Chapter 4: Declaration regarding the validity of a treatment order

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4.1 Relevant Legislation

Mental Health Act 2014 (WA) (the Act) s 89(2)(a), 121(1), 122(1), 397, 398, 399, 400, 401, 402 and 403.

4.2 Key Definitions

Adult means a person who has reached 18 years of age.

Carer means a carer under the Carer’s Recognition Act 2004 s 5 (s4 and 280(1)).  A person is a carer for the purposes of the Carer’s Recognition Act if he or she is an individual who provides ongoing care or assistance to a person who has a chronic illness, including a mental illness as defined in the Mental Health Act 2014 section 4 (or as otherwise specified in s5(1) of the Carer’s Recognition Act).  A person is not a carer under s 5(2) of the Carer’s Recognition Act if they provide services under a contract or as community work.  A person is not a carer for the purposes of the Carer’s Recognition Act merely because they are a spouse, parent, guardian, or providing care under an arrangement with the CEO of the Department of Communities.

Child means a person who is under 18 years of age.

Close family member means any of these people, whether the relationship is traced through consanguinity, marriage, de facto relationship, written law or natural relationship:  a spouse or de facto partner; a child; a step child; a parent; a step parent; a foster parent; a sibling; a grandparent; an aunt or uncle; a niece or nephew; a cousin.  If the person is of Aboriginal or Torres Strait Islander descent — any person regarded under the customary law, tradition or kinship of that person’s community as the equivalent of one of these persons (s4 and 281(1)).

Community treatment order means an order in force under the Act under which a person can be provided with treatment in the community without informed consent being given to the provision of the treatment.

Continuation order, for the purposes of Part 21 Division 4 of the Act means a continuation order made under section 89(2)(a) or section 121(1) in respect of an involuntary treatment order (s 397).

Inpatient treatment order means an order in force under the Act under which a person can be admitted by a hospital, and detained there, to enable the person to be provided with treatment without informed consent being given to the provision of the treatment (s 22).

Involuntary treatment order means an inpatient treatment order or a community treatment order.

Involuntary patient: is a person who is under an involuntary treatment order (s 21).

Mental health advocate means either the Chief Mental Health Advocate or a mental health advocate engaged under section 350(1) (s 4).

Personal support person means an enduring guardian or guardian; a child’s parent or guardian; a nominated person; a carer or a close family member; (s 4 and 7(2)(b)(i), (ii), (iii), (iv) or (v)).

Question of Law includes a question of mixed fact and law (s 403(1)).

Reviewable decision, for the purposes of section 455 means, in relation to a review proceeding:

  • the decision to make the involuntary treatment order; or
  • the decision to admit the long-term voluntary patient; or
  • the decision under section 262 to make, confirm or amend the order prohibiting, or limiting the extent of, the exercise of the right.

Review proceeding, for the purposes of section 455 means:

  • a review under Division 3 of an involuntary treatment order; or
  • a review under Division 5 of a long-term voluntary inpatient’s admission; or
  • a review under Division 9 of an order made under section 262 prohibiting a patient from exercising, or limiting the extent to which a patient can exercise, a right under section 261.

Treatment means the provision of a psychiatric, medical, psychological or psychosocial intervention intended (whether alone or in combination with one or more other therapeutic interventions) to alleviate or prevent the deterioration of a mental illness or a condition that is a consequence of a mental illness, and does not include bodily restraint, seclusion or sterilisation.

Treatment order that is or was in force means:

  • an involuntary treatment order;
  • a continuation order made under section 89(2)(a) or 121(1) in respect of an involuntary treatment order;
  • an order made under section 122(1) varying a community treatment order (s 397). 

4.3 Application requirements

Division 4 of the Act provides that patients and other interested persons may apply to the Tribunal to declare that certain orders are (or were) valid or invalid (ss 397 and 400).

4.3.1     Who can apply and how

Section 400 provides that the following persons may apply to the Tribunal for a declaration that a treatment order is or was valid or invalid:

  • the involuntary patient or the person who was the subject of the treatment order;
  • the psychiatrist who made the treatment order;
  • a carer, close family member or other personal support person of the involuntary patient or the person who was the subject of the treatment order;
  • a mental health advocate; and
  • any other person who, in the Tribunal’s opinion, has a sufficient interest in the matter.

Whether a person is one who ‘in the Tribunal’s opinion, has a sufficient interest in the matter’ is a preliminary question for the Tribunal to determine at the hearing.  If the Tribunal accepts the application on this basis, the Tribunal’s first order in the proceeding should be:

The Tribunal is of the opinion that the applicant has a sufficient interest in the matter to bring the application.     

The application should be in the Tribunal’s specified form available on the Tribunal’s website.

