| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : MENTAL HEALTH ACT 1996 (WA) CITATION : LS and MENTAL HEALTH REVIEW BOARD [2012] WASAT 76 MEMBER : JUSTICE J A CHANEY (PRESIDENT) HEARD : 12 DECEMBER 2011 DELIVERED : 20 APRIL 2012 FILE NO/S : MHA 5 of 2011 BETWEEN : LS Applicant
AND
MENTAL HEALTH REVIEW BOARD
Respondent
DEPARTMENT OF HEALTH
Intervener
Catchwords: Mental health - Review of involuntary treatment order - Patient no longer an involuntary patient - Patient wishing to argue that original order invalid - Whether Tribunal has jurisdiction to entertain review Legislation: Charter of Human Rights and Responsibilities Act 2006 (Vic), s 24(1)
Customs Act 1901 (Cth)
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Interpretation Act 1984 (WA), s 18
Mental Health Act 1996 (WA), s 5, s 6(2), s 138, s 138(1), s 138(3), s 139, s 139(1), s 139(2), s 142, s 142(1), s 145(1), s 148A(1)
State Administrative Tribunal Act 2004 (WA), s 9, s 19, s 27, s 27(1), s 27(2), s 29, s 29(1), s 59, s 91 Result: Application dismissed Category: B
Representation: Counsel:
Applicant : Mr SA Walker and Ms SL Boulter
Respondent : No appearance
Intervener : Ms MJ Paterson
Solicitors:
Applicant : Mental Health Law Centre
Respondent : No appearance
Intervener : State Solicitor's Office
Case(s) referred to in decision(s):
Brian Lawlor Pty Ltd and Collector of Customs, (New South Wales) [1978] AATA 49
ITQ Pty Ltd and Hyde Park Management Ltd [2008] WASAT 66
Kracke v Mental Health Review Board [2009] VCAT 646
LM and Mental Health Review Board [2006] WASAT 123
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 Between the commencement of an application for review of a decision of the Mental Health Review Board and the hearing of the application by the Tribunal, the patient concerned ceased to be an involuntary patient. The question therefore arose as to whether the Tribunal had jurisdiction to continue to entertain the application for review, and if it did whether it should do so. A previous decision of the Tribunal, LM and the Mental Health Review Board [2006] WASAT 123 had previously concluded that the Tribunal lacked jurisdiction to deal with an application for review in those circumstances. The applicant in this case argued that that decision should not be followed. 2 The Tribunal reviewed the decision in LM, and a later decision of the Victorian Civil and Administrative Tribunal which the applicant relied upon to urge departure from the conclusion in the earlier Tribunal decision. The Tribunal also examined the relevant statutory provisions, but concluded that the decision in LM was correct, and that the Tribunal lacked jurisdiction. Accordingly, the application was dismissed.
Introduction 3 The issue for determination in this case is whether this Tribunal is required to, or if not whether it has jurisdiction to, and if so whether it should, hear and determine an application for review of a decision of the Mental Health Review Board (Board) where the order the subject of the Board's decision is no longer operative. In LM and Mental Health Review Board [2006] WASAT 123 (LM), the Tribunal concluded that it did not have jurisdiction to review an order in those circumstances. The applicant in this case submitted that the decision in LM should not be followed, that the Tribunal did have jurisdiction to review such an order, and it should do so in the circumstances of the present case. In urging that view, the applicant placed considerable reliance on the decision of the Victorian Civil and Administrative Tribunal in Kracke v Mental Health Review Board [2009] VCAT 646 (Kracke). The applicant also sought to distinguish LM on the basis that it was a review of a different character from that considered in LM. 4 The Department of Health was given leave to intervene in the proceedings. It maintained that the decision in LM was correct, and the Tribunal had no jurisdiction to deal with the present application by reason (Page 4)
that the order the subject of review was no longer operative, so that the patient was, at the time of the review, no longer an involuntary patient.
