A (by his tutor Brett Collins) v Mental Health Review Tribunal (No 4)
[2014] NSWSC 31
•07 February 2014
Supreme Court
New South Wales
Medium Neutral Citation: A (by his tutor Brett Collins) v Mental Health Review Tribunal (No4) [2014] NSWSC 31 Hearing dates: 12 December 2013 Decision date: 07 February 2014 Jurisdiction: Equity Division Before: Lindsay J Decision: 1. Order that the proceedings be dismissed.
2. Note that no order as to the costs of the proceedings is made.
Catchwords: MENTAL HEALTH - Forensic Patient - Mental Health Review Tribunal - Review of the case of a forensic patient - Application for leave to appeal from Tribunal determination - Application limited to question of law - Detention, care and treatment of forensic patient in mental health facility - Forced medication by depot injection. Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 NSW, s 247.
Criminal Appeal Act 1912 NSW
Guardianship Act 1987 NSW, ss 8, 31 and 31G;
Health Services Act 1997 NSW
Interpretation Act 1987 NSW
Mental Health (Forensic Provisions) Act 1990 NSW
Mental Health Act 2007 NSW
NSW Trustee and Guardian Act 2009 NSW
Uniform Civil Procedure Act 2005 NSW
Uniform Civil Procedure Rules 2005 NSWCases Cited: A by his Tutor Brett Anthony Collins v Mental Health Review Tribunal and Anor [2010] NSWSC 1363 (26 November 2010)
A v Mental Health Review Tribunal [2012] NSWSC 293 (2 April 2012)
Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated (1981) 148 CLR 170 at 177
Allesch v Maunz (2000) 203 CLR 172 at 180 [23]
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-157, esp. 156G-157B.
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 619-622
Craig v South Australia (1995) 184 CLR 163 at 177
Dainford Ltd v Smith (1985) 155 CLR 342 at 349
Eastman v The Queen (2000) 203 CLR 1 at 33 [104] - 34 [107]
Finance Facilities Pty Limited v Federal Commissioner of Taxation (1971) 127 CLR 106 at 134-135 and 138-139
Hadfield's Case (1800) 27 State Trials 1281
Harris v Caladine (1991) 172 CLR 84 at 124-125; CDJ v VAJ (1998) 197 CLR 172 at 201-202 [111]
Hogan v Hinch (2011) 243 CLR 506 at 536 [31] and 548 [69].
House v The King (1936) 55 CLR 499 at 505
Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 at 222
Kirk v Industrial Court of New South Wales (2009) 239 CLR 531
Klein v Domus Pty Ltd (1963) 109 CLR 467 at 473
Kostas at HIA Insurance Services Pty Limited (2010) 241 CLR 390 at 399 [27] - 402 [32]
Minister for Immigration and Citizenship v Li [2013] HCA 18; 86 ALJR 618 at [23]
Minister for Immigration and Ethnic Affairs v Wu Shan Lian (1996) 185 CLR 259 at 271-272
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at 16 [39] - 17 [40]
Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 CLR 1 at 16 [39] - 17 [40]
Osland v Secretary, Department of Justice [No 2] (2010) 241 CLR 320 at 329 [13]
O'Sullivan v Farrer (1989) 168 CLR 210 at 216
PB v BB [2013] NSWSC 1223 at [3]-[9], [28] and [39]-[5].
R v Mailes (2001) 53 NSLR 251, 269 [92]
Re Eve [1986] 2 SCR 388 at 408 and 411; 31 DLR (4th) 1 at 14-15 and 17; 410, 426, 427 and 437; 31 DLR (4th) 1 at 16, 28, 29 and 36
Re Refugee Tribunal; Ex parte AALA (2000) 204 CLR 82 at 141 [163]
Re WM (a person alleged to be of unsound mind) (1903) 3 SR (NSW) 552; Christianson v Christianson [1999] QCA 241
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 164 [40]
Tasty Chicks Pty Limited v Commissioner of State Revenue (NSW) (2011) 245 CLR 446 at 453 [16],
Ward v Williams (1955) 92 CLR 496 at 505-506
Warren v Coombes (1979) 142 CLR 531
Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 504-505Texts Cited: A Barak, Purposive Interpretation in Law (Princeton UP, 2005)
HS Theobald, The law relating to Lunacy (1924) p 382
JH McClemens and JM Bennett, "Historical Notes on the Law of Mental Illness in NSW" (1962) 4 Sydney Law Review 51 at 53
M Aronson and M Groves, Judicial Review of Administrative Action (Law Book Co, 5th ed, 2013), chapter 4
M Aronson and M Groves, Judicial Review of Administrative Action (Law Book Co, 5th ed, 2013), para [4.130]
M Aronson and M Groves, Judicial Review of Administrative Action (Law Book Co, 5th ed, 2013) para [4.130]
M Leeming, Authority to Decide: The Law of Jurisdiction in Australia (Federation Press, Sydney, 2012), pp 57-58Category: Principal judgment Parties: A (plaintiff)
Mental Health Review Tribunal (first defendant)
Justice Health & Forensic Mental Health Network (second defendant)Representation: Counsel:
S Fraser (plaintiff)
P Herzfeld (defendant)
Solicitors:
O'Briens Solicitors (plaintiff)
The Crown Solicitor (defendant)
File Number(s): 2013/0288415
Judgment
INTRODUCTION
These proceedings were heard on 12 December 2013 and dismissed by an order made on 17 January 2014. Upon dismissal of the proceedings I delivered, orally, an outline of my reasons, reserving until now my full Reasons for Judgment.
Those outline reasons were subsequently reduced to writing, and provided to the parties, in aid of early preparations for a forthcoming periodic review of the plaintiff's case, by the Mental Health Review Tribunal ('the Tribunal"), under s 46 of the Mental Health (Forensic Provisions) Act 1990 NSW. They are published, generally, today as A (by his Tutor Brett Collins) v Mental Health Review Tribunal (No 3) [2014] NSWSC 30.
These, the foreshadowed full Reasons for Judgment are published as "No 4" in a series.
The parties have a history of engagement in litigation. In earlier proceedings Justice Johnson published a judgment styled, A by his Tutor Brett Anthony Collins v Mental Health Review Tribunal and Anor [2010] NSWSC 1363 (26 November 2010), and in other proceedings Justice Adams published a judgment styled, A v Mental Health Review Tribunal [2012] NSWSC 293 (2 April 2012).
In each case, "A" is the plaintiff's pseudonym. Pseudonyms are customarily deployed by the Court in appeals from the Tribunal in conformity with s 162(1) of the Mental Health Act 2007 NSW. That provision provides that "[a] person must not, except with the consent of the Tribunal, publish or broadcast the name of any person... to whom a matter before the Tribunal relates or, ... who appears as a witness before the Tribunal in any proceedings, or ... who is mentioned or otherwise involved in any proceedings under [the Mental Health Act or the Mental Health (Forensic Provisions) Act] whether before or after the hearing is completed."
In Collins v Attorney General of NSW [2013] NSWCA 2008 the Court of Appeal dismissed an application by the plaintiff's tutor for an extension of time within which to apply for leave to appeal against a costs order made against him personally in the 2010 proceedings.
The current judgments, in these proceedings, are numbered "3" and "4" in deference to those earlier judgments, each of which contains an exposition of the plaintiff's personal history and his engagement with the NSW mental health system.
As a "forensic patient" (within the meaning of s 42 of the Mental Health (Forensic Provisions) Act) the plaintiff (by Mr Collins acting as his tutor pursuant to Part 7 Division 4 of the Uniform Civil Procedure Rules 2005 NSW) challenges, in these proceedings, a determination made (pursuant to s 47(1)(a) of that Act) by the Tribunal, a statutory tribunal constituted under Chapter 6 of the Mental Health Act.
The plaintiff's tutor is his "primary carer" within the meaning of s 71 of the Mental Health Act. Although the evidence before the Court is silent as to how he comes to be the plaintiff's primary carer, Mr Collins appears to have the plaintiff's nomination as primary carer (pursuant to s 72 of the Mental Health Ac) as a carer, or close friend, of the plaintiff. They evidently share an interest in an organisation called "Justice Action".
An objective of Justice Action is to raise awareness of contentious issues in the legal system including, in particular, those that concern prisons, prisoners and mental health: A v Mental Health Review Tribunal [2012] NSWSC 293 at [4].
By an order made by the Tribunal on 27 August 2009 pursuant to s 47(1) of the Mental Health (Forensic Provisions) Act, the plaintiff is currently, as he has been since that date, "detained in the Forensic Hospital [at Long Bay] to receive care and treatment".
The Tribunal, named as the first defendant in the proceedings, has filed a submitting appearance.
The second defendant, known colloquially as "Justice Health" but more fully named "Justice Health and Forensic Mental Health Network", is a "specialty network governed corporation" constituted by s 41 of the Health Services Act 1997 NSW.
All clinical services in the Long Bay Forensic Hospital are provided by Justice Health.
Insofar as the plaintiff's challenge to the decision of the Tribunal may need a contradictor, Justice Health has performed that role.
It has done so subject to an express reservation (which I accept as appropriate) that it does not perceive itself to be opposed to the plaintiff in any sense but, rather, obliged to assist the Court in moving towards a proper, and fair, determination of the proceedings.
In other appeals from the Tribunal the Attorney-General of NSW has been joined in the proceedings for the express purpose of serving as a contradictor.
As Justice Health comes within the purview of the Minister for Health, and the Minister has substantial rights of appeal under the provision (s 77A of the Mental Health (Forensic Provisions) Act) pursuant to which the plaintiff challenges the Tribunal's determination in the present proceedings, it is an appropriate contradictor.
The determination of the Tribunal under challenge was made on 12 September 2013. It is supported by Reasons for Decision dated 1 October 2013. Paraphrasing s 47(1)(a) of the Mental Health (Forensic Provisions) Act, it relates to the plaintiff's "continued detention, care or treatment" in a forensic hospital.
The determination made by the Tribunal was that there should be no variation to the plaintiff's care, treatment and detention notwithstanding an application made to the Tribunal, by him, that it order that the administration of medication to him against his will be prohibited.
A treating doctor of the plaintiff (a psychiatrist and "authorised medical officer" within the meaning of s 4(1) of the Mental Health Act) advised the Tribunal that, subject to any order that might be made by the Tribunal, the team of doctors treating the plaintiff proposed to recommence their treatment of him by long-acting injectable medication ("depot injection") for the delivery of anti-psychotic drugs.
Over his objection the plaintiff had been subjected to that type of treatment for several years, following which he had been administered medication orally without resort to injections.
Difficulties experienced by the plaintiff's treating doctors in the administration of medication orally, including doubts about whether he was in fact ingesting it, led to the doctors' proposal for recommencement of injections.
Those doctors are authorised by s 84 (read with s 82) of the Mental Health Act to treat the plaintiff as proposed, subject to any order that the Tribunal or the Court might make.
Section 84 (entitled "Treatment may be given to patients") provides that "[an] authorised medical officer of a mental health facility may, subject to [the Mental Health Act and the Mental Health (Forensic Provisions) Act], give, or authorise the giving of, any treatment (including any medication) the officer thinks fit to an involuntary patient... detained in the facility in accordance with [either of the two named Acts]."
Section 82 includes a forensic patient in the definition of "involuntary patient".
The statutory protections against abuse of the authority conferred by s 84 include (in s 85 of the Mental Health Act) a proscription, with a penalty, on any medical practitioner administering, causing to be administered or knowingly permitting the administration of a drug (in relation to any mental illness or mental condition) "in a dosage that, having regard to professional standards, is excessive or inappropriate".
The issue about whether treatment of the plaintiff by depot injection should recommence was put to the Tribunal for determination, after a formal hearing, on the conduct by the Tribunal of its 21st periodic review of the plaintiff's case under ss 46(1) and 47(1)(a) of the Mental Health (Forensic Provisions) Act, via a formal application made by the plaintiff to the Tribunal for an order that his treatment and care not include depot injections.
In A by his Tutor Brett Anthony Collins v Mental Health Review Tribunal and Anor [2010] NSWSC 1363 at [26] (3)(d) and [68]-[71] the Attorney-General (then fulfilling the role of the plaintiff's contradictor), and implicitly the Court, accepted that, as a matter of jurisdiction, it was open to the Tribunal to make such an order under s 47(1)(a) of the Mental Health (Forensic Provisions) Act. I agree.
Although the determination made by the Tribunal took the form of a decision that there should be no variation of the plaintiff's care, treatment and detention, and that the order of 27 August 2009 should remain in force without variation, it was, in substance, a determination that the plaintiff's application for a prohibition order be dismissed.
The plaintiff challenges the Tribunal's determination by way of an application (in proceedings commenced by summons, subsequently amended) for leave to appeal to the Court, on a question of law, pursuant to s 77A(1) of the Mental Health (Forensic Provisions) Act.
Section 77A(11) provides that "[if] a party has appealed under this section to the Court against a determination of the Tribunal, either the Tribunal or the Court may suspend, until the appeal is determined, the operation of any order or determination made in respect of the proceedings".
In the current proceedings neither the Tribunal nor the Court has made an order under s 77A(11) for suspension of any order or determination of the Tribunal.
The nature of the determination of the Tribunal under challenge does not lend itself to a s 77A(11) suspension order because it was, in substance, an order for dismissal of the plaintiff's application for variation of a continuing s 47(1) order that is not otherwise controversial.
On 26 September 2013, on the application of the plaintiff, and with the consent of Justice Health, the Chief Judge in Equity granted an interlocutory injunction to prevent the forced administration of anti-psychotic medication via depot injection until determination of the plaintiff's amended summons.
Prior to granting the injunction the Chief Judge sought from the plaintiff's solicitor, and obtained, an assurance that, during the currency of the injunction, the plaintiff would take his medication orally.
Having regard to the nature of the injunction granted, and the medical condition of the plaintiff, no formal undertakings were sought or obtained from the plaintiff beyond that informal assurance.
The jurisdiction to grant an interlocutory injunction of the type granted is incidental to the existence of a right of appeal to the Court. It derives from the inherent power of the Court, reinforced by the Supreme Court Act 1970 NSW, s 23, to do whatever may be necessary to prevent injustice occurring with respect to matters coming within its cognisance: Ex parte Farren; Re Austin (1960) 77 WN (NSW) 743 at 744-745; Dwyer v National Companies and Securities Commission (1988) 15 NSWLR 285 at 287B-D and 287G-288D; Veghelyi v Council of the Law Society of NSW (1989) 17 NSWLR 669 at 676D-678B.
The jurisdiction is undiminished by the fact that, as in these proceedings, any right of appeal is conditioned on a grant of leave to appeal. The Court is able (by the grant of an injunction, stay or other order as the nature of the case may require) to protect the integrity of the appeal process.
In substance, the question sought to be raised by the plaintiff under s 77A is whether the Tribunal erred in acting upon a principle that "only in exceptional cases [of which this was not considered by the Tribunal to be one] would [it] step in and make orders as to the medication to be given or not given to a patient who is under the every-day care of a competent treating team [of doctors authorised by Justice Health]".
As elaborated in submissions, the plaintiff contends that, in undertaking a "review of the case" of the plaintiff for the purpose of s 46(1) of the Mental Health (Forensic Provisions) Act as a preliminary to a consideration of whether to make an order under s 47(1) of the Act:
(a) the Tribunal acted upon a presumption that it should make no order departing from, or interfering with, arrangements for the care or treatment of a forensic patient devised by treating doctors authorised by Justice Health (M Aronson and M Groves, Judicial Review of Administrative Action (Law Book Co, 5th ed, 2013), para [4.130]; Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 CLR 1 at 16 [39] - 17 [40]); and
(b) the Tribunal thereby:
(i) mis-stated the test it was required, by ss 46-47 of the Mental Health (Forensic Provisions) Act, read with ss 40 and 74 of the Act, to apply upon a consideration of the plaintiff's application;
(ii) impermissibly delegated to the plaintiff's treating doctors decision-making about the plaintiff's continued detention, care or treatment; and
(iii) adopted a test that was more restrictive of the plaintiff's rights than justified by any provision of the Act.
Justice Health contends that: first, on a fair reading of its Reasons for Decision, the Tribunal cannot be said, in fact, to have acted on any presumption such as that alleged; secondly, the Tribunal did not, in any respect, err in law; and, thirdly, the weight to be given by the Tribunal to medical evidence before it, including evidence of a patient's treating doctors, is a matter for the Tribunal.
Justice Health submits that the Court should order that the plaintiff be granted leave to appeal, limited to the question of law here identified, but the appeal should be dismissed.
With the consent of both sides of the record, the plaintiff's application for leave to appeal and any appeal consequent upon a grant of leave were heard concurrently.
The parties agreed that, if it were to conclude that the Tribunal erred in law, the Court should order that the Tribunal's determination be set aside and that the proceedings be remitted to the Tribunal for determination according to law.
The parties also agreed that, whatever orders might be made in disposition of the proceedings, no orders as to costs were to be made.
FACTUAL BACKGROUND
The plaintiff's engagement with the NSW legal system commenced on 18 January 2002. On that date he set fire to premises where he worked, resulting in the death of a fellow employee and extensive damage to the premises. He was charged with the murder of the deceased, and with maliciously damaging property by fire with intent to endanger life.
On 1 May 2003 a judge determined, pursuant to the Mental Health (Forensic Provisions) Act, that the plaintiff was unfit to be tried. Cf, R v Mailes (2001) 53 NSLR 251.
In accordance with s 14 of the Act he was referred to the Tribunal.
On 19 May 2003 the Tribunal determined, pursuant to s 16 of the Act, that, on the balance of probabilities, the plaintiff would not, during the period of 12 months after the finding of unfitness, become fit to be tried for the offences with which he was charged.
On 8 July 2003 the Attorney-General directed that there be a "special hearing" (within the meaning of ss 4(1) and 19(2) of the Act) for the purpose of ensuring, despite the unfitness of the plaintiff to be tried in accordance with normal procedures, that he be acquitted unless it could be proved to the requisite criminal standard of proof that, on the limited evidence available, he had committed the offences charged against him or another offence available as an alternative to those charges.
Except as provided by the Act, a special hearing is conducted as nearly as possible as if it were a trial of criminal proceedings: s 21. Unless an election is made for a special hearing to be determined by a jury, it is determined by a judge sitting alone: ss 21A-21B. In this case, it was determined by a jury.
After a special hearing commencing on 3 March 2004, on 19 March 2004 a jury returned a verdict, that included, in relation to particular charges, a finding that the plaintiff was "not guilty on the ground of mental illness": s 22(1)(b).
That verdict is taken, by virtue of s 22(2), to have been the equivalent for all purposes to a special verdict, on a trial by indictment, that an accused person is not guilty by reason of mental illness under s 38.
To similar effect, s 25 provides that "a special verdict that [an] accused person is not guilty by reason of mental illness" carries a consequence that "the person is thereafter to be dealt with and an order may be made under [the Mental Health (Forensic Provisions) Act] in respect of the person as if [the special verdict had been returned] at a normal trial of criminal proceedings.
Section 38(2) provides that "[if] a special verdict of not guilty by reason of mental illness is returned ... the Court may remand the person [the subject of the verdict] in custody until the making of an order under s 39 in respect to the person".
Section 39 reads as follows:
"39 Effect of finding and declaration of mental illness
(1) If, on the trial of a person charged with an offence, the jury returns a special verdict that the accused person is not guilty by reason of mental illness, the Court may order that the person be detained in such place and in such manner as the Court thinks fit until released by due process of law or may make such other order (including an order releasing the person from custody, either unconditionally or subject to conditions) as the Court considers appropriate.
(2) The Court is not to make an order under this section for the release of a person from custody unless it is satisfied, on the balance of probabilities, that the safety of the person or any member of the public will not be seriously endangered by the person's release.
(3) As soon as practicable after the making of an order under this section, the Registrar of the Court is to notify the Minister for Health and the Tribunal of the terms of the order."
Section 39 arises for consideration following an acquittal. Legally, the accused is not to blame for his or her actions and is not to be punished for them. The power to make an order under s 39 is protective (of the accused, others and the community generally), not punitive: Attorney-General of NSW v X [2013] NSWSC 1392 at [87]-[91], citing, inter alia, R v SE [2009] NSWSC 785 at [67].
By this route, the plaintiff engaged Part 5 (ss 40-76K) of the Mental Health (Forensic Provisions) Act, including the decision-making procedures for which ss 46-47 of the Act provide.
On 19 March 2004, in accordance with s 39, a judge ordered that the plaintiff be detained at Ward D of the Long Bay Prison Hospital until released by due process of law.
On 12 April 2007 the Court of Criminal Appeal dismissed his appeal from the orders made at the special hearing.
On 23 March 2009 an executive order was made, pursuant to ss 76D-76E of the Mental Health (Forensic Provisions) Act, that he be transferred from the Long Bay Prison Hospital to the Forensic Hospital, a "mental health facility" for the purpose of the Act. The current order governing his detention was made by the Tribunal on 27 August 2009.
THE CONSTITUTION OF THE MENTAL HEALTH REVIEW TRIBUNAL
Constituted by s 140 (in ch 6) of the Mental Health Act, the Tribunal is a creature of statute, without inherent powers, but with, in addition to express powers, implied authority to uphold, protect and fulfil the functions conferred on it by statute: Harry v Mental Health Review Tribunal (1994) 33 NSWLR 315 at 321G-322B.
Section 140(2) of the Mental Health Act provides that the Tribunal has the functions conferred or imposed on it by or under that Act or any other law.
Those functions include:
(a) the conduct of reviews of the respective cases of forensic patients pursuant to Part 5 of the Mental Health (Forensic Provisions) Act.
(b) consideration, under Part 4.1 of ch 4 (especially s 45) of the NSW Trustee and Guardian Act 2009 NSW, of whether a forensic patient is capable of managing his or her own affairs without the appointment of a financial manager (customarily, by operation of ss 46 and 52, the NSW Trustee).
The legislation governing the Tribunal must be construed purposively to ensure that, so far as possible, its beneficial objects are achieved: Harry v Mental Health Review Tribunal at 33 NSWLR 321 E-F, 333 - D and 342 E-F.
The Tribunal is both guided, and constrained, by various legislative statements of objects to be achieved, principles to be applied and factors to be taken into account, including:
(a) in the Mental Health Act, ss 3, 68 and 105, read with s 195;
(b) in the Mental Health (Forensic Provisions) Act, s 40 and 74; and
(c) in the NSW Trustee and Guardian Act, s 39.
Of these, the most prominent for present purposes are ss 68 of the Mental Health Act and ss 40 and 74 of the Mental Health (Forensic Provisions) Act. Those provisions were directly applicable to the Tribunal's consideration of the plaintiff's application for a prohibition order in the conduct of the s 46 review that gave rise to the current proceedings.
It is those provisions to which the parties have given particular attention. It is those provisions that, here, attention must first be given.
LEGISLATIVE OBJECTS, PRINCIPLES AND FACTORS
Section 40 of the Mental Health (Forensic Provisions) Act provides that the objects of Part 5 of the Act are as follows:
(a) to protect the safety of members of the public,
(b) to provide for the care, treatment and control of persons subject to criminal proceedings who are suffering from a mental illness or mental condition,
(c) to facilitate the care, treatment and control of any of those persons in correctional centres through community treatment orders,
(d) to facilitate the provision of hospital care or care in the community through community treatment orders for any of those persons who require involuntary treatment,
(e) to give an opportunity for those persons to have access to appropriate care.
A note to s 40 draws attention to s 68 of the Mental Health Act, which sets out general principles with respect to the treatment of all people with a mental illness or mental disorder.
Section 68 is in the following terms:
"68 Principles for care and treatment
It is the intention of Parliament that the following principles are, as far as practicable, to be given effect to with respect to the care and treatment of people with a mental illness or mental disorder:
(a) people with a mental illness or mental disorder should receive the best possible care and treatment in the least restrictive environment enabling the care and treatment to be effectively given,
(b) people with a mental illness or mental disorder should be provided with timely and high quality treatment and care in accordance with professionally accepted standards,
(c) the provision of care and treatment should be designed to assist people with a mental illness or mental disorder, wherever possible, to live, work and participate in the community,
(d) the prescription of medicine to a person with a mental illness or mental disorder should meet the health needs of the person and should be given only for therapeutic or diagnostic needs and not as a punishment or for the convenience of others,
(e) people with a mental illness or mental disorder should be provided with appropriate information about treatment, treatment alternatives and the effects of treatment,
(f) any restriction on the liberty of patients and other people with a mental illness or mental disorder and any interference with their rights, dignity and self-respect is to be kept to the minimum necessary in the circumstances,
(g) the age-related, gender-related, religious, cultural, language and other special needs of people with a mental illness or mental disorder should be recognised,
(h) every effort that is reasonably practicable should be made to involve persons with a mental illness or mental disorder in the development of treatment plans and plans for ongoing care,
(i) people with a mental illness or mental disorder should be informed of their legal rights and other entitlements under this Act and all reasonable efforts should be made to ensure the information is given in the language, mode of communication or terms that they are most likely to understand,
(j) the role of carers for people with a mental illness or mental disorder and their rights to be kept informed should be given effect."
In the context of these proceedings, those two sections (s 40 of the Mental Health (Forensic Provisions) Act and s 68 of the Mental Health Act) must be read with s 74 of the Mental Health (Forensic Provisions) Act 1990.
That section mandates matters required to be taken into account by the Tribunal when determining what order to make about a forensic patient under s 47. It is in the following terms:
"74 Matters for consideration
Without limiting any other matters the Tribunal may consider, the Tribunal must have regard to the following matters when determining what order to make about a person under this Part:
(a) whether the person is suffering from a mental illness or other mental condition,
(b) whether there are reasonable grounds for believing that care, treatment or control of the person is necessary for the person's own protection from serious harm or the protection of others from serious harm,
(c) the continuing condition of the person, including any likely deterioration in the person's condition, and the likely effects of any such deterioration,
(d) in the case of a proposed release, a report by a forensic psychiatrist or other person of a class prescribed by the regulations, who is not currently involved in treating the person, as to the condition of the person and whether the safety of the person or any member of the public will be seriously endangered by the person's release,
(e) in the case of the proposed release of a forensic patient subject to a limiting term, whether or not the patient has spent sufficient time in custody."
Section 76B(1) of the Mental Health (Forensic Provisions) Act provides that "[to] avoid doubt, the principles set out in s 68 (Principles for care and treatment) of the Mental Health Act 2007 apply, subject to [the Mental Health (Forensic Provisions) Act] or any other Act or law, to the administration of [Part 5 of the Mental Health (Forensic Provisions) Act] with respect to forensic patients...."
Section 76B(5) provides that s 195 of the Mental Health Act applies to the provisions of s 40 of the Mental Health (Forensic Provisions) Act and s 68 of the Mental Health Act (as applied by s 76B(1) of the Mental Health (Forensic Provisions) Act).
Section 195 of the Mental Health Act (entitled "Role of Objects Provisions") provides that the provisions of s 68 of that Act "are intended to give guidance in the administration of [the Mental Health Act] and do not create, or confer on any person, any right or entitlement enforceable at law." That declaration of intent applies equally to ss 3 and 105 of the Act, to which further reference will be made in due course.
MENTAL HEALTH REVIEW TRIBUNAL "REVIEWS THE CASE" OF A "FORENSIC PATIENT"
Within this framework, attention returns to ss 46 and 47 of the Mental Health (Forensic Provisions) Act. They are in the following terms:
"46 Further reviews by Tribunal of forensic patients
(1) The Tribunal must review the case of each forensic patient every 6 months but may review the case of any forensic patient at any time.
(2) The Tribunal must review the case of a forensic patient if requested to do so by the Minister for Health, the Attorney General, the Minister for Justice, the Minister for Juvenile Justice, the Director-General or the medical superintendent of the mental health facility in which the patient is detained.
(3) The Tribunal must review the case of each forensic patient who is subject to a community treatment order, and who is detained in a correctional centre, every 3 months.
(4) The period within which a particular review under this section (other than a review of the case of a forensic patient who is subject to an extension order) must be held may, on the motion of the Tribunal or on the application of the patient or the primary carer of the patient, be extended by the Tribunal to a maximum of 12 months.
(5) The Tribunal may grant an application to extend the review period if it is satisfied that:
(a) there are reasonable grounds to grant the application, or
(b) an earlier review is not required because:
(i) there has been no change since the last review in the patient's condition, and
(ii) there is no apparent need for any change in existing orders relating to the patient, and
(iii) an earlier review may be detrimental to the condition of the patient.
47 Orders and recommendations on further Tribunal reviews
(1) The Tribunal may, after reviewing the case of a forensic patient under section 46, make an order as to:
(a) the patient's continued detention, care or treatment in a mental health facility, correctional centre or other place, or
(b) the patient's release (either unconditionally or subject to conditions).
(2) The Tribunal must not make an order as to the release of a forensic patient if the patient is a person who has been remanded in custody pending the person's return to court but may make a recommendation to the court as to the person's release.
(2A) The Tribunal must not make an order as to the release, unconditionally, of a forensic patient who is subject to an extension order but may make a recommendation to the Supreme Court as to the variation or revocation of the extension order.
(3) An order for release under this section may be made despite any other provision of this Act or any order of a court under this Act.
(4) On reviewing under section 46 the case of a forensic patient who is subject to a finding that the person is unfit to be tried for an offence, the Tribunal must make a recommendation as to the fitness of the patient to be tried for an offence.
(5) The Tribunal must notify the court that made the finding of unfitness and the Director of Public Prosecutions if, on a review, the Tribunal is of the opinion that the person:
(a) has become fit to be tried for an offence, or
(b) has not become fit to be tried for an offence and will not, during the period of 12 months after the finding of unfitness by the court, become fit to be tried for the offence [Emphasis added]."
The Mental Health (Forensic Provisions) Act contains no definition of the word "review", the term "review the case of a forensic patient" or derivatives of either expression.
The word "review" has no settled pre-determined meaning; it takes its meaning from the context in which it appears: Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 261; Tasty Chicks Pty Limited v Commissioner of State Revenue (NSW) (2011) 245 CLR 446 at 450[5].
In the present context, the word "review" is not used in contra-distinction to the word "appeal", as often it is.
Its use is, rather, closer to that of a synonym for the word "survey" and, placed within the expression "review the case of a forensic patient", it conveys the idea of a fresh (albeit perhaps, depending on prevailing circumstances, a limited rather than a general) consideration of the personal circumstances of a forensic patient.
A review under s 46 of the Mental Health (Forensic Provisions) Act is for the purpose of consideration by the Tribunal of whether to make any (and, if so, what) orders under s 47 of the Act concerning, in the present proceedings, a forensic patient's detention, care or treatment: A v Mental Health Review Tribunal [2012] NSWSC 293 at [12].
The nature and scope of a particular s 46 review will depend on perceptions of the Tribunal, and others (including the forensic patient) then involved in the detention, care or treatment of the patient, about issues touching on the status or welfare of the patient.
A s 46 review provides an occasion for the Tribunal to investigate a forensic patient's personal circumstances and, as the nature of the case may require, to supervise his or her "detention, care or treatment in a mental health facility".
The review process is not adversarial but, as these proceedings illustrate, the Tribunal may invite debate in its identification, definition and solution of any problems that might be thrown up for consideration. In this sense only, the process is a hybrid, not simply investigative or adversarial in nature: In the matter of a Forensic Patient v Mental Health Review Tribunal and the Attorney-General (NSW) (Foster J, 17 July 1987, unrep), pp 11 and 13-14. A forensic patient the subject of a review may be (and is perhaps expected to be) an active participant in the process, not merely a subject of inquiry.
The fact that a forensic patient may be a participant in the review process, and adopt an adversarial stance, does not render the true nature of the process adversarial. The public interest, protective and administrative aspects of the process, coupled with the incapacity of the patient, stand in the way of characterisation of a review as truly adversarial.
No participant in a review bears an onus of proof of the type encountered in ordinary civil or criminal proceedings between parties of full capacity: M Aronson and M Groves, Judicial Review of Administrative Action (Law Book Co, 5th ed, 2013) para [4.130]. Cf, SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 164 [40]; Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at 16 [39] - 17 [40].
There is no room for presumptions which may, unwittingly, serve as a surrogate for the imposition of an onus of proof as a gloss on the Tribunal's governing legislation.
By its nature, an exercise of protective jurisdiction differs, for example, from an exercise of equity jurisdiction. Whereas "Chancery" practice is directed to litigation, protective jurisdiction is directed to administration: HS Theobald, The law relating to Lunacy (1924) p 382. Subject to the terms of the Tribunal's governing legislation, the same is true of the review process for which ss 46(1) and 47(1)(a) of the Mental Health (Forensic Provisions) Act provide.
Nevertheless, operating within the terms of that legislation, it is incumbent on the Tribunal to remain conscious of the status and antecedents of a forensic patient. In assessing the current personal circumstances of a patient, the Tribunal can have regard to his or her history of engagement with the law and the Tribunal's accumulated store of knowledge about him or her. Although the issues identified for consideration in the course of a particular review may extend to any, and every, aspect of a patient's "case" they need not: Cf, SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 164 [40].
The provision in s 46 for regular, periodic reviews is consistent with the Tribunal focussing on particular aspects of a forensic patient's "case" in particular reviews, mindful always of a need to place them in a broader context.
By virtue of s 73, the functions of the Tribunal under the Mental Health (Forensic Provisions) Act are exercised by the Forensic Division of the Tribunal. It comprises the President, or a Deputy President, of the Tribunal (effectively a judge or former judge of the Supreme Court, or the District Court of NSW, or an equivalent); a member who is a psychiatrist, a registered psychologist or other suitable expert in relation to a mental condition; and a member who has other suitable qualifications or experience.
Section 76A(1) of the Act provides that "[for] the purposes of a review, the Tribunal may communicate with any persons, take any action and make any recommendations it thinks fit. [Emphasis added]"
This provision supplements the provisions of Chapter 6 of the Mental Health Act 2007, Part 2 of which deals with procedures of the Tribunal. That Part applies, by s 149 of the Mental Health Act, to any proceedings of the Tribunal under the Mental Health (Forensic Provisions) Act.
The procedures for which Chapter 6 Part 2 provides include the following:
(a) Meetings of the Tribunal are to be conducted with as little formality and technicality, and with as much expedition, as the requirements of the Mental Health Act, Mental Health (Forensic Provisions) Act, regulations and the proper consideration of the matters before the Tribunal permit: s 151(1).
(b) In determining any matter relating, inter alia, to a forensic patient the Tribunal is not bound by the rules of evidence but may inform itself of any matter in such manner as it thinks appropriate and as the proper consideration of the matter before it permits: s 151(2).
(c) Subject to Chapter 6 Part 2 and regulations made under the Mental Health Act, the procedure for the calling of, and for the conduct of business at, any meeting of the Tribunal is to be determined by the Tribunal: s 160(1).
The current proceedings focus particularly on the Mental Health (Forensic Patients) Act, ss 46(1) and 47(1)(a).
Key elements in those provisions are:
(a) the expressions "review the case" and "forensic patient" in s 46(1);
(b) the expression "continued detention, care or treatment" in s 47(1)(a); and
(c) the word "may" in s 47(1).
At a high level of abstraction the first two expressions, together, define the task of the Tribunal leading to the determination under challenge in these proceedings, and implicitly illustrate the nature of the Tribunal's jurisdiction.
The word "may" serves as a connector between the first two expressions. The purpose of a "review" is for the Tribunal to decide whether to make any (and, if so, what) orders under s 47(1).
As it was common ground in the Tribunal that the plaintiff's release from detention was neither sought nor appropriate, the present focus, within s 47(1), is and was at all material times on s 47(1)(a).
Taking a narrow perspective, focussing on the terms of s 46(1) and s 47(1)(a) without exegesis, those provisions appear to confer on the Tribunal an unfettered discretion about whether to make any order at all.
Read literally, s 74 could be construed as confined to a consideration of what order to make under s 47(1), not touching upon the threshold question of whether to make an order. Such a literal interpretation should be eschewed. Nevertheless, the implications of the word "may" need to be drawn out in order to determine the criteria to be applied by the Tribunal in deciding whether to make a s 47(1) order and, if so, the particular order to be made.
The Interpretation Act 1987 NSW provides some assistance. Section 9(1) provides, inter alia, that in any Act of the NSW Parliament the word "may", if used to confer a power, indicates that the power may be exercised or not, at discretion. Section 33 of the same Act provides, inter alia, that in the interpretation of an Act a construction that would promote the purpose or object underlying the Act (whether or not that purpose or object is expressly stated in the Act) shall be preferred to a construction that would not promote that purpose or object. Returning to s 9(2) we find that the word "shall", if used to impose a duty, indicates that the duty must be performed.
Quite apart from ss 9 and 33, the temper of the times generally favours a purposive construction: eg, A Barak, Purposive Interpretation in Law (Princeton UP, 2005).
In the context of s 47(1) the word "may" imports a discretionary value judgment, but not an unfettered discretion.
Several points about the nature of that discretion are worthy of notice.
First, the nature and purpose of a discretionary power may mandate that , if specified criteria are satisfied, the decision maker in which the power resides must exercise the discretion conferred upon it. In context, "may" can mean "must": Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 at 222; Ward v Williams (1955) 92 CLR 496 at 505-506; Finance Facilities Pty Limited v Federal Commissioner of Taxation (1971) 127 CLR 106 at 134-135 and 138-139.
There may be reviews undertaken by the Tribunal in which the evidence before, or available to, the Tribunal compels a particular outcome because to proceed otherwise would be manifestly unreasonable, or otherwise to err; but, subject to that possibility, the discretion for which s 47(1)(a) provides is at large: "may" does not here mean "must".
Secondly, where a legislative decision-making power provides no positive indication of the considerations by reference to which a determination is to be made under or by reference to that power, the general discretion ostensibly conferred on the decision-maker is confined only by the scope and purposes of the legislation governing the Tribunal's operations: Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 504-505 applied, inter alia, in O'Sullivan v Farrer (1989) 168 CLR 210 at 216, Osland v Secretary, Department of Justice [No 2] (2010) 241 CLR 320 at 329 [13] and Hogan v Hinch (2011) 243 CLR 506 at 536 [31] and 548 [69].
