PART 5

RIGHTS OF INVOLUNTARY PATIENTS

INTRODUCTION

5.1 A person with a mental illness may need to be given treatment against their wishes. Referred to as “involuntary” patients, such persons experience some loss of personal freedom. These involuntary patients comprise 3 main groups:

• patients who are referred from the criminal justice system, generally known as “security” patients, who receive involuntary treatment while they remain the joint responsibility of correctional services and public mental health services;

• involuntary inpatients detained within a mental health facility; and

• persons receiving involuntary treatment while they continue to live in the community (referred to as a “community treatment order” patients).

5.2 The admission process for security patients is shown in Chart 5A.

CHART 5A
Admission process for security patients

Source: Mental Health Review Board, 2002.

5.3 The admission process for involuntary inpatients and community treatment order patients is illustrated in Chart 5B.

CHART 5B
Admission process for involuntary inpatients and
community treatment order patients

Source: Mental Health Review Board, 2002.

5.4 Both administrative practices and management data from the Mental Health Review Board were examined by this audit. Seventy-five “administrative” patient files held by the Board and 935 “clinical” patient files held by Area Mental Health Services (AHMSs) were examined, and 30 involuntary mental health patients were interviewed. The operations of Boards in other States were also considered for comparative purposes.

MENTAL HEALTH REVIEW BOARD

Legislation

5.5 The Mental Health Review Board is an independent administrative review tribunal that conducts hearings to determine whether it is necessary for a person to continue to be treated as an involuntary patient. In making its decision, the Board must consider the need of the individual to receive treatment, the loss of freedom that the individual experiences when they are treated involuntarily, and the interests of the community.

5.6 Established under the Mental Health Act 1986, the main functions of the Board are to:

• review all involuntary patients within 8 weeks of admission to decide whether their involuntary status should continue;

• hear appeals from involuntary inpatients and security patients, and people on community treatment orders who want to be discharged;

• review all involuntary patients at least every 12 months to decide if their involuntary status should continue; and

• review every decision to extend a community treatment order.

5.7 In undertaking these appeals and reviews, the Board must assess whether or not the person in question satisfies certain criteria. The criteria for involuntary treatment as listed in the Mental Health Act are summarised below:

• the person appears to be mentally ill; and

• the person’s mental illness requires immediate treatment, and that treatment can be obtained by an involuntary admission to an approved mental health service or by the patient being placed on a community treatment order; and

• the person needs to be treated as an involuntary patient for their own health or safety, or for the protection of members of the public; and

• the person has refused, or is unable to consent to, the necessary treatment; and

• the person cannot receive adequate treatment for their mental illness in a manner less restrictive of their freedom.

Resources

5.8 The Board presently has 77 sessional members who conduct hearings in accordance with the Mental Health Act. The Board has a full-time President, and 9 permanent staff members employed under the Public Sector Management and Employment Act 1998. The Board’s operating expenses for 2000-01 were about $1.5 million.

Board operations

5.9 The Board states that its vision is:

• to be respected and recognised as an expert body that operates sensitively to the needs of its users and which fairly balances the rights of the mentally ill, their families and carers, and the community as a whole; and

• to remain an efficient, effective and independent organisation empowered to protect the rights of people with a mental illness.

5.10 Initial reviews of involuntary patients are heard by panels consisting of 3 Board members. Each panel must include a presiding member (who is a qualified lawyer), a psychiatrist member and a member representing the community. The Mental Health Act allows a single member Board to conduct annual reviews and reviews of extensions to community treatment orders.

5.11 Panels of the Board sat 917 times in 2001, and conducted hearings at 43 different venues around the State. Teleconferencing was used in 4 per cent of hearings in order to hear cases in remote areas. The Board has established a regular schedule of sitting dates and venues to which it adheres for the purposes of rostering its members. The frequency of sitting dates varies from fortnightly to monthly, depending upon the venue. In exceptional circumstances, the Board establishes special sittings.

Board members travelling to a regional venue.

5.12 Of the 5 690 cases determined by the Board in 2001, 82 per cent were reviews, while the remaining 18 per cent were appeals. A breakdown of cases by patient status and presenting issue is shown in Table 5C.

TABLE 5C
types of Cases heard by the Mental Health Review Board,
2001

Source: Mental Health Review Board, 2002.

5.13 Trends in the Board’s workload since commencing operations in 1987 are shown in Chart 5D.

CHART 5D
Mental Health Review Board
trends in scheduled and completed cases (a)

(a) Scheduled cases also include cases that have been rescheduled or adjourned. Completed cases do not include persons released from their involuntary status prior to their case being heard by the Board.

Source: Mental Health Review Board, 2001.

5.14 Over the period 1987-88 to 2000-01, the number of cases scheduled to come before the Board increased by 607 per cent, while the number of cases actually completed by the Board increased by 574 per cent. Over this period of growth in cases, the Board’s efficiency has improved, with the cost per completed case falling from $472 in 1987-88 to $251 in 2000-01.

Induction and training of Board members

5.15 The Board advises that all new Board members go through a comprehensive induction program. This involves observations of divisions of the Board, several induction seminars, a mentoring program and distribution of a comprehensive “Members’ Manual”. Regular meetings of Board members are held each year for the purpose of ongoing education and training, and to discuss any current operational issues.

All new Board members participate in a comprehensive induction program.

PROTECTING PATIENT RIGHTS

5.16 Apart from patients having the right to appeal to the Mental Health Review Board at any time about their involuntary status, the Board also protects the rights of patients by automatically scheduling and conducting reviews. Involuntary patients have certain rights in relation to the hearing of reviews and appeals, including:

• to be notified of the time and location of their hearing;

• to have a legal representative or other person attend the hearing;

• to have access to all information being submitted to the Board as part of their hearing;

• to be present at their own hearing;

• to have their case heard by a fair and impartial tribunal division conducting the proceedings informally, and without regard to technicalities or legal forms, according to equity and good conscience, and applying the rules of natural justice;

• to have their hearing conducted within the time frames specified in the Act;

• to request a written statement of reasons for a Board decision within 28 days of the hearing and to receive it within 14 days of the request; and

• to apply for a review of any decisions of the Mental Health Review Board to the Victorian Civil and Administrative Tribunal.

5.17 The Board’s observation of these rights is considered in the following sections of this Part of the report.

Notice of hearings

5.18 Patients have a right to be notified of their Board hearing. Normally, notice of more than 7 days is given in order to allow time for patients and their doctors to prepare for the hearing. The Notice of Hearing includes a letter setting out the details of the matters to be heard. The time and place of the hearing, and a brochure providing information to assist the patient in preparing for the hearing is also included.

5.19 Involuntary inpatients are given their Notice of Hearing by a member of the staff of the mental health service. Patients living in the community are sent their Notice of Hearing by the Board through the mail. Of all the Notices of Hearing issued for 2001, 56 per cent were mailed to the person’s home address; the remaining 44 per cent were faxed to the mental health service where the person was being treated.

5.20 Interviews with 30 involuntary patients did not raise any concerns with regard to patients receiving notice of their hearing.

Legal representation

5.21 Patients have the right to arrange for someone to represent them or assist them at their hearing. The Board’s information brochure for patients advises that if the patient cannot afford the cost of legal representation, they can apply to Victoria Legal Aid or the Mental Health Legal Centre for assistance. However, not all such applications are granted. In contrast, the South Australian Mental Health Act legislates for the provision of free legal representation to people appearing before its Guardianship Board (which fulfils a similar function to the Victorian Mental Health Review Board).

5.22 Victorian patients were legally represented at about 10 per cent of all hearings during 2001. Of the representation provided, about 68 per cent was by Victorian Legal Aid, 24 per cent by the Mental Health Legal Centre and 7 per cent by private lawyers.

5.23 In an examination of 935 patient files held by Area Mental Health Services (AHMSs), 73 per cent were involuntary patients. In less than 31 per cent of these cases, the patient’s file contained documented evidence that the patient had been provided with general information about their rights by the AMHS. The Mental Health Act 1986 requires that every involuntary patient be provided with a printed statement of their rights and an oral explanation of this information, upon their admission to a mental health service.

5.24 Of the 30 involuntary patients interviewed, almost half indicated that they were not aware of their right to be legally represented. Of those patients who were aware of this right, most reported that they learned about the availability of legal and advocacy services from notice boards within mental health services. This result was unexpected given that the Notice of Hearing served on patients contains information about the right to have representation when appearing before the Board.

5.25 Only one of the 30 patients reported that staff from the mental health service offered to help the patient arrange their legal representation. Correspondence between the Board and the Office of the Chief Psychiatrist in 2001 indicates that there is no consistent approach within AHMSs regarding the facilitation of legal representation for involuntary patients.

5.26 Interviews with involuntary patients and their advocates suggests that, despite the efforts of the Board to conduct hearings in an informal manner, patients can feel confused, powerless and intimidated by Board processes. This is particularly so for patients who are unrepresented, suffering from the effects of their illness and, at times, the negative side effects of their medication.

The right to information

5.27 A representative of the authorised psychiatrist, generally the patient’s supervising doctor, is required to appear at the patient’s Board hearing and must provide the Board with a written report. Patients have the right to inspect all documents that are to be given to the Board in connection with their hearing, including the doctor’s report and the patient’s own medical file. The patient must be given access to all these documents at least 24 hours before the hearing.

5.28 Interviews with stakeholders indicate that in their experience the Board does not routinely check, at the commencement of hearings, to ensure that patients have been made aware of their right to access information. This is a requirement of Board members as specified in the “Members’ Manual”.

5.29 The Board provides patients with advice about their right of access to information through an information brochure that is sent to patients prior to their hearing. During interviews with involuntary patients, about 30 per cent indicated they were not aware of their right to access information. Of those patients, who were aware of this right, a common source of complaint concerned difficulties patients experienced in gaining access to their own medical file and to the doctor’s report to the Board. The Board initially brought this problem to the attention of the Office of the Chief Psychiatrist in 2001.

5.30 The Mental Health Act 1986 makes provision for doctors to apply to the Board for an order that certain documents not be inspected by the patient. The grounds for seeking such an order are either that such inspection would cause serious harm to the patient’s health; or the health or safety of another person; or involve the unreasonable disclosure of information relating to the personal affairs of any person; or breach a confidentiality provision imposed by the person who supplied the information contained in the document. The Board received 26 applications to withhold information from patients in 2001.

5.31 Applications to restrict a patient’s access to information are dealt with at the beginning of a Board hearing. The Mental Health Legal Centre advised that this practice presents difficulties for patients without legal representation, as no-one can assess the withheld information on behalf of the patient and assist the patient in contesting the application for non-disclosure. Should the Board decide to refuse the doctor’s application for non-disclosure, the patient then has little time to consider the information in the contested document. In these circumstances the Board advises that, where necessary, extra time is allowed on the day for patients to read and understand any information to which they have not previously had access.

Attendance of patients

5.32 Patients have the right to appear in person at their hearing unless the Board decides that their appearance would be detrimental to the patient’s health. The Board may hear a review or appeal without the patient being present if it is satisfied that the patient has made the decision not to attend of their own free will. A patient who does not wish to attend can sign a simple form to indicate their preference not to attend. Alternatively, the patient can telephone the Board to advise of their intentions.

5.33 During 2001, patients were not present at 38 per cent of hearings. In 31 per cent of hearings, the patient gave prior notice that they did not wish to participate, and in 7 per cent of hearings the patient simply did not attend on the day. This pattern was similar for both metropolitan and regional venues.

5.34 In the event of a person failing to attend their hearing without having given prior notice, or where the Board members are uncertain of the patient’s intention to attend the hearing, the Board adjourns the hearing, and notifies the person of a new hearing date. Should the person fail to attend the second hearing, the Board then determines the case in the person’s absence. In the case of inpatients, on rare occasions, a Board member will seek to speak with the patient to clarify that the person does not wish to attend their own hearing.

Patient access

Initial reviews

5.35 Victorian legislation requires that a person’s continued detention be reviewed within 8 weeks of their initial admission. This is the longest period of unreviewed involuntary detention in the country, except for Western Australia which also stipulates 8 weeks.

5.36 In Victoria, the Board aims to schedule all initial reviews approximately 6 to 7 weeks after the patient’s admission. Patients are listed for review by the Board after they have been registered as an involuntary patient for a minimum of 2 weeks.

A Board hearing in progress.

5.37 Statistics provided by the Department of Human Services show that, during 2001, 51.6 per cent of involuntary patients were discharged within the first 2 weeks of admission and were not therefore listed for initial review by the Board. Of the 6 372 initial reviews listed for hearing in 2001, 37.8 per cent of patients listed for hearing were discharged from their involuntary status prior to the hearing date. Thus, the majority of involuntary patients (69.8 per cent) do not appear before the Board to have their situation independently reviewed, unless they appeal.

5.38 The reason most involuntary patients do not appear before the Board is due to changes to mental health treatment practices over time. Since the Act was originally introduced and later amended in 1993, patient treatment times have fallen significantly. During 2001, for example, the average involuntary patient was released from their involuntary status after 21 days. Hence, the majority of patients (nearly 70 per cent) are released from their involuntary status without coming before the Board for a hearing, unless they appeal.

5.39 The Board conducted 2 179 initial reviews in 2001. With the exception of cases delayed because of adjournment, all but 25 initial reviews were heard within the legislated 8-week time frame. Extensions to community treatment orders are viewed similarly to new admissions and must also be heard within 8 weeks of their commencement. On average, it took 6 weeks to conduct hearings for each of 1 111 Community Treatment Order extensions in 2001 (excludes 412 cases delayed because of adjournments).

Annual reviews

5.40 The Mental Health Act 1986 also requires that involuntary patients be reviewed within 12 months of their previous review. With the exception of the South Australian Board which also reviews continued detention annually, all other States review ongoing detention at intervals of either 3 or 6 months¹. Combined with an initial review by the relevant State Board or Tribunal, this arrangement generally makes for a more frequent independent assessment of the patient’s status than is the case in Victoria.

5.41 About 8.3 per cent of annual reviews concern involuntary inpatients, 89.9 per cent concern Community Treatment Order patients and 1.8 per cent relate to patients detained under other sections of the Act, such as security patients. Of the 3 077 annual reviews listed for hearing in 2001, 22.3 per cent (or 686) of patients were discharged prior to their hearing date. The Board finalised 1 336 annual reviews in 2001. While these figures would appear to suggest a backlog of around 1 000 annual reviews over the year, this is not necessarily the situation. The figure of 3 077 annual reviews listed for hearing in 2001 also includes reviews that are rescheduled and/or adjourned. Hence, an individual review can be counted more than once.

Appeals

5.42 Involuntary patients have the right to appeal to the Board at any time, and patients may appeal as often as they choose. The Mental Health Act 1986 requires the Board to hear appeals without delay. Appeals are scheduled by the Board to be heard at the next available sitting day at the service location where the patient is receiving treatment. If the person appealing has not yet had an initial review of their detention, this review will be brought forward, as the Act permits reviews to be heard at the same time as the appeal. The person is then sent a notice of the appeal hearing, as well as information about the Board hearing process and their rights.

5.43 Of the 30 involuntary patients interviewed for this audit, 30 per cent claimed not to have been aware that they had a right to appeal to the Board against their status as an involuntary patient. The Board advises all involuntary patients of their right to appeal in a poster which the Board distributes to AHMSs. Information brochures produced by the Board specifically discuss this right of appeal.

5.44 Just over 15 per cent of the 2 077 appeals listed in 2001 did not proceed to hearing due to the patient being discharged from their involuntary status prior to the hearing date.

Rescheduled hearings and adjournments

5.45 On occasions, hearings are rescheduled to suit the needs of patients and/or their doctors. A decision to reschedule differs from an adjournment in that the decision to reschedule is made by the Board’s administrative staff at least 24 hours before a hearing is listed to occur. During 2001, about 2 000 review cases were rescheduled. The Board advises that, in the case of patient appeals, both the patient and their doctor must agree to the hearing being rescheduled. However, the Board does not request that documentary evidence be provided to substantiate that the patient has consented to the rescheduling.

5.46 A total of 846 initial reviews were affected by adjournments in 2001, adding an average delay of 18.3 days to complete these hearings. In relation to annual reviews, 530 cases were delayed by adjournments, adding an average of 23.25 days to hearing completion. Of the 506 appeal cases heard singularly, 209 cases experienced delays due to adjournment, adding an average of 22.8 days to hearing completion.

5.47 Of all cases listed, patients having been transferred from one service location to another accounted for the most adjournments (1 033), followed by doctor absence (603), the patient not appearing (259), patients’ personal reasons (258), and 232 adjournments occurred because the doctor attending the hearing was not familiar with the patient. In 365 instances, the reason for adjournment was recorded by the Board as “other”.

Conduct of hearings

5.48 The Act requires that Board hearings be conducted informally and be bound by the rules of natural justice. During interviews with patients and their advocates, concerns were raised about the nature of Board hearings. A frequent comment was that many patients found the hearing process to be quite intimidating. This was due to sitting the 3 Board panel members behind a table, the older age of many panel members compared with the age of the patient and the absence of legal representation for about 90 per cent of patients. Interviews with 30 involuntary patients revealed that about 50 per cent felt that they had not been listened to by the Board and a similar proportion did not understand the reasons for the Board’s final decision. Each of the 30 patients interviewed reported that mental health service staff do not attempt to ensure that patients understand Board decisions. Mental health service staff report that they generally do attempt to explain matters to patients, but the patient’s illness can hamper this process.

Patient outcomes

5.49 The Board determined 5 690 cases in 2001: 6.2 per cent resulting in the patient being discharged from their involuntary status and 93.8 per cent were confirmed as meeting the criteria for continued involuntary status. The rate of discharge has remained relatively constant since 1987, and is similar for both metropolitan and regional patients. Discharge rates by patient type are shown in Table 5E.

TABLE 5E
discharge rates by patient status, 2001
(N = 5 690)

Source: Mental Health Review Board, 2002.

5.50 During 2002, patient outcomes varied considerably for patients with and without legal representation. Overall, patients with legal representation were discharged from their involuntary status 15.1 per cent of the time, while patients without representation were discharged on 4.5 per cent of occasions. Further research will be required to clarify whether the legally represented patients were less unwell than those not legally represented.

5.51 In addition to represented patients having a higher rate of discharge, patient advocates report that legal representation assists patients by ensuring that their views are put to the Board, and patients feel less intimidated by the proceedings when they are legally represented.

5.52 Discharge rates for patients who did or did not attend their own hearing is shown in Table 5F.

TABLE 5F
discharge rate by patient attendance, 2001
(N = 5 690)

Source: Mental Health Review Board, 2002.

Statement of reasons

5.53 Patients have the right to request the Board for a written statement of the reasons for its decision within 28 days of the decision having been made. Patients are advised of this right through an information brochure that is provided to them. Upon receiving a request for the reasons for its decision, the Board has 14 days to complete the statement. The Board reported that in 2000-01, the average time for completing the 153 statement requests it received was 15 days.

Further reviews

5.54 A patient who is not satisfied with a decision of the Board may lodge an appeal with the Board asking to be released from their status as an involuntary patient. In reviewing Board operations, we found that Board members are not disqualified from hearing appeals for individuals who have previously had a review or appeal against their involuntary status refused by that same Board member. Such a practice would appear to be inconsistent with the principles of natural justice and may cause some stakeholders to question the procedural fairness of hearings.

5.55 Patients can also apply to the Victorian Civil and Administrative Tribunal (VCAT) to review a Board determination. Patients may then have to wait 6 to 8 weeks for their case to be heard. In 2000-01, VCAT received 17 applications to review a Board decision; 8 of these applications were later withdrawn. Of the 9 applications that proceeded to a full hearing, in 7 cases the Board’s decision was upheld and in 2 cases the Board’s decision was set aside.

CONCLUSIONS

5.56 The Mental Health Review Board’s workload has increased by more than 600 per cent since 1987-88, while the cost per completed case has fallen from $472 in 1987-88 to $251 in 2000-01.

5.57 Currently, nearly 70 per cent of involuntary patients are released from their involuntary status without coming before the Board for a hearing. Since the Mental Health Act 1986 was introduced and amended in 1993, many mental health treatment practices have changed and the duration of inpatient treatment has fallen significantly. The implications of this are unclear for the Board’s objective of seeking to balance the needs of individuals to receive treatment, the loss of freedom that the individual experiences when they are treated involuntarily, and the interests of the community. Given the potential vulnerability of mental health patients, a review of the role of the Board and the scheduling of reviews and appeals appears warranted.

5.58 Under the Mental Health Act 1986 the Board is required to review all involuntary patients within 8 weeks of their admission, hear appeals from patients who wish to be discharged from their involuntary status, review all involuntary patients at least every 12 months and review every decision to extend a community treatment order. The audit found that the vast majority of these reviews and appeals are being scheduled for hearing in a manner consistent with legislative time frames.

5.59 While the Board is fulfilling its legislative requirements to conduct reviews and appeals, there is opportunity to further improve the administration of hearing processes. In particular:

• Patients can feel confused, powerless and intimidated by Board processes. This is particularly so for patients who are unrepresented, suffering from the effects of their illness or, at times, the negative side effects of their medication. Fifty per cent of the patients interviewed felt that they had not been listened to by the Board and a similar proportion did not understand the reasons for the Board’s final decision. This is despite the efforts of the Board to provide patients with information about their rights, and to conduct hearings in an informal manner;

• A significant proportion of the patients interviewed reported being unaware of their rights, including their right to access information, their right of appeal and their right to be legally represented. Of those patients who were aware of their right to information, a common source of complaint concerned difficulties they experienced in gaining access to their own medical file and to the doctor’s report for the Board;

• In 2001, some 38 per cent of patients did not attend their own Board hearing. This may be the result of patients being in agreement with their involuntary status, the severity of their illness at that time (and associated lack of awareness), or it may reflect a lack of confidence in Board processes. Further research will be required to identify the causes of patient non-attendance and appropriate strategies to address this; and

• A significant proportion of cases are either rescheduled or adjourned prior to being heard by the Board. This causes delays in the completion of hearings, unnecessarily disrupts the work of Area Mental Health Services’ staff and may potentially disadvantage patients.

RECOMMENDATIONS

5.60 When the Mental Health Act 1986 is next reviewed, provisions in relation to the Mental Health Review Board should be assessed in light of the significant changes to treatment practices that have occurred since the Act was first introduced.

5.61 The Board, the Department of Human Services and Area Mental Health Services (AHMSs) should ensure that:

• Involuntary patients are given the support and assistance necessary to enable them to participate effectively during Board hearings;

• Involuntary patients are made aware of their rights, and that service staff protect these rights. This requires the ongoing education of both involuntary patients and service providers beyond the use of posters and brochures, and the implementation of appropriate monitoring and complaints mechanisms; and

• Research is undertaken to identify why a significant proportion of involuntary patients do not attend Board hearings, and action is taken to increase attendance.

5.62 The Board and AHMSs should take action to reduce the number of cases that are rescheduled or adjourned prior to being heard. In particular, the number of cases deferred as a result of doctors being unable to attend hearings, doctors attending hearings but not being familiar with the patient, and patients being transferred between service locations.

REPONSE provided by Department of Human Services

Para. 5.14

The Audit finding of the increased efficiency of the Mental Health Review Board is welcome.

Para. 5.60

DHS will consider the recommendation.

Para. 5.61

Patients not attending and participating in hearings is a typical pattern, which DHS understands has not changed over time.

The Department and the Board have made a significant commitment to ensuring that patients are able to participate effectively during Board hearings and that they are aware of their rights. These measures go beyond the use of posters and brochures and monitoring and complaints mechanisms. It is a legislative requirement of the Act that upon admission, involuntary patients are provided with a printed statement advising them about their legal rights including the right to obtain legal representation (s.18). These brochures are printed by the Department in a number of different languages. The Department also funds a telephone advice line to enable patients to hear a recording of these brochures in English and other languages. In addition, Services are required by section 18 to give patients an oral explanation of this information and to ensure that this information is conveyed in terms which the patient is most likely to understand.

In addition to these requirements, the Department funds the Mental Health Legal Centre to provide advice, legal representation and community education to patients. The Department has increased the funding of the Mental Health Legal Centre to provide a 1800 number for rural callers and to pilot a project aimed at increasing the level of legal representation of patients before the Board in rural areas. Significantly, the State also funds Victoria Legal Aid to provide a visiting advice service to metropolitan hospitals for involuntary patients.

Para. 5.62

Proposed improvements to improve the administration of hearing processes within current legislative requirements will be discussed with the Mental Health Review Board.

The Department will discuss the issue of rescheduling of cases with AMHSs and the Mental Health Review Board.

RESPONSE provided by Mental Health Review Board of Victoria

Para. 5.11

The Board currently services 44 venues throughout Victoria on a regular basis. Of these, 34 are visited fortnightly, 6 four-weekly, and the balance as required. Regularity of visits is based on a 6 monthly assessment of demand, taking into account budgetary and resource implications. The fortnightly roster, reviewed and prepared on a 6 monthly basis, provides for a predictable and comprehensive program designed to meet the needs of the Board’s stakeholders, members and staff.

Paras 5.21 to 5.24

The Board has no input into the extent or distribution of the service provision of legal aid organisations in relation to the Board’s client group. This is entirely dependent on their own budgetary and resource considerations.

RESPONSE provided by Mental Health Review Board of Victoria - continued

It is not appropriate for the Board to express a view about the issue of increased levels of legal representation of patients before the Board. However, if government were to decide that this would be desirable, consideration would have to be given not only to the budgets of the legal services, but also to its impact on the Board’s caseload, finances and member resources, as such a decision would have significant implications for the scheduling and hearing processes of the Board.

Para. 5.26

Members of the Board are constantly aware of the necessity of conducting hearings in a manner appropriate to the important legal decisions they make affecting the liberty and lives of the patients about whom the hearings are required by law. At the same time, Board members are mindful of the potential for hearings to be a confusing and intimidating experience. As a result, over the years, the Board has attempted to develop hearings processes, which are, as far as reasonably practicable, flexible, informal and user-friendly.

Recently, more emphasis has been placed on induction and training of members around the notion of "therapeutic jurisprudence", which emphasises the efforts of members in attempting to achieve pro-therapeutic outcomes for hearings, irrespective of the formal determination of the Board. The Board will continue to give prominence to continuing education of members around best practice in hearings processes, procedures and practices.

Paras 5.36 to 5.38

The Board’s listing process is entirely reliant on receiving weekly reports generated by the Department of Human Services’ Statewide data system called RAPID. Patients whose involuntary status has been removed within 14 days of admission do not appear on the departmental reports and, therefore, cannot currently be listed by the Board for initial review hearings.

The Board acknowledges perceived changes in the nature of the Board’s role in protecting patients’ rights in the context of significant changes in the provision of treatment and care by mental health services, especially shorter inpatient admissions and increasing use of community treatment orders. It is a matter for government as to whether the review process and/or Board’s role should change.

Paras 5.46 to 5.47

The Board regularly monitors trends in its hearing processes and reviews the rates of rescheduling and adjournments in an attempt to minimise any detrimental impact on its stakeholders. It also reinforces to the mental health services the importance of reducing the incidence of rescheduling and adjournments.

In doing this, the Board is always mindful of the pressure and workload of staff at mental health services. However, unlike courts, the Board is limited in the realistic sanctions available to it to enforce reasonable compliance by autonomous mental health services with its efforts to minimise unnecessary rescheduling and adjournments.

Para. 5.50

The Board agrees that research into the apparent causal connection between representation and discharge rates may be useful. Irrespective of this, it is the Board’s view that, in the Board’s non-adversarial jurisdiction, statistics about outcomes (in terms of detention/discharge) are generally unhelpful.

The Board agrees that potentially there are many benefits to patients deriving from legal representation at Board hearings. It is a matter for the government to decide whether legal representation of patients should be mandated at a higher level.

RESPONSE provided by Mental Health Review Board of Victoria - continued

Para. 5.54

The Board can understand the lay view that members should be automatically disqualified from hearing appeals in relation to patients about whom they have been involved in previous decision-making. The Board, however, disagrees that its current practice is in any way inconsistent with the principles of natural justice, as apprehension of bias, as a legal concept, requires more than the mere fact that the personnel of a division is the same on more than one occasion.

Repetition of appeals relating to the same patient is relatively uncommon. Aware of possible patient perceptions, and adopting a cautious approach, the President has already developed a practice to deal with such situations, generally precluding the same 3 Board members from being involved together in decision-making about the same patient on more than 2 occasions over a short time period.

Para. 5.60

The Board acknowledges the significant changes, which have occurred in mental health treatment practices and the duration of inpatient treatment since the commencement of the Board in October 1987. It is not appropriate for the Board to comment on matters of government policy in relation to the role of the Board and the scheduling of reviews and appeals. However, the Board reiterates that changes in these areas will have significant financial and resource implications for the Board, which must be taken into account if the suggested review is implemented.

Para. 5.61

The Board is keen to provide support and assistance to involuntary patients to assist their participation during Board hearings. The extent to which it is able to achieve this involves an important balance (and often overlooked distinction) between the obligations of the organisation as a statutory authority (that is, the Board as an administrative entity) providing government services and each separate division of Board members acting as an independent decision-maker in reviewing individual cases.

¹ “Review” in most other States is the Board/Tribunal hearing applications for the renewal of orders for involuntary treatment.