CHIEF PSYCHIATRIST and X (Mental Health)
[2011] ACAT 16
•24 January 2011
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
CHIEF PSYCHIATRIST and X (Mental Health) [2011]
ACAT 16
MH 11 of 2011
Catchwords: MENTAL HEALTH – Whether criteria for order met
Legislation:Mental Health (Treatment and Care) Act 1994 (ACT) s 28, 36J, 36L
Human Rights Act 2004
Tribunal: Ms L. Crebbin, General President
Dr L. Drew, Senior Member
Ms L. Steeper, Member
Date of Orders: 24 January 2011
Date of Reasons for Decision: 18 February 2011
AUSTRALIN CAPITAL TERRITORY )
CIVIL AND ADMINISTRATIVE TRIBUNAL ) MH 11 of 2011
BETWEEN: CHIEF PSYCHIATRIST
Applicant
AND:X
Respondent
Tribunal: Ms L. Crebbin, General President
Dr L. Drew, Senior Member
Ms L. Steeper, Member
PSYCHIATRIC TREATMENT ORDER
On Monday 24 January 2011 the ACT Civil and Administrative Tribunal held an inquiry regarding the above-mentioned application pursuant to Section 24 of the Mental Health (Treatment and Care) Act1994 in respect of X.
AND THE TRIBUNAL ORDERS that X be subject to a Psychiatric Treatment Order.
Unless sooner revoked, this order has effect for 6 months.
IT IS NOTED that X has the capacity to consent to the order but refuses to do so.
THE TRIBUNAL NOTES that it will review this order on its own motion prior to expiry.
REASONS FOR DECISION
These reasons for decision explain why a Psychiatric Treatment Order was made by the ACT Civil and Administrative Tribunal (the Tribunal) on 24 January 2011 in relation to X. The Tribunal was advised that X had completed a tertiary qualification and usually worked as a security officer as well as in another part time job. At the time of the inquiry, X had been on leave from her usual employment for some time and was in receipt of a social security sickness allowance.
HISTORY OF THE APPLICATION
On 15 January 2011 the Tribunal received notification that X had been involuntarily detained on an emergency basis pursuant to section 41(1) of the Mental Health (Treatment and Care) Act 1994 (the MHA). On 17 January 2011 an application (the emergency application) was made to the Tribunal for the further detention of X pursuant to section 41(2) of the MH Act. The emergency application was made by a psychiatrist on the basis that the applicant had reasonable grounds for believing that X suffers from a mental illness and required immediate treatment and care. The emergency application included the following statements:
Brought in by AFP, disoriented, distressed and talking irrationally. Has suicidal ideation, grandiose and paranoid delusions. Judgment and insight poor. Still in manic state of Bipolar Affective Disorder
and
Has been refusing medications, doesn’t think she is ill, wants to go home
On 17 January 2011 the tribunal ordered (the emergency order) that X be involuntarily detained for a further period expiring on 25 January 2011.
On 18 January 2011, X lodged an application for appeal from the emergency order. Her application was treated as an application for review of the emergency order pursuant to section 41(4) of the MH Act. That section requires the Tribunal to conduct a review within 2 working days of receipt of an application. The review was conducted at the Psychiatric Services Unit (PSU) of the Canberra Hospital on 20 January 2011 by Appeal President Stefaniak. X, a psychiatric registrar, a representative of the Public Advocate of the ACT and a lawyer from Legal Aid ACT were present at the hearing. President Stefaniak confirmed the emergency order on review.
On 20 January 2011, the Tribunal received an application for a psychiatric treatment order (PTO). The application was listed for inquiry to be held at PSU before a tribunal constituted by three members on 24 January 2011.
The inquiry was attended by X, Ms Wearne from Legal Aid ACT, a support person from the Personal Helpers and Mentors Service (PHAMS) and Dr Etop Etim, a psychiatric registrar. Ms Wearne represented X on a duty lawyer basis. The Tribunal heard from each of the participants and considered the following documents:
(i) a report written by psychiatrist Dr Paul Fitzgerald dated 19 January 2011;
(ii) the application for the PTO dated 20 January 2011;
(iii) a 6 page handwritten document prepared by X dated 22 January 2011;
(iv) 4 pages of notes headed “PSU In-patient psychiatry assessment” that appeared to be authored by Dr Etim on a date that was not clear but was somewhere between 19 and 24 January 2011.
The four criteria that must be met before the Tribunal can consider making a PTO are set out in Section 28 of the MHA. The section provides:
28 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.
The tribunal’s consideration of each criterion is detailed below.
SECTION 28(a)
The first criterion requires a finding on the balance of probabilities that X has a mental illness. The term mental illness is defined in the dictionary of the MHA 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).
In his report Dr Fitzgerald opined that X has a schizoaffective disorder. He referred to having interviewed X during a period in which she was admitted as an inpatient in the psychiatric ward at Calvary Hospital in January 2011. Dr Fitzgerald’s opinion was repeated in the application made to the tribunal.
X accepts that she has a mental illness. She told the tribunal that she had first been an in-patient in a hospital interstate in 2004. She agreed that she had a history of psychological and psychiatric review and treatment before 2004. She said that she moved to Canberra in December 2005.
X explained to the tribunal that she had used a range of psychiatric services since she moved to Canberra to live. She has been supported by a PHAMS worker for approximately three years. She said that the first few years after her move were very difficult. Nevertheless, in that time she studied, worked and appears to have remained well enough to avoid hospitalisation until 2010.
X told the tribunal that her duties and her hours of work as a security officer were changed in 2010. Her income was reduced and she had to reduce her expenditure. She therefore cut down on the medication that she was using because she could not meet the cost.
She was hospitalised on a voluntary basis as an in-patient at Calvary Hospital three times during 2010 and had been an in-patient at Calvary Hospital for a couple of weeks immediately before the emergency detention action was taken on 15 January 2011. The hospitalisation affected her ability to work and exacerbated her financial difficulties.
X also told the tribunal that the most recent admission had, in her view, been precipitated by a bout of physical illness that affected the efficacy of the medication she was taking. The Tribunal accepts that that may have been the case.
Whatever the contributing factors, the Tribunal was satisfied on the basis of this information, that X does have a mental illness that seriously impairs her functioning. The illness is severe enough to lead to hospitalization at times and to interfere with her ability to study and to work.
SECTION 28 (b)
The second criterion requires the Tribunal to consider whether there are 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;
This criterion requires the tribunal to be satisfied of two things. First, there must be reasonable grounds for believing that, because of the mental illness, one or other of the things described in paragraph (i) or (ii) is likely to occur. Secondly, the tribunal must be satisfied that there are reasonable grounds for believing that those things are likely to occur unless there is involuntary psychiatric treatment.
There is no suggestion that there is any risk that the respondent might harm others because of her illness.
The application for a PTO stated that X had made threats to commit suicide. The document headed “PSU In-patient psychiatry assessment” refers to X as having vague thoughts of self harm. The emergency application referred to suicidal ideation. No particulars were provided of the time, content or context of these things. In her written submission to the tribunal X denied that she would harm herself, that she had threatened to do so or that she had thought about doing so. The tribunal had insufficient information to reach any conclusion about these assertions.
A person can cause serious harm to themselves in a range of ways other than through a deliberate act of self harm. The Tribunal has long accepted that the concept of “harm” in s 28(b)(i) is a broad concept that includes harm caused by, amongst other things; misadventure, disinhibited behaviour, physical neglect and financial loss. The application recorded some behaviour on the part of X that appeared to be connected to mania and that could be seen as evidencing a real risk of harm through misadventure. In her notes, X denied that the behaviours involved any potential for harm or that the behaviours were connected to any mania.
Ultimately, it was not necessary for the tribunal to make a decision about whether it was likely that X would do serious harm to herself, because it was clear that there was a reasonable basis for believing that X suffers a serious deterioration in her mental state because of her illness. During 2010, X’s mental state deteriorated so significantly because of her illness, that she was hospitalised on three occasions.
The question of whether the Tribunal had a reasonable basis for believing that serious deterioration was likely to occur unless X was subject to involuntary psychiatric treatment was less clear. X said that she wished to be treated on a voluntary basis and that she would accept the treatment she required. She pointed out that she had sought out treatment, including hospitalisation, on a voluntary basis in the past. She said that there was no need for treatment on an involuntary basis.
Dr Etim, on behalf of the treatment team, said that the application for a treatment order had been made because although X had sought treatment, including hospitalisation, on a voluntary basis; she had not consistently engaged with treatment, had on occasions failed or forgotten to take medication, made a unilateral decision to reduce medication prescribed for her and regularly rejected or opposed treatment suggestions and attempts. He said that as a result in the last 12 months, the attempts to treat X on a voluntary basis had not been successful and that was evidenced by the need for her to be hospitalised on three occasions and the on-going instability in her mental state. He referred to Dr Fitzgerald’s report which says:
We have tried to manage her disorder as a voluntary patient in the least restrictive way possible. However, it is my opinion that X’s illness is at best only partially treated and those efforts to adequately treat her condition have been opposed by her because of the nature of her illness.
