Dudgeon v The Mental Health Review Tribunal - [2001] NTSC 19

Dudgeon v The Mental Health Review Tribunal [2001] NTSC 19
PARTIES:PETER DUDGEON

v
THE MENTAL HEALTH REVIEW TRIBUNAL

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL FROM MENTAL HEALTH REVIEW TRIBUNAL
FILE NO:LA4 of 2001 (20102645)
DELIVERED:  23 February 2001
HEARING DATES:  23 February 2001
JUDGMENT OF:  THOMAS J
CATCHWORDS:

APPEAL – APPEAL FROM TRIBUNAL
Appeal from decision of the Northern Territory Mental Health Review Tribunal – mental illness – involuntary patient – community management order – whether suitable
Mental Health and Related Services Act 1998 (NT), s 6, s 8, s 9, s 10, s 14(a) and (b)(iii), s 49, s 123(5)(a) and (c), s 142(3) and s 143(a) and (d)
APPEAL – PROCEDURE
Procedure – conduct of appeals from the Mental Health Review Tribunal – suggested guidelines for practitioners
Mental Health and Related Services Act 1998 (NT ), s 127(2)(c)
Crown Proceedings Act 1993 (NT), s 13(4)
Supreme Court Rules 1987 (NT), r 34.01 and r 83.02
REPRESENTATION:
Counsel:
Appellant:J Hughes
Respondent:  D Lisson
Solicitors:
Appellant:North Australian Aboriginal Legal Aid Service
Respondent:  Solicitor for the Northern Territory
Judgment category classification:        C
Judgment ID Number:  tho200108
Number of pages:  13

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Dudgeon v The Mental Health Review Tribunal [2001] NTSC 19
No. LA4 of 2001 (20102645)

BETWEEN:
PETER DUDGEON

Appellant
AND:
THE MENTAL HEALTH REVIEW TRIBUNAL

Respondent

CORAM: THOMAS J
REASONS FOR JUDGMENT
(Delivered 23 February 2001)

This is an appeal by the appellant from a decision of the Northern Territory Mental Health Review Tribunal made on 21 February 2001.

On that date the Mental Health Review Tribunal made the following order:
The Tribunal determined under s 123(5)(a) that “the person fulfils the criteria for admission on the grounds of mental illness and orders that the person be detained as an involuntary patient for a period of up to seven days and authorised certain treatment for mental illness”.
The Tribunal then fixed the next date for review by the Tribunal as at 28 February 2001.
The grounds of appeal are that:
The Tribunal erred in ordering the appellant’s involuntary detention, as this was not the least restrictive means of ensuring treatment of the appellant, for it was open to the Tribunal to make a community management order in respect of the appellant.
The appellant sought the following orders:
“1.Pursuant to Mental Health and Related Services Act subsection 143(d), suspension of the Tribunal’s decision the subject of this appeal pending determination of this appeal.
2.Pursuant to subsection 143(a), an order setting aside the order to detain the Appellant involuntarily which the Mental Health Review Tribunal made on 21 February 2001.
3.If this Honourable Court considers the Appellant fulfils the criteria described in subsections 14(a), (b)(iii), then pursuant to subsection 123(5)(c) a community management order in relation to the Appellant specifying, as section 49 requires, the following:
(a)Peter Dudgeon, 29 Margarita St Wanguri NT;
(b)Danila Dilba Aboriginal Medical Centre (Inc.);
(c)Mental Health Unit Royal Darwin Hospital;
(d)Danila Dilba Aboriginal Medical Centre (Inc.);
(e)At times and days specified by the treating physicians at Danila Dilba Aboriginal Medical Centre (Inc.) and the Mental Health Unit Royal Darwin Hospital;
(f)Medication and treatment as specified by the treating physicians at Danila Dilba Aboriginal Medical Centre (Inc.) and at Mental Health Unit Royal Darwin Hospital;
(g)Rehabilitation, support and other services as provided by Danila Dilba Aboriginal Medical Centre (Inc.) and the Mental Health Unit Royal Darwin Hospital;
(h)To reside at his home in the care of Karen Mitchell, Nonnie Michels and Elizabeth O’Sullivan.”
The chronology of events with respect to Mr Dudgeon since 1 January 2001 can be briefly summarised as follows:
On 1 January 2001, Mr Dudgeon’s wife of 20 years left him taking three of their four children. On 5 January 2001, his business partner told him of the break-up of their business partnership. On 6 January 2001, Mr Dudgeon had a fall at his place of work, he suffered concussion. He was taken by ambulance to Royal Darwin Hospital and released with minor head injuries. On 7 January 2001, Mr Dudgeon contacted the Tamarind Centre advising that he “needed someone to talk to”. A health worker from Tamarind Centre visited Mr Dudgeon and took him to Cowdy Ward where he was admitted as a voluntary patient. He was diagnosed with bipolar disorder – manic episode and his admission changed to involuntary admission. On 10 January 2001 there was an application to the Mental Health Review Tribunal pursuant to s 123 of the Mental Health and Related Services Act 1998 (NT). The Tribunal made an order for involuntary admission on the grounds of mental illness for a period of seven days. The application was to be reviewed on 17 January 2001. The hearing before the Tribunal on 17 January 2001 was cancelled. On 18 January 2001, Mr Dudgeon was discharged from Cowdy Ward against medical advice.
On 2 February 2001, Mr Dudgeon was again admitted to Cowdy Ward as an involuntary patient. On 7 February 2001 a further review pursuant to s 123 of the Mental Health and Related Services Act went before the Mental Health Review Tribunal. The Tribunal made an order for involuntary admission on the grounds of mental illness for a period of 14 days. This order to be reviewed on 21 February 2001.
On 21 February 2001, there was a review by the Mental Health Review Tribunal and an order was made for involuntary admission on the grounds of mental illness for a period of seven days. This order was to be reviewed on 25 February 2001.
On 22 February 2001, Mr Dudgeon filed a notice of appeal from this order.
The appeal was heard by this Court on 23 February 2001. At the conclusion of the hearing of the appeal, I made an order pursuant to s 143(a) of the Mental Health and Related Services Act affirming the decision of the Tribunal made on 21 February 2001 that Mr Peter Dudgeon be detained as an involuntary patient for a period of seven days. I stated I would publish written reasons for my decision at a later date. I now publish my reasons.
At the hearing of the appeal Mr Hughes, from North Australian Aboriginal Legal Aid Service, appeared for the appellant Mr Dudgeon. Mr Lisson appeared on behalf of the Mental Health Review Tribunal. Mr Lisson indicated that his instructions were to submit to the jurisdiction of the Court and that he would not be advancing any argument in these proceedings. This Court was informed that this is the first appeal under the existing Mental Health and Related Services Act to the Supreme Court. For this reason Mr Lisson indicated his willingness to stay during the course of the hearing to offer such assistance as he could with respect to any procedural issues. At the close of the proceedings Mr Lisson made certain suggestions for the benefit of practitioners as to procedural guidelines for future appeals to this Court from the decision of the Mental Health Review Tribunal. I will discuss the suggested guidelines at the conclusion of my reasons for judgment.
On the hearing of the appeal, Mr Farquhar sought leave to appear for the Northern Territory Health Services as contradictor although not joined as a party to the appeal.
There was no objection to the application for leave to appear and leave was granted.
An appeal to the Supreme Court is pursuant to Part 16 of the Mental Health and Related Services Act. Section 142(3) provides that an appeal be by way of rehearing.
The procedure, with respect to the conduct of the appeal, was discussed and it was agreed that Mr Farquhar, on behalf of Northern Territory Health Services would proceed first and call evidence with Mr Hughes for the appellant, having a right of cross examination. At the conclusion of the evidence presented on behalf of the Northern Territory Health Services the appellant had a right to call evidence and such witnesses could be cross examined by counsel for the Northern Territory Health Services to be followed by submissions from the respective parties.
Evidence was called by the Northern Territory Health Services from Dr Reiner Heigl and Dr Steele.
Dr Heigl is an authorised medical practitioner and authorised psychiatric practitioner in the Northern Territory. Dr Heigl gave evidence he is a psychiatric practitioner at Cowdy Ward, Royal Darwin Hospital. In this capacity he had prepared an application to the Mental Health Review Tribunal to have Mr Dudgeon held as an involuntary patient at Cowdy Ward on the grounds of mental illness. This application was heard by the Mental Health Review Tribunal on 21 February resulting in the orders that are the subject of the present appeal.
Dr Heigl stated Mr Dudgeon had been assessed by another psychiatrist at Cowdy Ward as suffering bipolar disorder. Bipolar disorder is a disorder of mood. It cannot be cured and persists through life. If the illness is not recognised and treated it can be fatal. Persons in this mental state can deteriorate and damage themselves or others and can be so depressed as to take their own life. Dr Heigl stated he had been treating Mr Dudgeon since his admission to Royal Darwin Hospital on 2 February 2001. He had observed symptoms consistent with bipolar disorder and agreed with the diagnosis of bipolar disorder which is a recognised mental illness. Patients with bipolar disorder will often not accept or have any insight into their condition which means they will not accept treatment and their condition can deteriorate.
Dr Heigl stated he had been able to make constant observations of Mr Dudgeon whilst Mr Dudgeon was in Cowdy Ward. Mr Dudgeon was in the manic phase of the disorder. The basic treatment is the provision of a safe environment, hospitalisation, medication to stabilise mood and tranquillise the person as the illness enters the chronic stage. Dr Heigl referred to problems Mr Dudgeon had in his life with the break up of his relationship and the loss of his business. These were aggravating factors although not the cause of the condition. Dr Heigl gave evidence that the aim is to have Mr Dudgeon returned back to his own home but at the present time it was necessary to continually monitor his condition and to give him medication as it becomes necessary. Dr Heigl stated he was aware of the evidence given by members of Mr Dudgeon’s family to the Tribunal as to the arrangements they could put in place for Mr Dudgeon’s care. Dr Heigl stated that he wanted to work toward discharging Mr Dudgeon to the family environment. At the present time there could be a danger if Mr Dudgeon were released from Royal Darwin Hospital. It would not be possible to closely monitor his condition and ensure that appropriate medication was being taken. Adjustment of medication can only be adequately done while the patient is in the hospital. Dr Heigl detailed various aspects of Mr Dudgeon’s condition including sleeping difficulties and other symptoms such as anger and threats of suicide. In Dr Heigl’s opinion, Mr Dudgeon’s condition could deteriorate very quickly. Dr Heigl also described the arrangements that could be made for Mr Dudgeon to attend as an outpatient in particular at the Tamarind Outpatient Centre when he was sufficiently stabilised to be returned to the community under a community management plan. In Dr Heigl’s opinion this could be approximately a further two weeks and in the meantime he would be granted periods of leave to be with his family. Dr Heigl’s assessment was that members of Mr Dudgeon’s family would become exhausted if required to care for him at the present time and would not be able to exercise the required supervision.
Evidence was also given by Dr Steele who is an authorised psychiatric practitioner and the supervising psychiatrist at Cowdy Ward. Dr Steele stated she had been involved with the care of Mr Dudgeon since his admission to hospital. Dr Steele agreed that Mr Dudgeon was suffering from the mental illness known as bipolar disorder. Dr Steele gave evidence this is a very serious mental illness and if untreated there can be a high risk of suicide. Dr Steele stated she was very impressed with members of Mr Dudgeon’s family who wanted to care for him in a home environment. The plan was to work with these family members to enable Mr Dudgeon to be released home to their care, when he is sufficiently stabilised. Dr Steele referred to past incidents when Mr Dudgeon has threatened self harm and stated that as he continues with medication under supervision he will be better able to cope when he is discharged from the hospital.
Mr Hughes, on behalf of the appellant, called evidence from the appellant’s mother, Mrs Mary Grimm. Mrs Grimm gave evidence that she and three other family members would be willing to give support and assistance to Mr Dudgeon in his home and supervise the taking of his medication. Mrs Grimm detailed plans she had made to draw up a roster system for a member of Mr Dudgeon’s family to be with him at all times. All these family members were willing to participate in this scheme and these family members had indicated their willingness to care for Mr Dudgeon in his own home which would be a less stressful situation than a hospital.
I accept the evidence of Mrs Grimm that Mr Dudgeon has a very concerned and caring family who are willing to make considerable personal sacrifices to care for him. Whilst it is clearly appropriate for Mr Dudgeon’s family to be closely involved in his future management, I was not satisfied at the date of the hearing of the appeal that the evidence relating to his condition was such that he could appropriately be released to their care at that time.
I accept the evidence given by Dr Heigl and Dr Steele that Mr Dudgeon has bipolar disorder which is a mental illness within the meaning of s 6 of the Mental Health and Related Services Act.
The criteria for involuntary admission on the grounds of mental illness are set out in s 14 of the Mental Health and Related Services Act which provides as follows:
“14. Involuntary Admission on Grounds of Mental Illness
The criteria for the involuntary admission of a person on the grounds of mental illness are that -
(a)the person has a mental illness;
(b)as a result of the mental illness -
(i)the person requires treatment that is available at an approved treatment facility;
(ii)the person -
(A)is likely to cause imminent harm to himself or herself, a particular person or any other person; or
(B)is likely to suffer serious mental or physical deterioration,
unless he or she receives the treatment; and
(iii)the person is not capable of giving informed consent to the treatment or has unreasonably refused to consent to the treatment; and
(c)there is no less restrictive means of ensuring that the person receives the treatment.”
From the evidence of Dr Heigl and Dr Steele, I am satisfied that the criteria for involuntary admission are present with respect to Mr Dudgeon.
The interpretation of the Act is set out in s 8. The principles relating to provision of treatment and care are set out in s 9 of the Act and the principles relating to involuntary admission and treatment are set out in s 10 of the Act, which provides as follows:
“When admitting and treating a person as an involuntary patient the following principles apply:
(a)the person should only be admitted after every effort to avoid the person being admitted as an involuntary patient has been taken;
(b)where the person needs to be taken to an approved treatment facility or into custody for assessment, the assistance of a member of the Police Force is to be sought only as a last resort and there is no other means of taking the person to the approved treatment facility or into custody;
(c)involuntary treatment is to be for a brief period, reviewed regularly and is to cease as soon as the person no longer meets the criteria for involuntary admission;
(d)where the person is from a non-English speaking background, involuntary treatment is, where possible, to be provided by health service providers who are from the same non-English speaking background.”
On the evidence before me I am satisfied that the principles relating to involuntary admission have been complied with. I confirm that the order of this Court made on 23 February 2001 is: “pursuant to s 143(a) of the Mental Health and Related Services Act affirming the decision of the Tribunal made on 21 February 2001 that Mr Peter Dudgeon be detained as an involuntary patient for a period of seven days.”
The suggested guidelines for practitioners, compiled with the assistance of Mr Lisson, with respect to the conduct of appeals from the Mental Health Review Tribunal are as follows:
·The appropriate parties are the patient, or their representative as the appellant and the Mental Health Review Tribunal and the Northern Territory of Australia (for the Minister for Health, Family and Children’s Services) as respondents. On occasions, there may be another party. Section 127(2)(c) of the Act refers to “a person with a genuine interest, or with a real and immediate concern for the welfare of, the person” in regards to a transfer order. The Act also refers to a principal community visitor. It is possible that those persons may also be parties to the proceedings.
·The Tribunal should be made aware that an appeal has been brought. Upon filing of an appeal, a copy of the appeal should be sent to the Tribunal, and the Tribunal would then forward the file to this Court.
·In relation to access to the file of the Tribunal, the situation may differ from case to case and would be a matter for the discretion of this Court.
·Service of documents in these matters must be accomplished quickly. Mr Lisson has advised that service for the Northern Territory may be effected upon the Solicitor for the Northern Territory, pursuant to subsection 13(4) of the Crown Proceedings Act 1993 (NT).
·An appeal from the Tribunal is an appeal from an expert tribunal that has specialist members. The rehearing in this Court takes place before a single Judge. Under Rule 34.01 of the Supreme Court Rules 1987 (NT) the Court can determine the procedure: Rule 34.01 provides:
“34.01 Powers of Court
(1) At any stage of a proceeding, the Court may give directions for the conduct of the proceeding which it thinks conducive to its effective, complete, prompt and economical determination.
(2) A party may apply for directions on the hearing either of a summons filed for the purpose or of a summons for other relief.”
·Rule 83 generally provides a procedure of appeals to the Supreme Court. Rule 83.02 provides that procedure in relation to appeal shall be in accordance with the act under which the appeal was brought.
These Reasons for Judgment were placed in the Supreme Court boxes for the respective parties on 30 March 2001.

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