A Duty List Plaintiff v A Local Mental Health Service (No. 2) [2019] NSWSC 872

Supreme Court New South Wales

Medium Neutral Citation: A Duty List Plaintiff v A Local Mental Health Service (No. 2) [2019] NSWSC 872 Hearing dates: 7 & 9 July 2019 Date of orders: 09 July 2019 Decision date: 09 July 2019 Jurisdiction: Equity - Duty List Before: Slattery J Decision: Application dismissed. No costs order made. Catchwords: Plaintiff suffers from schizophrenia – Mental Health Review Tribunal authorises the plaintiff to undergo a course of electroconvulsive therapy – plaintiff has undergone nine of 12 authorised therapy sessions – plaintiff complains that the treatment is causing her bruising and other uncomfortable side-effects – plaintiff obtains a short term ex parte injunction to suspend the therapy – plaintiff does not bring an appeal against the decision of the Mental Health Review Tribunal – whether the injunction should be extended or whether the therapy should be allowed to continue in accordance with the decision of the Mental Health Review Tribunal. Legislation Cited: Mental Health Act 2007 Cases Cited: A Duty List Plaintiff v A Local Mental Health Service [2018] NSWSC 96 Category: Consequential orders (other than Costs) Parties: Plaintiff: [not published] Defendant: [not published] Representation: Counsel: Defendant: Mr D. Birch

Solicitors: Plaintiff: in person Defendant: Mr Christopher Frommer, NSW Crown Solicitor's Office File Number(s): 2018/7252 Publication restriction: Yes

