Simon J Overland v S [1993] ACTSC 47; (1993) 114 ACTR 35; (1993) 65 A Crim R 574; (1993) 113 FLR 69 (29 April 1993)

SUPREME COURT OF THE ACT

SIMON J OVERLAND v. S
No. SCA23 of 1993
Number of pages - 12
Criminal Law - Criminal Law Prosecution
[1993] ACTSC 47; (1993) 114 ACTR 35
(1993) 65 A Crim R 574
(1993) 113 FLR 69

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Higgins J(1)

CATCHWORDS

Criminal Law - Offence under s.45(3) Mental Health Act 1983 (ACT) - Authorization of administration of convulsive therapy - A patient was subject to a treatment order - Meaning of "authorize".

Criminal Law Prosecution - Discretion of Supreme Court to dismiss on information after finding prima facie case.

Words and Phrases - "Authorize"

Mental Health Act 1983 (ACT), ss.4, 45, 46

Magistrates Court Act 1930 (ACT), s.219F(5)

University of New South Wales v Moorhouse and Angus and Robertson (Publishers) Pty Ltd [1975] HCA 26; (1975) 133 CLR 1

RCA Corporation v John Fairfax and Sons Ltd (1981) 1 NSWLR 251

Copyright Agency Ltd v Haines (1982) 40 ALR 264

Blacksell v Commissioner of Stamp Duties (Qld) (1984) 15 ATR 621

WEA International Inc v Hanimex Corp Ltd (1987) ATPR para.40-827

Australasian Performing Right Association Ltd v Jain (1990) 26 FCR 53

Myers v Claudianos (1990) 95 ACTR 1

R v Prasad (1979) 233 SASR 161

HEARING

CANBERRA, 30 March 1993
29:4:1993

Counsel for the Appellant: Mr S Loomes

Instructing solicitors: Director of Public Prosecutions

Counsel for the Respondent: Mr B Maguire QC

Instructing solicitors: Messrs Minter Ellison Morris

Fletcher

ORDER

The Court orders that:

1. The appeal be upheld.
2. The order of the learned Magistrate of 19 January 1993, that
the information herein be dismissed, be set aside.
3. The matter be remitted back to the learned Magistrate,
substituting a finding that the informant has made out a
prima facie case against the respondent, to be further
dealt with according to law.
4. The appellant pay the costs of the respondent of and incidental
to this appeal.

DECISION

HIGGINS J This is an appeal by way of order to review. An order nisi to review was granted by me on 11 February 1993.

2. The decision of the Magistrates Court called into question was the finding of Magistrate Nicholl on 19 January 1993 to dismiss an information against the respondent. His Worship found, as a matter of law, that no prima facie case had been established in the matter.

Background
3. On 11 September 1992 an information was laid in the following terms, charging the respondent,

"That he, in the Australian Capital Territory, on the 15th June
1992, then being a registered medical practitioner, did authorize
the administration of convulsive therapy to (the patient) who was
then a person in respect of whom a treatment order was in force,
when the Magistrates Court, on application by the Director of
Mental Health Services or the said (respondent) had not approved
the administration of convulsive therapy to the said (patient)."

4. The name of the patient has been suppressed to protect her privacy. The names of the doctors concerned have also been suppressed, partly for that reason and partly to protect their professional reputations. Neither has, so far, been found guilty of any offence. It would be unfair to identify them at this stage.

5. It was common ground that the evidence before the learned Magistrate was capable of establishing that, on 15 June 1992, the respondent was a registered medical practitioner. It was also capable of establishing that the patient on that day had convulsive therapy within the meaning of s.4(1) of the Mental Health Act 1983 (ACT) ("MHA") administered to her by another registered medical practitioner (he is referred to as "Dr (B)"). She was then a person in respect of whom a treatment order under the MHA was in force. There was no order of the Magistrates Court then in force approving the administration of convulsive therapy to the patient. Indeed, an application for such an order had been expressly refused.

6. The issue before the learned Magistrate was whether the evidence could establish that the respondent had "authorized" the administration of that treatment to the patient.

7. The evidence disclosed that the respondent had, prior to 15 June 1992, applied for treatment orders in respect of the patient. He had also sought approval for the use of convulsive therapy. A treatment order was made on 2 June 1992 but approval was not given by the learned Magistrate granting the treatment order for the use of convulsive therapy. That order was still in force as at 15 June 1992.

8. The respondent had given affidavit evidence in support of previous applications for treatment orders and use of convulsive therapy. Those affidavits were in evidence before his Worship. It was open to his Worship to conclude from that material that the respondent had treated the patient since December 1990 both as an in-patient and an out-patient. It could be concluded that he was aware of the terms of the orders made and the nature and extent of the patient's mental illness.

9. There were, also, notes made by the respondent on the patient's medical file. A note on 12 June 1992 read as follows,

"Has consented to E.C.T. Please consult Dr ... (a neurologist)
re ensuring against complications (a) status (b) spontaneous
fitting between treatments on up to about 1/12 after end of course."

10. It should be noted that it was no part of the prosecution case that the treatment administered to the patient was inappropriate or improperly executed from a medical viewpoint. It was open to conclude, however, that the respondent had given instructions concerning the convulsive therapy treatment ultimately administered on 15 June 1992.

11. The patient gave evidence. She said that she had commenced treatment with the appellant in 1990. She had frequent consultations with him. He prescribed certain drugs for her. In 1992, she agreed, she went to Woden Valley Hospital for treatment "under the care of" the respondent. The respondent discussed with her the desirability of convulsive therapy and the nature and effect of that therapy.

12. On 12 June 1992, the patient had signed a document consenting to the administration of convulsive therapy. The document asserted that the nature and purpose of the treatment proposed had been explained to her by the respondent. The respondent signed the document also, certifying that he had explained the nature and purpose of the proposed treatment to the patient. Indeed, the patient confirmed that the respondent had very carefully and painstakingly done so before she signed the consent form. Although the respondent, to the patient's knowledge, favoured the use of convulsive therapy in her case, it was at the patient's request that the respondent obtained the consent form. Indeed she said that, after the form was signed, the respondent said to her,

"You know I won't hold you to this if you change your mind."

13. On the day when the treatment was applied, the patient was taken on a trolley to the operating theatre. She was asked if she recognised anyone in "that room".

14. She said that she recognised the respondent and the doctor (Dr (B)) who, it appears, actually carried out the treatment. The respondent spoke to her. He reminded her, she said, that she did not have to go ahead with the treatment and if she decided not to, "that was okay with him."

15. Despite some subjective misgivings and some prior expressions of reluctance, the patient says she did not withdraw her consent or express any further hesitation about proceeding with the treatment.

16. She next remembered waking up in another room.

17. Dr Gilmore, an anaesthetist, identified the consent form as something "which is obtained by the treating physician or surgeon". He agreed that he had administered anaesthetic to the patient for the purpose of convulsive therapy. He did not, however, know the respondent. Nor could he say if the respondent had been in the treatment room when the procedure was performed.

18. Nurse Willoughby had been given the duty of preparing the patient for the convulsive therapy. She was aware that there was a treatment order in force in relation to her. She was asked whether she was aware who the patient's "treating doctor" was. She said it was the respondent. She had a conversation with the respondent. She saw him reading the clinical notes, he asked her who was preparing the patient. She said she was "... and he said - and he was concerned that she be there up in the theatres by about 9 o'clock ...". She continued with the preparation of the patient accordingly.

19. When, later, the patient expressed reluctance to proceed with the treatment, it was the respondent, she said, who came and spoke to the patient. They then waited together until the treatment was ready to commence, when she and the patient left the respondent's company.

20. Whilst the treatment was being undertaken, she said, the respondent "came in some way through the procedure ... I ... can't remember exactly the specific moment he walked in." However, she was able to recall that the respondent was present "while the ECT was being administered ... I had him check the ampoules with me."

