QA v Chief Psychiatrist of the Act
[2017] ACTSC 306
•20 October 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | QA v Chief Psychiatrist of the ACT |
Citation: | [2017] ACTSC 306 |
Hearing Date: | 13 October 2017 |
DecisionDate: | 20 October 2017 |
Before: | Mossop J |
Decision: | 1. The appeal is dismissed. 2. No order as to costs. |
Catchwords: | ADMINISTRATIVE LAW – APPEALS FROM ADMINISTRATIVE AUTHORITIES – Psychiatric Treatment Order – appellant suffering from schizophrenia – suffers from delusions – refuses to take medications – turns on own facts |
Legislation Cited: | ACT Civil and Administrative Tribunal Act 2008 (ACT), s 86 Court Procedures Rules 2006 (ACT), r 5052 Mental Health Act 2015 (ACT), ss 10, 58, 58(2), 58(2)(a), 58(2)(b)(i), 58(2)(c), 58(2)(c)(i), 58(2)(c)(ii), 58(2)(d), 58(2)(e), (58(2)(g) 62, 79, 85, 85(2), 267, 267(2) |
Cases Cited: | Grooms v Toohey [2012] ACTSC 28; 7 ACTLR 1 |
Parties: | QA (Appellant) Chief Psychiatrist of the ACT (Respondent) |
Representation: | Counsel Self-represented (Appellant) A Collins (Respondent) |
| Solicitors Self-represented (Appellant) ACT Government Solicitor (Respondent) | |
File Number: | SCA 70 of 2017 |
Decision under appeal: | Court/Tribunal: ACT Civil and Administrative Tribunal Before: President G Neate and Member R Davies Date of Decision: 8 September 2017 Case Title: In respect of [QA] D.O.B. [xx/xx/xxx] Court File Number: MH 66 of 2011 |
MOSSOP J:
Introduction
This is an appeal brought pursuant to s 267 of the Mental Health Act 2015 (ACT) (‘MH Act’) from a decision of the ACT Civil and Administrative Tribunal (‘ACAT’) to make a Psychiatric Treatment Order (‘PTO’) under s 58 of the MH Act. The appellant the subject of the order was self-represented.
The Notice of Appeal identified the order as:
8-Sep-2017 ACT Civil & Administrative Tribunal = treatment order = perjury
The grounds of the appeal are stated as follows:
The mental tribunal perjury me of Dr Angela L P.Z
The orders sought are:
ACT Civil & Administrative Tribunal perjury treatment order
Chronology
The history of proceedings in the ACAT are summarised as follows.
5 July 2017
Dr Joe Garside a senior career medical officer, psychiatry, employed with the City Mental Health Team makes an application for an assessment order under the MH Act.
13 July 2017
ACAT makes an assessment order requiring the appellant to attend the City Mental Health Service on 20 July 2017 for the purposes of a mental health assessment.
27 July 2017
Dr Garside reports to ACAT that the appellant had not attended City Mental Health on two occasions and enquiring as to whether there was another order that had been made to allow her to be involuntarily taken to hospital.
27 July 2017
The involuntary detention of the appellant is authorised under s 85 of the MH Act for a period not exceeding three days.
28 July 2017
An application is made to ACAT under s 85(2) of the MH Act for an extension of the emergency detention of the appellant.
28 July 2017
The ACAT makes an order that the appellant be detained for a further period of 11 days expiring on 10 August 2017.
7 August 2017
Upon a review of the emergency detention the ACAT orders that the appellant’s application for relief is refused. The Tribunal is satisfied that the orders of 28 July 2017 were and remain correctly made.
8 August 2017
Dr Bernadette Murphy, a psychiatrist with the ACT government, reports upon the appellant’s mental condition to the ACAT.
10 August 2017
Following a hearing, the ACAT orders:
1. The Tribunal makes a PTO in relation to [QA].
2. [QA] must comply with any determination made by the Chief Psychiatrist or delegate under s 62 of the MH Act 2015.
3. Unless sooner revoked, this order has effect for 6 months.
The Tribunal also noted that the order would be reviewed on its own motion prior to expiry.
10 August 2017
The appellant filed an appeal from the decision to the Appeal Tribunal of the ACAT.
28 August 2017
The ACAT ordered that there be a review of the PTO dated 10 August 2017 and that the hearing of the internal appeal was adjourned.
1 September 2017
Dr Darren Cowley a locum psychiatrist at the ACT Government Adult Mental Health Day Service reports to the ACAT.
8 September 2017
In the original proceedings the ACAT made the following orders:
1. The Tribunal makes a PTO in relation to [QA].
2. [QA] must comply with any determination made by the Chief Psychiatrist or delegate under section 62 of the Mental Health Act 2015.
3. Unless sooner revoked, this order has effect for 6 months.
The Tribunal also noted that the order would be reviewed on its own motion prior to expiry.
8 September 2017
In the internal appeal proceedings the Tribunal noted that it had reviewed the PTO dated 10 August 2017 and made a PTO and then ordered that the appeal be dismissed.
What decision has been appealed?
Under s 267 of the MH Act an appeal may be brought against “a decision of the ACAT in a proceeding”. In contrast to an appeal under s 86 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) appeals are not linked to decisions of the ACAT appeal tribunal. In the present case, given that the substantive order is the PTO made on 8 September 2017 after review under s 79 of the MH Act of the order made on 10 August 2017, the appeal is best treated as an appeal against that decision.
Medical evidence before the ACAT
The application for an assessment order dated 5 July 2017 recorded Dr Garside’s opinion that the appellant suffered from a mental illness or mental disorder. His report includes the following matters:
(a)The appellant has been treated for schizophrenia for a number of years.
(b)Because of poor medication-compliance and lack of decision-making capacity she was managed with the assistance of sequential PTOs from March 2011 to December 2016.
(c)An order was sought in December 2016 but not granted by the ACAT because the appellant insisted that she would comply with prescribed antipsychotic medication.
(d)Since the PTO lapsed in December 2016 the appellant has ceased medication and last had an injection of olanzapine depot in December 2016.
(e)Over the years her mental illness has contributed to periods of personal neglect and damage to her reputation as she has repeatedly complained to agencies such as ASIO and the AFP about them interfering in her life. She has complained of Australia being invaded by Chinese and Japanese armies. She has insisted people enter her house and poison her food. She has claimed that she has invented a new formula for food. She has reported auditory and visual hallucinations.
(f)She has deteriorated over the last months. In June her son contacted City Mental Health with concerns for his mother. He contacted City Mental Health again in July 2017. Her son described the nature of her delusions and reported that she does not typically openly reveal her delusions when she is being treated. He expressed concerns that his mother was deteriorating.
(g)She has been known to ACT Mental Health Services for at least 20 years and has required psychiatric admissions since at least the early 1990s. Her last admission was in 2011.
(h)She has previously been treated with regular depot injections of zuclopenthixol. This was changed in 2016 to olanzapine.
The application recorded Dr Garside’s opinion that there was an actual or potential risk to the appellant’s own health and safety. It recorded that it was not known whether she was likely to cause serious harm to others.
The document recording the authorisation of her involuntary detention completed on 27 July 2017 records the basis of the decision as follows:
59 yo Chinese Female Schizophrenia.
Disengaged from City Mental Health team since Dec 2017.
On assessment order. Quite Psychotic, insightless, grandiose, with persecutory delusions. She pushed her partner, who is in his 80 at home, believing that she is monitored at home.
The most detailed evidence is the report prepared for the ACAT by Dr Bernadette Murphy, a psychiatrist. That report includes the following matters:
(a)It records the history of the psychiatric treatment order being allowed to lapse.
(b)It records:
In summary her family have reported concerns during the last few months that her mental health has declined. She has been paranoid at home, reporting that people are listening to her and so she cannot talk to her son. She has been sending emails to her son and other members of the family talking about the Chinese Army and telling them how to respond if they attacked. She has been grandiose, talking about her vast wealth and inventions. She is reported to have pushed her 81 year old partner aggressively in the weeks prior to admission.
(c)The presentation of the appellant is described as follows:
On initial assessment she was angry and guarded. She was paranoid about the intentions of her community psychiatrist claiming that he received money to admit her to hospital. She was shouting and noted to be talking to herself at times. She was transferred to [the Adult Mental Health Unit at the Canberra Hospital] where she has been since then. for the first few days she was very loud and irritable and frequently was reporting to be talking and shouting to herself in her room. She denied ever having mental illness and was grandiose in her claims of being able to cure cancer and her many inventions. She has been very reluctant to take any antipsychotic medication and has at times completely refused. She has remained angry and paranoid throughout her admission here. She has continued to express paranoid and grandiose delusions as listed below.
(d)The delusions are later described as follows:
She has grandiose delusions, believing that she has invented various things including diesel fuel, calcium for curing bones, a cure for baby colic all over the world and a cure for cancer. She became angry and defensive when these belief’s were questioned.
(e)A summary of her past history as recorded in notes from her community psychiatrist is set out.
(f)The report recorded the following in relation to her decision-making capacity:
3. Does the person, or can the person (with assistance if needed):
(a) Understand when a decision about treatment, care or support needs to be made? No
(b) Understand the fact that relate to the decision? No
(c) Understand the main choices? No
(d) Weigh up the consequences of the main choices? No
(e) Understand how the consequences affect the person? No
(f) On the basis of (a)-(e) make the decision? No
(g) Communicate the decision in whatever way the person can? No
(g)The overall assessment provided in the report was:
[QA] lacks decision-making capacity with regards to treatment of her mental illness. She does not believe that she has mental illness now or ever in the past. She is unable to understand the damage that mental illness is causing to herself and to her family. For these reasons she refuses to give consent for treatment.
…
She says that she doesn’t have mental illness and should not take medications for mental illness. She has refused to take adequate antipsychotic medication in hospital and has spit out medications or completely refused them at times.
(h)Dr Murphy records the reasons for her opinion that she was likely to do serious harm to herself or someone else because of her mental illness or mental disorder as follows:
There is a risk to her reputation, as she is contacting family members, politicians and ASIO to lobby them about her beliefs. There is risk of harm to her relationships with her family and possible physical risk of harm to her elderly partner.
(i)She records that:
There is a risk of further deterioration in her mental health as has occurred in the past when she has neglected her self care and been on the streets shouting at neighbours.
Dr Murphy proposed a six-month Psychiatric Treatment Order, restarting on depot neuroleptic medication, referral for a case manager and ongoing support from City Mental Health. She considered that if QA was taking regular antipsychotic medication it is likely that her psychotic/paranoid symptoms would decrease or disappear as has happened in the past.
Dr Murphy recorded her opinion that the treatment could not be adequately provided with less restriction of QA’s freedom of choice because “[QA] has no insight into her illness and has absolutely refused to engage with the mental health service or to take [any] psychiatric medications”.
Her report concluded:
[QA] is currently having a relapse of Schizophrenia and is in need of ongoing treatment with an effective dose of antipsychotic medication. She needs to be on a PTO to enable her to continue to receive adequate treatment.
The review report prepared by Dr Darren Cowley dated 1 September 2017 provides:
[QA] continues to display impaired insight into her illness, symptoms and need for ongoing treatment. She needs to remain on the PTO to ensure she receives this treatment. If she were not on the PTO she is unlikely to attend Doctor or Case-manager appointments and she would not continue her psychotropic medication.
In addition to the documents recording the history of proceedings in the ACAT sent by the registrar of the ACAT to the Supreme Court, eight other exhibits were tendered upon the hearing of the appeal. They were admitted by consent: MH Act s 267(2); Magistrates Court Act 1930 (ACT) s 214(3)(b); Grooms v Toohey [2012] ACTSC 28; 7 ACTLR 1 at [37](a)(ii) and [37](b)(iv). Each of these documents or collections of documents involved statements by the appellant. They are more properly considered to be submissions in support of the appeal but also provide evidence relevant to her state of mind. They contain statements which appear to a layperson to represent delusional thinking. The content of the documents is consistent with the nature of the paranoid and delusional thinking described in the medical evidence that was before the ACAT.
