Mental Health Act 2013 (Tas); ss, 4, 6, 12, 15, 40, 49, 179, 181, 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.

The decision has been anonymised for the purpose of publication.

1. KXG (the patient) is a 62 year old man who currently resides in [a Tasmanian city]. He is currently subject to a treatment order under the Mental Health Act 2013 (Tas) (the Act).
2. The former Mental Health Tribunal first made the current treatment order on 28 October 2020. The order has since been reviewed, varied and renewed by the former Tribunal, and subsequently by this Tribunal on multiple occasions. The current treatment order represents the fifth time that the order has been renewed. It is not due to expire until 22 October 2025.
3. KXG has a long history of being the subject of a treatment order. The Tribunal has issued multiple statements of reasons in relation to KXG:

(i) KXG (180 Day Review of Treatment order) [2023] TASCAT (unpublished)

(ii) KG (Application to Renew Treatment order) [2023] TASCAT 216

(iii) KG (180 Day Review of Treatment order) [2024] TASCAT 87

(iv) KG (Application for Renewal of Treatment order) [2024] TASCAT 200

1. The Act requires that treatment orders are reviewed within intervals of 180 days so long as they remain in effect. We conducted such mandated review of the current order on 16 April 2025 on the papers. Upon the conclusion of that review we determined that the order should be affirmed.
2. On 2 May 2025 the patient's legal representative, Ms Rylee Olsson of Tasmania Legal Aid, requested that the patient be provided with a written statement of reasons for our order. These are the requested reasons.

1. On 4 April 2025 the Tribunal's registry wrote to KXG and the other parties to the proceedings advising that a statutory review of the current treatment order was required to be conducted imminently. The letter went on to advise that it was the Tribunal's intention to proceed to conduct the review, on the papers, unless KXG or another party objected and wished for the Tribunal to proceed by way of a hearing. If KXG or any other party so objected, they were invited to do so on or before 11 April 2025.
2. The registry advised that KXG contacted the Tribunal on 8 April 2025 after having received the letter referred to in [6] above. It is reported, amongst other things, that KXG declined the opportunity for the review to proceed by way of a hearing. As such, we proceeded to conduct the review on the papers.
3. In conducting the review, we had before us the current treatment order, the most recent application for renewal of the order, a review report authored by Dr QE dated 11 April 2025, and submissions from Ms Olsson dated 15 April 2025.
4. The current treatment order KXG is subject to is made in standard terms, identifies the current treatment setting as in the community, and provides authority for KXG to be treated with both antipsychotic medication and anticholinergic medication.
5. Ms Olsson's brief submissions were as follows:

Mr [G] seeks that the Tribunal consider this submission when reviewing his Treatment Order. > > Attached to this submission is a six-page letter written by Mr [G], outlining his view about the Treatment Order. This letter was also read to the Tribunal at the hearing of a renewal application on 17 October 2024. > > Consistent with Mr [G]'s instructions, I have redacted the name of the alleged perpetrator of childhood abuse referred to on page four. > > Mr [G] wishes to raise two further matters in addition to this letter. > > Firstly, Mr [G] has experienced weight gain as a side-effect of anti-psychotic medication. He has recently commenced weight loss medication and has lost some weight, but he remains concerned about the impact of his weight gain on his physical health. > > Secondly, Mr [G] wishes to reiterate that he was misdiagnosed with schizophrenia by Dr [ST] in his late 20s. Mr [G] experienced, in his word, a panic attack, which was misidentified as a "psychotic episode" by Dr [T]. Mr [G] disagrees that any of his admissions to hospital since this time have been due to a psychotic episode. > > Mr [G] is opposed to the continuation of the Treatment Order, and seeks that it be discharged.

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

181. Review of treatment order > > (1) The following provisions govern the review of a treatment order: > > (a) the Tribunal must review the order within 60 days after it is made if it is still in effect; > > (b) the Tribunal must further review the order within 180 days after it is made if it is still in effect; > > (c) after the further review referred to in paragraph (b), the Tribunal must further review the order at intervals not exceeding 180 days for so long as it remains in effect; > > (d) ... > > (e) ... > > (f) a review need not involve a hearing, but is to be conducted - > > (i) in the case of a review referred to in paragraph (d) and in respect of which section 47A applies in relation to the patient, by a division - > > (A) of one member; or > > (B) of 3 or more members; or > > (ii) in any other case, by a division of 3 members. > > (g) on review, the Tribunal may affirm, vary or discharge the order.

3. In reviewing a treatment order under s 181(1)(c) of the Act, the Tribunal is necessarily required to determine whether the patient continues to meet the treatment criteria. 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 - > > (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.

4. In exercising our discretion whether to affirm, vary or discharge a treatment order, we are to consider the objects of the Act outlined under s 12:

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.

5. Critically, we must refer to the mental health service delivery principles when exercising our responsibilities under the Act which is outlined 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]).

1. The term 'metal illness' is defined under s 4 of the 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

1. The information before us indicated that KXG has had a long history of being diagnosed with schizophrenia. In fact, in his own letter submitted for consideration by the Tribunal, whilst asserting he has been misdiagnosed, KXG confirmed that he has been diagnosed with schizophrenia for 35 years.
2. In his report, Dr QE confirmed that KXG's diagnosis remained schizophrenia and indicated that as recently as his last assessment, being 11 April 2025, that KXG was:

experiencing ongoing auditory hallucinations (running commentary, derogatory) delusional beliefs that others in the community are speaking ill of him.

3. Later in the report, Dr QE indicated that KXG's diagnosis and concurrent symptomology continued to impact his daily life, and most concerningly advised that KXG was recurrently getting into altercations with the people he believed are speaking about him in the community, escalating verbal aggression towards them and subsequently getting barred from public places, such as Bunnings.
4. We note in Ms Olsson's submissions that KXG was opposed to the continuation of the treatment order and, from the contents of his letter, he does not believe that he has any form of mental illness.

As with my history, I would like to say that my first and only "psychotic episode" was in fact a severe panic attack which occurred in my late 20s so as such I was wrongly diagnosed. I do not have schizophrenia or any sort of mental illness.

5. In relation to interactions with members of the public, KXG goes on to say in his letter:

There is no doubt that people in the community are saying stuff about me when I am around including insults etc and which has [sic] absolutely nothing to do with auditory hallucinations.

6. We accepted the evidence of Dr QE that the patient has a long history of mental illness, specifically schizophrenia, and continues to exhibit symptomology associated with such a diagnosis. We reject the position of KXG that he does not, and never has experienced mental illness which is unsupported by both historical or concurrent evidence.
7. The criterion is met.

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

1. Under this criterion, we need to be satisfied that without treatment, the patient's mental illness will, or is likely to, seriously harm the patient's health and safety, or the safety of others. His Honour Blow CJ (as he then was) provided interpretative commentary on this criterion in two previous decisions.
2. In S v Mental Health Tribunal [2016] TASSC 34, his Honour mentioned at [22]:

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.

His Honour made additional comments regarding this criterion in B v Mental Health Tribunal [2020] TASSC 10 at [14]:

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. Ground 2 must therefore fail.

Dr QE provided the following assessment of ongoing risks of harm to both KXG and others:

[K] has an enduring risk of deterioration in mental state, reputational damage, and harm to others due to his schizophrenia. When unwell he gets into verbal altercations (including threatening to kill) with members of the public whom he believes are speaking ill of him. Psychotically driven behaviours have resulted in charges being brought against him including restraining orders made by his mother for threats of violence. He has been barred from public places in his locality (eg Bunnings) for his persecutory beliefs and escalating behaviours there.

In his letter to the Tribunal, KXG's position was that he had never physically harmed anyone and:

on occasion I said you're dead but that was in the heat of the moment when I found out that I had issues with my heart.

Further KXG acknowledged the existence of a restraining order against him by his mother but:

with reference to the restraining orders against me by my mother - they had absolutely nothing to do with physical violence against her.

We accept the evidence of Dr QE that without treatment KXG's mental illness is likely to seriously harm his health or safety due to ongoing deterioration in his mental state. Further, based upon the evidence of Dr QE, we are satisfied that without treatment, KXG's mental illness would be likely to seriously harm the safety of others. Dr QE outlined the current pattern of KXG engaging in verbal altercations with members of the public, including making threats to kill. In this regard, KXG's own evidence through his letter submitted to the Tribunal effectively corroborates Dr QE's evidence. 8. We are satisfied that this criterion is met.

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

1. We need to be satisfied that the outcome of the proposed treatment is appropriate and effective as per s 6(1) of the Act:

6. Meaning of treatment > > (1) For the purposes of this Act, treatment is the professional intervention necessary to -

(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

1. In S v Mental Health Tribunal, his Honour Blow CJ commented on the interpretation of this criterion at [22] and [23]:

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).

2. It was Dr QE's position that the treatment ordered by the current order remains appropriate and effective. It was his view that the adherence to medication combined with engagement with psychology services had reduced the level of altercations KXG has had with members of the public and were designed to reduce his frustration and escalating behaviours arising from delusional beliefs. Dr QE also asserted that the current treatment regimen, whilst not improving KXG's insight into his condition, had resulted in his response to his distress becoming less problematic. KXG, through his letter to the Tribunal, expressed his concerns with the impacts of medication he has been taking for the last 35 years, related to treatment for mental illness since he was first diagnosed. In his correspondence, KXG states:

What I would like to say as regards the medication I am on is that it is slowly killing me and you people know that. I want to live and live as long as I can and I now realise my life will most likely be cut short because of the medication. I should not have ever been medicated to start with.

3. In her submissions, Ms Olsson reiterated KXG's concerns about the impact of treatment on his weight and physical health stating that he is has experienced weight gain as a side effect of anti-psychotic medication.
4. Whilst we have taken account of KXG's views as to current treatment, especially the potential side effects, we are satisfied based upon the evidence of Dr QE that the current treatment regimen under the order is directed towards the management of the ill effects of KXG's mental illness. We accept the evidence of Dr QE, uncontested on this point, that the current treatment regimen had resulted in a level of reduction of KXG's behaviours based upon delusional beliefs.
5. This criterion is met.

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

1. It was abundantly clear from the evidence of both Dr QE and from KXG himself that he does not accept that he has a mental illness, that he is opposed to any medication and subsequently, without an order being in place, it is highly improbable KXG would be subject to any treatment for mental illness.
2. Further, as noted below, we accepted the professional opinion of Dr QE that the patient currently lacks decision making capacity to provide informed consent, and as such, an order is required for ongoing treatment.
3. This criterion is met.

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

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

7. Capacity of adults and children to make decisions about their own assessment and treatment > > (1) For the purposes of this Act, an adult is taken to have the capacity to make a decision about his or her own assessment or treatment (decision-making capacity) unless a person or body considering that capacity under this Act is satisfied that -

(a) he or she is unable to make the decision because of an impairment of, or disturbance in, the functioning of the mind or brain; and

(i) understand information relevant to the decision; or

(ii) retain information relevant to the decision; or

(iii) use or weigh information relevant to the decision; or

(iv) communicate the decision (whether by speech, gesture or other means).

1. Dr QE provided detailed evidence through his report as to his professional assessment that KXG currently lacks decision making capacity, noting that he had most recently assessed him in the lead up to the statutory review on 11 April 2025.
2. In terms of lacking an understanding of his condition, Dr QE states:

[K] fails to understand his mental health diagnosis of schizophrenia. He disagrees that he suffers from schizophrenia, instead arguing that he suffered from a panic attack 30 years ago and he has been mislabelled since. He does not marry any of his symptomatology (chiefly auditory hallucinations) to this diagnosis, instead holding firm to his belief that people in the community are speaking ill of him.... > > He disagrees that medications are of benefit and disagrees they have helped him out of hospital and altercations in the community.

3. Whist acknowledging there were no deficits in KXG's ability to retain information as to his mental illness, nor to communicate, Dr QE did state however that he is unable to use and weigh information as to his assessment and treatment:

[K] fails to use and weigh information related to his mental health. He disagrees that he suffers from a mental health condition in schizophrenia and as such disagrees that this requires treatment. If given the opportunity he would cease anti-psychotic medications as he believes they are atrophying his brain and only case [sic] excess sedation. He disagrees that medications are of any benefit. Similarly, he disagrees that inpatient admissions were ever warranted and would not seek out assistance from mental health services should he be relapsing. This failure to use and weigh and weigh information arises from his delusional beliefs and lack of insight arising from his schizophrenia... > > These deficits arise from persecutory delusions and auditory hallucinations as a result of [KXG]'s schizophrenia.

4. Whilst we note KXG's opposition to the diagnosis of mental illness, specifically schizophrenia, apart from his personal view on this matter, no evidence was put to us contradicting the evidence of Dr QE. We accept the evidence of Dr QE as to the current diagnosis and we accept his current assessment of KXG's decision making capacity as defined under the Act.
5. This criterion is met.

The discretion to affirm, vary or discharge a treatment order

1. Given the evidence before us, we were satisfied that we should exercise our discretion to affirm the treatment order.
2. We note that without further involvement of the Tribunal, in the event that an approved medical practitioner assesses the patient as no longer meeting the treatment criteria outlined under s 40 of the Act, then subject to s 49(3), the practitioner must discharge the treatment order we have made (s 49(2)) and has the authority to do so (s 49(1)(a)).

1. The treatment order made for the patient on 28 October 2020 is affirmed.