Mental Health Stream - 60 day review of treatment order - Review of treatment Order - Meaning of mental illness - Section 40 treatment criteria - Decision-making capacity.

Mental Health Act 2013 (Tas); ss 4, 6, 7, 12, 37, 40(a)-(e), 179(1)(b), 181, Sch 1.

S v Mental Health Tribunal [2016] TASSC 34;

B v Mental Health Tribunal [2020] TASSC 10

The decision has been anonymised for the purpose of publication.

1. DN (the patient) is a 70 year old woman who lives in the North of Tasmania. She is currently subject to a treatment order under the Mental Health Act 2013 (Tas) (the Act).
2. DN was admitted to a mental health unit while previously having no contact with mental health services with a long history involving systematised paranoid delusions. She was taken to a mental health unit by ambulance. Prior to admission, she had been referred for assessment by police on multiple occasions.
3. On 3 March 2025 Dr JC (the applicant) filed with the Tasmanian Civil and Administrative Tribunal (the Tribunal) an application for a treatment order for DN pursuant to s 37 of the Act. A treatment order was made by the Tribunal following a hearing on 12 March 2025 in the following terms:

• (A) is authority for the patient to be admitted to and if necessary detained in an approved facility for the purposes of treatment;
• (B) authorises a combination of treatment settings and the admission or readmission of the patient to those settings, including treatment in the community; and
• (C) authorises the following:

(1) the patient is to take the following medication (depending on clinical indication):

1. Antipsychotic medication

2. Benzodiazepine medication

3. Anticholinergic medication for treatment of any extrapyramidal side effects from taking antipsychotic medication

Medications may be administered orally and/or by intra-muscular injection and/or by depot injection as prescribed by a treating psychiatrist within clinical guidelines, with dosages adjusted according to clinical response and tolerability.

(2) Standard medical and/or blood, and/or urine tests, as clinically indicated and as directed by the treating team.

(3) Older Persons Mental Health Service (OPMHS) appointments (inclusive of home visits as arranged when being treated in the community).

1. On 11 April 2025 DN filed an application for review of treatment order pursuant to s 181 of the Act seeking a review because she disagrees with the finding that she has a mental illness and further she objected to the police claiming she was "hearing things" and taking her to hospital where she has been placed on medication that she states incapacitates her.
2. The Act requires that treatment orders are reviewed within 60 days of the order being made. A hearing to conduct such review together with the application for review filed by DN was held on 9 May 2025 before a 3-member panel.
3. We determined that the treatment order made on 12 March 2025 be varied.
4. On 16 May 2025, DN requested a statement of reasons.

1. DN attended the hearing which was conducted by video link. The treating team were represented by Dr BU, an approved medical practitioner and FX, a case manager. In addition to the documentation relating to the initial treatment and the application, we had a 60-day treating psychiatrist report (60-day review report) authored by Dr HL, a consultant psychiatrist, on 30 April 2025. We also had the benefit of emails provided by DN outlining her concerns regarding a gaming soundbar she believed people were using to target her by inputting sounds into her home.

1. Section 179(1)(b) of the Act mandates that the Tribunal is to review treatment orders (and their variation and discharge).
2. Provisions governing the review of a treatment order are set out in section 181 of the Act, as follows:

181. Review of treatment order > > (1) The following provisions govern the review of a treatment order: > > (a) the Tribunal must review the order within 60 days after it is made if it is still in effect; > > (b) the Tribunal must further review the order within 180 days after it is made if it is still in effect; > > (c) after the further review referred to in paragraph (b), the Tribunal must further review the order at intervals not exceeding 180 days for so long as it remains in effect; > > (d) ... > > (e) ... > > (f) a review need not involve a hearing, but is to be conducted - > > (i) in the case of a review referred to in paragraph (d) and in respect of which section 47A applies in relation to the patient, by a division - > > (A) of one member; or > > (B) of 3 or more members; or > > (ii) in any other case, by a division of 3 members. > > (g) on review, the Tribunal may affirm, vary or discharge the order.

3. In reviewing a treatment order under s 181(1)(c) of the Act, the Tribunal must determine whether DN continues to meet the treatment criteria. Section 40 provides:

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 - > > (i) the person's health or safety; or > > (ii) the safety of other persons; and > > (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.

4. Additionally, in deciding whether to exercise our discretion to affirm, vary or discharge a treatment order, we must consider the objectives outlined in section 12 of the Act:

12. Objects of Act > > The objects of this Act are as follows: > > (a) to provide for the assessment and treatment of persons with mental illnesses; > > (b) to provide for appropriate oversight and safeguards in relation to such assessment and treatment; > > (c) to give everyone involved with such assessment and treatment clear direction as to their rights and responsibilities; > > (d) to provide for such assessment and treatment to be given in the least restrictive setting consistent with clinical need, legal and judicial constraints, public safety and patient health, safety and welfare; > > (e) to promote voluntary over involuntary assessment and treatment and the making of free and informed assessment and treatment choices; > > (f) to provide for all incidental and ancillary matters.

1. Finally, in exercising our responsibilities under the Act, we must consider the mental health service delivery principles set out in Sch 1 of the Act. Schedule 1 provides:

SCHEDULE 1 - Mental health service delivery principles

1**.** The mental health service delivery principles are as follows:

(a) to respect, observe and promote the inherent rights, liberty, dignity, autonomy and self-respect of persons with mental illness;

(b) to interfere with or restrict the rights of persons with mental illness in the least restrictive way and to the least extent consistent with the protection of those persons, the protection of the public and the proper delivery of the relevant service;

(c) to provide a service that is comprehensive, accessible, inclusive, equitable and free from stigma;

(d) to be sensitive and responsive to individual needs including, but not limited to -

(i) needs relating to culture, language, age, religion, gender, gender identity, sexual preference, sexuality or other personal factors; and

(ii) in relation to patients who are Aboriginal persons or Torres Strait Islanders, that there is a recognition of and response to their distinct cultural and identity needs; and

(iii) needs that require recognition of and response to relevant cultural and identity needs generally; and

(e) to emphasise and value promotion, prevention and early detection and intervention;

(f) to seek to bring about the best therapeutic outcomes, including the use of evidence-based care, and promote patient recovery;

(g) to provide services that are consistent with patient treatment plans;

(h) to recognise the difficulty, importance and value of the role played by families, carers, children and support persons of persons with mental illness;

(i) to recognise, observe and promote the rights, welfare and safety of the children and other dependants of persons with mental illness;

(j) to promote the ability of persons with mental illness to make their own decisions including decisions about the person's assessment, treatment and recovery that involve a degree of risk;

(k) to involve persons receiving services, and where appropriate their families, carers, children and support persons, in decision-making;

(l) to recognise families, and support persons, of persons with mental illness as partners, with mental health service providers, in the provision of their treatment and care to the extent that this is appropriate and consistent with their own wishes;

(m) to respect the wishes of persons receiving services, and the wishes of their families and support persons, to the maximum extent consistent with the health and safety of those persons and the safety of others;

(n) to promote and enable persons with mental illness to live, work and participate in their own community;

(o) to operate so as to raise community awareness and understanding of mental illness and to foster community-wide respect for the inherent rights, liberty, dignity, autonomy and self-respect of persons with mental illness;

(p) to be accountable and to have robust clinical governance and quality and safety processes;

(q) to recognise and be responsive to national and international clinical, technical and human rights trends, developments and advances and meet the requirements for national accreditation;

(r) to ensure that persons receiving mental health services have their medical and other health needs, including any alcohol and other addiction problems, recognised and responded to;

(s) to ensure that the best interests of children and young persons are recognised and promoted as a primary consideration, including receiving services separately from adults, whenever possible;

(t) to ensure that the needs, wellbeing and safety of children, and other dependants, of persons receiving mental health services are recognised and protected;

(u) to ensure that staff working in mental health services have access to the support, supervision and appropriate training, including cultural diversity training, required to maintain quality, safety and a highly skilled workforce;

(ii) provides persons with mental illness with timely treatment, care and support that is high quality and based on contemporary best-practice principles; and

(iii) promotes recovery in the least restrictive manner that is consistent with the needs of persons with mental illness;

(w) to ensure that people who require mental health care and treatment have timely referrals, and access to specialist mental health services, when appropriate.

1. We now turn to an examination of the evidence and submissions as to whether DN meets the treatment criteria.

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.

2. Dr BU reports DN has a "diagnosis of late onset psychosis with a differential late onset schizophrenia. Her symptomatology is mainly persecutory delusions about the neighbours. This has been going on for about 12 months [DN] told us." He advised Community Mental Health Services tried to engage with DN from around August 2024 however DN would not accept treatment in the community and with her symptoms worsening this resulted in her being treated involuntarily and spending three weeks in hospital. In the 60-day review report Dr HL states that there has been no change to DN's mental health since the original application. The application for the treatment order details DN has paranoid psychosis with continuing paranoid delusions. Dr BU advised testing had been undertaken to rule out any organic explanation for DN's behaviours.
3. Dr HL notes in the 60-day review report that DN has continuing paranoid delusional beliefs concerning neighbours and although the intensity of her beliefs has reduced since hospital admission, she has again lodged complaints with the police following discharge. Her delusions include her beliefs the neighbours have listening devices in her garden, that sounds are being broadcast into her home by her neighbours, and they are using artificial intelligence/military surveillance devices to persecute her.
4. Dr HL provided cogent evidence which explains why the view has been formed that DN has a mental illness. Whilst taking into account the evidence of DN, and being cognisant of the ramifications to DN if she is to remain an involuntary patient under a treatment order, we are satisfied to the required standard upon the evidence and the information provided by Dr HL that the criterion in s 40(a) is met, that is DN has a mental illness as defined by the Act.

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. We note that this criterion had been interpreted by the Supreme Court in the following matters.
2. 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.

3. In B v Mental Health Tribunal [2020] TASSC 10, Blow CJ provided further comments on the criterion at [14]:

Section 40(b) is concerned with what is "likely". When that word is used in legislation, it can have various meanings. It can mean "more probable than not" or "more than a 50% chance". It can refer to something that might well happen. It can refer to a possibility that is more than a remote or theoretical possibility. The meaning of the word has been considered in a great many cases. See, for example, Boughey v The Queen (1986) 161 CLR 10; Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union [1979] FCA 85; (1979) 42 FLR 331 at 339; Cream Holdings Ltd v Banerjee [2003] EWCA Civ 103; [2003] 3 WLR 999. Much depends on the legislative context. It is significant that the principal purpose or object of s 40(b) is the protection of mentally ill persons and others from risks of harm. Having regard to the purpose and context of the provision, I consider that "likely" should be given a wide interpretation. It should not be interpreted as meaning "more probable than not". It must be interpreted as meaning something more than a remote or theoretical possibility. I think it should be interpreted as referring to something that might well happen. Having regard to the evidence that I have referred to, I consider that it was open to the Tribunal to conclude that, without treatment, the appellant's mental illness was "likely" to result in her killing herself.

4. At the hearing Dr BU expressed that in his opinion, without treatment, DN's mental illness would be likely to seriously harm DN's health and safety. Dr BU indicated that without treatment DN is at risk of deterioration of her mental health and that the persecutory delusions and symptoms of her schizophrenia will worsen. He also advised without treatment she will continue to suffer. Dr BU advised DN has admitted she is suffering but she remains of the view she does not need treatment. Further, we were advised there will be adverse outcomes from her increased vulnerability secondary to her paranoia and a worsening of her mental illness if she is not receiving treatment and appropriate monitoring.
5. Dr HL stated an ongoing risk is that DN will continue to act on her paranoid delusional beliefs, for example by repeatedly contacting local police to complain about her neighbours which will cause her reputational damage. Dr BU advised there is a further risk that DN's behaviour will escalate based on these delusions which may lead to her confronting her neighbours which will lead to further conflict. Dr BU also raised concerns about DN taking photos of her neighbours without their consent which during the hearing DN confirmed she had been doing because she was concerned about drug deals occurring. DN advised us she was told by the police to take these photos.
6. We accept Dr BU's evidence that without treatment there is a likelihood of serious harm to DN's health and safety. We are satisfied that without treatment it is likely that DN's mental health will deteriorate which poses a serious risk of harm to her health and safety, there is a risk to her reputation because of her ongoing complaints to the police and a potential risk to others if her delusions concerning her neighbours escalate.
7. 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 before exercising the discretion to make a treatment order that the outcome of the proposed treatment is appropriate and effective as 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 BU advised at the hearing the treatment is appropriate however not effective at this stage because of DN's non-compliance with medication. Dr HL confirmed in the 60-day review report that the treatment order continues to provide appropriate and effective treatment of DN by ensuring regular follow up in the community by her case manager, supervision and monitoring of prescribed antipsychotic medication.
3. Dr BU advises:

it is strongly suspected the patient has not been taking her antipsychotic medication as prescribed, but she is now commenced on an alternate antipsychotic medication on a low dose with a view to increase the dose depending on the response.

4. DN is opposed to an increase in dosage forming the view that the dosage will be increased "until I can no longer hear the noises". If her paranoid delusions remain and/or she is not compliant with treatment, it is likely she would benefit from the introduction of a depot antipsychotic.
5. Dr BU gave evidence that because of the concerns regarding compliance with taking her antipsychotic medication the treating team is considering implementation of a long-acting injection. Dr BU advised DN undertakes a lot of research about the medication and reports she is getting non-specific side effects however there is no objective evidence of those side effects.
6. We accept the evidence as to the professional opinion of Dr BU that treatment proposed in the application is appropriate and effective for DN as defined in the Act. His evidence was the prescribed medications proposed are indicated as being effective to treat the symptoms of mental illness that DN has been exhibiting. The prescribed medications are directed towards the management of the ill effects of DN's mental illness. This criterion is satisfied.

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

1. Dr BU advised DN refused to engage with the community clinical mental health team, her hallucinations were progressively worsening and because DN would not accept any treatment she therefore had to be admitted to hospital. DN told us she was not advised that if she did not accept treatment in the community that she could be forcibly detained and advised had she been notified of this she would have accepted treatment.
2. Dr BU confirmed DN would not voluntarily accept treatment and advised she lacks insight into her treatment and does not accept that she has a mental illness. There are current concerns regarding her compliance with the antipsychotic medication and the treating team are considering implementing a long-acting injection. During the hearing Dr BU confirmed her compliance with medication is "very questionable". Dr BU advised DN does not take medication or accept treatment without a treatment order.
3. We are satisfied the treatment cannot adequately be given except under a treatment order. We do not accept that DN is willing to accept treatment unless under a treatment order. In reaching this finding we are also informed by the fact that Adult Community Mental Health Services have had difficulty in engaging with DN because of her reluctance to receive treatment.
4. We are satisfied this criterion is made out on the evidence.

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).

2. Regarding decision-making capacity Dr HL's report provided:

the patient does not accept that she has a mental illness. She does not see a need for regular medication. She believes her ideas about her neighbours, the listening devices, and the use of artificial intelligence are all real. She admitted at the interview she does not trust the mental health services. She lacks the capacity to make an informed decision about the treatment of her mental illness and is unable to process and weigh the information provided by psycho education.

3. Dr BU reported with respect to capacity that DN does not accept that she has a mental illness and that she has no insight into her mental illness. She is of the view that nothing has changed in relation to her behaviours. The evidence was that attempts to discuss treatment with DN are problematic because DN does not want to hear about treatments, and she rejects conversations about treatment. Dr BU further reports that DN is incapable of using or weighing information necessary to make decisions regarding her treatment due to impaired reasoning. She does not appreciate the impact of the mental illness on her life and is not accepting of treatment. Attempts were made in the community to access DN without success. Her delusions are so preoccupying and intense it renders her unable to consider information she is provided about treatment. Her psychotic symptoms of delusions impair her ability to make decisions, and this is due to an impairment of the functioning of her brain. She is unable to understand information provided to her about her illness, she does not understand her experiences and behaviours include the delusions and hallucinations and are in fact symptoms of her mental illness.
4. DN gave evidence at the hearing that she did not have a mental illness; her explanation for her behaviours was that neighbours generally, and specifically, two sets of neighbours where she lived, were targeting her with a headset free device which delivers sound directly to her home. DN advised she had undertaken research about these devices which research DN provided to us. DN advised the headset free devices were often used for gaming because they deliver sound directly to a room, or for exercising at the gym because you don't need to have a head set in your ears.
5. DN confirmed she had also undertaken research regarding her medication and as a result advised in respect of her ongoing treatment, she is of the view that Dr BU is going to increase the dose of her medication until she no longer hears the voices. She advised that this concerned her because the sound input is real, and her neighbours have been harassing her through the use of this sound going into her home but now they have worked out they can do it using their gaming devices. DN also advised she is concerned that mental health services (which we infer to mean her treating team) have the ability to increase the dosage of the drug she is taking which will "disable me/stop me from taking action and from calling the police but I will still be hearing the noises". She also submitted she will be abused by mental health services because they are working against her not with her. DN advised she does not agree with services intervening in her life and she does not see an end point.
6. We are satisfied that DN does not understand the risks associated with not receiving appropriate treatment. DN advised us that she does not need any support from mental health services, nor does she need any treatment. She advised she needed moral support from her family to keep going with her concerns about her neighbours and she now had that support because she had advised her children of her concerns.
7. We are satisfied that DN lacks decision-making capacity, and the lack of capacity is due to a disturbance in the functioning of her mind by reason of her mental illness. Due to DN's impaired thinking she is unable to use or evaluate the relevant information, particularly the benefits of antipsychotic medication.
8. This criterion is met.

The discretion to affirm, vary or discharge a treatment order

1. Noting the applications before us and given the evidence, we are satisfied that we should exercise our discretion to vary the treatment order.
2. The treatment order made for DN on 12 March 2025 is varied and the order made is:

1. The patient is to take the following medication (depending on clinical indication): 1. Antipsychotic medication 2. Hypnotic medication

Medications may be administered orally and/or by intra-muscular injection and/or by depot injection as prescribed by a treating psychiatrist within clinical guidelines, with dosages adjusted according to clinical response and tolerability.

3. Standard medical and/or blood, and/or urine tests, as clinically indicated and as directed by the treating team.
4. Older Persons Mental Health Service (OPMHS) appointments (inclusive of home visits as arranged when being treated in the community).