A K, Re [2002] QMHC 3

MENTAL HEALTH COURT CITATION: Re AK [2002] QMHC 003 PARTIES: APPEAL BY AK AGAINST DECISION OF MENTAL HEALTH REVIEW TRIBUNAL PROCEEDING NO: 0169 of 2002 DELIVERED ON: 9 September 2002 DELIVERED AT: Brisbane HEARING DATE: 2 September 2002 JUDGE: Wilson J ASSISTING PSYCHIATRISTS: Dr J M Lawrence Dr J F Wood FINDINGS AND ORDERS: Appeal dismissed CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – APPEALS IN THE STRICT SENSE AND APPEALS BY WAY OF REHEARING – APPEALS BY WAY OF REHEARING – SCOPE AND EFFECT OF REHEARING – where patient appealed to Mental Health Court from decision of Mental Health Review Tribunal confirming involuntary treatment order –whether it was necessary for Mental Health Court to look for error by Tribunal below before redetermining the matter MENTAL HEALTH – CONFINEMENT AND RESTRAINT OF MENTALLY ILL PERSONS AND SIMILAR ORDERS – GENERALLY – where patient appealed from decision of Mental Health Review Tribunal confirming involuntary treatment order – where patient detained in high security section of mental health institution – where psychiatric evidence suggested that patient suffered from schizophrenia, lacked insight into mental condition, abused cannabis and could be danger to self and others if not kept in high security setting – whether treatment criteria for involuntary treatment order met Mental Health Act 2000 (Qld), s 14, s 108, s 187, s 191(4), s 320, s 325, s 327, s 333(2), s 383 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, followed. Re Coldham & others; ex parte Brideson (No 2) (1990) 170 CLR 267, followed. -- 1 of 5 -- 2 COUNSEL: The appellant appeared on his own behalf J Tate for the Director of Mental Health SOLICITORS: The appellant appeared on his own behalf The Crown Solicitor for the Director of Mental Health [1] WILSON J: This is an appeal by AK, a classified patient of the John Oxley Memorial Hospital, against a decision of the Mental Health Review Tribunal made on 13 March 2002 confirming an involuntary treatment order. [2] On the hearing of the appeal [the patient] appeared without legal representation. Mr Tate of counsel represented the Director of Mental Health. [3] [The patient] has suffered from chronic schizophrenia since about 1991. His illness has been characterised by grandiose delusional beliefs that he has patents and designs for a number of inventions from which he will make vast sums of money. He also has a history of significant mood disturbance with documented elevated and depressed episodes. He has experienced auditory hallucinations. He has no insight into his condition and believes his medication should be reduced and then ceased. [4] He has been a heavy user of cannabis, which has exacerbated his grandiosity and mood swings. He was previously treated in Medium Secure and Extended Treatment and Rehabilitation sections of Wolston Park Hospital but was transferred out of those settings because of his repeated procuring, use of, and suspected supply to other patients of cannabis. In February 2002 he was transferred to High Security at John Oxley Memorial Hospital because of cannabis use in the ward and sexual contact with vulnerable patients. [5] [The patient] has a history of sexual offences, including interfering with his neighbour's daughter "for revenge" and of predatory sexual activity with co-patients (which he claims to be consensual but which attracted complaints from staff and patients). [6] [The patient] is aged 46. He was born in Iraq and arrived in Australia in 1981 (when aged 21 or 22). At the age of 28 he married an Australian woman of Yugoslav origin. There were three children of the marriage, which broke up in 1996. During the break-up of the marriage he threatened a man with a firearm, and he stalked his wife. Presently he appears to be without any regular social support. [7] On 3 March 2002 Dr A, an authorised psychiatrist, made an involuntary treatment order pursuant to section 108 of the Mental Health Act 2000. Such an order may be made if an authorised doctor is satisfied that the "treatment criteria" in section 14 of the Act apply to a patient. Those criteria are:- "(a) the person has a mental illness; (b) the person's illness requires immediate treatment; (c) the proposed treatment is available at an authorised mental health service; (d) because of the person's illness – -- 2 of 5 -- 3 (i) there is an imminent risk that the person may cause harm to himself or herself or someone else; or (ii) the person is likely to suffer serious mental or physical deterioration; (e) there is no less restrictive way of ensuring the person receives appropriate treatment for the illness; (f) the person - (i) lacks the capacity to consent to be treated for illness; or (ii) has unreasonably refused proposed treatment for the illness." [8] The involuntary treatment order was reviewed by the Mental Health Review Tribunal pursuant to section 187 of the Mental Health Act. The tribunal was obliged to have regard to the patient's mental state and psychiatric history, his social circumstances and his response to treatment and willingness to continue treatment: section 191(4). The tribunal confirmed the order. [The patient] appealed to this Court pursuant to section 320. [9] This Court's jurisdiction to decide the appeal is found in section 383 of the Mental Health Act 2000. By section 333 subsection (2): "(2) The appeal is by way of rehearing, unaffected by the tribunal's decision, on the material before the tribunal and any further evidence the court allows." [10] The Court's powers on appeal are set out in Section 325:- "325 Appeal powers (1) In deciding the appeal the Mental Health Court may confirm or set aside the decision appealed against. (2) If the Mental Health Court sets aside the decision appealed against- (a) the court may make a decision the tribunal could have made on the review or application; and (b) the decision is taken, for this Act (other than this part), to be that of the tribunal." [11] The Mental Health Court's decision on the appeal is final and conclusive, and there is no further right of appeal: section 327. [12] The appeal is properly described as one by way of rehearing, since the Court may receive further evidence. Generally, where an appeal is by way of rehearing, the rehearing is as at the date of the appeal; that is, matters are determined by reference to circumstances as they then exist and by reference to the law as it then exists. -- 3 of 5 -- 4 [13] Many statutory provisions conferring appellate powers, even in the case of appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error; that is, if an error of fact or law occurred below, the appellate court will try the case again on the evidence used below, together with such additional evidence as it thinks fit to receive: see Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 203 - 204. [14] However, I am satisfied that it was not the Legislature's intention that this Court's powers to decide appeals from the Mental Health Review Tribunal should be so restricted. Such an appeal is from an administrative body to a court, and in such circumstances there is a presumption that the court is to exercise original jurisdiction and to determine the matter on the evidence and law applicable as at the date of the curial proceedings: see Re Coldham and others; ex parte Brideson (No 2) (1990) 170 CLR 267 at 273 per Deane, Gaudron and McHugh JJ. The decisions of the Mental Health Review Tribunal against which appeal lies to this Court (for example decisions on the review of involuntary treatment orders, forensic orders and fitness for trial) all concern a person's mental condition, which is not necessarily static. Further, the express words of section 333(2) "unaffected by the tribunal's decision" are an indication that the Court need not search for error by the Mental Health Review Tribunal before redetermining the matter. [15] I have concluded that it is for this Court to determine the appeal on the facts and law applicable at the date of the appeal and that it is not necessary for the appellant to demonstrate error by the tribunal. [16] In addition to the material that was before the tribunal, the Court considered a report by Dr A dated 9 July 2002 and a report by Dr B dated 29 August 2002. Dr A gave oral evidence. [17] Mr Tate identified four substantive issues - lack of insight, non-compliance with treatment, dangerousness, and reaction to medication, all of which were made out on the evidence. [18] [The patient] does not believe that he has an illness. He has often declared his plans to cease all medication and follow-up, and to continue to use cannabis whenever he can. He refuses oral medication (the last refusal being only about a week before the hearing of the appeal), and has had to be given depot injections. Very recently he had a short period of unescorted ground leave, which, to his credit, was without incident. Dr A said that there had not been problems managing him since he had been contained in a high security setting, in contrast to problems which had occurred previously in a medium security setting. She said that if he were not in a secure ward, she would expect him to abscond, not to seek or accept any form of psychiatric treatment or follow up, to resume using cannabis as often as he wished or could get it, and to deteriorate mentally. If he were unmedicated and in the community, and became psychotic or intoxicated or both, or he if suffered an episode of mood disturbance, he would be a danger to others and possibly also to himself. [19] Dr B was under no doubt that [the patient] suffers from schizophrenia of a most severe kind and that he is only partially responsive to treatment. The documentation raises issues with respect to dangerousness and in particular concern about sexual -- 4 of 5 -- 5 behaviour involving children. He considered all of the treatment criteria in section 14 to have been met. He said:- "At the present time I do not believe there is any less restrictive way to ensure the patient receives treatment and to address the issues of dangerousness. The patient will not co-operate with treatment within the community unless he is supervised around the clock. In the absence of such supervision it is likely that he will abscond from the State and cease treatment." [20] The assisting psychiatrists, Dr Wood and Dr Lawrence, both advised the Court that from the clinical perspective the treatment criteria have been met and that there is no reason to set aside the order of the Mental Health Review Tribunal confirming the involuntary treatment order. [21] I am satisfied that the treatment criteria have been met, and that the order of the tribunal should be confirmed. The appeal is dismissed. -- 5 of 5 --