TM and MENTAL HEALTH REVIEW BOARD
[2015] WASAT 73
•1 JULY 2015
TM and MENTAL HEALTH REVIEW BOARD [2015] WASAT 73
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 73 | |
| MENTAL HEALTH ACT 1996 (WA) | |||
| Case No: | MHA:5/2015 | DETERMINED ON THE DOCUMENTS | |
| Coram: | JUDGE T SHARP (DEPUTY PRESIDENT) | 1/07/15 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | The application is dismissed | ||
| B | |||
| PDF Version |
| Parties: | TM MENTAL HEALTH REVIEW BOARD |
Catchwords: | Mental health Involuntary patient Involuntary detention order Community treatment order Change in circumstances Hearing de novo Strike out |
Legislation: | Mental Health Act 1996 (WA), s 5, s 26, s 43, s 48-52, s 65-70, s 73-79, s 137139, s 142146, s 148A State Administrative Tribunal Act 2004 (WA) s 27, s 29, s 29(9), s 47, s 47(1)(a) |
Case References: | LM and Mental Health Review Board [2006] WASAT 123 LS v Mental Health Review Board [2013] WASCA 128 |
Summary | In February 2015, TM applied to the Tribunal for a review of a decision of the Mental Health Review Board. The Board's decision was to affirm an order for detention of TM as an involuntary patient.,However, prior to the final hearing at the Tribunal, a community treatment order was made in respect of TM and he was discharged from hospital. TM through his advocate then sought a number of adjournments of this matter, which were all either for the purpose of obtaining legal advice or due to the fact that TM was unable to attend the scheduled hearings. The matter was eventually scheduled for a directions hearing in June 2015. However, by that time TM was again ordered to be detained as an involuntary patient and was once more unable to attend the scheduled hearing.,The Tribunal noted that while TM had continued to be an involuntary patient since the Board's decision, he had since that time been discharged to be treated in the community and then detained once more. The Tribunal determined as follows:,a) If TM is seeking a review of the Board's original decision, there would be no utility in making orders confirming, varying or revoking the Board's decision, as it had been superseded.,b) If TM is seeking a review of his current involuntary treatment order, a review by the Tribunal could be seen as 'usurping' the Board's function of periodic review and should not proceed until it has been reviewed by the Board.,c) If TM is asking the Tribunal to more generally scrutinise the procedures of the Board, and to analyse the validity of the Board's decisionmaking process, then that is not the Tribunal's role in review proceedings.,The application was accordingly dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : MENTAL HEALTH ACT 1996 (WA) CITATION : TM and MENTAL HEALTH REVIEW BOARD [2015] WASAT 73 MEMBER : JUDGE T SHARP (DEPUTY PRESIDENT) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 1 JULY 2015 FILE NO/S : MHA 5 of 2015 BETWEEN : TM
- Applicant
AND
MENTAL HEALTH REVIEW BOARD
Respondent
Catchwords:
Mental health Involuntary patient Involuntary detention order Community treatment order Change in circumstances Hearing de novo Strike out
Legislation:
Mental Health Act 1996 (WA), s 5, s 26, s 43, s 48-52, s 65-70, s 73-79, s 137139, s 142146, s 148A
State Administrative Tribunal Act 2004 (WA) s 27, s 29, s 29(9), s 47, s 47(1)(a)
Result:
The application is dismissed
Summary of Tribunal's decision:
In February 2015, TM applied to the Tribunal for a review of a decision of the Mental Health Review Board. The Board's decision was to affirm an order for detention of TM as an involuntary patient.
However, prior to the final hearing at the Tribunal, a community treatment order was made in respect of TM and he was discharged from hospital. TM through his advocate then sought a number of adjournments of this matter, which were all either for the purpose of obtaining legal advice or due to the fact that TM was unable to attend the scheduled hearings. The matter was eventually scheduled for a directions hearing in June 2015. However, by that time TM was again ordered to be detained as an involuntary patient and was once more unable to attend the scheduled hearing.
The Tribunal noted that while TM had continued to be an involuntary patient since the Board's decision, he had since that time been discharged to be treated in the community and then detained once more. The Tribunal determined as follows:
- a) If TM is seeking a review of the Board's original decision, there would be no utility in making orders confirming, varying or revoking the Board's decision, as it had been superseded.
b) If TM is seeking a review of his current involuntary treatment order, a review by the Tribunal could be seen as 'usurping' the Board's function of periodic review and should not proceed until it has been reviewed by the Board.
c) If TM is asking the Tribunal to more generally scrutinise the procedures of the Board, and to analyse the validity of the Board's decisionmaking process, then that is not the Tribunal's role in review proceedings.
Category: B
Representation:
Counsel:
Applicant : N/A
Respondent : N/A
Solicitors:
Applicant : N/A
Respondent : N/A
Case(s) referred to in decision(s):
LM and Mental Health Review Board [2006] WASAT 123
LS v Mental Health Review Board [2013] WASCA 128
Introduction
1 On 15 November 2014, the applicant, TM, became the subject of an order for detention as an involuntary patient under the Mental Health Act 1996 (WA) (MH Act). On 10 December 2014, TM was transferred from Bentley Hospital to Graylands Hospital, and on 11 December 2014 the detention order was renewed.
2 On 14 January 2015, following a hearing of the Mental Health Review Board (Board), the Board affirmed the order for detention of TM as an involuntary patient.
3 On 3 February 2015, TM applied to the Tribunal for a review of the Board's decision. The Tribunal on 6 February 2015 made orders programming the matter to a final hearing on 27 February 2015.
4 However, prior to the final hearing, on 20 February 2015, a community treatment order was made in respect of TM and he was discharged from hospital.
5 At this time, the Tribunal raised with TM's advocate the possibility that TM may no longer wish a review in this matter, as TM's status had changed considerably since his application was lodged. The matter was adjourned to a directions hearing on 16 March 2015 to allow TM's advocate the opportunity to obtain his instructions.
6 TM's advocate was present at the directions hearing on 16 March 2015, but TM was not in attendance. TM's advocate sought a further adjournment on TM's behalf in order to obtain legal advice.
7 Since that time, the matter was adjourned a number of times, all at the request of TM's advocate, in order to allow him to obtain legal advice and/or due to the fact that TM was unable to attend the scheduled directions hearings.
8 The matter was finally scheduled for a directions hearing on 5 June 2015, although by this time TM was again ordered to be detained as an involuntary patient at the Mimidi Park Mental Health Unit in Rockingham.
9 Prior to that directions hearing, the Tribunal received notice from the senior social worker at Mimidi Park, Ms Shannan Hambly, informing the Tribunal that it would be extremely difficult to transport TM to Perth for the hearing and that TM was adamant that he would not attend a Tribunal hearing by videolink. Ms Hambly requested that the Tribunal consider travelling to Rockingham for an onsite hearing but unfortunately that request could not be accommodated.
10 I had by this stage come to the firm conclusion that the application should be dismissed. I determined to provide TM with written reasons for my conclusion and these are those reasons.
Mental Health Act 1996 (WA)
11 The relevant sections of the MH Act are set out below.
12 Section 5 sets out the objects of the MH Act. These include ensuring that persons with mental illness receive the best care and treatment with the least restriction of their freedom, ensuring the proper protection of patients and the public and minimising the adverse effects of mental illness on family life.
13 Section 26(1) relevantly defines the persons who should be involuntary patients under the MH Act:
Persons who should be involuntary patients
(1) A person should be an involuntary patient only if
(a) the person has a mental illness requiring treatment; and
(b) the treatment can be provided through detention in an authorised hospital or through a community treatment order and is required to be so provided in order
(i) to protect the health or safety of that person or any other person; or
(ii) to protect the person from self-inflicted harm of a kind described in subsection (2); or
(iii) to prevent the person doing serious damage to any property;
and
(c) the person has refused or, due to the nature of the mental illness, is unable to consent to the treatment; and
(d) the treatment cannot be adequately provided in a way that would involve less restriction of the freedom of choice and movement of the person than would result from the person being an involuntary patient.
Orders that mean a person is an involuntary patient
The psychiatrist may if he or she believes that, having regard to section 26, the person should be made an involuntary patient, either
(a) order in writing that the person
(i) be detained in an authorised hospital as an involuntary patient; and
(ii) be admitted for that purpose; or
(b) make a community treatment order in respect of the person.
15 Sections 48 to 52 deal with the periods of detention of involuntary patients as follows. In particular those sections:
a) govern the time period and effect of a detention order (s 48 of the MH Act);
b) require examination of an involuntary patient before the end of a period of detention (s 49(1) of the MH Act);
c) require the release of patients whose treating psychiatrists no longer believe should be involuntary patients (s 49(2) of the MH Act);
d) provide for the continued detention or treatment on community treatment orders for patients whose treating psychiatrists believe should still be involuntary patients (s 49(3), s 50 and s 51 of the MH Act); and
e) provide that an order for release of an involuntary patient may be made at any time (s 52 of the MH Act).
