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

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. ULX (the patient) is a 35-year-old woman who was residing in [regional Tasmanian] prior to her admission to hospital.
2. An application for a treatment order (the application) was filed on 14 July 2025 by the Tasmanian Health Service with the Tasmanian Civil and Administrative Tribunal (the Tribunal). The Tribunal made an interim treatment order on the 14 July 2025 which was to expire on the 24 July 2025. The application was listed to be heard on 22 July 2025.
3. The hearing proceeded on 22 July 2025 and was heard at the Tribunal's premises, 38 Barrack Street in Hobart. The applicant, Dr PG psychiatry registrar, ULX and her legal representative Rylee Olsson from Tasmania Legal Aid and advocate Matthew Wooley from Advocacy Tasmania all attended the hearing by video link. At the end of the hearing, we provided our determination and our oral reasons.
4. Ms Olsson requested written reasons, albeit outside of the 21-day timeframe in Part 6 of the Mental Health Act 2013 (the Act). These are our reasons.

1. We are required to determine whether the patient meets the treatment criteria in s 40 of the Act. 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.

1. 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:

(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.

1. 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:

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;

...

1. Both the written evidence and oral evidence of Dr PG provides that ULX has a diagnosis of bipolar affective disorder since 2023 and has had prior episodes of depression.
2. By way of background, we were told ULX had attended a general practitioner in July 2025 with a friend who was concerned about changes in her behaviour, and on review the general practitioner had referred ULX to the emergency department of [a regional hospital]. Dr PG stated ULX presented to [regional hospital] with concerns of being drugged, reduced need for sleep and poor adherence to medication which she was on for pre-existing mood disorder, on a background of psychosocial stressors. After she was assessed as having a manic relapse of bipolar affective disorder, she was transferred to [city] hospital.

... she was noted to be elevated with psychomotor agitation, over familiar with other patients waiting in ED [emergency department]. She was pressured in speech and her thoughts were with paranoid themes.

3. Dr PG stated there were ongoing symptoms of elevated mood, flight of ideas, reduced sleep and disinhibition.
4. ULX and her legal representative agreed with the diagnosis.
5. We accept the undisputed evidence of Dr PG and find that ULX has a mental illness.

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 provided interpretative commentary on s 40(b) in two previous decisions.
2. In S v Mental Health Tribunal [2016] TASSC 34, his Honour mentioned 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. 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 10 at [14].
4. In his oral and written evidence Dr PG stated that without treatment there is a serious risk of ULX's mental state deteriorating which would seriously harm her health and safety. Dr PG also noted if ULX's mental illness was not treated, there is a serious risk she will experience suicidal thoughts which she may act on. The application indicates that ULX had threatened she would end her life if admitted to [unit at regional hospital].
5. We accept the evidence of Dr PG that without treatment UXL's mental illness is likely to deteriorate causing harm to both her health and safety, and most probably requiring readmission to hospital for intensive treatment. We are satisfied that 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 - > > (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.

1. In S v Mental Health Tribunal (supra), his Honour Blow CJ commented on the interpretation of this criterion at [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).

2. In his oral evidence, Dr PG stated that ULX is receiving inpatient treatment and as a result of the intensity of ULX's current symptoms she is being treated in the high dependency unit (HDU) in the mental health unit of the hospital.
3. Treatment being provided to ULX included psychoeducation, medications including Olanzapine, Lithium and Benzodiazepines. Dr PG confirmed this treatment is proposed moving forward including follow up by adult community mental health services when ULX is discharged from hospital. Dr PG also indicated blood and urine testing and imaging was required as part of ULX's treatment.
4. Dr PG opined that the treatment being provided to ULX is clinically indicated to treat a manic relapse of bipolar affective disorder. Dr PG stated the treatment is considered to be appropriate and effective to stabilise UCG's mental state and resolve her symptoms of mania. Dr PG acknowledged that since treatment had commenced, ULX's symptoms had improved.
5. UXL's legal representative confirmed criteria 40(c) is not disputed. Mr Woolley submitted that ULX is concerned she is in HDU.
6. Based on the undisputed evidence, the Panel of the Tribunal find the treatment being provided and proposed, has been partially effective to date with some improvement of ULX's symptoms. We further find that it is likely that ULX's manic symptoms will continue to improve and are likely to resolve. Further, we note the treatment is clinically indicated for the diagnosis of Bipolar Affective Disorder. We accept Dr ULX's evidence that ULX is in the HDU because of the intensity of her symptoms and over familial behaviour. While we note that ULX does not wish to be in the HDU, we find it enables ULX's mental state to be regularly monitored and evaluated; and reduces the risks ULX poses to herself; and ensures she receive prompt and responsive treatment for her symptoms. We find the treatment of UXL is appropriate and effective.

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

1. Dr PG stated when ULX came to [regional hospital] she left hospital and needed to be brought back. Dr PG opined that a treatment order needs to be in place to treat her due to her poor level of insight and her decision-making capacity remains impaired. Dr PG stated since ULX came to hospital she has wanted to be discharged as she doesn't think she needs the level of support or treatment being provided.
2. In response to this, ULX commented that she had had a long wait in the emergency department in [regional hospital] and just wanted to get help. She confirmed she left the hospital and revved up her vehicle outside the hospital before leaving the area. She later indicated she did not want to be admitted to the [unit] of the hospital and was mistrusting of health practitioners. She did however acknowledge that the "medications have levelled me out."
3. ULX also commented that being in hospital made her upset and triggered her anxiety. When asked "if it was her decision and no treatment order was in place, would she leave the hospital today?" ULX replied:

As someone with a disability we have choice and control and my choice would be that I would be organising to go and live with my father who can support me and my family. I want to leave today.

4. ULX indicated she had a lot to sort out to do including a ticket on the Spirit of Tasmania, to collect my things, get a storage container, and to pay her bills. She confirmed she had lost her job because of her postings on Facebook and needed to consider alternate employment. ULX confirmed:

I don't have a home to go to. I will be uprooting and going to my Dad's but I need to start planning and getting ready for my life and I think I am well enough with the medication I am taking, lithium seems ok it is not something I want to stay on forever. I think I am in a very good mental health state and I am able to manage my life on my own.

5. ULX indicated her proposed plan to manage her current condition if she was to leave the hospital was to stay in [regional Tasmania] at her friend's house and then at some point move to live with her father in [another State]. UXL said she wants to see the "sun and the moon" and "have a cigarette" if she wants to and have her choice and control and indicated "in hospital I do not have choice and control."
6. We asked Dr PG if ULX had self ceased her Lamotrigine medication before her admission to hospital and Dr PG confirmed this was the case. This was consistent with the evidence given by ULX herself.
7. Further, Dr PG stated ULX currently has impaired decision-making capacity for decisions pertaining to the treatment her mental illness, and on this basis cannot provided informed consent or objection to treatment, and therefore a treatment order is required to treat her.
8. Mr Woolley submitted ULX has decision-making capacity and could be a voluntary client.
9. Ms Olsson submitted that ULX's preference to discharge from hospital is reasonable, and indicated ULX finds the hospital environment disruptive.

She is engaging with the treatment and would continue to engage, whether that be here in Tasmania or seeking out those supports in a relocation to be closer to her family which would also be a motivating and stabilising factor for her mental health.

10. We do not accept Ms Olsson's submission that ULX will engage with treatment, if not on a treatment order; or Mr Wooley's submission that ULX has decision making capacity and could be a voluntary patient.
11. The majority of the panel of the Tribunal is satisfied on all the evidence, that ULX cannot be adequately treated except under a treatment order. We make this finding based on ULX's expressed wish to leave hospital immediately and the probable outcome of her self ceasing treatment, as she has previously done and disengaging from mental health services if a treatment order is not in place. We accept Dr PG's evidence that since her admission ULX has wanted to leave hospital and only in his review of her the day before hearing has she indicated greater engagement with treatment. Further, we make this finding based on ULX's decision making incapacity for treatment, which is addressed below. Lawful authorisation is required under the Act to treat UXL, and as such, a treatment order is required. We find s 40(d) of the Act is met.
12. The findings and determination of the dissenting member of the Panel who disagreed with this finding, are at the end of these reasons.

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:
   1. 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).

1. Dr PG states ULX has an impairment of her mind by reason of her manic symptoms which impairs her ability to understand and use and weigh information relevant to her current presentation and her mental illness and treatment of it. Dr PG opined that ULX is unable to fully understand the risks of not having treatment or the benefits of treatment of her mental illness
2. Ms Olsson submitted that:

[ULX] does have decision-making capacity about her treatment, she does have insight into her mental health. She has taken initiative and been proactive about not only learning about her diagnosis but also about the medications she is taking and the effects of all of those. She has demonstrated an interest in her treatment and the outcomes of that treatment and her recovery. Her preference to discharge or be out of hospital is a reasonable preference to have. It can be very disruptive for people to be admitted to hospital in any circumstance but particularly with a background of psychosocial stressors of ULX that require her attention. It is difficult for her to address those in the current situation. My submission is ultimately that preference or decision is not determinative of lacking decision-making capacity.

3. The majority of the panel of the Tribunal rejects the submission of Ms Olsson that ULX has decision making capacity for treatment of her mental illness. No alternate medical evidence was put to us. Based on the evidence of Dr PG we find ULX has an impairment of the functioning of her mind by way of her manic symptoms which impair her ability to understand and use and weight information relevant to her mental illness and the treatment of it. We find section 40(e) of the Act is met. We find that the stated plans of ULX, were the treatment order not to be in place, were disorganised and poorly formulated, and of themselves, in keeping with the symptoms of ongoing mania as described by Dr PG.
4. The findings and determination of the dissenting member of the Panel who disagreed with this finding, are at the end of these reasons.

1. As indicated, we are satisfied that ULX meets the treatment criterion. In exercising our discretion, we are required to take account of the objects of the Act (s 12) and the mental health service delivery principles (Sch 1). Given the evidence before us, we were satisfied that we should exercise our discretion and make a treatment order for ULX.
2. We note that without further involvement of the Tribunal, and in the event that an approved medical practitioner assesses ULX 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)).

1. A treatment order for ULX was made for a period of six months and is due to expire on 21 January 2026, unless discharged by an approved medical practitioner sooner.

1. This dissent relates only to the requirement that the Tribunal finds that:
   1. the treatment cannot be adequately given except under a treatment order - s 40(d); and
   2. the person does not have decision-making capacity - s 40(e).

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

1. I refer to the discussion of evidence provided above in paragraphs [26] to [34] above.
2. Based on the evidence presented, particularly from ULX, I am not persuaded that ULX would be non-compliant with medication. ULX acknowledged she has bipolar disorder and submitted that her presentation is complicated by hypothyroidism. ULX detailed her desire to understand and manage her medications and acknowledged that the medication helps her and has 'levelled [her] out'. She noted that she had been started on Lithium the day before the hearing and stated she would consult with doctors in [rural region], where she intended to travel to in order to be with her father.
3. I note the submissions of Ms Olsson that:

Her preference to discharge or be out of hospital is a reasonable preference to have. It can be very disruptive for people to be admitted to hospital in any circumstance but particularly with a background of psychosocial stressors of ULX that require her attention. It is difficult for her to address those in the current situation. My submission is ultimately that preference or decision is not determinative of lacking decision-making capacity.

4. I accept these submissions and ULX's evidence that indicated an understanding of her mental illness and her need to receive and continue treatment.
5. On this basis, I am not persuaded that the treatment ULX requires cannot be given except under a treatment order. As such, the requirement of s 40(d) is not satisfied and I would dismiss the application.

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

1. I refer to the discussion of evidence provided above in paragraphs [38] to [40] above.
2. Based on the evidence presented, I am not persuaded that ULX does not have the capacity to make decisions relating to her treatment.
3. As noted previously, the term 'decision-making capacity' is defined in s 7 of the Act:
   1. 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).

1. The evidence presented did not satisfy me that ULX's mental illness is such that she is unable to make the relevant decisions or that she is unable to (or did not):
   1. understand information relevant to the decision; or
   2. retain information relevant to the decision; or
   3. use or weigh information relevant to the decision; or
   4. communicate her decision.
2. Again, I note the submissions made by Ms Olsson that:

[ULX] does have decision making capacity about her treatment, she does have insight into her mental health. She has taken initiative and been proactive about not only learning about her diagnosis but also about the medications she is taking and the effects of all of those. She has demonstrated an interest in her treatment and the outcomes of that treatment and her recovery. Her preference to discharge or be out of hospital is a reasonable preference to have. It can be very disruptive for people to be admitted to hospital in any circumstance but particularly with a background of psychosocial stressors of ULX that require her attention. It is difficult for her to address those in the current situation. My submission is ultimately that preference or decision is not determinative of lacking decision-making capacity.

3. I accept these submissions and find that, on the evidence, I am not persuaded that ULX lacks decision-making capacity. As such, the requirements of s 40(e) are not satisfied and would dismiss the application.