LM and Mental Health Review Board

[2006] WASAT 123

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   HUMAN RIGHTS

ACT: MENTAL HEALTH ACT 1996 (WA)

CITATION:   LM and MENTAL HEALTH REVIEW BOARD [2006] WASAT 123

MEMBER:   JUDGE J ECKERT (DEPUTY PRESIDENT)

HEARD:   25 MAY 2005

DELIVERED          :   17 MAY 2006

FILE NO/S:   MHA 12 of 2005

BETWEEN:   LM

Applicant

AND

MENTAL HEALTH REVIEW BOARD
Respondent

Catchwords:

Review of Mental Health Review Board decision or order ­ Community Treatment Order ­ Involuntary detention order ­ Periodic reviews of involuntary orders ­ Review of involuntary status ­ Requested reviews under s 142 Mental Health Act 1996 ­ Hearing de novo ­ Discretion to exercise functions and powers

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth)
Mental Health Act 1996 (WA), s 3, s 5, s 26, s 43, s 43(2)(a), s 49(3), s 67, s 73(A), s 76(1), s 79, s 138, s 138(3), s 139, s 139(2), s 142, s 145, s 145(2), s 148A(1)

State Administrative Tribunal Act 2004 (WA), s 9, s 27, s 29, s 29(1), s 29(3), s 29(9), s 46, s 59(2), s 59(10)(a)

Result:

The answer to the question of law referred to the President and delegated to the Deputy President for decision is that where, prior to any decision of the Tribunal under s 29(3) of the State Administrative Tribunal Act 2004 a person ceases to be an involuntary patient under the Mental Health Act 1996, then the Tribunal has no jurisdiction to deal with the application for review by it of the decision or order of the Mental Health Review Board relating to that person.

Category:    A

Representation:

Counsel:

Applicant:     Mr Stephen Walker

Respondent:     Ms Rosanna Panetta

Solicitors:

Applicant:     Mental Health Law Centre

Respondent:     State Solicitor's Office

Case(s) referred to in decision(s):

Coal & Allied Operations Pty Ltd v AIRC [2000] HCA 47

Crimmins v Stevedoring Industry Finance Committee (1999) 167 ALR 1

EO v Mental Health Review Board [2000] WASC 203

Graham Barclay Oysters Pty Ltd v Ryan; Ryan v Great Lakes Council; State of New South Wales v Ryan [2002] HCA 54

Re PW Adams Pty Ltd v Australian Fisheries Management Authority (1995) 39 ALD 339

Case(s) also cited:

Re Gowing v Civil Aviation Authority (1990) 11 AAR 411

Re Surf Air v Civil Aviation Authority (1991) 22 ALD 118

Stoljarev v Australia Fisheries Management Authority (1995) 39 ALD 517

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. LM was made the subject of an involuntary order by a psychiatrist under the provisions of the Mental Health Act 1996 (WA). Another psychiatrist and subsequently the Mental Health Review Board reviewed the order at LM's request and confirmed it. Soon after, a third psychiatrist discharged the order so that it no longer had any effect.

2. LM sought review by the State Administrative Tribunal of the original MHRB decision to affirm the order.  However, as LM was no longer subject to the order a question of law was referred to the President of the Tribunal asking whether the Tribunal could review an order of the MHRB where, prior to any decision of the Tribunal on the review application being made, the order is cancelled or otherwise expires. 

3. The President referred the question to Deputy President Judge Eckert who concluded that as a question of law, the Tribunal has a discretion as to whether it exercises its powers and functions unless there is a positive obligation on the decision‑maker under the enabling Act to exercise a particular function.  As the review of a decision or order of the MHRB is a review de novo, and as the Tribunal stands in the shoes of the decision‑maker, it should ask the question asked by the MHRB under the MH Act, but as at the time of the review. Where a person is not subject to involuntary status or an involuntary order at the time of the Tribunal's decision on the review, then no sensible question can be asked as to the status of the person and no sensible decision can be made by the Tribunal as at the time of the review.

4. With respect to the specific question of law as it applied in the case of LM, as there was no involuntary order in place in relation to LM from shortly after lodging his application for review with the Tribunal, this Tribunal could not review the decision of the MHRB, made when LM was the subject of an involuntary status order. If an applicant applied to the MHRB for review under s 142 of the MH Act under the same circumstances, the MHRB would not have power to hear the application and the Tribunal was bound by similar restrictions. As LM was no longer subject to an involuntary status, the Deputy President found that the Tribunal did not have jurisdiction to review the order that applied to LM when he filed his application for review with the Tribunal.

5. With respect to applications to the Tribunal to review orders made by the MHRB on periodic reviews under s 138 or s 139 of the MH Act, where the person is not the subject of an involuntary order at the time of lodging an application with the Tribunal or at any time prior to the Tribunal making its decision, then pursuant to s 138(3) and s 139(2) the person has not been continuously an involuntary patient. As the Tribunal stands in the shoes of the decision‑maker and makes the decision relevant as at the time of the review, the Tribunal has no jurisdiction to hear the matter.

6. Where a person continues to be an involuntary patient as defined by the MH Act and seeks review by the Tribunal of an order or decision of the MHRB, related to either a periodic review or requested review, and the nature of the order to which the person is subject at the time of application to or decision of the Tribunal has changed (for example, from an involuntary detention order in a treatment facility to a Community Treatment Order), then the Tribunal may review the new order, so long as the person has continuously been an involuntary patient in the terms of the MH Act. However, the Tribunal should not, as a matter of course, usurp the primary function of the MHRB to review orders under s 138, s 139 or s 142 of the MH Act.

Background

1. On 25 March 2005, a psychiatrist, having regard to s 26 of the Mental Health Act 1996 (WA) (the MH Act), made an order under s 43(2)(a) of the MH Act that the applicant be involuntarily detained.

2. At 10 am on 19 April 2005, another psychiatrist, having regard to s 26 of the MH Act ordered that the applicant continue to be involuntarily detained pursuant to s 49(3) of the MH Act until 18 June 2005.

3. In the interim, the applicant applied under s 142 of the MH Act for the respondent to review his status as an involuntarily detained patient.

4. On 20 April 2005, after a hearing held at Graylands Hospital, the Mental Health Review Board (MHRB) ordered that the applicant's status "…as an involuntary patient detained in an authorised hospital should continue and that the order made to that effect on 19 April 2005 should continue to have effect" (MHRB written reasons for decision dated 13 May 2005, page 4).

5. On 28 April 2005, the applicant applied for review of the MHRB decision by the State Administrative Tribunal (the Tribunal) pursuant to s 148A(1) of the MH Act. The applicant sought a decision "that a person does not have a mental illness on the grounds of a spiritual, political belief as stated in the patient's rights guide booklet 2002" (LM's application to the Tribunal, page 3).

6. Also on 28 April 2005 but at 2.30 pm, a third psychiatrist, having regard to s 26 of the MH Act ordered that LM "is no longer an involuntary patient". The applicant was therefore discharged from his involuntary status effective from that time. Consequently, the order made by the first psychiatrist on 25 March 2005, which was reviewed and confirmed by the second psychiatrist on 19 April 2005, and which was, in turn, reviewed and confirmed by the MHRB on 20 April 2005, was discharged and was no longer effective.

The preliminary question of law

1. At the first directions hearing of this matter before this Tribunal, on 13 May 2005, the applicant indicated that he would like to proceed with his application for review, even though the involuntary order ceased to have any effect on the application.  He felt that he had been unjustly treated and he wished to set the record straight.  He wanted to show that the order should never have been made. 

2. Counsel argued that a preliminary question of law arose, which had to be dealt with so that the Tribunal could be satisfied that it had jurisdiction to hear the substantive issues raised by the application.

3. After discussion with the President and submissions and comments from counsel, the question of law was formulated as follows:

   "Whether the Tribunal has jurisdiction to review a decision of the Mental Health Review Board to affirm an involuntary order where, subsequent to the decision of the Board, but prior to any decision of the Tribunal under section 29(3) of the State Administrative Tribunal Act 2004 (WA), the relevant involuntary order is cancelled or otherwise expires."

4. This question of law was referred to the President of the Tribunal under s 59(2) of the State Administrative Tribunal Act 2004 (WA) (the SAT Act) who gave it to me for resolution according to my opinion, under s 59(10)(a) of the SAT Act.

5. The applicant and respondent both filed extensive written submissions on the question of law.  On 25 May 2005 they made oral submissions in support.  On 10 June 2005, I delivered an oral decision on the question of law.  A transcript of that oral decision was sent to the parties.  These written reasons reflect those oral reasons, and represent my understanding of the issues and of the resolution of the question of law, as at 10 June 2005.  In setting out my reasons I have primarily used the facts in LM's case to answer the question of law.

Relevant legislation

1. Section 9 of the SAT Act provides the objectives of the Tribunal when it deals with matters within its jurisdiction. This section states:

   "The main objectives of the Tribunal in dealing with matters within its jurisdiction are ‑

   (a)to achieve the resolution of questions, complaints or disputes, and make or review decisions, fairly and according to the substantial merits of the case;

   (b)to act as speedily and with as little formality and technicality as is practicable, and minimise the costs to parties; and

   (c)to make appropriate use of the knowledge and experience of Tribunal members."

2. I kept the provisions of s 9 in mind whilst considering the resolution of this question of law.

3. I also bore in mind s 5 of the MH Act which provides that the objects of that Act include ensuring that a person with a mental illness receives the best care and treatment with the least restriction of their freedom and least interference with their rights and dignity and to ensure the proper protection of patients and the public.

4. I also considered s 27 and s 29 of the SAT Act. Section 27 describes the nature of hearings to be conducted by this Tribunal when exercising its review jurisdiction. It provides:

   "(1)The review of a reviewable decision is to be by way of a hearing de novo, and it is not confined to matters that were before the decision-maker but may involve the consideration of new material whether or not it existed at the time the decision was made.

   (2)The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.

   (3)The reasons for decision provided by the decision-maker, or any grounds for review set out in the application, do not limit the Tribunal in conducting a proceeding for the review of a decision."

5. Section 29 of the SAT Act broadly outlines the powers of the Tribunal when exercising its review jurisdiction. Subsection (1) states:

   "(1)The Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decision-maker in making the reviewable decision."

6. This subsection empowers the Tribunal to exercise the functions of the decision‑maker that the decision‑maker exercised, or that were "exercisable" by the decision‑maker, when it made the decision that is the subject of review.

7. Having conducted the hearing, s 29(3) provides that:

   "(3)The Tribunal may ‑

   (a)       affirm the decision that is being reviewed;

   (b)       vary the decision that is being reviewed; or

   (c)set aside the decision that is being reviewed and –

   (i)      substitute its own decision; or

   (ii)send the matter back to the decision‑maker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate,

   and, in any case, may make any order the Tribunal considers appropriate."

8. Finally, s 29(9) of the SAT Act qualifies s 27 and s 29, stating that:

   "(9)To avoid doubt it is declared that this section and section 27 do not extend to requiring or enabling the Tribunal to deal with a matter that is different in essence from the matter that was before the decision‑maker."

9. The cumulative effect of all of these sections is that when reviewing decisions, such as those of the MHRB as is presently before the Tribunal, the Tribunal stands in the shoes of the original decision‑maker. In doing this, the Tribunal must make the correct and preferable decision at the time of the review, not at the time when the original decision‑maker made the decision. The Tribunal looks at the matter afresh as though it were the decision‑maker, but also within the bounds of the SAT Act. Furthermore, the Tribunal can only do that which the original decision‑maker had the power to do; and nothing more.

MHRB reviews

1. In a review matter under the MH Act, the Tribunal should consider what the MHRB had power to do when making the original decision; and the Tribunal must consider exercising those powers as at the present time. The issue therefore for the Tribunal to address is the same as that which was before the MHRB, but the aim is to produce the correct and preferable decision at the present time (that is, now, at the time of review).

2. In this case, the issue that came before the MHRB for determination was expressed at [7] of its reasons:

   "The Board's task is to consider LM's situation and to decide whether he needs to stay in hospital as an involuntary patient."

3. This would therefore be the issue that this Tribunal would address when conducting its review of the MHRB decision. There are two limbs to this question. Firstly, the Tribunal would ask whether the applicant is an involuntary patient as defined by the MH Act, and, if so, whether the applicant should be involuntarily detained in a treatment facility or allowed to live in the community subject to a Community Treatment Order (CTO). Under the MH Act a person is an "involuntary patient" whether they are involuntarily detained or subject to a CTO (s 3 MH Act).

4. When the MHRB reviews orders made by psychiatrists, it conducts three different types of reviews, each of which is directed differently by the provisions of the MH Act. First, there are reviews of the initial order that the MHRB must conduct under s 138 of the MH Act. Second, there are periodic reviews that the MH Act requires the MHRB to conduct at certain specified times pursuant to s 139 of the MH Act (for the purposes of these reasons, reviews under s 138 and s 139 are referred to as periodic reviews). Finally, there are those reviews that are requested by the patient or other interested person under s 142 of the MH Act (requested reviews).

5. The MHRB conducted its review of the involuntary orders with respect to LM, at the request of LM made under s 142 of the MH Act. It is therefore a requested review. In the case of requested reviews, the issue that the MHRB must address in making its decision is almost always whether a person should continue to be an involuntary patient.

6. In requested reviews, due to the wording of s 142 of the MH Act, the focus is not on any particular order but on whether the involuntary status should continue regardless of whether or not the particular order that confers the involuntary status was the original order. This suggests an intention that the MHRB is to look at the involuntary status per se. As that is what the MHRB was required to do, and it seems that is what the MHRB did as per [7] of its written reasons (see [28] above), then that is what this Tribunal is also required to do.

7. In the case of periodic reviews, s 138 of the MH Act obliges the MHRB to carry out a review under s 138, no more than eight weeks after the making of the initial order and under s 139 of the MH Act at subsequent six monthly intervals. For an initial review under s 138 of the MH Act, the review question is whether or not "the order" should continue to have effect. "The order" can only mean, in my view, the initial order that commenced the involuntary status under s 43 or s 67 of the MH Act. It is not obvious whether this is also the case for the subsequent six monthly reviews. For the subsequent reviews, s 139 of the MH Act uses the same language: that is, "whether or not the order should continue to have effect". "The order" might be the initial order or the second review, but for any subsequent review it cannot be the initial order. This suggests that despite the use of the words "the order" in s 138 and s 139, the issue for the MHRB when conducting a subsequent periodic review is whether the involuntary status of the patient should continue under whatever order happens to be in place at the time of the review, and in my view, "the order" should be interpreted accordingly.

8. Therefore, when a patient requests under s 142 of the MH Act that the MHRB review an order and there is no other periodic statutory obligation on the MHRB to carry out a review, the question for the MHRB's determination is whether the person should continue as an involuntary patient. However, when the MHRB is required to conduct a periodic review under s 138 or s 139, the MHRB looks at the order and whether it should continue to have effect (the effect of the order being to impose an involuntary status on the patient), rather than at the patient per se under the MH Act.

9. On this basis, it can therefore be concluded that if the patient's involuntary status continues at the time of the hearing but the identity of the order that confers the status has changed, then the Tribunal should hear the review regardless of the particular order that underlies it. If the correct and preferable decision at the time of the Tribunal's decision is that the patient should not be the subject of an involuntary order, then that should be the decision. This is reinforced by the wording of s 145(2), that the MHRB, after conducting a review, can order that a person is no longer an involuntary patient.

10. However, the MHRB has the primary function of conducting requested and periodic reviews. If an application for review by the Tribunal is made originally with respect to a CTO, and at the time of hearing the relevant order is for an involuntary detention order, then, although the applicant has continuously remained an involuntary patient, the Tribunal should exercise caution before hearing the application, if to do so would usurp the MHRB's primary review function. In other words, where a patient the subject of (for example) a CTO becomes subject to a detention order, then the MHRB would be required to review that new order under s 138 or s 139 of the MH Act, and that review might not occur prior to the original review matter coming before the Tribunal. In that case, the patient should usually look to the MHRB for the review of the new order. But where the MHRB has conducted its review between the initial application to the Tribunal and the hearing of the application by the Tribunal, then the Tribunal would be reviewing the decision of the MHRB relating to the new order, and in my interpretation of the relevant law for the Tribunal to do that is appropriate.

1. In my view, the above analysis is applicable to, but probably unnecessary in, the situation where the patient was, for example, on a CTO at the time of the MHRB hearing and, by the time of the Tribunal review, the CTO has been validly extended. In that case, the original CTO remains in existence, but continues for the extended period. The same also applies under s 73A and s 76(1) of the MH Act.

2. It is, however, an entirely different situation when the person has ceased to be an involuntary patient (which includes no longer being subject to a CTO) by the time of the Tribunal review. Had the person ceased to be an involuntary patient by the time of the MHRB hearing, there would have been no power in the MHRB to conduct a review. This is made clear by s 138(3) and s 139(2) of the MH Act (periodic reviews) both of which provide that the obligation on the MHRB to conduct a periodic review only applies where "the patient has continuously been an involuntary patient since the initial order was made" and by s 142 (requested reviews) of the MH Act.

3. In the case of requested reviews, all the matters that the MHRB can be requested to review presuppose the continued existence of the involuntary status.  The question before the MHRB when conducting a requested review is whether a person should continue to be an involuntary patient.  Where the patient no longer has an involuntary status, that question cannot sensibly be asked and the MHRB is unable to conduct a review. 

4. When the Tribunal conducts a review of the MHRB's order, it steps into the shoes of the MHRB and asks itself that same question, namely, should the applicant continue to be an involuntary patient.  When the applicant no longer has an involuntary status, the Tribunal is also unable to sensibly ask itself that question.  It has no greater powers than the MHRB.  The Tribunal is required to consider the MHRB's decision de novo and make the correct and preferable decision at the time of the decision on review, taking into account any relevant evidence or issues such as the cancellation of the order.

Submissions and the authorities

1. Putting aside the above reasoning and conclusions for a moment, it is necessary to deal with the submissions and authorities put forward by counsel for each party.  In particular, I was referred to the decision of Templeman J in EO v Mental Health Review Board [2000] WASC 203 and the reasoning of Sackville J in Re PW Adams Pty Ltd v Australian Fisheries Management Authority (1995) 39 ALD 339, both of which were relied on by counsel. Both of these cases involved reviews where the continuing relevance of the initial orders being reviewed was brought into question.

2. In Re PW Adams Pty Ltd v Australian Fisheries Management Authority, the practical significance of the decision under review had been diminished by reason of the expiry of the fishing permit in question.  Nevertheless, the Administrative Appeals Tribunal was still specifically empowered to review the decision that remained on foot. The fact that the reviewable decision had lost its practical significance is one thing and the power to review the decision is another. What the Re PW Adams Pty Ltd v Australian Fisheries Management Authority decision appears to me to be saying is that, even where there is no reviewable order in place, there is a separate power of review, completely separated from the concept of the reviewable decision and its effect (see in particular page 357).  The Tribunal is, in these circumstances, obliged to conduct the review.  This raises the question whether this Tribunal must review every matter that properly comes within its jurisdiction (as argued by Mr Walker, counsel for the applicant), or whether it has discretion to refuse to hear applications where the order being reviewed no longer exists and it therefore considers the review to be futile.  This is discussed further below.

3. Both counsel made submissions regarding the power of a tribunal to hear review applications where the underlying decision to be reviewed no longer exists or applies for a variety of reasons.  In this regard, I accept Ms Panetta's submissions on behalf of the respondent and the authorities she relies on.  I agree with her submission that, with respect to the review of decisions that have expired or otherwise ceased to apply, generally speaking the reviewing body has the power to review the expired decision.  But, there is a presumption that the reviewing body ought to decline to exercise its discretion on the basis that to do so would be futile given that no decision of any practical effect could be substituted.  (Re Gowing and Civil Aviation Authority (1990) 11 ALR 411 at 208 per Deputy President McMahon; PW Adams Pty Ltd v Australia Fisheries Management Authority per Sackville J; Stoljarev v Australia Fisheries Management Authority (1995) 39 ALD 517 at 518 per Davies J; Re Surf Air and Civil Aviation Authority (1991) 22 ALD 118 at 123 per President O'Connor J)

4. However, as noted earlier, as a matter of statutory interpretation, under the MH Act it is my view that, as the MHRB would have no power under the MH Act to review an order that no longer exists, and as the Tribunal is required to ask itself the same question as the MHRB when reviewing an order and as it steps into the MHRB's shoes, the Tribunal cannot review a decision to make an order when that decision no longer exists.

5. It is possible to distinguish the Supreme Court case of EO v Mental Health Review Board on this question of law and from the circumstances of the present matter, as the Supreme Court formerly heard appeals from decisions of the MHRB as a "rehearing" not as a review de novo.  In [21] of his decision, Templeman J describes a rehearing in the following way:

   "It is an appeal in the nature of a rehearing, based on the original materials and on any additional material which may be admitted."

6. A rehearing is different to a hearing de novo.  This has been well established since Coal &Allied Operations Pty Ltd v AIRC [2000] HCA 47 case. One of the fundamental differences between a rehearing and an inquiry de novo is that in a rehearing the court must find some error in the original decision before it can exercise its discretion to review.  No such constraint applies in this Tribunal.  With a de novo hearing, the matter is considered afresh, regardless of whether or not there is any error in the underlying decision.

7. In Templeman J's decision in EO v Mental Health Review Board, the test was whether or not the result of a particular application was of purely academic interest. Templeman J expressed it in the following way (at [19]):

   "In one sense, therefore, this application is of purely academic interest.  However, the questions raised are not of academic interest to the appellant.  He is entitled to know whether he has been denied any rights to which he is entitled under the Mental Health Act."

8. In that case, the issue in question was whether the applicant, EO, had been denied a fundamental civil right ‑ access to his medical files. The facts were that he had been denied access and so was put in a position where he could not make a sensible decision about his status under the MH Act. He was denied this fundamental right and that was at the heart of the matter.

9. Counsel for LM, Mr Walker, argued in favour of a very broad interpretation of the test laid down in EO v Mental Health Review Board. Essentially, Mr Walker submitted that any application under the MH Act automatically falls under this test as to whether or not the applicant is being denied any rights to which he or she is entitled under the MH Act.  He views the matter from an applicant's point of view, his primary concern being to ensure that the applicant's rights are protected.  Mr Walker's reasoning is quite strong, however if taken to its logical conclusion, a rejection of any application would be treated as a denial of the applicant's rights because, as he argues on page 20 of the transcript:

   "The patient is entitled to know by going to in this case the Supreme Court for a ruling as to whether he has been denied his rights. In other words, he's entitled to a binding decision, I suppose, on that question."

10. In essence, Mr Walker's argument was that if an applicant has had a decision made against him or her in the MHRB, then that decision is per se a denial of the applicant's rights under the MH Act. In this way, the applicant satisfies, in Mr Walker's view, Justice Templeman's academic/non‑academic test.

