GM and MENTAL HEALTH REVIEW BOARD
[2005] WASAT 163
•11 AUGUST 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: MENTAL HEALTH ACT 1996 (WA)
CITATION: GM and MENTAL HEALTH REVIEW BOARD [2005] WASAT 163
MEMBER: JUSTICE M L BARKER (PRESIDENT)
MS F CHILD (MEMBER)
DR J PENMAN (SENIOR SESSIONAL MEMBER)
HEARD: 11 MAY 2005
DELIVERED : 11 AUGUST 2005
FILE NO/S: MHA 5 of 2005
BETWEEN: GM
Applicant
AND
MENTAL HEALTH REVIEW BOARD
Respondent
Catchwords:
Mental Health Act 1996 (WA) - Review of decision of Mental Health Review Board - Community treatment order - Involuntary patient with diagnosis of schizophrenia - Application of s 26 - Risk to self and others - Order of Board affirmed
Legislation:
Mental Health Act 1996 (WA), s 4, s 26, s 68, s 125, s 137, s 148(A)(1)
The State Administrative Tribunal Act 2004 (WA), s 29(1)-(3)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: Ms Maxine Drake
Respondent: Selfrepresented
Solicitors:
Applicant: Health Consumers Council
Respondent: Self-represented
Case(s) referred to in decision(s):
EO v MHRB [2000] WASC 203
MM v Mental Health Review Board, unreported, Supreme Court of Western Australia, library number 990093, 4 March 1999
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Overview of the Tribunal's decision
The Tribunal dismissed an application to overturn a decision of the Mental Health Review Board to continue the involuntary psychiatric treatment of a patient under a community treatment order. The Tribunal found that the risk to the health of the patient and the risk due to his behaviours directed to young women in his local community warranted the continuation of the treatment despite this being against his wishes.
Application for review
On the 11 May 2005 the Tribunal heard an application lodged by GM for review of a decision of the Mental Health Review Board (Board). The decision of the Board was that GM should continue to be an involuntary patient under the Mental Health Act1996 (WA) (MH Act) and that a Community Treatment Order (CTO) made on the 23 February 2005 which provided for the involuntary treatment of GM in the community should continue to have effect.
The decision of the Board was made on 14 March 2005 and written reasons were produced on 22 April 2004.
The application to the Tribunal comes by way of s 148(A)(1) of the MH Act, which provides as follows:
"148AApplication for review:
(1)A person in respect of whom the Board makes a decision or order who is dissatisfied with the decision or order may, without payment of any fee, apply to the State Administrative Tribunal for a review of the decision or order."
The powers of the Tribunal on review of a decision are found in s 29(1)-(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act):
"29. Powers of Tribunal on review:
(1)The Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decision-maker in making the reviewable decision.
(2)Subsection (1) does not limit the powers given by this Act or the enabling Act to the Tribunal.
(3)The Tribunal may ¾
(a)affirm the decision that is being reviewed;
(b)vary the decision that is being reviewed; or
(c)set aside the decision that is being reviewed and ¾
(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."
The Board is established by s 125 of the MH Act. The role of the Board is to review the involuntary status of patients treated under the MH Act either periodically or on application. Patients may be treated on an involuntary basis either by detention in an authorised hospital or through a community treatment order.
In the case of GM, his involuntary treatment was provided through the Swan Adult Mental Health Centre (Swan Clinic) pursuant to a CTO. The CTO under review was dated 23 February 2005 and was due to expire on 22 May 2005.
The CTO included a "treatment plan" the terms of which provided that GM was required:
"1.To take his prescribed anti psychotic medication. Currently Flupenthixol 10mg/1m/every month. Next injection due 24/2/2005;
2.To attend scheduled CTO appointments, the next one with Dr N Taylor in four week’s [sic] time;
3.To be available for home visits from SAMHC staff, if appropriate."
The statutory framework for involuntary treatment of a patient under the MH Act is set out in s 26 of the Act:
"26. Persons who should be involuntary patients
(1)A person should be an involuntary patient only if -
(a)the person has a mental illness requiring treatment;
(b)the treatment can be provided through detention in an authorised hospital or through a community treatment order and is required to be so provided in order -
(i)to protect the health or safety of that person or any other person;
(ii)to protect the person from self-inflicted harm of a kind described in subsection (2); or
(iii)to prevent the person doing serious damage to any property;
(c)the person has refused or, due to the nature of the mental illness, is unable to consent to the treatment; and
(d)the treatment cannot be adequately provided in a way that would involve less restriction of the freedom of choice and movement of the person than would result from the person being an involuntary patient.
(2)The kinds of self‑inflicted harm from which a person may be protected by making the person an involuntary patient are -
(a)serious financial harm;
(b)lasting or irreparable harm to any important personal relationship resulting from damage to the reputation of the person among those with whom the person has such relationships; and
(c)serious damage to the reputation of the person."
For the purposes of the MH Act "mental illness" has the meaning given by s 4. That section provides that a person has a mental illness if he or she "suffers from a disturbance of thought, mood, volition, perception, orientation or memory that impairs judgment or behaviour to a significant extent". However, s 4(2) provides that a person "does not have a mental illness by reason only of one or more of the following, that is, that the person -
(a)holds, or refuses to hold, a particular religious, philosophical, or political belief or opinion;
(b)is sexually promiscuous, or has a particular sexual preference;
(c)engages in moral or indecent conduct;
(d)has an intellectual disability;
(e)takes drugs or alcohol;
(f)demonstrates anti‑social behaviour."
In an annexure to the written reasons of the Board for the decision made in respect of GM, the principal provisions of the MH Act are set out with comments about the Board's approach to the interpretation of those provisions. We attach the annexure to these reasons.
The hearing of the review before the Tribunal was conducted at the Swan Clinic and GM and his advocate, Ms Maxine Drake from the Health Consumers’ Council (advocate), Dr Nicola Taylor (medical officer/psychiatric registrar) and Dr Amit Banerjee (treating psychiatrist) attended.
In considering the application for review the Tribunal had before it the written reasons for decision of the Board and a statement prepared by the advocate on behalf of GM, which set out the grounds for his application for review. The grounds were expanded during the course of the hearing.
Other material before the Tribunal at the hearing included: the CTO dated 23 February 2005; previous written decisions of the Board; previous CTOs made in respect of GM; correspondence from the Board and reports prepared for the Board for previous reviews; a report from Dr Banerjee dated 11 May 2005 which included a response to the submission prepared by the advocate; a letter from Dr Peter Binns dated 9 June 2004 prepared for the purposes of providing a second opinion in relation to the CTO in place for GM at that time; the integrated progress notes from Swan Clinic; a report from the Multicultural Psychiatric Centre dated 14 July 1986; a discharge summary from Graylands Hospital dated 7 May 1987; correspondence from the State Forensic Mental Health Service including a report from its director, Dr Adam Brett (Consultant Forensic Psychiatrist), dated 20 May 2004.
Validity of the CTO
The first issue raised by the advocate on behalf of GM was a question of the validity of the CTO under review. The issue of validity was whether the CTO complied with the requirements of s 68 of the MH Act that sets out the terms of a CTO. As Dr Taylor was a medical officer and not a psychiatrist it was suggested that, as it was she who was providing the treatment to GM, the CTO did not meet those requirements.
In response to this Dr Banerjee stated that he had signed the CTO and was the supervising psychiatrist, but had delegated the medical responsibility to Dr Taylor subject to his supervision. He stated that this was "standard practice" and "within the purview of the Mental Health Act". His evidence was that he had seen GM four or five times in the past year.
In EO v MHRB [2000] WASC 203 it was held that s 68 of the MH Act should be strictly complied with because:
"although that section does not itself result in the detention or continued detention of an involuntary patient, it is a provision which may lead to that result."
The Tribunal finds nothing in the CTO or the manner in which it was supervised to offend the provisions of s 68. Dr Banerjee is the psychiatrist who signed the order and who was responsible for supervising the carrying out of the order (s 68(1)(a)). Dr Taylor is named in the "treatment plan" section of the CTO and is the medical practitioner who is responsible for ensuring the treatment plan is carried out (s 68(1)(c)). The section contemplates the carrying out of the treatment plan by a mental health practitioner supervised by a psychiatrist. The Tribunal finds that the CTO under review is valid according to the requirements of s 68.
Section 26(1)(a) mental illness requiring treatment
The primary ground for review was whether the statutory criteria in s 26 of the MH Act applied to GM. Before a patient is subject to involuntary treatment all of the requirements in s 26(1) must be satisfied.
In respect of the application of s 26, the first question is the issue of whether GM has a mental illness requiring treatment.
In the hearing before the Tribunal, the advocate on behalf of GM confirmed that GM did not agree that he suffered from a mental illness and that he considered the CTO was a device by which he could be kept under surveillance. The advocate submitted that the diagnosis of mental illness was an inappropriate means by which GM's behaviour was managed.
The submission of the advocate in relation to the question of whether GM suffered a mental illness was that too great a reliance had been placed on a past history of GM and that there was insufficient current and compelling evidence to support the finding. She submitted that there had not been "a clean slate assessment" of his current behaviour by the successive doctors at Swan Clinic who have treated him in the years since his initial diagnosis.
In response to this point Dr Banerjee contended in his report that GM "had exhibited persecutory delusional thinking, and continues to harbour odd and unusual ideas of wanting to befriend and marry young children". He stated GM's thinking processes appeared to be "concrete". He illustrated this by reference to GM's stated view that his medication gave him the "flu" as the medication was flupenthixol.
Dr Banerjee's report stated that GM was tried "off medication" in 1995 for some time with close community mental health nursing but he became unwell and expressed the "belief of God communicating through him with energy symbols and numbers". The report also refers to a period when GM was off medication from August 2003 for some months and stated that there was an observed deterioration in GM's mental state. Dr Banerjee stated that at that time GM's thought processes were said to be "more illogical, his level of irritability and hostility toward his family had increased and he felt that family members had prevented him from marrying".
During the hearing, Dr Banerjee referred to recent contact by GM with Dr Taylor in April 2005 when GM discussed his contact with two young girls who lived next door to him and his discussions with them about the prospect of marriage. He also reported that GM had said recently "God" had told him that he would try to help him find a girlfriend.
Dr Taylor confirmed that she had seen GM in the last month and GM had been open with her and discussed his actions more freely. Dr Taylor stated that GM had told her that he had invited the young girls into his house and had given them lollies and juice. GM had told her that it was "even more important that he marry" and had also stated that he had recanted Catholicism because he believed that there were efforts by local priests to turn him into a priest to prevent him marrying.
Dr Banerjee stated that there was no cure for schizophrenia but the symptoms could be managed. He stated that when GM was not treated in a "global" way he lost touch with reality.
Two reports were made available to the Tribunal, which had apparently not been before the Board when it considered the application by GM for review of the CTO.
The first was a report from Dr Peter Binns dated 9 June 2004, which was a second opinion in relation to the CTO then in place and sought by GM. Dr Binns is a consultant psychiatrist working at the Morley Adult Mental Health Centre. Dr Binns reported on his discussions with GM regarding GM's wish to marry and stated that:
"He has lost count of the number of women to whom he has proposed marriage but says the youngest was the 13 [year‑old] girl who is currently his neighbour. … He says that he does not have thoughts of having sex with these girls and has never touched them. He says that he does not become sexually aroused by them. He sees the aim of approaching them as fulfilling his church's teaching regarding marriage."
Dr Binns concluded in his report that GM's judgment is "clearly impaired" and that GM "has a mental illness, most likely schizophrenia, which requires treatment to protect his own health".
The second report was from Dr Adam Brett dated 20 May 2004, addressed to Swan Clinic. In that report, Dr Brett refers to a request for an assessment for the purposes of a second opinion and to address GM's risk issues. In the report Dr Brett stated that GM's "cognition appeared to be significantly impaired".
From GM's discussion with him, Dr Brett reported GM's preoccupation with marriage and said that GM had stated:
"that he had 'propositioned hundreds [of young women] in shopping centres'. He stated that he had got a hint from God to go for younger girls and he alluded to a delusion of reference that he had been given a sign from God to do this. It appears that he has been propositioning girls down to twelve years of age. He stated he should be able to proposition girls and arrange a marriage with them. When asked how he knew the girls would want a relationship with him, he said if she looked intelligent and attractive this was enough for him. It appears that he has been looking for girls in public places. He denied visiting schools but stated he had propositioned girls in shopping centres and on trains. He stated 'if you don't ask you don't know'. He had little insight into the moral or legal implications of his behaviour."
Dr Brett referred to the "longitudinal history supplied" and stated:
"[there] appears … little doubt that [GM] suffers from a chronic mental illness. It appears likely that this is schizophrenia. I am concerned about GM's cognitive function and wonder if he is dementing particularly with respect to his frontal lobe functioning."
It appears to the Tribunal that on the evidence of Dr Banerjee, Dr Brett and Dr Binns, GM suffers a mental illness within s 4 of the MH Act, in that he suffers from a disturbance of thought and perception that impairs his judgment and behaviour to a significant extent.
The impairment of GM's judgment was identified by all three psychiatrists and is reflected in his behaviour of continually approaching young women and girls for the purposes of marriage and his belief that he must marry to avoid becoming a priest.
In respect of the advocate's submission that too great a reliance was placed on the treatment history of GM, the Tribunal notes that s 137 of the MH Act specifically requires the Board when "making a determination upon a review … to have regard primarily to the psychiatric condition of the person concerned and … to consider the medical and psychiatric history and the social circumstances of the person".
The Tribunal considers that the impairment of judgment and behaviour evident in the behaviour of GM is significant, and accepts and relies on the evidence of the three psychiatrists who have examined him in the last year in making the finding that GM suffers a mental illness which impairs his judgment and behaviour to a significant extent and requires treatment. As a result s 26(1)(a) of the MH Act is satisfied.
In its reasons for decision, the Board does not make an express finding, as it is required to do, under the MH Act, with respect to the question of whether the mental illness suffered by GM "impairs judgment or behaviour to a significant extent". (See MM v Mental Health Review Board, unreported, Supreme Court of Western Australia, library number 990093, 4 March 1999 per Scott J.) In that decision his Honour stated at page 13:
"[b]ecause of the need to construe this legislation strictly, in my view it was essential for the Board to consider whether the condition from which the appellant suffered 'impaired judgment or behaviour to a significant extent'. The importance of that aspect of the definition of mental illness cannot be underrated. It is not every disturbance of thought, mood, volition, perception, orientation or memory which will fall within the statutory definition of mental illness. Such a condition will only come within the statutory definition if it impairs judgment or behaviour to a significant extent."
Section 26(1)(b) risks
The next element to fulfil the statutory criteria to authorise involuntary treatment is found in s 26(1)(b) which requires that treatment is necessary to avoid risks.
The risks identified by the Board in its reasons, were the risk that GM's mental condition and mental health would deteriorate without treatment, as it has done in the past, with a further consequential risk to his reputation as a result of the inappropriate behaviour.
The Tribunal accepts that there is a need for treatment to avoid deterioration in GM's mental state and mental health. Dr Banerjee's evidence is that GM's mental illness has been amenable to treatment in the past. During periods of time when he has been not actively treated (in 1995 and 2003) his mental health is said to have deteriorated and this was manifest in an increase in disorganisation, illogical thinking and the deterioration in his behaviour, including irritability and threatened aggression towards his parents.
Dr Banerjee also referred to the reinstatement of the CTO in 2003 that had resulted from the Swan Clinic being contacted by the adoption services that advised that GM had approached them for the purposes of adopting a child.
In responding to the reasons of the Board for the continuation of the CTO, the advocate submitted that there was a need for a more compelling current evidence of risk behaviour and that it was inappropriate to rely on dated evidence of GM's aggression towards his father in 1986. This episode of aggression had apparently resulted in his involuntary admission to Graylands hospital and treatment there. She also referred to his behaviour in 1996 where apparently he had sat in the driveway of his parent's home in the car blasting the horn. She questioned whether these were symptoms of a mental illness sufficient to justify compulsory treatment.
The advocate submitted that the behaviours said to represent risk namely, approaching young women and girls, persisted while GM was on medication. She suggested the Tribunal should not accept the position taken by the Board in respect of the risk to GM's reputation and submitted that there was a greater risk to his reputation from the stigma attached to being a mental health consumer and that the measure of damage to his reputation should be critically assessed.
In his report to the Tribunal dated 11 May 2005, Dr Banerjee referred to the risks associated with non treatment of GM and particularly to the forensic assessment done by Dr Adam Brett in May 2004 which stated that GM "could be a significant risk to young children and [I] believe that this is in the context of a paedophilia like syndrome".
Dr Banerjee said that without treatment GM could be at risk to self and others, not only because the past documented aggression towards his father and past behaviour but also to the issues raised in the risk assessment completed by Dr Brett.
Dr Banerjee went on to say that GM's "lack of insight into the fact that his ideas were unusual and odd would have been taken into consideration when assessing his risk to self and others".
Dr Banerjee also referred to the Swan Clinic file which indicated that with the introduction of anti‑psychotic medication GM's "symptoms quickly subsided".
To an extent, the evidence of Dr Banerjee at the hearing and in his report is not consistent with the report of Dr Taylor previously provided to the Board dated 14 March 2005 which reported that:
"GM maintained there has been no inappropriate behaviour and that he knows boundaries. There is no indication that he has had any sexual interest in these young children. …"
In respect of the behaviour of approaching young girls, the advocate stated that this "desire to seek a partner" persisted while GM was on medication and that the referral for forensic assessment had occurred during a period when GM was receiving medication. Dr Brett is guarded in his report as to whether GM's thoughts were related to his mental illness but stated that "they do appear to have occurred since reduction in his medication". This view appeared to be supported by Dr Taylor in the hearing as she stated that since the reduction in his medication, GM had discussed his prospects of marriage more freely with her and had stated that it was even more important that he marry at his recent appointment with her.
The Tribunal accepts the submission of the advocate that the risk to the reputation must be sufficient to justify compulsory treatment. In the circumstances of GM, the Tribunal finds that GM's behaviour places him at risk of stigma, possible ridicule or worse in his local community. However, the more significant risks are to his own health and the risks posed to others, specifically the young girls and women he approaches.
The decision in this matter presents some complexity for the Tribunal as well as GM and those who seek to provide treatment to him. GM has had only one involuntary admission to hospital in 1986 and it appears that he remains well managed in the community with relatively non‑obtrusive treatment. It is acknowledged that this treatment only occurs because it is enforced through the coercive power of the MH Act as GM is opposed to it and has remained of that view over the years of his involuntary treatment. Having considered this and all of the available evidence the Tribunal finds that on balance there is a risk of non‑treatment both to GM, in the deterioration of his mental health, and to others, from his behaviour of approaching young women and these risks are potentially too great in all the circumstances to allow his application for review of the decision of the Board to confirm the CTO.
Section 26(1)(c) inability to consent
To authorise involuntary treatment the patient must have refused or, due to the nature of the mental illness, be unable to consent to the treatment.
In the Board's reasons, the history of GM's mental health treatment is recorded:
"According to records maintained by the Board, GM has most recently been an involuntary patient since August 2003 when a community treatment order (CTO) was made. Since then CTO's has [sic] been extended or a new CTO made on a regular basis such that GM [sic] status as an involuntary patient on a CTO has been continuous since that time."
In paragraph 11 of its reasons, the Board refers to the evidence of GM that he does not believe he has a mental illness and he does not need medication and would not take it if he were not obliged to do so by the CTO.
GM stated in the hearing that he had the injections for three or four years and he was concerned about the side effects of the medication. He stated that in six months time he might be getting married and he was concerned about having deformed children. He stated that he nearly always had the flu, and it is because of these injections, and that he did not have a mental illness and there was no "excuse" for continuing to treat him.
GM does not agree that he has a mental illness and he does not wish to be treated with medication. He considers the CTO is a device to keep him under surveillance. GM has been consistent in his views about refusing medication. We accept that GM is compliant with having the injections only as a result of the CTO and that, but for the CTO, would refuse treatment. Accordingly, the Tribunal is satisfied that s 26(1)(c) is satisfied.
Section 26(1)(d) less restriction
The Board in its reasons considered the requirement that treatment be provided in the less restrictive way possible. At par 12 the Board stated that:
"it is apparent from the evidence referred to above that if GM was not an involuntary patient on a CTO then there is no reasonable prospect that he would give consent to the injection medication that he requires and that it is not, therefore, possible for GM to receive the treatment as a voluntary patient. It follows that the Board considers that the treatment that GM requires cannot be adequately provided in a way that it is less restrictive than him being on a CTO."
Dr Banerjee advised the hearing that in an effort to respond to the consistent wish of GM regarding medication that the dose had been reduced to a very low dose to what was described as a possibly "sub therapeutic" dose.
The Tribunal accepts that there is no means by which GM's involuntary treatment could be achieved other than through a CTO.
Conclusion
The Tribunal for these reasons affirms the decision to continue the involuntary status of GM and his treatment in the community subject to the CTO dated 23 February 2005.
Order
The Tribunal orders that the application for review be dismissed.
I certify that this and the preceding [62] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE M L BARKER, PRESIDENT
Annexure A
0