Am and Mental Health Review Board and Anor
[2013] WASAT 156
•17 SEPTEMBER 2013
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: MENTAL HEALTH ACT 1996 (WA)
CITATION: AM and MENTAL HEALTH REVIEW BOARD & ANOR [2013] WASAT 156
MEMBER: MS D TAYLOR (SENIOR MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 17 SEPTEMBER 2013
FILE NO/S: MHA 9 of 2013
BETWEEN: AM
Applicant
AND
MENTAL HEALTH REVIEW BOARD
First respondentAND
MINISTER FOR HEALTH (INCORPORATED AS THE BOARD FOR BENTLEY HOSPITAL)
Second respondent
Catchwords:
Mental Health - Community Treatment Order - Terms of order lacking precision - Review of Board decision order valid in substance - Preliminary issue - Whether order complied with legislative requirement - Treatment plan
Legislation:
Mental Health Act 1996 (WA), s 5, s 68, s 148(a)
Result:
The terms of the Community Treatment Order complied with the requirements of s 68(1)(b) of the Mental Heath Act 1996 (WA)
Summary of Tribunal's decision:
As a preliminary issue, the Tribunal held that a Community Treatment Order containing a treatment plan that specified, among other things, when and where the applicant should attend his out patient appointments for medication and follow up, complied with the provisions of the Mental Health Act 1996 (WA). The provisions were intended to ensure that a patient would know the terms of an order with which he was required to comply so as to be treated in the community, rather than as an involuntary patient in hospital.
Category: B
Representation:
Counsel:
Applicant: Ms M Sandars
First respondent : N/A
Second respondent : Ms M Georgiou
Solicitors:
Applicant: Mental Health Law Centre
First respondent : N/A
Second respondent : State Solicitor's Office
Case(s) referred to in decision(s):
A v Mental Health Review Board [2012] WASAT 139
EO v Mental Health Review Board [2000] WASC 203
R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13
RD v Mental Health Review Board [2013] WASAT 80
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
I am required to determine a preliminary issue in a proceeding that commenced by way of an application for review of a decision made by the Mental Health Review Board (Board) on 10 June 2013.
At the hearing before the Board, the applicant's solicitor challenged the validity of the Community Treatment Order (CTO) made concerning him on 23 May 2013, on the basis that the order was void because it lacked specificity. She relied on the absence of any writing on the form of order (Form 10) in the box marked 'Directions for reporting' and the abbreviated hand written note of the place the patient was required to attend for his depot injections, and follow up appointments with his treating team, as the foundation for a submission that the Form 10 was so fundamentally flawed in form and substance as to render it void.
The Board rejected the submission, and noted 'validity of CTO challenged and rejected' in the space provided on its decision form headed 'Issues discussed at review'. The Board decided that the patient should remain an involuntary patient on a CTO.
On 14 June 2013 the applicant applied to the Tribunal for review of the Board's decision, pursuant to the provisions of s 148(a) of the Mental Health Act 1996 (WA) (MH Act).
Background
The applicant is a young man with a psychotic illness characterised by paranoid delusions and thought disorder. He was admitted to Bentley Hospital as an involuntary patient for the first time in 2012 and treated successfully with antipsychotic medication. His symptoms abated and his mental state improved and he was placed on a CTO on 17 October 2012 in anticipation of his discharge home.
The terms of the CTO required the patient to attend appointments at the Mill Street Centre in 6102 (the out patients clinic for Bentley Hospital) for the administration of his depot injection of antipsychotic medication and for follow up appointments with his treating team. The date of his first appointment for an injection as an out patient was noted on the CTO (9 November 2013).
The words 'Noncompliance with above plan' are written in the space on the CTO alongside the heading 'Directions for reporting'. This wording suggests that in the event that the patient does not comply with the treatment plan as outlined, a report would be made to someone in authority, and action taken most likely to result in the patient's recall to hospital.
The CTO lapsed in January 2013 and the patient remained living with his family in the community.
By April 2013 there were signs that the applicant's mental state had deteriorated. He was neglecting his studies and in conflict with his family. His sleeping pattern was disturbed and his behaviour showed signs of paranoia and thought disorder. On one occasion his car was attacked with a cricket bat by strangers whom he had followed home.
The current admission
On 18 April 2013 the applicant was admitted to Bentley Hospital as an involuntary patient detained on an Involuntary Patient Order (IPO). He was assessed as experiencing a relapse of his psychotic illness due to noncompliance with medication. He was treated with antipsychotic medication and his mental state stabilised.
On 23 May 2013 the applicant was placed on a CTO in preparation for discharge home. The CTO will expire on 22 August 2013. He opposed the making of the orders and applied to the Board to have them set aside or revoked.
The hearing before the Mental Health Review Board
On 10 June 2013 the Board convened at Bentley Hospital to hear the application. The essence of the patient's case was that the CTO was defective in form and substance because it failed to spell out the requirements of the treatment plan with sufficient clarity so as to enable him to comply with its terms. The patient's case was founded on the absence of any writing on the CTO in the box marked 'Directions for reporting' and upon the use of an abbreviation (MSC) for the address of the clinic where the treatment would take place. He relied on the decision of Templeman J in EO v Mental Health Review Board [2000] WASC 203, (EO) as providing clear guidance that clarity, precision and detail were required in the form of the order. It was submitted on his behalf, incorrectly, that the decision in EO required two appointment dates to be noted on the form.
The Board rejected the submissions and noted in a reference to the issues discussed at review:
Validity of CTO challenged and rejected.
A reading of the transcript of the hearing on 10 June 2013 reveals that the submission regarding the lack of clarity of the address to which the patient was expected to report, namely 'MSC', was not pursued with any vigour by his counsel, who conceded when questioned by the Board that the applicant knew what it meant and had been there before.
The patient's name, address and date of birth appear on the CTO. The name of the psychiatrist making the order, the supervising psychiatrist and responsible practitioner appear on the CTO also.
The practice address given for all three doctors is specified as 'MSC', being an abbreviation for Mill Street Centre, the outpatient clinic attended by the patient in 2012, when subject to the previous CTO.
The terms of the treatment plan in the CTO are given as follows:
•to accept depot injection Paliperidone 150 mg 4/52 next due 20/6/13;
•to attend appointments with treating doctor and case manager next 06/06/13;
•to allow home visits.
The Board determined that the applicant remain an involuntary patient on a CTO.
The review proceeding
On 14 June 2013 the applicant applied to the Tribunal for review of the Board's decision. He sought the following relief:
1.That the decision by the Mental Health Review Board on 10 June 2013 that Mr M should continue to be an involuntary patient is set aside.
2.A declaration that the Community Treatment Order (the CTO) is invalid.
3.A declaration that the Mental Health Review Board did not have jurisdiction to review the CTO.
4.A declaration that the CTO was void ab initio.
He claimed that the CTO was invalid and that the Board did not have jurisdiction to review the CTO.
On 2 July 2013 the Board indicated that it would abide by the Tribunal's decision and not participate in the proceeding so as to preserve its impartiality in case of any future application made by the applicant: see R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35-36).
On 16 July 2013 the Minister for Health, as the Board of Bentley Hospital, sought to be joined as second respondent to this proceeding.
In view of the recent Tribunal decision in RD v Mental Health Review Board [2013] WASAT 80, the parties requested determination of a preliminary issue fundamental the claim. The question posed was:
Whether the Community Treatment Order signed on 23 May 2013 complies with section 68(1)(b)(i) of the Mental Health Act 1996.
The parties filed written submissions in support of their respective positions.
Relevant legislation
Section 68(1) of the MH Act states:
Community treatment order, terms of
(1)A community treatment order is to specify
(a)a psychiatrist who will be responsible for supervising the carrying out of the order; and
(b)a treatment plan outlining the treatment that the patient is to receive under the order and including details of
(i)where and when the treatment is to be given; and
(ii)such other matters relating to the treatment as it is appropriate to specify;
and
(c)a medical practitioner or mental health practitioner who will be responsible for ensuring that the treatment plan is carried out; and
(d)the time when the order will lapse, being not more than 3 months after the order comes into effect.
Applicant's submissions
The submissions central to the applicant's case appear at paragraphs 16 and 21 of counsel's submissions.
Paragraph 16 states:
The Directions for Reporting were not completed on the Form 10 nor anywhere else which is a breach of s 68(1)(b)(1) because the where and when were not included. The applicant submits that an acronym MSC was used, which lacks clarity or certainty and the reporting conditions were not identified. That is the (CTO) only describes one date and does not advise about how often after that the applicant will have to attend. It is submitted that given the fact that the applicant has a diagnosed mental illness and is being prescribed paliperidone for that illness without his consent, that all reporting requirements must be crystal clear. It is submitted that these should be important considerations in deciding how de novo reviews are conducted by the Tribunal.
Paragraph 21 states:
It is submitted that the lack of any information required by the Act to be included and made on the record of the CTO is not a 'pedantic legal point'. In all the circumstances of making the CTO essential statutory ingredients for a valid CTO are missing. The missing information is a mandatory requirement that must form part of the exercise of the TP's authority to make a valid CTO. … .
