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.
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.
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 ).
- 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.
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 during cross-examination
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.
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
- 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.
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)  VCAT 199 (23 February 2016) and supported by .
However, Bell J in PBU stated that there is a ‘practical obligation’ on the authorised psychiatrist to adduce evidence that a person lacks capacity to give informed consent to medical treatment, otherwise the presumption of capacity in the Act will not be abutted. See PBU at 
Arguably, a 'common sense approach to evidence' should be adopted as described by the Court of Appeal in at  and , 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 (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 , ‘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 : ‘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. In WCH v Mental Health Tribunal (Human Rights) (Amended)  VCAT 199 (23 February 2016) VCAT 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 , 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 s. 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.
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 .
- 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 s. 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 .
Practice tip – case example: weight of procedural fairness in urgent hearings
- The tribunal in the case of 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.
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.
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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Reviewed 24 March 2022