Treatment criteria: compulsory treatment

The treatment criteria, as set out in section 5 of the Mental Health Act 2014, are four requirements that must each be satisfied before a person can be made subject to a temporary treatment order or a treatment order.

These criteria are different from the criteria under the previous Mental Health Act. The 2014 Act in some ways narrows the criteria, reflecting parliament’s clear intention to minimise the use and duration of compulsory treatment.

The treatment criteria

Under section 5 of the Act the treatment criteria are that:

  1. the person has mental illness
  2. because the person has mental illness, the person needs immediate treatment to prevent:
    1. serious deterioration in the person's mental or physical health, or
    2. serious harm to the person or to another person.
  3. the immediate treatment will be provided to the person if the person is subject to a temporary treatment order (or treatment order – where considered by the Mental Health Tribunal), and
  4. there is no less restrictive means reasonably available to enable the person to receive the immediate treatment.

Covered in this section

To help you understand these four treatment criteria, this section covers:

  • the key elements that must be satisfied for each criteria before a compulsory treatment order can be made
  • discussion points to assist in assessing your client’s situation against each criteria and ways in which they may be challenged
  • summaries of relevant cases.

Note: Given the context in which lawyers and advocates will be assisting clients, the section refers by and large to the Mental Health Tribunal needing to be satisfied of relevant matters before finding the criteria met on the evidence, however these apply equally to authorised psychiatrists in making temporary treatment orders.

Practice tips

  • The criteria should be considered sequentially. For example, the ‘mental illness’ the person is found to have under the first criterion (a) must necessarily be the same mental illness from which the ‘serious deterioration’ or ‘serious harm’ in (b) arises. So too, the ‘immediate treatment’ found to be met under s. 5(b) will then be the same ‘immediate treatment’ for the purpose of applying sub-sections (c) and (d).
  • In deciding whether the criteria are met, the tribunal must also ‘to the extent reasonable in the circumstances’ have regard to the range of factors at section 55(2), including the person’s views and preferences about treatment, their reasons and their recovery outcomes. Use this as an opportunity to highlight to the tribunal the person’s individual goals for the future and any reasons for challenging the proposed treatment or preferring alternatives.
  • The tribunal is developing its jurisprudence and publishing de-identified written reasons for its decisions, which are available on Austlii. Some decisions relevant to each of the criteria are noted in the following sections, and new decisions may be added in due course. Whether the criteria are satisfied will depend on the unique facts of each case and, whilst the tribunal is not bound by precedent from its own decisions, the cases illustrate how some tribunals are interpreting the relevant criteria.
  • Despite the change in criteria, in some cases, decisions made by the previous Mental Health Review Board may be relevant.

More information

Read more about:

Section 5(a): the person ‘has mental illness’

The Mental Health Act 2014 (Vic) deliberately amends this first treatment criterion to require greater certainty of the existence of mental illness rather than merely the appearance of it, before a compulsory order can be made.

Note: the comparative criterion for an assessment order requires the person merely ‘appear to have mental illness’.

Whether the Mental Health Tribunal (or authorised psychiatrist) can be satisfied that the person ‘has’ mental illness, as defined under the Act, will depend on the evidence of the person’s current or recent mental state. If it cannot be satisfied, then an order cannot be made.

What is mental illness?

‘Mental illness’ is defined in section 4 as ‘a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory’.

This criterion does not necessarily require a specific, clear diagnosis however evidence of the severity of the illness (or its symptoms), and how recently these symptoms were observed, is relevant to establishing this criterion.

In accordance with the United Nations Convention on the rights of persons with disabilities, a person should be presumed to not have a disability. As such, the client does not need to prove that they do not have mental illness. It is up to the treating team to prove that they have mental illness. Therefore, in the absence of sufficient cogent evidence, it should be submitted that the person does not have mental illness.

For more information, see the Summary of cases relevant to section 5(a).

What is a ‘sig​nificant’ disturbance

The disturbance must be significant. In WCH [2016] VCAT 1190, VCAT determined that ‘significant’ must have meaning and, ordinarily defined, it means ‘important or of consequence’ ([49]). Therefore, a person will not ‘have mental illness’ if there is insufficient evidence to show, at the time of the hearing, that they have a disturbance of thought, mood, memory or perception that is significant.

See Drug-induced psychosis.

What is not mental illness?

Section 4(2) lists factors that are not (in isolation) to be considered indicative of mental illness, including:

  • political opinion
  • religious beliefs
  • illegal or immoral conduct
  • use of drugs or alcohol (though the serious effects from their use can potentially indicate mental illness).

Importantly, the 2014 Act articulates the following additional factors:

  • ‘anti-social behaviour’ (s. 4(2)(j)) (compared with ‘anti-social personality disorder’ in the 1986 Act)
  • ‘past or current involvement in family conflict’ (s. 4(2)(n)), and
  • ‘previous treatment for mental illness’ (s. 4(2)(o)) – a previous diagnosis or history of mental health treatment will not in itself be sufficient to satisfy this criterion.

Psychiatrists must assess and diagnose the person based on their current mental state and the tribunal must also be satisfied that the person continues to have mental illness at the time of hearing.

In the case of LJR [2014] VMHT 74 (1 December 2014) the tribunal found 5(a) was not met since, at the time of the hearing, there was ‘no evidence of persisting mental illness’.

Neurological conditions that are not mental illness

Section 4(2)(k) excludes intellectual disability from the definition of mental illness. Intellectual disability is a condition with specific diagnostic indicators and generally requires diagnosis before age 18.

The section does not extend to excluding all cognitive disabilities. However, while some medical conditions, such as acquired brain injury, autism spectrum disorder and other neurological disabilities, are characterised by significant disturbances of certain functions (such as memory), the clear intention of the Act is to provide a framework for compulsory psychiatric treatment for mental illness – not all conditions that affect the brain.

Neurological disabilities are not amenable to treatment in the same way as mental illness – treatment may address the consequences of the disability but often it does not remedy it or alleviate its symptoms – nor are mental health services necessarily the appropriate setting for effective and least restrictive management of these conditions.

While a medical condition like dementia may be considered ‘mental illness’, it may not be amenable to treatment. This would be relevant to section 5(b). See also the definition of treatment at section 6 of the Act.

Drug-induced psychosis

The question of significant disturbance may be relevant in cases of drug-induced disturbances. While the person may have been significantly disturbed in thought, perception or mood when they were affected by substances, once the substances have been eliminated from a person’s body, there may no longer be evidence of significant disturbance. For some examples where the tribunal has found that a person does not have mental illness, see OJZ [2016] VMHT 2 (4 January 2016), XFI [2015] VMHT 187, and LJR [2014] VMHT 74.

For more information, see the Summary of cases relevant to section 5(a).

Practice tips

  • Use of language: Be mindful of how your client prefers to characterise their diagnosis or describe their illness or symptoms. Many people experience a diagnosis of mental illness as ‘labelling’ and stigmatising. Some people prefer a reference to being a ‘consumer’, others to having a ‘lived experience of mental illness’, or ‘living with mental illness’ or ‘experiencing mental health issues’.
  • It is often difficult to challenge this criterion without supporting medical evidence.
  • If your client disputes their diagnosis or mental illness generally, you can suggest they seek a second opinion (s. 79). The authorised psychiatrist must ensure the person is assisted to seek such an opinion upon request.
  • Look out for evidence of significant disturbances that are not based on observations from clinicians. Collateral information, such as reports from family members, may be important but they should not be determinative. If claims of significant disturbance are based primarily or solely on family reporting, it may not be enough to persuade the tribunal that the person has mental illness.

Discussion points for engaging with your client

  • What do they think about the diagnosis?
  • Do they agree with what their treating team describes as symptoms?
  • If they had a mental illness in the past, what circumstances have changed?
  • Can they provide another explanation or context for what happened around the time they were admitted to hospital or made subject to compulsory treatment?

Evidence to look for and test

  • What evidence is there on the clinical file of recently exhibited symptoms of mental illness? Remember: past diagnosis or treatment is not definitive.
  • If the symptoms are drug-induced, check whether the symptoms of mental illness have resolved after the drugs have left the person's body, or whether there is evidence of ongoing symptoms.
  • Has a second opinion been obtained or is there conflicting evidence as the nature of the person’s mental illness? Such evidence may indicate this criterion may not be met. Further investigation may be warranted.
  • Does the evidence demonstrate a significant (as opposed to a mild) disturbance of thought, mood, perception or memory?
  • Could any of the symptoms mentioned be attributed to factors rather than their mental illness, such as a person’s anti-social personality or religious or political beliefs or substance use? This may indicate the criterion may not be met.

Summary of cases relevant to section 5(a)

Not met where ‘no evidence of persisting mental illness’ at the time of the hearing

In the case of LJR [2014] VMHT 74 (1 December 2014) the tribunal accepted that, even though the person’s symptoms at the time of his admission to hospital amounted to a significant disturbance of thought and mood (which met the definition of mental illness under section 4(1) the Act), he had adhered to medication and that those symptoms had dissipated in the three weeks of his admission.

The tribunal decided that at the time of the hearing section 5(a) was not met and revoked his order. It found he ‘no longer exhibited symptoms characterised by a significant disturbance in thought, mood or perception and that there was no evidence of a persisting mental illness.’

This decision may be particularly relevant where your client experiences symptoms of drug induced psychosis and/or it is their first admission to hospital.

The ‘​possibility’ of a mental illness is not enough

The tribunal in OJZ [2016] VMHT 2(4 January 2016) explained that, where the person had a diagnosis of drug-induced psychosis, the 'possibility rather than the probability of an underlying mental health issue' was insufficient for it to be 'reasonably satisfied that OJZ has a mental illness'. The tribunal noted that 'the onus is on the treating team to satisfy the tribunal that the treatment criteria under section 5 are established to its reasonable satisfaction. Given the gravity of encroaching on OJZ’s rights through ongoing compulsory treatment, the tribunal was not reasonably satisfied that OJZ has mental illness'. It found that OJZ’s 'use of methamphetamine was on the balance of probabilities the cause of her recent admissions to hospital and, under section 4(2)(l), this cannot be taken to be indicative of mental illness'.

Other cases

Visit Austlii for past Mental Health Review Board decisions.

More information

Section 5(b): the person needs immediate treatment to prevent serious consequences

This criterion under the Mental Health Act 2014 (Vic) requires the Mental Health Tribunal (or psychiatrist) to carefully consider both the alleged consequences if the person does not receive treatment immediately, and the impact of the proposed treatment(s) on addressing those consequences.

It requires the decision-maker to be satisfied that because of the person’s mental illness:

  • the person needs immediate treatment (that meets the definition of treatment at section 6) to prevent serious consequence(s), and
  • the consequence(s) must be serious, either
    • serious deterioration of the person’s physical or mental health, or
    • serious harm to the person, or another person.

Application of criterion

There may be several consequences alleged and several treatments proposed to be given to the person in order to prevent them occurring. Not all consequences and treatments however will be relevant to this criterion – those which do not meet the high threshold cannot be used as the basis for justifying this criterion met.

The two main parts of the analysis for this criterion are:

  1. The tribunal should start by determining the type, source, severity and imminence of the consequence(s) alleged. Only those which survive this analysis can be considered ‘relevant consequences’
  2. It should then identify the proposed treatment(s) (or any other treatment put forward by the person) and determine which of those treatment(s) meet the definition of treatment and will actually address the relevant consequences.

The consequences of treatment not being provided

  • A deterioration in physical or mental health – requires the tribunal to be satisfied that, without treatment, there is likely to be a worsening of the person’s health or symptoms. This requires a medical assessment to ascertain whether their physical health condition or mental health symptom(s) have, or are likely to, worsen without treatment (see for example ZIF [2015] VMHT 132 (12 August 2015)).
  • Harm – requires evidence of some likely ‘hurt, injury or damage’ whether temporary or permanent and can include physical, emotional or psychological harm (see WCH v MHT [2016] VCAT 199 (23 February 2016)). Certain consequences will not amount to harm such as inconvenience, embarrassment or nuisance. Likewise, a risk to a person’s finances or reputation is unlikely to meet the definition of actual ‘harm’ (or the threshold of ‘serious’), unless it is so severe it compromises a person’s health or safety and to a serious degree. See for example ZIF [2015] VMHT 132 (12 August 2015)).

Preventing ‘serious harm to the person or another person’ is also a harder test to satisfy than the older test of ‘protection of members of the public’ or protecting the person’s ‘safety’, as required by the previous 1986 Act.

To be a relevant consequence, it must have been caused by, or projected to arise from, the person’s mental illness. Where the cause is not mental illness, it cannot be ‘treated’ under a treatment order.

Consequences arising from other sources, such as socioeconomic circumstances, family violence, inherent personality factors or substance abuse (unless the substance use creates or exacerbates mental illness which then creates a consequence), will not be relevant and cannot be a basis for section 5(b). For example:

  • Substance use – s. 4(3) permits the temporary or permanent physiological, psychological or biochemcial effects of drug use to be considered as mental illness. However, it does not extend to the treatment of drug use itself (ie the cause of the effects). See s. 4(2)(l)). Providing treatment for substance use can be ancillary, but not justify the treatment order alone.
  • Other health conditions not impacted by mental illness.

The Act introduces the qualifier ‘serious’ to this criterion, suggesting evidence of a greater degree of deterioration will be needed before a treatment order will be justified. The qualifier appears to be intended to limit the restrictions on a person’s rights to autonomy and freedom from treatment without consent in only the most compelling of circumstances. This is mirrored in the mental health principles set out in section 11.

In the VCAT decision of WCH v Mental Health Tribunal (Human Rights) (Amended) [2016] VCAT 199 (23 February 2016), when determining whether deterioration or harm associated with the mental illness was serious, VCAT adopted its ordinary meaning, namely that 'serious' means 'important, demanding of consideration, giving cause for apprehension or critical' [87].

In relation to deterioration, if the deterioration in a person's mental health is not distressing and does not affect the person's functioning in any way it is unlikely to meet the threshold of 'serious' as found in the case of WRH [2015] VMHT 27 (16 February 2015).

Similarly, as the tribunal in JMN [2015] VMHT 29 (9 February 2015) confirmed, ‘serious’ means 'not slight or negligible’ and, as with ‘harm’ must be assessed ‘in the context of an individual patient’s life and circumstances’.

The serious deterioration or serious harm to the person or another person must be sufficiently imminent as to require immediate treatment to prevent it.

The tribunal should consider the remoteness or likelihood of the harm or deterioration eventuating and how soon it would occur or reach a serious level, if immediate treatment were not provided. If consequences are more likely to arise gradually over time, or the circumstances have changed since allegations of previous incidents of harm, treatment is less likely to be found to be immediately necessary.

If the consequence is too remote, then treatment won’t be ‘immediately needed’.

For example, recent past history indicated no deterioration in a person’s mental state for a period of around two years without treatment (as in the case of USW [2014] VMHT 80 (9 December 2014)) rendered the consequence effectively too remote.

Likewise, as XAN [2014] VMHT 12 (24 July 2014) illustrates, where the only evidence of ‘serious harm’ is a one-off incident in the past (a car chase two years prior) and circumstances have changed (he was no longer driving) then it is too remote to justify compulsory treatment.

Identify the proposed treatment(s)

The tribunal must clearly identify what the proposed treatment is and be satisfied that the proposed treatment meets the definition of treatment.

If the mental health service has not identified the precise treatment, the tribunal will need to make these inquiries. Without this, it will be impossible to assess whether it is immediately necessary to prevent the relevant consequence(s).

The definition of treatment for mental illness (s. 6) is where ‘things are done to the person in the course of exercise of professional skills:

  1. to remedy the mental illness, or
  2. to alleviate the symptoms AND reduce the ill effects of the mental illness.’

This is a narrower definition than under the previous Act. It is not enough that the intervention or medication merely reduces the ill effects of the illness. Unless it either remedies the illness or alleviates its symptoms, then it does not meet the definition and cannot be considered as part of the section 5 analysis.

Other interventions may be important ancillaries to treatment (such as diagnosis or assessment and monitoring and observation) however, these arguably do not meet the definition of treatment at section 6. Drug and alcohol counselling, whilst it may be desirable, would be regarded the same way.

The case of EDY [2015] VMHT 37 (12 March 2015) highlights that containment or detention alone, in the absence of medication, will not generally constitute ‘treatment’. It is not sufficient for the treatment to prevent a risk – it must also be shown to ‘have a positive effect’ on a person’s symptoms. The tribunal found that:

  • ‘immediate treatment to prevent imputes a treatability criterion for any compulsory treatment’, and
  • unless a person’s condition is treatable, in the case of inpatient orders, ‘the person’s confinement becomes preventative detention, which is not within the objectives and purpose of the Act’.

This is relevant in cases where a person is detained in hospital to prevent access to illicit drugs. Even where there is evidence that drug use may cause deterioration in a person’s mental health, their containment, of itself, cannot be regarded as ‘treatment’. Again, whilst the Act may permit compulsory treatment for the effects of drug use in some case (see s. 4(3)), its purpose is not to authorise compulsory treatment for the cause of those effects, namely treatment for drug abuse (see s. 4(2)(l)).

If the proposed treatment will not be effective in addressing the consequence it is proposed to manage, then it will not ‘prevent’ the consequence and so cannot be necessary.

Sometimes a person’s diagnosed illness can be resistant to treatment. Without cogent evidence that the immediate treatment would in fact prevent the serious deterioration or serious harm, the criterion will not be satisfied. Similarly, if the treatment will not prevent a worsening of a person’s mental illness, it will not be needed.  This is relevant to cases of dementia which can be considered ‘mental illness’ but is not amenable to treatment.