The decision in EO is cited in support of the submission, with the following comments by Templeman J being given emphasis:
… the requirements for details to be given of where and when the treatment is to be given, and for other relevant matters to be specified is, I think, quite deliberate. That is because a CTO imposes an obligation or obligations on a patient which, if not complied with, can lead to revocation of the order and subsequent incarceration of the patient, thereby depriving him or her of that liberty which is so fundamental in our society.
The decision in A v Mental Health Review Board [2012] WASAT 139, (A) is cited in support of the submissions also, with Chaney J (following EO) commenting as follows:
… We also accept, as Templeman J explained in EO that the same approach is required in relation to the requirements for the making of a CTO, because although a CTO does not result in detention or continued detention of an involuntary patient, it may lead to that result in the event of breach … .
Second respondent's submissions
The submissions central to the respondent's case were as follows:
15.Firstly the fact that the box titled 'directions for reporting' is blank is not unequivocal evidence that the CTO does not comply with s 68. Provided that the necessary information is included on the form, the CTO complies with s 68.
17.Secondly the where and when are included on the form. The box entitled 'Treatment plan' states:
•to accept depot injection Paliperidone 150 mg 4152 next due 20/6/13
•to attend appointments with the treating doctor and cause manager next due 06/06/13
•to allow home visits
18.The form specifies that the Supervising Psychiatrist is Dr David Stevens, with the Practice Address listed as 'MSC', an acronym for Mill Street Clinic. Similarly, the form specifies that the Responsible practitioner is Louise Splatt, whose practice address is listed as MSC.
19.This is sufficient information to notify the applicant that his first appointment was on 6 June 2013 with his treating doctor and case manager at the Mill Street Clinic and that his second appointment as to accept an injection on 20 June 2013 at the Mill Street Clinic. This complies with s 68, as applied by Templeman J in EO.
20.Thirdly, it is sufficient to include the first or second occasions for reporting on the CTO. In EO, Templeman J considered that the 'CTO need only specify the where and when elements of perhaps the first second occasion on which the treatment was to be given'.
The decision in EO is cited as authority for the proposition that the reference on the CTO to 'Directions for reporting' is ambiguous. At [89] Templeman J says the following:
I have made reference to the fact that the box relating to directions for reporting on the form has been left blank. That is, I think, somewhat equivocal. It is not clear whether that box is intended to refer to the reporting option which the treating psychiatrist has under s 68(2) of the Act.
Additional reliance is placed upon the following passage in EO:
As the patient's treatment continued it would be open to the supervising psychiatrist to vary the order simply by adding subsequent dates and times of treatment as was considered appropriate. That would be no different, I think, from any doctor treating a patient, reviewing the progress of that patient and saying at the end of a particular consultation, 'you will come and see me in a week's time', or whatever might be appropriate. I see no administrative difficulty in dealing with a CTO in that manner.
Conclusion
I am satisfied that the CTO made on 10 June 2013 fulfils the requirements of s 68 of the MH Act because the terms of the order convey sufficient information to the patient about the persons who will be treating him and the treatment plan that he must follow to leave him in no doubt as to the initial date and place of his depot injection, and its frequency (4/52).
I am also satisfied that the initials MSC stand for the Mill Street Clinic, and that the patient knew this to be the case, as he had been there on a number of occasions in 2012 when subject to his previous CTO.
I have had regard to the objects of the MH Act set out in s 5 that states:
Objects of Act
The objects of this Act include
(a)to ensure that persons having a mental illness receive the best care and treatment with the least restriction of their freedom and the least interference with their rights and dignity; and
(b)to ensure the proper protection of patients as well as the public; and
(c)to minimize the adverse effects of mental illness on family life.
There is little doubt that part of the purpose of the provisions of s 68 of the MH Act is to ensure that patients who are released into the community on terms with which they must comply are entitled to know the terms with some precision, not least because noncompliance is likely to result in return to hospital as an involuntary patient.
I share Templeman J's view that the reference to 'Directions for reporting' on the form is ambiguous and open to more than one interpretation.
Whilst I find that the terms of s 68 of the MH Act were complied with in the making of the CTO on 23 May 2013, it seems to me that those charged with the responsibility for completing forms for patients labouring under the disability of a mental illness, would do well to make their instructions as clear as possible. Whilst the initials of an outpatient clinic may be used routinely by health professionals, there are obvious advantages in the name of a place a patient is to attend being set out clearly, not least because he may require some help from others unfamiliar with the jargon to comply with the terms of an order.
Orders
The Tribunal orders that:
1.The preliminary issue is answered as follows:
•The Community Treatment Order signed on 23 May 2013 complies with the provisions of s 68(1)(b)(i) of the Mental Health Act 1996 (WA).
2.The proceeding is listed for directions on 20 August 2013 at 10 am.
I certify that this and the preceding [39] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS D TAYLOR, SENIOR MEMBER
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