Re R - [2012] NSWSC 829

Supreme Court

New South Wales

Medium Neutral Citation: Re R [2012] NSWSC 829
Hearing dates: Thursday, 12 July 2012
Decision date: 12 July 2012
Before: White J
Decision:
Refer to paragraph [31] of judgment.

Catchwords:
APPEAL - tribunals - appeal from Mental Health Review Tribunal - whether tribunal constituted in accordance with Mental Health Regulation 2007 - failure to adhere to requirement for Tribunal to be constituted by three persons for the purpose of determining an application for a community treatment order - whether failure to adhere to statutory procedure when conducting mental health inquiry - constructive failure of Tribunal to exercise jurisdiction under s 35 of Mental Health Act 2007 - properly constituted Tribunal to determine application for community service order according to law
COSTS - exceptions to general rule that costs follow the event - conduct of parties - appropriate and reasonable actions of second defendant in instance of miscarriage by Mental Health Review Tribunal - no order as to costs
Legislation Cited: Mental Health Act 2007
Cases Cited: Re J (No. 2) [2011] NSWSC 1224
Category: Principal judgment
Parties: Plaintiff
Sydney Local Health District (2nd Defendant)
Representation: Counsel:
D Burwood (Plaintiff)
B Baker, solicitor (2nd Defendant)
Solicitors:
Crown Solicitors Office (2nd Defendant)

File Number(s): 2012/185645

Judgment

HIS HONOUR: This is an appeal from a determination of the Mental Health Review Tribunal made with respect to the plaintiff. The plaintiff appealed from the whole of a decision of the Tribunal and sought an order that a community treatment order made by the Tribunal on 24 February 2012 be set aside.

According to the record of the Tribunal entitled "Determination of Tribunal", on that day, the Tribunal made a determination under s 35 of the Mental Health Act 2007 that the plaintiff is a mentally ill person and the Tribunal made a community treatment order requiring him to accept treatment and/or medication as prescribed by the Director of Community Treatment of the Croydon Community Mental Health Facility, or her delegate.

The plaintiff denies that he is mentally ill and also complains that the medication he says he is required to take, is medication to which he is allergic and which has serious side effects.

The application for the community treatment order was made by the Director of Clinical Services, Concord Centre for Mental Health.

Section 51(5) of the Mental Health Act provides that a community treatment order may be made in a number of circumstances, including following a mental health inquiry. Under subs 53(4), the Tribunal may not make a community treatment order at a mental health inquiry unless it is of the opinion that the person is a mentally ill person. A mental health inquiry is an inquiry under Div 3 of Pt 2 of Ch 3 of the Act. Such an inquiry is held in relation to a person who is detained in a mental health facility (see ss 27(d) and 34) as the plaintiff was.

Section 35 prescribes matters to be done and to…

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 R

Details

AGLC: Re R [2012] NSWSC 829
Case: [2012] NSWSC 829
Decision Date: 12 July 2012

CaseChat Overview and Summary

In the case of Re R, the matter was brought before the court by an appeal from the Mental Health Review Tribunal. The dispute involved the proper constitution of the Tribunal and its authority to make decisions regarding a community treatment order. The court was tasked with determining whether the Tribunal was constituted in accordance with the requirements set out in the Mental Health Regulation 2007, specifically whether it was constituted by three persons as mandated for such inquiries. Additionally, the court needed to consider whether the Tribunal's failure to adhere to this statutory procedure resulted in a constructive failure of the Tribunal to exercise its jurisdiction under section 35 of the Mental Health Act 2007.

The court examined whether the Tribunal was properly constituted to determine the application for a community treatment order according to law. It was established that the Tribunal had not been constituted as required, resulting in a procedural defect. However, the court considered whether this defect was so fundamental that it rendered the entire proceeding null and void, or whether it could be rectified by a properly constituted Tribunal revisiting the application. The court held that the Tribunal's failure to adhere to the statutory procedure did not result in a constructive failure of jurisdiction, and the matter could be determined by a properly constituted Tribunal.

Ultimately, the court determined that the initial determination by the Tribunal was invalid due to the procedural defect, but this did not deprive the properly constituted Tribunal of its authority to make the decision. The court ordered that the application for a community treatment order be determined by a Tribunal properly constituted in accordance with the Mental Health Regulation 2007. The second defendant's actions were deemed appropriate and reasonable, resulting in no order for costs.

Orders