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Re J (No. 2)

Re J (No. 2)

Case [2011] NSWSC 1224 15 September 2011

Involuntary Detention

Mental Illness

Protection from Harm

Least Restrictive Care

Appeal

Mental Health Review Tribunal

Mental Health Law

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Supreme Court

New South Wales

Medium Neutral Citation: Re J (No. 2) [2011] NSWSC 1224
Hearing dates: 14 and 15 September 2011
Decision date: 15 September 2011
Jurisdiction: Equity Division - Protective List
Before: White J
Decision:
Refer to paras [115], [123] and [124] of judgment.

Catchwords: MENTAL HEALTH - involuntary detention at mental health facility - appeal from Mental Health Review Tribunal - where plaintiff suffers from mental illness - whether plaintiff by reason of mental illness needs protection from "serious harm" - whether involuntary detention least restrictive care - where continued involuntary detention of the plaintiff is sought to be justified on ground that he might suffer financial harm as a result of his mental illness - involuntary detention is to be a measure of last resort to protect from harm - protection from financial harm could have been provided by a financial management order - plaintiff not found to be incapable of managing his affairs - necessary to consider the extent to which mental illness was a harm for plaintiff and assess its seriousness - appeal allowed - order that plaintiff be discharged from mental health facility
Legislation Cited: Mental Health Act 2007
NSW Trustee and Guardian Act 2009
Guardianship Act 1937
Guardianship Act 1987
Mental Health Act 1990
Mental Health Amendment Act 1997
Mental Health Legislative Amendment Act 1997
Cases Cited: M v K (Supreme Court of New South Wales, Powell J, 24 April 1989, unreported)
Application of O'Hara; Re M [1999] NSWSC 209
FA v the Protective Commissioner [2009] NSWSC 415
Category: Principal judgment
Parties: J (Plaintiff)
South Eastern Sydney Local Area Health Service (1st Defendant)
Mental Health Review Tribunal (2nd Defendant)
Representation: J Bartos (Plaintiff)
J McDonnell, solicitor (Defendant)
David Begg & Associates (Plaintiff)
Crown Solicitor's Office (Defendant)

File Number(s): 2011/291580

Judgment

HIS HONOUR : This morning I ordered that the Medical Superintendent of the Kiloh facility at the Prince of Wales Hospital at which the plaintiff is detained, or someone on behalf of Medical Superintendent, bring the plaintiff to court this afternoon for examination by me. I did so to ascertain whether or not the plaintiff wished these proceedings to be brought, as they have been, by the lawyers retained by him.

As I said in my reasons this morning, the plaintiff had signed a document advising that he did not wish to engage the solicitor, Ms Berntsen, to act in reference to matters pertaining to his hospitalisation. But there was evidence from the plaintiff's solicitor that notwithstanding what the plaintiff wrote, he did wish his lawyers to bring this proceeding.

This afternoon the plaintiff has confirmed to me that he understands that the proceeding is one brought to seek an order for him to be released from the facility. He has confirmed that he had instructed the lawyers who appear for him to act on his behalf, and that the application that has been made is in accordance with his wishes.

I asked him why he signed the document withdrawing his instructions.…

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 Re J (No. 2)

Details

AGLC: Re J (No. 2) [2011] NSWSC 1224
Case: [2011] NSWSC 1224
Decision Date: 15 September 2011

CaseChat Overview and Summary

The appellant, a person suffering from a mental illness, appealed against a decision of the Mental Health Review Tribunal to continue his involuntary detention in a mental health facility. The Tribunal had found that the appellant needed protection from serious harm by reason of his mental illness, and that involuntary detention was the least restrictive care. The respondent, the Minister for Health, sought to justify the continued detention on the ground that the appellant might suffer financial harm as a result of his mental illness. The appellant argued that the Tribunal had erred in law by not considering the extent to which his mental illness was a harm for him, and in not assessing its seriousness. The court had to determine whether the Tribunal had erred in law and whether the continued detention of the appellant was justified.
The court found that the Tribunal had erred in law by not considering the extent to which the appellant's mental illness was a harm for him, and in not assessing its seriousness. The court held that the Tribunal had failed to consider the extent to which the appellant's mental illness was a harm for him, and had not assessed its seriousness. The court held that the Tribunal had not considered the extent to which the appellant's mental illness was a harm for him, and had not assessed its seriousness. The court held that the Tribunal had failed to consider the extent to which the appellant's mental illness was a harm for him, and had not assessed its seriousness. The court found that the Tribunal had erred in law by not considering the extent to which the appellant's mental illness was a harm for him, and in not assessing its seriousness.
The court held that the Tribunal had failed to consider the extent to which the appellant's mental illness was a harm for him, and had not assessed its seriousness. The court held that the Tribunal had not considered the extent to which the appellant's mental illness was a harm for him, and had not assessed its seriousness. The court held that the Tribunal had failed to consider the extent to which the appellant's mental illness was a harm for him, and had not assessed its seriousness. The court held that the Tribunal had erred in law by not considering the extent to which the appellant's mental illness was a harm for him, and in not assessing its seriousness. The appeal was allowed and an order was made that the appellant be discharged from the mental health facility.

Orders