Under section 55(1)(b) of the Mental Health Act 2014 (Vic) the 7 August 2015 order of the Mental Health Tribunal is revoked.

1. WCH[2] was first hospitalised in respect of a mental illness in 1991. In 1993 he was diagnosed with schizophrenia. WCH was last admitted as an inpatient for treatment for a mental health condition in 1999. For the last 16 years he has been subject to community treatment orders made by the Mental Health Review Board and its successor, the Mental Health Tribunal (MHT). Under those orders, his diagnosed illness has been managed in the community. The last such order was made by the MHT on 7 August 2015 and WCH has asked VCAT to review that decision.
2. WCH does not agree that he has schizophrenia. He accepts that he has, from time to time, suffered from depression and is willing to continue to be treated for that condition, as required. However, WCH wishes to have the current community treatment order set aside so that he is no longer subject to compulsory treatment, which he says infringes on his freedom of thought and rights as an Australian citizen.
3. It is WCH's intention to undertake a carefully managed and slow reduction in the anti-psychotic medication he is currently taking - that plan pays regard to the fact that, given the length of time he has been receiving the medication, it would be risky to cease immediately. He plans to then be monitored for another year to ensure that he remains well and does not relapse. WCH plans to undertake this process voluntarily but with supervision from his current treating service, Sale Community Mental Health Service (the service).
4. A person may only be subject to compulsory treatment under the Mental Health Act 2014 (Vic) (MH Act) if the four specified criteria discussed below are met.
5. For the reasons set about below, based on the evidence before me, I have decided that WCH does not meet three of the four statutory criteria.
6. In particular, I am satisfied that, having regard to WCH's intention to undertake a managed and supervised medication reduction under the care of the service - a course of action which has been described as 'a reasonable therapeutic strategy' - there is a less restrictive means of treatment available to WCH and so that criteria is not met.
7. Where all four mandatory criteria are not met, I am required to revoke the MHT order made on 7 August 2015.
8. It is convenient to note here that there were two important differences in respect of the conduct of the hearing before me and that held before the MHT. WCH was legally represented before me and so I had the benefit of submissions on the factual material and on the legal issues raised. I also had before me reports from Ms C, WCH's private treating psychologist, and independent expert, Dr Lester Walton. I also heard from Dr Walton. The hearing took the better part of a day. The consequence was that I had before me more detailed evidence and material than that which was available to the MHT.

1. On 7 August 2015, the MHT made a determination that WCH be subject to a 52 week community treatment order, expiring on 6 August 2016. After receiving the MHT statement of reasons, WCH applied for review of the order. After some time was allowed for a further review of WCH to be undertaken and discussions about hearing locations, a hearing was held on 29 January 2016.
2. As is usual in these matters, the MHT was excused from attending the hearing. I heard from WCH and his treating doctor, Dr A and his case manager, Ms B, both of whom attended by video link and telephone to represent the service. Dr Walton attended to give expert evidence on WCH's behalf. I had before me Dr A's 3 August 2015 report on compulsory treatment and her supplementary report. I also had Dr Walton's 21 December 2015 expert report, a report dated 26 November 2015 from WCH's treating psychologist, Ms C, extracts from the WCH's medical records and the MHT's statement of reasons.
3. I was assisted by the written and oral submissions presented by Mr McLachlan of Victoria Legal Aid, acting on behalf of WCH, and by the careful evidence given by Dr A and Ms B on behalf of the service.

1. As indicated above, the MHT order was made under the MH Act taking into account the criteria for treatment which is contained in section 5 and other relevant matters.
2. VCAT's role is to determine, as at the date of the hearing, whether WCH meets each element of the section 5 criteria such that he should continue to be treated under a community treatment order. It is also required to make its decision having regard to matters set out in section 55(2) of the MH Act, which include the person's views and preferences about treatment of his or her mental illness and the reasons for those views and preferences, including any recovery outcomes that the person would like to achieve. VCAT must also consider the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter) and its application to the decision under review.
3. The treatment criteria which must be met in order for a person to be made the subject of a treatment order are set out in section 5 and are as follows:

(b) because the person has mental illness, the person needs immediate treatment to prevent -

(i) serious deterioration in the person's mental or physical health; or

(ii) serious harm to the person or to another person; and

(c) the immediate treatment will be provided to the person if the person is subject to a temporary treatment order or treatment order; and

(d) there is no less restrictive means reasonably available to enable the person to receive the immediate treatment.

1. If VCAT is satisfied that each element of the treatment criteria is met, it must make a treatment order (section 55(1)(a)). If satisfied that the treatment criteria is not met, any existing order must be revoked (section 55(1)(b)).
2. Section 4(1) says that, subject to subsection (2), 'mental illness' is a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory. Section 4(2) says that a person is not to be considered to have mental illness by reason only of any one or more of a list of matters which include the person's religious beliefs and the fact that the person has previously been treated for mental illness.[3]
3. There was no issue that, if a community treatment order was made, the service would provide the treatment. In those circumstances, there has been no need for me to consider the section 5(c) criteria further.

1. Neither party in this proceeding bears the onus of proving its case. Rather, I am required to stand in the shoes of the MHT and make what I consider the correct and preferable decision having regard to the evidence before me and a proper interpretation of the MH Act.
2. WCH's solicitors submitted that, having regard to the test to be met before a person can be subjected to compulsory treatment under the MH Act and the fact that treatment of that kind impinges on a person's liberty, it was appropriate to apply the standard described in Briginshaw v Briginshaw.[4] I accept that submission. The standard requires a tribunal to actually be persuaded that a fact in issue exists. It must consider the seriousness of the matter at hand and the gravity of the consequences flowing from a particular finding and determine whether the matters in issue have been proven to its reasonable satisfaction. That state of satisfaction is not likely to be reached based on uncertain proofs or evidence or where findings are reached by drawing indirect inferences.
3. When reviewing a decision of the MHT, VCAT acts as a public authority and is therefore bound by the Charter when doing so.[5] VCAT must also ensure that, when interpreting legislative provisions, is does so, so far as possible, in a manner which is consistent with their purpose and in a way that is compatible with human rights.[6] It is well recognised that personal liberty is a foundational human right.[7]
4. WCH contends that the rights engaged in this case, include:
   • (a) The section 10(b) right not to be treated in a cruel way;
   • (b) The section 10(c) right to freedom from medical treatment without full, free and informed consent;
   • (c) The section 13(a) right not to have one's privacy unlawfully or arbitrarily interfered with;
   • (d) The section 14(1) right to freedom of thought, conscience, religion and belief;
   • (e) The section 15 rights to hold and communicate an opinion without interference; and
   • (f) The section 24 right to a hearing by a competent, independent and impartial court or tribunal.
5. Applying the standard of proof discussed above, mindful of the special role of the Charter when interpreting the meaning of the relevant provisions of the MH Act, I have found on the evidence before me that three of the treatment criteria do not apply to WCH. As a consequence it has not been necessary for me to separately consider whether each of the above rights are engaged.

1. WCH lives independently. He recently completed Certificate IV studies achieving a distinction grade. He plans to undertake a diploma course next and then a university degree. He enjoys making artworks, particularly clothing and crafts.
2. WCH has a close family and sees them regularly. His parents have been and continue to be a source of important support for many years, along with WCH's sister. WCH's parents have plans to undertake travel in the coming years. WCH has a number of close friends he sees weekly. He is a member of a church which he attends regularly. In his evidence he described the church as a close community of brothers and sisters and said members see each as other as family.
3. WCH has been seeing the same psychologist since June 2006. He has attended more than 80 one hour sessions. Ms C's 26 November 2015 report records that WCH initiated the therapeutic relationship and so has always attended voluntarily. The report says that, over the years, WCH has worked with her to increase his understanding of himself, his family and his goals for the future.
4. The material before me indicates that WCH consistently attends his appointments with the service and the records show that he is engaged and sociable when doing so. While from time to time he experiences stress, frustration and other difficulties and has sometimes sought additional support, there was no material before me to indicate any significant conflict with the service or any failure to adhere to the terms of the community treatment orders made in the past. Ms C suggested in her report that WCH's adherence to the terms of the orders might arise in part because of his preference for routine and predictability.
5. I will now turn to the treatment criteria and the evidence before me.

1. WCH's current diagnosis is chronic schizophrenia. The treating team say that WCH has a significant disturbance of mood and memory.

1. The August 2015 report on compulsory treatment says that WCH has a 'history of significant bizarre delusions, depression and at times elevated mood. His mood is dependent on his stressors from time to time'. WCH is treated with depot anti-psychotic medication together with mood stabilising medication and other medication to address side effects of these.
2. In a supplementary report dated 16 December 2015 prepared for VCAT, Dr A said she had first assessed WCH on 2 February 2015 and again on 12 July and 15 December 2015. The case manager Ms B first met WCH in early 2015. As is not uncommon in matters of this kind, over the years a number of psychiatrists and case managers have treated and worked with WCH. The current team relies on WCH's history as revealed by his medical records and their individual expert experience.
3. In the 16 December 2015 report, Dr A stated that, during the 12 July 2015 assessment, WCH expressed 'paranoid ideation in the form of others suspecting him to be a paedophile but during other assessments he denied experiencing psychotic symptoms.' She later said:

There was an oddity in him and eccentric behaviours were evident. At times there was magical thinking.

There was an innocent grandiosity about WCH in relation to his educational achievements. It was probable that his interest in pursuing studies was his way of proving to others of his intelligence. He, however, was unable to see beyond being a student and had little interest in using his educational achievements to secure employment.

WCH attributed his poor functioning prior to being on the depot to his parents dissuading him from doing studies and refused to consider that it was probably the poorly controlled schizophrenia that interfered with him achieving prior to being on the depot.

In the latter two assessments there was an attempt by WCH to rationalise his behaviours during relapses in the past. The documentation at the time noted behaviours that digressed from being normal and it was labelled as being due to psychosis at the time. It seemed that WCH was deliberately negating his past experiences during relapses for the purpose of proving that he did not have a psychosis.

1. The relapses referred to by Dr A were as follows. There were no notes available about these events so the following descriptions came from Dr A and Ms B:
   • On 23 September 2009, WCH presented to the emergency department. The notes apparently referred to him saying he was going 'blank' but he was unable to say anything more specific. WCH was referred to as upset and distressed. He went home the next day. The treating doctor suggested that the presentation was secondary to WCH's delusional beliefs. WCH was said to have gone home and punched pillows; and
   • In 2010 WCH's medication was changed. The records did not make clear when the changeover commenced. Dr A noted that the records showed that in early 2010 WCH wanted to be 'off the planet' and that in March 2010 he still had a belief in a higher being. These thoughts were not troubling him at the time. There were references at that time to his soul escaping, reptiles and his body going into a dream state. Apparently, in September 2010, WCH said that the change of medication had improved his quality of life in terms of sedative effects but he still did not believe he had a need for medication.
2. Dr A and Ms B said that, in around August 2011, WCH sought assistance from a recovery program offered by the service called PARCs. I was told that patients in that program may come and go as they please and can access a range of services including counselling. While not entirely clear, it appeared that WCH's engagement with that program lasted for a short period and there was no admission to hospital or other change of treatment. What was clear was that WCH sought assistance rather than being compelled to undertake involvement with this aspect of the service. The medical notes produced to VCAT show that in April 2012 there was a plan for WCH to be admitted to PARCs for 'mindfulness training and stress relief'. The notes show that in May 2012, WCH was admitted to PARCs at his request because he was feeling stressed. It was not clear how long he stayed.
3. Other than what Dr A referred to as a paranoid delusion in the 16 December 2015 report, the treating team confirmed that there have been no other relapses or signs or symptoms of illness for many years. Dr A attributes that to the effectiveness of the medication. I noted that in the MHT statement of reasons, Dr A said the diagnosis of chronic schizophrenia was 'certain'. She stated that the diagnosis continues to apply even if there are no symptoms. She said that it was not usual for a person with schizophrenia to have no symptoms. She confirmed her opinion that the stability and absence of any relapse or troubling experiences since 2011 was likely to be because of the effectiveness of the medication.
4. Dr A said that WCH only showed a disturbance of memory when anxious. The only example offered came from Ms B and concerned a time in 2015 when, it appeared, there was a mix up about an appointment. Ms B explained that someone attended WCH's home and it was unkempt and WCH was very anxious.
5. As to mood, in addition to the 2009 and 2010 events described above, reference was made to a time in 2013 or 2014 when WCH appeared to show some frustration and throw a backpack. It was suggested that was an example of 'decompensation' - a term which refers to frustration, agitation and anger without cause. The treating team was unable to provide any more information about when this incident occurred or the context in which it took place.

1. Dr Walton's 21 December 2015 report records that, during the course of his assessment, WCH sought to provide benign explanations for the events in the 1990's including what have been regarded as psychotic phenomena. Dr Walton's opinion was that there was a valid diagnosis of schizophrenia in the 1990s. He explained that as the illness was present for some years, it would be correctly described as chronic. He added 'there is a concept that the diagnosis would continue to apply thereafter even in the absence of obvious significant further symptoms.' When asked to explain this statement at the hearing, Dr Walton said that the vast majority of people with the diagnosis of chronic schizophrenia will have other episodes of illness or at least symptoms (such as a deterioration in social skills and functioning) even while receiving treatment. He stated that it is possible for a person to have an episode of illness and for it to resolve. Symptoms may not occur because of the effectiveness of treatment or because there is no need for any treatment.
2. On his examination in December 2015, Dr Walton found that WCH displayed no symptoms of illness and, as indicated by the documentation, had not done so for many years. Dr Walton found no evidence of a significant disturbance of thought, memory, mood or perception. As to memory, he commented that the suggestion that there was a significant memory problem did not sit well with WCH's educational successes. As indicated earlier, there is no dispute that WCH had experienced depression in the past but Dr Walton found no sign of depression at the time of his assessment.
3. Dr Walton was asked how one would know whether WCH was symptom free because of the effectiveness of the medication or for another reason. His response was that the only way to find out was to implement a cautious reduction in medication.

1. In her report, the psychologist Ms C expressed an opinion that WCH may have Asperger's or be on the autism spectrum and so that may explain his behaviour. Dr Walton expressly rejected that as unlikely and so I leave that aspect of Ms C's report to one side.
2. Ms C stated that, in the nine years she had been seeing WCH, she had only observed four disturbances involving some anger, frustration and anxiety. None had required hospitalisation. She stated that WCH has strong beliefs on a range of topics, none of which have a significant impact on his ability to function or appear to have presented as the cause of any risk to himself or others. Her report included the following:

At his worst he has displayed the following: coming to a standing position, talking louder and quicker, talking over the top of what was being said and not letting the other person comment. Within the session and without intervention [WCH] returned to his seat, settled and the session finished in a less stressful manner.

1. She also said that, in her experience, she had not heard of anyone with WCH's diagnosis having such long and sustained periods of functioning well despite changes in medication and environmental factors. She also noted that WCH had always been compliant with medication and that was often an issue for people with schizophrenia.

1. As indicated earlier, WCH does not accept the diagnosis of chronic schizophrenia. That has been his position for the whole of the time he has been involved with mental health services. He does not believe that he requires medication other than for depression from time to time. WCH said that he is entitled to freedom of belief. He stated that the compulsory treatment had taken away his rights as a citizen.
2. At the hearing, WCH presented an explanation for his behaviour in the 1990s. He said that he left home and tried to set up a new identity. He said he told people (presumably hospital staff and police) that his parents were in the UK and that he had been brought up in a cult. Investigations were undertaken to try to identify him. This led to some of the comments he made about the British Secret Service. He met Mr J Kennett once in the context of the young Liberals and Mr Kennett said something to the effect that WCH should be aware of what he was doing and that he might get into trouble. WCH said he became involved with a group who wanted to solve the mysteries of the heavens. He described it as a political group which ultimately fell apart. He said that his references to being a reptile in around 1997 were concerned with a dream. At that time he was writing a book which included conspiracy theories and the medical people misinterpreted what he was saying. He became interested in the new age movement. He did not really hold views about parallel universes and the like - he was trying to make money. I understood WCH to be saying that he was putting on an act as he said he was trying to be a 'con man'.
3. When asked if, at the relevant times, he was distressed by any of the ideas, events or other matters described in the report on compulsory treatment, WCH said no. He was only distressed by being in conflict with mental health services.
4. As to the discussion with Dr A about being accused of being a paedophile, WCH's solicitor drew my attention to Ms B's notes about an incident in July 2015 consistent with what WCH said to Dr A. As I understand it, WCH told Ms B that he was having lunch in his preferred location near a children's playground when someone called him a paedophile. The notes stated that he was upset and struggling because of this but came to the decision that he was not going to change his dining spot due to bullies.
5. WCH's solicitor also noted that the relapses described by Dr A had not been referred to at any point in the reports on compulsory treatment written in respect of the earlier compulsory treatment orders nor had those events been mentioned in the MHRB or MHT statements of reasons.

1. The question before me is whether at the time of the hearing, WCH had a mental illness - that is a significant disturbance of thought, mood, perception or memory. The word 'significant' must be given weight. In this context it means important and of consequence.[8]
2. As mentioned earlier, WCH first came into contact with mental health services in 1991. During the period 1991 to 1999 he was admitted to inpatient units a number of times. The report on compulsory treatment refers to statements and behaviour recorded in WCH's medical notes. The report refers to WCH displaying erratic and eccentric behaviour which caused concern. The notes show that at the time WCH had a particular interest in extra-terrestrial ideas and beliefs and his particular role in them. Reference is made to WCH being involved with others solving the mysteries of space; of him having previously inhabited a reptilian body and astral-travel.
3. Having regard to the opinions of Dr A and Dr Walton I accept that, in the period 1991 to 1999, the diagnosis of chronic schizophrenia was valid. I accept that WCH had very troubling delusions consistent with the MH Act definition of mental illness.
4. I further accept that it is possible for such a diagnosis continue to be applicable to a person who is receiving appropriate treatment and, as a consequence, to a person who is not experiencing symptoms of the illness or episodes of illness. Both Dr A and Dr Walton said this can occur. Where they part company is on the question of whether the reason for symptoms largely disappearing for a long period of time could be because the illness has resolved or subsided.
5. There is no material before me to show that WCH recently had or currently has a significant disturbance of thought. The MHT statement of reasons note that Dr A told it that WCH had not displayed any thought disorder in the time she had known him. There was no suggestion that WCH had a disturbance of perception.
6. As is apparent from the above discussion, everyone agreed that at the time of the hearing and probably since 2011 (and as early as around 2000), WCH had not exhibited any symptoms or behaviour consistent with a significant disturbance of mood and memory.
7. I consider it more probable than not that Dr A misinterpreted the playground incident and that it in fact took place as described. Although I heard from Dr A, I have been unable to make much use of her statement that there was an 'oddity' in WCH and that his sometimes eccentric behaviours and interests indicated he has a mental illness. I do not have a clear sense of what she meant by there being at times 'magical thinking'. The comments about WCH's attitude about and motivations in respect of his studies do not go to memory or mood.
8. I accept Dr Walton's opinion that in recent times there has been no sign that WCH has had a significant disturbance of memory and that such a position would not sit comfortably with his academic achievements. That conclusion is consistent with the August 2015 report on compulsory treatment.
9. I do not consider one missed appointment last year could be a sufficient basis to allow a finding of mental illness to be made. The notes include reference to a missed appointment at WCH's home on 16 April 2015. They say the house had not been vaccumed and his bed was not made and these were early warning signs of increasing anxiety. The subsequent notes state that the housework was attended to over the following four days. On my overall review of the notes, from time to time appointments were re-scheduled due to the unavailability of members of the treatment team and/or WCH. Minor disruptions of this kind are to be expected in an ongoing therapeutic relationship.
10. Leaving the depression to one side, the most that can be said on the current evidence is that, from time to time, WCH has shown signs of frustration, anxiety and upset. Those episodes have resolved without a change in medication or other intervention. I give particular weight to Ms C's report and her dealings with WCH over the last nine years. Taking that report into account, it would appear that WCH is currently managing his emotions and mood well.
11. All of these matters lead to the question whether the effectiveness of the medication WCH is taking is masking what would otherwise be symptoms of illness within the definition. Before me were two very experienced psychiatrists with differing views about this question.
12. In resolving the question, I have had regard to section 4(2)(o) of the MH Act which makes plain that previous mental illness is not a basis on which to find current mental illness. Consistent with section 4(2)(b), I have put WCH's religious and spiritual beliefs to one side.
13. While I accept that there may have been two or more instances of WCH experiencing frustration, upset or anxiety in the last eight to nine years, that does not assist me to determine whether he currently has a significant disturbance of mood. Taken together with the acknowledged episodes of depression, WCH's ongoing frustration at his involuntary dealings with the mental health system and the usual ups and downs of life we all experience, I am unable to find that those instances demonstrate that WCH has chronic schizophrenia or a mental illness as defined by the MH Act.
14. The question before me is whether I am actually persuaded on the basis of cogent evidence that WCH currently has a significant disturbance of thought or mood. Having regard to Dr Walton's evidence that it is unusual for there to have been no symptoms or episodes of illness for such a lengthy period and the possibility that the previous illness has resolved or subsided, I cannot be satisfied to the requisite standard that this aspect of the criteria is met.
15. Having made that finding, strictly is not necessary for me to consider any of the remaining criteria. In case I should be incorrect about whether WCH has a mental illness as defined, I have considered whether there is a need for treatment as set out in section 5(b) of the MH Act and also whether the immediate treatment is reasonably available in a less restrictive manner under section 5(d).

1. Section 5(b) requires me to decide whether WCH requires immediate treatment to prevent a serious deterioration in his mental or physical health or serious harm to himself or another person.
2. As I understand it, the treating team considers that WCH requires immediate treatment in the form of anti-psychotic medication of the kind he currently receives.
3. Mr McLachlan submitted that I must be satisfied that, without treatment, there would not only be a deterioration in WCH's health, but one that may be regarded as serious. As to the alternative, I must be satisfied that without the immediate treatment there would be a serious risk of harm to WCH or to another person. The word 'serious' has been described as having a meaning which includes 'important, demanding consideration and not slight or negligible'. The Macquarie Dictionary defines the term, in the context of an illness as 'giving cause for apprehension; critical'. The word 'harm' has been defined as including 'hurt, injury or damage'.[9] I accept and apply those definitions. Necessarily, the following analysis assumes that WCH has a mental illness within the definition.

1. Dr A described WCH's illness as being just below the surface. She made particular reference to the two instances of relapse in 2009 and 2010 discussed earlier. I understood that she was satisfied that what WCH experienced on each occasion was a manifestation of the illness.
2. As to the risk of deterioration and the seriousness of any such deterioration, Dr A referred to the events which occurred in the 1990s. Emphasis was placed on the fact that in around 1999 WCH attempted to commit suicide. That matter also goes to the risk of serious harm to WCH.
3. Dr A referred to an event in 1996 when apparently WCH believed himself to be involved in a television programme. Police became involved when he was found on top of a building throwing things off its roof. Dr A said that behaviour placed WCH and others at risk of harm. She made reference to medical records apparently made in the 1990s which referred to WCH making comments of a sexual nature and appearing to indicate an interest in rape or biting others. The report on compulsory treatment did not mention these matters and rated the risk to others as being a moderate risk of accidental harm.
4. Most importantly, Dr A and Ms B expressed concern about the risk that, if WCH became unwell again, his independence might be affected and his capacity to continue with the studies and other activities which give him so much meaning and enjoyment could be adversely affected. That might lead to depression and distress on the part of WCH.
5. WCH's parents will be away in the near future, potentially for a lengthy period of time. Dr A was concerned that without their support and capacity to identify signs that WCH may not be managing, he would be at greater risk. I noted that the PARCs admission in April 2012 referred to above, seemed to have occurred while WCH's parents were away.

