SI (60 Day Review of Treatment Order) [2025] TASCAT 139

Mental Health Stream - 60 day review of treatment order - Side effects of medication - Order affirmed.

Mental Health Act 2013 (Tas), ss 6, 7, 12, 15, 15A, 37, 40, 172, 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. SI (the patient) is an 81 year old woman who normally resides in [a Tasmanian town]. At the time of the review hearing, she was being treated as an outpatient in the community.
2. On 29 January 2025, Dr KQ (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 his application, Dr KQ provided the following circumstantial overview:

[The patient] was seen in the older persons mental health service outpatient unit on the 29th of January 2025, this for review of her diagnosis & management of Schizophrenia under an existing treatment order (last review determination done on the 20/12/24). Unfortunately present order expiry date was the 31/1/25, and a renewal was not undertaken prior to this (sic) date occurring; hence a new application for Treatment order here. Extensive documentation existing (sic) for past reviews, these to be attached to this new application however. Currently managed with a long acting injectable antipsychotic medication paliperidone 50mg given monthly, this medication has enabled a sustained period of wellness in [SI] as long as it has been able to be given under a treatment order. Current symptoms mainly limited to frank lack of insight into illness, repercussions of illness and/or lack of treatment to prevent illness, this has been despite numerous assessments with [SI] to explore this issue, and is understood to be directly attributable to her psychotic illness. Psychotic illness exacerbations have been repeatedly attributed by [SI] to unrelated illnesses which have been thoroughly investigated and excluded. [SI] has when off a treatment order repeatedly reduced or ceased medications resulting in relapses of psychotic phenomena, this resulting in admissions to hospital in 2024, twice in 2022, 2021 & 2003. There is also strong evidence to suggest psychotic illness occurring between these admissions with presentations to the LGH emergency department and collateral from other health providers and family. Certainly there appears to be an increase in frequency in episodes of psychosis in recent years highlighting increasing vulnerability over time and contemporaneously. [SI] when actually unwell will otherwise demonstrate a full compliment of positive symptoms of Schizophrenia and this with risks to physical self & reputation. As of the review done on the 29/1/25 by the author of this report, [SI] continues to have schizophrenia, lacks insight into this illness and treatments for the same, would have varied risks should the order be allowed to lapse of (sic) not be recommenced and shows significant benefits from active treatment of her Schizophrenia.

1. The hearing of the application was scheduled for 13 February 2025. It was adjourned on that date because the patient had thought the hearing was on another day and her legal representative did not have the papers.
2. On 13 February 2025, upon adjourning the application hearing, pursuant to s 172 of the Act, the Tribunal made a treatment order on an interim basis, effective from 9:21am on 13 February 2025 until the determination of the application, in relation to the patient in the following terms:

This Treatment Order, made on an interim basis:

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. 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.

1. 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.
2. Older Persons Mental Health Service (OPMHS) appointments (inclusive of home visits as arranged when being treated in the community).
3. The hearing was rescheduled and proceeded on 21 February 2025 and a treatment order was made in identical terms, with the exception that the order was to expire on 12 August 2025 at 9:21am.
4. A 60 day hearing for review of the treatment order was scheduled for 9 April 2025. The hearing was adjourned on that date to allow the patient to have legal representation present.
5. A 60 day review hearing was again scheduled for 8 May 2025. That hearing was adjourned because the patient had not been recently reviewed by her treating doctor and to allow the patient to explore obtaining advice from Advocacy Tasmania.
6. The 60 day review hearing was then rescheduled for 5 June 2025. The hearing proceeded on that day and the treatment order was affirmed. Brief oral reasons for the Tribunal's decision were given at the hearing.
7. Following the hearing, SI 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 Adult Community Mental Health Services North (ACMHSN). The patient, Dr KQ and SN (the patient's case manager) attended the hearing in person from ACMHSN. There was an audio-visual link from the Tribunal hearing room in Hobart to ACMHSN. The patient's son, CK, also attended the hearing by telephone. Neither of the parties were legally represented.
2. A 60 day review report dated 16 May 2025 was prepared by Dr KQ following his review of the patient on 14 May 2025. The report was filed by the applicant and the patient's treating team prior to the hearing and the Tribunal also had supporting documentation previously before the Tribunal in respect to SI. No documentary evidence or submissions were provided by the patient prior to, or at the hearing.
3. In the 60 day review report, Dr KQ made reference to -

extensive reports provided for numerous reviews and renewals for this patient. Specifically, in regards a review which required repeated adjournments in late 2024, there is an extensive report provided for this which details much of the history of the patient...

4. Given the specific reference made to that report, we were provided with a copy of it, and considered its content, noting that Dr KQ's evidence was that there had been little or no change to the patient's presentation since the prior significant reports. For the purpose of determining this review, as will be detailed below, we gave significant weight to the more recent evidence before us, being the application for treatment order dated 29 January 2025, the 60 day review report dated 16 May 2025 and the evidence provided and submissions made at the hearing.

1. Section 179(1)(b) of the Act mandates the Tribunal review treatment orders (and their variation and discharge).
2. Relevant provisions for the review of a treatment order are set out in s 181of 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) the Tribunal must review the order within 3 days after being notified of the patient's admission to an approved hospital pursuant to section 42(3) if the admission is pursuant to section 42(2)(b) ; > > (e) the Tribunal may review the order at any other time - > > (i) on its own motion; or > > (ii) on the application of any person with the necessary standing; > > (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. > > (2) The Tribunal may vary a treatment order at any time - > > (a) on its own motion; or > > (b) on the application of any approved medical practitioner; or > > (c) on the application of any person with the necessary standing. > > (2A) The Tribunal may vary a treatment order whether or not it has conducted a review under this section. > > (3) Within 24 hours of varying a treatment order, the Tribunal is to - > > (a) give a copy of its determination to the patient (together with a statement of rights in a form approved by the President of the Tribunal); and > > (b) give a copy of its determination to - > > (i) if the order has required or will require the patient's admission to an approved hospital, the controlling authority of that approved hospital; and > > (ii) if the patient is also a forensic patient, the controlling authority of the relevant SMHU; and > > (iii) the Chief Psychiatrist. > > (4) The Tribunal is not to vary a treatment order so as to require a patient who is a child to be admitted to and, if necessary, detained in an approved hospital unless it is satisfied that the approved hospital - > > (a) has adequate facilities and staff for the appropriate treatment and care of the patient; and > > (b) is, in the circumstances, the most appropriate place available to detain the patient.

3. When reviewing a treatment order under s 181(1)(a), the Tribunal is required to consider whether the patient continues to meet the treatment criteria provided in s40 of the Act. 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.

4. Further, in reviewing a treatment order pursuant to s 181(1), 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.

5. The Tribunal must also consider the right of patients contained in s 15A of the Act:

15A. Rights of patients > > (1) Each person receiving an assessment or treatment under this Act has the following rights: > > (a) the right to receive the assessment, or treatment, under this Act in accordance with the mental health service delivery principles; > > (b) the right to have any restriction on, or interference with, the person's dignity, rights and freedoms to be limited as much as possible when taking into account the person's health and safety and the safety of others; > > (c) the right to promote, and make prominent, the person's decision-making capacity, and to respect the person's wishes, to the maximum extent possible when taking into account the person's health and safety and the safety of others; > > (d) the right to be given clear, accurate and timely information about - > > (i) the person's rights as a patient; and > > (ii) the person's diagnosis and treatment. > > (2) In addition to the rights under subsection (1) , a person who is a forensic patient, or involuntary patient, also has the following rights while admitted to an approved facility: > > (a) the right to be detained in a manner that is appropriate in respect of the patient's assessment, treatment or care requirements; > > (b) the right to be given clear and timely information about the rules, and conditions, governing the patient's conduct in the relevant approved facility, including any relevant context in respect of a change in those rules or conditions while the patient is at the relevant approved facility; > > (c) the right to have access to current information about local, national and world events; > > (d) the right to ask for a leave of absence from the relevant approved facility; > > (e) the right to seek legal advice and have contact with, including the right to correspond privately with, Official Visitors and the patient's representatives and support persons; > > (f) the right to be provided with general health care; > > (g) the right not to be unreasonably deprived of any necessary physical or communication aids; > > (h) the right - > > (i) to wear suitable clothing of the patient's own, if appropriate in the relevant approved facility; or > > (ii) to be provided with basic clean clothing that is appropriate to the climate and the patient's size; > > (i) the right to be provided with - > > (i) food that is adequate to maintain the health and wellbeing of the patient; and > > (ii) a diet that has reasonable variation; and > > (iii) special dietary food, if the Chief Psychiatrist is satisfied that it is necessary for medical reasons, the patient's religious beliefs or the patient's dietary practices; > > (j) the right to adequate toilet and sanitary arrangements; > > (k) the right to adequate light and ventilation; > > (l) the right - > > (i) to practise a religion, or custom, in accordance with the patient's religious or cultural beliefs; and > > (ii) if consistent with the management and security requirements of the relevant approved facility - > > (A) to join with other patients in practising the religion or custom; and > > (B) to possess such articles as are reasonably necessary for the practice of the religion or custom; > > (m) the right to ask for, and receive, such reasonable help from the staff of the relevant approved facility so as to enable the patient to enjoy the rights specified in this section.

6. 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. 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.

1. In Dr KQ's 60 day review report, he says that SI has schizophrenia. For further context as to the diagnosis, the Tribunal noted that in his original application for the order, dated 29 January 2025, Dr KQ asserted that the patient has late onset schizophrenia and -

... When acutely unwell with an exacerbation of psyhosis (sic) [SI] can and does exhibit a range of delusions, formal thought disorder and disturbed behaviour which are directly attributable to her Schizophrenia...

2. At the hearing, Dr KQ said that the diagnosis of schizophrenia has been a long-standing diagnosis with admissions for psychotic episodes documented from 1999 through to July and August of 2024. He said "the diagnosis has been consistent for several years, it remains consistent now". Dr KQ said -

It includes, when acutely unwell, a range of symptoms. These can include anywhere from a number of different types of delusions, at times auditory hallucinations, behavioural disturbance, disorganisation and lability of her affect as well. When well though, many of these more prominent symptoms are absent, and the principal symptom that remains is that there is a steadfast, unshakeable belief that the illness psychotic disorder that we call schizophrenia is attributed to many other conditions, this being either, for example, things like delirium, or anxiety or any number of other viruses. This has been investigated every time and it does not follow that pattern of those illnesses. The treatments, while they may share some similarities, the time course in which those treatments are given does not share with a pattern that you would use to treat in those other illnesses or diseases and this has been repeatedly talked through with [SI] when she is more well but even to the present day with the last review on the 14th of May, it is quite unshakeable that this is not related to schizophrenia and it is held with a delusional intensity.

