Mental Health Inquiries
Following amendments in late 2008 to the Mental Health Act 2007, the role of conducting mental health inquiries transferred from Magistrates to the Mental Health Review Tribunal on Monday 21 June, 2010. This meant that from this date mental health inquiries have been done by the Tribunal.
The key features of the mental health inquiry system are:
Practice Direction - The Tribunal has issued a Practice Direction which sets out the documentary and evidentiary requirements to establish the Tribunal's jurisdiction to conduct mental health inquiries.
Timing of mental health inquiries – the Act requires an assessable person to be presented for an inquiry ‘as soon as practicable’ after an authorised medical officer is notified of the finding that a person is mentally ill by the 2nd or 3rd examiner (see s27 (d)).
The Tribunal inquiries are conducted after sufficient time has elapsed to allow the treating team to properly assess whether the person should continue to be detained in the facility or discharged and to develop an appropriate community treatment or discharge plan and for the necessary information to be obtained for the Tribunal to make the appropriate decision. In most cases, this will take about 1 week and inquiries are held on the next rostered sitting day for the mental health facility. This means that people are usually presented for a mental health inquiry in the 2nd or 3rd week after they are detained. Having an inquiry at this time generally avoids the need for adjournments.
Who conducts mental health inquiries? While some inquires are listed before a full three member panel, most inquires are conducted by a single experienced legal Tribunal member. However, that member can at any time refer the matter to a full 3 member panel, which includes a psychiatrist and an other suitably qualified member.
How and when are mental health inquiries held? Mental health inquiries are conducted either by video conference or in person at the mental health facility. The Tribunal has a regular time when it visits or dials in to conduct mental health inquiries for each facility, usually once every 2 weeks (for example every second Monday afternoon, or every second Wednesday morning). The Tribunal, at that time, conduct inquiries for all assessable persons who have been detained in the facility for a week or more. This means that all persons will have a mental health inquiry during the 2nd or 3rd week of their hospitalisation. However, there is scope for urgent mental health inquiries to be held on a case by case basis at any time e.g. if a person is ready for discharge on a Community Treatment Order and all necessary information (including an appropriate treatment plan) is ready before the next scheduled mental health inquiries session.
Can an assessable person still appeal to the Tribunal against a refusal to discharge? Yes, an assessable person may apply to an authorised medical officer for discharge at any time (s42). If this application is refused or not dealt within 3 working days then the person may appeal to the Tribunal (s44) against this decision or failure to make a decision. Appeal hearings must be conducted by full 3 member panels of the Tribunal unless the appeal is lodged by a person who has not yet had a mental health inquiry, in which case the appeal and the inquiry will usually be heard together as soon as possible by a single legal member of the Tribunal.
Expectations of mental health facilities – All mental health facilities need to ensure that they have video conference equipment that is working and available for use at inquiries at the scheduled time and that relevant staff are trained and available to use the equipment.
Every facility should have a tribunal liaison clerk or some person who is responsible for organising mental health inquiries and liaising with the Tribunal.
One week before the scheduled inquiry facilities need to fax or email to the Tribunal a list of all assessable persons who are to be presented for an inquiry. The list should include all persons who have been detained for a week or more who have not already had a mental health inquiry.
At least 2 days before the scheduled inquiry facilities must fax or email to the Tribunal all relevant documents for all assessable persons who are to be presented for an inquiry. This will include all checklists, scheduling documents, certificates (Form 1s), medical and other reports, copies of notice of inquiry, copies of progress/file notes, and proposed treatment plans (if applying for a Community Treatment Order).
On the day of the inquiry all relevant members of the treating team should be available to give evidence to the Tribunal and to facilitate the participation of the assessable person and their legal representative, along with the person’s primary carer and any other involved relatives or other interested persons.
What happens after a mental health inquiry is held? The Tribunal will arrange for a copy of the Tribunal’s determination to be provided to or faxed to the facility. A copy of this should be given directly to the patient and a copy placed on the patient’s file at the facility. An appropriate member of the treating team should explain the outcome of the mental health inquiry to the patient and be available to answer any questions he or she might have.
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