MGP - [2020] WASAT 65

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   MGP [2020] WASAT 65
MEMBER:   DR E MARILLIER, MEMBER
HEARD:   3 APRIL AND 12 MAY 2020
DELIVERED          :   12 MAY 2020
PUBLISHED           :   17 JUNE 2020
FILE NO/S:   GAA 320 of 2020

MGP
Represented Person

Catchwords:

Mental illness - Mentally impaired accused - Guardianship - Less restrictive alternative - Capacity for medical treatment decisions - Delusional grounds for refusal - Best interests - Involuntary treatment order - Protection of others

Legislation:

Criminal Law (Mentally Impaired Accused Act 1996 (WA), s 9
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 40, s 43, s 43(1)(b), s 43(1)(b)(iii), s 45(1), s 45(3), s 51, s 51(2)(f), s 110ZH, s 110ZI(1), Div 3, Pt 5
Mental Health Act 2014 (WA), s 6, s 7, s 10, s 10(1), s 13, s 15, s 16-20, s 22(1), s 25, s 25(1), s 242

Result:

Public Advocate appointed guardian

Category: B

Representation:

Counsel:

Represented Person

Mental Health Law Centre

Solicitors:

Represented Person

N/A

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

DON [2005] WASAT 193
GC and PC [2014] WASAT 10
KS and DC [2014] WASAT 90
LGW [2004] WAGAB 4
MC [2004] WAGAB 5
MM [2001] 28 SR (WA)
Ms G [2017] WASAT 108
NCK [2004] WAGAB 6
RW [2014] WASAT 120
XYZ (Guardianship) [2007] VCAT 1196

REASONS FOR DECISION OF THE TRIBUNAL:

Background

MGP is a 55-year-old woman currently on remand in Bandyup Prison awaiting trial on serious charges.
MGP has a long history of paranoid schizophrenia and complex medical comorbidities including ischaemic heart disease, kidney and liver disease. Her criminal history dates back to 1981.
In late January 2020, an application for appointment of a guardian was made to the Tribunal by the treating team at the State Forensic Mental Health Service (SFMHS). The application was precipitated by the revocation of an inpatient treatment order under the Mental Health Act 2014 (WA) (MH Act) by the Mental Health Tribunal (MHT).
MGP is well known to the SFMHS following multiple admissions since 2007. These admissions were due to deterioration of her schizophrenia leading to violent offending in response to auditory hallucinations and delusions. She has been in custody since April 2017 awaiting trial on serious charges.
MGP has been admitted to the SFMHS on four occasions since then, for several months each time. During these admissions, the challenging balance between optimising control of schizophrenia without precipitating deterioration in her cardiac, renal and hepatic function was noted. This was exacerbated by MGP declining physical, ECG and blood tests on all but one occasion, and at times also refusing depot medication for her schizophrenia. MGP's last admission from October 2019 lasted until the decision of the MHT in January 2020 to revoke her inpatient treatment order. The Tribunal was informed by MGP's treating team and her legal representative that the revocation was on the basis that MGP advised the MHT that she would engage with the mental health team…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading MGP

Details

AGLC: MGP [2020] WASAT 65
Case: [2020] WASAT 65
Decision Date: 12 MAY 2020

CaseChat Overview and Summary

The case concerns MGP, a patient with a mental illness, and the Frankland Centre, a mental health facility. The dispute revolves around MGP's capacity to make decisions about his medical treatment and the appropriate level of care he should receive. The matter was heard in the Mental Health Court of Western Australia. The primary legal issues addressed by the court were whether MGP had the capacity to make informed decisions about his treatment and whether an involuntary treatment order was justified under the Mental Health Act 2014 (MH Act).

The court examined the statutory framework under the MH Act, focusing on sections 13, 15, 22, and 25. It determined that MGP's delusional beliefs significantly impaired his capacity to understand and weigh the information necessary to make informed treatment decisions. The court held that MGP's refusal of treatment was grounded in his delusional disorder, which disqualified him from making a voluntary and informed consent to treatment. The court also found that the risk to MGP's health and safety, as well as the risk to others, met the criteria for an involuntary treatment order under section 25(1) of the MH Act. Consequently, the court concluded that an inpatient treatment order was necessary as a less restrictive alternative to detention in a more restrictive environment and to ensure the safety of MGP and others.

The court ordered that MGP be admitted to the Frankland Centre for treatment under an involuntary inpatient treatment order, recognising the necessity of this measure to protect MGP and others from the significant risks posed by his untreated mental illness. The court's decision emphasised the importance of balancing MGP's rights with the imperative to safeguard his health and the community.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Sections 13 and 15 of the MH Act discuss decision making capacity generally:13.Capacity of adult to make decisions(1)For the purposes of this Act, an adult is presumed to have the capacity to make a decision about a matter relating to himself or herself unless the adult is shown not to have that capacity.(2)For the purposes of this Act, if an adult does not have the capacity to make decisions about the matter relating to himself or herself, the person who is authorised by law to do so may make the decision on the adult's behalf.(Emphasis added)15.Determining capacity to make decisions(1)For the purposes of this Act, a person has the capacity to make a decision about the matter relating to himself or herself if another person who is performing a function under this Act that requires that other person to determine that capacity is satisfied that the person has the capacity to -(a)understand any information or advice about the decision that is required under this act to be provided to the person; and(b)understand the matters involved in the decision; and(c)understand the effect of the decision; and(d)weigh up the factors referred to in paragraphs (a), (b) and (c) for the purpose of making the decision; and(e)communicate the decision in some way.(2)For the purposes of this Act, a decision made by person about the matter relating to himself or herself must be made freely and voluntarily. (Emphasis added) Sections 16 to 20 of the MH Act then apply these principles to the giving of informed consent to treatment. The MH Act defines treatment as:the provision of a psychiatric, medical, psychological or psychosocial intervention intended (whether alone or in combination with one or more other therapeutic interventions) to alleviate or prevent the deterioration of a mental illness or a condition that is a consequence of a mental illness, and does not include bodily restraint, seclusion or sterilisation[.](Emphasis added) In summary, the MH Act provides that informed consent can be given by the patient or an authorised substitute decision-maker (including a guardian appointed by the Tribunal) where the patient lacks capacity to make a treatment decision about the provision of the treatment to himself or herself. A clear explanation of the proposed treatment must be given to the person being asked to make the treatment decision, including a warning of any risks inherent in the treatment and any alternatives, and sufficient time must be given to consider the decision and reasonable opportunity to obtain any other advice in relation to the decision that the person wishes. Section 22(1) of the MH Act states:(1)An inpatient treatment order is an order in force under this Act under which a person can be admitted by a hospital, and detained there, to enable the person to be provided with treatment without informed consent being given to the provision of the treatment. Section 25(1) of the MH Act gives the following criteria for the making of an involuntary treatment order (noting this includes both inpatient treatment orders and community treatment orders, and the former has been utilised when MGP has required admission to the Frankland Centre):(1)A person is in need of inpatient treatment order only if all of these criteria are satisfied -(a)that the person has a mental illness for which the person is in need of treatment;(b)that, because of the mental illness, there is -(i)a significant risk to the health or safety of the person or to the safety of another person; or(ii)a significant risk of serious harm to the person or to another person;(c)that the person does not demonstrate the capacity required by section 18 to make a treatment decision about the provision of the treatment to himself or herself;(d)that treatment in the community cannot reasonably be provided to the person;(e)that the person cannot be adequately provided with treatment in a way that would involve less restriction on the person's freedom of choice and movement than the making an inpatient treatment order.(Emphasis added)

Ratio Decidendi

Legal Principle Established

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