1. The Tribunal's authority to make a treatment order is set out in s 39 of the Act. Section 39(1)(b) stipulates that the requirement under s 37 must have been met by the application before the Tribunal can be satisfied that a treatment order should be made. Section 39(c) requires the Tribunal to be satisfied that the person the subject of the application meets the treatment criteria provided under s 40:

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.

1. Additionally, in deciding whether to exercise our discretion to issue a treatment order under s 39, 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.

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. At the hearing, it was Dr JM's evidence that TKD has a longstanding diagnosis of bipolar affective disorder.
2. This was not disputed by TKD who agreed she had been diagnosed with bipolar affective disorder, although her description was that she had 'minimal sessional issue with bipolar'.
3. Dr JM's evidence was that TKD's current symptoms included elevated mood with goal directed activity, pressured speech, circumstantial and tangential thinking. With respect to goal directed activity, Dr JM noted TKD's high level of motivation to open a café.
4. The Tribunal accepted the undisputed evidence of Dr JM that TKD has a mental illness being bipolar affective disorder. The tribunal finds that TKD has a mental illness within the meaning of the Act. Accordingly, the Tribunal is satisfied that this criterion is 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. 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 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 JM expressed that in his opinion without treatment, TKD's mental illness would be likely to seriously harm her health and safety or the safety of others.
5. Dr JM indicated that without treatment, there is a risk serious of harm to TKD's health. In particular, Dr JM raised his concern that there is a significant risk that TKD's mania if untreated may be followed by a significant depressive episode which has previously been the case.
6. Dr JM also raised concern about the risk of serious harm to others if TKD did not receive adequate treatment for her mental illness. In particular, Dr JM had concerns with respect to the wellbeing of TKD's mother who is 92 years old, frail and residing in aged care. Staff at the aged care facility have recently been concerned by TKD's decisions including to take her mother out for leave when she had Influenza A, failing to arrange her mother's medication for when she is on leave, not returning her mother at agreed times or following leave procedures. Staff also reported that TKD's communication towards them recently has been aggressive and on one occasion the police were called to encourage TKD to leave.
7. TKD's brother was also reported to have raised concerns with the treating team with respect to his mother's safety and felt that TKD's behaviour was influenced by mental illness. Dr JM's evidence was that whilst TKD clearly cares for her mother, due to her mania she has been making impulsive decisions with respect to her mother's care. TKD has recently expressed a wish to move her mother out of her current aged care facility. Dr JM's had concerns for TKD's ability to provide sufficient care for her mother if she wasn't residing in an aged care facility. TKD has previously provided care for her mother at home for a month but this lead to career's fatigue and a depressive episode.
8. Dr JM also raised concerns about TKD attempting to open a small business (cafe) the following week with limited capital. He noted that TKD has identified that she would be relying upon her disability support pension, equity in her home and the sale of a car which requires repairs to finance the business. Dr JM raised concerns about the potential loss of her home should the business fail. He detailed that TKD was very keen to open the business next week but does not appear to have written a business plan or entered into employment contacts for staff. The treating team have concerns that TKD may not have fulfilled all of the necessary legal, financial and employment obligations required to open a small business in a week's time although TKD is confident that it will not be a problem. Dr JM was concerned that TKD's mania may be causing her to overestimate her abilities and diminish the potential risks and barriers to her plans. Additionally, the treating team have concerns that the high cognitive demands, overstimulation and stress of opening a new small business the following week would be detrimental to her mental health.
9. DQ gave evidence that he was concerned by the involvement of TKD's brother as he felt that he had ulterior motives due to ongoing disputes about family finances and inheritance.
10. We accept Dr JM's evidence that, without treatment TKD's mental health would likely deteriorate, and that this poses a serious risk of harm to herself physical and mental health. In particular we note the evidence of Dr JM that in August 2024, TKD was admitted for treatment of depressive relapse with catatonia, psychosis, severe hypothermia and malnutrition. The undisputed evidence before the Tribunal was that this episode was life threatening for TKD and required treatment in intensive care.
11. Based on the evidence presented, we are satisfied that without treatment, TKD's mental health would likely decline, increasing her risk of serious harm to her physical and mental health.
12. 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. Another criterion we must be satisfied of is 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 JM gave evidence that TKD is currently being treated with antipsychotic and mood-stabilising medications. He also sought that benzodiazepine medication and antidepressant medication be included in the order. Dr JM felt that there was a role for benzodiazepine medication in TKD's treatment to manage insomnia and any agitation arising from TKD's mania. Dr JM sought that antidepressant medications also be included given TKD's history of depressive episodes as there is a high risk of TKD experiencing a depressive episode following a manic episode.
3. It was Dr JM's evidence that there has been some early improvement in TKD's current mental state with a small improvement in her mood liability and the speed of her speech and thinking.
4. DQ gave evidence that he has known TKD for a number of years and whilst he has concerns about her mental health currently, he considers that inpatient treatment at this time would be very restrictive, particularly given her plans to open a café next week.
5. TKD gave evidence that she is happy to accept medication. However, TKD would like to leave the facility so that she can open the café next week. TKD told the Tribunal that she but would be happy to return two days per week to receive treatment. TKD didn't feel that inpatient treatment was necessary for her at this time.
6. When asked by the Tribunal if TKD thought she was unwell when first admitted, TKD explained that she was a little too busy but didn't feel that she was overly unwell at the time.
7. Ms Chan told the tribunal that TKD is willing to come back to the facility to receive treatment but TKD should be afforded dignity of risk to make the decision to receive treatment not on an inpatient basis.
8. The Tribunal considered the relevant objectives of the Act, particularly those outlined in ss 12(d) and 12(e), which emphasise that treatment should be provided in the least restrictive setting consistent with clinical need, legal and judicial constraints, public safety, and the patient's health, safety and welfare. The Act also promotes voluntary treatment over involuntary treatment. Accordingly, the Tribunal considered whether the proposed treatment was appropriate and the least restrictive option in the circumstances.
9. It was evident that TKD did not agree that inpatient treatment was appropriate at this time. There was evidence that she considered inpatient treatment unnecessary and was eager to be in the community to facilitate the opening of a café the following week.
10. The Tribunal was not satisfied that TKD could receive appropriate treatment as a voluntary patient in the community at this time. The Tribunal agreed that further inpatient treatment was the most appropriate and least restrictive option available to ensure TKD received adequate treatment for her mental illness.
11. The Tribunal acknowledges the right of TKD to receive treatment under the Act in accordance with the mental health service delivery principles set out in Sch 1, including at 1(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'. However, the tribunal notes that the risk referred to is qualified by the words 'a degree of'. The evidence before the Tribunal was that the risk involved was considerable and more than 'a degree of risk'. The risk had been described as life threatening. The evidence of Dr JM was that when TKD did not previously receive adequate treatment she was hospitalised and spent a period of time in intensive care.
12. We accepted the expert evidence of Dr JM that the treatment proposed in the application is appropriate and effective for TKD as defined in the Act. 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 JM highlighted TKD's history of reducing or ceasing medication against medical advice. Dr JM considered it likely that without a treatment order, TKD would reduce or cease medication as she doesn't currently feel that she is experiencing mania. Further TKD feels that her engagement with the mental health service is as a consequence of her brother's interference who she has an acrimonious relationship with.
2. It was suggested by TKD's that she could receive treatment as an outpatient but return two days per week to the facility for treatment as required. This proposition was put to Dr JM who told the Tribunal that he would have concerns about if TKD would be able to receive adequate care if the manner suggested.
3. He highlighted that TKD is currently admitted as a patient which means she people to encourage her to take her medication, despite this TKD did not remember to take her medication that morning. Dr JM was concerned that if TKD was only having contact with mental health services two days per week, that wouldn't be sufficient enough to have adequate treatment and the risk for deterioration of her mental state would be increased.
4. TKD and her advocate proposed that she be treated voluntarily in the community as an outpatient and return to the facility two days per week for treatment
5. After consideration of the evidence, the Tribunal was not satisfied that TKD could receive adequate treatment in the manner proposed by TKD and her advocate. TKD's mental state was not sufficiently stable to allow for community-based treatment. It was the Tribunal's view that TKD required more intensive and assertive care than could be delivered on an outpatient basis.
6. The Tribunal was satisfied on the evidence that TKD would not be likely to accept inpatient treatment if not under a treatment order. We were satisfied that at that time TKD required a further period of inpatient admission. 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. Dr JM gave evidence at the hearing that TKD did not have decision-making capacity due to a serious impairment of mood as a result of her mania. He explained that TKD's ability to appreciate the nature and impact of her longstanding illness is impaired by symptoms of mania. Specifically, her decision-making was impacted by circumstantiality, tangentiality, loosened associations and impulsivity which limits her ability to reflect and correct errors and appreciate potential risks. Her elevated mood impacts her decision-making due to increased sense of grandiosity and overestimated ability without appreciation of risks or ability to incorporate external feedback.
2. Despite experiencing multiple serious episodes, TKD does not understand the long-term benefits of medication, the importance of adherence in preventing relapse or the potential risks of not receiving adequate treatment.
3. Dr JM expressed concern that the severity of TKD's previous episodes has affected her ability to recall the associated risks and circumstances involved in her previous episodes of illness. She also demonstrates rapid thought and speech with inattentiveness which diminishes her ability to take on new information. Dr JM outlined that TKD has difficulty retaining the information relevant to the decision due to having lots of ideas which impairs her ability to appreciate external information and keep that in mind when making decisions.
   1. Based on the evidence presented, we were satisfied that the presumption of capacity had been rebutted by the applicant. The Tribunal found that TKD is unable to make decisions about treatment due to a disturbance in the functioning of her mind. The Tribunal was satisfied that, due to TKD's mental illness, she is unable to understand or recognise the nature of her current symptoms or the risks associated with not receiving appropriate treatment, including inpatient care.
   2. Although TKD did accept that she has a mental illness, she did not appear to understand the severity of her condition or the need for assertive treatment. It is noted that she described herself as experiencing 'minimal sessional issue with bipolar'. Given that TKD was previously hospitalised for two months and spent some of that time in intensive care, this description does not appear to accurately reflect TKD's circumstances.
   3. Further TKD did not appear to appreciate that she was currently experiencing mania but rather had been admitted due to her brother's interference. As noted above, TKD did not think she was unwell when she was admitted, just busy. Due her lack of appreciation of her current mental state, it is difficult for TKD to adequately assess her current health needs including if there is a need for inpatient admission. Although TKD expressed a willingness to receive treatment in the community, the Tribunal was not satisfied that the treatment she was willing to accept would be adequate.
   4. We were satisfied on the evidence that due to the impairment in TKD's mood that she was unable to weigh up the pros and cons of treatment and reach a decision.
   5. Accordingly, we are satisfied that TKD does not have decision-making capacity 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 made for a period of six months and is due to expire on 1 April 2026, 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).