Hearings at the tribunal – listing and procedures

Division 5 of the Mental Health Act 2014 (Vic) sets out the procedure of the Mental Health Tribunal, including the rules that apply to its conduct of hearings and decision-making. For more information about the role and powers of the tribunal under the Act, see The Mental Health Tribunal – its role and powers.

Applications to the tribunal and listing of hearings

A hearing may be initiated:

Applications to the tribunal must have the appropriate form and content and be lodged as specified in the rules (s. 186). The application may be rejected by the tribunal if it is made by a person not entitled to apply, lodged late or otherwise does not comply with the tribunal’s requirements (s. 187). Applicants may also seek leave to withdraw their application, prior to a determination on it, or applications may be struck out if the applicant fails to appear (s. 188).

The tribunal will list the hearing as soon as practicable after the relevant application is made. There is provision for urgent listings, where required. The Act has specific time frames for listing electroconvulsive treatment (ECT) hearings.

Practice tip – procedural fairness of urgent applications

If your client is on a treatment order which is soon to expire and the psychiatrist does not apply to the tribunal for a further order within 10 business days before its expiry, there is a risk of breach of procedural fairness, particularly if the client has not been given the report and offered access to their file a minimum of 48 hours’ prior to the hearing.

See Procedural fairness and ECT Tribunal hearings – process and criteria.

Location, frequency and duration of hearings

Most tribunal hearings are conducted in person, in meeting rooms at the hospital or community mental health service where the person is receiving their treatment. Tribunal hearings are scheduled regularly – often weekly and sometimes twice weekly – at all public psychiatric hospitals and many community mental health services around Melbourne and throughout Victoria.

Practice tip

If the tribunal does not attend your client’s particular mental health clinic, the hearing will usually be held at the nearest public hospital’s psychiatric inpatient unit.

Some hearings (such as ad hoc hearings about ECT) are conducted by video conference between the mental health service and the tribunal offices, where the members are based, in Melbourne. Video conferences are not recorded.

Each hearing is generally allocated one hour. If an interpreter is present, typically an hour and a half is set aside. If the hearing is likely to take longer, the complex case listing guidelines are relevant. Note that clients who require an interpreter often require a longer hearing, as do hearings where an application for a treatment order is combined with an application for ECT.

Complex case listing guidelines

The tribunal registry must be advised if the usual hearing time of one hour will not be sufficient because of the complexity of the case. It can be advised of this by the person who is the subject of the hearing, their representative or the treating mental health service. The person advising that the case is complex must provide a written outline of the relevant issues and written submissions of any legal arguments that will be raised, as well as estimated time required, names of those to attend the hearing and role or relationship, any basis for urgent hearing and other relevant information.

Read more about the Tribunal’s complex case management procedure.

Adjournments

The tribunal may adjourn a hearing if there are valid reasons, for example, if a person is requesting legal representation. Ordinarily an adjournment will only be granted if it does not take the date of the rescheduled hearing beyond the expiry of the existing order.

The tribunal can only adjourn a hearing to a date beyond the end of a temporary treatment order or treatment order if there are exceptional circumstances. 'Exceptional circumstances' is not defined. The tribunal will determine whether there are exceptional circumstances on a case by case basis. If the tribunal does grant an adjournment in this situation, it will extend the existing order, but only to a period of not more than 10 business days, and only once (s. 192).

Practice tip

  • If the treating team requests an adjournment, or the tribunal is considering adjourning of its own motion, (for example, in order to get further evidence from the treating team before making its decision) consider obtaining your client’s instructions about opposing such an adjournment.
  • You can make submissions to the effect that the tribunal, as it is a primary decision-maker, should revoke the order rather than adjourn, if there is insufficient evidence before it in order to be satisfied the criteria apply.
  • Adjourning hearings where the tribunal will extend the duration of a person’s order has important implications for procedural fairness. See Procedural fairness.

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Access to information and the clinical file

Right to access information before a hearing

The Mental Health Act 2014 (Vic) states the authorised psychiatrist ‘must give a person’ subject to an order access to ‘any documents in its possession in connection with the proceeding’ at least 48 hours before the hearing (s. 191(1)). This is a separate and distinct right from the access rights afforded under Freedom of Information laws. It is also a considerably quicker process.

