Re WJA
[2010] QMHC 1
•25 March 2010
MENTAL HEALTH COURT
CITATION:
Re WJA [2010] QMHC 1
PARTIES:
APPEAL AGAINST DECISION OF THE MENTAL HEALTH REVIEW TRIBUNAL
ATTORNEY-GENERAL FOR QUEENSLAND
AppellantDIRECTOR OF MENTAL HEALTH
Respondent by ElectionWJA
RespondentPROCEEDING NO:
No 14 of 2010
DELIVERED ON:
25 March 2010
DELIVERED AT:
Brisbane
HEARING DATES:
15 March 2010
JUDGE:
Ann Lyons J
ASSISTING PSYCHIATRISTS:
Dr J Lawrence
Dr E N McVieFINDINGS AND ORDERS
The appeal is dismissed
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL PRACTICE AND PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – Where Attorney-General seeks to appeal decision and Forensic Order of the Mental Health Review Tribunal – Where no new or alternate evidence is proposed and no alternative conditions are being sought – Whether Attorney-General’s appeal should be dismissed or permanently stayed as an abuse of process – Whether Attorney-General’s appeal should be dismissed or permanently stayed as oppressive to the respondent
Mental Health Act 2000 (Qld) ss 4, 204(1) 319, 320, 321, 322, 325, 333, 383(4) and 384.
Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 260 ALR 34
Re AK [2002] QMHC 003
R v KU & Ors; ex parte A-G (Qld) [2008] QCA 154COUNSEL:
W Isdale for the Appellant
D Shepherd for the Respondent
J Tate for the Director of Mental Health /Respondent by ElectionSOLICITORS:
Crown Law for the Appellant
Legal Aid for the Respondent
Crown Law for the Respondent by Election
A LYONS J:
By this appeal dated 14 January 2010 the Attorney-General appeals the decision of the Mental Health Review Tribunal (MHRT) dated 11 November 2009. That decision confirmed a forensic order and approved limited community treatment (LCT) for the respondent.
The respondent has lodged an application dated 12 March 2010 that the appeal by the Attorney-General be dismissed or permanently stayed on the grounds that the appeal is an abuse of process or oppressive.
Background
The offences which were the subject of the initial reference to the Mental Health Court occurred in December 2003 when the respondent visited his aunt and uncle’s house and slapped his aunt without warning. She fled and when her husband came to her aid, the respondent armed himself with a stick and attempted to fight his uncle off but lost the stick and fled. It would seem that the only explanation he can offer for the attack is that he felt “a pain in his testicles at the same time as he was thinking of his aunt and therefore concluded that she was responsible for the pain”.[1]
[1]Report of Dr Ian Coles, dated 22 December 2004.
The respondent was charged with burglary with violence, assault occasioning bodily harm whilst armed and assault occasioning bodily harm. On 3 February 2006 the Mental Health Court found that the respondent was of unsound mind within the meaning of the Mental Health Act 2000 (Qld) (the Act) at the time the offences were committed on the basis that he was suffering from schizophrenia.
The court considered that a forensic order was warranted and approved LCT to commence immediately subject to the following conditions:
1. that he reside at an address approved in advance in writing by the authorised psychiatrist;
2. that he present and attend all appointments and in-patient care as required by the authorised psychiatrist;
3. that he comply with the requirements of the authorised psychiatrist in relation to the taking of prescribed medication and other treatment;
4. that he abstain from the use of alcohol and illicit drugs and make himself available and cooperate fully in random medical tests for those substances, as required by the authorised psychiatrist; and
5. that he not drive a motor vehicle unless permitted to do so by the authorised psychiatrist.
The reasons of the Mental Health Review Tribunal
The respondent’s forensic order, with the same LCT conditions, was subsequently confirmed by the MHRT at the first review hearing on 26 July 2006. That forensic order with LCT was then reviewed and approved on 18 January 2007, 10 July 2007, 6 December 2007, 22 May 2008, 19 November 2008 and 19 May 2009 without alteration.
