On 12 March 2010 in S v South Eastern Sydney & Illawarra
Area Health Service  NSWSC 178, the NSW Supreme Court
considered the requirements for making a community treatment order
(CTO) under Part 3 of the Mental Health Act
2007 (NSW) (the Act).
In this case, Mr S suffered a low grade schizophrenic illness.
The evidence was that without the treatment Mr S engaged in bizarre
behaviour, including aggressive behaviour, hearing voices and
threatening physical harm to his father. He also had a number of
non-compliance issues with various treatment plans dating back to
In 2009 Mr S was under a CTO for Risperdal Costa 25mg
fortnightly, from which the current appeal was brought. The appeal
was heard 'de novo' where the evidence was heard
The issues considered by the Court regarded the interpretation
of section 53 of the Act:
whether no other care of a less restrictive kind (than that
provided for by the CTO), consistent with safe and effective care,
is appropriate and reasonably available and whether Mr S would
benefit from the order as the least restrictive alternative
consistent with safe and effective care;
whether a declared mental health facility has an appropriate
treatment plan for Mr S and is capable of implementing it; and
whether Mr S - having within the last twelve months been the
subject of a CTO - is likely to continue in or relapse into an
active phase of mental illness if the order is not granted.
In this case, Brereton J allowed the appeal on the basis that
whilst the CTO was appropriate, he was not satisfied that the order
made by the Tribunal was the least restrictive alternative
consistent with safe and effective care.
In the Court's view, a treatment plan that afforded Mr S the
option of oral or IMI depot medication, together with regular (say
monthly) supervision and review in a mental health facility to
monitor his condition, welfare and compliance, was appropriate
(though perhaps not optimal) and reasonably available, and would be
a less restrictive alternative (to one providing only for IMI depot
medication) consistent with safe and effective care.
The matter was then referred to the Area Health Service to make
a further application to the Mental Health Tribunal supported by
such a treatment plan.
This case indicates that the Courts are becoming more active in
objectively reviewing CTOs and ensuring that they are the least
restrictive alternative consistent with safe and effective care.
Clinicians preparing CTOs must ensure that the CTO is consistent
with each element of the Act.
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Liability was apportioned between the VMO, Dr.Brown, and the hospital on an 80/20 basis in favour of the hospital.
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