Mental Health Act 2013 (Tas); ss, 4, 6, 7, 12, 15, 40, 49, 179, 181, Sch 1.

B v Mental Health Tribunal [2020] TASSC 10;

CMB v Mental Health Tribunal [2021] TASFC 4;

S v Mental Health Tribunal [2016] TASSC 34.

The decision has been anonymised for the purpose of publication.

1. EDH (the patient) is a 65 year old woman who currently resides in [a Tasmanian city]. EDH is in receipt of a disability support pension and is a participant of the National Disability Insurance Scheme. She is subject to a guardianship order and an administration order. She is currently subject to a treatment order under the Mental Health Act 2013 (Tas) (the Act).
2. A treatment order was first made for EDH on 28 November 2023. The order has since been reviewed, varied and renewed by the Tribunal on multiple occasions. The current treatment order expires on 25 November 2025. The Tribunal has previously issued a statement of reasons in relation to EDH on 29 August 2024.
3. The Act requires that treatment orders are reviewed within intervals of 180 days so long as they remain in effect. We conducted a review of the current order on 28 May 2025 and determined that the order should be affirmed.
4. On 6 June 2025 the patient, through Tasmanian Legal Aid (TLA), requested written statement of reasons. These are our reasons.

1. On 16 May 2025 the Tribunal's registry wrote to EDH and the other parties to the proceedings advising that a statutory review of the current treatment order was required to be conducted imminently. The letter went on to advise that it was the Tribunal's intention to proceed to conduct the review, on the papers, unless EDH or another party objected and wished for the Tribunal to proceed by way of a hearing. Ms Rylee Olsson from TLA emailed the Tribunal registry on 21 May 2025 indicating EDH objected to the proposed course and wanted a hearing to review the treatment order. The application to review the treatment order was listed to be heard on 28 May 2025. On the 27 May 2025 TLA emailed the registry advising they would not be attending the hearing but indicated they remained on file.
2. The hearing proceeded on 28 May 2025 and was heard at the Tribunal's premises, 38 Barrack Street in Hobart. EDH attended the hearing in person. Dr CD, psychiatry registrar attended by video link.
3. In conducting the review, we had before us the current treatment order; the most recent application for renewal of the order; a review report authored by Dr CD dated 15 May 2025; the hospital discharge summary; correspondence from TLA; the original application for a treatment order, and the treatment plan.
4. The current treatment order for EDH identifies the current treatment setting as the community and provides authority for EDH to be treated with both antipsychotic medication and anticholinergic medication and to attend Adult Community Mental Health Service (ACMHS) appointments. Further, the order authorises standard medical, blood, urine tests and diagnostical radiological and medical imaging tests as clinically indicated and as directed by the treating team.

1. Section 179(1)(b) of the Act mandates that the Tribunal is to review treatment orders (and their variation and discharge).
2. Provisions governing the review of a treatment order are set out in section 181 of the Act, as follows:

181. Review of treatment order > > (1) The following provisions govern the review of a treatment order: > > (a) the Tribunal must review the order within 60 days after it is made if it is still in effect; > > (b) the Tribunal must further review the order within 180 days after it is made if it is still in effect; > > (c) after the further review referred to in paragraph (b), the Tribunal must further review the order at intervals not exceeding 180 days for so long as it remains in effect; > > (d) ... > > (e) ... > > (f) a review need not involve a hearing, but is to be conducted - > > (i) in the case of a review referred to in paragraph (d) and in respect of which section 47A applies in relation to the patient, by a division - > > (A) of one member; or > > (B) of 3 or more members; or > > (ii) in any other case, by a division of 3 members. > > (g) on review, the Tribunal may affirm, vary or discharge the order.

3. In reviewing a treatment order under s 181(1)(c) of the Act, the Tribunal is necessarily required to determine whether the patient continues to meet the treatment criteria. Section 40 provides:

40. Treatment criteria > > The treatment criteria in relation to a person are - > > (a) the person has a mental illness; and > > (b) without treatment, the mental illness will, or is likely to, seriously harm - > > (i) the person's health or safety; or > > (ii) the safety of other persons; and > > (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.

4. In exercising our discretion whether to affirm, vary or discharge a treatment order, we are to consider the objects of the Act outlined under s 12:

The objects of this Act are as follows: > > (a) to provide for the assessment and treatment of persons with mental illnesses; > > (b) to provide for appropriate oversight and safeguards in relation to such assessment and treatment; > > (c) to give everyone involved with such assessment and treatment clear direction as to their rights and responsibilities; > > (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; > > (f) to provide for all incidental and ancillary matters.

5. We must refer to the mental health service delivery principles when exercising our responsibilities under the Act, which is outlined in Sch 1 of the Act (s 15; see B v Mental Health Tribunal [2020] TASSC 10 at [39] and CMB v Mental Health Tribunal [2021] TASFC 4 at [31]).

1. The term 'mental illness' is defined under s 4 of the Act:

(a) a person is taken to have a mental illness if he or she experiences, temporarily, repeatedly or continually -

(i) a serious impairment of thought (which may include delusions); or

(ii) a serious impairment of mood, volition, perception or cognition; and

1. The documentation before us indicated that EDH has a diagnosis of schizophrenia, and a possible neurocognitive disorder, however it was noted further assessments have not been completed to validate this diagnosis, as EDH has declined assessment.
2. Dr CD stated in his report:

EDH had an inpatient psychiatric admission from 17/11/23 -16/1/24 due to a psychotic relapse secondary to not receiving medications. She had not received her regular antipsychotics for a year prior to admission - the reason for this was unclear, previously she was discharged to GP only care in 2018 and was maintained on paliperidone IMI 100mg q4weekly. The year prior to admission her son and daughter noticed a decline in her mental health - increased mood lability, increasing episodes of agitation, poor attendance to general tasks, (eg matter brought before magistrate for unpaid bills), poor attendance to ATLs (eg not showering for days), withdrawal and not leaving the house, persecutory delusions, auditory hallucinations, responding to internal stimuli. During the admission she was re-established on paliperidone depot at an increased dose 150mg IMI monthly. She still has symptoms of psychosis with disorganized thought and delusional beliefs. 05/04/24 MOCA 17/30 (deficits in visuospatial, attention, language, abstraction, and delayed recall domains). Previous inpatient psychiatric admissions in 2008 and 2013 for psychotic relapse of schizophrenia. History documents post-natal mental illness including depression and psychosis following births of 3 children, since 1991.

3. Dr CD confirmed at hearing that EDH's diagnosis is schizophrenia and indicated that at his last assessment, EDH:

Still experiences chronic residual positive symptoms of her illness - reports paranoia of people entering her house, people spying on her in windows. Negative symptoms present - disorganisation.

One in 4 persons have this illness and history has shown that some of the most important people in the world's history have been listed as having a diagnosis of schizophrenia...

5. When asked whether she has schizophrenia, EDH responded:

No I don't think I have because I have never been diagnosed by the Squire Hospital in London and they can do a test which assesses whether you have or not the schizophrenia gene and until it is in black and white I have not been diagnosed with a blood test.

6. We accept the medical evidence of Dr CD that EDH has a history of mental illness, specifically schizophrenia, and continues to exhibit symptomology associated with this diagnosis. We find criterion s 40(a) of the Act is met.

Without treatment, the mental illness will, or is likely to, seriously harm the person's health or safety; or the safety of other persons - s 40(b)

1. His Honour Blow CJ (as he then was) provided interpretative commentary on section 40(b) in two previous decisions.
2. In S v Mental Health Tribunal [2016] TASSC 34, his Honour mentioned at [22]:

22. The thresholds for the satisfaction of the criteria in s 40(b) and (c) are fairly low. To be satisfied as to (b), a medical practitioner need not be satisfied of any risk to other persons, nor of any risk to the safety of the patient. It is sufficient if the practitioner is satisfied that, without treatment, the mental illness is likely to seriously harm the person's health, which of course includes the person's mental health.

3. For the purposes of the Act, the word 'likely' means "something more than a remote or theoretical possibility...something that might well happen": B v Mental Health Tribunal [2020] TASSC at [14].
4. In his report Dr CD provided the following assessment of ongoing risks of serious harm to both EDH and others:

Deterioration of mental state eg. psychotic relapse leading to hospitalisation. When acutely unwell (and without treatment) there are risks to her own health and safety due to impaired self-cares [sic] and paranoia impacting on decision-making. There is a risk of vulnerability and misadventure due to disorganisation, paranoia (that others are trying to harm her/family). There is potential risk to others as previously when psychotic has presented as agitated and intrusive. History of non compliance to medications.

5. At hearing, Dr CD stated that without treatment there is a serious risk of EDH's mental state deteriorating, resulting in a relapse and likely re-admission to hospital for treatment.
6. In her evidence to the Tribunal, EDH stated she is a gentle person and would not harm herself or others.
7. We accept the evidence of Dr CD that without treatment EDH's mental illness is likely to seriously harm her health or safety due to deterioration in her mental state. We are satisfied that criterion s 40(b) of the Act is met.

The treatment will be appropriate and effective in terms of the outcomes referred to in s 6(1) - s 40(c)

1. We need to be satisfied that the outcome of the proposed treatment is appropriate and effective as per s 6(1) of the Act:

6. Meaning of treatment > > (1) For the purposes of this Act, treatment is the professional intervention necessary to -

(b) manage and alleviate, where possible, the ill effects of mental illness; or

(c) reduce the risks that persons with mental illness may, on that account, pose to themselves or others; or

1. In S v Mental Health Tribunal, his Honour Blow CJ commented on the interpretation of this criterion at [22] and [23]:

22. The thresholds for the satisfaction of the criteria in s 40(b) and (c) are fairly low.[...] > > 23. Although s 40(c) uses the words "the treatment will be appropriate and effective", it is clear that the legislation is intended to apply to mentally ill individuals whose symptoms cannot be treated or ameliorated in any way. For the purposes of s 40(c) treatment will be "appropriate and effective" if it is treatment directed towards the management of the ill effects of mental illness, or even just the monitoring of a person's mental state: s 6(1)(b) and (d).

Positive symptoms present but not causing significant distress > > Ongoing close [sic] treatment > > Ensuring medication compliance - non compliance has led to admissions. > > ... > > Improvement in positive and negative symptoms but unfortunately no further improvement to insight and capacity.

3. At hearing Dr CD stated EDH was being treated with Paliperidone, Trinza and oral Aripiprazole. It was Dr CD's position that the treatment ordered by the current order remains appropriate and effective. Dr CD opined that the adherence to medication combined with engagement of case management is keeping EDH reasonably stable at present and while she continues to have residual psychotic symptoms, these have been reduced. Further, Dr CD stated the treatment being provided to EDH is clinically indicated for treating schizophrenia.
4. EDH stated she did not need paliperidone and noted "the medical guidelines on the medicine stated it has been overused" and EDH believed it had been overused in her case.
5. We accept the evidence of Dr CD, that the current treatment had resulted in a reduction of EDH's symptoms and is appropriate and effective treatment for her diagnosis of schizophrenia. We find criteria s 40(c) of the Act is met.

The treatment cannot be adequately given except under a treatment order - s 40(d)

1. The evidence of both Dr CD and from EDH herself indicates that EDH does not accept she has a mental illness and would prefer not to have treatment. Dr CD stated EDH superficially accepts the anti-psychotic Paliperidone, however noted that without an order being in place, it is highly unlikely EDH would accept any treatment for her mental illness.
2. In his report Dr CD states:

...[EDH has had] episodes of psychosis leading to admission in the past being in the background of non-compliance, and has frequently voiced to other clinicians she would like to stop medications. > > Last admission on the background of non compliance to medications.

3. EDH indicated she would prefer not to be on a treatment order and finds the antipsychotic depot medication "inhumane and contrary to the United Nations Geneva Convention" and indicated she would prefer oral medication. When questioned whether she would continue taking treatment EDH indicated:

it can be withdrawn easily without serious side effects and I would have to come down slightly but I would not need medical supervision and if I was coming down from the medication, it can be stopped easily.

4. Based on the evidence, we find it is more likely than not, that EDH would cease treatment for schizophrenia, if she was not on a treatment order. Further, as noted below, we accept the evidence of Dr CD that EDH currently lacks decision making capacity to provide informed consent to treatment of her mental illness, and as such, an order is required for ongoing treatment. We find criteria s 40(d) of the Act is met.

The person does not have decision-making capacity - s 40(e)

1. The term 'decision-making capacity' is defined in s 7 of the Act:

7. Capacity of adults and children to make decisions about their own assessment and treatment > > (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. In his report, Dr CD confirmed he assessed EDH's mental state on 15 May 2025 and determined she lacks decision making capacity. He notes EDH does not believe she has a diagnosis of schizophrenia, is unable to explain the role of medication or demonstrate an understanding that her episodes of psychosis leading to admission resulted from her non-compliance and cessation of treatment.
2. In his oral evidence, Dr CD noted that EDH has an impairment to her brain functioning due to her symptoms of schizophrenia, with an overlaying neurocognitive condition effect compounding the impairment. Dr CD stated EDH is unable to understand and use and weigh information about her illness and the treatment of it, the benefits of treatment and the roles of medications in treating both positive and negative symptoms of her illness and how the treatment relates to her and her diagnosis. Dr CD noted that EDH's expressed preference is to come off the medications.
3. Dr CD confirmed there were no deficits in EDH's ability to retain information as to her mental illness or treatment of it, or in her ability to communicate relevant decisions.
4. We note EDH's opposition to her diagnosis of schizophrenia, but apart from her personal view on this matter, no evidence was put by EDH disputing the evidence of Dr CD except to say she had decision making capacity. We accept Dr CD's evidence as to EDH's diagnosis and his current assessment of EDH's decision-making capacity. We find criterion 40(e) is met.

The discretion to affirm, vary or discharge a treatment order

1. Given the evidence before us, we were satisfied that we should exercise our discretion to affirm the treatment order.
2. We note that without further involvement of the Tribunal, in the event that an approved medical practitioner assesses EDH as no longer meeting the treatment criteria outlined under s 40 of the Act, then subject to s 49(3), the medical practitioner must discharge the treatment order we have made (s 49(2)) and has the authority to do so (s 49(1)(a)).