Stephen Joseph Rosenman v Fiona Averil Fraser and B [1987] ACTSC 79 (8 December 1987)

SUPREME COURT OF THE ACT

STEPHEN JOSEPH ROSENMAN v. FIONA AVERIL FRASER and B
S.C. No. 1480 of 1987
Mental Health

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Mental Health - application for treatment order - meaning of "social breakdown" - whether evidence of mental dysfunction - application by respondent for adjournment to put on evidence - imminent expiry of existing treatment order - Mental Health Ordinance 1983 ss.4, 28, 34.

HEARING

CANBERRA
8:12:1987

ORDER

The respondent remain in the custody of the Director of Mental Health Services at such premises as are from time to time determined by the Director throughout the period for which the order has effect.

During the period for which the Order has effect, communication by the said person with other persons not be restricted.

The order have effect for a period of 3 months, such that the order expire on the 8th day of March 1988.

AND IT IS DIRECTED that the Director of Mental Health Services afford every opportunity to the respondent to be examined by a doctor of his choice.

DECISION

This is an application for a treatment order under s.28(2) of the Mental Health Ordinance 1983. I am satisfied as required by s.34(2)(a) and (b)(iii) that the respondent, Mr B, is suffering from mental dysfunction and, as a result thereof, is in a state of social breakdown. However, at this very moment and whilst he is subject to current treatment order which is due to expire tomorrow, and whilst the dysfunction is under control by reason of the treatment by way of medication which he is receiving, pursuant to the current treatment order, the condition is not, in my view, likely to cause lasting and serious harm to Mr B. In my view, the impairment of capacity, as envisaged by the definition of "social breakdown" in s.4(1) of the Mental Health Ordinance, extends beyond a temporary condition which may be brought about by medication and includes the overall capacity of the person concerned as it probably exists without medication. It is in that latter situation that I adjudge Mr B to suffer from mental dysfunction and consequent condition of social breakdown as defined. I am also satisfied under s.34(2)(c) that Mr B is incapable of weighing for himself the considerations involved in making a decision whether to accept adequate treatment for that mental dysfunction.

2. I have been asked by counsel appearing on Mr B's behalf to adjourn the present hearing so that the matter may be considered at greater length and so that opportunity may be given to Mr B to consult a psychiatrist of his own choice and for such a psychiatrist to give evidence. There is a question whether the court has jurisdiction to continue the hearing beyond the date upon which the treatment order in the Magistrates Court has expired or is expected to expire. However, I make no considered decision on that aspect because in any event I am satisfied of the matters required to be proved pursuant to s.34(2) for the making of a treatment order.

3. Prima facie, such a case has been made out and an order should be made. It will be made subject to a direction from the Court that the Director, who may or may not require treatment to be given in a custodial situation, afford every opportunity to Mr B to be examined by a psychiatrist of his own choice. My decision is made in acknowledging the right of Mr B to apply for an order discharging the treatment order if further evidence justifies such a course. I therefore make the order sought. The precise terms of the order are not for me to lay down. They are provided for in the Ordinance itself. It is a three month order. The notes that were handed up will not be marked as an exhibit. They have been superseded by the oral evidence and may be handed back.