Victoria Legal Aid

VCAT decision gives more clarity to criteria for compulsory treatment


William (not his real name), aged 47, was first diagnosed with schizophrenia in 1993. His last hospital admission for treatment was in 1999. For the past 16 years he had been subject to successive community treatment orders, the most recent order having been made by the Mental Health Tribunal (MHT) on 7 August 2015. William sought a review of that decision by Victorian Civil and Administrative Tribunal (the Tribunal).

The issues

William disputed the diagnosis of chronic schizophrenia. He accepted that he had, on occasions, suffered from depression and was willing to continue treatment for this condition, as and when required.

William’s treatment under the community treatment order (CTO) included depot anti-psychotic medication which he wished to reduce and subsequently cease altogether. William wanted to undertake this process voluntarily and was therefore seeking that the CTO be set aside.

The material before the Tribunal indicated that William consistently attended appointments and was engaged with his local mental health service. In times of stress, he had sought additional support. There was no evidence of any conflict with the service, nor of any failure to comply with treatment orders in the past.

The law

The Tribunal considered each of the criteria for treatment contained in s.5 of the Mental Health Act 2014 (Vic) (the Act).

It also considered s. 55(2) of the Act, which requires the Tribunal to have regard to a person’s views and preferences about treatment of their mental illness, and the reasons for those views and preferences, including any recovery outcomes that the person would like to achieve.

The Tribunal referred to the Mental Health Principles set out in s. 11 of the Act and, in particular, s.11(1)(d) which states that a person receiving mental health services should be allowed to make decisions about their treatment that involve a degree of risk.

The Tribunal also considered the application of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter) to the decision under review.


Standard of proof and the Charter

The Tribunal noted that neither party bore the onus of proving its case. Rather, it was the task of the Tribunal to stand in the shoes of the MHT and make what it considered to be the ‘correct and preferable’ decision, based on the evidence and proper interpretation of the Act.

The Tribunal accepted that given the compulsory nature of treatment under the Act, and the limits it places on a person’s liberty, it was appropriate to apply the standard of proof laid down in Briginshaw v Briginshaw (1938) 60 CLR 336. This standard requires a tribunal to actually be persuaded that a fact in issue exists. It needs to consider the seriousness of the matter and the gravity of the consequences that flow from a particular finding when determining whether the matters in issue have been proven to its reasonable satisfaction. The Tribunal noted that ‘this state of satisfaction is not likely to be reached based on uncertain proofs or evidence or where findings are reached by drawing indirect inferences’.

Whilst William argued that a number of rights under the Charter were engaged in this case, given its findings in relation to the treatment criteria, the Tribunal did not find it necessary to consider these separately. However, it noted that the Tribunal’s findings in relation to the s. 5 treatment criteria were consistent with William’s rights under the Charter.

Treatment criteria

The Tribunal found that William did not meet three of the four statutory criteria:

Section 5(a) – the person has mental illness

The Tribunal noted the definition of ‘mental illness’ and in particular s. 4(2) which says that a person is not considered to have a mental illness by reason of any one or more of a list of matters, which include a person’s religious beliefs (s. 4(2)(b)) and the fact that the person has previously been treated for mental illness (s. 4(2)(o)). On this basis, the Tribunal put aside William’s religious and spiritual beliefs.

The Tribunal accepted that whilst the past diagnosis of chronic schizophrenia was valid, there was no material before it to show that William currently (or recently) had a ‘significant’ disturbance of thought, perception, memory or mood. The Tribunal noted that the word ‘significant’ must be given weight, and in this context meant ‘important and of consequence’.

The Tribunal accepted the evidence of the independent expert, Dr Walton, that it was unusual for there to have been no symptoms or episodes of illness for such a long period of time, and the possibility that the previous illness had resolved. Accordingly, the Tribunal was not satisfied this criteria was met.

Section 5(b) – needs immediate treatment

The Tribunal accepted that with any reduction and/or cessation of medication there was a risk that William would become unwell again. However, the evidence did not support a finding that the clear risk of deterioration, or harm to William or others, could be described as ‘serious’.

The Tribunal noted that William had consistently sought help when matters had been troubling him in the past and that this pattern of seeking help and support was relevant to the likelihood of a serious deterioration. Given his involvement with his service for 16 years, and the support of his friends and family, the Tribunal considered it unlikely that William would experience a ‘serious’ deterioration in his 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, the Tribunal was not satisfied that without treatment there would be a serious deterioration in William’s mental health, or a risk of serious harm to William or others.

Section 5(d) – less restrictive means

The Tribunal noted William’s history of compliance and engagement with his service. It also noted his willingness to come off his medication in a gradual and managed way which would allow for ongoing monitoring of his condition. Dr Walton had described this course of action as ‘a reasonable therapeutic strategy’.

The Tribunal considered that allowing William to become a voluntary patient, with the plan to reduce and potentially cease the medication that he had been receiving for the past 16 years, was ‘consistent with his dignity as a person and principle 1(d)’. The proposed plan would allow him to make decisions about his own treatment and recovery. Further, it was consistent with William’s rights under the Charter and the Tribunal’s obligation in s. 55(2) to consider William’s views and preferences concerning treatment.

Having regard to William’s plan to voluntarily undertake a managed and supervised medication reduction under the care of his service, the Tribunal found that there was a less restrictive means of treatment available.

Read the decision

Read the decisionExternal Link on the Australasian Legal Information Institute website.

Note – Victoria Legal Aid acted on behalf of the applicant at the hearing.

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.

We help Victorians with their legal problems and represent those who need it most. Find legal answers, chat with us online, or call us. You can speak to us in English or ask for an interpreter. You can also find more legal information at

Reviewed 25 January 2022