Shane McWhinney v Melbourne Health
[2013] VSCA 162
•26 June 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2012 0108
| SHANE McWHINNEY | Appellant |
| v | |
| MELBOURNE HEALTH | Respondent |
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| JUDGES | ASHLEY and OSBORN JJA and MACAULAY AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 18 June 2013 |
| DATE OF JUDGMENT | 26 June 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 162 |
| JUDGMENT APPEALED FROM | Shane McWhinney v Melbourne Health [2012] VCC 660 (Judge Saccardo) |
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NEGLIGENCE – Involuntary treatment pursuant to the Mental Health Act 1986 – Whether appellant wrongly assessed, transported and detained for involuntary treatment – Whether breach of duty of care demonstrated – Unreliability of appellant’s evidence at trial – Uncontradicted expert evidence – Trial judge’s conclusions of fact not ‘glaringly improbable’ – Fox v Percy (2003) 214 CLR 118 – Mental Health Act 1986 ss 8, 9 and 9A.
EVIDENCE – Application to admit fresh evidence – Availability at trial – Relevance and admissibility of the evidence – Application refused.
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| APPEARANCES: | Counsel | Solicitors |
| Appellant | In person | |
| Respondent | Mr J Noonan SC with Mr J Constable | DLA Piper |
ASHLEY JA:
I agree in the reasons of Osborn JA, and with the order which his Honour proposes.
OSBORN JA:
The appellant has suffered since at least 1995 from a serious mental illness, namely Bipolar I Disorder with a differential diagnosis of Schizoaffective Disorder.
On 3 September 2006 he was transported involuntarily to the Royal Melbourne Hospital pursuant to ss 9 and 9A of the Mental Health Act 1986 (‘the Act’) in order that he might be further assessed in the circumstances which had then arisen and, if necessary, treated.
On arrival at the hospital he was assessed by a psychiatric registrar, Dr Natasha Williams, who determined that he met the criteria of s 8 of the Act for involuntary admission to a health service.
On 4 September 2006 he was further assessed by psychiatrist Associate Professor Peter Doherty pursuant to s 12AC of the Act. Professor Doherty determined that the appellant met the criteria set out in s 8 of the Act for involuntary treatment pursuant to the provisions of the Act.
In addition Professor Doherty prescribed the administration of Acuphase, an anti-psychotic drug. The drug was subsequently administered to the appellant in response to deterioration in his behaviour.
In November 2007 the appellant commenced proceedings in the County Court against the respondent. The claim as articulated in his last amended statement of claim was as follows:
(a) Melbourne Health negligently assessed him as satisfying the criteria listed in s 8(1) of the Act for involuntary treatment on 31 August 2006,[1] 3 September 2006,[2] and 4 September 2006;[3]
[1]Amended Statement of Claim, [5].
[2]Amended Statement of Claim, [4]-[5].
[3]Amended Statement of Claim, [6].
(b) the prescription of Acuphase by Professor Doherty was negligent because the appellant was not affected by a mental illness at that time and did not meet the criteria for involuntary treatment;[4]
[4]Amended Statement of Claim, [6].
(c) the prescription of Acuphase resulted in the appellant being treated in an inhumane and negligent manner;[5] and
(d) Melbourne Health was negligent in that an excessive dose of Acuphase was administered and the appellant was not monitored with an electrocardiogram subsequent to the administration of the drug.[6]
[5]Amended Statement of Claim, [6].
[6]Amended Statement of Claim, [6].
In addition, Melbourne Health agrees that at trial the appellant also made claims that:
(e) Melbourne Health unlawfully detained the appellant at Royal Melbourne Hospital from 3 September 2006 to 11 September 2006; and
(f) Melbourne Health acted negligently on 5 September 2006 in threatening the appellant with a further injection of Acuphase in the event that his behavioural pattern did not change.
Claims (d) and (f) were not pressed on appeal.
The matter initially came on for trial before his Honour Judge Robertson in February 2009, and after a four day trial his Honour dismissed the appellant’s claim.
This decision was overturned on appeal and retrial was ordered.[7] Upon the retrial his Honour Judge Saccardo, after a 12 day hearing, found for Melbourne Health and entered judgment against the appellant.
[7]McWhinney v Melbourne Health [2011] VSCA 22.
His Honour rejected the appellant’s claims principally because:
(a) he was not persuaded the appellant was a reliable witness;
(b) he preferred the direct evidence of the witnesses of Melbourne Health as to what occurred in the course of the assessment and treatment of the appellant in September 2006; and
(c) the appellant led no expert evidence that called into question either the opinions expressed by the Melbourne Health professionals, or the treatment administered to him.
The appellant now appeals the decision of Judge Saccardo. The grounds of appeal raise the contentions that:
(a) the trial judge was incorrect to conclude Melbourne Health complied with the relevant provisions of the Act and of the regulations made under the Act;
(b) the trial judge was incorrect to conclude that the evidence given by the appellant at trial was unreliable; and
(c) the trial judge erred in reaching a series of specific conclusions of fact and failing to reach alternative conclusions of fact.
The appellant submits in particular that Melbourne Health acted improperly and unreasonably in treating him on the basis that he was affected by mental illness on 3 and 4 September 2006.
Fresh evidence
On 28 February this year the appellant gave notice of intention to apply for leave to rely upon further evidence. He sent a bound volume to the Court of Appeal Registry. He described it as consisting of ‘components which demonstrate the operation of a State Sponsored Stalking Program.’ The components were itemised as follows: ‘1. Affidavit civil proceedings. 2. The re-serviced intervention order. 3. Stalking framework affidavit. 4. Stalking research affidavit. 5. Vandalism pictures. 6. Key system. 7. The dog incident. 8. Attempted intervention orders. 9. The bar incident.’ He also sought to rely upon an extract from his diary of 2 September 2006 ‘to demonstrate the complicity between police and Melbourne Health’; and a letter from ‘Grandmaster William Cheung that goes to the appellant’s claim for damages.’
At the outset of the hearing of the appeal, the Court heard submissions whether the appellant had established that the material to which I have just referred should be admitted as fresh evidence. The Court refused the appellant’s application for its admission, and said that it would give reasons for doing so when determining the substance of the appeal. These are my reasons for agreeing in that refusal.
First, the evidence was not new evidence. With one exception, it was material in the hands of the appellant before trial in May 2012. Indeed, the appellant had sought to rely upon ‘components’ 3 and 4 before trial; but his application to do so had been refused by the trial judge at a directions hearing on 12 April 2012.
The exception just mentioned was a bundle of documents showing that the appellant faces criminal charges arising out of the component 9 ‘bar incident.’ The charges arise, however, out of an altercation between the appellant and a neighbour on 3 January 2012 – that is, a date well before trial.
Second, the gist of the numbered components, and the diary entry, as the appellant at least implied in his letter of 28 February, and made clear in his oral submissions on the hearing of the application, was to show that from a time prior to his admission to the John Cade Unit of the Royal Melbourne Hospital on 3 September 2006 up until the present time the appellant has been the victim of a conspiracy between the police, medical and mental health practitioners, the Housing Commission, and even a neighbour and the neighbour’s dog, to engage in State Stalking. The stalking has consisted of break-ins to his flat, assault, denial of support by the authorities, harassment, false statements, perjured evidence, and assassination.
It can immediately be seen that what the appellant wanted to do was to contend that his admission to the John Cade Unit on 3 September 2006, the making of the involuntary treatment order, confirmation of that order, and the involuntary treatment administered to him were aspects of the working out of the conspiracy. It followed that the judge was wrong to have accepted evidence that the appellant was mentally unwell at the time of his admission. Rather, as he has always maintained, he was mentally well at the time, and not in need of treatment.
The trial judge rightly rejected the admission of such evidence. It was not open on the pleadings. His Honour, I add, gave the appellant the opportunity to amend his statement of claim; but the appellant did not apply to do so.
Quite apart from the fact that it is not new evidence, there is no reason now to admit evidence of that kind.
Third, much of the material upon which the appellant now sought to rely would not have been admissible at trial through him. So, for example, it contained various assertions by the appellant about the existence and indicia of state sponsored stalking programs apparently derived from publications downloaded from the internet, together with the publications themselves. The latter included excerpts from ‘Gang Stalking World’.
Fourth, although the broad gist of the appellant’s desired hypothesis was clear, the way in which some of the material was sought to be called in aid was opaque. So, for example, it appears that in 2011 the appellant was prosecuted for delivering a martial arts kick to a neighbour’s dog, that on 3 January 2012 he was involved in a violent altercation with the owner of the dog, that on 5 January 2012 an intervention order was made against him in favour of the neighbour, and that in October 2012 charges were preferred against him arising out of the January altercation.
Fifth, the letter from Grandmaster William Cheung was not only not new, it could relate only to damages, which have never been assessed, and which this Court would not assess even if the liability appeal succeeded.
These reasons required the rejection of the admission of the fresh evidence. It should be recorded however that despite this exclusion the appellant presented his oral argument on the appeal by reference to categories of conduct said to represent characteristic components of ‘State Sponsored Stalking’.
Compliance with the Mental Health Act 1986
No legal defect has been identified in the procedure adopted by Melbourne Health with respect to the appellant. The appellant asserts s 9A(2) of the Act was breached because the same person filled out two forms which are required to be completed independently by different persons.[8] The evidence demonstrated conclusively that this was not the case.
[8]Notice of Appeal ground 2(c)(ii) is:
iiMs Devenish failed in relation to ‘form’ to meet the requirements of 9A(2) of the Mental Health Act 1986.
The appellant further asserts[9] that Professor Doherty failed to comply with reg 7(a) of the Mental Health Regulations 1998 (which relates to the provision of a treatment plan to the affected patient). The appellant gave no evidence as to the alleged breach and did not put the alleged breach to Melbourne Health’s witnesses. There is no proper basis for this ground of appeal.
[9]Notice of Appeal ground 2(c)(iii).
The trial judge set out the provisions of the statutory regime in detail in his judgment. It is unnecessary to repeat them, save to observe that each of the assessments made with respect to the appellant was required to have regard to the criteria set out in the s 8(1) of the Act:
(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.
The appellant contends that the assessments undertaken by Melbourne Health personnel were inadequate and/or failed to properly apply these criteria.[10]
[10]Notice of Appeal ground 2(c)(i) is:
The respondent failed on all counts of statutory compliance in relation to ‘substance’ by using police falsehoods as the basis of their psychiatric assessments.
It would not necessarily follow from acceptance of this contention however that there was no legal warrant for the provision of involuntary treatment.[11] That warrant was provided by compliance with the prescribed procedures of the Act.
