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

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: