C v Chief Psychiatrist
[2011] ACTSC 195
•5 December 2011
HUMAN RIGHTS
C v CHIEF PSYCHIATRIST & ANOR
[2011] ACTSC 195 (5 December 2011)
APPEAL – appeal from ACT Civil and Administrative Tribunal – application for a psychiatric treatment order – whether Tribunal failed to consider relevant matters – whether Tribunal’s determination was against weight of evidence – whether Tribunal reversed onus of proof – whether Tribunal considered irrelevant matters – whether Tribunal was affected by apprehended bias - appeal dismissed – order of Tribunal confirmed
HUMAN RIGHTS – medical treatment without consent – right to liberty and security of person – right to a fair trial – public authorities – reasonable limits on human rights
Mental Health (Treatment and Care) Act 1994 (ACT), ss 5, 7, 8, 11, 23, 24, 26, 28, 141
ACT Civil and Administrative Tribunal Act 2008 (ACT), s 8, 22, 26
Human Rights Act 2004 (ACT), ss 10, 18, 21, 28, 40
Kracke v Mental Health Review Board & Ors (General) [2009] VCAT 646 (23 April 2009)
ON APPEAL FROM THE ACT CIVIL AND ADMINISTRATIVE TRIBUNAL
No. SCA 25 of 2011
Judge: Higgins CJ
Supreme Court of the ACT
Date: 5 December 2011
IN THE SUPREME COURT OF THE )
) No. SCA 25 of 2011
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE ACT CIVIL AND ADMINISTRATIVE TRIBUNAL
BETWEEN:C
Appellant
AND:CHIEF PSYCHIATRIST
First Respondent
AND:ACT CIVIL AND ADMINISTRATIVE TRIBUNAL
Second Respondent
ORDER
Judge: Higgins CJ
Date: 5 December 2011
Place: Canberra
THE COURT ORDERS THAT:
The appeal be dismissed.
The order of the ACT Civil and Administrative Tribunal be confirmed.
The appellant (‘C’) seeks to challenge a decision of the ACT Civil and Administrative Tribunal (‘the Tribunal’) to make a Psychiatric Treatment Order (‘PTO’) for a period of six months from 21 March 2011. It has since been extended for a further six months.
The order was made pursuant to an application dated 15 March 2011 by Dr Bernie Towler, a psychiatrist. He deposed, in support of that application, that the appellant was, he believed:
unable because on (sic) mental dysfunction or mental illness –
(i)to make reasonable judgements about matters relating to his/her (sic) health or safety; or
(ii)to do anything necessary for his/her health or safety;
and as a result, [his] health or safety is, or is likely to be, substantially at risk;
OR
to be, because of mental dysfunction or mental illness to do serious harm to others.
The form of application is somewhat confused. It bespeaks a standard form that the applicant did not really attend to. This is apparent when the terms of the Mental Health (Treatment and Care) Act 1994 (ACT) (‘MH (T&C) Act’) are considered:
Firstly, s 11 provides:
(1)This section applies if a person (the applicant) believes on reasonable grounds that—
(a)the health and safety of another person (the subject person) is, or is likely to be substantially at risk because the subject person is unable, because of mental dysfunction or mental illness—
(i) to make reasonable judgments about matters relating to the subject person’s health or safety; or
(ii) to do anything necessary for the subject person’s health or safety; or
(b)the subject person is likely, because of mental dysfunction or mental illness, to do serious harm to others.
It is important for an applicant to choose which of the various alternatives are asserted to be applicable rather than having to examine the grounds for belief asserted to see which of the alternatives are applicable.
The applicant did set out reasons in support of the application for a PTO.
[C], aged 54 years, is well known to ACT MHSs (sic). His GP indicates that he has deteriorated over the past month with increasing agitation and irritation.
He was brought into the MHAU in the ED at TCH by police after allegedly threatening members of the public at the Mawson shops and engaging in nuisance behaviour.
He was assessed in the MHAU to be threatening, pressured, thought disordered, delusional and attending to auditory hallucinations. The notes state he was speaking about being under surveillance, problems with viruses, computers.
Today in PSU, [C] is agitated and verbally abusive/insulting using coarse language repeatedly. He is very guarded about what has happened to bring him into hospital or how he is. He speaks about a mercenary whom he plans to put in jail and that a ‘massive payback is coming his way’ and that he is ‘very highly trained’ in weapons and that he ‘can get hold of a gun’. He appears thought disordered, agitated and highly threatening and is demanding to be released to go home.
His diagnosis was:
Schizoaffective disorder, manic with psychotic features this admission.
His current history was:
[C] is acutely unwell, manic, psychotic and threatening.
His previous history was:
[C]’s file in the ACT dates back to 1999 with multiple admissions. He has been on Treatment Orders in the past. He also has a history of antisocial personality traits, drug and alcohol abuse and a forensic history including arson (burning down his flat) and incarceration. He has a history of making extremely violent threats to staff (eg using a bomb or shooting).
Dr Towler considered that further treatment with anti-psychotic medication (risperidone) was required.
Clearly, those facts, if made out, would warrant intervention.
A hearing was convened on 21 March 2011 before Mr Chris Chenoweth, Dr L Drew and Ms L Steeper.
Dr Towler outlined to the Tribunal the current situation as he saw it. He said:
So Mr [C] continues to be unwell, in our view. He continues to be extremely verbally aggressive and uncooperative. He usually refuses to speak with medical staff, so it’s quite difficult to engage. We had commenced him on Risperidone, so he has had his first – sorry, we have increased to that to 50 mg IMI and he got a dose of that on Tuesday last week. And our plan is to give a second dose and hopefully he will be well enough to go back into the community after the second dose. The plan for that is in two weeks. So that is 29 March. So by way of up – that is by way of update.
Ms Wearne, a solicitor, appeared for C. She queried the basis for the diagnosis offered.
It was apparent that C did not accept that he was mentally unwell.
He also challenged some of the factual statements reported. Particularly, he disputed that he needed a higher dose of risperidone than he was receiving. He claimed that Lewis Bond, his case worker, would support that view.
There was some discussion of other matters but at the end of what C had to say Dr Drew indicated that he supported the making of a PTO to achieve the higher dosage that he considered was indicated.
C responded:
As long as you put me on a treatment order where Lewis Bond is there to give me the injection or my doctor is giving me the injection and he looks after my medical situation, then it will not turn into a Supreme Court appeal.
Nevertheless, C contended that Dr Colin Andrews, a neurosurgeon, would attribute his symptoms to a reactive epilepsy. Further, he instructed Ms Wearne that he would not agree to an order being made.
The President (Mr Chenoweth) then announced that the Tribunal would make the order sought.
C has appealed from this order.
The grounds, as now amended, are set out in paragraph 4 of the Notice of Appeal. They are:
i.Jurisdictional error – the legislative prerequisites for the Tribunal to be seized of the application were not satisfied and accordingly the Tribunal lacked jurisdiction to make the treatment order;
ii.Jurisdictional error – the legislative prerequisites for the making of a Psychiatric Treatment Order were not satisfied or addressed by the Tribunal and the Tribunal accordingly lacked jurisdiction to make the treatment order;
iii.The appellant was denied a hearing according to law;
iv.The Tribunal’s determination was against the weight of evidence;
v.The Tribunal erred in law by reversing the onus of proof;
vi.The Tribunal erred in law by applying the incorrect standard of proof;
vii.The Tribunal erred in law by having regard to irrelevant matters;
viii.The Tribunal erred in law have failing to take into account relevant matters;
ix.The Tribunal heard the Application in breach of the apprehended bias rule;
x.The Tribunal erred in law by failing to having regard to sections 5 and 7 of the Mental Health (Treatment and Care) Act 1994;
xi.The Tribunal erred in law by failing to have regard to section 18 of the Human Rights Act 2004;
xii.The Tribunal erred in law by failing to have regard to section 21 of the Human Rights Act 2004;
xiii.The Tribunal erred in law by failing to give reasons for its decision to impose a treatment order;
xiv.The Tribunal’s determination to impose the treatment order was, upon the facts, unreasonable and/or plainly unjust;
xv.The Tribunal erred in law by failing to conduct its inquiry and to reach its decision in accordance with section 52 of the ACT Civil and Administrative Tribunal Act 2008.
On 24 August 2011, the Tribunal published a statement of reasons for the decision of 21 March 2011. In so far as that publication was suppressed, I set aside that direction. Those reasons were expressed as follows:
REASONS FOR DECISION
1.On 21 March 2011, the ACT Civil and Administrative Tribunal ("the Tribunal") conducted an enquiry pursuant to section 24 of the Mental Health (Treatment and Care) Act 1994 ("MH Act") in respect of patient C. The Tribunal was established by a direction of the General President under section 89 of the ACT Civil and Administrative Tribunal Act ("ACAT Act") and section 28 of the MH Act. The Tribunal was constituted by Mr CG Chenoweth, Acting Presidential Member, Dr L Drew, psychiatrist and Senior Member and Ms L Steeper, community representative and Member.
