Solicitors:
Plaintiff: Self represented
First Defendant: NSW Crown Solicitor
Second Defendant: NSW Crown Solicitor
Third Defendant: Norton Rose Fulbright
Fourth Defendant: Norton Rose Fulbright
File Number(s): 2015/00278611
[2]
INTRODUCTION
On 23 September 2015 the plaintiff (a self-represented litigant) filed a summons in the Protective List of the Equity Division of the Court, naming as defendants: The Mental Health Review Tribunal (the first defendant); Sydney Local Health District (the second defendant); Janssen-Cilag Pty Limited Pty Limited (the third defendant); and Johnson & Johnson Pty Limited (the fourth defendant).
The relief claimed in the summons includes:
1. an appeal against a Community Treatment Order made by the first defendant, against the plaintiff, on the application of an employee of the second defendant, under section 51 of the Mental Health Act 2007 NSW, on 26 August 2015; and
2. a diversity of prayers for relief, a common feature of which appears to be a claim for damages against the defendants jointly and severally.
In deference to section 162 of the Mental Health Act (which prohibits publication of the names of people involved in proceedings before the first defendant), pseudonyms are used in this judgment to maintain the anonymity of the plaintiff and others associated with the Tribunal proceedings.
If there is a common thread in the summons, as explained by the plaintiff in submissions in support of the summons, it is that the plaintiff contends that:
1. despite medical diagnoses over several years that he suffers from a schizoaffective disorder, he does not suffer from "mental illness" within the meaning of section 4(1) of the Act, save to the extent that he suffers from the side-effects of anti-psychotic medication (currently Risperidone Consta) administered to him, by depot injection, against his will.
2. the side-effects from that medication (described by him, idiosyncratically, as "Risperiditis", a term not known to the medical profession) have involved symptoms of "guilt, anxiety, despair and hopelessness", which he has described to medical authorities as "guilt attacks";
3. he is entitled to compensation of one sort or another because, he says:
1. he has suffered needlessly from "Risperiditis", when he should have been left to treat himself with alternative therapies not involving the administration of medication;
2. he has supplied to the second defendant materials relating to alternative therapies, for which he should be paid; and
3. he has a "civil bet" with the defendants in which he has wagered (on more than one occasion) that he is not mentally ill and, he says, they have lost that bet several times over.
1. the first and second defendants are liable to pay him compensation because they bear responsibility for the compulsory administration of anti-psychotic medication to him; and
2. as manufacturers or suppliers of anti-psychotic medication administered to him, the third and fourth defendants are also liable to pay him compensation.
The plaintiff's claims for compensation appear, from his summons and his supporting affidavit, to be based largely upon steps taken by him: (a) unsolicited, to deliver "alternative therapy" materials (including a CD about "sublimation" therapy as an alternative to medication for treatment of mental illness, and literature about alternative therapy strategies) to the NSW Department of Health, and to claim remuneration for doing so; and (b) unilaterally, to impose on those who treat him a wager (his oft-repeated "civil bet"), for increasingly large amounts, that he is not mentally ill.
The amount of compensation claimed by the plaintiff is said by him, in his summons and his affidavit, initially to have been for a sum of $500 million but recently to have been raised to $2 billion "to be earmarked for worthy causes".
More modest, but still patently exaggerated, claims for remuneration are made by the plaintiff in his affidavit. At different points he claims a fee of $25,000, $50,000, $100,000 or an hourly rate of $1,000 for submitting to an injection, or attending upon those responsible for administration of those injections and monitoring his health. His affidavit annexes a spreadsheet in which he calculates an alleged entitlement to $405,423.00.
Having been subject to Community Treatment Orders under the Mental Health Act since at least 2008, and generally having submitted to them, the plaintiff decided that he would not submit to the current order. This is because, he believes, to submit would be to act inconsistently with his claim to have won his "civil bet", and his underlying contention that he suffers from no mental illness.
He sees his appeal as a means of vindication of his claim that, but for the administration of anti-psychotic medication, he suffers no mental illness, and as confirmation of his contention that he has won his "civil bet" against all and sundry, not limited to the second defendant.
Shortly after the summons was filed, the first defendant filed a submitting appearance. It is not a necessary party to the plaintiff's appeal, the immediate subject of the present judgment. The plaintiff's true contradictor is the second defendant, which accepts responsibility for conduct of the case advanced against the plaintiff on the hearing of the appeal.
When the summons came before me as the Protective List judge on 7 December 2015:
1. the plaintiff and the second defendant agreed that:
1. urgency attaches to the hearing of the plaintiff's appeal against the Community Treatment Order; and
2. the appeal is to be treated as an appeal under section 163 of the Mental Health Act.
1. all parties agreed that no urgency attaches to the balance of the summons.
2. with the leave of the Court, and no objection by any party:
1. the second defendant filed a notice of motion (made returnable instanter) seeking relief against "Notices to Admit" served on the second defendant, by the plaintiff, pursuant to the Uniform Civil Procedure Rules 2005 NSW (UCPR), rules 17.3 and 17.4, in aid of his contention that he is not mentally ill; and
2. the third and fourth defendants filed a notice of motion (also returnable instanter) seeking, inter alia, orders (under UCPR rule 13.4) for summary disposal of the proceedings against them, which they contend to be an abuse of the processes of the court.
