GB and MENTAL HEALTH TRIBUNAL
[2021] WASAT 45
•24 MARCH 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: MENTAL HEALTH ACT 1914 (WA)
CITATION: GB and MENTAL HEALTH TRIBUNAL [2021] WASAT 45
MEMBER: JUDGE K GLANCY, DEPUTY PRESIDENT
MS R LAVERY, MEMBER
DR J CAUNT, SESSIONAL MEMBER
HEARD: 18 FEBRUARY 2021
DELIVERED : Ex tempore
PUBLISHED : 24 MARCH 2021
FILE NO/S: MHA 2 of 2021
BETWEEN: GB
Applicant
AND
MENTAL HEALTH TRIBUNAL
Respondent
Catchwords:
Community Treatment order made under Mental Health Act 1914 (WA) - Review by State Administrative Tribunal - Whether criteria for making order met - Order affirmed
Legislation:
Mental Health Act 1914 (WA), s 4, s 6, s 6(1), s 18, s 25, s 394, s 494(1)
State Administrative Tribunal Act 2004 (WA), s 17(1), s 27(1), s 27(2), s 29, s 29(3)
Result:
Application for review dismissed
Community treatment order affirmed
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | N/A |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
These reasons were delivered orally at the conclusion of the hearing. They have been edited to correct matters of grammar and infelicity of expression.
Introduction
The applicant has applied for a review, under s 494(1) of the Mental Health Act 2014 (WA) (MHA), of the decision made by the Mental Health Tribunal (MH Tribunal) on 8 February 2021 to continue a community treatment order made in respect of him.
The community treatment order was originally made on 23 November 2020. It is due to expire on 22 February 2021. The applicant contends that he does not have a mental illness within the meaning of s 6 of the MHA and says that the criteria for making a community treatment order which are set out in s 25(2)(a) and s 25(2)(b) of the MHA are not satisfied.
Legal framework
Pursuant to s 25(2) of the MHA, a community treatment order cannot be made unless all of the specified criteria are satisfied. Those criteria are:
(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 a serious physical or mental deterioration;
(c)that the person does not demonstrate the capacity required by s 18 to make a treatment decision about the provision of treatment to himself or herself;
(d)that treatment in the community can reasonably be provided to that person; and
(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.
'Mental illness' is defined in s 6(1) of the MHA as follows:
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.
The expressions 'treatment' and 'treatment decision' are defined in s 4 of the Act as follows:
treatment means the provision of a psychiatric, medical, psychological or psychosocial intervention intended (whether alone or in combination with one or more 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 is defined as follows: treatment decision, in relation to a person, means a decision to give consent, or to refuse consent, to treatment being provided to the person.
The Tribunal on review of a decision of the MH Tribunal must have regard to certain matters. They are matters to which the MH Tribunal itself must have regard under s 394 of the MHA. Where, as in this case, the applicant is an adult the matters are:
(a)the involuntary patient's psychiatric condition;
(b)the involuntary patient's medical and psychiatric history;
(c)the involuntary patient's treatment, support and discharge plan;
(d)the involuntary patient's wishes, to the extent that it is practicable to ascertain those wishes;
(e)the views of any carer, close family member or other personal support person of the involuntary patient;
(f)any other things that the Tribunal considers relevant to making the decision.
Section 25(3) of the MHA requires decisions regarding the making of community treatment orders to be made having regard to guidelines published by the Chief Psychiatrist for that purpose.
Guidelines were published by the Chief Psychiatrist in December 2015. Guideline A is the guideline that applies to the making of decisions about whether or not a person is in need of an inpatient treatment order, or a community treatment order. The Tribunal has had regard to Guideline A in considering and determining this application.
Pursuant to s 17(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) this matter comes within the Tribunal's review jurisdiction because it involves a review of the decision made by the MH Tribunal to continue the applicant's community treatment order.
Under s 27(1) of the SAT Act, the hearing is therefore a hearing de novo; that is, it involves fresh consideration of the matters in issue and is not confined to matters that were before the original decision-maker, the MH Tribunal in this case. The Tribunal may therefore consider new material, whether or not it existed at the time the decision which is the subject of the review was made.
