1. ER was born in 1960. She has a mild to moderate intellectual disability and has been diagnosed with bipolar disorder. In 1995 the Public Advocate was appointed ER's Plenary Guardian and the Public Trustee was appointed her financial manager. By 2002 both of her parents had passed away. She lives in a group home as a client of Disability ACT.
2. The appointment of the Public Advocate as ER's guardian has been renewed and continued with variations over the years. It was last confirmed and re-issued on 14 October 2014 for a period of three years. The relevant terms of this appointment are currently as follows:

1. The Public Advocate of the Australian Capital Territory is appointed guardian for ER (the protected person) with the following powers:
   • (a) to decide where, and with whom the protected person is to live;
   • (b) to decide whether the protected person should work including:
     • (i) the nature of the work she should do;
     • (ii) the place or places she should be employed;
     • (iii) the identity of the employer;
   • (c) to give any consent required for a medical procedure or other treatment (other than a prescribed medical procedure);
   • (d) to make other personal decisions and arrangements needed to ensure that the protected person's health and welfare needs are met and to protect her from unreasonable risks to her health and welfare.
   • (e) to do the things necessary to give effect to decisions about the matters set out above, including (but not limited to):
     • (i) giving or receiving information; or
     • (ii) giving consent to investigations or assessments; or
     • (iii) participating in negotiations;or
     • (iv) signing documents.
2. ER has been the subject of numerous PTOs since 1995. While there have been periods of time during which no PTO has been in place, PTOs have been continuously in place from June 2008 save for a short period in 2011 when no order was in place. The order that is currently in place was made on 30 April 2015 and operates for 6 months.
3. By 2011, the tribunal was receiving reports at hearings convened to review the PTOs that expressed the view that ER could consent to the psychiatric treatment that she receives. However, the Public Advocate as ER's guardian supported the continuation of a PTO because ER was 'unable to give informed consent to treatment for her mental illness'.[1]
4. On 29 July 2011, the Public Advocate lodged an application for a mental health order with a covering letter indicating that the Public Advocate was concerned that ER does not have capacity to provide informed consent to treatment and that she is being administered treatment without lawful consent. The application attached a report by Dr Peter Wurth dated 27 May 2011. It was heard on 15 August 2011.
5. Dr Wurth's report stated as follows:

I questioned [ER] today about her understanding of medication. She is very clearly of the understanding that medication is necessary to keep her well, and she is very keen to keep her current combination of tablets. She identified this combination as very helpful, and far better than her previous treatment. ... She understood that if she were to cease medication she would run the risk of becoming sick ... and ending up in hospital. She was unable to name her current medication other than lithium carbonate. She was unable to enter into any discussion about the roles of the three different psychotropics she takes. She therefore does not have the capacity for fully informed consent. She certainly however would have the capacity for objection to taking medication and she clearly is not exercising this.[2]

1. At the hearing convened on 15 August 2011, one member of the panel indicated that he was inclined to decide that no order should be made but recognised that there was a difficult question to be answered and that it was appropriate for an order to be in place while the question was considered more closely. The two remaining members of the panel were of the view that an order should be made but that, given the apparent difference of opinion between the Public Advocate and the Dual Disability Service and the different views taken by members of the tribunal, it was appropriate to request that a Ruling Tribunal be asked to consider the relevant question of law. The Public Advocate's representative supported that approach.
2. Therefore the General President requested the Appeal President to establish a Ruling Tribunal under section 77 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) to formulate a question of law and to answer it.

1. The Chief Psychiatrist and Public Advocate were parties from the inception of the Ruling Tribunal and leave was given for certain other parties to appear at the hearing and to make submissions. On 18 November 2011 Advocacy for Inclusion (AFI) and a representative of the Dual Disability Service were given leave. As stated above, the Dual Disability Service subsequently became known as MHS-ID. The question of law was formulated on 27 January 2012. Subsequently, on 24 February 2012, ACT Disability, Aged, and Carer Advocacy Service (ADACAS) and the Human Rights Commission (HRC) were also given leave to participate in the hearing. ER was seen by various experts for the purpose of preparing reports for the Tribunal. ER suffered ill-health in 2012 due to a relapse of her bipolar disorder and a hearing was convened on 9 and 10 May 2013. Submissions were received subsequent to the hearing. ER suffered another relapse of her bipolar disorder and suffered ill-health from April 2014 - July 2014 and the tribunal requested a report and submissions from the parties regarding the April 2014 relapse. In September 2014 ER participated in a supported decision-making project run by ADACAS which was the subject of a further report and submissions by the parties.
2. Although it has taken longer than is ideal to provide a decision on the question of law, the timeframe has enabled the Tribunal to test the evidence provided at the hearing about ER's capacity to consent to psychiatric treatment from 'time to time'. This timeframe has been pivotal in allowing the Tribunal to form a conclusion about ER's capacity to consent.
3. The Tribunal wishes to express its gratitude to ER for participating in this case and providing us with important insights to assist the Tribunal and stakeholders to answer the question of law.

1. The submissions filed by the parties, including the interested parties, are listed in Schedule 2. Other material was admitted into evidence during the hearing. The Tribunal has considered all the submissions and evidentiary material, however the material filed by the parties was extensive and the Tribunal has attempted to pare down the parties' arguments to the essential issues relevant to the question of law in this decision rather than summarising all of the submissions. The expert evidence given in the proceedings is summarised in Schedule 4 and the evidence of the lay witnesses (Mr Leahy and Ms Bolton) is summarised in Schedule 5. Schedule 6 has a summary of the evidence regarding ER's relapse in 2014 and Schedule 7 summarises the evidence regarding ER's participation in the ADACAS supported decision-making project in September 2014.

1. The common law recognises two competing interests that are in play when determining whether an adult has capacity to consent to medical treatment. As stated by McDougall J in Hunter and New England Area Health Service v A (by his Tutor T) (Hunter)[3]

The common law recognises two relevant but in some cases conflicting interests:

(1) a competent adult's right of autonomy or self-determination: the right to control his or her own body; and

(2) the interest of the State in protecting and preserving the lives and health of its citizens.[4]

1. The test for capacity for consent to medical treatment that applies in Australia is as set out by McDougall J in Hunter citing Butler-Sloss LJ in Re MB:

There is a presumption of capacity, whereby an adult 'is presumed to have the capacity to consent to or refuse medical treatment unless and until that presumption is rebutted': see Butler-Sloss LJ in Re MB (An Adult: Medical Treatment) [1997] 2 FCR 541 (at [553]).[5]

In this context, it is necessary to bear in mind that there is no sharp dichotomy between capacity on the one hand and want of capacity on the other. There is a scale, running from capacity at one end through reduced capacity to lack of capacity at the other. In assessing whether a person has capacity to make a decision, the sufficiency of the capacity must take into account the importance of the decision .... . The capacity required to make a contract to buy a cup of coffee may be present where the capacity to give away one's fortune is not.[6]

As Butler-Sloss LJ said in [Re MB at 553-554], in deciding whether a person has capacity to make a particular decision, the ultimate question is whether that person suffers from some impairment or disturbance of mental functioning so as to render him or her incapable of making the decision. That will occur if the person:

(1) is unable to comprehend and retain the information which is material to the decision, in particular as to the consequences of the decision; or

(2) is unable to use and weigh the information as part of the process of making the decision.[7]

1. The test in Hunter is consistent with the formulation by the English High Court, Family Division in Re C (Adult: Refusal of Treatment) (Re C) which requires an assessment of whether the person 'sufficiently understands the nature, purpose and effects of the proffered [treatment].[8] In Re C, the court adopted an analysis of the decision-making process in three stages:

first, comprehending and retaining treatment information, second, believing it and, third, weighing it in the balance to arrive at a choice.[9]

1. The Tribunal notes that some evidence given during the hearing was based on the capacity test enunciated in Gillick v West Norfolk and Wisbech Area Health Authority (Gillick).[10] The Public Advocate placed some weight upon the use of this test for capacity by an expert relied upon by the Chief Psychiatrist, Dr Kasinathan. The Tribunal concurs with the submissions made by the HRC that the tests stated above are largely consistent with Gillick although the Gillick test is concerned with those under the age of 18 years. The proposition stated in Hunter that 'an adult' is presumed to have capacity to consent or refuse medical treatment may or may not apply to children and young people. As noted by the HRC,[11] the test in Gillick is consistent with Hunter and was applied by the High Court in Secretary of the Department of Health and Community Services v JWB (Marion's Case).[12] The Tribunal does not consider that partial reliance upon the Gillick factors vitiates the expert opinion provided by Dr Kasinathan.
2. If a person has capacity, then he or she may validly decide to accept treatment and may make equally validly decide to refuse the treatment. The Tribunal did not discern any significant disagreement about this proposition in the parties' submissions,[13] however there was some disagreement about how to interpret refusal in the context of fluctuating capacity. This is dealt with below.

1. The imposition of medical treatment without the consent of a person is a battery.[14] The Public Advocate argued that if she, as ER's guardian, considers that obtaining treatment for ER's mental illness is essential to protect ER's mental health and welfare and prevent any mental deterioration [15] recourse must be had to an application for a mental health order.[16] The Public Advocate further submitted that a PTO makes psychiatric treatment lawful when a person refuses to consent or lacks the capacity to consent.[17] Further, the Public Advocate argued that authorisation for ER's treatment stems from ER's treating psychiatrist under the PTO and it is not apparent upon what legal basis the staff at the group house where ER resides could administer medication in the absence of an order.[18] This scenario is contingent upon a finding that ER lacks capacity. This is dealt with below.

1. The parties differed on the question of whether the test for capacity contemplates a 'sliding scale' or as being on a spectrum'. The Public Advocate submitted that:

[a]ny suggestion of a sliding scale of capacity to consent to medical treatment is ill founded and should be rejected. A person either has capacity to consent to medical treatment or they do not.[19]

1. The other parties did not share this view.[20] For example, the Chief Psychiatrist argued Hunter (which is quoted above) is the leading Australian decision on capacity and it directly contradicts the Public Advocate's view by stating (as mentioned above):

there is no sharp dichotomy between capacity on the one hand and want of capacity on the other. There is a scale, running from capacity at one end through reduced capacity to lack of capacity at the other.[21]

1. As stated by O'Neill and Peisah,[22] it is generally accepted that capacity is not a unitary concept but rather refers to specific decisions, tasks or domains.[23] Capacity is task or domain specific and is peculiar to the particular decision that is to be made. This was acknowledged by the High Court in Gibbons v Wright as follows:

[T]he mental capacity required by law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument, and may be described as the capacity to understand the nature of the transaction when it is explained.[24]

1. Thus, capacity cannot be extrapolated from one capacity task to another.[25]
2. Further O'Neill and Peisah assert that even within a particular type of decision or task category, capacity may vary:

[w]ithin a single domain or capacity task there is a spectrum or hierarchy of decisions from simple to complex and accordingly people may be capable of making simple decisions but not more complex ones. [26]

1. The authors give the example of a person with dementia who may have the capacity to make a simple will, for example leaving a single asset such as their house to their spouse, but may not have the capacity to make a complex will, for example dividing an elaborate estate involving a securities and real estate portfolio amongst multiple, conflicting beneficiaries with fractional interests.[27]
2. The Tribunal further notes the submissions made by ADACAS and AFI regarding the importance of recognising support for decision-making as an element of the spectrum of capacity. As stated by ADACAS:

Recognition for a spectrum of capacity emerges from the UNCRPD [the UN Convention on the Rights of Persons with Disabilities] and, as such, is recognised within a range of international jurisdictions including Canada, the UK, Germany and Ireland.

The UNCRPD states that all people are born with rights, including the right to legal capacity. The ability to act on these rights can be exercised with support. The UNCRPD casts capacity outside the have or have not paradigm, and into a spectrum by acknowledging that all people have capacity and are able to exercise it, with levels of support that are appropriate to them. The nature of some people's impairment will mean that they may require high levels of support, others will require less.

The level of support needed is also decision specific. Health decisions may require more support than a lifestyle decision. The continuum acknowledges on one hand the inherent capacity of all people, and the level of support needed to exercise this capacity, on the other.[28]

1. The UN Convention on the Rights of Persons with Disabilities (UNCRPD) is discussed in more detail below. The parties' submissions also referred to the report of the Victorian Law Reform Commission, which found that:
   • capacity is decision-specific and time-specific and
   • capacity is support dependent. [29]
2. The Tribunal therefore rejects the Public Advocate's assertion that a spectrum of capacity is 'ill founded' and concludes that the concept is supported by the case law and as well as extensive academic studies, policy work and legislation within Australia and internationally. Further, as stated by ADACAS, it is a concept that is at the foundation of the United Nations Convention.[30]

1. Section 30 of the Human Rights Act requires the Tribunal to interpret a Territory law in a way that is compatible with human rights, so far as it is possible to do so consistently with the law's purpose. Certain participants in this matter, including the Chief Psychiatrist and the Public Advocate, are public authorities under section 40B of the Human Rights Act and therefore it is unlawful for them to act in a way that is incompatible with a human right.
2. The Tribunal had the benefit of extensive submissions provided by the parties, particularly by the HRC, regarding the relevant human rights that are potentially engaged in this matter. An involuntary mental health order may have the potential to enliven the following human rights:
   • protection from torture and cruel, inhuman or degrading treatment[31]
   • privacy and reputation[32]
   • freedom of movement[33]
   • right to liberty and security of person[34]
3. International jurisprudence in this area has tended to focus on these key rights even though other rights may be engaged such as the freedom of expression right.[35] The HRC suggested that the following approach should be adopted when considering the application of section 30 of the Human Rights Act.

