Minter Ellison Health News 12 June 2013

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4 MINTER ELLISON LAWYERS HEALTH NEWS 12 June 2013 the outcome of the Mental Health Review Board, the location of his mental health providers or the lack of a formal mental status review over one month was not found to be causally related to Mr Wright’s decision to take his own life. The Coroner concluded that Mr Wright’s mental health care was reasonable and appropriate in the circumstances. Click here for the findings Western Australia LS and Mental Health Review Board [2013] WASCA 128 (24 May 2013) Court's judgement that the Mental Health Review Board does not have the power to carry out a review of an involuntary patient order after the person has ceased to be an involuntary patient LS (appellant) had a long standing history of mental illness. On 11 May 2011, Dr L made a Community Treatment Order (CTO) for LS and on 13 May 2011, revoked the CTO and ordered that LS be detained in an authorised hospital as an involuntary patient under section 70(1) of the Mental Health Act 1996 (WA) (MH Act). On 10 June 2011, Dr L ordered LS to continue to be detained under an involuntary treatment order. On 12 July 2011, the Mental Health Review Board (the Board) decided, under section 138 of the MH Act, to continue the involuntary order made by Dr L and on 22 July 2011, LS commenced proceedings in the State Administrative Tribunal (the Tribunal) for review of the Board’s decision. On 2 September 2011, the Board conducted a hearing to review the CTO of the 15 August 2011. The Board concluded that LS was no longer an involuntary patient within the terms of the MH Act. On the 6 September 2011, the Tribunal dismissed LS’s application made on 22 July 2011 for review of the Board’s decision because the Tribunal no longer had jurisdiction to review a decision of the Board where LS was no longer an involuntary patient. 2 LS made an appeal in the WA Supreme Court of Appeal (the Court) against the Tribunal’s order. LS relied on three grounds for appeal, these were: 1. The Tribunal erred in concluding that a review of an order of the Board under section 148A of the MH Act ‘falls away’ when the subject of the review ceases to be an involuntary patient. 2. The Tribunal made an error when it concluded that the powers of the Board when it carries out reviews and periodic reviews of involuntary patient orders under sections 138, 139 and 142 of the MH Act ‘falls away’ when the subject ceases to be an involuntary patient; and 3. The Tribunal erred when it treated the conditions under sections 138(3) and 139(2) of the MH Act as being functions and discretions of the Board to be exercised by the Tribunal under sections 29 (Tribunal’s powers in Review Jurisdiction) of The State Administrative Tribunal Act 2004 (WA) (the SAT Act). The Court considered relevant sections of the MH Act, including the provisions for involuntary patient orders, the powers of the Board, applications to the Tribunal and the jurisdiction and powers of the Tribunal under The State Administrative Tribunal Act 2004 (WA) (SAT Act). The Court observed the Tribunal’s review jurisdiction with regard to pervious case authorities. In particular, the Court noted that the Tribunal is required to give attention 2 See LS and Mental Health Review Board [2012] WASAT 76 (20 April 2012)
5 MINTER ELLISON LAWYERS HEALTH NEWS 12 June 2013 to the situation existing at the time of the decision under review. 3 Furthermore, the powers of the Tribunal may be broader than the original decision maker but the task of the Tribunal is to reconsider what the original decision maker did. The Court found nothing in the SAT Act that enabled the Tribunal to deal with a matter that is ‘different in essence’ from what was before the original decision-maker. 4 The Court dismissed the first ground for appeal because the Tribunal was unable to undertake its statutory power as LS had ceased to be an involuntary patient at that time. The Tribunal did not lack jurisdiction, but used its powers under section 47(1)(a) of the SAT Act to dismiss the proceeding. The Court considered the second ground of LS’s appeal and held that the Board's power to review under section 138 (and sections 139 and 142) is dependent upon the person concerned being an involuntary patient at that time. The provision is forward-looking in that it requires the Board to consider if the involuntary order at the time ‘should continue to have effect’. It is not required to consider whether a past decision is correct or not. In making the decision, the Board is to have regard to the person’s psychiatric and medical history at that point in time. The Board is to then determine the decision for the future, taking into account the best care and treatment that least interferes with the person’s rights and dignity. 5 In addition, the Court concluded that section 144 MH Act where the Board may review an involuntary case at any time, does not confer any power on the Board to consider the validity of previous involuntary patient orders. In relation to the third ground of appeal, the Court held that reviews under sections 138 and 139 of the MH Act and section 29(1) of the SAT Act are ‘functions’ of the Board as defined in section 5 of the Interpretation Act 1984 (WA). ‘Function’ is defined in the Interpretation Act 1984 as ‘powers, duties, responsibilities, authorities and jurisdictions.’ The Court dismissed the appeal. Click here for the full decision New Zealand Grobler and Accident Compensation Corporation [2013] NZACC 115 (24 April 2013) A recent judgment of the District Court considered whether delays during labour caused a baby to suffer a ‘treatment injury’ for the purposes of the Injury Prevention, Rehabilitation, and Compensation Act 2001 (the Act), and thus rendered the baby eligible for cover from the Accident Compensation Corporation (ACC). In September 2009, after a series of complications, Carla Grobler-Barrington (Ms G) gave birth to Amelia Grobler-Barrington (Amelia). On birth, Amelia was diagnosed with hypoxic ischemic encephalopathy (HIE), a condition affecting brain functioning caused by the brain being deprived of oxygen during birth. The question before the court was whether Amelia’s condition was caused by the treatment of Ms G during labour. This judgment relates to a recent decision of the Health and Disability Commissioner that was reported in this publication in May 2013. That decision criticised the conduct of Ms G’s midwife prior to the arrival of Ms G at hospital. This judgment focuses on the actions of hospital staff after Ms G’s arrival at hospital. 3 S 27(2) SAT Act and see Health Reports of Australasia Pty Ltd v Western Australian Planning Commission [2007] WASAT 60 4 s29(9) SAT Act 5 s5 and s6(2) MH Act
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Minter Ellison Health News 12 June 2013

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