TERRY SAMMUT and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2013] AATA 95
[2013] AATA 95
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/1108
Re
TERRY SAMMUT
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
Decision
Tribunal Professor RM Creyke, Senior Member
Date 22 February 2013 Place Canberra The Tribunal varies the decision under review and finds that between 14 September and 12 October 2011, Mr Sammut was undertaking a ‘course of rehabilitation’ in terms of section 23(9) of the Social Security Act 1991 (Cth). As a consequence, he was not in ‘psychiatric confinement’ and hence was entitled to Disability Support Pension for that period.
........................................................................
Professor RM Creyke, Senior Member
Catchwords
Social Security – Disability support pension – Person held in confinement following a charge – Later released as a mentally ill person to a mental health institution – Whether in ‘psychiatric confinement’ – Whether, while in ‘psychiatric confinement’ person was undertaking a ‘course of rehabilitation’ – Decision varied
Legislation
Crimes Act 1914 (Cth) s 20BQ
Mental Health Act 2007 (NSW) ss 4, 14
Mental Health (Forensic Provisions) Act 1990 (NSW) ss 3, 55 and 56
Social Security Act 1991 (Cth) ss 23, 1158Cases
Re Chhit and Secretary, Department of Family and Community Services [2004] AATA 744
Franks v Secretary, Department of Family and Community Services [2002] FCAFC 436
Re Pardo and Department of Family and Community Services [2000] AATA 1105
Re Secretary, Department of Family and Community Services and De Alwis-Edrisinha [2001] AATA 760
Re Secretary, Department of Family and Community Services and Fairbrother [1999] AATA 580REASONS FOR DECISION
Professor RM Creyke, Senior Member
22 February 2013
Introduction
Mr Terry Sammut was in receipt of a disability support pension (DSP) from 25 August 1994.
His DSP was suspended on 31 May 2011 as he was in custody following detention on a charge.
On 17 October 2011, Mr Sammut requested that his DSP be restored from 20 July 2011, that being the date when he said he was ordered to be released from custody to a mental health facility.
On 16 November 2011, the original decision maker decided that the decision not to restore Mr Sammut’s DSP until 13 October 2011 (the day on which he was released from custody) was the correct decision. This decision was upheld by an authorised review officer on 20 December 2011.
On 16 January 2011, Mr Sammut lodged an application for review by the Social Security Appeals Tribunal (SSAT). On 27 February 2011, the SSAT affirmed the decision.
On 22 March 2011, Mr Sammut lodged an application for review with the Tribunal. The matter was heard in Wagga Wagga, NSW, on 20 December 2012. Further evidence was sought following the hearing. That evidence was received on Friday 15 February 2013 and the parties elected to make no final submissions on this evidence.
Background
Mr Sammut was charged with an offence for which, according to a document provided by NSW Department of Corrective Services, he was ‘convicted’ of on 23 August 2011. He was detained in custody from 30 May 2011 to 12 October 2011.
The NSW Department of Correctional Services notified Centrelink on 31 May 2013 that Mr Sammut was in prison awaiting trial and that he was in custody from 30 May 2011. As a consequence, his DSP was suspended from 31 May 2011 (his first full day in custody).
On 2 June 2011, Mr Sammut’s request for bail was refused by the court. The magistrate ordered that the matter be adjourned until 20 July 2011 and that a Justice Health Report be provided. At the request of the Goulburn Local Court, made on 8 June 2011, Dr Jonathan Adams, forensic psychiatrist, provided a psychiatric report on 15 July 2011.
Dr Adams diagnosed ‘depressive disorder with psychotic features and a delusional disorder with comorbid affective illness, alongside the possibility of personality pathology’. He recommended that Mr Sammut not be released into the community but be transferred to a mental health facility ‘to continue his assessment and psychiatric treatment’. As he said, this ‘would allow for his gradual re-integration into the community with the provision of assertive community psychiatric management’. He said while in custody ‘Mr Sammut requires ongoing follow-up with mental health services with a view to improving his mental state further, [to encompass] ongoing adaptation of his biological treatment and psychoeducation’.
On 23 September 2011, a magistrate at the NSW Local Court made an order under the Mental Health (Forensic Provisions) Act 2007 (NSW) section 56(2) that Mr Sammut was a ‘mentally ill person’, that proceedings relating to his charge should be adjourned, and that Mr Sammut be taken to the ‘Statewide Forensic Mental Health Unit at Long [Bay] Hospital’ to be detained there for assessment and treatment under the Crimes Act 1914 (Cth) section 20BQ(1)(d). Mr Sammut was held at Long Bay Hospital until 12 October 2011 as a psychiatric patient when he was released from custody to the Kiloh Centre of the Prince of Wales Hospital.
On 12 October 2011 charges against Mr Sammut were dismissed by a magistrate at the NSW Local Court and his conditional discharge was ordered under section 20BQ(1)(c) of the Crimes Act 1914 (Cth). An order was made that Mr Sammut attend Prince of Wales Hospital or similar mental health facility as directed by a psychiatrist for assessment and treatment and for him to remain at the facility until a psychiatrist assessed him as suitable for return to the community. The order indicated he was there to receive mental health treatment. The order was to be in force for two years. Mr Sammut did attend the Kiloh Centre, Prince of Wales Hospital on release from Long Bay Hospital, but he reported on 12 January 2012, that he had self-discharged on 10 November 2011, in breach of the order and has not returned to the institution.
On 12 October 2011, the NSW Department of Corrective Services issued Centrelink with a discharge certificate stating that Mr Sammut had been in custody from 30 May 2011 to 12 October 2011. On 13 October 2011, his DSP payment was restored.
In the period 30 May 2011 to 12 October 2011, Mr Sammut was housed in five different corrective institutions. These were:
·Junee Correctional Centre, 30 May 2011 to 29 June 2011;
·Bathurst Correctional Centre, 29 June 2011 to 30 June 2011.
·Metropolitan Remand and Reception Centre, 30 June 2011 to 9 July 2011;
·Parramatta Correctional Centre, 9 July 2011 to 17 August 2011;
·Metropolitan Remand and Reception Centre, 17 August 2011 to 14 September 2011; and
·Long Bay Hospital, 14 September 2011 to 12 October 2011.
Legislation
The relevant legislation is found in the Social Security Act 1991 (Cth) (the Act) sections 23 and 1158, the Mental Health (Forensic Provisions) Act 1990 (NSW) sections 3, 55 and 56, the Mental Health Act 2007 (NSW) sections 4 and 14, and the Crimes Act 1914 (Cth) section 20BQ.
Issues
The issue is whether Mr Sammut’s DSP should have been payable from 20 July 2011, or from another date prior to 13 October 2011. The response to that issue depends in particular on whether, during the period Mr Sammut was in psychiatric confinement, he was also undergoing a course of rehabilitation.[1]
[1] Social Security Act 1991 (Cth) (the Act) ss 23(8), 23(9), 1158.
Consideration
Mr Sammut had a number of complaints about government agencies. The Tribunal is considering only one of these, namely, whether his DSP was suspended lawfully between 30 May 2011 and 13 October 2011. His claim is that he should have received DSP from 20 July 2011 when he claims he was ordered to be placed in a mental health institution, and that he was unlawfully detained since he was ultimately discharged. Mr Sammut was concerned that the Tribunal make a finding as to the lawfulness of his confinement.
Mr Sammut was advised by the Tribunal that the issue of the lawfulness of his confinement was not before the Tribunal. He was reminded that he had received legal advice that if he was to pursue a claim for false imprisonment ‘the likelihood of success would be difficult and somewhat remote’.[2] In addition, his claim could not be raised in the Tribunal since it does not have jurisdiction to consider such an issue.
[2] Advice by counsel provided 3 October 2012.
Although Mr Sammut has nominated 20 July 2011 as the date from which he was unlawfully detained, and a further hearing on 20 July 2011 was scheduled, the only evidence of a hearing being held on that date is found in the list of documents provided to the barrister who provided advice on whether Mr Sammut had a claim for wrongful imprisonment. The record refers only to ‘Transcript of proceedings on 20 July at Goulburn Local Court’. Mr Sammut provided no evidence to this effect, nor do any of the records of the NSW Department of Corrective Services give any such indication. Accordingly, in the absence of evidence that any court order was then made, the Tribunal has not been able to rely on this date.
In relation to the claim for DSP, the Secretary contends that during the relevant period between 30 May 2011 and 12 October 2011, Mr Sammut was not entitled to DSP because he ‘was in gaol awaiting trial and later undergoing psychiatric confinement because he was charged with an offence’.
