Preparing your case and legal submissions

Preparing your case and legal submissions

Once you have your client’s instructions about what they hope to achieve (including alternatives they may accept) you can use the evidence you have gathered and reviewed to prepare a case theory. Consider the relevant strengths of arguing against each of the treatment criteria, the making of a community rather than an inpatient treatment order, and the length of any such order.

Explain to your client which arguments you propose to focus upon and why. Discuss with them possible alternatives if they do not achieve the desired outcome, and the strengths and weaknesses of each. For example, if the tribunal is likely to find sufficient evidence to make an order, a community treatment order may be preferable to an inpatient order, and similarly a shorter order preferable to a longer or maximum-length order. Seek your client’s consent to the submissions you propose to make.

Practice tips – developing your submissions

Ultimately, crafting and developing submissions involve a judgement in each case, but the following tips may be helpful to consider:

  • You may find it helpful to prepare a chronology, or a written summary of the key issues and evidence from various sources for each point.
  • Consider the most succinct way of explaining the essence of your case to the Mental Health Tribunal and how you will capture the evidence which may emerge during the hearing – from your client or the treating team or otherwise – which can support your case or which you may need to rebut.
  • Focusing on two or three key issues can sometimes be more effective than taking a scattergun approach or trying to run every possible argument, particularly given hearings are usually allocated one hour each in total.
  • If your client’s main concern is leaving hospital, seek instructions to advocate for the making of a community rather than an inpatient order, or a shorter inpatient order, for example if the order is not likely to be revoked outright.
  • The most logical and compelling order in which to present the arguments to the tribunal will not always be to address the criteria sequentially. Sometimes it can be helpful to start with your submission on criterion 5(d) for example and work your way back if you need to.

Whether to provide written submissions

Having identified the key issues you will be focusing on during the hearing, consider whether to provide the relevant parts of the legal submissions, or an outline of submissions, to the tribunal.

Written submissions can be very effective if, for example, the legal issues are complex or novel. These should be focused and tailored to the client and encompass the facts and evidentiary issues on each issue.

If the file has consistent positive reports, or shows strong improvement from a particular date (compliant with medications, pleasant and polite, no overt psychosis evident, etc.) consider making a table that demonstrates these entries and the dates. Positive mental state examinations and psychiatrist reviews are particularly helpful.

If you do provide written submissions, in accordance with the tribunal’s complex case management procedure, email these to the tribunal as early as possible. If your submissions are particularly lengthy and are only provided at the time of the hearing itself, there is a risk the tribunal may adjourn the hearing.

Practice tip

There is a risk in providing written submissions to the tribunal where the evidence is uncertain, or there is any chance your client’s instructions or circumstances will change by the time of the hearing. Being ‘locked in’ by written submissions can impact upon the credibility of your submissions and potentially your client’s evidence at the hearing itself. Even if you do not ultimately give written submissions to the tribunal, having your submissions prepared in writing can help you during the hearing, and you can refer to them if necessary.

Reading them through to your client before the hearing is also a very useful way to confirm instructions and make alterations if necessary. Written submissions can also be useful in the event of an appeal.

See Evidence at a hearing.

Making submissions at the hearing

If (consistent with your instructions), you intend to dispute only one or two of the treatment criteria, it is helpful to be clear about this from the outset and focus your submissions to the Mental Health Tribunal on these points.

It’s important, however, to act on and be consistent with your client’s instructions and what they identify as the important issues for them. For example, if the client disputes having an illness or requiring any treatment, you should make clear at the outset that your client submits that none of the criteria are met, but you can say that your arguments will focus on a specific criterion or criteria.

Practice tips – relevant criteria and principles

  • Remember, since the treatment criteria are essentially considered by the tribunal sequentially, even if you are focusing on one criterion, you may need to address additional criteria to narrow the scope on which you concede they are met. For example, you may be arguing that s. 5(d) is not met because your client can get treatment voluntarily, but you may concede that section 5(b) is met based on the need for immediate treatment to prevent serious deterioration in your client’s mental health, but not to prevent serious harm to others. Emphasise that all four criteria must be met for an order to be made.
  • Your submissions should address the law, the evidence and the specific circumstances of your client’s case, as well as any relevant mental health principles, the application of which should support the conclusions you ask the tribunal to reach.
  • Consider whether to draw the tribunal’s attention to specific evidence in support of each of your arguments, for example file notes, and when to highlight the absence of cogent evidence from the service in relation to their case.

Opening and closing submissions

At the very commencement of the hearing, you should highlight any jurisdictional issues or non-compliance with requirements under the Mental Health Act 2014 (Vic), such as to provide access to information and the clinical file and procedural fairness.

Beyond this, in relation to substantive issues, there is no right or wrong approach to when to make submissions – whether at the beginning of the hearing, at the conclusion, or both. Some tribunal members have a preference for the conduct of hearings and timing of submissions. For example, some may invite you to make opening submissions before hearing evidence from your client or the treating team, and others may ask questions directly of your client before you have a chance to make any opening submissions. Experiment and find out which approach is most effective with your style of advocacy and your local tribunal members.

You do not have to be limited by what the tribunal invites you to do – if you prefer to make your submissions in closing rather than at the start of the hearing, tell the tribunal that this is what you will be doing.

Practice tips – opening and closing submissions

You are not limited to necessarily choosing one type of submission or the other, however consider the following:

  • Opening submissions – can enable you to paint a picture for the tribunal at the outset, which can frame their reading of the evidence or focus them on what you identify as the key issues. Raise any jurisdictional issues here at the outset. You often have more time, rather than being rushed at the end of a hearing, but be mindful of ‘locking in’ submissions when the evidence may change – clients and others may give evidence you are not expecting. You may wish to signal any alternative submissions at the outset, then provide further details in closing.
  • Closing submissions – can be tailored to the specific evidence which came out at the hearing itself and can be useful as an addendum to initial opening submissions, including to flesh out alternative submissions if the tribunal doesn’t appear to agree with your primary submissions (for example, if the tribunal will not revoke, then you urge it to make a community rather than inpatient order). Closing can be a useful time to highlight relevant case law, offer previous Statements of Reasons from the tribunal, or make Charter of Human Rights and Responsibilities arguments. Make sure you have enough copies of relevant documents for the tribunal and a copy for the treating team.
  • Don't underestimate the importance – depending on the level of engagement by the members, closing arguments can leave them with your points reinforced in their mind immediately before deliberating. However, it may appear that a tribunal member has already made up their mind by the closing of evidence. Depending on time, you may need to assert yourself to make closing submissions, particularly if the hearing is running over or is close to time.
  • Flexibility – allowing a degree of flexibility can enable you to be responsive to any changes in your client’s instructions and the evidence in the hearing. You should be prepared to jettison arguments that have become unsustainable during the course of the evidence.

Communication in the hearing

Be mindful of using language in the hearing that your client is able to understand, in particular when asking them specific questions. If using an interpreter, you will need to pause between sentences to allow time for the interpreter to finish interpreting. Be sensitive to your client’s level of engagement or alertness in the hearing or if they are likely to get distressed by the use of certain language or lines of questioning. Be alert to hearing difficulties or comprehension issues, especially when representing someone who speaks English as a second language and does not have an interpreter.

Make eye contact with the tribunal members when making your submissions and be mindful of holding their attention. Give them time to finish writing their notes before moving on to your next point.

Use of precedents and authorities

Past Mental Health Review Board or Mental Health Tribunal decisions can be useful to guide the tribunal as to legal or interpretive issues. However, care should be taken with factual comparisons as each case will turn on its unique facts.

Decisions of the mental health review board and the tribunal are not binding; decisions of VCAT are not binding but will be influential.

Practice tip

De-identified decisions of the former board, the tribunal and VCAT are all available (and searchable) on the Austlii website. See also Treatment criteria for summaries of some relevant tribunal decisions.

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