Jurisdictional issues and validity of orders

Jurisdictional issues and validity of orders

Jurisdictional issues can arise in one of two ways:

  • by errors on the face of assessment orders or temporary treatment orders
  • or by hearings taking place after an order has expired.

Errors on the face of assessment or temporary treatment orders

The first, and the most common, is when the originating paperwork for the making of an assessment order or temporary treatment order is in some way defective. For example, the dates may not match, or the authorised psychiatrist may not have ticked the box which identifies whether an assessment or temporary treatment order is to be inpatient or community. This raises the question of whether a person can legally be detained under such an order. 

It should be noted that in these cases, if an order is held to be invalid by the tribunal, there is a strong likelihood that the treating team will start the compulsory treatment process again, meaning your client could be waiting up to another 28 days for a hearing. 

On rare occasions there may be an issue of whether the person making that order had the authority to do so. See  NMP [2016] VMHT 65 (28 July 2016). In this case the order was found to be invalid as the registrar who made the order had not followed the terms of the instrument delegating authority to her to make such orders. 

Note that the psychiatrist who makes a temporary treatment order must be different to the psychiatrist who makes the assessment order (s.47)

The relevant section of the Act regarding validity is s. 361:

Section 361: Validity of order if there is an error

  1. The validity of an order made under this Act (other than an order made by the Tribunal) or any other document made or prepared under this Act is not affected by an error in it unless—
    1. the error related to the grounds on which the order or document was made and proper grounds for making the order or document do not exist; or 
    2. as a result of the error, the order or document does not comply with a mandatory requirement of this Act relating to the making of the order or document. 
  2. If an error in an order or other document does not affect the validity of the order or document, the person who made the order or document may correct the error.

Generally in these matters, when considering s 361, the tribunal will have reference to the principle in Project Blue Sky v Australian Broadcasting Authority [1988] HCA 28 which is authority for the principle that acts done in breach of a condition regulating the exercise of a statutory power are not necessarily invalid in every case.

The tribunal has been careful in its decisions to retain a power of discretion regarding whether or not orders are valid in any given circumstance. The tribunal’s reasoning has been heavily informed by what the consequences of an invalid finding would be for the person subject to the order. The tribunal will take any delay that your client is subject to seriously and is likely to apply Project Blue Sky in a manner that prevents delay. See YFC [2016] VMHT 44 (8 June 2016). However, it is untested whether the tribunal’s approach to s 361 is a correct application of Project Blue Sky given the wider interpretation of the Act.

It is possible that upon reassessment the treating team may not make another order, see YFC [2016] VMHT 44 (8 June 2016), but there is no guarantee of this.

Mental Health Tribunal cases dealing with validity of order 

VUZ [2016] VMHT 64 (14 July 2016)

The tribunal found that despite the language of s 49 (which employs the term ‘must’), compliance with this section was not a ‘mandatory requirement’. It did so on the basis that most of the requirements in relation to the making of a temporary treatment order are described using the word ‘must’, and that if all of these provisions were regarded as ‘mandatory requirements’ for the purpose of s 361, then s 361 would be largely redundant, and all errors in relation to temporary treatment orders would lead to invalidity, which, it held, was unlikely to have been the intention of Parliament.

DQU [2017] VMHT 53 (15 September 2017)

In this case, the authorised psychiatrist had mistakenly used a revocation form instead of a variation form when he wished to vary an order. The tribunal found that the order had been revoked and that the treating team would have to start again with a new assessment order
 

NMP [2016] VMHT 65 (28 July 2016) 

In this case the order was found to be invalid as the registrar who made the order had not followed the terms of the instrument delegating authority to make such orders

XIY [2017] VMHT 59 (22 November 2017)

In this matter, the authorised psychiatrist did not fill out section 4 of the MHA10 form identifying whether it was an inpatient or community treatment order. The tribunal found the order was not valid. The tribunal stated that whether an error of this kind renders an order invalid depends on the facts of each case and while consistency was desirable, the MHT did not want to abdicate from its role of scrutiny of orders. Distinguished from VUZ (above) on the basis that an application for ECT was being considered and this increased the consequences for XIY as per Project Blue Sky. In addition, there was ambiguity on the file about whether the treating team thought he should be an inpatient or in the community. XIY was on a community treatment order in Queensland and wished to return. XIY wished for clarity and was not troubled at the prospect of delay.

YFC [2016] VMHT 44 (8 June 2016)

The authorised psychiatrist did not fill out section 4 of the MHA10 form identifying whether it was an inpatient or community treatment order. The tribunal found order not valid in these circumstances and YFC's right to know under which authority he is being detained significant. YFC was already in hospital and wanted the hearing to proceed that day. It was agreed that if the order was invalid he would be assessed again immediately and if necessary, the full hearing would proceed. The tribunal stated that had a finding of invalidity required a restart in the compulsory treatment in circumstances where there would be a substantial delay before a hearing, they would have decided differently as delay is a serious consequence for a party under Project Blue Sky. YFC was assessed and considered by the treating team to be capable of voluntary treatment. The substantive hearing did not proceed.

XOG [2016] VMHT 40 (3 June 2016)

In this case, the dates on the assessment order and inpatient temporary treatment order had been altered and initialled by the authorised psychiatrist. The tribunal found that this error did not render order invalid as per s. 361. The tribunal stated it needed to be satisfied that the time limits in the Act had been complied with and found that they were. 

Hearing not conducted until after order has expired

The Act is silent about the consequences of a hearing being held out of time. This could happen when the treating team have applied for a treatment order hearing but the matter has not been listed until the current order has expired. This issue has not been tested in VCAT or the higher courts. It is arguable that in this circumstance the order should fall away and the person subject to the order revert to voluntary status.

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