44. The application of s.30 of the [Human Rights] Act in Tribunal matters was ... discussed by [the tribunal] in the matter of Allatt & ACT Government Health Directorate [[2012] ACAT 67] in interpreting the Freedom of Information Act 1989 and Health Act 1993. The ... Tribunal [in Allatt] noted that it must interpret relevant legislation in accordance with s.30 of the HR Act.

45. The Tribunal first questioned if a human right was enlivened by the legislation, and then followed the methodology adopted by Justice Penfold of the ACT Supreme Court in Re Application for Bail by Islam [(2010) FLR 158] notwithstanding the High Court's decision in the Victorian case of R v Momcilovic [[2011] HCA 11]. ....

46. In Islam, her Honour held that s.30 of the [Human Rights] Act should be applied at an early stage in the process of interpreting legislation (rather than at the end). In Allatt, the Tribunal confirmed that s.30 is not a special rule of interpretation, and noted that this aspect of the Victorian Court of Appeal decision in R v Momcilovic was upheld by the majority of the High Court, and cited the statement of French CJ that the provision:

... requires statutes to be construed against the background of human rights and freedoms set out in the Charter in the same way as the principle of legality requires the same statutes to be construed against the background of common law rights and freedoms. [36]

47. The Commission agrees that the High Court decision in Momcilovic does not appear to have negated the ACT authority of Penfold J's decision in Islam. This methodology determined by Penfold J, and adopted by the Tribunal in Allatt... . [37]

48. We will proceed to apply this methodology to the provisions identified by the Tribunal in the present matter. [38]

1. After framing the tests in Islam and applying them to the question of law in the present case, the HRC concluded that the definition of capacity at common law has not been displaced.[39] The Tribunal respectfully agrees with this submission.

UN Convention on the Rights of People with Disability

1. ADACAS submitted that, consistent with the UNCRPD, it is appropriate to give ER as much support as necessary to enable her to retain the right to make decisions about her own life i.e. to achieve each of the steps of the decision-making process, including communication of the decision.[40]
2. ADACAS and AFI submitted that the role of a person who supports someone to retain decision-making autonomy is crucial in a case such as the present one. The qualities of an appropriate support person include the requirements that they be:
   • free of conflict of interest in the decision being made;
   • trustworthy and trusted;
   • skilled at providing support to people with impaired capacity; and
   • conscientious about ensuring that the decision does not become a substitute one.[41]

1. The Tribunal also concurs with these submissions.

1. The Tribunal concludes that the authorities discussed above, and other sources referred to in the submissions, may be summarised as follows:
   • The common law presumes that a person has capacity to make a decision and this presumption is reinforced by the obligation under section 30 of the Human Rights Act to interpret law in a way that is compatible with relevant human rights and the operation of those rights, including the rights to protection from torture and cruel, inhuman or degrading treatment, the right to privacy and reputation and the right to liberty and security of person as well as the UNCRPD.
   • Capacity may fluctuate.
   • Capacity must be assessed in relation to the decision to be made.
   • The assessment of capacity is specific to the relevant decision, which in this case is a decision about ER's psychiatric treatment.
   • The test is not applied to psychiatric treatment generally, or to different treatment that may or may not be needed in future.[42]
   • The person making the decision should be given the necessary support to make the decision.
   • The onus is on the applicant to rebut the presumption of capacity.

WHAT THE TRIBUNAL NEEDS TO DECIDE IN THE PRESENT PROCEEDINGS

1. The Tribunal must decide whether ER can give lawful consent to psychiatric treatment from time to time. In determining that question there is a further sub-question about whether ER, as a matter of fact, has capacity to consent to psychiatric treatment from time to time. The question of law has some further sub-questions to guide interpretation and provide a context or methodology for answering the question of law. The sub-questions refer to sections 26, 28(d) and 33 of the Mental Health Act and section 30 of the Human Rights Act. Section 26 of the Mental Health Act states that when making a mental health order in relation to a person, ACAT must take into account a number of factors including:
   • (a) whether the person consents, refuses to consent or has the capacity to consent, to a proposed course of treatment, care or support.

1. Section 28 is the main provision that gives power to ACAT to make a PTO, as discussed above. It stipulates that ACAT may make a PTO in relation to a person if ...

d) 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.

1. Section 33 requires that before treatment is given under a PTO the Chief Psychiatrist must explain to the person the nature and effects (including any side effects) of the treatment.
2. However, it is noteworthy that the present proceedings are not proceedings where a PTO could be made or indeed is even sought. Although PTOs have been made regarding ER in the past, the present proceeding is determining a question about her capacity to consent to treatment as a voluntary patient. This question differs from the question that the tribunal asks itself pursuant to sections 26 and 28 of the Mental Health Act when making an involuntary mental health order.
3. The Tribunal notes the helpful submissions provided by the HRC regarding section 26 of the Mental Health Act. The HRC submitted that whilst these provisions imply that the question of a person's capacity to consent is relevant to the imposition of an involuntary mental health order under section 28 of the Mental Health Act, it is unclear what weight or relevance this question should have on the determination of whether to impose an order and/or rely on the common law rules of consent. The HRC examined the original section 27 of the Mental Health Act 1994, which emphasised consent to a greater extent than the present provision, as well as the Explanatory Statement which applied to the amendments in the 1998 review of the Mental Health Act. Clause 12 of the Explanatory Statement referred to the 'further consideration as to whether the person has capacity, and whether they are refusing to consent'.[43] The Explanatory Statement continued that consent:

can have a significant impact on the type of order to be imposed and the type of services which will need to be available to give effect to the order[44]

In commenting upon these provisions the HRC stated:

[t]his statement confirms that an order can be made (albeit a different kind of order) in circumstances where a person has the capacity to consent and is, or is not, consenting to the order. The Explanatory Statement also supports this conclusion, in describing the reasons for the change in approach by repealing the former s.26:

Section 26 of the Act is no longer required as the Tribunal, under amendments referred to above, will be required to consider the issue of consent prior to making an order.

Unlike the former provisions, these amendments give little guidance on what the Tribunal should do having considered and made a determination about a person's capacity to consent, and their wishes,[45]

1. Therefore, the capacity to consent is a factor that the tribunal must take into account when making a mental health order but it is not determinative of the outcome, rather it is a factor to be considered. The consequence of this interpretation is that the tribunal may make a mental health order if satisfied of the requirements under the Mental Health Act (particularly section 28 as regards a PTO) but the order may nevertheless be made even if the tribunal concludes that the person has capacity to consent to the order or, alternatively, if the tribunal concludes that the person lacks capacity to consent to the order.
2. As stated in the submissions by the Chief Psychiatrist: [46]

This question of capacity is central, but not necessarily sufficient, to determine whether a PTO ought to be made (or revoked) in respect of ER. There are other considerations that will not be considered in answering the question of law but which the tribunal would need to take into account before making a PTO, including the matters in section 26 of the [Mental Health Act].[47]

1. The Tribunal notes the submissions made by the Public Advocate regarding section 28 of the Mental Health Act. The Public Advocate submitted that there is no evidence that ER is aware that she is under a PTO or that the order imposes any specific restrictions on her. The Public Advocate advised that:

The requirements under the Management of Consumers Subject to PTOs[48] ensure that ER is subject to regular review on a monthly basis by her treating team and regularly (3 monthly) by her treating psychiatrist. It is apparent that in ER's case continuity of care is significant ... and she has become familiar with the routine administration of medication and trusting of Dr Wurth who has treated her over the last 4 to 5 years.

Given her disability ER requires supported accommodation with 24 hour supervision. There is no evidence to support a change in accommodation or a lessening in the restrictions of the group home. On the contrary ER requires a high level of supported accommodation and assistant (sic) with daily living skills.[49]

1. The Tribunal respectfully agrees with the Chief Psychiatrist's submission that questions about making PTOs are outside the scope of the present proceedings because these proceedings are confined to the task of the Ruling Tribunal which is to give a ruling on the question of law referred under section 77 of the ACAT Act.[50] The Tribunal also accepts the submissions made by the Public Advocate about ER's current regime and living arrangements and care. Therefore, the sub-questions referring to sections 26 and 28(d) of the Mental Health Act merely provide the context within which to make findings about ER's capacity and to answer the question of law.
2. It is to be noted that the framework within which capacity is assessed and decision-making about psychiatric treatment orders occurs will change when certain provisions of the Mental Health (Treatment and Care) Amendment Act 2014 (Mental Health Amendment Act 2014) come into force. These provisions will be discussed later in these reasons.

1. The Chief Psychiatrist, HRC, ADACAS and AFI emphasised the importance of not placing too much weight upon ER's impairment when assessing capacity. For example, in Marion's Case the majority judgment of Mason CJ, Dawson, Toohey and Gaudron JJ stated:

... it is important to stress that it cannot be presumed that an intellectually disabled child is, by virtue of his or her disability, incapable of giving consent to treatment.[51]

1. These parties warned the Tribunal against the 'protection imperative' when assessing ER's capacity. This was described by Justice Baker in KK v STCC as follows:

There is, I perceive, a danger that professionals, including judges, may objectively conflate a capacity assessment with a best interests analysis. ... I remind myself again of the danger of the 'protection imperative' identified by Ryder J in Oldham MBC v GW and PW [[2007] EWHC136 (Fam) [2007] 2 FLR 597]. These considerations underpin the cardinal rule, enshrined in statute, that a person is not to be treated as unable to make a decision merely because she makes what is perceived as being an unwise one.[52]

1. This raises the question about the characterisation of an autonomous refusal of treatment that will be discussed below.
2. However, the Public Advocate presented an alternative view about the 'protection imperative', relying on Marion's Case where the High Court discussed the difficulties in assessing capacity and determined there was 'no unproblematic view of what constitutes informed consent ... its application in many cases is fraught with difficulty'.[53] The High Court further indicated that the requirement of court authorisation ensured a form of protection for vulnerable persons including persons with an intellectual disability. The High Court noted that some procedures fall outside of the scope of a guardian to consent because they involve risks, particularly in relation to competence and the consequences of the treatment.[54] The Public Advocate submitted that this is the case with ER.

1. Related to this view is the issue regarding informal procedures when people lack capacity to consent. In HL v United Kingdom[55] (HL) the European Court of Human Rights (ECHR) found that HL, who had been informally admitted to a mental health facility but was found some months later to lack the capacity to consent to treatment, had been deprived of his liberty because he had been under continuous supervision and had not been free to leave.[56] The ECHR noted a lack of procedural rules under British law for admission and detention of 'compliant incapacitated persons' when compared to the extensive network of safeguards applicable to those treated involuntarily under the mental health regime. The ECHR found that key protections were missing from the UK law, particularly in relation to decisions being reviewed by a court.[57] Following HL, the Public Advocate submitted that:

The effect of this decision was to reinforce that 'informal' admission procedures were not appropriate for those individuals who lack the capacity to consent to treatment, but who are compliant with it. This mirrors the approach taken by the majority of the Supreme Court of the United States in Zinermon v Burch 494 US 113 (1990) in which procedural safeguards were deemed necessary for voluntarily admitting an individual who lacked the capacity of give informed consent. The court in that case, however, did not specify what those procedural safeguards should be.[58]

1. This submission moves into the question of how ER's acquiescence in the psychiatric treatment should be characterised.

