CHIEF PSYCHIATRIST and C (Mental Health)
[2011] ACAT 58
•21 March 2011
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
CHIEF PSYCHIATRIST AND C (Mental Health) [2011] ACAT 58
MH 191 of 1995
Catchwords: Mental Health – Psychiatric Treatment Orders – criteria to be considered – practice and procedure of the Tribunal in considering applications for orders – objectives of the Mental Health (Treatment and Care) Act – balancing of relevant factors – capacity of the patient to consent.
List of legislation: ACT Civil and Administrative Tribunal Act 2008, s.89
Mental Health (Treatment and Care) Act 1994, ss.7, 23, 24, 26, 28, 39 and 41
List of cases: Chief Psychiatrist and A [2011] ACAT 21
Tribunal: Mr C.G Chenoweth, Acting Presidential Member
Dr L. Drew, Senior Member
Ms L. Steeper, Member
Date of Orders: 21 March 2011
Date of Reasons for Decision: 24 August 2011
REASONS FOR DECISION
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.
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."
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.
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.
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.”
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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.
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.
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.
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.
"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".
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.
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.
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.
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.
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.
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.
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.
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.
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
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO:
APPLICANT:
RESPONDENT:
COUNSEL APPEARING: APPLICANT:
RESPONDENT:
SOLICITORS: APPLICANT:
RESPONDENT:
OTHER: APPLICANT:
RESPONDENT:
TRIBUNAL MEMBER/S:
DATE/S OF HEARING: PLACE: CANBERRA
DATE/S OF DECISION: PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
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