Daniels v Eastern Health
[2016] VSC 148
•22 March 2016 (Ex tempore) (Revised 11 April 2016)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2016 883
| GARTH JASON DANIELS | Plaintiff |
| v | |
| EASTERN HEALTH | Defendant |
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JUDGE: | McDONALD J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 March 2016 |
DATE OF JUDGMENT: | 22 March 2016 (Ex tempore) (Revised 11 April 2016) |
CASE MAY BE CITED AS: | Daniels v Eastern Health |
MEDIUM NEUTRAL CITATION: | [2016] VSC 148 |
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HABEAS CORPUS – Powers of the Mental Health Tribunal – Unsuccessful application for revocation of an inpatient treatment order – Tribunal made new inpatient treatment order with an expiry date beyond the date of the extant order – Plaintiff contended that Tribunal acted ultra vires and that involuntary detention pursuant to new order was unlawful – Application dismissed – Mental Health Act 2014 ss 5, 36, 55, 57, 60 and 182; Mental Health Tribunal Rules 2014 rr 12 and 13; Charter of Human Rights and Responsibilities 2006 s 32.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A W Sanbach | Katherine Moorhouse-Perks |
| For the Defendant | Mr P Halley | Minter Ellison |
| For the Attorney-General of Victoria | Ms J Davidson | Victorian Government Solicitor’s Office |
EX TEMPORE (REVISED)
HIS HONOUR:
Mr Garth Daniels has made an application for a writ of habeas corpus. If granted, Mr Daniels is entitled to be released from involuntary detention by the defendant, Eastern Health. His detention is pursuant to an inpatient treatment order (‘ITO’) made by the Mental Health Tribunal (‘the Tribunal’) on 19 October 2015. The order expires on 17 April 2016.
Mr Daniels contends that his involuntary detention is unlawful. He contends that the Tribunal had no power under the provisions of the Mental Health Act 2014 (‘the Act’) to make an ITO extending beyond 6 March 2016, being the date of expiry of an order which had been made on 7 September 2015. This ITO was the subject of an unsuccessful application by Mr Daniels to revoke that ITO pursuant to s 60 of the Act.
Mr Sandbach, who appeared on behalf of Mr Daniels, accepted that where the Tribunal hears an application for revocation under s 60 of the Act and is satisfied that the treatment criteria prescribed by s 5 of the Act apply to the person who is the subject of an extant ITO, the Tribunal does have power pursuant to s 55(1) of the Act to make a new ITO.
However, he submitted that the Tribunal has no power to make an ITO the duration of which extends beyond the ITO which was the subject of the application for revocation. Thus, in circumstances where Mr Daniels was subject to an ITO made on 7 September 2015 which expired on 6 March 2016, the Tribunal had no power when hearing the application for revocation to make a new ITO extending beyond 6 March 2016.
Mr Sandbach submitted that s 55 of the Act is ambiguous because it mandates that, where an application for revocation is unsuccessful, there will be two ITOs running concurrently. First, the ITO which is the subject of the unsuccessful application for revocation and second, the new ITO made in the exercise of the power conferred by s 55(1)(b) of the Act.
Mr Sandbach also submitted, relying upon the Court of Appeal judgment in Slaveski v Smith,[1] that s 32 of the Charter of Human Rights and Responsibilities Act 2006 requires s 55 of the Act to be construed in a way that is compatible with human rights. He submitted that a construction of s 55 which permits the Tribunal to make a new ITO that extends the period of involuntary detention beyond that provided for by an extant ITO is not consistent with the upholding of human rights.
[1](2012) 34 VR 206 (‘Slaveski’).
In Slaveski, the Court of Appeal observed that s 32 of the Charter does not authorise a process of interpretation which departs from established understandings of the process of construction.[2] It does not allow the reading in of words which are not explicit or implicit in a provision, or the reading down of words so as to change the true meaning of the provision.[3]
[2]Ibid [45].
[3]Ibid.
Consequently, the question of construction of the Act and the limitation on the Tribunal’s powers under s 55 of the Act, for which the plaintiff contends, are to be determined in accordance with established principles of statutory construction.
The Tribunal’s power to make a new ITO with an expiry date exceeding an extant order
The construction contended for by the plaintiff involves reading into s 55 of the Act a new sub-section in the following terms: ‘if the Tribunal makes a person subject to an ITO after conducting a hearing under s 60, the maximum period that may be specified in the order must not exceed the maximum period of an extant ITO.’
In XX v WW and the Middle South Area Mental Health Service,[4] the court reviewed the authorities which govern the principles in respect of reading words into statute. Relevantly, reference was made to the judgment of McHugh JA in Bermingham v Corrective Services Commission of New South Wales (‘Bermingham’),[5] and also to the judgment of the Victorian Court of Appeal in Director of Public Prosecutions v Leys (‘Leys’).[6]
[4][2014] VSC 564.
[5](1988) 15 NSWLR 292.
[6](2012) 44 VR 1.
In Bermingham, McHugh JA cited with approval the judgment of Lord Diplock in Wentworth Securities v Jones.[7] He referred to three conditions identified by Lord Diplock which must be satisfied in order to read words in to the statute:
First, the court must know the mischief with which the Act was dealing. Secondly, the court must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved. Thirdly, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect.[8]
A fourth requirement was added by the Victorian Court of Appeal in Leys, that is, that the modified construction must be reasonably open and not be unnatural, incongruous or unreasonable and must be consistent with the statutory scheme.[9]
[7][1980] AC 74.
[8](1988) 15 NSWLR 292, 302.
[9](2012) 44 VR 1, [97], [109]–[110].
I have concluded there is no basis for a finding that the Victorian Parliament has by inadvertence overlooked the possibility that, in circumstances where the Tribunal dismisses an application to revoke an extant ITO, it would make a new ITO, which operates beyond the expiry date of the extant ITO.
First, the power conferred upon the Tribunal to make a new ITO of up to six months’ duration is unambiguous. The power to make such an order is expressly prescribed by s 55(1)(a) of the Act. The duration of the ITO of up to six months is expressly provided for in s 57(2)(a)(ii) of the Act.
Second, the context in which s 55 of the Act is to be construed includes its legislative history. The repealed Mental Health Act 1986 contained a regime for challenges to ITOs to be heard by the Mental Health Review Board (‘the Board’). Under s 36 of the repealed Act, the Board had the power to revoke (by discharging) or confirm a pre-existing ITO. Significantly, the Board did not have the power to make a new ITO, whether it be of the same, shorter or longer duration. The fact that s 55 of the Act confers upon the Tribunal the power to make a new ITO of up to six months’ duration is consistent with the legislative intent to expand the powers of the Tribunal beyond those previously enjoyed by the Board in circumstances where an application to revoke an extant ITO under s 60 of the Act (‘s 60 application’) is unsuccessful.[10]
[10] See, for example, Esso Australia Pty Ltd v Australian Workers' Union [2015] FCA 758, [136].
It is to be noted that the powers exercised under s 55 of the Act when hearing an application under s 60 of the Act, are not by way of appeal but rather by way of de novo hearing. The Tribunal’s assessment of whether the treatment criteria are met is determined as at the date of the hearing. This weighs against reading down the Tribunal’s powers to make a new ITO of up to six months’ duration. Any such order is not fixed. An authorised psychiatrist has power to revoke the ITO under s 61 of the Act if they determine that the treatment criteria no longer apply.
Further, pursuant to s 182(b) of the Act, the treating psychiatrist is a party to any proceeding brought under s 60 of the Act, and rr 12 and 13 of the Mental Health Tribunal Rules 2014 require an authorised psychiatrist to provide a clinical report for the Tribunal’s consideration in respect of any s 60 application.
The legislative framework within which a s 60 application is heard, together with the power of an authorised psychiatrist to revoke any ITO made by the Tribunal, weigh heavily against a finding that by inadvertence the legislature has failed to address the eventuality of the Tribunal making an ITO which operates beyond the date of a pre-existing ITO.
The third of Lord Diplock’s criteria for reading words into statute is the requirement that the court be able to state with certainty what words Parliament would have used to overcome the relevant omission if its attention had been drawn to the defect.
The defect which the plaintiff complains of is the capacity of the Tribunal to make an ITO with a longer period of operation than the pre-existing ITO. Assuming in the plaintiff’s favour that the second criteria identified by Lord Diplock is satisfied, would Parliament have limited the Tribunal’s power to making a new ITO which could not extend beyond the previous ITO or expires sooner than the previous ITO? The Court cannot with certainty conclude what words Parliament would have used to address the defect complained of by the plaintiff.
As to the fourth criteria identified in Leys, the contention advanced by the plaintiff for limitations on the powers of the Tribunal is not consistent with the statutory scheme. That scheme provides that the hearing of a s 60 application is a de novo hearing. The Tribunal must determine whether the treatment criteria are met as at the time of the hearing. There is no warrant in those circumstances to read down the Tribunal’s power to make an ITO of up to six months’ duration if it considers that this is appropriate. This is particularly so, as any such ITO is subject to potential revocation by an authorised psychiatrist under s 61 of the Act.
I set out earlier the form of words which the plaintiff effectively contends should be read into s 55 of the Act. The scale of those words invokes the High Court’s reasoning in Taylor v Owners – Strata Plan 11564:[11]
[11](2014) 253 CLR 531.
The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which, if uncorrected, would defeat the object of the provision. It is answered against a construction that fills “gaps disclosed in legislation” or makes an insertion which is “too big, or too much at variance with the language in fact used by the legislature”.[12]
Those final words are apt to describe the words sought to be inserted in s 55 of the Act by the plaintiff.
Is an extant ITO rendered nugatory when the Tribunal makes a new ITO?
[12]Ibid [38] (citations omitted).
Considerable time was devoted during the course of the hearing to the parties’ submissions as to the question of what impact the ITO made by the Tribunal on 19 October 2015 has upon the pre-existing ITO made on 7 September 2015.
The plaintiff contended that the two ITOs continued to operate and that this was a source of ambiguity inherent in s 55 of the Act. The defendant and the Attorney-General of Victoria submitted that the making of the second ITO brought the first ITO to an end.
Ultimately, the question of whether the first ITO was or was not rendered nugatory by the second ITO is not a matter which I need to determine. The outcome of the present application turns upon the question of whether the Tribunal had the power on 19 October 2015 to make an ITO with an expiry date of 17 April 2016 in circumstances where there was a pre-existing ITO with an expiry date of 7 March 2016.
Irrespective of whether or not the pre-existing ITO was rendered nugatory, s 55 of the Act conferred power upon the Tribunal to make a new ITO with a duration of up to six months, that is, expiring on 17 April 2016. Had it been necessary to determine the point, I would favour the conclusion that the making of a new ITO effected an implied repeal of the pre-existing ITO.
In this regard, I note Mr Sandbach’s concession, properly made, that where the Tribunal makes a community treatment order, this would effect a repeal of a pre-existing ITO. Likewise, where the Tribunal makes an ITO with a shorter period of duration than a pre-existing ITO which is the subject of a s 60 application, it will effect an implied repeal.
The key consideration weighing in favour of implied repeal is the fact that the Tribunal, upon hearing an application under s 60 of the Act, must make a fresh assessment of whether the treatment criteria in s 5 of the Act are satisfied. The composition of the Tribunal, the evidence before it and the condition of the person subject to the pre-existing order may be significantly different than that which prevailed when the pre-existing order was made. Ultimately, however, it is not necessary to express a concluded view about this matter.
Conclusion
The defendant has discharged the onus of establishing that the plaintiff’s involuntary detention pursuant to the Tribunal’s ITO of 19 October 2015 is lawful. The application for a writ of habeas corpus must therefore be dismissed.
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