Z v Mental Health Review Tribunal [2015] NSWSC 1425

Supreme Court New South Wales

Medium Neutral Citation: Z v Mental Health Review Tribunal [2015] NSWSC 1425 Hearing dates: 24 and 28 September 2015 Date of orders: 28 September 2015 Decision date: 28 September 2015 Before: Young AJA Decision: Appeal dismissed Catchwords: MENTAL HEALTH – community treatment order – how far order dependent on mental health of affected person at the date of trial Legislation Cited: Civil Procedure Act 2005 (NSW) Mental Health Act 2007 (NSW) Cases Cited: Burnett v Mental Health Tribunal [1997] ACTSC 94 Harry v Mental Health Review Tribunal (1994) 33 NSWLR 315 McD v McD [1983] 3 NSWLR 81 Re S-C [1996] 1 All ER 532 S v South Eastern Sydney & Illawarra Area Health Service [2010] NSWSC 178 Category: Principal judgment Parties: Z (Plaintiff) Mental Health Review Tribunal (1st Defendant) Attorney-General of New South Wales (2nd Defendant) Northern Sydney Local Health District (3rd Defendant) Representation: Counsel: Z (Plaintiff in person) Ms K Richardson (1st, 2nd, 3rd Defendants)

Solicitors: Crown Solicitor for NSW (1st, 2nd, 3rd Defendants) File Number(s): 2014/348589 Publication restriction: Nil

Judgment 1. This is an appeal under Section 163 of the Mental Health Act 2007 (NSW) by a person who was once found to be mentally ill and later ordered by a Mental Health Review Tribunal to comply with a community treatment order. I will refer to that person either as 'Z' (though there is no 'Z' in any of that person's names) or 'the appellant'. I heard the appeal last Thursday, 24 September 2015, and again this morning. The appellant appeared in person and Ms K Richardson, of counsel, appeared for the active respondents, the Attorney-General and the Northern Sydney Local Health District. Under Section 164 of the Mental Health Act, I may sit with two assessors. No-one has suggested that I should take advantage of this provision, and I do not. 2. Section 163 of the Act is as follows: (1) A person may appeal to the Court against: (a) a determination of the Tribunal made with respect to the person... (2) An appeal is to be made subject to and in accordance with the rules of the Court. 1. Z's summons was filed on 26 November 2014. It was amended on 24 June 2015. The original summons set up an appeal against determinations of the Mental Health Review Tribunal made in August 2014 (that Z was a mentally ill person and must be further detained), 16 September 2014 and May 2015. These determinations included a decision that Z was mentally ill. The amended summons added the decision of the Mental Health Review Tribunal of 3 June 2015, which subjected Z to a community treatment order. 2. There are six technical or legal questions I need to note and, in some cases, address; namely: (1) As the appellant has been assessed by a tribunal as being mentally ill and it is still claimed that the appellant is so disabled, does the appellant need a tutor or guardian to mount this appeal? (2) Can the summons be amended to add an appeal against a decision that was made subsequently to the issue of the summons? (3) Has the Court jurisdiction on an appeal to deal with decisions and orders of the Tribunal which have become spent? (4) Am I to determine whether, as at today's date or at 3 June 2015, the relevant facts and righteousness of the decision, that is, today or when the Tribunal made its current determination? (5) How does the definition of 'mental illness' in Section 4 of the Act fit in where the patient is ill but the treatment means that so long as medication is taken , the patient will be able to lead a relatively normal life? (6) Am I bound by the rules of evidence? 1. I will briefly deal with these questions, then look at the facts and merits of the case. (1) This involves whether the Mental Health Act overrides the rules of Court in respect of the necessity for a tutor. The ordinary position is that when the legislature grants a right of appeal, it intends to have the appeal dealt with in accordance with the ordinary procedures of the court. That this was the legislature's intention in the present case is reinforced by the reference to Court rules in Section 163(2). However, as I will consider in more detail later, the Court approaches the questions which affect a person's liberty in a very liberal manner. Because of this concern, it is policy to enable all legitimate challenges to be made by a person who is put in the position of Z. If a tutor were needed (bearing in mind the rule that the tutor, subject to a right of indemnity, is personally liable for costs), it may well be difficult for the appellant to find a tutor and there is no guarantee that the person appointed will be sympathetic to Z's cause. These factors operate to diminish the chances of an appellant being able to employ his or her statutory right. On the other hand, it is useless, where a person is obviously mad, to waste the Court's time on an appeal. The point was not argued. My view is that a tutor is necessary, but that the judge may dispense with the appointment in a proper case. In the instant case, at the directions hearing, Z appeared well able to conduct the case in an intelligent manner and this proved to be correct. I thus dispense with the need to appoint a tutor. (2) Technically, a new summons should have been issued for the fresh challenge. However, as no-one has objected to the amendment, applying the overriding principle in Section 56 of the Civil Procedure Act 2005 (NSW), I will just ignore the point. (3) I would also like to ignore this point as its determination will not affect the outcome of this case, which has now become one which must be decided as a matter of some urgency. However, Ms Richardson is most insistent that it needs to be decided. However, it is a point which could be decided either way, and it will be necessary to consider analogous legal situations, such as the appeal from the Chief Judge in Equity to the Full Court in pre 1972 days. Time did not permit Ms Richardson to put a full argument and the unrepresented plaintiff, even though Z holds a Juris Doctor degree, was not able to do so. It would be unsafe for me to decide the point now if it is to be of importance, especially as a decision could have no bearing on the result of the case. (4) The same problems occur as with question 3. It would be unwise to make a decision in the circumstances if it is an important point. Again, the result of this appeal cannot be affected by this point. (5) This question must be considered along with other matters to be considered on the merits of the appeal. (6) This point also is not argued. I consider that, as with matters generally in the protective list, I am not bound by the strict rules of evidence, but that has little relevance to this case. 1. I now turn to the facts and to the merits of the appeal. The court book contains over 450 pages. I have read the lot. The bulk of material is reports from psychiatric registrars, nurses, specialist psychiatrists, occupational therapists and other health professionals. Z has criticised the accuracy of some of these records as containing miscommunications from Z and observations by unqualified or semi-qualified persons, which are then repeated over and over and over again by others. Z says that the present case is worse than the standard because observations which may well be reliable, or statements from Z's family which Z disputes, are just accepted by a series of doctors and nurses and social workers from a variety of hospitals, without any investigation of the underlying truth. Z points to the fact that in other cases where everything has happened within the same hospital, there might be a little more value in accepting statements than there would be in this case, where so many different people are involved and so many different people just regurgitate statements made by others. 2. Judges are used to dealing with hospital records. Indeed, it is really the only way of obtaining an overall picture of a patient's condition. When reading those records, judges take into account that there are untested statements of alleged facts by various people, some of who might be malicious towards the porosities. There are possible misinterpretations of what is said. There are records made by people who have misunderstandings. However, although one takes into account all of this, when one sees consistently very similar observations by a series of people who could not be colluding and a logical progression of symptoms, one can see important evidence which is most likely to be the truth. The court book contains histories from the Prince of Wales, Royal North Shore and Hornsby Hospitals. 3. The records show that although Z received some attention for mental problems in at least 2012, the first significant occasion when the appellant came under notice was when the police noticed Z at night in a car in a backstreet in Bondi Junction with the windows taped up. I will not deal with the circumstances that the police allege, but whatever happened, Z was taken to St Vincent's Hospital on 3 July 2014 by police purporting to act under Section 22 of the Mental Health Act. Z was assessed as being mentally ill and detained at that hospital. 4. I will not embarrass Z by dealing with Z's detention in hospitals and the incidents between August 2014 and April 2015. However, in Z's second affidavit, which was not read in the proceedings, but which Ms Richardson used as a basis for a considerable amount of Z's cross-examination, that affidavit does show some disordered thinking, to say the very least. However, lots of people have some areas of thought where they are outside society's norms but are not mentally ill. One cannot say a person is mentally ill merely because he or she holds racist views or is abnormally sensitive to sexist insults. Once society stops recognising this and declares those who hold minority views to be legally insane, freedom stops too, and I recognise that. 5. The appellant challenges some of the incidents in the records. In particular, Z was brought to Royal North Shore Hospital in April 2015. Z says that Z was staying with a cousin and this cousin's daughter had a rowdy 18th birthday party. Z noticed that Z's car was scratched and accused the daughter or the daughter's friends. Z retired to Z's room. Shortly afterwards, the police and ambulance officers were called and took Z to hospital. Z said this was the scheming of the cousin to get Z out of the house, and the hospital authorities just accepted as fact what Z's cousin and associates were saying without question, and this was the basis of concluding that Z was mentally ill. However, even if this view were correct, there were numerous other incidents in respect of which Z had not put any reasonable explanation. 6. After the April 2015 incident, Z was transferred to Hornsby Hospital Mental Health Intensive Care Unit. There Z was assessed and treated by a number of doctors, including Drs Michael Calthorpe and Dominic Paul. Z was later transferred to the acute ward where Z came under the principal care of Dr Ravinda Chandrasekera. The records show – and also the affidavit and oral evidence of Drs Chandrasekera and Law – that the appellant is suffering from chronic schizophrenia. They reported this to the Tribunal when it sat on 3 June 2015. In his affidavit, Dr Chandrasekera said that schizophrenia is a chronic mental illness which is characterised by periods of relapse. The treatment that Z was given under his care, he says, was effective and the symptoms were diminished. However, Z did not have a good history of taking medication, a point with which Z agrees, and unless Z was subject to a controlled treatment regime, Z would relapse. 7. Z cross-examined Dr Chandrasekera and his registrar, Dr Law. Z put to them that their views were based on the material in the hospital records which were to some extent put together by unqualified or semi-qualified persons who may well have misunderstood information given to them. Dr Chandrasekera answered that he had one-on-one dealings with Z when Z was at Hornsby Hospital over a significant period and relied on his diagnosis made then, as well as on the records. Dr Law said much the same. 8. Z produced very little medical evidence. Z tendered a letter from a Western Australian psychiatrist which Z had consulted during a workers compensation case. This report from the doctor showed that he thought that Z was only suffering from mood swings in 2013. This was put to Dr Chandrasekera. He acknowledged that that could well have been the diagnosis in 2013, but said that as more and more details emerged, the proper diagnosis was schizophrenia. Apart from that Western Australian doctor, all the medical evidence points in one direction and that is, that the appellant is suffering from chronic schizophrenia. 9. In McD v McD [1983] 3 NSWLR 81, Powell J held, that under the law that had existed prior to the 1990 Mental Health Act (which is relatively the same as the 2007 Act for current purposes), a person suffering from schizophrenia was suffering from a mental illness. I need to consider whether that is still the position under the 2007 Act. 10. The appeal is to reject the decision made by the Tribunal on 3 June 2015 that the minimum order to be made for Z's proper care and safety was a community treatment order. I should note at this point that although a community treatment order was made to last for six months, it is competent for any authorised hospital to vary the treatment noted in the order if it is considered that the alteration will benefit the patient. 11. Ms Richardson accepts that the onus of upholding the decision is on her clients. Z says that the effect of Section 164 is that the Court makes a new decision. Z repeated that submission a number of times. However, as I endeavoured to put to Z during the hearing, the vital question is: what is this new decision that the Court is to make? Is it a decision as at today's date, or is it that the Tribunal was justified in making its decision, even taking into account material that has emerged since the decision was made? Ms Richardson cited to me the decision of Brereton J in S v South Eastern Sydney & Illawarra Area Health Service [2010] NSWSC 178. In that case his Honour was not satisfied that it was appropriate to make a community treatment order, so he ordered that the Tribunal's decision to order that treatment be set aside and that the application for such order be dismissed. I cannot really see how that decision helps me in the present problem. 12. In any event, it was helpful that there was no time to give a decision after the submissions apparently closed at about 4.15pm last Thursday. I was then uncomfortable about a number of Ms Richardson's submissions, and those of the appellant were not really able to assist me. Work in chambers since Thursday, and the fact that Ms Richardson has now withdrawn some of her submissions and replaced them with quite different ones, have made some matters clearer in my mind, though other problems have now raised their head for the first time. I would have liked to have reserved my decision and studied the transcript of today's argument and read more. However, Z made it clear that Z would prefer a quick decision to one that was detailed and considered. Accordingly, though with some trepidation, I am now giving that decision. 13. I was troubled with the definition of 'mental illness' in Section 4 of the Act in a case like the present, where the patient has a chronic disease but the medication is controlling the symptoms, so that at the date of hearing the patient does not show the symptoms mentioned in the legislation. Section 4 of the Act defines mental illness thus: 'Mental illness' means a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one of more of the following symptoms: (a) delusions, (b) hallucinations, (c) serious disorder of thought form, (d) a severe disturbance of mood, (e) sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a)-(d). 1. Virtually the same provision occurred in the 1990 Act as Schedule 1 to that Act. I was disturbed because the definition has a two-pronged effect. The first prong is that the condition must seriously impair mental functioning. Then there is another part of the definition, starting with the word 'and', to show that both a serious impairment of mental functioning and the presence in the person of one or more of those symptoms is required before someone can be found to be mentally ill. The disturbance is that the appellant's condition as of today does not appear to be currently showing any of the prescribed symptoms, and unless both parts of the definition are fulfilled, there is no mental illness. However, on consideration, I thought that the reference in the definition to the series of symptoms might be a reference, not to the sufferer but to the medical condition - that is, the definition looks to a condition which is characterised by the presence of the prescribed symptoms - and on that construction schizophrenia falls within the definition. However, in Burnett v Mental Health Tribunal [1997] ACTSC 94, Crispin J said that the words of the corresponding definition in the ACT legislation 'require that the condition be characterised by "the presence in the person"' of any of the symptoms' was very significant; that is, that I was wrong to think that the symptoms were qualifying the illness and not the person, because one must find, by the presence in the person of the symptoms, that Z has a mental illness. Now, there is no evidence that as at today, Z is suffering any of the prescribed symptoms and indeed, no evidence that Z was so suffering on 3 June 2015. 2. Whether Z intended to meet this point or not, Ms Richardson this morning referred to the decision of the Court of Appeal in Harry v Mental Health Review Tribunal (1994) 33 NSWLR 315. Unfortunately, I had not considered this over the weekend and it is perhaps unfortunate that I was not told about it last week, because it is right in point. The headnote says that the Tribunal is not, as a condition precedent to the making of a community treatment order, required to find that the person affected is mentally ill. That is an accurate summary of the conclusions reached by Kirby P, Mahoney and Clarke JJA. 3. I am troubled by some of the consequences of that decision. However, it is a decision of the Court of Appeal which is binding on me and indeed has been twice referred to in subsequent decisions of the Court of Appeal without qualification. My troubles come in two respects. First, it should be noted that Harry is a decision on the 1990 Act. However, apart from the new Section 53(4) of the 2007 Act, the text is the same. However, Section 13 of the 2007 Act (Section 8 of the 1990 Act was the same) says, so far as relevant: A person is a mentally ill person for the purpose of determining whether the person should be subject to a community treatment order if, and only if, the person satisfies the relevant criteria set out in this Part. 1. 'This Part' is Part 1 of the Act, namely, sub-sections 12 to 16, whereas sub-sections 51 and 53 are in Part 4. 2. Ms Richardson says that there are no criteria set out in Part 1, so the decision could have no application: a bold submission. One must try and find the criteria, if at all possible, and I suppose the only real answer is the matters that are set out in sub-sections 12 and 16. However, the main problem is that a community treatment order is an order that makes treatment compulsory. 'Treatment' is not a self-contained concept. A person receives treatment for a condition. What then is the condition for which treatment is required in this case? The answer must be it is the treatment for chronic schizophrenia, a condition which can be suffered without detrimental effect if it is treated. 3. Thus, so long as there has been a diagnosis of chronic schizophrenia and medical evidence that, unless treated, the condition will no longer lie dormant, and there is some evidence to suggest that a patient will not voluntarily take the medicine, a community treatment order may be made. Thus, in Harry, after Kirby P and Mahoney JA had recited and seriously considered the public policy questions that persons are not to be deprived of their liberty except for a very limited class of reasons, they found that on the true construction of the legislation it is sufficient for a Tribunal to make a community treatment order without determining whether the affected person is still mentally ill if the person has a chronic mental illness but medication has prevented the symptoms from reappearing and continued treatment is needed to continue that scenario. 4. By way of slight diversion, the matters that I have mentioned were of the reluctance of courts to decline to interfere with orders about mental health, except after allowing the person affected the most liberal access to courts and material, is dealt with in the concern of both Kirby P and Mahoney JA. Mahoney JA said at page 334: I am conscious of the possibility of abuse. Treatment is not to be forced on a patient against her will merely because it will be good for her, even if well-meaning and caring professionals think it is so. But there comes a time when it should be given, when if treatment is not given, there will be unacceptable damage to her. It is the function of the procedures provided by the legislation to safeguard against abuse. But the possibility of abuse should not lead to the legislation being so restrictively construed that where treatment is needed, it cannot be given. The safeguard against abuse in the present legislation is the provision of procedures, of tribunals and, if necessary, of court procedures for ensuring that the treatment will not be administered where, as far as examination of her condition can ensure, it is not necessary or warranted. The court should give a beneficial and purposive construction to them; it should not give them a restricted construction merely because they may infringe her personal liberty. 