2.At 9.00am on 12 March 2011, C was brought to the Canberra Hospital Psychiatric Services Unit by the police. The statement from the police officer who detained him under section 39 (1) of the MH Act, in addition to the other matters required by the section, gives the following reason for the action taken:
"C presents as very verbally aggressive and unpredictable. Had been aggressive towards a member of the public who feared for their safety."
3.C was examined by a doctor at the hospital. The doctor formed the view that he was mentally ill and made an involuntary detention order under section 41 of the MH Act. The reason for this decision as set out in the order was as follows:
"C presents with irritable affect, poor asleep, pressured speech, tangential thoughts, delusional themes and attending to auditory hallucination. He has limited insight into his current condition, and poor judgement. There is a risk of harm to self via misadventure and he requires involuntary admission under the mental health act -- least restrictive alternative."
The authorisation form indicates that involuntary detention commenced at 12:30 PM on 12 March 2011.
4.On 14 March 2011, a psychiatrist at the Canberra Hospital Psychiatric Services Unit, Dr Siew, made an application for a further period of detention not exceeding seven days under section 41 (2) of the MH Act.
The evidence to support the opinion that C was suffering from mental illness was as follows:
"(C) was brought into the MHAU over the weekend by the police after he was allegedly abusive to a member of the public who consequently feared for their safety. He was paranoid, grandiose, delusional, thought disordered, pressured and attending to auditory hallucinations on assessment in the MHAU. Today he is verbally abusive and irritable, thought disordered and speaking about a mercenary whom he plans to report to the police, threatening a "massive payback" coming his way."
The evidence that C had refused treatment and care was as follows:
"(C) is demanding to go home, asserts that he is perfectly okay and refusing to consider any change in his medication to a more suitable depot."
The evidence that detention was necessary for the person's own health and wellbeing or for protection of the public was as follows:
"(C) is psychotic and lacks insight and judgement. He is a risk of his safety and well-being and may well be a risk to members of the public. He claims to have access to firearms and to be "very highly trained" in their useage."
On the question of whether treatment or care could be provided in a less restrictive environment, the response was:
"no, (C) needs to be detained for his safety and well-being and for the safety of members of the public who may be at risk."
The application was granted by a Presidential Member of the Tribunal on 15 March 2011, pursuant to section 41 (2) (b) of the MH Act.
5.An application for a psychiatric treatment order under section 28 of the MH Act was made by a psychiatric registrar in the Canberra Hospital Psychiatric Services Unit on 15 March 2011. The application set out the reasons for which the order was sought, referred to C's previous history of treatment for mental health issues back to 1999, the fact that he had been on treatment orders in the past, his history of antisocial personality traits, drug and alcohol use and a forensic history including arson and incarceration. It referred to his history of making violent threats to staff including the bombing or shooting. The application set out the applicant's opinion that:
"(C) is acutely unwell, manic, psychotic and threatening. He does not have insight and lacks judgement."
In setting out the detailed reasons to support the application, the applicant noted:
“(C), aged 54 years, is well known to ACT MHS's. His GP indicates that he has deteriorated over the past month with increasing agitation and irritation. He was brought into the MHAU in the ED at TCH by police after allegedly threatening members of the public at the Mawson shops and engaging in nuisance behaviour.
He was assessed in the MHAU to be threatening, pressured, thought disordered, delusional and attending to auditory hallucinations. The notes state that he was speaking about being under surveillance, problems with viruses, computers.
Today in PSU (C) is agitated and the verbally abusive/insulting using coarse language repeatedly. He is very guarded about what has happened to him to bring him in to hospital or how he is. He speaks about a mercenary whom he plans to put in jail and that a "massive payback is coming his way" and that he is "very highly trained" in weapons and that he "can get hold of a gun". He appears thought disordered, agitated and highly threatening and is demanding to be released to go home.”
6.At the hearing of the application on 21 March 2011, C was represented by a solicitor from Legal Aid ACT. C was present and acknowledged that he had received a copy of the application and had discussed it with his solicitor. The applicant was also present and gave the Tribunal an update on the condition of C and his attitudes and behaviour in the ward. While C disputed it, the applicant said that C had been extremely verbally aggressive and unco-operative. The plan was to give C medication with a view to him returning to the community in about two weeks. C's solicitor was able to question the applicant, and both the solicitor and C made comments about the application. C denied that his behaviour in the ward was as indicated by the applicant, and said that he had been cracking jokes, and been jovial and helpful.
7.The Tribunal had access to the Tribunal's own file containing the psychiatric assessment of Dr Siew, as well as the assessment by the applicant who had been involved in the ongoing treatment and care of C while on the ward. The Tribunal was satisfied that there had been an appropriate assessment under section 23 of the MH Act. The Tribunal also had access to the hospital notes relating to C, and a summary of his previous admissions to hospital and previous treatment orders, dating back to 1995.
8.The objectives of the MH Act are set out in section 7. Those objectives provide the context in which the Tribunal makes orders or otherwise exercises powers under the MH Act. The Tribunal's role is not punitive or adversarial: it is to act in the best interests of the patients who because of mental illness or mental dysfunction, not be able to make judgements for themselves in their best interests.
9.In the case of Chief Psychiatrist and A (Mental Health) [2011] ACAT 21 the Tribunal set out in detail the general principles and procedures that the MH Act requires be undertaken in relation to hearings for mental health orders. Those principles and procedures are those which guided the Tribunal in this matter.
10.In conducting hearings in the presence of patients who are detained in hospital and maybe angry, delusional or otherwise emotionally affected, the experience of members of the Tribunal is to be careful about what is said in their presence to avoid increasing their feelings or their distress. While it is necessary to be reasonably satisfied about the matters required by section 26 of the MH Act and that they have been taken into account, and regard must always be had to the objectives set out in section 7 of the MH Act, these may not be stated in the hearing itself. They are matters which were in the minds of Tribunal members during the hearing, and in evaluating the condition of C and in deciding whether the making of a treatment order was in his best interests.
11.An important consideration in each case is whether the patient is in a position to meaningfully consent to any proposed order, and if he or she is, whether he does consent or not. This may become clear in the hearing through the comments of the doctors or the person themselves, and it may become a decision which the person the subject of the application opposes strongly. The way in which this issue is decided and expressed by the Tribunal varies from case to case but the issue is recorded in the bench sheet.
12.Similarly, the extent to which the Tribunal members speak or express their views during the hearing will vary, depending on whether they feel the need to explore issues and what affect their comments may have on the person the subject of the application.
13.The agreement of the members to the making of an order is indicated by them signing the bench sheet recording the order. The order is usually pronounced by the presiding member, but on behalf of the Tribunal as a whole.
14.The Tribunal gives considerable weight to the prior history of people who are the subject of applications. As with other medical conditions, the prior history and medical assessments, both mental and physical, are relevant in assisting the Tribunal to make appropriate judgements. The judgements need to be made on the issues referred to in section 26 of the MH Act. These include the person’s mental capacity to consent, their understanding of their illness and their capacity to maintain a treatment regime without compulsion, and the risk to themselves and to the community if treatment is not provided under an order. A further consideration is the ability of the person to live in a community if treatment is not provided or complied with. All of these assessments must be made in the light of the objectives in section 7 of the MH Act.
15.Balancing the matters set out in section 26 of the MH Act is the process in which the Tribunal members assess the evidence and the reactions of the person the subject of the application. For the reasons set out above, these are not necessarily spelt out verbally in the course of the hearing.
16.Before an order for psychiatric treatment can be made under section 28 of the MH Act, the Tribunal must be satisfied on four matters that are set out in the section. The first is whether C has a mental illness.
Mental illness is defined in the dictionary of the MH act as follows:
mental illness means a condition that seriously impairs (either temporarily or permanently,) the mental functioning of a person and is characterised by the presence in the person of any of the following symptoms:
(a) delusions;
(b) hallucinations;
(c) serious disorder of thought form;
(d) a severe disturbance of mood;
(e) sustained or repeated irrational behaviour indicating the presence of the symptoms referred to in paragraph (a), (b), (c), or (d).
17.The transcripts of the hearing indicated that C disputed the need for an order, and wanted to continue treatment by his own general practitioner. He refused to accept the evidence of the applicant that members of the treating team had been in contact with his general practitioner, and that this doctor had become concerned about C's deterioration. C indicated that he would not cooperate with treatment other than with a particular community nurse, that he proposed to take Supreme Court proceedings for damages for wrongful imprisonment, and that he proposed to go to America to travel around. He also indicated that he would not work cooperatively with the treating team in hospital.
18.The Tribunal was satisfied on the balance of probabilities that C had a "mental illness" as defined in the dictionary to the MH Act. C's behaviour, and diagnosis of schizoaffective disorder that had become manic with psychotic features, indicated that he suffered from a serious impairment of his mental functioning as evidenced by delusions, serious disorders of thought form and mood. The evidence for this conclusion was that contained in the application for the 7 day emergency detention order, the application itself, the evidence of the behaviour and attitude of C while in the hospital, and C’s own comments during the hearing. In making this decision, the Tribunal was assisted by the expert knowledge of its psychiatrist member and the experience in mental health issues of its community member.
