Victoria Legal Aid

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

Discussion points, practice tips, case summaries and key elements that must be satisfied to help understand this treatment criterion under the Mental Health Act 2014.

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 s. 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.

Under 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 s. 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?

S. 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)External Link 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

S. 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 s. 5(b). See also the definition of treatmentExternal Link at s. 6 of the ActExternal Link .

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 2External Link , XFI [2015] VMHT 187External Link , and LJR [2014] VMHT 74External Link .

For more information, see the Summary of cases relevant to s. 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)External Link 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 s. 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 s. 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.

In GCQ [2016] VMHT 30 (28 April 2016) the tribunal found that while GCQ has a history of substance use and suffered from stress and anxiety that had occasionally led to him being admitted to hospital, it was not satisfied that his symptoms were significant enough to meet the threshold for compulsory treatment under s. 5(a). There was limited evidence on the file of any psychotic symptoms. The judgment states:

The tribunal accepted that GCQ had various mental health issues, including anxiety, poor anger management and coping skills, substance abuse issues and possibly paranoid and/or antisocial personality traits. However, on the limited evidence before it the Tribunal was not satisfied that his mental health issues were of the requisite type or severity to constitute a mental illness as defined under section 4(1).

In XOG [2016] VMHT 40 (3 June 2016) the tribunal found that XOG’s presentation was related not to mental illness but to intellectual disability. No psychotic symptoms had recently been observed.

The ‘ possibility’ of a mental illness is not enough

The tribunal in OJZ [2016] VMHT 2(4 January 2016)External Link 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 s. 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 s. 4(2)(l), this cannot be taken to be indicative of mental illness'.

In XFI [2015] VMHT 187 (28 October 2015)External Link each hospital admission had followed an episode of drug or illicit substance use, with XFI often still intoxicated upon admission. The Report on Compulsory Treatment suggested that each time there had been a quick recovery once XFI was free of drugs and taking a low dose of antipsychotic medication. The clinical file revealed doubt about whether XFI had an underlying illness or had had a number of drug-induced psychoses. The treating team wished to keep XFI contained in SECU in order to observe her without drugs and make a clear diagnosis, even though XFI had already spent several months in SECU over the previous year. The tribunal stated:

The Tribunal understood that XFI’s treating clinicians believe that a further stay of six months in a SECU would assist them in making a diagnosis as to whether XFI suffers from an ongoing mental illness such as schizophrenia, and may possibly also assist in persuading XFI to give up drug use because of the harm it causes. However, the Act does not allow for a person to be made subject to a Treatment Order for those reasons. Under section 55 of the Act, the Tribunal can only make a Treatment Order if it is satisfied that the treatment criteria in section 5 of the Act apply to XFI.

The tribunal found XFI did not appear to have a significant disturbance of thought, mood memory or perception as per s. 5(a) and could not be found to have a mental illness simply because she used drugs per s. 4(l). The order was revoked.

Collateral information and family conflict

In XOG [2016] VMHT 40 (3 June 2016)External Link the treating team had relied heavily on collateral information from XOG’s mother. The tribunal cited s. 4(2)(n) that a person could not be found to have a mental illness simply because of family conflict.

In YLN [2016] VMHT 18 (7 March 2016)External Link the tribunal found that the collateral evidence gathered from YLN’s husband and daughter could not be corroborated. YLN had reported family violence but the treating team had preferred the evidence of family members who reported she was unreasonable and suspected her husband was unfaithful. The tribunal acknowledged that YLN’s marriage was an unhappy one but declined to make an order based only on collateral evidence:

[The tribunal] was not satisfied that a family history of jealous and delusional behaviour was sufficiently direct evidence that YLN had mental illness.

CALD clients and using interpreters to assess symptoms

In XIJ [2017] VMHT 58 (31 October 2017)External Link the tribunal found that XIJ’s admission was a result of a traumatic event coupled with cultural misunderstandings. XIJ had been dismissed from her employment without an explanation. When she became distressed, police were called, and she was forcibly removed from her place of employment and injected with sedatives before being taken to hospital. Key to this finding was the fact that XIJ was able to produce her GP’s contemporaneous notes that contradicted the evidence of the treating team and showed that she had displayed no psychotic symptoms when assessed in her own language.

In NTW [2016] VMHT 86 (3 November 2016)External Link the tribunal found that concerns about personal safety considered to be paranoid by the treating team were based on reasonable concerns that NTW had developed as a result being subjected to workplace bullying, racist abuse and having had her home broken into. The tribunal accepted NTW’s submission that spreading flour around a doorway to detect an intruder’s footprint was a cultural practice but did not consider it to be disturbed behaviour in any case. The tribunal observed that interpreters had not been used in NTW’s admission or early case management and once she had been seen by a psychiatrist with an interpreter she was varied to a community temporary treatment order.

Other cases

Visit Austlii for past Mental Health Review Board decisionsExternal Link .

More information

Disclaimer: The material in this print-out relates to the law as it applies in the state of Victoria. It is intended as a general guide only. Readers should not act on the basis of any material in this print-out without getting legal advice about their own particular situations. Victoria Legal Aid disclaims any liability howsoever caused to any person in respect of any action taken in reliance on the contents of the publication.

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Reviewed 02 June 2022

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