Mental health - confinement and restraint of mentally ill persons and similar orders - onus and standard of proof - inquisitorial process

South Australian Civil and Administrative Act 2013 ss 8, 39, 53, 60, 70

Mental Health Act 2009 ss 5, 6, 7, 10, 16

South Australian Civil and Administrative Tribunal Rules 2014 r 45

Re AKS [2016] SACAT 19

WCH v Mental Health Tribunal (Human Rights) (Amended) [2016] VCAT 199.

NOM v DPP [2012] VSCA 198

Re LEM [2015] SACAT 18

Sullivan v Civil Aviation Authority [2014] FCAFC 93

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

Mr Fabbro, Elliot Johnston Chambers, for the applicant

Ms Sanders, Crown Solicitor's Office, for the respondent

This is an edited version of the Tribunal's statement of reasons issued pursuant to section 107 of the Mental Health Act 2009. The protected person has been de-identified and allocated a randomly selected pseudonym for privacy reasons. Other details that may lead to the identification of the protected person may have also been anonymised or omitted. These changes do not affect the Tribunal's decision or its reasons for decision.

1. This is the determination of an application for internal review of a Level 2 Community Treatment Order ('Level 2 CTO') in relation to GKK made by the Tribunal in its ordinary jurisdiction on 8 December 2017. The applicant for the internal review is GKK.
2. The review is brought under s 70 of the South Australian Civil and Administrative Tribunal Act 2017 (the SACAT Act). The obligation of the Tribunal on an internal review under s 70 is to arrive at the correct or preferable decision. The Tribunal must give weight to the decision at first instance and on the review must examine the decision of the Tribunal on the evidence and material before the Tribunal at that time but may also allow, as it thinks fit, further evidence or material to be presented to it on the review. The review is a review on the merits and there is no necessity to find any error of law or fact.[1]
3. The application for review of the Level 2 CTO was lodged with the Tribunal by the applicant on 19 January 2018 and was listed for full hearing in May 2018 following a number of adjournments requested by the applicant's counsel.
4. The grounds for review are detailed in the application filed with the Tribunal by the applicant personally. Those grounds are:

"The medication causes an increase in tremors and shakes, significant weight gain, excess saliva and pooling, to the extent that I have to put a towel on the pillow, and restlessness in the legs. The reason there was a delay in filing the internal review was because I wasn't aware that these symptoms were from the Level 1 CTO. I would like the Tribunal to cancel the injections, I would consent to take alternative medication or oral medication if required."[2]

1. Section 70(2) of the SACAT Act requires that an application for internal review must be instituted within one month of the making of the decision to which the application relates. This application was filed a little outside of that time and the Tribunal is satisfied that it is reasonable to dispense with the requirement that the application should be instituted within that period. The Tribunal notes that the respondent took no issue with the review being lodged slightly out of time.

Section 16 of the Mental Health Act

1. The order subject to review was made under s 16 of the Mental Health Act 2009 (the Act). In order for a Level 2 CTO to be properly made, the Tribunal must be satisfied of four criteria prescribed by s 16(1) of the Act. Section 16(1) provides 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).

1. Section 5(a) of the Act is also relevant for the purposes of this internal review, and reads as follows:

(1) A person is, in the absence of evidence or a law of the State to the contrary, to be presumed to have full decision-making capacity in respect of decisions about his or her health care, residential and accommodation arrangements and personal affairs.

(2) For the purposes of this Act, a person will be taken to have impaired decision-making capacity in respect of a particular decision if -

(a) the person is not capable of -

(i) understanding any information that may be relevant to the decision (including information relating to the consequences of making a particular decision); or

(ii) retaining such information; or

(iii) using such information in the course of making the decision; or

(iv) communicating his or her decision in any manner; or

(b) in the case of a person who has given an advance care directive - the person has satisfied any requirement in the advance care directive that sets out when the person is to be considered to have impaired decision-making capacity (however described) in respect of a decision of the relevant kind.

(3) For the purposes of this Act -

(a) a person will not be taken to be incapable of understanding information merely because the person is not able to understand matters of a technical or trivial nature; and

(b) a person will not be taken to be incapable of retaining information merely because the person can only retain the information for a limited time; and

(c) a person may fluctuate between having impaired decision-making capacity and full decision-making capacity; and

(d) a person's decision-making capacity will not be taken to be impaired merely because a decision made by the person results, or may result, in an adverse outcome for the person.

1. Mr Fabbro, for GKK, submitted that the decision to make the Level 2 CTO was not the correct and preferable decision. He advised the Tribunal on the internal review that the applicant does not directly dispute the finding that she has a mental illness or that she needs treatment of some kind for that illness. No contrary medical evidence was adduced on the review to dispute the psychiatric diagnosis. However, the Tribunal notes that GKK's evidence before the Tribunal Member at first instance was that she did not agree with the diagnosis. She considered that she suffered from an anxiety disorder. That position was not altered on the review.
2. Mr Fabbro placed considerable emphasis on the inadequacy of the evidence to satisfy the criteria in s 16(1)(b), in terms of treatment being required for her mental illness to reduce the risk of harm to self or others. He submitted that there was insufficient evidence that there would be a deterioration of GKK's mental condition sufficient to lead to harm to herself (due to a deterioration of her mental illness), or that any potential deterioration of her mental condition would cause serious disruption to the functioning of those around her or would impact adversely on her daughter. The applicant, through counsel, indicated that she was not disputing that she required some form of treatment but the issue was whether an absence of enforced treatment would lead to harm to the applicant or to other persons. The applicant took issue, in particular, with any finding that her mental illness had, or would, cause harm to her 16 year old daughter.
3. He submitted that there was insufficient evidence that GKK had impaired decision-making capacity relating to the appropriate treatment for her mental illness. Mr Fabbro took issue with the evidence of Dr Chaudhary and the finding of the Tribunal that the bringing of GKK's daughter to the hearing demonstrated impaired judgment.
4. The applicant also disputed the finding of the Tribunal that there was no less restrictive means than a Community Treatment Order of ensuring appropriate treatment for GKK's illness. Mr Fabbro submitted that there was no evidence that GKK would not comply with treatment, or that she had ever refused to undergo treatment. He said that his instructions were that she would 'probably' comply with treatment for her mental illness voluntarily if the order were revoked.
5. Mr Fabbro submitted that in all of the circumstances the correct and preferable decision was that the order ought not to have been made and that it should be set aside.

1. Additional affidavit evidence was tendered by the applicant and admitted into evidence on the internal review, the Tribunal having been persuaded that the evidence was of some relevance. The affidavit was sworn by MSY, the 16 year old daughter of the applicant, who had also given evidence at first instance. We considered the affidavit evidence relevant as the evidence of the treating team at first instance, and through submissions on the review, was that a deterioration in the mental state of the applicant had impacted on her daughter in the past (particularly on the daughter's attendance at school and on the number of schools that she had attended) and was likely to do so again in the future if the applicant's illness was left untreated. The inferential evidence presented by the treating team in support of their application was that GKK's mental illness, particularly the paranoid delusional aspects of her mental illness, had in some way had an impact on the family's interactions with various school personnel and had had a subsequent deleterious impact on MSY's schooling. This was submitted by the treating team as evidence to support the opinion that GKK's mental illness, if left untreated, would potentially result in harm to her daughter.[3]
2. The affidavit indicates that MSY had voluntarily sworn the affidavit. In paragraph 5 of the affidavit MSY states that she was present at the first Tribunal hearing but that she was "upset at the time" and could not remember what she had said.
3. The affidavit goes on to detail evidence in relation to MSY's attendance at certain schools, that she was now in her second high school (currently in year 11), that prior to that she had been in year 7 and 8 in one school and before that had attended five separate primary schools. On page 7 of the affidavit GKK's daughter sets out the reasons why she left all of the different schools, none of which were said to be due to the involvement or illness of her mother. In her affidavit the daughter states that her mother put no pressure on her to change schools and in fact encouraged her to go to school. She states that her mother had never stopped her from going to school and she concludes with a statement that her mother is "a really good mum".

1. The respondent's counsel, Ms Sanders, made brief submissions on the review and did not elect to file any responding evidence to the affidavit evidence filed by the applicant or to adduce any further updated medical evidence as to the need for an order. The respondent argued that the relevant criteria had been established and that the decision to make a Level 2 CTO was the correct or preferable decision and the order should be affirmed.

Onus and standard of proof in mental health hearings

1. Before considering the evidence and addressing the submissions of counsel it is necessary to consider submissions put to the Tribunal by the applicant's counsel regarding the onus of proof under the Act and the nature of evidence that can be admitted to reach the standard of proof or satisfaction in proceedings necessary to reach the relevant findings.
2. Counsel for GKK submitted that the treating team had failed to meet the "onus of proof" in the proceedings and that the evidence presented by the applicant, Dr Chaudhary, and the mental healthcare co-ordinator, Mr York, as to the risks of harm to GKK and of any risks to MSY (and of certain of the other criteria) was mere hearsay and was unreliable. He submitted that the Tribunal member had failed 'to make an obvious inquiry about critical facts' by failing to closely question MSY at the hearing. He submitted that the evidence adduced by the treating team about risks, impaired decision making and the applicant's reluctance to undergo treatment voluntarily was vague, unreliable, confusing, and untested and that the Tribunal on the internal review should simply not accept the evidence. He argued that the treating team had not presented sufficient evidence to establish all of the criteria in s 16 to the reasonable satisfaction of the Tribunal.
3. Counsel for the applicant conceded that the proceedings were not adversarial in nature, were informal, and that the Tribunal could inform itself as it saw fit, but he argued that this did not mean that the Tribunal could make proper findings based on no evidence, or on insufficient, scant, unreliable and untested evidence. He submitted that the Tribunal had to be appropriately satisfied about the evidence in support of the making of the compulsory treatment order under the Act, as such an order affected the liberty of the subject person.
4. We do not accept the submission made by Mr Fabbro that the treating team had an 'onus of proof'. It is important to observe that when the Tribunal considers an application for a mental health treatment order under the Act the Tribunal is exercising an inquisitorial function.
5. We refer to s 8(f) of the SACAT Act noting that the Tribunal is required to act with:

(f) as little formality and technicality as possible including by informing itself in such manner as the Tribunal thinks fit; and

(g) to be flexible in the way in which the Tribunal conducts its business and to adjust its procedures to best fit the circumstances of a particular case or a particular jurisdiction.

1. Section 39(1) of the SACAT Act provides that:

(a) Proceedings in the Tribunal will be conducted with a minimum of formality and

(b) The Tribunal is not bound by the rules of evidence but may adopt, as in its discretion it considers appropriate, any findings, decision or judgement of a court or other tribunal and otherwise inform itself as it thinks fit; and

(c) The Tribunal must act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms".

1. As a general rule, in adversarial proceedings between two parties who are in dispute, the burden of proving a fact that is in dispute rests with the party asserting it. In the mental health list in the Community Stream of SACAT the proceedings are in the nature of an inquiry about the mental health of a person and about the need for a compulsory treatment order. Whilst there is an 'applicant' and a 'person who is the subject of the proceedings' (who are both 'parties' to proceedings under s 53 of the SACAT Act) the proceedings are not, in our view, inter partes proceedings. The proceedings are inquisitorial; the Tribunal has an obligation, where necessary, to probe the evidence and, where appropriate, to seek out other evidence.
2. It is not appropriate to refer to the treating team as having the 'onus of proof' in these proceedings. Such a legal concept is relevant to an adversarial process where the rules of evidence are strictly, or more closely, applied. Accordingly, in an application for a treatment order under the Act we consider that there is no legal onus on the mental health service, or on the person the subject to the application, to provide evidence to satisfy the Tribunal that the relevant criteria are or are not met.[4]
3. However, whilst the Tribunal's role is inquisitorial, it is not an investigative body. The Tribunal must not step into the shoes of the treating team, or 'patch up' the case of the applicant to make the case for an order for them. It is necessary for sufficient evidence to be placed before the Tribunal to enable the Tribunal to reach conclusions to its reasonable satisfaction in order to make the correct and preferable decision. We observe that a "common sense approach to the production of evidence" should be adopted.[5] That is, it is necessary for the applicant to adduce sufficient evidence to enable the Tribunal to reach the findings that are necessary in order to support the case that the criteria in s 16 are met.
4. We did not understand Mr Fabbro to submit that either the criminal or civil 'standard of proof' applied in these proceedings. Counsel's submission was that the Tribunal could not, on the evidence before it, reach conclusions to its reasonable satisfaction in order to make the correct and preferable decision. We agree that when making an order under s 16 of the Act the Tribunal needs to be satisfied to the degree necessary to reach the correct or preferable decision in the context of the legislative scheme.
5. 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,[6] the Tribunal is not bound to apply the "Briginshaw principle",[7] 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.
6. Regarding the nature of the evidence adduced in this hearing, Mr Fabbro described much of the material before the Tribunal as "hearsay". We note that the rules of evidence do not apply in mental health proceedings under the Act and that information obtained from third parties is regularly, and appropriately, admitted in such proceedings as part of the information relied upon by psychiatrists when reaching a diagnosis of mental illness and assessing risks.
7. 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.
8. 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.
9. 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.
10. 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.

