RD and MENTAL HEALTH REVIEW BOARD - [2013] WASAT 80

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: MENTAL HEALTH ACT 1996 (WA)

CITATION: RD and MENTAL HEALTH REVIEW BOARD [2013] WASAT 80

MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)

HEARD: 24 MAY 2013

DELIVERED : 7 JUNE 2013

FILE NO/S: MHA 5 of 2013

BETWEEN: RD
Applicant
AND
MENTAL HEALTH REVIEW BOARD
First Respondent
MINISTER FOR HEALTH INCORPORATED AS THE BOARD OF GRAYLANDS HOSPITAL
Second Respondent

Catchwords:

Mental health - Involuntary patient - Review of whether a person should continue to be an involuntary patient - Review of whether a person should continue to be detained in an authorised hospital as an involuntary patient - Preliminary issues - Whether order that the person continue to be detained in an authorised hospital as an involuntary patient for a further period is invalid - Order required to be made by a 'psychiatrist' - Order made by a person who was not a 'psychiatrist' as defined in the legislation at the date of the order - Whether subsequent order that the person continue to be detained in an authorised hospital as an involuntary patient for a further period is invalid - Whether Mental Health Review Board and Tribunal unable to carry out statutory task of review - Whether the person is an 'involuntary patient'

Legislation:

Mental Health Act 1996 (WA), s 3, s 5, s 6(2), s 26, s 26(1), s 29(1), s 30, s 30(1), s 30(3), s 31(1), s 36, s 37, s 43, s 43(2), s 43(2)(a), s 45, s 48(1), s 48(2), s 48(3), s 49, s 49(3), s 50, s 50(1), s 50(2), s 54, s 54(b), s 68(1), s 69, s 69(1), s 70, s 70(1), s 73, s 137, s 138, s 139, s 141(a), s 141(b), s 142, s 142(1)(a), s 142(1)(b), s 144, s 145, s 145(1), s 145(2), s 148A(1), s 148B(1), s 212, Pt 6 Div 2, Pt 6 Div 2A
Mental Health Amendment (Psychiatrists) Act 2012 (WA), s 4
State Administrative Tribunal Act 2004 (WA), s 47(1)(a), s 47(2), s 91, s 91(1), s 91(2)

Result:

Declaration that the order made on 6 December 2012 purportedly pursuant to s 49(3)(a) of the Mental Health Act 1996 (WA) that RD continue to be detained in an authorised hospital as an involuntary patient is invalid
Declaration that the order made on 1 March 2013 purportedly pursuant to s 50(2) and s 49(3)(a) of the Mental Health Act 1996 (WA) that RD continue to be detained in an authorised hospital as an involuntary patient is invalid
Decision of Mental Health Review Board made on 13 March 2013 that RD should continue to be an involuntary patient and that RD should continue to be detained in an authorised hospital as an involuntary patient set aside
Application for review otherwise dismissed pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA)

Summary of Tribunal's decision:

RD sought review by the Tribunal of the decision of the Mental Health Review Board that he should continue to be an involuntary patient and should continue to be detained in an authorised hospital as an involuntary patient. RD was initially detained at Graylands Hospital as an involuntary patient by an order of a psychiatrist for 28 days. Before the end of that period, another person, who was not a 'psychiatrist' as defined in s 3 of the Mental Health Act 1996 (WA), purported to make an order that RD continue to be detained at Graylands as an involuntary patient for a specified period. Before the end of that period, a psychiatrist purported to make an order that RD continue to be detained at Graylands as an involuntary patient for a further specified period. The Board subsequently purported to review whether RD should continue to be an involuntary patient and should continue to be detained in an authorised hospital as an involuntary patient.
RD contended and sought declarations from the Tribunal that the order purportedly made by the person who was not a 'psychiatrist' that he continue to be detained, and consequently the subsequent order that he continue to be detained, are each invalid, because an order that a person continue to be detained in an authorised hospital as an involuntary patient can only be made by a 'psychiatrist' as defined in s 3 of the Mental Health Act 1996. If these orders were invalid, then RD would not in fact be an involuntary patient and both the Board and the Tribunal would be unable to carry out their statutory task of review.
Applying the principles stated by the High Court of Australia in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 184 CLR 355 at [91], the Tribunal determined that the Mental Health Act 1996 discloses a legislative purpose to invalidate any order that a person continue to be detained in an authorised hospital as an involuntary patient that is not made by a 'psychiatrist' as defined in the Act. The Tribunal therefore declared that the order purportedly made by the person who was not a 'psychiatrist' is invalid.
The Tribunal also determined that, in consequence of the invalidity of this order, RD was not an 'involuntary patient', as defined in the Mental Health Act 1996 when he was subsequently examined by a psychiatrist and an order made by the psychiatrist that he continue to be detained as an involuntary patient. Applying the principles in Project Blue Sky Inc v Australian Broadcasting Authority, the Tribunal determined that the Mental Health Act 1996 discloses a legislative purpose to invalidate any order that a person continue to be detained in an authorised hospital as an involuntary patient made in respect of a person who is not an 'involuntary patient' as defined in the Act. The Tribunal therefore declared that the subsequent order is invalid.
It followed that RD was not an 'involuntary patient' as defined in the Mental Health Act 1996 at the time of the review by the Board and the Board was therefore unable to carry out the review. It also followed that the Tribunal is unable to carry out its statutory task of review. The Tribunal therefore set aside the decision of the Board and otherwise dismissed the application for review.

