ACC -v- MENTAL HEALTH TRIBUNAL [2025] WASCA 79 (23 May 2025)

(a) treatment in the community could reasonably be provided to the appellant;

(b) treatment of the appellant in the community would not be inconsistent with the appellant's need to be provided with treatment; and

(c) suitable arrangements could be made for the treatment and care of the appellant in the community.

1. On 15 October 2024, the SAT, constituted by Deputy President Jackson, ordered that the review application be dismissed under s 47 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
2. On 11 November 2024, the SAT published written reasons for its decision to dismiss the review application.[1]
3. Deputy President Jackson found that, under the MH Act, an inpatient treatment order made in relation to a person ceases to have effect upon the making of a community treatment order in relation to the same person. Therefore, the inpatient treatment order which was made on 29 June 2024, continued on 19 July 2024, and affirmed by the MHT on 22 July 2024, ceased to have effect upon the making of the community treatment order for the appellant on 9 August 2024.[2]
4. Deputy President Jackson referred to s 27(2) of the SAT Act, which provides that the 'purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review'. His Honour observed:[3]

If this application was to continue to be determined on its merits, the [SAT] would be tasked with determining whether, as at the date of its decision, that is, as at the date of [the SAT's] decision, the correct and preferable decision is to make the [inpatient treatment order].

In doing so, [the SAT] would not be concerned with whether or not the [MHT] 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 [MHT], and [the SAT] would be concerned with whether to make the [inpatient treatment order] as at the date it makes its decision.

As such, to the extent that the [appellant] remains aggrieved by the decision to make and continue the [inpatient treatment order] and the [MHT's] decision to affirm the decision to, in effect, continue the [inpatient treatment order] in operation, a review of the [MHT's] decision by [the SAT] will not assist her.

1. Deputy President Jackson was satisfied that the SAT review proceeding was manifestly groundless because the decision under review was no longer in effect.[4] His Honour held that s 47 of the SAT Act, which provides for the SAT to dismiss a proceeding if it believes the proceeding to be misconceived, 'may be used to dismiss a proceeding which, although valid when commenced, is no longer so'.[5] His Honour dismissed the review application on the basis that, while the review application was valid when made, the decision under review no longer existed and there was therefore nothing for the SAT to review.[6]

1. On 2 January 2025, the appellant commenced the current appeal to this court. As the appeal was commenced out of time, an extension of time is required. The right of appeal is provided for by s 503 of the MH Act in the following relevant terms:

decision or order means a decision or order of the [SAT] in the exercise of its jurisdiction under this Act.

(2) A person in respect of whom a decision or order is made who is dissatisfied with the decision or order may appeal, without leave, under [s 105 of the SAT Act] against the decision or order.

1. Under s 504 of the MH Act, the grounds of appeal can include, relevantly, that the SAT made an error of law or of fact or that there is another sufficient reason for hearing an appeal against the decision or order.
2. Therefore, unlike an ordinary appeal to this court under s 105 of the SAT Act, the appellant in this case does not require leave to appeal and the appeal is not confined to questions of law.
3. After some delay, the appellant, who is self‑represented, filed her appellant's case in the appeal on 13 April 2025. The appellant filed an amended appellant's case on 19 May 2025. Leave to amend in those terms was granted at the hearing on 23 May 2025. She appeals against the SAT's decision on six grounds, which, although sometimes inelegantly expressed, in essence raise the following two issues:
   1. Did the inpatient treatment order made in respect of the appellant cease to have effect when the first psychiatrist made the community treatment order on 9 August 2024?
   2. Did s 47 of the SAT Act empower the SAT to dismiss the review application, which was validly instituted under s 494 of the MH Act, on the basis that the inpatient treatment order had ceased to operate since the review application was instituted?
4. On 16 April 2025, the acting Court of Appeal registrar issued a notice for the parties to attend on 23 May 2025 for the court to consider whether, relevantly, the appeal should be dismissed on the basis that none of the grounds of appeal has a reasonable prospect of succeeding.
5. The principles governing the exercise of this court's jurisdiction to dismiss an appeal which has no reasonable prospect of succeeding were summarised in Farrant v Westpac Banking Corporation.[7] As we noted in that case, a ground of appeal has a reasonable prospect of succeeding if it has a rational and logical prospect of succeeding and, if upheld, the ground - either itself or in combination with other grounds that have a rational and logical prospect of succeeding - would result in the primary court's judgment or order being disturbed.

Disposition When the inpatient treatment order ceased to operate

1. In our view, the SAT was plainly correct to hold that the inpatient treatment order made in relation to the appellant ceased to operate when the first psychiatrist made the community treatment order on 9 August 2024. Deputy President Jackson saw this result as implicit in the terms of the MH Act. However, it is unnecessary to rely on an implication in this case as s 88(a) of the MH Act, properly construed, expressly provided for the inpatient treatment order to cease to operate at that time.
2. Section 21 of the MH Act provides that an involuntary patient is a person who is under an involuntary treatment order, which is an inpatient treatment order or a community treatment order. Section 4 defines an involuntary inpatient to mean a person who is under an inpatient treatment order.
3. Under s 22(1) of the MH Act, an inpatient treatment order is:

an order in force under this Act under which a person can be admitted by a hospital, and detained there, to enable the person to be provided with treatment without informed consent being given to the provision of the treatment.

1. By contrast, under s 23(1) of the MH Act, a community treatment order is:

an order in force under this Act under which a person can be provided with treatment in the community without informed consent being given to the provision of the treatment.

1. Under s 24(1) of the MH Act, only a psychiatrist may make an involuntary treatment order. Section 4 of the MH Act defines a 'psychiatrist' to be a medical practitioner who is:

(a) a Fellow of the Royal Australian and New Zealand College of Psychiatrists; or

(b) a person, or a person in a class of person, prescribed by the regulations for this definition[.]

1. Under reg 4A(2) of the Mental Health Regulations 2015 (WA), the following classes of person are prescribed for the purposes of the definition of 'psychiatrist' in s 4 of the MH Act:

(a) a medical practitioner who holds specialist registration under the Health Practitioner Regulation National Law (Western Australia) in the specialty of psychiatry;

(b) a medical practitioner who holds limited registration under the Health Practitioner Regulation National Law (Western Australia) that enables the medical practitioner to practise in the specialty of psychiatry.

1. Before making an inpatient treatment order, the psychiatrist must be satisfied, having regard to the criteria specified in s 25(1), that the person is in need of an inpatient treatment order.[8] One of the criteria specified in s 25(1) is that treatment in the community cannot reasonably be provided to the person.[9] Under s 24(6), an inpatient treatment order must be in force for as brief a period as practicable, be reviewed regularly and be revoked as soon as practicable after the person no longer meets the criteria for the order.
2. Subject to presently immaterial exceptions, s 386 of the MH Act requires the MHT, as soon as practicable and in any event within 35 days from the day an inpatient treatment order is made in relation to an adult patient, to review the inpatient treatment order to decide whether or not the involuntary patient is still in need of the inpatient treatment order having regard to the criteria specified in s 25 of the MH Act. Section 390 of the MH Act allows an involuntary patient to apply to the MHT for review of an inpatient treatment order. Under s 395 of the MH Act, on review the MHT may make any orders it considers appropriate including an order revoking the inpatient treatment order. Under s 494(1) of the MH Act, a person in respect of whom the MHT makes a decision who is dissatisfied with the decision may apply to the SAT for a review of the decision.
3. Under s 86 of the MH Act, an inpatient treatment order authorises the involuntary inpatient's admission as an inpatient by a relevant hospital and the patient's detention there 'for the period authorised by this Act for which the inpatient can be detained under this Act'. Under s 87, the period specified in an inpatient treatment order as the period for which an adult patient can be detained under the order cannot exceed 21 days from the date the order is made.
4. Section 89(1) of the MH Act requires the treating psychiatrist to ensure that, on or within 7 days before the day on which the detention period for an inpatient treatment order ends, the involuntary inpatient is examined by a psychiatrist. Under s 89(2), the examining psychiatrist may continue the inpatient treatment order for a further specified period of up to three months if satisfied that the involuntary inpatient is still in need of an inpatient treatment order. Otherwise, the examining psychiatrist must either make a community treatment order or an order revoking the inpatient treatment order.
5. Section 90(1) of the MH Act provides:

A psychiatrist may make either of these orders during the detention period -

(a) if satisfied, having regard to the criteria specified in section 25, that the involuntary inpatient is no longer in need of the inpatient treatment order but is in need of a community treatment order - a community treatment order in respect of the inpatient;

(b) if satisfied, having regard to the criteria specified in section 25, that the involuntary inpatient is no longer in need of an involuntary treatment order - an order revoking the inpatient treatment order.

An inpatient treatment order authorises the involuntary inpatient's detention until the first of these things occurs -

(a) a psychiatrist makes an order under section 89(2)(b) or 90(1)(a) in respect of the involuntary inpatient;

(b) a psychiatrist revokes the order under section 89(2)(c) or 90(1)(b);

(c) the expiry of the detention period unless the detention of the involuntary inpatient under the inpatient treatment order has been continued under a continuation order.

1. In making the community treatment order for the appellant on 9 August 2024, the first psychiatrist expressed the view that the appellant could be treated in the community. It followed that the first psychiatrist must have been satisfied that the criterion for the making of an inpatient treatment order specified in s 25(1)(d) of the MH Act was no longer satisfied. The terms of the community treatment order indicated that the first psychiatrist was satisfied that the appellant was no longer in need of the inpatient treatment order but was in need of a community treatment order. The making of the community treatment order on 9 August 2024 was therefore an exercise of the power conferred by s 90(1)(a) of the MH Act. Section 88(a) of the MH Act expressly provided that the earlier inpatient treatment order made for the appellant ceased to authorise the appellant's admission and detention as an inpatient from the time the community treatment order was made under s 90(1)(a) of the MH Act.
2. In any event, even if, as the appellant contends, the inpatient treatment order made in relation to her did not expire when her community treatment order was made on 9 August 2024, it would have expired on 19 October 2024 under s 88(c) of the MH Act. Even if (contrary to the view we have just expressed) the SAT erred in finding that the appellant's inpatient treatment order expired on 9 August 2024, it has clearly expired now. Any such error by the SAT could not justify this court now setting aside the SAT's decision dismissing the review application.

1. There could be no utility in the SAT reviewing the MHT's decision to affirm the making of an inpatient treatment order which has expired. Even if the SAT were to substitute an order revoking the inpatient treatment order, that would not involve any conclusion about the validity of the inpatient treatment order when it was made and continued by the relevant psychiatrists. On any view, the inpatient treatment order has no continuing effect on the rights, duties and liabilities of any person including the appellant.
2. The appellant submitted that the proper processes for her involuntary detention as an inpatient had not been followed, and that the treating health professionals, the MHT and the SAT had not listened to her concerns. The appellant explained that she would seek to contend in the SAT that the person who made the inpatient treatment order on 29 June 2025 and the community treatment order on 9 August 2024 was not a 'psychiatrist' as defined in the MH Act who was authorised to make those orders. If that were the case, then the appellant may have other avenues of redress. However, the decision of the SAT on a review application would neither preclude nor, as a matter of law, facilitate the appellant seeking that redress.
3. Once the decision under review has ceased to have any operative effect, the proceedings for review of that decision are properly described as frivolous, misconceived or lacking in substance within the meaning of s 47(1)(a) of the SAT Act, which relevantly provides:

(1) This section applies if the [SAT] believes that a proceeding -

(a) is frivolous, ... misconceived or lacking in substance ...

(2) If this section applies, the [SAT] may order that the proceeding be dismissed or struck out and make any appropriate orders.

(3) The [SAT's] powers to act under subsection (2) are exercisable only by a legally qualified member.

(4) The [SAT] may act under subsection (2) on the application of a party or on its own initiative.

1. Nothing in the text, context or purpose of this provision limits the exercise of the power to a proceeding which was frivolous, misconceived or lacking in substance when it was instituted. There is no proper basis for construing the SAT Act as denying the availability of the power conferred by s 47 where, due to a change in the relevant law or a change in circumstances, a review application which was properly instituted has become frivolous, misconceived or lacking in substance. Parliament cannot have objectively intended to confine the SAT's power to dismiss a proceeding that is frivolous, misconceived or lacking in substance to a proceeding that could have been characterised in that way when it was instituted. There is no proper basis for construing the SAT Act as requiring the SAT to continue an exercise which has become pointless.
2. Nothing in the appellant's grounds of appeal or submissions in support of those grounds provides any proper basis for doubting the correctness of the SAT's order dismissing the review application under s 47 of the SAT Act.

1. For the above reasons, after hearing from the appellant on 23 May 2025, we dismissed the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] ACC and Mental Health Tribunal [2024] WASAT 120 (primary decision).

[7] Farrant v Westpac Banking Corporation [2024] WASCA 157 [17] - [20].