HIS HONOUR: The Plaintiff, ZLF, is a person under legal incapacity within the meaning of s 3 of the Civil Procedure Act 2005 (NSW), being an involuntary patient as defined in the Mental Health Act 2007 (NSW). There is no dispute that she has been diagnosed with chronic treatment resistant schizophrenia, from which she has suffered for many years, or that she has had numerous periods of hospitalisation due to her psychiatric conditions. The form of schizophrenia from which she suffers, does not readily respond to treatment by courses of oral antipsychotic medication, and, in the past, she has not been compliant in taking that medication. She is currently an inpatient being treated in a psychiatric unit in a hospital conducted by the Defendant.
Section 162 of the Mental Health Act, which prohibits publication or broadcasting of the name of any person to whom a matter before the Tribunal relates, whether before, or after, the hearing before the Tribunal is completed, leads to pseudonyms being used in this judgment to maintain the anonymity of the Plaintiff and her father, who, as will be read, has appeared on her behalf in these proceedings. (A reference to the name of a person includes a reference to any information or material that identifies the person, or is likely to lead the identification of the person.)
Although the Court's computerised record system identifies the Defendant as "Campbelltown Mental Health Service", the appropriate Defendant is, in fact, South Western Sydney Local Health District. In the events that have happened, nothing turns on this and when orders are entered, the Court record will be amended accordingly.
On Sunday, 4 August 2019, on the oral application made by KRF, the father of ZLF, Lindsay J granted an urgent, ex parte, interlocutory injunction, to restrain the Defendant from administering certain electroconvulsive therapy ("ECT") treatment to ZLF at the psychiatric unit. Today is the return date of that injunction. I shall return to the circumstances which prompted Lindsay J to make the orders shortly.
At the hearing today, there was no appearance by ZLF. The Court was informed that her treating doctor had not approved her leave to attend the hearing. However, as he had before Lindsay J, KRF appeared on behalf of the Plaintiff, and he said all that he could in support of the application.
The Defendant was represented by the Crown Solicitor, who instructed Mr D Birch of counsel. The Court conducted the hearing to determine whether the interlocutory injunction should continue.
As Lindsay J noted, it appears that ZLF may wish to appeal the decision of the Mental Health Tribunal to which reference will be made. There is no doubt that s 163 of the Mental Health Act permits an appeal by a person to the Supreme Court against a determination of that Tribunal made with respect to the person. By virtue of s 164(2), an appeal is by way of a new hearing. ZLF has not yet brought any appeal from the Mental Health Tribunal's decision. Presumably, to ensure that any appeal would not be futile, KRF wished the injunction, granted by Lindsay J, to continue until an appeal can be filed, heard and determined.
(KRF stated that ZLF "wants to stop the ECT altogether because in the last 6 months she has had three lots of 12 ECT and I think that is too much": Tcpt, 6 August 2019, p 5(48-50).
At the outset, it is important to acknowledge, as did those present at the hearing, that the Court's ultimate concern, today, is the best interests and welfare of ZLF since her medical treatment is in issue. I am indebted to KRF, and also to counsel for the Defendant and his instructing solicitor, for the efficient way that they have presented the case in response to the urgency.
[3]
Background
This is not the first occasion that proceedings involving ZLF have been brought in this Court and elsewhere. There are reported decisions, made in regard to proceedings that have been brought in this Court, and in the Mental Health Review Tribunal. The decisions, in this Court, include A Duty List Plaintiff v A Local Mental Health Service [2018] NSWSC 96 (Slattery J); SMF v South Western Sydney Local Health District [2018] NSWSC 303 (Lindsay J); and A Duty List Plaintiff v A Local Mental Health Service (No. 2) [2019] NSWSC 872 (Slattery J).
The decisions elsewhere include ZLE v ZLF [2019] NSWCATAP 183, which was an appeal from a decision of the Guardianship Division of the New South Wales Civil and Administrative Tribunal, made on 1 November 2018, in which the Tribunal continued the appointment of a guardian for ZLF, and appointed the Public Guardian as her sole guardian. KRF had appealed the Tribunal's orders in that regard.
[4]
The Proceedings
The circumstances giving rise to the application for the injunction, so far as can be gleaned from the available evidence, arose in the following circumstances. I have taken what follows from a document tendered and marked Ex. A, identified as a "Hearing Application Form", the original of which had been filed with the Mental Health Review Tribunal on or about 26 July 2019.
The application before the Mental Health Review Tribunal was described as an "administration inquiry in circumstances identified as ECT Administration Inquiry - invol patient sec 94(2)". The purpose of the inquiry was said to be:
"to consider the application by the authorised medical officer under s 94(2) [Mental Health Act 2007 (NSW)] for an administration inquiry concerning an involuntary patient. The Tribunal must determine whether the parties can or cannot give informed consent and, if the patient can, whether the patient has refused to consent and has neither refused or consented to ECT and if not whether ECT is reasonable and proper, necessary or desirable, under the Act."
(The form of inquiry is one made under s 94(2) of the Mental Health Act. Pursuant to s 95 of the Mental Health Act, the Tribunal must hold an ECT inquiry about a person as soon as practicable after an application is made to it.)
