Held, granting leave and affirming the decision under review:

• Where the Tribunal relies on second-hand, or even more remote, reports of events to form a conclusion about risk, it will entail an assessment of whether the evidence is sufficiently reliable to inform that conclusion.
• The evidence before the Tribunal in the original jurisdiction, being records of untested third-party accounts of events, was insufficient to form a view as to whether any of the particular incidents occurred.
• It is reasonable to infer a risk of harm even if none of the specific allegations were established, as the treating doctor was able to form a view as to the existence of a risk of harm based on the frequency and nature of the allegations of altercations with others and the applicant's own account of anger outbursts;
• The Tribunal must avoid reasoning in a circular fashion by inferring from a person's reluctance to accept medical advice as to the suitability of particular treatment for the person's illness, that the person is mentally ill;
• The Tribunal in the original proceedings correctly found that as a result of the illness the applicant is at risk of harm to himself, such harm being the cumulative effects of untreated psychosis;
• The applicant's ability to assess information available to him regarding treatment for his illness is impaired; it is not the fact that he evaluates costs and benefits and arrives at a different conclusion but that he does not engage in the evaluation process that demonstrates the impairment.

Internal Review - Mental Health - Level 2 Community Treatment Order - Protection from harm - Definition or scope of harm - Harm to others

Internal Review - Mental Health - Level 2 Community Treatment Order - Impaired Decision Making Capacity - Ability to make appropriate decisions regarding treatment

South Australian Civil and Administrative Tribunal Act 2013 s 70

Mental Health Act 2009 ss 6, 7, 16, 18

GKK v Department of Health and Ageing [2018] SACAT 30

Mr A Bickle, Legal Services Commission, appeared for the applicant

Ms S Kane, Crown Solicitor's Office, appeared for the respondent

This is an edited version of the Tribunal's decision pursuant to

s 60 of the South Australian Civil and Administrative Tribunal Act 2013. The parties and participants of the proceedings have been de-identified in accordance with the Tribunal's anonymisation policy. Other facts and details that may lead to the identification of any person may have also been anonymised or omitted. These changes do not affect the Tribunal's decision or its reasons for decision.

Made under the South Australian Civil and Administrative Tribunal Act 2013 s 70(6)(a)

1. This decision concerns an application by EVX. He seeks a review of a decision of the Tribunal dated 27 October 2022. In that decision, a Member of the Tribunal ordered that the applicant be subject to a Level 2 Community Treatment Order (CTO) under the Mental Health Act 2009 (MHA). The order authorises treatment to be administered irrespective of whether the treatment is consented to or not. The authorised treatment is treatment of a kind authorised by a psychiatrist or authorised medical practitioner who has examined the person.[1] The "level" of the CTO indicates the length for which it may be issued. A Level 2 CTO may be in place for up to 12 months.[2]
2. The applicant has exercised his right under s 70 of the South Australian Civil and Administrative Tribunal Act 2013 (SACAT Act) to have that decision reviewed by different Members of the Tribunal. On review, the Tribunal must consider the application that was originally made and make the correct or preferable decision taking into account the evidence available at the original hearing. The Tribunal on review must give appropriate weight to the original decision and take into account any other evidence which is relevant and appropriate to be taken into account as part of the review process.
3. The applicant is represented by Mr Bickle of the Legal Services Commission. The respondent is the Department for Health and Wellbeing, represented by the Crown Solicitor.
4. The applicant is 63 years old. He lives with his elderly mother. He says that until about six months ago, he worked casually as a renderer in the construction industry. He continues to be supported by a disability support pension. His treating doctor within the Eastern Community Mental Health team, Dr Ramsey, has prescribed 350mg Paliperidone administered by depot injection each 12 weeks.
5. The applicant says that the medication causes him to sleep most of the day and that he rarely leaves the house. However, recently he has been advised of an entitlement to some support through the NDIS which means that some home assistance and social activities may be arranged for him. He welcomes this.

1. The original decision followed an oral hearing conducted by telephone. The application was made by Dr Ramsey. The applicant participated in the hearing. At the end of the hearing, the Tribunal Member announced her decision and gave brief reasons. She then issued written orders the same day. The order authorised the applicant to be treated in the community, if necessary against his will, with medication described in a treatment and care plan.

1. The Tribunal has considered the helpful and carefully prepared written submissions by the parties' representatives.
2. The applicant seeks to have the Tribunal on review consider the Invega Trinza and the Abilify Maintena Consumer Medicine Information leaflets. It would not be unreasonable for the Tribunal to be cautious about how it might take such evidence into account given that it has not been tendered through an expert. However, the Tribunal is constituted by a legal member and a psychiatrist. Given that the information is designed in any event for public consumption, the Tribunal considers that it can properly receive this evidence for the purpose of noting the side-effects they describe from these medications, both of which include the tremor the applicant experiences, and fatigue.
3. The respondent sought to have an updated medical report considered. The report is by Dr Ramsey and is dated 14 December 2022. The report makes no new diagnosis. It is a half-page document that describes the doctor's understanding of how the applicant responded to the treatment team's approach to him to administer his medication in November 2022. In light of the obligation on the Tribunal to reach the correct or preferable decision on all of the relevant evidence, the Tribunal will receive this report and take it into account.
4. The primary additional evidence that the report provides to the Tribunal is that in November 2022, the applicant initially refused to submit to the administration of the depot medication, but submitted to the administration upon being told that he could seek a review of the decision under which it was imposed.

1. When making a Level 2 CTO, the Tribunal must be satisfied that the criteria set out in

s 16(1) of the Mental Health Act 2009 (MHA) are satisfied. Section 16(1) of that Act states as follows:

(a) a person has a mental illness; and > > (b) because of the mental illness, the person requires treatment for the person's own protection from harm (whether physical or mental, and including harm involved in the continuation or deterioration of the person's condition) or for the protection of others from harm; and > > (c) the person has impaired decision-making capacity relating to appropriate treatment of the person's mental illness; and > > (d) there is no less restrictive means than a community treatment order of ensuring appropriate treatment of the person's illness,

the Tribunal may make an order for the treatment of the person (a level 2 community treatment order).

2. In considering EVX's application, the Tribunal in the earlier proceedings correctly identified that it was required to consider those elements separately in order to reach a conclusion as to whether an order should be made.
3. In making our decision, we have repeated that process, including bearing in mind the guiding principles in the MHA which are stated in ss 6 and 7. In particular, we refer to the following principles extracted from s 7:

• (1) The Minister, the Tribunal, the Chief Psychiatrist, health professionals and other persons and bodies involved in the administration of this Act are to be guided by the following principles in the performance of their functions:

(a) mental health services should be designed to bring about the best therapeutic outcomes for patients, and, as far as possible, their recovery and participation in community life; > > ...

(b) mental health services should be provided on a voluntary basis as far as possible, and otherwise in the least restrictive way and in the least restrictive environment that is consistent with their efficacy and public safety, and at places as near as practicable to where the patients, or their families or other carers or supporters, reside;

1. We will consider those issues afresh, with a focus upon those that the applicant submits were answered wrongly by the Tribunal in the original hearing.

1. In the original hearing, the Tribunal Member had a medical report from the applicant, Dr Ramsey, describing the following medical history:

Schizophrenia, paranoid subtype > > - He has been diagnosed with schizophrenia in his 20s. > > - He has had 4 psychiatric admissions for relapse of his illness due to erratic/non-compliance, each with separate consultant psychiatrists confirming the diagnosis, alongside his previous private, and current community psychiatrist (Dr Stephan Leslie, Dr Richard Allison, Dr Sandip Kulkarnie, Dr Jacob Alexander, Dr Catherine Ye) > > illness complicated by > > - predominately by poor insight, and non-compliance with oral medications facilitating relapses, and previous need for CTO management > > - complex family dynamics mother > > mother shares delusional belief systems of [EVX] being poisoned by mafia > > - there has not been recent evidence to suggest illicit contribution although there has been developmental/early abuse > > when unwell > > - paranoia of mafia poisoning him (chronic, elevated and affective challenge when acute) > > - paranoia around MHS and punishment / persecution > > - would express prominent persecutory themes relating to the Public Trustee and circumstances around his sister's death > > - persecutory and referential delusions, being monitored by police, strangers commenting on him, paranoid about the mafia who he believes had been trying to poison him since age 19yo > > - disorganised, poor self care > > - thought disordered > > - responding to perceptual disturbances/AH > > - becomes agitated

2. The Tribunal in the original hearing also heard the following oral evidence from Dr Ramsey:

[EVX] has a diagnosis of schizophrenia and then he was diagnosed in 1993 at the age of 27 years. Just he has been diagnosed by multiple different consulting psychiatrists over the years in in-patient and out-patient settings including Dr Lesley, Dr Allison, Dr Kilkenny, Dr Alexander and Dr Yee. When unwell, [EVX] experiences psychosis characterised by thought disorganisation, persecutory delusions including the beliefs that he has been poisoned by the Mafia, he is being targeted by the Public Trustee and some circumstances [audio unclear]. As a result of his psychosis during these periods, his [audio unclear] is elevated with affected disturbance, agitated and aggressive and often becomes agitated and requires closed wards for management in an in-patient hospital.[3]

3. The more recent medical report filed since the hearing did not add to the evidence of diagnosis but reported that the applicant was reluctant to be treated under the order when the treatment team visited him in November 2022. The police were called upon to attend.
4. The applicant disputes the diagnosis of schizophrenia. He has not provided a medical opinion to support his doubt as to the correctness of the diagnosis and does not wish to make any further submission about this, except to say that he accepts that he sometimes gets angry about particular things or events and some of those incidents of anger on his part have been followed by hospital admissions.
5. The applicant has been admitted to hospital on approximately 12 occasions between 1989 and the present day, with most admissions lasting two to four weeks. His account of his history of admissions is that they have occurred after he has become angry because of some wrong done to him. It is the Tribunal's view that this account demonstrates a lack of insight into his illness and a refusal to accept that angry outbursts cannot explain so many admissions for such extended periods.
6. Dr Ramsey is his current treating doctor but had only treated him for two months prior to making the application for the Level 2 CTO. Dr Ramsey has necessarily relied upon the records of other treating practitioners to assist him to form his clinical views as to the appropriate diagnosis and recommended treatment.
7. The question for the Tribunal on review is only whether EVX has a mental illness, and not whether the particular diagnosis is the correct or preferable diagnosis. The Tribunal is constituted by a legal member and a psychiatrist member. Having reviewed the medical evidence, the Tribunal is satisfied that the applicant has a mental illness. It is the best explanation for the applicant's behaviour and thoughts over an extended period. The behaviour and thoughts are consistent with well-established patterns associated with mental illness generally and schizophrenia particularly. The behaviour and thought patterns are not consistent with merely idiosyncratic behaviour and thoughts in the range of functional mental health. We note that in the applicant's case, the diagnosis of schizophrenia is long-standing and has been independently confirmed by numerous psychiatrists, each of whom is required to bring their own professional experience and judgement to the question of whether the diagnosis is the most appropriate having regard to the records and the patient's presentation before them.

Does the applicant require treatment for the protection of others from harm or for his own protection from harm?

1. The applicant contends that, irrespective of whether he experiences mental illness or not, he does not require treatment for his own protection from harm, or for the protection of others.

1. The Tribunal Member in the original proceedings was satisfied that there was a history of aggression by him towards his mother[4] and making threats of harm,[5] and that he threatened to purchase or acquire firearms and use them against his family.[6] The Tribunal concluded that treatment was required to protect others from the harm he may cause them when unwell.
2. The applicant contends that the factual conclusions reached by the Tribunal in the original hearing, which were based on Dr Ramsey's oral evidence and the documentary evidence, were not sufficiently established to have been found to have occurred. The Department's representative maintained that it was reasonable for the Tribunal Member to reach those conclusions on the evidence.
3. The Tribunal observes that it would be undesirable for proceedings such as the original proceedings to become diverted by inquiries into collateral factual disputes as to whether a person's behaviour amounted to a threat, or an assault, or in this case whether the applicant recorded vehicle plate details or threatened family members. In GKK v Department of Health and Ageing,[7] the Tribunal, constituted by Senior Member Rugless, Senior Member McEvoy and Dr Skinner, said:

27. We consider that the degree of satisfaction required in such proceedings is that which enables the Tribunal to be satisfied to make the correct or preferable decision. We consider it to be helpful, when assessing whether it is satisfied to make the correct or preferable decision, for the Tribunal to be guided by the degree of satisfaction required by the civil standard of proof of 'satisfaction on the balance of probabilities'. Further, whilst there is authority for the proposition that in Tribunal proceedings, where the rules of evidence do not apply, the Tribunal is not bound to apply the "Briginshaw principle", we observe that, given the significant incursion into the rights and liberties of the subject person when making compulsory treatment orders under the Act, the Tribunal needs to have a reasonable or comfortable degree of satisfaction about the existence of the criteria to enable it to make the order. This would require the Tribunal, in our view, to have before it sound, clear and logical evidence about each of the criteria, including well-presented expert opinion evidence from appropriately qualified professionals. This level of satisfaction is not likely to be reached based on inadequate, vague or uncertain evidence. > > ... > > 29. When forming an opinion about a diagnosis of mental illness (and about the existence of the evidence to support the criteria for the making of an order), medical practitioners conduct examinations of the person, refer to hospital notes regarding entries by nurses, confer with colleagues and refer to the notes of colleagues who have conducted prior assessments or made observations. > > 30. Medical practitioners also routinely rely on factual information from third parties regarding the person's past statements and behaviour, often referred to as "collateral information". This is usually information obtained from personnel from community treatment teams, police officers and paramedics, neighbours, and the family and friends of the patient. All of this information assists the practitioner to form a diagnosis and to reach a decision as to whether there is a proper basis to make an order themselves (for example a level 1 CTO under s 10 of the Act), or to make an application to the Tribunal for an order. It would be inappropriate and artificial in this context to suggest that the strict rules of proof should be applied by the practitioner, or by the Tribunal, when reaching a decision about the sufficiency of the evidence to support the criteria for the making of an order. The suggestion that no "untested hearsay evidence" could be relied upon by a doctor in a hospital context, or admitted and taken into account by the Tribunal, when making orders under the Act fails to recognise the nature of the proceedings, and the manner in which a doctor forms an opinion about a diagnosis and the Tribunal reaches a decision about whether there is a proper basis to make an order. > > 31. However, we agree with Mr Fabbro's submission that, when assessing information from other sources, a common sense and careful evaluation of that information, and the source of that information is appropriate. It would be appropriate to weigh and consider the collateral information against the clinically observed behaviour and statements of the patient in order to assess the cogency of any third hand information. > > 32. We are mindful that compulsory treatment orders have a real impact on the person's freedom and autonomy as they significantly intrude upon the person's rights through ongoing enforced treatment. A degree of appropriate care is required by the Tribunal when relying on third hand information in order to reach conclusions in this setting. (Footnotes omitted)

4. We adopt those remarks.
5. Where a Tribunal Member relies on second-hand, or even more remote, reports of events upon which the Tribunal wishes to rely to form a conclusion about risk, it will entail an assessment of whether the evidence is sufficiently reliable to inform that conclusion. In many cases, it will be the direct evidence of the psychiatrist or other medical practitioner as to their opinion about risk, based on the person's presentation and responses to questions, that will inform the conclusion.
6. The evidence before the Tribunal Member was insufficient to form a view as to whether any of the particular incidents occurred. They were being reported to the Tribunal Member by the doctor as he read from the applicant's patient records made during various hospital admissions. The Tribunal does not consider that Dr Ramsey's evidence has been called into dispute or should be. Nor is there reason to doubt that the records from which he was reading were made in a professional environment by persons with a duty to record accurately. Nonetheless, they are records of untested third-party accounts of events. The Tribunal was not provided with the records themselves and Dr Ramsey was unable to say, from what was in front of him, when the events were said to have occurred.
7. The Tribunal is not satisfied that the Department has established that the original decision was correct insofar as it made a finding that the applicant made a particular threat on a particular occasion. The evidence was insufficient to be satisfied of that. However, Dr Ramsey's evidence was also that, in a more general sense, episodes of psychosis associated with schizophrenia, create a risk of harm to others. It is reasonable to infer that even if none of the specific allegations was established, Dr Ramsey was able to form a view as to the existence of a risk of harm based on the frequency and nature of the allegations of altercations with others and the applicant's own account of having anger outbursts.
8. Thus while the Tribunal is now not satisfied that any one of the specific allegations has an evidentiary base that would allow a finding about that particular allegation, it was open to the Tribunal to accept Dr Ramsey's evidence that the applicant presents a risk of harm to others. That evidence included the observation made in the original proceedings that when the applicant is in psychosis, his aggressive behaviour has required accommodation in locked wards when admitted to hospital in that condition.[8] We accept Dr Ramsey's evidence and find that the applicant presents a risk of harm to others, even though we do not consider that the evidence that was before the Tribunal allows conclusions to be drawn about particular events.

1. In the original proceedings, Dr Ramsey expressed the opinion that if he were to be untreated for psychosis, the applicant would be at risk of harm to himself. The medical evidence about this was compelling. The evidence was that it could reasonably be expected that his cognitive function would become increasingly impaired and that he may become treatment-resistant. This is the professional medical opinion of the doctor that untreated psychosis leads to cognitive impairment. Cognitive impairment is a harm. This evidence was unchallenged.
2. The applicant, through his counsel, argued that the potential harm to himself brought about by not being subject to the order and being unmedicated must be weighed against the harm to himself caused by the side-effects of the medication. The applicant's evidence was that he experiences severe fatigue and a strong tremor in his arm which have led to him isolating from peers and not participating in activities.
3. We accept that he is experiencing these feelings and that his activities are currently restricted. We consider that the applicant is hampered in his ability to disentangle and weigh the separate consequences of his illness on the one hand and the medication on the other because he lacks insight into the nature and extent of the illness. This issue is explored further below.
4. We accept the opinion of Dr Ramsey that the applicant's illness is severe and enduring and that if he remains untreated, his cognitive function will deteriorate and that this will diminish his autonomy and to his ability to make decisions in his day-to-day life, and increase the danger that he presents to others.
5. We consider that the Tribunal in the original proceedings correctly concluded that treatment is required to protect the applicant from the harm to himself that would occur if he were not treated.

Does the applicant have impaired decision-making in relation to appropriate treatment for his illness?

1. The applicant contends that although he has difficulty regulating his emotions, and is sometimes suspicious of others, the evidence does not support the conclusion that his decision-making in relation to appropriate treatment is impaired. He says that the side-effects of the treatment provide a sound basis for his decision to resist the treatment.
2. Mr Bickle submitted that the weight that the applicant places on the side-effects of the medication shows an ability and a willingness to use information and evaluate his situation to arrive at a conclusion, albeit it is a conclusion that others might not reach.
3. We accept that the Tribunal must avoid reasoning in a circular fashion by inferring from a person's reluctance to accept medical advice as to the suitability of particular treatment for the person's illness, that the person is mentally ill. The question for the Tribunal is whether, in relation to treatment, the applicant's decision-making is impaired. We consider that it is. Our conclusion is reached from an acceptance of Dr Ramsey's opinion and from the Tribunal's specialist knowledge of the applicant's illness. That specialist knowledge is derived from the constitution of the Tribunal including a psychiatrist with long-standing clinical experience in treating patients with this illness.
4. Dr Ramsey's oral evidence in the original proceedings was:

So in terms of decision-making capacity, it's been observed that [the applicant] has not been able to integrate and understand multiple different views and opinions from professionals relating to the symptom profile and how that constitutes diagnosis of schizophrenia. In the said ailments, he has been unable to weigh up the benefits and cons of continuing or discontinuing treatment and as a result has consistently had erratic or poor compliance with medications which has resulted in adverse outcomes for him, notably multiple hospital admissions and difficulties with subsequent aggression in the past.

5. We consider that the applicant's ability to assess information available to him regarding treatment for his illness is impaired. The evidence of that impairment is not his preference not to be treated with the medication that he currently receives because of its adverse effects but, as Dr Ramsey observed, his failure to acknowledge that these benefits must be weighed against the benefits of ameliorating other symptoms of the illness. It is not the fact that he evaluates costs and benefits and arrives at a different conclusion but that he does not engage in the evaluation process that demonstrates the impairment.

Is there a less restrictive means than a CTO to ensure appropriate treatment?

1. The parties' submissions did not focus on this issue. The applicant's position is that he has expressed a willingness to accept treatment if it is beneficial. The Department's purpose in submitting the updated medical report of Dr Ramsey was to establish that the applicant is not willing to submit to the medication that is currently recommended.
2. It is not the role of the Tribunal to direct the treating team in relation to what constitutes the appropriate treatment, noting that such a decision is one that depends on an ongoing clinical assessment of the effects of the current treatment. The Tribunal is satisfied that its earlier decision, that a less restrictive mechanism for ensuring treatment than a CTO would not succeed, remains the correct decision. The evidence strongly supports the conclusion that if the applicant were merely recommended the treatment that his treating team considers to be appropriate, he would not adhere to the treatment regime.

1. The Tribunal has considered the applicant's application to set aside the order that he be subject to a Level 2 CTO. Having considered the original decision, his submissions and evidence, and the submissions and evidence of the Department, the Tribunal remains satisfied that the decision is correct and preferable.

1. The Tribunal makes the following order:
   1. The Tribunal affirms the decision under review.

[1] MHA 2009, s 18.

[2] MHA 2009, s 16(5).

[7] [2018] SACAT 30 (18 June 2018).