A (by his tutor Brett Collins) v Mental Health Review Tribunal (No 3) [2014] NSWSC 30

Supreme Court New South Wales

Medium Neutral Citation: A (by his tutor Brett Collins) v Mental Health Review Tribunal (No 3) [2014] NSWSC 30 Hearing dates: 12 December 2013 Decision date: 17 January 2014 Jurisdiction: Equity Division Before: Lindsay J Decision: Proceedings be dismissed Catchwords: MENTAL HEALTH - Forensic Patient - Mental Health Review Tribunal - Review of the case of a forensic patient - Application for leave to appeal from Tribunal determination - Application limited to question of law - Detention, care and treatment of forensic patient in mental health facility - Forced medication by depot injection. Legislation Cited: Mental Health Act 2007 NSW Mental Health (Forensic Provisions) Act 1990 NSW Supreme Court Act 1970 NSW Cases Cited: A by his Tutor Brett Anthony Collins v Mental Health Review Tribunal and Anor [2010] NSWSC 1363 A v Mental Health Review Tribunal [2012] NSWSC 293 Category: Principal judgment Parties: A (by his tutor Brett Collins) (Plaintiff) Mental Health Review Tribunal (First defendant) Justice Health & Forensic Mental Health Network (Second defendant) Representation: Counsel: S Fraser for the plaintiff P Herzfeld for the defendants Solicitors: Plaintiff: O'Briens Solicitors Defendant: Crown Solicitors File Number(s): 2013/00288415

Judgment 1On 12 December 2013 I heard, concurrently, an application for leave to appeal and, contingent on a grant of leave, an appeal from a determination made by the Mental Health Review Tribunal after a review conducted pursuant to ss 46-47 of the Mental Health (Forensic Provisions) Act 1990 NSW. 2The plaintiff/application/appellant is a forensic patient, here identified by the pseudonym "A", whose background is related in earlier judgments of the Court: A by his Tutor Brett Anthony Collins v Mental Health Review Tribunal and Anor [2010] NSWSC 1363 (26 November 2010); and A v Mental Health Review Tribunal [2012] NSWSC 293 (4 August 2011). To distinguish this judgment from those, this judgment will be designated "No. 3". 3The first defendant, the Mental Health Review Tribunal, filed a submitting appearance. The second defendant, Justice Health, has served as the plaintiff's contradictor. 4The determination of the Tribunal under challenge was made on 12 September 2013, and is supported by Reasons for Decision dated 1 October 2013. 5The determination made by the Tribunal was that there should be no variation to the plaintiff's care, treatment and detention notwithstanding an application made to the Tribunal, by him, that it order that the administration of medication to him against his will be prohibited. That order was sought, in particular, in relation to the administration of medication by depot injection. 6The plaintiff challenges the Tribunal's determination by proceedings instituted under s77A(1) of the Mental Health (Forensic Provisions) Act. He seeks leave to appeal on a question of law. 7In substance, the question sought to be raised by the plaintiff under s77A is whether the Tribunal erred in acting upon a principle that "only in exceptional cases [of which this was not considered by the Tribunal to be one] would [it] step in and make orders as to the medication to be given or not given to a patient who is under the every-day care of a competent treating team [of doctors authorised by Justice Health]. 8As elaborated in submissions, the plaintiff contends that, in undertaking a "review of the case" of the plaintiff for the purpose of s46(1) of the Mental Health (Forensic Provisions) Act as a preliminary to a consideration of whether to make an order under s47(1) of the Act: (a)the Tribunal acted upon a presumption that it should make no order departing from, or interfering with, arrangements for the care or treatment of a forensic patient devised by treating doctors authorised by Justice Health; and (b)the Tribunal thereby: (i)mis-stated the test it was required, by ss 46-47 of the Mental Health (Forensic Provisions) Act, read with ss 40 and 74 of the Act, to apply upon a consideration of the plaintiff's application; (ii)impermissibly delegated to the plaintiff's treating doctors decision-making about the plaintiff's continued detention, care or treatment; and (iii)adopted a test that was more restrictive of the plaintiff's rights than justified by any provision of the Act. 9Justice Health contends that: first, on a fair reading of its Reasons for Decision, the Tribunal cannot be said, in fact, to have acted on any presumption such as that alleged; secondly, the Tribunal did not, in any respect, err in law; and, thirdly, the weight to be given by Tribunal to medical evidence before it, including evidence of a patient's treating doctors, is a matter for the Tribunal. 10Justice Health submits that the Court should order that the plaintiff be granted leave to appeal, limited to the question of law here identified, but the appeal should be dismissed. 11With the consent of both sides of the record, the plaintiff's application for leave to appeal and any appeal consequent upon a grant of leave were heard concurrently. 12The parties agreed that, if it were to conclude that the Tribunal erred in law, the Court should order that the Tribunal's determination be set aside and that the proceedings be remitted to the Tribunal for determination according to law. 13The parties also agreed that, whatever orders might be made in disposition of the proceedings, no orders as to costs should be made. 14A degree of urgency attaches to the determination of the proceedings, not only because the nature of the subject matter, but because the Tribunal is obliged by s46 of the Mental Health (Forensic Provisions) Act, to undertake a further, regular, periodic review of the plaintiff's case in March 2014. 15As earlier foreshadowed to the parties, I propose, today, to announce the outcome of the proceedings and, in delivering this preliminary statement of my reasons for disposition of them, to reserve for a future occasion publication of my full reasons for judgment. 16I currently anticipate that those full reasons will be published near commencement of the new court term on 3 February 2014. The Court will notify the parties of the precise date in due course. 17The determination under challenge in these proceedings was made by the Tribunal after the conduct of a hearing of the plaintiff's application for a prohibition order. The plaintiff had legal representation. Evidence was adduced in support of, and in opposition to, the application. The Tribunal made its determination by reference to the evidence before it. 18Consequently, by the combined operation of s 77A(1) of the Mental Health (Forensic Provisions) Act and s 75A of the Supreme Court Act 1970 NSW, any appeal by the plaintiff to the Court, by leave, takes the form of a rehearing in which it is incumbent upon the Court, as a precondition to appellate intervention, to be satisfied that the determination of the Tribunal is materially affected by appellable error. 19This is not a case in which the Court, having received evidence in addition to that before the Tribunal, is able or required to make a fresh determination. 20The plaintiff's application to the Court is limited to a question of law. He has not applied for leave to appeal on any other question. 21There is, accordingly, no challenge to the findings of fact made by the Tribunal in support of its determination, in effect, to dismiss the plaintiff's application for a prohibition order. 22In making its findings of fact it the Tribunal preferred the evidence of the plaintiff's treating psychiatrist over the evidence of the psychiatrist retained by the plaintiff's solicitors for the purpose of the application for a prohibition order. 23It was open to the Tribunal's to do this, and it published its reasons for doing so in its Reasons for Decision. 24The Tribunal's findings of fact, not under challenge in these proceedings, provide the foundation upon which its determination of the plaintiff's application was made. 25The following, edited extracts from the Tribunal's Reasons for Decision encapsulate those findings: "In summary [the plaintiff] has a moderate loading of historical risk factors and a high loading of dynamic risk factors for violence. One outcome of concern is the recurrence of arson or some other dangerous behaviour to further draw attention to his still intact delusional system. He actively resists treatment and his treating team. His poor insight, ongoing symptoms, hostile attitudes to staff and the high likelihood of noncompliance are highly problematic, and make deterioration in a less restrictive environment likely. He has not accepted the role mental illness has played in the index offence [that led to his confinement as a forensic patient] in any way and therefore cannot take appropriate responsibility for the index offence and would not take reasonable steps to ensure that such an action would not occur in the future. His ongoing persecutory beliefs provide a continuing motivation to engage in similar behaviour in the future and demonstrates this by ongoing harassment of the treating team by vexatious complaints. [The plaintiff's treating psychiatrist] said that there has been a decline in [the plaintiff's] mental health since cessation of depot medication. This has increased his hostility and increases the risk of aggressive behaviour or making threats of a similar nature to that which has occurred in the past. The treating team proposes recommencement of depot medication for the following reasons: · [The plaintiff's] clinical condition improved when depot Zuclopenthixol was commenced in 2009 and then deteriorated following its cessation in 2012. · [The plaintiff] demonstrates such poor insight and hostile attitudes to treatment that it is likely that he is not fully compliant with oral antipsychotic treatment as prescribed at present. · It is highly unlikely that [the plaintiff] would take medication if not closely supervised, therefore being on a long acting injectable medication would