On 12 March 2010 in S v South Eastern Sydney & Illawarra Area Health Service  NSWSC 178, the NSW Supreme Court considered the requirements for making a community treatment order (CTO) under Part 3 of the Mental Health Act 2007 (NSW) (the Act).
In this case, Mr S suffered a low grade schizophrenic illness. The evidence was that without the treatment Mr S engaged in bizarre behaviour, including aggressive behaviour, hearing voices and threatening physical harm to his father. He also had a number of non-compliance issues with various treatment plans dating back to 1999.
In 2009 Mr S was under a CTO for Risperdal Costa 25mg fortnightly, from which the current appeal was brought. The appeal was heard 'de novo' where the evidence was heard afresh.
The issues considered by the Court regarded the interpretation of section 53 of the Act:
- whether no other care of a less restrictive kind (than that provided for by the CTO), consistent with safe and effective care, is appropriate and reasonably available and whether Mr S would benefit from the order as the least restrictive alternative consistent with safe and effective care;
- whether a declared mental health facility has an appropriate treatment plan for Mr S and is capable of implementing it; and
- whether Mr S - having within the last twelve months been the subject of a CTO - is likely to continue in or relapse into an active phase of mental illness if the order is not granted.
In this case, Brereton J allowed the appeal on the basis that whilst the CTO was appropriate, he was not satisfied that the order made by the Tribunal was the least restrictive alternative consistent with safe and effective care.
In the Court's 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, was appropriate (though perhaps not optimal) and reasonably available, and would be a less restrictive alternative (to one providing only for IMI depot medication) consistent with safe and effective care.
The matter was then referred to the Area Health Service to make a further application to the Mental Health Tribunal supported by such a treatment plan.
This case indicates that the Courts are becoming more active in objectively reviewing CTOs and ensuring that they are the least restrictive alternative consistent with safe and effective care. Clinicians preparing CTOs must ensure that the CTO is consistent with each element of the Act.
© DLA Phillips Fox
DLA Phillips Fox is one of the largest legal firms in Australasia and a member of DLA Piper Group, an alliance of independent legal practices. It is a separate and distinct legal entity. For more information visit www.dlaphillipsfox.com
This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances.