Close search

Search the handbook

  • 20 Medical and Mental Health
  • Mental Health
  • Treatment Orders for Patients Lacking the Capacity to Consent
handbook symbol Tasmanian Legal

Treatment Orders for Patients Lacking the Capacity to Consent

Treatment Orders

Section 40 of the Mental Health Act outlines the criteria to be met before a person may be subjected to a treatment order.  Treatment orders are made by the Mental Health Stream of the Tasmanian Civil and Administrative Tribunal when a person lacks the consent necessary to accept treatment voluntarily.  An order may be made where:

  • the person has a mental illness;
  • the danger a risk that without treatment the illness will, or is likely to, seriously harm the person or others;
  • the treatment (detention) of the patient is appropriate and will be effective;
  • treatment cannot be given adequately except under such an order; and
  • the person does not have decision-making capacity.

The Tribunal must be satisfied that these criteria are met by the patient before an order can be made.

The person must have a mental illness

Section 25, which discusses the criteria to be satisfied for an order to assess the patient to be made, refers to a person who ‘appears’ to have a mental illness, whereas section 40 (the section which provides the criteria for making a treatment order, including one for detention) refers to a person who ‘has’ a mental illness. By using different terminology Parliament is obviously meaning to convey a differing level of satisfaction that a mental illness exists.

Section 40 requires the Tribunal to be satisfied that a mental illness in fact exists. A mental illness is defined in section 4. Section 4(1) states that a person is taken to have a mental illness “if he or she experiences, temporarily, repeatedly, or continually”:

  • serious impairment of thought (which may include delusions); or
  • serious impairment of mood, volition, perception, or cognition.

This broad definition is limited by section 4(2) of the Act, which clarifies that a diagnosis of mental illness may not be based solely on:

  • antisocial behaviour; or
  • intellectual or physical disability;
  • expression of a particular philosophy; or
  • intoxication (by reason of alcohol or drug).

The Tribunal must be satisfied that the person’s behaviour could be attributed not only to personality factors, but is caused by the existence of a mental illness.

There must be a risk the mental illness will harm seriously the person or others

The Tribunal must be satisfied that there is a risk of serious harm and that the risk arises as a consequence of the mental illness.  There is no explicit definition of “harm” in the Act so it is therefore necessary to look at the definition of harm in the Concise Oxford Dictionary and in everyday language. The dictionary definition includes “damage” or “hurt”. Thus, this criteria is extremely broad and could encompass such things as:

  • a significant risk of the deterioration of a marital and/or familial relationship; or
  • a significant risk of alienation from a community of which the person previously was a member, e.g. from a church community or a professional group.

If the Tribunal finds that there is a risk of such harm it must then answer the question “is the harm a consequence of the mental illness?” The harm need not be totally attributable to the mental illness so long as it is to some degree a consequence of it.

The treatment must be appropriate and effective

It is not sufficient that the patient’s behaviour has caused considerable and justifiable annoyance, anger, fear or physical discomfort.  The patient must either engage in conduct, or represent such a burden to care for, that the treatment or detention is likely to cause it to cease.  It must not, however, be excessively burdensome or upset the balance between the restriction of liberty and the preservation of individual rights.

The treatment must be adequate

Treatment is not confined to measures taken to effect a cure. Treatment includes methods designed to alleviate a patient’s condition and prevent it from becoming worse, including basic nursing care and attempts to improve living skills.

The Tribunal must be satisfied that the particular treatment proposed is available to the patient in the facility in which it is proposed to involuntarily detain them.

Decision-making capacity

Section 7 states that a person has the capacity to make a voluntary decision about his or her own assessment or treatment unless it is established, on the balance of probabilities, that the capacity is absent because of an impairment or disturbance, in the mind or brain, causing an inability to understand or retain information relevant to the decision, an inability to use or to weigh the information relevant to making an informed decision, or an inability to communicate the decision.

Voluntariness and consent is discussed later in this Chapter.


Section 62 outlines the rights of every involuntary patient.  As well as Schedule 1, which provides a list of mental health service delivery principles, these outline that the restrictions on the liberty of the patient and interference with the patient’s rights, dignity and self-respect must be kept to the minimum consistent with the need to protect the patient and others.

Page last updated 01/12/2021

Previous Section Types of Orders, & Custody and Escort Provisions
Next Section Orders for Admission to a Secure Mental Health Unit