Robertson v Australian Capital Territory [2005] ACTSC 35

The Tribunal may make a psychiatric treatment order in relation to a person if -

(a) the person has a mental illness; and

(b) the tribunal has reasonable grounds for believing that, because of the illness, the person is likely to -

(i) do serious harm to himself, herself or to someone else; or

(ii) suffer serious mental or physical deterioration;

unless subject to involuntary psychiatric treatment; and

(c) the tribunal is satisfied that psychiatric treatment is likely to reduce the harm or deterioration (or the likelihood of harm or deterioration) mentioned in paragraph (b) and result in an improvement in the person's psychiatric condition; and

(d) the treatment cannot be adequately provided in a way that would involve less restriction of freedom of choice and movement of the person than would result from the person being an involuntary patient.

3. A psychiatric treatment order falls within the more general concept of a "mental health order" as defined by s 4 of the Act and Div 4.3 imposes a number of requirements which must be satisfied before any mental health order may be made. In particular, s 23 provides that the Tribunal must consider an assessment of the person conducted under an order made under s 16 or another assessment of the person that the Tribunal considers appropriate. Section 24 requires it to hold an inquiry into the matter and s 25 requires it to consult various people, including any guardian of the person and be satisfied that any treatment ordered can be adequately provided by a specified person or facility.

4. Section 26 also provides that in making a mental health order the Tribunal must take into account the following:

(a) whether the person consents, refuses to consent or has the capacity to consent, to a proposed course of treatment, care and support;

(b) the views and wishes of the person so far as they can be found out;

(c) the views and wishes of the people responsible for the day-to-day care of the person, so far as those views and wishes are made known to the tribunal;

(d) the views of the people appearing at the proceeding;

(e) the views of the people consulted under section 25;

(f) that the person's welfare and interests should be appropriately protected;

(g) that the person's rights should not be interfered with except to the least extent necessary;

(h) that the person should be encouraged to look after himself or herself;

(i) that, as far as possible, the person should live in the general community and join in community activities;

(j) that any restrictions placed on the person should be the minimum necessary for the safe and effective care of the person;

(k) the alternative treatments, programs and other services available including -

(i) the purposes of those treatments, programs and services; and

(ii) the benefits likely to be derived by the person from those treatments, programs and services;

(iii) the distress, discomfort, risks, side effects or other disadvantages associated with those treatments, programs and services;

(l) any relevant medical history of the person;

(m) the religious, cultural and language needs of the person;

(n) for a person referred to the tribunal under section 15 or a mentally ill or mentally dysfunctional offender - the nature and circumstances of the offence in relation to which the person has been arrested, or may be or has been charged;

(o) for a mentally ill or mentally dysfunctional offender - the nature and extent of the person's mental illness or mental dysfunction, including the effect it is likely to have on the person's behaviour in the future;

(p) for a mentally ill or mentally dysfunctional offender - whether or not, if the person is not detained -

(i) the person's health or safety is, or is likely to be, substantially at risk; or

(ii) the person is likely to do serious harm to others;

(q) anything else prescribed under the regulations for this section.

5. The Tribunal gave no reasons for its decision. The appeal was brought, by leave, outside the statutory period within which it would otherwise have had to have been commenced. The ACT Government Solicitor ("ACTGS"), acting on behalf of the respondent, wrote to the President of the Tribunal on 8 March 2005 requesting the provision of written reasons for the decision pursuant to s 108 of the Act. There was no written reply but the ACTGS was subsequently informed that the Tribunal had refused to provide reasons on the ground that the respondent was not entitled to them. In response, the ACTGS wrote to the Tribunal again on 15 March 2005, referring to the relevant sections of the Act and suggesting that the respondent was clearly entitled to a written statement of reasons. That letter acknowledged that the 28 day period stipulated in s 108 for a written request to be given to the Presidential member of the Tribunal had expired but observed that this had been attributable to the appellant's delay in instituting the appeal. There was again no written reply but the ACTGS was informed that the Tribunal had, again, refused to provide reasons, this time on the ground that the request had been made too late.

(1) Where--

(a) the tribunal makes a decision; and

(b) a person who is entitled to appeal to the Supreme Court against the decision requests the presidential member, in accordance with subsection (3), for a statement of reasons in respect of the decision;

the presidential member shall give a written statement of those reasons to the person as soon as practicable but, in any case, within 28 days after the day on which the request is received by the presidential member.

(2) A request for a statement of reasons shall be in writing given to the presidential member within 28 days after the day on which the decision was made.

(3) A statement of reasons shall--

(a) set out the tribunal's findings on material questions of fact; and

(b) refer to the evidence or other material on which those findings were made; and

(c) give the tribunal's reasons for the decision.

7. This is a somewhat curious provision. One might have expected that any member of the community whose freedom was to be curtailed by a mental health order would be entitled to an explanation of the need for such a measure, even in the absence of such a written request. Whilst the Human Rights Act 2004 (ACT) does not specifically require the provision of reasons for orders detaining a person on mental health grounds, as it does for persons arrested on criminal charges (see s 18), courts and tribunals are almost invariably obliged to explain the reasons for their decisions without requiring the litigant, against whom orders have been made, to submit a written request. It seems incongruous to impose such a requirement upon people who have been found to be mentally dysfunctional and whose freedom may have been limited as a consequence of the order in question. It may have been thought that non-presidential members of the Tribunal might find a general requirement for reasons somewhat onerous or that participation in the proceedings would be sufficient to give the person concerned a reasonable understanding of the Tribunal's reasons and that a more formal statement might be necessary only in the event of an appeal. Whatever the underlying policy, the section does seem to contemplate that the Tribunal will not be required to give reasons unless a formal request is made.

8. The requirement that any such request be made within 28 days was presumably thought appropriate because that is the period within which an appeal to the Supreme Court must normally be commenced. However, s 141 of the Act provides that the Supreme Court may allow further time for the commencement of such an appeal and, if it does so, it will obviously be just as important for the reasons to be available for consideration on the hearing of the appeal as it would if the appeal had been instituted within the 28 day period stipulated. There is nothing in s 108 to prevent the provision of reasons if requested after the expiration of the stipulated period, though if there were an extensive delay the Tribunal could conceivably encounter some difficulty in adequately recalling at least some aspects of its reasons, particularly if sufficient contemporaneous notes had not been made. In the present case, however, the first request was made less than six weeks after the hearing of the inquiry in the context of an appeal pending in the Supreme Court. In these circumstances the Tribunal's refusal is disappointing.

9. No argument was raised to the effect that any order extending the time within which an appeal may be commenced should be taken to have similarly extended the time within which reasons may be requested and, for present purposes, I will act upon the assumption that the refusal to provide reasons did not constitute an error of law. Nonetheless, as a consequence of the refusal the decision appealed from has been left unsupported by any appraisal of the evidence, discussion of relevant considerations or other statement of reasons.

10. Whilst a litigant might suspect that his or her prospects of succeeding on appeal would not be hampered by the fact that the relevant court or tribunal had refused to explain why it made the order in question, I am required to do the best I can to determine the appeal by reference to the limited material available to me. That material consists of a document issued by the Deputy Registrar of the Tribunal and entitled "Psychiatric Treatment Order" ("the PTO"), the evidence that was before the Tribunal at the inquiry, the transcript of the proceedings before the Tribunal and a further report from Dr Tracy tendered, by consent, during the course of the appeal.

On Thursday, 27 January 2005 the Mental Health Tribunal held an inquiry regarding the above-mentioned application pursuant to Section 24 of the Mental Health (Treatment and Care) Act 1994 in respect of JOHN ROBERTSON.

Pursuant to sub-section [sic] 28 of the Mental Health (Treatment and Care) Act 1994 the Tribunal found that JOHN ROBERTSON has a mental illness AND:

* the Tribunal has reasonable grounds for believing that, because of the illness he is likely to -

(i) do serious harm to himself or someone else; or

(ii) suffer serious mental or physical deterioration;

unless subject to involuntary psychiatric treatment; and

* is satisfied that psychiatric treatment is likely to reduce the harm or deterioration (or the likelihood of harm or deterioration) referred to above and result in an improvement in his condition; and

* the treatment cannot be adequately provided in a way that would involve less restriction of the freedom of choice and movement of him than would result from him being an involuntary patient.

AND THEREFORE ORDERS that JOHN ROBERTSON be subject to a Psychiatric Treatment Order.

Pursuant to sub-section [sic] 32 of the Mental Health (Treatment and Care) Act 1994, the Chief Psychiatrist or her delegate is responsible for the treatment and care of JOHN ROBERTSON.

In addition, JOHN ROBERTSON shall, pursuant to sub-section [sic] 29(1):

(ii) undertake counselling, training, therapeutic or rehabilitation program.

This order has effect for a period of 6 months from the date that this order is made, pursuant to Section (sic) 36J(1)(a) of the Mental Health (Treatment and Care) Act 1994.

IT IS NOTED pursuant to sub-section 29(3)(c) of the Mental Health (Treatment and Care) Act 1994 that JOHN ROBERTSON does not have the capacity to consent to the order.

IT IS FURTHER NOTED that this order be reviewed prior to expiry.

12. No issue was raised as to the status of the findings contained in such a document, though they clearly do not constitute "reasons" for the purposes of s 108. Reasons for judgment are usually given by the judge or magistrate, either orally or in the form of a written document certified by the Associate to be a true copy of the reasons given by the judge or magistrate for his or her decision. On the other hand, a document providing evidence of the orders that a court has made is normally issued by the Registrar or Deputy Registrar and does not contain any prefatory statements as to the findings which the court made in support of those orders.

13. It must also be said that the manner in which the findings have been expressed in the PTO does not inspire confidence. The findings seem to merely restate the statutory criteria set out in s 28 rather than reflecting conclusions reached on the basis of the evidence actually adduced at the inquiry. In particular, it is difficult to see how the evidence could have provided a sensible basis for the finding that there were reasonable grounds to believe that because of the appellant's mental illness he was either likely to do serious harm to himself or someone else or, alternatively, to suffer serious mental or physical deterioration unless subject to involuntary psychiatric treatment. Whilst the relevant statutory criterion requires reasonable grounds for only one of these propositions, one would have expected the Tribunal to have considered each of them and made separate findings as to whether there were reasonable grounds to believe that each such risk existed. There may, of course, be circumstances in which alternative findings are entirely appropriate. For example, a court may be unable to determine whether an act was due to malice or thoughtlessness. The difficulty that arises in the present case is that there is no apparent reason to regard the two propositions as alternatives. A likelihood that he might cause harm to himself or someone else is not inconsistent with a likelihood that he might suffer mental or physical deterioration and vice versa. This consideration suggests that what is described as a finding may merely reflect the form of the statutory provision.

14. However, such a contention was not raised in argument and, in the absence of any submission to the contrary, I am prepared to act upon the assumption that the Tribunal made the findings referred to in the document though, regrettably, the weight that may be given to them is limited, not only by the absence of any statement of reasons to explain why they were made, but also by the unsatisfactory nature of the first finding and the apparent paucity of evidence to support others.

15. The transcript of the inquiry reveals what seems to have been a relatively informal discussion amongst a number of people seated around a table including the members of the Tribunal, the appellant and his solicitor, a solicitor for the Tribunal, Mr McLeod from the Community Advocate's Office, Dr Tennant, a psychiatrist and Mr Carter, a psychiatric nurse at Brian Hennessy Rehabilitation Center ("Hennessy House"). Hennessy House is the institution where the appellant had been confined as an involuntary patient since 10 January 2005 following his transfer from Morriset Hospital where he had been held pursuant to treatment orders under New South Wales legislation. Such informality may well be desirable, if only because it encourages the person in respect of whom the order is sought to participate in the discussion. Furthermore, all of those present were clearly seeking to act in the appellant's best interests by ensuring that he received the care and treatment that they obviously believed he needed. Regrettably, however, the statutory criteria which the Tribunal was obliged to address in considering the application do not seem to have been discussed and there seems to have been little, if any, basis for some of the findings reflected in the PTO issued by the Deputy Registrar.