1. all parties agreed that orders be made to the following effect:
1. order that the respective notices of motion of the second, third and fourth defendants be heard together with the summons.
2. order (pursuant to UCPR rule 28.2) that the plaintiff's appeal under section 163 of the Mental Health Act be decided separately from, and in advance of, the determination of any other question in the proceedings.
3. order that any requirement for the plaintiff to have a tutor for the purpose of the hearing and determination of his appeal under section 163 of the Mental Health Act be dispensed with.
4. reserve for further consideration, if and as may be necessary, any question about whether the plaintiff has need of a tutor for the conduct of the balance of the proceedings.
1. without objection by any party, the third and fourth defendants were excused from the hearing of the section 163 appeal.
I ordered that any requirement for the plaintiff to have a tutor for the purpose of the hearing and determination of his appeal be dispensed with because to engage in a collateral inquiry about whether he is a "person under legal incapacity" (within the meaning of the definition of that term in section 3(1) of the Civil Procedure Act 2005 NSW as extended by UCPR rule 7.13) would be to invite satellite litigation which could subvert the right of appeal for which section 163 of the Mental Health Act provides.
In P v NSW Trustee and Guardian [2015] NSWSC 579 at [160]-[167] I took a similar approach to the question whether a "protected person" who had appealed from a financial management order made by the Guardianship Division of the NSW Civil and Administrative Tribunal ("NCAT") required a tutor. Allowing for differences in legislative context, the interests of justice in the present case require that the Court proceed to determination of the plaintiff's appeal without pausing to inquire about his competency to conduct the appeal on his own account.
Different considerations are likely to apply in the conduct of the balance of the plaintiff's summons. Compare A v A [2015] NSWSC 1778 and cases (including Gibbons v Wright (1954) 91 CLR 423 at 434-438, Murphy v Doman (2003) 58 NSWLR 51 at 58 and Mao v AMP Superannuation Limited [2015] NSWCA 252) there discussed.
Urgency attaches to the hearing of the appeal for three reasons. First, the plaintiff has not submitted to implementation of the Community Treatment Order under appeal, with the consequence that he has not, in a timely manner, received the anti-psychotic medication which the second defendant contends is critical to his well-being. Secondly, during the pendency of the appeal, the second defendant has been unable, effectively, to enforce the Community Treatment Order through the agency of the NSW Police Force. Thirdly, the Community Treatment Order expires on 26 February 2016.
[3]
PROCEDURAL QUESTIONS
The Plaintiff's Reliance upon Notices to Admit. With the consent of the plaintiff and the second defendant, the second defendant's notice of motion was treated as an incident of the hearing of the plaintiff's section 163 appeal.
The crux of the procedural issue relating to the plaintiff's Notices to Admit is that the plaintiff contends that, because the second defendant did not, within the time limited by the UCPR, serve upon him a "Notice Disputing" the "facts" it was called upon to admit, it must be taken to have admitted for the purposes of these proceedings the facts which he called upon it to admit.
In his submissions in support of the appeal the plaintiff contends that, upon the proper construction of his Notices to Admit, the second defendant must be taken to have admitted that he does "not have a mental illness or mental disorder as anyone with proper training knows". The second defendant disputes the validity of the Notices which, nevertheless, I assume to be valid.
In addressing criteria for which the Mental Health Act provides on the hearing of the plaintiff's appeal, I am not bound simply to act upon any "admission" made by the second defendant, by operation of rules of court, arising from a failure to dispute a "fact" in respect of which the plaintiff sought an admission. The Court is entitled, if not bound, to have regard to, and to make findings of fact based upon, evidence as to the true facts: Termijtelen v Van Arkel [1974] 1 NSWLR 525; Damberg v Damberg (2001) 52 NSWLR 492 at 519[153] and 522[160]. Even if material "admissions" have been made by a party, the Court is not obliged (by UCPR rule 17.7 or otherwise) to give a judgment, or make an order, based upon those admissions.
The Court is bound, in the proper administration of justice, to exercise an independent judgement in the exercise of a statutory jurisdiction for which the Mental Health Act provides. There is a public interest element in the making, refusal or appellate review of a Community Treatment Order that cannot, and should not, be displaced by a forensic slip on the part of a party in an untimely response to a Notice to Admit. I proceed to determine the appeal on the evidence, disregarding any "admission" arising from service of the plaintiff's Notices. The evidence of mental illness is compelling. It cannot be disregarded.
The Nature of the Plaintiff's Appeal. The Community Treatment Order affecting the plaintiff is susceptible to an appeal to the Court under either section 67 or section 163 of the Mental Health Act (S v South Eastern Sydney & Illawarra Area Health Service [2010] NSWSC 178 at [22]); but the right of appeal conferred on the plaintiff by section 163 appears to be broader than that for which section 67 provides and, with that in mind, the plaintiff and the second defendant agreed (and I accepted) that the plaintiff's appeal should be treated as an appeal under section 163.
By virtue of section 164 of the Mental Health Act, an appeal to the Court is a hearing de novo (a new hearing) , in which the second defendant accepts that it bears an onus of establishing its case for a Community Treatment Order, and the Court must consider afresh whether such an order should be made, not a re-hearing of the Tribunal's determination in which the plaintiff bears an onus of establishing error in the decision, or decision-making process, of the Tribunal: Z v Mental Health Review Tribunal [2015] NSWCA 373 at [7], [173]-[174] and [181]; S v South Eastern Sydney & Illawarra Area Health Service [2010] NSWSC 178 at [22].
Section 164(5) empowers the Court to hear and decide on appeal with assistance from assessors, should it consider that appropriate. No party invited the Court to sit with assessors. The appeal proceeded before me sitting as a judge alone. I do not consider it necessary, or appropriate, to seek the assistance of assessors. I have the benefit of a substantial amount of evidence, and substantial submissions, bearing upon the questions for determination. I have been invited, moreover, to determine the appeal on an urgent basis.
In order to determine a section 163 appeal, the Court must identify and be satisfied as to each of the statutory pre-conditions to the making of a Community Treatment Order, and must consider the matters required by the Mental Health Act to be considered: Z v Mental Health Review Tribunal [2015] NSWCA 373 at [7].
Statutory Pre-Conditions to the Making of a Community Treatment Order. The matters as to which the first defendant was required to be satisfied before making a Community Treatment Order affecting the plaintiff, and of which the Court must be satisfied on appeal if the order is to be allowed to stand, are, essentially, those set out (with emphasis) in the following provisions of section 53 of the Mental Health Act:
"53 Determination of applications for Community Treatment Orders
(1) The Tribunal is, on an application for a Community Treatment Order, to determine whether the affected person is a person who should be subject to the order.
(2) For that purpose, the Tribunal is to consider the following:
(a) a treatment plan for the affected person proposed by the declared mental health facility that is to implement the proposed order,
(b) if the affected person is subject to an existing Community Treatment Order, a report by the psychiatric case manager of the person as to the efficacy of that order,
(c) a report as to the efficacy of any previous Community Treatment Order for the affected person,
(d) any other information placed before the Tribunal.
(3) The Tribunal may make a Community Treatment Order for an affected person if the Tribunal determines that:
(a) no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person and that the affected person would benefit from the order as the least restrictive alternative consistent with safe and effective care, and
(b) a declared mental health facility has an appropriate treatment plan for the affected person and is capable of implementing it, and
(c) if the affected person has been previously diagnosed as suffering from a mental illness, the affected person has a previous history of refusing to accept appropriate treatment.
(3A) If the affected person has within the last 12 months been a forensic patient or the subject of a Community Treatment Order, the Tribunal is not required to make a determination under subsection (3) (c) but must be satisfied that the person is likely to continue in or to relapse into an active phase of mental illness if the order is not granted.
(4) The Tribunal may not make a Community Treatment Order at a mental health inquiry unless the Tribunal is of the opinion that the person is a mentally ill person.
(5) For the purposes of this section, a person has a
"previous history of refusing to accept appropriate treatment" if the following are satisfied:
(a) the affected person has previously refused to accept appropriate treatment,
(b) when appropriate treatment has been refused, there has been a relapse into an active phase of mental illness,
(c) the relapse has been followed by mental or physical deterioration justifying involuntary admission to a mental health facility (whether or not there has been such an admission),
(d) care and treatment following involuntary admission resulted, or could have resulted, in an amelioration of, or recovery from, the debilitating symptoms of a mental illness or the short-term prevention of deterioration in the mental or physical condition of the affected person.
(6) The Tribunal must not specify a period longer than 12 months as the period for which a Community Treatment Order is in force.
(7) In determining the duration of a Community Treatment Order, the Tribunal must take into account the estimated time required:
(a) to stabilise the condition of the affected person, and
(b) to establish, or re-establish, a therapeutic relationship between the person and the person's psychiatric case manager.
(8) The Tribunal may order that the discharge of an involuntary patient for whom a Community Treatment Order is made be deferred for a period of up to 14 days, if the Tribunal thinks it is in the best interests of the patient to do so."
[4]
THE CHARACTER AND COURSE OF EVIDENCE ADDUCED ON APPEAL
The evidence adduced on the hearing of the appeal, without objection, comprised: a lengthy affidavit sworn by the plaintiff on 18 November 2015; an affidavit by Dr J, a consultant psychiatrist (employed by the second defendant) under whose care the plaintiff has been since September 2014; the Notices to Admit relied upon by the plaintiff; a transcript of the hearing of the first defendant on 26 August 2015 which culminated in the Community Treatment Order under appeal; and supplementary oral evidence given by Dr J.
Dr J was cross examined by the plaintiff.
The plaintiff was not cross examined on his affidavit because, from the bar table, he freely admitted points sought to be made by the second defendant: First, his position is that he does not suffer from any mental illness other than the mental illness he refers to Risperditis. Secondly, he is not willing to take any anti-psychotic medication voluntarily.
The plaintiff described as "fairly correct" my a summary of his case: He says he does not suffer from any mental illness, but he does suffer from the side-effects of medicine forced upon him by the State.
The second defendant contends that the statutory pre-conditions to the making of a Community Treatment Order have been established by evidence adduced on the hearing of the appeal; and that the Court, for the benefit and, in the best interests, of the plaintiff, should make fresh findings in support of the continuing operation of the Community Treatment Order.
