In the Matter Of Charles (Mental Health)
[2021] ACAT 17
•12 March 2021
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
IN THE MATTER OF CHARLES (Mental Health) [2021] ACAT 17
MH 188/2008
Catchwords: MENTAL HEALTH – guardianship – guardian appointed for person with mental illness – guardian given power to give any consent required for treatment to support his mental health – person received treatment for their mental illness with guardian’s consent – guardian subsequently withdrew consent on the basis that the person did not express ‘willingness to receive the treatment’ – section 70A(1)(c) of the Guardianship and Management of Property Act 1991 allows a guardian who has power to give consent required for medical treatment ‘under the Mental Health Act 2015’ to give that consent only if the person ‘expresses willingness to receive the treatment’ – whether the treatment of the person is ‘under the Mental Health Act 2015’ – whether section 70A applies to restrict the guardian’s power to give consent – meaning of ‘under’ – principles of statutory interpretation
Legislation cited: Guardianship and Management of Property Act 1991 ss 4, 5A, 7, 70A
Guardianship and Management of Property Amendment Act 2001
Legislation Act 2001 ss 126, 127, 138, 139, 140, 141, 142, Dictionary
Mental Health Act 2015 ss 5, 6, 9, 10, 15, 16, 17, 20, 21, 22, 23, 24, 26, 27, 28, 30, 31, 39, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 135, 136, 137, 138, 139 140, 141, 142, 143, 144, 144G, 147, 148, 149, 150, 151, 153, 156, 157, 158, 162, 163, 167, 168, 169, 170, 171, 172, 173, 174, 175, 187, 188, 197, 198, 202, 205, 207, 217, 222, 226, 228, 229, 230 239, 250, 252, 268, Dictionary
Mental Health (Treatment and Care) Amendment Act 2014 Schedule 1
Senior Practitioner Act 2018
Cases cited:In the matter of BC [2018] ACAT 67
In the matter of FG [2018] ACAT 134
In the matter of Michael [2020] ACAT 8
In the matter of Renée [2019] ACAT 116
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
List of
Texts/Papers cited: Explanatory Statement and Revised Explanatory Statement for the Mental Health Bill 2015
Revised Explanatory Statement, Mental Health (Treatment and Care) Amendment Bill 2014
Tribunal: President G Neate AM
Senior Member K Lubbe
Date of Orders: 12 March 2021
Date of Reasons for Decision: 12 March 2021
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) MH 188/2008
IN THE MATTER OF CHARLES
TRIBUNAL:President G Neate AM
Senior Member K Lubbe
DATE:12 March 2021
ORDER
The Tribunal orders that:
1.The application for a psychiatric treatment order in relation to Charles is dismissed.
………………………………..
President G Neate AM
For and on behalf of the Tribunal
REASONS FOR DECISION
Introduction
1.In formal terms, this case involved an application to the ACT Civil and Administrative Tribunal (the Tribunal) for a psychiatric treatment order (PTO) to be made under the Mental Health Act 2015 (the MH Act) in relation to Charles.[1]
[1] Given that this matter concerns a mental health hearing, in these reasons the Tribunal has chosen a name for the patient that bears no resemblance to his real name, and has not disclosed facts which would enable him to be identified.
2.However, the threshold legal issue in the case was whether section 70A(1) of the Guardianship and Management of Property Act 1991 (the GMP Act) regulates whether the guardian for Charles can give consent to treatment for Charles’ mental illness.
3.For the reasons set out below the Tribunal has decided that:
(a)the guardian is not bound by the restrictions in section 70A(1) of the GMP Act when deciding whether to give consent to treatment being provided to Charles for his mental illness; and
(b)it is not necessary for the Tribunal to decide whether a PTO should be made in relation to Charles.
Background
4.Charles is 82 years old and has a diagnosis of schizoaffective disorder. He has led an itinerant life, travelling throughout Australia, and arriving in Canberra in early 2020. He currently lives in a residential aged care facility (RACF) in Canberra.
5.Charles underwent a lengthy admission to the Older Persons Mental Health Inpatient Unit (OPMHIU) between 12 May and 22 October 2020 arising from a manic relapse.
6.On 17 July 2020, the Tribunal appointed the Public Trustee and Guardian (the PTG) as guardian for Charles. The powers granted to the PTG include the power “to give any consent required for a medical procedure or other treatment including treatment to support his mental health (other than a prescribed medical procedure).”
7.In brief written reasons in relation to the guardianship order, the Tribunal wrote that, although the longer-term plan was to facilitate Charles’ return to a city interstate where he has family:
significant decisions need to be made in the shorter term regarding medical treatment including treatment to support his mental illness (noting that a mental health order under the Mental Health Act 2015 could not be made because [Charles] is not refusing treatment, care or support) and access to support services.
8.Between 22 October and 9 November 2020, Charles underwent a medical admission. Upon discharge he was transferred to the RACF. The Older Persons Mental Health Community Team (OPMHCT) commenced follow-up and the ongoing provision of mental health care.
9.There is no issue in this case that Charles is receiving treatment, care and support for a mental illness. Nor is there any dispute that Charles needs treatment, and that without that treatment there is a high chance of him relapsing with significant risks to his health and welfare.
10.The PTG gave consent to the treatment provided by the OPMHCT until 18 December 2020 when the PTG advised the OPMHCT that consent was no longer given for the mental health treatment, care or support of Charles.
11.The OPMHCT were informed that, following the PTG’s discussion with him, Charles “has declined mental health treatment, care, and support and expressed his unwillingness to receive the proposed treatment, care and support.” Therefore, the “PTG are unable to provide consent to treatment on [Charles’] behalf because” the provision of section 70A(1)(c) of the GMP Act “is not met.”
12.On 24 December 2020, Dr Daniel Heard applied for a PTO for Charles. The application was prompted by the withdrawal of the PTG’s consent to the treatment on the basis that Charles did not express “willingness to receive the treatment.”
13.The circumstances in which Charles receives treatment for his mental illness and his attitude towards that treatment are described in Dr Heard’s application. The following quoted paragraphs are drawn from that application.
At assessment with Dr Heard dated 04/12/2020, [Charles] expressed being compliant with his Risperidone, he also indicated that he requests the nursing staff to tell him which medication they are giving him prior to taking daily, and despite not believing that he has a mental illness he is taking his Risperidone without prompting or coercion.
…
[Charles] has been compliant with psychotropic medication, treatment, and care from RACF nursing and support staff and has also displayed a willingness to engage with OPMHCT. Although he does not believe he has a psychiatric illness and does not think he requires antipsychotics, he takes his prescribed risperidone without complaint because he says he believes it is the right thing to do to take medication prescribed for him by a doctor.
However, information provided by [Charles’] Guardian is that [Charles] is verbally expressing his unwillingness to receive the proposed treatment, care and support from OPMHCT. This has not been communicated by [Charles] to the treating team in our conversations with him, nor have care facility staff reported him refusing his medication at any time.
…
[Charles] has consistently accepted treatment and reviews by our team on a voluntary basis (ie without a PTO in place) since his discharge from hospital.
…
He accepts his risperidone tablets, and is aware that they are prescribed for a psychiatric condition. He is in the habit of asking his nurse each day what each of his tablets is as he takes them, so his acceptance of the risperidone cannot be explained with reference to his short-term memory impairment. He has been quite happy to speak at length with his clinical manager and the doctor from the Older Person’s Mental Health Community Team when they attended to review him and introduce themselves as such.
14.Dr Heard also wrote:
The reason for this application is that the PTG recently withdrew their consent for treatment… [Charles] does not have decision making capacity for health or mental care, and either [Charles] requires a PTO for ongoing mental health treatment or the question of whether s70A of the Guardianship Act prohibits his guardian consenting to mental health treatment on [Charles’] behalf, requires clarification.
15.At the resumed hearing of this application,[2] the officer of the PTG who exercises the PTG’s guardianship powers advised the Tribunal that he had contacted Charles since the first hearing[3] to seek his views and had been informed that Charles wishes for the treatment to stop. On that basis, the PTG concluded that Charles is unwilling to accept the treatment and as a consequence the PTG could not consent to it.
[2] 20 January 2021
[3] 14 January 2021
16.The submission made for the Chief Psychiatrist was that Charles is not receiving treatment, care or support under the MH Act and it follows that section 70A of the GMP Act is not engaged in these circumstances.
17.According to Dr Heard:
[W]e believe the PTG is in error in their understanding of the law, and that they are not prohibited by s70A from consenting to mental health treatment on [Charles’] behalf.
We also contend that regardless of whether s 70A(1) applies to [Charles], [Charles] has consistently indicated by his words and behaviour over an extended period of time that he is quite willing to receive treatment for his mental health.
Issues
18.The issues in this case are:
(a)Is Charles’ guardian bound by section 70A(1) of the GMP Act when deciding whether to give consent to medical treatment of Charles for his mental illness?
(b)If the answer to (a) is “yes”, can Charles’ guardian be satisfied that Charles “expresses willingness to receive the treatment”?
(c)If the answer to (b) is “no”, are the requirements of section 58 of the MH Act met (including that Charles “refuses to receive the treatment, care or support”[4]) so that a PTO should be made in relation to Charles?
[4] Mental Health Act 2015 section 58(2)(b)(i)
19.The PTG did not make submissions directly in relation to those issues but provided the Tribunal with written and oral observations about the broader implications of this case for the PTG’s decision-making in relation to people in various circumstances. Those matters are considered toward the end of these reasons for decision.
The applicable legislation
20.The questions raised in this case must be answered by reference to the words of relevant sections of the GMP Act and the MH Act, as interpreted in their legislative context[5] assisted by the Legislation Act 2001.
[5] See e.g. SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 at [14] and [37]–[39]
21.The Tribunal has proceeded to work out the meaning of the relevant sections by reference to some key principles of statutory interpretation. In summary, we have started with the words of the legislation. Because there are issues about the meaning and scope of some words and phrases, we need to prefer the interpretation that would best achieve the purpose of the relevant Act to any other interpretation.[6] In working out the meaning of an Act (including resolving an ambiguous provision of an Act), the provisions of the Act must be read in the context of the Act as a whole.[7]
[6] Legislation Act 2001 section 139
[7] Legislation Act 2001 sections 138, 140
22.It is appropriate to mention that:
(a)a heading to a section or subsection of an Act is part of the Act if the Act was enacted after 1 January 2000 or the heading was amended or inserted into the Act after 1 January 2000;[8]
(b)an example in an Act is part of the Act;[9]
(c)a note in an Act is not part of the Act,[10] but notes can assist in ascertaining the scope of a provision.
[8] Legislation Act 2001 sections 126(2)
[9] Legislation Act 2001 section 126(4)
[10] Legislation Act 2001 section 127(1)
23.The starting point is section 70A(1) of the GMP Act, which states:
Restrictions on consent by guardian to mental health treatment, care or support
(1) A guardian who has power to give for a person a consent required for medical treatment involving treatment, care or support under the Mental Health Act 2015 may consent to that treatment only if the person—
(a)does not have decision-making capacity under that Act; and
(b)does not have an advance consent direction under that Act authorising the treatment; and
(c)expresses willingness to receive the treatment.
24.The opening passage of section 70A(1) has the following components which must be satisfied before the conditions listed in paragraphs (a), (b) and (c) need be considered.
(a)There must be a guardian.
(b)The guardian must have “power to give for a person a consent required for medical treatment” involving treatment, care or support ‘under’ the MH Act.
(c)The guardian ‘may’ consent to the treatment – that is, the guardian has discretionary power.
(d)The guardian may consent to ‘that treatment’ – that is, the medical treatment involving treatment, care or support ‘under’ the MH Act.
25.The Dictionary to the MH Act includes the following definition:
treatment, care or support, for a mental disorder or mental illness—
(a) means things done in the course of the exercise of professional skills to remedy the disorder or illness or lessen its ill effects or the pain or suffering it causes; and
(b) includes the giving of medication and counselling, training, therapeutic and rehabilitation programs, care or support.
Examples—rehabilitation support
1 support to improve social confidence and integration
2 assistance to improve work skills
26.The expressions ‘mental disorder’ and ‘mental illness’ are defined in sections 9 and 10 respectively of the MH Act.
27.The threshold issue in this case is whether the treatment being given to Charles for his mental illness is treatment ‘under’ the MH Act. The Chief Psychiatrist contended that Charles is not receiving treatment, care or support ‘under’ the MH Act because he is a voluntary patient. Therefore, the submission is that section 70A(1) of the GMP Act is not engaged in these circumstances. It follows that the PTG is not prohibited by section 70A(1) of the GMP Act from consenting to mental health treatment on Charles’ behalf.
28.The PTG has proceeded on the basis that section 70A(1) applies to Charles’ circumstances.
29.This case also raised a broader issue. In what circumstances, if any, is the consent of a guardian required before a person may receive treatment, care or support ‘under’ the MH Act?
30.The Dictionary to the Legislation Act 2001 provides:
“under”, in relation to an Act or statutory instrument, includes the following:
(a) by;
(b) by virtue of;
(c) for or for the purposes of;
(d) in accordance with;
(e) in pursuance of;
(f) pursuant to;
(g) within the meaning of.
Note A reference to an Act or statutory instrument includes a reference to a provision of the Act or instrument (see s 7 and s 13).
31.The approach taken by the PTG seems to be that Charles is receiving treatment, care or support ‘within the meaning of’ the MH Act, and hence it is treatment, care or support ‘under’ the MH Act. Consequently, section 70A(1) is relevant and applies.
32.The Chief Psychiatrist submitted that, ‘under’ means ‘pursuant to’. On that basis, for treatment to be properly characterised as ‘under’ the MH Act, there needs to be an order or direction made using a provision of the MH Act, such as a PTO.
33.The Chief Psychiatrist submitted that, because there are no orders in place under the MH Act in relation to Charles, he is not receiving treatment, care or support ‘under’ the MH Act. Consequently, whether Charles ‘expresses willingness to receive the treatment’ does not operate as a restriction on the guardian’s power to consent to the treatment.
34.The Chief Psychiatrist drew a distinction between the powers conferred on a guardian under section 7(3)(e) and section 7(3)(f) of the GMP Act. Those paragraphs refer to power:
(e) to give, for the person, a consent required for a medical procedure or other treatment (including medical research or low-risk research but not including a prescribed medical procedure or medical treatment mentioned in paragraph (f));
Note For when a guardian may consent to a person participating in medical research or low-risk research, see pt 2B (Medical research and low-risk research).
(f) to give, for the person, a consent required for medical treatment involving treatment, care or support under the Mental Health Act 2015 (other than a prescribed medical procedure);
Note For provisions relevant to a guardian with power under this paragraph, see s 70A (Restrictions on consent by guardian to mental health treatment, care or support).
35.The Tribunal has previously described the power under section 7(3)(e) as a power to consent to general medical treatment including general mental health treatment that does not require a mental health order.[11]
[11] See In the matter of Renée [2019] ACAT 116 at [11]
36.The Chief Psychiatrist submitted that, having regard to the ordinary meaning of the term ‘medical procedure or treatment’, the power in section 7(3)(e) is arguably broad enough to allow the guardian to consent to forms of treatment, care and support for a mental illness or mental disorder that are not provided for by the MH Act. That power, if granted to a guardian, must be exercised in accordance with the decision-making principles in section 4 of the GMP Act.
37.In this case, there is no issue about the breadth of section 7(3)(e) of the GMP Act because of the additional words in the power granted by the Tribunal to the PTG to consent to treatment “including treatment to support his [Charles’] mental health.”
38.By contrast, section 7(3)(f) of the GMP Act refers specifically to treatment under the MH Act and the note to it refers specifically to section 70A of the GMP Act. The Chief Psychiatrist submitted that the reference to the MH Act in section 7(3)(f) does not exclude the ability of a guardian to consent to treatment of a mental illness or mental disorder in the absence of an order under the MH Act. Rather, it confirms that, where a guardianship power is granted under section 7(3)(f), the guardian can provide any consent required for treatment that the MH Act provides for, such as treatment in accordance with an advance consent direction or an advance agreement.
39.Reading section 7(3)(e) and (f) together, it is clear that section 7(3)(e) is broader in scope than section 7(3)(f) and, but for the exception in relation to “medical treatment mentioned in paragraph (f)”, would have encompassed medical treatment of that type. If that is the correct way of reading section 7(3)(e), then the only mental health treatment excluded from section 7(3)(e) is the treatment referred to in section 7(3)(f), namely “medical treatment involving treatment, care or support under the Mental Health Act 2015 (other than a prescribed medical procedure).”
40.Consequently, in order to determine the scope of a power conferred on a guardian under section 7(3)(f), it is necessary to ascertain:
(a)what constitutes “medical treatment involving treatment, care or support under” the MH Act; and
(b)what treatment of that kind requires the consent of a guardian before it can be provided?
41.In relation to (a) there are more than 260 references in the MH Act to ‘treatment, care or support.’
42.The long title states that it is “An Act to provide for the treatment, care or support, rehabilitation and protection of people with a mental disorder or mental illness and the promotion of mental health and well-being, and for other purposes.”
43.The objects of the MH Act listed in section 5, include facilitating access to treatment, care or support and the way in which that can be provided. Section 6 of the MH Act provides that, in exercising a function ‘under this Act,’ specified principles must be taken into account, including in relation to ‘treatment, care or support.’ But those sections do not specify or clarify what constitutes treatment, care or support ‘under’ the MH Act.
44.Many sections of the MH Act refer to ‘treatment, care or support’ provided under mental health orders[12] (namely PTOs, community care orders, or restriction orders), emergency detention,[13] forensic mental health orders[14] (namely forensic PTOs or forensic community care orders), electroconvulsive therapy orders,[15] and various types of transfer orders.[16] The MH Act also provides for the treatment, care or support of correctional patients,[17] and for psychiatric surgery by way of other formal actions.[18] Some of the legislation provisions in relation to the making of these orders and taking those actions are summarised below.
[12] Mental Health Act 2015 sections 50-79; Dictionary (definition of ‘mental health order’)
[13] Mental Health Act 2015 sections 80-92
[14] Mental Health Act 2015 sections 93-126
[15] Mental Health Act 2015 sections 157, 158, 162, 163
[16] Mental Health Act 2015 sections 249, 250
[17] Mental Health Act 2015 sections 135-144G
[18] Mental Health Act 2015 sections 167-175
45.The scheme for making orders pursuant to the MH Act expressly contemplates that other forms of treatment, care or support might be available. For example, when deciding whether to make a PTO, the Tribunal must consider any “alternative” treatment, care or support available,[19] and whether the subject person consents to the proposed course of treatment, care or support.[20] The Tribunal must be satisfied that the treatment, care or support to be provided under the PTO “cannot be adequately provided in another way that would involve less restriction of the freedom of choice and movement of the person.”[21] Similar provisions are made in relation to a restriction order made with a PTO,[22] or a community care order,[23] a restriction order made with a community care order,[24] a forensic PTO,[25] and a forensic community care order.[26]
[19] Mental Health Act 2015 section 56(1)(i)
[20] Mental Health Act 2015 section 56(1)(b)
[21] Mental Health Act 2015 section 58(2)(g)
[22] Mental Health Act 2015 section 60(b)
[23] Mental Health Act 2015 section 66(2)(h)
[24] Mental Health Act 2015 section 68(b)
[25] Mental Health Act 2015 section 101(2)(f)
[26] Mental Health Act 2015 section 108(2)(g)
46.But the consent of the person (or a guardian on the person’s behalf) is not required for the making of any of those orders or forms of detention. The orders involve involuntary treatment, care or support.
47.As a differently constituted Tribunal observed in In the matter ofMichael[27] (Michael), section 70A of the GMP Act is not relevant when a PTO is in place because the PTG (or any guardian) is not giving any “consent required” for medical treatment.[28] That does not mean that a guardian has no role. As the Tribunal in Michael observed,[29] before determining the nature of the psychiatric treatment to be given to the protected person, the Chief Psychiatrist must take all reasonable steps to consult with the protected person’s guardian (if they have a guardian) and must take into account the views of the guardian.[30] A guardian has an important role, recognised under the MH Act, to participate on behalf of the protected person in discussions about the appropriate form and frequency of treatment. In that sense, a guardian might ‘consent’ to one form of treatment rather than another in partnership with the treating team, even though the decision whether the protected person is to receive treatment under the PTO is not one which requires a guardian’s consent. Further, a guardian might have a role in determining whether a PTO should continue. If the protected person’s circumstances change and the order or part of the order is no longer required, the guardian could seek a review of the order by the Tribunal on that basis.[31]
[27] [2020] ACAT 8
[28] In the matter of Michael [2020] ACAT 8 at [78], [88]
[29] In the matter of Michael [2020] ACAT 8 at [67]-[71], [78]
[30] Mental Health Act 2015 section 62
[31] Mental Health Act 2015 section 79; see also In the matter of Michael [2020] ACAT 8 at [72], [73]
48.The Tribunal may also make an interstate transfer order in relation to a person who is under a PTO or other order, and who is receiving treatment, care or support under that order[32] if the Tribunal believes on reasonable grounds that the proposed transfer order is in the best interests of the safe and effective treatment, care or support of the person.[33] All such people are receiving treatment, care or support pursuant to, and hence ‘under’, the MH Act.
[32] Mental Health Act 2015 sections 249(1), 250(1)
[33] Mental Health Act 2015 sections 249(5), 250(5)
49.The MH Act also provides for the treatment, care or support in the ACT of people subject to mental health orders or similar orders made in other states.[34] All such people are receiving treatment, care or support pursuant to, and hence ‘under’, the MH Act.
[34] Mental Health Act 2015 sections 242(c), 243; See also sections 253, 254, 255
50.Chapter 8 of the MH Act makes provision for “correctional patients,” who are detainees or young detainees with a mental illness for which treatment, care or support is available in an approved mental health facility, and for whom a mental health order or forensic mental health order cannot be made.[35] To the extent that a correctional patient receives treatment, care or support under Chapter 8, the treatment, care or support is provided pursuant to, and hence ‘under’, the MH Act.
[35] Mental Health Act 2015 sections 135, 136(1)
51.Chapter 9 of the MH Act deals with electroconvulsive therapy (ECT) and the circumstances in which it may be administered.[36] People with decision-making capacity may consent to the administration of ECT.[37] The Chief Psychiatrist or a doctor may apply to the Tribunal for an ECT order in relation to a person for whom the Tribunal could reasonably make an ECT order.[38] Before making an ECT order in relation to a person who is not subject to a mental health order but has a guardian, the Tribunal must, as far as practicable, consult with the guardian.[39] In making an ECT order, the Tribunal must take into account the views of people consulted, including any guardian,[40] but the consent of a guardian is not required for an ECT order to be made. A PTO or a forensic PTO is needed if ECT is to be administered to a person who refuses or resists.[41] It is clear from those provisions that ECT is a form a treatment pursuant to, and hence ‘under’, the MH Act, but not one which requires a guardian’s consent.
[36] Mental Health Act 2015 section 147(1); sections 148, 149; section 147(2); sections 150, 151
[37] Mental Health Act 2015 sections 148(2), 150(2)
[38] Mental Health Act 2015 section 153
[39] Mental Health Act 2015 sections 154(b), 156(e)
[40] Mental Health Act 2015 section 156
[41] Mental Health Act 2015 sections 149(3)(b)(i), 151(2)(b)(i), 153(3) Note
52.The legislative constraints on when psychiatric surgery may be performed[42] mean that it can be characterised as treatment pursuant to the MH Act.
[42] Mental Health Act 2015 sections 145, 146, 167-175
53.Those conclusions about the form of treatment, care or support provided pursuant to, and hence ‘under’, the MH Act are supported by references in the MH Act to treatment, care or support ‘under’ orders,[43] proposed orders,[44] transfer directions,[45] and Chapter 6 (emergency detention).[46]
[43] Mental Health Act 2015 sections 62, 103, 249, 250, 257
[44] Mental Health Act 2015 sections 56, 99
[45] Mental Health Act 2015 section 141
[46] Mental Health Act 2015 section 251
54.Charles is not the subject of a mental health order or other instrument of a type referred to above. He is a voluntary patient who lacks decision-making capacity. The enquiry then is whether he is receiving treatment, care or support ‘under’ the MH Act in some way other than under a mental health order or other instrument.
55.The only reference in the MH Act to ‘treatment, care or support under this Act’ is in section 30(1) which provides that section 30 applies if:
(a) an advance agreement or an advance consent direction is in force in relation to a person; and
(b) the person has a guardian under the Guardianship and Management of Property Act 1991 with authority to give consent for medical treatment involving treatment, care or support under this Act.
56.Section 30 continues:
(2) Any power of the guardian to consent to treatment, care or support for the person must be exercised taking into account the advance agreement or advance consent direction.
(3) However, the guardian’s consent is not required for any treatment, care or support for which consent is provided under the advance consent direction.
57.Section 30(1)(b) of the MH Act uses similar language to that in section 7(3)(f) of the GMP Act which enables guardians to be given power to:
give, for the person, a consent required for medical treatment involving treatment, care or support under the Mental Health Act 2015 (other than a prescribed medical procedure).
58.Each of those paragraphs is premised on the assumption that there will be occasions in which a guardian might be able (or required) to give consent for medical treatment involving treatment, care or support ‘under’ the MH Act. By referring to treatment ‘under’ the MH Act, those sections exemplify the problem of statutory interpretation rather than solving it.
59.The Chief Psychiatrist submitted, in effect, that there may be few circumstances in which a guardian would be called on to actively provide ‘consent’ (in a determinative sense) on behalf of a protected person to treatment, care or support under the MH Act. Such consent might be given, for example, under section 28(5) of the MH Act.
60.Section 28 deals with such matters as actions taken in accordance with an advance consent direction. Section 28(5) provides that if a mental health professional believes on reasonable grounds that giving treatment, care or support to a person with impaired decision‑making capacity in accordance with an advance consent direction is unsafe or inappropriate, the mental health professional may give the person other treatment, care or support only if certain conditions are satisfied. For present purposes, those conditions are that:
(a)the person is ‘willing’ to receive the treatment, care or support (echoing the language of section 70A(1)(c) of the GMP Act);[47] and
(b)the person has a guardian under the GMP Act; and
(c)the guardian ‘gives consent’ to the treatment, care or support in accordance with the guardian’s appointment.[48]
[47] Mental Health Act 2015 section 25(5)(i)
[48] Mental Health Act 2015 section 25(5)(ii)
61.However, that example does not assist in the present case because one of the preconditions for a guardian giving consent under section 70A(1) of the GMP Act is that the person does not have an advance consent direction under the MH Act authorising the treatment.[49] Consequently, a guardian could not give consent under section 70A(1) of the GMP Act where the person has an advance consent direction made under section 27 of the MH Act.
[49] Guardianship and Management of Property Act 1991 section 70A(1)(b)
62.The parties to these proceedings did not identify other provisions for treatment, care or support ‘under’ the MH Act which would require the consent of a guardian. Nor did the Tribunal.
63.In Michael, a differently constituted Tribunal came to the same conclusion:[50]
I could not find any provision in the MH Act that concerns treatment of a person’s mental health where the person is agreeing to treatment (albeit without capacity to do so) or any provision that requires consent to be given in such a situation. If there is no such provision, it would seem that the mental health power – in its terms – is superfluous in relation to voluntary treatment. However, in the absence of submissions on the point, I do not express any concluded view.
[50] In the matter of Michael [2020] ACAT 8 at [48]
64.Chapter 13 of the MH Act provides for the licensing of private psychiatric facilities. These are hospitals or other facilities for the treatment, care, support, rehabilitation or accommodation of people with a mental illness other than a ‘recognised hospital’ or a facility conducted by the Territory.[51] A licence may include conditions about the treatment, care or support that may be provided at the licensed premises.[52] The MH Act refers to the best interests of people for whom treatment, care or support is provided “under the licence.”[53] It appears that the licensing provisions permit the provision of treatment, care or support at private psychiatric facilities but that the treatment, care or support is provided under the licence rather than ‘under’ the MH Act.
[51] Mental Health Act 2015 section 222
[52] Mental Health Act 2015 section 226(3)(c)
[53] Mental Health Act 2015 sections 228(6), 229(1), 230(3); See also section 233
65.Other sections of the MH Act provide for information to be given to a person who is to be given treatment, care or support at a mental health facility or a community care facility,[54] communication by each such person with others as specified;[55] respecting the wishes of the person with a mental disorder or mental illness if the person requires treatment, care or support;[56] the making of an advance agreement[57] or an advance consent direction[58] about their treatment, care or support, and for the effect of such an agreement or direction.[59] Those sections do not assist in determining what is treatment, care or support ‘under’ the MH Act.
[54] Mental Health Act 2015 sections 15, 16
[55] Mental Health Act 2015 section 17
[56] Mental Health Act 2015 section 20; see also section 21
[57] Mental Health Act 2015 sections 26, 24
[58] Mental Health Act 2015 section 27
[59] Mental Health Act 2015 sections 28, 30, 31
66.Nor is the issue in this case resolved by reference to the expression ‘under this Act’ where it is used in the MH Act. That expression is used more than 60 times in relation to such matters as:
(a)the principles applying when a function is exercised ‘under’ the MH Act;[60]
(b)giving people information about their rights ‘under’ the MH Act;[61]
(c)the functions of a nominated person,[62] the Chief Psychiatrist,[63] mental health officers,[64] a care coordinator[65] and the Mental Health Advisory Council[66] ‘under’ the MH Act;[67]
(d)what the Tribunal must do in relation to an application to it ‘under’ the MH Act,[68] and before a hearing in relation to a matter ‘under’ the MH Act;[69]
(e)the coordinating director making policies and operating procedures in relation to any administrative functions ‘under’ the MH Act;[70] and
(f)interstate mental health orders made ‘under’ the MH Act.[71]
[60] Mental Health Act 2015 section 6; See the references to section 6 in notes to sections 39, 56, 64, 65, 72, 73, 79, 99, 105, 106, 107, 112, 113, 114, 119, 121, 126, 138, 143, 144, 144C
[61] Mental Health Act 2015 section 15
[62] Mental Health Act 2015 sections 20, 22, 23
[63] Mental Health Act 2015 section 197; See also sections 62, 64, 198, 200
[64] Mental Health Act 2015 section 202
[65] Mental Health Act 2015 sections 205, 207
[66] Mental Health Act 2015 section 239
[67] See also the protection of officials from civil liability for conduct in the exercise of a function ‘under’ the MH Act, Mental Health Act 2015 section 265
[68] Mental Health Act 2015 section 187
[69] Mental Health Act 2015 section 188
[70] Mental Health Act 2015 section 217
[71] Mental Health Act 2015 sections 252, 256
67.The use of ‘under’ in the provisions summarised above is consistent with ‘under’ meaning ‘pursuant to’ or ‘in accordance with.’ That, in turn, supports a conclusion that treatment, care or support ‘under’ the MH Act is provided pursuant to the MH Act and hence is confined to the treatment, care or support provided under an order or other formal action of a type described earlier in these reasons for decision. We note, however, that none of those numerous provisions require the consent of a guardian before treatment, care or support might be given.
Relationship between the GMP Act and the MH Act
68.Sections 7(3)(f) and 70A(1) of the GMP Act refer to power granted to a guardian under that Act being exercised in relation to treatment, care or support ‘under’ the MH Act. Those sections are quoted and discussed earlier in these reasons for decision.
69.The only other potential source of guidance that this Tribunal could find to any relationship between sections 7(3)(f) and 70A(1) of the GMP Act and the MH Act is section 268 of the MH Act which provides:
268 Relationship with Guardianship and Management of Property Act
(1) Despite anything in the Guardianship and Management of Property Act 1991 or an order appointing a guardian, a guardian appointed for a person under that Act—
(a)is not entitled to give consent to electroconvulsive therapy or psychiatric surgery; and
(b)if the person is subject to a community care order—is not entitled to decide anything for the person contrary to any determinations or decisions made in relation to the person by the care coordinator under the community care order (or any related restriction order).
(2) Despite anything in the Guardianship and Management of Property Act 1991, section 70 (ACAT may consent to prescribed medical procedures), the ACAT must not, while exercising its jurisdiction under the Act—
(a)make an order in relation to any consent to electroconvulsive therapy or psychiatric surgery; and
(b)make an order in relation to a person contrary to any community care order (or restriction order) made in relation to the person.
Note In certain circumstances a guardian can consent to a person’s treatment, care or support for mental illness (see Guardianship and Management of Property Act 1991, s 70A).
70.The note to section 268(2) refers to “certain circumstances” in which a guardian can consent to a person’s treatment, care or support for mental illness. Those ‘certain circumstances’ are neither defined nor described by reference to examples. Nor does the note refer to treatment, care or support ‘under’ the MH Act. However, the reference to section 70A of the GMP Act indicates that the guardian’s power to consent in some circumstances is restricted by the operation of that section, which reflects the language of section 7(3)(f) of the MH Act and is the source of the threshold issue for this case. So, we have come full circle without identifying any circumstances in which the consent of a guardian is required before a person can receive treatment, care or support ‘under’ the MH Act.
71.In a written statement to the Tribunal, the PTG contended that:
(a)the MH Act, “in its application, informs the mental health treatment and care of all persons in the ACT”;
(b)the framework of the MH Act “seeks to increase the voice of individuals in this aspect of health care facilitating the development of advanced care documents”;
(c)the objects and concepts of the MH Act “can reasonably be interpreted as applying to all people with a mental illness or disorder and not only those subject to restrictive orders under that Act… because the mechanisms for exercising decision making rights regarding treatment and care within that Act apply to all persons including also those who are engaged voluntarily in treatment for a mental illness with any treating health professional.”
The PTG then contended that using the authority of the GMP Act to consent to mental health treatment and care without consideration of section 70A of the GMP Act seems inconsistent with the intent and with other legislation in the ACT.
72.Those contentions, however, do not compel any reading of ‘under’ the MH Act that is different from the meaning referred to earlier in these reasons.
Legislative history – an overview
73.Having surveyed numerous provisions of the MH Act and the GMP Act, for any circumstances in which section 70A(1) of the GMP Act could apply, the Tribunal considered material that does not form part of the GMP Act to work out the meaning of section 70A.[72]
[72] Legislation Act 2001 sections 141, 142
74.Section 70A was inserted by the Mental Health (Treatment and Care) Amendment Act 2014. The new section commenced:
70A Restrictions on consent by guardian to mental health treatment, care or support
(1) A guardian who has power to give for a person a consent required for medical treatment involving treatment, care or support under the Mental Health (Treatment and Care) Act 1994 may consent to that treatment only if the person—
(a)does not have decision-making capacity under that Act; and
(b)does not have an advance consent direction under that Act authorising the treatment; and
(c)expresses willingness to receive the treatment.
75.The Chief Psychiatrist drew the Tribunal’s attention to the Revised Explanatory Statement for the Mental Health (Treatment and Care) Amendment Bill 2014 which included the following statements about the new section:
A new section is inserted after section 70 (ACAT may consent to prescribed medical procedures) to restrict a guardian’s substitute decision making function to circumstances where the protected person has no decision-making ability and both:
· expresses willingness to receive the treatment; or
· has not given advance consent to the treatment, care or support under an advance consent direction made under the Mental Health (Treatment and Care) Act 1984 as amended by the Bill.
…
There are new conditions on guardians for the giving of consent in relation to mental health treatment, care and support. The primary conditions on the exercise of consent are that the guardian may only give consent where the principal expresses willingness to receive the treatment and that the consent is limited to a maximum period of six months.[73]
[73] Revised Explanatory Statement, Mental Health (Treatment and Care) Amendment Bill 2014 Schedule 1, items [1.50]–[1.53]
76.The explanatory material stated that the purpose of the provision is to “restrict a guardian’s substitute decision making function” and place “new conditions on guardians for the giving of consent in relation to mental health treatment, care and support.” There is no indication in those statements that the restriction would apply only to treatment under the 1984 Act or to circumstances where treatment under that Act required the consent of a guardian. On their own, the explanatory statements suggest that the additional qualifications on a guardian’s power were not intended. But the Tribunal is bound to apply the words inserted by the amendment which has a more limited operation.
77.For completeness, it is appropriate to also note the antecedents of section 7(3)(f). The Guardianship and Management of Property Amendment Act 2001 inserted section 7(3)(e) into the GMP Act in the following terms:
(e) to give, for the person, a consent required for a medical procedure or other treatment (other than a prescribed medical procedure);
78.That paragraph was amended by the Mental Health (Treatment and Care) Amendment Act2014 to omit “(other than a prescribed medical procedure);” and to substitute “(other than a prescribed medical procedure or medical treatment mentioned in paragraph (ea));”. A new section 7(3)(ea) was inserted to provide:
(ea) to give, for the person, a consent required for medical treatment involving treatment, care or support under the Mental Health (Treatment and Care) Act 1994 (other than a prescribed medical procedure);
Note For provisions relevant to a guardian with power under this paragraph, see s 70A (Restrictions on consent by guardian to mental health treatment, care or support)[74]
[74] Mental Health (Treatment and Care) Amendment Act 2014 Schedule 1 item [1.39]
79.The new section 7(3)(ea) was subsequently renumbered section 7(3)(f).
80.Sections 7(3)(f) and 70A of the GMP Act were amended subsequently to refer to the new MH Act.
81.The Explanatory Statement and Revised Explanatory Statement for the Mental Health Bill 2015 each noted that in section 70A of the GMP Act (as well as in sections including section 7(3)) “Mental Health (Treatment and Care) Act 1994” would be replaced with “Mental Health Act 2015.” There was no explanation of any implications or operation of that amendment. Those explanatory statements also referred to amendments to be made to several Acts in ways that are “necessitated” by how those Acts and regulations would “need to interact with” the MH Act. Again, there is no explanation of the implications of the operation of those amendments for the GMP Act and its interaction with the MH Act.
82.If section 70A(1) was intended to apply to any or all forms of ‘treatment, care or support’ as that expression is defined in the Dictionary to the MH Act, the section could have made that clear (as could the counterpart wording in section 7(3)(f) of the GMP Act).
83.The 2014 amendments to sections 7(3)(f) and 70A(1) were quite specific. They did not refer to mental health treatment, care or support generally. The 2015 amendments changed the name of the mental health legislation to which those sections refer but not their substantive terms. The Tribunal is bound by the words that were enacted.
84.The Chief Psychiatrist submitted that, while the introduction of the MH Act and changes to the ACT mental health legislative framework more generally were partly focused on supporting voluntary engagement in treatment, care or support, nothing in section 5 of the MH Act or its provisions more generally purport to establish the only framework for the treatment, care or support of people with a mental disorder or mental illness. In other words, it was submitted, while the MH Act facilitates the treatment of people with a mental disorder or mental illness in certain circumstances (for example, by the making of mental health orders), that is not the only framework under which people can access those services.
85.The Tribunal agrees with that submission. As noted earlier, the MH Act expressly provides for a range of orders and other formal actions in specific circumstances, including after alternative forms of treatment, care or support have been considered but not accessed. The treatment, care or support that is provided in accordance with such orders or other instruments is provided ‘under’ the MH Act. Although alternative forms of treatment, care or support are expressly contemplated by the MH Act, they are not provided ‘under’ the MH Act.
Conclusion
86.The Tribunal has concluded that ‘under’ in the phrase “under the Mental Health Act 2015” in section 70A(1) of the GMP Act means ‘pursuant to’ the MH Act. It is apparent from the survey of the provisions in the MH Act which refer to ‘treatment, care or support’ that:
(a)treatment, care or support which is provided in accordance with a mental health order, or in some other way specified in the MH Act, is treatment, care or support ‘under’ the MH Act;
(b)voluntary mental health treatment, care or support (other than the provision of ECT to voluntary persons) is not provided pursuant to the MH Act and hence is not treatment, care or support ‘under’ the MH Act; and
(c)sections 7(3)(f) and 70A(1) of the GMP Act are superfluous because there are no circumstances in which they could apply.
87.As a consequence, a guardian who has been granted power under section 7(3)(f) of the GMP Act is not required to give consent under section 70A(1) of that Act in relation to a person who is receiving medical treatment ‘under’ the MH Act.
88.Where a person is receiving other treatment for a mental illness, a guardian is to follow the decision-making principles set out in section 4(2) of the GMP Act. Those principles include:
(a) the protected person’s wishes, as far as they can be worked out, must be given effect to, unless making the decision in accordance with the wishes is likely to significantly adversely affect the protected person’s interests;
(b) if giving effect to the protected person’s wishes is likely to significantly adversely affect the person’s interests – the decision-maker must give effect to the protected person’s wishes as far as possible without significantly adversely affecting the protected person’s interests.[75]
[75] Guardianship and Management of Property Act 1991 sections 4(2)(a) and (b)
89.A person’s ‘interests’ include protection of the person from mental harm and prevention of the mental deterioration of the person.[76]
[76] Guardianship and Management of Property Act 1991 sections 5A(a) and (b)
90.In the circumstances of this case, those principles are consistent with the principle in section 6 of the MH Act for people exercising functions under that Act:
(a) a person with a mental disorder or mental illness has the right to have the person’s will and preferences, to the extent that they are known or able to be known, taken into account in decisions made about treatment, care or support.
91.Applying that reasoning to the facts of the present case, the Tribunal has concluded that:
(a)Charles is not receiving treatment, care or support ‘under’ the MH Act; and
(b)the PTG is not subject to the restrictions set out in section 70A(1) of the GMP Act when deciding whether to give consent to the treatment being provided to Charles by the OPMHCT for his mental illness.
92.Interpreting section 70A(1) in that way is consistent with the power granted to the PTG in relation to Charles “to give any consent required for a medical procedure or other treatment including treatment to support his mental health (other than a prescribed medical procedure).” The order was not expressed in the language of section 7(3)(f) of the GMP Act. The brief written reasons in relation to the guardianship order indicated why. They stated that:
[S]ignificant decisions need to be made in the shorter term regarding the medical treatment including treatment to support his mental illness (noting that a mental health order under the Mental Health Act 2015 could not be made because [Charles] is not refusing treatment, care or support) and access to support services.
93.The PTG can exercise a power to consent to the treatment of Charles for his mental illness.
Other issues
94.Given the conclusion reached by the Tribunal in this case it is not necessary to decide:
(a)whether Charles’ guardian could be satisfied that Charles’ “expresses willingness to receive the treatment”; or
(a)whether the requirements of section 58 of the MH Act are met (including that Charles’ “refuses to receive the treatment, care or support”[77]) so that a PTO should be made in relation to Charles.
[77] Mental Health Act 2015 section 58(2)(b)(i)
95.Although the answers to those questions involve an analysis of the facts, that analysis occurs in the context of legislative language. One difficulty that was alluded to in the course of submissions is whether the same set of facts might give rise to apparently inconsistent outcomes under section 70A(1)(c) of the GMP Act and section 58(2)(b)(i) of the MH Act. In other words, it seems that a person who needs treatment for their mental illness would not receive it because they are found not to be expressing ‘willingness’ to receive the treatment but are also be found not to be refusing treatment?
96.As the Tribunal observed in Michael:
Whether a person is refusing treatment, care or support is a question of fact, and sometimes can be difficult to decide. Views sometimes differ, with cause, including between members of the Tribunal.[78] When considering whether to make a further PTO, a person may seem to be willingly taking medication and attending appointments, but is doing so only because there is a PTO in place. The person may be promising to comply with all requests regarding treatment if no PTO is made, but there may be reasonable doubt as to whether that will occur, especially where the person does not agree with a diagnosis. The Tribunal, in In the matter of BC[79] and In the matter of FG,[80] dealt with the complexities of refusal. A guardian would often be well-placed to provide factual evidence and to make submissions about whether there is refusal and hence whether a PTO can be made.[81]
[78] In the matter of FG [2018] ACAT 134 at [16] and [49]
[79] In the matter of BC [2018] ACAT 67
[80] In the matter of FG [2018] ACAT 134
[81] In the matter of Michael [2020] ACAT 8 at [56]
97.The Tribunal continued:
Refusal can also vary according to the proposed treatment. Patients are often willing to receive one kind of medication and sometimes request it,[82] but are opposed to others. Dialogue between the person, the treating team and a guardian periodically produces resolution and willingness to receive treatment of an appropriate kind. If that occurs, the PTO must be revoked because the pre-condition of refusal is no longer met.[83]
[82] In the matter of FG [2018] ACAT 134 at [123]
[83] In the matter of Michael [2020] ACAT 8 at [74]
98.Given that this Tribunal was not able to identify circumstances in which section 70A of the GMP Act might operate, the legislature is invited to consider whether section 70A (and section 7(3)(f) of the GMP Act) should be recast or replaced to serve some purpose. If section 70A(1) is to be amended, it might be worth considering aligning the language of both the GMP Act and the MH Act in an attempt to avoid the difficulties referred to in [95] from arising.
99.Although the conclusions set out above deal with the issue before the Tribunal, they do not necessarily resolve the broader issues raised by the PTG in the course of the hearing of these proceedings.
100.The PTG’s written submission ranged far beyond the specific issue in this case and the statutory provisions which are the focus of this case.
101.Having referred to section 28(5) of the MH Act (noted at [60] above), the PTG stated that in preparing a guideline for the relevant unit, the PTG sought clarity on the issue as affecting the following three groups:
(b)People with an intellectual disability and mental illness who are assessed as unable to offer informed consent to mental health treatment and care and who have an order in place for medical, health and welfare decisions. The PTG’s preference has been to seek an additional mental health authority to such an order and have consent sought (by paper exchange) on a maximum six-monthly basis for mental health treatment. Where the PTG is aware that a person states or demonstrates an unwillingness to accept prescribed medication, guardians do not offer consent on behalf of that person.
(c)People with a mental illness for whom an order has been made under the GMP Act and who consent to mental health treatment and care and may therefore be able to consent on their own behalf to a proposed treatment. That might include reasonable accommodation being made by the treating team and may be a path to independent decision-making in all matters.
(d)People with a mental illness who do not consent to treatment and for whom a PTO may be issued with appropriate review times. Such people might revert to the group mentioned in (b) as a step to independent decision-making in all areas.
102.The written submissions from the PTG also suggested that the outcome of this case might have implications for other decision-making. In particular, the PTG sought:
(a)the view of the Tribunal on the legality of consent where a distinction must be made between a willing action and a stated preference and equitable access to the safeguards of any substitute decision which might be made by the PTG; and
(b)clarification on the consistency of any order with other legislation in place in the ACT, including the Senior Practitioner Act 2018.
103.Apart from providing the reasoning outlined above in relation to the outcome in this case and some of the implications of that outcome, the Tribunal does not consider it appropriate in this case to address the broader issues raised by the PTG. Those issues are important, and the practices adopted by the PTG are significant for the people who are assisted by the work of the PTG. However, the broader issues raised by the PTG do not arise from the circumstances of this case. Nor were there any submissions in relation to the provisions of other legislation such as the Senior Practitioner Act 2018 which would enable the Tribunal to express any definitive opinion or provide informed advice on those issues. Accordingly, the Tribunal declines the request to do so.
Orders
104.For the reasons given, the application for a psychiatric treatment order in relation to Charles is dismissed.
………………………………..
President G Neate AM
For and on behalf of the Tribunal
Date(s) of hearing 14 January 2021
20 January 2021
Applicant: Ms A Banks, ACT Government Solicitor
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