NR v Department of Health and Wellbeing

[2021] SASCA 104

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

NR v DEPARTMENT OF HEALTH AND WELLBEING

[2021] SASCA 104

Judgment of the Court of Appeal  (ex tempore)

(The Honourable Justice Doyle and the Honourable Justice Bleby)

28 September 2021

HEALTH LAW - TREATMENT AND CARE OF MENTALLY ILL PERSONS - COMMUNITY TREATMENT ORDERS

Application for leave to appeal from a decision of the South Australian Civil and Administrative Tribunal.

On 4 November 2020, the Tribunal made a level 2 community treatment order in respect of the applicant. In its review jurisdiction, the Tribunal affirmed the decision. The applicant sought leave to appeal against that review decision.

The overriding question is whether granting leave would be in the interests of justice.

Held (by the Court), refusing leave to appeal:

1. The applicant has not established any arguable error in the Tribunal’s determination of the application for review. There is nothing to suggest that the interests of justice would otherwise require a grant of leave.

Mental Health Act 2009 (SA) ss 5A, 16(1); South Australian Civil and Administrative Tribunal Act 2013 (SA) s 71(2), referred to.
Jackson v Lepp Investments Pty Ltd (2016) 125 SASR 1; Khoo v Bartholomaeus [2020] SASCFC 122; Pix v South Australian Housing Trust (2016) 125 SASR 10, considered.

NR v DEPARTMENT OF HEALTH AND WELLBEING
[2021] SASCA 104

Court of Appeal – Civil:  Doyle and Bleby JJA (ex tempore)

1. THE COURT: This is an application, made pursuant to s 71(2) of the South Australian Civil and Administrative Tribunal Act 2013 (SA), for leave to appeal against a decision by a Deputy President of the South Australian Civil and Administrative Tribunal (the Tribunal), made on 6 July 2021. That decision was to affirm a decision of the Tribunal on 4 November 2020 to place the appellant under a level 2 community treatment order pursuant to s 16 of the Mental Health Act 2009 (SA).

2. Section 16(1) of the Mental Health Act sets out the criteria for making a level 2 community treatment order. The Tribunal’s findings on review addressed each of these criteria.  Specifically, it found:

   ·the applicant suffers from a mental illness, being a primary diagnosis of schizophrenia.  It found that it was likely that he suffers from a number of co-morbid conditions;

   ·the applicant’s history of aggressive and violent behaviour, because of his mental illness, warrants the conclusion that he requires treatment to protect others and himself from harm. If not treated appropriately, it is likely that he will suffer from further psychotic episodes;

   ·the applicant denies that he has a mental illness. He does not have predictive capacity in managing his illness and lacks insight into his condition and his need for appropriate treatment. Applying the criteria in s 5A of the Mental Health Act, he has impaired decision-making capacity in relation to the appropriate treatment of his mental illness; and

   ·having regard to the chronic nature of the applicant’s illness, his aggressive behaviour towards his parents and his therapist, and the opinion of his treating psychiatrist that it would be impossible to treat him without a level 2 community treatment order, there is no less restrictive means to ensure appropriate treatment of his mental illness.

3. The Tribunal concluded that with the support of a level 2 community treatment order, the applicant was likely to be able to live in the community with the necessary support services.  It granted leave to apply for a review, but dismissed the review.

4. The grounds in the applicant’s Notice of Appeal are that:

   ·the prescribed medicine he is being administered under the level 2 community treatment order is making him mentally ill by reason of it being an overdose;

   ·his treating psychiatrist is not giving consideration to his concerns;

   ·he has put on 70 kg from the overdosing of the prescribed medicine; and

   ·police are being called to his address continually.  They force entry, bully him and threaten him with stabbing with foreign objects, being contaminated needles.

5. The Tribunal on review proceeded without the applicant having been present.  It made extended efforts to contact him but eventually proceeded, being satisfied that the applicant had notice of the hearing.  In doing so, it had regard to the statements the applicant had made in the original hearing and the grounds of the application. This regard extended to the matters that the applicant now raises as grounds of appeal.

6. In considering whether to grant leave, the Court is required to consider whether there is a reasonably arguable ground and whether the subject matter of the appeal is of sufficient substance to justify consideration.[1]  The overriding question is whether to grant leave would be in the interests of justice.[2] 

   [1]     Jackson v Lepp Investments Pty Ltd (2016) 125 SASR 1 at [19] (Parker J); Khoo v Bartholomaeus [2020] SASCFC 122 at [10] (Kelly J, Livesey and Bleby JJ agreeing).

   [2]     Jackson v Lepp Investments Pty Ltd (2016) 125 SASR 1 at [19] (Parker J); Pix v South Australian Housing Trust (2016) 125 SASR 10 at [3] (Kourakis CJ, Bampton and Doyle JJ agreeing).

7. The grounds set out in the Notice of Appeal do not establish any arguable error in the Tribunal’s determination of the application for review. The Tribunal’s reasons are otherwise clear and thorough.  There is nothing to suggest that the interests of justice would otherwise require a grant of leave.  We refuse leave to appeal.