In the matter of FG - [2018] ACAT 134

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

IN THE MATTER OF FG (Appeal) [2018] ACAT 134

AA 42/2018 (MH 108/2012)
Catchwords: APPEAL – Mental health – Appeal against a psychiatric treatment order (PTO) - whether statutory conditions for PTO were met – whether the person was refusing treatment – meaning of “refuses” – whether he was a risk to himself – whether he was at risk of mental deterioration – role of appeal Tribunal – whether evidence of the person’s behaviour in previous years was relevant to making of PTO – whether evidence of person’s behaviour subsequent to PTO was relevant to appeal – original decision confirmed

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 39, 40, 79
Mental Health Act 2015 ss 2, 5, 6, 7, 8, 15, 16, 24, 36, 51, 56, 57, 58, 62, 64, 77, 79, 194, 197, Dictionary
Legislation Act 2001 ss 138, 139, 140

Cases cited:House v R [1936] HCA 40
In the Matter of BC [2018] ACAT 67
In the matter of ED [2017] ACAT 84
LB v Mental Health ACT [2006] ACTSC 15
Rejman v Dunsmore (1983) 32 SASR 151

Tribunal:President G Neate AM
Presidential Member G McCarthy
Senior Member Dr P Norrie

Date of Orders:  19 November 2018
Date of Reasons for Decision:         24 December 2018
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          AA 42/2018

BETWEEN:
FG
Appellant

AND:
CHIEF PSYCHIATRIST
Respondent

TRIBUNAL:President G Neate AM
Presidential Member G McCarthy
Senior Member Dr P Norrie

DATE:19 November 2018
ORDER

The Tribunal orders that:

The decision of the Tribunal on 2 August 2018 to make a psychiatric treatment order is confirmed.
Reasons for decision to be published.

……………Signed…………
President G Neate AM
For and on behalf of the Tribunal

REASONS FOR DECISION

On 2 August 2018, the ACT Civil and Administrative Tribunal (the original Tribunal) made a psychiatric treatment order (PTO) in relation to FG[1] to have effect for 6 months, unless sooner revoked. Under the PTO, FG is ordered to comply with any determination made by the Chief Psychiatrist or her delegate under section 62 of the Mental Health Act 2015 (MH Act).
[1] The letters FG have been used to preserve the anonymity of the person the subject of the PTO consistent with section 40 of the ACT Civil and Administrative Tribunal Act 2008 and section 194 of the Mental Health Act 2015. The letters bear no resemblance to the initials of the subject person’s name
FG appealed against the PTO. He contended that the original Tribunal was in error in making it. He asked for the PTO to be set aside and for the initial application for that order to be dismissed.
His appeal was heard by the Tribunal as presently constituted (the appeal Tribunal) on 19 November 2018. FG appeared on his own behalf, with a representative of the Public Advocate as his support person.
At the conclusion of the hearing, the appeal Tribunal advised the parties that the decision of the original Tribunal was confirmed and the reasons for the appeal Tribunal’s decision would be published later. These are those reasons.

Background to the PTO

FG is 34 years of age. He described himself to the Tribunal as an award-winning filmmaker, philosopher graduate, and journalist.
FG has had contact with the mental health system in various parts of Australia since June 2011, soon after he returned to Australia from overseas. He was admitted for treatment in Victoria and Western Australia in 2011. He was subsequently admitted involuntarily to the adult mental health unit at The Canberra Hospital in April 2012, and was briefly held under an emergency detention order at The Canberra Hospital in 2013. He was admitted to psychiatric care in New South Wales in 2013 or 2014, and on 12 April 2016 was admitted to a Mental Health Unit in Queensland where he was made the subject of an involuntary treatment order. He was discharged on 6 May 2016, after which he was seen as a voluntary outpatient.
Having subsequently spent about 18 months overseas, FG came to Canberra in about May 2018.
He was referred to City Mental Health by his general practitioner and was seen by mental health clinicians on 15 May 2018 and 1 June 2018 before his psychiatry assessment on 6 June 2018.
The application for the PTO dated 19 June 2018 was prepared by a psychiatric registrar and signed by a consultant psychiatrist. It described FG’s initial presentation and his consistent insistence that he did not have a mental illness or need any antipsychotic or other psychiatric medications. The application expressed the doctors’ concerns for his long-term welfare if he remained chronically unwell, and referred to associated risks which were discussed in more detail in the application. That document recorded the history of FG’s contact with the ACT Mental Health Service since April 2012 and provided expert opinion evidence in relation to each of the statutory conditions for the making of a PTO (set out below).
In summary, so far as is relevant to the matters raised in this appeal, we note that the application for the PTO included evidence to support findings that FG:
(a)has a mental illness;
(b)does not believe he has a mental illness;
(c)lacks decision-making capacity in relation to decisions about his treatment, care or support;
(d)is refusing to trial any antipsychotic medication due to his conviction that he does not have a mental illness and that any treatment will be unjust, unfounded and cause harm; and
(e)is at risk of serious harm to himself and of serious mental or physical deterioration because of his mental illness.
The original Tribunal heard evidence and submissions in relation to the application for a PTO on 12 July and 2 August 2018. FG was present on both occasions and was represented by a solicitor from Legal Aid.

Statutory provisions for making a PTO

Section 58(2) of the MH Act sets out the conditions that must be met before the Tribunal may make a PTO. It states:
(2) The ACAT may make a psychiatric treatment order in relation to the person if—
(a)the person has a mental illness; and
(b)either—
(i)the person does not have decision-making capacity to consent to the treatment, care or support and refuses to receive the treatment, care or support; or
(ii)the person has decision-making capacity to consent to the treatment, care or support, but refuses to consent; and
(c)the ACAT believes on reasonable grounds that, because of the mental illness, the person—
(i)is doing, or is likely to do, serious harm to themself or someone else; or
(ii)is suffering, or is likely to suffer, serious mental or physical deterioration; and
(d)in relation to a person mentioned in paragraph (b) (ii)—the ACAT is satisfied that the harm or deterioration, or likely harm or deterioration, mentioned in paragraph (c) is of such a serious nature that it outweighs the person’s right to refuse to consent; and
(e)the ACAT is satisfied that psychiatric treatment, care or support is likely to—
(i)reduce the harm or deterioration, or the likelihood of the harm or deterioration, mentioned in paragraph (c); or
(ii)result in an improvement in the person’s psychiatric condition; and
(f)…; and
(g)the ACAT is satisfied that the treatment, care or support to be provided under the psychiatric treatment order cannot be adequately provided in another way that would involve less restriction of the freedom of choice and movement of the person. (emphasis added)

Reasons for the PTO

The original Tribunal made the PTO by a majority decision.[2] The reasons for that decision can be ascertained from the written statement of reasons which followed the order, and from the transcript of the private hearing[3] on 2 August 2018.
[2] The psychiatrist member was of the view that the PTO should not be made
[3] MH Act section 194; ACT Civil and Administrative Tribunal Act 2008 section 39
In summary, the original Tribunal found that FG:
(a)has a mental illness;
(b)does not have decision-making capacity;
(c)refuses the treatment determined in relation to himself;
(d)is likely to do serious harm to himself when unwell; and
(e)is likely to suffer serious deterioration of his mental state functioning if untreated.
The original Tribunal was also satisfied that:
(a)psychiatric treatment, care or support is likely to reduce the likelihood of that harm or deterioration and is likely to result in an improvement in his psychiatric condition; and
(b)the treatment, care or support to be provided under the PTO cannot be adequately provided in another way that would involve less restriction of his freedom of choice and movement.
The oral reasons delivered on 2 August 2018 indicated that, although this was a very difficult decision, the three members of the original Tribunal agreed in relation to all the matters summarised above apart from whether FG ‘refuses to receive the treatment’ determined in relation to him.[4]

Grounds of appeal

[4] Transcript of proceedings 2 August 2018 page 28

In his application for appeal, FG contended that the original Tribunal erred in its decision to make the PTO because there was insufficient evidence to satisfy all of the elements under section 58(2) of the MH Act. In particular, he contended that:
(a)there was no evidence to suggest that he was refusing treatment, and the evidence before the original Tribunal confirmed that he had been compliant with the directions of the treating team (see section 58(2)(b)(i)); and
(b)there was insufficient evidence to satisfy the requirements of section 58(2)(c)(i) and (ii) as there was no evidence to show that he was a serious risk to himself or others, or that he was at risk of deterioration.

Role of the appeal Tribunal

Section 79(3) of the ACAT Act provides that a party to an original application may, by application, appeal the decision to the Tribunal “on a question of fact or law.” That provision shapes the requirements and limitations of the appeal.
The role of the appeal Tribunal is different from the role performed by the original Tribunal. An appeal Tribunal must determine whether the decision appealed against is wrong because the original Tribunal fell into an error of law, made a finding of fact that was clearly wrong or exercised a discretion on a wrong principle or in a way that was clearly wrong. Ordinarily, if there has been no further evidence admitted or no relevant change in the law, an appeal Tribunal can exercise its appellate powers only if satisfied that there was an error on the part of the original Tribunal. The appeal Tribunal will also give proper allowance to the advantage of the original Tribunal who saw and heard the witnesses, so that ordinarily, facts found based on the assessment of witnesses will not lightly be overturned.
In performing its role, the appeal Tribunal needed to focus on the mental state and other circumstances of FG as at 2 August 2018, as shown by the evidence available to the original Tribunal on that date. The appeal Tribunal needed to decide whether, at that date and on that evidence, the original Tribunal erred in finding that each of the conditions for the making of a PTO were satisfied.
At the hearing of the appeal, FG sought to demonstrate that his circumstances have changed since the PTO was made. He referred to the fact that he now acknowledges his mental illness and wants the correct treatment, now lives in a unit (rather than being homeless), has a routine, and voluntarily sought and obtained prescribed oral medication for his mental illness. For the reasons outlined above, those changes in his circumstances of that nature since the making of the PTO might be relevant to a review of the PTO under section 79 of the MH Act, but have no bearing on whether the original Tribunal was in error in making the PTO on the basis of evidence before it at that time.
The difference between the role of the appeal Tribunal and that of the original Tribunal is highlighted by comparison with the provision in section 79 of the MH Act concerning reviews of mental health orders made by the tribunal. The parts of that section that are relevant for present purposes state:
79     Review of mental health order
(2)     The ACAT must review a mental health order in force in relation to a person if the person, or the person’s representative, applies for the review on the basis that the order, or part of the order, is no longer required.
…
(5)     If the ACAT is satisfied that a person in relation to whom a psychiatric treatment order or community care order is in force is no longer a person in relation to whom the ACAT could make a psychiatric treatment order or community care order, the ACAT must revoke all the mental health orders in force in relation to the person.
(6)     In any other case, the ACAT may, if appropriate, do any of the following:
(a)confirm, amend or revoke any of the mental health orders in force in relation to the person;
(b)make additional mental health orders in relation to the person;
(c)make an assessment order in relation to the person. (emphasis added)
A comparison between the provisions in section 79 and the role of an appeal Tribunal illustrates the temporal and conceptual differences between the appeal and review functions.
First, an appeal Tribunal considers the circumstances, evidence and submissions before the original Tribunal at the time the order appealed against was made. The appeal Tribunal is not concerned with subsequent events and, in particular the circumstances of the appellant at the time of the appeal hearing. By contrast, a Tribunal hearing an application for review of a mental health order is required to consider the circumstances of the subject person at the time that the review is undertaken.
Second, as described in detail above, the appeal Tribunal has to decide whether the original Tribunal was in error when making the PTO, not whether the appeal Tribunal might have decided the matter differently at the time when the PTO was made. By contrast, a Tribunal, when hearing an application for review of a mental health order, has to decide whether, at the date of the hearing of the review, the subject person is ‘no longer’ someone for whom the Tribunal could make a PTO.
In that context we consider the grounds of appeal respectively in relation to the original Tribunal’s findings that FG:
(a)‘refuses to receive’ the treatment determined in relation to him; and
(b)is likely to do serious harm to himself when unwell and is likely to suffer serious mental deterioration.

Refusal to receive treatment

What the original Tribunal decided

The original Tribunal found that, in the terms of section 58(2)(b)(i) of the MH Act, FG ‘refuses to receive’ the medical treatment determined in relation to him.
The original Tribunal reached that conclusion despite statements from FG that he would comply with treatment[5] and evidence that he was, at the time of his hearing, engaging voluntarily with mental health services following his discharge from The Canberra Hospital.[6]
[5] Transcript of proceedings 2 August 2018 pages 9-11 and 22
[6] Transcript of proceedings 2 August 2018 pages 11 and 13
In their statement of reasons for the PTO, the original Tribunal wrote that FG:
refuses the treatment determined in relation to himself because although he says he will accept treatment and in the very recent past has been accepting treatment, he has a seven year history of ceasing treatment after advising health authorities he will continue with treatment. The Tribunal considers his current compliance with treatment is of a short duration and against the extensive history is of the view that he refuses treatment.
The oral reasons, delivered for the majority of the original Tribunal on 2 August 2018, included the following statement:
…when we look at those medical records, we see a history of a person who continually says to the authorities that he will accept treatment and then it all goes wrong and he’s not involved in treatment any more … the best predictor of future behaviour is past behaviour…[7]
[7] Transcript of proceedings 2 August 2018 page 29
Having referred to records at various hospitals in different parts of Australia between June 2011 and July 2016, the majority of the original Tribunal was:
satisfied on the basis of that record that no matter what FG says and how persuasive he is and genuine … we’re confident that with a psychiatric treatment order, because you are a good person and a rule-conscious person you will comply with that and you won’t be lost to treatment while that order is in place.[8]
[8] Transcript of proceedings 2 August 2018 pages 29-30
The majority stressed their acknowledgment that FG was honest and genuine when he told the original Tribunal that he was going to engage in treatment. However, the original Tribunal observed, “life interferes with that.”[9]
The appellant’s submissions
[9] Transcript of proceedings 2 August 2018 page 30
FG appealed from that part of the original Tribunal’s decision on the basis that there was no evidence to suggest that he was refusing treatment, and the evidence before the original Tribunal confirmed that he had been compliant with the directions of the treating team.
The submissions made by and on behalf of FG were to the effect that he was compliant in receiving treatment up to the hearing by the original Tribunal. In particular, he complied with the medication being administered by depot injection as that was the best form of treatment while he was homeless and had no routine, and it was difficult for him to attend the City Mental Health Unit while living in a tent on a hillside.
FG submitted that the evidence of his compliance in receiving treatment at that time meant that the original Tribunal could not be satisfied that, at that time, he ‘refuses to receive the treatment.’ The majority of the original Tribunal was in error, he said, in not relying on, or giving sufficient weight to, that evidence and instead relying on historical evidence of his non-compliance with treatment, care or support.
As noted earlier, FG stated that he wants to get well and has taken steps to obtain oral medication which he takes daily (in addition to his monthly injection).
In addition to submissions about the nature of incidents preceding the PTO and FG’s history of non-compliance, there was some evidence at the appeal hearing about his personality and beliefs. The Public Advocate’s representative described him as a philosopher and free spirit who resists order and tries to buck the system. At that point in the hearing FG stated “Freedom or death.”
The respondent’s submissions
In oral and written submissions, the Chief Psychiatrist contended that the original Tribunal was correct to decide the application as it did, and that the PTO should continue.
It was submitted that the question whether FG ‘refuses to receive the treatment’ in the terms of section 58(2)(b)(i) of the MH Act is a question of law. A decision about whether that criterion is satisfied, the Chief Psychiatrist submitted, should not be made subjectively by reference to the situation at or immediately before the hearing by the original Tribunal. Adopting that approach would frustrate the purpose of the Act. Rather, the original Tribunal had to assess the evidence objectively.
In support of the submissions about the operation of section 58(2)(b)(i), the Chief Psychiatrist referred to the Tribunal’s decision in In the matter of BC[10] (BC) when the Tribunal made a PTO in circumstances where there was evidence that the subject person was compliant with his treatment regime and expressed willingness to take medication. The person did not appear to have a history of non-compliance, and had a network of family and other support. However, the Tribunal determined that he refused treatment on the basis that he did not agree with his psychiatrist’s diagnosis of mental illness and had indicated that he would not reliably take medication if he disagreed with the diagnosis.
[10] In the matter of BC [2018] ACAT 67

The Chief Psychiatrist submitted that the present case for a PTO was stronger than in BC because of FG’s history of non-compliance with treatment. There was evidence of his non-compliance before the hearings by the original Tribunal on 12 July and 2 August 2018. Particular reference was made to the following instances.
On 6 June 2018, during a psychiatric assessment by a psychiatric registrar, having shown no insight into potentially having a mental illness, FG insisted that “there is no way I will go on any antipsychotic.”
On 19 June 2018, a psychiatrist and a psychiatric registrar reported that FG was refusing to trial any antipsychotic medication due to his conviction that he did not have a mental illness and that any treatment would be unjust, unfounded and cause harm.
On 4 July 2018, on presentation at The Canberra Hospital he was agitated, aggressive and intense, and expressed systematised delusional beliefs. He was refusing to take any medications and stated that he would not take medications that were prescribed to him by his inferiors.[11]
[11] Transcript of proceedings 12 July 2018 page 11
The Chief Psychiatrist submitted that the PTO did not arise from an incident at the Centrelink office on 4 July 2018, when police were called because FG refused to leave the premises after a disagreement with staff. He was taken to The Canberra Hospital and held in the Adult Mental Health Unit.
There was no dispute that FG was compliant on 7 July 2018 and 2 August 2018. However, the Chief Psychiatrist referred to evidence before the original Tribunal on 2 August 2018 that, after a psychiatric review on 31 July 2018, FG was agreeing to have further treatment because of fears of ‘further torture’, for example by going back to hospital, not because he wanted to receive the treatment
In the Chief Psychiatrist’s submission, the finding that FG’s current compliance with treatment was of short duration, in light of his history since 2011 of ceasing treatment after advising health authorities that he would continue, was reasonably open to the original Tribunal. She submitted that the appeal Tribunal should, give proper allowance to the original Tribunal’s evidentiary advantage and should not overturn the decision merely because another decision may also have been reasonable on the facts.
The Chief Psychiatrist submitted that the evidence before the original Tribunal showed that:
(a)FG had no insight into his mental illness, to the point that he did not accept that he had a mental illness;
(b)he had recently and repeatedly refused medication;
(c)his recent compliance with treatment appeared to be on the basis that it was the lesser of two evils, as he wished to avoid returning to hospital, rather than as a result of insight into his illness;
(d)he had a history of being discharged from hospital psychiatric wards in the expectation that he would continue treatment voluntarily, but each time had quickly lost contact with the services. Consequently, he had never taken anti-psychotic medication long-term outside restrictive environments; and
(e)he was at a higher than normal risk of non-compliance as he had no fixed address and it would be difficult to follow up with him if he missed appointments.
The Chief Psychiatrist submitted that, although the original Tribunal described its decision as “a very difficult decision”, and the decision was made by a majority of the Tribunal, it was made following a thorough and careful review of the totality of the evidence.
She also submitted that FG was legally represented, and the evidence was reliable and properly tested. Accordingly, the decision of the original Tribunal should not be disturbed.
Consideration and conclusion
In the circumstances of this appeal, and applications for PTOs generally, the requirement in section 58(2)(b)(i) prompts the following questions:
(a)What does ‘refuses’ mean in this section of the MH Act?
(b)By reference to what date must the issue whether or not someone ‘refuses’ be decided?
(c)What might be refused?
(d)How might refusal be evident?
(e)Why might someone refuse?
Our answers to those questions are set out below.
When those questions are answered it becomes more clear that the history of whether a person received or refused to receive the treatment, care or support might be used to inform a decision whether that component of section 58(2)(b)(i) is satisfied.
Having considered that issue in terms of section 58(2), it will be appropriate to consider also the context and purpose of the relevant provisions of the MH Act.
Meaning of ‘refuses’
The word ‘refuses’ is not defined in the MH Act or the Legislation Act 2001. In our view, it should be given its ordinary English meaning. The Macquarie Dictionary[12] defines ‘refuse’ as meaning “to decline to accept (something offered)”, “to express a determination not (to do something)”, “to decline to submit to”, and “to decline acceptance, consent or compliance.” The Australian Concise Oxford Dictionary[13] defines ‘refuse’ as “say or convey by action that one will not accept or submit to or give or grant or gratify or consent”.
[12] Macquarie Dictionary (Pan McMillan, 7^th edn, 2017)
[13] The Australian Concise Oxford Dictionary of Current English (Oxford University Press, 1987)
For the purpose of section 58(2)(b)(i), a person refuses to receive the treatment, care or support if they decline to receive it, or express a determination not to receive it, or an unwillingness to receive it, whether by action or words.
That meaning seems to include a notion of voluntariness which might ordinarily be premised on a person making an informed choice. In other words, a person would make an informed decision to refuse treatment. However, in our view, that approach is not appropriate because section 58(2)(b)(i) applies where the subject person does not have decision-making capacity to consent to the treatment, care or support. Refusal should be objectively assessed by reference to what the person says or does.
Section 7 of the MH Act sets out the circumstances in which a person has capacity (with assistance) to make decisions in relation to their treatment, care or support for a mental illness. A person has decision-making capacity if they can:
(a)      understand when a decision about treatment, care or support for the person needs to be made; and
(b)     understand the facts that relate to the decision; and
(c)     understand the main choices available to the person in relation to the decision; and
(d)      weigh up the consequences of the main choices; and
(e)      understand how the consequences affect the person; and
(f)       on the basis of paragraphs (a) to (e), make the decision; and
(g)      communicate the decision in whatever way the person can.
The MH Act expressly provides that a person must not be treated as having decision-making capacity to consent to the provision of treatment, care or support only because the person complies with the provision of the treatment, care or support.[14]
[14] MH Act section 8(f)
Consequently, the refusal of a person to whom section 58(2)(b)(i) applies might arise in circumstances where they do not understand that a decision about their treatment needs to be made, or understand the consequences for them of not receiving the treatment.
Those circumstances can be contrasted with section 58(2)(b)(ii) which applies where a person has decision-making capacity to consent to the treatment, care or support but refuses to consent.
The nature and basis of refusal in those two circumstances needs to be borne in mind by the Tribunal when deciding whether to make a PTO.
When must refusal be decided?
In a practical sense, for each application for a PTO there are two dates where refusal should be assessed – the date of the application and the day it is decided.
(a)When making an application for a PTO, the applicant doctor will need to record in writing whether the subject person refuses to receive the treatment, care or support, and should provide some information about that refusal. That assessment is necessary for the purpose of making the application, but cannot determine the outcome.
(b)The determinative date is the date when the Tribunal decides whether to make a PTO. The facts and circumstances described in section 58(2) must exist at the time the decision is made, irrespective of whether they existed at the time the doctor made the application.
It is commonly the case that the subject person refuses the treatment, care or support on both dates. However, it is possible that between the date of the application and the date of the Tribunal hearing, the person will stop refusing and will voluntarily receive the treatment, care or support. In the latter case, an application for a PTO could be refused, without any suggestion that the application should not have been brought, if the Tribunal is satisfied that the person’s attitude to receiving treatment has genuinely changed.
The possibility that a person might stop refusing during the term of a PTO is one of the factors that underpins the provision for a review of a PTO, discussed above (see [23] to [26]). A person who accepts treatment voluntarily after a PTO is made would have a ground for seeking a review of the PTO. Alternatively, the person’s treating doctor would be obliged to seek the revocation of the PTO under section 64 of the Act because, for that reason, the person is no longer a person in relation to whom the Tribunal could make a PTO.
What might be refused?
The MH Act refers to refusal to receive “the treatment, care or support”. The Dictionary to the MH Act provides that:
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
1support to improve social confidence and integration
2assistance to improve work skills
Two aspects of the phrase “the treatment, care or support” in section 58(2) need to be borne in mind.
First, for these purposes. “the treatment, care or support” refers to the treatment, care or support to be provided under a PTO, an outline of which should be set out in the application for a PTO.
The Chief Psychiatrist is responsible for the treatment, care or support of a person to whom a PTO applies.[15] The treatment, care or support is to be provided under the MH Act by a treating team of mental health professionals and, potentially, another person who is the person’s current mental health professional.[16] It might be provided at a facility[17] or in the community.[18] An application for a mental health order must include a plan setting out the proposed treatment, care or support of the subject person.[19]
[15] MH Act section 62(1); see also section 197
[16] MH Act section 24
[17] MH Act sections 15(1) and 16
[18] MH Act section 15(2)
[19] MH Act section 51(3)(b)
In making a mental health order in relation to a person, the Tribunal must take into account a plan for the proposed treatment, care or support of the person and whether the person consents, refuses to consent or has the decision-making capacity to consent to a proposed course of treatment, care or support[20] and any alternative treatment, care or support available.[21]
[20] MH Act section 36(1(a) and (b)
[21] MH Act section 56(1)(h)
Sometimes it is easier to ascertain a person’s response to the proposed treatment, care or support where the person has been the subject of one or more PTOs previously. In the case of the first application for a PTO following limited contact between the person and the ACT mental health system, it might be more difficult for the Tribunal to make that assessment.
In that context, the criterion in section 58(2)(b) can be understood as allowing the consideration of a person’s history.
Second, the phrase “treatment, care or support” is expressed disjunctively. The ‘or’ is significant. Refusal to accept any one of those satisfies this precondition for the making of a PTO. Although in many cases, including the present appeal, the focus is on the provision of medical treatment, that is not the only form of assistance that a particular person might receive or refuse to receive. Also, it is not to the point that a person is not refusing one aspect of their treatment if they are refusing another aspect of the proposed treatment, care or support.[22] For example, attending appointments for review is an important part of treatment. Refusing to attend is significant because a review can inform what is appropriate medication from time to time.
Forms of refusal
[22] See In the matter of ED [2017] ACAT 84 [49]
Refusal can be evident in many ways. As the dictionary definitions illustrate, it can be by statement or action. It could include a spoken or written determination not to receive treatment, physical resistance to a form of treatment, failure to keep appointments for treatment, or the avoidance of a treating team which has come to the person’s residence to provide treatment.
Refusal to receive treatment can be masked by superficial compliance to create an impression that the person voluntarily receives the treatment when they do not. For example, a person might receive treatment, not because they are willing to do so but because they are subject to an emergency detention order or a PTO and recognise that they have little if any choice, particularly if action can be taken if they breach an order.[23] Another person might decide to receive treatment only for so long as necessary to create the appearance of compliance so that the requirement of section 58(2)(b)(i) is not met and they are no longer required to receive treatment involuntarily. They can then refuse treatment, with potentially deleterious consequences to their mental health. Hence, a person’s refusal might be evident by necessary implication through their conduct.[24]
Reasons for refusal
[23] See MH Act section 77
[24] Rejman v Dunsmore (1983) 32 SASR 151 [159]
A person might refuse treatment generally because they do not consider that they need treatment, particularly if they do not consider that they have a mental illness. They might refuse a particular form of treatment because they disagree with the diagnosis that they have a particular type of mental illness.[25] From a medical viewpoint, the basis for such refusal might be ill-informed or misguided. Where the subject person does not have decision-making capacity (including for example, because they do not understand the factual basis on which the treatment was determined or the consequences of refusing the treatment), such explanations for refusal are not surprising.
[25] See In the matter of BC [2018] ACAT 67 [18], [21]-[23] and [25]
Other explanations for refusal could include an antipathy to the way in which treatment is administered (such as depot injections rather than oral medication) or the perceived or actual side effects of medication. A person might resist or refuse a particular type of treatment (such as a specific form of medication) because they consider that it is not assisting their recovery.
These issues remain tangential to the essential question: is the person refusing to receive the treatment, care or support.
Resolving the issue
Having identified the circumstances in which section 58(2)(b)(i) operates, the question is what is the temporal scope of ‘refuses to receive’. In particular:
(a)is it confined to the observed behaviour and expressed views of the person at the time when the Tribunal is considering whether to make a PTO; or
(b)in cases where clear evidence of previous behaviour and attitudes is available, can that history be taken into account; and
(c)if the person’s history can be considered for this purpose, how far back in time can the Tribunal go when deciding whether a person ‘refuses’ to receive the treatment, care or support?
In deciding this issue, it is appropriate, first, to consider section 58(2)(b)(i) in the context of section 58 as a whole.
The making of a PTO is in part a predictive exercise. In ascertaining whether to make a PTO and the duration of it, the Tribunal is required to decide not only whether a person satisfies the statutory criteria at the date of the hearing but whether the person is likely to continue to do so for a period of up to 6 months. Some criteria, particularly those in section 58(2)(c), (d) and (e), make the predictive nature of the task explicit. It seems to be implicit in section 58(2) generally, given that the Tribunal may make an order for up to 6 months, and because of the provisions for revocation (section 64) and review (section 79) discussed earlier in these reasons.
As noted earlier, section 58(2)(b)(i) applies when the person does not have decision-making capacity to consent to the treatment, care or support. In that context, the issue is whether the person refuses ‘to receive’ the treatment, care or support. By contrast, a person to whom section 58(2)(b)(ii) applies has decision‑making capacity but refuses ‘to consent’ to the treatment, care or support.
Given their lack of decision-making capacity at the relevant time, the assessment of whether the person is refusing (and would continue to refuse) could be informed by their past history of actions and words in relation to treatment, care or support.
That and the range of other factors which the Tribunal has to consider[26] when deciding whether to make a PTO support such a conclusion.
[26] See [55] to [76] above
Second, section 58(2)(b)(i) should be considered in a broader statutory context than section 58.
Section 58 is located in Part 5.4 of the MH Act which deals with PTOs. Part 5.4 is within Chapter 5 which deals with mental health orders. The term ‘mental health order’ is defined to mean “a psychiatric treatment order, a community care order or a restriction order.”[27] Part 5.3 is headed ‘Making of mental health orders – preliminary matters’, and includes section 56 which states, in part:
[27] MH Act section 2 (Dictionary)
What ACAT must take into account – mental health order
(1) In making a mental health order in relation to a person, the ACAT must take into account the following:
…
(b)whether the person consents, refuses to consent or has the decision-making capacity to consent, to a proposed course of treatment, care or support;
…
(i)any relevant medical history of the person.
Section 56(1)(b) indicates that, when making a PTO, the Tribunal is looking to the future and has to decide whether a person refuses to consent to a ‘proposed’ course of treatment, care or support. That assessment would ordinarily include the views expressed by the person orally, in writing or by their behaviour. That assessment might also be informed by the person’s past statements or actions.
Whether or not section 56(1)(b) bears that interpretation, section 56(1)(i) expressly requires the Tribunal to take into account “any relevant medical history of the person”. Where that medical history includes any previous treatment of the person’s mental illness, the information about whether or not the person previously refused to receive the treatment would form part of that medical history and must be taken into account by the Tribunal when deciding whether to make a PTO.
Again, it needs to be stressed that the date on which the Tribunal assesses whether the person ‘refuses to receive treatment, care or support’ is the date of the decision whether to make a PTO. Section 56(1)(i) does not alter that, but requires the Tribunal to make a decision on that date informed by the person’s medical history.
By comparison, section 85(1)(a)(ii) contains a condition for a doctor authorising the involuntary detention and treatment, care or support of a person for a period not exceeding 3 days. The doctor must have reasonable grounds for believing that the person “requires immediate treatment, care or support” and the person “has refused to receive” that treatment, care or support.

In reasons for a decision about whether the Tribunal should extend such a period of involuntary detention, the Tribunal wrote:[28]
Section 85(1) is silent as to when the refusal needs to have occurred, but in my view it needs to have occurred at a time relevant to the need for detention. That might be at a time that led to the person being taken to an approved mental health facility under section 80(2) of the Act or at any later time but not a time prior. The refusal cannot be historic.
[28] In the matter of ED [2017] ACAT 84 [50]
Third, as noted earlier, it is permissible to consider the purpose of the MH Act when deciding such matters. It is useful to commence this part of the analysis by reference to sections 139 and 140 of the Legislation Act 2001. Section 139(1) provides:
(1) In working out the meaning of an Act,[29] the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.
The provision of an Act must be read in the context of the Act as a whole.[30]
[29] Section 138 of the Legislation Act 2001 provides that “working out the meaning of an Act” means—
(a)resolving an ambiguous or obscure provision of the Act; or
(b)confirming or displacing the apparent meaning of the Act; or
(c)finding the meaning of the Act when its apparent meaning leads to a result that is manifestly absurd or is unreasonable; or
(d)finding the meaning of the Act in any other case.
[30] Legislation Act 2001 section 140
In ascertaining the purpose of the MH Act, it is appropriate to consider in particular the long title, the objects of the Act (section 5) and the principles applying to the Act (section 6).
The long title 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 wellbeing, and for other purposes
For the purposes of this appeal it is appropriate to make two observations about the purpose of the legislation (as illustrated by the long title, objects and principles) as a means of working out the meaning of section 58(2)(b)(i).
First, the making of a PTO is part of the scheme of the Act:
(a)to provide for the treatment, care or support of a person with a mental illness;[31]
(b)to promote the recovery of a person with a mental illness;[32]
(c)to enable the person to access the best available treatment care or support relating to the person’s individual needs;[33] and
(d)that seeks to bring about the best therapeutic outcomes for the person and promote the person’s recovery.[34]
[31] MH Act Long Title
[32] MH Act section 5(a)
[33] MH Act section 6(e)
[34] MH Act section 6(j)(v)
Second, the rights of the person to have some control over their treatment, which are listed in detail in section 6, are subject to territory law,[35] including those parts of the MH Act that permit mental health orders to be made where a person does not consent to, or refuses to receive, the treatment, care or support.
[35] MH Act section 5(b)
The provisions relating to the making of involuntary orders are an express exception to the general rights of the person to consent to, refuse or stop their treatment[36] and to determine their own recovery.[37] But the exception is not unrestricted. Rather, the process by which an involuntary mental health order such as a PTO is made involves:
(a)a formal application to the Tribunal;
(b)the assessment of the application by reference to statutory criteria that must be satisfied before the Tribunal ‘may’ make a PTO;
(c)the Tribunal being satisfied, in addition to the other criteria, 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;[38] and
(d)a review of the PTO by the Tribunal before the expiry of its term,[39] or on an application for review by a person (for example, the subject person),[40] or a revocation notice from the treating doctor.[41]
[36] MH Act section 6(b)(i)
[37] MH Act section 6(c)
[38] MH Act section 58(2)(g); see also section 5(c)
[39] MH Act section 79(1)
[40] MH Act section 79(2)
[41] MH Act section 64
It is presumably intended (and possibly expected) that, in practice, the best therapeutic outcome of a PTO will promote the person’s recovery[42] so that their decision-making capacity is restored and they can then determine and participate in their assessment and treatment, care or support,[43] make their will and preferences known,[44] make decisions or maximise their contribution to decision‑making about their assessment and treatment, care or support,[45] and determine their own recovery.[46]
[42] MH Act section 6(j)(v)
[43] MH Act section 5(b)
[44] MH Act section 6(d)
[45] MH Act section 6(g)
[46] MH Act section 6(c)
We have concluded that a reading of “refuses to receive the treatment, care or support” that permits the Tribunal to have regard to a person’s relevant history of refusal would best achieve that purpose of the MH Act. In cases where such a history is available, it might help a Tribunal make a more informed assessment of the subject person’s current words, deeds or other behaviour when deciding whether the person is refusing or would refuse to receive the treatment, care or support in the absence of a PTO.
However, as this case illustrates, consideration of a person’s history of referral does not lead inevitably to the making of a PTO. A history of refusal might not be sufficient to satisfy the Tribunal that a particular person who is not refusing treatment, care or support at the time of hearing would likely refuse it if a PTO was not made.
In summary, we have concluded that the Tribunal can and should have regard to relevant evidence of a person’s statements and behaviour in relation to treatment, care or support before the date when the Tribunal decides whether to make a PTO. Doing so:
(a)accords with the criterion in section 58(b)(i), when read in the context of section 58 as a whole;
(b)is consistent with the requirement in section 56(i) that the Tribunal take into account the person’s relevant medical history; and
(c)best achieves the purpose of the MH Act.
What evidence is relevant for this purpose will vary from case to case. The fact that someone did or did not refuse to receive treatment, care or support some years prior to the hearing of an application might be given little weight in the absence of more recent evidence about words or deeds that might establish a pattern. Sample instances or inconsistencies of behaviour before the hearing might not provide reliable guidance to whether a person refuses to receive treatment at the relevant date. More recent and consistent evidence are likely to be given more weight. It will be for the Tribunal to assess what evidence is relevant and what weight to give to it.
Accordingly, the original Tribunal did not make an error of law in having regard to the behaviour of FG in refusing treatment in the months preceding the application for a PTO.
The original Tribunal had the advantage of hearing from the parties, including FG. In making the difficult decision, the majority reached a conclusion that was open to them on the evidence. The appeal Tribunal is not persuaded that the majority made an error. Hence, the first ground of appeal must be dismissed.

Risk of harm to himself and of serious deterioration

Section 58(2)(c) of the MH Act states:
(2)The ACAT may make a psychiatric treatment order in relation to the person if—
…
(c) the ACAT believes on reasonable grounds that, because of the mental illness, the person—
(i)is doing, or is likely to do, serious harm to themself or someone else; or
(ii)is suffering, or is likely to suffer, serious mental or physical deterioration;
What the original Tribunal decided
The oral reasons, delivered on 2 August 2018, included the following statement:
We do think that without treatment he is likely to do harm to himself – serious harm as a result of misadventure or self-neglect, and potentially how people may react to him that leads him to risk, and that also, without treatment, his mental state and functioning will seriously deteriorate. So we’re satisfied of those things.[47]
[47] Transcript of proceedings 2 August 2018 page 28
In the statement of reasons given with the PTO, the original Tribunal wrote:
(v)The Tribunal believes on reasonable grounds that because of his mental illness, [FG] is likely to do serious harm to himself as a result of misadventure or self-neglect when unwell.
(vi)The Tribunal believes on reasonable grounds that because of his mental illness, [FG] is likely to suffer serious deterioration of his mental state and function if untreated.
The appellant’s submissions
FG appealed against that part of the original Tribunal’s decision on the basis that there was insufficient evidence to satisfy the requirements of section 58(2)(c)(i) or (ii) as there was no evidence to show that he was a serious risk to himself or others, or that he was at risk of deterioration.
At the hearing of the appeal, the oral submissions made by and on behalf of FG were, in essence, that he is not a threat to himself or to others, and there was no evidence upon which the Tribunal could be satisfied of such things.
FG told the appeal Tribunal that he is not a risk to himself. He is a journalist who releases between one and three hours of material to the internet each week and he is writing his third book. He said that the medication is good for him, and is supplemented by mindfulness and meditation. He said he was not at risk of neglect as he prepares well for camping, eats well and gets exercise. It was submitted that he has insight into his occasional tendency to harm himself and he presents for treatment when appropriate.
FG stated that he poses no risk to others. He said that he spends his life trying to be nice to people, and he gets along with everyone except mental health personnel. He described himself as a pacifist, a follower of Mahatma Gandhi, and a person who practises non-violence. He illustrated this by reference to his encounter with police at the Centrelink office on 4 July 2018. Having had a disagreement with staff at that office, he chose to stay. He was not aggressive nor a risk to the police. He showed passion, not aggression. He acknowledged that the police could have confused his passion for aggression, and stated “it happens often.”
Speaking more generally, FG told the appeal Tribunal there is a backstory that we do not know. He urged us to “have a heart”, repeating that he has a home now and has “got my life together.”
He said that the system is torturing him, and he was critical of a system in which people oppose each other. He reiterated that he would continue to “refuse to take the needle.” These matters are dealt with later in these reasons for decision (see [124] to [130]).
The respondent’s submissions
In oral and written submissions, the Chief Psychiatrist contended that FG was at risk of harming himself or of mental deterioration. The Chief Psychiatrist was not suggesting that he would harm others.
As the Chief Psychiatrist noted:
(a)the original Tribunal was unanimous in finding that both criteria in section 58(2)(c)(i) and (ii) of the MH Act were met;
(b)these criteria are alternatives (being separated by ‘or’); and
(c)for FG to succeed he would need to demonstrate that the original Tribunal was in error on both findings.
The Chief Psychiatrist submitted that the Tribunal has to exercise a discretion in each case when deciding whether either, or both, of those criteria are met in a particular case. Reasonable minds may differ. Accordingly, the principles in House v R[48] apply, and restraint is required in disturbing the decision on appeal.[49]
[48] [1936] HCA 40
[49] See LB v Mental Health ACT [2006] ACTSC 15 [2] in respect of the equivalent provision in the now-repealed Mental Health (Treatment and Care) Act 1994
In relation to the finding about the first of these criteria, the Chief Psychiatrist referred to the evidence on which the original Tribunal relied which indicated that FG’s risky behaviour was bringing him to the attention of others. More generally, his belief system includes features that might generate conflict with others, including that he is on a mission to confront and expose the Freemasons. There was also evidence indicating FG’s propensity to neglect himself when unwell, including not eating.
The Chief Psychiatrist submitted that:
(a)it was reasonably open to the original Tribunal to find, pursuant to section 58(2)(c)(i), that FG was at risk of harm to himself; and
(b)FG had not demonstrated any error in the original Tribunal’s reasoning or findings.
In relation to the findings about the second of those criteria, the Chief Psychiatrist submitted that:
(a)the original Tribunal accepted the evidence from mental health professionals that FG was likely to suffer serious mental deterioration if he were not treated;
(b)there was little or no evidence to warrant a contrary finding; and
(c)the original Tribunal was not in error in relying on that evidence.
Consideration and conclusion
There was oral and written evidence before the original Tribunal that FG met the criteria in section 58(2)(c)(i) and (ii) of the MH Act. The original Tribunal had only to believe on reasonable grounds[50] that one of those provisions was satisfied. It decided that both were satisfied.
[50] See In the matter of ED [2017] ACAT 84 [20]-[23]
The appellant has not convinced the appeal Tribunal that the original Tribunal was in error. Indeed, we are satisfied that there were reasonable grounds for the original Tribunal to believe that those statutory criteria were satisfied at the date of the decision. Consequently, the second ground of appeal must be dismissed.

Other matters raised during the appeal hearing

It is appropriate (though not necessary) to discuss two other matters raised in the course of hearing the appeal.
First, FG explained to the appeal Tribunal that, although he accepts that he needs treatment for his mental illness, he wants the correct treatment. As we understood him, he has some clear and firm views about what that treatment is. In particular, he now prefers to take his medication orally rather than by depot injection. He explained that the side-effects for him of the slow-release injection include adverse effects on his skin. It also exacerbates his sight sensitivity to sunlight. The medication, in that form, makes him feel distant. He prefers the oral form of the medication because it helps him sleep and gives him an appetite for food. He acknowledged that the injections worked best when he was homeless, as he had no routine and it was difficult for him to travel to the city frequently. Now that he has his own apartment, has “got my life together” and has a daily schedule, he prefers the oral medication. Importantly, from his perspective, taking oral medication is an exercise of free will on his part and demonstrates, he submitted, his willingness to voluntarily take medication. He stated that it is evil to force him to do things that spoil his life. In that way his basic rights are taken from him. He asked the appeal Tribunal to “have a heart” and expressed his desire that the treating team, the Tribunal and he work together (rather than in conflict) in the program of treatment, care or support. He stressed that he refuses and will continue to refuse to “take the needle”.
The lawyer representing the Chief Psychiatrist stated that her client is aware of FG’s stable condition, but there was recent evidence of his non-compliance with the treatment in the form of a depot injection, and it is not for FG to choose his treatment.
As the appeal Tribunal pointed out during the hearing, the Tribunal does not and cannot direct the Chief Psychiatrist or her delegate in relation to the treatment provided to an individual. Section 61(2) of the MH Act provides:
(1) The chief psychiatrist is responsible for the treatment, care or support of a person to whom a psychiatric treatment order applies.
Section 57 states:
In making a mental health order in relation to a person, the ACAT must not order a particular form of treatment, care or support.
Second, the Public Advocate’s representative referred to the principles set out in section 6 of the MH Act that ‘must be taken into account’ in exercising a function under that Act. In particular she referred to the following principle:
(f) a person with a mental disorder or mental illness has the right to be able to access services that—
(i)are sensitive and responsive to the person’s individual needs, including in relation to age, gender, culture, language, religion, sexuality, trauma and other life experiences; and
(ii)observe, respect and promote the person’s rights, liberty, dignity, autonomy and self-respect;
She submitted in relation to that principle was that while a depot injection was appropriate to his previous circumstances, it is not now.
In relation to those two matters and the submissions we note that:
(a)as stated above, the appeal Tribunal must not order a particular form of treatment;
(b)when exercising a function under the MH Act, the treating team must take into account the principles set out in section 6 of the Act, including section 6(f) quoted above and principles that the person has a right to have their will and preferences taken into account in decisions made about treatment, care or support,[51] and a right to be given timely information to allow them to make decisions or maximise their contribution to decision-making about the person’s treatment, care or support;
(c)the objects of the Act also include to promote the capacity of people with a mental illness to determine and participate in their treatment, care or support;[52]
(d)if FG’s circumstances have changed so that the form of treatment which was appropriate at the time when the PTO was made is no longer appropriate, that matter should be discussed with the treating team; and
(e)this is not a matter that can influence the outcome of the appeal.

Orders

[51] MH Act section 6(d)
[52] MH Act section 5(b)

For the reasons given above, the appeal Tribunal decided that the appeal be dismissed. Consequently, the Tribunal ordered that the decision of the original Tribunal on 2 August 2018 to make a psychiatric treatment order in relation to FG be confirmed.

………………………………..
President G Neate AM
For and on behalf of the Tribunal

HEARING DETAILS

FILE NUMBER:	AA 42/2018
PARTIES, APPLICANT:	FG
PARTIES, RESPONDENT:	Chief Psychiatrist
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	N/A
SOLICITORS FOR APPLICANT	N/A
SOLICITORS FOR RESPONDENT	ACT Government Solicitor
TRIBUNAL MEMBERS:	President G Neate AM Presidential Member G McCarthy Senior Member Dr P Norrie
DATES OF HEARING:	19 November 2018