4.3.2     Timing
4.3.2.1 When the application may be made

An application may be made at any time and may be made irrespective of whether the order remains in force.  However, if the treatment order ceased to be in force more than 6 months prior to the date of application, the application cannot be made unless, in the Tribunal’s opinion, the applicant shows good reason for the delay (s 400(2)).

Where an order is no longer in force, the Tribunal is not required to determine the question of validity (s 403).  The Tribunal has the discretion to decide the matter if satisfied that it raises:

  • a question of law; or
  • a matter of public interest.
4.3.2.1 When the Tribunal must hear the application

The Tribunal must hear the application as soon as practicable (see s 484(c)).   As noted by the Court of Appeal in Geldert -v- Western Australia [2012] WASCA 226 at [50], ‘as soon as practicable’ does not mean immediately.  Rather:

The word ‘practicable’ is not defined in the Act. It has its natural and ordinary meaning of ‘capable of being put into practice, done or effected, especially with the available means or with reason or prudence; feasible’: Wright v Western Australia (2010) 203 A Crim R 339 [26], [148].

‘As soon as practicable’ does not mean ‘as soon as possible’ (see Western Australia v Rothmans of Pall Mall (Australia) Pty Ltd [2001] WASCA 25 [24].

4.4 Declarations on the Tribunal’s own initiative

Section 398(1) also provides that the Tribunal may, on its own initiative, declare that a treatment order is or was valid or invalid.

This issue might arise in circumstances where, in the context of a review under Part 21 Division 3, the Tribunal becomes aware of facts suggesting the involuntary treatment order is not prima facie valid.  For example, in reviewing a sequence of continuation orders, the Tribunal may discover that an order lapsed before it was continued.  In such circumstances, the Tribunal may need to conduct a hearing on, and make a formal declaration as to, the validity of the treatment order before conducting the initial or periodic review.

The Tribunal’s standard orders for reviews under Part 21 Division 3 include options for own initiative validity declarations.

A review on the Tribunal’s own initiative is a proceeding within the meaning of section 379, and the notice requirements in section 447 apply.  Parties have a right to be heard under section 459 and the Tribunal is bound by the rules of natural justice.  As noted in 3.3.1 of the COAT Manual, natural justice requires that before making a decision that may adversely affect a person’s rights or interests, the person should have an opportunity to be heard.  ‘Interests’ is not confined to legal rights.  Accordingly, where the Tribunal considers the validity of a treatment order on its own initiative, it should consider whether an adjournment is necessary to comply with these requirements.

4.5 Nature of proceedings

Part 21 of the Act contemplates that the Tribunal may exercise two different types of jurisdiction:  review proceedings (as defined in section 455 of the Act) and matters which are not review proceedings.

A review proceeding is defined by section 455 to include:

  • a review under Division 3 of an involuntary treatment order; or
  • a review under Division 5 of a long-term voluntary inpatient’s admission; or
  • a review under Division 9 of an order made under section 262 prohibiting a patient from exercising, or limiting the extent to which a patient can exercise, a right under section 261.

Proceedings under Part 21 Division 4 are not review proceedings as defined by section 455.  Accordingly, the provisions of section 455 of the Act do not apply.  The Tribunal is not involved in deciding whether patient is in need of the treatment order but rather whether the treatment order itself was valid.  Testing validity of a treatment order involves reviewing compliance with the statutory requirements enlivening the psychiatrist’s discretion to make a treatment order.

The relief is declaratory only.

4.6 Parties

Section 401 provides that for proceedings under Part 21 Division 4 the parties to the proceeding are:

  • the involuntary patient or the person who was the subject of the treatment order; and
  • if the proceeding relates to an application made under section 398(1) and the applicant is not the involuntary patient — the applicant.

The Tribunal has no statutory power to join other parties.

4.7 Statutory test

Division 4 provides no statutory framework for decision-making.  The test will depend on the statutory provisions forming the basis for the challenge to the validity of the treatment order.

The Act creates numerous highly specific statutory pathways leading to the making of a treatment order.  For example, an inpatient treatment order may be made under s 55(1)(a), s56(1)(a)(i), s61(1)(a), s 72(1)(a), s120(2)(a), s123(1)(a) or s131(2)(a), depending on the pathway taken by the patient to the psychiatric review.  The valid exercise of a statutory power generally requires that all statutory preconditions and requirements be met.  The grounds for invalidity may arise from a failure at any stage of this process.

Accordingly, Tribunal members need to be familiar with all aspects of the Act pertaining to the referral, assessment, and examination of involuntary patients.  The specific statutory test applied will depend on the basis for the challenge to the validity of the treatment order.

4.8 Onus of proof

It is generally accepted that there is no onus of proof in administrative review proceedings (see Polizzi v Commissioner of Police [No 2] [2017] WASC 166 [67]) and it is generally undesirable to refer even to a ‘practical onus’ (Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83 [115]).  This is because it ‘tends to distract from the critical terms of the legislation which define and delimit the Tribunal’s powers and the circumstances in which those powers may be exercised.’

Proceedings in Part 21 Division 4 are not review proceedings within the meaning of section 455 of the Act.  Nevertheless, the powers conferred on the Tribunal are administrative and not judicial (see, by analogy, GS -v- MS [2019] WASC 255) and the nature of the inquiry conducted by the decision-maker depends on the statutory context.  Accordingly, the same caution about framing the weight of the evidence in the context of onus of proof would seem applicable to matters determined under Division 4.  Members should look to the statutory language of the power pursuant to which the decision under review was made to determine the conditions for the valid exercise of the Tribunal’s power.

The Tribunal has powers generally considered to permit ‘inquiry’ into facts beyond those provided by the parties.  These include section 439 (the power to determine the Tribunal’s practices and procedures), section 460 (the power to inform itself of a matter relevant to a proceeding in any manner the Tribunal considers appropriate and the power to direct a witness to answer a question or produce a document) and 462 (the power to issue a summons to give evidence or produce documents).  Nevertheless, although such powers permit the Tribunal to require more information than is provided by the parties, there are no specific investigatory obligations vested in the Tribunal.  In the absence of a statutory duty of inquiry, the Tribunal is under no positive duty to inquire (see COAT Manual at 5.2.1).

In the context of determining the validity of a treatment order on its own initiative, this would suggest that the Tribunal has an obligation to consider the validity of a treatment order at a prima facie level, but in the absence of an issue being raised, there is no obligation to inquire into other potential avenues of invalidity of a treatment order.  For example, when reviewing an involuntary treatment order under section 386 and 387, Tribunal members always would be expected to consider whether the order was prima facie valid and raise on its own initiative any obvious prima facie defects (such as a continuation order having been made after the original order expired).  Other validity issues would be expected to be considered upon the identification of specific concerns.

In the context of determining an application challenging the validity of a treatment order, the Tribunal would expect the applicant to identify the nature of the defect alleged.  This is not an onus of proof, but rather a starting point for the Tribunal’s review.

4.9 Tribunal powers

4.9.1     Decision-making options

Section 398(1) empowers the Tribunal to declare that:

  • a treatment order is or was valid; or
  • a treatment order is or was invalid.

Alternatively, in some instances, instead of declaring a treatment order invalid, section 398(3) empowers the Tribunal to declare the treatment order to be valid and to make an order varying the terms of the treatment order in the manner the Tribunal considers most likely to give effect to the intention of the psychiatrist who made the treatment order.

The Tribunal may not use this power under section 398(3) if it is satisfied that the order is invalid on a ground referred to in section 402.  In other words, the Tribunal is not empowered to ‘validate’ an otherwise invalid treatment order in circumstances where a failure to comply with certain requirements of the Act substantially prejudiced the rights or interests of the involuntary patient.

4.9.2     Grounds for invalidating treatment orders

The Act creates numerous highly specific statutory pathways leading to the making of a treatment order.  For example, an inpatient treatment order may be made under s 55(1)(a), s56(1)(a)(i), s61(1)(a), s 72(1)(a), s120(2)(a), s123(1)(a) or s131(2)(a), depending on the pathway taken by the patient to the psychiatric review.  The valid exercise of a statutory power generally requires that all statutory preconditions and requirements be met.  The grounds for invalidity may arise from a failure at any stage of this process.

The grounds on which a treatment order can be declared invalid under section 398(1) are not limited (s 402). However, by section 402 Parliament has attempted to distinguish between important statutory requirements impacting upon substantial patient rights and mere formalities which do not.

Section 402 provides that where the treatment order is alleged to be invalid because of a failure to comply with the requirements of the Act in relation to:

  • the making of the treatment order; or
  • the conduct of any assessment or examination or the making of any referral or order that led to the making of the treatment order;

the Tribunal may not declare the order invalid unless it is also satisfied that the rights or interests of the involuntary patient have been or were ‘substantially prejudiced’ (s 402).

In practice, most challenges to the validity of an order would relate to the making of the treatment order, the conduct of any assessment or examination, or the making of any referral or order that led to the making of the treatment order.

Where the invalidity is grounded in compliance with these statutory requirements, section 402 imposes a two-tier test.  The Tribunal must first be satisfied of the failure to comply with the requirements of the Act in relation to the making of the treatment order, or in the conduct of any assessment or examination, or the making of any referral or order that led to the making of a treatment order. Secondly, because of that failure, either alone or in combination with one or more failures, the Tribunal must be satisfied that the rights of the patient have been, or were substantially prejudiced.

The Act does not define ‘substantially prejudiced’ and there is no relevant case law on its interpretation.  The plain meaning of prejudice in this context would seem to be injure or damage.  The plain meaning of substantial in this context may mean anything from ‘not imaginary or illusory’ to ‘important, essential’.  Members will need to consider, in all of the facts and circumstances before them, whether the rights of the patient have been, or were, substantially prejudiced by the failure.

4.9.3     Consequences of declaring an order invalid
4.9.3.1 Inpatient treatment orders (Form 6A or B)

If the Tribunal declares that an inpatient treatment order is invalid, the order ceases to be in force (s 399(1)(a)).

An inpatient treatment order means an order in force under the Act under which a person can be admitted by a hospital, and detained there, to enable the person to be provided with treatment without informed consent being given to the provision of the treatment (s 22(1)).  Inpatient treatment orders are made under section 55(1)(a), 56(1)(a)(i), 72(1)(a), 120(2)(a), 123((1)(a) or 131(2)(a) (s 22(2)).

A continuation of an inpatient treatment order is not an ‘inpatient treatment order’ within the meaning of section 22, 397 or 399(1).  This is because  a continuation of an inpatient treatment order is made under section 89(2)(a).  Accordingly, section 399(1) does not apply to the continuation order of an inpatient treatment order made under section 89(2)(a).

If the Tribunal reasonably suspects that a person who was subject to an inpatient treatment order (but not an order continuing an inpatient treatment order) is in need of an involuntary treatment order, section 399 (1)(b) empowers the Tribunal to may make an order for the assessment of the person by a medical practitioner or authorised mental health practitioner at the hospital where the person was detained under the inpatient treatment order and authorising the person’s detention there for up to the period specified in the order to enable the assessment to be conducted.

The Mental Health Act applies to the Tribunal’s order for assessment as if it had been made under section 34(1) of the Act.  This means that:

  • the order for assessment may be revoked by the Tribunal under section 35;
  • following assessment by a medical practitioner or a mental health practitioner under section 36(2) the patient may be referred for an examination by a psychiatrist under section 36;
  • that the assessment by a medical practitioner or a mental health practitioner under section 36(2) must be conducted in accordance with sections 47 – 50 of the Act;
  • that the person can be detained for up to 24 hours under section 53; and
  • that the person can be detained under section 83(2).
4.9.3.2 Continuation orders under section 89(2)(a)  (Form 6C)

Because the definition of ‘inpatient treatment order’ in section 22(2) does not include continuation orders made under section 89(2)(a), section 399(1) does not apply to apply to the continuation order of an inpatient treatment order made under section 89(2)(a).  Rather, section 399(3) applies instead.  Accordingly, there is no option for the Tribunal to make an order for assessment under section 399(1) of a patient if the patient on a Form 6C.

If the Tribunal declares that a continuation order of an inpatient treatment order made under section 89(2)(a) is invalid, the continuation order ceases to be in force and the order expires on the date it would have expired had it not been continued (s399(3)).

4.9.3.3 Community treatment orders

If the Tribunal declares that a community treatment order is invalid, the community treatment order ceases to be in force (s399(2)).

If the Tribunal declares that a continuation order of a community treatment order made under section 121(1) is invalid, the continuation order is deemed to have ceased to be in force and the order expires on the date it would have expired had it not been continued (s399(3)).

4.9.3.4 Variation orders

If the Tribunal declares that an order varying a community treatment order under section 122(1) is invalid, it ceases to be in force and the community treatment order made prior to the variation continues to be in force (s399(4)).

4.10 Determinations and orders available

The Tribunal’s standard orders have been carefully prepared to incorporate the range of statutory options available for most situations you will encounter in a hearing.  The standard orders are always open to revision, and suggestions should be sent to the President for consideration and discussion with legal members.

The standard orders available for an application under section 398 are set out here.

The standard orders available for matters heard on the Tribunal’s own initiative under section 398 are set out here.

4.11 Adjournments

The Act contains no express statutory power to adjourn.  The only express reference to adjournments is in section 457 of the Act, which provides, in its entirety, as follows:

The Tribunal may conduct a hearing in the absence of a party if satisfied that —

  • the party has been given notice of the hearing; and

  • it is in the best interests of the person concerned in the proceeding for the hearing not to be adjourned.

Adjournments are distressing and inconvenient for patients, and a significant waste of public resources to hospitals, treating teams, MHAS, MHLC, and the Tribunal.  Nevertheless, they are required for procedural fairness from time to time.  For these reasons, adjournments should be used only as a last resort.

The Tribunal’s standard orders have been carefully prepared to incorporate the range of statutory options available for most situations you will encounter in a hearing.  The standard orders are always open to revision, and suggestions should be sent to the President for consideration and discussion with legal members.

Page reviewed 18 November 2020