11. In my view, Mr Walker's argument makes Templeman J's test unnecessary, as in every situation where the MHRB makes findings against an applicant, there would never be a review application which would merely raise an academic question.  In my view, Templeman J's test should be understood to apply only to cases where a denial of some basic civil right is involved, such as an unwarranted refusal to release a patient's medical files.  Therefore, even if EO v Mental Health Review Board did apply in this case, Templeman J's exclusion does not apply to cases solely concerning an application of s 26 of the MH Act. Section 26 cases are based on medical opinion and the applicant's evidence as to whether or not he/she has a mental illness for the purposes of s 26. It is not correct to say that all decisions made in respect of applications under this section involve a denial of a person's human and civil rights under the MH Act. There must be some other civil right being denied for Templeman J's test to apply.

12. Applying this reasoning to the present case, LM's application does not give rise to application of the Templeman J test.

Discretion

1. Mr Walker also argued that the Tribunal has no discretion as to what applications it shall and shall not hear. He argued that, in fact, the Tribunal has a duty to hold a hearing; the Tribunal's hands are tied and there is, as a matter of principle, a right of review. What Mr Walker was saying is that the Tribunal is a creature of statute ‑ a proposition that cannot be refuted ‑ but he takes a further step in his reasoning with which I cannot agree. He argues that, because there is no general discretion vested in the Tribunal by the SAT Act, the Tribunal has no discretion. I cannot agree with that assumption.

2. Mr Walker went on to say that the Tribunal has an obligation, a profound duty to hear every matter that comes before it (by this, I assume that Mr Walker meant that this duty exists where the Tribunal has jurisdiction to hear the matter in the first place).

3. Mr Walker then says that the Tribunal has a duty to hear everything, and I can find no such duty in the SAT Act.  If the Tribunal did have that duty, it would need to be expressly provided in the SAT Act or the relevant underlying enabling Act. The Tribunal can only hear matters validly brought before it under an enabling Act or pursuant to an express provision in the SAT Act. A number of enabling Acts do not impose a positive duty to either deal with a matter or review a decision. Section 29(3) of the SAT Act is cast in discretionary terms and the Tribunal has a discretion to dismiss matters under s 46 of the SAT Act. It is not correct to say that there is a positive duty on the Tribunal to act where no such positive duty is provided for in the Act or the enabling Act under which the Tribunal gets its jurisdiction.

4. In this case, the Tribunal has no jurisdiction. If it did have jurisdiction, then, unless the enabling Act specifically imposed an obligation on the decision‑maker, no obligation would rest on the Tribunal. Section 138 and s 139 of the MH Act do impose a positive obligation on the MHRB to conduct periodic reviews. Arguably there is no discretion in the MHRB – the MH Act creates a statutory body with a positive obligation to do something. However, in the present case, the Tribunal would not be conducting a review of the original order if it held a review hearing; rather it would be reviewing the MHRB's decision. In order to do this, the Tribunal steps into the shoes of the MHRB. It is therefore arguable that, where an application is made to the Tribunal to review a decision of the MHRB arrived at after a mandatory periodic review, the Tribunal must review the decision. Where there is an application under s 142, as in the present case, then in light of s 145 of the MH Act, there is no obligation on the MHRB to review. There is no express obligation imposed on the MHRB by the MH Act and therefore, there is none imposed on the Tribunal.

5. There is a long line of case law regarding the obligations of statutory bodies and whether they are required to exercise their powers.  The common law has traditionally been very reluctant to impose any affirmative duties on statutory bodies, especially a duty to exercise a particular power or function.  This line of cases is found in the law of negligence, where arguments are advanced that a statutory body has a positive obligation to perform a particular power or function and is liable for losses suffered by another party as a result of the authority's failure to act.  In Crimmins v Stevedoring Industry Finance Committee(1999) 167 ALR 1, Gaudron J addresses this issue as to whether a statutory body with statutory powers is obliged to exercise those powers (7‑8):

   "In the case of discretionary powers vested in a statutory body, it is not strictly accurate to speak, as is sometimes done, of a common law duty superimposed upon statutory powers.  Rather, the statute pursuant to which the body is created and its powers conferred operates 'in the milieu of the common law'.  And the common law applies to that body unless excluded…

   Legislation establishing a statutory body may exclude the operation of the common law in relation to that body's exercise or failure to exercise some or all of its powers or functions…"

6. This was reinforced in Graham Barclay Oysters Pty Ltd v Ryan; Ryan v Great Lakes Council; State of New South Wales v Ryan [2002] HCA 54 (5 December 2002). I would not be in a position to find that there is any clear obligation on this Tribunal to exercise any of its powers unless there is a specific provision overriding the common law, as is arguably the case under s 138 and s 139 of the MH Act.

7. Counsel for the respondent referred the Tribunal to the case of Re PW Adams Pty Ltd v Australian Fisheries Management Authority and pointed out that the provisions in the Administrative Appeals Tribunal Act 1975 (Cth) are very similar to the provisions in the SAT Act. It was found in that case that the Administrative Appeals Tribunal had discretion to decide whether or not it hears an application.

8. In summary, statutory bodies do not require a general grant of discretion; that discretion is given to them by the common law and applies unless expressly excluded by the statute.  Statutory bodies sit in the lap of the common law or, as Gaudron J put it, "in the milieu of the common law."

9. Therefore, I find that this Tribunal has a discretion whether or not to exercise power.  In exercising its review jurisdiction, this Tribunal steps into the shoes of the original decision‑maker and exercises the discretion of the original decision‑maker but at the present time.  In the circumstances of this matter, the MHRB would not be able to review an order where there is no order currently in place and therefore, neither can this Tribunal.

The current application

1. Applying this reasoning to the current matter, this Tribunal could, if properly constituted, dismiss the application under s 29(3) of the SAT Act. Alternatively, now that this question of law has been decided, LM may decide to withdraw his application.

Conclusion ‑ the question of law

1. This Tribunal has a discretion as to whether it exercises its powers and functions unless there is a positive obligation on the decision‑maker under its enabling Act (here the MH Act) to exercise a particular function. As the review of a decision or order of the MHRB is a review de novo, and as the Tribunal stands in the shoes of the decision‑maker, it asks the question asked by the MHRB under the MH Act, but as at the time of the review. Where a person is not subject to involuntary status or an involuntary order at any time after lodging a review application and prior to the Tribunal's decision on the review, then no sensible question can be asked as to the status of the person and no sensible decision can be made by the Tribunal as at the time of review.

2. Applying this reasoning to the present case, there is currently no order in place in relation to LM and therefore this Tribunal cannot review the decision of the MHRB, made when LM was the subject of an involuntary status order. If an applicant applied to the MHRB for review under s 142 under the same circumstances, the MHRB would not have power to hear the application and this Tribunal is bound by similar restrictions. As LM is no longer subject to an involuntary status, I find that this Tribunal would not have jurisdiction to review the order that applied to LM when he filed his application for review with this Tribunal.

3. Further with respect to applications to the Tribunal to review orders made by the MHRB on periodic reviews under s 138 or s 139 of the MH Act, where the person is not the subject of an involuntary order at the time of lodging an application with the Tribunal or at any time prior to the Tribunal making its decision, then pursuant to s 138(3) and s 139(2) the person has not been continuously an involuntary patient and as the Tribunal stands in the shoes of the decision‑maker and makes the decision relevant as at the time of the review the Tribunal has no jurisdiction to hear the matter.

4. Where a person continues to be an involuntary patient and seeks review by the Tribunal of an order or decision of the MHRB related to either a periodic review or requested review, and the nature of the order to which the person is subject at the time of application to or decision of the Tribunal has changed (for example, from an involuntary detention order in a treatment facility to a CTO, or where an order has been varied under s 79 of the MH Act) then the Tribunal may review the new order, so long as the person has continuously been an involuntary patient. This principle is subject to the Tribunal not usurping the MHRB's primary review function, as a matter of course.

I certify that this and the preceding [66] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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JUDGE J ECKERT, DEPUTY PRESIDENT