"K" v St Vincent's Hospital Sydney Ltd

Supreme Court of NSW|2021-08-10|Before: Ward CJ, Parker J, Bell P, Leeming JA

Judgment

HER HONOUR: This is an application by notice of motion filed on 12 April 2021 by the plaintiff ("K") for a stay of medication ordered by the Mental Health Review Tribunal (the Tribunal) on 15 September 2020. The order is one of various community treatment orders that have been made pursuant to s 51 of the Mental Health Act 2007 (NSW) in respect of the plaintiff for the treatment of a diagnosed delusional disorder.
This notice of motion comes a year after a similar notice of motion was filed on 12 May 2020 by the plaintiff seeking the cessation of medication ordered to be administered under an earlier community treatment order made in 2019 (the 2019 Community Treatment Order). That application was heard and dismissed by Parker J on 28 August 2020 (K v St Vincent's Hospital Sydney Ltd (No 2) [2020] NSWSC 1097) in a decision that was the subject of an unsuccessful application for leave to appeal (JK (a pseudonym) v St Vincent's Hospital Sydney Ltd [2021] NSWCA 7 per Bell P and Leeming JA).
On the present notice of motion, the parties agreed (and I confirmed this with them when the matter was before me for directions in the applications list) that the application could be determined on the papers by reference to the material filed and submissions made by the respective parties (including submissions made before Parker J on the previous application). I have had the opportunity to review those submissions and set out below my reasons for dismissing the present application.

Background

On 19 September 2019, the Tribunal made the 2019 Community Treatment Order, including for the administration of monthly injections of an anti-psychotic drug (Paliperidone) to the plaintiff for treatment of his diagnosed delusional disorder.
By amended summons seeking leave to appeal filed on 15 May 2020, the plaintiff sought leave to appeal the decision of the Tribunal to impose the 2019 Community Treatment Order.
On 17 August 2020, Parker J dismissed the notice of motion seeking the cessation or stay of the 2019 Community Treatment Order.
By summons filed on 28 August 2020, the plaintiff sought leave to appeal the Parker J's decision. The application for leave to appeal was dismissed on 9 February 2021 with costs.
On 15 September 2020, the Tribunal made a further Community Treatment Order in respect of the plaintiff's treatment, in similar terms to the 2019 Community Treatment Order (the 2020 Community Treatment Order).
The 2019 Community Treatment Order expired on 18 September 2020 (and hence the plaintiff is no longer subject to its terms). The currently applicable Community Treatment Order is therefore the 2020 Community Treatment Order.
Leave was granted on 9 December 2020 for the amended summons to be amended further to include reference to the 2020 Community Treatment Order.

Plaintiff's submissions

The plaintiff has filed lengthy written submissions responding to various matters in the defendant's submissions and setting out the plaintiff's position on the current application.
So, for example, the plaintiff takes issue with the statement at [2] of the defendant's submissions to the effect that the plaintiff is required to submit to three-monthly visits with a psychiatrist (Dr Matthew Cullen) or at such other interval as Dr Cullen determines. The plaintiff says that it is unclear as to whether these visits are as per Dr Cullen's directives or are to be "at least every three to six months"; and the plaintiff cavils with the proposition that Dr Cullen typically sees him every three months (maintaining that generally, Dr Cullen "schedules an emergency meeting" with him before the next Community Treatment Order hearing before the Tribunal - maybe once or twice per year).
Insofar as the defendant relies upon the earlier submissions made in relation to the first motion (in respect of the 2019 Community Treatment Order), the plaintiff similarly refers to his submissions on that application and his responses to Parker J's decision in a summons (judicial review) filed on 28 August 2020.
In recapping those submissions, the plaintiff emphasises that the inherent power to stay the execution of a judgment, or to order that a stay be put in place, where the requirements of justice demand it is a discretionary power not to be exercised lightly. The plaintiff submits that there are particular and extraordinary circumstances in the present case which call for the exercise of that power to stay the 2020 Community Treatment Order which the plaintiff maintains directly interferes with his statutory right to conduct his appeal (because it is submitted that this requires him to have "full access" to his cognitive facilities).
The plaintiff argues that he cannot in good conscience proceed with an appeal "which could retrospectively claim to have been fair" when he is all the while suffering the "cognitive restrictions" imposed by the defendant. The plaintiff maintains that the claimed benefits of the medication are "completely (and knowingly) spurious and facile" and says that the asserted detriments should the medication be terminated have nothing to do with the medication (and "are just as present now as ever"); it being said that they are the direct result of the defendant's refusal to deal with this problem ethically.
The plaintiff submits that he was open to continuing the debilitating medication if he were able to secure competent legal representation but that this has proved impossible; and therefore, that in circumstances where he must be self-represented and the medication causes evident deficits, the discretion must be exercised in the interests of justice.
The plaintiff maintains that the only aspect of the 2020 Community Treatment Order that he seeks to have stayed is the medication order (not the entirety of the orders there made) and says that it is irrelevant that the medication order might be seen to be the most substantial element of those orders.
The plaintiff also reiterates his submissions made earlier to the effect that the evidence on which the Tribunal proceeded was "misleading and deceptive, and downright fraudulent" but says that what is critical for present purposes is not whether the Tribunal rightly made the Community Treatment Order but whether there can be a fair appeal under that finding (while the plaintiff is, as he contends, cognitively impaired as a result of that order).
The plaintiff's position is that he has wrongly and forcibly been subjected to medication and that he should not be hampered from establishing this. He contends that liberating him from the constraints of the medication could not possibly be unfair to the defendant; that the benefits of medication claimed by the defendant are "completely dishonest", and that the alleged dangers of non-medication (which I note include homicidal or violent action) remain "ever-present". The plaintiff regards the position in which he is presently placed as a challenge to his integrity (referring to his cognitive hands being tied).
As to the submissions made by the defendant on the present application, the plaintiff accepts that he bears the onus of demonstrating a proper basis for the grant of the stay but maintains that he has provided sufficient evidence that he will suffer incurable prejudice if the stay is not granted. It is submitted that "refusal of the stay is itself based on the prejudicial double-edged presumptions that: my self-reported complaints about the notion that the cognitive strain I am suffering under the medication (saying nothing about the significant physical and emotional strain) must be delusional, and, that the defendant is not acting criminally - having had more than a decade to grasp and deal with the true nature of this moral dilemma, which was designed to escalate even to physical violence were I to refuse to incriminate myself". The plaintiff says that the core issue is whether or not one "should agree to incriminate themselves in this light".
The plaintiff cavils with the proposition put for the defendant that, in essence, nothing has changed except that the 2020 Community Treatment Order has replaced the 2019 Community Treatment Order. The plaintiff contends that even without further evidence of the mental damage he has been suffering there is abundant evidence that the medication is harming him mentally. The plaintiff points to the observation by Parker J to the effect that where the truth lies between the rival contentions of Dr Cullen and the plaintiff would be a matter to be determined at the appeal and contends that this is alarming in so far as it suggests that there might be a further explanation. The plaintiff says that further evidence of impairment caused by the medication is attached to his affidavit accompanying the notice of motion (referring to the product disclosure information on Invega Sustenna (Paliperidone) there attached).
As to the defendant's submission that there is no evidence which demonstrates the plaintiff will suffer serious injury or prejudice should the 2020 Community Treatment Order remain in place (or of an alternative treatment plan, or medical assessment which discloses a proper basis for the stay of the 2020 Community Treatment Order), the plaintiff says that he has already demonstrated such a risk (by reference to his inability to proceed with his appeal "unencumbered by the interference with [his] mind"), which he says will indeed ruin his ability to conduct the appeal (albeit he accepts that it would not do so completely - just to the extent that Paliperidone causes "confusion" and "problems thinking clearly").
The plaintiff accepts that he has had problems securing alternative medical assessment, which he attributes to a number of things: first, the cost of an independent forensic psychiatric report; second his inability to afford a lawyer to retain an independent forensic psychiatrist; third, the suggestion that the forensic psychiatrist engaged by the Law Society of New South Wales lacked the courage to oppose Dr Cullen (and there is a complaint of incompetence or disingenuity on the part of that psychiatrist). Complaint is made as to Mr Westmore's report as suffering from "confirmation bias". The plaintiff says that there is a proper basis for the stay because he cannot get the real help he needs without it.
The plaintiff's adamant position is that if he is not allowed to appeal the decision of the Tribunal to place him under a Community Treatment Order other than whilst being medicated by the defendant, then this renders the appeal abortive and nugatory.
As to the submissions made by the defendant in relation to the affidavit evidence of Dr Cullen, the plaintiff says that questions as to the benefits or detriments of the medication are for the substantive matter (not the present application to stay the medication). However, he reiterates the matters argued in his affidavit of 20 June 2020, in response thereto (and his earlier submissions), going on to submit that statements in Dr Cullen's report constitute crimes under the Crimes Act 1900 (NSW) "as does the preparedness to be an accessory after the fact to the violence (still!) being incited, with which I remain just as committed to respond as prior to the medication (although, arguably more disabled to) - including 'homicide' by way of self-defence and the defence of others, which I have every intention to maintain even if/when this despicable Community Treatment Order is set aside, and regardless of whether authorities charged with addressing such disturbances do that, or make up all kinds of outrageous 'justifications' not to, instead". The plaintiff makes numerous complaints against Dr Cullen in this context.

Defendant's submissions

The defendant opposes the orders sought in the application before me, essentially on the same basis as the defendant opposed the first motion filed on 12 May 2020. In opposition to that motion, the defendant relied on affidavits of Dr Matthew Cullen affirmed on 12 June 2020 and 1 March 2021, respectively. The defendant also relies on the submissions dated 11 August 2020 previously filed in relation to the application in respect of the 2019 Community Treatment Order and points to the reasons of Parker J in dismissing that application.
The defendant submits that the evidence filed in support of the plaintiff's second motion does not advance the evidence that was relied upon in the plaintiff's unsuccessful first motion; and says that, in essence, nothing has changed except that the 2020 Community Treatment Order has replaced that made in 2019. It is submitted that there are no circumstances disclosed which demonstrate that any prejudice or unfairness would be occasioned by the continuation of the 2020 Community Treatment Order, save for the plaintiff's dissatisfaction at his diagnosis and the dispute as to the need for the 2020 Community Treatment Order.
In particular, it is said that the present application fails to identify that a decision against the exercise of the discretion to order a stay would have a ruinous impact on the plaintiff's ability to conduct the appeal. It is said that, as was the case in the context of the first motion, there is still no demonstrated risk that the appeal could not be conducted if the stay were not granted (including any evidence which demonstrates the plaintiff will suffer serious injury or prejudice should the 2020 Community Treatment Order remain in place). Further, it is said that there is no evidence of an alternative treatment plan or medical assessment which discloses a proper basis for the stay of the 2020 Community Treatment Order (pointing to the risk, in those circumstances, if the stay were to be granted).
The defendant notes that in his affidavit evidence of 12 June 2020, Dr Cullen has described some effects experienced by the plaintiff as a result of his Paliperidone treatment, but that Dr Cullen's opinion is that these are outweighed by the benefits of the treatment (including improved levels of functioning, socialisation and a reduced propensity to act on fixed delusional beliefs) (see Dr Cullen's affidavit affirmed12 June 2020 at [30], [33]).
The defendant notes that Dr Cullen is of the opinion that cessation of the medication would lead to an increase in his delusional symptoms, with a higher likelihood of homicidal thoughts and a potential to act on those thoughts (see Dr Cullen's affidavit affirmed 12 June 2020 at [34]-[35]). The defendants also refers to the report dated 4 May 2020 of a psychiatrist, Dr Bruce Westmore, who assessed the plaintiff on 28 April 2020 (see his report, a copy of which is annexed to Dr Cullen's affidavit affirmed 12 June 2020). The defendant says that there is no evidence traversing the views of Dr Cullen and Dr Westmore in this regard.
The defendant submits that, based on the evidence of Dr Cullen and Dr Westmore, the grant of a stay would expose the plaintiff to a risk of relapse, without alternative mechanisms for support or alternative treatments in place. It is submitted that the interests of justice mitigate against the exercise of the court's discretion to grant a stay of the 2020 Community Treatment Order and that therefore, the plaintiff's notice of motion filed 12 April 2021 ought to be dismissed, with costs.
I have noted earlier, the plaintiff's response to those submissions.

