Lb v Mental Health ACT [2006] ACTSC 15 (16 February 2006)

Last Updated: 6 April 2006

LB v MENTAL HEALTH ACT

[2006] ACTSC 15 (16 February 2006)

APPEAL - Mental Health Tribunal - correct finding on evidence - substantial delay in providing reasons.

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

House v The King [1936] HCA 40; (1936) 55 CLR 499

Robertson v ACT [2005] ACTSC 35

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MENTAL HEALTH TRIBUNAL

No SCA 75 of 2005

Judge: Connolly J

Supreme Court of the ACT

Date: 16 February 2006

IN THE SUPREME COURT OF THE )

) No SCA 75 of 2005

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MENTAL HEALTH TRIBUNAL

BETWEEN: LB

Appellant

AND: MENTAL HEALTH ACT

Respondent

ORDER

Judge: Connolly J

Date: 16 February 2006

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The order made by the Mental Health Tribunal on 28 November 2005 be confirmed.

1. This is an appeal pursuant to s 141 to this Court from a decision of the Mental Health Tribunal (the Tribunal), which was substantively made on 28 November 2005. Section 141 of the Mental Health (Treatment and Care) Act 1994 provides that an appeal may be brought as a right from the Tribunal, and the Court may make such order as it thinks appropriate on the appeal.

2. It is, as a matter of law, an appeal on the merits, and the role of the Court in looking at the record of the Tribunal is to determine the appeal on the principles of House v The King [1936] HCA 40; (1936) 55 CLR 499 to see if there has been an erroneous application. The proper approach this Court should take on such an appeal is set out by Crispin J in Robertson v Australian Capital Territory [2005] ACTSC 35.

3. I have before me in the Appeal Book the full transcript of a number of appearances before the Tribunal on 22 August 2005, 19 September 2005, 14 November 2005 and 28 November 2005. On 28 November 2005 it is apparent that Mr Sullivan appeared before the Tribunal and took the Tribunal through the statutory criteria under the Act for making a Psychiatric Treatment Order.

4. The Act provides in s 28 that the Tribunal may make a Psychiatric Treatment Order in relation to a person if the person has a mental illness, and if the Tribunal has reasonable grounds for believing that because of the illness the person is likely to do serious harm to him or herself, or suffer serious mental or physical deterioration, or is subject to an Involuntary Treatment Order, and the Tribunal is satisfied that the treatment is likely to reduce the harm or deterioration or the likelihood of such harm or deterioration, resulting in improvement in the person's condition, and if the treatment cannot be adequately provided in a way that involves less restriction of the freedom of choice and movement of that person.

5. The Act makes it abundantly clear that the Tribunal may not order any specific drug or form of medication, rather the effect of the order is to require the person to be subject to treatment by the appropriate health service.

6. Having read the appeal papers and the additional documentation that the appellant has put in, and I expressly note that in some of the documentation prepared by some ACT government agencies, her name has been misspelt, and I apologise for that discourtesy. I think the court has got it right in our documents, but I note that in some documents her name is incorrectly spelt.

7. It is abundantly clear that the appellant is of the view that she does not require this treatment, that the treatment is inappropriate and that she does not suffer from a mental disorder requiring a Psychiatric Treatment Order. It is apparent from the history of the papers before the Tribunal that there were a number of opportunities provided to get additional medical material before the Tribunal, and indeed at the penultimate hearing, the name of Dr V Kingham was raised as somebody who could, it seems to me, clarify the situation.

8. The fact is that the only medical opinions before the Tribunal were the reports of Dr A Barker, Psychiatric Registrar, of August 2005. Dr Barker expressed the view that the appellant was suffering from a significant illness and strongly expressed the view that a treatment order was necessary. His report sets out the history of that illness, and indicates that when reviewed, the appellant presented as being quite disorganised with evidence obtained during the actual court process, and displayed poor insight. It indicated there was no acute risk, but indicated that it was highly likely that she would benefit from a period of involuntary treatment and follow-up in the community.

9. There was then a report on 1 November from Dr P Maguire, a consultant psychiatrist. Dr Maguire's report was on the basis of his review of the medical records and interviews that he conducted on 19 November 2004, 16 September 2005, and 7 October 2005, thus indicating in his report dealings with the appellant before the date of this particular intervention. He expressed the view that the appellant suffers from a psycho effective disorder and was showing progressive deterioration.

10. He indicated that the appellant was unable to have insight into that condition, and was avoiding treatment. He expressed the view that without an extension of a treatment order, the illness would be likely to further deteriorate.

11. There was then a report on 17 November 2005, based on an interview which took place on 16 November 2005 as well as an examination of the records by Dr Kingham, Psychiatric Mental Officer at the City Mental Health Services. Dr Kingham confirmed the diagnosis and confirmed the view that it was important that there be a treatment order in place in order to prevent further deterioration and to ensure the best interests of the patient.

12. It seems to me that on the evidence before the Tribunal, the Tribunal clearly made the correct decision, because the only evidence from qualified psychiatrists was that the appellant needed the treatment and that her health would deteriorate in the absence of the treatment.

13. I make the observation that it is clear from the proceedings before the Tribunal, and some of the documentary material, that the Tribunal and many of the treating psychiatrists were well aware of the service that the appellant has given to the community over the years, both in her professional role as an officer, in the past, of the ACT Health Service, and as a community member in working for the interests of persons who are consumers of mental health services, and that has been recognised in a number of ways.

14. But the evidence before the Tribunal from psychiatrists was that at the time there was a significant illness that needed treatment. I understand that the appellant is of the view that that is wrong. The order that was made by the Tribunal I will confirm today, that is to say it seems to me it was a correct order. The effect of that order was that it was to be reviewed in six months, and the review date will be coming up in the next month or so.

15. There is, in the additional material provided by the appellant, a letter of 1 February 2006 from Dr RL Hodge, a physician with qualifications in psychotherapy, but not a psychiatrist, who indicates that he believes a treatment order is not required at present. It seems to me that that would not be sufficient grounds for me to intervene with the decision of the Tribunal, but I would make the strong recommendation that Dr Hodge's views be taken into account at the review process.

16. I have heard the appellant say today on a number of occasions that she has more senior psychiatrists who express a contrary view to the views of Drs Barker, Maguire and Kingham, but those views were never made apparent to the Tribunal and there is no documentation to support those views here. If there are other psychiatrists who express a different view, it is really important that they be available to the Tribunal at the next review occasion.

17. I therefore will dismiss this appeal today. I make, however, the observation that the appellant has been significantly disadvantaged as has the respondent to this appeal, by the extremely late delivery of the Tribunal's reasons, and indeed it was indicated this morning that the reasons still had not arrived. We took an adjournment at 10.30 am to give the Tribunal time to deliver its reasons to the Court, but the reasons were not delivered.

18. At 11.05 am a document headed "Draft" was delivered to my chambers, in which the appellant's name was misspelt, and which set out what appear to be draft reasons of the Tribunal.

19. The Act provides quite clearly under s 108, that either party to a determination may request reasons in writing, and that such reasons are to be provided within 28 days. I have before me a letter dated 4 November 2005, from the ACT Government Solicitor to the Tribunal which was a request for written reasons, and a request of 7 December reminding the Tribunal of that request, and a request of 24 January, reminding the Tribunal of that request. In Robertson v ACT, this Court stressed the importance of strict compliance with a statutory obligation to provide reasons for a decision to subject a person to a treatment order. It seems to me that it is utterly inappropriate for such a delay to occur. These orders are of great significance. They must be taken very seriously. In this case, it was a treatment order that was based on community treatment, but nonetheless the appellant fundamentally disagrees with it, and her rights are significant and must be considered.

20. In some cases these treatment orders go further and require a person to accept treatment in a facility, whether it be the ward of a hospital, or one of the other facilities in the community run by the Mental Health Service. I find it quite unconscionable that such a significant order can be made and there be a delay from 4 November 2005 to the day of the hearing and indeed partway through the hearing, a delay of over three months in obtaining the reasons in the face of a statutory requirement to provide the reasons within 28 days.

21. If the appellant had sought an adjournment today because of the lateness of the reasons, I would have had to grant it, and that would have imposed a significant additional cost on the community, by way of reconvening this court, and the legal representation for the respondent.

22. Under the Act, the Tribunal is required to give its reasons, and that has not happened. The draft reasons that were delivered to me today followed the form of the oral reasons that were delivered on 28 November 2005, so I could follow the thought processes of the Tribunal and its reasoning. There was no application for adjournment, but I would have granted it if it had been asked for and it would have cost the community additional money.

23. I will be writing to the Attorney-General indicating my concern that in this very significant jurisdiction where the rights of individual community members are significantly affected by way of a treatment order that is granted against their wishes, there should be strict and conscientious adherence to the statutory timeline to provide reasons within 28 days.

24. It seems to me there is no reason that in effect, the transcript of 28 November could not have been taken, transcribed and edited to form the reasons. The Tribunal on that occasion was assisted by counsel for ACT Mental Health, from the Government Solicitor's Office, who took the Tribunal through the statutory criteria. Now, since the oral decisions are in proper form, those decisions should have been provided well before the day of the appeal.

25. The effect of the decision today, however, is that the appeal is dismissed. The Order remains in force.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 16 February 2006

Counsel for the appellant: Appellant in person

Solicitor for the: -

Counsel for the respondent: Mr J Sabharwal

Solicitor for the respondent: ACT Government Solicitor

Date of hearing: 16 February 2006

Date of judgment: 16 February 2006