Wilson v Mental Health Review Board [2000] VSC 404

101. S.7 was removed from the 1986 Act to remove the stigma surrounding mental illness. With the removal of S.7 voluntary admission would have the same informal status within hospitals as other admissions. (Second Reading speech, 5/10/95 for Mental Health (Amendment) Bill).

104. It is important in interpreting the Act to note the objects of the Act specified in S.4(2): "It is the intention of Parliament that the provisions of this Act are to be interpreted and that every function, power, authority, authority, discretion, jurisdiction and duty conferred or imposed by this Act is to be exercised or performed so that -

(a) people with a mental disorder are given the best possible care and treatment appropriate to their needs in the lest possible restrictive environment and least possible intrusive manner consistent with the effective giving of that care and treatment; and

(b) in providing for the care and treatment of people with a mental disorder and the protection of members of the public any restriction upon the liberty of patients and other people with a mental disorder and any interference with their rights, privacy, dignity and self-respect are kept to the minimum necessary in the circumstances".

110. Because the Act regulates the apprehension, admission and detention of persons in an approved mental health service against their wishes, or understanding, and restricts their freedom in the community, the Act must be interpreted in favour of a person affected by the provisions of the Act. The Court should be constrained to interpret the Act in a way that least infringes upon the civil rights of a person because of the stigma surrounding mental illness.

113. The Act is complex legislation; it has undergone considerable amendment since it was enacted in 1986.

116. The Act is silent as to the status of a person upon the expiration of a CTO. I would have expected that, upon the expiry of an order which required a person to receive treatment for a mental illness whilst at large in the community, and becoming free of the restrictions of the order and able to remain at large in the community, that person would not be subject to the disadvantages of being an involuntary patient, unless, or until, the provisions of Part 3 of the Act were invoked again to apprehend, admit and detain the person in an approved mental health service. The status of an involuntary patient with, or without leave, is a restriction upon the liberty of a person and an interference with their rights, privacy, dignity and self-respect.

119. Not only is it curious that the Act does not expressly say what is the consequence for a person upon the expiration of a CTO, it is inexcusable that the applicant was not examined by an authorised psychiatrist before his CTO expired, in accordance with S.14(6), to ascertain whether he still satisfied the criteria in sub-section (1A). If he did, and the psychiatrist considered that a CTO was appropriate, he could have extended it for a further period. The omission to act before the CTO expired has had costly and protracted consequences for the parties.

122. I turn now to consider the submissions of Counsel for the two parties. Their submissions were made in writing and elaborated by oral argument and references to the Act and authorities.

125. When RW was admitted to an approved mental health service as an inpatient on 14 January 1999 and detained until 18 January 1999 he became an involuntary patient by virtue of paragraph (a) of the definition of `involuntary patient'. The procedure for admission and involuntary detention is set out in Ss 9 and 12 and need not be referred to.

128. On 18 January, when the authorised psychiatrist considered that RW satisfied the criteria specified in S14(1A) and that a CTO was appropriate, he made the order instead of confirming the admission of RW to an approved mental health service as an involuntary patient or continuing to detain him in an approved mental health service. By ss(3) RW was `deemed' to be an involuntary patient detained under S12 and the provisions of the Act, other than Sections 37, 40, 41, 42 and 43 applied accordingly.

131. The word `deemed' is used in legislation in two alternative ways. The first use has been described as the `factitious' sense, meaning `to judge', `to decree' or `to consider'. The second use has been described as the `fictitious' sense, to create a statutory fiction for the purposes of the Act or some part of the Act. The word `deemed' is used in the Act to attribute to a person a character which he does not in fact possess namely, that of an involuntary patient. The Parliament saw the need to judge a person subject to a CTO to have the character of an involuntary patient while subject to the order. This fictitious character applied to him only while he was subject to a CTO. Should an order be revoked before it expires, as happened on 14 January 1999 in the case of RW, and the person subject to the order be re-admitted to an approved mental health service, the status of involuntary patient is resumed or revived under S.9. But the person may still be deemed to be an involuntary patient who is absent from an approved mental health service without leave if the authorised psychiatrist revokes a CTO to which a person is subject pursuant to S.14(4A) pending the return of the person to an approved mental health service. That did not happen in July 1999.

See Hunter Douglas Aust Pty Ltd v Perma Blinds [1970] HCA 63; (1970) 122 CLR 49 @ 65-67; Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203 @ 208-209; City of Keilor v O'Donohue [1972] VicRp 23; 1972 VR 238 @ 245; Rowe v Hughes (1973) VR 60 @ 68.

135. In the context in which `deemed' is used in S.14 , I consider that the word is used in its `fictitious' sense. This interpretation was proposed by Mr Bingham who argued that the essence of a CTO is being at large in the community and not detained.

138. S14 of the Act is the operative section for making a CTO. It prescribes the criteria which must be satisfied (SS(1A)) and specifies matters in SS's (2) and (2A) that must be disclosed to the patient in an order. The authorised psychiatrist may revoke an order (SS(4)) whereupon the person subject to the order is "deemed to be an involuntary patient who is absent from an approved mental health service without leave" (SS(4A)(a). The authorised psychiatrist may extend a CTO for up to 12 months after examination (SS(6)). It is agreed by Counsel that a SS(6) examination and extension order must be conducted and made during the currency of a CTO.

141. S.14 speaks of revocation of a CTO by the authorised psychiatrist, it does not mention termination by the passage of time. Yet, time is an essential feature of a CTO. A CTO has a duration which must not exceed 12 months and, unless extended, has no force and effect after the expiry date. In these circumstances it is difficult for me to accept the respondent's submission that, upon the expiration of a CTO, the person previously subject to the order automatically becomes an involuntary patient who is absent from an approved mental health service without leave. This status is said to result from the scheme of the Act. I have difficulty accepting that the status of a person whose order is revoked pursuant to S14(4A) is the same as the status of a person whose order has simply expired.

144. Mr Bingham drew attention to the document signed by the psychiatrist on 7 July 1999 purporting to grant RW "leave of absence" for the period 25 June to 1 August 1999. As it was beyond the authority of the psychiatrist retrospectively to extend a CTO, it was also beyond his authority to grant RW leave of absence between 25 June and 7 July. By S.40 an authorised psychiatrist may allow an involuntary patient to be absent from an approved health service in which the involuntary patient is detained for such period and subject to any conditions as the psychiatrist considers appropriate and the period of absence may be extended or revoked. In my opinion the document signed on 7 July was a nullity.

147. Curiously, by S.42(1) an involuntary patient who remains absent from an approved mental health service for a continuous period of 12 months without leave of absence is automatically discharged as an involuntary patient. Subject to SS(3) an involuntary patient who has been on leave of absence for a continuous period of 12 months is automatically discharged as an involuntary patient. S.S(3) allows the chief psychiatrist or the authorised psychiatrist to apply to the Board for an order that the involuntary patient is not to be discharged.

150. The crux of the argument for RW is that from 26 June 1999, when the CTO expired, he was not a person admitted or detained in an approved mental health service under Division 2 of Part3 and was not deemed to be an involuntary patient under S.13 or 14. For the purposes of S14 he could only be deemed to be an involuntary patient until 25 June. Therefore, he could not be granted leave of absence on 7 July and he was not absent without leave because he did not require leave of absence.

153. Mr Bingham submitted that the Board only has jurisdiction to review the continued detention of an involuntary patient still subject to a CTO and that when a CTO expires the person is not detained and is not an involuntary patient.

156. A CTO can expire at the end of the period specified, or it can be revoked, or it can be extended. Revocation and extension must occur before the order expires. If the order is revoked, the Act provides that the person subject to the order is deemed to be an involuntary patient who is absent from an approved mental health service without leave and may be apprehended and returned to an approved mental health service. If the order is extended the Act provides that the person subject to the order s deemed to be an involuntary patient detained under S.12. S.14(4) also provides for discharge of the person as an involuntary patient, if the authorised psychiatrist is satisfied that the person subject to the order does not satisfy the criteria specified in S.8(1) or in S.14(1A).

159. Is there room for the proposition of the Department that when an order expires without revocation, or extension first occurring, or without the person subject to the order being discharged, the person resumes involuntary patient status? Without doubt, it is more convenient to the Mental Health Service to have the person's involuntary patient status continue when an order expires without revocation, extension, or discharge first occurring, but it is not convenient to the person who is at liberty in the community and is no longer bound by the terms of the order.

162. Mr Bingham submitted that previous admission to and detention in an approved mental health service should not dictate the status of a person when an order expires without revocation or extension first occurring. If a person resumes or acquires a status of involuntary patient on the day after the order expired, such a person is liable to apprehension at any time for the purpose of being returned to the approved mental health service (S.43). Does this achieve the objects of the Act specified in S4(2)(a) and (b)? The interpretation of the Act should avoid an invasion of the right to personal liberty. Harry v Mental Health Review Board (1994) 33 NSW LR 315.

165. Mrs Tate drew the court's attention to well known principles of statutory interpretation to ascertain and give effect to the intention of the Parliament. Mrs Tate contended that the court should not read words into a statute unless satisfied that:

(a) by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved, and

(b) it can ascertain with certainty how Parliament would have overcome the omission if its attention had been drawn to the defect.

171. Be that as it may, it cannot be gainsaid that Parliament did omit to deal expressly with the circumstance that arose in this case. There is a gap in the Act because Parliament did not enact what is to be the status of a person subject to a CTO upon its expiration. Did Parliament intend that the person should be subject to automatic detention or restriction of liberty or did it intend that any further restriction upon the liberty of the person or detention should be subject to new action initiated under Part 3 of the Act.

174. Mrs Tate submitted that the construction of the Act proffered by Mr Bingham has the consequence that the expiry of a CTO is a form of automatic discharge, something not provided by the act and requiring words to be read into the Act. However, Mrs Tate's argument would require words to be read into the Act to the effect that upon the expiry of a CTO the person acquires a status not expressly provided by the act.

177. The Act expressly provides for involuntary patient status in 7 statutory categories:

(i) a person detained pursuant to S.12.

(ii) a person detained pursuant to S.12A.

(iii) a person detained pursuant to S.12C.

(iv) a person detained pursuant to S.91 of the Sentencing Act 1991.

(v) A person detained pursuant to S.93(1)(d) of the Sentencing Act.

(vi) A person detained pursuant to S.90of the Sentencing Act.

(vii) A person detained pursuant to S.16(3)(a).

183. The Act expressly provides for `deemed' involuntary patient status in 3 statutory categories: S.13(2) and S.14(3) and (4A).

186. RW does not fit comfortably, or at all, into any of the statutory categories upon the expiry of his CTO on 25 June 1999 because he was not detained in the sense in which detained is used in the Act and he had ceased to be a deemed involuntary patient.

189. Consequently, to uphold Mrs Tate's proposition words would have to be read into the Act to create a further statutory category: "A person subject to a CTO upon expiry before revocation or extension of the Order is deemed to be detained as a involuntary patient until discharged by the authorised psychiatrist or the Board".

192. Words should not be read into the Act which interfere with the rights, dignity and self-respect of a person, unnecessarily. If RW was a person who satisfied the criteria specified in S.14(1A) on 25 June 1999, more diligence by the authorised psychiatrist or the Mental Health Service could have avoided the problem evident in the case before the court today.

195. It is not correct to say that if the interpretation of theAct proffered by Mr Bingham is accepted, it will mean that some mentally ill persons will fall by the wayside or slip through the safety net provided by the Act. Upon the expiration of a CTO some persons will cooperate and be treated voluntarily. Others may need to again be made involuntary patients. If care is taken, persons in need of further involuntary patient status will be identified before their CTO expires and appropriate steps taken to extend the CTO.

198. Mrs Tate submitted that although Parliament has not expressly provided for the consequences which flow from the expiry of a CTO it has dealt with the expiry of a CTO by implication. Broadly, Mrs Tate contended that a person admitted to an approved mental health service becomes an involuntary patient and retains that status until formally discharged by meeting the statutory requirements for automatic discharge. Expiry of a person's CTO has no effect upon the person's continuing status as an involuntary patient, Mrs Tate contended.

