A Duty List Plaintiff v A Local Mental Health Service [2018] NSWSC 96

Supreme Court New South Wales

Medium Neutral Citation: A Duty List Plaintiff v A Local Mental Health Service [2018] NSWSC 96 Hearing dates: 12 February 2018 Date of orders: 12 February 2018 Decision date: 12 February 2018 Jurisdiction: Equity - Duty List Before: Slattery J Decision: The plaintiff's claim for interim relief declined for lack of evidence. Plaintiff referred to the NSW Bar Association Pro Bono Scheme for legal assistance under UCPR, r 7.36 at least for completing and lodging a Legal Aid application. Catchwords: MENTAL HEALTH – application for appeal against a Community Treatment Order under Mental Health Act 2007, s 163 – plaintiff seeks interim relief to lift a community treatment order ("CTO") made against her in October 2017 – CTO expires in April 2018 – proceedings urgent – clear need for legal assistance for the plaintiff due to her personal circumstances – consideration of referral under UCPR, r 7.36 to the NSW Bar Association's Pro Bono Scheme for legal assistance. Legislation Cited: Mental Health Act 2007, ss 163 and 164 Cases Cited: M v Mental Health Review Tribunal & Ors [2015] NSWSC 1876 Z v Mental Health Review Tribunal [2015] NSWCA 373 Category: Procedural and other rulings Parties: Plaintiff: [not published] Defendant: [not published] Representation: Solicitor:

Plaintiff: in person Defendant: Jessica Kavanagh, NSW Crown Solicitor's Office File Number(s): (2018/7252) Publication restriction: Yes

EX TEMPORE Judgment 1. The plaintiff applies today in the Equity Duty List for what she described as an "emergency injunction" to stay an October 2017 determination of the Mental Health Tribunal ("the Tribunal") making a six-month Community Treatment Order ("the Order") requiring her to submit to treatment for mental illness. Her summons filed in January 2018 seeks to appeal against the Order, which expires in April 2018. The defendant is the local area health authority. 2. The plaintiff was ordered by Black J to put on affidavit evidence in support of her appeal. I do not yet have that evidence. For reasons that will be explained the plaintiff is probably unable to put on affidavit evidence without assistance from someone with legal qualifications. The plaintiff offered to give oral evidence in support of her application today. She gave a précis of her proposed evidence: she explained that her symptoms were of "spiritual" origin and that she was not unwell. Her précis does not indicate that, were she to give oral evidence, I would be assisted by that evidence in deciding whether or not to lift the injunction today. The central question for today is whether staying the order would be in her best interests before the determination of the appeal. 3. The copy of the determination of the Tribunal is in evidence before me (Exhibit A on this application). Edited to protect the plaintiff's anonymity, the reasons for the Order appear below. 4. The Order, to be implemented by the defendant, required the plaintiff to be present at such times and places and relevantly to receive such medication and management in accordance with the "attached treatment plan". The treatment plan provides for the plaintiff to receive one intermuscular injection fortnightly of 75mg of Risperdal Consta. 5. The Treatment Plan also provides for the plaintiff to attend medical reviews and to receive education about her mental illness to encourage compliance with her treatment regime. 6. The Tribunal's reasons for the order were as follows: "[The plaintiff] does not consider herself to have a mental illness and does not wish to be on a CTO. Without a CTO she would be likely to cease treatment and her symptoms would return, meaning repeat readmission to hospital." 1. There is no medical evidence to contradict the continuation of the Order, so I am not prepared to stay or vary it. The Court needs to be better informed with relevant medical evidence. The Court will direct the defendant to put on its evidence in respect of the appeal (on which, in any event, it bears the evidentiary onus to continue the Order) by next Wednesday. This should incidentally throw light on the merits of the plaintiff's interlocutory application. I will adjourn the matter until next Thursday 22 February 2018. 2. The plaintiff's appeal requires urgent attention. It is quite apparent from the Court in engaging with the plaintiff in the courtroom and from the content of the appeal documents she has already put on, that without some kind of legal assistance she will have great difficulty in presenting any appeal to her advantage. This is foreseeable now from the Court's interactions with her on this brief hearing. Some steps can now be taken to address her disadvantage. 3. As Lindsay J has comprehensively explained in a number of recent cases, appeals such as this one will probably be taken to proceed under Mental Health Act 2007, ss 163 and 164 in which the appeal is treated as a hearing de novo and in which the respondent to the appeal, the relevant health authority, will ordinarily bear an onus of establishing whether a community treatment order should be made again: M v Mental Health Review Tribunal & Ors [2015] NSWSC 1876, at [21] and [22]. The Court is required in these cases to consider afresh whether such an order should be made and the Court's consideration does not involve rehearing of the Tribunal's determination in which the plaintiff bears an onus to establish error in the decision or the decision-making process of the Tribunal: Z v Mental Health Review Tribunal [2015] NSWCA 373 at [7] and [173] – [174]. 4. Such appeals are not uncommonly urgent: see M v Mental Health Review Tribunal & Ors [2015] NSWSC 1876 at [24]. The Order made on 12 October 2017 has a term of six months and will expire on 11 April 2018. The order is highly invasive: whether the plaintiff consents or not, as she describes from the Bar table, every two weeks she is injected with medication to treat her current condition, which from the limited materials presently available to the Court appears to be schizophrenia. 5. The plaintiff was deeply anxious. Her next injection is due to be administered tonight. She said that unless the Court lifted the stay she feared that she would be forced to accept that injection. But on the limited evidence now available the Court is not prepared to stay the existing orders. The evidence does not permit the Court on an interim basis, whatever the merits of her appeal, to determine on the balance of convenience that it would be better that the existing order be stayed. From the Tribunal's reasons for the order, the risks of the plaintiff causing potential harm to herself or others are sufficiently real and the lack of countervailing evidence means that the Court cannot make the order the plaintiff requests. The Court has informed the plaintiff of that conclusion. 6. What is to be done in the short term? Attempting to judge the plaintiff's insight into her situation from the Court's short interaction with her across the Bar table is necessarily an imperfect art. But her insight about her current situation can be tentatively assessed at least at two levels: (1) she has poor insight of what might happen if she fails to take her medication; but (2) she has acute insight as to her agonising distress at being forced to take the medication prescribed for her. This is no better expressed than in her own words: "PLAINTIFF: I'm not saying I didn't have mental illness in the past, but what I'm saying is that the drug doesn't help me, the drug is not what I need, the drug makes me worse. Yes, not better. And being without ‑ not being on the drug is what makes me okay. HIS HONOUR: I understand what you say and if you got into the witness box and you said just that, I would still say I want to hear from some doctors about whether they agree or disagree with what you've said because someone who's not a doctor who says "The drug is making me worse", that's one opinion but I still have to hear an expert as well. PLAINTIFF: Can I just say, with the experiences that I've had in the past, some of the issues are some things that the doctors do not agree with because it doesn't fall into the psychiatric realm. HIS HONOUR: But I still need to know what they say about that because if you do need the drug and I were to ‑ if you really do need the drug and I were to lift the order now, it could be very harmful for you. PLAINTIFF: No, it's not harmful for me because I'm doing very, very, very well at the moment and if I had the next injection that would be very, very detrimental for me. HIS HONOUR: When is the next injection due? PLAINTIFF: Today. HIS HONOUR: Today? KAVANAGH: Yes, your Honour. PLAINTIFF: Yes. HIS HONOUR: Do you need to go back to [the local] hospital now, is that what's‑‑ PLAINTIFF: No, no. HIS HONOUR: Sorry. If I don't lift the order, that's what will happen? PLAINTIFF: No, if you don't lift the order, they come home and give me the injection. HIS HONOUR: If I lift the order? PLAINTIFF: No, if you don't lift the order, they come home and give me the injection. HIS HONOUR: But how do I know what you will do if they don't give you the injection? PLAINTIFF: If they don't give me the injection, I'll be okay because, if I have an emergency, I'll call triple 0 and go straight to the hospital. HIS HONOUR: How often do you have the injections? PLAINTIFF: In the past, I used to have them once every fortnight. HIS HONOUR: So there's one due today and the next one will be do due in two weeks today if you have one today? PLAINTIFF: Yes. HIS HONOUR: What happens when you have the injection? PLAINTIFF: Sometimes I'm afraid that I'll ‑ it will disrupt things for me. HIS HONOUR: The problem is, I don't have any medical evidence either way about but what I should do and I just don't have enough basis to order, yet, to order that you not have the injection. There's an existing order? PLAINTIFF: Yes. And also can I just say the injection makes me feel not okay. In the past, it hasn't, but the next injection I'm afraid it will make me feel not okay because I'm okay now. HIS HONOUR: When you say "not okay", what does it make you feel? PLAINTIFF: Not okay." 1. When the plaintiff's appeal is heard, the Mental Health Act mandates in the case of the Tribunal, and on appeal the Court itself, the consideration of a number of principles that reflect Parliament's intent: the principles that are "as far as practicable" to be given effect with respect to the care and treatment of people with mental illness or mental disorder. The following principles that the Parliament has declared in Mental Health Act, s 68 appear to be relevant to this case: "(a) people with a mental illness or mental disorder should receive the best possible care and treatment in the least restrictive environment enabling the care and treatment to be effectively given, … (c) the provision of care and treatment should be designed to assist people with a mental illness or mental disorder, wherever possible, to live, work and participate in the community, (d) the prescription of medicine to a person with a mental illness or mental disorder should meet the health needs of the person and should be given only for therapeutic or diagnostic needs and not as a punishment or for the convenience of others, (e) people with a mental illness or mental disorder should be provided with appropriate information about treatment, treatment alternatives and the effects of treatment and be supported to pursue their own recovery, (f) any restriction on the liberty of patients and other people with a mental illness or mental disorder and any interference with their rights, dignity and self-respect is to be kept to the minimum necessary in the circumstances, … (h) every effort that is reasonably practicable should be made to involve persons with a mental illness or mental disorder in the development of treatment plans and recovery plans and to consider their views and expressed wishes in that development, (h1) every effort that is reasonably practicable should be made to obtain the consent of people with a mental illness or mental disorder when developing treatment plans and recovery plans for their care, to monitor their capacity to consent and to support people who lack that capacity to understand treatment plans and recovery plans, (i) people with a mental illness or mental disorder should be informed of their legal rights and other entitlements under this Act and all reasonable efforts should be made to ensure the information is given in the language, mode of communication or terms that they are most likely to understand, …" 1. It is sufficient to take one of these as an example: s 68(i). Half an hour's contact with the plaintiff in the courtroom makes it perfectly clear to the Court that unless she receives some legal assistance in her case, being "informed of [her] legal rights" will be an empty formality. Unless she has a lawyer to see that her legal rights are acted on in her own interests, she will suffer the inevitable disadvantage of failing to comprehend the true significance of those rights for her. 2. To begin to fulfil the Parliament's intent, the Court will provide an opportunity for the plaintiff to make an urgent application to the Legal Aid Commission for legal assistance on her appeal and with any interim application she may wish to pursue. 3. The short term solution is clear. The plaintiff should be able to avail herself of the Pro Bono Assistance Scheme provided by the Bar Association at least to assist her to draft and prosecute a Legal Aid application. The Court and the public are well served by the volunteer assistance of barristers and solicitors through this scheme which is regulated under UCPR, r 7.36. It was not contested that the plaintiff, whose only income is the pension, and who does not have any identifiable assets, is a meritorious candidate for referral. 4. The proceedings will be adjourned for one week to Thursday 22 February 2018 to require the defendant to put on its evidence and to see if an application for Legal Aid can be lodged on the plaintiff's behalf.