| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2021 00498
| JL (a pseudonym) | Plaintiff |
| v | |
| MENTAL HEALTH TRIBUNAL | First Defendant |
| DAVID FENN in his capacity as authorised psychiatrist under the Mental Health Act 2014 | Second Defendant |
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JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 June 2021; Final written submissions 5 July 2021 |
DATE OF JUDGMENT: | 23 December 2021 |
CASE MAY BE CITED AS: | JL v Mental Health Tribunal |
MEDIUM NEUTRAL CITATION: | [2021] VSC 868 |
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JUDICIAL REVIEW – Mental health – Delegate of authorised psychiatrist making Temporary Treatment Order – Whether mandatory requirements complied with – Effect of error or non-compliance in Order – Jurisdiction of Mental Health Tribunal – Whether person subject to a Temporary Treatment Order when the Order is invalid – Jurisdiction of Mental Health Tribunal to make Treatment Order – Mental Health Act 2014 ss 5,10, 11, 45-46, 48-50, 53-55, 153, 361.
HUMAN RIGHTS – Charter of Human Rights and Responsibilities – Right to freedom from medical treatment – Right to liberty – Temporary Treatment Order invalidly made – Whether incompatible with human rights – Treatment Order – Whether authorised psychiatrist a public authority – Whether Mental Health Tribunal a public authority – Whether Tribunal gave proper consideration to relevant human rights – Validity of limits on human rights – Charter of Human Rights and Responsibilities Act 2006 ss 4(1), 7(2), 10(c), 21(1),(2),(3), 32, 38.
PRACTICE AND PROCEDURE – Role of amicus curiae.
WORDS AND PHRASES – ‘subject to’.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms L De Ferrari SC with Ms G Cafarella | Victoria Legal Aid |
| For the Secretary to the Department of Health (‘the Secretary’) as amicus curiae | Ms C M Harris QC with Mr J Tito | Department of Health Lawyers |
| For the Second Defendant | Mr S Mukerjea | DTCH Lawyers |
Background and the issues for determination
The plaintiff (‘JL’) seeks judicial review of his compulsory treatment pursuant to decisions made under the Mental Health Act 2014 (‘the Act’) by the delegate of the second defendant, who is an authorised psychiatrist, and by the first defendant, the Mental Health Tribunal.
This proceeding requires consideration of the circumstances in which two orders can be made under the Act: a Temporary Treatment Order and a Treatment Order. The other order of present significance is an Assessment Order, which is the order which will precede the other two orders and permits the compulsory examination of a person by an authorised psychiatrist to determine whether the treatment criteria apply to him or her.
On 18 August 2020 at 10:34am, a delegate of an authorised psychiatrist signed a document titled ‘Mental Health Act 2014 Section 46 MHA 110 Temporary Treatment Order’. The authorised psychiatrist was appointed by the governing body of a designated mental health service.[1] The authorised psychiatrist was empowered to delegate his or her powers, duties or functions to a psychiatrist and others, including in the case of some of the…
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- Case
- [2021] VSC 868
- Decision Date
CaseChat Overview and Summary
The central legal issues were whether the Tribunal had jurisdiction to make a TO when the TTO was invalid, whether the invalidity of the TTO was incompatible with the human rights guaranteed by the Charter, and whether the Tribunal had given proper consideration to JL's human rights. It was also necessary to determine whether the Tribunal and the authorised psychiatrist were public authorities under the Charter and whether any limits on JL's human rights were valid.
The Court found that the Tribunal did not have jurisdiction to make a TO when the TTO was invalid as it was not 'subject to' the TTO at the time the TO was made. The Court also concluded that the invalidity of the TTO did not render it incompatible with JL's human rights under the Charter. The Court found that both the Tribunal and the authorised psychiatrist were public authorities for the purposes of the Charter. Finally, the Court held that the Tribunal had given proper consideration to JL's human rights and that any limits on those rights were valid.
The Court ordered that the decision of the Tribunal be set aside and that the matter be remitted back to the Tribunal for reconsideration in light of the Court's findings. The Court also noted that the amicus curiae had played a valuable role in providing expert advice and assisting the Court in understanding the complex issues involved in the case.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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