Hearings at the tribunal – listing and procedures

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.

More information

Read more about:

Was this helpful?