The applicant contended that her mental ill health stemmed from trauma of past events. She submitted that she was now able to manage her mental health as a result of a greater awareness and knowledge of her mental health and through familial support. She contended that the prescribed medication was resulting in adverse side effects.

The respondent contended that the applicant required treatment and would not submit to it voluntarily and submitted that the community treatment order should remain in place.

• The correct and preferable decision is that the applicant be subject to a Level 2 Community Treatment Order. The Tribunal is satisfied that the criteria under s 16(1) of the Mental Health Act 2009 for treatment are met;
• Subject to considering whether the treatment is the least restrictive way of achieving safety, the Tribunal does not have a role in directing the type of treatment that a person should have, but whether treatment is required;
• The applicant maintained fixed beliefs and was not receptive to new information. Although false beliefs are not necessarily incompatible with understanding, retaining or using information relevant to a decision about treatment, they were in this case.

Internal review - Mental Health - Level 2 Community Treatment Order - Existence of mental illness - Psychosis - Whether treatment required - Impaired decision-making capacity - Least restrictive means

Mental Health Act 2009 ss 6, 7, 16, 70, 83A

South Australian Civil and Administrative Tribunal Act 2013 ss 43, 70

EVX v Department for Health and Wellbeing [2023] SACAT 38

Ms V Rajaramanan, Crown Solicitor's Office, appeared for the respondent

This is an edited version of the Tribunal's decision pursuant to s 60 of the South Australian Civil and Administrative Tribunal Act 2013. Some of the parties and participants of the proceedings have been de-identified in accordance with the Tribunal's anonymisation policy. Other facts and details that may lead to the identification of any person may have also been anonymised or omitted. These changes do not affect the Tribunal's decision or its reasons for decision.

Made under the South Australian Civil and Administrative Tribunal Act 2013 s 70(6)(a)

1. These proceedings concern the applicant, OWH. She is a 26 year old woman who lives at home with her parents, siblings, and seven year old son. She works as a disability support worker. She is of South Sudanese origin.
2. The applicant has been hospitalised on a number of occasions in Australia for acute mental ill-health.
3. On 4 December 2024, a Tribunal Member of the South Australian Civil and Administrative Tribunal made an order that the applicant be subject to a Level 2 Community Treatment Order under the Mental Health Act 2009 ('MHA') for a period of 12 months. It will expire on 3 December 2025. This order will be referred to in this decision as the "original decision".
4. The effect of the original decision is that the applicant is required to have treatment for a mental illness whether she consents to it or not, and that treatment is administered to her outside of a hospital setting. "Level 2" refers to the duration of the order; it expires after 12 months of being in place unless it is revoked on an earlier date.[1]
5. Such an order can only be made where the Tribunal is satisfied that the requirements set out in s 16 of the MHA have been established. The Tribunal was so satisfied. These requirements will be discussed in detail later in this decision.
6. The applicant disagrees with the original decision. On 16 December 2024, she requested an internal review. An internal review is a separate, fresh consideration of the original decision by different Tribunal Members.[2] On this occasion, the Tribunal was constituted by the President and an experienced psychiatrist Tribunal Member.
7. The other party to the review is the Department for Health and Wellbeing. It is the employer of the medical practitioners who applied for the original decision to be made. Its position is that the original decision was the correct and preferable decision on the evidence put to the Tribunal, and remains the correct and preferable decision today.

1. An application for internal review is governed by s 83A of the MHA and s 70 of the South Australian Civil and Administrative Tribunal Act 2013 ('SACAT Act').
2. The applicant does not have an automatic right to an internal review. However, in a case such as this, the question as to whether she should be granted permission to proceed would entail the same consideration as would the substantive review. For efficiency, the Tribunal has decided to combine the two steps into one hearing, without objection by the Department.
3. The applicant was represented by Ms Herriman, who filed a comprehensive written submission. The applicant attended the hearing along with her father, who also made an oral statement to the Tribunal.

