Getting access to information and the clinical file in practice

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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