TASCAT|2025-11-28|Before: Member Thompson, Member Jordan

The application detailed the treatment given to GMH as an inpatient in an approved facility and anticipated upon discharge treatment in the community. The application detailed administration of regular medications including antipsychotics, mood stabilisers and benzodiazepines. Consideration would be given to depot formulation in the future. Dr PQ stated GMH was treated in an inpatient setting as she presented as "acutely unwell with fleeting suicidal ideations, high lethality impulsive suicide attempt and symptoms of hypomania". Historically GMH has responded well to psychotropic medication and has remained out of hospital for long periods. It is anticipated under treatment her symptoms would resolve and enable her to return to the community.
At the hearing Dr NC stated GMH continued to be treated with sodium valproate and they were increasing the dose. She was also receiving a "low dose" of the antipsychotic quetiapine which was having a "calming effect" and assisting with sleep. Regular diazepam was administered to aid with symptoms of "distress irritability" and to help with sleep. Antidepressant medication is not clinically indicated due to her current manic relapse however if GMH presents in a distressed or depressed state an antidepressant would be considered. GMH was being treated on the low dependency inpatient setting.
GMH said she was "really impressed" with the treatments as they made her feel "more content". She considered the treatment "effective". However, she wished to be treated in the community.
The Tribunal accepted the expert evidence of the treating team and was satisfied that the treatment was appropriate and effective treatment for GMH's mental illness as defined in the Act and in accordance with evidence-based treatment for the nature and symptoms of GMH's mental illness. The Tribunal was satisfied that GMH had previously responded well to psychotropic medication. The Tribunal acknowledged GMH's statement that she considered the medications were effective treatment however she disputed the location of delivery of treatment. The Tribunal was satisfied that criterion was met.

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

In the application Dr PQ stated that treatment could not be adequately given except under a treatment order because GMH presents with a diagnosis of manic relapse of her bipolar disorder and presented with hypomania which impaired her focus and "distorts her perception of reality". GMH was unable to understand the information relevant to the decision. At the hearing Dr NC concurred with Dr PQ's assessment and highlighted the serious risks of harm to GMH.
Mr Woolley and GMH stated she wished to be a voluntary patient.
The Tribunal accepted the evidence of the treating team that the treatment could not be adequately given except under a treatment order. The Tribunal placed weight on the evidence of GMH, that she did not believe she was hypomanic and preferred treatment be delivered in the community. The Tribunal accepted the nature and severity of the risks as identified by the treating team. Further, the Tribunal was satisfied that GMH did not have decision-making capacity [49] - [52] and therefore GMH could not voluntarily consent to treatment. Accordingly, the Tribunal was satisfied s 40(d) treatment criterion was met.

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

Section 7 of the Act defines decision-making capacity and provides:

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).

Dr PQ stated in her application that GMH does not have decision-making capacity because of an impairment of or disturbance in the function of the mind or brain. Dr PQ stated that GMH had a diagnosis of hypomanic relapse of her bipolar affective disorder and "currently presents with hypomania which impairs her focus and distorts her perception of reality". GMH was unable to understand information relevant to the decision due to being highly distractible, tangential and demonstrated flight of ideas which made it difficult to have a meaningful discussion regarding current symptoms and recommended treatment. The symptoms of mental illness impact on GMN's capacity to comprehend the information that has been relayed to her. GMH is unable to retain information relevant to the decision, despite attempts to discuss treatment. GMH was unable to use or weigh information relevant to the decision due to her "distractibility, flight of ideas, erratic behaviour, poor insight, irritability". With those symptoms also affecting her ability to use and weigh information that has been provided to her.
At the hearing Dr NC stated GMH had impairment in her decision-making capacity due to her hypomania. She stated GMH's hypomania impaired her ability to focus and distorts her perception of reality. GMH could "be quite tangential" and "sometimes struggles to stay on topic". During clinical reviews she could not focus on the information, and she had "some preoccupation with other issues" as opposed to the conversation that was taking place. Due to her symptoms, she was unable to retain the information which had "led to some irritability and inattention" which sometimes had the "knock on effect" on her memory. She was unable to weigh the information relevant to the decision because of her "distractibility", "flight of ideas", "pressured thoughts" and therefore was unable to use the information "effectively" to make an informed decision. Dr NC stated that GMH was also a "highly intelligent lady", a "personable lady", an asset to the community and an excellent communicator.
Dr NC stated GMH does not "put down" her current symptoms as experiencing a mental illness. GMH was "not always in agreement" with the treating team as to "how best to deal" with her symptoms. An example of this being her differing view regarding the treatment setting of an inpatient unit and a lack of appreciation of the severity of risks.
GMH stated that she had decision-making capacity in relation to treatment decisions for her mental illness. Mr Woolley referred to the other community services GMH has utilised to support her mental health.
The Tribunal preferred and accepted the expert evidence of the treating team in relation to GMH's decision-making capacity. The Tribunal accepted that due to GMH's relapse in her bipolar affective disorder and hypomanic symptoms she was unable to understand that she has a mental illness which requires treatment to minimise the risk it poses to her mental and physical health if untreated. She was unable to understand that the symptoms she experienced were symptoms of mania, even when provided with information to the contrary. GMH's hypomania prevented her from being able to understand the serious risks and the benefits of treatment in an inpatient setting. She was unable to comprehend the need for inpatient treatment. The Tribunal found that GMH was unable to use the information due to her "distractibility", "flight of ideas", "pressured thoughts" and therefore was unable to use the information "effectively" to make an informed decision. The Tribunal was satisfied that GMH did not have decision-making capacity within the meaning of the Act and s 40(e) the criterion was met.

We were satisfied on the evidence before that GMH met the treatment criteria under s 40 of the Act. Consequently, on 7 November 2025 we made a treatment order in respect of GMH which remains in place until 6 May 2026 unless discharged sooner.

Civil and Administrative Tribunal Act 2020

GMH (Application for Treatment Order) [2025] TASCAT 218 (28 November 2025)

B v Mental Health Tribunal [2020] TASSC 10;

CMB v Mental Health Tribunal [2021] TASFC 4.

In the Supreme Court decision of S v Mental Health Tribunal [2016] TASSC 34, the Honourable Chief Justice Blow CJ interpreted this criterion. He stated at [22]:

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.

B v Mental Health Tribunal

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GMH (Application for Treatment Order) [2025] TASCAT 218 (28 November 2025)