19.The second matter on which the Tribunal must be satisfied is that there are reasonable grounds for believing that, because of the mental illness, the person is likely to do serious harm to himself or herself or someone else, or suffer serious mental or physical deterioration unless subject to involuntary psychiatric treatment.
20.There are two issues for the Tribunal to be reasonably satisfied on. First, there must be reasonable grounds for believing that because of the mental illness the person will do serious harm to himself or someone else, or suffer serious mental or physical deterioration. Secondly there must be reasonable grounds for believing that those things will occur unless there is involuntary psychiatric treatment.
21."Harm" is not restricted to a deliberate act of self harm. The concept is a broad one that can include harm caused by, amongst other things, misadventure, disinhibited behaviour, loss of reputation, physical neglect and financial loss. The prospect of reaction or retaliation by members of the public against comments or outbursts of the person, and the effect of his threats on others including staff at the hospital and police with the prospect of a breakdown in the reputation of, and social support for, a person can constitute "harm".
22.In this case, the Tribunal was satisfied that the circumstances leading to the detention of C as evidenced by the original police report, the threats to staff and police during the time that C had been was in hospital and his refusal to engage in treatment and thereby not improve in his condition, constituted reasonable grounds for believing that C would suffer harm unless the mental illness was treated. The evidence available to the Tribunal was that in the professional opinion of the treating team, if the correct medication was given to C, then his symptoms would be likely to abate, and his mental illness would improve. The assessment of his present condition and his history over a long period of time led the Tribunal to the view that without on going anti-psychotic medication and treatment by the mental health team C's condition would deteriorate, leading to the prospect of further police attention and forced hospitalisation.
23.At the hearing, the evidence from the applicant was that C had been quite uncooperative with medical staff since he had been admitted to hospital, that he disagreed with the diagnosis of his mental illness, and that C's general practitioner has become concerned that the deterioration of C in recent months because he had become more agitated and irritable and unwell. C disputed this opinion. In an exchange with Dr Drew, C indicated that he would not cooperate with the treating team, that he would only accept injections from one particular community nurse and his own general practitioner. The Tribunal was satisfied that this lack of cooperation with the treating team constituted reasonable grounds for believing that unless C was subject to an involuntary psychiatric treatment order, he would not accept treatment.
24.While C asserted that he would accept treatment from the people that he chose, his statement could not in the Tribunal's view constitute grounds for not making an order where the Tribunal considered on the evidence that an order needed to be made. The Tribunal came to the view that C did not have the capacity to properly consent to any order. In those circumstances, an assertion by C as to what treatment he would comply with could not be relied upon. A failure to comply with treatment was likely to result in the decline in C’s condition, and therefore a mandatory treatment order was required.
25.The third condition that must be satisfied under section 28 is that the psychiatric treatment is likely to reduce the harm or deterioration (or the likelihood of harm or deterioration) mentioned in paragraph (b) and result in an improvement in the person's psychiatric condition. C has a long history of mental illness and treatment in hospital and under involuntary treatment orders. C himself accepted at the hearing that treatment assists his condition. The opinion of the treating team as expressed by the applicant was that treatment in hospital was necessary to assist in re-establishing an appropriate drug regime. The Tribunal is satisfied that this condition has been met.
26.The final condition upon which the Tribunal must be reasonably satisfied it is that the treatment cannot be adequately provided in a way that would involve less restriction of the freedom of choice and movement of the person than would result from the person being an involuntary patient.
27.The Tribunal noted the opposition of C to accepting treatment other than on terms that he was prepared to define, his indication that he would leave the ACT rather than accept treatment, and his history of the hospitalisation and treatment orders in the past. The Tribunal was satisfied that in the absence of an order, C would not accept appropriate treatment to treat his mental illness, and that it was not possible for treatment to be provided in a less restrictive way or with less freedom of choice and movement other than with an involuntary psychiatric treatment order.
28.After considering the matter, the Tribunal was satisfied that each of the requirements of section 28 of the MH Act was made out and that it was otherwise appropriate to exercise its discretion to make a psychiatric treatment order notwithstanding the objection of C.
29.The Tribunal notes that the making of an order is a significant breach of a person's human rights, in that it requires them to accept medical treatment that they would not otherwise choose to do. The provisions of the MH Act require that this treatment be given in a manner that is least restrictive of the rights and as supportive of the dignity and self-respect of a person with mental illness as is possible. However, the proper care and protection of a person with a mental illness can in appropriate circumstances require that treatment be given under an involuntary order. The Tribunal was satisfied that this was such a case.
30.The Tribunal determined to make an order for a period of six months, but also to review that order prior to expiry to determine whether it was still appropriate, given the medical condition of C. The Tribunal also notes that an order may be revoked at any time if evidence warrants it. There is a statutory obligation on the Chief Psychiatrist to inform the Tribunal if during the period of the order the Chief Psychiatrist is satisfied that C is no longer a person in respect of whom the Tribunal could make an order. In such a case, the order would be discharged by the Tribunal, and C would revert to the status of a voluntary patient.
………………………………..
Mr C.G Chenoweth
Acting Presidential Member for the Tribunal
On their face, those reasons address the relevant legal and factual issues necessary to support the making of a PTO.
I turn, therefore, to the submissions counsel for C put against the order.
First, he pointed to s 23 of the MH (T&C) Act. That section provides:
ACAT must consider assessment
Before making a mental health order in relation to a person, the ACAT must consider—
(a)an assessment of the person conducted under an assessment order under division 4.2; or
(b)another assessment of the person that the ACAT considers appropriate.
Whilst it does not seem that an assessment of C was ordered by the Tribunal under Div 4.2 of the Act, it is apparent that it considered the assessments made by the applicant and, before that, other psychiatrists, were appropriate. It follows that s 23 was in fact satisfied. That was a view that was reasonable on its face.
Under s 24 an inquiry was mandatory. That was done on 21 March 2011.
Mr Thomas submits that the hearing was defective because, firstly, the Tribunal failed to consider the matters referred to in s 28 of the Act.
Section 28 provides:
Criteria for making psychiatric treatment order
The ACAT may make a psychiatric treatment order in relation to a person if—
(a)the person has a mental illness; and
(b)the ACAT has reasonable grounds for believing that, because of the illness, the person is likely to—
(i)do serious harm to himself, herself or someone else; or
(ii)suffer serious mental or physical deterioration;
unless subject to involuntary psychiatric treatment; and
(c)the ACAT is satisfied that psychiatric treatment is likely to reduce the harm or deterioration (or the likelihood of harm or deterioration) mentioned in paragraph (b) and result in an improvement in the person’s psychiatric condition; and
(d)the treatment cannot be adequately provided in a way that would involve less restriction of the freedom of choice and movement of the person than would result from the person being an involuntary patient.
There was ample and convincing evidence that the appellant had a mental illness. There was also ample evidence that absent increased dosage of medication the illness would lead to worsening symptoms or, at least, the continuation of that worsening noted in the psychiatric reports. There were involved in that deterioration threats to the physical safety of others. There was certainly a serious deterioration in the appellant’s mental condition and his capacity to function in society.
It was also clear that he did not accept that his condition had deteriorated and was unwilling voluntarily to accept an increased dosage of medication.
Accordingly, the submission that s 28 was not complied with cannot be accepted.
It is then objected that the Tribunal failed to proceed on evidence and its determination was against the weight of that evidence.
The evidence was, it is true, partly based on reports of conduct of the appellant drawing him to the attention of police and hence, mental health professionals. However, those reports were corroborated by the appellant’s conduct and warranted the conclusions of fact to which the Tribunal came. It is not, as s 8 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (‘ACAT Act’) makes clear, a requirement that the Tribunal comply with the rules of evidence. Section 26 of the ACAT Act provides that the Tribunal may inform itself as it thinks appropriate.
That is what the Tribunal did. Whilst the appellant disputed the interpretation put on his actions his very interaction with the Tribunal supported the conclusion to which it came.
The next submission was that the Tribunal reversed the onus of proof.
It is the case that the Tribunal needed to be satisfied of various matters. It is undoubtedly the case that it needed to be satisfied of those matters at least on the balance of probabilities. However, with the application of ss 8 and 26 of the ACAT Act there is no doubt, from the reasons published, that the Tribunal was affirmatively satisfied of the matters referred to in s 28 of the MH (T&C) Act.
I do not see how the President’s comment that “we have to make a decision on the whole of the evidence before us today” can be construed as misunderstanding or misinterpreting the onus of proof.
The next submission is that the Tribunal had regard to irrelevant matters, that is, “[h]earsay assertions concerning the appellant’s prior criminal behaviour, including assertions relating to drug abuse, violence and arson”.
I accept that those matters were before and considered by the Tribunal. However, those matters were capable of being considered both as a manifestation of the history of mental illness from which the appellant suffered and the risks to others and to himself if those symptoms of his illness were not treated effectively.
