Chapter 7: Applications to approve psychosurgery

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7.1 Relevant Legislation

Mental Health Act 2014 (WA) (the Act) s 13, 14, 15, 16, 17, 18, 19, 20, 205, 206, 207, 208, 209, 416, 417, 418, 419, 420, and 421.

7.2 Key Definitions

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

Carer means a carer under the Carer’s Recognition Act 2004 (WA) s 5 (ss 4 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 s 5(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.

Chief Psychiatrist means the Chief Psychiatrist appointed under section 508(1). The current Chief Psychiatrist of Western Australia is Dr Nathan Gibson.

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

Child and adolescent psychiatrist means a psychiatrist who has qualifications and clinical training in the treatment of mental illness in children

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 (ss 4 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.

Custody order means an order under the MIA Act that an accused be kept in custody in accordance with Part 5 of the MIA Act (see s 3 of the MIA Act).

Involuntary patient is a person who is under an involuntary treatment order.

Nominated person, of a person, means the person nominated under section 273(1) to be the person’s nominated person.

Parent or Guardian, of a child, means the person who has parental responsibility (as defined in the Family Court Act 1997 (WA) section 68) for the child.

Patient’s psychiatrist means (a) if the patient is a voluntary patient – the treating psychiatrist; or (b) if the patient is an involuntary patient who is under an inpatient treatment order – the treating psychiatrist; or (c) if the patient is an involuntary patient who is under a community treatment order – the supervising psychiatrist; or (d) if the patient is a mentally impaired accused required under the MIA Act to be detained at an authorised hospital – the treating psychiatrist.

Psychosurgery means treatment involving: (a) the use of a surgical technique or procedure or intracerebral electrodes to create in a person’s brain a lesion intended (whether alone or in combination with one or more other lesions created at the same or other times) to alter permanently — (i) the person’s thoughts or emotions; or (ii) the person’s behaviour other than behaviour secondary to a paroxysmal cerebral dysrhythmia; OR (b) the use of intracerebral electrodes to stimulate a person’s brain without creating a lesion with the intention that the stimulation (whether alone or in combination with other such stimulation at the same or other times) will influence or alter temporarily — (i) the person’s thoughts or emotions; or (ii) the person’s behaviour other than behaviour secondary to a paroxysmal cerebral dysrhythmia (s 205).

Supervising psychiatrist in relation to a community treatment order, means the psychiatrist who is the supervising psychiatrist under the order (s 113).

Treating psychiatrist in relation to a patient, means the psychiatrist who is in charge of the patient’s treatment.

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.

7.3 Application requirements

7.3.1     Who can apply and how

Only the patient’s psychiatrist may apply for approval to perform psychosurgery (s 417(1)). This means either the psychiatrist in charge of the patient’s treatment (the treating psychiatrist) or the supervising psychiatrist named in a patient’s community treatment order (the supervising psychiatrist).

The application must be made in writing and must set out the reasons why the patient’s psychiatrist recommends psychosurgery (s 417(2)(a)) and provide a treatment plan (s 417(2)(b)).

The Tribunal requires that psychosurgery applications be submitted on the Tribunal’s Application for Approval to Perform to Perform Psychosurgery s 417(1).

Members should confirm that the treating psychiatrist or the supervising psychiatrist is the applicant and has signed the application form.  The Tribunal frequently receives applications written and signed by Registrars.  This is not permitted by the Act.

7.3.2     The reasons why the patient’s psychiatrist recommends psychosurgery

The application must set out the reasons why the patient’s psychiatrist recommends psychosurgery (s 417(2)(a)).

7.3.3     The psychosurgery treatment plan 

The application must also include a psychosurgery treatment plan (s 417(2)(b)). The treatment plan must specify:

  • a detailed description of the psychosurgery proposed to be performed; and
  • the name, qualifications and experience of the neurosurgeon who it is proposed will perform the psychosurgery; and
  • the name and address of the place where it is proposed to perform the psychosurgery.
7.3.4     Timing

The Act does not provide a specific time period in which psychosurgery applications must be heard.  This means that psychosurgery applications must be brought before the Tribunal as soon as practicable (see s 484(c)) and with all convenient speed (Interpretation Act 1984 (WA) s 63).

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].

7.4 Nature of proceedings

Proceedings under Part 21 Division 7 are first-instance applications. This means that the Tribunal is the primary decision maker in its original jurisdiction.  Applications for psychosurgery have not been the subject of an earlier decision.

As primary decision makers, the Tribunal has broad discretion as to the weight to be given to the each of the various factors which must be considered when applying the statutory test (see 7.6 below). This discretion is partly structured.  The Act provides for factors which must be considered but also allows the Tribunal to take into account any other things that it considers relevant to making the decision (see section 420(e)).

7.5 Parties

Section 418 provides that for proceedings in relation to an application for psychosurgery, the parties to the proceeding are:

  • the patient; and
  • the applicant; and
  • any other person who, in the Tribunal’s opinion, has a sufficient interest in the matter.

For a person to be joined as a party to the proceedings pursuant to section 411(c) there must be a specific order of the Tribunal to this effect.

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.

7.6 Statutory test

The Tribunal cannot approve psychosurgery unless a valid application is made under Part 21 Division 7, and a specially constituted Tribunal is satisfied of the factors set out in section 419 of the Act.

7.6.1 A specially constituted Tribunal

Section 384 of the Act requires applications for psychosurgery to be determined by a Tribunal constituted by 5 members, rather than 3.  The member must be as follows:

  • a member who is a lawyer (a legal member);
  • a neurosurgeon who is appointed as a member after consultation by the Minister with the Health Minister held after consultation by the Health Minister with the Royal Australasian College of Surgeons;
  • if the patient is an adult — 2 members who are psychiatrists;
  • if the patient is a child — a member who is a child and adolescent psychiatrist; and (ii) another member who is a psychiatrist who can (but need not) be a child and adolescent psychiatrist; and
  • a community member.
7.6.2 A qualifying patient who has given informed consent

Section 419(a) provides that the Tribunal cannot approve psychosurgery unless the patient gives informed consent to the psychosurgery being performed on himself or herself as required by section 208(2)(a).

7.6.2.1 Who may consent to psychosurgery

Part 21 Division 7 relates solely to the Tribunal’s approval of psychosurgery being performed on adults or children 16 years or older (s 208(1)).  Section 208(2)(a) provides that a neurosurgeon can only perform psychosurgery on a patient who gives informed consent to the psychosurgery being performed on himself or herself.

An adult is presumed to have the capacity to make a decision about a matter relating to himself or herself unless the adult is shown not to have that capacity (s 13(1)).  An adult patient can give informed consent in an advance health directive (see the GAA Act section 110ZJ(2)).  However, the reference in section 208(2)(a) and section 419(a) to the patient consenting to the psychosurgery on himself or herself suggests that section 13(2) and section 17(b) of the Act (which permit a person who is authorised by law to make treatment decision on a patient to give informed consent on the patient’s behalf) does not apply to psychosurgery.

A child can only give informed consent if the child has the capacity to do so.  Section 14(1) provides that a child is presumed not to have the capacity to make a decision about a matter relating to himself or herself unless the child is shown to have that capacity. The reference in section 208(2)(a) and section 419(a) to the patient consenting to the psychosurgery on himself or herself suggests that section 14(2) and section 17(b) of the Act (which permit a person who is authorised by law to make treatment decision on a patient to give informed consent on the patient’s behalf) does not apply to psychosurgery.

For the purpose of determining whether the child has the capacity to provide informed consent to psychosurgery, the Tribunal must be satisfied that the child has the capacity to:

(a) understand the things that are required under section 19 to be communicated to the child about the treatment; and
(b) understand the matters involved in making the treatment decision; and
(c) understand the effect of the treatment decision; and
(d) weigh up the factors referred to in paragraphs (a), (b) and (c) for the purpose of making the treatment decision; and
(e) communicate the treatment decision in some way. (Act s 18).

7.6.2.2 Requirements of informed consent

The requirements of informed consent are identified in Part 5 Division 2 of the Act.

Section 19 requires that before a person is asked to make a treatment decision about the provision of treatment to a patient, the person must be provided with a clear explanation of the treatment:

  • containing sufficient information to enable the person to make a balanced judgment about the treatment; and
  • identifying and explaining any alternative treatment about which there is insufficient knowledge to justify it being recommended or to enable its effect to be predicted reliably; and
  • warning the person of any risks inherent in the treatment. (Act s 19(1)).

The extent of the information required to be provided to the person is limited to information that a reasonable person in the person’s position would be likely to consider significant to the treatment decision unless the person providing the information knows, or could reasonably have been expected to know, that the person is likely to consider other information to be significant to the treatment decision.  (Act s 19(2)).

Section 20 provides that the person must be given:

  • sufficient time to consider the matters involved in the treatment decision;
  • a reasonable opportunity to discuss those matters with the doctor; and
  • a reasonable opportunity to obtain other advice or assistance.
7.6.3 Merit

Section 419(b) provides that the Tribunal cannot approve psychosurgery unless it is satisfied that performing the psychosurgery has clinical merit and is appropriate in the circumstances.  The Act provides no statutory guidance on these matters.

7.6.4 All other alternatives have been trialled

Section 419(c) provides that the Tribunal cannot approve psychosurgery unless it is satisfied that all alternatives to performing psychosurgery that are reasonably available and likely to be of a sufficient and lasting benefit to the patient have been appropriately trialled with the patient but have not resulted in a sufficient and lasting benefit to the patient.  The Act provides no statutory guidance on these matters.

7.6.5 Suitably qualified neurosurgeon

Section 419(d) provides that the Tribunal cannot approve psychosurgery unless it is satisfied that the neurosurgeon who it is proposed will perform the psychosurgery is suitably qualified and experienced.  The Act provides no statutory guidance on these matters.

7.6.6 Suitable place

Section 419(e) provides that the Tribunal cannot approve psychosurgery unless it is satisfied that the place where it is proposed to perform the psychosurgery is a suitable place.  The Act provides no statutory guidance on these matters.

7.6.7 Regard to all of the section 420 factors

In deciding whether or not to approve psychosurgery being performed on a patient, the Tribunal must also have regard to the following factors:

(a) the views of any carer, close family member or other personal support person of the patient;

(b) the consequences for the treatment and care of the patient of not performing the psychosurgery;

(c) the nature and degree of any significant risk of performing the psychosurgery;

(d) whether the psychosurgery is likely to promote and maintain the health and wellbeing of the patient;

(e) any other things that the Tribunal considers relevant to making the decision.

7.7 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 7 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 7.  Members should look to the statutory language of its powers to determine the conditions for the valid exercise of the Tribunal’s power.

7.8 Tribunal powers

Section 421 provides that when deciding an application, the Tribunal may decide the application by —

  • approving the psychosurgery being performed in accordance with the application; or
  • refusing to approve the psychosurgery being performed.

7.9 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 a completed application under section 417 are set out here.

7.10 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 04 December 2020