Mental Health and Disability Advocacy lawyers recently represented Nella (not her real name), a 67 year old woman who was detained in an Aged Psychiatric Unit.
At the time Nella sought our assistance, she was due to be flown to a mental health service in Queensland in a matter of hours. We initially assisted her to successfully resist efforts by the Aged Psychiatric Unit to transfer her to Queensland against her wishes.
As a result of our advocacy, it was determined that she could not be transferred to Queensland as that state does not have a ‘corresponding law’ as required by section 323(4)(a)(iii) of the Mental Health Act 2014.
In addition, Nella requested Victoria Legal Aid to represent her at the Mental Health Tribunal. This summary focuses on the tribunal decision in Nella’s matter.
The issues
In August 2014, Nella decided to return to Victoria after living in Queensland for 10 years. She explained to the tribunal that one of the reasons she decided to return to Victoria related to issues that her treating team in Victoria regarded as delusions.
After arriving in Victoria, Nella stayed with various family members and friends, but also stayed in hostels and at times slept rough at various train stations.
In January 2015, Nella presented to the hospital emergency department. According to reports provided to the tribunal, Nella presented with ‘somatic complaints’ and a ‘complex system of paranoid delusions’.
The law
In this case, the issue of ‘treatment’ and treatment criterion 5(b) of the Act were subject to consideration by the tribunal.
Definition of treatment
The Act defines treatment in section 6 as follows:
For the purposes of this Act –
- a person receives treatment for mental illness if things are done to the person in the course of the exercise of professional skills–
- to remedy the mental illness; or
- to alleviate the symptoms and reduce the ill effects of the mental illness...
The hospital argued that an inpatient order was required to provide 'treatment' that involved 'hospitalisation, containment and observation'. No medication was being provided, and at best it was 'contemplated'. Victoria Legal Aid senior lawyer Hamish McLachlan argued that this did not contemplate 'treatment' as defined by the Act.
Treatment criteria – section 5(b)
Treatment criteria in section 5(b) of the Act requires that because a person has mental illness, the person needs immediate treatment to prevent –
- serious deterioration in the person’s mental or physical health; or
- serious harm to the person or to another person.
The hospital argued in its report on compulsory treatment that Nella needed immediate treatment to prevent both serious deterioration in her mental state, and serious harm to herself.
During discussion before the tribunal, the hospital conceded that Nella’s mental state was unlikely to further deteriorate, and emphasis was placed on the potential harm and financial risks that could result from her behaviour.
Hamish made submissions that the deterioration identified by the treating team did not amount to serious deterioration. Under the Act, deterioration must be serious and imminent enough to require immediate treatment.
In addition, it was submitted that while sleeping rough was not great for a person’s health or safety, sleeping in train stations was not necessarily sufficiently serious to satisfy the serious harm criterion in section 5(b) of the Act.
Mental Health Tribunal decision
Definition of treatment
In relation to treatment, the tribunal agreed with our submission that the definition requires that to qualify as treatment an intervention must:
- remedy the mental illness or reduce the ill effects of the mental illness; and
- alleviate symptoms of the mental illness.
In Nella’s case, she had not received any medication. At the hearing the hospital said it had no plans to commence medication.
The tribunal found that detention alone did not remedy mental illness, and while it may have reduced the ill effects it did not also alleviate the symptoms, stating:
‘Unless the patient’s condition is treatable (in the sense of remedying the mental illness or alleviating the symptoms and reducing the ill effects of the mental illness) the person’s confinement becomes preventative detention, which is not within the objectives and purpose of the Act.’
Treatment criterion – section 5(b)
In considering the phrases ‘serious deterioration’ and ‘serious harm’ the tribunal adopted an ordinary meaning and considered the dictionary definitions. It noted that serious is defined as ‘important, not to be trifled with and not slight or negligible’ and harm as ‘damage, hurt or injury’.
Accordingly, the tribunal stated
‘Serious deterioration can therefore be interpreted as to become worse to a degree of severity considered of importance or demanding consideration. Deterioration must be more than slight. Serious harm is most appropriately defined as encompassing physical or psychological injury, whether temporary or permanent, that endangers, or is, or is likely to be, very considerable and longstanding.’
In addition, the tribunal noted harm could extend to the broader contexts of harm, including social, financial and reputational, and that it ‘needs to be assessed in the context of an individual patient’s life and circumstances.’
In summary, the tribunal found:
- the evidence did not establish that Nella needed treatment to prevent ‘serious deterioration’ in her mental health
- Nella’s decision to sleep rough was not sufficiently serious or harmful to her mental or physical health to constitute serious harm under the Act
- the fact that Nella planned to sell her home in Queensland and move to Victoria was based on her delusional beliefs, but did not reach the level of severity that would be regarded as 'serious'.
Updated