Determination

The principles applicable on the grant of a stay of orders pending determination of an appeal were not in dispute by the parties (the only dispute being as to their application in the present case).
The Court has an inherent power to stay a decision the subject of an appeal when it is necessary for the administration of justice (see New South Wales Bar Association v Stevens (2003) 52 ATR 602; [2003] NSWCA 95 at [83]-[84] per Spigelman CJ (with whom Meagher and Sheller JJA agreed). I accept that it is not necessary for the grant of a stay that special or exceptional circumstances should be made out and that it is sufficient that the applicant for the stay demonstrates a reason or an appropriate case to warrant the exercise of discretion in his favour (see Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 (Alexander v Cambridge Credit)).
In Port Macquarie-Hastings Council v Diveva Pty Ltd (t/as Mid Coast Road Services [2017] NSWCA 4 at [29], Payne JA summarised the factors taken into consideration in stay applications by reference to Alexander v Cambridge Credit and Kalifair Pty Ltd v Digi-Tech (Aust) Ltd; McLean Tecnic Pty Ltd v Digi-Tech (Aust) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383 (Kalifair) as follows: a. The onus is upon the applicant to demonstrate a proper basis for a stay which will be fair to all parties. b. The court has a discretion involving the weighing of considerations such as balance of convenience and the competing rights of the parties. c. Where there is a risk that if a stay is granted, the assets of the applicant will be disposed of, the court may refuse a stay. d. Where there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay. e. The court will not generally speculate upon the appellant's prospect of success, but may make some preliminary assessment about whether the appellant has an arguable case, in order to exclude an appeal lodged without any real prospect of success simply to gain time. f. As a condition of a stay the court may require payment of the whole or part of the judgment sum or the provision of security.
In Kalifair, the Court of Appeal stated that prior to considering the balance of convenience, the applicant must show that the appeal raises serious issues for determination and that if a stay is not granted there is a real risk of the applicant suffering prejudice or damage that cannot be redressed by a successful appeal.
The applicant's argument, in essence, is that he will be prejudiced in conducting his appeal if the medication continues because he will be doing so under the "cognitive restrictions" caused by the medication. That seems to invite an analysis into the merits or otherwise of the very decision the subject of his appeal (and hence is a somewhat circular argument). Accepting, however, that the applicant genuinely believes that the medication will have a deleterious impact on the manner in which the appeal is conducted, I nevertheless cannot conclude that the appeal would prove abortive if the stay were not granted. No doubt, in considering the appeal, consideration will be given to any perceived deficiencies in the ability of the applicant to conduct that appeal while he is on medication. Nor do I accept that refusing the stay is likely to cause prejudice that cannot be redressed in the event that the appeal is successful (since in that event all that will have happened is that there has been a delay in the period until the impugned medication order is set aside). The competing consideration is as to the perceived risk involved in ceasing the medication prior to the very hearing in which the necessity or otherwise of continuing the medication is to be determined.
I note that, as was the case with the earlier stay application, the stay of the applicant's compulsory medication order would alter the status quo and that this remains a significant consideration. I am not persuaded by the evidence before me in this application that the applicant has shown that he will suffer sufficient prejudice or damage if the compulsory medication order is not stayed to outweigh the perceived risk of the cessation of medication. In particular, I do not find that the standard information page as to the side effects of Paliperidone is evidence of any side effects indeed suffered by the applicant nor of their impact on his ability to bring his appeal. The evidence of Dr Cullen (albeit challenged by the applicant) is that the side effect suffered by the applicant as a result of the medication is weight gain, and that otherwise the medication has provided several benefits including improved functioning and socialisation, increased capacity to study and reduction in thoughts of harming others. While I do not doubt that the applicant genuinely believes that the medication is impacting his cognitive ability, there is insufficient evidence to support this or to establish that the applicant will suffer prejudice or damage if the stay is not granted that could be redressed if the appeal is successful. Ultimately, I am not persuaded that a stay should be granted.
To my mind, the interests of the just, quick and cheap resolution of the real issues in dispute lie in the substantive hearing taking place in order to determine the merits of the appeal without delay in interlocutory applications of the present kind.
As to costs, I see no reason why costs should not follow the event.

Orders

For the above reasons, I make the following orders: 1. Dismiss the plaintiff's notice of motion filed 12 April 2021. 2. Order that the plaintiff pay the defendant's costs of the notice of motion filed 12 April 2021.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 August 2021

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