On 23 August 2011, a document of the NSW Department of Corrective Services stated Mr Sammut was ‘convicted’ of an offence on that date. The term ‘conviction’, however, appears to be used for any form of order and does not literally mean ‘conviction’. No conviction order is included in the Tribunal documents. The order made by a magistrate on 23 September 2011 under the Crimes Act 1914 (Cth) section 20BQ states only that Mr Sammut was a ‘person charged’ with an offence.[3] Similarly, the order made on 12 October 2011, referred to dismissal of the ‘charge’ not a conviction of Mr Sammut.[4] The NSW Corrective Services documents also show that Mr Sammut was held on remand throughout the period.
[3] Tribunal Documents, T8, page 44.
[4] Tribunal Documents, T8, page 47.
The NSW Corrective Services document indicates that Mr Sammut was held in remand until his release, and was moved during this period between five corrective institutions in that time, before being sent to the Prince of Wales Hospital’s Kiloh Centre as a forensic patient on his conditional release on 12 October 2011. He had been transferred from a correctional institution to the mental health unit at Long Bay Hospital as a ‘mentally ill person’ following a court order in September 2011. There is dispute about the date this transfer occurred.
The NSW Department of Corrective Services document ‘Inmate Profile Document’ states Mr Sammut became a ‘correctional patient as per section 56(2) Order 15/09/11’. A Centrelink email dated 26 October 2011 noted that ‘NSW Dept. of Corrective Services have advised that the customer was held on remand as a correctional patient in the Long Bay Correction Centre Hospital since 14/09/11’. A further document, the ‘NSW Dept of Corrective Services Conviction, Sentences and Appeals’ record notes for 15/09/11 ‘Order under section 56(2) of the MH (PF) Act 1990 – inmate is mentally ill and must remain in hospital’.
So although there is a magistrate’s order for Mr Sammut’s transfer on 23 September 2011, it appears from the NSW Corrective Services Department documents that Mr Sammut was remitted to psychiatric care under the Mental Health (Forensic Provisions) Act 1990 (NSW) section 56(2) on 14 or 15 September 2011. A report by Dr Bhaswati Bhattacharyya, consultant psychiatrist, for the NSW Mental Health Review Tribunal, and a person who had examined Mr Sammut while in confinement, noted that ‘Mr Sammut was admitted to G Ward at the Long Bay Hospital on the 14 September 2011’. Accordingly, the Tribunal has chosen the earlier date as the correct date on which he commenced psychiatric confinement.
There has been a paucity of information on other key issues in this matter. Mr Sammut is recorded as having contacted Centrelink on 6 September 2011 saying ‘that a magistrate ordered he should be in hospital but he is still in prison’. This was before the magistrate’s order on 23 September 2011. There is no evidence on file in support of this claim. It may refer to an order made by the Goulburn Local Court on 20 July 2011. The Tribunal, despite the parties’ efforts, has not been able to confirm this possibility. Nor are the parties alone in experiencing difficulties in confirming the accuracy of this and other matters relevant to this claim. There are several references in the Centrelink emails saying attempts had been made to obtain information from NSW corrective services institutions, and that in its absence, there was insufficient information to change the decision.
Mr Sammut has not been able, due to his mental condition and his regular change of location, to provide much information. However, following the hearing, he did supply a letter by the NSW Health Care Complaints Commission, dated 24 October 2012, which referred to records the Tribunal has not seen. The letter states, in response to a complaint by Mr Sammut about his treatment while in the Prince of Wales Hospital:
In reviewing the medical records it appears that assessment and treatment were provided in accordance with the Court Order [of 12 October 2011]. In summary the records set out how you were assessed, reviewed and observed. The records show how your medications were monitored and adjusted. At different times, the records make reference to the provision of counselling and diversional therapy. It appears you were also assisted on various occasions by the Welfare Officer in relation to dealings with Centrelink and Housing New South Wales.
That information, although it refers to rehabilitative services while at the Prince of Wales Hospital, is not relevant to the claim since it relates to Mr Sammut’s period after he was released from custody and following the resumption of his DSP.
The Tribunal is grateful to the representative for the Secretary who kindly offered at the hearing to attempt to obtain further information. He did manage to obtain the clinical records during Mr Sammut’s confinement. However, he was not able to obtain other information. These difficulties have prolonged the completion of these reasons and need to be taken into account in these reasons. Evidence was also provided by the representative of the Secretary at the hearing, that the Long Bay Hospital mental health unit was generally not in a position to provide structured services which were rehabilitative in nature, other than the programs referred to in the clinical notes.
