Preparing for and appearing at a Mental Health Tribunal hearing

The focus here is on preparing for and appearing at a treatment order hearing however many of the general provisions will also be applicable to other hearings such as for electroconvulsive treatment (ECT).

You should try to meet your client at least the day prior to the hearing to enable you to take instructions, access and review information such as the service’s report and the clinical file and obtain any further evidence to support their case (such as from support people or private clinicians or a GP if possible).

Explaining your role and the scope of legal assistance

You should clearly advise your client of the nature of your role as their lawyer, including that you act on their instructions and keep information confidential. You should also advise if your service is free of charge, or if there will be a cost.

It is important to explain to your client the scope of the legal assistance you can provide, including whether it is limited to advice and representation before the Mental Health Tribunal, or whether you can also assist them with other areas of law. Be alert to whether the client needs a referral for other legal matters (criminal, tenancy, family law), or would benefit from a referral to the Independent Mental Health Advocacy or the Mental Health Complaints Commissioner.

Explaining the tribunal process

It is also helpful to clarify for your client the role of the tribunal, the criteria it must apply and the factors it must consider, and the limits on the issues it can formally decide upon, depending on whether the hearing relates to a treatment order or electroconvulsive treatment (ECT).

Obtaining your client’s instructions

Before the hearing you should try to get detailed instructions from your client to enable you to understand what it is they want to achieve and their views on the key criteria and factors the tribunal must apply.

You may wish to start by getting a general sense of your client’s situation and their views and preferences around treatment including:

  • how they feel about their mental health and their diagnosis, and any treatment they’ve had in the past
  • any particular concerns about or preferences for treatment and the way they are treated now
  • which parts of their treatment or the way they are being treated do they find most restrictive and how could that be improved or ceased altogether.

When discussing views about treatment, generally it is very important to make clear that the tribunal cannot make orders changing treatment, but those issues may be relevant to whether they need an order or not.

Taking your client through each of the treatment criteria, reviewing with them the Report on compulsory treatment and eliciting their response to the evidence and assertions by the treating team (in the report) is key to preparing your case. Read more about Evidence at a hearing and the four treatment criteria, including tips on what information to draw out and evidence to look for.

Practice tips

  • Other issues such as your client’s plans and goals and life beyond treatment and the involvement of mental health services can help you get a sense of who they are, what is important to them and the reasons for their views and preferences. These are relevant to the factors the tribunal must consider in accordance with s. 55(2) and s. 11(1)(c) and 11(3).
  • If your client is in hospital, finding out whether their medications are still being titrated, whether they have had any leave from hospital, their plans for accommodation once they are discharged, and who are their main support people in the community will be relevant to any arguments about community versus inpatient treatment and the length of any order if one is made (even though these aren’t issues the tribunal can decide upon in their own right).

Read more about Getting instructions from your client.

Preparing and advising your client

Explain to your client the usual process for a hearing, and how evidence will likely be given – orally and/or in writing. For some clients, appearing before the tribunal can be a daunting, confusing and at times frustrating experience.

Provide your client with advice about the key issues in their case, the kind of evidence the tribunal will be interested to hear and the strengths and weaknesses of their case and your advice about likely outcomes.

Practice tips

  • The reality is that much of the evidence required to be considered by the tribunal will be held by the mental health service. Remind your client that even though the treating team may give evidence that they disagree with, it is only the service’s view of the situation and they will have the opportunity to put forward their own view and challenge the conclusions of their treating team.
  • Depending on your client’s situation, you may need to clarify how they prefer to give evidence, for example, whether they would feel more comfortable giving evidence before the service, or afterwards. Read more about Evidence at a hearing including eliciting evidence from your client.

Preparing your case and making submissions

Clarifying your client’s instructions on the relevant criteria and the outcome they seek to achieve and any alternative proposals, will guide your preparation and the submissions you make.

See Evidence at a hearing and Preparing your case and legal submissions.

More information

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Aboriginal and Torres Strait Islander clients

The principles

Anyone carrying out a duty or function under the Act in relation to an Aboriginal and Torres Strait Islander client should ensure that the person’s distinct culture and identity are recognised and responded to (s. 11(1)(h)).

