Tasmanian Civil & Administrative Tribunal Act 2020 (Tas), s 98.

B v Mental Health Tribunal [2020] TASSC 10;

CMB v Mental Health Tribunal [2021] TASFC 4;

S v Mental Health Tribunal [2016] TASSC 34.

Ms E Dalgleish (Tasmanian Legal Aid) as separate representative

Mr J Brennan (Advocacy Tasmania) as advocate for the patient

The decision has been anonymised for the purpose of publication

1. OU (the patient) is a 58 year old woman who normally resides in [a Tasmanian town]. At the time of the application and hearing, she was an involuntary patient at [an approved facility].
2. On 26 May 2025, Dr NC (the applicant) filed with the Tasmanian Civil and Administrative Tribunal (the Tribunal) an application for a treatment order for the patient pursuant to s 37 of the Mental Health Act 2013 (Tas) (the Act). In her application, Dr NC provided the following circumstantial overview:

58yo lady, with an established diagnosis of schizophrenia since 2003. Not much documentation in DMR as she was managed by a private Psychiatrist Dr [FS]. She was on Risperidone 50mg IM fortnightly supplied by GP Clinic. As per the medical records, the last depot dose she had was in January 2025. > > Two previous Mental Health admissions in Nov 2007 and January 2008 (unable to access as the documents have been filed and they have not been scanned). It is is [sic] not clear at time of application whether [the patient] has been treated on an [sic] TO before. > > As per PACER notes they contacted GP Clinic, and they stated that they have been trying to contact [the patient] since January to receive her depot as prescribed, but she has been refusing. > > Lives at home, alone with her cat. Reported that she has 3 children who live in Tasmania but has not had much contact recently. (one son reported as a NOK). Denied any friends or community support. > > ... > > [The patient] has a long history of Schizophrenia (2003) she has been non-compliant with Consta 50mg depot since January 2025. > > At time of admission, she is presenting with symptoms consistent with a psychotic relapse of schizophrenia with florid delusional ideation and potential for significant self neglect due to delusional beliefs. Currently not able to be treated in the community, as [the patient] is stating she is allergic to all medications and resisting to take.

3. Dr NC sought an interim treatment order pursuant to s 38 of the Act. On 27 May 2025, a single Member of the Tribunal made an interim treatment order, effective until 10:35am on 6 June 2025, in relation to the patient in the following terms:

1. is authority for the patient to be admitted to and if necessary detained in an approved facility for the purposes of receiving treatment;
2. authorises a combination of treatment settings and the admission or readmission of the patient to those settings, including treatment in the community; and

1. The patient is to take the following medication (depending on clinical indication):

1. Antipsychotic medication 2. Antidepressant medication 3. Benzodiazepine medication 4. Anticholinergic medication for treatment of any extrapyramidal side effects from taking antipsychotic medication

Medications may be administered orally and/or by intra-muscular injection and/or by depot injection as prescribed by a treating psychiatrist within clinical guidelines, with dosages adjusted according to clinical response and tolerability.

2. Standard medical and/or blood, and/or urine tests and/or diagnostic radiological and medical imaging tests, as clinically indicated and as directed by the treating team.
3. Adult Community Mental Health Service (ACMHS) appointments (inclusive of home visits as arranged when being treated in the community.
4. On 27 May 2025, upon making the interim treatment order, the Tribunal Member also made an order for the patient to be separately represented in relation to the application for treatment order, pursuant to s 98 of the Tasmanian Civil and Administrative Tribunal Act 2020. The member provided brief reasons for the order being made, including:

... There is no evidence [the patient] has previously been subject to a treatment order under the Mental Health Act 2013. > > ... The application states [the patient] is currently a patient in an approved facility presenting with psychotic symptoms and relapse of her schizophrenia. > > ... The application indicates [the patient] lives alone and does not indicate she has any supports or close and continuing relationship with family members. > > ...Based on the information in the application, I am of the view it is appropriate for [the patient's] interests in the proceedings be advanced through the appointment of a separate representative.

5. A Notice of Hearing was issued by the Tribunal advising that a hearing to determine the application for a treatment order would be held on 5 June 2025 before a three-member panel of the Tribunal.
6. The hearing proceeded as scheduled on 5 June 2025 and a treatment order was made. Brief oral reasons for the decision were given at the hearing.
7. Following the hearing, OU submitted a written request for reasons for the orders made on 5 June 2025. These are our reasons.

1. The hearing was conducted in person at [an approved facility]. All participants attended the hearing in person either from the approved facility, or from the Tribunal hearing room in Hobart which had an audio-visual link to the [approved facility]. The patient's son, HU, also attended the hearing from the approved facility.
2. At the time of the hearing, the original applicant for the treatment order, Dr NC was not available and neither was her other treating doctor. However, Dr IQ, a consultant psychiatrist involved with overseeing the patient's care, was able to attend and for the purposes of the hearing, became the substitute applicant. Dr IQ explained that she had not previously met the patient but had an opportunity to introduce herself and have a brief discussion with the patient prior to the hearing. Dr IQ participated in-person, together with the patient, HU, Mr Brennan and a registered nurse.
3. The application and associated supporting documentation were filed by the applicant and the patient's treating team prior to the hearing. No documentary evidence of submissions were provided by the patient or her separate representative prior to, or at the hearing.
4. Upon the commencement of the hearing, OU confirmed that Dr FS had been treating her for 22 years but that he was unable to attend the hearing. Neither the patient, nor her advocate, requested that the hearing not proceed without Dr FS.

Section 39 of the Act provides the Tribunal with authority to make a treatment order:

39. Determination of application for treatment order > > (1) The Tribunal may make a treatment order in respect of a person if, and only if, it is satisfied that - > > (a) an approved medical practitioner has applied for a treatment order in respect of the person; and > > (b) the requirements of section 37 have been met in respect of the application; and > > (c) the person meets the treatment criteria; and > > (d) a treatment plan has been prepared for the person; and > > (e) the requirements of section 53(2) appear to have been met with respect to the treatment plan. > > ...

As per s 39(1)(b), the Tribunal can be satisfied that a treatment order should be made where the application has fulfilled the requirements under s 37:

37. Application for treatment order > > (1) Any approved medical practitioner may apply to the Tribunal for a treatment order in respect of a person. > > (2) The application may be made whether or not the person is subject to an assessment order. > > (3) If the person is subject to an assessment order, the application should only be made if - > > (a) the applicant has assessed the person under the authority of the assessment order; and > > (b) the applicant is satisfied from the assessment that the person meets the treatment criteria. > > (4) If the person is not subject to an assessment order, the application should only be made if - > > (a) the person has been assessed by the applicant and one other approved medical practitioner, separately, within the preceding 7 days; and > > (b) the applicant and the other approved medical practitioner are both satisfied from their respective assessments that the person meets the treatment criteria. > > (5) The application in relation to a person is to be in accordance with section 195 and be accompanied by - > > (a) a statement by the applicant affirming that (and explaining how) the person meets the treatment criteria; and > > (b) . . . . . . . . > > (c) an indication as to whether an interim treatment order is needed; and > > (d) if the person is subject to an assessment order, a copy of that order. > > (6) The applicant is to - > > (a) give a copy of the application to the person (together with a statement of rights in a form approved by the President of the Tribunal); and > > (b) place a copy of the application (and accompanying documentation) on the person's clinical record (ensuring that such a clinical record is created if one does not already exist).

Further, we must be satisfied that the person the subject of the application meets the treatment criteria provided under s 40:

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.

We note that in relation to the requirement for a treatment plan, a treatment plan is defined under s 50 of the Act as an instrument which outlines the treatment the patient is to receive and in accordance with s 52, must be in a form approved by the Chief Civil Psychiatrist. Section 39(1)(e) prescribes that the Tribunal must be satisfied that the requirements of s 53(2) appear to have been met in relation to a treatment plan:

53. Preparation of treatment plan > > (2) In preparing a treatment plan, a medical practitioner - > > (a) is to consult the patient; and > > (b) may, after consulting the patient, consult such other persons as the medical practitioner thinks fit in the circumstances.

Further, in determining whether to make a treatment order pursuant to s 39, we need to be cognisant of the objects of the Act in s 12:

12. Objects of Act > > 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.

Finally, in exercising our responsibilities under the Act, we must refer to the mental health service delivery principles set out 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]). Schedule 1 provides:

SCHEDULE 1 - Mental health service delivery principles > > 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; > > (c) to provide a service that is comprehensive, accessible, inclusive, equitable and free from stigma; > > (d) to be sensitive and responsive to individual needs including, but not limited to - > > (i) needs relating to culture, language, age, religion, gender, gender identity, sexual preference, sexuality or other personal factors; and > > (ii) in relation to patients who are Aboriginal persons or Torres Strait Islanders, that there is a recognition of and response to their distinct cultural and identity needs; and > > (iii) needs that require recognition of and response to relevant cultural and identity needs generally; and needs related to trauma-informed care; > > (e) to emphasise and value promotion, prevention and early detection and intervention; > > (f) to seek to bring about the best therapeutic outcomes, including the use of evidence-based care, and promote patient recovery; > > (g) to provide services that are consistent with patient treatment plans; > > (h) to recognise the difficulty, importance and value of the role played by families, carers, children and support persons of persons with mental illness; > > (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 decisions, including decisions about the person's assessment, treatment and recovery that involve a degree of risk; > > (k) to involve persons receiving services, and where appropriate their families, carers, children 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; > > (n) to promote and enable persons with mental illness to live, work and participate in their own community; > > (o) to operate so as to raise community awareness and understanding of mental illness and to foster community-wide respect for the inherent rights, liberty, dignity, autonomy and self-respect of persons with mental illness; > > (p) to be accountable and to have robust clinical governance and quality and safety processes; > > (q) to recognise and be responsive to national and international clinical, technical and human rights trends, developments and advances and meet the requirements to national accreditation; > > (r) to ensure that persons receiving mental health services have their medical and other health needs, including any alcohol and other addiction problems, recognised and responded to; > > (s) to ensure that the best interests of children and young persons are recognised and promoted as a primary consideration, including receiving services separately from adults, whenever possible; > > (t) to ensure that the needs, wellbeing and safety of children, and other dependants, of persons receiving mental health services are recognised and protected; > > (u) to ensure that staff working in mental health services have access to the support, supervision and appropriate training, including cultural diversity training, required to maintain quality, safety and a highly skilled workforce; > > (v) to provide a mental health service that - > > (i) is easily accessible, and safe; and > > (ii) provides persons with mental illness with timely treatment, care and support that is high quality and based on contemporary best-practice principles; and > > (iii) promotes recovery in the least restrictive manner that is consistent with the needs of persons with mental illness; > > (w) to ensure that people who require mental health care and treatment have timely referrals, and access to specialist mental health services, when appropriate.

1. In accordance with the provisions outlined above, we must be satisfied of a series of what are essentially important procedural matters prior to determining whether the patient meets the treatment criteria.
2. The documents filed by the applicant and the patient's treating team, noting that neither the patient nor her separate representative raised any contention, lead us to conclude that the procedural matters had been satisfied, specifically:

(a) the applicant is an approved medical practitioner pursuant to s 138 of the Act (s 39(1)(a));

(b) in circumstances where the patient is subject to an assessment order, the applicant has assessed the patient under the authority of the assessment order and is satisfied that the patient meets the treatment criteria (s 37(3)); and

(c) the application was: made on the approved form; included a statement by the applicant explaining how the patient satisfied the treatment criteria; indicated that an interim treatment order was required; accompanied with an assessment order; copies of the application together with a statement of rights were provided by the applicant to the patient; a copy had been placed on the patient's clinical records; and the applicant had made a note on the patient's clinical records of those actions (s 37(5),(6)); and

(d) a treatment plan has been prepared for the patient, such plan having been prepared by the applicant dated 28 May 2025, and that the patient was consulted in the course of preparing the plan (s 39(1)(d)(e) and s 53(2)).

1. We now turn to an examination of the evidence and submissions as to whether the patient meets the treatment criteria.

The person has a mental illness pursuant to s 40(a)

4. Meaning of mental illness > > (1) For the purposes of this 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 > > (b) nothing prevents the serious or permanent physiological, biochemical or psychological effects of alcohol use or drug-taking from being regarded as an indication that a person has a mental illness. > > ...

2. Dr NC's application for the order asserted that the patient had an established diagnosis of schizophrenia and that the patient was presenting with a relapse of that condition. She also stated -

She is grossly thought disordered - presenting with tangential thoughts and at times flight of ideas. She is displaying delusional misidentification - at age one she states she was driving helicopters in the Vietnam war. > > Grandiose delusions - [the patient] states she is currently working with Elton John. > > Paranoid delusions - it is [the patient's] belief that a female police officer has been spying on her, stealing her possession and has raped [the patient] and her ex partner.

3. In the treatment plan prepared by Dr NC on 28 May 2025, Dr NC stated the patient "is not of the belief that she has a mental illness, nor that she requires treatment with antipsychotic medication." In the application, Dr NC noted that the patient "does not equate her presentation to a mental health condition".
4. At the hearing, Dr IQ stated that the patient's general practitioner had contacted the PACER [Police, Ambulance and Clinical Early Response] team following concerns that the patient was not taking her medication. The patient had reportedly developed fears and paranoid thoughts. Dr IQ said the patient has been experiencing a psychotic episode. When asked whether the working diagnosis was schizophrenia, Dr IQ said that she would not like to say at that time as that will be a matter for the treating team to continue to consider, bearing in mind a possible mood component that has been noted. Dr IQ confirmed however, that the patient does have a mental illness.
5. At the hearing, the patient agreed that she was concerned that "the bikies were going to be [at Dr FS's office]" and that she feared Dr FS and herself were in danger. She also mentioned her concerns that the "outlaws" were going to shoot her in the back. She spoke of seeing crime, and said "I've told the police everything they need to know." The patient said that she hates the bikies and hates that they hurt the police. When asked by Ms Dalgleish about a previous discussion they had in which the patient had mentioned she was a psychic, she said she closed her eyes and saw the crimes flash so she called the police. She said she could not stand it when they kill the police. The patient also spoke of having become a bit nervous about the doctor because he came to her house and something happened but she was not going to talk about that. Whilst OU did not specifically address whether she agreed she had schizophrenia, she said the word "mental" in "mental illness" upsets her because she feels that in her case, it is more an emotional issue. She also spoke of knowing what to do if she were to relapse again but that she intended to continue to take the medication the treating team were prescribing.
6. Ms Dalgleish said that when she spoke with the patient, she was not accepting of the diagnosis of schizophrenia, but rather that she was a psychic. Ms Dalgleish said that there was clear evidence of mental illness at the hearing such that this criterion was made out.
7. There is no evidential onus of proof on an applicant for a treatment order, or any other form of order, that an applicant requests be made by the Tribunal under the Act_._ Rather, in light of the protective nature of the jurisdiction being exercised, a common sense approach to evidence should be taken. The approved medical practitioner as applicant, or other member of a patient's treating team supporting an application, must present evidence and information sufficient to enable the Tribunal to conclude, having taken account of the nature of the order requested and the consequences which might flow to the patient, that on the balance of probabilities each criterion required to enable an order to be made has been met.
8. It appears that although the patient may, at least at the time of the application and treatment plan being prepared, have believed that she did not have a mental illness, there appeared to be an acceptance by the patient at the time of the hearing of a need for treatment for the emotional issue, even if the patient was not comfortable accepting that the presentation was of a "mental" illness. The patient was also clear in her acknowledgement that she had been treated by Dr FS, a private psychiatrist, for 22 years, and that she would like to continue to be treated by Dr FS.
9. Dr NC, in her written application and treatment plan, and Dr IQ, at hearing, have provided cogent evidence which explains why the view has been formed that the patient has a mental illness. Although it was noted that there had, prior to the hearing, been disagreement with the diagnosis, there was no evidence or submission made to the contrary. We are satisfied to the requisite standard upon the evidence and information provided by the treating team, that the criterion in s 40(a) of the Act is met. That is, the patient has a mental illness as defined by the Act.

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

1. The issue for us to decide on this criterion was whether we could be satisfied that without treatment, the patient's mental illness will, or is likely to, seriously harm the patient's health and safety. This criterion has been the subject of interpretation by his Honour Blow CJ in two matters.
2. In S v Mental Health Tribunal [2016] TASSC 34, his Honour said at [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. Subsequently, his Honour provided additional comments as to the interpretation of this criterion in the matter of B v Mental Health Tribunal [2020] TASSC 10 at [14]:

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.

4. In the application, Dr NC set out the risks to the patient if she were not treated as follows:

Without treatment [OU's] mental state is likely to deteriorate further. Her current presentation poses a risk to her reputation. There is also a risk of misadventure due to [OU's] paranoid beliefs. At the time of this application, it is also apparent that [OU] is at high risk of self neglect. Her paranoid thoughts have understandably led to poor sleep and a preoccupation around keeping herself safe.

5. Dr IQ informed us that the treating team had no concern about risk to others but were concerned about risks to the patient through disorganisation and misadventure. When she came into hospital, she was quite disorganised in both thoughts and behaviour. We also noted Dr IQ's evidence about the development of fears and paranoid thoughts on which the patient was acting, including calling the police and missing medical appointments. OU expanded on those fears, telling us about her concerns about "the bikies" causing harm to and threatening others.
6. In the treatment plan prepared for the patient, Dr NC had also noted that in addition to being "grossly thought disordered", OU is also displaying disinhibited behaviour.
7. The patient said she has been "doing fine", she has been looking after her cat, looking after herself and her neighbours and keeping an eye on crime. She has been "ringing the police flat out" to tell them about crime. She said she just had to let them know about the risks and the danger because there was "terrorism and war", that she told them a lot but she is satisfied now that she has done her "duty as a citizen". The patient mentioned that she had taken in a homeless person and her son, and agreed with HU (the patient's son), that this had not been a very good idea.
8. Ms Dalgleish said that she was satisfied there was clear evidence of risk to OU if she were not to be treated.
9. We are satisfied that the evidence indicates that without treatment the patient's mental health is likely to deteriorate resulting in possible hospitalisation and/or significant distress to her and placing her reputation, health and safety at risk of serious harm through acting on her delusions, exploitation of her vulnerabilities by others, misadventure and lack of self-care.

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

1. In determining whether to exercise the discretion to make a treatment order, we must be satisfied that the outcome of the proposed treatment is appropriate and effective with regard to the meaning of "treatment" in s 6(1) of the Act:

6. Meaning of treatment > > (1) For the purposes of this Act, treatment is the professional intervention necessary to - > > (a) prevent or remedy mental illness; or > > (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 > > (d) monitor or evaluate a person's mental state.

2. In the matter of S v Mental Health Tribunal (supra), his Honour Blow CJ provided commentary as to the interpretation of this criterion as follows:

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).

3. Dr NC in the application, outlines the current treatment to include antipsychotic medication (Olanzapine) and benzodiazepine medication (Lorazepam) and will continue the antipsychotic medication with consideration for administration by depot injection, as well as blood tests to monitor for physical health, "reviews with MDT", family meeting and reviews with community team on discharge. At the time of the application, the patient was being treated in the high dependency unit at the approved facility, but it was planned for her to step down to the low dependency unit and that upon discharge, the patient would return home and her treatment would be managed by her local community mental health centre. Dr NC stated that:

Proposed treatment will be led by the treating team's Consultant Psychiatrist taking into account Colledge (sic) guidelines but also reviewing [OU's] medication history including what has worked for her historically...

Treatment is required to help stabilise [OU's] mental state and hence prevent further deterioration. This will ensure [OU] can return to the community. Treatment will reduce the risk of relapse and therefore the need for future admissions.

1. At the hearing, Dr IQ said that it is understood that the patient has been treated on risperidone with Dr FS for schizophrenia since the patient was diagnosed in 2003 (which the patient said was in fact 2001). Dr IQ said the illness had been generally well managed up until the last few months, when it had re-emerged in the context of non-adherence to medication. Dr IQ said the patient's mood had been observed to be elevated and that she had been started on mood stabilising medication as well as antipsychotic medication (Olanzapine). She said it is unknown whether mood has been a component of the patient's illness in the past. Dr IQ did not see a need for antidepressant medication to be used as part of the patient's treatment but that it would be useful to have the option of anticholinergic medication. She also said that the patient had expressed clearly that she did not want to receive her medication by injection in the future. Dr IQ said there had been no side effects noted from the current medications and there is evidence that the treatment has resulted in improvement in mental state, indicating the treatment is effective.
2. The patient stated that the "stupid risperidone needle was the problem". She described it was causing her significant nausea and vomiting. She also said Seroquel was "no good", it was causing her headaches and blood pressure issues. She said she is feeling "100% well now" and is happy to take the medication. She said that she feels good and is getting sleep.
3. Ms Dalgleish said that when she had spoken with the patient, a week prior to the hearing at the approved facility, she had indicated that she did not wish to have a needle or an antipsychotic medication. She said she was pleased to see there was some improvement and the patient was now accepting of this. She said the medication is helping OU.
4. Relevant to the effectiveness of the treatment, the patient's son said that he believed OU was "getting there" but was not quite back to her baseline.
5. We accepted the evidence as to the professional opinions of Dr NC and Dr IQ that the treatment proposed in the application was appropriate and effective for the patient as defined in the Act and that such treatment would be overseen by consultant psychiatrists and would be within accepted treatment guidelines. The prescribed medications are directed towards the management of the ill effects of the patient's mental illness, which currently needs to be managed in an approved facility with discharge to community management in due course. All participants appeared to accept there has been improvement in symptoms since the treatment commenced. This criterion is satisfied.

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

1. In the application for the treatment order, Dr NC provided the following opinion in relation to this criterion:

[The patient] does not equate her presentation to a mental health condition. She wishes to return home and does not believe that there is a reason for her to be in hospital. It is [the patient's] belief that she needs to return home to prevent the female police officer from stealing her belongings.

2. Dr IQ, at the hearing, said that the patient had not taken antipsychotic medication since January, which the treating team had understood was allowed by the general practitioner but was not his decision, rather, he was following the wishes of the patient. The patient had stopped going to see Dr FS in the community because she was concerned about his safety as the bikies were going to be there. Dr IQ said that the patient had expressed clearly to the treating team that she does not want to receive medication by injection. She also said that the patient has not yet regained the ability to understand and weigh information about her illness. Dr IQ did not believe there was any less restrictive way of treating OU at the moment but that may change going forward.
3. In addition to the issues the patient told us in respect to the Risperidone injection and another medication (Seroquel), the patient informed us directly that she intends to take the medication and would like to continue to work with Dr FS, her private psychiatrist, in the community, and may also like to work with a psychologist. In reference to the period of time earlier this year when she had ceased all antipsychotic medication, she said she was "very happy". She said she has been "doing fine by myself". OU said that she just wants to be at home.
4. The patient's advocate, Mr Brennan, said that being in the facility affects the patient's mood and that she wishes to be at home with her cat and to continue working with Dr FS in the community.
5. At the hearing, Ms Dalgleish did not challenge the evidence that treatment could not be given in the absence of a treatment order.
6. Having accepted the evidence of the treating team that the patient is not yet able to understand her mental health condition and weigh information in respect to it, or the need to stay in hospital to receive treatment for it, we are satisfied that the required treatment cannot be currently given without the imposition of a treatment order because the patient is currently unable to give informed consent. We are satisfied that this criterion is made out by the evidence.

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

1. The Act defines 'decision-making capacity' in s 7:

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 > > (b) he or she is unable to - > > (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).

2. In her application, Dr NC opined a view that the patient lacked decision making capacity, stating that:

[The patient] is currently experiencing an acute on chronic deterioration of the mind due to a psychotic relapse of her Schizophrenia. At the time of this application, [OU] is unable to make a decision about her assessment and treatment. > > [OU] is currently not able to understand information relevant to the decision due to her inattention and agitation in the context of being HIGHLY thought disordered. [OU] is not able to be engaged long enough to relay information, she is preoccupied with her own racing thoughts mostly around a female police officer whom she believes is targeting her and her house. Understandably these thoughts leave [OU] agitated and hypervigilant which also adds to the difficulties of reviewing [OU]. > > [OU] is highly distractible and inattentive in her current state with pressured thoughts and flight of ideas. This prevents her from recalling information that has previously been relayed to her. > > [OU's] preoccupations with paranoid thoughts around a female police officer, prevent her from being able to focus on relevant information that is being relayed to her. Her pressured thoughts and loss of touch of reality prevent [OU] from being able to focus on the current decisions that are being discussed by the treating team. > > Although [OU] communicates verbally, she is unable to fully communicate effectively with the treating team. This is down to her pressured thoughts and preoccupations around her current beliefs of a female police officer that is targeting her.

the patient has been experiencing a psychotic episode and that as a result, her thinking has been disorganised, she has been distractable, her mood has been irritable and elevated and its difficult for her to listen to information, process it, understand it and retain that information pertaining specifically to information about her mental illness rather than anything else.

4. Dr IQ said that because OU does not really have the awareness of the change in her mental state, she is not really able to weigh information about health care decisions at the moment.
5. Ms Dalgleish submitted that the patient's decision making capacity was "not quite there" and that the s 40 treatment criteria had been met.
6. The Tribunal received clear evidence that the patient was unable to recognise her current experience as reflective of the symptoms of mental illness and is unable to understand or use and weigh information in respect to treatment decisions. We accept the evidence of the treating team that the patient does not have decision making capacity, as defined by the Act, to make decisions as to the assessment and treatment of her mental health. This criterion is satisfied.

1. We are satisfied that the patient meets the treatment criteria. We are also satisfied that the other procedural matters have been met with as outlined under s 39 of the Act (see [19] above). Accordingly, we can proceed to decide whether to exercise the discretion to make a treatment order for the patient as sought by the substitute applicants. We note that in exercising our discretion we need to consider the objects of the Act (in s 12) and the mental health delivery principles (in Sch 1).
2. We have concluded that the patient has a mental illness and that she is currently experiencing a relapse of the illness. At present, we hold the view that the patient requires a treatment order to ensure that her mental illness is both treated and that she is kept under observation for the purpose of management of the illness. Whilst we considered and respected the views expressed by the patient, we deduced that she is currently incapable of making autonomous decisions about the treatment she requires for her mental illness. In expressing this view, we are guided by the analysis of Pearce J in CMB v Mental Health Tribunal (supra) at [31]:

Patients are to be subject to the least restriction, but only as far as is consistent with public safety and patient health, safety and welfare. Moreover, the submission that the terms of the legislation favour "patient autonomy" carry little weight when, at the relevant time, the patient is incapable of making an autonomous decision. In my view it is for the Tribunal to weigh the various, sometimes competing, considerations and to reach the appropriate balance.

3. We are satisfied that a treatment order should be made for the patient in the terms sought by the applicant and substitute applicant for a period of six months, noting that unless the order is discharged sooner, it will be reviewed by the Tribunal within 60 days. We also note that without further involvement of the Tribunal, in the event that an approved medical practitioner assesses the patient as no longer meeting the treatment criteria provided in s 40 of the Act, then subject to s 49(3), the practitioner must discharge the treatment order we have made (s 49(2)) and has the authority to do so (s 49(1)(a)).

1. The treatment order, in the terms requested by the applicant, was issued on 5 June 2025 at 2.20pm. The substantive provisions of the order were in identical terms to the interim treatment order made by the Tribunal on 27 May 2025 (see [3] above), with the exception of the removal of the authority to treat with antidepressant medication and the addition of authority to treat with mood stabilising medication. The order was issued on the approved form and complied with the requirements under s 41 of the Act. The order will expire on 4 December 2025 unless discharged sooner, or renewed. The order has not been replicated in its entirety in these reasons to ensure that the identity of the patient is not disclosed as mandated by cl 11 of Pt 2 to Sch 4 of the Act.