Mental Health and the Charter

09-085 [2009] VMHRB (23 February 2009) In this case, which concerned the review of a community treatment order ('CTO') that prescribed a drug with serious side-effects, a number of significant issues arose in relation to the Charter:

• Is the Board a 'public authority' and/or a 'court or tribunal' for the purposes of the Charter?
• Are the authorised psychiatrist and the mental health services public authorities under the Charter?
• What is the meaning and application of 'cruel, inhuman or degrading treatment' in s 10(b) of the Charter?
• Does the limitations provision contained in s 7(2) of the Charter apply to s 10 rights?
• What is the impact of s32 of the Charter on the Board's interpretation of the Mental Health Act 1986 (Vic)?

Facts

At the time of the hearing, P was subject to a CTO under which he involuntarily received weekly injections of Depo Provera, an antimale hormone treatment designed to reduce sexual disinhibition.  P had been receiving the injections, along with other treatment for schizophrenia, since 2001 when he was charged and later convicted of a sex offence.  As a direct side effect of Depo Provera, P had developed severe osteoporosis.  At the time of the hearing P lived in the community with his mother.

P appealed to the Board for review of the extension of his CTO.  He argued that the administration of Depo Provera constituted cruel, inhuman and degrading treatment under s 10(b) of the Charter and that this limitation on his human rights, given the severe effect of the treatment, did not satisfy the proportionality test in s 7 of the Charter.  P argued that the references to 'treatment' or 'treatment plan' in the MHA meant 'treatment that was not cruel, inhuman or degrading'.  Consequently, the injections of Depo Provera could not be regarded as necessary treatment under s 8(1) of the MHA and should be stopped.

P also argued that the authorised psychiatrist had failed to take into account the effect of Depo Provera on P's human rights as required by s 19A of the MHA and that the Board should therefore order the authorised psychiatrist to revise P's treatment plan pursuant to s 35A.

P's appeal was opposed by the Werribee Mercy Mental Health Service and the Waratah Clinic - Inner West Area Mental Health Service (together 'the Service').

Decision

Is the Board a 'public authority' and / or a 'court or tribunal' for the purposes of the Charter?

The Board reaffirmed its previous decision in 09-003 [2008] VMHRB 1 (8 July 2008) that the Board is a tribunal but not a public authority when conducting its hearing function.  In doing so, the Board questioned the analysis of the Supreme Court of Victoria in Sabet v Medical Practitioners Board of Victoria [2008] VSC 346 (12 September 2008), stating that it 'may have arisen from an interpretation contrary to the logical and purposive analysis originally intended by the Victorian Parliament'.  The Board distinguished itself from the Medical Practitioners Board which was the subject of the decision in Sabet.  Consistent with its decision in 09-003, the Board held that it was only acting in an 'administrative capacity' when conducting registry type functions.

Are the authorised psychiatrist and the Service public authorities under the Charter?

The Board found that the authorised psychiatrist and, by implication, staff employed at the Service, were public authorities for the purpose of the Charter.  They were therefore bound by s 38 of the Charter to act and make decisions compatibly with the Charter rights of involuntary patients.  The Board observed that it is therefore important that the authorised psychiatrist and management of the Service provide appropriate and ongoing training for staff in relation to human rights and their obligations under the Charter.

What is the meaning and application of the term 'cruel, inhuman or degrading treatment' in s 10(b) of the Charter?

The Board held that s 10(c) of the Charter, which provides that a person must not be subjected to medical treatment without their consent, does not limit the protection against cruel, inhuman or degrading treatment found in s 10(b).  In doing so it rejected the Service's argument that the right to be free from cruel, inhuman or degrading applies only in a penal context.

The Board accepted that, as a general principle, measures which are therapeutic necessities will not be regarded as cruel, inhuman or degrading.  Notwithstanding, it held that even a therapeutic intervention can potentially constitute cruel, inhuman or degrading treatment where the side effects of the treatment reach a 'minimum level of severity'.  Since measures of therapeutic necessity do not involve deliberate infliction of pain or suffering, the threshold is a high one.  In assessing whether this threshold has been met, regard should be had to all the circumstances, including the duration of the treatment, its physical and mental effects and the sex, age and state of health of the patient.  Relying on the decision of the House of Lords in Regina v Secretary of State for the Home Department; ex parte Adam [2005] UKHL 66, the Board held that treatment will be inhuman or degrading if, to a seriously detrimental extent, it denies the most basic needs of any human being.

In P's case, the Board held that the balance between therapeutic benefits of the treatment on the one hand, and the serious side-effects on the other hand was a delicate one, but that the treatment had not yet reached the level of severity which would put it in breach of s 10(b).  That said, the Board expressed the view that further deterioration of P's bone density in accordance with the treatment plan could foreseeably cross this line and become cruel, inhuman or degrading treatment.

The implication of this finding was that the authorised psychiatrist and the Service were required to apply 'considerable care and attention' on a 'very regular basis' to monitoring and assessing the impact of the treatment plan on P's rights.  The Board noted that as soon as the balance tilts such that the side-effects start to outweigh the therapeutic benefits, then the treating team must act to prevent the treatment from attaining the minimum level of severity which engages the prohibition.  The more serious the potential risks of treatment, the more detailed and specific the outline in the treatment plan must be and the more intensive the monitoring process.

The Board formed the view that there were flaws in the development and implementation of the treatment plan which required further review and revision.  It also found that there had been a lack of effective communication between various treating services.  In light of this the Board ordered, pursuant to s 35A of the MHA, that the authorised psychiatrist review P's treatment plan to take into account the effect on P's rights and provide for greater accountability and monitoring.

Does the s 7(2) limitation provision apply to s 10 rights?

Though not essential to the Board's conclusion, the Board observed that it did not accept that s 10(b) was non-derogable and absolute and therefore outside the ambit of the s 7 limitation provision.  As a matter of statutory construction the Board found that there was nothing in s 10 to suggest that it should be treated any differently from the other rights.  However, the fact that international jurisprudence had treated similar rights as absolute did mean that in undertaking the proportionality analysis required by s 7(2), the starting point should be that a very high degree of justification is required to set any reasonable limits to the s 10 rights.

What is the impact of the Charter on the Board's interpretation of the MHA?

On the question of interpretation in accordance with s 32 of the Charter, the Board considered itself bound by the comments of Nettle JA in RJE V Secretary to the Department of Justice [2008] VSCA 265 and stated that this meant that, absent any ambiguity or prima-facie incompatibility between the legislation in question and a protected human right, ordinary principles of statutory interpretation should be applied.  Notwithstanding this, the Board was of the view that the five step approach articulated in the New Zealand case of Hansen v The Queen [2007] NZSC 7, could continue to be applied by the Board to assist in the statutory construction task.

The Board accepted P's argument that the terms 'treatment' and 'treatment plan' in s 8 and s 19 of the MHA meant 'treatment that was not cruel, inhuman or degrading'.  Interestingly, the Board did not apply the Hansen approach to reach this conclusion.  Instead in found that 'essentially' the term 'treatment' had always been interpreted in this way by the Board and was therefore consistent with the Charter on ordinary principles of construction.

Lisa Mortimer is on secondment to the Public Interest Law Clearing House from Allens Arthur Robinson