Daniels v Bayside Health
[2008] VSC 472
•21 October 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 6621 of 2008
| GARTH DANIELS (by his litigation guardian Bernard Daniels) | Plaintiff |
| v | |
| BAYSIDE HEALTH | Defendant |
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JUDGE: | BYRNE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20, 21 October 2008 | |
DATE OF JUDGMENT: | 21 October 2008 | |
CASE MAY BE CITED AS: | Daniels v Bayside Health | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 472 | |
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PRACTICE AND PROCEDURE – interim injunction – oral application
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APPEARANCES: | ||
| Mr Bernard Daniels appeared unrepresented | ||
| ThomasEmblingHospital | Mr Tom Dalton, Corporate Counsel, Victorian Institute of Forensic Mental Health | |
HIS HONOUR:
The application before the court is brought by Bernard Daniels, the father of Garth Daniels, who is an involuntary patient within the meaning of that expression in the Mental Health Act1986 (“the Act”).
The application is brought informally inasmuch as Mr Daniels senior has no solicitor acting for him and no proceeding has been issued. Nevertheless, given the seriousness of Mr Daniels' concerns about this son's welfare and the urgency that he said attended this concern, I have heard the matter as an interim injunction seeking the modification of the current treatment which has been given to the patient by the hospital in which he is detained, namely the Thomas Embling Hospital. The hospital, although not a party to the proceeding, attended by its counsel to assist the Court.
The issue, as I made it clear in the course of the hearing, is not whether the treatment is inappropriate; that is a matter which, if necessary, can be determined at another time. The question that I see as exciting the interest of the court is whether the patient is unlawfully being given treatment such that there is an immediate risk to his health, or even to his life, so that the court should intervene pursuant to some general power to have regard to the interest and welfare of members of the community who are, by reason of infirmity, unable to look after their own interests.
From Mr Daniels’ point of view, the matter is rather complicated by the fact that the parties are operating under a regime established by the Act.
The patient is, as I have mentioned, an involuntary patient and as such there is an obligation under section 12AD of the Act for him to be given treatment and, further, that such treatment may be administered, despite his lack of consent, in the appropriate circumstances set out in section 12AD(2). That does not determine the matter because as has been drawn to my attention, section 19A obliges the authorised psychiatrist to prepare and review on a regular basis and revise, if required, a treatment plan for each patient. Such a treatment plan must contain a good deal of information including an outline of the treatment the patient is to receive.
The section 19A(2) obliges the authorised psychiatrist in preparing, reviewing and revising the treatment plan, to take into account the wishes of the patient, so far as they can be ascertained, and unless the patient objects, the wishes of any guardian, family member or primary carer who is involved in providing ongoing care and support of the patient.
Doubtless because of the urgency of the matter and because it came before the court rather suddenly, I do not have a copy of the current treatment plan for the patient.
It was said that this current treatment plan differs from that which had gone before and that the change had been achieved without compliance with section 19A.
I am told that an application or an appeal or some matter is to be brought before the Mental Health Review Board (“Board”) by Mr Daniels and that this is to occur next Friday.
Under section 35A, doubtless the Board will review the patient's treatment plan as is contemplated by that section and, if appropriate, exercise such powers that it has to consider the matter.
It appears, however, from the material which I have already been shown, that this is a matter which has long been a matter of concern to Mr Daniels and he has sought to raise it if not in precisely the same terms before the board at its meeting in June this year, and perhaps on other occasions. It is likely too, from what I see in the material before me, that Mr Daniels senior has raised his concerns with the medical practitioners who have the care of his son.
In the course of his argument, Mr Daniels has raised a large number of matters, many of which are not really matters which I need or can determine at this stage. He raised questions of procedural fairness, the entitlement of his son not to suffer torture under the Charter of Human Rights and Responsibilities 2006, the entitlement of his son not to suffer death or to be at risk of death under the Charter. These are all matters which may, in the appropriate case - I do not say they must – but they may have to be investigated in due course. I do not see them as matters presently before me. I make no decision or finding one way or the other on them. My concern is simply whether there is an immediate risk to the health and welfare of the patient as a consequence of unlawful treatment such as would warrant me interfering with the treatment to which he is presently subjected. I focus on that issue and that issue alone.
I have heard evidence from Dr Yolande Lucire. Dr Lucire, in Sydney has seen the patient, she told me, about five times in person and she has spoken to him by telephone on a number of occasions over the past few months. She has provided a report dated 2005 in which she expresses the opinion that the patient is not suffering from schizophrenia but rather from akathisia and supersensitivity psychosis. A second report provided by her, dated 3 April 2006, repeats this diagnosis: she expresses the opinion there that he suffers from iatrogenic psychiatric emergency, akathisia, psychoactive substance induced disorder, involuntary intoxication, chronic delirium, and that this has been his condition for some ten years.
She expresses herself in her report as very critical of the treatment that the patient was then receiving.
When she gave evidence, not on oath, by telephone from Sydney, she expressed the same concerns and expressed the opinion that the treatment that the patient is currently receiving, and in particular his treatment with large doses of Valium and a medication known as zuclopenthixol, is likely to cause harm to him.
It is significant, for my present purposes, that she did not say that there was an immediate risk to his life. She said that the application of this medication, in her opinion, was potentially harmful and certainly harmful to his tissues and muscular condition, but not to his heart as was suggested to her. Nor, it would seem, is it otherwise a life threatening medication.
Now, it appears from the report of the Board, which set out, back in June, the views of the then treating doctors, that they were well aware that the medication that they were prescribing carried its risks. They formed the view, contrary to that of Dr Lucire, that the risks were not such as would cause the patient harm. They expressed the view, contrary to that of Dr Lucire, that the reported measure of CK in the patient is not such as would cause a risk that he would suffer from the condition which has been mentioned by Mr Daniels as a basis for his concern, namely, neuroleptic malignant syndrome which they accept is a very dangerous condition.
In the circumstances and given the limited area of my concern in this type of application, I find myself not satisfied that the current medication is so dangerous as to warrant the intervention of the court, assuming that the court has the power to intervene in such a case.
Accordingly, the application for interim injunctive relief must fail.
I mention, because Mr Daniels is here in person and may not apprehend the significance of this, that I make no finding one way or the other as to the sufficiency or appropriateness of the treatment that the patient is receiving. I am concerned only with the question whether the treatment which he is now receiving is not such as warrants the intervention of the court.
If these matters are to be investigated further, then this must be done on a properly instituted proceeding and brought before the court. Subject to anything that a judge might say to the contrary, Mr Daniels as litigation guardian will require the assistance of a lawyer and in that event the matter may be investigated and determined finally once and for all. But my present purposes, the application is refused.
I will direct that the papers before me in this matter be added to file number 6621 of 2008 and if it be necessary to do so I will direct that the defendant in this proceeding, that is the Thomas Embling Hospital, have access to that file as if it was a party to the proceeding.
The order I will make is therefore simply that the application for interim injunction restraining the defendant hospital from altering the medication to the patient, Garth Daniels, is refused.
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