B v Mental Health Tribunal - [2020] TASSC 10

[2020] TASSC 10

COURT: SUPREME COURT OF TASMANIA

CITATION: B v Mental Health Tribunal [2020] TASSC 10

PARTIES:  B
  v
  MENTAL HEALTH TRIBUNAL

FILE NOS:  2087/2019, 2859/2019
DELIVERED ON:  8 April 2020
DELIVERED AT:  Hobart
HEARING DATE:  12 December 2019
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Health Law – Treatment and care of mentally ill persons – Extent and exercise of tribunal powers – Mental Health Tribunal (Tasmania) – Disqualification for actual bias or apprehended bias – Weight given to advance care directive.

Re Refugee Tribunal; ex parte H [2001] HCA 28, 179 ALR 425; Hunter and New England Area Health Service v A [2009] NSWSC 761, 74 NSWLR 88, distinguished.
Aust Dig Health Law [1030]

REPRESENTATION:

Counsel:
             Appellant:  S Fitzgerald
             Attorney-General:  M E O'Farrell SC
Solicitors:
             Appellant:  Legal Aid Commission of Tasmania
             Attorney-General:  Solicitor General

Judgment Number: [2020] TASSC 10
Number of paragraphs: 66

Serial No 10/2020
File Nos 2087/2019
2859/2019

B v MENTAL HEALTH TRIBUNAL

REASONS FOR JUDGMENT BLOW CJ

8 April 2020

The appellant has appealed from two determinations that were made in relation to her by the Mental Health Tribunal. The right of appeal is conferred by s 174 of the Mental Health Act 2013 ("the Act"). The appellant suffers from schizophrenia. When unwell, she experiences distressing paranoid psychotic symptoms.
The background to these appeals can be summarised as follows:
· On 22 March 2019 the Tribunal made a treatment order in respect of the appellant pursuant to s 39 of the Act. The order specified that it was to remain in effect until 21 September 2019 unless discharged sooner. Under s 42(2) of the Act, a treatment order is authority for a patient to be given treatment without informed consent. It can authorise a patient to be admitted to and, if necessary detained in, an "approved facility". The order was applied for by a medical practitioner.
· On 31 May 2019 the Tribunal, constituted by Mr M Verney (the Chair), Ms C Brown and Dr E Walker, conducted a "60-day review" of the treatment order under s 181(1)(a) of the Act. It conducted a hearing that was attended by the appellant. She was represented by a legal practitioner from the Legal Aid Commission, Ms Irwin. At the conclusion of that hearing, the Tribunal made two minor variations to the treatment order, deleting references to anti-anxiety medication and radiological treatment. The result was that the order, as varied, was to continue in force until 21 September 2019. The chairperson of the Tribunal gave oral reasons for the Tribunal's decision at that time.
· The appellant applied to the Tribunal for a written statement of its reasons for making the determination of 31 May. On 10 July 2019 the Tribunal provided a written statement of reasons.
· On 9 August 2019 the appellant appealed from the decision of 31 May, seeking the discharge of the treatment order. That is the first of the two appeals before…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] TASSC 10
Decision Date: 8 April 2020

CaseChat Overview and Summary

The case before the court involved the appellant, who challenged the decision of the Mental Health Tribunal in Tasmania, questioning their assessment of her decision-making capacity. The dispute centred on whether the Tribunal correctly determined that the appellant lacked the capacity to make decisions about her own mental health assessment and treatment. The High Court of Australia was asked to review the Tribunal's decision to ensure it adhered to the statutory requirements under the Mental Health Act.

The legal issues before the court were whether the Tribunal correctly applied the statutory criteria for determining decision-making capacity and whether the Tribunal's decision was free from bias. Specifically, the court examined whether the Tribunal's conclusion that the appellant lacked decision-making capacity was supported by evidence and aligned with the statutory framework. Additionally, the court needed to determine whether there were any grounds for disqualifying the decision-maker for actual or apprehended bias.

The court found that the Tribunal had not erred in its assessment of the appellant's decision-making capacity. The Tribunal's reasoning was based on the appellant's lack of insight into her mental illness and her inability to associate her symptoms with schizophrenia or attribute her improvement to treatment. This led the Tribunal to conclude that the appellant was unable to use or weigh information relevant to the decision. The court also noted that while the Tribunal's language was not precise, it did not affect the outcome. Furthermore, the court held that there were no grounds for disqualifying the decision-makers for bias.

The court dismissed the appeal, affirming the Tribunal's decision. The Tribunal's assessment of the appellant's decision-making capacity was found to be consistent with the statutory requirements, and no bias was identified in the decision-making process.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 7(1) of the Act relates to the meaning of the expression "decision-making capacity". It reads as follows:"(1) For the purposes of this Act, an adult is taken to have the capacity to make a decision about his or her own assessment or treatment (decision-making capacity) unless a person or body considering that capacity under this Act is satisfied that — (a) he or she is unable to make the decision because of an impairment of, or disturbance in, the functioning of the mind or brain; and(b) he or she is unable to — (i)understand information relevant to the decision; or(ii)retain information relevant to the decision; or(iii)use or weigh information relevant to the decision; or(iv)communicate the decision (whether by speech, gesture or other means)." The combined effect of s 9(1)(c) and s 40 is that a treatment order may not be made in respect of a person who "does not have decision-making capacity". By virtue of s 7(1)(b)(iii), it was not open to the Tribunal to conclude that the appellant lacked decision-making capacity unless it was satisfied that she was unable to make a decision about her own assessment or treatment because of an impairment of, or disturbance in, the functioning of the mind or brain, and that, amongst other things, she was unable to use or weigh information relevant to the decision. In its reasons for the decision of 31 May, the Tribunal dealt with the issue of decision-making capacity at [13] and [14]. Those paragraphs read as follows:"[13](a) Once again the evidence before the Tribunal particularly from Dr ... is clear that the patient does not have insight into treatment for her mental illness.(b)Whilst the Tribunal was told that the patient acknowledges the existence of the diagnosis referred to above, it is clear on the evidence that she does not associate the symptoms in respect of schizophrenia (such as paranoia and hearing of voices) with a mental illness nor does she associate the improvement as to those symptoms with the treatment that she has received.(c)On this basis the Tribunal is not satisfied that the patient is able to weigh and use information in respect of any decision for treatment and is therefore satisfied that the patient does not have decision making capacity.[14] The Tribunal is satisfied this treatment criterion is met." Once again, the Tribunal was loose in its choice of words. In [13(c)], it said that it was "not satisfied that the patient was able to weigh and use information ...". It had to decide whether it was satisfied that the patient was unable to do that, not whether it was satisfied that the patient was able to do that. However this was plainly not a situation whether the Tribunal found itself in a state of equipoise, with the result that its finding depended upon one party or the other bearing an onus of proof. It is clear from subpars (b) and (c) that the Tribunal was satisfied that the appellant was unable to use or weigh information relevant to the making of a decision about her assessment or treatment because of her lack of insight into her condition. It follows that ground 3 must fail.

Ratio Decidendi

Legal Principle Established

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