16. The application was supported by a statutory declaration executed by Dr Tracy. The statutory declaration seems to have been a pro forma document incorporated into the application form containing provision for opinions to be expressed by placing a cross in relevant boxes. Whilst this may be convenient, it is a most unsatisfactory way of obtaining expert evidence in support of an application capable of having a severe impact upon a person's freedom. The document did not reveal any reason for Dr Tracy's views that the appellant's health or safety was likely to be substantially at risk or that he was likely to do serious harm to others. However, she did explain that he had a long history of schizophrenia and had been verbally and physically aggressive in the past. She also said that he needed ongoing treatment to maintain his mental health and without such treatment he would become ill. Under the heading of "History of Present Illness and Present Mental Health Status Examination" she added:

. . . For the last year his mental state has improved and Mr Robertson has been managed in the open area at Morriset Hospital with no difficulties. At interview he remains grandiose and delusional and irritable (seen 11/01/05).

17. In answer to a question contained on the form as to whether the appellant had the capacity to give informed consent to treatment, care or support, Dr Tracy placed a cross in the box marked "yes".

18. During the course of the hearing the appellant's solicitor indicated that the appellant wished to move to Victoria where his family lived. At one point during the discussion he added that "he is clearly at risk if he doesn't take treatment in Victoria". Mr Sabharwal, who appeared for the respondent on the hearing of the appeal, submitted that the disposition of the matter may have been influenced by that concession and I accept that this is possible.

19. Mr Carter told the Tribunal that since the appellant had been transferred to Hennessy House he had not been given unsupervised leave but had been going out with staff. He said that he had been a pleasure to take out and that there had been "no problems at all" on any of the outings. He had also been very easy to look after at Hennessy House and there had been "no management problems whatsoever". Later, he explained that the appellant had actually "made great progress in all fronts" (sic) and that he had demonstrated that he was quite able to make decisions about managing his own finances.

20. Mr McLeod intervened to indicate that he had known the appellant for quite a few years and worked through a lot of issues with him. He said that the appellant had been known for aggression in the past but that there had been no evidence of that "of late", though he still suffered from delusions.

21. Dr Tennant indicated that he needed "to continue in treatment order here" (sic) whilst any issues concerning his relocation to Victoria were resolved.

22. After some further discussion, Mr Carter told the appellant that there was a "concurrence of opinion" that he was doing very well and said that "we're not looking at an extended circumstance there at all" (sic).

23. The President then adverted to the information contained in Dr Tracy's application and a letter from Ms Johnson, another nurse at Hennessy House, and said that she thought "these people" all agreed and that the appellant himself had "certainly agreed" that he should, at that stage, be on an order until things settled down and he was transferred to Melbourne. I have been unable to find anything in the transcript from which an agreement by the appellant to that effect might have been inferred, though he did suggest that he would be content to live with his mother on a "CTO" in Melbourne.

24. After some further comments from the appellant the President then stated that the Tribunal would make the order.

25. Having regard to the appellant's history of mental illness, it is entirely possible that the making of the order would have been in his interests. However, such a perception, even if clearly articulated, is not sufficient to justify such an order. The statutory criteria are obviously intended to strike a balance amongst the sometimes competing interests of the community and the rights of people thought to be mentally ill and they must be duly addressed by the Tribunal.

26. It may be noted that, apart from the opinions conveyed by Dr Tracy by means of the crosses marked in boxes on the statutory declaration form, there was no real evidence before the Tribunal of any likelihood that the appellant would do serious harm to himself or someone else. Furthermore, Dr Tracy had met him only once and the opinions she then expressed seem to have been based substantially upon records of past aggression. Since she and other people such as Mr Carter made it clear that his mental condition had improved, apparently during the year prior to the application, these opinions provided only a fragile basis for the first of the alternative finding.

27. There was, however, no evidence, whether from Dr Tracy or anyone else, to support the alternative finding that the appellant would suffer serious mental or physical deterioration unless subject to involuntary psychiatric treatment. As previously mentioned, Dr Tracy did express the opinion that he needed ongoing treatment to maintain his mental health but the statutory declaration did not provide any ground for a conclusion that such treatment could only be provided on an involuntary basis.

28. Nor was there any evidence to support the apparent finding that the appellant did not have the capacity to give informed consent. On the contrary, the only evidence on this issue consisted of the opinion expressed by Dr Tracy in putting a cross in the box marked "yes".

29. Accordingly, had the matter fallen for determination by reference to the evidence before the Tribunal I would have been obliged to simply uphold the appeal and no question of remission to the Tribunal would have arisen.

30. However, as mentioned earlier, a further report by Dr Tracy was tendered during the hearing of the appeal. That report revealed that she had seen the appellant on five occasions since the hearing before the Tribunal and had read both the case file at Morriset Hospital and the available files held by Mental Health ACT. She recounted the fact that the appellant had been at Morriset Hospital for a number of years because of past episodes of highly threatening behaviour and referred to episodes of physical violence in 1991 and 1992. She also said that he had previously assaulted police, but added that there were no outstanding criminal charges pending against him, to her knowledge, and that there had been no episodes of violence since his transfer to the Hennessy House, though she felt that he had been verbally threatening at times. She observed, however, that he had been on substantial doses of medication that had kept his "symptoms under a degree of control".

31. The report concluded with the following comments:

I believe from my reading of his case file and ongoing interviews that Mr Robertson does suffer from schizophrenia and that this illness requires robust treatment with medication and support currently in a residential setting. Without such treatment and support I believe Mr Robertson is likely to do serious harm to others and that because of his illness Mr Robertson is unable to make reasonable judgments about matters relating to his health and safety.

Mr Robertson wishes to return to live in Melbourne and I am currently exploring options.

32. The report was admitted without objection and Mr Lee, counsel for the appellant, indicated that he did not wish to cross-examine Dr Tracy.

33. Had this material been before the Tribunal it would clearly have provided prima facie grounds for findings that, because of his illness, the appellant was likely to do serious harm to himself and/or someone else. Mr Sabharwal submitted that since an appeal of this nature is by way of rehearing it would be appropriate for me to determine the matter afresh and that, having regard to the contents of this report, I should readily conclude that the orders were justified. Hence, even if the Tribunal's approach to the matter had been inadequate, the appeal should be dismissed.

34. This proposition was persuasively argued and there is much to commend the course suggested. However, I am unable to accede to Mr Sabharwal's submission.

35. As I have mentioned Div 4.3 imposes certain requirements that must be fulfilled prior to the making of a mental health order, including consideration of an appropriate assessment. Whilst the letter from Ms Johnston purported to have been written pursuant to s 22 of the Act, which relates to assessments conducted pursuant to an order under s 16, there was no evidence that any such order had ever been made. Nor was there any evidence that the alternative criterion in s 23 had been satisfied by the Tribunal forming the view that Ms Johnston's assessment had been appropriate. In any event, the term "assessment" is defined by s 4 to mean "a psychiatric or psychological assessment" and, in the absence of any statutory indication to the contrary, that would appear to require an assessment by a psychiatrist or a psychologist. I was informed, during the course of argument, that Ms Johnston was a psychiatric nurse and, whilst I have no doubt of her professional competence and expertise, I do not think that the contents of her report can be regarded as an "assessment" for the purposes of s 23. Furthermore, even if the contents of Dr Tracy's recent report could properly be regarded as an "assessment" for the purposes of s 23, it was not an assessment made pursuant to an order under s 16 or one that the Tribunal had the opportunity of considering.

36. Accordingly, quite apart from any issue as to the adequacy of the evidence available to support the necessary findings, I cannot be satisfied that the order was lawfully made.

37. In these circumstances, the order of the Tribunal should be set aside and the matter remitted to the Tribunal to be dealt with according to law.

38. If, pending a rehearing, some need for urgent intervention arises, it can presumably be dealt with by the Tribunal pursuant to the emergency powers provided by the provisions contained in Pt 5 of the Act.

39. I note, in passing, that the application had been made by Dr Tracy but that she did not appear to have been joined as a party to the appeal. However, since Mr Sabharwal informed me that she was in court and available to give evidence and no point was taken about this issue, it is unnecessary to consider it further.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Solicitor for the respondent: ACT Government Solicitor