Re JMS
[2013] QMHC 20
•11 December 2013
MENTAL HEALTH COURT
CITATION:
Re JMS [2013] QMHC 20
PARTIES:
APPEAL AGAINST DECISION OF THE MENTAL HEALTH REVIEW TRIBUNAL
ATTORNEY-GENERAL FOR QUEENSLAND
JMS
AppellantsDIRECTOR OF MENTAL HEALTH
Respondent by Election
PROCEEDING NO:
0285 of 2013
DELIVERED ON:
Ex tempore reasons delivered on 11 December 2013
Written reasons delivered on 16 December 2013
DELIVERED AT:
Brisbane
HEARING DATE:
11 December 2013
JUDGE:
Ann Lyons J
ASSISTING PSYCHIATRISTS:
Dr E N McVie
Dr A S B DavisonFINDINGS AND ORDERS:
The appeal is allowed. 1.
The decision of the Mental Health Review Tribunal dated 10 September 2013 is set aside. 2.
The Forensic Order dated 16 March 2012 is reinstated. 3.
A copy of the transcript of the Mental Health Court proceedings on 11 December 2013 is to be provided to the parties. 4.
CATCHWORDS:
MENTAL HEALTH – APPEAL AND NEW TRIAL – APPEAL ON GROUNDS OF NATURAL JUSTICE – appeal against decision of Mental Health Review Tribunal revoking a Forensic Order – where appellant, JMS, contended he had been denied natural justice in relation to the Tribunal’s review of his Forensic Order as he was kept unaware of the hearing and the material being relied upon by the Tribunal and was denied the opportunity to attend the hearing and respond to that material – where appellant, the Attorney-General, further contended that the Tribunal miscarried in failing to consider certain material that was relevant to its decision – meaning of the “audi alteram partem” rule – whether appellant, JMS, was denied natural justice so that the decision of the Tribunal revoking his Forensic Order should be set aside
Mental Health Act 2000 (Qld), s 450, s 456 and s 459
Queensland Police Credit Union Ltd v Criminal Justice Commission [2000] 1 Qd R 626; [1998] QCA 233, considered
R v Cunningham [2005] QCA 321, consideredCOUNSEL:
B McMillan for the Attorney-General
J Briggs for the appellant JMS
J Tate for the Director of Mental HealthSOLICITORS:
Crown Law for the Attorney-General
Legal Aid Queensland for the appellant JMS
Crown Law for the Director of Mental Health
A LYONS J:
Background
JMS was placed on a Forensic Order by this Court on 16 March 2012. He has been charged with a number of property and drug offences which were alleged to have occurred in December 2010. The Court was satisfied that JMS was of unsound mind in relation to those alleged offences on the basis of the extensive reports of Dr van de Hoef and Dr Calder-Potts. Dr Calder-Potts noted that JMS was extremely paranoid and psychotic at the time of the alleged offences. He had been seen by a counsellor at Biala in November 2010, one month prior to the alleged offences, who considered that he was paranoid and psychotic with grandiose beliefs. He arranged for his admission to the Royal Brisbane Hospital. He was admitted for two weeks during which time he was medicated and subsequently released. He was then re-admitted in early December 2010 with ongoing psychotic symptoms. It was after his discharge on this second occasion that the alleged offences occurred between 9 and 21 December 2010. Dr Calder-Potts was satisfied that at the time of the alleged offences, JMS was suffering from a mixed affective state as a result of his bipolar affective disorder.
Dr van de Hoef had also examined JMS and was satisfied that JMS had developed a psychotic illness in November 2010 which was active and florid at the time of all of the alleged offences. She noted that the illness was exacerbated by the use of intravenous amphetamines in early November 2010 and that he had florid psychotic symptoms including persecutory and grandiose delusional beliefs, disorganised thought and behaviour, delusions of reference and derogatory auditory hallucinations, as well as depressed mood and marked anxiety. Dr van de Hoef was satisfied, however, that at the time of all of the alleged offences, he was suffering from a mental disease and she considered it was a diagnosis of acute schizophreniform psychosis. She was also satisfied that JMS was deprived of the capacity to know he ought not do the acts. Whilst there was some evidence of intoxication, Dr van de Hoef considered that the state of his illness was such that he would have been deprived of that capacity even in the absence of intoxication. The assisting psychiatrists at the 2012 hearing before the Mental Health Court were Dr McVie and Dr Sundin and their advice was that the Court should prefer Dr van de Hoef’s diagnosis of chronic schizophrenic psychosis.
On the basis of those reports and that advice, the Court was satisfied that JMS was deprived at least of the capacity to control his actions at the time of the alleged offences. The Court was also satisfied that, given the nature of the offences, as well as JMS’ ongoing difficulties, there was a need for a Forensic Order.
This appeal
That Forensic Order was regularly reviewed by the Mental Health Review Tribunal (the MHRT) and on 10 September 2013, the MHRT revoked the Forensic Order. The Attorney-General has appealed that decision pursuant to a Notice of Appeal filed on 12 November 2013. Counsel for JMS also appeals against the decision of the MHRT. Counsel for the Attorney-General and JMS argue that the appeal should be allowed and the decision of the MHRT should be set aside due to the failure to accord natural justice to JMS. It is argued that he was denied the opportunity to be present at the hearing, was unaware of the material the MHRT was relying on and was not given an opportunity to be heard in relation to the allegations in the Clinical Report considered by the MHRT.
Was JMS denied natural justice?
Counsel for JMS argued that it was clear from the MHRT’s Statement of Reasons (the MHRT Reasons) that JMS was not present at the hearing. Counsel submitted that the MHRT was well aware that JMS was in custody but they proceeded with the review nonetheless. In particular, it is argued that the MHRT made no effort to contact him to accommodate his participation in the MHRT hearing. It is argued that he could have participated by phone or by video link from the Correctional Facility.
It would seem clear from the MHRT Reasons that the MHRT was well aware that he was being held in custody on remand. The MHRT Reasons indicate that the treating team stated that they had been advised the previous day that JMS had been arrested on 10 charges and that he was in custody. Clearly, then, the MHRT knew why JMS could not attend given his detention on remand. There is no evidence before me which indicates that the MHRT made any attempt to contact him, his legal representatives or his allied person. It is patently clear from the MHRT Reasons that the only parties present at the hearing apart from the members of the MHRT were the treating psychiatrist and the Forensic Liaison Officer. Accordingly, not only was JMS not in attendance at the hearing but his interests were not represented in any way as his lawyer was not present at the hearing nor did he have an allied person in attendance.
It is also significant that a copy of the Clinical Report signed by Dr O'Sullivan on 30 August 2013 which was submitted to the MHRT was not provided to JMS prior to the hearing, particularly when the recommendation by the treating team was that the Forensic Order be revoked. In fact, it would seem that JMS was unaware that the treating team would be making that recommendation. JMS was not in fact given a copy of any of the material which was to be placed before the MHRT. It is quite clear from the MHRT Reasons that the treating psychiatrist and the treating team were of the view that:
“[JMS] does not fulfil the criteria for an FO because he does not suffer from a mental illness or natural mental infirmity. His mental health issues relate to substance use and personality disorder. He has suffered no deterioration despite on-going cannabis use. He continues to accrue charges despite having a stable mental state. The offences are all acquisitive in nature.
The Doctor said he feels the Forensic Order is inappropriate.”[1]
[1]Mental Health Review Tribunal Statement of Reasons, dated 10 September 2013, at p 3.
The MHRT Reasons also indicated that the treating team were of the view that they were not treating JMS for his psychosis but rather his issue was bad behaviour. The treating team also made a number of allegations in relation to JMS’ recent behaviour, in particular alleging ongoing cannabis use as well as plans he had for “a big robbery”.[2] Clearly JMS was not able to respond to any of the allegations in that report. I note that report indicated that the view of the treating team was that JMS’ mental health issues related to substance use and personality disorder and that his mental state had suffered no deterioration despite ongoing cannabis use. The Clinical Report noted that JMS was not displaying any symptoms of mental illness. It is of concern that the Clinical Report for the hearing on 10 September 2013 was dated 30 August 2013 but was in fact based on an assessment conducted some six weeks before the hearing, on 30 July 2013. Given that JMS was not present at the MHRT hearing and the most current information about his mental state was some six weeks old the currency of the information before the MHRT was clearly an issue, particularly when the report noted that he had self-increased his dosage of Venlafaxine by almost double.
[2]Ibid, at p 2.
The Clinical Report also stated that, “[JMS] continues to accrue charges despite having a stable mental state and has no mental health defence for any of these charges. His offences are non violent and acquisitive in nature.”[3] The MHRT Reasons also refer to oral evidence presented by the treating team at the hearing that:
“[JMS] has suggested to the treating team that he believes the Forensic Order will operate to keep him out of gaol. He will not be provided with a mental health defence for any of the currently outstanding charges. They are of the nature of actions undertaken to raise funds for drugs and this has been a pattern in [JMS’] life since he was very young. He was living on the streets from the age of nine and became a ward of state at the age of 12. He was using illicit substances heavily. He has experienced lengthy custodial sentences.”[4]
[3]Clinical Report of Dr O’Sullivan, dated 30 August 2013, at p 9.
[4]Mental Health Review Tribunal Statement of Reasons, dated 10 September 2013, at p 2.
It is clear that JMS had no opportunity to respond to these allegations.
Counsel for JMS relied on the decision of R v Cunningham[5] to argue that JMS had been denied natural justice because the proceedings had been conducted in his absence and he had no opportunity to respond. In that decision Keane JA (as he then was) held:
[5][2005] QCA 321.
“As Lord Fraser of Tullybelton, in a passage approved by this Court in Re Criminal Proceeds Confiscation Act 2002 [2004] 1 Qd R 40 at 49, said in In re Hamilton; In re Forrest [1981] AC 1038 at 1045:
“One of the principles of natural justice is that a person is entitled to adequate notice and opportunity to be heard before any judicial order is pronounced against him, so that he, or someone acting on his behalf, may make such representations, if any, as he sees fit. That is the rule of audi alteram partem which applies to all judicial proceedings, unless its application to a particular class of proceedings has been excluded by Parliament expressly or by necessary implication.”
It has been recognised in previous decisions of this Court that the principle described by Lord Fraser is as applicable to sentencing as it is to any other judicial proceeding. See, for example, R v Moodie [1999] QCA 125; CA No 439 of 1998, 14 April 1999.”[6]
[6]R v Cunningham [2005] QCA 321, at pp 5-6.
Counsel argued that the hearing before the MHRT was a judicial proceeding and that the failure to afford JMS’ counsel or JMS the opportunity to address the MHRT in relation to whether the Forensic Order should be revoked was a failure to observe the rules of natural justice. It was clear that JMS had no opportunity to respond to any assertions made by the treating team.
Counsel for the Attorney-General also submitted that the appeal should be allowed not only on the basis that there had been a breach of the rules of natural justice and a failure to afford procedural fairness to JMS but that the MHRT had miscarried as it had failed to take into consideration material which was relevant to its decision. Counsel for the Attorney-General placed on record concerns about the practice of the MHRT in relation to the brief of material provided to the MHRT for hearings. Counsel for the Attorney-General advised that after a Forensic Order is made by this Court, the Registry of this Court forwards the forensic dossier to the Registry of the MHRT. That dossier contains all of the reports provided to the Mental Health Court, as well as a transcript of the proceedings which includes not only the Reasons for Finding, but the advice of the assisting psychiatrists.
Counsel for the Attorney-General noted with concern that not all of that material was then supplied to the MHRT. Counsel indicated:
“MR McMILLAN: I can say that from my experience it is routinely provided by the registry to the tribunal. As a result of this matter and other matters where I've had similar concerns, your Honour, I've made inquiries with the tribunal as to the process and I'm told that the materials from this court when received by the tribunal are reviewed by the tribunal’s legal officer and the legal officer identifies documents that that person considers are relevant and all other materials are destroyed such that when a tribunal is convened to review a patient’s forensic order that tribunal is only apprised of the information that is placed before it by the tribunal’s legal officer and is not apprised that there was any other material before this court except in circumstances where this court makes specific reference to reports in its reasons or specific reference to the advice of the assisting psychiatrist (sic) in this (sic) reasons which is not always necessary to give effect to the court’s judgment.
The tribunal has absolutely no way of knowing what helpful advice might have been given by the assisting psychiatrists or what alternative clinical opinions might have been given by the other reports that are not included in the forensic dossier. Particularly in circumstances where a tribunal intends to consider the revocation of a forensic order on the grounds that it did in this matter, it is absolutely crucial in my submission that the tribunal has access to and consideration of all of the relevant material that was before this court. That is particularly so in circumstances, your Honour, where the forensic order was made by this court only 18 months previously.
When your Honour has – when the – if the tribunal had had regard to the transcript of the proceedings in this court it would’ve observed the very helpful advice of the assisting psychiatrists and it would have in my submission behoved the tribunal to review the other reports that were before this court. Unfortunately, none of that occurred and that in my submission has contributed significantly to the miscarriage of the proceedings in the tribunal. As I said, your Honour, I would respectfully adopt and agree with Mr Briggs (sic) submissions that, your Honour, it might be that this is an issue which will present this court in other matters while that practice continues to be applied in the tribunal.
