EF and MENTAL HEALTH TRIBUNAL
[2018] WASAT 93
•11 SEPTEMBER 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: MENTAL HEALTH ACT 2014 (WA)
CITATION: EF and MENTAL HEALTH TRIBUNAL [2018] WASAT 93
MEMBER: PRESIDENT, JUSTICE J C CURTHOYS
HEARD: 18 JULY 2018
DELIVERED : 11 SEPTEMBER 2018
FILE NO/S: MHA 5 of 2018
BETWEEN: EF
Applicant
AND
MENTAL HEALTH TRIBUNAL
Respondent
Catchwords:
Mental health - Involuntary treatment order - Review of decision of Mental Health Tribunal - Where decision relates to involuntary treatment order that has been revoked - Where a second involuntary order was made but has not been the subject of review by the Mental Health Tribunal - Where patient deemed to have been an involuntary patient continuously under the Act - Whether Tribunal should hear and determine application for review of the Mental Health Tribunal's decision in relation to the involuntary treatment order that is no longer in force
Legislation:
Mental Health Act 2014 (WA), s 5(b), s 10, s 11, s 21(2), s 23, s 24, s 25, s 386, s 386(4), s 386(5), s 386(5)(a), s 387(4), s 388, s 390, s 391, s 394, s 395, s 493, s 494, s 494(1), Div 3, Pt 21, Pt 22
State Administrative Tribunal Act 2004 (WA), s 9, s 13, s 27, s 27(1), s 29, s 29(1), s 47, s 59(4)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Applicant | : | Mr D McDonald |
| Respondent | : | N/A |
Solicitors:
| Applicant | : | Mental Health Law Centre |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
LM and Mental Health Review Board [2006] WASAT 123
LS v Mental Health Review Board [2015] WASCA 128
REASONS FOR DECISION OF THE TRIBUNAL:
Background
The applicant is a 22yearold woman with a long-standing diagnosis of anorexia nervosa since age 11. She has had multiple hospital admissions in relation to this illness.
The applicant was first placed on a community treatment order (CTO) on 9 November 2017. Since then she has had periods as an inpatient but has predominantly been managed under various CTOs.
On 26 February 2018, Dr Gothami Madadeniya made a CTO in relation to the applicant (first order) requiring the applicant to comply with all of the supervising psychiatrist's directions about the treatment to be provided to her under the order. The first order directed the applicant as follows:
1.Your care will be managed by the Midland Community team
2.You need to maintain a weight above a BMI of 18.5 and will be readmitted to hospital should your weight drop below this
3.to attend the appointments at Midland Community Mental Health Centre, your GP, and Dietician. Failure to attend any of the appointments without good reasons on two successive appointments may result in readmission as these will be interpreted as non engagement with treatment and avoidance which increases your chance of relapse
4.to be weighed either weekly or fortnightly by the Midland Community MH Centre or as directed. Weight will also be checked by your GP, and Dietician. Failure to be weighted may result in re-admission as you are known to lose weight rapidly, use laxatives and water load.
5.Blood and urine tests may be ordered by your doctors. Urine specific gravity may be tested as required.
6.Admission will occur if the following occurs: weight loss of 1kg per week for three weeks, if there is evidence of medical illness related to your weight loss or re-emergence of unsafe behaviours including but not limited to laxative use, vomiting or excessive exercise.
7.To be admitted to SJOG psychiatric ward every month for weighing purposes and for overnight stay. Blood tests may be required. If you have maintained a BMI above 18.5 you will be discharged the next day.
The start date of the first order was specified as 26 February 2018 and the end date was specified as 25 May 2018. The supervising psychiatrist named in the first order was Dr Hector Divinagracia.
On 4 April 2018 an initial review of the applicant's involuntary status was heard by the Mental Health Tribunal as required by s 386 of the Mental Health Act 2014 (WA) (MH Act). The Mental Health Tribunal determined that the first order should remain in place but ordered Dr Divinagracia to vary it so as to remove conditions six and seven from the order on the basis that the Mental Health Tribunal considered those conditions invalid (Transcript of Mental Health Review Board (sic Mental Health Tribunal) 4 April 2018 Matter No: 16036).
Later on 4 April 2018 the first order was varied to remove conditions six and seven. This variation was signed by Dr Divinagracia as the supervising psychiatrist.
On 5 April 2018 the applicant lodged an application for review of the Mental Health Tribunal's decision in this Tribunal pursuant to s 494(1) of the MH Act.
On 10 May 2018 Dr Divinagracia revoked the first order. At this time the applicant was a voluntary inpatient.
On 15 May 2018 Dr Amir Tavasoli made a new CTO in relation to the applicant (second order) which required the applicant to comply with all the supervising psychiatrist's direction about the treatment to be provided to her under the order. The applicant was directed as follows:
1.Your care will be managed by the Midland Community Clinic
2.You need to maintain your weight above a BMI of 17.5 and will be readmitted to hospital should your weight falls below this
3.You need to attend the appointments with your GP, Dietician and Midland Community Clinic. If you fail to attend appointments without valid reasons, you will be in breach of your CTO and may be readmitted to hospital. Failure to attend two successive appointments leads to readmission
5.Blood and urine tests including specific gravity may be requested by your doctors.
6.Admission will occur if the following circumstances: weight loss of 1kg per week for 3 weeks, if there is sign of medical illness related to your weight loss or re-emergence of unsafe behaviours including but not limited to laxative use, vomiting or excessive exercise
Dr Hitesh Maru is named as the supervising psychiatrist in the second order. Its start date is specified as 15 May 2015 and the end date is specified as 14 August 2018.
The application for review was listed for a final hearing on 18 June 2018.
As at 14 June 2018, the second order had not been the subject of review by the Mental Health Tribunal. The jurisdiction of the Tribunal to review the Mental Health Tribunal's decision about an involuntary treatment order is contained in s 494(1) of the MH Act, which provides:
A person in respect of whom the Mental Health Tribunal makes a decision who is dissatisfied with the decision may apply to the State Administrative Tribunal for a review of the decision.
Consequently, the presiding member of the panel listed to hear the matter caused the applicant's representative to be notified that the Tribunal considered that there was a question as to whether the Tribunal has jurisdiction to determine the application for review of the first order or, if the application were to be amended, the second order.
The applicant filed brief written submissions with respect to jurisdiction on 18 June 2018. After hearing from the applicant's representative, the Tribunal had not been persuaded that its preliminary view was incorrect. However, the Tribunal did not make a final determination on the issue as the applicant requested an adjournment of the proceeding. The matter was adjourned to a directions hearing on 18 July 2018.
At the directions hearing on 18 July 2018 the applicant's representative presented more detailed submissions to support the applicant's position that the Tribunal did have jurisdiction to determine the application for review of the first order together with the second order. The applicant requested the matter be listed for final hearing on the basis that there was no jurisdictional impediment to determining the application or, alternatively, that the member refer the question of jurisdiction to the President as a question of law, pursuant to s 59(4) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The presiding member of the Tribunal made the latter of these two orders on the basis that the question of jurisdiction involved an important question of law that potentially effects a number of people, and if there is no jurisdiction this may result in increasing the difficulty for people the subject of involuntary orders being able to access review in this Tribunal.
The question of law referred was:
Does the Tribunal have jurisdiction to hear and determine an application for review of an involuntary treatment order (community) made on 26 February 2018 (the first order) in the following circumstances:
1.The first order was made by Dr Madeniya at Fremantle Hospital and had an end date of 25 May 2018;
2.Care was transferred to Dr Divinagracia at Midland Community Mental Health Service;
3.On 4 April 2018 the first order was reviewed by the Mental Health Commission and affirmed subject to an order that the treating psychiatrist remove 2 conditions;
4.An application was made to the Tribunal for review of the Mental Health Tribunal's decision to affirm the first order on 5 April 2018;
5.The applicant was admitted to a private treatment facility and then to a private hospital as a voluntary patient whilst still subject to the first order;
6.On 10 May 2018 the first order was revoked by Dr Divinigracia whilst the applicant was in the private hospital;
7.On 15 May 2018 a new involuntary treatment order (community) (the second order) was made by Dr Tavasoli with an end date of 14 August 2018 when the applicant was discharged from the private hospital; and
8.At the time that the application was listed for hearing the Mental Health Tribunal had not reviewed the second order, although it subsequently reviewed the second order on 2 July 2018 and affirmed the second order.
Legislation
The long title to the MH Act is:
An Act
•to provide for the treatment, care, support and protection of people who have a mental illness; and
•to provide for the protection of the rights of people who have a mental illness; and
•to provide for the recognition of the role of carers and families in providing care and support to people who have a mental illness,
and for related purposes.
The objects of the MH Act are specified at s 10 of the MH Act as follows:
(1)The objects of this Act are as follows
(a)to ensure people who have a mental illness are provided the best possible treatment and care
(i)with the least possible restriction of their freedom; and
(ii)with the least possible interference with their rights; and
(iii)with respect for their dignity;
(b)to recognise the role of carers and families in the treatment, care and support of people who have a mental illness;
(c)to recognise and facilitate the involvement of people who have a mental illness, their nominated persons and their carers and families in the consideration of the options that are available for their treatment and care;
(d)to help minimise the effect of mental illness on family life;
(e)to ensure the protection of people who have or may have a mental illness;
(f)to ensure the protection of the community.
(2)A person or body performing a function under this Act must have regard to those objects.
Section 11 of the MH Act provides:
A person or body performing a function under this Act must have regard to the principles set out in the Charter of Mental Health Care Principles.
An involuntary treatment order may be an inpatient treatment order or a community treatment order: s 21(2) of the MH Act. In relation to community treatment orders, s 23 of the MH Act provides:
(1)A community treatment order is an order in force under this Act under which a person can be provided with treatment in the community without informed consent being given to the provision of the treatment.
(2)A community treatment order may be made under section 55(1)(b), 56(1)(a)(ii), 61(1)(b), 72(1)(b), 75(1), 89(2)(b) or 90(1)(a).
Section 24 of the MH Act provides for the making of an involuntary treatment order and s 25 of the MH Act specifies the criteria for making an involuntary treatment order. It is not necessary for present purposes to reproduce those provisions. No issue is raised in relation to the process taken in making the first order in this application so it is not necessary to canvas the provisions relating to the various necessary procedures contained in the MH Act.
Division 3 of Pt 21 of the MH Act provides for review of involuntary treatment orders by the Mental Health Tribunal. Relevantly, s 386, s 388, s 390 and s 391 of the MH Act provide as follows:
386.Initial review of order made
(1)In this section
initial review period, for an involuntary treatment order, means
(a)if, when the order is made, the involuntary patient is an adult the period of 35 days from the day on which the order is made; or
(b)if, when the order is made, the involuntary patient is a child the period of 10 days from the day on which the order is made.
(2)Unless subsection (4) or (5) applies, as soon as practicable after an involuntary treatment order is made and, in any event, by the end of the initial review period, the Tribunal must review the order to decide whether or not the involuntary patient is still in need of the involuntary treatment order having regard to the criteria specified in section 25.
(3)It is sufficient for compliance with subsection (2) if the review is commenced in accordance with that provision and is completed as soon as practicable.
(4)The Tribunal is not required to review the order under subsection (2) if the involuntary patient has not, under section 388, been an involuntary patient continuously since the order was made.
(5)The Tribunal is not required to review the order under subsection (2) if
(a)the Tribunal has
(i)previously reviewed under this Division an involuntary treatment order made in respect of the involuntary patient; or
(ii)previously reviewed under this Division the terms of a community treatment order that a psychiatrist has been directed under section 395(2)(b) to make in respect of the involuntary patient;
and
(b)the involuntary patient has, under section 388, been an involuntary patient continuously since the previous review.
388.Involuntary patient for continuous period
For sections 386(4) and (5)(b) and 387(4), a person has been an involuntary patient continuously for a period if
(a)one, or a series of 2 or more, involuntary treatment orders were in force in respect of the person for the whole period; or
(b)during the period, an involuntary treatment order ceased to be in force in respect of the person and another involuntary treatment order came into force in respect of the person on or within 7 days after the day of the cessation.
390.Application for review
(1)A person specified in subsection (2) may apply to the Tribunal for a review of any of these things
(a)an involuntary treatment order, to decide whether or not the involuntary patient is still in need of an involuntary treatment order having regard to the criteria specified in section 25;
(b)an inpatient treatment order, to decide whether or not the involuntary inpatient is still in need of an inpatient treatment order having regard to the criteria specified in section 25(1);
(c)a community treatment order, to decide whether or not the terms of the order are appropriate;
(d)a transfer order made under section 66(1) or 91(2) in respect of an involuntary inpatient, or a refusal to make such an order, to decide whether or not the making of the order or the refusal to do so is appropriate;
(e)the transfer under section 135(1)(a) of a psychiatrist's responsibility as the supervising psychiatrist under a community treatment order, or a refusal to transfer that responsibility, to decide whether or not the transfer of responsibility or the refusal to do so is appropriate;
(f)the transfer under section 137(a) of a practitioner's responsibility as the treating practitioner under a community treatment order, or a refusal to transfer that responsibility, to decide whether or not the transfer of responsibility or the refusal to do so is appropriate;
(g)a transfer order made under section 555(1) in respect of a State inpatient, or a refusal to make such an order, to decide whether or not the making of the order or the refusal to do so is appropriate.
(2)An application may be made under subsection (1) by any of these people
(a)the involuntary patient;
(b)a carer, close family member or other personal support person of the involuntary patient;
(c)a mental health advocate;
(d)any other person who, in the Tribunal's opinion, has a sufficient interest in the matter.
(3)The application must be in writing and, unless subsection (4) applies, may be made at any time.
(4)The application cannot be made within the prescribed period after the day on which the Tribunal makes a decision that involves a consideration of substantially the same issues as would be raised by the application unless there has been a material change in the involuntary patient's circumstances since that day.
(5)For subsection (4), the prescribed period is
(a)if, on the day on which the decision is made, the involuntary patient is an adult the period of 28 days; or
(b)if, on the day on which the decision is made, the involuntary patient is a child — the period of 7 days.
391.Review on Tribunal's own initiative
The Tribunal may, on its own initiative whenever it considers it appropriate, review
(a)an involuntary treatment order referred to in section 390(1)(a) to (c) to decide the matter referred in that provision; or
(b)a transfer order referred to in section 390(1)(d) or (g) to decide the matter referred in that provision; or
(c)a transfer of responsibility under section 390(1)(e) or (f) to decide the matter referred to in that provision.
The things to which the Mental Health Tribunal must have regard when conducting a review and the things that it may do on completing a review are contained in s 394 and s 395 of the MH Act respectively.
As stated above, the jurisdiction of this Tribunal to review decisions of the Mental Health Tribunal is contained in s 494 of the MH Act, read together with s 13 of the SAT Act. Section 493 contains a number of definitions for the purposes of Pt 22 of the MH Act (in which s 494 is located) as follows:
Terms used
In this Part
application means an application made to the State Administrative Tribunal under this Part;
decision, of the Mental Health Tribunal, includes an order, direction or declaration made by the Mental Health Tribunal;
hearing means a hearing in a proceeding;
party means a party to a proceeding;
person concerned, in an application or proceeding, means the patient or other person whom the application or proceeding concerns;
proceeding means a proceeding of the State Administrative Tribunal under this Part and includes part of a proceeding.
Applicant's submissions
The applicant submits that because the Tribunal is required to determine an application for review de novo, standing in the shoes of the Mental Health Tribunal, the Tribunal will have jurisdiction if the Mental Health Tribunal would be able to exercise its own jurisdiction.
The Mental Health Tribunal is required to review an involuntary treatment order as soon as practicable after it is made, and in any event before the end of the initial review period (35 days from when the order is made in relation to an adult): s 386 of the MH Act. However the Mental Health Tribunal is not required to review an involuntary treatment order if it has previously reviewed an involuntary treatment order made in respect of the patient and the involuntary patient has, under s 388 of the MH Act, been an involuntary patient continuously since the previous review: s 386(5) of the MH Act.
The applicant submits that because the second order came into force less than seven days after the first order was revoked, the applicant was an involuntary patient continuously pursuant to s 388 of the MH Act. Therefore the Mental Health Tribunal was not required to review the second order within 35 days of it coming into effect.
The applicant says that she is still seeking review of the Mental Health Tribunal's decision of 4 April 2018. It is submitted that the fact that the first order has been revoked does not mean there is no jurisdiction to review that order because the applicant remained an involuntary patient continuously when the second order came into effect, and therefore the applicant's situation is different from the situation under consideration in LS v Mental Health Review Board [2015] WASCA 128 (LS).
Determination
The applicant's submission that the Tribunal's review of the Mental Health Tribunal's decision in relation to the first order is by way of hearing de novo is, of course, correct: s 27(1) of the SAT Act. If by submitting that the Tribunal 'stands in the shoes of the Mental Health Tribunal' the applicant means that the Tribunal has, when dealing with a matter in its review jurisdiction, functions and discretions corresponding to those exercisable by the decision maker in making the reviewable decision, then this too is correct: s 29(1) of the SAT Act. That is not to say that the Tribunal must determine the matter based only on the material before the Mental Health Tribunal. The combined effect of s 27 and s 29 of the SAT Act means that the Tribunal must make the correct and preferable decision based on the material before it and on the law that applies at the time of reaching its decision, so long as the Tribunal is not thereby asked to deal with a matter that is different in essence from the matter that was before the decision maker.
The applicant is also correct in her submission that the Court of Appeal in LS determined that the Mental Health Review Board (as it then was) did not have any power to review an involuntary treatment order in circumstances where the person was no longer an involuntary patient. However, it is not entirely correct to take from that proposition that in order to determine if the Tribunal has jurisdiction one must consider whether the Mental Health Tribunal would have jurisdiction in the same circumstances. I note that it is also not correct to say that the Tribunal would not have jurisdiction if the same circumstance as in LS were before it in these proceedings: LS at [134][135]. I do not think that it can be taken from the reasoning in LS that in order to determine the Tribunal's jurisdiction one considers only the powers of the original decision maker. The Tribunal's jurisdiction can only be found by ascertaining what powers it has been given by the MH Act and the SAT Act: s 13 of the SAT Act.
As in LS, in this case the Tribunal's jurisdiction was enlivened when the applicant lodged an application for review of the decision of the Mental Health Tribunal made on 4 April 2018 in relation to the first order. The Tribunal's task is to determine the correct and preferable decision in relation to whether the applicant is still in need of the involuntary treatment order, that is, the first order, as at the date of the review. The applicant is a person in respect of whom the decision the subject of review was made and she is dissatisfied with that decision. The Tribunal therefore has jurisdiction to determine her application for review of the Mental Health Tribunal's decision in relation to the first order.
The real question of law to be determined is whether the Tribunal is able to carry out its statutory task of review in the circumstances of this case. To answer this, it is necessary to commence with consideration of whether, in the same circumstances, the Mental Health Tribunal would have the power to conduct an initial review of the first order.
As a starting point, consideration must be given to whether the Mental Health Tribunal, if required to review the first order after that order had been revoked, would have power to review that order.
As can be seen from s 386 of the MH Act cited above, the Mental Health Tribunal's task, when conducting an 'initial review' following the making of an involuntary treatment order is to decide whether or not the involuntary patient is still in need of 'the' involuntary treatment order. The language used in s 386 indicates, at least at first glance, that the order that is required to be the subject of an initial review is 'the' involuntary treatment order that is made. The initial review period is specified by way of the number of days from the day on which 'the' order is made. The review is required to occur as soon as practicable after 'an' involuntary order is made. In addition, s 386(5) and s 388 of the MH Act expressly provide for situations where there have been other involuntary treatment orders made before or after the involuntary treatment order that is the subject of the initial review, but s 386 of the MH Act does not direct consideration of whether the patient is still in need of 'an', or 'any' involuntary treatment order. However, as can be seen from the following, the context may require that s 386 of the MH Act be understood as directing that the question to be determined is whether the patient is in need of 'an' involuntary treatment order.
The Mental Health Tribunal is not required to review an order if the involuntary patient has not been an involuntary patient continuously, within the meaning of s 388 of the MH Act, since the order was made: s 386(4) of the MH Act. This means that if there has not been one, or a series of two or more, involuntary treatment orders in force for the whole period, or if an involuntary treatment order ceases to be in force and another involuntary treatment order comes into force in relation to the same person more than seven days after the previous order ceased there is no requirement to conduct an initial review of what might be described as the initial or commencing involuntary treatment order.
Although the Mental Health Tribunal is not required to carry out an initial review of an involuntary order where the person has not been an involuntary patient continuously within the meaning of s 388 of the MH Act, this does not prevent an application for review under s 390 of the MH Act or a review on the Mental Health Tribunal's own initiative under s 391 of the MH Act.
In this case, the applicant was an involuntary patient continuously within the meaning of s 388 of the MH Act. If, at the time the initial review of the first order came before the Mental Health Tribunal the first order had been revoked and a new CTO made within seven days or less after the first order had been revoked, the Mental Health Tribunal would still have been required to carry out the initial review of the first order as neither of the conditions in paragraph (a) of s 386(5) of the MH Act had been met. Therefore, unlike the situation in LM and Mental Health Review Board [2006] WASAT 123, the Mental Health Tribunal would, in those circumstances, have retained the power to determine the initial review of the first order.
If the Mental Health Tribunal reviewed the first order in those circumstances and determined that the applicant was not in need of 'the' first order then, as the subsequent CTO is in nearly identical terms, unless the reason for that conclusion was that the first order had been revoked and the subsequent CTO was now in place, it must follow that the applicant is also not in need of the second order. Yet, because the applicant was a continuous involuntary patient within the meaning of s 388 of the MH Act, there is no requirement to hold an initial review of the subsequent CTO. The requirement to conduct an initial review (which is a relatively quick review as compared to subsequent periodic reviews) of the first order even though it has been revoked and replaced by a new involuntary treatment order would have no utility if the Mental Health Tribunal has no power to consider whether the applicant still needs, and if it determines she does not, set aside the involuntary treatment order that is currently in effect. The regime created by the MH Act is not capable of working properly unless one understands s 386 of the MH Act as requiring consideration, where a patient has been an involuntary patient continuously within the meaning of s 388 of the MH Act, of whether the patient is still in need of 'the' effectively continued involuntary treatment order under which she has been an involuntary patient continuously. While the MH Act does not expressly say so, as a matter of necessary implication 'the' involuntary treatment orders, where one has been revoked and a new one made within seven days of that revocation, are required to be treated, for the purposes of review, as a single involuntary treatment order.
The Tribunal, having the functions and discretions corresponding to those exercisable by the Mental Health Tribunal in dealing with this review, would in the same circumstances retain power to conduct a review the first order in relation to whether the applicant is still in need of the involuntary treatment order, which for the purposes of the question posed by s 386 of the MH Act means both the first order and the subsequent CTO.
However, having started with analyses of that situation, this is not a case where the Mental Health Tribunal considered an initial review of the first order at a time when the first order had been revoked and the subsequent CTO made within seven days of that revocation. At the time of the initial review, the first order was still in effect. It is necessary therefore to consider what difference, if any, this makes.
As stated above, the Tribunal's power to review granted by s 494 of the MH Act, is a power to review a decision of the Mental Health Tribunal. There is nothing in Pt 22 of the MH Act, which provides for reviews by the Tribunal, that states that in circumstances where an applicant is an involuntary patient continuously within the meaning of s 388 of the MH Act, the Tribunal may review the subsequent order even though it has not been the subject of any decision by the Mental Health Tribunal. Section 388 of the MH Act itself provides that a person has been an involuntary patient continuously for 'sections 386(4) and (5)(b) and 387(4)' of the MH Act only.
There is nothing in the explanatory memoranda for the Bill that became the MH Act or in the parliamentary debates that sheds light on the intended purpose of s 388 of the MH Act or on whether that section changes how s 494 of the MH Act should be understood. From the context of s 388 and the provisions of the MH Act relating to review of involuntary treatment orders in the MH Act, it would seem that the purpose of s 388 of the MH Act is to prevent the need for a second initial review (which is a review that must occur within a shorter period of time than a periodic review) where two involuntary treatment orders are made very closely in time to each other. This fits with the stated intent in the second reading speeches of balancing the need to ensure appropriate accountability against the need to avoid unnecessary regulatory burden.
Given that there is a provision that allows the subject of an involuntary treatment order to apply to the Mental Health Tribunal for review on his or her own initiative (s 390 of the MH Act), it cannot be said that s 494 of the MH Act must, as a matter of necessary implication, be understood as allowing review of an order that has not been the subject of a review and decision by the Mental Health Tribunal because the patient has been an involuntary patient continuously within the meaning of s 388 of the MH Act. Therefore, while the Tribunal has jurisdiction to review the first involuntary order, it does not have jurisdiction to review the second order until the Mental Health Tribunal has conducted a review of that order and made a decision in relation to it.
At the time that the application for review of the first order came for hearing, the first order had been revoked and the second order remained in place but had not been the subject of review by the Mental Health Tribunal. If the Tribunal had then proceeded to review the first order, even if the Tribunal was satisfied that the applicant was not in need of the first order, there is no effective order the Tribunal could make in relation to the first order as it had been revoked. In addition, the applicant would have remained subject to the second order.
The Tribunal is required, in dealing with matters within its jurisdiction, to have in mind its main objectives as specified in s 9 of the SAT Act:
The main objectives of the Tribunal in dealing with matters within its jurisdiction are
(a)to achieve the resolution of questions, complaints or disputes, and make or review decisions, fairly and according to the substantial merits of the case; and
(b)to act as speedily and with as little formality and technicality as is practicable, and minimise the costs to parties; and
(c)to make appropriate use of the knowledge and experience of Tribunal members.
If the second order had been the subject of a review by the Mental Health Tribunal and the applicant was dissatisfied with that decision, it would no doubt be appropriate to allow the applicant to amend her application to ask the Tribunal to review the Mental Health Tribunal's decision in relation to the second order. Where the second order has not been the subject of any decision by the Mental Health Tribunal there is no utility in assessing whether the applicant is in need of the first order, being an involuntary treatment order that is no longer in force. Unless it could be shown that there is some utility in conducting a review, having regard to the Tribunal's objectives, it would be appropriate to dismiss an application to review an involuntary treatment order that is no longer in force under s 47 of the SAT Act as lacking in substance. It has not been shown that there is some utility in conducting a review.
The answer to the question of law referred to the President is:
In the circumstances identified, the Tribunal does have jurisdiction to review the first order, but unless the applicant can satisfy the Tribunal that there is some real utility in reviewing an order that is no longer in force, her application for review of the first order should be dismissed pursuant to s 47 of the SAT Act as lacking in substance.
Orders
1.The application is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JUSTICE J CURTHOYS, PRESIDENT
11 SEPTEMBER 2018
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