AB and MENTAL HEALTH TRIBUNAL
[2016] WASAT 71
•15 JUNE 2016
AB and MENTAL HEALTH TRIBUNAL [2016] WASAT 71
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2016] WASAT 71 | |
| MENTAL HEALTH ACT 2014 (WA) | |||
| Case No: | MHA:2/2016 | 29 MARCH AND 9 MAY 2016 | |
| Coram: | MR J MANSVELD (SENIOR MEMBER) MS M CONNOR (MEMBER) DR F NG (SENIOR SESSIONAL MEMBER) | 15/06/16 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Community treatment order to remain in effect | ||
| B | |||
| PDF Version |
| Parties: | AB MENTAL HEALTH TRIBUNAL |
Catchwords: | Mental health Mental Health Act 1996 Mental Health Act 2014 Mental illness Paranoid schizophrenia Persecutory delusions Community treatment order Transitional provisions of the Mental Health Act 2014 Mental Health Tribunal Review jurisdiction of the State Administrative Tribunal Mental illness in need of treatment Significant risk to health or safety Significant risk of suffering serious physical or mental deterioration Incapacity to make treatment decisions Treatment can reasonably be provided in the community No less restrictive alternative to the making of a community treatment order |
Legislation: | Mental Health Act 1996 (WA) Mental Health Act 2014 (WA), s 4, s 6, s 18, s 21, s 23, s 25(2), s 25(3), s 121, s 386, s 390, s 391, s 394, s 394(1), s 395, s 494, s 494(1), s 547(1)(a), s 623 State Administrative Tribunal Act 2004 (WA), s 25(2), s 27, s 29, s 29(2), Pt 3, Div 3 |
Case References: | LS v Mental Health Review Board [2013] WASCA 128 |
Summary | AB is a 68yearold man who had been diagnosed with a longstanding mental illness. He lived in the sand dunes of a local beach and had done so for over five years.,The primary symptoms of the mental illness were persecutory delusions.,AB said he did not have a mental illness and believed the diagnosis of the mental illness was as a consequence of a government conspiracy in which the psychiatrist of the mental health team played a part.,In November 2015, the mental health team observed a decline in AB's functioning which was sufficient to consider active treatment for his mental illness.,AB declined the treatment and a community treatment order was made under the Mental Health Act 1996 (WA) to enforce treatment.,The Mental Health Act 1996 (WA) was subsequently repealed and replaced by the Mental Health Act 2014 (WA). ,A community treatment order made under the Mental Health Act 1996 (WA) was deemed to be a community treatment order made under the Mental Health Act 2014 (WA). ,AB sought review of the community treatment order and the order was confirmed by the Mental Health Tribunal.,The community treatment order was subsequently continued by way of a continuation order made under the Mental Health Act 2014 (WA). ,The Mental Health Tribunal confirmed the continuation order.,AB sought review of the decisions of the Mental Health Tribunal with the State Administrative Tribunal.,The State Administrative Tribunal found that AB continued to satisfy the requirements for the making of a community treatment order. In particular, that AB had a mental illness requiring treatment; that because of the mental illness there was a significant risk to the health and safety of AB and a significant risk of him suffering serious physical or mental deterioration; that AB did not demonstrate the capacity to consent to his treatment and that the treatment could be reasonably be provided in the community; and there was no less restrictive means by which treatment could be given. ,The State Administrative Tribunal decided that the community treatment order should remain in effect. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : MENTAL HEALTH ACT 2014 (WA) CITATION : AB and MENTAL HEALTH TRIBUNAL [2016] WASAT 71 MEMBER : MR J MANSVELD (SENIOR MEMBER)
- MS M CONNOR (MEMBER)
DR F NG (SENIOR SESSIONAL MEMBER)
- Applicant
AND
MENTAL HEALTH TRIBUNAL
Respondent
Catchwords:
Mental health - Mental Health Act 1996 - Mental Health Act 2014 - Mental illness - Paranoid schizophrenia - Persecutory delusions - Community treatment order - Transitional provisions of the Mental Health Act 2014 - Mental Health Tribunal - Review jurisdiction of the State Administrative Tribunal - Mental illness in need of treatment - Significant risk to health or safety - Significant risk of suffering serious physical or mental deterioration - Incapacity to make treatment decisions - Treatment can reasonably be provided in the community - No less restrictive alternative to the making of a community treatment order
Legislation:
Mental Health Act 1996 (WA)
Mental Health Act 2014 (WA), s 4, s 6, s 18, s 21, s 23, s 25(2), s 25(3), s 121, s 386, s 390, s 391, s 394, s 394(1), s 395, s 494, s 494(1), s 547(1)(a), s 623
State Administrative Tribunal Act 2004 (WA), s 25(2), s 27, s 29, s 29(2), Pt 3, Div 3
Result:
Community treatment order to remain in effect
Summary of Tribunal's decision:
AB is a 68yearold man who had been diagnosed with a longstanding mental illness. He lived in the sand dunes of a local beach and had done so for over five years.
The primary symptoms of the mental illness were persecutory delusions.
AB said he did not have a mental illness and believed the diagnosis of the mental illness was as a consequence of a government conspiracy in which the psychiatrist of the mental health team played a part.
In November 2015, the mental health team observed a decline in AB's functioning which was sufficient to consider active treatment for his mental illness.
AB declined the treatment and a community treatment order was made under the Mental Health Act 1996 (WA) to enforce treatment.
The Mental Health Act 1996 (WA) was subsequently repealed and replaced by the Mental Health Act 2014 (WA).
A community treatment order made under the Mental Health Act 1996 (WA) was deemed to be a community treatment order made under the Mental Health Act 2014 (WA).
AB sought review of the community treatment order and the order was confirmed by the Mental Health Tribunal.
The community treatment order was subsequently continued by way of a continuation order made under the Mental Health Act 2014 (WA).
The Mental Health Tribunal confirmed the continuation order.
AB sought review of the decisions of the Mental Health Tribunal with the State Administrative Tribunal.
The State Administrative Tribunal found that AB continued to satisfy the requirements for the making of a community treatment order. In particular, that AB had a mental illness requiring treatment; that because of the mental illness there was a significant risk to the health and safety of AB and a significant risk of him suffering serious physical or mental deterioration; that AB did not demonstrate the capacity to consent to his treatment and that the treatment could be reasonably be provided in the community; and there was no less restrictive means by which treatment could be given.
The State Administrative Tribunal decided that the community treatment order should remain in effect.
Category: B
Representation:
Counsel:
Applicant : N/A
Respondent : N/A
Solicitors:
Applicant : N/A
Respondent : N/A
Case(s) referred to in decision(s):
LS v Mental Health Review Board [2013] WASCA 128
Introduction
1 AB is a 68yearold man who has been diagnosed with a mental illness. He lives in the sand dunes of a local beach and has done so for over five years.
2 On 17 November 2015, AB was made an involuntary patient and placed on a Community Treatment Order (CTO) pursuant to the relevant provisions of the Mental Health Act 1996 (WA) (MHA 1996).
3 The CTO was set to finish on 16 February 2016.
4 Subsequent to the making of the CTO, the MHA 1996 was repealed and replaced by the Mental Health Act 2014 (WA) (MHA 2014) which commenced on 30 November 2015.
5 Under the transitional provisions of the MHA 2014, a CTO made under the MHA Act 1996 that was in force immediately before the 30 November 2015, is taken to be a CTO made under the MHA 2014 (s 623 of the MHA 2014).
6 AB sought a review of the CTO which was heard by the Mental Health Tribunal (MHT) on 8 January 2016.
7 The MHT decided that the CTO should remain in effect.
8 On 16 February 2016, the supervising psychiatrist made a continuation order under s 121 of the MHA 2014. This extended the CTO made on 17 November 2015 for a further three months, and was set to expire on 15 May 2016.
9 On 28 January 2016, AB sought review of the decision of the MHT by the State Administrative Tribunal (s 494(1) of the MHA 2014).
10 The Tribunal review was part heard on 29 March 2016 (first hearing) and was adjourned to enable AB to obtain a further psychiatric opinion. At that hearing, AB sought a stay of the decision of the MHT made on 8 January 2016, which was refused (s 25(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
11 In the course of the Tribunal review, the MHT again reviewed the CTO on 1 April 2016 and confirmed the order.
12 On 22 April 2016, AB sought review of the decision of the MHT made on 1 April 2016.
13 The final hearing of the Tribunal review was heard on 9 May 2016 (final hearing).
14 The Tribunal decided that the CTO should remain in effect.
15 The reasons for the decision follow.
MHA 2014
Mental illness defined
16 Section 6 of the MHA 2014 states that:
(1) A person has a mental illness if the person has a condition that
(a) is characterised by a disturbance of thought, mood, volition, perception, orientation or memory; and
(b) significantly impairs (temporarily or permanently) the person's judgment or behaviour.
(2) A person does not have a mental illness merely because one or more of these things apply
(a) the person holds, or refuses or fails to hold, a particular religious, cultural, political or philosophical belief or opinion;
(b) the person engages in, or refuses or fails to engage in, a particular religious, cultural or political activity;
(c) the person is, or is not, a member of a particular religious, cultural or racial group;
(d) the person has, or does not have, a particular political, economic or social status;
(e) the person has a particular sexual preference or orientation;
(f) the person is sexually promiscuous;
(g) the person engages in indecent, immoral or illegal conduct;
(h) the person has an intellectual disability;
(i) the person uses alcohol or other drugs;
(j) the person is involved in, or has been involved in, personal or professional conflict;
(k) the person engages in anti-social behaviour;
(l) the person has at any time been —
(i) provided with treatment; or
(ii) admitted by or detained at a hospital for the purpose of providing the person with treatment.
(4) A decision whether or not a person has a mental illness must be made in accordance with internationally accepted standards prescribed by the regulations for this subsection.
Treatment and treatment decision defined
17 Section 4 of the MHA 2014 defines treatment as:
the provision of a psychiatric, medical, psychological or psychosocial intervention intended (whether alone or in combination with one or more other therapeutic interventions) to alleviate or prevent the deterioration of a mental illness or a condition that is a consequence of a mental illness, and does not include bodily restraint, seclusion or sterilisation[.]
18 Treatment decision in relation to a person is defined in s 4 of the MHA 2014 as:
a decision to give consent, or to refuse to give consent, to treatment being provided to the person[.]
Determining capacity to make a treatment decision
19 Section 18 of the MHA 2014 states:
A person has the capacity to make a treatment decision about the provision of treatment to a patient if another person who is performing a function under this Act that requires that other person to determine that capacity is satisfied that the person has the capacity to
(a) understand the things that are required under section 19 to be communicated to the person about the treatment; and
(b) understand the matters involved in making the treatment decision; and
(c) understand the effect of the treatment decision; and
(d) weigh up the factors referred to in paragraphs (a), (b) and (c) for the purpose of making the treatment decision; and
(e) communicate the treatment decision in some way.
The making of a community treatment order (CTO)
20 In relation to an involuntary patient, s 21 of the MHA 2014 states:
(1) An involuntary patient is a person who is under an involuntary treatment order.
(2) An involuntary treatment order is
(a) an inpatient treatment order; or
(b) a community treatment order.
(1) A community treatment order is an order in force under this Act under which a person can be provided with treatment in the community without informed consent being given to the provision of the treatment.
(2) A community treatment order may be made under section 55(1)(b), 56(1)(a)(ii), 61(1)(b), 72(1)(b), 75(1), 89(2)(b) or 90(1)(a).
22 Section 25(2) and s 25(3) of the MHA 2014 provide that:
(2) A person is in need of a community treatment order only if all of these criteria are satisfied
(a) that the person has a mental illness for which the person is in need of treatment;
(b) that, because of the mental illness, there is
(i) a significant risk to the health or safety of the person or to the safety of another person; or
(ii) a significant risk of serious harm to the person or to another person; or
(iii) a significant risk of the person suffering serious physical or mental deterioration;
(c) that the person does not demonstrate the capacity required by section 18 to make a treatment decision about the provision of the treatment to himself or herself;
(d) that treatment in the community can reasonably be provided to the person;
(e) that the person cannot be adequately provided with treatment in a way that would involve less restriction on the person's freedom of choice and movement than making a community treatment order.
(3) A decision whether or not a person is in need of an inpatient treatment order or a community treatment order must be made having regard to the guidelines published under section 547(1)(a) for that purpose.
The making of a continuation order
23 Section 121 of the MHA 2014 provides that:
(1) The supervising psychiatrist may, on or within 7 days before the day on which a treatment period ends, make an order (a continuation order) continuing the community treatment order from the end of the treatment period for the further treatment period (not exceeding 3 months) that is specified in the continuation order.
(2) The supervising psychiatrist cannot make the continuation order without examining the involuntary community patient in accordance with Part 6 Division 3 Subdivision 6.
(3) The continuation order must be in the approved form and must include the following
(a) the date when it is made;
(b) the treatment period for which the community treatment order is continued;
(c) the date when, because of the continuation, the community treatment order will expire;
(d) the reasons for the continuation;
(e) the name, qualifications and signature of the supervising psychiatrist.
(4) The supervising psychiatrist must, as soon as practicable, file the continuation order and give a copy to the involuntary community patient.
(5) The involuntary community patient may request in writing the supervising psychiatrist to obtain the opinion (a further opinion) of another psychiatrist about whether it is appropriate to have continued the community treatment order by making the continuation order (but not whether the length of the treatment period specified in the continuation order is appropriate).
(6) Sections 182 and 184 apply (with the necessary changes) in relation to the further opinion.
(7) The continuation order does not come into force or ceases to be in force, as the case requires, if the further opinion
(a) is not obtained on or within 14 days after the day on which the involuntary community patient's request is received by the supervising psychiatrist; or
(b) does not confirm that it is appropriate to have continued the community treatment order.
(8) Subsection (7) does not apply if the further opinion is not obtained within the 14day period referred to in subsection (7)(a) because the involuntary community patient did not attend an examination to be conducted by the psychiatrist responsible for giving the further opinion.
The role of the MHT
24 Relevantly for the Tribunal review, the MHT reviews involuntary treatment orders (which include a CTO) within a defined review period (s 386 of the MHA 2014); upon application by certain prescribed people (s 390 of the MHA 2014) or on its own initiative (s 391 of MHA 2014).
25 In making a decision on a review in respect of an involuntary patient, the MHT must have regard to the things set out in s 394(1)(a) to (g) of the MHA Act 2014 which provides:
In making a decision on a review under this Division in respect of an involuntary patient, the Tribunal must have regard to these things
(a) if the involuntary patient is a child and the Tribunal is not constituted with a child and adolescent psychiatrist the views of a medical practitioner or mental health practitioner specified in subsection (2);
(b) the involuntary patient's psychiatric condition;
(c) the involuntary patient's medical and psychiatric history;
(d) the involuntary patient's treatment, support and discharge plan;
(e) the involuntary patient's wishes, to the extent that it is practicable to ascertain those wishes;
(f) the views of any carer, close family member or other personal support person of the involuntary patient;
(g) any other things that the Tribunal considers relevant to making the decision.
26 The orders and directions that the MHT may make are set out in s 395 of the MHA 2014 which state that:
(1) On completing a review under this Division, the Tribunal may make any orders, and give any directions, the Tribunal considers appropriate.
(2) Those orders and directions include the following
(a) an order revoking an involuntary treatment order;
(b) a direction to the psychiatrist named in the order to make, within a reasonable period specified in the direction, a community treatment order in terms that are consistent with section 115 and specified in the direction;
(c) an order varying the terms of a community treatment order in any way that is consistent with section 115.
(3) The Tribunal cannot make an order or give a direction under subsection (1) in relation to an involuntary patient’s treatment, support or discharge plan, but may make
(a) a recommendation that the patient’s psychiatrist review the treatment, support or discharge plan; and
(b) if such a recommendation is made a recommendation about the amendments that could be made to the treatment, support and discharge plan.
(4) The Tribunal may give a copy of any recommendation made under subsection (3) to the Chief Psychiatrist.
The role of the State Administrative Tribunal (Tribunal)
27 Under s 494 of the MHA 2014, a person in respect of whom the MHT makes a decision or a person who in the opinion of the Tribunal has a sufficient interest in the matter may apply to the Tribunal for a review of the decision of the MHT.
28 The review jurisdiction of the Tribunal is contained in Div 3 of Pt 3 of the SAT Act and particularly at s 27 and s 29.
29 The effect of s 27 and s 29 of the SAT Act is set out in LS v Mental Health Review Board [2013] WASCA 128 at [90] to [98] (LS).
30 Relevantly, the matter is heard afresh on the material presented at the hearing and is not dependant on whether or not there was an error by the MHT. The Tribunal is to produce the correct and preferable decision with reference to the time of the Tribunal's decision. Subject to s 29(2) of the SAT Act, the Tribunal must do again what the MHT originally did. Finally, ' It is not open to the Tribunal to exercise some other discretion vested in the [MHT] where a decision in the exercise of that discretion is not the subject of the review'. (LS,citing with approval Chaney J in Dunbar and Commissioner of Police[2007] WASAT 90; (2007) 51 SR (WA) 318 at [19].
The psychiatric evidence
31 The Tribunal heard from Dr C, the supervising psychiatrist for the CTO and Dr D, psychiatrist from whom AB sought a 'second opinion'.
Dr C's evidence
32 The Tribunal had the benefit of reports filed by Dr C with the former Mental Health Review Board (Board) on 12 January 2015 and with the MHT on 4 January 2016.
33 Dr C states that his team (mental health team) has had contact with AB since early in 2014. He describes AB as having a chronic psychotic mental illness since at least from 1980 and that the illness had been essentially untreated since the 1990s.
34 Dr C states that in the past AB has been diagnosed as having schizophrenia or a delusional disorder.
35 It is the opinion of Dr C that AB diagnostically fits the criteria of chronic paranoid schizophrenia and has presented with an extensive systematised delusional belief system.
36 Dr C states that AB is convinced he does not have a mental illness.
37 The belief system to which Dr C refers has included in 2014, persecutory delusions about accommodation agencies (the reason given for AB living on a local beach); also in 2014 grandiose delusions of being the chosen beneficiary of secretive billionaires (he was reportedly sending small amounts of money to alleged benefactors) and more generally according to Dr C, 'a huge government conspiracy' (T:109; 09.05.16).
38 Dr C reports that recently AB has told members of the mental health team that he had not been injecting his insulin for a while (AB has diabetes) because of the belief that the insulin had been poisoned and also that people had come to his camp at night to inject him through the tarpaulin with poison. AB is said to have suspected Dr C's mental health team of being involved.
39 Dr C outlined the history behind his teams' involvement with AB.
40 In 2014, a solicitor acting for a local government, contacted the Department of Health with a concern that without intervention AB might harm himself or others as a consequence of him living in the sand dunes of a local beach. At that time, the local government was taking action (later discontinued) to remove AB from his campsite.
41 Dr C reports that the assessing psychiatrist (AB had been referred for a psychiatric assessment by the Magistrates Court), confirmed the existence of a mental illness but argued against the use of a CTO. A plan was devised to try and engage with AB to provide 'psycho education' and to develop a therapeutic alliance with him. The ultimate aim was to have AB accept the need for treatment for his mental illness.
42 Dr C states the plan was not successful. A CTO was made on 1 December 2014.
43 It is not clear from Dr C's evidence what the outcome was of the CTO made on 1 December 2014. In the report to the MHT of 4 January 2016, Dr C states that since January 2015, AB has not accepted any form of contact with the mental health team and, because of the conduct of AB, it is not expected that a therapeutic alliance will develop.
44 Dr C states that during routine followup with AB in November 2015, the mental health team observed that AB's campsite was much more disorganised than had been seen in the past. Food scraps were scattered in the sand, water was being stored in rusty buckets and AB's 'physical health medication' was dispersed and lying unprotected in the sand. Dr C made reference to progress notes from the renal and endocrine clinics of a teaching hospital indicating that AB's diabetes was not well controlled.
45 Dr C reports that in a subsequent visit to AB's campsite by a member of the mental health team, a snake was observed entering AB's tarpaulin, a situation that left AB apparently unperturbed.
46 Dr C states that it is the view of the mental health team that in November 2015, AB was much more under the influence of his persecutory delusions. His behaviour was more disorganised.
47 Dr C states that an assessment was made that AB's physical and mental health were at risk and, that after much deliberation, it was decided that a CTO was the most effective means of treating his mental illness, given that AB could not be convinced to be treated on a voluntary basis. The plan was to give AB an appropriate trial of evidencebased treatment, that being depot antipsychotic medication (treatment) in the hope that it would impact on the psychotic symptoms that were interfering with his physical and mental health.
48 Dr C states that AB did not attend his first appointment for his treatment and as a consequence a breach of the CTO was issued. About a week later, AB was forcibly taken to hospital to receive his treatment and this also happened for the second and third treatments.
49 In opposing AB's application for a stay of the decision of the MHT, Dr B said at the first hearing:
My main concern, because we've decided that we would give a treatment trial [of] adequate length and sufficiency in order to see if there's a clear improvement in regards to [AB]'s mental state. If we do adjourn this treatment trial or interrupt it again, I will have to ask myself then the question because evidencebased treatment with the depot medication should be it takes five depot half-lives to reach a steady state and it would need to be considered again as an aborted treatment trial that needs to be restarted.
(T:44; 29.03.16)
50 At the time of the final hearing, AB had been given four treatments with the fifth one due on 17 May 2016. Dr C states that, in his view, there has been '… slight amelioration in regards to the persecutory ideations' which represents a mild but not substantial improvement in AB's mental health (T:62-63; 09.05.16).
51 Dr C states that the community mental health nurses have reported that recently, AB has objected to the treatment 'with much less vigour', but that it was difficult to say whether this indicated progress of the treatment or an acceptance by AB of the powers of a CTO (T:109; 09.05.16).
52 Dr C reiterated his position from the first hearing that a trial of treatment should consist of at least five treatment cycles which could take five to six months.
53 Responding to the evidence of the mental health team's social worker that the state of AB's campsite had improved significantly since November 2015 (see below), and whether the treatment played a part in that change and the fact that AB was now saying that his insulin was no longer poisoned, Dr C states:
I only can quote the evidence based medicine and use of an antipsychotic gives according to evidence-based medicine, an 80 per cent chance I think that's the exact figure, of improving a mental illness. And if it doesn't occur with the first one, then a trial of a second one should be given. So the evidence base is therefore [sic] the use of medication. That is why a community treatment order in its power exists.
(T:122; 09.05.16)
54 Dr C states that the options for AB are to discontinue with the CTO on the basis that it is too hard to enforce and because treatment may not change his delusional system in the long run, or to take the current path of the mental health team that, despite the difficulties, a trial of treatment is warranted.
55 Dr C supports the continuation of the CTO.
56 Dr C submits that without a CTO in place, AB will discontinue with his treatment. If that were to occur, Dr C opines that AB will continue to live with the chronic trajectory of his mental illness including the persecutory delusions that will continue to influence his life. There will be periods where AB will likely become agitated as the mental illness waxes and wanes. In times of the exacerbation of his illness AB will be at more risk of physical and mental harm.
Dr D's evidence
57 In a report dated 25 April 2016 and in his oral evidence, Dr D states that he assessed AB on 12 February 2016. Dr D did not have access to AB's clinical notes or other collateral information. AB told him that the purpose of his attendance at Dr D's clinic was for a second opinion to assist him in demonstrating that he does not have a mental illness and in having the CTO removed.
58 Dr D states that AB presented as unkempt and dishevelled with all his belongings in a bag and a trolley. There were many 'USBs' hanging around his neck. AB blamed the government for stealing all his information and data.
59 Dr D states that AB was tangential, circumstantial, distracted and pressured in explaining events. AB was distracted, agitated and paranoid blaming government, medical practitioners and the agencies involved in his treatment. He was difficult to redirect to elicit sufficient information.
60 Dr D assessed AB as having ongoing delusions of a persecutory, paranoid and referential nature. He was reasonably oriented to time, place and person.
61 Dr D's opines that AB has a long standing history of mental illness of psychotic type, sufficient to meet the standard classification criteria of schizophrenia or schizoaffective disorder. Dr D considers AB to be always at risk of making allegations against various government bodies and mental health professionals. He has poor insight into his illness and impaired judgment.
62 Dr D states that in the week prior to the final hearing, he received a threatening telephone call from AB saying he would have him deregistered and have him put in prison.
The evidence of the social worker from the mental health team
63 The social worker states that representatives of the mental health team visit AB's campsite at least monthly. The visits have occurred since the end of 2013. The last time he visited was March 2016 with the community mental health nurses last visiting in April 2016.
64 The social worker states that in November 2015, AB's campsite was the worst it had been for several years, including medications strewn in the sand and the observation of a snake crawling from AB's tarpaulin, about which AB was said to be blasé.
65 The social worker says that in his last visit to the campsite in March 2016, he found the conditions much improved and that the area had been cleaned up.
66 The social worker states that AB has complained about the conduct of the mental health team to the Health and Disability Services Complaints Office.
… Part of the complaint was that Dr [C] and myself had been visiting [AB]'s camp late at night. We had been gassing him, and he has been waking up unconscious. To me, the complaint showed strong evidence that which is why we should continue with treatment. I thought at the time it would be quite distressing to have someone to think someone had been visiting your camp night time, gassing you, poisoning you. So …
(T: 117; 09.05.16).
67 AB confirms that he was sprayed with 'some stuff" in the early morning, that he passed out and that he woke up 'drugged'. He says that the social worker could have been involved but that the social worker does not have a body mass consistent with the footprints he observed (T:117; 09.05.16).
The case presented by AB
68 AB states that he does not have a mental illness and that he has never been mentally ill.
69 AB says that he was first placed under a CTO in October 2010 because he was living in the midst of snakes on the beach which was said to put his health and safety at risk.
70 AB states that in 2013, a psychiatrist at a psychiatric hospital told him that he was beholden to certain people who had 'a gun over his head'. AB says he was told to 'keep my mouth shut … otherwise my life is dead'. (T:14; 29.03.16).
71 AB contends that the matter before the Tribunal is very delicate and dangerous, that 'these people are very dangerous people I'm dealing with' (T:16; 29.03.16).
72 AB maintains that Dr C has lied and fabricated his evidence and that when Dr C visited him at his campsite he was belligerent and conniving such that he had to call the police upon which Dr C 'ran away' (T:69; 09.05.16). This is denied by Dr C.
73 In the first hearing, AB said that he was seeking a second opinion from Dr D, that he expected Dr D to assess him as not having a mental illness and that he would be prepared to accept the second opinion. In the final hearing, AB said that Dr D has 'sold out' and had disqualified himself by 'unlawfully' charging under Medicare Item 291 (T:55, 58; 09.05.16). AB said that in effect Dr D was no longer an independent psychiatrist because he was working for government and had conspired with Dr C (Dr D says that he works in private practice for two day a week and for government three days a week).
74 Also, in the first hearing, AB provided a pathology report to demonstrate in his view, that the treatment was detrimental to his health because of a purported high blood reading of 'ESR'. Dr C said that the 'ESR' is a nonspecific inflammatory marker that may be elevated in the context of a bruise sustained by an intramuscular injection. He said that he had tried to assure AB that the elevation of the marker was not a cause for urgent concern and would not lead to a suspension of the treatment. Dr C had not been contacted by AB's general practitioner in regard to this matter.
75 As regards the insulin for his diabetes, AB states that he has never said that he stopped injecting the medication for a time. At one time, he says he was concerned about a particular batch of insulin which his general practitioner told him to throw away and after which, he says, he changed pharmacists. AB says he is happy with his current pharmacist and is selfinjecting his insulin.
76 AB states that he is no longer being injected with poison through the tarpaulin or gassed at his campsite because he has some people protecting him. When asked who these people are he says, 'I can't tell you' (T:118; 09.05.16).
77 AB refers to legal action from 1994 when he says his files went missing in their transfer from the Supreme Court to the District Court.
… They've all gone missing. It means there is (sic) robbers there. The white ant of the highest authority in the land is under white anting[.]
…
It means that long before I was supposed to be mental, I was saying that. Long, long, long before I was even thought of being mental, I was saying these same things.
(T:113; 09.05.16)
78 AB says that he believes the Department of the Attorney General is behind his treatment and that Dr C is being told what to do. He believes that there is a conspiracy to diagnose him with a mental illness and that Dr C is part of that plot.
Discussion
79 The Tribunal is satisfied that AB is in need of a CTO: s 25(2) of the MHA 2014.
80 The Tribunal finds that AB has a mental illness as defined in s 6 of the MHA 2014. He has been diagnosed with chronic paranoid schizophrenia.
81 The assessments of the psychiatrists, Dr C and Dr D are in agreement.
82 AB was not able to produce any contrary evidence other than an assertion that the diagnosis of his mental illness is the product of a wide ranging conspiracy of which Dr C is a part. The Tribunal does not accept the evidence of AB.
83 The Tribunal is satisfied that AB is in need of treatment for his mental illness: s 25(2)(a) of the MHA 2014.
84 The outstanding feature of AB's mental illness is a persistent system of persecutory delusions. AB acts on these delusions and they impair his judgment.
85 AB is 68 years of age and has lived at a local beach for many years. He has a serious medical condition, diabetes, which requires daily treatment and regular review.
86 The Tribunal accepts that, although AB had subsisted reasonably well in his campsite, there was deterioration in his functioning around November 2015 which placed his health and continued living at his preferred campsite at risk. The Tribunal finds that more likely than not, the reason for the deterioration was an exacerbation of the major symptoms of his mental illness, the persecutory delusions.
87 Given the history of AB's circumstances in the context of his chronic mental illness, the Tribunal is satisfied that active treatment was a reasonable response by the mental health team to the situation that presented in November 2015.
88 The Tribunal accepts the evidence of Dr C that the effectiveness of the current treatment can only be evaluated if the treatment is of a particular duration, five or six treatment cycles. These cycles were not complete at the time of the final hearing.
89 The evidence suggests that the treatment may be having a positive impact on AB's mental health. He is recently reported to be less physically opposed to the treatment, his campsite is in much better condition than it was in November 2015, and he says that the attempts at poisoning have stopped.
90 The evidence is that AB's living conditions are primitive. He is no longer a young man. The Tribunal accepts the evidence of Dr C that AB remains extremely vulnerable to a further decline in his health and safety should he act on his persecutory delusions that in the recent past have led him to erroneously believe his diabetic medicine was poisoned and that he was otherwise being poisoned at his campsite.
91 For these reasons, the Tribunal finds that because of AB's mental illness there is currently a significant risk to his health or safety and a significant risk of him suffering serious physical or mental deterioration if not currently treated: s 25(2)(b) of the MHA 2014.
92 The Tribunal finds that AB does not demonstrate the capacity to make a treatment decision because he does not believe he has a mental illness: s 25(2)(c) of the MHA 2014. His evidence is that he has never been mentally unwell and that his diagnosis is the product of a conspiracy.
93 Although the giving of the treatment has been a difficult experience for AB, albeit it seems a little less traumatic recently, the Tribunal is satisfied that the treatment can reasonably be provided in the community, so as to enable AB to presently continue living in the way that he prefers: s 25(2)(d) of the MHA 2014.
94 Because AB does not believe he needs treatment, there is no less restrictive alternative to the current treatment regime: s 25(2)(e) of the MHA 2014.
95 In deciding to continue with the CTO, the Tribunal has had regard to the matters set out in s 394 of the MHA 2014 and to the guidelines of the chief psychiatrist: s 547(1)(a) of the MHA Act. The Tribunal notes the longstanding nature of AB's mental illness, his recent deterioration, the nature of the treatment being given to him, in particular, that it is a trial to determine whether his overt persecutory delusions can be moderated, and AB's wish not to be treated.
Order
1. The Community Treatment Order made on 17 November 2015 and continued on 16 February 2016 remains in effect.
I certify that this and the preceding [95] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, SENIOR MEMBER
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