JL v Mental Health Tribunal - [2021] VSC 868

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] VSC 868
Decision Date: 23 December 2021

CaseChat Overview and Summary

The applicant, JL, sought judicial review of a decision made by the Mental Health Tribunal (the Tribunal) concerning a Temporary Treatment Order (TTO) that had been made in respect of JL by a delegate of an authorised psychiatrist. The High Court of Australia heard the matter and was tasked with determining whether the Tribunal had jurisdiction to make a Treatment Order (TO) in light of the invalidity of the TTO. Additionally, the Court examined whether the invalidity of the TTO was incompatible with the Charter of Human Rights and Responsibilities Act 2006 and whether the Tribunal had properly considered JL's human rights in making its decision.

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