Victoria Legal Aid

After the hearing – advising on next steps

If the person is unhappy with the outcome of their hearing, they have two main options for challenging the decision.

Mental Health Tribunal’s determination

The tribunal has now changed its template determination to indicate which treatment criteria were not met when an order is revoked. Usually, this will be given directly to your client at the conclusion of the hearing, and oral reasons for their decision given.

Discharge from hospital

Clients are often distressed when a long inpatient treatment order is made. Emphasise to your client that a long inpatient order does not mean they will be in hospital for the duration of the order. Explain that their psychiatrist must discharge them from hospital as soon as they believe they are ready to leave. The remainder of the order will then run as a community treatment order, unless the psychiatrist believes the person no longer meets the treatment criteria at all, in which case they must revoke the order.

If they are unhappy with the order they can appeal (see rights to appeal), or seek support from IMHA to advocate for their release from hospital.

Statements of reasons

A party to a proceeding before the Mental Health Tribunal has the right to apply for written reasons for the tribunal’s decision within 20 business days of the decision, although the tribunal has discretion to accept requests after that time. The request for reasons must be in writing (s. 198).

The tribunal must then provide a written statement of reasons to all parties within 20 business days of receiving the request (s. 198(4)). Section 199 provides for correction of orders and statements of reasons in certain circumstances, such as a clerical mistake.

Practice tips – requesting statements of reasons

  • You should advise your client of their right to request a statement of reasons. You can email, fax or write to the tribunal to make the request on your client’s behalf. If reasons are requested, then the client should be advised that a copy of those reasons will go on their clinical file and can be read by anyone with access to it.
  • Even if the tribunal makes a decision the person is not happy with, a request for reasons could be considered if the tribunal has made helpful comments, for example about discharge planning, or if the treating team has made particular commitments or concessions that are important to the client. Such reasons can be useful in any ongoing negotiations with the person’s treating team.

Rights to appeal

If the person is unhappy with the outcome of their hearing, they have two main options open for challenging the decision – either apply for another tribunal hearing, or appeal to the Victorian Civil and Administrative Tribunal (VCAT).

Application to the Mental Health Tribunal

A person can apply to the tribunal at any time for their order to be revoked (s. 60). This constitutes a fresh hearing and the person can ask for the help of their nurse or case manager in making the application.

For more detailed information, see Challenging a (temporary) treatment order.

Practice tips

  • If your client applies again to the tribunal, they can request that different members sit on the tribunal that decides their case.
  • There is no limit to the number of times a person can appeal.

VCAT appeal

Section 201 states that a person involved in the decision may apply for a merits review at VCAT within 20 business days of either the decision having been made, or the statement of reasons being received (if one is requested). An application can be made under s.67External Link of the Victorian Civil and Administrative tribunal Act 1998.

As the order of the Mental Health Tribunal will otherwise remain in force until the VCAT determination is made, a stay should be applied for under s.50External Link VCAT Act.

Practice tips

  • Tribunal, compared with VCAT. This may affect your assessment of merit in a VCAT appeal.
  • As the order of the Mental Health Tribunal will otherwise remain in force until the VCAT determination is made, a stay should be applied for under s.50External Link VCAT Act.
  • You should advise your client as best you can about their likely chances of succeeding on appeal to VCAT. You may only be able to make such an assessment after having received and reviewed the tribunal’s statement of reasons for its decision or reviewing the evidence and your client’s circumstances at the time of a new hearing. You may wish to seek further advice.

Supreme Court appeal

Under s.148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), VCAT decisions may be appealed to the Supreme Court only on a point of law.

Victoria Legal Aid may run such matters in limited circumstances where the matter aligns with VLA’s strategic advocacy priorities.

More information

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Disclaimer: The material in this print-out relates to the law as it applies in the state of Victoria. It is intended as a general guide only. Readers should not act on the basis of any material in this print-out without getting legal advice about their own particular situations. Victoria Legal Aid disclaims any liability howsoever caused to any person in respect of any action taken in reliance on the contents of the publication.

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Reviewed 03 June 2022

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