EX TEMPORE Judgment 1. The plaintiff suffers from a form of schizophrenia that does not readily respond to treatment by courses of oral medication. She is an inpatient in a psychiatric unit in a hospital conducted by the defendant Health Authority. On Sunday, 7 July 2019, the Court granted an interlocutory injunction to restrain the defendant from continuing to administer certain electroconvulsive therapy ("ECT") treatment to the plaintiff at the defendant's psychiatric unit. Today is the return date of that injunction. The Court has conducted a short hearing to determine whether the interlocutory injunction should continue. The plaintiff has suffered from schizophrenia and related paranoid disorders for a number of years. She has not always been compliant with her prescribed treatment regimens and from time to time has suffered acute schizophrenic episodes. 2. On 12 June this year, the Mental Health Review Tribunal ("the Tribunal") in the exercise of powers conferred under Mental Health Act 2007 ordered that twelve treatments of ECT be administered to the plaintiff. The plaintiff has not as yet brought any appeal from the Tribunal's decision. The plaintiff approached the Court in its duty list over the weekend and the Court convened an ex parte hearing on Sunday, 7 July. During that hearing, the Court was told by the plaintiff that, of the twelve treatments that had been ordered, she thought some 10 treatments had taken place and that she was suffering adverse side-effects from the treatments that had been administered so far. Evidence today from the treating doctor has indicated that it appears that nine of the 12 had taken place, but that difference is not particularly material to the decision that needs to be made today: whether or not to continue the injunction. 3. ln the ordinary case, the plaintiff should approach the Tribunal to vary the orders it has made. But she chose to invoke the Court's parens patriae jurisdiction. The Tribunal has managed the supervision of the administration of treatment of the plaintiff's schizophrenia over many years. The Court is very cautious about assuming that role, as there is ample power for the Tribunal to deal with applications such as this. But as the Court was approached on the weekend, and as the symptoms that the plaintiff complained of appeared to be deeply troubling to her, the Court intervened for the minimum time necessary to stabilise the position until this morning. 4. I have previously considered aspects of her treatment under the defendant's control and possible appeals from the Tribunal's decisions about the plaintiff: A Duty List Plaintiff v A Local Mental Health Service [2018] NSWSC 96. 5. The hearing on 7 July ended up not being entirely ex parte. Once the Court heard from the plaintiff on her application that she was well through a regular course of ECT and that another treatment was due the following morning, Monday 8 July, the Court became concerned that an injunction interrupting the course may carry with it the risk that she may be required to go back to the beginning of her course of treatment again. 6. So at the interlocutory hearing, adopting an informal procedure with the plaintiff's agreement, the Court managed to make telephone contact with a nurse at the psychiatric unit, who indicated that if the injunction were granted preventing the ECT from occurring the following day, he did not believe that it would be particularly harmful to her. The nurse consulted with a psychiatrist who had supervisory duties with respect to the unit before giving this opinion to the Court. 7. Evidence today confirms the correctness of this information. Last week, the plaintiff's therapy was changed from three times a week to twice a week. So, in fact, therapy today or tomorrow and Friday would be satisfactory to meet her existing treatment regimen this week. The Court was primarily concerned about granting an injunction that might worsen the plaintiff's position: to interfere with the course of treatment which had been prescribed might risk making her condition worse. But on the basis of what the psychiatric nurse said to the Court on Sunday, the Court decided to grant a temporary injunction, and the matter was made returnable this morning. 8. The plaintiff represented herself on Sunday and today. But she was at all times assisted by her father who is with her throughout the proceedings and who takes a very close and caring interest in her. The plaintiff's mother died some years ago and tragically the plaintiff's schizophrenia symptoms emerged not long after her mother's death. The Court has been greatly assisted by the plaintiff's father's presence and by his help to his daughter throughout this process. 9. The defendant was represented by the Crown Solicitor. Mr Birch of counsel appeared on behalf of the defendant today. 10. The evidence today has thrown more light upon the three main complaints of side-effects that the plaintiff raised. The first was a bruising which had occurred to her left arm in the course of the treatment. The second was the headaches and dizziness and light headedness which she had suffered after the treatment. And the third was the confronting attachment of electrodes to her head before she was placed under an anaesthetic for the treatment. 11. The Court has looked at each of these matters today, and is satisfied on the evidence that has been adduced by the doctor who has given evidence for the defendant, that each of those three matters has an explanation which is consistent with the proper conduct of the ordered treatment, and that to continue the injunction would gravely risk the relapse of her symptoms into a more severe and more florid schizophrenia. The doctor who gave evidence is not the plaintiff's regular treating doctor but I am satisfied is very familiar with her case. 12. As to the bruising, the evidence is, and the Court accepts, that it is a not an uncommon risk associated with the insertion and withdrawal of a cannula, which is required for the administration of the anaesthetic in the course of ECT therapy, which is conducted whilst the plaintiff is under a light general anaesthetic. The Court has been told, and accepts, that occasionally some bruising will occur upon insertion or withdrawal of a cannula in the position where the bruising is here, on the inner side of the left elbow. 13. The plaintiff thought that the bruising may have been caused by her being held down in the course of the treatment. But the treating doctor's evidence has confirmed that that is not the case with her particular treatment. There appears not to have been any occasion where the bruising might have been caused by movement while she was being held in the course of her treatment. The Court accepts that the plaintiff's bruising is more likely to be explained by the cannulisation process. And it is impossible to conduct the therapy without cannulisation, as it is the appropriate means for a patient such as the plaintiff to have anaesthetic administered to her. 14. The second issue raised was headaches and related feelings of light-headedness that she has suffered. The treating doctor has explained that a degree of light-headedness is to be expected upon the administration of the light anaesthetic that is used, and that after three to four hours and the taking of food after regaining consciousness, that the light headedness should wear off. The plaintiff certainly says she feels different after the conclusion of the therapy when she regains consciousness, but she herself agreed in explaining this to the Court that it is only a temporary symptom. 15. The third matter the plaintiff raised is the confronting effect of having electrodes placed upon her head before she is anaesthetised. The Court raised this complaint with the treating doctor. The Court enquired about the possibility of the electrodes being attached after she was anaesthetised. But it was explained by the doctor that a disadvantage of taking that course is that it would require the administration of the anaesthetic for a longer period of time, which involves its own additional risks. Tthe preferred course is to attach the electrodes first, to reduce the time taken for the administration of the anaesthetic. The doctor did explain though that the electrodes are similar to those that are attached when an ordinary electrocardiogram is administered, and that they can be attached with appropriate reassurance to the plaintiff, so that it is less confronting to her. 16. He also explained that a number of people in his private and public practice do find that this is a rather confronting part of the ECT process, and that medical professionals associated with the administration of the therapy are sensitive to this. 17. Behind the plaintiff's three prominent complaints, the Court discerned that the plaintiff was perhaps more deeply concerned about her lack of knowledge as to what happens under the anaesthetic. The plaintiff's father was also concerned about this. 18. The Court has been reassured about that matter in two ways. First, the treating doctor has explained that there are films and other information available for both the plaintiff and her father to find out more about how she is likely to respond under the anaesthetic during the ECT sessions. She and her father have been offered access and encouraged to access these. Secondly, the treating doctor reassured the Court, the plaintiff and her father that if anything unusual were to happen under the anaesthetic (and it is not suggested that in recent times any such thing has occurred) the recovery nurse, who is present when the plaintiff comes out of her anaesthetic, has a duty to explain to her anything unusual which has occurred under the anaesthetic. The doctor gave evidence that the plaintiff can be confident that that such an explanation will occur about anything unusual under the anaesthetic. 19. The doctor confirmed in his evidence that the plaintiff therapy has been reduced from three sessions per week to two sessions per week so that it could be resumed without difficulty tomorrow, 10 July, without any serious interruption to the effectiveness of the course of treatment. But he did warn that if the injunction were to be continued any longer, the plaintiff was at serious risk of relapse into acutely florid schizophrenia. At least two of the symptoms of this would probably be that she would be incommunicative and incontinent. He said this was a serious risk of discontinuing in the treatment. He cautioned that because the plaintiff's schizophrenia is so poorly responsive to oral medication he may have to request the administration of a further course of ECT from the Tribunal. The plaintiff and her father asked the doctor a number of questions about his evidence. But the Court has no reason to doubt the correctness of his evidence. 20. The role of the Court in this situation is not to review the correctness of the decision of the Tribunal as it not being challenged. The Court is only concerned at this time, as it explained to the parties, with the correct implementation of the Tribunal's existing decision. And on that matter, having considered all the matters required by Mental Health Act, s 68 the Court has decided that the injunction should be allowed to expire this afternoon and not to be renewed. The therapy can recommence in the morning. 21. The essential reason for that is that the risk to the plaintiff's health of not continuing to implement the Tribunal's decision is so great that the injunction should be discharged. The symptoms that may well emerge due to her schizophrenia, if the therapy is not continued, are a sufficiently powerful reason in themselves for the discharge of the injunction. And this is particularly so in circumstances where the other matters that she has raised with the Court have now been largely explained, and reassurance given about what happens to her under the anaesthetic.