Dr Etim indicated that the treatment team were of the view that X would continue to experience instability in her mental state and have episodes of deterioration requiring hospitalisation if her treatment were not managed under an order because she continued to lack insight into her condition and regarded herself as her “own doctor”.
X acknowledged that she had forgotten to take medication on occasions and that she had made a decision to reduce medication prescribed for her because of the cost. She also indicated that she had tried a wide range of medications and had rejected and refused many of them because of side effects. She said she would take prescribed medication if it did not make her unwell. In her statement, X wrote:
On my current medication I actually do, to some extent, trust psychiatrists, psychologists, etc – people who can really help me if they are really willing to listen. By the way, Olanzapine 2.5mg to 5mg nocte is an excellent sleeping P.R.N. normally. But not 7.5 mg or above. Not for me, anyway.
I promise to actually always comply to my” regime of treatment” as now is...
The Tribunal accepted that X’s indication that she would accept treatment “as now is” was genuine. However, it was clear that her acceptance was heavily conditioned on any treatment being prescribed on the basis of her own opinion. The Tribunal concluded that X would accept treatment limited to what she wanted and what she directed treating professionals to give her. The Tribunal was not satisfied that X currently has the capacity to assess her own treatment needs, to assess the consequences of the choices that she makes as to treatment and to understand how the consequences of her treatment decisions affect her. The information before the Tribunal demonstrated that her approach to her treatment on a voluntary basis had not been successful during 2010 and into 2011. Her mental state had been unstable and had deteriorated as a result. The Tribunal was satisfied that criterion 2 was made out.
SECTION 28 (c)
Section 28 (c) requires the Tribunal to be satisfied:
(c) 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;
The tribunal was advised that there had been some improvement in X’s mental state during the period of involuntary detention up to the time of the hearing. This, coupled with X’s ability to remain in the community, work and study and avoid hospitalisation while receiving treatment in the period prior to 2010 satisfied the Tribunal that this criterion was met.
SECTION 28(d)
The Tribunal must be satisfied that:
(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.
The Tribunal was satisfied that this criterion was met in light of the matters set out at paragraphs 22 to 26 above.
MAKING A PSYCHIATRIC TREATMENT ORDER
After considering the documents filed with the Tribunal and hearing from X, Ms Wearne and Dr Etim, the Tribunal was satisfied that each of the requirements of Section 28 of the MHA were met and that it was otherwise appropriate to exercise its discretion to make a PTO notwithstanding X’s objection to it.
As the tribunal has previously noted, PTOs involve breaches of the subject person’s human rights[1]. The orders authorise the provision of treatment contrary to the wishes of a subject person as well as involuntary detention. Several provisions of the MHA refer to the need to ensure that treatment is given in a manner that is least restrictive of rights and in a way that maintains the dignity and self respect of a person with mental illness. Section 9 of the MHA requires a person exercising a function under the MHA to endeavour to ensure that restrictions on a person’s freedom and any derogation of their dignity and self–respect are kept to the minimum necessary for the proper care and protection of the person. The criteria for making an order set out in Section 28 of the MHA cannot be met unless the Tribunal is satisfied that treatment cannot be provided in any less restrictive way. The Tribunal is very mindful that given the considerable limits on human rights authorised by an order, it must be satisfied that any order it makes is demonstrably justified.
[1] Kassik v FL [2010] ACAT 22
In this case, the Tribunal is satisfied that involuntary treatment is likely to lessen the continuation of the instability and deterioration that has inhibited X’s ability to live in the community and maintain employment (and the financial stability that comes with employment) during 2010. In the Tribunal’s view, this is of such importance to X that the restrictions that arise from a PTO are justifiable.
Section 36J of the MHA provides that, unless sooner revoked, a PTO has effect for 6 months or any shorter period stated in the order. The Tribunal considered whether this order should be in place for a shorter period than 6 months. It was satisfied that because X’s mental state has been unstable for some time, a 6 month order was necessary for treatment to be adequately provided to X.
Taking into account X’s voluntary treatment history, the Tribunal was also satisfied that it should review the order on its own initiative before it expires, noting the statutory obligation on the chief psychiatrist to tell the tribunal if, during the period that the order is in force, he is satisfied that X is no longer a person in respect of whom the tribunal could make a PTO.
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Ms Linda Crebbin
General President
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