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

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

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