EF v Mental Health Tribunal - [2018] WASAT 22

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: MENTAL HEALTH ACT 2014 (WA)

CITATION: EF and MENTAL HEALTH TRIBUNAL [2018] WASAT 22

MEMBER: MS H LESLIE (MEMBER)
MS M CONNOR (MEMBER)
DR F NG (SENIOR SESSIONAL MEMBER)

HEARD: 19 JANUARY 2018

DELIVERED : 19 JANUARY 2018

PUBLISHED : 22 MARCH 2018

FILE NO/S: MHA 18 of 2017

BETWEEN: EF
Applicant
AND
MENTAL HEALTH TRIBUNAL
Respondent

Catchwords:

Mental health Mental Health Act 1996 Mental Health Act 2014 Mental illness Anorexia nervosa Mental Health Tribunal Review jurisdiction of the State Administrative Tribunal Mental illness in need of treatment Significant risk to health or safety Incapacity to make treatment decisions Treatment cannot reasonably be provided in the community No less restrictive alternative to the making of a community treatment order

Legislation:

Mental Health Act 1996 (WA), s 142(1)
Mental Health Act 2014 (WA), s 4, s 6, s 18, s 21, s 23, s 25, s 26, s 33, s 121, s 386, s 390, s 391, s 394, s 395, s 494, s 547(1)(a)
State Administrative Tribunal Act 2004 (WA), s 27, s 29, Pt 3, Div 3

Result:

Application dismissed
Involuntary inpatient order to remain in effect

Summary of Tribunal's decision:

EF suffers from chronic anorexia nervosa.
EF sought review of the community treatment order (CTO) made under the Mental Health Act 2014 (WA) (MHA) and the CTO was confirmed by the Mental Health Tribunal on review.
EF sought review of the decision of the Mental Health Tribunal by the State Administrative Tribunal (the Tribunal). After the application was made to the Tribunal but before the Tribunal heard the matter, EF was again hospitalised under an involuntary inpatient treatment order made under the MHA. The inpatient order by operation of law revoked the CTO. The inpatient order was subsequently continued by way of a continuation order made under the MHA.
The Tribunal found that under the current MHA, it is the particular order to which the patient is subject that is the subject of review by the Tribunal, not the patient's status under the order. The order that was before the MHT was the CTO, not the involuntary inpatient order. As the CTO had fallen away, it was not therefore possible for the Tribunal to conduct a review of that order. In the view of the Tribunal, because the involuntary inpatient order had not been the subject of review by the MHT, it was not possible for the Tribunal to conduct a review of that order.
The Tribunal found that even if it were possible for the Tribunal to conduct a review of the current involuntary inpatient order by approaching the review on the basis of review of patient status rather than the terms of a particular order, it would not be appropriate for the Tribunal to do so as to do so would usurp the role of the MHT which has the primary function under s 390 of the (current) MHA of conducting reviews relating to involuntary patients. The applicant must look to the MHT to review the current involuntary inpatient order.
Given the submission made by the applicant through Counsel, and in case the Tribunal was in error in relation to the conclusions set out above, the Tribunal took the view that it was appropriate to consider the submission relating to the applicant’s capacity and to make findings as to the criteria under s 25 of the MHA for involuntary treatment.
The Tribunal held the view that EF continued to satisfy the requirements for the making of an involuntary inpatient order, in particular, that EF had a mental illness requiring treatment; that because of the mental illness there was a significant risk to the health and safety of EF; that EF did not demonstrate the capacity to consent to her treatment and that the treatment could not be reasonably be provided in the community; and there was no less restrictive means by which treatment could be given.
The Tribunal decided that, had it been appropriate for it to make a finding as to whether or not EF met the s 25 criteria, it would have ordered the confirmation of the involuntary inpatient order.
As a consequence, the application was dismissed leaving the involuntary inpatient treatment order in place.

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):

Dunbar v Commissioner of Police [2007] WASAT 90; (2007) 51 SR (WA) 318
LM and Mental Health Review Board [2006] WASAT 123
LS v Mental Health Review Board [2012] WASAT 76
LS v Mental Health Review Board [2013] WASCA 128

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The applicant (EF) is a 22 year old single woman. It is not contested that she suffers from the mental illness anorexia nervosa. The illness is longstanding. She has an extensive history of hospital admissions. After hearing her application on 19 January 2017, the Tribunal dismissed her application and determined that the current involuntary inpatient order made in respect of the applicant remained in effect.
The reasons for the decision follow.
It is to be noted that the applicant's written submissions addressed a number of points of argument regarding the validity of her Community Treatment Order (the CTO) which were not pursued at the hearing given the lapsing of the CTO.

The application

The application, made 8 December 2017, sought a review by the Tribunal of a decision to confirm the applicant's status as an involuntary patient made by the respondent Tribunal on 5 December 2017. The applicant was at the time of that decision the subject of a three month CTO made under the Mental Health Act 2014 (WA) (MHA). In the application, EF seeks an order that she is no longer an involuntary patient.
The matter was heard by the Tribunal on 19 January 2018.
It was common ground that, by the time of the hearing, the CTO had lapsed as the applicant had become an involuntary inpatient. At the hearing the applicant, through her counsel, sought a review of her status as a patient under the involuntary inpatient order. The Tribunal considered that application.

Background

The applicant has had a diagnosis of anorexia nervosa since she was about 11 years old. She has an extensive history of hospital admissions.
The recent history is as follows. Between 4 October 2017 and 9 November 2017 the applicant had a two month long mental health admission to Midland Hospital (MH) under Dr T.
The relevant CTO was made by Dr T on 9 November 2017 (to expire 8 February 2018). Pursuant to the CTO, the applicant was treated out of Midland Community Clinic (under Dr D) as, at that time, the applicant was living in that catchment area.
From 25 November 2017 to 6 December 2017, the applicant was again hospitalised in MH although as a voluntary patient. The CTO remained in place, although its effect was suspended by the operation of s 33 of the MHA, during the period of the admission.
On 5 December 2017, the day before discharge, the Mental Health Tribunal (MHT) conducted a review.
Upon discharge from hospital on 6 December 2017, the applicant was again treated under the extant CTO by Dr D and his psychiatric registrar Dr H.
At some point not long thereafter, the applicant moved out of her parents' home into a share house in the Fremantle catchment. Her care was therefore transferred to the Alma Street Clinic at Fremantle Hospital (with Dr M as the outpatient psychiatrist). It appears that the CTO was amended to reflect this.
In late December 2017, the applicant was referred to Fiona Stanley Hospital on MHA forms by Dr M and on 23 December 2017, was admitted as an involuntary patient on the appropriate inpatient treatment order (made by Dr A and to expire 13 January 2018), initially to the medical ward and thereafter to the psychiatric ward.
She was subsequently transferred to Fremantle Hospital inpatient unit under Dr R where she remained as at the date of the hearing. Her involuntary inpatient status was extended by Dr R on 12 January 2017 (to expire 12 April 2018) (the current involuntary inpatient order).

The hearing

The Tribunal hearing was attended by Dr R and by EF, who both participated by separate telephone links. EF was represented by her lawyer Mr McDonald who asked questions of Dr R and of EF and made submissions on the latter's behalf.

The legislative framework

MHA 2014

Mental illness defined

Section 6 of the MHA states that:
(1)A person has a mental illness if the person has a condition that
(a)is characterised by a disturbance of thought, mood, volition, perception, orientation or memory; and
(b)significantly impairs (temporarily or permanently) the person’s judgment or behaviour.
(2)A person does not have a mental illness merely because one or more of these things apply
(a)the person holds, or refuses or fails to hold, a particular religious, cultural, political or philosophical belief or opinion;
(b)the person engages in, or refuses or fails to engage in, a particular religious, cultural or political activity;
(c)the person is, or is not, a member of a particular religious, cultural or racial group;
(d)the person has, or does not have, a particular political, economic or social status;
(e)the person has a particular sexual preference or orientation;
(f)the person is sexually promiscuous;
(g)the person engages in indecent, immoral or illegal conduct;
(h)the person has an intellectual disability;
(i)the person uses alcohol or other drugs;
(j)the person is involved in, or has been involved in, personal or professional conflict;
(k)the person engages in anti‑social behaviour;
(l)the person has at any time been
(i)provided with treatment; or
(ii)admitted by or detained at a hospital for the purpose of providing the person with treatment.
(3)Subsection (2)(i) does not prevent the serious or permanent physiological, biochemical or psychological effects of the use of alcohol or other drugs from being regarded as an indication that a person has a mental illness.
(4)A decision whether or not a person has a mental illness must be made in accordance with internationally accepted standards prescribed by the regulations for this subsection.

Treatment and treatment decision defined

Section 4 of the MHA defines treatment as:
[T]he provision of a psychiatric, medical, psychological or psychosocial intervention intended (whether alone or in combination with one or more other therapeutic interventions) to alleviate or prevent the deterioration of a mental illness or a condition that is a consequence of a mental illness, and does not include bodily restraint, seclusion or sterilisation[.]
Treatment decision in relation to a person is defined in s 4 of the MHA as:
[A] decision to give consent, or to refuse to give consent, to treatment being provided to the person[.]

Determining capacity to make a treatment decision

Section 18 of the MHA states:
A person has the capacity to make a treatment decision about the provision of treatment to a patient if another person who is performing a function under this Act that requires that other person to determine that capacity is satisfied that the person has the capacity to
(a)understand the things that are required under section 19 to be communicated to the person about the treatment; and
(b)understand the matters involved in making the treatment decision; and
(c)understand the effect of the treatment decision; and
(d)weigh up the factors referred to in paragraphs (a), (b) and (c) for the purpose of making the treatment decision; and
(e)communicate the treatment decision in some way.

Involuntary treatment

In relation to an involuntary patient, s 21 of the MHA states:
(1)An involuntary patient is a person who is under an involuntary treatment order.
(2)An involuntary treatment order is
(a)an inpatient treatment order; or
(b)a community treatment order.
In relation to a CTO, s 23 of the MHA states that:
(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 25 (1), s 25(2) and s 25(3) of the MHA provides that:
(1)A person is in need of an inpatient treatment order only if all of these criteria are satisfied
(a)that the person has a mental illness for which the person is in need of treatment;
(b)that, because of the mental illness, there is
(i)a significant risk to the health or safety of the person or to the safety of another person; or
(ii)a significant risk of serious harm to the person or to another person;
(c)that the person does not demonstrate the capacity required by section 18 to make a treatment decision about the provision of the treatment to himself or herself;
(d)that treatment in the community cannot reasonably be provided to the person;
(e)that the person cannot be adequately provided with treatment in a way that would involve less restriction on the person’s freedom of choice and movement than making an inpatient treatment order.
(2)A person is in need of a community treatment order only if all of these criteria are satisfied
(a)that the person has a mental illness for which the person is in need of treatment;
(b)that, because of the mental illness, there is
(i)a significant risk to the health or safety of the person or to the safety of another person; or
(ii)a significant risk of serious harm to the person or to another person; or
(iii)a significant risk of the person suffering serious physical or mental deterioration;
(c)that the person does not demonstrate the capacity required by section 18 to make a treatment decision about the provision of the treatment to himself or herself;
(d)that treatment in the community can reasonably be provided to the person;
(e)that the person cannot be adequately provided with treatment in a way that would involve less restriction on the person’s freedom of choice and movement than making a community treatment order.
(3)A decision whether or not a person is in need of an inpatient treatment order or a community treatment order must be made having regard to the guidelines published under section 547(1)(a) for that purpose.
Section 33 of the MHA provides that:
Any community treatment order in force in respect of the voluntary inpatient is suspended for the period
(a)beginning when the voluntary inpatient is admitted as an inpatient by the authorised hospital; and
(b)ending when the first of these things occurs
(i)a psychiatrist makes an order under section 55(1)(a) or 56(1)(a)(i);
(ii)the voluntary inpatient is discharged as an inpatient by the authorised hospital.
Section 121 of the MHA provides that:
(1)The supervising psychiatrist may, on or within 7 days before the day on which a treatment period ends, make an order (a continuation order) continuing the community treatment order from the end of the treatment period for the further treatment period (not exceeding 3 months) that is specified in the continuation order.
(2)The supervising psychiatrist cannot make the continuation order without examining the involuntary community patient in accordance with Part 6 Division 3 Subdivision 6.
(3)The continuation order must be in the approved form and must include the following
(a)the date when it is made;
(b)the treatment period for which the community treatment order is continued;
(c)the date when, because of the continuation, the community treatment order will expire;
(d)the reasons for the continuation;
(e)the name, qualifications and signature of the supervising psychiatrist.
(4)The supervising psychiatrist must, as soon as practicable, file the continuation order and give a copy to the involuntary community patient.
(5)The involuntary community patient may request in writing the supervising psychiatrist to obtain the opinion (a further opinion) of another psychiatrist about whether it is appropriate to have continued the community treatment order by making the continuation order (but not whether the length of the treatment period specified in the continuation order is appropriate).
(6)Sections 182 and 184 apply (with the necessary changes) in relation to the further opinion.
(7)The continuation order does not come into force or ceases to be in force, as the case requires, if the further opinion
(a)is not obtained on or within 14 days after the day on which the involuntary community patient’s request is received by the supervising psychiatrist; or
(b)does not confirm that it is appropriate to have continued the community treatment order.
(8)Subsection (7) does not apply if the further opinion is not obtained within the 14‑day period referred to in subsection (7)(a) because the involuntary community patient did not attend an examination to be conducted by the psychiatrist responsible for giving the further opinion.

