TSC v Department for Health and Wellbeing - [2021] SASCA 93

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
TSC v DEPARTMENT FOR HEALTH AND WELLBEING
[2021] SASCA 93
Judgment of the Court of Appeal
(The Honourable Justice Doyle, the Honourable Justice Livesey and the Honourable Justice Bleby)
9 September 2021
HEALTH LAW - TREATMENT AND CARE OF MENTALLY ILL PERSONS - COMMUNITY TREATMENT ORDERS
Appeal from a decision of the South Australian Civil and Administrative Tribunal.
The applicant has a primary diagnosis of schizophrenia and a comorbid diagnosis of PTSD. He accepts the diagnosis of PTSD, but not the diagnosis of schizophrenia. The applicant has been subject to a number of community treatment orders since 2016.
Upon an application by the applicant’s treating doctor, the Tribunal made a level 2 community treatment order in respect of the applicant. In its review jurisdiction, the Tribunal affirmed the decision.
The primary issue on appeal was whether the applicant had impaired decision-making capacity relating to appropriate treatment of his mental illness, within the meaning of ss 16(1) and 5A(2) of the Mental Health Act 2009 (SA).
Held (by the Court), granting leave to appeal but dismissing the appeal:
1. The concepts of capacity to ‘understand’ information and capacity to ‘use’ information, as they appear in sub-ss 5A(2)(a)(i) and (iii), overlap. A conclusion that a person does not understand some piece of information relating to a decision about health care does not necessarily mean they are incapable of understanding or using it. However, the totality of the evidence may support that further conclusion.
2. The Tribunal did not err in the inferences it drew from the evidence. Its conclusion that the applicant had impaired decision-making capacity was not affected by error.
Mental Health Act 2009 (SA) Pts 4, 5; Divs 1, 2; ss 16(1). 5A(1), 5A(2), 5A(3); South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 70(4), 70(5), 71(1)(a)(ii), 71(2), 71(3a), 71(3b); Mental Capacity Act 2005 (UK) s 3(1); Mental Health Act 2014 (Vic) s 68(1); Charter of Human Rights and Responsibilities Act 2006 (Vic) s 32, referred to.
Re AKS [2016] SACAT 19; PBU & NJE v Mental Health Tribunal (2019) 56 VR 141; R v Cooper [2009] 1 WLR 1786; Starson v Swayze [2003] 1 SCR 722; GKK v Department of Health and Ageing [2018] SACAT 30; Lee v NSW Crime Commission (2013) 251 CLR 196; Furesh v Schor (2013) 45 WAR 546, considered.

TSC v DEPARTMENT FOR HEALTH AND WELLBEING
[2021] SASCA 93
Court of Appeal – Civil: Doyle, Livesey and Bleby JJA

THE COURT: Part 4 of the Mental Health Act 2009 (SA) provides for orders for the treatment of persons with mental illness, described as ‘community treatment orders’. Division 1 provides for level 1 community treatment orders, which may be made by a medical practitioner or an authorised medical professional. Division 2 provides for level 2 community treatment orders. These may be made by the South Australian Civil and Administrative Tribunal (‘the Tribunal’), under s 16 of the Act. Community treatment orders are distinguished from inpatient treatment orders, which are the subject of Part 5.
This appeal raises a question of construction of a statutory condition for the making of a level 2 community treatment order, being that in s 16(1)(c). This section requires the Tribunal to be satisfied, before making a community treatment order, that the person has impaired decision-making capacity relating to appropriate treatment of the person’s mental illness. The applicant complains that the Tribunal erred in its interpretation of the phrase ‘impaired decision-making capacity’. He also complains that the Tribunal erred in the inferences it drew from the evidence and that it was not open to the Tribunal to be satisfied that he had impaired decision-making capacity.
On 28 October 2020, the Tribunal made a level 2 community treatment order in respect of the applicant. On 17 February 2021, the Tribunal, constituted by two members including a Presidential member, granted the applicant leave to apply for internal review and affirmed the decision.
Sub-sections 71(1)(a)(ii) and 71(2) of the South Australian Civil and Administrative Tribunal Act 2013 (SA) make provision for an appeal from a decision of the Tribunal so constituted to this Court, by leave. The respondent did not oppose a grant of leave.
The legislative scheme
Section 16(1) of the Mental Health Act provides for the making of level 2 community treatment orders:
16—Level 2 community treatment orders
(1) If the Tribunal is satisfied that—
(a)a person has a mental illness; and
(b)because of the mental illness, the person requires treatment for the person's own protection from harm (whether physical or mental, and including harm involved in the continuation or deterioration of the person's condition) or for the protection of others from harm; and
(c)the person has impaired decision‑making capacity relating to appropriate treatment of the person's mental illness; and
(d)there is no less restrictive means than a community treatment order of ensuring appropriate treatment of the person's illness,
the Tribunal may make an order for the treatment of the person (a level 2 community treatment order).
With respect to the concept of ‘impaired decision‑making capacity’ in s 16(1)(c), s 5A(1) of the Act provides that a person is, in the absence of evidence or a law of the State to the contrary, to be presumed to have full decision‑making capacity in respect of decisions about their health care, residential and accommodation arrangements and personal affairs. Sub-sections 5A(2) and (3) then provide:
(2)For the purposes of this Act, a person will be taken to have impaired decision‑making capacity in respect of a particular decision if—
(a)     the person is not capable of—
(i)understanding any information that may be relevant to the decision (including information relating to the consequences of making a particular decision); or
(ii)     retaining such information; or
(iii)    using such information in the course of making the decision; or
(iv)    communicating his or her decision in any manner; or
(b)     in the case of a person who has given an advance care directive—the person has satisfied any requirement in the advance care directive that sets out when the person is to be considered to have impaired decision‑making capacity (however described) in respect of a decision of the relevant kind.
(3)     For the purposes of this Act—
(a)     a person will not be taken to be incapable of understanding information merely because the person is not able to understand matters of a technical or trivial nature; and
(b)     a person will not be taken to be incapable of retaining information merely because the person can only retain the information for a limited time; and
(c)     a person may fluctuate between having impaired decision‑making capacity and full decision‑making capacity; and
(d)     a person's decision‑making capacity will not be taken to be impaired merely because a decision made by the person results, or may result, in an adverse outcome for the person.
The applicant challenges the Tribunal’s application of the statutory concept ‘impaired decision-making capacity’ relating to the appropriate treatment of his mental illness. This challenge requires analysis of that concept and of the Tribunal’s interpretation and application of that concept in the case of the applicant.
Background
The applicant is 59 years old. He has a primary diagnosis of schizophrenia and a comorbid diagnosis of post-traumatic stress disorder (PTSD). He accepts the diagnosis of PTSD, but not the diagnosis of schizophrenia. The Tribunal accepted both diagnoses. While the applicant does not accept that he suffers from schizophrenia, he did not invite the Tribunal on review to find that the diagnosis was wrong.
The applicant has been subject to a number of community treatment orders since 2016. During periods when he has not been subject to a community treatment order he has, on a number of occasions, been admitted to hospital following non‑compliance with his prescribed psychiatric medication.
In August and September 2020, the applicant was subjected to an inpatient treatment order, by which he was admitted to hospital as an involuntary patient. This occurred after he had attended at the Bedford Park Medical Clinic, where he complained that staff were ‘raping him with their yellow eyes’, said that he was the Messiah with seven billion people to care for and requested the GP to ‘remove the microchip that was in his head’, which had been placed there by an ‘evil American Anaesthesiologist’. He was aggressive and hostile, and had to be transferred to hospital by police.
He was discharged from hospital on 9 September 2020. He was prescribed ‘aripiprazole 400mg IM 4 weekly’. Aripiprazole is an anti-psychotic medication. The prescription was for what is commonly described as a ‘depot’ injection every four weeks, a slow-release form of delivery of the medication that obviates the need to take daily oral doses.
The applicant did not attend for his depot injection on 15 September 2020 nor, in the event, on 13 October or 4 November. After the first of these non‑attendances, on 28 September 2020 his treating doctor, Dr Marwan Kassir, applied for a level 2 community treatment order concerning the applicant. The hearing was held by telephone on 27 October 2020. Dr Kassir was unable to attend, although the medical report prepared by him was before the Tribunal. A different doctor, a Dr Khan, attended in support of the application. By this stage, the applicant had missed two depot injection appointments.
On 28 October 2020, the Tribunal found that the evidence met the requirements of s 16 of the Act and made a community treatment order for 12 months, expiring on 27 October 2021.
The application for review
The applicant sought a review of the order. On the review, the Tribunal was required to examine the decision at first instance on the evidence before it on that first occasion, but could allow further evidence or material to be presented as it thought fit.[1] Its obligation was to reach the correct or preferable decision but, in doing so, to have regard to and give appropriate weight to the decision of the Tribunal at first instance.[2]
[1] South Australian Civil and Administrative Tribunal Act 2013 (SA) s 70(4).
[2] South Australian Civil and Administrative Tribunal Act 2013 (SA) s 70(5).
One of the applicant’s complaints on the review was that Dr Khan, who gave evidence at first instance, had not seen the applicant. Further, the doctors who had seen him on his hospital admission, Drs Tai and Nelson, had not been available to give evidence. This was also the case with Dr Kassir, who had made the application and provided the report.
Against that background, the Tribunal on review determined to exercise its discretion to admit further evidence, having regard to the criteria for taking such a course explained by Parker J in Re AKS.[3] It accepted a written report and heard oral evidence from Dr Nazila Tai, Consultant Psychiatrist, and received an email from a social worker at the Noarlunga Specialist Community Mental Health Service. This email concerned the applicant’s attendance for appointments since November 2020. The Tribunal also accepted the applicant’s tender of a medical report by Dr Brian Ferry, Consultant Psychiatrist, dated 16 May 2016 and heard oral evidence from the applicant.
[3] [2016] SACAT 19 at [26]-[28].
The Tribunal was satisfied that the applicant met the four criteria set out in s 16(1) of the Act. With respect to s 16(1)(a), whether the person has a mental illness, it found that the applicant suffered from the primary diagnosis of schizophrenia with a comorbid diagnosis of PTSD, which may or may not be accompanied by episodic brief reactive psychosis precipitated by external stressors.
With respect to s 16(1)(b), being whether the applicant required treatment for his own protection from harm or for the protection of others, the Tribunal found that without treatment, the applicant’s condition was likely to deteriorate. It also found that there would be a risk to others if he did not receive treatment for his schizophrenia.
With respect to s 16(1)(c), the Tribunal found that the applicant lacked decision-making capacity relating to appropriate treatment of his mental illness. This finding is challenged on the appeal.
With respect to s 16(1)(d), the Tribunal found that there was not a less restrictive means than a community treatment order to ensure appropriate treatment of the applicant’s mental illness. The applicant’s preference was to take aripiprazole orally. However, he had a history of non-compliance with treatment regimes and the Tribunal found that that long-term pattern of non-compliance supported the conclusion that he was unlikely to be compliant without a community treatment order.
The challenge to the Tribunal’s conclusions
The applicant’s complaint is not directed to the Tribunal’s initial characterisation of the test in s 16(1)(c). Rather, he submits that the Tribunal misapplied the test when it came to considering the facts. This complaint can be considered together with the other complaints, that the Tribunal drew inferences that were not available and that the Tribunal’s conclusion was not open on the evidence.
The test for impaired decision-making capacity
Section 5A of the Mental Health Act, set out above, provides both a definition and descriptive limits of the concept of impaired decision-making capacity as that concept is used in s 16(1)(c).
The Tribunal’s statement of the test was orthodox. In explaining its understanding of the concept of ‘capacity’ in this legislative context, it drew on the decision of PBU & NJE v Mental Health Tribunal (‘PBU’),[4] which explored the concept in the similar, but not identical, legislative context of the Mental Health Act 2014 (Vic). To this end, the Tribunal said:[5]
We accept that a person does not have to fully understand all of the precise details of the mental illness and the treatment but the person must be able to understand information relevant to the decision; the person must be able to retain that information at least for a sufficient period as to be able to use it to make a decision; and then the person must be able to communicate that decision.
We accept that a person may still have decision making capacity, even if they make a decision which carries an adverse outcome for them or which others consider illogical or irrational, or with which others disagree and in this regard, the MHA does not impose a test requiring an outcome which is in the best interests of the person, or which is even reasonable.
We accept that variation in human behaviour is normal and what is regarded by one person as normal may well be regarded by another as abnormal and therefore, in making the assessment required by the MHA [Mental Health Act], the Tribunal should try to avoid making an assessment as to whether or not a person meets this criteria based on their behaviour, but should strive to make the assessment based on whether or not the person has the capacity to make the decision in the manner outlined in paragraph 47 above.
[4] (2019) 56 VR 141.
[5] Order of the Tribunal (Internal Review of a Level 2 Community Treatment Order) 2020/SIR000302 at [47]-[49].
PBU concerned, in part, the interpretation of s 68(1) of the Mental Health Act 2014 (Vic). That section provides, relevantly:
68 Capacity to give informed consent under this Act
(1) A person has the capacity to give informed consent under this Act if the person—
(a)understands the information he or she is given that is relevant to the decision; and
(b)is able to remember the information that is relevant to the decision; and
(c)is able to use or weigh information that is relevant to the decision; and
(d)is able to communicate the decision he or she makes by speech, gestures or any other means.
The wording of operative parts of the definition are different from those in s 5A of the South Australian Act. Most notably, where the South Australian provision requires, for a person to have impaired decision-making capacity in respect of a particular decision, that they not be capable of understanding the relevant information, the Victorian provision employs a positive framework, such that the person has capacity to give informed consent if they understand the relevant information. The balance of the Victorian provision, while still expressed in positive terms, refers to the person being able to remember and use or weigh the information, and communicate the decision.
The South Australian provision therefore focuses more expressly on the capacity to understand the information, although both provisions take a similar approach when it comes to the ability to retain or use the information, and to communicate a decision.
