S v South Eastern Sydney & Illawarra Area Health Service and anor [2010] NSWSC 178

S v South Eastern Sydney & Illawarra Area Health Service and anor [2010] NSWSC 178

Although Mr S required anti-psychotic medication and the treatment plan involving Risperdal Consta depot injections was appropriate and capable of implementation, the Court was not satisfied that the particular order was the least restrictive alternative consistent with safe and effective care. Mr S was likely to become non-compliant and relapse if under no legal obligation, but the evidence did not establish that relapse was likely under a less restrictive order permitting oral medication as an alternative to depot injections with regular review. Because no alternative treatment plan was before the Tribunal or the Court, the Court could not substitute such an order and set aside the...

Jurisdiction
Australia
Judgment Date
12 March 2010
Procedural Posture
Appeal From a Community Treatment Order Made by the Mental Health Review Tribunal Under (nsw) Mental Health Act 2007, S 51 / Hearing De Novo in the Supreme Court of New South Wales, Equity Division, Protective List
Outcome
Appeal allowed; community treatment order set aside; application for the community treatment order dismissed; no order as to costs.
Legal Topics
['community Treatment Orders' 'involuntary Treatment in the Community' 'least Restrictive Alternative' 'appeal by Way of New Hearing' 'treatment Plans' 'schizophrenia and Anti Psychotic Medication']
['mental Health Law' 'administrative Law' 'protective Jurisdiction'] ['community Treatment Orders' 'involuntary Treatment in the Community' 'least Restrictive Alternative' 'appeal by Way of New Hearing' 'treatment Plans' 'schizophrenia and Anti Psychotic Medication']

Case Brief

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Procedural Posture

Appeal From a Community Treatment Order Made by the Mental Health Review Tribunal Under (nsw) Mental Health Act 2007, S 51 / Hearing De Novo in the Supreme Court of New South Wales, Equity Division, Protective List

Legal Issues

  1. 1 ['Whether no other care of a less restrictive kind than the order, consistent with safe and effective care, was appropriate and reasonably available and whether Mr S would benefit from the order as the least restrictive alternative consistent with safe and effective care under s 53(3)(a).' 'Whether a declared mental health facility had an appropriate treatment plan for Mr S and was capable of implementing it under s 53(3)(b).' 'Whether Mr S, having within the last twelve months been the subject of a community treatment order, was likely to continue in or relapse into an active phase of mental illness if the order was not granted under s 53(3A).' 'Whether the court could substitute an alternative community treatment order when no alternative treatment plan was before the tribunal or the court.']

Ratio Decidendi

Although Mr S required anti-psychotic medication and the treatment plan involving Risperdal Consta depot injections was appropriate and capable of implementation, the Court was not satisfied that the particular order was the least restrictive alternative consistent with safe and effective care. Mr S was likely to become non-compliant and relapse if under no legal obligation, but the evidence did not establish that relapse was likely under a less restrictive order permitting oral medication as an alternative to depot injections with regular review. Because no alternative treatment plan was before the Tribunal or the Court, the Court could not substitute such an order and set aside the...

Court Disposition

Appeal allowed; community treatment order set aside; application for the community treatment order dismissed; no order as to costs.

Orders

  • ['Order that the community treatment order made on 22 July 2009 be set aside.' 'Dismiss the application for the community treatment order.' 'No order as to costs, to the intent that each party bear its own costs.']