AB v Beer
[2017] WASC 199
•21 JULY 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: AB -v- BEER [2017] WASC 199
CORAM: CORBOY J
HEARD: 2 NOVEMBER & 16 DECEMBER 2016 & 17 JULY 2017
DELIVERED : 21 JULY 2017
FILE NO/S: GDA 9 of 2016
GDA 10 of 2016
BETWEEN: AB
Applicant
AND
INGO BEER
First RespondentINNER CITY MENTAL HEALTH SERVICE
Second RespondentMOBILE COMMUNITY OUTREACH TEAM
Third RespondentMENTAL HEALTH TRIBUNAL
Fourth RespondentSTATE ADMINISTRATIVE TRIBUNAL
Fifth Respondent
FILE NO/S :GDA 1 of 2017
BETWEEN :AB
Appellant
AND
INGO BEER
First RespondentMOBILE COMMUNITY OUTREACH TEAM
Second RespondentMARK McANDREW
Third RespondentINNER CITY MENTAL HEALTH
Fourth RespondentMENTAL HEALTH TRIBUNAL
Fifth Respondent
FILE NO/S :CIV 3024 of 2016
AB
ApplicantEX PARTE
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram :SENIOR MEMBER J MANSVELD
MEMBER MS M CONNOR
SENIOR SESSIONAL MEMBER DR F NG
File No :MHA 2 of 2016, MHA 6 of 2016
Catchwords:
Appeal from decision of State Administrative Tribunal - Mental Health Act 2014 (WA) - Review of decision to confirm community treatment order - Review of decision to confirm continuation of community treatment order - Whether appeal moot in circumstances where community treatment order has been revoked
Application to set aside subpoenas - Whether subpoenas have legitimate forensic purpose - Whether subpoenas oppressive - Whether subpoenas an abuse of process
Legislation:
Mental Health Act 2014 (WA), s 21, s 23, s 25, s 494, s 503, s 504
State Administrative Tribunal Act 2004 (WA), s 27, s 105
Result:
Subpoenas served by appellant set aside
Application to join additional respondents refused
Appeals dismissed
Category: B
Representation:
GDA 9 of 2016
GDA 10 of 2016
Counsel:
Applicant: In person
First Respondent : Ms J C O'Meara & Mr B D Nelson
Second Respondent : Ms J C O'Meara & Mr B D Nelson
Third Respondent : Ms J C O'Meara & Mr B D Nelson
Fourth Respondent : Ms J C O'Meara & Mr B D Nelson
Fifth Respondent : Ms J C O'Meara & Mr B D Nelson
Solicitors:
Applicant: In person
First Respondent : State Solicitor for Western Australia
Second Respondent : State Solicitor for Western Australia
Third Respondent : State Solicitor for Western Australia
Fourth Respondent : State Solicitor for Western Australia
Fifth Respondent : State Solicitor for Western Australia
GDA 1 of 2017
Counsel:
Appellant: In person
First Respondent : Ms J C O'Meara & Mr B D Nelson
Second Respondent : Ms J C O'Meara & Mr B D Nelson
Third Respondent : Ms J C O'Meara & Mr B D Nelson
Fourth Respondent : Ms J C O'Meara & Mr B D Nelson
Fifth Respondent : Ms J C O'Meara & Mr B D Nelson
Solicitors:
Appellant: In person
First Respondent : State Solicitor for Western Australia
Second Respondent : State Solicitor for Western Australia
Third Respondent : State Solicitor for Western Australia
Fourth Respondent : State Solicitor for Western Australia
Fifth Respondent : State Solicitor for Western Australia
CIV 3024 of 2016
Counsel:
Applicant: In person
Solicitors:
Applicant: In person
Case(s) referred to in judgment(s):
AB and Mental Health Tribunal [2016] WASAT 71
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Commissioner for Consumer Protection v Carey [2014] WASCA 7
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
LS v Mental Health Review Board [2013] WASCA 128
Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115
Stanley v Layne Christensen Co [2004] WASCA 50
VL v Mead Centre, Armadale Mental Health Service [2011] WASCA 214
CORBOY J:
The applications and the result
The appellant has been diagnosed with chronic paranoid schizophrenia. He disputes that diagnosis. He has also been diagnosed as suffering from insulin‑dependent diabetes mellitus.
The fourth respondent is associated with the second respondent. The fourth respondent is a mental health team that comprises the first respondent, a senior social worker and two clinical nurses. Members of the fourth respondent have endeavoured to engage with the appellant to treat his mental illness. The first respondent is a consultant psychiatrist to the fourth respondent and has supervised attempts to treat the appellant.
A community treatment order in respect of the appellant was made on 17 November 2015 (the CTO). The first respondent was the supervising psychiatrist under the order. The purpose of the order was to authorise the administration of anti-psychotic medication without the appellant's consent.
The Mental Health Tribunal (MHT) confirmed the order, over the appellant's objection, on 8 January 2016. The appellant applied to the State Administrative Tribunal (the Tribunal) for a review of that decision.
An interim review of the CTO was undertaken by the MHT on 1 April 2016. The Tribunal confirmed the continuation of the CTO. The appellant again applied to the Tribunal for a review of that decision.
The Tribunal heard the appellant's applications for review together. The Tribunal decided that the CTO should remain in effect: AB and Mental Health Tribunal [2016] WASAT 71.
The appellant appealed from that decision. He also sought various interim orders, including a stay of Tribunal's decision. The effect of a stay would have been to suspend the operation of the CTO pending the determination of the appeal.
A further periodic review of the CTO was conducted by the MHT on 16 September 2016. The MHT confirmed the continuation of the CTO. The appellant sought to commence an appeal from that decision in this court. However, the Principal Registrar refused to accept the notice of appeal -presumably because this court has no jurisdiction to hear and determine an appeal from the MHT. The appellant filed an ex parte notice of motion seeking to appeal from the Principal Registrar's decision.