The obligation includes giving the person:

  • a copy of the report prepared by the authorised psychiatrist for the hearing
  • an opportunity to access their clinical file (this arguably extends beyond the documents that the service may choose to put before the Mental Health Tribunal).

Your client’s right to access information extends to you, as their lawyer, acting on their behalf. You should obtain your client’s signed authority and provide a copy to the service on request.

The service should also explain the report (and any other information given to the person) in a way they can best understand, including using an interpreter where required (s. 8).

Practice tips

  • A person should not need to request access to documents – the obligation is on the service to provide a person with a copy of the report, at the very least, and to offer access to their clinical file.
  • The tribunal will often enquire as to whether the person has had sufficient time to read the report and provide instructions. It may stand the matter down if the person needs more time to read the document. It may also do the same if the report has not been explained to the client with an interpreter in a language they understand.
  • In video conference hearings in particular, where only limited information from the file is given to the tribunal, you can request access on your client’s behalf to the entire clinical file. The report, after all, is a summary of, and will make reference to, details contained within the progress notes on the file.

If a person has only been handed their report but it hasn’t been explained to them, consider making submissions on the impact of the hearing on procedural fairness for the person.

See Getting access to information and the clinical file in practice.

Failure to provide information at least 48 hours before the hearing

If the mental health service has failed to comply with the 48-hour time frame for giving the client the report, seek your client’s instructions about whether they feel they have had enough time to prepare for the hearing. Ask whether they wish to proceed with the hearing or request an adjournment for more time to prepare, consistent with the right to a fair hearing under the Victorian charter (s. 24) and procedural fairness under the Act (s. 181(1)(b)).

Practice tips

  • Seek your client’s instructions if they have not been given the report and/or offered access to their file 48 hours before the hearing. It may also be worth considering submissions on revocation of the person’s order given the failure to provide procedural fairness. This is particularly relevant if adjourning the hearing would mean having to extend the person’s order.
  • When the client wishes to proceed with the hearing because, for example, adjourning the hearing risks prolonging their detention in hospital, the procedural fairness concerns can be raised directly with the tribunal as a preliminary matter, or pursued by way of a complaint, either directly to the mental health service, or to the Mental Health Complaints Commissioner.

See Procedural fairness.

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Common terms and abbreviations in clinical files

Term/abbreviation

Meaning

ADLs

Activities of daily living (e.g. dressing, showering, eating, cooking etc)

Ax

Assessment

BD

Twice daily (medication frequency)

BPAD

Bipolar affective disorder

BPD

Borderline personality disorder

C/O

Complained of

CAT team/CATT

Crisis Assessment and Treatment team

CCU

Community care unit – supported accommodation for people with mental illness, with onsite mental health clinical services

CLZ

Clozapine an (anti-psychotic medication)

D&A

Drugs and alcohol

D/C

Discharge (from hospital, compulsory order)

Depot

Medication given by injection

Dynamic factors

Factors that can change

EPSE

(Extra-pyramidal) side effects

ETOH

Alcohol

FTD

Formal Thought Disorder

HMO

Hospital medical officer (who may be the person’s treating doctor, under supervision of the authorised psychiatrist)

H/O

History of

Hx

History

IMI

Intra-muscular injection (also known as ‘depot’)

MDE

Major depressive episode

MSE

Mental state examination (including assessment of appearance, mood, thought content, behaviour, insight and judgement, and overall demeanour)

MST

Mobile support team

Mx

Medication

NAD

No abnormality detected / No acute distress

OOB

Out of bed

PARC

Prevention and recovery centre – residential unit in the community for short-term treatment – often a step-down from hospital

PRN

‘as needed’ (as distinct from a regular dose of medication)

Protective factors

Things which can reduce the likelihood of a negative outcome, e.g. by reducing risk

RPN

Registered psychiatric nurse

SAD

Schizoaffective disorder

SECU

Secure extended care unit – locked mental health inpatient unit which provides rehabilitation and treatment, often long-term

SI/SH

Suicidal idealation/suicidal harm

SRS

Supported residential service

Static factors

Factors that do not change

TDS

Three times daily (medication frequency)

