Procedural fairness

Procedural fairness

The Mental Health Tribunal is bound by the rules of procedural fairness (s. 181(1)(b)), which encompasses the ‘fair hearing’ rule and bias rule.

Fair hearing rule

All parties – in particular the person whose rights are affected by making of a compulsory order – must have access to relevant information and adverse allegations and have time to prepare a response to them. See Kioa v West [1985] 159 CLR 550 (18 December 1985).

Bias rule

The tribunal must make decisions impartially and free from actual or apprehended bias.

Importance of procedural fairness in mental health hearings

Procedural fairness is a significant issue in mental health law, given the serious impact that decisions about compulsory treatment can have upon a person’s rights. The right to actively participate and be heard at the hearing, and to respond to adverse information is also reflected in the mental health principles at section 11(1) subsections (c) and (d).

Giving the person access to information

The mental health service must also give the person ‘access to any documents in its possession’ in connection with the hearing at least 48 hours prior to the hearing (s. 191(1)). This includes being given a copy of the report prepared by the treating team, and offered access to their clinical file. For more information, see Access to information and the clinical file.

Practice tip – case example: weight of procedural fairness in urgent hearings

The tribunal in the case of IBA [2014] VMHT 57 (15 October 2014) highlighted the importance of procedural fairness in a hearing where the person sought more time to prepare their case and seek legal representation. The tribunal granted a short two-day adjournment, despite the treating team’s insistence on the urgency of the hearing and ECT application.

Practice tips

Be aware of when procedural fairness issues may arise, such as when:

  • the person’s application for revocation of an order was not listed for hearing as soon as practicable (s. 60(3)(a))
  • the person was not given adequate notice of the hearing – written notice must be given as soon as practicable (s. 189)
  • the person has not been given the report on compulsory treatment (or the relevant prescribed report) at least 48 hours prior to the hearing (s. 191)
  • the authorised psychiatrist has made an application to deny access to information on the person’s file (s. 191(2))
  • the person is unable to read the report (for example, they require an interpreter or are illiterate) and it has not been explained to them verbally by the treating team (s. 8)
  • the person has not been offered nor given access or adequate time to access their clinical file (s. 191)
  • the person was not given the opportunity to appear at the hearing (s. 184(1))
  • the person is seeking legal representation at a hearing (s. 184(3))
  • an interpreter has not been arranged for a hearing (s. 11(1)(g)), s. 185)
  • the person’s support person (such as a nominated person, (s. 23)) is unable to attend the hearing (s. 184(3))
  • there has been a previous professional relationship between a tribunal member and the person, or the member has previously been involved in tribunal decisions relating to the person.

In the appropriate circumstances, you can seek your client’s instructions about requesting an adjournment of the hearing (provided the client understands they would remain a compulsory patient in the interim), or arguing for revocation of the order. In the case of an ECT application, consider arguing the application should be dismissed or adjourned if the person cannot get a fair hearing.

More information

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Guides from the Mental Health Tribunal website: