Mental Health Act 1996, s 26(1)(c), s 26(1)(d), s 149(1)

Denial of access to all information relevant to hearing constituted a failure to accord procedural fairness

Requirements of s 26(1)(c) and s 26(1)(d) not fully and properly considered

Beckwith v The Queen [1976] HCA 55; (1976) 12 ALR 333

Bradshaw v Medical Board of Western Australia (1990) 3 WAR 322

Donaldson v Broomby [1982] FCA 58; (1982) 40 ALR 525

Harry v Mental Health Review Board (1994) 33 NSWLR 315

Marshall v Watson [1972] HCA 27; (1972) 124 CLR 640

Moursellas v Pharmaceutical Council of Western Australia (1992) 10 WAR 240

Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 36 FLR 482

Smith v Corrective Services Commission (NSW) (1981) 47 CLR 134

Television Corporation Ltd v The Commonwealth [1963] HCA 30; (1963) 109 CLR 59

Thompson v Byrne [1999] HCA 16; (1999) 161 ALR 632

Twist v Council of the Municipality of Randwick [1976] HCA 58; (1976) 136 CLR 106

Watson v Marshall [1971] HCA 33; (1971) 124 CLR 621

1 TEMPLEMAN J: The appellant in this matter appeals from a decision of the Mental Health Review Board, given on 10 February this year, that he remain an involuntary patient subject to a community treatment order under the Mental Health Act 1996.

2 The appellant is a 44-year-old man who has had employment in a number of occupations. Since 1989, he has suffered from a mental illness. He has had a number of admissions to hospital for the treatment of that illness as a voluntary patient. And he has for a number of years received treatment on a voluntary basis as an outpatient.

3 In addition to that, he has on two occasions, for two periods, become an involuntary inpatient in the Alma Street clinic attached to the Fremantle Hospital. The most recent period was from 19 January to 3 February this year.

4 On 3 February, the appellant was discharged as an inpatient pursuant to s 42B of the Mental Health Act, subject to a community treatment order. That order was made by Dr Stephen Addis, who is a psychiatrist at the Fremantle Hospital. The order was effective from 3 February to 2 May 2000. That is a period of 3 months, being the maximum period in respect of which such an order may be made.

5 On 25 January of this year, the appellant applied, pursuant to s 142 of the Mental Health Act, to have his involuntary patient status reviewed. The application was made to the Mental Health Review Board, to which I will refer as "the Board". It was an application for the review of the question whether the appellant should continue to be an involuntary patient.

6 On the same day as the application was made, an application was made on behalf of the appellant to the Fremantle Hospital for access to his medical records. The application was made in a letter to the Fremantle Hospital by Ms Robyn Kay Ayres, who is the appellant's solicitor.

7 The request for access to the records was made under s 160 of the Act, which provides that a person in the position of the appellant has the right to inspect and be given an accurate reproduction of any relevant document. "Relevant document" is a defined term. It is defined in s 160 to mean:

"Any document that is in the possession of or under the control of a person in charge of a hospital or any person employed in the department that relates to that patient."

In other words, the relevance of a document is limited only in that it must relate to the patient.

8 In response to the request the appellant was provided with copies of medical records relating only to his becoming an inpatient on 19 January of this year. No records or notes were provided which related to the appellant in respect of any earlier treatment of any kind. I shall refer to that matter in a moment.

9 The hearing was conducted before the Board, as I have said, on 10 February 2000. There were three Board members: a legally qualified Chairman, a psychiatrist, and a lay member. The hearing was conducted informally, as is permitted under the Act. The Board heard evidence - not I think sworn evidence, but it heard from the appellant himself and from Dr Addis.

10 The Board adjourned briefly at the end of the hearing and then came back to inform the appellant that the Board had carefully reviewed his file and had come to the conclusion that he had a mental illness which required treatment under the community treatment order.

11 The Chairman said that the Board had based its decision on what it had been able to gather from the file. He then referred to the adequacy of the community treatment order, a point having been raised about its validity. That is a point to which I shall refer in due course.

12 The Board provided its written reasons some time later, as it was required to do, on the request which was duly made.

13 The appellant appeals against the Board's decision. He does so pursuant to s 149(1) of the Act, which provides that:

"A person in respect of whom the Board makes a decision or order, who is dissatisfied with the decision or order, may appeal to the Supreme Court against the decision or order."