1. Kirby P said at page 322: In our form of society an individual is ordinarily entitled to go about his or her affairs without intrusion by the State or its organs, (such as the Tribunal), or by other individuals (such as doctors), however well the latter may be motivated, to justify intrusion into the ordinary activities of the individual and particularly in a matter so intrusive to the bodily integrity of that individual as to enforce a regime of medical treatment, clear authority of the law is needed. 1. Later at the same page he said: Many reports of official bodies in Australia and overseas have demonstrated the way in which mental health law can sometimes be used to control the behaviour of individuals merely to relieve family, neighbours and acquaintances from their embarrassment rather than to learn to assist individuals primarily concerned to be themselves. It is not necessary to go to the mental health laws of Hitler's Germany or Stalin's Russia to be reminded of the potential for misuse or excessive use of compulsory mental health powers. The courts must be vigilant against such a misuse or excessive use. 1. I should also add in this connection what Sir Thomas Bingham, MR, with whom Neill and Hirst LJJ agreed in Re S-C [1996] 1 All ER 532 at [532]-[535] had to say in similar terms about the English legislation. However, it is significant that even though those judges had at the forefront of their mind the care that must be taken not to put too much power in the hands of mental health authorities, they still considered that on the true construction of the Act not only was personal liberty to be interfered with in cases where a person was mentally ill, but also in the case where he or she had been mentally ill, might relapse into mental illness unless treated and was reluctant to take treatment voluntarily. As I say, that is a decision of the Court of Appeal and the Court of Appeal's decisions are binding on me. 2. Ms Richardson took me to Part 4 which is sub-section 51 onwards. Section 51(5) provides: A Community Treatment Order may be made in the following circumstances, may replace an existing order: (a) following a mental health inquiry (b) on a review of a patient by the Tribunal, (c) on an application otherwise being made to the Tribunal. 1. Here Ms Richardson says this was an application made by Dr Law and came within Section 5(c) not 5(a). Section 53(3) and (4) provides: (3) The Tribunal may make a Community Treatment Order for an affected person if the Tribunal determines that: (a) no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person and that the affected person would benefit from the order as the least restrictive alternative consistent with safe and effective care, and (b) a declared mental health facility has an appropriate treatment plan for the affected person and is capable of implementing it, and (c) if the affected person has been previously diagnosed as suffering from a mental illness, the affected person has a previous history of refusing to accept appropriate treatment. (d) the Tribunal may not make a Community Treatment Order at a mental health inquiry unless the Tribunal is of the opinion that the person is a mentally ill person. 1. I accept Ms Richardson's submission that it is only in respect of a community treatment order sought under Section 51(5)(a) that it is necessary to prove that at the time of the order the affected person had a mental illness. However, the effect of the Act generally is that it is probably only the case where a person has previously been assessed with a mental illness and there is evidence that continued treatment is necessary to prevent reoccurrence of the symptoms and the person affected has a history of not voluntarily accepting treatment, that the Tribunal would be justified in making such an order. I do not need to go further because that is this case. 2. The present appeal is against a decision of the Mental Health Review Tribunal of 3 June 2015, as well as the earlier decisions. As I noted earlier, Ms Richardson says I have no power to deal with the earlier decisions because a finding that Z was mentally ill was merely incidental to the order that was made and the order that was made is now spent. If that argument is correct, I have no power to deal with those decisions. If the argument is not correct, I can deal with a determination of mental illness but not the consequences. Ms Richardson submits that that cannot be because the Act says that if I, as the Tribunal substitute, come to the conclusion that Z was not mentally ill at the time I must discharge the affected person, which is now impossible. I think, however, that obligation to discharge must be read sub modo, that is, that it must be read as if the person is still in custody and it does not prevent me from dealing with the basal order because it may very well be that the stigma of being declared a mentally ill person will have social and legal consequences, even after the discharge. 