Cases cited: Chief Psychiatrist and A [2011] ACAT 21

In the Matter of Adam [2020] ACAT 91

In the matter of BC [2018] ACAT 67

In the matter of ED [2017] ACAT 84

In the Matter of FG [2018] ACAT 134

Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180

Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

1. The Tribunal makes a Psychiatric Treatment Order in relation to [the subject person].
2. [The subject person] must comply with any determination made by the Chief Psychiatrist or delegate under section 62 of the Mental Health Act 2015.
3. Unless sooner revoked, this order has effect for 6 months from 19 November 2024.

The Tribunal will review this order on its own motion prior to expiry.

(a) This statement sets out how [the subject person] meets the criteria for a psychiatric treatment order under section 58(2) of the Mental Health Act 2015. The findings in the statement are based on the information before the Tribunal and are made on the balance of probabilities.

(b) [The subject person] has a mental illness because they have a condition that seriously impairs (either temporarily or permanently) their mental functioning in areas including thought and volition which is characterised by the presence of symptoms including delusions and hallucinations.

(c) [The subject person] does not have the decision-making capacity to consent to the treatment, care or support because they cannot understand the facts that relate to the decision, they cannot understand the main choices available to them in relation to the decision, they cannot weigh up the consequences of the main choices, they cannot understand how the consequences affect them and they cannot make the decision on the basis of the matters set out above. They refuse to receive treatment, care or support determined in relation to themself because they do not reliably keep scheduled appointments and they would not reliably take all prescribed medication if an order was not in place.

(d) The Tribunal believes on reasonable grounds that because of their mental illness, [the subject person] is doing serious harm to themself as a result of misadventure and self neglect and is likely to do serious harm to someone else as a result of stalking behaviour.

(e) The Tribunal believes on reasonable grounds that because of their mental illness, [the subject person] is suffering serious deterioration of their mental state and functioning.

(f) The Tribunal is satisfied that psychiatric treatment, care or support is likely to result in an improvement in [the subject person]'s psychiatric condition.

(g) The Tribunal is satisfied that the treatment, care or support to be provided under the psychiatric treatment order cannot be adequately provided in another way that would involve less restriction of [the subject person]'s freedom of choice and movement.

A statement of reasons will be published at a later date.

1. These reasons concern a decision made on 19 November 2024 to make a psychiatric treatment order (PTO) in relation to Daniel (a pseudonym).
2. This application was in the form of report prepared by Daniel's clinical manager, Karma Zangpo, and signed by Dr Rosemary Campbell, as a delegate of the Chief Psychiatrist, on 8 October 2024 (Review Report). The Tribunal heard the application on 6, 12, and 19 November 2024. At the conclusion of the third hearing, the Tribunal made the PTO. The Tribunal provided a brief statement of reasons with the Orders[1]. These reasons now set out in more detail the basis for that order.

1. The Tribunal apologises to the parties for the delay in these reasons. The Tribunal understands there are few written authorities in this space, and that these reasons are important both to the subject person and to those involved in the mental health jurisdiction (Mental Health) more generally.
2. One of the complexities facing the tribunal when publishing reasons in this jurisdiction is the requirement that Mental Health hearings be in private,[2] and the constraints that imposes on the tribunal. The scope of the prohibition on publication is a question that a differently constituted Tribunal is currently reserved on. However, these reasons need to be published. We have approached doing so with some caution.
3. This matter involves a man with symptoms that include chronic delusions and/or hallucinations. The content of these delusions, and the behaviour they have induced, is sufficiently distinct so that some people may recognise him were we to describe these in any detail. While most of those people will have dealt with Daniel in a clinical setting, in light of the uncertainty in this area, and out of an abundance of caution, this Tribunal will not go into any detail about the content of Daniel's delusions. Nonetheless, the Tribunal wishes to make clear that the nature of Daniel's delusions has played a part in our decision-making. We will allude to this, without elaboration, where necessary.

1. At the time of this decision, Daniel was a 41-year-old man with a well-established diagnosis of schizophrenia characterised by paranoid and grandiose delusions.
2. Daniel has a long history of managing his illness in the community. He had brief admissions in the Territory under emergency detention orders[3] in 2002, 2009 and 2013, as well as few weeks' admission interstate in 2004, but has otherwise been a voluntary patient until last year, when a deterioration in his mental health led to a period of in-patient care and the making of a PTO for six months in May 2024 (first PTO).
3. In terms of the events leading up to the making of the first PTO, it appears that in early-2024, Daniel suffered a significant deterioration in his health, including an escalation in delusional content. Substances may have contributed to this decline. He spent two weeks as an in-patient in January, and then a further three months in the Adult Mental Health Unit (AMHU) at Canberra Hospital, and the Adult Mental Health Rehabilitation Unit (AMHRU) from March 2024.
4. Daniel unsuccessfully sought review of that order in September 2024.
5. The Tribunal reviews all PTOs before their expiry, and the first PTO was listed for review on 10 October 2024. Dr Campbell then made an application for a further PTO. As is the usual practice, the tribunal listed the application for a further PTO at the same time as the review.

1. Section 58(2) of the Mental Health Act 2015 (MH Act) sets out the conditions that must be met before the tribunal may make a PTO. It states, relevantly:

_(2) The ACAT may make a psychiatric treatment order in relation to the person if - _

(i) the person does not have decision-making capacity to consent to the treatment, care or support and refuses to receive the treatment, care or support; or

(ii) the person has decision-making capacity to consent to the treatment, care or support, but refuses to consent; and

_(c) the ACAT believes on reasonable grounds that, because of the mental illness, the person - _

(i) is doing, or is likely to do, serious harm to themself or someone else; or

(ii) is suffering, or is likely to suffer, serious mental or physical deterioration; and

(d) in relation to a person mentioned in paragraph (b) (ii) - the ACAT is satisfied that the harm or deterioration, or likely harm or deterioration, mentioned in paragraph (c) is of such a serious nature that it outweighs the person's right to refuse to consent; and

_(e) the ACAT is satisfied that psychiatric treatment, care or support is likely to - _

(i) reduce the harm or deterioration, or the likelihood of the harm or deterioration, mentioned in paragraph (c); or

(ii) result in an improvement in the person's psychiatric condition; and

(g) the ACAT is satisfied that the treatment, care or support to be provided under the psychiatric treatment order cannot be adequately provided in another way that would involve less restriction of the freedom of choice and movement of the person. (emphasis added)

1. When hearing any application the tribunal must ensure its procedures are as simple, quick, inexpensive and informal as is consistent with achieving justice,[5] and procedures in the mental health jurisdiction reflect this. Processes are adaptable, participants are routinely referred to by their first name, subject persons may answer questions or not at their discretion, and the rules of evidence are not applied.[6] Nonetheless, the tribunal, no matter what jurisdiction it is sitting in, must observe the rules of natural justice and procedural fairness.[7] What is required by procedural fairness is a fair process and a fair hearing (not necessarily a fair outcome).[8] What 'fairness' requires will depend upon the facts and circumstances of the case,[9] but as a starting point, a person affected by a decision must be given a reasonable chance to know the case against them and to make their own submissions before a decision is made.[10] In the context of Mental Health, this will usually require the subject person be given a copy of any report the Chief Psychiatrist seeks to rely upon, and an opportunity to ask questions of the author of the report or another appropriate person who can answer them. In the rare care where this is not appropriate, non-publication orders should be sought as soon as possible under section 39 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) as early as possible.

1. The Review Report was a comprehensive ten pages, and set out background information and current observations, as well as notes from an assessment review undertaken by Dr Russell Barnes, a Senior Psychiatry Registrar, on 27 August 2024 and with Mr Zangpo on 8 October 2024.
2. The evidence in the Review Report may be summarised as follows:

(a) As at the date of the report, Daniel was living in the community with a potentially vulnerable family member.

(b) He had recently completed a lengthy inpatient admission. The admission followed a relapse of his schizophrenia, likely in the context of significant polysubstance use including amphetamine and cannabis.

(c) Daniel's schizophrenia was reasonably well controlled on a regime of fortnightly depot injections (flupentixol 40mg) and oral medication (including Olanzapine).

(d) Daniel was experiencing auditory hallucinations and paranoid delusions, but he appeared to have some insight into the latter.

(e) Daniel had reported that he had minimised his substance use.

(f) Daniel's insight was variable - he usually accepted that he had schizophrenia, but in the clinical review with Mr Zangpo he expressed some doubts about this, suggesting PTSD, autism and substances may be the cause of some of the symptoms, although he possibly (the language is unclear here) also acknowledged that his reluctance to accept his diagnosis may be a symptom of the schizophrenia.

(g) Despite having some insight into his illness, Daniel did not demonstrate decision-making in relation to treatment and was "fixated on medication side effects and not able to explain the rationale or benefits of ongoing treatment".

(h) Historically, Daniel had down-titrated and ceased his medications, eventually leading to deterioration in mental state.

(i) Due to sub-optimal management of Daniel's schizophrenia in the community, there had likely been a significant period of untreated psychosis, and therefore residual symptoms were likely to persist regardless of treatment options.

(j) Daniel had a history of inappropriate behaviours toward women, which appeared to be in the context of psychosis, but about which he lacked insight.

1. In relation to the latter point, the Review Report then went on to reference what was described as a "FoCIS Risk Assessment Report" (the FoCIS Report), prepared by the Forensic Consultation and Intervention Service. The Review Report set out several conclusions from the FoCIS Report, including that there were risks that Daniel would engage in stalking and violence. The Review Report concluded with the paragraph drawn directly from the FoCIS Report:

"a low threshold for PTO should be considered if there are concerns regarding decision making capacity, engagement with treatment or risk of harm to himself or others" [and that] "In view of this, we would like to seek a further 6-month PTO extension..."

1. Legal Aid lodged a copy of a NDIS Plan Report, valid to November 2023, and then an extended plan valid to November 2025.
2. NDIS plans are comprehensive documents that set out the profile of the subject person, including their goals and the supports they need to achieve them. Plans can be useful in the context of Mental Health hearings because they demonstrate the support that is available to the subject person in the community, including access to psychologists or other allied health workers, and assistance with things like organising services and taking medication. A strong support network may be a less restrictive means of providing care than a compulsory order, particularly for someone who finds engagement challenging, but who is not actively resistant or unwilling to engage.
3. Daniel had a considerable package that included funding for respite and other services, meals, transport, study, psychological services, occupational therapy and related services.

1. The first hearing was attended by Daniel, his parents, and Mr Zangpo. Daniel was represented by his lawyer, Ms Sutton.
2. At the first hearing, Legal Aid called for the production of the FoCIS report, and the matter was adjourned to allow this to happen.

1. The second hearing was attended by the same persons as the first, and also by Dr Barnes, and Dr Elizabeth Huxley, clinical psychologist, and Dr Brianna Lawreance, clinical psychology registrar, who co-authorised the FoCIS Report (with Dr Joey Le, Consultant Forensic and Child and Adolescent Psychiatrist).
2. A heavily redacted copy of the FoCIS report was lodged with the tribunal prior to this hearing, as per the Tribunal's request. Unfortunately, the report had not been served on Daniel or his lawyer. The Tribunal gave Ms Sutton some time to read the report, but even so, she was compromised in her ability to properly obtain instructions from Daniel or question the authors of the report about it. In such circumstances, reliance on the FoCIS report would have undermined natural justice. Given these concerns, and that the report was some six months old and, in any case, was written for a different purpose, the Tribunal ultimately decided to have no regard to it or the recommendations therein. Nonetheless, we mention it here because it relevant for other reasons that become clear shortly.
3. Instead, Dr Barnes gave evidence based on the Review Report and his current clinical view. His evidence may be summarised as follows:

(a) Daniel was "superficially compliant" with depot medication "in a guarded and superficial way", but "there is a great degree of fluctuation in terms of his willingness to engage in the treatment more broadly".

(b) Daniel constantly changed his preferences about medication - "[o]riginally, he wanted one type of olanzapine tablet and then he wanted another type. Then he went back to the first type ... Then he wanted to increase his depot as a result. Then he decided that he wanted to decrease it and increase it next time."

(c) Daniel asserted that he knew more about the medications than the treating team.

(d) Because of his constant negotiation, Daniel was very hard to work with.

(e) There have been numerous instances throughout Daniel's time with Canberra Health Services where he has discontinued treatment - although when questioned Dr Barnes did not have the details of those instances.

(f) The nature of schizophrenia is that psychosis is particularly bad for your brain, and each episode of psychosis increases the likelihood and the severity of later episodes of psychosis, and unfortunately, this eventually leads to a picture of treatment resistance whereby medications no longer completely ameliorate the effects of the psychosis.

(g) Over a long period of time, Daniel had been undertreated and as a result, he has persistent psychotic symptoms "despite ...being on what would otherwise be an adequate regimen of antipsychotics."

(h) Daniel had a good therapeutic relationship with his general practitioner, and was good at thinking about things after the fact, and eventually could often work his way towards realising something, but did not always have that insight early enough to prevent psychosis.

(i) On this basis, Dr Barnes submitted that -

in terms of his engagement in general and his, sort of, disorganised and fluctuating behaviour in relation to his other medications and treatment, I would say that that's the basis of what would constitute refusal.

1. The tenor of Dr Barnes' evidence was that Daniel was not properly treated and was not at baseline and may be deteriorating, in the sense of his delusions becoming chronic and increasingly treatment resistant.
2. Mr Zangpo gave evidence to the effect that the weekend prior to the hearing, Daniel contacted Access Mental Health team (Access team) at the Canberra Health Services (Health) requesting his medications be adjusted. He had requested the Access team deliver the medications to his home, and he has threatened to not take any of the medications, including Olanzapine.
3. Daniel also gave evidence at the hearing. Daniel's evidence was that:

(a) He had ceased medication once but had since been compliant and was "working with the mental health team, not against them".

(b) There was "a lot of wilful misinterpretation ... happening." However, he agreed that there was "some miscommunications in my frustration about not being taken off olanzapine and increasing the depot, as I originally requested several times over the weekend in question". He had wanted to be taken off the Olanzapine but was content with a reduced dose. In terms of his interactions with Health, he agreed that he "did express frustration over the phone due to the non-compliant nature of the people who answered my phone calls at the Access Mental Health hotline". He explained that he wanted his medication delivered because of a "slipped disk", and that it was a very frustrating experience. He was clear that he was not declining medication.

(c) He said that there was only one instance of him discontinuing support from work, mental health and the mental health system, where he was discharged for being well enough to not need their support anymore. He stated, "I've since learnt by my down-titrating of medications and I won't repeat the process again. It happened once and it's not going to happen again."

(d) His recent admissions were caused by a "caffeine binge".

(e) He was able to manage his condition voluntarily and would seek help - when feeling unwell he knew to seek help, including from his GP, who he has a good relationship with.

(f) His guarded presentation with Dr Barnes was because he did not know him.

(g) He agreed that he had said that he had more experience with medications than the doctors, but what he meant by that was that he has first-hand experience because he consumed them.

(h) His condition had not worsened, and he did not believe that it was worsening.

1. Having regard to the evidence before the Tribunal, Ms Sutton submitted that the requirements for a PTO were not made out because subsection (b) of section 58(2) regarding refusal, and subsection (g) regarding the absence of a less restrictive alternatives, had not been met:

(a) On the evidence, Daniel was not refusing treatment, care and support.

(b) Daniel had a 22-year long history of consistently engaging with the mental health care system. He had a long history of voluntarily admitting himself in and staying in mental health institutions and recovery centres.

(c) Daniel was on the NDIS and disability support pension for his diagnosed schizophrenia, under which he received regular support for demonstrating and acknowledging his illness and the need for treatment.

(d) Daniel admitted that he occasionally has concerns about the side effects of his medications and explores alternative options with his treating professionals. However, he only ceased his medications under medical supervision and on medical advice.

(e) Daniel has the right under section 6(c) of the MH Act to determine his own recovery, and a main object contained in section 5(b) of the Act is to promote the capacity of people with mental illness to determine and participate in their assessment and treatment, care, and support.

(f) Whilst acknowledging that the delegate's contention that Daniel does not have decision-making capacity or that his decision-making capacity fluctuates, this does not negate the necessary element of refusal. Daniel's consent to treatment consistent over a period of over two decades cannot lawfully be rendered irrelevant.

(g) Finally, there is a less restrictive option available, being the options he has available under the NDIS, the disability support pension and the support of his family.

