Terpkos v Guardianship Board No. Dcaat-79-1997 Judgment No. D3626

[1997] SADC 3626

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Decision of His Honour Judge Worthington, Assessor Davis and Assessor Patterson (ex tempore)

Hearing

02/06/97.

Catchwords

Community treatment order made by Guardianship Boasrd under s.20 Mental Health Act - evidence misapprehended - conclusion not supported by evidence - criteria under s.20 not made out - order set aside.

Materials Considered

• Mental Health Act, 1993 , referred to.

Representation

Appellant HARRY TERPKOS:
Counsel: Mr J. SWANSON - Solicitors: JAMES H. SWANSON

Respondent S.A. HEALTH COMMISSION:
Counsel: MS K. PAROUCHAIS - Solicitors: CR0WN SOLICITOR

DCAAT-79-1997

Judgment No. D3626

2 June 1997

On Appeal from GUARDIANSHIP BOARD

(Civil)

TERPKOS v GUARDIANSHIP BOARD

Guardianship & Administration Appeal

Judge Worthington with Assessors Davis and Patterson

HIS HONOUR: This is an application for leave to appeal from a decision of the Guardianship Board on 30 January 1997 making a community treatment order under s.20 of the Mental Health Act.There is no need to repeat the details of Mr Terpkos's history.This is contained in the reasons of the Board where it is quite clearly set out. We will simply give a brief overview.

In short the appellant was well until illness developed in late 1995, eventually leading to his admission to hospital.He was exhibiting paranoid behaviour and itinvolved the police and the retrieval of some firearms.In early 1996, Mr Terpkos spent some time at James Nash House and after that,he was transferred to the Adelaide Remand Centre.On release from there,it was intended that he be on oral medication but as was accepted by the Board,he was discharged without a treatment program.

Without medication there was a gradual deterioration in his condition and his behaviour may be most accurately described asisolative.Eventually, after concerns were expressed, police were called, gained entry to his house andhe was found with a knife andboiling water. There is no suggestion that he attempted to use either of these as a weapon, and there is a dispute on the evidence as to whether they were for defence or were being used for some other quite innocent purpose.In any event,Mr Terpkos was admitted to Glenside Hospital on 9 December 1996, and transferred to the Lyell McEwin Hospital, ward 1G, on 24 December.At all times Mr Terpkos has said that although he does not agree that he needs medication, he has a preference for oral medication.

When his treating doctor, Dr Behrens,lodged the application on 3 January, he included a comment that Mr Terpkos appeared to have improved and was no longer a danger to himself or to others, whatever may have been the position before that.By the time of hearing, that is 30 January, Dr Behrens said to the board that Mr Terpkos had been compliant inco-operating with medication.

Dr Behrens said to the Boardthat Mr Terpkos would probably be complaint in the future if there was a good relationship with his doctor - he referred to it as a therapeutic relationship - and said that he had such a relationship with Mr Terpkos.However, Dr Behrens said,as he was not continuing in that position,and as there would be constant changes in staffing, such a relationship could not be ensured over time.He said, and it was accepted by the Board,that it was possible that Mr Terpkos could become non-compliant.

Mr Nigel Davies, who is a registered nurse in ward 1G,told the Board that in the opinion of the team, Mr Terpkos's mental state had improved markedlyand he had been compliant.

Mrs Anita Micallef, from the Office of the Public Advocate, also appeared before the Board.She pointed out that she was there at very short notice but her evidence can be summarised as follows.She noted Dr Behrens's comment about improvement,in the application.She noted that Mr Terpkos was initially resistive but was now a voluntary patient and was coming to terms with his illness and had some insight.

Mr Terpkos explained that there were reasons for his more bizarre and outlandish behaviour in 1995.He told the Board that he did not think he needed medication but rather,he needed someone to talk to.

Ms Micallefgave further evidence,saying that the matters described by Mr Terpkos seemed to her,to involve a major life crisis and she urged the Board to consider a voluntary program.

The Board found on the evidence (p.8 of the Reasons) that it was likely, he would become non-compliant at some point in the future if he was only on a voluntary program and pointed to the previous history.It must be said that the non-compliance in early 1996 after his discharge from the Remand Centre should be viewed carefully. Itis of limited help for the reason accepted by the Board, namely, his discharge without a treatment program.

In our opinion, the finding that it was likelyhe would become non-compliant, is not supported by the evidence. The most that could be concluded from the evidence was that there is a possibility, depending on contingencies themselves not established as likely to occur, that there may be non-compliance.We note that the treatment was not limited to treatment by injection but included a program of oral medication.

The Board found (p9. of the Reasons) that Mr Terpkos could become a danger to himself and others in the future.None of the evidence referred to by the Board or any that was before it of current events relevant to this aspect, i.e. danger to self or to others,pointed to there being a likelihood of that. Apart from the incident that led to hospitalisation, the principal matter referred to by the Board as supporting such an inference, was his behaviour in earlier 1996, some of it almost some 12 months before the event,and in relation to which the Board had earlier accepted that there was at leasta partial explanation.

The Board referred to s.51 and s.20 of the Mental Health Act.Our concernis in relation to s.20(1)(b), (c) and (d).I need not repeat the wording.In our opinion the Board did not disclose any basis for concluding that sub-sections (b) and (c) apply and it did not disclose what balancing exercise it undertook in relation to sub-s.(d) which requires it to consider whether, in all the circumstances,a treatment order should be made, provided the other criteria are fulfilled.

The Board, having referred to the mattersI have summarised, and having said that it was mindful of Ms Micallef's view that Mr Terpkos should not be subject to undue restriction or interference in his life, said (at p9): 'Having decided that in all the circumstances an order for a community treatment order should be made -- .' ,then goes on to consider the period of the order and fixes six months.The Board does not disclose the basis upon which the decision to order treatment was made, in so far as it is relevant to sub-s.(d).

In our opinion, the Board has misapprehended some of the evidence and reached significant intermediate conclusions that are not supported by the evidence. In theresult, the evidence does not disclose that at the relevant time there was a valid basis for making a community treatment order.

On the evidence, there is no doubtthat Mr Terpkos needs a medication program. If he does not take it voluntarily, he may well face a s.20 order for treatment but in our opinion, that does not arise on theevidence presently before the Board or before the Court.

If there is any breakdown in the therapeutic relationship between himself and his treating doctor, it is to be presumed that itwill be observed.Of course, any deterioration in his condition would be noticed by his key worker or histreating doctorat thetime and obviouslysuch steps as may be appropriate can then be taken.

We grant leave to appeal and for these reasons, allow the appeal.The order of the Board is set aside.

I reserve the right to edit these reasons.