VCAT Considers Interpretative Provision in Involuntary Treatment Case

MH6 v Mental Health Review Board (General) [2008] VCAT 846 (7 May 2008) In a decision regarding the review of an involuntary treatment order under the Mental Health Act 1986 (Vic), VCAT considered the application of the obligation under s 32(1) of the Charter to interpret laws consistently with human rights.

Facts

In 1982 Mr J, the applicant, fell from a horse and suffered a serious brain injury.

Following a period of imprisonment for indecent assault, Mr J was admitted to Mary Guthrie House (‘a specialised, secure rehabilitation facility for adults aged 18 to 65 with co-morbid diagnosis of an acquired brain injury and psychiatric illness’).

At Mary Guthrie House, Mr J was subject to involuntary treatment for mental illness.  He applied to the Mental Health Review Board to be discharged.

The Board held that his continued treatment as an involuntary patient was necessary, pursuant to the Mental Health Act.

Mr J applied to VCAT for review of the Board's decision.

Decision

The Deputy President of VCAT affirmed the Board's decision.

At the outset, the Deputy President noted relevant objects of the Act as well as relevant principles of treatment and care (drawn from s 6A).  She stated that these were taken into account in reaching her decision.

The bulk of the Deputy President's judgment was devoted to applying the criteria for involuntary treatment laid out in s 8(1) of the Act.  She held that all of the criteria were satisfied, namely:

(a)           Mr J appears to be mentally ill

The Deputy President accepted expert medical diagnoses of impulse control disorder, psychotic disorder and mood disorder.

(b)           Mr J's mental illness requires immediate treatment and that treatment can be obtained by Mr J being subject to an involuntary treatment order

The Deputy President made particular reference to ‘the behavioural management programme which structures his whole day and is an integral part of his treatment and depends on the availability of skilled staff 24 hours a day’, as well as evidence from Mr J which suggested that there was a high risk that he would stop taking necessary medication if his involuntary status were discharged.

(c)           Because of Mr J's mental illness, involuntary treatment is necessary for his health or safety (whether to prevent a deterioration in his physical or mental condition or otherwise) or for the protection of members of the public

In concluding that involuntary treatment was necessary, the Deputy President relied on expert medical evidence which indicated that Mr J poses significant risks to himself and to others, and that he has poor insight.  She cited specific past examples of impulsive and sexually inappropriate behaviour.

(d)           Mr J has refused or is unable to consent to the necessary treatment for his mental illness

The Deputy President found that Mr J lacked necessary insight and understanding.  She concluded that, if released, there was a high risk that he would cease to take his medication.

(e)           Mr J cannot receive adequate treatment for his mental illness in a manner less restrictive of his freedom of decision and action

The Deputy President held that there was ‘no clear and consistent plan in place as an alternative.’  As such, she was not satisfied that there was any less restrictive means of adequately treating Mr J’s mental illness.  In reaching this conclusion, she took into account the limited financial resources available to Mr J.

Having concluded that the criteria under s 8(1) of the Act were satisfied, the Deputy President was required to review Mr J's treatment plan.

The diagnosis contained in the treatment plan was not supported by the expert medical evidence presented at the hearing, and the plan lacked detail regarding the ‘ongoing search for accommodation’.  Nevertheless, the Deputy President found that the plan was capable of implementation and that it satisfied the relevant requirements under the Act.

Application of the Victorian Charter

The Deputy President found that Mr J’s Charter rights

…are plainly engaged in several respects by the decision of the Board.  At the least, the decision of the Board involves the imposition of limitations on his right not to be subjected to medical treatment without his consent (s 10(c)), on his right to freedom of movement (s 12) and on his right to liberty (s 21(1)).

After extracting s 7(2) of the Charter (which provides for permissible limitations on human rights), she found that the involuntary detention and treatment of Mr J was necessary and proportionate.  She then concluded that ‘[t]he human rights issues raised on behalf of Mr J are wholly resolved on that basis and no question of the proper construction of the relevant provisions of the Mental Health Act arises.’

With respect, the Deputy President's conclusion appears inconsistent with the Charter.

Section 32(1) of the Charter provides that all statutory provisions must be interpreted in a manner that is consistent with human rights, so far as it is possible to do so consistently with their purpose.

There is nothing in the Charter to suggest that s 32(1) is only enlivened where a Charter right has been breached, or where the proportionality test under s 7(2) of the Charter is not satisfied.

Thus, the Charter required the Deputy President to interpret the provisions of the Mental Health Act, including the criteria set out in s 8(1), in a way that was compatible with human rights, so far as it was possible to do so consistently with the purposes of those provisions.

The decision is available at http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VCAT/2008/846.html.

Jessica Moir is a lawyer with Allens Arthur Robinson