M v Mental Health Review Tribunal and Others

On 23 September 2015 the plaintiff (a self-represented litigant) filed a summons in the Protective List of the Equity Division of the Court, naming as defendants: The Mental Health Review Tribunal (the first defendant); Sydney Local Health District (the second defendant); Janssen-Cilag Pty Limited Pty Limited (the third defendant); and Johnson & Johnson Pty Limited (the fourth defendant).

The relief claimed in the summons includes:

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

If there is a common thread in the summons, as explained by the plaintiff in submissions in support of the summons, it is that the plaintiff contends that:

The plaintiff’s claims for compensation appear, from his summons and his supporting affidavit, to be based largely upon steps taken by him: (a) unsolicited, to deliver “alternative therapy” materials (including a CD about “sublimation” therapy as an alternative to medication for treatment of mental illness, and literature about alternative therapy strategies) to the NSW Department of Health, and to claim remuneration for doing so; and (b) unilaterally, to impose on those who treat him a wager (his oft-repeated “civil bet”), for increasingly large amounts, that he is not mentally ill.

The amount of compensation claimed by the plaintiff is said by him, in his summons and his affidavit, initially to have been for a sum of $500 million but recently to have been raised to $2 billion “to be earmarked for worthy causes”.

More modest, but still patently exaggerated, claims for remuneration are made by the plaintiff in his affidavit. At different points he claims a fee of $25,000, $50,000, $100,000 or an hourly rate of $1,000 for submitting to an injection, or attending upon those responsible for administration of those injections and monitoring his health. His affidavit annexes a spreadsheet in which he calculates an alleged entitlement to $405,423.00.

Having been subject to Community Treatment Orders under the Mental Health Act since at least 2008, and generally having submitted to them, the plaintiff decided that he would not submit to the current order. This is because, he believes, to submit would be to act inconsistently with his claim to have won his “civil bet”, and his underlying contention that he suffers from no mental illness.

He sees his appeal as a means of vindication of his claim that, but for the administration of anti-psychotic medication, he suffers no mental illness, and as confirmation of his contention that he has won his “civil bet” against all and sundry, not limited to the second defendant.

Shortly after the summons was filed, the first defendant filed a submitting appearance. It is not a necessary party to the plaintiff’s appeal, the immediate subject of the present judgment. The plaintiff’s true contradictor is the second defendant, which accepts responsibility for conduct of the case advanced against the plaintiff on the hearing of the appeal.

When the summons came before me as the Protective List judge on 7 December 2015:

I ordered that any requirement for the plaintiff to have a tutor for the purpose of the hearing and determination of his appeal be dispensed with because to engage in a collateral inquiry about whether he is a “person under legal incapacity” (within the meaning of the definition of that term in section 3(1) of the Civil Procedure Act 2005 NSW as extended by UCPR rule 7.13) would be to invite satellite litigation which could subvert the right of appeal for which section 163 of the Mental Health Act provides.

In P v NSW Trustee and Guardian [2015] NSWSC 579 at [160]-[167] I took a similar approach to the question whether a “protected person” who had appealed from a financial management order made by the Guardianship Division of the NSW Civil and Administrative Tribunal (“NCAT”) required a tutor. Allowing for differences in legislative context, the interests of justice in the present case require that the Court proceed to determination of the plaintiff’s appeal without pausing to inquire about his competency to conduct the appeal on his own account.

Different considerations are likely to apply in the conduct of the balance of the plaintiff’s summons. Compare A v A [2015] NSWSC 1778 and cases (including Gibbons v Wright (1954) 91 CLR 423 at 434-438, Murphy v Doman (2003) 58 NSWLR 51 at 58 and Mao v AMP Superannuation Limited [2015] NSWCA 252) there discussed.

Urgency attaches to the hearing of the appeal for three reasons. First, the plaintiff has not submitted to implementation of the Community Treatment Order under appeal, with the consequence that he has not, in a timely manner, received the anti-psychotic medication which the second defendant contends is critical to his well-being. Secondly, during the pendency of the appeal, the second defendant has been unable, effectively, to enforce the Community Treatment Order through the agency of the NSW Police Force. Thirdly, the Community Treatment Order expires on 26 February 2016.

The Plaintiff’s Reliance upon Notices to Admit. With the consent of the plaintiff and the second defendant, the second defendant’s notice of motion was treated as an incident of the hearing of the plaintiff’s section 163 appeal.

The crux of the procedural issue relating to the plaintiff’s Notices to Admit is that the plaintiff contends that, because the second defendant did not, within the time limited by the UCPR, serve upon him a “Notice Disputing” the “facts” it was called upon to admit, it must be taken to have admitted for the purposes of these proceedings the facts which he called upon it to admit.

In his submissions in support of the appeal the plaintiff contends that, upon the proper construction of his Notices to Admit, the second defendant must be taken to have admitted that he does “not have a mental illness or mental disorder as anyone with proper training knows”. The second defendant disputes the validity of the Notices which, nevertheless, I assume to be valid.

In addressing criteria for which the Mental Health Act provides on the hearing of the plaintiff’s appeal, I am not bound simply to act upon any “admission” made by the second defendant, by operation of rules of court, arising from a failure to dispute a “fact” in respect of which the plaintiff sought an admission. The Court is entitled, if not bound, to have regard to, and to make findings of fact based upon, evidence as to the true facts: Termijtelen v Van Arkel [1974] 1 NSWLR 525; Damberg v Damberg (2001) 52 NSWLR 492 at 519[153] and 522[160]. Even if material “admissions” have been made by a party, the Court is not obliged (by UCPR rule 17.7 or otherwise) to give a judgment, or make an order, based upon those admissions.

The Court is bound, in the proper administration of justice, to exercise an independent judgement in the exercise of a statutory jurisdiction for which the Mental Health Act provides. There is a public interest element in the making, refusal or appellate review of a Community Treatment Order that cannot, and should not, be displaced by a forensic slip on the part of a party in an untimely response to a Notice to Admit. I proceed to determine the appeal on the evidence, disregarding any “admission” arising from service of the plaintiff’s Notices. The evidence of mental illness is compelling. It cannot be disregarded.

The Nature of the Plaintiff’s Appeal. The Community Treatment Order affecting the plaintiff is susceptible to an appeal to the Court under either section 67 or section 163 of the Mental Health Act (S v South Eastern Sydney & Illawarra Area Health Service [2010] NSWSC 178 at [22]); but the right of appeal conferred on the plaintiff by section 163 appears to be broader than that for which section 67 provides and, with that in mind, the plaintiff and the second defendant agreed (and I accepted) that the plaintiff’s appeal should be treated as an appeal under section 163.

By virtue of section 164 of the Mental Health Act, an appeal to the Court is a hearing de novo (a new hearing) , in which the second defendant accepts that it 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, not a re-hearing of the Tribunal’s determination in which the plaintiff bears an onus of establishing error in the decision, or decision-making process, of the Tribunal: Z v Mental Health Review Tribunal [2015] NSWCA 373 at [7], [173]-[174] and [181]; S v South Eastern Sydney & Illawarra Area Health Service [2010] NSWSC 178 at [22].

Section 164(5) empowers the Court to hear and decide on appeal with assistance from assessors, should it consider that appropriate. No party invited the Court to sit with assessors. The appeal proceeded before me sitting as a judge alone. I do not consider it necessary, or appropriate, to seek the assistance of assessors. I have the benefit of a substantial amount of evidence, and substantial submissions, bearing upon the questions for determination. I have been invited, moreover, to determine the appeal on an urgent basis.

In order to determine a section 163 appeal, 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].

Statutory Pre-Conditions to the Making of a Community Treatment Order. The matters as to which the first defendant was required to be satisfied before making a Community Treatment Order affecting the plaintiff, and of which the Court must be satisfied on appeal if the order is to be allowed to stand, are, essentially, those set out (with emphasis) in the following provisions of section 53 of the Mental Health Act:

The evidence adduced on the hearing of the appeal, without objection, comprised: a lengthy affidavit sworn by the plaintiff on 18 November 2015; an affidavit by Dr J, a consultant psychiatrist (employed by the second defendant) under whose care the plaintiff has been since September 2014; the Notices to Admit relied upon by the plaintiff; a transcript of the hearing of the first defendant on 26 August 2015 which culminated in the Community Treatment Order under appeal; and supplementary oral evidence given by Dr J.

Dr J was cross examined by the plaintiff.

The plaintiff was not cross examined on his affidavit because, from the bar table, he freely admitted points sought to be made by the second defendant: First, his position is that he does not suffer from any mental illness other than the mental illness he refers to Risperditis. Secondly, he is not willing to take any anti-psychotic medication voluntarily.

The plaintiff described as “fairly correct” my a summary of his case: He says he does not suffer from any mental illness, but he does suffer from the side-effects of medicine forced upon him by the State.

The second defendant contends that the statutory pre-conditions to the making of a Community Treatment Order have been established by evidence adduced on the hearing of the appeal; and that the Court, for the benefit and, in the best interests, of the plaintiff, should make fresh findings in support of the continuing operation of the Community Treatment Order.

Each party relied upon detailed written submissions, supplemented by short oral submissions largely confined to highlighting points more particularly made in the written submissions. Their respective affidavits each annex, or exhibit, a substantial amount of primary documentation charting events going back many years and a continuous relationship extending over several years. The plaintiff and the second defendant are well known to one another.

I accept the evidence of Dr J, his medical expertise, his clinical assessment of the plaintiff and his judgement of what treatment is required for the benefit, and in the interests, of the plaintiff.

In his presentation of his own case on the hearing of the appeal, the plaintiff exhibited quiet confidence in his own judgement; an associated confidence in the correctness of his written material (principally, his affidavit and written submissions but also, implicitly, his summons); and a calm, mild demeanour. In his cross examination of Dr J, having confronted Dr J on the central question (whether or not he suffers from mental illness), he appeared content to accept that he and Dr J simply have to agree to disagree.

The plaintiff lacks insight into his medical condition. Quite apart from the evidence adduced by the second defendant, that is apparent on an objective reading of his own written material.

In his affidavit he describes his occupation as that of a “Treatment Alternatives Advocate and Specialist”, and (in paragraph 2) he says of himself:

The plaintiff’s grandiose view of himself is an example of him speaking through an illness characterised by a lack of personal insight.

The plaintiff’s reference to section 68(e) is a reference to section 68 of the Mental Health Act, which (with emphasis added) is in the following terms:

Section 68(e) is a provision of the Mental Health Act commonly referred to by the plaintiff in his written materials, including correspondence with the second defendant and others.

Other provisions of the Act to which he particularly refers in his materials include sections 85 and 195, the latter of which also refers to sections 3 and 105. On 2 November 2015 he wrote to the NSW Government complaining of the “paralysing effect” of section 195 on his work of promoting “a pluralistic, holistic approach to mental health” and compelling compliance with the protective objects of the Mental Health Act.

Sections 3, 68 and 105 confirm (subject to section 195) the purposive, protective character of the legislation. Sections 3, 105 and 195 are in the following terms:

The plaintiff’s objection to the compulsory administration of anti-psychotic medication finds a more concrete reflection in his citation of section 85. It is in the following terms:

This collection of legislative provisions is interwoven in the plaintiff’s protests against characterisation of him as “mentally ill” and the forced administration of anti-psychotic medication. He correctly perceives the purposive, protective character of the Mental Health Act (operating in tandem with the Court’s inherent, protective jurisdiction described in Marion’s Case (1992) 175 CLR 218 at 258-260), but he cannot see how a need for a community treatment order could possibly apply to him.

In elaboration of the case, reference needs also to be made to the definition of “mental illness” in section 4(1) and the provisions of sections 14, 15 and 16 of the Mental Health Act:

Express reference to these provisions is necessary because:

On my reading of the evidence, the plaintiff’s commitment to nudism is, in and of itself, of no moment. The substantive point made in clinical notes relating to the plaintiff (which, independently, I make) is that his public appearances as a nudist in 2008 and 2010 are evidence of a loss of inhibition in social relationships, a factor that may bear upon how others react to him. A failure on his part to appreciate this is part of a larger problem, a lack of insight, that continues to plague him.

The plaintiff was born in 1953 and is presently aged 62 years.

In his affidavit account of his life, he appears to suggest that he has been engaged with mental health professionals, on and off, since about the age of eight years, but has never been in need of mental health treatment.

He says that he suffered a personal injury in 1963, as a consequence of which he became engaged in court proceedings which first introduced him to legal processes, from which he is now no stranger.

He also says that, having qualified as a primary school teacher in 1974, he taught consecutively in two public schools until 1979, since which time he claims to have lived in semi-retirement. In about 1978, with the assistance of an unnamed lady, he started a restaurant and dining club for “singles”, a venture with which he still works on a weekly basis. He speaks, also, of other business ventures including, relevantly, a business of promoting “subliminal medication CDs” and “many other neglected [mental health] treatment alternatives”.

He says that, in 1997, “I found my way into staying at the Cummins Unit at Royal North Shore [Hospital] to which an informative caller on the phone had directed me, should I need a break from my legal matters, advising that one could stay in Mental Health facilities for free in times of stress”.

I infer, from the affidavit, that about that time he was diagnosed as suffering from a mental illness, leading (he suggests) to his capture by a health system which (he contends) has held him in its grip by the administration of anti-psychotic medication.

By reference to clinical records, Dr J records that the plaintiff has been subject to Community Treatment Orders under the Mental Health Act since at least 2008. This is consistent with the plaintiff’s own evidence.

Clinical records suggest that the plaintiff suffered his first psychotic episode in 1997 at Royal North Shore Hospital (where, it must be recorded, he is said to have suffered a serious overdose of anti-psychotic medicines that required corrective treatment). In 2001-2002 he was admitted to Rozelle Hospital, and treated with ECT, on two separate occasions. He was psychiatrically stable, on oral Risperidone, between 2002-2008. He was admitted to hospital for treatment, relapses associated with non-compliance with treatment regimes, in 2008, 2010, 2013 and 2014. Depot injections appear to have been introduced as part of his routine treatment in 2014.

Between late August and early September 2014 he was treated as an inpatient in the mental health facility at Concord Repatriation General Hospital. The discharge summary relating to that period records the following “Summary of Care” (with editorial revision designed to preserve the plaintiff’s anonymity):

Following his release from Concord Hospital, on 25 February 2015 the first defendant made a Community Treatment Order (substantially similar to the one presently under appeal) expiring on 24 August 2015.

On 8 August 2015 he was served with an application to the first defendant for a fresh Community Treatment Order, based upon a Treatment Plan dated 7 August 2015 that proposed that he continue treatment with anti-psychotic depot injections and case management meetings every two weeks (with a review at least every three months) under the supervision of Dr J.

He attended the first defendant’s hearing of that application on 26 August 2015, and made written and oral submissions consistent with those made to the Court in the course of the present appeal. His psychiatric case manager (a registered nurse) is recorded in the transcript as having reported to the first defendant in the following terms (with editorial revision in the interests of anonymity):

In the evidence he gave on the hearing of the current appeal, Dr J confirmed that, in his opinion: (a) the plaintiff has a schizoactive disorder, which is a recurring and remitting major mental illness with, in his instance, a high level of interepisodic functioning; and (b) anti-psychotic medication is an important element of a relapse prevention strategy for management of the plaintiff’s health.

In Dr J’s opinion, given the nature of the plaintiff’s illness and his refusal to take medication voluntarily, a periodic depot injection is critical. He opined, correctly, that it is highly unlikely that the plaintiff will take oral anti-psychotic medication voluntarily, or present voluntarily for depot injections.

Dr J’s affidavit includes the following passages (with editorial revision to preserve anonymity):

During the course of his cross examination, Dr J confirmed that, in the ordinary course of the plaintiff’s treatment, the second defendant had offered, and discussed with, him alternative treatments, including participation in life skills groups and assistance in procuring employment.

I accept this evidence and the correctness of the opinions expressed by Dr J. They are consistent with my reading of the primary documentary materials before the Court, and an objective assessment of the plaintiff’s own evidence.

Stated in terms responsive to the plaintiff’s own statement of the central question for determination by the Court, I am persuaded by the evidence to find that he has lost his “civil bet”: I find, as a fact, that he does suffer from mental illness, and (in terms of section 53(1) of the Mental Health Act) he is a person who should be subject to the Community Treatment Order under appeal.

By further reference to section 53 of the Mental Health Act, I make the following determinations (substantially for the reasons enunciated by Dr J):

The second defendant, correctly, disclaims need of a formal finding under section 53(4) that the plaintiff is a mentally ill person. The Community Treatment Order under appeal was not sought, or made, at a “mental health inquiry”: cf, section 51(5). It is not a condition precedent to the making of a Community Treatment Order in this case that the plaintiff be found to be a mentally ill person. Cf, Harry v Mental Health Review Tribunal and Anor (1994) 33 NSWLR 315.

In cross examination, Dr J accepted that some people have side effects to Risperidone and that the second defendant is obliged to provide treatment alternatives for the plaintiff. It is in that context, and not in disregard of it, that he expressed his opinion (which I adopt) that the treatment plan prepared for the plaintiff is the least restrictive kind of care, consistent with safe and effective care, that is appropriate, reasonably available and beneficial to the plaintiff.

In my assessment of the evidence, significantly including that of the plaintiff himself, I am, in my opinion, compelled to find that he suffers from a mental illness (a schizoaffective disorder), not a product of any anti-psychotic medication, but one which, despite any side-effects attending its administration, alleviates the destructive effects of his illness.

In deciding, as I do, that the plaintiff is a person who should be the subject of the Community Treatment Order under appeal, I am mindful of the intrusive effect of such an order on his civil liberties. It is because of that effect that parliament has laid down conditions for the making of a community treatment order: Z v Mental Health Review Tribunal [2015] NSWCA 373 at [35].

The common law has an entrenched concern for the protection of civil liberties in the provision of medical treatment. The norm is that a prerequisite for 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 498. 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 322D-323B, 332G-333F and 334B-335D; Z v Mental Health Review Tribunal [2015] NSWCA 373 at [35]; A (by his Tutor Brett Collins) v Mental Health Review Tribunal (No. 4) [2014] NSWSC 31 at [124]-[125]. Each case must be decided on its own facts and by reference to the governing law (in this case, the Mental Health Act, particularly sections 51, 53, 163 and 164).

Although the plaintiff has a strong conviction that the administration of anti-psychotic medication is, at best, a placebo and, at worst, itself a cause of mental illness, the evidence before the Court demonstrates that he has need of such medication; administered in a regular way, it works beneficially upon his health and, absent regular administration of it, his health is adversely affected.

It is in these circumstances, and finding that the plaintiff suffers from a mental illness that impairs his judgement, I conclude that he is a person in respect of whom the Community Treatment Order under appeal should be made.

By all reports, those treating the plaintiff, and making decisions affecting his welfare, can see in him a goodness which all hope to nurture. I encourage him to accept this, and the aid offered to him by his doctors and nurses, without thinking combatively in terms of a wager, a “civil bet”.

Those in whose care he is, mindful of the protective character of the work to be done, are decidedly not engaged in a contest against him but are, rather, standing in his corner. Standing with him, urging him on in a common fight for him to be as well as he can be, in the larger contest of life in which we are all, without exception, engaged.

Let there be no “winners and losers” on a “civil bet” but only an ongoing, common search for constructive solutions to life’s ever-present, personal challenges. A major challenge for everybody, never easy for anybody despite outward appearances to the contrary, is to be the best that we can be. The plaintiff plainly has much to offer for the benefit of himself and others. He needs, however, to accept that, independently of the effects of medication from time to time prescribed for him, he does have a mental illness that impairs his judgement, and requires professional medical treatment.

The fresh, substantive determinations required of the Court under the Mental Health Act having been made, the appropriate form of order for disposition of the appeal is simply an order that the appeal be dismissed.