B v St Vincent's Hospital Sydney Limited

THE TRIBUNAL'S REASONS FOR DECISION

1. The Tribunal's reasons for decision include the following explanation for the order (edited to maintain anonymity): "The Tribunal was satisfied that [the plaintiff] was experiencing symptoms of mental illness that meant it was very likely he would lapse into an active phase of the illness if not discharged on a Community Treatment Order. Discharge on an order was the least restrictive alternative consistent with safe and effective care for [him]. The only available accommodation for [him] was at Matthew Talbot House; no other care of a less restrictive kind was available to him. The House was prepared to accept him into its care if he was supported by the community team pursuant to a Community Treatment Order. The terms of the treatment plan were appropriate and capable of implementation by the Community Mental Health Service. It was likely [the plaintiff] would need support from the community team for the six months of the order. The Tribunal was not prepared to grant [the plaintiff's] request for an adjournment. He was informed that his request to submit [additional material comprising three medical reports made by medical practitioners who had been consulted by him some years before his current admission to the Caritas Centre] was made too late to allow the Tribunal to act on it, that notice of his intention to request access to further information needed to have been given before the hearing began, perhaps at the time he was advised of the hearing date (the day before the hearing, on 26 November 2015). The Tribunal was satisfied that there was sufficient evidence before it to support the application for a Community Treatment Order and that it was unlikely that any further material [the plaintiff] wished to submit would have a bearing on the decisions to be made under section 53."

THE NATURE OF THESE PROCEEDINGS

1. The Mental Health Act provides two avenues of appeal from the Tribunal's order: S v South Eastern Sydney and Illawarra Area Health Service [2010] NSWSC 178 at [22]. Section 67, relevantly, provides an appeal "on any question of law or fact arising from the order or its making". Section 163 provides a right of appeal which, by virtue of section 164(2), is by way of a new hearing.
2. Because the right of appeal for which section 163 provides appears to be broader than that for which section 67 provides, the parties acquiesced in the plaintiff's appeal being treated as an appeal under section 163.
3. In deference to section 162 (which prohibits publication of the names of people involved in proceedings before the Tribunal), pseudonyms are used in this judgment to maintain the anonymity of the plaintiff and others associated with the Tribunal proceedings.
4. In order: (a) to avoid collateral inquiries about whether the plaintiff is a "person under legal incapacity" within the meaning of section 3(1) of the Civil Procedure Act 2005 NSW, as extended by rule 7.13 of the Uniform Civil Procedure Rules 2005 NSW; and (b) not to subvert the right of appeal for which section 163 of the Mental Health Act provides, I propose, in disposition of the appeal, to order that any requirement for the plaintiff to have a tutor, for the purpose of the hearing and determination of the appeal, be dispensed with: M v Mental Health Review Tribunal and Ors [2015] NSWSC 1876 at [12]-[13], citing P v NSW Trustee and Guardian [2015] NSWSC 579 at [160]-[167].
5. On the hearing of the plaintiff's appeal, because the appeal is by way of a new hearing, the defendant bears an onus of establishing its case for a Community Treatment Order, and the Court must consider afresh whether such an order should be made: Z v Mental Health Review Tribunal [2015] NSWCA 373 at [7], [173]-[174] and [181]. The appeal is not a rehearing of the Tribunal's determination in which the plaintiff bears an onus of establishing error in the decision, or decision making processes, of the Tribunal.
6. Section 164(5) empowers the Court to hear and decide an appeal with assistance from assessors, should it consider that appropriate. Neither party invited the Court to sit with assessors. The appeal has been heard by me sitting as a judge alone. It is not necessary, or appropriate, to delay a determination of the appeal for the purpose of seeking the assistance of assessors. I have the benefit of medical evidence, all tending in the same direction, and a personal appearance by the plaintiff before the Court.
7. As confirmed by Z v Mental Health Review Tribunal [2015] NSW CA 373 at [7], the determination of a section 163 appeal requires the Court to be satisfied as to each of the statutory preconditions to the making of a Community Treatment Order, taking into account matters required by the Mental Health Act to be considered.
8. The matters about which the Tribunal was required to be satisfied in making the order under appeal, and about which the Court must be independently satisfied on appeal if the order is to be allowed to stand, are, essentially, those set out in section 53 of the Mental Health Act.

