In the Matter Of JA (Mental Health) - [2016] ACAT 141

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

IN THE MATTER OF JA (Mental Health) [2016] ACAT 141

MH 86/1998
Catchwords: MENTAL HEALTH – psychiatric treatment order – whether order can be made when subject person not refusing treatment, care or support – consent for treatment, care and support for a person lacking decision-making capacity to consent– appointment of guardian and emergency guardian to give consent for psychiatric treatment, care and support

Legislation cited: Mental Health Act 2015 s 58
Guardianship and Management of Property Act 1991 ss 7, 32A, 32B, 32D, 32JA, 67

Tribunal:                  Presidential Member G McCarthy
  Senior Member L Drew
  Member A Delahunt

Date of Orders: 1 December 2016

Date of Reasons for Decision: 9 December 2016

ACT CIVIL & ADMINISTRATIVE TRIBUNAL MH 86/1998

IN THE MATTER OF
JA

TRIBUNAL:            Presidential Member G McCarthy
  Senior Member L Drew
  Member A Delahunt

DATE:1 December 2016
ORDER

No additional psychiatric treatment order made, noting that [JA] is not refusing treatment, care or support.
……………Signed.......
Presidential Member G McCarthy
Delivered for and on behalf of the Tribunal
REASONS FOR DECISION
On 1 December 2016 the Tribunal conducted a hearing to determine whether to make a psychiatric treatment order (PTO) in relation to a person referred to in these reasons as “JA”.
For that purpose, the Tribunal received and took into account a Tribunal review report from the ACT Health, City Mental Health Team, dated 30 November 2016 created by Dr Zain Hindawi, psychiatrist. The Tribunal also heard from Mr Mortimore from City Mental Health, who said that he is JA’s case manager.
After considering Dr Hindawi’s report and hearing from Mr Mortimore, the Tribunal determined that it could not make a psychiatric treatment order because JA is not refusing treatment, care or support.
By email sent on 2 December 2016, Dr Hindawi requested written reasons for the Tribunal’s decision. Dr Hindawi wrote:
I am writing to express my concern at the Tribunal decision yesterday of not granting a further PTO for [JA] as advised by the treating team. I noted clearly in my report to the tribunal that [JA] lacks decision-making capacity. May I respectfully request a written reason for the Tribunal’s decision so that this can be uploaded [to JA’s] medical record and inform the treating team.
I note also [JA’s] previous treating psychiatrist ... submitted an application to the Tribunal back in 2/5/16 requesting a guardian be appoint[ed] for JA - my understanding of the reason of this to be declined at the time was that [JA] was also concurrently on a PTO and this served the purpose.
However, now that [JA] is a voluntary client - and lacks decision-making capacity, a further application for urgent allocation for guardian will be made under these circumstances.
Whilst the reason for the Tribunal’s decision not to make a further PTO is that it was not satisfied that JA is refusing treatment, care or support, the Tribunal expands upon that reason in response to Dr Hindawi’s email.
The Tribunal noted and accepted that JA lacks decision-making capacity. However, under section 58(2)(b) of the Mental Health Act 2015, regardless of whether a person has or does not have decision-making capacity, the additional issue is whether the person is refusing to receive treatment care or support or is refusing to consent to the treatment care or support. Section 58(2)(b) 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; (emphasis added)

Dr Hindawi advised the Tribunal in her report dated 30 November 2016 that JA is not refusing to receive treatment, care or support.
However, Dr Hindawi also advised that JA is highly dependent upon mental health services to facilitate treatment and care, and requires assertive follow-up. The Tribunal explored that issue with Mr Mortimore, who explained that whilst JA is dependent upon City Mental Health care providers, JA is always compliant with their wishes and actions. In short, there is no refusal of any treatment, care or support in which case the Tribunal was not satisfied that section 58(2)(b) was met, meaning it did not have power to make a PTO.
That position is consistent with section 58(2)(g) of the Act, under which the Tribunal cannot make a PTO unless it is satisfied that the treatment, care or support which would be provided under a PTO
...cannot be adequately provided in another way that would involve less restriction of the freedom of choice and movement of the person.
Where, according to Mr Mortimore, JA is not refusing any of the treatment, care or support being provided, the Tribunal was not satisfied that section 58(2)(g) was met. He is in truth a voluntary patient.
The Tribunal notes that this circumstance has occurred in the past. In a report dated 8 January 2014 to the Tribunal in relation to whether to make a further PTO, his treating psychiatrist wrote:
[JA] has been cooperative with treatment and has indicated a willingness to continue medication and home visits from mental health staff. I do not think ongoing involuntary treatment is necessary for [JA’s] care.
The Tribunal determined that no further PTO should be made.
Referring to Dr Hindawi’s comments about guardianship, the application for appointment of the Public Trustee and Guardian (the PTG) as guardian and manager was dismissed on 23 August 2016 for two reasons.
First, the PTG provided a report stating that the applicant for appointment of a guardian had himself stated to the PTG that JA’s progress although slow:
...may be impeded if a guardian is appointed at this time.
According to the PTG, the applicant also stated:
...that while [JA] is compliant with ... medication [JA] will improve and should be encouraged to do so without an order at this time.
According to the PTG, the applicant also stated –
that his report and the report from [JA’s] recently appointed psychiatrist will reflect this.
Second, in order to appoint anyone as a guardian for a person, the Tribunal must be satisfied among other things that if a guardian is not appointed the person’s needs will not be met or the person’s interests will be significantly adversely affected.[1] In relation to medical treatment involving treatment, care or support under the Mental Health Act, the Tribunal was not satisfied that [JA’s] needs would not be met or JA’s interests would be significantly adversely affected if a guardian was not appointed because that treatment, care and support could already be provided under the PTO that was then in place.
[1] Guardianship and Management of Property Act 1991, section 7(1)(c)
Referring to Dr Hindawi’s comment that upon the Tribunal not making a PTO on 1 December 2016 a further application for urgent allocation for a guardian would be made under these circumstances, it does not follow that if a PTO is not in place a guardian must be appointed who can give consent for psychiatric treatment, care or support.
Under section 32A of the Guardianship and Management of Property Act 1991 (the GMP Act), JA is a ‘protected person’ because JA is an adult “who has impaired decision making-ability for the giving of consent to medical treatment.”
Under section 32A, ‘medical treatment’ includes “medical treatment involving treatment, care or support under the Mental Health Act 2015.”
Under section 32A, ‘health professional’ in relation to medical treatment involving treatment, care or support under the Mental Health Act 2015 means a mental health professional under that Act. ‘Health professional’ is in turn defined in the Mental Health Act to mean “a doctor, nurse, psychiatrist, psychologist, social or therapist (including occupational therapist) or other person provides services for people with a mental disorder or mental illness.”
Under section 32B, a protected person’s domestic partner, carer, close relative or close friend is a “health attorney” for a protected person.
Under section 32D, if a health professional believes on reasonable grounds that a protected person needs, or is likely to need, medical treatment, the health professional may ask the health attorney who the health professional believes on reasonable grounds is best able to represent the views of the protected person to give consent required for the medical treatment.
By these statutory provisions, anyone who is providing services to JA in relation to JA’s treatment, care or support under the Mental Health Act can obtain consent from anyone who is JA’s domestic partner, carer, close relative or close friend to provide that treatment, care or support. The consent does not need to be from a guardian, although this statutory mechanism for providing consent cannot operate indefinitely: it is subject to the notice and duration of consent provisions in section 32JA of the GMP Act.
Whilst not relevant to why the application for a PTO was refused on 1 December 2016, nor is it a circumstance that existed at that time, the Tribunal records for completeness that on 8 December 2016 it received an application from Dr Hindawi for an emergency order appointing the PTG as guardian for JA, pursuant to section 67 of the GMP Act.
The Tribunal also received correspondence from the PTG dated 8 December 2016 advising, relevantly, “that there is no suitable person to act as health attorney” for JA. In that unusual circumstance, the statutory arrangements under Part 2A of the GMP Act by which a health attorney, as defined, can give consent for medical treatment involving treatment, care or support under the Mental Health Act are not available. Accordingly, on 8 December 2016 the Tribunal made an emergency guardianship order appointing the PTG as guardian for JA with power to give any consent required for any medical treatment involving treatment, care and support under the Mental Health Act.
The emergency guardianship order has effect until 4.00pm on 16 December 2016. The Tribunal anticipates receiving an application made before then for the long-term appointment of someone as guardian for JA and/or a further application for a PTO, and will of course consider and determine such an application before 16 December 2016 according to the evidence in support.
The Tribunal recognises the statutory complexity arising from the interaction between the Mental Health Act and the GMP Act, and a view that it is unduly complex, but it remains the statutory scheme for providing treatment, care or support under the Mental Health Act for a person lacking decision-making capacity to consent to that treatment, care or support.
………………………………..
Presidential Member G C McCarthy
Delivered for and on behalf of the Tribunal
HEARING DETAILS

FILE NUMBER:	MH 86/1998
PARTIES, APPLICANT:	Chief Psychiatrist
PARTIES, RESPONDENT:	N/A
SOLICITORS FOR APPLICANT	N/A
SOLICITORS FOR RESPONDENT	N/A
TRIBUNAL MEMBERS:	Presidential Member G McCarthy Senior Member L Drew Member A Delahunt
DATE OF HEARING:	1 December 2016