Chapter 2: Periodic review hearings (s 387)

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2.1 Relevant legislation

Mental Health Act 2014 (WA) (the Act) s 387, 388, 389, 395.

2.2 Key definitions

Adult means a person who has reached 18 years of age.

Carer means a carer under the Carer’s Recognition Act 2004 s 5 (s4 and 280(1)).  A person is a carer for the purposes of the Carer’s Recognition Act if he or she is an individual who provides ongoing care or assistance to a person who has a chronic illness, including a mental illness as defined in the Mental Health Act 2014 section 4 (or as otherwise specified in s5(1) of the Carer’s Recognition Act).  A person is not a carer under s 5(2) of the Carer’s Recognition Act if they provide services under a contract or as community work.  A person is not a carer for the purposes of the Carer’s Recognition Act merely because they are a spouse, parent, guardian, or providing care under an arrangement with the CEO of the Department of Communities.

Child means a person who is under 18 years of age.

Close family member means any of these people, whether the relationship is traced through consanguinity, marriage, de facto relationship, written law or natural relationship:  a spouse or de facto partner; a child; a step child; a parent; a step parent; a foster parent; a sibling; a grandparent; an aunt or uncle; a niece or nephew; a cousin.  If the person is of Aboriginal or Torres Strait Islander descent — any person regarded under the customary law, tradition or kinship of that person’s community as the equivalent of one of these persons (s4 and 281(1)).

Community treatment order means an order in force under the Act under which a person can be provided with treatment in the community without informed consent being given to the provision of the treatment.

Inpatient treatment order means an order in force under the Act under which a person can be admitted by a hospital, and detained there, to enable the person to be provided with treatment without informed consent being given to the provision of the treatment.

Involuntary treatment order means an inpatient treatment order or a community treatment order.

Involuntary patient: is a person who is under an involuntary treatment order.

Last review, of an involuntary treatment order, means —

  • the last review of the order under section 386(2) or subsection 387(2); or
  • if the order has not been reviewed under either of those provisions because it was made after another involuntary treatment order was last reviewed under one or other of those provisions — the last review of that other order.

last review day, for an involuntary treatment order, means the day on which the decision on the last review of the order is made.

Periodic review period means

  • for an inpatient treatment order or for a community treatment order in respect of a patient who, on the last review day, has been an involuntary community patient continuously for not more than 12 months —
  • if, on the last review day, the involuntary patient is an adult — the period of 3 months from that day; or
  • if, on the last review day, the involuntary patient is a child — the period of 28 days from that day; or
  • for a community treatment order in respect of a patient who, on the last review day, has been an involuntary community patient continuously for more than 12 months — the period of 6 months from that day.

Personal support person means an enduring guardian or guardian; a child’s parent or guardian; a nominated person; a carer or a close family member; (s4 and 7(2)(b)(i), (ii), (iii), (iv) or (v)).

Prescribed number of days, before the end of a periodic review period, means —

  • if, when the involuntary treatment order that is the subject of the proceeding was made, the involuntary patient is an adult — 21 days before the day on which that period ends; or
  • if, when the involuntary treatment order that is the subject of the proceeding was made, the involuntary patient was a child — 7 days before the day on which that period ends.

Treatment means the provision of a psychiatric, medical, psychological or psychosocial intervention intended (whether alone or in combination with one or more other therapeutic interventions) to alleviate or prevent the deterioration of a mental illness or a condition that is a consequence of a mental illness, and does not include bodily restraint, seclusion or sterilisation.

2.3 Statutory obligation to conduct review, exceptions and timing

2.3.1     Statutory obligation to review

Section 387(2) provides that unless subsection (4) applies, the Tribunal must, on or within the prescribed number of days before the day on which a periodic review period for an involuntary treatment order ends, review the order to decide whether or not the involuntary patient is still in need of the involuntary treatment order having regard to the criteria specified in section 25.

Working through this provision is unnecessarily complex because of the extensive use of definitions that refer to different time periods.  In practice, however, it is relatively simple.  In essence, section 387(2) creates a ‘periodic review window’, within which the periodic review must occur.  The review cannot take place before one date (the prescribed number of days) or after a second date (the periodic review period) from the day the order (or one of a series of orders) was last reviewed by the Tribunal at either an initial review hearing or a periodic review hearing.  Please see below 2.3.3 Timing, which includes a quick reference table at 2.3.3.3.  Click here for a ready reckoner to calculate the end of the periodic review window for adult patients.  Click here for a ready reckoner to calculate the end of the periodic review window for child patients.

2.3.2     Exceptions

There is one exception to this rule.  Section 387(4) provides that the Tribunal is not required to review the order if the involuntary patient has not, under section 388, been an involuntary patient continuously since the order was made.  Section 388 provides for this purpose that a person has been an involuntary patient continuously for a period if:

  • one, or a series of 2 or more, involuntary treatment orders were in force in respect of the person for the whole period; or
  • during the period, an involuntary treatment order ceased to be in force in respect of the person and another involuntary treatment order came into force in respect of the person on or within 7 days after the day of the cessation.
2.3.3     Timing

The Tribunal must conduct a periodic review of every involuntary treatment order on or within the prescribed number of days before the day on which a periodic review period for an involuntary treatment order ends (s 387(2)).

The prescribed number of days is different for patients who are aged 18 years or over on the hearing date (adult patients) and those who are under 18 years of age (child patients).

Similarly, the periodic review period is different for patients who are aged 18 years or over on the last review date (adult patients) and those who are under 18 years of age on the last review date (child patients).

Furthermore, the periodic review period is different for a patient who, on the last review day, has been an involuntary community patient continuously for not more than 12 months and a patient who has been an involuntary patient continuously for more than12 months.

2.3.3.1  Adult patient:
  • if, on the last review day, the involuntary patient is an adult, the ‘periodic review period’ is 3 months for:
    • an inpatient treatment order; or
    • a community treatment order in respect of a patient who, on the last review day, has been an involuntary community patient continuously for not more than 12 months: (s 387(1)).
  • if, on the last review day, the involuntary patient is an adult, the periodic review period is 6 months for a community treatment order in respect of a patient who, on the last review day, has been an involuntary community patient continuously for more than 12 months: (s 387(1)).
  • A month means calendar month (Interpretation Act 1984 s 62(1)).  A month beginning on any day other than the first day is calculated by adding the correct number of months and subtracting one day (Interpretation Act 1984 s 62(2) and (3)).  For example, a month beginning on 15 February ends on 14 March, and a period of three months beginning on 15 February ends on14 May.  A period of 6 months beginning on 30 or 31 August ends on 28 February (or 29 February in a leap year).
  • The ‘prescribed number of days’ for adults is 21 days before the day on which the periodic review period ends; (s 387(1)).  The day on which the order is made is not counted in calculating the 21 day period (Interpretation Act 1984 s 61(1)(c)).
  • The ‘periodic review window’, during which the periodic review must occur, is during the 21 days before the periodic review period ends.  The review cannot take place before 21 days or after 3 (or 6) months from the day the order (or one of a series of orders) was last reviewed by the Tribunal at either an initial review hearing or a periodic review hearing.
  • For example, where the last review date is 2 January 2020, the Tribunal must conduct the periodic review not before 11 March 2020 and not after 1 April 2020.  Where the time for conducting the review falls on an ‘excluded day’ (Saturday, Sunday, or WA public holiday), the review date is extended to the next day which is not an excluded day (Interpretation Act 1984 s 61(1)(e) and 61(2)).  Click here for a ready reckoner to calculate the end of the periodic review window for adult patients.
  • The periodic review date will not necessarily correspond with the expiration of the involuntary treatment order.
2.3.3.2  Child patient:
  • if, on the last review day, the involuntary patient is a child, the ‘periodic review period’ is 28 days for:
    • an inpatient treatment order; or
    • a community treatment order in respect of a patient who, on the last review day, has been an involuntary community patient continuously for not more than 12 months: (s 387(1)).
  • if, on the last review day, the involuntary patient is a child, the periodic review period is 6 months for a community treatment order in respect of a patient who, on the last review day, has been an involuntary community patient continuously for more than 12 months: (s 387(1)).
  • The ‘prescribed number of days’ for children is 7 days before the day on which the periodic review period ends; (s 387(1)).  The day on which the order is made is not counted in calculating the 7 day period (Interpretation Act 1984 s 61(1)(c)).
  • The ‘periodic review window’, during which the periodic review must occur, is during the 7 days before the periodic review period ends.  The review cannot take place before 7 days or after 28 days (or 6) months from the day the order (or one of a series of orders) was last reviewed by the Tribunal at either an initial review hearing or a periodic review hearing.
  • For example, where the last review date is 2 January 2020, the Tribunal must conduct the periodic review not before 23 January 2020 and not after 30 January 2020.  Where the time for conducting the review falls on an ‘excluded day’ (Saturday, Sunday, or WA public holiday), the review date is extended to the next day which is not an excluded day (Interpretation Act 1984 s 61(1)(e) and 61(2)).  Click here for a ready reckoner to calculate the end of the periodic review window for child patients.
  • The periodic review date will not necessarily correspond with the expiration of the involuntary treatment order.
2.3.3.3  Quick reference table 
  Prescribed number of days Last review day Periodic review period Periodic review window Example
Adult inpatient 21 the day the order (or one of a series of orders) was last reviewed by the Tribunal at either an initial review hearing or a periodic review hearing 3 months

(calculated by adding 3 to the month and subtracting 1 from the day: Interpretation Act s62(3))

 

On or within 21 days before the day the periodic review period ends. Last review day: 15 January 2020

Day periodic review period ends:  14 April 2020

Periodic review window:  24 March 2020 thru 14 April 2020

Adult community patient <12 months 21 the day the order (or one of a series of orders) was last reviewed by the Tribunal at either an initial review hearing or a periodic review hearing 3 months

(calculated by adding 3 to the month and subtracting 1 from the day: Interpretation Act s62(3))

 

On or within 21 days before the day the periodic review period ends. Last review day: 15 January 2020

Day periodic review period ends:  14 April 2020

Periodic review window:  24 March 2020 thru 14 April 2020

Adult community patient >12 months 21 the day the order (or one of a series of orders) was last reviewed by the Tribunal at either an initial review hearing or a periodic review hearing 6 months

(calculated by adding 6 to the month and subtracting 1 from the day:  Interpretation Act s62(3))

On or within 21 days before the day the periodic review period ends. Last review day: 15 January 2020

Day periodic review period ends:  14 July 2020

Periodic review window:  23 June 2020 – 14 July 2020

Child inpatient 7 the day the order (or one of a series of orders) was last reviewed by the Tribunal at either an initial review hearing or a periodic review hearing 28 days On or within 7 days before the day the periodic review period ends. Last review day: 15 January 2020

Day periodic review period ends:  12 February 2020

Periodic review window:  5 February thru 12 February 2020

Child community patient < 12 months 7 the day the order (or one of a series of orders) was last reviewed by the Tribunal at either an initial review hearing or a periodic review hearing 28 days On or within 7 days before the day the periodic review period ends. Last review day: 15 January 2020

Day periodic review period ends:  12 February 2020

Periodic review window:  5 February thru 12 February 2020

Child community patient >12 months 7 the day the order (or one of a series of orders) was last reviewed by the Tribunal at either an initial review hearing or a periodic review hearing 6 months

(calculated by adding 6 to the month and subtracting 1 from the day:  Interpretation Act s62(3))

On or within 7 days before the day the periodic review period ends. Last review day: 15 January 2020

Day periodic review period ends:  14 July 2020

Periodic review window:  23 June 2020 – 14 July 2020

 

2.4 Application requirements

The Registry automatically schedules a periodic review hearing for every involuntary treatment order issued.  No application is permitted.

Nevertheless, an application may be made under section 390(1)(a) (b) or (c).  See Tribunal Practice Manual Part 3 Chapter 3.

2.5 Nature of proceedings

Proceedings to review an involuntary treatment order under Part 21 Division 3 (Involuntary treatment orders: review) are review proceedings as defined in section 455 of the Act.  The reviewable decision is the decision to make the involuntary treatment order and the decision-maker is the psychiatrist who made the involuntary treatment order (s 455(1)).

A review proceeding is a hearing de novo and is not confined to material that was before the decision-maker but may involve the consideration of new material whether or not it existed when the reviewable decision was made (s 455(2)).

The purpose of a review proceeding is to produce the correct and preferable decision at the time of the Tribunal’s decision on the review proceeding (s 455(3)).

2.6 Parties

Section 393 provides that for proceedings under Part 21 Division 3 (Involuntary treatment orders: review) the parties to the proceeding are:

  • the involuntary patient; and
  • if the proceeding relates to an application made under section 390 and the applicant is not the involuntary patient — the applicant; and
  • any other person who, in the opinion of the Tribunal, has a sufficient interest in the matter.

For a person to be joined as a party to the proceedings pursuant to section 393(c) there must be a specific order of the Tribunal to this effect.

2.7 Statutory test

2.7.1     Section 387(2)

Section 386(2) provides that unless subsection (4) applies (see 2.3.2 above), on or within the prescribed number of days before the day on which a periodic review period for an involuntary treatment order ends (see 2.3.3 above), the Tribunal must review the order to decide whether or not the involuntary patient is still in need of the involuntary treatment order having regard to the criteria specified in section 25.

Accordingly, the decision the Tribunal is empowered to make is whether or not the involuntary patient is still in need of the involuntary treatment order having regard to the criteria specified in section 25.  This is the purpose of the periodic review hearing.

Whether the involuntary patient is still in need of the involuntary treatment order as at the date of the periodic review hearing is determined by the following criteria specified in section 25.  Different criteria apply depending on whether the involuntary treatment order being reviewed is an inpatient treatment order or a community treatment order.  The primary distinctions between the two are that an inpatient treatment order has higher risk requirements and requires that treatment in the community cannot reasonably be provided.

2.7.2     Section 25 criteria for an inpatient treatment order

Section 25(1) provides that a person is in need of an inpatient treatment order only if the Tribunal is satisfied of all of the following criteria:

  • that the person has a mental illness for which the person is in need of treatment;
  • that, because of the mental illness, there is —
    • a significant risk to the health or safety of the person or to the safety of another person; or
    • a significant risk of serious harm to the person or to another person;
  • that the person does not demonstrate the capacity required by section 18 to make a treatment decision about the provision of the treatment to himself or herself;
  • that treatment in the community cannot reasonably be provided to the person;
  • that the person cannot be adequately provided with treatment in a way that would involve less restriction on the person’s freedom of choice and movement than making an inpatient treatment order.
2.7.3     Section 25 criteria for a community treatment order

Section 25(2) provides that a person is in need of a community treatment order only if the Tribunal is satisfied of all of the following criteria:

  • that the person has a mental illness for which the person is in need of treatment;
  • that, because of the mental illness, there is —
    • a significant risk to the health or safety of the person or to the safety of another person; or
    • a significant risk of serious harm to the person or to another person; or
    • a significant risk of the person suffering serious physical or mental deterioration;
  • that the person does not demonstrate the capacity required by section 18 to make a treatment decision about the provision of the treatment to himself or herself;
  • that treatment in the community can reasonably be provided to the person;
  • that the person cannot be adequately provided with treatment in a way that would involve less restriction on the person’s freedom of choice and movement than making a community treatment order.
2.7.4     Other relevant considerations

Section 394 of the Act provides that in making a decision in respect of an involuntary patient on a review under Part 21 Division 3 (Involuntary treatment orders: review), the Tribunal must have regard to these things —

  • if the involuntary patient is a child and the Tribunal is not constituted with a child and adolescent psychiatrist — the views of a medical practitioner or mental health practitioner specified in subsection (2);
  • the involuntary patient’s psychiatric condition;
  • the involuntary patient’s medical and psychiatric history;
  • the involuntary patient’s treatment, support and discharge plan;
  • the involuntary patient’s wishes, to the extent that it is practicable to ascertain those wishes;
  • the views of any carer, close family member or other personal support person of the involuntary patient;
  • any other things that the Tribunal considers relevant to making the decision.
2.7.4.1 Special concerns arising where the patient is a child

The Registry will take all possible steps to list matters involving children before a panel which includes a child and adolescent psychiatrist.

A ‘child and adolescent psychiatrist’ in the Act means ‘a psychiatrist who has qualifications and clinical training in the treatment of mental illness in children’.

The President (who bears the statutory responsibility for constituting the Tribunal) interprets the ‘qualifications and clinical training in the treatment of mental illness in children’ necessary to be a child and adolescent psychiatrist within the meaning of the Act to be in addition to the qualifications and training necessary to be a psychiatrist within the meaning of the Act.

The President accepts the following as evidence of ‘qualifications and clinical training in the treatment of mental illness in children’ for this purpose:

  • Completion of the RANZCP’s Certificate of Advanced Training in Child and Adolescent Psychiatry; or
  • Accredited Membership of the RANZCP’s Faculty of Child and Adolescent Psychiatry.

Section 394(1)(a) & (2) provide that in the absence of child and adolescent psychiatrist, the Tribunal may have regard to the views of:

  • a medical practitioner or mental health practitioner having qualifications, training or experience relevant to children who have a mental illness; and
  • who is authorised by the Chief Psychiatrist for this purpose.

However, the Chief Psychiatrist has not authorised any medical practitioners or mental health practitioners for the purpose of this section.  The President wrote to the Chief Psychiatrist in 2018 indicating the importance of doing so, but the Chief Psychiatrist has not yet undertaken this task.  This means that it is impossible to comply with section 394 if a child and adolescent psychiatrist member is unavailable to hear the matter.

Faced with this issue, the President may still occasionally constitute a Tribunal for hearings under Part 21 Division 3 if a child and adolescent psychiatrist member is unavailable to hear the application.  Where this happens, Registry staff will inform the health service that they will need to provide evidence at the hearing from a medical practitioner or mental health practitioner who has qualifications, training or experience relevant to children who have a mental illness.  It will then be for the Tribunal members to determine whether they are satisfied that the witness is otherwise sufficiently qualified to provide expert evidence on children who have a mental illness.

2.7.4.2 Ascertaining the patient’s wishes

For the purpose of the Tribunal ascertaining the patient’s wishes under section 394(1)(e), Part 2 Division 4 (Wishes of a person) applies.  This includes (as specified in section 8 of the Act):

  • any treatment decision in an advance health directive made by the person that is relevant to the matter;
  • any term of an enduring power of guardianship made by the person that is relevant to the matter;
  • anything that the person says or does that is relevant to the matter if it is said or done at a time that is reasonably contemporaneous with when those wishes are required to be ascertained;
  • any other things that the Tribunal considers relevant to ascertaining those wishes.

2.8 Onus of proof

The Mental Health Law Centre regularly argues in review hearings that psychiatrists bear the onus providing sufficient evidence to satisfy the Tribunal that the patient remains in need of the order.

The Tribunal’s position (which has been made on behalf of the Tribunal by State Solicitors Office in two reviews before the State Administrative Tribunal) is as follows:

  • Reviews under Part 21 Division 3 (Involuntary treatment orders: review) are review proceeding under s455 of the Act.
  • There is no onus of proof in review proceedings: see by analogy Polizzi v Commissioner of Police [No 2] [2017] WASC 166 [67], citing Bushell v Repatriation Commission (1992) 175 CLR 408, 425 (Brennan J) and McDonald v Director General of Social Security (1984) 1 FCR 354.
  • Pursuant to s455 of the Act, a review proceeding is a hearing de novo, may involve the consideration of new material, and the purpose is to produce the correct and preferable decision at the time of the Tribunal’s decision on the review proceeding;
  • the Tribunal has several mandatory considerations when conducting a review proceeding under Division 3. These include the criteria under s25 of the Act and matters set out in s394 Act.

The Tribunal’s position is that it would be contrary to its duties and the objects of the Act for an involuntary treatment order to be revoked purely because there was insufficient medical evidence to decide at the initial review hearing.  In such circumstances, the Tribunal should consider an adjournment to enable the treating team to present sufficient evidence for the Tribunal to come to a final decision.  Adjournments are discussed further at 2.11 below.

However, it is also contrary to the Act for the Tribunal to adjourn a matter on multiple occasions for further evidence.  The Tribunal’s role is to confirm that there is a need for the order, and the order must be revoked if the Tribunal is not so satisfied.

In adjourning a matter the first time, the Tribunal always invites the psychiatrist to prepare a medical report and to attend the hearing to permit the Tribunal to consider fully the criteria for an involuntary treatment order set out in section 25 of the Act.  Thereafter, if the psychiatrist does not prepare a report and attend the hearing, it is open to the Tribunal to revoke the involuntary treatment order if the Tribunal is not satisfied there is sufficient available evidence to establish need for the order pursuant to section 25 of the Act.

2.9 Tribunal powers

2.9.1 Section 395

The decision the Tribunal is empowered to make at the perioidc review hearing is whether or not the involuntary patient is still in need of the involuntary treatment order having regard to the criteria specified in section 25 (s 387(2)).  The actions that the Tribunal may take based on its decision are set out in section 395.

Section 395 provides that:

  • On completing a review under Part 21 Division 3 (Involuntary treatment orders: review), the Tribunal may make any orders, and give any directions, the Tribunal considers appropriate.
  • Those orders and directions include the following —
    • an order revoking an involuntary treatment order;
    • a direction to the psychiatrist named in the order to make, within a reasonable period specified in the direction, a community treatment order in terms that are consistent with section 115 and specified in the direction;
    • an order varying the terms of a community treatment order in any way that is consistent with section 115.
  • The Tribunal cannot make an order or give a direction under subsection (1) in relation to an involuntary patient’s treatment, support or discharge plan, but may make —
    • a recommendation that the patient’s psychiatrist review the treatment, support or discharge plan; and
    • if such a recommendation is made — a recommendation about the amendments that could be made to the treatment, support and discharge plan.
  • The Tribunal may give a copy of any recommendation made under subsection (3) to the Chief Psychiatrist.

Thus, the Tribunal’s actions following the completion of an initial review hearing are limited to:

  • making orders and directions that the Tribunal considers appropriate;
  • making recommendations about an involuntary patient’s treatment, support or discharge plan.

Some specific examples of the types of orders and directions included are specified at section 395(2).  Potential limitations are discussed at 2.9.2 below.

2.9.2 Important considerations

Members should carefully consider the apparent limitations in section 395 when making orders.

Firstly, section 395(1) empowers orders and directions ‘on completing a review under Part 21 Division 3’.  This raises several important limitations:

  • section 395(1) applies only to the review provided for in Division 3, which include only reviews under section 386, 387, 390, 391 and 396 and nothing else. Section 395(1) orders cannot be made in applications or matters raised on the Tribunal’s initiative under section 398 (declarations for validity), ECT applications, or any other decision-making based outside Division 3.
  • section 395 appears, on its face, to apply only to completed reviews. This suggests that it does not appear to apply to uncompleted reviews (such as adjournments).  This point (like most everything else in the Act) has not been the subject of any judicial consideration.  To ensure that the Tribunal’s orders do not exceed its statutory powers, Member should refrain from using section 395 as a basis for programming orders in adjournments.  The Tribunal’s standard orders for adjournments (see 2.11 below) have been carefully drafted to provide programming suggestions to participants without ordering or directing action.

Secondly, beware the apparent breadth of the Tribunal’s powers under section 395(1) (‘the Tribunal may make any orders, and give any directions, the Tribunal considers appropriate’).  As noted in 1.2.2 of the COAT Manual:

Whenever Parliament gives a power to a tribunal, it sets limits to the power. The limits may be express (i.e. in writing) or implied (as a result of, or flowing from, the written power). This may relate to the procedures for exercising power or to the type of orders the tribunal can make.

Express limitations of the Tribunal’s powers under section 395(1) include those identified in section 395(3), and those evident in the language of the provision.

Implied limitations of the Tribunal’s powers under section 395(1) likely include:

  • that the direction or order arises from the decision the Tribunal is empowered to make (whether the involuntary patient is still in need of the involuntary treatment order having regard to the criteria specified in section 25) and thus should be related to that decision.
  • that the Tribunal considers the direction or order ‘appropriate’. Appropriate means suitable and proper in the circumstances.  This language would seem to imply the need to carefully consider the context and objects of the Act in determining what is appropriate.
  • that the order or direction does not involve an unreasonable exercise of a power given the subject matter of the jurisdiction and the context of the Act.

In the past, Members have used section 395(1) as the statutory basis for a range of orders, including interlocutory orders, and orders/directions that psychiatrist review patients, prepare reports and attend hearings in circumstances where is otherwise no statutory power to do so.

Where the legal member makes orders that are not set out in the standard orders, he or she should provide clear reasons for the orders (including the statutory power relied upon).  This will preserve the Member’s reasoning in the event of a request for review.

2.10 Determinations and orders available

The Tribunal’s standard orders have been carefully prepared to incorporate the range of statutory options available for most situations you will encounter in a hearing.  The standard orders are always open to revision, and suggestions should be sent to the President for consideration and discussion with legal members.

The standard orders available for a completed initial or periodic review hearings are set out here.

2.11 Adjournments

2.11.1 Statutory power to adjourn?

The Act contains no express statutory power to adjourn.  The only express reference to adjournments is in section 457 of the Act, which provides, in its entirety, as follows:

  • The Tribunal may conduct a hearing in the absence of a party if satisfied that —
    • the party has been given notice of the hearing; and
    • it is in the best interests of the person concerned in the proceeding for the hearing not to be adjourned.

Sections 386(3) and 387(3) also both refer to commencing a hearing and completing it at a later date, which would appear to be an implicit reference to adjournment:

It is sufficient for compliance with subsection (2) if a review is commenced in accordance with that provision and is completed as soon as practicable.

The Legislative Counsel Explanatory Memorandum of the Mental Health Bill 2013 provides that, in relation to the clause that became s386:

Clause 386 requires that, subject to some narrow exceptions, the MHT is to commence (to allow for adjournments, for example to obtain a further psychiatric opinion or more information) an initial review of an involuntary patient order as soon as practicable and, in any event, within the specified time limits.

This comment is equally applicable to periodic reviews in s387 of the Act.

In a recent review before the State Administrative Tribunal, the Mental Health Law Centre argued that it is ‘not lawful’ for the Tribunal to adjourn a hearing to permit the treating psychiatrist to supplement the medical evidence.  This point was not decided by the State Administrative Tribunal because the matter was dismissed on other grounds.  The Tribunal’s position on this point is discussed at 1.8 Onus or proof above.

1.11.2 The Tribunal’s position on adjournments

Adjournments are distressing and inconvenient for patients, and a significant waste of public resources to hospitals, treating teams, MHAS, MHLC, and the Tribunal.  Nevertheless, they are required for procedural fairness from time to time.  For these reasons, adjournments should be used only as a last resort.

Approximately 15% of hearings are adjourned by the Tribunal on the day.  About 55% of these adjournments involve the absence of adequate medical evidence or non-attendance of a medical officer with adequate knowledge of the patient.  The President continues to address such issues with health services.  Use of the adjournment standard orders helps to monitor these issues.

The Tribunal’s position is that it would be contrary to its duties and the objects of the Act for an involuntary treatment order to be revoked purely because there was insufficient medical evidence to decide at the first review hearing.  In such circumstances, the Tribunal should consider an adjournment to enable the treating team to present sufficient evidence for the Tribunal to come to a final decision.

However, it is also contrary to the Act for the Tribunal to adjourn a matter on multiple occasions for further evidence.  The Tribunal’s role is to confirm that there is a need for the order, and the order must be revoked if the Tribunal is not so satisfied.

In adjourning a matter the first time, the Tribunal always invites the psychiatrist to prepare a medical report and to attend the hearing to permit the Tribunal to consider fully the criteria for an involuntary treatment order set out in section 25 of the Act.  Thereafter, if the psychiatrist does not prepare a report and attend the hearing, it is open to the Tribunal to revoke the involuntary treatment order if the Tribunal is not satisfied there is sufficient available evidence to establish need for the order pursuant to section 25 of the Act.

1.11.3 Adjournment standard orders

The Tribunal’s standard orders have been carefully prepared to incorporate the range of statutory options available for most situations you will encounter in a hearing.  The standard orders are always open to revision, and suggestions should be sent to the President for consideration and discussion with legal members.

The adjournment standard orders available for initial or periodic review hearings are set out here.

Page reviewed 18 November 2020