Standard and onus of proof

Standard and onus of proof

The onus of proof in Mental Health Tribunal hearings

There is no legal onus on either the mental health service or the person subject to the order to provide evidence to satisfy the Mental Health Tribunal that the relevant criteria are or are not met. This was confirmed by the Victorian Civil and Administrative Tribunal in WCH v Mental Health Tribunal (Human Rights) (Amended) [2016] VCAT 199 (23 February 2016).

Arguably however, a 'common sense approach to evidence' should be adopted as described by the Court of Appeal in NOM v DPP [2012] VSCA 198 at [83] and [90], such that where facts or information is ‘peculiarly within the knowledge of [the psychiatrist]’ then it is open to the tribunal to draw an ‘unfavourable inference' where the psychiatrist fails to provide sufficient evidence to support their case that the treatment criteria are met.

The Tribunal’s guide to procedural fairness (p. 15), also confirms that although it is inquisitorial, the tribunal does not ‘step into the shoes’ of the treating team and make the case for that team. As the tribunal stated in OJZ [2016] VMHT 2, ‘the onus is on the treating team to satisfy the tribunal that the treatment criteria under section 5 are established to its reasonable satisfaction’. Having regard to the evidence presented by the psychiatrist, it determined that, ‘given the gravity of encroaching on OJZ’s rights through ongoing compulsory treatment, the tribunal was not reasonably satisfied that OJZ has mental illness’ and therefore revoked the order.

Likewise, there is no requirement in the Mental Health Act 2014 (Vic) that a person who is challenging the order they are subject to must disprove the treatment criteria.

The standard of proof required

Given the consequences that flow from a tribunal decision to order compulsory treatment (whether making a treatment order, or authorising compulsory electroconvulsive treatment) include impingement on a person’s rights to liberty, it is appropriate to apply the civil standard of proof having regard to the principle articulated in Briginshaw v Briginshaw (1938) 60 CLR 336. As the Court of Appeal noted in the case of NOM v DPP [2012] VSCA 198: ‘the standard of proof must be responsive to the gravity of the facts in issue and the consequences of the ultimate decision’.

The ‘Briginshaw principle’ (as it is known) means the tribunal must be satisfied of the relevant matters on the balance of probabilities, to a comfortable degree, based on clear, cogent and strict evidence. VCAT in the case of WCH v Mental Health Tribunal (Human Rights) (Amended) [2016] VCAT 199 (23 February 2016) confirmed that the tribunal needs to consider the seriousness of the matter and the gravity of the consequences that flow from a particular finding when determining whether the matters in issue have been proven to its ‘reasonable satisfaction’. The tribunal noted that:

‘this state of satisfaction is not likely to be reached based on uncertain proofs or evidence or where findings are reached by drawing indirect inferences’.

In that case the tribunal found there was not sufficient evidence to be satisfied that the criteria in s. 5(a), (b) or (d) were met and accordingly revoked the community treatment order.

In the case of AXO [2015] VMHT 42 (12 March 2015), the tribunal confirmed that, in making findings, such as whether immediate treatment is needed to prevent serious harm to another person (s. 5(b)), ‘the more serious the allegation, the stronger the evidence needs to be’. Applying the Briginshaw principle, the tribunal said it ‘could find no probative evidence that AXO presented a risk to others, even if untreated’ and found section 5(b) was not met.

Practice tips – applying the standard of proof in tribunal hearings

  • If there is insufficient evidence to establish the treatment criteria are met, it should be submitted that the tribunal cannot make an order and should revoke the current order (s. 55(b)).
  • Likewise, if the evidence for the criteria for an order for ECT is uncertain or the tribunal is being asked to ‘draw indirect inferences’ in making its findings, then you can submit the standard of proof is not met and the application cannot be granted.
  • Referring to the standard and onus of proof requirements in submissions at the tribunal can be a useful tool when the service’s evidence is minimal or ambiguous. Outline why you think the evidence is not clear, cogent or compelling enough to enable the relevant matters to be proven to the reasonable satisfaction of the tribunal and why an order should not be made.

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