Briginshaw v Briginshaw

Administrative Tribunals - Internal review - Evidence and procedure - SACAT not bound by rules of evidence - SACAT not bound by the Briginshaw principle

South Australian Civil and Administrative Tribunal Act 2013 s 39

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Sullivan v Civil Aviation Authority [2014] FCAFC 93

This is an edited version of the Tribunal's statement of reasons issued pursuant to section 81 of the Guardianship and Administration Act 1993. The protected person has been de-identified and allocated a randomly selected pseudonym for privacy reasons. Other details that may lead to the identification of the protected person may have also been anonymised or omitted. These changes do not affect the Tribunal's decision or its reasons for decision.

1. The applicant sought an internal review of the Tribunal decision of 14 September 2015 made under section 74 of the Guardianship and Administration Act 1993. The decision directed

"...the joint full guardians of LEM to provide written consent to Dr SS, treating psychiatrist at the Lyell McEwin Hospital to administer a course of [Electroconvulsive Therapy (ECT)] to LEM. The written consent should extend to the administration of anaesthetics required for the purposes of the ECT treatment. The maximum number of episodes of ECT treatment is 12 episodes within 3 months."

2. The Public Advocate and LEM's father were appointed joint full guardians of LEM on 12 February 2015.

3. LEM suffers from treatment resistant schizophrenia. He was recently admitted to the Psychiatric Intensive Care Unit (PICU) at Lyell McEwin Hospital from James Nash House due to an acute relapse of his psychiatric condition in the context of medication non-compliance. After the hearing on 14 September 2015 LEM was moved to Glenside Hospital. He is currently detained under a Level 2 Inpatient Treatment Order.

4. At the internal review hearing attempts were made to contact LEM by phone and video-link but the Tribunal was unable to reach him. The internal review hearing was conducted in his absence. However, LEM was represented by his lawyer, Mr Chris Swan. LEM's father and counsel for the Public Advocate also participated at the hearing. Mr Swan and LEM's father accepted that the hearing should proceed in the absence of LEM. It was made clear to the Tribunal that LEM strongly opposes undergoing ECT.

5. During the internal review hearing Dr SS participated by video-link. Dr SS stated that LEM continues to refuse medication, which negatively affects his condition. He further stated that LEM lacks insight into his condition and does not believe that he is mentally unwell.

6. Dr SS stated that LEM previously had a good response to ECT treatment in 2002. He expected that there would be a 25 to 30 percent improvement in the condition of the patient if ECT were administered. It was hoped that this improvement would then assist with getting LEM take his medication.

7. Dr SS stated that there has been some small improvement in the behaviour of LEM since he has been moved from the Lyell McEwin Hospital to Glenside Hospital. Dr SS stated that he would be willing to wait and monitor the condition of LEM for a period of approximately four weeks before deciding whether to go ahead with any ECT.

8. In a case such as this the appropriate procedure is for the treating medical practitioner to apply directly to the Tribunal under the Mental Health Act 2009, rather than that the guardian(s) apply for directions. The reason for this is that the Mental Health Act sets up its own scheme for the administration of ECT. The existence of that specific power operates to limit the general power to apply for directions under the Guardianship and Administration Act. That is to say that the general provisions in the Guardianship and Administration Act must give way to the specific provisions in the Mental Health Act. The Tribunal has therefore approached the application on the basis that it is dealing with a request for authorisation of ECT under s 42 of the Mental Health Act. The Tribunal has therefore had regard to the objectives of the Mental Health Act in addition to the objectives of the Guardianship and Administration Act.

9. It was suggested that the Tribunal should apply the Briginshaw principle when deciding the need for ECT. We reject that submission. We prefer the view expressed by the Full Federal Court in Sullivan v Civil Aviation Authority [2014] FCAFC 93 that a tribunal such as SACAT is not bound by the principle in Briginshaw. That is because SACAT is not bound by the rules of evidence (s 39 of the South Australian Civil and Administrative Tribunal Act) of which the principle in Briginshaw forms a part.

10. In light of the evidence of the treating psychiatrist, including that the decision as to the administration of ECT could be deferred for a period of approximately four weeks, the Tribunal considers that it is not in the immediate best interests of LEM to undergo ECT. The Tribunal also notes that the evidence does not establish a strong link between the ECT treatment in 2002 and the improvement in LEM's condition. The Tribunal does not pre-empt the possible need in the future for ECT treatment but that depends on the willingness of LEM to agree to the administration of medication and his response to that medication.

11. The Tribunal notes that a period of about four weeks would coincide in any event with the time at which it will be necessary to come back to the Tribunal to make an application for a further Level 2 Inpatient Treatment Order. If there were perceived to be a clinical need for ECT at that point then the two matters might be dealt with together.