Section 27(2) of the SAT Act provides that the purpose of the review is to produce the correct and preferable decision at the time of the review on the evidence before it.
An applicant does not bear any legal or practical onus of proof. An applicant is not required to prove that a different decision should be made from that which was made by the MH Tribunal.
The Tribunal's powers on review are set out in s 29 of the SAT Act. They are the same as those exercisable by the original decision-maker. Section 29(3) provides:
The Tribunal may
(a)affirm the decision that is being reviewed; or
(b)vary the decision that is being reviewed; or
(c)set aside the decision that is being reviewed and
(i)substitute its own decision; or
(ii)send the matter back to the decision maker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate,
and, in any case, may make any order the Tribunal considers appropriate.
Material before the Tribunal
The material to which the Tribunal had regard in determining this application is:
a)the evidence of the applicant himself. The applicant appeared in person at the hearing;
b)the evidence of Dr W who is the applicant's supervising psychiatrist under the community treatment order (the supervising psychiatrist). The supervising psychiatrist also gave evidence by video link;
c)the medical report of Dr S, psychiatrist registrar, dated 5 January 2021;
d)a copy of the transcript of the hearing before the MH Tribunal which took place on 8 January 2021;
e)the material that the applicant provided to the MH Tribunal in the course of the hearing on 8 January 2021. The material comprised a number of handwritten documents and collages which he had compiled which consisted of photographs and handwritten comments and phrases compiled by cutting and posting words from newspaper headlines. Given the offensive nature of the documents the Tribunal does not intend to describe them in any detail; and
f)the applicant's application.
Mr SL, the applicant's case manager, also attended the hearing by video link because he was part of the applicant's care team. He was not required to give any evidence.
Assessment against the criteria pursuant to the MHA
Mental illness for which treatment is needed
The applicant has a long history of engagement with mental health services and has had various diagnoses over time. The medical evidence is that the applicant has been engaged with mental health services since the early 1980s when he was 36 years of age. The evidence is that he has over that time been given various diagnoses including paranoid schizophrenia, schizoaffective disorder and bipolar disorder. The supervising psychiatrist's evidence is that the applicant has schizoaffective disorder.
The material before the Tribunal established that the applicant has been admitted to hospital for psychiatric treatment on numerous occasions in the past. The most recent admission aside, it had been approximately 10 years since his last admission to hospital. On the supervising psychiatrist's evidence, this lengthy period between admissions was because the applicant was being successfully treated in the community by his general practitioner during those 10 years.
The applicant's own evidence is that he is not mentally ill. He gave evidence that he would go to his general practitioner for treatment, because, although he said he did not believe it was necessary, it was preferable to having to be involved with psychiatrists.
The evidence from the supervising psychiatrist was that in early 2020, the applicant was imprisoned for a short period of time, approximately 18 days. During that time, he was not required to take his antipsychotic medication when it fell due because he was not on an involuntary order under the MHA and could not be compelled to accept treatment. The applicant's own evidence was that he was told by medical staff at the prison he did not need to take any medication. His evidence was that this proved that the prison medical staff agreed that he was not suffering from a mental illness.
Upon release, the applicant did not resume treatment with his general practitioner and, as a result, he was untreated in the community until 4 September 2020. The supervising psychiatrist's evidence was to the effect that because he was untreated for that time the applicant's mental health deteriorated such that on 4 September 2020, he was admitted to hospital after referral from the Community Corrections Centre with whom he had ceased to engage.
The evidence of the supervising psychiatrist, which the Tribunal accepts, is that the applicant's mental health improved during the time he was in Armadale Hospital receiving treatment as an involuntary patient.
