JM In Person Other: MR CM, LITIGATION GUARDIAN v THE DEPARTMENT FOR HEALTH AND WELLBEING [2025] SASC 192

On Appeal from SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL (SENIOR MEMBER RAINFORD) 2024/SIR000082 Applicant: JM In Person Other: MR CM, LITIGATION GUARDIAN Respondent: THE DEPARTMENT FOR HEALTH AND WELLBEING Counsel: MS D SEAL AND MS D RUSSELL - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 24/02/2025, 08/08/2025 File No/s: CIV-24-006799 B SUPREME COURT OF SOUTH AUSTRALIA (Appeal to a Single Judge) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. JM v THE DEPARTMENT FOR HEALTH AND WELLBEING [2025] SASC 192 Judgment of the Honourable Justice Stanley 28 November 2025 HEALTH LAW - TREATMENT AND CARE OF PERSONS WITH MENTAL ILLNESS - COMMUNITY TREATMENT ORDERS ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - OBLIGATORY AND DISCRETIONARY PROVISIONS - GENERAL PRINCIPLES This is an application for leave to appeal pursuant to section 71(2) of the South Australian Civil and Administrative Tribunal Act 2013 (SA) (SACAT Act). The decision subject of this appeal arises from an internal review by the South Australian Civil and Administrative Tribunal (the Tribunal), which affirmed the decision of the Tribunal in the first instance to issue a 12-month Level 2 Community Treatment Order (L2 CTO) for the applicant, pursuant to section 16 of the Mental Health Act 2009 (SA) (The Mental Health Act). The applicant, diagnosed with schizophrenia in 2005, has a history of non-compliance with medication and substance abuse leading to repeated relapses, various treatment orders and admissions to treatment facilities where he has made occasional threats against professionals responsible for his psychiatric care. While the anterior issue for the Court is whether leave should be granted; in determining whether appellable error is established under s 71 of the SACAT Act the Court must first determine whether the Tribunal’s decision is properly characterised as evaluative or discretionary. In this case, that characterisation turns on the wording and operation of the Mental Health Act. The respondent submitted, and the Court accepted, that the language of section 16 of the Mental Health Act confers a discretionary exercise. An internal review conducted by a Senior Tribunal Member is by way of rehearing and therefore retains the discretionary character of the original decision, such that the -- 1 of 15 -- Court’s role on appeal is to determine whether the decision to issue a L2 CTO was affected by either a process error or outcome error of the kind identified in House v The King. At the hearing of this application, the applicant was represented by his father, Mr CM, as his litigation guardian. The applicant’s submissions complained that the decision under appeal constituted a breach of his human rights, involved an "injustice of process," and pointed to re-occurring failures to address concerns raised in relation to previous treatment. In particular, he complained that he was not receiving the least restrictive care available, objecting to painful depot injections that caused him injury. The applicant also submitted that the Tribunal relied on misleading and outdated information provided by the respondent, noting the absence of a medical report from a different doctor and claiming that the Central Adelaide Local Health Network had refused to provide him access to his medical records. Some of these documents were the subject of separate FOI proceedings. The respondent opposed the application for leave, submitting that the applicant had not identified any appellable error, that the proposed appeal lacked merit, and that it was not within the Court’s or Tribunals jurisdiction to determine the specific nature of the treatment to be administered under a L2 CTO. An additional issue raised by the applicant concerned the way in which “less restrictive alternatives” are to be considered, with reference made to a decision under the Mental Health Act 2007 (No 8) (NSW) (NSW MH ACT). The respondent submitted, and the Court accepted, that the legislative schemes in New South Wales and South Australia differ significantly, and that the South Australian Mental Health Act does not require the Tribunal to adopt the approach taken under the NSW MH Act. Held: 1. In the circumstances where the criteria in section 16 of the Mental Health Act for the making of a L2 CTO were satisfied by sound, clear and logical evidence, the applicant failed to identify any appellable error in the Tribunal’s decision or demonstrate that it was in the interests of justice for leave to appeal to be granted. 2. It is beyond the jurisdiction of the Tribunal or the Court to determine the specific treatment to be administered under a L2 CTO, this is a matter for medical professionals. 3. The SACAT Act and Mental Health Act make clear that applications of this sort are to be determined by the specialist tribunal, best equipped to resolve them efficiently and cost- effectively. As such, in deciding whether leave to appeal should be granted is to exercise judicial restraint, and granting leave in the circumstances would undermine that intention. 4. As the L2 CTO had expired, the appeal lacked practical utility. 5. Leave to appeal is refused. Child Safety (Prohibited Persons) Act 2016 (SA); Criminal Law Consolidation Act 1935 (SA); Mental Health Act 2007 (No 8) (NSW); Mental Health Act 2009 (SA); South Australian Civil and Administrative Tribunal Act 2013 (SA); Uniform Civil Rules 2020 (SA), referred to. Aldridge v Registrar of Firearms [2022] SASC 5; Galladin Pty Ltd v Aimnorth Pty Ltd (1993) 60 SASR 145; Jackson v Lepp Investments Pty Ltd 125 SASR 1; Re CCI [2016] SACAT 28, applied. GM v Department of Human Services [2025] SASCA 68; S v South Eastern Sydney & Illawarra Area Health Service & Anor [2010] NSWSC 178; FC v Public Advocate [2025] SASC 110; GKK v Department for Health and Aging [2018] SACAT 30; Minister for Immigration and Boarder Protection v SZVFW & Ors (2018) 264 CLR 541; Pix v South Australian Housing Trust (2016) 125 SASR 10; Varricchio v Wentzel (2016) 125 SASR 191; Zollo v Commissioner for Consumer Affairs [2023] SASCA 72, discussed. -- 2 of 15 -- JM v THE DEPARTMENT FOR HEALTH AND WELLBEING [2025] SASC 192 STANLEY J: Introduction 1 The applicant seeks leave pursuant to s 71(2) of the South Australian Civil and Administrative Tribunal Act 2013 (SA) (SACAT Act), to appeal the decision of the South Australian Civil and Administrative Tribunal (Tribunal) of 3 July 2024 following an internal review. By that decision the Tribunal affirmed the decision of the Tribunal at first instance to make a Level 2 Community Treatment Order (L2 CTO) for the applicant, made pursuant to s 16 of the Mental Health Act 2009 (SA) (Mental Health Act). 2 The respondent opposes the application for leave and in any event submits that the appeal should be dismissed if leave is granted. The respondent submits that the applicant has not identified any appellable error in the Tribunal’s decision nor do the interests of justice support a grant of leave. 3 The applicant has filed written submissions in support of his appeal which the respondent submits does not identify any proper ground to challenge the decision of the Tribunal or establish any reasonably arguable basis upon which such a challenge could be brought. 4 The respondent also submits that it is not within the power of the Court to grant the relief the applicant seeks on this application. The respondent submits that the type of treatment to be provided under a L2 CTO is not a matter within the jurisdiction of this Court or the Tribunal to determine an application of this kind under the Mental Health Act.1 5 The Mental Health Act provides for the making of treatment orders for persons who have a mental illness which require treatment for their own protection from harm or for the protection of others from harm. An order can be made where the person’s decision-making capacity relating to the appropriate treatment for that person’s mental illness is impaired and there is no less restrictive means than a L2 CTO for ensuring appropriate treatment. The Mental Health Act provides for a gradation of treatment orders. Those treatment orders are Level 1 and 2 CTOs and Level 1, 2 and 3 Inpatient Treatment Orders. A CTO applies to an affected person in the community. An Inpatient Treatment Order applies to an affected person who has been admitted to an authorised mental health facility. Representation 6 By an interlocutory application filed on 2 October 2024, the applicant sought the appointment of his father, CM, to be his Litigation Guardian. The applicant was going to be without legal representation at the hearing of this matter on 1 Re CCI [2016] SACAT 28 at [30]. -- 3 of 15 -- [2025] SASC 192 Stanley J 2 24 February 2025. On 1 December 2024 I gave permission for the applicant to be represented by CM. I did so in accordance with the principle in Galladin Pty Ltd v Aimnorth Pty Ltd2 subsequently followed by Parker J in Jackson v Lepp Investments Pty Ltd.3 I did so because I was satisfied that it was in the interest of justice because had I not done so the applicant would have been left without representation and unable to properly present his submission. I was satisfied that CM had proper authority to represent his son. Leave to appeal 7 In determining a question of leave to appeal a primary consideration for the Court will be whether it is in the interests of justice to hear and determine the appeal. Ordinarily, the Court will only grant leave where an appeal is reasonably arguable and the subject matter is of sufficient substance to justify consideration.4 8 The requirement for leave to appeal is intended to screen out cases where the disputed question has little, or no, practical or legal significance, and there is neither an issue of principle nor a potential miscarriage of justice.5 The Court will not routinely grant leave to appeal from decisions of the Tribunal.6 The Court must give appropriate deference to the Tribunal’s role and expertise in deciding matters within its specialist jurisdiction so that some restraint is exercised when considering applications for leave to appeal from the Tribunal.7 In particular, the Court should not readily grant leave to appeal in cases where to do so would undermine the legislative intention of the SACAT Act and the Mental Health Act, intending for applications for community treatment orders and inpatient treatment orders to be dealt with by a specialist tribunal, which is better equipped to deal with such disputes in a timely and cost effective manner.8 Factual and procedural history 9 The applicant was first diagnosed with schizophrenia in 2005. At that time he was around 19 years of age. Since December 2012 the applicant has presented with a history of being non-compliant and repeatedly ceasing medication, as well as using illicit drugs, namely, methylamphetamines and cannabis, exacerbating the symptoms of his schizophrenia. This has repeatedly resulted in him being admitted to Glenside Hospital, and other treatment facilities where he has been non- compliant with his medication and threatened staff. At times he has presented as acutely psychotic with an irritable aroused mood, expressing paranoid delusions 2 (1993) 60 SASR 145 at 147. 3 [2016] SASC 62 at [3]-[6], (2016) 125 SASR 1 at 2-3. 4 Zollo v Commissioner for Consumer Affairs [2023] SASCA 72 at [29]; Jackson v Lepp Investments Pty Ltd [2016] SASC 62, (2016) 125 SASR 1. 5 Aldridge v Registrar of Firearms [2022] SASC 5 at [33], as recently applied in FC v Public Advocate [2025] SASC 110 at [44]- [45]. 6 Varricchio v Wentzel [2016] SASC 86 at [37], (2016) 125 SASR 191 at [37]. 7 Pix v South Australian Housing Trust [2016] SASCFC 57 [6], [8] and [9], (2016) 125 SASR 10 at 6,8 and 9. 8 Varricchio v Wentzel [2016] SASC 86 at [37], (2016) 125 SASR 191 at [37] as recently applied FC v Public Advocate [2025] SASC 110 at [45]. -- 4 of 15 -- [2025] SASC 192 Stanley J 3 and perceptual disturbance. Since February 2013 he has engaged with Western Community Mental Health Services and their various treating doctors. 10 He has also come into contact with the police. In December 2013 he was charged with driving dangerously to escape police pursuit. He was found not guilty due to mental incompetence. He was placed under a supervision order pursuant to Part 8A of the Criminal Law Consolidation Act 1935 (SA) (CLCA). 11 In the period from August 2019 to August 2020 the applicant was on a L2 CTO. He was treated with injections of Paliperidone 100 mg intra-muscularly on a monthly basis, and oral Quetiapine 600 mg nightly. During this period the applicant attended a number of appointments with his father and was reportedly doing well despite alleged ongoing poly substance abuse. 12 In 2021 he was again reported as using methylamphetamines. In March 2022 he was admitted to the Cramond Clinic after becoming psychotic when taking methylamphetamines. He later absconded. In November 2022 the applicant told a treating psychiatrist that he did not need treatment and that he did not have a mental illness. He refused to engage with his community treatment team. However, between April 2022 and January 2024 the applicant had no inpatient admissions despite ongoing use of amphetamines. 13 In January 2024 the applicant was admitted to Glenside hospital and shortly thereafter he was apparently refused bail in relation to outstanding traffic offences and taken into custody. 14 Over the years, he has made occasional threats against professionals responsible for his psychiatric care. 15 On 5 February 2024 the applicant’s treating psychiatrist applied, pursuant to s 16(4) of the Mental Health Act, for an order that the applicant be subject to a L2 CTO for 12 months. Included with this application was a medical report on the applicant’s mental health and a mental health care plan prepared by the treating psychiatrist. 16 On 4 March 2024 the Tribunal heard the application. The Tribunal received submissions from the applicant and his father and heard oral evidence from the applicant’s treating psychiatrist. The Tribunal found that the criteria in s 16(1) of the Mental Health Act was satisfied and that the applicant had a mental illness, namely, schizophrenia; there was a real risk associated with his behaviour when unwell, which placed him, and others, at risk; that his decision making capacity was impaired, specifically an inability to recall and retain information about the relationship between his symptoms and treatment and its consequences; and when untreated, he has lapsed and required inpatient treatment orders, such that there was no less restrictive alternative to a L2 CTO. The Tribunal made the order that the applicant be subject to a L2 CTO for 12 months. -- 5 of 15 -- [2025] SASC 192 Stanley J 4 17 On 27 March 2024 the applicant’s father, with authority granted by the applicant, applied to the Tribunal pursuant to s 70(1)(a) of the SACAT Act and s 83A(b)(i) of the Mental Health Act, for an internal review of the decision that he be placed under a L2 CTO. At the hearing of that application on 27 March 2024 the applicant was represented by legal counsel. 18 On 1 July 2024 the respondent filed a document with answers prepared by the treating psychiatrist in response to questions raised by the applicant’s and the respondent’s counsel. The respondent filed this document with the consent of the applicant’s counsel. The document explained that as of 1 July 2024 the treating psychiatrist maintained his previous diagnosis; considered the applicant’s schizophrenia was chronic such that he would not spontaneously recover; maintained that, if the applicant did not have treatment, there would be noticeable, progressive and irreversible cognitive decline in his general functioning, reducing his ability to live independently; his ability to self-care could deteriorate significantly; there was nothing in the applicant’s records to suggest his decision making capacity had improved; and maintained that the applicant was unlikely to voluntarily undergo treatment due to his history of non-compliance with medication. 19 At the hearing of the internal review by the Tribunal on 3 July 2024 the Tribunal received a written report from the applicant’s treating psychiatrist and again heard submission from counsel and the applicant’s father. The Tribunal was satisfied that each of the criteria under s 16 of the Mental Health Act were established,9 such that a L2 CTO was the correct, or preferable decision. Accordingly, the Tribunal affirmed the order under review. The applicant then brought this appeal. Mental Health Act 20 Section 16(1) of the Mental Health Act provides that the Tribunal may make a L2 CTO if it satisfied that: a. a person has a mental illness (defined in s 3 to mean “any illness or disorder of the mind”); and b. because of their mental illness, the person requires treatment for their own protection from harm (whether physical or mental, and including harm involved in the continuation or deterioration of the person’s condition) or 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 CTO of ensuring appropriate treatment of the person's illness. 9 I will shortly refer in detail to these criteria. -- 6 of 15 -- [2025] SASC 192 Stanley J 5 21 Section 16(2) of the Mental Health Act provides that in considering whether there is no less restrictive means than a community treatment order of ensuring appropriate treatment of the person's illness, consideration must be given, amongst other things, to the prospects of the person receiving all treatment of the illness necessary for the protection of the person and others on a voluntary basis. 22 Section 5A(1) of the Mental Health 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. However, pursuant to section 5A(2) of the Mental Health Act a person will be taken to have impaired decision-making capacity in respect of a particular decision if, relevantly, they are not capable of understanding and/or retaining relevant information, including information relating to the consequences of that decision, while making decisions. Section 18 of the Mental Health Act provides that a patient to which a L2 CTO applies may be given treatment for their mental illness of a kind authorised by a psychiatrist or authorised medical practitioner who has examined the patient. 23 The Tribunal’s decision is informed by the objects and principles in s 6 and s 7 of the Mental Health Act. They provide as follows: 6—Objects The objects of this Act are— (a) to ensure that persons with severe mental illness— (i) receive a comprehensive range of services of the highest standard for their treatment, care and rehabilitation with the goal of bringing about their recovery as far as is possible; and (ii) retain their freedom, rights, dignity and self-respect as far as is consistent with their protection, the protection of the public and the proper delivery of the services; and (b) for that purpose, to confer appropriately limited powers to make orders for community treatment, or inpatient treatment, of such persons where required. 7—Guiding principles (1) The Minister, the Tribunal, the Chief Psychiatrist, health professionals and other persons and bodies involved in the administration of this Act are to be guided by the following principles in the performance of their functions: (a) mental health services should be designed to bring about the best therapeutic outcomes for patients, and, as far as possible, their recovery and participation in community life; (ab) mental health services should meet the highest levels of quality and safety; -- 7 of 15 -- [2025] SASC 192 Stanley J 6 (ac) mental health services should (subject to this Act or any other Act) be provided in accordance with international treaties and agreements to which Australia is a signatory; (b) mental health services should be provided on a voluntary basis as far as possible, and otherwise in the least restrictive way and in the least restrictive environment that is consistent with their efficacy and public safety, and at places as near as practicable to where the patients, or their families or other carers or supporters, reside; (c) mental health services should be governed by comprehensive treatment and care plans that are developed in a multi-disciplinary framework in consultation with the patients (including children) and their family or other carers or supporters; (ca) mental health services should take into account— (i) the different developmental stages of infants, children, young persons, adults and older persons; and (ii) the gender or gender identity, or the sexuality or sexual identity or orientation, of persons; (iii) and the particular needs of persons with disability; and (iv) in the case of persons of Aboriginal or Torres Strait Islander descent— the persons' traditional beliefs and practices and, when practicable and appropriate, involve collaboration with health workers and traditional healers from their communities; and (v) the cultural and linguistic backgrounds of persons; and (vi) the background, circumstances and particular needs of persons who have experienced torture or trauma; (d) there should be regular medical examination of every patient's mental and physical health and regular medical review of any order applying to the patient; (e) children and young persons should be cared for and treated separately from other patients as necessary to enable the care and treatment to be tailored to their different developmental stages; (f) the rights, welfare and safety of the children and other dependants of patients should always be considered and protected as far as possible; (g) medication should be used only for therapeutic purposes or safety reasons and not as a punishment or for the convenience of others; (h) restrictive practices should be used only as a last resort for safety reasons and not as a punishment or for the convenience of others; (i) patients (together with their family or other carers or supporters) should be provided with comprehensive information about their illnesses, any orders -- 8 of 15 -- [2025] SASC 192 Stanley J 7 that apply to them, their legal rights, the treatments and other services that are to be provided or offered to them and what alternatives are available; (j) information should be provided in a way that ensures as far as practicable that it can be understood by those to whom it is provided. (2) In this section— mental health services means all services involved in the treatment, care and rehabilitation of persons with severe mental illness, including the making and carrying out of orders under this Act and services to assist the recovery of patients after the termination of the orders or the completion of treatment; patient includes a voluntary community patient. 24 When making an order pursuant to s 16 of the Mental Health Act the Tribunal needs to be satisfied to the degree necessary to reach the correct or preferable decision as to whether a L2 CTO should be made. In making an order pursuant to s 16 the Tribunal needs to have a reasonable or comfortable degree of satisfaction that the requisite criteria for making an order has been met. This requires the Tribunal to have sound, clear and logical evidence of each of the criteria, including expert evidence from appropriately qualified professionals. This level of satisfaction is not to be reached on the basis of inadequate, vague or uncertain evidence.10 Nature of this appeal 25 Section 71 of the SACAT Act provides for appeals from the Tribunal to the Court. Under this section the applicant requires leave to appeal; an appeal is by way of rehearing; on appeal, the Court may draw inferences of fact from evidence or material which was before the Tribunal and may, as it thinks fit, allow further evidence or material to be presented. On appeal, the Court may affirm, vary or set aside the decision appealed against, and if it thinks fit, may remit the matter back to the Tribunal for further consideration with any directions the Court considers appropriate; and the Court may make any interim, ancillary or consequential orders it considers appropriate. 26 Section 83A of the Mental Health Act operates in conjunction with the application of Part 5 of the SACAT Act, including appeals to this Court under s 71 of the SACAT Act. Section 83A(g) of the Mental Health Act provides that an appeal under s 71 of the SACAT Act must be instituted within 14 days after the later of the making of the decision to which the appeal relates, or being furnished with the reasons for that decision, but the Court may also dispense with this requirement if it is satisfied that it is just and reasonable in the circumstances to do so. 10 GKK v Department for Health and Aging [2018] SACAT 30 at [27]. -- 9 of 15 -- [2025] SASC 192 Stanley J 8 27 In deciding whether appellable error is established for the purposes of s 71 of the SACAT Act, the Court must be satisfied that the decision under appeal is wrong having regard to all the evidence before the tribunal.11 28 Section 70(5) of the SACAT Act requires the Tribunal, on an internal review, to reach the correct or preferable decision. In doing so the Tribunal must have regard to, and give appropriate weight to, the decision of the Tribunal at first instance. A decision pursuant to s 70(5) of the SACAT Act is an appellable decision under s 71 of the SACAT Act. The test for appellable error following an internal review is whether it failed to reach the correct or preferable decision. This presents a difficulty of construction. On the one hand the requirement that the Tribunal reaches the correct decision seems to import the correctness standard of appellable review. On the other hand, the requirement that the Tribunal reaches the preferable decision appears to impose a discretionary decision. It may be that the difficulty of construction can be resolved by recognising that the duty of the Tribunal is informed by the requirement that it conducts a fresh hearing in accordance with s 70, such that the Tribunal is under a duty to arrive at the correct or preferable decision. Accordingly, the nature of the appeal must be understood as conforming to the correctness standard.12 29 The effect of s 71 is that an appeal from the Tribunal pursuant to the SACAT Act operates in the same manner as a civil appeal to a single judge13 or to the Court of Appeal14 as the case may be. However, it is important to recognise that an appeal to the Court from the Tribunal is materially different from the review conducted by the Tribunal of the decision made by the Tribunal. Where the ultimate task of the Tribunal is to reach the correct or preferable decision, the role of the Court is to determine whether the Tribunal erred in making a L2 CTO.15 30 Counsel for the Department submitted that the decision subject of this appeal was discretionary. They sought to distinguish the findings by the Court of Appeal in GM, an appeal concerning the nature of a decision made under s 32 of the Child Safety (Prohibited Persons) Act 2016 (SA), from the nature of a decision made under s 16 of the Mental Health Act. The Department submitted that while the issue of whether a person has a mental illness16 has the appearance of a decision that admits of only a single, correct answer, it is apparent from the terms of s 16(1)(d) and s 16(2) of the Mental Health Act that the decision to be made by the Tribunal is discretionary in its nature. Section 16(1)(d) provides that for the purposes of making a L2 CTO the Tribunal must be satisfied that there is no less restrictive means than a L2 CTO of ensuring appropriate treatment of the person’s illness. Section 16(2) provides that in considering whether there is no less 11 GM v Department of Human Services [2025] SASCA 68. 12 Minister for Immigration and Boarder Protection v SZVFW & Ors [2018] HCA 30 at [48] – [49], (2018) 264 CLR 541 at 563. 13 Uniform Civil Rules 2020 (SA) 217.10. 14 Uniform Civil Rules 2020 (SA)218.17. 15 Aldridge v The Registrar of Firearms [2022] SASC 5 at [54]. 16 Mental Health Act 2009 (SA) s 16(1)(a). -- 10 of 15 -- [2025] SASC 192 Stanley J 9 restrictive means than a L2 CTO of ensuring appropriate treatment of the person’s illness, consideration must be given, amongst other things, to the prospects of the person receiving all treatment of the illness necessary for the protection of the person and others on a voluntary basis. The department also submitted that there appears to be a very clear discretion within the test for whether it is appropriate to make an order for a L2 CTO as indicated by the language used in section 16 of the Mental Health Act; that is, “if” the Tribunal is satisfied, it “may” make an order. I accept this submission, and as such, where the decision is discretionary, as in this case, the Court must be satisfied that it involves an error of the kind identified in House v The King. 31 However, the anterior issue in this case is whether leave should be granted pursuant to s 71 of the SACAT Act to appeal from the decision of the Tribunal that the applicant be subject to a L2 CTO. Consideration 32 It was apparent from the submissions made by CM that the applicant was frustrated by a lack of responsiveness to his complaints that he was not receiving the least restrictive care and treatment options available. He complained that he was being administered depot injections, and that those injections were painful and caused him injury in the nature of lumps on his arm and legs. He further complained that he was being denied procedural fairness because of a failure to provide him with his medical records. He says this failure had the result that the Tribunal was not making decisions on the basis of the best available information concerning the applicant. 33 He expressed his concern that the facilities for treatment for the mentally ill were inadequate generally and in his case resulted in him being in gaol because of the lack of appropriate facilities in which to treat his psychiatric illness. He contrasted this with the situation in New South Wales where he submitted they have a better system for community treatment. 34 The respondent submits that the jurisdiction of the Tribunal and the Court is set out in the Mental Health Act. In particular, L2 CTOs are made pursuant to s 16 of the Mental Health Act which sets out the statutory criteria the Tribunal is required to consider. Section 18 of the Mental Health Act prescribes the operation of a L2 CTO which obliges a patient to undergo such treatment as determined by a relevant treating professional despite the absence or refusal of consent by the patient to the treatment. It is beyond the jurisdiction of the Tribunal and the Court to decide the treatment that a patient should undergo. 35 The respondent submits there is a long history in this matter of the applicant periodically being resistant to forms of treatment for his mental illness. On the basis of that history and the diagnosis of schizophrenia there was a clear basis for the Tribunal to reach the conclusion that the L2 CTO was required. -- 11 of 15 -- [2025] SASC 192 Stanley J 10 36 The applicant’s complaint that he has been denied procedural fairness is beyond the reach of this application. It was the subject of an FOI application which was rejected by the Tribunal and at the time of this hearing was before another Judge of the Court. The applicant was legally represented during the internal review by the Tribunal. His lawyer had access to the relevant documents and was, in any event, in a position to make an application for further documentary material to be disclosed pursuant to the SACAT Act if that was necessary. 37 Reference was made by the applicant to a report of a psychiatrist Dr Koopowitz, however, neither the applicant nor the respondent have been able to obtain this report from him. In any event, the respondent submits that the question of access to documents is not relevant to the issue of whether the applicant required a L2 CTO. 38 The applicant complains about the nature of the treatment that was administered to him involuntarily, in particular, the depot injections. It is not within the Court’s jurisdiction on an appeal from an order making a L2 CTO to determine the treatment to be administered. That is a matter to be determined by the applicant’s treating psychiatrist. 39 On a separate application for the appointment of a litigation guardian, a medical report was obtained from Dr Bianca Davidde, a GP consultant from Yatala Labour Prison. The report is dated 19 July 2024. Among other matters the report sets out Dr Davidde’s opinion that the applicant has a diagnosis of chronic paranoid schizophrenia with poor medication compliance, amphetamine and cannabis dependence, and a traumatic brain injury acquired at age 6. Dr Davidde considers the condition to be moderate and deteriorating; requiring a L2 CTO for medication adherence; that the applicant has limited insight as to when his mental health deteriorates; and has demonstrated very little capacity to manage his schizophrenia and substance use without a treatment order. There is no basis for concluding that the making of the L2 CTO was contraindicated by Dr Davidde’s opinion. On the contrary, the report tends to support the Tribunal’s decision. 40 There are other grounds set out in the notice of appeal but due to the expiry of the L2 CTO, which I will come to shortly, it is unnecessary to address those grounds. However, I should address one specific submission made by CM. 41 While not an express ground of appeal, the applicant submits that the Tribunal erred in not adopting the approach taken in S v South Eastern Sydney & Illawarra Area Health Service & Anor,17 particularly by failing to consider an imposition of less restrictive alternative orders. However, that submission is based on the statutory scheme enshrined in the Mental Health Act 2007 (No 8) (NSW) (NSW MH Act) Part 3 Division 1, and overlooks the different statutory scheme found in the Mental Health Act. 17 [2010] NSWSC 178. -- 12 of 15 -- [2025] SASC 192 Stanley J 11 42 The statutory schemes, both in New South Wales and South Australia, empower particular modes of treatment for mentally ill persons who are unwilling or unable to undergo necessary treatment for their illness. The legislative schemes are intended to protect both the affected person and other people. While the NSW MH Act and the Mental Health Act have common purposes, the statutory schemes differ. Part 3 Division 1 of the NSW MH Act addresses the considerations and criteria for determining applications for CTOs. It provides that a CTO authorising compulsory treatment in the community may be made, on an application, by the Mental Health Review Tribunal (MHRT). The MHRT determines whether an affected person should be subject to a CTO. It must consider the treatment plan proposed for the affected person. The MHRT may make an order if it determines that no other care of a less restrictive kind, consistent with safe and effective care, is appropriate and reasonably available to the person; that the affected person would benefit from the order as the least restrictive alternative consistent with safe and effective care; and a declared mental health facility has an appropriate treatment plan for the affected person and is capable of implementing it.18 43 While the concept of a “less restrictive alternative” is relevant to both the NSW MH Act and the Mental Health Act, the way in which that consideration is applied under each statutory regime is fundamentally different. 44 The NSW MH Act establishes a prescriptive framework which must be satisfied when an application for a CTO is considered, including the required submission of a treatment plan and treatment history. Treatment plans in that context expressly refer to the proposed medication regimen, therapeutic supports, and community-based services for the protected person. If any variation is approved, the plans are remitted to the MHRT. These are mandatory considerations of the application which the MHRT or Court must take into account under that statutory regime when considering if the order proposed is the least restrictive alternative, consistent with safe and effective care.19 The operation of the NSW MH Act is therefore distinguishable from the regime established pursuant to s 16 of the Mental Health Act, in particular, s 16(1)(d) which requires that before it makes an order for a L2 CTO the Tribunal must be satisfied no less restrictive means than a L2 CTO is available to treat the person, but does not require nor empower the Tribunal to import the approach taken under the NSW MH Act. While a treatment and care plan was provided to the Tribunal alongside the application for the L2 CTO, in South Australia there is no equivalent statutory requirement that a treatment, or care plan, be considered to the same extent by the Tribunal, only that there is no less restrictive means than a community treatment order of ensuring appropriate treatment of the person's illness. The Tribunal cannot decide what treatment is to be administered under a treatment order. That 18 Mental Health Act 2007 (NSW) s 53. 19 [2010] NSWSC 178 at [18], [37]-[43]. -- 13 of 15 -- [2025] SASC 192 Stanley J 12 is a matter for the medical professionals.20 Accordingly, the operation of the NSW MH Act differs from the exercise of the jurisdiction of the Tribunal and the Court. 45 The Tribunal’s duty under section 70 of the SACAT Act is to reach the correct or preferable decision.21 In this case that required the Tribunal to determine whether the decision to impose a L2 CTO on the applicant was correct or preferable. Having regard to the criteria in section 16(1) of the Mental Health Act. While the Court can consider whether the criteria in section 16 has been satisfied, it is not within the power of the Court to substitute its decision as to whether a L2 CTO should have been made. 46 As I have explained earlier, the jurisdiction of the Court is established pursuant to s 71 of the SACAT Act. An appeal to the Court from a decision of the Tribunal is by leave of the Court. An appeal pursuant to s 71 is by way of rehearing. 47 It is not within the Court’s jurisdiction to substitute its clinical judgment for the decision of the Tribunal.22 48 In concluding that there is no less restrictive means than a L2 CTO for ensuring appropriate treatment of the applicant’s illness,23 the Tribunal properly considered this issue and was not persuaded that the order made was wrong. The Tribunal considered the criteria in s 16 of the Mental Health Act and the evidence of the applicant’s treating psychiatrist that a L2 CTO was the least restrictive option for his safe and effective treatment. It found that there was no error on the evidence in making the L2 CTO. The applicant has not established that it is reasonably arguable this finding is erroneous. There was cogent evidence before the Tribunal that the applicant has a mental illness, and as a result requires treatment to protect himself and others from harm, and that his decision-making capacity relating to treatment of his mental illness is impaired, and there is no less restrictive means of ensuring appropriate treatment than a L2 CTO. 49 In any event, the respondent submits the appeal has been rendered inutile because the L2 CTO, being the subject of the appeal, expired on 3 March 2025. Disposition 50 The applicant has failed to identify any appellable error in the Tribunal’s decision. I consider that it is not reasonably arguable that the criteria by s 16 for the making of a L2 CTO was not met. Accordingly, he has failed to establish that it is in the interests of justice that leave to appeal should be granted. In any event, any appeal would lack utility because the operation of the orders that are the subject of the application have expired. 20 Re CCI [2016] SACAT 28 at [30]. 21 Mental Health Act 2009 (SA) s 70(5). 22 Re CCI [2016] SACAT 28 at [30]. 23 Mental Health Act 2009 (SA) s 16(1)(d). -- 14 of 15 -- [2025] SASC 192 Stanley J 13 51 Leave to appeal is refused. -- 15 of 15 --