Decision-making framework – key principles

Decision-making framework – key principles

The Mental Health Tribunal is independent of mental health services. It is not bound by the rules of evidence (s. 181(1)(a)) and may inform itself on any matter it sees fit (s. 181(1)(c)). However it must also follow rules of procedural fairness (s. 181(1)(b)) and make decisions about the standard and onus of proof. The tribunal must also have regard to the mental health principles (s. 11) including when listing and conducting hearings and determining applications. It also has obligations under the Victorian Charter of Human Rights and Responsibilities 2006 (Vic) (the Charter).

Primary decision-maker and inquisitorial model

The tribunal operates with an inquisitorial rather than adversarial model. As a primary decision-maker under the Act, the tribunal can only make an order if it is ‘satisfied’ that the relevant criteria are met, having had regard to any prescribed factors, rigorously assessed the evidence and applied the mental health principles at section 11.

Practice tips

  • Encourage the tribunal to draw its own conclusions on the evidence, after making appropriate enquiries including (in the case of a treatment order hearing) whether all four treatment criteria apply, considering the person’s views and preferences about treatment and whether they can be treated without needing to be detained in hospital.
  • Use these principles to bolster arguments that the relevant criteria are not met, where there is insufficient, vague or inconclusive evidence or the person has not had sufficient time to prepare for their hearing.
  • See more detailed information about procedural fairness and the standard and onus of proof.

Obligations under the Victorian Charter of Human Rights

Under the Charter, the tribunal must:

  • interpret the provisions of the Mental Health Act 2014 (Vic) consistently with human rights protected under the Charter ‘so far as it is possible to do so consistently with their purpose’ (s. 32 of the Charter), and
  • act compatibly with human rights and give proper consideration to relevant human rights (s. 38 and s. 6(2)(b)), including the right to a fair hearing (s. 24 of the Charter).

The decision of Kracke v Mental Health Review Board & Ors (General) [2009] VCAT 646 (23 April 2009) confirmed that the Mental Health Review Board and VCAT act in an administrative capacity when reviewing involuntary treatment orders and therefore act as public authorities. Similarly, the Mental Health Tribunal would be regarded as a public authority when deciding on treatment orders, applications for ​electroconvulsive treatment (ECT) and so on.

Practice tips – using the Charter at the tribunal

The framework of the Charter does not enable a person to bring a stand-alone cause of action for breach of Charter obligations. It can, however, be a useful tool for lawyers to use to bolster arguments at the tribunal (such as for the interpretation of the treatment criteria and application of procedural fairness in light of the fair hearing right at s. 24).

Examples of human rights affected by compulsory treatment and other restrictive interventions:

  • Compulsory treatment restricts a person’s right to make decisions about their own medical treatment and freedom from treatment without full free and informed consent (s. 10(c) of the Charter).
  • Treatment, including for example with fortnightly injections of antipsychotic medication, or with ECT – particularly if given against the person’s wishes – can interfere with their right to privacy and bodily integrity (s. 13).
  • Being forced to attend clinical and case management appointments and attend a mental health service for treatment can interfere with a person’s freedom of movement (s. 12).
  • Being detained in a psychiatric unit to get treatment will also engage their right to liberty (s. 21).
  • If a person is physically restrained or placed in seclusion their rights to be free from cruel, inhuman or degrading treatment (s. 10(b)) and to humane treatment when deprived of liberty (s. 22) may be engaged.
  • Inpatient treatment that restricts cultural practice may engage s. 19, that protects the right, in a community with other persons of that background, to enjoy culture, practice religion or speak one's language.

Whether the restriction on the person’s human rights is unlawful or a breach of the Charter will require analysis of the necessity, reasonableness, proportionality and justification of the restriction in accordance with section 7 of the Charter and any internal limitations on the particular right (such as the right to privacy – not to have one’s privacy arbitrarily interfered with (s. 13)).

Section 7 states that a human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom. There is also a weighing exercise to be conducted regarding the nature of the right to be limited, the importance, the nature and extent of the limitation, the relationship between the limitation and its purpose and any less restrictive means reasonably available to achieve the purpose.

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