1. Medical and health practitioners employed by the Tasmanian Health Service, and particularly those working in the Department of Emergency Medicine; and
2. Approved medical practitioners.

1. Such education and training should underline the need for accuracy and completeness of prescribed documents and that restraint must only occur in accordance with the provisions of the Mental Health Act 2013.
2. These recommendations are directed to the following:
   1. The Secretary of the Department of Health in capacity as both Secretary (clause 1(g) of Part 1 in Schedule 4 of the Act) and the controlling authority of the facility in which EQ was accommodated (clause 1(e) of Part 1 in Schedule 4 of the Act); and
   2. The Chief Psychiatrist.

Mental Health Stream - Issuance and execution of Detaining for Assessment - Assessment order -Affirmation of Assessment order - The use of physical, mechanical and chemical restraint - Validity of Detaining for Assessment - Validity of UCT - Validity of restraint - Recommendations made.

Mental Health Act 2013; ss 3, 4, 6, 12, 15, 15A, 17, 24, 25, 26, 27, 28, 30, 32, 34, 55, 57, 138, 180, 186, 187, 193, 194, Sch 1;

Guardianship and Administration Act 1995;

Work Health and Safety Act 2012.

B v Mental Health Tribunal [2020] TASSC 10;

CMB v Mental Health Tribunal [2021] TASFC 4;

EDT v State of Tasmania (Review Proceedings - Own Motion) [2024] TASCAT 190;

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336;

Motor Accidents Insurance Board v Churchman [2020] TASSC 6;

Jones v Dunkel [1959] HCA 8;

SBC (Review of Assessment Order) [2024] TASCAT 53; and

BD (Review of Assessment Orders) [2024] TASCAT 66.

Simon Gates (State Litigation Office) for the respondent

This decision has been anonymised for the purpose of publication

1. EQ was an inpatient in September 2024 at an approved facility under the Mental Health Act 2013 (the Act). He became an inpatient after being transported by ambulance and police from the PACER team under a Detaining for Assessment of 6 September 2024 and was taken to the approved facility in southern Tasmania.
2. EQ was lawfully detained for assessment, and an assessment order was made in accordance with provisions of the Act. Urgent Circumstances Treatment documentation was also completed, however as it was not completed by an approved medical practitioner it was found by this Tribunal to be invalid. Due to oversight failures by those who were treating EQ, for a period from 6:22pm to 7:45pm during his admission, we have determined that EQ was chemically and mechanically restrained without authority under the Act. This was primarily due to communication breakdown, insufficient oversight, and a lack of understanding of the workings of the Act by those employed in the Department of Emergency Medicine (Emergency Department) at the time of EQ's admission.

1. EQ is a 45-year-old man who resides in southern Tasmania. He was brought into hospital (the approved facility) via ambulance with police in attendance at 12:10pm on 6 September 2024. EQ remained there as an inpatient, treated under the Act until his discharge at 11:05am on 7 September 2024.
2. EQ was taken to the approved facility for psychiatric assessment pursuant to a Detaining for Assessment authorisation. The Police and Clinician Emergency Response (PACER) received a notification from concerned colleagues of EQ. The PACER team observed EQ demonstrating irregular behaviour, experiencing delusions, making inappropriate comments, having inappropriate interactions and determined it necessary to detain him for assessment and escort him to the approved facility. During EQ's admission to the Emergency Department, he was reviewed and placed under an assessment order. Urgent circumstances treatment documentation was completed.
3. Whilst EQ was treated in the Emergency Department, he was the subject of a Code Black. A Code Black means there is a personal threat or emergency, such as violence or aggression from patients or visitors which requires an immediate security response.
4. On 1 June 2025, the Tribunal received an application for several reviews filed by EQ. The reviews sought by EQ were;
   1. A review of the Detaining for Assessment pursuant to s 193;
   2. A review of the making of an assessment order pursuant to s 180;
   3. The urgent circumstances treatment pursuant to s 186 of the Act; and
   4. A review of restraint, pursuant to s 187 of the Act.
5. In his application for review of Detaining for Assessment, EQ details that he did not meet the requirements for detainment and therefore this is a violation of s 17 of the Act.
6. EQ also submits that the assessment order (Form - Civil 06) detaining him for assessment is invalid which leads to a violation of s 55 (Urgent Circumstances Treatment) of the Act. EQ maintains that because the Detaining for Assessment authorisation was invalid, that any subsequent actions taken in reliance of the Detaining for Assessment are also invalid.
7. The application for review of use of restraint details that a four-point mechanical restraint, chemical restraint, physical restraint and a restraint involving a ligature, are unauthorised and excessive. EQ argues that those actions constitute a breach of s 57 of the Act which regulates the use of restraint in mental health settings.

1. The applications were listed for final hearing on 13 October 2025. However, at that hearing employees of the Tasmania Health Service (THS) present at the hearing, except for Dr NE who was already legally represented, advised us they wished to have the benefit of legal representation. Consequently, the matter was adjourned, and the final hearing occurred on 17 November 2025 and 9 December 2025.
2. EQ attended the hearing as did a number of representatives of the THS who formed EQ's treating team, many of whom gave evidence, including Dr TT of the Community Psychiatry Team; BG, a PACER Clinical Nurse Consultant; Registered Nurse BH; Dr CC, the associate director of the Emergency Department; CI, an Emergency Support Office; and Registered Nurse KC. The representatives from the THS, excluding Dr NE, were represented by Mr Simon Gates of the State Litigation Office who was instructed by Ms Jenny Kaldor. Dr NE attended the hearing as did his counsel, Mr James Meehan.
3. The focus of this hearing was whether EQ had been the subject of lawful:

(a) Detaining for Assessment,

(b) assessment,

(c) treatment,

(d) detention; and

(e) physical, chemical and mechanical restraint,

and whether such had occurred with relevant authority whilst EQ was a patient at the approved facility.

1. There was no suggestion before us that EQ was a voluntary patient at any time during his admission, that is, providing his own consent. It was clear that EQ was intended to be assessed and treated as an involuntary patient under the Act. Section 3 of the Act provides that "an involuntary patient means a person who is subject to an assessment or treatment order".

1. At the commencement of the hearing, the Tribunal considered it appropriate to set out the sequence of events to understand the matters raised for review by EQ.
2. Although EQ agreed to the chronology on the first day of the hearing, it is clear from his submissions that certain elements of the agreed chronology are disputed by EQ. With the exception of the matters raised at [15 (d) and (e)] the following timeline of events is not in dispute:

(a) On 6 September 2024 at 11:45am, EQ was transported to the Emergency Department of the approved facility under a detaining assessment form pursuant to s 17 of the Act.

(b) On 6 September 2024 at 12:10pm, EQ arrived in the Emergency Department of the approved facility via ambulance with police in attendance. This is reported in triage notes completed by Triage Nurse NH and confirmed in subsequent correspondence to EQ of 8 September 2024 (the Emergency Department Discharge Letter).

(c) At 1:36pm, EQ was seen by Dr NE.

(d) At 3:45pm, an assessment order was made by NE. During the hearing, it became apparent that EQ did not agree that at 3:45pm an assessment order was made by Dr NE which pursuant to s 34(a) was due to expire 24 hours later at 3.45pm on 7 September 2024. When asked by the Tribunal if Dr NE made an assessment order at 3:45pm on 6 September, EQ replied, "I do not believe that he did," however he provided no further submissions as to why he believed Dr NE did not make an assessment order at 3:45pm.

(e) Between 6:22pm to 6:55pm, EQ was subject to a Code Black as evidenced by a Department of Health Incident Report completed by a security officer MK. It is reported in a file note prepared by the Nurse Unit Manager, MS that EQ placed a staff member into a headlock which resulted in the code black emergency being issued at 6:22pm in the Emergency Department reportedly due to EQ's aggression and because he was trying to abscond.

(f) EQ was administered antipsychotic medication Droperidol 10 mg by intramuscular injection (at 6.30pm) and placed onto a bed by the Code Black Response Team (CBRT) which included the clinical lead, two security guards, the orderly supervisor, an Emergency Support Officer (ESO), CI and Registered Nurse, BH. This is detailed in the Department of Health Incident Reporting Form completed as part of the Code Black.

(g) EQ was then transferred to Resus 4 and placed in mechanical restraints and again medicated by staff with Droperidol 10 mg intramuscularly. CBRT were placed on standby as EQ did not settle. It is also reported in the Wilson Security Department of Health Incident Report that EQ spat in the eye of a security officer while being restrained. The Code Black Incident Report documents that the restraint consisted of physical, chemical and mechanical restraint.

(h) At 6:35pm on 6 September 2024, affirmation of the assessment order (Part B) was completed but not signed by Dr TT. Dr TT subsequently confirmed in writing on 23 September 2025 that he had undertaken the affirmation of assessment order though it was "rather academic, as EQ was discharged before the order needed to be affirmed".

(i) During the hearing Dr TT advised that although he completed the Part B of the assessment order, it was Dr LS who conducted the assessment of EQ and that Dr TT was acting as scribe. Dr TT's evidence was that he did not finalise the affirmation of the assessment order as he was called away to another patient who was quite disruptive.

(j) Nurse BH, in the nursing shift report made on 6 September 2025 at 7:29pm in EQ's clinical file noted increasing erratic and bizarre behaviour by EQ in the main Emergency Department area .It was further reported EQ continued to exhibit ongoing verbal and bizarre behaviour and it was noted an assessment order, and an Urgent Circumstances Treatment form (UCT) had been completed. EQ was given a further 10mg of Droperidol at 6:55pm and 2mg of Lorazepam at 7:05pm, reportedly with good effect

(k) At 7:45pm, the four-point restraints were removed by Registered Nurse FO, detailed in her Emergency Department file note at 8:08pm which states:

Clinical handover received from late shift, care taken over by night nursing staff. Remains on AO as of 06/05/24 [sic] at 1545. Security in attendance.

On handover, patient in 4 point restraints. Explained to patient that the restraints were applied for safety of both himself and the staff caring for him and that if they are to come off he needs to remain calm and cooperative. Patient understanding of this. 4 point restraints removed by myself at 1945.

(l) On 7 September 2024 at 10:06am, EQ declined oral medications. At 11:05am EQ was seen by NS who determined there was insufficient evidence to continue to detain EQ under the Act. The assessment order was discharged at 11:05am and EQ was discharged from the approved facility. Ultimately the affirmation of the assessment was not required because EQ was discharged from the approved facility prior to the assessment order expiring.

(m) On 18 September 2024, a notification of discharge of assessment order for EQ was received by the Tribunal.

1. In terms of the Tribunal's jurisdiction to review whether EQ was assessed, treated, detained and/or restrained with authority as an involuntary patient, we must examine the authority provided to us in Division 2 of Part 3 of the Act. The relevant sections are as follows:

180. Review of assessment order > > The following provisions govern the review of the making of an assessment order: > > (a) the Tribunal may review the making of the order at any time - > > (i) on its own motion; or > > (ii) on the application of any person with the necessary standing; > > (b) the Tribunal may review the making of the order even if it is no longer in effect; > > (c) the Tribunal may also review the making of any other assessment order, concerning the same patient, at the same time; > > (d) on review, the Tribunal may affirm the order or, if it is still in effect, discharge the order; > > (e) the Tribunal is to - > > (i) give a copy of its determination to the patient (together with a statement of rights in a form approved by the President of the Tribunal); and > > (ii) give a copy of its determination to the Chief Psychiatrist; and > > (iii) if the order is still in effect and requires the patient's admission to an approved facility, give a copy of the determination to the controlling authority. > > 186. Review of urgent circumstances treatment > > (1) The following provisions govern the review of urgent circumstances treatment: > > (a) the Tribunal may do the review at any time - > > (i) on its own motion; or > > (ii) on the application of any person with the necessary standing; > > (b) the Tribunal may do the review even if the treatment has ceased; > > (c) on review, the Tribunal may - > > (i) in the case of an involuntary patient not subject to a treatment order, recommend that the patient be assessed against the treatment criteria to see whether or not a treatment order needs to be made; or > > (ii) in the case of an involuntary patient subject to a treatment order, recommend that the patient be assessed to determine whether an application needs to be made to have the treatment order varied; or > > (iii) in the case of a forensic patient, recommend that an approved medical practitioner seek the Tribunal's authorisation of treatment in respect of the patient; or > > (iv) set aside an authorisation under section 55 or section 87; > > (d) on review, the Tribunal may also do either or both of the following: > > (i) seek additional information from the Chief Psychiatrist or approved medical practitioner (for example, a report about the efficacy of the treatment); > > (ii) recommend that the Chief Psychiatrist exercise any of his or her powers under this Act consequent on or in connection with the treatment. > > (2) The Tribunal's power under subsection (1)(a)(i) applies not only to specific instances of urgent circumstances treatment but also to any group of such treatments jointly, whether of the same patient or different patients. > > (3) The provisions of paragraphs (c) and (d) of subsection (1) apply, with any necessary modification, to a review of the kind referred to in subsection (2).

2. The powers outlined under s 186 do not assist the Tribunal's review of UCT as a review of an invalid authorisation has no practical utility as there is no relief that can be granted under s 186.

187. Review of seclusion and restraint > > The following provisions govern the review of any instance of seclusion or restraint: > > (a) the Tribunal may do the review on its own motion at any time; > > (b) the Tribunal must do the review on the application of any person with the necessary standing; > > (c) the Tribunal may do the review even if the period of seclusion or restraint has ended; > > (d) on review, the Tribunal may - > > (i) affirm the use of the seclusion or restraint; or > > (ii) direct that the seclusion or restraint be terminated or suspended forthwith or by a specified time (if it is ongoing); or > > (iii) declare that the patient should not have been subjected to the seclusion or restraint, either at all or in the way it was. > > 194. General powers, &c., on review > > The following provisions govern the conduct of any review: > > (a) the Tribunal may combine a mandatory review with a discretionary review; > > (b) the Tribunal may refer any matter concerning the review to the Chief Psychiatrist for possible intervention; > > (c) the Tribunal, in making a determination, may issue any related or incidental directions it considers appropriate and, without limiting this, may - > > (i) direct that the patient be examined, assessed or given specified health care; and > > (ii) direct a specified person to provide the Tribunal or another person with a specified report at or by a specified time; and > > (iii) direct that a specified action be taken or not taken in respect of the patient; and > > (iv) give directions to ensure and monitor compliance with its determination; and > > (v) direct that the patient or another person be given a statement of rights; > > (d) the Tribunal may give a copy of its determination to any health professional or other person who, to its knowledge, is directly involved with the patient's treatment or care; > > (e) the Tribunal may issue such recommendations to such persons as it considers appropriate.

3. Finally, in determining reviews we need to be alert to the objectives of the Act in s12 and we must have regard to 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 the comments in CMB v Mental Health Tribunal [2021] TASFC 4 at [31].

1. Section 17 grants a mental health officer the power to temporarily detain a person for the purposes of assessment. This allows a mental health officer to detain someone if they believe it is necessary to assess whether they meet the criteria for involuntary admission or treatment, even if the person is not already at an approved assessment facility. Section 17 of the Act provides:

17. Power to temporarily detain person for assessment > > (1) An MHO or police officer may temporarily detain a person for the purpose of assessing the person if the MHO or police officer reasonably believes that - > > (a) the person has a mental illness; and > > (b) the person should be assessed against the assessment criteria; and > > (c) the person's safety or the safety of other persons is likely to be at risk if the person is not so detained. > > (2) For the purposes of subsection (1) - > > (a) no form of warrant is required; and > > (b) the MHO or police officer is not required to confirm whether, under this or any other Act, another process is in train in respect of the person; and > > (c) a police officer is not required to exercise clinical judgment when forming a reasonable belief as to whether a person - > > (i) has a mental illness; or > > (ii)should be assessed against the assessment criteria; and > > (d) the custody and escort provisions apply, and continue to apply while the person remains detained in accordance with that subsection.

1. As part of the evidentiary material, the Tribunal received various witness statements from healthcare workers involved in the care of EQ, all of whom appeared at the hearing, provided oral evidence and made themselves available for cross examination.
2. The Detaining for Assessment Form Civil 04, details that on 6 September 2024 at 11:45am, EQ was detained for assessment pursuant to s 17 of the Act and he arrived at the assessment facility at 12:10pm.
3. The Detaining for Assessment Form Civil 04 completed by a Mental Health Officer BG, outlined that it was reasonably believed that EQ had a mental illness and should be assessed against the assessment criteria. That document referred to:

strong collateral concerns of delusions (persecutory) safety, escalating threats of violence in the context of delusions - comments made to minor.

4. The Civil 04 Form was completed by BG. BG ticked the boxes indicating that she reasonably believed that EQ "has a mental illness" and "should be assessed against the assessment criteria." However, BG omitted to complete the "tick box" on the document confirming "their [EQ's] safety, or the safety of other persons is likely to be at risk if the person is not detained". BG gave evidence at the hearing that "this was an oversight, an error, unfortunately. I meant to tick it. I believed he met that criteria."
5. BG's further evidence was that she received an infield referral and phone call from a colleague of EQ's who was concerned about EQ's mental state. The PACER team spoke with the referrer about EQ's mental state, and emails were forwarded from the referrer to BG and the PACER team. Based on this information, BG felt there were sufficient grounds to make a phone call to EQ which she did. Upon answering the telephone call, EQ told BG that he wanted "a pizza and a wife" and subsequently terminated the phone call. This statement together with the collateral information in the possession of BG triggered BG to arrange a home visit to assess EQ's mental state further.
6. The PACER team (which is a group of three comprised of a police officer, a mental health clinician and a paramedic) and an additional police unit attended EQ's home.
7. Based on the collateral information provided and BG's own assessment of EQ, it was determined that EQ's safety was at risk, and it was deemed necessary to have him detained. EQ was then transported to the approved assessment facility by ambulance with police from the PACER team in attendance.

1. EQ disputed the collateral evidence which led BG to issue the Detaining for Assessment, stating that they were "led astray by less honourable people or persons who worked for the Department of Justice". EQ in particular was referring to comments made BG of "strong collateral concerns of delusions (persecutory), safety, escalating threats of violence in the context of delusions. Comments made to a minor."
2. EQ further submitted that he had been endowed with specific training to resist authority along with counterintelligence, counter interrogation, counter chemical interrogation and counter torture interrogation, and that BG had not been trained to specifically resist authority.
3. In respect of the Detaining for Assessment authorisation, EQ relied on submissions that the Detaining for Assessment Civil 04 Form was not correctly completed, therefore it was invalid, and any actions taken subsequently are invalid. EQ further submitted that any oversight of the Detaining for Assessment document should invalidate the document given the nature of the powers provided by that document. EQ further submitted that because the Detaining for Assessment authorisation is invalid, the assessment order is also invalid.
4. EQ suggested that he has recently obtained information that would indicate that a minimum of two separate reports would be required to initiate PACER action. EQ provided no independent evidence to support this proposition.
5. Mr Simon Gates made submissions on behalf of the THS. He submits that failure to tick one box on the Detaining for Assessment form does not of itself invalidate the detention because it is not a requirement of lawful detention under s 17 and further that BG gave evidence as to her state of mind that EQ met the criteria for Detaining for Assessment.

Detaining for Assessment Considerations and Conclusions

1. We accept the unequivocal evidence of BG that she was satisfied that EQ met the necessary criteria for the involuntary admission or treatment and that the actions taken pursuant to s17 were done with the authority of the Act. We are satisfied the s 17 Detaining for Assessment authorisation was in effect when the assessment order was made and that EQ continued to be an involuntary patient on the making of the assessment order.
2. Notwithstanding the box on the Detaining for Assessment form was not ticked that does not in our view invalidate the document as BG gave clear evidence that she had formed the view that EQ met the necessary criteria under s 17 before issuing the Detaining for Assessment.
3. We affirm the Detaining for Assessment pursuant to s 193(b)(i).

Assessment Order and Urgent Circumstances Treatment

1. An assessment order must be made using the Chief Psychiatrist's approved form (Civil 06) Part A. If the order is affirmed by an Approved Medical Practitioner (AMP) it may be extended for a further period not exceeding 72 hours. Affirmation must take place through Part B of the approved form. For an assessment order to be valid in the initial 24-hour period there must be compliance with ss 24, 25 and 26 of the Act.

24. Making an assessment order > > (1) A medical practitioner may make an assessment order in respect of a person in, and only in, the following circumstances: > > (a) . . . . . . . . > > (b) . . . . . . . . > > (c) the medical practitioner must have examined the person; > > (d) the examination must have been done in the 24-hour period immediately before the assessment order is made; > > (e) the medical practitioner must be satisfied from the examination that the person needs to be assessed against the assessment criteria; > > (f) the medical practitioner must be satisfied that a reasonable attempt to have the person assessed, with informed consent, has failed or that it would be futile or inappropriate to make such an attempt. > > (2) A medical practitioner may make an assessment order authorising a patient's admission to and, if necessary, detention in an approved hospital. > > (3) Despite subsection (2), a medical practitioner is not to make an assessment order authorising a patient who is a child to be admitted to and, if necessary, detained in an approved hospital unless the medical practitioner is satisfied that the hospital - > > (a) has facilities and staff for the assessment of the patient; and > > (b) is, in the circumstances, the most appropriate place available to accommodate the patient. > > (4) A medical practitioner may make an assessment order without having received an application for the order. > > 25. Assessment criteria > > The assessment criteria are - > > (a) the person has, or appears to have, a mental illness that requires or is likely to require treatment for - > > (i) the person's health or safety; or > > (ii) the safety of other persons; and > > (b) the person cannot be properly assessed with regard to the mental illness or the making of a treatment order except under the authority of the assessment order; and > > (c) the person does not have decision-making capacity. > > 26. Form and content of assessment order > > (1) To be valid, an assessment order must - > > (a) be in an approved form; and > > (b) be correctly completed. > > (2) An assessment order is taken to be correctly completed if it - > > (a) . . . . . . . . > > (b) identifies the patient; and > > (c) specifies when the examination referred to in section 24(1)(c) was done; and > > (d) affirms that the patient needs to be assessed against the assessment criteria; and > > (e) specifies an assessment setting; and > > (ea) specifies if the order authorises the patient's admission to and detention in an approved hospital; and > > (f) specifies (by date and time) when it was made; and > > (g) specifies or provides for any matter required by the regulations; and > > (h) identifies, and is signed by, the medical practitioner who makes it. > > (3) . . . . . . . . > > (4) An assessment order may, without compromising its validity, specify or provide for any matters, incidental to the assessment of the person in respect of whom the order is made, that the medical practitioner making it considers necessary or desirable in the circumstances.

2. The making of an assessment order does not in itself authorise treatment for a patient without consent (s 27(5)). That is provided for in s 55 of the Act.

55. Urgent circumstances treatment > > (1) An involuntary patient may only be given treatment (urgent circumstances treatment) without informed consent or Tribunal authorisation if an approved medical practitioner authorises the treatment as being urgently needed in respect of the patient. > > (2) An approved medical practitioner may only authorise urgent circumstances treatment in respect of a patient if the approved medical practitioner is satisfied, as a result of an assessment of the patient, that - > > (a) the treatment is necessary for - > > (i) the patient's health or safety; or > > (ii) the safety of other persons; and > > (b) waiting for the treatment to be authorised by the Tribunal (or by a member thereof on an interim basis) would compromise - > > (i) the outcomes of the treatment, as specified in section 6(1), for the patient; or > > (ii) the effectiveness of the treatment, for the patient, in meeting the outcomes of treatment as specified in section 6(1) . > > (3) . . . . . . . . > > (4) . . . . . . . . > > (5) . . . . . . . . > > (6) . . . . . . . . > > (7) . . . . . . . . > > (8) If the authorisation is given, the approved medical practitioner has the following obligations: > > (a) to ensure that the patient is advised of the authorisation as soon as possible after it is given; > > (ab) to give a copy of the authorisation to the Chief Psychiatrist and the Tribunal; > > (ac) to give a copy of the authorisation to the patient (together with a statement of rights in an approved form); > > (b) to place a copy of the authorisation on the patient's clinical record. > > (9) If the authorisation is given, the patient may be given the urgent circumstances treatment until whichever of the following first occurs: > > (a) the treatment is completed; > > (b) . . . . . . . . > > (c) an approved medical practitioner, for any reason he or she considers sufficient, stops the treatment; > > (d) the 96-hour period immediately following the giving of the authorisation expires; > > (da) the assessment order, treatment order or interim treatment order ceases or is discharged; > > (e) the authorisation is set aside by the Tribunal. > > (10) . . . . . . .

3. Urgent Circumstances treatment must however be authorised by an approved medical practitioner. Section 138 details who is an approved medical practitioner.

138. Medical practitioners and nurses > > (1) The Chief Psychiatrist, by instrument in writing, may approve individual persons (or all members of a class of persons) as medical practitioners for - > > (a) provisions of this Act; and > > (b) provisions of any other Act in respect of which the Chief Psychiatrist may have responsibilities. > > (2) To be approved as a medical practitioner under subsection (1) , or to be a member of a class of persons approved under that subsection, a person must be - > > (a) a psychiatrist; or > > (b) a medical practitioner who is otherwise qualified or experienced in the diagnosis or treatment of mental illness. > > (3) The Chief Psychiatrist, by instrument in writing, may approve individual persons (or all members of a class of persons) as nurses for - > > (a) provisions of this Act; and > > (b) provisions of any other Act in respect of which the Chief Psychiatrist may have responsibilities. > > (4) To be approved as a nurse under subsection (3) , or to be a member of a class of persons to whom the approval relates, a person must be a registered nurse who is qualified or experienced in the treatment or care of persons with mental illness. > > (5) An approval is not to be taken for any purpose to constitute a State Service appointment but any person, if appropriately qualified, may hold such an approval (either individually or as a member of a class) in conjunction with State Service employment. > > (6) An approval - > > (a) takes effect on the day on which it is conferred or on such later day as the Chief Psychiatrist specifies in it; and > > (b) unless sooner revoked, remains in effect for 5 years but may from time to time be re-conferred for an equivalent or lesser period. > > (7) An individual approval of a person as a medical practitioner is revoked if the person ceases to be - > > (a) a psychiatrist; or > > (b) a medical practitioner who is otherwise qualified or experienced in the diagnosis or treatment of mental illness. > > ...

Evidence as to the Assessment Order and Urgent Circumstances Treatment

1. As detailed at [15(d) and (e)] an assessment order was made by Dr NE on 6 September 2024 at 3:45pm together with urgent circumstances treatment documentation pursuant to s 55 of the Act. If validly made, an assessment order provides, amongst other things, authority for the patient, without consent, to be assessed, admitted and detained in an approved facility, if necessary (s 27). Section 27(5) specifically provides that an assessment order is not authority for a patient to be given any treatment. That is provided for in s 55 of the Act.
2. EQ was not accepting of the time of the assessment order and the Urgent Circumstances form completed by NE, given he refers to his inpatient admission time of 3:15pm. EQ says that his inpatient admission occurred at 3:15pm and that his UCT assessment order was around 15:45. EQ says that he was admitted against his will as an involuntary patient and there was no paperwork supporting his being an involuntary patient between 3:15pm and 3:45pm.
3. Section 55 provides that an approved medical practitioner may authorise urgent treatment for an involuntary patient without consent or Tribunal approval if it's immediately necessary and delay would harm the effectiveness of treatment. The doctor must inform the patient, notify the Chief Psychiatrist and Tribunal, and record it. Treatment stops when completed either after 96 hours, if the order ends, or if the Tribunal discharges it, whichever occurs first in time.
4. Dr NE concluded in the absence of having the necessary authority under s 138 of the Act that urgent circumstances treatment was necessary for the safety of EQ's health and safety and the safety of other persons. Further that waiting for treatment to be authorised by the Tribunal would compromise the outcomes of treatment specified in s 6(1) of the Act and the effectiveness of treatment for EQ in meeting the outcomes of treatment as specified in s 6(1) of the Act. Dr NE authorised the following treatment as being urgently needed in respect of EQ: Benzodiazepine; anti-depressants; anti-psychotics; anti-cholinergic; and mood stabilisers. Significantly Dr NE was not an approved medical practitioner pursuant to s 138 of the Act and was therefore not authorised under the Act to authorise urgent treatment.
5. EQ has sought a review of the making of an assessment order and the urgent circumstances treatment. Upon Dr NE's examination of EQ, it was observed by Dr NE that he exhibited an unusual tone, rambled through an unconnected presentation of ideas, made a number of inappropriate remarks, expressed persecutory delusions, and noted that he had plans for a child in his neighbourhood.
6. Dr NE reported that EQ's demeanour was characterised by unusual excitement, elevated tone, fast speech, and rambling presentation of thoughts and ideas with little discernible pattern. Dr NE formed a view that EQ was fixated.
7. Dr NE's evidence is that he conducted an extensive examination of EQ that lasted for 1.5 to 2 hours at which time he formed a view that EQ was suffering from a manic episode and before completing the assessment order at 15:45 after consulting with his supervisor, QC, Dr NE was satisfied that the provisions of s 24 of the Act were met.
8. The assessment order permitted EQ to be detained at the facility for up to 24 hours pending further assessment from an approved medical practitioner. The accompanying urgent circumstances treatment form was also completed at the same time as the assessment order. The medication ultimately provided to EQ was as chemical restraint authorised by Dr TT detailed on the drug chart date 6 September 2024. The medication was not provided under the invalid UCT.

Submissions - Assessment Order and Urgent Circumstances Treatment

1. EQ submitted the assessment order completed by Dr NE was tampered with because the numerals written on that document are, in EQ's submission, "effectively illegible" suggesting this was an attempt to make the assessment order appear as if it was made three hours after EQ was admitted to the facility under the Detaining for Assessment.
2. EQ stated that Dr NE had failed to include EQ's next of kin details in the assessment order document and submitted that he failed to do so because he fraudulently filled out the document, and that making a phone call to EQ's next of kin would have provided proof of the real timeline of events.
3. EQ also made submissions in relation to the assessment order. He referred to comments that he suggested were in the assessment order asserting that he was delusional, paranoid, antisocial and grandiose, however the assessment order does not make reference to this information.
4. The Detaining for Assessment Form makes comments about EQ presenting with persecutory delusions, namely:

strong collateral concerns of delusions (persecutory [sic] safety, escalating threats of violence in context of delusions, comments [sic] made to minor.

5. EQ stated that "Dr NE and others had asked questions and prompted this information from me". EQ submitted that he is a multimillionaire and that Dr NE drew a conclusion based on information he thought to be false when in fact the information EQ had provided to Dr NE is correct. EQ stated he is is in fact an owner of several houses and has a reasonable share portfolio and has a significant gross income.
6. EQ advised that he had also seen active service with the Army and that he had been involved in battles and that did not make him crazy, it made him a patriot. He said he also served as part of a protection force for high-ranking government officials, in particular in 2008, that he has a high IQ and that he does wish to partner and have children. However, none of those things mean that he has a mental illness and that Dr NE exceeded his lawful authority. EQ argues that his behaviour was such that s 24(1)(e) was not satisfied.
7. Additionally, EQ's position is that the Detaining for Assessment was invalid and therefore any actions that flow from that document are invalid including the assessment order and the urgent circumstances treatment.
8. Mr Gates made submissions that Dr NE complied with the necessary statutory requirements for an assessment order to be validly made and therefore the assessment order should be confirmed.
9. Mr James Meehan, who appeared on behalf of Dr NE, made no submissions either written or oral as to NE's not being an approved medical practitioner or to the invalid authorisation of urgent circumstances treatment by Dr NE.
10. Mr Gates submitted:

Dr NE filled out and signed an urgent circumstances treatment form in circumstances, whereas I understand it, he was not an approved medical practitioner and therefore didn't have the authority to authorise the urgent circumstances treatment.

11. Mr Meehan submits the assessment order is an independent order from the preceding detainment for assessment order and is valid. Dr NE's evidence was he assessed QE over a period of 1.5 to 2 hours and based on that assessment together with the collateral information in the Detaining for Assessment documentation he concluded that the criteria in s 25 of the Act were satisfied, that he had complied with the provisions of s 24 of the Act and that the assessment order should be affirmed.

Assessment Order and Urgent Circumstances Treatment Considerations and Conclusions

1. For EQ to have been an involuntary patient he must have been the subject of a valid assessment order. A medical practitioner may make an assessment order (s 22), and it takes effect once signed by the medical practitioner (s 28). By virtue of the operation of ss 30 and 32 of the Act, such order ceases 24 hours after it is made unless it is affirmed before its expiry by an approved medical practitioner.
2. Dr NE's evidence both on affidavit and at the hearing was that he was the medical practitioner who examined EQ, the examination was done in a 24 hour period before the assessment order was made, Dr NE was satisfied pursuant to s 24(1)(e) that from examination of EQ he needed to be assessed against the assessment criteria in s 25. Finally, Dr NE was satisfied as to the provisions in s 24(1)(f).
3. Based on various assessments by medical practitioners and a contemporaneous recording of observations of EQ together with his presentation at the hospital there is evidence to suggest that contrary to EQ beliefs he was exhibiting behaviour which was consistent with him not being lucid and consistent with someone who is presenting with either a mental illness or some kind of physiological condition that has impacted upon his mental capacity.
4. Beyond his own evidence, EQ submits no evidence to contradict the findings of Dr NE regarding the criteria in s 25. There is no evidence to suggest there was non-compliance with the provisions of s 24.
5. We find the assessment order was valid and should be pursuant to s 180(d) of the Act be affirmed.
6. We find the Urgent Circumstances Treatment invalid. As Dr NE was not an approved medical practitioner, he did not have authority to authorise treatment under a UCT. We accept the evidence that while an involuntary patient EQ did not receive treatment under the UCT authorisation.

Submissions - Affirmation of the Assessment Order

1. There is dispute as to whether the assessment order was validly affirmed, noting that Dr TT while completing the necessary documentation failed to sign the affirmation of the assessment order. Dr TT gave evidence at the time EQ was at the approved facility Dr TT was working in the Emergency Department as a career medical officer. He reported that he made the notations on the affirmation documentation in particular Part B of that document because he was acting as a scribe for Dr LS who was the consultant. That he was with Dr LS when he conducted the assessment of EQ during which time Dr TT took hand written notes which he later typed up and put into the DMR system at 18:36. Dr TT also gave evidence that he believed that Dr NE completed Part A of the affirmation however he did not sign the affirmation because there was another patient who was quite disruptive and whom Dr TT was attending to at the same time.
2. Dr TT did not sign the affirmation of the assessment order which it is submitted by counsel for THS does invalidate that aspect of the document. However, Mr Gates' submission was that there was no significance insofar as the lawfulness of EQ's detention for the simple reason that he was discharged prior to the expiry of the 24-hour period.
3. EQ asserts that Dr TT did not sign the affirmation of the assessment order for one of two reasons. Firstly, that he was aware that the assessment order has been altered and that he was unable affirm the order in good conscience, or secondly, that he left the room and attended to a Code Black called in respect of EQ and that if he had wanted to sign off on the affirmation that [the Code Black] would have made him realise that it was more important that he do so.

Affirmation of the Assessment Order considerations and conclusions

1. Under s 32 of the Act once a patient who has been separately assessed by an approved medical practitioner (AMP), that AMP must immediately affirm or discharge the assessment order. To affirm the assessment, order the AMP must be satisfied the patient meets the assessment criteria and that the order has not already been discharged s 32(3). There is no doubt a separate assessment was undertaken by an AMP, Dr LS who was the psychiatric consultant on shift with Dr TT acting as scribe.
2. We find the affirmation of the assessment order was not valid, it was not signed by the AMP who completed the assessment as it should have been, in fact it was not signed at all. Nothing of course turns on this because EQ was discharged on 7 September 2024 at 11:05am and was during the period of his admission EQ was an involuntary patient pursuant to the assessment order which did not expire until 7 September 2024 at 3:45 pm.
3. The fact the assessment order was not affirmed is not a relevant matter for further determination by us because the assessment order had not expired before EQ had been discharged from the assessment order.

1. The making, or the affirmation of, an assessment order does not in itself authorise a restraint of the patient. This is provided for in s 57.

57. Restraint > > (1) Except if authorised under any other law, an involuntary patient who is not a forensic patient may be placed under restraint if, and only if - > > (a) the patient is in an approved assessment centre or approved hospital; and > > (b) the restraint is authorised as being necessary for a prescribed reason by - > > (i) in the case of chemical or mechanical restraint, the Chief Psychiatrist; or > > (ii) in the case of physical restraint where the patient is a child, the Chief Psychiatrist; or > > (iii) in the case of physical restraint where the patient is not a child, the Chief Psychiatrist, a medical practitioner or an approved nurse; and > > (c) the person authorising the restraint is satisfied that it is a reasonable intervention in the circumstances; and > > (d) the restraint lasts for no longer than authorised under this section; and > > (e) the means of restraint employed in the specific case is, in the case of a mechanical restraint, approved in advance by the Chief Psychiatrist; and > > (f) the restraint is managed in accordance with any relevant standing orders or clinical guidelines. > > (2) If an involuntary patient who is not a forensic patient is placed under restraint under this section - > > (a) the patient must be clinically observed by a member of the approved hospital's nursing staff at intervals not exceeding - > > (i) 15 minutes; or > > (ii) such other intervals as the standing orders may mandate; and > > (b) the restraint must not be applied for a period exceeding 3 hours unless - > > (i) the patient has been assessed by a medical practitioner within those 3 hours; and > > (ii) after conducting a physical examination of the patient, a medical practitioner or approved nurse authorises the continuation of the restraint for one specified period not exceeding 3 hours; and > > (c) the patient must be assessed by a medical practitioner at intervals not exceeding 3 hours to see if the restraint should continue or be terminated; and > > (d) the Chief Psychiatrist may impose conditions on the restraint of the patient at any point during the period of restraint for the patient; and > > (e) while restrained, the patient must be provided with - > > (i) suitable clean clothing and bedding; and > > (ii) adequate sustenance; and > > (iii) adequate toilet and sanitary arrangements; and > > (iv) adequate ventilation and light; and > > (v) a means of summoning aid; and > > (f) the administration of any prescribed medications to the patient must not be unreasonably denied or delayed; and > > (g) the patient must not be deprived of - > > (i) physical aids, except as may be strictly necessary for the patient's safety or the preservation of those physical aids for the patient's future use; and > > (ii) communication aids that the patient uses in communicating on a daily basis, except as may be strictly necessary for the patient's safety or the preservation of the communication aids for the patient's future use; and > > (h) regardless of authorisation, the restraint - > > (i) if the restraint is a chemical restraint, must not be administered with the intention that the patient be restrained by the chemical restraint for more than 6 hours; and > > (ii) if the restraint is not a chemical restraint, must not exceed 6 hours; and > > (iii) must not be maintained to the obvious detriment of the patient's mental or physical health. > > (3) Nothing in this section is to be taken as conferring any kind of authority for a patient to be placed under restraint as a means of punishment or for reasons of administrative or staff convenience. > > (4) However, nothing in this section applies to or prevents the emergency short-term physical restraint of a patient, subject to and in accordance with relevant standing orders or clinical guidelines, so as to - > > (a) prevent the patient from harming himself or herself or others; or > > (b) prevent the patient from damaging, or interfering with the operation of, a facility or any equipment; or > > (c) break up a dispute or affray involving the patient; or > > (d) ensure, if he or she is uncooperative, the patient's movement to or attendance at any place for a lawful purpose. > > (5) Notwithstanding the discretionary nature of the power under section 152(1), the Chief Psychiatrist must ensure that standing orders are issued for this section. > > (5A) Consecutive periods of restraint under this section, in respect of an involuntary patient, are only to occur in accordance with the standing orders issued for this section. > > (6) In this section - > > prescribed reason, for placing a patient under restraint, means - > > (a) to facilitate the patient's treatment; or > > (b) to ensure the patient's health or safety; or > > (c) to ensure the safety of other persons; or > > (d) to effect the patient's transfer to another facility, whether in this State or elsewhere.

2. Section 3 of the Act defines chemical restraint, mechanical restraint, physical restraint and restraint:

chemical restraint means medication given primarily to control a person's behaviour, not to treat a mental illness or physical condition; > > mechanical restraint means a device that controls a person's freedom of movement; > > physical restraint means bodily force that controls a person's freedom of movement; > > restraint means any form of chemical, mechanical or physical restraint;

1. EQ gave evidence that he was subject to unlawful chemical, mechanical, physical restraint including by ligature during the Code Black event and he suggested that this occurred sometime after 6:00pm on 6 September 2024. EQ however conceded that he did not see a ligature around his neck and that it was possible that what had been tight around his neck was likely to do with the hood of his hoodie and the tie in his hoodie.
2. EQ disagrees with the documented commencement time of the Code Black at 6:22pm. EQ submitted the documents had been tampered with because some medical practitioners involved in EQ's care had used a 24-hour clock while others had used a 12-hour clock. EQ formed a view that the Code Black commenced at 4:22pm and finished at 18:55, suggesting the Code Black occurred for 2 hours and 33 minutes.
3. Mr Gates led evidence from members of the treating team involved in EQ's care.
4. CI reported EQ was pacing and walking around the department via the x-ray area and towards the waiting room doors with security guard. As CI stood at the exit door, EQ attempted to exit then engaged CI in a headlock. CI reported that EQ was behaving aggressively and violently towards him. A four-person security team held the patient until the code black team arrived. CI's oral evidence was that EQ was heading towards the exit and CI said, "Sorry, you are under an order, you cannot leave the hospital." CI reports that EQ responded by trying to push CI and then placed him in a headlock. The security guard that was following EQ attempted to de-escalate the situation and hold EQ while they waited for the CBRT.
5. The statement completed by KC who was a Registered Nurse working in the Emergency Department detailed that EQ was escorted by security on a walk to the bathroom, but that EQ tried to abscond from the approved facility and that an Emergency Support Officer (ESO), CI, was placed into a headlock by EQ.
6. EQ disputed the evidence of both CI and KC noting his evidence, in response to a question as to whether he was trying to harm or intended to harm people, "if I wanted to do that, I would have already done it".
7. Dr CC, who is not a delegate of the Chief Psychiatrist, gave the following evidence:

I empathise that this was likely a very distressing event, however, we have utilised medication that is commonly used by the Emergency Department and there is lots of medical evidence that this is the safest form of sedation for him and yes, he has been placed in soft restraints, however, on his back is the way that is safest medically for him to be placed while chemical sedation is giving to him in order that his behaviour may be settled and those restraints have been removed as soon as possible to be protected him and the staff.

8. Dr CC detailed that significant time had been spent by THS to understand how to operationalise each of the requirements of the Act and make them functional within a clinical environment. Using EQ as an example, Dr CC asserted that when a person is placed under a mental health order and in a very rapid period of time attempts to leave the Emergency Department and assaults a member of security staff; it is very difficult to operationalise obtaining approval for restraint from those authorised to approve restraint from outside of the Emergency Department within a very short time frame.
9. Dr CC commented:

So there's actually been multiple approaches to try and improve documentation and decision-making in these acute settings. One thing that has helped us from a big picture point of view is that amendment to the Mental Health Act that precludes the co-utilisation the Guardianship and the Mental Health Act has been removed and there's been some clarity around the Guardianship Act around what we can and can't do under its espouses.

We also have the Mental Health Act to hold people and there is the Guardianship Act as well. Even now after extended periods of time there is an unclear interaction between the Guardianship Act and how we would normally utilise it.

11. Dr CC gave evidence that following the events of EQ's restraint, and the events which led to the determination in EDT v State of Tasmania (Review Proceedings - Own Motion) [2024] TASCAT 190 and the events of EQ's restraint, there has been an internal review within the THS.
12. Dr CC reports as result of that internal review there is now a restraint register to clarify who has delegation in relation to authorising chemical and mechanical restraint. Dr CC advised that there has also been implemented a decision-making flow chart that walks through the interactions between the differing legislation together with the implementation of a protocol system known as a Code Grey. Dr CC reported a Code Grey is a violent and aggressive patient protocol that deals with escalation and de-escalation with the intention of avoiding reaching a Code Black scenario.

1. Mr Gates submitted, there were significant events that occurred during EQ's detention at the approved facility that EQ does not recall and admits to not recalling. Therefore, his evidence in relation to the timing of events and the precise nature of events that occurred may be unreliable.
2. It was further submitted by Mr Gates that in the event that EQ's evidence and his account of the timing and nature of events which occurred during the 24 hours during his detention differs from the evidence of the treating team and the documentary evidence, that the Tribunal ought to prefer the evidence of the members of the treating team and the documentary evidence generally. Mr Meehan also made similar submissions on behalf of NE.
3. We accept the documentary evidence as to the timings of events as the correct timings of those events. In addition, we accept the evidence of the medical staff both oral and written as to the timing of events. We do not accept the submission by EQ that THS staff doctored or falsified any documents relating to EQ.
4. Given the documentary evidence before us EQ's recall of the significant events which occurred from the commencement of EQ's detention for assessment until the conclusion of the Code Black is impaired. Where EQ's evidence differs from documentary evidence or from the oral evidence of THS employees we prefer that evidence as the timing of events and the precise nature of events.

1. As EQ was an involuntary patient during the period he was at the approved facility, the Act provided authority for him to be, detained, assessed. Further, during that period, those engaged in treating EQ could rely upon other authorities provided under the Act for involuntary patients such as to engage in urgent circumstances treatment and/or restraint as long as those actions were done under the authority of the Act.
2. The Tribunal's jurisdiction in this matter does not extend to determining whether actions taken to treat EQ were medically necessary or otherwise lawful. The Tribunal's role is to decide whether such actions were carried out under the authority of the Act. It is our conclusion that with the exception of the period of the chemical and mechanical restraint those actions were lawful.
3. What can be done however, as a result of our oversight role, and in an attempt to minimise the likelihood of further recurrences of patients being restrained without authority is to make certain recommendations which are permitted by s 194 of the Act.
4. The Tribunal has in the matters of EDT v State of Tasmania (Review Proceedings - Own Motion) [2024] TASCAT 190, SBC (Review of Assessment Order) [2024] TASCAT 53, and BD (Review of Assessment Orders) [2024] TASCAT 66 taken a similar approach. We have therefore determined that it is within our discretion to make such recommendations in the orders as outlined below.
5. The recommendations set out below are made in an attempt to cure instances of mandatory prescribed documentation for detaining and assessment, urgent circumstances treatment, affirmation of assessment orders not being completed with the necessary due care and attention and involuntary patients being restrained without proper authorisation.
6. Finally, it is also apparent given the comments made by Dr CC at [79]-[80] there may be a misunderstanding by some medical practitioners in relation to the operation of the Guardianship and Administration Act 1995 and involuntary treatment for mental illness. There have been no legislative changes to the Mental Health Act, to any corresponding legislation or to the Guardianship and Administration Act 1995 which in any way alters the pathway for consent for mental health treatment in Tasmania and it is concerning that there a medical practitioners engaged with THS who believe otherwise.

(a) whether deliberately or unconsciously, EQ sought to minimise his involvement or the extent of his engagement in certain events, particularly around the events leading up to Code Black and the nature of the events that led to his initial detention;

(b) that during the Code Black event and in the immediate aftermath that EQ was subjected to physical, mechanical and Chemical restraint;

(c) the suggestion that THS medical officers or staff would use a ligature to strangle someone as part of a physical restraint is a serious allegation;

(d) that given the concessions made by EQ under cross examination the Tribunal ought not be satisfied that there was a strangulation by ligature applying the standard set out in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336;

(e) that the physical restraint of EQ during the Code Black was not unlawful relying on the provisions of s 57(4) of the Act because what occurred was emergency short term physical restraint of EQ to prevent him from harming himself or others in accordance with the relevant standing orders and clinical guidelines;

(f) chemical and mechanical restraint could be authorised pre-emptively within the constraints of the standing orders and the clinical guidelines issued by the Chief Psychiatrist;

(g) if restraint can only be utilised after the Chief Psychiatrist or their delegate has provided authority for that occasion of use, it raises a question whether or not the Act is appropriate to respond to the serious and very fast moving circumstances that occur within the THS; referring to circumstances where patients can shift from being manageable to being a threat to staff in a short timeframe in which case, authority may not be able to be obtained promptly;

(h) the accounts from staff of EQ actively exerting physical force towards staff, where they perceived themselves to be at serious threat from EQ should be accepted;

(i) that the physical restraint of EQ was insufficient to deal with the threat EQ posed to staff and to ensure the safety of the health and safety of the employees at the facility it was appropriate additional measures were taken;

(j) that the appropriate action was chemical restraint and mechanical restraint because those measures would prevent ongoing risk to the health and safety of staff;

(k) that in respect of EQ being restrained, to the extent that EQ gave evidence as to the timing of certain events during his detention, and to the extent that evidence is at odds with the times recorded in the contemporaneous notes taken by medical professionals, that the Tribunal should prefer the times in the contemporaneous records for the following reasons;

(l) documentary evidence confirms that EQ was not administered with medication until after the Code Black incident had commenced;

(m) that the reason for administration of medication or detention was for the purposes of controlling EQ behaviour to reduce the risk that he was posing to himself and others;

(n) that on one reading of s 57(1) it is necessary for the Chief Psychiatrist or a delegate of the Chief Psychiatrist to authorise chemical and mechanical restraint on each occasion in which it is used;

(o) however an alternative reading of s 57(1) is that the Chief Psychiatrist can authorise the administering of a mechanical or chemical restraint pre-emptively within the confines of the standing orders and the clinical guidelines issued by the Chief Psychiatrist having regard to what the chemical and mechanical restraint are used for and the practical realities in which the need for the application is likely to arise;

(p) that if chemical and mechanical restraint can only be utilised after the Chief Psychiatrist or the delegate of the Chief Psychiatrist has provided authority for that occasion of use, it raises a question about whether or not the Act is appropriate to respond to serious and fast moving circumstances that can arise within the mental health sector of the THS in that patients can go from being easy to manage to not being easy to manage in a short space of time resulting in threats being posed to staff to becoming a serious threat to frontline staff within the THS very quickly and then a timeframe within which obtaining authority from the Chief Psychiatrist to authorise mechanical and chemical restraint cannot be obtained;

(q) that s 57(4) provides an exception for emergency circumstances which authorises physical restraint in the circumstances in which s 57(4) applies;

(r) that the legislators were aware of the possibility that the approval regime or the authorisation regime under the Act may not necessarily be able to be complied with in an emerging urgent circumstance given the imperatives of the circumstances that present. Hence the reason that s 57(4) was enacted;

(s) however, that what s 57(4) does not deal with are circumstances when physical restraint is insufficient to deal with emerging urgent circumstances that present in an urgent care setting in an approved facility;

(t) further that s 57(1)(b) does not require that approval is to be given by the Chief Psychiatrist on each and every occasion of chemical, and mechanical restraint, and therefore it permits the Chief Psychiatrist to authorise such restraints pre-emptively in certain circumstances; and

(u) in the alternate that pursuant to s 57(1) where it states "except if authorised under any other law" then relying upon the provisions of the Work Health and Safety Act 2012 policy, of duties on employers to provide safe systems of work and to appropriately address and mitigate risks and hazards in the workplace for which there are significant offence provisions and that those duties are to be read in conjunction with the long standing common law doctrines of necessity in emergency which have developed over centuries to deal with precisely the circumstances where urgent necessities arise that require action which sit outside of what is normally anticipated or can be properly planned for within statutory timeframes.

1. All parties agree that a Code Black occurred and that during that event and in the immediate aftermath of that event, EQ was subject to physical, mechanical, and chemical restraint. For such restraint to have been lawful the provisions of s 57 must be complied with.
2. EQ argues that for a period between 6:22pm and 7:45pm that he was subject to chemical restraint, physical restraint and mechanical restraint without authority under the Act.
3. Section 57(1)(a) was satisfied as EQ was at an approved facility. However, what must be determined is whether the provision of s 57(1)(b)(i) and (iii), (c), (d), (e) and (f) were complied with as were the provisions of s 57(2) and s 58.
4. Dr CC concedes in his oral evidence that neither the Chief Psychiatrist nor a delegate of the Chief Psychiatrist authorised a physical, mechanical or chemical restraint of EQ on 6 September 2024.
5. Mr Gates argues that pursuant to s 57 restraint is approved pre-emptively by the Chief Psychiatrist or his delegate and that it is does not have to be approved on each occasion it is employed to restrict a patient.
6. As a matter of statutory interpretation, we do not accept the submissions on behalf of the THS that the meaning and intent of s 57 of the Act is to approve restraint pre-emptively.
7. The directive principles of statutory interpretation were summarised by her Honour Wood J in the matter of Motor Accidents Insurance Board v Churchman [2020] TASSC 6 at [8]- [9]:

The question of the meaning of s 28B(2)(b) [of the Motor Accidents (Liabilities and Compensation) Act 1973] is to be determined by reference to basic principles of statutory interpretation. These principles are well-established: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]-[70]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41, 239 CLR 27at [46]- [47]; Certain Lloyd's Underwriters v Cross [2012] HCA 56, 248 CLR 378 at [23]- [32], [68]-[70], [88]-[89]. The task of ascertaining the meaning of the section should begin with a consideration of the words of the statute and their grammatical meaning. It is necessary to decide the legal meaning of the relevant provision by reference to the language of the statute viewed as a whole. The task may require consideration of the context, including the general purpose and policy of a provision and the mischief it is seeking to remedy. Section 8A of the Acts Interpretation Act 1931 requires an interpretation that promotes the purpose or object of the legislation to be preferred to one that does not. > > Resort to materials outside the statute is legitimate for the purpose of identifying the policy of the statute in order to better understand the language and intended operation of the statute. Section 8B of the Acts Interpretation Act permits resort to extrinsic materials to illuminate meaning in cases where the ordinary meaning is not clear or causes absurd or unreasonable results.

8. The Act regulates how mental health services are delivered to ensure they align with human rights principles, safeguarding that treatment is appropriate and that patients are aware of their rights.
9. The Clause Notes for s 57 of the Act which are to be read in conjunction with the Act, signify the intention of parliament in relation to s 57:

The intention of the clause is to ensure that a patient is placed under restraint only when this is considered necessary and appropriate in all the circumstances. This is consistent with national and international approaches to restraint which require a person to be placed under restraint as a last resort, given the highly restrictive and serious nature of the practice. This is also consistent with the Act's Objects, component (d) of which is to provide for the assessment, treatment and care of persons with mental illnesses to be given in the least restrictive setting consistent with clinical need, legal and judicial constraints, public safety and patient health, safety and welfare and mental health service delivery principle (b) which is 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. > > In relation to chemical restraint the intention is to ensure that a person subject to an Assessment Order or Treatment Order may only be chemically restrained, as this term is defined in clause 3, in certain narrow circumstances and when specifically authorised, and that the use of chemical restraint in these circumstances is transparent, is regulated, and is oversighted.

10. The suggested interpretation of s 57 by Mr Gates does not promote the purpose of the legislation, is contrary to the mental health service delivery principles in schedule 1, the objects of the Act in s 12 and the rights of patients outlined in s 15A of the Act.
11. Nor do we accept the suggestion by Mr Gates that obligations under the Work Health and Safety Act 2012 can override the obligations under the Act
12. As is evidenced in the documentation, Droperidol was administered to EQ. It is an anti-psychotic medication. The unequivocal evidence of Dr CC was that Droperidol was used to control EQ's behaviour, not as part of his treatment for his mental illness, such evidence making it clear the medication was used as a chemical restraint for which approval had not been obtained by the Chief Psychiatrist or their delegate. We therefore find that EQ was provided chemical restraint without lawful authorisation.
13. As to the physical restraint we accept that such action was taken under the authority of s 57(4) (a) and (c) of the Act and was therefore lawful. THS staff gave evidence there was a need to prevent harm to EQ and also to others given his actions which led to the Code Black and the dispute that ensued when EQ attempted to leave the hospital.
14. We are however not sufficiently persuaded given the evidence before us and the concessions made by EQ at [71] that there was any attempt to physically restrain EQ by ligature.
15. Given the evidence before us, including the definitive evidence of Dr CC, we are able to make a positive finding that EQ was chemically and mechanically restrained without authority.
16. The action to mechanically and chemically restrain EQ without authority amounts to a serious breach of the provisions of the Act, the rights of patients detailed in s 15A(1)(b) of the Act and in a particular in accordance with Mental Health Service Delivery Principles and the provisions relating to the use of restraint (s 57). Such breaches were as a direct result of lack of understanding of s 57 of the Act by those who were involved in the care of EQ.
17. Concerningly, that there was no appropriate authority to chemically and mechanically restrain EQ is only part of the failure on the part of the THS.
18. Section 57(2) of the Act outlines the supervision, observation and, broadly speaking, care requirements for a patient who is subject to restraint. Section 58 provides that where a restraint occurs the person authorising that restraint must keep appropriate records.
19. There is no evidence before us that when the restraint occurred there was any attempt at compliance with s 57(2). Had those entrusted with the care of EQ had an appropriate appreciation of the provisions of s 57 of the Act, and thought the restraint was pre-emptively approved as was submitted by counsel for the THS, then it follows that there ought to have been compliance with the supervision and care requirements in s 57(2) of the Act. However, we were provided with no evidence this was the case.
20. We consider that the failure to provide such evidence, with all of the surrounding circumstances previously outlined, allows us to comfortably draw the inference that on balance of probabilities the requirements of s 57(2) of the Act were not observed. This is of significant concern: see Jones v Dunkel [1959] HCA 8.
21. No records in accordance with s 58 were provided to the Tribunal. In the case of the physical restraint, which was appropriately authorised, this is inexplicable. Whilst we note that the provisions of s 58 place an obligation on the authoriser of the restraint, and we have found that there was no authoriser for the mechanical and chemical restraint of EQ, that there were no records provided to the Tribunal created by any party is troubling. For the same reasons we outline in [112] we may comfortably draw the conclusion that no records were kept in relation to the restraints imposed on EQ, which is a significant breach of the Act and failure in the care of EQ. The record keeping provisions of the Act allow for appropriate oversight by the Tribunal, and a failure in those obligations hinders the Tribunal's ability to ensure the rights and safety of patients are upheld.
22. Noting that EQ was discharged on 7 September 2024 at 11:05am and has not been the subject of any further detention, assessment or restraint, there is little value in the Tribunal making any orders relating to the restraint, the subject of the review filed by EQ as the restraint is no longer in effect.

1. Pursuant to our reasoning above, we make the following orders:
   1. We affirm the Detaining for Assessment made on 6 September 2024 pursuant to s 193(b)(i) of the Act.
   2. We affirm the assessment order made on 6 September 2024 pursuant to s 180(d) of the Act.
   3. We affirm the use of physical restraint made on 6 September 2024 pursuant to s 187(d)(i) of the Act.
   4. We make the following recommendations pursuant to s 194(e) of the Mental Health Act 2013 (Tas):
      1. That education and training as to:
         1. the importance of accurate completion and signing of documentation required under the Act; and
         2. the requirement for approved medical practitioners to authorise Urgent Circumstances Treatment; and
         3. the requirement for authorisation of restraint to be in accordance with the provisions of s 57 of the Act;

1. Medical and health practitioners employed by the Tasmanian Health Service, and particularly those working in the Department of Emergency Medicine; and
2. Approved medical practitioners.

1. Such education and training should underline the need for accuracy and completeness of prescribed documents and that restraint must only occur in accordance with the provisions of the Mental Health Act 2013.
2. These recommendations are directed to the following:
   1. The Secretary of the Department of Health in capacity as both Secretary (clause 1(g) of Part 1 in Schedule 4 of the Act) and the controlling authority of the facility in which EQ was accommodated (clause 1(e) of Part 1 in Schedule 4 of the Act); and
   2. The Chief Psychiatrist.