The mental health a​nd wellbeing of Aboriginal and Torres Strait Islander Australians

The most recent report measuring the wellbeing of Aboriginal and Torres Strait Islander Australians, Overcoming Indigenous Disadvantage: Key Indicators 2016 (released 17 November 2016) shows a high prevalence of mental health issues in the Aboriginal community. The report states:

The proportion of Aboriginal and Torres Strait Islander adults who reported high/very high levels of psychological distress increased from 27 per cent in 2004–05 to 33 per cent in 2014–15.

After adjusting for population age structures, the proportion of Aboriginal and Torres Strait Islander adults experiencing high/very high psychological distress in 2014–15 was almost three times the proportion for non Indigenous adults [8.7].

The report also notes that ‘mental health issues are affected by a complex range of medical issues, historical factors, the stressors associated with entrenched disadvantage and drug and substance misuse’ [8]. Issues around stolen generation, intergenerational trauma and racism impact on mental health and wellbeing in the Aboriginal and Torres Strait Islander community.

Victoria’s Aboriginal health strategy 2012–2022, titled Koolin Balit, aims to improve Aboriginal health in Victoria. It acknowledges that the Aboriginal definition of health is broad and inclusive and highlights the fact that ‘the creation of a culturally responsive environment in hospitals to ensure they provide high-quality care that Aboriginal people are willing to access … cannot be done without also … working with local Aboriginal communities and other non-health players, such as social and family support services, to ensure all service providers understand the importance and value of being culturally responsive.’

Koolin Balit also states:

The department encourages culturally based social and emotional wellbeing services and interventions, developed and delivered by Aboriginal organisations in partnership with local mental health services with the aim of promoting self-determination, intervening earlier to optimise recovery outcomes and more effectively engaging Aboriginal people in mainstream mental health and social support services.

The strategy outlines principles for work in Aboriginal health, and the features of high-quality health services for Aboriginal people. It also highlights the importance of Aboriginal community-controlled health organisations, including expertise and understanding of the Aboriginal community and family networks.

Social and emotional wellbeing workers at Aboriginal health services can be another source of support for an Aboriginal client.

Admission to hospital

Check how your client came to be admitted. If they live in remote and/or regional Victoria, it may have taken some time to bring them to hospital, possibly in a police divisional van. This would likely have had an adverse impact on their presentation when they were assessed by the psychiatrist for the temporary treatment order.

The treatment criteria

Mental illness – section 5(a)

Physical and chronic health issues can manifest in ways which may be interpreted incorrectly as the person presenting with mental illness. Symptoms of hypoglycaemia (low blood sugar levels) are similar to symptoms of mental ill health and may account for unusual or out of character behaviour in your client. For example nervousness, sweating, behaving irrationally or trembling like someone affected by alcohol. This may impact on whether your client presents as having mental illness.

The second leading cause of death for Aboriginal Australians is endocrine disease. The endocrine system influences how your heart beats and how your bones and tissues grow. It plays a vital role in whether or not you develop diabetes, thyroid disease, growth disorders, sexual dysfunction, and a host of other hormone-related disorders.

These issues are also important to consider in determining whether treatment will be provided under section 5(c). That is, side effects of particular medication may have a greater impact on an Aboriginal person who is more likely than most to have trouble with their kidney or liver.

Practice tips

  • Ask your client if they have diabetes. If they don’t, ask if they have had a thorough medical check during this admission and check their clinical file for further details.
  • Your client’s treatment for their mental illness may not interfere with their cultural beliefs. On the other hand, the cultural practices of a community from a particular region may, when relayed by an individual to a mental health professional, cause unwarranted concern. Check to see if the client considers any topics to be ‘off limits’. If a person can’t talk about particular topics, this may be because of cultural sensitivity and is not necessarily a sign of mental illness. You should critically assess whether any of the 'symptoms' alleged fall into this category.

Provision of treatment (section 5(c)) and less restrictive treatment (section 5(d))

A person's literacy may have a bearing on whether they can or have received treatment, It may also provide context for past 'non compliance'.

