ET v The Northern Territory of Australia
[2022] NTSC 53
•8 July 2022
CITATION:ET v The Northern Territory of Australia [2022] NTSC 53
PARTIES:ET
v
THE NORTHERN TERRITORY OF AUSTRALIA
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: APPEAL from NORTHERN TERRITORY CIVIL AND ADMINISTRATIVE TRIBUNAL
FILE NO:2022-00503-SC
DELIVERED: 8 July 2022
HEARING DATES: 10 June 2022
JUDGMENT OF: Barr J
CATCHWORDS:
APPEALS – HEALTH LAW – MENTAL ILLNESS – Mental Health and Related Services Act 1998 (NT) – Appeal from Northern Territory Civil and Administrative Tribunal – Appellant suffering schizophrenia – Tribunal found the appellant satisfied all requirements for involuntary treatment and care in the community – Community Management Order made – Appeal – Rehearing – Court’s jurisdiction to be exercised for correction of error – Appellant failed to demonstrate legal, factual or discretionary error – Appeal dismissed – Decision of the Tribunal affirmed
Mental Health and Related Services Act 1998, s 16, s 33, s 34, s 45, s 123(5)(c), s 130, s 131, s 142(3), s 143(a)
CH v Mental Health Review Tribunal & Anor [2017] NTSC 43; Hunter v Mental Health Review Tribunal [2017] NTSC 92, 327 FLR 402; JXC v Mental Health Review Tribunal [2018] NTSC 62, followed
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: Bar2208
Number of pages: 21
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINET v The Northern Territory of Australia [2022] NTSC 53
No. 2022-00503-SC
BETWEEN:
ET
Appellant
AND:
NORTHERN TERRITORY OF AUSTRALIA
Respondent
CORAM: BARR J
REASONS FOR JUDGMENT
(Delivered 8 July 2022)
Introduction
The appellant appealed from a decision of the Northern Territory Civil and Administrative Tribunal Tribunal (“the Tribunal”), which made a Community Management Order (“CMO”) in respect of the appellant on 14 January 2022, pursuant to s 123(5)(c) Mental Health and Related Services Act 1998 (“MHRSA”). The Tribunal’s consideration followed the making of an interim CMO on 31 December 2021.
The appeal was brought pursuant to s 142 of the MHRSA, which provides that an appeal is to be by way of rehearing.
The nature of an appeal from the Mental Health Review Tribunal was considered by Hiley J in CHv Mental Health Review Tribunal & Anor,[1] and subsequently affirmed in Hunter v Mental Health Review Tribunal and JXC v Mental Health Review Tribunal.[2] In brief, the Court’s jurisdiction is by way of rehearing, to be exercised for correction of error. The appellant must demonstrate the existence of a legal, factual or discretionary error. The evidence permissibly adduced on appeal is confined to evidence which would assist this Court to determine whether there was any such error.
On 10 June 2022, I made an order that the appeal be dismissed. I found that the appellant had not established error. In my judgment, the Tribunal did not fall into error in being satisfied that the appellant met the criteria for involuntary treatment or care in the community specified in s 16 of the MHRSA. I now provide my reasons.
In a consideration of the Tribunal’s decision, the most relevant statutory provision is s 16 MHRSA, which is as follows:
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.
On 31 December 2021, an authorised psychiatric practitioner made an interim community management order in relation to the appellant, being satisfied that she fulfilled the criteria for involuntary treatment in the community. The interim order was made pursuant to s 45 MHRSA. The specific treatment proposed to be given was the administration of the second generation antipsychotic Aripiprazole, as well as support services.
The Tribunal then reviewed the interim community management order pursuant to s 48 MHRSA. A hearing took place on 14 January 2022. The Tribunal comprised a legal member, a medical member and a community member. The appellant was represented by a lawyer provided by the Northern Territory Legal Aid Commission.
A document described as a Form 15, headed “Clinical Details and Management Plan re Community Management Order” was before the Tribunal. Because the appellant contends, on appeal, that the Form 15 relied upon was “largely false”, it is appropriate to set out in full Part A of the document below. The abbreviations ‘ASH’ and ‘TCH’ are references to the Alice Springs Hospital and Tennant Creek Hospital:
PART A
Clinical Details
Overview of client’s presentation (profile, succinct description of referral, date of referral, assessment and progress since treatment): ET is a 47 year old with schizophrenia, diagnoses in 2002, with multiple admissions in Australia and overseas.