Category: B

Representation:

Counsel:

Applicant:     Mr SA Walker with Ms D Perkins
First Respondent           :     No Appearance
Second Respondent       :     Ms LA Eddy with Ms AE Johnson

Solicitors:

Applicant:     Mental Health Law Centre (WA) Inc
First Respondent           :     State Solicitor for Western Australia
Second Respondent       :     State Solicitor for Western Australia

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

LS v Mental Health Review Board [2013] WASCA 128
Murray and Anor v Director General, Health and Community Services Victoria (unreported, Supreme Court of Victoria (Eames J), 23 June 1995)
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 184 CLR 355

REASONS FOR DECISION OF THE TRIBUNAL:

Preliminary issues

RD seeks review by the Tribunal of the decision made by the Mental Health Review Board on 13 March 2013 that RD should continue to be an involuntary patient and should continue to be detained in an authorised hospital as an involuntary patient. The Board found that RD suffers from a mental illness, namely Bipolar Affective Disorder, and had 12 previous admissions to Graylands Hospital prior to his most recent detention as an involuntary patient at Graylands on 8 November 2012 in accordance with an order made by Dr O pursuant to s 43(2)(a) of the Mental Health Act 1996 (WA) (MH Act). The Board also found that RD requires treatment which can only be provided through detention in an authorised hospital in order to protect RD's reputation and relationships; that RD has a partial lack of insight into his medical condition and required treatment, and has been noncompliant in relation to medication; and that the required treatment cannot be adequately provided in a less restrictive way than would result from RD being an involuntary patient. The Board concluded that 'the involuntary treatment order should be continued': at [32] of the Board's written reasons for decision dated 6 April 2013 (Board's reasons).
The order made by Dr O pursuant to s 43(2)(a) of the MH Act that RD be detained in an authorised hospital as an involuntary patient specified that RD's detention was for a period ending at 11.59 pm on 6 December 2012, which was the maximum 28 day period possible under s 48(2) of the MH Act. On 6 December 2012, Dr S purported to make the following order in relation to RD pursuant to s 49(3)(a) of the MH Act:
I have examined the patient and, having regard to section 26 of the [MH Act], order that the patient continue to be detained in [Graylands] as an involuntary patient [until 11.59 pm on 3 March 2013].
On 1 March 2013, Dr P purported to make the following order in relation to RD pursuant to s 50(2) and s 49(3)(a) of the MH Act:
I have examined the patient and, having regard to section 26 of the [MH Act], order that the patient continue to be detained in [Graylands] as an involuntary patient [until 11.59 pm on 1 September 2013].
At the hearing before the Board on 13 March 2013, Ms D Perkins, counsel for RD, submitted that the order made by Dr S on 6 December 2012 is invalid because Dr S was a general practitioner, whereas an order under s 49(3)(a) of the MH Act can only be made by a 'psychiatrist' as defined in s 3 of the MH Act. The Board then adjourned 'to seek clarification on this point': at [3] of the Board's reasons. Paragraph [4] of the Board's reasons states as follows:
On resumption, the Board informed those present that it had received clarification from Dr P, Superintendent, that the medical practitioner in question, Dr S, was a registered psychiatrist under the Medical Board of WA until 15 January 2013. As such, the order for involuntary status made on 6 December 2012 was valid, and the subsequent order continuing involuntary status made on 1 March 2013 would also be valid. Ms Perkins accepted the information tabled and the hearing continued.
It is common ground between RD and the Minister for Health incorporated as the Board of Graylands Hospital (Minister) that, contrary to the finding made by the Board, Dr S was not in fact a 'psychiatrist' in accordance with the definition of that term in s 3 of the MH Act at the time when he made the order on 6 December 2012 that RD continue to be detained in an authorised hospital as an involuntary patient. A new definition of 'psychiatrist' was substituted in s 3 of the MH Act by s 4 of the Mental Health Amendment (Psychiatrists) Act 2012 (WA) which commenced on 29 November 2012, about a week before Dr S made the order. Whereas, prior to 29 November 2012, the term 'psychiatrist' was defined in s 3 of the MH Act to mean 'a person whose name is contained in the register of specialist psychiatrists kept by the Medical Board of Australia under the Health Practitioner Regulation National Law (Western Australia) section 223', from that day onwards 'psychiatrist' means:
a medical practitioner -
(a)who is a fellow of the Royal Australian and New Zealand College of Psychiatrists; or
(b)who holds specialist registration under the Health Practitioner Regulation National Law (Western Australia) in the specialty of psychiatry; or
(c)who holds limited registration under the Health Practitioner Regulation National Law (Western Australia) that enables the medical practitioner to practise in the specialty of psychiatry;
On 21 May 2013, the President Justice Chaney ordered that a hearing before me on 24 May 2013 'is confined to determination of the preliminary question as to the consequences of the agreed fact that at the time Dr [S] signed a continuation of involuntary patient order on 6 December 2012 he did not have the requisite authority to sign such an order as a psychiatrist under the [MH Act]'. At the commencement of the hearing on 24 May 2013, Mr SA Walker, who appeared with Ms D Perkins for RD, and Ms LA Eddy, who appeared with Ms AE Johnson for the Minister, agreed that the 'preliminary question' involves the following three preliminary issues for determination:
1.Whether the order made on 6 December 2012 purportedly pursuant to s 49(3)(a) of the MH Act that RD continue to be detained in an authorised hospital as an involuntary patient is invalid.
2.Whether the order made on 1 March 2013 purportedly pursuant to s 50(2) and s 49(3)(a) of the MH Act that RD continue to be detained in an authorised hospital as an involuntary patient is invalid.
3.Whether, in light of the determination of the foregoing issues, the Board was, and the Tribunal is, unable to review whether RD should continue to be an involuntary patient and should continue to be detained at an authorised hospital as an involuntary patient.
Mr Walker seeks declarations, pursuant to s 91 of the State Administrative Act 2004 (WA) (SAT Act), in relation to the first two preliminary issues. Section 91(1) of the SAT Act provides that the Tribunal may make a declaration concerning any matter in a proceeding instead of any orders it could make, or in addition to any orders it makes, in the proceeding. Section 91(2) of the SAT Act provides that the Tribunal's power to make a declaration under s 91(1) is exercisable only by a judicial member.
I will address the preliminary issues after referring to the legislative framework in the MH Act.

