Ex parte Fitzgerald; re the New South Wales Medical Board [1945] NSWStRp 44; (1945) 46 SR (NSW) 111, referred to.

Judgment Number: [2016] TASSC 34

1. This is an appeal pursuant to s 174 of the Mental Health Act 2013 ("the Act") from a decision of the Mental Health Tribunal. The appellant was the subject of a treatment order that was made under s 39 of the Act on 21 October 2015. On 14 April 2016 an application for the renewal of that treatment order was dismissed by the tribunal because the required papers had not been given to the appellant as required by s 37(6)(a) of the Act. Subsequently the appellant's treating psychiatrist, Dr Paech, made an application for a new treatment order. That application came before the tribunal on 28 April 2016, and the tribunal made the order sought. This is an appeal from the decision to make that order.
2. The appellant contends that the tribunal erred in two respects:
   • Section 37(4)(a) makes provision for assessments by the applicant who seeks the treatment order and by "one other approved medical practitioner, separately". The appellant contends that the requirement for a second separate assessment was not satisfied.
   • Section 37(4)(b) requires that both the applicant and "the other approved medical practitioner" be satisfied that the person to whom the application relates meets the treatment criteria listed in s 40 of the Act. The appellant contends that the tribunal erred in finding that the "other approved medical practitioner" was satisfied that she met all the treatment criteria.

1. Section 37(1) of the Act provides, "Any approved medical practitioner may apply to the Tribunal for a treatment order in respect of a person." Section 37 imposes different requirements according to whether the person in question is subject to an assessment order under the Act. At the relevant time, the appellant was not subject to an assessment order. It was therefore necessary for the tribunal to have regard to s 37(4)(a), which provides as follows:

"(4) If the person is not subject to an assessment order, the application should only be made if -

(a) the person has been assessed by the applicant and one other approved medical practitioner, separately, within the preceding 7 days ...".

1. The meaning of "assessment" is dealt with by s 5 of the Act, which reads as follows:

For the purposes of this Act assessment is the clinical process involved in diagnosing the condition of a person's mental health and, where necessary, identifying the most appropriate treatment."

1. The appellant had been assessed by Dr Paech within the seven days preceding the application. There is no dispute about that. The tribunal made a finding, which the appellant disputes, that she had been separately assessed by a Dr Franco Giarraputo within the seven days preceding the application. She accepts that Dr Giarraputo was an "approved medical practitioner".
2. Dr Paech gave evidence before the tribunal of having assessed the appellant during a conversation on 14 April 2016. He gave evidence that Dr Giarraputo had been able to hear the conversation, but that he had been out of sight. He produced Dr Giarraputo's handwritten notes. They were very hard to read. I have not been provided with them. The transcript of the tribunal proceedings reveals that Dr Paech and the tribunal members together tried to work out what they said, and that they said something like this:

"I know [first name] well. She was outside my office and I was able to ascertain that her mental state was ... her normal mental state. She was exploding, shouting, flood of ideas, paranoid, irritable, impaired judgment, not willing to engage meaningfully, therapeutically. She lacks capacity under MHA [Mental Health Act] and should be under TO [treatment order]. Unable to weigh info about decision."

1. The tribunal gave written reasons for its decision to make a treatment order. Its reasons contain two paragraphs relevant to this motion to review. Those paragraphs read as follows:

"11 Dr JP [Dr Paech] advised that Dr FG [Dr Giarraputo] had been working in his office and had overheard the conversation between [the appellant] and Dr JP on 14 April 2016. Dr FG also made a note in [the appellant's] clinical file of the conversation and [the appellant's] symptoms demonstrated through that conversation. He concluded his note with, 'she lacks capacity under the MHA and should be under TO'.

1. The Tribunal is satisfied that both Dr JP and Dr FG separately assessed [the appellant] and concluded from their assessments that Patient met the treatment criteria."
2. Counsel for the appellant submitted to me that assessment by overhearing a conversation could not reasonably be regarded as "the clinical process involved in diagnosing the condition of a person's mental health" within the meaning of s 5 of the Act. She also submitted that the word "separately" in s 37(4)(a) made it necessary for each assessing medical practitioner to speak to the patient personally.
3. Some psychiatric patients are more co-operative than others. Some may be completely unwilling to submit to interviews with different psychiatrists at two separate times. It follows that the nature of a clinical psychiatric assessment must depend on the circumstances of the case.
4. A similar view was taken by the Full Court of the Supreme Court of New South Wales in Ex parte Fitzgerald; re the New South Wales Medical Board [1945] NSWStRp 44; (1945) 46 SR (NSW) 111. That case concerned disciplinary proceedings against a medical practitioner who had certified that his next door neighbour was "a suitable case for admission to the Reception House" in accordance with procedures under the Lunacy Act 1898 (NSW). The result was that the police took the neighbour away to a mental hospital. The legislation provided for the required certificate to be given by a practitioner who had "personally examined" the person in question. Jordan CJ, delivering the judgment of the Full Court, said at 114:

