Tech Literate, Accessible, Adaptable – The (Modern) Mental Health Review Tribunal
The Mental Health Review Tribunal in its current design was conceived of the Mental Health Act 2000 (Qld). It replaced the old Patient Review Tribunals that had decided the status of involuntary patients. The 2000 Act also established the Mental Health Court to replace the Mental Health Tribunal which had similarly been constituted by a Supreme Court Judge and two experienced psychiatrists.
Since the 2000 Act came into force the inquisitorial Mental Health Court has, largely, determined whether defendants charged with criminal offences have a mental health defence or are not fit for trial. Where necessary, orders can be made to require the involuntary mental health treatment or care of discharged defendants. Those orders are then periodically reviewed by the Mental Health Review Tribunal. The Tribunal also reviews treatment authorities and hears applications for electroconvulsive therapy, non-ablative neurosurgery, examination authorities (for the involuntary examination of mental state), the transfer of forensic patients, and appeals of decisions made by Administrators of Authorised Mental Health Services or the Forensic Disability Service.
The Mental Health Act 2016 (Qld) is currently in force. Three main types of involuntary treatment now exist: forensic orders, treatment support orders, and treatment authorities. Most of the Tribunal’s work involves confirming, amending, or revoking these three types of orders.
Treatment authorities can be made by the Mental Health Court, the Tribunal, or a psychiatrist. The overwhelming majority of treatment authorities are made by psychiatrists responding to acute treatment needs. They authorise either involuntary community or inpatient treatment and limit a person’s human rights. Once made, they are independently reviewed by the Tribunal within a month and then periodically if continued. Reviews can also be held upon a patient’s application at any time.
Treatment support orders were introduced by the 2016 Act. They equally require involuntary treatment but are the less restrictive counterpart to forensic orders. The legislative test for the creation and review of treatment support orders defaults patients to community-based treatment, unless it is demonstrated that inpatient treatment is required. Forensic orders instead default to inpatient treatment, unless allowing the patient to be treated in the community would not present an unacceptable risk to others.
Since 2017 the number of patients subject to treatment support orders has steadily increased. They have proved useful as a ‘step down’ option when the Tribunal has revoked forensic orders on review. The legislation requires both orders to be reviewed at least six-monthly. Tribunal policy ensures orders that relate to more serious offending (‘prescribed offences’) earn enlarged panels with more senior Members.
Forensic orders call for a greater level of oversight. More clinicians are typically involved with the person’s treatment and assessment. The Attorney General and the patient will routinely be represented by solicitors (or counsel on occasion) at forensic order review hearings.
For the review of treatment support orders and treatment authorities, the Attorney General does not have standing and patients are not typically appointed a lawyer. Nevertheless, some patients benefit from a healthy pro bono culture within the jurisdiction. In the absence of data on such pro bono representation it is clear to me that the practitioners familiar with the jurisdiction do whatever they can. Mercifully, Tribunal hearings are allocated strict start and finish times. The work is not for everyone but does afford certainty of listing and is a good opportunity to advocate in an administrative law setting.
Formalities, including the rules of evidence, are softened to promote the inclusion of vulnerable consumers during hearings. Anxious, elevated, or unwell patients are given time and space to communicate their views. Sometimes, inessential evidence is heard so that patients may find their voice and ultimately express genuine views, wishes, and preferences. Though a limited power exists for witnesses to be sworn, taking such a step would be highly unusual. Oral evidence often takes a conversational form and findings of weight replace findings of credit.
Though some exceptions are available with the President’s approval, most Tribunal panels are constituted by a Presiding Member (a lawyer), a consultant psychiatrist, and a Member with significant experience in the Tribunal’s jurisdiction (e.g. a psychologist or Indigenous Elder). Care is taken so that panels tend to reflect the community they serve.
Currently, the Tribunal has 119 Members of which 65 are female, 10 are Indigenous, 5 are South Sea Islander, and 60 are otherwise culturally and linguistically diverse. There are 15 Members based around regional Queensland, 8 of which are north of Rockhampton. Among the cohort of 21 senior Members (those with some form of delegation from the President), 15 are female.
Hearings take place within mental health services and hospitals all over Queensland, from the Gold Coast to the Torres Strait Islands. Before COVID, panels almost exclusively constituted in person at a hearing room within the health services. Telehealth was an available plan-B, but it became the new normal overnight when the pandemic set in. Members were armed with the skills and equipment required to afford parties a fair hearing from their couches and the jurisdiction did not miss a beat. Members accessed material through an online portal and signed orders electronically. The digital learnings of 2020 have continued and improved.
The clean shift to audio-visual hearings was partly thanks to the culture of professional development that continues to be observed. Members have access to various learning opportunities held monthly or bi-monthly, which are administered by Deputy President Monique Ulrick-Hunter and a passionate professional development committee. An internal website offers a library of Member resources. Self-paced courses on various aspects of the jurisdiction are also available to Members. Learning and development is not confined to the routine functions of the Tribunal. By example, an upcoming topic will address the legal implications of using artificial intelligence in decision making.
Nowadays the in-person Tribunal hearings are returning, and a greater presence in regional Queensland has been pursued. Both the Tribunal’s full-time Members are regionally based and travel about Queensland to increase the opportunities for rural and remote participants to have the same access to the jurisdiction that metropolitan populations enjoy.
Full-time Member Mr David Wenitong is a First Nations man himself. He circuits to Indigenous communities to afford more opportunities for patients to appear before a culturally appropriate and inclusive panel. All members receive tailored training to improve cultural literacy and their understanding of the unique challenges faced by persons with mental illness and intellectual disability.
Because it must be, the Mental Health Review Tribunal jurisdiction is an accessible, IT savvy, and adaptable example to be followed.
Matt Heelan is a senior Full Time Member of the Mental Health Review Tribunal and an associate member of the Queensland Bar Association. He was appointed as a sessional Member in 2018 and continued to practice at the bar until this year, when he accepted the temporary full-time appointment that he is currently serving.