The Administration of Treatment in a Controlled Environment and Acquiescence

1. The uncontested evidence is that ER willingly accepts the psychiatric treatment provided by way of the provision of medication within the structured environment where she resides. However, as argued by the Public Advocate:

In order to be valid, consent must be voluntarily given. Acquiescence or compliance does not equate to voluntariness. In ER's case substituted consent is authorised for a number of rudimentary matters. The fact that she complies with being administered psychiatric medication does not equate to consent particularly where she is compliant with persons who hold positions of authority. ER does not manage her own medication nor does she voluntarily monitor her medication levels by organising routine blood tests.[59]

1. However, in reply the Chief Psychiatrist emphasised:

It is no part of the Chief Psychiatrist's case that treatment may be administered without supervision of a court or tribunal to a person without the capacity to consent merely on the basis that the patient is compliant with the treatment.[60]

1. The Tribunal concurs with both these positions. The issue is how acquiescence to treatment should be interpreted in the structured environment within which ER lives.
2. ER receives treatment in a particular context, that is, her treatment is provided in a controlled environment and her medication is administered by staff. This led the Public Advocate to argue the following:

Given ER's level of functioning it is open to the Tribunal to find that any consent given by ER is involuntary. She does not control her medication but has it administered to her. She cannot and does not choose to take extra medication when needed as she is unable detect a deterioration in her mental state as she is unable to recognise these symptoms. Acquiescence and compliance does not equate with voluntariness.[61]

As ER lives, and will continue to live, in supported accommodation with 24 hour staff support, [it is] unclear as to how this is relevant. In such a setting residents do not have access to their medication without staff support for a range of appropriate safety reasons. As such, ER's consent to psychiatric treatment is not linked to a requirement that she self -dispense the medication as in her setting there is no expectation that she be responsible for remembering to do so. Indeed it is highly unlikely she would ever be permitted to do so.[62]

1. Similarly the Chief Psychiatrist submitted that:

What ER would do if medication was not administered or her tests not arranged for her is entirely hypothetical as those things do in fact occur and it would be inappropriate for the staff to cease doing them. In any event, the question of consent is entirely separate from the support a person may be given, such as the organising and preparation of medication, to be able to exercise their freedom to consent. It could not for example be said that a person experiencing physical incapacity, such as quadriplegia, had no capacity to consent simply because they needed to rely on support of others to physically organise and administer their treatment.[63]

1. The Tribunal agrees with the submissions made by ADASCS and the Chief Psychiatrist that the question of consent is a separate issue to the support that a person may be given. However in this case a break in the provision of support did raise a question about the nature of ER's acquiescence and whether her conduct supported a conclusion of fact that she has capacity to consent to psychiatric treatment from time to time. This will be discussed below.

1. Although the Victorian Law Reform Commission noted that:

[t]here are no definitive, scientific tests for use when assessing whether a person meets a particular capacity standard.[64]

the parties agreed[65] that the A.C.T. Health Consent to Treatment: Procedure (CED 09 - 007) (ACT Health Consent Procedure) [66] is an effective instrument to assess ER's capacity. The relevant provisions of the ACT Health Consent Procedure are set out in Schedule 3 below.[67]

1. The ACT Health Consent Procedure requires that an assessment of competence should involve three aspects:
   1. Does the person understand?
   2. Does the person believe what they are being told?
   3. Can the person make a judgment based on this information?

The three aspects of the ACT Health Consent Procedure broadly correspond with the 3 limbs of the formulation used by the English High Court in Re C.

1. The Tribunal considers that the first and second limbs of this test were helpfully elaborated by the submissions of the Chief Psychiatrist so the following must be considered in relation to the first limb:
   • (a) the treatment under consideration
   • (b) an understanding of her mental illness
   • (c) an understanding of the nature and purpose of treatment
   • (d) an understanding of the effects of treatment.
2. The second limb requires ER to believe the information that she has been told.
3. The third limb requires ER to weigh the information to make a choice.[68]
4. ADACAS also provided the Tribunal with a test for capacity that is helpful and elaborates somewhat upon the ACT Health Consent Procedure. It states as follows:
   1. Does the person identify and understand the decision that needs to be made?
   2. Does the person understand the range of options that may be chosen to address the issue or problem?
   3. Can the person weigh up the benefits or consequences of each of the options?
   4. On the basis of this process, is the person able to make a decision about the problem? and
   5. Can the person communicate their decision?[69]
5. O'Neill and Peisah state that although accepted legal standards that define capacity and competency vary, operational definitions of the cognitive elements of capacity usually consist of a combination of the following abilities:
   1. To understand the specific situation, relevant facts or basic information about choices
   2. To evaluate [the] reasonable implications or consequences of making choices
   3. To use reasoned processes to weigh the risks and benefits of the choices
   4. To communicate relatively consistent or stable choices.[70]

1. The Tribunal accepts the submission made by the Chief Psychiatrist that the degree of any person's capacity may fluctuate over time and may be diminished by factors such as illness, fatigue, intoxication, pain, or undue influence. Further, this observation applies to the population generally, not just a person living with intellectual disability. A person's capacity to make decisions may also improve over time.[71]
2. The parties agreed that it is only where ER lacks or loses sufficient capacity to make decisions about her psychiatric treatment that the tribunal should make a PTO. The HRC argued that a PTO may be preferable where a person's capacity is fluctuating substantially from time to time, because such an approach may be less restrictive than the person repeatedly returning to the tribunal to have that capacity reassessed.[72]
3. However, in terms of assessing capacity, a major consideration is how a relapse should be characterised. The Public Advocate argued that ER has never had capacity to consent. The other parties argued that she has fluctuating capacity but the issue of relapse should be considered separately because, as argued by ADACAS, her capacity to consent must be assessed at the present time. Although it is likely at some time in the future she will again exhibit increased symptoms and that new treatment and care decisions will need to be made, they are future decisions about treatment at that time.[73] Alternatively, the Chief Psychiatrist argued that if ER were to show early warning signs of relapse, she could consent to necessary changes to her medication until such time as her deterioration is such that she loses capacity. If there is doubt over her capacity, it should be assessed promptly. If she loses capacity and needs a change in medication, then a PTO should be sought.[74] The Chief Psychiatrist submitted that:

A PTO granted 'just in case' ER has a relapse would not be a proper exercise of the power in s28 of the [Mental Health] Act. Such an order would not satisfy the 'least restrictive' requirement because ER could take her treatment voluntarily unless and until she loses her capacity and only then should a PTO be sought.[75]

1. Further, in his submissions on the evidence, the Chief Psychiatrist stressed that:

Well-documented and recognisable warning signs building up over a period of weeks would be expected to precede any future relapse and would give the Tribunal enough time to make a PTO if and when needed instead of making an unnecessary and unduly restrictive PTO now.

The Tribunal should not make a PTO just in case she has a relapse because this is not likely over the next 6 months, the maximum duration of a PTO.[76]

1. The Tribunal has concluded that the capacity to consent must be assessed over a period of time, so it does not accept ADACAS's submission that capacity may be assessed by present circumstances only. It must include a future component in order to capture the fact that treatment is ongoing. The Tribunal considers that the period within which capacity to consent must be maintained would include a period when a possible relapse may occur and although it agrees with the Chief Psychiatrist's submission that a PTO should not be made 'just in case', it disagrees with the analysis of the evidence of capacity presented by the Chief Psychiatrist. This will be discussed below.

PRIMARY QUESTION REGARDING THE LEGAL EFFECT OF THE GUARDIANSHIP ORDER

1. The Tribunal finds that the order made on 18 October 2011 appointing the Public Advocate as guardian of ER does not cover every decision to be made by ER and ER's capacity must be assessed by reference to the decision to be made. The Tribunal notes the arguments made by the Public Advocate that the issue of 'free consent' to medical treatment does not arise in circumstances where the Tribunal determined that it was necessary to appoint the Public Advocate to consent to medical treatment on ER's behalf,[77] however we are not persuaded by this argument because a person's impaired decision-making ability cannot, of itself, negate their capacity to consent to a particular treatment. The Guardianship Act is carefully drafted so that the appointment of a guardian allows that guardian to make certain decisions which are nominated under section 7(3) of the Guardianship Act. For example, the powers that may be given to a person's guardian include the powers to decide where and with whom the person is to live, what education or training the person is to receive, whether the person is to be allowed to work (and if the person is allowed to work to decide the nature of the work, the place of employment and the employer), to give consent for a medical procedure or other treatment other than a prescribed medical procedure and to bring or continue legal proceedings for or in the name of the person.
2. Clearly there is a restriction on the powers of the guardian under section 7B which states that a guardian does not have the power to give consent for a prescribed medical procedure and 'prescribed medical procedure' is defined in the Dictionary as including treatment for mental illness. Nevertheless there is no intention in the Guardianship Act to cover the field of decision-making and, consistent with the UNCRPD and the obligation of the Tribunal to interpret the Guardianship Act in accordance with the right to liberty and security of the person under section 18 of the Human Rights Act, the Tribunal concludes that a finding of impaired decision-making does not automatically preclude a protected person, and in this case ER, from lawfully consenting to psychiatric treatment.
3. As will be discussed below however, ER may only lawfully consent to treatment if she has capacity to consent. The Tribunal finds as a matter of fact that the ER does not have capacity to consent. However, the answer to the general question of law posed in paragraph 1 is 'no' because the finding that ER has impaired decision-making and appointing a guardian for particular decisions under the Guardianship Act does not oust her liberty to make other decisions.
4. This approach is consistent with the reasoning of the High Court in Marion's Case[78] that intellectual disability is no reason, of itself, to presume that a person is incapable of consenting to medical treatment.[79] The Tribunal therefore adopts the Chief Psychiatrist's submission that a general finding of impaired-decision making cannot automatically rule out the possibility that ER has capacity to decide whether to accept her current treatment for mental illness. [80]

Capacity to Consent Must Be Assessed by Reference to the Decision to be Made

1. As stated by Lord Donaldson in Re T (Adult: refusal of treatment)[81] what matters is that the decision-maker should consider whether the person has capacity that is commensurate with the gravity of the decision. The more serious the decision, the greater the capacity required.[82]

1. The parties disagreed on the complexity or gravity of the decision that needs to be made when assessing ER's capacity to consent to psychiatric treatment from time to time. The Public Advocate characterised the decision in the following way:

Given the gravity of the treatment, the legislators in the A.C.T. have placed the responsibility for this decision in the hands of a transparent Tribunal. The medications ER is prescribed have potentially serious side effects and require routine blood testing. From time to time notwithstanding that ER has been medication compliant, she has unexpectedly experienced a deterioration in her mental state requiring emergency placement in a secure mental health facility.[83]

1. Conversely, in arguing that ER has the capacity to 'decide for herself whether to accept treatment',[84] the Chief Psychiatrist argued that:

The decision is not a complicated one. On the one hand, ER has a mental illness that can make her very sick, the tablets are critical to ER staying well and out of hospital and she has tolerated the medication very well over the years. On the other hand, without her tablets, ER would relapse and become severely unwell. ER understands all this. [85]

1. The Tribunal has concluded that the decision to consent to psychiatric treatment from time to time is more complicated than portrayed by the Chief Psychiatrist. It would, for example involve some capacity to assess the side effects of treatment, some capacity to understand the need for continuing treatment (which leads to a longer time frame within which knowledge must be acquired and retained) and some capacity to recognise the symptoms associated with a deterioration in one's mental state.
2. As stated above, the Tribunal has concluded that the capacity to consent must be assessed over a period of time. It must include a future component in order to capture the fact that treatment is ongoing. The Tribunal considers that the period within which capacity to consent must be maintained would include periods when a possible relapse may occur.

