Chapter 9: Applications to resolve certain questions arising in respect of nominated persons

Mental Health Act 2014 (WA) (the Act) s 263, 264, 265, 266, 267, 268, 269, 270, 271, 272, 273, 274, 275, 276, 277, 278, 279, 430 and 431.

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).

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

Nomination means a nomination made under section 273(1).

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; (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.

9.3.1     Who can apply and how

Section 430 provides that the following persons may apply to the Tribunal for a decision under Division 10 about a nomination:

• the person who made the nomination;
• the nominated person;
• a carer, close family member or other personal support person of the person who made the nomination;
• 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.

The application must clearly identify the orders sought.

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].

Proceedings under Part 21 Division 10 are first-instance applications. This means that the Tribunal is the primary decision maker in its original jurisdiction.  As primary decision makers, the Tribunal has broad discretion as to the weight to be given to the relevant factors.

Section 433 provides that under Part 21 Division 10 the parties to the proceeding are:

• the person who made the nomination; and
• if the applicant is not the person who made the nomination – 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 433(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.

The Tribunal has two types of decision-making powers concerning nominations:

• the power to make a declaration about the validity of a nomination (s 431); and
• the power to revoke a nomination in limited circumstances (s 432).

Other matters, for example a nominated person’s power to challenge a decision under section 269(1) of the Act, may fall within other sections of the Act (such as section 434).  See Chapter 11.

9.6.1 Decision concerning a declaration about the validity of a nomination

The Tribunal’s first type of decision-making power concerning nominations is the power to make a declaration about the validity of a nomination.  This power is enlivened by an application under section 430.  There is no statutory power for the Tribunal to raise this issue on its own initiative.

The valid exercise of a statutory power generally requires that all statutory preconditions and requirements are met.  The grounds for invalidity may arise from a failure at any stage of this process.  Accordingly, testing the validity of a nomination involves review of the statutory requirements for making a nomination.  These are set out in Part 16 Division 3 Subdivision 3 (sections 273 – 276).

Any person, including a child, may nominate another to be their nominated person, provided s/he understands the effect of making the nomination. (s 273(1)).

Only an adult is eligible to become a nominated person (s 274).  A person cannot have more than one nominated person at any given time (s 276).

Section 275 provides that a nomination is not valid unless:

• it is in the approved form; and
• states the name and contact details of the person being nominated; and
• states the date on which it takes effect (commences); and
• it is signed by the person making the nomination, or another person in the presence of, and at the direction of the person making the nomination; and
• it is signed by the person being nominated to indicate that the person accepts the nomination.

All signatures referred to above must be witnessed by a person authorised by law to take declarations.  That person cannot be a signatory to the nomination itself (see s 275(2)).

Part 4 of the Oaths, Affidavits and Statutory Declarations Act 2005 (WA) details the process for witnessing statutory declarations.  Section 12(6) provides that persons authorised by law to take declarations within Western Australia include:

• any person described in the second column of Schedule 2 of the Oaths, Affidavits and Statutory Declarations Act 2005; or
• any person before whom, under the Statutory Declarations Act 1959 of the Commonwealth, a statutory declaration may be made.

A person may revoke their nomination at any time, by any means (s 277).  A nomination is also revoked with the making of a new nomination 277(2).  Section 278 provides that a nominated person can relinquish the role of the nominated person by resigning. The resignation must be:

• in writing, and
• be signed by the nominated person; and
• be given to the person (patient) who made the nomination.

The resignation takes effect either when it is ‘received’ by the person who made the nomination, or the date specified in the resignation (whichever is the later of the two).

Tribunal members should become familiar with all aspects of the Act related to the making of nominations.  The specific statutory test applied will depend on the basis for the challenge to the validity of the nomination.

9.6.2  Decision concerning a revocation of a nomination

The Tribunal’s second type of decision-making power concerning nominations is the power to revoke a nomination in limited circumstances.  This power is enlivened by an application under section 430.  There is no statutory power for the Tribunal to raise this issue on its own initiative.

Section 432 provides that the Tribunal may revoke a nomination if satisfied that the nominated person is not an appropriate person to perform the role of the nominated person because:

• the person is likely, in performing that role, to adversely affect to a significant degree the interests of the person who made the nomination; or
• the person is not capable of performing that role because of mental or physical incapacity; or
• the person is not willing, or is not reasonably able, to perform that role.

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 10 are not review proceedings.  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 10.  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).

In the context of determining an application challenging the validity of a nomination, 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.

Likewise, where the application raises an allegation that a nominated person is not an appropriate person to perform the role, the Tribunal would expect the applicant to identify the facts and evidence supporting this allegation.  It is not required that the Tribunal undertake its own enquiries.

Section 431 provides that when deciding an application concerning the validity of a nomination, the Tribunal may decide the application by declaring that:

• a nomination is valid;
• a nomination is valid but pursuant to section 431(2)(b) of the Act the terms of the nomination are varied to give effect to the intention of the person who made the nomination; or
• a nomination is invalid.

For an application raising an allegation that a nominated person is not an appropriate person to perform the role under section 432, the Tribunal may revoke a nomination only if it is satisfied that the nominated person is not an appropriate person to perform the role of the nominated person because:

• the person is likely, in performing that role, to adversely affect to a significant degree the interests of the person who made the nomination; or
• the person is not capable of performing that role because of mental or physical incapacity; or
• the person is not willing, or is not reasonably able, to perform that role.

If the Tribunal declares that a nomination is invalid, the nomination ceases to be in force (s 431(3)). If the Tribunal declares a nomination to be valid, it remains in force (s 431).

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.