07-06-10
FOR MENTAL HEALTH ADVOCATES
This case considered was an appeal against a community treatment order (CTO) by the Mental Health Review Tribunal (the ‘Tribunal’) on 22 July 2009. The Court allowed the appeal.
The Mental Health Act 2007 (NSW) allows for the Tribunal to make an order authorising compulsory treatment of a person in the community (s.51). The Tribunal may make a CTO under s.53 if satisfied that there is no other care of a less restrictive kind that is consistent with safe and effective care. The proposed treatment must be appropriate and reasonably available to the person and it must be found that the affected person would benefit from the order as the least restrictive alternative consistent with safe and effective care. Additionally there must be a plan that is appropriate and capable of implementation. Consideration is given to whether the affected person has a history of refusing to accept appropriate treatment which has led to serious deterioration of their mental condition. It is not necessary to consider this last aspect if the affected person has been under a CTO in the last twelve months, but the Tribunal must still be satisfied that the person is likely to continue in or relapse into an active phase of mental illness without the CTO.
The appeal was based on a contention that a community treatment order that provided, among other things, for the subject to be administered intramuscular depot injections, did not represent the ‘least restrictive alternative to safe and effective care’. The trial judge considered that the alternative of oral medication, together with regular review and supervision to monitor his condition, welfare and compliance, was appropriate and reasonably available, and would be less restrictive than the proposed plan. The judge did not consider the meaning of “less restrictive”.
The other elements of the CTO were satisfied. The Court held that the proposed treatment plan was capable of implementation and that it was likely that, absent of a CTO, the appellant would most likely become non-compliant with medication and relapse into an active phase of mental illness. However, the Court was not satisfied that there would be such relapse if the treatment plan had required the less restrictive oral medication with supervision, rather than the IMI. Because treatment plans typically do not offer alternative treatment options there was no provision in the treatment plan for use of oral medication. The appeal was allowed and the patient received no order for treatment at all, despite the Court’s finding that involuntary treatment was indicated to prevent relapse in an active phase of mental illness.
The Court was satisfied that the proposed treatment plan was capable of implementation [s 53(3)(b)] and that it was likely that the patient would eventually become non-compliant with medication and relapse into an active phase of mental illness if not required to take the medication under an order. However, the Court was not satisfied that a relapse would be likely if there was a “less restrictive“ order in place allowing oral medication. The Court was of the view that, as no alternative plan incorporating the “less restrictive” oral medication was proposed, the appeal should be allowed. The result was that no order for any treatment was made despite the Court’s finding that some form of involuntary treatment was appropriate. On one view the Court is substituting its judgment as to best clinical treatment options for that of the treating team directing in charge of the patient’s medical care.
The judgment also considers whether the Tribunal is authorised to amend treatment plans in the course of hearings, stating that “the Tribunal’s role is limited to considering whether an order should be made in terms of the proposed treatment plan or not at all, and that the Tribunal is not authorised to make a CTO otherwise than in accordance with the treatment plan placed before it by the applicant.” [23]. Strictly construed, this would mean that the Tribunal, faced with a proposed treatment plan that contained errors or omissions which, without correction, would mean that the plan is not ‘appropriate’ or ‘capable of implementation’, cannot proceed to make what may be a much needed CTO. It would seem appropriate that amendments made to the treatment plan with the approval of the treating team at the hearing should be acceptable, unless the amendment is of such substance as to change the plan to a new one.
Relevance of the Decision:
Advocates representing patients / affected persons before the Tribunal for CTO’s should consider carefully whether all of the elements of the Act have been made out by the applicant. Any amendments to proposed treatment plans must be made with the consent of the treating team, and not as unilateral substantive amendments by the Tribunal.
Unfortunately, an opportunity to judicially interpret the Mental Health Act’s cornerstone principle, “least restrictive… consistent with safe and effective care” has been missed on this occasion.
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