3. As I have said earlier because I have not had arguments from both sides and because, with respect, I am not particularly convinced with the argument put by Ms Richardson, I do not think that it is in the community's interest that I make that decision now on the material before me. I will wait for a case where it is properly argued on both sides. But on the material before me, on the balance of probabilities the determination was correct, so the problem does not arise. 4. The decision of 3 June 2015 was that Z needed treatment for chronic schizophrenia and the minimum appropriate treatment in all the circumstances was the community treatment order that was made. Now the basis of the decision can be found in the evidence of Dr Chandrasekera. At paragraph 25 on page 329 of the Court Book Dr Chandrasekera swore: 25. After Dr Law reported his findings to me on 3 June 2015 I remained of the view that [Z] was suffering from schizophrenia and was a mentally ill person under the Mental Health Act. Although [Z's] symptoms were diminished in comparison to [the] symptoms in May 2015 in my opinion, if [Z] stopped the treatment at that time [Z] would likely become unwell again. I formed the view that although [Z] had been under psychiatric care since being admitted to Royal North Shore on 19 April which is nearly seven weeks of care, continuing treatment was necessary to keep [Z] well and prevent, as far as possible, further relapses of [Z's] schizophrenia. 26. Schizophrenia is a chronic mental illness which is characterised by periods of relapse on a background that the patient's cognitive function will also decline over time. As at 3 June 2015 [Z] had a relapsing chronic condition, as evidenced by documented relapses, requiring hospital presentations since 2012 each with persecutionary delusions. 27. Schizophrenia affects a person's thoughts, perceptions and mood in a manner that can lead to poor social, occupational and emotional functioning. If schizophrenia is not treated a patient will be much more likely to have future psychotic relapses and those psychotic relapses are likely to be more severe...Hence without adequate pharmaceutical treatment and support [Z] would be chronically unwell and impaired in the above domains. With treatment and support, the symptoms can be managed and can attain a greater degree of function which would be impossible without treatment. Although schizophrenia cannot be cured it can be managed well with appropriate treatment. 28. I formed the view that if [Z] did not take a prescribed anti-psychotic medication, that [Z] would be at real risk of a deterioration of Z's mental illness and at risk of the harms described above. 1. Now Z cross-examined Dr Chandrasekera. Z did put to him that a lot of the material he had read was non-verified assertions from family members and put to him that he could not be satisfied of the so-called facts which they alleged. Dr Chandrasekera's answer to that was, whilst that might be true up to a point, he himself had had one- on-one sessions with Z for a period of over a month and was satisfied with his diagnosis. Dr Law gave similar evidence. 2. In Z's closing submissions Z took me to the decision of Crispin J in the ACT Supreme Court to which I have already referred. In that case Crispin J was not satisfied that the mental health authorities in the ACT had gone about things the right way and Z's submissions were to point to various observations that Crispin J made about the findings of the Tribunals in the ACT and to show me just how like, in Z's submission, were the circumstances of the present case. Now logically, it is not a particularly impressive argument to argue that the facts of one case are so like the facts of another case that in the second case one can draw heavily on the first case. I appreciated the submissions that Z made. There was a lot of sense in them, but it did seem to me that this case was not in all fours the same as the ACT case, that the reports of matters against Z had been made over a considerable period of time by a number of different people. Z had been under the care of Dr Chandrasekera and his colleagues for some months and that the evidence of Dr Chandrasekera really should be accepted and that that was the evidence on which the Tribunal made its decision, that is that in all the circumstances it would be best to infringe Z's civil liberties to the extent of ordering the treatment under the community treatment order. 3. I have to decide the matter on the balance of probabilities. I would have liked to have thought about it a bit more, but for the reasons I have outlined it seems to me that in the absence of any particular medical evidence produced by Z and on the background, that there is some material to justify the view that Z is a person who is unwilling to accept that Z has schizophrenia, that on the balance of probabilities the order made by the Mental Health Review Tribunal was the correct one for it to make. 4. Accordingly, the appeal is dismissed. The defendants do not ask for costs, so I do not need to make any other order.