Dismissal under s 47 State Administrative Tribunal Act 2004 (WA) - Misconceived proceedings - Decision subject to review no longer operative - Jurisdiction of the Tribunal

Mental Health Act 2014 (WA), s 25, s 25(1)(d), s 25(2)(d), s 89, s 89(1), s 89(2), s 89(2)(b), s 90, s 90(1), s 386(2), s 390(1), s 494, s 494(1)

State Administrative Tribunal Act 2004 (WA), s 13(1), s 14, s 17(1), s 25(1), s 26, s 27(2), s 29(3), s 29(5), s 31, s 47, Pt 3, Div 3

Ambrus and Churches of Christ Homes & Community Services Incorporated [2006] WASAT 141

Armstrong and Medical Board of Australia [2022] WASAT 76

Mathews v Victorian Institute of Teaching [2023] VCAT 1298

(These reasons were delivered orally and have been taken from the transcript of the hearing. They have been edited for the purposes of correcting grammatical errors or infelicity of expression and to add headings).

1. By an application dated 7 August 2024, the applicant sought review of the Mental Health Tribunal's decision made on 22 July 2024 by which it upheld an inpatient treatment order (ITO) made in relation to the applicant. On 9 August 2024, a community treatment order (CTO) was made in relation to the applicant.
2. For the reasons that follow, I am satisfied that upon the making of the CTO on 8 August 2024, the ITO which was the subject of the Mental Health Tribunal's decision ceased to have effect and, accordingly, the Tribunal lacks jurisdiction to review the ITO. The application should therefore be dismissed.

1. On 29 June 2024, Dr NM made an ITO in relation to the applicant. Pursuant to the terms of that ITO, the applicant was held as an involuntary patient in a hospital. By the terms of the ITO, it was to expire on 20 July 2024. On 19 July 2024, Dr PM determined that the ITO should continue until 19 October 2024.
2. On the same day, Dr PM signed off on a report regarding the applicant which had been prepared for the Mental Health Tribunal. In it, he noted that there was a consensus among all treating healthcare professionals that the applicant was suffering from 'a severe mental illness that requires care in an inpatient facility'. On 22 July 2024, the Mental Health Tribunal reviewed the ITO.
3. In that regard, I note that the order of the Mental Health Tribunal the subject of review is described on the Mental Health Tribunal's notice of decision as an ITO made 20 July 2024. As noted, Dr PM's continuation of an ITO was dated 19 July 2024 and continued the order made by Dr NM on 29 June 2024 and which would, but for Dr PM's decision, have expired on 20 July 2024. I have therefore assumed that the reference to an ITO made on 20 July 2024 in the Mental Health Tribunal's notice of decision is a typographical error.
4. There are, in fact, two notices of decision of the Mental Health Tribunal, which appears to reflect that that tribunal was exercising its jurisdiction to review Dr PM's decision in two senses: first, as an initial review under s 386(2) of the Mental Health Act 2014 (WA) (Mental Health Act) and, secondly, pursuant to an application for review under s 390(1) of the Mental Health Act. In both cases, the Mental Health Tribunal confirmed the ITO, holding in each case that the ITO 'remains in force'.
5. As I have said, on 7 August 2024, the applicant applied to this Tribunal for a review of the Mental Health Tribunal's decision under s 494(1) of the Mental Health Act. Although the Mental Health Tribunal appears to have made two decisions, both concerned the same decision to continue the ITO and both were to the same effect, that is, that they did affirm the ITO. I have assumed, therefore, that the application for review of the Mental Health Tribunal's decision seeks review of both of its decisions.

1. On 9 August 2024, two days after the applicant sought review of the Mental Health Tribunal's decision, Dr NM made a CTO in relation to the applicant. When the matter was assigned to me, I promptly listed the matter for directions, which directions were held on 3 September 2024.
2. I did so because I was concerned, for the reasons set out below, that the making of the CTO meant that the ITO ceased to have effect and that this Tribunal therefore lacked jurisdiction. Secondly, I wished to hear from the applicant, preferably with the benefit of legal advice, before I made any decision in that regard. At my request, Dr AJ attended the directions hearing on 3 September 2024.
3. Dr AJ is the applicant's treating psychiatrist under the CTO, and I was concerned to ensure that someone other than the applicant was aware of the progress of the matter. On that day, I adjourned the matter to 24 September 2024 and made orders to the effect that the transcript of the initial directions hearing be made available to the applicant to assist her to obtain legal advice.
4. Unfortunately, the transcript took longer than anticipated to be produced, such that, at the further directions hearing on 24 September 2024, the applicant had been unable to secure legal assistance and I adjourned the matter again, this time to 15 October 2024. At the hearing on that date, the applicant attended alone and advised that, despite her best efforts to obtain legal assistance, she had been unable to do so.
5. I discussed the matter with the applicant, who confirmed her wishes to proceed with the hearing today, that is on 15 October 2024. Consistent with those wishes, I have done so.
6. She has demonstrated to me that she is a woman of intelligence and resource. She is familiar with the provisions of the Mental Health Act and the State Administrative Tribunal Act 2004 (WA) (SAT Act). She is, however, not a lawyer, and the issues with which I am concerned are matters of technicality and involve the proper construction of the SAT Act.

1. She has been unable to persuade me that the preliminary view that I held regarding the Tribunal's jurisdiction is incorrect.
2. Although the Mental Health Act does not explicitly provide that the making of a CTO renders ineffective a previous ITO made in relation to the same person, I find that that is the legal effect.
3. That is what the notes to the ITO says in this case. Those notes state that the ITO in question 'is in force until' it 'expires on the date specified on the order' unless one of three orders is made before that date, one of which is a CTO. In that regard the notes reference both s 89(2) and s 90(1) of the Mental Health Act.
4. Section 89(1) of the Mental Health Act provides that the treating psychiatrist must examine a patient within seven days prior to the end of the period for which they are detained under an ITO.
5. Section 89(2) provides that, following that examination, the psychiatrist must make one of three orders being, firstly, a continuation of the ITO; secondly, a CTO; or, thirdly, an order revoking the ITO. Section 89(2)(b) provides that a CTO is to be made 'if satisfied, having regard to the criteria specified in section 25, that the involuntary inpatient is no longer in need of the [ITO] but is in need of a [CTO]'.
6. Section 90 of the Mental Health Act provides that a psychiatrist may make one of two orders during the time a patient is detained under an ITO; firstly a CTO or, secondly, an order revoking the ITO. In the former case, the psychiatrist may make the CTO 'if satisfied, having regard to the criteria specified in section 25, that the involuntary inpatient is no longer in need of the [ITO] but is in need of a [CTO]'.
7. The criteria referred to in both s 89(2) and s 90(1) is that specified in s 25 of the Mental Health Act. That section provides that a person is in need of an ITO and, in the alternative, a CTO 'only if all' of a list of certain criteria are satisfied in each case. In s 25(1)(d), one of the criteria for an ITO is that 'treatment in the community cannot reasonably be provided to the person'. In s 25(2)(d), one of the criteria for a CTO is that 'treatment in the community can reasonably be provided to the person'.
8. Accordingly, I am satisfied, and I find, that an ITO made in relation to a person ceases to have effect upon the making of a CTO in relation to the same person. I am therefore satisfied, and I find, that the ITO made 29 June 2024, continued on 19 July 2024 and affirmed by the Mental Health Tribunal on 22 July 2024 ceased to have effect upon the making of the CTO for the applicant on 9 August 2024.

Review under the SAT Act requires that the decision under review has effect

1. The SAT Act provides for other Acts, known as enabling Acts, to confer jurisdiction on this tribunal to review decisions made under the enabling Act.[1]
2. Section 494 of the Mental Health Act provides that a 'person in respect of whom the Mental Health Tribunal makes a decision' may, if dissatisfied with the decision, apply to this Tribunal for a review of that decision. That is what the applicant has done in relation to the Mental Health Tribunal's decision to, in effect, affirm the ITO.
3. The regime established by subdivision 3 of Div 3 of Pt 3 of the SAT Act proceeds, in my view, on the basis that the decision under review remains in effect.
4. So, firstly, s 25(1) of the SAT Act provides that the 'commencement of a proceeding for the review of a decision does not affect the operation of the decision or prevent the taking of action to implement the decision' unless the enabling Act states otherwise (and I note that the Mental Health Act does not state otherwise) or that the Tribunal makes an order 'staying the operation of [that] decision'.
5. Secondly, s 26 of the SAT Act restricts the power of the original decision­maker, in this case the Mental Health Tribunal, to vary or set aside the decision under review unless the enabling Act allows it, the parties consent, or the Tribunal invites the original decision-maker to reconsider its decision under s 31 of the SAT Act. In this case the Mental Health Tribunal did not vary or set aside the decision under review; rather, Dr NM made a decision under s 89 or s 90 of the Mental Health Act to make a CTO, the effect of which was, as I have found above, to render the ITO under review without effect.
6. Thirdly, s 27(2) of the SAT Act provides that, amongst other things, the 'purpose of the review is to produce the correct and preferable decision at the time of the decision' under review. I will return to this below.
7. Fourthly, s 29(3) of the SAT Act provides that, upon review, this Tribunal may affirm the decision, vary it or set it aside and substitute its own decision.
8. Finally, s 29(5) provides that the decision made by this Tribunal on review is to be regarded and given effect as a decision of the original decision-maker and is to be regarded as having effect from the time when the decision under review would have, or would have had, effect.
9. In each case, the statutory regime, in my view, proceeds on the basis that the decision under review remains in effect.
10. Of particular significance to my analysis in the present matter is s 27(2), which, as I have noted previously, provides that the purpose of the review is to produce the correct and preferable decision at the time of the decision under review. If this application was to continue to be determined on its merits, the Tribunal would be tasked with determining whether, as at the date of its decision, that is, as at the date of this Tribunal's decision, the correct and preferable decision is to make the ITO.
11. In doing so, this Tribunal would not be concerned with whether or not the Mental Health Tribunal proceeded correctly on 22 July 2024, or whether on that date the medical evidence provided by the relevant doctors was true and correct, or whether they honestly held the opinions stated by them. Rather, fresh evidence would be filed by doctors who may or may not be the same doctors who gave evidence to the Mental Health Tribunal, and this Tribunal would be concerned with whether to make the ITO as at the date it makes its decision.
12. As such, to the extent that the applicant remains aggrieved by the decision to make and continue the ITO and the Mental Health Tribunal's decision to affirm the decision to, in effect, continue the ITO in operation, a review of the Mental Health Tribunal's decision by this Tribunal will not assist her.
13. Section 47 of the SAT Act provides that a legal member of this Tribunal may dismiss or strike out any proceeding if the Tribunal 'believes' that the proceeding is, amongst other things, 'misconceived'.
14. There is considerable authority for the proposition that the power to dismiss a proceeding under s 47 should be used sparingly. In Ambrus and Churches of Christ Homes & Community Services Incorporated [2006] WASAT 141 at [8], Chaney DP, as he then was, observed in terms that have been repeated and endorsed many times that:

