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[2011] ACAT 21
ACT Civil and Administrative Tribunal
2011-01-27
Original judgment source is linked above.
CHIEF PSYCHIATRIST and A (Mental Health) [2011] ACAT 21
Catchwords: MENTAL HEALTH - Tribunal procedure generally - procedure for application for order when subject person in an in-patient - whether criteria for making a psychiatric treatment order are met
Legislation: Health Records (Privacy and Access) Act 1997(ACT), ss 15 and 17
Mental Health (Treatment and Care) Act 1994 (ACT) ss 23, 24, 26, 28, 36J, 36L, 41, 50, 78, 80, 82, 85, 86 and 87, and Dictionary
ACT Civil and Administrative Tribunal Act 2008 (ACT), ss 7(b), 8, 23 and 26
List of cases: Applicant VEAL of 2002 v MIMIA [2005] HCA 72
Kingham v Cole [2002] FCA 45; (2002) 118 FCR 289
O'Rourke v Miller [1985] HCA 24; (1985) 156 CLR 342
CIVIL AND ADMINISTRATIVE TRIBUNAL ) MH 202 of 2009
On Thursday 27 January 2011 the ACT Civil and Administrative Tribunal held an inquiry regarding the above-mentioned application pursuant to Section 24 of the Mental Health (Treatment and Care) Act 1994 in respect of A.
AND THE TRIBUNAL ORDERS that A be subject to a Psychiatric Treatment Order.
Unless sooner revoked, this order has effect for 6 months.
IT IS NOTED that A has the capacity to consent to the order but refuses to do so.
THE TRIBUNAL NOTES that it will review this order on its own motion prior to expiry.
27 January 2011 in relation to A. Broadly speaking, the PTO authorises the Chief Psychiatrist to treat A on an involuntary basis and to determine what treatment he receives and how, when and where it is provided. It is expressed to have effect for 6 months. The Tribunal noted that it would review the order on its own motion before it expires.
Procedural fairness requires that reasonable notice be given of a hearing and of the matters that are in issue. Participants need to have time to adequately prepare for a hearing. Participants also need to have an adequate opportunity to address the matters in issue.
The procedures adopted in a hearing are largely determined by the nature of the application before the Tribunal. What is reasonable and adequate may vary according to both the authorising law relevant to the application and the issues raised by the particular application. Some cases require a procedural framework that is similar to frameworks used in adversarial proceedings in courts.[6] Other cases will require much less formality and greater flexibility.
The Tribunal may inform itself as it thinks fit.[7] Some cases will have 'parties' who are adversaries presenting their information to the Tribunal. Other cases engage participants in an inquisitorial process in which the Tribunal itself determines and obtains much of the information on which it relies.[8]
Information can be provided in documents or by witnesses giving oral or written evidence. There is no general right for a person to cross-examine witnesses.[9] The Tribunal may draw on its own expertise and experience when evaluating information. Participants should be told when tribunals are relying on the expertise and knowledge of its members.
The Tribunal may, in some circumstances, decide that participants should not be given copies of documents containing information on which it relies; for example, documents that are subject to confidentiality restrictions. If copies of documents that are before Tribunal members are withheld, participants must at least be aware of the general content of those documents and have, save in exceptional circumstances, an opportunity to respond to matters that the Tribunal may take into account.[10]
Ultimately, Tribunal decisions must be based on relevant information that tends, logically, to prove what is asserted. The information must have, in other words, probative value.
Procedures for Applications under the MHA where the Subject Person is an in-patient
The Tribunal must list its inquiry quickly and once started, complete it quickly. Notice of the hearing may be as little as three days. This limits the time that both the applicant and the subject person have to prepare for a hearing.
An ACT Health employee works at The Canberra Hospital in the position of Tribunal Liaison Officer to facilitate the process. A duty lawyer from Legal Aid ACT visits the hospital regularly to ensure that there is ready access to legal advice and assistance. The Public Advocate of the ACT is also available. These services play an important role in ensuring procedural fairness in light of the limited time frame.
Applications are prepared on behalf of the Chief Psychiatrist. They are lodged with the Tribunal by fax or email. A copy of the application is usually handed to the subject person by the Tribunal Liaison Officer after it is lodged with the Tribunal. She explains the application, the hearing process and the availability of legal advice and advocacy. The hearing notice is also handed to the person once it is issued by the Tribunal. Several attempts may be made to give the documents to a subject person who refuses the application or who is too unwell to receive it.
Contrary to the usual fair trial principles, hearings are held in private rather than in public to preserve the confidentiality and dignity of the subject person.[12] There are statutory limits on the people who can be notified of a hearing, the people who can attend and participate in a hearing and the people who can be notified of the outcome.[13] The Tribunal may subpoena the subject person to require their attendance, or may refuse to allow the subject person to appear at a hearing where an appearance is likely to substantially increase the risk to the person's own health or safety or the risk of serious harm to others.[14] Both these things rarely happen. A subpoena may be issued, for example, for a subject person who is on remand or who is a prisoner.
A subject person may be refused the right to appear if, for example, they have made recent threats to harm members of the Tribunal or medical staff.
The Tribunal holds its inquiry in a meeting room at the hospital to facilitate the subject person's attendance. In some cases, the subject person will be acutely ill. They may have limited capacity to understand the application or to participate in an inquiry. The Tribunal must proceed with its inquiry nevertheless because of the time frames,[15] but may note that it will re-list the matter on short notice to review any order made at the request of the subject person once they are well enough to participate. If the person is unable to participate, the Tribunal may ask the Legal Aid duty lawyer or the Tribunal Liaison Officer, if they have any information about the views and wishes of the subject person. The Tribunal may also receive letters or notes from the subject person and will take those documents into account when making a decision.[16]
Relatives, friends or support people may attend and participate in the hearing with the leave of the Tribunal.[17] The views of the subject person are always sought before leave is granted. Very occasionally, a person may be given leave to attend or be refused leave to attend, contrary to the wishes of the subject person.
The Tribunal must be constituted by at least one presidential member and one non-presidential member with a relevant interest, experience or qualification.[18] As a matter of practice, the Tribunal usually sits as a panel of three members; namely, the presidential member, a psychiatrist and a community member.
The Tribunal and the subject person have the application. The application should set out the basis on which an order is sought. It should indicate the information that is relied on to support the application. It is not reasonable to expect that an application will be a detailed treatise. The short statutory time frames do not allow for that. But given the serious consequences of an order, the application must have sufficient detail to allow both the subject person and the Tribunal to know why the application is made and to be able to respond to it.
The Tribunal must consider an appropriate assessment by a psychiatrist or psychologist before making an order.[19] Assessments may be based on an analysis of several factors including any relevant medical and psychiatric history; reports from external sources about recent behaviour, for example, other health professionals, friends, family, police, neighbours and work colleagues; reports of other current medical investigations, for example, drug and alcohol analysis, blood analysis, CT scans; observations recorded by nursing and other staff at the facility while the subject person is an in-patient, and the assessor's own observations. If the application is completed by a psychiatrist, the assessment may be contained in the body of the application. In other cases, it may be attached as a separate document or contained in notes provided to the Tribunal. It need not be formally identified as 'the assessment' - it is sufficient if it can be identified as such from its content. Again, the assessment will not be a detailed written treatise because the short time frames do not allow for that, but it must be sufficient for the Tribunal to be satisfied that the assessment has probative value. Aspects of the oral information given to the Tribunal during the inquiry may also form part of the assessment.
If an application or assessment relies on information from external sources, the applicant (and the assessor) should be confident about the reliability of the information and if relevant, acknowledge any potential weakness in the information. Any potential weakness should be factored into the assessor's analysis. Third parties who provide information are neither accusers nor witnesses for the Tribunal. They provide information that may be relevant for the assessment process. The subject person can challenge the information and ask the Tribunal to evaluate the assessment in the light of any unreliability.
In addition to the application, the Tribunal members have a chronology that lists previous emergency actions or applications made to the Tribunal in respect of the subject person. The outcome of any application is shown. This enables the Tribunal to better understand relevant medical history of the person.[20]The information may also be relevant to the Tribunal's consideration of the criteria for making an order. The presiding member has the Tribunal's file that includes the current documents as well as applications, reports or orders made in respect of the subject person in the past. The Tribunal's files in these matters contain its records in respect of the person, rather its records of the application immediately before it. If the Tribunal members look at any historical material, the subject person is asked about it.
The Tribunal may also be provided with copies of notes relating to the subject person's contact with mental health services before and during any admission in the days immediately before the inquiry. The notes sometimes include information given by third parties such as police, work colleagues, friends or family; clinical observations and assessments of physical and mental health, and notes made by nurses, registrars, psychiatrists, social workers, occupational therapists and other staff. These notes are health records to which the provisions of the Health Records Act apply. The Tribunal does not have the consent of the record keeper to give copies of any of the records to any other person or entity. The Tribunal recognises that this is controversial in terms of the rules of procedural fairness. Most of the relevant information in notes will (or should) be reflected in the application so that the subject person is aware of it.
Sometimes, the notes contain information that is expressed to have been given in confidence by a third party and, sometimes, there is a concern that provision of the information in the notes may constitute a significant risk to the life or to the physical, mental or emotional health of the subject person or a third party.[21]Questions are asked of the applicant and the subject person about any information not otherwise in the application to which Tribunal members refer. The questions may be general if they relate to information that was given in confidence, or where there is a significant risk.
When the inquiry commences, the applicant[22]or the representative is usually asked to explain the application or provide an update about the subject person and about any relevant events since the application was prepared. They may be invited to expand on or to clarify aspects of the application, any current treatment and its benefits and risks, and the planned treatment and its benefits and risks. They may be asked their opinion of the subject person's capacity to consent to proposed treatment or to an order.[23] They may be asked about why they say the order is necessary and about the proposed term of any order. The subject person and other people appearing at the inquiry are given an opportunity to ask them questions.
Questions are asked of the subject person about the things said in the application, and about their history or things in notes that are relevant. They may be asked about their current living arrangements, their social supports and their future plans.
The subject person and any other people appearing at the inquiry are invited to make comments (or submissions) about the application generally, to give their views about what has been discussed, and to talk about other relevant things they wish to draw to the Tribunal's attention. The subject person may participate themselves or through any legal representative. Usually, the Tribunal hears from both the subject person and any lawyer.
Tribunal members then indicate whether an order will be made and if so, the length of the order and whether it will be reviewed before it expires.
This is a general overview. The Tribunal scrutinises the application regardless of whether the subject person participates. The subject person may be very unwell when they attend and it may be difficult for the Tribunal to ask questions of anyone or to obtain relevant information or for the subject person to participate effectively. The Tribunal's broad power to review orders on application or own motion,[24]the limits on the time for which orders may be in force,[25]and the obligation of the Chief Psychiatrist to notify the Tribunal if satisfied that an order could no longer be made, provide review safeguards for a subject person who does not or who is unable to effectively participate in an inquiry.
Admitted with elevated mood and beliefs of special powers such as ability to do special mathematical equations and to make connections between things. He had been walking approximately 15 hours a day in circles in his backyard to protest the treatment of his friend.
Dr Kai Kai Toh. In his report, Dr Toh noted the following information given by A about his use of the medication prescribed for him as a result of his admission to PSU:
Quickly stated that he had to cease his medications as it was affecting his eyesight which impaired his reading ability and therefore had to withdraw from his course...
...he is unwilling to be on pharmacotherapy for this. He says that he will sue us for putting him on medication.
It is possible that he also has bipolar disorder too but he is unwilling to be on pharmacotherapy for this...This is a shame: lamotrigine could be an ideal medication for him...I am of the belief that he will probably come back to our attention but given that he is a voluntary patient, is not willing to truly engage with us and has access to university services (GP and counselling) we felt that he could possibly be closed from our service for the time being.
On 20 January 2011, the Tribunal was notified that emergency action had again been taken in respect of A pursuant to section 41 of the MHA, and that he was at PSU. On 21 January 2011, the Tribunal ordered that he be detained for a further period pursuant to section 41(2) of the MHA. It was reported that A had been observed talking to himself and answering the TV by others including mental health crisis staff; that he had been providing 'evasive' answers to questions about suicidality; and that he had been spending increased money and had been observed by others to be acting bizarrely.
An application for a PTO was lodged on 24 January 2011. In summary, it said that A had been brought to hospital due to concerns from a number of people about erratic and impulsive behaviour. He was reported to be responding to the television, muttering to himself, blaming his cat for poor decisions and to have made a statement to the affect that he wanted to be killed by police in a confrontation. The application contained an opinion that A had "bipolar disorder, mixed episode". His manner was said to be mildly intimidating. It was said that A's mental state appeared to have deteriorated over recent weeks with an acute exacerbation in the past week, possibly due to the stress of university assignments.
At the inquiry held on 27 January 2011, Dr Butterfield confirmed that the treating team was of the opinion that A has a mental illness in the nature of a bipolar disorder. Further, the team was satisfied that A would benefit from medication. The purpose of the application was to provide A with a package of treatment including psycho education and assistance with social issues, to get him "back to his base line functioning and then to consolidate that". She said that given A's strong opposition to treatment, the treating team were of the view that a 6 month order would be preferable.
Dr Butterfield said that the diagnosis was based on the previous episode; the current reports that A was behaving unusually and causing concern to people who knew him immediately prior to admission; and an assessment of his behaviour by the treating team since his admission. She said that it was difficult to form a view as to whether his mental state had improved in the few days since his admission. She referred to an incident in which A had acted with significant hostility and suspicion towards her when she smiled at him. She believed this demonstrated some mild paranoia. She described his manner during his admission as having been intimidating to the point that she had felt unsafe, and therefore, reluctant to, explain the opinion and the reason for it, to him. She also acknowledged that on the other hand, A had been responsible and helpful during a stressful incident that had occurred at the PSU on the previous night. She indicated that a second opinion would be arranged at A's request, as soon as a psychiatrist was available.
A impressed as an intelligent and articulate man. When asked his views about the application, he expressed concerned that there were errors in documents prepared when he was admitted. For example, the documents apparently indicated that he was unemployed and had no money with him on admission; the address given for him was wrong. The Tribunal accepted what he said about this. The documents were not before the tribunal and were not relevant to the issues being considered.
He was also very concerned that he had not been able to obtain copies of legislation readily and that he was not orally advised of his rights under the MHA on admission. These are important things that are required under section 50 of the MHA, although the failure to comply with them does not vitiate proceedings before the Tribunal. The Tribunal acknowledged A's concerns and drew his attention to the role of the Official Visitor. He had obtained a copy of the MHA shortly after admission and had it with him in the hearing. He received a copy of the application on the day it was prepared and met the Legal Aid duty solicitor that day. He was notified of the Tribunal hearing on 24 January. Although the notice was short by standards in place in other jurisdictional areas, the Tribunal was satisfied that A had adequate notice of the hearing and of the matters relied on in the application and that he had had an opportunity to receive legal advice and to arrange representation for the hearing. There was no basis for adjourning the inquiry to give him more time to prepare, nor was it in his interests to do so.
In relation to the earlier application, A said he had taken medication for 12 weeks after the 2009 admission but had not continued it because the medication made him lethargic and caused him to sleep for long periods. This information differs from that reported by Dr Toh in 2009 which indicates that A took medication for a much shorter period and stopped shortly after his discharge from PSU. Given A's strong objection to medication, Dr Toh's report is preferred.
45. The four criteria that must be met before the Tribunal can consider making a PTO are set out in Section 28 of the MHA. The section provides:
28 Criteria for making psychiatric treatment order
_The ACAT may make a psychiatric treatment order in relation to a person if - _
_(b) the ACAT has reasonable grounds for believing that, because of the illness, the person is likely to - _
(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 being an involuntary patient.
mental illness means a condition that seriously impairs (either temporarily or permanently) the mental functioning of a person and is characterised by the presence in the person of any of the following symptoms:
(a) delusions;
(b) hallucinations;
(c) serious disorder of thought form;
(d) a severe disturbance of mood;
(e) sustained or repeated irrational behaviour indicating the presence of the symptoms referred to in paragraph (a), (b), (c), or (d).
"concerns from a number of parties about his erratic and impulsive behaviour with those around him reporting that he had been seen responding to the television, blaming his cat for poor decisions...and muttering to himself. He had also reportedly made comments ...about saying Goodbye, asking others to look after his cat or wanting to be killed by the police in a confrontation..."
A agreed that these things had happened but he was dismissive of them. He did not agree that there was anything unusual about his behaviour in recent weeks. He agreed that he could be angry and irritable. He said that his flatmate had made a list of things he had been doing that the flat mate thought were "wrong". A had facetiously sought to blame some of the things on the cat. He agreed that he had been responding to the television, but he did not regard that as unusual. Likewise, talking to oneself was not unusual.
He did not believe that he had made a statement that he wanted police to shoot him, but said that if he had, it had been said in jest. A's mother confirmed by gestures that A had made such a statement.
A rejected any connection between his irritability or intimidating or impulsive behaviour and a mental illness. He did concede that he was affected by stress and said that before the emergency action was taken, he had made a list of things he needed to do to develop some habits in his life. He was in the process of making an appointment to see a counsellor about this when the emergency action was taken. This goes some way to supporting a conclusion that his behaviour was concerning at this time.
A's mother told the Tribunal that it was her observation that he was greatly affected by stress and that stress leads him to become irritable and agitated. She had a different view from that of A about his behaviour in the last few weeks. She said that in the last few months he had been under a lot of stress relating to issues such as accommodation, income and study. It had been worse more recently. The stress and related agitation affected his study significantly. It had also affected his accommodation. The Tribunal was told that A was now unable to return to his previous accommodation as a result of his behaviour before the emergency action was taken and that a new home had to be found. A's mother confirmed that he had been well during 2010, and noted that she believed that he had cut down alcohol and cannabis use in that period. There may have been cannabis and alcohol use recently.
The notes before the Tribunal contained information from separate sources about different incidents in the few days immediately before his hospitalisation. The reports are consistent with each other and with the references in the application. The reports were given on a confidential basis and so, were not given to A. There were also notes of an assessment undertaken in A's home by mental health crisis staff. These notes describe observations of A talking to himself, significant agitation, pressure of speech, pinpoint staring while the crisis staff were present - this was consistent with the other reports and with the information in the application set out in paragraph 48. The observations are also consistent with the assessment of the treating team and their own observations of A since admission. Given these consistencies, the Tribunal members were satisfied that the information in the application was correct.
A downplayed or ignored the concerns and lacked insight into his behaviour and mood.
The Tribunal drew on the expertise of its psychiatrist member who was satisfied that the material taken as a whole, established, on the balance of probabilities, that A has a mental illness. In terms of the definition, the illness could be described at least as a severe disturbance of mood and repeated irrational behaviour indicating the presence of a severe disturbance. Dr Drew's view was that A had, in 2009, had an episode of mental illness from which he had recovered and that he was now experiencing a second episode from which he was also likely to recover with appropriate treatment. This view was discussed with A in the hearing.
_Because of the illness, the person is likely to - _
(i) do serious harm to himself, herself or someone else; or
(ii) suffer serious mental or physical deterioration;
unless subject to involuntary psychiatric treatment;
This criterion requires the Tribunal to be satisfied of two things. First, there must be reasonable grounds for believing that, because of the mental illness, one or other of the things described in paragraph (i) or (ii) is likely to occur. Secondly, the Tribunal must be satisfied that there are reasonable grounds for believing that those things are likely to occur unless there is involuntary psychiatric treatment.
While there is some evidence of suggestions of self-harm, evidence of anger and irritability with others and a reckless threat concerning police, the Tribunal is not satisfied that A is likely to do serious physical harm to himself or to others on the basis of the information it has.
