A tiny Supreme Court judgment from a month back has appeared on Austlii. Daniels v Bayside Health  VSC 472 involves an unrepresented man who is convinced that his son’s health and, possibly, his life is in danger from treatment he is receiving as an involuntary patient under the Mental Health Act 1986 at Thomas Embling Hospital. Bernard Daniels has been told be Dr Yolanda Lucire, a Sydney doctor, that his son Garth has been misdiagnosed as a schizophrenic and instead has had a variety of other conditions for the last ten years. Her opinion is that the treatment Garth is receiving, valium and zuclopenthixol, is likely to cause harm to him, in particular to his muscles. The treating doctors acknowledge that the medicine has its risks, but dispute the doctor’s diagnosis of a complicating condition called neuroleptic malignant syndrome.
Daniels senior lodged a review with the Mental Health Review Board but turned up at the Supreme Court because he wanted the medication stopped prior to that review. The Mental Health Act requires that all patients (and, presumably, as appropriate, their guardians) be told their rights. Recent new regulations specify that involuntary patients be told of their Charter rights in these terms:
The Victorian Charter of Human Rights and Responsibilities Act 2006 seeks to promote and protect certain human rights. The Charter defines the protected rights and requires public mental health services to act compatibly with these rights. The Charter also specifies when and how rights can be limited by law. For example, under the Mental Health Act 1986 you may be detained in a mental health service if it is necessary to protect your health or safety or the safety of others. However, any restrictions on your liberty and any interference with your rights, privacy, dignity and self-respect must be kept to the minimum necessary in the circumstances. If you have any questions about the Charter or how it might affect your treatment, contact one of the organisations described at the end of this statement.
This does a nice, if inevitably inadequate job, of explaining the nuances of the Charter. It doesn’t, for example, address the complex issue of whether the Charter places some fundamental new limits on treatment, notably when the treatment is a threat to someone’s health, as Lucire alleges in this case. The statement directs patients wanting more information to VEOHRC. It’d be interesting to know what they’d say in this circumstance.
Daniels senior raised the Charter in these terms:
In the course of his argument, Mr Daniels has raised a large number of matters, many of which are not really matters which I need or can determine at this stage. He raised questions of procedural fairness, the entitlement of his son not to suffer torture under the Charter of Human Rights and Responsibilities 2006, the entitlement of his son not to suffer death or to be at risk of death under the Charter.
Not a bad effort. Daniels has obviously read Charter ss. 9 and 10. The difficulty for him, alas, was that, testifying by phone before the Supreme COurt, Lucire didn’t support the claims of threats to Garth’s life or that there was an intermediate risk, e.g. to his heart muscles.
Daniels’s reference to procedural fairness – it’s not clear what fairness issues were at stake – was presumably to Charter s. 24. At the Protecting Human Rights conference, I observed that the Attorney-General, intervening in a Mental Health Review Board matter, was described in the judgment as submitting that the right to a fair hearing doesn’t apply to mental health matters. However, Joanna Davidson, in the audience, publicly and firmly objected to my ‘mischaracterisation’, insisting that the issue only arose in passing and that she only canvassed the law briefly. Her vehemence carried the clear implication, before an audience with considerable interest in this matter, that the Attorney-General would never take such a miserly stance. That very public exchange would be quite a relief to many stakeholders in mental health, including Daniels.
Justice David Byrne treated the matter with appropriate flexibility, deeming it to be an application for an interim injunction for a variation to Garth’s treatment order (even though no application was actually filed.) However, the application was dismissed:
In the circumstances and given the limited area of my concern in this type of application, I find myself not satisfied that the current medication is so dangerous as to warrant the intervention of the court, assuming that the court has the power to intervene in such a case. Accordingly, the application for interim injunctive relief must fail.
While Bryne’s stance is understandable, I’m not convinced that the test applied is appropriate in light of the Charter. While it’s clear that findings weren’t open about breaches of Garth’s rights to life and against degrading treatment, I think that things are a little different given a further Charter right:
21(1) Every person has the right to liberty and security.
What else could the right to security be but a right against physical harm, including the muscular damage mooted by Lucire? (The heading of Charter s. 21, for what it’s worth, refers to ‘security of the person’.) Sadly, Rob Hulls’s view of this right, as put by his lawyers, the VGSO, is that Charter s. 21(1) is only triggered by detention, at least in mental health cases. When Joanna Davidson stated this at the Protecting Human Rights Conference – and I responded that that meant that it didn’t give a right against forced injections – there was a gasp from many members of the audience. President Maxwell was similarly stunned when Pamela Tate put a similar view to him at this week’s SSOMA matter.
The summary of the Charter in the Mental Health Regs focuses on the familiar question of minimal intervention, mentioned in Charter s. 7(2)(e). But the approach of looking, one at a time, at the Charter s. 7(2) factors – as Tate is wont to do – ignores the overall requirement of reasonableness. Surely, when it is alleged that a public authority is doing something that will physically harm someone – and there is credible evidence before a court of such a risk – then the relevant question isn’t only whether the danger is sufficiently serious and imminent to warrant urgent intervention, but also whether or not there’s sufficient reason to continue with the treatment in the meantime. In my view, this question should be resolved by reference to the Charter’s statutory defence to the conduct mandate:
38(2) Subsection (1) does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision.
Byrne, in fairness, did allude to this issue:
The patient is, as I have mentioned, an involuntary patient and as such there is an obligation under section 12AD of the Act for him to be given treatment and, further, that such treatment may be administered, despite his lack of consent, in the appropriate circumstances set out in section 12AD(2).
Section 12AD is in these terms:
12AD(1) An involuntary patient is to be given treatment for his or her mental illness.
(2) If an involuntary patient refuses to consent to necessary treatment or is unable to consent to treatment for his or her mental illness, consent in writing may be given by the authorised psychiatrist.
It’s clear that s12AD(2) gives cover to breaches of the right against non-consensual medical treatment. But I’m far from convinced that 12AD(1) amounts to an inflexible mandatory requirement that would make it unreasonable for a doctor to temporarily withhold treatment that could cause (possibly permanent) physical harm to a patient, just because it’s need to treat his mental illness. The word ‘is’ isn’t quite emphatic enough for that purpose. And, to the extent that s12AD(1) could be interpreted in this way, surely the interpretation mandate, in combination with Charter s. 21(1), would require a more flexible interpretation?
Anyway, as Byrne noted, there’s a further statutory provision that supplies sufficient flexibility to allow the conduct mandate to bite:
That does not determine the matter because as has been drawn to my attention, section 19A obliges the authorised psychiatrist to prepare and review on a regular basis and revise, if required, a treatment plan for each patient.
Given this, it seems to me that there’s an onus on the hospital – who appeared but not as a party – to establish that Bryne’s mental health would suffer if treatment was temporarily stopped pending the MHRB hearing and that that harm outweighs the risk to his physical health. It may well be that the hospital put evidence to that effect, but it doesn’t clearly emerge in Byrne’s discussion.
One final thing to note: it seems unlikely that Daniels issued Charter s. 35 notices, as he is obliged to do in a Supreme Court matter. Fortunately, the Mental Health Regulations fail to mention this requirement, which would clearly things quite difficult for people like Bernard Daniels. And, also fortunately, Byrne, didn’t reject the Charter arguments on that basis. But isn’t it a pity that these bits of good fortune are needed if a lay person is to have any hope of relying on the Charter in an urgent matter?