The tribunal in BQD [2015] VMHT 53 (1 April 2015) confirmed that ‘the need for treatment must be compelling and specific rather than just a general need for ongoing treatment’ and if the treatment team cannot sufficiently ‘articulate the need for immediate treatment in the context of prevention’ then section 5(b) will not be satisfied.

It will not be enough that treatment is merely clinically indicated or recommended. If a person identifies an alternative medication, say, that would equally prevent the serious consequences, then, consistent with the requirement to consider the person’s views and preferences at section 5(2), the tribunal should properly find the ‘immediate treatment’ is the person’s preferred treatment.

Likewise, other interventions or orders (eg administration orders, guardianship orders or intervention orders) may prevent the risk, which may obviate the need for proposed treatment if the person regards them as less restrictive.

If treatment causes more harm than good it is unlikely to be considered ‘needed’. Consideration should also be given to the likely detrimental effects of the treatment or the way it is provided (eg side effects of medication or risk of institutionalisation). An argument could be made that, on balance, the proposed treatment cannot be properly described as ‘needed’.

This criterion would then be met but on a different basis to the one alleged by the treating team, and would be least restrictive and consistent with the person’s dignity and respect. As a result of this re-characterisation of the basis for this criterion, it is therefore highly likely that section 5(d) will not be met as a result of the person being able to get that (alternative) treatment voluntarily (see Section 5(d) – less restrictive treatment for more information).

In FFY [2015] VMHT 33 (5 February 2015) FFY preferred oral medication. The tribunal found it would be equally effective as depot (injectable) medication, proposed by the treating team, in preventing the serious consequences. Therefore, it found section 5(b) was met on that basis, but that ultimately section 5(d) was not met as he could get oral medication voluntarily.

Discussion points for engaging your client

  • What do they think about each of the consequences alleged? Are they incorrect or exaggerated and if so, can your client correct them or provide another explanation for what happened?
  • How do they feel about the proposed treatment? Has it had or will it have the beneficial effect the treating team suggest? Are there any side effects?
  • Is there another treatment or medication your client may prefer? Why do they prefer it? Will it address or prevent the relevant serious consequences and if so, how?
  • Can the consequences be managed in other, less restrictive ways (for example, through counselling)?
  • What will happen if they do not get the proposed treatment? Have they experienced this in the past?

Look for and test the evidence

  • What evidence is there of actual deterioration in the person’s mental or physical health? How severe was it and over what period of time did the relapse occur?
  • What evidence is there of actual harm or injury to the person or another person? Who reported it? Was it serious or relatively minor? When did the incidents occur? Was it a one-off?
  • What is the proposed treatment the psychiatrists have identified? Is there evidence on the file that demonstrates the treatments either actually remedy the illness or alleviate the symptoms (and therefore meet the criteria for treatment under section 6)?
  • How effective is the treatment currently? What evidence is there that the proposed treatment or interventions actually prevent the serious consequences from occurring?
  • Can the treatment be provided at a later stage – are there are any safeguards that could identify and prevent the escalation of risk before it becomes serious? What are the expected time frames?
  • Do the clinical file or other third parties support what your client is saying?

Summary of cases relevant to section 5(b)

In the case of WCH v Mental Health Tribunal (Human Rights) (Amended) [2016] VCAT 199 (23 February 2016), the VCAT member found that:

‘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’. I accept and apply those definitions. [65]

VCAT considered it unlikely that the person would experience a ‘serious’ deterioration in their mental health without opportunities for that to be detected and appropriate support and treatment offered.

Taking into account the s. 11 principles, and applying s. 5(b) in a manner that was consistent with the charter, VCAT was not satisfied that without treatment there would be a serious deterioration in their mental health, or a risk of serious harm to themself or others.

The tribunal in JMN [2015] VMHT 29 (9 February 2015) held that harm is defined as, amongst other things, hurt, injury or damage. Importantly, what constitutes both seriousness and harm needs to be assessed in the context of an individual patient’s life and circumstances.’

In IDF [2014] VMHT 18 (14 August 2014) despite the psychiatrist's concern about their refusal to undergo certain investigations and treatment for his physical health, the tribunal found ‘no evidence to suggest IDF’s mental illness has adversely impacted on his decisions in relation to his physical health care’ given he had ‘been living independently for the last 30 years [and] ... appeared to be physically fit for his age’.

The tribunal found that considering all the evidence ‘and having regard to IDF’s stated wishes, rights, dignity and autonomy, [it] was not satisfied that IDF needs immediate treatment to prevent serious deterioration in his mental or physical health’.

