SMF v South Western Sydney Local Health District

By a summons filed on 8 January 2018, the plaintiff (a person who has been diagnosed as suffering from schizophrenia) appeals from a community treatment order made against her by the Mental Health Review Tribunal (pursuant to section 51, in Part 3 of Chapter 3, of the Mental Health Act 2007 NSW) on 12 October 2017.

The respondent to the appeal (the defendant) is a local health district constituted as a body corporate by section 17 of the Health Services Act 1997 NSW in respect of an area which (by operation of section 18 of the Act) includes Campbelltown in the western suburbs of Sydney.

The defendant is responsible for management of the Campbelltown Community Mental Health Service, which is a “declared mental health facility” for the purpose of the Mental Health Act 2007, section 109.

The application made under section 51 of the Mental Health Act for a community treatment order in respect of the plaintiff was made by an authorised medical officer of the Campbelltown Mental Health Service.

Extracted in a Schedule to these Reasons for Judgment is an extract of the principal provisions of the Mental Health Act to which reference is made in the judgment, together with other, contextual provisions.

The determination of the Tribunal to make a community treatment order on the defendant’s application provides for an order which is expressed (in conformity with section 56 of the Mental Health Act) to expire on 11 April 2018.

The community treatment order made by the Tribunal incorporates a treatment plan (of the character described in section 54 of the Mental Health Act) dated 11 October 2017.

That plan imposes on the plaintiff an obligation (made explicit by section 57(1) of the Mental Health Act) to submit to a regime of medical treatment, required to be implemented by the defendant, involving:

The community treatment order, incorporating the treatment plan, authorises medication of the plaintiff by administration of a depot injection (that is, an “IMI” or intra-muscular injection).

There are two avenues for an appeal from a community treatment order. Section 67 of the Mental Health Act provides, inter alia, for an appeal “on any question of law or fact arising from the order or its making”. Section 163 (read with section 164) provides for an appeal by way of a new hearing. The latter form of appeal is generally regarded as providing a broader right of appeal than the former: S v South Eastern Sydney & Illawarra Area Health Service [2010] NSWSC 178 at [22]; M v Mental Health Review Tribunal [2015] NSWSC 1876 at [21]; B v St Vincent’s Hospital Sydney Ltd [2016] NSWSC 392 at [8]-[9].

It is agreed between the parties that the present proceedings are to be regarded as an appeal governed by sections 163-164 of the Mental Health Act.

That carries the consequence that the plaintiff’s contradictor, the defendant, accepts that:

On the hearing of a section 163 appeal, the Court may be assisted by assessors: sections 164(5)-(6). Neither party to the proceedings invites the Court to seek that assistance. Nor is it necessary, or desirable, for a proper disposition of the appeal that assistance be sought from assessors. Accordingly, the appeal is to be determined by the Court constituted by a judge sitting alone.

In character, proceedings under Part 3 of Chapter 3 of the Mental Health Act are essentially proceedings protective of the plaintiff.

In determination of the appeal the Court is bound to have regard, not only to the particular criteria for which section 53 of the Mental Health Act provides, but also to:

In the current proceedings, the fact that the plaintiff is a person in need of protection is confirmed by the subsistence of orders made by the Guardianship Division of the Civil and Administrative Tribunal of NSW (NCAT), under the Guardianship Act 1987 NSW, appointing:

NCAT’s guardianship order was made on 15 November 2017, upon an application by an officer of a mental health unit of Campbelltown Hospital. It was made, as a continuing guardianship order, for a period of 12 months from that date.

NCAT’s financial management order was made, on 13 December 2017, upon an application by the plaintiff’s father. As is customary, it was made for an unspecified, indefinite duration.

The guardianship order limits the respective functions of the plaintiff’s father and the Public Guardian as follows:

I read the consultation order as one that requires the plaintiff’s guardians to obtain and consider her views before making significant decisions. As a matter of practice, an antecedent requirement of any significant decision by either guardian might reasonably be expected, so far as may be practicable, to involve collaboration between the guardians and the plaintiff personally.

The plaintiff’s appeal was the subject of a pre-trial directions hearing before me on 5 March 2018. The appeal was heard by me on a final basis on 9 March 2018, allowing for supplementary written submissions subsequently to be filed.

A representative of the Public Guardian attended the pre-trial directions hearing, but not the final hearing. At the final hearing, the defendant read an affidavit which deposed to a conversation between a solicitor having carriage of the proceedings on behalf of the defendant and a senior officer of the Public Guardian in which the Public Guardian authorised the solicitor to communicate to the Court the following statement about the practice of the Public Guardian in a case such as the present one:

This statement was proffered as a statement of practice, not a statement of law. As a matter of statutory construction, one of the questions for determination in the proceedings is the relationship between a community treatment order and a guardianship order involving a healthcare function.

Neither party to the appeal contended that the nature of the appeal required the Public Guardian to be a party to the proceedings or otherwise to be represented on the hearing of the appeal. Nor was there any suggestion that the NSW Trustee was a necessary or proper party, or that it should be consulted on the hearing of the appeal.

Under the legislation governing them, each of a financial manager (by virtue of section 71 of the NSW Trustee and Guardian Act 2009 NSW) and a guardian (by virtue of sections 21, 21A and 21C of the Guardianship Act) has a degree of power that supplants that of the person under protection. The power of a protected person to deal with his or her estate is suspended in respect of so much of that estate as is the subject of a financial management order. Subject to any conditions specified in a guardianship order, the guardian of a person under guardianship has power, “to the exclusion of any other person”, to make decisions, take actions and give consents that could be made, taken or given by the person under guardianship if he or she had the requisite legal capacity.

Although a financial manager and a guardian have overlapping areas of concern that require them each to be mindful of the other’s field of operation, a financial manager’s primary concern is with the estate (property) of a person in need of protection whilst that of a guardian is the person’s person.

In proceedings such as the present, in which an appellant seeks relief essentially protective in nature and the appellant’s contradictor is a body corporate charged with protective functions, a concern of the Court is to ensure that the proceedings are constituted, and conducted, in a manner consistent with the jurisdiction to be exercised. That requires an appreciation of the legal, and administrative, framework within which the proceedings are located.

In this case, each of the NSW Trustee and the Public Guardian is available to provide assistance to the Court, and to the parties, if assistance be required. However, neither is a necessary party to the appeal. The defendant serves as the plaintiff’s contradictor and, represented by the NSW Crown Solicitor’s Office, it possesses the requisite capacity for performance of executive functions necessary to aid the plaintiff in prosecution of her appeal, reinforced by the onus borne by the defendant to demonstrate why a community treatment order should continue to operate.

The plaintiff’s father attended both the pre-trial directions hearing on 5 March 2018 and the final hearing on 9 March 2018. He was allowed an opportunity to participate in the proceedings on both occasions, and he did so without cutting across either the plaintiff (who appeared without representation at the directions hearing and with pro bono counsel at the final hearing) or her counsel. On both occasions he quietly interacted with the plaintiff, in a manner consistent with his roles as her father and principal carer, as she wandered in and out of the court room, constantly restless and apparently in a world of her own. For the final hearing he also provided an affidavit (sworn on 7 March 2018) in which he helpfully explained his daughter’s personal circumstances.

The formal status of the guardianship order affecting the plaintiff is open to debate. That is because in separate proceedings (numbered 2018/00010914) the plaintiff, by a summons filed by her as a litigant-in-person on 11 January 2018, appears to have appealed against NCAT’s guardianship order.

I say “appears” because the summons is open to being read, not as an appeal against NCAT’s guardianship order, but merely as an “appeal” against a decision taken by the Public Guardian (at about the time the summons was filed) to move the plaintiff’s place of residence from her family home (where she lived with her father and a younger brother) to a “group home” designed, inter alia, to provide her father with respite. Aged 64 years and living in retirement, he has borne the burden of caring for the plaintiff (now aged 34 years) since the death of his wife, her mother, in 2005. He is conscientiously attentive to the needs of his daughter, but he is in ill health and exhausted.

The NCAT appeal was not listed for hearing with the present proceedings. Having taken instructions from her at my invitation, the plaintiff’s counsel announced that she had no instructions to appear for the plaintiff in the NCAT appeal. That appeal presently stands listed for directions on 26 March 2018.

If (as it can be) the NCAT appeal is construed as an appeal against the guardianship order made by NCAT, and not merely a challenge to an accommodation decision made by the Public Guardian, pendency of the appeal operates (subject to any interlocutory order made by the Court) as a stay of the decision under appeal: Civil and Administrative Tribunal Act 2013 NSW, schedule 6, clause 14(5). No interlocutory order having been made to remove the stay, the guardianship order is at least arguably the subject of a stay.

As a practical matter, nothing of real consequence turns on this. That is because:

By virtue of her status as a “protected person”, the plaintiff is a “person under a legal incapacity” within the meaning of section 3(1) of the Civil Procedure Act 2005 NSW.

As a “person under legal incapacity”, the plaintiff cannot commence or carry on proceedings except by a tutor (Uniform Civil Procedure Rules 2005 NSW, rule 7.14) unless (pursuant to section 14 of the Civil Procedure Act 2005) the Court dispenses with the requirement for a tutor.

The practice of the Court in a case such as the present one, followed on this occasion, is to dispense with any requirement for a tutor lest the efficacy of the appeal be undermined by a need to find a person willing and able to act as a tutor or deflected by collateral inquiries about the appellant’s capacity for self-management: M v Mental Health Review Tribunal [2015] NSWSC 1876 at [12]; B v St Vincent’s Hospital Sydney Ltd [2016] NSWSC 392 at [11].

Counsel who appeared for the plaintiff on the hearing of the appeal, and who had opportunities to take instructions from both the plaintiff and the plaintiff’s father, informed the Court that she was comfortably satisfied about the ability of the plaintiff to communicate instructions required for the conduct of the proceedings.

Counsel appeared for the plaintiff, as part of the NSW Bar Association’s Pro Bono Scheme, in response to an order made by Slattery J, as Duty Judge, on 12 February 2018 pursuant to the Uniform Civil Procedure Rules 2005, rule 7.36. His Honour was satisfied, in the terms of that rule, that it was in the interests of the administration of justice that the plaintiff be referred to the Registrar for referral to a barrister or solicitor on the Pro bono Panel for legal assistance: A Duty List Plaintiff v A Local Mental Health Service [2018] NSWSC 96. I acknowledge, with gratitude, the assistance of counsel in determination of the proceedings.

On the hearing of the appeal, counsel for the plaintiff invited the Court to address each of the following issues:

The first issue. In her supplementary written submissions counsel for the plaintiff expressly withdrew her submission that it was necessary for the Tribunal, and in turn the Court, to determine that the plaintiff is a “mentally ill person” (within the meaning of section 14 of the Mental Health Act) as a pre-requisite to making the community treatment order under appeal. The plaintiff accepts that the order under appeal was not made at a “mental health inquiry” (as defined in section 4 of the Mental Health Act) so that section 53(4) of the Act was not engaged. Whether the plaintiff suffers a “mental illness” within the meaning of section 4 remains relevant to an exercise of the discretion to make a community treatment order, but a finding that the plaintiff was a “mentally ill person” is not a pre-condition to an order being made. Accordingly, the first of the three specified issues can be taken to have been qualified, if not withdrawn. Counsel concedes that the plaintiff has been correctly diagnosed as suffering from schizophrenia, plainly a form of mental illness.

In fact, she has been diagnosed as suffering from “treatment resistant schizophrenia”, a diagnosis adopted when two or more antipsychotic medications for adequate dose and adequate duration have been tried without an adequate response. In earlier days, she was treated with Clozapine (an oral medication) but that treatment was discontinued as she was non-compliant with tablets, which she would not take, and the medication does not come in injection forms. A necessity for administration by depot injection governed a switch to risperidone.

The second issue. The key question that arises under the rubric of the second issue is whether the dosage of risperidone currently being administered to the plaintiff under the treatment plan is too high to be of benefit to her. The treatment plan provides for 50 mg to be administered every two weeks.

The evidence of the plaintiff’s father (not medically qualified) is that, although he has always thought it was a good idea that the plaintiff be on a community treatment order (because otherwise, in his assessment, she would not take any medication), he believes her to be at her best when the medication administered to her is limited to 25 mg of risperidone; his personal view, based on his experience of the plaintiff, is that any higher dosage subjects the plaintiff to side-effects that make her “unbearable to live with”.

The third issue. A determination of the third issue requires an assumption (not unreasonable notwithstanding uncertainty about the status of the plaintiff’s NCAT appeal) that both NCAT’s guardianship order and the Mental Health Review Tribunal’s community treatment order are currently operative.

The only controversial aspect of the plaintiff’s current treatment plan is the dosage of risperidone to be administered. No objection is taken to the requirement that the plaintiff attend for a review of her case at least once every four weeks or the requirement that she meet with a counsellor at least weekly.

There is no dispute that the plaintiff has a history of subjection to community treatment orders over several years.

Athough the current proceedings have been the subject of several directions hearings (before Black J as Duty Judge on 8 and 11 January 2018 and before Slattery J, as Duty Judge, on 12 and 22 February 2018 before the directions hearing before me on 5 March 2018) at no time has an interlocutory injunction been made to restrain the defendant from implementation, or purported implementation, of the community treatment order under appeal. Under her father’s paternal supervision, the plaintiff has, in substance, complied with the terms of the community treatment order.

Her next injection of risperidone is imminent. The psychiatrist entrusted by the defendant with treatment of the plaintiff (Dr HS) anticipates that a 50 mg dose of risperidone will be administered on that occasion; but, in consultation with the plaintiff and her father, he has during the currency of the community treatment order under appeal, administered doses of 37.5 mg and 25 mg as to him, upon a proper exercise of medical judgement, seemed appropriate to the plaintiff’s then circumstances.

On the hearing of the appeal, counsel for the plaintiff read a formal affidavit affirmed by the plaintiff on 4 January 2018 (in which she simply asserted that she is “not in need” of the community treatment order under appeal) and the affidavit of the plaintiff’s father sworn on 7 March 2018. Both deponents were available for cross examination. In light of the evidence given by the defendant’s principal witnesses, and cross examination of them on behalf of the plaintiff, neither was cross examined on behalf of the defendant.

Accepting responsibility for carriage of the appeal, the defendant read two affidavits affirmed by Dr HS (the first on 21 February 2018, the second on 8 March 2018); an affidavit (affirmed on 21 February 2018) by an occupational therapist working as the plaintiff’s case coordinator for the defendant; and the solicitor’s affidavit (earlier extracted) deposing to contact with the Public Guardian. Dr HS and the plaintiff’s case coordinator were both cross examined (the former at length), by counsel for the plaintiff, by telephone.

Various documents (principally medical records) were admitted into evidence as exhibits, and were the subject of cross examination of the defendant’s witnesses.

No objections were taken to any of the evidence adduced on the hearing of the appeal. In particular, the expertise of Dr HS was not challenged.

No submission was made impugning the credit of any person who gave evidence in the appeal.

There was little factual dispute between the parties bearing upon the nature of the plaintiff’s medical condition or the history of her treatment.

I adopt as factually correct, and as expressing soundly-based medical opinions, the following evidence of Dr HS (with editorial adaptation):

From his perspective as her carer, the plaintiff’s father (without medical expertise) tells much the same story, but accentuates the positive. His affidavit includes the following passages (with editorial adaptation):

In his dealings with the plaintiff and her father, Dr HS has manifested a preparedness to review and adapt the plaintiff’s treatment. In the second of his affidavits, he explained his approach thus:

This approach is consistent with the statutory obligations of a medical practitioner governed by the Mental Health Act. Section 85 of the Act provides, for example, that “[a] medical practitioner must not, in relation to any mental illness or mental condition or suspected mental illness or mental condition, administer, or cause to be administered to a person a drug or drugs in a dosage that, having regard to professional standards, is excessive or inappropriate.

In light of the evidence I have described, and in response to the first of the issues identified for the Court’s determination, I find that the plaintiff is “mentally ill” within the meaning of the Mental Health Act and that she is a person for whom a community treatment order should be made. To the extent that some of the symptoms of schizophrenia are under control, I attribute that to her ongoing treatment, a lapse of which has historically been associated with a relapse in the plaintiff’s mental condition.

In response to the second issue identified for determination, I find, subject to one point of clarification, that the treatment plan dated 11 October 2017 (which was before the Tribunal on 12 October 2017) is an appropriate treatment plan that will benefit the plaintiff.

The point of clarification is that, in my opinion, under that treatment plan, it is open to Dr HS as the nominated treating doctor/psychiatrist (or delegate) to titrate the dosage of risperidone administered to the plaintiff (in order to maximise the benefits to her, and to minimise side-effects) in accordance with standard medical practice, paying due regard to the statutory obligations (including the obligation for which section 85 provides) of a medical practitioner governed by the Mental Health Act.

The plan does not confer on any officer of the defendant, let alone the treating doctor/psychiatrist, an unconfined discretion in the prescription and administration of medication affecting the plaintiff. The treating doctor/psychiatrist must work, within the administrative structure of a declared mental health facility, in pursuit of stated goals, using medication of the nature and form of administration described in the plan.

The “Goals of Treatment” set out in the plan are as follows (with editorial amendment):

In broader perspective, the plan must be read with medical reports which, in common with the plan, were placed before the Tribunal and the Court in aid of the community treatment order made on the basis of the plan. The whole of that material must be (and, in this case, is) such that, should a substantial or material change in circumstances occur or should fresh information become available, there is an objective evidentiary foundation for the community treatment order to be varied or revoked pursuant to section 65 or section 66 of the Mental Health Act.

The plan accommodates a need for an independent exercise of judgement by a medical practitioner qualified to make it in the best interests of the affected person based on facts then known. Although the plan records that, as at 11 October 2017, the plaintiff’s “current” dosage of risperidone was 50 mg it was, and it remains, open to the plaintiff’s treating doctor/psychiatrist to vary the dosage in a manner calculated to serve her best interests at the time the medication is administered.

In response to the third issue identified for determination, I find that, on the proper construction of the Mental Health Act and the Guardianship Act, a community treatment order (to the extent of any inconsistency) overrides a decision made by the guardian of a person under guardianship (within the meaning of both the Guardianship Act and the Mental Health Act). In my opinion, a guardian is not entitled, in law, to override or countermand a community treatment order. That is not to say that a guardian should not ordinarily be consulted in the treatment of the person under guardianship, but that a guardian has no right of veto in law.

In contending for a contrary conclusion, counsel for the plaintiff relies upon sections 3C and 21-21C of the Guardianship Act, which (with emphasis added) are in the following terms:

It is common ground that at no material time, vis a vis the community treatment order under appeal, was the plaintiff a “patient” within the meaning of the Mental Health Act. Accordingly, section 3C of the Guardianship Act does not, in terms, apply.

In these circumstances, the plaintiff contends that section 3C was necessary because, without such a provision, a guardianship order (whether in plenary or limited form) which confers upon a guardian authority to make decisions about health care overrides a community treatment order.

Counsel for the plaintiff formulated her submission in the following terms:

The Mental Health Act and the Guardianship Act share a field of operation. Each has cross references to the other. Ordinary principles of construction require that the legislation be construed in a way which best achieves a harmonious result: Commissioner of Police (NSW) v Eaton (2013) 252 CLR at 28 [78].

The plaintiff’s contentions are predicated upon a bare statement of conclusion rather than an analysis of the legislation.

There is no reasonable foundation for the plaintiff’s contention that there is a “general rule” that “a guardianship order will override a community treatment order to the extent of any inconsistencies”. Such a general rule, if embraced, would deny a community treatment order substantial regulatory effect, particularly if (as occurs in section 3C(3) of the Guardianship Act) “an instrument appointing an enduring guardian” is treated as having the same effect as a guardianship order. If such a general rule were to be adopted it would elevate a guardianship order, if not also an enduring guardianship appointment, into a mechanism to avoid the operation of Part 3 of Chapter 3 of the Mental Health Act (entitled “Involuntary Treatment in the Community”) and, so, frustrate the protective purpose of those provisions.

Section 3C of the Guardianship Act is not directed specifically to a community treatment order. This appears in section 3C(3)’s concluding reference to “any determination or order made under the Mental Health Act” in respect of a patient, and in section 56(3) of the Mental Health Act, which provides that “[a] community treatment order has no effect while an affected person is detained in a mental health facility [otherwise than under Part 3 of Chapter 3 of the Mental Health Act] or is a voluntary patient”. Upon its proper construction, section 3C is not predicated upon, or indicative of, a “general rule” such as that for which the plaintiff contends.

There is no necessary, or precise, correlation between “a person in need of a guardian” (within the meaning of sections 3(1) and 14 of the Guardianship Act) and a person who suffers from a “mental illness” (within the meaning of section 4 of the Mental Health Act). The Guardianship Act has a broader field of operation, the Mental Health Act a more specific one.

The expression “person in need of a guardian” is defined by 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 that “a reference to a person who has a disability is a reference to a person: (a) who is intellectually, physically, psychologically or sensorally disabled; (b) who is of advanced age; (c) who is a mentally ill person within the meaning of the Mental Health Act; or (d) who is otherwise disabled, and who, by virtue of that fact, is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation”.

These extracted definitions are sufficient to demonstrate that the Guardianship Act has a broader field of operation than the Mental Health Act. The concept of an incapacity for self-management of one’s person upon which the making of a guardianship order turns is broader than the concepts of “mental illness” and “mentally ill person” defined by the Mental Health Act.

Section 4 of the Mental Health Act defines “mental illness” to mean “a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms: (a) delusions; (b) hallucinations; (c) serious disorder of thought form; (d) a severe disturbance of mood; [or] (e) sustained or repeated irrational behaviour indicating the presence of any one or more [of those symptoms].” Section 14(1) of the Mental Health Act provides that “[a] person is a mentally ill person if the person is suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary: (a) for the person’s own protection from serious harm; or (b) for the protection of others from serious harm”.

The fact (recognised by Slattery J in Sarah White v The Local Health Authority [2015] NSWSC 417 at [73]) that a guardian may be empowered to override the wishes of a person under guardianship says nothing about whether a guardian can override the Mental Health Review Tribunal’s exercise of jurisdiction under the Mental Health Act in making a community treatment order. His Honour’s judgment, in fact, ultimately dealt with a different factual scenario – one in which section 3C of the Guardianship Act applied in terms – and he decided (at [92]) that an order made by the Mental Health Review Tribunal that a patient under guardianship be discharged from a mental health facility overrode the guardian’s inconsistent decision to keep the patient in the facility.

Sections 21 and 21A of the Guardianship Act describe the office of a guardian by reference to considerations of “custody” , “functions” and “power” directed towards attribution (in section 21C of the Act) of an “effect” that deems an act of a guardian to be an act of the person under guardianship. Those provisions do not place a person affected by a community treatment order who is a person under guardianship in a higher position than an affected person without the benefit of a guardianship order. Section 57(1) of the Mental Health Act provides that an affected person “must comply” with a community treatment order affecting him or her.

In the several places in which section 21 of the Guardianship Act uses the expression “to the exclusion of any other person” it does not comprehend the Mental Health Review Tribunal as such a “person”. Nor does it refer to a person acting pursuant to, and under the authority of, a community treatment order duly made by the Tribunal.

Neither does the concept of a community treatment order fall within the field of operation naturally thought of in the context of “guardianship’. It is an order made for the purpose of authorising (as the heading to Part 3 of Chapter 3 of the Mental Health Act records) “involuntary treatment in the community”.

For these reasons, I reject the plaintiff’s contention that, as her guardian entrusted with health care functions, her father is empowered, as a matter of law, to limit the nature and scope of a community treatment order otherwise duly made. He is not entitled, as a guardian, to insist that no more than a particular dosage of medication be administered under a community treatment order affecting the plaintiff.

That is not to say that, in implementation of a community treatment order affecting the plaintiff, the defendant should not pay heed to what the father says. Plainly, he is an important source of information material to the proper treatment of the plaintiff. His views, and those of the plaintiff personally, should be taken into account so far as is reasonably practicable.

The evidence adduced by the defendant (reinforced in material respects by the affidavit of the plaintiff’s father) provides an evidentiary foundation for the continuing operation of the community treatment order under appeal. In particular:

It is agreed between counsel that, in the context of the present proceedings, there is no necessity to address the requirements of sections 53(3)(c), 53(4) or 53(5) – although, in fact, as I find, the plaintiff has a “previous history of refusing to accept appropriate treatment” within the meaning of each of the sub-paragraphs of section 53(5).

If (as I find) the plaintiff’s appeal should be dismissed, the community treatment order under appeal will continue in operation until (but not beyond) 11 April 2018, a period which conforms with the Mental Health Act, section 53(6).

In determining that the appeal be dismissed, I take into account the ongoing relationship between the plaintiff and the defendant, and the Tribunal’s assessment that a community treatment order of six months duration was appropriate (in the context of section 53(7) of the Mental Health Act) to stabilise the condition of the plaintiff and to establish, re-establish or maintain a therapeutic relationship between the plaintiff and her psychiatric case manager.

In all the circumstances of the case, including the continuing engagement between the plaintiff, her father and the defendant, the appropriate order is simply an order that the plaintiff’s appeal be dismissed.

If a community treatment order is to operate after 11 April 2018, the plaintiff’s case will have to be considered afresh by the Tribunal.