It was next submitted that the Tribunal failed to take account of relevant matters, being the matters referred to in s 26 of the MH (T&C) Act. In particular reference was made to:
(f)that the person’s welfare and interests should be appropriately protected;
(g)that the person’s rights should not be interfered with except to the least extent necessary;
(h)that the person should be encouraged to look after himself or herself;
(i)that, as far as possible, the person should live in the general community and join in community activities;
(j)that any restrictions placed on the person should be the minimum necessary for the safe and effective care of the person;
(k)the alternative treatments, programs and other services available, including—
(i)the purposes of those treatments, programs and services; and
(ii)the benefits likely to be derived by the person from those treatments, programs and services; and
(iii)the distress, discomfort, risks, side effects or other disadvantages associated with those treatments, programs and services;
(l)any relevant medical history of the person;
The Tribunal did address those issues. It rejected any notion that any greater restriction be imposed than the increased dosage. It would be administered, as before, by his general practitioner or his favoured case worker, Mr Lewis Bond.
It was apparent that the Tribunal had regard to the appellant’s prior history; including dealing with the Tribunal, particularly Dr Drew, the psychiatric member.
Indeed, it is a curious complaint that the Tribunal failed to have regard to the appellant’s medical history when an earlier complaint was that it was considered.
It was further objected that the Tribunal was affected by apprehended bias in that it was apparent that Dr Drew had some previous dealings with the appellant (“once or twice”). The appellant had been before the Tribunal before and it was apparent that was the source of that contact. It was also apparent that all relevant records were before the Tribunal, as indeed they should have been.
It could be no indication of bias that there was a previous Tribunal hearing involving Dr Drew as a member. He revealed that fact. No objection was taken either by the appellant or his solicitor. It was apparent that though the appellant denied any mental illness, the contrary was apparent not only from his history but also from the manner in which he conducted himself before the Tribunal.
Indeed it seems, from page 20 of the Appeal Book, that the appellant welcomed Dr Drew’s likely understanding of his situation. The reference at page 23 of the Appeal Book by Dr Drew that “[the appellant] is putting in a good performance at the moment” was clearly a reference to the appellant’s current demeanour to which the Tribunal was entitled to have regard.
This submission is rejected. That is not to say that it is not necessary for Tribunal members, as Dr Drew did, to indicate prior dealings with a respondent or applicant as the case may be. Such prior knowledge will be unavoidable but it gives the opportunity to object if there is reason to do so.
The Tribunal, it is next submitted, failed to have regard to ss 5 and 7 of the MH (T&C) Act.
Section 5 sets out a number of matters to be disregarded as, by themselves, indicating mental illness. Adhering to particular political philosophies or religious or other beliefs are obvious matters. Engaging in immoral or illegal behaviour is also referred to (s 5(g) to (k)). However, in this case, those matters, though some were engaged in by the appellant in the past, were not accepted as alone indicating mental illness.
Section 7 sets out the objectives of the MH (T&C) Act:
Objectives of Act
This Act has the following objectives:
(a)to provide treatment, care, rehabilitation and protection for mentally dysfunctional or mentally ill persons in a manner that is least restrictive of their human rights;
(b)to provide for mentally dysfunctional or mentally ill persons to receive treatment, care, rehabilitation and protection voluntarily and, in certain circumstances, involuntarily;
(c)to protect the dignity and self-respect of mentally dysfunctional or mentally ill persons;
(d)to ensure that mentally dysfunctional or mentally ill persons have the right to receive treatment, care, rehabilitation and protection in an environment that is the least restrictive and intrusive, having regard to their needs and the need to protect other persons from physical and emotional harm;
(e)to facilitate access by mentally dysfunctional or mentally ill persons to services and facilities appropriate for the provision of treatment, care, rehabilitation and protection.
I have already accepted that it was open to the Tribunal to rely on records, apparently being business records, to establish relevant facts.
Section 8 was also referred to. That sets out the objectives set for the Territory:
Objectives of Territory
In providing services and facilities for mentally dysfunctional or mentally ill persons, the Territory shall have regard to the following objectives:
(a)to establish, develop, promote, assist and encourage services and facilities—
(i)that provide a strong and viable system of treatment and care, and a full range of services and facilities, for mentally dysfunctional or mentally ill persons; and
(ii)that take into account the various religious, cultural and language needs of mentally dysfunctional or mentally ill persons; and
(iii)that minimise the adverse effects of mental dysfunction or mental illness in the community; and
(iv)that are comprehensive and accessible; and
(v)that are designed to reduce the incidence of mental dysfunction or mental illness in the community; and
(vi)that provide for intervention at an early stage of mental dysfunction or mental illness; and
(vii)that support mentally dysfunctional or mentally ill persons in the community and coordinate with other community services;
(b)to ensure that mentally dysfunctional or mentally ill persons are informed of their rights and entitlements under this Act and, in doing so, to make all reasonable efforts to ensure that the relevant provisions of this Act are explained to those persons in the language, mode of communication or terms that they are most likely to understand;
(c)to assist and encourage voluntary agencies to provide services for mentally dysfunctional or mentally ill persons;
(d)to promote a high standard of training for those responsible for the care of mentally dysfunctional or mentally ill persons;
(e)to consult with persons who are receiving or have received such services, their carers and the community about—
(i)the provision of services and facilities for mentally dysfunctional or mentally ill persons and to establish formal and informal consultative mechanisms for this purpose; and
(ii)the development of mental health policy; and
(iii)planning for mental health services; and
(iv)the delivery of services and facilities; and
(v)the evaluation and review of policies and services;
(f)to promote the welfare of mentally dysfunctional or mentally ill persons and to enhance community awareness of mental health issues.
There is nothing to indicate that the Tribunal was not acting in conformity with those objectives so far as they were engaged by the proceedings.
The Human Rights Act 2004 (ACT) (‘HR Act’) ss 10, 18 and 21 were also pleaded in aid:
10Protection from torture and cruel, inhuman or degrading treatment etc
...
(2)No-one may be subjected to medical or scientific experimentation or treatment without his or her free consent.
...
18Right to liberty and security of person
(1)Everyone has the right to liberty and security of person. In particular, no-one may be arbitrarily arrested or detained.
(2)No-one may be deprived of liberty, except on the grounds and in accordance with the procedures established by law.
...
21Fair trial
(1)Everyone has the right to have criminal charges, and rights and obligations recognised by law, decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
Also relied upon are ss 40, 40A and 40B of the HR Act.
Kracke v Mental Health Review Board & Ors (General) [2009] VCAT 646 (23 April 2009) was referred to.
That decision (per Bell J) emphasises that the human rights of persons subject or sought to be subjected to mental health orders must be respected. They have the right to the minimum interference with those rights that is practicable. There is, however, nothing in the hearing or the orders made which seems to me to conflict in any way with those rights.
It should be noted that s 28 of the HR Act permits “reasonable limits” to be placed upon human rights. It seems to me that the provisions of the MH (T&C) Act are consistent with those limits and the application by ACAT of those provisions seems to me to be within those limits.
A more fundamental challenge was that the Tribunal did not give reasons for its decision. It did do so after the order was made. Those reasons are set out in this judgment.
The appeal is brought pursuant to s 141 of the MH (T&C) Act:
141Appeals from ACAT to Supreme Court
(1)An appeal to the Supreme Court from a decision of the ACAT in a proceeding may be brought by—
(a) someone in relation to whom the decision was made; or
(b) someone who appeared, or was entitled to appear under section 80 (1) (Appearance), before the ACAT in the proceeding; or
(c) the discrimination commissioner; or
(d) anyone else with the court’s leave.
Note See the ACT Civil and Administrative Tribunal Act 2008, pt 8.
(2)The Magistrates Court Act 1930, section 214 (3) and (4) (Appeals in cases other than civil cases) applies in relation to an appeal under this section as if it were an appeal mentioned in that Act, section 214 (1).
(3)The ACT Civil and Administrative Tribunal Act 2008, section 86 (Appeal to Supreme Court) and section 87 (Sending documents and things to Supreme Court) do not apply to a decision or appeal to which this section applies.
The only issue is whether the Tribunal could lawfully deliver a decision as it did. Section 22B of the ACAT Act recognizes that reasons may be given on request following a decision. That is a course sometimes followed by the courts of law.
Certainly, a refusal to give reasons at all is a serious, and potentially fatal, flaw in those proceedings but that is not this case. The reasons published were cogent and apparently supportive of the decision made. The decision made is neither, on its face, unreasonable or unjust.
Finally, it cannot be accepted that the decision was that of the President alone. The transcript clearly indicates that the two other members assented to it.
Accordingly, the appeal must be dismissed and the order confirmed. I will hear the parties as to consequential orders, if any.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 5 December 2011
Counsel for the Appellant: Mr R Thomas
Solicitor for the Appellant: Rosemary Benet
Counsel for the First Respondent: Ms A Tonkin
Solicitor for the First Respondent: ACT Government Solicitor
Counsel for the Second Respondent: No appearance
Solicitor for the Second Respondent: The Registrar, ACT Civil and Administrative
Tribunal
Date of hearing: 21 September 2011
Date of judgment: 5 December 2011
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