Citation:	HMC (Application for Treatment Order) [2025] TASCAT 109

Division:	Protective

Stream:	Mental Health

Parties:	HMC (Patient)

Dr HZ (Applicant)

	
Hearing Date:	16 May 2025

Hearing Location:	Hobart via video conference

Date of Orders:	16 May 2025

Date Reasons Issued:	29 May 2025

Panel:	Mr S Thompson, Senior Member
Dr E Walker, Ordinary Member (Psychiatrist)
Mr G Storr, Ordinary Member 

Orders Made:	Treatment order made for 6 months.

Catchwords:	Mental health – Application for treatment order – Psychotic disorder – Consideration of treatment criteria – Treatment order made.

Legislation Cited:	Mental Health Act 2013, ss 4, 6, 7, 12, 37-39, 40, 53, 195, Sch 1.

Cases Cited:	B v Mental Health Tribunal [2020] TASSC 10;
CMB v Mental Health Tribunal [2021] TASFC 4; (2021) 33 Tas R 306;
S v Mental Health Tribunal [2016] TASSC 34; (2016) 26 Tas R 48;
SI (60 Day Review Hearing) [2025] TASCAT 29.

Representation:	Patient: R Olsson – Tasmania Legal Aid
		
File No:	2025/MHT12282
		
Publication Restriction:	The decision has been anonymised for the purpose of publication.		

REASONS FOR DETERMINATION
Introduction
1.	HMC (the patient) is a woman in her late 60s who ordinarily lives in southern Tasmania.
2.	The applicant is a psychiatrist. He applied for a treatment order under the Mental Health Act 2013 (the Act), s 37 in respect of the patient. A single member of the Tribunal made an interim treatment order under s 38.
3.	We heard the application on 16 May 2025 and, at the conclusion of the hearing, made a treatment order. A statement of reasons has been requested. These are our reasons.
Statutory requirements
4.	Section 39 of the Act allows the Tribunal to make a treatment order. Sub-section (1) allows the Tribunal to make a treatment order “if, and only if, it is satisfied that”: 
(a) an approved medical practitioner has applied for a treatment order in respect of the person; and
(b) the requirements of section 37 have been met in respect of the application; and
(c) the person meets the treatment criteria; and
(d) a treatment plan has been prepared for the person; and
(e) the requirements of section 53(2) appear to have been met with respect to the treatment plan.
5.	Section 37 prescribes further requirements of an application for a treatment order. The section states:
37.   Application for treatment order
(1)  Any approved medical practitioner may apply to the Tribunal for a treatment order in respect of a person.
(2)  The application may be made whether or not the person is subject to an assessment order.
(3)  If the person is subject to an assessment order, the application should only be made if –
(a) the applicant has assessed the person under the authority of the assessment order; and
(b) the applicant is satisfied from the assessment that the person meets the treatment criteria.
Note
The treatment criteria are set out in section 40.
(4)  If the person is not subject to an assessment order, the application should only be made if –
(a) the person has been assessed by the applicant and one other approved medical practitioner, separately, within the preceding 7 days; and
(b) the applicant and the other approved medical practitioner are both satisfied from their respective assessments that the person meets the treatment criteria.
(5)  The application in relation to a person is to be in accordance with section 195 and be accompanied by –
(a) a statement by the applicant affirming that (and explaining how) the person meets the treatment criteria; and
(b) .  .  .  .  .  .  .  .  
(c) an indication as to whether an interim treatment order is needed; and
(d) if the person is subject to an assessment order, a copy of that order.
(6)  The applicant is to –
(a) give a copy of the application to the person (together with a statement of rights in a form approved by the President of the Tribunal); and
(b) place a copy of the application (and accompanying documentation) on the person's clinical record (ensuring that such a clinical record is created if one does not already exist).
6.	Section 40 prescribes the treatment criteria. They are that:
(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.
7.	In deciding whether to make a treatment order, we must have regard to the Act’s objects in s 12 and the ‘mental health service delivery principles’ in Sch 1. The principles are:
(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.
The hearing
8.	The hearing was conducted by video link. The patient and Dr SD, a psychiatry registrar, appeared from a hospital in southern Tasmania, together with Nurse B. Dr SD gave evidence in support of the application. Ms Olsson appeared via video link.
9.	In addition to the evidence given at the hearing, we considered the written application filed by the applicant. His application addressed the five treatment criteria and included a:
a.	treatment plan;
b.	properly affirmed assessment order, including an assessment of the patient’s capacity; and
c.	form authorising urgent circumstances treatment.
10.	The proposed treatment involves the patient being admitted and, if necessary, detained at an approved facility and administered antipsychotic, mood stabilising, antidepressant, benzodiazepine, and anticholinergic medication. It also involves requiring the patient to attend community mental health appointments, submit to testing, and accept home visits.
11.	Ms Olsson cross-examined Dr SD, led evidence from the patient, and made helpful submissions relevant to the treatment criteria. In substance, the patient opposes the treatment order and submits that the criteria are not satisfied and that the application should be dismissed.
Formal requirements
12.	In the absence of any evidence or submissions to the contrary, we are satisfied that the written application met the formal requirements prescribed by ss 37 and 39(1) of the Act.
Treatment criteria and the patient’s background
13.	The hearing focused on the treatment criteria required by s 40.
14.	Ordinarily, the patient lives with her son in southern Tasmania. She was admitted to hospital after taking an overdose of medication. It is not disputed that this was part of a suicide attempt, although whether the suicide attempt was the result of mental illness or, as the patient contended, an unfortunate confluence of events, was disputed. For reasons which we will endeavour to explain, it is unnecessary for us to make a finding on that point.
15.	The patient told us, and we have no reason to doubt, that she took an overdose of medication after seeking treatment at a hospital in a different part of the state. She told us that she was seeking treatment for an unrelated physical condition in respect of which she was refused treatment and police were called. The patient was distressed about this and later took an overdose. It was this overdose which led to the application for a treatment order and the patient’s admission as an in-patient at a hospital in southern Tasmania.
16.	Dr SD gave evidence that the patient had been assessed at least three times while in hospital, most recently by himself the day before the hearing. The most recent assessment occupied approximately half an hour.
17.	The patient also told us that she does not want to remain in hospital. She described the beds as “disgusting” and said that she would be more comfortable at home. She denied having suicidal thoughts since the aforementioned suicide attempt and said that she “won’t do it again”. She denies having delusions and does not want to take medication against her will.
The patient has a mental illness – section 40(a)?
18.	Section 4 defines a mental illness. Sub-section (1) relevantly states:
(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.
19.	Dr SD told us that the patient has a complex psychiatric history and has been assessed by several consultant psychiatrists over several years. Dr SD opined that the patient has a primary psychotic disorder which may relate to a mood disorder and/or underlying paranoid personality disorder (the latter two we understand to be secondary diagnoses). He considered her to have a serious impairment of mood, volition, and perception, and significant hostility to her treating team. These included persecutory delusions and bizarre beliefs, such as one that the patient’s sternum was open and her heart exposed to the air.
20.	The patient maintained her belief that her sternum remains open following her open-heart surgery which occurred some time ago, denying this to be a delusion. She told us that she had never had a mental illness and that her suicide attempt (which led to her admission) was a “mistake” which she would not do again.
21.	Ms Olsson submitted that the patient did not have a mental illness and that her suicide attempt was situational (i.e. not evidence of a mental illness).
22.	It is unnecessary for us to determine whether the patient’s suicide attempt was the product of her mental illness. Dr SD’s evidence, combined with the applicant’s evidence in his written application, satisfies us that the patient has a psychotic disorder. In reaching this conclusion, we have placed comparatively little weight on the patient’s hostility towards her treating team and the medication overdose. We consider these to be less indicative of the patient having a mental illness than the balance of the evidence given by Dr SD and the applicant.
23.	We are satisfied that the patient’s psychotic disorder amounts to a serious impairment of thought and perception. We are therefore satisfied that the patient has a mental illness for the purpose of s 40(a).
Without treatment, the mental illness will, or is likely to, seriously harm the patient’s health or safety or the safety of other persons – section 40(b) 
24.	In S v Mental Health Tribunal [2016] TASSC 34; (2016) 26 Tas R 48, 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.
25.	For the purposes of the Act, the word ‘likely’ means “something more than a remote or theoretical possibility… something that might well happen”: B v Mental Health Tribunal [2020] TASSC 10 at [14].
26.	Ms Olsson submitted that the patient was neither at risk of suicide nor a risk to others.
27.	Dr SD gave evidence that the patient was refusing treatment because of a lack of insight into her mental illness and treatment. In particular, the patient was non-complaint with her insulin medication for her diabetes. He considered there to be a risk of deterioration of the patient’s physical health arising from not taking her insulin medication. We accept Dr SD’s evidence.
28.	In addition, we find there to be a risk to the patient through neglect and misadventure as the result of her delusions. While we do not necessarily elevate this to suggest that the patient is at risk of suicide, we are satisfied that, without treatment, the patient’s mental illness is likely to seriously harm her health or safety.
The treatment will be appropriate and effective in terms of the outcomes in s 6(1) – section 40(c)
29.	Treatment is defined in s 6(1) of the Act. The threshold for whether treatment is appropriate and effective is “fairly low”: S v Mental Health Tribunal (supra) at [22]. Treatment may meet this criterion even if it is directed towards merely managing the ill-effects of mental illness, or even monitoring a person’s mental state: s 6(1)(b) and (d).
30.	We have outlined the proposed treatment above. We have not repeated the patient’s current treatment in further detail to protect her privacy and ensure that her identity is not disclosed. 
31.	Ms Olsson told us that the patient was uncomfortable in hospital and concerned about the negative side effects of her medication. Dr SD explained that the medication is aimed at reducing the patient’s distress from delusions and addressing the elevated risks arising from these and other symptoms. He considered the medication to be necessary, particularly at this early stage of the patient’s treatment.
32.	We find the treatment to be evidence-based. We consider the treatment to be appropriate and effective and, subject to one exception relating to mood stabilising medication which we explain below, accept Dr SD’s evidence.
33.	We were satisfied that this criterion is met.
The treatment cannot be adequately given except under a treatment order – section 40(d)
34.	The application outlined, and we accept for reasons set out under the fifth criterion, that the patient lacks decision-making capacity. She is therefore unable to consent to the proposed treatment. It follows that the treatment cannot be adequately given except under a treatment order.
35.	Moreover, the patient’s own evidence and the evidence of Dr SD satisfies us that the patient opposes the proposed treatment and would not be compliant with it absent a treatment order. Indeed, Ms Olsson conceded that the treatment could not adequately be given except under a treatment order, but disputes the need for treatment on the basis that the treatment is unnecessary and the patient does not want unnecessary treatment.
36.	We have already found the treatment to be necessary. We are satisfied that treatment could not adequately be given except under a treatment order.
The patient does not have decision making capacity – section 40(e)
37.	Section 7(1) presumes an adult to have decision-making capacity about his or her own assessment or treatment unless:
(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).
38.	In applying s 7(1), we follow what the Tribunal said in SI (60 Day Review Hearing) [2025] TASCAT 29 at [149]-150]:
[149] Similarly we agree that the threshold of capacity under the Act is a relatively low one. It only requires a person to be able to understand, retain and use or weigh the information and communicate a decision in the terms of the general nature, purpose and effect of the treatment. There is not a requirement that a person has a high level of understanding at a level similar to that of their treating team.
[150] With respect to capacity, we acknowledge that 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.
39.	Dr SD gave evidence that the patient is preoccupied with her delusions, which derail conversations and lead to disorganised thoughts. He considered, and we accept, this to lead to an inability to adequately retain information relating to the patient’s mental illness and her treatment. The applicant’s written evidence suggests that the patient has had difficulty recognising and remembering members of her treating team, which suggests an impaired capacity to retain information.
40.	Moreover, Dr SD opined, and we accept, that the patient’s delusions and disorganised thought render her unable to adequately understand information relating to healthcare decisions and risks to her. Our observations during the hearing were that the patient was unable to focus on or address topics relating to her treatment, instead reverting to her delusions. 
41.	Dr SD also expressed concerns regarding whether the patient has a cognitive impairment, although he noted that no formal diagnosis (for example, of dementia) had been made. We mention this for completeness, as it is neither a formal diagnosis nor the basis of our findings as to the treatment criteria.
42.	Ms Olsson submitted that the patient has decision-making capacity and that “bad decisions” or the patient’s disagreeability towards her treating team did not amount to a lack of capacity. There is some force in the latter part of this submission. We accept that the patient’s suicide attempt and her hostility towards her treating team do not, of themselves, amount to a lack of decision-making capacity. However, Dr SD’s oral evidence and the applicant’s written evidence about the patient’s delusions and disorganised thoughts, and the doctors’ conclusions relating to these, satisfy us that the patient does not have decision-making capacity.
The Tribunal’s residual discretion
43.	We are satisfied of the formal requirements and that the patient meets the treatment criteria in s 40. However, that does not compel us to make a treatment order. The Tribunal retains a residual discretion whether to make an order. In exercising that discretion and in considering the treatment criteria, we have had regard to the Act’s objects in s 12 and the ‘mental health delivery principles’ in Sch 1. In CMB v Mental Health Tribunal [2021] TASFC 4; 33 Tas R 306, Pearce J said at [31] (Wood and Geason JJ agreeing):
Patients are to be subject to the least restriction, but only as far as is consistent with public safety and patient health, safety and welfare. Moreover, the submission that the terms of the legislation favour "patient autonomy" carry little weight when, at the relevant time, the patient is incapable of making an autonomous decision. In my view it is for the Tribunal to weigh the various, sometimes competing, considerations and to reach the appropriate balance.
44.	While we were satisfied that it was appropriate to make a treatment order, we were not satisfied that the order should authorise mood stabilising medication. We find that mood stabilising medication to be directed towards the possible secondary diagnoses, not the primary diagnosis of a psychotic disorder. Having regard to the uncertainty of the secondary or alternative diagnoses and the importance of interfering in the patient’s rights in the least restrictive way, we are not satisfied that we should authorise mood stabilising medication.
45.	Subject to the variation by removing mood stabilising medication, we are satisfied that a treatment order is consistent with the Act’s objects and the mental health delivery principles. 
Conclusion and orders
46.	We are satisfied that it is appropriate to make a treatment order. We made that order on the day of the hearing, being 16 May 2025. The order will expire on 15 November 2025 unless discharged sooner by an approved medical practitioner under the Act or renewed.