Gm v Penony & Anor [2002] ACTSC 57 (13 June 2002)

Last Updated: 20 June 2002

G M v MARGARET PENTONY and ANOR

[2002] ACTSC 57 (13 June 2002)

CATCHWORDS

APPEAL - Mental Health Act - involuntary psychiatric treatment order - whether material before Mental Health Tribunal sufficient to support order.

MENTAL HEALTH - whether person under effective medication pursuant to involuntary psychiatric treatment order ceases to be in a condition justifying order.

Mental Health (Treatment and Care) Act 1994, s 26, s 37, s 141

Magistrates Court Act 1930, s 214

State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306; [1999] HCA 3

Uranerz (Aust) Pty Ltd v Hale (1980) 54 ALJR 378

Rosenman and Fraser v B (unreported, Miles CJ, 8 December 1987)

ON APPEAL FROM THE MENTAL HEALTH TRIBUNAL

No. SCA 14 of 2002

Judge: Miles CJ

Supreme Court of the ACT

Date: 13 June 2002

IN THE SUPREME COURT OF THE )

) No. SCA 14 of 2002

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MENTAL HEALTH TRIBUNAL

BETWEEN: GM

Appellant

AND: MARGARET PENTONY

First Respondent

AND: DANIEL BONNER

Second Respondent

ORDER

Judge: Miles CJ

Date: 13 June 2002

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. There be no order as to costs.

1. 1. This is an appeal from an involuntary psychiatric treatment order made by the Mental Health Tribunal on 4 April 2002. The appellant appears in person.

2. Appeals from the Mental Health Tribunal are made pursuant to s 141 of the Mental Health (Treatment and Care) Act 1994 (the Mental Health Act), which incorporates s 214(3) and s  214(4) of the Magistrates Court Act 1930. The result is that the appeal proceeds by way of re-hearing on the evidentiary material before the Mental Health Tribunal, subject to further evidence which may be called by leave.

3. In appeals by way of re-hearing there is a well established principle which recognises that a court or tribunal at first instance has a distinct advantage in seeing and hearing witnesses and that an appeal court will not interfere with primary findings of fact which depend on the credit of witnesses unless those findings can be shown to be wrong on some basis which does not depend upon the credit of the witness in question (see State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq)(1999) 73 ALJR 306; [1999] HCA 3, Uranerz (Aust) Pty Ltd v Hale (1980) 54 ALJR 378).

4. In an appeal from a tribunal not bound by the rules of evidence and constituted in part by persons with expertise in a field of knowledge common to matters over which the tribunal is entrusted with jurisdiction, a court of law would, I think, be hesitant to interfere with findings of fact which may be made by the tribunal in the field of that specialist knowledge, subject of course to the usual principles of judicial review for reason of denial of procedural fairness, lack of jurisdiction and so on, which involves matters of law and not specialist knowledge or expertise of the kind possessed by the tribunal.

5. Hence appeals from some specialist tribunals are confined to appeals on questions of law only, for example, under the Residential Tenancies Tribunal Act 1997, s 126.

6. This is not so however with appeals from the Mental Health Tribunal since, as already indicated, the Court is obliged to re-hear the case and determine the appeal subject only to the constraints already mentioned.

7. Under s 26(1) of the Mental Health Act the Mental Health Tribunal may make an involuntary psychiatric order only if the following four criteria are satisfied -

"(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."

8. Mental illness is defined in s 4 to mean:

"[a] condition that seriously impairs (either temporarily or permanently) the mental functioning of a person and is characterised by the presence in the person of any of the following symptoms:

(a) delusions;

(b) hallucinations;

(c) serious disorder of thought form;

(d) a severe disturbance of mood;

(e) sustained or repeated irrational behaviour indicating the presence of the symptoms referred to in paragraph (a), (b), (c) or (d)."

9. Findings in relation to all these criteria are likely to depend upon the type of specialist knowledge already referred to, and bearing in mind also s 83 of the Mental Health Act and its requirement that, for the purposes of making a mental health order, the Mental Health Tribunal must be constituted by three persons including a psychiatrist member, a psychologist member or a mental health services member. In the present case, the Mental Health Tribunal included a psychiatrist member.

10. The orders sought in the notice of appeal are an order setting aside the involuntary psychiatric treatment order and also an order that the appellant's "arrest" under the Mental Health Act be revoked.

11. The grounds of the appeal are that the involuntary psychiatric treatment order was made on irrelevant and false information and that the arrest was made on false and misleading information which was not investigated.

12. By way of background it may be said that the appellant alleges, and has alleged for some time, that she has been the subject of harassing and illegal conduct on the part of a neighbour. She complains that when police arrived at her house on 25 March 2002 in response to information received, they failed to investigate the allegations made by the appellant and that in effect they should have arrested the neighbour rather than assist in the removal of the appellant to hospital for the purpose of assessment or treatment under s 37 of the Mental Health Act. The allegations of the appellant against the neighbour could not have been dealt with in any meaningful way by the Mental Health Tribunal which did not have power to investigate the allegations, let alone bring about the arrest of the neighbour.

13. With regard to the involuntary psychiatric treatment order, the Mental Health Tribunal published written reasons in response to an order made by this Court on 3 May 2002. The reasons included, by way of a narrative statement, the facts which may be taken to have been found by the Mental Health Tribunal. The background facts may be summarised as follows.

