Mental Health Act 2013 (Tas); ss 4, 6, 7, 12, 37, 39, 40, Schedule 1

B v Mental Health Tribunal [2020] TASSC 10;

CMB v Mental Health Tribunal [2021] TASFC 4

The decision has been anonymised for the purpose of publication.

1. KV (the patient) is a 65-year-old woman residing in Tasmania. She receives a disability support pension and has adult children who reside overseas.
2. On 31 January 2025 KV was detained for assessment by a mental health officer due to that officer believing that KV had a mental illness, namely a delusional disorder, that she should be assessed against the assessment criteria under the Mental Health Act 2013 (the Act) and her safety or that of other people were at risk if not detained. It was reported KV had allegedly "attacked a person" on 22 January 2025 which police were investigating; she was refusing medication and admission to hospital, and there were allegations she had a knife. On 31 January 2025 KV was admitted to an approved hospital, at which time an assessment order was made, together with authorisation of urgent circumstances treatment. On 31 January 2025 the assessment order was affirmed and extended until 3 February 2025.
3. On 3 February 2025, the Tribunal received an application for treatment order from Dr HN (the applicant) requesting the Tribunal make a treatment order under s 37 of the Act for KV (application). In her application, Dr HN also requested an interim treatment order stating that a delay in making an order would be likely to significantly harm KV's health and safety or the safety of other persons. On the date of receipt of the application, Member Jones made an interim treatment order, on the papers, in the terms of the application and effective until 13 February 2025. Member Jones also made an order for KV to be separately represented by a legal practitioner in relation to the application.
4. On 4 February 2025 Mr Braydon Broad (Mr Broad) of Tasmania Legal Aid filed a general notice of appearance with the Tribunal advising that he represented KV as a direct representative. Consequently, the order for KV to be separately represented was vacated.
5. On 7 February 2025 the application for treatment order was heard before a three-member panel of the Tribunal. KV attended the hearing with Mr Broad. The Tribunal made a treatment order for a period of 6 months.
6. A statement of reasons has been requested. These are our reasons.

1. In the application, Dr HN details that in January 2024 KV moved to Tasmania from interstate, having previously lived overseas. She had lived in multiple accommodations and immediately prior to admission KV was living in temporary accommodation for people over 55 years. Prior to moving to Tasmania KV reported consulting with a private psychiatrist and claimed she had diagnoses of Post Trauma Stress Disorder (PTSD) and Major Depressive Disorder.
2. In November 2024 KV first had contact with community mental health services during which time she was diagnosed with delusional disorder. In the community she had

...exhibited psychotic, symptoms - tangential and circumstantial thought disorder, persecutory delusional beliefs about her accommodation and her neighbours. She also believed that she was being poisoned with heavy metals by her dental team and concerned about being exposed to methamphetamine.

3. On 31 January 2025 KV was brought into hospital by police due to reports of decline in her mental state, and reports from her accommodation manager that she had allegedly assaulted two people. She was admitted to hospital for assessment and treatment.

1. In respect to the current admission, Dr HN particularises:

During assessment, she reported experiencing severe bullying, harassment and violent behaviour from her neighbours in her current accommodation. She reported false accusations against her such as peeping into homes and scaring children and interprets these as part of larger conspiracy against her. She believes there are illegal activities, such as drug dealing, occurring in her area and suspects coded emails related to these activities. She also reported a past incident where her house was contaminated with crystal methamphetamine and believes that housing agency is involved in illegal activities and trying to force her out. > > She claims her neighbours target her because of jealousy over her appearance and behaviour. She is particularly concerned about her safety, keeping a knife for self defence but denies carrying weapons in public or physically attacking anyone. However, she admitted to making threats of physical violence towards a neighbour. She reported ongoing bullying by a woman ... and recent confrontations with others, including being slapped and pushed. She does not believe she had a mental illness and needs to be treated for her mental illness. She believes she has been misdiagnosed and refused to take medications. > > [KV] has a diagnosis of Persistent Delusional Disorder. Her current symptoms are characterised by psychotic symptoms remains agitated. She presents with thought disorder - tangential and circumstantial. She's preoccupied with persecutory delusions that her neighbours are bullying and harassing her. She also believes drug dealing and Mafia activities in her area and interpreting innocent events (young girls delivering pizza) as having coded meaning related to sex and poison. She fears that people are targeting her due to jealousy. She expressed concerns for her safety and has reported to keeping a knife for self defence. She has made threats of physical violence towards a neighbour and reported being physically assaulted by others. Despite being presented with symptoms of delusional disorder she denied she had any mental illness and refused to take medication and get treatment. Her judgement and insight remain impaired.

1. The hearing was conducted by video-link. Attending from the approved hospital was KV and her legal representative Mr Broad, together with members of the treating team made up of the applicant Dr HN, a registered nurse DE, and a university medical student IH. KV consented to the student attending the hearing.

1. At the hearing the Tribunal had the benefit of the application and associated supporting documentation filed by the applicant and KV's treating team. Mr Broad advised that he had reviewed the documentation and taken instructions from KV on their content. No documentary evidence, including alternate medical evidence or written submissions were filed by KV.

1. Mr Broad stated KV opposed the application, initially indicating a particular dispute regarding criterion s 40(e) of the Act and then indicating all criteria were disputed.

The Tribunal's authority to make a treatment order is set out in s 39 of the Act. That section provides:

39. Determination of application for treatment order > > (1) The Tribunal may make a treatment order in respect of a person if, and only if, it is satisfied that - > > (a) an approved medical practitioner has applied for a treatment order in respect of the person; and > > (b) the requirements of section 37 have been met in respect of the application; and > > (c) the person meets the treatment criteria; and > > (d) a treatment plan has been prepared for the person; and > > (e) the requirements of section 53(2) appear to have been met with respect to the treatment plan.

Section 39(1)(b) requires that the requirements under s 37 must have been met by the application before the Tribunal can be satisfied that a treatment order should be made. Section 37 provides:

37. Application for treatment order > > (1) Any approved medical practitioner may apply to the Tribunal for a treatment order in respect of a person. > > (2) The application may be made whether or not the person is subject to an assessment order. > > (3) If the person is subject to an assessment order, the application should only be made if - > > (a) the applicant has assessed the person under the authority of the assessment order; and > > (b) the applicant is satisfied from the assessment that the person meets the treatment criteria. > > Note The treatment criteria are set out in section 40. > > (4) If the person is not subject to an assessment order, the application should only be made if - > > (a) the person has been assessed by the applicant and one other approved medical practitioner, separately, within the preceding 7 days; and > > (b) the applicant and the other approved medical practitioner are both satisfied from their respective assessments that the person meets the treatment criteria. > > (5) The application in relation to a person is to be in accordance with section 195 and be accompanied by - > > (a) a statement by the applicant affirming that (and explaining how) the person meets the treatment criteria; and > > (b) . . . . . . . . > > (c) an indication as to whether an interim treatment order is needed; and > > (d) if the person is subject to an assessment order, a copy of that order. > > (6) The applicant is to - > > (a) give a copy of the application to the person (together with a statement of rights in a form approved by the President of the Tribunal); and > > (b) place a copy of the application (and accompanying documentation) on the person's clinical record (ensuring that such a clinical record is created if one does not already exist).

Accordingly, we need to be satisfied that the person that is subject to an application meets the treatment criteria provided under s 40:

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.

Additionally, in deciding whether to exercise jurisdiction to issue a treatment order under s 39, we must consider the objectives outlined in s 12 of the Act:

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.

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. Schedule 1 provides:

Schedule 1 - Mental health service delivery principles > > (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 including, but not limited to - > > (i) needs relating to culture, language, age, religion, gender, gender identity, sexual preference, sexuality or other personal factors; and > > (ii) in relation to patients who are Aboriginal persons or Torres Strait Islanders, that there is a recognition of and response to their distinct cultural and identity needs; and > > (iii) needs that require recognition of and response to relevant cultural and identity needs generally; and > > (iv) needs related to trauma-informed care; > > (e) to emphasise and value promotion, prevention and early detection and intervention; > > (f) to seek to bring about the best therapeutic outcomes, including the use of evidence-based care, 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, carers, children 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 decisions including decisions about the person's assessment, treatment and recovery that involve a degree of risk; > > (k) to involve persons receiving services, and where appropriate their families, carers, children 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 and to have robust clinical governance and quality and safety processes; > > (q) to recognise and be responsive to national and international clinical, technical and human rights trends, developments and advances and meet the requirements for national accreditation; > > (r) to ensure that persons receiving mental health services have their medical and other health needs, including any alcohol and other addiction problems, recognised and responded to; > > (s) to ensure that the best interests of children and young persons are recognised and promoted as a primary consideration, including receiving services separately from adults, whenever possible; > > (t) to ensure that the needs, wellbeing and safety of children, and other dependants, of persons receiving mental health services are recognised and protected; > > (u) to ensure that staff working in mental health services have access to the support, supervision and appropriate training, including cultural diversity training, required to maintain quality, safety and a highly skilled workforce; > > (v) to provide a mental health service that - > > (i) is easily accessible, and safe; and > > (ii) provides persons with mental illness with timely treatment, care and support that is high quality and based on contemporary best-practice principles; and > > (iii) promotes recovery in the least restrictive manner that is consistent with the needs of persons with mental illness; > > (w) to ensure that people who require mental health care and treatment have timely referrals, and access to specialist mental health services, when appropriate.

1. Turning specifically to the treatment criteria of which we must be satisfied, before we can make a treatment order in respect of KV:

The person has a mental illness pursuant to s 40(a)

1. Section 4 of the Act defines mental illness as:

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. In the application and at the hearing, Dr HN stated that KV has a mental illness with a diagnosis of persistent delusional disorder. Dr HN stated KV's mental illness is characterised by psychotic symptoms. The symptoms include: thought disorder with tangential thoughts (providing over inclusive content) and circumstantial thoughts ('going off the topic'). Persecutory delusions that she is being bullied and harassed by her neighbours and accommodation provider. She fears she is being targeted, and those people are jealous of her. She believes that her neighbours and the occupants of the accommodation she lives at are drug dealing, and there are 'Mafia activities' in her area. She is interpreting innocent events as having coded meaning for example young girls delivering pizzas related to 'sex and poison'. She expressed fears for her safety, and it was alleged she kept a knife for self-defence. She had made threats of physical violence towards neighbours and reportedly physically assaulted others. She is agitated and has underlying irritability when the treating team attempt to explain the nature of the mental illness. She is preoccupied with her delusional beliefs and asserts they are real events. She denies the presence of mental illness, refused treatment and medication. Dr HN stated that KV's judgment and insight are impaired.

1. Dr HN stated that as part of their assessment, collateral evidence had been obtained from other sources including from community mental health services, KV's housing provider, and KV's former GP from interstate. The GP stated KV had ongoing paranoia regarding her housing infecting her with methamphetamines.

1. At hearing HN stated that the community treating team notes indicated that KV had a knife for self-defence. KV denied having a knife. Dr HN stated that collateral evidence indicated that neighbours had been confronted by KV not with a knife but rather a basket, gardening instruments and stakes.

1. At the hearing Dr HN stated that KV's presentation was consistent with the description of persistent delusional disorder as outlined in the Diagnostic and Statistical Manual of Mental Disorders 5th edition (DSM-5). Dr HN stated persistent delusional disorder is difficult to treat, often has late onset, often occurs in females and the delusional beliefs are to be persistent for at least 3 months. Upon questioning from Mr Broad Dr HN confirmed the treating team had considered KV's scepticism regarding modern medicine and Dr HN remained firm in her view that KV has a mental illness with a diagnosis of persistent delusional disorder with the symptoms identified in the application consistent with DSM-5.

1. At the hearing Tribunal member and psychiatrist Dr Kronstorfer asked KV questions regarding her nursing background and views about alternative medicines and treatment. Of note was the following evidence:

KV ... from a clinical practice I was able to think more how can we prevent the cause rather than treat the cause, so address the cause rather than treat the cause, I don't know if I addressed the question. > > Dr Kronstorfer No, I understand. So when you say alternative medicines and treatments what do you mean with that? > > KV diet, diet's really really important, and being educated in terms of lifestyle choices, and there are herbal remedies one can also use and things like meditation, sunshine. > > Dr Kronstorfer And in regard to your own situation, you feel you need any treatment, alternative or not? > > KV I don't feel I need any treatment at all, I have got a lot of resources that I can draw on to maintain mental health > > Dr Kronstorfer OK, sounds like you have moved a fair bit around and been in places with similar problems, is that a fair call, as it was described? > > KV I shared with Dr [HN] my personal history, excuse me... that I wrote for an application for a spiritual retreat otherwise she wouldn't have gotten that information, and um, can you just recap the question please? > > Dr Kronstorfer So you have moved around a fair bit, what was the reasons, the problems with different accommodations, it was mentioned you had similar problems to the ones you currently have, is that correct? > > KV I'm sorry to interrupt, that wasn't your question. It was an important question, but anyway, if you would like me to answer the question on whether I had different problems. I am going to take it off to a different tangent at first. I have had from my earliest days a lot of moves, a lot of loss, a lot of abandonment, a lot of grief over the years, and I came back to Australia in 2012, went back to [overseas] in 2000 ...and, came back in 2010, went back in 2012 stayed 2 years and came back because I have children there who I have been estranged from due to domestic violence and I went into a stimulus housing program in Australia, coming from there, I stayed around with my children for as long as I could, but when you're super super grief stricken that you can see no other way to not be suicidal, I did think about where would I lie in the snow if I were to do this, and I have a very strong belief in God and I knew I wouldn't do that and I came home to, I say home, home to Australia, there's sunshine, there's support things I can go to the [location] health food store and get the things I need to would make me feel better and through the sunshine alone, and the sense that you are in your home environment you do feel better, even if you are in profound grief. Now, I did that spiritual retreat but I also showed the application to Dr [HN] for the criteria for doing the retreat and that was to, that was Catholic and that was 30 days in silence, that was, I know in the silence all of the trauma in the body has an opportunity of coming out of the body , and it was a Catholic retreat my food was given to me all the time, all I had to do was be silent and do the exercises that were required, and I didn't break the silence like the novice priest did, because I know how hard it is to get back into the silence and then when I came home I put a note on my door, after having been in this beautiful space of silence that I would do some music therapy, my own initiated music therapy, and I was listening to the [redacted] and music things the young people do, and my husband was a fine musician he was in the [redacted] and the music ...

2. At the hearing KV advised us that she does not accept she was having psychotic symptoms and does not agree that she is mentally unwell.

1. Mr Broad stated that his client disputed the diagnosis. He submitted that KV does not consider that she has a mental illness within the meaning of s 4 of the Act. He also stated KV had "long been sceptical of modern medicine" citing her declining to have the vaccination for Covid 19.
2. Applying the definition of mental illness in the Act and despite the views expressed by KV and submissions from Mr Broad, the Tribunal preferred the expert evidence of Dr HN that KV has a mental illness, namely, a diagnosis of persistent delusional disorder as outlined at paragraphs [10, 21 and 24] above. Accordingly, we find that KV has a mental illness and this criterion is met.

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

1. In the Supreme Court decision of S v Mental Health Tribunal [2016] TASSC 34, the Honourable Chief Justice Blow CJ (as he then was) interpreted this criterion. He stated 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.

2. Furthermore in B v Mental Health Tribunal [2020] TASSC 10, His Honour provided further comments on the criteria 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.

3. In the application and at the hearing Dr HN expressed her opinion that without treatment KV's mental illness would be likely to seriously harm her health and safety or the safety of others. Dr HN's evidence indicated that without treatment KV is at serious risk of deterioration in her mental state, with her disorganised thinking, and psychotic symptoms. Furthermore, her ongoing emotional distress increasing the risk of impulsive behaviour, and aggressive behaviour associated with her ongoing paranoid and persecutory delusions. Noting that prior to admission KV was highly suspicious of her neighbours, was monitoring them and taking photographs of neighbours, their visitors and children. She is at risk of misadventure. KV was not currently expressing suicidal ideation however KV had a history of suicidal ideation and if the distress from her persecutory delusions and erratic behaviour continues there is serious risk of suicide.
4. Dr HN stated KV has consistently refused to take medication and engage with mental health services demonstrating poor insight and judgment into her mental illness which contributes to the risk of non-compliance to the treatment and limits KV's ability to manage her condition without intervention.
5. KV's evidence was that according to advice from police she was permitted to "defend herself". She had undertaken a self-defence course overseas due to issues. She had been assaulted by a person "8 times". She had "stuck up for herself" and only verbally made comments, not threats to the person who was bullying her.
6. Mr Broad submitted that KV does not consider that she has a mental illness within the meaning of s 4 of the Act and it follows from that there is no risk of harm associated with no treatment as there is no underlying condition requiring treatment. No submissions were made regarding the particular factual circumstances that had occurred leading up to admission as outlined in the evidence in the application and Dr HN.
7. The Tribunal are satisfied on the evidence presented that without treatment of KV's mental illness there is serious risk of deterioration in KV's mental state, posing a serious risk to the health and safety of KV and others. Her psychotic symptoms, her disorganised thinking, and her paranoid and persecutory delusions present serious risks of harm to KV and others as outlined in the factual circumstances by Dr HN. KV's evidence at hearing demonstrated her profound lack of understanding of her mental illness and the serious risks associated without treatment of her mental illness. The Tribunal preferred the evidence of Dr HN regarding the nature and severity of the risks to KV and others. The Tribunal considers the deterioration of a person's mental health to amount to serious harm. It is these factors which enable us to be satisfied that without treatment KV's health and safety and the safety of others may be seriously harmed. Accordingly, we find criterion s 40(b) is met.

The treatment will be appropriate and effective in terms of the outcomes referred to in s 6(1) pursuant to s 40(c)

1. The Tribunal must be satisfied that the outcome of the proposed treatment for KV is appropriate and effective as referred to in s 6(1) of the Act. That section provides:

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) assess a person's mental state.

2. The treatment is to be given to KV as an inpatient in an approved facility and upon discharge in treatment in the community. The application details the treatment proposed. The proposed use of medications including antipsychotics, antidepressant, benzodiazepine, and anticholinergic. At the date of hearing Dr HN stated KV was unwilling to take medications and was only taking them "forcibly" as an involuntary patient. She was administered antipsychotic medications and during the current admission two types of antipsychotic medications had been administered. The treating team also propose psychological support, and physical investigations to monitor treatment and mental state. The proposed treatment is evidence-based treatment and it is anticipated there will be a reduction in KV's psychotic symptoms, mitigation of the risks and improvement in her symptoms and psychosocial function.
3. At hearing Dr HN stated that during her admission KV's agitation and irritability had "calmed" however her psychotic symptoms of delusional beliefs and thought disorder remained. Mr Broad stated that he was instructed KV had not taken any medication during the first three days of admission and that any settling or improvement by KV could be attributed to her being transferred to a lower care part of the inpatient unit. Dr HN stated that the medication chart indicated that antipsychotic medication had been administered to KV and that it was possible that the transfer in treatment setting may have assisted with KV's agitation.
4. Mr Broad submitted that the medication being administered and anticipated in the future "is not possible to be" appropriate and effective because KV refutes there is an underlying mental health condition.
5. The Tribunal accepted the expert evidence of Dr HN and was satisfied that the treatment proposed in the application is appropriate and effective treatment for KV's mental illness as defined in the Act and in accordance with evidence-based treatment for the nature and symptoms of KV's mental illness. Accordingly we find criterion s 40(c) is met.

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

1. In her application Dr HN stated that treatment could not be adequately given except under a treatment order because KV was not engaging with the treating team, she refused medications, she had no insight into her symptoms of persistent delusional disorder (mental illness), she required constant supervision, she did not have decision making capacity and she did not understand the impact of her mental illness on her daily life.

1. The Tribunal accepted the evidence of Dr HN that the treatment cannot be adequately given except under a treatment order. We note the evidence of KV that she would not accept treatment voluntarily. The Tribunal placed weight on the evidence of KV, that she did not believe she had a mental illness nor that it required treatment. The Tribunal accepted the evidence of Dr HN and was satisfied in the absence of a treatment order, KV would not be compliant with treatment of her mental illness. The Tribunal was satisfied that treatment cannot be adequately given to KV except under a treatment order. Further, the Tribunal was satisfied that KV does not have decision making capacity (see below) and therefore cannot voluntarily consent to treatment. Accordingly, we are satisfied s 40(d) treatment criterion is met.

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

1. 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).

2. Dr HN advised in her application that KV does not have decision making capacity because of an impairment of or disturbance in the function of the mind or brain. Dr HN stated that KV has a diagnosis of persistent delusional disorder and KV is experiencing psychotic symptoms arising from her disorder, those symptoms include agitation, thought disorder (tangential and circumstantial), persecutory delusions regarding her neighbours and housing provider (believing they are conspiring against her and undertaking illegal activities harassing her and trying to force her out). KV has no insight into her symptoms of mental illness in that she denies the presence of a psychiatric condition or need for treatment. KV does not understand the impact of her psychiatric symptoms on her daily life.

1. Dr HN states that KV is unable to understand information relevant to the decision of assessment and treatment as she does not understand her current mental illness and denies its presence. KV does not believe she has a mental illness, nor that she needs to be in hospital, nor that she needs treatment despite explanation from health professionals. She does not understand the risks associated with her refusal to take medication. She does not accept her persecutory delusions are false beliefs.

1. Dr HN stated in her application KV is unable to use or weigh information relevant to the decision due to the impact of her psychotic symptoms including thought disorder, delusion of persecution, impaired judgement and lack of insight. Her ability to engage in rational decision making is compromised by her psychotic symptoms. Her inability to differentiate between reality and what her delusion is, significantly impairs her capacity to use or weigh information relevant to decision making.

1. At hearing Mr Broad asked Dr HN whether it was "hard" to assess KV's decision making ability because of her long held views of being sceptical of modern medicine. Mr Broad stated that the treatment decision not to have medication was not being made because of a mental illness, rather it was because of her a long standing belief of scepticism in modern medicine. Dr HN disagreed with the proposition put by Mr Broad given the statements by KV presenting to hospital, collateral evidence (outlined above), and expert opinion of the treating team. Dr JV accepted KV may have had that "premorbid personality" and may not be keen on modern medication but now she had fixated delusions, thought disorder, was not engaging with the treating team, has risks to herself and others, and as duty of care the treating team have to initiate treatment.

1. At the hearing Mr Broad asked KV to explain what role her pre-existing beliefs about medication and modern medicine played in her decision making. In response KV stated

I'm really opposed to taking the first medication, which I didn't take on the first ward, and the second medication which I do take now, because I think that the side effects that do harm are worse than the benefit I would gain. I have been, I would say calmed due to being here aside of the normal stressors that everybody has when you are in a new ward, you have got to do this and you have got to come to psychiatric interviews and then you've got nurses wanting you for this and the other, so my stress levels have been very high, I am centred, most of the time, and polite and friendly, and I don't think the medication is actually benefiting me anyway, so I was calm before I came down here.

2. Mr Broad submitted that the "core part" of the dispute is based in the definition in s 7(1)(a) of adults making decisions about their own assessment and treatment referring to KV being unable "to make the decision because of an impairment of or disturbance in the function of the mind or brain". Mr Broad placed emphasis on the words "because of". He submitted it was "very difficult" for a treating team "to ascertain the rationale behind" [KV's] decision making and "because of that it is difficult to assess capacity", whether KV can understand, or use, or weigh information. Mr Broad further submitted KV's view is that modern medicine generally brings about "poorer outcomes for people than alternative medicines" and "that is the basis upon" which KV "is making her decision to not have mental health treatment". Even if the "doctors were correct" about the diagnosis she would still have "considerable doubt about taking the medication" just as she refused the Covid vaccine for similar sceptical reasons. Were she to attract serious physical conditions "her default would be to not seek medical treatment and attempt to resolve them using alternative medicine". Mr Broad submitted the treating team have "not made clear the supposed cause of impairment" when there are "two plausible causes". In conclusion he submitted the presumption had not been rebutted on the evidence and invited the Tribunal to dismiss the application.
3. The Tribunal preferred and accepted the expert evidence of Dr HN in relation to decision making capacity. We are satisfied that due to KV's thought disorder and delusional beliefs 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 a mental illness, even when provided with information to the contrary due to her thought disorder and strongly held delusional beliefs. KV's thought disorder and delusional beliefs prevented her from being able to understand the risks and benefits of treatment. She was unable to comprehend that medication might provide her with any benefits and wanted to rely upon her own resources or alternative therapies. We were also satisfied that KV was unable to use or weigh the information as understanding the relevant information is a necessary foundation for using or weighing information.
4. Accordingly, we are satisfied that KV does not have decision-making capacity within the meaning of the Act and s 40(e) criterion is satisfied.

1. We were satisfied on the evidence before us at hearing that KV meets the treatment criteria under s 40 of the Act. Consequently, we made a treatment order in respect of KV on 7 February 2025 which remains in place until 6 August 2025.