The application details there is a risk to SK due to concerns his physical health will deteriorate, noting the evidence SK has significant physical health concerns including atrial fibrillation. This condition will deteriorate if SK is not taking the appropriate medication to treat it.
Dr HZ's evidence indicated that without treatment for his mental illness, SK's disinhibition and impulsivity puts him at risk of misadventure. He is also at risk of being unable to manage his activities of daily living on his own, due to his distractibility. The application advises that he is at risk of relationships with his family members/friends deteriorating due to his behaviours.
SK is also at risk of making financially poor decisions, e.g. impulsive purchases or ill-advised investments. We note that evidence from TT and confirmed by MK was that SK's move from NSW to Tasmania and his purchase of a business in Tasmania occurred during a period of elevated mood and impulsivity.
The application also details the risk to other persons may increase if SK is left untreated due to his irritability and labile mood. It is clear that without treatment, SK's overall health is at risk. Dr HZ told us that the risks to SK without treatment, would be a deterioration of his mental and physical health. Dr HZ detailed:

We are satisfied on the evidence presented that without treatment, SK's mental health will continue to decline, there is an increasing risk of deterioration in his physical health, posing a risk to his health and safety, and possibly a risk to the safety of others. It is these factors which enable us to be satisfied that without treatment, SK's health and safety and the safety of others may seriously be harmed.

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

Before exercising the discretion to make a treatment order, we must be satisfied 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) assess a person's mental state.

The treatment is to be given to SK as an inpatient and when well enough, it is suggested that he receive treatment in the community. The application details the treatment and the proposed use of antipsychotic medication, mood stabilising benzodiazepine, and anticholinergic medication, noting antipsychotics and mood stabilisers are recommended for the treatment of bipolar disorder and antipsychotics and benzodiazepines may help manage SK's anxiety/agitation. The proposed treatment of antipsychotics and mood stabilisers are recommended for the treatment of manic illness.
We accepted the expert evidence of Dr HZ that the treatment proposed in the application is appropriate and effective for SK as defined in the Act.

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

Dr HZ confirmed that SK had refused the two most recent doses of medication, notwithstanding SK stated he might take medication in the future, and that if he was on a treatment order, he would take it. The application details that SK lacks capacity to make decisions relating to his assessment and treatment and SK believes that the drugs "set him off". SK confirmed that he would not take medication in the absence of a treatment order. MK gave evidence that when well SK ceases taking his medication because he had done this previously.
We accept the evidence of Dr HZ that the treatment cannot be adequately given except under a treatment order. We note the evidence of SK that he would not accept treatment, nor would he take medication in the absence of a treatment order.
We are satisfied that the treatment cannot be given except under a treatment order.

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

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). > > (4) In this section - > > information relevant to a decision includes information on the consequences of - > > (a) making the decision one way or the other; and > > (b) deferring the making of the decision; and > > (c) failing to make the decision.

Dr HZ advised in his application that the symptoms SK has exhibited which are a manic episode, and his diagnosis of bipolar affective disorder significantly impact upon his perception and understanding of the world around him.
Dr HZ stated:

SK does not understand that his behaviours are due to symptoms of a mental illness. SK does not understand why he was brought to hospital and the risks of his current presentation to himself. His disorganisation of thought precludes him being able to use and weigh information regarding his treatment. The severity of SK's symptoms including his distractibility and thought disorganisation, precludes him from appropriately weighing up the risks and benefit of treatment versus non-treatment to reach an informed decision.

While SK acknowledges he has bipolar disorder he disagrees that his current symptoms are as a result of that mental illness. While he is able to communicate, he does not appreciate risks and benefits of the treatment proposed and he is unable to engage in proper discussions, he does not understand that the distressing symptoms he is experiencing are as a result of his mental illness, nor does he understand the benefits of the proposed treatments.
He is unable to understand the risks of deterioration of his mental and physical health without treatment. He does not appreciate the risks of not taking prescribed medications. Dr HZ gave evidence that in his view, SK does not have capacity to make decisions about treatment and has a thought disorder which impairs his ability to retain information in relation to treatment. When asked whether he thought he was mentally unwell, SK's answer was:

Since I have a head on collision I've had major brain damage, I don't know that's why I asked for help.

When asked whether SK thought he had been manic in these past few weeks, SK responded:

No, I've been high. I've been high but not manic.

Do you think that, you know, major stress has set off your bipolar disorder and that you've been manic lately?

I believe that that led up to what the doctors are seeing now, but when they had that accident I was in such shock.

Sounds like while you've been in hospital, sometimes you're feeling OK, but other times you're very upset and distressed or upset and angry and sometimes shouting. What do you think that is, if it's not a manic episode?

Well, it boils down to this. I love being on my own because I've had so many people upset me in the last few months, including my wife. I just want to be on my own, me and Patches. Patches is my dog. His name's Harrison, but his middle name is Patches cobba, and him and I get on fine. He's going to be my little carer.

Where a patient has an established and long-standing diagnosis of mental illness and continues to not understand they have that mental illness due to the symptoms it produces, the Tribunal has previously found they may lack decision-making capacity in relation to their treatment. In SI (60 Day Review Hearing) 2025 TASCAT 29, at [150] - [151], the Tribunal considered the principles espoused by Bell J in PBU and NJE v Mental Health Tribunal [2018] VSC 564, and acknowledged that:

150. ...[A] lack of insight into the diagnosis alone is not sufficient to conclude that a person lacks decision-making capacity. Instead, a lack of capacity is a factual issue that can be relevant in evaluating a person's ability to understand, retain, and use or weigh the relevant information, which may support a determination of incapacity.

151. However, we are challenged by the concept that a person who cannot recognise that they have a mental illness and recognise the symptoms of that illness due to an impairment in the function of their mind or brain can still have decision making capacity. This is because they cannot understand how the information is relevant to them and so cannot weigh up or use the information to reach a decision in the abstract.

In SI at [154] the Tribunal determined the patient lacked decision-making capacity relating to treatment for her mental illness, because:

154. ...SI has a distorted perception of reality as a direct consequence of her illness and this forms the lens through which she views her circumstances and by which she weighs information related to her illness and its potential treatment.

While we note that SK acknowledges he has bipolar disorder we are satisfied that due to SK's thought disorder he is unable to understand the symptoms of his mental illness which require treatment to minimise the risk it poses to his health if untreated. He is unable to understand that the symptoms he experienced were symptoms of a mental illness, noting that he felt he was "on a high". The thought disorder prevents him from being able to understand the risks and benefits of treatment. He is unable to comprehend that medication might provide him with any benefits and believes that medication has caused him to be unwell. We are also satisfied that SK is unable to use or weigh the information and understand the relevant information, this being a necessary foundation for using and weighing information. Accordingly, we are satisfied that SK does not have decision-making capacity and this criterion is satisfied.

We are satisfied on the evidence before us at hearing that SK meets the treatment criteria under s 40 of the Act.
Consequently, we made a treatment order in respect of SK on 28 February 2025 which remains in place until 27 August 2025.

SK (Application for Treatment Order) [2025] TASCAT 53 (26 March 2025)

S v Mental Health Tribunal [2016] TASSC 24;

B v Mental Health Tribunal [2020] TASSC 10;

SI (60 Day Review Hearing) [2025] TASCAT 29;

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

We note this criterion has been interpreted by the Supreme Court in the following matters.
In S v Mental Health Tribunal [2016] TASSC 34, Blow CJ (as he then was) said at [22]:

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 ; 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.

S v Mental Health Tribunal

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SK (Application for Treatment Order) [2025] TASCAT 53 (26 March 2025)