TP and MENTAL HEALTH TRIBUNAL - [2019] WASAT 71

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: MENTAL HEALTH ACT 2014 (WA)
CITATION:   TP and MENTAL HEALTH TRIBUNAL [2019] WASAT 71
MEMBER:   MS D QUINLAN, MEMBER
MS M CONNOR, MEMBER
DR F NG, SENIOR SESSIONAL MEMBER

HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   12 SEPTEMBER 2019
FILE NO/S:   MHA 2 of 2019
BETWEEN:   TP
Applicant
AND
MENTAL HEALTH TRIBUNAL
Respondent

FILE NO/S: MHA 3 of 2019
BETWEEN: PM
Applicant
AND
MENTAL HEALTH TRIBUNAL
Respondent

Catchwords:

Mental health - Review of decision of Mental Health Tribunal - Involuntary treatment order - Where order under review expired - Where order under review revoked - Preliminary issue - Whether Tribunal able to undertake its statutory task of review - Whether questions of law raised are in connection with a review - Proceedings lack substance

Legislation:

Interpretation Act 1984 (WA), s 61(1)(b), s 61(1)(e)
Mental Health Act 2014 (WA), s 10, s 11, s 21, s 22, s 23, s 24, s 24(6), s 25, s 26(1)(b), s 30, s 55, s 84, s 85, s 86, s 87, s 88, s 88(a), s 89, s 90, s 386, s 386(1)(a), s 386(2), s 386(3), s 387, s 388, s 390, s 390(1), s 390(1)(a), s 390(2), s 394, s 395, s 398, s 400, s 457, s 493, s 494, s 494(1), s 495, Pt 22
State Administrative Tribunal Act 2004 (WA), s 9, s 13(1), s 17, s 19(4), s 27, s 29, s 29(1), s 47, s 47(1)(a), s 50(1), s 59, Pt 3 Div 3

Result:

Both applications for review dismissed as lacking substance

Category: B

Representation:

MHA 2 of 2019

Solicitors:

Applicant	:	Mental Health Law Centre
Respondent	:	State Solicitor's Office

MHA 3 of 2019

Solicitors:

Applicant	:	Mental Health Law Centre
Respondent	:	State Solicitor's Office

Case(s) referred to in decision(s):

EF and Mental Health Tribunal [2018] WASAT 22
EF and Mental Health Tribunal [2018] WASAT 93
in de Braekt and Legal Practice Board of Western Australia [2019] WASAT 44
Kracke v Mental Health Review Board [2009] VCAT 646
LM and Mental Health Review Board [2006] WASAT 123
LS and Mental Health Review Board [2012] WASAT 76
LS v Mental Health Review Board [2013] WASCA 128
The Queen v The Australian Broadcasting Tribunal and Ors; ex parte Hardiman and Ors (1980) 144 CLR 13

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These two proceedings arise in the State Administrative Tribunal (the Tribunal) pursuant to two applications for review under s 494(1) of the Mental Health Act 2014 (WA) (MHA) of decisions of the Mental Health Tribunal (MHT) detailed as follows:
(a)an application for review in the Tribunal by TP of a decision of the MHT on 25 February 2019 that '[t]he Review is cancelled and is to be re-scheduled' with the reasons given '[n]o doctor here, no current report' provided to the MHT; and
(b)an application for review in the Tribunal by PM of a decision of the MHT on 7 March 2019 that '[t]he Review is cancelled and is to be re-scheduled for a date TBD after 11/3/19' with the reasons given:
Supervising psychiatrist is on leave until 11/3/19. No report. Patient wishes to have the CTO removed. Hearing adjourned to allow patient to dispute need for CTO with Supervising Psychiatrist present. Please reschedule for a date that Supervising Psychiatrist can attend.
TP submits that the MHT erred on 25 February 2019 when cancelling and rescheduling TP's review due to the absence of the treating psychiatrist. It is submitted that the decision by the MHT to cancel and reschedule a review of TP's Community Treatment Order (CTO) was not lawful under the MHA. TP seeks orders in the review in this Tribunal that TP's CTO made by a psychiatrist on 4 February 2019 (TP's February CTO) be revoked.
PM submits that the MHT erred in cancelling and rescheduling PM's review due to the absence of the treating psychiatrist. It is submitted that the decision by the MHT to cancel and reschedule a review of PM's CTO was not lawful under the MHA. PM seeks orders in the review in this Tribunal that PM is no longer an involuntary patient and the CTO made on 5 February 2019 is invalid and set aside.

Preliminary issue to be determined

Before the Tribunal can substantively consider the reviews sought by TP and PM and the questions of law they raise, a preliminary issue arises in relation to both proceedings.
TP's application for review in this Tribunal was lodged on 6 March 2019. TP's February CTO was revoked two days later on 8 March 2019.
PM's application for review in this Tribunal was lodged on 8 March 2019. PM's CTO expired on 4 May 2019. PM is no longer an involuntary patient under the provisions of the MHA.
The preliminary issue which arises for determination in both proceedings is whether, in the facts and circumstances which presently exist, the Tribunal is able to undertake its statutory task of review of either TP's February CTO or PM's CTO.
In order to determine the preliminary issue which arises in both proceedings, the Tribunal must set out all of the relevant background and the submissions on the questions of law raised by both TP and PM. The applicants both seek similar questions of law to be determined by the Tribunal in relation to both of their review proceedings and a similar preliminary issue arises for both proceedings. The Tribunal considers it appropriate to publish joint reasons for both TP and PM on these issues.
In accordance with the Tribunal's directions this preliminary issue is to be determined on the documents. Written submissions were provided by the parties with the last submissions received by the Tribunal on 23 August 2019.

Documents and written submissions before the Tribunal

In addition to the application for review, the Tribunal has the following documents and written submissions before it in TP's review proceedings:
(a)TP's February CTO.
(b)Notice of review for TP scheduled on 25 February 2019.
(c)Decision of the MHT on 25 February 2019.
(d)Transcript of the review by the MHT on 25 February 2019.
(e)Revocation of TP's February CTO made by a psychiatrist on 8 March 2019.
(f)Inpatient treatment order made by a psychiatrist for TP on 10 March 2019.
(g)CTO made by a psychiatrist for TP on 25 March 2018 (TP's March CTO).
(h)Notice of decision of the MHT on 29 March 2019.
(i)Notice of review for TP scheduled on 15 April 2019.
(j)TP's written submissions dated 11 April 2019.
(k)MHT's written submissions dated 22 May 2019 attaching a letter of the same date from the President of the MHT detailing factual background as well as past and present procedures of the MHT.
(l)Further written submissions dated 23 August 2019 submitted jointly by TP and PM on the preliminary issue as requested by the Tribunal at a directions hearing on 12 August 2019.
In addition to the application for review, the Tribunal has the following documents and written submissions before it in PM's review proceedings as follows:
(a)Report of PM's treating psychiatrist dated 27 December 2018.
(b)Continuation of a CTO for PM dated 5 February 2019.
(c)Client management plan for PM dated 26 February 2019.
(d)Notice of review for PM scheduled on 7 March 2019.
(e)Decision of the MHT on 7 March 2019.
(f)Transcript of the review by the MHT on 7 March 2019.
(g)Notice of decision of the MHT on 28 March 2019.
(h)PM's written submissions dated 29 April 2019.
(i)MHT's written submissions dated 29 May 2019 attaching a letter of the same date from the President of the MHT detailing factual background as well as past and present procedures of the MHT.
(j)Further written submissions dated 23 August 2019 submitted jointly by TP and PM on the preliminary issue as requested by the Tribunal at a directions hearing on 12 August 2019.

Reviews of involuntary treatment orders under the MHA

Section 10 of the MHA provides that the objects of the MHA are as follows:
(1)The objects of this Act are as follows
(a)to ensure people who have a mental illness are provided the best possible treatment and care
(i)with the least possible restriction of their freedom; and
(ii)with the least possible interference with their rights; and
(iii)with respect for their dignity;
(b)to recognise the role of carers and families in the treatment, care and support of people who have a mental illness;
(c)to recognise and facilitate the involvement of people who have a mental illness, their nominated persons and their carers and families in the consideration of the options that are available for their treatment and care;
(d)to help minimise the effect of mental illness on family life;
(e)to ensure the protection of people who have or may have a mental illness;
(f)to ensure the protection of the community.
(2)A person or body performing a function under this Act must have regard to those objects.
The MHA provides that, if certain criteria are met, a psychiatrist may decide that a patient is in need of an involuntary treatment order which is defined to be either an inpatient treatment order (ITO) or a CTO. The MHA permits an involuntary patient subject to an ITO to be detained at a hospital and be provided with treatment without the requirement of informed consent to be obtained from the patient. The MHA permits an involuntary patient subject to a CTO to be provided with treatment in the community without the requirement of informed consent to be obtained from the patient. The MHA places an obligation on the psychiatrist, before making an ITO, to consider whether the objects of the MHA would be better achieved by the making of a CTO: see s 21 to s 25 of the MHA.
Section 24(6) of the MHA provides that an ITO must be in force for as brief a period as practicable, be reviewed regularly and be revoked as soon as practicable after the patient no longer meets the criteria for the order. The MHA also provides that during the 'detention period' for which a patient is subject to an ITO, a psychiatrist must review the patient on or within seven days before the order ends.
The MHA also provides, following either an impromptu review or a mandated review by a psychiatrist, that a patient subject to an ITO can have their order revoked, continued or replaced with a CTO: see s 84 to s 90 of the MHA.
In circumstances where treatment in the community can no longer be reasonably provided to an involuntary patient who is subject to a CTO, for instance where the objects of the MHA are no longer being better achieved by a CTO, the MHA provides that the CTO may be revoked by a psychiatrist. In any event if the CTO is not revoked, then by operation of the MHA the CTO is suspended when a referral occurs for an examination by a psychiatrist at an authorised hospital. Following the completion of an examination a psychiatrist must make an order that either the patient is subject to an ITO, a new CTO, continuation of detention for further examination or that the person can no longer be detained. Therefore, the original CTO comes to an end: see s 25(2)(d), s 26(1)(b), s 30 and s 55 of the MHA.
Involuntary treatment orders are also subject to the requirements of a mandatory review by the MHT under s 386 (initial review) and s 387 (periodic reviews) of the MHA to decide whether or not the involuntary patient is still in need of the involuntary treatment order having regard to the criteria specified in s 25 of the MHA.
Section 386 of the MHA prescribes, in the case of an adult, that the initial review period by which the MHT must have reviewed, or commenced the review, of the involuntary treatment order is 35 days from the day on which the order was made.
Relevant to these proceedings and the periodic reviews required, s 387 prescribes in the case of an adult that the periodic review period by which the MHT must have reviewed, or commenced the review, of the involuntary treatment order varies depending on whether on the last review the patient has been an involuntary community patient continuously for less than 12 months (three months periodic review) or more than 12 months (six months periodic review).
If a patient has already had an initial review and they have had an involuntary treatment order cease and a new order come into force within seven days then the provisions of the MHA provide that the involuntary patient has been such for a continuous period. This means for involuntary patients, whilst they may be on a series of ITOs or CTOs and even with a gap of up to seven days between orders, that the periodic review period applies to the time required to have a review by the MHT of their current involuntary treatment order: see s 386 to s 388 of the MHA.
Section 88(a) of the MHA provides that where a psychiatrist, either by a required review examination or at any time during the detention period under an ITO, is satisfied that a patient no longer needs an ITO but is in need of a CTO and makes such an order that the earlier ITO ceases to be in force under the MHA.
Any of the persons specified in s 390(2) of the MHA may apply to the MHT for a review under s 390(1) of the MHA for any of the matters listed, for instance whether the patient continues to be in need of an involuntary treatment order at all (which includes both an ITO and a CTO) or an ITO when regard is had to the criteria in s 25 of the MHA. A review may also be sought as to the appropriateness of the terms of a CTO.
Lastly, Pt 22 of the MHA provides that an involuntary patient who is dissatisfied with a decision of the MHT may apply to this Tribunal for a review of the decision. Section 493 of the MHA defines 'decision' of the MHT to include an order, direction or declaration.

The nature of the Tribunal's review jurisdiction in MHA matters

The State Administrative Tribunal Act 2004 (WA) (SAT Act) sets out the scope of the Tribunal's review jurisdiction in Pt 3 Div 3. Section 29(1) of the SAT Act provides the Tribunal with the corresponding jurisdiction, functions and discretions as those of the MHT under the MHA.
Pursuant to s 27 of the SAT Act, the purpose of the review by the Tribunal is to produce the correct and preferable decision at the time of the review. Section 27 of the SAT Act also provides that the Tribunal:
(a)is not limited to the reasons given by the MHT or the grounds for review set out in the application;
(b)considers the decision afresh at the time of the review; and
(c)may take into account any additional or new information which was not provided at the time the original decision was made.
The Tribunal recently gave consideration to its review jurisdiction, as well as noting the applicant's misconception of its scope, in the Tribunal decision in de Braekt and Legal Practice Board of Western Australia [2019] WASAT 44 at [23][26] as follows:
23.These grounds misconceive the nature of the Tribunal's review jurisdiction. They wrongly focus on errors alleged to have been made by the Board.
24.The Tribunal's task is to consider afresh all of the facts and circumstances and make a decision on the merits of the case; Zampatti v Western Australian Planning Commission [2010] WASCA 149 at [62].
25.A decision on review is given on the evidence presented at the review hearing; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [13]; Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at [23].
26.Although the reasons for the decision under review may throw light on the issues for determination on review, the purpose of a review under s 27(1) of the SAT Act is not to identify error in those reasons. The purpose of the review under s 27(1) is 'to produce the correct and preferable decision at the time of the decision upon review'.
Particular to reviews held in the Tribunal under the provisions of the MHA (as the MHA provided at that time) where new involuntary treatment orders have subsequently been made, the Tribunal considered its role in undertaking the review in LM and Mental Health Review Board [2006] WASAT 123 at [35]-[36] (LM and MHRB) and LS and Mental Health Review Board [2012] WASAT 76 at [24] (LS No. 1).
The Tribunal in EF and Mental Health Tribunal [2018] WASAT 22 (EF No. 1) considered the above two Tribunal decisions and the Tribunal's task of review subsequent to amendments to the MHA. The Tribunal in EFNo.1 at [39] found that it is the particular order that the patient is subject to now that can be reviewed by the Tribunal and not the patient's overall status under that or any subsequent order.
The Court of Appeal also considered the Tribunal's task of review in LS v Mental Health Review Board [2013] WASCA 128 (LS v MHRB) at [131][135] and found as follows:
131.The appellant contends, in effect, that once the appellant had invoked the jurisdiction of the Tribunal by an application under s 148A of the MH Act, the Tribunal should have exercised its jurisdiction and determined whether, on the materials before the Tribunal, the Board's decision on 12 July 2011 to continue the involuntary patient order, was the correct and preferable decision at that time. The appellant contends that the Tribunal erred in law by, in effect, conflating the jurisdiction and powers of the Tribunal with the jurisdiction and powers of the Board. The appellant also relied on the observations of Templeman J in EO to the effect that a person 'is entitled to know whether he has been denied any rights to which he is entitled under the Mental Health Act' [19].
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. The previous appeal procedure in the context of which Templeman J made the decision in EO sheds no light, in my view, on the statutory task of the Tribunal in dealing with an application under s 148A of the MH Act[.]
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.
(Emphasis added)
In a different proceeding to EF No. 1, the President of the Tribunal, his Honour Justice Curthoys (as his Honour then was), in EF and Mental Health Tribunal [2018] WASAT 93 (EF No. 2) found at [31]-[32] that the applicant's submissions, whilst correct in distinguishing EF No. 2 from LS v MHRB (because EF had been a continuous involuntary patient under the MHA), had nonetheless misunderstood the reasoning of the Court of Appeal in LS v MHRB.

