S v Mental Health Tribunal

• (A) is authority for the patient to be admitted to and if necessary detained in an approved facility for the purposes of receiving 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. mood stabilising medication 3. benzodiazepine medication 4. 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.

1. Standard medical and/or blood, and/or urine tests and/or diagnostic radiological and medical imaging tests, as clinically indicated and as directed by the treating team.
2. Adult Community Mental Health Service (ACMHS) appointments (inclusive of home visits as arranged when being treated in the community).
3. On 25 February 2025 DQ-D was discharged from the approved facility where he was receiving treatment. DQ-D subsequently failed to comply with this treatment order by refusing the medication specifically provided for in the treatment order. A failure to comply notice was issued on 27 February 2025.
4. On the 28 February 2025 the Tribunal received a Chief Psychiatrist Form 22, titled "readmission of patient on treatment order" completed by Dr LET in respect of DQ-D being readmitted to an approved facility on 27 February 2025.
5. The Form 22 completed by Dr LET indicated she had determined that s 47 of the Act applied to DQ-D and requested that DQ-D be involuntarily admitted to an approved facility stating that;

Patient presenting with psychotic symptoms in the context of medication non adherence > > .... > > Has not been taking his meds and has worsening of his symptoms > > .... > > Aggressive, threatening to kill > > .... > > refusing to engage in out patient treatment worsening aggression, carrying knives as weapons > > ....

6. On the date the Form 22 was received by the Tribunal, a single member of the Tribunal, on the papers varied the terms of the treatment order insofar as the treatment setting was varied from community to an approved facility.

1. Section 181(1)(d) of the Act provides that the Tribunal must conduct a review of a treatment order after receiving notification of matters arising in the Form 22. A Notice of Hearing was issued to interested parties by the Tribunal's Registry on 28 February 2025 at 9:27 am. The hearing was held on 28 February 2025 at 2:00 pm via video link. The hearing was attended by Dr QL, Dr LET, and medical student LN, noting Dr LET joined the hearing shortly after commencement.
2. DQ-D did not wish to attend the hearing and was not represented. The Tribunal determined to proceed with the hearing in his absence.
3. The application and associated supporting documentation were all filed by DQ-D's treating team. No documentary evidence or written submissions were filed by DQ-D.
4. The following material available at the hearing was :

(i) Variation of Treatment Order dated 28 February 2025;

(ii) Readmission of Patient on Treatment Order Form 22 dated 27 February 2025;

(iii) Variation of Treatment Order dated 25 February 2025;

(iv) Discharge of a Patient from an Approved Facility dated 25 February 2025 signed by Dr QL;

(v) Treatment Order dated 14 February 2025;

(vi) Interim Treatment Order dated 10 February 2025;

(vii) Application for Treatment Order dated 10 February 2025 signed by Dr TEB;

(viii) Treatment Plan dated 10 February 2025 signed by Dr HLZ;

(ix) Affirmation of Assessment Order dated 6 February 2025 signed by Dr KD;

(x) Discharge of Assessment Order dated 10 February 2025;

(xi) Urgent Circumstances Treatment dated 7 February 2025 signed by Dr LS;

1. Dr QL gave evidence that DQ-D had failed to comply with the treatment order, particularising he had failed to take the medication specified by the order and that he required an ongoing treatment order to ensure his compliance. At the conclusion of the hearing on 28 February 2025, we affirmed the treatment order which is due to expire on 13 August 2025. We also heard evidence from Dr LET.

1. The legislative pathway which requires the Tribunal to conduct a review of a treatment order in the current circumstances of DQ-D is detailed below.
2. The starting point is s 181 of the Act, the relevant provisions of which provide:

181. Review of treatment order > > (1) The following provisions govern the review of a treatment order: > > ...... > > (d) the Tribunal must review the order within 3 days after being notified of the patient's admission to an approved hospital pursuant to section 42(3) if the admission is pursuant to section 42(2)(b); > > ...... > > (g) on review, the Tribunal may affirm, vary or discharge the order.

42. Effect of treatment order > > (1) A treatment order is authority for the patient to be given, without informed consent, the treatment, or type of treatment, specified in the order. > > (2) A treatment order is authority - > > (a) for the patient to be admitted to and, if necessary, detained in an approved facility, or type of approved facility, for the purposes of receiving treatment, if the terms of the order so specify; or > > (b) in any case, if section 47 or section 47A applies in relation to the patient, authority for the patient to be admitted to and, if necessary, detained in an approved facility (other than an SMHU) - > > until whichever of the following first occurs: > > (c) the order is varied so as to provide for a different treatment setting; > > (d) if the detention is authorised under the order, the order ceases to have effect under this Act.

4. Given that DQ-D was readmitted to an approved facility utilising Form 22, the relevant provisions that triggered the requirement upon the Tribunal to conduct the review, in accordance with s 42(b) is s 47:

(b) reasonable steps have been taken to obtain the patient's compliance with the order; and

(c) the treating medical practitioner is satisfied on reasonable grounds that -

(i) despite those reasonable steps, the patient has failed to comply with the treatment order; and

(ii) the failure in compliance has seriously harmed, or is likely to seriously harm -

(iii) the harm or likely harm cannot be adequately addressed except by way of an alternative treatment or treatment setting (being a treatment or treatment setting that is inconsistent with the treatment order).

(2) If this section applies, the treating medical practitioner may, according to the circumstances -

(a) apply to the Tribunal, under Division 2 of Part 3 of Chapter 3 , to vary the treatment order; or

(b) seek to have the patient admitted to and, if necessary, detained in an approved facility under and in accordance with section 42 ; or

(c) authorise urgent circumstances treatment under section 55 if the treating medical practitioner is an approved medical practitioner; or

(d) seek authorisation to give urgent circumstances treatment under section 55 if the treating medical practitioner is not an approved medical practitioner.

(3) However, the treating medical practitioner is not, by any of the processes referred to in subsection (2) , to seek to have a patient who is a child admitted to and, if necessary, detained in an approved hospital unless the treating medical practitioner is satisfied that the hospital -

(a) has facilities and staff for the treatment and care of the patient; and

(b) is, in the circumstances, the most appropriate place available to accommodate the patient.

Failure to comply with treatment order and the role of the Tribunal

1. As set out in previous decisions of the Tribunal in BD (Failure to Comply with Treatment Order) [2023] TASCAT 55 and KX (Failure to Comply with Treatment Order) [2022] TASCAT 95, a notice of a patient under a treatment order being admitted to an approved facility under s 47 of the Act operates as a trigger for us to review the patient's treatment order. This power of review comes from s 181 of the Act.
2. In conducting a review pursuant to s 181 of the Act, if the Tribunal decides not to discharge an order, it has the power of affirmation or variation in relation to s 42(2)(a):

(a) for the patient to be admitted to and, if necessary, detained in an approved facility, or type of facility, for the purposes of receiving treatment, if the terms of the order so specify;

1. On review the Tribunal must discharge a treatment order unless it satisfied that the person still meets the treatment criteria.

1. Section 39 of the Act sets out what we must be satisfied of when making a treatment order. Section 39(1)(c) requires the person to meet the treatment criteria, which are listed in s 40 of the Act. These criteria are:

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. In conducting such review we need to be mindful of the objects of the Act provided for in s 12:

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. Lastly, in exercising our responsibilities under the Act, we must consider the mental health service delivery principles set out in Sch 1 of the Act (s 15: see B v Mental Health Tribunal [2020] TASSC 10 at [39] and CMB v Mental Health Tribunal [2021] TASFC at [31]). Schedule 1 provides:

SCHEDULE 1 - Mental health service delivery principles

2. 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

(iv) needs related to trauma-informed care;

(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;

(v) to provide a mental health service that -

(i) is easily accessible, and safe; and

(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 consideration of the evidence in relation to each of the treatment criteria.

1. Dr QL's evidence was that the DQ-D has a mental illness, specifically a long-standing diagnosis of schizo-affective disorder. She reported his admission in December 2024 was his second or third admission in recent times. He is currently psychotic hearing voices, experiencing persecutory delusions and thought insertions. He also has a forensic history in Western Australia with numerous admissions. Dr LET agreed with this assessment of DQ-D's mental illness.
2. We also had available to us the application for treatment order of 10 February 2025 which advises the DQ-D has an extended history of schizo-affective disorder complicated by comorbid antisocial personality disorder. He had his first psychotic episode at the age of 20 and was well-known to mental health services in Western Australia prior to relocating to Tasmania.
3. The definition of mental illness in the Act is:

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. We accept the evidence of Dr QL that DQ-D has schizo-affective disorder noting that other treating medical practitioners have attributed such diagnosis to DQ-D. No evidence was presented on behalf of the DQ-D to the contrary. We find that DQ-D has a mental illness.

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

1. Dr QL's evidence was that DQ-D's mental health had deteriorated without treatment, that he had become argumentative and aggressive to others, in particular to staff at his home and as a result of his aggressive behaviours, he was now homeless. DQ-D is reported as demonstrating an escalating aggression, evidenced by him being very verbally aggressive, and slamming doors.
2. Dr LET also reported that when unwell, DQ-D carries knives and as a result there is a high risk to others. In addition, we have the benefit of Form 22 dated 27 February 2025 at 8:22 pm which details DQ-D is aggressive and threatening to kill, further detailing that he is refusing to engage in outpatient treatment with worsening aggression and is currently carrying knives as weapons.
3. Section 40(b) of the Act has been the subject of interpretation by His Honour Blow CJ (as he then was) in two matters.
4. First, in S v Mental Health Tribunal [2016] TASSC 34 at [22], his Honour held:

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 patient's health, which of course includes the person's mental health.

5. Subsequently, his Honour provided additional comments as to the interpretation of this criterion in the matter of B v Mental Health Tribunal [2020] TASSC 10 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 principle 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.

6. Dr QL opined that without appropriate treatment DQ-D's condition would continue to deteriorate, he would continue to experience psychotic symptoms, and this would lead to a serious decline in his health. DQ-D's own safety is also at risk now that he is experiencing homelessness.
7. Dr LET also was of the view that there was a risk to other persons as a result of his aggressive behaviour and the fact that he carries knives. DR QL stated there was also a risk to DQ-D's reputation.
8. We accept the uncontradicted evidence of Dr QL that without treatment, DQ-D's mental illness is likely to seriously harm his health. It was also accepted on the evidence given DQ-D's recent behaviours that there could be a risk to others and his safety seriously impacted given that his aggression is escalating and that he carries knives as weapons.
9. This criterion is satisfied.

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

1. A further criterion which we must be satisfied of in order to exercise the discretion to make a treatment order is that the treatment proposed will be appropriate and effective in terms of the outcomes referred to in s 6(1):

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) assess a person's mental state.

1. Comments in obiter as to the intention of the legislative criteria were made by Blow CJ (as he then was) in the matter of S v Mental Health Tribunal at [23]:

Although s 40(c) uses the words "the treatment will be appropriate and effective", it is clear that the legislation is intended to apply to mentally ill individuals whose symptoms cannot be treated or ameliorated in any way. For the purposes of s 40(c) treatment will be "appropriate and effective" if it is treatment directed towards the management of the ill effects of mental illness, or even just the monitoring of a person's mental state: s 6(1)(b) and (d).

2. Dr QL advised that the medication used for DQ-D is evidence based treatment which has been effective in the past in treating his mental illness and controlling his symptoms. She further reports DQ-D is currently being treated as an inpatient in the high dependency unit. We accepted the evidence of Dr QL that the treatment to be provided to the DQ-D under the order has found to have been effective in relation to his schizo-affective disorder. We were satisfied that the treatment is directed towards the management of the ill effects of DQ-D's mental illness. This criterion is satisfied.

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

1. Dr QL's evidence on this criterion was that due to DQ-D's current lack of decision-making capacity, and a history of variable willingness to accept treatment, currently refusing the medication, treatment could only be adequately given under a treatment order. Dr LET further confirmed the treatment could not adequately be given except under a treatment order.
2. DQ-D was discharged on 25 February, and only 2 days later he had ceased taking his medication, which led to a worsening of his symptoms. These symptoms include becoming very verbally aggressive, slamming doors, refusal to engage, escalating aggressive behaviour and making threats to kill.
3. While conscious of the objects of the Act for treatment to be given in the least restrictive setting, and to promote voluntary treatment over involuntary treatment (s 12(d)(e)), the evidence before us satisfied us that the treatment proposed by Dr QL could not be adequately given without the existence of a treatment order. The evidence is that DQ-D does not agree with the diagnosis attributed to him.

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

1. Decision-making capacity for the purposes of the Act is defined 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. It was Dr QL's evidence that DQ-D currently does not have decision-making capacity. Dr QL described his judgement as currently being impaired due to the symptoms of his mental illness, namely his delusions and hearing voices. She further opined that DQ-D's thinking processes are impaired, he is unable to retain information relating to his illness and treatment, he is unable to understand how medication will help the treatment of his mental illness, and he is further unable to use and weigh information provided to him in relation to his treatment.
2. Dr LET agreed DQ-D does not have decision making capacity and she opined he does not understand the consequences of not having medication advising he is unable to correlate his symptoms to the risks involved in not having medication.
3. We were satisfied that DQ-D does not currently have decision-making capacity as defined in s 7. The criterion in s 40 (e) is met.

1. As detailed, we were satisfied that DQ-D meets the treatment criteria provided in s 40. Accordingly, there was no evident basis as to why the order should be discharged. The remaining question therefore was whether we should affirm or vary the order.
2. Dr QL sought no variation to the treatment order. We place significant weight on the evidence of Dr QL that DQ-D currently requires treatment to reduce his psychotic episode and that he lacks capacity to make decisions about his treatment because his thinking process has been influenced by the symptoms of his mental illness which he is currently experiencing. The optimal treatment setting for DQ-D is at the approved facility, as evidenced by DQ-D breaching the treatment order merely two days after his discharge into the community. At the time of the hearing, we do not accept that there were grounds for us to make any variation to the order that would result in DQ-D being able to be treated only in the community at this time.
3. Accordingly, we affirmed the treatment order and made no variations.

1. The Tribunal affirms the treatment order made on 14 February 2025 and subsequently varied, such last variation made on 28 February 2025.