Evidence at a hearing

Evidence at a hearing

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.

A thorough review of the evidence likely to be presented by the service will enable you to prepare your case most effectively. See Access to information and the clinical file and Report on compulsory treatment.

Eliciting evidence

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.

Practice tips

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 Going to a Mental Health Tribunal hearing).
  • 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.

Practice tip

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

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.

For a more detailed list of the issues relevant to each of the treatment criteria and the type and duration of orders, see the discussion points outlined in Treatment criteria.

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
    • accommodation.
  • 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.

See also Who can attend the hearing for information about who can participate in a hearing, including third parties.

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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