Re R [2012] NSWSC 829

Judgment 1HIS HONOUR: This is an appeal from a determination of the Mental Health Review Tribunal made with respect to the plaintiff. The plaintiff appealed from the whole of a decision of the Tribunal and sought an order that a community treatment order made by the Tribunal on 24 February 2012 be set aside. 2According to the record of the Tribunal entitled "Determination of Tribunal", on that day, the Tribunal made a determination under s 35 of the Mental Health Act 2007 that the plaintiff is a mentally ill person and the Tribunal made a community treatment order requiring him to accept treatment and/or medication as prescribed by the Director of Community Treatment of the Croydon Community Mental Health Facility, or her delegate. 3The plaintiff denies that he is mentally ill and also complains that the medication he says he is required to take, is medication to which he is allergic and which has serious side effects. 4The application for the community treatment order was made by the Director of Clinical Services, Concord Centre for Mental Health. 5Section 51(5) of the Mental Health Act provides that a community treatment order may be made in a number of circumstances, including following a mental health inquiry. Under subs 53(4), the Tribunal may not make a community treatment order at a mental health inquiry unless it is of the opinion that the person is a mentally ill person. A mental health inquiry is an inquiry under Div 3 of Pt 2 of Ch 3 of the Act. Such an inquiry is held in relation to a person who is detained in a mental health facility (see ss 27(d) and 34) as the plaintiff was. 6Section 35 prescribes matters to be done and to be considered in the conduct of a mental health inquiry. These include taking steps as provided for in s 35(2A) and (2B). 7Section 150 of the Mental Health Act provides: "150 Composition of Tribunal (1) The Tribunal is to be constituted by one or more members nominated by the President for the exercise of its functions. (2) For the purpose of exercising any of its functions (other than in relation to mental health inquiries or under the Mental Health (Forensic Provisions) Act 1990), the Tribunal must consist of at least 1 member who is to be the President, a Deputy President or a member who is an Australian legal practitioner. (2A) For the purpose of conducting a mental health inquiry, the Tribunal must consist of at least 1 member who is to be the President or a Deputy President or a member qualified to be appointed as a Deputy President. (3) The President may nominate other members of the following kinds: (a) a member who is a psychiatrist, (b) a member referred to in section 141 (2) (c). (4) (Repealed) (5) The regulations may make provision for or with respect to the members who are to constitute the Tribunal for the exercise of any of its functions." 8Regulation 21 of the Mental Health Regulation 2007 provides: "21 Constitution of Tribunal for certain proceedings (1) The Tribunal must be constituted by 3 persons for the purposes of exercising the following functions: (a) a review of a voluntary patient under section 9 of the Act, (b) a review of an involuntary patient under section 37 of the Act, (c) determining an appeal under section 44 of the Act, (d) determining an application for a community treatment order or for the variation or revocation of a community treatment order (other than an application for variation or revocation that is not contested), (e) a review under section 63 of the Act of a detained person, (f) determining an appeal by an affected person under section 67 of the Act, (g) conducting an ECT inquiry within the meaning of Division 3 of Part 2 of Chapter 4 of the Act, (h) determining an application for consent to the performance of a surgical operation on an involuntary patient under section 101 of the Act, (i) determining an application for consent to the carrying out of special medical treatment on an involuntary patient under section 103 of the Act. (2) The Tribunal must be constituted by the President or a Deputy President for the purpose of exercising the function of determining whether to grant an approval to the making of an application for a change of name of a forensic patient as a supervising authority under Division 3 of Part 5 of the Births, Deaths and Marriages Registration Act 1995." 9Pursuant to reg 21(1)(d), the application for a community treatment order in respect of the plaintiff was required to be determined by a Tribunal constituted by three persons. The Tribunal that dealt with the application in this case was not so constituted. It was constituted only by a lawyer, Ms Tracey Sheedy. As the Tribunal was not properly constituted, the community treatment order of 24 February 2012 should be quashed. 10Although the written record provided by the Tribunal of its determination stated that the Tribunal had made a determination in a mental health inquiry under s 35 of the Act, it is clear from the transcript of the proceedings before the Tribunal that it did not conduct such an inquiry. 11The proceeding before the Tribunal opened with the member stating that she had been asked to make a 12-month community treatment order by the hospital. She then outlined the procedure that would be undertaken during the course of the hearing. Evidence was taken and submissions were received. At page 24 of the transcript, the member gave reasons for making a community treatment order. She commenced those reasons by stating that "This is an application for a twelve month community treatment order for [the plaintiff]". Nothing was said about conducting a mental health inquiry under s 35. Nothing was done to comply with s 35(2A) or (2B). 12There is no dispute that there was a constructive failure to exercise jurisdiction under that section. 13The second defendant is the Sydney Local Health District. It was not represented at the hearing before the Tribunal. It has very properly identified the difficulties with the procedures adopted by the Tribunal. I understand it was the second defendant that pointed out that the Tribunal was not properly constituted to deal with the application for the community treatment order. 14It may well be that, notwithstanding the defects in the procedures before the Tribunal, I could proceed with the appeal under ss 67 and 163. Appeals to the Court are appeals de novo (s 164). The second defendant says that the jurisdictional failures by the Tribunal could be cured by the hearing of such an appeal. Whether that is so or not, that is not the appropriate course in this case. Both parties are entitled to a hearing before a properly constituted Tribunal for the community treatment order. On the hearing of that application before three members, it would be expected that at least one of the members would be a psychiatrist. If the appeal proceeded de novo on its merits and were allowed, it would still be open to the second defendant to make a further application for a community treatment order to the Tribunal. 15It is appropriate that the determination of whether the plaintiff is mentally ill and, if so, what form, if any, a community treatment order should be made, be determined by a properly constituted Tribunal. That is Parliament's expectation; it established a specialist Tribunal to deal with those questions. 16Moreover, there may be an issue on appeal as to the width of the orders the Court could make. There may be an issue as to whether the court could vary a community treatment order. I express no view on that question, but it is desirable that the matter be heard properly by the Tribunal before there is any appeal to this Court. 17For these reasons and subject to hearing from counsel as to the precise form of the order, the orders I propose are that the determination and orders made on 24 February 2012 by the Mental Health Review Tribunal constituted by Ms Tracey Sheedy concerning the plaintiff be quashed. 18Secondly, that the Mental Health Review Tribunal determine the application for a community treatment order brought by the Director General of Clinical Services, the Concord Centre for Mental Health, in respect of the plaintiff, according to law, and that the Tribunal be constituted by three members. 19I am conscious that such prerogative relief was not sought in the summons. Nonetheless, it appears to me that prerogative relief is what is appropriate in the circumstances. 20The plaintiff has asked for his costs of the application. 21Rule 42.1 of the Uniform Civil Procedure Rules provides that if the Court makes any order as to costs, it is to order that costs follow the event, unless it appears to the Court that some other order should be made as to the whole or any part of the costs. 22As in other areas, particular principles may apply in protective matters. In Re J (No. 2) [2011] NSWSC 1224, I said: "[118] In this case, the plaintiff has been successful and seeks costs. This matter is heard in the Protective List. Different principles apply in relation to protective matters. This has been recognised in authorities (see, for example, M v K (Supreme Court of New South Wales, Powell J, 24 April 1989 unreported).; Application of O'Hara; Re M [1999] NSWSC 209; and FA v the Protective Commissioner [2009] NSWSC 415. [119] It would be disturbing if persons were dissuaded from applying for relief under protective legislation for fear of incurring an adverse costs order. It would also be against the public interest if the defendant to an application were dissuaded from providing a proper response to what it genuinely considered to be the best interests of the plaintiff for fear of an adverse costs order. The bodies charged with responsibility for making what are very often difficult decisions that impact severely on people's lives have no option but to decide how they will exercise their statutory powers." 23In the present case, the second defendant has acted entirely appropriately. It is not its fault that the proceedings before the Tribunal miscarried. 24The plaintiff was initially self-represented. On the hearing before me today, he is represented by counsel, who informs me he appears pro bono. 25The plaintiff says that he has incurred some expenses and I understand that a psychiatrist's report has been obtained for him and that has come at some cost. On the other hand, that report will be available to be used in the further hearing before the Tribunal. 26The plaintiff also refers to other difficulties that he has faced as a result of a number of applications being made to the Tribunal and as a result of his having been involuntarily detained on a number of occasions. He says that, as a result, his life has been severely disrupted and he has been unable to earn an income. 27However, these last matters are not relevant to the question of what costs order should be made. Even if an order were made that the second defendant pay the plaintiff's costs, that would not compensate him for stress, nor for any income foregone, or matters of that kind. A costs order would only cover the expenses he has incurred in the course of the litigation in this Court. 28In my view, as it is shown that the second defendant has acted entirely reasonably and properly in this litigation and having regard to the matters of policy to which I referred in Re J (No. 2), it is not appropriate to make any order for costs and I decline to make such an order. 29I will hear the parties on the form of the orders that are proposed. 30[Counsel addressed.] 31I make the following orders: