Getting ready for a Mental Health Review Board hearing

October 2013

Information about involuntary treatment orders and Mental Health Review Board hearings.

With worksheets to help you:

  • get ready for a hearing
  • present your case at a hearing.

The government is changing mental health laws.This will happen in 2014.

Do you need this booklet in a different format?

Please ring us on 9269 0223 so we can talk with you about what you need.

Produced by Victoria Legal Aid

Victoria Legal Aid

350 Queen Street

Melbourne 3000

For help with legal problems, call Legal Help on 1300 792 387

For business queries, call 9269 0234

First edition 2013

Acknowledgments: Thank-you to the contributions and feedback from the Victorian Mental Illness Awareness Council andthe Mental Health Review Board in developing this first edition.

© 2013 Victoria Legal Aid. Please contact us if you would like to re-use any of this publication in your own publications or websites.

Email CLE()

Disclaimer: The material in this publication is a general guide only. It is not legal advice. If you need to, please get legal advice about your ownparticular situation.

Changes to the law

The law changes all the time. To check for changes you can:

  • call Victoria Legal Aid’s Legal Help phone line on 1300 792 387
  • visit Victoria Legal Aid’s website atVictoria Legal Aid(
  • contact a community legal centre. Call the Federation of Community Legal Centres on 9652 1500 to find your nearest community legal centre.

ISBN 978 1 921949 07 4

Contents

What do these words mean?

What is the Mental Health Review Board?

What are hearings

What is a treatment plan?

How do I get ready for my hearing?

Worksheets

Where to get help

About this booklet

Who is this booklet for?

This booklet is for people on involuntary treatment orders who are getting ready for a Mental Health Review Board hearing. This booklet may also be helpful to any family, friends, support workers or advocates helping someone get ready for a Mental Health Review Board hearing.

What this booklet covers

We explain about what hearings are and how to get ready for them.

We also have worksheets at the back of the booklet. We have one worksheet for each criterion. In the worksheet we explain the criterion and what the board might ask you. Use these worksheets to write down what you want to say to the board in your hearing. Use extra paper if you need more room.

We also have a worksheet about community treatment orders and one about treatment plans. You can take these worksheets and your notes with you to the hearing.

Getting more help

We list the names of organisations that canprovide you with legal advice and other supportin the ‘Where to get help’ section on page 18.

What do these words mean?

In every chapter of this booklet we highlightlegal words in bold when they first appear.The definitions for these words are below.

advocate– someone who helps other peopleto stand up for their rights. They can be a lawyeror paralegal but they can also be a friend, familymember or support worker

appeal – challenge a court or board’s decisionappeal hearing – the process for making anappeal is called an appeal hearing

community treatment order – a type ofinvoluntary treatment order that allows aperson to live in the community while receivingtreatment for a mental illness

confirm – when the Mental Health Review Boarddecides to keep you on your order

criteria for involuntary treatment –legal requirements for decision-making

criterion for involuntary treatment – a legalrequirement for decision-making

discharge – to be taken off an involuntarytreatment order

involuntary patient – a person on an involuntarytreatment order

involuntary inpatient – a person on aninvoluntary treatment order who is receivingtreatment in a hospital (rather than on acommunity treatment order)

involuntary treatment order – a legal documentthat allows a hospital or mental health clinic togive a person treatment for a mental illness, evenif they do not want the treatment

treatment plan – a document setting out whattreatment you will receive from the treating teamwhile you are an involuntary patient. You havea right to be involved in developing yourtreatment plan

What is the Mental Health Review Board?

The Mental Health Review Board (the board) is an independent decision-maker. It is not a part of the hospital or clinic where you receive treatment. The board is made up of board members and other people who work in the board’s office. The board reviews and hears appeals about involuntary treatment orders, community treatment orders and treatment plans.

What are hearings

A hearing is an official meeting to talk about yourinvoluntary treatment order. Legal decisions aremade in hearings.

Why do hearings happen?

The board makes these legal decisions at a hearing.

A hearing is a chance for them to:

  • hear from you
  • look at all the information.

What types of hearings are there?

There are two types of hearings:

  • appeal hearing – this is a hearing that you can askfor at any time if you want the board tochange or cancel your order
  • review hearing – this is a hearing that the boardorganises automatically.

Where do hearings happen?

The board comes to your hospital or clinic andruns the hearing in a meeting room there.

When do hearings happen?

The board holds hearings on different days, usually every two weeks.

Review hearings happen automatically withineight weeks of you being made an involuntary patient, and then again each year after that.

If you have asked for an appeal hearing, it willusually happen within two weeks.

On the day, you may have to wait a while for your hearing tostart. A number of hearings will happen on thesame day. The hospital or clinic staff will let you know when it is time for your hearing. There is noset length of time for each hearing.

Who is at the hearing?

You

You do not have to go to the hearing, but goingmeans you can ask questions and tell the boardyour story. You can also tell the board what youthink about being on the involuntary treatmentorder or the community treatment order.If you do not go, the board might confirm yourorder and not discharge you. You should let theboard know if you do not want to attend thehearing.

The board members

There will usually be three board members:

  • a lawyer
  • a psychiatrist (this cannot be anyone treatingyou or working for your hospital or clinic), and
  • a community member.

The treating team

The doctor who is treating you will usually be there.Your nurse or case worker may also be there.

Lawyers and advocates

You can bring a lawyer or advocate to yourhearing. A lawyer could be a Victoria Legal Aidlawyer, a lawyer from a community legal centre or a private lawyer.

A private lawyer will usually cost money.

Victoria Legal Aid lawyers are free but theycannot come with everyone to their hearings.Talk to them before your hearing about whether they can help you.They usually visit hospitals every twoweeks, before the hearings. You can also callour Legal Help phone line on 1300 792 387.

Family members and friends

You can choose to bring other people.

You can ask a friend or family member to cometo give evidence for you.

If you do not want family members or otherpeople to be there, make sure you tell the boardat the start of the hearing.

Is the hearing private?

Yes. Members of the public cannot sit in andlisten. The board members and everyone atthe hearing should not tell anyone else whathappened at your hearing.

What rights do I have at a hearing?

The board must:

  • conduct the hearing fairly
  • consider human rights when making decisions.

You have the right to:

  • see your file and all the documents that will be shown to the board. You have the right to see these things before your hearing
  • you also have the right to speak to a lawyer before the hearing.

If you were not able to do any of these things, tell the board at the hearing.

What happens at a hearing?

The five criteria

The hearing will focus on the five criteria for involuntary treatment. These criteria come from the mental health laws.

The five criteria are:

  1. you appear to be mentally ill
  2. your mental illness needs treatment straight away and you can get that treatment if you are kept on an involuntary treatment order
  3. the order is necessary to stop your physical or mental health getting worse or to keep other people safe
  4. you said no to treatment that is necessary for your mental illness or are not well enough to agree to that treatment
  5. 5. you cannot receive adequate treatment for your mental illness in a way that would give you more freedom.

These criteria are explained more in the worksheets. See page 10.

What information will the board consider?

The board will:

  • read the Report on Involuntary Status
  • read your file
  • read your treatment plan
  • ask the doctor why they think you needto remain an involuntary patient
  • ask you (or your lawyer or advocate)questions about what you want. They willlisten to what you and your witnesses sayand will look at any other information youask them to.

What is the Report on Involuntary Status?

Your doctor will write a Report on Involuntary Status before each hearing.

It outlines:

  • how you came to be in hospital
  • your diagnosis
  • the treatment that you are being given
  • the treatment that the doctor plans to give you in the future.

In the Report on Involuntary Status your doctorwill have said why they think you meet thecriteria for involuntary treatment and why youneed to receive treatment. That is, why you areon an involuntary treatment order.

What is in your file?

Your file has:

  • all the notes that the nurses and doctors makeabout you each day while you are receivingtreatment in hospital
  • all the notes your case managers and doctorsat the clinic make
  • other documents like risk assessmentsand reports
  • any other documents to do with yourinvoluntary treatment.

What can the board decide atthe hearing?

The board can:

  • decide that you meet the criteria forinvoluntary treatment and confirm yourinvoluntary treatment order or communitytreatment order
  • if you are already on an involuntary treatmentorder, decide you meet the criteria forinvoluntary treatment but that you canreceive that treatment in the community. Theboard can then make a community treatmentorder or order your doctor to make one in areasonable time
  • decide you do not meet the criteria forinvoluntary treatment and discharge youfrom your involuntary treatment order orcommunity treatment order
  • order the treating team to revise yourtreatment plan.

You can read more about treatment planson page 8.

The board can only keep you on the involuntary treatment order if they decide that you meet all five criteria for an involuntary treatment order.

If you do not want to be an involuntary patient, you must show the board that you do not meet at least one of the criteria.

If the board agrees that you do not meet one or more of the criteria, they must discharge you from your involuntary treatment order.

What can't the board decide?

The board cannot:

  • decide that the doctor gave you thewrong diagnosis
  • change your medication or treatment,including electroconvulsive therapy (ECT)
  • give you compensation money or punishthe doctor if you are unhappy about the wayyou have been treated
  • give you leave from the hospital.

Will the board put me onto acommunity treatment order?

Do you need to be an inpatient to receive treatment?

If the board finds that you meet all the criteriafor involuntary treatment, the board will ask youquestions about whether you need to get yourtreatment as an inpatient in the hospital or if youcan receive that treatment under a communitytreatment order. The worksheet on page 15 canhelp you think through how you would answerthe board if they ask these questions.

What happens if I am on a communitytreatment order?

You are still an involuntary patient and you stillhave to accept the treatment the doctor thinksyou need. However, you can live in the communitywhile you receive that treatment. You may live atyour own place or with family or friends. You maylive in a supported residential service (SRS) or ina community care unit (CCU). The staff in these places can helpcheck with how you are going.

What happens to my treatment on a community treatment order?

Under a community treatment order, yourtreatment would be supervised by a communitymental health clinic. You will have to go to regular appointments at the clinic for themto monitor your mental health and adjust thetreatment. You may also have to accept homevisits for them to supervise your medication.

You may want to be discharged a voluntarypatient rather than on a community treatmentorder, but you should prepare the worksheet onpage 15 just in case the board does not agreewith your earlier arguments.

What if I am not happy with theboard’s decision?

You should speak to a lawyer before doingany of these things below.

Ask for the written Statement of Reasons

Write to the board and ask for the written‘Statement of Reasons’. This document explainswhy the board made their decision. You mustsend your letter to the board within 28 days ofthe decision. They should give you the statementwithin two weeks.

Ask for another hearing

You can appeal to the board at any time and haveanother appeal hearing. You can do this as many timesas you need to.

Appeal to VCAT

You can apply to the Victorian Civil andAdministrative Tribunal and have a hearing there.

What is a treatment plan?

What goes into a treatment plan?

Your doctor must prepare a treatment plan for you. The treatment plan must:

  • set out the treatment you will get
  • say who will monitor and supervise your treatment
  • say who your case manager is (if you have one)
  • say where you will receive the treatment
  • say when you have to get treatment (if you are on a community treatment order)
  • say how often the doctor supervising your treatment must write a report to the psychiatrist monitoring your treatment.

You should be given the best possible treatment and care that you need, in the way that is the least restrictive and intrusive in your life. The treatment should interfere with your rights, privacy, dignity and self-respect as little as possible. If it is possible, you should be treated in the community.

If the board confirms your involuntary treatment plan, the board must then review your treatment plan. See the worksheet on page 16 for more information.

Does the board review treatment plans at the hearing?

At every hearing about involuntary treatment, the board must review the treatment plan that the doctor has made. The board will check if the doctor has complied with the law for making a treatment plan.

The law says that the doctor must consult you in making the treatment plan, and take into account your wishes in deciding on the treatment.

If you are unhappy with the way your treatment plan was prepared, you should tell the board.

The worksheet on page 16 can help you answer questions the board may ask about your treatment plan.

How do I get ready for my hearing?

Date and time of your hearing

Have you got a letter from the board aboutwhen your hearing is?

Write down the details here.

Date:

Time:

Medical treatment

Here are some questions to help you thinkabout your treatment. Are you happy to stay inthe hospital as an involuntary patient? Are youhappy with the treatment your doctor is givingyou? Are you happy to receive treatment undera community treatment order? Can you makedecisions about your health? What do youwant changed?

The five criteria

Remember, at the hearing the board willdecide whether you meet all five criteria for aninvoluntary treatment order. If you want to bedischarged, you need to show that you do notmeet one or more of the five criteria.

Use the worksheets on pages 10 to 17 to work out what you want to say about each criterion at the hearing.

Your file and report

Remember, the board will read your file and the Report on Involuntary Status. You have the right to see these documents too, at least 24 hours before the hearing.

Your doctor should give you your report at least 24 hours before the hearing and explain it to you.If you want to read your file, ask the staff at yourhospital or clinic to see it.

If you do not get to read your report and fileat least 24 hours before your hearing, the boardcan delay the hearing so you have more timeto prepare.