A person can cause serious harm to themselves in a range of ways other than through a deliberate act of self harm. The Tribunal has long accepted that the concept of "harm" in s 28(b)(i) is a broad concept that includes harm caused by, amongst other things, misadventure, dis-inhibited behaviour, physical neglect and financial loss.
In this matter, there is evidence that A's behaviour has contributed to instability in his accommodation such that he has to find somewhere else to live when he is discharged. There is evidence that his behaviour has concerned other people sufficiently for them to be worried about his safety and for mental health crisis workers to intervene. Both things involve a serious harm in the context of social breakdown.
This is persuasive evidence that A's mental state was deteriorating in the few weeks before the hearing. The deterioration was serious in that it has led to loss of his accommodation and appears to have disrupted A's studies.
The Tribunal had reasonable grounds for believing that serious deterioration was likely to occur unless A was subject to involuntary psychiatric treatment. A told the Tribunal that he had agreed to a trial of medication, and involuntary treatment was not necessary. Dr Butterfield agreed that there had been some discussion of trialling a new treatment. The Tribunal was not satisfied that this was a settled agreement or that A would carry through on any agreement. He consistently and clearly indicated to the Tribunal his strong opposition to any medication because of side effects. The strength of his objections, as recorded by Dr Toh in 2009, did not appear to have changed. The Tribunal did not accept that he had taken medication for as long as he indicated in 2009. He also made it clear that he did not agree that he had a mental illness or that there was any basis or reason for treatment. In those circumstances, the Tribunal was not satisfied that he would engage in treatment and as a consequence, it was satisfied that it was likely that the deterioration in his mental state that had resulted in emergency action would continue in the absence of involuntary treatment. The Tribunal was satisfied that criterion 2 was made out.
(c) 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;
(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.
Ms Wearne, A's mother and Dr Butterfield, the Tribunal was satisfied that each of the requirements of Section 28 of the MHA were met and that it was otherwise appropriate to exercise its discretion to make a PTO notwithstanding A's objection to it.
[1] Section 24 of the Mental Health (Treatment and Care) Act 1994 (the MHA) provides that the tribunal must hold an inquiry - in these reasons the word "inquiry' is used interchangeably with the word "hearing".
[2] The phrase 'the subject person' is used in the MHA to mean the person who is the subject of the proceeding, See section 80 MHA
[3] Section 23 ACT Civil and Administrative Tribunal Act 2008 (ACAT Act)
[6] Some professional disciplinary actions, for example.
[7] Section 26 ACT Civil and Administrative Tribunal Act 2008
[8] Proceedings under the Guardianship and Management of Property Act 1994 and the Utilities Act 2000 for example.
[9] Kingham v Cole [2002] FCA 45; (2002) 118 FCR 289 at 295, O'Rourke v Miller [1985] HCA 24; (1985) 156 CLR 342
[10] See Applicant VEAL of 2002 v MIMIA [2005] HCA 72 for a discussion of this
[11] Section 41 MHA for example limits the time that a person may be involuntarily detained without a hearing and the time that the tribunal can take to review decisions and orders made under section 41. Section 85 provides that at least 3 days written notice must be given of a hearing. Section 36L places limits on time frames for reviews.
[12] Section 86 MHA
[13] Sections 85,80 and 87 MHA
[15] Adjourning a hearing may lead to a longer period of detention for a subject person - especially those who are acutely ill or require immediate treatment.
[17] Parents of minor children and guardians of adults do not require leave - see section 80 MHA
[18] Section 78 of the MHA
[19] See section 23 MHA and "assessment", Dictionary MHA. See section 26 of the MHA which has a long list of other things that must be taken into account.
[20] Section 26(l) of the MHA
[21] see Health Records Act sections 15 and 17
[22] The applicant named on the application does not need to attend (although they generally do) and may be represented by another person from the relevant treatment team.
[23] See the factors to be considered s26 MHA
List of cases: Applicant VEAL of 2002
MIMIA
(2002) 118 FCR 289
(1985) 156 CLR 342