Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 60

Mental Health Act 2015 ss 9, 10, 11, 80, 81, 82, 83, 84, 85, 91

Cases cited: George v Rockett [1990] HCA 26; (1990) 170 CLR 104

McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423

1. On 24 July 2017, a doctor at the Canberra Hospital Adult Mental Health Unit (AMHU) authorised involuntary detention and involuntary treatment, care and support for a person (referred to in these reasons as 'ED'[1]) for a period not exceeding three days pursuant to section 85(1) of the Mental Health Act 2015 (the Act). The involuntary detention commenced at 10:45am on 24 July 2017.
2. On 27 July 2017, ED's treating psychiatrist[2] applied to the Tribunal for ED's involuntary detention to be extended for a further period not longer than 11 days pursuant to section 85(2) of the Act. On the same day, the Tribunal made an order authorising ED's detention for a further period of up to 11 days to expire at 10:45am on 7 August 2017.
3. By this means, ED's involuntary detention was authorised for up to 14 days in total from when it commenced on 24 July 2017.
4. On Friday, 28 July 2017, ED applied to the Tribunal under section 85(4) of the Act for review of his involuntary detention.
5. Under section 85(5) of the Act, the Tribunal was required to conduct its review within two working days after the day the application for an extension of the period of detention was made.
6. On Monday, 31 July 2017, I conducted a hearing at the AMHU to review ED's involuntary detention. Under section 85(6) of the Act, I was permitted to consider ED's application for review of his involuntary detention without holding a hearing. However, in this case, I elected to hold a hearing. I did so primarily because I did not know the basis upon which ED had applied for review. To conduct a hearing was also an expedient and practical means of enabling ED to put his case.
7. ED attended the hearing and was represented by his solicitor, Ms A Banks. ED's two treating psychiatrists and ED's mother also attended the hearing. At the conclusion of the hearing, I confirmed the Tribunal's order made on 27 July 2017 and gave oral reasons for doing so.
8. On 14 August 2017, ED applied for a statement of reasons for the Tribunal's order made on 31 July 2017.
9. Section 60 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) provides a procedure regarding provision of a statement of reasons. It states:

(a) the tribunal makes an order on an application; and

(b) within 14 days after the day the order is made, a party asks for a statement of reasons for the making of the order.

(2) The tribunal must give the party a written statement of reasons or a transcript of an oral statement of reasons for the making of the order.

(a) any principles of law relied on by the tribunal; and

(b) the way in which the tribunal applied the principles of law to the facts.

Note For what must be included in a statement of reasons, see the Legislation Act, s 179.

(4) This section does not apply to an order under section 53 (Interim orders) or an order of a procedural nature.

1. Under section 60(2) of the ACAT Act, I could have provided ED with a transcript of the reasons I gave on 31 July 2017. However, I have elected instead to provide ED with the following written statement of reasons drawn from the transcript.

1. Chapter 6 of the Act, comprising sections 80-92, deals with emergency detention and what may or must occur prior to and during involuntary detention. The sections are heavily interrelated and must therefore be read together. Relevant to this case, section 85 provides for authorisation of involuntary detention but is dependent on sections 80, 81 and 84 for its operation.
2. Section 85 of the Act provides:

85 Authorisation of involuntary detention

_(1) A doctor may authorise the involuntary detention and treatment, care or support of a person at an approved mental health facility for a period not exceeding 3 days if - _

_(a) the doctor has conducted an initial examination of the person under section 84 and, on the basis of that examination and any other information the doctor is given, has reasonable grounds for believing that - _

(i) the person requires immediate treatment, care or support; and

(ii) the person has refused to receive that treatment, care or support; and

(iii) detention is necessary for the person's health or safety, social or financial wellbeing, or for the protection of someone else or the public; and

(iv) adequate treatment, care or support cannot be provided in a less restrictive environment; and

(b) another doctor has also examined the person and, on the basis of that examination and any other information the doctor is given, also has reasonable grounds for believing the matters mentioned in paragraph (a) (i) to (iv).

(2) Before the end of the 3-day period of detention, the chief psychiatrist may apply to the ACAT to extend the period of detention if the chief psychiatrist believes on reasonable grounds that the person continues to meet the criteria mentioned in subsection (1) (a) (i) to (iv).

(3) If an application is made under subsection (2), the ACAT may order that the period of detention be extended by the period, not longer than 11 days, stated in the order.

(4) A person may apply to the ACAT for the review of involuntary detention under this section.

(5) If an application is made under subsection (4), the ACAT must conduct the review within 2 working days after the day the application is made.

(6) The ACAT may consider an application under subsection (2) or (4) without holding a hearing.

1. Numerous preconditions must be met before a doctor may, under section 85(1) of the Act, "authorise the involuntary detention and treatment, care or support of a person at an approved mental health facility".
2. First, under section 85(1)(a), 'the doctor' - meaning as a matter of statutory structure the doctor who proposes to authorise the involuntary detention and the treatment, care and support - must have conducted an initial examination of the person under section 84 of the Act.
3. Section 84 "applies to a person (the subject person) detained at an approved mental health facility under section 81."[3]
4. Section 81 of the Act authorises detention of a person at an approved mental health facility in two circumstances, as set out in sections 81(1) and 81(2). Those subsections provide:

81 Detention at approved mental health facility

(1) If a person is taken to an approved mental health facility under section 80 or the Crimes Act, section 309 (1) (a) (Assessment whether emergency detention required), the person in charge of the facility must detain the person at the facility.

(2) If a doctor or mental health officer believes on reasonable grounds that a person attending an approved mental health facility (voluntarily or otherwise) is a person to whom section 80 (2) (a) to (e) applies, the doctor or mental health officer may detain the person at the facility.

1. ED was not taken to AMHU under section 80 of the Act (which deals with apprehension of a person and taking the person to an approved mental health facility) or section 309(1)(a) of the Crimes Act. Section 81(1) was therefore not applicable.
2. ED was taken to AMHU because of concerns about his behaviour. Section 81(2) therefore applied regarding his detention. It does not matter whether ED was taken to AMHU "voluntarily or otherwise". Either way, section 81(2) applies. Several factors are of note.
3. First, detention is discretionary, arising from the word 'may' in section 81(2), unlike detention under section 81(1) where detention is mandatory, arising from the word 'must'.
4. Second, in order for the person to be detained, the doctor or mental health officer must believe on reasonable grounds that the person "is a person to whom section 80(2)(a) - (e) applies".
5. Section 80(2)(a) - (e) of the Act provides:

_(2) A doctor or mental health officer may apprehend a person and take the person to an approved mental health facility if the doctor or mental health officer believes on reasonable grounds that - _

(a) the person has a mental disorder or mental illness; and

(i) the person requires immediate treatment, care or support; or

(ii) the person's condition will deteriorate within 3 days to such an extent that the person would require immediate treatment, care or support; and

(c) the person has refused to receive that treatment, care or support; and

(d) detention is necessary for the person's health or safety, social or financial wellbeing, or for the protection of someone else or the public; and

(e) adequate treatment, care or support cannot be provided in a less restrictive environment.

1. Third, by the pathway set out in sections 80(2)(a), 81(2) and 84, although not stated in section 85(1), it becomes clear that a precondition of ED's detention under section 85 was that the doctor who authorised ED's involuntary detention and his treatment, care and support believed on reasonable grounds that ED had a mental disorder[4] or a mental illness.[5]
2. Being in the nature of emergency detention, section 80(2)(a) did not require a diagnosis that ED had a mental disorder or mental illness. A belief "on reasonable grounds" was sufficient. It is not the point if the doctor, on further review or arising from later treatment, care and/or support, were later to conclude that there are not, or are no longer, reasonable grounds for that belief. A later revised view does not affect the lawfulness of a person's detention at the time he or she was detained, but it would trigger an obligation to release under section 91 of the Act which provides:

(1) If a relevant entity is satisfied that the detention of a person under section 85 is no longer justified, the entity must, as soon as practicable, order the release of the person for the period of detention authorised under that subsection expires.

1. For a doctor to have 'reasonable grounds for believing' that the criteria under section 85(1) are met differs from a doctor reasonably believing that the criteria are met. The former is an objective test. The latter a subjective one. While a doctor may assert that he or she has or had reasonable grounds for believing the factual circumstances described in section 85(1)(a)(i) - (iv), that is not the test. Whether there are reasonable grounds for a belief must be approached, objectively, from the viewpoint of a reasonable decision maker.
2. In George v Rockett,[6] the High Court (per Mason CJ, Brennan, Dean, Dawson, Toohey, Gaudron and McHugh JJ) explained the significance of the phrasing as follows:

When a statute prescribes that there must be "reasonable grounds" for a state of mind - including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person. ... That requirement opens many administrative decisions to judicial review and precludes the arbitrary exercise of many statutory powers: see, for example, Attorney-General v Reynolds [1980] AC 637. Therefore it must appear to the issuing justice, not merely to the person seeking the search warrant, that reasonable grounds for the relevant suspicion and belief exist.[7]

1. In McKinnon v Secretary, Department of Treasury (McKinnon),[8] the High Court made similar observations on the question whether, on review by the Administrative Appeals Tribunal, there were reasonable grounds for a claim that disclosure of a document would be contrary to the public interest. The High Court said:

10. This is an objective test. George v Rockett was concerned with Queensland legislation empowering the issue of a search warrant if there were reasonable grounds for suspecting that there was incriminating evidence in a house. The statutory formula, however, is widely used. The point of the objectivity of such a test, when it is necessary to consider whether a primary decision-maker had reasonable grounds for a given state of mind, is that the question is not whether the primary decision-maker thinks he or she has reasonable grounds.

11. To decide whether it was reasonably open to a decision-maker, on the evidence, to make a judgment such as ... whether there are reasonable grounds for a claim that a course of action (such as disclosure of a document) would be contrary to the public interest, involves an evaluation of the known facts, circumstances and considerations which may bear rationally upon the issue in question. ...

12. Where a claim, or an argument, or a conclusion or some other state of mind (such as suspicion, or belief, or satisfaction) involves an interplay of observation (of objective facts and circumstances), opinion, and judgment (which may involve an evaluation of matters such as reasonableness of conduct, or of the public interest), the question whether there are reasonable grounds for such a claim, or argument, or state of mind requires a consideration of all relevant matters and an assessment of the reasonableness of the claim, or argument, or state of mind having regard to all relevant considerations. It is not a hypothetical question. It is a question to be answered in the light of all the known circumstances. This applies to all relevant considerations whether they be matters of objective fact (as in the example given), or of opinion, or of argument. Until all relevant considerations, that is, all (known) considerations that could have a rational bearing upon the claim, or state of mind, or decision under review, are taken into account, it is impossible to form a just and fair judgment whether, objectively considered, there are reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest. It is not enough for the Tribunal to ask whether there are facts, or opinions, or arguments that rationally bear upon that topic. All relevant matters must be taken into account; not for the purpose of deciding whether the Tribunal agrees with the Minister, but for the more limited purpose of deciding whether there are reasonable grounds for the claim which the Minister accepted.

1. Applying these statements of principle to section 85 of the Act, it is not to the point that the doctor who conducted the initial examination of the person under section 84 of the Act reasonably believes that the facts and circumstances described in section 85(1)(a)(i) - (iv) are made out. Section 85(1)(a) requires the existence of facts, objectively judged, which are sufficient to induce a state of mind in a reasonable person (referenced to a reasonable and appropriately skilled doctor) that the facts and circumstances described in section 85(1)(a)(i) - (iv) exist and hence the criteria for involuntary detention are met.
2. Likewise, on review under section 85(4), the task of the Tribunal is to ascertain, objectively, whether all the relevant facts and circumstances support that state of mind in a reasonable person at the time of the review. The review is of the person's involuntary detention authorised by the doctor, whether that be during the initial three days authorised by the doctor under section 85(1) or during an extended period authorised by the Tribunal under section 85(3).
3. On review, the Tribunal does not decide in the exercise of its discretion whether involuntary detention should continue. That is always for the doctor to decide. The Tribunal's role is only to review whether the doctor has reasonable grounds for his or her belief that the criteria in section 85(1)(a)(i) - (iv) continue to be met. If so, involuntary detention may continue.[9]
4. The Tribunal's role, on review, is to consider not just the facts put forward by the doctor as to why - objectively judged - there are reasonable grounds for why the criteria are met, but also anything that the subject person says. As stated in McKinnon, the Tribunal is required to take into account all relevant considerations. To adopt a phrase from McKinnon,[10] the facts advanced by the doctor "is not the end; it is the beginning" as to whether there are reasonable grounds for the doctor believing that the facts and circumstances described in section 85(1)(a)(i) - (iv) are made out.
5. Several further aspects of section 85 should be noted.
6. Save for the question of refusal in section 85(1)(a)(ii) which I deal with below, section 85 is written in the present tense. At each stage, whether that be when the doctor is considering whether to authorise involuntary detention and treatment, care or support for a period not exceeding three days under section 85(1), or when applying for an extension of the period of detention under section 85(2), or when responding to a person's application to the Tribunal for review of his or her involuntary detention, the doctor must be guided by whether he or she has, or continues to have, reasonable grounds for believing that the person meets the criteria described in section 85(1)(a)(i) - (iv).
7. This is an important consideration, given that Chapter 6 of the Act is about emergency detention of a person who requires immediate treatment, care or support and involuntary detention to facilitate that treatment, care or support. In situations of this kind, circumstances can quickly change. The reasonable grounds for why a doctor authorised involuntary detention at a particular time might cease to apply. For example, within a few days after a doctor has authorised involuntary detention, it may become clear that "adequate treatment, care or support [can] be provided in a less restrictive environment" such that the criterion in section 85(1)(a)(iv) is no longer met.
8. The Tribunal is under the same obligation when conducting a review of involuntary detention. The question is whether the facts and circumstances described in section 85(1) are met at the time the review is conducted, irrespective of whether the necessary facts and circumstances existed at the time the doctor authorised initial detention under section 85(1) or at the time that the Tribunal authorised an extension of the period of detention under section 85(3).
9. This need to consider the facts and circumstances at the time of the review permits the Tribunal to revoke the authorisation without any suggestion that the detention was not validly authorised at the time it was authorised or at the time when the period of detention was extended. Circumstances can change.
10. Several other uncontroversial but important preconditions that must be met in order for a doctor to authorise involuntary detention should be noted:
    • (a) the doctor must have conducted an initial examination of the person under section 84;
    • (b) the reasonable grounds for the doctor believing that the criteria set out in section 85(1)(a)(i) - (iv) are met must be based on the examination that the doctor has conducted of the person and any other information given to the doctor; and
    • (c) under section 85(1)(b) of the Act, another doctor must also have examined the person and, on the basis of his or her examination and any other information given to him or her, must also have reasonable grounds for believing that the criteria set out in section 85(1)(a)(i) - (iv) are met. The information given to the second doctor might be the same as the information given to the doctor authorising the involuntary detention, but it remains necessary that the second doctor has independently examined the person and has been given the information upon which that second doctor's belief on reasonable grounds is based.
11. Section 85(1)(b) of the Act applies for the purpose of authorising involuntary detention of the person, but further examination by the initial authorising doctor or a second doctor is not necessary for the purpose of applying for or obtaining an extension of the period of detention. It is necessary only that the chief psychiatrist (or his/her delegate) believes on reasonable grounds that the person continues to meet the criteria in section 85(1)(a)(i) - (iv). The chief psychiatrist or his/her delegate may or may not be the doctor who authorised the initial involuntary detention or the second doctor who also examined the person for the purposes of section 85(1)(b).

1. In this case, on the evidence, I was satisfied at the time of conducting my review that the authorising doctor (and the other doctor who also examined ED) had, and continued to have, reasonable grounds for believing that ED had a mental illness. I reached that conclusion for several reasons.
2. First, ED had been taking high quantities of a prescribed drug, dexamphetamine. A question arose as to whether ED's delusions (which were apparent to each doctor who observed ED) were caused by the drug. Section 11(j) of the Act provides that a person is not to be regarded as having a mental disorder or mental illness only because the person takes or has taken alcohol or any other drug. Withdrawal of dexamphetamine from ED (he being unable to obtain it whilst detained at AMHU) was not causing his mental state to resolve or improve. Rather, withdrawal of the drug was exposing the real possibility that ED's continuing delusions were because of a mental illness. The dexamphetamine had been, in effect, masking the possibility of that underlying mental illness.
3. Second, there were real concerns on the part of ED's treating doctors, including the doctor who had authorised ED's detention, that ED was obtaining prescribed dexamphetamine consequent upon a past but incorrect diagnosis of attention deficit hyperactivity disorder (ADHD). The doctors were concerned that ED was taking dexamphetamine supposedly to support his mental wellbeing but not by reference to a diagnosis they accepted. At hearing, the doctors were clear in saying they had not made any determination about whether ED had or did not have ADHD, nor did I make any finding about it. However, in the context of emergency involuntary detention, a possible misdiagnosis of ADHD gave reasonable grounds for the authorising doctor to believe that ED's delusions were because of a mental illness.

Section 85(1)(a)(i) - requires immediate treatment, care or support

1. Where ED presented with delusions and his mental circumstances were unknown, it was clear that ED required immediate treatment, care or support. There was, appropriately, no suggestion to the contrary from Ms Banks.
2. There is ambiguity as to whether the word 'involuntary' in the opening line of section 85(1) applies only to the detention that a doctor may authorise or extends to the "treatment, care or support" that a doctor may authorise. The ambiguity is compounded by sections 85(2), (3) and (4), which:
   • (a) enable the chief psychiatrist (or his/her delegate) to apply to the Tribunal for an extension of the period of detention;
   • (b) enable the Tribunal to extend the period; and
   • (c) enable the person to apply for review of his or her involuntary detention, but are silent about review of the authorised treatment, care or support.
3. The ambiguity did not arise at the hearing of ED's application for review of his involuntary detention, and so I can express only a preliminary view that section 85(1) enables a doctor to authorise involuntary treatment, care or support. It would be illogical that a doctor could involuntarily detain a person in an approved mental health facility, and determine that the person requires immediate treatment, care or support (that being a criterion for the person's involuntary detention), and yet not be able to provide that required immediate treatment, care or support if the person chose not to receive it.
4. That conclusion is supported by the words of section 85 which provide that the involuntary detention arises in circumstances where the person has "refused to receive" the treatment, care or support that the person "requires" immediately.
5. The absence of any power on the person's part to apply for review of the person's treatment, care or support, or any power on the Tribunal's part to review that treatment, care or support, is consistent with the general principle in the Act that it is for treating doctors, not the Tribunal, to decide the kind of treatment, care or support that a person should receive.[11]

Section 85(1)(a)(ii) - refusal of treatment, care or support

1. Ms Banks submitted that ED was not refusing treatment, care or support and therefore that criterion in section 85(1)(a)(ii) was not met. I rejected the submission.
2. First, section 85(1)(a)(i), (iii) and (iv) are written in the present tense unlike section 85(1)(a)(ii) which requires the doctor to have reasonable grounds for believing that the person (and ED in this case) "has refused" to receive the immediate treatment, care or support that he requires.
3. The word 'that' in section 85(1)(a)(ii) contemplates that the refusal has to be of the treatment, care or support that the person requires. It follows that if the treatment, care or support were to change, the person would need an opportunity to accept the changed treatment, care or support, and to have refused it, before section 85(1)(a)(ii) is met. However in this case, the treatment, care or support that ED required had not changed and he had refused it.
4. 'Treatment, care or support' is written disjunctively in section 85(1)(a)(i), (ii) and (iv). It follows that the refusal can be of any of the treatment, care or support that the person requires. It is not to the point that the person is not refusing one aspect of their treatment, for example his or her medication/s, if the person is refusing another aspect of the required treatment, care or support. Relevant to this case, part of the care and/or support that ED immediately required was hospitalisation in order for the doctors to explore further their provisional diagnosis of his mental illness. On any view, ED had refused, and was refusing, to stay at AMHU voluntarily.
5. Section 85(1) is silent as to when the refusal needs to have occurred, but in my view it needs to have occurred at a time relevant to the need for detention. That might be at a time that led to the person being taken to an approved mental health facility under section 80(2) of the Act or at any later time but not a time prior. The refusal cannot be historic.

