1. The Tribunal makes a Psychiatric Treatment Order in relation to [BC].

1. [BC] must comply with any determination made by the Chief Psychiatrist or delegate under section 62 of the Mental Health Act 2015.

1. Unless sooner revoked, this order has effect for 3 months.

(a) This order will be reviewed on its own motion prior to expiry.

Note: The full text of the Order and the accompanying statement was provided to the relevant persons under the Mental Health Act 2015.

1. On 31 May 2018, three members of the ACT Civil and Administrative Tribunal (the Tribunal) made a further psychiatric treatment order (PTO) under the Mental Health Act 2015 (Mental Health Act) in relation to BC.[1] The PTO was for a period of three months unless the PTO is revoked sooner. Brief oral reasons were given at the time the PTO was made, and the basis for making the PTO was set out in a statement on the written order signed on that date.
2. On 4 June 2018, the solicitor who represented BC at the hearing requested written reasons for the decision. These are those reasons.
3. In preparing these reasons the Tribunal has drawn on:
   • (a) the written report dated 29 May 2018 by a psychiatrist who saw BC on 3 May 2018 and who recommended that an additional PTO be made (the psychiatrist's report);
   • (b) oral statements made at the hearing on 31 May 2018 by BC, BC's mother, BC's case manager in the relevant mental health team, a person associated with a residential mental health program in which BC participated, BC's solicitor, and a representative of the Public Advocate (as recorded in the transcript of the hearing obtained subsequently); and
   • (c) the written order.
4. Each participant in the proceedings is referred to by their position or their professional role in relation to BC, in order to reduce the prospect of these reasons for decision being used to identify BC.
5. For the purpose of these reasons for decision, reference will be made to the types of evidence on which the Tribunal relied to make findings of fact on the balance of probabilities, rather than quoting the evidence in detail. BC and other participants in the hearing had access to the written material and heard the oral evidence and submissions. It is unnecessary to repeat that material here.
6. The Tribunal notes that where written reasons are sought for a decision given orally the written reasons can elaborate upon, but should be consistent with, the earlier oral reasons.
7. Recently a differently constituted Tribunal gave written reasons in a guardianship matter[2] and quoted the following passage from the judgment of Bromberg J of the Federal Court in Negri v Secretary, Department of Social Services[3] concerning the delivery of detailed written reasons for decision in circumstances similar to those in relation to the present application:

As long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. ...

The view that I have reached is consistent with the practical constraints of a busy tribunal, not wholly constituted by lawyers. It accommodates the desirable goal of the Tribunal giving unelaborate ex tempore oral reasons in appropriate matters.[4]

1. Section 58(1) of the Mental Health Act provides that section 58 applies to a person in relation to whom an application for a mental health order has been made under Part 5.2 of that Act. An application for a PTO in relation to BC was made by a psychiatrist on 29 March 2018. On 3 April 2018, a differently constituted Tribunal made a PTO for a period of two months. That order was expressed to be reviewed on the Tribunal's own initiative prior to its expiry.
2. Section 58(2) sets out the conditions that must be met if the Tribunal is to make a PTO in relation to a person.

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

(a) the person has a mental illness[5]; and

(i) the person does not have decision-making capacity[6] 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

(f) if an application has been made for a forensic mental health order - the ACAT is satisfied that a psychiatric treatment order should be made instead; 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.

1. Paragraph (f) of section 58(2) did not apply in relation to BC.

1. Based on the written and oral evidence and submissions before it on 31 May 2018, the Tribunal made the following findings in relation to BC.
2. The psychiatrist's report stated that BC has a mental illness, and gave an initial diagnosis, but noted that the psychiatrist had advised BC that the psychiatrist needed more time to get to know BC for clarification of the diagnosis. According to the report, the psychiatrist would see BC again to continue with the assessment and review of the diagnosis. The report recorded a change in the medication being administered to BC which seemed to be beneficial.
3. At the hearing, BC's case manager acknowledged that BC was "questioning whether that was true that he was psychotic" at the relevant time.[7]
4. BC was concerned about the initial diagnosis of his mental illness. He informed the Tribunal that if he were to "come under any mental illness" he would say that if he was "properly diagnosed" it would be for a different condition than that identified in the psychiatrist's report.[8] He explained why he considered the basis of the medical assessment of a psychotic episode was incorrect,[9] but indicated that the medication currently prescribed had been "helpful".[10]
5. On the basis of the psychiatrist's report, having heard from BC and his case manager, and in the absence of evidence to the contrary, the Tribunal was satisfied that BC has a mental illness because he has a condition that seriously impairs (either temporarily or permanently) his mental functioning in areas including thought and mood which is characterised by the presence of symptoms including serious disturbance of mood.[11]
6. The psychiatrist's report listed what, in the psychiatrist's opinion, BC understood and did not understand in relation to a decision about BC's treatment, care or support. The report explained why the psychiatrist made that overall assessment in relation to BC's lack of decision-making capacity. At the hearing, BC's case manager said that BC had "indicated to me that [BC] has gained a bit more insight into what has gone wrong in the first place".[12]
7. On the basis primarily of the psychiatrist's report, but having regard also to the statements made at the hearing, the Tribunal was satisfied that BC does not have decision-making capacity to consent to treatment, care or support because he cannot weigh up the consequences of the main choices about a decision concerning his treatment, care or support.[13]
8. Much of the hearing was devoted to whether BC was refusing to receive treatment care or support.[14] According to the psychiatrist's report, BC was refusing to receive treatment, care or support on the basis that BC did not think that he has a mental illness and does not think he needs medication.
9. At the hearing, BC's case manager said that he had met with BC after the psychiatrist's report was completed and was happy that there had been compliance with all medication.[15] He said that BC had complied with other appointments three or four times.[16] The case manager did not say that aspects of the psychiatrist's report were inaccurate. Indeed, the case manager said that the psychiatrist had made "the best judgment" with the material the psychiatrist had on 3 May 2018. However, the case manager did not seek a further PTO because he was reassured that BC would stay in treatment. According to the case manager, BC seemed "to be much more accepting now" than at the time he saw the psychiatrist, and BC gave the case manager "a reassurance" that BC would stay in treatment.[17] The case manager was "confident that he's capable of managing it without" a PTO[18] and said that BC was "completely participating in everything that has been recommended thus far."[19]
10. The person from the transitional accommodation program said that BC had "always indicated that he would continue taking his medication and attend appointments."[20]
11. As noted earlier, BC did not agree with the psychiatrist's initial diagnosis and advanced a possible alternative diagnosis for his symptoms. He said that he takes his medication "on the basis of the prescription that I'm given" and would feel under less stress if there were no PTO. That stress he attributed to not being listened to or understood, and the recollection of abuse that he said he had suffered.[21]
12. When asked by the Tribunal whether, if the psychiatrist were to confirm the initial diagnosis rather than that advanced by BC, he would voluntarily continue with treatment for the condition BC replied:

I would probably suggest finding another doctor; someone who actually gets my treatment right because that could be really like the opposite of beneficial to me. Really bad in some way because they might give me something worse by treating me with medication that's for a different condition.[22]

1. When asked whether, as a voluntary patient, he would "really insist on having the treatment that you thought was right?" BC replied "Yes."[23] He continued:

I would get a different doctor if I was being told that I have [the diagnosed condition] which seems way out of the box for me.[24]

1. BC's solicitor and the Public Advocate's representative submitted that a PTO should not be made because, in essence, BC is not refusing treatment for the symptoms of his mental illness and is engaging and would continue to engage in treatment voluntarily. They pointed to his belief that the current medication has lessened his symptoms, that he is engaging with the mental health team, that he wants to demonstrate that he can do things on his own for his personal benefit, and that he has a supportive family and other support.
2. The Tribunal acknowledged the support BC received, and commended BC on the progress he had made. However, having considered all of the evidence (including the psychiatrist's report) and the submissions, the Tribunal was satisfied that BC disagrees with the current diagnosis of his mental illness. Although he accepts treatment, he indicated that, at this stage, he would not reliably take prescribed medication if he disagreed with the psychiatrist's diagnoses. The Tribunal was not satisfied that, in the absence of a PTO, BC would voluntarily continue to accept the treatment in relation to a diagnosis with which he disagreed. Accordingly, the Tribunal concluded that BC refuses the treatment determined in relation to him.
3. On the basis of material contained in the psychiatrist's report, the Tribunal believed on reasonable grounds that because of BC's mental illness BC is likely to do serious personal harm as a result of misadventure.[25]
4. On the basis of material contained in the psychiatrist's report, and statements made by BC and his case manager at the hearing, the Tribunal was satisfied that psychiatric treatment, care or support is likely to result in an improvement in BC's psychiatric condition.[26]
5. Having regard to all of the evidence and the submissions made, the Tribunal was satisfied that the treatment, care or support to be provided under the PTO could not be adequately provided in another way that would involve less restriction of BC's freedom of choice and movement.[27]

Circumstances in which the PTO would be revoked

1. The PTO was made for a period of three months unless it is revoked sooner.
2. As the Tribunal observed at the hearing, section 64 of the Mental Health Act provides for the earlier revocation of a PTO in specified circumstances. If the chief psychiatrist is satisfied that the person is no longer a person in relation to whom the Tribunal could make a PTO, the chief psychiatrist must take all reasonable steps to give notice to the person's carer and/or the person's nominated person.[28] That notice must:
   • (a) include the reasons why the chief psychiatrist is satisfied that the person is no longer someone in relation to whom the Tribunal could make a PTO;
   • (b) ask whether the carer or nominated person is aware of any other information that may be relevant to whether the PTO continues to be appropriate for the person;
   • (c) state that (subject to consideration of any such other information) the chief psychiatrist must tell the Tribunal and public advocate that the chief psychiatrist is satisfied that the person is no longer someone in relation to whom the Tribunal could make a PTO and the Tribunal must review the PTO;
   • (d) tell the carer and/or nominated person that they are entitled to make a submission to the Tribunal review of the PTO.[29]
3. If, having taken into account any information given by the carer or nominated person that may be relevant to whether the PTO continues to be appropriate, the chief psychiatrist is still satisfied that the person is no longer a person in relation to whom the Tribunal could make a PTO, the chief psychiatrist must tell the Tribunal and the public advocate in writing about their opinion (including the reasons for that opinion) and the details of any information given to the chief psychiatrist by the carer or nominated person.[30]
4. If the Tribunal receives a notice from the chief psychiatrist under section 64 of the Mental Health Act, the Tribunal must review the PTO within 72 hours of receiving that notice.[31] A review may be conducted without a hearing.[32] If the Tribunal is satisfied that the person is no longer a person in relation to whom the Tribunal could make a PTO, the Tribunal must revoke the PTO in relation to that person.[33]
5. At the hearing, having announced the decision to make a further PTO, the Tribunal noted that BC had a scheduled appointment on 7 June 2018 with the psychiatrist who prepared the psychiatrist's report. The Tribunal observed that, as a result of that meeting, the diagnosis would be reviewed and might be revised, treatment might be continued or adjusted. If BC was happy to receive treatment voluntarily, the psychiatrist would be obliged to seek revocation of the PTO.

Legal Aid ACT

[1] The letters BC have been used to preserve the anonymity of the person the subject of the PTO consistently with section 194 of the Mental Health Act 2015 and section 40 of the ACT Civil and Administrative Tribunal Act 2008. The letters bear no resemblance to the initials of the subject person's name.

[2] In the Matter of LQL [2018] ACAT 53

[3] Negri v Secretary, Department of Social Services [2016] FCA 879

[4] Negri v Secretary, Department of Social Services [2016] FCA 879 at [27], [29]

[5] "Mental illness" is defined in section 10 of the Mental Health Act 2015

[6] "Decision-making capacity" is defined in section 7 of the Mental Health Act 2015, see also section 8

[11] Mental Health Act 2015 Section 58(2)(a)

[13] Mental Health Act 2015 section 58(2)(b)(i)

[17] Transcript of proceedings, pages 4-5

[19] Transcript of proceedings, page 10

[22] Transcript of proceedings, page 11

[25] Mental Health Act section 58(2)(c)(i)

[26] Mental Health Act section 58(2)(e)(i)

[27] Mental Health Act section 58(2)(g)

[28] Mental Health Act section 64(1), (2)

[29] Mental Health Act section 64(1)(3)

[30] Mental Health Act section 64(1)(4)

[31] Mental Health Act section 79(3)

[32] Mental Health Act section 79(4)

[33] Mental Health Act section 79(5)