Mental Health Review Board and PM & Ors - [2005] WASAT 338

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: MENTAL HEALTH ACT 1996 (WA)

CITATION: MENTAL HEALTH REVIEW BOARD and PM & ORS [2005] WASAT 338

MEMBER: JUSTICE M L BARKER (PRESIDENT)

HEARD: 15 AUGUST 2005

DELIVERED : 19 DECEMBER 2005

FILE NO/S: MHA 20 of 2005

BETWEEN: MENTAL HEALTH REVIEW BOARD
Applicant
AND
PM
First Respondent
PATSY M SHALALA
Second Respondent
THE STATE OF WESTERN AUSTRALIA
Third Respondent
MENTAL HEALTH LAW CENTRE
Intervenor

Catchwords:

Mental health - Questions of law referred by Mental Health Review Board - Community Treatment Order - Whether "another psychiatrist is not readily available to confirm order" for the purposes of s 69(1) of the Mental Health Act1996 (WA) - Whether authorisation order by Chief Psychiatrist authorising all medical practitioners in Western Australia to confirm Community Treatment Order is valid

Legislation:

Interpretation Act 1984 (WA), s 10

Medical Act 1984 (WA)
Mental Health Act 1996 (WA), s 3, s 5, s 17, s 26, s 26(1), s 26(1)b), s 29, s 29(2), s 30(2), s 31(1), s 31(2), s 32, s 36(1), s 39(1), s 40(1)(b), s 43, s 43(1), s 43(2)(a), s 49, s 49(3)(a), s 50, s 56(2), s 59, s 65, s 66, s 66(1)(a), s 66(1)(b), s 67, s 67(1), s 68, s 69, s 69(1), s 69(1)(b), s 69(2), s 69(3), s 70(1), s 75, s 75(1), s 76(3), s 76(5), s 77, s 78, s 82, s 83, s 84, s 90, s 111(3), s 137, s 138, s 138(1)(b), s 148E, Div 3 of Pt 3, Sch 2A
Prisons Act 1981 (WA), s 27
State Administrative Tribunal Act 2004 (WA), s 15, s 19(4), s 29(3), s 37(3), s 38(1), s 50(1)

United National International Covenant on Civil and Political Rights, Articles 9 and 10, signed and ratified by Australia

Result:

Answer to Question 1: Yes
Answer to Question 2: Yes
No need to answer Question 3.

Category: A

Representation:

Counsel:

Applicant:     N/A
First Respondent           :     N/A
Second Respondent       :     N/A
Third Respondent         :     Ms J Pritchard
Intervenor:     Mr J Immerman

Solicitors:

Applicant:     N/A
First Respondent           :     N/A
Second Respondent       :     N/A
Third Respondent         :     State Solicitor's Office
Intervenor:     Mental Health Law Centre

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

Bienke v Minister for Primary Industries and Energy (1996) 63 FCR 567
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Knezevic; ex parte Carter [2005] WASCA 139
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Shark Bay Tuna Farms Pty Ltd v Executive Director, Fisheries WA [2000] WASC 79

Case(s) also cited:

Attorney General (Cth) v Breckler (1999) 197 CLR 83
Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493
Australian Conservation Foundation Inc v Minister for Resources (1989) 19 ALD 20
Bienke v Minister for Primary Industries and Energy (1996) 63 FCR 567
Bolton v Dance [1968] VR 631
Bridgetown/Greenbushes Friends of the Forest Inc and Another v Executive Director of the Department of Conservation and Land Management and Others (1997) 18 WAR 126
Castik Investments Pty Ltd v Stonnington CC [1999] VCAT 190
Centro Properties Limited v Hurstville City Council and Anor (2004) 135 LGERA 257
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
McLean Bros and Rigg Ltd v Grice (1906) 4 CLR 835
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
North Coast Environmental Council Inc v Minister for Resources (No 2) (1994) 36 ALD 533
Onus v Alcoa of Australia Ltd 1981) 149 CLR 27
Ousley v The Queen (1997) 192 CLR 69
Project Blue Sky Inc and Ors v Australian Broadcasting Authority (1998) 194 CLR 355
R v Adams (1976) 12 ALR 239
R v Ludecke (1985) 155 CLR 513
Re Application of the News Company Ltd (1987) 70 ALR 419
Re Johndahl Nominees Pty Ltd v Commissioner of State Revenue (1999) 16 VAR 112
Re Knezevic; ex parte Carter [2005[ WASCA 139
Re Lawrence; ex parte Goldbar Holdings (1994) 11 WAR 549
Re Reith and Minister of State for Aboriginal Affairs (1988) 14 ALD 430
Re Verdugo v Government Superannuation Office (2002) 20 VAR 1
Scott v Cawsey (1907) 5 CLR 132
Selby v Pennings (1998) 19 WAR 520
Shark Bay Tuna Farms Pty Ltd v Executive Director, Fisheries WA and Anor [2000] WASC 79
The Ashley Hotel Pty Ltd v City of Banyule and Ors (2000) 20 VAR 1
Thompson v Goold [1910] AC 409
United Tobacco Company v Minister for Consumer Affairs (1988) 83 ALR 79

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The Mental Health Review Board applied to the State Administrative Tribunal for the determination of three questions of law:
(1)Whether on facts found by the Board it could be said that "another psychiatrist [was] not readily available" within the meaning of s 69(1)(b) of the Mental Health Act 1996 (WA).
(2)If in any case the second psychiatrist is not readily available, whether a medical practitioner who confirmed the making of a Community Treatment Order (CTO) was relevantly a "medical practitioner who has been authorised for the purposes of [s 69]".
(3)Whether, if one or both of the questions posed are answered in the negative, the CTO made in respect of the patient was invalid by reason of non‑compliance.
The Tribunal answered the first question of law by finding that the expression "is not readily available" in s 69(1)(b) draws attention to the question whether another psychiatrist is, without delay or without difficulty, available to confirm a CTO.
The Tribunal recognised that there is a degree of subjectivity in the application of this touchstone. It is for each examining psychiatrist to take into account the full circumstances of the patient and the case before him or her and other information to hand, to determine whether another psychiatrist is, without delay or without difficulty, available to confirm the CTO. The important point is that if the question is properly addressed, the answer should be reasonably obvious to the examining psychiatrist that makes the CTO.
As to the second question of law the Tribunal decided that on the material before it, it was not open to it to conclude that the authorisation order authorising all medical practitioners in Western Australia to confirm its CTO, was invalid, even if the Tribunal had jurisdiction to determine that question on an application of this type under the Mental Health Act 1996.
In those circumstances there was no need for the Tribunal to answer the third question.

Application for determination of questions of law

Where a question of law arises in proceedings before the Mental Health Review Board, the Board may apply to the State Administrative Tribunal for determination of the question: Mental Health Act 1996 (WA) (MH Act) s 148E.
On 23 May 2005 the Board carried out a review as to whether or not a community treatment order (CTO) made in respect of Mr PM (the patient) on 30 March 2005, should continue to have effect. The Board's review was carried out in accordance with s 138(1)(b) of the MH Act. The review hearing was attended by the patient and Dr Shalala who had examined the patient on 30 March 2005 at the Subiaco Community Mental Health Centre (the clinic). The Board had available to it a report dated 16 May 2005 prepared by Dr Shalala and other documents and records maintained by the Board as required by the MH Act in relation to previous periods in which the patient had been an involuntary patient under the MH Act, including records relating to previous reviews carried out by the Board in relation to him. The Board also had the benefit of oral evidence provided by the patient and Dr Shalala.
On the basis of the documentary evidence and oral evidence available to it at the hearing concerning the patient's present psychiatric condition and other circumstances the members of the Board conducting the review formed the opinion that, having regard to the terms of s 26, s 65 and s 66 of the MH Act, the patient should continue to be an involuntary patient under the MH Act and that the CTO should continue to have effect. However, the Board also considered that an issue arose as to whether or not the CTO made on 30 March 2005 had been confirmed in accordance with the requirements of s 69 of the MH Act and identified certain questions of law the answers to which the Board believed would determine whether the CTO ever had legal effect. The Board considered that if the CTO had been confirmed in accordance with s 69 or is otherwise valid then the Board would conclude on the review that the CTO should continue to have effect.
Section 69(1) of the MH Act relevantly provides that a CTO:
"... does not have effect unless, within 72 hours after it is made, it is confirmed by -
(a)another psychiatrist; or
(b)if another psychiatrist is not readily available, another medical practitioner who has been authorised for the purposes of this section."
The provisions of s 69(2) are not here relevant.
A "psychiatrist" is defined by s 3 of the MH Act to mean a medical practitioner whose name is maintained in a register of psychiatrists prepared and maintained under s 17 of the MH Act by the Medical Board of Western Australia. Section 17 sets out the attributes of medical practitioners whose names may be entered on the register. Section 3 also provides that "medical practitioner" has the same meaning as in the Medical Act 1984.
Section 69(3) of the MH Act provides that the Chief Psychiatrist may, by order published in the Gazette:
"(a)authorise a medical practitioner for the purposes of this section if the medical practitioner has, in the opinion of the Chief Psychiatrist, suitable experience to decide whether a person should be the subject of a community treatment order;
(b)revoke any such authorisation."
Acting in accordance with s 69, in November 1997 the then Chief Psychiatrist made the Mental Health (Medical Practitioners – s 69 Authorisations) Order 1997 (the authorisation order) which came into operation on 13 November 1997. The authorisation order provides that:
"Every medical practitioner, not being a body corporate, who is registered under the Medical Act of 1984 is designated as an authorised medical practitioner for the purposes of s 69 ...".
When Dr Shalala examined the patient on 30 March 2005, Dr Cunningham, a psychiatric Registrar of the the clinic, examined the patient at the same time. Dr Cunningham is not a psychiatrist for the purposes of the MH Act, but is a medical practitioner registered under the Medical Act 1984.
Following the examination of the patient by Dr Shalala and Dr Cunningham on 30 March 2005, Dr Shalala acting under s 67 of the MH Act made the CTO in respect of the patient. Dr Shalala was named in the CTO as the psychiatrist responsible for supervising the carrying out of the CTO and also as the practitioner who would be responsible for ensuring that the treatment plan set out in the CTO would be carried out. Dr Cunningham signed the CTO as the "confirming psychiatrist or practitioner" noting that:
"I have reviewed this order and am satisfied that the patient should be made an involuntary patient and should be treated in the community in accordance with this order. I therefore confirm the order."
In these circumstances, the Mental Health Review Board have expressed a concern that the "primary requirement of s 69 is that the CTO must be confirmed within 72 hours by “another” psychiatrist (i.e. a psychiatrist other than the one who made the CTO) unless such a person is not “readily available". On the evidence available to the Board, it was concerned that four psychiatrists employed at the Clinic, albeit as part time employees, could have but did not sign the confirmation section of the CTO. In this regard, the Board have stated the evidence in the following terms:
"The evidence available to the Board, which is accepted, is that four psychiatrists are employed at the Clinic, all of whom are part time employees. However, on every working day at least one and sometimes more than one psychiatrist is on duty at the Clinic. In addition, the Board is aware from the performance of its functions of carrying out reviews of involuntary patients at authorised hospitals and mental health clinics in the metropolitan area that a substantial number of other psychiatrists are employed in the public sector within reasonable proximity of the Clinic. In these circumstances the Board finds as a matter of fact that another psychiatrist could be available at the Clinic within one or two working days for the purpose of confirming a CTO."
In these circumstances, the Board applied to the Tribunal for the determination of the following three questions of law:
(1)Whether, on the facts as found by the Board, it can be said that "... another psychiatrist [was] not readily available..." within the meaning of s 69(1)(b) of the Mental Health Act 1996.
(2)If in any case, a second psychiatrist is not readily available (however that expression is defined) then s 69(1) permits an authorised medical practitioner to confirm a CTO. In granting the Chief Psychiatrist the power to authorise medical practitioners for that purpose, s 69(3) permits the Chief Psychiatrist to authorise only those medical practitioners who, in the opinion of the Chief Psychiatrist, have suitable experience to decide whether a person should be the subject of a CTO. The Authorisation Order by authorising all medical practitioners registered under the Medical Act 1894 without any apparent consideration of their individual experience in relation to the requirements of the Act, may not be a valid exercise of the power to authorise conferred by s 69(3). Consequently the second question of law is whether Dr Cunningham was relevantly a "medical practitioner who has been authorised for the purposes of [s 69]".
(3)Whether, if one or both of the questions posed above are answered in the negative, with the consequence that Dr Cunningham's confirmation of the CTO was not in compliance with s 69(1) either because another psychiatrist was readily available or because Dr Cunningham was not "authorised" for the purposes of s 69 ‑ the CTO on 30 March 2005 was invalid by reason of that non-compliance.
At the commencement of the hearing, the Mental Health Law Centre (WA) Inc was granted leave to intervene in the proceedings pursuant to the State Administrative Tribunal Act 2004 (WA) s 37(3) and the State of Western Australia was formally joined as a party to the proceedings under the State Administrative Tribunal Act 2004 s 38(1). The Tribunal also ordered that the proceedings be conducted in public but that the name of the patient not be disclosed. Counsel for the State lodged an outline of submissions in writing on behalf of the State. Counsel for the Mental Health Law Centre also lodged submissions on intervention and on the questions of law raised by the application.

The first question: whether on the facts as found by the Board, it can be said that "... another psychiatrist [was] not readily available ..." within the meaning of s 69(1)(b) of the Mental Health Act 1996

Contentions of the State:

Counsel for the State noted that the Tribunal has jurisdiction under s 148E MH Act to determine questions of law referred to it by the Board and that the determination of the application involves an exercise of the Tribunal's original jurisdiction, as that expression is defined by s 15 of the State Administrative Tribunal Act 2004. Accordingly the Tribunal is obliged to deal with the matter in accordance with the State Administrative Tribunal Act 2004 and the MH Act, including Sch 2A of the MH Act.
Counsel outlined the decision‑making context facing the Mental Health Review Board in dealing with the review of the CTO in this case. The MH Act permits a person with a mental illness to be made an "involuntary patient" for the purpose of receiving treatment for that mental illness. An order may be made that requires the person to be detained in an authorised hospital where treatment can be given : see definition of "involuntary patient" in MH Act s 3, s 43(2)(a), s 49(3)(a), s 50 and s 70(1).
Alternatively a person may be required to undergo treatment while remaining in the community, pursuant to a CTO: see MH Act Div 3 of Pt 3. A CTO is an order which compels a person to undergo treatment in accordance with a treatment plan specified in the order, under the care of a medical practitioner or mental health practitioner, and under the supervision of a psychiatrist, for a specified period of not more than three months: see MH Act s 68.
If a person the subject of a CTO does not comply with the CTO, an order to attend may be made, under which the person must attend for treatment, whether or not the persons consents to that treatment. If the person fails to attend in response to an order to attend, an order may be made which permits the police to apprehend the person and take them for the treatment specified in the order to attend: MH Act s 82 ‑ 84.
The CTO in relation to the patient was made by Dr Shalala pursuant to s 67 of the MH Act. That section provides that a CTO may not be made without consideration of, amongst other things, the objects of the Act, and the objectives set out in s 26 of the Act; see also MH Act s 65 and s 66.
The CTO in respect of the patient was made by Dr Shalala at noon on 30 March 2005 and confirmed by Dr Cunningham at the same time.
Counsel for the State says that the CTO was therefore purportedly confirmed within the period required by s 69(1) of the MH Act.
The first issue is whether, on the facts as found by the Board, it can be said that another psychiatrist was "not readily available" within the meaning of s 69(1)(b).
As defined in the Macquarie Dictionary (3rd ed) 1998 at 139 and the New Shorter Oxford English Dictionary Vol 2, 1993 at 154 the term "available" means "at hand", "of use or service" or able to be used or turned to account, at one's disposal, within one's reach, obtainable" or is "free for consultation".
Counsel for the State says that the term "available" therefore has a physical component which in the s 69(1) context, means that the other psychiatrist needs to be physically nearby and in a position to see the patient for the purpose of determining whether the CTO should be confirmed.
The word "available" in s 69(1) is qualified by the adverb "readily". A question also ensues whether it is qualified in its context, by the requirement that the confirmation be within 72 hours. The term "readily" means "promptly, quickly, easily", "in a ready manner, willingly" and "without delay, without difficulty": Macquarie Dictionary at 1773 and New Shorter Oxford English Dictionary at 2492. What does seem clear enough is that the requirement or condition is not that the other psychiatrist is not "immediately" available.
However, counsel for the State contends the use of the term "readily" imports a temporal component into the s 69(1) condition, so that there must be a measure of immediacy in relation to the requirement that another psychiatrist is not available.
Counsel for the State further submits that Parliament has recognised a need for a measure of immediacy in relation to the "availability" of another psychiatrist and that this is consistent with the factual context in which a CTO is likely to be made and the involuntary nature of a CTO. This is because, to confirm the CTO, it will often be necessary for the other psychiatrist or authorised medical practitioner to examine the patient who may well be unwilling or unable to present for further assessment after the consultation with the supervising psychiatrist.
Counsel for the State also submits that the objects of the MH Act and the objectives of involuntary orders set out in s 26(1) also support the interpretation of the words "readily available" contended for. A delay in the confirmation of the CTO (and thus a delay in its becoming legally effective) may, in some cases, detract from the protection of the health and safety of the patient or other persons or from the protection of the patient from self‑inflicted harm, or harm to his or her property, to which the making of a CTO is directed.

Counsel further contends that in construing the words "readily available" it should be borne in mind that the question whether another psychiatrist is readily available would ordinarily fall to be answered by the examining psychiatrist who makes the CTO, in circumstances that may involve an element of urgency, and having regard to the information reasonably available to the supervising psychiatrist at that time.
As a result, it is contended that it is not possible for the Board or the Tribunal to establish any universally applicable rule as to when another psychiatrist will or will be "not readily available". The answer to that question will depend on the facts and circumstances of each case.

Contentions of the Mental Health Law Centre:

Counsel for the Mental Health Law Centre notes that neither the individual component words in the phrase nor the phrase "not readily available" are defined in the MH Act and so the Tribunal is required to interpret the phrase having regard to the context and the purpose or object underlying the MH Act.
Counsel for the Mental Health Law Centre draws attention to the context in which the expression "readily available" appears in s 69(1), namely, that the CTO does not have effect unless "within 72 hours after it is made" it is confirmed. Counsel submits that this phrase connotes the notion of another psychiatrist not being easily "obtainable for use" within 72 hours after the CTO is made. Counsel contends that no absurdity, repugnance or inconsistency with the rest of the Act arises in the interpretation of the phrase in this way. On this interpretation, the psychiatrist who makes the CTO should, in effect, make inquiries as to the availability of another psychiatrist during the next 72 hour period after making the CTO, and only turn to an authorised practitioner if no psychiatrist can be found.
Counsel for the Mental Health Law Centre contended that this interpretation and result would be in keeping with and would promote the policy, object and purpose of the MH Act with regard to the making of Community Treatment Orders with respect to a person such as the patient, who is "unknown to the system" (that is, not an existing involuntary patient and not a present recipient of State-based psychiatric care) and prevent the mischief at which the legislation is aimed. In this regard, counsel contends that it is manifestly the scheme and policy of the MH Act that the order by a psychiatrist placing a person, who is an unknown entity on a CTO constitutes an act with serious consequences involving difficult clinical, health and safety considerations concerning both the subject person as well as other persons. Counsel says the essential thrust of the Act is that the most appropriate person to be entrusted with the task of confirming a CTO is another psychiatrist, and that only in very limited circumstances - where within a period of 72 hours another psychiatrist is not "easily obtainable" ‑ is it permitted to obtain confirmation from an authorised medical practitioner. It is contended that these policy considerations are enshrined in MH Act s 5, s 26, s 43, s 59, s 66, s 67, s 68 and s 69.
Counsel further contends that in no other place in the MH Act except in relation to the making of a CTO by a psychiatrist in respect of an unknown entity, is there any policy to be detected to require the order of the psychiatrist to be confirmed before it has effect ‑ thereby demonstrating the policy of the Act to make a special case of a CTO in respect of an unknown entity by requiring confirmation preferably by another psychiatrist.
In this statutory context and having regard to the facts as found by the Board, counsel for the Mental Health Law Centre submits that, on the probabilities, the inference is irresistible that another psychiatrist would have been easily obtainable for use within the 72 hour period after the making of the CTO at noon on 30 March 2005 by Dr Shalala.

Consideration of Question 1:

There is no doubt that the scheme and policy of the MH Act reflects the fundamental human right of each individual in our community to liberty and freedom, and where they are deprived of their liberty, to be treated with humanity: see United Nations International Covenant on Civil and Political Rights, Articles 9 and 10, signed and ratified by Australia. In 1991 the United National General Assembly adopted principles for the protection of people with mental illness. Principle 2 provides: "all persons with a mental illness, or who are being treated as such personal shall be treated with humanity and respect for the inherent dignity of the human person". This is particularly emphasised in relation to the making of a CTO by the relevant provisions of the MH Act.
Section 67, as we have seen, permits a psychiatrist "who has examined a person" and believes, having regard to the criteria set out in s 26, that the person should be made an involuntary patient, to make a CTO in respect of the person.
The requirement for examination must be interpreted to mean that the patient has been examined in person by the psychiatrist, and not, for example, simply by reference to documentary accounts of the patient's condition or other, second‑hand accounts of the patient's condition. In this regard the examining psychiatrist has a professional obligation under the MH Act to personally examine the person.
In other respects, however, the interpretation of s 69(1) is not as straight forward as it perhaps at first appears. The differing contentions of counsel illustrate the interpretive difficulties. The difficulties become apparent when one asks these two questions:
·Why has the Parliament provided a 72 hour period within which a CTO is to be confirmed by another psychiatrist or an authorised medical practitioner?
·Who has the responsibility of deciding whether another psychiatrist "is not readily available", thereby making it possible for an authorised medical practitioner to confirm a CTO?
The contentions of counsel on each side were made on the implicit understanding that the examining psychiatrist who had made the CTO effectively must seek the confirmation of the order by another psychiatrist or an authorised medical practitioner. I think this understanding must be correct. This is because, in effect, under the MH Act the examining psychiatrist is the person vested by Parliament with the public power to make an order constraining a person's civil and political rights. There being no other official decision‑making machinery provided by the MH Act, it must fall to the examining psychiatrist to seek confirmation of the CTO he or she has made.
In those circumstances, it seems to me that it is the examining psychiatrist who makes the CTO, who must initially ask himself or herself the question whether another psychiatrist is "readily available".
It also seems to me to follow that the examining psychiatrist who makes the CTO should answer that question at the time the CTO is made. There is no valid argument to be made, having regard to the words used in s 69(1) or the context in which s 69(1) appears in the MH Act, that the question must be asked either just before the 72 hour period expires or at some other time during the 72 hour period after the CTO was made, and not when the CTO is made.
Good public administration in relation to the making of an involuntary order suggests that if there truly is a need for such an order to be made, it should normally be made and take effect as soon as practicable. If a patient or the community requires the protection that such an order provides unfortunate outcomes might follow if the order does not have legal effect as soon as practicable. Thus, the confirmation should normally be given as soon as practicable to enable the CTO to have legal effect.
The examining psychiatrist should then ask himself or herself at the time the CTO is made, whether there is another psychiatrist "readily available" to confirm the order. If not, the examining psychiatrist may seek out an authorised medical practitioner to confirm the order.
I do not think that the question of availability can be answered in advance of the making of the CTO. And I do not think that the question can be answered on the assumption, made in advance of the making of the order, that another psychiatrist will not be available when the CTO is made. Nor do I consider the examining psychiatrist can act on a general policy or practice or understanding that an authorised medical practitioner can always be used to confirm a CTO because another psychiatrist, as a rule, is not always easily found to confirm a CTO at the time of its making.
In other words, the examining psychiatrist who makes a CTO must always consider, at the time the CTO is made, whether another psychiatrist is "not readily available". That is not to say, however, that an examining psychiatrist should artificially close his or her mind to the practical situation concerning the availability of another psychiatrist in the period leading up to the examination of a patient and the possible making of a CTO in respect of a patient. It must be open to the examining psychiatrist to make appropriate inquiries about the availability of another psychiatrist to confirm the CTO in the period immediately before examining a patient, in the event that the examining psychiatrist decides to make the CTO. The knowledge thereby gained as to the ready availability of another psychiatrist to confirm the CTO will be relevant at the time the CTO is made, if it is made. The point ultimately is that the examining psychiatrist must take this injunction specified in the Act seriously and consciously address the requirement before inviting an authorised medical practitioner to confirm the CTO.
As to what factors should be taken into account by the examining psychiatrist in deciding if another psychiatrist is "not readily available", this cannot be answered by any universal prescription. I consider that the relevant touchstone for deciding this issue is whether the other psychiatrist may be considered available "without delay or without difficulty" to confirm the CTO immediately after it is made by the examining psychiatrist. As I suggest, it is not possible to provide more prescription than this.
There is, no doubt, a degree of subjectivity in the application of this touchstone. It is for each examining psychiatrist taking into account the full circumstances of the patient and the case before him or her and other information to hand, to determine whether another psychiatrist is, without delay or without difficulty, available to confirm the CTO. The important point is that if the question is properly addressed, the answer should be reasonably obvious to the examining psychiatrist who makes the CTO.
I have emphasised the importance of the examining psychiatrist to turn his or her mind to the question whether another psychiatrist is, without delay or difficulty, available to confirm the CTO at the time it is made. However, I do not consider this requires the examining psychiatrist to undertake or instigate any elaborate inquiry as to the availability of another psychiatrist before deciding that he or she should turn to an authorised medical practitioner to confirm the CTO. Again, I would not be prescriptive about what steps or inquiries the examining psychiatrist should take. These again would depend on the circumstances in which the examining psychiatrist finds himself or herself. If, as the facts of this case suggest, the examining psychiatrist works at a mental health clinic, there may well be other psychiatrists available and the examining psychiatrist may be expected to have some knowledge of their usual availability and the like.
To finally deal with the point, the critical issue for the examining psychiatrist who makes the CTO is to decide whether at the time the CTO is made another psychiatrist is "not readily available".
