LS v Mental Health Review Board
[2013] WASCA 128
•24 MAY 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: LS -v- MENTAL HEALTH REVIEW BOARD [2013] WASCA 128
CORAM: BUSS JA
NEWNES JA
MURPHY JA
HEARD: 7 FEBRUARY 2013
DELIVERED : 24 MAY 2013
FILE NO/S: CACV 38 of 2012
BETWEEN: LS
Appellant
AND
MENTAL HEALTH REVIEW BOARD
RespondentTHE DEPARTMENT OF HEALTH
Intervener
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram :JUSTICE J A CHANEY (PRESIDENT)
Citation :LS and MENTAL HEALTH REVIEW BOARD [2012] WASAT 76
File No :MHA 5 of 2011
Catchwords:
Mental health - Involuntary patient order - Patient no longer an involuntary patient - Whether the Mental Health Review Board has the power to carry out a review of an involuntary patient order after the person has ceased to be an involuntary patient - Whether the State Administrative Tribunal has the power to carry out a review of an order of the Mental Health Review Board after the person has ceased to be an involuntary patient - Nature of review proceedings - De novo review - Tribunal's powers in review jurisdiction
Legislation:
Mental Health Act 1996 (WA), s 43, s 137, s 138, s 139, s 142, s 145, s 148A
State Administrative Tribunal Act 2004 (WA), s 13, s 18, s 27, s 29, s 44, s 47
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S A Walker
Respondent: No appearance
Intervener: Ms C J Thatcher & Ms M Elliot
Solicitors:
Appellant: Mental Health Law Centre (WA) Inc
Respondent: State Solicitor for Western Australia
Intervener: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Builders Licensing Board v Sperway Constructions (Syd) Pty Limited [1976] HCA 62; (1976) 135 CLR 616
Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Dunbar and Commissioner of Police [2007] WASAT 90; (2007) 51 SR (WA) 318
Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326
Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84
Harry v Mental Health Review Tribunal (1994) 33 NSWLR 315
Health Resorts of Australasia Pty Ltd and Western Australian Planning Commission [2007] WASAT 60; (2007) 51 SR (WA) 266
ITQ Pty Ltd v Hyde Park Management Ltd [2008] WASAT 66
Kracke v Mental Health Review Board [2009] VCAT 646; (2009) 29 VAR 1
LS and Mental Health Review Board [2012] WASAT 76
Middlecoat v Commissioner of Police [2012] WASC 309
Minister for Immigration and Ethnic Affairs v Pochi [1986] FCA 85; (1980) 44 FLR 41
MM v Mental Health Review Board (Unreported, WASC, Library No 990093; 4 March 1999)
Murray v Director General, Health & Community Services Victoria (Unreported, VSC, No 6060 of 1995, 23 June 1995)
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
Shire of Augusta-Margaret River v Gray [2005] WASCA 227; (2005) 143 LGERA 55
Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue [2011] HCA 41; (2011) 245 CLR 446
Wilson v Mental Health Review Board [2000] VSC 404
BUSS JA: On 10 June 2011, a psychiatrist made an order under s 43 of the Mental Health Act 1996 (WA) (the MH Act) to the effect that the appellant should be detained as an involuntary patient in an authorised hospital.
On 12 July 2011, the Mental Health Review Board (the Board) decided, pursuant to s 138 of the MH Act, that the psychiatrist's order of 10 June 2011 should continue.
On 22 July 2011, the appellant commenced proceedings in the State Administrative Tribunal (the Tribunal) for review of the Board's decision.
On 2 September 2011, the Board decided that the appellant was no longer an involuntary patient.
On 20 April 2012, the Tribunal constituted by its President, Chaney J, made an order dismissing the appellant's application for review on the ground that the Tribunal 'has no jurisdiction to entertain a review of a decision of the Board where the patient concerned is no longer an involuntary patient' [50].
The appellant has appealed against the Tribunal's order.
The background facts and circumstances, the statutory framework and the Tribunal's reasons for decision
The background facts and circumstances, the applicable statutory framework and material aspects of the Tribunal's reasons for decision are set out in the reasons of Murphy JA. I will not repeat them except to the extent necessary to explain my reasons.
The grounds of appeal
The appellant relies on three grounds of appeal.
Ground 1 alleges that the Tribunal made an error of law in concluding that its power to carry out a review of an order of the Board, following an application to the Tribunal under s 148A of the MH Act, 'falls away' when the person the subject of the review has ceased to be an involuntary patient.
Ground 2 alleges that the Tribunal made an error of law in concluding that the obligation of the Board to carry out reviews under s 138, s 139 and s 142 of the MH Act, and its power to do so, 'falls away' when the person concerned has ceased to be an involuntary patient.
Ground 3 alleges that the Tribunal made an error of law in that it treated the conditions stated in s 138(3) and s 139(2) of the MH Act 'as being functions and discretions of [the Board], to be exercised by the Tribunal pursuant to s 29 of the State Administrative Tribunal Act 2004 (WA)' (the SAT Act).
The merits of ground 1
Section 13 of the SAT Act specifies the sources of the Tribunal's jurisdiction. By s 13(1), a provision of an 'enabling Act' (as defined in s 3(1) of the SAT Act) that enables an application to be made to the Tribunal gives the Tribunal jurisdiction to deal with the matter concerned. By s 13(2), in addition to the jurisdiction that an enabling Act gives to deal with a matter, the Tribunal has any jurisdiction that the SAT Act gives in relation to that matter. By s 13(3), the Tribunal also has the jurisdiction given by s 44(3) and s 44(4) of the SAT Act.
In the present case, when the appellant commenced her proceedings in the Tribunal on 22 July 2011, for review of the Board's decision made on 12 July 2011, the appellant was entitled to make the application and the matter came within the Tribunal's review jurisdiction. This jurisdiction was conferred on the Tribunal by s 13(1) of the SAT Act read with s 148A(1) of the MH Act.
The Tribunal's function, when dealing with the matter raised in the appellant's application, was to review the Board's decision for the purpose of producing the correct and preferable decision at the time the Tribunal made its decision upon the review. See s 18, s 27 and s 29 of the SAT Act read with s 138 and s 145 of the MH Act.
That is, and more specifically, the Tribunal's function was to review the Board's decision that the appellant should continue to be detained as an involuntary patient and to decide whether the continued detention of the appellant as an involuntary patient was the correct and preferable order at the time the Tribunal made its decision.
However, in the present case, the appellant had ceased to be the subject of an involuntary patient order before the Tribunal carried out a review of the Board's decision. A prerequisite to the Tribunal's authority to undertake a review of the Board's decision (namely, the appellant's continuing status as an involuntary patient) was no longer satisfied. See also the reasons of Murphy JA at [131] ‑ [133] below.
In these circumstances, it was appropriate for the Tribunal to order that the appellant's application be dismissed. As at 28 April 2012, when that order was made, the proceedings were 'frivolous, vexatious, misconceived or lacking in substance', within s 47(1)(a) of the SAT Act, and the Tribunal's power under s 47(2) to order that the application be dismissed was enlivened.
Ground 1 fails.
The merits of ground 2
Subject to a qualification, I agree with Murphy JA, generally for the reasons he gives at [110] ‑ [128] below, that ground 2 is without merit.
The qualification is that it is unnecessary to express an opinion as to whether the Board, in any event, has power to determine the 'validity' of previous involuntary patient orders. I reserve my position on that question.
The merits of ground 3
I agree with Murphy JA, for the reasons he gives, that ground 3 fails.
Conclusion
I would dismiss the appeal.
NEWNES JA: I agree with Murphy JA, save that I would reserve for another occasion the question whether the Board has the power to determine the validity of previous involuntary patient orders.
MURPHY JA: This appeal raises the question of whether and to what extent the State Administrative Tribunal (the Tribunal) can exercise its review jurisdiction to 'review' a decision of the Mental Health Review Board (the Board) to the effect that a person should continue to be an involuntary patient for the purposes of the Mental Health Act 1996 (WA) (the MH Act), when, by the time the matter is heard by the Tribunal, the person has ceased to be an involuntary patient.
On 12 July 2011, the Board determined, pursuant to s 138 of the MH Act, that an earlier order of 10 June 2011, to the effect that the appellant should continue to be detained as an involuntary patient, should continue to have effect and that the person should remain an involuntary patient in an authorised hospital. The appellant applied to the Tribunal for a review of that decision.
On 20 April 2012, the Tribunal dismissed the appellant's application for review on the basis that the appellant, at the time of the Tribunal's hearing, was no longer an involuntary patient: LS and Mental Health Review Board [2012] WASAT 76 (SAT reasons).
On 17 May 2012, the appellant filed an appeal notice seeking leave to appeal the decision of the Tribunal. On 2 August 2012, Newnes JA ordered that the application for leave to appeal be referred to the hearing of the appeal. At the hearing it was accepted by both parties that the appellant was not required to obtain leave to appeal, having regard to s 149(1) of the MH Act, read with s 5 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
For the reasons which follow, I would dismiss the appeal.
Background
The background facts were not in dispute either at the level of the Tribunal, or in this appeal. The appellant has had a longstanding history of mental illness. Relevantly for present purposes, the facts are as follows.
On 11 May 2011, Dr L, in the appellant's absence, made a Community Treatment Order (CTO) in respect of the appellant. This order was subsequently confirmed by a second doctor.
On 13 May 2011, Dr L revoked the CTO pursuant to s 70(1) of the MH Act and ordered that the appellant be detained in an authorised hospital as an involuntary patient.
On 1 June 2011, the appellant made an application, pursuant to s 142 of the MH Act, for a review of whether she should continue to be an involuntary patient. This application was withdrawn on 21 June 2011.
On 10 June 2011, Dr L made an order that the appellant continue to be detained as an involuntary patient. (The period of the order is unknown, but s 49(4) of the MH Act provides that a psychiatrist may make such an order for up to six months.)
On 12 July 2011, the Board carried out a review of the order of 10 June 2011 pursuant to s 138(1) of the MH Act and determined that the order should continue to have effect. The Board noted that the appellant was expected to be discharged on a CTO in two weeks' time and that the Board was to reconvene, at the appellant's request, if she was not discharged on a CTO within two weeks or within a reasonable time. It is this decision which became the subject of review proceedings in the Tribunal, as noted below.
On 22 July 2011, the appellant made an application to the Tribunal, pursuant to s 148A of the MH Act, seeking a review of the Board's decision of 12 July 2011.
On 15 August 2011, Dr L made a CTO in respect of the appellant, which was subsequently confirmed by a second doctor, and the appellant was discharged from hospital to facilitate treatment in the community.
On 22 August 2011, the Tribunal made directions, inter alia, that the Board conduct an urgent review of the CTO made on 15 August 2011. The appellant also made a separate request to review the CTO made on 15 August 2011 pursuant to s 142 of the MH Act.
The Board conducted a hearing on 2 September 2011 to review the CTO of 15 August 2011. The Board considered, on the application of the appellant, a preliminary question of whether the appellant 'was currently an involuntary patient within the terms of the [MH] Act and whether the Board had jurisdiction to conduct a review of [the appellant's] status' (Board's reasons for decision, 6 September 2011 [10]). The Board decided that the CTO of 15 August 2011 had not been 'validly made' (Board's reasons [33]), as it did not contain sufficient particulars required by s 68 of the MH Act as construed by Templeman J in EO v Mental Health Review Board [2000] WASC 203. As a result, the Board said that the appellant was 'no longer' an involuntary patient within the terms of the MH Act, and accordingly, that the Board did not have jurisdiction to review the appellant's involuntary status. The Board then ordered that the appellant was no longer an involuntary patient. The efficacy of that order was not challenged in the Tribunal or in this appeal.
When the matter came before the Tribunal on 6 September 2011 to determine what should happen in relation to the appellant's application made on 22 July 2011, the appellant's solicitors sought to have the question of the validity of the orders made by the Board on 12 July 2011 determined. However, the Tribunal dismissed the application. The Tribunal's decision is referred to in greater detail below.
The Tribunal's decision
The application for review of the decision of the Board was heard by the Tribunal, constituted by Chaney J, on 12 December 2011. The issue for determination by the Tribunal was whether the Tribunal was required to, or if not whether it had jurisdiction to, and if so whether it should, hear and determine an application for review of a decision of the Board where the order the subject of the Board's decision is no longer operative (SAT reasons [3])
The same issue had been considered in LM and Mental Health Review Board [2006] WASAT 123 where the Tribunal, constituted by Eckert DCJ, concluded that the Tribunal did not have jurisdiction to review an order of the Board in such circumstances.
Chaney J looked at the powers of the Board to conduct a review of an involuntary patient's status. His Honour found that the Board did not have statutory authority to conduct a review pursuant to s 138 or s 139 where the person had ceased to be an involuntary patient at the time of the Board's review (SAT reasons [31]). The judge made, in effect, a similar finding in relation to reviews under s 142 as his Honour said that it was implicit from the questions which s 142(1) specifies that the patient concerned is subject to an involuntary order (SAT reasons [32]). His Honour then discussed the powers of the Tribunal when dealing with a matter in the exercise of its review decision and said [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.
Chaney J later in his reasons also said that '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' (SAT reasons [43]).
Chaney J found that s 148A of the MH Act did not confer on the Tribunal the 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. Rather, his Honour stated that s 148A enabled an aggrieved person to invoke the Tribunal's review jurisdiction, the exercise of which was 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 (SAT reasons [40]).
The Tribunal concluded that the decision in LM was correct and that the Tribunal had no jurisdiction to entertain a review of a decision of the Board where the patient is no longer an involuntary patient (SAT reasons [50]).
The Mental Health Act 1996
It is appropriate, at this point, to mention relevant provisions of the MH Act.
Preliminary
Section 5 of the MH Act provides that the objects of the Act include the following: 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; to ensure the proper protection of patients as well as the public; and to minimise the adverse effects of mental illness on family life.
Section 6(2) provides that any person that performs a function under the MH Act is to seek to ensure that the objects of the MH Act are achieved so far as it is relevant to the performance of those functions.
Involuntary patients
Part 3 of the MH Act deals with 'involuntary patients'.
An involuntary patient is defined in s 3 as being, in effect, a person who is 'for the time being' the subject of either:
(a)an order for detention in an authorised hospital as an involuntary patient (under s 43(2)(a), s 49(3)(a), s 50 or s 70(1)); or
(b)a community treatment order.
Community treatment order is defined in s 3 to mean an order of the kind provided for by div 3 of pt 3.
Section 26 sets out certain criteria relating to persons who should be involuntary patients. Section 26 provides, in effect, that a person should only be an involuntary patient if the following criteria are satisfied:
(a)the person has a mental illness requiring treatment;
(b)the treatment can be provided through detention in an authorised hospital or through a CTO, and is required to be provided in order to prevent or protect against certain specified harms;
(c)the person has refused treatment, or is unable to consent to the treatment due to the mental illness; and
(d)the treatment cannot be adequately provided in a way that would involve less restriction of the freedom of choice and movement of the person than would result from the person being an involuntary patient.
Referrals
Section 29 relevantly provides that a medical practitioner or authorised mental health practitioner (a referrer) may refer a person for examination by a psychiatrist in an authorised hospital if they suspect on reasonable grounds that the person should be made an involuntary patient.
By s 31(1), a referrer is not to refer a person under s 29 without having first personally examined the person for the purpose of forming an opinion as to whether it is suspected that the person should be made an involuntary patient. By s 32, such a referral must be made within 48 hours of the examination.
Section 33 provides that the referral must be in writing and must detail certain items which include certifying that, having regard to s 26, the referrer suspects that the person should be made an involuntary patient and specifying the facts on which this is based.
Examinations
Section 36 relevantly provides that a person who is referred under s 29 for examination by a psychiatrist in an authorised hospital is to be received into the hospital and may be detained for up to 24 hours from the time of reception, but is not to be received if more than seven days have elapsed since the referral was made.
By s 37(1), a psychiatrist who examines a person received into an authorised hospital under s 36 may:
(a)make an order under s 43; or
(b)order that the person's detention continue for further assessment of whether an order should be made under s 43; or
(c)decide not to make an order under the Act.
Involuntary patient orders
Section 43 relevantly provides:
43.Orders that mean a person is an involuntary patient
(1)This section applies where a psychiatrist examines a person who
(a)has been received into an authorised hospital under section 36 or 40 (whether or not section 37(1)(b) applies); or
…
(2)The psychiatrist may if he or she believes that, having regard to section 26, the person should be made an involuntary patient, either
(a)order in writing that the person
(i)be detained in an authorised hospital as an involuntary patient; and
(ii)be admitted for that purpose;
or
(b)make a community treatment order in respect of the person.
(3)Subsection (2) has effect subject to sections 65 and 66.
(4)An order in respect of a person referred for examination under section 29 can be made under this section only if it is made before the end of the 7th day after the referral was made.
Section 65 provides that a psychiatrist is not to make an order that a person be, or continue to be, detained as an involuntary patient without having considered whether the objects of the MH Act would be better achieved by making a CTO in respect of that person. Section 66 is referred to in [66] below.
Detention of involuntary patient
Section 45 provides that an order that a person be received into or admitted to an authorised hospital and detained there authorises, inter alia, the detention of the person at that hospital.
Section 48 provides that an order under s 43(2)(a) or s 70(1) authorises the detention of the person for a period ending on the day specified in the order which must be not later than the 28th day after the order is made. The order authorises the detention of the person until whichever is the first of: the end of the day specified in the order; it is ordered that the person is no longer an involuntary patient; or the person becomes the subject of a CTO.
Section 49 provides:
49.Examination of patient within s 48's detention period
(1)The treating psychiatrist is to ensure that an involuntary patient is again examined by a psychiatrist before the end of the period of detention specified under section 48.
(2)If on examining the person, and having regard to section 26, the psychiatrist does not believe that the person should continue to be an involuntary patient, the psychiatrist is to immediately order that the person is no longer an involuntary patient.
(3)If on examining the person, and having regard to section 26, the psychiatrist believes that the person should continue to be an involuntary patient, the psychiatrist may either
(a) order that the person continue to be detained as an involuntary patient for a further period ending on a day specified in the order; or
(b)make a community treatment order in respect of the person.
(4)A period specified under subsection (3)(a) cannot end more than 6 months after the order is made.
Section 50 provides:
50.Examinations within subsequent periods
(1)The treating psychiatrist is to ensure that an involuntary patient who is detained is again examined by a psychiatrist before the end of the period of detention specified under section 49(3)(a).
(2)The powers in section 49(2) and (3) are also exercisable on the occasion of that examination.
(3)Subsections (1) and (2) apply in respect of each successive period of detention so as to ensure that
(a)the patient is again examined before the end of each such successive period; and
(b)the powers in section 49(2) and (3) are exercisable on each occasion.
By s 51, an order under s 49(3) or s 50(2) that a person continue to be detained as an involuntary patient authorises the detention of the person in an authorised hospital until whichever is first of: the end of the day specified in the order; it is ordered that the person is no longer an involuntary patient; or the person becomes the subject of a CTO.
Section 52 provides that a psychiatrist may, at any time while a person is detained as an involuntary patient in an authorised hospital, order that the person is no longer an involuntary patient or make a CTO in respect of that person.
