Last updated 16 August 2016 This chapter is currently under review.
The Mental Health Review Tribunal consists of a full-time president, who must be 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, psychiatrist or possess other qualifications and experience considered by the Health Minister to be relevant to exercising the tribunal’s jurisdiction.
In appointing members, the Health Minister 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.
The Mental Health Review Tribunal has the following jurisdiction:
- reviewing the application of treatment criteria for patients
- reviewing the detention of young patients in high-security units
- reviewing the mental condition of forensic patients
- reviewing the fitness for trial of:
- deciding applications for forensic patient information orders
- deciding treatment applications
- deciding applications for approval for particular patients to move out of Queensland
- deciding appeals against decisions of administrators of authorised mental health services to refuse to allow persons to visit involuntary patients in health services (s 437 Mental Health Act 2000 (Qld) (Mental Health Act)).
Constitution of tribunal hearings
For most hearings, the tribunal must be constituted by between three and five members. In some cases the president can authorise hearings by less than three members.
For the hearing of an application for approval to perform psychosurgery, it must be constituted by five members including an experienced lawyer, two psychiatrists, a neurosurgeon and a person who is neither a lawyer nor a doctor (s 447 Mental Health Act).
Legal or other representation
The Mental Health Act sets out who can appear at hearings of the tribunal. 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.
In order to help an involuntary patient represent their views, wishes and interests, the patient’s allied person or someone else granted leave by the tribunal may attend a hearing (ss 450–455 Mental Health Act).
Reports and witnesses
The tribunal can order examinations and written reports by psychiatrists or other doctors and health practitioners. It also has the power to call witnesses (s 466 Mental Health Act).
The tribunal may take into account material submitted by a person who is not a party to the proceeding, if it is satisfied that it is relevant (ss 464–465 Mental Health Act).
Procedure and rules of fairness
The tribunal must exercise its jurisdiction in a way that is fair, just, economical, informal and timely (s 438 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.
It 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 it makes a confidentiality order (s 459 Mental Health Act). Hearings are not usually open to the public (s 460 Mental Health Act).
The tribunal has the power to prohibit or restrict the disclosure of information or of the reasons for its decisions to patients, but only if it is satisfied that disclosure would:
- cause serious harm to the health of the person or patient
- put the safety of someone else at serious risk.
However, the tribunal must disclose the information to the patient’s lawyer or agent and give them written reasons (s 458 Mental Health Act).
Reviews by the tribunal
The tribunal must review the detention of a young patient in a high security unit for treatment or care within seven days after the detention starts, and afterwards at intervals of not more than three months and on an application made by or on behalf of the patient (s 194 Mental Health Act).
The tribunal must review a forensic patient’s mental condition within six months after the forensic order is made for the patient, and afterwards at intervals of not more than six months and on an application made by or on behalf of the patient or by the Director of Mental Health (s 200 Mental Health Act). If the tribunal revokes the forensic order for the patient, the patient ceases to be a forensic patient.
If the Mental Health Court has decided that a person is unfit for trial, but the unfitness for trial is not of a permanent nature, or if a finding has been made by a jury under ss 613 or 645 of the Criminal Code, the tribunal must review the person’s mental condition to decide fitness for trial:
- at least once every three months for the year starting on the day of the court’s decision or jury’s finding
- afterwards at intervals of not more than six months
- on an application by or on behalf of the person or by the Director of Mental Health (s 209 Mental Health Act).
The powers of the tribunal are set out in detail in the Mental Health Act.
Classified and forensic patient information orders
There is provision for classified patient information orders, which can be made by the Director of Mental Health and for forensic patient orders made by the Mental Health Review Tribunal.
A victim of an offence by a classified or forensic patient and others with a sufficient personal interest can apply for an order to be given information about the movement and status of the patient (s 318O Mental Health Act).
If the tribunal decides to revoke a forensic order for a person, it can also make a non-contact order to prevent the person from contacting victims or their relatives (ss 313A–313G Mental Health Act).