Wilson v Mental Health Review Board
[2000] VSC 404
•6 October 2000
SUPREME COURT OF VICTORIA
COMMON LAW DIVISION
| Not Restricted |
No. 5142 of 2000
| RICHARD WILSON | Appellant |
| and | |
| MENTAL HEALTH REVIEW BOARD AND OTHERS | Respondents |
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JUDGE: | O’Bryan, J | |
WHERE HELD | Melbourne | |
DATES OF HEARING: | 27 & 28 September 2000 | |
DATE OF JUDGMENT: | 6 October 2000 | |
CASE MAY BE CITED AS | Wilson v Mental Health Review Board | |
MEDIUM NEUTRAL CITATION | [2000] VSC 404 | |
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MENTAL HEALTH ACT 1986; INVOLUNTARY PATIENT;
COMMUNITY TREATMENT ORDER; APPEAL FROM
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr Bingham | Sophie Delany Mental Health Legal Centre |
| For the Respondent | Mrs Tate | Victorian Government Solicitor |
HIS HONOUR
This is an appeal against an order made by the Victorian Civil and Administrative Tribunal constituted by a Deputy President on 24 March 2000. The Tribunal had reviewed a decision of the Mental Health Review Board, that the continued detention of RW (the appellant) as an involuntary patient, subject to a community treatment order, was necessary. The Board’s decision was published on 23 July 1999. RW submitted through his counsel that the Board had no jurisdiction to conduct a review of his continued detention as an involuntary patient because he was not an involuntary patient since 25 June 1999 but the Board disagreed.
By S.120 of the Mental Health Act 1986 a person whose interests are affected by a determination of the Board may apply to the Tribunal for review of the determination.
It is first necessary to explain the context in which the Board made its decision on 23 July 1999. It is set out in the reasons for decision of the Tribunal between paragraphs 3 to 15 which I shall condense.
Before doing so, it will be convenient to refer to two statutory expressions defined in the Mental Health Act 1986 (The Act). The first is: Community Treatment Order (CTO). CTO means “an order requiring treatment for mental illness of a person who is at large in the community but does not apply to a person who is in a prison or a patient in an approved mental health service”. It is curious that the definition includes the two exceptions for all the words following ‘but’ are redundant. The second is: Involuntary Patient. Involuntary patient, relevantly, means “a person admitted to an approved mental health service under –
(a) Division 2 of Part 3 (including a person whose detention and treatment is continued under Section 12A(4)or12 (c);
(b) or deemed to be an involuntary patient under Section 13 or 14.
RW has a long history of mental illness, diagnosed as schizophrenia, a psychosis characterised by disturbances in thought and behaviour. The relevant history begins on 30 May 1998 when RW was admitted to hospital as an involuntary patient. He was discharged from hospital on 25 June 1998 when he was placed on a CTO and deemed to be an involuntary patient.
By S.14 of the Act, if a person satisfies the 5 criteria specified in sub-section (1A) and the authorised psychiatrist considers that a CTO is appropriate, the authorised psychiatrist may make a CTO instead of confirming the admission of the person to an approved mental health service as n involuntary patient or continuing to detain the person in an approved mental health service.
The section applies to two classes of person:
(i) a person admitted to an approved mental health service and waiting confirmation of admission.
(ii) a person detained in an approved mental health service.
The making of a CTO is discretionary. An order may be made by the authorised psychiatrist:
(i) if a person satisfies the 5 criteria specified in sub-section (1A); and
(ii) if the authorised psychiatrist considers that an order is appropriate.
A chronology provided by Counsel shows that RW was admitted to hospital and detained as an involuntary patient on 30 May 1998, presumably because he satisfied the 5 criteria specified in S.8(I)of the Act.
On 25 June 1998 RW was placed on a CTO for 12 months, presumably as a person detained in an approved health service.
On 14 January 1999, 5 months before the CTO was to expire, the CTO was revoked pursuant to S.14(4) of the Act and RW was returned to an approved mental health service as an involuntary patient.
On 18 January 1999 the authorised psychiatrist examined RW and formed the opinion:
(i) that RW still satisfied the criteria in S.14(1A); and
(ii) that a CTO was still appropriate.
Consequently, RW was placed on a CTO to expire on 25 June 1999 and RW was deemed to be an involuntary patient under S.14.
The Board is required to review the continued detention of involuntary patients no later than 12 months after a previous review (S.30). On 11 May the Board fixed 11 June 1999 as the date for a review hearing. That date was altered to 9 July 1999 apparently on the assumption that it would continue to have jurisdiction to review the continued detention of RW on that date and notwithstanding that his CTO would expire on 25 June 1999.
On 16 June 1999 RW attended the service for treatment and advised Dr PP, the treating psychiatrist supervising the CTO and RW’s treatment, that he intended to appeal to the Board against his detention as an involuntary patient. An appeal is made pursuant to S.29 of the Act.
On 25 June 1999 RW again attended the service for treatment and again saw the supervising psychiatrist, Dr PP. On that day the CTO expired and was not extended.
On 29 June 1999, RW again attended the service for medication and on the next day he attended with a legal adviser to examine his file. He was then advised that as his CTO had expired he was a voluntary patient of the service, but should continue to attend for treatment otherwise he would likely be placed on another CTO.
On 7 July 1999, Dr J, an authorised psychiatrist appointed under S96 of the Act, completed and signed a document: Leave of Absence for an Involuntary Patient. The document purported to allow RW leave of absence from 25 June to 1 August 1999 for the purposes of Review by the Board. The document specified 7 categories of involuntary patent detained pursuant to 7 sections of the Act with boxes alongside. Dr J did not cross the box he considered appropriate for RW. This is not surprising for none of the 7 specified categories was appropriate. The leave of absence granted by Dr J was retrospective in operation and probably ineffective. Further, S.40 of the Act speaks of leave of absence being granted to allow an involuntary patient to be absent from the approved mental health service in which he or she is detained. RW was not being detained at the time he was at large in the community.
On 8 July Dr PP, the supervising psychiatrist, completed and signed a form: Progress Report on CTO/Restricted CTO. The doctor considered that RW should be reviewed with a view to having his current order extended. On 9 July, Dr J and Dr PP jointly prepared a Report on Continued Detention for the Board. The Board then adjourned the review hearing to 23 July.
On 13 July 1999 RW was due to attend the service for medication but neglected or omitted to do so.
On 23 July RW attended Dr J for review and Dr J being of the opinion a CTO was still appropriate and should be extended, completed a form: Extension of Community Treatment Order. The CTO specified its duration from 25 June 1999 to 24 June 2000. It is common ground that Dr J had no authority to extend a CTO by making it retrospective.
On 23 July 1999 the Board conducted a review of RW despite objection to its jurisdiction to do so, based upon a submission by Counsel on behalf of RW that since 25 June RW was no longer an involuntary patient.
The Board determined that RW met the criteria of S.14 of the Act and was an involuntary patient. The Board also found the continued detention of RW subject to a CTO was necessary. The Board also found that Dr J was empowered retrospectively to extend the CTO which expired on 25 June. This finding is not relevant.
The Tribunal heard the appeal from the Board on 13 and 22 December 1999 and published its decision on 24 March 2000. The Tribunal held that the Board had jurisdiction to review RW’s continued detention under S.20(1)(a) of the Act because RW was at all material times an involuntary patient. It is from the Tribunal’s determination that the Board had jurisdiction that this appeal was commenced.
This appeal was commenced pursuant to S.148 Victorian Civil and Administrative Tribunal Act 1998 after leave to appeal was granted. Five questions of law are raised by the appeal:
1. Whether S.14 of the Act on its proper construction operates so that:
(a)Upon the making of a CTO, the person subject to the same thereby becomes or continues to be an involuntary patient as defined by S.3 of the Act as a person admitted to an approved mental health service under paragraphs (a) to (d) of that definition as well as by force of S.14(3) of that Act?