14 There are four grounds of appeal. I will summarise them before referring to them in more detail. The first ground is based on a submission that the Board failed to accord procedural fairness to the appellant in conducting the hearing.

15 The second ground is that the Board failed to consider the requirements of s 26(1)(c) of the Mental Health Act.

16 The third ground is that the Board failed to consider the requirements of s 26(1)(d).

17 The fourth ground is that the community treatment order was void for uncertainty and that the Board erred in failing to come to that conclusion.

18 Before dealing with those grounds in detail there are some preliminary matters to which I will refer. The first is that, as I have said, the community treatment order was in force from 3 February to 2 May. It is now 25 May. The order has expired. The result I am told, is that the appellant is now not subject to any restriction at all.

19 In one sense, therefore, this application is of purely academic interest. However, the questions raised are not of academic interest to the appellant. He is entitled to know whether he has been denied any rights to which he is entitled under the Mental Health Act.

20 The second preliminary matter relates to representation. The appeal papers were served on the Board and on Dr Addis. The Board has not appeared, but counsel has appeared on behalf of the Metropolitan Health Service Board which in effect, as I understand it, represents the Fremantle Hospital, Dr Addis' employer. By consent, I joined the Metropolitan Health Service Board as a second respondent to the appeal, on the application of their counsel this morning.

21 The third matter is the way in which I should approach this appeal. It is an appeal in the nature of a rehearing, based on the original materials and on any additional material which may be admitted. I take the approach referred to in Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, as set out in the joint judgment of Gibbs ACJ, Jacobs and Murphy JJ at page 551 in the following terms:

"The established principles are, we think, that in general an appellate Court is in as good a position as the trial Judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial Judge. In deciding what is the proper inference to be drawn the appellate Court will give respect and weight to the conclusion of the trial Judge, but once having reached its own conclusion will not shrink from giving effect to it."

22 That statement was made, of course, in the context of an appeal from a lower order of judicial officer: not in relation to an appeal from a specialist Tribunal. Where there is a partly specialist Tribunal, as in this case, the weight and respect which is given to the conclusion of that Tribunal in relation to matters within its expertise is, I think, greater than would otherwise be the case.

23 I deal now with the first of the grounds to which I referred. That is the question of procedural fairness. It is said that the Board failed to accord procedural fairness in relying on material not provided to the appellant. That is said to be apparent from the Board's written reasons in which reference is made to file notes.

24 I would add that it is apparent also from the informal reasons given at the end of the hearing, to which I have referred. It is said also, that contrary to procedures detailed in the appendix to the written reasons, the appellant was given no information from the file notes, nor was he given the opportunity to respond to that information.

25 I have already referred to s 160 of the Act which sets out the appellant's statutory right to inspect and to be given an accurate reproduction of documents relating to him. It will be convenient now to refer to the steps taken subsequent to the hearing in order to obtain the access to the relevant documents pursuant to s 160. These matters are set out in an affidavit of Ms Ayres filed two days ago.

26 Ms Ayres appeared before the Board on the hearing on 10 February. She says in her affidavit that in view of the remarks made by the Board at the end of the hearing about information that they had been able to gather from the file, she appreciated that there were documents which she had not seen. She therefore applied to the Fremantle Hospital for access to the file. She did so in a letter dated 15 February 2000, in which she requested access to the appellant's complete medical record, which had been before the Board on the day on which it heard the matter. She said that the records were required for the purposes of assessing the merits of the appeal.

27 Ms Ayres says that on the following day, 16 February, she spoke on the telephone to Dr David Castle the clinical director of the Mental Health Services of Fremantle Hospital, who said that she would not be given access to the medical records pursuant to s 160 of the Act as that was contrary to hospital policy.

28 The policy is given in evidence. It has been annexed to Ms Ayres' affidavit. It is a written document of two pages under the heading "Fremantle Hospital and Health Service, Directorate of Mental Health Services, clerical manual." Then there is a subheading, "Release of medical record information to the Mental Health Law Centre."

29 The Mental Health Law Centre is the body which represents the appellant in this case.

30 The policy document refers to a written request. It contains the following statement:

"Only information concerning the current or recent period of detention or a CTO as described by the MHA 96 will be released. Requests for further medical record information should be forwarded to the FH and HS" -

that is, the Fremantle Hospital and Health Service freedom of information office.

31 The reference to MHA 96 is not entirely clear but I assume it to be a reference to the Mental Health Act 1996. I proceed on that basis.

32 It seems to me, with all respect to Fremantle Hospital and recognising that it no doubt had the best of intentions in formulating that policy, it constitutes a clear breach of s 160 of the Mental Health Act which gives the patient an absolute right, subject to exceptions in s 161, to inspect and to be given accurate copies of relevant documents. As I have said, relevance is limited only by the fact that the documents must relate to the patient.

33 There are exceptions to s 161. It is not necessary to refer to them because it is not suggested that any of the exceptions apply in the present case.

34 The assertion in the ground of appeal is that the Board failed to accord procedural fairness in relying on material not provided to the appellant. Whether that is so or not - that is to say, whether the Board failed to accord procedural fairness - is not entirely clear. That is because I do not know whether the Board knew the extent of the information which had been provided to the appellant.

35 In my view, however, putting the proposition neutrally, the appellant was not accorded procedural fairness because he did not have access to relevant material.

36 It is submitted on behalf of the respondents that no harm has been done because the relevant notes which have since been disclosed pursuant to the Freedom of Information Act did not disclose anything adverse to the appellant. It is not suggested now, it is said, that there is anything in those notes which might have made a difference. I am summarising the thrust of the submission.

37 That I think overlooks the important point: the appellant was denied the opportunity of considering whether there was anything either positive or negative in the relevant materials and was denied the opportunity, which has now of course been lost, of making submissions to the Board in relation to anything which might have been in the notes and, more importantly, of questioning Dr Addis about those matters.

38 That was a matter of particular importance because Dr Addis had become involved in the treatment of the appellant only on the occasion of his being admitted to the hospital on 19 January. That is again a matter to which I will refer in a moment.

39 The importance of this lies in the fact that the provisions of the Act relating to a community treatment order have the potential, if the order is not complied with, to result in the involuntary incarceration of the appellant in an institution, thereby depriving him of his freedom.

40 It is therefore, I think, of the utmost importance that the appellant or any person in his position should be given access to notes or records so that every avenue may be explored in relation to his history.

41 That, I think, is why the Act provides for an absolute right, subject to those exceptions, of inspection and the provision of copies. It is, I think, fundamental to the underlying policy of the Act which is set out in s 5. That is: to ensure that persons having a mental illness receive the best care and treatment with the least restriction on their freedom and the least interference with their rights and dignity.

42 In my view the failure to accord procedural fairness in this way would result in the quashing of the Board's decision. Had the CTO remained in force I would have had no hesitation in quashing the decision and remitting the matter to the Board with a direction that they reconsider the application after the appellant had been given a proper opportunity to have the notes or records reviewed as might be thought advisable by him, or on his behalf.

43 I turn to the second and third grounds which raise questions arising from s 26 of the Act.

44 Section 26 sets out the criteria which must be satisfied if a person is to become an involuntary patient. There are four criteria; the first is that the person has a mental illness requiring treatment. There is no doubt that that is the case here. The second criterion is that the treatment can be provided through detention in an authorised hospital or through a community treatment order and is required to be so provided in order to protect the health or safety of that person or any other person, to protect the person from self-inflicted harm of a kind referred to in the following provisions, or to prevent any person doing serious damage to any property. It is, I think, accepted that that criterion is satisfied here.

45 It is the next two criteria which are now in issue. The first is set out in par (c): that the person has refused or, due to the nature of the mental illness, is unable to consent to the treatment. The second is set out in par (d): that the treatment cannot be adequately provided in a way that would involve less restriction of the freedom of choice and movement of the person than would result from the person being an involuntary patient. That is a somewhat difficult provision to which I will refer in a moment.

46 The first complaint is that the Board erred in law and in fact in failing to consider the requirements of par (c). Alternatively it is said there was no evidence before the Board capable of giving rise to a finding that the appellant had refused or was unable to consent to treatment.

47 The Board in its written reasons dealt with this matter under the heading "Section 26(1)(c) Refusal or Inability to Consent to Treatment". The Board said this:

"The Board found that by reason of his limited understanding of his mental illness the patient was unable to consent to treatment and relied upon information provided by Dr Addis in this regard. Despite the patient's statement that he accepted that he had a mental illness and accepted the need for treatment of it the Board did not accept the patient's views in this regard. The views of Dr Addis were supported by some of the patient's comments at the review questioning his "unwellness" at the time of his admission.

