Mental Health Act 2013; s 4, 6, 7, 12, 15, 40, 42, 47, 181 and 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;

BD (Failure to comply with Treatment Order) [2023] TASCAT 55.

The decision has been anonymised for the purpose of publication

1. ND (the patient) is a 43-year-old man who currently resides in [a Tasmanian town] together with his mother, JC.
2. ND has been an involuntary patient under a treatment order since 10 April 2018 and has been renewed on several occasions The orders have been reviewed. On 11 April 2024, a further treatment order was made by the Tribunal in respect of ND.
3. The Tribunal has most recently affirmed the treatment order on 8 October 2025 whilst conducting a 180-day review of the order as required by s 181(1)(a) of the Act. The affirmed order indicated that the treatment setting for ND was "community and was made in the following terms:

This Treatment Order: > > (A) is authority for the patient to be admitted to and if necessary detained in an approved facility for the purposes of receiving treatment. > > (B) authorises a combination of treatment settings and the admission or readmission of the patient to those settings, including treatment in the community; and > > (C) authorises the following treatment of the patient: > > 1. The patient is to take the following medication (depending on clinical indication): > > a. Antipsychotic medication > > b. Benzodiazepine 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. > > 2. Standard medical and/or blood, and/or urine tests and/or diagnostic radiological and medical imaging tests, as clinically indicated ad as directed by the treating team. > > 3. Adult Community Mental Health Service (ACMHS) appointments (inclusive of home visits as arranged when being treated in the community).

4. On the 27 October 2025, the Tribunal received a Form 22 as approved by the Chief Civil Psychiatrist, such form entitled "Failure to Comply with Treatment order" (the Act, ss 42, 47). The form was completed by Dr BF on 24 October 2025 (the Form 22) and indicated that she had determined that s 47 of the Act applied to ND and requested that ND be involuntarily admitted to an approved facility stating that:

He refused to take the depot injection at the suggested dose > > ... > > Demands to reduce medications without clinical indication > > ... > > Threatening to staff, using filthy words, violent, verbally > > ... > > Loosened associations disorganised speech and behaviour

5. Other documentation submitted with the Form 22 indicated that at the time Dr BF made the determination pursuant to s 47 of the Act, ND was already in the emergency department of an approved facility, having been taken there by a mental health officer who provided the following reasoning:

He attends the clinic but refused the increased medication dose. He says he would do investigations after losing weight. Threatened treating team and walked away. Disorganised speech and behaviour noted. Based on longitudinal picture he is deteriorating and at risk of full blown psychosis. > > Do not take oral med, no complying with investigations, refusing injection of haloperidol at prescribed dose. Above cannot be addressed in community set up.

6. On the date the Form 22 was received by the Tribunal, a single member of the Tribunal, on the papers, varied the terms of the treatment order insofar as the treatment setting was varied from "community" to "approved facility".

1. The Act provides that the Tribunal must conduct a review of a treatment order after receiving notification of matters arising in the Form 22 within 3 days of the days of the date of the notification.
2. The matter was originally listed before the Tribunal on the 30 October 2025, however, was adjourned following request from the patient's mother JC, to enable a member of the patient's service provider to attend. The matter was adjourned to the 24 November 2025, where the hearing took place.
3. We note that the hearing was not listed within the three day time period prescribed by s 181(d) but no issue was taken in this regard by any participant to the hearing.
4. All those who took part in the hearing participated by video link. Dr BF, treating psychiatrist participated from an approved facility. In the hearing room, BS team leader of ND's, service provider observed the proceedings.
5. The application and associated supporting documentation were all filed by ND's treating team.
6. JC was unable to attend the hearing but forwarded several emails (inclusive of the day of the hearing) to the Tribunal's registry which were included in the hearing papers. The email expressed a level of dissatisfaction with ND's treating team and his current medication regime.
7. The tenure of the material was that both ND and JC hold genuine concerns regarding the potential long-term health impacts of the current medication regime. It is apparent from the correspondence that they consider these concerns have not been adequately acknowledged or addressed by the treating team.
8. Further ND and his mother further dispute the assertion that the patient failed to comply with the treatment order and contest the factual basis of the non-compliance as described by the treating practitioner.
9. At the conclusion of the hearing before us on the 24 November 2025, we affirmed the treatment order.
10. On 2 December 2025, JC submitted a written request for a statement of reasons for our orders. These are our reasons.

1. The legislative pathway which requires the Tribunal to conduct a review of a treatment order in the current circumstances of ND is outlined in the Act, but is articulated in the decision BD (Failure to comply with Treatment Order) [2023] TASCAT 55.
2. The Tribunal outlined that the starting point is s 181, the relevant provisions of which provide:

181. Review of treatment order > > (1) The following provisions govern the review of a treatment order: > > ...... > > (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); > > .... > > (g) on review, the Tribunal may affirm, vary or discharge the order.

42. Effect of treatment order > > (1) A treatment order is authority for the patient to be given, without informed consent, the treatment, or type of treatment, specified in the order. > > (2) A treatment order is authority - > > (a) for the patient to be admitted to and, if necessary, detained in an approved facility, or type of approved facility, for the purposes of receiving treatment, if the terms of the order so specify; or > > (b) in any case, if section 47 or section 47A applies in relation to the patient, authority for the patient to be admitted to and, if necessary, detained in an approved facility (other than an SMHU) - > > until whichever of the following first occurs: > > (c) the order is varied so as to provide for a different treatment setting; > > (d) if the detention is authorised under the order, the order ceases to have effect under this Act. > > (3) If a patient is admitted to an approved facility under this section, the controlling authority of the approved facility is to notify the Tribunal and the CCP of the patient's admission.

4. Given that ND was readmitted to an approved facility utilising Form 22, the relevant provision that triggered the requirement upon the Tribunal to conduct the review, in accordance with s 42(b) is s 47:

47. Failure to comply with treatment order > > (1) This section applies if - > > (a) a patient is subject to a treatment order; and > > (b) reasonable steps have been taken to obtain the patient's compliance with the order; and > > (c) the treating medical practitioner is satisfied on reasonable grounds that - > > (i) despite those reasonable steps, the patient has failed to comply with the treatment order; and > > (ii) the failure in compliance has seriously harmed, or is likely to seriously harm - > > (A) the patient's health or safety; or > > (B) the safety of other persons; and > > (iii) the harm or likely harm cannot be adequately addressed except by way of an alternative treatment or treatment setting (being a treatment or treatment setting that is inconsistent with the treatment order). > > (2) If this section applies, the treating medical practitioner may, according to the circumstances - > > (a) apply to the Tribunal, under Division 2 of Part 3 of Chapter 3 , to vary the treatment order; or > > (b) seek to have the patient admitted to and, if necessary, detained in an approved facility under and in accordance with section 42; or > > (c) authorise urgent circumstances treatment under section 55 if the treating medical practitioner is an approved medical practitioner; or > > (d) seek authorisation to give urgent circumstances treatment under section 55 if the treating medical practitioner is not an approved medical practitioner.

"Failure to comply" and the role of the Tribunal

1. From the documentation provided by JC, there was apparent confusion around the role of the Tribunal in examining a "failure to comply". For the purposes of this hearing, the Tribunal adopted the approach in BD (Failure to comply with Treatment Order) (supra) where it outlined at [23] and [26]:

We understand that the usual approach of the Tribunal, and its predecessor, the former Mental Health Tribunal, in matters involving a "failure to comply" has been to determine if the provisions of s 47(1) were satisfied so as to allow admission and detention by a treating medical practitioner as permitted by s 47(2)(b). This approach is illustrated in the published decision of KX (Failure to Comply with Treatment Order) [2022] TASCAT 95 at [6]. If so satisfied, the Tribunal would then proceed to determine if the patient continues to satisfy the treatment criteria provided in s 40 of the Act. > > .... > > We are of the view that the ordinary meaning of the relevant words contained in s 181(1) and s 47 of the Act are clear and do not provide the Tribunal with authority to examine the circumstances by which a medical practitioner has determined to exercise the discretionary authority provided to them to have a patient admitted and detained in an approved facility. Notice of the exercise of such discretion by a medical practitioner to the Tribunal is simply a trigger which then requires the Tribunal to conduct a review of the treatment order. Such review involves the same test as when the Tribunal is requested to make a treatment order or renew an order. If the Tribunal concludes that the person does not meet the treatment criteria, then the order must be discharged. Alternatively, if the treatment criteria are met, then the Tribunal may proceed to exercise the discretion to affirm or vary the treatment order. (emphasis added)

2. There were no submissions as to an alternative approach to the legislation or authorities.
3. Accordingly, the Tribunal examined the evidence and submissions as to whether ND met the treatment criteria and whether we should exercise the discretion afforded to us to affirm, vary or discharge the current treatment order. We did not examine the circumstances which led to the failure to comply.

1. As outlined, the Tribunal must examine whether a person meets the treatment criteria under s 40 of the Act before proceeding to affirm, vary or discharge a treatment order when conducting a review pursuant to s 181(1)(d). 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-

(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 conducting such review, we need to be mindful of the objects of the Act provided for 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.

2. Finally, in exercising our responsibilities under the Act, we must consider 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 (whether as to culture, language, age, religion, gender or other factors); > > (e) to emphasise and value promotion, prevention and early detection and intervention; > > (f) to seek to bring about the best therapeutic outcomes 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, 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 choices; > > (k) to involve persons receiving services, and where appropriate their families 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; > > (q) to recognise and be responsive to national and international clinical, technical and human rights trends, developments and advances.