1. At the end of the hearing, the Tribunal reserved its decision.

1. Once the tribunal "reserves" a decision, it is generally not appropriate for parties to lodge further evidence or submissions. This is because parties to a proceeding have a right to know and respond to the information that the tribunal is going to rely upon, and information coming in after the close of the hearing can compromise that.
2. As noted above, at the second hearing, the Tribunal determined not to rely upon that FoCIS report. There were three reasons for this: in the interests of natural justice, it was six months out of date, and it was prepared for a different purpose. In those circumstances, we could put little weight on the report. In any case, Dr Barnes was available to give recent evidence and answer questions.
3. Unfortunately, following the closing of the proceedings, both parties sought to put the FoCIS report back in evidence.
4. Dr Barnes was the first to do so. He made a brief email submission, largely about a procedural issue, at 7:48pm on 12 November 2024. That submission referenced material that was said to be in the FoCIS report. Daniel then made his own submission at 2:13am the next morning (Daniel's email). Daniel's email referred to parts of the FoCIS report that were redacted, speculating as to what was in it, and also included some further content and assertions that appeared to be at least partially delusional in nature.
5. Very properly, registry did not bring either of these emails to the Tribunal's attention. Registry does not usually bring to the attention of the Tribunal correspondence of that nature that is filed after the close of proceedings. They were, however, placed on the file.
6. The Tribunal then received another letter, this time from Legal Aid on behalf of Daniel. That letter was procedural in nature, and was brought to the attention of a member of this Tribunal by a registry officer who wanted to know what they should do. That Tribunal member opened the file and saw Daniel's correspondence.
7. Subsequently, Daniel sought to withdraw the email, but by then it was part of the Tribunal's file, and the Tribunal had read it.
8. The tribunal is not a court, and it is not bound by the rules of evidence.[11] As such, the tribunal does not, in a functional sense, have a separate registry file and the court file, and nor do Mental Health files have a clear distinction between what is lodged and what is "tendered" or admitted into evidence. Documents that are lodged are placed on the common file and may be read by members in preparing for hearings or writing reasons. This again highlights the importance of parties not sending in documents while a matter is reserved, unless given leave.
9. Still, what was done was done, and the Tribunal was faced with trying to work out how to deal with the information.
10. In explaining what we did, and why, it is important to put Daniel's email into context.
11. The Tribunal has before it an application for a psychiatric treatment order for Daniel. Daniel had a long history of psychiatric illness dating back to 2002. For most of this time, Daniel's contact with ACT Mental Health had been voluntary with sporadic short episodes of brief compulsory detention under three day emergency detention orders.
12. Questions at the second hearing included the degree to which Daniel was suffering the symptoms of schizophrenia, how his illness was progressing, and whether there was a possible existing psychosis or thought disorder that was comprising his insight and decision-making ability. This is why Daniel's email, sent at 2:14am in the morning, concerned the Tribunal.
13. The members of this Tribunal are not medical practitioners,[12] but through our work in the community and in this tribunal, we have experience in seeing the progression of mental illness over the course of a hearing and in the months and even years that follow the making of a PTO. We are familiar with the patterns of mental illness.
14. Daniel's emailed raised concerns in the Tribunal's mind as to whether it was indicative of a continuing illness that put Daniel at risk to himself or to someone else or could (having regard to the evidence that Dr Barnes gave at the second hearing) compromise Daniel's ability to comply with treatment voluntarily. Obviously, the Tribunal could not draw any conclusions about this without appropriate expert evidence, but we were concerned by the possibility and the consequences of that.
15. Accordingly, the Tribunal relisted the matter to hear from the parties as to how we should manage the matter and what it should make of the email.

1. The third hearing was attended by Dr Sabir, staff specialist psychiatrist, Dr Akurathi, staff specialist psychiatrist, and Dr Barnes, as well as Mr Julius Adu, a clinical manager on behalf of the Chief Psychiatrist. The subject person again attended with his mother and father and was represented by Ms Spencer and Mr Darling of Legal Aid.
2. Ms Spencer initially made an application that the Tribunal recuse itself and be reconstituted by a new Tribunal that had not been privy to Daniel's email. The Tribunal declined this application and gave reasons. After hearing further from the parties, the Tribunal determined to reopen the hearing and seek further evidence from both parties.
3. Dr Barnes opined, in relation to Daniel's email that:

(a) It was a little more thought-disordered than previous interactions.

(b) The overall flow was suggestive of someone with thought disorder at present, but also there were a number of obvious paranoid and persecutorial delusions there which were in and of themselves a risk factor, particularly viewed in the context of past delusions.

(c) Daniel's descriptions of hearing gossiping within earshot were suggestive of experiencing current auditory hallucinations and there were some ideas of reference which means, basically that are suggestive of psychosis.

1. Dr Barnes said it was unlikely that caffeine was a contributing, or significantly contributing, factor:

...caffeine is a very mild stimulant. I wouldn't expect it to in and of itself cause this kind of degree of thought disorder to happen solely due to the caffeine. Additionally, he references a lot of his preexisting delusional structure which are - you usually won't get that unless these are chronic as well ... systemised delusions, as we would call them, usually are evidence of chronic psychosis.

What this email very clearly reflects - articulates, is psychiatric phenomenology and that psychiatric phenomenology is what leads to delusions, paranoid delusions, thought disorder, auditory hallucinations and ...(inaudible)...delusions. This symptomology is enough to make a diagnosis of - in chronic constant - context, major mental illness

1. Dr Akurathi went on to describe the consequences of untreated psychosis:

Having schizophrenia hypothetically, metaphorically, can be considered as someone has diabetes. If they take the tablets, symptoms are well controlled. They don't take the tablet next day, symptoms they come back. They're going to have to take treatment lifelong.

He is guarded with Dr Russell, but when dealing with other clinicians expresses views similar to those in the email.

(a) He can become unwell when he binges on caffeine, and he is aware of this and that is why he was requesting 5mg of olanzapine PRN - he called the Access team to seek advice about whether he should take a higher dose, but once he realised the person on the phone was not a doctor he decided not to do the caffeine or the olanzapine until he got a doctor's permission.

(b) Had he taken the olanzapine before sending the email, he would have reflected on all of this information, realised it contained delusional content, such as the auditory hallucinations, the paranoia, the visual cues, and requested a higher depot on the ground that his olanzapine was reduced or withdrawn completely.

(c) He was trying to communicate this to the treating team on the day he called twenty times.

(d) He had only missed two appointments with Dr Barnes on his own accord, the others Health had rescheduled.

(e) He was not guarded during reviews, he was honest.

1. In summary, Daniel maintained that he was actively engaging in treatment, that he had been compliant, that he had insight, that he wanted treatment, and that he did not require a compulsory order to get it. He denied that his condition was worsening.

Statutory criteria and evidence before the Tribunal

1. The requirements that need to be met before ACAT can make a PTO are set out in section 58(2) of the MH Act. A PTO can only be granted by the Tribunal if all of the conditions are met at the time of the hearing. The onus is on the treating team to provide evidence for each criterion, and that evidence must satisfy the Tribunal on the balance of probabilities. The person who is the subject of a PTO application can challenge this evidence or present evidence to the contrary at the hearing.

The person has a mental illness - section 58(2)(a)

1. A 'mental illness' is defined in section 10 of the MH Act to mean:

_mental illness means a condition that seriously impairs (either temporarily or permanently) the mental functioning of a person in 1 or more areas of thought, mood, volition, perception, orientation or memory, and is characterised by - _

(a) the presence of at least 1 of the following symptoms:

(b) sustained or repeated irrational behaviour that may be taken to indicate the presence of at least 1 of the symptoms mentioned in paragraph (a).

1. While it is not uncommon for hearings to involve some discussion and perhaps contention about diagnosis, it must be emphasised that the MH Act is concerned not with the clinical definition of mental illness, but rather with whether the subject person has the symptoms of a mental illness as defined. These symptoms must generally be present at the time of the clinical examination, noting that at the time of making the order, treatment may have ameliorated or addressed them.
2. Daniel has a clinical diagnosis of schizophrenia. In his case, the illness is characterised by paranoid and persecutory delusions and hallucinations. Evidence before the Tribunal also suggested a degree of thought disorder.
3. The weight of the expert evidence was that his condition is chronic and enduring, and Daniel's interactions with the Access team and the content of Daniel's email were evidence of active psychosis.
4. The evidence of both Dr Akurathi and Dr Barnes was that, even when treated, Daniel was likely to have residual symptoms, and that appeared to be the case based on the material before the treating team as at the time of the third hearing.

The person does not have decision-making capacity and refuses treatment - section 58(2)(b)(i)

1. In order to make a PTO, the tribunal must be satisfied on reasonable grounds that the subject person either:

(a) does not have decision-making capacity to consent to treatment, care or support and refuses the treatment, care and support; or

(b) has decision-making capacity, but refuses to consent to the treatment, care or support (emphasis added).

1. Section 8(1) of the MH Act sets out principles of decision-making capacity that must be taken into account in assessing capacity. These include that:

(a) a person's decision-making capacity is particular to the decision that the person is to make;

(b) a person must be assumed to have decision-making capacity, unless it is established that they do not;

(c) a person must not be treated as not having decision‑making capacity unless all practicable steps to assist the person to make decisions have been taken;

(d) a person must not be treated as not having decision‑making capacity only because -

(i) the person makes an unwise decision; or

(ii) the person has impaired decision-making capacity under another Act, or in relation to another decision.

1. Section 8(1)(f) of the Act states that a person must not be treated as having decision-making capacity to consent to treatment only because the person complies with the provision of treatment.
2. The opinion of the medical team is that Daniel lacks decision-making capacity in relation to some elements of his treatment and care. Broadly, he appears to accept he has schizophrenia (albeit, he attributes some psychiatric symptoms to drug induced psychosis and autism), but he does not understand the risks associated with that condition or the treatment options and he cannot weigh up those risks. Considered cumulatively, in their views, this means Daniel lacks decision-making capacity in relation to his treatment and care.
3. A lack of insight of this kind is, sadly, an insidious feature of schizophrenia. On some of the evidence before the Tribunal, Daniel appears to understand this, too. However, the nature of the illness means that, even if he appreciates on an abstract level the effects of schizophrenia on his decision-making, and is capable of looking back at periods when he was unwell and reflect on them in a positive way, he is not able to recognise those effects at the time they are happening.
4. This leads us to the second limb of the test, that of refusal. Refusal is a complicated issue.
5. The importance of the refusal was discussed by the tribunal in In the Matter of Adam (Mental Health) [2020] ACAT 91 (Adam) as follows:

the policy behind this requirement seems to be that a person with a mental illness has the same rights as others, and that those providing services to a person with a mental illness should support and allow them to make their own decisions and respect their decisions to accept treatment whenever practicable and appropriate. That is, even though a person may have a mental illness and not have capacity, if they accept treatment, this acceptance should be respected rather than rendered irrelevant by a compulsory treatment order. Further, the policy is clearly that a person with a mental illness should receive treatment in a way that is least restrictive of them and that respects their rights, inherent dignity, and needs. Allowing a person to accept treatment, rather than requiring them to undergo treatment by a compulsory order, is less restrictive to them.[13]

1. Put more simply, a PTO should not be made where a person is engaging with treatment and not actually refusing it.
2. What does 'refusal' look like in a context where a person does not have decision-making capacity? In In the Matter of FG (Appeal) [2018] ACAT 134, the Appeal Tribunal addressed that question as follows:

The word 'refuses' is not defined in the MH Act or the Legislation Act 2001. In our view, it should be given its ordinary English meaning. The Macquarie Dictionary defines 'refuse' as meaning "to decline to accept (something offered)", "to express a determination not (to do something)", "to decline to submit to", and "to decline acceptance, consent or compliance." The Australian Concise Oxford Dictionary[13] defines 'refuse' as "say or convey by action that one will not accept or submit to or give or grant or gratify or consent".

For the purpose of section 58(2)(b)(i), a person refuses to receive the treatment, care or support if they decline to receive it, or express a determination not to receive it, or an unwillingness to receive it, whether by action or words.

That meaning seems to include a notion of voluntariness which might ordinarily be premised on a person making an informed choice. In other words, a person would make an informed decision to refuse treatment. However, in our view, that approach is not appropriate because section 58(2)(b)(i) applies where the subject person does not have decision-making capacity to consent to the treatment, care or support. Refusal should be objectively assessed by reference to what the person says or does.

1. In terms of what may be 'refused' - the dictionary to the MH Act defines this to mean:

treatment, care or support_, for a mental disorder or mental illness - _

(a) means things done in the course of the exercise of professional skills to remedy the disorder or illness or lessen its ill effects or the pain or suffering it causes; and

(b) includes the giving of medication and counselling, training, therapeutic and rehabilitation programs, care or support.

support to improve social confidence and integration

1. The "or" is significant. In In the matter of ED (Mental Health_)_ [2017] ACAT 84 (In the Matter of ED), the ACAT noted that 'refusal' means the refusal of any part of the proposed treatment, care and support.[14] This goes well beyond just a refusal to accept medication.
2. The Tribunal in In the Matter of FG went on to observe that in terms of when refusal must occur:

In a practical sense, for each application for a PTO there are two dates where refusal should be assessed - the date of the application and the day it is decided.

(a) When making an application for a PTO, the applicant doctor will need to record in writing whether the subject person refuses to receive the treatment, care or support, and should provide some information about that refusal. That assessment is necessary for the purpose of making the application, but cannot determine the outcome.

(b) The determinative date is the date when the Tribunal decides whether to make a PTO. The facts and circumstances described in section 58(2) must exist at the time the decision is made, irrespective of whether they existed at the time the doctor made the application.

1. Refusal can take several forms, and it is ultimately a question of fact whether it exists in any given case. As the Tribunal observed in Adam:

The Tribunal has generally taken the view that it is not enough that a patient simply says that they will not refuse, that is, says they will accept the treatment, for section 58(2)(b)(i) to prevent the making of a PTO. The Tribunal has generally looked at broader factors including (where applicable) the person's past acceptance or refusal of treatment to determine whether it is likely that they will consent to the treatment in the period within which it would otherwise be ordered. This reflects the reality of the effect of a mental illness, and the resulting lack of capacity, on people. It is an approach supported by the possible significant detrimental effect on a person if an order is not made on this basis. That is, that a person with a mental illness, without capacity, who is likely to do serious harm to themselves or someone else or suffer serious mental or physical deterioration, will not be required to have treatment.

1. Similarly, in In the Matter of FG it was observed:

Refusal to receive treatment can be masked by superficial compliance to create an impression that the person voluntarily receives the treatment when they do not. For example, a person might receive treatment, not because they are willing to do so but because they are subject to an emergency detention order or a PTO and recognise that they have little if any choice, particularly if action can be taken if they breach an order. Another person might decide to receive treatment only for so long as necessary to create the appearance of compliance so that the requirement of section 58(2)(b)(i) is not met and they are no longer required to receive treatment involuntarily. They can then refuse treatment, with potentially deleterious consequences to their mental health. Hence, a person's refusal might be evident by necessary implication through their conduct.[15]

1. The evidence before the Tribunal is that Daniel is, on a superficial level, accepting the depots and oral medication. However, he negotiates treatment, changes his mind, and make demands. While, as a voluntary patient he is within his rights to do these things, the voluntary nature of the treatment means that the treating team must, to treat Daniel, reach an agreement with him about his treatment, even if this means settling for on less-than-optimal treatment. His engagement with the treating team is reluctant and guarded. This means he is, in a functional sense, refusing the fully recommended treatment, care and support, and this has limited the ability of the team to fully engage Daniel and provide him with the treatment he needs.
2. Put differently, the refusal, in Daniel's case, was not of treatment in its totality, but rather treatment in a practical sense, meaning that was being provided being suboptimal, and having been suboptimal for a considerable period of time. The consequence was that it was not possible for the treating team to do all the things available to them during the exercise of professional skills to remedy his illness or improve his wellbeing.

Because of the mental illness, the person - is doing, or is likely to do, serious harm to themself or someone else; or is suffering, or is likely to suffer, serious mental or physical deterioration, which is of such a serious nature that it outweighs the person's right to refuse to consent - section 58(2)(c)

1. Simply having a mental illness and refusing treatment is not sufficient for a PTO to be granted. Rather, there must be evidence that the subject person is likely to do serious harm to themselves or others, or that they are likely suffer a serious deterioration that outweighs their right to refuse consent no order is made.
2. In this case, there was strong medical evidence that Daniel was likely to do serious harm to himself because of misadventure. His delusional content may place him at risk from other people, or place him in a situation where he may come into contact with law enforcement or the justice system.
3. Daniel's delusions were also such that there was a real risk of serious harm to other people, particularly women who he comes into contact with. 'Harm', in this sense, does not just cover physical harm, but also the consequences of threatening or stalking behaviour. Daniel's potentially dangerous delusions in this regard appear to be driven by psychosis, and Dr Barnes opined that this risk may increase with the deterioration of his condition.
4. In his evidence at the second hearing, Dr Barnes effectively said that there were two snapshots in time that he had taken of Daniel - by the third hearing, there was another in the form of Daniel's email. The treating team and the Tribunal also had before it a comprehensive history, as set out in the Review Report. This evidence suggested a gradual but continuing decline in Daniel's mental health. It also suggested that Daniel's delusions have become chronic, and increasingly difficult to treat and that this decline would continue unless he were adequately treated.
5. In light of this evidence, the Tribunal was satisfied that, if not adequately treated, Daniel would be at risk of causing serious harm to himself or someone else.
6. The Tribunal was also satisfied that Daniel's condition, while not necessarily unstable at the time of the hearing, would likely continue to grow worse over time. As such, the Tribunal was also satisfied that Daniel, without adequate treatment, Daniel would suffer a mental deterioration, which was of such a serious nature that it outweighs the person's right to refuse to consent at this time.

Treatment, care or support is likely to: reduce the harm or deterioration, or the likelihood of the harm or deterioration, or result in an improvement in the person's psychiatric condition. - section 58(2)(e)

1. The evidence before the Tribunal was that a period of consistent treatment, including appropriately titrated medication, would reduce the further harm that would likely be caused to Daniel's health should he continue along the current path of undertreatment.

The treatment, care or support to be provided under the psychiatric treatment order cannot be adequately provided in another way that would involve less restriction of the freedom of choice and movement of the person - section 58(2)(g)

1. The other contentious question for the Tribunal was whether there was a less restrictive means of ensuring Daniel gets the treatment and support he needs.
2. The requirement that the Tribunal preference the least restrictive option reflects the object of the Mental Health Act that people with a mental disorder or mental illness receive assessment and treatment, care or support in a way that is least restrictive or intrusive to them.[16]
3. Consideration of the least restrictive option requires a determination of the treatment, care and support that needs to be provided to the subject person, and whether, in a practical sense, these can be provided without an order in place. This is a question of fact.
4. Daniel's position was that he had over twenty years of voluntary, or mostly voluntary, engagement. He had a history of taking medication. He presents to hospital voluntarily when unwell. He lives in the community, in well supported accommodation, with a NDIS package that meets his needs to support him to engagement meaningfully. He has a local and engaged family. These supports, he submitted, ensure that he gets the treatment, care and support that he needs, when he needs it.
5. Daniel also asserted his desire to continue treatment and prevent deterioration. As he clearly stated, he did not want to go through the period of deterioration and in-patient treatment again.
6. The Tribunal accepted that Daniel's commitments and convictions were genuinely held. However, we had to weigh them against the evidence of his current medical condition, and the effect of that condition on his decision-making, and his conduct. The evidence from all the clinical specialists who attended the hearings was that Daniel was chronically undertreated, that his illness was increasingly difficult to treat, and that his psychosis more enduring because of this. These circumstances strongly supported the conclusion that the current treatment regime was not working. This was not Daniel's fault, in any sense, but it was the reality of a situation, a situation contributed to by constant negotiation and compromise. In those circumstances, the Tribunal was satisfied that a more restrictive approach was required to ensure Daniel got the treatment he needed.

1. In In the matter of FG, the Appeal Tribunal described the making of a PTO as a "predictive exercise":

The making of a PTO is in part a predictive exercise. In ascertaining whether to make a PTO and the duration of it, the Tribunal is required to decide not only whether a person satisfies the statutory criteria at the date of the hearing but whether the person is likely to continue to do so for a period of up to 6 months. Some criteria, particularly those in section 58(2)(c), (d) and (e), make the predictive nature of the task explicit.

1. In conducting this "predictive exercise" the Tribunal is looking forward, into an unknown future, and trying to foresee what will happen to the subject person if an order is not made. To do this, we look both at the evidence of the subject person's current circumstances, and to evidence of the past, including what has happened, and whether anything has changed. We hear from the subject person, as to their understanding and intentions, and from the treating team, who draw upon their experience and expertise to offer an expert opinion on likely future outcomes.
2. In this matter, there was no question that Daniel had a mental illness, and that without treatment and care, he was likely to do serious harm to himself, whether through misadventure or self-harm, or because of serious mental decline. There was evidence before the Tribunal, albeit contested, that Daniel was already suffering mental decline. It was not seriously disputed that Daniel lacked decision-making capacity to consent to treatment and care, in the sense that he could fully understand or weigh up the facts associated with treatment and/or weigh the risks. This was not a reflection of Daniel, but rather a consequence of his illness.
3. What was in dispute was whether Daniel refused to receive treatment, care and support, and whether a PTO was the least restrictive means of providing it to him.
4. During the hearing process, Daniel conceded that he questions, opposes, and negotiates the medication, but emphasised that he ultimately took it. He conceded that on one occasion in the past he ceased taking the medication, but that he had learned a lesson from that, and he did not intend to cease his medication, or become that ill, again. He asserted that he had the insight and capacity to continue to advocate for himself, and the right to question his treatment, and the Tribunal could not draw the conclusion, from this alone, that he was refusing treatment.
5. We agree that an explicit principle of the Mental Health Act is that a person with a mental disorder or mental illness has the right to determine their own recovery and the right to have their will and preferences considered and decisions made about treatment, care or support. However, while this principle is of paramount importance, the Act also provides a framework for limiting it, particularly where, because of their illness, a person is not able to determine their own recovery.
6. In this case, the Tribunal had evidence from four experienced doctors, three of whom are psychiatrists and one of whom was a senior psychiatric registrar, and from two experienced case managers to the effect that Daniel was unwell, undertreated, and in real need of more assertive treatment, care and support than had been provided.
7. At the first hearing, we heard from Dr Barnes as to his concerns about whether Daniel's engagement would continue. Dr Barnes described Daniel's engagement as superficial, noting that refusal within the context of the Mental Health Act is more than just refusing a depot, it also insight and engagement with the full treatment that is required. Dr Barnes explained how it was difficult to work with Daniel. His insight fluctuates and the treating team engages in a negotiation process in order to treat him. Because of the voluntary nature of that treatment, the treating team had to try to find a solution to the Daniel's contradictory requests, while respecting his voluntary status, with consequent compromises for his care. Because of the negotiation process, Daniel had been under treated, or sub optimally treated for some time and now had persistent psychotic symptoms. Dr Barnes was concerned that Daniel would, without assertive treatment, either disengage, or at least decline optimal treatment, and one of the reasons for these concerns was the psychosis or underlying thought disorder that has resulted from the suboptimal treatment in the past and hence continuing residual symptoms.
8. These observations were supported and expanded upon by Dr Akurathi and Dr Sabir at the third hearing. As set out above, they gave compelling evidence as to the consequences for long term undertreatment of a psychotic illness, such as schizophrenia.
9. It is well known that untreated or undertreated schizophrenia has serious consequences for a person's relationships, livelihood and general welfare, and may cause a decline in cognitive function over time.
10. Dr Akurathi was concerned that Daniel's email, viewed in the context of both his reviews with Dr Barnes and his interactions with other health staff, demonstrated psychiatric phenomenology. Dr Sabir was of the view that Daniel condition is one of current psychosis and required immediate, assertive treatment. This accords with Dr Barnes's observations, at the first hearing, that Daniel's condition was worsening over time.
11. We acknowledge that Daniel wants control of his treatment. We acknowledge that, generally, voluntary engagement is the beneficial and a person who in involved and engaged in their treatment is likely to have better outcomes. Voluntary engagement is to be preferred, having regard both to the terms of the MH Act and as a general statement.
12. At the same time, however, we do not think it is seriously in contest that where a person is suffering an active psychosis their will and preferences may well be affected by that disorder in a way that compromises their decision-making ability and leads them to make decisions that may put themselves or someone else at risk. That is precisely why schizophrenia is such a debilitating illness - a person may be affected by it in such a way that they cannot recognise or accept what they need to do to get well. In such circumstances, their right determine their own treatment and recovery may be limited, at least until they are able to engage fully, or recover their decision-making capacity. A short-term restrictive order may be the best or only way to ensure long term autonomy and wellness.
13. At the time of making the decision, the Tribunal was satisfied that Daniel would continue to be treated to some degree without an order, but we could not be satisfied that he would be optimally treated - that is, we could not be sure that the treating team would be able to do all the things done in the course of the exercise of their professional skills to remedy his illness or lessen its ill effects or the pain or suffering it causes him. The minimal and superficial engagement facilitated by the voluntary process had proven to be insufficient to ensure that Daniel had the best chance of an adequate recovery, or at least the prevention of further deterioration. A more assertive approach was required.
14. In terms of whether this decision was the least restrictive, we were satisfied that a compulsory order was the least restrictive option, perhaps not in the immediate sense (that would have been to let him go home, voluntarily, to continue to negotiate his treatment), but certainly when we looked forward - making the order on the day ensured Daniel has the best chance of recovery, and independent and self-determination in the future. Thus, the PTO least restrictive option when considered against the lifetime nature of the illness that Daniel has.
15. In closing, we return to the beginning words of this part of the decision - a PTO is a predictive exercise in which we weigh up facts about the past and present and opinions about the future, and in this case, we were satisfied that, looking at the future of this still relatively young man, an order was required to give him the best chance of a stable and health life, and no less restrictive alternatives were available.
16. For these reasons, the Tribunal made a six-month PTO in the stated terms.

[1] Noting that under section 59(2)(b) of the Mental Health Act 2015, a psychiatric treatment order must be accompanied by a statement about how the person meets the criteria under section 58 (2) of the Act.

[2] Mental Health Act 2015 s 194

[4] Subsection (f) relates to forensic treatment orders and is not relevant to these proceedings

[5] ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) s 7

[8] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [25]

[9] Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475 at 503-504 per Kitto J

[10] Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 at [83]

[12] Under s 186(2) of the MH Act, to hear an application for a PTO, the Tribunal must be constituted by a presidential member, and a non-presidential member with a relevant interest, experience or qualifications. Several senior members of the tribunal are qualified psychiatrists, and such specialists are regularly allocated to the Tribunal to hear applications under the MH Act; however the Tribunal may also be constituted by professionals with relevant nursing, psychology or legal or other experience.

[13] Acting Presidential Member Orr went on the discuss the interaction between the MH Act s 58, and s 10(2) of the Human Rights Act 2004 (Human Rights Act), which provides that "no-one may be subject to medical... treatment without his or her free consent", as well as the right to freedom of movement. This Tribunal agrees with and adopts the Acting Presidential Member's observations about the interpretation of s 58 of the MH Act.

[16] Mental Health Act s 5(c)