CG and MENTAL HEALTH TRIBUNAL
[2021] WASAT 47
•1 APRIL 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: MENTAL HEALTH ACT 2014 (WA)
CITATION: CG and MENTAL HEALTH TRIBUNAL [2021] WASAT 47
MEMBER: JUDGE K GLANCY, DEPUTY PRESIDENT
MR R POVEY, MEMBER
DR J CAUNT, SESSIONAL MEMBER
HEARD: 2 MARCH 2021
DELIVERED : Ex tempore
PUBLISHED : 1 APRIL 2021
FILE NO/S: MHA 3 of 2021
BETWEEN: CG
Applicant
AND
MENTAL HEALTH TRIBUNAL
Respondent
Catchwords:
Community Treatment order made under Mental Health Act 2014 (WA) - Review by State Administrative Tribunal - Whether criteria for making order met - Order affirmed
Legislation:
Mental Health Act 2014 (WA), s 4, s 6, s 6(1), s 18, s 25, s 394, s 494(1)
State Administrative Tribunal Act 2004 (WA), s 17(1), s 27(1), s 27(2)
Result:
Application for review dismissed
Community treatment order affirmed
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | N/A |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
These reasons were delivered orally at the conclusion of the hearing. They have been edited to correct matters of grammar and infelicity of expression.
Introduction
The applicant has applied for a review, under s 494(1) of the Mental Health Act 2014 (WA) (MHA), of the decision made by the Mental Health Tribunal (MH Tribunal) on 15 January 2021 to continue a community treatment order made in respect of him.
The community treatment order was originally made on 4 December 2020. It is due to expire on 3 March 2021. The applicant contends that he does not have a mental illness within the meaning of s 6 of the MHA and says that the criteria for making a community treatment order which are set out in s 25(2)(a) and s 25(2)(b) of the MHA are not satisfied.
Legal framework
Pursuant to s 25(2) of the MHA, a community treatment order cannot be made unless all of the specified criteria are satisfied. Those criteria are:
(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 a serious physical or mental deterioration;
(c)that the person does not demonstrate the capacity required by s 18 to make a treatment decision about the provision of treatment to himself or herself;
(d)that treatment in the community can reasonably be provided to that person; and
(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.
'Mental illness' is defined in s 6(1) of the MHA as follows:
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.
The expressions 'treatment' and 'treatment decision' are defined in s 4 of the Act as follows:
treatment means the provision of a psychiatric, medical, psychological or psychosocial intervention intended (whether alone or in combination with one or more therapeutic interventions) to alleviate or prevent the deterioration of a mental illness or a condition that is a consequence of a mental illness, and does not include bodily restraint, seclusion or sterilisation.
treatment decision is defined as follows: treatment decision, in relation to a person, means a decision to give consent, or to refuse consent, to treatment being provided to the person.
The Tribunal on review of a decision of the MH Tribunal must have regard to certain matters. They are matters to which the MH Tribunal itself must have regard under s 394 of the MHA. Where, as in this case, the applicant is an adult the matters are:
(a)the involuntary patient's psychiatric condition;
(b)the involuntary patient's medical and psychiatric history;
(c)the involuntary patient's treatment, support and discharge plan;
(d)the involuntary 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 involuntary patient;
(f)any other things that the Tribunal considers relevant to making the decision.
Section 25(3) of the MHA requires decisions regarding the making of community treatment orders to be made having regard to guidelines published by the Chief Psychiatrist for that purpose.
Guidelines were published by the Chief Psychiatrist in December 2015. Guideline A is the guideline that applies to the making of decisions about whether or not a person is in need of an inpatient treatment order, or a community treatment order. The Tribunal has had regard to Guideline A in considering and determining this application.
Pursuant to s 17(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) this matter comes within the Tribunal's review jurisdiction because it involves a review of the decision made by the MH Tribunal to continue the applicant's community treatment order.
Under s 27(1) of the SAT Act, the hearing is therefore a hearing de novo; that is, it involves fresh consideration of the matters in issue and is not confined to matters that were before the original decision-maker, the MH Tribunal in this case. The Tribunal may therefore consider new material, whether or not it existed at the time the decision which is the subject of the review was made.
Section 27(2) of the SAT Act provides that the purpose of the review is to produce the correct and preferable decision at the time of the review on the evidence before it.
An applicant does not bear any legal or practical onus of proof. An applicant is not required to prove that a different decision should be made from that which was made by the MH Tribunal.
The Tribunal's powers on review are set out in s 29 of the SAT Act. Section 29(3) provides:
The Tribunal may
(a)affirm the decision that is being reviewed; or
(b)vary the decision that is being reviewed; or
(c)set aside the decision that is being reviewed and
(i)substitute its own decision; or
(ii)send the matter back to the decision maker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate,
and, in any case, may make any order the Tribunal considers appropriate.
Material before the Tribunal
The material to which the Tribunal had regard in determining this application is:
a)the evidence of the applicant himself. The applicant appeared in person at the hearing;
b)the evidence of Dr N who is the applicant's treating psychiatrist under the community treatment order (the treating psychiatrist). The treating psychiatrist also gave evidence in person at the hearing;
c)the medical report of Dr N, dated 26 February 2021;
d)a medical report from Dr S dated 5 Janurary 2021. Dr S was for a time the applicant's supervising psychiatrists under the community treatment order;
e)a copy of the transcript of the hearing before the MH Tribunal which took place on 15 January 2021;
f)the applicant's application.
Assessment against the criteria
Mental illness for which treatment is needed
The applicant was referred to City East Metropolitan Health Service in June 2019 for assessment. At that time it was determined that specialist care was not required.
In November 2020 he was assessed for the first time by a psychiatrist at which time Dr S diagnosed him as having a mental illness, being delusional disorder. Dr S determined that the applicant was in need of treatment for that mental illness but that treatment in the community was not possible. As a result the applicant was referred to the Bentley Hospital in-patient unit where he was assessed by a different psychiatrist Dr C. Dr C had the applicant admitted as an involuntary patient.
Dr N's evidence was that the applicant was discharged into the community on the community treatment order the subject of the review order after about eight days.
Dr N's evidence was that he saw the applicant for the first time on Thursday 25 February 2021 and having received his file and spoken to him he agreed with the diagnosis of delusional disorder.
Dr N's evidence was that the applicant was referred for assessment in November 2020 by the Health Service itself as a result of concerns for his health that resulted from communications he was having with officers of the Health Service over an extended period of time.
The applicant's evidence was that [redacted].
The applicant says that he discovered this at some time in 2018 [redacted]. He says this was a significant turning point for him. Since then the applicant has spent his time gathering proof [redacted]. Dr S's report states, and the applicant confirmed that he has written many letters to government agencies and Ministers in an attempt to have people take his concerns seriously. Dr N gave evidence, consistent with that of the applicant that it was a complaint which the applicant made to the Health Service that resulted in it referring the applicant for psychiatric assessment.
Dr N gave evidence that the idea that [redacted] is the crux of his delusion.
[redacted].
The report of Dr S indicated that the applicant had spent something in the order of $250,000 trying to prove [redacted].
The applicant's evidence was that that figure was not correct. The applicant said some of the $250,000 has been spend on establishing his [redacted]. His evidence was that he had left his truck driving job and had set up business [redacted]. He said, and we accept, that at that time he had three properties. His evidence was that new endeavours failed because of the [redacted]. The applicant said that after 2018 when he realised this had occurred he had spent two years without income focussed on trying to prove [redacted]. His evidence was that he had sold one property and had mortgaged a second in order to fund his living expenses while doing so. He said that he had spent about $30,000$40,000 on legal advice relevant to his complaint.
Although, as we have previously noted, the applicant's view is that he is not mentally ill, he produced no medical evidence to support that view. We note that he is in the process of seeking a second opinion from another psychiatrist but has not been able to obtain an appointment yet.
It is clear that the applicant does not accept that he has a mental illness or that he requires treatment for it. Based on the medical evidence, the Tribunal finds that the applicant does have a mental illness. The Tribunal accepts the opinion of the treating psychiatrist which was consistent with that expressed in Dr S' medical report, that the applicant is someone who is suffering from a mental illness, being delusional disorder. Delusional disorder is a specific diagnosis of a mental illness described in internationally accepted standards being the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) and the International Classification of Diseases (ICD-10).
We are satisfied and find that the applicant is a person in need of treatment for his mental illness. This is because we accept the evidence of Dr N that although delusional disorders are difficult to treat, the applicant has not been treated for this illness before and early indications are the applicant has had a very positive response to treatment. The applicant is less distressed than he was when he was admitted to Bentley Hospital and less preoccupied with the subject matter of his delusion.
Risk to himself, others or of deterioration
The evidence established and we find that, without treatment, there is a significant risk to the applicant suffering serious deterioration in his mental health. Both Dr S and Dr N reported that it would take some months to ascertain the effectiveness of the treatment which the applicant will not undertake voluntarily.
We accept the unchallenged evidence of the treating psychiatrist that if his treatment were not to be continued it was expected that the improvements made to date would regress and the applicant would find himself experiencing the same level of distress and preoccupation with his delusional beliefs that he was experiencing prior to his admission to Bentley Hospital.
From that evidence and the evidence of Dr N and Dr S that there is a risk to the applicant's financial position and of his relationships with family members deteriorating further if treatment is not provided.
Does not demonstrates capacity to make treatment decisions
The evidence of both psychiatrists, which we accept, is that the applicant displays no insight into his illness and the need for medication. Given the applicant's view that he does not require treatment because he does not suffer from a mental illness we find that the applicant would not be willing to accept treatment on a voluntary basis in the community.
We find that the applicant does not understand the matters involved in making treatment decisions. We accept the psychiatrists' evidence that the applicant has no insight into his condition and he does not understand the benefits of treatment and cannot adequately weigh up the effects of the treatment, both positive and negative. Accordingly, we are satisfied and find that the applicant does not demonstrate the capacity to make treatment decisions for himself.
Can treatment in the community reasonably be provided?
We accept Dr N's evidence that the applicant's medical treatment can be administered to him in the community. His evidence was that the applicant did attend and receive his treatment under the community treatment order last Thursday as required. Dr N expressed his gratitude to the applicant for doing so.
We find on the basis of that evidence that treatment can reasonably be provided to the applicant in the community.
Is there a way of adequately providing treatment that would involve less restriction on the applicant's freedom of choice and movement?
We accept the Dr N's evidence, and we find, that in the circumstances there is presently no less restrictive means of providing the applicant with the treatment he requires, given that he is unwilling to accept treatment voluntarily.
Conclusion
Based on the findings which we have made, we are satisfied that the correct and preferable decision in this case is to dismiss the applicant's application and confirm the community treatment order.
Orders
The Tribunal orders that:
1.The application for review is dismissed.
2.The decision of the respondent, the Mental Health Tribunal, made 15 January 2021 that pursuant to s 395 of the Mental Health Act 2014 (WA) the patient is in need of a community treatment order and the order remains in force, is affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
CH
Associate to Judge Glancy
1 APRIL 2021
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