The right to review

The central question in the recent Charter-focused Mental Health Review Board ruling was what happens when this provision is breached:

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

The respondent had been on a CTO since 2005, but the extension of his CTO in early 2007 was not only not reviewed within 8 weeks, but not reviewed at all prior to a further extension early this year. So, was his CTO still valid?

Ordinary law is good at posing questions like this but not at answering them. As the Brennan High Court observed in Project Blue Sky v ABA [1998] HCA 28:

An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.

Various High Court cases refer to such hard to pin down tests as parliament’s intent, the consequences of the various options and (in the unfortunate Gleeson era) circular tests about jurisdiction. The Mental Health Act has its own interpretative provision, but it also pushes in competing directions on this issue:

4(2) It is the intention of Parliament that the provisions of this Act are to be interpreted and that every function, power, authority, discretion, jurisdiction and duty conferred or imposed by this Act is to be exercised or performed so that-

(a) people with a mental disorder are given the best possible care and treatment appropriate to their needs in the least possible restrictive environment and least possible intrusive manner consistent with the effective giving of that care and treatment; and

(b) in providing for the care and treatment of people with a mental disorder and the protection of members of the public any restriction upon the liberty of patients and other people with a mental disorder and any interference with their rights, privacy, dignity and self-respect are kept to the minimum necessary in the circumstances.

Unsurprisingly, the MHRB favoured the interpretation that s30(4) had no effect on the validity of CTOs, a reading it said would preserve the best possible care of the mentally ill (continued compulsory treatment, naturally) while allowing the Board ‘an appropriate degree of flexibility’. (It did, however, hold that s30(4) required substantial compliance, although apparently this could be met by  not doing a review at all for twelve months!)

This sort of interpretative neverland is the raison d’être of the Charter’s interpretation mandate:

32(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.

But there’s a problem: the Charter only contains a review right for criminal convictions and sentences (Charter s. 25(4)) or to a review of the lawfulness of detention  (Charter s. 21(7)). Even if CTOs were considered to involve detention (because of either the requirement to attend a medical facility for treatment or the potential for an order on where to live), Charter s. 21(7) wouldn’t assist in interpreting s. 30(4) because it is only satisfied by review by a court (rather than a tribunal like the MHRB.) So, what rights are engaged by a provision requiring a review?

The MHRB’s hunch was to focus on Charter s. 24(1):

24(1) A… party to a civil proceeding has the right to have the… proceeding decided by a… court or tribunal after a fair and public hearing.

The MHRB conceded that promptness (and, indeed, compliance with the applicable law) is one aspect of fairness, but also reasoned that fairness may also be best served by not having to do a review within the statutory time limit. A longer period would allow subjects of CTOs to seek more evidence, such as independent expert assessments. (This argument by the MHRB was considerably bolstered by the fact that the delay in this case was actually the result – initially at least – of the respondent’s wish to do exactly that.)

While I agree that fairness isn’t always about speed, and that more time can be a good thing sometimes, the flaw in the MHRB’s thinking here is its assumption that the only way to meet the demands of fairness where a respondent is seeking further evidence is to postpone the review:

This position is exacerbated by the fact that the Board, as a statutory decision-making body under the Act, is given specific and strictly limited powers under s36C(2) to discharge an involuntary patient from a CTO, namely “(I)f the Board considers that the criteria in section 8(1) do not apply to the patient…”. This power presupposes a completed hearing takes place, evidence in respect of each of the five criteria is considered, and the Board applies those criteria to the facts that it finds based on that evidence to determine whether or not each of the five criteria is met in respect of that particular patient.

This strikes me as a grave misreading of the Board’s powers following a review:

36C(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 community treatment order.

(3) If the Board is satisfied that the criteria in section 8(1) apply to the patient the Board may (a) confirm or vary the community treatment order; or (b) revoke the community treatment order if satisfied on reasonable grounds that the treatment required for the patient cannot be obtained under the order.

The Board certainly has to revoke the order if it doesn’t find the criteria established, but it doesn’t have to confirm the order if it does find the criteria established; it could instead, say, adjourn its decision to a later date to consider further evidence. If this isn’t how s36C has been interpreted to date (as is apparent the case: see JM [1996] VMHRB 1)  then the interpretation mandate should be used to read s36C as allowing this flexibility. The upshot is that there is no reason to regard a strict requirement for an eight-week review as foreclosing the flexibility on timing that might be required to accommodate the respondent’s need to get more evidence. In short, the respondent could have his eight-week review and get his fairness too (down the track. And, of course, if that wasn’t possible, he could raise his new expert evidence any time he wanted to by exercising his appeal right.)

There is a good deal of uncertainty about how Charter s. 24(1) fits with continuing regulatory regimes like CTOs and similar orders (as opposed to once-off determinations like criminal trials or traditional civil litigation.) The Attorney-General, true to his recent miserly form, argued that CTOs and reviews of them are administrative arrangements (like driving licences) and therefore aren’t subject to a requirement of fair hearings at all. I’m very dubious about that, given the extreme nature of CTOs, which bear a lot of similarity to civil injunctions (or even criminal sentences!) If I had to make the call, I’d be inclined to find that CTOs are civil proceedings, initiated by a psychiatrist but ‘decided’ by MHRB at the review hearing. =On that approach, the ‘review’ of the MHRB is really a confirmation, in which case it’s clear enough what the consequences of not complying with s. 30(4) are.

