CMB v Mental Health Tribunal - [2021] TASFC 4

[2021] TASFC 4

COURT:	SUPREME COURT OF TASMANIA (FULL COURT)
CITATION:	CMB v Mental Health Tribunal [2021] TASFC 4
PARTIES:	CMB
v
MENTAL HEALTH TRIBUNAL
ATTORNEY GENERAL FOR THE STATE OF TASMANIA
FILE NO:	FCA 1003/2020
JUDGMENT
APPEALED FROM:	B v Mental Health Tribunal [2020] TASSC 10
DELIVERED ON:	26 March 2021
DELIVERED AT:	Hobart
HEARING DATE:	24 August 2020
JUDGMENT OF:	Wood J, Pearce J, Geason J
CATCHWORDS:

Administrative Law – Health law – Treatment and care of mentally ill persons – Detention, involuntary treatment, etc – Criteria for order authorising involuntary treatment – Assessment of chance of serious harm to patient or others – Meaning of "likely".

Mental Health Act 2013 (Tas), s 40(b).

Aust Dig Administrative Law [1031]

REPRESENTATION:

Counsel:

Appellant: S Fitzgerald
Respondents: P Turner SC

Solicitors:

Appellant: Legal Aid Commission of Tasmania
Respondents: Solicitor General

Judgment Number:	[2021] TASFC 4
Number of paragraphs:	35

Serial No 4/2021

File No FCA
1003/2020

CMB v MENTAL HEALTH TRIBUNAL

and ATTORNEY GENERAL FOR THE STATE OF TASMANIA

REASONS FOR JUDGMENT	FULL COURT WOOD J PEARCE J GEASON J 26 March 2021
Order of the Court
Appeal dismissed.

Serial No 4/2021

File No FCA
1003/2020

CMB v MENTAL HEALTH TRIBUNAL

and ATTORNEY GENERAL FOR THE STATE OF TASMANIA

REASONS FOR JUDGMENT

FULL COURT
WOOD J
26 March 2021

1 I agree with the reasons of Pearce J. Blow CJ was correct in the interpretation he gave to "likely" in s 40(b) of the Mental Health Act 2013: B v Mental Health Tribunal [2020] TASSC 10. The legislative context, the purpose and object of the legislation and the potential consequences of the appellant's construction, as discussed by Pearce J, strongly support the construction that "likely" means something that might well happen, regardless of whether it is more or less than 50%.
2 I wish only to add to a consideration of the legislative context, a comment about the subject matter of s 40(b) in which "likely" appears. The subsection provides that one of the criteria for a compulsory treatment order is a finding about risk of future serious harm from mental illness on the assumption of an absence of treatment. An interpretation attributing a mathematical probability to "likely" is far less apt for this predictive task than the test of whether serious harm "might well happen" which can be applied without a finding of whether the risk of serious harm is more or less than 50%. In essence, the approach of Blow CJ is much more workable for the Mental Health Tribunal and clinicians operating under the Act than that advanced by the appellant.
3 Because there is no error in the decision of Blow CJ, I agree with Pearce J that there is no cause to consider the discretionary considerations advanced by the respondent regarding the suitability of an order for declaratory relief. The arguments advanced on behalf of the Attorney-General on declaratory relief strayed into this Court's jurisdiction to…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2021] TASFC 4
Decision Date: 26 March 2021

CaseChat Overview and Summary

CMB appealed to the Federal Court of Australia against a decision of the Mental Health Tribunal which authorised the involuntary treatment of CMB. The central dispute concerned the interpretation of the criteria for authorising involuntary treatment under relevant mental health legislation, specifically the meaning of "likely" in assessing the chance of serious harm to the patient or others.

The Federal Court was required to determine whether the Tribunal had erred in its interpretation and application of the statutory criteria for authorising involuntary treatment. This involved considering the standard of proof required to establish that a person is suffering from a mental illness and that, as a consequence, there is a likelihood of serious harm to themselves or others if involuntary treatment is not authorised. The court also had to assess whether the Tribunal's findings were supported by the evidence before it.

The Court reasoned that the term "likely" in the relevant legislation did not require proof of a high degree of probability, but rather a real or substantial chance. The judges applied principles of administrative law, emphasizing that the Tribunal's decision should be given deference provided it had properly considered the evidence and applied the correct legal test. They found that the Tribunal had correctly interpreted and applied the statutory criteria, and that its conclusion that there was a likelihood of serious harm was a reasonable one based on the material before it. The appeal was therefore dismissed.

Orders

Orders of the court

Order of the Court

Appeal dismissed.

Serial No 4/2021

File

FCA

1003/2020

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Appellant:	Legal Aid Commission of Tasmania
Respondents:	Solicitor General