Another periodic review of the CTO was undertaken by the MHT on 23 December 2016. The MHT confirmed the continuation of the CTO and again, the appellant purported to commence an appeal from that decision in this court. The notice of appeal was accepted for filing in this instance.
A periodic review of the CTO was also conducted on 1 April 2017. The MHT again confirmed the continuation of the CTO. However, the first respondent has since determined that the CTO should be revoked and the order is no longer in effect.
The respondents contended that the appeals were moot following the decision of the MHT in September 2016 to confirm the continuation of the CTO. Assuming that the appeal to this court from that decision (and the subsequent decision of the MHT made in December 2016) was incompetent, the CTO continued to apply by force of orders made by the MHT after the applications for review had been decided and not by reason of the Tribunal's decision.
The respondents further contended that the appeals were, in any event, moot once the CTO had been revoked.
An issue arose in the appeal concerning subpoenas that had been served by the appellant. Some documents were produced to the court but the majority of the recipients applied to set aside the subpoenas on grounds that they lacked any legitimate forensic purpose, were oppressive and it was an abuse of process to compel the recipients to attend court for the purpose of giving evidence. I reserved my decision on the determination of those applications.
I subsequently concluded that the subpoenas served by the appellant should be set aside. The parties were advised of that decision and a further hearing was convened for the purpose of receiving additional submissions on the disposition of the appeal. The appellant made another application at that hearing for orders that various persons be joined as parties to the appeal, discovery be given by those parties and damages be awarded to him (the Further Application).
I have found that:
(a)The court has no jurisdiction to entertain an 'appeal' from a decision of the MHT. Consequently, the ex parte motion appealing from the decision of the Principal Registrar will be refused and the appeal commenced in respect of the December 2016 periodic review will be dismissed.
(b)The appeals were not moot while the CTO remained in force. The order might have been set aside by this court depending on the nature of any error found to have been made by the Tribunal or if some other sufficient reason had been shown. That might have been so even if the MHT had again confirmed the continuation of the CTO after the decision of the Tribunal.
(c)There was no order that the court could make affecting the operation of the CTO once the order had been revoked. However, that did not mean that the appeal from the decision of the Tribunal lacked utility. It was in the interests of justice for the appeal to be determined; the parties were entitled to have the appeal determined having regard to the matters that were raised.
(d)The Tribunal made no error of fact or law in reaching its decisions and there was no other sufficient reason for allowing an appeal.
(e)The application for a stay would have been refused if the CTO had not been revoked. The appeals had no reasonable prospect of success. That was apparent from the evidence filed in the stay application and the parties' submissions.
(f)The subpoenas served by the appellant will be set aside on the ground that they have no legitimate forensic purpose having regard to the reasons given by the appellant for the subpoenas and the subject matter of the appeals.
(g)The Further Application will be refused. The application concerned matters that were beyond the court's jurisdiction in this appeal.
The CTO
Although the CTO was made on 17 November 2015, treatment under the order did not commence until February 2016. The appellant's treatment was by a monthly injection of paliperidone, an anti‑psychotic medication.
The appellant contended that he does not suffer from a mental illness. He also complained that he had experienced unpleasant side‑effects from the medication that was administered: reflux of stomach acid, side‑spread cramps and painful joints, incontinence, exhaustion and mental fatigue. The Further Application sought, among other things, orders for:
a.Maximum remedial costs of all the health damage caused to [the appellant] by the unlawful mental and physical assaults inflicted upon him by [the first respondent] in collusion with the respondents and others.
b.Ongoing maintenance of the irreparable damage they have caused.
There are known side‑effects from the ingestion of paliperidone, including adverse effects on a patient's blood glucose levels and possible weight gain. Adjustments were made to the appellant's medication regime for his diabetes in August 2016 to compensate for the possible side‑effects of the drug.
Further, the first respondent caused a literature review of the side‑effects of paliperidone to be undertaken. His opinion, informed by the review, was that the symptoms described by the appellant were 'uncommon, non‑specific adverse effects that can in general be associated with a lot of medications' (affidavit of the first respondent, 28 October 2016, par 25). The first respondent considered that the benefits of the appellant being treated with anti‑psychotic medication outweighed the risks associated with the medication.
The statutory scheme
Section 21 of the Mental Health Act 2014 (WA) provides that an involuntary patient is a patient who is under an involuntary treatment order. A community treatment order is one form of an involuntary treatment order.
Section 23 provides that a community treatment order is an order in force under the Mental Health Act by which a person can be provided with treatment in the community without informed consent being given to the provision of the treatment. The order can be made in a variety of circumstances, including following an examination by a psychiatrist: s 73.
The criteria for making the order are specified by s 25(2). That section states:
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.
Section 25(3) further states that the decision whether a person is in need of a community treatment order must be made having regard to the guidelines published by the Chief Psychiatrist under s 547(1) of the Act.
Section 6 of the Mental Health Act defines mental illness as follows:
(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.
The treatment period specified in a community treatment order cannot exceed three months from the day on which it was made: s 115(2) of the Mental Health Act. However, the psychiatrist supervising the order may make an order continuing the order for a further treatment period not exceeding three months: s 121.
The MHT is established pursuant to the Mental Health Act. Section 386 of the Act provides that the MHT must review a community treatment order as soon as practicable after the order was made and, in any event, within 35 days. Further, the MHT is required to conduct periodic reviews of a community treatment order. The review is to be conducted by reference to the criteria specified for a community treatment order in s 25 of the Mental Health Act: s 386(2) and s 387(2). Further, s 394(1) specifies the matters to which the MHT must have regard in making a decision on a review of community treatment order, including:
(a)the patient's psychiatric condition;
(b)the patient's medical and psychiatric history;
(c)the patient's treatment plan;
(d)the patient's wishes, to the extent that it is practicable to ascertain those wishes;
(e)the views of any carer, close family member or other personal support person of the patient;
(f)any other things that the MHT considers relevant to making the decision.
A person in respect of whom the MHT has made a decision and who is dissatisfied with the decision may apply to the Tribunal for a review of the decision: s 494 of the Mental Health Act. Section 27 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) provides that a review hearing is to be by way of a hearing de novo and is not confined to matters that were before the decision‑maker. The purpose of the review is to produce the correct and preferable decision at the time that the decision was made.
