The Charter and mental health

MH6 v Mental Health Review Board (General) [2008] VCAT 846 is a sad case about a man who was thrown off his horse back in 1982 and suffered a brain injury. Detioration and imprisonment for indecent assault ensued and he ended up committed to Mary Guthrie House. Despite the warm and fuzzy name, this is a high secure detention facility for adults with brain disorders. While the average stay is 6-12 months, MH6 has been there since 2002. He now wants out.

Standing in his way is the Mental Health Act 1986, which provides for continued involuntary treatment:

36 (1) This section applies on an appeal or review for a patient who is detained in an approved mental health service under an involuntary treatment order.

(2) If the Board considers that the criteria in section 8(1) do not apply to the patient, the Board must order that the patient be discharged from the involuntary treatment order.

(3) If the Board is satisfied that the criteria in section 8(1) apply to the patient, the Board must confirm the involuntary treatment order.

MH6 disputed the application of one of the s8(1) criteria:

(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.

His counsel tried to rely on the Charter:

Mr Hancock in his written submission contended that in making any determination under s 8(1)(e), I must consider this provision of the Mental Health Act in light of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (The Charter). Without drawing to my attention in what way, and where relevant, which particular parts of the protected rights claimed were engaged, Counsel simply submitted that the following sections of the Charter were relevant :

10 Protection from torture and cruel, inhuman or degrading treatment

12 Freedom of movement

21 Right to liberty and security of person

22 Humane treatment when deprived of liberty.

His submissions in support of his contentions as to the application of those sections of the Charter were one and the same as those set out at the commencement of my consideration of the application of s 8(1)(e). Mr Hancock did not elaborate further on how the sections of the Charter applied.

Those do seem to be the relevant rights, especially given that Charter s. 10(c) contains a right against non-consensual medical treatment.Alas, it isn’t clear whether this is supposed to be a Charter s32 argument or a Charter s38 argument. Opposing counsel treated it as the former:

Ms Hartley in her submission in reply submitted that the Mental Health Act is an Act that is incompatible with a human right to the extent that it provides for circumstances under which it is lawful to make orders for involuntary detention and treatment. She submitted that there was no issue in the present case which gave rise to a legislative interpretation issue, and that the task of the Tribunal is not to resolve a question of statutory interpretation, but rather to apply the provisions of the Mental Health Act to the particular facts. Counsel submitted that s 10 of the Charter would only have application if a mental health service treated a person as an involuntary patient when the requirements of s 8 were not made out.

The thrust of this is that there’s a distinction between interpretation and fact application, with VCAT’s task being the latter. If this submission is a general one about the Mental Health Act and VCAT, then it’s wrong. Charter s32(1)‘s interpretation mandate applies to everyone and Charter s6(2) clearly provides that this division of the Charter applies to tribunals, including VCAT. Moreover, in my view, there’s no sharp divide between interpretation and application; every case involves a mix of the two. On the other hand, given that MH6’s counsel failed to identify a particular interpretation issue that would make a difference, it may well be fair to say that Charter s32 isn’t engaged in this case. Maybe. However, I’m very dubious about that last sentence, which seems to say that rights only apply if VCAT steps outside of its statute. The whole point of the interpretation mandate is that it might alter how a statute works. Maybe this was an attempt to rely on Charter s. 38(2) to rebut a possible application of Charter s. 38(1)? In that case, the statement is far too broad, as the issue is whether s8 makes it reasonable for VCAT to act incompatibly with MH6’s rights.

Alas, aided or otherwise by counsel, here is VCAT Deputy President Ann Coghlan’s Charter analysis:

Mr J’s human rights as specified in the Charter are plainly engaged in several respects by the decision of the Board. At the least, the decision 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)). Section 7(2) of the Charter sets out the circumstances in which a human right may be limited. It states :

(2) A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including –

(a) the nature of the right; and

(b) the importance of the purpose of the limitation; and

(c) the nature and extent of the limitation; and

(d) the relationship between the limitation and its purpose; and

(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

In this case, I have considered the medical and other evidence concerning Mr J and his need to be involuntarily detained and subjected to the treatment plan under the provisions of the Mental Health Act. In my view, these steps are necessary in Mr J’s own interests, having regard to his proven medical condition. The steps proposed are proportionate to other circumstances presented by his case and indeed represent the least limitation on his human rights necessary in these circumstances. I have therefore concluded that my decision is justified and is not incompatible with Mr J’s human rights. The 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.

Again, it’s now clear whether the interpretation mandate or the conduct mandate is being discused here. But the thrust of the analysis is that Coghlan has decided that her decision is a reasonable limit under Charter s. 7(2). I’m not at all sure that this analysis is appropriate. First, as I read Charter s. 7(2), it’s a test for when a law can limit a Charter right. So, first you construe the law. Then you decide whether any actions you take are reasonable under that law using the test in Charter s. 38(2).  I admit that the words ‘under law’ could be read as covering conduct done under a law, but that would render s38(2) redundant.

Second, and more importantly, she equates her finding that detaining MH6 is the least restrictive option with a conclusion that her decision to detain him is the least restrictive limit on MH6’s rights. That might be correct if the factual finding in this case was incontrovertible. But it was open to some doubt and Coghlan had to make a judgment call based on the evidence. To apply the terms of the legislation, she had to be ‘satisfied’ about her call. The crucial question she ignores is what definition of ‘satisfied’ is the least restrictive one for human rights purposes. It may be that the Charter has altered how the risk should be weighed, as the Court of Appeal held it should be altered in the case of a similar risk assessment dilemma that applies in relation to dangerous offenders. It seems like a significant statutory provision that gravely affects human rights has been given short shrift in terms of Charter analysis. Wasn’t the re-visiting of these vague statutory words in significantly intrusive statutes one of the main points of the Charter?

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