Schulz v MALONE - [2004] SASC 305

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
SCHULZ v MALONE
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Gray)
29 September 2004
MENTAL HEALTH - CONFINEMENT AND RESTRAINT OF MENTALLY ILL PERSONS AND SIMILAR ORDERS
Appeal against decision of District Court in its Administrative and Disciplinary Division dismissing an appeal against an order for continuing detention made by Guardianship Board - whether the order made under s 12 of the Mental Health Act valid - whether the order for continuing detention made under s 13 of the Mental Health Act valid - appeal dismissed.
Mental Health Act 1993 (SA) s 10, s 12, s 12(1), s 12(2), s 12(4), s 12(5), s 12(6), s 12(7), s 13, s 13(1), s 13(1)(a), s 23, s 24, s 24(1), s 24(1)(a)(i); Guardianship and Administration Act 1993 (SA) s 67, referred to.

SCHULZ v MALONE
[2004] SASC 305
Full Court: Doyle CJ, Duggan and Gray JJ

DOYLE CJ: Mr Schulz has appealed by leave from a decision of the District Court in its Administrative and Disciplinary Division. The appeal is said to raise a question of significance for medical practitioners who make detention orders under s 12 of the Mental Health Act 1993 (SA) (“the MHA”) and for persons like Mr Schulz whose rights are affected by the making of such an order.
The District Court heard an appeal under s 67 of the Guardianship and Administration Act 1993 (SA) (“the GAA Act”) against a decision by the Guardianship Board. The Board had made an order under s 13 of the MHA for the detention of Mr Schulz, an order called a continuing detention order. Such an order can be made only in respect of person “who is being detained in an approved treatment centre pursuant to” the MHA: s 13(1)(a) of the MHA.
Mr Schulz claims that he was not being detained in an approved treatment centre when the continuing detention order was made, because the order under s 12 under which he was being detained was not valid, and so an essential requirement for the making of an order under s 13(1)(a) could not be made out. The District Court dismissed an appeal against the order of the Board under s 13.
The appeal to this Court raises the validity of the order under s 12 on the basis of which the Board made its order under s 13.
At the hearing I joined in an order dismissing the appeal. These are my reasons.
Facts and legislation
It is sufficient to refer to the provisions of the MHA that are essential to the argument. Section 12 provides as follows:
“12. (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.
(7)    An order cannot be made under subsection (1) in relation to a patient who is being detained pursuant to an order under subsection (5) or (6).
(8)    The director of an approved treatment centre in which a patient is detained pursuant to an order made under subsection (5) or (6) may revoke that order at any time during the period for which it is effective.
(9)    A psychiatrist who makes an order for detention under subsection (5) or (6) must forthwith furnish the director of the treatment centre with a written report of the results of his or her examination of the patient and of the grounds on which the order was made.
(10) On receiving a report under subsection (9) the director must forward a copy of the report to the Board.”
Section 13(1) provides as follows:
“13. (1) If the Board is satisfied on an application under this section –
(a)that a person who is being detained in an approved treatment centre pursuant to this Act (including detention under this section) still has a mental illness that requires treatment; and
(b)that the person should be further 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 Board may order that the person be detained in that centre or some other approved treatment centre for a further period, not exceeding 12 months, specified in the order.”
It is unnecessary to set out the rest of s 13.
It can be seen that s 12 provides for a series of orders under which a person may be detained for at most 45 days. Section 13 contemplates the making of a continuing detention order, but only in respect of a person who is being detained in an approved treatment centre. I agree that must be a reference to a person who is detained under a detention order, and in the present case the only basis for the Board’s order under s 13 was the order under s 12 that Mr Schulz challenges.
On 24 December 2003 Mr Schulz was detained under an order made under s 12(1) of the MHA. The order was duly confirmed under s 12(4). Within the three days allowed by s 12(2), an order was made for Mr Schulz’s detention under s 12(5). That order was for a period of 21 days. It was to expire on 17 January 2004.
On 17 January 2004 a further order was made under s 12(6), the order being for a period of 20 days 12 hours. That order was due to expire at 12.00 noon on 7 February 2004.
On 4 February 2004 an application was made to the Guardianship Board for a continuing detention order under s 13(1) of the MHA. The Board was unable to hear the application until 10 February 2004, and the doctor who made the application was informed that that was the case.
On the morning of 7 February 2004 Dr Relan examined Mr Schulz. It is not disputed that this examination was conducted with a view to deciding whether a further detention order should be made, nor is it disputed that Dr Relan informed Mr Schulz of this. Dr Relan told Mr Schulz that in the interests of his health and safety he should be detained.
Shortly after 12.00 noon (probably within a minute or so) Dr Relan signed an order under s 12(1) of the MHA for the immediate admission of Mr Schulz to the treatment centre, and for his detention in the treatment centre.
That order was confirmed under s 12(4), and so was due to expire on 10 February 2004.
It was on that day that the Guardianship Board made the continuing detention order under s 13(1) of the MHA. The Board made the order on the basis that Mr Schulz was being detained under the order made by Dr Relan.
At the same time, the Board reviewed the order made by Dr Relan. It was required to do this by s 24(1) of the MHA which provides as follows:
“24. (1)     The Board –
(a)must, as soon as practicable after the order is made, review the detention of a person pursuant to an order under section 12 –
(i)     if the detention commenced within seven days of the person being discharged from an approved treatment centre pursuant to the expiry or revocation of a previous order for detention under that section; or
(ii)    if other prescribed circumstances apply; and
(b)may review any other order for detention pursuant to that section as the Board thinks fit.”
On review of the order by Dr Relan, the Board confirmed the order.
The issue on appeal
Mr Lisacek, counsel for Mr Schulz, argues that the MHA does not contemplate detention beyond a total of 45 days provided for by s 12, except by a continuing detention order under s 13.
He points out that by s 12(7) an order cannot be made under s 12(1) “in relation to a patient who is being detained pursuant to an order under subsection (5) or (6)”, and submits that when Dr Relan made the order on 7 February 2004 Mr Schulz was being so detained. Mr Lisacek submits that Mr Schulz had not been discharged from the treatment centre, in the sense of leaving the treatment centre. He had not been told that he was free to leave. In the short interval between the expiry of the order under s 12(6) at 12.00 noon, and Dr Relan making a new order under s 12(1), Mr Lisacek submits Mr Schulz must be regarded as being detained. Accordingly, the order made by Dr Relan under s 12(1) was invalid. It follows that there was no basis for the making of the continuing detention order under s 13(1) of the MHA.
The orders were valid
I do not accept these submissions.
Section 24(1) of the MHA contemplates an order being made under s 12 in respect of a person who has previously been detained under such an order. Indeed, it requires a review by the Guardianship Board of an order under s 12 when that order is made within seven days of the expiry of a previous order under s 12. The first submission by Mr Lisacek cannot be accepted.
It must follow that an order can be made under s 12(1) shortly after the expiry of a previous order under that section. That cannot be done while an order under s 12(5) or s 12(6) is operative: s 12(7). But that very provision implies that once the relevant order has expired, a new order under s 12(1) can be made. When Dr Relan made the order on 7 February 2004, the previous order under s 12(6) had expired. Mr Schulz was no longer detained under that order.
That is all that is required to open the way for a fresh order under s 12(1).
It is not strictly necessary to decide whether or not Mr Schulz had been discharged from the treatment centre when Dr Relan made the order on 7 February 2004. The term “discharge” is used occasionally in the MHA, but in a manner that suggests that it is not a term with a precise legal meaning. In s 10 “discharge” appears to refer to a patient’s departure from a treatment centre, although it is capable of referring to the expiry of a detention order, the patient remaining as a voluntary patient. In s 24(1)(a)(i) “discharged” may well refer simply to a change in status from being a detained person to a person who is either a voluntary patient or who is no longer a patient at all.
Be that as it may, whether or not Mr Schulz had been discharged when Dr Relan made the order, I consider that Mr Schulz was not “being detained pursuant to an order under subsection (5) or (6)”.
It is possible that during the minute or two between the expiry of the order that expired at 12 noon on 7 February, and the making of the further order by Dr Relan, Mr Schulz was detained at the treatment centre in the sense that, while free to leave the centre, he was in fact in a locked ward or enclosed area from which he would not have been released had he sought release. I emphasise that this is a mere hypothesis, the relevant facts not having been enquired into at any stage in these proceedings. Even if that is the case, Mr Schulz was not detained pursuant to an order under the MHA. In that event he was, possibly, unlawfully imprisoned in circumstances that might give rise to a claim against the State. But that circumstance does not deny validity to the order that Dr Relan made.
I should make it clear that there is no basis for thinking that the provisions of the MHA were being misused. Mr Lisacek was driven in argument to concede that if Mr Schulz had walked out the front door of the treatment centre, he could have been detained again, although that might require an apprehension by a police officer exercising powers under s 23 of the MHA. Whether that would have been necessary is not entirely clear, because Dr Relan had examined Mr Schulz during the morning, had formed the opinion that an order should be made, and made the order before, from a practical point of view, Mr Schulz asserted his right to leave the treatment centre.
I agree with the submission by Mr Stevens, counsel for the respondent, that while s 13 is the primary means of dealing with longer term detention, there is nothing in the MHA to prevent the use of s 12 for a second time in relation to a person, shortly after the expiry of a detention order under s 12. I also accept that in the circumstances, the Board being unable to sit to hear the application under s 13, and Mr Schulz’s condition supporting the making of a detention order under s 12, that it was proper for Dr Relan to act as he did.
It follows that the order made by Dr Relan was valid. It follows in turn that the continuing detention order made by the Board under s 13 was valid.
Conclusion
As the orders in question were valid, the District Court correctly dismissed the appeal to it. For those reasons I joined in the order dismissing the appeal to this Court.
DUGGAN J: I agree with the reasons given by the Chief Justice for dismissing the appeal.
GRAY J: I agree with the reasons of Doyle CJ for dismissing this appeal.