The Tribunal makes decisions based on information provided at a hearing.
A hearing is a meeting where the Tribunal listens to the participants’ views and then makes a decision. Participants may include:
- the patient;
- the patient’s carer, close family member, or other personal supporter;
- someone chosen by the patient to attend;
- the patient’s representatives (a legal practitioner, mental health advocate, or other advocate approved by the Tribunal); and
- the treating team (the psychiatrist and a case manager or nurse).
Where required, the Tribunal provides translators for the hearing.
The Act provides many rules for the hearing process. The hearing must be as informal as possible. It must not be overly technical. It must only be as long as it needs to be. The hearing must be procedurally fair. It must also be private, and the Act limits publication of private patient information. Criminal penalties may apply for unauthorised disclosure of this private information.
When the Tribunal holds hearings, it usually sits in a panel of three. One member of the panel is a lawyer, one is a psychiatrist, and the third is a community member. The legal member is always the ‘presiding member’. This means that the legal member manages the hearing and delivers the decision on behalf of the three Tribunal members. Legal members also decide all questions of law (including questions about how the law applies to the facts). A majority of the three members decides other questions.
Tribunal proceedings are free. The Tribunal does not charge application or hearing fees.
The Tribunal usually holds its hearings at the hospital or health service treating the patient. This is for the convenience of participants only. The Tribunal is independent and is not part of the treating team or the health service.
At the hearing, the Tribunal allows participants to call evidence, examine or cross-examine witnesses, and make submissions. The psychiatrist is required to prepare a medical report on the patient’s condition and give a copy of the report to the patient. The formal rules of evidence do not apply.
In conducting hearings and making decisions, the Tribunal must have regard to the objects of the Act (s10) and the Charter of Mental Health Care Principles.
At the end of each hearing, the Tribunal tells the patient its decision, and the reasons for its decision.
Page reviewed 11 March 2021