Re J [2011] NSWSC 1201

Supreme Court New South Wales

Medium Neutral Citation: Re J [2011] NSWSC 1201 Hearing dates: Wednesday, 14 September 2011 Decision date: 15 September 2011 Jurisdiction: Equity Division - Protective List Before: White J Decision: Refer to para [17] of judgment. Catchwords: MENTAL HEALTH - involuntary detention at mental health facility - appeal from Mental Health Review Tribunal - question as to whether plaintiff instructed solicitors appearing on his behalf to commence proceedings - where plaintiff is a person under legal incapacity by virtue of being involuntary patient under Mental Health Act 2007 - requirement that plaintiff commence and carry on proceedings by a tutor dispensed with - necessary to be satisfied that plaintiff wished for proceedings to be commenced on his behalf - order pursuant to s 166, Mental Health Act 2007 or otherwise in inherent jurisdiction of the Court to require the plaintiff to be brought before the Court for examination Legislation Cited: Civil Procedure Act 2005 Mental Health Act 2007 Category: Principal judgment Parties: J (Plaintiff) South Eastern Sydney Local Area Health Service (1st Defendant) Mental Health Review Tribunal (2nd Defendant) Representation: J Bartos (Plaintiff) G Shirm (1st Defendant) David Begg & Associates (Plaintiff) Crown Solicitors Office (Defendant) File Number(s): 2011/291580

Judgment 1HIS HONOUR: The proceedings concern the involuntary detention of the plaintiff in a mental health facility known as the Kiloh Centre at the Prince of Wales Hospital. 2The plaintiff is a 62 year-old man. In May of this year he was diagnosed with terminal pancreatic cancer. The prognosis was that he had six months to live. 3The plaintiff suffers from a mental illness, namely, mania. There is evidence that this affects his ability to make decisions about his money, but no order has been made declaring him incapable of managing his affairs and appointing a financial manager. 4The plaintiff has recently received a $700,000 pay-out of his life insurance and superannuation. His wife and doctors consider that he is at risk of dissipating his money unwisely, and that his mental illness affects his ability to make judgments about the expenditure of his money. 5Proceedings were commenced on the plaintiff's behalf by a solicitor retained by the plaintiff on 9 September 2011. 6The plaintiff had given instructions to the solicitor, Ms Edita Berntsen, to act for him to seek to secure his release from involuntary detention. She prepared the principal affidavit in support of the summons. 7Attempts were been made to arrange for an independent psychiatric assessment of the plaintiff. They were unsuccessful. 8On 8 September 2011 the plaintiff signed a document addressed " To whom it may concern " advising that he did not wish to engage Ms Berntsen in reference to matters pertaining to his hospitalisation at the facility. By the same document the plaintiff stated that he did not need an extra psychiatrist for his examination or assessment. 9However, there was evidence from Ms Berntsen that she was told by the plaintiff to ignore the letter. According to her, the plaintiff said, in substance, that the letter was written to comply with the wishes of his wife and doctors, and in the belief or hope that compliance with their wishes would be the surest way of his obtaining release from involuntary detention. 10The plaintiff is a person under legal incapacity within the meaning of s 3 of the Civil Procedure Act 2005, being an involuntary patient within the meaning of the Mental Health Act 2007. 11By the summons he sought to appeal from a determination of the Mental Health Review Tribunal of 1 September 2011, the effect of which was to order that he remain under involuntary detention until 30 September 2011, unless earlier released. 12As the issue raised by the summons commencing the appeal from the Tribunal's orders is the legality of the plaintiff's detention and his status as an involuntary patient under the Mental Health Act , and as there is evidence that the plaintiff has, in fact, instructed his solicitor to make this application, notwithstanding his letter of instructions to the contrary, I considered that it was necessary and appropriate to dispense with the requirement of r 7.14 (Uniform Civil Procedure Rules 2005), so as to permit him to commence and carry on the proceedings without a tutor. 13I have heard argument on the issues raised in this litigation. The central issue in the case is whether the plaintiff's continued involuntary detention can be justified on the ground that he is at risk of serious financial harm in circumstances in which a financial management order could be made if he were incapable of managing his affairs, and where the only application for a financial management order that has been made, namely, an application made by a social worker associated with the hospital, has apparently been withdrawn. 14There is evidence on oath that provides reason to suspect that the provision of care in the form of protection against the apprehended serious harm, being serious financial harm, could be provided by way of care of less a restrictive kind, that would be appropriate and available for the plaintiff. 15There is at least a serious question as to whether the Tribunal addressed appropriately the issues that it had to determine arising under s 35 and s 44 of the Mental Health Act . 16It is said for the first defendant, the South Eastern Sydney Local Health District, that before proceeding to determine questions which were argued before me yesterday I should be satisfied as to whether or not (as the plaintiff's lawyers contend) the plaintiff does wish this proceeding to be brought on his behalf. 17I agree with that contention. The appropriate way to proceed is pursuant to s 166 of the Mental Health Act, or otherwise in the inherent jurisdiction of the Court, to require the plaintiff to be brought before the Court for examination by me. 18I propose to make that order. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 October 2011