Mental Health Act 2013 (Tas); ss, 4, 6, 7, 12, 40, 179, 181, Sch 1.

B v Mental Health Tribunal [2020] TASSC 10;

S v Mental Health Tribunal [2016] TASSC 34.

The decision has been anonymised for the purpose of publication

1. KNH (the patient) is a 32-year-old living in Southern Tasmania. He is described by the treating team as an intelligent, delightful and thoughtful person.
2. He is currently subject to a treatment order under the Mental Health Act 2013 (the Act). The Tribunal first made the current treatment order on 23 May 2024. The current treatment order represents the second time that the order has been renewed. It is not due to expire until 20 May 2026.
3. The Act requires that treatment orders are reviewed within intervals of 180 days so long as they remain in effect. We conducted such mandated review of the current order on 25 November 2025. Upon the conclusion of that review we determined that the order should be affirmed.
4. KNH contacted the Tribunal and requested a statement of reasons on 26 November 2025. These are the requested reasons.

1. Section 179(1)(b) of the Act mandates that the Tribunal is to review treatment orders (and their variation and discharge).
2. Provisions for the review of a treatment order are set out in s 181 of the Act, as follows:

181. Review of treatment order > > (1) The following provisions govern the review of a treatment order:

1. the Tribunal must review the order within 60 days after it is made if it is still in effect;
2. the Tribunal must further review the order within 180 days after it is made if it is still in effect;
3. 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;
4. 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) ;
5. 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;

1. 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.

1. on review, the Tribunal may affirm, vary or discharge the order.

1. When reviewing a treatment order under s 181(1)(c) of the Act, the Tribunal must be satisfied that the person the subject of the application continues to meet the treatment criteria provided under s 40 of the Act:

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. Further, in reviewing a treatment order the Tribunal needs to be alive to 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.

1. Finally, in exercising its responsibilities under the Act, the Tribunal must refer to the mental health service delivery principles set out in Sch 1 of the Act.

1. Turning to the treatment criteria under the Act:

The person has a mental illness - section 40(a)

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; 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. The information before us indicated that KNH was first diagnosed with schizophrenia in 2020 having been diagnosed with first episode psychosis in 2018.
2. In her report, Dr WK confirmed that KNH's schizophrenia diagnosis and indicated that his condition was characterised by:

negative symptoms of loss of spontaneity, poverty of thought, latency of thought, and low cognitive flexibility. Also persisting positive symptoms including retrospective delusions about telepathy and persecutory treatment. He remains insightless but passive.

3. KNH does not agree that he has a mental illness and told the Tribunal that his experiences are spiritual rather than psychological. He feels that he has been persecuted and bullied by the system. KNH did not however provide any medical evidence to support his position that he does not have a mental illness.
4. It was not disputed by KNH's mother or sister that KNH has a mental illness.
5. We preferred and accepted the expert evidence of Dr WK that KNH has a mental illness, specifically schizophrenia. Beyond KNH's personal belief that he does not have a mental illness; the tribunal was not provided with any evidence to support KNH's position.
6. The criterion is met.

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

1. Pursuant to s 40(b) the Tribunal is required to consider whether, without treatment, the mental illness will, or is likely to, seriously harm the person's health or safety or the safety of other persons.
2. We note that this criterion had been interpreted by the Supreme Court in the following matters.
3. In S v Mental Health Tribunal [2016] TASSC 34, Blow CJ 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.

4. In B v Mental Health Tribunal [2020] TASSC 10, Blow CJ provided further comments on the criterion 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.

5. At the hearing Dr WK expressed that in her opinion without treatment, KNH's mental illness would be likely to seriously harm his health and safety or the safety of others.
6. Dr WK's evidence indicated that without treatment, KNH's mental health would likely deteriorate and this has occurred on several occasions when KNH has ceased treatment. This concern was also shared by KNH's mother during the hearing.
7. Whilst unwell KNH has previously travelled interstate and overseas to evade treatment or engage in psychotically driven activities which has placed him at risk in the community due to increased vulnerability. In 2023, he was seriously assaulted in WA and sustained a serious head injury. KNH was previously incarcerated in New Zealand for several weeks without being able to access treatment after being motivated to travel by his illness.
8. Dr WK's opinion was that if KNH were to cease treatment he would remain a serious risk to others due to his history of recurrent delusionally-driven activities including unwanted contact with public figures and the victim of his current family violence order. Dr WK advised the Tribunal that KNH was convicted with respect to stalking an ex-girlfriend which was driven by delusional thinking. As a result, KNH was required to wear an ankle monitor which is now due to be removed.
9. KNH denied that he posed any risk to politicians. He indicated that he would not threaten, abuse or do any harm to them and that he just wants to voice his opinion. He also denied that he had stalked his ex-girlfriend. KNH disagreed that he posed a risk to himself or others.
10. We are satisfied on the evidence presented that without treatment, it is likely that KNH's mental health will decline and that as a result, his health and safety may be seriously harmed. This is on the basis of Dr WK's evidence that, on several previous occasions when KNH was not receiving treatment, he experienced episodes of poor mental health
11. Further given the evidence that KNH was convicted with respect to stalking an ex-girlfriend which was driven by delusional thinking, we also accept that without treatment there is a risk that the mental illness is likely to seriously harm the safety of others.
12. The Tribunal is satisfied this criterion is met.

The treatment will be appropriate and effective - section 40(c)

1. In determining whether to exercise the discretion to make a treatment order, the Tribunal must be satisfied that the outcome of the proposed treatment is appropriate and effective as outlined 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.

1. It was Dr WK's position that the treatment ordered by the current order remains appropriate and effective. KNH was previously prescribed zuclopenthixol but experienced significant side effects including sedation. Due to these side effects, KNH's medication was recently changed to paliperidone. Dr WK indicated that KNH is tolerating paliperidone much better and he hasn't required any additional medication to manage side effects. KNH still has beliefs which are related to his previous acute episode which was associated with his previous offending but the salience of these beliefs has diminished. In Dr WK's view, the medication was helpful for KNH as it allowed him to 'get on with life' in the community with out engaging in any of the behaviours which brought him into contact with the criminal justice system.
2. His case manager, DL reported that KNH is more motivated since the change in medication and appears to be more passionate about the things and activities he enjoys.
3. KNH and his family reported that he is less sedated and generally more himself with the change of medication. There was agreement from KNH, his family and the treating team that the change of medication had been positive for KNH.
4. We accepted the expert evidence of Dr WK that the treatment proposed in the application is appropriate and effective for KNH as defined in the Act. We are satisfied that this criterion is met.

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

1. Dr WK and DL highlighted their concerns that without a treatment order KNH would not be willing to accept treatment.
2. KNH was very clear in his evidence that without an order compelling him to do so he would not accept treatment. KNH did not feel that medication and treatment were needed as he does not agree he has a mental illness. He indicated that his approach is 'If it's not broke, don't fix it' and felt he is better off without medication.
3. We accept the uncontested evidence that KNH would not be likely to accept treatment if not under a treatment order. Accordingly, we are satisfied that treatment cannot be adequately given except under a treatment order.

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

1. The term 'decision-making capacity' is defined in s 7 of the Act:

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).

1. Dr WK provided evidence at the hearing that it was her view that KNH currently lacks decision making capacity. She opined that KNH is unable to make a decision about his assessment or treatment because of an impairment of, or disturbance in, the functioning of the mind or brain - specifically due to the symptoms of his schizophrenia.
2. Dr WK reported that KNH does not understand or recognise that he has a mental illness or the need for treatment. Due to that lack of understanding he doesn't see that the treatment affords him any benefit. He does not make the connection between his illness and his actions. He is unable to appreciate any risks if he were to cease treatment. When he has contact with the treating team he is predominately focused on brokering the reduction or discontinuation of his medication.
3. KNH's weighing of information is influenced by his psychotic thinking patterns and his ongoing belief that he does not have a mental illness. Dr WK noted in her report that KNH additionally 'appears to have some illness related processing impairment which reduced this aspect of his capacity.'
4. KNH disagreed that he lacked decision making capacity and felt he could make his own decisions about his mental health treatment.
5. Based on the evidence presented, we were satisfied that the presumption of capacity had been rebutted by the applicant. We were satisfied that KNH is unable to make decisions about treatment due to a disturbance in the functioning of his mind due to the symptoms of his illness.
6. We were satisfied that due to KNH's mental illness, he is unable to understand and recognise the nature of his current symptoms or the risks associated with not receiving appropriate treatment. In particular, KNH did understand that without treatment there is a risk that his mental health with deteriorate, despite this occurring on a number of occasions previously.
7. Additionally, KNH did not appear to understand the reason for his involvement with justice system and the forensic mental health team. KNH seemingly attributed his interactions with the justice system as a result of being persecuted and bullied rather then as a result of him acting in response to his delusional beliefs. As a result, KNH did not appear to fully understand that risk of not receiving treatment for his mental illness.
8. Whilst KNH is certainly entitled to place his own weight and value on information when making a decision, he needs to first be able to understand the information before considering what value to attribute to it. As such understanding the relevant information is a necessary foundation for using or weighing the information. We were satisfied that KNH is unable to use or weigh the relevant information due to his psychotic thinking patterns and his ongoing belief that he does not have a mental illness. He is unable to consider the pros and cons of treatment if he does not understand the potential risks associated with non-treatment of his mental illness.
9. Accordingly, we are satisfied that KNH does not have decision making capacity and this criterion is satisfied.

1. As a result of the hearing, the Tribunal was satisfied that all of the treatment criteria set out in s 40 were met. Consequently, we were satisfied that we should exercise our discretion and affirm the treatment order.
2. The treatment order is affirmed.