14. On 14 March 2002, the son of the appellant telephoned a unit of the Canberra Hospital and reported conduct on the part of the appellant and her expressions of fear for her safety from persons who were spying on her and otherwise acting to her detriment. Acting on this information, members of a crisis team and members of the Australian Federal Police attended the appellant's home. According to interview notes, the appellant, who was otherwise neat, tidy and pleasant, "exhibited a complex paranoid delusional system". The team members concluded that she appeared to be suffering from a delusional disorder but, in view of her refusal to cooperate for the purpose of an assessment by a psychiatrist, no further action was taken.

15. On 25 March 2002, similar events occurred and the appellant was brought to the Canberra Hospital. The first respondent, a psychiatrist, authorised the involuntary detention and care of the appellant at the hospital pursuant to s 41 of the Mental Health Act.

16. The Mental Health Tribunal reviewed the decision of the respondents and a hearing took place before the Mental Health Tribunal on 4 April 2002. The appellant was represented by a solicitor. In its reasons, the Mental Health Tribunal acknowledged that it had access to previous applications and clinical notes and went on to express itself as follows:

"Dr Kennedy informed the Tribunal that there had been increasing concern for [the appellant] expressed by her neighbours, children, police and other members of the community that had dealings with her. He recapped the history and made comments on observations he and other psychiatry staff had made since she had been admitted to hospital. Dr Kennedy advised the Tribunal that Dr Pentony, Dr Bonner and he had diagnosed [the appellant] as suffering from a mental illness being late onset schizophrenia or a pre senile paraphrenia, stating it was an illness characterised by delusions, particularly paranoid delusions.

Accordingly, based on the history and the above mentioned psychiatric opinions, the Tribunal finds that [the appellant] has a mental illness."

17. The Mental Health Tribunal then referred to and accepted the opinion of Dr Kennedy and treating staff that, without treatment, the appellant's condition was likely to deteriorate seriously, and that she was likely to risk her personal safety as she became increasingly isolated, paranoid and unable to trust others. The Tribunal also noted and accepted the opinion of Dr Kennedy that because the appellant would not accept the diagnosis, the required treatment could not be given voluntarily.

18. Accordingly, the Tribunal expressly concluded that:

* there were reasonable grounds for believing that, by reason of her mental illness, the appellant was likely to do serious harm to herself or others through accidental means and that she was likely to suffer mental or physical deterioration unless subject to involuntary psychiatric treatment,

* psychiatric treatment was likely to result in an improvement in her psychiatric condition and, as a result, to reduce the aforementioned harms, and

* the treatment required could not be adequately provided other than by an involuntary psychiatric treatment order.

19. With regard to the duration of the operation of the order, the Tribunal said that having regard to the needs and views of the appellant, the operation of the order should be for a period of three months only.

20. In the appeal, the appellant was granted leave to cross-examine her son and the second respondent referred to. They confirmed the evidence previously given and added that since the treatment in the hospital situation, from which she was discharged on 11 April 2002, the appellant has been taking her medication at home where she lives and looks after herself, monitored by a Mental Health worker who visits regularly. Dr Bonner held a cautiously optimistic view that if she continues on her medication (whether voluntarily or as a result of a further involuntary psychiatric treatment order) the appellant's condition is likely to remain as it was at the hearing. Both the second respondent and the appellant's son agreed that from their observations the appellant's appearance and condition in the courtroom was much improved from what it had been at the date of the order of 4 April 2002. However, the second respondent did not express a view as to the likely situation if the appellant was no longer subject to an involuntary psychiatric treatment order.

21. The appellant did not give evidence in the appeal. She made submissions on her own behalf. She submitted that she had been unfairly treated from the time of the visit to her home on 14 March 2002 and particularly by the apprehension by police on 25 March 2002. As I understand it, she explained her behaviour on the latter occasion by the stress created by the situation itself. She submitted that the complaints she made about the neighbour and associated events were soundly based and not the result of delusions.

22. The appellant presented her case clearly and cogently and would not necessarily give the impression of being subject to any mental disorder at the time of the hearing of the appeal. Whilst under medication, it appears that she is not a danger to herself or anyone else.

23. However, it has not been shown that the Mental Health Tribunal fell into error in its assessment of the material before it and its ultimate findings which led to the making of the compulsory psychiatric treatment order. To the extent that the present appeal is a re-hearing, I take the same view as expressed previously in a decision under the former Mental Health Ordinance 1983 in Rosenman and Fraser v B (unreported, Miles CJ, 8 December 1987) that the fact that a person's mental condition is temporarily effected by medication to the extent that he or she is no longer a danger to himself, herself or anybody else does not mean that the overall capacity of the person as it probably exists without medication may still constitute a disorder for the purposes of mental health legislation. On the material before the Mental Health Tribunal and before me, I think that the findings made by the Tribunal were, and remain, valid.

24. Hence, whilst the appellant is understandably concerned that she remains subject to an involuntary psychiatric treatment order which was made as a result of circumstances which she regards as harsh, and unfair and without full investigation into her own allegations, the grounds for setting aside the order have not been made out. The appeal will be dismissed, no order as to costs.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Miles.

Associate:

Date: 13 June 2002

Counsel for the Appellant: Appellant in person

Counsel for the Respondent: Mr S Pilkinton

Solicitor for the Respondent: ACT Government Solicitor

Date of hearing: 3 June 2002

Date of judgment: 13 June 2002