21. The nurse supervising the patient's care, Mr Peter Merlino, also gave evidence. He said that the doctor supervising him in relation to the patient was the respondent, although he did not see him on the morning of 15 June 1992.

22. That was the case for the prosecution. Clearly enough, the evidence would support a conclusion that, as at 15 June 1992, the respondent was the patient's treating doctor. Further, that the respondent was of the opinion that convulsive therapy would be of benefit to the patient. He was aware that she was the subject of a treatment order and that there was no order of a court permitting the administration of that therapy. He obtained a consent form which would be taken by the person or persons administering the therapy as a necessary pre-condition for the treatment to proceed. He explained the proposed treatment to the patient. He reassured the patient before the administration of the treatment. He was physically present for at least some of the time when the treatment was being administered. It could be concluded that the respondent was knowingly concerned in the administration of convulsive therapy to the patient on 15 June 1992 by another medical practitioner.

23. At the conclusion of the prosecution case, Mr Maguire QC for the respondent, submitted that the evidence was insufficient to enable it to be concluded that the respondent had authorized the convulsive therapy administered. Certainly, the evidence supported a conclusion that, as the treating doctor, the respondent had "prescribed" convulsive therapy. It could also be inferred that he had caused the treatment team to assemble and to carry out that treatment.

24. However, the respondent was not before the court to answer a charge of being knowingly concerned in the commission of an offence by the person or persons who administered the proscribed treatment. He was charged with "authorizing" the administration of that treatment contrary to s.45(3) MHA. Section 45 reads as follows,

"45. (1) A person, other than a medical practitioner, shall
not administer convulsive therapy to another person unless he is
authorized to do so by a medical practitioner.
Penalty: $1,000.
(2) A medical practitioner shall not administer, or authorize the
administration of, convulsive therapy to a person, other than a
person in respect of whom a treatment order is in force, unless -
(a) the person has, by instrument in writing signed by him, and
witnessed by a person other than the medical practitioner, consented
to the administration of the therapy; and
(b) convulsive therapy has not been administered to the person on
10 or more occasions since that consent was given.
Penalty: $1,000.
(3) A medial practitioner shall not administer, or authorize the
administration of, convulsive therapy to a person in respect of
whom a treatment order is in force unless -
(a) the Magistrates Court, on application by the Director or medical
practitioner, has approved the administration of convulsive therapy
to the person; and
(b) convulsive therapy has not been administered to the person on
10 or more occasions since the Court so approved the administration
of convulsive therapy to the person.
Penalty: $1,000.
(4) The Magistrates Court shall not give its approval under
subsection (3) for the administration of convulsive therapy to a
person unless the application is supported by the evidence of a
psychiatrist who is not an applicant and the Court is satisfied
that -
(a) the administration of the therapy will result in a substantial
benefit to the person;
(b) there is no other form of treatment reasonably available that is
likely to result in the same degree of benefit to the person; and
(c) the person -
(i) is capable of weighing for himself the considerations involved
in making a decision whether to consent to the administration of the
therapy and has, by writing signed by him and witnessed by a person
other than the applicant, consented to the administration of the
therapy and has not, whether orally or in writing, withdrawn his
consent; or
(ii) is, by reason of mental dysfunction, incapable of weighing for
himself the considerations involved in making a decision whether to
consent to the administration of the therapy."

25. Mr Maguire QC submitted, in essence, that s.45 of the MHA directly forbids only the administration of convulsive therapy by a medical practitioner. Authorization is relevantly confined to a case where a medical practitioner instructs the administration of convulsive therapy by a non-medical practitioner. No medical practitioner requires authorization from another medical practitioner to administer convulsive therapy but a non-medical practitioner does.

26. Of course, a medical practitioner may not lawfully administer or instruct a non-medical practitioner to administer such treatment in respect of a patient the subject of a treatment order, unless a court has approved such treatment.

27. In any event, it was submitted the only "authorization" which the administering doctor had or needed was the patient's consent. The evidence did not enable it to be concluded that the respondent's authority to proceed was sought or given by the administering doctor.

28. The prosecutor, Mr Loomes, in reply to this, contended that, if what the respondent did was to authorize another person to administer convulsive therapy then it did not matter for the purposes of s.45(3) that the person who carried out the treatment was, in fact, also a medical practitioner. He contended that a prima facie case was made out that the respondent had "authorized" the convulsive therapy in question.

29. On 19 January 1993 his Worship decided that there was no evidence that the respondent had "authorized" the doctor administering the convulsive therapy to do so.

30. His Worship concluded that there was evidence that the respondent had arranged for the patient to have the treatment. However, his Worship regarded the patient's consent as the relevant authority for the administration of the treatment. He said,

"In my opinion the evidence does not support a finding that (the
respondent) authorized Dr (B) to administer the convulsive therapy
because in my view, although he was the treating doctor and regarded
that treatment as the appropriate treatment for her, it is her
consent which was - or authorization which was acted upon and
although the treatment order was in force, it cannot be said in my
opinion, that what happened here constitutes an authorization within
the meaning of subsection 3 by (the respondent ) to Dr (B) to
administer the convulsive therapy ..."

What does "authorize" mean?
31. That is the critical question. The respondent could be found, on the evidence, to have "prescribed" convulsive therapy. He advised the patient as her treating doctor. He arranged for Dr (B) to administer it. He supervised its administration. He took responsibility for ensuring that, if the patient withdrew consent, the treatment would not proceed.

32. But for the existence of the treatment order and the lack of court permission, the respondent's conduct does not appear to have lacked any clinical or ethical orthodoxy. That is not, however, a relevant issue for present purposes.

33. It is the case, as Mr Maguire QC submitted, that Dr (B) did not need, under the MHA, authority from the respondent lawfully to administer convulsive therapy. The only authority required by Part VI is that of a Magistrate approving the administration of treatment, where a treatment order is in force (s.45(3)), or, if there is no such order in force, the written consent of the patient (s.45(2)) which consent has not been withdrawn (see s.46). If the person administering the treatment is not a medical practitioner, then that person also requires the authorization of a medical practitioner to administer it. A medical practitioner is unable lawfully to give that authority unless he or she has the consent of the patient or the court approval to the administration of that treatment to which I have referred.

34. "Authorize" is a word of wide or narrow import, according to its context.

35. In University of New South Wales v Moorhouse and Angus and Robertson (Publishers) Pty Ltd [1975] HCA 26; (1975) 133 CLR 1, Gibbs J gave to the term "authorize", in copyright legislation the meaning of "sanction, approve, countenance". It may include "permit". That word may, also, be used in the sense of having, but declining to exercise, a power to prevent a breach of copyright.

36. His Honour said,

(12-13) "Express or formal permission or sanction, or active
conduct indicating approval, is not essential to constitute an
authorization ... the word "authorize" connotes a mental element
and it could not be inferred that a person had, by mere inactivity,
authorized something to be done if he neither knew nor had reason to
suspect that the act might be done ... indifference or omission is
"permission" where the party charged (amongst other things) "knows
or has reason to anticipate or suspect that the particular act is
to be or is likely to be done"."

37. Jacobs J (McTiernan ACJ concurring) gave to "authorization" a similar meaning.

38. In RCA Corporation v John Fairfax and Sons Ltd (1981) 1 NSWLR 251, Kearney J, again in a breach of copyright case, accepted that "authorize" meant "sanction, approve or countenance". His Honour pointed out, however, that the acts or omissions relied on as evidencing authorization must be causative of the proscribed act or acts of infringement of copyright.

39. As his Honour noted,

(259) "One would think that as a matter of common dealing that
authorization would not be expected to occur on the part of a person
who does not purport to have any authority which he (or she) can
grant to justify the doing of the infringing act."

40. Accordingly, Dr (B) could not, one would think, be said to be "authorized" to administer the treatment in question by some medical practitioner unconnected with and having no control over the patient's care.

41. Another example is Copyright Agency Ltd v Haines (1982) 40 ALR 264. Effectively, the control by the Director-General of Education over copying in schools was found to be capable of being "authorization" of a breach of copyright by the copying of proscribed material.

42. In a different context, a similar approach was adopted. In Blacksell v Commissioner of Stamp Duties (Qld) (1984) 15 ATR 621 a document requesting "debiting amounts to accounts by the direct debit system" was regarded as a "letter of authority" for duty purposes even though the relevant Bank was entitled to accept or reject the "request" so made. The Bank could not act without the "request". The taxpayer could therefore prevent the debit by not making the "request". Connolly J (at 622) expressly relied on the statement of Gibbs J in University of New South Wales v Moorhouse and Angus and Robertson (Publishers) Pty Ltd (supra) at 12.

43. In WEA International Inc v Hanimex Corp Ltd (1987) ATPR para.40-827, 48,929 an advertisement for blank audio tapes referred to various recording artists in terms which indicated that their works had been re-recorded from (apparently) copyright material. Gummow J extensively reviewed the concept of "authorization" in the United States, England and Australia as revealed by decided cases. His Honour found that the conduct in question could not, reasonably, be construed as "an invitation or incitement to or approval of the reproduction of (the copyright material)" (48,940). There needs, in fact, his Honour concluded, to be a sufficient degree of connection or control between the alleged authorizer and the person carrying out the act of infringement for a breach to be found.

44. A hotel licensee, by contrast, was held to "authorize" breach of copyright by bands performing copyright works on his premises in Australasian Performing Right Association Ltd v Jain (1990) 26 FCR 53. The licensee had the power to control what music was played to patrons on his premises.

45. Sheppard, Foster and Hill JJ applied Moorhouse,

(61) "The judgment of the members of the High Court in the
Moorhouse case establishes that one of the meanings of the word
"authorize" in the context in which it is here used is
"countenance". It may be that not every act which amounts to
the countenancing of something is an authorization."

46. Given the status the respondent enjoyed and his proximity to and organisation of the convulsive therapy carried out, it could be concluded that Dr (B) would not have carried out the treatment, irrespective of the patient's continuance of consent, if the respondent had forbidden it. In any event, in initiating the arrangements for and aiding and abetting the administration of the treatment in question, the respondent could be viewed as "countenancing" its administration.

47. To my mind, the evidence clearly supports a conclusion that the respondent "authorized" Dr (B) to administer convulsive therapy in the sense in which that word is ordinarily understood.

48. It follows that, unless the term "authority" is to be read down in the context of the MHA, a prima facie case was made out against the respondent.

49. The term can be read down if the proscribed act of authorization has as its object only the administration of convulsive therapy by a non-medical practitioner.

50. That does not seem a rational restriction on the meaning of "authorize". The learned Magistrate did not accept such a restricted construction and I think he was right to do so.

51. Part VI of the MHA is designed to prevent convulsive therapy being administered to patients under treatment orders unless court approval is given. It would not be reasonable if that protection could be abrogated by a treating doctor who, aware that no court approval existed, procured another medical practitioner to administer convulsive therapy by producing a consent form thereby inducing in that doctor the belief, that there was no existing treatment order. The absurd result could follow that the doctor so procured would not be guilty of an offence if he or she established an exculpatory belief. The treating doctor would not be guilty of an offence because he or she obtained the administration of the treatment by a person who did not require his or her authority under s.45.

52. It seems to me, therefore, that "authorize" in s.45(3) must include those acts or omissions which, whether required by the legislation or not, enabled Dr (B) both clinically and ethically to proceed with the treatment.

53. Certainly, one such act of "authorization" emanated from the patient. However, the fact that one act, that of signing (and not revoking) a consent form, is a necessary pre-condition, does not mean that the consent form is or was, a sufficient condition for the administration of the treatment by Dr (B). Even if it was, the respondent clearly added the weight of his approval of the proposed treatment to the process by reason of which Dr (B) decided to administer it.

54. It would seem unlikely, as a matter of common sense, that one doctor would administer treatment to a patient known to be under another doctor's care, even if consented to by that patient, without the approval of that treating doctor.

55. In this case, it is, at least, possible to infer that Dr (B) would not have administered the treatment in question without knowing that the respondent approved of him doing so. Indeed, his Worship was satisfied that such an inference could be drawn. Again, I agree, respectfully, with his Worship's opinion.

56. However, where his Worship differs from the conclusion I have reached is in the assumption that, given that the patient had "authorized" her treatment by consenting to it, the respondent's prior "approval" of it was or became irrelevant.

57. That conclusion, in my opinion, fails to recognise that there may be a number of authorizations operating concurrently. In any particular case, the number of medical practitioners who have authorized the administration of convulsive therapy will be a question of fact for the relevant court to decide.

58. I have no doubt that a treating doctor arranging for another medical practitioner to carry out treatment, whether as a matter of convenience or because the latter has more specialised skill or knowledge, does authorize that latter practitioner to carry out such treatment.

59. The concept of agency is not excluded by the terms of s.45.

60. It follows that his Worship's conclusion cannot be supported. There was a prima facie case against the respondent.

Discretion
61. It was also submitted that, even if there was a prima facie case, it was clearly established that the respondent had acted, medically, in the best interests of the patient. It was submitted that, as a matter of discretion, the relief sought by the appellant should be refused.

62. Reference was made to Myers v Claudianos (1990) 95 ACTR 1.

63. In that case, Miles CJ found that the learned Magistrate had been incorrect in finding that there was no prima facie case. Nevertheless, his Honour dismissed the informant's appeal.

64. However, Claudianos was a case where the inferences to be drawn were the subject of doubt. The learned Magistrate was held to have been wrong in deciding they could not be drawn. However, there was little doubt that, had the matter been returned to the learned Magistrate, it was highly unlikely that he would have drawn the inferences of fact necessary to find guilt. In that case, the factor which seemed to his Honour to be decisive was that the prosecution had, albeit led to do so by attacks on the credit of prosecution witnesses, failed to argue that such attacks were irrelevant to the issue whether there was a prima facie case. Instead, the matter had been argued as if it was an "unsafe and unsatisfactory" case, that could have led to the learned Magistrate deciding to acquit without calling upon the defence to present evidence (see R v Prasad (1979) 233 SASR 161).

65. In this case, the inferences of fact which may be drawn are not subject to any similar criticism. The question at issue on this appeal is the correct legal characterisation of the conclusion to be drawn from those facts and inferences.

66. I do not consider that the prosecution case is so factually weak or so trivial that it should be dismissed and the learned Magistrate's decision allowed to stand notwithstanding that there is a prima facie case. The issue as to the observance of the law relating to the administration of convulsive therapy, in my opinion, outweighs the interest of the respondent in retaining an acquittal erroneously recorded.

67. On the evidence so far presented, it might well be concluded that the respondent acted in what was, in his view, the best medical interests of his patient. It could, however, be inferred that the respondent also acted in blatant defiance of a court decision refusing approval for the treatment administered. It could be inferred that he was well aware that the patient's consent was ineffective without that approval.

68. It is inappropriate to comment further on the prosecution case save to say that it does not appear to me that there is any discretionary ground for refusing to uphold the appeal.

Orders
69. The costs of this appeal are required by s.219F(5) of the Magistrates Court Act to be awarded in favour of the respondent. I so order.

70. Otherwise I set aside the orders of the learned Magistrate dismissing the information and awarding costs to the respondent.

71. I remit the matter back to the learned Magistrate, substituting a finding that the informant has made out a prima facie case against the respondent, to be further dealt with according to law.