You should try to meet your client at least the day prior to the hearing to enable you to take instructions, access and review information such as the and obtain any further evidence to support their case (such as from support people or private clinicians or a GP if possible).
Explaining your role and the scope of legal assistance
You should clearly advise your client of the nature of your role as their lawyer, including that you act on their instructions and keep information confidential. You should also advise if your service is free of charge, or if there will be a cost.
It is important to explain to your client the scope of the legal assistance you can provide, including whether it is limited to advice and representation before the Mental Health Tribunal, or whether you can also assist them with other areas of law. Be alert to whether the client needs a referral for other legal matters (criminal, tenancy, family law), or would benefit from a referral to the or the .
Explaining the tribunal process
It is also helpful to clarify for your client , the criteria it must apply and the factors it must consider, and the limits on the issues it can formally decide upon, depending on whether the hearing relates to a or .
Obtaining your client’s instructions
Before the hearing you should try to get detailed instructions from your client to enable you to understand what it is they want to achieve and their views on the key criteria and factors the tribunal must apply.
You may wish to start by getting a general sense of your client’s situation and their views and preferences around treatment including:
- how they feel about their mental health and their diagnosis, and any treatment they’ve had in the past
- any particular concerns about or preferences for treatment and the way they are treated now
- which parts of their treatment or the way they are being treated do they find most restrictive and how could that be improved or ceased altogether.
When discussing views about treatment, generally it is very important to make clear that the tribunal cannot make orders changing treatment, but those issues may be relevant to whether they need an order or not.
Taking your client through each of the treatment criteria, reviewing with them the and eliciting their response to the evidence and assertions by the treating team (in the report) is key to preparing your case. Read more about and the , including tips on what information to draw out and evidence to look for.
- Other issues such as your client’s plans and goals and life beyond treatment and the involvement of mental health services can help you get a sense of who they are, what is important to them and the reasons for their views and preferences. These are relevant to the factors the tribunal must consider in accordance with s. 55(2) and s. 11(1)(c) and 11(3).
- If your client is in hospital, finding out whether their medications are still being titrated, whether they have had any leave from hospital, their plans for accommodation once they are discharged, and who are their main support people in the community will be relevant to any arguments about community versus inpatient treatment and the length of any order if one is made (even though these aren’t issues the tribunal can decide upon in their own right).
Preparing and advising your client
Explain to your client the usual process for a hearing, and how evidence will likely be given – orally and/or in writing. For some clients, appearing before the tribunal can be a daunting, confusing and at times frustrating experience.
Provide your client with advice about the key issues in their case, the kind of evidence the tribunal will be interested to hear and the strengths and weaknesses of their case and your advice about likely outcomes.
- The reality is that much of the evidence required to be considered by the tribunal will be held by the mental health service. Remind your client that even though the treating team may give evidence that they disagree with, it is only the service’s view of the situation and they will have the opportunity to put forward their own view and challenge the conclusions of their treating team.
- Depending on your client’s situation, you may need to clarify how they prefer to give evidence, for example, whether they would feel more comfortable giving evidence before the service, or afterwards. Read more about including eliciting evidence from your client.
Preparing your case and making submissions
Clarifying your client’s instructions on the relevant criteria and the outcome they seek to achieve and any alternative proposals, will guide your preparation and the submissions you make.
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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 24 March 2022