Unfortunately, for resourcing reasons the Attorney does not send a representative to every Review Tribunal hearing and your Honour will see from the statement of reasons that the Attorney was not personally represented in this matter. I'm hopeful that if he had been that that person would’ve alerted the tribunal to the serious errors in the proceeding it purported to conduct.”[7]
[7]T-8 (11 December 2013), at lines 33-47 to T-9, at lines 1-22.
Counsel noted that, in the present case, a number of relevant documents had not been provided to the MHRT at the review hearing. In particular:
1. The transcript of proceedings in the Mental Health Court on 16 March 2002;
2. The report of Dr Calder-Potts dated 6 April 2011;
3. The report of Dr Wolfenden dated 24 February 2012; and
4. The clinical records and discharge summaries that had been referred to by Dr Calder-Potts in his report.
Should the appeal be allowed?
Section 450 of the Mental Health Act 2000 (Qld) (the Act) gives JMS a right to appear in person at the hearing for the review of his Forensic Order. There can be no doubt that JMS was not present at the hearing and that his interests were not represented at the hearing.
Section 456 of the Act sets out the circumstances in which the MHRT can proceed in the absence of an involuntary patient:
“456 Tribunal may proceed in absence of involuntary patient
(1) On the hearing for a review or treatment application for an involuntary patient, the tribunal may proceed in the absence of the patient the subject of the proceeding if—
(a) the tribunal reasonably believes the patient—
(i) is absent because of the patient’s own free will; or
(ii) is unfit to appear; and
(b) the tribunal is satisfied it is appropriate and expedient to do so.
(2) Subsection (1) has effect despite section 459.”
It would seem to be apparent from the face of the MHRT Reasons that the MHRT did not actually turn its mind to the question of whether it should proceed in JMS’ absence. The MHRT Reasons simply do not address the question as to whether the MHRT held the requisite reasonable belief that JMS was either absent because of his own free will or was unfit to appear. In my view, neither s 456(1)(a)(i) nor s 456(1)(a)(ii) was satisfied. JMS could not have been absent due to his own free will given his detention in custody and the medical evidence before the MHRT gave no indication that he was unfit to appear. Accordingly, it would seem to me that in failing to turn its mind to a consideration as to whether it was appropriate to proceed in his absence, the MHRT failed to comply with the requirements of the Act.
There is no doubt that the MHRT is a busy tribunal with a substantial workload and is required to act quickly, without undue technicality or formality. Section 459 of the Act, however, makes it quite clear that the rules of natural justice apply in all MHRT hearings:
“459 Hearing procedures
(1) At a hearing, the tribunal must—
(a) observe natural justice; and
(b)act as quickly, and with as little formality and technicality, as is consistent with a fair and proper consideration of the issues before it.
(2) In conducting the hearing, the tribunal—
(a) is not bound by the rules of evidence; and
(b) may inform itself on a matter in a way it considers
appropriate; and
(c) may decide the procedures to be followed for the hearing.
(3) However, the tribunal must comply with this part and any tribunal rules.
(4) A party to a proceeding must be given a reasonable opportunity to present the party’s case, and in particular to inspect a document to which the tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions about the document.
(5) However, the tribunal may displace the right to inspect by a confidentiality order.”
Section 459 makes it abundantly clear that a party to a proceeding must be given a reasonable opportunity to present the party’s case, and in particular to inspect a document to which the MHRT proposes to have regard in reaching a decision in the proceeding and to make submissions about the document. That right can be displaced by a confidentiality order, however, it is clear that no such order was made. It would seem clear that in this case the material that the MHRT was to rely on had not been provided to JMS in advance of the hearing. JMS was not aware that the treating team were applying to have the Forensic Order revoked.
JMS was also not aware of the information and allegations which were contained within the Clinical Report to the MHRT and did not have an opportunity to respond to any of those allegations. It would also seem to me that the MHRT may have taken into account some irrelevant considerations given the repetition of the views of the treating team about matters which were not relevant to the issue before the MHRT.
It is also clear that the MHRT did not have before it relevant evidence. In particular, the reports of Dr Calder-Potts and Dr Wolfenden were not before the MHRT. Neither did it have the transcript of the proceedings of the Mental Health Court or the advice of the Assisting Psychiatrists. I also note the advice of Dr McVie in the hearing of this appeal that she had concerns about the retrospective changing of a diagnosis when such a diagnosis had been made by two independent psychiatrists following a thorough review of all of the information and material at the time of the alleged offences. It would seem to me that to consider the revocation of a Forensic Order just 18 months after it was made calls for a thorough assessment of the circumstances surrounding the original finding of unsoundness. I also note the advice that in such circumstances a thorough independent report should be commissioned so that the MHRT can be appropriately informed of all of the relevant issues.
In the circumstances of this case it would seem abundantly clear that JMS was not afforded procedural fairness and that the rules of natural justice were not complied with. The essence of the audi alteram partem rule is that a tribunal must “hear the other side”. This hearing rule requires that the decision maker must hear a person before making a decision affecting the interests of that person. As Aronson, Dyer and Groves make clear in Judicial Review of Administrative Action[8] a court reviewing a decision alleged to have been made in breach of the hearing rule is concerned with the fairness of the procedure adopted by the decision maker and not the fairness of the decision produced by the procedure adopted. In Queensland Police Credit Union Ltd v Criminal Justice Commission[9] the Court of Appeal held that the hearing rule is concerned with conduct and that there can be a breach of the hearing rule if a person is not given an opportunity to be heard even though the person may have nothing to contribute which would be relevant to the decision. In that case the CMC had submitted that there would have been no utility in affording the plaintiff an opportunity to be heard because the plaintiff would not have availed itself of the opportunity or would have done so unsuccessfully. Macpherson JA held:
“Once it is shown that there is a right to procedural fairness in the form of an opportunity of being heard in a proceeding, a person aggrieved is ordinarily entitled to relief against adverse consequences of being denied that right without having to establish in detail how the opportunity would have been made use of. The position may, in some instances, be different where it is shown that the opportunity, even if granted, would in fact or law have been of no avail. In practice, however, cases of that kind are, for the reasons referred to by Megarry J. in John v. Rees [1970] Ch. 345, 402, necessarily rare. In so far as they turn on onus of proof or persuasion, they are in substance an appeal to the discretion of the court to refuse relief on the ground that granting it would be futile. In the present case there is no reason for supposing that use of the opportunity which was withheld in this instance would have had no perceptible impact on the conclusions or remarks, or on the form in which they were expressed, in the portion of the Report complained of; or that the plaintiff would not have made use of the opportunity if it had been presented. Indeed, it is only on being afforded the opportunity that the plaintiff would have been alerted to the need to take the requisite advice that would have enabled it to decide whether or not it was worth availing itself of the opportunity of being heard.
As a matter of caution, it should perhaps be added that it is not every criticism or adverse comment on collateral matters or events which arise in the course or proceedings that will attract the need for procedural fairness of this kind. The function of judicially hearing, investigating, reporting or deciding would be effectively stultified if nothing in the least degree adverse could legitimately be said without first affording the opportunity to be heard to anyone who supposed himself or herself to be in some way detrimentally affected by it. In the present instance, however, the criticism implicit in the Commissioner’s observations had a real potential to prejudice the plaintiff’s reputation and business interests and to do so in a way that was plainly bound to become a matter of public interest and concern. In those circumstances, the Commissioner ought to have afforded the plaintiff the opportunity of presenting its side of the matter to him before making the strictures which were raised upon it in the Report which he published.”[10]
[8]Aronson, M, Dyer, B and Groves, M Judicial Review of Administrative Action 4th ed Thomson Reuters Australia, 2009, at p 408.
[9][2000] 1 Qd R 626.
[10]Ibid, at pp 634-635.
It would seem clear therefore that in the circumstances which I have outlined above JMS was not given notice of the submission to revoke the Forensic Order or of the allegations made against him nor was he given any opportunity to reply to any of the allegations and statements made about him or to be heard on the question of revocation. Given the denial of natural justice the decision must be set side.
I note that it might be argued that the revocation of a Forensic Order ensures that JMS’ rights are restricted to the least extent possible and that by revoking the order the MHRT was acting to protect his rights. However, it cannot be forgotten that the revocation of a Forensic Order has significant consequences for a patient and clearly affects a patient’s status within the Mental Health system and also within the criminal justice system. Such a step must not be taken without ensuring that a patient’s right to be heard is appropriately respected given the significant consequences to them.
Accordingly, the appeal is allowed. The decision of the MHRT is set aside. The Forensic Order is reinstated. The Court does not have any up to date medical reports and is therefore unable to approve any Limited Community Treatment.
I also order that a copy of the transcript of the Mental Health Court proceedings on 11 December 2013 is to be provided to the parties, with the Director of Mental Health being authorised to distribute the transcript as it sees fit.
FINDINGS AND ORDERS
1. The appeal is allowed.
2. The decision of the Mental Health Review Tribunal dated 10 September 2013 is set aside.
3. The Forensic Order dated 16 March 2012 is reinstated.
4. A copy of the transcript of the Mental Health Court proceedings on 11 December 2013 is to be provided to the parties.