Mental health law practice guide for lawyers

Last updated July 2016

If you are assisting a client living with mental illness, there may be any number of laws to consider, depending on the nature of their legal issue.

The practice guide is designed primarily for lawyers who are assisting a person who is receiving treatment and other services at a public community mental health service or inpatient psychiatric unit at a public hospital.

Importantly, this guide contains practical information and tips about how you can best assist your client to understand and exercise their rights and options under the Mental Health Act 2014 to achieve their desired outcomes.

In this guide ...

How to use this guide

About the Mental Health Act 2014 and its principles

Role of lawyers in the mental health law jurisdiction

Compulsory treatment and assessment orders

Treatment criteria: compulsory treatment

The Mental Health Tribunal – its role and powers

Hearings at the tribunal – listing and procedures

Preparing for and appearing at a Mental Health Tribunal hearing

After the hearing – advising on next steps

Electroconvulsive treatment (ECT)

Disclaimer: The material in this publication is written for lawyers, but is intended as a general guide only. The information contained should not be relied upon as legal advice, and should be checked carefully before being relied upon in any context. Victoria Legal Aid expressly disclaims any liability howsoever caused to any person in respect of any legal advice given or any action taken in reliance on the contents of the publication.

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About the Mental Health Act 2014 and its principles

The Mental Health Act 2014 (Vic) provides for the assessment and treatment of people with mental illness within the public health system, including prescribed hospitals and public health services under the Health Services Act 1988 (Vic) and the Victorian Institute of Forensic Mental Health.

It also provides for the appointment of the Chief Psychiatrist and community visitors and establishes the Mental Health Tribunal (replacing the Mental Health Review Board) and the new Mental Health Complaints Commissioner.

Focus of new Act

The Mental Health Act came into effect on 1 July 2014. It sets out a framework intended to:

  • minimise the use and duration of compulsory treatment
  • promote supported decision making and recovery-oriented practice
  • increase safeguards to protect a person’s rights and dignity
  • ensure compulsory treatment is provided in the least restrictive and least intrusive manner
  • better facilitate carer and family involvement in treatment and care
  • encourage continuous improvement in the public mental health system.

It includes articulating a person’s rights to:

  • assessment of and treatment for mental illness in the least restrictive way possible, consistent with their rights to autonomy and dignity (s. 11(1)(a) and (e))
  • be presumed to have the capacity to make their own decisions about treatment (s. 70)
  • make and be supported to make their own decisions about treatment where possible (s. 11(1)(a) and (c))
  • make decisions that involve a degree of risk (s. 11(1)(d))
  • make an advance statement that sets out the person’s views and preferences about treatment that must be considered before compulsory treatment can be given (ss. 19–22)
  • communicate privately with people outside a mental health service, including lawyers specifically, and have visitors (ss. 14–18)
  • nominate a person, who can receive information and support the person to make decisions and who must be consulted at key points under the Act (ss. 23–27)
  • request second psychiatric opinions (s. 79)
  • only be subjected to restrictive interventions such as restraint and seclusion in limited circumstances and after all reasonable and less restrictive options have been tried or considered (s. 105)
  • be given information and have it explained in a way that the person is best able to understand (s. 8).

The Act also has greater recognition of the role of family members, carers and others in supporting a person with mental illness.

Some of these rights are reflected in the objectives at section 10 of the Act.

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Mental health principles

Another key element of the new framework under the Act is the inclusion of mental health principles at section 11(1) of the Act.

Mental health service providers and other individuals and bodies which are performing functions or exercising powers under the Act must have regard to these when providing those services, performing those functions and exercising those powers (s. 11(2) and (3)).

Rights of people receiving mental health services

The mental health principles articulate specific rights for all people receiving mental health services, regardless of age and their status as either compulsory or voluntary under the Act.

Section 11(1) provides that a person receiving mental health services should:

  • be provided assessment and treatment in the least restrictive way possible with voluntary assessment and treatment preferred
  • be provided with mental health services with the aim of bringing about the best possible therapeutic outcomes and promoting recovery and full participation in community life
  • be involved in all decisions about their assessment, treatment and recovery and be supported in making or participating in those decisions and their views and preferences should be respected
  • be allowed to make decisions about their assessment, treatment and recovery that involve a ‘degree of risk’
  • have their rights, dignity and autonomy respected and promoted
  • have their medical and other health needs (including any alcohol and other drug problems) recognised and responded to
  • have their individual needs (including culture, language, communication, age, disability, religion, gender, sexuality or other matters) and characteristics (including Aboriginal culture and identity) recognised and responded to
  • (if they are an Aboriginal) have their distinct culture and identity recognised and responded to
  • (if they are a child or young person under 18 years old) have their best interests recognised and promoted as a primary consideration, including receiving services separate from adults, whenever this is possible.

Rights of family members, carers and support people

Additional mental health principles also provide explicit recognition and respect for the rights and role of some family members and carers of a person receiving mental health services.

Section 11(1) requires that:

  • children, young persons (under 18 years old) and other dependents of persons receiving mental health services should have their needs, wellbeing and safety recognised and protected, and
  • carers (including children) for persons receiving mental health services should be involved in decisions about assessment, treatment and recovery, whenever this is possible, and should have their role recognised, respected and supported.

The definition of ‘carer’ is the same as in the Carer’s Recognition Act 2012 (Vic). This is a person (regardless of their age) who provides ‘ongoing support, assistance or personal care’ to another person because of that person’s mental illness, disability, chronic medical condition or because they are older, and will depend on the nature of their relationship and whether it can be defined as a ‘care relationship’.

Just because someone is the spouse, partner, parent, child or relative of the person does not necessarily mean they are a ‘carer’, nor does the fact that they live with them. Under the Mental Health Act, ‘carer’ does not include a parent of a child under the age of 16 years.

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Promoting supported decision-making and recovery-oriented practice

The Mental Health Act 2014 (Vic) promotes supported-decision making and recovery-oriented practice for people receiving mental health services.

Focus on supported decision-making

The principles of the Act reflect a shift in the provision of mental health services towards a focus on self-determination where a person is entitled to make their own decisions about treatment including decisions that involve risk (the ‘dignity of risk’).

They also reflect a move away from a focus on substitute decision-making (where decisions about treatment are made by someone else, such as their treating psychiatrist), towards supported decision-making (where the person makes the decision themselves and can be supported to do so).

These principles are also reinforced by the provisions relating to capacity and consent to treatment at sections 68–71, which include that a person is presumed to have the capacity to give informed consent to treatment and can make decisions that others may regard as unwise. They also mean that a person may be able to receive some of their treatment on a voluntary basis even if they are subject to a compulsory order.

Section 71 also effectively limits the treatment a person can be given against their wishes; only when it is the least restrictive in the circumstances, as determined by a range of factors, in particular the person’s own views and preferences.

The Act also provides new tools for supported decision-making, including:

  • advance statements (ss. 19–22) – a document that a consumer can write which sets out their views and preferences about treatment if they are made subject to compulsory treatment. An advance statement must be genuinely considered and respected by decision-makers such as the authorised psychiatrist (see s. 46(2)(a)(ii), s. 71(4)(b), s. 73) and the Mental Health Tribunal (s. 55(2)(b))
  • nominated persons (ss. 23–27) – a person that a consumer can appoint who can provide them with support and information, help them exercise their rights, and who must be consulted at various times if the person is subject to compulsory treatment
  • second psychiatric opinion (ss. 78–89) – which can be sought from any psychiatrist and whose views about the application of the treatment criteria, or any changes to the person’s treatment must be genuinely considered by their psychiatrist if they are subject to compulsory treatment.

In addition, the new Independent Mental Health Advocacy service (IMHA) can support people who are receiving compulsory psychiatric treatment to have as much say as possible about their assessment, treatment and recovery.

Recovery framework

Promoting recovery-oriented practice is a fundamental part of the legislative scheme introduced by the Mental Health Act 2014 and is an important concept for lawyers and advocates to understand. ‘Recovery’, though not defined in the Act, is about ensuring the person is put at the centre of their treatment and care.

As the (then) Minister for Mental Health noted in her Second Reading Speech when the legislation was introduced to parliament:

‘Recovery is about maximising individual choice, autonomy, opportunity and well-being during a person’s life and accordingly is a self-defined process that is highly individual’ (p. 471)

The Department of Health and Human Services’ Framework for recovery-oriented practice (2011) which identifies the principles, capabilities, practices and leadership that should underpin a recovery-oriented approach to mental health service delivery states that recovery: ‘encompasses notions of self-determination, self-management, personal growth, empowerment, choice and meaningful social engagement’ (p. 2).

Unlike a clinical or ‘biomedical’ concept of recovery, which focuses on a particular ‘outcome’ such as where the symptoms of mental illness are reduced or absent, there is no one definition of what recovery means in a mental health context.

Rather, it can sometimes be described as an individual ‘journey’, unique to each person. It is defined ‘by the person’ and is ‘informed by the person’s unique strengths, preferences, needs, experiences and cultural background’ (​Slade, 2009, 100 ways to support recovery: a guide for mental health professionals).

In the Act, recovery is explicitly referred to in the mental health principles (ss. 11(1)(b), 11(1)(c), 11(1)(d)). It is also reflected in the obligation on the authorised psychiatrist and the Mental Health Tribunal to have regard to a person’s own individual recovery goals and views and preferences about treatment and in giving effect to ‘least restrictive’ treatment, even when the person may be subject to an order for compulsory treatment.

Other safeguards in the Act

The principles of least restrictive treatment and promotion of autonomy and dignity are reflected in and supported by other reforms in the Act including:

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See the Department of Health website for:

For more information about mental health treatment and services, see the Independent Mental Health Advocacy service (IMHA) website.

After the hearing – advising on next steps

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 tip

If your client applies again to the tribunal, they can request that different members sit on the tribunal that decides their case.

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).

Practice tips

  • It can take some time between the application being made and the hearing being listed at VCAT. By that time the person’s circumstances may have changed, for example, they may have been discharged from hospital.
  • As it is a merits review, VCAT will assess the treatment criteria and other issues based on the person’s circumstances at the time of the hearing.
  • The person is likely to have a hearing more quickly if they apply again to the Mental Health Tribunal, compared with VCAT. This may affect your assessment of merit in a VCAT appeal.
  • 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.

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Compulsory treatment after the Tribunal has revoked an order

The service should respect the decision of the Mental Health Tribunal

The Mental Health Tribunal has a critical role in providing independent oversight of compulsory treatment and decisions of the tribunal should be respected by clinicians and not overturned lightly.

Following a tribunal’s decision to revoke a person’s order, a person should not be made subject to compulsory treatment unless the doctor or psychiatrist is satisfied there has been a change in circumstances.

Need for a change in circumstances

The Supreme Court in the case of XX v WW and Middle South Area Mental Health Service [2014] VSC 564 (17 December 2014) ruled that doctors cannot order people to be detained for involuntary treatment (as it then was) simply because they disagree with a decision by the (then) Mental Health Review Board. Although decided under the Mental Health Act 1986, the case provides welcome clarification and better rights protection for consumers.

Both the 1986 Act and the current Mental Health Act 2014 are silent as to when a doctor can make an order to compel mental health treatment following a Board or Tribunal decision to cancel such an order. In XX v WW, the patient was readmitted as an involuntary patient only a few hours after the Board’s decision to discharge her involuntary treatment order (ITO). The court ruled at [97] that:

‘Absent some change in circumstances, a [registered medical practitioner] cannot lawfully make a recommendation for an ITO simply because he/she disagrees with the decision of the Board. The power cannot be exercised capriciously or so as to render the Board's powers nugatory.’

The case indicates that, unless there is a clear change in circumstances following the tribunal’s decision to revoke an order, a psychiatrist’s decision to make a temporary treatment order is likely to be unlawful. Whether there is such a change in circumstances will turn on the facts of each case. In the case of XX v WW, the Court ultimately found on the facts that circumstances had changed and the decision to make a recommendation that would lead to her involuntary detention and treatment was in fact lawful.

Practice tip – is compulsory detention or treatment after the tribunal’s revocation lawful?

If hospital staff are detaining your client in hospital or your client is otherwise being compelled to have treatment, immediately or very shortly after the tribunal has revoked their order, try to get as much information as possible about the circumstances at the time of the hearing, or the basis on which the tribunal revoked the order, to assess if there has indeed been a change in circumstances.

With your client’s consent, consider:

  • requesting copies of or getting access to the new assessment order or temporary treatment order or other information from your client’s file
  • advocating to the treating team that the order to be revoked. If the psychiatrist cannot establish a change in circumstances, the order may be unlawful (following the XX v WW decision)
  • making a request for a statement of reasons from the tribunal, and/or requesting an urgent application to the tribunal for revocation of any new temporary treatment order.

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Compulsory treatment and assessment orders

The Mental Health Act 2014 (Vic) provides the legal framework for the assessment of people who appear to have a mental illness and the treatment of those who are assessed as having a mental illness.

Although the mental health principles state that such assessment and treatment should be provided in the least restrictive way possible, and preferably on a voluntary basis (see section 11(1)(a) and (d)), the Act authorises compulsory assessment and treatment in certain circumstances, provided the relevant criteria are met and the process is followed. These provisions are set out in Part 4 of the Act.

Covered in this section

This section covers:

  • an overview of the relevant criteria, processes and timelines that apply to the making of compulsory assessment and treatment orders, and the mechanisms for a person to challenge such orders
  • practical advice and tips to enable you to identify whether these processes were followed and criteria properly applied
  • practical advice and tips on advising your client about their options if they are unhappy or concerned about being made subject to a compulsory order.

You should also be aware that even once a person is subject to a compulsory treatment order, the treating team must also follow certain steps before compulsory treatment (without consent) can be given.

Process for compulsory assessment and treatment

The making of orders for compulsory assessment and treatment involves three key steps:

Assessment order

This order can be made by a doctor or mental health practitioner who has examined a person and determined they meet the assessment criteria. The assessment order enables an authorised (or other) psychiatrist to examine that person to determine whether they meet the criteria for compulsory treatment. For an inpatient assessment order, it also provides authority for the person to be taken to and detained in a designated mental health service.

The duration of the order will depend on the type of order and the circumstances, such as whether the person is an inpatient or in the community and when they were brought to hospital (s. 34 of the Act).

Read more about Assessment orders.

Temporary treatment order

This order can be made by an authorised psychiatrist after they have examined a person subject to an assessment order and determined they meet the treatment criteria. The order enables a person to be given mental health services (including compulsory treatment), even if they do not agree with it. The order may be a community or inpatient order and lasts no more than 28 days.

Read more about Temporary treatment orders.

Treatment order

This order can be made by the Mental Health Tribunal, for a person subject to a temporary treatment order (or treatment order). Once an authorised psychiatrist applies for a treatment order, the tribunal must conduct a hearing. It can only make an order if it is satisfied that all four treatment criteria are satisfied. It must also decide the type (community or inpatient) and duration of the order (maximum time limits apply).

A compulsory patient is someone who is subject to an assessment order (or court assessment order), a temporary treatment order, or a treatment order (s. 3).

Read more about Treatment orders and The Mental Health Tribunal.

Important safeguards

  • A person who is subject to a temporary treatment order or treatment order may apply to the Mental Health Tribunal at any time for a hearing to determine if they still meet the criteria for compulsory treatment (s. 60).
  • Under s. 61, at any stage if a person no longer meets all four treatment criteria, the authorised psychiatrist must revoke the order, whether a temporary treatment order or treatment order. The person can ask the authorised psychiatrist to assess them for this reason.

If any of the above orders are made, the person must be given a copy of the order and a statement of rights relevant to the particular order made.

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Apprehension and transport to a designated mental health service

The making of (or variation to) an inpatient assessment order, temporary treatment order or treatment order gives an authorised person authority to take a person subject to such an order to a designated mental health service – such as a public hospital’s psychiatric unit – and detain them there.

An authorised person is a police officer, ambulance paramedic, doctor from a mental health service or mental health practitioner, such as a member of the CAT team.

Likewise, if a person is determined to be absent without leave from an inpatient unit, then the authorised psychiatrist can arrange for the person’s apprehension and transport and these apprehension and transport provisions apply (s. 352).

Powers of authorised person

Section 353 gives an authorised person the power to:

  • enter premises (including with reasonable force and bodily restraint in certain circumstances)
  • apprehend the person
  • take them to a designated mental health service.

These powers can only be exercised for the purpose of taking the person to the designated service – a person cannot simply be apprehended without being transported to a service.

Right to search, seize and detain

Sections 354–356 give the authorised person powers to search a person if they suspect they are carrying anything that:

  • presents a danger to health and safety of the person or another person, or
  • could be used to assist the person to escape.

They also have the power to seize and detain things found in a search, in certain circumstances and in accordance with particular safeguards, for the person’s privacy and dignity. A person can also be sedated in certain circumstances so they can be transported safely.

Practice tips

  • An authorised person must consider the mental health principles when apprehending and transporting a person to hospital, in particular that services are provided in the least restrictive way possible (s. 11(1)(a)) and their rights and dignity are respected and promoted (s. 11(1)(e)).
  • The Department of Health and Human Services’ Protocol for the transport of people with mental illness 2014 provides guidance on appropriate transport of people with mental illness.
  • The time a person is received at the hospital dictates by what time the psychiatrist must assess them. An inpatient assessment order will expire 24 hours after their receipt at the hospital and they must be assessed within that time. If they meet the criteria for a temporary treatment order, the order must be made before the assessment order expires. Read more about Assessment orders.
  • If your client lives in a remote or regional area, it is worth taking note of the manner with which they were transported to hospital. This may have impacted upon their presentation when they were assessed for the temporary treatment order.

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Assessment orders

If a doctor or mental health practitioner examines a person (under section 30 of the Mental Health Act 2014) and determines that all four assessment criteria are met, then they may make an assessment order (s. 28).

The purpose of an assessment order is to enable an authorised psychiatrist to compulsorily examine the person to see if they have a mental illness and meet the criteria for compulsory treatment.

Court assessment orders under Part 5 of the Sentencing Act 1991 have a similar purpose (see also Part 4, Div 2 of the Act, ss. 39–44).

A mental health practitioner means (s. 3) a person who is employed or engaged by a designated mental health service (public mental health service or hospital) and is a:

  1. registered psychologist; or
  2. registered nurse; or
  3. social worker; or
  4. registered occupational therapist.

Assessment criteria

Section 29 sets out the criteria for the making of an assessment order, which are that:

  1. the person appears to have mental illness, and
  2. because the person appears to have mental illness, they appear to need immediate treatment to prevent:
    1. serious deterioration in their mental or physical health, or
    2. serious harm to themselves or another person, and
  3. if an assessment order is made, then they can be assessed, and
  4. there is no less restrictive means reasonably available to enable the person to be assessed.

In deciding whether the assessment criteria apply, the doctor or mental health practitioner may consider other information provided by a third party.

Before making the order, the doctor or mental health practitioner must explain to the person being assessed that they will be examined and the purpose of that examination (to the extent that is reasonable in the circumstances) (s. 30).

They must also give the person a statement of rights once the order is made.

Practice tip

At this stage of the process, it is not necessary for the doctor or mental health practitioner to find definitively that the person has a mental illness or does need treatment; it is enough to find they appear to.

Community and inpatient assessment orders – effect and duration

If a community assessment order is made, the person can be compulsorily examined in the community. Such an order lasts for up to 24 hours.

However, if the doctor or mental health practitioner is satisfied the person cannot be assessed in the community, they may instead make an inpatient assessment order which enables the person to be taken to and detained in a designated mental health service, such as the psychiatric unit of a public hospital, in order to be examined.

The doctor or mental health practitioner also has the power to vary a community assessment order to an inpatient assessment order (and vice versa).

Once on an inpatient assessment order, a person must be taken to a designated mental health service within 72 hours. The order expires 24 hours after they are received at the service. However, if they are not received at a service in that time, the order expires after the initial 72 hour period.

Before an assessment order expires, the person must be examined by an authorised psychiatrist to determine whether the treatment criteria are met, and whether to make a temporary treatment order. That authorised psychiatrist must be a different person to the person who made the assessment order (s. 47).

If the authorised psychiatrist, after examining the person, is unable to make this determination, then they may extend the assessment order up to two times (on each occasion for a maximum of 24 hours) (ss. 28–37).

Treatment on an assessment order

A person cannot be given mental health treatment while on an assessment order unless (under s. 38(2)):

  1. they give informed consent (see s. 69), or
  2. a registered medical practitioner employed by the mental health service is satisfied that urgent compulsory treatment is necessary to prevent serious deterioration in their mental or physical health or serious harm to themselves or another person.

Practice tips

  • The type of treatment a person can be forcibly given on an assessment order is significantly limited by section 38(2).
  • If a person is concerned about being given treatment they don’t agree with, they can make a complaint to the Mental Health Complaints Commissioner.

Challenging an assessment order

A person cannot challenge or appeal against their assessment order at the Mental Health Tribunal, however they can make a complaint to the Mental Health Complaints Commissioner.

General practice tips for assessment orders

  • An assessment order is the start of the process for compulsory mental health treatment. It is only a short-term order, designed to allow a person to be assessed by an authorised psychiatrist to see if they meet the criteria for compulsory treatment.
  • Check the time limits carefully. If an assessment order expires before a temporary treatment order is made, the person cannot be given compulsory treatment. A new assessment order would have to be made to restart the process.
  • Voluntary assessment and treatment is preferred. However if an assessment order is made, a community assessment order rather than an inpatient assessment order should be made wherever possible, consistent with s. 11(1)(a) and (d).
  • An assessment order cannot be challenged at the Mental Health Tribunal. If your client is concerned about an assessment order or the compulsory treatment they have been given whilst on the order, they can make a complaint to the mental health service or the Mental Health Complaints Commissioner.

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Challenging a (temporary) treatment order

A person can challenge or appeal against their temporary treatment order or treatment order by applying to the Mental Health Tribunal for the order to be revoked, or by requesting someone else do so on their behalf (s. 60).

If the person is under 16 or they have a guardian, their parent or guardian (as the case may be) can also make that application.

The tribunal must then conduct a hearing as soon as practicable to determine whether the treatment criteria apply.

If it is satisfied all four criteria are met, the tribunal must make a treatment order and determine the type and duration of the order.

If any one or more of the criteria are not met, then the tribunal must revoke the person’s order.

The authorised psychiatrist also has a responsibility to immediately revoke a person’s order if they determine the treatment criteria no longer apply (s. 61).

Practice tips

  • Provide your client with the Victoria Legal Aid brochure Are you on a treatment order.
  • Applications for revocation of a temporary treatment order can be made by filling out a hard copy form (available at all mental health services and the tribunal) or completing an online application. This form is also available in our brochure, Are you on a treatment order.
  • If your client needs help making their application, they can ask staff at the hospital or clinic to assist, including sending the form to the tribunal once completed. Alternatively, you can fill out an online form on your client’s behalf.

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Temporary treatment orders

A temporary treatment order is an order made by an authorised psychiatrist that enables a person to be given compulsory mental health treatment.

It lasts for a maximum of 28 days and may be either a community temporary treatment order or an inpatient temporary treatment order.

Making a temporary treatment order

An authorised psychiatrist must examine a person who is on an assessment order to determine if the criteria for compulsory treatment are met and if a temporary treatment order should be made.

This examination must occur as soon as practicable and before the assessment order expires. The authorised psychiatrist conducting the examination cannot be the same person who made the assessment order (s. 47).

The authorised psychiatrist can consider information communicated by people other than the person being assessed (s. 46(2)(b)).

If satisfied that all four of the treatment criteria are met, the authorised psychiatrist can make either a community temporary treatment, or an inpatient temporary treatment order (s. 46(1), s. 48(1)). This is discussed in more detail in Type and duration of orders.

If not all criteria are met, they must immediately revoke the person’s assessment order (s. 37(1)).

Once an order is made, the person must be given a copy and the order explained to them (s. 50(1)) and be given a copy of the statement of rights. The Mental Health Tribunal must also be notified (s. 50(2)).

Treatment criteria

Section 5 sets out the treatment criteria:

  1. the person has mental illness
  2. because the person has mental illness, the person needs immediate treatment to prevent:
    1. serious deterioration in the person's mental or physical health, or
    2. serious harm to the person or to another person.
  3. the immediate treatment will be provided to the person if the person is subject to a temporary treatment order (or treatment order – where considered by the Mental Health Tribunal), and
  4. there is no less restrictive means reasonably available to enable the person to receive the immediate treatment.

These criteria are discussed in more detail under Treatment criteria.

Type and duration of orders – community or inpatient order

The key difference between community and inpatient orders is that, while both enable a person to be given compulsory treatment, an inpatient order also enables a person to be taken to and detained in a designated mental health service in order to get that treatment (see s. 45).

Both types of orders last for a maximum of 28 days, during which time, the authorised psychiatrist must revoke the order if the treatment criteria no longer apply. The person then ceases to be a compulsory patient.

Unless the order is revoked, the Mental Health Tribunal will automatically schedule a hearing before the expiry of the 28-day period to determine if further compulsory treatment is justified (s. 53).

Factors to consider in making a temporary treatment order

The authorised psychiatrist must consider specific factors both when deciding whether the treatment criteria apply and which type of order to make – community or inpatient (s. 46(2)(a), s. 48(2)).

These factors include:

  • the person’s views and preferences about treatment (including those outlined in an advance statement if they have one)
  • their reasons and any recovery outcomes they want to achieve.

If a person has a nominated person or guardian their views must also be considered. The views of a carer must also be considered provided making the order will directly affect the carer and their care relationship with the person. A parent's views must also be considered if the person is under 16 years. To read more about the rights of carers, see Mental health principles.

An inpatient order can only be made if the authorised psychiatrist is satisfied the person cannot be treated in the community (s. 48(3)).

Practice tip

Check whether the person’s views and preferences about treatment and their recovery goals have been considered by the psychiatrist when deciding whether to make a temporary treatment order and whether it should be an inpatient or community order.

Validity of a temporary treatment orders

A temporary treatment order is not valid unless it complies with the mandatory requirements for the order (s. 361).

The mandatory requirements for a temporary treatment order are that it:

  1. specifies whether it is a community temporary treatment order or an inpatient temporary treatment order (s. 49(a))
  2. provides the date and time on which it was made (regulation 6(2)(a) of the Mental Health Regulations pursuant to s. 49(b))
  3. provides advice that the order has a duration of 28 days unless revoked at an earlier date (regulation 6(2)(b) pursuant to s. 49(b)).

General practice tips for temporary treatment orders

  • Only an authorised psychiatrist can make a temporary treatment order.
  • Check the time limits carefully. If an assessment order expires before a temporary treatment order is made, the person cannot be given compulsory treatment. A new assessment order would have to be made to restart the process.
  • Check the temporary treatment order carefully. The order will be invalid on its face if the authorised psychiatrist has not checked the box specifying whether it is community or inpatient or if the authorised psychiatrist has not provided the date and time.
  • A temporary treatment order is an initial order and can last for no more than 28 days.
  • A person subject to a temporary treatment order can, at any time, apply to the Mental Health Tribunal to have it revoked (s. 64).
  • The authorised psychiatrist must immediately revoke a person’s temporary treatment order if the criteria no longer apply (s. 61).
  • Voluntary treatment should be preferred. However, where an order is made, a community rather than an inpatient treatment order should be made wherever possible. This is consistent with the mental health principles at ss. 11(1)(a) and (b).
  • Even when a person is on a temporary treatment order, not all of their treatment will necessarily be given compulsorily. They may still be able to receive some of their treatment, or a particular medication, voluntarily.
  • An inpatient treatment order is sufficient authority for a person to be transported to hospital by people such as the police, ambulance or the CAT team. See Apprehension and transport to a designated mental health service.

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Treatment orders

A treatment order is an order made by the Mental Health Tribunal that enables a person to be given (further) compulsory mental health treatment.

It may be either a community treatment order (maximum of 12 months’ duration) or an inpatient treatment order (maximum six months’ duration). For young people under 18, both types of orders can only be made for a maximum of three months.

When the tribunal can hold treatment order hearings

A treatment order hearing can come about in four ways:

  • If the person is on a temporary treatment order the tribunal will automatically schedule a hearing before the expiry of that 28-day order (s. 53).
  • If the person is already on a treatment order and the authorised psychiatrist applies for a (further) treatment order the tribunal must conduct a hearing (s. 54). The psychiatrist must apply at least 10 days before the order’s expiry.
  • If the person is subject to either a temporary treatment order or treatment order and that person applies for revocation of that order the tribunal must conduct a hearing as soon as practicable (s. 60).
  • If the person’s community temporary treatment order or community treatment order is varied to an inpatient order the tribunal must conduct a hearing within 28 days of the variation to determine whether to make a treatment order (s. 58).

Powers of the tribunal

At a treatment order hearing, the Mental Health Tribunal must either:

  • make a treatment order, if satisfied that the person meets each and every one of the four treatment criteria, or
  • revoke the order to which the person is subject, if one or more of the treatment criteria are not met.

If the tribunal makes a treatment order, they must also determine the:

  • type of order – either:
    • a community treatment order (s. 52(1)(a)) or
    • an inpatient treatment order (s. 52(1)(b)).
  • duration of the order:
    • up to a maximum of 12 months for a community treatment order
    • six months for an inpatient order (for adults)
    • for a young person under 18 years for a maximum of three months in either case (s. 53, ss. 55–57).

While both types of order enable a person to be given compulsory treatment, the key difference between community and inpatient orders is that an inpatient order also enables a person to be taken to and detained in a designated mental health service in order to get that treatment.

The tribunal's powers in a treatment order hearing are the same, regardless of how the hearing is initiated.

Factors the tribunal considers in making a treatment order

The tribunal must consider specific factors when deciding whether the treatment criteria apply, which type of order to make – community or inpatient – and how long the order should be (s. 55(2)).

These factors include:

  • the person’s views and preferences about treatment (including those outlined in an advance statement if they have one)
  • their reasons and any recovery outcomes they want to achieve
  • their nominated person or guardian’s views (if they have one)
  • (in certain circumstances) the views of a carer and parent. This is discussed more in Temporary treatment orders. You can also read more about the rights of carers in the Mental health principles.

An inpatient order can only be made if the tribunal is satisfied the person cannot be treated in the community (s. 55(3)).

The tribunal should also apply the mental health principles, in particular, to ensure that the type and length of an order:

  • is least restrictive of the person
  • promotes full participation in the community
  • respects the person’s views and preferences
  • promotes their autonomy and dignity
  • allows them to make decisions involving a degree of risk (s. 11(1)(a)–(e)).

Key issues in the hearing

If your client is already on a temporary treatment order or treatment order, it is likely that the focus of your advocacy will be on preparing for and appearing at a tribunal hearing. The key issues in dispute are likely to be:

  • whether the tribunal can be satisfied that the treatment criteria are met and on what basis
  • which type of order your client should be placed on
  • whether treatment can be obtained in the community or otherwise without detention, or whether it can only be given in hospital
  • how long any order should be made for
  • your client’s views and preferences about their treatment and their plan for recovery, including treatment options and time frames.

General practice tips regarding treatment orders

  • A treatment order may only be made by the Mental Health Tribunal (s. 52(1)).
  • At any time, a person can apply to the tribunal for their treatment order to be revoked (s. 60).
  • Voluntary treatment should be preferred. However, where an order is made, a community rather than an inpatient treatment order should be made wherever possible. This is consistent with the mental health principles at s. 11(1)(a) and (b).
  • The tribunal must consider the person’s views and preferences about treatment and apply the mental health principles when deciding the type and duration of the order.
  • Even if a person is on a treatment order, they may still be able to get some of their treatment voluntarily.
  • The authorised psychiatrist must immediately revoke a person’s treatment order if the criteria no longer apply (s. 61).
  • Once a treatment order expires, a person can no longer be given compulsory mental health treatment. The authorised psychiatrist may apply to the tribunal before its expiry if they believe the treatment criteria are satisfied and a further compulsory order (a treatment order) is warranted (s. 54).
  • If a person’s (temporary) treatment order is revoked, then any compulsory ECT they are receiving must also cease. This is because section 92(1) makes clear the Act only authorises ECT to be performed on an adult who is a ‘patient’ (a person subject to an order for compulsory treatment). ECT for adults who are voluntary patients is outside the scope of the Act and can only take place with the person’s informed consent. See Electroconvulsive treatment (ECT).

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Treatment that can be given on a (temporary) treatment order

Section 72 provides that a person subject to an order for compulsory treatment (such as a temporary treatment order or treatment order) ‘is to be given treatment for his or her mental illness’. Compulsory mental health treatment can be given on such an order, however the Act makes clear that voluntary treatment should be preferred (s. 11(1)(a)).

Is the treatment given voluntarily or compulsorily?

When making decisions about treatment (including when the psychiatrist proposes to change a person’s treatment) and before administering compulsory treatment, the treating psychiatrist should first check whether the person can receive that treatment or medication voluntarily (see ss. 70, 71).

Sections 68–71 of the Act (regarding capacity and consent) provide that a person may still be able to receive some of their treatment on a voluntary basis, even whilst being subject to an order for compulsory treatment, such as a temporary treatment order or treatment order. This is consistent with the objectives at s. 10(b) and (d) and the mental health principles at s. 11(1)(a), (c) and (e).

When can treatment be given compulsorily?

The starting point is that a person is presumed to have the capacity to give informed consent to treatment (s. 70). Merely because a person has a diagnosis of mental illness, or they make a decision their doctor thinks is unwise, or they are on a compulsory order, does not necessarily mean they do not have capacity to consent to treatment (see s. 68(2)).

A person can only be given treatment compulsorily (under s. 71) if they are subject to an order (such as a temporary treatment order or a treatment order) and provided the authorised psychiatrist is satisfied that two threshold questions are met:

  1. The authorised psychiatrist must first be satisfied that either:
  • the person has been assessed as not having the capacity to give informed consent to the treatment the psychiatrist is proposing; or
  • they have capacity but do not give their consent to that treatment (s. 71(1)

and

  1. The authorised psychiatrist must then be satisfied that the particular treatment they propose to give is the least restrictive way for the person to be treated (s. 71(3)), having regard to specific factors including (s. 71(4)):
  • the person’s views and preferences about treatment and any alternative treatments (including in their advance statement)
  • their recovery outcomes
  • the likely consequences for the person if they do not get the treatment proposed by their treating psychiatrist
  • the views of a nominated person and guardian (if the person has one)
  • any second psychiatric opinion they have received
  • the views of a carer or parent can be considered in certain circumstances.

The Act places obligations on mental health services to do everything possible to ensure the person has the best opportunity to make their own informed decision about treatment, supported decision-making options are pursued and compulsory treatment is a last resort. This includes:

  • not treating capacity as a blanket concept – a person’s capacity to give informed consent is specific to the particular decision that needs to be made and may change over time (s. 68(2)(a) and (b))
  • providing the person with information about the proposed treatment (including an explanation of the advantages and any side effects of that treatment and any beneficial alternatives) before an assessment is made to determine if a person does not have capacity to consent to it (s. 69(1) and (2))
  • providing information and explaining it in a way the person can best understand, ideally in writing and orally and with an interpreter if necessary (s. 8)
  • giving the person a reasonable time as well as support and advice to make a decision, including an opportunity to ask questions and consult a support person of their choice (s. 69(1) and (3)). This may include requesting a second opinion (under s. 79).

Practice tips

  • Compulsory treatment should only be given as a last resort. Check with your client, with the treating team and in the file what attempts have been made to provide information and advice and facilitate support for them to make their own decision.
  • It is not enough for the psychiatrist to give compulsory treatment merely because the person is not consenting to it. Compulsory treatment cannot be given unless there is evidence it is the least restrictive way for the person to be treated having regard to the persons own (subjective) views and preferences.
  • When prescribing treatment the psychiatrist must also consider whether that treatment aims to bring about the best possible therapeutic outcomes (mental health principle s. 11(1)(b)). However this is not sufficient in the case of compulsory treatment. There must also be evidence that it is the least restrictive way for the person to be treated having regard to the person’s views, preferences and recovery outcomes (subjective test) before it can be validly given against a person’s wishes under s. 71(3) and (4).
  • If the person agrees to the particular treatment the psychiatrist wants to give them, then consistent with the presumption of capacity in section 70, they can arguably get that particular treatment or medication voluntarily. In that case the treatment criteria may not all be met. The person can apply to the Mental Health Tribunal for revocation of the order if their psychiatrist does not revoke it.
  • If a person is concerned about treatment they don’t agree with, they can also make a complaint to the Mental Health Complaints Commissioner.
  • Consider referring your client to the Independent Mental Health Advocacy service (IMHA) for assistance with treatment decisions and preferences.

Note: electroconvulsive treatment (ECT) and neurosurgery are governed by specific and separate processes and criteria in the Act.

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Varying the type of order – community to inpatient, inpatient to community

An authorised psychiatrist has the power to vary a person’s temporary treatment order or treatment order from a community to an inpatient order and vice versa (s. 58).

The duration of the order is unaffected, but if a community order is varied to an inpatient order it triggers a hearing at the Mental Health Tribunal within 28 days (s. 58(5)).

When making any of these decisions, the authorised psychiatrist must also have regard to the mental health principles.

Varying a person’s order does not affect their rights to apply to the Mental Health Tribunal for the order to be revoked. If a person’s order has been varied before their hearing, the hearing will still proceed but the venue and date may change. For more information, see The Mental Health Tribunal – its role and powers.

Practice tips

  • An inpatient order is by definition more restrictive of a person’s rights than a community order. Before varying to an inpatient order, the authorised psychiatrist must have evidence in order to be satisfied the person cannot be treated in the community.
  • When making a decision to vary an order, the authorised psychiatrist must also have regard to the mental health principles in particular that mental health services promote full participation in community life at s. 11(1)(b).

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Electroconvulsive treatment (ECT)

What is ECT?

Electroconvulsive treatment (ECT) is a medical procedure where ‘electric current is applied to specific parts of a person’s head to induce a generalised seizure’ (s. 3) within the brain. It is aimed at reducing some of the symptoms of mental illness and is performed under general anaesthetic.

The introduction of the Mental Health Act 2014 (Vic) brings in new safeguards for people for whom ECT is proposed, including the requirement that only the Mental Health Tribunal can authorise ECT for a person under 18 years old, and ECT for adult compulsory patients who do not have capacity to give informed consent and where there is no less restrictive way for them to be treated.

The Act makes it clear that ECT is an extraordinary form of treatment, and that this treatment (like neurosurgery) should only be performed without consent in very limited situations. This view of ECT is supported by the requirement for young people that the treatment cannot be given without authorisation by the tribunal, even if the young person consents to it.

This section covers the requirements that must be satisfied before ECT can be given, as well as some steps you can take when acting in an ECT matter.

Overview of the law: when ECT can be given

When ECT can be given depends on a person’s age (whether they are an adult or a young person (under 18 (s. 90)), and legal status (whether a voluntary or compulsory patient).

The Mental Health Act 2014 (Vic) provides that ECT can be performed on a person in one of two ways:

  • with informed consent (adults), or
  • when authorised by the Mental Health Tribunal.

With the person’s informed consent (adults)

ECT can be performed on an adult who gives informed consent. Even if the person is a compulsory patient (or a security or forensic patient), they may still be able to give informed consent to ECT in accordance with section 92(1)(a) (see s. 69 for a definition of informed consent). This is consistent with the framework of the new Act, which distinguishes between the criteria for making compulsory orders (e.g. the treatment criteria), and a person’s capacity to consent to a particular treatment, consistent with the presumption of capacity (see s. 70 and ss. 11(1)(a)).

Where an adult gives informed consent it must be given personally and recorded in writing (s. 92(1)(a)) and specify the particular ‘course of ECT’. A ‘course of ECT’ can be a maximum of 12 individual treatments of ECT performed within a period of six months (maximum).

The steps the authorised psychiatrist must take to show that a person is able to give informed consent to ECT are outlined in the Department of Health’s Form MHA 131 – ECT Informed Consent.

In this situation, prior authorisation from the Mental Health Tribunal is not required before ECT is performed, however if a person withdraws their consent mid-course for example, they could only be given further ECT if authorised by the tribunal. See When an adult’s informed consent previously given is withdrawn.

ECT for voluntary patients (adults)

Although ECT for adults who are voluntary patients is independent of the Act, the Chief Psychiatrist’s guidelines recommend that clinicians goes through the same process to seek informed consent as that prescribed under the Act. See the Chief Psychiatrist’s Guideline on ECT’ at p. 18.

Practice tips

  • Where a client has previously consented to ECT, it may be worth enquiring if there has been any change – have they now withdrawn consent or do they wish to do so? If consent has been withdrawn, seek your client’s instructions to request an immediate stop to ECT, in accordance with s. 91(3)(c).
  • If an application is then made to the tribunal in order to continue ECT, you should advise your client of the criteria and consider whether to assist them at their hearing.

When authorised by the Mental Health Tribunal

If a person does not give informed consent, ECT can otherwise only be performed by an authorised psychiatrist if the Mental Health Tribunal makes an order for its authorisation (s. 92(1)(b) and (2)). If an authorised psychiatrist proposes to use ECT treatment, they must apply to the tribunal for permission in relation to:

  • an adult compulsory patient (or security or forensic patient), who is not able to provide informed consent to ECT (s. 93(1)), or
  • any person under 18 (a young person), regardless of whether they are consenting or are a voluntary or compulsory patient (s. 94 (1) and (2).

Practice tips

Given the particular distinction for young people – that ECT cannot be performed without the tribunal’s authorisation, even if the person consents – an advocate for a young person should scrutinise any ECT application to the tribunal carefully.

If the tribunal authorises ECT, it must make an order which specifies:

  • the number of treatments to be performed (no greater than 12 – ss. 91(1)(a) and 97(a)), and
  • the date by which the treatment must be completed (within six months of the date of granting the application – ss. 91(1)(b) and 97(b)).

If the tribunal refuses the application, ECT must not be given.

Practice tip

When an application is made for an ECT order, the key issues to consider are whether there is sufficient evidence to satisfy the Tribunal of the two criteria, that:

  • the person does not have capacity to give informed consent to ECT, and
  • ECT is the least restrictive way the person can be treated (having regard to any beneficial alternative treatments and whether they have been considered and/or tried).

Other issues related to ECT are likely to include the number of treatments, and over what duration, both of which must be supported by the evidence and set out in any order made by the tribunal.

Overview of the law: when ECT must be stopped

When an adult’s informed consent previously given is withdrawn

If ECT has commenced because informed consent was given and this consent is subsequently withdrawn, the Act deems that that particular course of ECT treatment comes to an end (s. 91(3)(c) and s. 98(1)(a)). If the authorised psychiatrist has concerns that the person lacks capacity to give an informed withdrawal of consent, they should seek an ECT order from the mental health tribunal. Such an application can only be made in respect of a compulsory patient.

When ECT previously authorised by the tribunal

In certain circumstances, tribunal authorisation will no longer be effective and ECT must be stopped. This applies where:

  • an adult or young person regains capacity to give informed consent and subsequently refuses to give consent during a course of ECT (s. 98(1)(b) and (2)(b))
  • a young person provided informed consent and subsequently withdraws that consent (s. 98(2)(a))
  • a legally authorised person who provided consent for a young person subsequently withdraws that consent (s. 98(2)(c))
  • an adult ceases to be a compulsory patient (e.g. The Mental Health Tribunal later revokes their (temporary) treatment order) and they do not provide informed consent to ECT
  • the provisions in s. 94 make clear that the performance of ECT on a 'patient' can only take place in accordance with the Act.

Practice tip

In any of the first four situations above, the psychiatrist cannot continue with ECT unless the tribunal authorises a new course of ECT. The authorised psychiatrist could apply for such authorisation, provided they were satisfied the relevant criteria were met.

Remember that the ECT decision by the tribunal is a point-in-time decision and that if the application is refused, the authorised psychiatrist can always reapply if they're satisfied that the criteria are met.

More information

ECT Tribunal hearings – process and criteria

Please note that the content of this page is being reviewed in response to the recent decision of the Supreme Court of Victoria in PBU & NJE v Mental Health Tribunal [2018] VSC 564 (1 November 2018)

See Justice Bell’s comments regarding the capacity test in ECT hearings

See Justice Bell’s comments regarding the no less restrictive treatment test

On this page:

Step 1: An application is made for electroconvulsive treatment (ECT)

Adults

Under section 93, the authorised psychiatrist can apply to the tribunal to authorise a course of ECT for a patient if:

  1. the patient does not have the capacity to give informed consent to receive the course of ECT on himself or herself, and
  2. the psychiatrist is satisfied in the circumstances that there is no less restrictive way for the patient to be treated.

For more information about these factors, see Step 3: The tribunal considers the application.

Young people

If an authorised psychiatrist proposes to perform ECT on a young person, they must seek authorisation from the Mental Health Tribunal. Applications to perform ECT on a young person can be made in the following circumstances:

  1. The young person gives informed consent to ECT (as a voluntary or compulsory patient) in writing.
  2. The young person does not have capacity to give informed consent to ECT, and (if voluntary) the person who is legally authorised to consent to treatment for the young person (for example, parent or guardian) gives informed consent in writing to the ECT, and there is no less restrictive way for the young person to be treated, other than with ECT.
  3. The young person does not have capacity to give informed consent to ECT and (if compulsory) there is no less restrictive way for the young person to be treated, other than with ECT.

If a young person has capacity to give informed consent and does not give consent to ECT, the Act requires that ECT not be given. Likewise, where the consent of the legally authorised person is required and consent is not given, ECT must not be given to the young person.

Practice tip – obtaining the service’s report on ECT and reviewing the clinical file

See Getting access to information and the clinical file in practice.

Step 2: The tribunal lists the ECT application for hearing

The listing and hearing process for ECT applications is similar to the process for other hearings, except that the hearing will be conducted by a special division of the tribunal, constituted by a legal member, a psychiatrist member and a community member (ss. 178–179). All ECT hearings must be heard within five business days of the application being received by the tribunal (s. 95(1)).

Urgent hearings

A psychiatrist may request an urgent hearing of an application for ECT (s. 95(2)), if the treatment is necessary to:

  • save the life of an adult patient or a young person
  • prevent serious damage to their health, or
  • prevent them from suffering or continuing to suffer significant pain or distress.

The tribunal must list and complete the hearing of an urgent application for ECT as soon as practicable after receiving the application.

Practice tip – urgent ECT hearings and procedural fairness

  • If the hearing is listed urgently and within 1–2 days of the application and the client has only received the report less than 48 hours prior to the hearing, consider whether to apply for the application to be stood down, adjourned or dismissed and seek your client’s instructions.
  • The tribunal is still bound by the rules of procedural fairness. Check through the file to ascertain the reasons for and evidence of urgency in the tribunal deciding the application (potentially in breach of procedural fairness). This will enable you to consider submissions on the impact of the tribunal’s decision to proceed or not with the hearing, or to adjourn the matter.

Read more about The Mental Health Tribunal – its role and powers.

Step 3: The tribunal considers the application

Under s. 96(1), in considering an application for ECT, the tribunal must:

  1. grant the application, if it is satisfied that:
    1. the patient does not have capacity to give informed consent
      and
    2. there is no less restrictive way for the patient to be treated, or
  2. refuse to grant the application if it is not satisfied of these elements.

Under the Act the tribunal is not bound by the rules of evidence and may inform itself on any matter it sees fit (s. 181(1)(c)). In hearing evidence and making decisions, the tribunal must follow rules of procedural fairness and conduct hearings as expeditiously and with as little formality and technicality as possible. This can include allowing the person an opportunity to access their clinical file and/or speak with a lawyer/advocate.

See the tribunal’s guides to solution-focused hearings and procedural fairness and read more about Procedural fairness.

For more information on Tribunal hearings and the decision-making framework, see The Mental Health Tribunal – its role and powers.

Practice tip

During the ECT hearing, test the evidence of the two factors to be satisfied in s. 96(1)(a).

Does the person have capacity to give informed consent?

The tribunal may only grant an application for ECT where it is satisfied on the evidence before it that the person lacks capacity to give informed consent (s. 96(1)(a)(i)). The rationale behind this test is that, even where a person is under a compulsory treatment order, they should be given the opportunity to give an informed refusal of ECT.

What is capacity?

The Act does not include a specific definition of capacity to consent to ECT. Capacity to give informed consent is defined under s. 68(1) as follows:

A person has capacity to give informed consent under this Act if the person:

  1. understands the information he or she is given that is relevant to the decision
  2. is able to remember the information that is relevant to the decision
  3. is able to use or weigh information that is relevant to the decision, and
  4. is able to communicate the decision he or she makes by speech gestures or any other means.

Under the Act, compulsory patients are presumed to have capacity (s. 70(2)). Therefore, the evidence presented to the Mental Health Tribunal must show that the person does not have capacity (as opposed to the onus being on the person to show that they have capacity).

Section 69 sets out the definition of ‘informed’ consent.

Capacity principles

Whenever a capacity assessment is undertaken (including by the Mental Health Tribunal and the authorised psychiatrist), certain principles must be considered. Capacity is not a fixed state but can fluctuate, and is decision-, context- and time-specific. The principles (s. 68(2)) to be considered by the Tribunal at the hearing, as well as each time a capacity assessment is conducted, are:

  1. A person's capacity to give informed consent is specific to the decision that the person is to make.
  2. A person's capacity to give informed consent may change over time.
  3. It should not be assumed that a person does not have the capacity to give informed consent based only on his or her age, appearance, condition or an aspect of his or her behaviour.
  4. A determination that a person does not have capacity to give informed consent should not be made only because the person makes a decision that could be considered to be unwise.
  5. When assessing a person's capacity to give informed consent, reasonable steps should be taken to conduct the assessment at a time at, and in an environment in, which the person's capacity to give informed consent can be assessed most accurately.

If a capacity assessment is outdated or fails to take into account changes in the person’s situation, it may not be sufficient to satisfy the tribunal that the presumption of capacity has been displaced.

If a capacity assessment lacks detail in relation to a specific type of treatment, it may be possible to argue that it should be set aside and that the tribunal should inform itself specifically on capacity in relation to the type of treatment under consideration.

Practice tips

  • Evidence of capacity assessments: ask the treating team for details and evidence of any capacity assessment, including the information that was provided to the patient, how it was communicated, answers to any questions, time given to consider the information, views of relevant parties, any second opinions, and so on – the clinical file should detail this. If there is no evidence about how the issue of capacity was considered, question the authorised psychiatrist about any assessment they undertook. Make your own enquiries and obtain any positive evidence that your client has capacity to provide informed consent.
  • Don’t confuse an ‘unwise’ decision with incapacity.
  • ‘Lack of insight’ doesn’t necessarily mean incapacity: even though a person doesn’t agree they have a mental illness, they may still have capacity to make a decision about ECT or other alternative treatments.
  • Understand your client’s motivations and reasons: this is useful in making a submission about how and why a person can weigh the information.
  • Lack of information: if a person hasn’t been provided with any information about ECT, question whether capacity (or incapacity) can even be assessed.

Case examples – ‘test’ of incapacity, standard of capacity and evidence required

PBU & NJE v Mental Health Tribunal [2018] VSC 564 (1 November 2018) 

In PBU, Justice Bell stated regarding the capacity test at 134:

It is to be noted that this standard is directed mainly at whether the person has certain abilities (not whether the person has actually chosen to exercise them) (emphasis added)

And at 176–178: 

‘the capacity threshold is a ‘low one’… A capacity test applying to people with mental disability is plain-bread discriminatory on that ground if the standard of functioning required of those persons is greater than the relatively low standard required of people generally. As we have seen, the general capacity standard of the common law requires only that the person, whether mentally disabled or not, is able to understand the general nature, purpose and effect of the medical treatment, transaction or proceeding in question.

And at 182:

and ‘the question is whether the person understands and is able to remember and use or weigh the relevant information, and communicate a decision, in terms of the general nature, purpose and effect of the treatment, not whether the person can make a sensible, rational or well-considered decision’ (emphasis added)

And a 228:

to rebut the presumption of capacity, it is not sufficient to find that a person does not accept or believe the diagnosis that the person has a mental illness or that the person has no insight into the need for treatment. According to the statutory criteria, a person may not have that acceptance, belief or insight yet may have capacity to give an informed consent, although these matters may be factually relevant in the overall consideration. This is important if the capacity criteria and are to be applied in a manner that is non-discriminatory towards and respects the autonomy space of people with mental illness.

Mental Health Tribunal case examples

The VCAT decision of EWL v Mental Health Tribunal (Human Rights) [2014] VCAT 1152 (25 August 2014) confirmed that there is no onus on patients to satisfy the decision maker of their capacity in order to avoid ECT. VCAT also made clear that a person who disagrees that they have a mental illness may nevertheless have capacity to decide whether to receive ECT or some other compulsory treatment.

In the case of QQM [2014] VMHT 58 (27 October 2014) the tribunal held that ‘it would be contrary to the mental health principles under the Act that the test [of capacity] under section 68 should be construed too high or to expect from a patient an overly perfect understanding or articulation as to the nature, benefits or risk of ECT’. In that case, the tribunal was not satisfied the person lacked capacity to give informed consent despite considering his capacity was ‘impaired’ and his ‘understanding of what ECT entailed was rudimentary’.

In the case of RVZ [2014] VMHT 23 (10 September 2014) a majority of the tribunal held that a consistent negative opinion about ECT and refusal to agree to it was not interpreted as an inability to weigh the necessary information. In that case, a majority of the tribunal found the person could weigh the information.

Is there no less restrictive way to treat a person other than with ECT?

In addition to considering capacity to consent, the tribunal can only grant an application for ECT where there is no restrictive way to treat the person (s. 96(1)(a)(ii)).

‘No less restrictive’ – factors to consider

Under section 96(3), in determining whether there is no less restrictive way to treat a person, the tribunal must, to the extent that is reasonable in the circumstances, have regard to the matters specified in section 93(2). These are the same factors that the authorised psychiatrist must consider in deciding whether to make an application for ECT.

These factors are:

  1. the views and preferences of the patient in relation to ECT and any beneficial alternative treatments that are reasonably available and the reasons for those views or preferences, including any recovery outcomes the patient would like to achieve
  2. the views and preferences of the patient expressed in his or her advance statement
  3. the views of the patient's nominated person
  4. the views of a guardian of the patient
  5. the views of a carer of the patient, if psychiatrist is satisfied that the decision to perform a course of ECT will directly affect the carer and the care relationship
  6. the likely consequences for the patient if the ECT is not performed, and
  7. any second psychiatric opinion that has been obtained by the patient and given to the psychiatrist.

The factors that need to be considered when determining whether there is no less restrictive way to treat the young person are slightly different to those for adults, and include the views of a person who has the legal authority to consent to their treatment, and the Secretary of the Department of Human Services, if the young person is subject to a custody or guardianship to Secretary order (s. 94(3)).

‘No less restrictive’ and treatment preferences

Even though a person on a compulsory treatment order can be provided with treatment against their wishes, they can still state a preference between different treatments. For example, even though someone may not wish to have any treatment, they may still prefer medication over ECT if these are the only options.

Given the Act promotes, amongst other things, supported decision-making, dignity of risk and least restrictive treatment (see the mental health principles under s. 11), it is arguable that the tribunal should not grant an application for ECT contrary to a patient’s views and preferences unless all potential alternatives have been tried.

Where there are treatment options other than ECT reasonably available and the person prefers that alternative treatment, the tribunal should be directed to this treatment as less restrictive options. This finding can be made even if there is a degree of risk involved and the person accepts that risk (for example, a longer hospital admission).

However if an alternative treatment is unrealistic or fanciful or there are significant risks to the person’s health if that alternative treatment is adopted, the tribunal may find that it is not reasonably available alternative treatment option. This was the case in the VCAT decision of EWL v Mental Health Tribunal (Human Rights) [2014] VCAT 1152 (25 August 2014).

Practice tip – Assessing client's situation and improvement

Ask your client about whether they feel any differently since their admission to hospital and whether their situation has improved. It can be helpful to ask when the last medication change was introduced, and, if they were previously in the high dependency area, when did they move to the low dependency area. This can assist you in arguing their situation has improved and will continue to do so without the need for ECT.

Practice tip – Diagnosis and assessment of treatment options

Review the medical file (including the ECT report prepared for the hearing) and look for details of the diagnosis and when that diagnosis was made, as well as treatment notes.

Seek information (and test this during a hearing) about which treatments are available, have been suggested, tried, and their effects, from:

  • your client
    • including instructions on any preferred treatment
    • whether they would accept alternative treatments they may have previously refused.
  • the treating team.

Also test evidence of what the risk of deterioration is if ECT is not provided, as this is a relevant factor to be considered by the tribunal when it determines whether there are less restrictive alternatives available (ss. 96(3) and 93(2)). A reduced or low risk of deterioration would provide additional support for the argument that there is an alternative treatment that may take longer but could still be effective (thus removing the need for immediate ECT).

Case examples – when is ECT the ‘less restrictive treatment’?

PBU & NJE v Mental Health Tribunal [2018] VSC 564 (1 November 2018) 

Justice Bell’s comments regarding no less restrictive treatment test

Justice Bell took the view that the no less restrictive treatment test must take a holistic view of recovery and self-determination at 252:

The no less restrictive treatment test is therefore intended to operate under the Mental Health Act in a quite different way to the former best-interests test.  It involves a different conception of the relationship between medical authority and the patient: it is one that respects, to a much greater degree, the patient’s right to self-determination, to be free of non-consensual medical treatment and to personal inviolability; one that is intended positively to promote patient participation and supported decision-making; and one that, in appropriate cases, incorporates recovery (and not simply cure) as an important therapeutic purpose in a holistic consideration of the person’s health (broadly understood)

And at 103:

In the mental health context, ‘recovery’ is a term of art. It reflects a contemporary understanding of ‘health’ that is broad — one that requires the social and personal circumstances of the person to be considered and one that is not focused exclusively on preventing and curing illness or disease as such.  It emphasises the significance of respecting and promoting patients’ self-determination over time and ensuring that patients avoid dependency and institutionalisation.  

Mental Health Tribunal case examples

In the case of EWL v Mental Health Tribunal (Human Rights) [2014] VCAT 1152 (25 August 2014) the VCAT found the only other option to ECT involved experimentation, based on guesswork, likely hospitalisation and significant risk and therefore this did not constitute a viable alternative to ECT (see sections 79 and 86 of the decision).

In the Mental Health Tribunal decision of QQM [2014] VMHT 58 (27 October 2014) the tribunal found that best interests is not the test for ‘least restrictive treatment’. It noted that ‘ECT may well carry the best prospect of accelerating [the client’s] recovery and facilitating his discharge home … [and] the use of ECT may have been in [the client’s] best interests. However, this is clearly not the test under s. 96(1)(a)’.

In the case of IWH (No 2) [2015] VMHT 9 (14 January 2015) the tribunal found that ECT was not the least restrictive treatment, even though they found the person lacked capacity and didn’t accept she had a mental illness. The requirements of section 96(1)(a)(ii) of the Act were not met where the person had a strong preference for oral or depot medication over and above ECT, even it that meant a longer stay in hospital. The person’s medication levels were not yet therapeutic and the tribunal found the treating team had not given an adequate trial of oral or depot medication. The tribunal did not grant the application for compulsory ECT and considered there was insufficient evidence that the treating team had considered the person’s preference for oral medication rather than ECT. It also noted the treating team had not adequately considered her views about ECT and her reasons for those views which were based on her past experience of its side effects.

Step 4: Tribunal makes an order specifying number of treatments and completion date

The tribunal order must specify the number of treatments to be performed and the date by which the course of ECT must be completed (s. 97).

A ‘course of electroconvulsive treatment’ is defined as a number of treatments that does not exceed 12, which must be performed within a period of time of six months or less (s. 91(1)(a) and (b)). The period of time starts on the date that the tribunal approves the performance of treatment (s. 91(2)(b)).

Section 98 confirms that ECT must not be performed (at any time before or during a course of treatment) if a person withdraws their informed consent to the treatment, or develops the capacity to consent and subsequently does not consent. To continue with the ECT in this case would be unlawful.

Practice tip – Number and duration of treatments

While the tribunal can authorise up to 12 treatments, and for a duration of six months, these should not be considered to be defaults. The number of treatments and duration sought by the authorised psychiatrist must be supported by evidence.

Step 5: After the Mental Health Tribunal hearing – options

If the tribunal makes an adverse decision that is not supported by the evidence or, in your view, fails to correctly apply the law, your client may apply to VCAT for review of the decision (s. 201). You should request a statement of reasons from the MHT if your client intends on seeking review by VCAT. A review to VCAT is a hearing de novo. You should also consider applying for an interim injunction at VCAT to stay the operation of the Mental Health Tribunal’s authorisation.

If VCAT does not apply the law correctly, your client can appeal to the Supreme Court on a point of law. You should obtain a statement of reasons from VCAT and consider whether the matter is a suitable vehicle for an appeal to the Supreme Court on an error of law. Further advice (for example, in relation to Victoria Legal Aid funding) may need to be sought.

Alternatively, a person can also apply to the Mental Health Tribunal to revoke their treatment order or temporary treatment which, if successful, would mean that compulsory ECT can no longer be given. Read more about Challenging a (temporary) treatment order.

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Please note that the content of this page is being reviewed in response to the recent decision of the Supreme Court of Victoria in PBU & NJE v Mental Health Tribunal [2018] VSC 564 (1 November 2018)
 
See Justice Bell’s comments regarding the capacity test in ECT hearings
 
See Justice Bell’s comments regarding the no less restrictive treatment test

ECT checklist

Seek full instructions on your client’s views and wishes

Reviewing available evidence (including obtaining a second opinion where appropriate) will assist you to advise your client on their options, negotiate with the treating team, work with other supports (such as housing providers) and effectively appear in the tribunal

Thorough consideration of the material helps you to:

  1. understand the perspective and evidence of the treating team, and whether it has sufficient or correct information about your client, and
  2. decide whether negotiating an alternative outcome for your client is possible.

This enquiry is critical, to ascertain the full history and understand the process by which treatment decisions were made – it can be tested and further explored through evidence.

Identify your client’s situation

Age: Is the person an adult (18 or older) or a young person?

  • Different provisions apply to ECT for adults and ECT for young people (which always need tribunal authorisation).

Diagnosis

  • What diagnosis of mental illness does the person have, that requires treatment?
  • Does the person have any other medical conditions that require managing?

Compulsory status

  • Is the person voluntarily receiving treatment for mental illness or are they subject to an order for compulsory treatment (e.g. A treatment order)?

Stage of ECT treatment

  • Is ECT already being administered? Where it appears that a person may have regained capacity to give informed consent and are refusing ECT or have withdrawn their consent, advocating for ECT to stop with the treating team may be appropriate. This may involve requesting a new capacity assessment or a second opinion. Alternatively, it may be possible to seek injunctive relief from the Supreme Court.
  • Otherwise, it is likely the person will need help responding to an ECT application before the tribunal.

Consent to ECT

  • Does the adult person consent to ECT? If so, ECT may proceed. If the person does not consent to ECT, then you will need to explore whether the person has the capacity to give an informed refusal.

Instructions on criteria for ECT that the tribunal must consider

  • Whether they have the capacity to give informed consent:
    • What information were they given about ECT?
    • How long did they have to consider this information and consult with anyone else they desired?
    • How are they using or weighing up that information to come to a decision? What are the reasons for their views and have these views been consistent?
  • Whether there is another less restrictive way for them to be treated:
    • What other alternative treatments is the person considering and why?
    • What is the reason for the person’s views about treatment?
    • What factors are important for them? Would they be prepared to stay in hospital longer and try other treatments first?
  • Do they have an advance statement, a nominated person or other support person to assist or provide more information?

Treatment

  • What treatment (including previous ECT) has the person received, if any, so far?
  • What have been their experiences of treatment (particularly any proposed treatment)?
  • Would they agree to treatment, or another form of treatment?
  • Does a nominated person or guardian or carer have a view on or preferences for treatment?

Mental Health Tribunal authorised ECT

  • Has an application been made to the Tribunal? If treatment is being proposed it may be possible to advocate on the person’s behalf to the treating team as well as representing them before the Mental Health Tribunal.

Is it an urgent application?

  • If a hearing by the tribunal is pending.
  • If a decision has been made by the tribunal, what are the options for review/appeal or to negotiate with the treating team? This will determine whether advocacy should be directed at the treating service and/or the Mental Health Tribunal, VCAT or the Supreme Court.

Location and duration

  • If ECT has been authorised, what is the proposed number of treatments?
  • When should the course of treatment be finished?
  • If this is a new application, is the number and duration of treatment supported by the evidence?

Living arrangements, supports

  • Where does the person currently or usually live?
  • What supports do they have, what family members and friends are involved in their lives?
  • Does the person currently have any contact with a health service (including a mental health service) or other service?

Accessing the medical files and clinical report

  • Are the files and clinical report consistent with your client’s instructions?
  • Is the report sufficiently detailed, and provide information about capacity assessment, as well as plans for treatment?
  • What type of order and duration are recommended (inpatient or community)?
  • What information is there about treatments that have been tried, or proposed, and their success or likely success?

Hearings at the tribunal – listing and procedures

Division 5 of the Mental Health Act 2014 (Vic) sets out the procedure of the Mental Health Tribunal, including the rules that apply to its conduct of hearings and decision-making. For more information about the role and powers of the tribunal under the Act, see The Mental Health Tribunal – its role and powers.

Applications to the tribunal and listing of hearings

A hearing may be initiated:

Applications to the tribunal must have the appropriate form and content and be lodged as specified in the rules (s. 186). The application may be rejected by the tribunal if it is made by a person not entitled to apply, lodged late or otherwise does not comply with the tribunal’s requirements (s. 187). Applicants may also seek leave to withdraw their application, prior to a determination on it, or applications may be struck out if the applicant fails to appear (s. 188).

The tribunal will list the hearing as soon as practicable after the relevant application is made. There is provision for urgent listings, where required. The Act has specific time frames for listing electroconvulsive treatment (ECT) hearings.

Practice tip – procedural fairness of urgent applications

If your client is on a treatment order which is soon to expire and the psychiatrist does not apply to the tribunal for a further order within 10 business days before its expiry, there is a risk of breach of procedural fairness, particularly if the client has not been given the report and offered access to their file a minimum of 48 hours’ prior to the hearing.

See Procedural fairness and ECT Tribunal hearings – process and criteria.

Location, frequency and duration of hearings

Most tribunal hearings are conducted in person, in meeting rooms at the hospital or community mental health service where the person is receiving their treatment. Tribunal hearings are scheduled regularly – often weekly and sometimes twice weekly – at all public psychiatric hospitals and many community mental health services around Melbourne and throughout Victoria.

Practice tip

If the tribunal does not attend your client’s particular mental health clinic, the hearing will usually be held at the nearest public hospital’s psychiatric inpatient unit.

Some hearings (such as ad hoc hearings about ECT) are conducted by video conference between the mental health service and the tribunal offices, where the members are based, in Melbourne. Video conferences are not recorded.

Each hearing is generally allocated one hour. If an interpreter is present, typically an hour and a half is set aside. If the hearing is likely to take longer, the complex case listing guidelines are relevant. Note that clients who require an interpreter often require a longer hearing, as do hearings where an application for a treatment order is combined with an application for ECT.

Complex case listing guidelines

The tribunal registry must be advised if the usual hearing time of one hour will not be sufficient because of the complexity of the case. It can be advised of this by the person who is the subject of the hearing, their representative or the treating mental health service. The person advising that the case is complex must provide a written outline of the relevant issues and written submissions of any legal arguments that will be raised, as well as estimated time required, names of those to attend the hearing and role or relationship, any basis for urgent hearing and other relevant information.

Read more about the Tribunal’s complex case management procedure.

Adjournments

The tribunal may adjourn a hearing if there are valid reasons, for example, if a person is requesting legal representation. Ordinarily an adjournment will only be granted if it does not take the date of the rescheduled hearing beyond the expiry of the existing order.

The tribunal can only adjourn a hearing to a date beyond the end of a temporary treatment order or treatment order if there are exceptional circumstances. 'Exceptional circumstances' is not defined. The tribunal will determine whether there are exceptional circumstances on a case by case basis. If the tribunal does grant an adjournment in this situation, it will extend the existing order, but only to a period of not more than 10 business days, and only once (s. 192).

Practice tip

  • If the treating team requests an adjournment, or the tribunal is considering adjourning of its own motion, (for example, in order to get further evidence from the treating team before making its decision) consider obtaining your client’s instructions about opposing such an adjournment.
  • You can make submissions to the effect that the tribunal, as it is a primary decision-maker, should revoke the order rather than adjourn, if there is insufficient evidence before it in order to be satisfied the criteria apply.
  • Adjourning hearings where the tribunal will extend the duration of a person’s order has important implications for procedural fairness. See Procedural fairness.

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Access to information and the clinical file

Right to access information before a hearing

The Mental Health Act 2014 (Vic) states the authorised psychiatrist ‘must give a person’ subject to an order access to ‘any documents in its possession in connection with the proceeding’ at least 48 hours before the hearing (s. 191(1)). This is a separate and distinct right from the access rights afforded under Freedom of Information laws. It is also a considerably quicker process.

The obligation includes giving the person:

  • a copy of the report prepared by the authorised psychiatrist for the hearing
  • an opportunity to access their clinical file (this arguably extends beyond the documents that the service may choose to put before the Mental Health Tribunal).

Your client’s right to access information extends to you, as their lawyer, acting on their behalf. You should obtain your client’s signed authority and provide a copy to the service on request.

The service should also explain the report (and any other information given to the person) in a way they can best understand, including using an interpreter where required (s. 8).

Practice tips

  • A person should not need to request access to documents – the obligation is on the service to provide a person with a copy of the report, at the very least, and to offer access to their clinical file.
  • The tribunal will often enquire as to whether the person has had sufficient time to read the report and provide instructions. It may stand the matter down if the person needs more time to read the document. It may also do the same if the report has not been explained to the client with an interpreter in a language they understand.
  • In video conference hearings in particular, where only limited information from the file is given to the tribunal, you can request access on your client’s behalf to the entire clinical file. The report, after all, is a summary of, and will make reference to, details contained within the progress notes on the file.

If a person has only been handed their report but it hasn’t been explained to them, consider making submissions on the impact of the hearing on procedural fairness for the person.

See Getting access to information and the clinical file in practice.

Failure to provide information at least 48 hours before the hearing

If the mental health service has failed to comply with the 48-hour time frame for giving the client the report, seek your client’s instructions about whether they feel they have had enough time to prepare for the hearing. Ask whether they wish to proceed with the hearing or request an adjournment for more time to prepare, consistent with the right to a fair hearing under the Victorian charter (s. 24) and procedural fairness under the Act (s. 181(1)(b)).

Practice tips

  • Seek your client’s instructions if they have not been given the report and/or offered access to their file 48 hours before the hearing. It may also be worth considering submissions on revocation of the person’s order given the failure to provide procedural fairness. This is particularly relevant if adjourning the hearing would mean having to extend the person’s order.
  • When the client wishes to proceed with the hearing because, for example, adjourning the hearing risks prolonging their detention in hospital, the procedural fairness concerns can be raised directly with the tribunal as a preliminary matter, or pursued by way of a complaint, either directly to the mental health service, or to the Mental Health Complaints Commissioner.

See Procedural fairness.

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Common terms and abbreviations in clinical files

Term/abbreviation

Meaning

ADLs

Activities of daily living (e.g. dressing, showering, eating, cooking etc)

Ax

Assessment

BD

Twice daily (medication frequency)

BPAD

Bipolar affective disorder

BPD

Borderline personality disorder

C/O

Complained of

CAT team/CATT

Crisis Assessment and Treatment team

CCU

Community care unit – supported accommodation for people with mental illness, with onsite mental health clinical services

CLZ

Clozapine an (anti-psychotic medication)

D&A

Drugs and alcohol

D/C

Discharge (from hospital, compulsory order)

Depot

Medication given by injection

Dynamic factors

Factors that can change

EPSE

(Extra-pyramidal) side effects

ETOH

Alcohol

FTD

Formal Thought Disorder

HMO

Hospital medical officer (who may be the person’s treating doctor, under supervision of the authorised psychiatrist)

H/O

History of

Hx

History

IMI

Intra-muscular injection (also known as ‘depot’)

MDE

Major depressive episode

MSE

Mental state examination (including assessment of appearance, mood, thought content, behaviour, insight and judgement, and overall demeanour)

MST

Mobile support team

Mx

Medication

NAD

No abnormality detected / No acute distress

OOB

Out of bed

PARC

Prevention and recovery centre – residential unit in the community for short-term treatment – often a step-down from hospital

PRN

‘as needed’ (as distinct from a regular dose of medication)

Protective factors

Things which can reduce the likelihood of a negative outcome, e.g. by reducing risk

RPN

Registered psychiatric nurse

SAD

Schizoaffective disorder

SECU

Secure extended care unit – locked mental health inpatient unit which provides rehabilitation and treatment, often long-term

SI/SH

Suicidal idealation/suicidal harm

SRS

Supported residential service

Static factors

Factors that do not change

TDS

Three times daily (medication frequency)

THC

Cannabis/marijuana

Tx / Rx

Treatment

UDS

Urine drug screen

Ψ

Psychiatrist/psychiatric

Ψ Reg

Psychiatric registrar

1/51, 2/52

Weekly, fortnightly

1/12, 2/12

Monthly, bi-monthly (every two months)

15/60, 60/60

Every 15 minutes, every hour (usually a reference to frequency of nursing observations required whilst an inpatient on the ward)

Also be aware of HoNOS – the Health of the Nation Outcome Scales, which cover a range of domains including psychiatric symptoms and relationships, and set out a series of scales, with the format:

0 = no problem
1 = minor problem requiring no action
2 = mild problem but definitely present
3 = moderately severe problem
4 = severe to very severe problem

Getting access to information and the clinical file in practice

Before the hearing, your client has the right to review any documents in the possession of the treating service that are connected with the tribunal hearing. These documents will include the report on compulsory treatment as well as the clinical file.

Once you have instructions to act, you can seek your client’s consent to review their clinical file.

Explain to your client their right to access their file and the benefits of doing so before the hearing – checking evidence, verifying information in the report, seeking corroborating accounts of what they describe.

Some mental health services and staff may be more familiar with the access provisions and with requests for patient files prior to the Mental Health Tribunal hearings than others.

Liaise with service staff to request your client’s clinical file. If necessary, explain your client’s right of access which extends to you, as their legal representative, subject to any application to withhold information.

Hospital inpatient files generally only contain information and notes that relate to the person’s current admission, and probably also a discharge summary from the last admission. Long-term inpatients will commonly only have the last month of progress notes available on the hard copy of the clinical file. Older notes can sometimes be accessed by arrangement with the treating team.

Community mental health service files are usually multi-volume and will contain inpatient notes from any admissions to the related local inpatient mental health service. Typically only the most recent volume would be provided to the tribunal for their hearing. Due to the size of the file, it can sometimes take extra time for the service to arrange access.

Practice tips

  • You can review the file either alone or with the client, but if you do so with your client this may take longer. If you review the file alone you should then seek further instructions from your client if new issues arise or need clarification. Some treating services may require a written authority signed by your client before you will be granted access to view the file alone.
  • You can also help facilitate your client’s own access independently.
  • Your client may become upset about the content of the report or clinical file. Remind them that this is the treating team’s version of events, and that they will have an opportunity to put forward their own version.
  • Some hospitals and community mental health services now have electronic rather than paper files. These can take longer to review so allow yourself extra time. Check the clinic’s process for providing access as some may need to prepare a separate CD-ROM from which to access the file. Access will generally be in the form of a bookmarked PDF file which may need to be viewed on the clinic or hospital computer. Some services will print a limited amount of pages.

Difference with access rights under the Freedom of Information Act 1982

Your client has an automatic right to access documents that are in the possession of the treating service and are connected to the tribunal hearing (s. 191(1)). This right arises whenever your client has a hearing before the tribunal.

Section 191(1) imposes a positive obligation on the treating service, namely to give your client access to the information. As such, it must give your client a copy of the relevant reports and should offer your client access to the clinical file without prompting. This is different from the Freedom of Information Act 1982 (Vic) (FOI Act) which requires a person to make a written application before gaining access to information.

It may be useful to note s. 6A of the FOI Act which states that the FOI Act does not affect the operation of any other law that enables a person to access a document. This means the Mental Health Act overrules the FOI Act whenever the two laws conflict.

The treating service may also attempt to restrict you or your client’s access to information under FOI Act.

See Non-disclosure of documents in limited circumstances for more information.

Reviewing the clinical file and evaluating the evidence

The person’s clinical file is key evidence before the tribunal while the report on compulsory treatment is generally just a summary of that evidence.

Reviewing your client’s clinical file before the hearing is vitally important for a range of reasons, including that:

  • it gives a more detailed picture of the circumstances surrounding the making of the treatment order, including what information was communicated to the treating team and by whom (such as risks reported by family or other third parties)
  • it provides more detail on the progress of your client’s treatment whilst at the mental health service or hospital, and the treating team’s views about and plans for treatment
  • it documents how and to what extent, your client’s views and preferences have been considered by the treating team
  • there may be information in the file that is missing from the report which is helpful to your client’s case (for example, their circumstances have improved since the report was written)
  • there may be inconsistencies between what the report states and what the original entries in the clinical file reflect (for example, compliance and engagement with services, views about and attitude regarding treatment, allegations of harm or serious consequences or risks)
  • you may find information that corroborates your client’s instructions or their version of events (for example, allegations of serious deterioration or harm, voluntary admissions in the past)
  • they can contain information that the client may not be able to provide themselves (such as contact details for a helpful witness).

Practice tip

As the file notes are contemporaneous records, they should typically be accepted for their accuracy over and above any recollections or hearsay provided by the service in oral evidence.

Key information to look out for

Where time is limited, even a quick look through the file is important. Scan through the file for key documents and entries:

  • legal documents (in the ‘legal’ section of the file) – check all the relevant documents are present (for example, the assessment order, temporary treatment order or variation order). Also, check the validity of those documents, including compliance with requirements that specific persons make the order (for example, the assessment order and temporary treatment order are not made by the same psychiatrist (s. 48)) and relevant time frames as the case requires (for example, making a temporary treatment order before the assessment order expires). Deficiency is these documents may mean there is a jurisdictional argument to make
  • admission notes and assessment at the time of admission to hospital and examination and assessment by the authorised psychiatrist for the making of the temporary treatment order
  • history of community treatment – in particular compliance, engagement and voluntary treatment
  • progress notes which document any adverse incidents referred to in the report or mentioned by the client (for example, threats made, refusal of medication, any suggestion of violence or absconding) and positive progress (for example, improvements in mental state, compliance, plans for discharge)
  • discharge summaries from past hospital admissions
  • advance statement or clinical planning documents such as a wellness plan, safety plan, recovery plan or crisis assessment plan
  • referrals for accommodation or other services
  • clinical reviews or review summaries (where relevant)
  • assessments of capacity – particularly relevant for ECT
  • reviews by the consultant psychiatrist and any second opinion
  • risk assessments, including specialist assessment reports by Forensicare (often in the ‘correspondence’ section of the file)
  • correspondence from relevant agencies (for example, support services, neuropsychologists and other medical or allied health professionals)
  • leave granted (if an inpatient) and entries confirming success or otherwise of leave
  • most recent progress or nursing notes or psychiatric reviews that comment on mental state and compliance – compare these with entries at admission.

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Non-disclosure of documents in limited circumstances

If the service proposes to withhold certain information or documents from a person, they can only do so on very limited grounds and with the approval of the tribunal.

If the authorised psychiatrist believes that disclosure of certain information on the person’s clinical file may cause serious harm to that person or to someone else, they may apply to the tribunal for a determination that disclosure of that particular information be denied (s. 191(2)–(4)). That application should be sent to the tribunal at least two business days before the hearing on the prescribed form.

Practice tip

Serious harm is a very high threshold. It represents significantly narrower grounds for non-disclosure than in the former Act (which provided additional grounds of confidentiality and unreasonable disclosure of personal information).

Difference between restricting informat​ion under the Mental Health Act 2014 and the Freedom of Information Act 1982

The grounds to restrict a person’s access to information under the Mental Health Act and the Freedom of Information Act (FOI Act) are different. Under the FOI Act, access can be restricted if access would cause harm, or information was provided in confidence and access would reasonably be likely to impair the ability of the treating service to obtain similar information in future. The treating service cannot restrict access under the FOI Act if it would be available under the Mental Health Act.

It may be useful to note s. 6A of the FOI Act which states that the FOI Act does not affect the operation of any other law that enables a person to access a document. This means the Mental Health Act overrules the FOI Act whenever the two laws conflict.

The treating service may also attempt to make it a requirement for you to make a written request under the FOI Act before accessing information.

See Getting access to information and the clinical file in practice for more information.

Preliminary ‘non-disclosure’ hearing

The tribunal will normally decide whether to grant the application by conducting a brief preliminary hearing in the absence of the person themselves (but with the lawyer and service representative present). The lawyer may also have to give an undertaking not to disclose the source or details of the information to their client.

The tribunal will often ask if the information is something that the service needs to rely on in making their case. If not, the tribunal may also decide that the information itself is not relevant to the hearing before it. In this case the authorised psychiatrist will often withdraw the application and the tribunal will proceed with the hearing without either it or the person considering the withdrawn information in the file.

If the tribunal determines the threshold is met and grants the application and denies disclosure to the person, the tribunal has discretion whether or not it will proceed with the substantive hearing and whether it will look at that information in the hearing (s. 191(3)).

If it decides it would not cause serious harm, then it can order the mental health service give the person access to the information. In that case, it also has the power to adjourn the hearing for up to five business days and extend the order accordingly if necessary (s. 191(4)).

Practice tips

  • Pending determination of any non-disclosure application by the tribunal, the service will usually redact the particular information from the entries in the file, but must provide access to the remaining parts of the file.
  • Advise your client if an application for non-disclosure has been made and the risk they may not get to see that information. Obtain your clients instructions about opposing the application or otherwise, and making submissions on the tribunal’s exercise of discretion consistently with its procedural fairness obligations.

Submissions on breach of procedural fairness

  • Without the opportunity to rebut any allegations within or respond to information that has been withheld from your client under s. 191(3), it would arguably breach the right to procedural fairness and the fair hearing right under s. 24 of the Charter if the tribunal decided to exercise its discretion to look at that information. It is arguable that laws relating to compulsory treatment should be strictly interpreted in favour of the person affected by them, due to their restriction of personal freedom (for example, Wilson v Mental Health Review Board [2000] VSC 404; MM v Mental Health Review Board (1999) WASC 1005).
  • If a person is unable to have access to information that directly affects their interests (such as allegations of harm) and which is then relied upon by the tribunal, then there is a breach of procedural fairness. This point was considered by a Supreme Court case in Western Australia, which considered a decision of the mental health review board – in that case the board’s decision was quashed (EO v Mental Health Review Board [2000] WASC 203).

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Report on compulsory treatment

The Report on Compulsory Treatment is the report that the treating psychiatrist, together with the treating team, must prepare for a treatment order hearing (irrespective of how the hearing was initiated) (Mental Health Act Rules 2014, r. 14) and which summarises the treating team’s evidence as to why a treatment order should be made (r. 13), including:

  • the person’s personal and clinical background
  • why the psychiatrist believes the treatment criteria apply
  • why the person was put on a treatment order
  • what happened shortly before they were admitted to hospital or put on the treatment order
  • what mental illness the psychiatrist has diagnosed and the symptoms observed
  • the treatment being given and its effects on the symptoms
  • the treatment that the psychiatrist plans to provide in the future
  • why the psychiatrist thinks that treatment is needed and for how long
  • what the psychiatrist thinks would happen if the person did not get that treatment
  • the person’s views and preferences about treatment
  • whether the treatment can be obtained in the community
  • why the psychiatrist thinks the person cannot get the treatment voluntarily (and so needs to be on a treatment order to get that treatment)
  • the proposed duration of the order, and why.

The report should also include a person’s advance statement and any second psychiatric opinion (Mental Health Act Rules, r. 14).

Hearings regarding electroconvulsive treatment (ECT) require preparation of a specific report.

Practice tip

Check if your client has been given a copy of the report at least 48 hours prior to the hearing (s. 191(1)). A member of the treating team should have also explained to the person the contents of the report (with an interpreter if necessary), in accordance with section 8 of the Mental Health Act 2014 (Vic). For more information, see Access to information and the clinical file.

See also the Mental Health Tribunal: Downloadable template reports and instructions.

Going through the report with your client

It’s important your client understands what evidence the treating team are putting forward about each of the criteria, and the type and duration of the order sought, and that they have the opportunity to respond to what the treating team have said.

Practice tip

Your client may find this process difficult and distressing, particularly if they disagree with much of the contents of the report. Reassure your client that the report is only the treating team’s version of events, and they will have an opportunity to put forward their own version. You can also explain that you can assist them in doing this.

Try to elicit your client’s responses to the report, in particular their views about:

  • mental illness and the symptoms the psychiatrist says justify this conclusion
  • past issues or specific incidents in the report (including aggression or allegations of harm to themselves or others) when they occurred, in what context and why they are no longer a concern
  • allegations of non-compliance or relapse in the past and their explanation or context for what occurred
  • why the situation would be different now, and any protective factors that mitigate against the consequences becoming ‘serious’
  • the accuracy of the information and allegations in the report and the source of that information
  • the specific treatment(s) proposed and any other views and preferences about medication or other treatment
  • the plan the treating team have proposed for treatment follow up (consultation with the psychiatrist, appointments with a case manager)
  • any other relevant information that is not in the report.

For more detail about engaging with your client on each of the four criteria you can refer to the ‘Discussion points’ for each of the four treatment criteria. You can also get further information on the type and duration of the order to assist you to get relevant instructions for each of these issues.

Practice tips

  • Arrange to meet with your client once they have received a copy of the report on compulsory treatment so you can make sure you cover off the issues raised by the treating team.
  • Check whether your client has been given a copy of the report on compulsory treatment and had it explained to them (including with an interpreter, where required) at least 48 hours before to the hearing (ss. 191, 8).
  • If your client needs an interpreter, the clinic or hospital may be able to arrange an interpreter to attend your appointment. If not, ask them for a room with a phone that has a speaker phone function so you can call an interpreter.
  • You can request a copy of the report either from the client themselves directly, or from the person who co-ordinates the Mental Health Tribunal hearings at the hospital or community mental health service. You may need your client’s written authority for release of information to access the report and other information, such as their clinical file.

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What happens at a Mental Health Tribunal hearing

Hearings are to be conducted ‘as expeditiously and with as little formality and technicality as permitted by a proper consideration of the matters before it’ (s. 181(1)(d)). Given the private information being discussed, hearings are closed to the public. Generally, all of the participants sit around a large table – the three members of the tribunal, the person who is subject to compulsory treatment and their lawyer and/or advocate if they have one, representatives of the treating team, and any other support people the consumer wishes to attend. If the hearing is conducted by video conference, the tribunal members will be at a table in the Tribunal’s offices, while the other participants are at the hospital or service.

Prior to the hearing

The tribunal members will have spent some time immediately before the hearing reading through the available documents, which generally consist of:

  • the report prepared by the treating team at the community mental health service or hospital which summarises the team’s view of why the relevant criteria are met and what order they wish the tribunal to make (for example, community or inpatient order, duration of that order)
  • the person’s clinical file (or recent extracts from the file which have been sent to the tribunal, in the case of a video conference)
  • any other written information given to the tribunal for the hearing.

Read more about Getting access to information and the clinical file in practice.

At the hearing

The tribunal will consider both oral evidence presented by the parties and others, as well as written evidence such as the report prepared by the service and the person’s clinical file. There is no formal requirement about the order in which evidence is presented or submissions made. The tribunal members will take turns to ask questions of all participants. The lawyer will be given an opportunity to make submissions. The lawyer and the person themselves can also ask questions of the treating team. Although the hearing may be informal, the hearing must still involve thorough adducing and testing of the evidence.

Key issues in the hearing

Key issues in a treatment order hearing will include:

  • whether the four treatment criteria are all met
  • if all the criteria are met, which type of treatment order (community or inpatient) should be made
  • the duration of the order.

In making such decisions, the Mental Health Tribunal must have regard to each of the considerations in section 55(2), ‘to the extent that it is reasonable in the circumstances’, including the person’s views and preferences, the person’s advance statement and any nominated person’s views.

Practice tip

  • Revocation of an order requires a finding by the tribunal that any one (or more) of the four treatment criteria are not met.
  • There may also be jurisdictional issues. For example, there may be some defect in the assessment order or temporary treatment order documents, or the person’s order may have already expired. Some errors can be corrected by the tribunal under s. 361 but other cannot, such as errors that relate to 'mandatory requirements' of the Mental Health Act. If the tribunal determines that it does not have jurisdiction to determine the case, the order or documents containing the error will be considered invalid. This could mean that the client's order will fall away. In this case, there is a risk the treating team may take steps to make your client subject to compulsory treatment by making an assessment order following the hearing and this could delay your client being able to argue their case before the tribunal for up to another 28 days. You should try speaking with the authorised psychiatrist to reach an agreement that would allow your client to continue treatment, if required, without a treatment order.
  • The tribunal can hear and determine multiple matters for the one person (s. 190). For example, applications for compulsory electroconvulsive treatment (ECT) as well as for a treatment order can sometimes be heard together in one, longer hearing. In that case, the tribunal usually commences with the treatment order hearing before considering the ECT application.
  • Similarly, a person’s application for revocation of their (temporary) treatment order can be heard and decided at the same time as an automatic treatment order hearing or the service’s application for a treatment order.

For more information about preparing for and appearing at a hearing, including accessing documents, applications for non-disclosure and reviewing the clinical file, see Preparing for and appearing at a Mental Health Tribunal hearing.

The tribunal’s decision

Once evidence is concluded, all the participants will leave the room to enable the tribunal members to deliberate and make their decision. In the case of a video conference, the sound is muted and the screen blanked so the tribunal members cannot be seen.

The presiding member is the legal member, who must decide any questions of law (s. 196). Questions of law may also be referred by the tribunal to the Supreme Court (s. 197). Other questions that arise must be decided by a majority of members (s. 195).

The tribunal members will typically take around 10 minutes or so to make their decision.

The participants are then called back in so the tribunal can give its decision and any oral reasons. Each party receives a written copy of the tribunal’s order (s. 195), which also informs them of their right to request a written statement of reasons within 20 business days (s. 198) and to apply to VCAT for a merits review of the decision within 20 business days of either the hearing finishing, or the statement of reasons being given (s. 201).

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The Mental Health Tribunal and the Department of Health and Human Services websites also have useful information about Mental Health Tribunal hearings:

Who can attend the hearing

Hearings are closed to the public (s. 193) and the name and other details identifying a person who is the subject of a hearing before the tribunal cannot be published without the written consent of the president (s. 194).

The person who is the subject of the proceeding and their treating psychiatrist (the mental health service’s representative) are parties to the hearing. Other people may apply to be joined as a party, but this rarely occurs in practice. The tribunal decides this application.

The person has the right to appear and can be represented by anyone of their choosing, including a lawyer (s. 184(3)).

Other people who may attend the hearing as representatives of the mental health service include the person’s contact nurse (if they are in hospital) or their case manager. The consultant psychiatrist or other support workers can sometimes also attend.

Third parties attending at a hearing

Hearings are closed to the public and, while people such as family, carers and support people or a nominated person may be invited to participate, they do not have an automatic right to appear. Sometimes a person may have support people they wish to invite, or family members may have been contacted by the person’s treating team. At other times, the treating team may request medical or nursing students to attend.

The person’s consent should be sought before third parties are invited in to the hearing. In general, tribunal members are sensitive to fact the hearing involves significant and sensitive personal information. An advocate can help ensure that there is respect given to the wishes of the person about third parties attending the hearing.

Practice tips – support people your client wishes to invite

  • Prior to the hearing, seek your client’s instructions about whether they have a support person they wish to invite to the hearing. If so, seek your client’s instructions to speak with that person to ascertain whether and if so what evidence they are likely to give in support of your client. You may wish to refer to this evidence in your submissions or even consider leading evidence from them.
  • Your client may have other support people, or alternative, private practitioners, such as a GP or private psychiatrist, whom they want to attend, but who cannot. Consider discussing the issues with the clinician or requesting a brief letter of support which can be presented to the tribunal as evidence. It may be possible to arrange for the clinician to speak with the tribunal by phone during the hearing. See Evidence at a hearing.
  • The tribunal will usually ask if people attending the hearing wish to say anything however, generally speaking, they do not have to give evidence if they do not wish to.

Practice tips – third parties your client does not want to attend

  • Alternatively, seek your client’s instructions if there are third parties (such as family members or carers) whom they would prefer not to attend.
  • If third parties attend on the hearing day, ask your client how they feel about them attending the hearing. It’s best to do this when the third party is not present, so your client doesn’t feel pressured to agree.
  • Although the tribunal’s Guide to procedural fairness encourages family members and carers to participate in the hearing, you can often advocate for your client’s views to be respected.
  • If the family members or carers have been consulted by the treating team, their views will often be documented in the person’s file and summarised in the report. You can argue there is no need for them to attend the hearing.
  • You can suggest to the tribunal that if they need to hear the third party’s evidence, they only invite them in at the very end of the hearing.

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You can also see more information about the tribunal’s guide to procedural fairness on the Mental Health Tribunal website.

How to use this guide

This guide focuses on the Mental Health Act 2014, the key legislation governing compulsory mental health treatment and the assessment and treatment of people with mental illness in Victoria. It came into effect on 1 July 2014 and repeals and replaces the Mental Health Act 1986 (Vic).

In this guide you will find information about the rights of people receiving (public) mental health services, particularly if they are made subject to compulsory assessment or treatment.

It also outlines the criteria, principles and procedures that apply, the obligations on mental health services and other decision-makers and the safeguards which apply even when a person is subject to compulsory treatment and other restrictive interventions.

Importantly, this guide contains practical information and tips about how you can best assist your client to understand and exercise their rights and options under the Act to achieve their desired outcomes.

Purpose of this guide

This guide will assist you to effectively advocate for clients subject to compulsory treatment at the Mental Health Tribunal. It will also help you assist your client with their concerns about mental health treatment more generally.

It contains information about the law and practical advice and tips to enable you to identify if the relevant processes, criteria, safeguards, rights and obligations under the Act have been complied with. It will help you to assist your client to take action to enforce their rights and the accountability of decision-makers and enable your client to exercise greater control over their mental health treatment.

You have a critical role to play

Lawyers have a critical role to play in ensuring the overarching principles and objectives of the Act are put into effect in practice.

Read more about Role of lawyers in the mental health law jurisdiction.

Language used in this guide

People have different experiences of mental illness and treatment and different views about the use of terms to describe their experience or their diagnosis.

Many people experience a diagnosis of mental illness as ‘labelling’ and stigmatising. Some people prefer to use the term ‘consumer’, while others may refer to having a ‘lived experience of mental illness’, or ‘living with mental illness’ or ‘experiencing mental health issues’. Others may prefer the term ‘psychiatric disability’ or refer to the fact they have been ‘diagnosed with mental illness’.

Doctors and other health professionals may refer to a person as a ‘patient’. What may be acceptable terminology to one person may be disempowering to another.

As this guide is designed primarily for use by lawyers and other advocates who will be using the provisions of the Mental Health Act, we have chosen to use the term ‘person’ or ‘person with mental illness’ for consistency with the Act where possible, or ‘client’ where relevant. Where necessary for legal accuracy, we have used the term ‘patient’.

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Preparing for and appearing at a Mental Health Tribunal hearing

The focus here is on preparing for and appearing at a treatment order hearing however many of the general provisions will also be applicable to other hearings such as for electroconvulsive treatment (ECT).

You should try to meet your client at least the day prior to the hearing to enable you to take instructions, access and review information such as the service’s report and the clinical file and obtain any further evidence to support their case (such as from support people or private clinicians or a GP if possible).

Explaining your role and the scope of legal assistance

You should clearly advise your client of the nature of your role as their lawyer, including that you act on their instructions and keep information confidential. You should also advise if your service is free of charge, or if there will be a cost.

It is important to explain to your client the scope of the legal assistance you can provide, including whether it is limited to advice and representation before the Mental Health Tribunal, or whether you can also assist them with other areas of law. Be alert to whether the client needs a referral for other legal matters (criminal, tenancy, family law), or would benefit from a referral to the Independent Mental Health Advocacy or the Mental Health Complaints Commissioner.

Explaining the tribunal process

It is also helpful to clarify for your client the role of the tribunal, the criteria it must apply and the factors it must consider, and the limits on the issues it can formally decide upon, depending on whether the hearing relates to a treatment order or electroconvulsive treatment (ECT).

Obtaining your client’s instructions

Before the hearing you should try to get detailed instructions from your client to enable you to understand what it is they want to achieve and their views on the key criteria and factors the tribunal must apply.

You may wish to start by getting a general sense of your client’s situation and their views and preferences around treatment including:

  • how they feel about their mental health and their diagnosis, and any treatment they’ve had in the past
  • any particular concerns about or preferences for treatment and the way they are treated now
  • which parts of their treatment or the way they are being treated do they find most restrictive and how could that be improved or ceased altogether.

When discussing views about treatment, generally it is very important to make clear that the tribunal cannot make orders changing treatment, but those issues may be relevant to whether they need an order or not.

Taking your client through each of the treatment criteria, reviewing with them the Report on compulsory treatment and eliciting their response to the evidence and assertions by the treating team (in the report) is key to preparing your case. Read more about Evidence at a hearing and the four treatment criteria, including tips on what information to draw out and evidence to look for.

Practice tips

  • Other issues such as your client’s plans and goals and life beyond treatment and the involvement of mental health services can help you get a sense of who they are, what is important to them and the reasons for their views and preferences. These are relevant to the factors the tribunal must consider in accordance with s. 55(2) and s. 11(1)(c) and 11(3).
  • If your client is in hospital, finding out whether their medications are still being titrated, whether they have had any leave from hospital, their plans for accommodation once they are discharged, and who are their main support people in the community will be relevant to any arguments about community versus inpatient treatment and the length of any order if one is made (even though these aren’t issues the tribunal can decide upon in their own right).

Read more about Getting instructions from your client.

Preparing and advising your client

Explain to your client the usual process for a hearing, and how evidence will likely be given – orally and/or in writing. For some clients, appearing before the tribunal can be a daunting, confusing and at times frustrating experience.

Provide your client with advice about the key issues in their case, the kind of evidence the tribunal will be interested to hear and the strengths and weaknesses of their case and your advice about likely outcomes.

Practice tips

  • The reality is that much of the evidence required to be considered by the tribunal will be held by the mental health service. Remind your client that even though the treating team may give evidence that they disagree with, it is only the service’s view of the situation and they will have the opportunity to put forward their own view and challenge the conclusions of their treating team.
  • Depending on your client’s situation, you may need to clarify how they prefer to give evidence, for example, whether they would feel more comfortable giving evidence before the service, or afterwards. Read more about Evidence at a hearing including eliciting evidence from your client.

Preparing your case and making submissions

Clarifying your client’s instructions on the relevant criteria and the outcome they seek to achieve and any alternative proposals, will guide your preparation and the submissions you make.

See Evidence at a hearing and Preparing your case and legal submissions.

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Aboriginal and Torres Strait Islander clients

The principles

Anyone carrying out a duty or function under the Act in relation to an Aboriginal and Torres Strait Islander client should ensure that the person’s distinct culture and identity are recognised and responded to (s. 11(1)(h)).

The mental health a​nd wellbeing of Aboriginal and Torres Strait Islander Australians

The most recent report measuring the wellbeing of Aboriginal and Torres Strait Islander Australians, Overcoming Indigenous Disadvantage: Key Indicators 2016 (released 17 November 2016) shows a high prevalence of mental health issues in the Aboriginal community. The report states:

The proportion of Aboriginal and Torres Strait Islander adults who reported high/very high levels of psychological distress increased from 27 per cent in 2004–05 to 33 per cent in 2014–15.

After adjusting for population age structures, the proportion of Aboriginal and Torres Strait Islander adults experiencing high/very high psychological distress in 2014–15 was almost three times the proportion for non Indigenous adults [8.7].

The report also notes that ‘mental health issues are affected by a complex range of medical issues, historical factors, the stressors associated with entrenched disadvantage and drug and substance misuse’ [8]. Issues around stolen generation, intergenerational trauma and racism impact on mental health and wellbeing in the Aboriginal and Torres Strait Islander community.

Victoria’s Aboriginal health strategy 2012–2022, titled Koolin Balit, aims to improve Aboriginal health in Victoria. It acknowledges that the Aboriginal definition of health is broad and inclusive and highlights the fact that ‘the creation of a culturally responsive environment in hospitals to ensure they provide high-quality care that Aboriginal people are willing to access … cannot be done without also … working with local Aboriginal communities and other non-health players, such as social and family support services, to ensure all service providers understand the importance and value of being culturally responsive.’

Koolin Balit also states:

The department encourages culturally based social and emotional wellbeing services and interventions, developed and delivered by Aboriginal organisations in partnership with local mental health services with the aim of promoting self-determination, intervening earlier to optimise recovery outcomes and more effectively engaging Aboriginal people in mainstream mental health and social support services.

The strategy outlines principles for work in Aboriginal health, and the features of high-quality health services for Aboriginal people. It also highlights the importance of Aboriginal community-controlled health organisations, including expertise and understanding of the Aboriginal community and family networks.

Social and emotional wellbeing workers at Aboriginal health services can be another source of support for an Aboriginal client.

Admission to hospital

Check how your client came to be admitted. If they live in remote and/or regional Victoria, it may have taken some time to bring them to hospital, possibly in a police divisional van. This would likely have had an adverse impact on their presentation when they were assessed by the psychiatrist for the temporary treatment order.

The treatment criteria

Mental illness – section 5(a)

Physical and chronic health issues can manifest in ways which may be interpreted incorrectly as the person presenting with mental illness. Symptoms of hypoglycaemia (low blood sugar levels) are similar to symptoms of mental ill health and may account for unusual or out of character behaviour in your client. For example nervousness, sweating, behaving irrationally or trembling like someone affected by alcohol. This may impact on whether your client presents as having mental illness.

The second leading cause of death for Aboriginal Australians is endocrine disease. The endocrine system influences how your heart beats and how your bones and tissues grow. It plays a vital role in whether or not you develop diabetes, thyroid disease, growth disorders, sexual dysfunction, and a host of other hormone-related disorders.

These issues are also important to consider in determining whether treatment will be provided under section 5(c). That is, side effects of particular medication may have a greater impact on an Aboriginal person who is more likely than most to have trouble with their kidney or liver.

Practice tips

  • Ask your client if they have diabetes. If they don’t, ask if they have had a thorough medical check during this admission and check their clinical file for further details.
  • Your client’s treatment for their mental illness may not interfere with their cultural beliefs. On the other hand, the cultural practices of a community from a particular region may, when relayed by an individual to a mental health professional, cause unwarranted concern. Check to see if the client considers any topics to be ‘off limits’. If a person can’t talk about particular topics, this may be because of cultural sensitivity and is not necessarily a sign of mental illness. You should critically assess whether any of the 'symptoms' alleged fall into this category.

Provision of treatment (section 5(c)) and less restrictive treatment (section 5(d))

A person's literacy may have a bearing on whether they can or have received treatment, It may also provide context for past 'non compliance'.

Practice tips

  • Tactfully check with your client whether they may have literacy issues. For example, ask questions such as 'do you find it easy to read those tiny instructions on medication packets?'
  • Check if anyone ever explained to them when to take what medication or what each medication is for
  • Check if anyone has ever explained to them what a Webster pack is
  • Ask if they would be willing to have someone from the co-op attend daily to check their compliance, or drive them to the Aboriginal Health Service to get treatment.

In November 2014, Closing the Gap Clearinghouse released a document entitled Effective strategies to strengthen the mental health and wellbeing of Aboriginal and Torres Strait Islander People. It provides an evidence based discussion of factors that influence the effective development, implementation and outcomes of initiatives to address Aboriginal and Torres Strait Islander mental health and wellbeing issues.

P​ractice tip

Source this document and ask the treating team and the tribunal members if they have read it and how they have implemented it. If they haven’t, you can argue that the client would benefit from receiving their treatment through an Aboriginal specific service that understands the best practice in Aboriginal health.

Koori mental health services

  • St Vincent’s Hospital has five specialist beds for Aboriginal people from across Victoria, which is jointly managed by the Victorian Aboriginal Health Service Family Counselling Service.
  • Rural/regional areas have Koori mental health liaison officers whose aim is to improve access and the cultural appropriateness of services provided to Aboriginal people
  • Koori mental health project for young people – an initiative of Royal Children’s Hospital developed in consultation with the Koori Kids Mental Health Network and the Koori Adolescent Mental Health Unit of the Victorian Aboriginal Health Service.

Practice tips

  • Ask your client what it means to them to identify as Aboriginal or Torres Strait Islander
  • Ask if they would like to have Aboriginal specific services involved in their treatment and recovery
  • Ask if they would like the Aboriginal Liaison Officer from the hospital to visit them and liaise with the treating team on their behalf
  • Check with your client if they’re comfortable meeting with you alone, if they’d prefer to have someone else there, or if they'd prefer to sit side by side rather than face to face

At the Hearing

Practice tips

  • Consider cross-examining the treating team on how they have recognised and responded to your client’s distinct Aboriginal or Torres Strait Islander identity and cultural needs. It may be helpful to refer to relevant clinical guidelines if relevant for your client’s situation.
  • Ask if anyone on the treating team or tribunal has undergone cultural awareness training and/or liaised with the Aboriginal Liaison Officer at the hospital

Application of the Charter of Human Rights

It is clear from its Preamble that the Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic) (the charter) intended to reflect the need for specific rights for Aboriginal persons in Victoria:

'This charter is founded on the following principles … human rights have a special importance for the Aboriginal people of Victoria, as descendants of Australia’s first people, with their diverse spiritual, social, cultural and economic relationship with their traditional lands and waters.'

The charter at section 19 gives general expression to Indigenous cultural rights. In particular it states 'Aboriginal persons hold distinct cultural rights and must not be denied the right, with other members of their community:

  1. to enjoy their identity and culture
  2. to maintain and use their language
  3. to maintain their kinship ties
  4. to maintain their distinctive spiritual, material and economic relationship with the land and waters and other resources with which they have a connection under traditional laws and customs.'

This appears to also reflect Article 25 of the United Nations Draft Declaration on Indigenous Rights.

In addition to s. 19, access to culturally appropriate services and the ability to practise culture while in a locked environment invokes a number of charter provisions:

  • s. 8 – recognition and equality before the law
  • s. 12 – freedom of movement
  • s. 13 – right to privacy and reputation (cultural practices are included in the concept of privacy and personal autonomy).

Rights of other people, including children, are also engaged whenever a child is separated from their parent upon entering a locked environment. When a lack of access to services compromises an Aboriginal person’s ability to provide effective ongoing care for their child, the protection of the child’s best interests is also at risk. Therefore, the charter requires the tribunal to think about the best interests of the child and protection of families (although to an extent this is covered by s. 11(1)(i) and (j)).

It may be argued that section 8(4) of the charter makes clear that particular measures may be taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination and that this in itself does not constitute discrimination. This provides recognition that to achieve equality, Aboriginal inpatients need to be treated differently in light of the historical disadvantage that makes Aboriginal people susceptible to mental ill health.

More information

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Related website​s

For more information about the leading causes of death for Aboriginal and Torres Strait Islanders peoples, see the Australian Bureau of Statistics website.

Read the following information on the Australian Indigenous HealthInfoNet website:

For an overview of the health and wellbeing of Aboriginal and Torres Strait Islander peoples on the Australian Institute of Health and Welfare website.

Read the report measuring the wellbeing of Aboriginal and Torres Strait Islander Australians Overcoming Indigenous Disadvantage: Key Indicators 2016 (released 17 November 2016) on the Australian Government Productivity Commission website.

Read Victoria’s Aboriginal health strategy 2012–2022 Koolin Balit​ on the Department of Health and Human Services website.

Read more information about hypoglycaemia and endocrine disease on the Health Direct website.

Read Aboriginal and Torres Strait Islander mental health: Principles and guidelines (July 2014) and Aboriginal and Torres Strait Islander mental health workers (August 2016) on the Royal Australian and New Zealand College of Psychiatrists website.

Evidence at a hearing

The Mental Health Tribunal will consider written evidence (from the report and the person’s clinical file) and oral evidence (from the service and the person themselves and anyone else who is present.

A thorough review of the evidence likely to be presented by the service will enable you to prepare your case most effectively. See Access to information and the clinical file and Report on compulsory treatment.

Eliciting evidence

Evidence from your client

Your client will need to speak at some point during the hearing – this can happen in a few different ways, including talking freely to the tribunal, responding to questions from you or being led by you, or being questioned by the tribunal.

For some clients, appearing before the tribunal can be a daunting experience. Remember that a person’s views can change and it’s important to clarify your client’s views and the evidence they’re likely to give on the day of the hearing as your instructions can sometimes change from the day before.

Practice tips

You can play an important role in facilitating your client’s participation in the hearing in a way that suits them best and is most persuasive for the tribunal. For example:

  • Before the hearing, ask them how they would prefer to give evidence, for example giving the opportunity to speak first, or speak after you have summarised or at least introduced your case and the key issues.
  • Give your client an indication of the kinds of questions the tribunal, or you yourself, will want to ask in the hearing, so they can think about their responses.
  • Getting the client to write down what they want to say before the hearing can be helpful (e.g. You can offer them, or take them through Victoria Legal Aid’s brochure Going to a Mental Health Tribunal hearing).
  • Making an opening statement on behalf of your client and what they want to achieve can give some clients more confidence to later address the tribunal directly.
  • Leading evidence from your client can allow you to control the way in which the evidence comes out.
  • Evidence given directly by your client about their own experience, views and preferences and in particular their plans for treatment and rationale for that, is usually more persuasive than any statement or submission you can make on their behalf.
  • Being responsive to your client and to what unfolds at the hearing enables you to best advocate on their behalf. You may seek to ask follow-up questions of your client in order to clarify what they meant or draw out issues that may have been overlooked, or seek a useful rebuttal of an inaccurate or misleading statement by the treating team.
  • While you are asking questions, note any relevant answers to which you can refer to in closing submissions.

Evidence from the treating team

Representatives of the treating team will present evidence about why a treatment order should be made and the type and duration of the order they seek. This evidence may be given by the person’s psychiatrist, psychiatric registrar, case manager and/or nurse. During the hearing, you will have the opportunity to question the representatives of the service. Use this opportunity to test the service’s case and elicit evidence that will support your case, but don’t feel you have to cross-examine the treating team merely for the sake of doing so.

Practice tip

It can sometimes be helpful to clarify with the psychiatrist the service’s plan for treatment on the day of the hearing, so as to avoid being surprised by evidence which is given at the hearing. This can be particularly important where the report has very little detail or has been prepared some time before the hearing. Remember, a person’s presentation and circumstances can change from day to day in an acute inpatient environment.

Key issues to draw out

Depending on your case theory, based on your client’s instructions, you may seek to use cross-examination to draw out some of the following:

  • Concessions that assertions in the report are incorrect or inconsistent with file notes or other evidence.
  • Highlighting where allegations against your client are vague, historical or non-specific assertions regarding aggression, violence or harm towards others or non-compliance with treatment.
  • Querying whether past incidents/harms actually occurred because of the person’s mental illness (as opposed to other factors such as substance use).
  • How likely is any alleged harm or deterioration to occur, how quickly and how serious would it become, and other interventions that may prevent such consequences actually occurring or at least mitigate against them being serious.
  • Clarification of whether a particular medication or intervention is actually necessary to manage a relevant risk.
  • Clarification of whether a particular intervention has the effect of remedying the illness or alleviating the symptoms demonstrating (where appropriate).
  • That the client is (now) compliant with and accepting of treatment, which is available and could occur/be provided in the community.
  • Confirmation of the range of supports that would/could be provided by the community mental health team and that these are available even if no order is in place (including to ensure compliance and detect any relapse early).
  • Clarification of whether detention is actually necessary to ensure compliance with treatment (for example, by reference to the client’s recent history of engagements with the service and compliance with leave from hospital).
  • Clarification or whether the treating team is seeking the order to provide some sort of optimum or best practice treatment, rather than treatment necessary to prevent serious risk.
  • Showing that there is no principled basis for requesting an order of maximum duration.

For a more detailed list of the issues relevant to each of the treatment criteria and the type and duration of orders, see the discussion points outlined in Treatment criteria.

Practice tips – cross-examination

  • Speak up if the tribunal doesn’t invite you to ask questions of the service’s representative.
  • Don’t be aggressive or accusatory in your approach. Remain polite and adopt a conversational, open demeanour.
  • Avoid longwinded questions.
  • As a general rule, don’t ask questions you don’t know the answers to, unless you could make any answer fit into your case theory.
  • If the person giving evidence is going off-topic with open questions or giving longwinded answers, revert to closed, yes/no questions and consider pressing them politely if they do not answer the question or give a vague answer.
  • If the service gives an answer that you don’t expect, you will need to make a judgement call about whether to move on or whether to put inconsistent or contradictory information to them and ask them to comment and/or concede that they may be mistaken (such as contemporaneous file notes, or evidence of the client or family members).
  • If the service representative gives vague or non-specific evidence, invite them to point to file entries that support their assertion (provided you have reviewed the file and are reasonably confident there is nothing in there).
  • When you get the answer you want, move on. Don’t push your luck or linger on the topic or they may try to backtrack.
  • Don’t try to get the service representative to concede the ultimate issue (that the treatment criteria aren’t satisfied).

Evidence from other sources

If your client has support people present at the hearing, you can elicit evidence from them about the kind of support they can provide to your client. For example, subject to your client’s instructions, you can ask for confirmation of the person’s willingness to supervise medications or support them in ways to ensure they stay well or any signs of relapse are picked up and acted upon early. Support people can also help to:

  • provide evidence of, for example the availability of:
    • support at home
    • supervision of medication or likely liaison with the treating team if concerns arise
    • support for less restrictive treatments or less restrictive interventions to manage risk
    • accommodation.
  • corroborate your client’s compliance history or voluntary treatment
  • clarify the circumstances surrounding admission to hospital
  • contextualise allegations of harm, or
  • cast doubt on the seriousness of relapse or other consequences of changing or ceasing treatment.

Less restrictive alternatives can also be supported by other documentary evidence from other third parties, such as a letter of support from a private treating psychiatrist or GP attesting to the scope and nature of the treatment they could provide if a person was out of hospital or off their order. Such evidence can be invaluable in support of a less restrictive alternative to compulsory treatment.

Practice tips – obtaining collateral evidence in support

  • Seek your client’s consent to contact the support person and ascertain what support they can provide to your client, including the nature and scope of any alternative treatment they have provided in the past and could provide again.
  • Ask the person if they can send you an email or letter to put before the tribunal confirming what they have told you, or even attend the hearing to give evidence. It is also possible to ask the tribunal to phone witnesses if they cannot attend.

See also Who can attend the hearing for information about who can participate in a hearing, including third parties.

Evaluate the evidence and give your client frank, practical advice

Be realistic when advising your client about the likely chances of particular arguments being accepted by the tribunal. Be mindful to manage any expectations your client may have.

Explain your view of the most effective way to present the case, what aspects you propose to focus on in legal submissions (which may have the best chance of obtaining the outcome they want) and which arguments you believe are not as strong. Seek their consent to your proposal.

For example, if your client disputes having a mental illness you can recommend seeking a second psychiatric opinion and explain the difficulty in ‘winning’ that criterion without supporting medical evidence. If your client feels strongly they want that argument put, consider the option of mentioning this briefly during the hearing, before moving on to other submissions.

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Preparing your case and legal submissions

Once you have your client’s instructions about what they hope to achieve (including alternatives they may accept) you can use the evidence you have gathered and reviewed to prepare a case theory. Consider the relevant strengths of arguing against each of the treatment criteria, the making of a community rather than an inpatient treatment order, and the length of any such order.

Explain to your client which arguments you propose to focus upon and why. Discuss with them possible alternatives if they do not achieve the desired outcome, and the strengths and weaknesses of each. For example, if the tribunal is likely to find sufficient evidence to make an order, a community treatment order may be preferable to an inpatient order, and similarly a shorter order preferable to a longer or maximum-length order. Seek your client’s consent to the submissions you propose to make.

Practice tips – developing your submissions

Ultimately, crafting and developing submissions involve a judgement in each case, but the following tips may be helpful to consider:

  • You may find it helpful to prepare a chronology, or a written summary of the key issues and evidence from various sources for each point.
  • Consider the most succinct way of explaining the essence of your case to the Mental Health Tribunal and how you will capture the evidence which may emerge during the hearing – from your client or the treating team or otherwise – which can support your case or which you may need to rebut.
  • Focusing on two or three key issues can sometimes be more effective than taking a scattergun approach or trying to run every possible argument, particularly given hearings are usually allocated one hour each in total.
  • If your client’s main concern is leaving hospital, seek instructions to advocate for the making of a community rather than an inpatient order, or a shorter inpatient order, for example if the order is not likely to be revoked outright.
  • The most logical and compelling order in which to present the arguments to the tribunal will not always be to address the criteria sequentially. Sometimes it can be helpful to start with your submission on criterion 5(d) for example and work your way back if you need to.

Whether to provide written submissions

Having identified the key issues you will be focusing on during the hearing, consider whether to provide the relevant parts of the legal submissions, or an outline of submissions, to the tribunal.

Written submissions can be very effective if, for example, the legal issues are complex or novel. These should be focused and tailored to the client and encompass the facts and evidentiary issues on each issue.

If the file has consistent positive reports, or shows strong improvement from a particular date (compliant with medications, pleasant and polite, no overt psychosis evident, etc.) consider making a table that demonstrates these entries and the dates. Positive mental state examinations and psychiatrist reviews are particularly helpful.

If you do provide written submissions, in accordance with the tribunal’s complex case management procedure, email these to the tribunal as early as possible. If your submissions are particularly lengthy and are only provided at the time of the hearing itself, there is a risk the tribunal may adjourn the hearing.

Practice tip

There is a risk in providing written submissions to the tribunal where the evidence is uncertain, or there is any chance your client’s instructions or circumstances will change by the time of the hearing. Being ‘locked in’ by written submissions can impact upon the credibility of your submissions and potentially your client’s evidence at the hearing itself. Even if you do not ultimately give written submissions to the tribunal, having your submissions prepared in writing can help you during the hearing, and you can refer to them if necessary.

Reading them through to your client before the hearing is also a very useful way to confirm instructions and make alterations if necessary. Written submissions can also be useful in the event of an appeal.

See Evidence at a hearing.

Making submissions at the hearing

If (consistent with your instructions), you intend to dispute only one or two of the treatment criteria, it is helpful to be clear about this from the outset and focus your submissions to the Mental Health Tribunal on these points.

It’s important, however, to act on and be consistent with your client’s instructions and what they identify as the important issues for them. For example, if the client disputes having an illness or requiring any treatment, you should make clear at the outset that your client submits that none of the criteria are met, but you can say that your arguments will focus on a specific criterion or criteria.

Practice tips – relevant criteria and principles

  • Remember, since the treatment criteria are essentially considered by the tribunal sequentially, even if you are focusing on one criterion, you may need to address additional criteria to narrow the scope on which you concede they are met. For example, you may be arguing that s. 5(d) is not met because your client can get treatment voluntarily, but you may concede that section 5(b) is met based on the need for immediate treatment to prevent serious deterioration in your client’s mental health, but not to prevent serious harm to others. Emphasise that all four criteria must be met for an order to be made.
  • Your submissions should address the law, the evidence and the specific circumstances of your client’s case, as well as any relevant mental health principles, the application of which should support the conclusions you ask the tribunal to reach.
  • Consider whether to draw the tribunal’s attention to specific evidence in support of each of your arguments, for example file notes, and when to highlight the absence of cogent evidence from the service in relation to their case.

Opening and closing submissions

At the very commencement of the hearing, you should highlight any jurisdictional issues or non-compliance with requirements under the Mental Health Act 2014 (Vic), such as to provide access to information and the clinical file and procedural fairness.

Beyond this, in relation to substantive issues, there is no right or wrong approach to when to make submissions – whether at the beginning of the hearing, at the conclusion, or both. Some tribunal members have a preference for the conduct of hearings and timing of submissions. For example, some may invite you to make opening submissions before hearing evidence from your client or the treating team, and others may ask questions directly of your client before you have a chance to make any opening submissions. Experiment and find out which approach is most effective with your style of advocacy and your local tribunal members.

You do not have to be limited by what the tribunal invites you to do – if you prefer to make your submissions in closing rather than at the start of the hearing, tell the tribunal that this is what you will be doing.

Practice tips – opening and closing submissions

You are not limited to necessarily choosing one type of submission or the other, however consider the following:

  • Opening submissions – can enable you to paint a picture for the tribunal at the outset, which can frame their reading of the evidence or focus them on what you identify as the key issues. Raise any jurisdictional issues here at the outset. You often have more time, rather than being rushed at the end of a hearing, but be mindful of ‘locking in’ submissions when the evidence may change – clients and others may give evidence you are not expecting. You may wish to signal any alternative submissions at the outset, then provide further details in closing.
  • Closing submissions – can be tailored to the specific evidence which came out at the hearing itself and can be useful as an addendum to initial opening submissions, including to flesh out alternative submissions if the tribunal doesn’t appear to agree with your primary submissions (for example, if the tribunal will not revoke, then you urge it to make a community rather than inpatient order). Closing can be a useful time to highlight relevant case law, offer previous Statements of Reasons from the tribunal, or make Charter of Human Rights and Responsibilities arguments. Make sure you have enough copies of relevant documents for the tribunal and a copy for the treating team.
  • Don't underestimate the importance – depending on the level of engagement by the members, closing arguments can leave them with your points reinforced in their mind immediately before deliberating. However, it may appear that a tribunal member has already made up their mind by the closing of evidence. Depending on time, you may need to assert yourself to make closing submissions, particularly if the hearing is running over or is close to time.
  • Flexibility – allowing a degree of flexibility can enable you to be responsive to any changes in your client’s instructions and the evidence in the hearing. You should be prepared to jettison arguments that have become unsustainable during the course of the evidence.

Communication in the hearing

Be mindful of using language in the hearing that your client is able to understand, in particular when asking them specific questions. If using an interpreter, you will need to pause between sentences to allow time for the interpreter to finish interpreting. Be sensitive to your client’s level of engagement or alertness in the hearing or if they are likely to get distressed by the use of certain language or lines of questioning. Be alert to hearing difficulties or comprehension issues, especially when representing someone who speaks English as a second language and does not have an interpreter.

Make eye contact with the tribunal members when making your submissions and be mindful of holding their attention. Give them time to finish writing their notes before moving on to your next point.

Use of precedents and authorities

Past Mental Health Review Board or Mental Health Tribunal decisions can be useful to guide the tribunal as to legal or interpretive issues. However, care should be taken with factual comparisons as each case will turn on its unique facts.

Decisions of the mental health review board and the tribunal are not binding; decisions of VCAT are not binding but will be influential.

Practice tip

De-identified decisions of the former board, the tribunal and VCAT are all available (and searchable) on the Austlii website. See also Treatment criteria for summaries of some relevant tribunal decisions.

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Role of lawyers in the mental health law jurisdiction

Lawyers have a critical role to play in ensuring the overarching principles and objectives in the Mental Health Act 2014 (Vic) are put into effect in practice.

Understanding the issues for clients and services

Lawyers regularly attend inpatient mental health services and appear before the Mental Health Tribunal to advise and represent clients and negotiate on their behalf. Lawyers may also be able to provide legal assistance to people attending community mental health services. They can influence mental health service provision and promote human rights-compliant decisions about treatment consistent with the objectives at section 10 and the principles in section 11 of the Act.

In order to do this, lawyers must understand the:

Advocating for a rights-based and recovery-oriented practice

Lawyers should understand and strive to enforce the specific obligations on public mental health services, psychiatrists and others (such as the Mental Health Tribunal) to restrict a person’s rights only as a last resort, and even then, to maximise their participation in decision-making by respecting the person’s wishes, views and preferences.

This is discussed in more detail in The Mental Health Tribunal – its role and powers and Compulsory treatment and assessment orders.

Supporting clients to express their wishes and make decisions

There are various mechanisms under the Act that are designed to allow people to make decisions about their treatment and recovery and to be supported in exercising greater control over the making of those decisions. It is important for the lawyers acting for consumers to clearly understand these mechanisms.

By listening to clients and acting on instructions, lawyers are very well placed to support clients to articulate their strengths, wishes, needs, experiences and goals and to ensure their views are taken into account and respected by others.

This can promote individualised treatment and recovery-oriented practice by mental health services. It can also ensure treatment is provided with the least restrictions on the person’s rights to autonomy, dignity, privacy and bodily integrity, and liberty.

Lawyers can put this into practice in their direct advocacy for clients both at the Mental Health Tribunal and in any negotiations with the person’s treating team or with other services.

Lawyers can also consider referring clients on compulsory orders to the Independent Mental Health Advocacy service (IMHA) for assistance to help them to have as much say as possible about their assessment, treatment and recovery. Another service available to consumers is the Victorian Mental Illness Awareness Council.

Encouraging the use of tools for supported decision-making

Lawyers can also encourage support and empower clients to take advantage of other tools and mechanisms under the Act to maximise the person’s control over and participation in decisions about treatment.

Tools to promote supported decision-making in practice include:

  • making an advance statement
  • appointing a nominated person
  • seeking a second psychiatric opinion, including one from an independent psychiatrist if a person chooses.

These tools must then be genuinely considered and respected by decision-makers, including the treating team and the Mental Health Tribunal, particularly if a person is later made subject to compulsory treatment.

See the Department of Health and Human Services website for more information on Advance statements and Nominated persons.

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For more information about mental health treatment and services, see the Independent Mental Health Advocacy service (IMHA) website.

Advocacy in the mental health law jurisdiction

Assisting a client who has a hearing before the Mental Health Tribunal requires an understanding of more than just the relevant legal criteria, the principles that apply and the process involved.

Many people's experiences of compulsory treatment is stigmatising and disempowering. Understanding your client’s situation – their experiences of mental health services and compulsory treatment, what is important to them and what they hope to achieve – and critically evaluating the available evidence, can enable you to advocate most effectively.

It will assist you to advise your client about their rights and options, negotiate with the treating team and others and advocate effectively on their behalf at the tribunal.

Acting on your client’s instructions

Lawyers are obligated to act on their client’s instructions. This means not assuming instructions, not acting in what is perceived to be their best interests and not acting on the instructions of family members or other supporters.

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Getting instructions from your client

Lawyers can only take instructions from clients with the capacity to instruct.

Capacity generally

In a general sense, capacity is a legal rather than clinical construct and is sometimes referred to as ‘legal capacity’.

Capacity is not a blanket concept; it is decision-specific and can fluctuate over time. Generally it involves considering:

  • a person’s ability to understand and retain information relevant to the particular decision that needs to be made
  • using or weighing up that information to come to a decision; and
  • communicating that decision in some way.

For some decisions (such as entering contracts or making a Will) there is a specific legal test, or threshold of understanding required for capacity to make that decision. However, generally speaking, the starting point is that all adults are presumed to have capacity to make the particular decision facing them.

Capacity to instruct in the mental health law context

In the context of Mental Health Tribunal advocacy, a lawyer should always start from the presumption the person has capacity to give instructions and make decisions. This also applies to young people.

The Mental Health Act 2014 (Vic) also outlines a specific test for (and presumption of) capacity to provide informed consent to treatment, which is particularly relevant in the case of electroconvulsive treatment (ECT).

Most people can give instructions

Most people – including those with disabilities such as mental illness – can give meaningful instructions based on their own personal values and preferences. Having a disability does not mean that the person lacks capacity to make a particular decision nor is unable to give instructions.

The UN Convention on the Rights of Persons with Disabilities (which Australia has ratified) also reinforces that ‘persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life’ (Article 12(2)).

Just because a person makes a decision that others regard as unwise, or because they don’t make the best possible decision, does not necessarily mean that they lack capacity to give instructions. Most people (regardless of ability or diagnosis) make irrational decisions at times or decisions that appear to be risky or not in their objective best interests. This does not equate to being unable to give instructions.

Practice tip

Generally, if a person understands at a basic level your role as their lawyer and can communicate instructions around their mental health treatment relevant to the decision the tribunal needs to make then they have the capacity to instruct you.

For example, ’I don’t believe I have a mental illness’, ’I don’t like the medication I’ve been given – it has awful side effects’, ‘I want to go home where I can see my GP instead’ are all relevant instructions. Whether you ultimately decide whether you are able to represent your client before the tribunal is a different question.

Having difficulty getting instructions

Even though it may be difficult to get instructions, or the instructions are limited, or they change, it is unusual for a person to be unable to provide instructions at all on their Mental Health Tribunal hearing.

For example, even if your client is experiencing delusions they will often be able to provide instructions about some aspect of their experience of treatment in hospital or being forced to attend the community mental health service, or how they feel about their medication.

People can and do change their minds. Your client’s views about a particular medication may also change over time, but this doesn’t necessarily mean they can’t give instructions.

Where a person is unable to communicate (for example, if they are catatonic) then they may lack capacity to instruct. Such situations, however, are rare and often only temporary. A person is likely to regain their capacity once the catatonic symptoms resolve.

Acting on instructions not ‘best interests’ at the tribunal

Acting on a person’s instructions, rather than what the lawyer may perceive to be their best interests is particularly important at the Mental Health Tribunal given the consequences of the hearing can impact profoundly on their rights. The person's treating team will be presenting their case according to what they perceive as in the person's best interests.

The presumption that a person has the capacity to instruct and the process of acting on instructions reinforces their right to autonomy, supported decision-making and dignity.

Lawyers can use their client’s instructions to help enliven these principles by illustrating what their client regards as ’least restrictive treatment’ and ’recovery’ having regard to the dignity of risk.

Taking the time to understand and advocate on the basis of a client’s instructions helps to promote their effective participation in the hearing and other decision-making processes.

Whilst the treating team and the tribunal and even support people may be motivated to act in the person’s best interests, it is ultimately the client’s instructions that determine how the lawyer acts and the submissions they may make on the person’s behalf.

Tips for obtaining your client’s instructions

  • Take instructions in person – some clients find it more difficult to engage over the phone and getting instructions in person can often be more effective.
  • Get to know your client – spending time building rapport with your client can help you understand what is important to them.
  • Ask for reasons or motivations – ask about your client’s reasons for their instructions. What is important to them? How do they understand the issues? Do they need more information?
  • Explain your role – ensure your client clearly understands what assistance you can and can’t provide and, if you are representing them at the Mental Health Tribunal, explain what that involves.
  • Effectively manage your client’s expectations – be clear about the boundaries of your role as a lawyer.
  • Remain impartial and professional – be clear with the client that you’re a lawyer, not a doctor, and that it is not your role to say whether they do or do not have a mental illness. Refer all medical questions to a doctor.
  • Dealing with family members – remember that they may be acting in your client’s best interests and this may not always be of help to your client’s case. Remember to only take instructions from your client directly.
  • Responding to client’s symptoms – try not to engage in a discussion about the veracity of a client’s delusions. You can acknowledge their experiences, but then move on.
  • Communicate in a way they can best understand – be responsive to your client’s communication preferences so you can most effectively explain relevant information, their legal options and the consequences of those options. Use an interpreter where required and be mindful of your use of language and jargon.
  • Choose an appropriate time and place – some clients feel more alert and better able to process information or communicate in the morning, others in the afternoon. This can depend on when they take their medication and its effects. It can also be affected by receiving electroconvulsive treatment (ECT). Some clients prefer a quiet comfortable room in which to talk. You may need to give your client more time to consider their options and provide instructions.
  • Check your instructions – if you are uncertain of your instructions, they appear contradictory or have changed, you can check your instructions several times in different ways, including just before the hearing. Limited instructions can be enough.
  • Test your client’s instructions – It’s a good idea to test your client’s instructions against the evidence and the criteria by pre-empting some of the questions the tribunal might ask. For example, ‘The tribunal might ask you about [ ... ] what do you say about that?’
  • If you are unable to act, be clear about why – at times you may not be able to do as your client has instructed. For example, you may need to explain that you cannot positively mislead the tribunal. There may also be another service that is better placed to assist your client, e.g. The Independent Mental Health Advocacy service (IMHA) may be more appropriate to help your client negotiate a change of medication.

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For more information about mental health treatment and services, see the Independent Mental Health Advocacy service (IMHA) website.

The Mental Health Tribunal – its role and powers

The Mental Health Act 2014 (Vic) establishes the Mental Health Tribunal, an independent primary decision-maker that replaced the Mental Health Review Board with new powers, including to decide applications for electroconvulsive treatment (ECT).

Functions of the tribunal

The tribunal’s functions include hearing and determining matters related to:

  • treatment orders including:
    • whether a treatment order should be made for a person subject to a temporary treatment order (automatic hearing under s. 53)
    • applications for a further treatment order for a person already on a treatment order (on application by the authorised psychiatrist under s. 54)
    • when a person’s community temporary treatment order or community treatment order has been varied to an inpatient order (automatic hearing under s. 58(5))
    • applications by a compulsory patient to revoke their temporary treatment order or treatment order (s. 60).
  • electroconvulsive treatment (ECT) including:
    • application for compulsory ECT on an adult compulsory patient who does not have capacity to give informed consent (s. 93)
    • application for ECT on a young person under 18 years old (who does not have the capacity to give informed consent, or who has capacity but does not consent) (s. 94).
  • neurosurgery for mental illness (ss. 100–104)) (Applications to perform neurosurgery are incredibly rare and are not covered in this guide).

The tribunal also hears:

  • applications for interstate transfer orders (without the person’s consent) (ss. 321 and 323)
  • applications in relation to people on court secure treatment orders and secure treatment orders (Part 11 of the Act)
  • appeals against a transfer to another designated mental health service within Victoria (such as being transferred from the acute inpatient unit at one hospital to the secure extended care unit at another hospital)(s. 66).

This guide does not specifically discuss these other hearings, however general information about the tribunal’s decision-making will be relevant. It should be noted that the criteria for court secure treatment orders (s. 94B(1)(c)) and secure treatment orders (s. 276(1)(b)) essentially replicate the treatment criteria (s. 5). For more information, see Treatment criteria.

Practice tip

The tribunal may conduct a hearing to determine several issues. For example, the Tribunal can hear an application for a treatment order concurrently with a person’s appeal of their existing order. The tribunal can also make a decision about a Treatment order as well as hear an application for ECT in the one hearing.

Members of the tribunal

The tribunal is constituted by:

  • a legal member, a psychiatrist or registered medical practitioner member and a community member for ‘general division’ hearings (hearings excluding ECT and neurosurgery hearings) (s. 179(2)), or
  • a legal member, a psychiatrist member and a community member where the hearing involves ECT or neurosurgery (a ‘special division’ hearing) (s. 179(3)).

The legal member is the presiding member of the tribunal and the psychiatric or medical member should not be someone who has been involved in the person’s treatment.

Practice tip

If your client has appeared before the same tribunal member or members, seek their instructions about proceeding with the hearing, or requesting an adjournment to enable new members to determine their case.

Limits to the tribunal’s power

In a treatment order hearing, the tribunal cannot:

  • make a determination regarding a person’s diagnosis, only whether the definition within the Act is met
  • make an order regarding the type of treatment a person receives (other than when authorising ECT)
  • make orders regarding leave from hospital
  • make orders specifying which inpatient unit of the hospital a person receives their treatment, or which part of the ward – high dependency or low dependency, or
  • deal with complaints about the mental health service (a complaint can be made to the Mental Health Complaints Commissioner).

Practice tips – treatment in SECU and ‘high dependency’ areas

  • If your client is concerned the treating team want to transfer them from the adult acute unit to the secure extended care unit (SECU) of the same hospital but they don’t wish to go, the only way to challenge this at the tribunal is to succeed in having the order revoked. The person may have the right (under s. 66) to challenge the transfer if it involves transfer to a SECU at a different designated mental health service.
  • If the tribunal makes an inpatient treatment order, it will be up to the authorised psychiatrist to determine whether the person is treated in, say, the adult acute unit, or SECU, or in the ‘high dependency’ (sometimes called ‘flexicare’ or ‘intensive care’) area of the unit rather than the main (‘low dependency’ area).
  • Consider referring your client to the Independent Mental Health Advocacy Service (IMHA) for advocacy, or the Mental Health Complaints Commissioner.

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Applying the mental health principles and the person’s views, preferences and recovery goals

When exercising any function or power under the Mental Health Act 2014 (Vic), the Mental Health Tribunal must have regard to the mental health principles (s. 11(3)). This includes that a person should be able to make decisions about their assessment, treatment and recovery that involve a degree of risk.

A range of specific factors must also be applied by the tribunal when making certain decisions. Section 55(2) provides that in making a treatment order – both deciding whether the treatment criteria apply and determining its type and duration – the tribunal must have regard, ‘to the extent that is reasonable in the circumstances’, to a range of factors including:

  • the person’s views and preferences about treatment (including in their advance statement if they have one)
  • their reasons and any recovery outcomes they want to achieve
  • if a person has a nominated person or guardian, that person’s views
  • the views of a carer or parent in certain circumstances.

For hearings about electroconvulsive treatment (ECT), the tribunal must have regard to other specific factors relevant to that criteria. See electroconvulsive treatment (ECT).

Practice tips – tribunal application of the mental health principles

  • When your client wants to talk about their preferred treatment, the tribunal will occasionally raise the objection that they cannot make treatment decisions. Directing the tribunal to their obligation to consider the views and preferences of your client about treatment is a helpful way of overcoming this objection.
  • Applying these principles may mean, for example, the tribunal places a greater weight on the person’s desire to cease treatment because the side effects are so severe, than on the evidence the service puts forward about the need for treatment or the seriousness of the consequences said to arise without such treatment. See case examples in Treatment criteria at s. 5(b).
  • It may also be more willing to give a person the opportunity to voluntarily manage their mental health with their own preferred treatment and ‘risk’ a potential relapse at some point in the future. See case examples in Treatment criteria at s. 5(d).

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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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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.

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Guides from the Mental Health Tribunal website:

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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Treatment criteria: compulsory treatment

The treatment criteria, as set out in section 5 of the Mental Health Act 2014, are four requirements that must each be satisfied before a person can be made subject to a temporary treatment order or a treatment order.

These criteria are different from the criteria under the previous Mental Health Act. The 2014 Act in some ways narrows the criteria, reflecting parliament’s clear intention to minimise the use and duration of compulsory treatment.

The treatment criteria

Under section 5 of the Act the treatment criteria are that:

  1. the person has mental illness
  2. because the person has mental illness, the person needs immediate treatment to prevent:
    1. serious deterioration in the person's mental or physical health, or
    2. serious harm to the person or to another person.
  3. the immediate treatment will be provided to the person if the person is subject to a temporary treatment order (or treatment order – where considered by the Mental Health Tribunal), and
  4. there is no less restrictive means reasonably available to enable the person to receive the immediate treatment.

Covered in this section

To help you understand these four treatment criteria, this section covers:

  • the key elements that must be satisfied for each criteria before a compulsory treatment order can be made
  • discussion points to assist in assessing your client’s situation against each criteria and ways in which they may be challenged
  • summaries of relevant cases.

Note: Given the context in which lawyers and advocates will be assisting clients, the section refers by and large to the Mental Health Tribunal needing to be satisfied of relevant matters before finding the criteria met on the evidence, however these apply equally to authorised psychiatrists in making temporary treatment orders.

Practice tips

  • The criteria should be considered sequentially. For example, the ‘mental illness’ the person is found to have under the first criterion (a) must necessarily be the same mental illness from which the ‘serious deterioration’ or ‘serious harm’ in (b) arises. So too, the ‘immediate treatment’ found to be met under s. 5(b) will then be the same ‘immediate treatment’ for the purpose of applying sub-sections (c) and (d).
  • In deciding whether the criteria are met, the tribunal must also ‘to the extent reasonable in the circumstances’ have regard to the range of factors at section 55(2), including the person’s views and preferences about treatment, their reasons and their recovery outcomes. Use this as an opportunity to highlight to the tribunal the person’s individual goals for the future and any reasons for challenging the proposed treatment or preferring alternatives.
  • The tribunal is developing its jurisprudence and publishing de-identified written reasons for its decisions, which are available on Austlii. Some decisions relevant to each of the criteria are noted in the following sections, and new decisions may be added in due course. Whether the criteria are satisfied will depend on the unique facts of each case and, whilst the tribunal is not bound by precedent from its own decisions, the cases illustrate how some tribunals are interpreting the relevant criteria.
  • Despite the change in criteria, in some cases, decisions made by the previous Mental Health Review Board may be relevant.

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Section 5(a): the person ‘has mental illness’

The Mental Health Act 2014 (Vic) deliberately amends this first treatment criterion to require greater certainty of the existence of mental illness rather than merely the appearance of it, before a compulsory order can be made.

Note: the comparative criterion for an assessment order requires the person merely ‘appear to have mental illness’.

Whether the Mental Health Tribunal (or authorised psychiatrist) can be satisfied that the person ‘has’ mental illness, as defined under the Act, will depend on the evidence of the person’s current or recent mental state. If it cannot be satisfied, then an order cannot be made.

What is mental illness?

‘Mental illness’ is defined in section 4 as ‘a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory’.

This criterion does not necessarily require a specific, clear diagnosis however evidence of the severity of the illness (or its symptoms), and how recently these symptoms were observed, is relevant to establishing this criterion.

In accordance with the United Nations Convention on the rights of persons with disabilities, a person should be presumed to not have a disability. As such, the client does not need to prove that they do not have mental illness. It is up to the treating team to prove that they have mental illness. Therefore, in the absence of sufficient cogent evidence, it should be submitted that the person does not have mental illness.

For more information, see the Summary of cases relevant to section 5(a).

What is a ‘sig​nificant’ disturbance

The disturbance must be significant. In WCH [2016] VCAT 1190, VCAT determined that ‘significant’ must have meaning and, ordinarily defined, it means ‘important or of consequence’ ([49]). Therefore, a person will not ‘have mental illness’ if there is insufficient evidence to show, at the time of the hearing, that they have a disturbance of thought, mood, memory or perception that is significant.

See Drug-induced psychosis.

What is not mental illness?

Section 4(2) lists factors that are not (in isolation) to be considered indicative of mental illness, including:

  • political opinion
  • religious beliefs
  • illegal or immoral conduct
  • use of drugs or alcohol (though the serious effects from their use can potentially indicate mental illness).

Importantly, the 2014 Act articulates the following additional factors:

  • ‘anti-social behaviour’ (s. 4(2)(j)) (compared with ‘anti-social personality disorder’ in the 1986 Act)
  • ‘past or current involvement in family conflict’ (s. 4(2)(n)), and
  • ‘previous treatment for mental illness’ (s. 4(2)(o)) – a previous diagnosis or history of mental health treatment will not in itself be sufficient to satisfy this criterion.

Psychiatrists must assess and diagnose the person based on their current mental state and the tribunal must also be satisfied that the person continues to have mental illness at the time of hearing.

In the case of LJR [2014] VMHT 74 (1 December 2014) the tribunal found 5(a) was not met since, at the time of the hearing, there was ‘no evidence of persisting mental illness’.

Neurological conditions that are not mental illness

Section 4(2)(k) excludes intellectual disability from the definition of mental illness. Intellectual disability is a condition with specific diagnostic indicators and generally requires diagnosis before age 18.

The section does not extend to excluding all cognitive disabilities. However, while some medical conditions, such as acquired brain injury, autism spectrum disorder and other neurological disabilities, are characterised by significant disturbances of certain functions (such as memory), the clear intention of the Act is to provide a framework for compulsory psychiatric treatment for mental illness – not all conditions that affect the brain.

Neurological disabilities are not amenable to treatment in the same way as mental illness – treatment may address the consequences of the disability but often it does not remedy it or alleviate its symptoms – nor are mental health services necessarily the appropriate setting for effective and least restrictive management of these conditions.

While a medical condition like dementia may be considered ‘mental illness’, it may not be amenable to treatment. This would be relevant to section 5(b). See also the definition of treatment at section 6 of the Act.

Drug-induced psychosis

The question of significant disturbance may be relevant in cases of drug-induced disturbances. While the person may have been significantly disturbed in thought, perception or mood when they were affected by substances, once the substances have been eliminated from a person’s body, there may no longer be evidence of significant disturbance. For some examples where the tribunal has found that a person does not have mental illness, see OJZ [2016] VMHT 2 (4 January 2016), XFI [2015] VMHT 187, and LJR [2014] VMHT 74.

For more information, see the Summary of cases relevant to section 5(a).

Practice tips

  • Use of language: Be mindful of how your client prefers to characterise their diagnosis or describe their illness or symptoms. Many people experience a diagnosis of mental illness as ‘labelling’ and stigmatising. Some people prefer a reference to being a ‘consumer’, others to having a ‘lived experience of mental illness’, or ‘living with mental illness’ or ‘experiencing mental health issues’.
  • It is often difficult to challenge this criterion without supporting medical evidence.
  • If your client disputes their diagnosis or mental illness generally, you can suggest they seek a second opinion (s. 79). The authorised psychiatrist must ensure the person is assisted to seek such an opinion upon request.
  • Look out for evidence of significant disturbances that are not based on observations from clinicians. Collateral information, such as reports from family members, may be important but they should not be determinative. If claims of significant disturbance are based primarily or solely on family reporting, it may not be enough to persuade the tribunal that the person has mental illness.

Discussion points for engaging with your client

  • What do they think about the diagnosis?
  • Do they agree with what their treating team describes as symptoms?
  • If they had a mental illness in the past, what circumstances have changed?
  • Can they provide another explanation or context for what happened around the time they were admitted to hospital or made subject to compulsory treatment?

Evidence to look for and test

  • What evidence is there on the clinical file of recently exhibited symptoms of mental illness? Remember: past diagnosis or treatment is not definitive.
  • If the symptoms are drug-induced, check whether the symptoms of mental illness have resolved after the drugs have left the person's body, or whether there is evidence of ongoing symptoms.
  • Has a second opinion been obtained or is there conflicting evidence as the nature of the person’s mental illness? Such evidence may indicate this criterion may not be met. Further investigation may be warranted.
  • Does the evidence demonstrate a significant (as opposed to a mild) disturbance of thought, mood, perception or memory?
  • Could any of the symptoms mentioned be attributed to factors rather than their mental illness, such as a person’s anti-social personality or religious or political beliefs or substance use? This may indicate the criterion may not be met.

Summary of cases relevant to section 5(a)

Not met where ‘no evidence of persisting mental illness’ at the time of the hearing

In the case of LJR [2014] VMHT 74 (1 December 2014) the tribunal accepted that, even though the person’s symptoms at the time of his admission to hospital amounted to a significant disturbance of thought and mood (which met the definition of mental illness under section 4(1) the Act), he had adhered to medication and that those symptoms had dissipated in the three weeks of his admission.

The tribunal decided that at the time of the hearing section 5(a) was not met and revoked his order. It found he ‘no longer exhibited symptoms characterised by a significant disturbance in thought, mood or perception and that there was no evidence of a persisting mental illness.’

This decision may be particularly relevant where your client experiences symptoms of drug induced psychosis and/or it is their first admission to hospital.

The ‘​possibility’ of a mental illness is not enough

The tribunal in OJZ [2016] VMHT 2(4 January 2016) explained that, where the person had a diagnosis of drug-induced psychosis, the 'possibility rather than the probability of an underlying mental health issue' was insufficient for it to be 'reasonably satisfied that OJZ has a mental illness'. The tribunal noted that 'the onus is on the treating team to satisfy the tribunal that the treatment criteria under section 5 are established to its reasonable satisfaction. Given the gravity of encroaching on OJZ’s rights through ongoing compulsory treatment, the tribunal was not reasonably satisfied that OJZ has mental illness'. It found that OJZ’s 'use of methamphetamine was on the balance of probabilities the cause of her recent admissions to hospital and, under section 4(2)(l), this cannot be taken to be indicative of mental illness'.

Other cases

Visit Austlii for past Mental Health Review Board decisions.

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Section 5(b): the person needs immediate treatment to prevent serious consequences

This criterion under the Mental Health Act 2014 (Vic) requires the Mental Health Tribunal (or psychiatrist) to carefully consider both the alleged consequences if the person does not receive treatment immediately, and the impact of the proposed treatment(s) on addressing those consequences.

It requires the decision-maker to be satisfied that because of the person’s mental illness:

  • the person needs immediate treatment (that meets the definition of treatment at section 6) to prevent serious consequence(s), and
  • the consequence(s) must be serious, either
    • serious deterioration of the person’s physical or mental health, or
    • serious harm to the person, or another person.

Application of criterion

There may be several consequences alleged and several treatments proposed to be given to the person in order to prevent them occurring. Not all consequences and treatments however will be relevant to this criterion – those which do not meet the high threshold cannot be used as the basis for justifying this criterion met.

The two main parts of the analysis for this criterion are:

  1. The tribunal should start by determining the type, source, severity and imminence of the consequence(s) alleged. Only those which survive this analysis can be considered ‘relevant consequences’
  2. It should then identify the proposed treatment(s) (or any other treatment put forward by the person) and determine which of those treatment(s) meet the definition of treatment and will actually address the relevant consequences.

The consequences of treatment not being provided

  • A deterioration in physical or mental health – requires the tribunal to be satisfied that, without treatment, there is likely to be a worsening of the person’s health or symptoms. This requires a medical assessment to ascertain whether their physical health condition or mental health symptom(s) have, or are likely to, worsen without treatment (see for example ZIF [2015] VMHT 132 (12 August 2015)).
  • Harm – requires evidence of some likely ‘hurt, injury or damage’ whether temporary or permanent and can include physical, emotional or psychological harm (see WCH v MHT [2016] VCAT 199 (23 February 2016)). Certain consequences will not amount to harm such as inconvenience, embarrassment or nuisance. Likewise, a risk to a person’s finances or reputation is unlikely to meet the definition of actual ‘harm’ (or the threshold of ‘serious’), unless it is so severe it compromises a person’s health or safety and to a serious degree. See for example ZIF [2015] VMHT 132 (12 August 2015)).

Preventing ‘serious harm to the person or another person’ is also a harder test to satisfy than the older test of ‘protection of members of the public’ or protecting the person’s ‘safety’, as required by the previous 1986 Act.

To be a relevant consequence, it must have been caused by, or projected to arise from, the person’s mental illness. Where the cause is not mental illness, it cannot be ‘treated’ under a treatment order.

Consequences arising from other sources, such as socioeconomic circumstances, family violence, inherent personality factors or substance abuse (unless the substance use creates or exacerbates mental illness which then creates a consequence), will not be relevant and cannot be a basis for section 5(b). For example:

  • Substance use – s. 4(3) permits the temporary or permanent physiological, psychological or biochemcial effects of drug use to be considered as mental illness. However, it does not extend to the treatment of drug use itself (ie the cause of the effects). See s. 4(2)(l)). Providing treatment for substance use can be ancillary, but not justify the treatment order alone.
  • Other health conditions not impacted by mental illness.

The Act introduces the qualifier ‘serious’ to this criterion, suggesting evidence of a greater degree of deterioration will be needed before a treatment order will be justified. The qualifier appears to be intended to limit the restrictions on a person’s rights to autonomy and freedom from treatment without consent in only the most compelling of circumstances. This is mirrored in the mental health principles set out in section 11.

In the VCAT decision of WCH v Mental Health Tribunal (Human Rights) (Amended) [2016] VCAT 199 (23 February 2016), when determining whether deterioration or harm associated with the mental illness was serious, VCAT adopted its ordinary meaning, namely that 'serious' means 'important, demanding of consideration, giving cause for apprehension or critical' [87].

In relation to deterioration, if the deterioration in a person's mental health is not distressing and does not affect the person's functioning in any way it is unlikely to meet the threshold of 'serious' as found in the case of WRH [2015] VMHT 27 (16 February 2015).

Similarly, as the tribunal in JMN [2015] VMHT 29 (9 February 2015) confirmed, ‘serious’ means 'not slight or negligible’ and, as with ‘harm’ must be assessed ‘in the context of an individual patient’s life and circumstances’.

The serious deterioration or serious harm to the person or another person must be sufficiently imminent as to require immediate treatment to prevent it.

The tribunal should consider the remoteness or likelihood of the harm or deterioration eventuating and how soon it would occur or reach a serious level, if immediate treatment were not provided. If consequences are more likely to arise gradually over time, or the circumstances have changed since allegations of previous incidents of harm, treatment is less likely to be found to be immediately necessary.

If the consequence is too remote, then treatment won’t be ‘immediately needed’.

For example, recent past history indicated no deterioration in a person’s mental state for a period of around two years without treatment (as in the case of USW [2014] VMHT 80 (9 December 2014)) rendered the consequence effectively too remote.

Likewise, as XAN [2014] VMHT 12 (24 July 2014) illustrates, where the only evidence of ‘serious harm’ is a one-off incident in the past (a car chase two years prior) and circumstances have changed (he was no longer driving) then it is too remote to justify compulsory treatment.

Identify the proposed treatment(s)

The tribunal must clearly identify what the proposed treatment is and be satisfied that the proposed treatment meets the definition of treatment.

If the mental health service has not identified the precise treatment, the tribunal will need to make these inquiries. Without this, it will be impossible to assess whether it is immediately necessary to prevent the relevant consequence(s).

The definition of treatment for mental illness (s. 6) is where ‘things are done to the person in the course of exercise of professional skills:

  1. to remedy the mental illness, or
  2. to alleviate the symptoms AND reduce the ill effects of the mental illness.’

This is a narrower definition than under the previous Act. It is not enough that the intervention or medication merely reduces the ill effects of the illness. Unless it either remedies the illness or alleviates its symptoms, then it does not meet the definition and cannot be considered as part of the section 5 analysis.

Other interventions may be important ancillaries to treatment (such as diagnosis or assessment and monitoring and observation) however, these arguably do not meet the definition of treatment at section 6. Drug and alcohol counselling, whilst it may be desirable, would be regarded the same way.

The case of EDY [2015] VMHT 37 (12 March 2015) highlights that containment or detention alone, in the absence of medication, will not generally constitute ‘treatment’. It is not sufficient for the treatment to prevent a risk – it must also be shown to ‘have a positive effect’ on a person’s symptoms. The tribunal found that:

  • ‘immediate treatment to prevent imputes a treatability criterion for any compulsory treatment’, and
  • unless a person’s condition is treatable, in the case of inpatient orders, ‘the person’s confinement becomes preventative detention, which is not within the objectives and purpose of the Act’.

This is relevant in cases where a person is detained in hospital to prevent access to illicit drugs. Even where there is evidence that drug use may cause deterioration in a person’s mental health, their containment, of itself, cannot be regarded as ‘treatment’. Again, whilst the Act may permit compulsory treatment for the effects of drug use in some case (see s. 4(3)), its purpose is not to authorise compulsory treatment for the cause of those effects, namely treatment for drug abuse (see s. 4(2)(l)).

If the proposed treatment will not be effective in addressing the consequence it is proposed to manage, then it will not ‘prevent’ the consequence and so cannot be necessary.

Sometimes a person’s diagnosed illness can be resistant to treatment. Without cogent evidence that the immediate treatment would in fact prevent the serious deterioration or serious harm, the criterion will not be satisfied. Similarly, if the treatment will not prevent a worsening of a person’s mental illness, it will not be needed.  This is relevant to cases of dementia which can be considered ‘mental illness’ but is not amenable to treatment.

The tribunal in BQD [2015] VMHT 53 (1 April 2015) confirmed that ‘the need for treatment must be compelling and specific rather than just a general need for ongoing treatment’ and if the treatment team cannot sufficiently ‘articulate the need for immediate treatment in the context of prevention’ then section 5(b) will not be satisfied.

It will not be enough that treatment is merely clinically indicated or recommended. If a person identifies an alternative medication, say, that would equally prevent the serious consequences, then, consistent with the requirement to consider the person’s views and preferences at section 5(2), the tribunal should properly find the ‘immediate treatment’ is the person’s preferred treatment.

Likewise, other interventions or orders (eg administration orders, guardianship orders or intervention orders) may prevent the risk, which may obviate the need for proposed treatment if the person regards them as less restrictive.

If treatment causes more harm than good it is unlikely to be considered ‘needed’. Consideration should also be given to the likely detrimental effects of the treatment or the way it is provided (eg side effects of medication or risk of institutionalisation). An argument could be made that, on balance, the proposed treatment cannot be properly described as ‘needed’.

This criterion would then be met but on a different basis to the one alleged by the treating team, and would be least restrictive and consistent with the person’s dignity and respect. As a result of this re-characterisation of the basis for this criterion, it is therefore highly likely that section 5(d) will not be met as a result of the person being able to get that (alternative) treatment voluntarily (see Section 5(d) – less restrictive treatment for more information).

In FFY [2015] VMHT 33 (5 February 2015) FFY preferred oral medication. The tribunal found it would be equally effective as depot (injectable) medication, proposed by the treating team, in preventing the serious consequences. Therefore, it found section 5(b) was met on that basis, but that ultimately section 5(d) was not met as he could get oral medication voluntarily.

Discussion points for engaging your client

  • What do they think about each of the consequences alleged? Are they incorrect or exaggerated and if so, can your client correct them or provide another explanation for what happened?
  • How do they feel about the proposed treatment? Has it had or will it have the beneficial effect the treating team suggest? Are there any side effects?
  • Is there another treatment or medication your client may prefer? Why do they prefer it? Will it address or prevent the relevant serious consequences and if so, how?
  • Can the consequences be managed in other, less restrictive ways (for example, through counselling)?
  • What will happen if they do not get the proposed treatment? Have they experienced this in the past?

Look for and test the evidence

  • What evidence is there of actual deterioration in the person’s mental or physical health? How severe was it and over what period of time did the relapse occur?
  • What evidence is there of actual harm or injury to the person or another person? Who reported it? Was it serious or relatively minor? When did the incidents occur? Was it a one-off?
  • What is the proposed treatment the psychiatrists have identified? Is there evidence on the file that demonstrates the treatments either actually remedy the illness or alleviate the symptoms (and therefore meet the criteria for treatment under section 6)?
  • How effective is the treatment currently? What evidence is there that the proposed treatment or interventions actually prevent the serious consequences from occurring?
  • Can the treatment be provided at a later stage – are there are any safeguards that could identify and prevent the escalation of risk before it becomes serious? What are the expected time frames?
  • Do the clinical file or other third parties support what your client is saying?

Summary of cases relevant to section 5(b)

In the case of WCH v Mental Health Tribunal (Human Rights) (Amended) [2016] VCAT 199 (23 February 2016), the VCAT member found that:

‘The word ‘serious’ has been described as having a meaning which includes important, demanding consideration and not slight or negligible. The Macquarie Dictionary defines the term, in the context of an illness as ‘giving cause for apprehension; critical’. The word harm has been defined as including ‘hurt, injury or damage’. I accept and apply those definitions. [65]

VCAT considered it unlikely that the person would experience a ‘serious’ deterioration in their mental health without opportunities for that to be detected and appropriate support and treatment offered.

Taking into account the s. 11 principles, and applying s. 5(b) in a manner that was consistent with the charter, VCAT was not satisfied that without treatment there would be a serious deterioration in their mental health, or a risk of serious harm to themself or others.

The tribunal in JMN [2015] VMHT 29 (9 February 2015) held that harm is defined as, amongst other things, hurt, injury or damage. Importantly, what constitutes both seriousness and harm needs to be assessed in the context of an individual patient’s life and circumstances.’

In IDF [2014] VMHT 18 (14 August 2014) despite the psychiatrist's concern about their refusal to undergo certain investigations and treatment for his physical health, the tribunal found ‘no evidence to suggest IDF’s mental illness has adversely impacted on his decisions in relation to his physical health care’ given he had ‘been living independently for the last 30 years [and] ... appeared to be physically fit for his age’.

The tribunal found that considering all the evidence ‘and having regard to IDF’s stated wishes, rights, dignity and autonomy, [it] was not satisfied that IDF needs immediate treatment to prevent serious deterioration in his mental or physical health’.

Similarly, in XNU [2014] VMHT 61 (10 November 2014) whilst the tribunal accepted XNU needed immediate treatment to prevent deterioration in her mental health, a majority found, in the current circumstances, if she eventually relapsed without treatment it was likely to be gradual and picked up in any event by her fortnightly appointments with her GP, and therefore could not be regarded as ‘serious’.

The legal member, in a dissenting opinion in WRH [2015] VMHT 27 (16 February 2015), found that the person’s beliefs about telepathy were not distressing to her and ‘nor was there evidence that her mental illness had affected her functionality in any way’, therefore the deterioration in WRH’s mental state did not meet the threshold ‘serious’.

In the case of WCH v Mental Health Tribunal (Human Rights) (Amended) [2016] VCAT 199 (23 February 2016), VCAT found that, whilst it accepted that with any reduction and/or cessation of medication there was a risk that the person would become unwell again it found that the evidence did not support a finding that the clear risk of deterioration could be described as ‘serious’. The VCAT found that, in relation to concerns expressed by the treating team about WCH’s behaviour some years prior, it ‘[could not] with confidence find that it is more probable than not that there was then a deterioration associated with the mental illness [and] [in any event, the consequences for WCH could not be described as important, demanding of consideration, giving cause for apprehension or critical’ [87].

The case of USW [2014] VMHT 80 (9 December 2014) is an example of the tribunal finding immediate treatment was not needed to prevent serious deterioration in the person’s mental health. The fact there had been no concerns with USW’s deterioration in the two years prior when he had been without antipsychotic medication suggested treatment was not needed immediately.

In the case of XAN [2014] VMHT 12 (24 July 2014) the tribunal noted section 5(b) could not be justified on basis of serious harm where the only reference was to a car chase two years prior as XAN was not currently driving.

In the case of EDY [2015] VMHT 37 (12 March 2015) the person, EDY, was detained in hospital yet not receiving any medication. The tribunal found that though the containment ‘may have been reducing the ill effects of EDY’s mental illness’ or protected her from poor decision-making, it did not alleviate the symptoms of her mental illness as it did not have ‘any positive effect in addressing ... the delusions from which she suffers’.

The tribunal also commented that ‘immediate treatment to prevent imputes a treatability criterion for any compulsory treatment’, and that, unless a person’s condition is treatable, in the case of inpatient orders, ‘the person’s confinement becomes preventative detention, which is not within the objectives and purpose of the Act’.

The tribunal in BQD [2015] VMHT 53 (1 April 2015) found that ‘the need for treatment must be compelling and specific rather than just a general need for ongoing treatment’. In this case, the treatment team could not sufficiently ‘articulate the need for immediate treatment in the context of prevention’ and the criterion was not met and the order revoked.

In FFY [2015] VMHT 33 (5 February 2015), although the treating team preferred depot (injectable) medication, the tribunal was satisfied that the person was likely to be able to get other alternative treatment (oral medication, which FFY preferred) which would prevent the serious consequences in section 5(b) from occurring. The tribunal then found that a less restrictive option to compulsory treatment was reasonably available and section 5(d) was not met.

Other cases

See also past decisions from the Mental Health Review Board:

More information

Read more about the other treatment criteria:

Section 5(c): immediate treatment will be provided if the person is subject to a compulsory treatment order

The treatment that will be provided under section 5(c) of the Mental Health Act 2014 (Vic) must be:

  • the same treatment identified under section 5(b) as being immediately necessary to prevent a relevant, serious consequence, and
  • actually provided as soon as the order is made (as opposed to being ‘theoretically’ available).

If there is no actual treatment being provided, or proposed to be offered immediately (compared with, say, monitoring or containment alone) then arguably this criterion will not be met.

For example, where a person on a community (temporary) treatment order is receiving medication from their GP and the only treatment being provided by the mental health service is 'monitoring', then it is arguable that no treatment will be provided under the order. Likewise, if the service does not have the resources and expertise to deliver the type of treatment required, the treatment would not be 'provided' under the order.

Similarly, the case of NLF [2014] VMHT 35 (8 September 2014) illustrates that where the evidence is unclear as to whether an order would ensure return to hospital and treatment of a person who was absent without leave from an inpatient unit, then section 5(c) will not be met.

Discussion point for engaging your client

  • Have they already, or will they be likely to get the necessary treatment which is proposed in the near future? If not, why not?

Look for and test the evidence

  • Identify the specific treatment(s) which have been determined to be immediately necessary under section 5(b).
  • Will each proposed treatment actually be provided to the person on an order?

Summary of cases relevant to section 5(c)

Unclear if person who was AWOL would be returned and treated due to the order

In NLF [2014] VMHT 35 (8 September 2014) the Mental Health Tribunal revoked the treatment order of a person who was absent from the inpatient unit without leave at the time of her hearing.

It was not satisfied NLF would be able to continue to get treatment if an order was made, as it was unclear whether the order facilitated police on a previous occasion apprehending her and returning her to the ward, or whether it was her ‘lifestyle and behaviour’ including itinerancy and drug use that drew police attention.

See also the case of EDY [2015] VMHT 37 (12 March 2015).

More information

Read more about the other treatment criteria:

Section 5(d): no less restrictive means are reasonably available to receive immediate treatment

The Mental Health Tribunal can only be satisfied section 5(d) of the Mental Health Act 2014 (Vic) is met if it finds there is, ‘no other reasonable alternative to compulsory treatment available in order to prevent the occurrences of the serious deterioration and serious harm referred to in section 5(b)’ (see VLU [2014] VMHT 37 (16 September 2014)).

The tribunal in that case stressed that this requires ‘the level of restriction to be as little as possible and carefully tailored so that the restriction is no more than necessary to achieve the objective’.

One clear intention of the Act is that compulsory treatment is used only as a last resort. Its use and duration should be minimised, voluntary treatment preferred and a person supported to make or participate in decisions about their own treatment.

These are reflected in the objectives of the Act and the mental health principles, in particular at sections 10(b) and (d) and 11(1)(a), (c) and (e). See About the Mental Health Act 2014 and its principles.

The tribunal, as the primary decision-maker in relation to treatment orders, should enquire about any alternative measures that the person regards as less intrusive of their freedom of decision-making than a compulsory order.

What is ‘less restrictive means’?

Voluntary treatment is necessarily less restrictive than compulsory treatment, but determining precisely what constitutes ‘least restrictive means’ will depend upon the individual and their own views and preferences about treatment and their own unique recovery goals. It may include other support, supervision, monitoring, follow up with a private psychiatrist, doctor or family member.

The tribunal should ask the person:

  • Would you engage in treatment voluntarily and, if so, how would you do so?
  • What are the outcomes you hope to achieve, consistent with application of the mental health principles of recovery and self-determination (s. 11(1)(c) and (d))?

A number of factors will be relevant to consider.

In the case of FFY [2015] VMHT 33 (5 February 2015), the person had consistently held a strong preference for oral medication rather than the depot (injectable) medication preferred by their treating psychiatrist.

The tribunal found that, given FFY’s strong views about treatment and good engagement with services, consistent with section 11(d), he could get the immediate treatment he required as a voluntary patient and so revoked the order.

Where temporary supervision of medication through the mobile support team, or other mechanism, is available upon discharge from hospital, then this can reassure the tribunal that treatment can be obtained voluntarily, despite past non-compliance. See XFH [2015] VMHT 25 (5 February 2015).

Where a person has demonstrated good engagement with services and compliance with treatment then the tribunal is more likely to give them the opportunity to manage his mental health voluntarily. See LEH [2015] VMHT 35 (2 March 2015).

When a person has a strong preference to be treated by someone other than their treating team (such as a doctor or a private psychiatrist) and their relationship with the current treating team is counter-therapeutic, this criterion will not be met. See BYW [2015] VMHT 1 (9 January 2015).

This is also consistent with the principles of best therapeutic outcomes, recovery and full participation in community life (see s. 11(b)).

Capacity to consent to treatment and ‘insight’ are not necessary

If a person agrees to or doesn’t resist treatment (even if reluctantly or for purely pragmatic reasons), and even if they lack capacity or insight to make an informed decision, legal compulsion may not be required to ensure treatment.

Arguably, the person’s acquiescence to or compliance with treatment need only be as reliable or durable as is necessary for compulsory treatment to be received in the short-term.

In the case of FFY [2015] VMHT 33 (5 February 2015) the tribunal found that, despite his ‘very limited understanding of his mental illness, symptoms and the function of medication in treating his condition’ and a ‘reported history of non-adherence to treatment’, he could get treatment voluntarily given his high level of engagement with community supports and nearly four years without hospitalisation.

Nonetheless, presenting evidence of an informed understanding of illness and the need for treatment can be very persuasive when you are arguing that a compulsory order is not required because it provides greater reassurance that the person will voluntarily accept the treatment.

Voluntary treatment in these circumstances clearly furthers the mental health principles in promoting the person’s dignity and autonomy (see ss. 11(1)(a), (c) and (e)).

The case of NNV [2014] VMHT 27 (16 September 2014) also highlights the importance of taking into account the person’s current circumstances and even recent improvements in their mental health in making an assessment of their level of understanding of their illness and acceptance of treatment.

‘Reasonably’ available

The means and services for providing treatment do not necessarily have to be proven to be immediately available. The qualification of ‘reasonable’ availability suggests that, so long as the means or services are theoretically available, then this should be sufficient evidence that the criterion is not met.

Whilst some tribunals have taken a stricter view of the availability of treatment under this criterion, others have been prepared to accept the theoretical availability of temporary intensive support such as a mobile support team upon a person’s discharge from hospital. (See XFH [2015] VMHT 25 (5 February 2015) .

Past history of a period of successful voluntary treatment can also be persuasive.

Past non-compliance does not necessarily mean less restrictive (or voluntary) treatment is not reasonably available. It should be viewed in light of the person’s current circumstances and the dignity of risk (s. 11(1)(d)).

Allegations of non-compliance must be corroborated by evidence. The tribunal in HJA [2014] VMHT 59 (27 October 2014) was not prepared to accept uncorroborated assertions from the service about a history of non-compliance.

Discussion points for engaging your client

  • What is their understanding of their diagnosis and the effect of treatment?
  • Do they agree with or accept treatment and why? Have they had voluntary treatment in the past?
  • What are their preferences and wishes regarding treatment, including what is important to them, to help identify any ‘less restrictive means’ or types of treatment?
  • Do they have other family, support people or health professionals who could support them in accessing voluntary treatment or implementing other less restrictive alternatives?
  • What do they say about any allegations of non-compliance? How recently was it? Were there reasons for non-compliance (such as debilitating side effects)? Can the present situation be distinguished?
  • Have they been engaging with treatment and a treating team recently?
  • How would a person remain well or avoid relapse or hospitalisation or avoid incidents of harm?

Look for and test the evidence

  • What does the file say about the person’s current acceptance of and compliance and engagement with treatment and their treating team?
  • What is the evidence of past non-compliance? Who made the allegation? How recent was it?
  • Is there evidence that the person’s views and preferences for treatment have been considered by the treating team? What evidence is there that alternative treatments would not prevent the serious consequences established at section 5(b)?
  • Does the clinical file support what your client is saying?

Summary of cases relevant to section 5(d)

In the case of FFY [2015] VMHT 33 (5 February 2015), the person had consistently held a strong preference for oral medication rather than the depot (injectable) medication preferred by their treating psychiatrist.

While the tribunal accepted that ‘any decision to change to oral medication would involve a degree of risk’, it found that, given FFY’s strong views about treatment and good engagement with services, consistent with section 11(d), he could get the immediate treatment he required as a voluntary patient, and so it revoked the order.

In the case of XFH [2015] VMHT 25 (5 February 2015), despite concerns about past compliance with treatment, the tribunal accepted that XFH could get treatment as a voluntary patient, including with temporary supervision of medication by the Mobile Support Team once discharged from hospital (to ensure compliance). It found there was a least restrictive option that was reasonably available and revoked the order. The tribunal also noted the importance of the section 11(d) principle in coming to its decision.

In the case of HJA [2014] VMHT 59 (27 October 2014) the tribunal accepted that HJA had complied with treatment and would continue do so and therefore revoked his treatment order. Notably, the tribunal was unwilling to accept uncorroborated assertions from the service that HJA had a history of ceasing to take prescribed medication.

In LEH [2015] VMHT 35 (2 March 2015) although the tribunal considered that revoking the treatment order involved a risk of serious deterioration in his mental health and serious harm to himself and another, that ‘level of risk was being well managed by LEH and the treating team’.

This was ‘such a degree of risk as contemplated in section 11(d)’ and that, despite past non-compliance, given his recent compliance with treatment he should have the opportunity to manage his illness as a voluntary patient.

The case of BYW [2015] VMHT 1 (9 January 2015) illustrates that when a person has a strong preference to be treated by someone other than their treating team (such as a doctor or a private psychiatrist) and their relationship with the current treating team is counter-therapeutic, this criterion will not be met.

This is also consistent with the principles of best therapeutic outcomes, recovery and full participation in community life (see s. 11(b)).

In the case of NNV [2014] VMHT 27 (16 September 2014) NNV agreed to stay voluntarily in hospital for treatment and effectively had good insight.

The tribunal highlighted the significant improvement that NNV had made in the days before the hearing and that, despite her being ‘at greater risk’ without treatment, there was insufficient evidence to conclude there was no less restrictive means reasonably available to enable NNV to receive the immediate treatment voluntarily.

More information

Read more about the other treatment criteria: