T v South Western Sydney Local Health District [2022] NSWSC 1173 (2 September 2022)

Last Updated: 20 September 2022

Supreme Court New South Wales

Case Name:	T v South Western Sydney Local Health District
Medium Neutral Citation:	[2022] NSWSC 1173
Hearing Date(s):	25 July and 5 August 2022 and written submissions
Decision Date:	2 September 2022
Jurisdiction:	Equity
Before:	Lindsay J
Decision:	Subject to allowing the parties an opportunity to be heard as to the form of the orders to be made, and costs, orders are to be made for a community treatment order affecting the plaintiff to be revoked.
Catchwords:	MENTAL HEALTH – Mental Health Review Tribunal – Appeal – Community Treatment Order – Forced medication by depot injection – Availability of other care of a less restrictive kind – Oral medication in lieu of depot injection – Consideration of whether oral medication consistent with safe and effective care, appropriate and reasonably available to affected person
Legislation Cited:	Civil Procedure Act 2005 Guardianship Act 1987 NSW Mental Health Act 2007 NSW – sections 51, 53, 163, 164 Uniform Civil Procedure Rules 2005 NSW
Cases Cited:	CCR v PS (No 2) (1986) 6 NSWLR 622 Harry v Mental Health Review Tribunal (1994) 33 NSWLR 315 J v Lieschke [1987] HCA 4; (1987) 162 CLR 447 Re Eve 1986 CanLII 36 (SCC); (1986) 2 SCR 388 Re Frieda and Geoffrey [2009] NSWSC 133; 40 Fam LR 608 Re Victoria [2002] NSWSC 647; 29 Fam LR 157 Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 S v South Eastern Sydney and Illawarra Area Health Service [2010] NSWSC 178 Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) [1992] HCA 15; (1992) 175 CLR 218 Z v Mental Health Review Tribunal [2015] NSWCA 373
Category:	Principal judgment
Parties:	Plaintiff: T, a mentally ill person Defendant: South Western Sydney Local Health District
Representation:	Counsel: Plaintiff: AG Barwick, Solicitor Defendant: E Holmes Solicitors: Plaintiff: Williamson Barwick Defendant: NSW Crown Solicitor
File Number(s):	2022/00134173

JUDGMENT

INTRODUCTION

1. By a summons filed on 10 May 2022 (and amended on 19 May 2022) the plaintiff appeals (pursuant to section 163 of the Mental Health Act 2007 NSW) against a determination made on 11 November 2021 by the Mental Health Review Tribunal (constituted by section 140 of the Act) that she be the subject of a “community treatment order”.
2. The appeal was not instituted within the time limited by rule 50.3 of the Uniform Civil Procedure Rules 2005 NSW (“UCPR”); but it was heard nonetheless without any objection by the defendant (the declared mental health facility charged with implementation of the community treatment order under appeal) and, accordingly, the time for appeal should be formally extended up to and including the date upon which the plaintiff filed her amended summons. For completeness sake, any requirement (under UCPR rule 50.3(2)) that an application for an extension of time under UCPR rule 50.3(1) be included in the plaintiff’s summons should also be dispensed with.
3. Although the plaintiff accepts that she suffers from a mental illness, there is no suggestion that she is a “person under legal incapacity” within the meaning of section 3(1) of the Civil Procedure Act 2005 (“CPA”) or that she is required by UCPR rule 7.14 to be represented by a tutor.
4. The definition of “person under legal incapacity” in CPA section 3(1) includes “an involuntary patient” within the meaning of the Mental Health Act 2007 NSW. The plaintiff was an involuntary patient when, on 11 November 2021, the Tribunal determined (under section 38 of the Mental Health Act 2007) that she be discharged from the mental health facility in which she was a patient subject to the community treatment order under appeal, to which she consented. She has not been an involuntary patient at any time during the pendency of her appeal.

WHAT IS A COMMUNITY TREATMENT ORDER?

5. A community treatment order is defined by section 4(1) of the Mental Health Act 2007 as “a community treatment order under Part 3 of Chapter 3” of the Act. In that Part, by virtue of section 50, a person for whom a community treatment order has been applied for or made is described as an “affected person”.
6. Chapter 3 of the Act is headed “Involuntary Admission and Treatment In and Outside Facilities”. Part 3 of Chapter 3 (comprising sections 50-67) is headed “Involuntary Treatment in the Community”.
7. Section 51 of the Act provides (with emphasis added) that “[a] community treatment order authorising the compulsory treatment in the community of a person may be made by the Tribunal” on the application of specified classes of person, essentially medically qualified.
8. The provisions of the Act governing the making and implementation of a community treatment order must be read against the background of the common law’s entrenched concern for the protection of civil liberties, especially in relation to medical treatment. The norm is that a prerequisite to the medical treatment of an individual is a need for the individual’s consent to that treatment: Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 at 489.
9. Forced medical treatment is exceptional; but, subject to procedural safeguards, permissible when justified by necessities recognised by the law: Harry v Mental Health Review Tribunal (1994) 33 NSWLR 315 at 323E, 332G-333F and 334B-335D.
10. It is because of the intrusive effect of a community treatment order on the civil liberties of an affected person that Parliament has laid down conditions for the making of such an order: Z v Mental Health Review Tribunal [2015] NSWCA 373 at [35].
11. On an appeal under section 163, the Court must identify and be satisfied as to each of the statutory pre-conditions to the making of a community treatment order, and must consider the matters required by the Mental Health Act to be considered: Z v Mental Health Review Tribunal [2015] NSWCA 373 at [7]. Each case must be decided on its own facts and by reference to the governing law, particularly sections 51, 53, 163 and 164 of the Act.
12. The Court must also be mindful of the protective purpose of the Mental Health Act in the context of the making, and implementation, of a community treatment order. That purpose is confirmed by sections 3, 68 and 105 of the Act, subject to the qualification (recorded in section 195) that those sections provide guidance in the administration of the Mental Health Act and do not create, or confer on any person, any right or entitlement enforceable at law.

THE COMMUNITY TREATMENT ORDER UNDER APPEAL

Legal Context

13. The community treatment order under appeal was made by the Tribunal under section 38 of the Mental Health Act upon the conduct, under section 37 of the Act, of a review of the plaintiff’s status as an involuntary patient.
14. Section 38 is in the following terms (with emphasis added):

“38 Purpose and findings of reviews of involuntary patients

(1) The Tribunal is, on a review of an involuntary patient, to determine whether the patient is a mentally ill person for whom no other care (other than care in a mental health facility) is appropriate and reasonably available.

(2) For that purpose, the Tribunal is to do the following—

(a) consider any information before it,

(b) inquire about the administration of any medication to the patient and take account of its effect on the patient’s ability to communicate.

(3) If the Tribunal determines that the patient is not a mentally ill person, the patient must be discharged from the mental health facility in which the patient is detained.

(4) If the Tribunal determines that the patient is a mentally ill person and that no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the patient, the Tribunal must make an order that the patient continue to be detained as an involuntary patient in a mental health facility for further observation or treatment, or both.

(5) In any other case that the Tribunal determines that a patient is a mentally ill person, it must make an order that the patient be discharged from the mental health facility in which the patient is detained and may make any of the following orders—

(a) an order that the patient be discharged into the care of a designated carer or the principal care provider of the person,

(b) a community treatment order.

(6) The Tribunal may defer the operation of an order for the discharge of a patient for a period of up to 14 days, if the Tribunal thinks it is in the best interests of the patient to do so.

(7) An order made by the Tribunal under this section is to be in the form approved by the President.”

15. Upon an application of section 38(5), the Tribunal chose to make a community treatment order rather than an order that the plaintiff be discharged into the care of a “designated carer” (defined by section 71, read with section 72 of the Mental Health Act) or a “principal care provider” defined by section 72A.
16. Those provisions of the Mental Health Act can operate in conjunction with the provisions of the Guardianship Act 1987 NSW. The Tribunal was not, in terms, bound to make a community treatment order.
17. Section 71(1)(a) of the Mental Health Act defines “the designated carer” of a patient in terms that include “the guardian of the patient”.
18. Section 4(1) of the Mental Health Act provides that “‘guardian’, in relation to the exercise of any function under [the] Act by the guardian of a person under guardianship, means a guardian who is able to exercise that function.” It also provides that the expression “person under guardianship” means “a person under guardianship within the meaning of the Guardianship Act 1987”.
19. Section 3(1) of the Guardianship Act defines a “person under guardianship” as “a person who has a guardian within the meaning of this Act”. It also defines the expression “guardian” to mean “a person who is, whether under this Act or any other Act or law, a guardian of the person of some other person (other than a child who is under the age of 16 years), and includes an enduring guardian”.
20. The subsection defines the expression “enduring guardian” to mean “a person appointed as an enduring guardian under Part 2” of the Guardianship Act. Such an appointment is made (by the execution of a written instrument in a prescribed form) by an appointor in favour of an appointee who consents to be his or her guardian. Such an appointment generally has effect only during such period of time as the appointor is “a person in need of a guardian”. It is said to “endure” because, unlike the appointment of an agent under the general law, it can operate after an appointor has lost mental capacity.
21. By virtue of s 6E of the Guardianship Act, subject to the terms of the written instrument of appointment, an instrument appointing a person as an enduring guardian authorises an appointee, while the appointment has effect, to exercise the following functions:

(a) Deciding the place (such as a specific nursing home, or the appointor’s own home) in which the appointor is to live;

(b) Deciding the healthcare that the appointor is to receive;

(c) Deciding the other kinds of personal services that the appointor is to receive;

(d) Giving consent (under Part 5 of the Guardianship Act) to the carrying out of medical or dental treatment on the appointor;

(e) Any other function relating to the appointor’s person that is specified in the instrument.

22. The Guardianship Division of the NSW Civil and Administrative Tribunal (“NCAT”) has power under section 14 of the Guardianship Act (qualified by other provisions of the Act) to appoint a guardian (by means of a “guardianship order”) if satisfied that the person in respect of whom an order is to be made is “a person in need of a guardian”.
23. The expression “a person in need of a guardian” is defined by section 3(1) of the Guardianship Act to mean “a person who, because of a disability, is totally or partially incapable of managing his or her person”.
24. Section 3(2) of the Guardianship Act provides as follows:

“(2) In this Act, a reference to a person who has a disability is a reference to a person—

(a) who is intellectually, physically, psychologically or sensorily disabled,

(b) who is of advanced age,

(c) who is a mentally ill person within the meaning of the Mental Health Act 2007, or

(d) who is otherwise disabled,

and who, by virtue of that fact, is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation.”

25. Section 3C of the Guardianship Act also addresses the relationship between that Act and the Mental Health Act. It is in the following terms:

“3C Relationship with Mental Health Act 2007

(1) A guardianship order may be made in respect of a patient within the meaning of the Mental Health Act 2007.

(2) The fact that a person under guardianship becomes a patient within the meaning of the Mental Health Act 2007 does not operate to suspend or revoke the guardianship.

(3) However—

(a) a guardianship order made, or

(b) an instrument appointing an enduring guardian,

in respect of a person who is, or becomes, a patient within the meaning of the Mental Health Act 2007 is effective only to the extent that the terms of the order or instrument are consistent with any determination or order made under the Mental Health Act 2007 in respect of the patient.”

26. It is not necessary for the purpose of this judgment to explore in detail the respective jurisdictions of the Mental Health Review Tribunal and NCAT, or the jurisdiction (including an inherent, protective jurisdiction) of the Court recognised by both the Mental Health Act and the Guardianship Act.
27. It is sufficient to notice that the legislative scheme for management of the person (and, it should be noted, the estate) of a mentally ill person has a degree of flexibility beyond the constraints attending the making, or operation, of a community treatment order.

The Tribunal’s Determination

28. With editorial adaption, the Tribunal’s determination that the plaintiff be the subject of a community treatment order was in the following terms (with emphasis added):

“REVIEW OF INVOLUNTARY PATIENT

Section 38

Purpose of review: Under section 38 of the Mental Health Act 2007 ... the Tribunal must review an involuntary patient at least once every 3 months for the first 12 months and then at least once every 6 months or, if considered appropriate, at least once every 12 months after the first 12 months of detention while the person continues to be an involuntary patient. The Tribunal is to determine if the patient is a mentally ill person for whom no other care (other than in a mental health facility) is appropriate and reasonably available.

DETERMINATION OF TRIBUNAL

[The plaintiff] is an involuntary patient and was brought before the Tribunal on 11 November 2021.

The Tribunal determined under Section 38 of the Mental Health Act 2007 that ... [the plaintiff] is a mentally ill person , and ... must be discharged from the mental health facility subject to a community treatment order in accordance with the following terms and conditions as set out in the attached treatment plan:

(1) The mental health facility which is to implement the order is Campbelltown Mental Health Service.

(2) [The plaintiff] is required to

• be present at – ‘as set out in the attached treatment plan’;
• during the following times - ‘as set out in the attached treatment plan’ and there receive such medication and therapy, counselling, management, rehabilitation and other services provided in accordance with the attached treatment plan approved by this order.

(3) This order is to expire no later than 10 November 2022.

REASONS OF MEMBERS FOR DECISION: ... “[The plaintiff] suffers from suffers from schizo affective disorder & has had a partial response to medication. She presents as having risk of harm to herself (misadventure) & others.

She has plateaued on what can be offered at Forensic Hospital.

Ready to discharge: 12 month CTO required because she has disengaged from treatment in the past + risk of relapse.

[The plaintiff] agrees with CTO – she will be discharged today to live with her son.”

29. The “Treatment Order Plan” incorporated in the Tribunal’s Determination by reference was dated 5 November 2021. It nominated as the plaintiff’s “Treating Doctor/Psychiatrist” a named “Consultant Psychiatrist” (for convenience, identified in these reasons as “Dr S”) or delegate.
30. With editorial adaptation, the Treatment Order Plan was in the following terms (with emphasis added):

“GOALS OF TREATMENT

• The goal of this treatment plan is to better control symptoms of mental illness using medication, counselling and education to promote improved mental health in the least restrictive environment that is consistent with safe and effective care.

• This will allow [the plaintiff] to establish and reaffirm connections in her community through opportunity for graded activities, social contacts and family support with the view for [the plaintiff] to pursue her recovery and participate in meaningful activities with stability in her mental state.

• It will improve [the plaintiff’s] independence in taking her prescribed medication and improved understanding of and supported responsibility for taking medicine with a view to discharge from the Community Treatment Order.

RESPONSIBILITIES OF THE MACARTHUR ASSERTIVE TREATMENT TEAM

• [The plaintiff] will be provided with support, monitoring and education about her mental illness and support options available to her and her family. Education will include but is not limited to information about early warning signs, precautions against relapse, the nature and course of her illness, the potential effects of drug and alcohol use and ways to increase her coping skills utilising the stress vulnerability model.

• Ensure that [the plaintiff] is aware of her rights of appeal and rights and responsibilities as a consumer of the mental health service and in relation to seeking revocation or variation of the Community Treatment Order.

• The allocated Clinical Care Coordinator will arrange the availability of a delegate during any leave of absence.

• Facilitate the effective implementation of the Community Order Treatment by arranging and supporting effective communication between [the plaintiff], her family, Clinical Care Coordinator or delegate, Consultant Psychiatrist or Delegate or the Director of Community Order Treatment at the Macarthur Mental Health Care Service.

[THE PLAINTIFF’S] OBLIGATIONS

1. [The plaintiff] must take the medication prescribed by [Dr S] or delegate.

Current Medication:

Medication: Olanzapine Relprevv

Dose: 405mg

Oral/intramuscular: Intramuscular injection

Frequency: Every fortnight

2. [The plaintiff] must attend reviews with [Dr S] or delegate at least once every 8 weeks for review of her mental state, medication and continued care planning.

3. [The plaintiff] must meet with [her] Clinical Care Coordinator or delegate at least once a fortnight, to facilitate the development of rapport, goal planning and support to engage in meaningful community activities.

4. The frequency, place or timing of appointments between [the plaintiff], her Care Coordinator and treating doctor or delegates may be changed by the Clinical Care Coordinator or treating doctor.

5. [The plaintiff] must attend appointments for review and medication at [an address of the Campbelltown Mental Health Service in Campbelltown].”

31. The Tribunal’s community treatment order conforms with the formal requirements of section 57 of the Mental Health Act in that, inter alia, it specifies a duration of 12 months.
32. The treatment plan incorporated in the community treatment order complies with the formal requirements of section 54 of the Mental Health Act, which is in the following terms:

“54 Requirements for treatment plans under community treatment orders

A treatment plan for an affected person is to consist of the following —

(a) in general terms, an outline of the proposed treatment, counselling, management, rehabilitation or other services to be provided to implement the community treatment order,
(b) in specific terms, the method by which, the frequency with which, and the place at which, the services would be provided for that purpose.”

THE OPERATION OF A COMMUNITY TREATMENT ORDER

33. Section 57 of the Mental Health Act and subsequent sections deal with the “operation of community treatment orders” in terms that, first, define the duties and functions of an affected person and a mental health facility and, then, make provision for dealing with a breach of a community treatment order, including engagement of the NSW Police Force in the process of enforcement of a community treatment order.
34. Section 57 is in the following terms:

“57 Duties and functions of affected person and mental health facility (cf 1990 Act, ss 145, 146)

(1) The affected person must comply with the community treatment order.

(2) The director of community treatment of the declared mental health facility implementing a treatment plan under a community treatment order may take all reasonable steps to have medication administered, and services provided, in accordance with the order.

(3) Medication may be administered to an affected person for the purposes of a community treatment order without the person’s consent if it is administered without the use of more force than would be required if the person had consented to its administration.

(4) The director of community treatment of a declared mental health facility implementing a treatment plan under a community treatment order must provide to the affected person particulars of the kind and dosages of medication that are being administered, or have recently been administered, to the person, if requested to do so by—

(a) the affected person, or
(b) any designated carer or the principal care provider of the affected person, or
(c) if the affected person consents, another person who would be entitled to apply for a community treatment order in relation to the person.

(5) A person implementing a treatment plan under a community treatment order may enter the land (but not the dwelling) on which an affected person’s residence is situated without the person’s consent for the purpose of implementing the community treatment order.”

CENTRAL PROVISIONS: Mental Health Act, ss 51 and 53

35. Although the community treatment order under appeal was made by the Tribunal by reference to section 38(5)(b) of the Mental Health Act, the determination that the plaintiff be discharged from the mental health facility where she was then held, accompanied by a community treatment order, may be taken to have been made by reference to sections 51 and 53 of the Act.
36. Sections 51 and 53 are in the following terms (with emphasis added):

“51 Community treatment orders

(1) A community treatment order authorising the compulsory treatment in the community of a person may be made by the Tribunal.

Note—

Section 56 sets out the matters to be included in community treatment orders.

(2) The following persons may apply for a community treatment order for the treatment of a person—

(a) the authorised medical officer of a mental health facility in which the affected person is detained or is a patient under this Act,
(b) a medical practitioner who is familiar with the clinical history of the affected person,
(c) any other person prescribed by the regulations.

(3) An application may be made about a person who is detained in or a patient in a mental health facility or a person who is not in a mental health facility.

(4) An application may be made about a person who is subject to a current community treatment order.

(5) A community treatment order may be made in the following circumstances and may replace an existing order —

(a) following a mental health inquiry,
(b) on a review of a patient by the Tribunal,
(c) on an application otherwise being made to the Tribunal.

(6) Without limiting subsection (5)(c), an application for a community treatment order may be made, and determined by the Tribunal, in the same proceedings as an appeal under section 44 [to the Tribunal against a refusal by a mental health facility to discharge an involuntary patent].

...

53 Determination of applications for community treatment orders

(1) The Tribunal is, on an application for a community treatment order, to determine whether the affected person is a person who should be subject to the order.

(2) For that purpose, the Tribunal is to consider the following—

(a) a treatment plan for the affected person proposed by the declared mental health facility that is to implement the proposed order,
(b) if the affected person is subject to an existing community treatment order, a report by the psychiatric case manager of the person as to the efficacy of that order,
(c) a report as to the efficacy of any previous community treatment order for the affected person,
(d) any other information placed before the Tribunal.

(3) The Tribunal may make a community treatment order for an affected person if the Tribunal determines that—

(a) no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person and that the affected person would benefit from the order as the least restrictive alternative consistent with safe and effective care, and
(b) a declared mental health facility has an appropriate treatment plan for the affected person and is capable of implementing it, and
(c) if the affected person has been previously diagnosed as suffering from a mental illness, the affected person has a previous history of refusing to accept appropriate treatment.

(3A) If the affected person has within the last 12 months been a forensic patient or the subject of a community treatment order, the Tribunal is not required to make a determination under subsection (3) (c) but must be satisfied that the person is likely to continue in or to relapse into an active phase of mental illness if the order is not granted.

(4) The Tribunal may not make a community treatment order at a mental health inquiry unless the Tribunal is of the opinion that the person is a mentally ill person.

(5) For the purposes of this section, a person has a previous history of refusing to accept appropriate treatment if the following are satisfied—

(a) the affected person has previously refused to accept appropriate treatment,
(b) when appropriate treatment has been refused, there has been a relapse into an active phase of mental illness,
(c) the relapse has been followed by mental or physical deterioration justifying involuntary admission to a mental health facility (whether or not there has been such an admission),
(d) care and treatment following involuntary admission resulted, or could have resulted, in an amelioration of, or recovery from, the debilitating symptoms of a mental illness or the short-term prevention of deterioration in the mental or physical condition of the affected person.

(6) The Tribunal must not specify a period longer than 12 months as the period for which a community treatment order is in force.

(7) In determining the duration of a community treatment order, the Tribunal must take into account the estimated time required—

(a) to stabilise the condition of the affected person, and
(b) to establish, or re-establish, a therapeutic relationship between the person and the person’s psychiatric case manager.

(8) The Tribunal may order that the discharge of an involuntary patient for whom a community treatment order is made be deferred for a period of up to 14 days, if the Tribunal thinks it is in the best interests of the patient to do so.

...”

CORE QUESTIONS FOR CONSIDERATION

37. Paragraphs (a) and (b) of section 53(3) lie at the heart of the present proceedings.
38. Their centrality is highlighted by the following features of the factual matrix of the case:

(a) By her solicitor, and personally under oath, the plaintiff accepts that she has a mental illness such as requires that, for the foreseeable future, she be treated with medicine of the type described in the treatment plan attached to the Community Treatment Order under appeal (Olanzapine).

(b) Her objection to the treatment plan is that administration of Olanzapine by depot injection as required by the treatment plan (rather than by oral medication) is unnecessarily debilitating for her, in comparison with a comparable dosage of the same medicine, because:

(i) She suffers more significant side-effects of the medicine when administered in a larger dose by depot injection fortnightly than she suffers when an equivalent smaller dose is administered orally daily; and

(ii) The defendant’s arrangements for administration of depot injections, as well as the volume of drug administered by such injections, unduly interfere with her opportunities for gainful employment.

(c) There is no suggestion that the plaintiff’s complaints about side-effects of a depot injection of olanzapine are fanciful, though the defendant suggests that (in doses of an equivalent size) the side effects of olanzapine should be much the same whether administered orally or by injection; the plaintiff’s response to which is that a larger fortnightly dose is more debilitating for her than a smaller daily dose administered shortly before bedtime when the sedative effect of the drug coincides with her natural sleeping pattern.

(d) The defendant accepts that Olanzapine can be taken orally (daily) as a medical alternative to administration by depot injection (fortnightly), but:

(i) It does not trust the plaintiff to adhere to a programme of self-administered oral medicine; and

(ii) It cannot conveniently administer olanzapine at a time, or in circumstances, to accommodate the plaintiff’s employment opportunities.

(e) At the time of the hearing of the appeal:

(i) The plaintiff maintained that, in compliance with an interlocutory undertaking given by her to the Court as the price of a Court-ordered stay of the Community Treatment Order under appeal, she was routinely taking her prescribed olanzapine tablets orally each night.

(ii) By reference to periodic blood tests of the plaintiff, taken as part of the interlocutory regime that permitted the plaintiff to take her medication orally on a daily basis, the defendant maintains that the plaintiff should be disbelieved when she says she has adhered to the interlocutory regime of a daily dose of medicine taken orally.

(iii) The defendant contended that, if (as it believes) the plaintiff is not taking her daily prescribed medicine in a regular fashion, her mental illness will, at some indeterminate future time, become manifest.

(iv) The plaintiff accepted that, even if not the subject of a Community Treatment Order, it would be in her best interests to continue taking olanzapine under medical supervision.

(v) There was unchallenged evidence to the effect that the plaintiff currently maintains a stable home environment.

(vi) There was no evidence of current aberrant behaviour on the part of the plaintiff.

(vii) The plaintiff presented as a well dressed, well groomed, honest, responsible and rational witness when cross-examined by counsel for the defendant.

(viii) A medical expert called by the defendant as a witness conceded that the plaintiff’s mental illness currently appears to be in remission.

(f) The parties agree that, even if the plaintiff is not the subject of a Community Treatment Order, she can voluntarily continue taking olanzapine orally, as prescribed by a medical practitioner of her choice, with the drug available for purchase under the Pharmaceutical Benefits Scheme administered by the Australian Government.

(g) Interwoven with the parties’ conflict about the practicality and utility of a regime of oral medication as opposed to a regime of depot injections is a conflict about competing considerations of convenience in implementation of the treatment plan.

39. I intend no criticism in recording that the defendant appears to be administratively unable or unwilling (I cannot determine which without collateral enquiries) to accommodate the plaintiff’s perceived need for appointments for her treatment by the defendant to be scheduled on a weekend so that she can optimise her prospects of pursuing gainful employment during weekdays.
40. The plaintiff’s case is, perhaps, unusual because:

(a) As the price of discharge from a mental health facility as an involuntary patient, she consented to her subjection to the community treatment order under appeal; but

(b) As the result of a motor vehicle accident, she was unable conveniently to attend upon the defendant’s clinic to have the fortnightly depot injections for which the community treatment order provides;

(c) With the benefit of private medical advice she, on her own initiative, substituted an equivalent form of daily oral medicine for the fortnightly depot injections required by the community treatment order;

(d) Shortly after that time, she obtained employment in a field for which she has professional qualifications;

(e) If she is compelled to submit to fortnightly depot injections, rather than to continue with her daily oral medication, at times upon which the defendant insists (routinely on a Tuesday), her ability to retain her employment, and to take up fresh employment opportunities, is likely to be placed in jeopardy.

(f) It is common ground that the plaintiff should be encouraged to pursue employment opportunities commensurate with her qualifications if that can be done in a manner consistent with safety for herself and others.

41. No submission has been made by the defendant that the fact that the plaintiff consented to the determination of the Tribunal that she be subjected to a community treatment order precludes her from objecting to the community treatment order on appeal.
42. The nature of the jurisdiction exercised by the Tribunal and the Court - protective of the plaintiff as a mentally ill person - does not readily lend itself to an unexpressed, formal limitation upon consideration of what is, from time to time, required to deal appropriately with the fact of mental illness.
43. It might be otherwise if proceedings were able to be characterised as an abuse of process; but that is not this case. There has been a material change in the circumstances surrounding the making of the community treatment order under appeal in that the plaintiff's mental illness is not currently in an active phase, she has acknowledged the fact of her mental illness and taken steps to provide for her ongoing treatment, and she has secured employment commensurate with her qualifications which could be put at risk by an insistence that she be compelled to submit to fortnightly depot injections.
44. The importance of administrative convenience (on both sides of a treatment plan) is not to be overlooked or discounted. In making a determination under section 53(3) of the Mental Health Act, the Tribunal (and, on an appeal under section 163, the Court) must have regard to the “appropriateness” of a treatment plan “proposed” by a declared mental health facility such as the defendant (pursuant to section 53(2)(a) of the Act) and the facility’s capacity for implementing it, as well as the “appropriateness” and “reasonable availability” of alternative care arrangements.
45. A treatment plan “owned”, if not proposed, by a declared mental health facility is a foundational requirement for the making of a community treatment order. Without such a Plan a community treatment order cannot be made.
46. An inability, or refusal, of a declared mental health facility to own and implement a treatment plan (to paraphrase section 53(3)(b) of the Mental Health Act) other than one “proposed” by it (for the purpose of section 53(2)(a) of the Act) is likely, in practice if not in law, to be fatal to the making of a community treatment order.
47. Whether a declared mental health facility can lawfully veto the making of a community treatment order by a refusal to provide, or to implement, a treatment plan not originally proposed, or later adopted, by it is not a question for determination in these proceedings despite the tenor of submissions made by the defendant to that effect by reference to S v South Eastern Sydney & Illawarra Area Health Service and Anor [2010] NSWSC 178 at [23].
48. There Brereton J made the following observations (with emphasis added):

“[23] The combined effect of s 52(2) (which requires that notice of the application include a copy of “the proposed treatment plan”), s 53(1) (which directs consideration to whether the person should be subject to the order – being the order for which application is made under s 51(2)), s 53(3)(b) (which requires that the tribunal be satisfied that there is “an appropriate treatment plan”), s 54 (which requires that a treatment plan outline in general terms the proposed treatment and in specific terms the method frequency and place at which services would be provided for that purpose – presumably, if the order be made); s 56(1) (which stipulates that a community treatment order nominate the facility that is to implement the treatment plan and requires the affected person to be present to receive treatment provided in accordance with the treatment plan) is that on considering an application for a community treatment order, the tribunal’s role is limited to considering whether such an order should be made in terms of the proposed treatment plan or not at all, and the tribunal is not authorised to make a community treatment order otherwise than in accordance with the treatment plan placed before it by the applicant.”

49. Although I am content to concur in these observations as far as they go, they do not, of themselves, justify a refusal on the part of a declared mental health facility to engage in a process of discussion with the Tribunal (or the Court) and an affected person about the form and content of a treatment plan that might be “appropriate” for the treatment of the affected person in the community. Section 53 does not preclude a mental health facility from proposing, or adopting, as “appropriate” for the purpose of s 53(b) a treatment plan other than that initially “proposed” for the Tribunal’s “consideration” pursuant to section 53(2)(a).
50. The Tribunal must “determine”, inter alia, that a declared mental health facility “has an appropriate treatment plan”. That plan does not have to be the plan “proposed” for “consideration” at the outset of the Tribunal’s deliberations.
51. I do not read Brereton J’s observations as necessarily suggesting otherwise. He did not address the point and, I infer, had no occasion to do so. In terms of his exposition of section 53, a treatment plan can, in my opinion, be “placed before” the Tribunal (in one form or another, with or without amendment of an original plan) at any time before it makes a determination under section 53(3).
52. The word “appropriate” is strategically placed in both section 53(3)(a) and section 53(3)(b) of the Mental Health Act. The absence of the same word in section 53(2)(a) of the Act suggests, to my mind, that the Tribunal (and the Court on appeal from the Tribunal) has a role to play in the formulation of a treatment plan that can be the subject of a determination that satisfies the criteria for which section 53(3) provides.
53. The Tribunal (still less, the Court) is not a rubber stamp for a declared mental health facility. The language of section 53 implicitly contemplates that the Tribunal (and, on appeal, the Court) can, and ordinarily should, engage in a process of consultation leading to the making by the Tribunal of a discretionary determination.
54. A decision made by reference to section 53 (and an “appropriate” treatment plan incorporated in a community treatment order made under section 53) must be informed by the statutory objects of the Mental Health Act, the Act’s statement of principles for care and treatment of a mentally ill person, and the objects of the NSW public health system identified by the Act. The Tribunal (and, in its turn, the Court) is entitled to expect that a declared mental health facility will engage constructively with the process of making a determination under section 53 (which has a quasi-judicial character), informed by considerations other than abstract medical science, requiring the prudential management of risk.
55. That Brereton J was conscious of a need to distinguish between what might be described as an optimal medical solution and the legal criteria for which section 53 provides is apparent from paragraphs [37]-[41] of his judgment (with emphasis added):

“Is the order the least restrictive alternative consistent with safe and effective care (s 53(3)(a))?

[37] While Mr S’s preferred position is that there be no community treatment order at all, his alternative position was that he should be permitted a trial of oral medication in lieu of IMI depot medication.

[38] The same medication (Risperdal) – or an alternative anti-psychotic – can be administered orally by daily doses, rather than fortnightly by injection, producing the same effects. There is nothing to suggest that oral medication is any less effective as a treatment, apart from questions of compliance. For reasons already explained, I am unpersuaded that Mr S would be non-compliant with an oral regime if under the compulsion of a community treatment order. Regular supervision would permit early detection of any deterioration so as to permit prompt intervention to avoid serious relapse. Indeed, on many occasions over the years, when he has been in a state of mental distress, Mr S has brought himself to the attention of the community health team. When something goes awry, he realises there is a problem, even if he cannot articulate it. When he has had relapses, he has frequently self-presented in a community setting or to the emergency department.

[39] That is not to say that oral medication is necessarily the optimal treatment for him. On his own evidence, he appears to experience fewer adverse side effects with the IMI depot medication than with oral medication, and there is impressive evidence that the IMI depot medication works well for him. If the question for me were the medical one of which course of treatment is best suited to his circumstances, I have little doubt that I would conclude that it was fortnightly IMI depot injections of Risperdal Consta.

[40] But that is not the legal question: to uphold the community treatment order, I must be satisfied that no other care of a less restrictive kind consistent with safe and effective care is appropriate and reasonably available, and that Mr S would benefit from the order as the least restrictive alternative consistent with safe and effective care. “Appropriate and reasonably available” treatment does not connote the very best treatment. So long as the alternative is appropriate and reasonably available and is consistent with safe and effective care, it matters not that it may not be the most desirable course of treatment. In my view, a treatment plan that afforded Mr S the option of oral or IMI depot medication - together with regular (say monthly) supervision and review in a mental health facility to monitor his condition, welfare and compliance – is appropriate (though perhaps not optimal) and reasonably available, would be a less restrictive alternative to one providing only for IMI depot medication, and would be consistent with safe and effective care.

[41] It follows that I am not satisfied that the particular community treatment order that was made is the least restrictive alternative consistent with safe and effective care.”

56. It is sufficient, in these proceedings, to note that the defendant’s refusal to entertain any form of treatment plan that provides otherwise than for treatment of the plaintiff by depot injection as and when determined by a “treating doctor” nominated by it (without regard to the convenience of the plaintiff) is an impediment to the community treatment order under appeal remaining on foot.
57. In the course of the hearing of the plaintiff’s appeal, the defendant manifested an inability or refusal to arrange for its treatment of the plaintiff (including, particularly, the administration of depot injections and the testing of blood as a means of monitoring compliance with a regime of oral medication) on a weekend, or at such other times designed to cater for employment opportunities that became available to the plaintiff following her discharge from a mental health facility on 11 November 2021.
58. Under the community treatment order under appeal, as implemented by the defendant (exercising the discretions available to it under the treatment plan incorporated in the community treatment order) the plaintiff has been required, and would be likely in the future to be required, for the convenience of the defendant, to submit to a depot injection on a Tuesday. When under interlocutory arrangements made during the course of her appeal, the plaintiff undertook to submit to weekly blood tests, she was, and is, required by the defendant, to submit to those tests on a Friday.
59. The administration of a depot injection on a Tuesday not only occupies a substantial part of that day but, because of the side effects of the administration of a large doze of olanzapine, interferes with the plaintiff’s capacity for paid employment for one or more following days.
60. Although the defendant agrees that her engagement in paid employment has therapeutic benefits for the plaintiff, and is indicative of her better insight into her condition than was formerly the case, it is unable or unwilling to accommodate its treatment of her to the pattern of a normal working life. For whatever reason, it privileges its administrative convenience over the convenience of the plaintiff, if not (unwittingly) also her wellbeing. This does not sit comfortably with the statutory objects of the Mental Health Act, the Act’s statement of principles for care and treatment of a mentally ill person, or the objects of the NSW public health system identified by the Act.
61. Decisions made about the content and viability of a treatment plan involve an element of risk management in the treatment of an affected person, informed by past experience but necessarily focused upon the present and an unknown future. A reflection of that reality can be seen in section 53(3)(c) and, in the factual setting of the present proceedings, section 53(3A).
62. In the nature of a community treatment order is an element of coercion, reinforced by subjection of an affected person to discretionary decision-making by public officials charged with implementing a treatment plan. Nevertheless, the efficacy of a community treatment order may depend upon the existence or otherwise of a rapport between a treating doctor (and others working with the treating doctor) and the affected person. The Mental Health Act recognises that, inter alia, in its recognition of the purposive nature of its regulatory regime.

THE PURPOSIVE NATURE OF THE PRESENT PROCEEDINGS.

63. The provisions of the Mental Health Act 2007 governing the making, and operation, of a community treatment order are informed by sections 3, 68, 105 and 195 of the Act.
64. Those sections are in the following terms (with emphasis added):

“3 Objects of Act

The objects of this Act are—

(a) to provide for the care and treatment of, and to promote the recovery of, persons who are mentally ill or mentally disordered, and

(b) to facilitate the care and treatment of those persons through community care facilities, and

(c) to facilitate the provision of hospital care for those persons on a voluntary basis where appropriate and, in a limited number of situations, on an involuntary basis, and

(d) while protecting the civil rights of those persons, to give an opportunity for those persons to have access to appropriate care and, where necessary, to provide for treatment for their own protection or the protection of others, and

(e) to facilitate the involvement of those persons, and persons caring for them, in decisions involving appropriate care and treatment.

Note—

See also section 68 which contains principles for care and treatment and section 105 which sets out objectives for the New South Wales public health system.

...

68 Principles for care and treatment

It is the intention of Parliament that the following principles are, as far as practicable, to be given effect to with respect to the care and treatment of people with a mental illness or mental disorder—

(a) people with a mental illness or mental disorder should receive the best possible care and treatment in the least restrictive environment enabling the care and treatment to be effectively given,

(b) people with a mental illness or mental disorder should be provided with timely and high quality treatment and care in accordance with professionally accepted standards,

(c) the provision of care and treatment should be designed to assist people with a mental illness or mental disorder, wherever possible, to live, work and participate in the community,

(d) the prescription of medicine to a person with a mental illness or mental disorder should meet the health needs of the person and should be given only for therapeutic or diagnostic needs and not as a punishment or for the convenience of others,

(e) people with a mental illness or mental disorder should be provided with appropriate information about treatment, treatment alternatives and the effects of treatment and be supported to pursue their own recovery,

(f) any restriction on the liberty of patients and other people with a mental illness or mental disorder and any interference with their rights, dignity and self-respect is to be kept to the minimum necessary in the circumstances,

(g) any special needs of people with a mental illness or mental disorder should be recognised, including needs related to age, gender, religion, culture, language, disability or sexuality,

(g1) people under the age of 18 years with a mental illness or mental disorder should receive developmentally appropriate services,

(g2) the cultural and spiritual beliefs and practices of people with a mental illness or mental disorder who are Aboriginal persons or Torres Strait Islanders should be recognised,

(h) every effort that is reasonably practicable should be made to involve persons with a mental illness or mental disorder in the development of treatment plans and recovery plans and to consider their views and expressed wishes in that development,

(h1) every effort that is reasonably practicable should be made to obtain the consent of people with a mental illness or mental disorder when developing treatment plans and recovery plans for their care, to monitor their capacity to consent and to support people who lack that capacity to understand treatment plans and recovery plans,

(i) people with a mental illness or mental disorder should be informed of their legal rights and other entitlements under this Act and all reasonable efforts should be made to ensure the information is given in the language, mode of communication or terms that they are most likely to understand,

(j) the role of carers for people with a mental illness or mental disorder and their rights under this Act to be kept informed, to be involved and to have information provided by them considered, should be given effect.

...

105 Objectives of New South Wales public health system (cf 1990 Act, s 6)

The objectives of the New South Wales public health system under this Act in relation to mental health services are to establish, develop, promote, assist and encourage mental health services that—

(a) ensure that provision is made for the care, treatment, control and rehabilitation of persons who are mentally ill or mentally disordered, and

(b) promote the establishment of community mental health services for the purpose of enabling the treatment in the community wherever possible of persons who are mentally ill or suffering from the effects of mental illness or who are mentally disordered, and

(c) develop, as far as practicable, standards and conditions of care and treatment for persons who are mentally ill or mentally disordered that are in all possible respects at least as beneficial as those provided for persons suffering from other forms of illness, and

(d) take into account the various religious, cultural and language needs of those persons, and

(e) are comprehensive and accessible, and

(f) permit appropriate intervention at an early stage of mental illness, and

(g) assist patients to live in the community through the provision of direct support and provide for liaison with carers and providers of community services.

...

195 Role of objects provisions

The provisions of sections 3, 68 and 105 are intended to give guidance in the administration of this Act and do not create, or confer on any person, any right or entitlement enforceable at law.”

APPEAL PROCEDURES

65. Although section 67 of the Mental Health Act provides specifically for a limited form of appeal to the Supreme Court from a community treatment order made by the Tribunal, section 163 of the Act, in company with section 164, provides a right of appeal expressed in more general terms. The parties agree that the present proceedings constitute an appeal under section 163 rather than section 67.
66. Sections 163 and 164 are in the following terms (with emphasis added):

“163 Appeals to the Court (cf 1990 Act, s 281)

(1) A person may appeal to the Court against—

(a) a determination of the Tribunal made with respect to the person, or
(b) the failure or refusal of the Tribunal to make a determination with respect to the person in accordance with the provisions of this Act.

(2) An appeal is to be made subject to and in accordance with the rules of the Court.

164 Power of the Court on appeals (cf 1990 Act, ss 283, 284)

(1) The Court has, for the purposes of hearing and disposing of an appeal, all the functions and discretions of the Tribunal in respect of the subject- matter of the appeal, in addition to any other functions and discretions it has.

(2) An appeal is to be by way of a new hearing and new evidence or evidence in addition to, or in substitution for, the evidence given in relation to the determination of the Tribunal, or the failure or refusal of the Tribunal to make a determination, in respect of which the appeal is made may be given on the appeal.

(3) The Court is to have regard to the provisions of this Act and any other matters it considers to be relevant in determining an appeal.

(4) The decision of the Court on an appeal is, for the purposes of this or any other Act or instrument, taken to be, where appropriate, the final determination of the Tribunal and is to be given effect to accordingly.

(5) In hearing and deciding an appeal, the Court may be assisted by 2 assessors selected by the Court from the panel nominated for the purposes of this Chapter, if the Court considers it appropriate to do so.

(6) An assessor is to sit with the Court in the hearing of an appeal and has power to advise, but not to adjudicate, on any matter relating to the appeal.”

67. In deference to section 162 of the Mental Health Act (which, on terms, proscribes publication of the name of a person to whom a matter before the Tribunal relates), the plaintiff is identified in these proceedings by the pseudonym “T”.
68. Although section 164 empowers the Court to enlist the assistance of “assessors” (from a panel established pursuant to section 165 of the Act) the parties to the present proceedings disclaimed any need for an assessor and, in my opinion, the questions for the Court’s determination do not require the assistance of an assessor. To the extent that medical evidence may be of assistance to the Court, the defendant has adduced such evidence in support of its case for the continued operation of the community treatment order under appeal.
69. Because the appeal takes the form of a “new hearing”, the defendant accepted the forensic onus of persuading the Court that the community treatment order under appeal be continued: Z v Mental Health Review Tribunal [2015] NSWCA 373 at [7], [173]-[174] and [181]; S v South Eastern Sydney and Illawarra Area Health Service [2010] NSWSC 178 at [22].
70. In conferring upon the Court jurisdiction under section 163 to entertain an appeal from the Tribunal, the Mental Health Act acknowledges that the Court has powers that include, but are not limited to, the powers of the Tribunal, a statutory entity confined to powers conferred upon it, and governed, by legislation.
71. This can be seen, particularly, in the terms of section 164(1). For the purpose of hearing and disposing of an appeal, the Court has “all the functions and discretions of the Tribunal in respect of the subject-matter of the appeal”, an expression which (in the context of an appeal against a community treatment order) includes the Tribunal’s power under section 65(1) of the Mental Health Act. The concluding words of section 164(1) - “in addition to any other functions and discretions [the Court] has”- explicitly recognise that the Court has powers additional to those of the Tribunal. Those powers include, for example, a power to make orders on terms (CPA, section 86) and powers to give such judgment or to make such orders as the nature of a case requires (CPA section 90; UCPR rule 36.1).
72. That the Court has a broader remit than the Tribunal is confirmed, more obliquely than appears in section 164(1), by other provisions of the Mental Health Act. Section 163(2) provides that an appeal under the section is “to be made subject to and in accordance with the rules of the Court”. Section 164(3) directs the Court to have regard to the provisions of the Mental Health Act “and any other matters it considers to be relevant in determining an appeal”. Section 164(4) provides that the decision of the Court on an appeal is to be taken to be “where appropriate” a final determination of the Tribunal.
73. Section 167 expressly records that the chapter of the Act that confers statutory jurisdiction on the Court does not “[derogate] from or otherwise [affect] the jurisdiction of the Court under any act or other law”, thus acknowledging the inherent and statutory protective jurisdiction of the Court.
74. Save possibly in an exceptional case (of a type recognised in J v Lieschke [1987] HCA 4; (1987) 162 CLR 447 at 456-457 where Brennan J recognised that an overly strict application of a requirement for procedural fairness might, in an exceptional case, frustrate an exercise of protective jurisdiction), any exercise by the Court of its powers requires that it afford procedural fairness to the parties to an appeal under section 163 of the Mental Health Act.
75. The point made, for present purposes, is that the powers of the Court are not limited, as the defendant would have it, simply to allowing or dismissing the plaintiff’s appeal.

THE FACTUAL MATRIX

76. There is no dispute between the parties, and I accept, that the plaintiff is in need of medical treatment for mental illness and that a regular dose of olanzapine, as prescribed for her in implementation of the community treatment order under appeal, is appropriate, subject to review from time to time.
77. The dispute between the parties is, in essence, whether the plaintiff can be trusted to take her medication if permitted to do so by means of unsupervised daily oral tablets instead of institutionally administered fortnightly depot injections.
78. The defendant’s scepticism about the reliability of the plaintiff to take daily doses of her medication (and about the verifiability of any arrangement for self-administered medication) has a reasonable foundation in the nature of the plaintiff’s mental illness and the history of her engagement with public authorities concerned about her mental health.
79. The defendant has placed before the Court primary records (dating from 29 November 2013) which provide an objective foundation for findings that the plaintiff suffers from mental illness (a delusional disorder or a schizoaffective disorder); has a continuing need for medical treatment; and is a risk to her own safety, and perhaps the safety of others, if she does not maintain a correct medical treatment regime.
80. The plaintiff has a history of engagement with the Tribunal since, on 18 December 2013, it made a determination under section 35 of the Mental Health Act that she was a mentally ill person who was required to be detained in, or admitted and detained in, the mental health unit of a public hospital for further observation or treatment, or both, as an involuntary patient.
81. The primary records relied upon by the defendant are largely reproduced in a Court Book, the contents of which are summarised in an index (MFI D7) and summarised in an attachment to the defendant’s written submissions filed 27 May 2022 (MFI D6). The primary material has been presented to the Court by the defendant in a chronological order that highlights the character, duration and recurrence of the plaintiff’s mental illness.
82. Although, in fairness to the plaintiff, it should be remarked that the primary documents suggest that she has developed some insight into her medical condition, the dominant portrayal of her in those documents is that of a mentally ill person who has a history of resistance to treatment.
83. A selection of extracts from the primary documents is sufficient to demonstrate the nature of the plaintiff’s illness.
84. On 1 March 2021 a psychiatrist recorded having observed the following facts indicative of mental illness (with editorial adaptation):

“[The plaintiff] has an existing diagnosis of delusional disorder and was treated with depot paliperidone and a CTO [community treatment order]. She is currently delusional, believing that her ex-husband is sexually abusing her son [one of two sons] and that he is being groomed to join ISIS [a terrorist organisation]. She is in custody for breaching the AVO [apprehended violence order] against him [her 18 year old son] and for harassing police who she believes are not acting on her concerns. She is insightless and refusing medication.“

85. On 6 April 2021 a report presented by Department of Health psychiatrists included the following extracts (with editorial adaptation):

“MENTAL STATE EXAMINATION

[The plaintiff] presented as a middle aged female of average build, with black hair pulled back into a ponytail. She was pressured in speech, but this was interruptible. She was circumferential and used veiled threats of making formal complaints if medication was given to her. Her thought form was tangential and disordered when discussing her psychotic symptoms. She used pseudo-legal language as if in Court to argue her case. She appeared irritable and angry.

Her mood appeared labile and elevated although subjectively she reports she feels good. She reported she was suicidal, but only if she was prescribed medication. She was able to guarantee her safety and later retracted this statement.

Her thought content consisted of a belief that police were involved in a paedophile ring covering up sexual abuse by her husband, police and senior government officials. She was fixed in these beliefs and gained this information from an unnamed person from ASIO [Australia’s security organisation]. She also believed a fellow patient had been planted on the ward [of the forensic hospital in which she was then detained] to harm her in order to stop her telling others about the paedophile ring. She denied perceptual changes. Her cognition was grossly intact. Her insight was poor, as she refused to consider alternative reasons for her beliefs and denied medication and that she had a mental illness. Her judgement was impaired, especially in relation to decisions regarding her treatment and care. ...

OPINION AND RECOMMENDATIONS

A PSYCHIATRIC ISSUES

1 Psychiatric Diagnosis

...

2 Risk Formulation including risk factors for Violence

The treating team are in the process of completing a formal risk assessment but there does seem to be some areas of concern in her [that is, the plaintiff’s] history such as prior assault charges, carrying offensive implements and of causing significant harm to others – arising in part from her delusional beliefs.

It appears she is litigious and uses organisational complaints systems to further her believes [sic].

She poses a relational security risk on the ward.

She has threatened suicide attributing this to the prescribed medication.

A more thorough risk formulation will be made available at future hearings [of the Tribunal].

3 Treatment issues

3.1 Biological

[The plaintiff] requires treatment with antipsychotic medication in order to be treated for her mental illness. She has been refusing medications. She will likely need a depot in the future. ...”

86. A psychology report dated 6 September 2021 prepared for the Tribunal included the following observations (editorially adapted):

“PSYCHOLOGY REPORT

Therapeutic engagement:

[The plaintiff] has engaged very well with both 1:1 and group intervention. She regularly attends the weekly unit Acceptance Commitment Therapy Group as well as Recovery Poetry Group. Individual sessions have initially focused on coping with involuntary treatment, developing rapport, collection of auto-biographical information and undertaking a range of assessments. Aside from one incident of rupture, [the plaintiff] has regularly attended when asked, engaged enthusiastically and has reported benefit from some of the skills she has been learning. It should be noted that during 1:1 sessions, [the plaintiff] has expressed, but not been directly challenged on beliefs which are assumed to be part of her psychotic illness. [The plaintiff] is highly sensitive to suggestion that she may be unwell and initial stages of treatment have focused on ways to manage the distress caused by this disagreement. ...

Stalking risk assessment

Summary and Formulation

...

[The plaintiff] is a 44 year old woman currently admitted to the [Forensic Hospital] as an involuntary civil patient. She had been remanded into custody in 2020 following breach of bail conditions on charges of stalking and intimidation and harassment of [a police officer] in the execution of duty. Her admission to the forensic hospital occurred in March 2021 following refusal to accept treatment while in prison on remand. At the time she had been diagnosed with a delusional disorder.

It is clear from file information that [the plaintiff] has a history of conflict with others. She has engaged in problematic patterns of behaviour which fall under the rough description of ‘stalking, intimidation, harassment’. This behaviour appears to be driven mostly by trait based psychological/personality factors. The presence of major mental illness, predominantly a psychotic illness, is also causally related to the problematic patterns of behaviour.

[The plaintiff’s] ability to present well when unwell, to confuse professionals with an array of information, and to challenge and threaten those who disagree with her hinders attempts to form a fact based formulation of the problem behaviour. She also has a tendency to regress into fantasy as a way of coping when faced with evidence or reality testing. [The plaintiff] has historically presented well during interviews. Rarely has she presented with formal thought disorder, she is generally articulate, engages well, and demonstrates well developed debating skills. She has a good memory of dates and facts and the ability [to] organise thoughts and express herself well. She is behaviourally contained, and while she can express her opposition, she does not act in an aggressive manner and is compliant with staff direction and unit rules. Only when her narrative is challenged, goals thwarted or when her delusional and fantastical thinking is called into question does the fragility of her ego become apparent and interpersonal problems arise. [The plaintiff] is also able to maintain belief in her delusional and fantastical perspective during contact with her long-time acquaintance [her support person, who attended the hearing of her appeal]. [He] will agree with or confirm any suspicion [the plaintiff] raises. In this way she abrogates responsibility for the belief which may be delusional. Lack of information about [J] makes his role in [the plaintiff’s] pathology difficult to establish – which may range from simply colluding to maintain peace in the presence of ‘folie a deux’.

While [the plaintiff] presents well, a thorough review of the current admission [to her Forensic Hospital], and file information – particularly the NSW police file– indicates the presence of a psychotic illness (delusional thinking most likely a symptom of schizophrenia) and patterns of behaviour and interpersonal functioning which are highly destructive, including stalking and harassment, and which indicate the presence of personality. The overlap of episodic psychotic phenomena with aversive trait based patterns of behaviour and emotional functioning make it difficult to establish a causal narrative.

Despite her mostly settled presentation [the plaintiff] exhibits a pattern of pathological functioning as characterised by the following.

Diagnostic considerations:

• psychotic illness

• narcissistic PD traits

• antisocial PD traits (including psychopathic)

• substance use disorder (potentially in remission)

• trauma reaction/significant events shaping behaviour – domestic violence; death of father during argument; kidnapping of sons in infancy; failure to provide basics of care/neglect/removal of sons from her care

Individually and in combination, the effect of these diagnoses have led to

• a pattern of stalking and harassment behaviour

• a pattern of vindictive vengeful retribution

• lack of stability

• a pattern of fraud and seeking of compensation (unproven)

The result of which is a personal history characterised by an inability to establish stability in lifestyle or relationships.”

87. A report dated 1 November 2021 addressed by Department of Health doctors to the Tribunal for its hearing on 11 November 2021 concluded with the following observations, under the heading “Legal Issues” (with editorial adaptation):

a) [The plaintiff] suffers from schizoaffective disorder. This is a mental illness. This condition it is a psychotic disorder presenting with a circumscribed delusional belief system and lability of mood. This disturbance of [the plaintiff’s] thoughts and mood is significant and impairs [her] mental functioning. [She] satisfies the criterion for being mentally ill as defined by section 14 of the Mental Health Act 2007. Care, control and treatment are necessary as she presents a risk of serious harm to other’s psychological well-being, particularly that of the police officers that she has targeted in the past. She is also a risk of serious harm to herself via misadventure as if she contacts these police officers she will likely receive further charges and possible custodial sentences. [She] is currently an involuntary civil patient.

b) [The plaintiff] has two AVO’s against her in relation to [a police officer] (active) and her son ... (recently expired).

c) [The plaintiff] has had an eight month admission to the Forensic Hospital, first as a correctional transfer, then as a civil patient. She has not engaged in violent behaviour on the ward. The systemic covid situation has hampered recovery efforts but [she] has benefited from in patient admission. However, she has now plateaued on what can be offered given the restrictions within the forensic hospital. [A named institution] does not take civil patients and there have been ongoing systemic challenges accessing civil inpatient rehabilitation beds. It is likely [the plaintiff] would be too high functioning for them. Hence, in acknowledging the principle of least restriction [the plaintiff] is able to continue her recovery in the community with a wraparound community support system. As part of this the treating team respectfully request a community treatment order be made for [the plaintiff’s] ongoing care in the community and to manage her risks in the community. ...”

88. As has been earlier noted, when the Tribunal met on 11 November 2021 it acted on this recommendation and made the community treatment order presently under appeal.
89. Before she instituted her appeal, the plaintiff applied unsuccessfully to the Tribunal to vary her community treatment order. On 31 March 2022 she presented to the Tribunal a formal application to vary the community treatment order to provide for “medication to be changed from 405mg [depot injection] of olanzapine to 30mg oral tablets each night”.
90. Section 65 of the Mental Health Act, pursuant to which that application was made, is in the following terms:

“65 Variation or revocation of orders by Tribunal (cf 1990 Act, s 148)

(1) The Tribunal may vary or revoke a community treatment order, on application being made under this section or at any time on its own motion.

(2) An application may be made by any of the following—

(a) the affected person,

(b) the psychiatric case manager of the affected person,

(c) any person who could have applied for the order.

(3) An application may be made only if—

(a) there has been a substantial or material change in the circumstances surrounding the making of the order, or

(b) relevant information that was not available when the order was made has become available.

(4) An order may be varied only if the order, as varied, could be made in relation to the affected person.

(5) The regulations may make provision for or with respect to applications under this section and the orders that may be made by the Tribunal.”

91. In support of her application the plaintiff presented a signed statement which included the following observations:

“ ... I have been the subject of a community treatment order since 11 November 2021. I have been compliant with the order since it’s [sic] creation, almost five months ago. I have been required to be injected with intramuscular 405mg olanzapine depot every fortnight. I have received these injections until 22 February 2022.

On 26 February 2022, I was involved in a motor vehicle accident, where a truck has hit my car at high speed. As a result of that accident, I sustained injuries to my spine and consequently, I am unable to sit for greater than 15 minutes.

The olanzapine injection requires the patient to be monitored for 2-3 hours after the injection. This was not possible for me to do, due to the limitations as set out in writing by my treating physiotherapist. The mental health team was advised of this and provided a copy of his letter which I have attached to this application.

In order to accommodate my injuries, the community mental health team commenced me oral olanzapine, 30mg per night, from the 7th of March 2022. I have been compliant with this medication and the mental health team have done checks on my medication to ensure compliance.

In the meantime, I have been successful in a job application for the role of ... . This position is permanent and full time. I am due to commence this role on 25th April 2022.

This position would not allow for me to be recommenced on the depot injection of olanzapine, due to the fact that the olanzapine clinic runs every second Tuesday and requires me to attend for three hours, plus travel. Furthermore, you cannot drive for 24 hours after the injection, so I would be unable to work every second Tuesday and Wednesday as well. Continuing the oral medication would allow me to attend work on a fulltime basis.

On Monday 28th of March 2022, I met my treating psychiatrist, who has advised me that the oral medication cannot continue and that I needed to choose between intramuscular injections of paliperidone, aripiprazole or olanzapine. The paliperidone and aripiprazole have both been prescribed to me previously on separate occasions and both medications were ceased due to the suicidal ideations it induced in me.

At no time have I ever ceased any medication without the guidance and supervision of a psychiatrist. I hereby ask that the tribunal consider my request to remain on the oral olanzapine medication, as this would allow me to be gainfully employed within the community and medicated with the prescribed medication, without interfering with my spinal injuries or my employment”.

92. The letter of the plaintiff’s physiotherapist (dated 23 March 2022) was in the following terms (with editorial adaptation):

“This is to certify that [the plaintiff] attended physiotherapy on 23-03-22 and presented with the acute cervical, lumbar, right shoulder, bilateral knee and right ankle injuries in relation to a motor vehicle accident.

This is to certify that [the plaintiff] should avoid prolonged sitting/standing/walking > 10-15 mins to prevent further exacerbations of her current symptoms. ...”

93. The Tribunal appears not to have entertained the plaintiff’s section 65 application. Instead, she received an email from an officer of the Tribunal’s registry (dated 31 March 2022) the terms of which included the following:

“ ... Thank you for your application form and accompanying correspondence. Please be advised, however that the tribunal is not able to review consumer applications to ‘vary’ CTO medications.

If you have concerns about the medication prescribed to you as part of your CTO, you should discuss these with your case manager, treating doctor or psychiatrist at Campbelltown Mental Health Service. The Tribunal is not able to review consumer applications to ‘vary’ CTO medications. Changes to CTO medications can only be considered by the Community Team in consultation with their treating team.

Please note that the Mental Health Act 2007 does allow for an application for revocation of a community treatment order to be made to the Tribunal but only if:

a) There has been a substantial or material change in the circumstances surrounding the making of the order, or

b) relevant information not available when the order was made has become available.

Before the Tribunal can consider any application to revoke a CTO, evidence to satisfy the above criteria needs to be provided together with a completed application form. You may wish to consult your general practitioner (GP) to seek a referral to a professional, to discuss the provision of this evidence. I am aware that Medicare fund a mental health plan and the GP may consider you eligible for that programme.

If you believe the Tribunal made the wrong decision in making the original community treatment order then you may have a right of appeal to the Supreme Court of NSW. You would need to obtain independent legal advice if you were considering lodging an appeal. You may be eligible to receive legal aid through the mental health Advocacy Service subject to a merits test. The mental health advocacy service can be contacted on the following telephone number: ... ”

94. In its assumption that the plaintiff’s application was for an order that the community treatment order presently under appeal be revoked, the Tribunal’s response was unresponsive. It did not address her application for an order that the community treatment order be varied. Nor did it acknowledge that, as an affected person, the plaintiff had standing to make an application for the community treatment order to be varied. Although it referred to the criteria identified in section 65(3), it did not address the facts underlying the plaintiff’s application. Nor did it address the question whether the community treatment order, if varied as proposed, “could be made in relation to the affected person”: section 65(4).
95. The Tribunal registry appears to have acted upon the same understanding of the nature of a community treatment order advanced by the defendant in these proceedings in support of an order that the plaintiff’s appeal be dismissed. A common assumption of the Tribunal’s registry and the defendant appears to be that, once of community treatment order is made (expressly or implicitly in terms that confer a discretion upon an affected person’s treating doctor) any variation of treatment must be left to the treating doctor, without independent review during the operation of the order.
96. Section 65 of the Mental Health Act is, in terms, inconsistent with such an understanding of a community treatment order. It provides a statutory authority for the Tribunal to review a community treatment order. It cannot be read down, or glossed, by reference to a common practice of conferring discretionary authority on a treating doctor. The Tribunal retains a power, recognised in section 65, to supervise the operation of a community treatment order. And, in an exceptional case, the Court retains a power to intervene with the operation of a community treatment order upon exercise of its inherent, protective jurisdiction preserved by s 167 of the Mental Health Act and not otherwise abrogated.
97. The nature of the Court’s inherent, protective jurisdiction (sometimes described as its parens patriae jurisdiction) is explained in Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) [1992] HCA 15; (1992) 175 CLR 218 at 258 (with editorial adaptation):

“The history of [the parens patriae jurisdiction] was discussed at some length by La Forest J in Re Eve 1986 CanLII 36 (SCC); (1986) 2 SCR 388 at 407-417; 1986 CanLII 36 (SCC); (1986) 31 DLR (4th) 1 at 14-21. His Lordship pointed out [at SCR 410; DLR 16] that ‘[the] Crown has an inherent jurisdiction to do what is for the benefit of the incompetent. Its limits (or scope) have not, and cannot, be defined.’ In Wellesley v Duke of Beaufort [(1827) [1827] EngR 268; 2 Russ 1 at 20; 38 ER 236 at 243], Lord Eldon LC, speaking with reference to the jurisdiction of the Court of Chancery, said:

‘[It] belongs to the King, as parens patriae, having the care of those who are not able to take care of themselves, and is founded on the obvious necessity that the law should place somewhere the care of individuals who cannot take care of themselves, particularly in cases where it is clear that some care should be thrown round them.’”

98. As was recognised in Re Eve (at SCR 414 and 427; DLR 19 and 29), although the jurisdiction has a theoretically unlimited scope, it must be exercised in accordance with its underlying principle: the Court is required to do what is necessary for the protection of the person for whose benefit it is exercised, not for the benefit of others. The Court’s discretion that must be exercised with a caution commensurate with the business under consideration.
99. In Re Eve the Canadian Supreme Court also recognised that the jurisdiction is not readily taken as excluded by legislation, but where legislation prescribes procedures for dealing with an incapable person, the Court will generally confine an exercise of its jurisdiction to uncontemplated situations where it appears necessary to do so for the protection of the incapable person or other exceptional circumstances: SCR 411 and 426; DLR 17 and 28. Local authorities to similar effect are Re Victoria [2002] NSWSC 647; 29 Fam LR 157 at [37]- [40] and Re Frieda and Geoffrey [2009] NSWSC 133; 40 Fam LR 608.
100. There is no necessity in these proceedings to invoke the Court’s inherent, protective jurisdiction given the nature of an appeal under section 162 of the Mental Health Act and the fact that, on the evidence before the Court, the plaintiff’s mental illness is not presently in an active phase. Care nevertheless needs to be taken in disposition of the appeal to have regard to the possibility that, if the plaintiff’s mental illness were to enter an active phase without appropriate arrangements for her ongoing care, her safety and the safety of others might be at risk.
101. Although the plaintiff’s amended summons is expressed in terms of an application for revocation (or, in the alternative, variation) of the community treatment order made on 11 November 2021, it might have been framed (as an appeal or on administrative law grounds) as a challenge to the Tribunal’s refusal to entertain an application for variation of the community treatment order.
102. In so far as the amended summons invites the Court to make an order varying the community treatment order under appeal it seeks an order “to restrict the treatment of the plaintiff so as not to include intramuscular injections of an anti-psychotic drug including olanzapine and to provide for oral anti-psychotic medication in lieu thereof.”

THE COURSE OF THE APPEAL PROCEEDINGS

103. The proceedings in this Court were commenced by a summons filed on 10 May 2022 at which time, upon an ex parte application by the plaintiff, I made the following notation and orders:

(1) NOTE that the plaintiff gives to the Court the following undertakings:

(a) the usual undertaking as to damages; and

(b) an undertaking that she will continue taking oral Olanzapine, 30 mg per night, medication as prescribed by the defendant unless the Court otherwise orders or she has given 24 hours’ notice in writing to the defendant of her intention to cease taking that medication.

(2) UPON those undertakings to the Court:

(a) ORDER, subject to further order, that the defendant by itself, its servants or agents be restrained from administrating an intramuscular injection of Olanzapine to the plaintiff without the prior leave of the Court or the written consent of the plaintiff.

(b) ORDER, subject to further order, that the defendant by itself, its servants or agents be restrained from communicating to [the plaintiff’s employer] personal information relating to the plaintiff without the prior leave of the Court or the written consent of the plaintiff.”

104. On the return of the summons the next day (11 May 2022) I made notations to the following effect:

(1) NOTE the concerns expressed by the defendant about the health, and risks associated with the health of the plaintiff, as recorded particularly in a Forensic Hospital Discharge Summary in respect of a discharge of the plaintiff on 11 November 2021.

(2) NOTE that the parties are to explore the possibility of an interlocutory (without admissions) regime which would involve the plaintiff being supervised by [a son of the plaintiff living with her] in the regular taking of oral medication and her submission to regular blood tests as required by the defendant.

(3) NOTE the Court encourages the parties through their respective legal representatives to engage in discussions about what might be achievable as an interlocutory regime.

105. On the next occasion the proceedings came before the Court (on 16 May 2022) I made notations to the following effect:

(1) NOTE that the plaintiff confirms the undertakings to the Court given by her on 10 May 2022.

(2) NOTE that the plaintiff gives to the Court a further undertaking that she will (at Liverpool Hospital or such other place as the parties may in writing agree) submit to administration to her of a blood test (to monitor her administration of Olanzapine) once a week, commencing on Friday 20 May 2022 and continuing every Friday thereafter (or at such other times as may be agreed in writing between the parties), subject to any further orders of the Court.

(3) NOTE that the defendant agrees with the plaintiff that, in order to facilitate the plaintiff’s compliance with the undertaking recorded in paragraph 2 of these orders, the defendant will cause to be emailed to the plaintiff, in a timely manner, a referral to a pathologist to permit testing of the plaintiff’s blood.

(4) NOTE that on the undertakings given to the Court by the plaintiff on 10 May 2022, and today, the injunctions granted by the Court on 10 May 2022 continue in operation.”

106. Directions having been given, and complied with, for preparation of the proceedings for a hearing, on 16 June 2022 I made a notation and orders to the following effect:

(1) NOTE that the parties inform the Court that these proceedings are ready for the allocation of a hearing date but that, because of the earlier unavailability of [Dr S], they seek a hearing date not earlier than 25 July 2022.

(2) ORDER, subject to further order, that the proceedings be listed before Lindsay J at 10 am on 25 July 2022 for hearing.

(3) RESERVE to the parties liberty to apply to the Protective List Judge (Lindsay J) in the meantime.”

107. The hearing of the appeal commenced on 25 July 2022 and proceeded on that day to the point that the parties required additional time to make final submissions.
108. As events transpired, Dr S was (by reason of illness) unable to attend the hearing. Her absence was unfortunate. The Court had the benefit of an affidavit sworn by her, but no opportunity to see her cross-examined or, perhaps more importantly, to engage with her personally about her assessment of the plaintiff.
109. Oral submissions were received on 5 August 2022, at the conclusion of which I made the following order and notation:

(1) ORDER that each party file and serve no later than 12 August 2022, if so advised, a draft form of treatment plan predicated upon rejection of their primary submission, on each side of the case.

(2) NOTE that, subject to consideration of such draft plans, judgment is reserved.

110. On 10 August 2022, the solicitor for the plaintiff provided to the Court a draft form of treatment plan predicated upon rejection of the plaintiff’s primary submission that the community treatment order under appeal should be revoked.
111. That draft plan was in terms to the following effect:

“PLAINTIFF’S PROPOSED

LESS RESTRICTIVE CARE TREATMENT PLAN

RE [THE PLAINTIFF]

TREATING PSYCHIATRIST:

A new psychiatrist to be allocated by South Western Sydney Local Health District to replace [Dr S].

GOALS OF TREATMENT:

• The goal of this treatment plan is to better control symptoms of mental illness using medication, counselling, education, and promoting improved mental health in the least restrictive environment that is consistent with safe and effective care.

• This will allow [the plaintiff] to establish connections in the community via planned social activities and to continue in paid work.

• This will enable [the plaintiff] increased independence of taking medication and increased responsibility for taking oral medication with a view to discharge from the Community Treatment Order.

RESPONSIBILTIES OF THE MACARTHUR ASSERTIVE TREATMENT TEAM

• [The plaintiff] will be provided with support, monitoring and education about her mental illness and support options available to her and her family. Education will include but is not limited to information about early warning signs, precautions against relapse, the nature and course of her illness, the potential effects of drug and alcohol use and ways to increase her coping skills utilising the stress vulnerability model.

• Ensure that [the plaintiff] is aware of her rights of appeal and rights and responsibilities as a consumer of the mental health service and in relation to seeking revocation or variation of the Community Treatment Order.

• The allocated Clinical Care Coordinator will arrange the availability of a delegate during any leave of absence.

• Facilitate the effective implementation of the Community Treatment Order by arranging and supporting effective communication between [the plaintiff], her family. Clinical Care Coordinator or delegate. Consultant Psychiatrist or delegate or the Director of Community Treatment at the Macarthur Mental Health Service.

• Implement the Community Treatment Order in a way that minimises interference with [the plaintiff’s] ability to perform paid work.

[THE PLAINTIFF’S] OBLIGATIONS

1. [The plaintiff] must take the medication prescribed by the treating doctor/psychiatrist or delegate.

Current Medication:

Medication Dose Oral/intramuscular Frequency

Olanzapine Relprevv 30mg Oral Every day

2. [The plaintiff] must attend reviews with the treating doctor/psychiatrist or delegate at least once every 4 weeks for review of her mental state, medication and continued care planning. Reviews will be conducted by telehealth to minimise interference with [the plaintiff’s] ability to undertake paid work.

3. [The plaintiff] must meet with her Clinical Care Coordinator or delegate at least once a fortnight, to facilitate the development of rapport, goal planning and support to engage in meaningful community activities and employment.

4. The frequency, placing or timing of appointments between [the plaintiff], her Care Coordinator and treating doctor or delegates may be changed by the Clinical Care Coordinator or treating doctor, in a manner consistent with the Macarthur Assertive Treatment Team’s responsibilities, in particular, to minimise interference with [the plaintiff’s] work. [The plaintiff] will keep MATT team members appraised of her days and hours of work, so that they know not to call [the plaintiff] during work hours. Appointments will be conducted by telephone unless it is not effective to do so.”

112. On 11 August 2022 the office of the solicitor for the defendant provided to the Court a written response in terms to the following effect:

“The defendant is grateful to the Court for the opportunity to consider the possibility of an alternative treatment plan. Upon consideration, the defendant does not propose an alternative treatment plan. The defendant has not identified any substantially different Community Treatment Order which it considers would be consistent with the safe and effective care of the plaintiff, and appropriate in the circumstances.

The defendant notes the alternative treatment plan proposed by the plaintiff. The defendant is conscious that [the Court] has not invited submissions in respect of that proposal. The defendant, however, respectfully notes two issues concerned with the Court’s power which arise from the proposed plan:

1. The defendant remains of the view that the development of a treatment plan for the plaintiff is a matter for the defendant under s. 53(2)(a) of the Mental Health Act 2007 (“the Act”) and that the Court does not have the power to impose an alternative treatment plan if it forms the view that the existing Community Treatment Order should be set aside;

2. The defendant further submits that the appointment of a psychiatric case manager is a matter for the defendant under s. 114 of the Act, and that the Act does not give the Court the power to require the defendant to appoint a different person as the plaintiff’s psychiatric case manager. However, as indicated by counsel on instructions at the hearing of the matter, the defendant is giving careful consideration to the possibility of [Dr S] delegating her responsibilities under the existing Community Treatment Order.”

113. The references in the plaintiff’s draft alternative treatment plan and the defendant’s written response to Dr S reflect the fact that (to put the point neutrally) there has been friction between Dr S and the plaintiff in Dr S’s supervision of the plaintiff’s treatment of the plaintiff on behalf of the defendant.
114. I refrain from attributing blame for this friction because, despite the fact that the date for the hearing of the appeal was appointed to facilitate Dr S’s appearance before the Court, she was not available at the hearing to be cross-examined on her affidavit.
115. I am conscious of a need, on the one hand, not to interfere with, or undermine the authority of, the defendant’s performance of its functions and, on the other hand, to treat with respect complaints by the plaintiff about the way the defendant conducts its business.
116. The defendant would be wise to consider the possibility of nomination of somebody other than Dr S as the plaintiff’s treating doctor should the plaintiff continue to be the subject of a community treatment order. That is a topic to which I must return.

THE EVIDENCE

117. In the absence of Dr S, the defendant submitted its Director of Medical Services, Mental Health, Dr F, for cross-examination. His evidence was, on the whole, supported by evidence of Dr E, a forensic psychiatrist at the Forensic Hospital at Malabar, who was also made available for cross-examination. Their evidence falls to be considered in light of an affidavit of Dr S, a Court Book containing primary records, affidavits of a solicitor employed in the office of the Crown Solicitor for NSW and the evidence of the plaintiff personally.
118. In oral evidence-in-chief (supplementary to his affidavit affirmed on 21 July 2022), Dr F was asked whether he agreed (and he did agree) with the following observations in an affidavit (sworn on 13 May 2022) by the solicitor employed in the office of the Crown Solicitor for NSW, here reproduced with editorial adaptation (and emphasis added):

“Olanzapine

9. Olanzapine is an anti-psychotic medication [which] may be taken either orally on a daily basis or by way of long-lasting intramuscular injection. Medications which are administered by way of intramuscular injection are also referred to as “depot” treatment.

10. Whether Olanzapine is administered orally or by depot does not make a chemical difference. The drug is suspended differently in either tablet or fluid form, but the same active chemical compound reaches the brain. A 405mg dose of Olanzapine administered by fortnightly injections is chemically equivalent to a daily dose of 30mg of Olanzapine taken orally.

