Chapter 3: Applications for review (s 390) and Review on Tribunal Initiative (s 391)

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3.1 Relevant legislation

Mental Health Act 2014 (WA) (the Act) s 390, 391, 392, 393, 394, 395.

3.2 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.

Mental health advocate means either the Chief Mental Health Advocate or a mental health advocate engaged under section 350(1) (s 4).

Person specified in subsection (2) means either the involuntary patient; a carer, close family member or other personal support person of the involuntary patient; a mental health advocate; or any other person who, in the Tribunal’s opinion, has a sufficient interest in the matter (s 390(2)).

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 period after the day on which the Tribunal makes a decision means —

  • if, on the day on which the decision is made, the involuntary patient is an adult — the period of 28 days; or
  • if, on the day on which the decision is made, the involuntary patient was a child — the period of 7 days.

Transfer order includes an order under section 66(1) (being a transfer from a general hospital to an authorised hospital using a Form 4C)) or 91(2) (being a transfer between authorised hospitals using a Form 4C)) or 555(1) (being an interstate transfer using a Form 4E).

Transfer of responsibility includes an order using a Form 5C transferring responsibility for the community treatment order under s 135(1)(a) (being a change of supervising psychiatrist) or s 137(a) (being a change of treating practitioner).

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.

3.3 Statutory obligation to conduct review, exceptions and timing: Section 390 Application for Review

3.3.1     Statutory obligation to review

The Tribunal’s obligation to review under section 390 is triggered by its receipt of a written application made by a person specified in section 390(2):  the involuntary patient; a carer, close family member or other personal support person of the involuntary patient; a mental health advocate; or any other person who, in the Tribunal’s opinion, has a sufficient interest in the matter.

Whether a person is one who ‘in the Tribunal’s opinion, has a sufficient interest in the matter’ is a preliminary question for the Tribunal to determine at the hearing.  If the Tribunal accepts the application on this basis, the Tribunal’s first order in the proceeding should be:

The Tribunal is of the opinion that the applicant has a sufficient interest in the matter to bring the application.

The application should be in the Tribunal’s specified form available on the Tribunal’s website, either the Application for Review of Involuntary Treatment Order s 390(1)(a), (b), or (c) or the Application for Review of Transfer Decision s 390(1)(d), (e), (f), or (g).

The Tribunal must conduct the review as soon as soon as practicable (see s 484(c)).   As noted by the Court of Appeal in Geldert -v- Western Australia [2012] WASCA 226 at [50], ‘as soon as practicable’ does not mean immediately.  Rather:

The word ‘practicable’ is not defined in the Act. It has its natural and ordinary meaning of ‘capable of being put into practice, done or effected, especially with the available means or with reason or prudence; feasible’: Wright v Western Australia (2010) 203 A Crim R 339 [26], [148].

‘As soon as practicable’ does not mean ‘as soon as possible’ (see Western Australia v Rothmans of Pall Mall (Australia) Pty Ltd [2001] WASCA 25 [24].

3.3.2     Exceptions

There is no power to review under section 390 in the absence of a written application (s390(3)).  An application under section 390 cannot be raised orally in the course of a hearing on another issue.

There is no power to review under section 390 if an application is not made by a person specified in section 390(2) (s390(1)).

3.3.3     Timing

An application cannot be made within the prescribed period after the day on which the Tribunal makes a decision that involves a consideration of substantially the same issues as would be raised by the application unless there has been a material change in the involuntary patient’s circumstances since that day (s390(4)).

The prescribed period is:

  • if, on the day which the decision is made, the involuntary patient is an adult – the period of 28 days; or
  • if, on the day which the decision is made, the involuntary patient is a child – the period of 7 days.

Any involuntary treatment order (an inpatient treatment order or community treatment order) which is the subject of the review must be in force at the time of review.  It is not possible to review an order that is not in force (s 22, 23).

3.3.4     Application requirements

An application may be made by either the involuntary patient; a carer, close family member or other personal support person of the involuntary patient; a mental health advocate; or any other person who, in the Tribunal’s opinion, has a sufficient interest in the matter (s390(2)).

The application must be made in writing (s 390(3)).

An application may be made at any time unless a prescribed exclusion period applies (s 390(4)) – refer to paragraph 3.3.3 above).

3.4 Statutory obligation to conduct review, exceptions and timing: Section 391 Review on Tribunal’s own initiative

The Tribunal may, on its own initiative whenever it considers it appropriate, review:

  • an involuntary treatment order, to decide whether the patient still needs the order;
  • an inpatient treatment order, to decide whether the patient still needs the order;
  • a community treatment order, to decide whether the terms of the order are appropriate;
  • an order authorising transfer of involuntary patients to or between authorised hospitals (or a refusal to transfer), to decide whether it is appropriate;
  • an order transferring patient responsibility between supervising psychiatrists (or a refusal to transfer), to decide whether it is appropriate;
  • an order transferring patient responsibility between treating practitioners (or a refusal to transfer), to decide whether it is appropriate; and
  • an order transferring certain inpatients interstate (or a refusal to transfer), to decide whether it is appropriate.

A review on the Tribunal’s own initiative is a proceeding within the meaning of section 379, and the notice requirements in section 447 apply.  Parties have a right to be heard under section 459 and the Tribunal is bound by the rules of natural justice.  As noted in 3.3.1 of the COAT Manual, natural justice requires that before making a decision that may adversely affect a person’s rights or interests, the person should have an opportunity to be heard.  ‘Interests’ is not confined to legal rights.  Accordingly, where the Tribunal considers the validity of a treatment order on its own initiative, it should consider whether an adjournment is necessary to comply with these requirements.

The broad scope of the factual issues considered by the Tribunal means that the Tribunal may owe a duty of procedural fairness beyond the parties or those who are entitled to notice under section 447.  For example, where the matter concerns the appropriateness of a transfer decision, the duty of procedural fairness could extend to the supervising psychiatrists and treating practitioners involved.

3.5 Nature of proceedings

Proceedings under Part 21 Division 3 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)).

3.6 Parties

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

  1. the involuntary patient; and
  2. if the proceeding relates to an application made under section 390 and the applicant is not the involuntary patient — the applicant; and
  3. 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.

3.7 Statutory tests: 390(1) and 391

Section 390 identifies seven different types of applications, with several different tests.

3.7.1     Sections 390(1)(a) and 390(1)(b)

Section 390(1)(a) empowers the Tribunal to review an involuntary treatment order (either an inpatient treatment order or a community treatment order) to decide whether or not the involuntary patient is still in need of the order having regard to the criteria specified in section 25.

Section s390(1)(b) empowers the Tribunal to review an inpatient treatment order to decide whether or not the involuntary patient is still in need of the order having regard to the criteria specified in section 25.  It is unclear in what way (if any) s s390(1)(b) goes beyond what is provided for in section 390(1)(a).  It is unclear whether this is a drafting error.

As with a review under section 386(2) or 387(2), the Tribunal’s role is 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.

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 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.

3.7.1.1  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.
3.7.1.2  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.
3.7.2     Section s390(1)(c)

Section 390(1)(c) empowers the Tribunal to review a community treatment order to decide whether or not the terms of the order are appropriate.

Section 115 provides the mandatory terms of a community treatment order.  The attachment to a Form 5A community treatment order form incorporates these mandatory terms of the order (such as the name of the supervising psychiatrist, the requirement that the patient comply with all of the supervising psychiatrists directions to the patient about treatment provided under the order, the date and time it comes into force and the treatment period, and the like).  It provides for the inclusion of specific directions to the patient about the treatment to be provided under the order.

The purpose of the Tribunal’s review under section 390(1)(c) is to decide whether or not the terms of the order are ‘appropriate’.  The Act provides no guidance on the meaning of appropriate.  The Macquarie Dictionary (3rd ed 1997) defines appropriate as ‘suitable or fitting for a particular purpose, person, occasion, etc’.

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)).

3.7.3     Section s390(1)(d)

Section 390(1)(d) empowers the Tribunal to review a transfer order (or the refusal to make a transfer order) to transfer involuntary patients between hospitals under sections 66(1) (from a general hospital to an authorised hospital) or 91(2) (from an authorised hospital to another authorised hospital).

The purpose of the Tribunal’s review under section 390(1)(d) is to decide whether or not the transfer order (or the refusal to make a transfer order) is ‘appropriate’.  The Act provides no guidance on the meaning of appropriate.  The Macquarie Dictionary (3rd ed 1997) defines appropriate as ‘suitable or fitting for a particular purpose, person, occasion, etc’.

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)).

3.7.4     Section s390(1)(e)

Section 390(1)(e) empowers the Tribunal to review a transfer (or the refusal to transfer) a psychiatrist’s responsibility as the supervising psychiatrists under a community treatment order pursuant to section 135(1)(a).

The purpose of the Tribunal’s review under section 390(1)(e) is to decide whether or not the transfer (or the refusal to transfer) responsibility is ‘appropriate’.  The Act provides no guidance on the meaning of appropriate.  The Macquarie Dictionary (3rd ed 1997) defines appropriate as ‘suitable or fitting for a particular purpose, person, occasion, etc’.

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)).

3.7.5     Section s390(1)(f)

Section 390(1)(f) empowers the Tribunal to review a transfer (or the refusal to transfer) a practitioner’s responsibility as the treating practitioner under a community treatment order pursuant to section 137(a).

The purpose of the Tribunal’s review under section 390(1)(f) is to decide whether or not the transfer (or the refusal to transfer) responsibility is ‘appropriate’.  The Act provides no guidance on the meaning of appropriate.  The Macquarie Dictionary (3rd ed 1997) defines appropriate as ‘suitable or fitting for a particular purpose, person, occasion, etc’.

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)).

3.7.6     Section s390(1)(g)

Section 390(1)(g) empowers the Tribunal to review an interstate transfer order (or the refusal to make a transfer order) to transfer involuntary patients between states pursuant to section 555(1).

The purpose of the Tribunal’s review under section 390(1)(g) is to decide whether or not the transfer order (or the refusal to make a transfer order) is ‘appropriate’.  The Act provides no guidance on the meaning of appropriate.  The Macquarie Dictionary (3rd ed 1997) defines appropriate as ‘suitable or fitting for a particular purpose, person, occasion, etc’.

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)).

3.7.7    Statutory tests: own initiative review 391

The statutory tests for review under section 391 are identical to section 390.

3.7.8     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.

3.7.8.1 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.

3.7.8.2 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.

3.8 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.

3.9 Tribunal powers

3.9.1 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 3.9.2 below.

3.9.2 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 3.11 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.

3.10 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 application under section 390(1)(a), (b), or (c) and 391(a) are set out here.

The standard orders available for a completed application under section 390(1)(d), (e), (f) or (g) and 391(b) and (c) are set out here.

3.11 Adjournments

3.11.1 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.

3.11.2 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.

3.11.3 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 an application under section 390(1)(a), (b), or (c) and 391(a) are set out here.

The adjournment standard orders available for an application under section 390(1)(d), (e), (f) or (g) and 391(b) and (c) are set out here.

 

Page reviewed 18 November 2020