Mental Health Act 2013 (Tas); ss 4, 6, 7,12, 40, 48 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. DN (the patient) is a 70-year-old living in Tasmania.
2. On 28 May 2025 Dr TD (the applicant), filed an application for renewal of treatment order in respect of DN pursuant to s 48 of the Mental Health Act 2013 (Tas) (the Act).
3. On 10 June 2025, the Tribunal heard the application and renewed the treatment order. At the date of the hearing, DN was being treated in the community as an involuntary patient under the authority of a treatment order made on 12 March 2025. The patient was represented at the hearing by Ms Rylee Olsson of Tasmania Legal Aid and Mr Matt Woolley of Advocacy Tasmania.
4. On 16 June 2025, DN contacted the Tribunal registry and requested a statement of reasons. These are the requested reasons.

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, and

(b) The person meets the treatment criteria.

1. The treatment criteria are those provided under s 40 of the Act, which are 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 of the matters set out in s 48 (1), (2) and (3) with respect to by whom, when and how the application must be made.
2. 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 Sch 1 of the Act.

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 TD details that DN has been diagnosed with a late onset psychotic illness. DN was admitted for inpatient treatment on 28 February 2025 with no previous contact with mental health services in Tasmania. Dr TD describes DN as experiencing auditory hallucinations and persecutory delusions of being harassed by her neighbours, being monitored and under surveillance by AI technology. Dr TD particularises:

She continues to experience psychotic symptoms. She continues to report that there are various [artificial intelligence "AI"] devices ( Razor Levathian V2, Noveto) which follow her in her house. This occurs mainly at night time. She believes this is being carried out by her neighbours. Through these Al devices, the neighbour ... and others can know where she is in the house. This mainly starts at night when she lies in bed - when she can hear noise from these devices, this also includes voice stating -' shift, move' and also high pitched sounds - this voice is also of neighbour's partner and his step-daughter. She believes that they use the Child so that they don't get into trouble. They specifically direct the noise ( high pitched tone/ music tones/ bodily function noises) and voices to her ears through Al technology. She believes that these devices has 3D sensor and they track her movements. This also thinks that this 'reacts with her gene expression'. This starts when she lies down and stops when she sits up. She has not seen them inside her house but they had been at her windows in the past. She thinks that they wanted her dead by exhaustion. She had once taken a picture of the neighbour recently when he had parked his car in her drive way. She reports that she quickly went into her house after taking his picture. She had contacted the police on this occasion to report him. She has not confronted him otherwise.

1. At the hearing, Dr TD's evidence largely echoed the application. Dr TD reiterated that DN experiences delusions of a persecutory nature involving her neighbours. Dr TD described DN's mental illness as a late onset psychotic illness with a differential diagnosis of delusional disorder.
2. DN believes that her neighbours are targeting her by using AI technology to monitor and follow her in her home, which prevents her from sleeping. She explained that gaming devices equipped with AI can be trained to focus on a person's ears and transmit sound directly to them. According to DN, this targeting only occurs at night when she is trying to sleep. DN told the Tribunal that she believes her neighbours intend to harm her and sabotage her academic success by depriving her of rest. Dr TD observed that DN also experiences auditory hallucinations in which voices insult her and make sexual remarks. These experiences are understandably very distressing for DN and contribute to her sleep difficulties_._ Dr TD further noted that DN has, at times, expressed feeling suicidal as a result of these experiences_._
3. DN's position, as put forward by Ms Olsson, is that DN does not have a mental illness. Ms Olsson acknowledged that DN does not have medical evidence to support this position. Ms Olsson submitted that what Dr TD has characterised as paranoid delusions are "significantly reality-based". She noted that DN resides in a large apartment complex where police are frequently called due to criminal activity. Ms Olsson further noted that police had contact with DN in relation to criminal behaviour in the unit adjacent to hers, and that the occupants of that unit have since been evicted. In relation to the concerns about AI, Ms Olsson submitted that technology does exist that can adapt to the position of the listener.
4. It was accepted by Dr TD that DN does have some "unsavoury" neighbours. However, her evidence was that DN's concerns about her neighbours monitoring her thought AI and hearing voices appear to be delusional in nature.
5. In considering whether the criteria under s 40 are met, the Tribunal must be satisfied to the civil standard, that is, on the balance of probabilities. This means the Tribunal must be reasonably satisfied that the facts, as presented, are more likely than not to be correct. In essence, DN's submissions are that the Tribunal should not accept the facts as presented by Dr TD. Rather the Tribunal should be satisfied, on the balance of probabilities, that the facts as DN presents them are more likely than not to be accurate, in particular, that she does not have a mental illness.
6. It was not disputed that DN has some neighbours who may not be considered ideal, and the Tribunal accepts that there may be ongoing conflict between DN and those neighbours. However, the Tribunal has difficulty accepting that it is more likely than not that DN's neighbours are utilising AI technology (including 3D sensors) that follow her in her house and direct sound to her ears only when she lies down to sleep. Neither DN nor her legal representative provided any independent evidence, medical or otherwise, to support the assertion that DN is not experiencing symptoms of a mental illness and her concerns regarding her neighbours using AI technology to monitor her are grounded in reality. DN told the Tribunal that she preferred the results of her online search for the explanation for her experiences as given by AI as opposed to the expert opinion of psychiatrists.
7. The Tribunal preferred the expert evidence of Dr TD. Dr TD as a psychiatrist has specialist expertise in diagnosing and treating mental illness. The Tribunal is satisfied that DN has a diagnosis of late onset psychotic illness (with a differential diagnosis of delusional disorder) characterised by persecutory delusions and auditory hallucinations. The Tribunal is satisfied that DN has a mental illness within the meaning of the Act. The Tribunal did not accept DN's contention that she is being monitored by her neighbours with sound being directed to her ears as reality based.
8. Accordingly, we were satisfied that criterion s 40(a) was met.

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) when considering s 40 (b) 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 TD expressed that in her opinion without treatment, DN's mental illness would be likely to seriously harm her health. Dr TD's evidence indicated that without treatment, DN's mental health would deteriorate. Dr TD made reference to DN's intermittent suicidal thoughts due to the distressing nature of her ongoing hallucinations and persecutory delusions.
4. Ms Olsson submitted DN does not have a mental illness, and therefore, there was no risk of serious harm if treatment was discontinued.
5. The Tribunal is satisfied that DN has a mental illness as outlined by Dr TD. The Tribunal preferred and accepted the expert opinion of Dr TD that without treatment DN's mental health would be likely to deteriorate, placing DN at risk of further psychiatric admissions and possible self-harm due to suicidal ideation resulting from the distress caused by her symptoms.
6. Based on the evidence before us, we are satisfied that, in the absence of treatment, DN's mental health is likely to decline, increasing her risk of self-harm, and that this may result in serious harm to her health and safety.
7. The Tribunal is satisfied 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. The Tribunal must be satisfied that the proposed treatment is appropriate and effective as referred 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 TD advised that DN is currently prescribed an antipsychotic medication, Paliperidone which is a recognised treatment for psychotic illness. DN has also been prescribed Zopiclone, a non-benzodiazepine which assists with sleep. It was Dr TD's evidence that the treatment is expected to alleviate DN's symptoms, reduce her distress, and thereby lessen any potential risks to herself. Although it is still early in the course of treatment, Dr TD noted a "softening" of DN's symptoms since commencing the current treatment regimen. DN had been previously trialled on two other antipsychotics, however the current antipsychotic medication was found to be effective and to cause fewer side effects.
3. Dr TD expressed concern regarding DN's previous use of a dangerously high dose of her medication to assist with her sleep disturbance; which was based on her persistent but mistaken belief that the higher dosage had been approved by the U.S. Food and Drug Administration. This issue has since been managed by the treating team who have adjusted the dispensing schedule to a weekly basis. At the hearing DN disputed the approach preferred by the treating team.
4. DN raised concerns about the antipsychotic medication, and its side effects, specifically citing leg cramps, tachycardia, lack of motivation, and weight gain. DN also expressed concern that the medication might reduce her white blood cell count. She stated this concern was linked to being on a waitlist for two years for immunotherapy to treat skin cancer. DN further stated she believes she has diabetes due to experiencing "all of the symptoms" but acknowledged that "it wasn't showing up in the blood tests". Dr TD disagreed with DN's view that she had diabetes or was on the waitlist for immunotherapy, due to this being inconsistent with their enquiries with DN's general medical practitioner with no objective evidence on blood tests.
5. At the hearing DN stated that the antipsychotic medication was neither appropriate nor effective. She told the Tribunal that her neighbours continued to target her and that the medication had "made no difference whatsoever" in that regard.
6. The Tribunal accepted the expert evidence of Dr TD that the treatment proposed in the application is appropriate and effective for DN, as defined under the Act. In relation to side effects, the Tribunal noted that the treating team had trialled multiple antipsychotic medications to find one which was effective and had with the least adverse effects for DN.
7. DN did not provide any independent evidence to support her claim that she has been on a waitlist for immunotherapy for over two years or that she has diabetes. In the absence of supporting evidence, the Tribunal did not accept that DN has been waiting in excess of two years for skin cancer treatment, nor that she has diabetes. On this basis, the Tribunal considers the treatment prescribed to DN is appropriate.
8. We are satisfied that this criterion is met.

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

1. Dr TD outlined that DN does not want to engage with mental health services or take medication as prescribed. In Dr TD's opinion, treatment could not be adequately given except under a treatment order.
2. Ms Olsson conceded that this criterion was met. DN was not willing to voluntarily accept treatment as recommended by Dr TD. The Tribunal acknowledges that DN's preference was to take her "sleeping tablets" and consult with her GP as required.
3. The Tribunal was satisfied that DN would not be likely to accept treatment if she were not under a treatment order. Accordingly, 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. In her evidence, Dr TD submitted that DN lacks insight into the underlying cause of her presentation and symptoms, which compromises her ability to make decisions about her treatment. Specifically, DN does not understand or recognise that her experiences with her neighbours monitoring her and hearing voices are symptoms of her mental illness. Instead, DN believes the treating team lack the technological knowledge required to understand her experiences which are based in reality as opposed to symptoms of mental illness. Dr TD indicated that because DN is unable to understand she is unwell, she cannot properly weigh the risks and benefits of accepting or refusing treatment for her mental illness. Dr TD gave evidence at the hearing that DN currently lacks decision-making capacity due to an impairment of her mind, namely, her psychotic symptoms which impair her ability to understand the nature of her mental illness and the need for treatment.
2. Ms Olsson submitted that DN's lack of understanding of her symptoms and their relationship to her mental illness is not an impairment in the functioning of the mind or brain. Ms Olsson further submitted that what has been described by Dr TD as paranoid delusions are 'significantly reality based', citing evidence of criminal activity occurring in DN's residential complex. Ms Olsson submitted DN is capable of using and weighing information concerning treatment, as demonstrated by her views on medication. Specifically, her aversion to antipsychotic medication contrasts with her decision to accept Zopiclone. Ms Olsson submitted that DN perceives a benefit in Zopiclone, acknowledging potential risks but considering the benefits to outweigh them. Conversely, DN believes antipsychotic medication offers no benefit and is concerned about side effects. Ms Olsson submitted this reflects DN's ability to weigh the pros and cons of treatment.
3. The Tribunal is satisfied that a lack of insight, also known as anosognosia, is an impairment of the mind or brain. We are satisfied that, in this case, this impairment affects DN's capacity to make decisions about treatment for her mental illness. While this may not always be the case, we were satisfied that it was so at the time of the hearing.
4. Consistent with the decision 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 held at [198] that:

... 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. The Tribunal was satisfied that DN was unable to understand that the symptoms she experienced were manifestations of a mental illness, even when presented with expert opinion and information to the contrary, and this is due to her strongly held delusional beliefs. Similarly, these delusions prevented her from understanding the risks and benefits of treatment. The Tribunal notes her acceptance of Zopiclone, a medication which only treats a symptom of her illness and her refusal to accept Paliperidone which is an antipsychotic medication used to treat the underlying cause of a psychotic illness.
6. The Tribunal found that, due to her lack of insight and fixed delusional beliefs, DN was unable to comprehend that antipsychotic medication might provide her with any benefit whatsoever. Instead, she rationalised the treating team's view, that she has a mental illness that would respond to treatment, as stemming from their lack of understanding of AI technology. While DN does not need to agree with the treating team's views, she must be able to understand and acknowledge them in order to engage with the decision-making process. Due to her lack of insight and fixed delusions, DN was unable to consider the possibility that she may be experiencing symptoms of a mental illness.
7. Whilst DN is certainly entitled to place her own weight and value on information when making a decision, DN needs to first be able to understand the information before considering what value to attribute to it. Due to her delusional thinking, we were satisfied she was unable to do so. We were also satisfied that DN was unable to use or weigh the information, as understanding the relevant information is a necessary foundation for using or weighing the information.
8. Accordingly, we are satisfied that DN does not have decision making capacity within the meaning of the act and this criterion is satisfied.

1. As a result of the hearing, the Tribunal was satisfied that all of the treatment criteria set out in s 40 were met and determined that a treatment order should be made.
2. The treatment order was renewed for a period of six months and is due to expire on 10 December 2025, unless discharged by an approved medical practitioner sooner or an application to renew the treatment order is made (in which case the application to renew will be listed and heard by a three member panel of the Tribunal).