Chapter 9: Applications to review orders restricting a patient’s freedom of communication

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9.1 Relevant Legislation

Mental Health Act 2014 (WA) (the Act) s 7, 8, 261, 262, 427, 428, 429, 455.

9.2 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 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.

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

Patient means an involuntary patient, a mentally impaired accused required under the MIA Act to be detained at an authorised hospital, or a voluntary patient (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; (ss 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.

9.3 Application requirements

9.3.1     Who can apply and how

Section 427 provides that the following persons may apply to the Tribunal for a review of an order made under section 262 restricting a patient’s freedom of lawful communication under section 261:

  • the patient;
  • a carer, close family member or other personal support person of the patient;
  • a mental health advocate;
  • any other person who, in the Tribunal’s opinion, has a sufficient interest in the matter.

Whether a person is someone 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.

9.3.2     Timing

An application may be made at any time.

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].

9.4 Nature of proceedings

Proceedings under Part 21 Division 9 to review an order made by a psychiatrist under section 262 are review proceedings as defined in section 455 of the Act.  The reviewable decision is the decision to make the order under section 262 prohibiting a
patient from exercising, or limiting the extent to which a patient can exercise, a right under section 261.  The decision-maker is the psychiatrist who made the order under section 262 (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)).

9.5 Parties

Section 428 provides that under Part 21 Division 9 the parties to the proceeding are:

  •  the patient; and
  • if the applicant is not the patient — 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 428(c) there must be a specific order of the Tribunal to this effect.

9.6 Statutory test

The valid exercise of a statutory power generally requires that all statutory preconditions and requirements are met.  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 statutory requirements for making an order restricting a patient’s freedom of communication are set out in section 262.

(1) A psychiatrist may make an order —

(a) prohibiting a patient from exercising a right under section 261; or

(b) limiting the extent to which a patient can exercise a right under section 261.

(2) A psychiatrist cannot make an order under subsection (1) prohibiting, or limiting the extent of, a patient’s right under section 261(3)(a) [see and speak with other people in the hospital to the
extent that is reasonable], (b) [have uncensored communications with people, including by receiving visits, sending and receiving telephone calls, and sending and receiving mail and electronic
communications] or (e) [receive visits from, and be otherwise contacted by, other people at all reasonable times] unless satisfied that making the order is in the best interests of the patient.

(3) A psychiatrist cannot make an order under subsection (1) prohibiting, or limiting the extent of, a patient’s right under section 261(3)(c) or (d) to receive visits from the person’s legal practitioner or a mental health advocate unless satisfied that —

(a) there is a serious risk to the safety of the legal practitioner or mental health advocate if the order is not made; and

(b) there are no other steps that could reasonably be taken to reduce that risk.

(4) A psychiatrist cannot make an order under subsection (1) prohibiting, or limiting the extent of, a patient’s right under section 261(3)(c) or (d) to be otherwise contacted by the person’s legal practitioner or a mental health advocate.

(5) The order must be in the approved form and must include the following —

(a) the date and time when it is made;

(b) the reasons for making it;

(c) the name, qualifications and signature of the psychiatrist.

(6) A psychiatrist who makes an order under subsection (1) must, as soon as practicable —

(a) file it and give a copy to the patient; and

(b) give a copy to any carer, close family member or other personal support person of the patient.

(7) A psychiatrist must, before the end of each 24-hour period that an order made under subsection (1) is in force, review the order and confirm, amend or revoke it.

(8) A psychiatrist who confirms, amends or revokes an order made under subsection (1) must —

(a) file a record of the confirmation, amendment or revocation and the reasons for it; and

(b) advise the patient of the confirmation, amendment or revocation and those reasons.

(9) An order made under subsection (1) ceases to be in force if it is not reviewed before the end of any 24-hour period referred to in subsection (7).

(10) A psychiatrist who makes an order under subsection (1) in respect of a patient must, within 24 hours after the time when the order is made, advise the Chief Mental Health Advocate that the order has been made.

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

‘Correct’ means that the decision is correct in law (including that it is compliant with the specific requirements of section 262).

‘Preferable’ means that to the extent that there is a range of decisions that are correct in law, the decision is the best in all of the relevant facts and circumstances.  This is directed at the fair treatment of those affected by the decision.

For the purpose of the Tribunal ascertaining the patient’s best interests for the purposes of section 262(2), the Tribunal must have regard to these things:

  • the person’s wishes, to the extent that it is practicable to ascertain those wishes [see Act s 8];
  • the views of each of these people:
    • if the person has an enduring guardian or
      guardian — the enduring guardian or guardian;
    • if the person is a child — the child’s parent or guardian;
    • if the person has a nominated person — the nominated person;
    • if the person has a carer — the carer; if the person has a close family member — the close family member;
  • any other matter that the Tribunal considers relevant to making the decision.

9.7 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.’

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.  Members should look to the statutory language 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).

9.8 Tribunal powers

Section 429 provides that the Tribunal may decide the application by:

  • confirming the order as made or amended; or
  • amending, or further amending, the order as made or amended; or
  • revoking the order.

9.9 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 an application under Division 9 are set out here.

9.10 Adjournments

9.10.1   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.
9.10.2   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.  However it may be necessary to resort to an adjournment should the Tribunal determine that further information is required.

9.10.3   Adjournment standard 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 adjournment standard orders available for an application under section 427 are set out here.

Page reviewed 20 November 2020