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[2003] QMHC 8
respondent. Appeal dismissed. The Mental Health Review Tribunal's decision confirming the involuntary treatment order was left undisturbed ([1], [17]).
2 cited instruments linked from this judgment.
GMH's illness was in remission and he was taking medication, but the Court concluded that this did not demonstrate sufficient capacity to consent to ongoing treatment. It relied on his limited insight, the episodic nature of his illness, his history of poor compliance and the risk of serious deterioration if treatment stopped. It found no less restrictive way to ensure treatment and dismissed his appeal.
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2,308 words · generated 30/09/2026
In Re GMH [2003] QMHC 008, Wilson J considered an appeal from a Mental Health Review Tribunal decision affirming an involuntary treatment order. The proceeding was numbered 172 of 2002. The hearing took place on 1 July 2003, and the decision was delivered in Brisbane on 19 December 2003. GMH appeared in person. J Tate appeared for the Director of Mental Health. Two psychiatrists assisted the Court.
The judgment describes GMH as having chronic schizoaffective disorder, an episodic illness. Over about ten years, episodes had involved marked irritability, disruptive behaviour and psychotic thinking. The judgment records a history of poor compliance with medication and deterioration when he was non-compliant. He had previously received electroconvulsive treatment and, more recently, depot medication. At the hearing, he was taking oral olanzapine, 2.5 mg nightly, living at home and attending outpatient appointments. He had complied with treatment for about two years, and his illness was in remission ([2]).
The question was whether the Tribunal had correctly affirmed the order under s 14 of the Mental Health Act 2000 (Qld). Section 14 set out multiple criteria. These included mental illness, need for immediate treatment, availability of treatment, a specified risk or likely serious deterioration, no less restrictive way of ensuring appropriate treatment, and either incapacity to consent or unreasonable refusal of proposed treatment ([3]).
The Court treated the evidence of remission and current medication use as important, but not conclusive. The treating and examining psychiatrists raised concerns about whether GMH accepted that he had a mental illness and needed continuing treatment. Wilson J found that his insight remained incomplete even while the illness was in remission, and that he had no insight when the illness was florid ([13]–[16]). The Court found that he lacked capacity to consent and that no less restrictive way would ensure treatment. The appeal was dismissed ([16]–[17]).
The Court's starting point was the statutory test. It stated that an involuntary treatment order could be made or sustained “only if the treatment criteria in s 14” were met ([3]). The listed criteria were expressed as requirements, not as factors that could be balanced against one another. In the Court's application, the appellant's illness required immediate medication, treatment was available at an authorised mental health service, and without treatment he was likely to relapse into psychosis and suffer serious deterioration ([4]).
The judgment does not set out a detailed separate analysis of every element in s 14(d). It identifies likely serious deterioration under paragraph (ii) as met ([4]). The extract does not record a finding that the other limb, imminent risk of harm, was independently established. The statutory alternatives were expressed disjunctively: imminent risk of harm or likely serious mental or physical deterioration (3).
The key contested question concerned capacity. Wilson J acknowledged that the Court had not had the benefit of full submissions on the meaning of “capacity to consent to be treated” under s 14. The judgment then reproduced the Schedule 2 definition: a person must be capable of understanding the nature and effect of decisions about assessment or treatment, making those decisions freely and voluntarily, and communicating them in some way ([7]). This qualification matters. The judgment offers a reasoned application to GMH, but it does not purport to resolve every possible interpretation of the statutory definition.
In considering capacity, the Court discussed In re C and Re MB. The discussion of In re C describes a decision-making analysis involving comprehending and retaining information, believing it, and weighing it to arrive at a choice ([8]). The judgment then sets out factors discussed by the English Court of Appeal in Re MB, including the presumption of capacity and the possibility that impairment may prevent a person from comprehending or weighing information ([9]). These authorities informed the Court's treatment of the capacity question. The judgment's reasoning was not that a psychiatric diagnosis, by itself, establishes incapacity. Its focus was whether GMH's condition affected his understanding and decision-making about treatment.
The evidence presented a tension. GMH was taking medication and, in that everyday sense, appeared to be consenting. One psychiatrist said he understood what the medication was for and understood its side effects. That psychiatrist also described him as equivocal about what would happen if he stopped taking it. Another psychiatrist considered his belief that treatment had helped him insufficiently firm, and thought that without an order he might stop medication and relapse ([13]). His treating psychiatrist considered ongoing compliance to be linked to the continuing possibility of detention ([14]). The assisting psychiatrists regarded his consent as fragile and not based on full understanding or acceptance of his illness ([15]).
Wilson J did not treat compliance alone as proof of capacity. The Court accepted that the illness was episodic and that consent should be assessed “in longitudinal terms” rather than at only one point in time ([15]). It found that GMH did not fully acknowledge either his illness or the need for continuing treatment, even during remission. On that basis, it found incapacity ([16]). It separately found that no less restrictive means would ensure treatment, linking that conclusion to the evidence about likely cessation of medication and relapse ([13]–[16]).
The judgment applies the statutory framework in the Mental Health Act 2000 (Qld), as it stood for the proceeding. The relevant provision, s 14, made the order dependent on satisfaction of each listed treatment criterion ([3]). The extract should not be read as a statement of the present Queensland statutory framework: it concerns the 2000 Act and supplies no subsequent legislative history.
For capacity, Schedule 2 defined the concept through three abilities: understanding the nature and effect of relevant decisions, deciding freely and voluntarily, and communicating decisions ([7]). The Court noted that full submissions about the meaning of “capacity to consent” had not been made. Its discussion therefore draws on the statutory language and authorities without presenting itself as a comprehensive statutory interpretation.
The judgment's treatment of In re C and Re MB places emphasis on functional decision-making rather than diagnosis alone. The relevant questions include whether the person can understand material treatment information and use or weigh it in reaching a decision ([8]–[9]). Wilson J applied this material to the particular evidence about GMH's insight, the episodic nature of his disorder and his fragile consent. The result was that apparent treatment compliance during remission did not answer the capacity issue by itself ([13]–[16]).
The judgment also makes the less restrictive criterion consequential. Even after finding incapacity, the Court had to address whether appropriate treatment could be ensured by a less restrictive means. It concluded that it could not in the circumstances described ([16]). The judgment does not develop a general catalogue of less restrictive alternatives or prescribe a universal method for evaluating them. Its reasoning is tied to the evidence before it.
No “after” state of the law can be established from this judgment alone. The source provides no account of later amendments, later Queensland cases, or subsequent judicial treatment of Re GMH. Any claim about the current law or the precedent's later reception would require sources beyond the supplied judgment.
At [3], Wilson J says an order may be made or sustained “only if” the s 14 criteria are met. In plain English, the statutory requirements operate as a threshold: the order needs a basis in each relevant criterion, rather than being justified simply because treatment might be beneficial.
At [4], the Court says that without treatment GMH would “very likely have a relapse of psychosis requiring medical intervention and possibly admission to hospital.” This explains why the Court treated immediate treatment and likely serious deterioration as established. It is a finding about the evidence in this case, not a general prediction applicable to every person with schizoaffective disorder.
At [7], the Court reproduces the Schedule 2 definition of capacity. In plain English, the statutory definition asks whether the person can understand decisions, make them freely and voluntarily, and communicate them. The judgment also expressly recognises the limits of its discussion: full submissions on the meaning of capacity had not been available.
At [15], the assisting psychiatrists say consent should be assessed “in longitudinal terms and not just at a particular cross-sectional moment in time.” In plain English, the Court considered the history and course of the illness, not only the fact that GMH was taking medication on the hearing date. This is particularly significant because the judgment described the condition as episodic and in remission at the time.