A person in respect of whom a decision is made by the Tribunal and who is dissatisfied with the decision may appeal, without leave, against the decision under s 105 SAT Act: s 503 of the Mental Health Act. Section 504 provides that the grounds of appeal may be that:
(a)the State Administrative Tribunal -
(i)made an error of law or fact, or of both law and fact; or
(ii)acted without jurisdiction or in excess of its jurisdiction; or
(iii)did both of those things;
or
(b)that there is another sufficient reason for hearing an appeal against the decision or order.
The review proceedings
The MHT confirmed the making of the CTO in an initial review conducted on 8 January 2016. The appellant applied to the Tribunal for a review of that decision by application dated 28 January 2016. He also sought various ancillary orders that were outside the jurisdiction of the Tribunal.
The appellant subsequently applied to this court, in effect, for an order restraining the first respondent from administering treatment pursuant to the CTO. That application was dismissed by Pritchard J on 16 February 2016.
The appellant made a further application to the Tribunal for a stay of the decision of the MHT confirming the CTO. The Tribunal refused that application on 29 March 2016. It adjourned the appellant's substantive application for a review of the MHT's decision to enable the appellant to obtain a second psychiatric opinion on the diagnosis of chronic paranoid schizophrenia.
The MHT confirmed the continuation of the CTO at the first periodic review held on 1 April 2016. The appellant applied to the Tribunal for a review of that decision. The MHT confirmed the continuation of the CTO in subsequent reviews.
As has been noted, the Tribunal heard the applications for review together and confirmed the making and continuation of the CTO. The appellant commenced two appeals against the decision of the Tribunal. The grounds of appeal, read together, alleged that the Tribunal erred by:
(a)preventing the appellant from presenting or properly conducting his case (ground 1);
(b)closing its mind to 'glaring incompetence' by refusing to take notice of facts that 'contradicted its own narrow aims and aspirations to suppress and defeat any fact and prevent the truth from emerging' (a complaint that was expressed in different ways in three grounds of appeal but which, in substance, alleged that the Tribunal was 'not interested' in the facts, acted to suppress facts that were consistent with the appellant's position and, by those matters, demonstrated its prejudice against the appellant) (ground 2);
(c)listing the hearing of the appellant's applications for three hours when 'several days' were required (ground 3);
(d)committing 'numerous acts of sabotage', including by shutting down the recording of the proceedings to prevent the appellant from giving evidence (ground 4);
(e)'showing' bias against the appellant with the result that the appellant was unable to present the Tribunal with 'any facts' (ground 5);
(f)placing the appellant in his present position 'in order to close for ever any rights [that the appellant] has to justice to be able to settle his long standing claims against his tormentors' (ground 6).
The conduct of the review in the Tribunal
The Tribunal's review of the decisions made by the MHT was conducted across two hearing days - 29 March 2016 and 9 May 2016. The appellant appeared in person on both days, although there was a mental health advocate present as a support person for the appellant at the hearing on 29 March 2016. The transcript does not record any submission or intervention by the advocate.
The respondents were not represented in the Tribunal, although the first respondent was present throughout the hearing. He gave evidence, answered questions from the Tribunal and acted, in effect, as a contradictor in the review.
The procedure adopted at the hearing on 29 March 2016 was for the Tribunal to ask a number of questions of the appellant and the first respondent, both of whom gave their answers after being affirmed.
The appellant commenced the hearing by seeking an order for discovery. He claimed that he required files from a number of hospitals and agencies to prove that reports concerning his mental health were false. The appellant stated in answer to questions from the Tribunal that his mental health had been assessed while in Royal Perth Hospital on one occasion in 1980; that he had been detained at the Swan Districts Hospital as an involuntary patient in 2011 on referral from Sir Charles Gairdner Hospital; and that he had been admitted to the Frankland Centre in 2013 (ts 10 ‑ 16). He did not seek documents about his admission to those hospitals to demonstrate that the MHT had made the wrong decision. Rather, he sought documents that he claimed would establish that reports suggesting that he suffered from a mental illness had been fabricated as part of a conspiracy against him.
The appellant also advised the Tribunal that he had sought a second opinion regarding his mental state from Dr Khanna. He provided a letter that indicated that Dr Khanna had not yet examined the appellant but was willing to do so. The Tribunal agreed to adjourn the hearing to enable Dr Khanna to provide a second opinion.
The Tribunal also considered the appellant's application for a stay of the CTO at the hearing on 29 March 2016. The appellant stated in answer to questions from the Tribunal that the anti‑psychotic medication administered pursuant to the CTO had a debilitating effect on his health and general well‑being. He also made allegations concerning the first respondent's motives in making the CTO.
The Tribunal questioned the first respondent about the effect of the medication administered to the appellant and permitted the appellant and the first respondent to make submissions on the stay application. The Tribunal refused the application after considering those submissions.
Three points should be noted about the appellant's request for further documents. First, the review concerned the making and continuation of the CTO; that is, the issue that the Tribunal was required to decide concerned the appellant's mental state in early 2016 and not at some earlier time. Second, the appellant's explanations for why the documents were relevant indicated that he sought to engage the Tribunal in a wide-ranging enquiry that would extend well beyond the decision of the MHT under review and, consequently, the Tribunal's jurisdiction. Third, the appellant's explanations also reflected beliefs that were consistent with the opinions expressed by the first respondent in the review about the appellant's mental state (see, for example, the appellant's explanations for why he had required documents from Fremantle Hospital and the Frankland Centre (ts 14 ‑ 15)).
