S, P v Guardianship Board - [2006] SADC 38

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative Appeals Tribunal: Application)
S, P v GUARDIANSHIP BOARD
Judgment of His Honour Judge Tilmouth
(Assessor Branson and Assessor Battams)
5 April 2006
ADMINISTRATIVE LAW
Appeal from decision of Guardianship Board, dismissing appeal against detention orders made under ss 12(1), 24, 25, 26 of the Mental Health Act 1993 - meaning in subsection 12(3) of "if it is not practicable for the examination to take place within 24 hours of admission" and "as soon as practical after admission".
Detention order spent by the time appeal heard - whether appeal valid. Order staying appeal. Duties of the Board to make express findings of fact, considered.
Mental Health Act 1993 s14, referred to.
Henschke v Guardianship Board (1998) D3850; Rivers v Guardianship Board No. 434 of 2003 - unreported 15 September 2003, applied.
Plenty v Dillon (1991) 171 CLR at 654; Coco v The Queen (1993) 179 CLR 427, 430., considered.

S, P v GUARDIANSHIP BOARD
[2006] SADC 38
Preliminary

This appeal is brought by a person said to have a history of schizophrenia and underlying related disorders for as long as thirty five years, characterised by delusional beliefs and in recent times very much coupled with regular non-compliance of her oral medication regime. Accordingly she has had a series of detention orders made against her pursuant to the Mental Health Act 1993 (SA) (“the Act”) in the past.
Background
The immediate history prior to the matter before coming before us, is that the appellant was detained for a period of three days commencing on 16 January 2006, pursuant to s12(1) of the Act. That detention was confirmed by a psychiatrist on the following day, 17 January 2006. On 19 January 2006 she was further detained for a period of twenty one days, pursuant to s12(5) of the Act.
On 27 January 2006 the Guardianship Board (“the Board”) dismissed her appeal against the detention order of 19 January 2006. On the same day she filed a notice of appeal to this Court.
Before the matter could be heard by us on 20 February 2006, a successive detention order under s12(3)(b) of the Act was made for a further twenty one days on 9 February 2006. It would be readily apparent that by the time this matter came to hearing then, that the detention order of 27 January 2006 from which she appeals had expired and was superseded by the fresh order of 9 February 2006.
Preliminary Issue of Jurisdiction
In those circumstances a preliminary issue arose as to whether or not the appeal was competent. An appeal from an order for detention lies in the first place to the Guardianship Board pursuant to s26 of the Mental Health Act 1993 (SA), and from that Board certain rights of appeal to the Administrative and Disciplinary Division of this Court are provided for under s28 of that Act. The content and nature of such appeals are preserved by s67(1)(f) of the Guardianship and Administration Act 1993 (SA). Pursuant to s67(7), the Board is required to furnish to this Court all the records or transcripts given in the original proceedings before the Board, copies of any written submissions made to the Board, or any reports furnished to it, together with a copy of the Board’s reasons for such a decision. That did not occur within the 21 days during which the subject order remained in effect. Section 67(8) of the latter Act requires the Court to determine proceedings “as expeditiously as is reasonably practicable” and to “give priority to hearing and determining appeals against decisions or orders … relating to the detention of any person”.
From that point s42E of the District Court Act 1991 (SA) enables the Court to proceed to hear the appeal unbounded by the rules of evidence, requiring it to pay due regard to the decision being appealed against and proscribing that the Court should not depart therefrom without “cogent reasons”.[1] The Court on hearing the appeal, has the power under s42F to affirm, rescind, substitute or remit to the original decision maker, in accordance with any “directions or recommendations of the Court”[2].
[1] Section 42E.
[2] Section 42F(c).
Mechanics for Review under the Act
Whether there is a valid appeal to this Court on foot or not, the Board has the power to continue detention orders once made, requiring the person the subject thereto to be detained in a detention centre, or some other approved treatment centre, for a period not exceeding twelve months, under s13 of the Act. In this case the subject order was one of 21 days, that is the order of 19 January 2006. That order was extant by the time the appellant filed her notice of appeal on 27 January 2006, however, as noted already, it was replaced by the subsequent order of 9 February 2006.
The powers of detention exercised by medical practitioners under s12(1), by psychiatrists under s12(5) or s12(6), and the Board under s13 of the Act, necessarily deprive our citizens of their liberty. It is not surprising therefore that those powers are severely curtailed in point of time, in respect of the mechanisms for assessment and review, and by way of appeal, thus providing the necessary minimum checks and safeguards intended by Parliament to protect against unwarranted or arbitrary orders depriving the liberty of those people coming within the purview of the Act. The mandate of this Court is to consider appeals expeditiously, confirms the statutory scheme is designed to furnish persons subject of an order under the Act, recourse to a speedy remedy in order to guard against potential abuse of those powers.
Is the Appeal valid?
Certainly the appeal was valid at the time of filing. By the time it comes to giving effect the means of redress available to the Court on an appeal being allowed, as a matter of construction the provisions of Division 2 “Administrative and Disciplinary” of the District Court Act (1991) (SA), ss42A-42H, are premised on the existence to a valid appeal. Moreover, when it comes to exercising the power of rescission or remission, the Court when exercising those options, must do so with respect to the original “decision” of the “decision-maker”: s42F.
In the circumstances of this case, by the time it came to the hearing of the appeal before the Court, there was no remaining content or subject matter available for the Court to “affirm”, “rescind”, “substitute” or “remit”, and there would be plainly no point in exercising any of those options, since the Board made a subsequent order for detention, as we have said earlier, superseding the order under appeal. Whatever the strict legal merits, it would appear therefore as a practical consideration, that this Court is powerless to make any effective order, and that it would be equally futile to attempt to do so.
In Henschke v Guardianship Board[3] the Court considered appeals in relation to a 21 day detention order, issued after the order expired. Accordingly counsel for the appellant sought merely declaratory relief, to the effect that the detention was “void and unlawful”. At that time the powers available to the Court upon a successful appeal, were to affirm, vary or quash, or make a substitute order[4], a provision repealed in 2000. The powers of disposition now available to the Court pursuant to s42D, are limited to affirmation, rescission or remission or substitution. The Court in Henschke determined that the power to “affirm, vary or quash” are to be directed to what is proper as at the time of appeal and therefore “the Court has no power to quash an order …. retrospectively: and as the detention order, whether void or not, has run its course, the most appropriate order is the appeal be stayed permanently”. The same process of reasoning is applicable to the instant appeal, even though the options available to the Court are somewhat different from those available to it when Henschke was decided.
[3] (1998) D3850
[4] S68(1) Guardianship Board Act.
A similar situation also arose in Rivers v Guardianship Board[5] in which the Court made a similar order, for similar reasons, even though the current appellate structure was in place by then, and because there was no legal right to be vindicated as between the parties.
[5] No. 434/2003 – unreported 15 September 2003.
For those reasons the appeal in this matter, although valid, cannot be used as a vehicle for extraneous relief, since the entire subject matter of the appeal is spent. Accordingly the appropriate order is to stay the appeal.
Order for detention
In relation to the subject matter under appeal, two substantial points were made by counsel for the appellant. The first was the order for detention was invalid and the second that it was made on insufficient or inadequate evidence.
As to the first of these issues, the appellant was represented at the hearing before the Board and the transcript reveals that her Counsel raised at the outset, “the issue of the validity of the detention”[6]. In essence, the point was that an examination by a psychiatrist did not take place within 24 hours of admission, or as soon as practicable thereafter, as mandated by s12(3) of the Act, and was therefore invalid. The operative parts of s12 read as follows:
[6] Transcript 27/1/06 p3.
DIVISON 2 – DETENTION
ORDERS FOR ADMISSION AND DETENTION
(1) If, after examining a person, a medical practitioner is satisfied-
(a)that the person has a mental illness that requires immediate treatment; and
(b)that such treatment is available in an approved treatment centre; and
(c)that the person should be admitted as a patient and detained in an approved treatment centre in the interests of his or her own health and safety or for the protection of other persons,
the medical practitioner may make an order for the immediate admission and detention of the person in an approved treatment centre.
(2) An order under subsection (1), unless earlier revoked, expires three days after the day on which it is made.
(3) A person admitted and detained in an approved treatment centre pursuant to an order under subsection (1) must be examined by a psychiatrist-
(a)if it is practicable for the examination to take place within 24 hours of admission-within that period; or
(b)if it is not practicable for an examination to take place within 24 hours of admission-as soon as practicable after admission.
(4) When the psychiatrist has completed the examination-
(a)he or she must, if not satisfied that the continued detention of the patient is justified, revoke the order; or
(b)he or she may, if satisfied that the continued detention of the patient is justified, confirm the order.
(5) If an order for detention has been confirmed under subsection (4), a psychiatrist may, before the order expires and after examination of the patient (which should be carried out during the 24 hours prior to that expiry), make an order for the further detention of the patient for a period not exceeding 21 days commencing on that expiry.
(6) A further order (but one only) may be made for the detention of the patient for a period not exceeding 21 days commencing on the expiry of the order under subsection (5), if two psychiatrists (only one of whom may be one of the psychiatrists who made the orders under subsections (1) and (5)) think it is justified after each has separately examined the patient.
….
A psychiatrist appearing before the Board informed the Board that:
In this case, a new doctor has joined our service and I think I was a bit confused about the way it should be done – just before twenty four hours lapsed or just after the twenty four hours lapsed. I think this is the reason why this happened. Dr … is a doctor who has just joined Noarlunga Health Services from New Zealand.
The Board made the observation that “the Form 2”[7] had not been signed within the 24 hour period required by the legislation, that the appellant had been seen by a psychiatrist within that period and it concluded from this material there had therefore “been compliance with the spirit of the legislation”[8].
[7] Mental Health Regulations 1995 Reg. 5(b), Revocation or Confirmation of Initial Detention Orders (s12(4)).
[8] Reasons 27 January 2006, p6.
The submission for the appellant arises in this way. Section 12(1) enables a medical practitioner, who upon examining a person and being satisfied the person has a mental illness requiring immediate treatment, and that such treatment is available at an approved treatment centre, to admit that person as a patient and then detain that person in that centre, in the interests of his or her own “health and safety” or for “the protection of other persons”. Such an order expires automatically upon “three days after the day on which it is made”: s12(2). However, a person so detained and admitted, must be examined by a psychiatrist within 24 hours of admission. The psychiatrist completing that examination, if not satisfied continued detention is justified, may revoke the order for detention: s12(4)(a), or if so satisfied, “confirm the order”: s12(4)(b). Moreover, the examining psychiatrist may make an order for the further detention of the patient not exceeding 21 days, before the original three day order expires: s12(5). The order for detention of 21 days on 19 January 2006 was made under s12(5) and that 9 February 2006 was made under s12(6).
The evidence and ruling relating to psychiatric examination
The point made by counsel for the appellant was that there was no evidence directed towards the question whether or not it was in the circumstances practicable or otherwise, for the examination by the psychiatrist contemplated by s12(3) of the Mental Health Act to have taken place within or outside 24 hours of admission. The only evidence touching the matter was that quoted above. It appears there may have been a policy of examining patients closer to the expiration of the 24 hour period, in order to best assess the patient. The Form 1[9] shows the initial examination took place at 10.00 am on 16 January 2006, and the Form 2 reveals the subsequent psychiatric examination occurred at 10.30 am on 17 January 2006. Insofar as that examination was outside 24 hours, the explanation appears to be that the doctor concerned did not understand or appreciate the strict time limitations imposed by the statutory regime.
[9] Mental Health Regulations 5(a) “Order for admission and detention is an approved treatment centre (s12(1)).
The evidence, such as it was, suggests the “second” examination took place within the prescribed 24 hours, at least after the first examination, but that the examination required by s12(4) and the Form 2, were both subsequently completed an half hour outside that period, on 17 January 2006.
Unfortunately, neither the evidence given before the Board, nor the reasons of the Board themselves, appear to address the appropriate question: both appear to have focussed upon the number of hours between the two examinations under ss12(1) and 12(3) respectively, whereas, as we have seen, the 24 hour requirement is triggered not upon the first examination by a medical practitioner under s12(1), but by “admission” into a treatment centre (s12(3)(a) & (b)). It must also be born in mind that s12(3)(b) does not excuse an examination occurring as soon as practicable after the 24 hours has expired; rather the emphasis remains on “as soon as practicable after admission” (our emphasis). The transcript before the Board on this point is confusing – at one point it suggests the appellant “got to ED … on the 16^th [at] 19.30”[10], and at another that the appellant was detained at her home “when the MAC team saw her”[11] on the 16^th. The Form 1 refers to an “immediate admission”, suggesting the time of the first examination and the time of admission were one and the same. In any case, logic would suggest the time of admission could be no earlier than the time of the first examination, so that it could be the fact that the second examination took place within the 24 hours of “examination” in compliance with the requirements of the Act – it is impossible to say anymore than that from the transcript.
[10] Transcript 17 January 2006 p3.
[11] Transcript 27 January 2006 p3-4.
As we have emphasised, the Mental Health Act erects a tight framework indeed for the detention of the mentally ill, in confined circumstances with effective mechanisms for review, because the civil liberties of the subject are at stake. One of the most significant safeguards within that regime, is that imposing a strict time limitation as a pre-condition to continuing valid detention, for independent confirmation of the original diagnosis of mental illness by a psychiatrist.
When considering whether a condition of the Act has been fulfilled, or for that matter whether there was compliance with the terms of the overall scheme created by s12, the Board must always implement the policy identified in s5(1)(b) of the Act, “to minimise restrictions upon the liberty of patients and interference with their rights, dignity and self-respect …” such that the statutory prerequisite to the exercise of any power to detain should be construed to ensure strict compliance. As the Act contains severe encroachments on the rights of individuals, when it comes to s12, the “inconvenience in carrying out an object authorised by legislation, is not a ground for avoiding fundamental common law rights”, Plenty v Dillon and Coco v The Queen[12].
[12] Plenty v Dillon (1991) 171 CLR 635 at 654, Coco v The Queen (1993) 179 CLR 427, 430.
Accordingly, before the Board can properly consider an appeal to it from a person the subject of a detention order, in those cases where the statutory pre-requisite to such detention may not have been met, there is an obligation on the Board to consider that issue, to make findings of fact in the first place, and then to proceed to determine if it was “not practicable” for the psychiatric examination to have taken place within the statutory time frame permitted and finally whether that examination took place “as soon as practicable after admission” (s12(3)(b)). This is so, whether or not the Board is conducting an initial review pursuant to s24 of the Mental Health Act, or exercising the powers available to it on an appeal under s26. In the former case without such an inquiry, it could not have been satisfied that “there are proper grounds for it to remain in force”: s25, and in the latter, the detention order is equally liable to be quashed: s26(3)(b).
In this matter we are unable to make a conclusive finding, on reviewing the matter ourselves, whether it was “not practicable” or otherwise for the psychiatrist to have examined the appellant outside the 24 hours of “admission”, or whether that examination took place as “soon as reasonably practicable after admission”, if indeed that was the fact. On the footing that an appeal remained alive, we would have remitted that matter to the Board for reconsideration, because it is simply not apparent whether there was compliance with the “spirit of the legislation” in the first place, or whether it was reasonably (im)practicable to comply, in the second.
The underlying merits of the appeal
The second point made by counsel for the appellant was that there was an insufficient or unsubstantiated basis, for the order to have been made. The reasons of the Board indicate it considered a large body of material available to it. The Board summarised that material, and expressly took it all into account, including the opinions expressed in the Forms 1, 2 and 3 – the latter dated 19 January 2006 comprising a “first order for the further detention of a patient pursuant to s12”. The Board concluded “the appellant requires detained inpatient treatment in the interests of her own health and safety and for the protection of other persons”.

Insofar as detention was justified on the basis of “her own health and safety”, we are bound to say there was a convincing body of material, clearly supporting that conclusion. It comprised all the material referred to by the Board, including medical records and hospital notes, evidencing a long history of mental difficulties. On review we have no doubt that the Board was amply justified in confirming the order on that basis; indeed such a conclusion was inevitable based on the substantial body of material supporting that conclusion. We are of a like view to the Board on that issue.
As to the remaining question, the “protection of other persons”, the material before the Board was less clear and consisted in the main of hearsay statements relating to several alleged incidents, suggesting the appellant was variously “stalking a doctor”, possibly “attacking a nurse on the ward”, and at another point lashing out at staff when trying to stop them picking her up from the floor. As to these incidents, although the Board proceeded in an informed way authorised by s12(3), we are nevertheless bound to say that without more, it is difficult to identify just what facts or events the Board acted on to sustain the conclusion it reached as to the “protection of others”[13]. Even then, the Board should approach its task from the perspective that the more serious the allegation, the more careful and specific it must be in identifying the facts it has found, before proceeding to reach a conclusion on the matters in dispute[14].
[13] See also Re: K, GE [2005] SADC 23.
[14] Refer generally Briginshaw v Briginshaw (1938) 60 CLR 336.
In its reasons, the Board simply noted that it took into account “the identified hospital notes … in particular recent entries, and concluded “it finds these facts established”[15] without identifying just precisely what those facts were. The finding “the appellant requires detention in patient treatment … for the protection of other persons”, expresses a legal conclusion, but even so, without knowing the facts upon which that conclusion rests, the Court would remit the matter to the Board to enable it to complete the necessary determinations of fact, underpinning that legal consequence. In the result that proves unnecessary, given that the order is sustained on another ground.
[15] Reasons 27 January 2006, p7.
Conclusion and orders of the Court
In the result we would have been of the opinion that the matter ought to have been remitted for reconsideration, on the issue of whether or not the detention pursuant to s12 was valid, but otherwise the decision of the Board should be upheld on the basis that the detention was clearly justified on any view of the material before the Board, on the ground of the appellants own health and safety.
We regard this outcome as highly unsatisfactory to say the least. We express our deep unease respecting cases coming on appeal to this Court from the Guardianship Board, which on too many unacceptable occasions, cannot be determined on their merits because transcripts of proceedings before the Board have been lost, or the reasons of the Board are not made available to the Court, until after the detention period the subject of the appeal, has expired. The fall of events in these circumstances run contrary to the clear policy of the Act, to provide speedy and effective appellate review, and frustrate - as this case only too readily illustrates – the duty of the Court to hear appeals in this particular jurisdiction in an “expeditious” fashion.
Perhaps all we can do is to bring these problems to the attention of the Government, the practical difficulties concerning the effective means of review under the Act, as pointed out in the “Review of the Mental Health Legislation in South Australia”[16] in which the effectiveness of this Court in the review process under the Act, is called into question.
[16] The “Bidmeade Report” April 7, 2005, “Paving the Way” at para 7.1.
In the result however, we are of the view that the appeal is valid, but that as there is no extant subject matter over which the Court is any longer capable of making an operative order, the appeal is stayed.