[11]Watson v Marshall (1971) 124 CLR 621.
Moreover, for the reasons which appear below I am not persuaded that the judge erred in rejecting the contention that the assessments carried out were in substance inadequate or failed to have regard to relevant criteria.
Unreliability
The appellant is correct to identify the trial judge’s conclusion as to the reliability of the appellant’s evidence as critical to the trial judge’s overall process of reasoning.[12] His Honour stated:
… my reason for not accepting the plaintiff’s evidence is primarily that I find the plaintiff’s evidence to be unreliable notwithstanding that I am satisfied that the plaintiff, in giving his evidence, possessed an honest belief both in the truth and in the accuracy of the evidence given by him in the proceeding.[13]
[12]Grounds 2(a) and (b) of the Notice of Appeal are as follows:
2.The learned trial judge erred in process by drawing incorrect inferences from the following disputed facts.
a.As a result of the appellant’s evidence that described home break-ins etc., and that he thought he was the target of some type of state sponsored stalking program and continues to be so; His Honour concluded that the appellant continued to suffer from a mental illness and as such found the appellant’s evidence unreliable.
b.As a result of the appellant’s evidence that described his Acuphase treatment as something akin to an execution ritual His Honour concluded that this thought process was again symptomatic of the appellant’s ongoing mental illness, and for this reason found the appellant’s evidence unreliable.
[13]McWhinney v Melbourne Health [2012] VCC 660 (‘Reasons’), [13].
His Honour explained the basis of his conclusions with respect to the reliability of the appellant’s evidence as follows:[14]
[14]Reasons, [43]-[44] (citations omitted).
In making this finding, I take into account:
(i)the plaintiff’s pattern of behaviour during the period in question;
(ii)the unchallenged evidence of Dr Jager to which I have referred;
(iii)the evidence of Dr Lester Walton, a consulting psychiatrist, who in the course of his viva voce evidence opined:
Persons with psychotic illnesses, particularly schizophrenia, are more susceptible to interpersonal stress, conflict in the home, that sort of thing, but any type of stress can be a relevant triggering factor of future episodes; that paranoia involved the distrust of others was a condition which could wax and wane over time; and that a person presenting with paranoid delusions involved:
A: ... not necessarily a belief with bizarre content, though sometimes the beliefs are odd, but the hallmark feature of a delusion is the fixity with which it is held.
Q: Sorry, the ________[indistinct]?---
A: The strength of the belief. It is virtually impossible to engage a person who is deluded in rational discussion about, say, whether they might be wrong about it. It doesn’t matter what you say, they will still believe it.
Q: So it’s possible that they could be functioning quite normally in every aspect of their lives?---
A: Well, paranoid psychosis is a serious disorder and would usually be accompanied by at a minimum distress on the part of the sufferer ...
Q: Is it possible for somebody to have this paranoid psychosis and still continue to function in a reasonable manner in their everyday life?---
A: That’s possible. The way I would put it is that there may well be areas of psychological functioning which are relatively preserved and normal.
(iv)the fact that the plaintiff asserts that he continues to be the victim of a pattern of repeated unlawful entries into his unit which occur on a weekly basis, which involve events such as his pumice stone being relocated from its usual position or holes being made in various items of clothing.
It follows that the plaintiff’s mental state as at 2006 clearly raises questions as to the reliability of the plaintiff as a witness in recounting his perception of the way in which his involuntary transfer and admission to the Hospital was managed in September 2006 and the way in which he was treated and assessed, both immediately prior to and during that admission.
In turn his Honour reasoned:[15]
Equally, it is my opinion that my findings as to the plaintiff’s mental state in 2006 support the accuracy of the assessments made by the various doctors and nursing staff employed by the defendant during this period as to the fact that the plaintiff was presenting with a serious mental disorder which was responsible for a pattern of deterioration in the plaintiff’s behaviour.
For these reasons:
(i)I am satisfied that, whilst the plaintiff has a strong belief in both the veracity and accuracy of the evidence given by him as to the inadequacy and inappropriateness of his assessment and management by the servants and agents of the Hospital during the period between 31 August 2006 and 11 September 2006, the reliability of the evidence given by the plaintiff as to the events which occurred during this period is extremely questionable having regard to the fact that it is likely, in my opinion, to be influenced by perceptions which are clouded and by the paranoia from which he was suffering.
(ii)I am of the opinion that I should give little weight to the views expressed by the plaintiff as to his management by the medical and nursing staff of the Hospital or to the evidence given by the plaintiff as to his experiences during that management when I assess the adequacy of that management, particularly if the plaintiff’s evidence is in dispute, or is not the subject of corroboration to some degree, or is such that it seems unlikely when considered on the basis of common life experience.
[15]Reasons, [45]-[47] (citations omitted) (emphasis added).
The unchallenged evidence of Dr Jager to which his Honour referred was comprised in a report tendered by the appellant himself. That report, dated 1 November 2008, expressed the following relevant opinions:
· the appellant’s pre-existing and continuing condition is one of Bipolar I Disorder with a differential diagnosis of Schizoaffective Disorder;
· the appellant continued to express ‘fixed false persecutory beliefs’;
· the appellant’s ongoing mental impairment included being affected by fixed false beliefs, a moderately severe deficit in judgment, episodic mania and depression, and episodic violence; and
· the appellant suffered from a serious mental illness. It carried with it an elevated risk of suicide and moderately severe psychosocial problems. Whilst the appellant remained untreated he is at risk of episodic periods of mania and depression and hospitalisation.
