Daniels v Thomas Embling Hospital
[2010] VSC 570
•30 November 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
PRACTICE COURT
No. 4774 of 2009
| GARTH DANIELS (by his litigation guardian Mr Bernard Daniels) | Plaintiff |
| v | |
| THOMAS EMBLING HOSPITAL & EASTERN HEALTH | Defendants |
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JUDGE: | OSBORN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 November 2010 | |
DATE OF JUDGMENT: | 30 November 2010 | |
CASE MAY BE CITED AS: | Daniels v Thomas Embling Hospital | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 570 | |
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PROCEDURE – Application for dismissal of proceedings – Terms of settlement – Litigant guardian refused leave to appeal without legal representation – No reason that terms should not be enforced – Underlying circumstances support dismissal of proceeding – No contrary purpose to proceeding – Continuance of proceeding not for Plaintiff’s benefit – Proceeding dismissed – No order as to costs - Supreme Court Rules (General Civil Procedure) 2005 r 15.02(3).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Daniels | Self represented |
| For the Defendant | Ms Foy | In house counsel: Thomas Embling Hospital and Eastern Health |
HIS HONOUR:
This is the return of an originating motion and a summons upon originating motion both dated and filed 16 February 2009. They seek relief directed to preventing, first, the premature transfer proposed at that time by Thomas Embling Hospital of the plaintiff before an appeal which was then proposed to the Mental Health Review Board (‘the Board’) and scheduled for 13 March 2009.
Secondly, they seek to prevent Eastern Health from having any further involvement in Garth Daniels' treatment or care whilst a claim for damages then before the County Court continued. The originating motion and summons indicate that a final directions hearing in the County Court proceeding was then scheduled for 23 February 2009.
In the event, the plaintiff was discharged from Thomas Embling Hospital on 9 April 2009 to the Frankston Community Mental Health Service as he had changed his principal place of residence to Frankston. The first subject matter of the originating motion has thus been overtaken by subsequent events. That this is so is conceded by an affidavit of Mr Opie of 28 May 2009 who, at that time, was acting as solicitor for the plaintiff.[1]
[1]I refer in particular to [11] of that affidavit.
This left outstanding the question of the County Court proceeding. The claim for damages has also now been concluded, following approval of a compromise of the proceeding by his Honour Judge Saccardo.
The basis of the proceedings having fallen away, the defendants now seek to have them dismissed. They do so relying upon terms of settlement which were entered into at one point during litigation in this Court which anticipated that the proceeding would be dismissed upon the conclusion of the County Court proceeding.
The affidavit of Sonia Melee Law sworn 26 November 2010 sets out the background to the matter in some detail from the point of view of the first defendant, and it is desirable that I further elaborate the matters she describes.
She says that the Victorian Institute of Forensic Mental Health, which is known as Forensicare is a body corporate established under Part 6A of the Mental Health Act 1986 (‘the Act’). It operates the Thomas Embling Hospital, a specialist hospital providing treatment to prisoners with mental illness and to patients who are unable to be treated in other community mental health services. It receives funding from the Department of Health. Unlike other community or area mental health services, similarly funded and administered under the Act, Forensicare takes patients from all parts of Victoria. When a patient of Thomas Embling Hospital is to be discharged into the community, Forensicare notifies the appropriate area mental health service of the possibility for service provision in the area in which the person is to live, in order that any treatment required may be provided by that service.
Ms Law refers to the affidavit of Dr Ong, a consultant psychiatrist employed by the Thomas Embling Hospital, sworn 16 February 2009 which sets out the history of the plaintiff's treatment at Thomas Embling. As she says, the affidavit sets out the circumstances of the plaintiff's admission to Thomas Embling Hospital on 8 October 2008 and the circumstances of his treatment during his stay up until 16 February 2009. It was then anticipated that further treatment for the plaintiff would be delivered by Eastern Health after discharge because his address, prior to admission, was in the Eastern Health area.
On 10 February 2009, the litigation guardian made application on his son's behalf in the present proceeding to enjoin Thomas Embling Hospital from transferring him to Eastern Health and to enjoin Eastern Health from treating him. The application was adjourned pending the outcome of personal injury proceedings instituted against Eastern Health by Mr Daniels and the outcome of an appeal to the Board.
On 13 February 2009, his Honour Justice Pagone made an ex parte order restraining Thomas Embling Hospital from transferring Mr Daniels until 17 February 2009. On 18 February 2009, a further order was made adjourning the restraining proceedings until 20 March 2009.
On 9 April 2009, on advice that the plaintiff's address had changed to Frankston, the plaintiff was discharged to the care of the Frankston Community Mental Health Service on a community treatment order. The community treatment order was made by the authorised psychiatrist at Thomas Embling Hospital under the Mental Health Act 1986.
On 29 May 2009, the Board heard an appeal by the plaintiff against his involuntary status under the community treatment order and the Board upheld the order.
At that time, although the plaintiff has been discharged from Thomas Embling Hospital, the litigation against Eastern Health remained on foot. On 29 May 2009, the litigation guardian in this proceeding, Forensicare and Eastern Health, entered into terms of settlement in relation to this proceeding pending the outcome of the personal injury litigation against Eastern Health.
It was agreed that if on the next hearing date the litigation has been heard and determined or otherwise finally resolved and the application had not been called on for further hearing, the parties would seek orders by consent and dismiss the proceeding with no order as to costs. Ms Law produces a copy of the terms of settlement.
They contemplated the adjournment of the summons on originating motion to the Practice Court on 8 February 2010. In the event, that summons was both adjourned to that date and has been further adjourned. The terms also state the following:
If upon the adjourned hearing of this proceeding:
(a) County Court proceeding No. CI 03‑05712 wherein Garth Jason Daniels, (a person under a disability who sues by his litigation guardian Bernard Daniels) is plaintiff and Eastern Health is defendant has been heard and determined or otherwise finally resolved; and
(b) this proceeding has not been called on for further hearing;
the parties to the present proceeding agree to seek orders, by consent:
1. Proceeding dismissed.
2. No order as to costs (including reserved costs).
The terms of settlement were signed by Mr Danny Masel of counsel for the plaintiff.
A similar affidavit setting out the background of the matter has been sworn on behalf of Eastern Health by Sue Ines Allen on 28 November 2010. She states that Eastern Health is a public hospital established under the Health Services Act 1988. It operates three major hospital campuses, the Box Hill, Maroondah and Angliss hospitals, together with a large in‑patient and out‑patient mental health service. The mental health services operated by the second defendant are approved mental health services within the meaning of the Health Services Act 1988. The second defendant is the main provider of the public hospital services including public mental health services in the eastern metropolitan area of Melbourne, and it serves a population of approximately one million people. The plaintiff was a patient of the second defendant's mental health services initially in 1996 and for other periods prior to his move to Frankston in 2009. Until that time, the plaintiff had resided with his family who live in the Eastern Health services area.
On or about 19 September 2003, the plaintiff, with the assistance of his litigation guardian, issued a generally endorsed writ in the County Court against Eastern Health. The claim related to treatment provided to the plaintiff by Eastern Health when he was admitted to its hospital from 24 April 1996 and intermittently up to 25 August 2001.
Ms Allen then sets out the history of the County Court litigation and recites the institution of the proceeding with which I am concerned in February 2009 and the subsequent settlement on the terms to which I have already referred.
She goes on to state that on 29 March 2010 a mediation was held in relation to the County Court litigation and a resolution was reached which was approved by His Honour Judge Saccardo by order dated 16 September 2010. She exhibits that order.
It records that Mr Opie appeared as solicitor for the plaintiff and that the litigation guardian also appeared in person.
The order recited under the heading ‘Other Matters’:
1. The plaintiff is a handicapped person who is incapable by reason of mental infirmity of managing his affairs in relation to this proceeding.
2. By a compromise entered into on 29 March 2010 the defendant proposes that the plaintiff's claim be dismissed and each party bear their own costs.
3. The court read the following material:
(a) The several affidavits of Alan Donald Opie sworn 12 April 2010 and 17 June 2010.
(b) The affidavit of Bernard Patrick Daniels sworn 25 June 2010.
(c) The exhibits to the affidavits of Alan Donald Opie including the joint Opinion of Mr. Jonathan Brett of Counsel and Mr. David Hancock of Counsel dated 29 March 2010 and the further Opinion of Mr. Brett of Counsel dated 15 June 2010.
4. In addition the Court heard submissions from Mr. Daniels as to his position that the proposed compromise was not in the plaintiff's best interests.
5. The defendant consents to the proposed compromise.
His Honour then ordered that:
(1) The compromise be approved.
(2) The proceeding be dismissed.
(3) There be no order as to costs.
(4) The exhibits to the affidavits of Alan Donald Opie be retained on the Court file.
The matter comes back to me following the orders made by his Honour Judge Saccardo and the effluxion of time within which those orders could be appealed. The dismissal of the present case is nevertheless opposed by the plaintiff's litigation for guardian, who is his father.
I should record at the outset of my reasons with respect to the determination of this matter, that I accept entirely that the litigation guardian is motivated by genuine concern for his son and that the history of his son's initial treatment by Eastern Health is a matter which has caused him genuine concern and in particular his son’s treatment during 2008 was something that his father does not accept was appropriate.
The history of that treatment from the litigation guardian's point of view is set out at [21]‑[27] of the litigation guardian's affidavit sworn 29 November 2010:
21.In January 2008 prior to the Plaintiff’s transfer to the Alfred the Plaintiff was kept in solitary confinement in what is the most wretched of health disgraces that contravened known sanitary practice. The Plaintiff was tripped of all dignity an (sic) forced by medical and nursing staff to defecate in a tray. Forced to urinate in a bottle. Forced to eat in the same room as having just relieved his bowels into a cardboard tray: a reprehensible and abhorrent throw back to 18th Century asylum treatment. (Refer No 6621 of 2008)
22.The Treatment Plan for the Plaintiff compiled by Eastern health Adult Mental Health service dated 3 June 2008 states that if Garth’s (the Plaintiff) seclusion lasts more than 3 days he will be transferred to a secure extended care unit.
23. Garth was kept in seclusion in both January 2008 and August 2008 for a period of four weeks. And, on that basis admitted to the Alfred with the intent of transferring him to the Austin Hospital, which was negated by the board in May 2008 and subsequently the Plaintiff was sent to Thomas Embling
24.Thomas Embling at the direction of eastern health sought to transfer the Plaintiff to the Austin. This was again negated following the “exparte” application for injunctive and declaratory relief before Justice Pagone.
25.Eastern Health to date has not been directly involved but there has been a transition of staff. Coincidentally Dr. Sean Jesperson former Director of Eastern Health’s Community Mental Health Programme who has prescribed for the Plaintiff while under his jurisdiction at Eastern Health is now Clinical Director at Peninsula Health under whom the Plaintiff is governed by a community Treatment Order.
26.Eastern health’s exclusion from being involved in the Plaintiff’s treatment has culminated in the longest period the Plaintiff has not been hospitalised.
27.Thomas Embling’s exclusion has further facilitated the Plaintiff’s wellbeing as the Plaintiff’s fear of being committed to that forensic facility (in which he was physically assaulted on his last admission by inmates, and the murders that took place that left the Plaintiff traumatised) is currently negated by the knowledge of the current ongoing proceedings.
Opie and Co. filed a notice of solicitor ceasing to act on 21 September 2010 in this proceeding in accordance with rule 20.03 of the Supreme Court Rules (General Civil Procedure) 2005 (‘Supreme Court Rules’).
The first issue which arises before me is whether the litigation guardian should be permitted to appear without legal representation. The litigation guardian has indicated that he will seek to appeal the order of Judge Saccardo, by which I take him to mean that he will seek to facilitate an appeal by his son against the order of Judge Saccardo, but despite this circumstance, in my view r 15.02(3) of the Supreme Court Rules should be complied with.
The requirement for legal representation is intended to ensure that the person under a disability is competently represented before the Court. That requirement is one which serves both the public interest and the interest of the person who is under a disability. It is not in the public interest that a litigation guardian should be able to maintain proceedings in the potentially difficult and sensitive circumstances which may attach to persons under a disability unless the litigation guardian is represented, nor that the Court’s time should be wasted with hopeless applications.
Next, the litigation guardian's affidavit material offers no basis for dispensation with respect to the rule other than implicitly the expression of his view of the underlying merits of his son's situation in relation to future psychiatric treatment. I shall say something more about that view but there is no material before the Court bearing specifically on the question of representation save, of course, the material which indicates that the plaintiff was legally represented in the County Court and the record of His Honour Judge Saccardo's order which makes plain that the litigation guardian opposed the settlement which it is apparent was approved in part on the basis of material placed before the court by the legal representative.
Next, no sensible grounds have been articulated for the proposed appeal in respect of the County Court order and it is apparent that a lack of legal representation bears on the articulation of the matters which litigation guardian seeks to raise.
Next, no legal advice has been obtained as to whether there are any prospects of success in terms of the appeal from the County Court and once again the absence of such advice articulating some basis for the proposed appeal bears directly on the basis on which litigation guardian desires to put his case to the Court.
It follows that I am not prepared dispense with the requirements of rule 15.02(3).
Nevertheless I have heard the litigation guardian at some length yesterday and again this morning in order to ensure that I understand the basis on which he says the proceeding should not be dismissed in accordance with the terms of settlement.
I have come to the view that there is no reason that the terms of settlement should not be enforced and I have also come to the view that the underlying circumstances of this proceeding supports its dismissal in any event. I accept the evidence of Professor Katz as to the plaintiff's history of treatment, the potential serious down side which would flow from an absolute prohibition upon treatment by Eastern Health of the plaintiff and the low probability that he will in fact be treated in the future by Eastern Health.
Background of Mr Daniels
10.Mr Garth Daniels is a young man in his 30’s, who is well known to mental health services in Victoria with a 10-year history of a severe schizophrenic illness, with marked negative symptoms. He has had multiple trials of various antipsychotic agents over the years. Unfortunately the pattern of his illness has been such that there are recurring episodes of treatment non-compliance.
11.Over the years he has had multiple admissions to inpatient mental health units including both Box Hill Hospital and Maroondah Hospital. He has been treated with ECT but had until his recent admission to the Thomas Embling Hospital never had a trial of clozapine due to his father’s opposition.
12.Garth has a well documented history of severe violence and assaultative behaviour against his father, members of the public and nursing staff as well as destruction of property at times of relapse. He is to be approached with extreme caution when unwell. He has allegedly also had some type of martial arts training.
13.As noted above, Garth Daniels has had numerous admissions to inpatient units at Eastern Health, Southern Health, Alfred Health and most recently to the Thomas Embling Hospital.
Last episode of care provided by Eastern Health to Mr Daniels
14.Mr Daniel’s most recent admission to an inpatient unit at Eastern Hospital ended on 28 August 2008, at which time he was transferred as an inpatient to the Psychiatric Intensive Care Unit at the Alfred. He was subsequently transferred to the Thomas Embling Hospital. In April 2009, he was discharged by the Thomas Embling Hospital and is now treated on a community basis under a Community Treatment Order made under the Act by the approved mental health service at Peninsula Health.
15.In February and March of 2009, I was involved in discussions with staff of the Thomas Embling Hospital, Austin Health and the Office of the Chief Psychiatrist regarding the appropriate arrangements to be put in place to provide care to Mr Daniels on his discharge from the Thomas Embling Hospital.
16.I am aware that these proceedings arise out of a decision at the time to transfer Mr Daniels to Eastern Health as that was the area at the time in which Mr Daniels was resident. Mr Bernard Daniels objected to that proposal.
17.In the event, as Mr Daniels changed his place of residence, he was ultimately transferred to Peninsula Health.
18.My last conversation with staff at Peninsula Health would have been towards the end of March 2009 although I am aware that Dr Sean Jespersen, a Principal Consultant spoke with the acting Director of Clinical Services at Peninsula Health about Mr Daniels some time after I did but before 9 April 2009 when he eventually was transferred to Peninsula.
19.To the best of my knowledge no further conversations have taken place regarding Mr Daniels.
Conflict of Interest
20.Mr Daniels alleges that Eastern Health is subject to a conflict of interest arising from a claim of personal injury he has brought against Eastern Health regarding allegations concerning events in 1996.
21.These allegations remain untested. The events alleged took place 13 years ago and are unlikely to be recalled by any current staff member. Furthermore, I do not believe that current ward or community based clinical staff, other than one psychiatrist, would have any knowledge of those proceedings and could not therefore be influenced in any way.
22.More importantly, Eastern Health as a publicly operated and funded health service and its staff are required by law to provide services without prejudice to any member of the public who requires them.
Impact of an Order preventing Eastern Health treating Mr Daniels
23.Currently Mr Daniels resides in Frankston. However, if Mr Daniels were to be in Scoresby where his father resides and was to require emergency care, as has happened on a number of occasions due to the severity of his illness, he would ordinarily be brought by ambulance or by the Victoria Police to the Maroondah Hospital.
24.In the event of a person requiring emergency medical care in those circumstances, ambulance staff are required to bring the patient to the nearest emergency department. In the event of a person requiring emergency mental health care, the Victoria Police, have power, under section 10 of the Mental Health Act 1986, to transport a person whom they believe may have a mental illness to an approved mental health service.
25.In my opinion, the making of an Order preventing the police or the ambulance service or the public health service from bringing a patient to the nearest emergency or psychiatric service would result in unreasonable constraints on their operations and place a further burden on already limited public resources.
26.Moreover, all approved mental health services in Victoria are subject to funding guidelines regarding the allocation of resources by the Department of Human Services.
27. These guidelines provide that:
a.Each region’s share of the mental health budget is determined by its weighted population.
b.Regional Directors and Psychiatric Services Managers determine and “purchase” the most appropriate mix and structure of services in each area.
c.Adult Mental Health Services are responsible for the resources for services provided to residents of their areas, even when those services are provided by another area or region.
28.The Guidelines also govern the circumstances where an out of area client is brought to or treated by another mental health service.
29.As the authorised psychiatrist at Eastern health, I am required by the Guidelines to act in the following manner:
“The Authorised Psychiatrist in the out-of-area AMHS currently providing treatment has the primary responsibility for the treatment and care of the client, including assessing the appropriateness of transfer back to the AMHS in the client’s area-of-origin. They must make decisions on any appropriate arrangements for transfer in consultation with the relevant clinical staff in the client’s area-of-origin, and where appropriate with the client’s carers”.
30.In other words, in the unlikely event that Mr Daniels were to require health services from Eastern Health, I would make every effort to ensure that those services were provided by Peninsula Health and that he was transferred to Peninsula Health as soon as reasonably practicable.[2]
[2]Affidavit of Associate Professor Paul Katz sworn 28 May 2009, [10]-[30].
This affidavit was supplemented by a further affidavit but it is the paragraphs I have referred to which contain the critical evidence.
In summary I conclude first, that the plaintiff is bound by the terms of settlement and that the defendants are entitled to enforce them.
Secondly, that the second limb of relief sought by the originating motion is prejudicial to the plaintiff's welfare in it has the capacity to constrain this appropriate treatment in circumstances of emergency where facilities operated by Eastern Health may be the most convenient for the provision of critical care.
Thirdly, the relief sought in the proceeding purports to restrain the potential place of treatment of the plaintiff which may affect the efficient and proper provision of paramedic or other services to other persons in situations of stress upon public resources.
Fourthly, I accept that there is in fact a low probability of treatment in the immediate future by Eastern Health of the plaintiff and it seems to me that if circumstances arose where the ongoing treatment of the plaintiff was, in the litigation guardian's view, again unsatisfactory, then it would be open to him to institute fresh proceedings on the basis of new circumstances.
Fifthly, proceedings by originating motion are intended to provide for the resolution of relatively discrete issues. The issues which prompted the institution of the present proceeding have been resolved. The current proceeding does not lend itself to some ongoing form of supervision by the court of the relationship between the parties.
Sixthly, the litigation guardian asserts that the exclusion of Eastern Health from involvement in the plaintiff's treatment has culminated in the longest period the plaintiff has not been hospitalised but there is no apparent threat to alter his current regime of treatment and, as I have said, the grant of ongoing injunctions in the terms sought by the litigation guardian may have negative consequences of the type I have elaborated.
It follows from the above conclusions, first, that I am not satisfied there remains a serious triable issue to be resolved in this proceeding, nor am I satisfied that the balance of convenience would favour the grant of any continuing injunctive relief.
Accordingly, the underlying circumstances of the matter support the same outcome as the terms of settlement which is that the proceeding should be dismissed.
I record for completeness that once the Court concludes that the continuation of the proceeding is not for the benefit of a plaintiff with a disability, it should be dismissed in the inherent jurisdiction of the Court:
The only reason that the next friend of an infant [a litigation guardian] is entitled to bind the infant in matters connected with the cause is that he is the officer of the court to take all measures for the benefit of the infant in the litigation in which he appears as next friend. One of the purposes of appointing a next friend is to have a person on the record who is personally liable for costs. But that is not the only purpose for which a next friend is appointed. He is appointed principally to institute and carry on the proceedings on behalf of the infant because the law considers that an infant is incapable of asserting or protecting his rights or forming a judgment as to the necessity of applying for protection or redress to the tribunals of the country. Accordingly, where more than one person is willing to act as a next friend, the court will appoint as most suitable the father or if he is dead the widow or some near relative in preference to a stranger unless the interest of the father or other relative is adverse to that of the infant. The next friend will be removed by the court if he has an interest, or is closely connected with some person who has an interest, which is adverse to that of the infant, or if for any reason the court considers that the infant's interests will not be properly protected by him. If there be any suspicion that the proceeding is an improper one or that the next friend is unfit to have the conduct of it, an inquiry may be directed on such matters, and if it appears on inquiry, or in clear cases without inquiry, that the proceeding is not for the infant's benefit it will be stayed, or, if the circumstances warrant it, dismissed with costs to be paid by the next friend.[3]
[3]Rhodes v Swithenbank (1889) 22 QBD 577, 579 (Bowen LJ) as quoted in Dey v Victorian Railways Commissioners (1949) 78 CLR 62, 113-114 (Williams J). Emphasis added and citations omitted.
The litigation guardian's underlying fear in this proceeding is that it is possible his son might again be subjected to a management plan at Eastern Health which is inappropriate and causal of distress and potential psychosis. As I have said already but I reiterate for his benefit, if that hypothetical situation were to occur, the proper course would be institution of further proceedings. The litigation guardian's fear, however genuinely it may be held by him, is not a proper basis for the continuation of this proceeding and I propose to order that the originating motion and summons on originating motion be dismissed and subject to anything that may be said, there be no order as to costs.
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