Administrative Law - Health law - Treatment and care of mentally ill persons - Detention, involuntary treatment, etc - Criteria for order authorising involuntary treatment - Assessment of chance of serious harm to patient or others - Meaning of "likely".

Mental Health Act 2013 (Tas), s 40(b).

Judgment Number: [2021] TASFC 4

1. I agree with the reasons of Pearce J. Blow CJ was correct in the interpretation he gave to "likely" in s 40(b) of the Mental Health Act 2013: B v Mental Health Tribunal [2020] TASSC 10. The legislative context, the purpose and object of the legislation and the potential consequences of the appellant's construction, as discussed by Pearce J, strongly support the construction that "likely" means something that might well happen, regardless of whether it is more or less than 50%.
2. I wish only to add to a consideration of the legislative context, a comment about the subject matter of s 40(b) in which "likely" appears. The subsection provides that one of the criteria for a compulsory treatment order is a finding about risk of future serious harm from mental illness on the assumption of an absence of treatment. An interpretation attributing a mathematical probability to "likely" is far less apt for this predictive task than the test of whether serious harm "might well happen" which can be applied without a finding of whether the risk of serious harm is more or less than 50%. In essence, the approach of Blow CJ is much more workable for the Mental Health Tribunal and clinicians operating under the Act than that advanced by the appellant.
3. Because there is no error in the decision of Blow CJ, I agree with Pearce J that there is no cause to consider the discretionary considerations advanced by the respondent regarding the suitability of an order for declaratory relief. The arguments advanced on behalf of the Attorney-General on declaratory relief strayed into this Court's jurisdiction to make such an order, and, for completeness, I briefly address this point. The argument is that since both orders have expired there is no jurisdiction for this Court to make an order for declaratory relief.
4. Section 47(1) of the Supreme Court Civil Procedure Act 1932 gives power to this Court on the hearing of an appeal to "give any judgment or make any order or determination which ought to have been given or made, ... and to make such further or other order as the case may require". There is no question that the Full Court has power to give declaratory relief. See also r 103 of the Supreme Court Rules 2000. Whether the question raised by this appeal falls outside the Court's jurisdictional limits is resolved by the application of well-established principles. Declaratory relief would be unavailable where the declaration would produce no foreseeable consequences for the parties_: Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd_ [2000] HCA 11, 200 CLR 591 at [52]; Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 582; or where the dispute is hypothetical or divorced from the facts of a case_: Bass v Permanent Trustee Co Ltd_ [1999] HCA 9, 198 CLR 334 at [48]. Here, given the importance of the Tribunal's treatment orders to the appellant as an involuntary patient, and the real interest that she has in these orders having been made in accordance with law, and also, the prospect that future orders will be sought affecting the appellant under the same statutory provision as the provision the subject of this appeal, the question raised by the appeal could not be said to be merely hypothetical. This Court has jurisdiction to make a declaratory order on the hearing of this appeal. However, as noted, given the failure to establish error, the question of the exercise of the Court's discretion to order declaratory relief does not need to be decided.

1. The issue raised by this appeal concerns interpretation of a provision of the Mental Health Act 2013 (the Act). The appellant suffers from a mental illness, schizophrenia. In 2019 she was made subject to treatment orders made under the Act. Treatment orders are made by the Mental Health Tribunal (the Tribunal) and authorise treatment of mental illness without informed consent. A treatment order may only be made if the Tribunal is satisfied of each of the five criteria specified in s 40(a) to (e) of the Act, one of which is that "without treatment, the mental illness will, or is likely to, seriously harm the person's health and safety or the safety of other persons". Blow CJ determined, at first instance, that the term "likely", when used in s 40(b), means that the contemplated serious harm "might well happen": B v Mental Health Tribunal [2020] TASSC 10 at [11]- [14]. By this appeal the appellant challenges that finding and asserts that his Honour should have found that "likely" means "more probable than not." For reasons which will be explained, the appellant seeks a declaration to that effect.
2. For the reasons which follow, the decision of the learned primary judge was correct. I would decline to make a declaration and dismiss the appeal.