Submissions
The submissions made orally by the appellant were to the effect that she rejected the treatment order because she was not sick and instead was “healthy, normal and excellent”. She said she did five jobs every day and she did not have time to be mentally ill. She considered that the requirement to have the depot injection was “torture”.
She repeated orally some of the submissions contained in exhibits two to nine.
Counsel for the respondent usefully summarised the various complaints made by the appellant as follows:
(a)The findings of fact and the decision made by the Tribunal were not reasonably open to the Tribunal on the evidence before it.
(b)The Tribunal demonstrated bias and fell into error by accepting a bribe from a Chinese war criminal.
(c)The reasons given by the Tribunal amounted to perjury.
(d)The decision of the Tribunal fell into error in so far as it found that the condition of the appellant satisfied the definition of mental illness.
(e)The Tribunal erred in finding that the appellant lacked decision-making capacity.
(f)The Tribunal erred in finding that she was likely to harm herself.
(g)The Tribunal erred in finding that she was likely to suffer mental deterioration.
(h)The Tribunal erred by failing to take into account a relevant consideration, namely in Neate P’s refusal to accept the truth of the statements of the appellant.
(i)The Tribunal fell into error by failing to take into account a relevant consideration, namely that the Chinese “wanted to have treatment orders from mental Tribunal [because] they want China war continue in Australia”.
Consideration
An appeal under s 267 of the MH Act does not require leave. Where it is brought, the scope of the appeal is determined by r 5052 of the Court Procedures Rules 2006 (ACT). It is open to the court to confirm, amend or set aside the order under appeal, remit a case or make another order that the court considers appropriate: r 5052(1)(d)
When making the order appealed from, the Tribunal set out a brief statement of its reasons as follows:
(i)This statement sets out how [QA] meets the criteria for a psychiatric treatment order under section 58(2) of the Mental Health Act 2015. The findings in the statement are based on the information before the Tribunal and are made on the balance of probabilities.
(ii)[QA] has a mental illness because she has a condition that seriously impairs (either temporarily or permanently) her mental functioning in areas including thought, mood and perception which is characterised by the presence of symptoms including delusion.
(iii)[QA] does not have decision-making capacity to consent to the treatment, care or support because she cannot understand when a decision about her treatment, care or support needs to be made (the decision); she cannot understand the facts that relate to the decision; she cannot understand the main choices available to her in relation to the decision; she cannot weigh up the consequences of the main choices; she cannot understand how the consequences affect her; she cannot make the decision on the basis of the matters set out above; and she cannot communicate the decision in any way.
(iv)[QA] refuses the treatment determined in relation to herself because she does not reliably take all prescribed oral medication, she does not keep scheduled appointments to review her condition and treatment and she does not believe that she has a mental illness.
(v)The Tribunal believes on reasonable grounds that because of her mental illness, [QA] is likely to do serious harm to herself as a result of acting on her beliefs that result in risk to reputation or to someone else as a result of behaviour.
(vi)The Tribunal believes on reasonable grounds that because of her mental illness, [QA] is likely to suffer serious mental deterioration.
(vii)The Tribunal is satisfied that psychiatric treatment, care or support is likely to reduce the harm or deterioration mentioned above.
(viii)The Tribunal is satisfied that the treatment, care or support to be provided under the psychiatric treatment order cannot be adequately provided in another way that would involve less restriction of [QA’s] freedom of choice and movement.
The content of this statement closely tracks the requirements of s 58(2) for the making of a PTO.
(a)Paragraph (ii) addresses the requirement of s 58(2)(a). It follows the terms of the definition of mental illness in s 10 of the MH Act. There can be no doubt having regard to the medical evidence that was before the Tribunal that it was open to make a finding that the appellant had a mental illness.
(b)Paragraph (iii) addresses the requirement in s 58(2)(b)(i) that the person does not have decision-making capacity. The matters referred to in the paragraph are clearly supported by the evidence of Dr Murphy who specifically addressed those issues.
(c)Paragraph (iv) also addresses s 58(2)(b)(i) because it deals with her refusal to receive treatment. The finding in the paragraph is clearly justified by the evidence of Dr Murphy.
(d)Paragraphs (v) and (vi) address the requirements of s 58(2)(c). It is notable that sub paragraphs 58(2)(c)(i) and (ii) are alternatives so that only one needs to be established. However the findings of the Tribunal are that each is established. The Tribunal has proceeded on the basis that reputational harm may be sufficient to constitute a “serious harm” to herself. The term “harm” is not defined in the MH Act. The context in which the term is used does not indicate that it should be given a narrow meaning. I consider that the concept of harm can include reputational harm as well as considering the more common types of harm that might exist in cases such as this, namely physical or financial harm. Having regard to the evidence available to the Tribunal, the Tribunal had reasonable grounds for believing that the appellant was likely to do serious harm to herself. Similarly having regard to the evidence in relation to conduct directed to her partner the Tribunal had reasonable grounds for believing that she was likely to do serious harm to someone else.
(e)Similarly, having regard to the evidence about the deterioration of the appellant’s condition since she ceased taking her medication the Tribunal had reasonable grounds for the finding in paragraph (vi) that she was likely to suffer serious mental deterioration.
(f)The requirements of s 58(2)(d) are not addressed in the statement.
(g)Paragraph (vii) reflects the requirement of s 58(2)(e) and, in the light of the evidence was a finding that did not involve any error on the part of the Tribunal.
(h)Paragraph (viii) reflects the requirement of s 58(2)(g) and was clearly a state of satisfaction which was open to the Tribunal.
The statement of the Tribunal does not specifically address the requirement in s 58(2)(d) that the Tribunal be satisfied that the harm or deterioration or likely harm or deterioration is of such a serious nature that it outweighs the person’s right to refuse consent. However having regard to the nature of the evidence before the Tribunal it is clear that the Tribunal was so satisfied. In the event that I am wrong and the Tribunal failed to reach the state of satisfaction required by that paragraph, it is clear in the light of the evidence that it ought to have been so satisfied and I would be so satisfied. As a consequence the failure on the part of the Tribunal would not lead to the discharge of the PTO.
So far as the other matters raised by the appellant are concerned:
(a)there was no evidence of any bribes being given by a Chinese war criminal or anybody else to any relevant person and hence no basis for concluding that the decision of the Tribunal was affected by an apprehension of bias;
(b)The members of the ACAT were entitled to refuse to accept the truth of the appellant’s statements. It was clearly open (and in my view correct) for the members of the Tribunal to prefer the evidence of Dr Murphy to the statements of the appellant denying that she suffered from any mental illness.
(c)Similarly it did not involve a failure to take into account a relevant consideration the matters described at 18(i) above as there was no probative evidence of that fact and it was clearly a product of the delusional thinking of the appellant.
It is very clear both from the evidence and the submissions made by the appellant at the hearing of the appeal that she is very frustrated at the conclusions of the medical professionals and the ACAT that she suffers from a mental illness warranting what she considers to be very invasive orders. It is very apparent that she considers that she does not suffer from a mental illness. She is particularly frustrated that her explanations to both doctors and members of the Tribunal failed to persuade them that she does not suffer from a mental illness. It is apparent that (at least in her present state of mind) she will never accept the conclusion of the medical experts that she has a mental illness. However the evidence is such that the conclusion reached by the Tribunal is clearly correct. As a consequence the appeal must be dismissed. The respondent did not seek any order as to costs.
Orders
The orders of the Court are:
1.The appeal is dismissed.
2.No order as to costs.
| I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 20 October 2017 |