Mental Health Act 2013 (Tas) ss, 4, 6, 7, 12, 15, 40, 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. CHH (the patient) is a 30-year-old male who lives by himself in a flat at his mother's property in [regional Tasmania]. CHH is currently unemployed. Prior to his recent admission to hospital, CHH has been case managed by Adult Community Mental Health Services (ACMHS), on a voluntary basis.
2. An application for a treatment order for CHH (the application) was filed on 8 August 2025 by the Tasmanian Health Service with the Tasmanian Civil and Administrative Tribunal (the Tribunal). The Tribunal made an interim treatment order on the 8 August 2025 which was to expire on the 18 August 2025. The application was listed to be heard on 12 August 2025.
3. The hearing proceeded on 12 August 2025 and was heard at the Tribunal's premises, 38 Barrack Street in Hobart and via video link. CHH, the applicant Dr MDH, psychiatry registrar, KRR clinical lead, BC social worker, BL and T registered nurses, and Dr TN, psychiatric registrar (observing) all attended the hearing by video link. At the end of the hearing, we provided our determination and our oral reasons. CHH became verbally aggressive and appeared to be agitated and chose to leave the hearing before we provided our oral reasons.
4. CHH has requested written reasons. 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. Dr MDH gave evidence at hearing that CHH had experienced a deterioration in his mental state in the 4 weeks prior to his admission. CHH was refusing medications and was brought to the emergency department for admission, after review with a medical practitioner.
2. Dr MDH stated CHH has a diagnosis of schizophrenia since he was 18 years old and presented to hospital with symptoms suggesting acute psychosis, complicated by substance use. Dr MDH noted CHH has Cluster B and C personality traits. We heard CHH's symptoms included auditory and visual hallucinations and delusions of persecution and being detached from reality. At the time of hearing Dr MDH stated CHH was irritable, responding to external stimuli and believed he could hear and see demons.
3. CHH did not comment on whether he had mental illness. CHH confirmed he had multiple admissions to hospital in Victoria, because 'he was doing amphetamines quite frequently." CHH stated:

I was around drugs before I came to hospital. I didn't do them, but I was around them both (sic).

4. We accept the evidence of Dr MDH and find that CHH has a mental illness, namely schizophrenia.

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 her oral and written evidence Dr MDH stated that without treatment CHH's symptoms are likely to worsen, especially if CHH continues to engage in substance use. Dr MDH also opined that CHH is at risk of self harm as he is wanting to take blood from his body to "allow the demons to leave his body."
5. CHH did not respond to this evidence.
6. We accept the evidence of Dr MDH that without treatment CHH's mental illness is likely to deteriorate causing harm to both his health and safety, and most probably requiring readmission to hospital for ongoing 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 her oral evidence, Dr MDH stated that CHH is receiving inpatient treatment currently in the high dependency unit (HDU) in the mental health unit of the hospital and was receiving one on one supervision, treatment and care.
3. Dr MDH stated CHH was receiving quetiapine, lorazepam and olanzapine with a plan to transition from oral antipsychotic medication to a depot antipsychotic medication. Dr MDH confirmed this treatment is proposed moving forward including follow up by ACMHS once CHH is discharged from hospital, as well as metabolic and physical health monitoring and regular blood and urine testing
4. Dr MDH opined that the optimisation of CHH's treatment will control his symptoms of acute psychosis and return him to his baseline.
5. Based on all the evidence, we find the treatment being provided and proposed, is appropriate and effective as it is likely that CHH's psychotic symptoms will continue to improve and resolve. We find s 40(c) of the Act is met.

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

1. Dr MDH stated CHH was requesting to leave the hospital because he did not believe his symptoms were related to his mental health, but instead believed he needed spiritual help and wanted to attend the mosque. Dr MDH opined that as CHH does not believe he needs treatment for mental illness it is likely he would leave and disengage from ACMHS and treatment.
2. Dr MDH indicated CHH usually ceases his medications when he starts to become unwell, as has occurred prior to this admission.
3. CHH expressed he did not need to be in hospital. In response to questioning by the Tribunal, CHH confirmed if he wasn't on a treatment order, he would leave hospital and go straight to the mosque. In relation to the medications CHH stated he would take the Quetiapine and the Lurasidone but not the Olanzapine. CHH indicated that Olanzapine is an "evil drug" as it makes you "stupid, tired and fat."
4. We find that CHH is likely to leave the hospital and cease treatment if he was not on a treatment order. Further, we find s 40(d) of the Act is met, because CHH lacks decision making capacity for treatment, which is addressed below. Lawful authorisation is required under the Act to treat CHH, and as such, a treatment order is required.

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 MDH opined that CHH does not have decision making capacity as he was presenting acutely psychotic and detached from reality. Dr MDH stated CHH is unable to understand and use and weigh information to make and have adequate decisions related to his mental health in terms of retaining the information relevant to the decision, CHH has showed limited ability to retain the information provided.
2. We find that CHH is acutely psychotic, which is impairing the functioning of his mind and his perception of reality. By reason of this we find CHH is unable to understand, use and weigh information and retain information relevant to his mental illness and the treatment of it. We heard from CHH that he is fixed on discharging from hospital and going to the mosque to obtain spiritual help and does not recognise the benefits of remaining in hospital and receiving treatment.

1. As indicated, we are satisfied that CHH 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 CHH.

1. A treatment order for CHH was made for a period of six months and is due to expire on 11 February 2026 at 4.10pm, unless discharged by the Tribunal or an approved medical practitioner sooner.