The Law Handbook 2024

Chapter 8.4: Mental illness 835 A number of people, including the psychiatrist and the person’s nominated support person, are given notice of the hearing and may also appear (s 371). The MHT has powers to issue summons for witnesses. Knowingly giving false or misleading information (s 387) and contempt of the MHT (s 388) are offences. Hearings may be adjourned but cannot be adjourned to a date after the expiration of an order unless the MHT is satisfied that exceptional circumstances exist (s 374). In such a case the MHT can extend the duration of the order (TTO or TO) for no more than 10 business days. Access to documents The MHWA contains strong provisions for accessing information. The designated mental health service must give a person access to any documents it has in connection with a proceeding at least two business days before the hearing (s 373). In Practice Note 4 (see www.mht.vic.gov.au) , the MHT sets out what documents are considered to be ‘in connection with the proceeding’. The relevant hearing report, the current treatment order, and specified documents on the current volume of the patient’s clinical file and other general documents. This right of access is separate from rights that exist under the Freedom of Information Act 1982 (Cth). An application can be made to the MHT by the authorised psychiatrist to deny the person who is the subject of a hearing access to information on the file, but only if they think that disclosure may cause serious harm to the person or someone else (s 373(2)). When deciding the application, the MHT must also consider issues of procedural fairness. If the MHT finds the test satisfied, it then may deny disclosure to the person and proceed with the hearing and consider the non-disclosure information itself, however it must do so consistently with the principle of autonomy and dignity outlined in the mental health and wellbeing principles. Right to Statement of Reasons and review of Mental Health Tribunal decisions A party to the proceeding before the MHT may request a written statement of reasons for the decision of the MHT (s 380). The request must be in writing, and must be received by the MHT within 20 business days after the MHT’s determination, though the MHT has discretion to accept later requests. If a person disagrees with the MHT’s decision, they can apply to the Victorian Civil and Administrative Tribunal ( VCAT ) for a review of the MHT’s determination (s 383). An application must be made within 20 business days of the later of the following: a the MHT’s determination; or b receipt of the statement of reasons if requested. Applications made out of time can be considered if there are special circumstances. A person can always lodge a further application for revocation of a TO at the MHT. However, there is no right to apply to the MHT for revocation of an order authorising ECT. Reviews can also be sought on a question of law, including questions of law involving the application or interpretation of the Human Rights Charter. For the applicable time limits, see ‘Charter of Human Rights and Responsibilities Act’, below. Restrictive interventions The MHWA explicitly states that mental health and wellbeing service providers and persons who perform functions and exercise powers under the Act should aim to reduce the use of restrictive interventions and eventually eliminate the use of restrictive interventions in mental health treatment (s 125). The decision-making principles are key to the authorisation of restrictive interventions, specifically the principles that there is no therapeutic benefit to restrictive interventions (s 81) and a balancing of harm must be considered (s 82). A person authorising a restrictive intervention must give proper consideration to the decision- making principles. There are only two permitted purposes for the use of restrictive intervention. They are to prevent imminent and serious harm to that person or another person, and, in the case of bodily restraint, to administer treatment or medical treatment to the person (s 127). Part 3.7 sets out general principles for the use of restrictive interventions, including that they may only be used after all reasonable and less restrictive