201. It is admission to an approved mental health service that makes a person an involuntary patient. See: In the Matter of XY. Full Court, 6/3/92 (unreported) Brooking, J. at page 1. But, if the authorised psychiatrist considers that a CTO is appropriate, the person is released subject to the order and becomes at large in the community. If Mrs Tate's proposition is correct, and the person retains the status of involuntary patient until discharged, why did the legislature need to enact S.14(3)(a)? A CTO does not confer involuntary patient status upon a person without S.14(3)(a). A person who is not subject to a CTO is not deemed to be an involuntary patient detained under S.12. When a CTO expires at the end of its specified duration and is not renewed before expiry, a person subject to the CTO can no longer be deemed to be an involuntary patient. Why should the Act be construed to re-impose the status of involuntary patient upon a person who is not in fact admitted to and detained in an approved mental health service? The person may, or may not, satisfy the criteria specified in S.14(1A) at the expiration of a CTO.

204. The construction of the Act sought by Mrs Tate on behalf of the Department of Human Services imposes a restriction upon the liberty of people with a mental disorder which will be unnecessary if, before the expiration of a CTO, the authorised psychiatrist examines the person to ascertain whether the person still satisfies the criteria specified in S.14(1A).

207. Mrs Tate submitted that the argument urged by Mr Bingham produces an anomolous consequence in conflict with the purposes of the Act. I do not accept this is so. An admitted person becomes an involuntary patient and retains that status until discharged from being an involuntary patient pursuant to S.12(2)(a), or S.12C(2), or until made subject to a CTO and is `deemed' to be an involuntary patient detained under S12. When the person is no longer a `deemed' involuntary patient and is at large in the community, I do not regard it as anomolous that such a person does not ipso facto become an involuntary patient again. If it is anomolous Parliament can remedy the position by amendment of the Act.

210. On the date when the authorised psychiatrist initially made a CTO he did so instead of confirming the admission of RW to an approved mental health service as an involuntary patient or continuing to detain the person in an approved mental health service.

213. The involuntary patient status of RW ended on 18 January 1999 with the making of the order and was replaced by a `deemed' involuntary patient status which ended when RW was no longer subject to the order, in my opinion. When the `deemed' involuntary patient ended, an involuntary patient status by admission to an approved mental health service under Division 2 of Part 3 was not automatically revived. Further admission to an approved mental health service was required to bring RW within one of the 7 statutory categories.

216. Mrs Tate comprehensively examined the scheme of the Act and submitted an interpretation of the Act which would avoid the consequence of a person such as RW falling outside the umbrella of care and treatment and Board review without formal discharge. I found her analysis of the Act most helpful to my understanding of the act.

219. I want to make it quite clear that I make no findings whether RW satisfied the criteria in S.8(I) or S.14(1A) on 25 June 1999. He was seen by the supervising psychiatrist, not the authorised psychiatrist, on that date and no opinion was formed whether RW still satisfied the relevant criteria.

222. As I have formed a clear view as to the status of RW on 26 June 1999 which is consistent with the advice he was given on 29 June: that as his CTO had expired he was a voluntary patient of the service and should continue to attend for service, I do not propose to detail all of the submissions made by Mr Bingham for RW and Mrs Tate on behalf of the Secretary to the Department. They are documented and available, if required to an appellate court.

225. I find that the Tribunal erred in law in its determination that the Board had jurisdiction on 23 July 1999.

228. In answer to the questions of law raised on the appeal I say:

(a) Upon the making of a Community Treatment Order the person subject to the order is deemed to be an involuntary patient detained under Section 12 while subject to the order.

(b) It is inappropriate to answer this part of the distinction between two classes of persons was incorrect.

Question 2. No

Question 3. It is unnecessary to answer question 3 in the form in which it is drafted.

Question 4. The Tribunal had no jurisdiction to determine the question whether "the continued detention of RW as an involuntary patient is necessary" because at the relevant time RW was no longer an involuntary patient as defined in S.3 of the Act.

Question 5. In the circumstances it is unnecessary to answer this question.

235. Pursuant to S.148(7) of the Victorian Civil and Administrative Tribunal Act the court orders that the order of the Tribunal: "The decision of the Mental Health Review Board that it had jurisdiction (under S30(I)(a) of the Act to review the continued detention of RW is affirmed," be set aside and in lieu an order is made that the Board did not have jurisdiction to conduct a review of RW on 23 July 1999.

238. I shall reserve the question as to whether further orders are required and the question of costs.