In PBU, Bell J undertook a careful examination of the Victorian provisions against the background of the common law and the United Kingdom jurisprudence in respect of s 3(1) of the Mental Capacity Act 2005 (UK), on which s 68(1) of the Victorian Act was largely based. His Honour identified that the test for capacity under both sections employed what is understood in the existing law and literature as the ‘functional approach’, which asks ‘whether, at the time the decision had to be made, the person could understand its nature and effects’.[6]
[6] PBU & NJE v Mental Health Tribunal (2019) 56 VR 141 at [154], citing R v Cooper [2009] 1 WLR 1786 at 1790 [13] (Baroness Hale, Lords Hope, Rodger, Brown and Mance agreeing).
Justice Bell then teased out the difference between s 68(1)(a) of the Victorian Act, which simply used the word, ‘understands’, against the language of s 3(1) of the Mental Capacity Act 2005 (UK) and, indeed, the balance of s 68(1) of the Victorian Act:[7]
Under the Mental Capacity Act, the test in s 3(1)(a) is whether the person ‘is unable – to understand the information relevant to the decision’. Being capable of understanding the information relevant to a decision is different to actually understanding this information. Decisions under s 3(1)(a) of the Mental Capacity Act repeatedly stress the ‘unable’ aspect. The question under s 3(1)(a) of the Mental Capacity Act is not whether the patient has understood the information, which a capacitous individual may choose to do or not do, but whether the person is capable of doing so.
By contrast, under the Mental Health Act, the test in s 68(1)(a) is whether the person ‘understands the information he or she is given that is relevant to the decision’. The ordinary and natural meaning of the word ‘understand’ is ‘perceive the meaning of’, ‘grasp the idea of’ or ‘comprehend’. In that provision, I think the level of understanding intended is only a general kind of understanding that relates to the nature, purpose and effect of the treatment …
Differently to paras (b), (c) and (d), the domain of the test in para (a) is expressed in terms of the person’s actual understanding of the information given as relevant to the decision, not in terms of the person’s ability in that regard. It is not clear why this was made to be so. The extrinsic materials do not assist. The provision is anomalous in this respect…
(Citations omitted)
[7] PBU & NJE v Mental Health Tribunal (2019) 56 VR 141 at [159]-[161].
Justice Bell observed that paragraph (a) of the sub-section, in not referring to capacity, differed not only from the common law test, but also the United Kingdom Act on which it was modelled and provisions in other Australian States and Territories, including s 5A of the Mental Health Act 2009 (SA).

The reasons in PBU provide a careful historical and principled analysis of the legislative development of the functional test of capacity. It is not necessary to recreate that analysis here. As an analysis of principle capable of being applied to s 5A of the Mental Health Act 2009 (SA), it was not challenged. The applicant submitted and the respondent accepted that the test under s 5A(2)(a) requires, in every relevant particular, a functional approach not just to whether the person does understand, retain or use the information, but also whether they are capable of doing so.
What this means in practice has also been the subject of considerable analysis. In PBU, Bell J gave careful consideration to the developed understanding of the functional approach to capacity. To this end:
·the functional approach is associated with the principle that a person is not to be treated as lacking capacity on account of their making a decision that could be considered objectively unwise;[8]
·a competent adult is therefore generally entitled to reject treatment even if to do so entails risk of death;[9]
·the same principle applies when it comes to assessing whether a person (whether mentally disabled or not) has capacity to consent to or refuse medical treatment;[10]
·an approach that focuses on the reasonableness of the outcome is not a part of the test, however well-intentioned it may be. In any event, it is inherently problematic to think that one person can necessarily determine the objective reasonableness of another person’s decision.[11] Decisions of this nature ‘may be so subjectively anchored in the individual values, relationships and life experience of the person as to make it difficult for another even to comprehend the decision; or even if properly comprehended, it may be so subjectively anchored in those respects as simply to defy objective characterisation at all’, regardless of the question of capacity.[12]
[8] PBU & NJE v Mental Health Tribunal (2019) 56 VR 141 at [164].
[9] PBU & NJE v Mental Health Tribunal (2019) 56 VR 141 at [165].
[10] PBU & NJE v Mental Health Tribunal (2019) 56 VR 141 at [166].
[11] PBU & NJE v Mental Health Tribunal (2019) 56 VR 141 at [167]-[168].
[12] PBU & NJE v Mental Health Tribunal (2019) 56 VR 141 at [169].
Justice Bell in PBU reviewed numerous international authorities in examining this legislative concept of capacity, against the background of common law liberties and values and recognised principles of human rights, in particular, the rights of self-determination, freedom from non-consensual medical treatment and personal inviolability. This review included a close analysis of the terms of and jurisprudence relating to the Convention on the Rights of Persons with Disabilities (CPRD) and the International Convention on Economic, Social and Cultural Rights (ICESCR). These conventions have in turn provided context to the interpretation of the European Convention on Human Rights. These considerations are of particular relevance in Victoria, where s 32 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘the Victorian Charter’) provides, in part:
32 Interpretation
(1)So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.
(2)International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.
…
His Honour’s analysis of the field is, with respect, illuminating. It is not necessary to parse it here, not least because of the absence of legislation in South Australia containing the interpretive commands of the Victorian Charter. Nevertheless, while South Australia has no analogous legislative instrument, s 16(1)(c), as informed by s 5A(2), intrudes on what has long been understood to be a fundamental common law right to bodily integrity. As the Western Australian Court of Appeal has observed:[13]
It has for a very long time been established at common law that a person has a right of control and self-determination in respect of his or her body; what is sometimes described as the individual’s right to the inviolability of his or her person. It is a substantial matter to encroach upon that fundamental common law right. In S v S, Lord Reid, Lord Guest and Lord Hodson considered that in light of it the court had no inherent power to order a person of full age and capacity to undergo a blood test. In my view, the position is the same in this case. The taking of a mouth swab of a person, like the taking of a blood sample, impinges upon the bodily integrity of the person. To order such a procedure against the person’s will would be an important inroad into a fundamental right and justice would not be served by such an inroad in the absence of legislative sanction.
[13] Furesh v Schor (2013) 45 WAR 546 at [50] (Newnes JA), referring to S v S [1972] AC 24.
No less is this so in the case of community treatment orders, hence the regime provided for in the Mental Health Act. The importance of this observation for the interpretation of s 16(1)(c), as informed by s 5A(2), lies in the consequent observation that where Parliament has authorised by legislation an intrusion into such a fundamental common law right, the principle of legality will operate, not to resist the intrusion, but to ensure that the intrusion goes no further than that which has been authorised, according to the accepted tenets of construction:[14]
The principle ought not, however, to be extended beyond its rationale: it exists to protect from inadvertent and collateral alteration rights, freedoms, immunities, principles and values that are important within our system of representative and responsible government under the rule of law; it does not exist to shield those rights, freedoms, immunities, principles and values from being specifically affected in the pursuit of clearly identified legislative objects by means within the constitutional competence of the enacting legislature.
The principle of construction is fulfilled in accordance with its rationale where the objects or terms or context of legislation make plain that the legislature has directed its attention to the question of the abrogation or curtailment of the right, freedom or immunity in question and has made a legislative determination that the right, freedom or immunity is to be abrogated or curtailed. The principle at most can have limited application to the construction of legislation which has amongst its objects the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle is sought to be invoked. The simple reason is that “[i]t is of little assistance, in endeavouring to work out the meaning of parts of [a legislative] scheme, to invoke a general presumption against the very thing which the legislation sets out to achieve”.
(Footnote omitted)
[14] Lee v NSW Crime Commission (2013) 251 CLR 196 at [313]-[314] (Gageler and Keane JJ).
To this end, the observations by Bell J in PBU support the conclusion that the test created by sub-ss 16(1)(c) and 5A(2) provides no room for an external assessment of what is in the person’s ‘best interests’. The test is one of capacity. Bringing the operative and definitional sections together, as the respondent submitted (and the applicant accepted), the relevant questions before the Tribunal on review were whether the respondent was not capable of:
·understanding any information that may be relevant to the decision about appropriate treatment of his mental illness, including information relating to the consequences of making a particular decision about appropriate treatment of his mental illness;[15] or
·using such information in the course of making a decision about appropriate treatment of his mental illness.[16]
[15] Mental Health Act 2009 (SA) sub-ss 16(1)(c) and 5A(2)(a)(i).
[16] Mental Health Act 2009 (SA) sub-ss 16(1)(c) and 5A(2)(a)(iii).
The applicant relied, by analogy, on the Canadian case of Starson v Swayze.[17] The Canadian legislation provided an analogous test, to the effect that the person must be able to understand the information that is relevant to making a decision about the treatment, and that the person must be able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. In that case, Professor Starson was a lay physicist of some accomplishment, such that he had been recognised with the honorary title. He had been diagnosed with a bipolar disorder and had frequently been admitted to psychiatric institutions. He had never harmed himself or others.
[17] [2003] 1 SCR 722.
Professor Starson’s physicians proposed a suite of medications for treatment of his bipolar disorder, which he refused. He did not conceive of his condition as an illness, although he accepted that he exhibited the symptoms of a bipolar disorder. He accepted the need to remain in hospital at times. He objected, however, to the administration of neuroleptic medication, on the basis that it would impede his ability to work as a physicist. He appreciated the intended effect of the medication, which was to slow his brain down to a normal range when compared with its activity in a manic episode.
The Court held that the question of capacity was fact-intensive and that the question of his ‘best interests’ was irrelevant. The evidence provided no basis for the findings by the relevant Board that Professor Starson was in ‘almost total denial’ about his mental disorder and that he failed to appreciate the consequences of his decision. Otherwise, there was no evidential support for the Board’s finding of incapacity.
On the test of capacity, Major J said:[18]
Capacity involves two criteria. First, a person must be able to understand the information that is relevant to making a treatment decision. This requires the cognitive ability to process, retain and understand the relevant information. There is no doubt that the respondent satisfied this criterion. Second, a person must be able to appreciate the reasonably foreseeable consequences of the decision or lack of one. This requires the patient to be able to apply the relevant information to his or her circumstances, and to be able to weigh the foreseeable risks and benefits of a decision or lack thereof. The Board’s finding of incapacity was based on their perception of Professor Starson’s failure in this regard.
Before turning to an analysis of the reviewing judge’s decision, two important points regarding this statutory test require comment. First, a patient need not agree with the diagnosis of the attending physician in order to be able to apply the relevant information to his own circumstances. Psychiatry is not an exact science, and “capable but dissident interpretations of information” are to be expected… While a patient need not agree with a particular diagnosis, if it is demonstrated that he has a mental “condition”, the patient must be able to recognize the possibility that he is affected by that condition… As a result, a patient is not required to describe his mental condition as an “illness”, or to otherwise characterize the condition in negative terms. Nor is a patient required to agree with the attending physician’s opinion regarding the cause of that condition. Nonetheless, if the patient’s condition results in him being unable to recognize that he is affected by its manifestations, he will be unable to apply the relevant information to his circumstances, and unable to appreciate the consequences of his decision.
(Emphasis added)
[18] Starson v Swayze [2003] 1 SCR 722 at [78]-[79].
A question of capacity for the purpose of s 16(1)(c) will be fact- and context-specific. While the capacity test does not admit of extraneous considerations, such as the ‘best interests’ of the person, that does not mean that incapacity cannot be proved, on the evidence, by reference to various considerations depending on the circumstances. Different factors may contribute to the conclusion, one way or the other. Thus, in Starson, Professor Starson did not accept that he had a bipolar disorder, although he did accept that he had mental health problems. In the present case, the applicant does not accept the diagnosis of schizophrenia, but does accept that he suffers from PTSD. A single point of comparison of that nature does not answer the inquiry. We endorse the observation by the Tribunal in GKK v Department of Health and Ageing:[19]
Insight or acceptance of the fact of a mental illness is clearly a significant factor in assessing whether a person has impaired decision making capacity as to the need for treatment for a mental illness. A failure by a person to accept that they are suffering from a mental illness may consequently lead to a conclusion that the person has impaired decision-making capacity as to the appropriate treatment for their mental illness.
[19] [2018] SACAT 30 at [60].
On the other hand, depending on all of the circumstances, it may not.
The Tribunal’s conclusions and the applicant’s challenge
These observations provide a foundation for considering the Tribunal’s reasons for concluding that the applicant lacks capacity within the meaning of s 5A of the Act. The Tribunal said:[20]
During the review hearing process, [the applicant] acknowledged that he suffers from episodes of psychosis when under stress or sometimes if triggered by his PTSD and he said that he considered that his conditions of PTSD and psychotic episodes would be appropriately treated with counselling and oral Aripiprazole.
Our concerns about [the applicant’s] own assessment of his mental illness and the relevant treatment are these. Schizophrenia is not PTSD and it is not a brief reactive psychosis although these diagnoses may be comorbid. Schizophrenia requires a highly sophisticated treatment regime including community packages because of its damaging effects.
In our assessment, [the applicant’s] assessment of his mental illness and his reluctance to continue with the depot antipsychotic medication demonstrate that he lacks a proper understanding of the precise nature of his illness, the seriousness of his mental illness and he also lacks comprehension as to the likely consequences if his depot medication is not continued. We also have reservations about [the applicant’s] willingness to undertake counselling for his PTSD.
In our view, [the applicant’s] psychotic condition has clouded his judgement and we consider that [his] lack of insight amounts to a lack of decision-making capacity with respect to appropriate treatment for his mental health condition.
(Citations omitted)
[20] Order of the Tribunal (Internal Review of a Level 2 Community Treatment Order) 2020/SIR000302 at [51]-[54].
The Tribunal’s conclusion is set out in the last of these paragraphs. The operative reasoning the focus of the applicant’s complaint immediately precedes that. The applicant identifies the reasoning in this paragraph as demonstrative of legal error, in the following ways.
First, he submits that to rely on a conclusion that he lacks a proper understanding of the precise nature of his illness is contrary to principle. Sub‑section 5A(3)(a) provides that a person will not be taken to be incapable of understanding information merely because the person is not able to understand matters of a technical or trivial nature. A person may be capable of understanding relevant information (s 5A(2)(a)(i)) despite not agreeing with the diagnosis.
Secondly, he argues that a finding that he lacks an understanding about the ‘seriousness’ of his mental illness is not relevant to the assessment of his decision‑making capacity. The test is not met on the basis of contestable value‑judgments.
Thirdly, he submits that implicit in the finding that he lacked comprehension as to the likely consequences if his depot medication is not continued, is a finding that it is a likely consequence of being on oral medication that he will become non-adherent to medication. That is a contestable judgment as to the likely consequence, not a conclusion about the applicant’s capacity to understand the consequence of non-adherence. A difference of opinion with the treating specialist, even a foolish one, does not establish an incapacity to understand the consequences of not taking the depot medication.
The applicant submits that it cannot be said that he does not understand what is being said about his condition and the need for treatment. Indeed, he agrees that he needs treatment and that this should be with aripiprazole. He simply disagrees with the method of administration.
The operative reasons of the Tribunal on review are short. They are not to be read in isolation from the balance of the reasons. It is open to this Court, on an appeal by way of rehearing, to draw inferences of fact from material before the Tribunal.[21] Moreover, as the Tribunal is a specialist tribunal it is to be expected that there will be a degree of economy in its expression of concepts.
[21] South Australian Civil and Administrative Tribunal Act 2013 (SA) s 71(3a) and (3b).
The challenged reasons should be read, in the first instance, in light of the report of Dr Tai dated 8 February 2021, which was before the Tribunal on review. Dr Tai wrote:
In terms of Decision-Making Capacity, I believe that this is impaired given the poor insight into his psychiatric illness and need for ongoing treatment with depot antipsychotic medication. His recent compliance with depot Aripiprazole depot [sic] may have improved this capacity but he is at significant risk of discontinuing this medication should his CTO [community treatment order] be revoked, as is evident from past experience. Please also note that he has been consistently noncompliant with oral mood stabiliser (sodium Valproate). Please see additional notes from his Primary Clinician regarding statements regarding [the applicant] wishing to only take oral medications.
Consistently with this, the Tribunal found:[22]
We note [the applicant’s] preference to take oral Aripiprazole and the assessment of Dr Lee and Dr Tai that oral Aripiprazole is inadequate to treat [the applicant’s] condition. Dr Tai’s report chronicles a history of [the applicant] having been non-compliant with treatment regimes for his mental health condition in the past.
We have concluded that on the basis of his longer term medical history, it is unlikely that [the applicant] would continue to be compliant without a CTO. We consider that an established pattern of previous non-compliance in the longer term suggests that it is likely [the applicant] would be non-compliant in the future.
[22] Order of the Tribunal (Internal Review of a Level 2 Community Treatment Order) 2020/SIR000302 at [63]-[64].
This conclusion is squarely based on Dr Tai’s observations about the applicant’s poor insight into his psychiatric illness and need for ongoing treatment with depot antipsychotic medication. The evidence was that the applicant had a history of ceasing to take oral medication when he had the opportunity to do so.
The applicant said that his preference was to take oral medication because the injections hurt his arm. His maintenance of that preference against this history does not necessarily mean that he lacks the capacity to understand information that may be relevant to the decision about his treatment for his mental illness. However, it is evidence relevant to the issue. It was capable of informing the Tribunal about how the applicant conceptualised his condition[23] and how he used information about the appropriate treatment of that condition.[24] The Tribunal was entitled to rely on it in reaching its conclusion.
[23] Mental Health Act 2009 s 5A(2)(a)(i).
[24] Mental Health Act 2009 s 5A(2)(a)(iii).

A further piece of evidence, again not determinative alone, was the fact that he did not accept the diagnosis of schizophrenia. This was to be considered together with his attitude to his medication, in light of his clinical history.
The Tribunal also had regard to the detail of the applicant’s presentation of his case before it, identifying the following statements in his written submissions:[25]
·I am writing this as a balanced person, who does not need drugs;
·They then used this illegal order to torture and drug me into submission;
·I must speak up and fight back to protect my life and health from licenced drug pushers, who have no insight;
·I have PTSD which they refuse to supply counselling for. Instead lazily option for drugs for schizophrenia, and now even bipolar disorder.
·Therefore drugs and a restrictive human rights abusing order, are not the least restrictive means in my individual case.
·I have not presented in a harmful psychotic way.
·I have not been psychotic at all during this whole sad farce, just understandably angry.
[25] Order of the Tribunal (Internal Review of a Level 2 Community Treatment Order) 2020/SIR000302 at [41].
On the hearing of the appeal, counsel for the respondent referred to excerpts of transcript from the Tribunal hearing where the applicant made statements that further supported these views. He maintained that he suffered from PTSD only, that he had suffered from a reactive, brief acute psychosis, in particular when a doctor would upset him, and indeed that ‘it’s about people who trigger my PTSD’. He further characterised his understanding of his condition by referring to the effect of aripiprazole as being, ‘I probably seem calmer’. Otherwise, he accepted that he would have ‘angry outbursts’, ‘with mild psychosis associated with those anger outbursts’.