1. Whilst refusal of treatment, care or support need not be ongoing for the purposes of section 85(1)(a)(ii), the absence of ongoing refusal can be relevant to whether "detention is necessary" or is no longer necessary. However all the circumstances need to be taken into account. If a person is taking his or her medications voluntarily and hospitalisation is not otherwise required, detention might no longer be necessary for the person's health. However there are other prescribed reasons for why detention may still be necessary, namely the person's safety, social or financial well-being or for the protection of someone else or the public.
2. These other reasons did not need to be explored at the hearing of ED's application because there were reasonable grounds for why detention was necessary for his health, namely the doctors needed to continue exploring ED's medical circumstances in order to ascertain the treatment, care and support he required. Detention was necessary because ED made clear that he did not accept that there was anything untoward about his mental health and that he wished to leave AMHU, hence his application for review.

Section 85(1)(a)(iv) - adequate treatment in a less restrictive environment

1. Whether the final criterion is met depends heavily upon the facts and circumstances in each case. In many cases, whether this criterion is made out will depend on whether there is a viable alternative to hospitalisation in order for the person to receive immediate treatment, care or support. The treatment, care or support does not need to be to a standard or of a kind that can be provided in hospital. It needs only to be 'adequate'.
2. In this case, the reasonable grounds for why the doctor who authorised ED's involuntary detention believed that adequate treatment, care or support could not be provided in a less restrictive environment mirrored the grounds for why detention was necessary. At the hearing, ED stated his denial of any mental illness and did not suggest any other place or manner by which he could receive treatment, care or support. Rather he denied the need for any treatment, care or support. If free to leave AMHU, he would have done so and, in all probability, would have returned (if he could) to taking high doses of dexamphetamine without any regard to whether they were needed.
3. Through a combination of circumstances, ED came to the attention of mental health doctors who, fortunately for ED, recognised that his mental health needed to be addressed. Once his mental state is better understood, the question of ongoing treatment (voluntary or otherwise) can be considered. However those issues did not arise in the context of ED's involuntary detention under section 85, which entailed emergency detention pending doctors being able to make diagnoses and assessments of ED's mental health by reference to which they could determine long-term treatment of ED.

1. I have noted at paragraph 36(c) above, the requirement for another doctor to have examined the person and also to have reasonable grounds for believing that the matters mentioned in section 85(1)(a)(i) - (iv) are met. In circumstances where there needs to be reasonable grounds for the second doctor's belief, objectively judged, the grounds will in most if not all cases be the same grounds. However, it remains necessary that a second doctor has examined the person and has the requisite belief. In this case, on the evidence presented, I was satisfied that another doctor had examined ED and had the requisite belief.

1. For these reasons, I confirmed the order extending the period of ED's detention.

Legal Aid ACT

[1] The initials 'ED' are not the person's initials.

[2] The Tribunal understands that ED's treating psychiatrist holds a delegation from the Chief Psychiatrist under section 200 of the Act to exercise the Chief Psychiatrist's functions under the Act.

[4] 'mental disorder' is defined in section 9 of the Act.

[5] 'mental illness' is defined in section 10 of the Act

[6] [1990] HCA 26; (1990) 170 CLR 104

[7] [1990] HCA 26; (1990) 170 CLR 104 at [8]

[8] [2006] HCA 45; (2006) 228 CLR 423

[9] This limited role of the Tribunal contrasts with its roles under section 58 and section 66 of the Act, where the Tribunal (itself) has to be satisfied of the matters described in those sections for the purpose of making a psychiatric treatment order or a community care order, respectively.

[10] McKinnon v Secretary, Department of Treasury at [17]

[11] See for example, sections 57, 59(2) and (3), 67(2) and (3)