143 Compulsory treatment criteria

The compulsory treatment criteria for a person to be made subject to a temporary treatment order or treatment order are that -

(a) the person has mental illness; and

(b) because the person has mental illness, the person needs immediate treatment to prevent -

(i) serious deterioration in the person's mental or physical health; or

(ii) serious harm to the person or to another person; and

(c) if the person is made subject to a temporary treatment order or treatment order, the immediate treatment will be provided to the person; and

(d) there are no less restrictive means reasonably available to enable the person to receive the immediate treatment.

1. A person who is subject to a treatment order or temporary treatment order may apply at any time for the order to be revoked.[4] Upon determining an application for revocation, the MHT must either confirm or revoke the order.[5] If confirming the order, the MHT must determine that the order is a community treatment order unless it is satisfied that the person cannot be treated in the community.[6]
2. When interpreting the MHWA, a construction that promotes the mental health and wellbeing principles[7] is to be preferred over one that does not promote the principles.
3. When exercising its review jurisdiction, VCAT has all the functions of the original decision maker.[8] Therefore, the Tribunal must decide whether the treatment criteria are satisfied, based on the material before it at the time of VCAT hearing.
4. The Tribunal is bound by Charter of Human Rights and Responsibilities Act 2006 (Vic) ('the Charter') because VCAT acts as a public authority when reviewing a decision of the MHT. VCAT must interpret the provisions of the MHWA so they are as far as possible consistent with the Charter. [9]

1. Mr Jones gave a general background and history in relation to HSQ and a history of his mental health treatment. He submitted that the criteria in section 143(a) and (c) of the MHWA were conceded. Citing the MHT decision of XNU,[10] ('XNU') he submitted that the Tribunal ought to consider whether a slow relapse of psychiatric symptoms would satisfy the test in section 143(b). However, his primary submission was that the criterion in section 143(d) ('criterion d') wasn't met because there was a less restrictive means reasonably available for HSQ to receive his immediate treatment.
2. Mr Jones said that HSQ accepts that he is unwell and needs medication. He had electroconvulsive treatment in July 2025 and his condition had improved substantially since then. He submitted that there was a hospital in HSQ's proposed discharge town with three acute beds. The hospital would be available to HSQ in the case of a medical emergency including a psychiatric emergency.
3. A letter from HSQ's General Practitioner ('GP') was filed with the Tribunal. The letter stated that HSQ had been a patient of his since 2019 and that he would see HSQ on a fortnightly basis. A letter was also filed by HSQ's NDIS support coordinator confirming that she could support him to engage with local services for daily living supports, social and community participation and access to a mental health peer support worker.
4. HSQ agreed that he would like to be treated in his home community. He told the Tribunal that it is a relatively small and remote town. He is well known there, and people look out for each other. He feels that returning to his home would be positive for his recovery. He said that he would take whatever treatment his doctor recommended except lithium because of undesirable side-effects that he has experienced.
5. He stated that he has a good relationship with his GP who has administered his depot injection in the past. He agreed that he would continue taking his depot injection as well as his prescribed oral sodium valproate and that he is motivated to stay well. His plan in relation to his ongoing treatment would involve regular appointments with his GP as well as his scheduled appointments with the Bendigo Community Mental Health Service ('CMHS'). He proposed that he would travel to a halfway point to meet with the CMHS, so that continued engagement would be practical.

1. The treating team filed a report on compulsory treatment dated 12 November 2025. The report signed by Dr Dissanayake stated that the treatment criteria were satisfied and that the treatment order expiring on 31 December 2025 should 'stay in place'.
2. Dr Dissanayake speaking to his report, provided his observations as at the date of the hearing and responded to the submissions and evidence of and on behalf of HSQ. He agreed that HSQ had improved with treatment but said that he wasn't at a level suitable for discharge.
3. He stated HSQ's mental health had improved since he started taking lithium but agreed that both HSQ and the treating team were concerned about its side-effects. The treating team had recently ceased prescribing lithium, and they had noticed a slight deterioration. He said that the treating team needed to optimise HSQ's medications in an inpatient setting so that they could closely monitor the adjustments.
4. I prompted Dr Dissanayake as to the likely course of treatment if there was no order in place. He agreed that HSQ could be treated by the CMHS and his GP. He noted that the CMHS was a significant distance from HSQ's home and commented that it would be a 'more remote type of service'. He also spoke of NDIS supports that the treating team would seek to expand to assist with HSQ's daily living skills. According to Dr Dissanayake, this would be more difficult to arrange should HSQ engage in the alternative arrangements as outlined above in this paragraph.

1. I found that the treatment criterion provided in section 143(d) was not satisfied because there was a less restrictive means reasonably available for HSQ to receive the immediate treatment for the reasons outlined below. In making my findings I considered the Charter and the mental health and wellbeing principles.
2. It was conceded on behalf of HSQ that the criteria in section 143(a) and (c) were satisfied. It is not necessary, nor is it desirable for me to further analyse these criteria in these written reasons other than to say that I was satisfied in relation to both criteria. There was sufficient evidence presented in the treating team's report for me to conclude that HSQ had a significant disturbance of thought and mood.[11] The report and oral submissions of Dr Dissanayake outlined the treatment that had been and was proposed to continue to be provided on the treatment order under review.
3. As outlined above, a treatment order must only be made if all the treatment criteria are satisfied. Given my finding in relation to criterion d, it is also not necessary for me provide a detailed analysis in relation to the criterion in section 143(b). Even though Mr Jones submitted that regard should be had to the MHT decision in XNU regarding whether a slow relapse would satisfy the criterion, there was little discussion during the hearing on that point. Mr Jones at the commencement of the proceeding stated that his primary submission was in relation to criterion d and was therefore the primary focus of the hearing. I was satisfied from the medical evidence presented in the treatment report that HSQ's mental health would significantly deteriorate without immediate treatment even if the manifestation of the deterioration wasn't immediate.
4. In relation to my finding that criterion d was not satisfied, I was persuaded that he has a strong desire to manage his treatment in his home community. He expressed a strong motivation to follow his proposed plan and stay well with the assistance of his GP and the CMHS.
5. HSQ has been seeing the same GP since 2019. He provided persuasive evidence about how his engagement with mental health services would work. The fact that he lives in a small rural community creates difficulties regarding access to services. But on the evidence, his close community provides the advantage that any significant deterioration in HSQ's mental health would be noticed and action could be taken. I note the availability of a small hospital in the community that is available in the event of a psychiatric emergency.
6. In my view, HSQ's evidence regarding his desire to maintain his treatment to prevent any deterioration in his mental health was genuine and his plan plausible. Allowing HSQ to manage his treatment in the absence of a treatment order carried a degree of risk. However, taking into account the mental health principles, particularly the dignity and autonomy and the dignity of risk principles, it was a risk that was manageable and a risk that I determined HSQ ought to be allowed to take in the circumstances.

1. For the reasons above I found that the compulsory treatment criterion in section 143(d) of the MHWA was not satisfied at the time of the VCAT hearing. Because the compulsory treatment criteria were not satisfied there was no basis for a treatment order.[12] Therefore, under section 51(2)(c) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), I set aside the MHT decision under review dated 16 October 2025[13] and I substituted the decision by revoking the treatment order.

[4] Ibid, s 206(1). Section 206(2) lists others who may also apply for the treatment order or temporary treatment order to be revoked.

[7] Set out in Part 1.5 of the MHWA.

[8] Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 51(1)(a).

[9] Charter of Human Rights and Responsibilities Act 2006 (Vic), s 38(1); Kracke v Mental Health Review Board & Ors (General) [2009] VCAT 646.

[10] 2014 VMHT 61 (10 November 2014).

[11] Mental illness is defined under s 4(1) of the MHWA as a 'medical condition that is characterised by a significant disturbance of thought, mood, perception or memory'.

[13] On the hearing of HSQ's revocation application, the MHT decided to confirm the treatment order made by that tribunal on 3 July 2025.