Access to information and the clinical file

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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