What have you got to prove? Tips about giving evidence at the Mental Health Tribunal

What have you got to prove? Tips about giving evidence at the Mental Health Tribunal

Lawyers representing consumers before the Mental Health Tribunal sometimes refer to the ‘standard of proof’ or the ‘Briginshaw principle’. 

To many clinicians, these terms may be confusing, and it may be unclear how they are applied to Mental Health Tribunal hearings.

The Victorian Civil and Administrative Tribunal (VCAT) recently discussed these important concepts in WCH v Mental Health Tribunal (Human Rights) [2016] VCAT 199 (WCH).

In that case, Victoria Legal Aid acted on behalf of the applicant at the hearing.

The ‘standard of proof’ refers to the level of proof required for a decision-maker to be persuaded that a ‘fact’ exists. In relation to the Mental Health Act 2014 (Vic) this is the ‘balance of probabilities’ or in simpler terms, it is ‘more probable than not’ that a fact exists. This civil standard is the contrast to the criminal standard, which requires proof ‘beyond reasonable doubt’.

The ‘Briginshaw principle’ (derived from the High Court case of Briginshaw v Briginshaw (1938) 60 CLR 336) intends that evidence required in certain cases will need to be stronger. This is obviously dependant on the seriousness of the matter and the gravity of the consequences from a particular finding.

In the Mental Health Act context, if a person is deemed to have a mental illness that jeopardises the safety of others, they can be subject to a Compulsory Treatment Order, which means they will be deprived of their freedom to choose what treatment they receive.

In relation to the WCH case, VCAT found that due to the seriousness of the matter, the Briginshaw principle applied when the Tribunal (or VCAT) considered the treatment criteria.

To make a decision, it must ‘actually be persuaded that a fact in issue exists’.  If there is uncertainty with evidence or ‘where findings are reached by drawing indirect inferences’, it is unlikely that this requirement will be satisfied.   

This reasoning is also relevant for an authorised psychiatrist when making a Temporary Treatment Order.

Practice tips for clinicians

When applying the treatment criteria and preparing reports for the Mental Health Tribunal or VCAT, clinicians should consider the following:

  • What is the source of the information? For example, relying on family members reporting issues alone may not be sufficient enough to be ‘satisfied’ of a particular fact, especially where, after monitoring the consumer for a period of time, those issues have not been observed by clinicians directly.

  • What is the likelihood of the consequence? For example, when unwell, Joe argues with his mother. While the arguments can become heated, Joe has never harmed or threatened to harm his mother. The fact that these arguments occur may not be enough to show that Joe would seriously harm his mother.

  • Be as specific as possible. The more detail about an event or allegation, the better. This includes referencing times, dates, who was present and so on. For example, ‘Davey has a history of self-harm when unwell’ may not be enough to show that immediate treatment is needed to prevent serious self-harm. A better description may be: ‘Davey has self-harmed in the past, most recently on 1 August 2016. Davey reports that the “voices” told him to hurt himself. His family reports that Davey needed to go to the emergency department after self-harming in response to the “voices” in July 2016.

  • Is a fact in issue current or recent? If there is little evidence of a fact in issue being current or recent, it may not be reliable. For example, Eric experienced somatic hallucinations 10 years ago. They were quite distressing for him. Since then, those symptoms have not recurred, and he has received no treatment. Relying on these past symptoms alone would not be enough to show that Eric has current (or recent) significant disturbance of perception (i.e. ‘has mental illness’) or that he needs immediate treatment.

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