TC v UD
[2015] VSC 92
•13 March 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
S CI 2015 01154
| TC | Plaintiff |
| v | |
| UD | First Defendant |
| and | |
| UE | Second Defendant |
| and | |
| MONASH HEALTH | Third Defendant |
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JUDGE: | GINNANE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 March 2015 |
DATE OF JUDGMENT: | 13 March 2015 |
CASE MAY BE CITED AS: | TC v UD |
MEDIUM NEUTRAL CITATION: | [2015] VSC 92 |
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ADMINISTRATIVE LAW – Mental Health – Revocation of Community Treatment Order made under Mental Health Act 2014 (Vic) – Whether revocation order valid – Validity of subsequent Inpatient Assessment Order and Inpatient Temporary Treatment Order – Existence of changed circumstances – Improper purpose – Irrelevant consideration – Unreasonableness – Incompatibility with human rights – Mental Health Act 2014 (Vic) ss 11(1)(a), 11(2), 30, 46, 61; Charter of Human Rights and Responsibilities Act 2006 (Vic) s 21.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms K Walker SC | Victoria Legal Aid |
| For the First and Third Defendants | Mr A Solomon-Bridge | Monash Health |
HIS HONOUR:
This urgent application is made in a proceeding that is yet to be commenced. However the plaintiff, by her counsel, has undertaken that she will commence a proceeding by 4.00pm next Monday.[1] The plaintiff’s and the first and second defendants’ names have been anonymised by order of the Court. The first defendant is a psychiatric nurse, and the second defendant is a psychiatrist. The third defendant is Monash Health, which conducts Dandenong Hospital where the plaintiff is an inpatient. The plaintiff seeks an interlocutory injunction that Monash Health be restrained from preventing her from leaving the Hospital.
[1]The plaintiff did commence the proceeding. It names an additional defendant, being the psychiatrist alleged to have made the revocation order on 5 March 2015. As that person was not included as a party in the document headings before the Court on 13 March 2015, that person’s name has not been included in the description of parties contained at the commencement of this judgment.
The case is urgent as it involves the plaintiff’s liberty. I shall therefore give my reasons immediately, subject to later revision. I have been assisted in being able to do so by the clear submissions of counsel.
The second defendant, the psychiatrist, has not been served with the papers, but his employer, Monash Health, has been. The second defendant is about to travel overseas for 10 days, so I have not heard his evidence. The first defendant, the psychiatric nurse, apparently has been served with the papers but is not in a position to come to court today and I have not heard her evidence. So I have not heard evidence from the persons whose decisions are challenged. However, I have received extensive submissions from counsel for their employer, Monash Health.
The grounds of the application are contained in a document, which counsel for the plaintiff provided after the lunch adjournment. The first series of grounds relate to the revocation of the Community Treatment Order made by the Mental Health Tribunal on 5 March 2015. The present application, which itself has not yet been filed, does not seek to challenge that revocation decision. That revocation decision was made by a psychiatrist who has not yet been named as a party to the proceeding. The second series of grounds challenge an Inpatient Assessment Order made by the first defendant, the psychiatric nurse, on 8 March 2015. The third series of grounds challenge an Inpatient Temporary Treatment Order made by the second defendant, the psychiatrist, also on 8 March 2015.
The evidence is that the plaintiff has a significant mental illness. She is facing criminal charges arising from actions allegedly taken against her mother. The plaintiff was remanded at the Dame Phyllis Frost Centre on 21 August 2014 on charges of make threat to kill, threat to inflict serious injury and contravening a family violence intervention order.
On 5 March 2015, the Mental Health Tribunal stated that it was satisfied that, the treatment criteria contained in the Mental Health Act 2014 (Vic) (‘the Act’) being satisfied, the immediate treatment that the plaintiff needed could be provided in the community. The Tribunal made a Community Treatment Order with a duration of six months.
The details of the hearing before the Tribunal are relevant and are summarised in an affidavit by the plaintiff’s solicitor. The solicitor, in submissions to the Tribunal, noted the plaintiff’s history of previous treatment orders. He submitted that the statutory criteria for a compulsory Treatment Order were not satisfied. He referred to the Forensicare reports and the Thomas Embling Hospital Discharge Summary which apparently were on the plaintiff’s medical file. He noted that a non-violence intervention order was in place and had been effective in protecting the plaintiff’s mother from harm. He submitted that the inpatient treatment regime, which was very restrictive of the plaintiff’s freedom, should not double up with the family violence order regime.
The solicitor stated that the plaintiff gave evidence that she wished to return home and live with her mother. She stated that she had had recent contact with her mother and that their relationship had improved. She gave evidence that she believes that her mother had, at times, been replaced by a clone and that she deals with different versions of her mother. Despite this, the plaintiff did not believe she had a mental illness but was prepared to take medication.
The solicitor stated that a psychiatric registrar gave evidence about the plaintiff’s condition and the possibility of a change in her medication. The registrar gave evidence that the treating service believed that a further stay in the Hospital, with its multi-disciplinary team, would be appropriate, so that the plaintiff could receive education about her delusions and be given optimum treatment.
A social worker gave evidence about assistance that had been provided to the plaintiff.
When the Tribunal announced its decision, it expressed concern that although its previous order of one month’s duration was made to facilitate the plaintiff’s transition to treatment in the community, nothing seemed to have been done to facilitate that transition. The Tribunal considered that the plaintiff would benefit from following the Service’s treatment plan, including possibly staying in hospital voluntarily for a short time while case management was established. However, that decision was up to the plaintiff, as the Tribunal was making a Community Treatment Order.
The plaintiff apparently returned to the Hospital. The subsequent events and decisions that were made can only be gleaned from the plaintiff’s progress notes made by medical practitioners and hospital staff. I approach the reading, and interpretation, of the notes with caution, because they were not prepared for the purposes of litigation challenging the decisions that they record and they appear, in places, to represent a summary of events. The authors of parts of the notes, being the first and second defendants, have not had the opportunity of attending court and giving evidence about the significance of their entries in the notes.
The notes suggest that on 5 March 2015, after the Tribunal hearing, the plaintiff was willing to continue to reside voluntarily in the Hospital. The notes also suggest that a psychiatrist, not the second defendant, queried whether there were difficulties in the plaintiff residing voluntarily in the Hospital and receiving treatment when she was subject to a Community Treatment Order. Thereafter, the Community Treatment Order was revoked. The plaintiff continued to reside in the Hospital.
The power to revoke a Community Treatment Order is contained in s 61 of the Act:
61Revocation of Temporary Treatment Order or Treatment Order if treatment criteria do not apply
An authorised psychiatrist who determines that the treatment criteria for making a Temporary Treatment Order or Treatment Order do not apply in relation to a person who is subject to such an Order must immediately revoke the Order.
On 8 March 2015, three days after the Community Treatment Order was revoked, the first defendant made an Inpatient Assessment Order in relation to the plaintiff. The second defendant then made an Inpatient Temporary Treatment Order in relation to the plaintiff.
The power to make an Assessment Order is contained in s 30 of the Act and the power to make a Temporary Treatment Order is contained in s 46 of the Act:
30 Making an Assessment Order
(1)Before a registered medical practitioner or mental health practitioner makes an Assessment Order in respect of a person, he or she must—
(a) to the extent that is reasonable in the circumstances—
(i)inform the person that he or she will be examined by the practitioner; and
(ii)explain the purpose of this examination to the person; and
(b) examine the person.
(2)A registered medical practitioner or mental health practitioner may make an Assessment Order in respect of a person if—
(a)the registered medical practitioner or mental health practitioner is satisfied that the criteria specified in section 29 apply to the person; and
(b)not more than 24 hours have passed since the registered medical practitioner or mental health practitioner examined the person.
(3)In determining whether the criteria specified in section 29 apply to the person, the registered medical practitioner or mental health practitioner may consider information communicated to the practitioner by a person other than the person being assessed.
(4)A registered medical practitioner or mental health practitioner may only make a person subject to an Inpatient Assessment Order if the practitioner is satisfied that assessment of the person cannot occur in the community.
46 Authorised psychiatrist may make Temporary Treatment Order
(1)Subject to section 47, an authorised psychiatrist may make a Temporary Treatment Order in respect of a person who is subject to an Assessment Order or a Court Assessment Order if the authorised psychiatrist—
(a) has examined the person; and
(b)is satisfied that the treatment criteria apply to the person.
(2)In determining whether the treatment criteria apply to the person, the authorised psychiatrist—
(a)must, to the extent that is reasonable in the circumstances, have regard to all of the following—
(i)the person’s views and preferences about treatment of his or her mental illness and the reasons for those views and preferences, including any recovery outcomes that the person would like to achieve;
(ii)the views and preferences of the person expressed in his or her advance statement;
(iii) the views of the person’s nominated person;
(iv) the views of a guardian of the person;
(v)the views of a carer of the person, if the authorised psychiatrist is satisfied that making a Temporary Treatment Order will directly affect the carer and the care relationship;
(vi)the views of a parent of the person, if the person is under the age of 16 years;
(vii)the views of the Secretary to the Department of Human Services, if the person is the subject of a custody to Secretary order or a guardianship to Secretary order; and
(b)may consider other information communicated to the authorised psychiatrist by persons other than the person who was examined.