Attached to the clinical records is a report by Dr Tuan Nguy, consultant psychiatrist, dated 22 August 2012, who had examined Mr Sammut while he was at the Metropolitan Remand and Reception Centre (MRRC). In his report he confirmed that Mr Sammut was seen by a psychiatrist while at Junee Correctional Centre, and that a medication regime was instituted. The report notes Mr Sammut was transferred to the ‘mental health screening unit at Silverwater [MRCC] on the 17 August 2011 for ongoing mental health assessment and treatment’. He had also noted that Mr Sammut had been assessed by Dr William Knox, another consultant psychiatrist, who had confirmed Mr Sammut was not suffering psychosis. Dr Nguy’s report noted ‘Unfortunately a full comprehensive history and observations have not been able to be achieved in this short period’. He concludes ‘Thus he will require a longer period of observation at the mental health unit and subsequent treatment if required’.
A report dated 3 October 2011 by Dr Bhattacharyya for the Mental Health Review Tribunal noted that on admission on 14 September 2011 to Long Bay Hospital, ‘Mr Sammut was initially managed under safe cell conditions but transitioned to normal cell conditions due to his settled behaviour and compliance with treatment’. Because of his settled behaviour, the report noted he ‘was transferred to F Ward at the LBH on the 29 September 2011’. The report noted ‘He appeared to transition well and reported interacting well with fellow inmates and DCS staff’ and an increase in his medication led to an improvement in his mood and his sleep patterns. He noted ‘There have been no noted behavioural issues and no episodes of selfharm’.
Section 1158 of the Act provides that the DSP is not payable to someone if on the day that the instalment would normally be paid, the person is ‘(a) in gaol; or (b) undergoing psychiatric confinement because the person has been charged with an offence’.[5]
[5] Act s 1158.
According to section 23(5) of the Act, a person is ‘in gaol’ if:
a) the person is being lawfully detained (in prison or elsewhere) while under sentence for conviction of an offence and not on release on parole or licence; or
(b) the person is undergoing a period of custody pending trial or sentencing for an offence.[6]
[6] Act s 23(5).
Mr Sammut was not in gaol ‘while under sentence for conviction of an offence’. In the absence of evidence of any order made by a magistrate which changed his status, the Tribunal finds that Mr Sammut was never convicted of an offence and that throughout his period of incarceration he was only in remand. That means he was ‘in custody pending trial’ until 14 September 2011 when a decision was made, confirmed by the magistrate’s order on 23 September 2011, that he be released to a mental health facility. That finding was confirmed by the terms of the order of the magistrates on 12 October 2011 which referred to dismissal of the ‘charge’. In other words Mr Sammut was ‘in gaol’ in the terms of section 23(5)(b) of the Act until 13 September 2011. That means that under section 1158(a) of the Act he was not entitled to receive DSP between 30 May 2011 and 13 September 2011. The Tribunal affirms the decision under review for that period.
On 14 September 2011, Mr Sammut was found to be ‘suffering from a mental illness’, and was transferred to a mental health institution. That raises the question of whether he was in psychiatric confinement. A person is in ‘psychiatric confinement’ if the person is being held in ‘a psychiatric section of a hospital; or any other place where persons with psychiatric disabilities are, from time to time, confined’.[7] The formal order made on 23 September 2011 directs that Mr Sammut be transferred to the ‘Statewide Forensic Mental Health Unit at Long [Bay] Hospital’ to be detained ‘for assessment and treatment’. The terms of this order confirm that he was in ‘psychiatric confinement’. The Mental Health Unit at Long Bay Hospital is a place ‘where persons with psychiatric disabilities are, from time to time, confined’. As a consequence, from 14 September 2011, Mr Sammut’s status changed from being in gaol pending trial, to being in psychiatric confinement as someone charged with, but not convicted, of an offence.[8]
[7] Act s 23(8).
[8] Act s 1158.
The Act provides that if a person is ‘undertaking a course of rehabilitation’ while being confined in a mental health institution, the person is deemed not to be in psychiatric confinement for the purpose of the Act.[9] In other words, if the person, while in psychiatric confinement, is undertaking a course of rehabilitation, the bar to receipt of DSP is lifted. So the remaining issue is whether Mr Sammut was ‘undertaking a course of rehabilitation’.
[9] Act s 23(9).
A ‘course of rehabilitation’ has been found to require that the person has been involved in:
… rehabilitation activities that are not merely engaged in by him on an ad hoc basis, but which form part of what can be said to be a planned series of activities that may include medical and other treatments directed towards improving the person’s physical, mental and/or social functioning.[10]
[10] Franks v Secretary, Department of Family and Community Services [2002] FCAFC 436 at [50].
The rehabilitation activities may be provided for an uncertain period of time, implicitly rejecting earlier findings that a course of rehabilitation must have ‘a finite duration’.[11] That flexibility is needed to ‘take account of individual needs or the variations between persons in their capacity to achieve their potential’.[12] Such flexibility is needed, in particular, for persons with a mental illness because of the nature of their illness.[13] That does not preclude the course having a goal while acknowledging that it may need to be flexible in approach and application,[14] however, the conclusion of the course of rehabilitation should be able to be determined retrospectively and should not last indefinitely.[15]
[11] Re Secretary, Department of Family and Community Services and Fairbrother [1999] AATA 580 at [21].
[12] Re Pardo and Department of Family and Community Services [2000] AATA 1105 at [59].
[13] Ibid.
[14] Franks v Secretary, Department of Family and Community Services [2002] FCAFC 436 at [45]; Re Chhit and Secretary, Department of Family and Community Services [2004] AATA 744 at [86].
[15] Re Secretary, Department of Family and Community Services and De Alwis-Edrisinha [2001] AATA 760 at [37].
It has also been found that there is no justification for reading the expression ‘course of rehabilitation’ in a narrow way.[16] Nor is it confined, as it is in the context of section 23 of the Act when referring to matters arising under Part III of the Disability Services Act 1986 (Cth), to ‘substantially increasing the capacity of the person to engage in paid employment or to live independently’. As the Full Court of the Federal Court said in Franks v Secretary, Department of Family and Community Services, such a construction is of limited assistance ‘in construing the phrase “course of rehabilitation” in s 23(9)’,[17] where it has its ordinary meaning.[18] As the Court said:
There is nothing in the ordinary meaning of the phrase or in the context in which it appears in the Social Security Act 1991 to suggest that this expression is used in the Act to mean a rehabilitation program with a duration precisely, though provisionally, defined. Nor is there anything to suggest that the phrase in the Act is only satisfied by rehabilitation activities structured by reference to identified milestones towards achieving a precise goal. The boundaries of the activities capable in the circumstances of the particular case of constituting a ‘course of rehabilitation’ within s 23(9) as applied to s 1158(b) are thus wide.[19]
[16] Franks v Secretary, Department of Family and Community Services [2002] FCAFC 436 at [45].
[17] Ibid at [46].
[18] Ibid at [47].
[19] Ibid at [48].
The Court continued:
Provided it is open to the decision-maker on the evidence to conclude that the person in question is undertaking rehabilitation activities that are not merely engaged in by him on an ad hoc basis, but which form part of what can be said to be a planned series of activities that may include medical and other treatments directed towards improving the person's physical, mental and/or social functioning, then, depending on the circumstances of the particular case, it is open to the decision-maker to hold that such activities do constitute ‘ course of rehabilitation’ for the purposes of s 23(9).[20]
[20] Ibid at [50].
As the Tribunal too has noted: ‘In respect to all patients, the overriding objective is to facilitate reintegration into the community and because of the complexities of mental illness, individual programmes are tailored to suit each patient’.[21]
[21] Re Secretary, Department of Family and Community Services and De Alwis-Edrisinha [2001] AATA 760 at [31].
Following the 2 June 2011 hearing of the charge against Mr Sammut, the magistrate adjourned the hearing and requested that a Justice Health Report be provided. Dr Adams provided that report dated 15 July 2011. In that report he diagnosed Mr Sammut as having a ‘depressive disorder with psychotic features and a delusional disorder’, and recommended that Mr Sammut be transferred to a mental health facility ‘to continue his assessment and psychiatric treatment’, to permit his ‘gradual reintegration into the community’ and recommended that while in custody he receive mental health services including ‘biological treatment and psycho-education’ to improve his mental state. In other words, the recommendation was that he receive rehabilitative treatment to enable him to better manage his condition with the aim of returning him to live in the community.
