Right to reasons and the Mental Health Review Tribunal

The Court of Appeal handed down a unanimous judgment this year in MDF v Central Queensland NAMHS [2020] QCA 108.

The court decided that the Queensland Mental Health Review Tribunal (MHRT) was obliged to provide the appellant reasons for the tribunal’s decision to issue an examination authority in relation to him.

This is the case even though the tribunal is not required to provide reasons for such decisions under the Mental Health Act 2016 (Qld). Although the immediate impact of this decision may be limited to an increase in the MHRT’s workload, I argue that there could also be wider implications.

Involuntary treatment for mental health in Queensland: a background

To give someone medical treatment without consent is a significant restriction of their rights. Because of this, the Mental Health Act 2016 (Qld) requires three separate steps to be followed before a person can be given involuntary treatment for mental illness: examination, assessment and authority.

The first step is an examination of the person.1 If the person does not consent to being examined, an examination authority may be issued by the MHRT.2 On examination, a doctor or authorised medical health practitioner must decide whether to make a recommendation for assessment.3 The assessor must then decide whether to make a treatment authority for the person.4

A treatment authority can only be made if the assessor finds that the treatment criteria apply to the person,5 and that there is no “less restrictive way” for the person to receive treatment for their mental illness.6 A treatment authority authorises involuntary treatment for mental illness. Within 28 days, the MHRT must review the treatment authority and decide whether to confirm or revoke it.7

Facts of the case

On 14 June 2018, the MHRT issued an examination authority for the appellant. On 15 June 2018, health officials, with the assistance of police, entered the appellant’s home and detained him for examination. It appears that the application for an examination authority was prompted by behaviour that had disturbed the appellant’s neighbour, including making loud noises at night.

The appellant was initially held at an emergency department before being moved to a mental health unit. An assessment was conducted, and on 18 June 2018, a treatment authority was made. The appellant was treated as an inpatient in the mental health unit until he was discharged home on 22 June, and he was treated as an outpatient until 16 July 2018.

On 16 July 2018, the MHRT reviewed the treatment authority, and decided to revoke it, meaning that the appellant was no longer subject to an order for involuntary mental health treatment. Nevertheless, the appellant wished to challenge the decisions that had been made that led to his detention and treatment.

Court decision

The appellant was self-represented in the trial and the appeal. His claims at first instance and on appeal included a number of grounds that were unsuccessful. The one ground on which the appellant succeeded was in his bid to have the tribunal provide him reasons for its decision to issue an examination authority.

This claim, which was not explicitly pursued at trial, was made under s38 of the Judicial Review Act 1991 (Qld). Under the Judicial Review Act 1991 (Qld) a person “aggrieved by a decision to which this Act applies” has the right to receive reasons for that decision.8 A decision “to which this act applies” is defined as “a decision of an administrative character made…under an enactment”.9

The Court of Appeal found that the decision to issue an examination authority was “expressly authorised” by the Mental Health Act 2016 (Qld), and was of an administrative character in that it “affected legal rights or obligations”.10

Indeed, the court found that the decision reduced the appellant’s rights “in a very substantial way”.11 The examination authority, the court noted, empowered medical staff to enter his home, detain and examine him, using “reasonable” force to do so. As the court stated, without this authorisation, such actions would be common law wrongs, or even criminal offences.12

Therefore, unless otherwise excluded, the court found s38 of the Judicial Review Act 1991 would apply to the decision to issue an examination authority. The trial judge, Crow J, had also acknowledged that depriving citizens of their liberty in this way was “a serious matter”,13 but had found three separate arguments for not requiring the tribunal to provide reasons for its decision to issue an examination authority. The Court of Appeal considered each of these arguments in turn.

Reason 1: Implied exclusion

Crow J’s first reason was based on interpretation of the Mental Health Act 2016 (Qld). Bar one exception, parties who might be subject to an order made by the MHRT are explicitly entitled to be given notice of proceedings.

Section 736 of the Mental Health Act 2016 (Qld) then grants parties that are “entitled be given notice of the hearing” the further right to attend the proceedings,14 and section 756 grants these parties the right to be given reasons on request for the decision reached by the tribunal.15

However, people potentially subject to examination authorities are uniquely not entitled to be given notice of their hearing.16 This means that sections 736 and 756 do not apply to them. Crow J found that this showed “clear legislative intent” to exclude those people subject to examination authorities from the right to attend the proceedings, and the right to receive reasons.17

The Court of Appeal accepted the trial judge’s conclusion that the Mental Health Act 2016 (Qld) had impliedly excluded the right of the subject of an examination authority application to attend the proceedings.18

It noted that there were provisions relating to examination authorities allowing information to be withheld from the person subject to the authority to ensure the execution of the authority was not frustrated.19 But did this mean that the appellant was also excluded from the right under s38 of the Judicial Review Act 1991 (Qld) to receive reasons for the decision?

The court noted that, as a later act, the Mental Health Act 2016 (Qld) would impliedly repeal the Judicial Review Act 1991 (Qld) to the extent of any inconsistency. However, the court did not find that the Acts were inconsistent. Although the Mental Health Act 2016 (Qld) did not grant a right to reasons for examination authorities, it did not prevent reasons from being provided, meaning it was possible to obey both laws simultaneously.20 Moreover, the court noted that one of the purposes of the Judicial Review Act 1991 (Qld) is to provide remedies, like the right to reasons for administrative decisions, “where such remedies were not otherwise conferred by statutes under which the decisions were made”.21

The court thus concluded that the presumption that the legislature had intended both sets of provisions to operate together had not been displaced.

Reason 2: ‘Spent force’

The second reason given by the trial judge was that the decision to issue an examination authority had become a “spent force”. Crow J found that the decision had been “superseded” by two later decisions; firstly, the decision to make a treatment authority, and secondly, the tribunal’s decision to revoke that authority. Therefore, the appellant could no longer be considered “a person aggrieved” by the tribunal’s decision to issue an examination authority.22

The Court of Appeal disagreed. It noted that the decision to issue an examination authority enlivened powers under the Mental Health Act 2016 (Qld) to enter dwellings and detain people using reasonable force that were specific to examination authorities. Moreover, the later decisions in relation to the appellant did not review the original decision by the tribunal to issue the examination authority. As such, they were separate decisions that could have no bearing on the validity of the examination authority decision.23

Reason 3: Attorney-General certificate

The final reason given by Crow J concerned the operation of s36 of the Judicial Review Act 1991 (Qld). Under that provision, if a person has requested reasons for a decision, the Attorney-General may certify that the release of information within those reasons would be “contrary to the public interest”.

In this case, the Attorney-General had issued a certificate stating that certain information within the reasons was confidential, and thus should not be released. This does not prevent a redacted version of reasons being provided, but under s37(1)(b) of the Judicial Review Act 1991 (Qld), the tribunal did not have to provide a statement of reasons if the statement would be rendered “false or misleading” without that redacted information.

Crow J had agreed with the tribunal that the reasons would be misleading if the information that the Attorney-General deemed confidential was removed.24[24]

The Court of Appeal disagreed with this conclusion. It found that even though the redacted parts of the reasons comprised a significant proportion of the reasons, the redacted version was nevertheless not rendered false or misleading by the removal of the information.25

Effect of decision

The immediate implication of this decision is that the MHRT will now have to supply on request reasons for decisions to issue an examination authorities.

It may be the case that the Attorney-General will wish to review these reasons to ensure that the release of information contained in them is not contrary to the public interest.

Thus, depending on the number of requests received, this decision may have implications for the workload of both the Attorney-General and the tribunal. However, as noted, the tribunal is already required to provide reasons on request for other decisions it makes, and examination authorities are far from the most common type of proceeding the tribunal hears. In 2018-2019, the tribunal considered 540 examination authority matters compared to 16,352 treatment authority reviews, and 1777 forensic order reviews.26

There is another reason why this decision may not be of immediate practical significance for the MHRT. Recall that, in this case, the tribunal had issued the examination authority for the appellant, but when reviewing his treatment authority one month later, decided to revoke it.

This is not a common occurrence. In 2018-2019, the tribunal revoked treatment authorities in just 1% of matters.27 Those parties whose treatment authorities are confirmed are more likely to wish to challenge the authority under which they are currently treated than the original examination authority.

The Mental Health Act 2016 (Qld) grants these parties the right to appeal the examination authority decision to the Mental Health Court, meaning appellants do not need to exercise rights under the Judicial Review Act 1991 (Qld). These appeals are by way of rehearing,28 meaning that the appellant does not have to show an error in the reasoning of the tribunal in order to succeed.

Moreover, as the “spent force” argument shows, the treatment authority is a separate matter from the examination authority, so requesting reasons for the examination authority will be of little assistance for those seeking review of the treatment authority.

Broader context: Reviewing mental health tribunal decisions

Nevertheless, it is possible to see this case as part a wider evolution in the attitude to involuntary treatment for mental illness that has taken place in society, reflected to some extent in judicial decisions.

In the 1994 case Harry v Mental Health Review Tribunal,29 the NSW Court of Appeal stated that powers granted to mental health tribunals to order involuntary treatment were “beneficial”. As a result, the court found that “mere technical difficulties” should not negate the power of tribunals to order involuntary treatment, because to do so “may do damage to the client”.30

Fifteen years later, in MH6 v Mental Health Review Board,31 the Victorian Court of Appeal considered a challenge to tribunal procedure that authorised involuntary treatment for mental health. It noted that the power to order such treatment, while not intended to be punitive, “can have a grave impact upon the rights or interests of an individual”.32 Therefore, rules of procedure that applied to proceedings involving a penalty should apply in those cases.

The Queensland Court of Appeal’s approach in this case is clearly more in line with MH6 v Mental Health Review Board than Harry v Mental Health Review Tribunal. The court emphasised the dramatic restriction of rights that an order for involuntary detention and examination entailed.

This informed its finding that rights granted to such parties would apply unless specifically excluded. Thus, it signals that courts in the future will be more willing to require decisions of mental health tribunals to be subject to procedural safeguards.

This is important, because rules of procedure can be a vexed question in mental health tribunals. They are required to be as quick and informal as possible, but at the same time must observe the rules of natural justice.33 With this difficult balance in mind, Professor Tamara Walsh from the University of Queensland and I recently conducted a study into the operation of the Queensland Mental Health Review Tribunal.34

We interviewed lawyers and advocates for people with matters before the tribunal to get their perspective on the decision-making processes of the tribunal. We then compared what they told us to what the common law rules of procedural fairness required.

We concluded that, if what our participants told us was accurate, there were some potential issues with regard to procedural fairness and the tribunal’s decision making. In particular, our participants had concerns about the quality of the evidence that was presented to the tribunal by health officials. The lawyers and advocates told us that evidence often included allegations and hearsay, but the hearings did not provide an adequate opportunity to challenge that evidence. Moreover, participants in our study thought that the evidence from health officials was given disproportionate weight by the tribunal, such that in most cases the confirmation of a treatment authority was a foregone conclusion.

It remains to be seen whether the concerns uncovered in our study will result in successful judicial challenge. However, the evidence of MDF v Central Queensland NAMHS suggests that future courts will take procedural requirements affecting the MHRT very seriously.

Conclusion

The decision in MDF v Central Queensland NAMHS may be of little immediate impact, but it sends an important signal about rules that apply to mental health tribunals. While we may accept that involuntary treatment for people with mental illness is at times warranted, we must also accept that it is a drastic invasion of people’s rights. Therefore, the procedural safeguards put in place around this decision-making must be scrupulously observed.

Dr Sam Boyle is a lecturer in the School of Law, Queensland University of Technology.

Notes
1 Mental Health Act 2016 (Qld) s31.
2 Mental Health Act 2016 (Qld) s504.
3 Mental Health Act 2016 (Qld) s31(1).
4 Mental Health Act 2016 (Qld) s49.
5 Mental Health Act 2016 (Qld) s12(1).
6 Mental Health Act 2016 (Qld) s43(1).
7 Mental Health Act 2016 (Qld) s413(1)(a).
8 Judicial Review Act 1991 (Qld) ss20(1) 32(1) 38.
9 Judicial Review Act 1991 (Qld) s4.
10 MDF v Central Queensland NAMHS [2020] QCA 108 [39].
11 MDF v Central Queensland NAMHS [2020] QCA 108 [40].
12 MDF v Central Queensland NAMHS [2020] QCA 108 [40].
13 A v Central Queensland Network Authorised Mental Health Service [2019] QSC 15 [76].
14 Mental Health Act 2016 (Qld) s736.
15 Mental Health Act 2016 (Qld) s756.
16 Mental Health Act 2016 (Qld) s503,
17 A v Central Queensland Network Authorised Mental Health Service [2019] QSC 15 [83].
18 MDF v Central Queensland NAMHS [2020] QCA 108 [38].
19 Mental Health Act 2016 (Qld) s35(2).
20 MDF v Central Queensland NAMHS [2020] QCA 108 [42].
21 MDF v Central Queensland NAMHS [2020] QCA 108 [42].
22 A v Central Queensland Network Authorised Mental Health Service [2019] QSC 15 [61].
23 MDF v Central Queensland NAMHS [2020] QCA 108 [47].
24 A v Central Queensland Network Authorised Mental Health Service [2019] QSC 15 [100].
25 MDF v Central Queensland NAMHS [2020] QCA 108 [67].
26 Mental Health Review Tribunal, Annual Report 2018–2019, 21.
27 Mental Health Review Tribunal, Annual Report 2018–2019, 28.
28 Mental Health Act 2016 (Qld) s546(2).
29 (1994) 33 NSWLR 315.
30 Harry v Mental Health Review Tribunal (1994) 33 NSWLR 315, 335.
31 [2009] VSCA 184.
32 MH6 v Mental Health Review Board [2009] VSCA 184 [25]: [26] citing Al Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562.
33 Mental Health Act 2016 (Qld) ss733(3)(a)(b).
34 Boyle, Sam and Walsh, Tamara (2020) ‘Procedural fairness in mental health review tribunals: the views of patient advocates’, Psychiatry, Psychology and Law.

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