Download In the last two years in Victoria the potentially

An Optimally Rights Recognising Mental Health Tribunal – What can be
Learnt from Australian Jurisdictions?1
Sophie Delaney2
The shortcomings of a mental health system where each state and territory
legislates for and runs its own mental health system have been starkly
highlighted in Australia by the recent case of Claude Gabriel. The family of
a young man found unfit to plead to the murder of a young Queensland
woman had sought for some time for him to be transferred from the forensic
mental health service in Queensland to that in Victoria so that he could be
closer to them. Rather than responding speedily to his family’s requests for
legislative reform, the Victorian Government did not move until Claude
Gabriel had left Australia, his photograph had been featured prominently and
regularly in Australia-wide media, a particularly destructive campaign of
media exposure of forensic patients taken place in Queensland3, and the
impact of the young girl’s tragic death revisited on all affected by it.
Considerable government resources are now going into legislative
provisions to allow for cross-border transfers and treatment around
1
Australia. People living near interstate borders have been concerned for
some time about gaps in service provision4.
The right to be treated as near as possible to family and friends is enshrined
in the United Nations Principles for the Protection of Persons with Mental
Illness and for the Improvement of Mental Health Care5. All Australian State
and Territory Governments agreed to bring their legislative schemes in line
with the Principles by 19986. The Commonwealth Department of Health and
Aged Care has monitored state and territory compliance with this agreement
through the development of a “Rights Analysis Instrument”. A report was
produced in 20007. The usefulness of both the United Nations Principles and
the Rights Analysis Instrument has been called into question8.
What is clear is that there remain significant inconsistencies between states
and territories within Australia as to the extent to which both rights
recognized in the Principles, and rights that go beyond the content of that
document, are implemented. In terms of the former, Victoria is rated as
performing considerably better than most other jurisdictions within
Australia9. A close analysis indicates that it is indeed in the realm of
“aspirational” provisions that Victoria’s Mental Health Act 1986 has its
2
most comprehensive consistency with the Principles10. Looking beyond the
principles according to which treatment and care are to be provided to
practical mechanisms for their enforcement, the deficiencies of the Victorian
Act become clear – and so too does the need to question conclusions that the
Victorian Act to a large extent complies with those Principles11.
The Conference12 to mark the 15th anniversary of Victoria’s Mental Health
Review Board is testament to the now well established presence in each
Australian state and territory of these mental health review tribunals.
Acknowledging the limitations of such a focus, the aim of this paper is to
propose some optimally rights recognizing features which would
characterize a “best practice” tribunal. In the process, what is highlighted is
how very different people’s rights around involuntary treatment are
depending on the state or territory in which treatment is provided. It has
always been an interest of the author that purportedly universal rights are not
consistently recognized even within Australia. Not only does our state based
system appear questionable in terms of human rights considerations, but it
must also be queried in terms of the sorts of difficulties highlighted by case
of Claude Gabriel, and the broader questions of resourcing and duplication
3
of services with separate mental health and mental health law systems in
each jurisdiction.
The model proposed here is in no way exhaustive – some key features of
such tribunals will be considered, but no means every such feature. The
focus is on issues of Tribunal jurisdiction and operation – equally important
issues such as criteria for involuntary treatment are not canvassed here. Nor
could it be said to be an “optimum” model in any real sense. No
consideration is given to models outside Australian jurisdictions.
Consideration is limited to features which actually exist in practice in
Australia. A truly optimal model would have to be open to features not
already implemented in any jurisdiction. What was clear from the discussion
at Victoria’s 15th Anniversary Conference was the need to think creatively
about solutions to the challenge of ensuring mental health tribunals are as
effective and meaningful as they can be. However, a model based on
features already in existence in Australia is a useful starting point.
4
What does the Tribunal Review – Can it Make Decisions about the Type of
Treatment Provided?
All mental health tribunals around Australia review involuntary status,
whether as inpatient or subject to involuntary treatment in the community.
The more interesting issue is what beyond that tribunals are empowered to
review.
The Principles make it clear that, as well as being empowered to review
involuntary status, tribunals should have power to make orders about the
specific treatment being received. They state that, where someone is to be
treated against their wishes, they should be able to appeal against the
treatment they are receiving13.
They also facilitate decision making about treatment as well as status in that,
unless treatment is urgently necessary to prevent immediate or imminent
harm, treatment must be authorized separately by a tribunal from involuntary
status. In both Tasmania14 and South Australia15 effect is given to this – the
tribunals authorizes treatment separately from involuntary inpatient status in the latter case unless it is urgently required. This particular provision of
5
the Principles highlights their inpatient focus – it may make sense that there
be separate decisions made about involuntary detention and then treatment,
but how would that translate to people subject to involuntary community
treatment? It is conceivable that a community treatment order that does not
authorize treatment might be useful in ensuring that a person is monitored –
but in many cases a community order that does not of itself authorize
treatment is meaningless. In any event, this principle does translate
meaningfully to community based treatment when considered in terms of
facilitating a patient seeking not only to change their involuntary status, but
the type of treatment they are receiving. Experience acing as a representative
of people subject to involuntary status teaches that there are often alternative
positions put by patients. A person whose first preference may be for no
treatment may also have a very clear secondary position that, if they are
going to be forced to have some form of medication, it should not be that
which causes them stigmatizing and psychologically damaging weight gain,
for example. People are frustrated by the Victorian situation where the
Board is not empowered to order a change in treatment.
The power to make orders about treatment does exist in a number of
Australian jurisdictions. In the Northern Territory a community management
6
order specifies treatment, including medication, and can be varied by the
Mental Health Review Tribunal if there has been a significant change in the
person’s condition16. In Tasmania community treatment orders can specify
medical treatment, and the Mental Health Tribunal can vary the order17. In
both New South Wales18 and Western Australia19 treatment plans can be
attached to orders and varied by the tribunals. It is always crucial to consider
the relationship between what is facilitated in legislation and what occurs in
practice. In New South Wales, for example, a Procedural Note of the
Tribunal states that “Generally, a particular dose of a particular medication
should not be stipulated”20.
The requirement for a tribunal to approve a treatment plan, and power to
vary it, would give more meaningful effect to the requirement in the
Principles of individually prescribed plans which are discussed with the
patient and regularly reviewed21. The Victorian Act states that patients must
have Individual Service Plans22. As part of a performance audit of public
mental health services in 2002 Victoria’s Auditor General found 31% of
patients whose clinical files were reviewed had not received such a plan23.
The importance of such plans in securing people’s right to access optimal
services has been recognised by others.24Some tribunal oversight of such
7
plans would be a useful quality assurance mechanism, if only to ensure that
each patient had a plan and the attendant opportunity to benefit from
comprehensive quality care encompassing some agreed progress towards the
least restrictive alternative.
The Australian Capital Territory’s Mental Health Act, by way of contrast to
the above jurisdictions, expressly precludes the Mental Health Tribunal
prescribing particular forms of medication25. An argument often raised in
opposition to suggestions that the capacity to vary treatment should be given
to the Victorian Mental Health Review Board is that it is not the place of
tribunals to make clinical decisions26. This argument overlooks the fact that
such tribunals already exercise extensive clinical judgment. In relation to the
Victorian Board, for example, decisions are routinely made as to:
 Whether the person has a mental illness;
 Whether it is an illness which will respond to treatment;
 Whether there will be a significant deterioration in the person’s health
in the absence of receipt of a given treatment.
 Whether an alternative form of treatment proposed by the person
would constitute “adequate treatment” for their illness27.
8
If tribunals are equipped to make those types of decisions, they are equipped
in appropriate cases to make decisions as to what sort of treatment should be
given.
What Does the Tribunal Review – Can it Make Decisions about ElectroConvulsive Therapy?
The Rights Analysis Instrument identifies “clarifying the status of electroconvulsive therapy”28 as a necessary refinement of the Principles. The
Principles certainly fail to articulate the criteria which must be met before
ECT, as opposed to treatment more generally, can be administered without
someone’s consent. However, given that the Principles state that a patient
should be able to challenge any type of involuntary treatment, what flows
from that is that those facing ECT against their will should be able to appeal
to an independent tribunal. ECT is still a controversial treatment in the sense
that it causes concern in the community.29 In New South Wales, the
Northern Territory, Queensland, South Australia and Western Australia30 the
9
tribunals have jurisdiction to over-rule decisions of clinicians to perform
ECT. In Victoria the Board has no such power. This illustrates particularly
eloquently the general failing of Victorian mental health legislation in that it
is big on aspirational principles but not on mechanisms for their realization.
The Victorian Act contains particularly complex criteria which must be met
before someone can be given ECT against their will.31 What it lacks is
access to a tribunal to seek to show that those criteria are no met. The view
promoted by Victoria’s Mental Health Legal Centre32 that there need to
greater safeguards around ECT in Victoria is shared by others including
Victoria’s Health Services Commissioner33.
What Does the Tribunal review – Can it Make Decisions about Voluntary
Patients or Handle General Complaints about Mental Health Services?
The Principles, Victoria’s Mental Health Act 1986 Australian mental health
legislation generally are severely limited in that, beyond aspirational
statements of principle they largely focus on involuntary treatment. An issue
of ongoing concern to users of mental health services in Victoria is the
powerlessness of people having difficulty accessing services to challenge
refusal of admission. The formal status of voluntary patient was in fact
10
removed from Victoria’s Mental Health Act in 1995, as was the express
right to complain to the Office of the Chief Psychiatrist about a refusal to
admit34. Following the removal of that provision the Office of the Chief
Psychiatrist still has a more general power to direct a service to admit
someone35. It may be that processes of negotiation between bodies such as
that Office and the services themselves, as opposed to the use of legislative
power to direct, can achieve useful outcomes.36
However, broader questions must be asked about the appropriateness of a
body such as the Office of the Chief Psychiatrist to perform the role of
complaints mechanism at all. It is part of the Department responsible for the
mental health services in question and has a dual role of advising/auditing
services and dealing with complaints from service users. As has been
identified by others, there is a need for an independent reviewing authority
with a complaints handling jurisdiction37.
A body such as the Office of the Chief Psychiatrist may be able to provide a
useful form of scrutiny of and advice for services, but cannot properly
perform both roles. A case in point encountered by the Mental Health Legal
Centre involved a client who contacted the Office of the Chief Psychiatrist
11
only to be told that the service had already sought assistance in relation to
the same issue. The situation of another person who contacted the Centre
highlights the problems of conflict or confusion of role. The person made a
complaint to the Office of the Chief Psychiatrist about intervention in their
life by a mental health service. When what they were expecting was an
investigation with some degree of independence, they were surprised to find
that that Office directly contacted the service in question expressing the
opinion that the complainant should be assessed for involuntary treatment.
Access to a tribunal like the Mental Health Review Board (albeit not ideally
independent38) may be a more meaningful avenue for seeking to assert the
highly aspirational right to access high quality mental health care as required
both under the Principles39 and the Victorian Act40. Currently Victorian
Board has none of what might be regarded as a more general “complaints”
jurisdiction, in the sense that it is limited to the power to determine the
following:
 whether a person’s involuntary status should or should not continue;
12
 whether a person should be detained under section 12A of the Act
(provision not as yet ever used allowing for detention of people with
personality disorders);
 whether patients should be transferred between services;
 whether the refusal by the Chief Psychiatrist to grant leave of up to 24
hours to Security Patients should be overturned (the Victorian
Government as part of the review process largely driven by a highly
publicised individual case41 removed the right of Security Patients to
appeal against refusals of leave beyond 24 hours);
 whether the conditions of orders – limited to their duration, who
provides treatment, or a residence condition in the case of a small
number of CTOs – are appropriate; and
 Whether an involuntary patient who has been absent without leave for
12 months should be automatically discharged42.
Other Australian tribunals have significantly broader jurisdictions –
including in relation to ECT and the type of treatment being received,
discussed above. In New South Wales and the Northern Territory the
tribunals in fact have some jurisdiction in relation to voluntary inpatients –
they are required to review those who are long term patients – in NSW after
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12 months43 and the Northern Territory after six44. This clearly does not
address the issue of an appropriate mechanism for complaints about refusal
to provide access to services – it is, however, a laudable protection against
the risk of long term voluntary patients becoming de facto involuntary. It
also has the potential to act as a quality assurance check for voluntary
patients – in one case in the Northern Territory a man who had an
intellectual disability but no mental illness had been a voluntary inpatient in
a mental health service for many years. As a result of pressure placed on
government following his review, he was ultimately admitted to an
appropriate service.45
The Western Australian Board has an interesting power to inquire into
complaints about breaches of involuntary patient rights46. Whilst it is clearly
limited to rights actually articulated in the legislation – and, in the case of
involuntary patients these are indeed limited – it might be an illuminating
foray into a broader complaints role for mental health tribunals. In
2000/2001 the Board received three complaints and two inquiries were
completed. It seems that in both cases the complaints were resolved by way
of correspondence rather than hearing – the complaints were put in writing
14
to the relevant services, the services responded in writing and it was
determined that the service responses were satisfactory47.
It has been of concern to disability advocates that processes which rely
solely on conciliation and do not offer access to tribunals with determinative
powers are inadequate48. Victoria’s Health Services Commissioner, for
example, is empowered to investigate and conciliate, but cannot make a
binding determination nor refer matters to a body which can49. If
complainants cannot insist that a decision be made, outcomes in their favour
will only occur if there is irrefutable evidence or services are prepared to
make concessions. It may be that investing mental health tribunals with such
powers would address those concerns – though if, as appears to have taken
place in the Western Australian jurisdiction the hearing process is not
actually invoked, such a model may be no more useful. A preferable model
both in terms of relative independence and a right to a hearing might be that
which applies in Victoria to complaints about breaches of health information
privacy which can be referred to the Victorian Civil and Administrative
Tribunal (a tribunal for which the Attorney-General rather than the Minister
for Health is responsible)50.
15
Does the Tribunal have a Role in Monitoring use of Restraint and
Seclusion?
No Australian tribunals have power to make orders about the use of restraint
or seclusion. However, some are given a monitoring role in relation to these
highly restrictive interventions. In Tasmania, the Mental Health Tribunal is
obliged to consider reports on restraint and seclusion, and issue guidelines
regulating their use if it sees fit.51 In Western Australia the Review Board
must be notified of their use and includes data in its Annual Report52. In
Victoria the Board has no involvement at all with use of restraint and
seclusion. Services must report their use to the Office of the Chief
Psychiatrist53, and that Office issues clinical practice guidelines and program
management circulars. However, it has to date not produced any publicly
accessible data on use of restraint and seclusion - though it is understood
that the Office will produce an Annual Report for the first time within the
next year or two54. At the very least there should be a body mandated to
report publicly on the use of restraint and seclusion – and it is more
appropriate that a body with the relative independence of a tribunal have that
role than an office within the department responsible for provision of
services.
16
Is the Review by the Tribunal Timely?
Victoria’s Auditor-General has identified that, in 2001, almost 70% of
Victorian involuntary patients did not have their status reviewed by the
Board at all, either because they had been discharged before the hearing was
even scheduled, or where a hearing was scheduled but they were discharged
prior to it taking place55. Victoria has one of the longest periods during
which the initial automatic review can take place – eight weeks56. Western
Australia has the same period57, Queensland six weeks58, South Australia 45
days,59 Tasmania 28 days60 and the Northern Territory
seven days61. The Principles simply state that it must take place “as soon as
possible”.62 The situation in Victoria highlights the need to carefully
scrutinise the conclusions of the Rights Analysis Instrument report. That
report found best legislative practice in the Northern Territory and Victoria
in terms of “preliminary observation/treatment being limited to a short
period of time before being reviewed by a tribunal”.63 Whilst the large
number of people not getting hearings at all might have the “practical
advantage of avoiding unnecessary hearings”,64 it is of great concern that
17
people may in fact have spent less time as involuntary patients if reviewed at
an earlier stage in their treatment – and it is quite conceivable that a person
who spends, say three weeks in hospital and does not get reviewed at all
might have been discharged after 10 days if a review took place at that time.
Some commentators have expressed concern that relatively early review
might disadvantage some patients who are more acutely unwell at that
stage65. There is great danger in making any such assumptions about
capacity to participate, in a jurisdiction where a key matter for determination
is competence – and such an approach teeters dangerously on
predetermination of the very issues in question. In any event, the varying
levels of wellness of people at the point of hearing is a matter for flexible,
accommodating hearing processes – not a justification for denying a hearing
at all. The President of the Northern Territory Tribunal, where reviews take
place within 7 days, sees no significant reason to conclude that that is an
inappropriately short period, though indicated there is some discussion in
that jurisdiction about increasing the period to 10 days.66
It is not only the period for the initial review which is relevant to this issue,
but the interval between automatic periodic reviews as well. In this regard
also Victoria has comparatively long periods. In Victoria involuntary
18
inpatient status is indefinite, community treatment orders can be for up to 12
months and involuntary patients are reviewed automatically every 12
months67. This contrasts with the situation in the Northern Territory where
inpatient orders made by the tribunal no more than seven days after a person
is admitted can be for no longer than three months and must be reviewed
again during their currency68, and community treatment orders can only be
for six months with a review during that period69. Certainly in Victoria
people can appeal to the Board at any time70 – but this is a jurisdiction where
it is not sufficient protection to leave it to those subject to orders to initiate
reviews. The phenomenon of discharge shortly prior to a schedule review is
significant71 – and so is the question as to whether people currently
discharged shortly before a 12 months review, might, for example be
discharged closer to the six month point if that were when the review was
scheduled.
Clearly there would be workload and resource implications for a tribunal
such as Victoria’s Board if it began to review those many people who now
do not have that protection. It is crucial that any moves in this direction not
erode crucial rights protections. One obvious cost cutting initiative is to look
at the sorts of hearings that are conducted72. There can be no justification for
19
moving to a hearing process which is so administrative or “on the papers”
that patients do not have a right to be heard and other features of natural
justice are not present. However, creative thought needs to be given to
options such as greater use of single member tribunals, albeit with access to
multidisciplinary input which can be invaluable in this sort of context. Given
that these are legal review processes, a model whereby a legal member
constitutes the tribunal but has access to independent experts assisting, be
they psychiatrists, allied health professionals or people representing the
community perspective, may be worthy of consideration.
Is the Original Order Made by the Tribunal or Service Provider?
The assumption underlying mental health tribunals is that it is a necessary
check on the exercise of psychiatric decision making power for decisions to
be scrutinized in an independent legal forum bound by the principles of
natural justice. Whilst it is not required by the Principles, some jurisdictions
give effect to this by empowering only a tribunal, and not a service provider,
to make the order in the first place. In the Australian Capital Territory the
Tribunal makes both inpatient and community orders73, in New South Wales
both types of community orders are made either by a magistrate or the
20
Tribunal74, and in South Australia Community Treatment Orders and
Continuing Detention Orders are made by the Guardianship Board75.
An objection likely to be raised to such a situation is that people who need
treatment urgently will go without it pending a tribunal decision. Board
processes are clearly sufficiently flexible in the ACT for this to not be an
obstacle. Flexibility of hearing processes, with fundamental features of
procedural fairness still in place, should address any such concerns. It is
noteworthy that the Guardianship List of Victoria’s Civil and Administrative
Tribunal has to make all guardianship and administration orders76, and is
able to convene hearings as very short notice in relation to matters such as
applications to approve urgent medical treatment.
Such an approach, as well as ensuring due process, may have quite
significant therapeutic benefits. It seems that, in the civil commitment
context, people are more likely to comply with treatment if they feel they
have actively participated in the making of the order in that their views have
been heard and fully considered77. There is evidence that, the greater the
procedural fairness involved in the imposition of a treatment regime, the
greater the therapeutic benefit78. It seems reasonable to assume that there
21
might be greater engagement with treatment from the outset if orders are
made by a tribunal which properly observes procedural fairness79. It might
also be that there will be a less conflictual relationship with the service
provider if it is not the service provider but a relatively independent tribunal
which confers involuntary status from the outset.
Provision of Documents to Patient
The importance of rigorous procedural safeguards identified when a rights
discourse in mental health law first emerged has been confirmed by more
recent analyses from what might be described as a therapeutic jurisprudence
perspective80. In terms of access to material on the basis of which a tribunal
will make its decision, the Principles state that copies “shall be given to the
patient and the patient’s counsel” unless it would cause serious harm to the
patient or put the safety of others at risk81. Interestingly, the Principles do
not refer to an exemption from disclosure where material has been provided
in confidence, which is found for example in the Victorian Act82. In
Queensland, by way of contrast, the reasons for refusing to disclose
materials are limited to situations of risk of harm or to safety83.
22
The Principles also require that a decision not to disclose information should
be subject to judicial review84. In Victoria there is merits review to an
administrative tribunal, being the Victorian Civil and Administrative
Tribunal, but judicial review is limited to questions of law85. As is discussed
below, other Australian jurisdictions provide for merits review by courts as
of right. Queensland’s Mental Health Act 2000 recognises the serious
procedural fairness implications of denying access to any part of the
materials by providing that a person must have a lawyer appointed if
information is to be exempted from disclosure to the patient86.
A significant proportion of involuntary patients interviewed by the Victorian
Auditor General reported being unaware of their right to access information
considered by the Review Board. Of those aware of their right of access, a
common source of complaint was about difficulties actually getting access87.
This highlights starkly the tension between rights in legislative theory and
rights in practice. Particularly in the case of people whose disability may
impact on capacity to pursue rights themselves, a right to access materials
may only be as good as the commitment of service providers or those
connected with the tribunal itself to facilitate it. It may have something to do
with the strength of the legislative provision itself – the provision in the
23
Victorian Act, providing that a person is “entitled to inspect or otherwise
have access to” records88, can be contrasted with the comparable
requirement in the Northern Territory – that a person “must be given
access”89. What is more likely is that it is matters of practice rather than of
legislation which determine the realization of such a right. The Rights
Analysis Instrument Report commends the Northern Territory Tribunal
because it automatically gives access90. It would seem that there are
relatively straightforward means of ensuring that access occurs in practice in
a jurisdiction such as Victoria’s. Casemanagers could be required to
facilitate people’s access if they want it. This need not be an unduly onerous
process in terms of service resources if a system were implemented whereby
people could, for example, peruse files in the same room as, thought not
under direct and constant scrutiny of, officers at the service such as medical
records administrators. A practice on the part of tribunals of not only asking
patients at the commencement of the hearing if they have access, but also
adjourning to next sitting to facilitate it, would no doubt increase proactivity
of services in this regard. The need to adjourn would, it is hoped, be a short
term requirement only – justice delayed in this situation may indeed be
justice denied91.
24
Access to Representation
A person who has represented people at Victoria’s Board for five years has
to declare an interest in this aspect of procedural fairness. Debate may rage
about the extent to which legal representation of itself significantly increases
chances of discharge. The current President of the Victorian Board seems
sceptical92, though is of the view that “potentially there are many benefits
deriving to patients from legal representation”93. On the other hand, in
British Columbia the move to introduce representation at all hearings was
driven by a recognition that it did substantially increase discharge
likelihood94, and that effect has been acknowledged in other studies95. In a
jurisdiction such as British Columbia, with discharge rates of approximately
25%96, discharge as the primary objective of representation may not be such
an arid exercise as it could be in Victoria where it never exceeds seven
percent or so97. Undoubtedly, however, as well as discharge, representation
can increase the prospect of positive outcome from the hearing process at a
number of levels, whether in terms of some sort of variation to the person’s
situation (the scope for that in jurisdictions such as Victoria is relatively
limited given the limited jurisdiction of the Board as regards decisions about
treatment discussed above), the opportunity to have their position fully and
25
clearly articulated, or otherwise. It is a very common experience as an
advocate for clients to indicate having highly valued representation even
where there has been no change in their situation. It can reasonably be
assumed that, if representation increases the extent to which patients
experience the process as fair and participatory, it will have a therapeutic
impact and might increase level of engagement with treatment 98. The way in
which representation is provided is crucial, however, if it is to be beneficial
to the patient. Bruce Winnick has identified a significantly destructive
impact on patients if lawyers engage in what he describes as “sham”
representation where lawyers act paternalistically and perfunctorily99.
Within Australia there is great variation between jurisdictions as to levels of
representation. They range all the way from no representation in Tasmania
in 2000/2001100, to less than 10% in Victoria101 , and over 90% in the
Northern Territory.102 In the latter jurisdiction the relevant legislation
mandates the Tribunal to appoint a lawyer unless satisfied it is not necessary
and empowers it to order the state to cover the costs103. This contrasts with
provisions of the type in the Victorian Mental Health Act which merely
provides a person has a right to be represented but makes no provision for
the payment of representatives by the state104. In South Australia the health
26
department funds representation for certain sorts of appeals, and advocates
report that there is a significant amount of ill-ease that funding comes from
the department responsible for service provision105The Principles provide
that people should always have access to representation, funded by the state
if necessary. 106 Whilst increasing representation clearly has resource
implications both for state funded legal services and tribunals in terms of
increased length of hearings107, these are costs which can clearly be met in
other jurisdictions such as the Northern Territory and British Columbia.
Access to Record of Hearing Outcome
The Principles provide that “the decision arising out of the hearing and the
reasons for it shall be expressed in writing”108. In most Australian
jurisdictions the situation is similar to that in Victoria where a party can
request a written statement of reasons109. By way of contrast, in the Northern
Territory the Tribunal must provide a taperecorded copy of the hearing at no
cost unless it would cause serious harm to do so110. In New South Wales111
and Western Australia112 the hearings must be taped, and in the case of the
former parties can request a copy113, in addition to the right to request a
statement of reasons in both places114. Provision of a taperecording may in
27
some respects be preferable to a Statement of Reasons. The omission of
reference to particular aspects of what was said at a hearing can be a source
of frustration to clients. Having requested a number of statements of reasons,
the author has noted a tendency for tribunal members not to include some
significant items of evidence, argument or their own comment in statements.
Whilst the jurisdictions of tribunals may be limited, and people seek to raise
matters not clearly within jurisdiction, tribunals are in a position to
acknowledge those matters and sometimes comment to that effect. It can be
most disillusioning for such comment, and indeed comment to the effect that
discharge or some other change in situation might only be a mater of time, to
be made at hearing and not appear in a statement. It also appears at times
that tribunal members feel they should not include reference to key evidence
which is contrary to their ultimate decision. In this sense they often omit the
“grey” in a person’s situation. This also can have the discouraging
appearance that those matters were not adverted to by the tribunal, and give
little hope for progress towards voluntary treatment. It has been found that
ceremonial or public recognition of a person’s achievements can have a
significant therapeutic benefit115. Similarly, tribunals are a in a powerful
position to, and often do, provide important recognition of what people with
mental illness achieve against substantial odds. It is therapeutically
28
important for patients to have confidence that what they are putting to the
tribunal will be fully and seriously considered116. It is crucial that the record
of hearing a person receives capitalises on the potential for the process to be
beneficial by making reference to these matters.
Jurisdictions vary as to the time limit on making a request for a statement of
reasons. In South Australia there is a three month period following the
hearing during which a statement can be requested117. In Western Australia it
is 14 days118, and in Victoria 28 days119. In Victoria, the Board has in some
cases refused to grant requests made outside the 28 day period, even where it
is only a matter of no more than a week outside that time 120. Particularly in
the case of people whose disability may impair capacity to make a request, it
is important that the time limit not be unduly restrictive – and a period of
three months, with some discretion to extend that period, seems appropriate.
Access to Second Psychiatric Opinion
It is usually immensely difficult for patients to challenge the clinical
decisions upon which their involuntary status rests without the support of an
independent expert. The inaccessibility of such second opinions, due to cost
29
and difficulty finding psychiatrists independent of treating services is of
concern to many people of the subject to involuntary treatment represented
by Victoria’s Mental Health Legal Centre. Patients look to the psychiatric
members of tribunals for second opinions121. Whilst to a limited degree such
members may be able to perform that function, they are unlikely to be able
to conduct a sufficiently rigorous assessment in the context of a tribunal
hearing. The Queensland Tribunal must, if a person has been subject to
involuntary status for more than six months, consider “whether an
examination and report should be obtained from a psychiatrist other than the
psychiatrist responsible for the patient’s treatment”122. This could be
regarded as a recognition that an adequate second opinion can not be
provided by the psychiatrist on the tribunal. It is certainly a legislative
recognition that serious consideration should be given to obtaining a second
opinion when involuntary treatment is as lengthy as six months. Whilst the
Victorian Board has an inherent power to order such opinions and has been
known to do so123, its exercise is extremely unusual. Of course, a provision
such as that in Queensland may get patients little closer to an inherent power
to seek an opinion if a culture quickly develops whereby second opinions are
considered necessary in exceptional cases only. It would also be of limited
utility in securing truly independent assessments in appropriate cases if a
30
situation similar to that in Victoria’s public mental health services developed
whereby people are offered second opinions from psychiatrists employed by
the treating service. The resource implications of more extensive access to
independent second opinions are clear – but so is their value and importance
in ensuring people have a genuine opportunity to challenge involuntary
status. It is hoped that serious thought can be given to creative ways of
facilitating access to such assessments for a significantly greater number of
people than are currently able to access them124.
Patient Attendance at Hearings
Victoria’s Auditor-General has identified a need for research into why such
a large proportion of patients do not attend their hearings125. In 2001 in
Victoria patients were not present at 38% of hearings126. In Tasmania in
2000/2001 there was no attendance in 22% of cases127, whilst in the
Northern Territory it is estimated that patients attend in over 90% of
cases128. Whilst it is indeed necessary to conduct reliable research to
ascertain why people do not attend and make no assumptions (the Victorian
Board has indicated it will add a question going to this issue to the notices it
requests that people return indicating if they plan to attend,129 and the Mental
31
Health Legal Centre has just secured funding from the Reichstein
Foundation to conduct a two year research project gaining an understanding
of Involuntary Patient experience of the Board Process and how it might be
improved130), this question may well bring together a number of the issues
outlined above.
Access to Judicial Review as of Right
The Principles provide that a person should have the right to appeal to a
court against a decision to detain them131. From a traditional rights
perspective a judicial decision is probably preferable to one of a tribunal.
There are, however, important considerations of accessibility which must be
taken into account. Whilst courts may apply a more rigorous legal analysis
to cases (this was certainly the situation in a matter in Victoria in 2000 in
which the Board and the Victorian Civil and Administrative both held that a
person whose CTO expired without being extended was still an involuntary
patient, but the Supreme Court took a more rigorous legal approach and
overturned their decisions132), people may need support to deal with the
probable heightened formality in a court. Ultimately, the approach taken by
the decision maker, rather than whether it is judicial or administrative, is
32
probably the key. Bruce Winnick has observed the court jurisdiction in the
United States degenerate into a farcical, perfunctory process where the
average hearing length is four to nine minutes and judges and lawyers
become complicit in the commitment process133.
There are two key issues related to the adequacy of appeals mechanisms
from a rights perspective. One is that it be access to an appeal as of right, as
opposed to a situation where leave to appeal must be granted. The second is
that the appeal be in the form of a de novo hearing, rather than one confined
to errors of law. In Victoria, whilst there is as of right access to merits
review at the Victorian Civil and Administrative Tribunal, appeals to the
Supreme Court are limited to questions of law134. In the ACT, by contrast,
the appeal is straight to the Court, as of right, and the court can stand in the
shoes of the tribunal135.
33
Conclusion – Features of a Model Australian Mental Health Review
Tribunal
With all the qualifications referred to at the outset, the optimally rights
recognizing features which can be drawn from mental health tribunals
around Australia are as follows:
 The tribunal should have to approve treatment plans for both
inpatients and people on community treatment orders, and patients
should be able to seek to have them varied.
 Electro-convulsive therapy against someone’s will should require the
approval of the tribunal.
 People who have been voluntary inpatients for six months should be
reviewed by the tribunal.
 Mental health tribunals or, preferably, tribunals established by
departments other than health departments and accordingly more
independent, should have jurisdiction to deal with complaints about
mental health services. People should have the right to refer
complaints to determinative hearing.
34
 Mental health tribunals should be required to receive reports on
restraint and seclusion and issue guidelines where appropriate.
 The tribunal should make the initial order, or, at the very least, the
initial review should take place within seven days of the order being
made.
 Involuntary status should be automatically reviewed every three
months in the case of inpatients, and six in the case of people subject
to involuntary treatment in the community.
 Access to the documents to be considered by the tribunal should be
automatically facilitated.
 Documents should only be exempted from disclosure if disclosure
will cause serious harm.
 All people appearing before the tribunal should have access to state
funded representation if they cannot afford to pay for a solicitor.
 People should be automatically provided with a taperecording of the
hearing, and have the right to request a statement of reasons.
Statements of reasons should contain a comprehensive record of what
is put by or on behalf of the patient, and include a true record of any
comments or recommendations made by the tribunal. People should
35
have three months after the hearing to request such reasons, with the
tribunal having discretion to extend that time.
 Greater access to second opinions should be facilitated as part of
tribunal process.
 There should be access as of right to de novo judicial review.
All of the above features, aside from a more general complaints
jurisdiction (though there is a comparable model for health record
complaints in Victoria) and extensive access to independent second
opinions, exist in Australian jurisdictions. It is hoped that governments
will think seriously and creatively about optimal recognition of rights,
and the desirability of nationally consistent rights protection. This will
serve not only the interests of justice, but the increasingly recognised
objectives of a “therapeutic jurisprudence” framework.
36
1
Based on a presentation by the author at Detention, Decisions and Dilemmas. Reviewing Involuntary
Detention and Treatment into the 21st Century” A National conference hosted by the Mental Health Review
Board of Victoria to Mark its 15th Anniversary. 17 –18 October 2002. Melbourne.
2
The author has worked as a solicitor for five years at Victoria’s Mental Health Legal Centre Inc.and is
currently Co-ordinator. The views in this article are personal views of the author and do not necessarily
represent the views of the Centre. However, the author acknowledges the invaluable contribution the staff,
committee, volunteers, clients and other stakeholders of the Centre have made to her understanding of the
way mental illness can compound legal problems – and of potential solutions. In particular she thanks
Vivienne Topp for her helpful comments on this article.
3
The Mental Health Legal Centre Inc. had a client in 2002 who had committed a relatively minor offence
and been treated in the forensic system in Queensland. Media exposure of that person’s photo led to them
being recognised in Victoria by a member of the public and becoming extremely distressed, with negative
impact for their mental health.
4
See, for example, Letter to Editor from resident of country Victoria “Border row hurts the mentally ill”
Age, Melbourne, 22 July 2002.
5
The Principles were adopted by General Assembly Resolution on November 18 1991, 46 th Session, Item
no. 98b. Principle 7(2) states “Where treatment takes place in a mental health facility, a patient shall have
the right, whenever possible, to be treated near his or her home or the home of his or her relatives or friends
. . . “.
6
S Delaney “Autonomy Denied: International Human Rights and the Mental Health Act 1986 (Vic.)”
(1992) 18 Melbourne University Law Review 565.
7
National Rights Analysis Instrument Assessment Panel , Application of Rights Analysis Instrument to
Australian Mental Health Legislation – Report to Australian Health Minister’s Advisory Group
Commonwealth of Australia 2000.
8
N Rees “Does the Victorian Mental Health Act 1986 comply with the United nations Principles for the
Protection of Persons with Mental Illness and Improvement of Mental Health Care?” (2003) Psychiatry,
Psychology and Law (forthcoming).
9
National Rights Analysis Instrument Assessment Panel , Application of Rights Analysis Instrument to
Australian Mental Health Legislation – Report to Australian Health Minister’s Advisory Group,
Commonwealth of Australia 2000.
10
T Carney “Mental health law in postmodern society: Time for new paradigms?” (2003) Psychiatry,
Psychology and Law (forthcoming).
11
S Zifcak “The United Nations Principles for the Protection of People with Mental Illness: Applications
and Limitations” (1996) Psychiatry, Psychology and Law 1.
12
Detention, Decisions and Dilemmas. Reviewing Involuntary Detention and Treatment into the 21 st
Century” A National conference hosted by the Mental Health Review Board of Victoria to Mark its 15 th
Anniversary. 17 –18 October 2002. Melbourne.
13
United Nations Principles for the Protection of Persons with Mental Illness and for the Improvement of
Mental Health Care. Principle 11(16).
14
Guardianship and Administration Act 1995 (Tas.).
15
Mental Health Act 1993 (SA) s. 19.
16
Mental Health and Related Services Act 1998 (NT) ss. 49 and 123.
17
Mental Health Act 1996 (Tas.) ss.43 and 65.
18
Mental Health Act 1990 (NSW) ss. 48 and 131.
19
Mental Health Act 1986 (WA) ss. l68 and 145.
20
Mental Health Review Tribunal of New South Wales. Procedural Note 9/2000 – Community Orders.
21
United Nations Principles for the Protection of Persons with Mental Illness and for the Improvement of
Mental Health Care. Principle 9(2).
22
Mental Health Act 1986 (Vic), s. 6A(j).
37
23
Auditor General Victoria Mental Health Services for People in Crisis, October 2002, Government Printer
for the State of Victoria, p.7.
24
See for example S Zifcak “The United Nations Principles for the Protection of People with Mental
Illness: Applications and Limitations” (1996) Psychiatry, Psychology and Law 1.
25
Mental Health (Treatment and Care) Act 1994 (ACT) s.31.
26
This has been the strong view indicated in discussions with representatives of the Mental Health Legal
Centre , for example, by the former Chief Psychiatrist of Victoria Associate Professor Norman James.
27
These are examples of the sorts of matters which must be decided upon for the purpose of considering
whether the criteria for involuntary treatment under sections 8 and 14 of the Mental Health Act 1986 (Vic)
are met.
28
National Rights Analysis Instrument Assessment Panel , Application of Rights Analysis Instrument to
Australian Mental Health Legislation – Report to Australian Health Minister’s Advisory Group,
Commonwealth of Australia 2000, 4.
29
See for example K De Brito “So why are we still using electric shock therapy?” Marie-Claire magazine,
July 2002.
30
Mental Health Legal Centre Inc. “A position paper on the law and electro-convulsive therapy in
Victoria”. March 2000.
31
Section 73(3) of the Mental Health Act 1986 (Vic.) provides that if someone is incapable of giving
informed consent ECT may be performed if:
(i)
the electro-convulsive therapy has clinical merit and is appropriate;
(ii)
having regard to any benefits, discomforts or risks the electro-convulsive
therapy should be performed;
(iii)
any beneficial alternative treatments have been considered;
(iv)
unless the electro-convulsive therapy is performed, the patient is likely to suffer
a significant deterioration in his or her physical or mental condition; and
(v)
all reasonable efforts have been made to notify the patient's guardian or primary
carer of the proposed performance of the electro-convulsive therapy.
32
Mental Health Legal Centre Inc. “A position paper on the law and electro-convulsive therapy in
Victoria”. March 2000.
33
I Freckelton, and B. Wilson “Electroconvulsive therapy: Law, history and practice” (2001) 8 Journal of
Law and Medicine 389.
34
Mental Health (Amendment) Act 1995 (Vic.).
35
Mental Health Act 1986 (Vic.) s.106AA.
36
Conversation with Dr Ruth Vine, Acting Director, Mental Health Branch and former Deputy Chief
Psychiatrist, November 2002.
37
S Zifcak “The United Nations Principles for the Protection of People with Mental Illness: Applications
and Limitations” (1996) Psychiatry, Psychology and Law 1, 6.
38
N Rees “Does the Victorian Mental Health Act 1986 comply with the United nations Principles for the
Protection of Persons with Mental Illness and Improvement of Mental Health Care?” (2003) Psychiatry,
Psychology and Law (forthcoming).
39
United Nations Principles for the Protection of Persons with Mental Illness and for the Improvement of
Mental Health Care Principle 1.
40
Mental Health Act 1986 (Vic), s. 6A(a)
41
The highly publicised absconding of a Security Patient in Victoria, together with a small number of lower
profile security incidents at Thomas Embling Hospital led to diminution of leave rights of both Security
and Forensic Patients following a Review Chaired by Supreme Court Judge The Honourable Frank
Vincent, the recommendations of which were implemented in the Forensic Health Legislation
(Amendment) Act 2001 (Vic.) and came into effect in 2002. For a period of time when media focus on the
issue was at its height, the leave of an entire class of patients (of different status form the person who had
absconded) was indiscriminately suspended.
42
Mental Health Review Board of Victoria Annual Report 2001/2002.
43
Mental Health Act 1990 (NSW) s. 63.
44
Mental Health and Related Services Act 1998 (NT) s. 122.
45
NT Mental Health Review Tribunal. In the matter of A 25 August 2000, and Discussion with President of
Tribunal Rosemary Decker November 2002.
38
46
Mental Health Act 1986 (WA) section 146.
Mental Health Review Board of Western Australia Annual Report 2001.
48
J Lesser and S Tait Disability Law Reform Presentation at the Guardianship and Administration
National Conference, Melbourne. October 2001.
49
Health Services (Conciliation and Review) Act 1987 (Vic.).
50
Health Records Act 2001 (Vic.) Division 6.
51
Mental Health Act 1996 (Tas.) s. 51(d).
52
Mental Health Act 1986 (WA) s. 124.
53
Section 81(3), section 82(5).
54
For a number of years the office of the Chief Psychiatrist has been indicating in discussions with
representatives of the Mental Health Legal Centre that annual reporting will soon be implemented.
55
Auditor General Victoria Mental Health Services for People in Crisis, October 2002, Government Printer
for the State of Victoria, p.8.
56
Mental Health Act 1986 (Vic), s. 30.
57
Mental Health Act 1986 (WA) s. 138.
58
Mental Health Act 2000 (Qld) s. 187.
59
Mental Health Act 1993 (SA) s.12.
60
Mental Health Act 1996 (Tas.) s. 52.
61
Mental Health and Related Services Act 1998 (NT) s. 123.
62
United Nations Principles for the Protection of Persons with Mental Illness and for the Improvement of
Mental Health Care. Principle 17(2).
63
Paragraph 41.
64
J Gardner “Mental Illness – Freedom and Treatment” (2000) Law in Context 120, 133.
65
J Gardner “Mental Illness – Freedom and Treatment” (2000) Law in Context 120.
66
Discussion with President of Tribunal Rosemary Decker November 2002.
67
Mental Health Act 1986 (Vic), ss. 30.
68
Mental Health and Related Services Act 1998 (NT) s. 123(5).
69
Ibid.
70
It has bee argued that the capacity for people to appeal at any time somehow ameliorates the fact that
many people will not have an automatic review at all – see for example Letter to the Editor from Beth
Wilson, former President of the Victorian Mental Health Review Board “Mental health reviews explained”
Herald Sun August 21 1996; J Gardner “Mental Illness – Freedom and Treatment” (2000) Law in Context
120, 132 (Julian Gardner is also a former President of the Victorian Board).
71
In Victoria, for example, in 2001/2002 approximately 29% of patients for whom a hearing was listed
were discharged between the matter being listed and the hearing date, and that represented an increase from
the previous year. Mental Health Review Board of Victoria Annual Report 2001/2002.
72
N Rees “Does the Victorian Mental Health Act 1986 comply with the United nations Principles for the
Protection of Persons with Mental Illness and Improvement of Mental Health Care?” (2003) Psychiatry,
Psychology and Law (forthcoming).
73
Mental Health (Treatment and Care) Act 1994 (ACT) s. 26.
74
Mental Health Act 1990 (NSW) ss. 118 and 124.
75
Mental Health Act 1993 (SA).
76
Guardianship and Administration Act 1986 (Vic.).
77
BJ Winnick “Therapeutic Jurisprudence and the Civil Commitment Hearing” (1999) 10 Journal of
Contemporary Legal Issues 37.
78
Ibid.
79
Conversation with Professor David Wexler 20 November 2002.
80
Ibid.
81
Principle 18(4).
82
See for example Mental Health Act 1986 (Vic.), s. 26(8)©
83
Mental Health Act 2000 (Qld.), s. 458(2).
84
Principle 18(4).
85
See Mental Health Act 1986 (Vic), ss. 120, Victorian Civil and Administrative Tribunal Act 1998 (Vic.)
s. 148.
86
Mental Health Act 2000 (Qld.), s. 458(4).
47
39
87
Auditor General Victoria Mental Health Services for People in Crisis, October 2002, Government Printer
for the State of Victoria, p. 118.
88
Mental Health Act 1986 (Vic.) s. 26.
89
Mental Health and Related Services Act 2000 (NT), s. 132.
90
National Rights Analysis Instrument Assessment Panel , Application of Rights Analysis Instrument to
Australian Mental Health Legislation – Report to Australian health Minister’s Advisory Group 2000, p.12.
91
D Mithen “Consumer Response to Professor Neil Rees’ address: International Human Rights Obligations
and Mental Health Review Tribunals”. Paper presented at “Detention, Decisions and Dilemmas. Reviewing
Involuntary Detention and Treatment into the 21st Century” A National conference hosted by the Mental
Health Review Board of Victoria to Mark its 15th Anniversary. 17 –18 October 2002. Melbourne.
92
The President of the Board has on a number of occasions expressed the view to representatives of the
Mental Health Legal Centre Inc. that the higher proportion of discharges where people have representation
is likely to be explicable in terms of those people who are chosen to be represented being more well.
93
Auditor General Victoria Mental Health Services for People in Crisis, October 2002, Government Printer
for the State of Victoria, p. 120.
94
Conversation with Professor James Ogloff, Director of Psychological Services at the Victorian Institute
of Forensic Mental Health, Foundation Professor of Clinical Forensic Psychology at Monash University
and former Member British Columbia Review Panel and Chair Mental Health Review Panel November
2002.
95
I. Freckelton “Involuntary Detention Decision Making”, in K. Diesfeld and I Freckelton (ed.)
Involuntary Detention and Therapeutic Jurisprudence: International Perspectives, Ashgate, Dartmouth
2002 (forthcoming).
96
Conversation with Professor James Ogloff, Director of Psychological Services at the Victorian Institute
of Forensic Mental Health, Foundation Professor of Clinical Forensic Psychology at Monash University
and former Member British Columbia Review Panel and Chair Mental Health Review Panel November
2002.
97
In 2001/2002 the overall discharge rate was 5.5%. Mental Health Review Board of Victoria Annual
Report 2001/2002.
98
BJ Winnick “Therapeutic Jurisprudence and the Civil Commitment Hearing” (1999) 10 Journal of
Contemporary Legal Issues 37.
99
BJ Winnick “A Therapeutic Jurisprudence Model for Civil Commitment”, in K. Diesfeld and I
Freckelton (ed.) Involuntary Detention and Therapeutic Jurisprudence: International Perspectives,
Ashgate, Dartmouth 2002 (forthcoming).
100
Mental Health Tribunal Tasmania Annual Report 2000 – 2001.
101
In 2001/2002 in Victoria there was legal representation in 9.6% of cases. Mental Health Review Board
of Victoria Annual Report 2001/2002.
102
Conversation with President of Northern Territory Mental Health Review Tribunal Rosemary Decker
November 2002.
103
Mental Health and Related Services Act 1998 (NT) s. 131.
104
Mental Health Act 1986 (Vic.) s. 26(3).
105
Comments of Owen Ames, mental health lawyer Legal Aid South Australia at National Mental Health
Advocacy Network meeting December 2001.
106
United Nations Principles for the Protection of Persons with Mental Illness and for the Improvement of
Mental Health Care. Principle 18(1).
107
The President of the Victorian Board has often raised concern about this issue. Auditor General Victoria
Mental Health Services for People in Crisis, October 2002, Government Printer for the State of Victoria, p.
120.
108
United Nations Principles for the Protection of Persons with Mental Illness and for the Improvement of
Mental Health Care. Principle 18(8).
109
Mental Health Act 1986 (Vic.) s. 27.
110
Mental Health and Related Services Act 1998 (NT) s. 136.
111
Mental Health Act 1990 (NSW) s. 279.
112
Mental Health Act 1986 (WA) schedule 2.
113
Mental Health Act 1990 (NSW) s. 279.
114
Mental Health Act 1990 (NSW) s. 280; Mental Health Act 1986 (WA) schedule 2.
40
DB Wexler “Robes and Rehabilitation: How Judges Can Help Offenders “Make Good”” (2001) Court
Review, 18. BJ Winnick “A Therapeutic Jurisprudence Model for Civil Commitment”, in K. Diesfeld and
I Freckelton (ed.) Involuntary Detention and Therapeutic Jurisprudence: International Perspectives,
Ashgate, Dartmouth 2002 (forthcoming).
116
BJ Winnick “A Therapeutic Jurisprudence Model for Civil Commitment”, in K. Diesfeld and I
Freckelton (ed.) Involuntary Detention and Therapeutic Jurisprudence: International Perspectives,
Ashgate, Dartmouth 2002 (forthcoming).
117
Mental Health Act 1993 (SA) s.14(13).
118
Mental Health Act 1986 (WA) schedule 2.
119
Mental Health Act 1986 (Vic.) s. 27.
120
Some such requests made by the Mental Health Legal Centre Inc on behalf of clients have been refused,
and others have been accepted.
121
D Mithen “Consumer Response to Professor Neil Rees’ address: International Human Rights
Obligations and Mental Health Review Tribunals”. Paper presented at “Detention, Decisions and
Dilemmas. Reviewing Involuntary Detention and Treatment into the 21 st Century” A National conference
hosted by the Mental Health Review Board of Victoria to Mark its 15 th Anniversary. 17 –18 October 2002.
Melbourne.
122
Mental Health Act 2000 (Qld.), s.190.
123
See, for example, In the Review of HL (1997) 2 MHRBD (Vic.) 485.
124
Feasible approaches may include the sorts of solutions to inaccessibility of legal services being trailed in
Victoria’s legal community. Law firms wishing to do government work must provide a quota of approved
pro bono assistance. The author makes no assumption about the extent to which psychiatrists do or do not
already, like very many lawyers, conduct a significant amount of pro bono work. Like lawyers, though, it
may be that many would have the capacity to do so, and schemes where opinions are provided at least in a
significantly greater number of cases than now occurs at little or no cost should be explored.
125
Auditor General Victoria Mental Health Services for People in Crisis, October 2002, Government
Printer for the State of Victoria, p.118.
126
Auditor General Victoria Mental Health Services for People in Crisis, October 2002, Government
Printer for the State of Victoria, p.112.
127
Mental Health Tribunal Tasmania Annual Report 2000-2001.
128
Conversation with President of Northern Territory Mental Health Review Tribunal Rosemary Decker
December 2002.
129
Discussions with John Lesser, President of Victorian Mental Health Review Board, November 2002.
130
The Project will be conducted in conjunction with Professor Terry Carney and Dr David Tait,
commencing in early 2003.
131
United Nations Principles for the Protection of Persons with Mental Illness and for the Improvement of
Mental Health Care. Principle 17(7).
132
Richard Wilson v Mental Health Review Board and Others (2001) 17 VAR 42.
133
BJ Winnick “Therapeutic Jurisprudence and the Civil Commitment Hearing” (1999) 10 Journal of
Contemporary Legal Issues 37.
134
Victorian Civil and Administrative Tribunal Act 1998 (Vic.) s.148.
135
Mental Health (Treatment and Care) Act 1994 (ACT) s. 141.
115
41