1. Two treatment orders were made by the Tribunal in relation to the appellant. The first was made on 22 March 2019 to remain in effect until 21 September 2019. The Act, s 174, confers a right of appeal to the Supreme Court from a determination of the Tribunal. The appellant appealed that order. On 13 September 2019 the Tribunal extended the order until 20 March 2020. The appellant also appealed that order.
2. The Act permits an appeal from a determination of the Tribunal to the Supreme Court on a question of law as of right, and on any other question only with leave: s 174(3). On hearing and determining an appeal, the Supreme Court may affirm the determination, set aside the determination and substitute its own determination or set aside the determination and remit the matter to the Tribunal for redetermination: s 175(3). The appellant appealed the Tribunal determinations on a number of grounds. Only one, ground 2, is relevant to this appeal. It asserts:

"The Tribunal made an error of law when applying the criterion in s 40(b) of the Mental Health Act 2013 by finding that criterion to have been met in the absence of any evidence that the patient's mental illness will, or is likely to, seriously harm the patient's health or safety or the safety of other persons."

1. The amended notice of appeal to this Court contains two grounds:

"(a) The Court made an error of law in interpreting the word 'likely' in s 40(b) of the Mental Health Act 2013 (Tas) to mean 'something that might well happen.'

(b) The Court's error in interpreting s 40(b) resulted in the court wrongly dismissing Ground 2 [of the appeal]."

1. The learned primary judge considered the question of whether there was any evidence to support the Tribunal's conclusion that the criteria in s 40(b) had been met on the basis of his interpretation of the meaning of the word "likely." He concluded, at [14] of his reasons:

[14] Section 40(b) is concerned with what is 'likely'. When that word is used in legislation, it can have various meanings. It can mean 'more probable than not' or 'more than a 50% chance'. It can refer to something that might well happen. It can refer to a possibility that is more than a remote or theoretical possibility. The meaning of the word has been considered in a great many cases. See, for example, Boughey v The Queen (1986) 161 CLR 10; Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union [1979] FCA 85; (1979) 42 FLR 331 at 339; Cream Holdings Ltd v Banerjee [2003] EWCA Civ 103; [2003] 3 WLR 999. Much depends on the legislative context. It is significant that the principal purpose or object of s 40(b) is the protection of mentally ill persons and others from risks of harm. Having regard to the purpose and context of the provision, I consider that 'likely' should be given a wide interpretation. It should not be interpreted as meaning 'more probable than not'. It must be interpreted as meaning something more than a remote or theoretical possibility. I think it should be interpreted as referring to something that might well happen. Having regard to the evidence that I have referred to, I consider that it was open to the Tribunal to conclude that, without treatment, the appellant's mental illness was 'likely' to result in her killing herself. Ground 2 must therefore fail."

1. When Blow CJ heard the appeals, only the second order remained in force. By the time of his Honour's decision neither order remained in force. If error is demonstrated, there is no longer any utility in setting aside his Honour's ruling, no utility in remitting the proceeding to him for redetermination of the issue raised by the ground of appeal on a different basis, and no utility in remitting the proceeding to the Tribunal. This Court is not asked to review the evidence to consider whether Blow CJ's decision that it was open to the Tribunal to conclude that without treatment the appellant's mental illness was "likely" to result in her killing herself was correct. The grounds of appeal are confined to consideration of whether his Honour erred in his interpretation of the meaning of the term "likely" and thus came to the wrong conclusion.
2. For those reasons the appellant seeks declaratory relief. The appellant asserts that the nature of her condition is such that it is foreseeable that she will be the subject of future applications for treatment orders, and that it is appropriate that this Court determine the correct interpretation of s 40(b) to be applied by the Tribunal in that eventuality. The primary judge was not asked to make a declaration. The appellant contends however that he could have done so by the power given to the Supreme Court by the Act, s 174(4), to "make any further order it considers just in the circumstances." The powers of this Court on hearing an appeal are set out in the Supreme Court Civil Procedure Act 1932, s 47(1), which include to "give any judgment or make any order or determination which ought to have been given or made ... and to make such further or other order as the case may require".
3. Counsel for the respondent submitted that, having determined the "no evidence" ground adversely to the appellant, there was no need for his Honour to interpret the term "likely" in s 40(b), and that the result of the appeal would have been the same regardless of which interpretation was adopted. I would not go so far. It cannot be determined whether his Honour's conclusion may have differed if he had asked himself whether there was evidence from which the Tribunal could infer that the appellant, left without treatment, would more probably than not suffer serious harm. The respondent also submitted that the discretion to order declaratory relief is not enlivened and that there is no real controversy to be determined. In light of the conclusion I have reached it is not necessary for me to determine the submission.

