Kola v Department for Health and Ageing

[2015] SASCFC 60

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal)

KOLA v DEPARTMENT FOR HEALTH AND AGEING

[2015] SASCFC 60

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Blue)

28 April 2015

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - ERROR OF LAW

MENTAL HEALTH - CONFINEMENT AND RESTRAINT OF MENTALLY ILL PERSONS AND SIMILAR ORDERS - GENERALLY

Application for permission to appeal against dismissal by the District Court of an appeal against a Guardianship Board community treatment order.

The Guardianship Board made an order that the applicant be subject to a level 2 community treatment order after hearing evidence from two psychiatrists and a mental health nurse. The applicant appealed to the Administrative and Disciplinary Division of the District Court on merits grounds and on the ground that he was denied procedural fairness.  The appeal was dismissed.

The applicant now seeks permission to appeal to the Full Court on essentially the same grounds.

Held by the Court dismissing the application for permission:

1.       There is no merit in the applicant’s contention that he was denied procedural fairness before the Board (at [9]-[10]).

2. There is no basis for the applicant’s contention that the Board did not have adequate regard to the objects and guiding principles in the Guardianship and Administration Act 1993 (at [11]).

3.       The applicant’s proposed grounds of appeal otherwise involve questions of fact which are not attended by any obvious error or patent improbability (at [14]).

4.       Application for permission to appeal dismissed (at [15]).

Guardianship and Administration Act 1993 (SA) s 7, s 66, s 67, referred to.

KOLA v DEPARTMENT FOR HEALTH AND AGEING
[2015] SASCFC 60

Full Court:  Kourakis CJ, Vanstone and Blue JJ

THE COURT:           On 31 July 2014, the Guardianship Board (the Board) ordered pursuant to the Guardianship and Administration Act 1993 (SA) that Mr Kola be subject to a level 2 community treatment order until 30 July 2015. It did so after hearing evidence from two psychiatrists and a mental health nurse and hearing Mr Kola.

1. Mr Kola appealed against that decision to the Administration and Disciplinary Division of the District Court of South Australia (the ADD).  On 2 February 2015, the ADD dismissed the appeal.  The ADD found that the evidence before the Board clearly established that the applicant had been correctly diagnosed with a delusional disorder in 2002 and later with paranoid schizophrenia in 2008.  That latter diagnosis has been consistently confirmed by a number of psychiatrists over many years.

2. The ADD also found that there was adequate evidence before the Board that Mr Kola required treatment to protect himself from harm or to protect others from harm.  There was evidence that Mr Kola had been verbally aggressive to staff members including his treating psychiatrist and mental health nurses.

3. Mr Kola did not adduce any evidence that he was not suffering from schizophrenia or that he did not pose any risk of harm.

4. The Board is constituted by a President, Deputy Presidents and panel members.  A person is not eligible for appointment as the President or Deputy President of the Board unless he or she is a Magistrate or a legal practitioner of not less than five years standing or a person who has retired from a judicial or magisterial office.[1]  Panels are constituted by the Governor and consist of persons with expertise in representing or promoting the interests of mentally incapacitated persons or with expertise in such other fields as the Governor thinks relevant.  

   [1]   Guardianship and Administration Act 1993 (SA) s 7.

5. An applicant in proceedings before the Board, or the person to whom those proceedings relate, was entitled with the permission of the Board or the ADD to appeal to the ADD against the decision, direction or order of the Board.[2]  In exercising its jurisdiction under the Guardianship and Administration Act 1993 (SA), the ADD sat with assessors selected from a panel of persons being persons whose expertise is, in the opinion of the Governor, appropriate to the jurisdiction of the ADD under the Act.[3]

   [2]    Guardianship and Administration Act 1993 (SA) s 67. The Act was amended with effect from 29 March 2015 to substitute a system for reviews by and appeals to the South Australian Civil and Administrative Tribunal.

   [3]    Guardianship and Administration Act 1993 (SA) s 66.

6. The proposed grounds of appeal are:

   3.     Grounds of Appeal

   3.1     The ADD erred by affirming Level 2 Community Treatment Orders made on 31 July 2014 by the Guardianship Board.

   3.2     The ADD erred in finding no cogent reason to depart from the Community Treatment Orders aforesaid.

   3.3     The ADD erred by not taking into account the extent to which the appellant contested that he had a mental illness.

   3.4     The ADD erred by not taking into account that the appellant contested whether there was a basis to the view that he was suffering from a mental illness and was relevantly a risk to himself and others.

   3.5     The ADD erred by not taking into account that the appellant was not given a proper opportunity to be heard in respect of whether he had a mental illness, whether there was a basis for same, and whether he was a risk to himself or others.

   3.6     The ADD erred by not taking into account that the Guardianship Board did not have adequate regard to the objects and guiding principles of the Mental Health Act, 2009.

7. The applicant's grounds for the grant of permission are:

   4.Permission to appeal is sought pursuant to Section 70 of the Guardianship and Administration Act, 1993.

   4.1     The appellant says that there has been a miscarriage of justice in respect of his freedom, rights, dignity and self respect.

   4.2     The appellant was not provided with a proper opportunity to be heard in breach of the principles of natural justice.

   4.3     Further authority and guidance in relation to what constitutes cogent reasons to depart from a decision of the Guardianship Board is warranted.

8. In his written submissions, Mr Kola submits that the ADD “does not appear to have properly considered whether there were cogent reasons to depart from the decision of the Board” and that the decision by the ADD to dismiss his appeal “worked an injustice in the particular case”.

9. The claim made in [3.5] and [4.2] that Mr Kola was denied procedural fairness is founded on an alleged failure to give him particulars of the grounds on which the orders were sought.  However, Mr Kola was provided with all of the evidential material on which the Board relied.  The ADD rejected this ground because:

   The Board made it clear to Mr Kola at the outset that it was a tribunal not a court and that it was not bound by the rules of evidence; that Mr Kola had a right to have legal representation or an advocate and the right to ask for an adjournment if he wished to do so.  Mr Kola chose not to avail himself of those rights.  The Board explained the effect of a community treatment order and the criteria of which the Board had to be satisfied before making such an order.  Mr Kola was given plenty of opportunity to express his opinion in relation  to the criteria which the Board had to consider.  The Board considered his submission before making its decision.  In our opinion Mr Kola was not denied procedural fairness.

10. There is no merit in this ground.  Permission to appeal on this ground should be refused.

11. Ground [3.6] complains that the ADD did not find that the Board did not have adequate regard to the objects and guiding principles in the Act (ss 6 and 7).  No basis has been established by Mr Kola for this contention about the Board. 

12. Grounds [3.3] and [3.4] are not tenable.  It was manifest that Mr Kola contested that the criteria under s 16(1) were satisfied before the Board and again before the ADD.

13. Grounds [3.1] and [3.2] merely complain of the result being the dismissal by the ADD of the appeal.

14. The grounds of appeal, other than grounds [3.5] and [3.6], complain of the evaluation of the evidence by the ADD.  These grounds involve questions of fact.  Appeals may be brought from the ADD to the Supreme Court with the permission of the ADD or the Supreme Court.[4]  It is apparent from the statutory provisions referred to above that both the Board and the ADD are constituted by professionals with an expertise in mental health and illness.  In the ordinary course, permission should not be granted to appeal against findings of fact that are not attended by any obvious error or patent improbability. 

    [4]   Guardianship and Administration Act 1993 (SA) s 70.

15. We refuse permission to appeal.