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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