Practice tips

  • Tactfully check with your client whether they may have literacy issues. For example, ask questions such as 'do you find it easy to read those tiny instructions on medication packets?'
  • Check if anyone ever explained to them when to take what medication or what each medication is for
  • Check if anyone has ever explained to them what a Webster pack is
  • Ask if they would be willing to have someone from the co-op attend daily to check their compliance, or drive them to the Aboriginal Health Service to get treatment.

In November 2014, Closing the Gap Clearinghouse released a document entitled Effective strategies to strengthen the mental health and wellbeing of Aboriginal and Torres Strait Islander People. It provides an evidence based discussion of factors that influence the effective development, implementation and outcomes of initiatives to address Aboriginal and Torres Strait Islander mental health and wellbeing issues.

P​ractice tip

Source this document and ask the treating team and the tribunal members if they have read it and how they have implemented it. If they haven’t, you can argue that the client would benefit from receiving their treatment through an Aboriginal specific service that understands the best practice in Aboriginal health.

Koori mental health services

  • St Vincent’s Hospital has five specialist beds for Aboriginal people from across Victoria, which is jointly managed by the Victorian Aboriginal Health Service Family Counselling Service.
  • Rural/regional areas have Koori mental health liaison officers whose aim is to improve access and the cultural appropriateness of services provided to Aboriginal people
  • Koori mental health project for young people – an initiative of Royal Children’s Hospital developed in consultation with the Koori Kids Mental Health Network and the Koori Adolescent Mental Health Unit of the Victorian Aboriginal Health Service.

Practice tips

  • Ask your client what it means to them to identify as Aboriginal or Torres Strait Islander
  • Ask if they would like to have Aboriginal specific services involved in their treatment and recovery
  • Ask if they would like the Aboriginal Liaison Officer from the hospital to visit them and liaise with the treating team on their behalf
  • Check with your client if they’re comfortable meeting with you alone, if they’d prefer to have someone else there, or if they'd prefer to sit side by side rather than face to face

At the Hearing

Practice tips

  • Consider cross-examining the treating team on how they have recognised and responded to your client’s distinct Aboriginal or Torres Strait Islander identity and cultural needs. It may be helpful to refer to relevant clinical guidelines if relevant for your client’s situation.
  • Ask if anyone on the treating team or tribunal has undergone cultural awareness training and/or liaised with the Aboriginal Liaison Officer at the hospital

Application of the Charter of Human Rights

It is clear from its Preamble that the Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic) (the charter) intended to reflect the need for specific rights for Aboriginal persons in Victoria:

'This charter is founded on the following principles … human rights have a special importance for the Aboriginal people of Victoria, as descendants of Australia’s first people, with their diverse spiritual, social, cultural and economic relationship with their traditional lands and waters.'

The charter at section 19 gives general expression to Indigenous cultural rights. In particular it states 'Aboriginal persons hold distinct cultural rights and must not be denied the right, with other members of their community:

  1. to enjoy their identity and culture
  2. to maintain and use their language
  3. to maintain their kinship ties
  4. to maintain their distinctive spiritual, material and economic relationship with the land and waters and other resources with which they have a connection under traditional laws and customs.'

This appears to also reflect Article 25 of the United Nations Draft Declaration on Indigenous Rights.

In addition to s. 19, access to culturally appropriate services and the ability to practise culture while in a locked environment invokes a number of charter provisions:

  • s. 8 – recognition and equality before the law
  • s. 12 – freedom of movement
  • s. 13 – right to privacy and reputation (cultural practices are included in the concept of privacy and personal autonomy).

Rights of other people, including children, are also engaged whenever a child is separated from their parent upon entering a locked environment. When a lack of access to services compromises an Aboriginal person’s ability to provide effective ongoing care for their child, the protection of the child’s best interests is also at risk. Therefore, the charter requires the tribunal to think about the best interests of the child and protection of families (although to an extent this is covered by s. 11(1)(i) and (j)).

It may be argued that section 8(4) of the charter makes clear that particular measures may be taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination and that this in itself does not constitute discrimination. This provides recognition that to achieve equality, Aboriginal inpatients need to be treated differently in light of the historical disadvantage that makes Aboriginal people susceptible to mental ill health.

More information

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Related website​s

For more information about the leading causes of death for Aboriginal and Torres Strait Islanders peoples, see the Australian Bureau of Statistics website.

Read the following information on the Australian Indigenous HealthInfoNet website:

For an overview of the health and wellbeing of Aboriginal and Torres Strait Islander peoples on the Australian Institute of Health and Welfare website.

Read the report measuring the wellbeing of Aboriginal and Torres Strait Islander Australians Overcoming Indigenous Disadvantage: Key Indicators 2016 (released 17 November 2016) on the Australian Government Productivity Commission website.

Read Victoria’s Aboriginal health strategy 2012–2022 Koolin Balit​ on the Department of Health and Human Services website.

Read more information about hypoglycaemia and endocrine disease on the Health Direct website.

Read Aboriginal and Torres Strait Islander mental health: Principles and guidelines (July 2014) and Aboriginal and Torres Strait Islander mental health workers (August 2016) on the Royal Australian and New Zealand College of Psychiatrists website.

Evidence at a hearing

The Mental Health Tribunal will consider written evidence (from the report and the person’s clinical file) and oral evidence (from the service and the person themselves and anyone else who is present.

A thorough review of the evidence likely to be presented by the service will enable you to prepare your case most effectively. See Access to information and the clinical file and Report on compulsory treatment.

Eliciting evidence

Evidence from your client

Your client will need to speak at some point during the hearing – this can happen in a few different ways, including talking freely to the tribunal, responding to questions from you or being led by you, or being questioned by the tribunal.

For some clients, appearing before the tribunal can be a daunting experience. Remember that a person’s views can change and it’s important to clarify your client’s views and the evidence they’re likely to give on the day of the hearing as your instructions can sometimes change from the day before.

Practice tips

You can play an important role in facilitating your client’s participation in the hearing in a way that suits them best and is most persuasive for the tribunal. For example:

  • Before the hearing, ask them how they would prefer to give evidence, for example giving the opportunity to speak first, or speak after you have summarised or at least introduced your case and the key issues.
  • Give your client an indication of the kinds of questions the tribunal, or you yourself, will want to ask in the hearing, so they can think about their responses.
  • Getting the client to write down what they want to say before the hearing can be helpful (e.g. You can offer them, or take them through Victoria Legal Aid’s brochure Going to a Mental Health Tribunal hearing).
  • Making an opening statement on behalf of your client and what they want to achieve can give some clients more confidence to later address the tribunal directly.
  • Leading evidence from your client can allow you to control the way in which the evidence comes out.
  • Evidence given directly by your client about their own experience, views and preferences and in particular their plans for treatment and rationale for that, is usually more persuasive than any statement or submission you can make on their behalf.
  • Being responsive to your client and to what unfolds at the hearing enables you to best advocate on their behalf. You may seek to ask follow-up questions of your client in order to clarify what they meant or draw out issues that may have been overlooked, or seek a useful rebuttal of an inaccurate or misleading statement by the treating team.
  • While you are asking questions, note any relevant answers to which you can refer to in closing submissions.

Evidence from the treating team

Representatives of the treating team will present evidence about why a treatment order should be made and the type and duration of the order they seek. This evidence may be given by the person’s psychiatrist, psychiatric registrar, case manager and/or nurse. During the hearing, you will have the opportunity to question the representatives of the service. Use this opportunity to test the service’s case and elicit evidence that will support your case, but don’t feel you have to cross-examine the treating team merely for the sake of doing so.

Practice tip

It can sometimes be helpful to clarify with the psychiatrist the service’s plan for treatment on the day of the hearing, so as to avoid being surprised by evidence which is given at the hearing. This can be particularly important where the report has very little detail or has been prepared some time before the hearing. Remember, a person’s presentation and circumstances can change from day to day in an acute inpatient environment.

Key issues to draw out

Depending on your case theory, based on your client’s instructions, you may seek to use cross-examination to draw out some of the following:

  • Concessions that assertions in the report are incorrect or inconsistent with file notes or other evidence.
  • Highlighting where allegations against your client are vague, historical or non-specific assertions regarding aggression, violence or harm towards others or non-compliance with treatment.
  • Querying whether past incidents/harms actually occurred because of the person’s mental illness (as opposed to other factors such as substance use).
  • How likely is any alleged harm or deterioration to occur, how quickly and how serious would it become, and other interventions that may prevent such consequences actually occurring or at least mitigate against them being serious.
  • Clarification of whether a particular medication or intervention is actually necessary to manage a relevant risk.
  • Clarification of whether a particular intervention has the effect of remedying the illness or alleviating the symptoms demonstrating (where appropriate).
  • That the client is (now) compliant with and accepting of treatment, which is available and could occur/be provided in the community.
  • Confirmation of the range of supports that would/could be provided by the community mental health team and that these are available even if no order is in place (including to ensure compliance and detect any relapse early).
  • Clarification of whether detention is actually necessary to ensure compliance with treatment (for example, by reference to the client’s recent history of engagements with the service and compliance with leave from hospital).
  • Clarification or whether the treating team is seeking the order to provide some sort of optimum or best practice treatment, rather than treatment necessary to prevent serious risk.
  • Showing that there is no principled basis for requesting an order of maximum duration.

For a more detailed list of the issues relevant to each of the treatment criteria and the type and duration of orders, see the discussion points outlined in Treatment criteria.

Practice tips – cross-examination

  • Speak up if the tribunal doesn’t invite you to ask questions of the service’s representative.
  • Don’t be aggressive or accusatory in your approach. Remain polite and adopt a conversational, open demeanour.
  • Avoid longwinded questions.
  • As a general rule, don’t ask questions you don’t know the answers to, unless you could make any answer fit into your case theory.
  • If the person giving evidence is going off-topic with open questions or giving longwinded answers, revert to closed, yes/no questions and consider pressing them politely if they do not answer the question or give a vague answer.
  • If the service gives an answer that you don’t expect, you will need to make a judgement call about whether to move on or whether to put inconsistent or contradictory information to them and ask them to comment and/or concede that they may be mistaken (such as contemporaneous file notes, or evidence of the client or family members).
  • If the service representative gives vague or non-specific evidence, invite them to point to file entries that support their assertion (provided you have reviewed the file and are reasonably confident there is nothing in there).
  • When you get the answer you want, move on. Don’t push your luck or linger on the topic or they may try to backtrack.
  • Don’t try to get the service representative to concede the ultimate issue (that the treatment criteria aren’t satisfied).

Evidence from other sources

If your client has support people present at the hearing, you can elicit evidence from them about the kind of support they can provide to your client. For example, subject to your client’s instructions, you can ask for confirmation of the person’s willingness to supervise medications or support them in ways to ensure they stay well or any signs of relapse are picked up and acted upon early. Support people can also help to:

  • provide evidence of, for example the availability of:
    • support at home
    • supervision of medication or likely liaison with the treating team if concerns arise
    • support for less restrictive treatments or less restrictive interventions to manage risk
    • accommodation.
  • corroborate your client’s compliance history or voluntary treatment
  • clarify the circumstances surrounding admission to hospital
  • contextualise allegations of harm, or
  • cast doubt on the seriousness of relapse or other consequences of changing or ceasing treatment.

Less restrictive alternatives can also be supported by other documentary evidence from other third parties, such as a letter of support from a private treating psychiatrist or GP attesting to the scope and nature of the treatment they could provide if a person was out of hospital or off their order. Such evidence can be invaluable in support of a less restrictive alternative to compulsory treatment.

Practice tips – obtaining collateral evidence in support

  • Seek your client’s consent to contact the support person and ascertain what support they can provide to your client, including the nature and scope of any alternative treatment they have provided in the past and could provide again.
  • Ask the person if they can send you an email or letter to put before the tribunal confirming what they have told you, or even attend the hearing to give evidence. It is also possible to ask the tribunal to phone witnesses if they cannot attend.

See also Who can attend the hearing for information about who can participate in a hearing, including third parties.

Evaluate the evidence and give your client frank, practical advice

Be realistic when advising your client about the likely chances of particular arguments being accepted by the tribunal. Be mindful to manage any expectations your client may have.

Explain your view of the most effective way to present the case, what aspects you propose to focus on in legal submissions (which may have the best chance of obtaining the outcome they want) and which arguments you believe are not as strong. Seek their consent to your proposal.

For example, if your client disputes having a mental illness you can recommend seeking a second psychiatric opinion and explain the difficulty in ‘winning’ that criterion without supporting medical evidence. If your client feels strongly they want that argument put, consider the option of mentioning this briefly during the hearing, before moving on to other submissions.

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Preparing your case and legal submissions

Once you have your client’s instructions about what they hope to achieve (including alternatives they may accept) you can use the evidence you have gathered and reviewed to prepare a case theory. Consider the relevant strengths of arguing against each of the treatment criteria, the making of a community rather than an inpatient treatment order, and the length of any such order.

Explain to your client which arguments you propose to focus upon and why. Discuss with them possible alternatives if they do not achieve the desired outcome, and the strengths and weaknesses of each. For example, if the tribunal is likely to find sufficient evidence to make an order, a community treatment order may be preferable to an inpatient order, and similarly a shorter order preferable to a longer or maximum-length order. Seek your client’s consent to the submissions you propose to make.

Practice tips – developing your submissions

Ultimately, crafting and developing submissions involve a judgement in each case, but the following tips may be helpful to consider:

  • You may find it helpful to prepare a chronology, or a written summary of the key issues and evidence from various sources for each point.
  • Consider the most succinct way of explaining the essence of your case to the Mental Health Tribunal and how you will capture the evidence which may emerge during the hearing – from your client or the treating team or otherwise – which can support your case or which you may need to rebut.
  • Focusing on two or three key issues can sometimes be more effective than taking a scattergun approach or trying to run every possible argument, particularly given hearings are usually allocated one hour each in total.
  • If your client’s main concern is leaving hospital, seek instructions to advocate for the making of a community rather than an inpatient order, or a shorter inpatient order, for example if the order is not likely to be revoked outright.
  • The most logical and compelling order in which to present the arguments to the tribunal will not always be to address the criteria sequentially. Sometimes it can be helpful to start with your submission on criterion 5(d) for example and work your way back if you need to.

Whether to provide written submissions

Having identified the key issues you will be focusing on during the hearing, consider whether to provide the relevant parts of the legal submissions, or an outline of submissions, to the tribunal.

Written submissions can be very effective if, for example, the legal issues are complex or novel. These should be focused and tailored to the client and encompass the facts and evidentiary issues on each issue.

If the file has consistent positive reports, or shows strong improvement from a particular date (compliant with medications, pleasant and polite, no overt psychosis evident, etc.) consider making a table that demonstrates these entries and the dates. Positive mental state examinations and psychiatrist reviews are particularly helpful.

If you do provide written submissions, in accordance with the tribunal’s complex case management procedure, email these to the tribunal as early as possible. If your submissions are particularly lengthy and are only provided at the time of the hearing itself, there is a risk the tribunal may adjourn the hearing.

Practice tip

There is a risk in providing written submissions to the tribunal where the evidence is uncertain, or there is any chance your client’s instructions or circumstances will change by the time of the hearing. Being ‘locked in’ by written submissions can impact upon the credibility of your submissions and potentially your client’s evidence at the hearing itself. Even if you do not ultimately give written submissions to the tribunal, having your submissions prepared in writing can help you during the hearing, and you can refer to them if necessary.

Reading them through to your client before the hearing is also a very useful way to confirm instructions and make alterations if necessary. Written submissions can also be useful in the event of an appeal.

See Evidence at a hearing.

Making submissions at the hearing

If (consistent with your instructions), you intend to dispute only one or two of the treatment criteria, it is helpful to be clear about this from the outset and focus your submissions to the Mental Health Tribunal on these points.

It’s important, however, to act on and be consistent with your client’s instructions and what they identify as the important issues for them. For example, if the client disputes having an illness or requiring any treatment, you should make clear at the outset that your client submits that none of the criteria are met, but you can say that your arguments will focus on a specific criterion or criteria.

Practice tips – relevant criteria and principles

  • Remember, since the treatment criteria are essentially considered by the tribunal sequentially, even if you are focusing on one criterion, you may need to address additional criteria to narrow the scope on which you concede they are met. For example, you may be arguing that s. 5(d) is not met because your client can get treatment voluntarily, but you may concede that section 5(b) is met based on the need for immediate treatment to prevent serious deterioration in your client’s mental health, but not to prevent serious harm to others. Emphasise that all four criteria must be met for an order to be made.
  • Your submissions should address the law, the evidence and the specific circumstances of your client’s case, as well as any relevant mental health principles, the application of which should support the conclusions you ask the tribunal to reach.
  • Consider whether to draw the tribunal’s attention to specific evidence in support of each of your arguments, for example file notes, and when to highlight the absence of cogent evidence from the service in relation to their case.

Opening and closing submissions

At the very commencement of the hearing, you should highlight any jurisdictional issues or non-compliance with requirements under the Mental Health Act 2014 (Vic), such as to provide access to information and the clinical file and procedural fairness.

Beyond this, in relation to substantive issues, there is no right or wrong approach to when to make submissions – whether at the beginning of the hearing, at the conclusion, or both. Some tribunal members have a preference for the conduct of hearings and timing of submissions. For example, some may invite you to make opening submissions before hearing evidence from your client or the treating team, and others may ask questions directly of your client before you have a chance to make any opening submissions. Experiment and find out which approach is most effective with your style of advocacy and your local tribunal members.

You do not have to be limited by what the tribunal invites you to do – if you prefer to make your submissions in closing rather than at the start of the hearing, tell the tribunal that this is what you will be doing.

Practice tips – opening and closing submissions

You are not limited to necessarily choosing one type of submission or the other, however consider the following:

  • Opening submissions – can enable you to paint a picture for the tribunal at the outset, which can frame their reading of the evidence or focus them on what you identify as the key issues. Raise any jurisdictional issues here at the outset. You often have more time, rather than being rushed at the end of a hearing, but be mindful of ‘locking in’ submissions when the evidence may change – clients and others may give evidence you are not expecting. You may wish to signal any alternative submissions at the outset, then provide further details in closing.
  • Closing submissions – can be tailored to the specific evidence which came out at the hearing itself and can be useful as an addendum to initial opening submissions, including to flesh out alternative submissions if the tribunal doesn’t appear to agree with your primary submissions (for example, if the tribunal will not revoke, then you urge it to make a community rather than inpatient order). Closing can be a useful time to highlight relevant case law, offer previous Statements of Reasons from the tribunal, or make Charter of Human Rights and Responsibilities arguments. Make sure you have enough copies of relevant documents for the tribunal and a copy for the treating team.
  • Don't underestimate the importance – depending on the level of engagement by the members, closing arguments can leave them with your points reinforced in their mind immediately before deliberating. However, it may appear that a tribunal member has already made up their mind by the closing of evidence. Depending on time, you may need to assert yourself to make closing submissions, particularly if the hearing is running over or is close to time.
  • Flexibility – allowing a degree of flexibility can enable you to be responsive to any changes in your client’s instructions and the evidence in the hearing. You should be prepared to jettison arguments that have become unsustainable during the course of the evidence.

Communication in the hearing

Be mindful of using language in the hearing that your client is able to understand, in particular when asking them specific questions. If using an interpreter, you will need to pause between sentences to allow time for the interpreter to finish interpreting. Be sensitive to your client’s level of engagement or alertness in the hearing or if they are likely to get distressed by the use of certain language or lines of questioning. Be alert to hearing difficulties or comprehension issues, especially when representing someone who speaks English as a second language and does not have an interpreter.

Make eye contact with the tribunal members when making your submissions and be mindful of holding their attention. Give them time to finish writing their notes before moving on to your next point.

Use of precedents and authorities

Past Mental Health Review Board or Mental Health Tribunal decisions can be useful to guide the tribunal as to legal or interpretive issues. However, care should be taken with factual comparisons as each case will turn on its unique facts.

Decisions of the mental health review board and the tribunal are not binding; decisions of VCAT are not binding but will be influential.

Practice tip

De-identified decisions of the former board, the tribunal and VCAT are all available (and searchable) on the Austlii website. See also Treatment criteria for summaries of some relevant tribunal decisions.

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