Treatment of involuntary patient in the community
Section 67 provides a general power for a psychiatrist to make a CTO in respect of a person if they have examined a person and believe that, having regard to s 26, the person should be made an involuntary patient. The power to make a CTO under s 67 is in addition to any other power under the Act to make a CTO. Section 66(1) provides for, relevantly, the requirements necessary for the making of a CTO. Section 66(1) provides:
(1)A psychiatrist is not to make a community treatment order in respect of a person unless satisfied that -
(a)treatment in the community would not be inconsistent with the objectives set out in section 26(1)(b); and
(b)suitable arrangements can be made for the care of the patient in the community; and
(c)a medical practitioner or mental health practitioner who is suitably qualified and willing to do so will be available to ensure that the patient receives the treatment outlined in the order; and
(d)a psychiatrist who is willing to do so will be available to supervise the carrying out of the order.
Section 68(1) sets out certain terms that the CTO must specify, such as who is responsible for supervising the carrying out of the CTO and the time that the order will lapse, which cannot be longer than three months after the order comes into effect.
By s 69, subject to certain specified exceptions, a CTO does not have effect unless it is confirmed by another psychiatrist (or medical practitioner authorised for such purposes) within 72 hours after it is made.
Section 70 provides:
70.Revoking community treatment orders
(1)The supervising psychiatrist may revoke a community treatment order with or without making an order that the person be admitted to, and detained in, an authorised hospital as an involuntary patient.
(2)An order may only be revoked
(a)if the patient has failed to do anything required to be done under the order or an order to attend under section 82; or
(b)if it no longer appears that the requirements of section 66 for the making of a community treatment order are satisfied.
Section 74 provides, in effect, that the supervising psychiatrist is the psychiatrist responsible for supervising the carrying out of the order, who may be the psychiatrist who made the order or another psychiatrist.
The supervising psychiatrist is to ensure that not more than one month passes without the patient having been examined by the supervising psychiatrist: s 75. If the supervising psychiatrist examines a person subject to a CTO and believes that, having regard to s 26, the person should not continue to be an involuntary patient, the psychiatrist is to order that the person is no longer an involuntary patient: s 78.
The supervising psychiatrist may, before the CTO lapses and provided it has not been previously extended, extend the period for which the order has effect by not more than three months: s 76(1). The patient is entitled to request a second opinion: s 76(3).
Mental Health Review Board
The Board is established by s 125 of the MH Act. Section 129 provides, relevantly, that the Board, when dealing with a matter, is to be constituted by three members which are to include a lawyer, a psychiatrist (or a medical practitioner who is not a psychiatrist if certain conditions are satisfied), and a person who is neither a lawyer nor a medical practitioner.
Schedule 2 of the MH Act sets out provisions concerning proceedings before the Board and is given effect by s 135.
Division 2 of pt 6 of the MH Act relates to reviews and enquiries. In broad terms, the Board must conduct a review of an involuntary patient order:
(a)within the first eight weeks of the initial order where the person has been continuously an involuntary patient since the initial order (s 138);
(b)within every six month period thereafter where the patient has been continuously an involuntary patient since the last review (s 139); and
(c)when an application for review is received (s 142).
The Board can also conduct reviews on its own motion (s 144).
It is useful to set out div 2 of pt 6 in full:
Division 2 - reviews and enquiries
137.Matters to be considered upon review
In making a determination upon a review, the Board is to have regard primarily to the psychiatric condition of the person concerned and is to consider the medical and psychiatric history and the social circumstances of the person.
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
(a)a review under this section was previously carried out in respect of the person; and
(b)the person has been continuously an involuntary patient since the previous review.
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 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.
140.Determining if person has been continuously an involuntary patient
In determining for the purposes of section 138 or 139 whether a person has been continuously an involuntary patient, if a person becomes the subject of an order of the kind mentioned in section 138(1) within 7 days after ceasing to be the subject of an earlier such order the second order is to be considered to have immediately followed the first.
141.Time of review may be extended in certain cases
(1)If, within 28 days before the time by which the Board is required by section 138 or 139 to carry out a review, the Board has made a relevant determination, the Board may extend the time by which the review is required by that section to be carried out until 28 days after the determination was made.
(2)In subsection (1)
relevant determination means a determination the making of which involved a consideration of substantially the same issues as would be raised by the review.
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.
143.Board may suspend order etc. pending review
Where an application is made for a review or the Board carries out a review of its own motion the Board may
(a)suspend the operation of any relevant order; or
(b)restrain the doing of anything, or anything further, under any relevant order,
until the application has been determined, or the review concluded.
144.Board may review case of involuntary patient at any time
The Board may, at any time, carry out a review of the case of any involuntary patient if it considers it appropriate to do so because of any report or complaint it receives or for any other reason.
145.Powers on carrying out review
(1)Subject to this Act, the Board may determine any matter coming before it for consideration and may make such order in respect of a matter as it thinks appropriate.
(2)Without limiting subsection (1) the Board may
(a)order that the person is no longer an involuntary patient; or
(b)order that a community treatment order be made in respect of the person, giving such directions, if any, as it thinks fit in relation to the terms of the order; or
(c)if the person is the subject of a community treatment order, vary the order, and give such directions in relation to the order as it thinks fit.
146.Complaints to Board, Board to enquire into
(1)The Board is to enquire into any complaint made to it concerning
(a)any failure to recognize the rights given by this Act to an involuntary patient; or
(b)any other matter to do with the administration of this Act.
(2)The Board may, either generally or as otherwise provided in the delegation, delegate its functions under subsection (1) to a member of the Board.
(3)Subsection (2) does not limit the power of the Board to delegate its functions under subsection (1) to the Registrar.
147.Enquiries directed by Minister
The Board is to enquire into any matter to do with the administration of this Act as directed by the Minister.
148.Reports to Minister
The Board is to report to the Minister on the results of an enquiry that it is directed by the Minister to carry out, and may report to the Minister on any other matter that it thinks should be considered by the Minister.
Applications to and review by the State Administrative Tribunal
MH Act
Division 2A of pt 6 of the MH Act deals with applications to the Tribunal for review of decisions by the Board.
Section 148A of the MH Act provides:
148A.Applying for review by SAT
(1)A person in respect of whom the Board makes a decision or order who is dissatisfied with the decision or order may, without payment of any fee, apply to the State Administrative Tribunal for a review of the decision or order.
(2)Any other person who, in the opinion of the State Administrative Tribunal, has a sufficient interest in the matter may, with the leave of the Tribunal and without payment of any fee, appeal to the Tribunal against the decision or order.
Section 148B relevantly provides that 'for the purpose of exercising jurisdiction conferred under section 148A', the Tribunal is to include a legally qualified member of the Tribunal, a psychiatrist (or a medical practitioner who is not a psychiatrist if certain conditions are satisfied), and a person who is neither legally qualified nor a medical practitioner.
The State Administrative Tribunal Act 2004 (WA)
Section 3(1) of the SAT Act defines 'enabling Act' to mean another Act, or a portion of another Act, under which jurisdiction is conferred on the Tribunal.
The Tribunal has the jurisdiction described in pt 3 of the SAT Act: s 8. Part 3 of the SAT Act includes s 13, s 14, s 27 and s 29 of the SAT Act.
Section 13 provides:
13.Sources of jurisdiction
(1)A provision of an enabling Act that enables an application to be made to the Tribunal gives the Tribunal jurisdiction to deal with the matter concerned.
(2)In addition to the jurisdiction that an enabling Act gives to deal with a matter, the Tribunal has any jurisdiction that this Act gives in relation to that matter.
(3)The Tribunal also has the jurisdiction given by section 44(3) and (4).
The Tribunal has two kinds of jurisdiction: 'original' jurisdiction and 'review' jurisdiction: s 14.
Division 2 of pt 3 deals with the Tribunal's original jurisdiction. By s 15, a matter comes within the Tribunal's original jurisdiction if an enabling Act gives the Tribunal jurisdiction to deal with a matter that does not involve a 'review' of a decision.
Division 3 of pt 3 is concerned with the Tribunal's 'review' jurisdiction. Section 17 provides:
17.What comes within review jurisdiction
(1)If the matter that an enabling Act gives the Tribunal jurisdiction to deal with is a matter that expressly or necessarily involves a review of a decision, the matter comes within the Tribunal's review jurisdiction.
(2)A matter referred to the Tribunal under section 44(3) comes within the Tribunal's review jurisdiction.
(3)Where subsection (1) or (2) applies the decision is a reviewable decision for the purposes of this Act.
Section 18 provides:
18.Exercising review jurisdiction
(1)In exercising its review jurisdiction the Tribunal is to deal with a matter in accordance with this Act and the enabling Act.
(2)The enabling Act may modify the operation of this Act in relation to a matter that comes within the Tribunal's review jurisdiction.
Section 27 provides:
27.Nature of review proceedings
(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.
Section 29 of the SAT Act, which outlines the Tribunal's powers when dealing with a matter in the exercise of its review jurisdiction, provides:
29.Tribunal's powers in review jurisdiction
(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.
(2)Subsection (1) does not limit the powers given by this Act or the enabling Act to the Tribunal.
(3)The Tribunal may
(a)affirm the decision that is being reviewed; or
(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.
(4)The fact that a decision is made on reconsideration as required under subsection (3)(c)(ii), does not prevent the decision from being open to review by the Tribunal.
(5)The decision‑maker's decision as affirmed or varied by the Tribunal or a decision that the Tribunal substitutes for the decision‑maker's decision
(a)is to be regarded as, and given effect as, a decision of the decision‑maker; and
(b)unless the enabling Act states otherwise or the Tribunal orders otherwise, is to be regarded as having effect, or having had effect, from the time when the decision reviewed would have, or would have had, effect.
(6)Without limiting subsection (5)(a), the decision‑maker has power to do anything necessary to implement the Tribunal's decision.
(7)Despite subsection (5)(a), the decision as affirmed, varied, or substituted is not again open to review by the Tribunal as a decision of the decision‑maker.
(8)Subsection (5)(a) does not affect an appeal under Part 5 against the Tribunal's decision.
(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.
Section 31 provides that the Tribunal may at any stage invite the original decision‑maker to reconsider the decision.
Observations on the Tribunal's review jurisdiction
The term 'review' takes its meaning from the context in which it appears: Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue [2011] HCA 41; (2011) 245 CLR 446 [5].
Section 27(1) of the SAT Act refers to a hearing 'de novo'. A hearing de novo 'involves the exercise of the original jurisdiction and the "informant or complainant starts again and has to make out his case and call his witnesses"': Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84, 124; Builders Licensing Board v Sperway Constructions (Syd) Pty Limited [1976] HCA 62; (1976) 135 CLR 616, 620. It means that a matter is heard afresh and a decision is given on the material presented at the hearing. The body undertaking the review is required to exercise its powers whether or not there was an error by the original decision‑maker: Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [13] ‑ [14]; Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [22] ‑ [23]. By the nature of the review, the Tribunal is commonly said to be placed 'in the shoes of' the original decision‑maker: Minister for Immigration and Ethnic Affairs v Pochi[1986] FCA 85; (1980) 44 FLR 41, 46; Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 [40]. It is also commonly referred to as a 'merits review': Shire of Augusta-Margaret River v Gray [2005] WASCA 227; (2005) 143 LGERA 55 [72].
The reference to 'correct and preferable' in s 27(2) recognises that in some cases, particularly where an exercise of discretion is involved, more than one decision may correctly be made, and the role of the Tribunal in such a case is to make the decision that is preferable: Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326 [29]; Shi v Migration Agents Registration Authority [140].
By s 27(2), the correct and preferable decision is to be made by the Tribunal 'at the time of the decision upon the review'. This has been interpreted as referring to the time of the Tribunal's decision: Health Resorts of Australasia Pty Ltd and Western Australian Planning Commission [2007] WASAT 60; (2007) 51 SR (WA) 266 [24] (Chaney J). The appellant did not contend otherwise in this appeal, and no reason was advanced to doubt the correctness of that conclusion. I should add that in my view s 29(5)(b) of the SAT Act does not compel a different conclusion. In Shi v Migration Agents Registration Authority, the legislation under consideration, the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) contained a provision, s 43(6), which was similar to s 29(5)(b) of the SAT Act. The AAT Act did not contain a provision in terms of s 27(2) of the SAT Act. Nevertheless, the court held that the relevant tribunal was required to give attention to the state of affairs existing at the date of its decision, and was not confined to the circumstances existing at the date of the decision under review.
Section 29(2) of the SAT Act allows for the possibility that the powers of the Tribunal in the exercise of its jurisdiction may be broader than those of the original decision-maker. Whether they are or not depends upon there being some other source of power either in the SAT Act or in the enabling Act: Middlecoat v Commissioner of Police [2012] WASC 309 [32]. Subject to that matter, the task of the Tribunal is, by its nature, to 'do over again' what the original decision‑maker did: cf Shi v Migration Agents Registration Authority [100].
The Tribunal's powers beyond those of the original decision‑maker include, for example, the power to remit the matter to the original decision‑maker with directions (s 29(3) of the SAT Act); the power to strike out the proceeding (s 47 and s 50 of the SAT Act); and the power to 'make declarations concerning any matter in a proceeding instead of any orders it could make, or in addition to any orders it makes, in the proceeding' (s 91(1) of the SAT Act).
The power to make a declaration in s 91(1) depends upon the Tribunal having jurisdiction to deal with the matter and having the power to make orders in relation to it: ITQ Pty Ltd v Hyde Park Management Ltd [2008] WASAT 66 [35] [36] (Chaney J); Kracke v Mental Health Review Board [2009] VCAT 646; (2009) 29 VAR 1 [807] (Bell J).
Nothing in s 27 or s 29 of the SAT Act is to be read as requiring or enabling the Tribunal to deal with a matter that is 'different in essence' from that which was before the original decision‑maker: s 29(9).
Further, as Chaney J observed in Dunbar and Commissioner of Police [2007] WASAT 90; (2007) 51 SR (WA) 318 [19]:
[N]othing in s 29, or any other provision of the SAT Act, places the Tribunal in the shoes of the decision‑maker for any purpose other than dealing with the decision under review. It is not open to the Tribunal to exercise some other discretion vested in the decision‑maker where a decision in the exercise of that discretion is not the subject of the review.
This passage was cited with approval by Hall J in Middlecoat v Commissioner of Police [35].
It is apparent from the foregoing that the scheme for review of a decision of the Board under the MH Act is materially different from the procedures which applied prior to the amendments to the MH Act, effected by the introduction of the SAT Act. Previously, s 149 of the MH Act provided for an 'appeal' to the Supreme Court. Section 150 required the grounds 'to be clearly stated' and that the grounds may be that the Board made errors of fact, errors of law, errors of fact and law, that the Board acted beyond jurisdiction or 'any other sufficient reason'. By s 154, the court had the power to: affirm, vary or quash the decision or order appealed against, or substitute, and make in addition, any other decision or order that should have been made in the first instance; remit the subject matter of the appeal to the Board for further consideration or rehearing; and to make any further or other order, as to costs or otherwise, as it thought fit. Although there was no express power to receive additional evidence, in EO v Mental Health Review Board, Templeman J approached an appeal under these provisions as being 'an appeal in the nature of a rehearing, based on the original materials and on any additional material which may be admitted' [21] (emphasis added). There appears to have been no debate in that case as to whether the absence of a provision concerning the reception of further evidence indicated an appeal in the strict sense rather than an appeal by way of rehearing: cf Allesch v Maunz [22]. In any event, as noted earlier, an appeal by way of rehearing does not call for a fresh hearing as does a hearing de novo; the appeal court does not hear the witnesses again.
Grounds of appeal
The appellant relies on the following three grounds of appeal:
1)The Tribunal made an error of law in concluding that the requirement imposed on it that it carry out a review of an order of the Board following an application to it under s 148A of the MH Act, and its power to do so, fall away when the person the subject of the review has ceased to be an involuntary patient, in particular by failing to have regard to the differences between the powers of the Tribunal and those of the Board.
2)The Tribunal made an error of law in concluding that the requirement that the Board carry out reviews under s 138, s 139 and s 142 of the MH Act, and its power to do so, fall away in every case when the person the subject of the review has ceased to be an involuntary patient.
3)In considering the requirement imposed on it that it carry out a review of an order of the Board following an application to it under s 148A of the MH Act, and its power to do so, the Tribunal made an error of law, in that it treated the conditions stated by s 138(3) and s 139(2) of that Act as being functions and discretions of the Board, to be exercised by the Tribunal pursuant to s 29 of the SAT Act.
Ground 2 raises for consideration the nature and scope of the Board's powers of review under s 138 of the MH Act (and under s 139 and s 142). It is convenient to address that question first, before dealing with grounds 1 and 3, which relate to the Tribunal's powers to review decisions of the Board under, relevantly, s 138.
Ground 2
The Tribunal held, relevantly, that the Board did not have the statutory authority to conduct a review, pursuant to s 138 of the MH Act, where the person was not an involuntary patient at the time of the review. In this respect, the Tribunal said (SAT reasons [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 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).
The Tribunal noted that s 142 does not expressly contain a provision to the same effect as s 138(3) or s 139(2) but, nevertheless continued (SAT reasons [32]):
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.
His Honour in that passage evidently uses the expression 'involuntary order' to comprehend an order under either limb of the definition of 'involuntary patient' in s 3 of the MH Act, ie, an order for the detention of a person in an authorised hospital, or a CTO. In the following reasons I will adopt the same general approach, however, I will refer to an order under either limb of the definition of 'involuntary patient' as an 'involuntary patient order'.
The appellant contended that the Tribunal erred in concluding that the Board's power to review under s 138 (and s 139 and s 142) only applies where the person is the subject of an involuntary patient order at the time of the review. The appellant said that although the Board has no obligation to carry out a review under s 138 or s 139 where the person is not the subject of an involuntary patient order at the time of the Board's hearing, it nevertheless retains the discretion or power to do so.
The appellant raised four principal arguments. First, the appellant submitted that the Board had the power under s 144 to conduct a review of an involuntary patient order, notwithstanding that the person had ceased to be an involuntary patient at the time of the review, and that the Tribunal had overlooked this in construing the Board's powers under s 138, s 139 and s 142. Secondly, the appellant contended that the Board has the power under s 145(1) to determine the validity of an earlier involuntary patient order, and the power subsists even if the person has ceased to be an involuntary patient.
Thirdly, the appellant submitted that a person may seek a review under s 142 of a number of matters that 'could be in issue' where the patient is no longer an involuntary patient at the time of the Board's hearing. The appellant did not, in written or oral submissions, suggest any particular matters that could remain 'in issue' where the patient was no longer an involuntary patient, but was presumably referring to the words 'should have been' in s 142(1)(c) and s 142(1)(d).
The intervener said that the words 'should have been' in s 142(1)(c) and s 142(1)(d), when read in the context of the MH Act and the scheme for reviews as a whole, 'refer to a decision made in the past not for the purpose of considering the abstract question of whether or not that decision was correct, but for the practical, forward‑looking purpose of considering where the person should be detained in the future or who should have future responsibility for the patient'. Accordingly, the intervener submitted, the issue remained one that relates to a person who continues to be an involuntary patient at the time of the Board's hearing.
Fourthly the appellant, by way of emphasis to her first three arguments, referred to the decision of Templeman J in EO v Mental Health Review Board [91] in which his Honour applied an earlier decision of Scott J to the effect that the provisions of the MH Act should be strictly construed and complied with insofar as they interfere with the liberty of the subject. The decision of Scott J is MM v Mental Health Review Board (Unreported, WASC, Library No 990093; 4 March 1999).
Disposition
The Tribunal was dealing with an application to review a decision made by the Board under s 138 of the MH Act. The Tribunal found, relevantly in effect, that the Board's power to carry out a review under s 138 was dependent upon the person concerned being an involuntary patient at that time. That conclusion is correct for the reasons indicated below. Insofar as ground 2 alleges error in that conclusion, ground 2 should be dismissed.
Insofar as ground 2 challenges the Tribunal's observations with respect to s 139 and s 142 of the MH Act, it does no more, in substance, than contest certain aspects of the Tribunal's reasoning upon which the Tribunal drew in concluding, relevantly, that the Board's power to review under s 138 was dependent upon the person being an involuntary patient at the time of the review. As I have indicated, the Board's conclusion with respect to s 138 is correct and, accordingly, it is strictly unnecessary to deal with the question of alleged errors in the Tribunal's reasoning in relation to s 139 and s 142. Nevertheless, as the points were argued, I will express my views on them.
I commence with a consideration of the Board's powers to review under s 138.
The task of the Board under s 138 of the MH Act, after the making of the 'initial order', is to carry out a review of whether or not the involuntary patient order 'should continue to have effect': s 138(1). The words 'should continue' indicate that the purpose of the review is to make a decision about an involuntary patient's future. It is forward‑looking. The reference to the word 'effect' in s 138(1) emphasises the practical nature and intended outcome of the review. Section 26 prescribes the criteria to be applied in determining whether the person should remain an involuntary patient.
The Board, in undertaking its task under s 138, is 'to have regard primarily to the psychiatric condition of the person concerned and is to consider the medical and psychiatric history and the social circumstances of the person': s 137 of the MH Act. The reference to 'medical and psychiatric history', must mean the person's medical and psychiatric history up to that point in time. Section 137 indicates that the decision‑maker under s 138 must primarily consider the person's current psychiatric condition, in light of their medical and psychiatric history, and have regard to their social circumstances, in order to make a determination about their future. In doing so, the Board must seek to ensure that the objects of the MH Act are achieved, including that a mentally ill person receives the best care and treatment with the least interference with his or her rights and dignity; that the mentally ill person and the public are properly protected; and that the adverse effects of mental illness on family life are minimised: s 5 and s 6(2) of the MH Act.
The Board is to have regard to the matters in s 137, not for the purpose of determining the validity of any orders previously made, but for the practical purpose of enabling the Board properly to appreciate the person's psychiatric condition and circumstances, in order to determine whether the person should continue to be the subject of the restraints imposed by the Act upon an involuntary patient.
Section 138(3) provides, in effect, that a review under s 138(1) only applies if the person 'has been continuously an involuntary patient since the initial order was made'. This confirms that at the time of the s 138 review, the person must be an involuntary patient.
Similar observations apply to a s 139 review.
Section 138(2), like s 139(1), is, in effect, made subject to s 141(1). Section 141 provides, in effect, that where the Board has made a 'relevant determination', involving a consideration of substantially the same issues as would be raised by the review, within 28 days before the time in which the Board was required by s 138 and s 139 to carry out a review, the Board may extend the time for the review required by those sections by up to 28 days after the relevant determination was made. The evident purpose of this provision is not only to ensure that the Board is obliged to conduct timely reviews as to the continuing effect of an involuntary patient order, but also to ensure that the Board's limited resources are not applied unnecessarily in replicating tasks which, in substance, have relatively recently been undertaken by the Board.
For these reasons, the Tribunal did not err in finding that the Board did not have the power to carry out a review under s 138 where the person concerned had ceased to be an involuntary patient at the time of the review. That was the relevant finding for the purposes of the disposition of this ground of appeal. I note that a similar result, in relation to broadly analogous legislation, was reached in Wilson v Mental Health Review Board [2000] VSC 404 [66] (O'Bryan J).
None of the appellant's arguments with respect to s 142, s 144 or s 145 of the MH Act derogate from that conclusion. I will address those arguments in the order in which they were advanced.
As to the appellant's first argument, s 144 concerns a review of an 'involuntary patient' at the instigation of the Board. An 'involuntary patient' is a person 'who is for the time being' the subject of an involuntary patient order: definition of 'involuntary patient' in s 3 of the MH Act. Section 144 does not define or limit the scope or operation of s 138 of the MH Act, and in particular the operation of s 138(3). Nor does it define or limit the scope or operation of s 139 or s 142. In any event, insofar as s 144 confers on the Board a power 'at any time' to review the case of an 'involuntary patient', and the involuntary patient is a person 'who is for the time being' the subject of an involuntary patient order, the appellant's reliance on s 144 would seem contrary to the appellant's underlying proposition that it is unnecessary for a person to be an involuntary patient at the time of the review.
The appellant's second argument does not assist her. The Board's power in s 145(1) is made 'subject to [the MH] Act' and is conferred to 'determine any matter coming before it for consideration'. Section 145(1) does not give the Board a freestanding power to determine any matter beyond that for which provision is otherwise made in the MH Act. It does not, on its own, give the Board the power to determine that a previous involuntary patient order was 'invalid'. Moreover, even if the Board could review the 'validity' of an order for the purposes of a s 138 review, it could only do so for the purpose of determining whether to 'continue' the order. No such purpose would be served if the order had ceased to have effect in any event by the time of the review.
I should add, however, that for the reasons indicated below, my preliminary view is that it is doubtful that the Board, in any event, has the power to determine the 'validity' of previous involuntary patient orders. Such a determination would have a judicial character. A person is an 'involuntary patient' as defined in s 3 if they are the subject of an involuntary patient order. The Board must find that such an order has been made in fact, before deciding whether or not to 'continue' it under s 138(1) or s 139(1). It seems to me that it is the fact that an order has been made against the person, and not the Board's view as to its 'validity', which is relevant. That is not to say, however, that the Board could not review the cogency of the material upon which a prior involuntary patient order was made as part of its own assessment of the psychiatric history of the patient in accordance with s 137. (My view is preliminary because the question of whether the Board has any power to review the 'validity' of previous involuntary patient orders only emerged orally at the hearing in the course of the appellant's submissions. Neither party provided written submissions on the topic and it was not properly debated before this court.)
In relation to the appellant's third point, I would accept, in substance, the intervener's submission with respect to s 142 in [108] above.
In each of subsections (a) ‑ (e) of s 142(1) of the MH Act, the person the intended object of the review is an involuntary patient (including, in subsection (d), a patient the subject of a CTO). The application for review may be made by the persons designated in s 142(2). They are the 'patient concerned', an 'official visitor', and a person who, to the satisfaction of the Board, has a 'genuine concern for the patient'. The 'patient concerned' and the 'patient' for whom another party has a 'genuine concern' must, in the context of s 142(1), mean the involuntary patient the intended object of the review. The reference to an application by an 'official visitor' accords with the power of an 'official visitor' to make an application in respect of an 'affected person' - see s 3 definition of 'official visitor' and s 188(g) of the MH Act. An 'affected person' includes, relevantly, an involuntary patient: s 175 of the MH Act.
Section 143 of the MH Act also tends to support the conclusion in [119] above. Section 143 provides, inter alia, that where an application is made for a s 142 review, the Board has the power to suspend the operation of any 'relevant order', or restrain the doing of anything under any 'relevant order', until the application has been determined or the review concluded. Although the term 'relevant order' is not defined (cf 'relevant determination' in s 141), when given its ordinary meaning in the context in which it appears, it could only refer to the order that is operative on the person's involuntary status at the relevant time.
Further, the absence of a provision such as s 138(3) or s 139(2) in s 142 is explicable when regard is had to the purpose of s 142. The purpose of s 142 is to facilitate a review by an involuntary patient at any time (subject to the exception mentioned below), independent of the mandatory reviews under s 138 and s 139, and independent of the Board's own power to instigate a review under s 144. Section 138 and s 139 (read in conjunction with s 140) deal with the timing of mandatory reviews, subject to s 141. A s 142 review, similar to a s 144 review by the Board, can be commenced 'at any time' (s 142(3)), save that in the case of s 142, s 142(3) operates, somewhat like s 141, to avoid unnecessary duplication where substantially the same issue has already been determined in the previous 28 days.
As to the appellant's fourth argument, accepting, for present purposes, the correctness of the approach to the MH Act referred to in MM and EO, a strict reading of the review provisions does not produce any different result in their construction. Further, the issue in this case was not the application of provisions leading to the involuntary detention of the appellant, but the powers of the Tribunal to review a decision of the Board after the appellant had ceased to be an involuntary patient.
I would dismiss ground 2.
I would add here, parenthetically, that the approach to construction in MM and EO was similar to the approach adopted by Kirby P and Clarke JA in Harry v Mental Health Review Tribunal (1994) 33 NSWLR 315, 323, 341. Compare the observations of Eames J in Murray v Director General, Health & Community Services Victoria (Unreported, VSC, No 6060 of 1995, 23 June 1995) who noted that the legislation also had a 'beneficial and protective character' (36). To similar effect were the observations of Mahoney JA in Harry v Mental Health Review Tribunal, 335.
Ground 1
The appellant contends, in effect, that once the appellant had invoked the jurisdiction of the Tribunal by an application under s 148A of the MH Act, the Tribunal should have exercised its jurisdiction and determined whether, on the materials before the Tribunal, the Board's decision on 12 July 2011 to continue the involuntary patient order, was the correct and preferable decision at that time. The appellant contends that the Tribunal erred in law by, in effect, conflating the jurisdiction and powers of the Tribunal with the jurisdiction and powers of the Board. The appellant also relied on the observations of Templeman J in EO to the effect that a person 'is entitled to know whether he has been denied any rights to which he is entitled under the Mental Health Act' [19].
The Tribunal's powers under the SAT Act (including s 29) may only be used, relevantly, in connection with the exercise of the Tribunal's review jurisdiction. The Tribunal's task was to determine whether the Board's decision of 12 July 2011, for the appellant to continue to be the subject of an involuntary patient order, was the correct and preferable decision to make at the time of the Tribunal's review. Thus, the nature of the Tribunal's task in the exercise of its review jurisdiction was to determine whether, as at the date of the Tribunal's review (or more precisely at the date of its determination), the involuntary patient order should continue to have effect. The previous appeal procedure in the context of which Templeman J made the decision in EO sheds no light, in my view, on the statutory task of the Tribunal in dealing with an application under s 148A of the MH Act
As it was accepted that by 6 September 2011, the appellant had ceased to be the subject of an involuntary patient order, the Tribunal was unable to carry out its statutory task of review.
That does not mean, however, that the Tribunal lacked jurisdiction to deal with the appellant's application dated 22 July 2011. Nor does it mean that the Tribunal's jurisdiction 'falls away'. Rather, given the nature of its review jurisdiction, the proper power available to be exercised within its jurisdiction was the power to dismiss the proceeding under s 47(1)(a) of the SAT Act on the basis that it was 'lacking in substance' or, possibly, to strike out the proceeding under s 50(1) if the Tribunal considered that the matter was more appropriately dealt with by way of judicial review in the Supreme Court: s 50(1) read with s 19(4) of the SAT Act.
If and to the extent that the Tribunal suggested that it lacked jurisdiction to deal with the application, I would respectfully differ. Nevertheless any error in that regard is immaterial, because in my view the Tribunal, in the exercise of its jurisdiction, properly exercised a power, which was available to it under s 47(1)(a), to dismiss the proceedings.
For these reasons I would dismiss ground 1.
Ground 3
The appellant, in effect, submits that the Board's obligations to carry out certain reviews pursuant to s 138 and s 139 of the MH Act are not of themselves 'functions' or 'discretions', for the purposes of s 29(1) of the SAT Act, but rather, only 'give rise' to functions and powers which are mandatory and not discretionary. The appellant says that, accordingly, the Tribunal is not limited in the same way as the Board is when carrying out a review following an application under s 148A of the MH Act. In support of this ground, the appellant appears to rely on the definition of 'function' in Macquarie Dictionary (5th ed) which provides that a function is '[t]he kind of action or activity proper to a person, thing or institution'.
However, 'function' is defined in s 5 of the Interpretation Act 1984 (WA) as including 'powers, duties, responsibilities, authorities, and jurisdictions'. The Board's obligations to carry out reviews pursuant to s 138 and s 139 are clearly 'functions' within the Interpretation Act definition of a 'function'. Moreover, the references to 'function' or 'functions' in provisions such as s 6, s 131, s 213(2) and s 215(1)(b) of the MH Act are plainly intended to include reviews under s 138 and s 139 of the MH Act.
Reviews under s 138 and s 139 are thereby 'functions' of the Board under the MH Act and 'functions' for the purposes of s 29(1) of the SAT Act.
The appellant's third ground of appeal should be dismissed.
Conclusion
The appeal should be dismissed.
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