Eg v Edgar [2002] ACTSC 112 (8 November 2002)

Last Updated: 8 November 2002

EG v JOHN EDGAR [2002] ACTSC 112 (8 November 2002)

CATCHWORDS

APPLICATION - stay of proceedings - Mental Health Tribunal (ACT) - involuntary psychiatric treatment order - grounds not made out - application refused.

APPEAL - appeal from Mental Health Tribunal (ACT) - involuntary psychiatric treatment order - order to submit to medication - Mental Health Tribunal (ACT) entitled to consider the likelihood and consequence of refusal to take medication - whether strictures imposed by s 9 Mental Health (Treatment and Care) Act 1994 were exceeded - they were not - appeal dismissed.

Mental Health (Treatment and Care) Act 1994 (ACT)

ON APPEAL FROM THE MENTAL HEALTH TRIBUNAL OF THE AUSTRALIAN CAPITAL TERRITORY

No SCA 34 and 45 of 2002

Judge: Higgins J

Supreme Court of the ACT

Date: 8 November 2002

IN THE SUPREME COURT OF THE )

) No SCA 34 and 45 of 2002

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MENTAL HEALTH TRIBUNAL OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: EG

Appellant

AND: JOHN EDGAR

Respondent

ORDER

Judge: Higgins J

Date: 8 November 2002

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

1. This is an appeal and motion for stay of proceedings in respect of a matter before the Australian Capital Territory Mental Health Tribunal (the Tribunal). As it happens grounds for a stay of proceedings were not made out and, in any event, on the balance of convenience, I decided to refuse that application but consider the appeal.

2. The decision in question was made by the Tribunal, comprising Acting President Doogan, Dr Walter Mickleburgh and Mr Ross Walker, on 1 August 2002. That decision was, itself, a review of a previous decision made on 3 June 2002, to impose on EG, the appellant, an Involuntary Psychiatric Treatment Order (the Order).

3. The Tribunal decided to make a further Order for a period not exceeding six months.

4. Its reasons for doing so, based on reports from various experts, were expressed as follows:

"3 Ms Martens told the Tribunal that [EG] had been attending the Tuggeranong Mental Health facility every fortnight for his injection. Ms Martens added that at first, [EG] was difficult to engage largely due to his disorganised presentation. However, this had improved and he had been attending regularly. Ms Martens said that [EG]'s thought process had "slowed down". She also said that [EG] had settled over the last three or four weeks and that he was pleasant in his interactions. Ms Martens added that although [EG] had filled his medical prescriptions for Cogentin, he is also required to take Epilim (a mood stabiliser). Ms Martens said that [EG] had disclosed that he does not believe he needs Epilim and does not like to take it. She said that [EG] may be taking the Epilim sporadically and expressed concern that he has not had the levels of this medication in his system checked (by way of blood test).

4 In his report dated 24 July 2002, Dr Edgar stated that [EG] suffers from bipolar mood disorder. Dr Edgar also expressed a concern about [EG]'s general health, notably that the swelling of his legs had not been appropriately investigated and could be a sign of major organ damage. In his report dated 30 July 2002, Dr Edgar stated that without treatment for his mental illness, [EG] is a potential danger to himself and others.

5 In his report dated 23 July 2002, Dr Drew diagnosed [EG] as presenting with chronic schizophrenia. Dr Drew added that [EG] does not deny this diagnosis but has stated to him that he does not want treatment for it. In particular, it is noted that [EG] does not want treatment that may impair his capacity to drive a motor vehicle. Dr Drew also stated that treatment would benefit [EG].

6 On the evidence before it, the members of the Tribunal were satisfied that [EG] remains mentally ill.

7 Regarding the issue of risk to his health and safety or whether he is likely to do serious harm to others, the Tribunal was informed by Ms Martens that, in her opinion, [EG] did not present a danger to himself or others at present. However, she added that if [EG] became non-compliant with medication and follow-up, there could possibly be a deterioration of his condition. This view is also expressed by Dr Edgar in his report dated 30 July 2002. Dr Edgar also stated that if the Involuntary Psychiatric Order was not extended, [EG] would not accept treatment "for what is a treatable psychiatric illness".

8 Based on a consideration of the oral report from Ms Martens and the other material before it, the Tribunal was satisfied that it was appropriate to make a further Involuntary Psychiatric Treatment Order for a period not exceeding 6 months and for that order to be reviewed prior to its expiry."

5. On the hearing of this Appeal none of the above findings of fact were challenged. It was accepted that the Tribunal had set out what it found to be the facts, including the opinions expressed by the experts referred to.

6. Pursuant to s 26 of the Mental Health (Treatment and Care) Act 1994 (ACT) (MH (T&C) Act) the Tribunal is empowered to make an involuntary psychiatric treatment order if (and only if):

"(a) the person has a mental illness; and

(b) the tribunal has reasonable grounds for believing that, by reason of that illness, the person is likely to do serious harm to himself or herself or others, or is likely to suffer serious mental or physical deterioration unless subject to involuntary psychiatric treatment; and

(c) the tribunal is satisfied that psychiatric treatment is likely to reduce the harm referred to in paragraph (b) and result in an improvement in his or her psychiatric condition; and

(d) the treatment can not be adequately provided in a way that would involve less restriction of the freedom of choice and movement of the person than would result from the person being an involuntary patient."

7. The essence of the evidence supporting the likelihood of "serious harm" if treatment was not continued was based on the respondent's opinion, as expressed above, that EG is, "untreated, a potential danger to himself and others". It was certainly established that, absent an involuntary order, EG would decline treatment.

8. There was no doubt that EG suffers from a mental illness within the mean of s 4 of the MH (T&C) Act.

9. The question is whether the strictures imposed by s 9 of the MH (T&C) Act have been exceeded. If they have, s 141 grants a right of appeal to a person such as EG. It is a general right of appeal.

10. Section 9 of the MH (T&C) Act provides:

"A person exercising a function or power under this Act, or under an order of the tribunal, in relation to a mentally dysfunctional or mentally ill person shall endeavour to ensure that any restrictions on that person's personal freedom and any derogation of that person's dignity and self-respect are kept to the minimum necessary for the proper care and protection of the person and the protection of the public."

11. Medicated, the appellant is no danger to himself or others, nor will he fail to comply with an order. Absent such an order, it is probable that he will, however, decline medication and become a danger to himself or others, not in the sense of deliberate injury, but by reason of failure to take due care of himself, and, when driving a motor vehicle, accidental injury to others.

12. The Order, as made, only requires EG to submit to medication. It does not otherwise restrict his freedom. The medication is not administered in any undignified or disrespectful manner. He merely takes prescribed pills.

13. In my view, despite the careful argument of Mr Lee, I am satisfied that the Tribunal correctly applied s 26 of the MH (T&C) Act and did not exceed the restrictions imposed by s 9. The fact that he is, when medicated, not at risk of harm to himself or others is not, of itself, an indication that no order may be made. The Tribunal is entitled to consider the likelihood and consequence of refusal to take medication.

14. The appeal is dismissed.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Higgins.

Associate:

Date: 8 November 2002

Counsel for the appellant: Mr J Lee

Solicitor for the appellant: Legal Aid Office (ACT)

Counsel for the respondent: Ms M-T Daniel

Solicitor for the respondent: ACT Government Solicitor

Date of hearing: 23 August 2002

Date of judgment: 8 November 2002