Background facts 5 The history of events relevant to the present application were not in issue. 6 On 25 March 2011, a psychiatrist, Dr L, completed a Form 6 Involuntary Patient Order (IPO), making the applicant an involuntary patient detained in an authorised hospital. 7 On 12 April 2011, the applicant applied to the Board for a review of her involuntary status pursuant to s 142 of the Mental Health Act 1996 (WA) (MH Act). On 18 April 2011, the applicant's solicitor received notice from the Board that the review would be conducted on 29 April 2011. 8 On 22 April 2011 the Form 6 lapsed, with the result that the applicant became a voluntary patient at the authorised hospital. Accordingly, on 28 April 2011, the Board cancelled the review of the applicant's involuntary status on the basis that she was no longer involuntary. 9 It is apparent that the applicant remained in the hospital until 6 May 2011 when she was 'granted leave' from the hospital. 10 On 10 May 2011, an entry was made in the hospital records that the applicant was 'absent without authority'. On the same day, a doctor and nurse from the hospital attended the applicant's home but the premises were secure and locked. The following day, at 11 am, in the applicant's absence, Dr L completed a Form 10 Community Treatment Order in respect of the applicant which was confirmed by a second doctor at 11.55 am. 11 On 13 May 2011, Dr L and a mental health nurse attended the applicant at a TAFE campus. The hospital records note that the applicant returned to the authorised hospital at about 1.50 pm that day. At 2 pm that day, Dr L completed a Form 11 Revocation of Community Treatment Order in respect of the applicant, and selected the option that the applicant be detained as an involuntary patient. The applicant was then admitted to a ward at the authorised hospital. 12 On 10 June 2011, at 10.30 am, Dr L completed a Form 9 - Continuation of Involuntary Patient Order in respect of the applicant. (Page 5)
13 On 22 June 2011, the applicant's solicitor received notice from the Board that the applicant's involuntary status would be reviewed, pursuant to s 138(1) of the MH Act, on 12 July 2011. On that day, the Board convened and conducted the review. 14 At the review, the applicant's solicitor requested that the Board make a preliminary determination, pursuant to s 145(1) of the MH Act as to whether the applicant was currently an involuntary patient under the MH Act, and accordingly, whether or not the Board had jurisdiction to review the applicant's status. The Board determined that the applicant was an involuntary patient within the terms of the MH Act, and that it had jurisdiction to review the applicant's status. It then decided that the applicant 'remains an involuntary patient in hospital' and that the Board 'is to convene if the applicant is not discharged on a CTO in two weeks time, or within a reasonable time'. 15 On 22 July 2011, the applicant commenced this application in the Tribunal seeking a review of the Board's decision of 12 July 2011. 16 On 3 August 2011, the Tribunal gave directions with a view to the matter being finally heard on 22 August 2011. 17 On 15 August 2011, Dr L completed a Form 10 CTO in respect of the applicant which was subsequently confirmed. In light of that development, and because of certain difficulties with respect to the transcript of the initial hearing, on 22 August 2011 the Tribunal gave further directions and adjourned the hearing to 12 September 2011. One of the directions given was that the Tribunal was to request the Board to conduct an urgent review of the CTO made on 15 August 2011. 18 That review was conducted by the Board on 2 September 2011. At that review, the applicant's solicitor requested that the Board make a preliminary determination as to whether or not the applicant was currently an involuntary patient under the MH Act, and whether or not the Board had jurisdiction to review the applicant's status. The Board decided that the applicant was not an involuntary patient within the terms of the MH Act, and that it did not have jurisdiction to review the applicant's status. 19 As a result of that determination, the applicant was not then subject to any orders. In those circumstances, the matter was brought back before the Tribunal on 6 September 2011 to determine what should happen to the present application. The applicant's solicitors indicated that they wished to have the question of the validity of the orders made by the Board on (Page 6)
12 July 2011 determined, notwithstanding that the applicant was no longer an involuntary patient. Having regard to LM, which had governed the practice of the Tribunal since that decision was delivered, the question as to whether the Tribunal must, can or should hear the application in light of the fact that the applicant is no longer an involuntary patient was directed to be dealt with as a preliminary issue, and it is to that issue which these reasons are directed.
The decision in LM 20 LM was decided following a referral to the President on a question of law under s 59 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), which in turn had been delegated to Deputy President Judge Eckert for resolution. 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 s 29(3) of the State Administrative Tribunal Act 2004 (WA), the relevant involuntary order is cancelled or otherwise expires. 21 The Tribunal reviewed the relevant provisions of the SAT Act including s 9 which sets out the Tribunal's objectives, and s 27 and s 29 which deal with the nature of the Tribunal's review jurisdiction, and the Tribunal's functions in exercising that jurisdiction. 22 The Tribunal then considered the Board's functions which, on a review, became the Tribunal's functions by reason of s 29(1) of the SAT Act. It noted that there are three different types of reviews which the Board can conduct under the MH Act. The first is the review of an initial order that must be conducted under s 138 of the MH Act. Second, there are periodic reviews that the MH Act requires must be conducted at specific times pursuant to s 139 of the MH Act. Finally, there are reviews which can be conducted at the request of a person subjected to an involuntary order pursuant to s 142 of the MH Act. It was an application of the third type with which the Board was concerned in LM. It is an application under s 138 with which I am concerned in this case. 23 In essence, the Tribunal determined that where there had been a replacement or extension of an involuntary order between the Board's determination and the Tribunal's hearing, the Tribunal could review the patient's involuntary status regardless of the change in the order, provided (Page 7)
that the patient had continued as an involuntary patient since the original order was made. 24 At [36], the Tribunal expressed the view that caution should be exercised before hearing an application where the order originally the subject of the application had been replaced by a different involuntary order, so as to preserve the primary function of the Board which is required to review all involuntary orders made as required under s 138 of the MH Act. The Tribunal continued at [38] - [40]: 38 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. 39 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. 40 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. 25 The Tribunal then undertook an analysis of the submissions of the parties and the authorities relied upon by them. It considered whether, as a matter of law, the Tribunal was obliged to exercise its power to review a decision of the Board, or whether it had a discretion whether to do so. It is not necessary to revisit that discussion in detail because, in the end (Page 8)
result, the decision in LM was based upon the reasoning explained in the three paragraphs set out above.
The decision in Kracke 26 Kracke's case concerned the consequences of a failure by the Mental Health Review Board of Victoria (Victorian Board) to carry out statutorily mandated reviews of involuntary treatment orders to which Mr Kracke had been subject over a number of years. When the Victorian Board eventually realised it was still to complete the reviews, it brought on a hearing to perform the review. Mr Kracke submitted it was too late, and that exceeding the time limits prescribed by the Act meant that the safeguards in the system had failed and his human rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter of Human Rights) had been breached. He submitted that the treatment orders to which he was subject had become invalid. 27 The Victorian Board accepted the importance of respecting Mr Kracke's human rights, but confirmed the orders. It decided that treating him involuntarily was justified on medical grounds which remained valid even when the review periods were exceeded. Mr Kracke sought a review of that decision before the Victorian Civil and Administrative Tribunal (VCAT). 28 VCAT, constituted by its then President Justice Bell, rejected Mr Kracke's submission that the treatment orders became invalid immediately upon the expiration of the time for conducting the reviews. His Honour examined the operation of the Charter of Human Rights and concluded that courts and tribunals were bound to act compatibly with it. That included VCAT when exercising its review jurisdiction. He found that Mr Kracke's human rights were being limited by his involuntary treatment in a number of respects. He found, however, that those limitations were justified because the treatment to Mr Kracke was only given on grounds of medical necessity and were subject to various safeguards. He found that a breach of one of those safeguards, namely the requirement for reviews, did not render the treatment orders invalid by reason of a breach of his human rights, because the overall system of safeguards operated in Mr Kracke's interests. His Honour found, however, that the failure to conduct hearings in a timely way did amount to a breach of Mr Kracke's right to a fair hearing which is provided for in s 24(1) of the Charter of Human Rights. He determined that it was appropriate to make a declaration as to that breach, albeit that the validity of the treatment orders was unaffected. (Page 9)
29 The Kracke case was decided as a preliminary issue. Mr Kracke was, at the time that VCAT considered the preliminary issue, subject to a treatment order made under the Act. The declaration made by the Tribunal did not affect the operation of that order. It remained susceptible to a merits review in the ordinary course, which presumably followed the decision on the preliminary issue. That is a fundamental distinction between Kracke and LM.
The relevant statutory provisions 30 As mentioned above, reviews by the Board can occur under three sections of the MH Act, being initial reviews under s 138, periodic reviews under s 139, or requested reviews under s 142. Those sections read as follows: 138. Review to decide if order should continue in effect (1) After the making of - (a) an order for a person to be admitted to, and detained in, an authorised hospital as an involuntary patient; or (b) a community treatment order, (the initial order) the Board is to carry out a review of whether or not the order should continue to have effect. (2) The review is to be carried out as soon as is practicable after the initial order is made, and in any event not later than 8 weeks after that time. (3) Subsection (1) only applies if the person has been continuously an involuntary patient since the initial order was made. (4) Subsection (1) does not apply where an order of the kind mentioned in that subsection is made while a person is an involuntary patient if - 139. Periodic reviews after review under s. 138 (1) Not later than 6 months after a review in respect of a person has been carried out under section 138 or this section, the Board is to (Page 10)
carry out a further review of whether or not the order should continue to have effect. (2) Subsection (1) only applies if the person has been continuously an involuntary patient since the last review was carried out. 142. Applying for review by Board (1) An application may be made to the Board, in writing, for the review of - (a) whether a person should continue to be an involuntary patient; or (b) whether a person should continue to be detained in an authorised hospital as an involuntary patient; or (c) whether a person who is detained in an authorised hospital as an involuntary patient should have been, or should be, transferred to another authorised hospital; or (d) whether - (i) the responsibility for supervising the carrying out of a community treatment order; or (ii) the responsibility for ensuring that a patient receives the treatment outlined in a community treatment order, should have been, or should be, transferred; or (e) any other decision made in relation to a person who is an involuntary patient, other than a decision under this Part. (2) An application may be made by the patient concerned, an official visitor, or any other person who the Board is satisfied has a genuine concern for the patient. (3) An application may be made at any time except within 28 days after the Board has made a determination the making of which involved a consideration of substantially the same issue as would be raised by the proposed application. 31 The Tribunal in LM noted that the obligation of the Board to carry out a review under either s 138 or s 139 'only applies if the person has been continuously an involuntary patient since the last review was carried out'. If the person has ceased to be an involuntary patient at the time of the Board's review, the statutory authority to conduct the review (found under s 138(1) or s 139(1) respectively) no longer exists. That is (Page 11)
consistent with the nature of the review to be undertaken in either situation. The question to be posed to the Board under s 138(1) or s 139(1) is 'whether or not the order should continue to have effect'. If there is no order which has effect at the time of the Board's review, there is nothing for the Board to determine. It is therefore logical that the power to review only applies where the person the subject of the order continues to be an involuntary patient, a proposition reinforced by the express terms of s 138(3) and s 139(2). 32 Section 142 of the MH Act does not contain the specification that s 142(1) only applies where the patient concerned continues to be an involuntary patient. It is, however, implicit, from the questions which s 142(1) specifies might be considered on a review under that section, that the patient concerned is subject to an involuntary order. If not, then none of the questions contained in s 142(1) could be in issue. 33 The Tribunal, when dealing with a matter in the exercise of its review jurisdiction, exercises the functions and discretions of the original decisionmaker - SAT Act s 29. The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review - SAT Act s 27(2). Section 27(1) of the SAT Act specifies that the hearing is a hearing de novo, and is not confined to matters that were before the decisionmaker but may involve consideration of new material. 34 It follows that the Tribunal has jurisdiction to do that which the Board had jurisdiction to do in making its original decision, save that the Tribunal exercises that jurisdiction in light of the circumstances and materials as they exist at the time of the Tribunal's consideration of the review. If a person has ceased to be an involuntary patient at the time of the Tribunal's review, then the requirement (and power) to carry out a review under s 138 or s 139 falls away. That is the effect of the decision in LM, and I consider that the conclusion reached in that case is correct.
The applicant's submissions 35 The applicant made lengthy and detailed submissions contrary to the conclusion which I have just reached. I do not consider that those submissions support a different conclusion. I will briefly explain why that is so. 36 By reference to various passages in Kracke, the applicant's counsel, Mr Walker, submitted that careful consideration of the language of the MH Act and the SAT Act needs to be undertaken having regard to their purpose and context. He submitted that, in considering the interpretation (Page 12)
of that legislation, the Tribunal needed to decide on the relevant underlying social purpose of the Act and the relevant statutory provisions. 37 In essence, I take the applicant's proposition to be consistent with the statutory command of s 18 of the Interpretation Act 1984 (WA) which requires provisions of written laws to be interpreted by way of a construction which would promote the purpose and object underlying the particular written law. I accept, having regard to that approach, that the underlying purpose of the relevant provisions of the MH Act are as set out in s 5 which reads as follows: Objects of Act The objects of this Act include - (a) to ensure that persons having a mental illness receive the best care and treatment with the least restriction of their freedom and the least interference with their rights and dignity; and (b) to ensure the proper protection of patients as well as the public; and (c) to minimize the adverse effects of mental illness on family life. 38 The Tribunal, in exercising a function under the MH Act is obliged to ensure that the objects of the Act are achieved - MH Act s 6(2). 39 I do not consider, however, that it is possible to confer on the Tribunal a jurisdiction in relation to reviews under the MH Act, which goes beyond the jurisdiction of the Board under which it makes a reviewable decision. The Tribunal is confined to the statutory jurisdiction conferred on it by the enabling legislation (in this case the MH Act) and the SAT Act. It cannot embark on some wider review or enquiry simply because to do so might be thought to further the objects of the MH Act. 40 Mr Walker also made reference to s 148A(1) of the MH Act which specifies that a person 'who is dissatisfied with the decision or order' of the Board may apply to the Tribunal for a review of that decision or order. The applicant argues that she is such a person, but her dissatisfaction has not waned by reason of the fact that subsequently the decision or order ceased to have an operative effect. Whilst that may be so, its consequence cannot be to confer on the Tribunal any power to do anything more, or address any different questions, than the Board could do or address in the circumstances which pertain at the time of the Tribunal's review. It merely enables an aggrieved person to invoke the Tribunal's review (Page 13)
jurisdiction. The exercise of that jurisdiction is then governed by Pt 3, Div 3 of the SAT Act and the provisions of the enabling Act relevant to the jurisdiction to make the original decision. 41 The applicant's counsel also places reliance on s 19 of the SAT Act which deals with the relationship between judicial review proceedings and review proceedings in the Tribunal. He submits that the 'Tribunal is the appropriate and best jurisdiction for the purpose of obtaining a remedy against the invalid exercise of executive power, which should be the preferred first forum for the applicant in all the circumstances of this matter'. He relies as authority for that proposition on Brian Lawlor Pty Ltd and Collector of Customs, (New South Wales) [1978] AATA 49 (Brian Lawlor). That case concerned an application for review of a decision to revoke a warehouse licence which had been granted under the Customs Act 1901 (Cth). The Tribunal found that no power of revocation existed under that Act, and therefore the purported revocation was of no effect at law. The question then arose as to whether, given that the decision was invalid, there was a decision capable of being the subject of review by the Administrative Appeals Tribunal (AAT), and what remedy should be granted if such a review power existed. In the course of his reasons, the then President of the AAT, Brennan J discussed the undesirable consequences if the Tribunal was unable to correct the error which it had detected so that an applicant would then be required to bring proceedings in a court of competent jurisdiction to challenge the validity of the decision. Presumably it is that discussion which is said to support the proposition that the Tribunal should 'be the preferred first forum'. I do not accept that the decision supports that proposition. The passage in question was simply directed to an exploration of the consequences of alternative constructions of the expression 'made in the exercise of powers conferred by an enactment' found in the statutory provision which identified decisions in respect of which an application for review could be made. 42 The decision in BrianLawlor was that the AAT was not powerless to deal with a decision which was purportedly made in the exercise of the relevant power, notwithstanding its conclusion that the power had not been validly exercised. It is important to note that it was considering a decision which, absent a declaration of invalidity, would have continued to be relied upon by the original decisionmaker. The President said: The inconvenience of this construction would appear even more manifest if the invalidity should appear only in the course of a hearing before the Tribunal. Then the Tribunal, perceiving the injustice done by the excess of (Page 14)
power, would be constrained to send the applicant away without remedy, comforting him with the advice that if he should bring proceedings in a court of competent jurisdiction to challenge the validity of the decision, and if the court should determine the issues in the same way as they appeared to the Tribunal, the decision would be held invalid, and the applicant might then expect that the decision-maker should start again and, provided the decision-maker did not make a similar error, a fresh unfavourable decision could be brought up for review before the Tribunal once more. It seems absurd that immunity from review could be secured by proof that the decision-maker's exercise of power so far miscarried as not to be a valid exercise of the power at all. 43 The situation in the present case is quite different. Here, the power of the Tribunal (being the same as the power of the Board at first instance) only exists if the person concerned has been continuously an involuntary patient since the order the subject of the proposed review was made. If that prerequisite to the exercise of jurisdiction is absent, consequences of the type discussed by Brennan J do not flow. There is nothing more which the affected person needs to do so as to ensure that they are no longer the subject of an involuntary order. The circumstances dealt with in BrianLawlor would apply if an authorised hospital or medical practitioner were continuing to rely upon the validity of the order, and the patient concerned was continuing to be subject to the restraints of the order. 44 Under the heading, Rule of Law, the applicant refers to various authorities to support the proposition that governments cannot take coercive action without lawful authority. That is a proposition which can readily be accepted. Those authorities are then said to support a submission that 'the applicant cannot be wronged by the State and then left without an administrative law remedy that Parliament clearly contemplated, no matter that inconvenience may result', and that 'the relevant provisions of both the SAT Act and the MH Act discern a legislative intention that a person in the position of the applicant is entitled to a remedy'. 45 The State Administrative Tribunal is a creature of its own Act, and the enabling Acts which give it jurisdiction. It is not a court, and it has no inherent jurisdiction. Absent a specific statutory jurisdiction, the Tribunal has no capacity to undertake the resolution of matters in dispute. Even if it is accepted, as the applicant submits, that by reason of the Tribunal's statutory objectives of expedition, cost effectiveness and informality make it more convenient to have all questions which might arise under the MH Act dealt with in the one jurisdiction, that does not permit the (Page 15)
Tribunal to assume a jurisdiction which the enabling Act does not confer on it. 46 The applicant further submits that it is open to the Tribunal to determine whether jurisdictional facts exist prior to it exercising its functions. I accept that proposition. The submission appears, however, to be directed to the proposition that the original question decided by the Board, namely whether the applicant was an involuntary patient, was one which it was required to decide. In fact the Board did decide that question, although it made a decision contrary to the submissions of the applicant at the time. Had the order continued to have effect, or had the applicant continuously remained an involuntary patient as a result of subsequent orders, it would have been open to, and appropriate for, the Tribunal to consider the jurisdictional fact which was decided by the Board on 12 July 2011. But the situation has changed. A new jurisdictional fact now requires consideration, being the question of whether or not the applicant has continuously remained an involuntary patient since the time of the making of the order the subject of review. It is precisely that exercise which has led to this preliminary issue and to the decision to which I have come. 47 The applicant made detailed submissions in relation to the necessity to preserve human rights and civil liberties, and as to the public interest in examining questions as to the regularity of the making of involuntary treatment orders. However sympathetic one might be to the sentiments expressed in those submissions, those considerations cannot confer on the Tribunal a jurisdiction which it does not have. For that reason, I do not propose to deal with the submissions in detail. 48 Finally, submissions were made as to the capacity of the Tribunal to make a declaration pursuant to s 91 of the SAT Act, notwithstanding that it may make no other order. In the course of those submissions, reference was made to a passage from a decision of the Tribunal in ITQ Pty Ltd and Hyde Park Management Ltd [2008] WASAT 66 at [35] - [36], (which was cited with approval in Kracke at [87]), where I said: 35 Once it is open to the Tribunal to consider the matters referred to it, … it follows that the Tribunal has jurisdiction to grant any of the remedies specified … , including s 91. 36 It is correct, as the respondent submits, that s 91 is a statutory power which can only be exercised by the Tribunal "instead of any orders it could make, or in addition to any orders it makes" in the proceeding. The Tribunal must, therefore, have jurisdiction to deal with the matter, and make orders in relation to it, before it can (Page 16)
utilise the power of s 91 to make a declaration. In other words, it is not open to a party to come to the Tribunal seeking a declaration under s 91 in respect of a matter which is not otherwise susceptible to the Tribunal's jurisdiction. 49 The important words, for present purposes, are '[o]nce it is open to the Tribunal to consider the matters referred to it'. For reasons for which I have explained, that precondition to the exercise of the declaratory power under s 91 is not satisfied in this case. Again, arguments to the effect that it is desirable that the Tribunal grant a remedy so as to influence normative change in practices by agencies involved in the care of mentally ill patients, or that, as a matter of policy, patients should have access to the Tribunal to vindicate concerns about past treatment, or that the Tribunal should have a role in the protection of safeguards built into the MH Act, cannot provide a basis for conferral of jurisdiction on the Tribunal which is plainly absent in the enabling Acts.
Conclusion 50 For those reasons, I consider that the decision in LM was correct, and that this Tribunal has no jurisdiction to entertain a review of a decision of the Board where the patient concerned is no longer an involuntary patient. Nothing in the decision in Kracke leads to a different conclusion. It follows that the application should be dismissed.
Order 1. The application is dismissed. |