Each party relied upon detailed written submissions, supplemented by short oral submissions largely confined to highlighting points more particularly made in the written submissions. Their respective affidavits each annex, or exhibit, a substantial amount of primary documentation charting events going back many years and a continuous relationship extending over several years. The plaintiff and the second defendant are well known to one another.
I accept the evidence of Dr J, his medical expertise, his clinical assessment of the plaintiff and his judgement of what treatment is required for the benefit, and in the interests, of the plaintiff.
In his presentation of his own case on the hearing of the appeal, the plaintiff exhibited quiet confidence in his own judgement; an associated confidence in the correctness of his written material (principally, his affidavit and written submissions but also, implicitly, his summons); and a calm, mild demeanour. In his cross examination of Dr J, having confronted Dr J on the central question (whether or not he suffers from mental illness), he appeared content to accept that he and Dr J simply have to agree to disagree.
The plaintiff lacks insight into his medical condition. Quite apart from the evidence adduced by the second defendant, that is apparent on an objective reading of his own written material.
In his affidavit he describes his occupation as that of a "Treatment Alternatives Advocate and Specialist", and (in paragraph 2) he says of himself:
"[2] I am a litigant in various unresolved court matters to which the defendants have no real defence and to whom significant moneys are alleged to be owed. Through study, research, application & due diligence, I have become an undisputed and recognised authority in certain treatment alternatives and am resultingly the author of… one of the lists of section 68(e) treatment alternatives information… concerning which appropriate information is supposed to be provided to people with a mental illness or mental disorder and am, to date, an undisputed and recognised authority in that area. I am also a supplier of section 68(e) treatment alternatives ordinance to the Department of Mental Health and I am a creditor to that department to whom it is in arrears with the payment of its accounts to me as they are large and I am a small supplier."
The plaintiff's grandiose view of himself is an example of him speaking through an illness characterised by a lack of personal insight.
[5]
PROVISIONS OF THE MENTAL HEALTH ACT TO WHICH THE PLAINTIFF REFERS
The plaintiff's reference to section 68(e) is a reference to section 68 of the Mental Health Act, which (with emphasis added) is in the following terms:
"68 Principles for care and treatment
It is the intention of Parliament that the following principles are, as far as practicable, to be given effect to with respect to the care and treatment of people with a mental illness or mental disorder:
(a) people with a mental illness or mental disorder should receive the best possible care and treatment in the least restrictive environment enabling the care and treatment to be effectively given,
(b) people with a mental illness or mental disorder should be provided with timely and high quality treatment and care in accordance with professionally accepted standards,
(c) the provision of care and treatment should be designed to assist people with a mental illness or mental disorder, wherever possible, to live, work and participate in the community,
(d) the prescription of medicine to a person with a mental illness or mental disorder should meet the health needs of the person and should be given only for therapeutic or diagnostic needs and not as a punishment or for the convenience of others,
(e) people with a mental illness or mental disorder should be provided with appropriate information about treatment, treatment alternatives and the effects of treatment and be supported to pursue their own recovery,
(f) any restriction on the liberty of patients and other people with a mental illness or mental disorder and any interference with their rights, dignity and self-respect is to be kept to the minimum necessary in the circumstances,
(g) any special needs of people with a mental illness or mental disorder should be recognised, including needs related to age, gender, religion, culture, language, disability or sexuality,
(g1) people under the age of 18 years with a mental illness or mental disorder should receive developmentally appropriate services,
(g2) the cultural and spiritual beliefs and practices of people with a mental illness or mental disorder who are Aboriginal persons or Torres Strait Islanders should be recognised,
(h) every effort that is reasonably practicable should be made to involve persons with a mental illness or mental disorder in the development of treatment plans and recovery plans and to consider their views and expressed wishes in that development,
(h1) every effort that is reasonably practicable should be made to obtain the consent of people with a mental illness or mental disorder when developing treatment plans and recovery plans for their care, to monitor their capacity to consent and to support people who lack that capacity to understand treatment plans and recovery plans,
(i) people with a mental illness or mental disorder should be informed of their legal rights and other entitlements under this Act and all reasonable efforts should be made to ensure the information is given in the language, mode of communication or terms that they are most likely to understand,
(j) the role of carers for people with a mental illness or mental disorder and their rights under this Act to be kept informed, to be involved and to have information provided by them considered, should be given effect."
Section 68(e) is a provision of the Mental Health Act commonly referred to by the plaintiff in his written materials, including correspondence with the second defendant and others.
Other provisions of the Act to which he particularly refers in his materials include sections 85 and 195, the latter of which also refers to sections 3 and 105. On 2 November 2015 he wrote to the NSW Government complaining of the "paralysing effect" of section 195 on his work of promoting "a pluralistic, holistic approach to mental health" and compelling compliance with the protective objects of the Mental Health Act.
Sections 3, 68 and 105 confirm (subject to section 195) the purposive, protective character of the legislation. Sections 3, 105 and 195 are in the following terms:
"3 Objects of Act
The objects of this Act are:
(a) to provide for the care and treatment of, and to promote the recovery of, persons who are mentally ill or mentally disordered, and
(b) to facilitate the care and treatment of those persons through community care facilities, and
(c) to facilitate the provision of hospital care for those persons on a voluntary basis where appropriate and, in a limited number of situations, on an involuntary basis, and
(d) while protecting the civil rights of those persons, to give an opportunity for those persons to have access to appropriate care and, where necessary, to provide for treatment for their own protection or the protection of others, and
(e) to facilitate the involvement of those persons, and persons caring for them, in decisions involving appropriate care and treatment.
…
105 Objectives of New South Wales public health system
The objectives of the New South Wales public health system under this Act in relation to mental health services are to establish, develop, promote, assist and encourage mental health services that:
(a) ensure that provision is made for the care, treatment, control and rehabilitation of persons who are mentally ill or mentally disordered, and
(b) promote the establishment of community mental health services for the purpose of enabling the treatment in the community wherever possible of persons who are mentally ill or suffering from the effects of mental illness or who are mentally disordered, and
(c) develop, as far as practicable, standards and conditions of care and treatment for persons who are mentally ill or mentally disordered that are in all possible respects at least as beneficial as those provided for persons suffering from other forms of illness, and
(d) take into account the various religious, cultural and language needs of those persons, and
(e) are comprehensive and accessible, and
(f) permit appropriate intervention at an early stage of mental illness, and
(g) assist patients to live in the community through the provision of direct support and provide for liaison with carers and providers of community services.
…
195 Role of objects provisions
The provisions of sections 3, 68 and 105 are intended to give guidance in the administration of this Act and do not create, or confer on any person, any right or entitlement enforceable at law."
The plaintiff's objection to the compulsory administration of anti-psychotic medication finds a more concrete reflection in his citation of section 85. It is in the following terms:
"85 Administration of excessive or inappropriate drugs
A medical practitioner must not, in relation to any mental illness or mental condition or suspected mental illness or mental condition, administer, or cause to be administered to a person a drug or drugs in a dosage that, having regard to professional standards, is excessive or inappropriate."
This collection of legislative provisions is interwoven in the plaintiff's protests against characterisation of him as "mentally ill" and the forced administration of anti-psychotic medication. He correctly perceives the purposive, protective character of the Mental Health Act (operating in tandem with the Court's inherent, protective jurisdiction described in Marion's Case (1992) 175 CLR 218 at 258-260), but he cannot see how a need for a community treatment order could possibly apply to him.
In elaboration of the case, reference needs also to be made to the definition of "mental illness" in section 4(1) and the provisions of sections 14, 15 and 16 of the Mental Health Act:
"4 Definitions
(1) In this Act …
'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 one or more 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 any one or more of the symptoms referred to in paragraphs (a)-(d).
…
14 Mentally ill persons
(1) A person is a mentally ill person if the person is suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary:
(a) for the person's own protection from serious harm, or
(b) for the protection of others from serious harm.
(2) In considering whether a person is a mentally ill person, the continuing condition of the person, including any likely deterioration in the person's condition and the likely effects of any such deterioration, are to be taken into account.
15 Mentally disordered persons
A person (whether or not the person is suffering from mental illness) is a mentally disordered person if the person's behaviour for the time being is so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control of the person is necessary:
(a) for the person's own protection from serious physical harm, or
(b) for the protection of others from serious physical harm.
16 Certain words or conduct may not indicate mental illness or disorder
(1) A person is not a mentally ill person or a mentally disordered person merely because of any one or more of the following:
(a) the person expresses or refuses or fails to express or has expressed or refused or failed to express a particular political opinion or belief,
(b) the person expresses or refuses or fails to express or has expressed or refused or failed to express a particular religious opinion or belief,
(c) the person expresses or refuses or fails to express or has expressed or refused or failed to express a particular philosophy,
(d) the person expresses or refuses or fails to express or has expressed or refused or failed to express a particular sexual preference or sexual orientation,
(e) the person engages in or refuses or fails to engage in, or has engaged in or refused or failed to engage in, a particular political activity,
(f) the person engages in or refuses or fails to engage in, or has engaged in or refused or failed to engage in, a particular religious activity,
(g) the person engages in or has engaged in a particular sexual activity or sexual promiscuity,
(h) the person engages in or has engaged in immoral conduct,
(i) the person engages in or has engaged in illegal conduct,
(j) the person has an intellectual disability or developmental disability,
(k) the person takes or has taken alcohol or any other drug,
(l) the person engages in or has engaged in anti-social behaviour,
(m) the person has a particular economic or social status or is a member of a particular cultural or racial group.
(2) Nothing in this Part prevents, in relation to a person who takes or has taken alcohol or any other drug, the serious or permanent physiological, biochemical or psychological effects of drug taking from being regarded as an indication that a person is suffering from mental illness or other condition of disability of mind."
Express reference to these provisions is necessary because:
1. in answer to a question from the plaintiff in the course of cross examination, Dr J said that, in his opinion, the plaintiff's symptoms have included "delusions" and "a severe disturbance of mood" within the meaning of the statutory definition of "mental illness";
2. the focus for attention in these proceedings is on "mental illness" rather than on "mental disorder", and upon whether the plaintiff suffers from "mental illness", not whether he is a "mentally ill person"; and
3. without express reference to section 16, the plaintiff protests that some of the conduct relied upon for characterisation of him as "mentally ill" (in particular, two appearances in public without clothes, at a supermarket in 2008 and outside his residence in 2010) is nothing more than conduct appropriate to his philosophical commitment to nudism and, as such, is no evidence of mental illness.