His Honour Justice Curthoys followed the reasoning of the Court of Appeal in LS v MHRB when his Honour stated in EF No. 2 at[33]:
The real question of law to be determined is whether the Tribunal is able to carry out its statutory task of review in the circumstances of this case. To answer this, it is necessary to commence with consideration of whether, in the same circumstances, the Mental Health Tribunal would have the power to conduct an initial review of the first order.
In the factual circumstances of EF No. 2 Curthoys J found at [38][40], unlike the situation in LM and MHRB, that the MHT (and the Tribunal standing in its shoes) retained the power to determine the initial review of the first order. Curthoys J went on to conclude at [44]-[45]:
44.… Therefore, while the Tribunal has jurisdiction to review the first involuntary order, it does not have jurisdiction to review the second order until the Mental Health Tribunal has conducted a review of that order and made a decision in relation to it.
45.At the time that the application for review of the first order came for hearing, the first order had been revoked and the second order remained in place but had not been the subject of review by the Mental Health Tribunal. If the Tribunal had then proceeded to review the first order, even if the Tribunal was satisfied that the applicant was not in need of the first order, there is no effective order the Tribunal could make in relation to the first order as it had been revoked. In addition, the applicant would have remained subject to the second order.
His Honour Justice Curthoys then went on to find it would align with the Tribunal's objectives as found in s 9 of the SAT Act that, if the MHT had conducted its review of the second order, it would be appropriate to allow the applicant to amend the application and seek a review of the second order in this Tribunal: EF No. 2 at [46]-[47].
The Tribunal concluded in EF No. 2 at [48] that the answer to the question of law referred to the President was as follows:
… In the circumstances identified, the Tribunal does have jurisdiction to review the first order, but unless the applicant can satisfy the Tribunal that there is some real utility in reviewing an order that is no longer in force, her application for review of the first order should be dismissed pursuant to s 47 of the SAT Act as lacking in substance.

Background TP

On 21 November 2018, a psychiatrist made an ITO for TP for the period 21 November 2018 to 12 December 2018, which was continued on 12 December 2018 for the period 12 December 2018 to 11 March 2019.
On 26 November 2018, pursuant to s 390 of the MHA, the Mental Health Law Centre (MHLC) wrote to the MHT on behalf of TP requesting a review of the ITO made on 21 November 2018. The Tribunal is informed by the MHT that the typical listing time for an application under s 390 of the MHA is approximately three weeks.
Pursuant to s 386(1)(a) and 386(2) of the MHA and s 61(1)(b) and (e) of the Interpretation Act 1984 (WA), the initial review of the ITO had to be completed as soon as practicable and by 27 December 2018.
The MHT conducted an initial review on 17 December 2019 of TP's ITO. The Tribunal is informed by the MHT that this review also served as the review requested by the MHLC under s 390 of the MHA. The MHT determined that TP was still in need of the ITO and that the order remain in place.
On 4 February 2019, a psychiatrist made TP's February CTO. Pursuant to s 88(a) of the MHA, the ITO made on 21 November 2018 ceased to be in force.
TP was an involuntary patient for a continuous period under the provisions of the MHA and therefore a periodic review by the MHT of TP's February CTO was required to occur between 25 February and 18 March 2019.
The MHT conducted a periodic review of TP's February CTO on 25 February 2019. In attendance were TP, the MHLC and Ms Michelle Hall, a mental health officer for Joondalup Community Mental Health. Ms Hall advised the MHT that, due to a breakdown of communication between the clinic and the treating psychiatrist, the treating psychiatrist did not provide an up-to-date medical report and did not attend the hearing. The MHT considered whether it had sufficient evidence to determine if TP was still in need of TP's February CTO. After taking evidence and submissions, the MHT noted the evidence indicated there were issues which could not be resolved in the absence of TP's treating psychiatrist. Firstly, regarding TP's deterioration resulting in his admission to hospital in November, and whether this occurred because he ceased taking his medication. Secondly, regarding TP's capacity to make treatment decisions, given he had indicated to his treating psychiatrist on 18 February 2019 that he would take his medication while under a CTO, but after that would not take it.
Therefore, the MHT found on 25 February 2019 that it could not determine whether TP was still in need of TP's February CTO. Accordingly, the MHT determined it could not complete the review. The MHT ticked the box which ordered that '[t]he review is cancelled and is to be re-scheduled' with the reasons given '[n]o doctor here, no current report' provided to the MHT. The review was subsequently rescheduled to a differently constituted MHT on 18 March 2019 at Joondalup Community Mental Health.
On 6 March 2019, TP's application for review in this Tribunal was lodged.
On 8 March 2019, TP's February CTO was revoked by a psychiatrist.
On 10 March 2019, a psychiatrist made an ITO for TP authorising detention at St John of God Hospital Midland Mental Health Unit (SJOG Midland) for the period 10 March 2019 until 31 March 2019. As explained above, as TP was placed on a new involuntary treatment order within seven days TP is considered to be a continuous involuntary patient meaning that a periodic review by the MHT of the ITO was required (three months) under the MHA and not an initial review (35 days).
As the 18 March 2019 periodic review hearing scheduled at Joondalup Community Mental Health did not proceed due to TP being detained under an ITO at SJOG Midland, the MHT's registry administratively relisted TP's periodic review hearing to the next available date in Midland being 29 March 2019. It is conceded by the MHT that, because of an unfortunate administrative error, the MHLC was not informed of TP's relisted hearing.
On 25 March 2019, a psychiatrist made TP's March CTO. Pursuant to s 88(a) of the MHA, the ITO ceased to be in force and TP was no longer detained at SJOG Midland.
On 29 March 2019, due to no appearance by TP or the MHLC (as MHLC was not given notice), the MHT ordered that the review hearing be vacated and relisted before a reconstituted MHT on a date to be fixed.
On 15 April 2019, the review hearing proceeded before the MHT in relation to TP's March CTO. In attendance were TP, the MHLC and a case manager. The MHT determined that TP was still in need of a CTO and that TP's March CTO remain in force.

Background - PM

PM was an involuntary patient subject to continuous CTO's between 7 March 2014 and 4 May 2019 when the final continuation order for the CTO ended (PM's CTO). Following the initial review, PM's CTO was periodically reviewed by the MHT throughout that period.
On 6 December 2018, the MHT conducted a periodic review hearing of PM's CTO. The MHT determined that PM was still in need of the CTO and that it should remain in place.
On 28 January 2019, pursuant to s 390 of the MHA, the Mental Health Advocacy Service as a mental health advocate on behalf of PM requested the MHT conduct a review of PM's CTO. The review requested by PM under s 390 of the MHA was listed for 7 March 2019. The Tribunal is informed that, whilst the typical listing time for an application under s 390 of the MHA is approximately three weeks, in this instance there was a further two week delay for reasons which are not known.
On 5 February 2019, the treating psychiatrist ordered that PM's CTO was to be continued for the period 5 February 2019 to 4 May 2019.
On 7 March 2019, the MHT commenced the review of PM's CTO as requested by PM under s 390 of the MHA, but could not complete the review. In attendance were PM, case manager Mr Billy Kirkbright, and the MHLC. Mr Kirkbright explained that the treating psychiatrist was on leave and did not complete a medical report prior to departure. The MHT suggested adjourning the hearing until the psychiatrist returned from leave on 11 March 2019 to permit him to give evidence, noting the documents provided to the MHT did not address the criteria under the MHA. The MHT sought submissions on this point from attendees. It was submitted on behalf of PM by the MHLC that the hearing should proceed because the psychiatrist was aware of the hearing, but did not tender evidence to rebut the presumption of capacity. The MHT ticked the box which ordered that '[t]he Review is cancelled and is to be rescheduled for a date TBD after 11/3/19' with the reasons given:
Supervising psychiatrist is on leave until 11/3/19. No report. Patient wishes to have the CTO removed. Hearing adjourned to allow patient to dispute need for CTO with Supervising Psychiatrist present. Please reschedule for a date that Supervising Psychiatrist can attend.
The MHT's Registry relisted PM's review for 28 March 2019 before a reconstituted MHT.
On 11 March 2019, PM's application for review in this Tribunal was lodged.
On 28 March 2019, the rescheduled review proceeded before the MHT who concluded that PM was in need of a CTO and ordered that PM's CTO remain in force.
On 4 May 2019, PM's CTO lapsed and PM is no longer an involuntary patient.

TP's submissions on question of law

TP seeks a determination by the Tribunal on a question of law as to whether it is lawful for the MHT to make a decision to cancel and reschedule an initial or periodic review outlined in s 386 and s 387 of the MHA.
TP submits in summary as follows:
(a)It was not lawful for the MHT to cancel and reschedule an initial or periodic mandatory review under s 386 or s 387 of the MHA.
(b)The review of TP's February CTO was not 'commenced' on 25 February 2019 in accordance with the requirements of the MHA.
(c)TP submits that the review was not 'commenced' because:
(i)if it had been commenced the MHT must have begun to consider the issues relevant to s 395 of the MHA; and
(ii)the only option available to the MHT was to adjourn the review part heard before the same constituted panel of the MHT rather than to cancel and reschedule the review before a reconstituted MHT.
(d)The onus is on the treating team to bring evidence which justifies involuntary treatment under the MHA. Under s 457 hearings can be conducted in the absence of a party if the MHT are satisfied the party has been given notice of the hearing and it is in the best interests of the person concerned in the proceeding for the hearing not to be adjourned.
(e)Even if the MHT had 'commenced' the review of TP's February CTO on 25 February 2019, it was not 'completed as soon as practicable', as required under s 386(3) of the MHA in that it was not completed until 15 April 2019, a delay of some 50 days.
(f)The order sought by TP in his application is for this Tribunal to revoke the CTO issued on 4 February 2019.

PM's submissions on question of law

PM seeks a determination by the Tribunal on a related question of law as to whether it is lawful for the MHT to make a decision to cancel and reschedule a requested review under s 390(1)(a) of the MHA where appropriate notice had been provided to PM's treating psychiatrist and it was in the best interests of PM for the hearing not to be adjourned.
PM submits in summary as follows:
(a)PM has been subject to a CTO for five years.
(b)The onus is on the treating team to bring evidence which justifies involuntary treatment under the MHA.
(c)It is submitted that, pursuant to s 457 of the MHA, it was in PM's best interests that his requested review hearing not be adjourned.
(d)PM's treating psychiatrist was provided with a notice of hearing and demonstrated an awareness of its occurrence through representations made to the case manager, Mr Kirkbright.
(e)Given the profound impact of involuntary treatment we submit it is an important patient right that reviews before the MHT are adequately protected and procedural fairness is awarded to the involuntary patient.
(f)On 7 March 2019, the MHT commenced PM's review in considering the further opinion template and client management plan. Submissions were also made to the MHT in respect to s 457 of the MHA and the notice that had been provided to the treating psychiatrist.
(g)The MHT was aware through the evidence of Mr Kirkbright that PM's treating psychiatrist was referring the question of PM's involuntary treatment status for the consideration of the MHT.
(h)The Tribunal requested that Mr Kirkbright discuss with PM's treating psychiatrist that it was his obligation to establish why PM should remain on an involuntary treatment order and made the decision to 'adjourn' the review hearing.
(i)The MHT did not 'adjourn' the hearing. After obtaining the evidence referred to above, the MHT cancelled the review hearing to be listed before a reconstituted MHT at a later date.
(j)It is not lawful for the MHT to make a decision to cancel and reschedule a review already commenced to be then held before a reconstituted MHT at the detriment of PM where the onus is upon the treating team to establish the criteria of s 25 of the MHA.
(k)The order sought by PM in his application is for this Tribunal to make orders that PM is no longer an involuntary patient and the CTO made on 5 February 2019 is invalid and set aside.

MHT's submissions as to questions of law for TP and PM

Pursuant to what is known as the Hardiman principle, the submissions made by the MHT in both of these proceedings are limited to the powers and procedures of the MHT to the extent any are relevant to either of the applications for review: see The Queen v The Australian Broadcasting Tribunal and Ors; ex parte Hardiman and Ors (1980) 144 CLR 13 at 35-36.
The MHT submits that using the words 'cancelled and to be relisted' before a reconstituted MHT is not determinative as to whether a review has commenced or not, and it is necessary to look at the circumstances of the review to determine whether a review has or has not been commenced. Notwithstanding the orders made by the MHT on 25 February 2019 and 7 March 2019 in relation to TP and PM respectively by way of using a tick box form that '[t]he review is cancelled and is to be re-scheduled', the MHT submits that the effect of both decisions was that the reviews had commenced as required under the MHA and were adjourned by the MHT for proper reasons.
In relation to the question of law raised by both TP and PM, the MHT submits in summary as follows:
(a)There is nothing in the MHA which prohibits a review being adjourned.
(b)Initial and periodic reviews which are to be conducted under s 386 and s 387 of the MHA may be adjourned as they allow for an initial or periodic review to be commenced within the time periods specified in those sections, indicating that a review may not be completed within those periods.
(c)Reviews conducted as requested under s 390 of the MHA, for instance in relation to PM, have no time periods for the MHT to commence and complete a review.
(d)Section 457 of the MHA, by allowing review hearings to proceed in the absence of a party if the MHT satisfied that the party has been given notice of the hearing and it is in the best interests of the person concerned in the proceedings for the hearing not to be adjourned, thereby contemplates adjournments of hearings.
(e)Consistent with the objects of the MHA, the absence of sufficient evidence of the matters referred to in s 25 and s 394 of the MHA is an appropriate reason to adjourn a review proceeding of an involuntary treatment order.
(f)In any event, if the MHT did not conduct a review of an involuntary treatment order in accordance with the time frames set out in s 386 or s 387 of the MHA, this has been found to not invalidate an order: Kracke v Mental Health Review Board [2009] VCAT 646 at [705]-[725].

Applicants' joint submissions on the preliminary issue

In relation to the preliminary issue, the applicants submit jointly in summary that:
(a)The Tribunal has jurisdiction to review a decision of the MHT under s 494(1) of the MHA and s 13(1) of the SAT Act.
(b)Under s 59 of the SAT Act, legal members can answer questions of law or choose to refer a question of law to the President.
(c)These matters are not more appropriately dealt with by way of judicial review in the Supreme Court under s 50(1) read with s 19(4) of the SAT Act.
(d)Neither proceeding should be dismissed under s 47(1)(a) of the SAT Act as frivolous, vexatious, misconceived or lacking in substance, being used for an improper purpose, or otherwise an abuse of process.
(e)There is significant public interest in reviewing the two decisions of the MHT and answering the question of law as to whether it is lawful under the MHA to cancel and reschedule a review hearing which is then heard significantly later in time before a reconstituted MHT.
(f)This is particularly the case where the MHT hearing is a mandatory initial review or mandatory periodic review of continuous involuntary treatment under s 386 and s 387 of the MHA.
(g)Under s 11 of the MHA the MHT must have regard to the principles set out in the Charter of Mental Health Care Principles, which includes in principle 2 that a mental health service must protect and uphold the fundamental human rights of people experiencing mental illness and act in accordance with the national and international standards that apply to mental health services.
(h)The right to a review of involuntary treatment is a fundamental human right enshrined in the MHA. Involuntary patients have a right to a review of an initial involuntary treatment order after 35 days. Involuntary patients have a right to a review of a continuous involuntary treatment order after three months. The reason these rights are enshrined in the MHA is due to the profound nature of involuntary inpatient and involuntary treatment orders. Involuntary treatment orders deprive people of their liberty and their right to self-determination in their choice of treatment.
(i)It is imperative review hearings proceed within the mandated time frames under the MHA, not only to ensure the orders are appropriate but to help people have confidence in the system created to help them and to treat them.
(j)The presumption of capacity must be effectively rebutted to keep someone on involuntary orders under s 25(1) and s 25(2) of the MHA and yet TP and PM were kept on their involuntary treatment orders when their reviews were cancelled and rescheduled.
(k)The MHA provides for the mandatory reviews to be commenced and completed as soon as practicable. This allows the MHT to commence hearing arguments in relation to the orders and, if necessary, adjourn the matter to obtain more information as soon as possible before the same members of the MHT. The MHA does not allow for the MHT review to not be commenced, to be cancelled and to be rescheduled weeks or months later before a differently constituted MHT.
(l)People with mental illness are some of the most vulnerable members of our society and we must ensure they have access to their legal right of review within the specified time frames under the MHA.

MHT's submissions as to the preliminary issue

In relation to the preliminary issue, the MHT submits in summary that:
(a)Pursuant to s 494 of the MHA and s 17 of the SAT Act, the decision of the MHT on 25 February 2019 is a reviewable decision.
(b)Pursuant to s 27 of the SAT Act, the review of a reviewable decision is to be by way of a hearing de novo, is not confined to matters before the decisionmaker, may involve consideration of new material, and is for the purpose to produce the correct and preferable decision at the time of the decision upon review.
(c)The purpose of a review by this Tribunal is not to consider whether the MHT was incorrect when it made the original decision.
(d)It is open for the Tribunal to consider dismissal of both applications under s 47 of the SAT Act given the involuntary treatment order the subject of each review is no longer in force: see LS v MHRB at[134] and EF No. 2 at[47].