The evidence of the supervising psychiatrist, which we accept, was that on admission to Armadale Hospital the applicant was delusional and aggressive, and that prior to his admission, he had been writing numerous letters to government departments in which he expressed his unusual and offensive political views and was also writing to young women requesting that they become his girlfriend. The evidence was that on admission, he was unable to be engaged in conversation at all but that by the time of discharge, his condition had improved such that, provided that conversations were not concerned with his medical treatment, the applicant was able to be engaged in conversation.
Although, as we have previously noted, the applicant's view is that he is not mentally ill, he produced no medical evidence to support that view.
It is clear that the applicant does not accept that he has a mental illness or that he requires treatment for it. Based on the medical evidence, the Tribunal finds that the applicant has a mental illness. The Tribunal accepts the opinion of the supervising psychiatrist which was consistent with that expressed in Dr S' medical report, that the applicant is someone who is suffering from a mental illness, being schizoaffective disorder. Schizoaffective disorder is a specific diagnosis of a mental illness described in internationally accepted standards being the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) and the International Classification of Diseases (ICD-10).
We are satisfied and find that the applicant is a person in need of treatment for his mental illness. This is because we accept the evidence that when he was untreated in the community, the applicant became grandiose, paranoid and disaffected.
Risk to himself, others or of deterioration
The evidence established and we find that, without treatment, there is a significant risk of the applicant suffering serious deterioration in his mental health. Indeed, such was the consequence of the applicant's cessation of treatment voluntarily in the community which preceded his involuntary admission to Armadale Hospital.
The evidence of the supervising psychiatrist, which we accept, was that the applicant's unusual presentation, by which we refer to his manner of dress which was such that would be expected to cause offence to ordinary members of the community who were uninformed as to the applicant's medical condition, and his past behaviour towards young women has resulted in threats of physical violence and actual physical violence being done to him in the community. We find that risk will continue to be present if the applicant is untreated in the community.
Does not demonstrates capacity to make treatment decisions
The evidence of the supervising psychiatrist, which we accept, is that when the applicant was non-compliant with voluntary treatment his mental health significantly deteriorated, and that although the applicant was accepting of treatment while he was in hospital as an involuntary patient he displayed, and continues to display, no insight into his illness and the need for medication. Given the applicant's view that he does not require treatment because he does not suffer from a mental illness we find that the applicant would not be willing to accept treatment on a voluntary basis in the community.
We find that the applicant does not understand the matters involved in making treatment decisions. That is, he does not understand the benefits of treatment and cannot adequately weigh up the effects of the treatment, both positive and negative. Accordingly, we are satisfied and find that the applicant does not demonstrate the capacity to make treatment decisions for himself.
Can treatment in the community reasonably be provided?
We accept the supervising psychiatrist's evidence that the applicant's medical treatment can be administered to him in the community. The material before us established that his treating team is able to and does attend the applicant's residence to administer the medication which he is prescribed.
The evidence leads us to conclude that it is unlikely that the applicant will engage with other services that might be able to be provided by his mental health team such as psychological counselling, but that when he has been required to take his medication, he has done so.
We find on the basis of that evidence that treatment can reasonably be provided to the applicant in the community.
Is there a way of adequately providing treatment that would involve less restriction on the applicant's freedom of choice and movement?
We accept the supervising psychiatrist's evidence, and we find, that in the circumstances there is presently no less restrictive means of providing the applicant with the treatment he requires, given that he is unwilling to accept treatment.
But, the supervising psychiatrist also gave evidence that it is hoped that some less restrictive means of providing treatment might be arrived at in time. The applicant's treating team is working towards getting the applicant back to being willing, even if reluctantly, to accept voluntary treatment in the community as he was prior to his period of imprisonment in 2020.
Conclusion
Based on the findings which we have made, we are satisfied that the correct and preferable decision in this case is to dismiss the applicant's application and confirm the community treatment order.
Orders
The Tribunal orders that:
1.The application for review is dismissed.
2.The decision of the respondent, the Mental Health Tribunal, that pursuant to s 395 of the Mental Health Act 2014 (WA) the patient is in need of a community treatment order and the order remains in force, is affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
CH
Associate to Judge Glancy
24 MARCH 2021
0
0
2