Von Bertouch v Foster [2004] ACTSC 117 (27 October 2004)

Last Updated: 3 November 2004

JAKE DAMON VON BERTOUCH v KERRY FOSTER [2004] ACTSC 117 (27 October 2004)

EX TEMPORE JUDGMENT

No. SCA 56 of 2004

Judge: Crispin J

Supreme Court of the ACT

Date: 23 September 2004

IN THE SUPREME COURT OF THE )

) No. SCA 56 of 2004

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: JAKE DAMON VON BERTOUCH

Plaintiff

AND: KERRY FOSTER

Defendant

ORDER

Judge: Crispin J

Date: 23 September 2004

Place: Canberra

THE COURT ORDERS THAT:

1. the appeal be upheld.

1. This is an appeal against a psychiatric treatment order made on 2 September 2004 by the Mental Health Tribunal. The grounds upon which an order of this kind may be made are stipulated by s 26 of the Mental Health (Treatment and Care) Act 1994 (ACT).

2. That section provides that the Tribunal may make an involuntary psychiatric treatment order in respect of a person, only if the person has a mental illness and a number of other conditions are satisfied including that specified in paragraph (b). That subsection is in the following terms:

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.

3. The Tribunal clearly had the benefit of information provided by the appellant's mother and father and that information was undoubtedly sufficient to cause a Tribunal to have a very real concern as to the appellant's psychiatric condition and as to his willingness and ability to manage it adequately. It appears, however, that the only expert opinion the Tribunal had available to it, was that provided by Dr Drew a psychiatrist who, in a report dated 29 July 2004, stated that the appellant suffers from a severe and chronic mental illness, namely schizophrenia, that his quality of life is seriously impaired by this illness and that he believes that he would respond to treatment. Dr Drew, however, said that the appellant did not represent a significant danger to either himself or to others because of the specific content of the psychosis. He did not address any issue about whether or not there was likely to be serious mental or physical deterioration unless the appellant was subjected to involuntary psychiatric treatment.

4. Accordingly the Tribunal, so far as I can determine, did not have evidence before it which constituted reasonable grounds for the belief required by paragraph (b) of s 26(1). It follows that it had no basis for making the order that it did.

5. In the proceedings before me a further psychiatric report has been tendered, that being a report of Dr Kaasik dated 22 September 2004. Dr Kaasik is the Clinical Director of the Psychiatric Services Unit at the Canberra Hospital to which the appellant was brought following an alleged breach of the psychiatric treatment order to which I have already referred. Dr Kaasik said in her report that he had been observed for a period of 4 days at the Psychiatric Services Unit and concluded:

It is my view that Mr Von Bertouch does suffer from a mental illness probably a schizo-affective disorder. His diagnosis is, however, complicated by drug use. I do not believe that he poses a serious risk of harm to himself or anyone else and I do not believe that his condition will deteriorate significantly without treatment. It is my view that at present he does not fulfil the necessary criteria for a PTO.

6. It follows that the only evidence before the Tribunal and the only evidence before me, is that the necessary grounds which must be established before an involuntary psychiatric treatment order can be made were not in fact capable of being established and accordingly I must uphold the appeal.

7. Mr Von Bertouch, I have found for you and I order that the treatment order be set aside, you are now free to make your own decisions. But in making your own decisions free of any constraint from the Court, can I urge you to give real consideration to the concerns that your parents have for you and that others have for you? One of the moral responsibilities that all members of the community have is to be careful and respectful of the feelings of others, especially people who plainly care about them, people who are distressed about them. Can I also urge you to give some thought, some real thought, to the proposition that you may in fact need some psychiatric care notwithstanding your present beliefs about it? The fact that somebody doesn't believe they have cancer, for example, and doesn't think they need admission and treatment, doesn't mean it's not there. People can be genuinely mistaken and I would ask you to give some serious thought to that.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 2 November 2004

Counsel for the appellant: Self represented

Counsel for the respondent: Self represented

Amicus curiae: Ms G Wong

Solicitor for amicus curiae: ACT Government Solicitor

Date of hearing: 27 October 2004

Date of judgment: 27 October 2004