"The schedule contemplates that the medical practitioner should have made his examination on a particular date; but it is not necessary that he should confine his observations to a single day or that the examination should in every case take the same form or a particular form, for example that it must necessarily include the putting of questions to the propositus. The nature and extent of the personal examination which is necessary and proper in a particular case must necessarily depend upon the circumstances of the case."

1. One can infer that s 37(4)(a) requires two medical practitioners to assess a patient separately so that they do not influence one another. If two practitioners are able to see and/or hear the patient for long enough to form opinions in relation to the prescribed treatment criteria, and then to make assessments without influencing one another, then no purpose would be served by requiring them to undertake their observations at separate times. I therefore consider that the word "separately" should be interpreted as meaning "independently from one another", and not interpreted as requiring assessments in relation to conversation or conduct at separate times.
2. If a psychiatrist is able to form an opinion as to the prescribed treatment criteria without personally engaging in conversation with the patient, or on the basis of hearing another psychiatrist's conversation with the patient whilst out of sight, there is no reason why such an assessment should not be regarded as a clinical process for the purposes of s 5 of the Act.
3. Section 42 of the Act contains provisions as to the effect of a treatment order. When a treatment order is made, s 42(1) authorises the giving of treatment for mental illness to the patient without the patient's consent. Section 42(2) authorises the patient's detention without consent. Obviously the making of a treatment order amounts to an extreme interference with the individual's basic rights and liberties. Counsel for the appellant drew my attention to the second reading speech relating to the Mental Health (Transitional and Consequential Provisions) Bill 2013 (Hansard, House of Assembly, 15 October 2013) in which the then Minister for Health, Ms O'Byrne, explained that the Act "ensures that persons with a mental illness are treated within a framework that is consistent with a human rights approach and that is focussed on consumers and their rights".
4. However, as Hayne, Heydon, Crennan and Kiefel JJ said in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41, 239 CLR 27 at [47], "the task of statutory construction must begin with a consideration of the text itself", and, "The language which has actually been employed in the text of legislation is the surest guide to legislative intention". The wording of s 37(4)(a) does not suggest that any particular form of assessment is required, nor that any particular form of assessment will not qualify as an assessment for the purposes of s 5. There is no basis for reading into the legislation an implied requirement that best practice is essential to the validity of an assessment. Provided the form of assessment undertaken is one that enables the practitioner to make a diagnosis, and to do so without being influenced by the other assessing practitioner, then the requirements of s 37(4)(a) are satisfied.
5. Under s 174(3) of the Act, an appeal from a determination of the tribunal may be brought as of right on a question of law, or, on any other question, only with the leave of this Court. For the reasons stated, I consider that it was reasonably open to the tribunal to conclude that the two doctors had assessed the appellant "separately". The tribunal was constituted by three members, one of whom was a psychiatrist. I have no reason to disagree with the tribunal's conclusion that the two doctors separately assessed the appellant. It is implicit in the tribunal's conclusion as to that point that its members accepted that Dr Giarraputo's assessment, based on an overheard conversation, could be regarded as a "clinical process" for the purposes of the definition of "assessment" in s 5 of the Act. In view of the composition of the tribunal, I do not think I should take a different view.
6. For these reasons, I reject the appellant's contention that Dr Giarraputo did not conduct a second separate assessment as required by s 37(4)(a).

1. Section 37(4)(b) of the Act provides as follows:

"(4) If the person is not subject to an assessment order, the application should only be made if -

(b) the applicant and the other approved medical practitioner are both satisfied from their respective assessments that the person meets the treatment criteria."

1. The treatment criteria are listed in s 40 of the Act, which reads as follows:

The treatment criteria in relation to a person are -

(b) without treatment, the mental illness will, or is likely to, seriously harm -

(c) the treatment will be appropriate and effective in terms of the outcomes referred to in section 6(1); and

(d) the treatment cannot be adequately given except under a treatment order; and

(e) the person does not have decision-making capacity."

1. Counsel for the appellant accepted that the evidence about Dr Giarraputo's notes could reasonably lead to a conclusion that he was satisfied as to the criteria specified in s 40(a), (d) and (e), namely that the appellant had a mental illness, that treatment could not be adequately given except under a treatment order, and that she did not have decision-making capacity. However she submitted that the evidence before the tribunal was insufficient for the tribunal to make findings that Dr Giarraputo was satisfied as to the criteria in s 40(b) and (c), namely that without treatment the appellant's mental illness would, or was likely to, seriously harm her health or safety or that of others, and that treatment would be appropriate and effective in terms of outcomes.
2. The range of outcomes listed in s 6(1) is very wide. The subsection reads as follows:

"(1) For the purposes of this Act, treatment is the professional intervention necessary to -

(b) manage and alleviate, where possible, the ill effects of mental illness; or

(c) reduce the risks that persons with mental illness may, on that account, pose to themselves or others; or

(d) monitor or evaluate a person's mental state."

1. There is no evidence that Dr Giarraputo said or wrote anything specific as to what would happen if the appellant received no "treatment", either in terms of risks if there were no treatment or outcomes if there were treatment. However he did write, "... should be under TO". In my view it was reasonably open to the tribunal to infer from that part of his notes that he was conscious of all the treatment criteria and believed that they were all satisfied. The tribunal was entitled to take into account the fact that Dr Giarraputo was a practising psychiatrist, and to assume that he was aware of the treatment criteria. The tribunal was entitled to take into account all the evidence it had as to the appellant's mental state for the purpose of determining how readily a psychiatrist might become satisfied that the appellant satisfied all the treatment criteria.
2. The thresholds for the satisfaction of the criteria in s 40(b) and (c) are fairly low. To be satisfied as to (b), a medical practitioner need not be satisfied of any risk to other persons, nor of any risk to the safety of the patient. It is sufficient if the practitioner is satisfied that, without treatment, the mental illness is likely to seriously harm the person's health, which of course includes the person's mental health.
3. Although s 40(c) uses the words "the treatment will be appropriate and effective", it is clear that the legislation is intended to apply to mentally ill individuals whose symptoms cannot be treated or ameliorated in any way. For the purposes of s 40(c) treatment will be "appropriate and effective" if it is treatment directed towards the management of the ill effects of mental illness, or even just the monitoring of a person's mental state: s 6(1)(b) and (d).
4. The tribunal had evidence from Dr Paech to the effect that, during the critical conversation on 14 April 2016, the appellant reiterated that she would not take medication voluntarily. Dr Giarraputo noted that she was "not willing to engage meaningfully, therapeutically". There was evidence that she had been prescribed medication for schizophrenia. In my view it was reasonably open for the tribunal to infer from the little that Dr Giarraputo had written that he was satisfied that the prescribed medication would be appropriate and effective in terms of alleviating the ill effects of mental illness, and that the appellant's mental health was likely to be seriously harmed without that medication.
5. For these reasons, I consider it was reasonably open to the tribunal to make a finding that Dr Giarraputo was satisfied that the appellant satisfied each of the treatment criteria listed in s 40. It follows that the tribunal did not err in law in making a finding to that effect in its reasons at [12].
6. I have no reason to make a finding that the evidence failed to establish that Dr Giarraputo was satisfied as to the treatment criteria prescribed by s 40(b) or (c). He may have taken a slapdash approach in his note making, but I consider it significant that he noted that the appellant was not willing to engage therapeutically, and that she should be under a treatment order.

1. The appellant's primary contentions are that the tribunal erred in law by making findings that were not reasonably open to it. The question whether there is any evidence of a particular fact is a question of law: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 355. As Jordan CJ said in The Australian Gas Light Co v The Valuer-General [1940] NSWStRp 9; (1940) 40 SR (NSW) 126 at 138, "... if the facts inferred ... from the evidence ... are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law." For the reasons stated above, I consider that the tribunal did not err in law in concluding that Dr Giarraputo had "assessed" the appellant, and done so "separately" from Dr Paech, nor in concluding that he had been satisfied that the appellant met all the treatment criteria.
2. For this appeal to succeed otherwise than on a question of law, the appellant would require leave pursuant to s 174(3) of the Act. Because I see no reason to disagree with the impugned findings of the tribunal, I will not grant the necessary leave.
3. The appeal is dismissed.