What happens at a Mental Health Tribunal hearing

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).

More information

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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:

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