Similarly, in XNU [2014] VMHT 61 (10 November 2014) whilst the tribunal accepted XNU needed immediate treatment to prevent deterioration in her mental health, a majority found, in the current circumstances, if she eventually relapsed without treatment it was likely to be gradual and picked up in any event by her fortnightly appointments with her GP, and therefore could not be regarded as ‘serious’.

The legal member, in a dissenting opinion in WRH [2015] VMHT 27 (16 February 2015), found that the person’s beliefs about telepathy were not distressing to her and ‘nor was there evidence that her mental illness had affected her functionality in any way’, therefore the deterioration in WRH’s mental state did not meet the threshold ‘serious’.

In the case of WCH v Mental Health Tribunal (Human Rights) (Amended) [2016] VCAT 199 (23 February 2016), VCAT found that, whilst it accepted that with any reduction and/or cessation of medication there was a risk that the person would become unwell again it found that the evidence did not support a finding that the clear risk of deterioration could be described as ‘serious’. The VCAT found that, in relation to concerns expressed by the treating team about WCH’s behaviour some years prior, it ‘[could not] with confidence find that it is more probable than not that there was then a deterioration associated with the mental illness [and] [in any event, the consequences for WCH could not be described as important, demanding of consideration, giving cause for apprehension or critical’ [87].

The case of USW [2014] VMHT 80 (9 December 2014) is an example of the tribunal finding immediate treatment was not needed to prevent serious deterioration in the person’s mental health. The fact there had been no concerns with USW’s deterioration in the two years prior when he had been without antipsychotic medication suggested treatment was not needed immediately.

In the case of XAN [2014] VMHT 12 (24 July 2014) the tribunal noted section 5(b) could not be justified on basis of serious harm where the only reference was to a car chase two years prior as XAN was not currently driving.

In the case of EDY [2015] VMHT 37 (12 March 2015) the person, EDY, was detained in hospital yet not receiving any medication. The tribunal found that though the containment ‘may have been reducing the ill effects of EDY’s mental illness’ or protected her from poor decision-making, it did not alleviate the symptoms of her mental illness as it did not have ‘any positive effect in addressing ... the delusions from which she suffers’.

The tribunal also commented that ‘immediate treatment to prevent imputes a treatability criterion for any compulsory treatment’, and that, unless a person’s condition is treatable, in the case of inpatient orders, ‘the person’s confinement becomes preventative detention, which is not within the objectives and purpose of the Act’.

The tribunal in BQD [2015] VMHT 53 (1 April 2015) found that ‘the need for treatment must be compelling and specific rather than just a general need for ongoing treatment’. In this case, the treatment team could not sufficiently ‘articulate the need for immediate treatment in the context of prevention’ and the criterion was not met and the order revoked.

In FFY [2015] VMHT 33 (5 February 2015), although the treating team preferred depot (injectable) medication, the tribunal was satisfied that the person was likely to be able to get other alternative treatment (oral medication, which FFY preferred) which would prevent the serious consequences in section 5(b) from occurring. The tribunal then found that a less restrictive option to compulsory treatment was reasonably available and section 5(d) was not met.

Other cases

See also past decisions from the Mental Health Review Board:

More information

Read more about the other treatment criteria:

Section 5(c): immediate treatment will be provided if the person is subject to a compulsory treatment order

The treatment that will be provided under section 5(c) of the Mental Health Act 2014 (Vic) must be:

  • the same treatment identified under section 5(b) as being immediately necessary to prevent a relevant, serious consequence, and
  • actually provided as soon as the order is made (as opposed to being ‘theoretically’ available).

If there is no actual treatment being provided, or proposed to be offered immediately (compared with, say, monitoring or containment alone) then arguably this criterion will not be met.

For example, where a person on a community (temporary) treatment order is receiving medication from their GP and the only treatment being provided by the mental health service is 'monitoring', then it is arguable that no treatment will be provided under the order. Likewise, if the service does not have the resources and expertise to deliver the type of treatment required, the treatment would not be 'provided' under the order.

Similarly, the case of NLF [2014] VMHT 35 (8 September 2014) illustrates that where the evidence is unclear as to whether an order would ensure return to hospital and treatment of a person who was absent without leave from an inpatient unit, then section 5(c) will not be met.

Discussion point for engaging your client

  • Have they already, or will they be likely to get the necessary treatment which is proposed in the near future? If not, why not?

Look for and test the evidence

  • Identify the specific treatment(s) which have been determined to be immediately necessary under section 5(b).
  • Will each proposed treatment actually be provided to the person on an order?

Summary of cases relevant to section 5(c)

Unclear if person who was AWOL would be returned and treated due to the order

In NLF [2014] VMHT 35 (8 September 2014) the Mental Health Tribunal revoked the treatment order of a person who was absent from the inpatient unit without leave at the time of her hearing.

It was not satisfied NLF would be able to continue to get treatment if an order was made, as it was unclear whether the order facilitated police on a previous occasion apprehending her and returning her to the ward, or whether it was her ‘lifestyle and behaviour’ including itinerancy and drug use that drew police attention.

See also the case of EDY [2015] VMHT 37 (12 March 2015).

More information

Read more about the other treatment criteria:

Section 5(d): no less restrictive means are reasonably available to receive immediate treatment

The Mental Health Tribunal can only be satisfied section 5(d) of the Mental Health Act 2014 (Vic) is met if it finds there is, ‘no other reasonable alternative to compulsory treatment available in order to prevent the occurrences of the serious deterioration and serious harm referred to in section 5(b)’ (see VLU [2014] VMHT 37 (16 September 2014)).

The tribunal in that case stressed that this requires ‘the level of restriction to be as little as possible and carefully tailored so that the restriction is no more than necessary to achieve the objective’.

One clear intention of the Act is that compulsory treatment is used only as a last resort. Its use and duration should be minimised, voluntary treatment preferred and a person supported to make or participate in decisions about their own treatment.

These are reflected in the objectives of the Act and the mental health principles, in particular at sections 10(b) and (d) and 11(1)(a), (c) and (e). See About the Mental Health Act 2014 and its principles.

The tribunal, as the primary decision-maker in relation to treatment orders, should enquire about any alternative measures that the person regards as less intrusive of their freedom of decision-making than a compulsory order.

What is ‘less restrictive means’?

Voluntary treatment is necessarily less restrictive than compulsory treatment, but determining precisely what constitutes ‘least restrictive means’ will depend upon the individual and their own views and preferences about treatment and their own unique recovery goals. It may include other support, supervision, monitoring, follow up with a private psychiatrist, doctor or family member.

The tribunal should ask the person:

  • Would you engage in treatment voluntarily and, if so, how would you do so?
  • What are the outcomes you hope to achieve, consistent with application of the mental health principles of recovery and self-determination (s. 11(1)(c) and (d))?

A number of factors will be relevant to consider.

In the case of FFY [2015] VMHT 33 (5 February 2015), the person had consistently held a strong preference for oral medication rather than the depot (injectable) medication preferred by their treating psychiatrist.

The tribunal found that, given FFY’s strong views about treatment and good engagement with services, consistent with section 11(d), he could get the immediate treatment he required as a voluntary patient and so revoked the order.

Where temporary supervision of medication through the mobile support team, or other mechanism, is available upon discharge from hospital, then this can reassure the tribunal that treatment can be obtained voluntarily, despite past non-compliance. See XFH [2015] VMHT 25 (5 February 2015).

Where a person has demonstrated good engagement with services and compliance with treatment then the tribunal is more likely to give them the opportunity to manage his mental health voluntarily. See LEH [2015] VMHT 35 (2 March 2015).

When a person has a strong preference to be treated by someone other than their treating team (such as a doctor or a private psychiatrist) and their relationship with the current treating team is counter-therapeutic, this criterion will not be met. See BYW [2015] VMHT 1 (9 January 2015).

This is also consistent with the principles of best therapeutic outcomes, recovery and full participation in community life (see s. 11(b)).

Capacity to consent to treatment and ‘insight’ are not necessary

If a person agrees to or doesn’t resist treatment (even if reluctantly or for purely pragmatic reasons), and even if they lack capacity or insight to make an informed decision, legal compulsion may not be required to ensure treatment.

Arguably, the person’s acquiescence to or compliance with treatment need only be as reliable or durable as is necessary for compulsory treatment to be received in the short-term.

In the case of FFY [2015] VMHT 33 (5 February 2015) the tribunal found that, despite his ‘very limited understanding of his mental illness, symptoms and the function of medication in treating his condition’ and a ‘reported history of non-adherence to treatment’, he could get treatment voluntarily given his high level of engagement with community supports and nearly four years without hospitalisation.

Nonetheless, presenting evidence of an informed understanding of illness and the need for treatment can be very persuasive when you are arguing that a compulsory order is not required because it provides greater reassurance that the person will voluntarily accept the treatment.

Voluntary treatment in these circumstances clearly furthers the mental health principles in promoting the person’s dignity and autonomy (see ss. 11(1)(a), (c) and (e)).

The case of NNV [2014] VMHT 27 (16 September 2014) also highlights the importance of taking into account the person’s current circumstances and even recent improvements in their mental health in making an assessment of their level of understanding of their illness and acceptance of treatment.

‘Reasonably’ available

The means and services for providing treatment do not necessarily have to be proven to be immediately available. The qualification of ‘reasonable’ availability suggests that, so long as the means or services are theoretically available, then this should be sufficient evidence that the criterion is not met.

Whilst some tribunals have taken a stricter view of the availability of treatment under this criterion, others have been prepared to accept the theoretical availability of temporary intensive support such as a mobile support team upon a person’s discharge from hospital. (See XFH [2015] VMHT 25 (5 February 2015) .

Past history of a period of successful voluntary treatment can also be persuasive.

Past non-compliance does not necessarily mean less restrictive (or voluntary) treatment is not reasonably available. It should be viewed in light of the person’s current circumstances and the dignity of risk (s. 11(1)(d)).

Allegations of non-compliance must be corroborated by evidence. The tribunal in HJA [2014] VMHT 59 (27 October 2014) was not prepared to accept uncorroborated assertions from the service about a history of non-compliance.

Discussion points for engaging your client

  • What is their understanding of their diagnosis and the effect of treatment?
  • Do they agree with or accept treatment and why? Have they had voluntary treatment in the past?
  • What are their preferences and wishes regarding treatment, including what is important to them, to help identify any ‘less restrictive means’ or types of treatment?
  • Do they have other family, support people or health professionals who could support them in accessing voluntary treatment or implementing other less restrictive alternatives?
  • What do they say about any allegations of non-compliance? How recently was it? Were there reasons for non-compliance (such as debilitating side effects)? Can the present situation be distinguished?
  • Have they been engaging with treatment and a treating team recently?
  • How would a person remain well or avoid relapse or hospitalisation or avoid incidents of harm?

Look for and test the evidence

  • What does the file say about the person’s current acceptance of and compliance and engagement with treatment and their treating team?
  • What is the evidence of past non-compliance? Who made the allegation? How recent was it?
  • Is there evidence that the person’s views and preferences for treatment have been considered by the treating team? What evidence is there that alternative treatments would not prevent the serious consequences established at section 5(b)?
  • Does the clinical file support what your client is saying?

Summary of cases relevant to section 5(d)

In the case of FFY [2015] VMHT 33 (5 February 2015), the person had consistently held a strong preference for oral medication rather than the depot (injectable) medication preferred by their treating psychiatrist.

While the tribunal accepted that ‘any decision to change to oral medication would involve a degree of risk’, it found that, given FFY’s strong views about treatment and good engagement with services, consistent with section 11(d), he could get the immediate treatment he required as a voluntary patient, and so it revoked the order.

In the case of XFH [2015] VMHT 25 (5 February 2015), despite concerns about past compliance with treatment, the tribunal accepted that XFH could get treatment as a voluntary patient, including with temporary supervision of medication by the Mobile Support Team once discharged from hospital (to ensure compliance). It found there was a least restrictive option that was reasonably available and revoked the order. The tribunal also noted the importance of the section 11(d) principle in coming to its decision.

In the case of HJA [2014] VMHT 59 (27 October 2014) the tribunal accepted that HJA had complied with treatment and would continue do so and therefore revoked his treatment order. Notably, the tribunal was unwilling to accept uncorroborated assertions from the service that HJA had a history of ceasing to take prescribed medication.

In LEH [2015] VMHT 35 (2 March 2015) although the tribunal considered that revoking the treatment order involved a risk of serious deterioration in his mental health and serious harm to himself and another, that ‘level of risk was being well managed by LEH and the treating team’.

This was ‘such a degree of risk as contemplated in section 11(d)’ and that, despite past non-compliance, given his recent compliance with treatment he should have the opportunity to manage his illness as a voluntary patient.

The case of BYW [2015] VMHT 1 (9 January 2015) illustrates that when a person has a strong preference to be treated by someone other than their treating team (such as a doctor or a private psychiatrist) and their relationship with the current treating team is counter-therapeutic, this criterion will not be met.

This is also consistent with the principles of best therapeutic outcomes, recovery and full participation in community life (see s. 11(b)).

In the case of NNV [2014] VMHT 27 (16 September 2014) NNV agreed to stay voluntarily in hospital for treatment and effectively had good insight.

The tribunal highlighted the significant improvement that NNV had made in the days before the hearing and that, despite her being ‘at greater risk’ without treatment, there was insufficient evidence to conclude there was no less restrictive means reasonably available to enable NNV to receive the immediate treatment voluntarily.

More information

Read more about the other treatment criteria: