BM v Hill (ACT Mental Health) & Anor [2007] ACTSC 53 (16 July 2007)

Last Updated: 28 July 2008

BM v PAUL HILL (ACT MENTAL HEALTH) & ANOR [2007] ACTSC 53 (16 July 2007)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE ACT MENTAL HEALTH TRIBUNAL (MH 162 of 206)

No. SCA 22 of 2007

Judge: Higgins CJ

Supreme Court of the ACT

Date: 16 July 2007

IN THE SUPREME COURT OF THE )

) No. SCA 22 of 2007

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE ACT MENTAL HEALTH TRIBUNAL (MH 162 of 206)

BETWEEN: BM

Appellant

AND: PAUL HILL (ACT MENTAL HEALTH)

First Respondent

AND: ACT MENTAL HEALTH TRIBUNAL

Second Respondent

ORDER

Judge: Higgins CJ

Date: 16 July 2007

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

1. In this matter BM appeals against an order made by the Mental Health Tribunal. The reasons for making that order were signed by President Cahill on 14 June 2007. Effectively, the situation which is not in itself in dispute is that BM, as he himself acknowledges, is a person who suffers from schizophrenia. He understands and acknowledges that schizophrenia requires treatment, and treatment by antipsychotic medication. It logically follows from that that treatment is effective if, and only if, the amount of medication taken is sufficient to prevent the recurrence of any symptoms of schizophrenia which, and there is no doubt in my mind about this, in turn leads to social breakdown, thus falling within the definition of serious mental or physical deterioration if that should happen.

2. There is no doubt that the tribunal was entitled to consider that unless adequately treated, BM was likely to find himself in a situation where his illness asserted itself to the extent of serious mental or physical deterioration. The only question or issue is whether that likelihood is averted and could only be averted, at least in the present circumstances, by an involuntary psychiatric treatment order.

3. That is the test, because if BM was taking adequate medication and voluntarily complying with that requirement, then that proviso could not be satisfied. There is no doubt that the treatment in question may reduce the likelihood of harm. That seems to be accepted on all sides. Even BM himself says that he understands that he needs some medication. The only question he has is about the level of medication.

4. It appears from Dr Kingham's evidence that her opinion is that 15 milligrams, at least in the present state of BM's illness, is a necessary minimum for him to be unlikely to suffer any harm or deterioration in his symptoms. Her view was that while the dosage might be reduced temporarily from time to time, that would not be a longer-term solution and it would cause symptoms of his illness to reassert themselves.

5. It is true that if BM could be insightful enough to realise that that was about to happen he could, in consultation with his medical practitioner, be it Dr Kingham or whoever else, increase the dose again to effectively eliminate those symptoms. However, the further assessment Dr Kingham makes and which the tribunal accepted is that, at least at present - and Dr Kingham did say this is not necessarily a permanent thing - there is a sufficient lack of insight on BM's part to make it a risk, at least, that that would not occur. It was on that basis too that the tribunal made the order.

6. I accept that there may be, of course, advances in medication which would change the situation. However, subject to that, current medication has worked and worked well. At 15 milligrams it has worked well and instances of the recurrence of symptoms have occurred when that dose has been lowered. Therefore, it would seem to me that the past experience says that Dr Kingham's opinion is clearly correct and there is an unacceptable risk in reducing the dosage.

7. At the moment, of course, there is no need for any further restrictions on BM than presently in place. This is because he does comply, given the order that is in place. It is not necessary for any other restrictions to be placed upon him other than that which is represented by the order which is relatively minimal, as it is required to be. I am not persuaded that the order made by the tribunal was in any way tainted by error and I say that even with the benefit of the evidence given by BM and, of course, by Dr Kingham in these appeal proceedings.

8. For those reasons I would dismiss BM's appeal, though I note that the matter is to be reviewed by the tribunal itself, as President Cahill says, in the near future. It may well be at that time that the tribunal is satisfied that no further extension of the order needs to be made, but that is a matter for the tribunal to consider.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 16 July 2007

Counsel for the appellant: Mr J Lee

Solicitor for the appellant: Legal Aid Office (ACT)

Counsel for the first respondent: Ms K M Katavic

Solicitor for the first respondent: ACT Government Solicitor

Counsel for the second respondent: No appearance

Solicitor for the second respondent: ACT Mental Health Tribunal

Date of hearing: 16 July 2007

Date of judgment: 16 July 2007