Legislative framework

In LS v Mental Health Review Board [2013] WASCA 128 (LS), Murphy JA, who delivered the principal judgment, recently provided a comprehensive survey of provisions of the MH Act in relation to involuntary patients, review of involuntary patient orders by the Board, and review proceedings in the Tribunal. However, for ease of reference, I will refer to the key elements of the legislative framework in the MH Act for the purposes of the preliminary issues.
Section 5 of the MH Act sets out the following inclusive statement of the objects of the Act:
The objects of this Act include -
(a)to ensure that persons having 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; and
(b)to ensure the proper protection of patients as well as the public; and
(c)to minimize the adverse effects of mental illness on family life.
Section 6(2) of the MH Act requires that any person performing a function under the MH Act, including the Board and the Tribunal, 'is to seek to ensure that the objects of this Act are achieved so far as it is relevant to the performance of his or her functions under this Act'.
The term 'involuntary patient' is defined in s 3 of the MH Act as follows:
involuntary patient means a person who is for the time being the subject of -
(a)an order under section 43(2)(a), 49(3)(a), 50 or 70(1) for detention of the person in an authorised hospital as an involuntary patient; or
(b)a community treatment order;
Section 26 of the MH Act is an important provision which limits and circumscribes the category of persons who can become involuntary patients under the Act. Section 26 is in the following terms:
(1)A person should be an involuntary patient only if -
(a)the person has a mental illness requiring treatment; and
(b)the treatment can be provided through detention in an authorised hospital or through a community treatment order and is required to be so provided in order -
(i)to protect the health or safety of that person or any other person; or
(ii)to protect the person from selfinflicted harm of a kind described in subsection (2); or
(iii)to prevent the person doing serious damage to any property;
and
(c)the person has refused or, due to the nature of the mental illness, is unable to consent to the treatment; and
(d)the treatment cannot be adequately provided in a way that would involve less restriction of the freedom of choice and movement of the person than would result from the person being an involuntary patient.
(2)The kinds of selfinflicted harm from which a person may be protected by making the person an involuntary patient are -
(a)serious financial harm; and
(b)lasting or irreparable harm to any important personal relationship resulting from damage to the reputation of the person among those with whom the person has such relationships; and
(c)serious damage to the reputation of the person.
Section 29(1) of the MH Act provides, subject to an immaterial exception, that 'a medical practitioner or an authorised mental health practitioner who suspects on reasonable grounds that a person should be made an involuntary patient may refer the person for examination by a psychiatrist'. Section 31(1) of the MH Act provides that '[a] referrer is not to refer a person under section 29 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'.
Section 36 of the MH Act provides that a person who is referred under s 29 for examination by a psychiatrist in an authorised hospital is to be received into the hospital and may be detained there for up to 24 hours (s 36(1)), but the person may not be received more than seven days after the referral was made (s 36(2)) and may not be detained any longer if the person has not been examined by a psychiatrist within 24 hours of the time of reception (s 36(4)). Section 37 of the MH Act provides that a psychiatrist who examines a person received into an authorised hospital under s 36 may make an order under s 43 (s 37(1)(a)), or may make an order that the person's detention continue for further assessment of whether an order should be made under s 43 for up to 72 hours after the person was received into the hospital (s 37(1)(b) and s 37(2)), or may decide not to make an order under the Act (s 37(1)(c)).
Section 43(2) of the MH Act provides that where a psychiatrist examines a person who, among other circumstances, has been received into an authorised hospital under s 36:
The psychiatrist may if he or she believes that, having regard to section 26, the person should be made an involuntary patient, either -
(a)order in writing that the person -
(i)be detained in an authorised hospital as an involuntary patient; and
(ii)be admitted for that purpose;
or
(b)make a community treatment order in respect of the person.
Section 45 of the MH Act provides as follows:
An order that a person be received into or admitted to an authorised hospital and detained there authorises -
(a)the reception of the person into or his or her admission to any authorised hospital that a psychiatrist considers to be suitable; and
(b)the detention of the person at that hospital.
Section 48(1) of the MH Act provides that an order under s 43(2)(a) 'authorises the detention of the person for a period ending on a day specified in the order' and s 48(2) prescribes a maximum period of 28 days for an order under s 43(2)(a). Section 48(3) states as follows:
The order authorises the detention of the person until -
(a)the end of the day specified in the order; or
(b)it is ordered that the person is no longer an involuntary patient; or
(c)the person becomes the subject of a community treatment order,
whichever is first.
Sections 49 and 50 of the MH Act are in the following terms:
49. Examination of patient within s. 48's detention period
(1)The treating psychiatrist is to ensure that an involuntary patient is again examined by a psychiatrist before the end of the period of detention specified under section 48.
(2)If on examining the person, and having regard to section 26, the psychiatrist does not believe that the person should continue to be an involuntary patient, the psychiatrist is to immediately order that the person is no longer an involuntary patient.
(3)If on examining the person, and having regard to section 26, the psychiatrist believes that the person should continue to be an involuntary patient, the psychiatrist may either -
(a)order that the person continue to be detained as an involuntary patient for a further period ending on a day specified in the order; or
(b)make a community treatment order in respect of the person.
(4)A period specified under subsection (3)(a) cannot end more than 6 months after the order is made.
50. Examinations within subsequent periods
(1)The treating psychiatrist is to ensure that an involuntary patient who is detained is again examined by a psychiatrist before the end of the period of detention specified under section 49(3)(a).
(2)The powers in section 49(2) and (3) are also exercisable on the occasion of that examination.
(3)Subsections (1) and (2) apply in respect of each successive period of detention so as to ensure that -
(a)the patient is again examined before the end of each such successive period; and
(b)the powers in section 49(2) and (3) are exercisable on each occasion.

Section 54 of the MH Act requires that when a period of detention of a person at an authorised hospital under the Act ends, the person is to be informed in writing of that fact as soon as practicable after the period ends and 'unless the person is further detained in the hospital under this Act, is to be permitted to leave the hospital' (s 54(b)).
Finally, Div 2 of Pt 6 of the MH Act concerns reviews and inquires by the Board and Div 2A of Pt 6 of the MH Act concerns applications to the Tribunal for review of decisions of the Board.
The Board must conduct a review of an order that a person be detained in an authorised hospital as an involuntary patient within the first eight weeks of the initial order where the person has been continuously an involuntary patient since the initial order (s 138); within every six month period thereafter where the patient has been continuously an involuntary patient since the last review (s 139); and when an application for review is received (s 142). The Board may also carry out a review of the case of any involuntary patient at any time if it considers it appropriate to do so because of any report or complaint it receives or for any other reason (s 144).
In this case, on 11 February 2013, RD's solicitors applied to the Board on his behalf for a review of RD's 'status as an involuntary patient'. This was, in substance, an application, pursuant to s 142(1)(a) and (b) of the MH Act, for review of:
(a)whether a person should continue to be an involuntary patient; [and]
(b)whether a person should continue to be detained in an authorised hospital as an involuntary patient;
Section 145(1) of the MH Act enables the Board, subject to the Act, to 'make such order in respect of a matter as it thinks appropriate'. Section 145(2) of the MH Act provides as follows:
Without limiting subsection (1) the Board may -
(a)order that the person is no longer an involuntary patient; or
(b)order that a community treatment order be made in respect of the person, giving such directions, if any, as it thinks fit in relation to the terms of the order; or
(c)if the person is the subject of a community treatment order, vary the order, and give such directions in relation to the order as it thinks fit.
Section 148A(1) of the MH Act confers a right of review by the Tribunal on a person in respect of whom the Board makes a decision or order who is dissatisfied with the decision or order. Section 148B(1) of the MH Act provides that, except in psychosurgical matters, 'for the purpose of exercising jurisdiction conferred under section 148A', the Tribunal is to include a person who is a legally qualified member, a person who is a psychiatrist (or a medical practitioner who is not a psychiatrist if a psychiatrist is not readily available and the proceedings do not involve anything that requires a clinical judgment to be made about a patient's treatment) and a person who is neither a legally qualified member nor a medical practitioner. However, as the preliminary issues in this case concern whether the Board was, and the Tribunal is, unable to review whether RD should continue to be an involuntary patient and should continue to be detained in an authorised hospital as an involuntary patient, rather than 'exercising jurisdiction conferred under section 148A', the preliminary question was listed for determination by a single judicial member.

Is the order made on 6 December 2012 that RD continue to be detained in an authorised hospital as an involuntary patient invalid?

As noted earlier, it is common ground between RD and the Minister that Dr S was not a 'psychiatrist' as defined in s 3 of the MH Act when, on 6 December 2012, he made the order that RD continue to be detained in an authorised hospital as an involuntary patient. The order made on 6 December 2012 is, therefore, in breach of the requirement in s 49(3) of the MH Act that any such order can only be made by a 'psychiatrist'. However, as McHugh, Gummow, Kirby and Hayne JJ held in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 184 CLR 355 (Project Blue Sky) at [91]:
An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue. [Citations omitted]
Mr Walker submits on behalf of RD that, on the application of the Project Blue Sky principles, the order made on 6 December 2012 that RD continue to be detained in an authorised hospital as an involuntary patient is invalid and a declaration to that effect should be made under s 91 of the SAT Act. In contrast, Ms Eddy submits on behalf of the Minister that, for essentially two reasons which I will refer to and address later, the application of the Project Blue Sky principles would lead to the conclusion that the order, while made in breach of a condition regulating the exercise of the power, is not invalid.
In my view, applying the Project Blue Sky principles, the MH Act discloses a legislative purpose to invalidate any order under s 49(3)(a) that an involuntary patient continue to be detained as an involuntary patient for a further period that fails to comply with the requirement that it be made by a 'psychiatrist' as defined in s 3. I have come to this view for four reasons.
First, the condition that an order under s 49(3)(a) may only be made by a 'psychiatrist' as defined in s 3 is a fundamental requirement under the legislation, because it ensures that a decision that the requirements of s 26 continue to be satisfied and that a person should continue to be deprived of their liberty and subjected to involuntary psychiatric treatment for reasons of their mental health can only be made by a person who is suitably qualified. Given the highly specialist nature of the decisionmaking and the significant consequences for the person who is made the subject of an order, it could not have been the intention of Parliament to permit simply anyone even any medical practitioner to validly make an order that a person continue to be detained in a an authorised hospital as an involuntary patient.
Secondly, the subject matter and the objects of the MH Act indicate an intention to invalidate an order under s 49(3)(a) made by someone who is not a 'psychiatrist' as defined in s 3. As noted earlier, under s 5, the objects of the MH Act include:
(a)to ensure that persons having 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; and
(b)to ensure the proper protection of patients as well as the public; and
(c)to minimize the adverse effects of mental illness on family life.
It has been said that a power such as the one conferred by s 49(3)(a) of the MH Act 'whilst not dissimilar to a penal power, is nevertheless beneficial and protective in character, the protection sought being as much that of the person concerned as the wider public': Murray and Anor v Director General, Health and Community Services Victoria (unreported, Supreme Court of Victoria (Eames J), 23 June 1995) at 36.
However, the beneficial and protective purpose of the legislation is not unconfined or unlimited. Indeed, as is apparent from the review of the legislative framework in the MH Act set out earlier in these reasons, the powers conferred by the legislation are tightly limited and highly circumscribed. This is necessary and appropriate given that the legislation authorises significant deprivation of liberty and involuntary medication and other psychiatric treatment which, absent legislative authority, may constitute civil wrongs or even criminal offences. Moreover, as is made explicit in object (a) of the MH Act, while the legislation seeks to ensure that persons having a mental illness receive the best care and treatment, this is to occur with 'the least restriction of their freedom and the least interference with their rights and dignity'.
The subject matter and objects of the legislation manifest as intention that the requirements for the detention of a person in an authorised hospital as an involuntary patient should be complied with strictly as the Parliament has legislated in order for the detention to be valid.
Thirdly, the potential adverse consequences of a person with mental illness being discharged from an authorised hospital, because the detention order is invalid, are significantly mitigated by s 30 of the MH Act. Section 30(1) of the MH Act states that s 29 (under which a medical practitioner or an authorised mental health practitioner who suspects on reasonable grounds that a person should be made an involuntary patient may refer the person for examination by a psychiatrist) extends to a case 'where a person who is a patient in an authorised hospital, other than an involuntary patient or a mentally impaired accused, seeks to be discharged from the hospital and a psychiatrist is not available to examine the person'. Section 30(3) of the MH Act states that:
If a senior mental health practitioner suspects on reasonable grounds that the person should be examined for the purposes of section 29 he or she may in writing order that the person be detained at the hospital for up to 6 hours from the time when the person seeks to be discharged.
Section 30 of the MH Act enables a medical practitioner or an authorised mental health practitioner to refer a voluntary patient who seeks to be discharged from a hospital for examination by a psychiatrist and a senior mental health practitioner to order the detention of the patient for up to six hours to enable the patient to be examined by a psychiatrist. This would include circumstances in which an order under s 49(3)(a) of the MH Act is invalid and the person the subject of the order seeks to be discharged from the hospital. The hospital therefore has effective means to ensure that a person invalidly detained under s 49(3)(a) is not simply released into the community without being examined by a psychiatrist. Upon examining the patient, the psychiatrist may if he or she believes that, having regard to s 26, the patient should be made an involuntary patient, make a detention order or a community treatment order under s 43(2)(a). In terms of the language in Project Blue Sky, 'the consequences for the parties [and the community] of holding void every act done in breach of the condition' supports a legislative purpose to invalidate an order under s 49(3)(a) by a person who is not a 'psychiatrist'.
Fourthly, s 212(2) of the MH Act provides that where there is a 'formal defect' in a referral or order, 'the performance of any function under this Act on the basis of the referral or order is not affected but the person performing the function may require the person who made the referral or order to rectify it'. Section 212(2) defines a 'formal defect' for the purposes of s 212 as 'a clerical error or an error arising from any accidental omission' or 'an evident material error in the description of any person'. Section 212(3) states that, even if the referral or order is not rectified as required, 'nothing that has been done in reliance on it is affected'. The Parliament has therefore considered what should follow from a breach of the legislation in relation to an order and has declared that a 'formal defect' does not invalidate any order. Although the Parliament has not said so expressly, this gives rise to an implication that other, more significant defects invalidate orders under the MH Act.
As noted earlier, Ms Eddy submits that the order made on 6 December 2012 is not invalid for essentially two reasons.
First, Ms Eddy submits that an order that a person be detained in an authorised hospital as an involuntary patient remains effective (and valid) after the period of detention specified in the order. She emphasises the word 'authorises' in s 48(1) of the MH Act ('[a]n order under section 43(2)(a) or 70(1) authorises the detention of the person for a period ending on a day specified in the order') (emphasis added) and contrasts this language with the use of the word 'effect' in the Act in relation to community treatment orders. Section 69(1) of the MH Act provides that a community treatment order 'does not have effect', (emphasis added) unless it is confirmed within 72 hours, and s 73 of the MH Act provides that a community treatment order 'has effect until' (emphasis added) one of five events occurs. Ms Eddy submits that the different language indicates Parliament's intention that, whereas a community treatment order ceases to have effect (or validity) in certain circumstances, a detention order does not cease to have effect (or validity) if there is a noncompliance with a condition regulating the exercise of the power. She also submits that this different treatment of community treatment orders and detention orders 'makes sense', because a person the subject of a community treatment order is unlikely to be at such a high point of danger to themself and others as a person the subject of a detention order.
I do not accept Ms Eddy's first submission for several reasons. First, even if a detention order remains effective (and valid) after the period specified in the order, that would not mean that it remains effective (and valid) if there is a breach of another condition regulating the exercise of the power, such as the fundamental requirement that an order can only be made by a 'psychiatrist'.
Secondly, and in any case, it is clear from the definition of 'involuntary patient' in s 3 of the MH Act (see [12] above) that a detention order does not remain effective after the period specified in the order. An 'involuntary patient' means 'a person who is for the time being the subject of … an order under section 43(2)(a), 49(3)(a), 50 or 70(1) for detention of the person in an authorised hospital as an involuntary patient' (emphasis added) or a community treatment order. While a patient may remain in a hospital after the period specified in a detention order, they do so as a voluntary patient, rather than in accordance with the detention order.
Thirdly, as Mr Walker submits, the difference in language between s 48 ('authorises') and s 69(1)/s 73 ('effect') is readily explicable by the difference between what detention orders and community treatment orders do a detention order 'authorises' detention in an authorised hospital whereas a community treatment order is required to specify a number of things set out in s 68(1) of the MH Act, including 'a treatment plan outlining the treatment that the patient is to receive under the order'. As Parliament could not employ a single word in relation to community treatment orders, in contrast to detention orders, it used the word 'effect'.
Finally, as Mr Walker also submits, given that the interference with a person's civil rights and liberties is likely to be significantly greater in the case of a detention order than a community treatment order, it 'makes no sense' for Parliament to intend that irregularities have greater effect for a community treatment order than for a detention order.
Ms Eddy's second submission is that, having regard to the objects of the MH Act in s 5 and the requirement for the formation of a qualified opinion by a psychiatrist under s 26 of the MH Act in order for a person to become an involuntary patient, it 'makes sense' that Parliament would not intend that a failure to comply with a condition for the continuation of detention of an involuntary patient would invalidate an order that the person continue to be detained.
However, the MH Act only authorises detention for a limited period, requires further examination by a psychiatrist within that period, and requires periodic review by the Board, because a person's psychiatric condition is likely to vary over time, particularly as medication and other treatment is administered. The fact that a psychiatrist formed a qualified opinion previously that a person should be detained in an authorised hospital as an involuntary patient does not indicate a legislative intention not to invalidate a subsequent order made by a person who is not a 'psychiatrist'. Indeed, to the contrary, because the Act limits the period of detention and requires further examination by a 'psychiatrist' within that period, the fact that a patient is not examined by a 'psychiatrist' and that a person who is not a 'psychiatrist' purports to make an order for continued detention strongly indicates that the further order is intended to be invalid.
Finally, I note that in LS, Murphy JA expressed a 'preliminary view … that it is doubtful that the Board … has the power to determine the "validity" of previous involuntary patient orders' (at [123]). His Honour reasoned as follows:
… Such a determination would have a judicial character. A person is an 'involuntary patient' as defined in s 3 if they are the subject of an involuntary patient order. The Board must find that such an order has been made in fact, before deciding whether or not to 'continue' it under s 138(1) or s 139(1). It seems to me that it is the fact that an order has been made against the person, and not the Board's view as to its 'validity', which is relevant. … ([123])
His Honour added in parentheses:
My view is preliminary because the question of whether the Board has any power to review the 'validity' of previous involuntary patient orders only emerged orally at the hearing in the course of the appellant's submissions. Neither party provided written submissions on the topic and it was not properly debated before this court. ([123])
Buss JA observed at [20] that 'it is unnecessary to express an opinion as to whether the Board, in any event, has power to determine the "validity" of previous involuntary patient orders' and reserved his 'position on that question'. Similarly, Newnes JA reserved 'for another occasion the question whether the Board has the power to determine the validity of previous involuntary patient orders' ([23]).
Murphy JA's preliminary view was not directed to the powers of the Tribunal in the context of determining whether the Board was, and the Tribunal is, unable to carry out a review because the person seeking review is not an involuntary patient. In my view, the Tribunal has the power to determine as a preliminary issue whether the order made on 6 December 2012 that RD continue to be detained in an authorised hospital as an involuntary patient is invalid in the context of determining whether the Board was, and the Tribunal is, unable to carry out the statutory task of review.
It follows that the order purportedly made on 6 December 2012 pursuant to s 49(3)(a) of the MH Act that RD continue to be detained in an authorised hospital as an involuntary patient is invalid. A declaration to this effect should be made.

Is the order made on 1 March 2013 that RD continue to be detained in an authorised hospital as an involuntary patient invalid?

Mr Walker submits that invalidity of the order made on 6 December 2012 renders the order made on 1 March 2013 invalid, even though RD does not contest that Dr P was a 'psychiatrist' as defined in s 3 of the MH Act on 1 March 2013.

Ms Eddy submits that, even if the order of 6 December 2012 is invalid, the order of 1 March 2013 is nevertheless valid for two reasons. First, because RD remained an 'involuntary patient', as defined in s 3 of the MH Act, in consequence of the initial order made under s 43(2)(a) of the MH Act on 8 November 2012, even though the detention after 6 December 2012 was 'unauthorised'. Second, because s 50(2) of the MH Act states that the powers in s 49(3) 'are exercisable on the occasion' of each examination under s 50(1). Ms Eddy submits that if an examination is arranged by a treating psychiatrist under s 50(1), then, on examining the person, and having regard to s 26, if the psychiatrist believes that the person should continue to be an involuntary patient, the psychiatrist may order that the person continue to be detained as an involuntary patient for a further period specified in the order.
In my view, the invalidity of the order made on 6 December 2012 has the consequence that the order made on 1 March 2013 is also invalid. This is because an order can only be made under s 50(2) and s 49(3)(a) of the MH Act that a person 'continue to be detained as an involuntary patient for a further period' (s 49(3)(a)) where the person is 'an involuntary patient who is detained' (s 50(1)). Because of the invalidity of the order made on 6 December 2012, RD was not an 'involuntary patient', as defined in s 3 of the MH Act, after 11.59 pm on 6 December 2012, and was therefore not an 'involuntary patient' on 1 March 2013, because he was not 'a person who is for the time being the subject of' a detention order or a community treatment order. Applying the principles in Project Blue Sky, the MH Act discloses a legislative intention to invalidate any order that a person continue to be detained in an authorised hospital as an involuntary patient made in respect of a person who is not an 'involuntary patient', as defined in s 3, of the MH Act, for four reasons, namely:
(1)The condition that an order under s 50(2) and s 49(3)(a) may only be made in respect of an 'involuntary patient' as defined in s 3 is a fundamental requirement under the legislation;
(2)The subject matter and objects of the legislation discussed at [30] [33] above in relation to preliminary issue 1;
(3)The potential adverse consequences of invalidity are significantly mitigated by s 30 of the MH Act as discussed at [34] [35] above in relation to preliminary issue 1; and
(4)The implication from s 212 of the MH Act discussed at [36] above in relation to preliminary issue 1.
I do not accept Ms Eddy's first submission, because RD was not, on 1 March 2013, 'a person who is for the time being the subject of' a detention order or a community treatment order and therefore an 'involuntary patient' under the definition of that term in s 3. RD was the subject of the initial detention order made on 8 November 2012 until 11.59 pm on 6 December 2012. Thereafter, he was not the subject of any valid detention order.
I do not accept Ms Eddy's second submission, because the treating psychiatrist may only ensure that 'an involuntary patient who is detained' is again examined (s 50(1)). As RD was not 'an involuntary patient', the examination under s 50(1) and s 50(2) was not authorised and the power under s 49(3) could not be exercised. Moreover, the power under s 49(3)(a) can only be exercised if the person whose detention is continued is, at the time of the order continuing their detention, 'an involuntary patient'. The power could not be exercised in this case.
It follows that the order purportedly made on 1 March 2013, pursuant to s 50(2) and s 49(3)(a) of the MH Act that RD continue to be detained in an authorised hospital as an involuntary patient is invalid. A declaration to this effect should be made.

Was the Board, and is the Tribunal, unable to carry out a review in this case?

It follows from the determination of the first two preliminary issues that RD was not, at the time of the review by the Board on 13 March 2013, an 'involuntary patient' as defined in s 3 of the MH Act, because he was not 'a person for the time being the subject of … an order under section 43(2)(a), s 49(3)(a), s 50 or s 70(1) for detention of the person in an authorised hospital as an involuntary patient' or a community treatment order. The Board was therefore unable to carry out its statutory task of review, pursuant to s 142(1)(a) and s 142(1)(b) of the MH Act, of whether RD 'should continue to be an involuntary patient' and 'should continue to be detained in an authorised hospital as an involuntary patient': LS at [131] [135] (Murphy JA with whom Newnes JA agreed at [33]) and at [16] - [17] (Buss JA who agreed with Murphy JA's reasons at [131] [133] and who expressed himself in terms that where a person ceases to be an involuntary patient before the Tribunal carries out a review of the Board's decision, '[a] prerequisite to the Tribunal's authority to undertake a review of the Board's decision (namely, the [person's] continuing status as an involuntary patient) was no longer satisfied').
As the Board made a decision that RD should continue to be an involuntary patient and should continue to be detained in an authorised hospital as an involuntary patient, and as RD is dissatisfied with the Board's decision, RD has invoked the Tribunal's review jurisdiction under s 148A(1) of the MH Act. Because the Board made its decision in circumstances where it was not authorised to do so, it is appropriate to make an order setting aside the Board's decision.
Like the Board, the Tribunal is unable to carry out a review of whether RD should continue to be an involuntary patient and should continue to be detained in an authorised hospital as an involuntary patient, because RD is not an involuntary patient. It follows that the proceeding should be otherwise dismissed pursuant to s 47(2) of the SAT Act, because it is 'misconceived or lacking in substance' within the meaning of s 47(1)(a) of the SAT Act.

Further decision of the Board

At the hearing on 24 May 2013, the parties informed me that, on 8 May 2013, the Board again purported to review RD's case and that his 'status [was] maintained'. RD has not sought review of the decision made on 8 May 2013 and the Tribunal's jurisdiction has therefore not been invoked in relation to it. However, it follows from my reasons that the Board made its further decision on 8 May 2013 in circumstances where it was not authorised to do so.

Orders

I make the following orders:
1.The Tribunal declares that the order purportedly made on 6 December 2012 pursuant to s 49(3)(a) of the Mental Health Act 1996 (WA) that RD continue to be detained in an authorised hospital as an involuntary patient is invalid.
2.The Tribunal declares that the order purportedly made on 1 March 2013 pursuant to s 50(2) and s 49(3)(a) of the Mental Health Act 1996 (WA) that RD continue to be detained in an authorised hospital as an involuntary patient is invalid.
3.The decision made by the first respondent on 13 March 2013 that RD should continue to be an involuntary patient and that RD should continue to be detained in an authorised hospital as an involuntary patient is set aside.
4.Pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA) the proceeding is otherwise dismissed as misconceived or lacking in substance.

I certify that this and the preceding [60] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE D R PARRY, DEPUTY PRESIDENT