Mental Health Act 2013 (Tas); ss 4, 6, 7,12, 40, 48, 195 and Sch 1.

S v Mental Health Tribunal [2016] TASSC 34

B v Mental Health Tribunal [2020] TASSC 10

PBU & NJE v Mental Health Tribunal [2018] VSC 564

The decision has been anonymised for the purpose of publication

1. LLM (the patient) is a 57-year-old woman living in Southern Tasmania.
2. On 24 April 2025, Dr LO (the applicant), filed an application for renewal of treatment order in respect of LLM pursuant to s 48 of the Mental Health Act 2013 (Tas) (the Act).
3. The application was heard by us on 6 May 2025. Dr LO attended by audio visual link. We determined to renew the treatment order.
4. LLM did not attend the hearing but contacted the Tribunal registry on 15 May 2025 to request a statement of reasons for our determination.
5. At the date of the hearing, LLM was being treated as an involuntary patient in the community under the authority of a treatment order originally made by the then Mental Health Tribunal on 16 May 2017. That order had been subject to review since that time and was due to expire on 7 May 2025.

1. The Tribunal's authority to renew a treatment order is set out in s 48 of the Act.
2. Section 48(7) stipulates that the Tribunal may only renew a treatment order if it is satisfied that:

(a) the applicant has complied with s 48(4) of the Act regarding the provision of copies of the application to relevant parties;

(b) The person meets the treatment criteria.

1. The treatment criteria are provided in s 40 of the Act, as follows:

40. Treatment criteria > > The treatment criteria in relation to a person are - > > (a) the person has a mental illness; and > > (b) without treatment, the mental illness will, or is likely to, seriously harm -

(c) the treatment will be appropriate and effective in terms of the outcomes referred to in section 6(1); and

(d) the treatment cannot be adequately given except under a treatment order; and

(e) the person does not have decision-making capacity.

1. The Tribunal must also be satisfied that:
   1. the application has been made by an approved medical practitioner - see s 48(1) of the Act;
   2. the application was made at least 10 days before the day during which the treatment order expired - see s 48(2) of the Act;
   3. the application, in accordance with s 195 of the Act, was accompanied by the relevant documents - see s 48(3) of the Act, and;
   4. Copies of the application have been provided to all parties are required under s 48 (4) of the Act.
2. At the hearing, the Tribunal was satisfied that:
   1. Dr LO is an approved medical practitioner;
   2. the application was made at least 10 days before the day during which the treatment order expired;
   3. the application is in accordance with s 195 of the Act;
   4. copies of the application have been provided to all parties as required under s 48(4) of the Act.
3. Additionally, in deciding whether to exercise our discretion to renew a treatment order under s 48, we must consider the objectives outlined in s 12 of the Act and the mental health service delivery principles set out in Schedule 1 of the Act.

1. Dr LO's evidence was presented through the application, the treatment plan dated 24 April 2025 and a copy of LLM's current treatment order.
2. At the hearing, Dr LO gave oral evidence in support of the application.

The person has a mental illness pursuant to s 40(a)

4. Meaning of mental illness > > (1) For the purposes of this Act - > > (a) a person is taken to have a mental illness if he or she experiences, temporarily, repeatedly or continually -

(i) a serious impairment of thought (which may include delusions); or

(ii) a serious impairment of mood, volition, perception or cognition; and

(b) nothing prevents the serious or permanent physiological, biochemical or psychological effects of alcohol use or drug-taking from being regarded as an indication that a person has a mental illness.

1. In the application, Dr LO details that LLM has a diagnosis of chronic schizophrenia, first diagnosed in 2007. LLM has been on a treatment order since 2017 and prior to this she had self-ceased and been non-adherent to medications with subsequent deterioration in her mental state. Dr LO notes that between 2007 and 2017 there had been multiple admissions to hospital. In the application, Dr LO details that LLM's symptoms include:

persisting persecutory/paranoid, grandiose delusions, spiritual and religious themes. Spending significant amount of times thinking about those topics and at times putting those thoughts in writing in emails. Negative symptoms of illness- degree of social withdrawal (mainly reliant on family and socialising within family), lack of energy and motivation.

2. Dr LO's evidence in the hearing echoed this. Dr LO's evidence was that LLM experiences daily symptoms of schizophrenia including grandiose, paranoid and persecutory delusions involving various politicians and government agencies.
3. Although LLM did not attend the hearing, she emailed the Tribunal registry on 26 April 2025 as follows:

Good morning Tascat mental health stream, I have a tribunal hearing on the 6th May 2025 and wish to provide information prior to this hearing. > > Firstly, I identify as Aboriginal therefore with this spirituality I live with, I dispute the diagnosis of delusions. The persecution and paranoia are real and exist- there is plenty of scientific evidence to back up mental telepathy and telekinesis. I speak mentally so with externally caused thought broadcasting, I attract opposition from many people. My spirituality (extensive religiously and spiritual groups) and specifically attainment of spiritual levels attracts condemnation hence the grandiosity- I have actually reached a high level. Therefore not grandiosity, but reality. > > If global intelligence and government wish to be derogatory, please support reality- delusions are not mine. > > I find the antipsychotic medication negatively affects my physical health, cardiovascular and metabolic health. I disagree with the high dose. It causes sedation, bluntness, muteness, depression, apathy and insomnia. If anxiety is my issue, then cognitive behavioural therapy and anxiolytics would suffice, no brain fogging either. My mania and ego are spiritual issues titrated to my medication therefore if you cease the anti-psychotics then my mania and inflated ego will diminish. My religious groups will back this. I'm actually frustrated with mental health- an obvious solution is apparent. Do you suggest a Supreme Court directive if state government want to sedate me? If I talk less mentally, will you cease the antipsychotics? I receive so little feedback- I'm willing to work with mental health services. > > In peace and wisdom, [LLM]

4. LLM did not provide any independent evidence (medical or otherwise) to support her position that she is not experiencing delusions and that her views and concerns are reality based.
5. We accepted and were satisfied by the expert evidence of Dr LO that LLM has a mental illness, namely schizophrenia.

Without treatment, the mental illness will, or is likely to, seriously harm the person's health or safety; or the safety of other persons pursuant to s 40(b)

1. In S v Mental Health Tribunal [2016] TASSC 34, Blow CJ (as he then was) said at [22]:

The thresholds for the satisfaction of the criteria in s 40(b) and (c) are fairly low. To be satisfied as to (b), a medical practitioner need not be satisfied of any risk to other persons, nor of any risk to the safety of the patient. It is sufficient if the practitioner is satisfied that, without treatment, the mental illness is likely to seriously harm the person's health, which of course includes the person's mental health.

2. For the purposes of the Act, the word 'likely' means "something more than a remote or theoretical possibility ... something that might well happen": B v Mental Health Tribunal [2020] TASSC 10 at [14].
3. At the hearing Dr LO expressed that in her opinion without treatment, LLM's mental illness would be likely to seriously harm LLM's health and safety. This was on the basis that LLM's mental health would deteriorate to the point where she would require hospitalisation - which LLM finds distressing. Dr LO noted that since being on the treatment order in 2017, LLM has not required admission to hospital.
4. We accepted Dr LO's evidence and are satisfied that without treatment, it is likely that LLM's mental health would decline resulting in harm to her health. This criterion is met.

The treatment will be appropriate and effective in terms of the outcomes referred to in s 6 (1) pursuant to s 40(c)

1. We must be satisfied that the proposed treatment is appropriate and effective in terms of the outcomes referred to in s 6(1) of the Act:

6. Meaning of treatment > > (1) For the purposes of this Act, treatment is the professional intervention necessary to - > > (a) prevent or remedy mental illness; or > > (b) manage and alleviate, where possible, the ill effects of mental illness; or > > (c) reduce the risks that persons with mental illness may, on that account, pose to themselves or others; or > > (d) monitor or evaluate a person's mental state.

2. Dr LO's evidence was that LLM is currently prescribed anti-psychotic medication, Paliperidone, which has been effective in keeping her well. Dr LO noted that since 2017, whilst consistently receiving treatment, LLM has been able to live in the community with her family and has not required hospital admission. Her family report that she does not seem particularly distressed by her delusions and upon review by Dr LO, LLM appears to be in "good spirits".
3. In her email, LLM provides "I find the antipsychotic medication negatively impacts my physical health, including cardiovascular and metabolic health. I disagree with the high dose, as it causes sedation, bluntness, muteness, depression, apathy, and insomnia."
4. When asked during the hearing whether LLM experiences significant side effects from the antipsychotic medication, Dr LO stated that LLM does not report any major side effects, although reports the medication makes her feel tired. Dr LO noted the treating team had trialled alternative medication, but LLM found the side effects to be worse.
5. We do not accept that LLM's symptoms can be effectively treated by discontinuing antipsychotic medication, as suggested by her. Rather, we accept Dr LO's evidence that the cessation of LLM's antipsychotic medication has led to deteriorations in her mental health, resulting in multiple admissions prior to 2017. Furthermore, we do not accept that LLM can manage the symptoms of her mental illness using "mental telepathy and telekinesis". No expert evidence was presented in support of this claim by LLM.
6. We accepted Dr LO's evidence that the treatment proposed in the application is appropriate and effective for LLM as defined in the Act and find that this criterion is met.

The treatment cannot be adequately given except under a treatment order pursuant to s 40(d)

1. In her application, Dr LO highlighted LLM's history of non-adherence to treatment prior to being placed on a treatment order in 2017. Dr LO gave evidence at the hearing that LLM had made it clear to the treating team that, if she were not on a treatment order, she would refuse antipsychotic medication. LLM believes she does not need antipsychotic medication and feels she can treat herself telepathically.
2. Whilst LLM indicated she would be willing to work with the treating team, it is unclear exactly what she meant by this as she raises ceasing anti-psychotic medication twice in her email.
3. We accepted the evidence of Dr LO that LLM would not be likely to accept adequate treatment if not under a treatment order - particularly anti-psychotic medication. As such, we are satisfied that treatment cannot be adequately given except under a treatment order.

The person does not have decision-making capacity pursuant to s 40(e)

1. The Act defines "decision-making capacity" in s 7:

7. Capacity of adults and children to make decisions about their own assessment and treatment > > (1) For the purposes of this Act, an adult is taken to have the capacity to make a decision about his or her own assessment or treatment (decision-making capacity) unless a person or body considering that capacity under this Act is satisfied that - > > (a) he or she is unable to make the decision because of an impairment of, or disturbance in, the functioning of the mind or brain; and > > (b) he or she is unable to -

(i) understand information relevant to the decision; or

(ii) retain information relevant to the decision; or

(iii) use or weigh information relevant to the decision; or

(iv) communicate the decision (whether by speech, gesture or other means).

1. As part of her evidence, Dr LO submitted that due to LLM's delusions she is unable to understand or recognise the underlying cause of her presentation, compromising her ability to make decisions about treatment. Dr LO further explained that these delusions interfere with LLM's capacity to use and weigh relevant information necessary for making treatment decisions. For example, LLM believes she can actually communicate with external entities through her mind, and she can heal herself telepathically. As a result of these fixed beliefs, LLM does not perceive her condition as an illness and consequently does not believe that she requires any treatment. An email sent by LLM to the Tribunal supports Dr LO's assessment, confirming that LLM views her experiences as spiritual in nature rather than as symptoms of mental illness or delusion and that her views around her telepathic abilities are reality based.
2. Based on the evidence presented, we were satisfied that the presumption of capacity had been rebutted by the applicant. We were satisfied that LLM was unable to make decisions about treatment due to a disturbance in the functioning of her mind, specifically as a result of her delusional thinking.
3. We were satisfied that LLM's delusional beliefs impair her ability to understand that she has a mental illness that requires treatment. She does not recognise that the symptoms she experiences are manifestations of a mental illness which cannot be effectively treated through telepathy, as she suggests.
4. As held by Bell J in PBU & NJE v Mental Health Tribunal [2018] VSC 564 at [208] and [231] a lack of insight is not in itself a basis to find that a person lacks decision making capacity. However, his honour also stated at [198]:

... lack of belief or insight in respect of a mental illness or need for treatment may be capable of supporting a finding of incapacity. The question is whether it does. This means giving due consideration to a relevant fact, not (in effect) applying a determinative normative criterion.

5. LLM's delusional beliefs hinder her ability to properly evaluate the risks and benefits of treatment for her mental illness. Her fixed belief that she can heal herself telepathically obstructs her understanding of what would constitute effective treatment for her condition. We were satisfied that she is unable to use and weigh the treatment options available to her, because she lacks an understanding of what would constitute effective treatment in her situation.
6. Accordingly, we are satisfied that LLM does not have decision making capacity and this criterion is met.

1. As a result of the hearing, the Tribunal was satisfied that the treatment criteria in s 40 were met and determined that the treatment order should be renewed.
2. The treatment order was renewed for a period of twelve months and is due to expire on 6 May 2026, unless discharged by an Approved Medical Practitioner sooner.