Interpretation of the meaning of "likely" in s 40(b)

1. Assigning legal meaning to the words of a provision begins with consideration of the ordinary and grammatical meaning of the words taking into account both context and legislative purpose: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41, 239 CLR 27 at 46-47 [47] per Hayne, Heydon, Crennan and Kiefel JJ; Australian Education Union v Department of Education and Children's Services [2012] HCA 3, 248 CLR 1 at [26]; Roadshow Films Pty Ltd v iiNet Ltd [No 2] [2012] HCA 16, 248 CLR 42; R v A2; R v Magennis; R v Vaziri [2019] HCA 35, 373 ALR 214 at [124]. The statutory purpose is derived from a consideration of the scheme of the particular legislation as a whole: Australian Education Union v Department of Education and Children's Services at [28]. Consideration of context in its widest sense and the purpose of the statute informs the interpretative task: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ, applied in R v A2 at [124].
2. As the learned primary judge pointed out, the meaning of "likely" has been considered, in a different context, in cases such as Boughey v The Queen (1986) 161 CLR 10; Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331 at 339; Cream Holdings Ltd v Banerjee [2003] EWCA Civ 103, [2003] 3 WLR 999. According to the Macquarie Dictionary on-line, "likely" relevantly means "probably or apparently going or destined (to do, be, etc)". The reference to "probably" may at first glance tend to support the appellant's argument, but I do not think it does so to any significant extent. The legislative context and legislative purpose is of much greater significance. The Acts Interpretation Act 1931, s 8A, requires that, in the interpretation of a provision of an Act, an interpretation that promotes the purpose or object of the Act is to be preferred to an interpretation that does not promote the purpose or object.
3. It was submitted by the appellant that, for reasons of comity, this Court should follow the decision of the Court of Appeal of the Supreme Court of Victoria in RJE v Secretary to the Department of Justice [2018] VSCA 265, 21 VR 526. In that case it was determined that the word "likely", when used in the Serious Sex Offenders Monitoring Act 2005 (Vic), s 11(1), meant "more likely than not." I do not accept the submission. RJE dealt with legislation in another State which is not identical or even similar. The legislative terms, context and purpose are different. With respect, we are not required to reach the same conclusion when construing the legislation under consideration in this appeal, for comity or otherwise: Marshall v Director-General, Department of Transport [2001] HCA 37, 205 CLR 603, 632-3 [62] cited in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5, 233 CLR 259, 270.
4. The Mental Health Act, by its long title, is an "Act to provide for the assessment and treatment of persons with mental illness." The Objects of the Act are stated in s 12:

(a) to provide for the assessment and treatment of persons with mental illnesses;

(b) to provide for appropriate oversight and safeguards in relation to such assessment and treatment;

(c) to give everyone involved with such assessment and treatment clear direction as to their rights and responsibilities;

(d) to provide for such assessment and treatment to be given in the least restrictive setting consistent with clinical need, legal and judicial constraints, public safety and patient health, safety and welfare;

(e) to promote voluntary over involuntary assessment and treatment and the making of free and informed assessment and treatment choices;

(f) to provide for all incidental and ancillary matters."