be a prerequisite for any progression beyond the Forensic Hospital to an environment where he might be granted leave. · Allowing [the plaintiff's] mental state to continue to deteriorate places staff at risk of harm from threats or aggressive behaviour (for example in 2009 he filled a urine bottle and threatened to throw it at staff). · In his current state any negotiation for treatment or monitoring of [the plaintiff's] progress is impossible as he refuses interviews with his treating team. Regarding the choice of depot medication as [the plaintiff] refuses to enter into any discussion on this issue, refuses metabolic monitoring for side effects and threatens to stop his cardiac medication, the treating team are of the opinion that depot Zuclopenthixol is the safer alternative as it has less potential for metabolic side effects. Furthermore Zuclopenthixol has already been demonstrated to have greater efficacy as compared to the current medication regime. [The plaintiff's treating psychiatrist] said that [the plaintiff] had progressed through the hospital to the Elouera Ward and was undertaking activities prior to his refusal of depot medication. Since that time he has regressed and no longer communicates with the treating team.... It was the view of the Tribunal that because of [the plaintiff's] attitude he has not been receiving the appropriate medication and his condition has regressed to the stage which has given rise to the concerns expressed by [the plaintiff's treating psychiatrist] in his report and in evidence to the Tribunal. The Tribunal was assisted by the oral and written evidence and the submissions made on behalf of [the plaintiff]. However, it was of the view that in all the circumstances [the plaintiff's] treatment is one essentially for the treating team. It was the Tribunal's view that it would only be in an exceptional case that it would make orders with respect to a patient's medication. The Tribunal did not consider this to be an exceptional case. Accordingly, the [plaintiff's] application [for an order prohibiting the forced administration of medicine by depot injection] was refused." 26The observations made in the second and third sentences of the last extracted paragraph lie at the heart of the plaintiff's challenge to the Tribunal's determination to dismiss his application for a prohibition order. 27These observations must be read in the context of the Tribunal's Reasons for Decision as a whole, bearing in mind that they are responsive to a proposal for the plaintiff's treatment advanced in the evidence given by the psychiatrist retained by his solicitors. 28The Tribunal rejected that proposal, in part, because, in the Tribunal's assessment, that witness did not (despite its having raised the question with the plaintiff's solicitor) address how, under the proposal, medication would be administered to the plaintiff if he were to continue his refusal to accept treatment. 29The penultimate paragraph of the extract illustrates, in the light of the Tribunal's findings of fact, that it did not delegate its decision-making functions to anybody, but formed its own view. 30If leave to appeal were to be granted, the consequent appeal would be dismissed. I am not satisfied that the Tribunal erred in any of the ways suggested by the plaintiff. 31In any event, I do not propose to order that the plaintiff be granted leave to appeal. When the Tribunal's Reasons for Decision are read as a whole, it cannot be said to have committed an error of principle. Furthermore, no injustice is a caused to the plaintiff by a refusal of leave to appeal in the circumstances of this case. It remains open to him to accept administration of medicine by means other than the injections to which he objects. 32It is not necessary, in this preliminary statement of reasons, to explore the nature of a s 46 review or the purposive character of the powers exercised by the Tribunal in the conduct of the review. That topic can be left until later. It includes, but is not limited to, a consideration of ss 40 and 74 of the Mental Health (Forensic Provisions) Act and s 68 of the Mental Health Act 2007 NSW. 33It is sufficient for present purposes to record that, upon my review of the Tribunal's Reasons for Decision, and the processes leading to its determination, the Tribunal appears to have acted within the scope of the purposes that govern an exercise of its powers under ss 46-47, and to have acted consistently with the general informing idea underlying its protective powers: That they be exercised for the benefit, and in the best interests, of the person (in this case, the plaintiff) in need of protection. 34In these circumstances, I order that the proceedings be dismissed. 35That order for dismissal carries the consequence that the interlocutory injunction granted to restrain administration of medicine to the plaintiff via depot injection, pending determination of these proceedings, is discharged. 36I will publish my foreshadowed, full reasons for judgment at the earliest available opportunity.