The Tribunal found that ZLF was a person incapable of giving informed consent to the administration of electroconvulsive therapy ("ECT") and concluded, in accordance with s 96(3)(b)(ii) of the Mental Health Act, following a determination, "that ECT is a reasonable and proper treatment and is necessary, or desirable, for the safety or welfare of the person or patient". The order made was that treatment of ZLF was to be completed, on or before 2 September 2019, and to involve no more than 12 treatments.
The "Reasons of Members for Decision" were stated:
"(1) The Tribunal is satisfied that [ZLF] is not able to consent to treatment as she is unable to weigh up the risks and benefits of the treatment because of her thought disorder.
(2) [ZLF] has not responded effectively to pharmacotherapy. ECT is a reasonable & proper treatment for a person with Catatonic symptoms. [ZLF] has previously improved after ECT.
(3) ECT is necessary for [ZLF]'s welfare. [ZLF] has been in hospital for 300 days & has not had sustained recovery. [ZLF] masks remaining unwell and experiencing loss of life skills.
(4) Authorise up to 12 treatments to be completed by time of next review 2/9/19."
[5]
The Orders made by Lindsay J
As stated earlier, the application was made by KRF on behalf of ZLF on Sunday 4 August 2019. After a hearing, Lindsay J made the following orders:
"…
2. NOTE that the plaintiff (by her father, [KRF], acting as her agent, not as a tutor) applies to the court, orally and ex parte, for an injunction to restrain the defendant (the Campbelltown Mental Health Service) from administering Electroconvulsive Therapy treatment to her, originally scheduled for 8 am tomorrow (5 August 2019) but (the defendant, by TBl, Nurse In Charge, Afternoon Shift, at the … Mental Health Unit, advised the Court by telephone) cancelled for tomorrow.
…
4. NOTE that plaintiff's application is made:
a. invoking the parens patriae jurisdiction of the Court; and
b. further and alternatively, in aid of an appeal (pursuant to sections 163 - 164 of the Mental Health Act 2007 and rule 50.3 of the Uniform Civil Procedure Rules 2005 NSW) from the determination made by the Mental Health Review Tribunal under section 94(2) of the Mental Health Act on 26 July 2009.
…
8. ORDER, subject to further order, that any requirement that the plaintiff be represented by a tutor in these proceedings be dispensed with.
9. Upon the plaintiff (by her father as her agent) giving to the court an undertaking to pay any filing fees referrable to the commencement of these proceedings (if not in due course waived by the Court) order that:
a. the plaintiff's application for an ex parte injunction be entertained notwithstanding that it is made orally, without the filing of a summons.
b. ORDER that plaintiff file and serve a summons in aid of the relief she claims in these proceedings no later than 6 August 2019 or such other time as the court may appoint.
10. RESERVE to the plaintiff liberty to apply for: (a) an order that any filing fees associated with the commencement of these proceedings be dispensed with; and (b) further or alternatively, a direction that any filing fees payable by her be paid out of her protected estate.
…
13. NOTE that the father of the plaintiff, as her agent but without authority or instructions to give such an undertaking, declined to give the usual undertaking as to damages in support of her application for ex parte injunctive relief today (4 August 2019).
14. ORDER , subject to further order, that any requirement for the usual undertaking as to the damages in support of the ex parte injunction relief by these orders granted be dispensed with , reserving to the defendant such, if any, entitlement it may have to apply for such relief to be discharged in the absence of an undertaking as to damages.
15. ORDER, subject to further order, that the defendant by itself, its servants and agents be restrained up to and including 6 August 2019, from administering to the plaintiff any form of Electroconvulsive Therapy without the prior leave of the Court or the written consent of the plaintiff and her father.
16. ORDER that these proceedings be listed before the Duty Judge (Hallen J), in Court number 2 in the Hospital Road Court Complex, at 10 am on 6 August 2019.
…
18. RESERVE to the parties, and any interested person, liberty to apply to the Duty Judge on two hours' notice."
[6]
The Hearing for the continuation of the injunction
At the hearing, KRF again appeared on behalf of ZLF. In view of the order in Paragraph 8 of the orders made by Lindsay J, compliance with Uniform Civil Procedure Rules 2005 (NSW) r 7.14, pursuant to s 14 of the Civil Procedure Act 2005 (NSW) was not required.
Despite his Honour's order in Paragraph 9(b), KRF informed the Court that no Summons had yet been filed. He stated that ZLF was seeking legal aid. The extent of the application for legal aid was that she had telephoned to obtain assistance before 10:00 a.m. today and had been told to call back after 10:00 a.m. this morning.
KRF confirmed that he did not have any evidence, other than a copy report, apparently printed on 2 February 2018, from Dr L A, a "trainee specialist", being a "Progress Note". When I enquired of KRF whether Dr A was, currently, the ZLF's treating doctor, he said that she was not, and, indeed, had not been ZLF's treating doctor, for over 12 months.
Without objection, I marked the report as Ex. B. It provided:
"Progress Note
Plan
complex patient has been in hospital most of this year.
I formed an opinion based on my previous involvement in patient care that patient is highly non compliant with treatment and is malingering (not that she is faking all symptoms but she is faking severity of those and impact of those on her daily activity) and patient is very manipulative: why she is doing it, what is her aim, difficult to answer at this stage because she has been doing this for so long and has been able to manipulate well many treatment terms at different settings;
plan is to continue care for her under MHA;
patient has been presenting to ED on multiple occasions, seeking admission; when she was asked to wait because there are no available beds, she would specifically cause significant disturbance in ED for only one purpose to get bed in isolation room because she is not happy [to] sit and wait on chair;
patient while presenting to ED is checking who from MH team is covering ED and her behavior [sic] depends on her finding; she is assessing possibilities to manipulate.
I have on many occasions offered her admission on her presentation to ED and asked her to wait in one of waiting chairs; within few hours she would request discharge home; after discussing all with father we would discharge her home; it was not recommended her to come to the ward because there is high resistance from her to be discharged home, this patient costing tax payers lots of $$$; if she is psychotic she would need to be treated vigorously and if she is developing side effects there are many ways to manage those, however her mental state is most important."
Whilst I admitted the copy report into evidence, it is difficult to see its relevance, other than as background information relating to ZLF, bearing in mind the concession made by KRF as to when it was that Dr A last treated her.
The Defendant, in view of the urgency of the hearing, did not have an opportunity to obtain an affidavit from ZLF's current treating psychiatrist, Dr S Y. However, Dr Y was available to give evidence, by telephone, which, in view of the urgency, seemed to be an appropriate way to proceed, and he did so.
Dr Y's evidence revealed that he has extensive experience as a psychiatrist; that he has, for a number of years, been associated with ZLF as one of her treating doctors; and that he is currently her treating psychiatrist, and has been involved in her care since she has been undergoing ECT treatment. He gave evidence that earlier in the year (in June 2019), the Mental Health Review Tribunal had ordered that twelve treatments of ECT be administered to ZLF, which had, in fact, been completed. (There may have been a similar order made in late 2018 or earlier in 2019.)
His evidence also revealed, in relation to the recent order of the Mental Health Tribunal, that 3 of the 12 treatments had already been given. (Thus, the decision that needed to be made was whether to continue the injunction which would prevent a further 9 treatments occurring.)
Dr Y stated that during the period ZLF had not had ECT treatment, he had observed deterioration in her mental state. He set out, in some detail, examples of that deterioration which included that her self-care was extremely poor, that she was responding to auditory hallucinations (although ZLF denied hearing voices), that she was potentially putting herself at risk from other patients, and that her insight was very poor, she saying that she does not need treatment.
I have not laboured, in these reasons, to set out all of his evidence, but in very broad summary, Dr Y opined that, without the continuation of the ECT treatment, it was possible that ZLF would suffer a relapse with the significant risk that her course of treatment would need to begin again. Cautiously, but unambiguously, he also said that it was hoped that the ECT treatment would enter a maintenance phase, perhaps, following the next two ECT treatments (which were scheduled for Wednesday, 7 August 2019 and Friday, 9 August 2019), which means that the number, and regularity, of the ECT treatments would be reduced. He admitted that it may not be necessary for ZLF to undergo all 12 treatments before 2 September 2019 as authorised by the decision of the Mental Health Review Tribunal.
Dr Y had no hesitation in expressing the view that it was in the best interests of ZLF for her to continue with the ECT treatments.
KRF asked Dr Y some questions, which were followed by questions from the Court. The Court has no reason to doubt the correctness of Dr Y's evidence. Indeed, I was most impressed with the manner in which he gave, and the content of, that evidence.
Following the conclusion of Dr Y's evidence, I adjourned the matter, for a short time, to enable KRF to consider the position, so that submissions could then be made. Upon my return to Court, when he was asked, KRF, without any hesitation, informed the Court that he did not wish to proceed with the application for the continuation of the injunction and that no appeal from the decision of the Mental Health Review Tribunal would now be made on behalf of ZLF.
In those circumstances, it was no longer necessary for compliance with the order made by Lindsay J regarding the filing and service of a Summons, and unnecessary for there to be oral submissions.
Before determining the proceedings, naturally, I considered ZLF's stated preference to not continue with the ECT treatment, which, of course, is an important, but not the only factor for consideration. The evidence is clear that she does not fully appreciate the consequences of that choice and possibly the role of the ECT treatment.
Even if the role of the Court were to consider afresh the decision of the Mental Health Tribunal (if it had been the subject of an appeal), in my view, from all of the evidence that I have read, and heard, doing so would be unlikely to result in a different order.
Furthermore, I am satisfied that the risk to ZLF's health in not continuing to implement the Tribunal's decision is significant, so that the injunction ought to be dissolved. This seems to have been apparent also to KRF.
In all the circumstances, and without opposition, the Court ordered that the injunction, granted by Lindsay J on 4 August 2019, be dissolved. As there are no proceedings to dismiss, and as the Defendant has not sought any costs, I made no order as to the costs of either party to the proceedings, to the intent that each will bear her, or its, own costs. No further order in relation to the injunction is required.
[7]
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Decision last updated: 12 August 2019