Chapter 4: The Mental Health Review Tribunal
What does the MHRT deal with?
MHRT hearings
Hiring a lawyer
At the hearing
MHRT Functions
The Mental Health Review Tribunal (MHRT) plays an important role in care and management of people with a mental illness. The MHRT has wide powers and is involved in making and reviewing orders about treatment of people with a mental illness.
It is the role of the MHRT to hold hearing to inquire into issues relating to people with a mental illness. It takes evidence and collects any relevant information from medical and non-medical staff and from the patient and their relatives and friends. The patient’s legal representative can question any of the evidence put before the MHRT.
The MHRT reaches its own conclusions after assessing all the information before it. It also uses expertise from its own panel members when making decisions.
The MHRT has three full-time and approximately one hundred part-time members. When it conducts hearings it is made up of three people: a lawyer, a psychiatrist and another person experienced in mental health. The MHRT has more than one panel, so if someone has to see the MHRT on more than one occasion, they may deal with different people each time. The MHRT travels to hospitals and community health centres to hold hearings. It also conducts some hearings by telephone or video.
What does the MHRT deal with?
The MHRT deals with:
- The extension (or not) of temporary orders made by a magistrate;
- The extension (or not) of temporary orders made by the MHRT;
- Appeals by a patient or their relatives for discharge from hospital;
- The six-monthly review of the case of Continued Treatment Patients;
- The yearly case review of long-term Informal Patients;
- Making, varying and revoking Community Treatment Orders and Community Counseling Orders;
- Requests by hospitals for permission to give electro-convulsive therapy to involuntary patients;
- Requests by hospitals for permission for surgery (not psychosurgery) on involuntary patients who are not consenting to the surgery, or are unable to consent because of their mental state;
- Regular reviews of the case of Forensic Patients (at least six-monthly); and
- Making and revoking of Protected Estates Orders.
MHRT hearings
If someone has to appear before the MHRT for any of the reasons listed above, the hospital or community health centre will contact the MHRT and organise the hearing. They will make sure the person knows when the hearing is being held.
Hearings are held in the hospitals where there are psychiatric wards or psychiatric inpatient units. Hearings can also be heard at certain community health centres and also via telephone or video conference calls. If the person is in hospital, the social worker will usually contact family or friends, unless the person objects.
People can also contact the MHRT directly. For example, if they live in the community and wish to have a Protected Estate Order revoked or a Community Treatment Order varied or revoked, they may contact the MHRT directly or they may ask their case manager to do so.
When the person goes to a hearing, the lawyer-member of the MHRT will be the chairperson. First the lawyer-member will introduce everyone in the room and explain what the hearing is about. Witnesses may include staff of the hospital and/or community health centre that the person has been involved with. The person will always be given an opportunity to have their say and to ask any questions.
Hiring a lawyer
People are entitled to have a lawyer represent them at the hearing. A lawyer will be provided free of charge by the Legal Aid Commission through the Mental Health Advocacy Service for some matters, or they may use their own lawyer at their own expense.
At the hearing
Hearings are open to the public but anyone attending a hearing must keep what they hear confidential. The hearing will be recorded by the MHRT. People are entitled to have an interpreter if they do not speak English well or are hearing impaired. They may also have friends and relatives with them.
They should be dressed in everyday clothes and they have the right to be given appropriate personal care items so they can be well presented. If they find the hearing too stressful, they may ask the chairperson for permission to leave. However, this may affect their opportunity to express their own views, which may affect their case.
MHRT Functions
Extending an order for involuntary detention
If a magistrate’s order to keep someone in hospital is about to end, the hospital may consider it in the patient’s best interest to keep them in hospital for a longer period of time. To do this, the hospital must make an application to the MHRT, similar to the one made to the magistrate. The MHRT will hear all relevant evidence and decide whether or not the order should be extended.
Appeals for discharge
If a person is an Involuntary Patient, they may at any time ask the medical superintendent to discharge them. If the superintendent refuses or fails to make a decision in three working days, the person may appeal to the MHRT. The MHRT will hear from the hospital and the patient. The MHRT will consider relevant information and make a decision either to discharge the person or keep them in hospital.
The MHRT has four options in deciding cases involving Involuntary Patients. They can:
- Make the person a Temporary Patientfor a period of up to three months;
- Make the person a Continued Treatment Patient. This means that they may be detained in hospital for an indefinite period. They must, however, be reviewed by the MHRT at least every six months;
- Discharge the person or to defer discharge for up to fourteen days; or
- Discharge the person on a Community Treatment Order.
If the person becomes a Temporary Patient or a Continued Treatment Patient, their doctor may discharge them at any time if the doctor thinks they are well, even if the MHRT’s order has not expired.
If the MHRT makes someone a Temporary Patient and they are still unwell at the end of the time, the hospital can request they stay in hospital. This request also goes to the MHRT which must either make them a Continued Treatment Patient or discharge them, with or without the requirement of community treatment.
Continued Treatment Patients
If someone is a Continued Treatment Patient, the MHRT must see them and review aspects of their care at least every six months. At this review, the MHRT may discharge them if they are well and there are other options for their care.
Informal Patients (voluntary)
If the person is an Informal Patient and has been in hospital for more than twelve months, the MHRT will review their case and make sure that they are fully aware of all aspects of their care and treatment. Such a review will take place once every twelve months.
Community Treatment Orders and Community Counselling Orders
The MHRT can make an order for a person to receive treatment in the community. The community health centre that has the duty to carry out the treatment has to present the MHRT with a Treatment Plan outlining the help they think the person needs and what help the health centre is prepared to give. The person may discuss all aspects of the case and the treatment plan with staff at the health care agency and with the MHRT.
If the person breaks a Community Treatment Order, they may be hospitalised without their consent. If an order is made and circumstances change, they may ask the MHRT to change or revoke the order.
Forensic patients
If someone is a Forensic Patient, they will be reviewed regularly by the MHRT, usually at least every six months. They are entitled to assistance from the Legal Aid Commission. Their solicitor will advise them on all matters related to review by the MHRT .
Consent to medical treatment
If someone is an Involuntary Patient, the medical superintendent of the hospital can direct whatever treatment they consider necessary, even if the person objects.
If they need to have an operation while they are an Involuntary Patient, the hospital will need to contact their nearest relative, wait 14 days and then get consent from either the MHRT or the Authorised Officer. Authorised Officers are appointed by the Director-General of the NSW Department of Health. They have a range of functions under the Mental Health Act. These include directing the transfer of patients between hospitals, approving surgical operations for patients who are incapable of giving consent, inspecting hospitals, and acting on instructions from the Director-General.
If the hospital thinks an Involuntary Patient needs electro-convulsive therapy, the MHRT will need to decide whether they should have it.
Protected Estate Orders
The MHRT has the power to make a Protected Estate Order while someone is a patient in hospital. This means the Protective Commissioner (PC) will look after their financial affairs. If the patient thinks that a Protected Estates Order should not have been made, they can appeal to the Administrative Decisions Tribunal (ADT). They will usually need to do this within 28 days of receiving written reasons for the decision from the MHRT. Written reasons for the decision are not always prepared and will need to be requested before an appeal can be made to the ADT. For more information on the functions of the PC, go to Chapter 5.
The MHRT can also revoke Protected Estate Orders if the order was made by the MHRT or a Magistrate. If someone has such an order but thinks they are able to manage their own affairs, they should contact the Office of the Protective Commissioner and discuss it with them. In some cases, the Protective Commissioner may give the person control of some or all of their own affairs. If the Protective Commissioner refuses, the person can contact the MHRT and apply to have the order revoked. To do this, they will need to fill out a form and send it to the MHRT. They will also need to provide evidence to the MHRT to show that they can now manage their own affairs. This evidence could be a report from their doctor, case manager or psychiatrist.
Outcome of the hearing
The MHRT has to inform the person of their decision as soon as they make it. They will tell the person of their decision and give them the decision in writing.
Appeal against a decision of the MHRT
People may appeal against any decision of the MHRT to the Supreme Court. Such an appeal is expensive and needs legal representation.
The Mental Health Advocacy Service cannot represent people at the Supreme Court unless they qualify for aid from the Legal Aid Commission. This involves a strict merit test for patients and a means and merit test for people other than patients.
A person will need to find a lawyer either through their health care agency or through the Law Society. The lawyer will help find out if they are eligible for legal aid.
An appeal may also be lodged with the Administrative Decisions Tribunal (ADT) against an order made by the Tribunal or a Magistrate that the estate of a person be subject to management by the Protective Commissioner. An appeal to the ADT may be made by the person to whom the order relates or any other person who was a party to the proceedings in which the order was made.