Mental Health Act 2013 (Tas); ss 4, 6, 7, 12, 37, 39, 40, Schedule 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. DKM (the patient) is a 28-year-old woman residing in Tasmania.
2. DKM was placed under the authority of an assessment order on 7 April 2025 at 3:30pm and detained and admitted to an approved hospital so that she could be assessed against the assessment criteria under the Mental Health Act 2013 (the Act). At the time the assessment order was made by Dr CT, an authorisation of urgent circumstances treatment was also made. The assessment order was affirmed by Dr NC on 8 April 2025 at 11:00am and extended until 11 April 2025 at 11:00am.
3. On 10 April 2025, the Tribunal received an application for treatment order from Dr NC (the applicant) requesting the Tribunal make a treatment order under s 37 of the Act for DKM (application). In her application, Dr NC also requested an interim treatment order stating that treatment has been and remains urgent for the safety of DKM and others. Dr NC stated that without the provision of timely and appropriate treatment, DKM's mental state is likely to deteriorate further posing a risk to her and others.
4. On the date of receipt of the application, Senior Member Chaperon made an interim treatment order, on the papers, in the terms of the application and effective until 20 April 2025.
5. On 17 April 2025 the application for treatment order was heard before a three-member panel of the Tribunal. DKM did not attend the hearing. The Tribunal made a treatment order for a period of six months.
6. On 24 April 2025 the Tribunal received a request from DKM for a statement of reasons outlining our determination. These are our reasons.

1. In the application, Dr NC states that DKM has previously been diagnosed with borderline personality disorder, body dysmorphia, binge-eating disorder, anxiety and depression. Dr NC opined that collateral information received suggested that DKM may also have a diagnosis of bipolar affective disorder made in Victoria but that this diagnosis had not been confirmed with the treating psychiatrist where DKM had been treated.
2. Dr NC outlined that DKM had experienced a decline in her mental state from December 2024 and collateral from a family member was that a precipitating factor for this decline had been a refusal from a family member to pay a significant amount of money for university studies and that DKM had become upset, increasingly aggressive and verbally and physically abusive.
3. In respect to the current admission, Dr NC particularises:

Father contacted CATT due to concerns regarding her mental state and behaviour. When CATT arrived to the house, [DKM] was in the street and expressed some delusions about waiting for the Victorian Police to come and pick her up in a ute to take her back to Victoria. In additions to this, she expressed some delusions that her parents are not her real parents and are paranoid about her.

4. The Crisis Assessment and Treatment Team (CATT) conveyed DKM to the emergency department for assessment.
5. Dr NC reported in the application that DKM was likely experiencing:

first episode psychosis, emerging in the context of poor adherence to medications, compounded by underlying personality vulnerabilities. [DKM] has exhibited grandiose delusions, believes that "her case is of public knowledge" and Victorian police are coming to take her back to Victoria. Delusions about her parents not being her real parents and disorganized thinking (flight of ideas, loose associations at times). In terms of her affect, fatuous laugh and smile, inappropriate to topics discussed, labile, irritable, angry and incongruent with mood. Observed smiling fictitiously [sic] and verbally responding to internal stimuli at times when she thinks no one is watching. > > While on the ward, after parents visited her, she expressed homicidal ideation towards her father and has been laughing at people dying in war.

1. The hearing was conducted by video-link. Attending from the approved hospital was the applicant Dr NC, the resident medical officer Dr KL and registered nurse IP. The patient's parents JM and M attended the hearing by phone. DKM did not attend the hearing. Nurse IP told the Tribunal DKM was very irritable prior to the commencement of the hearing. NP asked DKM if she would like to come to the hearing. He said DKM told him to keep a distance away from her and not come near her and to not interfere in her life.
2. At the hearing the Tribunal had the benefit of the application and associated supporting documentation filed by the applicant. No documentary evidence, including alternate medical evidence or written submissions were filed by DKM.

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 DKM:

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 NC states that DKM is single and has been living with her parents until six days prior to this admission when DKM decided to leave home and live on the street opposite her parents' house stating that she did not feel safe staying at home.
3. JM, DKM's father, told the Tribunal that DKM had been:

stalking me, yelling at me, talking aloud and talking to herself. It was day in and day out. There wasn't one day that this didn't happen. Then after, she may do that for an hour, she would say I love you Dad.... Towards the end before I took out the restraining order... she would step in the doorway, I'd go to go through and she would stand there and refuse to let me through. I would ask her to move out of the way, then she would shoulder me out of the way.

4. JM told the Tribunal that prior to coming into hospital, DKM woke up and told him that she had experienced a bad dream that they had all killed themselves. JM said he felt that this "was out of place" and called the CATT and they attended the house.
5. Dr NC reports that when the CATT arrived at DKM's parents' house, DKM was sitting opposite the house with all her bags stating she had heard on the radio that the Victorian police were coming to pick her up and take her back to Victoria.
6. Dr NC reports DKM presents with an acute psychotic episode and was initially guarded when assessed in the emergency department. Dr NC did not know if illicit substances were involved as DKM had refused to provide a urine sample for testing. Dr NC said that DKM had told the treating team she was living on the street because she feels unsafe in her parents' house. Dr NC told the Tribunal that DKM has said her parents had been economically abusive towards her and that is why she tried to leave. Dr NC said that on questioning of DKM she became quite irritable towards the treating team.
7. Dr NC also stated that DKM had expressed ideas that her father, JM, was not her real father. DKM had also expressed homicidal ideation towards her father. Dr NC told the Tribunal JM had taken out a Family Violence Order against her.
8. Dr NC said that collateral from JM was that DKM had been experiencing a deterioration in mental state for the past seven-eight months but had deteriorated further since December 2024 following his refusal to provide a significant amount of money to her for university studies.
9. Dr NC told the Tribunal that DKM had become increasingly aggressive towards her father, pushing him, yelling at him and singing loudly in his face. Dr NC also said that collateral from JM was that DKM has been talking to herself and laughing alone. Dr NC said that on the ward DKM has been seen to be responding to unseen stimuli and is experiencing thought disorder mainly in the form of flight of ideas with loose associations at times. Dr NC said it had been very difficult to understand what DKM was trying to say.
10. Dr NC reports DKM is experiencing ongoing delusions about her parents. JM told the Tribunal that when he and his wife (mother of DKM) visited DKM on the psychiatric unit, DKM did not recognise her mother.
11. The Tribunal noted that DKM had been detained and treated under the authority of assessment orders in July 2022 and February 2025 and asked Dr NC if DKM's presentation on this admission was similar to the presentations to hospital previously. Dr NC said the symptoms on presentation were similar.
12. Applying the definition of mental illness in the Act the Tribunal is satisfied on the evidence of Dr NC that DKM has a mental illness. On the evidence DKM has an ongoing psychotic illness and is experiencing a serious impairment of thought (delusions) and a serious impairment of mood (perception). Accordingly, we find criterion s 40(a) 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. Dr NC told the Tribunal that collateral from JM was that DKM was taking medications in the community three years ago but self-ceased these medications which has led her to become acutely unwell. Medications were recommenced but two years ago DKM again self-ceased these medications. Medications had not been recommenced since then.
4. It was Dr NC's opinion that without treatment there was a risk of further deterioration in DKM's mental state and this deterioration further exacerbates serious risks of harm to DKM. As a consequence of her mental illness DKM had placed herself at risk when she moved out of the family home and was living on the street secondary to her delusional thought content. Dr NC was also concerned about potential risks to DKM's father due to DKM's homicidal ideation and increased aggression towards him.
5. The Tribunal is satisfied on the evidence presented that without treatment of DKM's mental illness there is serious risk of deterioration in her mental state, posing a serious risk to her health and safety and the safety of others. Based on the evidence before us, we are satisfied that DKM's mental state has deteriorated whilst she was living in the community and because of this deterioration, she was experiencing distressing psychotic symptoms and has acted on delusions placing herself and others at risk. 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 DKM 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. At hearing Dr NC stated that DKM as an inpatient on the psychiatric unit is being treated with Olanzapine 5 mg in the morning and 10 mg at night. DKM is also prescribed PRN benzodiazepine and antipsychotic medications. Dr NC said that on a couple of occasions DKM had refused the administration of the medication.
3. Dr NC told the Tribunal that the prescribed medication was the appropriate medication for the treatment of acute psychosis and stated that the treating team may change the oral medications in the future to a depot injectable antipsychotic medication as DKM has shown a poor adherence to oral medications in the past.
4. Dr NC reported that most of DKM's symptoms were still present but following commencement of the medication DKM appears to be more settled and not as irritable as she was on admission to hospital.
5. The Tribunal accepted the expert evidence of Dr NC and is satisfied that the treatment being administered is appropriate and effective treatment for DKM's mental illness as defined in the Act. 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. Dr NC told the Tribunal that DKM had a history of non-adherence to medication to treat her mental illness and as a consequence DKM's mental state has relapsed. Dr NC also stated that DKM has said she does not want to be in hospital and wants to be discharged.
2. Dr NC said that a treatment order was necessary to maintain DKM's compliance with her treatment and detain her in hospital for that treatment. The Tribunal accepts the evidence and is satisfied that without an order in place it was highly probable that DKM may cease taking her medications and discharge herself from hospital.
3. In addition, DKM has been assessed by Dr NC as not having decision making capacity (see below). The Tribunal is satisfied as to the evidence on capacity that DKM is unable, at this stage, to provide voluntary informed consent to treatment and that treatment can only be administered under the authority of a treatment order. 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 NC told the Tribunal that DKM does not believe that she has a mental illness or that she needs any treatment.
3. Dr NC assessed DKM's ability to understand, retain, use and weigh information about her illness and treatment as impaired as DKM is thought disordered. Dr NC said the treating team have provided DKM with information, in particular information about the medication that was being administered, and when she has asked questions of DKM, DKM either does not respond or her answers are incoherent, and Dr NC is unable to understand the content of those answers.
4. Dr NC also stated that during conversations with DKM, DKM becomes very distracted by delusional content and unseen stimuli which she responds to.
5. In terms of communicating her decision when discussing the most appropriate treatment for DKM, Dr NC states DKM may switch the topic or gives incoherent answers.
6. Accordingly, we are satisfied that DKM does not have decision-making capacity within the meaning of the Act and the s 40(e) criterion is satisfied.

1. We were satisfied on the evidence before us at hearing that DKM meets the treatment criteria under s 40 of the Act. Consequently, we made a treatment order in respect of DKM on 9 April 2025 which remains in place until 8 October 2025.