ET v Northern Territory of Australia (No 2)
[2022] NTSC 94
•23 December 2022
CITATION:ET v Northern Territory of Australia (No 2) [2022] NTSC 94
PARTIES:ET
v
NORTHERN TERRITORY OF AUSTRALIA
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising territory jurisdiction
FILE NO:2022-02049-SC
DELIVERED: 23 December 2022
HEARING DATE: 27 October 2022
JUDGMENT OF: Grant CJ
CATCHWORDS:
MENTAL HEALTH – Community treatment order – Determination
Appeal from decision of the Northern Territory Civil and Administrative Tribunal extending Community Management Order – Grounds of appeal assert error in the form of denial of procedural fairness by Tribunal – No legal, factual or discretionary error demonstrated – Remaining grounds of appeal do not assert error – Appeal dismissed – Decision of the Tribunal affirmed.
Mental Health and Related Services Act 1998 (NT) s 16, s 123, s 141, s 142
Northern Territory Civil and Administrative Tribunal Act 2014 (NT) s 105CH v Mental Health Review Tribunal & Anor [2017] NTSC 43, Hunter v Mental Health Review Tribunal (2017) 327 FLR 402, Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, referred to.
REPRESENTATION:
Counsel:
Appellant:Self-represented
Respondent: T Cramp
Solicitors:
Appellant:Self-represented
Respondent: Solicitor for the Northern Territory
Judgment category classification: B
Judgment ID Number: GRA2205
Number of pages: 11
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINET v Northern Territory of Australia (No 2) [2022] NTSC 94
No. 2022-02049-SC
BETWEEN:
ET
Appellant
AND:
NORTHERN TERRITORY OF AUSTRALIA
Respondent
CORAM: GRANT CJ
REASONS FOR JUDGMENT
(Delivered 23 December 2022)
Introduction
This is an appeal from the extension of a Community Management Order (CMO) on 8 July 2022 by the Northern Territory Civil and Administrative Tribunal (Tribunal) pursuant to s 123(5)(c) of the Mental Health and Related Services Act 1998 (NT) (MHRS Act). For the reasons which follow, the appeal is dismissed and the decision of the Tribunal is affirmed.
Background and nature of appeal
The broader background to the appellant’s circumstances and her prior engagement with medical treatment facilities in the Northern Territory is set out in substantial detail in the reasons for decision in ET v The Northern Territory of Australia [2022] NTSC 53, which involved an unsuccessful appeal against the CMO which had been made in respect of the appellant on 14 January 2022. For a full appreciation of that background and those circumstances, these Reasons should be read in conjunction with the earlier decision.
On 28 June 2022, an authorised psychiatric practitioner made an application to the Tribunal for an extension of the CMO which had been made in January 2022. That application was made in the prescribed Form 15.
The criteria to be applied in determining whether a person may and should be made subject to an order for involuntary treatment or care in the community are stipulated in s 16 MHRS Act, which provides:
16 Involuntary treatment in community
The criteria for the involuntary treatment or care of a person in the community are:
(a)the person has a mental illness; and
(b)as a result of the mental illness:
(i)the person requires treatment or care; and
(ii)without the treatment or care, the person is likely to:
(A)cause serious harm to himself or herself or to someone else; or
(B)suffer serious mental or physical deterioration; and
(iii)the person is not capable of giving informed consent to the treatment or care or has unreasonably refused to consent to the treatment or care; and
(c)the treatment or care is able to be provided by a community management plan that has been prepared and is capable of being implemented.
The Tribunal conducted a hearing of the application on 8 July 2022. The Tribunal was constituted by a legal member, a medical member and a community member. Although the appellant had been represented by a lawyer provided by the Northern Territory Legal Aid Commission at the previous hearing conducted on 14 January 2022, the appellant represented herself during the course of the hearing conducted on 8 July 2022. On the basis of the evidence and submissions received during the course of the hearing, the Tribunal was satisfied that the appellant fulfilled the criteria for involuntary treatment in the community.
As a consequence, the Tribunal extended the CMO the subject of the present appeal for a period of six months. The treatment authorised under the terms of the CMO as previously made, and continued under the extension made on 8 July 2022, was the administration of the second generation antipsychotic Aripiprazole, together with such rehabilitation, psychosocial support and other services as might be accepted by the appellant.
Section 142 of the MHRS Act provides that an appeal may be brought against a decision of the Tribunal with the leave of the Court, and is to be by way of rehearing. In order to succeed on appeal, the appellant must demonstrate the existence of a legal, factual or discretionary error on the part of the Tribunal: see CHv Mental Health Review Tribunal & Anor [2017] NTSC 43, [15]-[32]; Hunter v Mental Health Review Tribunal [2017] NTSC 92; 327 FLR 402 at [3]–[4].
The time for lodging an appeal against the Tribunal’s decision made on 8 July 2022 expired on 5 August 2022. The notice of appeal in this matter was not filed until 18 August 2022. An application for leave to appeal was filed on 14 September 2022. The respondent did not oppose the appellant’s application for an extension of time within which to apply for leave to appeal. The appellant’s proposed Notice of Appeal identifies the following grounds of appeal:
1.The appellant’s submissions made at the hearing were not taken into account by the Tribunal.
2.The Tribunal’s decision was pre-determined.
3.No reasons were given for the decision to extend the CMO.
4.The medication authorised under the order is detrimental to the appellant’s health.
5.The treating medical facility does not comply with the provision for rehabilitation, psychosocial support and other services under the order.
6.The order is restrictive to the appellant.
The appellant has filed affidavits made on 14 and 15 September 2022 which operate as submissions in support of those proposed grounds of appeal. In addition, the appellant made further oral submissions during the course of the hearing conducted on 27 October 2022. I will deal with each of those proposed grounds of appeal in turn.
Failure to take into account the appellant’s submissions
As stated, the application for an extension of the CMO was made by prescribed Form 15, which detailed the basis upon which the application was made. Prior to the commencement of the hearing conducted on 8 July 2022, the appellant filed an annotated copy of that Form 15 which addressed those parts with which she took issue. Those annotations were then supplemented by oral submissions during the course of the hearing. Those annotations and submissions identified the information in the Form 15 which the appellant asserted was incorrect, and addressed the basis on which the appellant contended that she did not satisfy the criteria for involuntary treatment in the community.
The reasons for decision which were subsequently published by the Tribunal (discussed further below) directly addressed the appellant’s submissions that the information contained in the Form 15 was inaccurate; that she did not suffer from a mental illness; that her beliefs were not delusional; that she did not require antipsychotic medication; that the antipsychotic medication caused progressive brain damage, cognitive impairment and loss of function; and that the antipsychotic medication increased the frequency and severity of relapse.
While it is no doubt correct to say that the Tribunal did not accept the appellant’s submissions and contentions, they were clearly taken into account by the Tribunal in making its determination.
Predetermination of decision
The appellant’s contention in this ground of appeal is that it must be inferred that the Tribunal’s decision was predetermined because:
(a)at the conclusion of the hearing the Chairperson stated that the Tribunal was “satisfied that the criteria for a community management order [are] satisfied”, rather than stating that the criteria had been “made apparent here”; and
(b)the CMO was made for the maximum period of six months.
The Tribunal’s statement to the effect that the criteria had been “satisfied” is both unremarkable in this context and consistent with the statutory provision that the Tribunal may make a CMO “if it is satisfied that … the person fulfils the criteria for involuntary treatment or care in the community”: see MHRS Act, s 123(5)(c). The fact that the CMO was made for a period of six months is also unremarkable having regard to the material contained in the Form 15 and the appellant’s medical history.
Quite apart from the matters identified specifically by the appellant under this ground of appeal, I accept the respondent’s submission that a finding in the terms made by the Tribunal was both open and inevitable on the evidence. The expert evidence before the Tribunal was to the effect that the appellant was diagnosed with a schizophrenic condition in 2002; that she continues to manifest delusions consistent with that diagnosis; that she requires treatment with antipsychotic medication; and that without such treatment she is likely to suffer serious mental or physical deterioration and possible brain damage.
The only evidence to any different effect was the appellant’s assertions of opinion in relation to her mental health. During the hearing of this appeal, the appellant sought to supplement those opinions by reference to extracts from various studies concerning the side-effects of antipsychotic medication. Those articles were of uncertain provenance and standing, and were not directed to the appellant’s particular circumstances. The appellant also sought to rely on a letter from a consultant psychiatrist to a general practitioner in Melbourne, both of whom had previously treated her. The letter stated, amongst other things, that the appellant was not showing signs of psychopathology during the course of a teleconference which was conducted on 1 June 2022. That observation has little or no relevance in this context given that the appellant was receiving depot injections of antipsychotic medication at that time. The correspondence also fell short of establishing the appellant’s contention that antipsychotic medication was either an unnecessary treatment modality for her condition or detrimental to her health.
Although there is no doubt that the appellant considers Aripiprazole is detrimental to her functioning, the evidence from the authorised psychiatric practitioner who made the application was that the appellant has poor insight into her condition and does not understand (or, at least, does not accept) why she needs medication.
Failure to give reasons
At the conclusion of the hearing conducted on 8 July 2022, the Tribunal adjourned for a short period of time and then came back to pronounce its decision. As already described above, the Chairperson stated that having regard to the application and the submissions made during the course of the hearing, the Tribunal had determined that the criteria for a community management order had been satisfied. The Chairperson then stated that the CMO was extended for six months and the matter was listed for review on 30 December 2022.
The duty on a statutory body such as the Tribunal to give reasons for decision is governed by statute, and the assessment of the standard required is an exercise in statutory construction: see Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, [43]-[44]. This ground of appeal proceeds on the misapprehension that the Tribunal was obliged to give reasons for its decision by operation of s 105(2) of the Northern Territory Civil and Administrative Tribunal Act 2014 (NT). However, s 141 of the MHRS Act provides expressly that subss 105(2) to (4) of the Northern Territory Civil and Administrative Tribunal Act 2014 do not apply to a decision made by the Tribunal under the MHRS Act.
Even if it is assumed that there was some obligation on the Tribunal to give reasons beyond the finding that the statutory criteria had been satisfied, the Tribunal delivered written Reasons for Decision on 26 September 2022. Those Reasons contain a discussion of the evidence received during the course of the hearing on 8 July 2022, and the statutory criteria to be applied in determining whether a community management order is properly made. The reasons conclude that the Tribunal accepted the evidence of the authorised psychiatric practitioner who had made the application in determining that the statutory criteria were satisfied. Nothing further was required.
Medication detrimental to appellant’s health
The nature of the evidence which was before the Tribunal has already been summarised in dealing with the proposed ground of appeal asserting that the Tribunal’s decision was predetermined. Having regard to the evidence, this ground of appeal must fail.
The treating medical facility does not comply with the provision for rehabilitation, psychosocial support and other services under the CMO
The precise nature of this contention is a little unclear. It would appear to be that when the appellant was housed at an iCare facility she was subject to unnecessary full-time care when that was not a matter provided for under the terms of the CMO. The appellant also asserts that care workers in the facility violated her privacy in relation to the printing of court documents, and ran the air-conditioning in the facility in a manner that was designed to discomfort her.
Even if those matters could be established by evidence to amount to the provision of rehabilitation, psychosocial support or other services on something other than a consensual basis, they would constitute a breach of the terms of the CMO by the treating medical facility. They would not constitute any error on the part of the Tribunal.
The CMO is restrictive to the appellant
Coercive medical intervention is the essence of an order for involuntary treatment or care in the community. Under the management plan which accompanied the application for the CMO, the appellant is only required to present at the designated clinic on a monthly basis for the administration of a depot injection and review. The provision of rehabilitation, psychosocial support and other services is contingent upon the appellant’s willingness to accept those services. Having regard to the content of the management plan, it cannot be said that the CMO is unduly restrictive to the appellant.
Disposition
Leave to appeal will ordinarily be granted only if it is in the interests of justice to do so in all the circumstances of the case. There are no rigid or exhaustive guidelines governing that enquiry. In the present matter, the appellant was asserting both legal and factual errors in the proposed grounds of appeal. The applicant must establish that there is sufficient doubt on the grounds of appeal sought to be raised to justify the grant of leave, and that a substantial injustice would result if the decision is not corrected.
The matter is one of great importance to the appellant. Although the relevant parts of the Tribunal’s determination were not attended by any great doubt, the appellant’s contentions were fully ventilated during the course of this appeal as if leave had been granted. In addition, and as stated at the outset, the respondent did not oppose an extension of time for the appellant to make an application for leave. In those circumstances, there is no purpose or utility in a formal denial of leave.
For the reasons described above, the appeal is dismissed and the decision of the Tribunal made on 8 July 2022 is affirmed.
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