The Mental Health Tribunal – its role and powers

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.

More information

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