I interpolate that the appellant’s evidence was that he had ceased taking prescribed medication some 15 months prior to the events in issue and had turned instead to the practice of Wing Chun Kung Fu in order to address his condition.
The opinion of Dr Jager that the appellant suffered from ongoing paranoid and delusional thoughts was shared by those who assessed and treated the appellant in September 2006 and by Dr Walton who was called to give an independent expert psychiatric opinion as to the appellant’s state.
The trial judge accepted Dr Jager’s opinion and did so in circumstances where:
(a) it was consistent with detailed evidence as to the appellant’s extensive psychiatric history;
(b) it was consistent with the pattern of the appellant’s behaviour over the period leading up to his involuntary admission; and
(c) it was supported in respect of the conclusions concerning ongoing paranoid delusional thoughts by the further opinion evidence before the Court and the appellant’s account of continuing persecution.
In my view the attack on his Honour’s conclusions as to the reliability of the appellant’s evidence must fail. Indeed it seems to me that the psychiatric evidence compelled the conclusion which his Honour reached and he could not have treated the appellant’s evidence as reliable where it was in dispute, and was not the subject of some independent confirmation, no matter how confident its presentation.
The opinion evidence as to the central fact in issue, namely the appellant’s mental illness
Further, the uncontradicted expert evidence supported the judge’s conclusion that the appellant was affected by mental illness at the time of his assessments by Melbourne Health, his involuntary admission for treatment and the administration of Acuphase.
In turn the appellant faces a difficult task in seeking to demonstrate that such opinions should not have been accepted.
The consequences of a decision based substantially upon a finding as to credit
The appellant faces a further threshold difficulty in seeking to displace the trial judge’s conclusions as to disputed facts. This is the principle of appellate restraint, which requires the Court to respect the advantage that the trial judge had in seeing and hearing the appellant and other witnesses give evidence. As the terms of the appellant’s grounds of appeal recognise, it is necessary in the circumstances of the present case for him to demonstrate that the judge’s conclusions were ‘glaringly improbable’ or ‘contrary to compelling inferences’. It could not be said that they were inconsistent with incontrovertible facts, or uncontested testimony.[16]
[16]Fox v Percy (2003) 214 CLR 118, 125-128 [23]-[29] (Gleeson CJ, Gummow and Kirby JJ).
The initial assessments of the appellant’s need for treatment
On 27 July 2006, the appellant’s brother called Melbourne Health’s Crisis and Assessment Treatment Team (‘CATT’) to refer the appellant to its service. The appellant was known to CATT, having received treatment from it in the past. The appellant’s brother told CATT that the appellant had abused a family friend at the friend’s restaurant. Nurse Bolger of CATT gave evidence that the appellant’s brother was unable to provide CATT with the appellant’s contact details at the time, which meant CATT was not able to contact the appellant for an assessment despite the concern that the appellant had potentially relapsed in his illness.
On 29 August 2006 the appellant met with Ministry of Housing staff to make enquiries about the possibility that there was a master key enabling persons unknown to enter his flat. He was observed by the Ministry staff to have a black eye. The appellant testified that the black eye resulted from being struck when at a city bar on 25 August 2006. He said that at the bar he was argumentative and intoxicated. When police officers attended the bar they were told by witnesses that the appellant had been struck by another patron in self-defence when the appellant attempted to assault him. The police advised the appellant they would not be placing any charges in relation to the incident and the appellant offered to ‘embellish’ his statement so the police could bring the matter before a court. His offer was refused.
In turn on 29 August 2006 a police officer called CATT to refer the appellant to its service. The police officer told CATT that the appellant had attended the police station on four occasions to report a theft when there was no evidence of a theft, and that the appellant was suspicious and paranoid of neighbours and had presented to Ministry of Housing staff with facial bruising. The police officer believed the appellant might be a risk to the community, his neighbours and Ministry of Housing staff. Nurse Bolger gave evidence that following this further referral CATT considered it a matter of urgency that it perform a psychiatric assessment of the appellant.
On 31 August 2006 Nurse Bolger telephoned the appellant and left a message using voicemail. The content of this message was disputed during the trial.
The appellant said Nurse Bolger’s message stated that police had seen him with two black eyes and were concerned for his welfare and asked him to call CATT. The appellant said that this message incensed him greatly, as previous contacts with police had been disheartening and he had never had contact with the police officer that had made the referral.
Nurse Bolger denied leaving a message of the type described by the appellant. Nurse Bolger said that during the message he introduced himself and invited the appellant to speak to him and that that was the full extent of the message. Nurse Bolger further said that the sort of detail referred to in the appellant’s evidence was unnecessary and could be counterproductive in assisting a patient who had lost touch with reality and was already distrustful of others. Nurse Bolger gave evidence that as an experienced CATT member he would not leave the type of message described by the appellant.
Following receipt of the message the appellant attended Waratah Clinic, run by CATT. Nurse Bolger testified that during the attendance the appellant was agitated, angry, paced around the clinic and was ‘really quite furious’. Nurse Bolger gave evidence that when he told the appellant the police had made a referral, the appellant replied, ‘so the cops have dobbed me in’. The appellant then refused to speak to him and walked out of the clinic saying that he would see a solicitor instead. The appellant’s evidence was that his interaction with Nurse Bolger was less than cordial but said that this was because he was agitated that his flat had been broken into, the police had been of no assistance and his meeting with Ministry of Housing staff unproductive. The appellant said he was not suffering from a mental illness at the time.
Nurse Bolger’s evidence was that even though the appellant’s attendance at the clinic was brief, the appellant appeared to be seriously relapsed in his mental illness and Bolger thought that the appellant probably met the criteria in s 8 of the Act for involuntary admission to a mental health service.
Ground 1(d) of the Notice of Appeal is that the trial judge erred in accepting the respondent’s evidence of the psychiatric assessment made by Mr Bolger on 31 August 2006 because it was glaringly improbable. I see nothing improbable in the evidence of Mr Bolger. Further and in any event the assessment he made was of no more than a preliminary nature.
The trial judge concluded that the report of the appellant’s brother to Melbourne Health and the subsequent referral by police to Nurse Bolger, formed a proper basis for Nurse Bolger to seek to assess the state of the appellant’s mental health. This was so regardless of whether the police report of 29 August was accurate in respect of the manner in which the appellant’s facial injury was in fact inflicted. I respectfully agree.
His Honour further preferred Nurse Bolger’s evidence to that of the appellant concerning the phone message of 31 August. Ground 1(a) of appeal alleges that this conclusion was glaringly improbable. I pause to note that the phone message is not the subject of any pleaded claim. Further I do not accept that his Honour’s conclusions were glaringly improbable. As his Honour observed, the evidence of Nurse Bolger ‘made good sense’.
On 2 September 2006 CATT attended the appellant’s home with police support in order to conduct an assessment. The appellant appeared not to be at home so another voicemail message was left on the appellant’s mobile phone. Once again, this message is not the subject of any claim, but forms part of the sequence of events. The trial judge found on the evidence that the message was left by one Beaston. The appellant now asserts that since the trial he has realised it was left by Bolger. There is nothing in this dispute or in a further dispute concerning the precise terms of the message.[17] What is clear is that once the appellant received the message he attended the Royal Melbourne Hospital. He was asked by a staff member to stay for psychiatric assessment but left. The appellant’s evidence was that he believed there was nothing wrong with his mental state and he did not require assessment or treatment.
[17]Ground 1(b)of the Notice of Appeal is that the respondent’s evidence as to the nature and content of ‘Mr Bolger’s’ voice message of 2 September 2006 was glaringly improbable.
On 3 September 2006 Nurse Bolger left a further voicemail message for the appellant. The content of this message was in dispute at trial. The appellant gave evidence that during the message Nurse Bolger said that police were concerned about the appellant as he had two black eyes and they thought that he was making up the fact that he had been assaulted at the bar and asked the appellant to contact CATT to set up an interview. Nurse Bolger denied that he had left a message of this nature and gave evidence that he had no doubt at the time that the appellant thought that the police were lying about him and that to directly challenge the appellant would be inflammatory and distressing for the appellant. As a nurse he would not entertain such a thing. He gave evidence that the purpose of his call was simply to establish communication with the appellant to explain the intentions of CATT and that it desired to assist the appellant.
The appellant returned Nurse Bolger’s call and spoke to Nurse Devenish of CATT. Nurse Devenish gave evidence that during the call the appellant was agitated and said that people were entering his flat and taking things from under his pillow and also that he knew Kung Fu and could protect himself. The appellant gave evidence that at the time of that call he was disturbed and pretty agitated because he thought CATT was probably going to take action to put him in hospital. He gave evidence that at the time he thought nothing was wrong with him and that people were persisting in putting him into hospital when there was no basis for it.
The trial judge did not resolve the conflict on the evidence as to the terms of the voicemail message of 3 September 2006, because it was not asserted by the appellant that this phone call affected his behaviour at the time of his subsequent assessment.[18] Once again, it may be observed no complaint is made with respect to this phone message in the statement of claim. Further and in any event, like reasoning to that applicable to the evidence concerning the first phone message would plainly favour Nurse Bolger’s account.[19]
[18]Reasons, [62].
[19]Ground 1(c) of the Notice of Appeal is that the respondent’s evidence concerning Mr Bolger’s voice message of 3 September 2006 was glaringly improbable.
After the appellant spoke with Nurse Devenish, Nurses Bolger and Devenish attended the appellant’s home with police officers. The evidence of Bolger and Devenish was that the appellant was angry, made threats to protect himself, refused to speak with CATT and wrote down the names of everyone in attendance.
Nurses Bolger and Devenish each determined that the appellant met the criteria in s 8 of the Act for involuntary admission to a health service. Bolger completed a ‘Request for Person to Receive Involuntary Treatment from an Approved Mental Health Service’ form pursuant to s 9 of that Act. Devenish completed an ‘Authority to Transport without Recommendation’ form pursuant to s 9A of that Act. The appellant was then transported by police to Royal Melbourne Hospital.
His Honour accepted the evidence of Nurses Bolger and Devenish as to what occurred.
Although the psychiatric assessment made by Nurse Devenish is not the subject of complaint in the Statement of Claim, the Notice of Appeal seeks to characterise it as glaringly improbable.[20]
[20]Ground 1(e) of the Notice of Appeal is that the respondent’s evidence concerning the psychiatric assessment made by Ms Devenish on 3 September 2006 was glaringly improbable.
The trial judge accepted the evidence of Nurse Devenish that, having regard to her earlier telephone contact with the appellant and the appellant’s presentation at the appellant’s unit on the evening of 3 September 2006, the appellant presented as being paranoid, agitated, insightless, uncooperative and refusing of any treatment and met each of the criteria for involuntary treatment set out in s 8 of the Act. This conclusion was plainly open on the evidence. In my view there is nothing glaringly improbable about such evidence in any material respect.
Upon arrival at the hospital, the appellant was assessed by the psychiatric registrar, Dr Williams. She testified that as a result of the handover from CATT and the appellant’s medical records, she was aware that the appellant had a history of Schizophrenia/Schizoaffective Disorder, and had had a series of involuntary admissions during the previous 11 years. She was also aware of the content of the telephone call from the police made on 29 August 2006 referring the appellant to CATT. She was further aware that the appellant had taken an axe to his car just prior to his February 2003 admission and made a note that the appellant had past charges for property damage. The appellant’s evidence was that this notation was incorrect and that he had not been charged for property damage. Dr Williams said that if the note was incorrect it was simply a mistake made without malice and that the relevant part of the notation for the purpose of her assessment was that the appellant had damaged property rather than whether he had been charged for it.
Dr Williams conducted a mental state examination of the appellant. During the examination the appellant told her that he felt threatened by CATT because he felt that in the past it had inappropriately facilitated his admissions to hospital. He further believed police were ‘making up bullshit about him’, and he thought that someone may have keys to his flat and had been breaking in and taking documents. He said that he could break someone’s leg if he needed to and that he did not think he had a mental illness. Dr Williams concluded that the appellant was insightless, paranoid and suspicious and also that he had been non-compliant with medication for several months. She determined that the appellant met the criteria in s 8 of the Act for involuntary admission to a health service. She completed a ‘Recommendation for Person to Receive Involuntary Treatment from an Approved Mental Health Service’ form pursuant to s 9 of the Act and made an involuntary treatment order pursuant to s 12AA of the Act. She arranged for the appellant to be admitted to the high dependency unit of the hospital and prescribed Risperidone to be taken each night or, if the appellant refused to take it, to be injected.
Dr Williams further said in evidence that during her examination of the appellant he was pleasant and cooperative until she told him that he would need to remain in hospital, at which point he became angry and temporarily left the interview room. The appellant testified that at the time he did not feel that he was mentally unwell, did not feel that he needed to be medicated or admitted to hospital and could not understand why he had been admitted at all. Following Dr Williams’s assessment the appellant completed an ‘Appeal to the Mental Health Review Board’ form which was faxed to the Board that day.
The evidence as a whole demonstrates that the assessment process undertaken by Dr Williams was detailed and comprehensive. The trial judge concluded that the assessment was a reasonable and appropriate one[21] and that he was not satisfied that Dr Williams was in breach of any duty of care that she owed the appellant. Once again, these conclusions were plainly open to the judge. Ground 1(f) of the Notice of Appeal, which asserts that the respondent’s evidence concerning this psychiatric assessment was glaringly improbable, must be rejected.
[21]Reasons, [81].
On the night of 3 September 2006 the appellant refused to take Risperidone. At 4:00 am the next day he awoke and was angry and voiced the opinion that people were lying about him. He returned to bed on the advice of nursing staff.
On 4 September 2006 the appellant was further assessed in accordance with the Act by Professor Doherty. Professor Doherty reviewed the appellant’s medical record before the assessment. During the assessment the appellant told him about his psychiatric history but said that he did not believe that he was mentally ill. The appellant also told Professor Doherty that his flat had been broken into and that documents had been stolen and a shower tap loosened and that he did not know who was breaking in or why, that he had met with and written to the Ministry of Housing regarding master key access. The appellant also told him that he had been beaten about a week and a half earlier and had suffered black eyes as a result and that when he had complained to police about the assault, the police had called CATT.
Professor Doherty assessed the appellant as being barely cooperative during the assessment, mildly hesitant when providing a history, suspicious, mistrustful and lacking insight. He assessed the appellant as suffering from exacerbation of a paranoid psychotic condition and thought the appellant had intense persecutory anxiety and mistaken beliefs of a delusional nature. He determined that the appellant met the criteria in s 8 of the Act for involuntary admission to a health service and completed an ‘Examination of Involuntary Patient by Authorised Psychiatrist’ form. He confirmed the appellant’s involuntary treatment order pursuant to the Act.
The trial judge concluded that the assessment by Professor Doherty was comprehensive and, in the absence of any expert evidence adduced by the appellant to suggest otherwise, he was not satisfied that the appellant had made out any ground upon which that assessment or the orders made by Professor Doherty should be criticised. Once again this conclusion was plainly open to the trial judge. Ground 1(g) of the Notice of Appeal, which asserts that the respondent’s evidence relating to this assessment was glaringly improbable, must also be rejected.
Acuphase
Professor Doherty prescribed Acuphase. The evidence was that this is a slow-acting antipsychotic with a dual purpose. First, it treats psychosis, and secondly, it sedates and tranquilises the patient for a period of about six to eight hours after administration. Professor Doherty and Dr Walton testified that the 125 mg dose prescribed was appropriate for the appellant. Professor Doherty also prescribed Benztropine, which is a fast-acting antipsychotic, and Clonazepam, which is a drug that counteracts the neuromuscular side effects of Acuphase and Benztropine.
The appellant’s own evidence was that after being told by Professor Doherty that he would need to remain in hospital, he became angry. Nurse Bissett, who was working on the appellant’s ward, gave evidence that the appellant was verbally abusive towards staff and performed what appeared to her to be kickboxing moves. She administered Olanzapine and Diazepam to the appellant and told the appellant that those medications would help him with the psychiatric symptoms he was experiencing. She also described the potential side effects of the Olanzapine to the appellant and told him that should those symptoms occur she could provide Benztropine, which would further assist him.
She gave evidence that the drugs initially administered had very little effect on the appellant, who continued to threaten hospital staff. In cross-examination, the appellant said he threatened because he had been involuntarily admitted, was affected by a number of stressors and was wanting to start a Wing Chun Kung Fu business but was stuck in hospital.
Nurse Bissett gave further evidence that she told the appellant that if he did not settle it might be necessary to give him other forms of medication but, despite this warning, the appellant did not settle. A security alert was called (during which four security staff attended). The appellant testified that following the arrival of security staff he settled down, but Nurse Bissett said the appellant continued to kick
his legs out and flay his arms, spat and yelled and was verbally abusive to staff. When cross-examined, the appellant denied he had done these things.
Nurse Hussey, who was the acting unit manager, testified that he authorised the administration of 125 mg of Acuphase in accordance with Professor Doherty’s prescription and seclusion of the appellant. He completed an ‘Approval for Seclusion/Authority for Seclusion’ form. When escorted to the seclusion room by security staff, the appellant continued to be angry and abusive. Nurse Bissett gave evidence that she told the appellant that if he did not settle, then he would need to remain in the seclusion room and staff would be obliged to provide medication which would assist in stopping his aggressive behaviour. The appellant agreed in cross-examination that it was possible Nurse Bissett said this to him.
When the appellant did not settle down Nurse Bissett and Nurse Hussey directed him to lie on his stomach on the bed so that Acuphase could be injected into his buttock. Nurse Bissett said that after some initial resistance, the appellant lay on his stomach on the bed as directed but continued to move around. Before administering Acuphase, she told the appellant about its side effects. In cross-examination the appellant agreed that it was possible Nurse Bissett had told him this.
Professor Doherty and Dr Walton gave evidence that the administration of Acuphase in this situation was highly appropriate.
The appellant’s version of events regarding the administration of Acuphase was as follows:
The manner by which I was administered these injections was one of the most frightening experiences of my life. It began when I was surrounded by Code Grey nursing staff and was told I needed to go somewhere. I was then aggressively marshalled into a small white stark, sterile room with a small white single bed. At that point I did not have any idea what was going to happen. I was then told to pull down my trousers and kneel before a small white bed. Following this one of the people in the room told me in a malicious tone of voice that he was going to give me three injections. Not before long I got the feeling I was becoming the subject of some type of execution ritual.
Soon after the injections I lost consciousness and came in and out of consciousness over the next two days.
Nurse Hussey gave evidence that he was unable to directly recall being involved in the appellant’s treatment but that as the Acting Associate Nurse Unit Manager, he would be ‘very surprised if he hadn’t been present for the administration of Acuphase’. During cross-examination, he said that he would not have allowed things to happen in the manner described by the appellant and that ‘it wouldn’t be performed in that manner.’
The trial judge concluded that the evidence demonstrated the administration of Acuphase was appropriate:
Further, given the plaintiff’s verbal threats, the failure of the Diazepam and Olanzapine which the plaintiff had received to cause a modification of his behaviour, and his performance of Wing Chung movements which the plaintiff concedes may have been interpreted as the plaintiff engaging in “kick boxing”, I am of the opinion that it was not inappropriate that the nursing staff managing the plaintiff at that time interpreted the situation as giving rise to a potential threat to them and accordingly that the decision to administer to the plaintiff one dose of intramuscular Acuphase was made. Further, I am satisfied that in all the circumstances that decision was both reasonable and appropriate.[22]
[22]Reasons, [99].
He also rejected the appellant’s description of the circumstances in which the injection of Acuphase was administered.
In my view there was no error in finding that the evidence of Nurse Bissett was a more likely statement of what occurred. More particularly the following factors favoured that conclusion:
· the expert evidence showed the appellant was subject to paranoid delusions;
· the course of humiliation which he describes is persecutory in character;
· Nurse Bissett was subject to the supervision of Nurse Hussey whose evidence was that he would not have allowed such a course to be followed;
· Nurse Bissett’s account of the course of events is corroborated by her notes and describes a convincing circumstantial process of the escalation of events and appropriate responses; and
· both the evidence of Nurse Bissett and the appellant himself confirm that the appellant was highly agitated prior to the events in issue.
Accordingly ground 1(f) of the Notice of Appeal, which asserts Nurse Bissett’s evidence concerning the administration of Acuphase was glaringly improbable, must also fail.
The further grounds of appeal
The balance of the appellant’s grounds of appeal relate to factual contentions that the trial judge erred either in overall conclusions that he drew from the facts that he found or alternatively that he erred in failing to draw conclusions from the evidence which he should have drawn. There is nothing in these grounds. I have already explained why each of the trial judge’s critical findings of fact was open to him. I shall however briefly address three aspects of the further grounds because they raise additional factual considerations.
It was submitted by the appellant that his Honour should have accepted that evidence that the appellant acted with apparent intelligence and clarity of thought at various points of time in the course of the events in issue counts strongly against a conclusion that he was affected by mental illness.[23] The expert evidence was to the contrary effect and supported the view that, despite apparent clarity of thought, the appellant was subject to paranoid delusions.
[23]Ground 3 of the Notice of Appeal is as follows:
The learned trial judge erred in process by failing to draw following inferences from undisputed facts concerning the appellant’s behaviour relating to his assessment and treatment.
a.The appellant’s displays of anger in response to his assessments to conform with the criteria for involuntary treatment were understandable in light of previous admissions and the circumstances surrounding the 2006 admission.
b.The accuracy and brevity with which the appellant completed his appeal to the mental health review board on 3 September 2006 proves he had had a firm grasp on reality concerning events leading to and including his admission.
c.The appellant’s change in behaviour in response to the threat of additional Acuphase treatment on 5 September 2006 proves he was able to think clearly and intelligently under testing conditions and as such did not conform to the criteria for involuntary treatment.
Further, the appellant placed significant reliance upon the benefits of Wing Chun Kung Fu as resolutive of his mental health issues.[24] Once again, his beliefs in this regard were not supported by the unanimous expert opinion that he was materially affected by serious mental illness at the time in issue, despite the fact he could function satisfactorily in a number of respects.
[24]Ground 4 of the Notice of Appeal is as follows:
The learned judge erred in process by failing to draw inferences from undisputed facts concerning the appellant’s behaviour prior to his admission. It is not in dispute that in 2005 the appellant completed a two year, full time study and practice of Traditional Wing Chun Kung Fu. It is not in dispute that he completed his course objective of level 7 which qualified him as a partial instructor recognized by the World Wing Chun Kung Fu Association. It is also not in dispute that from mid 2005 to July 2006 he carried out the following activities.
a.Studied offender rehabilitation research papers and offender rehabilitation programs in use within the correctional services market.
b.Obtained copies of all medical files from Footscray, Ballarat, Shepparton, and Broadmeadows psychiatric units and identified causes associated with previous involuntary admissions.
c.Carried out full time factory work, from February to June 2006, to build working capital to contribute to the establishment of a Wing Chun business operation.
d.Ceased taking any form of anti-psychotic medication from June 2005 and has remained non-compliant since.
e.Made a proposal to the Victorian Government’s Department of Justice to use Wing Chun based programs for the purposes of offender rehabilitation.
f.Complained to the Equal Opportunity Commission in relation to Justice Department’s dismissal of his Wing Chun rehabilitation proposal.
g.Completed Wing Chun business plans which were approved by Grandmaster William Cheung – Chairman of the World Wing Chun Kung Fu Association.
h.Commenced implementing the initial phase of his Wing Chun business plan.
The two inferences that His Honour may have drawn from the above include the fact that the appellant was able to function effectively without medication for an extended period, and that the remedial effect of his continued Wing Chun practice ensured he maintained good health and well being.
Lastly, ground 5 of the Notice of Appeal is as follows:
The learned trial judge erred in process by failing to draw inferences from undisputed facts concerning the appellant’s post admission stalking experiences. These experiences included further regular break-ins, police non-service, assaults, property damage, police harassment and questionable prosecutions. If His Honour had accepted that the aforementioned activities were in fact a continuation of the 2006 stalking activity and not the result of the appellant’s delusional thought processes; His Honour may have saw reason to accept the appellant’s evidence in place of that of the respondent’s.
The simple answer to this ground is that the factuality of the appellant’s post admission stalking experiences was in dispute. Further, his Honour expressly took account of his evidence in respect of them in the course of his judgment.[25]
[25]See Reasons [43] quoted above.
Other matters
On the appeal the appellant sought to raise a further series of specific factual issues not raised at trial. These include the following:
(a) employees of Melbourne Health (Nurse Bolger and Mr Griffin) had conspired with members of the police located at the Avondale Heights Police Station to create falsehoods about the appellant;
(b) Nurse Bolger had deliberately continued to perpetuate falsehoods about the appellant; and
(c) Melbourne Health (through Nurse Bolger) left a telephone message with the deliberate intent of creating anger in the appellant and thus causing the appellant to fall within the criteria for involuntary treatment.
I accept the submission of Melbourne Health that it is not open to the appellant to raise the above issues on appeal in circumstances where the matters
were not properly raised at trial and could have been met by further evidence at trial.[26]
[26]Whisprun Pty Ltd v Dickson (2003) 200 ALR 447.
Conclusion
For the above reasons, the appeal must be dismissed. In summary:
(a) there was no evidence of procedural non-compliance on the part of Melbourne Health;
(b) the trial judge’s conclusion that the appellant’s evidence was unreliable was plainly open to him;
(c) the trial judge’s conclusion that the assessments complained of in the statement of claim were not negligent was plainly open to him;
(d) the trial judge’s conclusion that the administration of Acuphase involved no negligence was plainly open to him;
(e) the trial judge’s conclusions as to incidental issues of fact were not glaringly improbable; and
(f) in particular, the trial judge’s conclusion that the appellant was materially affected by mental illness at the relevant times of treatment by Melbourne Health was not only open to him but accorded with the weight of the evidence.
MACAULAY AJA:
For the reasons his Honour gives, I agree with Osborn JA that the appeal should be dismissed.
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