(b)There are two classes of persons who can be made subject to a CTO, namely (i) those who had been detained under the Act in an approved mental health service and (ii) those who had not, such that on the expiration of a CTO in respect of a member of the class (i), that person continued by reason solely of those facts, to be an involuntary patient as defined by the Act, even if, on the expiration of a CTO in respect of a member of class (i), that person ceased to be an involuntary patient as defined by the Act?
2. Whether the Act on its proper construction operates so that upon the expiration of a CTO in respect of a person, and notwithstanding such expiry, that person becomes or continues to be, by reason solely of the previous existence of the CTO, detained as an involuntary patient and absent from an approved service without leave?
3. What are the powers of an unauthorised psychiatrist under the Act in respect of a person exercisable solely by reason of the previous existence of a CTO in respect of that person and notwithstanding its expiry?
4. What jurisdiction the Tribunal had to determine the question whether “the continued detention of (RW) as an involuntary patient is necessary”?
5. Whether Ss 30 and 36 of the Act on their proper construction operate so that the Mental Health Review Board must conduct a review under S.30(I) and may make orders under S.36 in respect of a person previously subject to a CTO:
(a)by reason solely of the previous existence of the CTO and notwithstanding the expiry of the same?; or
(b)by reason solely of the making, after the commencement of such review of a CTO which purported to take effect before the commencement of such review?
The critical issue raised by this appeal is the status of RW on 26 June 1999, the day following the expiration of the CTO. The parties agree that the expired CTO could not be extended retrospectively on 23 July. The Applicant contends that upon the expiration of his CTO he became a voluntary patient, at large in the community, and not subject to sanctions which can be imposed upon persons afflicted with a mental illness under the Act.
The Applicant was represented by Mr Bingham of Counsel. Mrs Tate represented one of the respondents, the Secretary of the Department of Human Services which is responsible for administering the Act. The Mental Health Review Board and the Victorian Civil and Administrative Tribunal were not represented, in accordance with practice, but will abide the decision of this court.
The respondent contends that upon the expiry of the CTO the Applicant retained or resumed the status of an involuntary patient absent with leave and, later, without leave. Mr Bingham contends that when RW was no longer subject to a CTO on 26 June, he became a voluntary patient and did not retain the status of an involuntary patient or a deemed involuntary patient.
I should indicate for the sake of clarity that the expression ‘voluntary patient’ is no longer used in the Act. In the original Act (No. 59 of 1986), Part 3 Division 1 provided for voluntary admissions to a psychiatric in-patient service (S.7). ‘Voluntary patient’ was defined to mean a person admitted to a psychiatric in-patient service under S.7. S.14 was similar to the present S.14 in that a person subject to a CTO was deemed to be an involuntary patient detained under S.12 and on leave from the appropriate psychiatric in-patient service. The expression was removed in 1995 by Act No. 98. Mr Bingham used the expression ‘voluntary patient’ in contradistinction to the statutory expression ‘involuntary patient’.
S.7 was removed from the 1986 Act to remove the stigma surrounding mental illness. With the removal of S.7 voluntary admission would have the same informal status within hospitals as other admissions. (Second Reading speech, 5/10/95 for Mental Health (Amendment) Bill).
It is important in interpreting the Act to note the objects of the Act specified in S.4(2): “It is the intention of Parliament that the provisions of this Act are to be interpreted and that every function, power, authority, authority, discretion, jurisdiction and duty conferred or imposed by this Act is to be exercised or performed so that –
(a) people with a mental disorder are given the best possible care and treatment appropriate to their needs in the lest possible restrictive environment and least possible intrusive manner consistent with the effective giving of that care and treatment; and
(b) in providing for the care and treatment of people with a mental disorder and the protection of members of the public any restriction upon the liberty of patients and other people with a mental disorder and any interference with their rights, privacy, dignity and self-respect are kept to the minimum necessary in the circumstances”.
Because the Act regulates the apprehension, admission and detention of persons in an approved mental health service against their wishes, or understanding, and restricts their freedom in the community, the Act must be interpreted in favour of a person affected by the provisions of the Act. The Court should be constrained to interpret the Act in a way that least infringes upon the civil rights of a person because of the stigma surrounding mental illness.
The Act is complex legislation; it has undergone considerable amendment since it was enacted in 1986.
The Act is silent as to the status of a person upon the expiration of a CTO. I would have expected that, upon the expiry of an order which required a person to receive treatment for a mental illness whilst at large in the community, and becoming free of the restrictions of the order and able to remain at large in the community, that person would not be subject to the disadvantages of being an involuntary patient, unless, or until, the provisions of Part 3 of the Act were invoked again to apprehend, admit and detain the person in an approved mental health service. The status of an involuntary patient with, or without leave, is a restriction upon the liberty of a person and an interference with their rights, privacy, dignity and self-respect.
Not only is it curious that the Act does not expressly say what is the consequence for a person upon the expiration of a CTO, it is inexcusable that the applicant was not examined by an authorised psychiatrist before his CTO expired, in accordance with S.14(6), to ascertain whether he still satisfied the criteria in sub-section (1A). If he did, and the psychiatrist considered that a CTO was appropriate, he could have extended it for a further period. The omission to act before the CTO expired has had costly and protracted consequences for the parties.
I turn now to consider the submissions of Counsel for the two parties. Their submissions were made in writing and elaborated by oral argument and references to the Act and authorities.
When RW was admitted to an approved mental health service as an inpatient on 14 January 1999 and detained until 18 January 1999 he became an involuntary patient by virtue of paragraph (a) of the definition of ‘involuntary patient’. The procedure for admission and involuntary detention is set out in Ss 9 and 12 and need not be referred to.
On 18 January, when the authorised psychiatrist considered that RW satisfied the criteria specified in S14(1A) and that a CTO was appropriate, he made the order instead of confirming the admission of RW to an approved mental health service as an involuntary patient or continuing to detain him in an approved mental health service. By ss(3) RW was ‘deemed’ to be an involuntary patient detained under S12 and the provisions of the Act, other than Sections 37, 40, 41, 42 and 43 applied accordingly.
The word ‘deemed’ is used in legislation in two alternative ways. The first use has been described as the ‘factitious’ sense, meaning ‘to judge’, ‘to decree’ or ‘to consider’. The second use has been described as the ‘fictitious’ sense, to create a statutory fiction for the purposes of the Act or some part of the Act. The word ‘deemed’ is used in the Act to attribute to a person a character which he does not in fact possess namely, that of an involuntary patient. The Parliament saw the need to judge a person subject to a CTO to have the character of an involuntary patient while subject to the order. This fictitious character applied to him only while he was subject to a CTO. Should an order be revoked before it expires, as happened on 14 January 1999 in the case of RW, and the person subject to the order be re-admitted to an approved mental health service, the status of involuntary patient is resumed or revived under S.9. But the person may still be deemed to be an involuntary patient who is absent from an approved mental health service without leave if the authorised psychiatrist revokes a CTO to which a person is subject pursuant to S.14(4A) pending the return of the person to an approved mental health service. That did not happen in July 1999.
See Hunter Douglas Aust Pty Ltd v Perma Blinds (1970) 122 CLR 49 @ 65-67; Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203 @ 208-209; City of Keilor v O’Donohue 1972 VR 238 @ 245; Rowe v Hughes (1973) VR 60 @ 68.
In the context in which ‘deemed’ is used in S.14 , I consider that the word is used in its ‘fictitious’ sense. This interpretation was proposed by Mr Bingham who argued that the essence of a CTO is being at large in the community and not detained.
S14 of the Act is the operative section for making a CTO. It prescribes the criteria which must be satisfied (SS(1A)) and specifies matters in SS’s (2) and (2A) that must be disclosed to the patient in an order. The authorised psychiatrist may revoke an order (SS(4)) whereupon the person subject to the order is “deemed to be an involuntary patient who is absent from an approved mental health service without leave” (SS(4A)(a). The authorised psychiatrist may extend a CTO for up to 12 months after examination (SS(6)). It is agreed by Counsel that a SS(6) examination and extension order must be conducted and made during the currency of a CTO.
S.14 speaks of revocation of a CTO by the authorised psychiatrist, it does not mention termination by the passage of time. Yet, time is an essential feature of a CTO. A CTO has a duration which must not exceed 12 months and, unless extended, has no force and effect after the expiry date. In these circumstances it is difficult for me to accept the respondent’s submission that, upon the expiration of a CTO, the person previously subject to the order automatically becomes an involuntary patient who is absent from an approved mental health service without leave. This status is said to result from the scheme of the Act. I have difficulty accepting that the status of a person whose order is revoked pursuant to S14(4A) is the same as the status of a person whose order has simply expired.
Mr Bingham drew attention to the document signed by the psychiatrist on 7 July 1999 purporting to grant RW “leave of absence” for the period 25 June to 1 August 1999. As it was beyond the authority of the psychiatrist retrospectively to extend a CTO, it was also beyond his authority to grant RW leave of absence between 25 June and 7 July. By S.40 an authorised psychiatrist may allow an involuntary patient to be absent from an approved health service in which the involuntary patient is detained for such period and subject to any conditions as the psychiatrist considers appropriate and the period of absence may be extended or revoked. In my opinion the document signed on 7 July was a nullity.
Curiously, by S.42(1) an involuntary patient who remains absent from an approved mental health service for a continuous period of 12 months without leave of absence is automatically discharged as an involuntary patient. Subject to SS(3) an involuntary patient who has been on leave of absence for a continuous period of 12 months is automatically discharged as an involuntary patient. S.S(3) allows the chief psychiatrist or the authorised psychiatrist to apply to the Board for an order that the involuntary patient is not to be discharged.
The crux of the argument for RW is that from 26 June 1999, when the CTO expired, he was not a person admitted or detained in an approved mental health service under Division 2 of Part3 and was not deemed to be an involuntary patient under S.13 or 14. For the purposes of S14 he could only be deemed to be an involuntary patient until 25 June. Therefore, he could not be granted leave of absence on 7 July and he was not absent without leave because he did not require leave of absence.
Mr Bingham submitted that the Board only has jurisdiction to review the continued detention of an involuntary patient still subject to a CTO and that when a CTO expires the person is not detained and is not an involuntary patient.
A CTO can expire at the end of the period specified, or it can be revoked, or it can be extended. Revocation and extension must occur before the order expires. If the order is revoked, the Act provides that the person subject to the order is deemed to be an involuntary patient who is absent from an approved mental health service without leave and may be apprehended and returned to an approved mental health service. If the order is extended the Act provides that the person subject to the order s deemed to be an involuntary patient detained under S.12. S.14(4) also provides for discharge of the person as an involuntary patient, if the authorised psychiatrist is satisfied that the person subject to the order does not satisfy the criteria specified in S.8(1) or in S.14(1A).
Is there room for the proposition of the Department that when an order expires without revocation, or extension first occurring, or without the person subject to the order being discharged, the person resumes involuntary patient status? Without doubt, it is more convenient to the Mental Health Service to have the person’s involuntary patient status continue when an order expires without revocation, extension, or discharge first occurring, but it is not convenient to the person who is at liberty in the community and is no longer bound by the terms of the order.
Mr Bingham submitted that previous admission to and detention in an approved mental health service should not dictate the status of a person when an order expires without revocation or extension first occurring. If a person resumes or acquires a status of involuntary patient on the day after the order expired, such a person is liable to apprehension at any time for the purpose of being returned to the approved mental health service (S.43). Does this achieve the objects of the Act specified in S4(2)(a) and (b)? The interpretation of the Act should avoid an invasion of the right to personal liberty. Harry v Mental Health Review Board (1994) 33 NSW LR 315.
Mrs Tate drew the court’s attention to well known principles of statutory interpretation to ascertain and give effect to the intention of the Parliament. Mrs Tate contended that the court should not read words into a statute unless satisfied that:
(a) by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved, and
(b) it can ascertain with certainty how Parliament would have overcome the omission if its attention had been drawn to the defect.
Be that as it may, it cannot be gainsaid that Parliament did omit to deal expressly with the circumstance that arose in this case. There is a gap in the Act because Parliament did not enact what is to be the status of a person subject to a CTO upon its expiration. Did Parliament intend that the person should be subject to automatic detention or restriction of liberty or did it intend that any further restriction upon the liberty of the person or detention should be subject to new action initiated under Part 3 of the Act.
Mrs Tate submitted that the construction of the Act proffered by Mr Bingham has the consequence that the expiry of a CTO is a form of automatic discharge, something not provided by the act and requiring words to be read into the Act. However, Mrs Tate’s argument would require words to be read into the Act to the effect that upon the expiry of a CTO the person acquires a status not expressly provided by the act.
The Act expressly provides for involuntary patient status in 7 statutory categories:
(i) a person detained pursuant to S.12.
(ii) a person detained pursuant to S.12A.
(iii) a person detained pursuant to S.12C.
(iv) a person detained pursuant to S.91 of the Sentencing Act 1991.
(v) A person detained pursuant to S.93(1)(d) of the Sentencing Act.
(vi) A person detained pursuant to S.90of the Sentencing Act.
(vii) A person detained pursuant to S.16(3)(a).
The Act expressly provides for ‘deemed’ involuntary patient status in 3 statutory categories: S.13(2) and S.14(3) and (4A).
RW does not fit comfortably, or at all, into any of the statutory categories upon the expiry of his CTO on 25 June 1999 because he was not detained in the sense in which detained is used in the Act and he had ceased to be a deemed involuntary patient.
Consequently, to uphold Mrs Tate’s proposition words would have to be read into the Act to create a further statutory category: “A person subject to a CTO upon expiry before revocation or extension of the Order is deemed to be detained as a involuntary patient until discharged by the authorised psychiatrist or the Board”.
Words should not be read into the Act which interfere with the rights, dignity and self-respect of a person, unnecessarily. If RW was a person who satisfied the criteria specified in S.14(1A) on 25 June 1999, more diligence by the authorised psychiatrist or the Mental Health Service could have avoided the problem evident in the case before the court today.
It is not correct to say that if the interpretation of theAct proffered by Mr Bingham is accepted, it will mean that some mentally ill persons will fall by the wayside or slip through the safety net provided by the Act. Upon the expiration of a CTO some persons will cooperate and be treated voluntarily. Others may need to again be made involuntary patients. If care is taken, persons in need of further involuntary patient status will be identified before their CTO expires and appropriate steps taken to extend the CTO.
Mrs Tate submitted that although Parliament has not expressly provided for the consequences which flow from the expiry of a CTO it has dealt with the expiry of a CTO by implication. Broadly, Mrs Tate contended that a person admitted to an approved mental health service becomes an involuntary patient and retains that status until formally discharged by meeting the statutory requirements for automatic discharge. Expiry of a person’s CTO has no effect upon the person’s continuing status as an involuntary patient, Mrs Tate contended.
It is admission to an approved mental health service that makes a person an involuntary patient. See: In the Matter of XY. Full Court, 6/3/92 (unreported) Brooking, J. at page 1. But, if the authorised psychiatrist considers that a CTO is appropriate, the person is released subject to the order and becomes at large in the community. If Mrs Tate’s proposition is correct, and the person retains the status of involuntary patient until discharged, why did the legislature need to enact S.14(3)(a)? A CTO does not confer involuntary patient status upon a person without S.14(3)(a). A person who is not subject to a CTO is not deemed to be an involuntary patient detained under S.12. When a CTO expires at the end of its specified duration and is not renewed before expiry, a person subject to the CTO can no longer be deemed to be an involuntary patient. Why should the Act be construed to re-impose the status of involuntary patient upon a person who is not in fact admitted to and detained in an approved mental health service? The person may, or may not, satisfy the criteria specified in S.14(1A) at the expiration of a CTO.
The construction of the Act sought by Mrs Tate on behalf of the Department of Human Services imposes a restriction upon the liberty of people with a mental disorder which will be unnecessary if, before the expiration of a CTO, the authorised psychiatrist examines the person to ascertain whether the person still satisfies the criteria specified in S.14(1A).
Mrs Tate submitted that the argument urged by Mr Bingham produces an anomolous consequence in conflict with the purposes of the Act. I do not accept this is so. An admitted person becomes an involuntary patient and retains that status until discharged from being an involuntary patient pursuant to S.12(2)(a), or S.12C(2), or until made subject to a CTO and is ‘deemed’ to be an involuntary patient detained under S12. When the person is no longer a ‘deemed’ involuntary patient and is at large in the community, I do not regard it as anomolous that such a person does not ipso facto become an involuntary patient again. If it is anomolous Parliament can remedy the position by amendment of the Act.
On the date when the authorised psychiatrist initially made a CTO he did so instead of confirming the admission of RW to an approved mental health service as an involuntary patient or continuing to detain the person in an approved mental health service.
The involuntary patient status of RW ended on 18 January 1999 with the making of the order and was replaced by a ‘deemed’ involuntary patient status which ended when RW was no longer subject to the order, in my opinion. When the ‘deemed’ involuntary patient ended, an involuntary patient status by admission to an approved mental health service under Division 2 of Part 3 was not automatically revived. Further admission to an approved mental health service was required to bring RW within one of the 7 statutory categories.
Mrs Tate comprehensively examined the scheme of the Act and submitted an interpretation of the Act which would avoid the consequence of a person such as RW falling outside the umbrella of care and treatment and Board review without formal discharge. I found her analysis of the Act most helpful to my understanding of the act.
I want to make it quite clear that I make no findings whether RW satisfied the criteria in S.8(I) or S.14(1A) on 25 June 1999. He was seen by the supervising psychiatrist, not the authorised psychiatrist, on that date and no opinion was formed whether RW still satisfied the relevant criteria.
As I have formed a clear view as to the status of RW on 26 June 1999 which is consistent with the advice he was given on 29 June: that as his CTO had expired he was a voluntary patient of the service and should continue to attend for service, I do not propose to detail all of the submissions made by Mr Bingham for RW and Mrs Tate on behalf of the Secretary to the Department. They are documented and available, if required to an appellate court.
I find that the Tribunal erred in law in its determination that the Board had jurisdiction on 23 July 1999.
In answer to the questions of law raised on the appeal I say:
Question 1.
(a) Upon the making of a Community Treatment Order the person subject to the order is deemed to be an involuntary patient detained under Section 12 while subject to the order.
(b) It is inappropriate to answer this part of the distinction between two classes of persons was incorrect.
Question 2. No
Question 3. It is unnecessary to answer question 3 in the form in which it is drafted.
Question 4. The Tribunal had no jurisdiction to determine the question whether “the continued detention of RW as an involuntary patient is necessary” because at the relevant time RW was no longer an involuntary patient as defined in S.3 of the Act.
Question 5. In the circumstances it is unnecessary to answer this question.
Pursuant to S.148(7) of the Victorian Civil and Administrative Tribunal Act the court orders that the order of the Tribunal: “The decision of the Mental Health Review Board that it had jurisdiction (under S30(I)(a) of the Act to review the continued detention of RW is affirmed,” be set aside and in lieu an order is made that the Board did not have jurisdiction to conduct a review of RW on 23 July 1999.
I shall reserve the question as to whether further orders are required and the question of costs.
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