Assessing the Evidence About ER's Capacity I - The Hearing

1. Witness statements and oral testimony were provided on behalf of the Public Advocate by Dr Thompson, Mr Phillip Leahy and Ms Tammy Bolton. Dr Kasinathan provided a witness statement and gave oral evidence on behalf of the Chief Psychiatrist. Dr Wurth provided various reports and gave oral evidence. This evidence is summarised in Schedule 4 in relation to the expert witnesses and Schedule 5 in relation to Mr Leahy and Ms Bolton.
2. In relation to the expert evidence, both Dr Wurth and Dr Kasinathan considered that ER has capacity to consent to psychiatric treatment, whereas Dr Thompson concluded that she does not have capacity to consent to psychiatric treatment. The Chief Psychiatrist submitted that the Tribunal should prefer the evidence of Dr Wurth and Dr Kasinathan because both have more relevant experience working with patients with an intellectual disability and mental illness than Dr Thompson. Further Dr Wurth is a Visiting Medical Officer with MHS-ID and has significant experience in the field of dual disability.[86] Dr Kasinathan has recent, relevant and frequent experience in assessing capacity and particularly assessing the capacity of patients with intellectual disability and mental illness.[87] In terms of recent experience with treating patients with dual disability, Dr Thompson has only 'a couple of patients' that she sees quarterly. Dr Thompson did not identify any significant experience with dual disability since 1978[88] and had only seen ER once, whereas Dr Wurth was ER's treating psychiatrist and Dr Kasinathan saw ER on two occasions.
3. The Chief Psychiatrist also submitted that Dr Thompson had fundamentally misunderstood the test for capacity because she assessed ER's capacity, not in relation to the current specific treatment, but in relation to psychiatric treatment generally, including extra medication, different medication and different treatment that might become necessary in the future for the remainder of ER's life.[89] The Chief Psychiatrist alleged that Dr Thompson was not aware that capacity may fluctuate over time,[90] nor was Dr Thompson aware that the question of capacity is specific to the decision that needs to be made by the person whereas Dr Kasinathan understood that capacity varies upon the domain that one is looking at.[91]
4. The Public Advocate relied upon the evidence of Mr Leahy to establish that ER has limited ability to make independent decisions in the group house and a limited ability to understand the consequences of a decision.[92] Mr Leahy gave evidence that those supervising ER are required to be aware of behavioural difficulties as potential indicators of the deterioration in ER's mental state.[93] He further testified that ER has very limited ability to understand the nature of her illness, the treatment she requires for her illness and the purpose of her medication.[94] He considered that ER has no ability to make a choice whether she should continue to take the medication prescribed for her mental illness and cannot differentiate between medication and treatment for her thyroid condition and medication and treatment for mental illness.[95]
5. As regards the experts, the Public Advocate contended that Dr Thompson has over 40 years experience as a treating psychiatrist and she applied the capacity to give informed consent as the relevant test.[96] The Public Advocate raised some inconsistencies in the evidence of Dr Kasinathan and Dr Wurth regarding the issue of 'partial capacity'.[97]
6. The Chief Psychiatrist argued that there should be no reliance upon the evidence of the lay witnesses because Mr Leahy gave no evidence at all about ER's ability to understand her current medications[98] and Ms Bolton's evidence is no more than monosyllabic answers of 'no' by ER to questions about her understanding of why she takes her medication.[99]
7. ADACAS submitted that the evidence relied on by the Public Advocate was focused on 'fully informed' consent rather than 'legal' consent and this was not the appropriate manner that a person should be required to demonstrate legal capacity to consent.[100] ADACAS argued that ER has retained the relevant information - that the current medications keep her well. Similarly ER has weighed up the consequences of not taking the medication - that she might end up back in hospital - with the benefits of taking them - it keeps her well - and has decided to continue to take her medication. These responses, while less formal and detailed then those that others might make, provide evidence that ER has comprehended and retained information which is material to the decision, in particular as to the consequence of the decision; and weighed the information as part of the process of making her decision. Therefore ER has given clear indication that she can meet the 'legal' test for capacity.[101]

Consideration of the Evidence on Capacity from the Hearing

1. The psychiatrists - Doctors Thompson, Wurth and Kasinathan - agree that ER understands some aspects of her illness and has retained some information about the treatment of her illness and is able to give reasons for wanting to continue with the tablets. Where the experts mainly differ is the ambit of specific treatment that constitutes 'psychiatric treatment' from time to time. The Chief Psychiatrist argued that Doctor Thompson applied the wrong test because she assessed ER's capacity, not in relation to ER's current specific treatment but in relation to psychiatric treatment generally, including extra medication, different medication and differential treatment that might become necessary in the future. While the Tribunal agrees that ER's specific treatment must be differentiated from psychiatric treatment generally there is necessarily an element of continuity in ER's psychiatric treatment. Further, the Tribunal does not consider that Dr Thompson was not aware that the question of capacity is specific to the decision that needs to be made, rather, she disagreed with the ambit of the decision that needed to be made in the current case.[102] Further, the Tribunal does not consider that Dr Thompson misunderstood the concept of fluctuating capacity, because she answered 'yes' to a direct question about it at the hearing.[103] Rather her answers seem to have been directed to the question about whether she knew about recent research that was relevant to the issue.[104] Although Dr Thompson answered 'no' to the question of whether she was aware that capacity can also be time and circumstances specific,[105] it is implausible that she would not be aware of fluctuating capacity given her extensive experience as a psychiatrist and as a member of the mental health tribunal in NSW.
2. Similarly, the Tribunal does not consider that Dr Kasinathan's evidence about ER having 'partial capacity', nor his application of the Gillick test (as discussed above) means that his general evidence should be disregarded. Dr Kasinathan has extensive experience in this area and has significant expertise that must be accorded the requisite weight.
3. The Tribunal notes Dr Wurth's comments referring to ER giving 'implied consent'. Dr Wurth agreed that 'implied consent' refers to a situation where a patient passively cooperates in a process without discussion or formal consent but stated that ER has:

better than implied consent. As a minimum she satisfies the criteria for implied consent but not to the standard required for fully informed consent.[106]

1. While Dr Wurth was clearly the person who is most familiar with ER and, prima facie, the expert who was best able to assess her capacity to consent, the Tribunal finds that he was confused about the test to be applied. Dr Wurth gave frank evidence to the Tribunal that he altered his position regarding the appropriate test for capacity from 'informed consent' to assessing a person on a 'spectrum of consent' which he only applies in practising in the ACT and when considering consent of a patient under a PTO.[107] Therefore, for the purposes of this matter, the Tribunal gives less weight to the evidence of Dr Wurth.
2. However, overall the evidence of Doctors Wurth and Kasinathan must be examined in the light of the test for capacity which is discussed above. Both doctors gave evidence which was equivocal about ER's capacity to retain information. For example, Dr Kasinathan described ER's capacity as 'partial' because of her inability to weigh up with precision the side-effects and benefits of the treatment.[108] Similarly, Dr Wurth said that he did not consider that ER was able to make a choice about whether to take the medication or not.[109] The Tribunal considers that while the views of Doctors Wurth and Kasinathan were valuable in establishing that the first two limbs of the test (that ER understands the nature and purpose of treatment and believes the information that she has been told) because the treatment under consideration was narrowly construed by the Chief Psychiatrist, both doctors delivered a 'snapshot' appraisal of ER's capacity. In particular, their evidence did not satisfy the Tribunal that ER satisfies the third limb in the test for capacity, that is (applying the ACT Health Consent Procedure) whether the person can make a judgment based on the information, or on the ADACAS test (blending steps 3-4), whether the person can weigh up the benefits or consequences of the options to make a decision about the problem. In particular, their evidence did not satisfy the Tribunal that ER can weigh up information to make a choice over the relevant period required to make a decision about psychiatric treatment. Although both Dr Wurth and Dr Kasinathan thought that ER was sufficiently capable of weighing up the information to make a choice,[110] this view was belied by circumstances that panned out over the duration of the hearing. This is discussed in more detail when the evidence about the relapse in April 2014 is considered.
3. In relation to the lay evidence, the Tribunal agrees with the submissions made by the Chief Psychiatrist that Ms Bolton's report does not assist the Tribunal. However, the Tribunal agrees with the submission made by the Public Advocate that Mr Leahy had cared for ER for 9 years by the time of the hearing and provided insight into ER's level of functioning. Mr Leahy's view that ER was unaware why she took the medication should be given weight because of his familiarity with ER. Courts and tribunals frequently rely upon the evidence of persons who are familiar with people who have impaired decision-making when making assessments about their capacity.[111]

1. There was evidence that ER has suffered side effects from the medication[112] but they appear to be properly managed. Dr Thompson mentioned neuroleptic malignant syndrome (NMS) was a side effect of certain antipsychotics but Dr Kasinthan and Dr Wurth both stated that this condition was a side effect of the first generation psychotropics and that ER is not currently taking a first-generation anti-psychotic drug.[113] Further, they testified that the incidence of NMS is very, very low. The Tribunal is satisfied with this explanation.
2. There was some uncertainty about whether the neck protrusion which ER suffered in April 2013 was a side effect of Epilim. There was no evidence that any person had explained to ER that this is a side effect of the medication. Dr Thompson was of the view that ER should be told about the side effects but she would not understand them.[114]
3. The Tribunal considers that the evidence about ER's understanding of the side effects is equivocal and does not assist to rebut the presumption of capacity.

Assessing the Evidence About ER's Capacity II - The Relapse in April 2014

1. Pivotal to the Chief Psychiatrist's case was that ER's capacity may improve over time particularly if she was given the right support to learn about her medication. The Chief Psychiatrist contended that ER's relapses have been rare. However, ER was hospitalised from October 2008 to July 2009, from 10 April 2012 to 7 June 2012 and from 17 April to 14 July 2014. The Public Advocate argued that the periods of hospitalisation were lengthy and becoming more frequent.[115]
2. The Chief Psychiatrist recognised that ER relapsed in March - April 2012 when carers did not recognise the early warning signs of her becoming unwell despite them building up about 3 weeks before her relapse. Dr Wurth gave evidence that he thought this was due to a failure of staff rather than a failure of the protocol itself.[116] Dr Kasinathan thought ER might have some very limited capacity to recognise a need for a change in treatment and understand and identify to her carers that she is not well and may need to see Dr Wurth for a change of medication. He thought she would be able to understand in a scenario where her carers noticed a deterioration and told ER she needed to change her medication. Dr Wurth said it was possible that ER would maintain capacity even where there were early signs of relapse and that it would be a matter of clinical judgement at what point in the progression towards relapse that ER might lose her capacity. The Chief Psychiatrist submitted that email trails by her carers on 22-24 April 2013[117] are an example of effective and appropriate resolution of an episode where ER's capacity may have fluctuated. It was further submitted by the Chief Psychiatrist that effective collaboration between her carers, Disability ACT and MHS-ID, meant that very early warning signs were reported to Dr Wurth who ordered reinstatement of ER's previous dose of Epilim with apparent success.[118] Conversely, the Public Advocate argued that it is apparent from the relapses that ER is unable to retain the information and/or unable to weigh the consequences of not accepting treatment.
3. The Public Advocate argued that before the April 2014 hospital admission there was no evidence of early warning signs or recognition by support workers that would indicate to them that ER was about to 'relapse'. Similarly, argued the Public Advocate, there were no early warning signs in relation to ER's 2012 hospital admission although retrospectively it was contended there had been 'early warning signs' from March 2012. But these early warning signs had not led to any preventative action.
4. The evidence about ER's relapse in April 2014 indicates that support workers were 'unable to identify any trigger socially or medically' for her relapse and that she had suddenly become 'aggressive and erratic.'[119] When ER was examined after her hospital admission on 17-18 April 2014, there was evidence of sub-therapeutic levels of her medication,[120] including her antipsychotic medication. ER made a statement to Dr Wurth that she was 'throwing away her tablets at home'.[121] Although there was ultimately no satisfactory explanation as to why ER's medication levels were sub-therapeutic, an email by a co-worker dated 26 May 2014 concluded that ER had only missed one dose and ER may have discarded that dose in the evening of Wednesday 16 April 2014.[122] Dr Wurth's report of 2 May 2014 considered that the relapse might have been due to stress because there had been considerable tensions in the house. He also considered a possible contribution by an earlier reduction in the prescribed Zyprexa dosage. The report of the Public Advocate of 8 July 2014 also refers to tensions arising from alleged inappropriate conduct by a worker which ER may have felt pressure to conceal. ER's carer was of the view that the absence of certain workers over numerous weeks had had a cumulative impact contributing to ER's deterioration.[123]
5. The Chief Psychiatrist argued that even if ER had discarded some tablets, she had been exhibiting escalating early warning signs of mania for at least 2 days before 16 April 2014. The Chief Psychiatrist invited the Tribunal to find that any disposal by ER of her tablets on the Wednesday evening 16 April 2014 was the result of manic deterioration and not the trigger of her relapse. The Chief Psychiatrist argued that:

Her uncharacteristic disposal of the tablets would be consistent with ER's capacity having deteriorated from its usual level as a result of mania rather than being evidence that ER never had capacity in the first place.[124]

1. The Tribunal does not accept this submission because the presence of sub-therapeutic levels of antipsychotics is consistent with a break in the very structured supported environment in which ER received psychiatric treatment. This coincided with ER becoming unwell. There is insufficient evidence to determine why the medication was at sub-therapeutic levels, but it is clear that ER was becoming unwell before 16 April 2014. The evidence is consistent with ER not retaining information about the therapeutic effects of the medication and the need for continuity of her receipt of it and/or her being unable to weigh the consequences of not receiving treatment. Unfortunately, it appears that there was a failure in the provision of structured treatment in the house which meant that ER was exposed to a breakdown in the continuity of her psychiatric treatment. The Tribunal does not accept the Chief Psychiatrist's explanation that ER's relapse was entirely unpredictable because it is plausible that non-adherence to medication (albeit unexplained) led to her becoming unwell. If ER was able to fully weigh up the consequences of not receiving psychiatric treatment she may have communicated or acted somehow to circumvent the situation. Although the Tribunal recognises that some of the evidence suggests an alternative hypothesis e.g. that ER did not act or communicate because she was under pressure to conceal conduct, the lack of action or communication is more consistent with the proposition that ER was becoming unwell due to sub-therapeutic levels of medication but she acquiesces in or 'goes along' with the suggestions made by her health professionals rather than weighing up the information she has been given, even if that involved her not receiving psychiatric treatment.
2. In this regard, the Tribunal adopts the same reasoning in relation to the report of Dr Ratnyake dated 7 October 2014[125] where the doctor relied upon the information provided by ADACAS et al 'that ER is able to make decisions if she is well and with the correct support in place'. The Tribunal considers that Dr Ratnyake placed too much weight upon the material about the supported decision-making project when making a judgement about ER's capacity to consent to psychiatric treatment. The Tribunal will discuss the supported decision-making project below.

Assessing the Evidence About ER's Capacity III - ADACAS Trial of Supported Decision-Making September 2014

1. ER participated in a supported decision-making (SDM) trial with ADACAS in September 2014. ADACAS, the Chief Psychiatrist and AFI submitted that this report demonstrated that SDM could enhance ER's understanding of the need for medication and aid her retention of information.[126] It was also argued that ER had a greater desire to learn more about her medication and showed her ability to make choices about what she eats and what she wears.[127]
2. The Public Advocate urged a high degree of caution about extrapolating from the findings of the SDM trial due to its extremely limited scope and depth and 'apparent subjectivity'.[128] The Tribunal acknowledges some of the Public Advocate's concerns about the limited scope of the SDM trial and therefore concludes that the trial does not demonstrate that ER has the capacity to weigh up consequences as required by the third limb of the test for the full ambit of a psychiatric treatment decision which is discussed above.
3. However the Tribunal considers that the SDM report is valuable evidence of ER's capacity to accept support in her decision-making. For example, the submission by AFI points to the fact that ER desires to ask questions and learn more about her medication and that ER accepts decision-making supports in regards to her treatment such as verbal prompts and visual aids such as her Webster pack to retain and consider information. The AFI submission points to the Public Advocate's file note of 30 September 2014 which indicates that ER sought access to her Webster pack without prompting as a visual aid to help articulate the difference between the medications prescribed by Dr Davies and Dr Wurth. AFI used this observation to comment that:

Any concerns about ER's capacity to retain and weigh information in regards to her treatment should be addressed by the introduction of sustainable, ongoing supports for ER to retain and consider the relevant information. The ADACAS report indicates that ER benefited from decision-making supports although the support offered was very short term, while ER's psychiatric and intellectual impairments are recognised as ongoing. Advocacy for Inclusion is of the view that ER would benefit from ongoing informal supports to enhance the existing decision-making capacity and that these supports should be put in place upon ER's consent.[129]

1. The Tribunal concurs with this recommendation and notes that it is significant in terms of the new regime for decision-making under the amendments to the Mental Health Act that will come into force next year. The Tribunal will make a short comment about that regime below.

1. The Tribunal concludes that the evidence establishes that ER does not have capacity to recognise early warning signs or in other ways act to secure treatment independently of the regime that is established by the supported environment in which she lives and this finding rebuts the presumption of capacity because the third limb of the test of capacity is not satisfied.

THE FUTURE - AMENDMENTS TO THE MENTAL HEALTH ACT

1. Amendments to the Mental Health Act pursuant to the Mental Health Amendment Act which are due to come into force in March 2016 mean that a guardian will be able to give consent for treatment of mental illness in certain circumstances. The relevant legislation is set out in Schedule 8 below. Pursuant to the new section 70A of the Guardianship Act, a guardian has the power to give for a person the consent required for medical treatment, care or support under the Mental Health Act if the person does not have decision-making capacity under the Mental Health Act (and does not have an advance consent agreement authorising treatment) and expresses willingness to receive the treatment. These circumstances would be satisfied in the present case although the Tribunal has found that ER lacks capacity to consent to psychiatric treatment. As discussed above, the Tribunal found that ER satisfied the first two limbs of the capacity test by the evidence that she understands the nature and purpose of psychiatric treatment (albeit in the short term) and believes the information that she is told. The evidence that ER expressed willingness to receive treatment was uncontroverted.
2. The Tribunal notes the principles of decision-making under the new section 8 of the Mental Health Act and does not consider that ER merely complies with the provision of treatment care or support, rather the evidence indicates that she has expressed her willingness to receive treatment which is likely to satisfy the requirements under the new section 70A of the Guardianship Act.
3. The parties made submissions about ER's capacity to make an advance consent direction or an advance directive.[130] The Tribunal does not make any findings about ER's capacity to make an advance directive.

1. The Tribunal has concluded that the appointment of a guardian does not of itself mean that ER cannot give lawful consent to psychiatric treatment from time to time. However, the Tribunal has found as a matter of fact that ER does not have capacity to consent to psychiatric treatment from time to time. Although she has expressed willingness to receive psychiatric treatment and understands the treatment in the short term and believes what she is being told, she is not able to retain and weigh the information to make a choice about psychiatric treatment from time to time. Therefore, although the Tribunal concludes that the answer to the question of law is 'no', the evidence establishes that the answer to sub-question 1 is also 'no' and an interpretation of the provisions in sub-question 2 do not disturb the finding referred to in sub-question 1.

1. Referral of questions of law within tribunal

(1) This section applies if a tribunal (the requesting tribunal) is dealing with an application.

(2) However, this section does not apply to an application for review of a decision under the Heritage Act 2004, the Planning and Development Act 2007 or the Tree Protection Act 2005.

(3) The requesting tribunal may, on its own initiative or on application by a party, ask the appeal president to allocate 1 or more tribunal members to a tribunal (the ruling tribunal) to give a ruling on a question of law.

(4) If the ruling tribunal gives a ruling on a question of law, the requesting tribunal is bound by the ruling.

Note Question of law includes whether a question is a question of law (see dict).

(5) A ruling tribunal is made up of 1 or more of the following tribunal members allocated by the appeal president:

(b) a senior member who is a lawyer and has been a lawyer for 5 years or more.

(6) However, a ruling tribunal must not contain a tribunal member allocated to the requesting tribunal.

Guardianship and Management of Property Act 1991

1. When does someone have impaired decision-making ability?

For this Act, a person has impaired decision-making ability if the person's decision-making ability is impaired because of a physical, mental, psychological or intellectual condition or state, whether or not the condition or state is a diagnosable illness.

(1) This section applies if the ACAT is satisfied that -

(a) someone has impaired decision-making ability in relation to a matter relating to the person's health or welfare; and

(b) while the person has the impaired decision-making ability -

(i) there is, or is likely to be, a need for a decision in relation to the matter; or

(ii) the person is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the person's health, welfare or property; and

(ii) the person's interests will be significantly adversely affected.

Note 1 See s 8C in relation to appointment of a guardian for a child.

Note 2 A person's needs may be met, or the person's interests protected, under an enduring power of attorney (see Powers of Attorney Act 2006).

(2) The ACAT may, by order, appoint a guardian for the person, with the powers that the ACAT is satisfied are necessary or desirable to make decisions for the person in accordance with the

Note The powers that may be given to a guardian are restricted under s 7B.

(3) The powers that may be given to a person's guardian include the following powers:

(a) to decide where, and with whom, the person is to live;

(b) to decide what education or training the person is to receive;

(c) to decide whether the person is to be allowed to work;

(d) if the person is to be allowed to work - to decide the nature of the work, the place of employment and the employer;

(e) to give, for the person, a consent required for a medical procedure or other treatment (other than a prescribed medical procedure);

(f) to bring or continue legal proceedings for or in the name of the person.

The powers that may be given to a person's guardian do not include the power to discipline the person or the power to do any of the following things for the person:

(e) give a consent required for a prescribed medical procedure for the person.

(d) a medical procedure concerned with contraception; or

(e) removal of non-regenerative tissue for transplantation to the body of another living person; or

(f) treatment for mental illness, electroconvulsive therapy or psychiatric surgery; or

(g) any other medical or surgical procedure prescribed for this definition.

Human Rights Act 2004

1. Protection from torture and cruel, inhuman or degrading treatment etc

(b) treated or punished in a cruel, inhuman or degrading way.

(2) No-one may be subjected to medical or scientific experimentation or treatment without his or her free consent.

(a) not to have his or her privacy, family, home or correspondence interfered with unlawfully or arbitrarily; and

(b) not to have his or her reputation unlawfully attacked.

Everyone has the right to move freely within the ACT and to enter and leave it, and the freedom to choose his or her residence in the ACT.

(1) Everyone has the right to liberty and security of person. In particular, no-one may be arbitrarily arrested or detained.

(2) No-one may be deprived of liberty, except on the grounds and in accordance with the procedures established by law. ...

So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.

40B Public authorities must act consistently with human

(a) to act in a way that is incompatible with a human right; or

(b) in making a decision, to fail to give proper consideration to a

In making a mental health order in relation to a person, the ACAT

(a) whether the person consents, refuses to consent or has the

capacity to consent, to a proposed course of treatment, care or

(b) the views and wishes of the person, so far as they can be found

(c) the views and wishes of the people responsible for the day-today

care of the person, so far as those views and wishes are

(d) the views of the people appearing at the proceeding;

(e) the views of the people consulted under section 25;

(f) that the person's welfare and interests should be appropriately

(g) that the person's rights should not be interfered with except to

(h) that the person should be encouraged to look after himself or

(i) that, as far as possible, the person should live in the general

(j) that any restrictions placed on the person should be the

minimum necessary for the safe and effective care of the

(k) the alternative treatments, programs and other services

(i) the purposes of those treatments, programs and services;

(ii) the benefits likely to be derived by the person from those

(iii) the distress, discomfort, risks, side effects or other

disadvantages associated with those treatments, programs

(m) the religious, cultural and language needs of the person;

(n) for a person referred to the ACAT under section 13 or an

circumstances of the offence in relation to which the person

(o) for an offender with a mental impairment - the nature and

extent of the person's mental impairment, including the effect

it is likely to have on the person's behaviour in the future;

(p) for an offender with a mental impairment - whether or not, if

(i) the person's health or safety is, or is likely to be,

(ii) the person is likely to do serious harm to others;

(q) anything else prescribed under the regulations for this section.

1. Criteria for making psychiatric treatment order

The ACAT may make a psychiatric treatment order in relation to a

(b) the ACAT has reasonable grounds for believing that, because

(i) do serious harm to himself, herself or someone else; or

(ii) suffer serious mental or physical deterioration;

unless subject to involuntary psychiatric treatment; and

(c) the ACAT is satisfied that psychiatric treatment is likely to

reduce the harm or deterioration (or the likelihood of harm or

deterioration) mentioned in paragraph (b) and result in an

improvement in the person's psychiatric condition; and

(d) 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

(1) Before treatment is given to a person under a psychiatric treatment

order, the chief psychiatrist must explain to the person the nature

and effects (including any side effects) of the treatment.

(2) The explanation must be given in the language or way of

communicating that the person is most likely to understand.

SCHEDULE 2 - LIST OF THE PARTIES' SUBMISSIONS AND OTHER MATERIAL

Submissions of Chief Psychiatrist in reply to new matters

Response to additional material by ADACAS dated 5 December 2014

Submission on additional evidence of AFI dated 4 December 2014

Submission in response by Public Advocate filed 20 November 2014

Submissions by Chief Psychiatrist on additional evidence dated 7 November 2014

Submissions by the Public Advocate in relation to further evidence dated 24 October 2014

Supplementary Psychiatric Report of Dr P. Ratnayake dated 7 October 2014

Report filed by the Public Advocate (authored by Ms Houghton) dated 7 October 2014

Report about ER participation in ADACAS by ADACAS dated 26 September 2014

Further evidence by Public Advocate dated 11 November 2013

Closing submissions by Chief Psychiatrist dated 2 August 2013

Closing submissions by Public Advocate dated 14 June 2013

Closing submissions by MHS-ID and Disability ACT dated 3 June 2013

Closing submissions by Chief Psychiatrist dated 31 May 2013

Witness statement by Phillip Leahy dated 22 February 2013

Witness statement by Tammy Bolton dated 22 February 2013

Dr Wurth's Letter to Ms Knowles dated 13 February 2013

Statement of Facts and Contentions by Public Advocate dated 18 January 2013

Joint submissions of ADACAS and AFI dated 2 December 2012

Statement of Facts and Contentions of Chief Psychiatrist and report of Dr Kasinathan dated 30 March 2012

SCHEDULE 3 - ACT HEALTH - CONSENT TO TREATMENT - PROCEDURE CED 09-007

For adults over 18 years an assessment of competence should involve three aspects:

2 - Does the person believe what they are being told?

3 - Can the person make a judgment based on this information?

1. Relevant treatment information is understood and retained

• tell me what you really believe is wrong with your health now?
• do you believe that you need some kind of treatment?
• what is the treatment likely to do for you?
• why do you think it will have that effect?
• what do you believe will happen if you're not treated?
• why do you think the doctor has recommended this treatment for you?

• tell me what you really believe is wrong with your health now?
• do you believe that you need some kind of treatment?
• what is the treatment likely to do you to you?
• why do you think it will have that effect?
• what do you believe will happen if you're not treated?
• who to you think the doctor has recommended this treatment for you?

3. Information is 'weighed' to arrive at a choice

• tell me how you reached the decision to accept (reject) treatment?
• what things were important to you in reaching the decision?
• how do you balance those things?
• have you decided whether to go along with your doctor's/ health professional's suggestion for treatment?