The magistrate’s order on 23 September 2011, also recommended that he be transferred to a mental health institution for ‘assessment and treatment’. In addition, the conditional order dismissing the charge against Mr Sammut on 12 October 2011 was that Mr Sammut be released into a mental health institution for assessment and treatment until he was certified as fit to return to the community. Both orders envisaged ‘treatment’ to enable Mr Sammut to leave hospital, that is, a return of Mr Sammut to a state when he could function in the community, albeit the term ‘rehabilitation’ was not used.
No specific rehabilitation plan has been provided in evidence. No witness gave evidence that Mr Sammut was being ‘rehabilitated’ in the sense of receiving treatment and services to enable him to live in the community while he was in any of the five correctional institutions and in particular, while he was in the mental health unit in Long Bay Hospital.[22] That meant the Tribunal’s assessment was confined to the written material provided.
[22]This included the clinical notes of Mr Sammut’s treatment while he was in confinement. These notes indicate that from 30 May 2011 until July 2011, Mr Sammut was under constant surveillance as an inmate requiring intensive care. The notes record that Mr Sammut was on a waiting list for seeing a doctor for a nicotine replacement therapy program. He was also referred to psychology on 29 July 2011. The records generally note he was compliant in taking his medication, but continued to have some bizarre persecutory beliefs and in August 2011 he was still assessed as having a paranoid personality.
However, from 29 July 2011, there are multiple references in the clinical notes to a ‘Plan’ for Mr Sammut. In particular, there are discussions of Mr Sammut’s release to a mental health institution in the clinical notes in late August 2011 that indicate a degree of urgency about development of a ‘Plan’.
A Plan was clearly developed since on 30 August 2011, the notes refer to discussion of a ‘Plan’ with the patient ‘who disagreed with many things on “Plan” (see altered copy in file)’ and that ‘Pt [patient] plan unsigned’. On 1 September 2011, the notes refer to ‘Schedule & d/c [discussion] plan needs to be clarified’ and that ‘plan’ was to be ‘cleared’. On 1 September 2011, the ‘plan’ was recorded ‘to be cleared’. On 4 September 2011, the note says ‘Plan. Discuss plan with “head nurse’ tomorrow’. On 10 September 2011, the note said: ‘Plan. Patient placed on a RIT [Risk Intervention Treatment]’. References to a Plan continue until his release from Long Bay on 12 October 2011. The issue is whether there is sufficient evidence that that Plan was rehabilitative, and could constitute a ‘course of rehabilitation’, that is, ‘medical and other treatments directed towards improving the person’s physical, mental and/or social functioning’[23] from 14 September 2011.
[23] Franks v Secretary, Department of Family and Community Services [2002] FCAFC 436 at [50].
The Tribunal has been prepared to infer that the introduction of a ‘Plan’ in late July 2011, although not ‘cleared’ until 1 September 2011, was in response to the recommendations of Dr Adams in his report of 15 July 2011, namely, to develop a program which would enable Mr Sammut to return to the community. Such a recommendation was rehabilitative in intention and provides the context in which the Tribunal’s assessment occurs.
The Tribunal notes that Mr Sammut’s total period of confinement was only 4.5 months. In that period, the longest time he spent at any one institution was four weeks during his initial incarceration at Junee Correctional Centre, five weeks at the Parramatta Correctional Centre until 17 August 2011, and the four weeks he spent at the Long Bay Hospital after his transfer there as a mentally ill person, prior to his conditional discharge in October. In each change of institution there was a need for re-assessment and a decision about appropriate treatment, particularly as Mr Sammut has a history of flare-ups of mood and behaviour when he is frustrated. In these circumstances it was not surprising that references in the clinical notes are generally confined to the level of surveillance to which Mr Sammut should be subject, his diet and exercise, and an evaluation of his behaviour. These were what could be expected as treatment of a person with mental illness on intake into each different facility, including a mental health facility. The limited time Mr Sammut spent in any one institution did not facilitate the implementation of another kind of rehabilitation program, as was acknowledged in the report of Dr Nguy. In any event, as noted, there was evidence that the Long Bay Hospital mental health unit was not in a position to provide a range of other services to patients.
The document containing that Plan has not been provided to the Tribunal. Nonetheless, the evidence available indicates that as with high risk patients such as Mr Sammut, a program was implemented, initially for management under safe cell conditions, until he graduated to normal cell conditions due to his settled behaviour and compliance with treatment.
In the case of a mentally ill person such as Mr Sammut, this procedure was standard as is borne out by the clinical notes. These notes indicate that the same process occurred each time Mr Sammut changed institutions. For example, from 14 September 2011 until 28 September 2011, following Mr Sammut’s reception into the mental health unit at Long Bay Hospital he was initially assessed by Dr Bhattacharyya, a consultant psychiatrist, on 15 September 2011, who diagnosed ‘major depression, underlying paranoid psychosis, and ongoing suicidal ideation’. As a consequence he was placed in a safe cell regime, he was under constant surveillance, was confined to his cell, and dressed in a ‘modesty gown’, that is, not the normal institutional clothes (‘greens’) worn by those patients permitted to interact with others and to undertake programs including an exercise program. He was not permitted to wear ‘greens’ until 20 September 2011.
For the first couple of days after his intake he was not permitted to wear his glasses due to concern about self-harm, and these were again removed when he became irritable after a court hearing on 16 September 2011. He was not permitted his copy of the Quran until 18 September 2011. Mr Sammut had converted to the Muslim faith while in confinement and he claimed he read the Quran five times a day, an activity which he said he found to be calming. It was not until 27 September 2011 that he was moved to a non-camera cell and to a more open ward on 28 September 2011, that is, a fortnight after his intake. This followed regular reports that he was compliant with his medication, and with the ward routine, that he was sufficiently settled in his sleep and eating patterns and was able to interact appropriately with staff and other patients. He was required to undertake an ECG (electrocardiogram) and also had blood tests on both 18 September 2011 and on 3 October 2011.
By 30 September 2011, Mr Sammut had an expectation that he would be released at the time of the next court order, which would also have inhibited the introduction of any more structured program if such was available. The notes also record that Mr Sammut was expecting a visit by ‘Welfare’ on 6 October, which was due to take place on 7 October 2011. He was recorded as going to the oval with peers on 5 October 2011, and that he attended Mental Health Day with his peers on 12 October 2011, prior to his court hearing and release. These are activities which indicate a progression towards release into the community.
This history of his treatment while in psychiatric confinement was standard treatment for someone in the position and with the conditions of Mr Sammut. Initially his activities were severely curtailed during the assessment period, to ensure he complied with medication and to monitor his interaction with staff and other patients, and his diet and sleep patterns. The Tribunal also notes the evidence that Long Bay Hospital was not in a position to provide other rehabilitation services, and that, in particular for someone on remand who is expecting shortly to be released, longer term programs would not have been provided.
Mr Sammut was on medication which was regularly monitored, he saw a number of psychiatrists, a psychologist, and several mental health nurses and was on nicotine patches, a nicotine replacement therapy program introduced at his request prior to 14 September. He had apparently also received counselling in relation to his behaviour and alternative ways he could respond when he was frustrated. These steps and programs were designed to restore Mr Sammut’s mental health and to assist him to transition into the community.
The Tribunal finds accordingly, that in the period 14 September to 12 October 2011, Mr Sammut was undertaking a ‘planned series of activities’ which included ‘medical and other treatments directed towards improving [his] physical, mental and/or social functioning’, that the program involved assessment and treatment, following observations by psychiatrists, and mental health nursing staff, titration of his medication, counselling, and assistance by a Welfare officer. The program was a graduated regime as he demonstrated his compliance with his medication and his ability to interact appropriately with others in the institution. The program was necessarily short-term as it was expected he would shortly be released, and according to the evidence, may have been all that the institution could provide, particularly for someone in remand. Although no formal plan has been sighted by the Tribunal, it has inferred that these activities were in response to the recommendation of Dr Adams that there be a rehabilitative program for Mr Sammut to enable him to return to the community.
The Tribunal therefore varies the decision under review and finds that between 14 September and 12 October 2011, Mr Sammut was undertaking a ‘course of rehabilitation’ in terms of section 23(9) of the Act. As a consequence, he was not in ‘psychiatric confinement’ and hence was entitled to DSP for that period.
I certify that the preceding 55 (fifty -five) paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member .......................................................................
Associate
Dated 22 February 2013
Date of hearing 20 December 2012 Date final materials received 15 February 2013 Applicant In person Respondent In person Solicitors for the Respondent Program Litigation and Review Branch, Department of Human Services
Cf Re Pardo and Secretary, Department of Family and Community Services [2000] AATA 1105; Re
Chhit and Secretary, Department of Family and Community Services [2004] AATA 744.
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