In the Matter Of RS (Mental Health) - [2015] ACAT 82

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

IN THE MATTER OF RS (Mental Health) [2015] ACAT 82

MH 15/132
Catchwords: MENTAL HEALTH – psychiatric assessment order – whether report should be excluded if assessment conducted contrary to legislative authority

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 7, 23, 52

ACT Civil and Administrative Tribunal Procedural Directions 2010 (No.1) s17.2

Evidence Act 2011 s 138
Human Rights Act 2004 ss 13, 18, 30
Legislation Act 2001 s 180
Mental Health (Treatment and Care) Act 1994 ss 16, 19, 21, 22, 28 41

Cases cited: Coco v The Queen (1994) 179 CLR 427
Bunning v Cross (1978) 141 CLR 54

Other:

International Covenant on Civil and Political Rights, adopted and opened for signature 16 December 1966, [1980] ATS 23

Tribunal: Professor P. Spender – Presidential Member
Ms J Greagg - Member

Date of Orders: 16 October 2015

Date of Reasons for Decision: 4 December 2015
ACT CIVIL & ADMINISTRATIVE TRIBUNAL MH 15/132

IN THE MATTER OF RS

TRIBUNAL: Professor P. Spender – Presidential Member
Ms J. Greagg – Member

DATE:16 October 2015
ORDER

The respondent’s application for interim orders to exclude the report of a delegate of the Chief Psychiatrist dated 11 August 2015 from consideration by the Tribunal in the proceedings for a psychiatric treatment order is granted.
The application made on 19 May 2015 for a psychiatric treatment order is adjourned until 22 October 2015.
signed………………………………..
Professor P. Spender – Presidential Member
for and on behalf of the Tribunal

REASONS FOR DECISION

This decision was delivered ex tempore on 16 October 2015. The reasons below explain why the Tribunal concluded that the relevant report should be excluded from consideration by the tribunal.
After careful consideration, the two members who formed the Tribunal for this application reached different conclusions about the orders that should be made. Section 52 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) provides that where a Tribunal is constituted by more than one member and they cannot reach a majority decision on the question, the decision of the presiding member is the decision of the Tribunal.
The clinicians who provided treatment and assessed the respondent are referred to in this decision as ‘members of the assessing team’ or ‘delegate of the Chief Psychiatrist’ or ‘the delegate’.
The respondent’s application for interim orders to exclude the report of a delegate of the Chief Psychiatrist dated 11 August 2015 from consideration by the tribunal in the proceedings for a psychiatric treatment order is granted.
The application made on 19 May 2015 for a psychiatric treatment order is adjourned until 22 October 2015.
In the reasons below a reference to ‘ACAT’ or ‘tribunal’ refers to the ACT Civil and Administrative Tribunal where as ‘Tribunal’ refers to the presently constituted tribunal.

PROFESSOR P. SPENDER – PRESIDENTIAL MEMBER

Background

On 19 May 2015 an application was made under section 11(2) of the Mental Health (Treatment and Care) Act 1994 (the Act) for an assessment order and a psychiatric treatment order in relation to the respondent. The Assessment Order was sought by a delegate of the Chief Psychiatrist under section 16(1)(a) and the psychiatric treatment order under section 28 of the Act.
On 18 June 2015, ACAT made an assessment order (the First Assessment Order) directing the respondent to attend an appointment at the Older Persons Mental Health Unit on 30 June 2015 and to stay at the facility until the assessment was complete.
The respondent did not attend for the assessment in accordance with the First Assessment order.
On 6 July 2015, ACAT made an order under section 22 of the Act for the respondent’s removal to the Canberra Hospital for a psychiatric assessment (the Removal Order). This order was specified as ceasing to have effect on 5 August 2015.
At the same time that ACAT made the Removal Order it also made a further Assessment Order also dated 6 July 2015 (the Second Assessment Order) which directed the respondent to stay at the Canberra Hospital for the assessment.
The Second Assessment Order also directed the person in charge of the mental health facility at the Canberra Hospital to do a number of things in accordance with section 19 of the Act including to, if necessary, detain, and if appropriate, admit, the respondent to conduct the assessment and required the person to provide a written report to the Tribunal within 7 days of conducting the assessment.
The Removal Order was executed by the Australian Federal Police on 27 July 2015 and the respondent was transported to the Canberra Hospital.
The respondent’s involuntary detention and care was then authorised under section 41(1) of the Act (ED3 authorisation). This authorisation was revoked by the delegate on 28 July 2015 because he considered that RS no longer required involuntary treatment and also noted that the Second Assessment Order was in place and that the assessment was being conducted at the Adult Mental Health Unit of the Canberra Hospital
On 28 July the delegate interviewed RS.
On or about 3 August 2015, the Tribunal Liaison Officer at Adult Mental Health Unit raised with the delegate the question about whether they needed to apply to the tribunal for an extension of the Second Assessment Order. Following this discussion the delegate reviewed the order and confirmed that in his view based on its terms if necessary he could detain RS until the assessment had been conducted.
The Tribunal Liaison Officer made contact with the tribunal about the need to apply for an extension of the Second Assessment Order. As a consequence of the conversation between the Tribunal Liaison Officer and the tribunal, a member of the assessing team applied for an extension of the Second Assessment Order on 4 August 2015.
The application for the extension of the Second Assessment Order was in the following terms:
Hi ….,
Could you please arrange for [RS’s] assessment order to be extended for a further 7 days? He is still being assessed via neuropsychological testing and brain imaging in order to arrive at a diagnosis to inform further management.
This email was transmitted to the tribunal at 1:31 PM on Tuesday 4 August 2015. The following comment was added by the Tribunal Liaison Officer:
Please see below request for extension of assessment order.
The tribunal responded to this request for an extension of the assessment order on 7 August 2015 at 9:59AM by requesting further information:
The Tribunal has considered your request and advised that… this request is insufficient. We need to know formally;
1)    when was RS taken to the hospital for the assessment to commence so        that we can know when the 7 days expires;
2)    what assessment has been undertaken to date;
3)    why has it not been possible to complete the assessment to date;
4)    what further work is to be undertaken;
5)    what is the anticipated time frame for further work;
6)    [RS’s] view
Section 21(2) of the Mental Health (Treatment and Care) Act 1994 requires that the Tribunal consider “clinical evidence provided to it by the person conducting the assessment, that a satisfactory assessment cannot be completed within the period provided”.
No further action was taken by either the doctors or the tribunal in relation to the application for extension of the Second Assessment Order.
The delegate prepared a report pursuant to the Second Assessment Order. His report is dated 11 August 2015.
The application for the psychiatric treatment order was listed for hearing on 27 August 2015. At that hearing Mr Jehne appeared for RS. He made submissions that the respondent’s detention was not authorised under the Act and as a consequence the delegate’s report was derived as a result of impropriety or in contravention of Australian law and the tribunal should therefore use its discretion to exclude the report pursuant section 138 of the Evidence Act 2011 (Evidence Act). Mr Jehne also argued that the report should be excluded on the basis of the principles of natural justice as it would be unfair to the respondent to admit the report.
The Tribunal regards the submissions made by Mr Jehne on behalf of RS as being in the nature of an application for interim orders to exclude the report either on the basis of section 138 of the Evidence Act or alternatively on the basis of the principles of natural justice. For the purposes of determining this application for interim orders, the Tribunal will regard the submissions made orally by Mr Jehne on 27 August 2015 as being in the nature of an application for interim orders. This permitted under section 17.2 of the ACT Civil and Administrative Tribunal Procedural Directions 2010 (No. 1).
I will first consider the argument about whether the application for an extension of the assessment order by the member of the assessing team on 4 August is still operative and the Tribunal can make orders now nunc pro tunc to give effect to that application for extension. This argument was made by the applicant in its written submissions and then expanded during the hearing on 18 September 2015. It requested that the tribunal reopen its consideration of the application for extension of the assessment order for a three-day period between 4 August 2015 and the date that RS was discharged, being 7 August 2015. I consider that the application for an extension on 4 August 2015 was not concluded by the tribunal at the time the assessment took place and therefore the tribunal may have been able to make orders nunc pro tunc that an extension be granted pursuant to section 21(2) of the Act.
However, the point is moot because I consider that the assessment order had expired by the time that the application for extension was made and therefore the preconditions for the exercise of the power under section 21(2) were not satisfied because the period within which the assessment needed to be conducted under section 21(1) had expired. The running of time in relation to the assessment orders and the removal order is discussed below.
The next question is whether the report was obtained in circumstances which amount to a contravention of Australian law.
There has been considerable discussion about the running of time under section 21 of the Act regarding assessment orders and section 22 regarding removal orders. As stated above, the First Assessment Order was made on 18 June 2015. The Second Assessment Order was made on 6 July 2015. Assessment orders are regulated by section 21 of the Act. Section 21(1) states that
the assessment of a person in relation to whom an assessment order is made must be conducted as soon as practicable, and not later than —
a) 7 days after the assessment order is made; or
b) another day stated in the assessment order.
In this case the Second Assessment Order did not state ‘another day’.
There is a date stated in the Removal Order. The Removal Order states ‘this order ceases to have effect on 5 August 2015’. Removal orders are regulated by section 22 of the Act. This provision states that a removal order must state:
(a) the day (being a day not later than one month after the day the order is made) on which the order stops having effect; and
(b) the mental health facility to which the person is to be removed; and
(c) the nature of the assessment to be conducted in relation to the person.
Pursuant to section 22(4) of the Act a removal order authorises –
(a) the arrest of the person named in the order; and
(b) the removal of the person to the mental health facility stated in the order.
The Removal Order complied with the requirements of section 22 in that it stated the day on which the order stops having effect, being 5 August 2015 which was a day not later than one month after the day the order was made (being 6 July 2015). The Removal Order also stated the mental health facility to which the person is to be removed being the Canberra Hospital, Yamba Drive, Garran and by attaching the Second Assessment Order the Removal Order stated the nature of the assessment to be conducted in relation to the person.
However, as stated above, the Second Assessment Order did not state ‘another day’ when the assessment was to be made pursuant to section 21(1)(b) of the Act, therefore the default position operates under section 21 that the assessment of the person must be conducted as soon as practicable and not later than 7 days after the assessment order is made.
I consider that the flexibility provided by the opening words of section 21(1) which allows the assessment to be conducted ‘as soon as practicable’ should not be read to override the express time limit in section 21(1)(a) being 7 days after the assessment order is made. The tribunal is empowered to state another day in the assessment order and an interpretation which allowed an assessment to be conducted as soon as practicable and ordered RS to attend the mental health facility and allows the person in charge of the mental health facility to admit RS and detain him until the assessment has been conducted cannot be read to provide open time limits where the provision is to be read contextually and alongside a provision which sets a default time of 7 days after the assessment order is made.
In my view this interpretation is consistent with the principle of legality which requires me to interpret section 21 so as to not interfere with fundamental common law rights. The relevant rights in this case are liberty and privacy. I agree with the respondent’s submission relying on Coco v The Queen[1] that in the absence of a manifestation of unmistakable legislative intention in these provisions of the Act to curtail fundamental rights such as that to liberty and privacy, a narrow construction that accords with the statutory language should be adopted.
[1] (1994) 179 CLR 427 at 437
Although a date is stated in the Removal Order, this date is required by section 22 and its purpose is directed at the duration of a removal order which authorises the arrest of a person and the removal of a person to a mental health facility stated in the order.
I note the applicant’s arguments that the Tribunal should adopt a nuanced approach and read sections 21 and 22 together so that the period stated in the removal order can be applied to the assessment order because otherwise it would be absurd to have the removal order operating when the assessment order has expired. It is true that upon my interpretation a removal order might operate when there is no valid assessment order but the legislation contemplates that the assessment order can stipulate another day, which would allow the two orders to be aligned. The importance of aligning the two orders is that a specific date or time period may be stipulated in the assessment order and it is not an open period.
The applicant urges this construction in order to provide flexibility in the operation of the regime and relies upon the wording of the orders themselves, but the orders cannot displace the legislative intention as stated in section 21. Whilst I agree that it is appropriate to take a flexible approach to legislation, when the orders and legislation are restraining a person’s freedom of movement a stricter approach is required. This is supported under several frameworks in the common law and under the Human Rights Act 2004 (Human Rights Act) in several provisions including sections 13 and 18. I am obliged to interpret the Act in a way that is compatible with human rights insofar as it is possible to do so consistently with the Act’s purpose under section 30 of the Human Rights Act. As stated above, such an interpretation does not permit open time frames. They may be of a longer duration than the 7 days stipulated in section 21(1) because of the power of the tribunal to state ‘another day’ in that provision but they must be certain.
I do not consider that a duration stated in the Removal Order can be applied to the Second Assessment Order merely because the two orders operate hand-in-hand when someone has failed to attend for an assessment pursuant to an assessment order where an appointment time is stipulated and a subsequent assessment order is made with a removal order. The purpose of an assessment order is clearly to assess at the threshold whether a person’s health or safety is likely to be substantially at risk or the person is likely to do serious harm to themselves or others because they are mentally dysfunctional or mentally ill. Unfortunately the legislation does not give clear guidance about the operation of assessment orders but section 19 states that an assessment order must state the nature of the assessment to be conducted and section 19(2) states that the assessment order authorises the conduct of the assessment and anything necessary to be done to conduct the assessment.
As stated above, I consider that the duration of the assessment order must be determined independently of the removal order which has a different function under the legislation. In this case the stipulation of the date of 5 August in the Removal Order could not operate to extend the statutory timeframe of the Second Assessment Order under section 21(1) of the Act. Therefore although the applicant made a very persuasive argument about the extension of the Second Assessment Order, by the time the application to extend was made on 4 August 2015 it had expired. The Second Assessment Order expired around 13 July 2015 because the order of 6 July did not state ‘another day’ pursuant to section 21(1)(b) and the duration of the assessment order was not extended before or on 13 July 2015.
Therefore, the applicant’s authority to involuntarily assess the respondent expired on 13 July 2015 at the latest. The respondent was detained at the Adult Mental Health Unit until 27 July 2015. It is clear from the evidence, in particular RS’s affidavit dated 31 August 2015, that he did not consent to the assessment. It therefore follows that he was detained without authority during the period that the report by the delegate was obtained.
I must now consider whether the delegate’s report should be excluded under section 138 of the Evidence Act, which is the submission made by the respondent. I do not consider that the evidence should be excluded pursuant to section 138 of the Evidence Act. In my view, the operation of section 138 is not compatible with the tribunal’s power to decide its own procedure under section 23 of the ACAT Act. In particular, section 138 will potentially constrain the tribunal in making decisions about the admissibility of evidence which is incompatible with its function. For example, in my view the creation of an onus or burden of proof is not consistent with tribunal decision-making under the Act, which states in its objectives in section 7 that it is designed to provide treatment, care, rehabilitation and protection of mentally dysfunctional or mentally ill persons in a manner that is least restrictive of human rights. However, I rely upon the general statement of principle that is encapsulated in sections 138(1) and 138(3) of the Evidence Act that allows the tribunal to consider the way in which the evidence was obtained in weighing the desirability or undesirability of allowing the material to be considered. This also involves a consideration of Bunning v Cross.[2] The factors in section 138 of the Evidence Act that will be applied by analogy include:
·the probative value of the evidence;
·importance of the evidence in the proceeding;
·the gravity of the contravention;
·whether the contravention was deliberate or reckless;
·whether the contravention was inconsistent with a right of a person recognised under the International Covenant of Civil and Political Rights (ICCPR)
[2] (1978) 141 CLR 54
As regards the first and second criteria, the report is highly probative and is valuable evidence that is relevant to the application for a psychiatric treatment order.

Regarding the gravity of the contravention, I note the applicant’s argument that this criterion must be considered in the therapeutic context that RS’s detention occurred. Further, argued the applicant, the Tribunal must consider the consequences of the wrong. In Bunning v Cross the consequences of the wrong was exposure to prosecution and punishment. In this case the detention was for a therapeutic purpose. In that respect the applicant contended that a distinction must be drawn between an ED3 order which is for treatment and an assessment order which is for information. In Bunning v Cross the individual was exposed to punishment. In this case the individual was only exposed to therapeutic assessment. The respondent argued in response that the Act clearly provides for incursions into people’s rights but they must be done according to law. The therapeutic benefit is not an end in itself and must be human rights compliant, meaning that it can only be done according to law and a strict approach must be taken to the detention of the respondent for assessment.
As regards the fourth and fifth criteria, there is no contention that the contravention was deliberate or reckless. However, the contravention was potentially inconsistent with a right of a person recognised under article 9 of the ICCPR which states as follows:
Article 9
1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
The provision has been adopted in the ACT in section 18 of the Human Rights Act.
Taking the above criteria into account, I conclude that although the report provided by the delegate is highly probative and contains important information about RS’s mental and physical health, that consideration is outweighed by the unfairness caused by the circumstances in which the evidence was obtained because it was not pursuant to a legislative permission.
I note the applicant’s arguments that pursuant to section 23 of the Act, ACAT must consider an assessment before making a mental health order. In my view this provision must be read to mean a report that is otherwise valid. This argument is discussed in more detail in the related decision of In the Matter of TM (Mental Health) [2015] ACAT 81.
I conclude that the report of the delegate dated 11 August 2015 should not be considered by the tribunal because it was obtained without legislative authority. I therefore exclude the report from consideration by the Tribunal on the grounds of procedural fairness under section 7 of the ACAT Act. It is important to note that only the report itself is excluded pursuant to a discretionary decision not to consider certain material. Therefore, the ‘fruit of the poison tree’ concern that was raised by the applicant (for example about historical clinical information) does not apply other than for the period where the respondent was detained without legislative authority.
In conclusion, my decision to exclude the report has not been taken lightly because it is clear that everyone who has been involved in this case was acting in good faith and out of concern for RS and his family’s safety. But the timeframes in the Act are intended to be strict even though there is some uncertainty about their operation. In my view the problem about the timing of a second assessment order may be overcome in future by stating a day in the second assessment order that coincides with the date that the removal order expires or encompasses the period that the removal order operates.
It is critical to promote the legislative intention of restraining a person’s liberty for a limited and specified time when they do not consent to the restraint even if it is for therapeutic purposes. The integrity of the assessment process is dependent upon maintaining clear boundaries within which people may be detained for assessment.

Conclusion

I have concluded that the report of the delegate dated 11 August 2015 must be excluded from the tribunal’s consideration of the application for a psychiatric treatment order on the ground that it was obtained when RS was detained without legislative authority.
………………………………..
Ms L. Crebbin – General President
for and on behalf of the Tribunal

MS J GREAGG - MEMBER

I have taken a different view to the Presidential Member and believe that the Assessment Order (AO) of 18 June 2015 as varied on 6 July 2015 was at all times valid and that the report provided by the delegate following his assessment of the respondent is accordingly also valid.
I have not taken this decision lightly, however I believe that there are some significant issues in the drafting, interpretation and inter-relationships between several provisions in the Mental Health (Treatment and Care) Act 1994 (the Act) which need urgent examination and clarification, particularly in light of the new legislation which is about to come into operation.

The originating process

It is important to start with the reason for the application. Section 21 needs to be read in the context of sections 11 and 16 and the purpose and objectives of the Act. Put briefly, the applicant believed that they had reasonable grounds to think that the respondent satisfied the criteria for section 16(1)(a); the Tribunal agreed that this may be the case based on the information in the application and made the AO (the first assessment order or AO1).

What goes into an Assessment Order? Section 19

If the Tribunal makes an AO, section 19 specifies that the Tribunal (as the body ordering the assessment under section 16) in the AO must:
(a)state the mental health facility where the assessment is to be conducted;
(b)direct the person to be assessed to attend the facility and, if necessary, stay at the facility for the assessment;
(c)direct the person in charge of the facility;
i.if appropriate, admit the person to the facility to conduct the assessment;
ii.if necessary, detain the person at the facility until the assessment has been conducted;
iii.provide the assistance that is necessary and reasonable to conduct the assessment.
Section 19(2) makes it clear that the AO authorises the conduct of the assessment stated in the order and anything necessary to be done to conduct the assessment.
Section 19 is there, according to the heading to the section, not only to specify the content of the AO, but also the effect of the AO. The most important effect is the power included in the order for a person in charge of a mental health facility to, if appropriate, admit, and if necessary, detain a person until an assessment has been conducted.
Section 19 does not include any power for the tribunal to order or direct the person conducting the assessment to complete it within any given period of time, seven days or otherwise.
In my view, section 19 provides the only power to detain a person to conduct an assessment under an AO.

Time for conducting assessments – section 21

Section 21 deals with the ‘time for conducting assessments’. Firstly, the section does not provide any power to the tribunal to order or direct anyone to do anything.
Due to the compelling nature of the concerns giving rise to the application and the need to obtain an assessment expediently, time is of the essence. The physical time for organising the assessment cannot be left open-ended and this is, in my view, the function of section 21.
In my view, to remain faithful to the objectives of the Act, the legislature has included section 21 to provide a timeframe to ensure that the assessment will be organised and conducted quickly. The assessment has to be conducted as soon as practicable, and not later than:
(a)seven days after the day the AO is made under section 21(1)(a) ; or
(b)another day stated in the assessment order under section 21(1)(b).
To ensure expediency of the assessment process, it is preferable if the applicant is able to advise the Tribunal when an appointment will be available when it attends the hearing in relation to the assessment order, and in that instance section 21(1)(b) would apply because there would be a day stated in the AO for the assessment.
But if it cannot, then section 21(1)(a) requires that an appointment must be organised and the assessment be conducted within 7 days of the date on which the AO is made.
Section 21(1)(a) does not allow seven days to conduct the assessment, it is directed at organisation, that is, making sure that an appointment is organised and the person to be assessed given appropriate notice of the appointment. If there was an intention to allow a period of seven days to conduct an assessment then, I can see no reason why there would not also be seven days allowed for conducting an assessment under section 21(1)(b) - in other words, why the general words of section 21(1) would not clearly state that in a similar manner to the repealed section 17. The only difference between the two paragraphs to my mind, is the fact that in one instance there will already a day specified for the assessment in the AO and in the other, presumably, there will not and one will need to be organised.
In any case, I have already taken the view that the only provision that gives authority to detain someone to conduct an assessment (and presumably taking seven days to conduct an assessment with a person who did not agree would constitute being detained) is that specified in section 19(1)(d), and if the legislature wished to limit the conduct of an assessment to 7 days then I would expect that it would be specified in section 19 since that would undoubtedly constitute an ‘effect’ of such an order.
In practice, the tribunal has adopted the approach under section 21(1)(b) and a day, time and place is specified in an AO.
Where an AO is made in accordance with section 21(1)(b) the assessment needs to be conducted on the day stated and not on any other unless section 21(2) is required for an extension.
Section 21 (2) which allows the tribunal to ‘extend the period for conducting an assessment, if satisfied, based on clinical evidence’ by the assessor that ‘a satisfactory assessment cannot be completed within the period under subsection (1)’ was in issue in relation to the respondent.
Where an AO is made in accordance with section 21(1)(b), the AO directs the person to attend the facility and stay for the assessment. Where the person attends the assessment, in my view, the person would then have complied with the Order.
However, if the person conducting the assessment formed the reasonable medical opinion that further tests were warranted, for example, further advanced psychiatric testing of some type, or tests to determine whether there was an organic cause contributing to the person’s symptoms, there would be no ability under the AO1 to direct the person to attend for those further assessments.
Section 19(1)(d) is not included in the AO1 because the mental health units at which those assessments are carried out are generally only staffed during the day although I note that the Older Persons’ Mental Health Unit has capacity to admit consumers.
In any event, it would presumably be neither ‘necessary to detain’, nor ‘appropriate to admit’ a person who had arrived voluntarily for their assessment at a day facility, merely because further assessment was needed that could not be undertaken on the day and where there was no cause to believe that the person would not attend again for the further assessment.
The important issue would be to ensure that any further assessment was within the legal scope of the assessment being carried out in accordance with the AO and it would be necessary to make the application required under subsection 21(2) for that reason alone.
For the purposes of an application under subsection 21(2), the tribunal needs to be satisfied that the assessment cannot be completed within the period under subsection (1). Where the AO has been made using a time period specified in accordance with section 21(1)(b) that would mean that the assessment could not be completed on the day specified in the AO. This provision does not really interact well with section 21(1), (unlike in the repealed section 17(2) which did work seamlessly with section 17(1)), though section 21(2) does not specify when the application should be made (that is, it does not appear that it needs to be made while the person is actually still there for the assessment), unlike the previous substituted section 17(2) which required the period for the extension to be made while the person was still detained for the assessment.
Section 21 does not include the power to detain a person to conduct an assessment or put a time limit on a doctor conducting an assessment under the powers in the AO. That power resides solely in section 19 and where relevant it must be included in the AO (it is currently included in AO2). I fail to see how section 21(2) which appears to be an administrative, stand-alone provision, not contingent on the fulfilment of a tribunal ordered precondition in subsection 21(1), can override section 19(1)(d) which is a requirement of an AO and clearly gives the person in charge of the facility at which the assessment is being carried out the discretion in relation to the amount of time required to conduct the assessment. This is in stark contrast to the extension given under the repealed section 17(2) which was by order of the tribunal and was predicated on a seven day period which commenced on the entry of a person into a facility for assessment – in other words, on detention.
The function of section 21 is to ensure that the assessment of the person is arranged expediently. Once an AO has been issued under section 16 and a provision in accordance with either 21(1)(a) or (b), the section has fulfilled its purpose and has no further part to play if the person fails to attend the assessment in accordance with the AO.
In relation to section 21(2), it operates at the assessment stage with people who comply with the AO1 but who need further assessment in order to inform a full assessment report. The AO1 does not include a power to detain, but even if it did, given the need to consider the least restrictive option, it would presumably not be ‘necessary to detain’ and would be impossible in the case of a day assessment facility, and certainly not ‘appropriate to admit’ a person who is willing to attend for further assessment, and the use of section 21(2) to apply to extend the period to complete conducting the assessment would be appropriate.

Repealed section 17

The applicant has suggested that in amending the Act and repealing section 17, (the previous section dealing with the conducting of assessments) and substituting section 21, there was no reference to changing the meaning of relevant provisions and no evidence in the explanatory statement of an intention that the substance of requirements in the repealed section 17 be changed by the substituted section 21.
Under the previous provision an assessment needed to ‘be conducted as soon as practicable, and in any event within 7 days or such further period under subsection (2), after the person attends the premises specified in the order’.
Section 17(2) allowed the Tribunal to order an extension for another 7 days where satisfied that there was a clinical need for the extension. This provision sits comfortably with the subsection preceding it, unlike the current subsection 21(2)
Section 17(1), unlike section 21(1), referred to the assessment of the person ordered under section 16 and stated that the assessment must be conducted within seven days, or any extension period, after the person attends the premises specified in the order.
Summarising the differences between section 21 and repealed section 17 which both required an assessment ‘as soon as practicable’:
(a)Section 21 focuses on getting the assessment conducted within either seven days of the AO being made, or another specified day - in other words, time is of the essence in organising and carrying out the assessment;
(b)Section 17 focused on the period after the person attends the facility for assessment and provided seven days for the assessment to be conducted; and
(c)What was lacking in section 17 was the requirement to organise and start the assessment process - there was nothing to compel the assessment to be physically started within any particular time and this is what I believe section 21 is attempting to achieve given the concerns that have led to the application being made for the AO.
In any event, whether or not there was an intention to change the meaning of section 17 when it was redrafted and section 21 was substituted, in my view, the meaning did change and it is not possible to interpret the section as it currently stands as requiring an assessment to start from the time the person attends the premises specified in the AO for the assessment, or as providing a period of 7 days in which to undertake that assessment.

The Removal Order

In the event that a person does not attend for their assessment under an AO made in accordance with section 16, the tribunal is notified and a Removal Order (RO) is made in accordance with section 22.
The crucial factor and the only relevant event that triggers a RO is the fact that the person who was to be assessed has not complied with an AO.[3]
[3] Section 22(1)(a)(iii) of the Act
In my view this is crucial because the RO is being made because the person has not complied with an AO made in accordance with section 16. It is not being made in relation to a new AO following a new application and deliberation by the Tribunal.
The RO orders removal to a mental health facility, states the type of assessment to be conducted and authorises the arrest and removal of the person named in the order to the facility.
The provisions of section 22(3)(a) state that the order must state a day on which the RO stops having effect – specified as ‘a day not later than one month after the day the order is made’.
There are obviously practical reasons for this. The RO is directed to the police.[4] The person to be assessed has failed to attend a specified appointment in accordance with an AO. The implication is that, in the absence of any other evidence, the person does not wish to be assessed. It is possible they are hiding to evade the assessment. Police and mental health workers have to coordinate to locate and apprehend the person and take them to the Canberra Hospital. In other words, this is something that could take some time. However, the legislature recognised that the time allowed for removal for the assessment shouldn’t be open-ended, so a month has been specified as a reasonable period during which the RO will remain valid to allow the police to complete their task.
[4] section 22E of the Act

The present case

Once the respondent failed to attend for the assessment it was still necessary to obtain the assessment as quickly as possible and the process had to keep moving expediently in accordance with the objectives of the application and the provisions of the Act, but the respondent now had to be removed to a different facility, in a different manner and under a different provision, namely, a RO pursuant to section 22, to enable the assessment to be carried out, once the respondent had been located and removed to that facility in accordance with the RO.
I do not believe that it was necessary to put any further time period into the second assessment order (AO2) because section 21 did not apply. The respondent had had the opportunity and had failed, to voluntarily attend an appointment made in accordance with that section and was now being removed for an assessment under section 22. Provided the respondent was delivered to The Canberra Hospital by 5 August 2015, the person in charge of the facility would be legally entitled in accordance with the AO to admit and detain the respondent to the facility and until the assessment had been conducted.

It would be outside the intention of the Act to provide a method by which a person who could be in dire need of treatment and care under the Act could deliberately thwart a legally ordered assessment in accordance with section 16 by failing to comply with the AO1 made in accordance with a time frame stated under section 21 and then evading apprehension for a period of time shorter than the life of the RO. That would leave the untenable situation of having the potential of having a valid RO and an invalid AO.
If this is the case then surely an urgent legislative change is required.

Two assessment orders?

Both parties have referred, and for convenience, I have also referred throughout, to, two AOs being the initial AO of 18 June 2015 and the second AO of 6 July 2015.
The Tribunal is required to obtain an assessment report in relation to the respondent and the legislation contemplates a situation where a person, such as the respondent, does not comply with an AO and provides for their removal to a facility for this purpose in accordance with section 22.
In my view, the AO2 was in fact a variation of the first to take account of the changed circumstances following the respondent’s non-compliance with the AO1 and did not constitute a new AO.[5]
[5] Section 180 Legislation Act 2001
The AO1 directed the respondent to be assessed at a specific mental health facility at a specific time and date. It did not include any power of detention by the person conducting the assessment, although it did direct the respondent to stay at the facility until the assessment was complete.
Following the respondent’s failure to attend that assessment, and at the time that the RO was made, it was possibly necessary to amend the AO1 to change the mental health facility at which the assessment was to be conducted, although the facility to which the respondent was to be removed was now stated in the RO. It was certainly necessary to include the powers under section 19(1)(d) which provide a direction to the person in charge of the facility to enable that person to if appropriate, admit, and if relevant, detain the respondent until the assessment had been conducted.
However, in my view this did not constitute a new AO and therefore did not require a time to be provided for an assessment under section 21.
The AO2 has to be read in conjunction with the RO but only to the extent that, provided the respondent was arrested and removed to the Canberra Hospital prior to the expiry of the RO, the AO was valid. Provided that occurred within the given time-frame the person in charge of the facility would be legally entitled, in accordance with the AO, to admit and detain the respondent to the facility until the assessment had been conducted.

Validity of report

The assessment of the respondent carried out by the delegate between the respondent’s arrival on 27 July 2015 and 7 August 2015 when the respondent was discharged, was authorised by the Assessment Order of 18 June 2015 (as varied by the Assessment Order of 6 July 2015) and the respondent was not illegally detained during that period.
Accordingly, the report provided to the Tribunal by the delegate is a valid report.
The second AO (a variation of the AO of 19 June) authorised the person in charge of the facility at the Canberra Hospital to detain and admit the respondent for the purposes of the assessment in accordance with the terms of section 19 which state that the AO must include those terms.
The delegate stated in his affidavit that he had examined the AO and was of the view that it provided him with the power to admit and detain the respondent to undertake the assessment until it was completed.
The delegate stated in his affidavit that after he was advised that he was required to apply for an extension of the AO that he again examined the AO and was not sure why he was limited to seven days for an assessment when the AO gave him a direction to admit and detain the respondent until the assessment had been conducted.
I share the delegate’s view that the AO gave him this power. I believe that section 19(1)(d) of the Act, included in the AO in accordance with the mandatory requirement of the Act provided the delegate with the necessary authority. I do not believe that the respondent was held illegally at any time and I believe that the report of 11 August 2015 is valid.
I am also of the view that given the wide range of views expressed during these proceedings in relation to the way in which sections 19 and 21 should be interpreted that it would be beneficial to give urgent consideration to clarifying and, if necessary, re-drafting the powers relevant to detention for assessment under the new Act which is due to commence shortly.
I do not believe that any power similar to repealed section 17 continues to operate under the Act as it is currently drafted, though this is clearly still in practice. This provision would, if operative, and does in practice, clearly conflict with section 19(1)(d). This is what has happened in this case.
I think that it is important that urgent clarification is sought on whether a seven day assessment period continues to operate under section 21, and, if it does, then exactly how that affects the seemingly unfettered discretion that section 19(1)(d) provides to the person in charge of the facility to conduct an assessment ordered by the Tribunal.
If this is indeed the case then it is my firm view that it would be prudent to state in the AO itself any time limits that apply to the conduct of the assessment and the requirement to seek extensions particularly given the onerous obligations placed on doctors under the new legislation.
………………………………..
Ms L. Crebbin – General President
For and on behalf of the Tribunal
HEARING DETAILS

FILE NUMBER:	MH 15/132
PARTIES, APPLICANT:	Chief Psychiatrist
PARTIES, RESPONDENT:	RS
SOLICITORS FOR APPLICANT	Mr Hancock, Ms Hutchinson ACT Government Solicitor
SOLICITORS FOR RESPONDENT	Mr Jehne Legal Aid ACT
TRIBUNAL MEMBERS:	Professor P. Spender – Presidential Member Ms J Greagg - Member
DATES OF HEARING:	18 September 2015