CITATION: MM (Guardianship) [2008] VCAT 1282

ORDER SUMMARY: The Tribunal makes a supervised treatment order and varies the treatment plan by providing a review date of 31 July 2008. The order shall continue in force until 31 July 2008. The Authorised Program Officer shall immediately seek the approval of the Senior Practitioner of the treatment plan as varied and notify the Tribunal of the outcome.

PJ, unreported, VCAT proceeding number G13209, 28 February 2008

R v. Hallstrom; ex parte W [1986] 2 WLR 883

AB [1988] VMHRB 1, 8 April 1988

R v. Bournewood Community and Mental Health NHS Trust, ex part L [1997] EWCA Civ 2879; [1998] 1 All ER 634

MM is a 35 year old man who has a mild intellectual disability. He has also been diagnosed with clinical depression and has a history of alcohol dependency.

Since August 2005 MM has been a resident of a facility deemed to be a "short-term residential treatment facility" under the Disability Act 2006 section 151(6). This is the IRTP (Intensive Residential Treatment Program) of SFS (Statewide Forensic Service). He was admitted under a parole order.

MM has a history of sexual assault of male children. He has a number of convictions from 2002-2004 including indecent assault and abduction. In some instances the victims were reported to have required medical attention. Although MM is regarded as having made good progress in the program it is recorded in his treatment plan that he continues to experience difficulties disclosing thoughts, feelings and behaviours. He has been assessed as posing a high risk of future sexual violence towards male children and adolescents should he access the community without supervision or withdraw from supports and services provided to him by Disability Services, the Department of Human Services.

At about the time of the commencement of the relevant parts of the Disability Act, on 1 July 2007, the Tribunal received an application for a supervised treatment order under section 193 and an interim order under section 192. A supervised treatment order enables the detention of a person with an intellectual disability who poses a significant risk of serious harm to another person: section 183.

The treatment plan that accompanied the application is several pages in length and quite detailed. It has a number of appendices including policy standards and guidelines. It shows that the IRTP generally involves 24-hour staff support and supervision of residents. Treatment includes regular individual and group sessions aimed at developing relapse prevention. In MM's case, this means that offence-specific issues are addressed but so are issues concerning substance abuse, depression and his sexuality, for only recently has MM identified himself as homosexual. There is ongoing psychiatric assessment and training for future employment and the development of living skills. There is also supervised community access.

There are restrictions. The facility is generally locked day and night but the degree of restriction actually depends on the stage of the program, stage 1 being the most restrictive, and stage 4 being the least. There are restrictions on television viewing, telephone calls, computer use, and visits. Residents' rooms can be searched.

The benefits to MM are said in the treatment plan to include addressing his substance abuse and depression, so as to reduce "maladaptive coping mechanisms", and assisting him to develop a positive sexual identity and appropriate social skills. Educational programs would improve his opportunities for employment, and participation in daily household chores and routines could improve his living skills and help future reintegration into the community.

On 1 July 2007 I made an interim supervised treatment order on the basis of the material accompanying the application. This included a clinician's assessment that he was a high risk of re-offending. Intoxication and mood instability were said to be factors that would exacerbate the risk. This was in contrast to a psychologist's assessment in 2003 that he was a low risk of re-offending.

The Public Advocate was joined as a party in July 2007. A hearing that month was adjourned to enable the Public Advocate to complete an investigation and provide a report to the Tribunal.

On 12 November 2007 I conducted a hearing that was attended by MM and his father. Mr. Walkinshaw, of OPA (the Office of the Public Advocate) and a number of officers at SFS were also present. MM and his father told me then that they wanted MM to remain in the IRTP. By this time MM had progressed to stage 3 of the program. There was a question, however, whether MM had capacity to "consent to voluntarily complying with a treatment plan" this is required by section 191(6)(d) of the Act before an order could be made. I therefore adjourned the hearing so that an independent assessment of MM's capacity could be obtained. That assessment was conducted by Ms. Catherine Leigh-Smith, psychologist, whose report was dated 1 March 2008.

The Public Advocate provided a report dated 14 April 2008, the day on which the hearing resumed. The report contained submissions referred to below. Attached were documents including a report by Senior Psychologist, S. Niblock and Clinician, R. Charles, dated 18 January 2008. It was stated there that the level of restrictive interventions for MM had reduced in the preceding months. However, it was also asserted that MM continued to present a high level of risk if he were to reside in the community unsupervised and unsupported.

The persons recorded at the beginning of these reasons attended the hearing. They included MM, both his parents, Mr. Walkinshaw and Mr. Townsend, solicitor, representing MM. At the beginning of the hearing, Mr. Townsend requested written reasons for decision. I reserved my decision and now provide the decision and reasons.

1. Section 193 of the Disability Act provides that the Tribunal may make a supervised treatment order if satisfied that the matters specified in section 191(1) apply in respect of the person who is the subject of the application. They include that the application be made in respect of a person who has an intellectual disability; who is receiving residential services; and in respect of whom there is a treatment plan approved by the Senior Practitioner. The terms "intellectual disability", "residential service" and "treatment plan" are defined in section 3(1). There was no controversy about those matters, and, as section 191(3) requires, there was a certificate by the Senior Practitioner about them. I am satisfied about those matters. There are then criteria specified in section 191(6) that must be met.

The section 191(6) criteria

1. Sub-section (6) of section 191 provides -

"(6) VCAT can only make a supervised treatment order if VCAT is satisfied

(a) the person has previously exhibited a pattern of violent or dangerous behaviour causing serious harm to another person or exposing another person to a significant risk of serious harm;

(b) there is a significant risk of serious harm to another person which cannot be substantially reduced by using less restrictive means;

(c) the services to be provided to the person in accordance with the treatment plan will be of benefit to the person and substantially reduce the significant risk of serious harm to another person;

(d) the person is unable or unwilling to consent to voluntarily complying with a treatment plan to substantially reduce the significant risk of serious harm to another person;

(e) it is necessary to detain the person to ensure compliance with the treatment plan and prevent a significant risk of serious harm to another person."

1. It is convenient to consider the evidence and submissions in relation to each paragraph but first I mention some important general provisions in the Act.

General purpose, objectives and principles of the Disability Act

1. Section 1 provides that the purpose of the Act is to enact a new legislative scheme for persons with a disability which reaffirms and strengthens their rights and responsibilities. Section 4 sets out the objectives of the Act, including to advance the inclusion and participation in the community of persons with a disability and promote and to protect the rights of persons accessing disability services.

2. Section 5(1) provides that persons with a disability have the same rights and responsibilities as other members of the community and should be empowered to exercise those rights and responsibilities. In particular, section 5(2) provides that persons with a disability have the same right as other members of the community to respect for their human worth and dignity as individuals and exercise control over their own lives. Section 5(4) provides that if a restriction on the rights or opportunities of a person with a disability is necessary, the option chosen should be the option which is the least restrictive of the person as is possible in the circumstances.

3. In Part 8 (Compulsory Treatment) Division 5 (Supervised Treatment Orders) section 183 provides that the purpose of the Division is to provide for the making of a civil order, a supervised treatment order, to enable the detention of a person with an intellectual disability who poses a significant risk of serious harm to others.

4. In the relevant Second reading speech the Minister for Community Services said this -

"The bill provides for a new civil order - a supervised treatment order, which can be made where a person resides in a restrictive environment because they pose a significant risk of serious harm to others.

The bill outlines a range of provisions in relation to supervised treatment, which are aimed at protecting the rights of people subject to this treatment ...

These provisions provide clear regulation and transparency around situations which are currently occurring without adequate external scrutiny. The bill will ensure that the rights of people subject to this form of treatment are adequately protected." (Hansard, Legislative Assembly, 1 March 2006, p 419).

1. I mention also that the Interpretation of Legislation Act 1984 section 35 requires that an interpretation of the Disability Act that would promote the purpose or object underlying the Act shall be preferred to a construction that would not promote that purpose or object.

2. I note here too that some submissions were made about the Charter of Human Rights and Responsibilities Act 2006. I return to those below.

Evidence submissions and findings in relation to the section 191(6) criteria

Has MM previously exhibited a pattern of violent or dangerous behaviour causing serious harm to another person or exposing another person to a significant risk of serious harm?

1. The words in section 191(6)(a), especially "pattern", "serious" and "significant", are obviously important. In this case there was no controversy about MM's history of offending, or that it represented a pattern of violent behaviour causing serious harm to others.

Is there is a significant risk of serious harm to another person which cannot be substantially reduced by using less restrictive means?

Ms. Bennett, who is a clinical and forensic psychologist, described MM as having a high baseline risk. He was a long-term risk. Even in stage 4 of the IRTP, the least restrictive stage, he would still need a considerable degree of support. His successful reintegration into the community depended on completion of the final stages of the program where often a significant degree of adjustment was required. In MM's case, adjusting mean going into community "sober" and with "changed sexuality". Support was a crucial factor in that process. Later in the hearing Ms. Bennett pointed out that if there were any concerns about MM's behaviour while in stage 4 he could be readmitted to a stage having greater restrictions.

MM's father told me that he had observed positive changes in MM's behaviour because he was abstaining from alcohol and because of the support given to him. If MM was not given that support he would slip backwards. MM's mother agreed.

On the other hand, Mr. Walkinshaw submitted that this criterion was not met because MM wanted to remain voluntarily until he had experienced the benefits of stage 4 of the program and arrangements had been made for his transition to community living. This was less restrictive than an order being made.

I will consider MM's capacity to consent to remaining on the program later, but Mr. Townsend submitted that even if MM lacked capacity to consent, given his partial insight, the support of his family and what he had learned in recent years, the risk of harm to others could be substantially reduced by employing less restrictive means than an order.

The words "significant", "serious" and "substantially" in section 191(6)(b) are also obviously important. I accept the evidence that indicates that there remains a significant risk of serious harm to other persons. There do not appear to be any reasonably available means of substantially reducing that risk without restrictions of the kind that the IRTP involves, essentially because the treatment has not been completed. The restrictions have reduced over time and it is likely that they will continue to reduce, but in my view their complete removal now would mean that the risk would at least remain significant.

Will the services to be provided MM in accordance with the treatment plan be of benefit to him and substantially reduce the significant risk of serious harm to another person?

1. It was generally acknowledged that MM had benefited from the program and made good progress. As he has benefited and made progress the risk of serious harm to others has been reduced. The expert and lay evidence, which I accept, points to this continuing if MM remains on the program.

Is MM unable or unwilling to consent to voluntarily complying with a treatment

plan to substantially reduce the significant risk of serious harm to another person?

For this criterion to be satisfied, it is enough either that MM be unable to consent or that he be unwilling to consent. For reasons that follow, I find that although he may be regarded as willing to consent he is unable to consent.

The information on which Ms. Leigh-Smith's report was based included interviews with MM and Ms. Bennett and other officers at SFS. Ms. Leigh-Smith also read the treatment plan and other material on the SFS file.

For the purposes of her report Ms. Leigh-Smith defined "competency to consent" as the ability to understand the information and options presented, the ability to evaluate the information to determine the implications of an option and the capacity to communicate a decision. She stated further that to demonstrate "decisional capacity" a person should have the capacity to understand in simple language what the proposed treatment is, its purpose and nature and why it is being proposed. It also involves having the capacity to understand the main benefits, risks and possible alternatives, and the consequences of not receiving the proposed treatment. It requires the individual to be able to retain the information for a sufficient period of time in order to consider it and arrive at a decision, and then be able to communicate the decision.

The report noted that when asked to describe his current treatment plan, MM was able to describe the more obvious components such as individual therapy sessions, participation in group therapy and vocational programs and supervised community access. He explained in a "simplistic manner" the rationale behind each of the components of treatment. He demonstrated a reasonable understanding of the expected benefits to him of participating in each component of treatment. He identified generally the restrictive interventions that are part of the treatment plan. He did not identify the specific components, but when they were presented to him he explained the rationale behind them and said he was aware of them.

Ms. Leigh-Smith expressed the opinion that MM was "unable but willing" to consent to voluntarily complying with a treatment plan to substantially reduce the significant risk of serious harm to another person. He appeared to be able to understand "at an intellectual level" the nature, purpose, benefits and risks of treatment, possible alternatives and the consequences of not receiving treatment. He appeared able to retain information in order to consider it and arrive at a decision. However, given MM's "limited emotional insight", Ms. Leigh-Smith questioned when considering the restrictive aspects of the treatment plan whether MM was able to integrate and analyse the emotional costs and consequences of participating in treatment. It was on this basis that Ms. Leigh-Smith was of the opinion that MM appeared unable to make "a fully informed decision" about his treatment plan.

No issue was taken with the way that Ms. Leigh-Smith approached the question of competency but there was some dispute about her conclusion.

Ms. Bennett told me that sometimes MM had a superficial understanding of what he was agreeing to. He was motivated not to return to jail. He had "good" days and "bad" days. She said that during the "change process" what was first required was a superficial intellectual understanding but then also a comprehensive understanding - demonstrating an ability to integrate emotion into that, to connect emotion to that. In Ms. Bennett's opinion MM was unable to give voluntary consent due to his intellectual disability. This did not detract from the fact that he was compliant and motivated. There were complexities, especially restrictive elements and the liberties given up. This included the possibility that, if there was a concern with his behaviour, MM could return to Stage 3 or even Stage 1. Stage 4 was still part of IRTP.

Mr. Charles expressed the opinion that MM was compliant with the treatment plan but he did not fully understand what he could consent to. He was very motivated not to reoffend.

Mr. Townsend submitted that MM "gets over the line" and has capacity to consent. He submitted that section 191(6)(d) did not require capacity to consent to each element of the treatment plan. It required only that there be consent to the broad nature and effects of treatment. He cited AB [1988] VHMRB 1 at pp 12-15. In that case the Mental Health Review Board considered the expression "unable to voluntarily consent to necessary treatment" in the Mental Health Act 1986. The Board referred to common law authority that expressed the matter this way:

"... What must the patient understand in order to be competent? It is generally thought that an understanding of the broad nature and effects of an act is sufficient to establish competency to consent to that act" (R v. Hallstrom; ex parte W [1986] 2 WLR 883 at 893, cited at p 14 of AB).

The Board decided that a person was competent to admit himself or herself to a psychiatric inpatient service for treatment as a voluntary patient if he or she understands the "broad nature and effects" of the treatment which will be given.

I note that in separate legislation, the Guardianship and Administration Act 1986 section 36, a "person is incapable of giving consent to the carrying out of ... medical ... treatment if the person ... is incapable of understanding the general nature and effect of the proposed procedure or treatment." Compare Instruments Act 1958 section 118 with regard to capacity to make an enduring power of attorney.

Similar phraseology to that considered in AB is used in the Disability Act and there are some similarities in other aspects of the legislation. However, I must consider the purpose of the Disability Act, especially Part 8 Division 5 concerning supervised treatment orders. That purpose involves providing a benefit to persons with an intellectual disability but also - in every case - protecting other members of the community. I have noted that the treatment plan is very detailed and involves an extensive range of treatments and other measures. It is also adaptable. The treatment and the nature and degree of the restrictions can change depending on person's state and the general circumstances. It is one thing to have an understanding of the broad nature and effects "an act" or, say, medical treatment even if they naturally must include some incidental acts. It is another to understand the program that is the IRTP. Mr. Townsend referred me to PJ, unreported, VCAT proceeding number G13209, 28 February 2008. This case also concerned an application for a supervised treatment order. Member Kefford expressed the view that the relevant consent "must be informed as to all aspects of the treatment program and its duration". She was satisfied that PJ's intellectual disability and past behaviour were "inconsistent with an ability to give informed and durable consent". Whether or not consent has to be informed as to each and every aspect of the treatment program, I agree that it needs to be more than "broad" consent, whatever broad consent would really be in relation to the IRTP. There needs to be sufficient understanding - an understand that is more than superficial - so that the consent may be regarded as real or reliable. I also agree that the consent needs to be durable, in the sense that there is a real appreciation by the person consenting that the level of restriction may intensify in particular ways for specified reasons over a period of time yet to be determined.

This interpretation gives effect to Parliament's purpose, including to reaffirm and strengthen MM's rights but also his responsibilities. However, it does also enable him to be detained while he poses a significant risk of serious harm to others. The interpretation submitted by Mr. Townsend would deprive mildly intellectually disabled persons of the benefits to be had of the IRTP but also remove the means of protecting the community that Parliament intends exist. This is because a broad understanding of the IRTP may not be difficult to establish in their cases.

Ms. Leigh-Smith expressed the view that MM was unable to make "a fully informed decision". I am not satisfied that he was able to make a fully informed decision, although I consider that the correct test is whether he is able to make a sufficiently informed decision. In my view MM is unable to make a sufficiently informed decision.

Is it necessary to detain MM to ensure compliance with the treatment plan and

prevent a significant risk of serious harm to another person?

1. I consider first what is meant by "detain" and then consider whether it is necessary to detain MM.

2. In section 3(1) "detain" is defined for the purposes of Part 8 of the Act, where section 191 is to be found, to include -

"(a) physically locking a person in any premises; and

(b) constantly supervising or escorting a person to prevent the person from exercising freedom of movement".

1. Mr. Townsend acknowledged that this is an inclusive definition but stressed the elements of "physically locking" and "constantly supervising" which, he submitted, were not necessary in MM's case.

2. The Oxford English Dictionary gives as the first definition of "detain" "To keep in confinement or under restraint; to keep prisoner" (OES 2nd Edition, Clarendon Press, Oxford, 1989).

3. The word was considered by the Court of Appeal in R v. Bournewood Community and Mental Health NHS Trust, ex part L [1997] EWCA Civ 2879; [1998] 1 All ER 634. That case concerned a man, L, with autism who was unable to speak and who actually had no capacity to consent or refuse treatment. In determining whether the man had been detained unlawfully in a hospital, the Court stated that whether a person is detained does not depend on the presence or absence of consent or knowledge. The Court then said this -

"In our judgment a person is detained in law if those who have control over the premises in which he is have the intention that he shall not be permitted to leave those premises and have the ability to prevent him from leaving." (at p. 639).

The Court further stated that it was not correct to conclude that L had been "free to leave" for there was evidence that had he attempted to leave the hospital those in charge of him would not have permitted him to do so. Being unprepared to release him into the custody of his carers they were not prepared to let him leave the hospital at all. L was therefore detained there.

In the same way, MM has been detained at SFS and would be detained in stage 4. To the extent that he would not be free to leave he would be detained.

A separate question is whether it is necessary to detain him.

Mr. Walkinshaw, like Mr. Townsend, submitted that MM's willingness to remain at SFS meant that it was not necessary to detain him. On the other hand, Mr. Wright submitted that SFS is a facility that detains persons. This is so as to ensure compliance with the treatment plan.

Ms. Bennett stated that detention was still important for MM. Even though he was in stage 4 of the program, it was stipulated that he attend an Alcoholics' Anonymous group, which he was doing. There were restrictions on his freedom, including a requirement that he abstain from alcohol. He was prohibited from having any sexual relationship with a co-resident. If, for instance, he refused to comply with an officer's direction, he could be returned to a stage of the program that had greater restrictions.

Mr. Charles said that stages 1-3 of the program did not provide any opportunity for a resident to be non-compliant. Stage 4 presented that opportunity. It could not be said what would happen there, in particular whether MM would consume alcohol. He too said that if a problem arose in stage 4 there was scope for MM to return to stage 3 of the progam.

Given the real meaning of "detain" and how "detention" still operates in MM's case, I consider that it is necessary to detain MM to ensure compliance with the treatment plan and prevent a significant risk of serious harm to another person.

Charter of Human Rights and Responsibilities Act 2006

Mr. Townsend made what I think it is fair to describe as only brief submissions in relation to the Charter of Human Rights and Responsibilities Act 2006. He referred especially section 32 which requires that, so far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that it compatible with human rights. The relevant human rights in this case included freedom of movement (section 12), freedom of association (section 16), the right to liberty (section 21) and the right not to be punished more than once (section 26).

Some of these rights are qualified in the relevant sections. For instance, a person must not be subjected to arbitrary arrest or detention (section 21(2)), nor must a person be deprived of his or her liberty except on grounds, and in accordance with, procedures, established by law. It seems to me also that "punishment" should properly be distinguished from "treatment", even if that does involve some restrictions.

Section 7(2) of the Charter provides that a human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including (a) the nature of the right; and (b) the importance of the purpose of the limitation; and (c) the nature and extent of the limitation; and (d) the relationship between the limitation and its purpose; and (e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

I need not restate what the Disability Act provides about balancing MM's rights with the need to reduce the risk to others. What must further be borne in mind especially are the benefits that have been provided to MM that he and his family say they want to continue and the lessening of restrictions as MM continues to make progress, but also the still present risk of serious harm to other vulnerable members of the community.

On that basis, to the extent that MM's human rights would on the face of it be limited by a supervised treatment order, the Charter would permit those limits.

1. For these reasons, I decide that I should make a supervised treatment order, but it should be reviewed as soon as practicable.

2. The treatment plan accompanying the application does not expressly include a review date although the plan was endorsed by the Authorised Program Officer on 23 June 2007 and the Senior Practitioner's certificate, dated 26 June 2007, approves the plan subject to annual review. This means that, as is required, the plan was approved at all material times but the approval may be read as expiring today.

3. Under the Disability Act section 193(1)(b) the Tribunal has power to make a supervised treatment order subject to the treatment plan being varied as specified by the Tribunal. And under the Victorian Civil and Administrative Tribunal Act 1998 section 130 the Tribunal's power to make an order includes a power to make the order subject to any conditions or other orders that the Tribunal thinks fit.

4. To overcome the practical difficulties posed in this case, but also to ensure that MM's rights are protected by an early review, I vary the treatment plan by providing for a review date of 31 July 2008 but also direct that the applicant, the Authorised Program Officer, immediately seek the Senior Practitioner's further approval and notify the Tribunal about that. I also order that the supervised treatment order itself be reviewed no later than 31 July 2008.

1. Mr. Walkinshaw submitted that I should made a decision about the meaning of section 223(8) of the Act as it may apply to MM - that is, that I should decide whether it would be lawful for MM to remain at SFS in the absence of a supervised treatment order. Mr. Wright opposed that, submitting that the Tribunal should not entertain that when the application was one for a supervised treatment order. As I have decided that I should make a supervised treatment order it is not required that I consider section 223.

1. MM has made good progress towards reintegration into the community. This has no doubt been helped by his attitude to the program but also by the support he has received from his parents alongside the treatment and support provided by the professional persons involved in his treatment.

2. MM wants to continue in the program. It was submitted that this meant that the Tribunal could not make a supervised treatment order. For the reasons given, I am satisfied that MM meets all relevant criteria under the legislation - in particular that he is unable to consent to remaining on the program and that it is necessary for the time being to detain him to the extent that he is detained.