The 72 hour period following which a CTO will not take effect unless it is confirmed, is, in my view, designed to enable the examining psychiatrist who made the CTO to ensure that either another psychiatrist or an authorised medical practitioner has the opportunity, if required, to do what is necessary to form a confirmatory opinion (usually by carrying out an examination if they were not present at the time the psychiatrist conducted that examination); or to enable materials and information to be submitted to another psychiatrist or authorised medical practitioner in circumstances where, at the time the CTO was made, the confirmation by another psychiatrist or authorised medical practitioner simply could not be requested.
I am not prepared to interpret s 69(1) as, in effect, requiring the examining psychiatrist to seek out another psychiatrist during the 72 hour period and only to turn to an authorised medical practitioner in the event that another psychiatrist cannot be found to provide confirmation within that period.
I consider it to be simply a matter of fact whether, on any given occasion when a psychiatrist makes a CTO, another psychiatrist "is not readily available", in terms of not being available to confirm the order without delay and without difficulty.
In so finding I have taken into account my view that the requirement in s 69(1) that a CTO does not have effect unless, within 72 hours after it is made, it is "confirmed by" another psychiatrist or if another psychiatrist is not readily available, by another medical practitioner who has been authorised for the purposes of s 69(1), does not necessarily mean that the other psychiatrist or relevant medical practitioner must also have physically examined the patient in person before confirming the order.
Having regard to the scheme and policy of the Act already laid out, and to the particular requirement that there should be confirmation "within 72 hours after" the CTO is made, there is perhaps an inference that the other psychiatrist or authorised medical practitioner should also take the opportunity to personally examine the patient before confirming the CTO. However, there are a number of provisions of the MH Act which expressly provide for examination or require that conclusion. For example:
(1)Section 29 of the MH Act permits a medical practitioner or an authorised mental health practitioner who suspects that a person should be made an involuntary patient to refer the person "for examination by a psychiatrist". The examination in this statutory context seems to contemplate a physical examination. In fact, the Act makes provisions for where the examination is to take place: s 29(2), s 30(2), s 36(1), s 39(1). The referring practitioner may not make such a referral "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": s 31(1), s 31(2), s 32. In this context the need for an examination, and indeed a physical examination, seems to underpin the statutory provisions. It also accords with a policy underlying the MH Act that a person's human right not to be detained involuntarily should not be viable violated/denied/interfered with? without proper justification. An examination of a person indirectly, for example, by reliance on documents or other indirect accounts of a person's condition, would not satisfy this policy imperative.
(2)Under the MH Act, if a person who has been removed to an authorised hospital under s 27 of the Prisons Act 1981 (WA) becomes entitled to be discharged from lawful custody while admitted to the hospital, that prisoner must be examined before being released to determine whether the prisoner should be made an involuntary patient: MH Act s 56(2). Similarly, a person released or discharged from any custody or status under any Commonwealth, State or Territory law relating to mental disorder may be referred for examination by a psychiatrist under s 29: MH Act s 90.
(3)Before making an involuntary patient order in respect to a person, a psychiatrist must first examine that person: see for example, MH Act s 40(1)(b), s 43(1).
(4)The person the subject of an involuntary patient order must be examined at prescribed intervals to determine whether the person should continue to be an involuntary patient: MH Act s 49, s 50.
(5)The following provision of the MH Act also expressly requires an examination of a person who is to be made subject to a CTO, or who is the subject of a CTO:
(a)the preconditions for the exercise of the general power to make a CTO under MH Act s 67 include the express requirement that the psychiatrist should first examine the patient: s 67(1);
(b)the person the subject of a CTO must be examined at prescribed intervals so that consideration can be given to whether the person should continue to be an involuntary patient: s 75 and s 78. For that purpose, the supervising psychiatrist is to examine the patient (see s 75(1));
(c)the patient who is the subject of a CTO which is to be extended may request that the psychiatrist extending the CTO obtain a second opinion from another psychiatrist as to whether the CTO should have been extended: s 76(3). Although the Act does not expressly require that the psychiatrist providing that second opinion should have examined the person, there may be thought to be an implication that such an examination take place, given the extension of the CTO does not lapse if the second opinion has not been obtained because the patient "failed to attend an examination": s 76(5).
While the MH Act provides for a person to be "examined" in various contexts, the Act also makes provision for the examination of a patient by a psychiatrist other than when the psychiatrist and the patient are in one another's physical presence in the following circumstances:
(1)a patient who is being given psychiatric treatment is entitled to obtain a second opinion from the psychiatrist as to whether the treatment should be given. The second opinion may be given " after the psychiatrist and the person have been in communication with one another via audio‑visual means and without having been in one another's physical presence": s 111(3) of the MH Act;
(2)a patient at an authorised hospital has the right to interview with, and to be examined by, a psychiatrist who is not the patient's treating psychiatrist. That interview or examination is to take place as soon as practicable after it is requested. The examination may be conducted by audio‑visual means and without the psychiatrist and the patient having been in one another's physical presence: s 164(4);
(3)a supervising psychiatrist who is required to examine a person, the subject of a CTO, may request an authorised medical practitioner to examine the patient, under written directions from the supervising psychiatrist. The supervising psychiatrist, without personally having examined the patient, may prepare a report about the patient on the basis of the authorised medical practitioner's report. In that case, the supervising psychiatrist is taken for the purposes of the Act to have examined the patient: s 77.
On the one hand, it may be contended that these provisions tend to support the view that Parliament intended that a psychiatrist or authorised medical practitioner must physically examine the person prior to action under the MH Act, except where it is expressly provided to the contrary.
On the other hand, it may be argued that because such care has been taken in the MH Act to spell out the circumstances where physical examination is required, and those in which something less than physical examination is acceptable, that the absence of any express requirement in s 69(1) that the confirming psychiatrist or authorised medical practitioner should examine the patient supports the conclusion that s 69(1) does not make it mandatory for a confirming psychiatrist or authorised medical practitioner to physically examine the patient for the purpose of confirming a CTO.

In relation to this view counsel for the State contends that such a conclusion would be consistent with the role of the confirming psychiatrist or authorised medical practitioner under s 69, because it is merely a confirmatory role. In this regard, the ordinary meaning of the word "confirm" is "to corroborate, or add support to; make certain, verify, put beyond doubt": The Oxford English Dictionary p 710; Macquarie Dictionary p 460. Counsel contends this can be done without a physical examination.
Counsel for the State observes that confirming a CTO will require a consideration of the matters set out in s 65 and s 66 of the MH Act, and the objects in s 5 of the MH Act, particularly the object of ensuring that persons who have 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: s 5(a) of the MH Act. One such relevant consideration is whether the patient has a mental illness requiring treatment, and whether that treatment should be given by either detention in an authorised hospital or through a CTO (s 26(1)(b), s 66(1)(a)).
Counsel says it can be envisaged that, in many cases, in order to make that assessment the confirming psychiatrist or authorised medical practitioner will wish to examine the patient the subject of the CTO for the purpose of understanding why the CTO was made and thus to determine whether it should be confirmed. However, counsel suggests that it also follows that a physical examination of a patient may not always be necessary. For example, if the patient the subject of the CTO is well known to the confirming psychiatrist or authorised medical practitioner (for example, because the person has been one of their patients) it may not be necessary to examine the patient in order for the confirming psychiatrist or authorised medical practitioner to understand why the CTO was made and to determine whether it should be confirmed. Alternatively, the confirming psychiatrist or authorised medical practitioner may be able to obtain adequate information by discussing the matter with the psychiatrist who examined the patient, or by speaking with the patient (even if not in person).
It is also contended that other considerations relevant to whether a CTO should be confirmed do not require an examination of the patient: for example, whether suitable arrangements can be made for the care of the patient in the community (s 66(1)(b)) and whether the making of the CTO will ensure that the patient receives the best care and treatment with the least restriction of their freedom and the least interference with their rights and dignity.
Thus, counsel for the State submits that, whether a physical examination of the patient is required to permit the confirming psychiatrist or authorised medical practitioner to determine whether the CTO should be confirmed, will be a matter for the judgment of the confirming psychiatrist or authorised medical practitioner, having regard to his or her medical knowledge, relevant considerations under the Act (for example, the criteria in s 66, the objects in s 26(1)(b) and the objects in s 5) and the circumstances of each case.
As a result, counsel for the State contend that, on its proper interpretation, s 69(1) does not mandate that the confirming psychiatrist or authorised medical practitioner must physically examine the patient for the purpose of confirming the CTO in respect of that patient.
Counsel further submits that an examination of a patient may obviously be called for in some cases before a CTO can be confirmed, and that this may be an issue of relevance as to whether it can truly be said in the circumstances of the case that "another psychiatrist is not readily available" for the purposes of s 69(1)(b) of the MH Act. However, this simply means that no general rule can be established given that, in each case, the question will be whether an examination is required and the question whether "another psychiatrist is not readily available" will depend on the facts and circumstances of that case.
I am inclined to accept the interpretation placed on s 69(1) contended for by counsel for the State as to whether a physical examination of a patient by the confirming psychiatrist or authorised medical practitioner is required. First, there is the point that s 69(1) does not expressly state that an examination of the person is required before a confirming opinion can be formed when so many other provisions of the Mental Health Act 1996 expressly address the question or remove the need for a physical examination.
Secondly, there will be situations where, the treating psychiatrist having made the order, it may prove very difficult to arrange for the patient to be physically examined by another psychiatrist or authorised medical practitioner in the particular circumstances of the case. For example, while a psychiatrist may be in attendance to examine a patient in a regional location or remote area of the State of Western Australia and decide to make a CTO, there may be no psychiatrist or authorised medical practitioner physically at hand to examine the patient and to confirm the CTO. In such circumstances, it seems reasonable to conclude that it would be open to another psychiatrist or authorised medical practitioner located elsewhere to confirm the CTO, provided that the confirming opinion can be properly formed on adequate materials and information. It may be that audio‑visual communications would enable an indirect examination or, if that were not possible, a confirming opinion might be able to be formed on the basis of written materials and other indirect information provided to the confirming psychiatrist or authorised medical practitioner. Such circumstances would be rare but, because they can be envisaged, they may help to explain why Parliament did not impose any express requirement on the other psychiatrist or authorised medical practitioner to conduct a physical examination before confirming the CTO.
These considerations militate against the view that there must be a physical examination by the confirming psychiatrist or authorised medical practitioner in every case. However, one would think that the circumstances in which a personal examination of a patient is not carried out by the psychiatrist or authorised medical practitioner before confirming a CTO, will be exceptional. In most cases, it would be surprising if a confirmatory opinion could be formed without a personal examination of the patient.
As to whether or not another psychiatrist was "readily available" in the circumstances of this case is not an issue that the Tribunal can resolve. The Board has found that although four psychiatrists were employed at the clinic, all four were part‑time employees. As a result, only one or sometimes more than one psychiatrist was on duty at the clinic on every working day. Dr Shalala was one of the psychiatrists employed at the clinic. Counsel for the State contends that it can reasonably be inferred from the facts found by the Board that Dr Shalala was the only psychiatrist working on 30 March 2005. I think that is a fair inference to make.
The Board also found that a substantial number of other psychiatrists are employed in the public sector within "reasonable proximity" of the clinic. However, as counsel for the State submits, even if that finding suggests that some other psychiatrists were "available" ‑ that is to say, physically proximate to the clinic at which Dr Shalala was working when the CTO in this case was made - so as to be able to examine the patient, the finding is not sufficient, of itself, to establish that those other psychiatrists were "readily" available. That is to say, the Board's finding is not sufficient to enable a conclusion to be drawn that another psychiatrist in the general area of the clinic was, without delay and without difficulty, able to attend to at the clinic to examine the patient and to provide a confirmatory opinion. The Board has simply found that another psychiatrist could be available within one or two working days. That finding equally supports a conclusion that another psychiatrist was not "readily available" at the time the CTO was made.
Given the approach I have taken to the interpretation of s 69(1), it is not sufficient to conclude that another psychiatrist may have been available within the 72 hour period. The examining psychiatrist was not obliged to search out another psychiatrist before inviting an authorised medical practitioner to provide a confirming opinion. If another psychiatrist was not readily available when the CTO was made, the psychiatrist making the order could turn to an authorised medical practitioner for confirmation.
It follows that the answer to the first question put by the Board is "Yes".

Question 2. Whether Dr Cunningham was relevantly a medical practitioner who has been authorised for the purposes of s 69 of the MH Act

Section 69(3) of the MH Act permits the Chief Psychiatrist to make an order authorising a medical practitioner for the purposes of s 69, if the Chief Psychiatrist is of the opinion that the medical practitioner has suitable experience to decide whether a person should be the subject of a CTO.
By an order published in the Government Gazette on 14 November 1997 (the authorisation order) the Chief Psychiatrist designated every medical practitioner (other than a body corporate) who is registered under the Medical Act 1994 as an authorised medical practitioner for the purposes of s 69 of the Act.
Dr Cunningham, who confirmed Dr Shalala's CTO in this case was, on the face of the authorisation order, authorised for the purposes of s 69 of the MH Act to confirm the CTO.
What is implicit in the Board's question and explicit in the application before the Tribunal is that the Tribunal is asked to make a determination as to whether the authorisation order is valid.
Counsel for the State submits that the Tribunal does not have jurisdiction to determine whether the authorisation is valid because the State Administrative Tribunal Act 2004 (SAT Act) does not vest jurisdiction in the Tribunal to engage in what amounts to judicial review of an administrative decision: see Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589 (Bowen CJ and Deane J) in relation to the administrative function vested in the Commonwealth Administrative Appeals Tribunal.
Counsel submits that in so far as the Tribunal exercises a review jurisdiction, that review jurisdiction constitutes a review of the merits of the decision under review, rather than the legality of that decision. The Tribunal is permitted under s 29(3) of the SAT Act to substitute its decision for that of the original decision-maker. In contrast, a court engaged in judicial review determines the legality of a decision under review, but cannot take action to make an unlawful decision lawful: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597.
In making a distinction between the judicial review and merits review jurisdictions, counsel for the State refers to s 19(4) of the SAT Act which provides that proceedings before the Tribunal may be struck out under s 50(1) of the SAT Act if the Tribunal considers that judicial review proceedings would be more appropriate. However, it is clear that s 50(1) does not require the Tribunal to strike a proceeding out simply because judicial review proceedings may be available.
There is though, authority ample to support the view that administrative tribunals like the State Administrative Tribunal may determine questions of fact and law on issues that go to the exercise of jurisdiction in a given case. However, ordinarily an administrative tribunal would not have the jurisdiction to determine an application aimed, not at invoking the jurisdiction which it possesses, but at securing an authoritative determination of a question of law anterior to the existence of its jurisdiction: Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 at 343 (Deane J) cited with approval in Shark Bay Tuna Farms Pty Ltd v Executive Director, Fisheries WA[2000] WASC 79 at [24] per Wheeler J.
In the circumstances of this case, it seems to me that the Board's application in respect of the second question invites the Tribunal to rule on the validity of the authorisation order. Ordinarily a challenge to the validity of a legislative instrument such as the authorisation order, would be made/instituted in proceedings in the Supreme Court; or would be raised as a proper collateral challenge in relevant legal proceedings.
Counsel for the State argues that the Mental Health Act 1996 manifests a legislative intent that collateral challenge to the authorisation order may not be pursued before the Board. The counsel argues that in undertaking a review of the CTO under the Mental Health Act 1996, the Board is required to have regard "primarily to the psychiatric condition of the person concerned and … to consider the medical and psychiatric history and the social circumstances of the person": s 137. Counsel contends that the focus of the review under s 138 is on the merits of the CTO and its continuation, rather than on the legality of the initial decision to make the CTO.
Thus it is contended that there is an absence of jurisdiction to consider the validity of the CTO and that it is not overcome by the power of the Board to refer questions of law to the Tribunal. That is because the applicant may only refer to the Tribunal "a question of law [which] arises in proceedings before the [Board]".
However, in this case, I do not think it is necessary to determine this issue. In my view, it may well be open to the Board in a case where a legislative instrument appears manifestly unlawful to deal with the question of alleged invalidity. Ordinarily, however, I consider the Board should proceed on the basis that a legislative instrument is regularly made.
It may also be open to conclude that the question of the possible invalidity of a legislative instrument raised in a collateral challenge is a "question of law" that can be referred by the Board to the Tribunal.
However, there is no basis on any material before the Tribunal to conclude that the authorisation order is invalid. Nothing in the MH Act prohibits the Chief Psychiatrist from designating all medical practitioners registered under the Medical Act for the purposes of s 69. In particular the prohibition does not preclude an order being made of the kind made in the authorisation order.
Although s 69(3) refers to an order authorising "a medical practitioner" words in the singular are presumed to include the plural: Interpretation Act 1984 (WA) s 10. Section 69(3) therefore does not require that a separate order be made for each medical practitioner authorised for the purposes of s 69.
Nothing in s 69(3) itself precludes the Chief Psychiatrist from forming the opinion that each medical practitioner registered under the Medical Act has suitable experience to decide whether a person should be the subject of a CTO.
The decision to authorise a medical practitioner reflects a conclusion that the medical practitioner has "suitable experience" to decide whether a person should be the subject of a CTO. In determining whether a medical practitioner has "suitable experience" to decide whether a person should be made an involuntary patient, the Chief Psychiatrist would need to be satisfied that a medical practitioner had knowledge or practical wisdom derived from the course of study or from observation or from what had been encountered, which was appropriate to decide whether a person should be made subject to a CTO, having regard to the terms of the MH Act.
Nothing in the material before the Tribunal constitutes evidence, nor a basis upon which an inference can properly be drawn that the Chief Psychiatrist acted in excess of the power granted to him under s 69(3), or that the authorisation was invalid for any other reason: Bienke v Minister for Primary Industries and Energy(1996) 63 FCR 567 at 576; cited with approval in Knezevic; ex parte Carter [2005] WASCA 139 at [46] per McClure J.
While the question may be asked, as a matter of policy, whether the Chief Psychiatrist considers that all medical practitioners truly have the "suitable experience" required to justify the blanket authorisation, as a matter of law there is no evidence before the Tribunal in these proceedings to suggest that the Chief Psychiatrist who made the order misunderstood the conditions on which his power to make the authorisation order depended.
The answer then to the second question is "yes" - Dr Cunningham is authorised for the purposes of s 69 of the MH Act.

Question 3

As the answer to each of the questions 1 and 2 is "yes", there is no need to deal with question 3.
I certify that this and the preceding [97] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE M L BARKER, PRESIDENT