Thanks to Phil Lynch for sending me two old but previously unpublished Charter decisions by the Mental Health Review Board.
One, MHRB  08-133, is an early instance (from late February) of the unfortunate trend of decision-makers addressing a human rights issue solely in terms of Charter s. 7(2) and, inevitably, finding that the test is satisfied. The MHRB, noting its obligations under Charter s. 32 with regards to interpreting legislation, itself raised the concern that compelling a paranoid schizophrenic to undergo a fortnight injection (from a doctor she regarded, naturally, as persecuting her) was cruel, inhuman, degrading and non-consensual. But it concluded:
The Board’s view is that the severity and longevity of P’s illness (which it has found renders her incapable of giving (or refusing to give) informed consent to her treatment), together with the significant risks to her mental and physical health and significant social relationships, make it reasonable to limit P’s human rights in this instance.
I don’t doubt the MHRB’s sincerity here, but anyone who thinks that this is bland instance of self-assessment is a ‘human rights culture’ is kidding themselves. As I’ve argued repeatedly in this blog, Charter s. 7(2) is a tool for assessing laws, not conduct. The MHRB didn’t consider any of the terms of the Mental Health Act, so it wasn’t assessing laws. Instead, the relevant inquiry should have been whether the treating doctor or the MHRB was bound by the conduct mandate and, if so, whether it had a defence under Charter s. 38(2). In short, the relevant question for the MHRB is whether the obvious limitation of P’s rights was the only reasonable option under the governing law.
The other decision, MHRB  08-106, is dated 7 January 2008 (although the hearing that produced the reasons is dated 9 January 2008. Oops.) Either way, it beats Gray v DPP by a week or so as the first ever Charter judgment in the Charter’s fully active mode. And P, a man with a troubled combination of intellectual disability, mental health issues, substance abuse, anti-social behaviour and sexually transmitted diseases, beats Nick Corcoris as the first person to be denied the benefit of the Charter’s operative provisions. In this case, the Mental Health Legal Centre made a ‘Charter challenge’ against the use of injections on P, who is scared of them, again an obvious breach of his rghts against non-consensual medical treatment. The MHRB held:
[T]he Board has no power under the Charter to determine the compatibility of the Act, or any provisions of the Act, with the Charter, nor to declare particular decisions or actions to be in breach of specific Charter rights. Save for the s32 requirement in respect of the interpretation of laws, the Charter does not change the Board’s substantive decision-making role under the Act.
The Board’s point is basically that the Charter doesn’t contain any direct remedies for rights breaches and certainly doesn’t give the tribunal the power to give such a remedy. Indeed. But the Board’s analysis seems to downplay the differences the Charter can make:
- Interpretation: The Board acknowledges its new interpretative role, but then claims that it can’t determine the compatibility of the Mental Health Act with the Charter. It’swrong. Whenever the Board applies the MHA, it is obliged to think about its compatibility with the Charter and, if there is a problem, to re-interpret wherever possible. Charter s. 6(2)(b) gives all tribunals functions under Division 2 of Part 3, including interpretation. And Charter s. 3(2) defines functions to include powers and duties. So, Board, do your duty!
- Obligations of doctors: The Board makes this interesting claim:
[A]s a public authority, the Charter will require individual treating teams in area mental health services to take Charter rights into account when making… treatment decisions.
I don’t know enough about the legal and social basis of mental health services to know whether this claim is correct. Maybe mental health services are statutory bodies? If not, the argument has to be that they perform a public function on behalf of the State of Victoria. Not all doctors fit that description, but clearly some will. Anyway, if true, then doctors are not merely required to take rights ‘into account’ but to act compatibly with them, subject to the defences to Charter s. 38. The Board however says that that isn’t its problem:
Since its early days, the Board has taken the view that the specific type and mode of treatment provided to an involuntary patient is a matter of clinical judgment that should be determined by the treating team, in consultation with the patient, as part of the treatment planning process… In the Board’s view, the Charter has not altered that basic position, and the Board has no power to, nor should it, make treatment decisions in individual cases.
This might be good policy, but the Board hasn’t done the right analysis to conclude whether or not it is good law. If doctors are breaching their conduct mandate, then they are acting unlawfully. The question isn’t whether Boards should interfere with a clinical judgment, but whether they should test to see whether the treatment team is complying with the law. Arguably, legislation that doesn’t allow a tribunal to review whether or not behaviour is unlawful is itself incompatible with the Charter s. 7(2) test governing limitations on rights. So, the question then is whether the terms of the Mental Health Act can be reinterpreted to give the MHRB such a review role. (The MHA’s appeal and review criteria are pretty strict, so maybe not.)
None of this would be a problem if the MHRB were itself subject to the conduct mandate. But the MHRB held that it wasn’t:
In its decision-making role, each division of the Board is a ‘tribunal’ and, as such, is not a public authority…
The MHRB here is applying Charter s. 4(1)(j), which provides that the definition of a public authority does not include:
(j) a court or tribunal except when it is acting in an administrative capacity…
Although the Charter defines ‘court’, it doesn’t define ‘tribunal’. While this decision didn’t address the definition, the later MHRB decision on the Charter from July discussed it at length, giving all manner of statutory and procedural hooks for declaring itself to be a tribunal. In Sabet, it wasn’t disputed that the Medical Practitioners Review Board was also a tribunal. It seems uncontroversial that VCAT is a tribunal. Falling within this definition carries the rich reward of partial exemption from the conduct mandate. So, you can be that everyone will be claimed to be one.
But the exemption doesn’t apply if you are ‘acting in an administrative capacity’. To date:
- The Supreme Court and the MHRB have held that adjournment decisions aren’t administrative because they involve a judicial weighing up of decisions.
- The MHRB in this case held that its ‘decision-making role’ isn’t administrative
- The Supreme Court has held that the Medical Practitioners Review Board acts in an administrative capacity when it determines whether to suspend a doctor’s practice, as such a task would not be considered judicial power under the Constitution’s Chapter Three jurisprudence.
- President Bell of VCAT has suggested that quite a lot of VCAT’s functions may well be administrative.
The meaning of ‘tribunal… acting in an administative capacity’ is one of the most important and difficult distinctions in the entire Charter. It is also by far the least interesting one. That is because there is no policy purpose whatsoever behind this exemption from the definition of public authority.
The stated purposes of the exemption are to head off an unconstitutional splitting of Australia’s common law and to avoid a ‘horizontal effect’ in terms of human rights obligations. Whatever the merits of these arguments – very little, I’d say – they have virtually no connection to the exemption of all tribunals’ non-adminstrative functions. The MHRB, the MPRB and (almost entirely) VCAT don’t apply the common law, let alone develop it. Moreover, the MHRB, the MPRB and (in its ‘administative’, rather than ‘civil’, mode) VCAT mediate conflicts between individuals and the state. The ACT, despite being silly enough to accept the rationales for the Charter s. 4(1)(j), was smart enough to limit it to courts. In so doing, they avoid decisions like the MHRB’s that declare their impotence when it comes to Charter breaches within their purview. They also avoid a long and difficult line-drawing process, of which Hollingworth J’s adoption of all of the horrors of Chapter Three’s ‘jurisprudence’ into the Charter is surely (hopefully) the low point.
[EDIT: No. Thanks to a commenter for telling me that I’m sadly wrong about the ACT’s dodging that particular bullet. ACTHRA’s Dictionary says that:
“court” includes the following: (a) the administrative appeals tribunal; (b) the discrimination tribunal; (c) the guardianship tribunal; (d) the mental health tribunal; (e) an entity prescribed under the regulations.
That definition preceded the ACT conduct mandate, so I imagine it was there just to facilitate the intervention powers in ACTHRA ss. 35 & 36. But, anyway, it means that ACTHRA will have the same horrible trouble we have in delineating the reach of the conduct mandate. Sigh.]
I cannot understand how the drafters of Charter s. 4(1)(j) could be doing anything other than writhing in embarrassment every time this issues comes up before a Victorian tribunal (or supervisory court.)