That is not the position with s 47(1)(a) in the context of a general review under s 46(1). The Tribunal's decision-making under those sections is guided, at least, by the statement of objects enumerated in s 40 of the Mental Health (Forensic Provisions) Act and the statement of "principles for care and treatment" enumerated in s 68 of the Mental Health Act, as well as constrained by the matters to which (under s74 of the Mental Health (Forensic Provisions) Act) regard must be had by the Tribunal when determining what order to make about a forensic patient under s 47(1)(a).
Nevertheless, a need to be mindful of the importance to the Tribunal of consulting the subject matter, scope and purpose of its governing legislation arises from:
(a) the high level of abstraction of the objects, principles and factors identified in the purposive provisions affecting it;
(b) the broad nature of a s 46 "review", incorporating a need to consult the availability of alternative arrangements for the care and treatment of a forensic patient; and
(c) the need, in an appropriate case, to have regard to a range of purposive provisions, not limited to s 68 of the Mental Health Act and ss 70 and 74 of the Mental Health (Forensic Provisions) Act.
To the extent that a decision may be characterised as extraneous to any objects Parliament could have had in view, a decision of the Tribunal will be open to challenge.
Thirdly, the generality of the statements of objects, principles and factors made in the Tribunal's governing legislation reflects an intention on the part of Parliament to leave to the Tribunal, upon the conduct of a s 46 review, scope to give effect, by a process of reasoning applied to investigation of facts and due consideration to the legislation's purposive element, to its view of the justice of the particular case: Minister for Immigration and Citizenship v Li [2013] HCA 18; 86 ALJR 618 at [23], citing Klein v Domus Pty Ltd (1963) 109 CLR 467 at 473.
Fourthly, the justice of a particular case and, accordingly, the nature of a determination to be made by the Tribunal may take colour from the subject matter of the particular decision. For example, a decision that calls for consideration of a person's ongoing status as a "forensic patient" may need to be approached differently from a decision about management of the "care or treatment" of a person within the parameters of his or her status as a forensic patient. This is seen, explicitly, in provisions of the Mental Health (Forensic Provisions) Act that contemplate that a forensic patient may be released from detention or may have been unfit to be tried for an offence.
THE TRIBUNAL'S WORK IS GOVERNED BY PURPOSE
General Indicators of Purposive Jurisdiction
There is no shortage of indicators that the work of the Tribunal is governed by considerations of "purpose".
That is so whether one defines that work in terms of function, power, authority or duty.
The Mental Health (Forensic Provisions) Act includes, in s 3(3), an express statement that, in the Act, a reference to a function includes a reference to a power, authority and duty, and a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty.
There are at least six levels of indication that the work of the Tribunal is governed by "purpose".
First there are express statutory provisions framed in terms of "purpose". The Mental Health (Forensic Provisions) Act, ss 40 and 74, read with the Mental Health Act, s 68 are the principal provisions; but, amongst others, the NSW Trustee and Guardianship Act, s 39 requires particular notice.
Secondly, ss 46 and 47, and other legislative provisions that must be consulted on an exposition of them, use language that imports general law concepts (relating to the "inherent", protective jurisdiction of the Supreme Court) long viewed as purposive in character.
Thirdly, there is the provision of a statutory appeal to the Supreme Court (via the Mental Health (Forensic Provisions) Act, s 77A) in terms which are both flexible and consistent with the breadth of the Court's inherent jurisdiction, preserved by the legislation governing the Tribunal. Decisions made by the Court in disposition of an appeal are bound to be influenced by the availability of the Court's inherent protective jurisdiction.
Fourthly, allowance must be made for the nature of the social problems (focussing upon the detention, care and treatment of an indeterminate number, and variety, of individuals affected by mental illness) routinely required to be addressed by the Tribunal.
Those problems fall to be determined against the background of the common law's entrenched concern for the protection of civil liberties, especially in relation to medical treatment. The norm is that a prerequisite to the medical treatment of an individual is a need for the individual's consent to that treatment: Rogers v Whitaker (1992) 175 CLR 479 at 489.
Forced medical treatment is exceptional; but, subject to procedural safeguards, permissible when justified by necessities recognised by the law: Harry v Mental Health Review Tribunal (1994) 33 NSWLR 315 at 323E, 322G-333F and 334B-335D. One of those recognised necessities is accommodated by the protective jurisdiction of the Court (historically, as a delegate of the Crown), in dealing with a person in need of protection, by requiring that any medical intervention be for the benefit, and in the best interests, of the protected person: E (Mrs) v Eve (better known as "Re Eve") [1986] 2 SCR 388 at 410-411, 425-427, 429-430 and 437; 31 DLR (4th) 1 at 16-17, 28-29, 31 and 36, approved in Marion's Case (Secretary, Department of Health and Community Services v JWB and SMB) (1992) 175 CLR 218 at 258-260 and followed in Christensen v Christensen (Queensland Court of Appeal, 2 July 1999) BC 9904473 at [18]-[19].
Fifthly, the constitution of the Tribunal, by its Forensic Division, when exercising functions under the Mental Health (Forensic Provisions) Act points to purpose in identification of the qualifications of members. Significance may attach to the character of the Tribunal as a specialist body upon consideration by the Court of a challenge to its determinations: A by his Tutor Brett Anthony Collins v Mental Health Review Tribunal and Anor [2010] NSWSC 1363 at [56]-[59]; Attorney General of NSW v X [2013] NSWSC 1392 at [93]-[98].
Sixthly, the work undertaken by the Tribunal under ss 46-47 is predicated upon an antecedent legal determination that: (a) the person whose case is under review is, or may be, a danger to both self and others; (b) he or she is a person in need of protection; and (c) he or she is a person for whom detention, care and treatment by the State may reasonably be a necessity.
The s 47(1) order made by the Tribunal on 27 August 2009 for the plaintiff to be detained in the Long Bay Forensic Hospital is itself expressed in purposive terms. The plaintiff is to be detained there "to receive care and treatment".
The Statutory Principles, Objects and Factors
In the context of a determination made under s 47(1) of the Mental Health (Forensic Provisions) Act, after a s 46(1) review, ss 40 and 74 of that Act and s 68 of the Mental Health Act must be read together.
By virtue of ss 76B(1) and (5) of the Mental Health (Forensic Provisions) Act, and s 195 of the Mental Health Act, s 40 of the former Act and s 68 of the latter provide "guidance in the administration" of the Mental Health (Forensic Provisions) Act and "do not create, or confer on any person, any right or entitlement enforceable at law".
Section 74 of the Mental Health (Forensic Provisions) Act is in a different category because: (a) its subject matter relates expressly to factors to be taken into account in decision making, rather than "objects" or "principles" in the nature of guidelines; (b) the "matters" identified in s 74 have a mandatory flavour because the section provides that the Tribunal "must" have regard to them; and (c) in an appropriate case, the obligation of the Tribunal to have regard to those matters might be enforceable by a grant of relief by the Court (pursuant to the Supreme Court Act 1970 NSW, ss 65 and 69) in the nature of relief historically available via the issue of a prerogative writ.
Upon a closer consideration, each of s 40 and s 68 has separate work to do.
Section 68 provides principles that "are, as far as practicable, to be given effect to with respect to the care and treatment of people with a mental illness or mental disorder" in the context of the Mental Health Act no less than in the context of the Mental Health (Forensic Provisions) Act.
Those principles apply, for example, not only to the Tribunal in the performance of its work under Part 5 of the Mental Health (Forensic Provisions) Act, but also to the performance of work by the "authorised medical officers" (as defined by s 4(1) of the Mental Health Act) who constitute "the treating team" whose views about the care and treatment of the plaintiff were upheld by the Tribunal in the determination under challenge in these proceedings.
Although protected from personal liability for any injury or damage caused by the performance of his or her functions in good faith (Mental Health Act, s 191), an authorised medical officer, and other persons employed at a mental health facility, are liable to criminal prosecution in the event that they "wilfully strike, wound, ill-treat or neglect a patient or person detained" at the facility: Mental Health Act, s 69. The principles for which s 68 of that Act, and the provisions of s 40 and 74 of the Mental Health (Forensic Provisions) Act, provide may inform an assessment of what constitutes ill treatment of a patient or detainee.
The key to s 69 appears to be the word "wilfully", in combination with words that coalesce around the word "ill-treat", in the text of the section. "Ill-treat" is also the key word in the heading to the section: "Offence to ill-treat patients".
The word "wilful" generally imports a state of mind that is either deliberate or recklessly indifferent vis á vis conduct having a particular purpose or effect: eg, Re Hodgekiss (1959) 62 SR (NSW) 340 at 352-354, citing In Re City Equitable Fire Insurance Co Limited [1925] 1 Ch 407 at 434.
The concept of a patient being "ill treated" implicitly interrelates with other legislative provisions that require, or allow, a patient to be the subject of "care", "treatment", or "control".
Section 68 of the Mental Health Act speaks of "care and treatment". Sections 40 and 74 of the Mental Health (Forensic Provisions) Act speak of "care, treatment [and/or] control".
Section 40 of the Mental Health (Forensic Provisions) Act sits comfortably with s 68 of the Mental Health Act but, implicitly, involves a subtle shift in emphasis. That is seen in use of the word "control" in combination with the concept of "care and treatment" and in the express identification of the object of protecting the safety of members of the public as the first of five specified objects.
A forensic patient is, by definition, a person who may be a danger to the public, if not to self. Section 43 of the Mental Health (Forensic Provisions) Act expressly identifies "criteria" referable to the release of a forensic patient from detention. It provides that the Tribunal must not make an order for release unless it is satisfied, on the evidence available to it, that: (a) the safety of the patient or any member of the public will not be seriously endangered by the patient's release; and (b) other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the patient or that the patient does not require care. A similar concern, for the protection of both a forensic patient and others from serious harm, is found in s 74(b).
Taken together, ss 40 and 74 of the Mental Health (Forensic Provisions) Act and s 68 of the Mental Health Act provide a list of topics which, depending upon the facts of the particular case, may provide what might loosely (albeit inaccurately) be described as a "check list" of topics to be consulted upon the conduct of a review under s 46(1), or upon the making of a determination under s 47(1)(a) of the Mental Health (Forensic Provisions) Act.
The comparative significance of those topics, and the weight to be given to particular facts examined in the context of them, are likely to vary from case to case.
A central informing idea
The significance of the topics prescribed for particular attention in the context of a review governed by ss 46(1) and 47(1)(a) of the Mental Health (Forensic Provisions) Act cannot be determined by reference only to ss 40 and 74 of that Act and s 68 of the Mental Health Act.
Implicit in those provisions, and in the legislation that governs the work of the Tribunal generally, is a central idea that operates as a working assumption upon which all else is founded. It informs the construction and operation of the Mental Health Act, the Mental Health (Forensic Provisions) Act and chapter 4 of the NSW Trustee and Guardian Act insofar as that legislation relates to the protection or care of a person who is, or may be, mentally incompetent, or more generally, incapable of managing his or her affairs.
The foundational idea is that the protection and care to which such a person is, or may be, entitled is to be provided, and assessed, primarily by reference to the welfare of the person in need of protection: by reference, more particularly, to whether it is for the benefit, and in the best interests, of that person.
It is a "working assumption" because, in a particular case, measures designed to promote the interests of a person in need of protection may need to accommodate a competing need for protection of others or the community generally.
Sections 40 and 74 of the Mental Health (Forensic Provisions) Act and s 68 of the Mental Health Act serve as more than a checklist of considerations relevant to the operation of ss 46(1) and 47(1)(a) of the Mental Health (Forensic Provisions) Act.
They are: (a) part of a legislative affirmation of the principles that inform any exercise (by the Court as a delegate of the Crown and, more generally, by the State) of parens patriae jurisdiction; and (b) an adoption of those principles for administrative decision making, and administrative law, purposes as a standard that brings coherence to decision making across the spectrum of decision makers providing protection and care for persons in need of protection.
CONCLUSION
Nothing brought to the attention of the Court in the course of these proceedings provides a foundation for anything other than an order that the proceedings be dismissed. In particular, there is nothing in the materials before the Court that invites consideration of an exercise of protective jurisdiction independently of the Mental Health (Forensic Provisions) Act, s 77A(1).
Even if (contrary to my findings) the Tribunal did err in law, any error it made in preferring the evidence of the plaintiff's treating psychiatrist over the evidence of his forensic psychiatrist would not, of itself, justify an order under s 77A(9) for appellate intervention or an invocation of the Court's inherent protective jurisdiction.
Accepting the parties' agreement that there be no order as to the costs of the proceedings, the only order required to be made in disposition of the proceedings was an order that the plaintiff's amended summons be dismissed.
That order for dismissal had the effect that the interlocutory injunction granted by the Chief Judge was discharged.
I note, in concluding, that, in accordance with s 46 of the Mental Health (Forensic Provisions) Act, the Tribunal remains seized of a duty, and power, to review the plaintiff's detention, care and treatment on a regular basis and by reference to evidence available at the time of each review.
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Decision last updated: 07 February 2014