THC

Cannabis/marijuana

Tx / Rx

Treatment

UDS

Urine drug screen

Ψ

Psychiatrist/psychiatric

Ψ Reg

Psychiatric registrar

1/51, 2/52

Weekly, fortnightly

1/12, 2/12

Monthly, bi-monthly (every two months)

15/60, 60/60

Every 15 minutes, every hour (usually a reference to frequency of nursing observations required whilst an inpatient on the ward)

Also be aware of HoNOS – the Health of the Nation Outcome Scales, which cover a range of domains including psychiatric symptoms and relationships, and set out a series of scales, with the format:

0 = no problem
1 = minor problem requiring no action
2 = mild problem but definitely present
3 = moderately severe problem
4 = severe to very severe problem

Getting access to information and the clinical file in practice

Before the hearing, your client has the right to review any documents in the possession of the treating service that are connected with the tribunal hearing. These documents will include the report on compulsory treatment as well as the clinical file.

Once you have instructions to act, you can seek your client’s consent to review their clinical file.

Explain to your client their right to access their file and the benefits of doing so before the hearing – checking evidence, verifying information in the report, seeking corroborating accounts of what they describe.

Some mental health services and staff may be more familiar with the access provisions and with requests for patient files prior to the Mental Health Tribunal hearings than others.

Liaise with service staff to request your client’s clinical file. If necessary, explain your client’s right of access which extends to you, as their legal representative, subject to any application to withhold information.

Hospital inpatient files generally only contain information and notes that relate to the person’s current admission, and probably also a discharge summary from the last admission. Long-term inpatients will commonly only have the last month of progress notes available on the hard copy of the clinical file. Older notes can sometimes be accessed by arrangement with the treating team.

Community mental health service files are usually multi-volume and will contain inpatient notes from any admissions to the related local inpatient mental health service. Typically only the most recent volume would be provided to the tribunal for their hearing. Due to the size of the file, it can sometimes take extra time for the service to arrange access.

Practice tips

  • You can review the file either alone or with the client, but if you do so with your client this may take longer. If you review the file alone you should then seek further instructions from your client if new issues arise or need clarification. Some treating services may require a written authority signed by your client before you will be granted access to view the file alone.
  • You can also help facilitate your client’s own access independently.
  • Your client may become upset about the content of the report or clinical file. Remind them that this is the treating team’s version of events, and that they will have an opportunity to put forward their own version.
  • Some hospitals and community mental health services now have electronic rather than paper files. These can take longer to review so allow yourself extra time. Check the clinic’s process for providing access as some may need to prepare a separate CD-ROM from which to access the file. Access will generally be in the form of a bookmarked PDF file which may need to be viewed on the clinic or hospital computer. Some services will print a limited amount of pages.

Difference with access rights under the Freedom of Information Act 1982

Your client has an automatic right to access documents that are in the possession of the treating service and are connected to the tribunal hearing (s. 191(1)). This right arises whenever your client has a hearing before the tribunal.

Section 191(1) imposes a positive obligation on the treating service, namely to give your client access to the information. As such, it must give your client a copy of the relevant reports and should offer your client access to the clinical file without prompting. This is different from the Freedom of Information Act 1982 (Vic) (FOI Act) which requires a person to make a written application before gaining access to information.

It may be useful to note s. 6A of the FOI Act which states that the FOI Act does not affect the operation of any other law that enables a person to access a document. This means the Mental Health Act overrules the FOI Act whenever the two laws conflict.

The treating service may also attempt to restrict you or your client’s access to information under FOI Act.

See Non-disclosure of documents in limited circumstances for more information.

Reviewing the clinical file and evaluating the evidence

The person’s clinical file is key evidence before the tribunal while the report on compulsory treatment is generally just a summary of that evidence.

Reviewing your client’s clinical file before the hearing is vitally important for a range of reasons, including that:

  • it gives a more detailed picture of the circumstances surrounding the making of the treatment order, including what information was communicated to the treating team and by whom (such as risks reported by family or other third parties)
  • it provides more detail on the progress of your client’s treatment whilst at the mental health service or hospital, and the treating team’s views about and plans for treatment
  • it documents how and to what extent, your client’s views and preferences have been considered by the treating team
  • there may be information in the file that is missing from the report which is helpful to your client’s case (for example, their circumstances have improved since the report was written)
  • there may be inconsistencies between what the report states and what the original entries in the clinical file reflect (for example, compliance and engagement with services, views about and attitude regarding treatment, allegations of harm or serious consequences or risks)
  • you may find information that corroborates your client’s instructions or their version of events (for example, allegations of serious deterioration or harm, voluntary admissions in the past)
  • they can contain information that the client may not be able to provide themselves (such as contact details for a helpful witness).

Practice tip

As the file notes are contemporaneous records, they should typically be accepted for their accuracy over and above any recollections or hearsay provided by the service in oral evidence.

Key information to look out for

Where time is limited, even a quick look through the file is important. Scan through the file for key documents and entries:

  • legal documents (in the ‘legal’ section of the file) – check all the relevant documents are present (for example, the assessment order, temporary treatment order or variation order). Also, check the validity of those documents, including compliance with requirements that specific persons make the order (for example, the assessment order and temporary treatment order are not made by the same psychiatrist (s. 48)) and relevant time frames as the case requires (for example, making a temporary treatment order before the assessment order expires). Deficiency is these documents may mean there is a jurisdictional argument to make
  • admission notes and assessment at the time of admission to hospital and examination and assessment by the authorised psychiatrist for the making of the temporary treatment order
  • history of community treatment – in particular compliance, engagement and voluntary treatment
  • progress notes which document any adverse incidents referred to in the report or mentioned by the client (for example, threats made, refusal of medication, any suggestion of violence or absconding) and positive progress (for example, improvements in mental state, compliance, plans for discharge)
  • discharge summaries from past hospital admissions
  • advance statement or clinical planning documents such as a wellness plan, safety plan, recovery plan or crisis assessment plan
  • referrals for accommodation or other services
  • clinical reviews or review summaries (where relevant)
  • assessments of capacity – particularly relevant for ECT
  • reviews by the consultant psychiatrist and any second opinion
  • risk assessments, including specialist assessment reports by Forensicare (often in the ‘correspondence’ section of the file)
  • correspondence from relevant agencies (for example, support services, neuropsychologists and other medical or allied health professionals)
  • leave granted (if an inpatient) and entries confirming success or otherwise of leave
  • most recent progress or nursing notes or psychiatric reviews that comment on mental state and compliance – compare these with entries at admission.

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Non-disclosure of documents in limited circumstances

If the service proposes to withhold certain information or documents from a person, they can only do so on very limited grounds and with the approval of the tribunal.

If the authorised psychiatrist believes that disclosure of certain information on the person’s clinical file may cause serious harm to that person or to someone else, they may apply to the tribunal for a determination that disclosure of that particular information be denied (s. 191(2)–(4)). That application should be sent to the tribunal at least two business days before the hearing on the prescribed form.

Practice tip

Serious harm is a very high threshold. It represents significantly narrower grounds for non-disclosure than in the former Act (which provided additional grounds of confidentiality and unreasonable disclosure of personal information).

Difference between restricting informat​ion under the Mental Health Act 2014 and the Freedom of Information Act 1982

The grounds to restrict a person’s access to information under the Mental Health Act and the Freedom of Information Act (FOI Act) are different. Under the FOI Act, access can be restricted if access would cause harm, or information was provided in confidence and access would reasonably be likely to impair the ability of the treating service to obtain similar information in future. The treating service cannot restrict access under the FOI Act if it would be available under the Mental Health Act.

It may be useful to note s. 6A of the FOI Act which states that the FOI Act does not affect the operation of any other law that enables a person to access a document. This means the Mental Health Act overrules the FOI Act whenever the two laws conflict.

The treating service may also attempt to make it a requirement for you to make a written request under the FOI Act before accessing information.

See Getting access to information and the clinical file in practice for more information.

Preliminary ‘non-disclosure’ hearing

The tribunal will normally decide whether to grant the application by conducting a brief preliminary hearing in the absence of the person themselves (but with the lawyer and service representative present). The lawyer may also have to give an undertaking not to disclose the source or details of the information to their client.

The tribunal will often ask if the information is something that the service needs to rely on in making their case. If not, the tribunal may also decide that the information itself is not relevant to the hearing before it. In this case the authorised psychiatrist will often withdraw the application and the tribunal will proceed with the hearing without either it or the person considering the withdrawn information in the file.