At [16], Wilson J finds that GMH did not fully acknowledge his illness or the need for continuing treatment, even in remission, and concludes that he lacked capacity. The Court then finds no less restrictive way to ensure appropriate treatment. This passage gives the central reasoning for dismissing the appeal, but it remains an application to the evidence recorded in the judgment.
At [17], the Court says the Tribunal's decision was “clearly correct” and dismisses the appeal. The disposition is therefore straightforward: the appeal did not disturb the Tribunal's confirmation of the involuntary treatment order.
The judgment is most directly relevant to cases involving the statutory criteria in s 14 of the Mental Health Act 2000 (Qld), where capacity to consent and the availability of a less restrictive treatment arrangement are contested. Its factual setting included a serious episodic illness, past deterioration associated with non-compliance, current compliance during remission, and professional evidence that the person's acceptance of illness and need for ongoing treatment was incomplete ([2], [13]–[16]).
A particularly relevant feature is the difference between outward compliance and the person's understanding or acceptance of treatment. GMH took medication at the time, but the Court considered whether his consent was sufficiently informed and robust in light of his limited insight and the risk of relapse ([13]–[16]). The judgment may therefore be relevant where the evidence raises a question about whether current treatment-taking reflects capacity, fragile agreement, or compliance dependent on the order.
The decision also addresses the temporal dimension of capacity for an episodic condition. The assisting psychiatrists recommended longitudinal assessment, and Wilson J accepted that approach in the circumstances ([15]–[16]). The judgment does not establish that capacity must always be assessed longitudinally, or that episodic illness necessarily removes capacity. Its reasoning depends on the evidence in the particular case.
The statutory condition concerning less restrictive means is also central. The Court found no less restrictive way to ensure appropriate treatment after considering the evidence of likely treatment cessation and relapse ([13]–[16]). The judgment is less directly informative where there is evidence of a workable less restrictive arrangement, because the supplied text does not examine such an alternative in detail.
The supplied material contains no subsequent decisions discussing or applying Re GMH. It therefore does not establish whether later courts followed, distinguished, limited or otherwise treated the decision. The judgment itself cites Norfolk & Norwich Healthcare (NHS) Trust v W [1996] 2 Fam Law R 613 in the catchwords, but the extract does not identify a particular proposition from that case or explain how it affected the result.
The judgment identifies several authorities in its own discussion. It considers In re C in explaining approaches to understanding treatment information ([8]) and Re MB in setting out factors relevant to competence ([9]). It discusses R (N) v Dr M & Ors [2002] EWCA Civ 1789; [2003] 1 WLR 562, including the fact that the capacity finding at first instance had not been challenged on appeal ([10]). The catchwords describe the first-instance decision, R (N) v Dr M & Ors [2002] EWHC 1911, as applied. It also cites Re Bridges [2001] 1 Qd R 574 ([11]). These references establish the authorities used or mentioned in this judgment, not how later courts treated Re GMH.
The distinction is important for research use. A citation in the catchwords or a discussion of an earlier authority does not provide evidence of later appellate approval of Re GMH. Establishing its later precedential treatment would require examining subsequent case law, which is not part of the supplied source.
The judgment expressly leaves some interpretive room. At [7], Wilson J notes the absence of full submissions on the statutory meaning of capacity to consent. The decision applies Schedule 2 to the evidence but does not comprehensively resolve how each part of that definition should operate in other circumstances.
The relationship between current treatment-taking and capacity is also fact-sensitive in the judgment. GMH was taking medication, and a psychiatrist said he understood its purpose and side effects, yet the Court found incapacity based on his incomplete insight and the longitudinal evidence ([13]–[16]). The judgment does not set out a general threshold for how much understanding or acceptance is required, or how to treat a person who understands the information but rejects the diagnosis.
The decision also leaves open how to evaluate alternative, less restrictive arrangements in cases with different evidence. The Court found there was no way to ensure appropriate treatment that was less restrictive than an order, but it does not identify a general checklist or explain how a specific alternative would be assessed ([16]).
Finally, the judgment's factual findings should not be detached from its statutory setting. It concerns the Mental Health Act 2000 (Qld), a particular tribunal decision, and evidence about GMH's condition and treatment. The extract does not establish the current text of Queensland mental health legislation, later judicial treatment of the case, or how the same facts would be assessed under any later statutory regime.
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The Crown Solicitor for the Director of Mental Health
[1] WILSON J: This is an appeal against a decision of the Mental Health Review Tribunal made on [...] confirming an involuntary treatment order.
[2] The appellant [...] suffers from a chronic schizoaffective disorder. It is an episodic illness. Over the past ten years or so it has been characterised by periods of marked irritability, disruptive behaviour and the development of psychotic thinking. He has a history of poor compliance with medication, and when he is non-compliant, his condition deteriorates. Many years ago he was given electroconvulsive treatment, and more recently depot medication. At the time of the hearing he was on oral medication (olanzapine 2.5 mg nightly). He was living at home and attending outpatient appointments with his treating psychiatrist [...]. He had been compliant with treatment for about two years, and the illness was in remission.
[3] An involuntary treatment order may be made and sustained only if the treatment criteria in s 14 of the Mental Health Act 2000 are met. Those criteria are all of the following -
(b) the person's illness requires immediate treatment;
(c) the proposed treatment is available at an authorised mental health service;
(i) there is an imminent risk that the person may cause harm to himself or herself or someone else; or
(ii) the person is likely to suffer serious mental or physical deterioration;
(e) there is no less restrictive way of ensuring the person receives appropriate treatment for the illness;
(i) lacks the capacity to consent to be treated for the illness; or
(ii) has unreasonably refused proposed treatment for the illness."
[4] It is clear on the evidence that the appellant has a mental illness which requires immediate treatment in the form of medication. In the absence of treatment, he would very likely have a relapse of psychosis requiring medical intervention and possibly admission to hospital. The proposed treatment is available at an authorised mental health service. Thus the first three criteria and paragraph (ii) of the fourth criterion are met.
[7] Regrettably the Court did not have the benefit of full submissions on the meaning of "capacity to consent to be treated" in s 14 of the Mental Health Act 2000. The following definition appears in Schedule 2 to the Act:
"capacity", for a person, means the person is capable of -
(a) understanding the nature and effect of decisions about the person's assessment, treatment or choosing of an allied person; and
(b) freely and voluntarily making decisions about the person's assessment, treatment or choosing of an allied person; and
[8] In In re C [1994] 1 WLR 290 Thorpe J of the Family Division of the English High Court granted an injunction preventing the amputation of the plaintiff's leg without his consent. The plaintiff was a 68 year old man who was suffering from chronic schizophrenia. He was suffering from an ulcerated foot which had become gangrenous, and a surgeon had advised treatment by amputation of the leg below the knee, failing which his chance of survival was small. The plaintiff refused his consent to amputation, but agreed to conservative treatment, as a result of which his condition improved. However, the hospital refused to give an undertaking that the leg would not be amputated at some time in the future. The patient's mental illness was marked by grandiose and persecutory delusions as well as incongruity of affect, but there was no direct link between his refusal to consent to amputation and his delusions. His Lordship dealt with the issue of the capacity which enables an individual to refuse treatment in this way (at p. 295):
"I think that the question to be decided is whether it has been established that C's capacity is so reduced by his chronic mental illness that he does not sufficiently understand the nature, purpose and effects of the proffered amputation.
I consider helpful Dr Eastman's analysis of the decision-making process into three stages: first, comprehending and retaining treatment information; second, believing it and, third, weighing it in the balance to arrive at choice. ... Applying that test to my findings on the evidence, I am completely satisfied that the presumption that C has the right of self-determination has not been displaced. Although his general capacity is impaired by schizophrenia, it has not been established that he does not sufficiently understand the nature, purpose and effects of the treatment he refuses. Indeed, I am satisfied that he has understood and retained the relevant treatment information, that in his own way he believes it, and that in the same fashion he has arrived at a clear choice."