1. The Tribunal is established by s 167. It must consist of at least one legal practitioner, at least one psychiatrist, and at least four other members all appointed by the Governor. The Tribunal has various functions under the Act, but those directly relevant to this appeal are in Part 2 of the Act, which creates a scheme for assessment, treatment and management of persons who have, or appear to have, mental illness. Division 1 of Part 2 of the Act first provides, by s 15, that all persons exercising responsibilities under the Act are to "have regard to the mental health service delivery principles set out in Schedule 1". Schedule 1 states those principles as follows:

"(a) to respect, observe and promote the inherent rights, liberty, dignity, autonomy and self-respect of persons with mental illness;

(b) to interfere with or restrict the rights of persons with mental illness in the least restrictive way and to the least extent consistent with the protection of those persons, the protection of the public and the proper delivery of the relevant service;

(c) to provide a service that is comprehensive, accessible, inclusive, equitable and free from stigma;

(d) to be sensitive and responsive to individual needs (whether as to culture, language, age, religion, gender or other factors);

(e) to emphasise and value promotion, prevention and early detection and intervention;

(f) to seek to bring about the best therapeutic outcomes and promote patient recovery;

(g) to provide services that are consistent with patient treatment plans;

(h) to recognise the difficulty, importance and value of the role played by families, and support persons, of persons with mental illness;

(i) to recognise, observe and promote the rights, welfare and safety of the children and other dependants of persons with mental illness;

(j) to promote the ability of persons with mental illness to make their own choices;

(k) to involve persons receiving services, and where appropriate their families and support persons, in decision-making;

(l) to recognise families, and support persons, of persons with mental illness as partners, with mental health service providers, in the provision of their treatment and care to the extent that this is appropriate and consistent with their own wishes;

(m) to respect the wishes of persons receiving services, and the wishes of their families and support persons, to the maximum extent consistent with the health and safety of those persons and the safety of others;

(n) to promote and enable persons with mental illness to live, work and participate in their own community;

(o) to operate so as to raise community awareness and understanding of mental illness and to foster community-wide respect for the inherent rights, liberty, dignity, autonomy and self-respect of persons with mental illness;

(q) to recognise and be responsive to national and international clinical, technical and human rights trends, developments and advances."

1. In the Act, persons who have or appear to have mental illness are referred to as "patients" and fall into various categories. An involuntary patient is a person who is subject to an assessment order or a treatment order. I will explain those terms shortly. A forensic patient is a person who has been admitted to a secure mental health unit or an involuntary patient to whom s 66 applies. The appellant was not a forensic patient. A voluntary patient is a person who is not an involuntary patient or a forensic patient.
2. This appeal does not directly concern assessment orders, but a brief explanation of assessment orders is necessary. In short summary, such an order, if the required circumstances exist, facilitates the assessment by a specially qualified medical practitioner of whether a person may require treatment for mental illness. Section 23 lists the persons who may apply for an assessment order. They include a medical practitioner, a nurse, a mental health officer, a police officer, a parent or guardian, and an ambulance officer. An application should only be made if the applicant has personal knowledge of the patient and is satisfied that a reasonable attempt to have the prospective patient assessed, with informed consent, has failed or would be futile or inappropriate: s 23(2). Assessment orders are made by medical practitioners. Any medical practitioner may make an assessment order: s 22. An assessment order may only be made if the medical practitioner forms the opinion that the person needs to be assessed against the assessment criteria, and that a reasonable attempt to have the person assessed, with informed consent, has failed, or that it would be futile or inappropriate to make such an attempt: s 24. An assessment order is authority for the patient to be assessed, without informed consent, by an approved medical practitioner, to determine whether the patient meets criteria listed in s 25 for assessment for mental illness and the criteria in s 27 for treatment of mental illness. The assessment criteria are stated in s 25:

"(a) the person has, or appears to have, a mental illness that requires or is likely to require treatment for -

(b) the person cannot be properly assessed with regard to the mental illness or the making of a treatment order except under the authority of the assessment order; and

(c) the person does not have decision-making capacity."

1. Once an assessment order is made, the assessment may only be carried out by an "approved medical practitioner". An approved medical practitioner is one approved by the Chief Forensic Psychiatrist under s 138(1). Only a psychiatrist or a medical practitioner who is otherwise qualified or experienced in the diagnosis or treatment of mental illness may be an approved medical practitioner: s 138(2). Whether an adult has decision-making capacity is the subject of s 7(1)(a):

"7(1) For the purposes of this Act, an adult is taken to have the capacity to make a decision about his or her own assessment or treatment (decision-making capacity) unless a person or body considering that capacity under this Act is satisfied that -

(a) he or she is unable to make the decision because of an impairment of, or disturbance in, the functioning of the mind or brain; and

(i) understand information relevant to the decision; or

(ii) retain information relevant to the decision; or

(iii) use or weigh information relevant to the decision; or

(iv) communicate the decision (whether by speech, gesture or other means)."

