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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