JL v Mental Health Tribunal (No 2)
[2022] VSC 222
•6 May 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2021 00498
| JL | Plaintiff |
| v | |
| MENTAL HEALTH TRIBUNAL | First Defendant |
| -and- | |
| DR RICHARD YEATMAN (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: | 27 April 2022 |
DATE OF JUDGMENT: | 6 May 2022 |
CASE MAY BE CITED AS: | JL v Mental Health Tribunal (No 2) |
MEDIUM NEUTRAL CITATION: | [2022] VSC 222 |
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JUDICIAL REVIEW – Mental health – Delegation – Invalid Temporary Treatment Order made by delegate of authorised psychiatrist – Invalid action of delegate – Delegate not a party to the proceeding – Whether invalid action of delegate to be taken as that of the delegator – Appropriate relief – Appropriate form of declaration – Interpretation of Legislation Act 1984 s 42A; Charter of Human Rights and Responsibilities Act 2006 ss 4(1)(b), 10(c), 21(1), (2), (3); Mental Health Act 2014 ss 45, 46, 48, 49, 50.
STATUTES – Whether delegate’s invalid action to be taken as delegator’s action – Interpretation of Legislation Act 1984 s 42A(1)(c).
PARTIES – Person wrongly named as delegator and second defendant – Substitution of the correct delegator – Supreme Court (General Civil Procedure) Rules 2015 r 36.01.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms G Cafarella | Victoria Legal Aid |
| For the Secretary to the Department of Health as amicus curiae | Mr J Tito | Department of Health Lawyers |
| For the Second Defendant | Mr P Cadman | DTCH Lawyers |
HIS HONOUR:
After I delivered judgment in this proceeding,[1] the solicitors for the second defendant advised the Court that the person named as the second defendant was not the relevant authorised psychiatrist at the time the Temporary Treatment Order (‘TTO’) was made by his delegate. The doctor who was the authorised psychiatrist at that time made an affidavit confirming that fact. As a result, on 27 April 2022 I made orders under r 36.01 of the Supreme Court (General Civil Procedure) Rules 2015 substituting him as the second defendant.[2]
[1]JL v Mental Health Tribunal [2021] VSC 868.
[2]See Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231, 260-1.
The doctor in his affidavit stated that on 13 September 2013, he had been appointed as an authorised psychiatrist under the Mental Health Act 2014 (‘Mental Health Act’) by Melbourne Health. By letter of 3 September 2018 he had delegated his powers, duties and functions under that Act to the delegate who made the TTO. The letter of delegation stated:
Delegation by the Authorised Psychiatrist of Inner West Area Mental Health Service – The RMH, NorthWestern Mental Health, Melbourne Health
As the Authorised Psychiatrist of The Inner West Area Mental Health Service –The RMH I hereby delegate to you any power, duty or function, other than the power of delegation, as required under s 151(1) of the Mental Health Act 2014, effective from 3 September 2018.
In his affidavit, the doctor, the second defendant, stated that in addition to her work at the Inner West Area Mental Health Service, the delegate also undertook duties at North West Area Mental Health Services, which is another of the area mental health services provided by Melbourne Health. The events the subject of this proceeding took place at that latter mental health service in August 2020, when the delegate held a delegation from him to exercise the powers of an authorised psychiatrist of Melbourne Health under the Mental Health Act.
In my first judgment, I decided that the plaintiff had established the first ground of his amended originating motion. That ground was that the TTO failed to comply with the mandatory requirement for its making. I also decided that JL had not established grounds 2, 3, 4 and 6.
Ground 5 raised separate issues that required further consideration. It contended that in making the TTO, the second defendant, who was the authorised psychiatrist, acted unlawfully under s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (the ‘Charter’). I said that I would rule on whether ground 5 had been established after receiving any further submissions about the significance of the fact that a delegate of the second defendant had made the TTO.
In relevant parts of the judgment I said:[3]
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).
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.
[3]JL v Mental Health Tribunal [2021] VSC 868, [88]-[91].
Having received written and oral submissions about these issues, I must decide whether ground 5 has been established and, if it has, the appropriate orders to make. JL sought the following orders:
In relation to the Temporary Treatment Order purportedly made by the second defendant on 18 August 2020 and purportedly corrected on 14 September 2020:
(a)a declaration that the Temporary Treatment Order is, and at all material times was, invalid; and
(b)a declaration that the Second Defendant acted unlawfully pursuant to s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic).
Section 42A of the Interpretation of Legislation Act 1984 (‘Interpretation of Legislation Act’), dealing with delegation of statutory authority, in relevant parts, states:
Construction of power to delegate
(1)If an Act or subordinate instrument confers on a person or body a power to delegate the discharge, exercise or performance of a responsibility, power, authority, duty or function under that or any other Act or subordinate instrument, then, unless the contrary intention appears—
(a) …
(b) …
(c)a responsibility, power, authority, duty or function so delegated, when discharged, exercised or performed by the delegate, shall, for the purposes of the Act or subordinate instrument, be taken to have been discharged, exercised or performed by the person or body.
The effect of s 42A in this case is that, although the TTO was signed by the delegate, that act being, the exercise or performance of a power, duty or function is to be taken to have been exercised or performed by the delegator. It is common practice for a delegator to be sued rather than the delegate, when the delegate’s actions are challenged.[4] The delegator acts as the contradictor. In those circumstances, the Court can make orders against the delegator on the basis that his or her exercise or performance of a power, duty or function is taken to have been exercised or performed by him or her. That frequently occurs in proceedings to which the delegate is not a party. In those cases, if a declaration is made that the delegate’s action, taken as the delegate, the delegate is not considered to have been denied natural justice.
[4]Giddings v Australian Information Commissioner (2017) 156 ALD 601; [2017] FCA 677; Russell v Abbey [2018] VSC 259.
Section 151(1) of the Mental Health Act permits an authorised psychiatrist, by a written instrument, to delegate to a psychiatrist any of the authorised psychiatrist’s powers, duties or functions, other than the power of delegation. I have previously set out the terms of the delegation by the second defendant. The invalid TTO affecting JL was signed by a delegate of the authorised psychiatrist. Under her signature were the words of the form ‘signature of authorised psychiatrist or delegate’. No contrary intention displaces the operation of s 42A of the Interpretation of Legislation Act in interpreting s 151(1). So, the delegate’s exercise or performance of the power, duty or function to make the TTO is be taken to have been the delegator’s, the authorised psychiatrist’s exercise or performance of the power, duty or function to make the TTO.
On the evidence before me, the signing of the invalid TTO was the act or decision that was incompatible with JL’s human rights and unlawful under s 38(1) of the Charter. That action was carried out by the delegate, but because of s 42A of the Interpretation of Legislation Act, it is taken to have been the action of the authorised psychiatrist. As Nettle and Edelman JJ accepted in Northern Land Council v Quall,[5] whereas at common law a delegate would exercise the delegated power personally and in their own name, provisions such as s 42A ameliorate the consequences of that conclusion by deeming or, in the case of the Victorian Act, taking the exercise or performance of statutory power to be that of the delegator. The delegate of the power is not a necessary party to the proceedings.[6]
[5](2020) 383 ALR 378, 400 [85].
[6]Giddings Australian Information Commissioner (2017) 156 ALD 601, [5]-[7]; [2017] FCA 677; Russell v Abbey [2018] VSC 259, [34].
I have no evidence as to the identity of the persons who detained JL compulsorily after the TTO was made, but the making of an invalid TTO was itself an action incompatible with JL’s human rights. Accordingly, I find that JL has established ground 5 of his Amended Originating Motion as well as ground 1. I therefore next consider the appropriate orders to make.
JL submitted that the Court’s orders should give effect to the findings that the delegate of the authorised psychiatrist when making a TTO was a public authority and limited JL’s human rights because the TTO did not comply with the mandatory requirements and was therefore unlawful. He argued that a public authority that delegates statutory powers, which are exercised unlawfully, should not be shielded from declaratory relief. It matters not that someone else, probably nurses, effected JL’s detention and performed the compulsory treatment.
I should state, although in view of my conclusions it may not be strictly necessary to do so, that in my opinion the delegate was also acting as a public authority when she signed the TTO as she was an ‘entity established by a statutory provision that has functions of a public nature’ within the meaning of s 4(1)(b) of the Charter.
The Secretary, the amicus curiae, in written submissions submitted that there were barriers to the making of a declaration including that the delegate, who was not a party, had not been afforded natural justice and that the authorised psychiatrist’s interests did not necessarily align with the delegate’s. A declaration must relate to a determination of the real question and reflect the facts as found. Courts will refuse to make a declaration inconsistent with a status or right which might be asserted by someone who is not a party to the proceeding. Accordingly, a declaration generally should not be made unless all persons interested in the declaration are made parties to the declaration. A declaration referring to the authorised psychiatrist as having acted unlawfully would not reflect the facts found.[7]
[7]Written submissions dated 31 January 2022.
The second defendant supported the Secretary’s submissions and contended that any declaration should only state that the decision to make the Temporary Treatment Order of 18 August 2020 was of no force or effect and contrary to s 38(1) of the Charter. Such a declaration would be similar in form to the declaration made in Bare v The Independent Broad-based Anti-corruption Commission.[8] The second defendant submitted that his only relevant personal act was to delegate his authority and the validity of the delegation had not been challenged. A finding or declaration that he acted unlawfully would not restrain any conduct or offer guidance to future decision-makers. The findings and evidence were insufficient to determine the cause of the delegate’s failure on 18 August 2020 to complete the mandatory requirements of s 49. Any declaration that contained the specifics of the conduct to which it was directed would have to name the delegate who was not a party to the proceeding. The declaration had to describe the specific act and identify the actor.[9]
[8](2015) 48 VR 129, 237 [329] and 279 [461].
[9]Second defendant’s written submissions.
The other authority of present relevance is Certain Children v Minister for Families and Children (No 2)[10] in which John Dixon J made declaratory orders that decisions made by the Acting Director, Secure Services, as delegate of the Secretary[11] causing the removal of two child detainees from Parkville to the Grevillea Precinct were unlawful under 38(1) of the Charter.[12] The delegate was not a party to that proceeding.[13]
[10](2017) 52 VR 441 (‘Certain Children’).
[11]The declaration contained the name of the delegate.
[12](2017) 52 VR 441, 608 [588].
[13]Ibid 446 [3].
The Secretary and the second defendant argued that because the delegate was not a party to this proceeding, she would be denied natural justice if a declaration in the form of the Certain Children declaration was made. They submitted that any declaration must contain a sufficient degree of detail and precision as to the conduct that breached the Charter, bearing in mind that s 38(1) only applies when an public authority acts in a way that is incompatible with a human right, or in making a decision, fails to give proper consideration to a relevant human right.
I consider that a declaration somewhat similar to that sought by the plaintiff is appropriate. The declaration I will make seeks to specify that the action or decision that was unlawful under s 38(1) of the Charter was the making and signing of the TTO. The Court has a discretion whether to make a declaration, but I consider that I should, as it is an appropriate remedy when a breach of significant legislation is established and when action incompatible with a person’s human rights has occurred.[14] I therefore declare:
[14]Bare v Independent Broad-based Anti-corruption Commission (2015) 48 VR 129, 180 [152], 255 [388], 330 [624]; Loielo v Giles (2020) 63 VR 1, 70-1 [267].
That the Temporary Treatment Order dated 18 August 2020 made by the delegate of the second defendant, the authorised psychiatrist, was invalid and of no force or effect and unlawful under s 38(1) of the Charter of Human Rights and Responsibilities Act 2006.
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