JV and MENTAL HEALTH REVIEW BOARD
[2007] WASAT 258
•11 OCTOBER 2007
| JURISDICTION | : | STATE ADMINISTRATIVE TRIBUNAL |
| STREAM | : HUMAN RIGHTS | ||
| ACT |
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| CITATION |
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| MEMBER |
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| HEARD |
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| DELIVERED |
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| FILE NO/S |
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BETWEEN | : JV Applicant |
AND
MENTAL HEALTH REVIEW BOARD
Respondent
Catchwords:
Involuntary patient detained in authorised hospital - Decision of the Mental Health Review Board to continue involuntary status - Review of that decision - Tribunal satisfied that criteria for involuntary treatment met - Decision affirmed
Legislation:
Guardianship and Administration Act 1990 (WA)
Mental Health Act 1996 (WA), s 4, s 26, s 65, s 66, s 109, s 125, s 148A(1)
[2007] WASAT 258
State Administrative Tribunal Act 2004 (WA), s 29
Result:
Decision under review affirmed
Category: B
Representation:
Counsel:
| Applicant | : | Self-represented |
| Respondent | : | No appearance |
Solicitors:
| Applicant | : | Self-represented |
| Respondent | : | No appearance |
Case(s) referred to in decision(s):
LM and Mental Health Review Board [2006] WASAT 123
MM v Mental Health Review Board (Unreported; Supreme Court; Library No
990093; 4 March 1999)
[2007] WASAT 258
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
1 The State Administrative Tribunal on review of an application by a
patient detained for involuntary treatment dismissed his application to overturn a decision of the Mental Health Review Board that his involuntary status be continued.
2 The Tribunal found that the patient met the criteria in s 26 of the
Mental Health Act 1996 (WA) for the continuation of his detention and involuntary treatment.
3 The patient had a diagnosed mental illness and this, combined with
his other disabilities and a lack of alternative appropriate accommodation for the supervision of his medication and his care in the community, meant that he required continuing treatment and care in an authorised hospital.
Application for review
4 The application by JV (applicant) is for review of a decision by the
Mental Health Review Board (Board) on 12 July 2007 that he should continue to be an involuntary patient under the Mental Health Act 1996 (WA) (MH Act).
5 The Board is created under s 125 of the MH Act and one of its
functions is the review of the status of involuntary patients. Pursuant to s 109 of the MH Act a patient who is an involuntary patient may be treated without the patient's consent. Involuntary treatment may be given either in an authorised hospital or in the community through a Community Treatment Order (CTO).
The application for review to the Tribunal comes by way of s 148A(1) of the MH Act which provides:
"A person in respect of whom the Board makes a decision or order who is dissatisfied with the decision or order may, without payment of any fee, apply to the State Administrative Tribunal for a review of the decision or order."
The powers of the Tribunal on review of a decision are set out in s 29 of the State Administrative Tribunal Act 2004 (SAT Act). In essence, the Tribunal steps into the shoes of the primary decision-maker and must ask the same questions in relation to the applicant's status under the MH Act
[2007] WASAT 258
at the time of the review; whether the provisions of the MH Act for involuntary treatment of the applicant are met in the circumstances of the applicant (see generally LM and Mental Health Review Board [2006] WASAT 123).
8 The decision of the Board under review by the Tribunal is that the
applicant is to continue to be subject to an involuntary patient order made on 12 April 2007 following an examination of the applicant by a psychiatrist on 7 May 2007. The order provides for his continued detention for involuntary treatment at Graylands Hospital and that the date of detention ceases on 6 November 2007.
Background
9 The applicant is a 36-year-old man who is currently an involuntary
patient at Graylands Hospital. He has been in hospital since December 2005 following the revocation of a CTO made on 17 August 2005. At the time of the revocation of the CTO, he was living in an independent Homeswest accommodation which had been purpose-designed for his physical disabilities, having moved there in 2002.
10 The Tribunal heard that in 1995, the applicant suffered a motorbike
accident in which he sustained severe brain damage which required a prolonged period of hospitalisation and rehabilitation resulting in residual physical disabilities and cognitive impairments. The Tribunal was told that prior to his injuries in 1995, the applicant had some contact with psychiatric services and had been diagnosed with either a personality disorder or simple schizophrenia. According to the materials before the Tribunal, the Public Advocate was appointed his limited guardian under the Guardianship and Administration Act 1990 (WA) in 2005 with functions to determine where he should live, with whom he should live and to determine the services to which he should have access.
11 The revocation of the CTO in 2005 was, according to the reports
provided to the Tribunal, based on deterioration in the applicant's self-care and the concern on the part of the mental health team from which the CTO was supervised that he could no longer manage living in the community. The applicant was not displaying psychotic symptoms at that time. According to the files, some months following his admission to hospital his appointed guardian agreed to the termination of his lease on the Homeswest unit as it was considered that he could no longer live independently and required some form of supported or supervised accommodation on his discharge from hospital.