ET was referred to ASH MHU [Mental Health Unit] following an admission to TCH (21-23 November) – after being brought in by police after being removed from her accommodation. In TCH she expressed bizarre and persecutory delusions of control – believing her doctors had been “sim-carded” by an entity called “Zebedi Motherfucker”, believing foods in hospital to have been poisoned by substances that elicit within her a delusional state. Initially her behaviour was only mildly intrusive but escalating to aggressive, demanding and confrontational with staff.
She was admitted to ASH MHU involuntarily from 23-26 November. On assessment, she was found to have a psychotic relapse of schizophrenia. Please see section pertaining to consent for treatment regarding treatment and progress. On discharge, ET was noted to have psychomotor agitation, inappropriately litigious and volatile in behaviour, highly paranoid and illogical in thought, with impaired insight and judgement.
ET had a subsequent admission to TCH, where she was found to have herpes opthalmicus – a condition which can result in blindness. ET refused all medical intervention during her 9 days stay at TCH (5-14 December). ET refused anti-viral medications, stating that “anti-virals will not help [her] condition” as this was due to “CSF leaking”. She was found to have persecutory delusions, including
-Stating, “as a doctor, chiropractor and healer”, she would be able to cure her condition on her own
-Stated “[she is] worth 81 billion dollars” and that her health has ramifications on unrelated world-events e.g. the assault in Darwin and her admission to hospital directly led to the Northern Territory COVID-19 outbreak, and that it is of utmost importance that she be allowed space to heal herself.
-Exclaimed that “[she is] God and Psychiatry is the Devil”
-Holds a fixed false belief that she is of Aboriginal heritage, and a Nangkari, and is able to fix all ailments through spirit.[3]
-Themes of persecution – that an entity/?person named “Zebedi” was directly trying to undermine her
ET was then transferred back to ASH mental health unit. She was delusional on assessment on admission, in a similar nature to above presentations. ET has been offered choice of three antipsychotic medications that can be administered as LAI.[4]
-Aripiprazole (reportedly well tolerated in the past);
-Paliperidone (reportedly ceased in past due to hormonal side effects);
-Zuclopenthixol.
The treating team recommended Aripiprazole as having the lowest side effect profile, and history of pervious use. ET initially declined to discuss this, wanting to wait until after the mental health tribunal (for extension of her involuntary admission). After this was granted she elected aripiprazole of those options, however she maintained her belief that while she has schizophrenia, her preference is to ‘work through the psychosis’ within her own consciousness.
ET understood the terms of the CMO and it requiring monthly injection, but hoped this would be rejected by the tribunal due to concerns of ‘turning vegetative due to medications’.
ET discharged against medical advice (recommended to assist with accommodation insecurity issues) and declined follow up in post discharge clinic.
Evidence that client meets the criteria set out in Section 16 of the Mental Health and Related Services Act 2007:
The client has a mental illness
Yes
As a result of the mental illness the client requires treatment
Yes
Without treatment the client will be a risk to himself/herself or someone else
Yes
Without treatment the client will suffer serious physical or mental deterioration in health
Yes
The client is not capable of giving informed consent or has unreasonably refused to consent to the treatment or care
Yes
Treatment or care can be provided in a community management plan that has been prepared
Yes
This plan is able to be implemented
Yes
Evidence that the client has a mental illness (include provisional or final diagnosis):
ET has a diagnosis of schizophrenia, diagnosed in 2002. Her last two admissions were for psychotic episodes due to schizophrenia.
On review in Tennant Creek Hospital, ET was grandiose and expressing persecutory delusions, emerging most prominently when agitated. ET stated “[she is] worth 81 billion dollars” and that her health has ramifications on unrelated world events e.g. the assault in Darwin and her admission to hospital directly led to the Northern Territory COVID-19 outbreak, and that it is of utmost importance that she be allowed space to heal herself. Exclaimed that “[she is] God and Psychiatry is the Devil”.ET holds a fixed false belief that she is of Aboriginal heritage, and a Nangkari (traditional healer), and is able to fix all ailments through spirit.
Evidence that the client requires treatment: Current evidence is that ongoing untreated psychosis causes progressive brain damage, cognitive impairment and loss of function which may be irreversible. Antipsychotic medication is neuroprotective, reduces symptoms during psychotic episodes and reduces the frequency and severity of relapse.
Evidence that the client is likely to cause serious harm to himself/herself or someone else:
OR
Evidence that the client is likely to suffer serious mental or physical deterioration:
ET was living at a caravan park in Tennant Creek. She was taken to Tennant Creek Hospital (TCH) after being evicted from the park, allegedly for non-payment of rent.
She was found to be trespassing on Catholic Care NT property. ET continues to be a vulnerable person in the community secondary to her lack of insight and irrational behaviour.
During her stay at TCH, she repeatedly refused input from Medical, Social Work, and Mental Health teams.During admission to Alice Springs she largely disagreed with the treating team’s medical recommendations (psychiatric and medical), stating that she had a ‘higher standard’ for medical treatment than what was available, and remained focused on legal action towards the medical team, as well as her sister for not agreeing to pay her rental bond.
Evidence that the client is not capable of giving informed consent to treatment or has unreasonably refused to consent to treatment;
ET has been non-adherent with medication in the past.
ET refused all medical intervention during her 9 days stay at TCH (5-14 December) (including treatment for Herpes Opthalmicus despite the concern by medical staff that it could potentially harm her vision).
ET has been prescribed different anti-psychotics. During her initial psychiatric admission to ASH (22-26 November), she agreed to a trial of oral lurasidone, was advised to remain in hospital while trying this medication, but discharged herself against medical advice stating that she would take the tablets at home and come back to hospital if she had any side effects. ET was informed that in the event of a voluntary treatment trial with oral medication proving unsuccessful due to non-adherence, the treating team would need to consider involuntary treatment with a long acting injection of antipsychotic medication. ET reports never starting this medication in the community, and has stated during the current admission that she is never going to take antipsychotic medication as she believes ‘psychiatric medications are used to supress consciousness’.
On discharge from her last admission (14-31 December – ASH MHU), ET reiterated that the aripiprazole is not required and harmful for her, and rather she will treat herself using alternative supplements self-obtained from ‘iherb.com’ (US based); lithium oretate and phosphdylcholine.[5] She was made aware the team had concerns these medications may interact with medications prescribed or adversely affect her mental health.
Relevant past medical and psychiatric history:
Overview of Past Psychiatry history:
Schizophrenia diagnosed in 2002
2 admissions in England, 6 months duration
2 admissions to Sunshine Hospital in 2011 and 2013
No contact with public mental health services between 2013 and 2019 – treatment with private psychiatrist Dr Conin in Victoria,[6] with oral medications: 600mg amisulpride, 120mg ziprasidone, 400mg quetiapine, 25mg olanzapine
4 x inpatient admissions in 2019Paliperidone depot (dose not mentioned) trialled April 2019 during admission to the Alfred – ceased at St Vincent’s due to galactorrhea and prolactin.
ET then commenced on long acting injectable Aripiprazole 400mg 4 weekly, self-ceased earlier this year before travelling to the Northern Territory. Admission to ASH MHU 23/11/21, commenced on oral lurasidone 40mg (planned for increase to 80mg in a week if tolerated). Non-adherent. Lurasidone chosen by ET as preferred option.
Current social circumstances: ET refuses any contact with family from the treating team.[7] During her admission she largely refused to contact any family herself – although later in the admission called her sister.
ET has an NDIS package.
In her written submissions to the Tribunal, the appellant contested and/or provided explanations for many of the matters set out in the Form 15. She submitted that the examples given in the Form 15 of delusional or paranoid ideas suffered by her were “often out of context, incorrect in accuracy, conflated and usually just a difference of opinion and world view”.[8] In relation to her psychiatric history, the appellant acknowledged that she had suffered psychotic illness, albeit with qualifications:[9]
I believe I have suffered mild psychosis made worse by the suppressing effects of antipsychotic medication. I know I can work through these issues and intend to do so. A large part of this work comes from avoiding or negating abusers. I was abused by my biological family with psychiatric treatment …
I feel I am being called delusional for difference of opinion, paranoid for confidence in my opinion and psychotic for slight disharmony while healing from an abused life …
I don’t feel antipsychotic medication can help as I don’t aspire to the homogenous thought pattern that is most psychiatrists’ world view. Their opinions should not sit over mine, particularly when it is my health at stake in reference to use of antipsychotic medication. I’ve trialled them for 20 years and don’t feel they help …
I find psychiatry an abusive system that needs healing. Treatment generally ends with no cure, an approach I disagree with as a doctor of chiropractic myself. It lacks the holism where all win.
The teams kick you when you are down.
In her written submissions to the Tribunal, the appellant put forward a 12 point plan as follows:[10]
What I need and intend to do to continue to heal
1. Come off medication that does not help. Physically I cannot cope with it and I would like to balance my natural mental state.
2. Eat well and take advised supplements.
3. Stable housing, to come.
4. Find therapists in my medical philosophy who will support my work as doctor of myself.
5. NDIA has helped and continue to do so.
6. Minimise technology. Time in the NT without it was most comfortable allowing me to vent issues accumulated.
7. Avoid accumulating issues, avoid abusive people. Confront these people and negate their behaviour through court action.
8. Balance life work and play. Time at BP has been wonderful.
9. Work through my notes and files – FOI requests are in after a run around at ASH.
10. Be with a supportive partner. Shifting partners every few days when in the NT was something that is new to me and detrimental to my health when not supportive, or in fact the opposite.
11. Live in TC – a nice size for me and strong aboriginal spirit that I was quite swept away with on first arrival.
12. Constantly rest and reflect.
In addition to the 12 points, the appellant proposed that she would “gently cease medications under the guidance of a good GP I am yet to find”. She continued as follows:
Should we feel I need anti-psychotics then I would take them but only a low dose and definitely not depot which would not be needed and debilitates to a much larger degree.
It is not necessary to fully summarise the proceedings before the Tribunal. However, I extract below part of the evidence given by Dr Emily Highman, inpatient Registrar, who was described as the appellant’s treating doctor:[11]
I do think that ET needs at least six months of anti-psychotic treatment. I don’t think she is going to be compliant on oral medications. I think it needs to be a depot. I think that is going to protect her brain from deterioration from psychosis and neurocognitive damage [that] untreated schizophrenia can result in. … I think she needs at least a monthly review from a mental health service and possibly a psychiatrist. And she needs [treatment] with the antipsychotics. And it can’t just be when she is symptomatic, that’s got to be ongoing for six months and then have a review at that point. I think we understand that ET really doesn’t want to be on antipsychotics and I understand it’s really frustrating for her, but what I would just encourage her to consider is this: “We need to treat. You have been unwell enough to come into hospital four times in the last few months, and presented as unwell with schizophrenia from all of those. So it warrants a period of sustained treatment. And then, if you stay well, ongoing discussions, if you don’t like your medications, please discuss it with your treating psychiatrist”.
The appellant was legally represented before the Tribunal by a lawyer provided by the Northern Territory Legal Aid Commission. His closing submission to the Tribunal was as follows:[12]
ET is a very conscientious 45 year old woman who has recently moved from Victoria to Northern Territory. She’s been to the Northern Territory prior to moving, and decided to settle in Tennant Creek where I suppose you could say she found her tribe, particularly amongst Tennant Creek’s Aboriginal community, with customs in the way she identifies strongly with. ET has instructed she is a trained chiropractor and has professional beliefs that the body should be allowed to heal itself and that medication should very much be of a last resort, and by the choice of a patient. And she has developed a very detailed 12 point, 13 point treatment plan in accordance with those beliefs.
[Inaudible] criteria, the Tribunal must be satisfied of, before making an order for a CMO … first of all treatment, and the second criteria is that, as a result of the mental illness, the person requires treatment that is available at an approved treatment facility. ET agrees that she has suffered a psychosis, but disagrees for the treatment proposed. And as I said, there is a 13-point treatment plan in her report which includes consulting with therapists in her medical philosophy in Tennant Creek, for example, practitioners in [inaudible] medicine. With the treatment plan in place for physical health, for example, eating well and taking over-the-counter supplements available for sale here in Australia, as well as supports including for housing, community and partner, very much they are the supports. And it is very much a holistic approach that is adopted rather than a pharmacological/medical approach. ET seeks to come off the medication, but not cold turkey, with the guidance of a GP and/or psychiatrist, and if seen fit will continue to take the medication but not by depot. And of course the over-the-counter supplements were, she instructs, previously recommended by her psychiatrist in Victoria that she consulted with after moving to the Northern Territory.
…
ET has described numerous symptoms as a result of the aripiprazole depot, which are continuing to this day. We submit that these exacerbate her pain and suffering rather than lessening it, and therefore it does meet the definition of treatment for the purpose of section 4.
…
We submit that involuntary treatment is not lessening the effects of her symptoms but rather exacerbating them, in particular with the psychiatric services triggering her memory as a child, sexual abuse by her father.
[In relation to] Capacity, that’s the fourth of the criteria, and that is that a person is not capable of giving informed consent to the treatment, or has recently refused consent, so point in time assessment. So it’s as of today that the Tribunal must be satisfied of capacity. Again, she acknowledges that she suffered psychosis. She has a history of admissions in inpatient units and also in community where she has voluntarily taken antipsychotic medication. She knows its effectiveness and its side effects.
…
She has a history of consenting to psychiatric medication, antipsychotic medication for much of her life, that is 18 years, and in the coming off of the medication most recently she states that she took the advice of Dr Corcos. And to continue with Dr Corcos and/or a GP in Tennant Creek for a phased withdrawal of medication rather than, of course, going cold turkey. And so on this basis we submit that ET is in fact capable of understanding her treatment, but notwithstanding does not wish to take it.
In respect of deterioration of mental health, the test is that as a result of the mental illness without treatment she is likely to suffer serious mental or physical deterioration. [She has] employment now in Tennant Creek which last week was about 35 hours, as well as NDIA accommodation, a plan which she self-managed and advocated, with the plan providing for psychology, technology and bedding (?) amongst other things. … I understand the NDIA is now considering including supports to maintain work, accommodation, and connecting with community.
… So with these supports in community that are now in place, they do reduce the likelihood of serious deterioration. Whilst not preventing future relapses, they do reduce the likelihood of serious deterioration.
Finally, in terms of least restrictive, the fifth criteria … we submit that the least restrictive means is that proposed by ET, the treatment plan that provides strong social supports ... for example, a number of supplements but also for coming off the antipsychotic medication without going cold turkey.
The Tribunal must consider section 3 of the Act, which states that the objects of the Act include to establish provisions for the care, treatment and protection of people with mental illness that are consistent with the Australian Health Ministers’ Mental Health Statement of Rights and Responsibilities … Paragraph 19 of that states that [inaudible] have the right to have their social, cultural background and spiritual preferences taken into consideration in their treatment support and care, and to be referred to alternative complementary services … .
[Counsel then referred to s 9 MHRSA, then s 8 MHRSA, before continuing]
ET is highly engaged in her treatment, as the development of the plan shows, and the treatment team’s plan has not considered this plan, and so has failed to adequately promote and assist self-reliance or to preserve and enhance her personal autonomy.
ET is a chiropractor, and currently has … a firm belief in holistic medicines. Her personal beliefs may be out of step with mainstream psychiatric opinion, but that alone cannot be a basis for making a CMO. [ET’s] treatment plan, we submit, takes her social cultural background and spiritual preferences into consideration, [and] provides also for a referral to alternative complementary services, as she wishes. In short, we submit that there is a least restrictive means of ensuring she receives the treatment, less restrictive than that proposed by the treating team, that was proposed by ET.
The presiding member gave Dr Highman the opportunity to make a statement in response to the appellant’s submissions, set out in the previous paragraph. Dr Highman pointed out that it was clearly documented in the Tennant Creek Hospital file that ET had refused all medical treatment. Dr Highman referred to the appellant’s lack of insight into her need for treatment, which led Dr Highman to conclude that ET did not have capacity properly to consent to treatment. [I would add that it also evidence of unreasonable refusal to consent to treatment]. Dr Highman repeated her earlier recommendation that the appellant have ongoing treatment with antipsychotics for a period of time.[13] She also made a suggestion in relation to the sexual assault alleged by the appellant and encouraged her to speak to a counsellor in the Barkly Mental Health Team.
In the course of announcing the Tribunal’s decision, the presiding member made the following statement:[14]
We have given careful consideration to the content of the [Form 15] report.[15] We have also given careful consideration to ET’s written submissions and referral to those written submissions by her legal counsel. We have also given careful weight to legal counsel’s submissions as to the criteria.
Given all the above and listening carefully to what ET herself had to say, we are satisfied that the Community Management Order is appropriate. We believe that ET does meet all the criteria required to implement the CMO. In particular, we have concerns about ET’s capacity to accept the seriousness of the illness and that she does demonstrate significant lack of insight into what the illness is and the need to receive treatment to get her better. And that the alternative plan itself, based on the medical advice provided, is not adequate to ensure that her best interests are met in looking after her health. So for all those reasons, the Community Management Order is granted for a period of six months, review date of 8 July 2022. Having regard to the management plan, we do require that ET be reviewed monthly, at least by her case worker in the mental health team at Tennant Creek and that she is reviewed at least three monthly by a psychiatrist.
After the Tribunal’s decision had been announced, the appellant spoke and reminded the Tribunal of her view that a lot of the information in the Form 15 was incorrect. She said, “The paragraphs have been sentences put together from different situations and merged in a way to imply something that did not happen”. She invited the Tribunal to reconsider, which it declined to do. The presiding member responded:[16]
We’re satisfied that the Community Management Order is appropriate, given the overall presentation from both the doctor, yourself and your legal representative today. …
We have taken into account the report. We have taken into account what you said. We have taken into account what your legal representative has said. And we have taken into account the summary provided by Dr Highman, and also the further input that she’s given today by oral presentation. Taking all that into account, we are satisfied that the criteria are met and that the Community Management Order is required.
If you want to take the matter up with your legal representative for further review, that is a matter for you. But for today, the proceedings are at an end. The Management Order has been granted.
The Tribunal’s brief statement of reasons for decision in [15] and the further statement of reasons provided to the appellant are self-explanatory. It is apparent from the remarks of the presiding member that the Tribunal accepted the evidence of Dr Highman, including that part of her evidence extracted in [12] above.
Before turning to consider the content of the Community Management Order, I extract below the Management Plan, which was Part B of the Form 15, following the ‘Clinical Details’ part of the form set out in [8] above:
PART B
Management plan
Residential address of the person to whom the order relates: NFA, Tennant Creek, NT
□ The treatment will occur at the person’s residence.
□ The treatment will not occur at the person’s residence, but will occur at Tennant Creek Community Mental Health or Tenant Creek Hospital (as per ET’s preference). May change to include ET’s residence if her preferences change.
The frequency at which a person treating or caring for the above person must attend the person’s residence and/or at which the person must attend the location identified at which treatment is to occur:
Monthly for administration of depot and review – unless otherwise specified/reviewed depot regime.
Name of the Approved Treatment Agency that is to supervise and review the Order: Barkly Mental Health
Name of the Approved treatment Agency that is to implement the Order: Barkly Mental Health Team
Organisation or persons (other than the Approved Treatment Agency) treating or caring for the person under the Order: Nicole Lilliburn/ Mr Charles Burnham/ Case manager as otherwise appointed.
Medication or treatment the person is to receive under the order: Aripiprazole 400mg every 28 days – next due 14 January; unless otherwise determined by treating team.
Rehabilitation, support and other services this person is to receive under the Order: Accommodation support, return to work support.
Any other relevant information;
Signature of Authorised Psychiatric Practitioner:
[Signed] Date11/1/22
Grounds of appeal
The grounds of appeal relied on by the appellant are set out in her affidavit promised 22 February 2022, as follows: [17]
Ground 1: Form 15 relied upon in hearing was largely false.
Ground 2: The reason for being involuntary leading to CMO unfair and unethical including and not limited to abuse and stalking behaviour.
Ground 3: Reason for remaining on CMO unable to be given during management. No management plan formulated or in process.
Ground 4: Management not in appellant’s best interest.
The appellant represented herself on the hearing of her appeal. In her oral submissions, she raised a concern that a member of the Tribunal had made contact with her caseworker:[18]
Well, there is a submission by myself that a member of the actual Tribunal, possibly, probably, a psychiatric member, calling my case manager, pre-Tribunal, to determine a course of action. That is my submission.
The appellant informed the court that she only found out about the asserted contact after the hearing.
Because of its potential significance, I asked the appellant to provide the documentary source of the information. She had some difficulty in identifying the relevant document but it appeared that an officer of the Tribunal had made contact with her caseworker (Nicole). However, that officer was not one of the members of the Tribunal who decided the appellant’s matter. The appellant appeared to then accept that the contact had been in the nature of an administrative contact, and that the particular officer had not even been present at the hearing.
The appellant continued her submissions, and addressed counsel for the respondent, requesting an example of her symptoms of grandiosity and delusion. The following exchange then took place:
HIS HONOUR: ….are you saying there are no examples of grandiosity in your Form 15? Because I remember reading quite a number of them.
ET: I would say, at a push, I exaggerate. I would say – I would love some examples to be heard, if you could pick some?
HIS HONOUR: Well, if I could take you to page 5 of the Appeal Book, you claim there, as a doctor, chiropractor and healer, you would be able to cure your condition on your own. That’s a grandiose statement.
ET: It is quite grand, but it’s actually natural healing. I would like to ask, what is the progression of herpes opthalmicus, if it is not treated with anti-virals? Is it definitive blindness?
HIS HONOUR: Well, no. Are you claiming to be doctor?
ET: I am a doctor in chiropractic.
HIS HONOUR: Yes. So, you’re not a medical practitioner ---
ET: I’m not a bio-medical model which uses pharmacy.
HIS HONOUR: The next statement is that you are worth 81 billion dollars.
ET: Actually, 88.9 billion, and I apologise, it’s such a large figure to most. I’m sorry it’s un-understandable (sic) to many, but it does not make it false. It may not be proven, but it cannot be disproven, unless you’re looking at the bank balance, influenced by exclusion of spirit.
People find it unbelievable because of my situation, which is one from abuse from birth, including poisoning by the biological family from a young age, which continued into adulthood, at the start especially, of psychiatric treatment. So that’s ---
HIS HONOUR: Well I’ve just given you a couple of examples of what psychiatrists call ‘grandiosity’, and you apparently persist with your self-worth assessment, except you tell me that it’s 88.9 billion dollars, not 81.
ET: They always misquote it, for some reason. I didn’t use to put the .9. I used to say 88.
HIS HONOUR: Well, could I just suggest this to you? That is an even more grandiose statement, because it’s 8.9 – sorry, 7.9 billion dollars more than you said before. So, you were ---
ET: Than who said before?
HIS HONOUR: No ---
ET: 88.9. I used to just say 88 billion.
HIS HONOUR: Yes. You previously said, or are recorded as saying, 81 billion dollars.
ET: They record wrong. I’ve told you this all the time. All the points are wrong ---
HIS HONOUR: And you ---
ET: --- and I told NTCAT that in the tribunal. It is wrong. It has been misquoted. You can quote me on this one in the transcript. They have chopped sentences here and there. They have used inaccurate ---
HIS HONOUR: All right.
ET: --- key words, and ---
HIS HONOUR: But you want to correct that and ---
ET: --- and it is provocative. I corrected it. I’m sure I corrected it. The confirmation of my worth, with the .9, came through (inaudible) later. I’m not sure it’s corrected in my affidavit. I’m happy to submit another affidavit, if necessary.
HIS HONOUR: All right. In any event, I’ve given you an example of --
ET: What they consider ---
HIS HONOUR: --- grandiosity. That is what psychiatrists refer to, grandiosity; people who say things like that.
ET: I appreciate that, perhaps, how it’s said could affect them, or that it’s something they can’t grasp at, something outside of their understanding.
HIS HONOUR: Yes.
ET: It is too much for them; and, hence, I have a problem; and, hence, I must medicate. But, I say, if you cannot prove or disprove it, don’t touch me with it. You are provoking me. I am never touching you.
HIS HONOUR: Yes.
ET: And please don’t provoke me, misquote me, and then medicate me.
But I’ll move on
HIS HONOUR: Yes, thank you.
The appellant next sought to explain the concessions made by her legal representative in the Tribunal hearing, that “ET agrees that she has suffered a psychosis, but disagrees for the treatment proposed”,[19] and, “She acknowledges that she suffered psychosis. She has a history of admissions to inpatient units.”[20] The appellant made the following submission:
I have explained my psychosis to the court, I believe. Sexual abuse and poisoning, and whole biological family from a young age, in a secluded setting where everything is monitored, continuously, certainly opens you up for abuse, and abuse can result in psychosis.
My form of psychosis was a despondency that occurred when I woke up very quickly after meeting my partner. Waking up quickly was hurtful, at what I saw around me, and I guess that is the form of psychosis that I agree happened to me, rather than being grandiose.
I believe it is manageable and, given more, I will manage because I do need to heal and open up and wake up a little more, as you can probably see in this court, from the way I present. I have a right, as a diverse being who is not harmful to anyone, to heal as optimally as possible and within my philosophies.
It should be noted that the concessions made by the appellant’s legal representative before the Tribunal were not unequivocal concessions that the appellant was suffering psychosis at the time of the hearing, or that she had been suffering psychosis at the time of her recent involuntary admission to the Alice Springs Hospital Mental Health Unit in late November 2021. In context, the concessions may have been in relation to historical episodes, that is, in relation to some unspecified time in the past. The principle in Metwally v University of Wollongong,[21] relied on by counsel for the respondent, that a party is bound by the conduct of his or her case in the court or tribunal at first instance, is not necessarily enlivened to prevent the appellant from arguing that she does not and did not at the time of recent assessment suffer psychosis. However, the issue is of minimal relevance, because the Tribunal’s decision did not rely on any admission or concession made by the appellant. No doubt the appellant’s counsel’s oral submissions were taken into account in relation to the s 16 MHRSA criteria, but the Tribunal’s decision was based substantially if not entirely on the evidence in relation to the appellant’s recent medical history and the opinions of Dr Highman.
Conclusions
With respect to the first ground of appeal, the appellant failed to demonstrate that the Form 15 was “largely false”, or even that it contained any material inaccuracy or factual error.
Ground 2 of appeal did not assert error on the part of the Tribunal. It made allegations of unfair and unethical behaviour, on the part of unnamed individuals (including alleged abuse and stalking behaviour), in relation to the appellant’s involuntary admission under the interim community management order, in late November 2021. The allegations were not ventilated before the Tribunal.
Ground 3 of appeal similarly did not assert error on the part of the Tribunal. It appears to be a criticism of the appellant’s management under the proposed Management Plan reproduced in [18], incorporated as varied by the Tribunal into the CMO dated 14 January 2022, to include monthly reviews by the treating team/caseworker and a three-monthly review by psychiatrist. The alleged deficiencies in management, if any, post-dated the Tribunal’s decision. The ground could not be maintained as a ground of appeal.
Ground 4 of appeal, which asserted that management under the CMO was not in the appellant’s best interests, was rejected by me. The Tribunal was fully entitled to accept the expert evidence of Dr Highman, particularly in circumstances where the statements and/or submissions made by or behalf of the appellant by her legal representative were unsupported by medical evidence.
After dismissing the appeal on 10 June 2022, I affirmed the decision of the Tribunal. I was satisfied that the Tribunal did not fall into error – legal, factual or discretionary – in being satisfied that the appellant met the criteria specified in s 16 MHRSA for involuntary treatment or care in the community.
--------------------
[1] CHv Mental Health Review Tribunal & Anor [2017] NTSC 43, at [15] – [32]; reported as Hunter v Mental Health Review Tribunal and anor (2017) 320 FLR 417.
[2] Hunter v Mental Health Review Tribunal [2017] NTSC 92; 327 FLR 402 at [3]–[4]; JXC v Mental Health Review Tribunal [2018] NTSC 62 at [4].
[3] Ngangkari are the traditional healers of the Ngaanyatjarra, Pitjantjatjara and Yankunytjatjara (NPY) lands in the remote western desert of Central Australia.
[4] ‘LAI’ refers to long-acting injectable antipsychotics.
[5] This was probably a misspelling of Phosphatidylcholine.
[6] The intended reference was probably to Dr Christopher Corcos, consultant psychiatrist, Hawthorn, Victoria.
[7] I understood this to mean that ET refused to have the treating team contact her family.
[8] AB p.88, par 4.
[9]Extracts are from AB pp. 90, 91 and 93.
[10] AB 93-94.
[11] Evidence Dr Emily Highman, Transcript p 16, lines 369 to 378 [AB 34].
[12]AB 53-57.
[13] AB 60, line 1045-1047.
[14] AB 62.
[15] This was probably a reference to the Form 15.
[16]AB 64.
[17] AB 69.
[18] Transcript 10 June 2022, from 2:18 PM, page 4.5.
[19]AB 53, lines 860-861.
[20] AB 55, lines 895-896.
[21] Metwally v University of Wollongong (1985) 60 ALR 58 at 71.40.
4
1