What is the Mental Health Review Tribunal?
The Mental Health Review Tribunal is a specialist quasi-judicial body established under the Mental Health Act 2007. It has a wide range of powers that enable it to make and review orders, and to hear some appeals, about the treatment and care of people with a mental illness.
The Tribunal has a president, two full time and four part time deputy presidents, a registrar and approximately one hundred part time members. Each Tribunal panel consists of three members: a lawyer who chairs the hearing, a psychiatrist, and another suitably qualified member. All Tribunal members have extensive experience in mental health, and some have personal experience with a mental illness or caring for a person with mental illness. The President and two of the Deputy Presidents are former judges.
The Tribunal conducts hearings in hospitals and community health centres throughout the Sydney, Wollongong, and Newcastle metropolitan regions, and also in Goulburn and Orange. The Tribunal conducts hearings for people living outside these areas either by videoconference or by telephone.
The Tribunal has a wide jurisdiction, and conducts both civil and forensic hearings.
In its civil hearings, the Tribunal may:
- make Involuntary Patient Orders authorising the continued involuntary detention of a person made an involuntary patient by a Magistrate’s Order;
- review involuntary patients in mental health facilities, usually every three or six months, and in appropriate cases every 12 months;
- review voluntary patients in mental health facilities, usually every twelve months.
- hear appeals against an authorised medical officer’s refusal to discharge an involuntary patient;
- make, vary and revoke Community Treatment Orders;
- hear appeals against a Magistrate’s decision to make a community treatment order;;
- approve the use of ECT for involuntary patients;
- determine if voluntary patients have consented to ECT;
- approve surgery on a patient detained in a mental health facility;
- approve special medical treatment (sterilisation); and
- make and revoke orders under the Protected Estates Act for a person’s financial affairs to be managed by the Protective Commissioner.
The Tribunal also reviews the cases of all forensic patients:
- who have been found not guilty by reason of mental illness;
- who have been found unfit to be tried; or
- who have been transferred from prison to hospital because of a mental illness.
The Tribunal’s decisions can involve the consideration of quite complex issues, and can impact directly on people’s lives, health and liberty. In making its decisions, the Tribunal seeks to balance several sets of often competing rights - the individual’s right to liberty and safety and to freedom from unnecessary intervention, the individual’s right to treatment, protection and care, and the right of the community to safety and protection. Given the importance of these decisions, it is essential that the Tribunal receives the very best evidence available when hearing applications and making its decisions.
The Tribunal actively seeks to pursue the objects of the Mental Health Act. These are:
- to provide for the care, treatment and control of persons who are mentally ill or mentally disordered;
- to facilitate the care, treatment and control of those persons through community care facilities;
- to facilitate the provision of hospital care for those persons on a voluntary basis where appropriate and, in a limited number of situations, on an involuntary basis; and
- while protecting the civil rights of those persons, to give an opportunity for those persons to have access to appropriate care;
- to facilitate the involvement of those persons, and persons caring for them, in decisions involving appropriate care, treatment and control.
The Mental Health Act itself establishes principles for care and treatment as follows:
- people with a mental illness or mental disorder should receive the best possible care and treatment in the least restrictive environment enabling the care and treatment to be effectively given,
- people with a mental illness or mental disorder should be provided with timely and high quality treatment and care in accordance with professionally accepted standards,
- the provision of care and treatment should be designed to assist people with a mental illness or mental disorder, wherever possible, to live, work and participate in the community,
- the prescription of medicine to a person with a mental illness or mental disorder should meet the health needs of the person and should be given only for therapeutic or diagnostic needs and not as a punishment or for the convenience of others,
- people with a mental illness or mental disorder should be provided with appropriate information about treatment, treatment alternatives and the effects of treatment,
- any restriction on the liberty of patients and other people with a mental illness or mental disorder and any interference with their rights, dignity and self-respect is to be kept to the minimum necessary in the circumstances,
- the age-related, gender-related, religious, cultural, language and other special needs of people with a mental illness or mental disorder should be recognised,
- every effort that is reasonably practicable should be made to involve persons with a mental illness or mental disorder in the development of treatment plans and plans for ongoing care,
- people with a mental illness or mental disorder should be informed of their legal rights and other entitlements under this Act and all reasonable efforts should be made to ensure the information is given in the language, mode of communication or terms that they are most likely to understand,
- the role of carers for people with a mental illness or mental disorder and their rights to be kept informed should be given effect.
The Tribunal is also cognisant of the requirements of the United Nations Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care, as well as the National Mental Health Service Standards.