[2007] WASAT 258
The applicant's involuntary status was revoked on 2 January 2006 and he was made a voluntary patient, but remained in hospital. A further involuntary order was made in April 2006 when he tried to discharge himself from hospital and since then orders have been made continuing his involuntary status. The order, dated 7 May 2007, notes that on examination on that date there was:
"No significant change in mental state or accommodation situation. Requires further stay in hospital as an involuntary patient to provide required care and treatment."
Legislation
13 The statutory framework for involuntary treatment of a patient under
the MH Act is set out in s 26 of that Act. Before a patient can be made subject to an involuntary treatment order, all the requirements in s 26(1) must be satisfied.
"26. Persons who should be involuntary patients
(1) A person should be an involuntary patient only if -
(a)
the person has a mental illness requiring treatment;
(b)
the treatment can be provided through detention in an authorised hospital or through a community treatment order and is required to be so provided in order -
(i)
to protect the health or safety of that person or any other person;
(ii)
to protect the person from self-inflicted harm of a kind described in subsection (2); or
(iii)
to prevent the person doing serious damage to any property;
(c)
the person has refused or, due to the nature of the mental illness, is unable to consent to the treatment; and
(d)
the treatment cannot be adequately provided in a way that would involve less
[2007] WASAT 258
restriction of the freedom of choice and movement of the person than would result from the person being an involuntary patient.
(2) The kinds of self-inflicted harm from which a person may be protected by making the person an involuntary patient are -
(a) serious financial harm; (b) lasting or irreparable harm to any important personal relationship resulting from damage to the reputation of the person among those with whom the person has such relationships; and (c) serious damage to the reputation of the person."
14 For the purposes of the MH Act, "mental illness" has the meaning
given by s 4. That section provides that a person has a mental illness if he or she "suffers from a disturbance of thought, mood, volition, perception, orientation or memory that impairs judgment or behaviour to a significant extent".
15 When a patient meets the criteria for involuntary treatment, s 65 and
s 66 are relevant in that they provide that consideration must be given to a
CTO before the patient is detained in hospital."65. No detention without consideration of community
treatment
A psychiatrist is not to make an order that a person be, or continue to be, detained as an involuntary patient without having considered whether the objects of this Act would be better achieved by making a community treatment order in respect of the person.
66. When a community treatment order may be made
(1)
A psychiatrist is not to make a community treatment order in respect of a person unless satisfied that -
[2007] WASAT 258
(a)
treatment in the community would not be inconsistent with the objectives set out in section 26(1)(b);
(b)
suitable arrangements can be made for the care of the patient in the community;
(c)
a medical practitioner or mental health practitioner who is suitably qualified and willing to do so will be available to ensure that the patient receives the treatment outlined in the order; and
(d)
a psychiatrist who is willing to do so will be available to supervise the carrying out of the order."
Evidence before the Tribunal
16 The Tribunal has before it the application and a medical report from
Royal Perth Rehabilitation Hospital, dated 31 January 1997, filed by the applicant; the reasons of the Board for the most recent and previous reviews; the Graylands Hospital medical record which includes copies of orders made, integrated progress notes, correspondence, social work and psychiatric reports provided to the Board and a further report from Dr RI (consultant psychiatrist), dated 10 August 2007, prepared for the Tribunal's review. The Tribunal also heard oral evidence from the applicant in person and a medical officer from Graylands, Dr T, by video conference.
The following is the evidence before the Tribunal by reference to the statutory criteria for involuntary treatment.
Section 26(1)(a) - mental illness requiring treatment
In respect of the application of s 26, the first question is the issue of whether the applicant has a mental illness requiring treatment.
19 The applicant asserts that he does not have a mental illness. He
concedes that he has "a psychological problem" but he does not accept that he needs treatment for it. He states that he has suffered brain damage and that this is "beyond a psychiatrist" to treat. He states that he is treated with medication for pain and is not on any medication other than for management of pain and should not continue to be an involuntary patient.
[2007] WASAT 258
He concedes that he does receive an injection approximately once per fortnight.
20 Dr T's evidence is that the applicant has a diagnosis of mental illness
which was made prior to his accident but that his condition deteriorated following the accident. He states the applicant has delusions of a persecutory or erotomanic nature and that he becomes agitated and aggressive without treatment. He states that the applicant has been an in-patient at the hospital for over two years and that he is receiving an antipsychotic medication Respiridone Consta, which is a depo medication which is delivered by injection every two weeks. He states that the applicant is also given oral medications prn (as needed). This evidence confirms an earlier report provided by Dr RI which states that the applicant has had variable diagnoses of schizophrenia, or psychosis not otherwise specified and drug induced psychosis but that his current diagnosis is organic psychosis with ongoing fixed delusions with erotomanic content. The report notes that neuropsychological testing confirmed significant cognitive impairments. It states that he is at risk of choking while eating and cannot negotiate steps on uneven surfaces, that he is unlikely to be able to live in any unsupervised accommodations, and that he lacks insight into his disabilities. The report refers to the delusional beliefs of the applicant; "he believed that his previous psychiatrist was proposing to him, and had made sexual advances to him, and is going to accommodate him at her place".
21 In the course of the hearing, the applicant reports that his former
psychiatrist had breached medical ethics by proposing a relationship with him and that more recently he was moved from one ward to another within Graylands because of "ethics" due to an improper gesture to a staff member to whom he had proposed marriage. He advises that she had telephoned the ward's night staff asking that "he be sent her way". He had later run into her at the Fremantle Train Station and had been speaking to her about taking him home after her shift. He proposes that he be discharged to her care.
22 Although it appears that the formal diagnosis of the applicant has
changed over a period of years, the Tribunal is satisfied that he does suffer from a mental illness within the meaning of the MH Act, in that he suffers a disturbance of thought, perception and memory that impairs his judgment and behaviour to a significant extent.
23 The Tribunal considers the impairment of judgment and behaviour
evident in the reported behaviour of the applicant is significant. We
[2007] WASAT 258
accept and rely on the medical and other reports provided to the Tribunal in making the finding that the applicant suffers a mental illness which impairs his judgment and behaviour to a significant extent and that he requires treatment.
24 Scott J in MM v Mental Health Review Board (Unreported; Supreme Court; Library No 990093; 4 March 1999) held that the word "treatment" in the context of the MH Act should be interpreted widely and may include "supervision and a safe environment in which to live."
We conclude that s 26(1)(a) of the MH Act is satisfied in respect of
the applicant.
Section 26(1)(b) - risks
26 The next element to fulfil statutory criteria to authorise involuntary
treatment is found in s 26(1)(b) which requires that treatment is necessary to avoid risks. The risks identified by Dr T in relation to the need for treatment is that the applicant is unable to live independently but has no insight into this and thereby endangers his own life and safety. The disorder the applicant suffers is also said to expose him to risk of harm to himself and to his reputation. The further risk is the risk of deterioration in his mental state without involuntary treatment. The applicant is reported to become increasingly agitated and aggressive, and a deterioration in his mental state is noted if he refuses his medication.
The Tribunal accepts that there is a need for treatment to avoid deterioration in the applicant's mental state and mental health.
Section 26(1)(c) - inability to consent to authorise involuntary treatment
28 The applicant states that he does not accept the need for treatment as
he does not believe he has a mental illness. He states that he has a hyper-sensitivity to all medications due to his brain damage. He states that he does require medication for pain relief but denies he is receiving antipsychotic treatment, although conceding that he does receive an injection approximately each fortnight. He believes he should not be in hospital because he should not be treated with psychiatric drugs for his psychological problem. He states that the inability to confirm the diagnosis means that he does not have a mental illness and that he has refused treatment because of this. He refers to intelligence tests undertaken in 2002 at Curtin University and the recent revocation of a guardianship order to support his contentions. He states the depo injections are not required for psychological problems.
[2007] WASAT 258
29 The applicant denies he is receiving psychiatric treatment or that he
requires such treatment. It is apparent that if he is not the subject of an involuntary order, he will not submit himself for treatment. That situation amounts to a refusal of treatment for the purposes of s 26(1)(c).
Section 26(1)(d) – less restrictive means for the provision of treatment
30 Dr T submits that the applicant could be treated in a less secure
environment if one were available for him. The service he requires is appropriate supervision of his care and of the provision of his medication. Unfortunately the applicant does not want to live in supervised accommodation but is considered unsafe to live independently. Dr T's evidence is that since 2005, attempts had been made to find alternative accommodation which provides a supervised setting but the hospital staff had been unable to achieve this because of a lack of availability and unwillingness by accommodation providers to accept the applicant. This view is supported by the written opinion of the consultant psychiatrist that the applicant has been "banned from all the supported accommodations/[h]ostels in and around Perth due to his challenging behaviour". The applicant disputes that this is the case. The Tribunal accepts that the only way treatment and the care the applicant needs can be given is in hospital, as there are no alternatives currently for his care and the supervision of his medication. There is no means by which the applicant's involuntary treatment can be achieved other than by detention in an authorised hospital. It seems that his treatment could be supervised in the community (on a CTO) if the appropriate support and accommodation services were available but that at present no suitable arrangements can be made to enable this to occur. The Tribunal accepts that s 26(1)(d) is satisfied and that a community treatment order has been considered pursuant to s 65 and s 66 of the MH Act, but is not available.
Conclusion
31 For these reasons, the Tribunal affirms the decision to continue the
involuntary status of the applicant and his treatment in hospital. The evidence of Dr T, that it would be possible to discharge the applicant from hospital if there were suitable options for his accommodation and treatment in the community, is of considerable concern to the Tribunal and all those involved in the care of the applicant. It appears that the applicant remains a long-term patient in Graylands Hospital because of a lack of alternatives for his care in the community. The Tribunal urges all those involved in the care of the applicant to explore possible alternatives to his hospitalisation, including the exploration of his proposed move to live in the community.
[2007] WASAT 258
Order
The application is dismissed.
I certify that this and the preceding [31] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J CHANEY, DEPUTY PRESIDENT
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