B v St Vincent’s Hospital Sydney Limited

By a summons filed in the Protective List of the Equity Division of the Court on 9 December 2015, the plaintiff (a self represented litigant) appeals against a Community Treatment Order (of the type defined by section 51, and conforming to the requirements of section 56, of the Mental Health Act 2007 NSW) made by the Mental Health Review Tribunal on 27 November 2015.

The defendant named in the summons is St Vincent’s Hospital Sydney Limited, which administers “The Caritas Centre”, the defendant’s community mental health service, a declared mental health facility.

The order under appeal was based upon, and gave legal force to, a treatment plan dated 26 November 2015 prepared by the professional staff of the defendant. Subject to the outcome of the appeal, it continues to be implemented by the Caritas Centre according to its terms.

The order is due to expire, according to its terms, on 26 May 2016. It requires the plaintiff to submit, inter alia, to monthly depot injections of Paliperidone, an antipsychotic medication.

Reasons for decision published by the Tribunal on 1 February 2016 record that the plaintiff had been admitted to the Caritas Centre on 9 November 2015, on a medical certificate under section 19 of the Mental Health Act 2007, following observations of him at Matthew Talbot Hostel to the effect that there had been a deterioration in his mental state following a pattern of non-compliance with psychiatric medication prescribed for him.

At a mental health inquiry held on 19 November 2015, an order was made that the plaintiff be detained at the Caritas Centre until a date no later than 2 December 2015. An appeal by him, against a refusal to discharge him on 12 November 2015, was dismissed by the Tribunal on 19 November 2015. On 27 November 2015, Dr C (a Consultant Psychiatrist at St Vincent’s Hospital) applied to the Tribunal, on notice to the plaintiff, to discharge the plaintiff on a Community Treatment Order. On that application, the Tribunal made the Community Treatment Order now under appeal.

The Tribunal’s reasons for decision include the following explanation for the order (edited to maintain anonymity):

The Mental Health Act provides two avenues of appeal from the Tribunal’s order: S v South Eastern Sydney and Illawarra Area Health Service [2010] NSWSC 178 at [22]. Section 67, relevantly, provides an appeal “on any question of law or fact arising from the order or its making”. Section 163 provides a right of appeal which, by virtue of section 164(2), is by way of a new hearing.

Because the right of appeal for which section 163 provides appears to be broader than that for which section 67 provides, the parties acquiesced in the plaintiff’s appeal being treated as an appeal under section 163.

In deference to section 162 (which prohibits publication of the names of people involved in proceedings before the Tribunal), pseudonyms are used in this judgment to maintain the anonymity of the plaintiff and others associated with the Tribunal proceedings.

In order: (a) to avoid collateral inquiries about whether the plaintiff is a “person under legal incapacity” within the meaning of section 3(1) of the Civil Procedure Act 2005 NSW, as extended by rule 7.13 of the Uniform Civil Procedure Rules 2005 NSW; and (b) not to subvert the right of appeal for which section 163 of the Mental Health Act provides, I propose, in disposition of the appeal, to order that any requirement for the plaintiff to have a tutor, for the purpose of the hearing and determination of the appeal, be dispensed with: M v Mental Health Review Tribunal and Ors [2015] NSWSC 1876 at [12]-[13], citing P v NSW Trustee and Guardian [2015] NSWSC 579 at [160]-[167].

On the hearing of the plaintiff’s appeal, because the appeal is by way of a new hearing, the defendant bears an onus of establishing its case for a Community Treatment Order, and the Court must consider afresh whether such an order should be made: Z v Mental Health Review Tribunal [2015] NSWCA 373 at [7], [173]-[174] and [181]. The appeal is not a rehearing of the Tribunal’s determination in which the plaintiff bears an onus of establishing error in the decision, or decision making processes, of the Tribunal.

Section 164(5) empowers the Court to hear and decide an appeal with assistance from assessors, should it consider that appropriate. Neither party invited the Court to sit with assessors. The appeal has been heard by me sitting as a judge alone. It is not necessary, or appropriate, to delay a determination of the appeal for the purpose of seeking the assistance of assessors. I have the benefit of medical evidence, all tending in the same direction, and a personal appearance by the plaintiff before the Court.

As confirmed by Z v Mental Health Review Tribunal [2015] NSW CA 373 at [7], the determination of a section 163 appeal requires the Court to be satisfied as to each of the statutory preconditions to the making of a Community Treatment Order, taking into account matters required by the Mental Health Act to be considered.

The matters about which the Tribunal was required to be satisfied in making the order under appeal, and about which the Court must be independently satisfied on appeal if the order is to be allowed to stand, are, essentially, those set out in section 53 of the Mental Health Act.

Before addressing the particular criteria required to be addressed, it is appropriate to say something of the plaintiff’s personal story, and the parties’ shared perception of the central issue to be addressed in determination of the appeal.

The plaintiff was born in 1970 and is presently aged 45 years. In December 1985, aged 15 years, he was involved in a motor vehicle collision as a result of which he suffered brain damage, a frontal lobe injury.

In these proceedings the defendant contends, and the plaintiff denies, that, independently of the brain damage from which he continues to suffer, the plaintiff suffers from a mental illness.

In the parties’ perception, the central issue is whether the plaintiff does suffer from a mental illness or whether aberrant behaviour on his part is no more than a normal incident of the brain damage from which he, admittedly, continues to suffer.

Implicit in this statement of the case is the defendant’s contention, denied by the plaintiff, that the plaintiff needs the current Community Treatment Order if he is to be permitted to live within the general community.

The evidence adduced by the defendant in support of the order under appeal comprises: (a) an affidavit sworn on 15 March 2016 by Dr C; (b) a report dated 16 March 2016 by Dr N, a visiting psychiatrist attached to the psychiatric clinic of Matthew Talbot Hostel; and (c) clinical records of St Vincent’s Hospital relating to treatment of the plaintiff, including a report dated 26 November 2015 prepared by Dr C for presentation to the Tribunal in support of the order presently under appeal.

The evidence adduced by the plaintiff comprised: (a) the three medical reports he had desired to place before the Tribunal on 27 November 2015; (b) a transcript of criminal proceedings before the Supreme Court of the Australian Capital Territory on 30 November 2011 evidencing that, on a charge of damage to property, he was found “not guilty by reason of mental impairment”; and (c) an extract from a publication entitled Brain Damage Medico-Legal Aspects (1994) attributed to the late RWR Parker QC.

The medical reports, apparently prepared in connection with his defence of criminal proceedings, respectively bear the dates 10 April 2012, 14 June 2013 and 6 August 2013.

The evidence adduced by the plaintiff is, in substance, corroborative of the case advanced by the defendant in opposition to the appeal. The plaintiff’s reliance upon it is indicative of the lack of insight attributed to him by more than one doctor over a substantial period of time.

The affidavit of the defendant’s consultant psychiatrist (Dr C) and the report of the plaintiff’s treating psychiatrist at Matthew Talbot Hostel (Dr N) are to similar effect.

For convenience, I set out the following extracts from Dr C’s affidavit (edited in the interests of anonymity):

The plaintiff’s presentation before the Court on the hearing of the appeal was consistent with this portrait of him, save that his demeanour was uniformly quiet, respectful and submissive.

The report of the plaintiff’s treating psychiatrist at the primary health care clinic of Matthew Talbot Hostel (Dr N) is, in substance, in the following terms (again, edited to preserve anonymity):

I accept the evidence of both Dr C and Dr N. I adopt their analyses of the reasons why (to paraphrase section 53(1) of the Mental Health Act) the plaintiff is, as I hold, a person who should be the subject of the order under appeal.

Their evidence carefully addresses each of the criteria which the Court is required by section 53 to consider. The treatment plan for the plaintiff underlying the challenged order is appropriate to the plaintiff’s circumstances and is being implemented in an orderly manner. I am satisfied that no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the plaintiff: section 53(3)(a). I am satisfied that the plaintiff is benefiting, and stands to benefit, from the Tribunal’s order as the least restrictive alternative consistent with safe and effective care: section 53(3)(a). I am satisfied both that the plaintiff has a previous history of refusing to accept appropriate treatment (section 53(3)(c)) and that he is likely to relapse into an active phase of mental illness if the order under appeal were to be set aside (section 53(3A)). I am satisfied that the unexpired duration of the order under appeal is appropriate for stabilisation of the conduct of the plaintiff, and (re)establishment of a therapeutic relationship between the plaintiff and his psychiatric case manager: section 53(7).

In expressing my satisfaction on these points I notice that the protective care of service providers, bound to advance his welfare and interests as the (or, at least, a) paramount consideration, continues to surround the plaintiff’s daily life: Mental Health Act, sections 3, 68 and 105; A (by his tutor Brett Collins v Mental Health Review Tribunal (No 4) 2014 NSWSC 31 at [116]-[117], [123]-[125], [145]-[147] and [164].

Having made fresh, substantive determinations required of the Court under the Mental Health Act in determination of the plaintiff’s appeal, the appropriate form of order for disposition of the appeal is an order that the appeal be dismissed.

Accordingly, I make the following orders: