Right to access information before a hearing
The Mental Health Act 2014 (Vic) states the authorised psychiatrist ‘must give a person’ subject to an order access to ‘any documents in its possession in connection with the proceeding’ at least 48 hours before the hearing (s. 191(1)). This is a separate and distinct right from the access rights afforded under Freedom of Information laws. It is also a considerably quicker process.
Documents that are ‘in connection with the proceeding’, and other ‘general’ documents
The obligation includes giving the person:
- a copy of the report prepared by the authorised psychiatrist for the hearing
- an opportunity to access their clinical file (this arguably extends beyond the documents that the service may choose to put before the Mental Health Tribunal).
For guidance on access to documents see Practice Note 8 - Access to Documents in Mental Health Tribunal
This practice note confirms the following:
- A mental Health Service must give a person access to certain documents (at a minimum) 48 hours before the hearing [PN 2, 14, 35], and must give them the report whether or not they request it 
- Services do not have the final say on what documents are ‘in connection with the proceeding’ 
- The practice note contains a clearly articulated list of documents that (at a minimum)automatically fall within that category, also noted succinctly in the flowchart – this is empowering for consumers [36-37]
- services have a positive obligation to assist a person to access and understand the report (including use of interpreter) 
- The tribunal expects services to ask the consumer if they want access to other documents (in addition to the report)
- If services have removed any ‘general’ documents from the file that the service doesn’t intend to rely upon the MHT, the consumer (and their lawyer if they have one) must be informed [PN. 38]
- failure to provide access may impact on whether the person can get a fair hearing;
- The tribunal will not accept confidential documents from third parties, and will only accept documents the consumer can see and get a copy of [65-67].
For more information
- Mental Health Tribunal website, ‘Your right to access documents for your Tribunal one-page information sheet for consumers
- Access to documents in Mental Health Tribunal hearings: Overview and with helpful flowcharts which confirm minimum materials to be provided.
Your client’s right to access information extends to you, as their lawyer, acting on their behalf. You should obtain your client’s signed authority and provide a copy to the service on request.
The service should also explain the report (and any other information given to the person) in a way they can best understand, including using an interpreter where required (s. .
Exceptions to access
- the authorised psychiatrist can deny access to documents if he or she is of the opinion that the disclosure of information in such a document may cause serious harm to the person or to another person (s. 191(2)). For more information, see Non-disclosure of documents in limited circumstances
- A person should not need to request access to documents – the obligation is on the service to provide a person with a copy of the report, at the very least, and to offer access to their clinical file.
- The tribunal will often enquire as to whether the person has had sufficient time to read the report and provide instructions. It may stand the matter down if the person needs more time to read the document. It may also do the same if the report has not been explained to the client with an interpreter in a language they understand.
- In video conference hearings in particular, where only limited information from the file is given to the tribunal, you can request access on your client’s behalf to the entire clinical file. The report, after all, is a summary of, and will make reference to, details contained within the progress notes on the file.
If a person has only been handed their report but it hasn’t been explained to them, consider making submissions on the impact of the hearing on procedural fairness for the person.
See Getting access to information and the clinical file in practice.
Failure to provide information at least 48 hours before the hearing
If the mental health service has failed to comply with the 48-hour time frame for giving the client the report, seek your client’s instructions about whether they feel they have had enough time to prepare for the hearing. Ask whether they wish to proceed with the hearing or request an adjournment for more time to prepare, consistent with the right to a fair hearing under the Victorian charter (s. 24) and procedural fairness under the Act (s. 181(1)(b)).
Access to clinical files: hospital and community mental health services
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 available clinical file. Older notes can sometimes be accessed by arrangement with the treating team.
If your client has only recently been discharged from hospital, the hospital may still have their inpatient file available. You will need a signed authority from your client. Typically, you will place the original on the hospital file and keep a photocopy.
Community mental health service files
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. You should advise the service if you want to see the entire file, as older documents will be archived, and they will need time to retrieve them.
Note that there may not be an automatic right to access older documents as the Tribunal’s Practice Note 8 only prescribes the last three months of community notes as being ‘in connection with the hearing’. However, these older documents may be very useful and can still be requested. If the service refuses to provide them, it is still possible to argue that they are ‘in connection with the hearing’, especially if the report is relying on historical issues to support their application for a treatment order.
If your client is in the community, the Report on Compulsory Treatment will usually be provided to the client sometime in the weeks before the hearing. To access the file, or to obtain a copy of the report directly from the community mental health service, you will need a signed authority from your client. File access will generally be by appointment.
- Seek your client’s instructions if they have not been given the report and/or offered access to their file 48 hours before the hearing. It may also be worth considering submissions on revocation of the person’s order given the failure to provide procedural fairness. This is particularly relevant if adjourning the hearing would mean having to extend the person’s order.
- When the client wishes to proceed with the hearing because, for example, adjourning the hearing risks prolonging their detention in hospital, the procedural fairness concerns can be raised directly with the tribunal as a preliminary matter, or pursued by way of a complaint, either directly to the mental health service, or to the Mental Health Complaints Commissioner.
- Many services including community mental health services, have moved to electronic records. This may be made available to you in the form of a large PDF file on a CD-ROM, however you will not be given a copy and will likely need to arrange to view it at the service. This may take longer so allow yourself extra time. Some services will allow a limited amount of pages to be printed.
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Reviewed 02 June 2022