Victoria Legal Aid

The Mental Health Tribunal – its role and powers

This page outlines the functions and limitations of the Mental Health Tribunal and their role when it comes to treatment of people with a mental illness.

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:
    • has personally given informed consent in writing to ECT (whether they are a compulsory patient (s94(1)(a) or not (s94(2)(a))
    • is a compulsory patient who does not have the capacity to give informed consent to ECT (s94(1)(b))
    • is a voluntary patient but does not have the capacity to give informed consent, but a person with the legal authority to provide informed consent has done so (s. 94(2)(b)).

Electroconvulsive treatment under the Medical Treatment Planning and Decisions Act 2016 (Vic)

  • The MHT can hear an application for compulsory ECT on an adult voluntary patient who does not have the capacity to provide informed consent, but informed consent has been given either:
    • by the person in their instructional directive made under the Medical Treatment Planning and Decisions Act 2016 (Vic), or
    • in writing by the person’s Medical Treatment Decision Maker appointed under the Medical Treatment Planning and Decisions Act 2016 (Vic) (see s 94A of the Mental Health Act 2014)

Neurosurgery for mental illness (ss. 100–104)) (Applications to perform neurosurgery are incredibly rare and are not covered in this guide).

Appeals against a transfer to another designated mental health service within Victoria.

  • a person on as assessment order; a Court assessment order; a temporary treatment order or a treatment order can have their order ‘varied’ so as to be moved to another designated mental health service by the Chief Psychiatrist or an authorised psychiatrist if they are satisfied that the transfer is necessary for the person’s assessment or treatment.
    • An example of this would be transfer from the acute inpatient unit at one hospital to the secure extended care unit at another hospital (s.65).
  • ‘Designated mental health services’ are those listed in Schedule 1External Link of the Mental Health Regulations
  • In making such a variation, the psychiatrist must have regard to the views and preferences of the person (s.65(4))
  • A person subject to such a transfer may apply to the MHT for review of the decision within 20 business days (s. 66).

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)

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.

Treatment order hearings at the Tribunal

A treatment order hearing can come about in four ways:

  • If the person is on a temporary treatment order the tribunal will automatically schedule a hearing before the expiry of that 28-day order (s. 53).
  • If the person is already on a treatment order and the authorised psychiatrist applies for a (further) treatment order the tribunal must conduct a hearing (s. 54). The psychiatrist must apply at least 10 days before the order’s expiry.
  • If the person is subject to either a temporary treatment order or treatment order and that person applies for revocation of that order the tribunal must conduct a hearing as soon as practicable (s. 60).
  • If the person’s community temporary treatment order or community treatment order is varied to an inpatient order the tribunal must conduct a hearing within 28 days of the variation to determine whether to make a treatment order (s. 58).

The tribunal's powers in a treatment order hearing are the same, regardless of how the hearing is initiated.

Powers of the tribunal

At a treatment order hearing, the Mental Health Tribunal must either:

  • make a treatment order, if satisfied that the person meets all of the four treatment criteria, or
  • revoke the order to which the person is subject, if one or more of the treatment criteria are not met.

If the tribunal makes a treatment order, they must also determine:

  • the type of order – either:
    • a community treatment order (s. 52(1)(a)) or
    • an inpatient treatment order (s. 52(1)(b)).
  • the duration of the order:
    • up to a maximum of 12 months for a community treatment order
    • up to a maximum of six months for an inpatient order (for adults)
    • for a young person under 18 years for a maximum of three months in either case (s. 53, ss. 55–57).

While both types of order enable a person to be given compulsory treatment, the key difference between community and inpatient orders is that an inpatient order also enables a person to be taken to and detained in a designated mental health service in order to get that treatment.

Factors the tribunal considers in making a treatment order

The tribunal must consider specific factors when deciding whether the treatment criteria apply, which type of order to make – community or inpatient – and how long the order should be (s. 55(2)).

These factors include:

  • the person’s views and preferences about treatment (including those outlined in an advance statement if they have one)
  • their reasons and any recovery outcomes they want to achieve
  • their nominated person or guardian’s views (if they have one)
  • (in certain circumstances) the views of a carer and parent. This is discussed more in Temporary treatment orders. You can also read more about the rights of carers in the Mental health principles.

An inpatient order can only be made if the tribunal is satisfied the person cannot be treated in the community (s. 55(3)).

The tribunal should also apply the mental health principles, in particular, to ensure that the type and length of an order:

  • is least restrictive of the person
  • promotes full participation in the community
  • respects the person’s views and preferences
  • promotes their autonomy and dignity
  • allows them to make decisions involving a degree of risk (s. 11(1)(a)–(e)).

Key issues in the hearing

If your client is already on a temporary treatment order or treatment order, it is likely that the focus of your advocacy will be on preparing for and appearing at a tribunal hearing. The key issues in dispute are likely to be:

  • whether the tribunal can be satisfied that the treatment criteria are met and on what basis
  • which type of order your client should be placed on
  • whether treatment can be obtained in the community or otherwise without detention, or whether it can only be given in hospital
  • how long any order should be made for
  • your client’s views and preferences about their treatment and their plan for recovery, including treatment options and time frames.

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 CommissionerExternal Link ).

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)External Link 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)External Link for advocacy, or the Mental Health Complaints CommissionerExternal Link .

Decision-making framework – key principles

The Mental Health Tribunal is independent of mental health services.

It is not bound by the rules of evidence (s. 181(1)(a)) and may inform itself on any matter it sees fit (s. 181(1)(c)).

However, it must follow rules of procedural fairness (s. 181(1)(b)) and make decisions about the standard and onus of proof.

The tribunal must also have regard to the mental health principles (s. 11) including when listing and conducting hearings and determining applications.

It also has obligations under the Victorian Charter of Human Rights and Responsibilities 2006 (Vic) (the Charter). See Obligations under the Victorian Charter of Human Rights.

Primary decision-maker and inquisitorial model

The tribunal operates with an inquisitorial rather than adversarial model. As a primary decision-maker under the Act, the tribunal can only make an order if it is ‘satisfied’ that the relevant criteria are met, having had regard to any prescribed factors, rigorously assessed the evidence and applied the mental health principles at s. 11.

Practice tips

  • Encourage the tribunal to draw its own conclusions on the evidence, after making appropriate enquiries including (in the case of a treatment order hearing) whether all four treatment criteria apply, considering the person’s views and preferences about treatment and whether they can be treated without needing to be detained in hospital.
  • Use these principles to bolster arguments that the relevant criteria are not met, where there is insufficient, vague or inconclusive evidence or the person has not had sufficient time to prepare for their hearing.
  • See more detailed information about procedural fairness and the standard and onus of proof.

Practice tips – treatment in SECU and ‘high dependency’ areas

More information

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Disclaimer: The material in this print-out relates to the law as it applies in the state of Victoria. It is intended as a general guide only. Readers should not act on the basis of any material in this print-out without getting legal advice about their own particular situations. Victoria Legal Aid disclaims any liability howsoever caused to any person in respect of any action taken in reliance on the contents of the publication.

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Reviewed 30 March 2022

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