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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