X X v W W and Middle South Area Mental Health Service  VSC 564 (17 December 2014)
The Supreme Court confirmed that when the Mental Health Review Board discharges a patient from involuntary treatment, there must be a change in circumstances before a doctor can make a new involuntary treatment order.
On 19 August 2013, the plaintiff (‘Patient X’) was made subject to an involuntary treatment order (ITO) under s 12AA of the then Mental Health Act 1986 (the Act).
On 27 August 2013, the Mental Health Review Board (‘the Board’) conducted review of Patient X’s status as an involuntary patient under ss 30 and 29 of the Act. Patient X, who was represented by Victoria Legal Aid (VLA) at the hearing, told the Board that she agreed that she had bipolar disorder and wished to continue taking medication. However, she said she preferred to leave hospital and be treated in the community by her private psychiatrist.
The Board decided that Patient X did not meet the criteria for involuntary treatment under s 8(1) of the Act. Specifically, the Board considered that Patient X could receive adequate treatment in a less restrictive manner as a voluntary patient and therefore s 8(1)(e) of the Act was not satisfied. The Board discharged Patient X from involuntary status. The Board said that it recommended that Patient X continue to receive close medical supervision, but told her that it was leaving the decision about whether to remain in hospital on a voluntary basis up to her. The Board made its decision at around 12:45pm.
Patient X returned to the ward to consider her options about treatment and accommodation. After a friend offered her short-term accommodation at his house, she told the ward staff of her decision to leave the hospital and waited on the ward for her medication.
At around 4:00pm, the first defendant (‘Dr W’) made a new recommendation for Patient X to receive involuntary treatment under s 9 of the Act. Section 9 provides that a registered medical practitioner must not make a recommendation unless he or she considers that (a) the criteria in s 8(1) apply to the person and (b) an ITO should be made.
Dr W also immediately made a new ITO under s 12AA of the Act, pursuant to which Patient X was detained at the hospital and involuntarily treated. Patient X was told of this decision at 5pm.
VLA represented Patient X in seeking judicial review of Dr W’s decision to make the new recommendation, on the grounds that it was ultra vires, unreasonable, took into account irrelevant considerations and was incompatible with several rights under the Charter of Human Rights and Responsibilities Act 2006 (the Charter). Patient X sought a declaration to this effect.
Patient X argued that, properly construed, s 9 of the Act did not permit a registered medical practitioner to make a recommendation following a discharge by the Board unless he or she had information not known to the Board which put a significantly different complexion on the case as compared to that which was before the Board.
She also argued that her rights under sections 10(c), 13(a), 21(1), 21(2) and 21(3) were engaged and that Dr W’s decision was not a reasonable limitation on those rights, because it involved an abrogation of a fundamental safeguard (independent oversight) which is essential to ensure that the limitations on rights inherent in involuntary treatment are proportionate and therefore justified.
The defendants argued that the power in s 9 was not limited. Indeed, the defendants argued that if a doctor believed that the s 8(1) criteria were met, and that an ITO should be made, the doctor would have a duty to make a recommendation, regardless of the Board’s decision to the contrary. The defendants argued in the alternative that, in Patient X’s case, Dr W did have new information not known to the Board which put a significantly different complexion on the case.
Justice McDonald held that the power in s 9 was impliedly limited by, inter alia, the power conferred on the Board, the objects in s 4(2) and the principles of treatment in s 6A of the Act, such that a registered medical practitioner could not make a recommendation following discharge by the Board ‘in the absence of any changed circumstances’ (). His Honour found that, in considering whether an ITO should be made, a registered medical practitioner ‘was required to have regard to any decision of the Board to discharge an ITO, and its reasons for doing so’ ( and ). The power could not be exercised ‘capriciously or so as to render the Board’s powers nugatory’ (). His Honour held that the power could not be used ‘simply because [a doctor] disagrees with the decision of the Board ().
His Honour found that, in Patient X’s case, there had been a change in circumstances following the Board’s decision - namely that Patient X had made changes to her accommodation and travel plans following the Board hearing (). Accordingly, His Honour found that Dr W’s decision was not ultra vires or unreasonable and did not take into account irrelevant considerations.
His Honour found that the power in s 9 was limited without having recourse to the Charter. His Honour found that s 32 of the Charter did not require reading in the more restrictive limitation contended for by Patient X (‘significantly different complexion’) as s 32 does not allow the reading in of words which are not explicit or implicit or reading down words so as to change the true meaning of a provision (). His Honour also found that Dr W had not breached s 38 of the Charter because he did consider the Board’s decision but believed that circumstances had changed, and therefore his decision was not incompatible with Charter rights (). Further, his Honour found that Dr W complied with the procedural requirement in s 38 as he ‘seriously turned his mind to the possible impact… on the plaintiff’s human rights and the implications for her’ ().
The decision provides much needed clarity on the limits of a doctor’s powers following an order that a patient be discharged. As noted above, the defendants argued that a doctor could make a new recommendation regardless of whether there had been any change in circumstances. In this sense, a doctor could make a new recommendation based solely on a disagreement with the Board’s decision, which would have the effect of rendering the Board redundant. The Court has made it clear that that is not the case, and that doctors may not make decisions that render the Board’s decisions ‘nugatory’. The decision therefore upholds the rule of law, which requires that effect should be loyally given to the decisions of legally-constituted tribunals.
Since Patient X’s case, the Act has been replaced by the Mental Health Act 2014. The new Mental Health Act is similarly silent on the circumstances in which a doctor can recommence compulsory treatment over a person who has been discharged from compulsory treatment by the Mental Health Tribunal. Although the Court did not comment on the effect of the new legislation, given the similar architecture of the two Acts, the Court’s decision will likely be found to apply to in relation to decisions of the new Mental Health Tribunal.
The full decision can be found online here.
Eleanore Fritze is a Senior Lawyer at Victoria Legal Aid and appeared as junior counsel in this matter.