A judgment at last!

Many thanks to Phil Lynch at HRLRC for forwarding me a judgment of the Mental Health Review Board, brought down on Tuesday. And here’s the excitement: of its 43 pages and 247 paragraphs, about half of them  – particularly 12 pages and 53 paragraphs of actual analysis by the Board – aredevoted to the Charter. That is easily more Charter analysis than has appeared in all the reported Charter judgments in Victoria combined. In fact, I’m pretty sure that it’s more than anything that has appeared in all the ACT judgments on the HRA combined as well. It is, in short, what I’ve long been waiting for: a detailed, step-by-step, analysis of some key operational and rights provisions of the Charter in an actual contested tral, where it’s obvious that both parties have made full arguments on these points and the decision-maker has taken those arguments seriously.

The downsides: It’s not a formal precedent in any way, as the MHRB is not a court. Indeed, the MHRB doesn’t even have to be comprised of lawyers, though any questions of law must be resolved by the Board’s legal member, in this case a Mr John Lesser. On the other hand, lawyers represented each side and the Attorney-General intervened and was made a party. The judgment doesn’t carry an official name and is not available on Austlii (whose database on MHRB judgments seems to have died sometime in 2006.) Nor is it available on the MHRB website. But perhaps it’ll be posted on the HRLRC website or somewhere soon enough. Anyway, I have it, thanks to Phil Lynch. [EDIT: Alas, the judgment isn’t publishable as it needs anonymising. I’ll refer to the man involved as ‘the respondent’, until I can come up with something better. For a detailed description and critique of the judgment, see Lynch’s analysis. FURTHER UPDATE: The anonymised judgment has now been published here.]

Here’s the short summary (and it’s a weird and new experience indeed to have more than two lines to ‘summarise’; it took me over an hour to read the thing once, and I will need to read it several times more!):

Back in 2005, the respondent was placed on a community treatment order (CTO) by his psychiatrist. CTOs are the mildest form of coercive power used against people with mental illnesses and are available when people have been made the subject of an involuntary treatment order (which can authorise someone’s detention for the purpose of being treatment) but a psychiatrist decides that detention isn’t necessary:

14(2) A community treatment order is an order requiring the person to obtain treatment for their mental illness while not detained in an approved mental health service.

(3) A community treatment order- (a) must specify the duration of the order, which must not exceed 12 months; and (b) may specify where the person must live, if this is necessary for the treatment of the person’s mental illness.

Clearly,  ‘Mildest’ doesn’t mean ‘mild’.  The respondent in particular is very unhappy about his and wants out of it, so he can stop taking his medication and move on to milder treatment like valium.

CTOs expire twelve months after they are made but they can be extended. GK’s CTO has been extended three times: in April 2006 (by the MHRB), in February 2007 (by the respondent’s psychiatrist) and January 2008 (again by his psychiatrist.) The problem is at the February extension was never reviewed by the MHRB as required by this provision of the Mental Health Act 1986:

30(4) The Board must conduct a review of the extension of a community treatment order within 8 weeks after the order is extended.

As is often the way, s30(4) doesn’t specify any consequences for breach. The respondent argues that the breach meant that his CTO expired sometime in 2007 and that the purported extension in 2008 and the planned review of it by the MHRB that was about to happen couldn’t happen, with the result that GK is free to stop taking his medication until his psychiatrist restarts the whole process. But the alternative argument is that nothing happened to the CTO and GK remains subject to a CTO. So, the principal (but not sole) question for the MHRB is a question of statutory interpretation: what are the consequences of a breach of s30(4) of the Mental Health Act 1986? This question is a tricky one in statutory interpretation and their are competing High Court cases on the issue. Applying non-Charter law, the MHRB, perhaps unsurprisingly, rejected the respondent’s interpretation. But what difference does the Charter make?

The answer to this question (‘none’, at least in this case) was reached through a consideration of multiple Charter provisions:

  • s4(1)(j): is the MHRB bound by the Charter’s conduct mandate and in what capacities?
  • s6(2)(b): does the MHRB have functions under Part 2 and, if so, what functions exactly and how is it bound?
  • s7(2): is s30(4) a reasonable limit on any Charter rights, including:
    • s10(c): non-consensual medical treatment
    • s13(a): privacy
    • s21: liberty
    • s24(1): fair hearing (and does the right to a fair hearing apply to CTOs or CTO reviews?)
  • s32: how does s32 work and is s30(4) of the Mental Health Act 1986 affected by it?
  • s49: what affect does s32 have on events that happened between 1/1/7 and 1/1/8?

In short, the decision addresses most of the big issues about the Charter’s operational provisions (with the notable exception of ss. 38 and 39, although these are mentioned in passing.) Alas – readers of this blog will be shocked to learn – not always correctly.

The result: I’ve got a hell of a lot of blogging to do. Watch this space for analysis….

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