The conclusions to be drawn by a Tribunal in cases of this nature will always be fact-specific and dependent on the evidence. The limits of the applicant’s appreciation of matters relating to his condition did not end at simply not accepting the diagnosis of schizophrenia. They extended to a fundamental failure to appreciate the impact of that condition and the treatment that was required to address it. Each matter identified above was capable of contributing to a conclusion that the applicant was incapable of understanding relevant information contemplated by s 5A(2)(a)(i) or using such information in the course of making a decision about treatment, as contemplated by s 5A(2)(a)(iii).
The capacity test does not, to this end, focus simply on cognitive ability. As counsel for the respondent submitted, there is an overlap between the concepts of capacity to ‘understand’ information and capacity to ‘use’ it. It must be accepted that a conclusion that a person does not understand some piece of information relating to a decision about health care does not necessarily mean that the person is incapable of understanding or using it. However, the totality of the evidence may well support that further conclusion.
Here, the totality of the evidence ranged from the applicant’s non-acceptance of the diagnosis of schizophrenia to his failure to appreciate critical aspects of his own presentation, and his consequent denial of the utility of depot injections of aripiprazole over oral doses.
The Tribunal’s conclusions should be read against this evidential background. Its conclusion that the applicant lacks a proper understanding of the precise nature of his illness should not be read as a contradiction of its earlier observation that a person does not have to fully understand all the precise details of the mental illness and treatment. In context, this is a reference to the applicant’s insistence that he had suffered from a brief, reactive psychosis, as opposed to suffering from the chronic condition that the medical evidence supports. This is a fundamental matter that then feeds into the question of the appropriate treatment.
The Tribunal’s second conclusion, that the applicant lacks a proper understanding of the seriousness of his illness, should, similarly, not be read in a vacuum. This does not merely relate to a question about the degree of seriousness of an otherwise accepted condition. Rather, it identifies that in his failure to accept and understand the diagnosis of schizophrenia, a chronic condition, the applicant, while accepting he has a mental illness, does not understand the significance of the psychosis from which he suffers. This is illustrated by his diminishment of his condition to the Tribunal as ‘mostly angry outbursts’ and denial of elements of his presentation. His denial of the necessity for depot injections cannot be separated from his failure to understand the ‘seriousness’ of his chronic condition.
Finally, the Tribunal’s finding that the applicant lacks comprehension as to the likely consequences if his depot medication is not continued is not merely a matter of contestable judgment. This finding cannot be separated from those about his appreciation of his condition. The applicant was unable to identify the benefits of the depot injections. He identified only one detriment, in that the injections cause him pain.
When read together, these integrated conclusions of the Tribunal demonstrate a failure by the applicant to understand the nature and quality of his condition which translates to an inability to make judgments as to the appropriate treatment. As the Tribunal then concluded:[26]
In our view, [the applicant’s] psychotic condition has clouded his judgement and we consider that [his] lack of insight amounts to a lack of decision-making capacity with respect to appropriate treatment for his mental health condition.
[26] Order of the Tribunal (Internal Review of a Level 2 Community Treatment Order) 2020/SIR000302 at [54].
The evidence supported this conclusion of incapacity with respect to appropriate treatment for the applicant’s mental health condition. The conclusion does not rely on impermissible inferences.
The complaint that the Tribunal’s conclusion was not open extends to a proposition that it was not sufficient for the Tribunal to approach the question of capacity by including in its assessment answers given by the applicant in the setting of a Tribunal hearing. He submits that this was not a substitute for a doctor‑patient consultation; it was not sufficient for the Tribunal to use questions and answers at the hearing in place of an up-to-the-minute consultation, in circumstances where capacity can change. There had been no such consultation following his discharge from hospital.
The Tribunal is a specialist tribunal. It is not bound by the rules of evidence. It had the benefit of the evidence of Dr Tai, which described the applicant’s chronic condition of schizophrenia and the established risks associated with discontinuing his medication. Dr Tai’s report incorporated a review by Dr Michael Lee on 26 November 2020, which recorded the applicant’s continued rejection of the diagnosis of schizophrenia. The applicant provided the Tribunal with a full account of his views about his condition and the effect of the medication, and his reasons for not wanting the depot injections. This extended to denying significant aspects of his clinical history. The nature and course of the hearing did not prevent the Tribunal from reaching the conclusions that it did.
Conclusion
The Tribunal’s conclusion was to the effect that the applicant lacks capacity for the purposes of s 5A(2)(a)(iii) at the very least and, therefore, that the applicant suffers from impaired decision-making capacity relating to appropriate treatment of his mental illness for the purposes of s 16(1)(c). That conclusion was not affected by error. We grant leave to the applicant to appeal, but dismiss the appeal.