Sarah White v The Local Health Authority & Anor

The Defendants' Submissions and Consideration

The defendants' principal contention is that the Public Guardian, which has the powers available under the guardianship order in this case, has the statutory authority to make the decision of Ms White for her to be admitted as a voluntary patient to the facility under Mental Health Act, Chapter 2, and specifically s 7(1). The defendants submit that because Ms White has been admitted to the facility under s 7(1) that she is not an involuntary patient under Mental Health Act, Chapter 3, as Ms White contends.
The defendants' contentions raise two main issues for consideration. The first is whether the Public Guardian has the authority under the Guardianship Act and the Mental Health Act to make a decision to admit Ms White to the facility. The second question is whether that power has been validly exercised in this case on the evidence. These reasons deal with each of these questions in turn.
The Public Guardian has the statutory authority to make a decision for Ms White to admit her to the facility as a voluntary patient under Mental Health Act, Chapter 2. This conclusion flows from analysis of both the Mental Health Act and the Guardianship Act.
Mental Health Act, s 5 opens up a regime for admission to mental health facilities separate from Chapter 3 Involuntary Admission, by permitting admission to such a facility "as a voluntary patient whether or not the person is a mentally ill person or a mentally disordered person": s 5(3). Section 5(3) clearly contemplates that persons who are not mentally ill or mentally disordered may be admitted to a facility. Section 5(3) is an answer to any contention based on section 12 that mental health facilities declared under Chapter 5, Part 2 cannot be used for the admission of a "patient or other person" unless they are mentally ill or mentally disordered. The regime of Chapter 2 clearly exists for non-mentally ill and non-mentally disordered persons to continue in mental health facilities.
But only "a voluntary patient" may be admitted under Chapter 2. The Mental Health Act contains only a circular definition of "voluntary patient", as a person "admitted….under Chapter 2", or a person "who has been reclassified as a voluntary patient under this Act". The contrasting language of Mental Health Act, Chapters 2 and 3 reinforces the concept of voluntariness in ordinary usage, as a decision made with free will and without coercion. The Macquarie Dictionary defines "voluntary" in its primary meaning as (1)"done, made, brought about, undertaken etc…of one's own accord, or by free choice [for example]: a voluntary contribution" and (2) acting of one's own will or choice for example]: a voluntary substitute". Chapter 2, s 8(2) reinforces this, declaring the general liberty for a "voluntary patient" that such a patient may "discharge himself or herself from or leave a mental health facility at any time". In contrast Chapter 3 is couched throughout in language denying free choice or the patient acting of his or her own accord: "involuntarily admitted", "detained in…a mental health facility", or "detention of…the person" (ss 12 and 13). In the face of this statutory language it is not possible to maintain any contention that no-one other than mentally ill or mentally disordered persons can be admitted to a mental health facility.
But can the Public Guardian decide under the Guardianship Act, in place of the exercise of free will of a person under guardianship, to admit the person to a mental health facility under Chapter 2? The defendants contend this is the combined effect of the Mental Health Act and the Guardianship Act. In my view the defendants' contention as to this is correct. Mental Health Act, s 7 provides a comprehensive regime for the admission to and discharge from mental health facilities of persons under guardianship. The command of s 7(1) is that it is the guardian who makes the "request to an authorised medical officer" to be "admitted to a mental health facility as a voluntary patient". It is inherent in the structure of s 7(1) that although the guardian makes the "request", (and is thus at least assumed to be responsible for the relevant decision making to initiate the request) nevertheless, once carried through, the request will result in the admission of the person under guardianship "as a voluntary patient". Thus the legislation permits what would otherwise be a contradiction: that the admission of a person may yet be "voluntary" within Chapter 2, even though it did not follow from that person's free choice or own will but by the choice or will of the guardian.
Section 7 also protects the guardian's authority over the person under guardianship by commanding the person under guardianship and the persons in charge of the mental health facility not to admit the person "as a voluntary patient" over the guardian's objection "to the authorised medical officers". This provision is significant for an understanding of how s 7 works. The legislation contemplates a situation that if the person under guardianship is making a s 7(1) request for admission to the authorised medical officer of a mental health facility, the guardian may veto the request by communicating with the authorised medical officer.
The combined effect of s 7(1) and (2) is to allow the guardian to request the admission of a person under guardianship as a "voluntary" patient and to prevent a person under guardianship from being admitted as a voluntary patient against the guardian's wishes.
Similarly s 7(3) commands an authorised medical officer to accept a guardian's request for a voluntary patient discharge of a person under guardianship. The guardian has the power to request admission and end a period of admission as a voluntary patient of a person under guardianship.
But s 8(3) is at least consistent with the possibility that a person under guardianship may discharge himself or herself from a mental health facility without the prior approval of the guardian, provided notice of that discharge is given to the guardian. If that situation contradicts the guardian's decision, then the question will arise about the guardian's right to request admission again as a voluntary patient over the opposition of the person under guardianship.
The Mental Health Act is silent as the specific conflict when the person under guardianship wishes not to be admitted to the relevant mental health facility contrary to the wishes of the guardian. Section 7 does not expressly override the wishes of the person under guardianship in such circumstances, which are the present circumstances. The section is more concerned with the right of the guardian to intervene and deal with the mental health facility for the person under guardianship as a voluntary patient, rather than with overriding the wishes of the person.
It is not surprising that the Mental Health Act is silent on this question, because the issue is comprehensively dealt with under the regime of Guardianship Act, ss 21-21C. In my view the combined effect of these provisions allows the guardian, in this case the Public Guardian, to override the wishes of the person under guardianship, in this case Ms White. The guardian of a person the subject of a limited guardianship order, such as Ms White, "has the custody of the person to the exclusion of any other person, to such extent as the order provides": Guardianship Act, s 21(2)(a). And the guardian has such of the function of that person's person, to the exclusion of any other person, as the order provides: s 21(2)(b). A decision by a guardian to admit a person such as Ms White to a mental health facility under Mental Health Act, s 7(1) even against their will, is within the s 21(2) authority over their person, where as here, the guardian has control over accommodation.
Guardianship Act, s 21C effects the substitution of the guardian's will and decision making within the scope of the guardianship order for that of the person under guardianship. Thus even if the person under guardianship objects, "a decision made and action taken…by a guardian" has effect as if (a) the decision had been made…and action had been taken…by the person under guardianship, and as if that person had legal capacity". As the decision/action of the guardian on any given subject is taken to be the decision/action of the person under guardianship, the will and decision of the latter are wholly displaced by the guardian's decision/action. That gives a statutory warrant to overcome the conflicting will and the objections of the person under guardianship.
The Guardianship Act leaves little doubt that this displacement of the wishes of the person under guardianship can occur. The conflicting decision/action of the guardian can be enforced by "such measures as are specified in the [guardianship] order" to ensure "that the person under guardianship complies with the decision of the guardian" in the exercise of the guardian's functions: s 21A(1). And s 21B provides further practical support to enforcement of the guardian's decisions/actions, allowing a guardian, such as the Public Guardian here to sign documents such as a Mental Health Act, s 7(1) request to an authorised medical officer to be admitted to a mental health facility.
Draconian as this Guardianship Act regime may seem, for a person under guardianship it is ameliorated to a degree by the requirement for guardians to exercise their powers in accordance with the objects of the Guardianship Act set out in s 4, all of which involve to the extent possible giving effect to the wishes of the person under guardianship.
Moreover, the Guardianship Act grants wide powers of assessment and review to guardianship order under Part 3, Division 4, which could result in variation or revocation of the order if the Tribunal determined that the order was not operating in the best interests of the person under guardianship in accordance with the objects of the Act.
To pause in the reasoning for a moment, there can be no doubting the broad underlying principle of personal liberty which the writ of habeas corpus protects. It extends beyond imprisonment to cover other confinements and restraints on personal liberty not sanctioned by positive law; it is the duty of the Court to inquire into the legality of the restraints being imposed on the liberty of an applicant for the writ; there is always an initial presumption in favour of liberty; and because the liberty of the subject is at stake, strong, clear and cogent evidence and a high degree of probability is required: see Antunovic v Dawson (2010) 30 VR 355; [2010] VSC 377, where all the authorities underlying these principles have been comprehensively discussed.
But the next question is whether the Public Guardian has sought to have Ms White voluntarily admitted under Mental Health Act, s 7(1). Not surprisingly, the additional relevant events commence close to the expiry of the stay of the MHR Tribunal on 10 February. The short history of relevant events is the following.
On 9 February 2015, the day before the MHR Tribunal's order expired, Dr C, Director, Drug and Alcohol Mental Health Region telephoned Officer 2, the principal guardian within the Public Guardian, who has been the officer responsible for making guardianship decisions about Ms White since 19 November 2013. Officer 2 makes decisions about Ms White to give effect to the guardianship orders subsisting in relation to her in the exercise of the Public Guardian's functions for her.
In that telephone call Dr C expressed concern at the prospect of Ms White being discharged without suitable accommodation/support placement and proposed that she remain a patient at the facility in lieu of a potential rehabilitation placement at the nearby designated general hospital. Perhaps the best evidence of what Dr C said to Officer 2 is contained in Officer 2's file note at 2.57pm on 9 February which appears under the subject heading "Consent" for [Ms White] to remain in [the facility] until potential ..hospital admission: "[Dr C] requested consent for [Ms White] to remain at [the facility] under the Public Guardian's coercive accommodation function. [Dr C] advised that [the Local Health Authority] has indicated they are willing for [Ms White] remaining under the PG's accommodation function. Consent was given, with written confirmation to follow. [Dr C] said that the next task will be brokering [Ms White] entering [the general hospital] for rehabilitation. He advised that [the general hospital] have previously been resistant to this. Debate as to whether she's a core constituency. [Dr C] said that high level advocacy will occur and indicated that he believed there was a good chance of her being accepted for admission. A proposal will be forwarded to the PG when this occurs."
Officer 2 says the same day "I decided to consent to Ms White remaining an in-patient at [the facility] under the Public Guardian's coercive accommodation function, pending potential rehabilitation admission to [the general hospital]". The same day he wrote to Ms White notifying her of this decision.
His letter to Ms White on 9 February referred to the November 2012 guardianship order and informed Ms White that "the Public Guardian made a decision on 9/02/2015 under the Accommodation and authorised others function". In the same letter Officer 2 identified to Ms White what this was and the reasons for the decision in the following terms: "The decision Accommodation and authorise others - For [Ms White] to remain an impatient at [the facility], pending potential rehabilitation admission to [the general hospital]. Why we made this decision We received a proposal from Dr C, Director, Drug and Alcohol We made this decision because [Ms White] is due for discharge on the 10/2/2015 and no suitable discharge options have been identified. [Ms White] is deemed to be at serious risk should she be discharged without a suitable accommodation placement and support arrangements."
The decision making process seems to have been completed by communication which Officer 2 made with Dr A, a principal doctor at the facility in the following terms: "Dear Dr A, As you know the Public Guardian has decision making authority for [Ms White] in relation to her accommodation. This includes the authority to over ride Ms White's objections to placement. As per our discussion this morning. The Public Guardian consents to [Ms White] remaining at [the facility] pending a potential rehabilitation placement at [the general hospital]. I will forward a letter to this effect tomorrow. Regards, Officer 2"
This correspondence raises two questions: (1) was it a "request" within Mental Health Act, s 7(1); and (2) was it made to an "authorised medical officer". It is an agreed fact that Dr A is "an authorised medical officer" within the meaning of Mental Health Act, s 4(1). He is so authorised in the following way. Dr D is the clinical director and medical superintendent of the facility within Mental Health Act, s 4(1). There is no issue that he has been so nominated under s 111 and that he in turn has nominated Dr A as "authorised medical officer".
The Public Guardian relies upon the events of both 19 December 2014 and 9 February 2015 as constituting a "request" to an authorised medical officer under Mental Health Act, s 7(1). In my view the events of neither of these days qualifies as a s 7(1) request to an authorised medical officer. In my view s 7(1) operates under clearly assumed circumstances and does not authorise the mere production of paperwork that does not accord with what is in substance a "request" such that "a person…may be admitted" to a facility.
The events of 19 December do not answer the description of a "request" for admission required by s 7(1). On 19 December Ms White was already a voluntary in-patient in the facility. The ordinary and applicable meaning of the word "admit" is, according to the Macquarie Dictionary "(1) to allow to enter; grant or afford entrance to [for example] to admit a student into college (2) to give right or means of entrance to". It makes no sense to speak of "admitting" someone to a facility or a place in which they are not only already physically located but their presence there is already legally authorised. It is implicit in s 7 that the "request" must be for the relevant admission. The provision cannot work in my view if the person is already "admitted".
This is not just a matter of form. The submission of a s 7(1) request requires the authorised medical officer to whom it is addressed to make a decision on the basis that the person is not already in the facility and that the medical officer may, upon that assumption, decide to "refuse to admit a person to a mental health facility as a voluntary patient" on the basis that the medical officer "is not satisfied that the person is likely to benefit from care or treatment as a voluntary patient". The legislation places in the hands of the medical officer a capacity to refuse requests from persons outside the facility who are seeking admission. The defendants' contention in this case is that somehow s 7 requests can be made when the person is in the facility.
Moreover the 19 December form became stale by 10 February 2015. A s 7(1) "request" must, in my view, be a request current at the time that the person is sought to be admitted to the facility. Between 19 December and the present time the MHR Tribunal has discharged Ms White. In my view the 19 December communication failed to answer the description of a "request" (if it had otherwise already answered that description) once the MHR Tribunal had ordered Ms White's discharge. Once that had occurred a new request, related to a current admission, was required.
The communications of 9 February 2015 also do not qualify as a "request". What happened on 9 February 2015 is the very reverse of what Mental Health Act, ss 5 and 7 authorise. Any relevant request on 9 February actually came from Dr C. Even if it be assumed that Dr C was an "authorised medical officer" for the purposes of considering a request from the Public Guardian in my view Dr C did not receive such a request but instead asked the Public Guardian to consent to his request for Ms White, to an extent for convenience, to stay in the facility. In some circumstances that reversal of role may be justified, if a proper request under s 5 could be implied. But the problem with the communication on 9 February 2015 is that it was not capable of leading to Ms White's admission under s 5, because it did not put the relevant authorised medical officer in a position to decide to admit or refuse to admit Ms White after being satisfied that the admission would be likely to benefit her from care or treatment as a voluntary patient. It is unlikely, in my view, that such a decision could have been made until the earliest on 10 February when the Public Guardian was genuinely seeking readmission. The language of s 7 is wholly absent from the request and Dr C is seen for good reasons to be trying to solve a problem. But he was never put in the position where he could make a genuine decision to admit on the criteria set out in s 5(2) because of the way that the matter arose.
Ms White submitted that the Public Guardian had exercised the s 7 power for purposes extraneous to those which it had been conferred, relying upon Arthur Yates & Co Pty Ltd v The Vegetable Seeds Committee (1945) 72 CLR 37, 68-69, 77 and 84. But it is sufficient in my view to analyse this matter in terms of whether there has been any compliance with the provisions of Mental Health Act, Chapter 2. In my view the current situation is that Ms White is being detained in the facility without legal authority. As earlier indicated, the way s 12 operates is that unless a person is brought within Chapter 2, if they are not mentally ill or mentally disordered then the person cannot be "involuntarily…detained in or continue to be detained in" such a facility. In my view, in the absence of a request from the Public Guardian conforming with Mental Health Act, Chapter 2 Ms White is entitled to be discharged from the facility in accordance with the orders of the MHR Tribunal.
Various arguments were put as to the effect of s 8(2) and (3) of the Mental Health Act. It is not necessary to decide them, because there is already in place an order from the MHR Tribunal authorising her discharge. The authority for her discharge already exists. It need not be sought in s 8. Moreover, even if the Public Guardian attempted to make a decision on behalf of Ms White under s 8(2) to reverse her decision to discharge herself, it is doubtful that the Public Guardian's action under the guardianship order for Ms White's accommodation would be effective, because it would be inconsistent with the determination of the MHR Tribunal made in respect of Ms White on 27 January. Conduct of guardians inconsistent with determinations under the Mental Health Act is constrained by Guardianship Act, s 3C(3).
Some other matters should be mentioned in closing. There is no occasion to consider the Court's jurisdiction under Mental Health Act, s 166. The legal issues are made sufficiently clear under the habeas corpus application. One major purpose of s 166 is to allow the Court to determine for itself whether a person is not mentally ill or mentally disordered. It is not an issue in this case. Ms White is neither.
The defendants also argued that s 12 only applies to "involuntary patients" who are defined in s 4 as persons who are ordered to be detained in certain specific circumstances, such as for example persons receiving treatment under the Mental Health (Forensic Provisions) Act 1990: see Mental Health Act, s 84. But there are two answers to this argument. Firstly, the prohibition in s 12 is a general one applying to persons being "involuntarily admitted to or detained in" mental health facilities. It does not only operate in circumstances where there is someone called an "involuntary patient". As Ms White submits, the prohibition in s 12 is upon the use of facilities rather than limited to certain kinds of "involuntary patient". The other answer to this argument is that even if Ms White does not rely upon s 12, she still has the benefit of the MHR Tribunal order which requires her discharge, which is presently being prevented.

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