The Mental Health Tribunal (MHT) was established by the MHA 2014 to replace the Mental Health Review Board (MHRB). It is independent of mental health services and plays a vital role as a safeguard of the rights of people subject to compulsory detention and/or treatment.
Unlike the MHRB, the MHT is a primary decision-maker in respect of treatment orders and orders for authorisation of ECT. It also has functions to determine applications regarding court secure treatment orders, applications for revocation of secure treatment orders, application by security patient regarding a grant of leave of absence or review of a direction to be transferred to another designated mental health service, and application for an interstate transfer order or transfer of treatment order for a compulsory patient. The MHT has no jurisdiction in relation to voluntary patients, except in the case of ECT for young people.
The MHT must interpret all statutory provisions consistently with the Charter of Human Rights and Responsibilities Act 2006 (Vic) (“Charter Act”), so far as that is possible, consistent with their purpose. It may also be a public authority under the Charter Act and therefore bound as a public authority to act compatibly with Charter Act rights, but this is yet to be tested.
Applications for revocation of a TTO or TO can be made to the MHT at any time while the order is in force (s 60(1)).
The application may be made by the person themselves or anyone at their request. It can also be made by a guardian, a parent (if the person is under 16) or the Secretary to the Department of Human Services, if a relevant guardianship order is in place. Designated mental health services keep application forms; people wanting to apply should ask a nurse or doctor at the service for a form. A form can also be completed online at the MHT’s website, www.mht.vic.gov.au.
The MHT must conduct a hearing and determine the application as soon as practicable. In practice, how soon the hearing is held depends on where the person lives. Most designated mental health services, whether inpatient or community services, now conduct hearings weekly or fortnightly.
All hearings of the MHT are heard and determined by a division of three members. For all hearings other than those relating to ECT or neurosurgery for mental illness, the division will constitute a legal member (the chairperson), a psychiatrist member or a registered medical practitioner member, and a community member. Where the division is hearing an ECT or neurosurgery matter, a psychiatrist member will sit, rather than a registered medical practitioner.
Section 186 requires psychiatrists to complete the relevant application forms, depending on whether it is an application for a TO or to authorise ECT. The registrar has discretion to reject applications that do not comply or are out of time (s 187). The psychiatrist will prepare a report for the hearing, addressing why they believe the criteria are met. A report must also be prepared when the person has applied for revocation of their TTO or TO. The person must receive a copy of this report at least 48 hours prior to the hearing (see “Access to documents”).
The MHT can inform itself in any way it sees fit (s 181). It is not bound by the rules of evidence but is bound by the rules of procedural fairness. The vision and values outlined by the MHT emphasise that it will take a solution-focused approach to hearings and enable and support the person subject to the order to fully participate in the hearing.
A person can – and where possible should – attend their MHT hearing. The person may be represented by a lawyer (or any person they choose). See “Contacts” in Understanding disability and the law, for contact details for Victoria Legal Aid and the Mental Health Legal Centre.
Hearings are generally closed to the public. Interpreters can be arranged to assist a person at the hearing.
A number of people, including the psychiatrist and the person’s nominated person, are given notice of the hearing and may also appear (s 189). The MHT has powers to issue summons for witnesses. Knowingly giving false or misleading information (s 205) and contempt of the MHT (s 206) are offences.
Hearings may be adjourned, but cannot be adjourned to a date after the expiration of an order unless the MHT is satisfied that exceptional circumstances exist (s 192). In such a case the MHT can extend the duration of the order (TTO or TO) for no more than 10 business days.
MHA 2014 contains stronger provisions for access of information than its predecessor. The designated mental health service must give a person access to any documents it has in connection with a proceeding at least 48 hours before the hearing (s 191). Arguably, this includes both the report prepared by the authorised psychiatrist and the person’s clinical file. Previously, documents were only required to be given 24 hours prior. This right of access is separate from rights that exist under the Freedom of Information Act 1982 (Cth).
An application can be made to the MHT by the authorised psychiatrist to deny the person the subject of the hearing access to information on the file, but only if they are of the opinion that disclosure may cause serious harm to the person or someone else. If the MHT finds the test satisfied, it then has discretion whether to deny disclosure to the person, proceed with the hearing and consider the non-disclosure information itself, however it must do so consistently with the principle of autonomy and dignity outlined in the mental health principles.
There is no longer a provision for non-disclosure based on confidentiality of information provided by third parties, or personal information of third parties.
A party to the proceeding before the MHT may request a written statement of reasons for the decision of the MHT. The request must be in writing, and must be received by the MHT within 20 business days after the MHT’s determination, though the MHT has discretion to accept later requests.
If a person disagrees with the MHT’s decision, they can appeal to the Victorian Civil and Administrative Tribunal (VCAT) within 20 business days after either a) the MHT’s determination; or b) receipt of the statement of reasons if requested. Applications made out of time can be considered if there are special circumstances. A person can always lodge a further application for revocation of a treatment order at the MHT, however there is no right to apply to MHT for revocation of an order authorising ECT.
Reviews can also be sought on a question of law, including questions of law involving the application or interpretation of the Charter Act. For the applicable time limits, see Appealing government and administrative decisions, and “Charter of Human Rights and Responsibilities Act”.