Forced medication by depot injection

SMF v South Western Sydney Local Health District [2018] NSWSC 303 is a Supreme Court consideration of an appeal from a a community treatment order made against a person suffering schizophrenia by the Mental Health Review Tribunal.

Neither party to the appeal contended that the nature of the appeal required the Public Guardian to be a party to the proceedings or otherwise to be represented on the hearing of the appeal. Nor was there any suggestion that the NSW Trustee was a necessary or proper party, or that it should be consulted on the hearing of the appeal (at [24]).

At [29] of the judgment:

The plaintiff’s father attended both the pre-trial directions hearing … and the final hearing …. He was allowed an opportunity to participate in the proceedings on both occasions, and he did so without cutting across either the plaintiff (who appeared without representation at the directions hearing and with pro bono counsel at the final hearing) or her counsel. On both occasions he quietly interacted with the plaintiff, in a manner consistent with his roles as her father and principal carer, as she wandered in and out of the court room, constantly restless and apparently in a world of her own.

On the hearing of the appeal, counsel for the plaintiff read a formal affidavit affirmed by the plaintiff in which she simply asserted that she is “not in need” of the community treatment order under appeal.

The court held at [61] – [63]:

In response to the second issue identified for determination, I find, subject to one point of clarification, that the treatment plan dated 11 October 2017 (which was before the Tribunal on 12 October 2017) is an appropriate treatment plan that will benefit the plaintiff.

The point of clarification is that, in my opinion, under that treatment plan, it is open to Dr HS as the nominated treating doctor/psychiatrist (or delegate) to titrate the dosage of risperidone administered to the plaintiff (in order to maximise the benefits to her, and to minimise side-effects) in accordance with standard medical practice, paying due regard to the statutory obligations (including the obligation for which section 85 provides) of a medical practitioner governed by the Mental Health Act.

The plan does not confer on any officer of the defendant, let alone the treating doctor/psychiatrist, an unconfined discretion in the prescription and administration of medication affecting the plaintiff. The treating doctor/psychiatrist must work, within the administrative structure of a declared mental health facility, in pursuit of stated goals, using medication of the nature and form of administration described in the plan.

On the relationship between a guardianship order and a community treatment order, the court held at [67] that a community treatment order. to the extent of any inconsistency, overrides a decision made by the guardian of a person under guardianship (within the meaning of both the Guardianship Act and the Mental Health Act). A guardian is not entitled, in law, to override or countermand a community treatment order. That is not to say that a guardian should not ordinarily be consulted in the treatment of the person under guardianship, but that a guardian has no right of veto in law.

The plaintiff’s appeal was dismissed.

One Reply to “Forced medication by depot injection”

Comments are closed.