Chapter 11: Applications to review any other decision affecting rights

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11.1 Relevant Legislation

Mental Health Act 2014 (WA) (the Act) s 434, 435, 436 (also s 248, 249, 250, 439, 455 and 461).

11.2 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.

Decision-maker, for the purposes of section 455 means, in relation to a review proceeding:

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

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.

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 any person whose right is affected by a decision made under the Act; a carer, close family member or other personal support person of the person whose right is affected; a mental health advocate; or any other person who, in the Tribunal’s opinion, has a sufficient interest in the matter (s 434(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)).

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.

11.3 Application requirements

Section 434 provides that certain specified categories of person may apply to the Tribunal for a review of a decision made under the Act affecting a person’s rights under the Act.

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.

This provision is broad, and many different types of decisions are potentially reviewable under this section.  Accordingly, a threshold issue in such applications will be whether the decision in question is reviewable under section 434.  The specifics of the decision, including the decision-maker, the date of the decision, and why it is reviewable under section 434 should be clearly articulated in the application.

11.3.1   Who can apply and how

The application may be made by one of the following:

  • the person whose right is affected;
  • a carer, close family member or other personal support person of the person whose right is affected;
  • a mental health advocate;
  • any other person who, in the opinion of the Tribunal, 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.     

11.3.2   Timing

There are no specific timing provisions in the Act about this type of application.

11.4 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.

The ‘reviewable decision’ in relation to a review proceeding in each of these types of matters is:

  • (in Division 3) the decision to make the involuntary treatment order; or
  • (in Division 5) the decision to admit the long-term voluntary patient; or
  • (in Division 9) the decision under section 262 to make, confirm or amend the order prohibiting, or limiting the extent of, the exercise of the right.

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 14 of the State Administrative Tribunal Act 2004 (SAT Act) provides that in proceedings before the State Administrative Tribunal (SAT), a matter in which the SAT has jurisdiction comes within either its original jurisdiction or its review jurisdiction.  Section 15 of the SAT Act provides that if a matter that an enabling Act gives the SAT jurisdiction to deal with does not involve a review of a decision, the matter comes within the Tribunal’s original jurisdiction.  The SAT Act defines ‘original jurisdiction’ as ‘jurisdiction other than its review jurisdiction’.

Unfortunately, the Act does not provide similar clarity for the Tribunal.  Some decision-making vested in the Tribunal clearly involves primary decision-making.  This includes:

  • declaratory relief concerning the validity of a treatment order under Division 4;
  • a decision about whether to approve electroconvulsive therapy under Division 6;
  • a decision about whether to approve psychosurgery under Division 7;
  • a decision to issue a compliance notice under Division 8; and
  • a decision about a nominated person or declaratory relief concerning the validity of a nomination under Division 10.

In contrast, decisions under Part 21 Division 11 clearly contemplate the review of a primary decision-maker under the Act.  Nevertheless, decisions under Part 21 Division 11 are not included in review proceedings as defined in section 455 of the Act.  It is not clear whether this omission was inadvertent or intentional.  This raises question about the nature of the review for applications under section 434.

Section 436 of the Act provides that in conducting a review under Division 11, the Tribunal may make any orders, and give any directions, the Tribunal considers appropriate.  These powers are broad and are framed in similar terms to the powers provided in review proceedings under Division 3 (see section 395), without the subsequent limitations in section 395(3).  In Forrest & Forrest Pty Ltd v Minister for Mines and Petroleum [2018] WASCA 32 [61], the Court of Appeal noted (in the context of the SAT Act) that:

where the statutory provision indicates that the appellate body is required to “make such order as it thinks fit”, this is an indication that the appellate body’s powers are not constrained by the need to identify error on the part of the decision-maker, but, rather, it is obliged to give its own decision on the evidence before it. (emphasis added)

This would support the view that for Division 11, Parliament may have contemplated a merits review (where the Tribunal ‘stands in the shoes’ of the original decision-maker to consider the matter afresh) as opposed to a review considering only the lawfulness of the primary decision.  If so, it is unclear why Division 11 was not included within the definitions of review proceeding and reviewable decision.

This issue is important.  If Parliament inadvertently excluded Division 11 from the provisions of section 455, this matter should be addressed during the statutory review of the Act scheduled for late 2020 and continuing during 2021.  Accordingly, the President has referred this matter to SSO for advice.

11.5    Parties

Section 435 provides that the parties to the proceeding are:

  • the person whose rights it is alleged are affected; and
  • if the applicant is not the person whose rights it is alleged are affected — 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 435(c) there must be a specific order of the Tribunal to this effect.

11.6 Statutory test

Division 11 provides no statutory framework for decision-making.  There are no statutorily mandated relevant considerations.  The relevant considerations will depend on the nature of the decision under review.

11.7 Onus of proof

It is generally accepted that there is no onus of proof in administrative review provisions (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.’

An application for review brought under Division 11 is not a review proceeding within the meaning of section 455 of the Act.  It is, however, a review of a decision made by a primary decision-maker under the Act.  The same caution about framing the weight of the evidence in the context of onus of proof would seem applicable.  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.

11.8 Tribunal powers

Section 436 of the Act provides that in conducting a review under Division 11, the Tribunal may make any orders, and give any directions, the Tribunal considers appropriate.  These powers are broad and are framed in similar terms to the powers provided in review proceedings under Division 3 (see section 395), without the subsequent limitations in section 395(3).

However, as noted in Part 3 Chapter 1 of this Manual, Members should beware the apparent breadth of the Tribunal’s powers.  As noted in 1.2.2 of the COAT Manual:

Whenever Parliament gives a power to a tribunal, it sets limits to the power. The limits may be express (i.e. in writing) or implied (as a result of, or flowing from, the written power). This may relate to the procedures for exercising power or to the type of orders the tribunal can make.

Implied limitations of the Tribunal’s powers under section 436 likely include:

  • that the direction or order arises from the decision the Tribunal is empowered to make and thus should be related to that decision.
  • that the Tribunal considers the direction or order ‘appropriate’. Appropriate means suitable and proper in the circumstances.  This language would seem to imply the need to carefully consider the context and objects of the Act in determining what is appropriate.
  • that the order or direction does not involve an unreasonable exercise of a power considering the subject matter of the jurisdiction and the context of the Act.

Where the legal member makes orders, he or she should provide clear reasons for the orders (including the statutory power relied upon).  This will preserve the Member’s reasoning in the event of a request for review.

11.9    Determinations and orders available

Because of the breadth of potential applications of under section 434, the Tribunal does not provide specific standard orders.  Members will need to carefully draft their own orders in response to the matter before them.

11.10 Adjournments

11.10.1 Statutory power to adjourn?

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.
11.10.2 The Tribunal’s position on adjournments

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.

Approximately 10% of hearings are adjourned by the Tribunal on the day.  About 60% of these adjournments involve the absence of adequate medical evidence or non-attendance of a medical officer with adequate knowledge of the patient.  The President continues to address such issues with health services.  Use of the adjournment standard orders helps to monitor these issues.

11.11  Using s 434 to challenge a decision to refuse access to documents

Section 434 is frequently used by patients to review a decision by the treating psychiatrist preventing the patient from accessing a medical report or other document at a hearing.  Whilst section 434 is not a perfect fit for this purpose, it appears to be the best available option.  This section discusses why the Tribunal considers an application under section 434 may be used for this purpose, and how it manages this process.

11.11.1 Statutory context

The Act contemplates that in most situations, patients are entitled to inspect and be given a copy of their medical records (s248).  This is in addition to any rights they may have to access these documents through the Freedom of Information Act 1992 or other legislation (s248(2)).

The exceptions to this entitlement are identified section 249(1)(a) or (b) and section 249(3).

Section 249(1) provides that a person is not entitled to have access under section 248(1) to a relevant document relating to the person —

(a) if a psychiatrist reasonably believes that disclosure of the information in the document to the person —

(i) poses a significant risk to the health or safety of the person or to the safety of another person; or

(ii) poses a significant risk of serious harm to the person or to another person; or

(b) if disclosure of the information in the document to the person would reveal —

(i) personal information about an individual who is not the person; or

(ii) information of a confidential nature that was obtained in confidence.

Section 249(3) provides further that a person is not entitled to have access under section 248(1) to a relevant document relating to the person if the person —

(a) is or was a mentally impaired accused required under the MIA Act to be detained at an authorised hospital; and

(b) the relevant document came into existence under, or for the purposes of, the Prisons Act 1981.

The first key element is the creation of the right of access, and the carving out from that right of the exceptions. The entitlement to inspect and be given a copy exists by virtue of section 248(1) and is independent of the need for a request for access.  It is enlivened by a relevant document relating to the person being in the possession or control of a person in charge of the mental health service or a staff member of the mental health service.  Similarly, the entitlement to inspect and be given a copy is extinguished by the existence of the factors in section 249(1)(a) or (b) and (3) (ie upon the psychiatrist forming the reasonable belief, etc), independent of the existence of the completed Form 12B – Refusal of Request to Access Records.  This distinction is important and will be discussed further below.

The second key element is the action required to respond to a request for access.  When a request is made, section 248(3) imposes an obligation on the person in charge of a mental health service:

  • to ensure that such request is dealt with as soon as practicable; and
  • if refused, that as soon as practicable after the refusal, a record of the refusal (a Form 12B) is filed, and a copy provided to the patient.

In other words, although the entitlement to access (or not, if it falls within the exception) exists by statute, the need for a  Form 12B is enlivened by a request for access that is refused.

11.11.2 The Tribunal’s powers arising from this statutory context

The Tribunal’s powers in respect of sections 248 and 249 arise in both Division 8 and Division 11 of the Act.

11.11.2.1 The Tribunal’s powers arising from Division 8

If the patient is entitled to a document under section 248 and a person in charge of a mental health service does not ensure that a request for access is dealt with as soon as practicable, the Tribunal is empowered by section 423 of the Act to issue a compliance notice.

However, the prescribed requirement to ‘give a document’ within the meaning of section 422 would appear to extend only to a document to which the patient is entitled under section 248.  If the document falls within the exception carved out by section 249(1)(a) or (b) and (3), there is no entitlement, and consequently no basis to issue a compliance notice under section 423.

Accordingly, although Division 8 Compliance Notices would apply to ensure that a request for access is dealt with as soon as practicable, it does not appear to create a right to challenge the refusal of access under section 249.

11.11.2.2 The Tribunal’s powers arising from Division 11

Section 439(2) of the Act provides that the Tribunal is bound by the rules of natural justice.  The hearing process must be fair.  Generally, this means that material relied upon by the Tribunal in making its decision should be available to the patient and the patient should have the opportunity to comment on it.  It may be unfair for the Tribunal to rely on a medical report or other material that the patient has not seen.

If the treating team informs the Tribunal that the patient is not entitled to have access to the medical report because of section 249(1)(a) or (b), then it becomes ‘restricted information’ within the meaning of section 461 of the Act.  The Tribunal is required to exclude the patient during the tendering of evidence and cross examination about the restricted information.

The Act provides two safeguards for patients to protect their right to information and natural justice.  Firstly, section 250 provides that where the patient has been refused access for a reason referred to in section 249(1)(a), the patient can nominate both a legal practitioner or a medical practitioner (or both) to inspect the document.  Where the patient nominates a legal practitioner, the patient may be able to receive the benefit of the legal practitioner’s submissions on the medical report to the Tribunal, even though the patient may not be present in the hearing.

Secondly, section 434 is broad enough to permit a patient to challenge a decision refusing access to documents.  Section 434 refers to the ‘review of a decision made under this Act affecting a person’s rights under this Act’.  It would appear self-evident that the refusal of access to documents under section 249 is a decision affecting the patient’s rights under the Act.   The only question is whether it is a matter which ‘cannot be heard and determined by the Tribunal under another Division of this Part’.

As noted above, although Division 8 applies to ensure that a request for access is dealt with as soon as practicable, it does not appear to create a right to challenge refusal of access under section 249.

It is evident from the legislative history that Parliament intended such decisions to be reviewable by the Tribunal.  In the Second Reading speech on 23 October 2013, Dr Kim Hames MLA noted:

Patients have a right to access their medical record, which is in addition to their provisions in freedom of information legislation. However, access may be refused for confidentiality reasons or when access would pose a risk to the patient or another person. The patient is able to nominate a lawyer, who will have unfettered access. The decision to deny access can be reviewed by the tribunal. (emphasis added)

The President’s view has been that the right of review offered by section 434 is the preferred mechanism for reviewing such decisions.  This is because it is unlikely that Division 8 could be interpreted to ‘read in’ a right to challenge the substance of a decision to restrict access to documents.  Section 434 is the more obvious avenue to ensure the patient has access to the valuable safeguards intended by Parliament in respect of a patient’s right to access documents.  These safeguards are essential, particularly in the context of a denial of access to documents relied upon by the Tribunal in a decision regarding an involuntary treatment order.  The processes set out below reflect this view.  Nevertheless, it is always the responsibility of the Tribunal determining a proceeding to be satisfied that an applicant has standing to make an application.

11.11.3 The Tribunal’s processes for addressing these issues

To assist Tribunal members in understanding the context in which section 434 applications challenging access to records arise, Registry processes are detailed below.

11.11.3.1 The Registry staff request a Form 12B

Frequently, treating teams contact the Tribunal to enquire whether the patient can be denied access to a medical report prepared for a Tribunal hearing.  In most circumstance, at this stage the patient’s psychiatrist has formed the view that the exceptions in section 249 apply, but the patient has not yet requested a copy of the document (and is probably unaware of its existence) so no Form 12B – Refusal of Request to Access Records exists.

This is an awkward point for the Registry staff to address this issue.  Treating teams often argue that they do not need to prepare a Form 12B  because the patient has not requested access.  Technically, this is correct.  However, if the Tribunal is to treat the report as restricted information within the meaning of section 461, it requires some evidence from the psychiatrist that the report falls within the section 249 exception.  Accordingly, the Tribunal requests the psychiatrist to file and serve a Form 12B as formal notification of the decision to refuse access to the patient of the report at the hearing.  The Tribunal requests a Form 12B for this purpose (rather than just an email) because it is the statutory form for recording such decisions, and because the Form 12B notifies the patient of the issue and triggers the process under section 250.

A link to the Tribunal’s website which provides information on this issue to treating teams is here.

11.11.3.2 The Registry staff contact the Mental Health Advocacy Service and/or the Mental Health Law Centre

Upon receiving a Form 12B , the Registry staff contact the Mental Health Advocacy Service (MHAS) and/or the Mental Health Law Centre (MHLC) to enquire as to whether they have instructions to act.  This usually triggers the MHAS to explain the significance of the Form 12B to the patient and to attempt to assist the patient in instructing the MHLC to act.  If the MHLC are instructed to act, they are entitled to receive a copy of the restricted document under section 250.  They also take instructions as to whether the patient seeks to challenge the decision by an application under section 434.  If the patient seeks to challenge the decision to restrict access, the MHLC usually prepares the application on behalf of the patient.

Upon receiving an application, the Registry will seal the restricted document in a locked file to prevent the Tribunal inadvertently reading the document without first having considered the section 434 application.  If the psychiatrist has not already done so, the Registry staff will ask for a redacted report which can be provided to the patient for the Tribunal members to consider.  The section 434 hearing will be listed to commence immediately before the patient’s review hearing for which the report was tendered.

11.11.3.3 Information sent to the Tribunal by someone other than the treating team

Occasionally the Registry receives submissions from family or others who want the Tribunal to consider the information but not disclose it to the patient.  Because the application of section 248 is enlivened by a document relating to the person being in the possession or control of the mental health service, sections 248 – 250 and 461 do not apply to information tendered directly to the Tribunal.  In the absence of any other specific provision in the Act to deal with this, the issue would be determined by the Tribunal as a question of procedural fairness.  This is a matter for the Tribunal to consider in all the facts and circumstances of the case at the hearing.

The Registry’s process when receiving such information is to explain to the sender that the request will be considered by the Tribunal at the hearing, and that they should be prepared to attend the hearing to address the Tribunal on the issue.  The Registry will seal the document in a locked file to prevent the Tribunal inadvertently reading it without first having considered the author’s submissions.

The sender will also be advised that an alternative may be to provide the document to the treating team and ask them to consider tendering it through the Form 12B process.

A link to the Tribunal’s website which provides information on this issue is here.

11.11.4 Determining the section 434 application

The Act provides little guidance in determining an application.

Relevant considerations will obviously include the strength of the evidence supporting the reason for the exception to entitlement to access.  Where the exception falls under section 249(1)(a), that would include the evidence supporting the psychiatrist’s belief that there is a significant risk, and the nature of that risk.   Where the exception falls under section 249(1)(b), it may include whether the personal information can be redacted, or whether the confidential information is available from another source.

A pragmatic way to approach the matter may be to ask the parties if they are prepared to conduct the hearing solely on the information which is available to the patient.  It may be that the Tribunal would be satisfied on that evidence alone.  If members are not satisfied and consider more evidence is required, it can then address the application.

 

Page reviewed 20 November 2020