1. Dr Walton accepted that there were risks to both WCH and potentially others during the period 1996 to 1999 when WCH has very unwell. He noted though that, despite the suggestion that WCH had made comments related to harming others, he had not acted on those thoughts. He expressed the view that the current risk to others arising from those matters was very slight.
2. As to the relapse associated with the medication change in August 2010, Dr Walton said that it sounded like the episode did not last long, that there was limited disturbance to WCH's mental state and limited distress. He queried whether WCH's behaviour at that time was coincidental with the change of medication given that such a change would usually involve the substitution of an equivalent dose of one medication for another. I understood he conceded there might have been an issue about whether an effective dose of the replacement medication had been reached at the relevant time.
3. Dr Walton's opinion was that there was a risk of deterioration in WCH's health if he did not continue to receive the treatment but that it could not be meaningfully quantified. He said that any reduction of medication would have to be carefully managed and monitored. Dr Walton said WCH having been well for such a long time was a good sign and a favourable indication that WCH may remain well. Dr Walton suggested that this fact may be attributable to the changes WCH had made in his life rather than the medication. He stated that the risk of relapse was low and so the risk of harm to WCH and others was also low. He accepted that there was a risk of WCH's studies being adversely affected if he became unwell and that might also worsen WCH's general mental wellbeing.
4. His opinion was that, even once medication had been reduced or removed, it was difficult to say when a deterioration might occur - he suggested it may take months or years. He commented that, if there were signs that WCH was becoming unwell and he resisted treatment in response, then WCH could be again made subject to a compulsory treatment order.
5. In his report and at the hearing Dr Walton suggested that a compromise may be open - that is for the order to be continued while the current medication is gradually reduced. That would make it easier for WCH to be monitored and for him to be treated, and if necessary hospitalised. Dr Walton understood that I was unable to make an order in respect of the type and dose of medication and so this was a matter the parties would have to agree on.
6. Dr Walton said in his report that, while acknowledging there was a risk in a trial reduction and possible cessation of the anti-psychotic medication, that seemed to him to be 'a reasonable therapeutic strategy'.

1. The written and oral submissions made on WCH's behalf emphasised the fact that it was not apparent from the material before me that WCH's mental or physical health would deteriorate if he was not receiving the current treatment. They asserted that the material did not establish that there was a need for immediate treatment in order to prevent such a deterioration.
2. The submissions noted that WCH had not been hospitalised since 1999. Further, on the available material, the consequences of a reduction in medication as appears to have occurred in around 2010, could not be described as serious - as noted earlier, there was a voluntary presentation to the emergency department, an overnight hospital admission and some upset on returning home. WCH's solicitor again emphasised the fact that neither that event nor the 2009 event mentioned earlier had been raised before in any hearing and so one may question how significant they were.
3. Referring to the medical records and the report from Ms C, it was noted that there had been no recent reference to WCH having thoughts of self harm or suicide. Further, while it was suggested that WCH would become disorganised if unwell, the submissions noted the material showing WCH lives a very structured and predictable life. That structure is reflected in his very regular attendance at appointments and his management of his own financial affairs.
4. As to risk to others, the submissions noted that in recent times the most that could be said was that, during a session with Ms C, WCH had come to a standing position, talked loudly and quickly and over others. Mr McLachlan said that cannot be regarded as an example of a serious risk to others.
5. On the basis of Dr Walton's evidence that it may take months or years for a deterioration to occur, the submission was that it had not been shown there was an immediate need for the treatment to prevent a deterioration. WCH's solicitors contended that, if there was a deterioration, then at that point of time treatment could be provided to avoid the deterioration becoming serious.
6. WCH's submissions placed emphasis on the supports WCH has in place including his family, friends and religious community. In addition, Ms C stated in her report that WCH would continue to attend appointments with her and she would ensure that they had a clear agreement that she would take action if she believed that WCH was becoming unwell.
7. The submissions also made reference to section 11 of the MH Act which sets out the Mental Health Principles. Principle 1(d) states that persons receiving mental health services should be allowed to make decisions about their assessment, treatment and recovery that involve a degree of risk. While accepting there is a degree of risk in WCH's preference to cease his medication, his solicitor contends that, taking into account the safe manner planned for that to occur, such a decision would be consistent with principle 1(d).

1. When considering section 5(b) I must proceed by considering whether the material before me demonstrates that immediate treatment is required to prevent WCH's mental or physical health seriously deteriorating or him or others suffering serious harm.
2. Having regard to the evidence above, even if I were satisfied that WCH currently has a mental illness, it is not clear that he currently requires treatment. Where both Dr A and Dr Walton agreed that it was unusual for a person with chronic schizophrenia to have been well for so long with no significant relapse or breakthrough episode, it would be open to me to question whether any treatment is required at present. That is because there is a possibility that the previous illness has resolved or subsided such that no treatment is necessary.
3. I accept that with any reduction and/or cessation of medication, there is a risk that WCH will again become unwell.
4. However, the evidence before me does not reveal there to currently be a clear risk of deterioration or harm to WCH or others which can be described as serious. With such limited evidence about what triggered the behaviour described above in 2009 and 2010, I cannot with confidence find that it is more probable than not that there was then a deterioration associated with the mental illness. In any event, the consequences for WCH could not be described as important, demanding of consideration, giving cause for apprehension or critical.
5. While I accept that when very unwell in the 1990s WCH may have presented a risk of harm to himself and others, there is nothing before me to show that either of those risks are current. As noted by Dr Walton, other than the roof incident in 1996 and the suicide attempt in 1999, since then there has been nothing to indicate that WCH has taken action or is likely to act in a manner to cause that kind of harm to himself or others. A level of disorganisation would not be helpful but not necessarily serious.
6. The support and assistance available from family, friends, Ms C and others are relevant to the question of less restrictive alternatives to be discussed below but also here. As discussed at the hearing, I do not consider it appropriate to make findings which depend on family or friends monitoring the mental wellbeing of a person and being expected to intervene and report the person to mental health services. Having said that family and friends are an important source of emotional support for WCH. While his parents are likely to be less available, the strong social connections WCH has developed will mean he can seek assistance when he feels that is necessary.
7. In addition to having an ongoing therapeutic relationship with Ms C, the medical notes show that WCH seeks medical care from his general practitioner as required, such as when he is feeling physically unwell.[10]
8. What is striking about the notes is that WCH has consistently sought help and an opportunity to talk about matters that were troubling him. The notes show numerous instances when, during his weekly appointments, he spoke to the treating team about problems he was having with friends, relationships, studies and practical matters, such as bills. The notes show that WCH readily told the team if he was or had been feeling low. The notes indicate that the immediate problems or feelings were resolved on the day or soon thereafter through talking and problem solving.[11] I am not aware of any occasion when, due to one of these events, WCH's medication was increased or otherwise changed. As I understand it up to around mid-2013 there were times when WCH made use of the services offered at PARCs - usually at his request - but there were no hospital admissions.
9. I consider that this pattern of WCH seeking help and support is relevant to the likelihood of a serious deterioration if immediate treatment is not provided. Given the significant role the service has played in his life for 16 years, it seems to me unlikely that he would cease engaging with the service to deal with day to day problems in future. Taken together with the engagement with Ms C and his friends and family, it seems unlikely that WCH would experience a 'serious' deterioration in his mental health without opportunities for that to be recognised and appropriate support and treatment to be offered.
10. Other than the risk of deterioration in his mental health and a reduction in his self-care, there is no material before me to show that WCH would be at risk of physical harm and certainly no material to suggest that he would harm himself if he was not treated. I accept Dr Walton's view that, even at the times WCH was most unwell, there was no sign he had acted on any thoughts about harming others. There was no material before me to show that he has expressed any such intention or thoughts in the last 16 years. The most I could see in the notes was a discussion, around November and December 2013, of an intention to end a friendship which was upsetting WCH.[12]
11. There is no doubt that it would be detrimental for WCH to reduce or cease medication and then become unwell to the extent that his current independence, enjoyment of life and his studies were disrupted. I agree with Dr A's concerns that not only would WCH's mental wellbeing suffer but the loss of things which give WCH so much meaning would likely worsen his overall health and wellbeing.
12. However, having regard to the material before me I am not actually persuaded that without treatment there would be a deterioration in WCH's mental health which would be serious or a risk that there would be serious harm to WCH or others. I am satisfied that conclusion is consistent with the section 11 Mental Health Principles and a Charter consistent interpretation of section 5(b).
13. I am not satisfied that criteria 5(b) is met.

1. I have set out above the relevant evidence on this question.
2. Even if I am incorrect in finding that criteria 5(a) and (b) are not met, I am more than satisfied to the requisite standard that there is a less restrictive treatment available to WCH.
3. As discussed earlier, while WCH does not believe that he requires treatment with anti-psychotic medication and wishes it to cease, he understands that he would have to come off the medication in a gradual and managed fashion, potentially over about 12 months. He has said that he will ensure he is monitored for another year after that.
4. At the hearing, the service confirmed that it would be able to manage that process with WCH and so he could continue to be treated by practitioners who know him in a familiar environment. The service did not support WCH's plan, considering it likely that he would experience deterioration quickly. Dr A emphasised that, if such a plan was put in place, WCH would have to realise that there would be a risk that he would become unwell and experience negative consequences including interruption to his studies and his overall stability.
5. Dr A expressed concerns that if WCH experienced similar events to those she described in 2009 and 2010, there might not be the required level of risk to meet the criteria for involuntary treatment. I understand that she was concerned that, by the time WCH met the criteria for treatment, his mental state would be significantly worse and that would lead to problems in the effectiveness of treatment and recovery.
6. It seemed to me the service was confused about the difference in application of the criteria for compulsory treatment on renewal of an order such as is before me and a fresh order. They are of course the same and so, if WCH became unwell, the question as to risk would be whether immediate treatment was required to prevent a serious deterioration in WCH's mental or physical health. It would not be necessary for a deterioration of that kind to have already occurred for an order to be made provided there was a proper basis to find that the risk was of the kind set out in section 5(b).
7. As discussed above, WCH will continue to see Ms C for psychological treatment, with a clear agreement about the circumstances when she might act. With a ready willingness to consult with his general practitioner when he is feeling unwell and a history of seeking support from the service, I am persuaded that there will be many opportunities for any adverse consequences of medication reduction to be identified and, ideally, addressed with WCH's consent and co-operation.
8. As noted earlier, in the unusual circumstances of WCH's presentation, Dr Walton considered such a plan to be a reasonable option provided a psychiatrist supervised. I understand the effect of his evidence to be that such a trial would make clear whether WCH still has chronic schizophrenia and whether the illness requires treatment or whether WCH is one of the few people whose illness resolves. As noted earlier, Dr Walton said it was possible that any re-emergence of the illness may not occur for some months or even years.
9. Dr Walton's view was that, if the medication reduction was undertaken in a managed fashion, any deterioration which was of concern would be apparent to WCH's medical practitioners and, if necessary, WCH could be required to be treated as a compulsory patient. I understood WCH's solicitor to agree that would be a possible outcome.
10. Allowing WCH to become a voluntary patient engaging in treatment in order to reduce and potentially eliminate the medication he has been receiving for 16 years is consistent with his dignity as a person and principle 1(d). That is because it would allow him to make decisions about his own treatment and recovery having assessed the risk associated with that treatment. It would also be consistent with VCAT's section 55(2) obligation to take into account WCH's views and preferences and WCH's Charter rights.
11. I acknowledge that the current plan for a slow medication reduction is relatively new and might seem at odds with WCH's previously expressed intentions to not take the anti-psychotic medication at all if he is not under an order. However, given WCH's long term stability, his clear intelligence and his capacity to manage his day to day life and emotional problems as they arise, I am satisfied that he has the capacity to give informed consent to this course of action in the way discussed in sections 68 and 69 of the MH Act.
12. In that light, WCH falls squarely within the MH Act's objective of being treated in the least restrictive way possible with the least possible restrictions on his Charter rights and human dignity. It is also consistent with the MH Act's objectives to enable people to make and participate in decisions about treatment and recovery and to promote recovery.[13]
13. Accordingly, I am satisfied that setting aside the MHT order and allowing WCH to be treated as a voluntary patient is a less restrictive means of treatment that is reasonably available.
14. The section 5(d) criteria is not met.

1. Having found that three of the treatment criteria contained in section 5 of the MH Act do not apply to WCH, I must set the MHT order aside and will so order.
2. At the hearing, I emphasised to WCH that, if I reached such a conclusion having regard to the factual material before me and on the application of the law, I would be doing so having placed significant weight on the medication reduction plan being implemented in the way described and within the context of close supervision and support. I cannot make my order subject to WCH doing so but encourage him to exercise his rights with prudence and in accordance with medical advice.

[1] These reasons have been corrected so they contain the correct spelling of the applicant's solicitor's name.

[2] On 19 October 2015, VCAT made an order under the Open Courts Act 2013 (Vic) that the applicant was to be known as WCH and that prohibited the publication of any information which may lead to the identification of WCH. In those circumstances, in these reasons, the names of the members of the treating team involved in this matter and WCH's treating psychologist have been anonymised.

[3] Section 4(2)(b) and (o).

[4] [1938] HCA 34; (1938) 60 CLR 336.

[5] See: section 38(1) of the Charter; Kracke v Mental Health Review Board & Others [2009] VCAT 646; EWL v Mental Health Tribunal [2014] VCAT 1152.

[6] Section 32 of the Charter.

[7] See Kracke and Antunovic v Dawson [2010] VSC 377.

[8] Macquarie Dictionary, Sixth Edition.

[9] Macquarie Dictionary, Sixth Edition; JHM VMHT 29, 9 February 2015.

[11] For example, see notes for 28 February 2012, 3 and 11 September 2012 and 23 May 2013.

[12] Also see notes in respect of other friend related issues: 7 June 2012 and 8 January 2013.