Gary William Bratherton No. Dcaat-96-150 Judgment No. D3559

[1997] SADC 3559

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Reasons For Decision of His Honour the Chief Judge, Assessor Dahl and Assessor Rofe

Hearing

10/02/97.

Catchwords

Application, pursuant to section 67 of the Guardianship &; Administrative Act 1993, for leave to appeal against a community treatment order made by the Guardianship Board pursuant to section 20 of the Mental Health Act 1993. Tribunal considered that the proceedings before the Guardianship Board were basically flawed - the issues raised by the proceedings before the Board were not properly put to the appellant - the requirements of section 20 as to the making of a community treatment order were not met. Leave to appeal granted and order appealed against quashed.

Materials Considered

• Guardianship &; Administration Act 1993 s67;
• Mental Health Act 1993s20, referred to.

Representation

Appellant GARY WILLIAM BRATHERTON:
Counsel: MR J SWANSON - Solicitors: SWANSON &; CO

Respondent GUARDIANSHIP BOARD:
Counsel: MS PAROUCHAIS - Solicitors: CROWN SOLICITOR

DCAAT-96-150

Judgment No. D3559

5 March 1997

On Appeal from GUARDIANSHIP BOARD

In The Matter of THE GUARDIANSHIP &; ADMINISTRATION ACT 1993

(Administrative Appeals)

IN THE MATTER OF THE GUARDIANSHIP & ADMINISTRATION ACT 1993

GARY WILLIAM BRATHERTON

Administrative Appeals

Chief Judge, Assessor Dahl and Assessor Rofe

This is an application pursuant to section 67 of the Guardianship & Administration Act 1993 for leave to appeal against a community treatment order made on 5 November 1996 by the Guardianship Board pursuant to section 20 of the Mental Health Act 1993.

The original application was prepared personally by the appellant.When his application came on for hearing before the Court, his counsel applied for leave to amend the grounds of appeal.That application was not opposed and leave was granted.The amended grounds read as follow:-

"1. The Board misrepresented the nature of the order sought in the application and thereby denied the appellant natural justice.

2. There was no evidence before the Board to support the findings that:

2.1 the appellant does not believe that he has a mental illness;

2.2 the appellant was unwilling to take medication.

3. The evidence concerning risks to the appellant's own health and safety was vague and unsatisfactory.There was contrary evidence before the Board that the appellant sought our help when necessary.

4. The Board could not be satisfied, on the evidence before it, that:

4.1 the appellant had refused or failed, or was like to refuse or fail, to undergo authorized treatment (s.20(1)(b));

4.2 the appellant should be given treatment in the interests of his own health and safety (s.20(1)(c)).

5. The order should not in all the circumstances have been made (s.20(1)(d))."

Counsel for the appellant argued that the hearing before the Board had miscarried in a number of important respects.Whilst conceding that the member who had conducted the hearing had been well intentioned in her desire to put the appellant at his ease, he argued that the high degree of informality that had been adopted had allowed the hearing to falter both procedurally and in substance.

Counsel for the respondent argued that, in the context that there had been a previous community treatment order made in respect of the treatment of the appellant's illness, and on the material before the Board, the making of the order had been fully justified.

In our opinion, the hearing before the Board got off to a bad start.The appellant was not represented.After introductions in which the presiding member and the appellant agreed to address one another by their first names, the presiding member took the unusual step of asking the appellant his understanding as to why he was present at the hearing.The appellant indicated that "the doctors have a diagnosis of me of paranoid schizophrenia."He went on to say that he had stopped taking medication two years ago and that there had been "a lot of problems while I was off medication."The appellant subsequently made it clear that he had subsequently resumed taking medication, but that he sought to "negotiate" a reduction in medication and a total cessation of such treatment over a period of time.The hearing then took a very discursive course, but the point was well made before us by counsel for the appellant that it was never made clear to the appellant as to what the nature of the application was and that the making of an order would enable treatment to be given to the appellant whether or not he consented to that course being taken.It was put to the appellant that what was being sought was a "safety net" and that the order would be "just a piece of paper."

In these circumstances, we consider that the proceedings were basically flawed.The canons of procedural fairness were not followed.The appellant was never given to understand the full nature of the proceedings nor was he given a proper opportunity to confront the issues which determine whether or not an order should be made.

Section 20 of the Mental Health Act reads as follows:-

"20. (1) If the Board is satisfied, on an application under this section -

(a) that a person has a mental illness that is amenable to treatment;and

(b) that a medical practitioner has authorised treatment for the illness (not being prescribed psychiatric treatment) for the person but the person has refused or failed, or is likely to refuse or fail, to undergo the treatment; and

(c) that the person should be given treatment for the illness in the interests of his or her own health and safety or for the protection of other persons; and

(d) that an order under this section should, in all the circumstances, be made,

the Board may, by order, authorise the giving of treatment to the person for his or her mental illness for a period, not exceeding 12 months, specified in the order.

(2) An application under subsection (1) may be made by the Public Advocate, a medical practitioner or a guardian, relative or medical agent of the person the subject of the application.

(3) Treatment may be given pursuant to an order under this section notwithstanding the absence or refusal of consent to the treatment.

(4) The Registrar must, not less than two months before the expiry of an order under this section that endures for a period of six months or more, send a notice to the person who made the application for the order and to each other person empowered to make such an application, reminding him or her of the date on which the order will expire."

It is apparent from that section that a number of matters must be proved before a community treatment order can be made.At the hearing in question, there was no orderly examination of these matters.

The first of them has two components to it.It must be established that the person concerned is, at the time when the matter is under consideration, suffering from a mental illness and that the illness is amenable to treatment. These matters appear to have been assumed in the present case.There was a doctor, Dr Stephen Meredith, present at the hearing, but he does not appear to have been asked the all-important question.The published reasons for the Board's decision do not suggest that the Board had before it any recent medical report upon the state of the appellant's health.

The second requirement of section 20 also has two limbs to it, first, that a medical practitioner has authorised treatment for the illness and, secondly, that the person has refused or failed, or is likely to refuse or fail, to undergo the treatment.It was clear from the discussion which took place that medication had been prescribed for the appellant and that the dosage had been reduced in recent times.It appeared that the reduction had been with the approval of the practitioner.As previously mentioned, the appellant was obviously seeking to have a programme of progressive reduction put in place. He made it quite clear, however, that he was well aware that it would be most undesirable for him to reduce his medication other than gradually and over an extended period.Whilst the appellant had stated that he had unilaterally ceased taking his medication some years previously, there was no evidence of substance to suggest that the appellant has recently refused or was likely to refuse or fail to continue his treatment.

The third requirement of section 20 also contains a two-fold test.It must be shown that the person should be given treatment "in the interests of his or her own health and safety" or, alternatively, "for the protection of other persons."Again, the issue seems to have been assumed in terms of the appellant's own health rather than demonstrated at the hearing.There was only one mention of the risk to others.This was in a question asked by the presiding member of the key worker in attendance.The key worker started to answer the question in the affirmative, but was immediately challenged by the appellant upon the basis that she had only come to know him a few weeks previously.The matter was not then pursued.There was certainly no real evidence given on the question.

Finally, if all of the matters previously canvassed have been adequately proved, the Board must still be satisfied that an order under the section should, in all of the circumstances, be made.In other words, notwithstanding the fact that formal proof may have been given of all of the preceding matters, the Board must still be satisfied that it is appropriate to invoke the powers that underlie the making of an order.

In the circumstances of the evidence given in the present case, we are concerned as to whether proper consideration of this issue was, or could have been, made.It seems that the view was taken that the appellant was consenting to an order, but, for the reasons that we have already discussed, his consent was not an informed consent.He was given quite the wrong impression as to what it was that was being "agreed".In our opinion, the final requirement of section 20 was not met.

For these reasons, we are satisfied that the Board erred in making a community treatment order upon the evidence that was before it.That being the case, the court grants the appellant leave to appeal against the order of the Board and on that appeal quashes the order appealed against.