The Board found that the patient could not be relied upon to continue to accept necessary treatment, including monitoring, for his mental illness in the absence of an involuntary order."

48 It is submitted on behalf of the appellant that the Board did not take proper account of the evidence given by Dr Addis in relation to those matters, bearing in mind that there are two limbs to par (c): that the person has refused to consent or is unable to consent to the treatment.

49 Dealing with the evidence, I note that Dr Addis was asked by the Chairman to tell the Board why he thought the appellant needed to be on a community treatment order. Dr Addis said this:

"One of the observations that I made when I examined the appellant was that his insight was extremely limited or non-existent. He had no awareness, or at least none that he admitted, to being ill and seemed unable to correlate the symptoms and his behaviour with an illness."

"When it was put to him that that could be the cause of his behaviour and the reason for admitting him to hospital he was angry about that and refuted it quite forcefully."

"In terms of the community treatment order my view is that this lack of insight combined with the potential risk that he may pose to others would warrant a CTO until such time as we can see that he is settled on the medication that we put him on and is indeed complying. I know that the appellant has given assurances now that in fact he will comply and says that he did. Without checking back in detail I can see that at least there was one missed medical appointment in December. There may have been others. I'm not sure. Yes, I would put those as the reasons that I think a CTO would be helpful in his management."

"You're saying that because he doesn't have a full insight into the nature of his illness he is not able to give consent to his treatment?"

50 Pausing there, that is clearly evidence from Dr Addis that the appellant was not able to give consent to his treatment. However, it must be noted that the opinion was not given on a full knowledge of the relevant facts. It was given "without checking back in detail". And as Dr Addis said later, he was not aware of what had happened before his involvement in December.

51 Although it may be said to have been open to the Board on that evidence, to come to the conclusion that the appellant was unable to consent to the treatment, it was, I think unsatisfactory evidence, given Dr Addis' limited knowledge of the case. However, this aspect of the matter is really subsumed in the failure to accord procedural fairness to the appellant. But for that failure, it would have been possible for the appellant's ability to consent to have been explored properly with Dr Addis, by reference to the appellant's full history.

52 In relation to first limb of par (c), the question is whether the person has refused to consent.

53 A little later in Dr Addis' evidence he was asked whether he thought the appellant had understood that he had a mental illness. Dr Addis said, "I think at some level he does, yes." He was then asked, "Do you think he understands why he needs to take the medication for the illness? Dr Addis replied, "Not fully, no. No, I don't think he does." The question was then asked:

"You're saying that there is some potential risk of non-compliance in the future?---Yes, I think the level of the insight makes that a possibility for non-compliance to be a problem."

54 He was asked by the Chairman then, "Probability or possibility?" and he said, "Possibility." He was then asked:

"Is there a past history of non-compliance that you know of?---I don't know."

"I have always taken my medication, gone along with whatever has been suggested by the Board or whatever. "

He was then asked about the injections and medicine he was taking, and whether he had any objections to either one of those treatments. The appellant said:

"No, I don't. No. I'm quite - I will go along with whatever you mention now."

55 The appellant was then asked whether, when he was on "depo" before he came into the hospital, he had kept the relevant appointments. He said he had.

56 The evidence about refusal to consent was therefore, Dr Addis' opinion that there was a risk of non-compliance: and the appellant's assertion that he would accept treatment and would keep all his appointments.

57 The Board, as I have noted, did not accept the appellant's assertion: they concluded that he could not be relied upon to continue to accept the necessary treatment.

58 However, in my view, while the Board's concern may well have been justified, it cannot be elevated to a finding that the appellant had refused to consent.

59 It follows that of the two s 26(1)(c) criteria, there was no evidence to justify a finding that the appellant had refused to consent: and the finding that the appellant was unable to consent was made on the basis of an assessment made by a doctor who did not have a full knowledge of the case, and in respect of a patient who had been denied procedural fairness.

60 Had the issue been live, I should have remitted it to the Board for further consideration.

61 The next ground involves a consideration of s 26(1)(d) which I have already recited. The way in which the section works, in my view, is this: before a patient can be made an involuntary patient all four requirements, (a), (b), (c) and (d) must be satisfied. If the first three are satisfied then it is necessary to consider the fourth. That is to say that even if criteria (a), (b) and (c) point in favour of a person becoming an involuntary patient, no such order may be made unless treatment could not be provided adequately in a way that would involve less restriction of the freedom of choice and movement of that person than would result from the person being an involuntary patient.

62 As I have said, that is a somewhat difficult provision. I understand it to mean this: that if the person can be treated adequately in a way which involves less restriction than would be imposed on that person as an involuntary patient, then he or she should not be made an involuntary patient.

"The Board concluded that at the time of the review there was no less restrictive alternative available to ensure that the patient continues to receive the treatment he requires. The patient has been discharged from the hospital to the CTO and although his view was that this meant that he loses all his freedom, a CTO in fact enables a patient to live in the community."

64 In essence, therefore, the conclusion was that "there was no less restrictive alternative available". As to that, there was evidence by Dr Addis which, in my view, bears on the question. I have already referred to the appellant's evidence that he would keep appointments if required to do so. At that point in the proceedings, the Chairman asked what would happen if the appellant did not keep an appointment at which he was to be given his "depo". Dr Addis then said:

"Usually we would ask - I would ask one of the community nurses to go out and in the appellant's case, because he has a community nurse assigned, we would ask that community nurse who knew him to call out and find out why he hadn't turned up and attempt to rearrange the injection. Either I would take it and give it to him in the community or get another appointment and come to the clinic here."

65 The Chairman then said, "That would be if he was voluntary?" Dr Addis answered:

"Yes, that's just - that's the sort of the usual procedure for someone who doesn't turn up for a depo injection."

66 That evidence, I think, raises the question why, if that procedure is available, could treatment not be provided adequately in a way that would involve less restriction than would be the case if the appellant was made an involuntary patient. That question was not, however, addressed by the Board, which simply made no reference to Dr Addis' evidence.

67 The Board might, of course, have taken the evidence into account: but it is not clear whether it did or not. And because it is important evidence bearing on that issue, I think again, were that the only matter, I would have referred the question of s 26(1)(d) back to the Board with a direction to give full consideration to that evidence and reconsider its decision to any extent necessary.

68 The final ground of appeal relates to the terms of the community treatment order itself. It is submitted that the community treatment order is void because it does not comply with the requirements of s 68 of the Act. That second provides as follows:

(a) a psychiatrist who will be responsible for supervising carrying out of the order;

(b) a treatment plan outlining the treatment that the patient is to receive under the order and including details of -

(i) where and when the treatment is to be given; and

(ii) such other matters relating to the treatment as it is appropriate to specify;

(c) a medical practitioner or mental health practitioner who will be responsible for ensuring that the treatment plan is carried out;

(d) a time when the order will lapse, being not more than 3 months after the order comes into effect.

'The order may include directions to the treating practitioner and to the psychiatrist who will be responsible for supervising the carrying out of the order as to reporting on the patient's progress."

69 The CTO in this case was set out on what appears to be a standard form. It is identified on its face as being "Form 10". I am told that the form does not have any statutory force, there being no form prescribed by the Act or by regulation.

70 The form contains a number of boxes. It identifies the patient, the psychiatrist making the order and the supervising psychiatrist. It identifies the responsible practitioner.

71 Under the heading "Treatment Plan" it says this at par 1:

"To accept Neuroleptic medication as prescribed during Depo medication;

To accept visits from community mental health nurses."

72 The form then goes on to set out the duration of the order, which concludes on 2 May at 3.30 pm. There is then a box, "Directions for Reporting", which is blank: and there is then the order itself which is signed by the psychiatrist. That is, in effect, a certificate that the psychiatrist has examined the patient and that, having regard to s 26 of the Act, he believes that the patient should be made or should continue to be an involuntary patient, but he is satisfied that the criteria for granting the community treatment order in respect of the patient are satisfied and therefore orders that the patient should be treated in the community in accordance with the order. The order is then signed and dated.

73 The point is made that the community treatment order does not contain details of where and when the treatment is to given. That is undoubtedly the case: the treatment plan does not contain any such detail.

74 In their reasons the Board drew a distinction between the treatment plan outlining the treatment and the treatment including details of where and when the treatment was to be given.

75 The Board were of the view that there is a discrepancy between the need for an outline, which they referred to as a summary, and the specific details thereafter mentioned.

76 It seems to me that that discrepancy, as the Board called it, is deliberate. I see the details of the treatment plan as a matter for the relevant medical practitioner. Clearly the patient needs to know, in general terms, what treatment he or she is to receive. But the treatment plan may involve complexities about which it is not necessary to inform a patient. That is why I think an outline is sufficient.

77 The requirement for details to be given of where and when the treatment is to be given, and for other relevant matters to be specified is, I think, quite deliberate. That is because the community treatment order imposes an obligation or obligations on a patient which, if not complied with, can lead to revocation of the order and subsequent incarceration of the patient, thereby depriving him or her of that liberty which is so fundamental in our society.

78 The relevant provisions are s 70, which entitles the supervising psychiatrist to revoke a community treatment order, and s 71, which entitles the supervising psychiatrist in those circumstances to authorise in writing a police officer to apprehend the person and take him or her to a hospital.

79 The patient may be detained under the transport order, which will lapse 72 hours after it is made. That is provided by s 72.

80 It is therefore, I think, of great importance that details should be given to a patient so that he or she knows precisely what is required in terms of attending for treatment and is left in no doubt about the requirements.

81 It is said against that proposition that s 68 does not itself result in the detention of the patient. That, of course, is true, but it may lead to those consequences. It is also said that the "treatment" of a patient is not a defined term: and that it is a very wide term. It may involve a wide range of treatments which need to be accommodated in the order. Thus, it is said, it may not be possible to specify the "where and when" requirements set out in subsection (b).

82 I have some sympathy with that view in terms of the practical treatment of a patient, but it seems to me, and I think it was accepted by counsel for the respondents, that to give a construction to the provision which made it unnecessary in appropriate cases for details of the where and when elements to be provided, is to insert in the subsection the words "where appropriate". That is to say the construction urged on me, is that the order should provide details of where and when the treatment is to be given, only if it is appropriate to do so.

83 That, I think, would go beyond the scope of interpretation. It would be a result in which the Court would be legislating. It would be filling in gaps in the legislation, rather than interpreting the relevant provision. It is not, I think, an option which is open to me.

84 It is also submitted by the respondents that because a CTO may run for 3 months, compliance with the where and when obligation might require details to be given of every appointment which the patient was required to attend over a period of 3 months. That, it is submitted, would be an impractical proposition which the legislature could never have intended.

85 Although, again, I understand the practical considerations which underlie that submission, it is, I think, undermined by s 79 of the Act which gives the supervising psychiatrist an unfettered discretion to vary the terms of the order when considered appropriate. That means, I think, that a CTO need only specify the where and when elements of perhaps the first or second occasion on which the treatment was to be given.

86 As the patient's treatment continued it would be open to the supervising psychiatrist to vary the order simply by adding subsequent dates and times of treatment as was considered appropriate. That would be no different, I think, from any doctor treating a patient, reviewing the progress of that patient and saying at the end of a particular consultation, "You will come and see me in a week's time," or whatever might be appropriate. I see no administrative difficulty in dealing with a CTO in that manner.

87 It is also submitted that even if the details are not set out in the CTO itself, they may be ascertained from any document incorporated by reference into the CTO. Thus it is said in the present case the CTO refers to the appellant accepting medication as prescribed and attending outpatients as required. It is said that the prescription, for example, might itself contain the details of where and when the treatment was to be given: and presumably that some document might be given to the appellant setting out the requirements for attending the outpatients clinic.

88 Again, I can understand the practical considerations which give rise to that submission, but again it seems to me that it would lead to a construction which is simply not open. The Act is clear: the order itself must contain the relevant details and this order simply does not do so.

89 I have made reference to the fact that the box relating to directions for reporting on the form has been left blank. That is, I think, somewhat equivocal. It is not clear whether that box is intended to refer to the relevant details of the treatment plan or whether it is intended to refer to the reporting option, which the treating psychiatrist has under s 68(2) of the Act.

90 I do not need to answer that question because it seems to me that the CTO was defective and did not comply with the provisions of s 68.

91 I think these reasons are sufficient to enable my views to be understood. The scheme of the Act has been set out very helpfully, if I may say so, by Scott J in his decision in MM v Mental Health Review Board, unreported; SCt of WA; Library No 990093; 4 March 1999. I respectfully adopt what his Honour said about that: and in particular what was said on pages 11 and 12 about the principles of construction applying to legislation which interferes with the liberty of the subject.

92 His Honour said at p 12, after referring to authority, that the provisions of the Act should be strictly complied with before the detention or continued detention of an involuntary patient is permitted. I have adopted that approach of strict construction in relation to s 68 because, as I have said, although that section does not itself result in the detention or continued detention of an involuntary patient, it is a provision which may lead to that result.