After the hearing – advising on next steps

After the hearing – advising on next steps

Statements of reasons

A party to a proceeding before the Mental Health Tribunal has the right to apply for written reasons for the tribunal’s decision within 20 business days of the decision, although the tribunal has discretion to accept requests after that time. The request for reasons must be in writing (s. 198).

The tribunal must then provide a written statement of reasons to all parties within 20 business days of receiving the request (s. 198(4)). Section 199 provides for correction of orders and statements of reasons in certain circumstances, such as a clerical mistake.

Practice tips – requesting statements of reasons

  • You should advise your client of their right to request a statement of reasons. You can email, fax or write to the tribunal to make the request on your client’s behalf. If reasons are requested, then the client should be advised that a copy of those reasons will go on their clinical file and can be read by anyone with access to it.
  • Even if the tribunal makes a decision the person is not happy with, a request for reasons could be considered if the tribunal has made helpful comments, for example about discharge planning, or if the treating team has made particular commitments or concessions that are important to the client. Such reasons can be useful in any ongoing negotiations with the person’s treating team.

Rights to ‘appeal’

If the person is unhappy with the outcome of their hearing, they have two main options open for challenging the decision – either apply for another tribunal hearing, or appeal to the Victorian Civil and Administrative Tribunal (VCAT).

Application to the Mental Health Tribunal

A person can apply to the tribunal at any time for their order to be revoked (s. 60). This constitutes a fresh hearing and the person can ask for the help of their nurse or case manager in making the application.

For more detailed information, see Challenging a (temporary) treatment order.

Practice tip

If your client applies again to the tribunal, they can request that different members sit on the tribunal that decides their case.

VCAT appeal

Section 201 states that a person involved in the decision may apply for a merits review at VCAT within 20 business days of either the decision having been made, or the statement of reasons being received (if one is requested).

Practice tips

  • It can take some time between the application being made and the hearing being listed at VCAT. By that time the person’s circumstances may have changed, for example, they may have been discharged from hospital.
  • As it is a merits review, VCAT will assess the treatment criteria and other issues based on the person’s circumstances at the time of the hearing.
  • The person is likely to have a hearing more quickly if they apply again to the Mental Health Tribunal, compared with VCAT. This may affect your assessment of merit in a VCAT appeal.
  • You should advise your client as best you can about their likely chances of succeeding on appeal to VCAT. You may only be able to make such an assessment after having received and reviewed the tribunal’s statement of reasons for its decision or reviewing the evidence and your client’s circumstances at the time of a new hearing.

More information

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