09-003  VMHRB 1 (8 July 2008) In this case, concerning the failure of the Mental Health Board to conduct a review of the involuntary treatment of a patient under the Mental Health Act, a number of very significant Charter issues arose:
- Does the Charter apply to the proceeding and, if so, how?
- Is the Board a ‘public authority’ and / or a ‘court or tribunal’ for the purposes of the Charter?
- How does the Charter apply to the Board when hearing matters?
- Is the Board required by the Charter to ensure a ‘fair hearing’?
- What are the obligations of the Board and its staff as public authorities?
- What Charter rights are engaged by involuntary mental health treatment?
- What is the scope of the Charter obligation to interpret legislation consistently with human rights?
- How should s 30(4) of the Mental Health Act be interpreted and applied in light of the Charter?
P’s community treatment order (‘CTO’), pursuant to which he was subject to involuntary mental health treatment, was extended by an authorised psychiatrist on 15 February 2007.
Pursuant to s 30(4) of the Mental Health Act 1986 (Vic), the Mental Health Review Board ‘must conduct a review of the extension of a community treatment order within 8 weeks after the order is extended’. The Act does not articulate the consequences of non-compliance.
The Board listed a review of P’s CTO for 4 April 2007. On the application of P’s legal representative, this review was adjourned to a date to be fixed to enable P to obtain an independent psychiatric opinion.
In May 2007, the Board administratively postponed the adjourned hearing on advice from the treatment service that an independent opinion had not been obtained. None of P, his legal representative or the treating service subsequently advised the Board that an independent opinion had been obtained and the Board did not make any further inquiries itself. The matter was therefore not re-listed and the review of the CTO did not occur until more than one year later at the annual review required under s 30.
At the annual review, P’s legal representative submitted that s 30(4) of the Act ‘plainly provides an imperative duty upon the Board to conduct a review of a CTO within 8 weeks of its extension’ and that failure to conduct such a review within 8 weeks (or indeed at any stage in the 12 month period) rendered the CTO invalid.
It was further submitted by P’s legal representative that the Charter strengthens the argument that s 30(4) requires ‘strict compliance’ and the conclusion that failure to conduct the mandatory review within 8 weeks (or at all) results in invalidation of a CTO.
The Attorney-General intervened in the matter in respect of the Charter issues.
Does the Charter apply to the proceeding and, if so, how?
As the proceeding commenced after 1 January 2007, the Charter applied to its conduct (s 49(2)).
However, the transitional provisions of the Charter are silent as to whether the obligation to interpret statutory provisions compatibly with human rights (s 32), which came into force on 1 January 2008, applies to how legislation should be interpreted in respect of pre-1 January 2008 events. That is, does s 32 apply retrospectively to pre-enactment events?
Having regard to the decision of the House of Lords in Wilson v First County Trust (No 2)  UKHL 40, the Board concluded that the interpretative principle does not apply to causes of action or events that arose before commencement. In that case, the Lords concluded that:
The principle does not apply because to apply it in such cases, and thereby change the interpretation and effect of existing legislation, might well produce an unfair result for one party or the other.
With respect, this principle should not have been applied in this case given that the Board did not, or at least should not, have had a vested interest in the case. Indeed, in Wilson v First County Trust, Lord Nicholls made the important qualification that the interpretative principle may apply to post-commencement criminal trials relating to pre-commencement events, stating that ‘the prosecution does not have an accrued or vested right in any relevant sense’. Lord Hope similarly expressed that the principle has much less weight in public interest proceedings concerning public authorities.
It was common ground that s 32 of the Charter did apply to the Board’s conduct and to the application of the interpretative principle to events occurring after 1 January 2008.
Is the Board a ‘public authority’ and / or a ‘court or tribunal’ for the purposes of the Charter?
The Board concluded that, pursuant to s 4(1)(a) of the Charter, the Board’s staff are ‘clearly’ public authorities and are required to act compatibly and give proper consideration to human rights under s 38.
The Board further concluded that, pursuant to s 4(1)(j) of the Charter, the Board itself is a public authority when acting in an administrative capacity, including listing cases, scheduling hearings and sending out notices for hearing. Consistently with the decision of King J in R v Williams  VSC 2, however, the Board held that the determination of an adjournment is a judicial or quasi-judicial function and, in such cases, the Board is not bound as a public authority.
The question then turned to whether the Board is a ‘court or tribunal’ when exercising its decision-making capacities (and thereby subject to the Charter under s 6(2)(b), discussed below). The Board concluded that it is a tribunal for the purposes of the Charter, having regard to factors including that:
- it is established by statute and comprises a President and members;
- the Act refers to ‘proceedings’ and ‘parties’ and requires that the Board exercise ‘court-like’ duties and functions, including affording natural justice;
- members of the Board are appointed by the Governor in Council;
- legal members of the Board are required to have the same qualifications as judicial officers and questions of law arising must be determined by legal members; and
- the decisions of the Board are substantive, binding and have significant consequences for the rights and duties of parties.
How does the Charter apply to the Board when hearing matters?
Section 6(2)(b) of the Charter relevantly provides that the Charter applies to courts and tribunals to the extent that they have functions under Part 2 (Human Rights) and Division 3 of Part 3 (Interpretation of Laws).
The view advanced by P was that s 6(2)(b) of the Charter requires a court or tribunal to give effect to any rights under Part 2 of the Charter in so far as those rights arise in relation to the matter the subject of the proceeding before the court or tribunal.
The Attorney advanced a very narrow view of s 6(2)(b), submitting that a court or tribunal is required to give effect only to those rights under Part 2 that are ‘explicitly and exclusively addressed to courts and tribunals’. The Board adopted this narrow view, stating that ‘the Board’s functions under Part 2 must be limited to those relevant to its hearing proceedings’ (namely, the right to a fair hearing under s 24).
The adoption of this narrow view is regrettable and, if adopted by higher courts, will significantly limit the judicial protection afforded to human rights.
The only rights that are explicitly and exclusively addressed to courts and tribunals arise under s 21(5)-(8) (detention on criminal charges) and s 24 (fair hearing). Courts and tribunals have significant capacity, however, through both their processes and decisions, to impact on other human rights, including privacy (eg, closing or suppressing proceedings), free expression (eg, contempt) and cruel or inhuman treatment (eg, admissibility of confessional evidence). Narrow readings of s 6(2)(b) should be rejected. As Evans and Evans note in Australian Bills of Rights: The Law of the Victorian Charter and the ACT Human Rights Act (2008), ‘if courts do not have direct obligations with respect to rights…there could be serious gaps in the protection of human rights’ (see also R v Williams  VSC 2, -).
The broad reading of s 6(2)(b) is also consistent with the principles that human rights and human rights instruments should be interpreted so as to render their protections ‘real and effective’, not ‘theoretical and illusory’ (see, eg, Kijewska v Poland  ECHR 73002/01; Human Rights Committee, General Comment 31, -). It is also consistent with the principle that human rights impose positive obligations of conduct and result (see, eg, Savage v South Essex Partnership NHS Foundation Trust  EWCA Civ 1375; Human Rights Committee, General Comment 31, -).
Is the Board required by the Charter to ensure a ‘fair hearing’?
A separate issue arose as to whether the Board is required to ensure a ‘fair hearing’ under s 24 of the Charter, with the Attorney remarkably submitting that the right ‘is not engaged in a Board hearing’ but is ‘limited to civil suits [commenced by originating motion] between two parties that determine rights and obligations at law’.
The Board rejected the Attorney’s argument, stating that it considers itself ‘bound by s 24 of the Charter, which obliges it to provide parties before the Board with a fair hearing’. The Board considered that this obligation reinforces the Board’s obligation under the Mental Health Act to ensure natural justice, although noted that ‘it is unclear as to the extent to which the [right to a fair hearing] may require the Board to make changes to its hearing procedures, practices and processes’.
In our view, this is the correct conclusion. The powers of the Board include the power to interfere substantially with a person’s human rights, including the right to liberty and freedom from detention and involuntary treatment. Recognising this, Principles 17 and 18 of the UN Principles for the Protection of Persons with Mental Illness apply the elements of the right to a fair hearing (such as: the right to legal representation; access to documents before the review body; the right to a public hearing; the right to reasons; and the right to an expeditious hearing) to mental health review bodies. It is notable that, overwhelmingly, theUK courts and the European Court of Human Rights have simply accepted that mental health review bodies within their jurisdictions are subject to the right to a fair hearing.
What are the obligations of the Board and its staff as public authorities?
The Board noted that the ‘fact situation raises the question as to the respective responsibilities of the parties and of the Board in monitoring the progress or lack of progress in obtaining the second psychiatric opinion’.
It is welcome that the Board acknowledged the failure to conduct a review as ‘regrettable to say the least’ and noted that it has amended its administrative procedures to prevent a similar situation occurring. It is also welcome that the Board recognized that ‘the Charter may require the Board to reconsider and, if necessary, adapt its practices, procedures and processes to ensure compliance with patients’ Charter rights’. Having regard to the above, it is perhaps surprising that the Board nevertheless found that it had ‘substantially complied with its review obligation under the Act’, with the failure to re-list for over a year while awaiting advice that a second opinion had been obtained being ‘consistent with an appropriate degree of flexibility in the Board’s practices and procedures necessary to balance elements of fairness and finality’.
It is also regrettable that, notwithstanding the Board’s conclusions that P suffers from a mental illness, is prone to psychotic episodes and disorganization, is not well enough to offer informed consent to treatment, and is a threat to his own health, he ‘had a responsibility to pursue the independent psychiatric opinion in a timely manner and to keep the treating team and Board informed of his progress’ and to ‘to reduce the delay’. It is the mandatory obligation of the Board under s 30(4) of the Mental Health Act to conduct a review of a CTO extension within 8 weeks, not that of the patient or even his or her legal representative.
What Charter rights are engaged by involuntary mental health treatment?
It was submitted for P that his continued involuntary treatment engaged and limited his rights to freedom from medical treatment without consent (s 10(c)) and to privacy (s 13(a)). While the Board did not consider the content of these rights in detail, it did appear to accept that, at the least, they are engaged by involuntary treatment and, while not raised by P himself, further found that the right to a fair hearing under s 24 was engaged by the facts of the case.
Although not necessarily directly engaged by the facts of this case, further Charter rights which will often be relevant to involuntary treatment and review under the Mental Health Act include: the right to recognition and equality before the law (s 8); protection from torture and cruel, inhumane and degrading treatment (ss 10(a) and (b)); freedom of movement (s 12); liberty and security of person (s 21); and humane treatment when deprived of liberty (s 22).
What is the scope of the Charter obligation to interpret legislation consistently with human rights?
The Board accepted that, under s 32(1) ‘in cases where it is required and able to do so in order to apply the Act, the Board must make a Charter consistent interpretation of the Act’. It went on to say, however, that ‘as the Board in most cases is concerned with the application of statutory criteria to an involuntary patient, this interpretative obligation is likely to be limited to specific cases where the interpretation of specific provisions of the Act is in issue’.
In terms of an approach to s 32, the Board adopted the five step approach of the New Zealand Supreme Court in Hansen v The Queen  NZSC 7:
- Identify the human rights relevant to the issue under consideration;
- Identify the ordinary construction of the statutory provision and determine whether it burdens or limits any of the rights identified;
- If any rights are limited by the ordinary construction of the statute, determine whether such limitation is permissible under s 7;
- If the limitation is not permissible, but the wording of the Act does, consistently with its purpose, permit a Charter compatible interpretation, then adopt that interpretation; and
- If it is not possible to render a Charter compatible interpretation within the scope of s 32(1), adopt the ordinary construction of the provision pursuant to s 32(3).
As to step 4, the Board appeared to endorse the approach taken by the House of Lords in Ghaidan v Godin-Mendoza  AC 557, stating that ‘every reasonable effort’ should be taken ‘to interpret the Act’s provisions in a way that is compatible with Charter rights’. In that case, Lord Nicholls stated that:
the interpretive obligation…is of an unusual and far reaching character. [It] may require a court to depart from the unambiguous meaning the legislation would otherwise bear.
He further stated that:
[The interpretative obligation] enables language to be interpreted restrictively or expansively. But [it] goes further than this. It is also apt to require a court to read in words which change the meaning of the enacted legislation, so as to make it Convention-compliant. In other words, the intention of Parliament in enacting [the interpretative obligation] was that, to an extent bounded only by what is 'possible', a court can modify the meaning, and hence the effect, of primary and secondary legislation.
As to step 4, it is also important to note that the Supreme Court of New Zealand has stated that, where multiple interpretations are possible, the interpretation that is most compatible with, and the least restrictive of, rights is to be preferred: Hansen v The Queen  NZSC 7, -; Moonen v Film and Literature Board of Review  2 NZLR 9, -.
How should s 30(4) of the Mental Health Act be interpreted and applied in light of the Charter?
Finally, the Board turned to consider how s 30(4) of the Mental Health Act, which requires that the Board ‘must conduct a review of the extension of a community treatment order within 8 weeks after the order is extended’ but does not articulate the consequences of non-compliance, should be interpreted in light of s 32(1) of the Charter. P argued that the Charter required strict compliance with s 30(4), with failure to conduct a timely review rendering a CTO invalid. The Attorney submitted that it was only necessary to ‘substantially comply’ with s 30(4) in order for the CTO to remain valid.
At step 1 of the interpretative process, the Board accepted that the failure to review P’s CTO engaged ss 10(c), 13 and 24 of the Charter.
Turning to step 2, however, it held that the current interpretation of s 30(4) of the Mental Health Act, pursuant to which ‘substantial compliance’ with the provision is required, is Charter consistent and does not limit any human rights. The Board concluded that it had substantially complied with the provision by initially listing and then adjourning the review within the period, notwithstanding that no review subsequently took place. It also concluded that, at all relevant times after 1 January 2008, the Board, the Board’s staff and the authorised psychiatrist acted compatibly with P’s human rights.
Although it did not regard it as strictly necessary to consider, the Board then discussed step 3 of the interpretative process, concluding that any limitation on P’s rights to freedom from forced treatment and to privacy through failure to review his status for over a year was reasonable and proportionate having regard to the importance of ‘continued treatment for a serious mental illness’ (notwithstanding that the necessity and importance of such treatment is precisely what should have been reviewed). They also noted that, ‘at any time’, P or his legal representative could have requested that the review be re-listed or lodged an appeal.
With respect, this conclusion is flawed. Involuntary treatment, while sometimes necessary, constitutes a serious interference with a person’s right to liberty, bodily integrity, freedom of movement, privacy and autonomy. For that reason it is critical that such treatment be subject to rigorous and timely review and that the Board’s positive obligations, under both the Mental Health Act and the Charter, to conduct such a review be strictly complied with and a CTO invalidated where a failure to do so occurs.
Philip Lynch is Director of the Human Rights Law Resource Centre