[9] In In re MB [1997] 2 Fam Law R 426 at 437 the English Court of Appeal said that the question of competence should be approached bearing the following factors in mind, which were not intended to be determinative in every case -
"1. Every person is presumed to have the capacity to consent to or to refuse medical treatment unless and until that presumption is rebutted.
2. A competent woman who has the capacity to decide may, for religious reasons, other reasons, for rational or irrational reasons or for no reason at all, choose not to have medical intervention, even though the consequence may be the death or serious handicap of the child she bears, or her own death. In that event the courts do not have the jurisdiction to declare medical intervention lawful and the question of her own best interests objectively considered, does not arise.
3. Irrationality is here used to connote a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided it [sic] could have arrived at it. As Kennedy and Grubb (Medical Law, Second Edition 1994) point out, it might be otherwise if a decision is based on a misperception of reality (e.g. the blood is poisoned because it is red). Such a misperception will be more readily accepted to be a disorder of the mind. Although it might be thought that irrationality sits uneasily with competence to decide, panic, indecisiveness and irrationality in themselves do not as such amount to incompetence, but they may be symptoms or evidence of incompetence. The graver the consequences of the decision, the commensurately greater the level of competence is required to take the decision: Re T [1992] EWCA Civ 18; [1993] Fam 95, Sideaway [1985] UKHL 1; [1985] AC 871 at p. 904 and Gillick v West Norfolk and Wisbech Area Health Authority [1985] UKHL 7; [1986] 1 AC 112, 169 and 186.
4. A person lacks capacity if some impairment or disturbance of mental functioning renders the person unable to make a decision whether to consent to or to refuse treatment. That inability to make a decision will occur when: (a) the patient is unable to comprehend and retain the information which is material to the decision, especially as to the likely consequences of having or not having the treatment in question; (b) the patient is unable to use the information and weigh it in the balance as part of the process of arriving at the decision. If, as Thorpe J observed in Re C (supra), a compulsive disorder or phobia from which the patient suffers stifles belief in the information presented to her, then the decision may not be a true one. As Lord Cockburn CJ put it in Banks v Goodfellow (1870) LR 5 QB 549 at p. 569:- 'One object may be so forced upon the attention of the invalid as to shut out all others that might require consideration.'
5. The 'temporary factors' mentioned by Lord Donaldson M.R. in Re T (supra.) (confusion, shock, fatigue, pain or drugs) may completely erode capacity but those concerned must be satisfied that such factors are operating to such a degree that the ability to decide is absent.
6. Another such influence may be panic induced by fear. Again careful scrutiny of the evidence is necessary because fear of an operation may be a rational reason for refusal to undergo it. Fear may be also, however, paralyse the will and thus destroy the capacity to make a decision."
[10] In R (N) v Dr M & ors [2002] EWCA Civ 1789; [2003] 1 WLR 562 the claimant was a restricted patient detained in hospital. She was presented by a responsible medical officer with a treatment plan for a psychotic illness which included the administration of anti-psychotic medication by injection. She refused her consent to that treatment, and obtained an opinion from an independent consulting psychiatrist who advised her that she was very unlikely to be psychotic and therefore should not be given anti-psychotic medication, and that she had the capacity to make treatment decisions. The responsible medical officer obtained a second opinion from another psychiatrist who issued a certificate under the relevant mental health legislation stating that she was suffering from paranoid psychosis or severe personality disorder and required regular anti-psychotic treatment. He considered that she did not have the capacity to consent to treatment. The claimant unsuccessfully sought judicial review of the decisions of the responsible medical officer and the doctor who gave the second opinion and issued the certificate. The judge at first instance determined that she lacked capacity to consent to treatment, applying the three part test approved in In Re C. See [2002] EWHC 1911 at paras [60] - [72]. That part of his decision was not challenged on appeal.
[11] See also the helpful discussions by Professor John Devereux of the University of Queensland Law School "Competency to Consent to Treatment: An Introduction", in Freckleton IR & Petersen K, Controversies in Health Law, Federation Press, New South Wales, 1999, and "Problems with the Doctrine of Consent", in Phillips Griffiths A, Philosophy, Psychology and Psychiatry (Royal Institute of Philosophy Supplement, No 37), Cambridge University Press, 1995, pp 191 - 195, and the decision of Ambrose J on "capacity" under the Powers of Attorney Act 1998 (Qld) in Re Bridges [2001] 1 Qd R 574.
[12] As assessment of the appellant's level of insight into his mental illness is critical to the determination whether the last two criteria in s 14 of the Mental Health Act 2000 are met. In answer to a question by the appellant as to the meaning of insight, Dr A [one of the examining psychiatrists] referred to three distinct levels of insight -
(i) the most basic level - acknowledgment that the has an illness and that the illness has caused him difficulties;
(ii) the next level - acknowledgment that treatment (continuing treatment) is necessary;
(iii) a deeper level - an understanding of the underlying mechanisms of his illness.
[13] At the time of the hearing the appellant had been taking the oral medication which had been prescribed for him. In a sense he was consenting to the treatment, but both Dr A and Dr B [another examining psychiatrist] doubted that he really acknowledged having a mental illness. In oral evidence Dr A said -
"Well, I don't think it can be said that he lacked - at the time I saw him - he lacked the capacity to consent in the sense that one ordinarily uses the term consent for treatment. He understands what the treatment is for, he understands the side effects. He understands what - well, he says he understands why he is taking the medication.
... And an understanding of what might happen if he doesn't take the medication, although he's equivocal on that. I don't think he considered anything would happen because he doesn't think at the back - at one level he doesn't acknowledge he has a mental illness but certainly if you take his words he says he has consent.
... He's, in fact, consenting to the treatment now, in a sense, because he's taking it.
"In my opinion there is no less restrictive way of ensuring that he receives appropriate treatment. I believe that his insight is affected to the extent that while he can acknowledge to some extent that medication has been beneficial, he does not believe he has a mental illness. His continued writings about treatment, forcible treatment, psychiatrists and Queensland Health reflect an underlying overvalued idea that he does not have mental illness and therefore does not need treatment for his disorder. In my opinion his stated belief that he continued to take medication because it has been of some benefit or because he has promised to take it are not strongly held beliefs and it is likely that without an involuntary treatment order, he would at some stage stop taking medication and this would lead to a relapse with harmful consequences."
And Dr A observed in oral evidence that in the absence of blood tests it would only be once he had a relapse that his failure to take his medication would become apparent.
[14] His treating psychiatrist [...], wrote [...] -
"I believe that [the appellant's] continued compliance (and therefore continued well-being) is a function of ongoing liability to detention. I therefore strongly recommend this be continued in the interests of his own well-being and (for reasons outlined in earlier reports) for the safety of others."
[15] The assisting psychiatrists both advised me that his consent to treatment was at best fragile and not based on a full understanding or acceptance of his illness. Dr Grant advised that because of the episodic nature of his illness his consent to treatment should be assessed in longitudinal terms and not just at a particular cross-sectional moment in time.
[16] I am satisfied that even when the appellant's mental illness is in remission he does not fully acknowledge that he has a mental illness or that continuing treatment for it is necessary. That is, even when his mental illness is in remission, he does not have full insight into it. When the illness is florid, he has no insight. Accordingly, I find that he lacks the capacity to consent to treatment. In the circumstances there is no way of ensuring he receives appropriate treatment less restrictive than an involuntary treatment order.
[17] The decision of the Mental Health Review Tribunal confirming the involuntary treatment order was clearly correct. The appeal should be dismissed.
Norfolk & Norwich Healthcare (NHS) Trust
W [1996] 2 Fam Law R 613, cited
Appeal dismissed. The Mental Health Review Tribunal's decision confirming the involuntary treatment order was left undisturbed ([1], [17]).