[T]he principle to be applied in an application such as this is at least analogous to the principle explained by Barwick CJ in General Steel Industries Inc. v Commissioner of Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 which requires that, in order to strike out a proceeding, it should be demonstrated that it is so obviously untenable that it cannot possibly succeed or is manifestly groundless or that it discloses a case which the court is satisfied cannot succeed.

1. In this case, I am satisfied that the proceeding is manifestly groundless because the decision under review is no longer in effect. That is, I accept that the application for review was valid when it was made, in that the application seeks review of the Mental Health Tribunal's decision to affirm the ITO which remained in effect when the application for review was made, but that state of affairs ceased to exist when the CTO was made.
2. In that regard, I am satisfied that s 47 of the SAT Act may be used to dismiss a proceeding which, although valid when commenced, is no longer so. As Pritchard P held in Armstrong and Medical Board of Australia [2022] WASAT 76 at [44] - [46], the Tribunal has a duty to ensure that every proceeding before it is, and remains, within its jurisdiction. Changes to the law, the underlying factual matrix or some other factor may alter the situation so that a proceeding ceases to remain within jurisdiction. If that occurs, the appropriate course is to dismiss the proceedings as misconceived.
3. Mathews v Victorian Institute of Teaching [2023] VCAT 1298 (Mathews) provides another example. In that case, the Victorian Civil and Administrative Tribunal was concerned with the decision of the Victorian Institute of Teaching (VIT) to refuse to register Mr Mathews as a teacher. After a compulsory conference, the VIT was invited to reconsider its decision and it granted him registration.
4. Mr Mathews, while pleased with that result, wanted to pursue his application for review of the initial refusal, saying that he wanted the VCAT to set aside the VIT's refusal to register him and make a new decision to register him. His lawyer was recorded as submitting that to do so would 'vindicate' Mr Mathews.[2]
5. The VCAT disagreed, saying that, while the application may have been valid when made, the VIT's refusal to grant him registration 'is no longer operative'.[3] It went on, at paras [20] and [21], as follows:

We emphasise that if the proceeding were to continue, VCAT would not be deciding whether the first VIT decision was the correct or preferable decision at the time it was made but would be deciding what - on the basis of the facts and the laws at the time of the review - would be the correct or preferable decision.

We do not consider that the proceeding is (or has become) frivolous or vexatious. But we do consider that it is (that is to say it has become) misconceived, lacking in substance or otherwise an abuse of process.

There is more than one way in which we are able to express our conclusion. In particular, we consider that there is now no reviewable decision. The point is not whether the first VIT decision has been 'reversed' or 'rescinded'. The point is that the first VIT decision is no longer operative. The result is that VCAT does not have jurisdiction. The proceeding has become hopeless.

1. The same can be said of the present application. I accept that it was valid when it was made, but the decision under review no longer exists and there is therefore nothing for the Tribunal to review. Accordingly, I will dismiss the application.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.