Richards v Victoria Police & Anor
[2007] VSC 51
•27 February 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
No 4778 of 2007
| JASON RICHARDS | Plaintiff |
| v | |
| VICTORIA POLICE and WERRIBEE MERCY HOSPITAL | First Defendant Second Defendant |
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JUDGE: | WARREN CJ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 February 2007 | |
DATE OF JUDGMENT: | 27 February 2007 | |
CASE MAY BE CITED AS: | Richards v Victoria Police | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 51 | |
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ADMINISTRATIVE LAW – Habeas Corpus – Whether Victoria Police proper defendant – Murray v Director-General Health and Community Services Victoria (Supreme Court of Victoria, Eames J, 23 June 1995) followed - Victoria Police not proper defendant - Whether plaintiff’s father is being legally detained under the Mental Health Act 1986 – Whether appropriate procedure followed under the Mental Health Act 1986 – Plaintiff’s father detained legally – Summons dismissed.
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APPEARANCES: | Counsel | Solicitors |
| The Plaintiff in Person | ||
| For the First Defendant | Mr C Young | Victorian Government Solicitor |
| For the Second Defendant | Mr M Regos, a solicitor | DLA Phillips Fox |
HER HONOUR:
Before delivering my judgment in this matter, I will indicate that the subject of the proceedings, Mr Barry Richards, has appeared as a litigant in person, I believe on more than one occasion, when I have sat with other members in the Court of Appeal. I have had no other dealing with Mr Richards and I have little recollection of his personal circumstances, given the volume of the work that we deal with in the Court of Appeal. Mr Jason Richards has made a number of references to the fact that I would know Mr Barry Richards. I considered that matter should be clarified as I have done. I will now proceed with my judgment in this matter.
Mr Jason Richards brings an application on summons seeking the release of his father, Mr Barry Richards, presently held in the Werribee Mercy Hospital psychiatric unit. The proceeding is instituted primarily seeking relief in the nature of habeas corpus.
The circumstances alleged by Mr Jason Richards (whom I will hereafter refer to as "the plaintiff") are set out in his affidavit of 26 February 2007. He describes in that affidavit that his father was taken to the hospital on 14 February 2007 following a visit to Mr Barry Richards' home at Williamstown by the police. The plaintiff describes that, as informed - and, I assume, he readily believes, a knock was heard on the front door that was answered by Mr Barry Richards. Members of the police force were present with an officer of the Crisis Assessment and Treatment (“CAT”) team. The plaintiff sets out in his affidavit the communications that occurred with the police that eventually culminated in the police forcing entry to the premises and taking Mr Barry Richards downstairs and ultimately his departure in an ambulance to the casualty and emergency department of the Werribee Mercy Hospital (“the Hospital”). The plaintiff states in his affidavit that, some time during the morning of the following day, his belief is that his father was taken to the psychiatric section of the hospital. The plaintiff seeks the release of his father; alternatively, the release of his father into the plaintiff's care.
In the course of the application, brought on short notice to the defendants, the plaintiff made a series of allegations that concerned the unlawful conduct of the police. Victoria Police is the first defendant to the proceeding and the Hospital is the second defendant. Submissions were made by the plaintiff on 26 February 2007 before me sitting in the Practice Court. Counsel appeared for Victoria Police. A solicitor, Mr Regos , appeared on short notice for the hospital, but there were issues as to the adequacy and efficacy of service of the initiating proceeding and the affidavit from the two defendants. As a consequence, the matter was adjourned to today, 27 February 2007.
During the overnight adjournment, an affidavit was filed on behalf of Victoria Police sworn by Sergeant Adam Fry dated 26 February 2007. In the affidavit Mr Fry describes the circumstances as they occurred on 14 February 2007, in particular his attendance with a member of the CAT team at the home of Mr Barry Richards. As a consequence of that attendance, Mr Fry became concerned as to the state of health of Mr Barry Richards and his need to receive medical attention. As a result, Mr Fry describes that he concluded in all the circumstances that it was necessary to force entry into the home of Mr Barry Richards, he not agreeing to the police request to enter and speak to him. After entry had been forced, Mr Fry describes in his affidavit what he observed:
"While the members of the CAT team spoke to Mr Richards, I looked around the room to ensure that there were no weapons visible that may pose a threat. I did not search any of Mr Richards' belongings or open any drawers or cupboards. At no time did I touch Mr Richards. From where I stood in the flat, I could see that all sources of outside light had been blocked out by what appeared to be something similar to Christmas wrapping paper and tape. All sources of outside ventilation, such as the exhaust fan and vents, had also been taped over. All of the cupboards, windows and doors also had improvised tamper-evident seals. These seals appeared to be made from shop dockets. I saw large stacks of paper that looked like court documents all the way around the walls of the flat. In some places the piles were around two feet high. Although Mr Richards was behaving in a belligerent and noisy manner, he was not exhibiting any violence towards myself or the members of the CAT team. Because of this I was satisfied that it was safe to transport him in an ambulance. I then contacted the Melbourne Ambulance Service."
An affidavit was also filed on behalf of the hospital sworn by Dr Manoj Kumar Muthangaparambil and dated 27 February 2007. Dr Kumar deposes as to the circumstances surrounding Mr Barry Richards. He deposes that Mr Richards was brought by ambulance to the emergency department of the hospital on 14 February 2007. He further deposes that at the time of the presentation of Mr Richards to the Hospital, there were a number of documents presented, including a request for involuntary treatment signed by one Michael Davies, a registered nurse. The records of the hospital disclose, as deposed by Dr Kumar, that Mr Barry Richards was examined by one Dr Cheng and, as a result, Dr Cheng completed a recommendation for Mr Richards to receive involuntary treatment.
Subsequently, the next day, on 15 February, Mr Barry Richards was further examined. The assessment of the doctor at that stage, one Dr Perera, was such that she concluded it appropriate to make an involuntary treatment order. Further on 15 February 2007, Dr Kumar, as he deposes in his affidavit, examined Mr Barry Richards. He concluded:
"Following my examination of the patient, I concluded that he was mentally ill and suffering from a psychotic illness, most likely a delusional disorder. It was my opinion that for his health and to prevent a deterioration of his mental condition, he required immediate treatment that could be obtained by him being admitted to the psychiatric in-patient unit. The patient did not consider that he was mentally ill and did not consider that he needed treatment. He would not consent to receiving treatment voluntarily."
Dr Kumar then set out in his affidavit the matters elicited from Mr Barry Richards during the course of the examination, including the history that Mr Richards provided to him relating, among other matters, to litigation in various courts. Dr Kumar deposed that he saw Mr Barry Richards again on 16 February 2007, at which time he remained of the opinion that Mr Richards still suffered from a delusional disorder. Subsequently, Mr Richards was assessed again, as deposed in Dr Kumar's affidavit, on 23 February 2007 by Dr Akimberi. The medical records of the hospital record that Mr Richards was "talkative, grandiose, had flight of ideas, was sometimes tangential and litigious". He recommended his continuance with anti-psychotic medication. Then again, on 26 February, Mr Barry Richards was seen again by Dr Perera. She devised a treatment plan and continued her opinion that Mr Barry Richards was in need of continuing involuntary attention to treat him for his mental illness. Importantly, Dr Kumar examined Mr Barry Richards on 26 February 2007. In his affidavit Dr Kumar sets out in considerable detail the matters that Mr Barry Richards conveyed to him during the course of that examination. Following that examination, Dr Kumar formed the view that Mr Richards continued to satisfy the criteria under s 8(1) of the Mental Health Act1996, namely, that Mr Richards requires ongoing continuation of treatment as an involuntary patient.
The affidavits set out the circumstances as they lie at this point in time and, as I am best informed, as to Mr Barry Richards's condition. I note also that in Dr Kumar's affidavit there is information setting out an application made by the plaintiff to the Mental Health Review Board due to be heard on 28 February 2007, which is an appeal against the decisions that have been made for the involuntary status of Mr Barry Richards under the Mental Health Act 1986.
In the course of oral argument this morning, given the late circumstances of the service of the two affidavits, opportunity was provided to the plaintiff to make submissions to the court as to whether there were any change in circumstances of his father about which he wished to apprise the court. The plaintiff informed me that he visited his father at the hospital last evening and was able to take him out from the hospital. This of itself indicates that the condition of Mr Barry Richards is subject to the ongoing review and attention of the hospital and may give rise to change in circumstances if and when the condition of Mr Richards changes. Be that as it may, it is the case that the expert assessment of Dr Kumar is the opinion by which I ought to be guided in all the circumstances. So much indeed was acknowledged during the course of submissions by the plaintiff.
I turn then to the first matter to be determined, and that is the joinder of the Victoria Police. Mr Young for the police submitted that, on the authorities, it was inappropriate for Victoria Police to be joined. It is apparent that Victoria Police does not presently have custody or control of Mr Barry Richards. The last involvement of Victoria Police ceased on 14 February, and in any event that was prior to the making of any orders under the Mental Health Act 1986. These proceedings, as I have already observed, essentially lie in the writ of habeas corpus. In the circumstances, and in accordance with authority, the writ of habeas corpus should be directed to the person who has custody or control of the person detained.[1] Clearly, and it seems unequivocally at this time, the Werribee Mercy Hospital, the second defendant, is the party that has the custody and control of Mr Barry Richards. On the authorities, even if I was to accept the submission of the plaintiff that the initial detention and transport of Mr Barry Richards to a psychiatric hospital was unlawful, it would be irrelevant to the issue of the present justification for the detention of him.[2]
[1]Re T (unreported, Supreme Court of Tasmania, Zeeman J, 5 March 1993).
[2]See Murray v Director-General Health and Community Services Victoria (unreported, Supreme Court of Victoria , Eames J, 23 June 1995).
In all the circumstances of this case, I could not be satisfied at the time of its bringing before me that Victoria Police was a proper defendant. I put this matter in the course of argument to the plaintiff, who proceeded then to catalogue complaints as to the way in which the police conducted the detention and conveyance of his father to the hospital. The circumstances described are not the subject of these proceedings. In the event that the plaintiff wished to allege on behalf of his father that there were issues of false imprisonment or assault or tortious allegations of that nature, that necessarily would arise under a different proceeding. Those matters are not before me now. I hasten to add, in identifying such causes of action, I do not indicate in any way a view as to whether such causes of action lie and their prospects of success.
In the circumstances of this matter, and based on the authorities, I would dismiss the proceeding in relation to Victoria Police. However, if my judgment in that regard was misplaced, it is relevant to look at the circumstances of the conduct of the police on 14 February 2007 when Mr Barry Richards was seen at his home. In light of the matters deposed by Mr Fry in his affidavit, it is clear, in my view, that the police acted in accordance with s 10 of the Mental Health Act. In summary, the section provides that a member of the police force may apprehend a person who appears to be mentally ill if the member of the police force has reasonable grounds for forming a belief in certain circumstances - in essence, that the person may cause bodily harm to himself or to some other person. It is apparent from Mr Fry's affidavit that he formed that view. In all the circumstances, therefore, even if Victoria Police was properly a defendant to the proceeding, there is no basis for making orders against Victoria Police at this time.
I turn then to the relief sought with respect to the hospital. For the purposes of the Mental Health Act as it applies to this instance, there are five steps that need be taken with respect to the detention of a person for an involuntary treatment order. Section 9(1) provides:
9 Request and recommendation for involuntary treatment
(1) The documents required to initiate the involuntary treatment of a person are—
(a) a request in the prescribed form and containing the prescribed particulars; and
(b) a recommendation in the prescribed form by a registered medical practitioner following a personal examination of the person.
The steps commence with s 9(1)(a). In this case it arose by way of a request made by Michael Davies, a registered nurse, that Mr Richards receive involuntary treatment. The second step arises under s 9A of the Act, whereby a registered nurse may effect the transportation of an individual to an approved mental health service, so long as the conditions under ss 9(1)(a) and 9A(1) are met. That occurred in this instance. The next step arises under s 9(1)(b), whereby a recommendation is made by a registered medical practitioner for treatment of an individual. Again, that occurred in this instance. The fourth step arises under s 12AA, where a patient is examined by a registered medical practitioner who may make an involuntary treatment order. That occurred in this instance, as deposed by Dr Kumar in his affidavit. The fifth and final step arises under s 12AC, whereby within 24 hours of an involuntary treatment order being made the patient is to be assessed for continuing involuntary status. That occurred, again as deposed by Dr Kumar.
In the circumstances of this matter and in light of the expert evidence of Dr Kumar which stands unchallenged, I am satisfied that at this point in time Mr Barry Richards is appropriately detained. I further observe that there is another proceeding due to be heard tomorrow before the Mental Health Review Board, whereby an appeal is brought concerning the involuntary status of Mr Barry Richards. It is that forum which will be the appropriate occasion at this time for the assessment of the status of the patient.
So far as relief is sought in the nature of habeas corpus, the tests are not satisfied in accordance with the authorities and I would not be disposed to grant the relief sought against the Hospital.
I further add that in so far as there are allegations against the hospital alleging illegal activity with respect to the detention of Mr Barry Richards, I note that there are criteria set out in s 8 of the Act which provides:
8 Criteria for involuntary treatment
(1) The criteria for the involuntary treatment of a person under this Act are that—
(a) the person appears to be mentally ill; and
(b) the person's mental illness requires immediate treatment and that treatment can be obtained by the person being subject to an involuntary treatment order; and
(c) because of the person's mental illness, involuntary treatment of the person is necessary for his or her health or safety (whether to prevent a deterioration in the person's physical or mental condition or otherwise) or for the protection of members of the public; and
(d) the person has refused or is unable to consent to the necessary treatment for the mental illness; and
(e) the person cannot receive adequate treatment for the mental illness in a manner less restrictive of his or her freedom of decision and action.
It is apparent from the affidavit of Dr Kumar that in all the circumstances those matters have been satisfied so far as I need consider them. In any event, as I have already adverted to, there is the appeal before the Mental Health Review Board.
Finally, the plaintiff made submissions this morning that I should order the release of Mr Barry Richards on the basis that the patient is willing to submit to treatment, take medication and remain under the guidance and treatment of his general medical practitioner. I note the indication given by the plaintiff, both on his own behalf and with respect to his father's wishes. However, I consider myself to be in a position where I ought properly be guided by the expert assessment of Dr Kumar.
In all those circumstances, and taking those matters into account, I would refuse the relief sought by the plaintiff in his summons and dismiss it accordingly.
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