JL v Mental Health Tribunal
[2021] VSC 868
•23 December 2021
| 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 |
---
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 |
---
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’.
---
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 powers, duties and functions to a registered medical practitioner.[2]
[1]Mental Health Act 2014, s 150 (‘the Act’).
[2]The Act, s 151.
The document signed by the delegate stated that JL was a patient who was subject to an Inpatient Assessment Order that expired on 18 August at 12:52pm. There is no prescribed form for a Temporary Treatment Order, but the wording of s 49 suggests that it must be in writing. The form used stated:
1. I have examined the above named person.
2.I am satisfied that all the following treatment criteria in section 5 of the Mental Health Act 2014 apply to the person:
a.the person has mental illness (mental illness is a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory); and
b.because the person has mental illness, the person needs immediate treatment to prevent:
i.serious deterioration in the person’s mental or physical health; or
ii.serious harm to the person or to another person; and
c.the immediate treatment will be provided to the person if the person is subject to a Temporary Treatment Order; and
d.there is no less restrictive means reasonably available to enable the person to receive the immediate treatment.
3. I base my opinion on the following:
[JL] is acutely paranoid, experiencing AM and is highly aggressive. He is at high risk of harm to others as a result of his acute mental illness.[3]
4. I am satisfied that the immediate treatment the person needs:
Đcan be provided in the community and make a Community Temporary Treatment Order.
Đcannot be provided in the community and make an Inpatient Temporary Treatment Order.[4]
[3]The comments in this section were handwritten.
[4]Court Book, JL (a pseudonym) v Mental Health Tribunal (Supreme Court of Victoria, S ECI 2021 00498, Ginnane J, 15 June 2021) 14 (‘CB’).
Neither of the boxes contained in paragraph 4 of the form was marked and so the Temporary Treatment Order (‘TTO’) did not specify whether it was an Inpatient Temporary Treatment Order (‘Inpatient TTO’) or a Community Temporary Treatment Order (‘Community TTO’).
Paragraph 5 of the form commenced with the words ‘I have had regard to’ and then listed persons whose views may have been sought by the decision-maker, such as the person to be subject to the TTO, family members and any carer. A box was placed next to each such category of persons, which could be marked to indicate whose views the delegate had regard to. However, none were marked.
Paragraph 7 of the form stated that the duration of a TTO was 28 days unless revoked earlier. That reflected the terms of s 51(1).
JL was detained at a designated mental health service in reliance on the TTO from 18 August 2020 to 14 September 2020. He was subject to compulsory treatment while so detained including being treated with drugs.
On 14 September 2020, the Mental Health Tribunal (‘the Tribunal’), having been notified in accordance with the Act of the making of the TTO, conducted a hearing to determine whether to revoke the TTO or make a Treatment Order so that JL would continue to be a compulsory patient. The Tribunal was obliged to conduct such a hearing if JL was subject to a TTO. The hearing had to be conducted before the expiration of the TTO. At the hearing, JL was represented by a Victoria Legal Aid duty lawyer who submitted that the Tribunal did not have jurisdiction to conduct the hearing because the TTO was invalid for failing to comply with the requirements of s 49 of the Act, which required that the TTO state whether it was an Inpatient TTO or a Community TTO.
At the hearing, the psychiatrist treating JL made a handwritten change to the TTO so that it indicated that it was an Inpatient Treatment Order.
In written reasons later provided, the Tribunal acknowledged that the TTO of 18 August 2020 did not state whether it was a Community TTO or an Inpatient TTO. However, the Tribunal stated that its jurisdiction was dependent on whether JL was ‘subject to’ a TTO in fact, rather than on the validity of the original TTO. It rejected the argument that the original TTO’s defect meant that it did not have jurisdiction and decided that it did possess jurisdiction to make a Treatment Order. It noted that s 53 stated that the Tribunal ‘must conduct a hearing to determine whether to make a Treatment Order under section 55 in relation to a person who is subject to a Temporary Treatment Order’. The provisions said nothing about the Tribunal’s jurisdiction being dependent upon the validity of the Order. The making of a TTO was dependent upon a person being subject to an Assessment Order. The Tribunal described its role as being to decide whether or not to make a Treatment Order and, in doing so, to consider whether the treatment criteria applied to the person. The potential invalidity of the TTO or any subsequent orders were questions that could be considered if a judicial review application was made to the Supreme Court.
The Tribunal noted the treating team’s diagnoses of JL of schizophrenia, personality disorder and substance abuse disorder. It made an Inpatient Treatment Order in relation to him lasting for 26 weeks.
JL was detained from 14 September 2020 to about 27 September 2020 at a mental health service in reliance on this Inpatient Treatment Order. On 25 September 2020, the Inpatient Treatment Order was varied to a Community Treatment Order.
As a result of the events described above, JL was detained in a mental health service for about 40 days and required to participate in compulsory medical treatment for that period.
On 8 February 2021, a delegate of the authorised psychiatrist, who is the second defendant, applied to the Tribunal under s 54 for a Community Treatment Order in respect of JL. On 12 March 2021, the Tribunal held a hearing and made a Community Treatment Order under s 55 with a duration of 26 weeks until 9 September 2021.[5] JL did not attend that hearing. On 7 September 2021, the Tribunal made a further Community Treatment Order for 26 weeks expiring on 7 March 2022.
[5]CB 66.
The issues for determination are:
(a) Whether the authorised psychiatrist, by his delegate, made a valid TTO on 18 August 2020;
(b) Whether the Tribunal possessed jurisdiction to make an Inpatient Treatment Order on 14 September 2020;
(c) Whether the delegate of the authorised psychiatrist had the power to make the application for a further Treatment Order on 8 February 2021 and whether the Tribunal had the jurisdiction to make the further Treatment Order of 12 March 2021;
(d) Whether the authorised psychiatrist, by making the TTO on 18 August 2020 through his delegate, acted unlawfully for the purposes of s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’); and
(e) Whether the Tribunal, by making the Inpatient Treatment Order on 14 September 2020 and the further Community Treatment Order on 12 March 2021, acted unlawfully for the purposes of s 38(1) of the Charter.
I will consider these issues in the course of considering each of JL’s six grounds contained in his Amended Originating Motion.
Legislation – Mental Health Act 2014
The purposes of the Act stated in s 1 include:
(a) to provide a legislative scheme for the assessment of persons who appear to have mental illness and for the treatment of persons with mental illness…
Section 5 of the Act describes ‘treatment criteria’ as follows:
5 What are the treatment criteria?
The treatment criteria for a person to be made subject to a Temporary Treatment Order or Treatment Order are—
(a) the person has mental illness; and
(b)because the person has mental illness, the person needs immediate treatment to prevent—
(i)serious deterioration in the person’s mental or physical health; or
(ii) serious harm to the person or to another person; and
(c)the immediate treatment will be provided to the person if the person is subject to a Temporary Treatment Order or Treatment Order; and
(d)there is no less restrictive means reasonably available to enable the person to receive the immediate treatment.
Part 2 of the Act contains its objectives and the mental health principles. Section 10 contains the Act’s objectives, and the following are of particular relevance in this proceeding:
10 Objectives
This Act has the following objectives—
(a)to provide for the assessment of persons who appear to have mental illness and the treatment of persons who have mental illness;
(b)to provide for persons to receive assessment and treatment in the least restrictive way possible with the least possible restrictions on human rights and human dignity;
(c)to protect the rights of persons receiving assessment and treatment;
(d)to enable and support persons who have mental illness or appear to have mental illness—
(i)to make, or participate in, decisions about their assessment, treatment and recovery; and
(ii) to exercise their rights under this Act;
(e)to provide oversight and safeguards in relation to the assessment of persons who appear to have mental illness and the treatment of persons who have mental illness;
(f)to promote the recovery of persons who have mental illness;
(g)to ensure that persons who are assessed and treated under this Act are informed of their rights under this Act;
(h)to recognise the role of carers in the assessment, treatment and recovery of persons who have mental illness;
(i)to promote continuous improvement in the quality and safety of the mental health services provided by mental health service providers.
The mental health principles contained in s 11 include:
11 The mental health principles
(1) The following are the mental health principles—
(a)persons receiving mental health services should be provided assessment and treatment in the least restrictive way possible with voluntary assessment and treatment preferred;
(b)persons receiving mental health services should be provided those services with the aim of bringing about the best possible therapeutic outcomes and promoting recovery and full participation in community life;
(c)persons receiving mental health services should be involved in all decisions about their assessment, treatment and recovery and be supported to make, or participate in, those decisions, and their views and preferences should be respected;
(d)persons receiving mental health services should be allowed to make decisions about their assessment, treatment and recovery that involve a degree of risk;
(e)persons receiving mental health services should have their rights, dignity and autonomy respected and promoted;
…
(2)A mental health service provider must have regard to the mental health principles in the provision of mental health services.
(3)A person must have regard to the mental health principles in performing any duty or function or exercising any power under or in accordance with this Act.
Temporary Treatment Orders, Treatment Orders and functions of the Mental Health Tribunal
Sections 45, 46, 48, 49, 50(1), 53, 54(1), 55(1), 153, and 361 state:
45 What is a Temporary Treatment Order?
(1)A Temporary Treatment Order is an Order made by an authorised psychiatrist after assessing a person (in accordance with an Assessment Order or a Court Assessment Order) that enables the person who is subject to the Temporary Treatment Order to be compulsorily—
(a) treated in the community; or
(b)taken to, and detained and treated in, a designated mental health service.
(2)An Order referred to in subsection (1)(a) is a Community Temporary Treatment Order.
(3)An Order referred to in subsection (1)(b) is an Inpatient Temporary Treatment Order.
46 Authorised psychiatrist may make Temporary Treatment Order
(1)Subject to section 47, an authorised psychiatrist may make a Temporary Treatment Order in respect of a person who is subject to an Assessment Order or a Court Assessment Order if the authorised psychiatrist—
(aa)before examining the person, to the extent that is reasonable in the circumstances—
(i)has informed the person that the person will be examined by the authorised psychiatrist; and
(ii)has explained the purpose of this examination to the person; and
(a)has examined the person; and
(b)is satisfied that the treatment criteria apply to the person.
(2)In determining whether the treatment criteria apply to the person, the authorised psychiatrist—
(a)must, to the extent that is reasonable in the circumstances, have regard to all of the following—
(i)the person's views and preferences about treatment of his or her mental illness and the reasons for those views and preferences, including any recovery outcomes that the person would like to achieve;
(ii)the views and preferences of the person expressed in his or her advance statement;
(iii)the views of the person's nominated person;
(iv)the views of a guardian of the person;
(v)the views of a carer of the person, if the authorised psychiatrist is satisfied that making a Temporary Treatment Order will directly affect the carer and the care relationship;
(v)the views of a parent of the person, if the person is under the age of 16 years;
(vii)the views of the Secretary, if the person is the subject of a family reunification order or a care by Secretary order; and
(b)may consider other information communicated to the authorised psychiatrist by persons other than the person who was examined.
48 Community or Inpatient Temporary Treatment Order?
(1)An authorised psychiatrist who makes a Temporary Treatment Order in respect of a person must determine whether the Order is—
(a) a Community Temporary Treatment Order; or
(b) an Inpatient Temporary Treatment Order.
(2)For the purposes of making a determination under subsection (1), the authorised psychiatrist must, to the extent that is reasonable in the circumstances, have regard to all of the following—
(a)the person's views and preferences about treatment of his or her mental illness and the reasons for those views and preferences, including any recovery outcomes that the person would like to achieve;
(b)the views and preferences of the person expressed in his or her advance statement;
(c)the views of the person's nominated person;
(d)the views of a guardian of the person;
(e)the views of a carer of the person, if the authorised psychiatrist is satisfied that the determination will directly affect the carer and the care relationship;
(f)the views of a parent of the person, if the person is under the age of 16 years;
(g)the views of the Secretary, if the person is the subject of a family reunification order or a care by Secretary order.
(3)The authorised psychiatrist may only make a person subject to an Inpatient Temporary Treatment Order if the authorised psychiatrist is satisfied that treatment of the person cannot occur within the community.
49 Contents of a Temporary Treatment Order
A Temporary Treatment Order must—
(a)state whether the Order is a Community Temporary Treatment Order or an Inpatient Temporary Treatment Order; and
(b)include any information prescribed for the purposes of this section.
50Information and other requirements in relation to Temporary Treatment Orders
(1)As soon as practicable after making a Temporary Treatment Order, the authorised psychiatrist must ensure that reasonable steps are taken—
(a)to inform the person who is subject to the Temporary Treatment Order that he or she is subject to a Temporary Treatment Order; and
(b)to give the person a copy of the Temporary Treatment Order and a copy of the relevant statement of rights; and
(c)to explain to the person the purpose and effect of the Temporary Treatment Order; and
(d)to inform the person that he or she will receive treatment in relation to his or her mental illness.
…
53Tribunal to determine whether to make person subject to Treatment Order
(1)The Tribunal must conduct a hearing to determine whether to make a Treatment Order under section 55 in relation to a person who is subject to a Temporary Treatment Order.
(2)The hearing under subsection (1) must be conducted before the expiry of the Temporary Treatment Order.
54Authorised psychiatrist may make an application for a Treatment Order
(1)An authorised psychiatrist may apply to the Tribunal for a Treatment Order in relation to a person who is currently subject to a Treatment Order if the authorised psychiatrist—
(a) has examined the person; and
(b)is satisfied that the treatment criteria apply to the person.
…
55 Making a Treatment Order
(1)After conducting a hearing under section 53, 54, 58 or 60, the Tribunal must—
(a)make a Treatment Order in respect of a person if the Tribunal is satisfied that the treatment criteria apply to the person and determine—
(i) the duration of the Order; and
(ii) whether the Order is—
(A) a Community Treatment Order; or
(B) an Inpatient Treatment Order; or
(b)revoke the Order to which the person is currently subject if the Tribunal is not satisfied that the treatment criteria apply to the person.
Sections 153 states:
153 Functions of the Tribunal
The functions of the Tribunal are—
(a) to hear and determine the following—
(i)a matter in relation to whether a Treatment Order should be made;
(ii)an application to revoke a Temporary Treatment Order or Treatment Order;
…
Section 361 states:
361 Validity of order if there is an error
(1)The validity of an order made under this Act (other than an order made by the Tribunal) or any other document made or prepared under this Act is not affected by an error in it unless—
(a)the error relates to the grounds on which the order or document was made and proper grounds for making the order or document do not exist; or
(b)as a result of the error, the order or document does not comply with a mandatory requirement of this Act relating to the making of the order or document.
(2)If an error in an order or other document does not affect the validity of the order or document, the person who made the order or document may correct the error.
The persons who appeared at the hearing
JL was represented at the hearing. The first defendant, the Mental Health Tribunal, made a Hardiman appearance. The second defendant, the authorised psychiatrist, did not formally make a Hardiman appearance. At the directions hearing, he ‘formally [notified] the Court’ that he did not intend to appear at any hearings unless specifically requested by the Court. However, he was represented at the hearing and made some submissions about the validity of the TTO. He wished to contend that the delegate had complied with the requirements of ss 46 and 48 in making an Inpatient TTO based on medical notes which were said to detail the mental health decisions made about JL. He made two affidavits about events leading to the making of the TTO, but did not press their tender after JL made clear that his challenge to the TTO was limited to its failure to state the matters required by s 49. The authorised psychiatrist was concerned whether the amicus curiae, who is described below, would act as a true contradictor and would make submissions about whether he was a public authority for the purposes of the Charter. Ultimately, I permitted the amicus curiae to make submissions about that issue.
The Secretary of the Department of Health (‘the Secretary’) was given leave to appear as amicus curiae to ensure that there was a contradictor.
JL, in oral and written submissions, challenged the participation of the Secretary as amicus curiae. In particular, JL submitted that the Secretary had acted in a manner ‘inconsistent with the role of an amicus curiae’ and had repeatedly contended that JL’s had failed to establish particular grounds of review or that his application should be dismissed.[6] Furthermore, the Secretary had not just suggested that there were any errors of law in JL’s submissions, but had instead put forth a diametrically opposed construction of the legislation.
[6]CB 108.
However, the Court has a discretion whether to allow a person to appear as amicus curiae. The functions of an amicus curiae are more constrained than those of either contradictors or interveners. As Wilcox J stated in Bropho v Tickner, the amicus curiae’s role is usually:
confined to assisting the court in its task of resolving the issues tendered by the parties by drawing attention to some aspect of the case which might otherwise be overlooked.[7]
[7]Bropho v Tickner (1993) 40 FCR 165, 172-3.
The principal role of an amicus curiae is to provide assistance to the Court as Brennan CJ explained in Levy v The State of Victoria:
The hearing of an amicus curiae is entirely in the Court's discretion. That discretion is exercised on a different basis from that which governs the allowance of intervention. The footing on which an amicus curiae is heard is that that person is willing to offer the Court a submission on law or relevant fact which will assist the Court in a way in which the Court would not otherwise have been assisted. In Kruger v The Commonwealth, speaking for the Court, I said in refusing counsel's application to appear for a person as amicus curiae:
"As to his application to be heard as amicus curiae, he fails to show that the parties whose cause he would support are unable or unwilling adequately to protect their own interests or to assist the Court in arriving at the correct determination of the case. The Court must be cautious in considering applications to be heard by persons who would be amicus curiae lest the efficient operation of the Court be prejudiced. Where the Court has parties before it who are willing and able to provide adequate assistance to the Court it is inappropriate to grant the application."
It is not possible to identify in advance the situations in which the Court will be assisted by submissions that will not or may not be presented by one of the parties nor to identify the requisite capacities of an amicus who is willing to offer assistance. All that can be said is that an amicus will be heard when the Court is of the opinion that it will be significantly assisted thereby, provided that any cost to the parties or any delay consequent on agreeing to hear the amicus is not disproportionate to the assistance that is expected.[8]
[8]Levy v The State of Victoria (1997) 189 CLR 579, 604-5 (citations omitted).
In assisting the Court, an amicus curiae may offer different constructions of the law to those advanced by some or all of the parties. In doing so, the amicus is acting within their proper role, if, as in this case, they are providing assistance to the Court. JL noted that the Secretary submitted that the proceeding should be dismissed, but that was the logical outcome of the interpretation of the Act which the Secretary advanced to assist the Court.
The Secretary did not seek to tender evidence, but made submissions related to the construction and application of the law and the interpretation and operation of the Act. These were important issues to be properly resolved that otherwise would only have been addressed by JL. The Secretary’s submissions assisted the Court.
I do not consider that the Secretary’s submissions exceeded the role of providing assistance to the Court.
Ground 1: The Temporary Treatment Order failed to comply with a mandatory requirement for its making.
JL described this ground as raising the following issue: Did the delegate make a valid Temporary Treatment Order on 18 August 2020?
JL argued that the Temporary Treatment Order made by the authorised psychiatrist on 18 August 2020 and corrected on 14 September 2020 was invalid, as it did not comply with the mandatory obligation in s 49(a) because it did not state whether it was a Community TTO or an Inpatient TTO. The delegate did not complete paragraph 4 of the form, which provided for the delegate to specify whether she was making a Community TTO or an Inpatient TTO.
Both parties made submissions about the purposes of the Act, which it is convenient to mention at this point. JL submitted that the Mental Health Act contains safeguards to protect the rights of people with mental illness. The second reading speech states that the Act aims to:
…promote recovery-oriented practice, to minimise the use and duration of compulsory treatment, to safeguard the rights and dignity of people with mental illness, and to enhance oversight while encouraging innovation and service improvement.[9]
[9]Victoria, Parliamentary Debates, Assembly, 20 February 2014, 458 (Mary Wooldridge, Minister for Health).
The Secretary submitted that the compulsory treatment provisions in the Act were ‘inherently beneficial’ to the person concerned rather than strictly coercive.[10] They were necessary to permit the treatment of mental illness in cases when the patient was unable to consent to the treatment.
[10]Citing Re Kracke and the Mental Health Review Board [2009] 29 VAR 1 (‘Re Kracke’).
Applying these purposes of the compulsory treatment provisions, the Secretary submitted that the power of an authorised psychiatrist to make a TTO and the relevant considerations to the making of the order were contained in s 46 of the Act, which is subject to s 47 in that the authorised psychiatrist or the delegate who made the Assessment Order cannot make the TTO. The delegate’s failure to comply with s 49 was a non-compliance with Act’s requirement of what the TTO must state rather than non-compliance with the Act’s substantive requirements for making the order.
Analysis of Ground 1
The objective in s 10(b) emphasises the importance of providing assessment and treatment to a person in the least restrictive way possible with the least possible restrictions on human rights and human dignity, while protecting the rights of those receiving assessment and treatment. The Act’s objectives and the mental health principles in s 11 emphasise that services should be provided with the aim of bringing about the best possible therapeutic outcomes and promoting recovery and full participation in community life. Many of the powers contained in the Act, including the provisions for compulsory treatment, limit the fundamental human right to liberty and security of person, which are pillars of a free society. No citizen can be deprived of their freedom by mere administrative decision or action but only by clear statutory mandate.[11]
[11]Re Bolton; Ex parte Beane (1987) 162 CLR 514, 528 (Deane J).
At the same time, compulsory treatment orders are intended to enable treatment of person who meets the treatment criteria to prevent serious deterioration in their health or serious harm to them or another person. The provisions of the Act should be read, where possible, in a way that empowers the Tribunal and authorised psychiatrists to make appropriate orders for persons who do satisfy the treatment criteria, provided that those orders provide for treatment in the least restrictive way possible; that the persons are involved in all decisions about their assessment, treatment and recovery and have their rights, dignity and autonomy respected and promoted.[12] As Bell J noted when considering other parts of the Act, the ‘no less restrictive treatment’ test, along with the requirement to take the views and preferences of the person into account and the provisions that promote supported decision-making represent ‘a paradigm shift’ in the design of the mental health legislation.[13]
[12]Section 11(1)(b)-(e) of the Act.
[13]PBU & NJE v Mental Health Tribunal (2018) 56 VR 141, 218 [250].
Keeping these considerations in mind, I consider that the word ‘must’ indicates that s 49 imposes a mandatory obligation on the authorised psychiatrist or delegate when making the written TTO to state whether it is a Community TTO or an Inpatient TTO. The ordinary meaning of the word ‘must’ conveys an obligation or a necessity. Nothing in s 49(a) conveys any different meaning. Section 50 requires that as soon as practicable after making a TTO, the authorised psychiatrist must ensure that reasonable steps are taken to inform the person concerned that they are subject to a TTO; give the person a copy of the TTO and a copy of the statement of rights; explain to the person the purpose and effect of the TTO and inform the person that they will receive treatment in relation to their mental illness. These requirements ensure that the person receiving mental health services understands how they may be treated and what their rights are. The written TTO complements the information that must be provided to the person verbally.
The error in the form signed by the delegate on 18 August 2020 was not a failure to consider the type of TTO to be made, but a failure to state whether it was a Community TTO or an Inpatient TTO.
On one view, the error on the form was minor, as it was a failure to tick a box in circumstances where apparently the delegate intended to make a TTO. There is no evidence that the other steps required by s 50 were not taken. However, a different perspective emerges when the likely reasons for the requirements in s 49 are considered. Those reasons probably include the importance of the Order and its effect on the liberty of the person who is subject to it. Another reason is likely to be that some people may not have a precise recollection of information provided to them verbally. Then there is the consideration that if a TTO does not state whether the person is to receive compulsory treatment in the community or is to be compulsorily taken to, and detained in, a designated mental health service, the person, and those who care for them, may be uncertain as to where they are to receive treatment and the duration of the Order. In addition, without an Order containing the information required by s 49, mistakes or misunderstandings may occur in the compulsory treatment provided.[14]
[14]The more coercive nature of an Inpatient Treatment Order is reflected by s 48(3) of the Act, which provides that an ‘authorised psychiatrist may only make a person subject to an Inpatient [TTO] if the authorised psychiatrist is satisfied that treatment of the person cannot occur within the community’.
I therefore consider that the requirements in s 49 as to the contents of a TTO are mandatory.
The effect of s 361 on the validity of the TTO of 18 August 2020
The next question is whether the TTO had no legal effect because of the failure to include in it the matters required by s 49. In the usual case, the question whether an error of the kind under consideration produces invalidity is answered by the interpretation of the statute conferring the power that is being exercised in order to identify Parliament’s intention, the materiality of the error and the consequences that would follow from a decision that the error results in the order having no legal effect.[15] The Secretary referred to the principle in Project Blue Sky Inc v Australian Broadcasting Authority[16] and submitted that a TTO that did not contain the statement required by s 49 was not necessarily invalid.
[15]See, e.g., Project Blue Sky Inc, 388-9 (McHugh, Gummow, Kirby and Hayne JJ).
[16](1998) 194 CLR 355 (‘Project Blue Sky’).
JL argued that s 361 was a limited form of a privative clause, but that it did not prevent the error in the TTO from affecting its validity and did not seek to protect it from judicial review. The error fell within the exception contained in s 361(1)(b), because, as a result of the error, the TTO did not comply with a mandatory requirement of the Act contained in s 49(a) relating to the making of the Order. Consequently, s 361(1) did not operate to prevent the error from invalidating the TTO.
The Secretary argued that s 361(1)(b), when referring to ‘a mandatory requirement of the Act relating to the making the order’, referred to substantive requirements rather than any recording of that order in a document as s 49 required. The Secretary thereby distinguished between an ‘order’ and a ‘document’ as referred to in s 361(1) and contended that the TTO was a ‘document’ rather than an ‘order’ and therefore outside the scope of s 361(1)(b).
The Secretary noted that this conclusion would be consistent with authorities dealing with materiality and the need for an error or defect to be material to render an order invalid.[17]
[17]Citing Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, 134 (Kiefel CJ, Gageler and Keane JJ).
Analysis of the submissions about s 361
Section 361 changes the usual interpretive process because it contains its own statement of the type of errors which will affect the validity of an Order. The term ‘mandatory requirement’ in s 361(1)(b) of the Act is best understood as referring to things that must be done. Since the word ‘must’ in s 49(a) imposes a mandatory requirement to state the type of TTO, the failure to do so is best characterised as a failure to comply with a mandatory requirement under the Act.
The Secretary’s submission is not supported by the text or the purpose of the Act. The interpretation of legislation starts with the meaning of the text whilst, at the same time, regard is to be had to the context and purpose of the legislation.[18] In addition, the Act, so far as it is possible to do so consistently with its purpose, is to be interpreted in a way that is compatible with human rights.[19] While s 49 does not refer to making an order, which distinguishes it from ss 45-48, it is nonetheless the case that s 49 requires a TTO to state in writing whether it is a Community TTO or an Inpatient TTO. Since s 49 indicates that a TTO is to be written, the verb ‘must state’ is to be understood as containing an essential requirement for a valid TTO. Consequently, s 361(1)(b) operates so that the error in the TTO in failing to contain the statement required by s 49(a) affected its validity.
[18]SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, [14].
[19]Charter, s 32(1).
Neither JL or the Secretary specifically addressed what s 361 means when it refers to errors affecting the validity of orders. Section 361 leaves open the extent to which the validity of orders are affected. As I understood it, they assumed that an error of the kind described in s 361(1)(a) or (b) rendered an order invalid in the sense of having no legal effect or force. I will proceed on that basis that the TTO had no legal effect or force.
It follows that the treating psychiatrist had no general power to amend the TTO at the Tribunal hearing on 14 September 2020.[20] The power under s 361(2) to correct an error in the Order only existed if the error did not affect the validity of that Order. In this case, the error in the Order affected the validity of the TTO, with the result that there was no power to amend it.
[20]Cf the amendment power in the Mental Health Act 1986 s 121.
Conclusion
Ground 1 is established.
Grounds 2 and 3: The first defendant, the Mental Health Tribunal, acted in excess of jurisdiction in making the First Treatment Order, and the second defendant, the authorised psychiatrist, had no power to make the Application for the First Treatment Order
JL described this ground as raising the question: Did the Tribunal have jurisdiction to conduct a hearing and power to make a Treatment Order?
The authorised psychiatrist, or the delegate, were required as soon as practicable after the TTO was made to notify the Tribunal that the Order had been made. Section 53(1) provides that the Tribunal ‘must conduct a hearing to determine whether to make a Treatment Order under s 55 in relation to a person who is subject to a [TTO]’. Therefore, the Tribunal’s only had jurisdiction to make the Treatment Order on 14 September 2020 if JL was ‘subject to’ a TTO.
JL argued that the Inpatient Treatment Order made by the Tribunal, as varied to become a Community Treatment Order, was invalid because he had never been subject to a TTO, as the purported TTO was invalid because it did not state the matters required by s 49. Therefore, the Tribunal did not have jurisdiction to make the Inpatient Treatment Order. The TTO could have been set aside or declared to be a nullity by this Court on a judicial review application made before the Tribunal had commenced its hearing on 14 September 2020.
Similarly, JL argued that because the Tribunal’s first Treatment Order was invalid, the delegate of the authorised psychiatrist had no authority in February 2021 to apply to the Tribunal under s 54 for the second Treatment Order, and the Tribunal had no power to make it. Section 54 contained a precondition that the person to be subject to a further Treatment Order was, at the time of the Tribunal hearing, subject to a valid Treatment Order.
JL referred to a number of Tribunal decisions in which differing approaches have been adopted to the effect of errors contained in orders. They did not reveal a consistent Tribunal practice or legal analysis in such cases.
The Secretary submitted that the Tribunal had jurisdiction to make the Treatment Orders on 14 September 2020 and 12 March 2021, and, in the latter case, that the authorised psychiatrist had the power to apply for the further Treatment Order. The words ‘subject to a Temporary Treatment Order’ or ‘subject to a Treatment Order’ contained in ss 53 and 54 include persons who are in fact, subject to, a TTO, even if it is legally invalid. The Secretary argued that the phrase ‘subject to’ should not be read strictly as ‘legally subject to’, but applied to circumstances where the person was subject to a TTO in fact. JL was subject to a TTO in fact, as he had been compulsorily detained and treated on the basis that the TTO of 18 August 2020 was in force.
In support of this submission, the Secretary relied on sections of the Act, whose purpose would be frustrated by reading the words ‘subject to’ as requiring that the person be subject to a valid order. For example, s 60 allows a person subject to a TTO to apply to the Tribunal to have the order revoked. Secondly, ‘entitled patients’, who are defined in s 78 as including ‘[people] who [are] subject to a [TTO]’, have the rights described in Division 4 of Part 5, including the right to obtain a second psychiatric opinion. In both instances, interpreting ‘subject to’ as including a person who is subject to a TTO in fact empowers that person rather than limits their rights. However, the Secretary acknowledged that adopting that interpretation of the words ‘subject to’ would have a contrary effect in some instances, including in the application of s 352(4), which empowers the authorised psychiatrist to arrange for the apprehension of a person subject to an Inpatient Order who is absent without leave.
In an alternative submission, the Secretary relied on the cases that deal with the jurisdiction of tribunals to determine applications for the review of administrative decisions on the merits. That jurisdiction has been interpreted as extending to a decision made in fact regardless of whether it is legally valid. The Secretary contended that similar reasoning supported the conclusion that the Tribunal’s jurisdiction would not be affected by an invalidity in the TTO. Finally, the Secretary submitted that the scheme of the Act, including the powers in s 153, gave the Tribunal general power to hear and determine matters concerning the making of a Treatment Order, even if no valid TTO had previously been made.[21]
[21]Citing Mercantile Mutual Life Insurance Co v Australian Securities Commission (1993) 40 FCR 409, 421-2.
Analysis of Grounds 2 and 3: whether the Tribunal had jurisdiction to make the Treatment Order
It is important to state at the outset that the Tribunal as part of hearing an application has the power to determine whether a matter is within its jurisdiction. The validity of that determination is, of course, subject to any decision of this Court on a judicial review application. As Fullagar J stated in R v Blakely; Ex parte Association of Architects, Engineers, Surveyors and Draughtsmen of Australia:[22]
Generally speaking, when a tribunal, other than a superior Court in the technical sense, is called upon to exercise jurisdiction, it must, of necessity, begin by considering for itself the preliminary question whether it possesses the jurisdiction invoked. That question may depend on questions of law or questions of fact or on questions both of law and of fact.
[22](1950) 82 CLR 54 at 90 and at 69-70 (Latham CJ), at 79 (McTiernan J), at 82-3 (Williams J), at 98-9 (Kitto J).
The Act envisages that the Tribunal may hear three applications of present relevance. The first is when the Tribunal under s 53(1) conducts a hearing, after it has been notified of the making of a TTO, to determine under s 55 whether to make a Treatment Order in respect of the person. Such a hearing must be conducted before the expiry of the TTO. The second is when the authorised psychiatrist makes an application to the Tribunal under s 54 for a Treatment Order. The third is an application under s 60 to revoke a TTO or a Treatment Order.
I do not consider that the Tribunal, when exercising jurisdiction under ss 53 and 55, is required to investigate whether the TTO, under which a person has been treated, and of which the Tribunal has been notified, was validly made. Rather the Act expects that the Tribunal will consider the person’s present circumstances and decide whether a Treatment Order should be made.
For the reasons given, in my opinion, the TTO was legally invalid. But that does not mean that JL was not subject to such an order. JL had been compulsorily treated on the basis that the TTO was valid in the sense that it gave authority for him to be so treated. He was detained under it and compulsorily treated with drugs. The words ‘subject to’ can mean being under the rule or authority of another.[23] The Act uses the words ‘subject to’ on many occasions and often to confer power or jurisdiction to permit compulsory treatment or to conduct hearings in relation to persons.
[23]Macquarie Dictionary (8th ed, 2020) ‘subject’ (def 18).
An invalid decision can have legal consequences as Gageler J explained in State of New South Wales v Kable:
The factual existence of the thing might be the foundation of rights or duties that arise by force of another, valid, law. The factual existence of the thing might have led to the taking of some other action in fact. The action so taken might then have consequences for the creation or extinguishment or alteration of legal rights or legal obligations, which consequences do not depend on the legal force of the thing itself. For example, money might be paid in the purported discharge of an invalid statutory obligation in circumstances which make that money irrecoverable, or the exercise of a statutory power might in some circumstances be authorised by statute, even if the repository of the power acted in the mistaken belief that some other, purported but invalid exercise of power is valid.[24]
[24](2013) 252 CLR 118, [52] (citations omitted).
The High Court referred to this issue recently in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft[25] in adopting an interpretation of the words ‘removed…from Australia’ as removed in fact, rather than removed in accordance with law.
[25](2021) 391 ALR 270, [20]–[21].
To apply Gageler J’s words, this is a case where ‘the factual existence of the thing’ has ‘led to the taking of some other action in fact’. Even when a decision is described as a nullity or invalid, it can still have legal consequences because of actions taken in reliance on it.[26]
[26]Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 612-3, 618 and 643-7 and M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 6th ed, 2017) 739.
As the joint judgment in the High Court decision in Hossain v Minister for Immigration and Border Protection stated: [27]
Ordinarily, a statute which impliedly requires that condition or another condition to be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition. The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance.
[27]Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, 134 (Kiefel CJ, Gageler and Keane JJ).
In the recent decision of Moorabool Shire Council v Minister for Planning,[28] Richards J considered a number of the relevant authorities and stated:
None of these distinctions detract from the logic of the proposition that ‘undeniably void acts may have legal consequences’, including where ‘the factual existence of a void act may serve as the basis for other decisions’.[29]
[28][2021] VSC 701.
[29]Ibid, [70] (citation omitted).
In my opinion, the Tribunal’s jurisdiction under s 53 exists when a person is placed under the operation of a TTO. The person is then subject to it as a matter of fact. When that occurs, the Tribunal is given jurisdiction to decide whether to make a Treatment Order or to determine an application made for the TTO’s revocation. In my opinion the words ‘a person who is subject to a Temporary Treatment Order’ contained in s 53(1) refers to a person who is in fact subject to a TTO.
To interpret the Tribunal’s jurisdiction in s 53 and s 55 as containing a requirement that the TTO be valid in law would require the Tribunal to entertain arguments about its validity. If the arguments succeeded in establishing that the TTO was not valid, then those who had made the Assessment Order or the TTO and who considered that the person should be subject to a Treatment Order, would have to recommence the process, beginning with the Assessment Order procedure. If, however, it is sufficient that the person has been subject to a TTO as a matter of fact, then the Tribunal can decide on the basis of the person’s current condition after hearing from the person’s legal and medical representatives, and from the psychiatrists, whether the treatment criteria apply and whether it must make a Treatment Order. An interpretation of s 53 that enables that path to be followed promptly best achieves the purpose, objectives and policy of the Act. The possibility of challenges being made to an Assessment Order or a TTO at any point along the path to the Tribunal on the basis that the previous order was not valid would complicate and undermine the operation of the legislative scheme. I agree with the Secretary that to remove a compulsory patient’s right to have the Tribunal review an authorised psychiatrist’s decision merely because of an error in the document containing the TTO would be contrary to the objectives of the Act. It may delay the appropriate treatment of the patient.
The fact that JL could have successfully applied to this Court by judicial review application to set aside the TTO before the Tribunal commenced its hearing on 14 September 2020 is not decisive of the question whether the Tribunal possessed jurisdiction to make a Treatment Order on that day. The TTO had not been set side or declared to be invalid and, in my opinion, JL remained subject to it.
Good policy reasons exist for reading the words ‘subject to an order’ as applying to an order in fact or purportedly in operation, even if it has legal defects. Take s 60 which gives a person who is subject to a TTO the right to apply at any time while it is in force to have it revoked. If the Tribunal’s jurisdiction was limited to applications concerning valid orders, it would have no power to determine a revocation application. In order to obtain a ruling that the TTO was of no effect, the person would have to commence judicial review proceedings in this Court.
The scheme of the Act shows an intention that a person who has a mental illness and who satisfies the treatment criteria will proceed promptly through the stages of Assessment and TTO. It will then be for the Tribunal to decide whether a Treatment Order should be made. The Act provides short time limits within which steps must be taken. An Assessment Order made under s 30, in accordance with s 34, has a duration of 24 hours in the case of a Community Assessment Order, or, in the case of an Inpatient Assessment Order a duration of 24 hours after the person who is subject to the Order is received at a designated mental health service in accordance with the Order; or 72 hours, if the person who is subject to the Order is not received at a designated mental health service. A person who is subject to an Assessment Order is to be examined by an authorised psychiatrist as soon as practicable after the Order is made in the case of a Community Assessment Order; or the person is received at a designated mental health service, in the case of an Inpatient Assessment Order.[30] The authorised psychiatrist may revoke the Assessment Order, or a different authorised psychiatrist may make a TTO in respect of a person who is subject to an Assessment Order.[31] Such an order remains in force for 28 days unless revoked. As soon as is practicable after a TTO is made, the authorised psychiatrist must notify the Tribunal of its making and the Tribunal must conduct a hearing to determine whether to make a Treatment Order. Such an Order cannot be made once the TTO has expired.[32]
[30]The Act, s 36.
[31]The Act, s 46.
[32]The Act, s 53(2).
The law recognizes that in some circumstances decisions operating in fact, even though legally invalid, may be reviewed by a tribunal given statutory jurisdiction to review administrative decisions. Examples of this approach include Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd,[33] and, in this Court, the decision of the Full Court In the matter of XY[34] in respect of the Mental Health Act 1986. In this case, the Tribunal is not exercising a merits review function of a previous decision, but is making a fresh decision about whether to make a Treatment Order under ss 53 and 55 in respect of a person.[35] Nevertheless, the policy factors mentioned in those judgments are relevant to the determination of the jurisdiction of the Tribunal in this case.
[33](1979) 24 ALR 307, 314; approved by the High Court in Plaintiff M174/2016 v Minister for Immigrationand Border Protection (2018) 264 CLR 217, [39]-[52].
[34](Full Court of the Supreme Court of Victoria, Fullagar, Brooking and Marks JJ, 6 March 1992); [1992] VicSC 83 (6 March 1992). See also Murray v Director-General Health & Community Services Victoria (Supreme Court of Victoria, Eames J, 23 June 1995); [1995] VicSC 311 (23 June 1995).
[35]The Act, s 53(2).
I do not consider that s 153(a)(i) adds to the jurisdiction of the Tribunal in a manner relevant to the present proceeding. Sections 53, 54 and 55 are specific conferrals of jurisdiction in respect of applications for Treatment Orders. The description of a function of the Tribunal ‘to hear and determine…a matter in relation to whether a Treatment Order should be made’ does not add to that jurisdiction.[36]
[36]Anthony Horden and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1.
Conclusion
Grounds 2 and 3 are not established.
Ground 4: The first defendant acted in excess of jurisdiction in making the Second Treatment Order
On 8 February 2021, a delegate of an authorised psychiatrist applied to the Tribunal for a further Treatment Order in relation to JL. On 12 March 2021, the Tribunal made a further Treatment Order.
Section 54(1) empowers an authorised psychiatrist to apply to the Tribunal for a further Treatment Order in relation to a person ‘who is currently subject to a Treatment Order’. For the reasons I have previously given, I consider that the Treatment Order made by the Tribunal on 14 September 2020 was valid. Therefore, JL was subject to a Treatment Order when the delegate applied to the Tribunal for a further Treatment Order. That application was therefore valid as was the further Community Treatment Order made by the Tribunal.
Conclusion
Ground 4 is not established.
Ground 5: Did the Authorised Psychiatrist, in making the TTO on 18 August 2020, through his delegate, act unlawfully for the purposes of the Charter?
The relevant provisions of the Charter are as follows.
4What is a public authority?
(1) For the purposes of this Charter a public authority is:(a)a public official within the meaning of the Public Administration Act 2004; or
(b)an entity established by a statutory provision that has functions of a public nature; or
(c)an entity whose functions are or include functions of a public nature, when it is exercising those functions on behalf of the State or a public authority (whether under contract or otherwise)…
…
(j)a court or tribunal except when it is acting in an administrative capacity…
(2) In determining if a function is of a public nature the factors that may be taken into account include—
(a)that the function is conferred on the entity by or under a statutory provision;
(b)that the function is connected to or generally identified with functions of government…
…
10 Protection from torture and cruel, inhuman or degrading treatment
A person must not be—
…
(c)subjected to medical or scientific experimentation or treatment without his or her full, free and informed consent.
…
21 Right to liberty and security of person
(3)A person must not be deprived of his or her liberty except on grounds, and in accordance with procedures, established by law.
…
38 Conduct of public authorities
(1)Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.
(2)Subsection (1) does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision.
Example
Where the public authority is acting to give effect to a statutory provision that is incompatible with a human right.
The Charter issues relating to the TTO are: was the authorised psychiatrist a ‘public authority’ for the purposes of s 4 of the Charter? If so, did the authorised psychiatrist, or his delegate, act unlawfully for the purposes of the first limb of s 38(1) of the Charter?
JL submitted that the authorised psychiatrist was a public authority within the meaning of s 4(1)(b). Under that paragraph, a public authority for the purposes of the Charter includes ‘an entity established by a statutory provision that has functions of a public nature’. While the Secretary made submissions about s 4(1)(a) and s 4(1)(c), since JL did not rely on those provisions, I will only consider the application of s 4(1)(b).
JL submitted that the Tribunal and the authorised psychiatrist acted unlawfully for the purposes of s 38 of the Charter, because the delegate’s action in making the TTO was incompatible with his human rights contained in ss 10(c) and 21(3).
The Secretary submitted that the authorised psychiatrist was not a public authority in the circumstances of this case. The Secretary argued that it was artificial to describe an authorised psychiatrist as ‘established’ by the Act because a person must already be a psychiatrist to be ‘appointed’ as an ‘authorised psychiatrist’.[37] In addition, not all of an authorised psychiatrist’s functions are of a public nature, and, therefore, it was inaccurate to describe an authorised psychiatrist as a public authority within the meaning of s 4(1)(b).
[37]The Act, s 150.
Section 4(2) of the Charter provides guidance on what constitutes ‘functions of a public nature’. In particular, JL emphasised s 4(2)(a) and s 4(2)(d), which permit the following factors to be taken into account in determining if a function is of a public nature: (a) that the function is conferred on the entity by or under a statutory provision; and (d) that the entity is publicly funded to perform the function.
The authorised psychiatrist was the medical director of North Western Mental Health. He was appointed to that position under s 150 of the Act. He could exercise functions under the Act, including making a TTO and applying a Treatment Order. Both of those are ‘functions of a public nature’.
I therefore conclude that the authorised psychiatrist, when making a TTO, is a public authority.
A public authority will act unlawfully for the purposes of s 38(1) if he acts in a way that is incompatible with human rights or fails to give proper consideration to human rights.
Subjecting JL to compulsory inpatient medical treatment both engaged and limited his human rights contained in s 10(c) and s 21(3). Because the TTO made by the delegate on 18 August 2020 did not comply with a mandatory requirement, the limitations that it imposed were not imposed lawfully. Therefore, the TTO was unlawful as it was the action of a public authority in a way that was incompatible with JL’s human rights. It led to his compulsory detention and treatment.
However, the authorised psychiatrist did not himself take any action in respect of JL, rather the TTO was made by his delegate, another psychiatrist, who is not a party to this proceeding. The evidence does not reveal who detained JL or compulsorily treated him after the TTO was made. I received limited submissions about whether a declaration could be made against the authorised psychiatrist, when his delegate acted in a way that was incompatible with JL’s human rights. I will receive further submissions about whether a declaration or other order can, and should, be made in those circumstances.
As I have found that the TTO was invalidly made, consideration of the second limb of s 38(1) is not required and I did not understand it to be relied on in respect of the TTO. As the limitations imposed by the TTO were not imposed lawfully, they were not done under law and cannot amount to a justified limitation of JL’s human rights under s 7(2).
Conclusion
I will decide whether ground 5 has been established after receiving any further submissions about the significance of the fact that the delegate made the TTO.
Ground 6: In acting outside jurisdiction, and failing to give proper consideration to JL’s human rights, the Mental Health Tribunal acted unlawfully pursuant to s 38(1) of the Charter
JL and the Secretary accepted that the Mental Health Tribunal was a public authority within s 4(1)(b). Section 4(1)(j) also supports that conclusion.[38] I proceed on the basis that the Tribunal was a public authority.
[38]PBU & NJE v Mental Health Tribunal (2018) 56 VR 141.
I have concluded that the Tribunal did have jurisdiction to make the Treatment Order, and accordingly the Order was not unlawful in the sense of being made without jurisdiction.
However, to make a valid Treatment Order, the Tribunal had to consider whether the treatment criteria in the Act applied to JL. The Tribunal also had to take into account JL’s rights under the Charter.
Near the commencement of its reasons the Tribunal stated:
To make this decision the Tribunal had to consider whether the treatment criteria applied to you. The treatment criteria are listed in the Mental Health Act 2014 (‘the Act’) and are attached at the end of this document. The Tribunal also had to take into account your rights under the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’).
The Tribunal, in deciding whether the treatment criteria applied to JL, had to consider four matters specified in s 5. First, it had to consider JL’s mental health and whether he had experienced symptoms of a mental illness. In its written reasons, the Tribunal accepted the treating team’s evidence as to JL’s mental state at the time of his admissions in May and August 2020 and concluded that he had experienced symptoms of a mental illness characterised by a significant disturbance of thought and mood. Secondly, the Tribunal had to consider whether the symptoms JL experienced needed immediate treatment to try to stop his mental or physical health seriously deteriorating or to prevent serious harm to him or someone else. On this issue, the Tribunal accepted the treating team’s evidence and concluded that JL needed immediate treatment to prevent serious deterioration in his mental health and serious harm to himself and others. Thirdly, the Tribunal had to consider whether JL would receive immediate treatment if he were subject to a TTO or a Treatment Order. The Tribunal was satisfied that he would. Fourthly, the Tribunal had to consider whether JL would still receive immediate treatment if he were a voluntary patient. The Tribunal concluded that, if JL were a voluntary patient, he would not consistently take his medication and that there was no less restrictive way of his treatment continuing without being on a compulsory Treatment Order.
Having considered these mandatory matters, the Tribunal stated its overall conclusions as follows:
5. Decision
Given the Tribunal decided that all of the treatment criteria applied to you, the Tribunal had to:
·make a Treatment Order;
·decide whether the Treatment Order would be for treatment in the community or in hospital; and
·decide the length of the Treatment Order.
Treatment in hospital or in the community
The Tribunal noted that you had now been in hospital for nearly 4 weeks, that you were still experiencing psychotic symptoms and paranoia towards ASIO and that you remained irritable and aggressive requiring prolonged treatment in the high dependency unit with several episodes of seclusion. Due to the severity of your symptoms, the Tribunal concluded your treatment could not be provided in the community at the time of the hearing and so the Tribunal made an [Inpatient Treatment Order].
Length of the Treatment Order
The treating team sought a 6-month Order that would start with more time as an inpatient where you could be closely monitored due to the risks to yourself and others and to see the effect of the zuclopenthixol depot on your delusions. The treating team believe that when you are well enough to be discharged from hospital, a Community Treatment Order will be necessary considering the need for continuing close support and monitoring and also the risks involved including substance misuse. In this respect the Tribunal was pleased to read in the Report that you wish to engage in drug counselling, maintain abstinence on discharge and also that your sister wishes to help in whatever way she can to facilitate your recovery.
Taking all this into account, the Tribunal concluded that a 26-week Order was necessary. Twenty-six weeks is the longest this Treatment Order can last. The treating psychiatrist must revoke the Treatment Order at any time if they believe the treatment criteria no longer apply.
[JL], the Tribunal understands you will be unhappy that compulsory treatment is to continue but we urge you to embrace the opportunities and benefits that this can bring and to cooperate with the treating team to maximise the chances of you achieving the best recovery possible.
Human Rights
[JL], the Tribunal understands that the Order limits your rights to privacy, liberty, freedom of movement and freedom from medical treatment without consent, but because the treatment criteria have been met those limitations were reasonable and so allowed under the Charter.
The substantive limb of s 38(1) of the Charter
JL submitted that because the Tribunal had acted in excess of its jurisdiction in making the Treatment Orders, the Tribunal impermissibly limited his rights contained in s 10(c) and s 21(3). It thereby breached the substantive limb of s 38(1). I do not accept this submission because, as explained previously, I have concluded that the Tribunal had jurisdiction to make the Treatment Orders. However, that is not the end of the matter, as the Order made must be established as complying with s 7(2).
I received very limited submissions about s 7(2) and its application in this proceeding and whether the limitations imposed by the Treatment Order were demonstrably justified. But I consider that the Tribunal’s reasons establish that the limitations imposed on JL’s human rights were demonstrably justified.
Because the treatment criteria were satisfied, the Tribunal was obliged to make a Treatment Order, but was given the power or discretion to decide whether the treatment should be in hospital or in the community and the duration of the Order. Because of that power, I do not consider that s 38(2) is applicable as it could not be said that the Tribunal could not reasonably have acted differently or made a different decision.[39] In exercising that power, it took into JL’s submissions. It addressed the substance of the factors described in s 7(2) of the Charter, although not referring to them directly. It decided that the treatment under the Order should be in hospital and should be for 26 weeks. It described why these measures were important and necessary, their nature and extent and the relationship between the limitations and their purpose. Finally the Tribunal concluded that the treatment could not be provided in the community. This in effect addressed the factor in s 7(2)(e) as to whether there was any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.
[39]Bare v IBAC (2015) 48 VR 129, 235-6[325-6] (Tate JA).
In Re Kracke and the Mental Health Review Board,[40] Bell J discussed the application of s 7(2)(e) of the Charter in relation to an involuntary treatment order made under the Mental Health Act 1986, when the review of the treatment orders required by the legislation had not occurred. It is worth repeating the following passages from that detailed decision because they deal with issues similar to those presented by this case, although under the previous version of the Act. Bell J stated:
[40][2009] 29 VAR 1.
Giving involuntary medical treatment to Mr Kracke engages his right to freedom from medical treatment without full, free and informed consent (s 10(c)), to freedom of movement (s 12), to privacy (s 13(a)) and to the various aspects of the right to liberty in (s 21(1), (2) and (3)).
These rights protect Mr Kracke's interest in his own personal autonomy and integrity. The rights respect his personal capacity to make decisions about his own medical treatment based on full, free and informed consent. In particular, the rights respect Mr Kracke's inherent human dignity which is a fundamental value of the Charter. The rights also protect his interest in his personal liberty and freedom of movement, which express the cardinal value of freedom and is indispensable for the development of the person.
The Mental Health Act limits these rights in various ways, but especially in the making of involuntary and community treatment orders. The purpose of these limitations is to give necessary medical treatment to mentally ill people who cannot or will not consent to it. This is a pressing and substantial social need.[41]
…
The limitations on a patient's human rights should, under the legislation, be inherently proportionate to their medical needs. When properly applied, patients are only given such medication, and only by such means, for which there is not a reasonably available and less restrictive or intrusive alternative. They will be treated in the community, rather than in detention, if that is possible. There should, therefore, be a proportionate relationship between the limitations and their purposes.
The Mental Health Act contains a number of important safeguards for preventing misuse of involuntary treatment powers, which can greatly interfere with human rights. The safeguards are intended to prevent any limitations from going beyond their necessary purpose. One safeguard is review of treatment orders by the board within specified times, which did not occur in Mr Kracke's case. Having regard to the other safeguards and checks and balances in the system, the failure of the review safeguard did not destroy the overall proportionate balance between the limitations and their purposes.[42]
…
The limitations on Mr Kracke's human rights imposed by the operation of the provisions of the Mental Health Act for making, maintaining and reviewing involuntary and community treatment orders are made under law, reasonable and demonstrably justified in a free and democratic society based on human dignity, equality and freedom. Therefore the provisions satisfy the general limitations provision in s 7(2) of the Charter. Unreviewed orders are not incompatible with human rights because the system contains a range of safeguards and checks and balances of which reviews, although of considerable importance, are only one part. Thus the proportionality of the limitations in treatment orders does not depend on board review alone.[43]
[41]Re Kracke, [775]–[777].
[42]ReKracke, [780]-[781].
[43]ReKracke, [784].
In my opinion, the limitations on JL’s human rights contained in s 10(c) and 21(3) imposed by the Treatment Order were made under law and were reasonably and demonstrably justified in a free and democratic society based on human dignity, equality and freedom and thereby satisfied the provisions of s 7(2) . Applying Bell J’s statement it can equally be said of the current Act that it:
contains a number of important safeguards for preventing misuse of involuntary treatment powers, which can greatly interfere with human rights. The safeguards are intended to prevent any limitations from going beyond their necessary purpose.[44]
[44]ReKracke, [780]-[781].
The second procedural limb of s 38(1)
JL also argued that the Tribunal breached his human rights by not giving them proper consideration in the making of the Treatment Order as the second limb of s 38(1) required and had made ‘only the most cursory reference to JL’s human rights’. The Secretary submitted that there was be no basis for such a finding.
In Castles v The Secretary, Department of Justice, Emerton J explained the operation of that part of s 38(1):[45]
The requirement in s 38(1) to give proper consideration to human rights must be read in the context of the Charter as a whole, and its purposes. The Charter is intended to apply to the plethora of decisions made by public authorities of all kinds. The consideration of human rights is intended to become part of decision-making processes at all levels of government. It is therefore intended to become a ‘common or garden’ activity for persons working in the public sector, both senior and junior. In these circumstances, proper consideration of human rights should not be a sophisticated legal exercise. Proper consideration need not involve formally identifying the ‘correct’ rights or explaining their content by reference to legal principles or jurisprudence. Rather, proper consideration will involve understanding in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision that is made. As part of the exercise of justification, proper consideration will involve balancing competing private and public interests. There is no formula for such an exercise, and it should not be scrutinised over-zealously by the courts.
While I accept that the requirement in s 38(1) to give proper consideration to a relevant human right requires a decision-maker to do more than merely invoke the Charter like a mantra, it will be sufficient in most circumstances that there is some evidence that shows the decision-maker seriously turned his or her mind to the possible impact of the decision on a person’s human rights and the implications thereof for the affected person, and that the countervailing interests or obligations were identified.
[45](2010) 28 VR 141, 184 [185]-[186].
I consider that the Tribunal’s reasons, read as a whole, establish that it gave proper consideration to JL’s human rights. The Tribunal took into account JL’s submissions and the information that he provided. Its reason are consistent with the approach that Emerton J considered was appropriate in that they show evidence that the Tribunal seriously turned its mind to the impact of the Treatment Order on JL’s relevant human rights and its implications for him and identified the countervailing interests or obligations This appears not just from the paragraphs of the reasons that mention JL’s human rights, but also from the reasoning about whether the treatment criteria applied and when considering whether the Treatment Order should be a Community or an Inpatient Order and its duration. On each of these questions, the Tribunal considered the need for, the effect of, and limitation imposed by a Treatment Order if it was made. By making those findings, the Tribunal did give appropriate consideration to JL’s human rights contained in s 10(c) and s 21(3).
Conclusion
Ground 6 is not established.
Overall conclusion
Grounds 1 has been established. I will rule on whether ground 5 has been established after receiving any further submissions about the significance of the fact that the delegate made the TTO.
I will make directions for the exchange of submissions about appropriate orders to give effect to this judgment and then list the proceeding again for any further submissions about final orders.
13
0