The most recent review hearing was held on 11 November 2009. Oral evidence was presented at the hearing, including evidence from the respondent and the treating team. A submission was also made on behalf of the Attorney-General who had a representative in attendance.
It is clear that the Tribunal conducted an extensive review of the medical information, as well the current circumstances of the respondent. In its reasons for decision, the MHRT stated that the evidence from the respondent was that he had no concerns with the forensic order, that everything was going well and that he was happy at his current accommodation. The reasons indicated that the respondent presented for injections of Risperidone every fortnight. At the hearing the treating team indicated that the respondent had abused marijuana for a long time, but that his drug samples had been relatively clean for a few months. The evidence from the treating team also indicated that even when he was using cannabis there were no adverse changes to the respondent’s mental state.
The evidence before the Tribunal indicated that the respondent was engaging well with the hostel manager who was endeavouring to control his cannabis use by restricting his access to money. The Tribunal noted that when the hostel manager found marijuana in the respondent’s room he had reported this to police. The respondent had subsequently attended at the Magistrates Court on 5 November 2009, a week prior to the Tribunal hearing, where he was fined $150. The evidence from the treating team was the current risks in relation to the respondent were low and there had been no changes in his mental state in the past year.
It is clear from a reading of the Tribunal’s reasons that the Attorney-General was represented at the hearing and made a submission to the Tribunal that the Tribunal should confirm their forensic order with the same LCT conditions which had been in place for almost four years. No issue was made of the use of illicit substances and no submission was made that the respondent lacked insight into his substance abuse and the role it played in the exacerbation of his psychiatric illness and criminal offending.
In its decision, the Tribunal gave consideration to the seriousness of the offence and noted the positive urine drug screens for marijuana throughout 2009. The Tribunal weighed the seriousness of the offence against the evidence that there had been no incidents of aggression since the index offences in 2003, despite his ongoing marijuana use. The decision of the Tribunal noted that whilst the respondent had four hospital admissions after 2003 associated with marijuana use and threats of aggression, he had since 2006 however, been under the care of the Royal Brisbane and Women’s Hospital Mental Health Service. It was clear that since 2006 he had not been admitted to hospital for treatment nor had there been any incidents of aggression or even overt psychosis in that period. This is no doubt due to the respondent’s depot medication.
Turning to the question as to whether he represented an unacceptable risk to his own safety or that of others, the Tribunal considered the respondent’s social circumstances and his current mental status. In relation to his response to treatment and his willingness to continue treatment, the Tribunal noted the depot medication and that the respondent was happy to continue with depot medication even if he was not on a forensic order. The reasons also noted that the treating team considered he was a low risk despite the continued marijuana use. The treating team’s assessment and observation was that the use of marijuana had not adversely affected his mental state and that his mental state was stable.
The Tribunal was clearly satisfied that the respondent did not represent an unacceptable risk to the safety of himself or others. The Tribunal considered however, that he should continue to have close supervision provided by a forensic order.
“The issue for determination at the review was whether or not to confirm or revoke the Forensic Order for [the respondent]. The Tribunal was mindful of the restrictions imposed on revoking a Forensic Order and on approving limited community treatment as set out in s 204(1) of the Act. On the evidence before it and on consideration of this evidence the Tribunal decided to confirm the Forensic Order for [the respondent]. The most significant factor leading to this conclusion despite the low level of risk to the public and him, was his ongoing use of marijuana and the seriousness of the index offences.
Going forward the Tribunal wished to ensure that [the respondent] continued to enjoy a high level of engagement with his treatment and continued to receive the rehabilitation of treatment that is the purpose of the Forensic Order.
On balance the Tribunal decided the appropriate course of action was to confirm the Forensic Order.”
The Tribunal then turned its mind to the LCT conditions and again noted all of the factors outlined above. The Tribunal also took into account in particular the fact that he had not tried to abscond nor had he been aggressive since the LCT conditions had been in place. Whilst the Tribunal noted the court appearance for the possession of marijuana on 5 November 2009, it considered that the respondent had otherwise been compliant with the conditions of his forensic order and LCT. The clear urine drug screens towards the end of 2009 were also referred to, as was the fact that there had been no change in his mental state despite the use of marijuana. The Tribunal carefully considered the advice of the treating team to confirm the forensic order and to approve continuation of full LCT.
Taking all the information into account, the Tribunal determined that this low level of risk was appropriately managed on his existing LCT conditions.
The Attorney-General’s appeal
The Attorney-General appeals this decision on the following grounds:
“Reasons
The Tribunal erred by approving conditions of limited community treatment that fail to ensure the Patient does not represent an unacceptable risk to the safety of the patient or others in circumstances where:
1.The patient continues to abuse illicit substances;
2.The patient remains insightless as to the role of illicit substance abuse in the exacerbation of his psychiatric illness and history of criminal offending when unwell;
3.The Tribunal placed insufficient weight upon the seriousness of each offence leading to the Patient becoming a Forensic Patient; and
4.The Tribunal placed insufficient weight on the Patient’s poor engagement in treatment; failure to acknowledge or accept his diagnosis and denial of substance abuse.”
Application by the respondent for an order that the appeal by the Attorney‑General be dismissed or permanently stayed
There is an application before the court by counsel for the respondent that the court dismiss or permanently stay the appeal by the Attorney-General as an abuse of the court’s processes because:
(a) it is an attempt to circumvent the terms of the Act;
(b) it is oppressive.
The respondent argues that the forensic order with LCT was essentially the same as had been in place since the respondent was placed on the forensic order on 3 February 2006. Furthermore, it was submitted that the Attorney‑General was represented at the Tribunal review hearing and actually made submissions that the forensic order should be confirmed and the previous LCT conditions maintained. The respondent argues that the appellant’s submission at that time did not indicate any specific concern about the continued use of illicit substances and the lack of insight. Nor was there any submission as to the weight to be placed on the seriousness of the original conduct or the alleged poor engagement in treatment, his failure to accept his diagnosis and the denial of substance abuse.
The respondent submits that whilst the Attorney-General can appeal a review decision of the MHRT without leave, the appeal in this case cuts across principles which would otherwise apply and be relevant to the exercise of discretion to grant leave to appeal.
Ground (a)
Counsel for the respondent submits that under the Act the Attorney-General does not have standing to bring an application to the MHRT for a review of a forensic order, although there is a right of appearance at any such review. The Act provides that an appeal to the court is by way of rehearing, unaffected by the Tribunal’s decision, based on the material before the Tribunal and any additional evidence allowed by the court. In essence, the court makes the decision afresh. It is still, however, an appeal.
The respondent argues that if the Attorney-General uses his right of appeal simply as a general review mechanism, this will have the effect of rendering the statutorily based Tribunal irrelevant in so far as its jurisdiction to review a forensic patient’s mental condition is concerned.
It is also argued that the appeal by the Attorney-General in this case is an attempt to review the LCT provisions attaching to the forensic order, particularly when the appellant declined to make any submissions opposing those conditions at the review hearing but in fact supported them.
Accordingly, the respondent submits that the use of the appeal provisions by the Attorney-General in those circumstances is a method of circumventing the statutory inability of the Attorney-General to bring a review application in the MHRT and to simply substitute the court as the review body.
The respondent submits that in the circumstances the court should dismiss the appeal as an abuse of the processes of this Court.
Ground (b)
Counsel for the respondent also submits that the respondent has been on a forensic order since 2006 and has been subject to essentially the same LCT conditions throughout that time. The relevant conduct occurred in 2003 and the respondent has been subject to psychiatric care since that time. This is the only occasion however, that the Attorney-General has appealed against either the original order made by the court or any subsequent Tribunal order. This is also the only occasion that the Attorney-General has expressed concern that the current LCT conditions do not adequately protect the community.
The respondent also expresses concern that there is no indication as to what orders the Attorney-General now contends ought to be in place.
Counsel also argues that under the present regime the respondent is in fact doing reasonably well, despite evidence of occasional cannabis use, denial and a reluctance to engage in alcohol and drug rehabilitation programs. Furthermore, since 2006 there has been no suggestion of violent behaviour or deterioration in his mental state as a result of the cannabis use. The respondent engages well with the treating team, complies with medication requirements and is happy in his current accommodation.
Furthermore, counsel argues that the treating team are alert to the need to engage the respondent in drug rehabilitation, which is a long term goal. Under the current LCT conditions, concerns by the treating team in relation to his drug use can be dealt with, including requiring him to return to a stated authorised mental health service.
Counsel for the respondent also argues that the Attorney-General’s appeal does not specify how the greater protection of the community is in fact to be achieved. If different conditions are in fact sought, they have not been specified. Counsel submits, in essence, that any greater restriction of the respondent’s liberty would, in fact in the circumstances, be an attempt to enforce compliance by punitive means. The respondent suffers from schizophrenia and whilst he is presently not exhibiting any psychotic symptoms, he remains significantly disabled by the negative symptoms of the illness. Further restrictions on his life would clearly have a significant impact.
Counsel argues that the appeal is oppressive because (a) it seeks to use the LCT conditions as a punitive measure; (b) it seeks to undermine the ability of the treating professionals to treat the respondent using the widest range of options reasonably available; and (c) the opposing positions taken by the Attorney-General bring the system into disrepute and could create confusion and distress for vulnerable patients.
Counsel for the respondent submits that in criminal appeals by the Attorney-General an appeal court can, in the exercise of its discretion, decline to act upon a submission made for the first time on appeal and contrary to the submissions of the Crown made below. Before the Court of Appeal will act on such a submission, exceptional circumstances must be shown. Counsel strongly argues that such a position ought to be adopted by this Court.
In support of that argument, counsel submits that patients before the MHRT are vulnerable persons who are likely to be suffering mental illness and who usually do not have legal representation at the Tribunal. Accordingly, they would be entitled to conclude that the position adopted by the Attorney-General in that Tribunal would, in the absence of relevant new information of substance, be adhered to. Counsel argues that “the resources of the State ought not to be marshalled against them in an inconsistent and arbitrary way”.
The submission from the Director of Mental Health
Counsel for the Director of Mental Health agreed that the issues raised on this appeal by the Attorney-General raised questions of public importance because the Attorney-General was an “institutional appellant”. Counsel indicated that appeals from the decisions of the MHRT are stressful on all parties and are also onerous on the treating team as the therapeutic alliance is severely impacted upon every time there is an appeal.
Counsel agreed that in the present case the LCT orders have not changed since February 2006.
Counsel expressed a concern that whilst an appeal from the MHRT was an appeal de novo, in the present case this process was being used inappropriately. Counsel submitted that an appeal in the current circumstances could amount to an abuse of process given the wide interpretation of that term by the High Court in Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd[2] when it was indicated that the categories are not closed. In particular, counsel submitted that in this case there was simply no basis for an appeal and as such could constitute an abuse of process as no new or alternate evidence was being proposed and no alternative conditions are being sought.
[2](2009) 260 ALR 34.
Counsel for the Attorney-General’s submissions
Counsel for the Attorney-General indicated that it was a proper function of the Attorney-General to appeal in appropriate cases. In particular, submissions from the Attorney-General at the MHRT were not based on specific instructions and that the discretion in relation to an appeal was exercised after the event when all of the facts were known. It was submitted that the Attorney-General should not be absolutely bound by the submissions that are made at the original review hearing. It was submitted that the appeal from the decision of the MHRT in this case was an appropriate appeal. It was also submitted that the appeal by the Attorney-General was taken in the circumstances of this case because there were genuine concerns about the mental state of the patient as well as his continued use of drugs and poor insight.
Conclusion
The decision of the Tribunal indicates that the Tribunal explored with the treating team whether cannabis had affected the respondent’s mental state and the clear response was that there had been no adverse effects in the last 12 months and that he remained stable and compliant with treatment. The MHRT reasons clearly set out the basis upon which the decision was made and that decision was clearly the appropriate decision on the facts before them.
The representative of the Attorney-General made submissions in support of the decision which was made by the MHRT.
I do not consider that the current grounds of appeal specify with any particularity the actual basis for the appeal. A consideration of the grounds of appeal does not disclose the case the respondent has to meet on the appeal nor what order is actually being sought on the appeal. If further conditions are sought to be added to the LCT order they have not been specified. If the revocation of the current conditions of the LCT order are sought that has not been made clear.
Submissions now being advanced on the appeal are submissions which were not made in the MHRT.
The appellant now wishes to make submissions which are clearly contrary to the submissions made on his behalf at the MHRT.
There was no change in the circumstances of the respondent since the last MHRT hearing.
It is clear that the gravamen of a forensic order is to authorise the detention of a person in a mental health facility. The regime which is set up under the Act is that the Mental Health Court is a court of appeal which determines appeals from the decision of the MHRT which reviews forensic orders.
Whilst the Attorney-General has no right to bring an application to the MHRT for a review of a forensic order, s 450 of the Act gives the Attorney-General a right to appear at the hearing before the MHRT.
“450 Right of appearance—reviews
(1)The following persons may appear in person at the hearing for a review—
(a) the patient;
(b) for a review on the application of the director — the director;
(c) for a review under chapter 6, part 3 or 4 — the Attorney-General.
(2)A person mentioned in subsection (1) may be represented at the hearing by a lawyer or, with the leave of the tribunal, an agent.
(3)If, at a tribunal hearing, the patient is not represented, the presiding member may appoint a person to represent the patient’s views, wishes and interests.
Note—
The tribunal may, under section 463, adjourn the hearing to allow the appointment to be made.
(4)As a representative of the State, the Attorney-General’s role at the hearing for a review under chapter 6, part 3 or 4 is to represent the public interest.”
Sections 319, 320, 321 and 322 of the Act provide that review decisions of the MHRT can be appealed and that the Attorney-General may appeal a decision of the MHRT. In relation to the procedure to be adopted, s 333 provides as follows:
“333 Hearing procedures
(1)The procedure for the appeal is to be in accordance with court rules applicable to the appeal or, if the rules make no provision or insufficient provision, in accordance with directions of the Mental Health Court.
(2)The appeal is by way of rehearing, unaffected by the tribunal’s decision, on the material before the tribunal and any further evidence the court allows.”
The powers of the court on appeal are set out in s 325 which provides:
“325 Appeal powers
(1)In deciding the appeal, the Mental Health Court may confirm or set aside the decision appealed against.
(2)If the Mental Health Court sets aside the decision appealed against —
(a)the court may make a decision the tribunal could have made on the review or application; and
(b)the decision is taken, for this Act (other than this part), to be that of the tribunal.”
The nature of the appeal to this Court was discussed by Wilson J in the decision of Re AK.[3] In that decision her Honour stated:
“[11] The Mental health Court’s decision on appeal is final and conclusive, and there is no further right of appeal: section 327.
[12]The appeal is properly described as one by way of rehearing, since the Court may receive further evidence. Generally, where an appeal is by way of rehearing, the rehearing is as at the date of the appeal; that is, matters are determined by reference to circumstances as they then exist and by reference to the law as it then exists.
[13]Many statutory provisions conferring appellate powers, even in the case of appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error; that is, if an error of fact or law occurred below, the appellate court will try the case again on the evidence used below, together with such additional evidence as it thinks fit to receive: see Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 203-204.
[14]However, I am satisfied that it was not the Legislature’s intention that this Court’s powers to decide appeals from the Mental Health Review Tribunal should be so restricted. Such an appeal is from an administrative body to a court, and in such circumstances there is a presumption that the court is to exercise original jurisdiction and to determine the matter on the evidence and law applicable as at the date of the curial proceedings: see Re Coldham and others; ex parte Brideson (No 2) (1990) 170 CLR 267 at 273 per Deane, Gaudron and McHugh JJ. The decisions of the Mental Health Review Tribunal against which appeal lies to this Court (for example decisions on the review of involuntary treatment orders, forensic orders and fitness for trial) all concern a person’s mental condition, which is not necessarily static. Further, the express words of section 333(2) “unaffected by the tribunal’s decision” are an indication that the Court need not search for error by the Mental Health Review Tribunal before redetermining the matter.”
[3][2002] QMHC 003.
It is clear, therefore, that an appeal to this Court is an appeal by way of rehearing, but it is manifest that such an appeal should be exercised in accordance with the regime which has been set up under the Act. In my view the approach which the appellant seeks to adopt is an approach which would turn this Court into a court of first instance, rather than an appellate body. The clear intent of the Act is that the court hears appeals from the MHRT. No new evidence is before this Court. It is clear that the factual matters have not changed since those that were before the MHRT.
I am concerned that submissions which are now being made are contrary to submissions previously made. In R v KU & Ors; ex parte A-G (Qld)[4] the court held that in criminal matters it was only in exceptional circumstances that the public interest would justify an appellate court acting upon an argument advanced on appeal which was not in accordance with submissions which had been made before the primary court. The Court held that:
“… the abiding reason for this constraint upon the exercise of the appellate function is that, in the administration of criminal justice, the interests of finality are, save in exceptional cases, of paramount importance as a protection of the individual from ongoing harassment by the state.”
[4][2008] QCA 154.
In my view, given the statements by the High Court in Jeffery, the approach which the appellant seeks to follow in this appeal are oppressive in the circumstances.
“[28]The term ‘abuse of process’, as used in Australia today, is not limited by the categories mentioned above or those which constitute the tort. It has been said repeatedly in the judgments of this court that the categories of abuse of process are not closed. In Walton the majority adopted the observation in Hunter that courts have an inherent power to prevent misuse of their procedures in a way which, although not inconsistent with the literal application of the procedural rules of court, would nevertheless be ‘manifestly unfair to a party to litigation ... or would otherwise bring the administration of justice into disrepute among right-thinking people’. This does not mean that abuse of process is a term at large or without meaning. Nor does it mean that any conduct of a party or non party in relation to judicial proceedings is an abuse of process if it can be characterised as in some sense unfair to a party. It is clear, however, that abuse of process extends to proceedings that are ‘seriously and unfairly burdensome, prejudicial or damaging’ or ‘productive of serious and unjustified trouble and harassment.’” (my emphasis)
This Court is a superior court of record and it has power to control its own proceedings. Such powers may also be inferred from the legislation which governs the court, in particular s 383(4) and s 384 of the Act.
In the circumstances of this case where there has been no change in circumstances, where the appellant was afforded a full opportunity to be heard and took advantage of that opportunity and where the grounds of appeal have not been outlined with sufficient particularity for the respondent to understand the true nature of the appeal, I consider that the appeal is oppressive to the respondent. In my view, the approach taken in the circumstances of this case is burdensome and essentially unfair to the respondent. This is particularly so given the human rights principles set out in s 4 of the Act which underpin the administration of the Act. Furthermore, the State has acknowledged that it subscribes to the Model Litigant Principles which include the acknowledgment that the State should act consistently, endeavour to avoid litigation and not institute or pursue appeals unless the State believes that it has reasonable prospects for success, or the appeal is otherwise justified in the public interest.
I consider that the appeal should be dismissed.
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