16 Sections 65 to 70 set out the process for making and revoking community treatment orders. Those sections relevantly set out the following principles:
a) no detention order should be made without consideration of a community treatment order (s 65 of the MH Act);
b) a psychiatrist who has examined a patient has the power to make a community treatment order (s 67 of the MH Act);
c) the circumstances under which a community treatment order can be made (s 66 of the MH Act);
d) the terms in which a community treatment order needs to be made (s 68 of the MH Act);
e) the need for the confirmation of a community treatment order by another psychiatrist (s 69 of the MH Act); and
f) the circumstances under which a community treatment order may be revoked (s 70 of the MH Act).
17 Sections 73 to 79 then set out the operation of community treatment orders. Those sections particularly provide for:
a) the duration of community treatment orders (s 73 of the MH Act);
b) review by the supervising psychiatrist (s 75 of the MH Act);
c) the extension of community treatment orders (s 76 of the MH Act);
d) varying community treatment orders (s 79 of the MH Act); and
e) the discharge of a patient from his or her involuntary status (s 78 of the MH Act).
18 Part 6 of the MH Act then sets out the procedure for review of involuntary patient orders by the Board.
19 Sections 137 to 139, and s 142 to s 146 of the MH Act relevantly set out the following aspects of the Board's procedures.
137. Matters to be considered upon review
In making a determination upon a review, the Board is to have regard primarily to the psychiatric condition of the person concerned and is to consider the medical and psychiatric history and the social circumstances of the person.
138. Review to decide if order should continue in effect
(1) After the making of
(a) an order for a person to be admitted to, and detained in, an authorised hospital as an involuntary patient; or
(b) a community treatment order,
(the initial order) the Board is to carry out a review of whether or not the order should continue to have effect.
(2) The review is to be carried out as soon as is practicable after the initial order is made, and in any event not later than 8 weeks after that time.
(3) Subsection (1) only applies if the person has been continuously an involuntary patient since the initial order was made.
(4) Subsection (1) does not apply where an order of the kind mentioned in that subsection is made while a person is an involuntary patient if
(a) a review under this section was previously carried out in respect of the person; and
(b) the person has been continuously an involuntary patient since the previous review.
(1) Not later than 6 months after a review in respect of a person has been carried out under section 138 or this section, the Board is to carry out a further review of whether or not the order should continue to have effect.
(2) Subsection (1) only applies if the person has been continuously an involuntary patient since the last review was carried out.
…
142. Applying for review by Board
(1) An application may be made to the Board, in writing, for the review of
(a) whether a person should continue to be an involuntary patient; or
(b) whether a person should continue to be detained in an authorised hospital as an involuntary patient; or
(c) whether a person who is detained in an authorised hospital as an involuntary patient should have been, or should be, transferred to another authorised hospital; or
(d) whether
(i) the responsibility for supervising the carrying out of a community treatment order; or
(ii) the responsibility for ensuring that a patient receives the treatment outlined in a community treatment order, should have been, or should be, transferred; or
(e) any other decision made in relation to a person who is an involuntary patient, other than a decision under this Part.
(2) An application may be made by the patient concerned, an official visitor, or any other person who the Board is satisfied has a genuine concern for the patient.
(3) An application may be made at any time except within 28 days after the Board has made a determination the making of which involved a consideration of substantially the same issue as would be raised by the proposed application.
143. Board may suspend order etc. pending review
Where an application is made for a review or the Board carries out a review of its own motion the Board may
- (a) suspend the operation of any relevant order; or
(b) restrain the doing of anything, or anything further, under any relevant order,
until the application has been determined, or the review concluded.
The Board may, at any time, carry out a review of the case of any involuntary patient if it considers it appropriate to do so because of any report or complaint it receives or for any other reason.
145. Powers on carrying out review
(1) Subject to this Act, the Board may determine any matter coming before it for consideration and may make such order in respect of a matter as it thinks appropriate.
(2) Without limiting subsection (1) the Board may
(a) order that the person is no longer an involuntary patient; or
(b) order that a community treatment order be made in respect of the person, giving such directions, if any, as it thinks fit in relation to the terms of the order; or
(c) if the person is the subject of a community treatment order, vary the order, and give such directions in relation to the order as it thinks fit.
146. Complaints to Board, Board to enquire into
(1) The Board is to enquire into any complaint made to it concerning
(a) any failure to recognize the rights given by this Act to an involuntary patient; or
(b) any other matter to do with the administration of this Act.
(2) The Board may, either generally or as otherwise provided in the delegation, delegate its functions under subsection (1) to a member of the Board.
(3) Subsection (2) does not limit the power of the Board to delegate its functions under subsection (1) to the Registrar.
…
148A. Applying for review by SAT
(1) A person in respect of whom the Board makes a decision or order who is dissatisfied with the decision or order may, without payment of any fee, apply to the State Administrative Tribunal for a review of the decision or order.
(2) Any other person who, in the opinion of the State Administrative Tribunal, has a sufficient interest in the matter may, with the leave of the Tribunal and without payment of any fee, appeal to the Tribunal against the decision or order.
21 Sections 27 and 29 of the State Administrative Tribunal Act 2004 (WA) (SAT Act)relevantly provide as follows in relation to review proceedings:
27. Nature of review proceedings
(1) The review of a reviewable decision is to be by way of a hearing de novo, and it is not confined to matters that were before the decision-maker but may involve the consideration of new material whether or not it existed at the time the decision was made.
(2) The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.
(3) The reasons for decision provided by the decision-maker, or any grounds for review set out in the application, do not limit the Tribunal in conducting a proceeding for the review of a decision.
29. Tribunal's powers in review jurisdiction
(1) The Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decision-maker in making the reviewable decision.
(2) Subsection (1) does not limit the powers given by this Act or the enabling Act to the Tribunal.
(3) The Tribunal may
(a) affirm the decision that is being reviewed; or
(b) vary the decision that is being reviewed; or
(c) set aside the decision that is being reviewed and
(i) substitute its own decision; or
(ii) send the matter back to the decisionmaker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate,
and, in any case, may make any order the Tribunal considers appropriate.
(4) The fact that a decision is made on reconsideration as required under subsection (3)(c)(ii), does not prevent the decision from being open to review by the Tribunal.
(5) The decision-maker's decision as affirmed or varied by the Tribunal or a decision that the Tribunal substitutes for the decision-maker's decision
(a) is to be regarded as, and given effect as, a decision of the decision-maker; and
(b) unless the enabling Act states otherwise or the Tribunal orders otherwise, is to be regarded as having effect, or having had effect, from the time when the decision reviewed would have, or would have had, effect.
(6) Without limiting subsection (5)(a), the decisionmaker has power to do anything necessary to implement the Tribunal's decision.
(7) Despite subsection (5)(a), the decision as affirmed, varied, or substituted is not again open to review by the Tribunal as a decision of the decision-maker.
(8) Subsection (5)(a) does not affect an appeal under Part 5 against the Tribunal's decision.
(9) To avoid doubt it is declared that this section and section 27 do not extend to requiring or enabling the Tribunal to deal with a matter that is different in essence from the matter that was before the decision-maker.
Frivolous etc. proceedings, dismissal of etc.
(1) This section applies if the Tribunal believes that a proceeding
(a) is frivolous, vexatious, misconceived or lacking in substance; or
(b) is being used for an improper purpose; or
(c) is otherwise an abuse of process.
(2) If this section applies, the Tribunal may order that the proceeding be dismissed or struck out and make any appropriate orders.
(3) The Tribunal's powers to act under subsection (2) are exercisable only by a legally qualified member.
(4) The Tribunal may act under subsection (2) on the application of a party or on its own initiative.
The issue
23 The issue in this matter is that, since the Board made its decision on 14 January 2015, affirming that TM be detained as an involuntary patient, TM's situation has changed significantly. He has since been made the subject of a community treatment order, and released from hospital and then detained again under a subsequent treatment order.
24 TM's application is for a review of the decision made by the Board on 14 January 2015. Under s 27 of the SAT Act the Tribunal must produce the correct and preferable decision as of the date of review. It is not the Tribunal's role to scrutinise the procedures followed by the Board when coming to its decision of 14 January 2015. It is a hearing de novo.
25 The difficulty is that TM appears to be seeking a review of the Board's decision as at 14 January 2015, when there have been two subsequent decisions made, neither of which have been reviewed by the Board.
Authorities
26 This dilemma has been previously considered by the Tribunal and by the Court of Appeal.
27 In LM and Mental Health Review Board[2006] WASAT 123, Judge Eckert held at [66]:
Where a person continues to be an involuntary patient and seeks review by the Tribunal of an order or decision of the [Board] related to either a periodic review or requested review, and the nature of the order to which the person is subject at the time of the application to or decision of the Tribunal has changed (for example, from an involuntary detention order in a treatment facility to a CTO, or where an order has been varied under s 79 of the MH Act) then the Tribunal may review the new order, so long as the person has continuously been an involuntary patient. This principle is subject to the Tribunal not usurping the MHRB's primary review function, as a matter of course.
28 The issue was also considered by the Court of Appeal in LS v Mental Health Review Board[2013] WASCA 128. That matter involved an appeal from a decision of Justice Chaney, the then-President of this Tribunal. His Honour determined that the Tribunal no longer had the power to carry out a review of an order of the Mental Health Review Board after a person had ceased to be an involuntary patient. The Court of Appeal relevantly held at [132] to [135]:
[132] The Tribunal's powers under the SAT Act (including s 29) may only be used, relevantly, in connection with the exercise of the Tribunal's review jurisdiction. The Tribunal's task was to determine whether the Board's decision of 12 July 2011, for the appellant to continue to be the subject of an involuntary patient order, was the correct and preferable decision to make at the time of the Tribunal's review. Thus, the nature of the Tribunal's task in the exercise of its review jurisdiction was to determine whether, as at the date of the Tribunal's review (or more precisely at the date of its determination), the involuntary patient order should continue to have effect …
[133] As it was accepted that by 6 September 2011, the appellant had ceased to be the subject of an involuntary patient order, the Tribunal was unable to carry out its statutory task of review.
[134] That does not mean, however, that the Tribunal lacked jurisdiction to deal with the appellant's application dated 22 July 2011. Nor does it mean that the Tribunal's jurisdiction 'falls away'. Rather, given the nature of its review jurisdiction, the proper power available to be exercised within its jurisdiction was the power to dismiss the proceeding under s 47(1)(a) of the SAT Act on the basis that it was 'lacking in substance' or, possibly, to strike out the proceeding under s 50(1) if the Tribunal considered that the matter was more appropriately dealt with by way of judicial review in the Supreme Court: s 50(1) read with s 19(4) of the SAT Act.
[135] If and to the extent that the Tribunal suggested that it lacked jurisdiction to deal with the application, I would respectfully differ. Nevertheless any error in that regard is immaterial, because in my view the Tribunal, in the exercise of its jurisdiction, properly exercised a power, which was available to it under s 47(1)(a), to dismiss the proceedings.
Conclusion
29 The position in this matter is that, although TM has continued to be an involuntary patient since the Board's decision on 14 January 2015, he has during that period until now been discharged to be treated in the community and then detained once more.
30 Section 29(1) of the SAT Act provides that, in a review proceeding, the Tribunal has the same functions and discretions of the original decisionmaker. Therefore, if the Tribunal conducts a review in this matter, it would be restricted to the powers available to the Board under s 145(2) of the MH Act.
31 It is unclear, but it appears that the applicant is asking the Tribunal to do one of three things.
1) The applicant may still be seeking a review of the Board's original decision. In that case, there is no utility in making orders confirming, varying or revoking the Board's decision.
Any orders made by the Tribunal would have no practical effect on TM's current situation.
2) The applicant may in fact be asking the Tribunal to review his current involuntary treatment order.
Because that order has not yet been reviewed by the Board, a review by the Tribunal could be seen as 'usurping' the Board's primary function of review.
3) The applicant may be asking the Tribunal to scrutinise generally the procedures and processes of the Board, and to make a declaration as to the validity of the decisionmaking process.
The nature of the Tribunal's role in review proceedings is to conduct a hearing de novo based on the merits of the original decision, and not the process by which that decision was reached. If this is what the applicant is seeking, then the application is clearly misconceived.
33 In coming to my decision in this matter, I note in particular s 29(9) of the SAT Act, which provides that:
To avoid doubt it is declared that this section and section 27 do not extend to requiring or enabling the Tribunal to deal with a matter that is different in essence from the matter that was before the decision-maker.
34 TM's circumstances have clearly changed significantly between the time of the Board's review and today. The task before the Tribunal today is therefore substantially different in essence from the matter that was before the Board in January 2015.
35 If TM still seeks review of his involuntary status, I consider that it would be more appropriate for him to first apply to the Board for a review of his current order.
Orders
1. The application is dismissed on the basis that it is misconceived pursuant to s 47(1)(a) of the State Administrative Tribunal Act 2004 (WA).
I certify that this and the preceding [35] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE T SHARP, DEPUTY PRESIDENT
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