Z v Mental Health Review Tribunal

By an amended summons filed on 24 June 2015, Z brought an appeal, pursuant to s 163 of the Mental Health Act 2007 (NSW) (“the Act”), against the making of a community treatment order (“the CTO”) by the Mental Health Tribunal on 3 June 2015.

The defendants named in the amended summons were the Tribunal, the Attorney General of New South Wales, and the relevant Local Health District.

The CTO expired on 2 December 2015.

In the meantime, on 28 September 2015 Young AJA dismissed the s 163 appeal: Z v Mental Health Review Tribunal [2015] NSWSC 1425.

On 6 October 2015, Z filed a summons seeking leave to appeal against Young AJA’s decision.

The Court of Appeal heard the appeal on 20 November 2015 and, on 1 December 2015 (the day before the CTO was to expire), allowed the appeal (Z v Mental Health Review Tribunal [2015] NSWCA 373 (Basten JA and Emmett AJA, Bergin CJ in Eq dissenting).

The Court of Appeal made the following orders:

The effect of the Court of Appeal’s orders was that the CTO was not disturbed, and remained in operation until it expired on 2 December 2015.

The matter before me is the remitter referred to in order 3 made by the Court of Appeal.

So far as concerns the remitter, Basten JA, with whom Emmett AJA agreed, said at [41]:

Before me, Z appeared for herself and Ms Richardson appeared for the relevant Local Health District.

On 27 November 2015, a different Local Health District gave Z notice that it proposed to apply for a further CTO.

That application came before the Tribunal on 4 December 2015. On that occasion, the application was adjourned for hearing tomorrow, 18 December 2015 (although I understand that the Tribunal may not be able to hear the matter tomorrow).

By reason of the remitter, the matter before me is Z’s appeal of the 3 June 2015 order of the Tribunal.

As I have said, that appeal was brought pursuant to s 163 of the Act, which is in the following terms:

The power of the Court in relation to appeals under the Act is set forth in s 164 of the Act, which is in the following terms:

In its decision concerning Z, the Court of Appeal made clear that an appeal under s 163 is an appeal de novo.

Thus, Emmett AJA said, at [174]:

The role of the Court in a de novo s 163 appeal is to re-determine the matter based on the law and the facts as at the date of the hearing of the appeal (and not as at the date of the relevant determination of the Tribunal). New evidence may be adduced. The Court makes a new decision by re-exercising the powers of the Tribunal. The appellant does not have to establish error on the part of the Tribunal; indeed, it is not relevant for the Court to consider whether the Tribunal fell into error.

Therefore, on a s 163 appeal, the Court must determine for itself the relevant question.

The relevant question is set forth in s 53 of the Act which, relevantly, is in the following terms:

Thus, on the hearing of an appeal, the Court must determine, for itself, “whether the effected person is a person who should be subject to” a CTO for the purposes of s 53(1) of the Act.

For that purpose, the Court must consider the matters set forth in s 53(3) and (3A) of the Act (see, for example, the orders made by Lindsay J very recently in M v Mental Health Review Tribunal [2015] NSWSC 1876).

Basten JA said in Z v Mental Health Review Tribunal, at [40]:

I agree that the Court’s function is to look at the matter prospectively. The Court must decide whether, at the date of its decision, and taking into account all relevant circumstances at that date (including all pertinent medical evidence), the affected person should continue to be subject to the CTO.

But, here, the CTO has expired. The question of whether Z should continue to be subject to the CTO does not arise.

Accordingly, on the face of it, there appears to be no utility in me considering Z’s appeal further.

Z argued, nonetheless, that there was utility in me determining the merits of the appeal for two reasons.

The first was that the doctor who was proposing the further CTO (foreshadowed on 27 November 2015 and before the Tribunal tomorrow), who I will refer to as “Dr X”, had given Z:

Z relied upon the following comments that Dr X made before the Tribunal on 4 December 2015:

I do not read Dr X’s comments as amounting to the undertaking for which Z contends.

That Dr X did not give Z such an undertaking is, in my opinion, made clear by a later statement that Dr X made at the hearing as follows:

Second, Z submitted that there was utility in me determining her appeal because:

In my opinion, the answer to this submission is that there is no possible resolution of Z’s appeal that could result in me setting aside or quashing the Tribunal’s decision or otherwise finding that it had not been “properly made”.

There are two bases upon which a person the subject of a CTO can appeal to the Court.

The first is under s 163, which I have set out above. The second is under s 67(1) which is in the following terms:

Either way, the Court’s powers on the appeal are as set out in s 164 (a matter noted as being common ground, and seemingly accepted by Brereton J as being correct in S v South Eastern Sydney & Illawarra Area Health Service [2010] NSWSC 178 at [22]).

Thus, were I to proceed to hear the appeal, it would be a de novo hearing. My function would be to re-exercise the Tribunal’s “functions and discretions” (see s 164(1)) and decide for myself whether, at the date of the Court’s decision, Z “should be” subject to a CTO. My decision would then, by virtue of s 164(4), be “taken to be” the Tribunal’s decision.

If my decision, when made, were different to the Tribunal’s 3 June 2015 decision, it would not follow that the Tribunal’s decision was not “properly made” and not effective while it lasted. There would be no call (and probably no power) for me to set aside or quash the Tribunal’s decision. The effect of any order I made would be that from (and only from) the date of the order, the Tribunal’s decision would be “taken to be” as the Court determined. If anything, that might amount to a variation of the Tribunal’s order. It could not alter the fact that, for the purposes of s 53(3A) of the Act, Z was “subject” to the CTO during its pendency.

Z also drew attention to the fact that s 67(1)(b) of the Act provides that a person subject to a CTO can appeal “on any question of law or fact arising from the order or its making”.

But Z did not appeal under s 67 of the Act; her appeal was expressed to be, and was treated by Young AJA and by the Court of Appeal as being, under s 163 of the Act.

In any event, even if Z’s appeal were under s 67, the Court’s power to deal with it is that under s 164. Exercise of that power does not call for or permit findings as to the correctness or otherwise of the Tribunal’s decision.

My attention was also drawn to r 9 of the Mental Health Regulation 2013 (NSW), which is in the following terms:

That Regulation has no bearing on an appeal under the Act to the Court.

It is plainly directed to an appeal to the Tribunal from a Magistrate under s 67(2) of the Act, which is in the following terms:

Z sought to develop an argument that there was included in the “functions and discretions of the Tribunal” that the Court can exercise pursuant s 164(1) “for the purposes of hearing and disposing of an appeal” the functions thus conferred by r 9 on the Tribunal.

But the functions in r 9 are not conferred on the Tribunal “in respect of the subject matter of the appeal” under s 164(1) (namely, the Tribunal’s power to itself make a CTO). They are functions of the Tribunal when it deals with an appeal made to it of a decision of a Magistrate to make a CTO.

That regulation cannot have the effect of conferring on the Court a power to “revoke, vary or confirm” a decision made by a Tribunal. For the reasons I have outlined, I think it clear that the Court is not called upon to exercise any such function.

For those reasons, I see no utility in the appeal proceeding. To adopt the language of Basten JA in Z v Mental Health Review Tribunal at [39], it would be “practically futile” for the Court to deal with the appeal because, now that the CTO has expired, no decision as to its prospective effect can be made.

Z’s appeal also challenged other orders made by the Tribunal which the Court of Appeal described as “spent” orders.

Before me, Z stated that she did not seek to agitate any appeal rights in respect of those “spent” orders.

Accordingly, the order I propose to make is that Z’s appeal be dismissed.

It is agreed that there should be no order as to costs.