Jr v Mental Health ACT [2006] ACTSC 10 (2 February 2006)

Last Updated: 6 April 2006

JR v MENTAL HEALTH ACT

[2006] ACTSC 10 (2 February 2006)

APPEAL - Mental Health Tribunal - no error of law.

Mental Health (Treatment and Care) Act 1994, s 28

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MENTAL HEALTH TRIBUNAL

No SCA 89 of 2005

Judge: Connolly J

Supreme Court of the ACT

Date: 2 February 2006

IN THE SUPREME COURT OF THE )

) No SCA 89 of 2005

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MENTAL HEALTH TRIBUNAL

BETWEEN: JR

Appellant

AND: MENTAL HEALTH ACT

Respondent

ORDER

Judge: Connolly J

Date: 2 February 2006

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The order made by the Mental Health Tribunal on 1 November 2005 be confirmed.

1. This is an appeal from a decision of the Mental Health Tribunal (the Tribunal) that was made on 31 October 2005, resulting in an order dated 1 November 2005, in which the Tribunal ordered that the appellant be subject to a psychiatric treatment order pursuant to s 28 of the Mental Health (Treatment and Care) Act 1994 which was to be in effect for six months. It is apparent from the material in the Appeal Book that this was one of a number of previous such orders.

2. At the hearing, the appellant asserted that he should not be subject to a treatment order. He asserted that as a matter of fact he was not suffering from any mental health difficulty, but that there had in the past been a physical illness to his brain due to the ingestion of some toxic substances as a result of a gassing incident many years previously.

3. The Tribunal had before it two reports, one from Dr D Tracy, who is a consultant psychiatrist at Brian Hennessy Rehabilitation Centre and employed by ACT Health. Dr Tracy has been a treating and consulting psychiatrist for the appellant for many years. Her report, which was before the Tribunal and appears at page 100 of the Appeal Book, states that the appellant suffers from a severe mental illness, namely schizophrenia, and because of his illness he is likely to do serious harm to others and would suffer serious deterioration of his mental health without treatment.

4. She further said that she believes that currently the appellant's illness requires treatment in a supervised setting to ensure that he adheres to his medication and is provided ongoing rehabilitation and support. The appellant made it clear at the hearing, and at earlier hearings, that he was not satisfied with and did not accept Dr Tracy's report. As a consequence a second opinion was arranged by the Tribunal from Dr C Corcos, a psychiatrist attached to the Belconnen Mental Health Team.

5. Dr Corcos' report was also before the Tribunal. Dr Corcos said in that report that he is confident that the appellant is suffering from illness on the schizophrenia spectrum, and that as such he will benefit from long-term treatment with anti-psychotics and confirmed that he doubted whether the appellant would continue with the treatment if there was no order, and indicated that there would be difficulties if he did not comply with the treatment.

6. The appellant made the objection at the hearing that he believed that Dr Corcos was not independently forming a view but rather was relying on other reports. Dr Corcos confirmed at the hearing that he had read prior medical reports and one would expect that any medical professional would look at the previous treatment notes. The history is that the appellant has been subject to these types of orders and subject to psychiatric treatment for many years, including at facilities in New South Wales.

7. Dr Corcos agreed that he had read Dr Tracy's report and other reports, and also agreed that he had spoken with Dr Tracy, but he made it clear at the Tribunal hearing that he was forming his own independent judgment, and his own independent judgment was that the appellant suffered from a mental illness, and that without appropriate treatment he would be a danger to himself. It seems to me that there was ample evidence before the Tribunal to that effect. Indeed the only medical evidence before the Tribunal was that the appellant suffers from a mental illness and requires treatment.

8. The Tribunal accepted, quite properly, that the appellant truthfully and genuinely is of a view that he does not suffer from a mental illness. Chief Magistrate Cahill very properly, in my view, made the observation that he has known the appellant for some years and he has always been honest when he has been before a mental health tribunal, and I accept that. I accept that that is the appellant's firm view. But I have got to make the decision today whether the Tribunal made an error of law.

9. The only evidence, by way of psychiatric evidence, that the Tribunal had was from two psychiatrists who expressed the view that the appellant was suffering from a mental illness, that the appellant was, as a consequence of that mental illness, not aware of the level of his illness, and that it was important that he be subject to a treatment order.

10. It seems to me therefore that the Tribunal in no way made an error of law and as a consequence the appeal must be dismissed. I confirm the order made by the Tribunal on 1 November 2005. The consequence of that is the appeal is dismissed and the appellant will remain subject to that treatment order. What I have said today will be transcribed and will be available in due course if the appellant wants to take this matter any further.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 2 February 2006

Counsel for the appellant: Appellant in person

Solicitor for the appellant: -

Counsel for the respondent: Mr GC McCarthy

Solicitor for the respondent: ACT Government Solicitor

Date of hearing: 2 February 2006

Date of judgment: 2 February 2006