11. A person who receives depot Olanzapine is required to remain under observation for a period of two hours, to monitor for potential side effects of the injection (as distinct from side effects of the medication). During that period, the person may stand, sit or walk around, provided that they are available for observation.

12. Because there is no chemical difference in the medication, there is generally no difference between the side effects of Olanzapine when taken orally or by depot. If a patient experiences side effects of the medication in one form, they will generally experience the same side effects of the medication in the other form.

13. The main difference between oral and depot Olanzapine is that oral Olanzapine is taken by the patient on a daily basis, generally without supervision, while depot Olanzapine is administered by a medical professional and is long-acting. It is released slowly into the patient’s body.

14. Oral Olanzapine is therefore more convenient for patients, but it allows for a much greater risk of non-compliance, depending on the patient. The risks of non-compliance with depot Olanzapine are much lower because the medical professional in question knows whether or not the patient has received the medication.

15. Where a patient’s condition has stabilised on Olanzapine and ceases to take the medication, time to deterioration in mental state and or overt relapse of mental illness is variable. Medications such as Olanzapine treat episodes of illness and prevent recurrence.

Treatment Options

16. The preferred clinical treatment for [the plaintiff’s] condition is fortnightly intramuscular injections of Olanzapine at a dose of 405mg, due to the risk of non-compliance with oral medication.

17. The defendant’s usual process is to administer Olanzapine injections on Tuesdays to various patients who require them. Those patients remain under observation for two hours in case of any side effects of the injection. There are administrative efficiencies in administering these injections en masse.

18. If [the plaintiff] is prescribed Olanzapine orally, it would be possible to monitor her compliance with blood tests administered weekly. Such tests are available at Liverpool Hospital, through the public health system, on weekdays. It would ordinarily take no more than two hours for [the plaintiff] to undergo the blood test. The appropriate time to take the blood test would be 12 hours after [the plaintiff’s] dose of Olanzapine the night before, although there would be a window of 10-14 hours in which she could take the test and obtain usable results. The blood tests would take seven days to be processed.

19. There are a number of difficulties with monitoring compliance by blood tests, including:

a. It takes time for blood tests to be processed. If [the plaintiff] has not been compliant with her medication, it will take some time to identify this, during which time, her condition may deteriorate;

b. There is some margin for error on the blood tests. If [the plaintiff] takes her medication consistently, the level of metabolised Olanzapine in her blood should be reasonably stable, but it will take several tests to establish what that level is and there may still be some fluctuation;

c. The interpretation of the results can be a complex task and there is room for error in that task; and

d. The blood tests may be confounded by other things. In particular, if [the plaintiff] were to take any other medication, that could interfere with the metabolisation of Olanzapine.

119. Dr F also agreed with the deponent’s observation that fortnightly blood tests are not considered adequate to identify the plaintiff’s compliance with oral Olanzapine, and the defendant considers it clinically inappropriate for a son of the plaintiff resident with her to supervise her medication, as she and her son had proposed.
120. In his examination in chief Dr F also agreed with the following observations made in an affidavit sworn by Dr S on 27 May 2022 (here reproduced by reference to numbered paragraphs of the affidavit, with editorial adaptation and emphasis added):

“[8] I would add, in relation to [19] of the [solicitor’s affidavit extracted above], that blood tests for olanzapine are not reliably therapeutically reflective. There is reference for established range of olanzapine in a person’s blood which demonstrates that they are taking medication but it does not show specifically that the dose they are taking is as prescribed. In blood tests, variability in the level of olanzapine will ... reflect non-compliance and there are confounding factors (eg smoking, timing, error) which could influence these levels as well. It would require a few months of data from blood tests to interpret to identify whether a person is taking oral olanzapine as prescribed, based on changes in the level of olanzapine in their blood. ...

[10] As a psychiatrist, I consider schizoaffective disorder to be a more serious mental illness than delusional disorder. Both illnesses involve a person experiencing delusions, but a person suffering a schizoaffective disorder when unwell experience delusions [sic] and a significant impairment in terms of psychopathology (usually bizarre delusions, mood disturbances, thought disorder, hallucination, poor insight) and impaired global functionality in relation to matters such as their employment, education, and social roles. ...

[66] [The plaintiff’s] opposition to treatment is consistent with her lack of insight into her mental illness. ...

[67] Given her illness behaviour displayed by opposition to treatment described in detail above, I have concern regarding [the plaintiff’s] continuing to take anti-psychotic medication voluntarily if the CTO is removed. Non-compliance with medication is a feature of any mental illness where a person lacks insight into their mental illness.

[68] [The plaintiff’s] lack of insight also raises concerns about oral medication and whether she will comply with it consistently, with or without a CTO. For the same reason, it raises doubt regarding [the plaintiff’s] compliance with her oral medication being consistent raises doubt with the CTO. [The plaintiff’s]’s insistence on being on oral medication rather than depot medication is a warning sign that her insight may be becoming impaired for the reasons I have set out above.

[69] My clinical view is therefore that the most appropriate treatment for [the plaintiff’s] mental illness remains 405mg of depot olanzapine, administered fortnightly. This is the treatment plan which I would propose to continue implementing for [the plaintiff] for the time being.”

121. Dr F was not expressly invited in his evidence in chief to agree with paragraph 70 of Dr S’s affidavit, which is in the following terms:

“[70] I consider that that treatment plan has been effective so far in two ways. First, while [the plaintiff] has been receiving depot olanzapine, she has been more stable and more functional. She has been able to obtain a job. Second, it has allowed [the plaintiff’s] treating team to identify her intentions of deviating from the prescribed treatment.”

122. Dr F was asked in his examination in chief to agree (and he did agree) with the following paragraphs of Dr S’s affidavit:

[71] This treatment plan is less restrictive of [the plaintiff] than oral olanzapine monitored by weekly blood tests, because it requires less intrusive monitoring. If the Court ordered that [the plaintiff be] treated by oral medication and monitored by blood tests, I also think it would be necessary for her to be reviewed by a treating psychiatrist once every four weeks, rather than once every eight weeks as is currently the case under the CTO.

[72] This will minimise possibilities of relapse of her illness and protect her from becoming vulnerable to risks arising from her illness behaviours. She will be able to continue her job, fulfil her role as mother and be a productive member of the society. ...

[75] If [the plaintiff] is not the subject of a CTO, I consider that it is highly likely that she would relapse into an active phase of mental illness. I note also that this CTO provides for flexibility in [the plaintiff’s] treatment from time to time, which also has the potential to minimise its invasiveness, since treatment can be changed or altered if clinically appropriate.

Impacts of [the plaintiff’s] mental illness on herself

[76] If [the plaintiff’s] mental illness is not appropriately treated, it is likely that her mental state will deteriorate and she will start to display more problematic behaviour caused by her illness. In my clinical opinion, this will be detrimental to [the plaintiff] in several ways:

(a) her mental illness will affect her ability to remain in work. As her treating psychiatrist, I am supportive of [the plaintiff] being able to work;
(b) her mental illness will affect her relationship with her son [the one who the plaintiff had proposed supervise her taking of medication], who is the subject of some of the delusions caused by her mental illness;
(c) her mental illness will affect her functioning and capacity in everyday life;
(d) her mental illness will affect her reputation if it causes her to engage in problematic and potentially further unlawful behaviour; and
(e) her mental illness may affect her ability to remain free if it causes her to break the law, as has previously occurred.

[77] When [the plaintiff’s] mental illness is appropriately treated, she is able to remain functioning at a higher level and she has a fuller capacity to experience normal life. I consider that [the plaintiff] has the best chance of these outcomes if the CTO remains in place.”

123. In the affidavit affirmed by him on 21 July 2022, Dr F analysed blood tests undertaken by the plaintiff on 20 May 2022, 27 May 2022, 3 June 2022, 10 June 2022, 20 June 2022 and 24 June 2022, some of which were undertaken at Campbelltown Hospital. Although he records his understanding (based upon information provided by Dr S) that the plaintiff’s Treatment Team did not agree to the plaintiff attending upon Campbelltown Hospital, rather than Liverpool Hospital, he disclaimed any intention to criticise the plaintiff for her attendance at what was, for her, the more conveniently located hospital.
124. The gravamen of Dr F’s affidavit appears in paragraphs 44-45, here reproduced with editorial adaptation:

“[44] I do not consider that the consistency of the last four results [of blood tests] reflects that [the plaintiff] has been consistent in complying with her medication as prescribed. It may suggest that [she] has been consistent in taking some amount of olanzapine orally. It may be that [she] is taking a smaller dose than she is prescribed each day, or that she is taking her medication intermittently, rather than every day, or some combination of the two.

Conclusion

[45] I do not consider that it is plausible that [the plaintiff] is taking her medication as prescribed, given:

(a) the drop in the levels of olanzapine between the second and third tests; and

(b) the fact that, in the four most recent tests, she has recorded a level of olanzapine below the threshold for therapeutic benefit, despite being on a high dose.”

125. The defendant, through this evidence, demonstrated greater confidence in the reliability and efficacy of blood tests than it did when it resisted the regime of oral medication and blood tests adopted by the Court as an interlocutory regime pending determination of the appeal.
126. It is difficult to exclude entirely an impression that the one constant in presentation of the defendant’s case has been a fixed determination to insist upon compulsory administration of depot injections on terms wholly within the defendant’s untrammelled discretion, even as regards non-medical administrative arrangements.
127. I do not intend by this criticism, to reflect adversely upon any individual associated with the defendant. Both Dr E or Dr F presented themselves to the Court as conscientious health professionals. I apprehend, though, that there is a degree of institutional inertia in the administration of community treatment orders or, perhaps more accurately, a lack of resources, that has impeded engagement by the defendant with the particular circumstances of the plaintiff.
128. Dr F confirmed that the defendant has been unable to arrange for a private medical practitioner to administer depot injections on a weekend, and that an analysis of the plaintiff’s blood tests is not a common or straight forward process because the defendant has to send blood samples interstate for analysis. There was no exploration in the evidence of the possibility that a private practitioner might be trained to administer depot injections in a manner approved by the State’s public health authorities.
129. The following exchange took place between Dr F and myself during his cross-examination (with editorial adaption):

“QUESTION: [The plaintiff’s] treatment, whether it’s a matter of depot injections, or a matter of blood tests, all has to happen Monday-Friday, is that right?

ANSWER: Yes, it does; yeah.

QUESTION: There is no facility for either type of treatment to be conducted on the weekend?

ANSWER: Ah, the depot, no. It’s difficult. We have looked into the option of having a private laboratory doing it. What I found, their turn around for results is even longer than ours, and it makes them less useful. There is an option to - if a private practitioner is found who works on the weekends, that could be possible. They would have to have adequate resuscitation skills to be able to deal with the post-injection syndrome, if it occurred. We have tried to find GP’s willing to do that, and across south-west Sydney we have found two so far. One in the Southern Highlands and one in Bankstown, but they only want to look after one patient each. It’s difficult. Resources are limited in our service to have that monitoring available.”

130. In assessing the evidence of Dr S, Dr E and Dr F allowance also has to be made for the limited nature of their contact with the plaintiff.
131. Dr S appears to have had personal contact with the plaintiff on only three occasions, each time for the purpose of a review of the plaintiff’s condition. They met in person on 6 December 2021 and 28 March 2022. Their third encounter, on 4 May 2022, was by telephone.
132. Although the community treatment order under appeal obliged the plaintiff to attend a review with Dr S or a delegate of Dr S at least once every eight weeks, 11 weeks had passed by the time of the hearing of the plaintiff’s appeal without the defendant having arranged for such a review.
133. Dr S’s evidence appears to have relied in large measure on documentary records.
134. Dr E’s evidence about the medical condition of the plaintiff, and his prognosis, was also based largely upon documentary records. His personal contact with the plaintiff was limited and not recent. He met her for the purpose of a review on 31 March 2021 and 6 July 2021, with no subsequent meeting. His personal contact with her was thus about one year before the hearing of her appeal, and he gave evidence without having read an affidavit sworn by her on 22 July 2022.
135. Dr F had read the plaintiff’s affidavit of 22 July 2022 when he gave his evidence; but, when he gave his evidence, he had not met her or examined her in a clinical sense. His evidence was based upon his reading of the documentary record and discussions with Dr S consequent upon her unavailability to attend at the hearing.
136. Although the medical witnesses called by the plaintiff in support of its case have had little personal contact with the plaintiff, significance attaches to the fact that other officers of the defendant have maintained personal contact with the plaintiff without any report of aberrant behaviour on her part.
137. The following exchange occurred between the plaintiff’s solicitor and Dr F during his cross-examination (with editorial adaption):

“QUESTION: Are you aware that since this legal proceeding started [the plaintiff] has had at least weekly contact with the caseworker and the team, as opposed to Dr S?

ANSWER: That would be pretty standard, yes.

QUESTION: One of the things that they’ve been doing is attending [the plaintiff’s] home ... . During those home visits, you would assume – and I take it you know as a matter of ordinary practice, you would expect they would converse with her and see how she’s doing?

ANSWER: Yes.

QUESTION: You would expect that they would be inspecting her home to see if it was tidy?

ANSWER: Yes.

QUESTION: Through the home visits, the team are monitoring for evidence of relapse or at least the risk of relapse, aren’t they?

ANSWER: They are, yes.

QUESTION: For example, if [the plaintiff’s] home was unkept ... they would need to report that back to Dr S?

ANSWER: Yes.

QUESTION: If [the plaintiff] made statements that suggested she held delusional beliefs or was experiencing mood disturbances, thoughts disorder, hallucinations, poor insight – they are also matters they would report back to Dr S?

ANSWER: Yes.

QUESTION: Are you aware, through any source of knowledge relating to this proceeding, whether [the plaintiff] has in fact experienced any of those symptoms during the interim treatment regime?

Answer: Not that I’m aware of, no.

QUESTION: It’s now been some 11 weeks since Dr S’s last review. I want to ask you, Dr F, would you agree that [the plaintiff] is not in an active phase of her illness at the present time?

ANSWER: Based on the information in the records, I would say it doesn’t seem as though there is an overt positive symptoms of illness.”

138. At a later point in Dr F’s cross examination the following exchange occurred:

“QUESTION: To be abundantly clear, you are not suggesting in this proceeding that [the plaintiff] lacks insight into her own condition?

ANSWER: No, not in isolation, no.”

139. Dr F’s qualification of his answer appears to have been tied to his reading of the documentary record. At one point, when asked about the educative function of the defendant’s programme for treating the plaintiff, Dr F remarked:

“There’s still some concern about that - the extent of [the plaintiff’s] insight into her illness. That’s the tenor of the records, from my reading.”

140. The documentary record provides an important evidentiary foundation for assessment of the plaintiff’s medical condition. However, it requires careful reading because much of what it records is repetitious, with cumulative observations made in support of periodic recommendations to the Tribunal for ongoing protective orders against the plaintiff. In the absence of direct, personal engagement with the plaintiff, any reader of such documentation may unconsciously find it difficult to step outside the paradigm it presents. The voice of the plaintiff is not readily heard above criticism of her conduct over a course of time and perceptions of an argumentative personality.
141. Allowing for the possibility (which I accept as real) that a person suffering the plaintiff’s illness may have developed strategies for concealing his or her illness, the plaintiff presented herself, in the oral evidence she gave at the hearing of her appeal, as an intelligent, articulate, responsible and reasonable person, with more than a nominal insight into her history. She was well dressed and groomed. Her answers to questions were consistently rational and responsive. When confronted in cross-examination with what appeared to be an inconvenient fact about what she had said or done in dealings with health authorities, she more than once accepted the evidence against her but calmly offered a rational explanation which was not shown to be implausible.
142. The plaintiff’s motivation for pursuing her appeal appears genuinely grounded on a deep desire to pursue a career for which she has qualifications. She was not challenged on her evidence that the constraints of a regime of depot injections (some medical, some administrative) would be likely to prevent her from engaging in employment of the type for which she is qualified, if any. I accept that evidence.
143. Two affidavits of the plaintiff were read in presentation of her case. One was sworn on 10 June 2022, the other on 22 July 2022. Although she was challenged in cross-examination about her history of mental illness, her engagement with public health authorities and her evidence that she had faithfully taken her prescribed oral medication on a daily basis since the time of her motor vehicle accident in February 2022 or thereabouts, she was not cross-examined directly about her personal circumstances, her current employment or employment opportunities. Counsel for the defendant sought, and readily obtained, confirmation that the plaintiff has not disclosed her mental illness to her current employer(s). Beyond that, her observations about her employment were not challenged.
144. The following extract from the plaintiff’s affidavit of 10 June 2022 (here reproduced with editorial adaption) offers a convenient illustration of her perspective:

“[44] I do not believe I could undertake the essential requirements of [my current job particularised in the affidavit] if I were on a depot injection of Olanzapine at 300mg [as at one time proposed by Dr S] or 405mg [as prescribed] fortnightly because the depot injection makes me feel very drowsy and severely affects my concentration, motivation, energy levels and my ability to move. I especially do not believe I would be able to concentrate adequately to competently undertake my role. I believe I would struggle with all aspects of my role. I am very worried I would lose my employment with [my current employer] because I would not meet the requirement not to be impaired by medication.

[45] If I lose my employment with [my current employer] and am unable to perform employment because of the effect of the depot injections on me, I am very worried I will be unable to pay my rent on my rental premises ... . I am very worried that may cause me to become homeless.

[46] Even if I could somehow do my [current job] on depot injections, which I do not believe I could, I would not be able to drive to work with [my employer] on the day of the injection or the next day and based on my experience, I would be very sleepy for at least two days. To commute to work, I would need to get public transport which would take me longer. I would not feel as safe on public transport when on depot injections, since I am less aware of what is going on around me when on the depot injections,

[47] I believe that oral Olanzapine is less restrictive on me than depot injections of Olanzapine because it has a significantly reduced impact on my ability to function as a person, my ability to undertake employment and my personal freedom. When I am on depot injections of Olanzapine, I do not feel I function as a normal person. I would not be able to undertake employment that requires higher cognitive function. When on depot injections, my experience has been that it effectively limits my freedom to move because I am so drowsy, less energetic and less motivated. I mainly stay at home.

[48] Taking oral Olanzapine has less of an impact on my time because of the longer round trips involved when I attend the Olanzapine clinic and the fact that I have to take public transport when I am unable to drive following a depot injection.”

145. The plaintiff was not cross-examined directly on this evidence, or on her other evidence to similar effect, but was given opportunities to explain her perspective of her condition and treatment.
146. She was not cross-examined on her evidence (in her affidavit of 22 July 2022) that she maintains a stable home environment and that she has made arrangements to place herself under the care of a private psychiatrist in the event that the community treatment order under appeal is revoked.
147. In the final paragraph of her second affidavit, she made the following observation (not challenged directly, but obliquely, in cross-examination):

“I am not refusing treatment. I understand I must maintain a treatment of Olanzapine to avoid the possibility of a psychotic episode relapse. It is my intention to continue to take oral Olanzapine, 30 mg per night, medication. I accept it has meant I have not been at risk of having psychotic episodes.”

148. Her evidence was challenged robustly, principally by confrontation of her with statements attributed to her in the documentary record assembled by the defendant and by presentation of blood test results said to be inconsistent with her evidence of compliance with a daily regime of oral medicine.
149. The following exchange in cross examination of the plaintiff provides her perspective of the circumstances relating to the making of the community treatment order under appeal (with editorial adaptation):

“QUESTION: ... Did you agree to the community treatment order which is the subject of these proceedings?

ANSWER: Yes, I did.

QUESTION: And did you agree to that on or around 11 November [2021]?

ANSWER: On 11 November, yes, I did.

QUESTION And so it’s right to say that as at that date you agreed to taking 405 milligrams by way of intramuscular injection of olanzapine?

ANSWER: Yes, I did. But I - could I provide an explanation as to why I agreed to that order? Because there is an explanation.

QUESTION: Certainly.

ANSWER: In the forensic hospital I did not feel safe. I was assaulted twice. I had my possessions stolen. I was amongst people who had killed children, killed their schoolteacher. I was basically housed in a hospital which was full of people who had committed homicide. I did not fit the criteria to be in there. I was scared for my safety. I would have agreed to anything to get out of there, and that’s why I agreed to the order.

QUESTION: So you agreed to the order so that you could be discharged from the hospital?

ANSWER: Yes.

QUESTION: Not because you accepted a need or a desirability of taking that medication?

ANSWER: I accept a need for medication. But I believe that there is an alternative. Like, I am currently on the oral medication. It - it was not due to being in denial about being mentally unwell or requiring medication. But I agreed to the excessive dose of the depot medication so I could get out of that hospital.

QUESTION: You just used the words ‘excessive dose’. By ‘excessive dose’ do you mean by receiving injection rather than taking a olanzapine in tablet form?

ANSWER: No. I mean excessive dose because while I was in that hospital every other patient who was on the olanzapine injections was on the injection every four weeks. I was the only patient that I knew of who was on a fortnightly dose, and it became apparent to me during my stay in the hospital that I was receiving double the dose of anybody else in that hospital.

QUESTION: But ... you didn’t know did you, how much of - by way of quantity of olanzapine was in each of the doses given to each of the other patients?

ANSWER: Yes, I did. Because everybody spoke about their medication. There was not a lot to do in that hospital except sit around and talk about your medication. It – it’s just the nature of the place.

QUESTION: And, to be clear, it is still your belief that a 405-microgram dose of injectable olanzapine is too high?

ANSWER: Can I just correct you? The dose is 405 milligrams.

QUESTION: Sorry.

ANSWER: And 405 milligrams fortnightly is way too high.

QUESTION And again, just so I’m clear on what your evidence is, it’s your evidence that it’s way too high because of your understanding of the dosages that were being administered to other patients in the forensic hospital?

ANSWER: No. No, that - that was a side issue. The - the thing that gave me the impression that my dose was too high was that I couldn’t focus my eyes, I couldn’t read a document, I just wanted to sleep all the time. I had periods where I would have a really dry mouth, and then periods where I would be drooling excessively. And it seemed to alternate, so there was no point in even asking for something for the dry mouth because it was different every day. I - I had periods of being really depressed, which I never had before the medication. I had a whole host of really unpleasant side effects. And I just felt that the medication I was on was too strong, because I’d already had the experience of taking tablets prior to the injection. So I knew what that drug felt like in a lower dose.

QUESTION: Is it your current belief that a dose or - a nightly dose of 30 - I think it is micrograms?

ANSWER: 30 milligrams.

QUESTION All right, milligrams of - well, your current dose of olanzapine. Is it your current belief that that that is excessive?

ANSWER: I believe - I believe it's high. But where it differs from the injection is that I take it, it puts me straight to sleep. I wake up. I’m quite groggy when I wake up. But I have a coffee and a shower, brush my teeth, and then I seem to be somewhat alert and able to - to carry out my daily activities. And that’s where it differs from the injectable form.”

150. The following exchange took place between the plaintiff and myself during her cross-examination about the therapeutic benefits of her oral medication.

QUESTION: Do you feel that the tablets have helped you?

ANSWER: They have, absolutely. I’m not preoccupied with the police officers who I - who were involved in my children’s removal [from the care of the plaintiff by child welfare authorities] back in 2013. I’m not preoccupied with anything negative. I am optimistic about my life. I’ve become really career driven and ambitious and focused, and I’m doing really well at my job. And I think a lot of that is owing to the oral olanzapine helping me to be quite balanced.

QUESTION: ... Are there any side effects with the oral medication that you’d like to draw to attention?

ANSWER: No, nowhere near as much as the injections. I’m still getting the dry mouth at night, which has been able to be mitigated by buying a mouth wash from the chemist which I use before bed. I am still feeling sleepy, but a really strong coffee is being able to fix that in the morning. I just feel like I am functioning quite well. I’m not – I used to be - before the medication I used to be quite fit and I used to train a few times a week at the gym. I don’t have the energy to do that anymore, but I work - I walk every day in my lunch break at work and I’m still being as active as I can under the circumstances.”

151. The following exchange between counsel for the defendant and the plaintiff also occurred during her cross examination:

“QUESTION: Is it your goal, generally speaking, to reduce your dose of medication over time?

ANSWER: No. It’s my goal to be a productive member of society.”

152. On one view, a high point in counsel’s cross examination of the plaintiff (from the perspective of the defendant) was the plaintiff’s response to a passage in the medical report dated 1 November 2021 prepared for the Tribunal hearing on 11 November 2021. That passage, read to her by counsel, was in the following terms (with editorial adaption):

“[The plaintiff] does, however, still show limited insight into her illness in reviews with a preference for seeing her problem behaviour through a PTSD [post-traumatic stress disorder] lens rather than that of a psychotic illness.”

153. That passage having been read to the plaintiff, she was asked:

“Was that true at the time [somewhere between 14 October 2021 and 1 November 2021]?”

154. The plaintiff’s response was:

“Yes, and it’s still - I believe that I hold to this day. However, I do notice a benefit from taking the medication irrespective of my difference of opinion about what my diagnosis is.”

155. The question of whether any (and, if so, what) event or events might have occurred in the life of the plaintiff to cause a post-traumatic stress disorder was not explored in the evidence. A fair inference, however, is that, in the plaintiff’s estimation, she was traumatically affected by the removal of her children from her care, if not other events in her domestic life.
156. The plaintiff’s attribution of her mental illness to PTSD cannot fairly be taken as indicative of a denial of the illness itself. Her rationalisation of her mental illness by reference to her experience of trauma is within a normal range of human experience. She has come to an appreciation that she has a mental illness. The reasons why she attributes her illness to PTSD were not explored in the evidence.

THE PLAINTIFF’S RELATIONSHIP WITH DR S

157. Regrettably, conflict between the plaintiff and Dr S cannot but be noticed in disposition of the plaintiff’s appeal.
158. In her affidavit of 10 June 2022 the plaintiff made the following observations (here editorially adapted):

[49] If the Court determines to vary the CTO, I would prefer that a different treating psychiatrist be appointed to my case instead of Dr S. I am concerned that there have been disagreements and conflict between Dr S and me since April 2022 and now because of these court proceedings. I do not feel that Dr S has acknowledged the impact that depot injections would have on my ability to work. I do not feel there is any trust between Dr S and me. ...

[56] ... I refer to Dr S’s allegation that [in a telephone call between her and the plaintiff on 4 May 2022] I refused to take depot olanzapine on the basis of my work commitments. I deny that I refused to take depot olanzapine. I pleaded with Dr S not to put me back on depot olanzapine because I ... understood it was up to Dr S to decide. After the call with Dr S, I asked my lawyer ... to call Dr S to advocate for me, although I understood that Dr S did not take [the lawyer’s] call. I also asked my friend [the plaintiff’s support person] to call Dr S in the hope that he could persuade her to keep me on the oral medication so I would not lose my job.

[57] ... When I told Dr S that I had not told my employer about my health situation or my [medication], Dr S said words to the effect of, ‘I will call your work. They need to know about your mental health. The charges are very serious. You need to be on a very strong dose. This is the dose we give to terrorists’.”

159. Dr S did not swear an affidavit in reply to this evidence of the plaintiff, and she was not available to give oral evidence at the hearing of the appeal.
160. Counsel for the defendant cross-examined the plaintiff about her relationship with Dr S, including various incidents which, in my assessment, indicate that Dr S and the plaintiff were at times at cross purposes. I do not intend to be critical of either woman for their miscommunications.
161. The focus of present attention is the plaintiff’s allegation that Dr S threatened to call her employer and likened her to a terrorist. During the course of the plaintiff’s cross examination the following exchanges occurred on this topic (here reproduced with editorial adaptation):

“QUESTION: Do you recall now - that is, now, not when you wrote this affidavit or prepared this affidavit, but now – that exchange with Dr S, that is, an exchange about the possibility of Dr S contacting your employer?

ANSWER: Mmm.

QUESTION: And it’s possible, isn’t it, that Dr S was attempting to provide assistance to you, isn’t it, by explaining to your employer your situation?

ANSWER: I am honestly not sure what her motivation was.

QUESTION: And, upon reflection, do you accept that Dr S didn’t say the words “This is the dose we give to terrorists”?

ANSWER: That is absolutely what she did say to me.

QUESTION: And do you accept, in so far as you recall now, that Dr S was explaining in that exchange, whatever she said, the strength of the dose that you’re on?

ANSWER: She said to me: ‘The charges are very serious. We need you on a very strong dose. This is the dose we give to terrorists’.

QUESTION: When you say ‘charges’, what are you referring to?

ANSWER: She’s referring to my police charges which led to me becoming incarcerated [for conduct associated with the plaintiff’s mental illness].

QUESTION: So it’s your recollection now that what Dr S said was that you’re on a dose that - did she say that she gives to terrorists or that one does?

ANSWER: ‘This is the dose we give to terrorists’.

HIS HONOUR:

QUESTION: Is it possible that she was speaking to you with a sense of irony?

ANSWER: I’m not sure.

QUESTION: See, sometimes what happens is people who are speaking use what they think is a sense of irony to convey perhaps a truth which is greater than the words actually used. But if you’re not the speaker and you’re the speakee, the person hearing it, you hear something else, particularly if you’re in a state of being sensitive about it. Is it possible that ...

ANSWER: I found it to be offensive. It may not have been anything personal, though.”

162. Without the benefit of a response from Dr S or an opportunity to engage with her about her relationship with the plaintiff, I am not in a position to form a view about her conversations with the plaintiff. I am nevertheless inclined to the view that, if Dr S used the words attributed to her by the plaintiff, she did so without any intention to cause offence, but simply to emphasise the importance of the business in hand. My sense is that my intervention in the defendant’s cross-examination brought home to the plaintiff the possibility that, whatever words Dr S may have used, she was not intending to cause offence.
163. Of greater concern for the Court in disposition of the plaintiff’s appeal are the following observations made in the affidavit of Dr S (with editorial adaptation):

[62] [The plaintiff] has repeatedly displayed illness behaviours by challenging orders requiring her illness to be treated with clinically appropriate treatment of medication regime by specialists [sic]. I understand from the November Discharge Summary that [the plaintiff] twice appealed unsuccessfully to the Mental Health Review Tribunal for discharge from the Forensic Hospital under section 44(2) of the Mental Health Act 2007. These proceedings are a further example of [the plaintiff] challenging her prescribed treatment. She last received depot olanzapine in accordance with the CTO on 22 February 2022.”

164. In the absence of Dr S, the solicitor for the plaintiff took up this topic in his cross-examination of Dr F. With editorial adaptation, the transcript records the following exchanges:

“QUESTION: Do you agree, as a general statement, if a treating psychiatrist were to call a patient’s employer without their consent and divulge their health information to their employer, that that would be overstepping the boundary?

ANSWER: Yeah, I would doubt very much that that’s what Dr S was intending there. I agree with your ... statement. It wouldn’t be appropriate to ring up an employer without the consent of somebody. We frequently talk to employers and education providers in order to assist people return to work and make sure that they get the right conditions at work to make work manageable for them. I don’t understand the comment [alleged to have been made by Dr S] in isolation.

QUESTION: It’s also the evidence of [the plaintiff] that on 4 May 2022 at the review, Dr S said to her words to the effect of, ‘the charges are serious. We need to be on a very strong dose. This is the dose that we give to terrorists’. I can appreciate you have no first-hand knowledge of whether Dr S said that, but is it your professional opinion that such a statement would be an inappropriate thing for a psychiatrist to say to an in-patient?

ANSWER: Yes, it would be inappropriate. It’s difficult to imagine she would say that.

QUESTION: I am not asking you to comment one way or the other whether it was said, but you would agree such a statement would portray a prejudice towards the patient around, lob [sic] the patient with violent offenders such as terrorists?

ANSWER: Yes, [if] it was said, it would be an unusual thing to say.

QUESTION: Would it also suggest to you that the treating psychiatrist is putting excessive weight on the potential risk of harm to others compared to the benefit of the employment for that person?

ANSWER: Look, I think, as a general principle, that balance is always difficult to make and it’s an important balance to strike. Whether or not the right balance has been struck, is never easy to say. It’s not necessarily those two. They are mutually exclusive and the aim is to, to give somebody treatment so they can get back to work, get back to employment, and, if in this instance, their level of treatment was pulled back, the treating team would be concerned that they would run the risk of [the plaintiff] losing her employment and losing all the gains that she has made. It’s not just the risk of harm to others. It’s the risk for [the plaintiff] of losing everything. She worked very hard not to lose that employment. I don’t want [her to] lose it. They are a bit concerned about the harm because that’s there in the history as well. She has harmed other people when she has become unwell. She has harmed herself as well.

QUESTION: On the point about harm, Dr F, would you agree that there is no evidence during the currency of this CTO since 11 November of last year to indicate that [the plaintiff] has harmed anyone or has an intention to harm anyone?

ANSWER: Yeah. There is - no, there is no evidence during that period, when she has been given treatment, no.

QUESTION: If this CTO were to continue on any terms, is it possible for the health district to allocate a different treating psychiatrist to [the plaintiff], other than Dr S?

ANSWER: Yeah. She is part of that team. She is the only psychiatrist, since she runs that team with the registrar and the team. It’s probably the best team to look after [the plaintiff] at the moment. Would it be possible, if we do do that on occasion. But you have to be sensible about making that change, if you run the risk of moving somebody to - and I’m not talking about [the plaintiff] specifically, but sometimes if you move somebody at the request of a client or a family sometimes it’s a bit difficult, but you can just transfer to another team.

QUESTION: Would the health district need to take into account the very fact of this proceeding which is adversarial, and may have served to bring to mind the rapport and the relationship between Dr S and [the plaintiff]?

ANSWER: It’s a possibility, yeah.”

165. Having laid out this evidence, I make the following comments. First, Dr S’s affidavit appears to exhibit a degree of frustration with the plaintiff that supports my earlier comment that the defendant would be wise to consider the possibility of nomination of somebody other than Dr S as the plaintiff’s treating doctor should the plaintiff be the subject of a community treatment order. Secondly, I note that the defendant (as evidenced by its communication of 11 August 2022 to the Court) has not committed itself to any course of action but indicated that it is “giving careful consideration to the possibility of Dr S delegating her responsibilities under the existing community treatment order”. Thirdly, nothing in this judgment is intended to reflect adversely on Dr S, or any other person. Fourthly, although I accept (as the plaintiff’s solicitor put to Dr F) that there is an adversarial aspect of the present proceedings, it is important to remember that the nature of the proceedings is essentially protective of the plaintiff, not adversarial in the sense that that word is used in the conduct of ordinary civil litigation.

DETERMINATION

166. On the evidence before the Court, I am bound to revoke the community treatment order under appeal because (upon a new hearing, pursuant to sections 163-164 of the Mental Health Act, of the question, stated in terms of section 53(1) of the Act, whether the plaintiff is a person who should be subject to the community treatment order under appeal) I am not satisfied, as section 53(3) requires that I be satisfied, of the requirements of section 53(3)(a) and section 53(3)(b).
167. Nor am I satisfied, as section 53(3A) of the Act requires that I be satisfied, that the plaintiff is likely to continue in or (on the evidence, more to the point) to relapse into an active phase of mental illness if the community treatment order under appeal is not upheld.
168. The defendant has contributed to the outcome of the plaintiff’s appeal by its refusal to entertain any form of variation of the community treatment order under appeal (or, more particularly, the treatment plan incorporated in the community treatment order), or administrative arrangements (for example, the administration of depot injections on a Saturday), designed to facilitate the plaintiff’s employment, notwithstanding its acknowledgement that her employment is both therapeutically beneficial to her and an objective indicator of her growing insight into her mental illness.
169. As established by the evidence read as a whole, the plaintiff is not currently in an active phase of her illness, although there remains a risk of relapse if she does not take her medication, a risk which, I am satisfied, she genuinely recognises. If (as I expect) she adheres to her programme of taking daily doses of her medicine as prescribed, that programme is a form of care “of a less restrictive kind [than a fortnightly depot injection], that is consistent with safe and effective care, is appropriate and reasonably available to [the plaintiff].”
170. Much depends on whether she can be encouraged, and supported, to adhere to her programme of taking her medication under medical supervision, not necessarily that of the defendant.
171. There is no evidence before the Court that the plaintiff is currently engaged in aberrant behaviour. She maintains a stable home environment and, since the time that the community treatment order under appeal was made, she has engaged in gainful employment.
172. There is, of course, no guarantee that she will continue voluntarily to take her medication. However, her intention to do so is not confected, her strong desire to pursue a career (and her apparent ability to do so) provides a strong incentive to maintain good health, and she has a plan for private medical care going forward.
173. In the absence of any evidence of current aberrant behaviour, I am not satisfied that the plaintiff’s blood test results are sufficient, of themselves, to require that the plaintiff be required to submit to depot injections destructive of her career opportunities. A balance must be struck in the management of risks. On the evidence before the Court I incline to the view that the community treatment order under appeal should be revoked. In forming that view I have noted, particularly, a need for respect for the plaintiff’s civil liberties; an acceptance by a senior representative of the defendant that her mental illness is not presently in an active phase; the lack of any evidence of current aberrant behaviour; the plaintiff’s maintenance of a stable home environment; and her positive engagement with case workers of the defendant in connection with home visits and other pastoral contact.
174. In my opinion, in the particular circumstances of the present case, a regime of oral medication for the plaintiff is appropriate and reasonably available to her, consistent with safe and effective care, and of a kind less restrictive than a regime of depot injections.
175. In so far as the defendant lacks the ability, or will, to administer the current treatment plan in a way that accommodates the plaintiff’s reasonable desire to engage in employment, it is not, in my opinion, an appropriate plan. It might, from the perspective of the defendant, be administratively convenient and a means of minimising risks of aberrant behaviour on the part of the plaintiff, but care needs to be taken not to elevate the defendant’s administrative convenience beyond the reasonable; and a risk of relapse must be managed, not used as justification for coercive control of the plaintiff.
176. In making these observations I should not be taken to be unmindful of the important work undertaken by the defendant or the difficulties inherent in treating a mentally ill person and facilitating management of his or her affairs. On the contrary, the defendant is to be commended for the work it has done in treatment of the plaintiff, and in assisting her to come to a better understanding of her mental health and of a constant need for vigilance in dealing with mental illness. My impression is that the plaintiff has benefitted, particularly, from engagement with, and the encouragement of, the defendant’s caseworkers who have maintained home visits and telephone contact.
177. What is presently an impediment in the plaintiff’s ongoing treatment appears to be an institutional resistance on the part of the defendant to working with the plaintiff to enable her “to live, work and participate in the community” (to quote section 68(c) of the Mental Health Act) without unnecessary “interference with her rights, dignity and self-respect” (to quote section 68(f) of the Act). Paraphrasing section 68(d) of the Act, care needs to be taken not to impose on the plaintiff a treatment plan governed more by the administrative convenience of service providers than the individual needs of the plaintiff.
178. I commend to the parties the possibility that by working together, on a voluntary basis, they might devise a programme in which the plaintiff can retain medical professionals of her choice and nevertheless receive, from time to time, the encouragement and support of the defendant’s caseworkers. Small empathetic acts, combined with a weather eye for potential problems, might prove more effective than formal, clinical appointments with battle lines drawn.
179. Independently of any question of compulsion by law, a regime of “regular supervision” (of oral medication), similar to that proposed by Brereton J in S v South Eastern Sydney & Illawarra Area Health Service and Anor [2010] NSWSC 178 at [38], extracted above, might not be far removed from what is “appropriate” in the circumstances of the present case.

ORDERS

180. Subject to allowing the parties an opportunity to be heard as to the form of the Court’s orders, and costs, I propose to make orders to the following effect in disposition of the plaintiff’s appeal:

(1) ORDER, subject to further order, that the plaintiff be identified for the purpose of these proceedings by the pseudonym “T”.

(2) ORDER that the time within which the plaintiff may appeal from the determination of the Mental Health Review Tribunal made on 11 November 2021 be extended up to an including 19 May 2022.

(3) ORDER that any requirement for the plaintiff to include in her summons an application for an extension of time be dispensed with.

(4) ORDER that the community treatment order affecting the plaintiff made by the Tribunal on 11 November 2021 be revoked.

(5) ORDER that the plaintiff be released from the undertakings given by her to the Court on 10 and 16 May 2022.

(6) ORDER that the interlocutory injunctions granted against the defendant on 10 May 2022 be discharged.

(7) ORDER, subject to further order, that the defendant by itself, its servants and agents be restrained from communicating to any employer of the plaintiff personal information relating to the plaintiff without the prior leave of the Court or the Tribunal, the written consent of the plaintiff, or not less than seven days written notice to the plaintiff.

(8) ORDER that a copy of the Court’s orders, and reasons for judgment, be provided by the Court to the President of the Mental Health Review Tribunal for the information of the Tribunal.

(9) ORDER that, should the defendant at any time in the next three years, apply to the Tribunal, or be a party to proceedings in the Tribunal on an application, for an order under the Mental Health Act affecting the plaintiff, it bring to the attention of the Tribunal members charged with determination of the application these orders and the Court’s reasons for judgment published in support of the orders.

181. In draft orders 7 and 9 I have proposed to allow for the possibility that the plaintiff may find her way back to the Tribunal, not with the intention of encouraging the defendant to make a fresh application to the Tribunal as a matter of course, but in an endeavour to ensure that whatever is done, or not done, is done in the interests, and for the benefit, of the plaintiff as a person in need of protection.
182. In reserving to the parties an opportunity to make submissions as to the costs of the proceedings, I draw to attention the fact that, upon the exercise of the Court’s protective jurisdiction, disputed questions of costs are ordinarily determined by reference to the question of what, in all the circumstances, is the proper order for costs, and not by reference to the ordinary rule in civil litigation that costs follow the event: CCR v PS (No 2) (1986) 6 NSWLR 622 at 640.
183. Approaching the question of costs in that manner, I am presently minded to order that the defendant pay the plaintiff’s costs of the proceedings.
184. Although the fact that the plaintiff has been successful in the proceedings is not determinative, it remains a factor to be weighed in the balance. The plaintiff had to endure a contested hearing to vindicate her claimed entitlement, albeit an entitlement qualified by a need to consider factors relevant to an exercise of protective jurisdiction. An appellant from the Tribunal who, on reasonable grounds, exercises a right of appeal should not be deterred from doing so by the prospect of an adverse or unfavourable costs order.
185. Although the defendant’s approach to the proceedings was principled it was not, in my opinion, as nuanced as it could, and should, have been.
186. The defendant’s costs were incurred in performance of a public function. It should, at least, bear its own costs of the proceedings.
187. The larger question is whether the defendant should bear the plaintiff’s costs.
188. In addressing that question, I am mindful of a need not to impose on the defendant a liability for costs which might, from its perspective, be perceived as an unfair burden imposed upon it for performance of its role as the plaintiff’s contradictor. That said, an exercise of the Court’s cost jurisdiction involves no element of penalty. To think otherwise would be incorrect.
189. In the circumstances of the present case, I am inclined to the view that the costs of the proceedings (including the costs of the plaintiff) are best viewed as an incident of the defendant’s performance of its public functions. The plaintiff acted reasonably in exercising her right of appeal and conducted her case in a manner that was both reasonable and efficient. I am satisfied, in any event, that an order for costs against the defendant in the present proceedings would not act as a deterrent to its ongoing performance of its public functions. That being so, an order that costs follow the event may be the proper order in all the circumstances of the case.

ADDENDUM (13 September 2022)

190. After allowing the parties an opportunity to be heard about the form of dispositive orders, Lindsay J on 2 September 2022 made orders in terms of those proposed in paragraph 180 of the reasons for judgment published that day. His Honour also reserved to the defendant liberty to apply for an order that Order 7 be discharged or varied and reserved all questions of costs.
191. The parties informed the Court that the plaintiff had recently changed her place of residence beyond the defendant’s district.
192. On 7 September 2022, after allowing the parties to be heard, Lindsay J made orders and notations to the following effect:

(1) NOTE that, in the absence of agreement between the parties, the Court is presently minded to amend order 7 of the orders made on 2 September 2022:

(a) (a) to limit its operation to a time similar to that operating in respect of order 9 of the orders of 2 September 2022; and

(b) (b) to insert after the word “plaintiff” (first occurring) “(without reasonable cause)”.

(2) NOTE that the defendant is to give consideration to whether it might be open to giving to the plaintiff an undertaking (on a without admissions basis), inter partes, in terms substantially the same as the proposed amended order 7.

(3) RESERVE for further consideration in chambers whether order 7 should be discharged or amended in light of such, if any, undertaking as may be proffered by the defendant.

(4) ORDER that any proposal for an inter partes undertaking in lieu of order 7 be communicated to the chambers of Lindsay J, no later than 9 September 2022.

(5) ORDER that the defendant pay the plaintiff’s costs of the proceedings on the ordinary basis.

(6) ORDER that these orders be entered forthwith.

193. By an email dated 9 September 2022 the office of the Crown Solicitor informed the Court that the parties had agreed, in substance, to substitute for Order 7 the following:

(1) ORDER that Order 7 of the orders made on 2 September 2022 be discharged.

(2) NOTE that the defendant gives to the plaintiff an undertaking to refrain from disclosing to any employer of the plaintiff any “personal information” or “health information” of the plaintiff, within the meaning of those words in either the Health Records and Information Privacy Act 2002 (NSW) or the Privacy and Personal Information Protection Act 1998 (NSW), in contravention of those Acts.

194. On 13 September 2022 Lindsay J, in chambers, made an order and a notation in those terms.

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Amendments

13 September 2022 - Addendum added at [190]

14 September 2022 - At [180](4) "11 November 2022" amended to read "11 November 2021"

20 September 2022 - At [1], "(constituted by section 70 of the Act)" amended to read "(constituted by section 140 of the Act)"