Requirements under the Mental Health Act 2009

1. When it performs its functions, the Tribunal must have regard to, and has had regard on internal review, the objects and guiding principles of the MHA. These are set out in ss 6 and 7 of the Act and include the requirement that the Tribunal take into account that mental health services should be provided on a voluntary basis as far as possible, and otherwise in the least restrictive way and in the least restrictive environment that is consistent with their efficacy and with public safety.[3]

1. Section 16(1) of the MHA provides that the Tribunal was only entitled to make the Level 2 Community Treatment Order if it was satisfied that:
   1. the applicant has a mental illness;
   2. because of the mental illness, the applicant requires treatment for her own protection from harm (whether physical or mental, and including harm involved in the continuation or deterioration of the person's condition) or for the protection of others from harm; and
   3. the applicant has impaired decision-making capacity relating to appropriate treatment of her mental illness; and
   4. there is no less restrictive means than a community treatment order of ensuring appropriate treatment of the applicant's illness.
2. In the original hearing, the applicant was Dr Mubarak, psychiatry registrar, and OWH's key worker, Mr Evans. OWH was served with a notice to attend the original hearing but she did not attend. She was telephoned but did not answer and her father advised that she was at work. The Tribunal elected to proceed with the hearing, as it is entitled to do under s 43(2)(f) of the SACAT Act. Therefore, the Tribunal did not have the benefit of her evidence, and she did not have the benefit of participating in the decision-making process. At the original hearing, the Tribunal had regard to the report prepared by Dr Mubarak, psychiatric registrar, dated 30 October 2024, who also gave oral evidence. The Tribunal also had regard to an endorsed treatment and care plan in relation to OWH. The Tribunal Member asked questions of the applicants in respect of the four matters in relation to which she was required to be satisfied under s 16 of the MHA. At the conclusion of the hearing, the Tribunal Member gave an ex tempore decision and a copy of that decision was sent to all parties including OWH.
3. As indicated above, OWH applied for an internal review of the original decision.

The two positions on internal review contrasted

1. The applicant does not deny that she has had problems with her mental health in the past. She attributes these, and her past behaviour, to the trauma of various past events. One of those events concerns the circumstances of her relationship with the father of her child and its breakdown. The applicant considers that she now has a better understanding of her mental health and that she is fully recovered. She believes that, with the support of her family, and by recognising the onset of any deterioration in her mental health, she can manage her mental health without the need for the Tribunal's orders requiring her to submit to involuntary treatment.[4]
2. The applicant advanced two further reasons for wishing to be relieved of the obligation to submit to the monthly depot of Paliperidone 100mg.
3. She says that the medication she is taking has adverse side effects for her. The side effect she most objects to is weight gain. She considers that she has put on a considerable amount of weight since commencing the medication. There are other adverse side effects such as its sedative effect and irregularity of menstruation and constipation, but the weight gain is the effect she finds most distressing.[5]
4. The applicant also said in her oral evidence that being subject to an order is or may be limiting in relation to her career. She submits that she is a respected disability care worker. She considers that she may be disadvantaged in employment by virtue of being subject to the Tribunal's orders.
5. The applicant considers that the orders, and the treatment, are unnecessary and an incursion into her autonomy and should be revoked.[6]
6. The Department's position is that the applicant has a well-established diagnosis of schizoaffective disorder that requires treatment to prevent her from becoming unwell and placing herself in situations in which she is at risk of harm to herself, including financial loss and relationship breakdown, and harm to others when she is experiencing deluded and paranoid cognitions.[7]
7. The task on review is for the Tribunal to consider the evidence against the requirements of the legislation to decide whether the original decision was the correct or preferable one.[8] Subject to considering whether the treatment is the least restrictive way of achieving safety, the Tribunal does not have a role in directing the type of treatment that a person should have, but whether they require treatment.

1. The first issue that the Tribunal must be satisfied of, in accordance with s 16 of the MHA, is whether the applicant has a mental illness as that is defined in the MHA. OWH was admitted to Child and Adolescent Mental Health Services in 2016 for evaluation of possible psychosis.[9] Since then, she has continued to experience psychotic symptoms and persecutory and grandiose delusions from time to time.
2. The applicant's most recent admission to hospital was from 1 January 2024 to 30 January 2024. The admission followed her return to Australia after a trip to South Sudan that she took without her parents' knowledge. On her return she presented at hospital in a state of psychosis.[10] It also emerged that the applicant had been assaulted and robbed whilst she was overseas and had lost a considerable amount of money.
3. Following the hearing of the internal review, the Tribunal adjourned to enable a further medical report to be submitted by the Department because the applicant's current treating practitioner, Dr Lai, was not available to be questioned at the hearing in relation to his views of her diagnosis and treatment needs. The Tribunal received a report from Dr Lai dated 11 April 2025. The parties agreed that a further hearing was not required.
4. As summarised in that report, the applicant was originally thought by treating clinicians to be experiencing bipolar affective disorder. However, in 2021, those treating her diagnosed schizoaffective disorder and that remains her current diagnosis.[11] She has been admitted to hospital on about 11 occasions since 2016. The medical professionals caring for the applicant during her presentations in hospital have observed persecutory delusions, grandiose delusional beliefs, and paranoia and aggression, including towards family members.[12]
5. Diagnosis of a mental illness within the meaning of that term in the MHA,[13] was made or confirmed on the following occasions:
   1. Twice in June 2018 when the applicant was placed on inpatient treatment orders;
   2. As a necessary step in the making of a further inpatient treatment order in July 2018;
   3. An inpatient treatment order in December 2017;
   4. Inpatient treatment orders in January and February 2020;
   5. Inpatient treatment orders in November and December 2021;
   6. An inpatient treatment order in November 2023;
   7. The most recent inpatient order in January 2024.
6. Notably, these diagnoses of the presence of mental illness occurred across four hospitals and ten different psychiatrists or psychiatric registrars.[14]
7. Dr Lai addressed in his report the correlation between the applicant's incidents of psychosis and her non-compliance with recommended treatment. However, it is evident that, having reviewed the diagnoses and the applicant's medical history, he adopts the diagnosis and considers that it continues to operate upon her, though the current treatment has suppressed episodes of psychosis in recent times. The absence of symptoms is consistent with the resolution of a mental illness, but it does not prove that the illness is not present in a latent way.
8. We are satisfied that the applicant has had, and continues to have, a mental illness.

Does the applicant require treatment for the protection from harm?

1. The Tribunal is required to decide whether the applicant requires treatment to protect her from physical or mental harm.[15] The harm to her might include the continuation or deterioration of the condition itself if treatment is not administered. The Tribunal is also required to consider whether a lack of treatment may result in the applicant harming others.
2. One of the types of harm that is possible if the applicant is not treated and relapses, is that she damages her important relationships with her family. This might occur if she were to experience delusions, as she has in the past, that they were trying to harm her. Dr Mubarak thought that this was the case.[16] The family has advised hospital staff that in 2018, she experienced a belief that her real father was an African King. Acting on that belief, Dr Mubarak reports that the applicant "was verbally abusive, agitated and had ended up physically assaulting [her father] and other members of the family".[17] When the applicant was admitted to hospital in December 2019, these beliefs re-surfaced and Dr Mubarak formed the view that her family members were at risk of violence from the applicant.[18]
3. When she was admitted to hospital in 2020, the applicant had been physically aggressive towards her family and punched her 12-year old brother in the face.[19] In relation to her November 2021 admission, the applicant believed that her brother was trying to kill her. She called police. Dr Mubarak reported that the applicant told police that "the rest of her family were plotting against her and attempted to defend herself with a screwdriver".[20] In 2021, these beliefs escalated and the applicant is reported to have kicked her father in the stomach and bit her mother.[21] In hospital, her aggression was required to be controlled through seclusion.[22]
4. Before her admission to hospital in November 2023, the applicant was non-compliant with her depot for a week and became a missing person. She was located at the airport attempting to leave for South Sudan. She was subsequently successful in travelling to South Sudan, and returned in a "floridly psychotic" state and with a leg injury following a motorcycle accident.[23]
5. However, the Tribunal was concerned to ensure that it understood the relationship between the applicant's conduct and the treatment. If the treatment is not capable of mitigating the harmful behaviour, it cannot be said to be required for that purpose. Therefore, the evidence of the link between the potentially harmful behaviour and the treatment, must be clearly established.
6. We were not particularly satisfied that the link had been established until we were apprised of Dr Lai's most recent report dated 11 April 2025. As described above, that report details the events on an admission-by admission basis, in a manner that satisfies the Tribunal of the relationship between the applicant being untreated and the incidents of psychosis.[24]
7. The Department submitted that in addition to psychological harm to herself from the responses of others to her behaviour and the risk that she will in fact hurt someone when unwell, the fact of a further episode of psychosis was, in itself, a harm to her cognitive functioning and wellbeing.
8. On the basis of his expertise, Dr Jureidini was not satisfied that this last proposition finds support in the literature. Ultimately, the issue is not required to be resolved because we are satisfied that the applicant's behaviour when not treated creates a risk of harm to others and a risk of harm to her wellbeing through her relationships and reputation. It has therefore not been necessary to reach a definitive conclusion as to whether further episodes of psychosis are a harm in themselves. The Tribunal has previously accepted expert evidence to that effect,[25] but acknowledges that it must be open to adapt to the continuing accumulation of knowledge in the field. The Tribunal will continue to carefully assess the evidence that comes before it in this regard.
9. Further to the consideration of whether the applicant is unwell following a period of non-compliance with medication, it is also necessary to consider whether a period of treatment causes or contributes to a reduction in the impairment to healthy function. The Tribunal cannot conclude that the treatment is necessary unless the risk of harm is caused by the illness and the treatment operates to reduce the risk.
10. The Tribunal is satisfied that the applicant benefits from the treatment in respect of an alleviation of symptoms associated with the risk of harm. After her relapse in January 2024, the applicant's mental state improved and became more stable. Previous admissions were also followed a notable improvement once the applicant commenced or recommenced taking anti-psychotic medications such as paliperidone.
11. It is difficult, of course, to determine whether the fact that the applicant has not had a further episode of illness since January 2024 is a result of recovery, or treatment. However, looking back on the correlation between treatment and reduced symptomology, with the benefit of Dr Lai's report, we are satisfied that the evidence favours the conclusion that treatment is operating on the illness with beneficial effect.

Does the applicant have impaired decision-making capacity relating to appropriate treatment?

1. The next and often most difficult issue is to consider whether the applicant's decision-making capacity in relation to the appropriate treatment for her illness, is impaired.[26] An impairment in this context means that the applicant is not capable of understanding, using or retaining information that may be relevant to the decision about treatment (including information relating to the consequences of that decision).
2. Dr Mubarak reports that the applicant recently denied that when she was unwell she experienced psychotic symptoms. She also expressed the view that she would not become unwell if she ceased medications.[27] However, even if the Tribunal finds that these are false beliefs, those beliefs are not necessarily incompatible with understanding, retaining or using information relevant to a decision about treatment.
3. The Tribunal has also reminded itself that a person may decide not to adopt recommended treatment, without being incapable of using relevant information about such treatment. Such a decision may reflect different values or priorities rather than a lack of ability to evaluate.
4. Dr Lai's report addresses this issue in some detail. He said:[28]

It is my view that [OWH] has impaired decision making capacity as she lacks insight into her current diagnosis, and also lack the ability to retain discussions about her treatment and risk profile. This is despite repeated family meetings and attempts at psychoeducation to give [OWH] the tools she needs to manage her diagnosis. > > ... [her] conceptualisation of her illness episodes was in the context of stress only, and that treatment was curative and not associated with prophylaxis. > > ... Dr Lee has noted that [OWH] has demonstrated remaining longitudinally insightless during her episodes of care. There is a noted discrepancy in the way that [OWH] and the mental health team see her current stable mental state; for [OWH], it is proof that she does not have a mental illness because, as she has noted in the past, she believes that people with mental illness cannot do demanding jobs) ...

5. The Tribunal finds that the applicant's fixed beliefs provide no room for consideration of alternative hypotheses, and in particular, the proposition that she has an enduring mental illness the effects of which are being modified by the prescribed treatment. Those fixed beliefs (as opposed to beliefs that are receptive to modification in the face of new information), are what prevents the applicant from using the information provided to her to evaluate the treatment being recommended, and administered, to her.

Are there less restrictive means than a Level 2 Community Treatment Order?

1. The fourth issue that the Tribunal must consider is whether there is any less restrictive means than a Level 2 Community Treatment Order to achieve appropriate treatment for the applicant.[29]
2. In this regard, is it important to consider whether the applicant would adhere to a recommended treatment regime if she were not required by the force of the order to comply with it.
3. The applicant considers that she is unlikely to relapse if the treatment were to cease, and that her family would provide protection for her in relation to any relapse.[30]
4. Dr Mubarak considered whether other less restrictive forms of treatment could achieve protection from harm but concluded that there was no less restrictive means of achieving the necessary treatment. He observed that, in the absence of treatment, it has been necessary to subject the applicant to far more restrictions under an inpatient order, which curtails a person's ability to attend work and associate with relatives and friends in the community.[31]
5. Dr Lai documented the various attempts that had been made over the last twelve months to accommodate some sort of change to the treatment regime to make it more palatable for the applicant. These attempts included changing the medication and changing the dosage and frequency of administration. In February 2025, Dr Lai offered to meet more frequently with the applicant to explore such options further but she declined. He remains open to discussions with her within those parameters.[32]
6. The applicant has been candid about her view that the treatment is not required. She has ceased treatment in the past against medical advice.[33] The Tribunal is satisfied that there is no less restrictive means than the level 2 community treatment order to achieve appropriate treatment of the applicant's illness.

1. The Tribunal has considered the criteria required for the making of a Level 2 Community Treatment Order afresh. Having done so, we reach the same conclusion as the Tribunal in the original decision. The correct and preferable decision is that the applicant be subject to a Level 2 Community Treatment Order.

1. The Tribunal grants leave to the applicant to apply for internal review.
2. The Tribunal affirms the decision under review.

[1] Mental Health Act 2009 s 16(5)(b).

[2] South Australian Civil and Administrative Tribunal Act 2013 s 70.

[3] Mental Health Act 2009 s 7(1)(b).

[4] Applicant's Outline of Argument dated 14 February 2025, under heading "issues in contention" at [5], under heading

[6] Ibid "outline of argument" at [3].

[7] Respondent's Outline of Argument dated 28 February 2025, at [16], [18], [21]-[23].

[9] Pro forma medical report of Dr Adil Mubarak dated 30 October 2024 (wrongly dated 2025 on the original) prepared for SACAT.

[11] Report of Dr Andrew Lai dated 11 April 2025, p 3.

[13] Any illness or disorder of the mind, s 3.

[14] Report of Dr Andrew Lai dated 11 April 2025.

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

[16] Report of Dr Adil Mubarak dated 30 October 2024, p 4.

[24] Report of Dr Andrew Lai dated 11 April 2025.

[25] EVX v Department for Health and Wellbeing [2023] SACAT 38 at [31].

[26] Mental Health Act 2009 s 16(1)(c).

[27] Report of Dr Adil Mubarak dated 30 October 2024, p 3.

[28] Report of Dr Andrew Lai dated 11 April 2025, pp 5-6.

[29] Mental Health Act 2009 s 16(1)(d).

[30] Applicant's outline of argument dated 14 February 2025 "outline of argument" at [9].

[31] Report of Dr Adil Mubarak dated 30 October 2024, p 4.

[32] Report of Dr Andrew Lai dated 11 April 2025, p 7.