Frequently asked questions (doctors & treating teams)
In this section, we answer questions which doctors and treating teams frequently ask about the hearing process.
The patient's psychiatrist is not available on the hearing date. Can the hearing be re-listed?
No. Review hearings have very strict statutory time frames. The Registry cannot list a matter outside this limited time frame. If the patient’s psychiatrist cannot attend the hearing in person, then s/he should prepare a comprehensive report using the Tribunal’s report template. The patient’s psychiatrist should also ensure that another psychiatrist attends the hearing to speak to the report and answer questions from the patient or the Tribunal members.
When do I prepare the medical report for the Tribunal and who gets a copy?
The treating psychiatrist should prepare a medical report (preferably on the Tribunal’s approved form) addressing the section 25 criteria and the s394(1) mandatory considerations and provide a copy of the report to both the Patient and the Mental Health Tribunal at least 3 business days before the hearing date.
Failure to do so may require the Tribunal to stand-down the hearing to require the psychiatrist to review the report with the patient during the scheduled hearing time. This will increase the length of the hearing and cause inconvenience to patients and your colleagues.
For guidance notes on completing the report template click here.
What else do I need to do?
Please update the patient’s Treatment Support and Discharge Plan (TSDP) to ensure it complies with the Chief Psychiatrist’s Guidelines for preparation, review and revision of treatment, support and discharge plans and provide a copy of the TSDP to both the patient and the Mental Health Tribunal at least 3 days before the hearing date.
The patient’s psychiatrist should attend the hearing to answer questions about the report from the Tribunal Members, the patient, advocate, lawyer, or other interested persons. The Tribunal generally requires the presence of the treating psychiatrist at the hearing. The patient’s responsible practitioner or case manager should also attend.
What if the medical report or other material has information which the patient should not see?
The Tribunal is bound by the rules of natural justice (often referred to as procedural fairness). The hearing process must be fair. Generally, this means that material relied upon by the Tribunal in making its decision should be available to the patient and the patient should have the opportunity to comment on it. It may be unfair for the Tribunal to rely on a medical report or other material that the patient has not seen.
However, the Mental Health Act recognises that in some limited situations, the patient should not have access to some information held by the health service. These limited situations include:
- if a treating psychiatrist reasonably believes that the disclosure of information in the document to the person:
- poses a significant risk to the health or safety of the person or to the safety of another person; or
- poses a significant risk of serious harm to the person or to another person; or
- if disclosure of the information in the document to the person would reveal:
- personal information about an individual who is not the person; or
- information of a confidential nature that was obtained in confidence.
In such circumstances, the patient’s treating psychiatrist may make the information restricted information within the meaning of the Act by preparing a form 12B and giving a copy of it to the patient.
The effect of the form 12B is that the information becomes restricted information and section 461 of the Act is activated. Section 461 imposes the following restrictions on the use of restricted information at a hearing:
- oral evidence about restricted information cannot be given in the presence of the person who is not entitled to have access to the document containing the restricted information; and
- a witness cannot be examined or cross-examined about restricted information in the presence of that person; and
- an oral submission about restricted information cannot be made in the presence of that person.
Furthermore, the Tribunal must request the person to leave the hearing while the evidence is given, the examination or cross-examination is conducted or the submission is made.
If the person refuses to comply with the Tribunal’s request, the Tribunal must make an order excluding the person from the hearing while the evidence is given, the examination or cross-examination is conducted or the submission is made.
However, bear in mind that when a psychiatrist makes a 12B order, this can be challenged by the patient through an application under section 434.
Then, the Tribunal must conduct a hearing on whether the 12B should remain in place. It will usually do this immediately before the review hearing for the involuntary treatment order.
What if a family member or other person wants to give the Tribunal information which the patient should not see?
Again, the Tribunal is bound by the rules of natural justice (often referred to as procedural fairness). The hearing process must be fair. Generally, this means that material relied upon by the Tribunal in making its decision should be available to the patient and the patient should have the opportunity to comment on it. It may be unfair for the Tribunal to rely on a medical report or other material that the patient has not seen.
However, the application of section 248 of the Act seems to be limited to ‘any relevant document relating to the person that is in the possession or control of the [mental health service]’. This means that for the form 12B process to apply, the health service must have the document in its possession. If it is, then the form 12B process described above applies.
If the document is not in the possession of the health service, it seems that section 248 does not apply and cannot activate the provisions of section 461 of the Act (unless the document is then given to the health service).
In the absence of any other specific provision in the Act to deal with this, the issue would be determined by the Tribunal as a question of procedural fairness. This is a matter for the Tribunal to consider in all of the facts and circumstances of the case and would be considered at the hearing.
In the meanwhile, the information is held by the Registry and will not be accessed by the Tribunal Members or released to the patient.
Page reviewed 24 November 2020