1. A final observation before considering the evidence in this matter is that it is important to note the therapeutic context of these proceedings. We refer to the guiding principles of the Act in s 7(1)(a). That section states, relevantly:

The Tribunal...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 meet the highest levels of quality and safety; ...

(f) the rights, welfare and safety of the children and other dependants of patients should always be considered and protected as far as possible.

'"Mental health services" means all services involved in the treatment, care and rehabilitation of persons with severe mental illness, including the making and carrying out of orders under this Act...'[8]

1. We are very mindful that in the context of this case the 'third hand information' that the applicant's counsel challenged as unreliable, untested, vague and of little weight was evidence about the apparent effect of the applicant's mental illness on her daughter's welfare. It is apparent from the transcript and the comments of the Tribunal Member in the statement of reasons that no-one was expecting the attendance of the applicant's daughter at the hearing. In our view this may go some way to explain the paucity, vagueness and lack of detail in the evidence of the presenting consultant psychiatrist at first instance, and the manner in which the hearing was conducted. It appears from the transcript that the hearing was cut short in length, the psychiatrist's evidence was less than expansive in her presentation, and that the Tribunal Member limited the extent of her questioning of the treating team, the applicant and of her daughter.
2. We do not have the benefit of observing the demeanour of GKK's daughter but we infer that she was distressed by the hearing as the transcript indicates that she left the room prior to the conclusion of the hearing and she stated in her affidavit that she could not recall what her evidence had been as she had been "upset at the time''.
3. We offer the observation that all participants in proceedings for involuntary treatment orders need to be mindful of the therapeutic context of such proceedings within the guiding principles of the Act.[9] Medical practitioners giving evidence in hearings are often faced with the difficult task of having to refer to collateral information obtained from family members, or other significant persons in the patient's life. Quite often that information may be sensitive. Accordingly, care must be taken, when giving or eliciting evidence from practitioners regarding the source and specific detail of information, to ensure that vulnerable persons in the community, and the patient, are not adversely affected by the evidence. These considerations must, of course, be balanced against the rights of the patient and the rules of procedural fairness. Consequently, it is a very delicate and difficult task, both for the tribunal members, presenting medical practitioners, mental health workers, and the legal practitioners appearing in this jurisdiction.
4. We suggest that legal practitioners appearing in this jurisdiction have a responsibility, insofar as it is possible, to ensure that they represent their client's legal rights in a manner where their client's right to the 'best therapeutic outcome' is also achieved. Such an approach may include, for example, not involving vulnerable witnesses in proceedings, if possible, and not conducting an aggressive cross-examination of the treating practitioners during the course of a hearing. An unduly adversarial approach may not assist their client's circumstances, nor optimise the prospects of an outcome for their client which is both correct and therapeutically productive.
5. Further, whilst a patient has the right to call witnesses in proceedings for compulsory treatment orders, it is appropriate for the Tribunal to keep control of its own proceedings. This may include the Tribunal exercising its discretion under s 60(2)(i) of the SACAT Act to exclude any vulnerable witnesses from the main part of the hearing so that the treating team is not constrained by considerations about the impact of their evidence on family members, and so that the Tribunal can appropriately and freely probe the evidence to reach the correct decision.[10]
6. We recommend that all tribunal members conducting mental health proceedings give careful consideration to excluding vulnerable witnesses from all or part of the hearing where appropriate.

1. The Tribunal at first instance found that each of the criteria set out in s 16(1) of the Act were made out. The Tribunal made a Level 2 CTO for 12 months.
2. In reviewing the decision in this matter we have taken into account the evidence which was presented to the Tribunal at first instance, including both oral evidence contained in the transcript of hearing, and medical and other documents together with the additional evidence by way of an affidavit from the applicant's daughter, MSY.
3. The Tribunal takes all this evidence into account, in addition to the submissions made at the internal review hearing.
4. It is appropriate for us to address each of the statutory criteria in turn. In doing so the Tribunal has had regard to the principles and objects of the Act set out in ss 6 and 7.

1. We have considered the written and oral evidence from Dr Chaudhary, and from other consultant psychiatrists involved in the past treatment of the applicant. The Tribunal is satisfied that GKK has a diagnosis of schizophrenia based on the evidence before us.
2. The evidence established that the October 2016 admission to Glenside Rural and Remote was "the index admission". Dr Chaudhary and Mr York had visited the patient at her home. Dr Chaudhary initially assessed the patient as 'floridly psychotic'. This diagnosis was confirmed by another psychiatrist on initial review in hospital with symptoms involving religious delusions, pressured speech and labile affect. GKK was assessed to be paranoid, suspicious and tangential. The evidence obtained from family and police at that time was that the applicant had been experiencing, in their opinion, delusional beliefs of a religious nature for several years but had remained functional in the community. Her deterioration in her mental state appears to have been contributed to by the death of her mother.
3. During the index admission the evidence in the documents indicated that the applicant had a lack of insight into her condition and made it clear that she would refuse to take medications or engage with follow up and therefore the decision was made to apply for a Level 2 CTO which was granted. That order expired on 13 November 2017.
4. The separation summary indicated that her mental state had improved during admission and that her behaviour had settled as a result of treatment, but that she continued to lack insight.
5. Arrangements had been made after GKK's discharge from hospital for other psychiatrists to conduct ongoing consultations with her by tele-psychiatry assessment, due to GKK having difficulties with Dr Chaudhary and Mr York being involved in her ongoing care.
6. Tele-psychiatry assessments dated 3 March, 17 March and 3 May 2017 were conducted by Dr Laura Wigg, wherein she confirmed the diagnosis.

Section 16(1)(b) - need for treatment due to risks of harm to self or others

1. Dr Chaudhary submitted a very brief medical report in support of the current order, dated 17 November 2017. This was on a medical report form for mental health applications (a SACAT pro forma report form). It appears that Dr Chaudhary was confident to rely on an earlier report she had written to Dr Wigg in August 2017 (and which was tendered), together with a psychiatrist endorsed treatment and care plan dated 7 September 2017, which had also been tendered to the Tribunal. There is some evidence in those reports about the manner in which GKK's mental illness was manifesting in terms of paranoia and delusions, but the focus of Dr Chaudhary's concern was about how this was impacting on the daughter: "We were notified about her preoccupation regarding harm to her daughter by her school teacher/principal. GKK acted on this and was refusing to take her daughter to school".
2. The written evidence in November report regarding any risks to GKK herself was limited: "A risk of deterioration of MSE with inadvertent harm as she can accuse people due to her level of paranoia". This evidence was not supplemented by any detailed oral evidence that sufficiently establishes to our satisfaction that a deterioration in GKK's mental illness will manifest in risks to her functioning.
3. Dr Chaudhary's oral evidence was merely that, if left untreated there would be "some deterioration in [her] function over time".
4. Mr York described his observations of GKK in 2016, at the point of her first engagement with mental health services, namely, that she had been distressed by her delusions, was hearing voices from Jesus and had become disenchanted with the Catholic Church. He said she was 'not functioning well' and was 'hurting' but he did not elaborate on the basis for those conclusions. The Tribunal Member did not ask him to provide any further details.
5. The main focus of Dr Chaudhary's oral evidence before the Tribunal was a concern that a deterioration in GKK's functioning would place her daughter at risk, both directly and indirectly: "So, the only risk I would say would be if she deteriorates in her mental state, it does impact on MSY."[11]
6. Dr Chaudhary and Mr York both stated that MSY had not been going to school in the lead up to the last admission (the first admission in 2016) and it was the treating team's opinion that this was as a direct result of GKK's paranoia and delusions. However, there was no detail in the evidence to support these assertions, and the conclusion about the cause of the daughter's disconnect with her schooling was not explored by the Tribunal Member. MSY and her mother gave brief evidence about this topic, but this issue was not explored with them at all by any questioning.
7. There was some contradictory affidavit evidence before us on internal review about the risks to the daughter's schooling due to the deterioration in GKK's mental health. The Tribunal on internal review places limited weight on this evidence, given that it is untested (we did not have the benefit of seeing GKK's daughter or asking her any questions about the contents of her affidavit). We also observe that the applicant's daughter is only 16 years old, is living with her mother, and that the circumstances in which she has been asked to depose the affidavit are unusual.
8. However, considering all of the evidence on this issue we find that the evidence to support a finding that this criterion has been met was not properly explored, is vague, limited and lacking in any sufficient detail. We are not satisfied that this criterion has been met on the evidence before us.

1. We remind ourselves that a person is presumed to have full decision making capacity in respect of decisions about his or her health care.[12] We note that a focus by the presenting psychiatrist and by the Tribunal Member at first instance and on GKK's 'impaired judgement' by bringing her daughter to the hearing. We are not at all persuaded that what might be described as poor judgment in bringing her daughter to the hearing necessarily leads to the conclusion that GKK has impaired decision making capacity 'as to the appropriate treatment for her mental illness'.
2. The most recent assessment by Dr Laura Wigg, indicated that in her opinion the patient's insight about the fact of her mental illness remained impaired and that she continued to question why she had been placed on the Community Treatment Order and on medication.
3. Insight or acceptance of the fact of a mental illness is clearly a significant factor in assessing whether a person has impaired decision making capacity as to the need for treatment for a mental illness. A failure by a person to accept that they are suffering from a mental illness may consequently lead to a conclusion that the person has impaired decision making capacity as to the appropriate treatment for their mental illness.
4. GKK stated in evidence that" "I don't believe I have paranoia and I don't believe I am paranoid" and that she might, but was not too sure, that she would continue to take the medication if the order was not in place because, "I don't feel any different than what I did before I took the medication".
5. The oral evidence provided by the psychiatrist at the hearing on this topic is confusing. But it is not necessary for us to analyse the evidence on this topic further as we are not satisfied on the evidence as to the criteria in s 16(1)(b).

1. The final submission made by counsel for GKK was that there was a less restrictive way to provide treatment to GKK via a voluntary regime without the need for a Community Treatment Order. Mr Fabbro made much of the fact that since the diagnosis in October 2016 GKK had not been given the benefit of demonstrating that she was able to manage by engaging with the appropriate services and taking some medication for her mental illness. He submitted that the opinion of the treating team and the conclusion reached by the Tribunal member that there was, "clear evidence" that she would not continue with her current treatment regime was not borne out by the evidence given by GKK herself where she had stated: "I'm not too sure, I believe I would (continue treatment if an order was not in place) until I felt better."[13]
2. Mr Fabbro's stated that his instructions were that she 'probably would continue her treatment' and that there was no evidence that she has ever refused to undergo treatment since having been diagnosed. We note that Dr Wigg had suggested in May 2017 that 'it may be that GKK would be willing to continue follow up post the Community Treatment Order and she may also agree to remain on the depot or to take oral medication'. We note that Dr Chaudhary was not as optimistic about this issue at the hearing.
3. Given that the Tribunal on internal review is not satisfied that there is a proper basis to affirm the order, it is not necessary to proceed to further analyse whether there is evidence to satisfy this criterion.
4. We are nevertheless heartened by the observations of Dr Wigg and the evidence and the submissions before us, which indicates that the applicant accepts that she has some form of mental illness and that she will probably continue with some form of medication.

1. The full criteria for the making of the Community Treatment Order has not been made out on the evidence before the Tribunal at first instance and on the internal review.
2. It follows that the Tribunal is not satisfied that the decision subject to review was the correct or preferable decision.
3. We set aside the level 2 CTO made on 8 December 2017 under s 70(6) of the SACAT Act.

[1] Re AKS [2016] SACAT 19 [35].

[2] GKK, 'SACAT Application for Internal Review of Decision (Mental Health)', Application in GKK v Department of Health and Ageing 2018/SIR000018, 22 January 2018.

[3] Mental Health Act 2009 (SA) s 16(1)(b).

[4] WCH v Mental Health Tribunal (Human Rights) (Amended) [2016] VCAT 199.

[5] As described by the Victorian Court of Appeal in NOM v DPP [2012) VSCA 198, [83], [90].

[6] Re LEM [2015] SACAT 18; Sullivan v Civil Aviation Authority [2014] FCAFC 93.

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

[8] Mental Health Act 2009 (SA) s 7(2) (definition of 'mental health services').

[9] Ibid s 7(1)(a).

[10] We note that medical practitioners can also apply for an order under s 60(2)(h) of the SACAT Act and Rule 45 of the SACAT Rules in appropriate cases (although such orders would, we suggest, be made sparingly and only where there was clear evidence of a 'serious risk of harm' as defined in the Rules).

[11] Transcript of Proceedings, Department of Health and Ageing v GKK (SACAT, 2017/SC007306, Member Gilfillan, 8 December 2017) 8.

[12] Mental Health Act 2009 (SA) s 5A.

[13] Transcript of Proceedings, Department of Health and Ageing v GKK (SACAT, 2017/SC007306, Member Gilfillan, 8 December 2017) 4.