Solicitors:
In person (Plaintiff)
Crown Solicitor's Office (Defendant)
File Number(s): 2018/233585
[2]
Judgment
By Summons filed 30 July 2018, the plaintiff seeks an order under s 166 of the Mental Health Act 2007 (NSW) against the Northern Sydney Local Health District that she be immediately discharged from Royal North Shore Hospital where she is currently detained as an involuntary patient following her certification as a mentally ill person under s 19 of the Mental Health Act on 18 July 2018. Section 19 provides that a person may be taken to and detained in a declared mental health facility pursuant to a certificate in accordance with Part 1 of Schedule 1 to the Act where that certificate is issued by an authorised medical officer after examination of the person in accordance with s 27(1)(a) of the Act.
The certificate may only be given if a medical practitioner has personally examined or observed the person's condition immediately or shortly before completing the certificate, and where the medical practitioner (or accredited person) is of the opinion that the person is a mentally ill or mentally disordered person and where the medical practitioner (or accredited person) is satisfied that no other appropriate means for dealing with the person are available, such that involuntary admission and detention in a declared mental health facility is required.
On 18 July 2018 Dr David Philp, associated with the Royal North Shore Hospital, attended the plaintiff's home. A document relating to that attendance was tendered in the proceedings as Exhibit B. An elaborated account of his attendance is recorded in summary form on the Schedule 1 which was signed and dated by him and also exhibited. Dr Philp documented his views as follows:
Strong provisional diagnosis of paranoid delusions as a feature of a delusional disorder of schizophrenia (most likely with harms to reputation and neighbours).
He determined that a full psychiatric assessment was required. He gained that impression following his attendance at the plaintiff's home where the following was noted:
1. the plaintiff refused him entry to her home;
2. attempts to engage with her through the doorway were unsuccessful;
3. she expressed no confidence that he was a medical practitioner, despite him identifying himself as such;
4. the plaintiff telephoned police and upon the attendance of a police officer ten minutes later, the plaintiff persisted in refusing Dr Philp entry to discuss matters with her despite the police officer verifying Dr Philp's identity as a medical practitioner, and despite Dr Philp's making clear, in the presence of the officer, the concerns with her mental health raised with him by members of the community;
5. the plaintiff requested that she be permitted to take photographs of Dr Philp's which he refused, and she insisted that all communications be in writing.
In his elaborated report, he described the plaintiff as "well dressed and groomed"; her effect as "rigid", and her thought "not clearly disordered".
He determined that she be detained under the Mental Health Act on the basis of what he described as "clear evidence of a paranoid psychosis" resulting in severe harm to her reputation and to patients of a radiology practice in the building and the risk of ongoing harm to those responsible for the supervision and maintenance of the premises. He also reported as follows:
Given we have not been able to engage her despite multiple attempts on an outpatient basis, and that she refused more complete psychiatric assessment, no less restrictive form of care was available.
In the presence of police and the plaintiff's children, Dr Philp advised her that there were concerns for the plaintiff's mental health and that she was being taken to hospital for that reason. Her family were told they would be informed of her progress and were invited to contact the hospital directly.
The plaintiff presented no physical resistance to her detention and transport to Royal North Shore Hospital emergency department where she was triaged.
The clinical report, in the form of the Form 1 attached to the Schedule, was completed by Dr Shane Woods on 18 July 2018 following the plaintiff's admission.
After noting the plaintiff's behaviour as reported by Dr Philp, Dr Woods made his own observations as follows:
Paranoid ideations relating to conspiracies involving her strata management group … and a radiology practice at the base of her building. Believes it is not a real radiology practice. Believes actors were hired to act as patients and staff. Appears irritable, requesting adamantly to be allowed to leave hospital.
Dr Woods formed the opinion that the plaintiff was a mentally ill person requiring involuntary admission. A "mentally ill person" is defined in s 14 of the Act as a person suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary for the person's protection from self-harm or the protection of others from harm. Mental illness is in turn defined in s 4 of the Act to include a condition that temporarily or permanently impairs the mental functioning of a person, being characterised by the presence of any one or more of the following symptoms: (a) delusions, (b) hallucinations, (c) serious disorder of though form, (d) a serious disturbance of mood, (e) sustained or repeated irrational behaviour indicting the presence of any one or more of those symptoms in (a) to (d).
Pursuant to the provisions of s 44 of the Mental Health Act, on 25 July 2018 the plaintiff was brought before the Mental Health Review Tribunal. On that date the proceedings were adjourned to 1 August 2018, and on that date it was determined, pursuant to s 35 of the Act, that the plaintiff was a mentally ill person who was to be detained in, or admitted and detained in, the Cummins Unit of the Royal North Shore Hospital for further observation or treatment or both, as an involuntary patient until her discharge on a date no later than 29 August 2018.
The Tribunal members noted that the plaintiff was experiencing paranoid and persecutory delusions which, given the severity of her symptoms and her inability to accept the diagnosis or the need for treatment, and where the associated risk of serious harm was present, satisfied them that there was no less restrictive opinion other than an IPO (Involuntary Patient Order).
The plaintiff has not sought to exercise her rights of appeal from the Tribunal's decision under Chapter 7 of the Mental Health Act.
The plaintiff has limited the relief she seeks to the discrete and limited jurisdiction in this Court in s 166(2) of the Act. Section 166 provides as follows:
(1) The Court must order the medical superintendent of a mental health facility to bring a person before the Court for examination at a time specified in the order if the Court receives information on oath or has reason or cause to suspect:
(a) that the person is not a mentally ill person or a mentally disordered person and is detained in the facility, or
(b) that the person is a mentally ill person or a mentally disordered person detained in the facility and that other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person, or
(c) that the person is a forensic patient or correctional patient who is wrongly detained in the facility.
(2) The Court must order that a person (other than a forensic patient or correctional patient) examined under this section be immediately discharged from the mental health facility in which the person is detained if, on examination, the medical superintendent is unable to prove on the balance of probabilities:
(a) that the person is a mentally ill person or a mentally disordered person, or
(b) if the person is a mentally ill person or a mentally disordered person, that no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person.
The Summons was listed before me as the Duty Judge for hearing on 10 August 2018. On that occasion the plaintiff appeared on her own behalf with Mr Hutchings of counsel assisting the Court in the role of amicus curiae, with her consent. Mr Woods of counsel appeared on behalf of the Northern Sydney Local Health District. On that occasion, with Mr Hutchings assisting the plaintiff, a challenge was mounted to the validity of the process which resulted in her involuntary detention on 18 July 2018. That challenge was mounted on two bases. The first concerned whether the "assessment" undertaken by Dr Philp satisfied the requirements in s 19 of the Act for the determination of her status as a mentally ill person and the related determination as to whether her involuntary admission to a mental health facility and her detention in that facility was necessary. In the plaintiff's submission, the only "assessment" of her by Dr Philp was in circumstances where she refused to open the door or engage with him, and where, she contends, no questions were asked of her about her mental health or her health generally. In her submission, her refusal to talk to a person who was "a stranger" to her, by insisting that he communicate with her in writing by leaving a calling card under her door, was entirely rational behaviour and not evidence of any disordered though or delusional attitude. She also complains about the source of the undisclosed identity of people she describes as "informants" and, in that sense, the reliability of what Dr Philp reported as her "harassing multiple people around the building" intermittently, because of her belief in the operations of a fraudulent radiology clinic, including her harassment of the building manager. She regarded the people who provided that information as not credible informants and who, being in dispute with her, are likely to have complained about her unfairly and with bias.