In applying the provisions of the Act, I have taken into account the objects of the legislation and the mental health principles contained therein, particularly s 11(1)(a) and s 11(2):
11 The mental health principles
(1) The following are the mental health principles—
(a)persons receiving mental health services should be provided assessment and treatment in the least restrictive way possible with voluntary assessment and treatment preferred;
…
(2)A mental health service provider must have regard to the mental health principles in the provision of mental health services.
The plaintiff relies on parts of the progress notes to support the following claims: that the revocation order and the subsequent Inpatient Assessment Order and Inpatient Temporary Treatment Order were invalid; that they were made because the psychiatrist disagreed with the outcome of the Mental Health Tribunal hearing and considered that it was wrong, and; that the psychiatrist considered that the plaintiff required inpatient compulsory treatment, and that, if she sought to leave the Hospital, then an Assessment Order should be made.
The plaintiff also submitted that the revocation order was invalid because there was a failure to consider and form satisfaction as to the treatment criteria, that the decision-maker asked herself the wrong question, and that the decision was incompatible with human rights and unlawful under s 38 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).
In the case of the Assessment Order the plaintiff also submitted that there had been no relevant change of circumstances since the Tribunal’s decision and therefore the power to make the Order was not enlivened and was unreasonable. The plaintiff also submitted that the decision took into account an irrelevant consideration, namely the plaintiff’s desire to leave the Hospital.
The plaintiff relied on the principle stated by Lord Bingham in R (Von Brandenburg) v East London and The City Mental Health NHS Trust that:[2]
[T]he rule of law requires that effect should be loyally given to the decisions of legally-constituted tribunals in accordance with what is decided … a mental health review tribunal is a court to which the law of contempt applies. It follows that no one may knowingly act in a way which has the object of nullifying or setting at nought the decision of such a tribunal.[3]
[2][2004] 2 AC 280.
[3]Ibid [8].
The plaintiff’s argument depends on reading passages in the progress notes which I discussed in argument with counsel. They included the following passages:
It is my opinion that [TC] can not currently be managed in the community without presenting an unacceptable risk to others.
…
If [TC] is unwilling to remain in hospital needs to be assessed as to whether her mental state at the time + current + ongoing risk issues warrant change in status to Temporary Inpatient Order.
If [TC] does not return from leave consideration should be given by mental health practitioner who has reviewed her in last 24/24 whether assessment order appropriate, alternatively notify police of ongoing concerns to mother’s safety.
…
Seen by Dr … to-day, please refer to relevant entry & has been regraded to Voluntary Status. [TC] very happy re same, stating she is happy to comply with plan of care. Advised by medical staff that if she asks for discharge or attempts to leave the ward to a) encourage her to be r/v by a Psychiatrist first b) put on an assessment order if a therapeutic 1:1 is not effective re. staying voluntarily. If [TC] refuses to return to the ward whilst out on programme or escorted leave AWOL policy to be implemented & an assessment order initiated if appropriate.
I am not satisfied that, in respect of the revocation order made on 5 March 2015 and the Inpatient Assessment Order made on 8 March 2015, that there is any serious question to be tried that the relevant decision-makers acted invalidly or without proper statutory authority or applied statutory authority for an invalid purpose. In my opinion, read fairly, the progress notes suggest that while the psychiatrist considered that the plaintiff required inpatient treatment, she left it to the staff who may later be required to make the decision to consider the plaintiff’s condition and make an assessment. Particularly as the authors of the notes have not had an opportunity to take part in this hearing, I am not satisfied that I should draw an inference, even for this interlocutory application, from those notes that the two actions, the revocation order and the Assessment Order, were made for an invalid purpose. I am not satisfied that any of the plaintiff’s grounds challenging those two decisions raise a serious question to be tried.
The third order, the Inpatient Temporary Treatment Order, requires separate consideration because the second defendant made extensive written notes explaining his reasons why he made that order.
I should first mention one other argument made by the plaintiff, and that is that if an invalid Inpatient Assessment Order was made, then any Inpatient Temporary Treatment Order would necessarily be invalid. In view of my findings, it is unnecessary to consider that argument on this urgent interlocutory application, but I have considerable doubt that the legislation was intended to have that effect.[4]
[4]Cf Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.
In respect of the Inpatient Temporary Treatment Order, again all that has to be considered is whether there is a serious question to be tried or a prima facie case that it is invalid. The second defendant made extensive entries in the progress notes of his decision-making process. The plaintiff argued that at the time when that order was made on 8 March 2015, there had been no relevant change in the plaintiff’s circumstances or condition since the Tribunal’s decision on 5 March 2015. The plaintiff also argued: that the second defendant had no bona fide subjective belief in the existence of changed circumstances; that the decision was made for an improper purpose, with the intention of ensuring that the plaintiff remained in the Hospital; that the decision-maker took into account an irrelevant consideration, namely the plaintiff’s desire to leave the hospital; that it was unreasonable to make a decision directed to the detention of the plaintiff when the Tribunal had recently made the Community Treatment Order, and; that the decision was incompatible with human rights.
The plaintiff relied on the decision of McDonald J in XX v WW and The Middle South Area Mental Health Service[5] and the following statement concerning the effect of analogous provisions in the previous legislation, the Mental Health Act 1986 (Vic):
Absent some change in circumstances, a RMP cannot lawfully make a recommendation for an ITO simply because he/she disagrees with the decision of the Board. The power cannot be exercised capriciously or so as to render the Board’s powers nugatory. However, the power to make a recommendation is not confined to the circumstance where the RMP has information not known to the Board which places a significantly different complexion on the case presented to the Board.[6]
[5][2014] VSC 564.
[6]Ibid [97].
It is likely that the second defendant, the psychiatrist, in making the Temporary Treatment Order had no knowledge of what evidence was given by the plaintiff and other persons on her behalf at the Tribunal hearing, or what submissions were made on her behalf. The second defendant may have had constructive notice of the Forensicare report that was before the Tribunal, as it was apparently contained on the Hospital file. In those circumstances, I do not consider that there is a serious question to be tried as to whether the psychiatrist’s decision was invalid. Clearly, he considered that there were circumstances that, applying the relevant treatment criteria, justified the making of an Inpatient Temporary Treatment Order. He stated in the progress notes under the heading ‘risk’:
I note [TC] denies thoughts of harming self or others. However, given her ongoing, active delusional beliefs about her mother, her very poor insight into her illness & need for treatment, and her past forensic history I think she continues to pose a risk to her mother and community clinicians at this time.
The plaintiff submitted that any relevant change of circumstance would have to have occurred between 5 and 8 March 2015. Assuming that is required, the psychiatrist’s notes suggest that the plaintiff presented a different account to him of her perceptions of her mother than she presented to the Tribunal on 5 March 2015. Those circumstances provided the context in which the psychiatrist was entitled to assess the degree of risk that the plaintiff might pose to her mother if the plaintiff was not subject to an Inpatient Temporary Treatment Order.
I would, however, add these comments. I see some difficulty in imposing strict criteria on an authorised psychiatrist when he or she is considering making an Inpatient Temporary Treatment Order, to require them to establish that there are changed circumstances since a Tribunal hearing. This is particularly so when the Tribunal did not give written reasons for its decision. A strict requirement for a change in circumstances would have required the psychiatrist to attempt to discover the circumstances that the Tribunal had taken into account. The psychiatrist had extensive discussions with the plaintiff and recorded different aspects of the plaintiff’s feelings and relationship with her mother than appear to have been presented to the Tribunal. I do not consider that there is a serious question to be tried that the psychiatrist failed to identify a change in circumstances, if indeed he was required to do so.
Had I been required to consider the balance of convenience, I would have agreed with the plaintiff that her pending appeal hearing against the Inpatient Temporary Treatment Order, which is to be heard by the Mental Health Tribunal next Thursday, is not a decisive consideration against granting an interlocutory injunction. That is because the liberty of the plaintiff is in issue and any period of detention is significant: see, for example, s 21 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).[7]
[7]Cf R (Von Brandenburg) v East London and The City Mental Health NHS Trust [2004] 2 AC 280, 291–2 (Lord Bingham).
However, I would have taken into account the second defendant’s assessment of the risk posed by the plaintiff to her mother. The treatment criteria, contained in s 5 of the Act, include ‘because the person has mental illness, the person needs immediate treatment to prevent … serious harm to the person or to another person’. In my view, the risk that the plaintiff posed to her mother would have been a relevant consideration in determining the balance of convenience and would have caused me to refuse the plaintiff’s application on the material presently before the Court.
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