BHATTACHARYA vy THE MEDICAL SUPERINTENDENT, NEPEAN HOSPITAL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, MEAGHER and SHELLER JJA 8 August 1994, 8 August 1994 [1994] NSWCA 24 Appeal from Protective Division — Involuntary patient detained under Mental Health Act 1990 — Application under s285 of the Act. Liberty of individual — Need to scrutinise reasons for detention. Statutory Procedure — Need to follow terms of section. Held: (1) Plaintiff was suffering from a mental illness. (2) He was a mentally ill person. (3) Care of a less restrictive kind was not appropriate or reasonably available. ORDER Appeal dismissed with costs. Mahoney JA This is a matter in which the court feels a decision should be given as soon as may be. The court, having heard the detailed arguments of counsel and read their written submissions, is in a position to give a decision and I shall express my own views in relation to the matter. This is an application made under s285 of the Mental Health Act 1990. It was brought by summons. The summons that appears operative at the moment is one bearing a file stamp 25 March 1994 of the Protective Division. It is a summons seeking an order, inter alia, that the defendant, Mr Pranay Bhattacharya, be brought before the court for examination pursuant to s285(2) of the Mental Health Act. The background against which the summons was filed is this. The plaintiff has apparently had, in recent years, more than his share of troubles. He was a member of the Public Service and in or about 1981 his services were terminated in circumstances which he did not accept. At least, there has been litigation in relation to that matter, litigation which, as appears from the court papers, reached this Court. Subsequently in November 1992 the plaintiffs wife died. That must no doubt have caused him significant distress. But, however that be, it has been found that he has been exhibiting signs and symptoms which some of the medical practitioners saw as evidencing a mental illness. It is not necessary for me to detail in this judgment all of the facts; they are set out in the judgment of Brownie J, the trial judge. His Honour, in a long and detailed judgment, set out, over a period of some twenty pages or so, the events which have taken place relevant to the issues in the present matter. I shall not extend my judgment by repeating them. As a result of what happened the plaintiff was taken into detention, that is, he became an involuntary patient under the Mental Health Act 1990. Provision is made by s285 of that Act for, if I may put the matter generally and somewhat inaccurately, obtaining an order of discharge of a person so held. The present summons was brought apparently in reliance upon this section. I may say parenthetically that, as far as appears in the material before this Court, the statutory procedure does not appear to have been followed exactly. It is, I think, important that a procedure such as $285, if it is to be followed, be 2 UNREPORTED JUDGMENTS followed according to the terms of the section. There may otherwise be questions as to the effect or possibly the validity of orders which are made following a procedure otherwise than in accordance with the section. In saying that the procedure which the statute prescribes was not followed, I mean this. The section provides that, in the events there referred to, the Supreme Court "must order the medical superintendent to bring the person before the Court for examination at a time specified in the order." The section provides that where a person is (I take the present case) detained in a relevant hospital and the court receives information on oath, or has reasonable cause to suspect, that the person may be likely to be detained in hospital - I am not stating the whole of the section - then the court must order that the medical superintendent bring the person before the court, for examination. It may be that this procedure was intended to take the place of the order nisi procedure which in this State previously was adopted in relation to habeas corpus proceedings. However that be, s285(2) provides that if, on examination of the relevant person under the section, "the medical superintendent is unable to prove on the balance of probabilities" that the person is a mentally ill person and that there is no other care of a less restrictive kind appropriate and reasonably available to the person, then the court "must order that the person be immediately discharged from the hospital in which the person is detained." As I have said, in form that procedure was not followed in this case. As far as counsel have been able to inform the court there does not appear to have been a court order for examination in pursuance of s285(1) and therefore the procedure which is required by s285(2) was not followed. It may be that these defects in procedure would have been enough to justify the dismissal of the present appeal. However, the substance of the matter is before the court and, as Mr Reuben has properly reminded the court, the plaintiff is obviously desirous of having his position properly clarified. The court has therefore dealt with the matter upon the basis that the matter is properly before the court and should be dealt with in accordance with the section. I may say that before the matter came before Brownie J there had been a consideration of the plaintiff's position by various doctors and one at least of them, if not more, examined him following the commencement of the proceedings. There had also, as I understand the papers, been consideration of some aspects of his condition or position by one of the Mental Health Tribunals. When the matter came before Brownie J his Honour saw the three issues, which in a practical sense required decision by him, to be the following: first, whether the plaintiff suffers from a mental illness within the Act; second, if he does, is he a mentally ill person within the Act; and third, if those are answered against him whether there is, within the terms of s285(2)(b), care of a less restrictive kind appropriate and reasonably available to him. The matter has been argued in this Court generally upon the same basis. That, in my opinion, is a proper basis on which to consider the case which the plaintiff has put forward on appeal. It is proper to record that the court has proceeded with the hearing of this matter upon the basis that where there is detention of an individual, that detention must be justified and justified either according to the general law or in accordance with the relevant statute. The court will always examine carefully whether there is justification for the detention of any person. Traditionally, in a case such as the present, this was done by habeas corpus. Properly pursued s285 provides a UBRIATTACHARYA v THE MEDICAL SUPERINTENDENT, NEPEAN HOSPITAL (Mahone? JA) statutory procedure for this purpose. It is, in my opinion, proper that the court emphasise the care with which these matters will be considered. A person's liberty is not to be taken away merely because those who are caring for him think that it is in his best interests that it be so. If liberty is to be infringed what is done must be justified according to the law. The attitude which the courts adopt in this regard is not adopted because of suspicion of or by way of criticism of those who are concerned with the care of persons in a psychiatric hospital or in a psychiatric context. This attitude is taken because the court, quite properly, requires that the liberty of the individual be protected. It is proper to record also that when the proceeding commenced the court was informed that by some procedure of which the court has not in detail been appraised the plaintiff has been released from the hospital. It would appear that some steps are being taken with a view to his care. That might have been a reason for the court putting aside the appeal. But, as I have said, and as Mr Reuben has properly pointed out, the plaintiff should have his substantive position determined. Accordingly, notwithstanding he is no longer in care in the hospital, the court has proceeded to consider the substantial merits of the appeal. I come, therefore, to consider whether it has been established that the plaintiff suffers from a mental illness. The term "mental illness" within the Act - and it is the definition of it in the Act which is relevant - is defined in schedule 1 of the Act to mean: "a condition which seriously impairs, either temporarily or permanently, the mental functioning of the person and is characterised by the presence in the person of any one or more of the following symptoms: (a) delusions... " The case which has been made for the defendant in this proceeding is that the plaintiff was, at the relevant time, suffering from a mental illness characterised by delusions. The learned judge, after careful consideration of the mass of medical evidence which was tendered, came to the conclusion that the plaintiff was suffering from such an illness. His Honour, in the course of his judgment, said: [1] "On the totality of the evidence, I consider that the case advanced by the defendant that the plaintiff is suffering from a delusional state is 'overwhelming', to adopt the expression of Dr de Moore. His Honour then came to the conclusion that in fact there did exist the delusions or a delusional state - I do not think that it matters precisely which in the present context - on which the defendant relied. His Honour then came to consider the matter to which Mr Reuben, in his detailed argument, directed persistent attention, that is, whether the condition representing the mental illness was one which: "seriously impairs... the mental functioning of" the plaintiff. There was evidence given by certain of the medical witnesses that, in a number of respects, the plaintiff, notwithstanding the delusions or delusional state from which he suffered, was continuing to function in his ordinary daily life. Reference was made to "cognitive function", to what he did in his ordinary activities, and so on. I do not pursue all of the detail of the evidence in this regard. The thrust of what Mr Reuben put suggested - at least some facets of it did - that because of that there was not a serious impairment of the mental functioning of the plaintiff within the definition of mental illness. It is proper to emphasise that the definition looks not to the functioning in ordinary life of the person concerned. It specifies "the mental functioning of' the person. What is in question is the way in which mentally he functions. It may be 4 UNREPORTED JUDGMENTS that a person who is subject to serious and prolonged thought disorders may yet be able to cope to a significant or substantial degree with the ordinary exigencies of life. But such a person may yet have an impairment of mental functioning within this particular definition. The judge considered whether this was so and, in the course of his judgment, said: [2] "The next question then is whether the plaintiffs delusional condition seriously impairs his mental functioning. Dr Harris expressed the view that it does, and it interfered significantly with the plaintiff's life, forcing him to think that numerous groups of people had cut him off, so that he became estranged from them; and it had led him to make numerous complaints, which had been rebuffed, so that he felt angry and frustrated and looked for other means of gaining justice. The doctor went on to say that the fixity of the plaintiff's beliefs had dominated his life, and to explain that delusional beliefs may infiltrate into all aspects of a patient's life, and poison the patient's relationships with other people, so as to constitute a severe impairment, if the pattern persists over a long period. Then, as old relationships are discarded, and new ones arise, they become part of the extended persecutory system.' His Honour carefully considered the nature of impairment of functioning required by the definition and correctly addressed himself to the evidence in relation to it. He referred, in particular, to the evidence of Dr Harris. Mr Reuben has taken us to portions of the evidence of Dr Harris and it was proper that he do so. It is therefore appropriate that I record part of the evidence that the doctor gave in his report of 17 March 1994. The doctor, in the last three paragraphs of his report, said this: [3] "Mr Bhattacharya presents as an intelligent and polite Indian man. He is neatly dressed and co-operative with staff on the ward. He is dismissive of the proceedings that have detained him and has an arrogant disregard for information or opinion that differs from his own. This also extends to his estimation of the treating staff. He denies any great emotional distress from his present experiences but considerable irritation. He does not appear depressed although he agrees he is still distressed by his wife's death. He displayed an intellectualised detachment from this. There is no evidence of any formal thought disorder though his answers to questions are at times tortuous and circumlocutionary. At all times he was careful not to directly support any statement that implied a belief in a conspiracy, however his manner conveyed these suspicions. As is indicated above there is no evidence of any hallucinations. He has a persecutory delusional system. He has no insight into this. In summary Mr Bhattacharya is a 51 year old electrical engineering lecturer with a long standing delusional belief that a group of people, not only in Australia but in other countries as well, have conspired to harm him and as part of this conspiracy, murdered his wife. This delusional system has involved a large number of people with whom he has come in contact including local doctors, police, the Disciplinary Tribunal staff, politicians and the haematology staff at Westmead Hospital. As a result of the belief he has continued to pursue evidence that his wife was poisoned, he has intimidated the Coroner at Westmead Court resulting in increased levels of security there, he has implied threats to some with whom he has come in contact in the pursuit of proof of his ideas, and lastly he has apparently engaged a private investigator to determine where a particular doctor from Westmead lived with the stated intention to kill his wife and children. UBRIATTACHARYA v THE MEDICAL SUPERINTENDENT, NEPEAN HOSPITAL (Mahoney JA) In other areas of his life Mr Bhattacharya has been able to continue to function at a high level, however he continues to be distressed and is isolated because of his beliefs. In my opinion Mr Bhattacharya is suffering from a Delusional Disorder (persecutory type). Because of the fixity with which Mr Bhattacharya has pursued his delusional system and the increased threat to the targets of his belief implied by the employment of a private investigator I believe that it is necessary to detain Mr Bhattacharya under the Mental Health Act on the grounds that he is a danger to other people. A treatment plan including the use of a depot anti-psychotic medication because of the likelihood of poor compliance with oral medication and the use of a Community Treatment Order to ensure compliance is envisaged." Also in the doctor's oral evidence reference was made to the kinds of conspiracy which formed one of the delusions to which, in the opinion of the judge and some of the medical witnesses, the plaintiff was subject. Without attempting to cover all of the evidence it is proper to take an example. Dr Harris said this: "He has on June | of my interviews with Mr Bhattacharya, he referred to a conspiracy between the Australian Government and the Indian and British High Commissions who have conspired to hide certain facts as to both his earlier hearing in front of the Public Service Board, but also a conspiracy that led to the death of his wife." It is arguable that there was evidence which, construed in a proper way, might have been accepted by the judge as suggesting the contrary conclusion. In the position of conflicting evidence, if there be such, a judge is entitled to choose between witnesses and to accept those that he thinks are acceptable and reject those that he thinks are not. In this case - I put the matter generally - the judge indicated a preference for the witnesses called by the defendant rather than by the plaintiff. At least in relation to one part of the evidence, he indicated that in terms. It is, in my opinion, clear that the judge relied upon the evidence of Dr Harris and of other medical witnesses who gave evidence the effect of which he summarised in his judgment. The court should, I think, act upon the assumption that the judge, in accepting one witness and rejecting another or portion of the evidence of one or the other, was influenced by what he saw of the witness before him, within the terms of the Abalos v Australian Postal Commission (1990) 171 CLR 167 and the cases which have followed that decision. That, of course, makes it the more difficult for this Court, were it minded to do so, to depart from the judge's conclusions. In my opinion, having had the benefit of examining the evidence, I would, were I dealing with the matter on the evidence in the appeal papers, come to the same conclusion as the judge. However that be, I do not think it is proper for this Court, having regard to the advantage which the judge had, to come to a different conclusion. For the reasons which, albeit in a dissenting judgment, I gave in Chambers v Jobling (1986) 7 NSWLR 1 and which appear in other cases which have subsequently dealt with the matter, I do not think it would be appropriate or proper for this Court to come to a different conclusion. Therefore, on the first issue, whether the plaintiff was suffering a mental illness of the relevant kind, the finding of the learned judge was, in my opinion, correct. I come to the second issue, namely, whether the plaintiff was a mentally ill person. Reference was made in this regard to the definition - not perhaps an exhaustive definition but a statutory definition - contained in s9 of the Mental Health Act. S9, as far as here relevant, provides: 6 UNREPORTED JUDGMENTS [4] "A person is a mentally ill person if the person is suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary: [5] (a) for the person's own protection from serious physical harm or; [6] (b) for the protection of others from serious physical harm, [7]... S9 deals with other matters but the portion of the section relied on in the present case is that to which I have referred. The judge concluded that the evidence established that there were "reasonable grounds for believing that care treatment or control of the plaintiff was necessary for the protection of others from serious physical harm." The "other persons" involved were a professor who had been concerned with the treatment of the plaintiff's late wife and members of his family. The judge, in his summary of the facts, detailed the evidence at considerable length. He spent some thirty to forty pages setting out in chronological order what had happened and references to the evidence, particularly evidence in relation to this aspect of the matter. The learned judge accepted what had been said in this regard by at least three of the witnesses - Dr Helena Berenson, Nurse Easterbrook, and Dr Lammi. Again I shall not lengthen this judgment by detailing what was said. But, in his judgment, the learned judge indicated that he accepted what had been said by Dr Berenson as to observations made to her by the plaintiff m the course of her treatment of him as a patient. In February 1994, in the course of her treatment, the doctor said that the plaintiff informed her that he had engaged a private investigator to watch Professor Bradstock's home in Drummoyne, that is, the home of his wife and daughter. She said that he stated that he intended to kill them so that Dr Bradstock could "feel the same pain" he, the plaintiff, had experienced. She said he had stated this "very calmly and coolly with a glazed look, poppy-eyed". (I have taken my account of it from her notes which appear at page 462 of the appeal papers.) Subsequently, in her evidence, she dealt at some length with what was said and was subject to detailed cross examination in relation to the matter. His Honour accepted, I believe, the thrust of what she had said, namely, that the plaintiff had made to her a serious and credible threat to kill Professor Bradstock, or perhaps more accurately his wife and daughter, for the reasons to which I have referred. Secondly, reference was made to a statement which, in the middle of March 1994, the plaintiff made to Nurse Easterbrook, one of the medical staff concerned with the care and custody of him. Nurse Easterbrook also made notes at the time of what had been said and it is not necessary for me to repeat what she recorded. She also gave oral evidence before the judge and his Honour was able to assess her as a witness of credibility. The suggestion emerging from her evidence - again I put the matter generally - is that at that stage the plaintiff was still proceeding with the idea of pursuing Professor Bradstock, seeking to find the address of him or his family, with a view, the suggestion has been, to carrying out the threat that was referred to by Dr Berenson. Reference was also made by Dr Lammi to a telephone conversation which the judge accepted was a conversation with the plaintiff when the plaintiff telephoned Dr Lammi, with a view to obtaining information concerning Professor Bradstock. The summation of these three matters provided, in my opinion, cogent evidence upon which the judge could find that there was a real possibility, a threat or URIATTACHARYA v THE MEDICAL SUPERINTENDENT, NEPEAN HOSPITAL (Mahoney JA) otherwise "reasonable grounds", for believing that the plaintiff might pursue the professor and/or his family and do them serious physical harm. His Honour came to the conclusion, in terms of s9(1) that "there are reasonable grounds for belief that care, treatment or control of the person is necessary... for the protection of others from serious physical harm." Having regard to the nature of Mr Reuben's submissions, I should emphasise again that, while this is a rehearing by this Court under s75A of the Supreme Court Act, in practical terms, the judge having accepted the witnesses in the manner to which I have referred, it is for this Court to accept what the judge found unless, within the proper principles, the details of which I need not pursue, it is enabled to go behind his findings of fact. I have put that matter in a general way: it is not necessary to pursue the detail of the law in this regard. But, having regard to the way in which the matter was argued, it is proper to say that, in a practical sense, Mr Reuben was faced with the task of persuading this Court to go behind the findings of fact made by Brownie J in this regard. His task, for the reasons I have given, was an impossible one. The judge properly assessed the situation in terms of the provisions of s9(1). There was evidence upon which he could come to the conclusion that he did upon the basis of the acceptance of some of the witnesses who gave evidence before him. He was not shown to have been guilty of any error of principle nor was there any error of fact sufficient to warrant this Court going behind his decision. In those circumstances I do not think this Court is authorised by law to come to a conclusion different from that to which the judge came. Having said that, were I to deal with the matter upon the basis of the evidence of the appeal papers I would, on balance, and giving proper regard to the satisfaction necessary to be achieved within Briginshaw v Briginshaw principles come to the substantial conclusion to which the learned judge came. In all the circumstances, therefore, I think the appeal fails on this second issue. It is proper to say, before leaving this issue, that is not every possibility of serious physical harm or of any physical harm which will justify a finding that a person suffering from mental illness falls within the terms of s9(1). Mr Reuben stressed, on several occasions at least, the necessity for the court to be satisfied, with the appropriate degree of satisfaction, of the existence of "reasonable grounds" in terms of the subsection and to be satisfied that the harm involved is a serious harm. He suggested, for example, and I take only one example, that what was said by the plaintiff might have been hypothetical, that it might have been something less than a serious threat, or that it might have been merely a passing thought. I do not think that these submissions should be accepted. The learned judge rejected them and I do not think we should go behind his findings. But, having regard to what was said and what was drawn into evidence from Dr Berenson and Dr Lammi in particular, I think that the conclusion to which the judge came was the right one. I come, then, to the third issue which has been referred to, namely, whether, within the terms of s285, there is care of a less restrictive kind appropriate and reasonably available for the plaintiff or, more accurately, whether the medical superintendent, the defendant, has proved, on the balance of probabilities, that there is not such. The only possible regimes of care that were suggested here were of the nature of community treatment orders or community care orders. The court has been informed that these matters were not referred to, or referred to at any significant length, before the trial judge and the trial judge appears, in his judgment, to have dealt with them very briefly. 8 UNREPORTED JUDGMENTS However that be, I do not think that regimes of care of that kind would have been appropriate in the present case. If, in fact, the plaintiff had, as the judge found, threatened harm to Professor Bradstock or his family in the way that was suggested, in my opinion care by way of community treatment order or community care order would not have been sufficient: it would not have constituted an appropriate or reasonably available alternative. I do not think it would have been appropriate to deal merely in that way with a person such as the plaintiff was shown to be. The result, in my opinion, is that the appeal should be dismissed. This result cannot, of course, satisfy the plaintiff and I am conscious that it will not. But judges of this Court can only act upon the evidence that is put before them. The judge considered the evidence with considerable care and, as I have said, detailed the thrust of it in a long and careful judgment. In the end I am not satisfied that the judge was wrong. I think that, considered as on a rehearing, his conclusion was right. In these circumstances, there is no other course available to this Court but to dismiss the appeal with costs. I would propose that order. Meagher JA I agree but I, too, would be happier if his Honour had applied the provisions of s285. Sheller JA In this case, in a careful judgment, Brownie J isolated the issues. In my opinion he applied the proper principles in deciding them. There was ample evidence to support his findings of fact and I agree that the alternative orders that were proposed, by way of community treatment orders or community counselling orders, were not appropriate to this case. Accordingly, for the reasons that have been given by the presiding judge, I agree that the appeal should be dismissed with costs. Mahoney JA: The order of the Court is, therefore, that the appeal is dismissed with costs. COUNSEL: Appellant: SY REUBEN Respondent: MI BOZIC SOLICITORS: Appellant: MILNE BERRY AND BERGER Respondent: KAREN J CRAWSHAW, HEALTH DEPARTMENT OF NSW