The right to consent

Another June VCAT decision newly uploaded to Austlii, MM (Guardianship) [2008] VCAT 1282 is yet another case on the interaction between the Charter and Victoria’s laws for controlling the mentally unwell.It is also part of a developing and worrying trend in non-analysis of Charter ss. 7(2) & 32.

MM, like Queensland’s Dennis Ferguson, has a history of sexual offences against young boys. Unlike Ferguson, controlling MM does not require further fraught recourse to the criminal justice system. Instead, because MM has a mild intellectual disability, he falls within the regime of Victoria’s new Disability Act 2006, in particular a division

…for the making of a civil order, a supervised treatment order, to enable the detention of a person with an intellectual disability who poses a significant risk of serious harm to others.

The Disability Act (for people with disabilities, including ‘intellectual disabilities’), like the Mental Health Act 1986 (for people with a ‘mental illness’), is subject to a modern set of interpretative principles, including a least intrusion principle; however, whereas the mentally ill can only be treated in their ‘best health interests’ and ‘never as a punishment or for the convenience of others’, that principle is missing from the equivalent principles for treating people with an intellectual disability. Indeed, people with a disability are deemed to have the same ‘rights and responsibilities‘ as others. Now, where have I heard that notion before?

The interesting question raised by MM is whether a compulsory treatment order can be imposed on a person who actually wants the treatment in question (or most of it.) MM has been on an interim treatment order in a ‘generally locked’ facility since the day the Disability Act commenced and has been gradually working his way up from the most restrictive ‘stage 1’ to a less restrictive ‘stage 3’. He wants to continue his treatment at the least restrictive ‘stage 4’ but does not the order. (One difference is that the order would carry the prospect of being downgraded to more restrictive stages in some circumstances.)

Interestingly, no-one seems to doubt the genuineness of MM’s desire to be treated. However, a psychologist assessed his consent as follows:

Ms. Leigh-Smith expressed the opinion that MM was “unable but willing” to consent to voluntarily complying with a treatment plan to substantially reduce the significant risk of serious harm to another person. He appeared to be able to understand “at an intellectual level” the nature, purpose, benefits and risks of treatment, possible alternatives and the consequences of not receiving treatment. He appeared able to retain information in order to consider it and arrive at a decision. However, given MM’s “limited emotional insight”, Ms. Leigh-Smith questioned when considering the restrictive aspects of the treatment plan whether MM was able to integrate and analyse the emotional costs and consequences of participating in treatment. It was on this basis that Ms. Leigh-Smith was of the opinion that MM appeared unable to make “a fully informed decision” about his treatment plan.

In a sense, what MM is after is the converse of this Charter right:

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

MM wants to consent, to medical treatment but will he be allowed to?  This question depends on the meaning of a number of terms in the statutory preconditions for making a treatment order:

191(6) VCAT can only make a supervised treatment order if VCAT is satisfied that-

(a) the person has previously exhibited a pattern of violent or dangerous behaviour causing serious harm to another person or exposing another person to a significant risk of serious harm;

(b) there is a significant risk of serious harm to another person which cannot be substantially reduced by using less restrictive means;

(c) the services to be provided to the person in accordance with the treatment plan will be of benefit to the person and substantially reduce the significant risk of serious harm to another person;

(d) the person is unable or unwilling to consent to voluntarily complying with a treatment plan to substantially reduce the significant risk of serious harm to another person;

(e) it is necessary to detain the person to ensure compliance with the treatment plan and prevent a significant risk of serious harm to another person.

Interpreting these terms is, of course, is a job for the Charter’s interpretation mandate. However, before considering the Charter, VCAT Deputy President John Billings held that each of the statutory conditions was satisfied. Condition (d) was established because Billings held that, while MM could ‘broadly’ consent, the limitations stated by the psychologist meant that he could not ‘sufficiently’ consent. Conditions (b) and (e) were essentially satisfied because non-voluntary restrictions (which he held to satisfy the definition of ‘detain’) were a built-in part of the treatment program that MM was on (including requirements to abstain from alcohol and sex, and to comply with orders, or face increased restrictions.)

Then Billings held that the Charter does not alter any of this:

Mr. Townsend made what I think it is fair to describe as only brief submissions in relation to the Charter of Human Rights and Responsibilities Act 2006. He referred especially section 32 which requires that, so far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that it compatible with human rights.

The relevant human rights in this case included freedom of movement (section 12), freedom of association (section 16), the right to liberty (section 21) and the right not to be punished more than once (section 26). Some of these rights are qualified in the relevant sections. For instance, a person must not be subjected to arbitrary arrest or detention (section 21(2)), nor must a person be deprived of his or her liberty except on grounds, and in accordance with, procedures, established by law. It seems to me also that “punishment” should properly be distinguished from “treatment”, even if that does involve some restrictions.

Section 7(2) of the Charter provides that 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.

I need not restate what the Disability Act provides about balancing MM’s rights with the need to reduce the risk to others. What must further be borne in mind especially are the benefits that have been provided to MM that he and his family say they want to continue and the lessening of restrictions as MM continues to make progress, but also the still present risk of serious harm to other vulnerable members of the community. On that basis, to the extent that MM’s human rights would on the face of it be limited by a supervised treatment order, the Charter would permit those limits.

There are a number of particular trends here that alarm me:

  • the cherry-picking of modern statutory guidelines and principles, so that ‘least intrusive means’ language is downplayed in favour of competing purposes like ‘best care’ and community protection (see also here)
  • vague, unfocused Charter arguments being put by one of the lawyers (see also here)
  • tribunals doing non-Charter interpretation first, followed by an inevitable finding that the Charter makes no difference (see also here and here)
  • the tribunal’s focus on the limiting provisions of some rights, even when others lack those limits (see also here)
  • the tribunal’s analysis of Charter s7(2) in terms of ‘balance’, again ignoring the factor of less intrusive alternatives in Charter s. 7(2)(e)
  • the lack of any actual interpreting, in favour of a reasonableness analysis (see also here and here)

Completely missing in Billings’s Charter discussion is any analysis of the particular statutory questions raised by MM. Is s191(6)(d)’s requirement that the person be ‘unable or unwilling to consent’ satisfied by someone who wants to be treated but might not be emotionally engaged with every nuance of the proposed treatment. And can ss 191(6)(b) & (e) be satisfied for a person who is willing to be voluntarily treated merely because involuntariness is built-in to aspects of a treatment scheme? These questions aren’t answered by the reasonableness of compelled treatment in the abstract, but by the reasonableness (and absence of alternatives) of using compulsion to achieve a means that might, with a different scheme and a broader conception of consent, be successful without any coercion. (I assume that if MM used his voluntary status to opt out of essential components of his treatment then he would fall back within the statutory criteria.)

Until now, I’ve had a lot of intellectual sympathy for the view that Charter s. 32(1) only applies to statutory provisions whose ordinary interpretation fails that Charter s. 7(2) test, basically for the reasons given by the majority in Hansen v The Queen [2007] NZSC 7. But decisions like this one have me worried that Hansen makes it too easy for interpreters who are interpreting their ‘own’ statutory provisions (i.e. provisions that empower or restrain them) to side-step the interpretation mandate by recourse to non-analytical assertions that those provisions are broadly compatible with human rights. This concern mirrors the concern I have about public authorities relying on Charter s 7(2) to side-step the conduct mandate.

While I think Charter s 7(2) is an essential part of the rights  dialogue – amongst other things, avoiding both excessive effects and narrow interpretations of rights by parliament and the courts  – I am worried that it could be poisonous to a human rights culture, because institutions who would otherwise be constrained by the interpretation and conduct mandates are using a reasonableness analysis to ignore the relevant rights. Indeed, Elias CJ, dissenting in Hansen, had exactly those concerns about ss 5 and 6 of the NZBoRA, NZ’s equivalent provisions to Charter ss. 7(2) and 32:

I do not agree that s 5 applies to the s 6 preference for a meaning consistent with the enacted rights and freedoms in Part 2. The sequence suggested, by which consideration of justification under s 5 is a necessary step in determining whether an enactment is consistent with a right under Part 2, would set up a soft form of judicial review of legislation which seems inconsistent with s 4 of the Act. More importantly, it distorts the interpretative obligation under s 6 from preference for a meaning consistent with the rights and freedoms in Part 2 to one of preference for consistency with the rights as limited by a s 5 justification. I do not think that approach conforms to the purpose, structure and meaning of the New Zealand Bill of Rights Act as a whole. It risks erosion of fundamental rights through judicial modification of enacted rights according to highly contestable distinctions and values] The risk is I think illustrated by persistent suggestions that it is necessary to identify the content of rights by a balance to be struck in each case which weighs a wider public interest against the right.

The good news with dubious cases like MM is that, presumably, they will be appealed to the Supreme Court, which will hopefully make a more careful and less ‘she’ll be right’ analysis of the relevant statutory provisions in light of the interpretation mandate. If that doesn’t happen, I’ll certainly rethink my liking for the majority view in Hansen!

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