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[2025] NSWSC 251

Re D (No 2)

Summons dismissed. The injunction made by Lindsay J on 7 February 2025 is dissolved. The Notice of Motion dated 28 February 2025 is dismissed.

Catchwords

MENTAL HEALTH – Community treatment order – Proceedings by plaintiff seeking to appeal community treatment order authorising compulsory treatment of her in the community – Where the plaintiff has a diagnosis of bipolar affective disorder and displays grandiose delusions, examples of which were demonstrated throughout the hearing – Where plaintiff has a demonstrated history of resisting or not complying with previous treatment plans, which leads to worsening of her condition, and has history evidencing she is a risk of harm to herself and others – HELD: the community treatment order should be continued

Cases cited

  • SMF v South Western Sydney Local Health District[2018] NSWSC 303

Legislation cited

  • Mental Health Act 2007 (NSW) § 14(1), 51(1), 53, 54, 56(1), 56(2), 163, 164

Judgment

  1. [1]

    By Summons issued on 7 February 2025, the plaintiff, a woman in her early 50s, who for the purposes of these proceedings will be known as D, appeals against a determination on 30 January 2025 by the second defendant, the Mental Health Review Tribunal (the Tribunal) to make a community treatment order (CTO) under the Mental Health Act 2007 (NSW) (the Act), authorising her compulsory treatment in the community (the 2025 CTO). The 2025 CTO will expire no later than 29 July 2025.

  2. [2]

    The first defendant is Sydney Local Health District (SLHD), which is the only active defendant. The Tribunal has filed a submitting appearance.

  3. [3]

    The Summons sought an interim injunction restraining the implementation by force of the 2025 CTO. An injunction was granted by Lindsay J on 7 February 2025, initially for a period of a few days and was then continued by my order, until further order or delivery of this judgment, whichever occurs earlier. No further order was made.

  4. [4]

    For the reasons which follow, the appeal must be dismissed. The 2025 CTO will stand and the injunction will be dissolved.

  5. [5]

    Additionally, by motion dated 28 February 2025, D sought an order reinstating proceedings brought by her with respect to an earlier CTO, which proceedings she abandoned. The motion must be dismissed.

  6. [6]

    The Act is to make provision with respect to the care, treatment and control of mentally ill and mentally disordered persons and other matters relating to mental health.

  7. [7]

    References below to sections are, unless otherwise stated or the context indicates differently, to sections of the Act.

  8. [8]

    Part 3 of Chapter 3 is headed “Involuntary treatment in the community”; Division 1 (ss 50-56) is headed “Applications for and making of community treatment orders”; Division 2 (ss 57-64) “Operation of community orders”; and Division 3 (ss 65-67) “Revocation, variation and review of community treatment orders”.

  9. [9]

    Under s 50, an “affected person” is a person for whom a CTO has been applied for or made.

  10. [10]

    Section 51(1) provides:

  11. [11]

    Section 51(2)(a) provides that the authorised medical officer of a mental health facility in which the affected person is a patient under the Act may apply for a CTO for the person.

  12. [12]

    Although it will contribute to the prolixity of this judgment, I consider it appropriate to set out s 53 in full.

  13. [13]

    Section 53 provides:

  14. [14]

    Section 14 provides:

  15. [15]

    Section 4 provides the following as a definition for “mental illness”:

  16. [16]

    Section 56(1) provides:

  17. [17]

    Section 54 provides the requirements for a “treatment plan” for someone affected by a CTO:

  18. [18]

    By the combined effect of ss 56(2) and 53(6), a CTO cannot have effect for longer than 12 months, though a shorter period may be specified.

  19. [19]

    Section 163(1)(a) provides that a person may appeal to this Court against a determination of the Tribunal made with respect to a person.

  20. [20]

    Section 151(1)-(2) provides:

  21. [21]

    Sections 164(1)-(4) provide:

  22. [22]

    The appeal can be disposed of, on one approach, very briefly.

  23. [23]

    D suffers from and has been diagnosed with bipolar affective disorder (the disorder). She does not accept, but rather denies that she suffers from the illness. One of the symptoms of the illness displayed by her include, according to hospital records in evidence, having “grandiose delusions”.

  24. [24]

    The following are excerpts of the transcript of the final day of the appeal.

    1. (1)

      Tcpt, 20 March 2025, p 26(8)-(17):

    2. (2)

      Tcpt, 20 March 2025, p 26(32)-(40):

    3. (3)

      Tcpt, 20 March 2025, p 30(47)-(50):

    4. (4)

      Tcpt, 20 March 2025, p 31(1) to (17):

  25. [25]

    D’s delusions that she graduated medicine at age 6 years old and was the dux at Oxford, and is a specialist psychiatrist and neurosurgeon are grandiose and a stark symptom of her serious illness.

  26. [26]

    Her belief that she is a doctor involves obvious and serious risk of serious harm to others (let alone herself). This constitutes reasonable grounds for believing that treatment is necessary for the protection of others from serious harm.

  27. [27]

    She also believes she is a legal practitioner in this State and the State of Victoria. I gave her an opportunity of establishing this by affidavit. She did not prove it. If she believes that she is on the Roll of Legal Practitioners, this too involves the prospect of serious harm to others. As mentioned earlier, there is evidence that she was struck off the Roll of Practitioners in Western Australia.

  28. [28]

    A fuller approach is, however, also appropriate.

  29. [29]

    The history recounted below is established by affidavit evidence and primary documentation before the Court. The affidavit evidence is from Dr Andrew McDonald, specialist psychiatrist and Clinical Director of Mental Health for SLHD, Ms Blaise Lyons, Director of Legal Services for SLHD, and Ms Anna Johnson, the solicitor with carriage of the matter for the Crown Solicitor. I observe that D objected to the admission of all affidavit evidence and documentation. Apart from the expressions of expert opinion by Dr McDonald, the facts recounted are supported by clinical and other records and evidence of matters within the knowledge of affidavit deponents. Dr McDonald’s affidavit evidence, so far as it merely recounted facts disclosed by contemporaneous clinical or other records, was disallowed by me. The medical records themselves establish the facts.

  30. [30]

    The hearing took place over two days because D, who was self-represented, complained that material exhibited to affidavits had been given to her in electronic form only. She said she could not access it. She was given physical copies on the first day and wanted more time to deal with it and to put on further affidavit evidence. I gave her that time and she did put on a further affidavit (she had filed an earlier one). Her second affidavit takes issue with, amongst other matters, the accuracy of things said in the medical records. She denies that she has a serious and enduring mental illness and she says that she has never suffered from delusions (itself an obvious delusion). At the end of the hearing, I gave the parties an opportunity to provide affidavit material by 10am on 24 March 2025 as to her asserted qualifications and appointments.

  31. [31]

    D provided no further material. SLHD provided two affidavits which were an hour out of time and I have disregarded them.

  32. [32]

    At 10:42am on 24 March 2025, D sent an email to my Associate seeking leave to issue subpoenas to obtain information as to her appointments, with a return date of 2pm today (the time I had specified for judgment). I declined the application. It is yet another example of delusionary behaviour. She has on a number of occasions sought to delay the outcome of these proceedings and has been moderately successful in that endeavour. Since 7 February 2025, there has been on foot an injunction preventing the administration of treatment for her.

  33. [33]

    Sitting as I am, in the place of the Tribunal, I can say that I observed a progressive change in D’s demeanour from the date of her first appearance before me to the date of her last one. My observation is that over that time she has become more agitated. This change is consistent with the medical evidence that the longer she goes without her medication, the worse things will get. The grandiose delusions revealed in the transcripts excerpted earlier are consistent with her health having deteriorated. The necessity for her to be treated for her illness has assumed a greater degree of urgency.

  34. [34]

    The 2025 CTO includes the following Reasons of the Members of the Tribunal:

  35. [35]

    Prior to the 2025 CTO, two CTOs were made for D to which reference is made below.

  36. [36]

    The recent history commences with the admission of D to Royal Prince Alfred Hospital (RPAH) on 3 November 2022.

  37. [37]

    The Professor Marie Bashir Centre (PMBC) is a mental health unit which is part of RPAH.

  38. [38]

    Contemporaneous records show that D was admitted to RPAH on 3 November 2022. The clinical report as to the mental state of a detained person signed by a medical practitioner records that D was “brought in under sec 22 [1] after neighbours complained of a very strong chemical smell.” The report says that “… client states that she has had a mental health history”.

  39. [39]

    A further such report dated the following date by a psychiatrist contains the following conclusion:

  40. [40]

    A letter from a social worker at PMBC dated 14 November 2022, in relation to a court appearance, records that D was an in-patient and was unable to attend court on 14 November 2022.

  41. [41]

    In a report dated 12 January 2023, the psychiatry registrar for a consultant psychiatrist at PMBC gave a written report to the Tribunal which includes the following:

  42. [42]

    The first CTO (the 2023 CTO) was made on 18 January 2023, to expire no later than 17 July 2023. It includes the following Reasons of the Members of the Tribunal:

  43. [43]

    The SLHD report to the Tribunal used when applying for the 2023 CTO records that D had two prior hospital admissions in Western Australia for three weeks each time and that she had previously been treated with mood stabilisers and antipsychotics.

  44. [44]

    The 2023 CTO prescribed a monthly intramuscular injection of paliperidone (an antipsychotic treatment) and twice-daily oral lithium. D did not challenge it.

  45. [45]

    The second CTO (the 2024 CTO) was made on 31 July 2024, to expire no later than 30 January 2025. It includes the following Reasons of the Members of the Tribunal:

  46. [46]

    The 2024 CTO was, in my opinion, necessary and properly made. I interpolate that by reason of the 2024 CTO, s 53(3A) relieves me of making a determination under sub-s (3)(c), but I must be satisfied that D is likely to continue in or relapse into an active phase of mental illness if the order is not granted. I am so satisfied that D will continue in her active phase of mental illness if the 2025 CTO would not be granted but, in any event, I am satisfied that the requirements of s 53(3)(c) have been met.

  47. [47]

    I observe that the Reasons include that when unwell, D poses risk of serious harm to herself and suffers delusions.

  48. [48]

    The 2024 CTO provided for D to receive treatment at the Redfern Community Mental Health Service (Redfern). Records from Redfern record that:

  49. [49]

    On 3 July 2024, D was admitted to the PMBC at RPAH after coming to the attention of police. A psychiatric report by the psychiatry registrar dated 26 July 2024, prepared for the purposes of the application for the 2024 CTO, includes the following:

  50. [50]

    The clinical report as to her mental health as a detained person under ss 27, 27A or 203 of the Act by a medical practitioner, made on 3 July 2024, records that she was charged with carrying knives and psychotic on review. The medical practitioner noted observations of delusions of grandiosity and of misidentification. D’s name on the report is a different one to that apparently more commonly used by D.

  51. [51]

    D, who was in the PMBC at the time, was granted day leave to attend the Tribunal hearing but “absconded” and was marked absent without leave at the PMBC.

  52. [52]

    On 5 August 2024, she was apprehended by the police and conveyed to the PMBC where she was given medication originally scheduled for 1 August 2024 under the 2024 CTO. She was scheduled for further medication on 19 August 2024, but SLHD was restrained by the Court from enforcing the 2024 CTO.

  53. [53]

    On 10 October 2024, D’s general practitioner, Dr Rajalingam observed “nil thoughts of harm to self or others”.

  54. [54]

    Contemporaneous clinical records establish that D was admitted to RPAH on 13 October 2024 and discharged on 30 October 2024. The RPAH report records:

  55. [55]

    D challenged the 2024 CTO in this Court. [2] She ultimately discontinued the challenge on 20 December 2024. D wishes “to reinstate those proceedings”. On 28 February 2025, she filed (with my leave) a Notice of Motion in which she seeks reinstatement and that that matter be heard jointly with this one. The 2024 CTO has expired. There is no utility in her Notice of Motion and I dismiss it.

  56. [56]

    The third CTO, the subject of these proceedings, was made by the MHRT on 30 January 2025, following the expiry of the second CTO on the same day. The third CTO is in substantially the same terms as the second CTO.

  57. [57]

    The Court is charged with the task of determining afresh, on the material before it, whether the 2025 CTO was appropriate to have been made.

  58. [58]

    I am persuaded beyond any reasonable doubt that it was.

  59. [59]

    At the hearing and by affidavit, D maintained steadfastly, and contrary to clinical records going back over two years recording the diagnosis and treatment received by her for it, that she has no mental illness at all and has not been diagnosed with the disorder. She argues that she is not a mentally ill person under s 14 because it has not been shown that there is any risk of harm to herself or others if the CTO is not implemented.

  60. [60]

    She is a lawyer (without registration). She was apparently removed from the Roll in Western Australia. She would not say why.

  61. [61]

    She denies, in the face of the report about her admission to RPAH, that she was admitted to that institution. I interpolate that there is also a record of her being discharged from PMBC on 5 August 2024. At the hearing I understood her to take the position that her denial was based on the proposition that PMBC is not RPAH.

  62. [62]

    She maintains that she is a psychiatrist and has held high office and has been the Chief Psychiatrist of this State. She maintains that she is also a neurosurgeon. This reflects her grandiose delusionary behaviour.

  63. [63]

    The contemporaneous clinical records establish and Dr McDonald’s expert opinion confirms that:

    1. (1)

      D has been diagnosed with the disorder and displays significant symptoms but denies being ill;

    2. (2)

      she has delusions (including that she has no illness) and serious disorder of thought form;

    3. (3)

      there have been instances which give rise to serious concern that she is a danger to herself and to others including an occasion where she had chemical burns to her hands (which she denies) and an occasion where she was found in possession of knives and a box-cutter. This leads to the clear conclusion that she will pose a risk to herself and the public if she does not receive the necessary treatment. I note that there is no evidence of any previous criminal conviction;

    4. (4)

      she has been detained and treated involuntarily on occasion and she has on various occasions not cooperated with respect to obtaining treatment and has refused same. She has a history of discontinuing treatment after discharge from inpatient care;

    5. (5)

      when treated, her condition improves and when not, it deteriorates. No other care of a less restrictive kind consistent with her safe and effective care is appropriate and reasonably available to her. I determine that she will benefit from the 2025 CTO as the least restrictive alternative consistent with safe and effective care. I observe that she says she would have a preference for oral medication. Whether this is possible, feasible or appropriate is a matter for the clinicians; and

    6. (6)

      effects of her health deterioration may include obvious increased vulnerability to potential detrimental social consequences of her illness. I think there is a realistic possibility that she will not be able to maintain stable accommodation.

  64. [64]

    I am satisfied that she is a mentally ill person within the meaning of s 14.

  65. [65]

    The 2025 CTO provides a measure of flexibility so that clinicians may tailor the treatment regime. She says she has an allergic reaction to lithium (which is not expressly mentioned in the 2025 CTO).

  66. [66]

    The SLHD has well discharged its onus of establishing that the 2025 CTO should be continued (see SMF v South Western Sydney Local Health District [2018] NSWSC 303 (Lindsay J)). In reaching this conclusion, I am cognisant of the fact that forced medical treatment is an exceptional form of treatment not to be approached lightly.

  67. [67]

    I observe that the reasons given by the Tribunal for the 2025 CTO are consistent with my own findings.

  68. [68]

    At the end of the hearing, D sought that if the 2025 CTO stands, I order a stay (or continuation of the injunction) for a day to allow her to approach the Court of Appeal. I do not propose to order any such stay. The requirement for her treatment has assumed a degree of urgency and her own interests and, perhaps more importantly, the public interest will not be served by any such stay.

  69. [69]

    The Summons is dismissed. The injunction made by Lindsay J on 7 February 2025 is dissolved.

  70. [70]

    The Notice of Motion dated 28 February 2025 is dismissed.

  71. [71]

    The exhibits are to be returned.

Unofficial copy. Source: NSW Caselaw. Refer to the official version for authoritative text.