When is it lawful to re-impose compulsory psychiatric treatment after discharge by a mental health tribunal?

Introduction

All Australian mental health acts allow a doctor to detain and treat a person with a mental illness without consent, providing certain conditions are met. However, after a period, psychiatrists may only continue compulsory treatment, if authorised to do so after application to a tribunal. Psychiatrists should only make such applications when they believe that continued compulsory treatment is the only practicable avenue available to protect their patients from harm. In the vast majority of cases, tribunals approve such applications. However, when a tribunal refuses to uphold an application, the treating psychiatrist may form the view that this has deprived the patient of the only option for safe and effective care.

The acts all provide a mechanism for patients to appeal a tribunal’s decision allowing their continued detention. However, no act contains provisions allowing the psychiatrist to appeal a decision and, when patients are discharged by the tribunal, there is an expectation they will be allowed to leave hospital promptly.

On occasion, a question may arise as to under what circumstances a clinician might lawfully re-impose compulsory treatment after a tribunal has discharged a patient from a prior order. A recent decision of the Victorian Supreme Court – XX v WW and Middle South Area Mental Health Service (2014) VSC 564 (‘XX v WW’) – has provided at least some guidance on this matter. The facts surrounding the case, the decision and its implications are set out below.

The facts

XX was a woman with bipolar disorder who in 2012 had suffered serious injury after jumping from a height. In August 2013, she was admitted involuntarily to a Melbourne psychiatric unit. Seven days after her admission, a psychiatrist made XX subject to an Involuntary Treatment Order (ITO).

XX appealed against the ITO to the Victorian Mental Health Review Board (as the relevant tribunal was then termed). During the hearing, XX told the Board that upon discharge, she would return to live with a friend who lived locally. She also said that she would follow up with her regular private psychiatrist. The Board had inquired about her relationship with her friend and whether her children, who lived with her husband, would be able to visit that home. XX also indicated that, in the longer term, she might relocate to Queensland but that, if she did, she would first organise follow-up with a Queensland psychiatrist.

The Board discharged the ITO as it considered one of the criteria for involuntary treatment of the, then operative, Mental Health Act 1986 (Vic) did not apply. Specifically, it found that XX could receive adequate treatment as a voluntary patient under the care of her private psychiatrist, and therefore compulsory treatment was not the manner of treatment least restrictive of her ‘freedom of decision and action’ (s 8(1)(e)). After the hearing, around lunchtime, XX returned to ward and made preparations for discharge.

At some point later, she advised ward staff that, contrary to what she had said in the hearing, she intended to immediately take up residence with a former employer in Queensland. At around 3:30 p.m., WW, an intern on the unit, asked a nurse member of the Mental Health Crisis and Assessment Team to assess XX. The nurse documented that XX had impulsively planned to go to Queensland with or without her children. The nurse noted that she had had no contact with her former employer for 5 years and that no formal psychiatric follow-up had been arranged. She also considered that XX was unaware of the role medication might play in keeping her well. At around 4:00 p.m., after receiving the nurse’s assessment and after consultation with XX’s inpatient psychiatrist, WW filled in the prescribed form noting the criteria for involuntary treatment applied to XX and recommending she be subject to another ITO. In evidence, WW stated that he considered it his duty to detain XX again. An hour later, the admitting psychiatrist reviewed XX and agreed that she required involuntary treatment. The following day, a second psychiatrist reviewed her and concurred.

Two days later, the Board conducted an urgent review of the new ITO and determined again that the criterion in s 8(1)(e) did not apply. She was discharged once more.

The decision

The primary issue to be decided in the case was whether WW could have lawfully made the second recommendation for an ITO, effectively continuing the compulsory detention and treatment of XX.

An important element of this issue, and the one that will be focused upon here, was whether WW had the power to recommend involuntary treatment only hours after the Board had discharged XX. Specifically, counsel for XX argued that irrespective of any strongly held view that WW may have had regarding the necessity for an ITO to protect the welfare of XX and her immediate family, the doctor had to respect the Board’s decision. Counsel claimed that when ‘the Board discharges an ITO and there is no relevant change in circumstances, the professional obligations and duties of the relevant treating practitioners must give way to the decision of the Board’.

In deciding the matter, McDonald J based his conclusions on an extremely detailed reading of the relevant provisions of the 1986 Act, including the objects (s 4) and principles of care and treatment (s 6A) laid out to guide its operation. On this basis, His Honour noted that there was ‘considerable force in the plaintiff’s contention that in order to perform its functions’, decisions of the tribunal had to be respected and that a decision ‘to make a recommendation for a new ITO simply because [a doctor] disagreed with the [tribunal’s] decision would be unlawful’. However, this did not mean that the Act prohibited a doctor from again imposing an ITO, nor even it did confine re-imposition to circumstances where a doctor had information not known to the tribunal, which placed ‘a significantly different complexion on the case’. Instead, he opined, a recommendation for a new ITO would be lawful provided the doctor had met five conditions. The doctor must have (1) had regard to the decision and reasoning of the tribunal, (2) acted in good faith, (3) not acted ‘arbitrarily or capriciously’, (4) not taken into consideration matters that the statute demanded be excluded from consideration and (5) not acted so as to render the tribunal’s decision of no value or importance. He clarified that a capricious decision would be one where the new ITO were ‘made in the absence of any changed circumstances and motivated solely by the [doctor’s] consideration that he/she disagrees with the decision of a [tribunal]’.

Implications of the decision

Two important factors should be held in mind before generalising broadly from the decision in XX v WW. First, all cases turn in part upon the relevant facts, and the situation here, where a patient, after a hearing, but before discharge from a unit, voiced future plans significantly at odds with those earlier expressed to the tribunal, will be very unusual. Second, McDonald J’s decision depended upon a close reading of the relevant provisions of the Mental Health Act, 1986 (Vic), but those exact provisions do not currently apply to any Australian jurisdiction, including Victoria, where the 1986 Act has been recently repealed and replaced by the significantly revised Mental Health Act 2014.

Although the mental health acts of all Australian jurisdictions contain provisions around the application of involuntary treatment that overlap significantly with the relevant provisions of the 1986 Victorian Act, the mental health acts of four jurisdictions contain provisions that may be interpreted as explicitly requiring the release of patients discharged by the tribunal – NSW (s 38[3]), Queensland (s 193), Western Australia (s 471) and the Australian Capital Territory (ACT) (s 47). In Western Australia and the ACT, breaches of these provisions are regarded as an offence affording the possibility of harsh penalties. Arguably, these provisions mean that it would not have been open to WW to re-detain XX had she been admitted to a hospital in one of these jurisdictions.

Some authors have suggested that the decision in XX v WW can be interpreted as meaning that when a tribunal discharges a patient from involuntary treatment, a doctor could only detain the patient again if there had been a change in the patient’s circumstances (Fritze, 2014; Victoria Legal Aid, 2014). However, McDonald J implied only that it would be unlawful for a doctor to disregard a decision by the Board to discharge a patient ‘in the absence of any changed circumstances for no reason other than the fact that the practitioner disagreed with the Board’s decision’ (emphasis added). This is a long way from saying that a change in the patient’s circumstances would be necessary, and indeed, this restrictive interpretation of the decision has already been questioned in a subsequent Supreme Court decision (TC v UD [2015] VSC 92).

In trying to understand the actual implications of the decision for clinical practice (at least in jurisdictions other than NSW, Queensland, Western Australia and the ACT) it is worth quoting a passage from an English House of Lords case – R v East London and City Mental Health NHS Trust and another ex parte von Brandenburg [2003] UKHL 58 (‘von Brandenburg’) (see Box 1). Von Brandenburg concerned the actions of a social worker, who applied to have a patient re-admitted 6 days after a tribunal had ordered the patient be discharged from hospital within 7 days. Lord Bingham, who wrote the decision, made an observation about the role of the doctor with regard to the Mental Health Act 1983 (UK). McDonald J also quoted this passage in XX v WW, although he did not base his decision on that case.

Box 1.

… [tribunal] hearings will take place where … a patient seeks to be discharged and the responsible doctors, or some of them, judge that he should not be discharged. Where an order for discharge is made by the tribunal, it will (unless the resisting doctors revise their opinion during the hearing) indicate that the tribunal has not accepted their judgment. A conscientious doctor whose opinion has not been accepted by the tribunal will doubtless ask himself whether the tribunal’s view is to be preferred and whether his own opinion should be revised. But if, having done so, he adheres to his original opinion he cannot be obliged to suppress or alter it. His professional duty to his patient, and his wider duty to the public, require him to form, and if called upon express, the best professional judgment he can, whether or not that coincides with the judgment of the tribunal. (von Brandenburg [2003] UKHL 58, [9])

Nothing in the judgement in XX v WW suggests that Australian doctors may not find themselves in a similar situation. Moreover, it seems likely that in at least some jurisdictions, Australian doctors have the power to re-detain a recently discharged patient provided that in doing so, they adhere to the five conditions outlined above.

It is crucial though to emphasise how rarely this situation should arise. A tribunal hearing offers a platform for psychiatrists to carefully outline their case that the patient meets the relevant treatment criteria. The criteria that will be most prone to dispute will be that the patient lacks decision-making capacity (in the jurisdictions where that forms part of the treatment criteria) (Mental Health Act 2013 (Tas) s 40; Mental Health Act 2014 (WA) s 25) and/or that the proposed compulsory treatment is the least restrictive option available. This least restrictive option criterion is present, although differently phrased, in all Australian mental health legislation (Mental Health Act 2007 (NSW) s 12; Mental Health Act 2000 (Qld) s 9; Mental Health Act 2009 (SA) s 7; Mental Health Act 2013 (Tas) s 12; Mental Health Act 2014 (Vic) s 5(d); Mental Health Act 2014 (WA) s 25; Mental Health (Treatment and Care) Act 1994 (ACT) s 9; Mental Health and Related Services Act 1998 (NT) s 14). Whether these criteria are met will depend crucially on interpretations of the relevant facts, and these will frequently be matters upon which reasonable minds might differ.

Presumably, it would only be in extraordinary circumstances that psychiatrists, who had presented their reasoning to a tribunal and who had heard counter-arguments to their opinions, would still, at the end of the hearing, not find themselves able to ‘revise their opinion’ at least to the extent that they might hold the view that the tribunal’s position was not unreasonable. Of course, this presumption depends entirely upon psychiatrists being present at hearings where their opinions are substantially challenged and/or where patients might deliberately dissemble. On this point, we note with some alarm that the ready availability of a psychiatrist to provide evidence at tribunal hearings is not always regarded as standard practice, and frequently, tribunals are left with no source of expert opinion other than a trainee. Given the importance of the decision upon whichtribunals are deliberating, the unavailability of a psychiatrist at a hearing might one day be regarded as a failure to act within expected professional standards. Certainly, a failure to appear at the original hearing would make the rapid re-imposition of compulsory treatment extremely difficult to justify in almost all circumstances.

Conclusion

In those very rare circumstances where patients are discharged from a compulsory treatment order by a tribunal and their psychiatrists continue to believe that without compulsory treatment they or others may come to serious harm, it may be lawful to re-apply a compulsory treatment order, provided that in so doing they were acting in good faith and not acting capriciously, considering only matters appropriate to the decision, including the tribunal’s reasoning, and not seeking to render the tribunal’s decision of no value or importance. However, the lawfulness of any particular instance would turn tightly on the individual facts of the case and a careful reading of the provisions of the relevant legislation. Psychiatrists should think very carefully, and if possible seek peer advice, before embarking on this route.