I am satisfied on the evidence before me that Dr Philp made such enquiry and assessment as was reasonable having regard to the circumstances generally of the plaintiff's presentation and the history preceding his attendance, in order to found his ultimate opinion that the plaintiff met the definition of a mentally ill person for the purposes of s 19 of the Act, and for the related purpose of making a judgment that reasonable grounds presented for his belief that care, treatment and control was necessary for her own protection and/or the protection of others from serious harm.
The second basis upon which the plaintiff challenged the validity of the process resulting in her involuntary detention was what was said to be an absence of current registration details associated with Dr Shane Woods as the medical practitioner who signed the Form 1. As I understand it, the plaintiff contends that Dr Shane Woods is a medical practitioner registered in Dubbo and therefore a different person from the person who signed the Form 1.
The defendant relied upon an affidavit of Sasha Jane Lowes who attached the results of an online search undertaken by her with the Australian Health Practitioner Regulation Agency; a searchable register of health practitioners. Dr Shane William Woods' registration details, downloaded from that register, cite the suburb of Dubbo as his principle place of practice. Dr Woods is, nonetheless, a registered medical practitioner, being afforded a registration number effective from 1 January 2013.
Dr Drew, in her capacity as the Medical Superintendent and Clinical Director of the North Shore Ryde Mental Health Service gave evidence on this issue in the hearing. She confirmed that Dr Shane Woods currently holds the post of psychiatric registrar at North Shore Ryde Mental Health Service in his capacity as a medical practitioner training in psychiatry and that he had previously practised in Dubbo. I also note the obligation of a medical practitioner to renew their registration and update their professional postings and place of work in September of each year and that Dr Woods' registration has not been updated for that reason.
I accept Dr Drew's evidence and the evidence of Sasha Lowes. I am completely satisfied that Dr Shane Woods was an appropriately qualified person as at 18 July 2018 and that in that capacity he signed the clinical report (the Form 1) attached to Schedule 1.
The plaintiff's claim that her detention was invalid on one or other of the stated bases is rejected.
When the parties were before me on the first return date of the Summons I raised with them my concerns as to whether the relief the plaintiff sought under s 166(1) of the Act for "an examination" had been properly activated by the filing of the Summons and the supporting affidavit. My concerns were raised in circumstances where I did not understand that the Court had made any order for the Medical Superintendent of North Shore Ryde Mental Health Service to bring the plaintiff before the Court for examination, or that the Court had received evidence on oath or otherwise which might have raised a cause or suspicion, either that the plaintiff was not mentally ill or, if mentally ill, that she should be detained in a facility of a less restrictive kind.
Before there was the occasion to hear full argument on that question, the parties resolved, by agreement, not to seek either the interim relief or final relief under the Summons on the understanding that the defendant would, through the Medical Superintendent and her delegates, facilitate the plaintiff's attendance upon an independent psychiatrist of her choice in order that an assessment might be made of her mental health and consideration given, in an independent psychiatric assessment, to either confirming or disagreeing with the diagnosis reached by Dr Drew as the Medical Superintendent of the Hospital.
In a report tendered as Exhibit C in the proceedings, Dr Drew diagnosed the plaintiff as suffering from "a delusion disorder with schizophrenia contraindicated". In Dr Drew's assessment, there was no evidence of hallucination or thought disorder and no perceptible disturbances evident. She also noted the appearance of intact cognition. That diagnosis followed a comprehensive 90 minute assessment undertaken in response to the plaintiff seeking the intervention of this Court. I will return to consider the contents of that report in a moment.
At the conclusion of the adjourned hearing on 10 August 2018, counsel for the defendant gave the following undertakings:
1. Save for the circumstance set out in 2, the defendant undertakes to not administer psychiatric medication to the plaintiff if she resists that administration.
2. The defendant is permitted to administer psychiatric medication in an emergency, for example if there is an acute clinical need.
On 14 August 2018 at 3:45pm, the plaintiff forwarded an email directly to my Associate expressed in the following terms:
Further to the hearing on 10 August 2018, attached please find two doctors' reports stating I am not suffering from any mental illness and I am experiencing stress from being scheduled involuntarily.
Accordingly, please grant the final relief claimed in the summons.
I propose the matter to be determined on the paper to avoid further delay and damages.
That email was copied to the solicitor for the defendant who also asked for the matter to be relisted on short notice in order that the matter proceed to a final hearing without delay.
On 15 August 2018 I accommodated the parties' request to re-list the matter and proceeded to a final hearing of the Summons.
Despite ongoing misgivings as to whether the jurisdiction in s 166 of the Act had been properly invoked at all, with the consent of the parties I approached the question of final relief on the basis that the plaintiff was before me "for examination" in accordance with s 166(1) and, that being the case, it was for the defendant to discharge the onus under s 166(2), on the balance of probabilities, that the plaintiff is a mentally ill person and that no care of a less restrictive kind, consistent with safe and effective care, is appropriate and reasonably available to her. In the event that the defendant failed to discharge that onus, it was accepted that the Court was obliged to order the plaintiff's immediate discharge.
It is in that context that Dr Drew's comprehensive assessment of the plaintiff is of particular probative force. In summary, as her report made clear, she spoke with the plaintiff at length, inviting her to recount the circumstances preceding her detention, and what she understood or believed was the basis for the expressed concerns of others about her behaviour. As Dr Drew made clear, and repeatedly, the plaintiff was careful to express her thoughts and concerns about the behaviour of others in the building, in particular the operation of the radiology clinic, on the basis that her ideas were "speculation only", and that she appreciated the need to substantiate her beliefs with evidence. As Dr Drew reported, the plaintiff felt strongly that it was not possible for "the health system or the courts" to assess her mental health without them determining whether or not the radiology clinic was "in fact real".
Although Dr Drew noted that the plaintiff's behaviour was appropriate to the interview, with no signs of agitation or psychomotor responses, and that her thought was normal, she went on to say "the content [of her thought] revealed the presence of a substantial complex delusional system that appears to be dominating many aspects of her life and resulting in her having numerous interactions, including legal consequences with affected parties".
Dr Drew went on to report that the plaintiff was concerned to ensure that she understood that her beliefs were "speculative", although she did agree that she had been acting on the basis that her beliefs were real, while continuing to state her opinion that for a finding that she was delusional to be made, she considered it necessary that the radiology clinic was actually proved to be a legitimate commercial enterprise operating within appropriate regulatory requirements.
In the result, in Dr Drew's opinion, without treatment multiple risks of harm presented such that the plaintiff's continued detention at Royal North Shore Hospital was the appropriate environment in which that treatment should be provided. Dr Drew noted that the plaintiff denied that she has a mental illness, consistently asserted a belief that she did not need treatment, and did not wish to receive treatment.
I consider Dr Drew's report as overwhelmingly satisfying the onus on the defendant under s 166(2)(a) of the Act.
The plaintiff tendered a psychology report from Ms Mei Tze Ling, a registered psychologist working from a practice in Campsie (being one of two reports forwarded to Chambers on the basis of which the plaintiff asked for the Summons to be heard and determined "on the papers"). That letter was relied upon by the plaintiff in the hearing as "clearing her of mental illness". The report does not have that effect. In its terms, it confirms the plaintiff's attendance on 14 August 2018 where psychometric testing was administered in accordance with the DASS Inventory which measures depression, anxiety and stress against a scaled numeric indicator of mild to extremely severe. The fact that the plaintiff registered within the normal range against depression, anxiety and stress as psychometric indicators does nothing to inform the issue of mental illness for the purposes of the scheme provided for in the Mental Health Act.
In all the circumstances, I am also satisfied that the defendant has discharged the onus of establishing that no other care of a less restrictive kind is consistent with the safe and effective care of the plaintiff; care which is, in my view, both appropriate and reasonably available within the facility in which she is currently detained.
[3]
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Decision last updated: 16 August 2018