XX v WW and Middle South Area Mental Health Service

[2014] VSC 564
Download Judgment: English
Country: Australia
Year: 2014
Court: Supreme Court of Victoria, Common Law Division, Judicial Review and Appeals
Health Topics: Informed consent, Mental health
Human Rights: Right to bodily integrity, Right to liberty and security of person

The plaintiff, XX, suffered from bipolar effective disorder and carried a history of self-harm. On August 19, 2012, an involuntary treatment order (hereinafter “the ITO”) was made pursuant to the Mental Health Act 1986(hereinafter “the Act”) requiring her to be detained and to receive involuntary psychiatric treatment at Monash Medical Centre. The plaintiff appealed against the ITO to the Board pursuant to section 29(1)(a)(i) of the Act, which provides that an appeal could be made at any time by an involuntary patient against his/her ITO or against his or her continued detention under section 12A(4) or 12C of the Act. Pursuant to section 29(4) the Board was required to commence the hearing of an appeal without delay and the Board on 27 August discharged the ITO in lieu of which the plaintiff was free to leave the Medical Centre. The staff became concerned for the plaintiff’s safety and later on 27 August a treating doctor (first defendant), WW, recommended a new ITO to continue her treatment.
The primary issue in the present proceeding was whether the first defendant could lawfully make this recommendation, which had the effect of continuing the detention and treatment of the plaintiff against her will. On 30 August 2013, the Board conducted an urgent initial review under section 30(1)(a) of the Act in relation to the ITO which had been made at approximately 4.30pm on 27 August 2013. The Board discharged the ITO which had been made on the afternoon of 27 August 2013 pursuant to section 36(2) of the Act.
The plaintiff sought a declaration that recommendation for the new ITO was unlawful and claimed that WW acted against the provisions of the Mental Health Act in recommending the new ITO and in breach of the Charter of Human Rights and Responsibilities Act 2006( hereinafter “the Charter”). The plaintiff alleged a violation of Section 8 of the Mental Health Act which laid down the criteria for involuntary treatment and section 9 which laid down the guidelines for the recommendation for involuntary treatment. The plaintiff proposed that a new limitation should be read into section 9 which states that a medical practitioner cannot recommend an ITO for a patient who has previously been discharged by the Board. The plaintiff relied on R (Von Brandenburg) v East London and the City Mental Health NHS Trust([2004] 2 AC 280), an English case based on similar facts and legal issues. The House of Lords discussed the insertion of a provision similar to the one proposed by the plaintiff. The plaintiff also argued that the recommendation by WW was an unreasonable exercise of discretion and was incompatible with the right to voluntary medical treatment, privacy, and liberty and security of person and a right against arbitrary detention. It resulted in her detention and was not a reasonable limitation permitted under the Charter. The plaintiff alleged a violation of Section 10 of the Charter which granted protection from torture and cruel, inhuman or degrading treatment, Section 12 which granted freedom of movement, Section 21 which granted a right to liberty and security and Sections 32 and 38 which protected human rights.
In addition to defending the claims alleged by the plaintiff, the defendants submitted that the Court had no power to grant the declaratory relief because the recommendation for the new ITO was no longer operative and the relief could produce no foreseeable consequences.

The Supreme Court of Victoria held that the Court had the power to grant declaratory relief. The Court then distinguished the terms of the Mental Health Act with the legislation in the Brandenburg case and found that no new limitation in section 9 was required.
The court noted that WW had acted in accordance with section 9, and had recommended a new ITO because he believed the situation has altered significantly since the Board hearing in terms of plaintiff mental health(and not because WW disagreed with the Board decision). The plaintiff intended to depart from proposed residential arrangements as presented to the Board and this was of very considerable practical significance for the discharge of a patient with severe mental illness. The Court found that WW had power under the Act to make the recommendation for the new ITO in the circumstances. The decision to recommend was also not an unreasonable exercise of WW’s discretion.
The Court also found that recommendation was not in breach of the Charter, because it was validly made and was a reasonable limitation and not arbitrary. WW had regard to the Board’s decision and also had regard to the plaintiff’s human rights but also countervailing interests (protection of the plaintiff and of her children). The second defendant, therefore, did not act incompatibly with any of the plaintiff’s human rights under the Charter.

“The question of where and with whom the plaintiff was going to reside following the discharge of the ITO was a matter of very considerable practical significance. These matters were relevant to the consideration of whether the criteria in s 8(1)(e) of the Act applied to the plaintiff. The discharge of a patient with mental illness into the community without appropriate accommodation and treatment arrangements in place could have very significant adverse consequences for the individual.” (Para 102)
“The first defendant’s consideration of the criteria in s 8(1) of the Act mandated that he have regard to the plaintiff’s human rights because the inevitable consequence of the making of the recommendation would be the involuntary detention and medical treatment of the plaintiff. I accept the first defendant’s evidence that when considering the application of the criteria he took into account countervailing interests, namely his belief that it was necessary to keep the plaintiff in hospital and treat her against her will in order to protect her and her children from harm.” (Para 118)

Mental Health Act 1986 • Section 8–“Criteria for involuntary treatment (1) The criteria for the involuntary treatment of a person under this Act are that— (a) the person appears to be mentally ill; and (b) the person's mental illness requires immediate treatment and that treatment can be obtained by the person being subject to an involuntary treatment order; and (c) because of the person's mental illness, involuntary treatment of the person is necessary for his or her health or safety (whether to prevent a deterioration in the person's physical or mental condition or otherwise) or for the protection of members of the public; and (d) the person has refused or is unable to consent to the necessary treatment for the mental illness; and (e) the person cannot receive adequate treatment for the mental illness in a manner less restrictive of his or her freedom of decision and action.” • Section 9– “Request and recommendation for involuntary treatment (3) A registered medical practitioner must not make a recommendation under subsection (1) unless he or she considers that— (a) the criteria in section 8(1) apply to the person; and (b) an involuntary treatment order should be made for the person.” Charter of Human Rights and Responsibilities Act 2006: • 10. “Protection from torture and cruel, inhuman or degrading treatment (1) A person must not be— (c)subjected to medical or scientific experimentation or treatment without his or her full, free and informed consent.” • 12. “Freedom of movement Every person lawfully within Victoria has the right to move freely within Victoria and to enter and leave it and has the freedom to choose where to live.” • 21. “Right to liberty and security of person (1)Every person has the right to liberty and security. (2)A person must not be subjected to arbitrary arrest or detention. (3)A person must not be deprived of his or her liberty except on grounds, and in accordance with procedures, established by law.” • 32. “Interpretation (1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.” • 38. Conduct of public authorities (1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.”