Victoria Legal Aid

Who can attend the hearing

This page outlines who is able to attend a Mental Health Tribunal hearing, and who requires authority or an official invitation.

Hearings are closed to the public (s. 193) and the name and other details identifying a person who is the subject of a hearing before the tribunal cannot be published without the written consent of the president (s. 194).

The person who is the subject of the proceeding and their treating psychiatrist (the mental health service’s representative) are parties to the hearing. Other people may apply to be joined as a party, but this rarely occurs in practice. The tribunal decides this application.

The person has the right to appear and can be represented by anyone of their choosing, including a lawyer (s. 184(3)).

Other people who may attend the hearing as representatives of the mental health service include the person’s contact nurse (if they are in hospital) or their case manager. The consultant psychiatrist or other support workers can sometimes also attend.

Third parties attending at a hearing

Hearings are closed to the public and, while people such as family, carers and support people or a nominated person may be invited to participate, they do not have an automatic right to appear. Sometimes a person may have support people they wish to invite, or family members may have been contacted by the person’s treating team. At other times, the treating team may request medical or nursing students to attend.

The person’s consent should be sought before third parties are invited into the hearing. In general, tribunal members are sensitive to fact the hearing involves significant and sensitive personal information. An advocate can help ensure that there is respect given to the wishes of the person about third parties attending the hearing.

Practice tips – support people your client wishes to invite

  • Prior to the hearing, seek your client’s instructions about whether they have a support person they wish to invite to the hearing. If so, seek your client’s instructions to speak with that person to ascertain whether they are willing to attend and if so what evidence they are likely to give in support of your client. You may wish to refer to this evidence in your submissions or even consider leading evidence from them.
  • Your client may have other support people, or alternative, private practitioners, such as a GP or private psychiatrist, whom they want to attend, but who cannot. Consider discussing the issues with the clinician or requesting a brief letter of support which can be presented to the tribunal as evidence. It may be possible to arrange for the clinician to speak with the tribunal by phone during the hearing. See Evidence at a hearing.
  • The tribunal will usually ask if people attending the hearing wish to say anything however, generally speaking, they do not have to give evidence if they do not wish to.

Practice tips – third parties your client does not want to attend

  • Alternatively, seek your client’s instructions if there are third parties (such as family members or carers) whom they would prefer not to attend.
  • If third parties attend on the hearing day, ask your client how they feel about them attending the hearing. It’s best to do this when the third party is not present, so your client doesn’t feel pressured to agree.
  • Although the tribunal’s Guide to procedural fairnessExternal Link encourages family members and carers to participate in the hearing, you can often advocate for your client’s views to be respected.
  • If the family members or carers have been consulted by the treating team, their views will often be documented in the person’s file and summarised in the report. You can argue there is no need for them to attend the hearing.
  • You can suggest to the tribunal that if they need to hear the third party’s evidence, they only invite them in at the very end of the hearing.

More information

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You can also see more information about the tribunal’s guide to procedural fairnessExternal Link on the Mental Health Tribunal website.

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.

We help Victorians with their legal problems and represent those who need it most. Find legal answers, chat with us online, or call us. You can speak to us in English or ask for an interpreter. You can also find more legal information at www.legalaid.vic.gov.au

Reviewed 24 March 2022

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