Plaintiff v Defendants

Plaintiff v Defendants - [2014] VSC 564 - VSC 2014 case summary — Zoe

[26]

When I made the Involuntary Treatment Order under the provisions of the Mental Health Act on 27 August 2013, I was aware of the unusual nature of that action given that the Board had, only that morning, revoked the previous Involuntary Treatment Order. However, in light of the change in attitude of [XX] to staying in hospital, the clinical assessment made by the CATT clinician during the afternoon of 27 August, information obtained from the husband of [XX] by the social worker, which was communicated to me and what I and other members of the clinical treating team considered to be significant risks presented to the children of [XX] by her mental state, it was then (and remains) my view that it was appropriate to take the unusual step of re-recommending [XX] under an involuntary treatment order. In fact, given the risks [XX] posed to herself and others, particularly her children, I considered it my duty to do so.

I refer to the Recommendation and Involuntary Treatment Order made by me on 27 August 2013, which form part of Exhibit [WW]-1 and specifically note paragraph 3(c) of the Recommendation which details one of the criteria which must be met pursuant to Section 8(1) of the Mental Health Act 1986 to permit a Recommendation to be made, namely, that 'because of the person's mental illness, involuntary treatment of the person is necessary for his or her health or safety (whether to prevent a deterioration in the person's physical or mental condition or otherwise) or for the protection of members of the public'. There were so many complexities around the management of [XX's] Bipolar Affective Disorder from both a clinical and pharmacokinetic perspective that it was extremely challenging to endeavour to treat [XX] effectively even in the intensive environment of a specialised inpatient unit where medication could be micro-managed. I did not believe there was any realistic prospect of her medication being able to be adequately managed in the community. Further, only modest improvement had been achieved in her mental health such that she still presented a high risk to herself and her mental health was still unstable. Given the entire clinical picture and the community living arrangements proposed by [XX] and the clinical assessment of the CATT clinician, I have no doubt that her discharge from hospital on the afternoon of 27 August 2013 would have led to a precipitous decline in her mental health. EK was of the same opinion. We both agreed that [XX] met all five criteria specified in the Recommendation. The situation had altered significantly since the MHRB Hearing earlier that day.

I understand that one of the allegations made is that I did not properly consider [XX's] human rights under the Charter of Human Rights and Responsibilities Act 2006. I am not a lawyer and I did not specifically refer to that legislation. However, I was well aware that detaining someone in hospital and treating them against their will is only allowed to occur if the criteria in the Mental Health Act are met. I was also acutely aware of the fact that [XX] was mentally unwell and at risk of seriously harming herself, and of harming her children. I did not and would not have recommended [XX] for involuntary treatment simply because I disagreed with the Board's conclusion. I genuinely and firmly believed (and still do) that it was necessary to keep [XX] in hospital and treat her against her will in order to protect [XX] and her children from harm.[12]

[33]

4 Objects of Act

(1) The objects of this Act are -

(a) to provide for the care, treatment and protection of mentally ill people who do not or cannot consent to that care, treatment or protection; and

(ab) to facilitate the provision of treatment and care to people with a mental disorder; and

(ac) to protect the rights of people with a mental disorder; and

(b) to establish a Mental Health Review Board; and

(c) to establish a Psychosurgery Review Board; and

(d) to provide for the appointment and functions of community visitors; and

(da) to establish a Victorian Institute of Forensic Mental Health; and

(e) to ensure that people with a mental disorder are informed of and make use of the provisions of this Act.

(2) It is the intention of Parliament that the provisions of this Act are to be interpreted and that every function, power, authority, discretion, jurisdiction and duty conferred or imposed by this Act is to be exercised or performed so that -

(a) people with a mental disorder are given the best possible care and treatment appropriate to their needs in the least possible restrictive environment and least possible intrusive manner consistent with the effective giving of that care and treatment; and

(b) in providing for the care and treatment of people with a mental disorder and the protection of members of the public any restriction upon the liberty of patients and other people with a mental disorder and any interference with their rights, privacy, dignity and self-respect are kept to the minimum necessary in the circumstances.

...

6A Principles of treatment and care

It is the intention of Parliament that the following principles be given effect to with respect to the provision of treatment and care to people with a mental disorder -

(a) people with a mental disorder should be provided with timely and high quality treatment and care in accordance with professionally accepted standards;

(b) wherever possible, people with a mental disorder should be treated in the community;

(c) the provision of treatment and care should be designed to assist people with a mental disorder to, wherever possible, live, work and participate in the community;

...

8 Criteria for involuntary treatment

(1) The criteria for the involuntary treatment of a person under this Act are that -

(a) the person appears to be mentally ill; and

(b) the person's mental illness requires immediate treatment and that treatment can be obtained by the person being subject to an involuntary treatment order; and

(c) because of the person's mental illness, involuntary treatment of the person is necessary for his or her health or safety (whether to prevent a deterioration in the person's physical or mental condition or otherwise) or for the protection of members of the public; and

(d) the person has refused or is unable to consent to the necessary treatment for the mental illness; and

(e) the person cannot receive adequate treatment for the mental illness in a manner less restrictive of his or her freedom of decision and action.

Note

In considering whether a person has refused or is unable to

consent to treatment, see section 3A.

...

9 Request and recommendation for involuntary treatment

(1) The documents required to initiate the involuntary treatment of a person are -

(a) a request in the prescribed form and containing the prescribed particulars; and

(b) a recommendation in the prescribed form by a registered medical practitioner following a personal examination of the person.

(2) A request may be signed before or after a recommendation is made.

(3) A registered medical practitioner must not make a recommendation under subsection (1) unless he or she considers that -

(a) the criteria in section 8(1) apply to the person; and

(b) an involuntary treatment order should be made for the person.

(4) A request and recommendation have effect for 72 hours following the examination of the person by the registered medical practitioner who made the recommendation.

(5) While they have effect, a request and recommendation made in accordance with this section are sufficient authority for a person referred to in subsection (6) to -

(a) arrange for the assessment of the person to whom the recommendation relates by a registered medical practitioner employed by an approved mental health service or a mental health practitioner; or

(b) take the person to whom the recommendation relates to an appropriate approved mental health service.

(6) The persons who may take action under subsection (5) are -

(a) the person making the request; or

(b) a person authorised by the person making the request; or

(c) a prescribed person.

...

12AA Involuntary treatment orders - persons in approved mental health services

(1) This section applies if -

(a) a request and recommendation have been made for a person; and

(b) the person has been taken to, or is in, an approved mental health service.

(2) A registered medical practitioner employed by the approved mental health service or a mental health practitioner must make an involuntary treatment order for the person.

...

12AC Examination by authorised psychiatrist

(1) If an involuntary treatment order is made for a person, the authorised psychiatrist must examine the person -

(a) if section 12(5) or 12AA(6) applies - as soon as practicable after the order is made, but in any case within 24 hours after the order is made; or

(b) otherwise - within 24 hours after the order is made.

(2) On examining the person under subsection (1) -

(a) if the authorised psychiatrist considers that the criteria in section 8(1) do not apply to the person - the authorised psychiatrist must discharge the person from the order;

(b) if the authorised psychiatrist is satisfied that the criteria in section 8(1) apply to the person - the authorised psychiatrist must confirm the order.

...

(6) A registered medical practitioner who has made a recommendation under section 9 in respect of a person must not examine the person under this section.

...

[112]

Consistently with this court's rejection of the adoption of rigid rules in statutory construction, it should not be accepted that purposive construction may never allow of reading a provision as if it contained additional words (or omitted words) with the effect of expanding its field of operation. As the review of the authorities in Leys demonstrates, it is possible to point to decisions in which courts have adopted a purposive construction having that effect. And as their Honours observed by reference to the legislation considered in Carr v Western Australia, the question of whether a construction 'reads up' a provision, giving it an extended operation, or 'reads down' a provision, confining its operation, may be moot.

The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills 'gaps disclosed in legislation' or makes an insertion which is 'too big, or too much at variance with the language in fact used by the legislature'.

Lord Diplock's three conditions (as reformulated in Inco Europe) accord with the statements of principle in Cooper Brookes and McColl JA was right to consider that satisfaction of each could be treated as a prerequisite to reading s 12(2) as if it contained additional words before her Honour required satisfaction of a fourth condition of consistency with the wording of the provision. However, it is unnecessary to decide whether Lord Diplock's three conditions are always, or even usually, necessary and sufficient. This is because the task remains the construction of the words the legislature has enacted. In this respect it may not be sufficient that 'the modified construction is reasonably open having regard to the statutory scheme' because any modified meaning must be consistent with the language in fact used by the legislature. Lord Diplock never suggested otherwise. Sometimes, as McHugh J observed in Newcastle City Council v GIO General Ltd, the language of a provision will not admit of a remedial construction. Relevant for present purposes was his Honour's further observation, '[i]f the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances'.[47]

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