T v South Western Sydney Local Health District

By a summons filed on 10 May 2022 (and amended on 19 May 2022) the plaintiff appeals (pursuant to section 163 of the Mental Health Act 2007 NSW) against a determination made on 11 November 2021 by the Mental Health Review Tribunal (constituted by section 140 of the Act) that she be the subject of a “community treatment order”.

The appeal was not instituted within the time limited by rule 50.3 of the Uniform Civil Procedure Rules 2005 NSW (“UCPR”); but it was heard nonetheless without any objection by the defendant (the declared mental health facility charged with implementation of the community treatment order under appeal) and, accordingly, the time for appeal should be formally extended up to and including the date upon which the plaintiff filed her amended summons. For completeness sake, any requirement (under UCPR rule 50.3(2)) that an application for an extension of time under UCPR rule 50.3(1) be included in the plaintiff’s summons should also be dispensed with.

Although the plaintiff accepts that she suffers from a mental illness, there is no suggestion that she is a “person under legal incapacity” within the meaning of section 3(1) of the Civil Procedure Act 2005 (“CPA”) or that she is required by UCPR rule 7.14 to be represented by a tutor.

The definition of “person under legal incapacity” in CPA section 3(1) includes “an involuntary patient” within the meaning of the Mental Health Act 2007 NSW. The plaintiff was an involuntary patient when, on 11 November 2021, the Tribunal determined (under section 38 of the Mental Health Act 2007) that she be discharged from the mental health facility in which she was a patient subject to the community treatment order under appeal, to which she consented. She has not been an involuntary patient at any time during the pendency of her appeal.

A community treatment order is defined by section 4(1) of the Mental Health Act 2007 as “a community treatment order under Part 3 of Chapter 3” of the Act. In that Part, by virtue of section 50, a person for whom a community treatment order has been applied for or made is described as an “affected person”.

Chapter 3 of the Act is headed “Involuntary Admission and Treatment In and Outside Facilities”. Part 3 of Chapter 3 (comprising sections 50-67) is headed “Involuntary Treatment in the Community”.

Section 51 of the Act provides (with emphasis added) that “[a] community treatment order authorising the compulsory treatment in the community of a person may be made by the Tribunal” on the application of specified classes of person, essentially medically qualified.

The provisions of the Act governing the making and implementation of a community treatment order must be read against the background of the common law’s entrenched concern for the protection of civil liberties, especially in relation to medical treatment. The norm is that a prerequisite to the medical treatment of an individual is a need for the individual’s consent to that treatment: Rogers v Whitaker (1992) 175 CLR 479 at 489.

Forced medical treatment is exceptional; but, subject to procedural safeguards, permissible when justified by necessities recognised by the law: Harry v Mental Health Review Tribunal (1994) 33 NSWLR 315 at 323E, 332G-333F and 334B-335D.

It is because of the intrusive effect of a community treatment order on the civil liberties of an affected person that Parliament has laid down conditions for the making of such an order: Z v Mental Health Review Tribunal [2015] NSWCA 373 at [35].

On an appeal under section 163, the Court must identify and be satisfied as to each of the statutory pre-conditions to the making of a community treatment order, and must consider the matters required by the Mental Health Act to be considered: Z v Mental Health Review Tribunal [2015] NSWCA 373 at [7]. Each case must be decided on its own facts and by reference to the governing law, particularly sections 51, 53, 163 and 164 of the Act.

The Court must also be mindful of the protective purpose of the Mental Health Act in the context of the making, and implementation, of a community treatment order. That purpose is confirmed by sections 3, 68 and 105 of the Act, subject to the qualification (recorded in section 195) that those sections provide guidance in the administration of the Mental Health Act and do not create, or confer on any person, any right or entitlement enforceable at law.

The community treatment order under appeal was made by the Tribunal under section 38 of the Mental Health Act upon the conduct, under section 37 of the Act, of a review of the plaintiff’s status as an involuntary patient.

Section 38 is in the following terms (with emphasis added):

Upon an application of section 38(5), the Tribunal chose to make a community treatment order rather than an order that the plaintiff be discharged into the care of a “designated carer” (defined by section 71, read with section 72 of the Mental Health Act) or a “principal care provider” defined by section 72A.

Those provisions of the Mental Health Act can operate in conjunction with the provisions of the Guardianship Act 1987 NSW. The Tribunal was not, in terms, bound to make a community treatment order.

Section 71(1)(a) of the Mental Health Act defines “the designated carer” of a patient in terms that include “the guardian of the patient”.

Section 4(1) of the Mental Health Act provides that “‘guardian’, in relation to the exercise of any function under [the] Act by the guardian of a person under guardianship, means a guardian who is able to exercise that function.” It also provides that the expression “person under guardianship” means “a person under guardianship within the meaning of the Guardianship Act 1987”.

Section 3(1) of the Guardianship Act defines a “person under guardianship” as “a person who has a guardian within the meaning of this Act”. It also defines the expression “guardian” to mean “a person who is, whether under this Act or any other Act or law, a guardian of the person of some other person (other than a child who is under the age of 16 years), and includes an enduring guardian”.

The subsection defines the expression “enduring guardian” to mean “a person appointed as an enduring guardian under Part 2” of the Guardianship Act. Such an appointment is made (by the execution of a written instrument in a prescribed form) by an appointor in favour of an appointee who consents to be his or her guardian. Such an appointment generally has effect only during such period of time as the appointor is “a person in need of a guardian”. It is said to “endure” because, unlike the appointment of an agent under the general law, it can operate after an appointor has lost mental capacity.

By virtue of s 6E of the Guardianship Act, subject to the terms of the written instrument of appointment, an instrument appointing a person as an enduring guardian authorises an appointee, while the appointment has effect, to exercise the following functions:

The Guardianship Division of the NSW Civil and Administrative Tribunal (“NCAT”) has power under section 14 of the Guardianship Act (qualified by other provisions of the Act) to appoint a guardian (by means of a “guardianship order”) if satisfied that the person in respect of whom an order is to be made is “a person in need of a guardian”.

The expression “a person in need of a guardian” is defined by section 3(1) of the Guardianship Act to mean “a person who, because of a disability, is totally or partially incapable of managing his or her person”.

Section 3(2) of the Guardianship Act provides as follows:

Section 3C of the Guardianship Act also addresses the relationship between that Act and the Mental Health Act. It is in the following terms:

It is not necessary for the purpose of this judgment to explore in detail the respective jurisdictions of the Mental Health Review Tribunal and NCAT, or the jurisdiction (including an inherent, protective jurisdiction) of the Court recognised by both the Mental Health Act and the Guardianship Act.

It is sufficient to notice that the legislative scheme for management of the person (and, it should be noted, the estate) of a mentally ill person has a degree of flexibility beyond the constraints attending the making, or operation, of a community treatment order.

With editorial adaption, the Tribunal’s determination that the plaintiff be the subject of a community treatment order was in the following terms (with emphasis added):

The “Treatment Order Plan” incorporated in the Tribunal’s Determination by reference was dated 5 November 2021. It nominated as the plaintiff’s “Treating Doctor/Psychiatrist” a named “Consultant Psychiatrist” (for convenience, identified in these reasons as “Dr S”) or delegate.

With editorial adaptation, the Treatment Order Plan was in the following terms (with emphasis added):

The Tribunal’s community treatment order conforms with the formal requirements of section 57 of the Mental Health Act in that, inter alia, it specifies a duration of 12 months.

The treatment plan incorporated in the community treatment order complies with the formal requirements of section 54 of the Mental Health Act, which is in the following terms:

Section 57 of the Mental Health Act and subsequent sections deal with the “operation of community treatment orders” in terms that, first, define the duties and functions of an affected person and a mental health facility and, then, make provision for dealing with a breach of a community treatment order, including engagement of the NSW Police Force in the process of enforcement of a community treatment order.

Section 57 is in the following terms:

Although the community treatment order under appeal was made by the Tribunal by reference to section 38(5)(b) of the Mental Health Act, the determination that the plaintiff be discharged from the mental health facility where she was then held, accompanied by a community treatment order, may be taken to have been made by reference to sections 51 and 53 of the Act.

Sections 51 and 53 are in the following terms (with emphasis added):

Paragraphs (a) and (b) of section 53(3) lie at the heart of the present proceedings.

Their centrality is highlighted by the following features of the factual matrix of the case:

I intend no criticism in recording that the defendant appears to be administratively unable or unwilling (I cannot determine which without collateral enquiries) to accommodate the plaintiff’s perceived need for appointments for her treatment by the defendant to be scheduled on a weekend so that she can optimise her prospects of pursuing gainful employment during weekdays.

The plaintiff’s case is, perhaps, unusual because:

No submission has been made by the defendant that the fact that the plaintiff consented to the determination of the Tribunal that she be subjected to a community treatment order precludes her from objecting to the community treatment order on appeal.

The nature of the jurisdiction exercised by the Tribunal and the Court - protective of the plaintiff as a mentally ill person - does not readily lend itself to an unexpressed, formal limitation upon consideration of what is, from time to time, required to deal appropriately with the fact of mental illness.

It might be otherwise if proceedings were able to be characterised as an abuse of process; but that is not this case. There has been a material change in the circumstances surrounding the making of the community treatment order under appeal in that the plaintiff's mental illness is not currently in an active phase, she has acknowledged the fact of her mental illness and taken steps to provide for her ongoing treatment, and she has secured employment commensurate with her qualifications which could be put at risk by an insistence that she be compelled to submit to fortnightly depot injections.

The importance of administrative convenience (on both sides of a treatment plan) is not to be overlooked or discounted. In making a determination under section 53(3) of the Mental Health Act, the Tribunal (and, on an appeal under section 163, the Court) must have regard to the “appropriateness” of a treatment plan “proposed” by a declared mental health facility such as the defendant (pursuant to section 53(2)(a) of the Act) and the facility’s capacity for implementing it, as well as the “appropriateness” and “reasonable availability” of alternative care arrangements.

A treatment plan “owned”, if not proposed, by a declared mental health facility is a foundational requirement for the making of a community treatment order. Without such a Plan a community treatment order cannot be made.

An inability, or refusal, of a declared mental health facility to own and implement a treatment plan (to paraphrase section 53(3)(b) of the Mental Health Act) other than one “proposed” by it (for the purpose of section 53(2)(a) of the Act) is likely, in practice if not in law, to be fatal to the making of a community treatment order.

Whether a declared mental health facility can lawfully veto the making of a community treatment order by a refusal to provide, or to implement, a treatment plan not originally proposed, or later adopted, by it is not a question for determination in these proceedings despite the tenor of submissions made by the defendant to that effect by reference to S v South Eastern Sydney & Illawarra Area Health Service and Anor [2010] NSWSC 178 at [23].

There Brereton J made the following observations (with emphasis added):

Although I am content to concur in these observations as far as they go, they do not, of themselves, justify a refusal on the part of a declared mental health facility to engage in a process of discussion with the Tribunal (or the Court) and an affected person about the form and content of a treatment plan that might be “appropriate” for the treatment of the affected person in the community. Section 53 does not preclude a mental health facility from proposing, or adopting, as “appropriate” for the purpose of s 53(b) a treatment plan other than that initially “proposed” for the Tribunal’s “consideration” pursuant to section 53(2)(a).

The Tribunal must “determine”, inter alia, that a declared mental health facility “has an appropriate treatment plan”. That plan does not have to be the plan “proposed” for “consideration” at the outset of the Tribunal’s deliberations.

I do not read Brereton J’s observations as necessarily suggesting otherwise. He did not address the point and, I infer, had no occasion to do so. In terms of his exposition of section 53, a treatment plan can, in my opinion, be “placed before” the Tribunal (in one form or another, with or without amendment of an original plan) at any time before it makes a determination under section 53(3).

The word “appropriate” is strategically placed in both section 53(3)(a) and section 53(3)(b) of the Mental Health Act. The absence of the same word in section 53(2)(a) of the Act suggests, to my mind, that the Tribunal (and the Court on appeal from the Tribunal) has a role to play in the formulation of a treatment plan that can be the subject of a determination that satisfies the criteria for which section 53(3) provides.

The Tribunal (still less, the Court) is not a rubber stamp for a declared mental health facility. The language of section 53 implicitly contemplates that the Tribunal (and, on appeal, the Court) can, and ordinarily should, engage in a process of consultation leading to the making by the Tribunal of a discretionary determination.

A decision made by reference to section 53 (and an “appropriate” treatment plan incorporated in a community treatment order made under section 53) must be informed by the statutory objects of the Mental Health Act, the Act’s statement of principles for care and treatment of a mentally ill person, and the objects of the NSW public health system identified by the Act. The Tribunal (and, in its turn, the Court) is entitled to expect that a declared mental health facility will engage constructively with the process of making a determination under section 53 (which has a quasi-judicial character), informed by considerations other than abstract medical science, requiring the prudential management of risk.

That Brereton J was conscious of a need to distinguish between what might be described as an optimal medical solution and the legal criteria for which section 53 provides is apparent from paragraphs [37]-[41] of his judgment (with emphasis added):

It is sufficient, in these proceedings, to note that the defendant’s refusal to entertain any form of treatment plan that provides otherwise than for treatment of the plaintiff by depot injection as and when determined by a “treating doctor” nominated by it (without regard to the convenience of the plaintiff) is an impediment to the community treatment order under appeal remaining on foot.

In the course of the hearing of the plaintiff’s appeal, the defendant manifested an inability or refusal to arrange for its treatment of the plaintiff (including, particularly, the administration of depot injections and the testing of blood as a means of monitoring compliance with a regime of oral medication) on a weekend, or at such other times designed to cater for employment opportunities that became available to the plaintiff following her discharge from a mental health facility on 11 November 2021.

Under the community treatment order under appeal, as implemented by the defendant (exercising the discretions available to it under the treatment plan incorporated in the community treatment order) the plaintiff has been required, and would be likely in the future to be required, for the convenience of the defendant, to submit to a depot injection on a Tuesday. When under interlocutory arrangements made during the course of her appeal, the plaintiff undertook to submit to weekly blood tests, she was, and is, required by the defendant, to submit to those tests on a Friday.

The administration of a depot injection on a Tuesday not only occupies a substantial part of that day but, because of the side effects of the administration of a large doze of olanzapine, interferes with the plaintiff’s capacity for paid employment for one or more following days.

Although the defendant agrees that her engagement in paid employment has therapeutic benefits for the plaintiff, and is indicative of her better insight into her condition than was formerly the case, it is unable or unwilling to accommodate its treatment of her to the pattern of a normal working life. For whatever reason, it privileges its administrative convenience over the convenience of the plaintiff, if not (unwittingly) also her wellbeing. This does not sit comfortably with the statutory objects of the Mental Health Act, the Act’s statement of principles for care and treatment of a mentally ill person, or the objects of the NSW public health system identified by the Act.

Decisions made about the content and viability of a treatment plan involve an element of risk management in the treatment of an affected person, informed by past experience but necessarily focused upon the present and an unknown future. A reflection of that reality can be seen in section 53(3)(c) and, in the factual setting of the present proceedings, section 53(3A).

In the nature of a community treatment order is an element of coercion, reinforced by subjection of an affected person to discretionary decision-making by public officials charged with implementing a treatment plan. Nevertheless, the efficacy of a community treatment order may depend upon the existence or otherwise of a rapport between a treating doctor (and others working with the treating doctor) and the affected person. The Mental Health Act recognises that, inter alia, in its recognition of the purposive nature of its regulatory regime.

The provisions of the Mental Health Act 2007 governing the making, and operation, of a community treatment order are informed by sections 3, 68, 105 and 195 of the Act.

Those sections are in the following terms (with emphasis added):

Although section 67 of the Mental Health Act provides specifically for a limited form of appeal to the Supreme Court from a community treatment order made by the Tribunal, section 163 of the Act, in company with section 164, provides a right of appeal expressed in more general terms. The parties agree that the present proceedings constitute an appeal under section 163 rather than section 67.

Sections 163 and 164 are in the following terms (with emphasis added):

In deference to section 162 of the Mental Health Act (which, on terms, proscribes publication of the name of a person to whom a matter before the Tribunal relates), the plaintiff is identified in these proceedings by the pseudonym “T”.

Although section 164 empowers the Court to enlist the assistance of “assessors” (from a panel established pursuant to section 165 of the Act) the parties to the present proceedings disclaimed any need for an assessor and, in my opinion, the questions for the Court’s determination do not require the assistance of an assessor. To the extent that medical evidence may be of assistance to the Court, the defendant has adduced such evidence in support of its case for the continued operation of the community treatment order under appeal.

Because the appeal takes the form of a “new hearing”, the defendant accepted the forensic onus of persuading the Court that the community treatment order under appeal be continued: Z v Mental Health Review Tribunal [2015] NSWCA 373 at [7], [173]-[174] and [181]; S v South Eastern Sydney and Illawarra Area Health Service [2010] NSWSC 178 at [22].

In conferring upon the Court jurisdiction under section 163 to entertain an appeal from the Tribunal, the Mental Health Act acknowledges that the Court has powers that include, but are not limited to, the powers of the Tribunal, a statutory entity confined to powers conferred upon it, and governed, by legislation.

This can be seen, particularly, in the terms of section 164(1). For the purpose of hearing and disposing of an appeal, the Court has “all the functions and discretions of the Tribunal in respect of the subject-matter of the appeal”, an expression which (in the context of an appeal against a community treatment order) includes the Tribunal’s power under section 65(1) of the Mental Health Act. The concluding words of section 164(1) - “in addition to any other functions and discretions [the Court] has”- explicitly recognise that the Court has powers additional to those of the Tribunal. Those powers include, for example, a power to make orders on terms (CPA, section 86) and powers to give such judgment or to make such orders as the nature of a case requires (CPA section 90; UCPR rule 36.1).

That the Court has a broader remit than the Tribunal is confirmed, more obliquely than appears in section 164(1), by other provisions of the Mental Health Act. Section 163(2) provides that an appeal under the section is “to be made subject to and in accordance with the rules of the Court”. Section 164(3) directs the Court to have regard to the provisions of the Mental Health Act “and any other matters it considers to be relevant in determining an appeal”. Section 164(4) provides that the decision of the Court on an appeal is to be taken to be “where appropriate” a final determination of the Tribunal.

Section 167 expressly records that the chapter of the Act that confers statutory jurisdiction on the Court does not “[derogate] from or otherwise [affect] the jurisdiction of the Court under any act or other law”, thus acknowledging the inherent and statutory protective jurisdiction of the Court.

Save possibly in an exceptional case (of a type recognised in J v Lieschke (1987) 162 CLR 447 at 456-457 where Brennan J recognised that an overly strict application of a requirement for procedural fairness might, in an exceptional case, frustrate an exercise of protective jurisdiction), any exercise by the Court of its powers requires that it afford procedural fairness to the parties to an appeal under section 163 of the Mental Health Act.

The point made, for present purposes, is that the powers of the Court are not limited, as the defendant would have it, simply to allowing or dismissing the plaintiff’s appeal.

There is no dispute between the parties, and I accept, that the plaintiff is in need of medical treatment for mental illness and that a regular dose of olanzapine, as prescribed for her in implementation of the community treatment order under appeal, is appropriate, subject to review from time to time.

The dispute between the parties is, in essence, whether the plaintiff can be trusted to take her medication if permitted to do so by means of unsupervised daily oral tablets instead of institutionally administered fortnightly depot injections.

The defendant’s scepticism about the reliability of the plaintiff to take daily doses of her medication (and about the verifiability of any arrangement for self-administered medication) has a reasonable foundation in the nature of the plaintiff’s mental illness and the history of her engagement with public authorities concerned about her mental health.

The defendant has placed before the Court primary records (dating from 29 November 2013) which provide an objective foundation for findings that the plaintiff suffers from mental illness (a delusional disorder or a schizoaffective disorder); has a continuing need for medical treatment; and is a risk to her own safety, and perhaps the safety of others, if she does not maintain a correct medical treatment regime.

The plaintiff has a history of engagement with the Tribunal since, on 18 December 2013, it made a determination under section 35 of the Mental Health Act that she was a mentally ill person who was required to be detained in, or admitted and detained in, the mental health unit of a public hospital for further observation or treatment, or both, as an involuntary patient.

The primary records relied upon by the defendant are largely reproduced in a Court Book, the contents of which are summarised in an index (MFI D7) and summarised in an attachment to the defendant’s written submissions filed 27 May 2022 (MFI D6). The primary material has been presented to the Court by the defendant in a chronological order that highlights the character, duration and recurrence of the plaintiff’s mental illness.

Although, in fairness to the plaintiff, it should be remarked that the primary documents suggest that she has developed some insight into her medical condition, the dominant portrayal of her in those documents is that of a mentally ill person who has a history of resistance to treatment.

A selection of extracts from the primary documents is sufficient to demonstrate the nature of the plaintiff’s illness.

On 1 March 2021 a psychiatrist recorded having observed the following facts indicative of mental illness (with editorial adaptation):

On 6 April 2021 a report presented by Department of Health psychiatrists included the following extracts (with editorial adaptation):

A psychology report dated 6 September 2021 prepared for the Tribunal included the following observations (editorially adapted):

A report dated 1 November 2021 addressed by Department of Health doctors to the Tribunal for its hearing on 11 November 2021 concluded with the following observations, under the heading “Legal Issues” (with editorial adaptation):

As has been earlier noted, when the Tribunal met on 11 November 2021 it acted on this recommendation and made the community treatment order presently under appeal.

Before she instituted her appeal, the plaintiff applied unsuccessfully to the Tribunal to vary her community treatment order. On 31 March 2022 she presented to the Tribunal a formal application to vary the community treatment order to provide for “medication to be changed from 405mg [depot injection] of olanzapine to 30mg oral tablets each night”.

Section 65 of the Mental Health Act, pursuant to which that application was made, is in the following terms:

In support of her application the plaintiff presented a signed statement which included the following observations:

The letter of the plaintiff’s physiotherapist (dated 23 March 2022) was in the following terms (with editorial adaptation):

The Tribunal appears not to have entertained the plaintiff’s section 65 application. Instead, she received an email from an officer of the Tribunal’s registry (dated 31 March 2022) the terms of which included the following:

In its assumption that the plaintiff’s application was for an order that the community treatment order presently under appeal be revoked, the Tribunal’s response was unresponsive. It did not address her application for an order that the community treatment order be varied. Nor did it acknowledge that, as an affected person, the plaintiff had standing to make an application for the community treatment order to be varied. Although it referred to the criteria identified in section 65(3), it did not address the facts underlying the plaintiff’s application. Nor did it address the question whether the community treatment order, if varied as proposed, “could be made in relation to the affected person”: section 65(4).

The Tribunal registry appears to have acted upon the same understanding of the nature of a community treatment order advanced by the defendant in these proceedings in support of an order that the plaintiff’s appeal be dismissed. A common assumption of the Tribunal’s registry and the defendant appears to be that, once of community treatment order is made (expressly or implicitly in terms that confer a discretion upon an affected person’s treating doctor) any variation of treatment must be left to the treating doctor, without independent review during the operation of the order.

Section 65 of the Mental Health Act is, in terms, inconsistent with such an understanding of a community treatment order. It provides a statutory authority for the Tribunal to review a community treatment order. It cannot be read down, or glossed, by reference to a common practice of conferring discretionary authority on a treating doctor. The Tribunal retains a power, recognised in section 65, to supervise the operation of a community treatment order. And, in an exceptional case, the Court retains a power to intervene with the operation of a community treatment order upon exercise of its inherent, protective jurisdiction preserved by s 167 of the Mental Health Act and not otherwise abrogated.

The nature of the Court’s inherent, protective jurisdiction (sometimes described as its parens patriae jurisdiction) is explained in Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218 at 258 (with editorial adaptation):

As was recognised in Re Eve (at SCR 414 and 427; DLR 19 and 29), although the jurisdiction has a theoretically unlimited scope, it must be exercised in accordance with its underlying principle: the Court is required to do what is necessary for the protection of the person for whose benefit it is exercised, not for the benefit of others. The Court’s discretion that must be exercised with a caution commensurate with the business under consideration.

In Re Eve the Canadian Supreme Court also recognised that the jurisdiction is not readily taken as excluded by legislation, but where legislation prescribes procedures for dealing with an incapable person, the Court will generally confine an exercise of its jurisdiction to uncontemplated situations where it appears necessary to do so for the protection of the incapable person or other exceptional circumstances: SCR 411 and 426; DLR 17 and 28. Local authorities to similar effect are Re Victoria [2002] NSWSC 647; 29 Fam LR 157 at [37]-[40] and Re Frieda and Geoffrey [2009] NSWSC 133; 40 Fam LR 608.

There is no necessity in these proceedings to invoke the Court’s inherent, protective jurisdiction given the nature of an appeal under section 162 of the Mental Health Act and the fact that, on the evidence before the Court, the plaintiff’s mental illness is not presently in an active phase. Care nevertheless needs to be taken in disposition of the appeal to have regard to the possibility that, if the plaintiff’s mental illness were to enter an active phase without appropriate arrangements for her ongoing care, her safety and the safety of others might be at risk.

Although the plaintiff’s amended summons is expressed in terms of an application for revocation (or, in the alternative, variation) of the community treatment order made on 11 November 2021, it might have been framed (as an appeal or on administrative law grounds) as a challenge to the Tribunal’s refusal to entertain an application for variation of the community treatment order.

In so far as the amended summons invites the Court to make an order varying the community treatment order under appeal it seeks an order “to restrict the treatment of the plaintiff so as not to include intramuscular injections of an anti-psychotic drug including olanzapine and to provide for oral anti-psychotic medication in lieu thereof.”

The proceedings in this Court were commenced by a summons filed on 10 May 2022 at which time, upon an ex parte application by the plaintiff, I made the following notation and orders:

On the return of the summons the next day (11 May 2022) I made notations to the following effect:

On the next occasion the proceedings came before the Court (on 16 May 2022) I made notations to the following effect:

Directions having been given, and complied with, for preparation of the proceedings for a hearing, on 16 June 2022 I made a notation and orders to the following effect:

The hearing of the appeal commenced on 25 July 2022 and proceeded on that day to the point that the parties required additional time to make final submissions.

As events transpired, Dr S was (by reason of illness) unable to attend the hearing. Her absence was unfortunate. The Court had the benefit of an affidavit sworn by her, but no opportunity to see her cross-examined or, perhaps more importantly, to engage with her personally about her assessment of the plaintiff.

Oral submissions were received on 5 August 2022, at the conclusion of which I made the following order and notation:

On 10 August 2022, the solicitor for the plaintiff provided to the Court a draft form of treatment plan predicated upon rejection of the plaintiff’s primary submission that the community treatment order under appeal should be revoked.

That draft plan was in terms to the following effect:

On 11 August 2022 the office of the solicitor for the defendant provided to the Court a written response in terms to the following effect:

The references in the plaintiff’s draft alternative treatment plan and the defendant’s written response to Dr S reflect the fact that (to put the point neutrally) there has been friction between Dr S and the plaintiff in Dr S’s supervision of the plaintiff’s treatment of the plaintiff on behalf of the defendant.

I refrain from attributing blame for this friction because, despite the fact that the date for the hearing of the appeal was appointed to facilitate Dr S’s appearance before the Court, she was not available at the hearing to be cross-examined on her affidavit.

I am conscious of a need, on the one hand, not to interfere with, or undermine the authority of, the defendant’s performance of its functions and, on the other hand, to treat with respect complaints by the plaintiff about the way the defendant conducts its business.

The defendant would be wise to consider the possibility of nomination of somebody other than Dr S as the plaintiff’s treating doctor should the plaintiff continue to be the subject of a community treatment order. That is a topic to which I must return.

In the absence of Dr S, the defendant submitted its Director of Medical Services, Mental Health, Dr F, for cross-examination. His evidence was, on the whole, supported by evidence of Dr E, a forensic psychiatrist at the Forensic Hospital at Malabar, who was also made available for cross-examination. Their evidence falls to be considered in light of an affidavit of Dr S, a Court Book containing primary records, affidavits of a solicitor employed in the office of the Crown Solicitor for NSW and the evidence of the plaintiff personally.

In oral evidence-in-chief (supplementary to his affidavit affirmed on 21 July 2022), Dr F was asked whether he agreed (and he did agree) with the following observations in an affidavit (sworn on 13 May 2022) by the solicitor employed in the office of the Crown Solicitor for NSW, here reproduced with editorial adaptation (and emphasis added):

Dr F also agreed with the deponent’s observation that fortnightly blood tests are not considered adequate to identify the plaintiff’s compliance with oral Olanzapine, and the defendant considers it clinically inappropriate for a son of the plaintiff resident with her to supervise her medication, as she and her son had proposed.

In his examination in chief Dr F also agreed with the following observations made in an affidavit sworn by Dr S on 27 May 2022 (here reproduced by reference to numbered paragraphs of the affidavit, with editorial adaptation and emphasis added):

Dr F was not expressly invited in his evidence in chief to agree with paragraph 70 of Dr S’s affidavit, which is in the following terms:

Dr F was asked in his examination in chief to agree (and he did agree) with the following paragraphs of Dr S’s affidavit:

In the affidavit affirmed by him on 21 July 2022, Dr F analysed blood tests undertaken by the plaintiff on 20 May 2022, 27 May 2022, 3 June 2022, 10 June 2022, 20 June 2022 and 24 June 2022, some of which were undertaken at Campbelltown Hospital. Although he records his understanding (based upon information provided by Dr S) that the plaintiff’s Treatment Team did not agree to the plaintiff attending upon Campbelltown Hospital, rather than Liverpool Hospital, he disclaimed any intention to criticise the plaintiff for her attendance at what was, for her, the more conveniently located hospital.

The gravamen of Dr F’s affidavit appears in paragraphs 44-45, here reproduced with editorial adaptation:

The defendant, through this evidence, demonstrated greater confidence in the reliability and efficacy of blood tests than it did when it resisted the regime of oral medication and blood tests adopted by the Court as an interlocutory regime pending determination of the appeal.

It is difficult to exclude entirely an impression that the one constant in presentation of the defendant’s case has been a fixed determination to insist upon compulsory administration of depot injections on terms wholly within the defendant’s untrammelled discretion, even as regards non-medical administrative arrangements.

I do not intend by this criticism, to reflect adversely upon any individual associated with the defendant. Both Dr E or Dr F presented themselves to the Court as conscientious health professionals. I apprehend, though, that there is a degree of institutional inertia in the administration of community treatment orders or, perhaps more accurately, a lack of resources, that has impeded engagement by the defendant with the particular circumstances of the plaintiff.

Dr F confirmed that the defendant has been unable to arrange for a private medical practitioner to administer depot injections on a weekend, and that an analysis of the plaintiff’s blood tests is not a common or straight forward process because the defendant has to send blood samples interstate for analysis. There was no exploration in the evidence of the possibility that a private practitioner might be trained to administer depot injections in a manner approved by the State’s public health authorities.

The following exchange took place between Dr F and myself during his cross-examination (with editorial adaption):

In assessing the evidence of Dr S, Dr E and Dr F allowance also has to be made for the limited nature of their contact with the plaintiff.

Dr S appears to have had personal contact with the plaintiff on only three occasions, each time for the purpose of a review of the plaintiff’s condition. They met in person on 6 December 2021 and 28 March 2022. Their third encounter, on 4 May 2022, was by telephone.

Although the community treatment order under appeal obliged the plaintiff to attend a review with Dr S or a delegate of Dr S at least once every eight weeks, 11 weeks had passed by the time of the hearing of the plaintiff’s appeal without the defendant having arranged for such a review.

Dr S’s evidence appears to have relied in large measure on documentary records.

Dr E’s evidence about the medical condition of the plaintiff, and his prognosis, was also based largely upon documentary records. His personal contact with the plaintiff was limited and not recent. He met her for the purpose of a review on 31 March 2021 and 6 July 2021, with no subsequent meeting. His personal contact with her was thus about one year before the hearing of her appeal, and he gave evidence without having read an affidavit sworn by her on 22 July 2022.

Dr F had read the plaintiff’s affidavit of 22 July 2022 when he gave his evidence; but, when he gave his evidence, he had not met her or examined her in a clinical sense. His evidence was based upon his reading of the documentary record and discussions with Dr S consequent upon her unavailability to attend at the hearing.

Although the medical witnesses called by the plaintiff in support of its case have had little personal contact with the plaintiff, significance attaches to the fact that other officers of the defendant have maintained personal contact with the plaintiff without any report of aberrant behaviour on her part.

The following exchange occurred between the plaintiff’s solicitor and Dr F during his cross-examination (with editorial adaption):

At a later point in Dr F’s cross examination the following exchange occurred:

Dr F’s qualification of his answer appears to have been tied to his reading of the documentary record. At one point, when asked about the educative function of the defendant’s programme for treating the plaintiff, Dr F remarked:

The documentary record provides an important evidentiary foundation for assessment of the plaintiff’s medical condition. However, it requires careful reading because much of what it records is repetitious, with cumulative observations made in support of periodic recommendations to the Tribunal for ongoing protective orders against the plaintiff. In the absence of direct, personal engagement with the plaintiff, any reader of such documentation may unconsciously find it difficult to step outside the paradigm it presents. The voice of the plaintiff is not readily heard above criticism of her conduct over a course of time and perceptions of an argumentative personality.

Allowing for the possibility (which I accept as real) that a person suffering the plaintiff’s illness may have developed strategies for concealing his or her illness, the plaintiff presented herself, in the oral evidence she gave at the hearing of her appeal, as an intelligent, articulate, responsible and reasonable person, with more than a nominal insight into her history. She was well dressed and groomed. Her answers to questions were consistently rational and responsive. When confronted in cross-examination with what appeared to be an inconvenient fact about what she had said or done in dealings with health authorities, she more than once accepted the evidence against her but calmly offered a rational explanation which was not shown to be implausible.

The plaintiff’s motivation for pursuing her appeal appears genuinely grounded on a deep desire to pursue a career for which she has qualifications. She was not challenged on her evidence that the constraints of a regime of depot injections (some medical, some administrative) would be likely to prevent her from engaging in employment of the type for which she is qualified, if any. I accept that evidence.

Two affidavits of the plaintiff were read in presentation of her case. One was sworn on 10 June 2022, the other on 22 July 2022. Although she was challenged in cross-examination about her history of mental illness, her engagement with public health authorities and her evidence that she had faithfully taken her prescribed oral medication on a daily basis since the time of her motor vehicle accident in February 2022 or thereabouts, she was not cross-examined directly about her personal circumstances, her current employment or employment opportunities. Counsel for the defendant sought, and readily obtained, confirmation that the plaintiff has not disclosed her mental illness to her current employer(s). Beyond that, her observations about her employment were not challenged.

The following extract from the plaintiff’s affidavit of 10 June 2022 (here reproduced with editorial adaption) offers a convenient illustration of her perspective:

The plaintiff was not cross-examined directly on this evidence, or on her other evidence to similar effect, but was given opportunities to explain her perspective of her condition and treatment.

She was not cross-examined on her evidence (in her affidavit of 22 July 2022) that she maintains a stable home environment and that she has made arrangements to place herself under the care of a private psychiatrist in the event that the community treatment order under appeal is revoked.

In the final paragraph of her second affidavit, she made the following observation (not challenged directly, but obliquely, in cross-examination):

Her evidence was challenged robustly, principally by confrontation of her with statements attributed to her in the documentary record assembled by the defendant and by presentation of blood test results said to be inconsistent with her evidence of compliance with a daily regime of oral medicine.

The following exchange in cross examination of the plaintiff provides her perspective of the circumstances relating to the making of the community treatment order under appeal (with editorial adaptation):

The following exchange took place between the plaintiff and myself during her cross-examination about the therapeutic benefits of her oral medication.

The following exchange between counsel for the defendant and the plaintiff also occurred during her cross examination:

On one view, a high point in counsel’s cross examination of the plaintiff (from the perspective of the defendant) was the plaintiff’s response to a passage in the medical report dated 1 November 2021 prepared for the Tribunal hearing on 11 November 2021. That passage, read to her by counsel, was in the following terms (with editorial adaption):

That passage having been read to the plaintiff, she was asked:

The plaintiff’s response was:

The question of whether any (and, if so, what) event or events might have occurred in the life of the plaintiff to cause a post-traumatic stress disorder was not explored in the evidence. A fair inference, however, is that, in the plaintiff’s estimation, she was traumatically affected by the removal of her children from her care, if not other events in her domestic life.

The plaintiff’s attribution of her mental illness to PTSD cannot fairly be taken as indicative of a denial of the illness itself. Her rationalisation of her mental illness by reference to her experience of trauma is within a normal range of human experience. She has come to an appreciation that she has a mental illness. The reasons why she attributes her illness to PTSD were not explored in the evidence.

Regrettably, conflict between the plaintiff and Dr S cannot but be noticed in disposition of the plaintiff’s appeal.

In her affidavit of 10 June 2022 the plaintiff made the following observations (here editorially adapted):

Dr S did not swear an affidavit in reply to this evidence of the plaintiff, and she was not available to give oral evidence at the hearing of the appeal.

Counsel for the defendant cross-examined the plaintiff about her relationship with Dr S, including various incidents which, in my assessment, indicate that Dr S and the plaintiff were at times at cross purposes. I do not intend to be critical of either woman for their miscommunications.

The focus of present attention is the plaintiff’s allegation that Dr S threatened to call her employer and likened her to a terrorist. During the course of the plaintiff’s cross examination the following exchanges occurred on this topic (here reproduced with editorial adaptation):

Without the benefit of a response from Dr S or an opportunity to engage with her about her relationship with the plaintiff, I am not in a position to form a view about her conversations with the plaintiff. I am nevertheless inclined to the view that, if Dr S used the words attributed to her by the plaintiff, she did so without any intention to cause offence, but simply to emphasise the importance of the business in hand. My sense is that my intervention in the defendant’s cross-examination brought home to the plaintiff the possibility that, whatever words Dr S may have used, she was not intending to cause offence.

Of greater concern for the Court in disposition of the plaintiff’s appeal are the following observations made in the affidavit of Dr S (with editorial adaptation):

In the absence of Dr S, the solicitor for the plaintiff took up this topic in his cross-examination of Dr F. With editorial adaptation, the transcript records the following exchanges:

Having laid out this evidence, I make the following comments. First, Dr S’s affidavit appears to exhibit a degree of frustration with the plaintiff that supports my earlier comment that the defendant would be wise to consider the possibility of nomination of somebody other than Dr S as the plaintiff’s treating doctor should the plaintiff be the subject of a community treatment order. Secondly, I note that the defendant (as evidenced by its communication of 11 August 2022 to the Court) has not committed itself to any course of action but indicated that it is “giving careful consideration to the possibility of Dr S delegating her responsibilities under the existing community treatment order”. Thirdly, nothing in this judgment is intended to reflect adversely on Dr S, or any other person. Fourthly, although I accept (as the plaintiff’s solicitor put to Dr F) that there is an adversarial aspect of the present proceedings, it is important to remember that the nature of the proceedings is essentially protective of the plaintiff, not adversarial in the sense that that word is used in the conduct of ordinary civil litigation.

On the evidence before the Court, I am bound to revoke the community treatment order under appeal because (upon a new hearing, pursuant to sections 163-164 of the Mental Health Act, of the question, stated in terms of section 53(1) of the Act, whether the plaintiff is a person who should be subject to the community treatment order under appeal) I am not satisfied, as section 53(3) requires that I be satisfied, of the requirements of section 53(3)(a) and section 53(3)(b).

Nor am I satisfied, as section 53(3A) of the Act requires that I be satisfied, that the plaintiff is likely to continue in or (on the evidence, more to the point) to relapse into an active phase of mental illness if the community treatment order under appeal is not upheld.

The defendant has contributed to the outcome of the plaintiff’s appeal by its refusal to entertain any form of variation of the community treatment order under appeal (or, more particularly, the treatment plan incorporated in the community treatment order), or administrative arrangements (for example, the administration of depot injections on a Saturday), designed to facilitate the plaintiff’s employment, notwithstanding its acknowledgement that her employment is both therapeutically beneficial to her and an objective indicator of her growing insight into her mental illness.

As established by the evidence read as a whole, the plaintiff is not currently in an active phase of her illness, although there remains a risk of relapse if she does not take her medication, a risk which, I am satisfied, she genuinely recognises. If (as I expect) she adheres to her programme of taking daily doses of her medicine as prescribed, that programme is a form of care “of a less restrictive kind [than a fortnightly depot injection], that is consistent with safe and effective care, is appropriate and reasonably available to [the plaintiff].”

Much depends on whether she can be encouraged, and supported, to adhere to her programme of taking her medication under medical supervision, not necessarily that of the defendant.

There is no evidence before the Court that the plaintiff is currently engaged in aberrant behaviour. She maintains a stable home environment and, since the time that the community treatment order under appeal was made, she has engaged in gainful employment.

There is, of course, no guarantee that she will continue voluntarily to take her medication. However, her intention to do so is not confected, her strong desire to pursue a career (and her apparent ability to do so) provides a strong incentive to maintain good health, and she has a plan for private medical care going forward.

In the absence of any evidence of current aberrant behaviour, I am not satisfied that the plaintiff’s blood test results are sufficient, of themselves, to require that the plaintiff be required to submit to depot injections destructive of her career opportunities. A balance must be struck in the management of risks. On the evidence before the Court I incline to the view that the community treatment order under appeal should be revoked. In forming that view I have noted, particularly, a need for respect for the plaintiff’s civil liberties; an acceptance by a senior representative of the defendant that her mental illness is not presently in an active phase; the lack of any evidence of current aberrant behaviour; the plaintiff’s maintenance of a stable home environment; and her positive engagement with case workers of the defendant in connection with home visits and other pastoral contact.

In my opinion, in the particular circumstances of the present case, a regime of oral medication for the plaintiff is appropriate and reasonably available to her, consistent with safe and effective care, and of a kind less restrictive than a regime of depot injections.

In so far as the defendant lacks the ability, or will, to administer the current treatment plan in a way that accommodates the plaintiff’s reasonable desire to engage in employment, it is not, in my opinion, an appropriate plan. It might, from the perspective of the defendant, be administratively convenient and a means of minimising risks of aberrant behaviour on the part of the plaintiff, but care needs to be taken not to elevate the defendant’s administrative convenience beyond the reasonable; and a risk of relapse must be managed, not used as justification for coercive control of the plaintiff.

In making these observations I should not be taken to be unmindful of the important work undertaken by the defendant or the difficulties inherent in treating a mentally ill person and facilitating management of his or her affairs. On the contrary, the defendant is to be commended for the work it has done in treatment of the plaintiff, and in assisting her to come to a better understanding of her mental health and of a constant need for vigilance in dealing with mental illness. My impression is that the plaintiff has benefitted, particularly, from engagement with, and the encouragement of, the defendant’s caseworkers who have maintained home visits and telephone contact.

What is presently an impediment in the plaintiff’s ongoing treatment appears to be an institutional resistance on the part of the defendant to working with the plaintiff to enable her “to live, work and participate in the community” (to quote section 68(c) of the Mental Health Act) without unnecessary “interference with her rights, dignity and self-respect” (to quote section 68(f) of the Act). Paraphrasing section 68(d) of the Act, care needs to be taken not to impose on the plaintiff a treatment plan governed more by the administrative convenience of service providers than the individual needs of the plaintiff.

I commend to the parties the possibility that by working together, on a voluntary basis, they might devise a programme in which the plaintiff can retain medical professionals of her choice and nevertheless receive, from time to time, the encouragement and support of the defendant’s caseworkers. Small empathetic acts, combined with a weather eye for potential problems, might prove more effective than formal, clinical appointments with battle lines drawn.

Independently of any question of compulsion by law, a regime of “regular supervision” (of oral medication), similar to that proposed by Brereton J in S v South Eastern Sydney & Illawarra Area Health Service and Anor [2010] NSWSC 178 at [38], extracted above, might not be far removed from what is “appropriate” in the circumstances of the present case.

Subject to allowing the parties an opportunity to be heard as to the form of the Court’s orders, and costs, I propose to make orders to the following effect in disposition of the plaintiff’s appeal:

In draft orders 7 and 9 I have proposed to allow for the possibility that the plaintiff may find her way back to the Tribunal, not with the intention of encouraging the defendant to make a fresh application to the Tribunal as a matter of course, but in an endeavour to ensure that whatever is done, or not done, is done in the interests, and for the benefit, of the plaintiff as a person in need of protection.

In reserving to the parties an opportunity to make submissions as to the costs of the proceedings, I draw to attention the fact that, upon the exercise of the Court’s protective jurisdiction, disputed questions of costs are ordinarily determined by reference to the question of what, in all the circumstances, is the proper order for costs, and not by reference to the ordinary rule in civil litigation that costs follow the event: CCR v PS (No 2) (1986) 6 NSWLR 622 at 640.

Approaching the question of costs in that manner, I am presently minded to order that the defendant pay the plaintiff’s costs of the proceedings.

Although the fact that the plaintiff has been successful in the proceedings is not determinative, it remains a factor to be weighed in the balance. The plaintiff had to endure a contested hearing to vindicate her claimed entitlement, albeit an entitlement qualified by a need to consider factors relevant to an exercise of protective jurisdiction. An appellant from the Tribunal who, on reasonable grounds, exercises a right of appeal should not be deterred from doing so by the prospect of an adverse or unfavourable costs order.

Although the defendant’s approach to the proceedings was principled it was not, in my opinion, as nuanced as it could, and should, have been.

The defendant’s costs were incurred in performance of a public function. It should, at least, bear its own costs of the proceedings.

The larger question is whether the defendant should bear the plaintiff’s costs.

In addressing that question, I am mindful of a need not to impose on the defendant a liability for costs which might, from its perspective, be perceived as an unfair burden imposed upon it for performance of its role as the plaintiff’s contradictor. That said, an exercise of the Court’s cost jurisdiction involves no element of penalty. To think otherwise would be incorrect.

In the circumstances of the present case, I am inclined to the view that the costs of the proceedings (including the costs of the plaintiff) are best viewed as an incident of the defendant’s performance of its public functions. The plaintiff acted reasonably in exercising her right of appeal and conducted her case in a manner that was both reasonable and efficient. I am satisfied, in any event, that an order for costs against the defendant in the present proceedings would not act as a deterrent to its ongoing performance of its public functions. That being so, an order that costs follow the event may be the proper order in all the circumstances of the case.

After allowing the parties an opportunity to be heard about the form of dispositive orders, Lindsay J on 2 September 2022 made orders in terms of those proposed in paragraph 180 of the reasons for judgment published that day. His Honour also reserved to the defendant liberty to apply for an order that Order 7 be discharged or varied and reserved all questions of costs.

The parties informed the Court that the plaintiff had recently changed her place of residence beyond the defendant’s district.

On 7 September 2022, after allowing the parties to be heard, Lindsay J made orders and notations to the following effect:

By an email dated 9 September 2022 the office of the Crown Solicitor informed the Court that the parties had agreed, in substance, to substitute for Order 7 the following:

On 13 September 2022 Lindsay J, in chambers, made an order and a notation in those terms.