Reference no: EM13939188

D. APPLYING THE CRITERIA IN SECTION 8(1) TO KM

Determining whether or not the criteria in s8(1) applied to KM required the Board to reach a conclusion in relation to five questions.

1. Did KM appear to be mentally ill?

KM challenged this criterion and stated in evidence that she had "depressive" symptoms related to a workplace bullying episode approximately ten year ago in which she obtained some workcover payments.

However, an examination of the clinical notes and the oral evidence was sufficient for the Board to conclude that KM suffers from a mental illness characterized by significant disturbances of thought, perception and mood. This criterion was therefore met.

2. Did KM's mental illness require immediate treatment and could it be obtained by her being subject to an involuntary treatment order?

KM appeared to understand the need to receive treatment for what she termed her "depression" but did not see the need for treatment for a mental illness she did not accept she had. Before her admission in June this year KM reported that the medication was in fact "poisoning her." The treating team reported a high risk of relapse if KM went untreated and needed treatment to prevent this from happening.

It is an important principle for the Board in its deliberations that the benefits of treatment outweigh the side effects. In the case of Appeal of NG (1995) 2 MHRBD (Vic) 276, the Board, at page 280, stated, ‘It is common when dealing with this criterion to look at the benefits, actual or anticipated, of the treatment proposed. However, it should be not be ignored that in some cases there may be adverse effects from the treatment, and in these situation the Board must be satisfied that overall the benefits outweigh the disadvantages.'

KM argued that the claimed benefits of the treatment did not outweigh the detrimental impacts which included weight gain, increased irritability, restlessness, rashes, cramp and stiffness. There are often adverse side effects to treatment and this is amply evident in this case. It was clear that the treating team has tried different approaches in a difficult therapeutic environment.

In this case given the history presented, the efforts of the treating team to manage the medication dosage and their justification of its necessity as well as the likely consequences of relapse it is considered that the benefits do outweigh the disadvantages.

The Board was satisfied that KM's illness requires further consistent and on-going treatment to prevent any further relapses. This criterion was therefore met.

3. Due to KM's mental illness was involuntary treatment necessary for her health or safety, or for the protection of members of the public?

The Board in the past has provided a number of tests to examine this question. In The Review Of P 07-053 VMHRB (18 October 2006)there is described the principal which the Board has historically used in interpreting this Section, that not only must there be a substantial risk of non-compliance, but that the consequences of that non-compliance must be significant. In fact the Board has conceptualised the risk in a number of ways to be either a "real" risk (see re The Review of BC (1987) 1MHRBD (VIC) 26) or alternatively a "significant" risk: see for example The Appeal of HL (1997) MHRBD (VIC) 485.

The Board accepts the submissions made by the treating team that KM meets the requirements of this sub-section of the Act.

There was considerable evidence from the extensive clinical notes and the Report of various risks. For example, the following excerpt from paragraph 1.4 is illustrative(sic):"19.4.13 Quite guarded with her thoughts. Believes she contributed to Margaret Thatchers death, unable to explain as stating "you wont understand". Still experiencing intrusive voices. "Im fucked ...theres no point in telling
you ...nothing can be done". Active thoughts to cause her death "its all mathematical. ..if l die others will stop dying".

13.4.13 Complaining of "voices" of a derogatory nature telling K to harm herself which have reportedly "come
back" at lunch time today. Reports she tells them to "shut up" at times but says that it doesn't always work."

Further, paragraph 3 of the same report states:

"Chronic suicidal ideation with intermittent acute exacerbations. Previous suicide attempts including medication OD
Increased concern when major protective factors (K's dogs) are not in her care ...K has been known to take her dogs to the kennel 'to make them safe before "I go'" (Admission notes 5/10/2011)."

These excerpts are consistent with the history revealed by the clinical and other material available in KM's file. KM denied or stated that these matters were a "conspiracy" against her. On balance the Board has come to the conclusion that the evidence in support of this criteria being met is strongly supported at the present time.

4. Had KM refused or was she unable to consent to the necessary treatment for her mental illness?

In making a decision about this criterion, the Board needed to consider if KM was capable of making an informed choice about her treatment. Taking into account the overall circumstances of the case, and the way in which KM was responding to treatment, the Board concluded that on the balance of probabilities this criterion was satisfied. It was not apparent that KM's understanding of her situation was sufficient to cause the Board to consider the matter differently (see Re the appeal of 03-057 [2002] VKMRB 11) and, in the Board's view, does not amount to an ability to consent to the necessary treatment for her mental illness; see Re The Review of P 01-079 [2001] VKMRB (31 January 2001); Appeal Of P 03-057 [2002] VKMRB11.

As noted KM does not appear to accept that she has a mental illness and attributes some symptoms of depression to a past workplace issue. She believes, in effect, that she has been misunderstood and/or conspired against. The available history of psychiatric treatment would appear to reveal otherwise and the evidence at the hearing and that provided through the clinical notes at the hearing was consistent with this history and an inability of KM to understand or have insight into her own condition to be able to give consent as provided for in the Act.

The history of KM's illness indicates an ongoing need for psychiatric treatment to treat her mental illness. The Board was concerned that if not on the community treatment order KM would become unwell again and relapse. She would likely refuse treatment if taken off this order. This could have extremely deleterious impacts on her health both in the short term and probably longer term.

The Board therefore found this criterion to be met.

5. Could KM receive adequate treatment for her mental illness in a manner that was less restrictive of her freedom of decision and action?

It was clear that in the circumstances of and the context of KM's mental illness that a less restrictive treatment regime was not practical or feasible at this time. The provision of voluntary treatment would, in the Boards' view, at the time of the hearing, be not possible and indeed would be counterproductive: see In Re the Review of EF (2006) 2 KMRBD (VIC) 346.

From the evidence presented, the Board was not confident that if discharged from the community treatment order KM would be able to receive the necessary treatment. Her lack of insight, the nature of his condition and her social circumstances all militated against voluntary treatment at the time of the hearing.

Accordingly, the Board found that this criterion was also met.

D. REVIEW OF KM's TREATMENT PLAN

The Board was not satisfied that the authorised psychiatrist has complied with s19A in making, reviewing or revising the treatment plan, and that the plan is capable of being implemented by the approved mental health service. This was because it was out of date at the time of the hearing and needed to be updated. The Board orders the review and updating of the treatment plan.