before the Tribunal, M suggested that the notes suggesting that the applicant had not been at all times compliant with the medication regime prescribed by Dr P were simply untrue, or were a fabrication by the case workers to serve some ulterior purpose. The precise purpose being suggested was not clear to the Tribunal.
There is no reason to doubt the accuracy of the outpatient notes. There could be no purpose to be served by fabrication of notes as to discussions between M and the case workers. M also attested that she was not aware that the case workers were visiting the applicant in the context of management of the applicant's condition. Rather, she suggested that she believed it was simply some form of social service.
The extent of contact and discussions between the case workers and M recorded in the notes belie that assertion. M is obviously an intelligent woman. She has had ongoing contact with the Fremantle Hospital and the Alma Street Centre. Her statements of ignorance of the role of the case workers visiting her daughter regularly lack credibility and undermine her denials of the accuracy of the outpatient notes.
March admission to hospital
It is apparent from the medical records that in the latter part of 2011, and in the early part of 2012, concerns were held within the outpatient team as to the applicant's condition. On 22 March 2012, team members of the outpatient team attended the patient's home. M was also present. A report prepared subsequent to that meeting recorded that M had reported that her daughter 'uses different voices' with 'different personalities', that reports had been received from DADAA (an organisation which provides access to arts and culture for people with mental illnesses and disabilities) as to hostility that had been shown by the applicant towards other group members, and that the applicant had been observed responding to voices. The report suggested that the applicant had been observed yelling in response to unseen stimuli and had demonstrated hostility towards the members of the outpatient team. It suggested that the applicant posed a 'risk to reputation as verbally hostile to members of the public unprovoked'.
Subsequent to that meeting, a Form 3 - Transport Order was completed by one of the members of the outpatient team for the applicant to be transported to a hospital for examination by a psychiatrist. A referral for examination by a psychiatrist was also completed. Accordingly, on 23 March 2012, the applicant was admitted to hospital. The following day an involuntary patient order was completed by a psychiatrist following examination.
Subsequent involuntary orders
On 20 April 2012, following examination by a psychiatrist, an order for the continuation of the applicant's detention was completed.
Whilst in hospital, the applicant received an intramuscular injection of Paliperidone.
On 27 April 2012, a CTO was completed by a psychiatrist in substitution for the involuntary detention order. The treatment plan read as follows:
To comply with depot paliperidone 75 mg monthly. Next depot due on 14 May 2012.
To attend medical appointments at ASC. Next medic appointment at 13:30 on 2/5/12.
To attend appointment with case manager as arranged including home visits.
Accordingly, the applicant was then released into the community.
In the meantime, an application for review of the original involuntary order had been made to the Board. By the time that review came on for hearing on 8 May 2012, the CTO had replaced the involuntary detention order, and it was that CTO which the Board reviewed and affirmed at the hearing on 8 May 2012.
At the Board's hearing, the suggestion was made by the Board that the treating team should liaise with the applicant's private psychiatrist in relation to the ongoing treatment of the applicant.
Following the Board hearing, the applicant apparently attended her usual consultation with Dr P. She also continued to be treated in accordance with the CTO of 27 April 2012, and attended as required under that order.
On 13 June 2012, a variation or extension of the CTO was completed by a psychiatrist, Dr V. The varied CTO provided:
Variation of treatment plan: Inj Paliperidone 50 mg imi every four weeks next due 17/7/12
Tab Amisulpride 100 mg mane plus 200 mg nocte for 2 weeks and then 200 mg twice per day
Allow case manager to visit her at home every Tuesday at 10 am.
By the time the matter came on for hearing before this Tribunal on 25 June 2012, there had been further discussions between Dr P and Dr V as to the applicant's treatment. Having regard to the wishes of M, and the views of Dr P, Dr V agreed that the depot injections of Paliperidone should cease, and the dosage of the oral Amisulpride should, at least initially, be 200 milligrams administered twice per day. That decision was taken in view of the fact that the applicant's prolactin levels were elevated, and there was concern that that may have been attributable to the Paliperidone injections. Both Dr P and Dr V had agreed as to the appropriate treatment to deal with the elevated prolactin levels, and agreed that the appropriate longer term treatment could only be assessed following monitoring of the effects of ongoing treatment.
In accordance with a request by the Tribunal, Dr V provided a written variation of the CTO following the hearing. The treatment identified in that document read as follows:
Inj Paliperidone cased on 20/6/12
To continue tab AMISULPRIDE 200 mg BD
To allow case manager to visit her at home.
A variation to the reporting requirement was made by specifying an appointment with Dr V on 26 June 2012 at 3:30 pm.
Ongoing need for an order
M, who has considerable faith in Dr P's treatment of the applicant, advised the Tribunal, as she had advised the Board, that she would administer medication in accordance with the recommendations of Dr P. Dr P now proposes precisely the same treatment as is proposed by Dr V pursuant to the proposed new CTO.
It appears that the original involuntary detention order, and the subsequent CTOs which were made, were made on the basis that the orders were necessary to protect the applicant from self-inflicted harm of the kind described in s 2(c) of the MH Act, namely serious damage to the applicant's reputation. It is not entirely clear whether those who made the earlier involuntary orders considered that the orders were necessary in order to protect the applicant's health. The Board, when reviewing the first CTO, simply found that each of the requirements of paragraphs (a), (b), (c) and (d) of s 26(1) of the MH Act were established. They did not indicate which of the subparagraphs of s 26(1)(b) they found to be satisfied. In its written reasons, however, the Board clearly specified that it considered the CTO to be required 'in order to protect the health of' the applicant.
In our view, the position is now different, having regard to the agreement between the applicant's private psychiatrist and the psychiatrist responsible under the CTO (as presently proposed). We accept that ongoing treatment, in the manner agreed between the psychiatrists, is required to protect the applicant's health. That end can, however, be achieved in a way which involves less restriction on the freedom of choice and movement of the applicant than by way of CTO, namely, by treatment by her private psychiatrist.
We are mindful that the efficacy of the treatment proposed depends upon the cooperation of the applicant's mother M. M gave an assurance to the Tribunal, and an undertaking to the Board, that she would not give the applicant any further 'drug holidays', and would ensure that the applicant took her medication. Given that the current proposal under the CTO is for daily oral medication, the implementation of the CTO would, in practical terms, also be dependent upon the cooperation of M. It is true that if a CTO is in place, and M fails to comply with her assurance, the applicant is liable to be dealt with under the provisions of Pt 3, Div 3, Subdivision 3 of the MH Act which deal with breaches of CTOs. In that sense, the CTO might operate as an incentive to compliance. It is appropriate, however, for the Tribunal to proceed on the assumption that M will meet her assurance. If she does not, and the applicant's condition deteriorates as a result, the consequences may in any event be the making of further involuntary orders.
It follows that, in our view, proper treatment of the applicant can be achieved in the absence of a CTO, and the order should, on that basis alone, be discharged.
The conclusion which we have reached renders it unnecessary for us to deal with a number of submissions made on behalf of the applicant. However, some of those submissions addressed questions of construction of the MH Act and the nature of the Tribunal's review function. Given the lengthy and detailed written submissions made touching upon those points, it is appropriate that we make some observations as to the issues raised.
Nature of the Tribunal's review
Counsel for the applicant invited the Tribunal to make a number of findings of error in the reasons for decision published by the Board in relation to the decision under review. In her supplementary written submissions, Counsel made the following submission:
It is further submitted that the Tribunal is bound to, or in the alternative should exercise its discretion to, make findings about the above named parts of the reasons and any other factual legal errors because the wording of s 27(1) and s 27(3) of the SAT Act requires the Tribunal to first review the reviewable decision, and then because s 27(3) provides that the Tribunal is not limited to the Reasons, it is properly inferred that the Tribunal must at the very least.
It is submitted that the tenure of the Enabling Act and the SAT Act mean that the s 29(2) of the SAT Act requirement to make the preferable decision includes correcting any errors of fact, law, inference and/or irrelevant statements made by the Board in the Reasons.
For the reasons that follow, those submissions are misconceived.
Section 27 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) provides:
Nature of review proceedings
(1)The review of a reviewable decision is to be by way of a hearing de novo, and it is not confined to matters that were before the decisionmaker but may involve the consideration of new material whether or not it existed at the time the decision was made.
(2)The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.
(3)The reasons for decision provided by the decision‑maker, or any grounds for review set out in the application, do not limit the Tribunal in conducting a proceeding for the review of a decision.
This Tribunal is a tribunal not a court - see Mustac v Medical Board of Western Australia [2007] WASCA 128 at [48]. The identity and qualifications of persons constituting the Tribunal do not affect the fundamental characterisation of the function being performed - see Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 584 - 585.
The proper function of the Tribunal under s 27 of the SAT Act is to consider the merits of the matter in relation to which a reviewable decision has been made so as to reach the correct and preferable decision. In undertaking that process, the Tribunal exercises the functions and discretions corresponding to those exercisable by the original decisionmaker - SAT Act s 29(1). The Tribunal is required to deal with the matter in accordance with the enabling Act, in this case the MH Act, and the SAT Act - SAT Act s 18(1). The Tribunal will, as a matter of usual course, have regard to the reasons given by the original decisionmaker in order to understand why the reviewable decision was made. In inviting the Tribunal to reach a different decision on the merits, an applicant will often, either expressly or impliedly, suggest that the reasoning of the original decisionmaker was erroneous. It is not, however, necessary to identify error, and to focus on procedural or substantive error as a ground for setting aside a decision of an original decisionmaker is to distract from the task at hand. Merits review involves a fresh exercise of discretion having regard to the evidence and materials before the Tribunal at the time that it hears and determines the application for review.
In carrying out a review of a decision of the Board under the MH Act, the Tribunal exercises the functions and discretions of the Board.
In its reasons for decision, the Board treated the application before it as an application under s 142 of the MH Act which enables an application to be made to the Board for a review of an involuntary treatment order. Counsel for the applicant submitted that the review was, in fact, an initial review as required by s 138 of the MH Act. The Board's file suggests that the review which was held, resulted from a request from the applicant which was made shortly after the initial involuntary treatment order was made, and well before the period of eight weeks allowed for an initial review under s 138. The distinction is, however, of no particular significance. However the Board may have become seised of the matter, the powers which the Board, and in turn the Tribunal, had available to it are found under s 145 of the MH Act. That section enables the Board to 'make such order in respect of a matter as it thinks appropriate'. Without limiting that broad discretion, s 145(2) of the MH Act provides that:
(2)Without limiting subsection (1) the Board may -
(a)order that the person is no longer an involuntary patient; or
(b)order that a community treatment order be made in respect of the person, giving such directions, if any, as it thinks fit in relation to the terms of the order; or
(c)if the person is the subject of a community treatment order, vary the order, and give such directions in relation to the order as it thinks fit.
It is clear, therefore, that the focus of the Tribunal's review is the question of whether an involuntary order should continue to have effect, and if so, the terms of that order. That question is answered by having regard to the merits of the application, and in particular whether or not the information before the Tribunal supports a conclusion that the requirements of s 26 of the MH Act, and any other prerequisites to the making of an order have been met. Whether the Board made some appellable error in making the original decision is not to the point.
The function of the Tribunal is, in that sense, different from the function of the Supreme Court under s 149 of the MH Act. An appeal under s 149 may be made on the grounds set out in s 150 of the MH Act, namely that the Tribunal made an error of law or a fact or both, or acted without jurisdiction or in excess of its jurisdiction, or that there is some other sufficient reason for hearing an appeal. It was an appeal of that nature which was the subject of proceedings in EO v Mental Health Review Board [2000] WASC 203 (EO) and MM v Mental Health Review Board (unreported, CIV 2235 of 1998, 4 March 1999, Library No 990093); BC 9900584 (MM). When the Tribunal was established, and s 148A was introduced into the MH Act, the Tribunal did not assume the role previously exercised by the Supreme Court in relation to appeals from the Board. Rather, a new level of merits review was inserted into the MH Act so that dissatisfied parties were given the opportunity of a fresh hearing.
Validity of the previous orders
We accept that, as Scott J explained in MM, that the provisions of the MH Act should be strictly complied with before the detention or continued detention of an involuntary patient is permitted. We also accept, as Templeman J explained in EO, that the same approach is required in relation to the requirements for the making of a CTO, because although a CTO does not result in detention or continued detention of an involuntary patient, it may lead to that result in the event of breach.
The applicant's counsel relied on those decisions in attacking the chain of events which led to the making of the CTO which became the subject of the Board's review. The applicant's counsel submitted that the initial referral under s 29 and the transport order under s 34 of the MH Act were invalid, and that the CTO was itself invalidly executed so that it followed that the CTO should be set aside.
We accept that if the prerequisites to the making of a CTO are not satisfied, the order should be set aside. An example might be an order made by a psychiatrist who had not examined the person as required by s 67 of the MH Act. If, at the time of the hearing by the Board, or by the Tribunal these prerequisites remain unsatisfied, neither the Board nor the Tribunal could make a new CTO. In this case, however, the attack on validity of the CTO appears to have been based on the proposition that the CTO did not comply with the requirements of s 68 of the MH Act in that it failed to state the details of required appointments for treatment. That submission was based on the comment of Templeman J in EO that it is 'of great importance that details should be given to a patient so that he or she knows precisely what is required in terms of attending for treatment and is left in no doubt about the requirements'.
In EO, the CTO under review had expired. Notwithstanding that, Templeman J considered the various grounds of appeal which had been argued on behalf of EO. He concluded that the CTO the subject of the appeal, were it still operative, should have been quashed. His Honour indicated that had the issue been live, he would have remitted the matter to the Board to be reconsidered in the light of his findings.
In relation to Templeman J's observations as to the form of the CTO, which he found to be defective, the remedy which he would have provided had the CTO been operative, is not expressly identified. Consistent with the other findings, however, it would have been open to his Honour to remit the matter back to the Board to enable it to exercise its powers under s 145 of the MH Act having regard to his findings. That would, in our view, have enabled the Board to 'order that a community treatment order be made' and to 'give such directions … as it thinks fit in relation to the terms of the order', notwithstanding that the CTO under appeal had been found to be defective.
Where, as here, criticism is made as to the adequacy of the contents of a CTO, such as a failure to adequately specify dates, times and places for ongoing treatment, it is open to the Board (and in turn the Tribunal) to exercise its power under s 145 of the MH Act to remedy the defect in the CTO. The Board, and in turn the Tribunal, is not required, where it finds that a CTO does not comply with the requirements of s 68, to simply discharge the CTO on the basis of 'invalidity', notwithstanding that all of the requirements under s 26 of the MH Act for the making of an involuntary order are satisfied. To do so would be to act contrary to the statutory objects found in s 5, and in particular the objects of ensuring that persons having a mental illness receive the best care and treatment, and of ensuring that proper protection of patients and the public is achieved. Because both the Board and the Tribunal perform a merits review, and given the wide powers found in s 145 of the MH Act, defects in the form of the CTO as originally made by a psychiatrist will not automatically result in the discharge of the CTO, but may be dealt with by varying the CTO or making a fresh CTO.
That is not to say, of course, that it is unnecessary that the statutory prerequisites for the making of involuntary orders be established. The validity of various steps taken prior to the making of the order the subject of review may not affect the validity of the order the subject of review. The relevant question is whether a prerequisite to the exercise of power to make the relevant order has been met. It is not necessary in this case to undertake that analysis, even if the criticisms of the referral and the transport order are justified.
Role of a guardian
The Tribunal was advised that, on 6 June 2012, M was appointed as the applicant's guardian with power to make decisions about her treatment. The submission was then put that the applicant, through her appointed guardian, 'can now consent to or refuse treatment; and accordingly one essential element that must exist to make the involuntary patient order, namely that the applicant cannot consent, has not been and cannot be satisfied since 6 June 2012'.
That submission ignores the possibility that s 26(1)(c) of the MH Act can be satisfied not only where a person suffering a mental illness is unable to consent to treatment, but also where the person has refused. Where a duly appointed guardian consents to treatment, and the represented person complies with that consent, then we agree that the requirements of s 26(1)(c) would not be met, and an involuntary order could not be made. Where, as here, there was a refusal to consent to treatment by the guardian, and a refusal or inability to consent on the part of the represented person, there is no reason why an involuntary order could not be made, provided the other requirements of s 26(1) of the MH Act are met.
In the event, of course, given the agreement by all parties, including the guardian, as to the appropriate ongoing treatment, the need for an involuntary order falls away as we have concluded above.
Conclusion
For the reasons explained above, a CTO is not necessary to ensure the best care and treatment for the applicant, and the presently operative CTO should be discharged.
Order
1.Pursuant to s 145 of the Mental Health Act 1996 (WA) it is ordered that the applicant is no longer an involuntary patient.
I certify that this and the preceding [59] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J A CHANEY, PRESIDENT