What happens at a civil hearing?
In civil hearings, a Tribunal panel may make legally binding decisions about the detention, review and ongoing care and treatment of the client. Before the hearing, the applicant will send an application to the Tribunal. The Tribunal will then contact relevant parties where necessary to inform them of the hearing and the need to provide evidence.
At the hearing, one or more health care professionals (such as the treating doctor, a social worker and a case manager) will give evidence about the need for the order that the treating team is requesting. The client will have the opportunity to give his or her view about the order being sought. Primary carers nominated by the client are also able to tell the Tribunal how they view the proposed order.
After taking into account the available evidence, the circumstances of the client and the legal requirements, the Tribunal panel will make a decision about whether or not to make the order.
The Tribunal conducts each hearing in an informal way. Nevertheless, each hearing still remains part of a legal process. The Tribunal follows the rules of procedural fairness and natural justice, but it is not bound by the formal rules of evidence. During a hearing, the members of the Tribunal will ask questions, so as to gather the information needed to make sure that all legal requirements have been met before the Tribunal makes an order.
Most Tribunal hearings are completed in about 30 minutes. However, sometimes they take longer to complete, depending on what may be needed to make sure that each person receives a full and fair hearing.
Representation
Any person whose case is being heard or reviewed by the Tribunal may have a lawyer to represent him or her at the hearing. The Mental Health Advocacy Service provides free legal aid for many types of hearings. Alternatively, the client can engage a private lawyer, at the client’s own expense.
In addition, someone who is not a lawyer may represent the client as his or her advocate, as long as the Tribunal agrees to this.
The Tribunal is keen to support and assist people through the hearing process, and generally encourages and welcomes the involvement of advocates and non-legal representatives. Someone wishing to represent a patient before the Tribunal should make a brief application at the start of the hearing. The proposed representative should indicate his or her name, relationship to the patient, and the reasons for asking to be acknowledged as the patient’s representative. The Tribunal will usually ask some preliminary questions before it decides about the appropriateness of the proposed representation.
Interpreters
People who speak a language other than English, or who require a sign interpreter, have a right to a free health care interpreter. Interpreters should always be involved in any Tribunal hearing where any person appearing before the Tribunal has a language difficulty, or where there is some doubt about that person’s capacity to comprehend English.
Adjournments
The Tribunal may from time to time adjourn its proceedings to such times, dates and places and for such reasons as it thinks fit. The purpose of adjourning proceedings is to ensure they are properly conducted. The Tribunal may adjourn proceedings if it is necessary to arrange for appropriate legal representation, or for an interpreter to assist the person or a primary carer or to allow for the production of important evidence.
Adjourning proceedings can have serious consequences. If the Tribunal adjourns proceedings in relation to a person who is detained in a mental health facility, that person is to continue to be detained in the facility unless discharged or allowed to be absent from the facility under another provision of the Act. As an adjournment may have significant consequences for an involuntary patient’s liberty, the Tribunal does not regard administrative convenience as a sufficient justification for an adjournment.
The authorised medical officer should ensure that involuntary patients are brought before the Tribunal well before the expiry or review date and with sufficient information to allow the matter to be finalised without the need for an adjournment.
Although the Tribunal has power to adjourn proceedings, it does not have power to extend the operation of community treatment orders beyond their expiry date by granting an adjournment. Unless a new order is made before the expiry of the existing order, the client will no longer be subject to the order. Therefore, to ensure continuity of care mental health facilities should ensure that the Tribunal is provided with the necessary information in a timely manner to allow it to hold a hearing and make the necessary order within time. Any adjournment will only have effect during the term of the existing community treatment order.
Expiry Dates
Orders are made and time calculated on the basis that an order or period limited in duration expires at the end of the relevant period i.e. at midnight on the day before the corresponding day of the relevant period. For example, for an order of three months duration made on 5 January the order expires at midnight on 4 April and no later. If there is no corresponding date because the month in which the expiry date would naturally fall has no 31st, 30th or 29th, then the last date that is available in that month will be the expiry date. For example, an order made for 1 month on 31 January 2007 expires on 28 February 2007 (or on 29 February in a leap year).
Orders expressed in terms of days or weeks should be treated similarly and expire at midnight on the day before the corresponding day of the relevant period. For example, an order made for one week on Wednesday 31 January 2007, expires at midnight on Tuesday 6 February 2007. An order made for 10 days on Tuesday 6 March 2007 expires at midnight on Thursday 15 March 2007