But there was no need, I think, to rely on Charter s. 24(1), which is traditionally considered to govern how a hearing should happen, as opposed to what happens if it doesn’t.  Rather, the respondent (and his lawyers, the Mental Health Legal Centre) were spot on in focusing on the substance of what was happening to the respondent (being forced to take pills) and the relevant right that such forcing engages:

10 A person must not be-… (c) subjected to medical… treatment without his or her full, free and informed consent.

The key point to note is that this right is actually limited by a different section of the Act:

14(1) At any time, an authorised psychiatrist may make a community treatment order for a person who is subject to an involuntary treatment order if the authorised psychiatrist is satisfied that- (a) the criteria in section 8(1) apply to the person; and (b) the treatment required for the person can be obtained through the making of a community treatment order.

(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.

This section unquestionably limits the respondent’s rights under Charter s. 10(c) (not to mention several other rights.) Bizarrely, the MHRB – in a vague bit of its reasons – seemed to disagree, although fortunately it also addressed (as a fallback) the real issue, which was whether s. 14 is a reasonable limit under Charter s. 7(2):

A number of international decisions have upheld the view that involuntary detention and treatment regimes, under mental health legislation that establishes prior admission and review procedures, are lawful and a demonstrably justified limitation on human rights, notwithstanding that they in practice limit the rights of patients… under s10(c)…

The ‘prior admission… procedures’ of the Mental Health Act all revolve around decision-making by individual medical practitioners who know the patient well. That may well be OK for speedy initial determinations, but surely such non-consensual medical treatment can only be reasonable if the initial decision is subject to ‘review procedures’ that are sufficiently prompt to ensure that any wrong decisions by practitioners don’t result in too long a period of unjustified compulsory medical treatment. Section 30(4) provides for such reviews, of course, but the question is whether the CTO scheme is reasonable if CTOs stay in operation even if such a review doesn’t occur. That’s the crucial question in terms of how to interpret s30(4) compatibly with human rights.

But the MHRB’s Charter s. 32 analysis didn’t focus on that question, but rather a slightly different one:

To the best of its ability and within the administrative, financial and practical constraints within which it operates, the Board at all times endeavours to adopt fair and appropriate hearing practices, which provide necessary flexibility and capacity to adapt to the needs of individual cases. As far as possible, they clearly include conducting timely reviews in accordance with its statutory obligations.

The issue isn’t whether the MHRB is doing its best, but whether a law that allows CTOs to continue when the MHRB’s best efforts don’t result in a prompt review is compatible with human rights.  The MHRB made great play of three other factors:

First, that CTOs are a milder option than other orders traditionally used in mental health settings; but the relative intrusion of CTOs isn’t an answer to concerns about the absolute intrusion on the respondent’s Charter s. 10(c) rights purely on the say-so of his psychiatrist. (Indeed, given that the rest of s30 contains similar review requirements for the more intrusive orders in language that carries the same ambiguities as to consequences, surely the same interpretation issue and conclusion would follow for each of them.)

Second, the MHRB observed that the respondent’s psychiatrist did in fact regularly review the CTO; but that doesn’t overcome the danger of leaving the decision in the hands of one person, who doesn’t hold hearings, who doesn’t have to meet any traditional independent criteria; who isn’t bound by natural justice; and who isn’t a public authority under the Charter. Doubtless, psychiatrists are trained and subject to professional scrutiny, but I’ve got my doubts on whether that’s enough.

Third, the MHRB also observed that the respondent could have brought on the review at any time:

29(1) An appeal may be made to the Board at any time- (a) by an involuntary patient- (i) against his or her… community treatment order…

(4) The Board must commence the hearing of an appeal without delay.

Hmm. And what happens if the Board breaches s29(4)? Anyway, does a patient-iniated review suffice to overcome the lack of consequences if the Board skips its eight-week review? The MHRB thought so:

The delay continued as a result of failures by [the respondent] or his legal representatives to expedite the process of obtained the second psychiatric opinion, or to inform the Board as to progress or that the opinion was no longer required; by the treating team to monitor and inform the Board of its knowledge of [the respondent]’s progress in endeavouring to obtain the opinion; and by the Board registry staff to request regular information from each of the parties and representatives about [the respondent]’s progress in endeavouring to obtain the opinion and/or relisting the hearing before a division of the Board to consider whether a further adjournment was appropriate or the review should be finalised.

If you ask me, this sequence of events (and there was nothing to indicate that it was unusual) demonstrates exactly why relying on the adversarial system to bring on the review process is not sufficient in this context. (I don’t know much about mental health, but it also strikes me as pretty bizarre that the blame was partly placed on the respondent!) The MHRB also observed that the ’12 month’ limit on CTOs would ensure that the review would happen eventually, but I’m dubious that (a) it would necessarily happen, given that the previous review was just skipped; and (b) that a review a year after the psychiatrist’s decision suffices to make CTOs a reasonable limit on the right against non-consensual medical treatment.

This judgment, in my view, raises a question mark about the utility of Charter s. 32 as a mechanism for self-regulation. People interpreting their own statutory powers seem to find it too tempting to simply conclude that, because they are doing their best, the powers they are exercising are compatible with human rights. (See this post for a similar ‘the law is compatible because we’re great at our job’ VCAT ruling about another section of the Mental Health Act.)  I’d certainly like to see the MHRB’s interpretation of s30(4) reviewed by a body with some distance from the mental-health-treatment process like the Supreme Court. In fairness to the MHRB, though, it did recognise that it’s conduct in this case fell short of appropriate standards and that it’ll have to lift its game in light of the Charter. More on that in a later post.

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