3. At the hearing, the patient generally denied having schizophrenia, positing the question why her friends who work at the hospital and are doctors, but who are not aware of the diagnosis, wouldn't have done something about it if she had been so acutely unwell. SI also explained that the misdiagnosis came about when in January 2021, there was an incident in which she reported a disturbance. She called police and an ambulance. By the time they arrived, the disturbance was over but emergency services spoke with her daughter, who told them that SI had schizophrenia. At that time, SI had only recently reunited with her daughter who she hadn't been seeing for over ten years. SI explained she has had great difficulty in obtaining an independent assessment from a psychiatrist.
4. CK sought to explore a possible misdiagnosis further with Dr KQ, with a view to ruling out all alternative explanations for SI's presentation. CK acknowledged that every time SI ceases taking her medication, she experiences a relapse. He enquired whether it is possible that withdrawing from the medication itself could trigger an episode that would mimic an episode of relapse of schizophrenia, but is in fact symptoms of withdrawal from the medication, noting that in his understanding, this possibility had not been trialled. There was some discussion about this issue but in summary, Dr KQ's answer to this question was no. That even if this were possible with some of the older antipsychotic medications, causing, for example a form of delirium, it would be easily identified by an experienced psychiatrist. Dr KQ also noted that in fact, in SI's case, withdrawal from antipsychotic medication had been observed on many occasions. This was not through controlled trial but through SI disengaging, reducing or ceasing treatment. Each time that occurred, she experienced a relapse of schizophrenia, which was not consistent with the possibility that the experience related to withdrawal from the antipsychotic.
   1. 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 proponent for the continuation of an order, or other member of a patient's treating team supporting a review, must present evidence and information sufficient to enable the Tribunal to conclude, having taken account of the nature of the order and the consequences which might flow to the patient, that on the balance of probabilities each criterion required to continue an order to be made has been met.
   2. It is clear that the patient does not accept the diagnosis of schizophrenia and continues to look for an alternative explanation for her relapses and hospital admissions. However, there is no evidence to support an alternative view.
   3. Dr KQ, in his written application, 60 day review report and at hearing, has provided cogent evidence which explains why the view has been formed that the patient has a mental illness and which also makes clear that other possible causes for the patient's symptoms have been extensively investigated and ruled out. There is no evidence before the Tribunal contrary to the opinions of Dr KQ. We are satisfied to the requisite standard upon the evidence and information provided by Dr KQ, 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.

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.

In the 60 day review report, Dr KQ set out the risks to the patient if she were not treated. He said:

There are a range of risks to physical health, reputation and mental illness without treatment of the same. These risks remain consistent to the present day and are ameliorated by large extent by the ongoing delivery of treatment only possible via the mental health act and the associated Treatment Order...

At the hearing, Dr KQ informed us that when acutely unwell, there are more risks. When more well, those risks are "significantly diminished and that would be the case at the moment". He said further -

When unwell with her disturbed behaviours or delusions, there is, and with each relapse of psychotic episode there is increasing risk of future psychotic episodes, as evidenced by increasing frequency of admissions in the last 3-4 years. That has been when the majority unfortunately of [SI's] admissions has come about. So the frequency increases, the intensity of those psychotic episodes increases. The duration of hospitalisations increases.

Dr KQ explained that SI sporadically acts upon her beliefs and hallucinations and on one occasion was reported to be driving quite unsafely. He acknowledged this was once only in 2001 but offered it as an example of action based upon the psychosis occurring at the time. He said there are other ways that this occurs, not driving, but it does occur where she is influenced by the psychosis at the time. One unifying feature through those psychotic episodes is that they are "quite frightening, there is quite a lot of distress and [SI] is quite upset". He said that separately. SI's contact with mental health services also causes her distress. Finally, Dr KQ said there can be a degree of self neglect when SI is unwell, albeit it is not uniform every episode. He said that all of the risks are reduced or ameliorated to a degree with treatment, noting SI presents quite well now in many respects. Dr KQ summarised;

there is harm when she has these acute episodes and that harm is related often to the unilateral cessation or reduction of medications and this has been a consistent pattern over several years since her first presentation in 1999 and subsequently. And that has not changed in the time that I've known [SI] and I would not expect that to change in the future either...

The patient said generally that she is functional in the community, that she lives a full life and has many friends and associates who are not even aware that she has a diagnosis. She did not accept any risk to her health and safety in ceasing the medication, other than potentially experiencing side effects from withdrawing from the medication. On the contrary, SI felt that continuing to be treated with antipsychotic medication carried great risk. 8. We are satisfied that the evidence indicates that without treatment the patient's mental health is likely to deteriorate resulting in further, more frequent hospitalisations following relapse of illness, which may increase in duration and severity, and/or significant distress to her and placing her reputation, health and safety at risk of serious harm. This criterion is satisfied.

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 affirm, vary or discharge the treatment order upon review, we must be satisfied that 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. In the 60 day review report, Dr KQ stated that:

... The patient has repeatedly become unwell when not taking treatment and this consistently the case when the Treatment order has been discharged. There is no evidence currently that this situation has changed.

The use of oral medication relies inherently on that person's compliance to take those medications and it might well be the best medication in the world but if you don't take it, it will not do anything. Or if you do not take it at the appropriate dose, it will not work effectively or potentially do nothing. And so the depot delivery system of giving this medication is appropriate and is required to maintain some form of compliance with the medication especially when there is this inherent belief that it is not required or the role of it is for a disorder or a disease unrelated to the psychotic disorder which is schizophrenia. The reason why I say that for example is in delirium you will sometimes use antipsychotics but you will use them for a short period of time and then you will wean and cease. That is normal and acceptable and done all the time. With a person with a chronic psychotic disorder such as schizophrenia the chances of relapse, you do not wean and cease. You can initially but the chances of relapse increase exponentially every time that person has a relapse and so you do not wean and cease that antipsychotic so that is the inherent difference between a delirium versus a psychotic disorder.

5. Dr KQ went on to explain that the depot medication prescribed to the patient is paliperidone. It is one of a few antipsychotics that can be administered in depot form. He said "it is a safe, effective medication to use." When the patient was in hospital in August 2024, she was placed back on a higher dose of paliperidone. He opined that the patient does not require such a high dose so this has now been reduced to a dose she has had previously which was effective because the treating team "always try to go for the lowest effective dose". He said the current dose is 50mg four weekly. He explained that, as with any medication, this medication is not without risk. He said side effects for this medication can include a range of effects, such as movement disorders, endocrine disorders, metabolic disorders and those can be observed and managed as they arise and minimised by the lowest effective dose. Dr KQ acknowledged that SI is currently presenting well and functioning within her social networks and community.
6. The patient expressed serious concerns about the side effects of both a previous antipsychotic she had been treated with, as well as her current prescribed medication. SI explained that she requested a prolactin blood level test result from her doctor, which was high. Her research has revealed that if that is caused by medication the medication should be adjusted to help those levels go down but doing this can cause side effects in itself, which can be even worse (such as heart problems). SI said that her medical history report, which has been provided to Dr KQ, makes clear that she has already suffered enough side effects of antipsychotic drug effects. She said there are serious mental side effects. The drug itself can cause panic attacks, confusion and other effects on mental state. SI stated she wants to apply for tapering off. She expressed that she wishes to live longer than she is likely to have a chance to if she continues to take these drugs. She said "its my mind, body and life you are messing about with". SI spoke of her awareness of an increasing risk of sudden cardiac death, especially in older adults. She also said that depot injections are extremely painful. She has noticed that her concentration is not as good as it previously was and that she tends to become tired more quickly, which SI also attributes to the antipsychotic medication. The patient stated that the medication is not what is keeping her well and, instead, she is suffering side effects from it.
7. We considered the side effects described by SI as possibly being caused by the antipsychotic medication and accept that SI is genuinely concerned and distressed about those potential side effects. We were, however, without any medical evidence showing that these side effects exist, and if so, are caused by the antipsychotic medication. We accepted the evidence as to the professional and experienced opinion of Dr KQ that the treatment being administered is appropriate and effective for the patient as defined in the Act. The prescribed medication is directed towards the management of the ill effects of the patient's mental illness, and has had the effect of resolving the patient's positive symptoms to a large extent and allowing the patient to function well in the community. Engagement with mental health services under the treatment order also allows the treating team to observe and monitor SI for side effects, which is essential for the treatment to be appropriate and effective. The treating team appear to be taking a respectful and highly considered approach to the involuntary treatment of the patient given the patient's views as to the need for and effect of the treatment. This criterion is satisfied.

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

1. In the 60 day review report, Dr KQ provide the following opinion in relation to this criterion:

Due to a lack of insight and associated judgment into the specific condition of schizophrenia and psychosis; appropriate treatment and consideration of risks associated with this is not possible unless under the mental health act...

2. Dr KQ, at the hearing, said that informed consent refusal has been an issue for many years and he sought to address this criterion on that basis. He said orders have ceased many times for a variety of reasons and this has typically resulted in disengagement relatively quickly from mental health services and reduction or cessation of medication. Dr KQ said this had "admittedly variable time to relapse" but has recently become more increased in frequency and severity. He said the order is appropriate not just because it allows treatment with medication but because it provides for engagement with MHS to monitor SI and to ensure a period or wellness. He said that SI "cannot be managed in any other way than under a treatment order".
3. The patient told us that the medication is not keeping her well and she wishes to try tapering off the medications. She said she has support from friends, neighbours and people from the RSL club. The patient does not believe that she requires treatment for schizophrenia.
4. Having accepted the evidence of the treating team that the patient is not yet able to recognise her symptoms as reflective of her mental health condition, or the need for treatment for it and the consequences of not treating the condition, we are satisfied that the required treatment cannot be currently given without the continued imposition of a treatment order because the patient would not accept treatment as a voluntary patient and is not currently able to give informed consent to treatment. 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 the 60 day review report, Dr KQ opined a view that the patient lacked decision making capacity, stating that:

The patient does not recognise the illness, the role treatment has in the illness & the risks associated with the illness to herself directly. The patient consistently attributes illness to diseases and conditions which are not consistent with the pattern of symptoms or timeline of the patient's condition. Recovery of illness is attributable by the patient to treatments of these other conditions, this despite repeated education demonstrating otherwise. Judgement in decisions about illness are directly influenced by impaired insight into her condition, thereby impacting upon ability to give informed consent or refusal.

Now and over many years that I've known [SI], she disagrees with the diagnosis, she does not believe in the diagnosis, she believes it is anything other than. Has felt that the treatment in the manner in which its used is not appropriate. Has consistently said, stated that she wishes to have the dose reduced very slowly or effectively, essentially either denied the requirement for that medication or stated the wish for this to be used in the manner for a disorder or a disease which she does not have, like delirium, where I give you the example around the antipsychotic. Or that the medication has to be reduced slowly to prevent a relapse for fear of a rebound psychosis but the psychosis has happened so many times, the chances of that being the case are infinitesimally small. So the illness, the treatment. She does not believe are effective or appropriately used. She does not agree with the risks that we see when acutely unwell and/or that when more well, that with stopping that medication puts her at greater risk of a return of that psychotic episode. And that has been consistent and directly impacts upon her judgement of the use of those medications and her illness when she doesn't recognise the illness or the reasons or the manner in which those treatments are used to treat that illness. And that has been consistent despite getting better when on treatment and really does impact upon the judgment and informed consent refusal for those medications now and I suspect going into the future given that has been so consistent over several years now.

4. Dr KQ further expressed the view that [SI] is a "resourceful woman" who presents well and functions well within her social networks and community and those things are not in dispute. He said -

It is purely the role of a treatment for the disorder that is schizophrenia that is where that capacity, that ability to give that informed consent and refusal falls down and is unable to be managed in any way other than using the Mental Health Act. And so I think the order ensure compliance, it ensures wellness and there is no other way.

5. For further context, in the original application for treatment order, dated 29 January 2025, Dr KQ stated:

Insight and adequate judgement into the illness and treatment there-of is directly influenced by residual beliefs which are essentially delusional regarding Schizophrenia. Unfortunately, despite other delusional beliefs, formal thought disorder, perceptual disturbances and disturbed behaviour, this delusional belief (sic) structure remains entrenched despite the use of paliperidone. Regardless, the lack of insight and judgement into this key domain directly still impacts upon [SI's] ability to make independent and informed decisions around her mental illness... > > [SI] does not retain relevant and critical information into the management of her psychotic illness. This has been a sustained feature of her illness... > > [SI] cannot weigh information relevant to the management of her Schizophrenia as she she (sic) lacks insight into features of her illness such that she cannot make an informed decision as to consent or refuse treatment in this regard.. > > [SI] is able to communicate a decision made; however, this does not reflect understanding of the features of her illness as it pertains to a diagnosis of Schizophrenia.

6. The Tribunal received clear evidence that the patient was unable to recognise her symptoms 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.
2. Upon review of a treatment order, the Tribunal is to affirm, vary or discharge the order. We reviewed the terms of the current order and determined that the terms were appropriate and required no variation.

1. The treatment order made for the patient on 13 February 2025 is affirmed.