1. An assessment order provides only for assessment of a patient. It is not authority for a patient to be given any treatment: s 27(5). By s 16, the Act provides for the circumstances in which "treatment" may be given. The term "treatment" is defined in s 6:

"treatment is the professional intervention necessary to -

(b) manage and alleviate, where possible, the ill effects of mental illness; or

(c) reduce the risks that persons with mental illness may, on that account, pose to themselves or others; or

1. A voluntary patient may be given treatment with informed consent, either as a hospital inpatient or in the community: s 16(1). However, except when treatment is authorised in urgent circumstances by s 55, an involuntary patient may only be treated with informed consent, or if the treatment is authorised by a treatment order: s 16(2)(a). The meaning of informed consent is dealt with in s 8:

"8(1) For the purposes of this Act, a medical practitioner may regard a person's consent to an assessment or a treatment as being informed consent if satisfied that -

(a) the person, at the time of giving the consent, has decision-making capacity; and

(b) the person has had a reasonable opportunity to make a considered decision whether or not to give the consent; and

(c) the person, having had that opportunity, has given the consent freely by some positive means, not by mere acquiescence."

1. Only the Tribunal can make a treatment order: s 36. Only an approved medical practitioner may apply for a treatment order: s 37(1). A treatment order may not be made in respect of a person unless the Tribunal is satisfied that the person "meets the treatment criteria" listed in s 40 as follows:

(b) without treatment, the mental illness will, or is likely to, seriously harm -

(c) the treatment will be appropriate and effective in terms of the outcomes referred to in section 6(1); and

(d) the treatment cannot be adequately given except under a treatment order; and

(e) the person does not have decision-making capacity."

1. The result of all of the foregoing may be summarised by stating that before the Tribunal may make an treatment order for a person who has been the subject of an assessment order:
   • a person who is likely to know the patient and know of his or her circumstances has decided to apply for an assessment order;
   • a medical practitioner has made an assessment order having formed the opinion that the person needs to be assessed against the assessment criteria without informed consent;
   • a psychiatrist or a specially qualified or experienced medical practitioner has assessed the patient, been satisfied of the treatment criteria and decided to apply to the Tribunal; and
   • the Tribunal has satisfied itself that all of the legislative requirements, including the treatment criteria, have been met.
2. Before the Tribunal may make a treatment order for a person who has not been subject to an assessment order:
   • the approved practitioner who makes the application, as well as one other approved practitioner, must have independently assessed the person and both been satisfied of the treatment criteria; and
   • the Tribunal has satisfied itself that all of the legislative requirements, including treatment criteria, have been met.
3. To be satisfied that the person who is the subject of the application meets the treatment criteria, the Tribunal must be satisfied that the person does not have decision-making capacity which means, at least, that the person is unable by reason of an impairment of, or disturbance in, the functioning of the mind or brain to make a decision for himself or herself: s 7. A person who does not have decision-making capacity cannot give informed consent: s 8.
4. If the Tribunal makes a treatment order, the order is authority for the patient to be given, without informed consent, the treatment, or type of treatment, specified in the order: s 42(1). The treatment order is authority for the patient to be admitted to, and if necessary detained, in an approved hospital, assessment centre or secure mental health unit for the purpose of treatment, but only if the terms of the order so specify: s 42(2)(a). A treatment order may remain in force for a maximum of six months, s 44, although it may be renewed if the patient continues to meet the treatment criteria, s 48.

1. The appellant contends that Blow CJ was wrong to find that the "principal purpose or object of s 40(b) is the protection of mentally ill persons and others from the risk of harm". The appellant argues that such a purpose is "not stated anywhere in the Act" and his Honour "did not have regard to the stated objects of the Act set out in s 12 or the principles in Schedule 1 in attributing this unstated purpose".
2. The appellant also contends that other provisions of the Act support a narrow interpretation of "likely" when used in s 40(b). One provision identified by the appellant is s 39(1), which provides that a treatment order may be made "if, and only if" the conditions in that section are satisfied. The appellant argues that the terms of s 40 generally favour "certainty" of legislative meaning, and that, s 62 specifies in detail the rights of involuntary patients, including by par (a) the right "to have the restrictions on, and interference with, his or her dignity, rights and freedoms kept to a minimum consistent with his or her health or safety and the safety of other persons."

1. The appellant's submissions should not be accepted. In my opinion there could be no other purpose than the purpose identified by Blow CJ for a provision authorising involuntary treatment of a person who suffers from mental illness but does not have capacity to make decisions for himself or herself. Treatment, by definition in s 6, is the professional intervention necessary to prevent or remedy mental illness, to manage and alleviate, where possible, the ill effects of mental illness, to reduce the risks that persons with mental illness may, on that account, pose to themselves or others, and to monitor or evaluate a person's mental state. The terms of s 12 and Schedule 1 make clear that the health and safety of persons suffering from mental illness and the safety of others are important factors in the legislative scheme: see for example s 12(d) and Schedule 1(b) and (m). Those purposes and principles are to be read with the other legislative purposes and principles, all of which are to be given force and effect by persons exercising responsibilities under the Act, including the Tribunal. The legislative steps and conditions for the making of a treatment order have the effect of providing a multi-level safeguard of the rights of the patient before involuntary treatment is authorised. At every stage those exercising responsibilities under the Act are to have regard to the mental health delivery service principles in Schedule 1. From the time an assessment order is made, medical practitioners and the Tribunal are to address and observe the principles stated by s 62. The rights of patients listed in s 62 have force once a treatment order is made. Indeed, s 62 is expressly directed to the rights of involuntary patients, that is, those subject to an assessment or treatment order. The right under s 62 principally relied on by the appellant, the right of an involuntary patient under par (a) "to have the restrictions on, and interference with, his or her dignity, rights and freedoms kept to a minimum", is expressly subject to consistency "with his or her health or safety and the safety of other persons". In my opinion, the interpretation of s 40 adopted by Blow CJ does not signal a violation, reduction or undermining of the rights of the patient under s 62, any of the mental health delivery service principles under s 15 and Schedule 1, or the objects of the Act, s 12. Patients are to be subject to the least restriction, but only as far as is consistent with public safety and patient health, safety and welfare. Moreover, the submission that the terms of the legislation favour "patient autonomy" carry little weight when, at the relevant time, the patient is incapable of making an autonomous decision. In my view it is for the Tribunal to weigh the various, sometimes competing, considerations and to reach the appropriate balance. I accept the submission of counsel for the respondent that to impose the same test as the civil standard when determining the prospect of risk of serious harm would unnecessarily constrain the exercise by the Tribunal of its functions and powers. I do not think that adoption of the interpretation favoured by Blow CJ results in any less certainty of outcome.
2. The term "likely" should be given a consistent meaning throughout the Act. It appears also in s 25 which provides for the assessment criteria for an assessment order. A medical practitioner considering an application for an assessment order is required to assess whether the person has, or appears to have, a mental illness that requires or is likely to require treatment for the person's health or safety or the safety of other persons, and whether the person cannot be properly assessed with regard to the mental illness or the making of a treatment order except under the authority of the assessment order. Again, an assessment order can be made only for a person without decision-making capacity. It seems to me to undermine the force and purpose of the legislation to interpret, in that context, "likely" to mean more probable than not when what is sought is an assessment by an approved medical practitioner to confirm whether the patient meets the assessment criteria and to determine if the patient also meets the treatment criteria: s 27(1).
3. The interpretation of the term "likely" contended for by the appellant would, if correct, potentially result in the following situation. Assuming that a person suffers from a mental illness, the person is unable to give valid consent to treatment or make decisions for himself or herself (and thus voluntary treatment is not possible), there is a good chance that without treatment the person will seriously harm himself or herself or someone else, and treatment will be appropriate and effective in addressing the illness and reducing the risk of harm, the Tribunal is nevertheless powerless to authorise such treatment unless satisfied that the chance of serious harm is more than 50%. The words, context or purpose of the legislation do not justify that result.

1. I would decline to make the declaration sought and dismiss the appeal.