THE PLAINTIFF'S CIRCUMSTANCES

1. Before addressing the particular criteria required to be addressed, it is appropriate to say something of the plaintiff's personal story, and the parties' shared perception of the central issue to be addressed in determination of the appeal.
2. The plaintiff was born in 1970 and is presently aged 45 years. In December 1985, aged 15 years, he was involved in a motor vehicle collision as a result of which he suffered brain damage, a frontal lobe injury.
3. In these proceedings the defendant contends, and the plaintiff denies, that, independently of the brain damage from which he continues to suffer, the plaintiff suffers from a mental illness.
4. In the parties' perception, the central issue is whether the plaintiff does suffer from a mental illness or whether aberrant behaviour on his part is no more than a normal incident of the brain damage from which he, admittedly, continues to suffer.
5. Implicit in this statement of the case is the defendant's contention, denied by the plaintiff, that the plaintiff needs the current Community Treatment Order if he is to be permitted to live within the general community.

THE EVIDENCE ADDUCED ON THE HEARING OF THE APPEAL

1. The evidence adduced by the defendant in support of the order under appeal comprises: (a) an affidavit sworn on 15 March 2016 by Dr C; (b) a report dated 16 March 2016 by Dr N, a visiting psychiatrist attached to the psychiatric clinic of Matthew Talbot Hostel; and (c) clinical records of St Vincent's Hospital relating to treatment of the plaintiff, including a report dated 26 November 2015 prepared by Dr C for presentation to the Tribunal in support of the order presently under appeal.
2. The evidence adduced by the plaintiff comprised: (a) the three medical reports he had desired to place before the Tribunal on 27 November 2015; (b) a transcript of criminal proceedings before the Supreme Court of the Australian Capital Territory on 30 November 2011 evidencing that, on a charge of damage to property, he was found "not guilty by reason of mental impairment"; and (c) an extract from a publication entitled Brain Damage Medico-Legal Aspects (1994) attributed to the late RWR Parker QC.
3. The medical reports, apparently prepared in connection with his defence of criminal proceedings, respectively bear the dates 10 April 2012, 14 June 2013 and 6 August 2013.
4. The evidence adduced by the plaintiff is, in substance, corroborative of the case advanced by the defendant in opposition to the appeal. The plaintiff's reliance upon it is indicative of the lack of insight attributed to him by more than one doctor over a substantial period of time.
5. The affidavit of the defendant's consultant psychiatrist (Dr C) and the report of the plaintiff's treating psychiatrist at Matthew Talbot Hostel (Dr N) are to similar effect.
6. For convenience, I set out the following extracts from Dr C's affidavit (edited in the interests of anonymity): "Admission 9 November 2015 to 27 November 2015 [17] … [On] 9 November 2015 [the plaintiff] was admitted to Caritas inpatient unit as an involuntary patient and commenced on Paliperidone 3mg nocte with which he was non-compliant and refused. He was then re-initiated on Paliperidone depot injection which he tolerated without issue. [18] [The plaintiff's] mental state improved during his admission, although he continued to express ongoing grandiose ideas about him inheriting large sums of money, winning one million pounds from Google. His insight remained quite poor, denying any change in his mental state and dismissing the need for medication and ongoing treatment. [19] [The plaintiff] suffers from a mental illness and the diagnosis was a Manic episode in the context of Bipolar Affective Disorder. In addition he has a well documented history of major head injury at the age of 15 years. It is probable that the head injury predisposed [him] to developing his Bipolar Affective Disorder. Treatment Plan [20] [The plaintiff] was commenced on a depot Paliperidone in hospital and it was decided to apply for Community Treatment Order (CTO) with a view to continuing this treatment as well as support and case management from the St Vincent's mental health service. [21] The [rationale] for the CTO application was that he has the following symptoms of mental illness when unwell: grandiose delusions, severe disturbance of mood in particular irritability and elevated mood and finally irrational behaviour especially his repeated presentations to State institutions causing a nuisance. [22] There are also a number of serious risks related to his mental illness and these include harm to self via misadventure, harm to his reputation and finally harm to others. He was irritable as well as verbally aggressive and felt at risk of being physically aggressive. … [26] [Following the making of the Community Treatment Order presently under appeal, the plaintiff] continues to have no insight into his current mental illness and the need for treatment, and without a Community Treatment Order, is unlikely to continue with such treatment. Without a Community Treatment Order, [the plaintiff] would almost certainly relapse into an acute phase of his mental illness and require ongoing inpatient treatment to ensure medication compliance. I believe that a Community Treatment Order is the least restrictive means of care while keeping within a safe and effective treatment. [28] [The plaintiff] has been administered the Paliperidone treatment on 23 December 2015 and 22 January 2016 and on 19 February 2016 as evidenced in the St Vincent's Hospital CHIME clinical notes. [29] [The plaintiff] appears to be responding well to the current medication and has done so previously. This confirms the efficacy of the current medication within the framework of a Community Treatment Order. [30] [The plaintiff] has a well documented history of refusing to accept appropriate treatment. This stems from his lack of insight and his belief that his psychiatric symptoms and illness are purely due to a frontal lobe syndrome secondary to his head injury. Adjunct/Alternative Treatments Offered [31] In my opinion there was (and is) no safe alternative to treatment involuntarily under a Community Treatment Order and the medication prescribed was chosen on the basis of previous response and that it was well tolerated by [the plaintiff]. in addition the St Vincent's Community Mental Health Service is providing ongoing support, monitoring and education to [the plaintiff] about his mental illness via psycho-education, liaison with Matthew Talbot and other agencies and advocacy as required. This is being provided via community case management as well as medical review of his treatment."
7. The plaintiff's presentation before the Court on the hearing of the appeal was consistent with this portrait of him, save that his demeanour was uniformly quiet, respectful and submissive.
8. The report of the plaintiff's treating psychiatrist at the primary health care clinic of Matthew Talbot Hostel (Dr N) is, in substance, in the following terms (again, edited to preserve anonymity): "[The plaintiff] has been a patient under my care intermittently at the psychiatric clinic of Matthew Talbot Hostel. He came to Sydney from the ACT, where he had been treated with antipsychotic medication given by long acting injection. However, he maintained that he did not have a mental illness, and that his presentation was entirely due to the effects of a serious head injury sustained at the age of fifteen. He did have features of frontal lobe injury. However, his neurological and cognitive function was surprisingly intact. Over time, [he] became increasingly manic, and it became clear that he did in fact have a relapsing mental illness. He was finally admitted to the psychiatric ward of Concord Hospital under the Mental Health Act at the initiative of the police, and was detained in hospital for a month, and discharged on a combination of antipsychotic medication (paliperidone, 150 mg every four weeks) and the mood stabiliser valproate in tablet form. [The plaintiff] was markedly improved after resuming treatment, as he was less grandiose and more realistic in his conversation. However, he became preoccupied with his treatment and all consultations revolved around his requests to reduce and stop the medication. He did eventually stop the treatment once he had established that there was no legal requirement for him to take it (customarily, residents at this hostel are required to adhere to prescribed treatment, but clearly that is not enforceable). After he .stopped medication, there was a progressive deterioration in his mental state, with increased grandiosity, irritability and intrusiveness, which culminated in a further admission to hospital under the Mental Health Act. When unwell, [the plaintiff's] ability to maintain housing and care for himself in other ways is quite impaired. Moreover, he is far more likely to come in conflict with others and become involved in vexatious litigation. I believe he requires treatment as a condition of a CTO, as he does not recognise the need for treatment and would refuse treatment and become unwell otherwise."

FINDINGS

1. I accept the evidence of both Dr C and Dr N. I adopt their analyses of the reasons why (to paraphrase section 53(1) of the Mental Health Act) the plaintiff is, as I hold, a person who should be the subject of the order under appeal.
2. Their evidence carefully addresses each of the criteria which the Court is required by section 53 to consider. The treatment plan for the plaintiff underlying the challenged order is appropriate to the plaintiff's circumstances and is being implemented in an orderly manner. I am satisfied that no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the plaintiff: section 53(3)(a). I am satisfied that the plaintiff is benefiting, and stands to benefit, from the Tribunal's order as the least restrictive alternative consistent with safe and effective care: section 53(3)(a). I am satisfied both that the plaintiff has a previous history of refusing to accept appropriate treatment (section 53(3)(c)) and that he is likely to relapse into an active phase of mental illness if the order under appeal were to be set aside (section 53(3A)). I am satisfied that the unexpired duration of the order under appeal is appropriate for stabilisation of the conduct of the plaintiff, and (re)establishment of a therapeutic relationship between the plaintiff and his psychiatric case manager: section 53(7).
3. In expressing my satisfaction on these points I notice that the protective care of service providers, bound to advance his welfare and interests as the (or, at least, a) paramount consideration, continues to surround the plaintiff's daily life: Mental Health Act, sections 3, 68 and 105; A (by his tutor Brett Collins v Mental Health Review Tribunal (No 4) 2014 NSWSC 31 at [116]-[117], [123]-[125], [145]-[147] and [164].

CONCLUSION

1. Having made fresh, substantive determinations required of the Court under the Mental Health Act in determination of the plaintiff's appeal, the appropriate form of order for disposition of the appeal is an order that the appeal be dismissed.
2. Accordingly, I make the following orders: 1. ORDER that any requirement for the plaintiff to have a tutor for the purpose of the hearing and determination of these proceedings be dispensed with. 2. ORDER that the proceedings be dismissed.

Amendments 12 April 2016 - In paragraph 22 "damage to property" was substituted for "theft". 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: 12 April 2016