On my reading of the evidence, the plaintiff's commitment to nudism is, in and of itself, of no moment. The substantive point made in clinical notes relating to the plaintiff (which, independently, I make) is that his public appearances as a nudist in 2008 and 2010 are evidence of a loss of inhibition in social relationships, a factor that may bear upon how others react to him. A failure on his part to appreciate this is part of a larger problem, a lack of insight, that continues to plague him.
[6]
THE PLAINTIFF'S STORY
The plaintiff was born in 1953 and is presently aged 62 years.
In his affidavit account of his life, he appears to suggest that he has been engaged with mental health professionals, on and off, since about the age of eight years, but has never been in need of mental health treatment.
He says that he suffered a personal injury in 1963, as a consequence of which he became engaged in court proceedings which first introduced him to legal processes, from which he is now no stranger.
He also says that, having qualified as a primary school teacher in 1974, he taught consecutively in two public schools until 1979, since which time he claims to have lived in semi-retirement. In about 1978, with the assistance of an unnamed lady, he started a restaurant and dining club for "singles", a venture with which he still works on a weekly basis. He speaks, also, of other business ventures including, relevantly, a business of promoting "subliminal medication CDs" and "many other neglected [mental health] treatment alternatives".
He says that, in 1997, "I found my way into staying at the Cummins Unit at Royal North Shore [Hospital] to which an informative caller on the phone had directed me, should I need a break from my legal matters, advising that one could stay in Mental Health facilities for free in times of stress".
I infer, from the affidavit, that about that time he was diagnosed as suffering from a mental illness, leading (he suggests) to his capture by a health system which (he contends) has held him in its grip by the administration of anti-psychotic medication.
By reference to clinical records, Dr J records that the plaintiff has been subject to Community Treatment Orders under the Mental Health Act since at least 2008. This is consistent with the plaintiff's own evidence.
Clinical records suggest that the plaintiff suffered his first psychotic episode in 1997 at Royal North Shore Hospital (where, it must be recorded, he is said to have suffered a serious overdose of anti-psychotic medicines that required corrective treatment). In 2001-2002 he was admitted to Rozelle Hospital, and treated with ECT, on two separate occasions. He was psychiatrically stable, on oral Risperidone, between 2002-2008. He was admitted to hospital for treatment, relapses associated with non-compliance with treatment regimes, in 2008, 2010, 2013 and 2014. Depot injections appear to have been introduced as part of his routine treatment in 2014.
Between late August and early September 2014 he was treated as an inpatient in the mental health facility at Concord Repatriation General Hospital. The discharge summary relating to that period records the following "Summary of Care" (with editorial revision designed to preserve the plaintiff's anonymity):
"[The plaintiff] is a 61-year-old man who has a diagnosis of schizoaffective disorder and lives alone in Department of Housing (DoH) accommodation. He has essentially been non-compliant with his depot paliperidonee all year, except for when breached and brought in to hospital to have them. [He] has never been able to accept his diagnosis despite concurrence between many experienced psychiatrists. When well he is functional: he runs… a singles dining club offering weekly events. He is also the Australasian distributor of sublimation therapy CDs for use as an alternative method of treating mental illness to medication. He finds these very helpful for his own mental health. CDs in themselves are not a problem; however, his method of selling is to deliver the CDs (whether or not there has been an order placed) and then send a bill for the cost. He is busy trying to claim monies he feels he is owed by the Health Department for CDs he has dropped off at [Concord Hospital and the community health centre at which he has been treated]. He has been so persistent and convincing that he was almost paid in the region of $12,000 for them. Staff reportedly found him difficult at [the community health centre] as he brings CDs to the recovery groups and tries to sell them.
When [the plaintiff] came in [to Concord Hospital] he was grandiose, thought-disordered, pressured and extremely irritable. He is markedly improved since receiving both loading doses of paliperidone depots and was able to speak sensibly at the psychiatrist meeting. We are hopeful that medication will continue to help him stay well and out in the community.
It seems that presentations earlier on were more of a paranoid nature as his earlier diagnosis was paranoid schizophrenia. However, depressive episodes emerged, as did times of mania. There are numerous grandiose and thought-disordered letters he has written in his old file; some of which are signed off as 'King [X]' or 'Founder: Sex Love Network' and 'Founder: Orgasmianity'.
[The plaintiff] has responded well and quickly once recommenced on anti-psychotic medication. At his worst, he has gone in to the local supermarket or park without any clothes on: he has also tried to enter someone else's property using an unsuspecting locksmith. We hope that he continues to take the medication as he has a number of positive things going on in his life and we feel that his reputation would be very seriously at risk should he become unwell again."
Following his release from Concord Hospital, on 25 February 2015 the first defendant made a Community Treatment Order (substantially similar to the one presently under appeal) expiring on 24 August 2015.
On 8 August 2015 he was served with an application to the first defendant for a fresh Community Treatment Order, based upon a Treatment Plan dated 7 August 2015 that proposed that he continue treatment with anti-psychotic depot injections and case management meetings every two weeks (with a review at least every three months) under the supervision of Dr J.
He attended the first defendant's hearing of that application on 26 August 2015, and made written and oral submissions consistent with those made to the Court in the course of the present appeal. His psychiatric case manager (a registered nurse) is recorded in the transcript as having reported to the first defendant in the following terms (with editorial revision in the interests of anonymity):
"[The plaintiff] has a long-standing diagnosis of schizophrenia. Over the years his mental state has declined for different reasons but a significant number of times due to poor adherence to medication. Over the last few years [he] has been on Community Treatment Orders and injectable medication because of that. [Under the] most recent Community Treatment Order [made on 25 February 2015 he] had his injection regularly every two weeks until his last injection when he decided his Community Treatment Order was invalid and he wouldn't accept the medication. So he was breached and taken to Concord Hospital. He's also said he wouldn't take medication without the order and we believe that without medication [his] mental state would decline which would result in him going into hospital. We've avoided that. There's been no hospital admission in the last six months [during the currency of the February 2015 Community Treatment Order] and he's attended his appointments to see his psychiatrist and he's had blood tests and other tests related to his medication."
In the evidence he gave on the hearing of the current appeal, Dr J confirmed that, in his opinion: (a) the plaintiff has a schizoactive disorder, which is a recurring and remitting major mental illness with, in his instance, a high level of interepisodic functioning; and (b) anti-psychotic medication is an important element of a relapse prevention strategy for management of the plaintiff's health.
In Dr J's opinion, given the nature of the plaintiff's illness and his refusal to take medication voluntarily, a periodic depot injection is critical. He opined, correctly, that it is highly unlikely that the plaintiff will take oral anti-psychotic medication voluntarily, or present voluntarily for depot injections.
Dr J's affidavit includes the following passages (with editorial revision to preserve anonymity):
"Least restrictive care
[22] In my opinion, the CTO ['the Community Treatment Order presently under appeal] is necessary and no other care of a less restrictive kind consistent with safe and effective care is appropriate and reasonably available to [the plaintiff]. It is also my opinion that [the plaintiff] would benefit from the CTO as the least restrictive alternative consistent with safe and effective care. …
[28] In my opinion, a period of six months was the necessary length of the CTO for [the plaintiff]. A period of six months is in my opinion the minimum time period necessary to maintain the stability of a person such as [the plaintiff] who has been treated with medication for a mental illness over a long period. A period of six months is in my opinion also the minimum time period necessary for a patient to develop a relationship and rapport with the [suburban health clinic] that is administering the CTO. If the patient develops such a relationship, the patient is more likely to be willing to engage with the [health service] team and develop insight into [his] illness as [his] condition improves and to take [his] medication voluntarily without a CTO in the future.
Appropriate treatment plan
[29] In my view, the treatment plan put forward to [the first defendant] on 26 August 2015 was appropriate and is still appropriate.
[30] First, in my opinion an intramuscular injection of anti-psychotic medication is the appropriate medication for [the plaintiff] going forward (which could be Risperidone or another anti-psychotic such as Paliperidone) but the key factor is that it must be an intramuscular injection because of the high likelihood of [the plaintiff's] non-compliance with oral medication.
[31] Secondly, regular reviews by the [community health centre] staff and by a psychiatrist at the [health centre] are important to encourage engagement and rapport. These reviews are also necessary to monitor his progress, so that his treatment can be changed if necessary. These reviews are also necessary to identify whether there are any side-effects of the medication.
[32] Thirdly, [the community health centre] is capable of implementing the treatment plan. [The health centre] is an established mental health facility of long standing in the community. [It] has had a relationship with [the plaintiff] since at least 2005 and has been administering CTOs in relation to [him] since 2008. Also, [he] lives… in the catchment area of [the health centre].
Relapse into an active phase of mental illness
[33] [The plaintiff] has a relapsing chronic condition as evidenced by documented relapses requiring hospital presentation since 1997.
[34] In my opinion, the risk that [the plaintiff] will relapse into an active or acute phase of his schizo-affective disorder is increased significantly if he does not receive anti-psychotic medication. The risk of relapse is heightened where a person has had a number of previous episodes of a mental illness. [The plaintiff] has had a number of previous episodes of psycho-affective disorder and accordingly his risk of relapse into an active phase of schizo-affective disorder is very high if he does not receive appropriate anti-psychotic medication.
[35] If [the plaintiff] is not treated with anti-psychotic medication, I would expect him to relapse into an active phase of his psycho-affective disorder within two months and that the relapse would involve the following:
a) the development of an abnormality of mood, most likely to be mood elevation;
b) the development of more prominent and intense psychotic beliefs or delusions;
c) behaving in a disinhibited and inappropriate manner on the basis of his disturbance of mood and psychotic beliefs.
[36] If such a relapse occurred it would put [the plaintiff] at [risk of harm to his reputation, at risk or harm to himself and others, at risk of retribution from others because of the provocative and disinhibited manner in which he behaves secondary to psychotic beliefs when he is unwell, and at risk of requiring a mental health inpatient admission].
[37] Also, because of [the plaintiff's] non-compliance with the CTO …, he is at a greater risk of relapse then he would otherwise be."
During the course of his cross examination, Dr J confirmed that, in the ordinary course of the plaintiff's treatment, the second defendant had offered, and discussed with, him alternative treatments, including participation in life skills groups and assistance in procuring employment.
[7]
CONCLUSION
I accept this evidence and the correctness of the opinions expressed by Dr J. They are consistent with my reading of the primary documentary materials before the Court, and an objective assessment of the plaintiff's own evidence.
Stated in terms responsive to the plaintiff's own statement of the central question for determination by the Court, I am persuaded by the evidence to find that he has lost his "civil bet": I find, as a fact, that he does suffer from mental illness, and (in terms of section 53(1) of the Mental Health Act) he is a person who should be subject to the Community Treatment Order under appeal.
By further reference to section 53 of the Mental Health Act, I make the following determinations (substantially for the reasons enunciated by Dr J):
1. no other care of a kind less restrictive than depot injections of anti-psychotic medication, that is consistent with safe and effective care, is appropriate and reasonably available to the plaintiff: section 53(3)(a).
2. the plaintiff would benefit from the Community Treatment Order, presently under appeal, as the least restrictive alternative consistent with safe and effective care: section 53(3)(a).
3. a declared mental health facility (being the community health centre at which he has received treatment over several years to date) has an appropriate treatment plan for him and is capable of implementing it: section 53(3)(b).
4. I am satisfied that the plaintiff is likely to continue in or to relapse into an active phase of mental illness if the Community Treatment Order under present challenge is not confirmed: section 53(3)(3A).
5. the Community Treatment Order, thus confirmed on appeal should expire at the time appointed by the first defendant on 26 August 2015 (namely, 25 February 2016): sections 53(7) and 56(2).
The second defendant, correctly, disclaims need of a formal finding under section 53(4) that the plaintiff is a mentally ill person. The Community Treatment Order under appeal was not sought, or made, at a "mental health inquiry": cf, section 51(5). It is not a condition precedent to the making of a Community Treatment Order in this case that the plaintiff be found to be a mentally ill person. Cf, Harry v Mental Health Review Tribunal and Anor (1994) 33 NSWLR 315.
In cross examination, Dr J accepted that some people have side effects to Risperidone and that the second defendant is obliged to provide treatment alternatives for the plaintiff. It is in that context, and not in disregard of it, that he expressed his opinion (which I adopt) that the treatment plan prepared for the plaintiff is the least restrictive kind of care, consistent with safe and effective care, that is appropriate, reasonably available and beneficial to the plaintiff.
In my assessment of the evidence, significantly including that of the plaintiff himself, I am, in my opinion, compelled to find that he suffers from a mental illness (a schizoaffective disorder), not a product of any anti-psychotic medication, but one which, despite any side-effects attending its administration, alleviates the destructive effects of his illness.
In deciding, as I do, that the plaintiff is a person who should be the subject of the Community Treatment Order under appeal, I am mindful of the intrusive effect of such an order on his civil liberties. It is because of that effect that parliament has laid down conditions for the making of a community treatment order: Z v Mental Health Review Tribunal [2015] NSWCA 373 at [35].
The common law has an entrenched concern for the protection of civil liberties in the provision of medical treatment. The norm is that a prerequisite for the medical treatment of an individual is a need for the individual's consent to that treatment: Rogers v Whitaker (1992) 175 CLR 479 at 498. Forced medical treatment is exceptional; but, subject to procedural safeguards, permissible when justified by necessities recognised by the law: Harry v Mental Health Review Tribunal (1994) 33 NSWLR 315 at 322D-323B, 332G-333F and 334B-335D; Z v Mental Health Review Tribunal [2015] NSWCA 373 at [35]; A (by his Tutor Brett Collins) v Mental Health Review Tribunal (No. 4) [2014] NSWSC 31 at [124]-[125]. Each case must be decided on its own facts and by reference to the governing law (in this case, the Mental Health Act, particularly sections 51, 53, 163 and 164).
Although the plaintiff has a strong conviction that the administration of anti-psychotic medication is, at best, a placebo and, at worst, itself a cause of mental illness, the evidence before the Court demonstrates that he has need of such medication; administered in a regular way, it works beneficially upon his health and, absent regular administration of it, his health is adversely affected.
It is in these circumstances, and finding that the plaintiff suffers from a mental illness that impairs his judgement, I conclude that he is a person in respect of whom the Community Treatment Order under appeal should be made.
By all reports, those treating the plaintiff, and making decisions affecting his welfare, can see in him a goodness which all hope to nurture. I encourage him to accept this, and the aid offered to him by his doctors and nurses, without thinking combatively in terms of a wager, a "civil bet".
Those in whose care he is, mindful of the protective character of the work to be done, are decidedly not engaged in a contest against him but are, rather, standing in his corner. Standing with him, urging him on in a common fight for him to be as well as he can be, in the larger contest of life in which we are all, without exception, engaged.
Let there be no "winners and losers" on a "civil bet" but only an ongoing, common search for constructive solutions to life's ever-present, personal challenges. A major challenge for everybody, never easy for anybody despite outward appearances to the contrary, is to be the best that we can be. The plaintiff plainly has much to offer for the benefit of himself and others. He needs, however, to accept that, independently of the effects of medication from time to time prescribed for him, he does have a mental illness that impairs his judgement, and requires professional medical treatment.
[8]
ORDER
The fresh, substantive determinations required of the Court under the Mental Health Act having been made, the appropriate form of order for disposition of the appeal is simply an order that the appeal be dismissed.
[9]
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: 15 December 2015