Last updated 31 January 2018
The Mental Health Review Tribunal consists of a full-time president, who must be an experienced lawyer, a deputy president (also an experienced lawyer) and other members appointed on a full-time or part-time basis.
To be a member, a person must be a lawyer or a psychiatrist, or possess other qualifications and experience considered by the Minister for Health to be relevant to exercising the tribunal’s jurisdiction.
In appointing members, the Minister for Health must take into account the need for balanced gender representation, the range and experience of members of the tribunal and the need for the membership of the tribunal to reflect the social and cultural diversity of the general community.
Constitution of the tribunal
For most hearings, the Mental Health Review Tribunal is constituted of three to five members, one of whom must be a lawyer, one of whom must be a psychiatrist (or another doctor if a psychiatrist is not readily available), and one of whom must be neither a lawyer nor a doctor (s 716 Mental Health Act 2016 (Qld) (Mental Health Act)). In some cases, the president can authorise hearings by less than three members (s 716(3) Mental Health Act).
For the hearing of an application for approval to perform a non-ablative neurosurgical procedure, the tribunal must be constituted of five members including an experienced lawyer, two psychiatrists, a neurosurgeon and a person who is neither a lawyer nor a doctor (s 718 Mental Health Act).
The Mental Health Review Tribunal has the jurisdiction to (s 705 Mental Health Act):
- review treatment authorities, forensic orders and treatment support orders
- review the fitness for trial of people who have been found by the Mental Health Court to be temporarily unfit for trial
- review the detention of minors who are detained in a high security unit
- hear applications for:
- examination authorities
- approval of regulated treatment
- approval of transfers of particular patients into and out of Queensland
- decide appeals against various decisions by the chief psychiatrist
- decide appeals against a decision by the administrator of an authorised mental health service to refuse to allow a person to visit a patient (if the administrator is satisfied that it would adversely affect the patient’s treatment and care).
Attendance and legal representation at hearings
The Mental Health Act sets out who can appear at hearings of the tribunal (s 739).
There is provision for legal representation or, with the leave of the tribunal, representation by an agent. The tribunal can also appoint someone to represent the views, wishes and interests of patients who are unrepresented (s 740 Mental Health Act).
Also, the tribunal must appoint a lawyer to represent the patient if (s 740(3) Mental Health Act):
- the patient is a minor
- the hearing is a review of the person’s fitness for trial
- the hearing is of an application to perform electroconvulsive therapy
- the Attorney-General is appearing or being represented.
Procedure and rules of fairness
The tribunal must exercise its jurisdiction in a way that is fair, just, economical, informal and timely (s 733 Mental Health Act). At a hearing, the tribunal must:
- observe natural justice
- act as quickly and with as little formality and technicality as is consistent with a fair and proper consideration of the issues.
The tribunal is not bound by the rules of evidence.
Parties must be given a reasonable opportunity to present their case and in particular to inspect documents being considered by the tribunal, unless there is a confidentiality order in place (s 734 Mental Health Act). Hearings are not usually open to the public (s 741 Mental Health Act).