Re Refugee Tribunal; ex parte H [2001] HCA 28, 179 ALR 425; Hunter and New England Area Health Service v A [2009] NSWSC 761, 74 NSWLR 88, distinguished.

Judgment Number: [2020] TASSC 10

1. The appellant has appealed from two determinations that were made in relation to her by the Mental Health Tribunal. The right of appeal is conferred by s 174 of the Mental Health Act 2013 ("the Act"). The appellant suffers from schizophrenia. When unwell, she experiences distressing paranoid psychotic symptoms.
2. The background to these appeals can be summarised as follows:
   • On 22 March 2019 the Tribunal made a treatment order in respect of the appellant pursuant to s 39 of the Act. The order specified that it was to remain in effect until 21 September 2019 unless discharged sooner. Under s 42(2) of the Act, a treatment order is authority for a patient to be given treatment without informed consent. It can authorise a patient to be admitted to and, if necessary detained in, an "approved facility". The order was applied for by a medical practitioner.
   • On 31 May 2019 the Tribunal, constituted by Mr M Verney (the Chair), Ms C Brown and Dr E Walker, conducted a "60-day review" of the treatment order under s 181(1)(a) of the Act. It conducted a hearing that was attended by the appellant. She was represented by a legal practitioner from the Legal Aid Commission, Ms Irwin. At the conclusion of that hearing, the Tribunal made two minor variations to the treatment order, deleting references to anti-anxiety medication and radiological treatment. The result was that the order, as varied, was to continue in force until 21 September 2019. The chairperson of the Tribunal gave oral reasons for the Tribunal's decision at that time.
   • The appellant applied to the Tribunal for a written statement of its reasons for making the determination of 31 May. On 10 July 2019 the Tribunal provided a written statement of reasons.
   • On 9 August 2019 the appellant appealed from the decision of 31 May, seeking the discharge of the treatment order. That is the first of the two appeals before this Court.
   • On 6 September 2019 one of the appellant's treating doctors applied to the Tribunal under s 48 of the Act for the renewal of the treatment order.
   • On 13 September 2019 the Tribunal conducted a hearing of that application. It was constituted by Ms A Jordan (the Chair), Dr Martin Morrissey (a psychiatrist) and Ms C Brown. The appellant attended the hearing. She was represented by another legal practitioner from the Legal Aid Commission, Ms Campbell. At the conclusion of the hearing, the Tribunal renewed the treatment order, extending its operation until 20 March 2020. It also varied the order to remove references to two types of medication.
   • The appellant applied to the Tribunal for a written statement of the Tribunal's reasons for making the determination of 13 September. On 30 September 2019 the Tribunal provided a written statement of reasons.
   • On 1 November 2019 the appellant appealed from the determination of 13 September. That is the second appeal that is before this Court.
3. In both notices of appeal, the Tribunal was named as the only respondent to the appeal. That was inappropriate. The Tribunal is required to act impartially when it deals with applications made by medical practitioners and opposed by the individuals to whom the applications relate. The appropriate respondents in proceedings of this nature are the medical practitioners who made applications that were granted by the Tribunal. It may be highly undesirable for such medical practitioners to take any part in appeal litigation, particularly when they have an ongoing therapeutic role, but they are the only appropriate persons to be named as respondents. In this case, the Attorney-General has intervened in the proceedings and has acted as the sole contradictor. It was very appropriate for that course to be taken.
4. By virtue of s 174(3) of the Act, an appeal from a determination of the Tribunal may be brought to this Court as of right on a question of law, but only with the leave of the Court on any other question. Counsel for the appellant made it clear during the hearing of these appeals that such leave was not sought, and the appeals proceeded solely on the basis that the appellant contended that the Tribunal had made errors of law.

1. By virtue of s 39(1)(c) of the Act, the Tribunal may not make a treatment order in respect of a person unless it is satisfied that "the person meets the treatment criteria". Those criteria are listed in s 40, which reads as follows:

"The treatment criteria in relation to a person are -

(b) without treatment, the mental illness will, or is likely to, seriously harm -

(c) the treatment will be appropriate and effective in terms of the outcomes referred to in section 6(1); and

(d) the treatment cannot be adequately given except under a treatment order; and

(e) the person does not have decision-making capacity."

1. The grounds of appeal relating to the Tribunal's first decision on 31 May commence with three grounds relating to the treatment criteria.

"the Tribunal made an error of law when applying the criterion in s 40(b) of the Mental Health Act 2013 by interpreting that test to require only 'harm' rather than 'serious harm'".

1. The Tribunal's reasoning as to the s 40(b) criterion in its first decision appears in its reasons at [7] and [8]. Those paragraphs read as follows:

"[7] The Tribunal received clear evidence from the treating team that the patient, when unwell, experiences suicidal ideation, an escalation of paranoid ideas, and becomes distraught and tortured. The patient herself acknowledged that when unwell she becomes paranoid and hears voices. The Tribunal accepts that the exacerbation of these symptoms poses a harm to the patient's health or safety.

[8] The Tribunal is satisfied this treatment criterion is met."

1. The appellant contends that the last sentence of [7] reveals an error of law, on the basis that the Tribunal said that it accepted that the exacerbation of symptoms posed "a harm", as distinct from "a serious harm", to the appellant's health or safety. Section 40(b) uses the words "seriously harm".
2. I reject that submission. I think it is clear that the Tribunal was careless in its language. The reasons of administrative decision-makers should not "be construed minutely and finely with an eye keenly attuned to the perception of error": Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. In the Tribunal's reasons, immediately before [7], there appeared a heading that set out the words of s 40(b), including the words "seriously harm". Having regard to the evidence before the Tribunal on the first appeal, as summarised by it at [7], there was no reason to think that the Tribunal might have regarded the potential harm to the appellant's health, if she went without treatment, as less than serious. Ground 1 must fail.

"the Tribunal made an error of law when applying the criterion in s 40(b) of the Mental Health Act 2013 by finding that criterion to have been met in the absence of any evidence that the patient's mental illness will, or is likely to, seriously harm the patient's health or safety or the safety of other persons".

1. The question whether there is any evidence to support a finding of fact is a question of law: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 355. This ground cannot succeed unless there was no evidence from which the Tribunal could infer that the appellant's schizophrenia, if untreated, would, or was likely to, seriously harm her health and safety or the safety of other persons. At the hearing on 31 May, the evidence before the Tribunal included the following:
   • In a report for the purpose of the 60-day review, a treating psychiatrist wrote, "Risk of relapse of illness due to non-compliance. When unwell [the appellant] becomes too distraught at her perceived persecutions that she becomes at risk to herself. She had felt suicidal in the past due to her delusions."
   • In that report, the psychiatrist also wrote, "She is still insisting on stopping the antipsychotic medications despite the evidence that without medication she relapses into a florid psychotic state that she gets admitted to hospital."
   • In the original application for a treatment order, a different psychiatrist wrote that her then admission to a particular psychiatric clinic was the third in the previous three months; that she presented with paranoid delusions at the time of the first and second admissions; and that following her discharge after the first admission in December 2018 she did not take any antipsychotic medication. As to her condition at the end of the second admission, the psychiatrist wrote, "The patient at this point also began to express suicidal ideation in addition to her paranoid delusions. She had no insight and was not complaint [sic] with medication."
   • In that report the psychiatrist also wrote, "There is risk related to the patient continuing to act on delusions, refusing appropriate treatment and having a further deterioration in her mental state. Suicidal ideation had been part of her symptoms and could return and worsen."
   • During the hearing on 31 May, one of the appellant's treating psychiatrists gave evidence to the following effect. When admitted as a voluntary patient in 2018 her paranoid ideas escalated to a point where she was suicidal. He did not think she had gained any insight as to her illness since her previous admission. If a treatment order was not in force, she would definitely disengage with those treating her.
2. Sometimes people who have repeatedly thought about committing suicide go one step further and attempt to kill themselves. Sometimes such attempts are successful.
3. Section 40(b) is concerned with what is "likely". When that word is used in legislation, it can have various meanings. It can mean "more probable than not" or "more than a 50% chance". It can refer to something that might well happen. It can refer to a possibility that is more than a remote or theoretical possibility. The meaning of the word has been considered in a great many cases. See, for example, Boughey v The Queen (1986) 161 CLR 10; Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union [1979] FCA 85; (1979) 42 FLR 331 at 339; Cream Holdings Ltd v Banerjee [2003] EWCA Civ 103; [2003] 3 WLR 999. Much depends on the legislative context. It is significant that the principal purpose or object of s 40(b) is the protection of mentally ill persons and others from risks of harm. Having regard to the purpose and context of the provision, I consider that "likely" should be given a wide interpretation. It should not be interpreted as meaning "more probable than not". It must be interpreted as meaning something more than a remote or theoretical possibility. I think it should be interpreted as referring to something that might well happen. Having regard to the evidence that I have referred to, I consider that it was open to the Tribunal to conclude that, without treatment, the appellant's mental illness was "likely" to result in her killing herself. Ground 2 must therefore fail.

"the Tribunal made an error of law by reversing the criterion for capacity in s 7(1)(b)(iii) when applying that criterion in s 40(e) so as to require the appellant to satisfy it that she was able to weigh and use information in respect of treatment, in order to prove that she had capacity".

1. Section 7(1) of the Act relates to the meaning of the expression "decision-making capacity". It reads as follows:

"(1) For the purposes of this Act, an adult is taken to have the capacity to make a decision about his or her own assessment or treatment (decision-making capacity) unless a person or body considering that capacity under this Act is satisfied that -

(a) he or she is unable to make the decision because of an impairment of, or disturbance in, the functioning of the mind or brain; and

(i) understand information relevant to the decision; or

(ii) retain information relevant to the decision; or

(iii) use or weigh information relevant to the decision; or

(iv) communicate the decision (whether by speech, gesture or other means)."

1. The combined effect of s 9(1)(c) and s 40 is that a treatment order may not be made in respect of a person who "does not have decision-making capacity". By virtue of s 7(1)(b)(iii), it was not open to the Tribunal to conclude that the appellant lacked decision-making capacity unless it was satisfied that she was unable to make a decision about her own assessment or treatment because of an impairment of, or disturbance in, the functioning of the mind or brain, and that, amongst other things, she was unable to use or weigh information relevant to the decision.
2. In its reasons for the decision of 31 May, the Tribunal dealt with the issue of decision-making capacity at [13] and [14]. Those paragraphs read as follows:

"[13] (a) Once again the evidence before the Tribunal particularly from Dr ... is clear that the patient does not have insight into treatment for her mental illness.

(b) Whilst the Tribunal was told that the patient acknowledges the existence of the diagnosis referred to above, it is clear on the evidence that she does not associate the symptoms in respect of schizophrenia (such as paranoia and hearing of voices) with a mental illness nor does she associate the improvement as to those symptoms with the treatment that she has received.

(c) On this basis the Tribunal is not satisfied that the patient is able to weigh and use information in respect of any decision for treatment and is therefore satisfied that the patient does not have decision making capacity.

[14] The Tribunal is satisfied this treatment criterion is met."

1. Once again, the Tribunal was loose in its choice of words. In [13(c)], it said that it was "not satisfied that the patient was able to weigh and use information ...". It had to decide whether it was satisfied that the patient was unable to do that, not whether it was satisfied that the patient was able to do that. However this was plainly not a situation whether the Tribunal found itself in a state of equipoise, with the result that its finding depended upon one party or the other bearing an onus of proof. It is clear from subpars (b) and (c) that the Tribunal was satisfied that the appellant was unable to use or weigh information relevant to the making of a decision about her assessment or treatment because of her lack of insight into her condition. It follows that ground 3 must fail.

1. On 6 September 2018 the appellant completed and signed a document called an "Advance Directive for Mental Health Treatment". In that document she stated her wishes for future mental health treatment if she again became unwell, as follows:

"I would like to be given a single room and some space if I am put in ... Clinic again.

That I am not given any anti-psychotics (I have attached a letter from my psychologist in relation to this). I have reacted badly to these in the past and my health declines. I find diazapham [sic] and some sleeping medications help me.

I also need a place that is removed from excessive stimuli - somewhere quite [sic] and peaceful is good for me."

1. At the hearing on 31 May, the appellant's counsel, Ms Irwin, submitted that the appellant had made it clear in that directive that she did not consent to the taking of anti-psychotic medication; that she had the capacity to give consent to mental health treatment when she signed the directive; and that her stated wishes must be respected by the Tribunal.
2. However the Tribunal rejected her submission about the directive. At the conclusion of its reasons, it said the following:

"As a result of the hearing, the Mental Health Tribunal was satisfied that the treatment criteria were met and determined that the Treatment Order should be varied as referred to above.

During the hearing, the Tribunal heard detailed submissions in respect of the patient's 'advanced [sic] directive for mental health treatment'. This being a document that the patient executed on 6 September 2018.

Whilst the Tribunal accepts that in the absence of evidence to the contrary, the patient is deemed to have had decision making capacity at the time of executing the advanced directive, it is at the time of conducting the hearing that the Tribunal must determine whether the treatment criteria are met. It is noted above that the Tribunal was satisfied that the Treatment criteria in Section 40 of the Mental Health Act were indeed met.

The question therefore that the Tribunal needed to determine in respect of the advanced directive was what (if any) weight was to be attached to it.

There is no doubt that pursuant to Schedule 1 of the Mental Health Act the Tribunal must take into account the patient's wishes. It is in this way that the Tribunal accepts that some weight should be given to the advanced directive document. However only to the extent that any other evidence of a patient's wishes at any particular time should be taken into account.

Consequently the Tribunal accepts that as at 6 September 2018, the patient had made particular expressions as to her wishes in respect of treatment for mental health. However noting that the Tasmanian Legislation is silent as to documents such as the advanced directive document executed by the patient, the Tribunal gives that document no more weight than that.

The Tribunal is not satisfied that the advanced directive in any way limits the jurisdiction of the Tribunal under the Mental Health Act or in any way, with the Tribunal having found the treatment criteria met, should impede the operation of the Treatment Order.

The Treatment Order, as varied above, will continue until 21 September 2019 3:35pm unless it is discharged sooner."

1. Grounds 4 and 5 of the notice of appeal relating to the first decision read as follows:

"4 the Tribunal made an error of law in not accepting that an earlier decision made with capacity, such as an advanced [sic] care directive, could constitute 'a decision' when considering whether a person is 'unable to make a decision' under the criterion for capacity in s 7(1)(a), contrary to the legislative recognition in s 8(1)(a) that a decision made by a person with capacity in the past can be applied at a future time when that person may lack capacity;

1. the Tribunal made an error of law by failing to exercise its s 181 review functions in accordance with schedule 1 items (a), (j) and (m), in the context of the appellant having made an advanced care directive, which is the prospective exercise of a patient's common law right to decide what should be done to her own body."
2. Grounds 3 and 4 of the second notice of appeal are in identical terms. At the hearing on 13 September, the appellant's counsel, Ms Campbell, made a submission about the status of the advance care directive that was similar to that made by Ms Irwin at the first hearing. She was interrupted by members of the Tribunal many times during her submission. The Tribunal dealt with the submission in its reasons at [24]-[29]. Those paragraphs read as follows:

"The treatment cannot be adequately given except under a treatment order

1. During the hearing Ms Campbell submitted that the Tribunal should give respect to and in fact is legally bound by the Advance Care Directive wherein [the appellant] expressed her wish to not have antipsychotic medication. This submission was raised before and adjudicated upon by another Tribunal on 31 May 2019 where upon that Tribunal was satisfied that all the section 40 criteria was [sic] satisfied. Whilst this Tribunal accepts that [the appellant] has completed an Advance Care Directive which states certain matters relating to the treatment she receives for her mental illness this Tribunal is not satisfied that the Advance Care Directive stands to prevent the application of the Mental Health Act 2013 nor that it should be given greater weight than the other evidence relevant to this criteria [sic].
2. Section 6 of the Act defines 'treatment'. The Tribunal accepts the evidence of the Treating Team as to the treatment necessary for [the appellant's] mental illness. Furthermore the Tribunal finds that as a consequence of [the appellant's] longitudinal opposition to that recommended treatment (such opposition supported by the Advance Care Directive) treatment cannot be adequately given except under a Treatment Order. In other words a Treatment Order is necessary to enable treatment. The Tribunal finds that without a Treatment Order [the appellant] will cease taking medication, further disengage with mental health services and relapse.
3. The Tribunal is satisfied this treatment criterion is met.

The patient does not have decision making capacity.

1. The Tribunal repeats the comments above in relation to the Advance Care Directive. Whilst this Tribunal does not have to make determination as to the validity of the of the Advance Care Directive it is questionable if [the appellant] had decision making capacity to complete the Advance Care Directive in light of the chronicity of [the appellant's] illness and her longstanding lack of decision making capacity. Noting that [the appellant] has been subject to orders under the Act on 21 April 2014, 5 September 2014, 22 July 2016, 5 August 2016, 29 January 2019, 15 March 2019 and 31 May 2019.
2. The evidence supports a finding that [the appellant] has a mental illness that requires treatment. The Tribunal finds that the evidence supports [the appellant's] longitudinal resistance to antipsychotic medication. [The appellant] lacks any insight and understanding as to the nature of her illness, the implications of treatment or no treatment, the severity of the risk of relapse and the risks she presents to herself and others when unwell. Her impairment has a direct impact on her capacity to make decisions about her mental health treatment. She is unable to understand and process the information regarding her mental health. By virtue of her illness she lacks decision making capacity to provide informed consent for treatment.
3. The Tribunal is satisfied this treatment criterion is met."
4. At the hearing of these appeals, counsel for the appellant argued forcefully that, both because of provisions in the Act and by virtue of the common law, the Tribunal was obliged to give effect to the appellant's directive that she was not to be given any anti-psychotic medication. She argued that, in the light of that directive, the giving of such medication to the appellant against her will would constitute a battery at common law. She also relied upon a number of provisions in the Act relating to the stated wishes of individuals.
5. Section 15 of the Act provides as follows:

"All persons exercising responsibilities under this Act are to have regard to the mental health service delivery principles set out in Schedule 1."

"1 The mental health service delivery principles are as follows:

(a) to respect, observe and promote the inherent rights, liberty, dignity, autonomy and self-respect of persons with mental illness;

(b) to interfere with or restrict the rights of persons with mental illness in the least restrictive way and to the least extent consistent with the protection of those persons, the protection of the public and the proper delivery of the relevant service;

(i) to recognise, observe and promote the rights, welfare and safety of the children and other dependants of persons with mental illness;

(j) to promote the ability of persons with mental illness to make their own choices;

(k) to involve persons receiving services, and where appropriate their families and support persons, in decision-making;

(l) to recognise families, and support persons, of persons with mental illness as partners, with mental health service providers, in the provision of their treatment and care to the extent that this is appropriate and consistent with their own wishes;

(m) to respect the wishes of persons receiving services, and the wishes of their families and support persons, to the maximum extent consistent with the health and safety of those persons and the safety of others;

1. The objects of the Act are listed in s 12. They include the following:

"(d) to provide for such assessment and treatment to be given in the least restrictive setting consistent with clinical need, legal and judicial constraints, public safety and patient health, safety and welfare;

(e) to promote voluntary over involuntary assessment and treatment and the making of free and informed assessment and treatment choices".

1. The circumstances in which treatment may be given to an involuntary patient in the appellant's circumstances are set out in s 16(2)(a) of the Act, which reads as follows:

"(2) The following policy governs the treatment of involuntary patients under this Act who are not forensic patients or involuntary patients to whom section 66 applies:

(a) an involuntary patient may be given treatment -

(ii) if the treatment is authorised by a treatment order; or

(iii) if the treatment is urgent circumstances treatment, the treatment is authorised under section 55".

1. By virtue of s 62 of the Act, every involuntary patient has certain rights, including the following:

"(a) the right to have the restrictions on, and interference with, his or her dignity, rights and freedoms kept to a minimum consistent with his or her health or safety and the safety of other persons;

(b) the right to have his or her decision-making capacity promoted, and his or her wishes respected, to the maximum extent consistent with his or her health or safety and the safety of other persons".

1. Counsel for the appellant relied heavily on the decision of McDougall J in Hunter and New England Area Health Service v A [2009] NSWSC 761, 74 NSWLR 88. That case concerned an unconscious hospital patient who was being kept alive by mechanical ventilation and kidney dialysis. About a year earlier, he had signed an advance care directive indicating that he would refuse dialysis. The authority that operated the hospital in which he was a patient applied for a declaration that it was justified in complying with his wishes by ceasing to administer dialysis. Death would ensue if dialysis were ceased. McDougall J concluded that the advance care directive represented a considered decision that the patient was in law capable of making; that it was his voluntary decision; and that the intention expressed in the document was one to which the hospital authority was required to give effect. There was no legislation relating to the status of the advance care directive. His Honour based his decision on the common law, having undertaking a thorough review of the relevant authorities.
2. At [41] his Honour listed 11 principles, as follows:

"(1) Except in the case of an emergency where it is not practicable to obtain consent (see at (5) below), it is at common law a battery to administer medical treatment to a person without the person's consent. There may be a qualification if the treatment is necessary to save the life of a viable unborn child.

(2) Consent may be express or, in some cases, implied; and whether a person consents to medical treatment is a question of fact in each case.

by the person concerned, if that person is a capable adult;

by the person's guardian (under an instrument of appointment of enduring guardian, if in effect; or by a guardian appointed by the Guardianship Tribunal or a court);

by the spouse of the person, if the relationship between the person and the spouse is close and continuing and the spouse is not under guardianship; by a person who has the care of the person;

(4) At common law, next of kin cannot give consent on behalf of the person. However, if they fall into one or other of the categories just listed (and of course they would fall into at least the last) they may do so under the Guardianship Act.

(5) Emergency medical treatment that is reasonably necessary in the particular case may be administered to a person without the person's consent if the person's condition is such that it is not possible to obtain his or her consent, and it is not practicable to obtain the consent of someone else authorised to give it, and if the person has not signified that he or she does not wish the treatment, or treatment of that kind, to be carried out.

(6) A person may make an 'advance care directive': a statement that the person does not wish to receive medical treatment, or medical treatment of specified kinds. If an advance care directive is made by a capable adult, and is clear and unambiguous, and extends to the situation at hand, it must be respected. It would be a battery to administer medical treatment to the person of a kind prohibited by the advance care directive. Again, there may be a qualification if the treatment is necessary to save the life of a viable unborn child.

(7) There is a presumption that an adult is capable of deciding whether to consent to or to refuse medical treatment. However, the presumption is rebuttable. In considering the question of capacity, it is necessary to take into account both the importance of the decision and the ability of the individual to receive, retain and process information given to him or her that bears on the decision.

(8) If there is genuine and reasonable doubt as to the validity of an advance care directive, or as to whether it applies in the situation at hand, a hospital or medical practitioner should apply promptly to the court for its aid. The hospital or medical practitioner is justified in acting in accordance with the court's determination as to the validity and operation of the advance care directive.

(9) Where there is genuine and reasonable doubt as to the validity or operation of an advance care directive, and the hospital or medical practitioner applies promptly to the court for relief, the hospital or practitioner is justified, by the emergency principle, in administering the treatment in question until the court gives its decision.

(10) It is not necessary, for there to be a valid advance care directive, that the person giving it should have been informed of the consequences of deciding, in advance, to refuse specified kinds of medical treatment. Nor does it matter that the person's decision is based on religious, social or moral grounds rather than upon (for example) some balancing of risk and benefit. Indeed, it does not matter if the decision seems to be unsupported by any discernible reason, as long as it was made voluntarily, and in the absence of any vitiating factor such as misrepresentation, by a capable adult.

(11) What appears to be a valid consent given by a capable adult may be ineffective if it does not represent the independent exercise of persons volition: if, by some means, the person's will has been overborne or the decision is the result of undue influence, or of some other vitiating circumstance."

1. It should be noted that McDougall J commented that these principles will not apply in every conceivable circumstance, and also that he was referring to the statute law of New South Wales in relation to the powers of guardians and that State's Guardianship Tribunal.
2. That case is a very important one, but it is distinguishable. In that case, there was no question of anyone having a statutory right to administer medical treatment contrary to the patient's wishes. However this case does concern such a question.
3. It is clear that the Act gives the Tribunal the power to make or continue a treatment order that authorises medical treatment of a type inconsistent with a patient's wishes, and that the Act's requirements in relation to respecting the rights and wishes of individuals are by no means absolute. Clause 1(m) of Sch 1 calls for person exercising responsibilities under the Act "to respect the wishes of persons receiving services ... to the maximum extent consistent with the health and safety of those persons and the safety of others". Consistently with that provision, the Tribunal has the power to make an order that is inconsistent with the wishes of a patient, giving priority to the health and safety of that patient and the safety of others. The relevant objects of the Act, as listed in s 12, go only so far as to express a preference for "voluntary over involuntary ... treatment and the making of free and informed ... treatment choices" in s 12(e). Section 16(2)(a)(ii) authorises an involuntary patient to be given treatment that is authorised by a treatment order, as an alternative to treatment with informed consent under s 16(2)(a)(i).
4. It is true that the Act is a piece of modern legislation that reflects a substantial change of attitude towards the rights, dignity and wishes of mental health patients. The corresponding statute in Victoria, the Mental Health Act 2014 (Vic) contains lists of objects and principles in ss 10 and 11 similar to those in Tasmania's s 12 and Sch 1. In PBU v Mental Health Tribunal [2018] VSC 564 at [67] Bell J, speaking of the Victorian statute said, "... the objectives and principles are intended to alter the balance of power between medical authority and persons having mental illness in the direction of respecting their inherent dignity and human rights".
5. I turn to the grounds of appeal concerning the advance care directive. Ground 4 in the first appeal and ground 3 in the second each assert that the Tribunal made an error of law in considering whether, in the words of s 7(1)(a) of the Act, the appellant was "unable to make the decision", that decision being a decision about her treatment. Section 7(1) uses the present tense. The Tribunal was required, on each occasion, to determine whether the appellant was unable to make a decision about her treatment as at the time of its hearing. The wishes of the appellant expressed in the past in her advance care directive were a relevant consideration that the Tribunal was obliged to consider when exercising its discretion if it concluded that the criteria for the making of a treatment order were all satisfied. However the question whether the appellant was unable to make a decision about her treatment was a question of fact. The existence and exercise of decision-making capacity in the past may have been relevant to that question of fact. But it cannot be said that the Tribunal, at either of its two hearings, erred in law when addressing s 7(1)(a) and taking account of the advance care directive.
6. Each of these grounds of appeal goes on to refer to "the legislative recognition in s 8(1)(a) that a decision made by a person with capacity in the past can be applied at a future time when that person may lack capacity". Section 8(1)(a) provides that "a medical practitioner may regard a person's consent to an assessment or a treatment as being informed consent if satisfied that ... the person, at the time of giving the consent, has decision-making capacity". That provision is consistent with the common law, as expounded in Hunter and New England Area Health Service v A (above). However statutory recognition of the proposition that a person with decision-making capacity can make a decision as to treatment that endures after loss of that capacity provides no support for these grounds of appeal. The Tribunal was required to consider the appellant's decision-making capacity as at the time of each of its hearings, and did not err in law in doing so.
7. Ground 5 in the first appeal and ground 4 in the second appeal each assert that the Tribunal erred in law by failing to exercise its functions in accordance with the principles set out in pars (a), (j) and (m) in Sch 1 to the Act. The status of those principles is governed by s 15 of the Act. It required the Tribunal "to have regard to the mental health service delivery principles set out in Schedule 1". In other words, those principles were relevant considerations. They were not necessarily paramount or dominant considerations. By virtue of par (a), the Tribunal was required to have regard to the principle of respecting, observing and promoting "the inherent rights, liberty, dignity, autonomy and self-respect of persons with mental illness". By virtue of par (j) the Tribunal was required to have regard to the principle of promoting "the ability of persons with mental illness to make their own choices". By virtue of par (m), the Tribunal was required to have regard to the principle of respective "the wishes of persons receiving services ... to the maximum extent consistent with the health and safety of those persons and the safety of others".
8. In each of its decisions, the Tribunal took into account the appellant's wishes as expressed in the advance care directive, as well as her wishes as at the time of the relevant hearing, decided how much or how little weight to give to those wishes, and made a decision contrary to those wishes, for cogent reasons. Although its reasons were brief, I am not satisfied that it ignored or lost sight of the relevant principles. Rather, it decided to give substantial weight to its conclusion that the appellant was likely to be a risk to herself and others if she were not given anti-psychotic medication. Ground 5 of the first appeal and ground 4 of the second appeal must therefore fail.

1. In the second appeal, the appellant contends that the Tribunal "made an error of law by proceeding to make a decision whilst affected by either actual or apprehended bias". This ground was pursued on the basis of comments made by Tribunal members during the 13 September hearing, comments made in the written reasons for the 13 September decision, and comments by Tribunal members in communications after the 13 September hearing.
2. At that hearing there was evidence before the Tribunal that the appellant had experienced suicidal ideation in the past, and that she had been admitted as an involuntary patient on three occasions because of her mental illness. Her counsel, Ms Campbell, sought to persuade the Tribunal that the evidence was insufficient for it to be satisfied of the s 40(b) criterion. That is to say, she sought to persuade the Tribunal that it could not be satisfied that the appellant's mental illness was likely to seriously harm her health or safety. She argued that, although the appellant developed suicidal thoughts when she was unwell, there was no history of suicide attempts, and that suicidal ideation on its own was not evidence of a risk of serious harm.
3. The chairperson, Ms Jordan, interrupted, apparently to check whether that was really what counsel was submitting. Then Dr Morrissey interrupted. The discussion proceeded as follows:

"DR MORRISSEY: Are you aware that a deterioration in a person's health is something that we need to consider? It's not just whether they're running around killing people with an axe?

MS CAMPBELL: Absolutely, absolutely; I understand that.

DR MORRISSEY: So you're submitting that someone who experiences suicidal ideation as a result of a relapse of their symptoms, someone that requires three admissions to hospital because of a deterioration in their mental state, who has repeated admissions because of non-compliance - are you putting your name to a statement that says you don't regard that as serious?

MS CAMPBELL: I'm saying that suicidal - I'm being very specific in addressing each one, doctor, and

DR MORRISSEY: On what basis do you say that's not serious?

MS CAMPBELL: Because in the absence - well, that's my submissions and that's my instructions, to make that submission.

DR MORRISSEY: But we've heard to the contrary, so why do you keep putting these submissions to us?

MS CAMPBELL: Because that is my instructions and lawyers have a duty to ...

DR MORRISSEY: But hang on, you need to sort out what you're being told and what appears to be appropriate to submit.

MS CAMPBELL: Yes, and it is my view that it is appropriate to submit that. It might not be something that the Tribunal ...

DR MORRISSEY: So on the basis of your legal background, you're saying that you disagree with a psychiatrist and the team who have known this person for a number of years?

DR MORRISSEY: And that suicidal ideation in the context of a relapse of illness isn't important? Is that what you're saying?

DR MORRISSEY: I suggest you really think carefully about how you answer this.

MS CAMPBELL: What I'm saying is that there is a very high bar and the evidence that is ...

MS JORDAN: But does it get any higher in the context of what Martin has just beautifully outlined to you? Does it get any higher? The result of suicide is finality - in, done.

1. There is no need for me to set out the rest of the discussion in full. Ms Campbell continued to try to explain that she considered it her duty to make submissions in accordance with her instructions. Ms Jordan suggested that Ms Campbell might be making submissions that were inconsistent with the requirements of the Legal Aid Commission as to the provision of funding and as to clients not accepting advice. She suggested that Ms Campbell was expressing a personal view.
2. The Tribunal's written reasons contained the following, at [20]:

"The evidence before the Tribunal sets out the risks of serious harm to [B] and or others if her mental illness goes untreated. The evidence is significant and compelling. The Tribunal finds that without treatment [B] will cease medication, further disengage from mental health services, be at risk of marked deterioration and relapse (noting 3 admissions between December 2018 and March 2019), when unwell she has had symptoms of disorganized behavior [sic], persecutory delusions and suicidal ideation. The Tribunal finds that [B] does not accept these risks as serious. The Tribunal does not accept Ms Campbell's submissions in relation to this criteria [sic]. To suggest that [B's] experience in suicidal ideation as a result of psychotic relapse brought on my non-compliance with treatment might not be of serous concern in a general sense and in relation to the Act is highly inappropriate in light of the evidence before the Tribunal."

1. In the last sentence of that paragraph, the Tribunal was not stating a finding of fact or its reasons for making a finding of fact, but was criticising the conduct of Ms Campbell.
2. On 17 September 2019 Dr Morrissey wrote to the President of the Tribunal expressing his concern regarding the conduct of Ms Campbell at the hearing on 13 September. After summarising the evidence about the appellant's diagnosis, history, symptoms, treatment and prognosis, he made the following comments about Ms Campbell:

"On [the appellant's] behalf, Ms Campbell submitted to the tribunal that the risks to [the appellant] were not of sufficient gravity to meet the relevant section 40 criteria ie that without treatment, the mental illness will or is likely to seriously harm i) the persons [sic] health or safety or ii) the safety of others.

In other words Ms Campbell asserted repeatedly that as a consequence of stopping treatment, [the appellant] becoming so unwell as to warrant repeated hospitalisation, and experiencing suicidal ideation as a result of the symptoms of illness relapse, in her opinion, did not satisfy the relevant section 40 criterion. Ms Campbell stated this view repeatedly when challenged by both myself (psychiatrist member) and Ms Anna Jordan (Chair). She presented no evidence however to refute that of the treating team regarding their concerns.

I believe the views expressed by Ms Campbell in relation to this matter are ill informed, inappropriate and dangerous. In particular, to suggest that a patient experiencing suicidal ideation as a result of psychotic relapse brought on by non-compliance with treatment might not be of serious concern in a general sense and in relation to the MHA [Mental Health Act] is highly inappropriate both in light of evidenced based treatment and, I would suggest, the expectations of the community.

Further, Ms Campbell appears to have a poor understanding of the difference between the expressed views of her client and what might be appropriate submissions to the tribunal, the latter incorporating a weighing of the evidence presented at the hearing as it relates to the client, combined with an expert knowledge of the legislation including its underlying principals [sic] as well as to act in the best interests of her client.

Ms Campbell also raised at length an argument that the tribunal should consider the contents of an Advance Directive filled out by [the appellant] on 6th October 2018 indicating [her] wish not to have antipsychotic medication. This matter was raised in the last tribunal hearing relating to [her] and dealt with at that time. It therefore seemed inappropriate to raise this matter again at this hearing. (I would add that in light of the chronicity of [the appellant's] illness and her longstanding lack of insight, I would have serious concerns as to her capacity to complete such a document in an informed manner at the time she did.) The hearing ran at least 40 minutes over the allotted time by 40 minutes occupying the time of three clinicians hearing irrelevant legal discussion.

I understand that Ms Campbell has a senior role within LACT [Legal Aid Commission of Tasmania] in relation to mental health matters. This includes mentoring other LACT solicitors who represent those coming before the MHT [Mental Health Tribunal]. Indeed a junior colleague of Ms Campbell's attended this hearing. It is of serious concern that Ms Campbell not only holds the views detailed above but is likely to be encouraging her junior colleagues to take such an approach.

I believe it is incompatible for Ms Campbell to act in her current role for what are a very vulnerable section of society, whilst she holds the views regarding her role that were exhibited today."

1. On 24 September 2019 the President of the Tribunal wrote to the then Director of Legal Aid about the submissions made by Ms Campbell at the hearing. The letter reveals that the Tribunal Chair, Ms Jordan, phoned her about Ms Campbell's submissions immediately after the hearing, and that both Ms Jordan and Dr Morrissey subsequently came to see her to discuss concerns about Ms Campbell's representation of the appellant at the hearing. Her letter repeated the criticisms made by Dr Morrissey in his letter to her.
2. The appellant was entitled to be represented in the Tribunal proceedings by "an Australian legal practitioner, advocate or other person": the Act, Sch 4, Pt 2, cl 7(3). Ms Campbell did not have any statutory or ethical duty to make submissions as to what was in her client's best interests if such submissions would conflict with the wishes of her client. Nothing that she said during the hearing indicated that she was expressing a personal view, rather than presenting an argument, in accordance with her instructions, to the effect that the statutory treatment criteria were not met, and that the treatment order should therefore not be renewed. There are times when counsel consider it their duty to make submissions to a court or a tribunal, knowing that it is inevitable, or practically inevitable, that the submissions will be rejected. In such circumstances, it is sometimes wise not to make the submissions very forcefully. Ms Campbell may well have wished to avoid the risk of her client terminating her instructions and continuing unrepresented. While she was representing her client, it was her duty to make submissions in accordance with her client's instructions, and to make them fearlessly. It is clear that Ms Jordan and Dr Morrissey misunderstood the role and duty of counsel. That is unfortunate, but it does not necessarily follow that the Tribunal's determination can be impeached on the basis of actual or apprehended bias.
3. Actual bias exists when a decision-maker is "so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented": Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17, 205 CLR 507 per Gleeson CJ and Gummow J at [72]. As to apprehended bias, a decision-maker is disqualified if a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of a question that he or she is required to decide: Ebner v Official Trustee in Bankruptcy [2000] HCA 63, 205 CLR 337, per Gleeson CJ, McHugh, Gummow and Hayne JJ at [6]. In Re Refugee Tribunal; ex parte H [2001] HCA 28, 179 ALR 425. At [28], the High Court (Gleeson CJ, Gaudron and Gummow JJ) said:

"Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias."

1. That case concerned an application by a married couple from Sri Lanka. Their credibility was in issue. The tribunal member constantly interrupted and challenged the husband's evidence. The High Court concluded, at [32], that a fair-minded lay observer or a properly informed lay person might well infer, from constant interruptions of the husband's evidence, and constant challenges to his truthfulness and to the plausibility of his account of events, "that there was nothing he could say or do to challenge the tribunal's preconceived view that he had fabricated his account of the events upon which he based his application". However it is very significant that that case concerned the rejection of evidence of past facts, whereas this case concerned a specialist tribunal and matters of medical opinion.
2. In that case at [29], their Honours said that, in applying the test for apprehended bias to an administrative tribunal, "the non-curial nature of the body or tribunal in question and the different character of the proceedings must ... be taken into account."
3. When the Tribunal is constituted by three members, s 170(6)(b) of the Act requires the chairperson to be an Australian lawyer. There is no requirement that the chairperson be a practising lawyer. The Tribunal is required to "proceed with as little formality and as much expedition as a proper consideration of the matter before it allows": the Act, Sch 4, Pt 2, cl 5(a).
4. The Tribunal is not required to listen to submissions in silence. It must often be appropriate for tribunal members to test the merits of submissions made to them by engaging in robust discussion.
5. One important distinction between a court and a specialist tribunal is that, whilst courts are required to consider issues afresh on a case by case basis, it can be appropriate for a specialist administrative decision-maker to come to a case with a predisposition towards a particular conclusion in particular circumstances. In Minister for Immigration and Multicultural Affairs v Jia Legeng (above), Hayne J said, at [187]:

"In the case of a court, it will usually be self-evident that the issue, if an issue of fact, is one which ought to be considered afresh for the purposes of the particular case by reference only to the evidence advanced in that case. Other decision-makers, however, may be under no constraint about taking account of some opinion formed or fact discovered in the course of some other decision. Indeed ... the notion of an 'expert' tribunal assumes that this will be done. ... It is critical, then, to understand that assessing how rules about bias, or apprehension of bias, are engaged depends upon identification of the task which is committed to the decision-maker. The application of the rules requires consideration of how the decision-maker may properly go about his or her task and what kind or degree of neutrality (if any) is to be expected of the decision-maker."

1. Section 167(2)(b) of the Act requires the Tribunal to include at least one person who is a psychiatrist. It is unrealistic to expect any psychiatrist, or any experienced member of the Tribunal, to come to each case without any predisposition as to the circumstances in which a person's mental illness, without treatment, is likely to seriously harm the person's health or safety or the safety of other persons - that is, as to the treatment criterion in s 40(b). In the circumstances, it was not unreasonable for members of the Tribunal to challenge, bluntly and robustly, the submission that the s 40(b) criterion was not satisfied. It is unfortunate that two Tribunal members formed the view that it was inappropriate for Ms Campbell to make a submission that that criterion was not satisfied. However it cannot be said that a fair-minded lay observer or a properly informed lay person might well infer from the conduct of the Tribunal members that they might not have brought impartial minds to the resolution of the question whether the treatment order should be renewed.
2. Similarly, the evidence as to the conduct of the Tribunal members during and after the hearing does not satisfy me that any of them was so committed to a conclusion that the treatment order should be renewed as to be incapable of making any other determination, regardless of any evidence or arguments that might have been presented to them.
3. For these reasons, I reject the appellant's arguments as to bias and apprehended bias.

1. Ground 2 of the second notice of appeal reads as follows:

"2 the Tribunal made an error of law by finding there was no medical or expert evidence in relation to the side effects of the medication that were asserted by the Appellant, when there was such evidence before the Tribunal."

1. In its reasons for the second decision, at [16], the Tribunal summarised the submissions made by Ms Campbell. In that summary the Tribunal said that Ms Campbell stated that the appellant "suffers from side effects of the antipsychotic medication of 'effect her voice', 'her pain situation', 'muscle spasiums' [sic], 'weight gain' and 'the side effects in the Treatment Plan'." It continued that the appellant "also endorsed these side effects". It then said that Ms Campbell "does not have any medical or expert evidence in relation to the side effects asserted."
2. It is true that Ms Campbell did not call any medical or expert evidence as to the side effects of anti-psychotic medication. However the application for the renewal of the treatment order, which was before the Tribunal, contained information that the appellant had mentioned having the side effects that were referred to by Ms Campbell, and that she had said that she did not wish to be "on antipsychotic treatment long term due to side effects". In another document before the Tribunal, a treatment plan dated 12 July 2017, a medical practitioner stated that common side effects of anti-psychotic medications include extrapyramidal side effects, metabolic syndrome, hyperprolactinemia and weight gain. The appellant relies on that list as expert medical evidence in relation to side effects that was before the Tribunal.
3. As I have already said, the question whether there is any evidence to support a finding of fact is a question of law: Australian Broadcasting Tribunal v Bond (above) at 355. The appellant contends that the Tribunal erred in law when it said that Ms Campbell did not have any medical or expert evidence in relation to the side effects asserted.
4. I reject that submission. I interpret the critical sentence in the Tribunal's reasons as meaning only that Ms Campbell did not call any medical or expert evidence about side effects. As I said at [10] above, the reasons of administrative decision-makers should not "be construed minutely and finely with an eye keenly attuned to the perception of error".
5. In its reasons at [22], the Tribunal said the following:

"The Tribunal is satisfied that the benefits of treatment outweigh the detrimental side effects alleged by [the appellant]. The Tribunal accepts the evidence that the Treating Team that the medication for [the appellant's] mental illness is not causing the side effects alleged by [the appellant]."

1. The Tribunal did not overlook the appellant's assertions as to side effects. The list of well known side effects in the treatment plan did not amount to an assertion by the author of that document that the appellant was suffering from any of the listed side effects. The Tribunal was entitled to take into account the evidence of the "Treating Team", as well as the expert knowledge of its psychiatrist member. I am not persuaded that the Tribunal made any error of fact or law in relation to the appellant suffering or potentially suffering side effects from anti-psychotic medication. Ground 2 must therefore fail.

1. I have rejected all of the grounds of appeal in respect of each appeal. Each appeal is dismissed.