K v St Vincent's Hospital Sydney Limited (No. 2)

[2020] NSWSC 1097

Supreme Court

New South Wales

Medium Neutral Citation:	K v St Vincent’s Hospital Sydney Limited (No. 2) [2020] NSWSC 1097
Hearing dates:	14, 17 August 2020
Date of orders:	17 August 2020
Decision date:	17 August 2020
Jurisdiction:	Equity
Before:	Parker J
Decision:	See [35]
Catchwords:	MENTAL HEALTH – practice and procedure – appeals – appeal against Mental Health Review Tribunal decisions – interlocutory application to stay medication while plaintiff prepares for hearing
Legislation Cited:	Mental Health (Forensic Provisions) Act 1990 (NSW)
Category:	Procedural and other rulings
Parties:	K (Plaintiff) St Vincent’s Hospital Sydney Limited (First Defendant) NSW Mental Health Tribunal (Second Defendant)
Representation:	Advocates: K (in person) (Plaintiff) M Hamdan (counsel) (First Defendant) Solicitors: Holman Webb (First Defendant)
File Number(s):	2020/51667
Publication restriction:	Restriction on publication of the name of the plaintiff, pursuant to s 162 of the Mental Health Act 2007 (NSW).

Judgment – Ex tempore

Revised from transcript; issued 20 August 2020

1. Before the Court is an interlocutory application in proceedings on appeal from the Mental Health Review Tribunal. The decision under appeal was made on 19 September 2019. By that decision, the Tribunal made a Community Treatment Order (CTO) for the treatment of the plaintiff/appellant, K. The order covers a period of 12 months. For present purposes, the essential feature of the order is that it requires K to submit to monthly injections of an anti-psychotic drug known as “paliperidone” for treatment of a mental condition which the Tribunal was satisfied K suffers from.

2. In his application before me, K seeks an order which would result in the immediate suspension of his obligation under the CTO to submit to the paliperidone injections. K seeks this order so that he can proceed to conduct the appeal, in which he is self-represented, without being subject to the effects of that medication.

3. The background to the application is set out in an affidavit sworn by Dr Matthew Cullen, who is K's treating psychiatrist. K has been under Dr Cullen's care since 2006. Dr Cullen is a visiting medical officer at St Vincent's Hospital in Darlinghurst which is the first defendant and respondent to the appeal. Dr Cullen was a member of the Tribunal which made the CTO in question and it is safe to assume that the CTO reflects Dr Cullen's diagnosis of K and his views as to how K should be treated for the condition which Dr Cullen believes he has.

4. Dr Cullen is of the opinion that K suffers from a delusional disorder. The beliefs which underlie this diagnosis are described by Dr Cullen in his affidavit. They also appear from the written and oral submissions which K presented to the Court.

5. The story originates with a sexual relationship which K had with a woman, referred to in the evidence as “Ruth”, in the early 1990s. According to K, Ruth approached him with a view to forming a relationship. He was initially reluctant but eventually agreed to do so.

6. The relationship terminated long ago and K has never had any interest in any further relationship with Ruth since, but he feels very strongly that Ruth's behaviour towards him was manipulative and deceitful. He also feels an ongoing need to expose and condemn, among people in his community, what he sees as Ruth's misconduct towards him (K is Jewish, and I use the term “his community” to include members of his local synagogue, as well as other people in K’s life).

7. But there is more than that. K believes that in some way Ruth continued to orchestrate the humiliating situation in which K thought he found himself as a result of their relationship, and in which he continues to think he finds himself. K feels an ongoing obligation to obtain, from members of his community, repudiation and condemnation of Ruth's behaviour, as K describes it. He sees this as defending himself from her. K also sees any failure by others in his community to repudiate and condemn Ruth as an affront to himself and as misconduct on their part. He refers to this situation as “The Scenario”.

8. According to Dr Cullen, K first came under his care as a result of being brought to the Hospital from Waverley Local Court where K had been detained under the Mental Health (Forensic Provisions) Act 1990 (NSW). This occurred in July 2006 and followed an attempt by K to strangle a former friend of his. The occasion for the assault on the former friend was a refusal on the friend's part to admit that he was part of The Scenario. According to Dr Cullen, the assault was preceded by a period of several weeks of verbal and physical intimidation on K's part.

9. Following K's admission to the Hospital, he was institutionalised for a period of about six months. During that time he was treated with anti-psychotic medications. When he was released, he was required to submit to injections to control what Dr Cullen had diagnosed as his delusional disorder.

10. According to Dr Cullen, there was a period of time in about 2008 when attempts were made for K to take his medication in tablet form, but this was not successful because K did not, or at least did not regularly, take that medication.

11. In 2012, K was re-admitted to the Hospital as a consequence of homicidal thoughts and threats against another member of his community, a rabbi. In the course of argument before me, K gave some explanation of how this arose. It seems that it was triggered by an incident at a pub during which the rabbi called security guards who manhandled K. K's basic complaint is that the rabbi would not accept K’s description of Ruth’s conduct and denounce her for it.

12. According to Dr Cullen, K's re-admission followed a reduction in the dosage of the anti-psychotic medications which were being administered to him. When he was re-admitted the dosage was increased again and remains at that level.

13. According to Dr Cullen, before his treatment began in 2006 K was socially isolated and was working as a labourer. Dr Cullen's opinion is that the treatment with anti-psychotic medications in general, and with paliperidone in particular, has brought benefits to K. Dr Cullen identified three such benefits.

14. First, Dr Cullen contends that the medication has made it easier for K to socialise. In particular, Dr Cullen attributes to the treatment a reconciliation between K and his parents. Secondly, Dr Cullen says that in his view the medication has reduced K's thoughts of violence and the ongoing risk of outbreaks of violence as a result of K's beliefs about The Scenario. Thirdly, Dr Cullen attributes to the treatment an improvement in K's ability to study and to function. In particular, over the period of his treatment, K has undertaken undergraduate studies in law and philosophy. He has also obtained, or at least has been able to apply for, clerkships with law firms. K has not obtained admission as a practising lawyer but that is something which remains possible.

15. Dr Cullen acknowledges that K passionately dislikes being subjected to the medication. Dr Cullen also acknowledges that the medication has side effects. In particular, in K's case, it resulted in a weight gain. On balance, however, Dr Cullen believes that it is in K's interests and in the interests of the community generally for him to continue to be medicated.

16. For his part, K regards Dr Cullen's opinions as a load of patronising nonsense. He says that the medication had nothing to do with his reconciliation with his parents. K also told me that he had reconciled with the former friend whose assault had resulted in his commitment to Dr Cullen's care, and that this reconciliation, too, had nothing to do with the medication being administered to him.

17. Nor, according to K, was the reduction in the medication anything to do with the incident involving the rabbi. As K would have it, the existence of The Scenario is a suppressed form of violence against himself and other members of his community, and it is not surprising that that may spill over into incidents such as that with the rabbi. Nothing the medication can do will change that.

18. So far as his studies are concerned, K politely but firmly insisted that he had never had any interest in studying law. Whatever Dr Cullen may think, he himself does not feel any sense of satisfaction or achievement in having completed his studies in that area.

19. K also forcibly argued that the medication was no use. He pointed to the fact that he has now been compulsorily medicated for ten years and says that he now finds himself in a position where anything unsatisfactory in his circumstances is ascribed to his being "resistant to treatment".

20. K presented himself as being caught in a Kafkaesque situation where his doctors - primarily Dr Cullen - have invested their authority in the efficacy of the compulsory medication and are not prepared to accept the reality, as K sees it, that it is ineffective and even damaging.

21. Finally, and of most importance so far as this application is concerned, K asserts that the medication interferes with his cognitive processes. He says that continuing the medication until the appeal will prejudice his ability to argue it. Again, K presented his circumstances as involving a nightmare in which the compulsory medication makes it impossible for him to challenge the imposition of the medication in the first place.

22. For the purposes of the application before me, what I need to decide is whether K has in these interlocutory proceedings demonstrated a sufficient case for nullifying the requirement in the CTO for him to be compulsorily medicated.

23. Counsel for the Hospital characterised what K was seeking as being, in effect, a stay of the orders made by the Tribunal. K contested that characterisation. He pointed out that there is more to the CTO than merely the compulsory treatment order. But although the Tribunal made other orders, as a matter of substance I think that characterisation is correct.

24. The critical element of the Tribunal’s decision is the order requiring K to be compulsorily medicated. The effect of what K is seeking is to have that order stayed until after the appeal is determined. I would thus, in effect, be reversing the decision of the Tribunal until the appeal is determined. As counsel correctly submitted, the starting point in the exercise of appellate jurisdiction is that the decision under appeal is presumed to be correct, and good reason must be demonstrated to deprive that decision of effect until the appeal is heard.

25. In an application of the present type, this Court cannot determine where the truth lies between the rival contentions of Dr Cullen and K. That will be a matter to be determined at the appeal.

26. Counsel for the Hospital submitted that K had failed to articulate plausible grounds for overturning the Tribunal’s decision. Counsel submitted that it was necessary for the purpose of this application to form a preliminary view on the strength of the appeal and submitted that that preliminary view should be adverse.

27. One difficulty I see with this submission is that, unlike an ordinary appeal, the appeal in these proceedings will result in a hearing de novo. It will not be necessary for K to demonstrate error by the Tribunal, based on the material before it. The proceedings are in the nature of a review. The Court will need to have regard to all of the evidence that is presented to it, and will need to make up its mind for itself.

28. Accordingly, I do not think it is necessary to form any preliminary view on the strength or otherwise of K's appeal and I do not do so. In my view, the resolution of this application comes down to the limited question of balancing the harm or potential harm to the community if K's compulsory medication is stayed against the harm or potential harm to K if it is continued.

29. The Hospital's evidence on this balance is clear. It relies on medical opinion that the continuation of K's compulsory medication is desirable because it reduces the risk of K forming and acting on homicidal or other violent thoughts. For this purpose, I put to one side Dr Cullen's belief that the medication is in K's own interests. I do not think that on an application such as this, that opinion, which, as I have already indicated, K characterises as a patronising one, can have any weight.

30. But I do note that K has not challenged, and presumably cannot challenge, Dr Cullen's recitation of the facts so far as the events surrounding his institutionalisation in 2006 and 2007 and further admission in 2012 and 2013 are concerned. I acknowledge that K does not accept that those incidents are attributable to a lack of medication but Dr Cullen's opinion is that they were and that is not an issue which can be resolved in this application. It is a matter for the hearing. I also take into account that in the course of his argument I got the impression that one of the reasons why K resents his compulsory medication is that he believes that medication prevents him or may inhibit him in reacting to The Scenario as he conceives he should.

31. I turn now to the effect of the medication on K. I feel the force of his contention. In cases such as this, it is impossible to exaggerate the importance of securing patient autonomy. But the fact is that there is no medical evidence to support K's assertion that the medication will prevent him from properly representing himself in the appeal. At the hearing of the appeal itself, that issue will no doubt be a central one and will require anxious consideration from the Court but at the moment all I have is a contested assertion.

32. I should say that in the conduct of the application I found K to be courteous and lucid. He is obviously a man of intellectual ability. I do not detect anything from the way he presented the application which would lead me to believe that he was labouring under cognitive difficulties which would make it impossible for him to conduct litigation.

33. I also think it is significant that K has been on anti-psychotic medication for more than ten years. In an application for an injunction or a stay, maintenance of the status quo can be a very important consideration. In the present case, the status quo is that K has been compulsory medicated and has been so medicated for a long period of time.

34. In my opinion it would not be proper for me to disturb that longstanding arrangement merely upon the say-so of K, and where the Hospital does not have the ability through the usual evidentiary processes to test K's assertions on a factual level. It seems to me that I have no alternative but to leave the current treatment plan in place until its efficacy can be fully and properly explored on the hearing of the appeal. For these reasons K's application by way of notice of motion fails and must be dismissed.

35. The orders of the Court are:

1. The plaintiff’s notice of motion filed 12 May 2020 is dismissed.

2. I order the plaintiff pay the defendant’s costs of the plaintiff’s motion filed 12 May 2020.

3. The proceedings are adjourned for further directions before the Registrar 20 August 2020.

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Decision last updated: 20 August 2020