Mental Health Tribunal
Our firm has the unique experience of appearing before the Mental Health Tribunal on behalf of clients who are subject to orders as a result of suffering from a severe mental illness. Whilst initially, orders by the Tribunal may be necessary to facilitate appropriate treatment and intervention to people, they can also be terribly invasive, confusing and distressing to the people subject to them and their families. They also, often, run side by side with criminal proceedings, where a very unwell accused person is charged with offences committed whilst unwell, which must also be considered in the context of the mental impairment defence and the proceedings before the criminal courts.
Representing people who have suffered acute episodes of mental illness is challenging work and involves liaising with the client, family, medical professionals, Victoria Police members, prosecutors, Court Staff, social workers and the Tribunal itself. Our lawyers have the resources and knowledge to guide our clients through the process. We also take the most compassionate approach to our clients. We visit our clients in psychiatric ward to give legal advice and check on their welfare. We liaise with their psychiatrists and with their psychiatric nurses to supervise their progress.
Where a person is acutely unwell, and likely to be a harm to themselves or others, they may be admitted to hospital and subjected to an temporary treatment order. This can be very distressing, as they are held in the secure psychiatric unit with other very unwell people, being treated involuntarily by the medical staff there. This can include anti-psychotic injections and oral medication. An authorised psychiatrist can make a temporary treatment order to provide compulsory treatment to a patient, which may include involuntary admission or to be treated in the community. An authorised psychiatrist can only make such an order it the patient before them:
- Has a mental illness;
- Because of that mental illness, the person needs immediate treatment to prevent:
- Serious deterioration in the person’s mental or physical health; or
- Serious harm to the person or another person.
- There is no less restrictive means reasonably available to enable the person to be immediately treated.
In making this assessment, the authorised psychiatrist must have regard to the patient’s views and preferences, as well as those of their nominated person, guardian, carer or parent. A TTO lasts for 28 days unless it is revoked earlier. At its expiry, or before, the Mental Health Tribunal will usually convene and make a decision as to whether in hospital treatment is further required, whether a Community Treatment Order is required or whether any treatment order at all is required. Importantly, a variation of the TTO does not affect the duration of it and it must be immediately revoked as soon as the treatment criteria no longer apply. This is terribly important. If there is a less restrictive means available to the patient (ie with their own private psychiatrist or in the community), then the treatment criteria for a hospital based treatment order do not apply. On occasion, psychiatrists may recommend further hospital based treatment and this can be confused with an opinion that no less restrictive means are available.
Accordingly, often effective advocacy is required to understand the opinion and to ensure that the patient’s rights are maintained and enhanced. This may mean advocating for a Community Treatment Order, where a mental health service attends upon a client at home or private treatment through a Psychiatrist that the client trusts.
Mental Impairment Defences
In both the summary and indictable streams, mental impairment is a defence to criminal offending but must be supported by compelling medical material. In some cases, our firm has had matters completely withdrawn by Police and Prosecution because it was accepted that mental impairment was made out. In other cases, the matter needs to be decided by a Magistrate or, in the higher jurisdictions, before a jury or judge alone. COVID 19 has also changed the criminal justice environment, as well as being a health crisis that has adversely affected the mental health of many, most of all those with acute and ongoing conditions. If you or a loved one has been charged with offences and you are concerned that mental impairment may be a defence, please contact our office to consult with one of our experienced and compassionate criminal defence lawyers.