A (by his tutor Brett Collins) v Mental Health Review Tribunal

Preliminary issue

1. The written application for the appointment of a guardian for Mr ERC was made by Ms UDQ who is a drug and alcohol specialist and mental health professional working for a Community Mental Health Services in West Sydney. Ms UDQ's application sets out the following reasons for the application: '[Mr ERC] is currently under a forensic order which he and his family are disputing. He has declined referral to appropriate services in the community for support. He has not been complying by the forensic order conditions which include: � Attend appointments with case manager fortnight or weekly � Attend appointment with the psychiatrist � Attend rehabilitation activities such as employment, [a disability services provider], drug and alcohol counselling The forensic team have informed Mental Health to apply for the Public Guardian (sic).'
2. During the course of her evidence, Ms UDQ clarified that her application was the result of being advised by the forensic tribunal to make an application for the appointment of a guardian for Mr ERC. Initially, Ms UDQ indicated that the treating team did not agree with this advice. Whilst the treating team believed that Mr ERC needs someone who can make decisions so that he abides by the conditions of the forensic order, according to Ms UDQ they did not believe that a guardian could force Mr ERC to go to appointments and that she did not see a role for a substitute decision-maker.
3. Section 55 of the Civil and Administrative Tribunal Act 2013 (NSW) ('CAT Act') sets out the circumstances in which the Tribunal may, at any stage, dismiss proceedings before it. Relevantly, this includes circumstances in which the applicant withdraws the application (section 55(1)(a)).
4. Ms UDQ was invited by NCAT to consider whether she wished to withdraw her application for the appointment of a guardian for Mr ERC. Ms UDQ declined, however, to do so and stated that she wished to proceed with the hearing of the application. Ms UDQ submitted that on the basis of the professional evidence that had been provided to NCAT, the treating team were of the view that Mr ERC has a disability that impairs his ability to make informed decisions and, in subsequent evidence and submissions, she appeared to support the making of a guardianship order.
5. In these circumstances, NCAT proceeded with determining the application. For the reasons that follow, NCAT dismissed the application for the appointment of a guardian for Mr ERC on the basis that Mr ERC was not, on the available evidence, a person for whom a guardian could be appointed.

What did Tribunal have to decide?

1. The questions relevant to NCAT's consideration were as follows:

• Is Mr ERC someone for whom the Tribunal could make an order because he has a disability that prevents him from being able to make important life decisions?
• Should the Tribunal make a guardianship order and if so, what order should be made?
• Who should be the guardian?
• How long should the order last?

Is Mr ERC someone for whom the Tribunal could make an order because he has a disability that prevents him from being able to make important life decisions?

1. Section 14 of the Guardianship Act 1987 (NSW) ('the Guardianship Act') provides that the Tribunal may make a guardianship order for a person if it is satisfied that he is 'a person in need of a guardian.' A person in need of a guardian is 'a person who because of a disability is totally or partially incapable of managing his or her person' (section 3(1)). A person with a disability is a person who is: (a) intellectually, physically, psychologically or sensorily disabled; (b) of advanced age; (c) a mentally ill person within the meaning of the Mental Health Act 2007 (NSW); or (d) otherwise disabled; and by virtue of that fact is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation (section 3(2)).

Health professional evidence

1. The Tribunal was provided with a report dated 3 October 2014 prepared by a social worker employed by the NSW Community Forensic Mental Health Service, and a consultant forensic psychiatrist with the same service. This report was prepared for the purposes of a hearing before the Mental Health Review Tribunal on 7 October 2014. The assessment of Mr ERC contained in that report was stated to be based on a meeting between the authors of the report and Mr ERC for 45 minutes on 29 September 2014, previous Justice Health reports and clinical notes of the Community Mental Health Team in West Sydney dated 1 April 2014-25 September 2014. The report also notes that Mr UWC and Ms OFM were present for a portion of the interview on 29 September.
2. The report notes that Mr ERC suffers from a major neurocognitive disorder due to traumatic brain injury as a result of a head injury that Mr ERC experienced as a child when he was hit by a motor vehicle. The report notes that Mr ERC requires assistance with complex activities of daily life. He has poor problem-solving and judgment which is evidenced by his inability to independently manage medical appointments and medication.
3. According to the authors, 'Mr ERC's intellectual functioning on testing falls into the Extremely Low Range and is characterised by problems relating to attention and working memory, as well as deficits in information processing speed, working memory and new learning abilities.' The report does not include details of the nature of the testing conducted that formed the basis of this view.
4. The report also notes that Mr ERC has a diagnosis of alcohol-use disorder, cannabis-use disorder, and opiate-use disorder. It was noted that Mr ERC reported complete abstinence from all illicit substances and alcohol but the authors also note that Mr ERC does not provide random urine samples and blood tests when his treating team request they be completed.
5. The authors note that Mr ERC was taking an anti-psychotic medication and it would not be possible to exclude an underlying psychotic process such as a differential diagnosis of schizophrenia. The authors note that Mr ERC's 'problem behaviour' could be best described as reactive aggression and the circumstances that led to the offence that have resulted in the orders made pursuant to the Mental Health (Forensic Provisions) Act likely reflect poor problem-solving abilities.
6. The authors of that report specifically note that Mr ERC's cognition was not formally assessed during their meeting with him on 29 September 2014. They also note that 'he has obvious problems with memory consistent with known deficits for previous neuropsychological assessment findings.' There is, however, no reference to the date that any such assessment was undertaken or a reference to the results of such assessment.
7. The authors of the report state as follows: [Mr ERC] continued refusal of services and sporadic compliance with the conditions of his forensic order, despite being aware of the consequence of breaching the order, indicate poor insight and judgment. [Mr ERC] clearly needs assistance from support services in order to ensure his compliance with appointments and other obligations. This support exceeds what can be practicably provided from his treating team, and has been unable to be facilitated by his family, despite the designation of his mother as a formalised carer. Should [Mr ERC] continue to demonstrate poor judgment by refusing these services, consideration should be made regarding the application for a guardianship order, so that disability services are able to work with him and provide him with much needed support.
8. The authors express the opinion that there are reasonable grounds for believing that care, treatment and control of Mr ERC is necessary for his own protection from serious harm and the protection of others from serious harm. If inadequately treated, Mr ERC's condition is likely to deteriorate and thus the risk he would pose to himself and others would increase.
9. The Tribunal was also provided with two written reports prepared in 2012 by different health professionals.
10. The first was a report by Dr Y, Consultant Forensic Psychiatrist, dated 11 April 2012 prepared for the purposes of the hearing of the criminal charges against Mr ERC. The author recommended that since the aetiology of Mr ERC's psychotic condition was unclear at that time, and in particular whether he had any prior mental health contact, Mr ERC should undergo a complete psychiatric assessment including obtaining prior history and corroborative information. Dr Y also recommended that neuropsychological testing would be useful in delimiting the impact of head injury on Mr ERC's cognitive functions.
11. The second report was prepared by Ms X, Forensic Psychologist, dated 11 July 2012. This report was prepared to assist in the assessment of Mr ERC's fitness to plead to the criminal charges. Ms X notes that Mr ERC's presentation and the results of testing indicate that he demonstrated a mild intellectual disability. Using the terminology of the DSM-IV, according to Ms X Mr ERC falls into the mild mental retardation range and that given his history of traumatic brain injury at five years of age, discrepancies in the information he supplied regarding the offence that led to the proceedings were of concern. Ms X expressed the view that it was not appropriate for her to proceed with further testing as a neuropsychological assessment was warranted.
12. The Tribunal was not advised of any assessment that was specifically undertaken of Mr ERC's cognitive state and resulting capacity for decision making for the purposes of this application for guardianship. Nor was there any evidence that a full neuropsychological assessment had been undertaken.

Evidence of Mr ERC and others

1. Mr ERC, members of his family and the separate representative disputed the contention that Mr ERC is not able to make his own decisions.
2. Mr ERC gave evidence to the Tribunal that he does a lot on his own and that he has Ms OFM and his parents to help him. Mr ERC acknowledged that he has some problems with his memory and he has forgotten to go to appointments but that he realises the seriousness of not complying with his conditional release orders and that Ms OFM was going to help remind him of his appointments.
3. Mr UWC, when asked for his view about his son's decision-making capacity, told the Tribunal that he believes that his son knows when he has appointments and the issue is more to do with Mr ERC's attitude. According to Mr UWC, his son does not believe that he has done anything wrong and does not agree with the fact that he is now subject to orders by the Mental Health Review Tribunal.
4. Ms OFM told the Tribunal that she and Mr ERC have been in a relationship for approximately 20 years. Ms OFM told the Tribunal that she thought that Mr ERC was capable of making his own decisions. She believes that he is aware of the consequences and knows the seriousness of not complying with the orders made by the Mental Health Review Tribunal. Ms OFM indicated that for a period of time when she and Mr ERC had separated, she had stopped reminding him of his appointments and other issues and that that got him into trouble but that she is now involved again and will provide him with the support that he needs.

Separate representative

1. The separate representative acknowledged that the reports provided to NCAT indicate that Mr ERC has difficulties with memory that are consistent with the traumatic brain injury he sustained at the age of five years of age. His mental illness is not symptomatic at this time. The separate representative acknowledged that it is clear that Mr ERC has a low-level of intellectual functioning but that the fact that Mr ERC has these disabilities does not necessarily mean that he is incapable of making his own important lifestyle decisions including in relation to the issue of services. The separate representative indicated that Mr ERC is of the view that he believes he has the capacity to make decisions and choices. The separate representative expressed the view that, based on his discussions with Mr ERC, Mr ERC's family and a review of the evidence that Mr ERC has, in essence, an attitude problem as he does not agree with the consequences that have resulted from the offence that he committed in 2011. According to the separate representative, Mr ERC has told him that now that Mr ERC has been subject to breach proceedings on two occasions, Mr ERC understands that he needs to comply with the conditions of the order and that it would be easier to comply with the conditions than not to.
2. In response to those aspects of the professional reports outlined above which referred to Mr ERC's poor insight and judgment, the separate representative submitted that, in his view, the Tribunal should not be satisfied on the available evidence that Mr ERC's decision-making capacity is impaired to such an extent that a guardian could be appointed for him.

Findings

1. As outlined, NCAT was provided with the lay evidence of Mr ERC, his father and long-term partner and the submission of the separate representative that suggests that the approach that Mr ERC has taken to compliance with the terms of the conditional release orders made by the Mental Health Review Tribunal is the product of Mr ERC's attitude to the existence of those orders rather than the result of cognitive impairment.
2. Compliance with the terms of a conditional release order of the Mental Health Review Tribunal is clearly of the utmost importance. However the evidence provided by Mr ERC and other members of his family and partner indicated that in other respects he is living successfully in the community with the support of his family and partner.
3. The Tribunal also had a number of professional reports before it concerning assessments undertaken of Mr ERC for the purposes of criminal proceedings as well as proceedings pursuant to the Mental Health (Forensic Provisions) Act. Each of the authors of these reports appeared to be well-qualified in relation to the issues that were the focus of the proceedings for which the reports were prepared.
4. The most recent report prepared on 3 October 2014 relates Mr ERC's refusal of services and sporadic compliance with conditions of his forensic order to poor insight and judgment. The report suggests that this is related to the effects of Mr ERC's traumatic brain injury and intellectual functioning rather than his psychiatric condition which currently appears to be stable and asymptomatic.
5. The Tribunal also notes that the other two professional reports prepared by Dr Y and Ms X both recommended neuropsychological assessment to determine the impact of Mr ERC's background of traumatic brain injury and mild intellectual disability on his cognitive functioning. There was no evidence before NCAT that such testing has occurred.
6. After carefully weighing the evidence, the Tribunal could not be satisfied to the requisite standard that Mr ERC's decision-making capacity in relation to the issue of, in effect, understanding the import of the conditional release orders instituted by the Mental Health Review Tribunal or the need to engage with support services, is a result of a disability. The Tribunal did not doubt that the views expressed in the report dated 3 October 2014 were genuinely held but noted that in the preparation of that report, Mr ERC's cognition was not formally assessed. The authors note that Mr ERC had 'obvious problems with his memory, consistent with known deficits for previous neuropsychological assessment findings,' but there was no evidence put before the NCAT of any neuropsychological assessment undertaken in relation to Mr ERC's cognitive functioning in relation to issues of insight and judgment. Without this, it is difficult to readily discern a basis upon which the Tribunal could conclude that Mr ERC is, by virtue of a disability, restricted in one or more major life activities (such as the issue of service provision) to such an extent that he requires supervision or social habilitation. This is particularly so given the evidence provided by Mr ERC and his family as well as the submissions made by the separate representative that contests this aspect of the application and attributes Mr ERC's approach to compliance with the terms of the conditional release order to something other than a disability.
7. In order to properly consider Mr ERC's decision-making capacity in this regard, evidence as to Mr ERC's capacity in relation to this aspect of decision making would need to be made available to the Tribunal.
8. For these reasons, the Tribunal determined that at this point in time and on the available evidence, a guardianship order could not be made for Mr ERC in relation to the areas of decision making that was sought, namely in relation to service provision and possibly accommodation although the latter issue does not appear to have been raised with Mr ERC prior to this hearing date.

Further matters

1. Given the decision to dismiss the application, it was not necessary to proceed with determining the other issues outlined above. However, given the submissions provided by the Public Guardian and the separate representative as to the interrelationship between the relevant provisions of the Guardianship Act and the Mental Health (Forensic Provisions) Act, as well as submissions as to the utility of a guardianship order if NCAT had decided to make one in relation to Mr ERC, the following matters are noted.
2. The Public Guardian, in oral submissions, noted that the Mental Health (Forensic Provisions) Act has a dual purpose: the protection of the interests of the individual as well as a public safety/public interest element. This can bring the mental health legislation into conflict with guardianship legislation given that the primary purpose of the Guardianship Act is the protection and best interests of the individual. The Public Guardian suggested that given that the two pieces of legislation seek to serve different purposes, an order made under mental health legislation will prevail. The Tribunal understood that the Public Guardian's submission was to the effect that this is the case even though section 3C of the Guardianship Act (that sets out the relationship between orders made under the Guardianship Act and the Mental Health Act) does not make specific reference to the Mental Health (Forensic Provisions) Act.
3. The separate representative agreed with the submissions made by the Public Guardian and submitted that guardianship legislation defers to mental health legislation.
4. In relation to these submissions, it is noted that there is nothing in the texts of the Guardianship Act or the Mental Health (Forensic Provisions) Act to suggest any legislative impediment to a person becoming, or already being, the subject of a guardianship order at the same time as being a forensic patient within the definition of that term in section 42 of the Mental Health (Forensic Provisions) Act. The Mental Health (Forensic Provisions) Act appears, in fact, to contemplate a situation in which a person is the subject of a guardianship order at the same time as being a forensic patient. An example of this is provided by section 76B(4) of the Mental Health (Forensic Provisions) Act which states that sections 71 and 72 of the Mental Health Act apply, relevantly, to a forensic patient for the purposes of the Mental Health (Forensic Provisions) Act. Section 71(1) of the Mental Health Act makes express reference to a guardian being a primary carer of the patient (section 71(1)(a)). This has relevance to other provisions of the Mental Health (Forensic Provisions) Act, such as section 76G, which provides that if a forensic patient is to be released or granted leave from a mental health facility in which the patient is detained, the authorised medical officer of the facility must take all reasonably practicable steps to ensure that the person and any primary carer of the person (and therefore the guardian, if there is one) are consulted in relation to planning the person's release and leave and any subsequent treatment or other action considered in relation to the person.
5. There is, however, nothing in either piece of legislation that sets out the approach to be taken in a situation in which a person is, at the same time, subject to orders under both pieces of legislation and how such orders may interact particularly if they might be seen to address the same or similar areas of decision making.
6. This may be contrasted with the legislative guidance provided by section 3C of the Guardianship Act concerning the situation in which a person is, at the same time, 'a patient within the meaning of the Mental Health Act' (and thereby the subject of an order by the Mental Health Review Tribunal) as well as the subject of a guardianship order under the Guardianship Act. Section 3C provides as follows: 3C Relationship with Mental Health Act 2007 (1) A guardianship order may be made in respect of a patient within the meaning of the Mental Health Act 2007. (2) The fact that a person under guardianship becomes a patient within the meaning of the Mental Health Act 2007 does not operate to suspend or revoke the guardianship. (3) However: (a) a guardianship order made, or (b) an instrument appointing an enduring guardian, in respect of a person who is, or becomes, a patient within the meaning of the Mental Health Act 2007 is effective only to the extent that the terms of the order or instrument are consistent with any determination or order made under the Mental Health Act 2007 in respect of the patient.
7. The result of section 3C(3) has been described as limiting 'the effectiveness of guardianship orders by measuring them by their consistency with orders or determinations under the Mental Health Act' (Sarah White v The Local Health Authority & Anor [2015] NSWSC 417, [58]).
8. Section 3C could have application to a person who is a 'forensic patient' as defined in the Mental Health (Forensic Provisions) Act if that person is also a 'patient' within the meaning of the Mental Health Act. However, other than a forensic patient who has been re-classified as an involuntary patient (see further below), it does not appear from an analysis of the definitional provisions in both Acts that a 'forensic patient' falls within the definition of 'patient' under the Mental Health Act given that:

• The definitions of 'patient' and 'voluntary patient' in section 4(1) of the Mental Health Act do not include 'forensic patients' under the Mental Health (Forensic Provisions) Act
• The definition of 'involuntary patient' in section 4(1) of the Mental Health Act includes a 'forensic patient', but only one 'who is re-classified as an involuntary patient under section 53 of the Mental Health (Forensic Provisions) Act.' The note to section 53 clarifies that a person classified as an involuntary patient ceases to be a forensic patient
• The term 'forensic patient' in section 4(1) of the Mental Health Act is stated to have the same meaning as it has in the Mental Health (Forensic Provisions) Act
• Section 42 of the Mental Health (Forensic Provisions) Act defines who, for the purposes of that Act, is a 'forensic patient.' No reference is made in this definition to patients as defined in the Mental Health Act or to patients subject to orders made under that Act

1. An analysis of the provisions of both pieces of legislation does not appear to reveal any express statutory provision that would support the view that an order made by the Mental Health Review Tribunal in relation to a 'forensic patient' under the Mental Health (Forensic Provisions) Act 'prevails' over an order made about the same person under the Guardianship Act.
2. Given this, it would be a matter for the Guardianship Division of NCAT to decide on a case by case basis whether to make a guardianship order for a person who is also a 'forensic patient' as defined in section 42 of the Mental Health (Forensic Provisions) Act.
3. As a matter of practicality, however, where an order is made under the Mental Health (Forensic Provisions) Act with conditions that address in detail the obligations placed on a forensic patient in relation to personal decisions (such as accommodation, medication, enrolment and participation in educational, training, rehabilitation, recreational, therapeutic or other programs) then there may be limited scope for decision making by a guardian appointed under the Guardianship Act with decision making authority about those same issues. The utility of a guardianship order would need to be carefully considered in such circumstances.
4. It may also be relevant to note that in circumstances in which an application for the appointment of a guardian is made for the purpose of seeking to ensure an individual's compliance with the conditions of a conditional release order imposed by the Mental Health Review Tribunal pursuant to the Mental Health (Forensic Provisions) Act, it is difficult, on the face of it, to see how the making of such a guardianship order would be consistent with the general principles set out in section 4(1) of the Guardianship Act. This is for the following reasons.
5. When the Mental Health Review Tribunal conducts a review under section 46(1) of the Mental Health (Forensic Provisions) Act, sections 40 and 74 of that Act and section 68 of the Mental Health Act must be read together (A (by his tutor Brett Collins) v Mental Health Review Tribunal (No 4) [2014] NSWSC 31, [129]).
6. Section 40 sets out the objects of Part 5 of the Mental Health (Forensic Provisions) Act as follows: 40 Objects The objects of this Part are as follows: (a) to protect the safety of members of the public, (b) to provide for the care, treatment and control of persons subject to criminal proceedings who are suffering from a mental illness or mental condition, (c) to facilitate the care, treatment and control of any of those persons in correctional centres through community treatment orders, (d) to facilitate the provision of hospital care or care in the community through community treatment orders for any of those persons who require involuntary treatment (e) to give an opportunity for those persons to have access to appropriate care.
7. Section 74 of that Act requires that the Mental Health Review Tribunal have regard to certain matters when exercising jurisdiction in relation to forensic patients. Section 74 provides as follows: 74 Matters for consideration Without limiting any other matters the Tribunal may consider, the Tribunal must have regard to the following matters when determining what order to make about a person under this Part: (a) whether the person is suffering from a mental illness or other mental condition, (b) whether there are reasonable grounds for believing that care, treatment or control of the person is necessary for the person's own protection from serious harm or the protection of others from serious harm, (c) the continuing condition of the person, including any likely deterioration in the person's condition, and the likely effects of any such deterioration, (d) in the case of a proposed release, a report by a forensic psychiatrist or other person of a class prescribed by the regulations, who is not currently involved in treating the person, as to the condition of the person and whether the safety of the person or any member of the public will be seriously endangered by the person's release, (e) in the case of the proposed release of a forensic patient subject to a limiting term, whether or not the patient has spent sufficient time in custody.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 28 July 2015