If the tribunal determines the threshold is met and grants the application and denies disclosure to the person, the tribunal has discretion whether or not it will proceed with the substantive hearing and whether it will look at that information in the hearing (s. 191(3)).

If it decides it would not cause serious harm, then it can order the mental health service give the person access to the information. In that case, it also has the power to adjourn the hearing for up to five business days and extend the order accordingly if necessary (s. 191(4)).

Practice tips

  • Pending determination of any non-disclosure application by the tribunal, the service will usually redact the particular information from the entries in the file, but must provide access to the remaining parts of the file.
  • Advise your client if an application for non-disclosure has been made and the risk they may not get to see that information. Obtain your clients instructions about opposing the application or otherwise, and making submissions on the tribunal’s exercise of discretion consistently with its procedural fairness obligations.

Submissions on breach of procedural fairness

  • Without the opportunity to rebut any allegations within or respond to information that has been withheld from your client under s. 191(3), it would arguably breach the right to procedural fairness and the fair hearing right under s. 24 of the Charter if the tribunal decided to exercise its discretion to look at that information. It is arguable that laws relating to compulsory treatment should be strictly interpreted in favour of the person affected by them, due to their restriction of personal freedom (for example, Wilson v Mental Health Review Board [2000] VSC 404; MM v Mental Health Review Board (1999) WASC 1005).
  • If a person is unable to have access to information that directly affects their interests (such as allegations of harm) and which is then relied upon by the tribunal, then there is a breach of procedural fairness. This point was considered by a Supreme Court case in Western Australia, which considered a decision of the mental health review board – in that case the board’s decision was quashed (EO v Mental Health Review Board [2000] WASC 203).

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Report on compulsory treatment

The Report on Compulsory Treatment is the report that the treating psychiatrist, together with the treating team, must prepare for a treatment order hearing (irrespective of how the hearing was initiated) (Mental Health Act Rules 2014, r. 14) and which summarises the treating team’s evidence as to why a treatment order should be made (r. 13), including:

  • the person’s personal and clinical background
  • why the psychiatrist believes the treatment criteria apply
  • why the person was put on a treatment order
  • what happened shortly before they were admitted to hospital or put on the treatment order
  • what mental illness the psychiatrist has diagnosed and the symptoms observed
  • the treatment being given and its effects on the symptoms
  • the treatment that the psychiatrist plans to provide in the future
  • why the psychiatrist thinks that treatment is needed and for how long
  • what the psychiatrist thinks would happen if the person did not get that treatment
  • the person’s views and preferences about treatment
  • whether the treatment can be obtained in the community
  • why the psychiatrist thinks the person cannot get the treatment voluntarily (and so needs to be on a treatment order to get that treatment)
  • the proposed duration of the order, and why.

The report should also include a person’s advance statement and any second psychiatric opinion (Mental Health Act Rules, r. 14).

Hearings regarding electroconvulsive treatment (ECT) require preparation of a specific report.

Practice tip

Check if your client has been given a copy of the report at least 48 hours prior to the hearing (s. 191(1)). A member of the treating team should have also explained to the person the contents of the report (with an interpreter if necessary), in accordance with section 8 of the Mental Health Act 2014 (Vic). For more information, see Access to information and the clinical file.

See also the Mental Health Tribunal: Downloadable template reports and instructions.

Going through the report with your client

It’s important your client understands what evidence the treating team are putting forward about each of the criteria, and the type and duration of the order sought, and that they have the opportunity to respond to what the treating team have said.

Practice tip

Your client may find this process difficult and distressing, particularly if they disagree with much of the contents of the report. Reassure your client that the report is only the treating team’s version of events, and they will have an opportunity to put forward their own version. You can also explain that you can assist them in doing this.

Try to elicit your client’s responses to the report, in particular their views about:

  • mental illness and the symptoms the psychiatrist says justify this conclusion
  • past issues or specific incidents in the report (including aggression or allegations of harm to themselves or others) when they occurred, in what context and why they are no longer a concern
  • allegations of non-compliance or relapse in the past and their explanation or context for what occurred
  • why the situation would be different now, and any protective factors that mitigate against the consequences becoming ‘serious’
  • the accuracy of the information and allegations in the report and the source of that information
  • the specific treatment(s) proposed and any other views and preferences about medication or other treatment
  • the plan the treating team have proposed for treatment follow up (consultation with the psychiatrist, appointments with a case manager)
  • any other relevant information that is not in the report.

For more detail about engaging with your client on each of the four criteria you can refer to the ‘Discussion points’ for each of the four treatment criteria. You can also get further information on the type and duration of the order to assist you to get relevant instructions for each of these issues.

Practice tips

  • Arrange to meet with your client once they have received a copy of the report on compulsory treatment so you can make sure you cover off the issues raised by the treating team.
  • Check whether your client has been given a copy of the report on compulsory treatment and had it explained to them (including with an interpreter, where required) at least 48 hours before to the hearing (ss. 191, 8).
  • If your client needs an interpreter, the clinic or hospital may be able to arrange an interpreter to attend your appointment. If not, ask them for a room with a phone that has a speaker phone function so you can call an interpreter.
  • You can request a copy of the report either from the client themselves directly, or from the person who co-ordinates the Mental Health Tribunal hearings at the hospital or community mental health service. You may need your client’s written authority for release of information to access the report and other information, such as their clinical file.

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What happens at a Mental Health Tribunal hearing

Hearings are to be conducted ‘as expeditiously and with as little formality and technicality as permitted by a proper consideration of the matters before it’ (s. 181(1)(d)). Given the private information being discussed, hearings are closed to the public. Generally, all of the participants sit around a large table – the three members of the tribunal, the person who is subject to compulsory treatment and their lawyer and/or advocate if they have one, representatives of the treating team, and any other support people the consumer wishes to attend. If the hearing is conducted by video conference, the tribunal members will be at a table in the Tribunal’s offices, while the other participants are at the hospital or service.

Prior to the hearing

The tribunal members will have spent some time immediately before the hearing reading through the available documents, which generally consist of:

  • the report prepared by the treating team at the community mental health service or hospital which summarises the team’s view of why the relevant criteria are met and what order they wish the tribunal to make (for example, community or inpatient order, duration of that order)
  • the person’s clinical file (or recent extracts from the file which have been sent to the tribunal, in the case of a video conference)
  • any other written information given to the tribunal for the hearing.

Read more about Getting access to information and the clinical file in practice.

At the hearing

The tribunal will consider both oral evidence presented by the parties and others, as well as written evidence such as the report prepared by the service and the person’s clinical file. There is no formal requirement about the order in which evidence is presented or submissions made. The tribunal members will take turns to ask questions of all participants. The lawyer will be given an opportunity to make submissions. The lawyer and the person themselves can also ask questions of the treating team. Although the hearing may be informal, the hearing must still involve thorough adducing and testing of the evidence.

Key issues in the hearing

Key issues in a treatment order hearing will include:

  • whether the four treatment criteria are all met
  • if all the criteria are met, which type of treatment order (community or inpatient) should be made
  • the duration of the order.

In making such decisions, the Mental Health Tribunal must have regard to each of the considerations in section 55(2), ‘to the extent that it is reasonable in the circumstances’, including the person’s views and preferences, the person’s advance statement and any nominated person’s views.

Practice tip

  • Revocation of an order requires a finding by the tribunal that any one (or more) of the four treatment criteria are not met.
  • There may also be jurisdictional issues. For example, there may be some defect in the assessment order or temporary treatment order documents, or the person’s order may have already expired. Some errors can be corrected by the tribunal under s. 361 but other cannot, such as errors that relate to 'mandatory requirements' of the Mental Health Act. If the tribunal determines that it does not have jurisdiction to determine the case, the order or documents containing the error will be considered invalid. This could mean that the client's order will fall away. In this case, there is a risk the treating team may take steps to make your client subject to compulsory treatment by making an assessment order following the hearing and this could delay your client being able to argue their case before the tribunal for up to another 28 days. You should try speaking with the authorised psychiatrist to reach an agreement that would allow your client to continue treatment, if required, without a treatment order.
  • The tribunal can hear and determine multiple matters for the one person (s. 190). For example, applications for compulsory electroconvulsive treatment (ECT) as well as for a treatment order can sometimes be heard together in one, longer hearing. In that case, the tribunal usually commences with the treatment order hearing before considering the ECT application.
  • Similarly, a person’s application for revocation of their (temporary) treatment order can be heard and decided at the same time as an automatic treatment order hearing or the service’s application for a treatment order.

For more information about preparing for and appearing at a hearing, including accessing documents, applications for non-disclosure and reviewing the clinical file, see Preparing for and appearing at a Mental Health Tribunal hearing.

The tribunal’s decision

Once evidence is concluded, all the participants will leave the room to enable the tribunal members to deliberate and make their decision. In the case of a video conference, the sound is muted and the screen blanked so the tribunal members cannot be seen.

The presiding member is the legal member, who must decide any questions of law (s. 196). Questions of law may also be referred by the tribunal to the Supreme Court (s. 197). Other questions that arise must be decided by a majority of members (s. 195).

The tribunal members will typically take around 10 minutes or so to make their decision.

The participants are then called back in so the tribunal can give its decision and any oral reasons. Each party receives a written copy of the tribunal’s order (s. 195), which also informs them of their right to request a written statement of reasons within 20 business days (s. 198) and to apply to VCAT for a merits review of the decision within 20 business days of either the hearing finishing, or the statement of reasons being given (s. 201).

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The Mental Health Tribunal and the Department of Health and Human Services websites also have useful information about Mental Health Tribunal hearings:

Who can attend the hearing

Hearings are closed to the public (s. 193) and the name and other details identifying a person who is the subject of a hearing before the tribunal cannot be published without the written consent of the president (s. 194).

The person who is the subject of the proceeding and their treating psychiatrist (the mental health service’s representative) are parties to the hearing. Other people may apply to be joined as a party, but this rarely occurs in practice. The tribunal decides this application.

The person has the right to appear and can be represented by anyone of their choosing, including a lawyer (s. 184(3)).

Other people who may attend the hearing as representatives of the mental health service include the person’s contact nurse (if they are in hospital) or their case manager. The consultant psychiatrist or other support workers can sometimes also attend.

Third parties attending at a hearing

Hearings are closed to the public and, while people such as family, carers and support people or a nominated person may be invited to participate, they do not have an automatic right to appear. Sometimes a person may have support people they wish to invite, or family members may have been contacted by the person’s treating team. At other times, the treating team may request medical or nursing students to attend.

The person’s consent should be sought before third parties are invited in to the hearing. In general, tribunal members are sensitive to fact the hearing involves significant and sensitive personal information. An advocate can help ensure that there is respect given to the wishes of the person about third parties attending the hearing.

Practice tips – support people your client wishes to invite

  • Prior to the hearing, seek your client’s instructions about whether they have a support person they wish to invite to the hearing. If so, seek your client’s instructions to speak with that person to ascertain whether and if so what evidence they are likely to give in support of your client. You may wish to refer to this evidence in your submissions or even consider leading evidence from them.
  • Your client may have other support people, or alternative, private practitioners, such as a GP or private psychiatrist, whom they want to attend, but who cannot. Consider discussing the issues with the clinician or requesting a brief letter of support which can be presented to the tribunal as evidence. It may be possible to arrange for the clinician to speak with the tribunal by phone during the hearing. See Evidence at a hearing.
  • The tribunal will usually ask if people attending the hearing wish to say anything however, generally speaking, they do not have to give evidence if they do not wish to.

Practice tips – third parties your client does not want to attend

  • Alternatively, seek your client’s instructions if there are third parties (such as family members or carers) whom they would prefer not to attend.
  • If third parties attend on the hearing day, ask your client how they feel about them attending the hearing. It’s best to do this when the third party is not present, so your client doesn’t feel pressured to agree.
  • Although the tribunal’s Guide to procedural fairness encourages family members and carers to participate in the hearing, you can often advocate for your client’s views to be respected.
  • If the family members or carers have been consulted by the treating team, their views will often be documented in the person’s file and summarised in the report. You can argue there is no need for them to attend the hearing.
  • You can suggest to the tribunal that if they need to hear the third party’s evidence, they only invite them in at the very end of the hearing.

More information

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You can also see more information about the tribunal’s guide to procedural fairness on the Mental Health Tribunal website.