Commentary on Lindsay J’s Judgment Power of MHRT

The power of the Mental Health Review Tribunal (MHRT) to control the treatment of patients by the hospital was considered for the first time at the hearing about Saeed Dezfouli held on the 20th September 2013. Judicial member Helen Morgan asked Saeed’s lawyer:

You say the Tribunal has that power?”[1] After hearing all arguments the Tribunal stated it would only “intervene in exceptional circumstances”.[2]

That decision was challenged by the NSW Supreme Court. The recent judgment of Lindsay J in Saeed Dezfouli’s case [2014] NSWSC 31 establishes the Tribunal’s power over the mental health system.

The Mental Health Consumer Information Sheet was created after consultation with the Tribunal and Justice Health. Download here

Purpose of MHRT

The Mental Health Review Tribunal, established by the Mental Health Act 2007, is governed by legislation, with express powers and implied authority to uphold, protect and fulfill the functions conferred on it by statute.[3] In addition the provisions contained in ss 46(1) and 47(1)(a), confer on the Tribunal unfettered discretion about whether to make any order at all. This affirms that the Tribunal has power to intervene and issue specific orders to hospitals as to the care, treatment and control of patients within its protective jurisdiction.

According to Lindsay J, an exercise of protective jurisdiction affecting a person in need of protection must be for the benefit, and in the best interests, of that person as an individual, and not for the benefit of the state, or others, or for the convenience of carers.[4] The protection and care is to be assessed primarily by reference to the welfare of the person[5] from his or her perspective.[6]

Lindsay J also reinforced the “common law’s entrenched concern for the protection of civil liberties, especially in relation to medical treatment. This is important from the perspective of “a need for the individual’s consent to medical treatment.”[7] The decision of Lindsay J reinforces the exceptional nature of forced medication of forensic mental health patients. Lindsay J argues that forced medication can only be justified by “any medical intervention must be for the benefit, and in the best interests, of the protected person”.[8]

These principles, in addition to those provided in s68,[9] to be elaborated on further, are also applicable to the performance of work by the “authorised medical officers” (as defined by s 4(1) of the Mental Health Act) who constitute the treating team”. [10]

Powers and Responsibilities of the MHRT as per Lindsay J judgement:

As per Lindsay J: “… as a matter of jurisdiction, it was open to the Tribunal to make such an order [that his treatment and care not include depot injections] under s 47(1)(a) of the Mental Health (Forensic Provisions) Act. I agree”.[11]

The legislation governing the Tribunal must be construed purposively to ensure that, so far as possible, its beneficial objects are achieved. Lindsay J encourages the MHRT to discharge its “existing statutory functions, relieving the Court of the necessity of undertaking work which, historically, could have fallen to the Court as a delegate of the Crown”.[12]

Lindsay J drew upon section 76A(1) of the Mental Health (Forensic Provisions) Act in order to assert that “for the purposes of a review, the Tribunal may communicate with any persons, take any action and make any recommendations it thinks fit”.[13]

The Tribunal is required to review the case of each patient at least once every six months, but may review cases at any time.[14] A s 46 of the Mental Health (Forensic Provisions) Act review provides an occasion for the Tribunal to investigate a forensic patient’s personal circumstances and, as the nature of the case may require, to supervise his or her “detention, care or treatment in a mental health facility”.[15] It may, after reviewing the case of a patient under s 46, make an “order as to the patient’s continued detention, care or treatment in a mental health facility, correctional centre or other place”.[16]

The Nature, Quality and Frequency of A Review:

Lindsay J has suggested that a ‘review’ is “a synonym for the word ‘survey’”, which requires “fresh …. consideration of the personal circumstances of a forensic patient”.[17] He suggests the nature of the review process is a ‘hybrid’ one, whereby the forensic patient subject of a review is “expected to be an active participant in the process, not merely a subject of inquiry”.[18]

This statement indicates the need to reconsider a system which facilitates the centrality and involvement of individuals.

Suggested Checklist to be followed by the MHRT:

While the Tribunal must take into account the status and antecedents of a forensic patient, in conducting a review, the Tribunal is also governed by various legislative statements, the most prominent of which is s 68 of the Mental Health Act[19]and ss 40 and 74 of the Mental Health   (Forensic Provisions) Act.[20]

Lindsay J provided some guidance as to the use of those sections as a possible “checklist of topics to be consulted upon the conduct of a review under s 46(1), or upon the making of a determination under s 47(1)(a) of the Mental Health (Forensic Provisions) Act”.[21] These are currently separated into mandatory and guiding considerations.

Mandatory Considerations of the MHRT:

In section 74 of the Mental Health (Forensic Provisions) Act 1990, the Tribunal is under a specific obligation to consider the following matters:

(a) whether the person is suffering from a mental illness or other mental condition,

(b) whether there are reasonable grounds for believing that care, treatment or control of the person is necessary for the person’s own protection from serious harm or the protection of others from serious harm,

(c) the continuing condition of the person, including any likely deterioration in the person’s condition, and the likely effects of any such deterioration,

(d) in the case of a proposed release, a report by a forensic psychiatrist or other person of a class prescribed by the regulations, who is not currently involved in treating the person, as to the condition of the person and whether the safety of the person or any member of the public will be seriously endangered by the person’s release,

(e) in the case of the proposed release of a forensic patient subject to a limiting term, whether or not the patient has spent sufficient time in custody.

Lindsay J argued that s 74 operates in a manner which “(a) its subject matter relates expressly to factors to be taken into account in decision making, rather than “objects” or “principles” in the nature of guidelines; (b) the “matters” identified in s 74 have a mandatory flavour because the section provides that the Tribunal “must” have regard to them; and (c) in an appropriate case, the obligation of the Tribunal to have regard to those matters might be enforceable by a grant of relief by the Court…in the nature of relief historically available via the issue of a prerogative writ.”[22]

Guiding Considerations – Objectives and Principles for Care and Treatment:

Lindsay J suggested that by virtue of the ss76B(1) and (5) of the of the Mental Health (Forensic Provisions) Act, and s 195 of the Mental Health Act, the following sections “work to provide guidance in the administration of the Mental Health (Forensic Provisions) Act although they do not create, or confer any rights or entitlements enforceable at law.”[23]

In section 40 of the Mental Health (Forensic Provisions) Act, the objects of the Act, and by extension, the MHRT are:

(a) to protect the safety of members of the public,

(b) to provide for the care, treatment and control of persons subject to criminal proceedings who are suffering from a mental illness or mental condition,

(c) to facilitate the care, treatment and control of any of those persons in correctional centres through community treatment orders,

(d) to facilitate the provision of hospital care or care in the community through community treatment orders for any of those persons who require involuntary treatment,

(e) to give an opportunity for those persons to have access to appropriate care.

Lindsay J suggested that the operation of s40 “is seen in use of the word “control” in combination with the concept of “care and treatment” and in the express identification of the object of protecting the safety of members of the public as the first of five specified objects”.[24]

Section 68 of the Mental Health Act, provides statements of a general nature which inform the MHRT of its objects and principles that it should abide by, the following should be emphasised

(a) people with a mental illness or mental disorder should receive the best possible care and treatment in the least restrictive environment enabling the care and treatment to be effectively given,

(c) the provision of care and treatment should be designed to assist people with a mental illness or mental disorder, wherever possible, to live, work and participate in the community,

(d) the prescription of medicine to a person with a mental illness or mental disorder should meet the health needs of the person and should be given only for therapeutic or diagnostic needs and not as a punishment or for the convenience of others,

(f) any restriction on the liberty of patients and other people with a mental illness or mental disorder and any interference with their rights, dignity and self-respect is to be kept to the minimum necessary in the circumstances.

(h) every effort should be made to involve persons with a mental illness or disorder in the development of treatment plans and plans of ongoing care.[25]

Section 68 “provides principles that are, as far as practicable, to be given effect to with respect to the care and treatment of people with a mental illness or mental disorder in the context of the Mental Health Act no less than in the context of the Mental Health (Forensic Provisions) Act.”[26]

[1] Transcript of Proceedings, Dezfouli (MHRT Hearing, 12/9/13) 27 (H Morgan). Affidavit 18/10/13 Case 2013/288415.                                                        

[2] A (by his tutor Brett Collins) v Mental Health Review Tribunal (no 4) [2014] NSWSC 31 [252].

[3] Ibid [63].

[4] Ibid [164].

[5] Ibid [146].

[6] Ibid [199].

[7] Ibid [124].

[8] Ibid [125].

[9] Mental Health Act 2007 (NSW), s68.

[10] Ibid [134].

[11] Ibid [29].

[12] Ibid [193].

[13] Ibid [94].

[14] Mental Health (Forensic Provisions) Act 1990 (NSW), s46.

[15] A (by his tutor Brett Collins) v Mental Health Review Tribunal (no 4) [2014] NSWSC 31 [85].

[16] Mental Health (Forensic Provisions) Act 1990 (NSW), s47.

[17] A (by his tutor Brett Collins) v Mental Health Review Tribunal (no 4) [2014] NSWSC 31 [82].

[18] Ibid [86].

[19] Mental Health Act 2007 (NSW), s68.

[20] Mental Health (Forensic Provisions) Act 1990 (NSW), ss40, 74.

[21] A (by his tutor Brett Collins) v Mental Health Review Tribunal (no 4) [2014] NSWSC 31 [142].

[22] Ibid [131].

[23] Ibid [130].

[24] Ibid [140].

[25] A (by his tutor Brett Collins) v Mental Health Review Tribunal (no 4) [2014] NSWSC 31 [72].

[26] Ibid [133].

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