3. We now turn to our consideration of the evidence and submissions in relation to each of the treatment criteria.

1. Dr BF evidence was that ND has a mental illness, specifically schizophrenia, which was diagnosed when ND was in his 20's. ND has a history of resistance and has been trialled on various medications. ND has recently been experiencing paranoid thoughts, disorganised behaviour as well as auditory hallucinations.
2. The treatment plan for ND prepared by Dr BF for the purposes of the 180-day review was available to the Tribunal. As at the 3 October 2025, Dr BF outlined:

Resistant schizophrenia with prominent positive symptoms > > ... > > Auditory hallucinations > > Persecutory delusions > > Disorganised speech and behaviour > > Poor insight and capacity > > Mood dysregulation and impulse control difficulties.

1. The definition of mental illness in the Act is:

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.

2. We accepted the evidence of Dr BF that ND has a serious mental illness. This evidence was not contested. This criterion of the treatment criteria 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 pursuant to s 40(b)

1. The issue for the Tribunal is 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.

3. 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,

4. At the hearing, the doctor expressed the opinion that, in the absence of treatment, ND is likely to cause serious harm to his own health or safety, or to the safety of others. In forming this view, the doctor relied upon ND's medical history and observed behaviour, including his interactions with medical staff in October 2025. The doctor also referred to an incident in 2020 in which ND cut his throat with a knife, as well as medical records documenting occasions where ND attempted to assault, or did assault, hospital staff. The doctor further stated that, if treatment were not optimised, ND would remain at risk of harm to himself.
5. We accepted the evidence of Dr BF that without treatment ND's mental illness is likely to result in serious harm to ND's health and safety.

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 make a treatment order, we 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.

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. We inquired of Dr BF his views as to why the treatment remains appropriate and effective for ND, given the concerns raised by JC.
4. Dr BF acknowledged that ND strongly disagrees with his current medication regimen. He stated that alternative medications had previously been trialled; however, ND experienced adverse effects, including possible weight gain and other metabolic side effects. The doctor advised that the current medication regimen has produced a good therapeutic response and, for that reason, has been maintained.
5. In the 180-day review plan, Dr BF noted that ND had ceased taking oral medication. He further observed that, while ND continues to receive depot medication, he does so reluctantly and consistently resists this form of treatment. The Tribunal notes that the current medication regimen has prevented hospitalisation over the preceding 12 months.
6. It was clear that ND, and his mother held concerns for the ramifications of the current medications upon his long-term health and felt that their concerns were not being taken into account by ND's treating team.
7. We accept the evidence of Dr BF that the treatment is appropriate and effective. Other alternative medications have been attempted to no success, and ND has been living within the community for the past 12 months. The criterion is satisfied.

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

1. The consistent and clear evidence, throughout the documentation and at hearing, is that ND is resistant to receiving treatment. He ceased the recommended oral treatment and receives the depot medication begrudgingly.
2. ND was agitated and resistant to the dosage in October 2025.
3. The evidence of Dr BF was given ND's history and his current presentation, without a treatment order being in place, the necessary medications would not be administered and ND would be at significant risk of relapse of his condition. We are satisfied this criterion is made out.

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. At hearing, Dr BF addressed this criteria based on ND's capacity assessment during his most recent clinical review of the patient in late October 2025. Dr BF gave evidence that, when treatment changes were discussed, including a proposal to increase medication, the patient responded by stating words to the effect of "you are not on my side" and asking whether the doctor was "going to kill" him. Dr BF explained that these responses were indicative of paranoia and persecutory thinking, with the patient perceiving the treating team as acting against him.
3. Dr BF further stated that ND believed the purpose of the injection was related to his life being "not in order," rather than understanding that the medication was prescribed to control psychotic symptoms and maintain his mental wellbeing. ND rejected this explanation and denied the need for treatment, maintaining that the Dr BF intended to harm him.
4. When the possibility of increasing medication was raised, ND insisted that he had previously been "well on 75 milligrams" and sought a reduction in dosage. Dr BF explained that this demonstrated an inability to appreciate that mental state and symptom severity can change over time and that a previously effective dosage may no longer be therapeutically sufficient. In Dr BF's opinion, ND was therefore unable to understand, or to use and weigh, the relevant information relevant to his treatment.
5. The Tribunal also relied on Dr BF report contained within the 180-day review, which records that the patient has a long-standing diagnosis of treatment-resistant schizophrenia. The report states that the patient's decision-making capacity is significantly impaired by ongoing active psychotic symptoms, including disorganisation, auditory hallucinations, and persecutory delusions.
6. The Tribunal is satisfied that ND does not have decision-making capacity in relation to his treatment. The Tribunal finds that ND is unable to understand the information relevant to the decision and is unable to use or weigh that information as part of the decision-making process.
7. Accordingly, we affirmed the treatment order and made no variations.

1. The Tribunal affirms the treatment order made on 11 April 2024**.**