The role of the Mental Health Tribunal

Relevantly for the Tribunal review, the MHT reviews involuntary treatment orders (which include CTO's) within a defined review period (s 386 of the MHA); upon application by certain prescribed people (s 390 of the MHA) or on its own initiative (s 391 of MHA).
In making a decision on a review in respect of an involuntary patient, the MHT must have regard to the things set out in s 394(1)(a) to (g) of the MHA which provides:
(1)In making a decision on a review under this Division in respect of an involuntary patient, the Tribunal must have regard to these things
(a)if the involuntary patient is a child and the Tribunal is not constituted with a child and adolescent psychiatrist the views of a medical practitioner or mental health practitioner specified in subsection (2);
(b)the involuntary patient’s psychiatric condition;
(c)the involuntary patient’s medical and psychiatric history;
(d)the involuntary patient’s treatment, support and discharge plan;
(e)the involuntary patient’s wishes, to the extent that it is practicable to ascertain those wishes;
(f)the views of any carer, close family member or other personal support person of the involuntary patient;
(g)any other things that the Tribunal considers relevant to making the decision.
The orders and directions that the MHT may make are set out in s 395 of the MHA which state that:
(1)On completing a review under this Division, the Tribunal may make any orders, and give any directions, the Tribunal considers appropriate.
(2)Those orders and directions include the following
(a)an order revoking an involuntary treatment order;
(b)a direction to the psychiatrist named in the order to make, within a reasonable period specified in the direction, a community treatment order in terms that are consistent with section 115 and specified in the direction;
(c)an order varying the terms of a community treatment order in any way that is consistent with section 115.
(3)The Tribunal cannot make an order or give a direction under subsection (1) in relation to an involuntary patient’s treatment, support or discharge plan, but may make
(a)a recommendation that the patient’s psychiatrist review the treatment, support or discharge plan; and
(b)if such a recommendation is made a recommendation about the amendments that could be made to the treatment, support and discharge plan.
(4)The Tribunal may give a copy of any recommendation made under subsection (3) to the Chief Psychiatrist.

The role of the State Administrative Tribunal (Tribunal)

Under s 494 of the MHA, a person in respect of whom the MHT makes a decision or a person who in the opinion of the Tribunal has a sufficient interest in the matter may apply to the Tribunal for a review of the decision of the MHT.
The review jurisdiction of the Tribunal is contained in Div 3 of Pt 3 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) and particularly at s 27 and s 29.
The effects of s 27 and s 29 of the SAT Act are set out in LS v Mental Health Review Board [2013] WASCA 128 at [90] to [98] (LS2).
Relevantly, the matter is heard afresh on the material presented at the hearing and is not dependant on whether or not there was an error by the MHT. The Tribunal is to produce the correct and preferable decision with reference to the time of the Tribunal's decision. Subject to s 29(2) of the SAT Act, the Tribunal must do again what the MHT originally did. Finally, 'it is not open to the Tribunal to exercise some other discretion vested in the [MHT] where a decision in the exercise of that discretion is not the subject of the review'. (LS2) at [98], citing with approval Chaney J in Dunbar v Commissioner of Police[2007] WASAT 90; (2007) 51 SR (WA) 318 at [19].
In LS2, the Full Court dismissed the appeal from Chaney J's decision in LS v Mental Health Review Board [2012] WASAT 76 (LS1).

What is the Tribunal reviewing?

Section 390(1) relevantly provides that an involuntary patient:
… may apply to the [Mental Health]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 referred to 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 referred to 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 … in respect of an involuntary inpatient … or a refusal to transfer;
(e)the transfer … of a psychiatrists responsibility as supervising psychiatrist … or a refusal to transfer that responsibility …;
(f)the transfer … of a responsible practitioner's responsibility as the treating practitioner … or a refusal to transfer that responsibility;
(g)a transfer order .. in respect of a state inpatient … or a refusal to transfer.
This is to be compared with s 142(1) of the previous legislation The Mental Health Act 1996 (WA), (the old Act) which relevantly provided that:
(1)An application may be made to the Board, in writing, for the review of
(a)whether a person should continue to be an involuntary patient; or
(b)whether a person should continue to be detained in an authorised hospital as an involuntary patient; or
(c)whether a person who is detained in an authorised hospital as an involuntary patient should have been, or should be, transferred to another authorised hospital; or
(d)whether
(i)the responsibility for supervising the carrying out of a community treatment order; or
(ii)the responsibility for ensuring that a patient receives the treatment outlined in a community treatment order,
should have been, or should be, transferred; or
(e)any other decision made in relation to a person who is an involuntary patient, other than a decision under this Part.
In the view of the Tribunal, under the old Act, upon review it was the patient's status that was reviewed and not the terms of any particular order.
In LS1, Chaney J referred with approval to the decision of the Tribunal (Deputy President Eckert) in LM and Mental Health Review Board [2006] WASAT 123 (LM). At [23] in LS1 His Honour stated:
[I]n essence, the Tribunal determined that where there had been a replacement or extension of an involuntary order between the Board's determination and the Tribunal's hearing, the Tribunal could review the patients involuntary status regardless of the change in the order provided that the patient had continued as an involuntary patient since the original order was made.”
(Tribunal's emphasis)
As was stated by Eckert DP in LM, at [39]:
… the question before the MHRB when conducting a requested review is whether a patient should continue to be an involuntary patient.… When the Tribunal conducts a review of the MHR these order, it steps into the shoes of the MHRB and asks itself that same question, namely should the applicant continue to be an involuntary patient[.]
Under the (current) MHA with its specifically changed language, in the view of the Tribunal, the section must now be interpreted as meaning that it is the particular order to which the patient is subject that is the subject of review by the Tribunal, not the patient's status under that or any subsequent order.
The order that was before the MHT was the CTO, not the involuntary inpatient order. It is accepted by the applicant that the CTO has been revoked by operation of law. The applicant, through her counsel, seeks to advance the argument that she retains capacity and therefore should not be the subject of any form of involuntary treatment order. An issue before the Tribunal therefore is whether or not it is appropriate for the Tribunal to review the current involuntary inpatient order. It is the view of the Tribunal that it should not do so.
In LS1, Chaney J referred with approval to the decision of the Tribunal (Deputy President Eckert) in LM. At [24] referring to Her Honour decision, His Honour stated:
At [36], the Tribunal expressed the view that caution should be exercised before hearing an application where the order originally the subject of the application had been replaced by a different involuntary order, so as to preserve the primary function of the Board which is required to review all involuntary orders made as required under s 138 of the MH Act[.]
It is instructive to look at the relevant passage in LM at [35 36] in full where Her Honour said:
On this basis, it can therefore be concluded that if the patient's involuntary status continues at the time of the hearing but the identity of the order that confers the status has changed, then the Tribunal should hear the review regardless of the particular order that underlies it. If the correct and preferable decision at the time of the Tribunal's decision is that the patient should not be the subject of an involuntary order, then that should be the decision. This is reinforced by the wording of s 145(2), that the MHRB, after conducting a review, can order that a person is no longer an involuntary patient.
However, the MHRB has the primary function of conducting requested and periodic reviews. If an application for review by the Tribunal is made originally with respect to a CTO, and at the time of hearing the relevant order is for an involuntary detention order, then, although the applicant has continuously remained an involuntary patient, the Tribunal should exercise caution before hearing the application, if to do so would usurp the MHRB's primary review function. In other words, where a patient the subject of (for example) a CTO becomes subject to a detention order, then the MHRB would be required to review that new order under s 138 or s 139 of the MH Act, and that review might not occur prior to the original review matter coming before the Tribunal. In that case, the patient should usually look to the MHRB for the review of the new order. But where the MHRB has conducted its review between the initial application to the Tribunal and the hearing of the application by the Tribunal, then the Tribunal would be reviewing the decision of the MHRB relating to the new order, and in my interpretation of the relevant law for the Tribunal to do that is appropriate.
(Tribunal emphasis)

Conclusions

Firstly, it is the view of the Tribunal that under the (current) MHA, it is the particular order to which the patient is subject that is the subject of review by the Tribunal, not the patient's status under the order. The order that was before the MHT was the CTO, not the involuntary inpatient order. That CTO has now fallen away. It is not therefore possible for the Tribunal to conduct a review of that order.
Secondly, it is not possible for the Tribunal to review the current involuntary inpatient order since that order was not the subject of the original review by the MHT.
Thirdly, in the view of the Tribunal, even if it were possible for the Tribunal to conduct a review of the current involuntary inpatient order by approaching the review on the basis of patient status rather than the terms of a particular order (which, in the view of the Tribunal is not the correct way of approaching the matter given the specific terms of the current MHA), it would not be appropriate for the Tribunal to do so as this would have the effect of usurping the role of the MHT which continues to have the primary function under the MHA of conducting reviews relating to involuntary patients. As was stated by Eckert DP, the applicant must look to the MHT to review the current involuntary inpatient order.
Therefore, following a consideration of the comments of both Buss JA at [17] and Murphy JA at [134] in LS2, the applicant's application is therefore lacking in substance and must be dismissed.
Accordingly, the Tribunal makes the orders which appear at the end of these reasons.

Submissions on the section 25 criteria.

Given the submission made by the applicant through Counsel, and for the information of the applicant, and in case the Tribunal is in error in relation to the conclusions set out above, the Tribunal took the view that it was appropriate to consider the submission relating to the applicant's capacity and to make findings as to the criteria under s 25 of the MHA for involuntary treatment.

The psychiatric evidence

The Tribunal heard Dr A's evidence by telephone and had the benefit of the report from Dr H dated 1 December 2017 that had been provided to the MHT.

Dr A's evidence

Dr A's evidence was that EF is suffering from 'acute anorexia nervosa', which he described as being 'a severe eating disorder' 'in full flight and full operation', and not in remission as the applicant seemed to be suggesting. He described her recent weight lost (nearly nine kilos in a few weeks) as 'huge', and elsewhere as 'massive', and related that at the time of admission, she had had to be admitted as an emergency case to a medical ward.
He expressed the view that that she does not currently have capacity:
… because she seems completely unable to weigh up in a rational way the risks associated with her illness. She minimises them, denies them, says she will be fine if she is discharged, but against all the available evidence … She was only discharged from hospital a few weeks ago and yet she is back in with almost catastrophic weight loss but she isn't able to offer any explanation for this. So I don't think that she is able to. … She says she'll be fine to be discharged but all the evidence is she will continue to have more weight loss if she is discharged … again endangering her life. So I don't think … she is able to weigh these things up rationally.
When asked his clinical opinion about any required treatment, Dr R's evidence was that EF's body mass index (BMI) was about 18. He said '… she needs to be in hospital for at least several weeks so as to increase weight'. As to her current presentation, he said 'she has only just got out of a wheelchair a couple of days ago on the ward… so she's pretty frail' and elsewhere, 'she's very unwell at the moment and to argue she has capacity is not really in touch with the legal or psychiatric realities.'
He confirmed that 'we try and get EF well by a mixture of increasing her weight [by feeding and hydrating] but also trying to give her [through psychological and behavioural approaches] different sorts of ways of coping and operating rather than just trying to change her mind about the fact that it's not a good idea to lose weight.'
In relation to the relevance of target BMI's, he said that the reason for EF having impaired capacity is not just because of low weight. He expressed the view that one could be of normal weight and be anorexic and have impaired capacity if one has an overvalued idea that one is overweight.
When asked whether EF's physical state was having an effect on her capacity to rationalise, he said:
I think definitely. I mean her chronic low weight state definitely affects her brain. … Her brain is in a chronically starved state and there is good evidence that that impairs people's mood and ability to reason. … The essence of anorexia nervosa is that there is a pathological fear of fatness and that's abnormal abnormal beliefs about weight. So that's where the capacity is affected. … There's specific psychopathology of the illness.
When asked about the 'abnormal belief', he described it as 'an overvalued idea that [the person is] overweight and need[s] to maintain a low body weight'.
He said that traditionally in anorexia it was referred to [in psychiatry terms] as 'an overvalued idea' rather than a delusion or a fixed false belief. He distinguished the two by saying that an overvalued idea isn't held with the same conviction as a delusion. When asked if EF's overvalued idea constitutes an abnormal perception, he agreed that it did and said that in relation to EF 'the overvalued idea is that she believes she needs to lose weight. That's the overvalued idea which wouldn't be shared by someone who wasn't suffering from anorexia nervosa.'
He described the circumstances of EF's admission being that when the Alma Street team met her, 'they were struck … that she had lost massive amounts of weight… So they arranged for her to go to hospital. Obviously she was unwell. She couldn't she didn't go straight to a psychiatric ward. She went straight to a medical ward at Fiona Stanley … and she had a [nasogastric] tube and was in a wheelchair … so she was poorly'. When it was put to him that EF has full insight into her condition and what the risks are, Dr R replied 'she appears to be sort of clear in her thinking, but it is a rather nihilistic position which I don't think most people would regard as rational. The fact that she doesn't seem to believe or think or be worried that she will die if she behaves like this in my view shows that her capacity is impaired.'
When it was put to him that although a poor choice, EF's choice was a capable choice, Dr R stated 'well it is a poor choice that's true, but I think it's more than just a poor choice because I think it shows impaired ability to weigh up the pros and cons and my understanding is that that's the definition of impaired capacity. So it's not just a poor choice. There is an actual problem of weighing up the pros and cons of the choice and the reason she's got difficulty weighing up pros and cons is because she is suffering from a specific disease, anorexia nervosa, but also because she is partly starved. So it is a double a double process.'
When asked what it is about the disease that impairs capacity, Dr R confirmed that 'the hallmark of [the] disease is the overvalued idea about weight and weight loss and body image and that's the essence of the disease because you only choose to lose weight because you believe erroneously in anorexia nervosa that you're overweight despite all the evidence to the contrary. I mean, the very fact that people can starve themselves in anorexia nervosa to me demonstrates that these people lack capacity.'
He confirmed that it is the overvalued idea, the erroneous way of looking at the situation, coupled with the consequences of the brain starvation that causes this not to simply be a poor choice but to be an incapable choice because of the contribution of those two factors. For a choice to be simply a poor choice, it shouldn't be driven by a particular medical or psychiatric illness.
He expressed the view that EF 'isn't just making a poor choice in a vacuum, she is making a poor choice in the throes of a very serious psychiatric illness. So I think it's more than just a poor choice. It's a choice that is driven by lack of capacity as well as being a poor choice'.
He described EF's insight as poor given that she was not able to offer to him any explanation for why she had lost nearly 9 kilograms in the last few weeks, that she doesn't accept that this is a serious event and 'that there is no sort of sense that it won't happen again.' In the context of a question about the presence or absence of insight, Dr R expressed the view that 'it's partial insight but it's not really effective insight. … She might accept that she's got anorexia nervosa but if she doesn't do anything about it, it's not very effective insight.'
When asked about her cognition, Dr R confirmed that it was not suggested that EF's memory or attention or concentration is impaired however he said 'one aspect of cognition is ability to make decisions and to weigh up information. … It's the higher decision making that's particularly impaired'.

Dr S's report

In her report of 1 December 2017 to the MHT, Dr H set as follows:
E is a 20 year old single woman who has a longstanding history of anorexia nervosa since the age of eleven years. She has an extensive history of admissions to PMH, SCGH, Hollywood Private Hospital and SJOG Midland Hospital. E lives with her parents and her brother in their family home … and receives a DSP benefit from centre link.
E has been studying … and she has completed one semester of her degree. E is very keen to continue and complete her studies, and to do well in these. It has been a great disappointment to her that her studies have required several deferments due to frequent and significant relapses of her illness. E has expressed her preference to individuate from the home and supervision of her parents, with the latter's support. She currently plans to move into a sharehouse with some friends in the near future, and hopes to return to her … studies in February 2018.
The severity of E's anorexia nervosa is high. Over the years it has been responsive to shortterm inpatient nutritional resuscitation and management, but has proven to be refractory to treatment over the longterm in the community setting. There have been occasions where E's life has been at significant risk due to her BMI becoming extremely low, as a result of her restrictive eating. E was treated for five months as an inpatient at SJOG Midland Hospital earlier this year, with her admission weight measured at 24kg requiring management in the ICU for the first two weeks of the admission.
When E has been an inpatient and/or on a community treatment order, she has demonstrated compliance with most of the CTO directions, such as attending appointments with her treating psychiatrist, GP, dietician and psychologist, for most of the required review intervals. E's breach of the community treatment order has included refusing to have her weight taken and occasionally not attending appointments. On some of these occasions, E has stated a valid reason for not attending and requesting to reschedule appointments, such as to accommodate her … examinations. E has been observed, and has herself disclosed, her excessive use of laxatives. She has also confirmed that she waterloads and/or conceals weights in her undergarments to give a higherthanaccurate measurement of her weight. These avoidant behaviours reinforce the dangerous pattern of her selfinduced starvation, thus increasing her risk of relapse and physical deterioration.
E's insight is partial, in that she accepts and agrees with her diagnosis of anorexia nervosa, and acknowledges that she requires ongoing treatment for this. Her insight is limited by her rigid and perfectionistic psychopathology, and by her evident resistance to gaining weight. She has demonstrated a sophisticated rationalisation and justification of her restrictive behaviours, as well as a minimisation of the extreme severity of her symptoms. E appears to possess an awareness of the seriousness of her illness, yet her insight of this is not sufficiently reconciled by her behaviour praxis. It would seem that E suffers a considerably tortuous internal dilemma, in this regard. Without her treatment being fostered by the parameters of the community treatment order, E's participation in her prescribed treatment would be considerably difficult to maintain integratively [sic] and effectively.

The case presented by EF

EF gave evidence on her own behalf. She acknowledged that she has 'a severe … chronic case of anorexia nervosa'. She acknowledged that the effect of this is that '[the disease] wants her to believe that [she] weigh[s] too much for [her] size.' She knows what the normal BMI range is and conceded that her body at times gets to a much lower BMI because she heavily restricts food intake, uses laxatives, walks more and has trouble with substance abuse.
She talked about her feelings of not being 'in control of [her] life', particularly when in hospital; that she feels that the restrictive hospital regime has in the past made her consciously and deliberately lose weight upon discharge because she feels like she then has some control over her life.
EF stated that she believes that she is now 'healthy' and that 'the point where [she] is at is quite good in [her] opinion' and that she believes she has full capacity; that 'all [her] parameters are within ... reasonable limits'. She acknowledged that she had been unwell and did need hospital admission when admitted, but disagreed with Dr R's opinion that she needs to be in hospital for any longer. She agreed she needs ongoing treatment in the community. She did not seem to agree with comments regarding her current frailty and expressed the view that her recent wheelchair use was just 'part of the compliance requirements'.
Concessions were made by Mr McDonald on behalf of EF that the criteria in s 25(a) and (b) were made out, that is, that the applicant suffers from a mental illness namely anorexia nervosa for which she is in need of treatment, and that, because of the mental illness, there is a significant risk to the health or safety of, or of serious harm to, EF.
The principle issue for determination in the hearing was as to EF's capacity. EF, through Mr McDonald, submitted that the criteria in s 26(c), (d) and (e) are not met, that is, that she has insight into her illness and has capacity to make treatment decisions and that an involuntary order is not needed; further, that an inpatient order is not needed and, indeed, that she can be treated in the community rather than in hospital.

Discussion

The Tribunal is satisfied that EF is in need of an involuntary inpatient order.
The Tribunal finds that EF has a mental illness as defined in s 6 of the MHA and the Tribunal is satisfied that EF is in need of treatment for her mental illness: s 25(2)(a) of the MHA.
She has been diagnosed with anorexia nervosa. That is not disputed by the applicant. At least at face value, EF accepts her diagnosis and the need for treatment. There is no medical evidence before the Tribunal which contradicts the evidence of Dr A and Dr S.
The Tribunal finds that because of EF's mental illness there is currently a significant risk to her health or safety and a significant risk of her suffering serious physical or mental deterioration if not currently treated: s 25(2)(b) of the MHA. This is conceded on EF's behalf. Dr A's evidence supports this conclusion. There is no medical evidence before the Tribunal which contradicts the evidence of Dr A.
At least at face value, EF accepts that without proper treatment, her condition deteriorates and she is at serious, sometimes potentially fatal, risk.
The outstanding feature of EF's mental illness is a persistent overvalued idea about being overweight. Her behaviour and thinking is driven by that idea and it impairs her judgment.
The Tribunal finds that more likely than not that the reason for the deterioration in EF's health from time to time is an exacerbation of the major symptoms of her mental illness and the impaired thinking that is driven by her overvalued idea.
Given the history of EF's circumstances in the context of her chronic mental illness, the Tribunal is satisfied that active treatment by hospitalisation was a reasonable response by the mental health team to the situation that presented in December 2017.
In relation to s 26(c), the Tribunal accepts Dr R's opinion as to EF's incapacity. To the extent that his evidence differs from EF's in this regard, the Tribunal prefers the evidence of Dr R. The Tribunal accepts that EF has lived with her illness for a long time. It is understandable that she would claim to know what is best for her and what is required to manage her illness. It is important that she has input into her own management and that she is heard. However, the Tribunal places considerable weight on Dr R's evidence. He is a trained psychiatrist. He has medical expertise that is relevant. The Tribunal accepts that his opinions are truly and honestly held. He has no reason to speak other than candidly with the Tribunal. The Tribunal accepts that he is motivated only by EF's best interests in giving the evidence that he does. His evidence is corroborated by the report of Dr S. It appears that it is consistent with many other clinicians who have treated EF in the past. There is no contrary medical evidence.
The Tribunal finds that EF does not have capacity to consent to her own treatment and therefore that the criteria in s 26(c) is made out.
In relation to s 26(d) and (e), the Tribunal accepts Dr R's opinion as to EF's current need for inpatient treatment. To the extent that his evidence differs from EF's in this regard, the Tribunal prefers the evidence of Dr R for the reasons referred to above. EF has confirmed that she does not agree she needs inpatient treatment.
Although it is acknowledged that at times previously she has been treated as a voluntary patient, in the view of the Tribunal, at this stage in her recovery, she could not be relied upon to stay in hospital if she were made voluntary.
Mr McDonald submitted that EF is prepared to accept ongoing treatment as an outpatient and that the residents in the share house she occupies are a care worker and a mental health nurse who can support her appropriately in the community as an outpatient. These things may both be true (although the Tribunal makes no specific finding as to that) but, for the reasons given, the Tribunal accepts that outpatient treatment is not appropriate at this time.
The Tribunal notes that when discharged into that same community environment in December 2017, and despite being on a community treatment order, EF's weight dropped rapidly over a short period of time to dangerous levels and urgent hospitalisation to a medical ward was required.
Dr R's evidence is that the current treatment required is to oversee and facilitate EF's eating to increase her weight until she reaches a BMI of 20, along with appropriate psychological and behavioural supports; that, in his clinical opinion, a 'higher bar' needs to be set given the recent relapse after her previous hospitalisation, namely a discharge target BMI of 20 (rather than her previous discharge BMI of 18.5) ; that this is necessary and in her best interests and needs to be achieved as an inpatient.
The Tribunal finds that the criteria in s 26(d) and (e) are met and that the current required treatment cannot reasonably be provided in the community nor is there any less restrictive way of providing the required treatment to EF than as an involuntary inpatient.
In deciding to continue with the involuntary inpatient order notwithstanding EF's stated wish to be treated in the community rather than in hospital, the Tribunal has had regard to the matters set out in s 394 of the MHA and to the guidelines of the chief psychiatrist made under s 547(1)(a) of the MHA. The Tribunal notes the longstanding nature of EF's mental illness, her recent deterioration and the nature of the treatment being given to her, in particular, the purpose behind the current treatment plan.
Accordingly, the Tribunal's determination is that, had it been appropriate for it to make a finding as to whether or not EF met the s 25 criteria, it would have ordered the confirmation of the involuntary inpatient order.

Orders

1.The application is dismissed.
2.The involuntary treatment order is confirmed.
3.Reasons for the decision will be published.

I certify that this and the preceding [88] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS H LESLIE, MEMBER