Consideration of the preliminary issue

In accordance with the reasoning of the Court of Appeal in LS v MHRB, the Tribunal finds that in the circumstances of these two matters, in that both CTOs are no longer in force under the MHA, that the Tribunal is unable to carry out its statutory task of review of those two CTO's for TP and PM. It is clear that the questions of law raised by both TP and PM arose in their review hearings before the MHT, however the Tribunal finds that they do not arise for consideration in their review proceedings before this Tribunal for the reasons which follow.
Both parties were legally represented in these proceedings. Neither party, despite being given the opportunity to file further submissions in late August and September 2019, elected to update the Tribunal of any further facts in relation to either TP or PM which affected the determination by the Tribunal of the preliminary issue as to whether it is able to undertake its statutory task of review.
On the facts presented, the Tribunal is unable to properly consider whether TP currently fits within the situation as suggested in closing in EF No. 2 at [47]. As was found in EF No. 2, if TP was presently a continuous involuntary patient and TP's current order had been reviewed by the MHT, an amendment to the application could be sought to review his current order. In any event, however, it remains doubtful in those circumstances whether the Tribunal would go back to the circumstances of TP's February CTO review hearing on 25 February 2019 as the focus of a review proceeding is not concerned with alleged errors by the MHT. Further, in any event, this has not been sought by TP. Arguably because what is really being sought by TP is not a review, but a determination of a question of law in the absence of a need for a substantive merits review, which effectively amounts to a request for an advisory opinion from the Tribunal.
The Tribunal finds that what is being sought by both TP and PM, namely a determination of legal questions unrelated to a substantive merits review, misconceives the nature of the Tribunal's review jurisdiction.
The Court of Appeal held in LS v MHRB that the Tribunal's powers under the SAT Act (including its powers of review in s 29) may only be used, relevantly, in connection with the exercise of the Tribunal's review jurisdiction. The Tribunal finds that the questions of law raised by both TP and PM are not in connection with the exercise of the Tribunal's review jurisdiction.
The Tribunal is not satisfied in the case of either TP or PM that the Tribunal is able to undertake its statutory task of review or that there is any real utility in reviewing their respective orders and determining the questions of law raised in circumstances where there are no final orders that the Tribunal could issue following such a review. As detailed above, the proper and sensible legal effect of the provisions of the MHA is that subsequent involuntary treatment orders (or indeed, expiry of such orders) supersedes previous involuntary treatments orders. The Tribunal considers it would be a rare case where such utility could be identified in reviews in circumstances where new involuntary treatment orders under the MHA are in place.
Therefore, the Tribunal concludes that:
(a)it is unable to undertake its statutory task of review in both of the proceedings;
(b)the questions of law do not arise in connection with reviewable proceedings;
(c)there is no utility in attempting such a review and determining the questions of law raised; and
(d)both proceedings should be dismissed as lacking in substance.
The Tribunal empathises with the importance of the issues raised from the perspective of TP and PM and notes the submissions made concerning the fundamental human right to a review of an involuntary patient enshrined in the MHA as well as the vulnerable position of involuntary patients. If those questions of law were raised in relation to a substantive merits review the Tribunal considers it would be open to consider those questions of law.
Whilst the Tribunal is not determining or making any findings on the questions of law raised by the applicants, the Tribunal nonetheless considers it appropriate to observe one point. Thus the Tribunal observes that it may be arguable that the decisions made by the MHT on 25 February and 7 March 2019 (whether characterised as cancelling or adjourning the review) are not reviewable decisions under s 494 of the MHA because they are procedural orders that do not fit within the definition of a 'decision' as defined in s 493 of the MHA.
Further, there is a right under s 398 and s 400 of the MHA for a number of interested people to make an application regarding the validity of an involuntary treatment order. Within six months of an involuntary treatment order ceasing to be in force, or such further time if there are good reasons for the delay, an application may be made to the MHT for a declaration that the order is valid or invalid. The determination of that application by the MHT may also be the subject of an application for review in this Tribunal under Pt 22 of the MHA. The Tribunal considers that what is being sought by both TP and PM in their proceedings is arguably more akin to a declaration made following an application under s 398 of the MHA. This Tribunal cannot consider such questions on review until after the relevant application has been made to the MHT and where a person finds they are dissatisfied with a decision of the MHT regarding validity of an order that person is able to seek a review of that decision in this Tribunal.
There is also a specific provision in s 495 of the MHA for the President of the MHT to apply to this Tribunal for a determination of a question of law that arises in a proceeding before the MHT. This is a specific right provided only to the President. This accords with the Tribunal's findings in these proceedings, following the reasoning in LSv MHRB, that an involuntary patient does not have the right under the MHA to apply for a determination by the Tribunal of a question of law that arises in a proceeding before the MHT unless that question of law also arises in connection with a substantive merits review before this Tribunal.
Therefore, the Tribunal concludes that both of these review proceedings lack substance and determines they should both be dismissed under s 47(1)(a) of the SAT Act.

Orders

Accordingly, the Tribunal will order as follows for each of the proceedings for TP and PM respectively:
MHA 2 of 2019
Pursuant to s 47(1)(a) of the State Administrative Tribunal Act 2004 (WA) the review proceeding is dismissed.
MHA 3 of 2019
Pursuant to s 47(1)(a) of the State Administrative Tribunal Act 2004 (WA) the review proceeding is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS D QUINLAN, MEMBER
12 SEPTEMBER 2019