The first respondent, Dr Khanna and a social worker, Mr Sultan, gave evidence at the resumed hearing in the Tribunal (Mr Sultan is part of the team that is the fourth respondent). The appellant is, by nature, loquacious. Consequently, the taking of evidence by the Tribunal at the resumed hearing proceeded in a relatively informal way - a combination of cross‑examination of the witnesses and commentary by the appellant, punctuated by questions from the Tribunal to the witnesses and the appellant. In particular, the Tribunal asked the appellant questions concerning his mental health and personal circumstances and provided him with an opportunity to make submissions at the completion of the examination of the witnesses. The appellant made a number of assertions about his mental health and about the motives of the first respondent and Dr Khanna throughout the hearing.
The appellant repeatedly referred in the Tribunal and in the appeal to an action for damages that he had commenced in this court. The appellant alleged that the first respondent and others had conspired with insurers to prevent him from recovering damages pursuant to that claim by fabricating evidence and making false allegations about his mental health.
The appellant provided the Tribunal with two documents that apparently listed the documents that had been filed in the action - a copy of one of the documents was also attached to the appellant's affidavit made in support of his application to the court for a stay (the Appellant's Affidavit). It was apparent from those documents that the appellant had commenced an action against Transfield (WA) Pty Ltd by writ of summons dated 18 July 1977 (the Transfield Action). It also appeared that the action was a claim at common law for damages for personal injury.
One of the documents provided to the Tribunal apparently listed documents held by the District Court in respect of the action (the District Court List) (a further and slightly different version of the list was attached to the Appellant's Affidavit, attachment 'MNS 2'). The source of the second document provided to the Tribunal was not immediately apparent but I infer that it listed documents that may have been held - or were once held - by this court in respect of the Transfield Action (although the list also itemises documents that were apparently filed in the District Court) (the Second List). The District Court List indicates that the Transfield Action was remitted to the District Court by orders made by Master Adam in 1994.
Some entries in the Second List differed from what was recorded in the District Court List. Most significantly, the Second List contained an entry for 20 November 1979 that did not appear in the District Court List. The entry stated, 'Judgment determining the issue of Liability upon Trial Before Hon Mr Justice Jones dd 20/11/79'. The copies of the Second List provided to the Tribunal and attached to the Appellant's Affidavit were annotated with the word 'missing' next to that and other entries.
The significance of that entry for the appellant was explained in his written submissions in the stay application:
On 20 November 1979 a judgment by consent with QBE Insurance Ltd was entered in my favour in Supreme Court action No 1647 of 1977 and I was promised a start rilling [rolling] in money within 2 weeks of that judgment but the Legal Aid Commission and the insurance and my lawyer have got different plans in mind for me and as a consequence the [they] fabricated a psychiatric report by Dr [F] on 1 April 1980 to put spanners in the works to this very day despite such report was soundly discredited by Dr [G], the insurance and my detractors continue to make maximum mischief with that report to this very day (appellant's outline of submissions, par 22).
Both lists recorded that numerous interlocutory steps and proceedings had occurred after 20 November 1979. That suggested that the appellant may have obtained a judgment on liability with damages to be assessed. It is not apparent whether the quantum of those damages has ever been agreed or assessed. The list of the documents held by the District Court that was attached to the Appellant's Affidavit stated that the Transfield Action had been inactive since 1997.
The appellant cross‑examined the first respondent at the Tribunal hearing on 9 May 2016 to the effect that the first respondent had sought to prevent the appellant from pursuing his claim for damages or obtaining money from an insurer and that he had fabricated his reports and evidence for that purpose. He alleged that the first respondent and others had conspired to obtain the CTO because they did not want him to 'get too much money' (9 May 2016, ts 124).
The appellant also alleged at the Tribunal hearing that Dr Khanna had changed his opinion - 'had sold [the appellant] out' - either by colluding with the first respondent or in order to obtain a contract with the government.
The Tribunal's decision
The Tribunal accepted the evidence of the first respondent and Dr Khanna that the appellant suffered from chronic paranoid schizophrenia and accordingly, had a mental illness within the meaning of that term as defined by s 6 of the Mental Health Act. The 'outstanding feature' of his mental illness was a 'persistent system of persecutory delusions' on which the appellant acted and which impaired his judgment [84].
In making those findings, the Tribunal rejected the appellant's evidence that the diagnosis of mental illness was the 'product of a wide ranging conspiracy' to which the first respondent was a party [82].
The Tribunal made further findings on the criteria specified in s 25(2):
(a)There was a significant risk to the appellant's health or safety and a significant risk of him suffering serious physical or mental deterioration if he was not treated. That was because the appellant's age (68 years) and his living conditions (he has lived for approximately five years at a campsite in sand dunes at a local beach) meant that he was extremely vulnerable to a further decline in his health or safety should he 'act on persecutory delusions that in the recent years have led him to erroneously believe his diabetic medicine was poisoned and that he was otherwise being poisoned at his campsite' [90].
(b)The appellant had not demonstrated the capacity to make a treatment decision as he did not believe he had a mental illness. As a result of the appellant's belief, there was no less restrictive alternative to his current treatment regime. However, the appellant's treatment could be undertaken in the community [92] ‑ [94].
(c)There was evidence to suggest that the treatment administered under the CTO was having some beneficial effect [89].
The Tribunal noted that the first respondent and Dr Khanna agreed in their assessment of the appellant. It accepted that the appellant's functioning had deteriorated from about November 2015 and that the effectiveness of the appellant's treatment under the CTO could only be evaluated if the treatment continued for a series of treatment cycles.
The principles to be applied
Section 106 of the SAT Act provides:
(1)The Supreme Court may, by order, stay the operation of a decision of the Tribunal pending the determination of an application for leave to appeal from the decision and of any appeal.
(2)Subject to any order made by the Supreme Court, an appeal does not affect the operation of the decision appealed against or prevent the taking of action to implement the decision.
The principles to be applied in determining whether a stay should be granted under s 106 are those set out in Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308; see VL v Mead Centre, Armadale Mental Health Service [2011] WASCA 214 [12]. In summary:
(a)a stay will not be granted unless special circumstances are shown - ordinarily, it will be necessary for the applicant to persuade the court that the stay is necessary to preserve the subject matter or the integrity of the proceedings or that the refusal of a stay could create practical difficulties in respect of the relief that may be granted on appeal;
(b)even if special circumstances are shown, the stay will generally still be refused unless it can be established that the appeal has reasonable prospects of success;
(c)a stay may still be refused even if the appeal has reasonable prospects of success if it appears that the balance of convenience does not lie in favour of the applicant.
The appellant's evidence
The Appellant's Affidavit comprised 51 closely typed pages and 12 annexures. It is not possible to summarise the detail of the affidavit. However, the affidavit mainly covered six topics: the appellant's work experiences since arriving in Australia from Lebanon in 1966; his dealings with various domestic and other support services; legal proceedings that the appellant has prosecuted and complaints that he has made against various legal practitioners; the appellant's dealings with various psychiatrists and hospitals, including his experiences under community treatment orders; his medical history; and the appellant's involvement with the first and fourth respondents.
Much of the material in the Appellant's Affidavit was irrelevant to the stay application and the appeal. However, the contents of the affidavit were generally consistent with the appellant's psychiatric diagnosis and the findings made by the Tribunal about his mental state. In particular, the appellant again connected the involvement of the first, second and fourth respondents, and the making of the CTO, with his claims for damages in the Transfield Action. The appellant alleged that the respondents had conspired with insurers and others in an attempt to prevent the appellant being paid substantial damages in satisfaction of his claims.
There was no medical evidence in the Appellant's Affidavit that he did not suffer from paranoid schizophrenia. The attachments to the affidavit included correspondence between the appellant's general practitioner, Dr Treagus, and a specialist treating the appellant for his diabetes, Professor Davis, and other specialists who had examined and treated the appellant for a back complaint. That correspondence did not suggest that the appellant did not suffer from a mental illness. At most, there was a substantially redacted letter from Dr Treagus to an unidentified person which commenced, 'I am writing a letter of support for my patient of [more than] 11 years'. The letter contained a brief summary of the appellant's medical history and included a statement that, 'I appreciate the psychiatrist's diagnosis/opinion but why can't we leave [the appellant] to his own devices!'. The letter was written in September 2016.
The appellant made further allegations in his written submissions in support of his application for a stay. He alleged that:
(a)the first respondent and Mr Sultan had fabricated evidence in order to obtain the CTO;
(b)the first respondent had told the appellant that he had read a number of psychiatric reports concerning the appellant before he had first visited the appellant. Those reports were said to include reports by Dr Skerritt and Dr Risbey;
(c)the first respondent and other doctors had either failed to produce copies of reports to the appellant or had destroyed reports – in particular, reports by Dr Risbey;
(d)the first respondent had conspired with members of the MHT to deny the appellant a fair hearing and to fabricate evidence;
(e)the first respondent had refused to accept that Dr Skerritt's report made in April 1980 was a 'patently false report', that Dr Risbey had 'debunked' Dr Skerritt's report in the years immediately following the appellant's examination by Dr Skerritt and that Dr Risbey had confirmed in 1994 that the appellant did not suffer from a mental illness;
(f)various psychiatrists had conspired with the first respondent and made false reports.
It was also apparent from his written submissions that the appellant considered that the appeal provided a vehicle by which he could pursue numerous complaints against various people, hospitals, local authorities and other bodies.
The respondents' evidence
The respondents relied on four affidavits made by the first respondent: affidavit made on 28 October 2016 (the Primary Affidavit); supplementary affidavit made on 1 November 2016; further supplementary affidavit made on 22 November 2016 (the Second Supplementary Affidavit); and further supplementary affidavit made on 13 January 2017 (the Third Supplementary Affidavit).
The first respondent attached to the Primary Affidavit five reports provided by psychiatrists regarding the appellant's mental state: undated report by Dr Tait to Dr Gibson, Chief Psychiatrist (apparently provided sometime in 2014); report dated 1 December 2014 from Dr Varughese to the first respondent; report dated 25 April 2016 from Dr Khanna to the Executive Officer of the Tribunal; report dated 7 June 2016 from Dr Bassett to Dr Treagus and report dated 31 August 2016 from Dr Kay to Dr Treagus. The report by Dr Khanna was the second opinion obtained at the request of the appellant for the purpose of the review undertaken by the Tribunal. It appears that Dr Bassett's report was also requested by the appellant, through Dr Treagus, as a second opinion, for the purpose of the review proceedings in the Tribunal.
There was little variation between the opinions expressed by each of the psychiatrists. They accepted that the appellant suffered from a mental illness associated with delusional beliefs and that he had poor insight into his illness and lacked judgment about his treatment needs. There was also a consensus that the appellant would benefit from anti‑psychotic medication (Dr Tait; Dr Varughese; Dr Khanna and Dr Bassett - Dr Kay was unable to express an opinion as he had only seen the appellant after anti‑psychotic medication had been first administered) and that a community treatment order was appropriate.
The opinions provided by Dr Khanna, Dr Bassett and Dr Kay should be particularly noted - Dr Khanna because he provided a second opinion to the Tribunal and Dr Bassett and Dr Kay because they provided opinions to Dr Treagus, the appellant's general practitioner of several years.
Dr Khanna stated that he considered the appellant had a longstanding history of mental illness of a psychotic type that met the criteria for schizophrenia or schizoaffective disorder; that he was a risk 'to make legal allegations against various government bodies and mental health professionals' secondary to his paranoid delusions and that he was in need of management with anti‑psychotic medication.
Dr Bassett concluded that the appellant suffered from paranoid schizophrenia that was poorly contained. He considered the appellant's welfare was at serious risk and that the absence of anti‑psychotic medication would leave the appellant at much greater risk. In Dr Bassett's opinion, a community treatment order was entirely appropriate and offered the minimum psychiatric care that was appropriate to the appellant's illness and life circumstances. He regarded the choice of paliperidone as very appropriate for the management of the appellant's illness.
Dr Kay concluded that the appellant had a psychiatric disorder with a 'strong paranoid flavour'. He considered that the differential diagnosis was between a paranoid psychosis or a paranoid personality disorder. He also considered that the appellant's psychiatric management should be left in the 'capable hands' of the second respondent.
The first respondent also attached to the Primary Affidavit letters from three medical practitioners indicating that the appellant's mental illness had an adverse impact on the treatment of his diabetes and his back condition (undated note by Dr Jayasundera; letter dated 30 September 2014 from the Diabetic Clinic, Royal Perth Hospital to Dr Ho and letter dated 7 September 2016 from Dr Green, Royal Perth Bentley Group, to Dr Treagus).
The first respondent further explained in the Primary Affidavit that to treat a chronic psychotic illness required time to ascertain whether a particular medication regime was beneficial or whether a patient's illness was treatment resistant. The first respondent stated in the Second Supplementary Affidavit that he had conferred with the appellant's endocrinologist, Professor Davis, regarding treatment for the appellant's diabetes while on anti‑psychotic medication. The first respondent attached a letter from Professor Davis indicating that the appellant's medication for glucose control had been altered to accommodate the side effects of the anti‑psychotic medication that had been administered pursuant to the CTO.
The first respondent replied in the Second Supplementary Affidavit to a number of the allegations that had been made in the Appellant's Affidavit and in the appellant's written submissions in support of the stay application. So far as might be relevant, the first respondent explained the circumstances in which he had been provided with copies of the reports of Dr Khanna and Dr Bassett. The purpose of that evidence was to deny the allegation that the first respondent had colluded with those doctors to produce false reports. The first respondent also indicated that he was aware of Dr Skerritt's report but that he had not relied upon the report in forming his opinions. He stated that he did not know a Dr Risbey and had never read a report by a doctor with that name.
The subpoenas
Generally an appeal from a decision of the Tribunal can only be brought on a question of law: s 105(2) of the SAT Act. The appeal is in the nature of a judicial review rather than an appeal by way of rehearing so that further evidence is not admissible in the appeal: Commissioner for Consumer Protection v Carey [2014] WASCA 7.
However, s 105(13) provides that in certain circumstances an appeal may be brought under s 105 on any ground whether it involves a question of law, a question of fact or a question of mixed law and fact. In Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115, Beech AJA (as his Honour then was) held that an appeal in which s 105(13) was engaged was an appeal by way of rehearing.
The appellant must demonstrate that the decision or order the subject of the appeal was the result of some legal, factual or discretionary error in an appeal by way of a rehearing: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172. The appellate court can, but usually does not, receive further evidence. That is to be contrasted with an appeal by way of hearing de novo in which the matter is heard afresh and decided on the evidence that is presented in the hearing: Allesch v Maunz.
Although s 503(2) of the Mental Health Act refers to s 105 of the SAT Act, the effect of s 504 of the Mental Health Act is to equate an appeal under that Act to an appeal in which s 105(13) is engaged. Accordingly, the appeal is by way of a rehearing and further evidence may be admissible subject to the principles that apply to determine the admissibility of additional evidence in an appeal. It follows that the appellant could seek to obtain further evidence by serving subpoenas to compel the production of documents and the attendance of witnesses to testify if the evidence that he proposed to adduce was admissible in the appeal.
The scope of an appeal under s 503 of the Mental Health Act, read with s 105 of the SAT Act, is necessarily defined by the nature and effect of the decision or order about which the appellant is dissatisfied and against which he or she appeals. An application under s 494 of the Mental Health Act is for a review by the Tribunal of a decision made by the MHT. The object of the review is for the Tribunal to make the correct and preferable decision at the time of the decision under review: s 27 of the SAT Act. Section 27 and s 29 of the SAT Act do not empower the Tribunal to deal with a matter that is 'different in essence' from that which was before the original decision‑maker: LS v Mental Health Review Board [2013] WASCA 128 [97] (Murphy JA). Accordingly, the role of the Tribunal in this matter was to make the correct and preferable decisions under s 386 and s 387 of the Mental Health Act as at the time the MHT made its decisions on the initial and first periodic reviews of the CTO. Those decisions were to be made primarily by reference to the criteria specified in s 25(2) of the Act.
The appeal from the Tribunal required the appellant to demonstrate that there had been a material error of fact or law made by the Tribunal in its decision or that there was some other sufficient ground for the appeal. The court's powers on finding that the Tribunal had made a material error are specified in s 105(9) but, ordinarily, the court's task in an appeal by way of a rehearing is to substitute the correct decision for the decision that was made below and which was infected by error.
The appellant's notice of appeal, and his submissions in the appeal, challenged the ultimate decision of the Tribunal rather than particular intermediate findings. Put simply, the appellant contended that the Tribunal erred in finding that he suffered from a mental illness that required treatment. He did not contend that the Tribunal misapplied any of the statutory criteria specified by s 25 of the Mental Health Act nor did he expressly submit that, if he did suffer from a mental illness, the CTO should nevertheless have not been made, confirmed or continued (that submission would have been inconsistent with his emphatic denial that he suffered from a mental illness and his core allegation that the evidence presented in the Tribunal by the first respondent, Dr Khanna and Mr Sultan was fabricated to further a conspiracy against him).
The appellant was provided with a copy of the second respondent's file prior to a directions hearing held on 2 November 2016. However, he contended that documents were missing from the file. He pointed to a statement made by Dr Varughese in an email to the first respondent dated 1 December 2014 (attachment 'IB 2' to the Primary Affidavit) that he was aware from 'available documentation' that the appellant had suffered from a psychiatric illness for many years that had been essentially untreated. The appellant submitted that this must have been a reference to the report of Dr Skerritt made in 1980 but that report had not been included in the second respondent's file. He also contended that reports by Dr Risbey ought to have been, but were not, included in the second respondent's file, along with the reports of Dr Bassett and Dr Khanna and 'hundreds' of documents. He also contended that Dr Varughese ought to produce the report of Dr Skerritt and other reports having regard to the statement made in his email to the first respondent.
As to those matters:
(a)The first respondent stated that he was aware of Dr Skerritt's report but he did not know Dr Risbey and had not seen any report provided by him. There was no reasonable basis for suggesting that the second respondent ought to have had in its possession copies of any report that may have been produced by Dr Risbey in the early 1980s or around 1994.
(b)Dr Varughese advised the court that he did not have a copy of Dr Skerritt's report and that the only document that he had in his possession was a copy of an email that he had sent to the first respondent on 1 December 2014;
(c)I ordered that a copy of the second respondent's file as disclosed to the appellant be provided to the court. A copy of Dr Bassett's report (which was addressed to the appellant's general practitioner) and a copy of Dr Khanna's report (which had been obtained at the request of the appellant) were on the file. The reports were attached to the Primary Affidavit and the Tribunal had made Dr Khanna's report available to the parties.
(d)A copy of Dr Skerritt's report was not in the second respondent's file. The first respondent did not state how he had become aware of Dr Skerritt's report but there was no basis for rejecting his evidence that the report was not relevant to the views that he had formed concerning the appellant's mental state given that the report had been made in the 1980s. It was, as a matter of common sense, very difficult to see how reports made in the early 1980s or around 1994 could be relevant to an assessment of the appellant's mental state in early 2016 other than in the most general historical way.
(e)Further, and in any event, the Tribunal found that the appellant's mental health had deteriorated immediately prior to when the CTO was made (and it is relevant to note that the first respondent had revoked a community treatment order made by Dr Varughese in 2014, and for which the first respondent had been the nominated supervising psychiatrist, as he did not consider that the appellant's mental state was so parlous as to warrant compulsory treatment).
A subpoena was served on Dr Varughese. As has been noted, Dr Varughese had written a community treatment order in respect of the appellant in 2014 after examining the appellant at the request of the first respondent. The appellant claimed that Dr Varughese's involvement was 'very shonky, very underhand' and that Dr Varughese had 'personal information to impart and that personal information would convict [the first respondent]' (16 December 2016, ts 47). That information apparently concerned the circumstances in which the 2014 community treatment order was revoked. In relation to another subpoena that had been served, the appellant advised that he had been informed by a member of the MHT that the first respondent had 'undue influence' over Dr Varughese. Again, that allegation related to the community treatment order made by Dr Varughese in 2014.
I indicated at the hearing of the application for a stay and the return of the subpoenas that I would review the documents produced by the second respondent to ascertain whether there was any indication that they were incomplete as the appellant alleged. I have not found any basis for concluding that the files that were produced, and which had been inspected by the appellant, were incomplete.
As to the other subpoenas that were served, the appellant sought documents:
(a)relating to allegations made by the appellant about his admission to Sir Gairdner Hospital, Swan Districts Hospital and the Frankland Centre (subpoenas served on Sir Charles Gairdner Hospital, the State Forensic Mental Health Service and the Midland Adult Community Mental Health Service);
(b)from the President of the MHT that were said to be relevant to establishing that the MHT did not have jurisdiction to make orders concerning the appellant as he lived on land that belonged to the Commonwealth and not the State;
(c)from a social worker associated with the second and fourth respondent who was allegedly present when the CTO was served on the appellant by Mr Sultan - the appellant alleges that Mr Sultan made admissions that the first respondent had been motivated by a desire to prevent the appellant from obtaining money through his damages claim;
(d)relating to complaints that had been made to the Chief Psychiatrist about the first respondent - the appellant contended that he required those documents to ascertain why the complaints had not been investigated;
(e)from the Mental Health Advocacy Service - the appellant stated that a member of the service had spoken to the first respondent and Dr Khanna about the CTO and that he also required documents to demonstrate that there were limits on the capacity of the Advocacy Service to assist him.
The principles to be applied in determining whether a subpoena should be set aside are well established. They were conveniently summarised by the Court of Appeal in Stanley v Layne Christensen Co [2004] WASCA 50, albeit in the context of a subpoena issued to gather evidence for a trial. A subpoena may be set aside for lack of apparent relevance or because it does not specify with sufficient particularity the documents sought so that the recipient is required to speculate as to whether a document is caught by its terms.
The documents sought by the appellant were not, in my view, relevant to the determination of the appeal. The decisions made by the Tribunal were based on evidence as to the appellant's mental state in early 2016. The primary issue in the appeal was whether the Tribunal made an error of fact or law on the evidence that was presented to the Tribunal, subject to the appellant's allegation that he was prevented from adducing relevant evidence at the review hearing, or that there was some other sufficient reason for the appeal.
There is no evidence, apart from the appellant's assertions, that the first respondent, Dr Khanna, or any other person nominated by the appellant has conspired with any party involved in the Transfield Action to deny whatever entitlements the appellant may have arising out of the action. It appears that the action has been inactive for many years and there is, of course, no logical reason why the respondents, or any of the psychiatrists whose reports are before the court, would seek to fabricate their opinions to assist any party associated with the action. For completeness, I would add that an appeal from the decisions of the Tribunal on the making and continuation of the CTO could not provide an appropriate vehicle for considering any allegation made by the appellant concerning the Transfield Action, attempts to cause him physical harm, the adequacy of home care services that he has received, the roles of the Chief Psychiatrist and the Mental Health Advocacy Services or complaints that he may have made about the respondents, various psychiatrists and others. None of those allegations could constitute a sufficient reason for hearing an appeal from the decisions of the Tribunal.
Further, there was no reasonable basis for concluding that the second respondent had suppressed reports dating back to the 1980s and 1990s. Any report that may have been provided by Dr Risbey over 20 years previously would be irrelevant except, perhaps, if it provided evidence that the appellant had been experiencing symptoms of a mental illness at that time. Obviously, a report suggesting that the appellant did not suffer from a mental illness in the early 1990s does not establish that he was not unwell in 2016 (and the Tribunal accepted evidence from the first respondent that the appellant's mental condition had deteriorated in a period immediately prior to when the CTO was made). The same observations apply to the medical records of Sir Charles Gairdner Hospital, Swan Districts Hospital and the Frankland Centre.
The grounds of appeal
The conduct of the review (grounds 1, 3 and 4)
Read broadly, grounds 1, 3 and 4 allege that the appellant was denied natural justice by the Tribunal in the conduct of the review. In my view, there was no substance to that allegation.
A review of the transcript of the proceedings in the Tribunal indicates that:
(a)The first hearing of the appellant's application was adjourned to enable the appellant to obtain a second opinion regarding his mental health. A second opinion was obtained from Dr Khanna. That opinion confirmed the opinion of the first respondent.
(b)Although the resumed hearing was conducted in a relatively informal way, the appellant was given a fair opportunity to present his case. He was permitted to cross‑examine the witnesses and to make submissions. The appellant did not give evidence on oath or affirmation but he was asked questions by the Tribunal to elicit matters relevant to his mental health and personal circumstances. Indeed, the Tribunal put various matters to the first respondent in light of the appellant's statements during the hearing that were relevant to whether a CTO was necessary to provide for the appellant's care and treatment.
It must be borne in mind that the decisions under review concerned the making and continuation of the CTO. Accordingly, the primary concern of the Tribunal was with expert evidence regarding the appellant's mental state and his treatment needs. Dr Khanna provided an opinion at the request of the appellant and, as has been noted, the opinion was consistent with the opinions and evidence provided by the first respondent.
Ground 2
The effect of ground 2 was to complain generally about the Tribunal's findings of fact. The Tribunal's findings reflected the evidence given by the first respondent, Dr Khanna and Mr Sultan. The appellant's complaint was, in substance, that the Tribunal refused to accept his assertions that he did not suffer from a mental illness and that the first respondent, Dr Khanna, Mr Sultan and others had conspired to fabricate their reports and evidence. The Tribunal did not mistake or misapprehend the evidence nor was its reasoning illogical or its findings not based on the evidence that was presented.
The opinions of Dr Bassett and Dr Kay, that formed part of the evidence received on the stay application, were entirely consistent with the opinions expressed by the first respondent and Dr Khanna and the findings made by the Tribunal. The Appellant's Affidavit contained no evidence, apart from his assertions, that the appellant was not suffering from a mental illness in 2016 or that the CTO was not an appropriate order having regard to the criteria specified in s 25 of the Mental Health Act.
Ground 5
The effect of the Tribunal's decision was merely to confirm the making of the CTO and the decision of the MHT on 1 April 2016 that the CTO should continue. The CTO was subject to quarterly reviews and the Tribunal's decision could not be said to have determined that the CTO should continue indefinitely. The Tribunal's decision had no effect on the appellant's entitlement to pursue any legal claim.
The ex parte motion
The appellant filed a motion dated 24 November 2016 that was entitled 'Motion for Leave to File Notice of Appeal'. The motion was accompanied by an affidavit made by the appellant in which he stated that the Principal Registrar had refused to allow the appellant to commence an appeal against the decision made by the MHT on 16 September 2016 confirming the continuation of the CTO. The appellant sought to institute the appeal after the respondents gave notice of a contention that the appeals were moot given that the MHT's order of 16 September 2016 was made after the review in the Tribunal so that the CTO remained in force by reason of the MHT's order and not the earlier decision of the Tribunal.
The statutory scheme was summarised earlier in these reasons. The scheme provides for a staged right of review and appeal. In particular, the Mental Health Act does not confer jurisdiction on this court to conduct a review of a decision of the MHT. The Act only confers jurisdiction on this court to determine an appeal from a decision or order of the Tribunal. Accordingly, the Principal Registrar was correct to refuse the appellant's proposed notice of appeal and the motion filed by the appellant must be dismissed.
GDA 1/2017
By notice of appeal filed in GDA 1/2017 the appellant sought to appeal to this court against an order made by the MHT on 23 December 2016 confirming the continuation of the CTO. The appellant commenced the appeal despite being advised by the MHT that he could not appeal its decision directly to this court (23 December 2016, page 19) and notwithstanding the decision of the Principal Registrar in November 2016.
This court does not have jurisdiction to hear and determine an appeal from the decision of the MHT and the appeal must be struck out.
Conclusion
In my view, the appellant's appeals had no reasonable prospect of succeeding on the material filed in the application for a stay. Accordingly, the application would have been refused even if the CTO had been revoked and the appeals from the MHT's decisions had been competent.
As I have explained, the parties were given a further opportunity to make submissions on the disposition of the appeals after being advised that the subpoenas served by the appellant would be set aside. Those submissions did not raise any new matters concerning the grounds of appeal. However, the appellant made the Further Application at the hearing and the respondent contended that the appeals should be dismissed on the additional ground that they were moot as there was no order that the court could now make concerning the Tribunal's decisions and the CTO.
The Further Application reflected the appellant's wish to turn the appeal into an omnibus inquiry into all of his grievances, complaints and allegations. There was no basis for joining any of the proposed additional parties having regard to the subject matter of the Tribunal's decisions and the appeals and the court's limited appellate jurisdiction. The Further Application will be dismissed.
As to the utility of the appeals, the position is, of course, that the court cannot now make any decision affecting the CTO. However:
(a)the appeals were not entirely moot prior to the decision to revoke the CTO. It was possible that an error had been made that affected the validity of the order or which undermined the factual basis on which it had been made or continued. A finding to that effect would have armed the appellant with a basis for applying for a review of the CTO under s 390 of the Mental Health Act;
(b)in my view, it was in the interests of justice to determine the appeals notwithstanding that the CTO had been revoked. The appellant alleged that he had been denied natural justice in the Tribunal. That was a matter that should ordinarily be determined given that it concerns the proper administration of justice. Further, the appellant made serious allegations regarding the first respondent (and others). The parties were entitled to have those allegations determined so far as was possible within the limitations of the court's appellate jurisdiction.
The appeals will be dismissed. There was no basis for any allegation that the Tribunal was in error in reaching its decisions; it had regard to the relevant statutory criteria and the evidence was uniformly to the effect that the appellant suffered from a mental illness, that he was in need of an involuntary treatment order and that the CTO was an appropriate means of providing necessary treatment.
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