7.4 Assessing competency when communication is impaired

The tests described above cannot be used to assess patients with a communication

impairment that compromises their ability to either:

• process verbal/written information, or
• express themselves verbally or in writing

1. Dr Jennifer Anne Thompson, a private psychiatrist, prepared a report in relation to ER dated 29 November 2012.
2. Dr Thomson has been practising as a psychiatrist since 1971. She had 10 years' experience on the Mental Health Review Tribunal in New South Wales and was Medical Superintendent for 15 years at Macquarie Hospital but does not specialise in treating patients with dual disability at the moment.
3. Dr Thompson's report was described as an assessment of ER. Dr Thompson also gave oral evidence. Her evidence is set out in summary form below:

1. the report was prepared following an interview conducted on 20 September 2012. 2. ER was able to describe accurately and with some detail her daily routine, where she lived, who she lived with and where she worked;

1. ER understood that she had been in Canberra Hospital and she knew she had been there so the 'hospital could make her better'.[131] ER knew the names of her doctors.

1. ER understood that she was taking medication, that she must take the medication to 'get better and not go to hospital', but did not know what medication she was taking or what each medication treated. ER had very little insight. ER did not know what kind of illness she had or really what happened in hospital or why she had been in hospital.[132] 2. Dr Thompson concluded '[that ER's] mental illness is adequately controlled at present with medication and the care she is receiving in the Group Home'. However, ER's mental illness is unpredictable, and events such as staff changes, changes in staff attitude, premenstrual tension, physical illness, changes of routine or staff absences may result in ER becoming disturbed and a requirement for increased medication. When this happens, [ER] 'is not aware that she has become disturbed, she is not aware of the need for increased medication, and it appears that staff has waited some weeks before reporting disturbance and by that time she requires hospitalisation.'[133] 3. In relation to ER's capacity to consent to psychiatric treatment Dr Thompson's opinion was: 1. that ER does not understand the nature of her illness;[134] 2. that ER does not understand the need for psychiatric treatment. She has been told repeatedly that she must take her medication to 'get better' and not go to hospital. She knows she does not like hospital or ECT. She is used to taking medication and she trusts the staff so she takes the tablets when offered. She does not ask for her tablets if they are late, she has objected to taking more [medication] than she usually is given, and she is not aware that her behaviour has become disturbed and she may need more medication;[135] 3. that ER has no understanding of how the treatment assists her apart from keeping her well and not in hospital;[136] and 4. ER takes medication when offered, does not object to taking medication but would not take the tablets if they were not offered to her. ER takes the medication because it is offered to her. ER would not be aware of the need to increase or alter her medication in circumstances where her health had deteriorated.[137] 5. ER does not have capacity to consent to mental health treatment. In her oral evidence Dr Thompson stated that ER has very little insight; did not know what kind of illness she has, or really what had happened or why she was in hospital.[138] 6. For so long as ER was given the 'Rolls Royce' treatment that she is getting, it was unlikely that a situation would occur where the medication would not be administered to her. Dr Thompson reiterated her view that ER would not take her medication on her own volition, did not understand what the medication specifically treated and would not recognise or understand the side effects of the medication or that a deterioration in her health might indicate a need to alter the medication.[139]
2. Dr Thompson gave evidence that ER had a history of developing neuroleptic malignant syndrome (NMS). This was described as a very severe side-effect of anti-psychotic medication and is life-threatening if it develops. NMS is a known side effect of Olanzapine and this medication that has been administered to ER. Dr Thompson noted that this was an extremely rare condition. In cross-examination Dr Thompson conceded as far as she was aware ER had not suffered from an episode of NMS on her current medication. Dr Thompson also gave evidence that the side-effect of Epilim (sodium valproate) was neck protrusion and generally stooped posture. Epilim is also a medication which is administered to ER. Dr Thompson was of the view that ER should be told about the side-effects but she would not understand them.

1. Dr Kasinathan is a consultant forensic psychiatrist. Dr Kasinathan gave evidence that as a consultant forensic psychiatrist he was often called upon to assess patients' capacity including the capacity to refuse or accept psychiatric treatment and that he has over five years' experience in this area. He conducted a psychiatric assessment of ER on 29 February 2012 at her home. The interview was 50 minutes in duration and in the company of her Disability Support Officers. The assessment was undertaken at the request of the Chief Psychiatrist to provide an independent opinion on ER's capacity to consent to psychiatric treatment. Dr Kasinathan provided a written report dated 29 February 2012
2. Dr Kasinathan conducted a further interview with ER on 29 August 2012 at the premises of Mental Health ACT and has provided an updated psychiatric opinion based on that second interview.
3. He noted that ER is a 52-year-old Caucasian Australian female with mild to moderate intellectual disability and bipolar disorder in remission. She had been psychiatrically well at the time of the examination for at least the previous 12 months and her last psychiatric admission was over two years ago when she was acutely unwell and required ECT.
4. In relation to her medication, Dr Kasinathan stated that ER independently stated that she was on lithium carbonate but was unable to volunteer the names of her other medications. ER displayed insight in that she found her psychiatric medication helpful and that it kept her well.[140] ER was unable to state exactly the name of her mental illness, however she was able to identify that she had depression.
5. Dr Kasinathan stated it should be noted that a person having intellectual disability does not automatically negate capacity for all areas of decision making. Specific assessment of capacity for the particular area of decision-making needs to be undertaken as an individual's capacity in one area (e.g. financial management) may be very different to their capacity in another area (e.g. forming a consensual romantic relationship).[141]
6. Dr Kasinathan considered three factors as impacting on the ability of a person to make a decision:
   1. Relevant treatment information is understood and retained: ER believed strongly that her medication helped her to get better and that she needed to continue the treatment. Dr Kasinathan stated that when he asked ER what would happen if she did not receive treatment she replied 'I'd get sick, it wouldn't be a good thing'.
   2. Information or advice is believed: ER 'completely believed' the information and advice that her treating doctors had given her. She was unable to state exactly what her mental illness was called, but she firmly believed that had treatment kept her well and would continue to keep her well.
      1. Information is weighed to arrive at choice: ER's capacity to weigh information may be limited. However, when asked why she had decided to accept her treatment she replied 'I don't think I should stop or not take my meds'. She elaborated that she did not want to get sick again. ER decided to go along with her doctors' recommendation for treatment because she trusts her doctors.[142]
7. In the report dated February 2012 Dr Kasinathan concluded that: ER demonstrated more than partial capacity for informed consent for psychiatric treatment. She exhibited implied consent, fully cooperative with medication without any dissent or refusal in the last two years. Therefore, she possesses at least partial capacity to consent to treatment. In summary, ER has capacity from time to time to consent to psychiatric treatment_._[143]
8. In the report dated 29 August 2012, Dr Kasinathan stated that ER's diagnosis and capacity to consent had not changed since February 2012 and he concluded that, in essence, [ER] has capacity from time to time to consent to psychiatric treatment_._[144]
9. In oral evidence Dr Kasinathan indicated that when he saw the ER she was not experiencing any side-effects from the medication and that he had not observed neck protrusion, stooping, or any weight problem in ER. Dr Kasinathan also indicated that ER had a very small risk of developing NMS. He stated that this was a very rare side-effect of first generation anti-psychotic drugs. He noted that ER was not currently taking a first generation anti-psychotic drug. Dr Kasinathan stated that the incidence of NMS is very, very low, particularly with the doses that ER is taking_._[145]
10. Dr Kasinathan indicated that during the interviews conducted prior to the writing of his reports, ER had answered his questions and he stated that she had responded in a manner commonly held by most patients the mild to moderate intellectual disability. He indicated that ER understood that she was taking lithium carbonate and that she expressed the opinion that her medication helped her to get better and helps her stay well.
11. Dr Kasinathan further stated that ER had understood what an illness was. She had recognised that she had been sick before from this illness, and that she had been in hospital. ER recognised that the medication had helped her to get better and she understood that she needed to continue taking her medication. Dr Kasinathan described ER's ability to understand that some medication may have specific side-effects as 'limited, but not non-existent'.
12. In oral evidence Dr Kasinathan indicated that his view was that ER had made a decision to accept her medication, that she was consenting to treatment and that that consent was a response to an understanding that she had been unwell and that the medication had made her better and would keep her well. Dr Kasinathan stated that from time to time ER may not have capacity to consent to treatment, but from time to time she definitely does have capacity to consent to treatment. He stated that when he saw her and interviewed her she definitely did have capacity to consent to treatment. This capacity must be understood in the context of the limited capacity of a person with a mild to moderate intellectual disability, but was nevertheless a real capacity to consent to treatment.[146]
13. In response to the question: if ER refused to take her medication would your view be that she now lacked capacity? Dr Kasinathan replied 'I think her capacity to consent would need to be reviewed by her treating doctor. ... The fact that she has been compliant for years and now decides 'No, I don't want any more', that should prompt a psychiatric review, which should prompt a review by her general practitioner'. ...[147]

1. Dr Peter Wurth is a practising psychiatrist in a private practice with a mix of adult general psychiatry and intellectual disability psychiatry. He has more than 30 years' experience as a practising psychiatrist and teacher. Dr Wurth has specific experience in the psychiatry of intellectual disability.
2. Dr Wurth has been ER's treating psychiatrist since 2009. He stated that he sees ER frequently, depending on how well she is - a maximum of every month and a minimum of every six months. The tribunal received evidence in the form of written reports by him with regards to ER's treatment and mental state, commencing from April 2009 to the present.
3. Dr Wurth gave evidence that ER had had adverse reactions to her medication. He stated that she had had mild side-effects from medications that he had prescribed for her since 2009, but that she had had major side-effects from medications administered prior to that. Dr Wurth stated that the cause of an early NMS episode was the use of first generation antipsychotic medications in high doses. It is noted that ER is not currently taking a first generation antipsychotic medications.
4. Dr Wurth stated that his assessment of the risk to ER from her current medications was that the risk was very low. He noted that she was now stable and had long-term doses of medication and that this significantly reduced the risk of the side-effect of NMS . He further stated that she was not suffering side-effects such as diarrhoea and nausea from her medication and that she was regularly monitored in relation to lithium. He did speculate that Epilim may be contributing to a degree of neck protrusion, a side-effect that ER is experiencing. Dr Wurth described this as a 'moderately serious' side-effect.[148]
5. Dr Wurth gave evidence that ER had had a manic episode in April 2012, that she was treated in hospital with adjustments to her existing psychotropic medications.
6. Dr Wurth stated that ER understands that she has a mental illness - 'that every so often she gets sick in the head and that that has in the past required her to go to hospital. At times she has used the word 'depression'.' Dr Wurth stated that ER understands the difference between a mental illness and a physical illness.[149]
7. Dr Wurth disagreed with Dr Thompson's assessment that incidents such as staff changes, or other change in routine were necessarily triggers of mental health episodes. Nor did he agree that if ER was not subject to a PTO that he would not be available for consultations. He noted that if ER is stable she would be discharged from his service but he would remain available for consultation with disability staff, her GP and other branches of the ACT mental health service.[150]
8. The totality of Dr Wurth's evidence demonstrates that he had reviewed his understanding of 'capacity to consent to treatment' and had adjusted his assessment of ER's capacity to consent accordingly.
9. In a report dated 18 November 2011 Dr Wurth stated that ER is well and that her bipolar disorder was in remission. He concluded 'she therefore does not have an active mental illness as defined by the Mental Health Act. By the legal definition therefore, she does not have a mental illness currently. By psychiatric usage, she has a mental illness in remission, namely bipolar disorder.' He commented that 'the granting of a PTO is a highly restrictive process, and there is clearly a less restrictive process, whereby [ER] continues to voluntarily take medication packed in her Webster Pack, and supervised by staff'. He further commented that 'she understands that she has been sick. She stated that she got better because of the medication that I gave her, and she also stated that she understood the taking this medication keeps her well'. He noted that ER has an IQ of 55, on the border between mild and moderate intellectual disability and further that her capacity to weigh information to arrive at a choice is extremely minimal, and she has no capacity to state how she has arrived at her current position of accepting medication treatment. He concluded 'in my opinion therefore, she continues to demonstrate that she does not have capacity for informed consent. She does exhibit implied consent... mainly that she passively co-operates in a process such as taking medication without discussion or formal consent'.[151]
10. In a letter dated 5 April 2013 Dr Wurth made the following observations in relation to ER:
    1. that she is becoming increasingly stooped and manifesting a fine tremor. She is slumped in the chair, leaning to the right, with her neck protruded. These symptoms may be side-effects of treatment with Epilim. A cautious withdrawal of Epilim was implemented.
       1. that ER had reiterated her understanding that her medication keeps her well, that if she does not take it she becomes sick, that the type of sickness is in her mind rather than in her body, and that a consequence of this is that she is likely to have to go to hospital, an outcome she is very keen to avoid. She continues to demonstrate capacity for a meaningful degree of consent to her current medication regimen.
11. When asked to explain to the Tribunal why in the past he had concluded that ER cannot consent to mental health treatment, but in more recent documents supplied to the tribunal had concluded that she was able to consent, Dr Wurth replied:

Well the ACT Consent to Treatment policy describes... a high level of capacity for informed consent which involves the ability to know in detail the nature of the illness, the names of the medications, the risks and benefits of the medications, to understand that information and to believe and to make a decision on the basis of it. ... [ER] does not know all those things but I've been informed since that she does have the capacity to consent on the basis of a lower standard of consent, partial consent it has been termed, whereby she understands that she has a mental illness, she understands that medication keeps her well, she understands that without it she would become unwell and that if she is unwell she may well have to go to hospital which she would regard as a negative outcome and that she believes the information [and] she makes her own decision on that basis to take the medication. So it's a question of the standard of consent being considered.[152]

1. Dr Wurth gave evidence that he had revised his assessment of the ER's capacity to consent to treatment following discussions with the Chief Psychiatrist.
2. Dr Wurth gave evidence that ER knew the names of some of the medication she was taking, but not all of them; that she did not understand their effect or operation and that she did not know in detail what each medication treated. ER does not have access to her medication, her medication is administered by staff at her residence and she is acquiescing or compliant in taking medication. Dr Wurth stated that when medication was changed ER was informed of the changes, although the changes were not discussed in any detail with her. He reiterated his opinion that ER understands that the collection of medication she is taking is keeping her well.
3. In relation to his statement that ER exhibited 'implied consent' Dr Wurth agreed that implied consent refers to when a patient passively co-operates in a process without discussion or formal consent but stated that ER 'has better than implied consent. As a minimum she satisfies the criteria for implied consent. She is better than that, consent means she exhibits implied consent every day when she takes this, but she is capable of more sophisticated discussion than that but not to the standard required for fully informed consent'.[153]
4. It is clear from Dr Wurth's evidence that ER's capacity to consent should be viewed in the context of the supported accommodation in which she resides: and he believes she could be taught to take her medication from the Webster pack. Dr Wurth stated that if ER were to refuse her medication he would be concerned that refusal was an early warning sign of a relapse of her bipolar disorder. Dr Wurth stated that were ER to suffer such a relapse it is unlikely that she would have capacity to consent to treatment.

1. Mr Phillip Graham Leahy, is a Disability Services Officer who had worked supporting ER for two years at the time of the hearing. Mr Leahy spoke to a written statement he had prepared, dated 22 February 2013. His evidence is summarised as follows:

1. ER resides in a house with one other housemate under 24 hour supervision by support workers. During the day ER is able to shower and dress herself with some assistance and she can make her own breakfast. ER suffers from coeliac disease and is lactose intolerant, and while she appreciates that some foods will make her ill, she does sometimes eat food that is not gluten-free.[154] ER is able to entertain herself, watches TV, prepares meals and chooses her own food and clothing. 2. ER's medication is administered by a support worker. ER does not have access to her medication, which is at all times kept in a locked cupboard. ER is aware that she is taking medication and understands that the medication makes her feel well. ER understands that she takes medication for a variety of conditions. ER occasionally asks for her thyroid medication, which is taken in the mornings.[155]

1. If ER is taken to her GP she understands why she is visiting the doctor and is able to converse with the doctor about the reason for the visit. ER understands that she sees Dr Wurth in relation to her mental illness and that she sees her GP in relation to other medical complaints. [156]

1. Ms Bolton is an Acting Network Coordinator for Disability ACT. Her evidence is summarised as follows:

1. On 17 August 2012 she met with ER and carried out a Personal Outcome Measures (POMS) interview. The interview was conducted at ER's residence. 2. A POMS conversation involves the assessor having a conversation with the person, speaking with their support workers, drafting a report, going through the report with the person before it is finalised and feeding the report back to the person and their support workers or carers.

1. The report was completed and read out to ER, who did not raise any issues.

1. In relation the matters of mental health and medication the report shows that ER is supported in relation to her health needs. ER stated that she did not know why she takes her medications and she would like to know more about her medications.

SCHEDULE 6 - EVIDENCE REGARDING THE RELAPSE IN APRIL 2014 AND ER'S MENTAL STATE MID-LATE 2014

In April 2014 ER was admitted as an inpatient at the Adult Mental Health Unit (AMHU) of the Canberra Hospital following a relapse of her bipolar disorder. On 8 May 2014 the tribunal (sitting in the Mental Health Division) granted a six-month PTO in respect of ER. ER was discharged on 4 July 2014. The tribunal that made the PTO requested a report about ER's relapse.

The following evidence was received from the parties in the present matter pursuant to orders made by the Tribunal on 12 September 2014 regarding the circumstances surrounding the relapse and ER's mental state in mid-late 2014.

1. Clinical notes prepared by Dr Rama Das Gupta and dated 1 May 2004. The notes state that ER has had a relapse of her bipolar illness due to non-adherence to medication.[157] It is noted that ER insisted that she had always been compliant and has always taken all of her tablets, but the clinical notes indicate that, considering the low lithium and Epilim levels on admission, it is likely that this information is not necessarily accurate. It is further noted that ER is at risk of accidental self harm and harm to others through misadventure, non-adherence to treatment and worsening of her current mental and physical state.[158]
2. A letter from Dr Peter Wurth to ER's GP dated 2 May 2014. This letter is a report of a consultation conducted on 1 May 2014. That report notes that ER's lithium level was found to be 0.2, and her valproate level was low at 81. ER has apparently admitted to throwing out her tablets, both at the group home and at hospital. There is however, considerable uncertainty as to whether she has said that she has thrown out medications at home. It appears that a number of doses may have been omitted.[159] Dr Wurth notes that there was apparently significant tension within the house and that warning signs may have been missed by carers and staff.
3. An email dated 6 May 2014 from the Public Advocate of the ACT to the Mental Health Division of ACAT. The email notes that ER has been an inpatient in AMHU) at the Canberra Hospital since 18 April 2014, following a relapse (manic episode) of her bipolar disorder. The email states that this is attributed to non-adherence to psychotropic medication by the treating psychiatrist at AMHU and to tension within her household.
4. A letter from Dr Peter Wurth to the Adult Mental Health Unit dated 29 May 2014. This letter concludes that an application should be made to ACAT for consent to a course of ECT treatment.
5. A report by the Public Advocate to ACAT dated 7 October 2014. This report was prepared subsequent to ER's discharge from hospital. The report has attached to it a letter from Dr Peter Wurth to ER's GP dated 15 September 2014:
   1. It is noted that Dr Wurth has concluded that ER's bipolar disorder is in complete remission.
6. A letter addressed to the Mental Health Division of ACAT from the Public Advocate dated 8 July 2014. This is a report following an investigation of two specific issues raised in Dr Wurth's letter dated 2 May 2014:
   1. reference to significant tension within the home. It appears that the behaviour of a worker, a new worker with whom ER was not familiar, may have contributed to this tension. The worker had behaved inappropriately in respect of various aspects of her duties and it may be that the worker had manipulated ER so that ER was uncomfortable with revealing any issues she had observed in relation to the inappropriate behaviour of the worker;
   2. medication administration and compliance with ER reporting that she had thrown out her tablets at home and in the hospital. On admission her levels of Epilim and lithium were found to be some therapeutic. The investigation appears to conclude that, except for one occasion, ER's medication had been properly administered.
7. A supplementary psychiatric report prepared by Dr Ratnayake dated 7 October 2014. This report notes that ER was hospitalised from 11 weeks following a relapse of bipolar disorder and was discharged in July 2014. The doctor concluded that ER is currently in remission from bipolar affective disorder. In relation to her medication, the report states that ER stated that if she didn't take her medication, it would make her sick. ER was unable to say why she was on tablets but clearly stated 'they make me better'. The report concludes that ER realises that compliance was important and that non-compliance would lead to a relapse.[160] The report concluded that ER is able to make a judgement based on the information that she is being given as she appears to trust her treating doctors and caregivers. In that ER has capacity to consent to psychiatric treatment from time to time.[161] This report had attached to it a copy of the ADACAS report in relation to ER's participation in ADACAS supported decision making project; and a copy of a report dated 24 September 2014 by the Network Coordinator of the services for Adults with a Disability, Disability ACT. This report stated that very rarely does ER refuse her medication, or, unknown to staff, dispose of it. In the instance that she does, it is a clear indication that a relapse may be imminent. ER values being healthy in her mind and thus willingly takes the tablets when presented to her.

SCHEDULE 7 - EVIDENCE REGARDING ER'S PARTICIPATION IN THE ADACAS SUPPORTED DECISION-MAKING PROJECT - SEPTEMBER 2014

The following evidence was received from the parties pursuant to orders made by the tribunal on 12 September 2014:

1. A report by ADACAS regarding the participation by ER in an ADACAS supported decision making project. ER participated in this project from early February 2014 until late March 2014, when ER became unwell. ER's participation in the supported decision making process was approved by the Public Advocate.

1. In relation to ER's capacity to understand and consent to the taking of her medication, the report notes that ER said that she knows she must take her drugs. 'If I don't I will get sick.' 'I have to do what Dr Wurth says or I will get sick. I do listen to him. I don't want to take them. Sometimes I tell myself, I got to take them. It's the most important thing'.[162] 2. It is noted that ER demonstrated a capacity to understand and manage risks associated with her coeliac disease. This includes independent visits to restaurants and making appropriate enquiries to ascertain which menu items were gluten-free.

1. The report concludes that 'when well, and given support and opportunity, ER demonstrated that she was able to make a range of decisions that she is currently not engaged in. She displayed insight into risk and a willingness to manage those risks. ... She has shown that, with support, she has capacity to be informed and to recall information.'
2. A report by the Public Advocate to ACAT dated 7 October 2014 which included a copy of a file note prepared by Ms Houghton dated 30 September 2014; a file note regarding ER's participation in the supported decision making program prepared by Ms Houghton dated 7 October 2014; and a file note in relation to a home visit by Ms Houghton to ER on 7 October 2014.
   1. in relation to the ADACAS report relating to ER's participation in the supported decision making program, the Public Advocate states that the evidence confirms that ER's ability to make choices about what she ate in the context of her coeliac disease was well established prior to this trial. In general the Public Advocate states the view that ER's participation in the trial does not equate to her gaining a demonstrated ability to make complex decisions; either in respect of those domains which currently fall the substitute decision-maker, or in respect of being able to provide the requisite informed consent to her treatment for mental illness.[163]

SCHEDULE 8 - LEGISLATIVE AMENDMENTS STILL TO COME INTO FORCE

Amendments to the Mental Health (Treatment and Care) Act made by the Mental Health (Treatment and Care Amendment Act 2014

For this Act, a person has capacity to make a decision in relation to the person's treatment, care or support for a mental disorder or mental illness (decision-making capacity) if the person can, with assistance if needed -

(a) understand when a decision about treatment, care or support for the person needs to be made; and

(b) understand the facts that relate to the decision; and

(c) understand the main choices available to the person in relation to the decision; and

(d) weigh up the consequences of the main choices; and

(e) understand how the consequences affect the person; and

(f) on the basis of paragraphs (a) to (e), make the decision; and

(g) communicate the decision in whatever way the person can.

(1) In considering a person's decision-making capacity under this Act, the following principles must be taken into account:

(a) a person's decision-making capacity is particular to the decision that the person is to make;

(b) a person must be assumed to have decision-making capacity, unless it is established that the person does not have decisionmaking capacity;

(c) a person who does not have decision-making capacity must always be supported to make decisions about the person's treatment, care or support to the best of the person's ability;

(d) a person must not be treated as not having decisionmaking capacity unless all practicable steps to assist the person to make decisions have been taken;

(e) a person must not be treated as not having decisionmaking capacity only because -

(ii) the person has impaired decision-making capacity under another Act, or in relation to another decision;

(f) a person must not be treated as having decision-making capacity to consent to the provision of treatment, care or support only because the person complies with the provision of the treatment, care or support;

(g) a person who moves between having and not having decisionmaking capacity must, if reasonably practicable, be given the opportunity to consider matters requiring a decision at a time when the person has decision-making capacity.

(2) A person's decisionmaking capacity must always be taken into account in deciding treatment, care or support, unless this Act expressly provides otherwise.

(3) An act done, or decision made, under this Act for a person who does not have decision-making capacity must be done in the person's best interests.

(4) In considering a person's decisionmaking capacity under this Act, any approved code of practice under section 114 must be taken into account.

Amendments to the Guardianship Act by the Mental Health (Treatment and Care) Amendment Act 2014

70A Restrictions on consent by guardian to mental health treatment, care or support

(1) A guardian who has power to give for a person a consent required for medical treatment involving treatment, care or support under the Mental Health (Treatment and Care) Act 1994 may consent to that treatment only if the person -

(a) does not have decision-making capacity under that Act; and

(b) does not have an advance consent direction under that Act authorising the treatment; and

(c) expresses willingness to receive the treatment.

Note If a form is approved under s 75A for this provision, the form must be used.

(3) A consent must be for a stated period, of not longer than 6 months, but can be renewed (and further renewed) for another stated period of not longer than 6 months.

(4) In considering the stated period necessary for a consent to treatment, a health professional who is giving the treatment must take into account -

(a) whether, and when, the person is likely to regain decisionmaking capacity under the Mental Health (Treatment and Care) Act 1994; and

(b) the likely duration of the treatment, care or support required; and

(c) the content of any advance consent direction in force for the person.

(5) The health professional must tell the ACAT and the public advocate in writing about a consent, including the stated period.

Note If a form is approved under s 75A for this provision, the form must be used.

(6) If a consent is not renewed at the end of its stated period, the health professional must tell the ACAT in writing.

(b) may, at any time on its own initiative, review a consent.

(8) A consent ends before the end of its stated period if -

(a) the ACAT directs that the consent be withdrawn; or

(b) subsection (1) (a), (b) or (c) no longer apply to the person.

Note The chief psychiatrist or another relevant person may apply for a mental health order in relation to the person (see Mental Health (Treatment and Care) Act 1994

Amanda Tonkin, instructed by the ACT Government Solicitor

Professor P. Spender, Mr C. Chenoweth, Ms L. Lennard

[1] Email from Public Advocate to Tribunal dated 8 April 2011

[2] Report of Dr Wurth dated 27 May 2011

[3] [2009] NSWSC 761

[4] [2009] NSWSC 761 at [5]; HRC submissions dated 25 January 2013 at [17]

[5] [2009] NSWSC 761 at [23]; Chief Psychiatrist closing submissions dated 3 June 2013 at [1] ff

[6] [2009] NSWSC 761 at [24]

[7] [2009] NSWSC 761 at [25]

[8] (1994) 1 WLR 290 at 295

[9] (1994) 1 WLR 290 at 295

[10] [1985] UKHL 7; [1985] 3 All ER 402

[11] HRC submissions dated 5 July 2013 at [5]

[12] [1992] HCA 15; (1992) 175 CLR 218

[13] see for example Chief Psychiatrist submissions dated 3 June 2013 at [55] ff

[14] ACT v JT [2009] 4 ACTR 68 at [26]

[15] Section 5A of the Guardianship Act

[16] A mental health order here means a psychiatric treatment order, a community order or a restriction order - see definition under the Dictionary, Mental Health (Treatment and Care) Act 1994 (Mental Health Act)

[18] Public Advocate submissions dated 8 February 2013

[19] Public Advocate closing submissions dated 14 June 2013 at [3]

[20] See for example, Chief Psychiatrist submissions dated 2 August 2013 at [12]; ADACAS submissions dated 5 July 2013 page 3; HRC submissions dated 5 July 2013 at [19]; AFI submissions dated 4 July 2013 page 2

[21] Hunter at [24]; Chief Psychiatrist submissions dated 2 August 2013 [12]

[22] O'Neill, N & Peisah, C, Capacity and the Law (Sydney University Press, 2012) (O'Neill and Peisah)

[24] [1954] HCA 17; (1954) 91 CLR 423, 438

[28] ADACAS submissions dated 5 July 2015 page 3

[29] Victorian Law Reform Commission: Guardianship: Final Report at page 121

[30] ADACAS submissions dated 5 July 2013 page 3

[31] Section 10 of the Human Rights Act 2004

[32] Section 12 of the Human Rights Act 2004

[33] Section 13 of the Human Rights Act 2004

[34] Section 18 of the Human Rights Act 2004

[35] HRC submissions dated 25 January 2013 at [49]-[50]

[36] Momcilovic v The Queen [2011] HCA 34

[37] HRC submissions dated 25 January 2013 at [44]-[48]

[38] HRC submissions dated 25 January 2013 at [44]-[48]

[39] HRC submissions dated 25 January 2013 at [67] ff and [96]

[40] ADACAS submissions dated 25 January 2013 page 2

[41] ADACAS submissions dated 25 January 2013 page 2

[42] HRC submissions dated 5 July 2013 at [4]

[43] HRC submissions dated 25 January 2013 at [64]

[44] HRC submissions dated 25 January 2013 at [64]

[45] HRC submissions dated 25 January 2013 at [65]-[66]

[46] Chief Psychiatrist submissions dated 20 February 2013

[47] Chief Psychiatrist submissions dated 20 February 2013 at [17]

[49] Public Advocate submissions dated 14 June 2013 at [33]-[34]

[50] Chief Psychiatrist submissions dated 20 February 2013 at [17]

[51] [1992] HCA 15; [1992] 66 ALJR 300, at page 61

[52] HRC Submissions dated 5 July 2013 at [16]; KK v STCC [2012] EWCOP 2136 at [65]

[55] (2005) 40 EHRR 32; [2004] 9 ECHR 191

[57] Public Advocate submissions dated 18 January 2013 at [54]-[55] and HRC submission dated 25 January 2013 at [89]

[58] Public Advocate submissions dated 18 January 2013 at [55]

[59] Public Advocate submissions dated 18 January 2013 at [42]

[60] Chief Psychiatrist submissions dated 20 February 2013 at 11.4

[61] Public Advocate closing submissions dated 14 June 2013 at [24]

[62] ADACAS submissions dated 25 January 2013 page 2

[63] Chief Psychiatrist submissions dated 20 February 2013 at [7]

[64] Victorian Law Reform Commission: Guardianship: Final Report at 7.22

[65] Public Advocate submissions dated 18 January 2013 at [35] and 14 June 2013 at [4]; ADACAS submissions dated 5 July 2013 page 1; HRC submissions dated 25 January 2013 at [30]; Chief Psychiatrist submissions dated 7 November 2014 at [13]

[66] Patient Safety and Quality Unit, ACT Health, Consent to Treatment: Procedure (CED 09-007), November 2011

[67] Public Advocate submissions dated 18 January 2013 at [35]

[68] Chief Psychiatrist submissions dated 3 June 2013 at [4]-[18]

[69] ADACAS submissions dated 25 January 2013 page 2

[71] Chief Psychiatrist submissions dated 3 June 2013 at [48]-[49]

[72] HRC submissions dated 5 July 2013 at [52]

[73] ADACAS submissions dated 25 January 2013 page 3

[74] Chief Psychiatrist submissions dated 3 June 2013 at [68]

[75] Chief Psychiatrist submissions dated 3 June 2013 at [72]

[76] Chief Psychiatrist submissions dated 2 August 2013 at [10] and [21]

[77] Public Advocate submissions dated 14 June 2013 at [34]

[78] [1992] HCA 15; (1992) 175 CLR 218

[79] [1992] HCA 15; (1992) 175 CLR 218, 239

[80] Chief Psychiatrist submissions dated 2 August 2013 at [24], [26]

[81] [1992] EWCA Civ 18; [1993] Fam 95

[82] [1992] EWCA Civ 18; [1993] Fam 95, 113

[83] Public Advocate submissions dated 14 June 2013 at [5]

[84] Chief Psychiatrist submissions dated 2 August 2013 at [8]

[85] Chief Psychiatrist submissions dated 2 August 2013 at [7]

[86] Chief Psychiatrist closing submissions dated 3 June 2013 at [27] ff referring to Exhibit CP5

[87] Chief Psychiatrist closing submissions dated 3 June 2013 at [27] ff referring to Exhibit CP1; Transcript of Proceedings 9 May 2013 page 82

[88] Transcript of Proceedings 9 May 2013 page 55

[89] Transcript of Proceedings 9 May 2013 page 61

[90] Transcript of Proceedings 9 May 2013 page 72

[91] See Chief Psychiatrist submissions dated 3 June 2013 at [33]; Transcript of Proceedings 9 May 2013 page 89

[92] Public Advocate closing submissions dated 14 June 2013 Transcript of Proceedings 9 May 2013 page 18

[93] Transcript of Proceedings 9 May 2013 pages 21-25 and 31-33

[94] Transcript of Proceedings 9 May 2013 pages 19 and 35-36; Transcript of Proceedings 9 May 2013 pages 45 - 48

[95] Transcript of Proceedings 10 May 2013 page 34

[96] Public Advocate submissions 14 June 2013 at [12]

[97] Transcript of Proceedings 10 May 2013 page 41

[98] Chief Psychiatrist submissions dated 3 June 2013 at [41]

[99] Chief Psychiatrist submissions dated 3 June 2013 at [40]

[100] ADACAS submissions dated 5 July 2013 page 1

[101] ADACAS submissions dated 5 July 2013 page 1

[102] Transcript of Proceedings 9 May 2013 page 72

[103] Transcript of Proceedings 9 May 2013 page 72 Line 20

[104] Transcript of Proceedings 9 May 2013 page 72

[105] Transcript of Proceedings 9 May 2013 page 72

[106] Transcript of Proceedings 10 May 2013 page 36

[107] Transcript of Proceedings 10 May 2013 pages 42-43

[108] Transcript of Proceedings 10 May 2014 page 41

[109] Transcript of Proceedings 10 May 2013 page 40-41

[110] Transcript of Proceedings pages 19- 20 and 25 and 10 May 2013 pages 16-17 and 64; Chief Psychiatrist submissions dated 20 February 2013 at [20]

[112] Report of Dr Wurth dated 10 October 2013; report of Dr Wurth dated 5 April 2013 and Transcript of Proceedings 10 May 2013 pages 54-55

[113] Transcript of Proceedings 9 May 2013 page 85 at Line 20-45; Transcript of Proceedings 10 May 2013 page 3

[114] Transcript of Proceedings 9 May 2013 page 51

[115] Public Advocate submissions dated 20 November 2014 at [5]

[116] Chief Psychiatrist submissions dated 2 August 2013 at [20]; Transcript of Proceedings 10 May 2013 page 67

[118] Chief Psychiatrist submissions 2 August 2013 at [20]

[119] Public Advocate submissions dated 20 November 2014 at [11]

[120] Report of Dr Dasgupta dated 1 May 2014

[121] Public Advocate submissions dated 20 November 2014 at [12]

[122] Chief Psychiatrist submissions dated 7 November 2014

[123] Email from Ms Lynch to the Public Advocate dated 16 May 2014

[124] Chief Psychiatrist submissions dated 7 November 2014 at [9]

[125] Report of Dr Ratnayake dated 7 October 2014

[126] Chief Psychiatrist submissions dated 7 November 2014, ADACAS submissions dated 5 December 2014 at page 6, AFI submissions dated 4 December 2014

[127] ER Participation in ADACAS Supported Decision-making Project filed 26 November 2014

[128] Report of Sue Houghton from the Public Advocate dated 7 October 2014

[129] AFI submissions dated 4 December 2014

[130] See for example HRC submissions dated 25 January 2013 at [25]-[33]; ADACAS submissions dated 25 January 2013 page 4; Chief Psychiatrist submissions dated 20 February 2013 at [12]-[14]

[131] Transcript of Proceedings 9 May 2013 page 45 lines 30-45

[132] Transcript of Proceedings 9 May 2013 page 47 lines 40-45

[133] Report dated 29 November 2012 page 8 at [1]

[134] Report dated 29 November 2012 page 8 at (d)

[135] Report dated 29 November 2012 page 8 at (d)

[136] Report dated 29 November 2012 page 8 at (d)

[137] Report dated 29 November 2012 page 8 at [1] and (d)

[138] Transcript of proceedings 9 May 2013 page 47 at lines 40 to 45

[139] Transcript of Proceedings 9 May 2013 pages 68 to 69

[140] Report dated 29 February 2012 page 2

[141] Report dated 29 February 2012 page 3

[142] Report dated 29 February 2012 page 2

[143] Report dated 29 February 2012 page 4

[144] Report dated 29 August 2012 page 4

[145] Transcript of Proceedings 9 May 2013 page 85 at lines 20 -45

[146] Transcript of Proceedings 9 May 2013 at pages 85-100

[147] Transcript of Proceedings 9 May 2013 page 110

[148] Transcript of Proceedings 10 May 2013 page 14

[149] Transcript of Proceedings 10 May 2013 pages 19 to 20

[150] Transcript of Proceedings 10 May 2013 page 11

[151] Report of Dr Wurth dated 18 November 2011 page 3

[152] Transcript of Proceedings 10 May 2013 pages 16-17

[153] Transcript of Proceedings 10 May 13 page 36

[154] Transcript of Proceedings 9 May 2013 page 29, lines 20 to 40

[155] Transcript of Proceedings 9 May 2013 page 19, lines 10 to 45

[156] Transcript of Proceedings 9 May 2013 page 36, lines 20 to 45