Chapter 5: Applications to review admission of long-term voluntary inpatients

Mental Health Act 2014 (WA) (the Act) s 404, 405, 406,407, 408, 455.

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.

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.

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.

Long-term voluntary inpatient is a person who is a voluntary inpatient at an authorised hospital who has been a voluntary inpatient for a continuous period, if an adult, for more than 6 months, and if a child, for more than 3 months.

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

Person specified in subsection (2) means either the involuntary patient; a carer, close family member or other personal support person of the involuntary patient; a mental health advocate; or any other person who, in the Tribunal’s opinion, has a sufficient interest in the matter (s 390(2)).

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; (s4 and 7(2)(b)(i), (ii), (iii), (iv) or (v)).

Prescribed period after the day on which the Tribunal makes a decision means

• if, on the day on which the decision is made, the involuntary patient is an adult — the period of 28 days; or
• if, on the day on which the decision is made, the involuntary patient was a child — the period of 7 days.

Transfer order includes an order under section 66(1) (being a transfer from a general hospital to an authorised hospital using a Form 4C)) or 91(2) (being a transfer between authorised hospitals using a Form 4C)) or 555(1) (being an interstate transfer using a Form 4E).

Transfer of responsibility includes an order using a Form 5C transferring responsibility for the community treatment order under s 135(1)(a) (being a change of supervising psychiatrist) or s 137(a) (being a change of treating practitioner).

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.

The Tribunal’s obligation to review a long-term voluntary patient under section 405 is triggered by its receipt of an application.  The application should be in writing and submitted on the Tribunal’s application form for this purpose.  Application forms are available on the Tribunal’s website here.  An application may be made at any time.

The application may be made by a person specified in section 405(2):

• the long-term voluntary patient;
• a carer, close family member or other personal support person of the long-term voluntary patient;
• a mental health advocate; or
• 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 Tribunal must conduct the review as soon 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].

Proceedings under Part 21 Division 5 are review proceedings as defined in section 455 of the Act.  The reviewable decision is the decision to admit the long-term voluntary patient (s 455(1)).

A review proceeding is a hearing de novo and is not confined to material that was before the decision-maker but may involve the consideration of new material whether or not it existed when the reviewable decision was made (s 455(2)).

The purpose of a review proceeding is to produce the correct and preferable decision at the time of the Tribunal’s decision on the review proceeding (s 455(3)).

Section 406 provides that for proceedings under Part 21 Division 5 (Long-term voluntary inpatients) the parties to the proceeding are:

• the long-term voluntary inpatient; and
• if the applicant is not the long-term voluntary inpatient – the applicant; and
• any other person who, in the opinion of the Tribunal, has a sufficient interest in the matter.

For a person to be joined as a party to the proceedings pursuant to section 406(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.

Unlike a review of an involuntary treatment order under section 386 or 387, the Act does not require the Tribunal to consider the section 25 criteria in determining whether there is still a need for a voluntary inpatient’s admission.

The Act provides no statutory framework for decision-making other than to require the Tribunal to have regard to the following:

• If the inpatient is a child, and the Tribunal is not constituted with a child and adolescent psychiatrist – the views of a medical practitioner or mental health practitioner (see 407(2)).
• The inpatient’s psychiatric condition;
• The inpatient’s medical and psychiatric history;
• The inpatient’s wishes, to the extent that it is practicable to ascertain those wishes;
• The views of any carer, close family member or other personal support person of the inpatient;
• Any other things that the Tribunal considers relevant to making the decision.

The purpose of a review proceeding is to produce the correct and preferable decision at the time of the Tribunal’s decision on the review proceeding (s 455(3)).

For the purpose of the Tribunal ascertaining the patient’s wishes under section 407(1)(d), Part 2 Division 4 (Wishes of a person) applies.  This includes (as specified in section 8 of the Act):

• any treatment decision in an advance health directive made by the person that is relevant to the matter;
• any term of an enduring power of guardianship made by the person that is relevant to the matter;
• anything that the person says or does that is relevant to the matter if it is said or done at a time that is reasonably contemporaneous with when those wishes are required to be ascertained;
• any other things that the Tribunal considers relevant to ascertaining those wishes.

For the purpose of the Tribunal ascertaining the views of a medical practitioner or mental health practitioner with qualification, training or experience relevant to children with a mental illness under section 407(2), the Chief Psychiatrist has authorised any psychiatrist who is a Fellow of the Royal Australian and New Zealand College of Psychiatrists.

An application for review brought under Division 5 is a review proceeding within the meaning of section 455 of the Act.

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.’

The Tribunal’s powers upon completion of a review are limited to the following recommendations:

• a recommendation that the treating psychiatrist consider whether or not there is still a need for the admission;
• a recommendation that a treatment, support and discharge plan for the inpatient be prepared and reviewed regularly;
• a recommendation that the inpatient be discharged.

The Tribunal’s powers are recommendatory only and the Tribunal may not direct any action at the completion of a review, or make any other binding orders.

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 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.