M and MENTAL HEALTH REVIEW BOARD
[2006] WASAT 137
•30 MAY 2006
M and MENTAL HEALTH REVIEW BOARD [2006] WASAT 137
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 137 | |
| MENTAL HEALTH ACT 1996 (WA) | |||
| Case No: | MHA:2/2006 | 24 MAY 2006 | |
| Coram: | MS J TOOHEY (SENIOR MEMBER) MR S JONGENELIS (SENIOR SESSIONAL MEMBER) PROF M KAMIEN (SESSIONAL MEMBER) | 30/05/06 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | The decision under review is set aside and in its place is substituted a decision that the applicant is not an involuntary patient under the Mental Health Act 1996 (WA) | ||
| B | |||
| PDF Version |
| Parties: | M MENTAL HEALTH REVIEW BOARD |
Catchwords: | Involuntary patient under a Community Treatment Order – Decision of the Mental Health Review Board that the Community Treatment Order should continue – Review of that decision – Tribunal satisfied that a less restrictive form of treatment available than would result from the applicant being an involuntary patient – Decision under review set aside |
Legislation: | Mental Health Act 1996 (WA), s 26, s 26(1) |
Case References: | Nil Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : MENTAL HEALTH ACT 1996 (WA) CITATION : M and MENTAL HEALTH REVIEW BOARD [2006] WASAT 137 MEMBER : MS J TOOHEY (SENIOR MEMBER)
- MR S JONGENELIS (SENIOR SESSIONAL MEMBER)
PROF M KAMIEN (SESSIONAL MEMBER)
- Applicant
AND
MENTAL HEALTH REVIEW BOARD
Respondent
Catchwords:
Involuntary patient under a Community Treatment Order – Decision of the Mental Health Review Board that the Community Treatment Order should continue – Review of that decision – Tribunal satisfied that a less restrictive form of treatment available than would result from the applicant being an involuntary patient – Decision under review set aside
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Legislation:
Mental Health Act 1996 (WA), s 26, s 26(1)
Result:
The decision under review is set aside and in its place is substituted a decision that the applicant is not an involuntary patient under the Mental Health Act 1996 (WA)
Category: B
Representation:
Counsel:
Applicant : Selfrepresented
Respondent : N/A
Solicitors:
Applicant : Self-represented
Respondent : N/A
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
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Summary of Tribunal's decision
1 The applicant applied for review of a decision of the Mental Health Review Board that she should continue to be an involuntary patient under the Mental Health Act 1996 (WA) and subject to a community treatment order.
2 The applicant's treating psychiatrist and general practitioner agreed that she has a mental illness. The applicant disputed their diagnosis and did not want to take the medication prescribed by her treating psychiatrist. However, she was prepared to accept the medication voluntarily if her general practitioner recommended she take it. Her general practitioner was of the opinion that she was in need of the medication and that she would comply with a voluntary agreement with him.
3 The Tribunal was satisfied that the arrangement proposed by the applicant and her general practitioner constituted a way of providing her with treatment that was less restrictive of her freedom than would result from her being an involuntary patient. That being so, it found that s 26(1) of the Mental Health Act 1996 (WA) did not apply to the applicant and set aside the decision under review.
Background
4 This is an application by M for review of a decision that she should continue to be an involuntary patient under the Mental Health Act 1996 (WA) (the Act) and subject to a community treatment order (CTO).
5 M was discharged from a psychiatric hospital on 31 October 2005 subject to a CTO which requires her to take anti-psychotic depot medication. At M's request, on 18 November 2005, the Mental Health Review Board (MHRB) reviewed the CTO and decided it should continue. On 20 February 2006, M again requested a review of the order. On 13 March 2006, following a hearing attended by M and her treating psychiatrist, the MHRB decided that the CTO should continue. M seeks review by the Tribunal of that decision.
6 The Act sets out the circumstances in which a person may be an involuntary patient. A person can only be made an involuntary patient if all of the criteria in s 26(1) apply to them.
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7 For the reasons set out below, the Tribunal finds that not all of the criteria in s 26(1) apply to M, and that the decision under review should be set aside.
The criteria for being an involuntary patient
8 Section 26 of the Act provides:
"(1) A person should be an involuntary patient only if —
(a) the person has a mental illness requiring treatment;
(b) the treatment can be provided through detention in an authorised hospital or through a community treatment order and is required to be so provided in order —
(i) to protect the health or safety of that person or any other person;
(ii) to protect the person from self-inflicted harm of a kind described in subsection (2); or
(iii) to prevent the person doing serious damage to any property;
(c) the person has refused or, due to the nature of the mental illness, is unable to consent to the treatment; 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."
10 M was diagnosed with schizophrenia in 1994 when she was first admitted to Graylands Hospital. She was admitted again two months later, when a diagnosis was made of bi-polar affective disorder, and she
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- was admitted for a third time shortly after that. Three years later she was admitted to Graylands Hospital three times within a short period. Since then, she has been an involuntary patient under the Act, and has been readmitted to Graylands and another hospital on a number of occasions. According to her doctors, her readmissions were mostly associated with a reduction in her prescribed anti-psychotic mediation, or suspected non-compliance with medication.
11 In mid-2005, M was again admitted involuntarily to Graylands Hospital after a suspected suicide attempt. She was released after some hours, but was involuntarily admitted to another psychiatric hospital later the same month after another suicide attempt. On this occasion, she remained in hospital for approximately one month. According to Dr B, she failed to take her medication following her release from hospital, and she was admitted again approximately three months later for a period of three weeks. The diagnosis at the time of her last discharge was delusional disorder and chronic schizophrenia, paranoid type; she was discharged on a CTO which requires her to take anti-psychotic depot medication.
12 Around the time of the suicide attempts in mid-2005, M had failed to claim social security benefits, despite being unemployed, and she was in considerable financial difficulty. Following her last discharge from hospital towards the end of 2005, arrangements were made for her to receive a Disability Support Pension so that she now has regular income, and her mortgage was refinanced through HomesWest. Since then she has found employment.
13 Both Dr B and Dr W are of the opinion that M suffers from paranoid schizophrenia. Dr B in particular has provided detailed reports to the Tribunal in support of this view. M disputes that she has a mental illness. She says she has a belief system which is different from most other people and which she recognises others may consider strange. However, she says, those are her beliefs, she is entitled to them, and no amount of treatment will change them. She wishes to be discharged from the CTO and the associated medication, and instead undergo a form of treatment similar to deep meditation which is available and, she believes, would be effective.
Is there a less restrictive way of providing treatment
14 Both Dr B and Dr W are of the view that there is a risk, based on her past history, in particular the two suicide attempts in 2005, that, in the
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- absence of a CTO compelling her to take the prescribed medication, M will not take it; she will relapse and will again attempt to harm herself.
15 Dr B is of the view that this risk is very real. In his view, treatment cannot be adequately provided to M in a way that would involve less restriction of her freedom of choice and movement than would result from her being an involuntary patient; in his view, the only reason M is currently accepting medication by depot injection is because of the CTO. He agrees that there have been some improvement in M's condition over recent months since the changed circumstances in her life, but the fact that she still does not accept her illness increases the risk of relapse and suicide; moreover, while he does not think the alternative treatment proposed by M would harm her, in his opinion it would be of no particular benefit in treating her mental illness.
16 Although she disputes her doctors' diagnosis, M herself recognises the possibility that circumstances may again arise as they did in mid-2005 in which she will be a risk to herself. However, she is firmly of the view that circumstances have changed since then in significant ways which mean she is not likely to repeat that behaviour.
17 M argues that treatment can be provided to her in a way that is less restrictive of her freedom of choice and movement than would result from her continuing to be an involuntary patient. She is supported in this view by Dr W.
18 M told the Tribunal that, since mid-2005, circumstances have changed in ways that mean she no longer needs to be under a CTO in order to protect her health and safety. In particular, she points to the fact that she has now been employed for some months and has recently taken on a second job in order to save money to travel interstate. She provided the Tribunal with a reference from her current employer which sets out her duties and speaks very highly of her. More recently, she has taken on a second job with the aim of saving money with a view to travelling interstate. M says that the improved self-esteem, confidence, and better position that she is now in to find future employment, have made an enormous change in her life. Further, she has been able to negotiate a refinancing of her mortgage such that, even if she were unemployed and reliant entirely on her pension, she could meet the cost of her mortgage herself.
19 While he shares Dr B's concerns to some extent, Dr W believes that voluntary treatment is now a realistic alternative to continuing M's
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- involuntary status. Dr W has been M's general practitioner for seven years and sees her fortnightly, and occasionally more frequently. He agrees with Dr B's diagnosis that M suffers from paranoid schizophrenia. He knows that M does not share his view. He believes, however, that she will be compliant with medication without an order, although he recognises a risk that she may not.
20 Dr W says that M has improved greatly in the past six months; whether this is because she is now employed and more financially secure, or because of the medication she has been on under the terms of the CTO, he does not know. However, Dr W believes that, with clear ground rules, the less restrictive alternative of voluntary treatment should be tried.
21 Dr W told the Tribunal that M contacts him when she is distressed and agrees to take medication if he asks her to; at this point, he would require her to take medication because he considers she is in need of it, and he believes she will take it at his insistence. He told the Tribunal that he is reasonably confident that M would see him before her condition deteriorated and she would accept medication from him; he feels that the improvement in her condition means he is now able better to discuss it with her; if voluntary treatment does not work and M reverts to her former behaviour, she could be made subject to a new CTO.
22 Dr W has M's home phone number and mobile phone number; if she does not attend his surgery for medication as agreed, he would contact her; if she is not available when he telephones her, he would contact the Psychiatric Emergency Team operated by the Department of Health.
23 M told the Tribunal that she is agreeable to these arrangements. Although she does not recognise that she has a mental illness and does not agree with the diagnosis by Dr B and Dr W, she recognises that that is their view. She feels she now has a greater opportunity to negotiate and is willing to enter into a contract with Dr W for her treatment.
Reasons for decision
24 Because we are satisfied that there is a less restrictive way of adequately providingtreatment to M than making her an involuntary patient subject to a CTO, we do not need to make findings on all of the elements in s 26(1). For the purposes of this decision, however, we are satisfied, on the evidence of Drs B and W, that M suffers from a mental illness requiring treatment. We recognise that M does not share this view.
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25 We accept that there is a risk that, in the absence of a CTO, M may decide not to take her medication, even under the plan she and Dr W propose. Dr W recognises that risk as does M herself. However, we are satisfied that factors exist now which mean that circumstances have changed since the making of the involuntary order which mean that it should now be discharged.
26 We accept that, in the past six months or so, M has found employment and, more recently, a second job. We accept that she has been able to negotiate, or have others negotiate for her, arrangements for her mortgage which means that she now has a measure of financial security. We accept that these changes have been significant for her and make a recurrence of the circumstances which led to the suicide attempts in mid-2005 less likely. We are satisfied that she is willing to comply with Dr W's assessment as to whether she needs medication at any time and that she knows what will happen if she does not comply with his assessment.
Conclusion
27 We are satisfied that M can receive treatment for her mental illness under the arrangement proposed by herself and Dr W. We are satisfied that this arrangement represents a way of providing her with treatment which is less restrictive of her freedom than the making of an involuntary order.
28 We find that s 26(1) of the Act, which requires that all elements be made out, does not apply to M.
29 The order of the MHRB made on 13 March 2006 is set aside.
Order
1. The Tribunal orders that the decision of the Mental Health Review Board made on 13 March 2006 be set aside and in its place be substituted a decision that the applicant is not an involuntary patient under the Mental Health Act 1996 (WA).
- I certify that this and the preceding [29] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS J TOOHEY, SENIOR MEMBER
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