Ensuring Meaningful Participation in Fair Mental Health Tribunal Hearings: The Critical Role of Legal Representatives

Fleur Beaupert1, Eleanore Fritze2

1 La Trobe Law School, La Trobe University, Kingsbury Drive Bundoora, Melbourne 3086 VIC, f.beaupert@latrobe.edu.au

2 Victoria Legal Aid, GPO Box 4380, Melbourne 3001, VIC, eleanore.fritze@vla.vic.gov.au

Mental health tribunals (MHTs) (or their equivalent) in each state and territory conduct hearings to determine whether people should receive forced mental health treatment through orders mandating either inpatient detention or compliance with a treatment regime in a community setting. MHT hearings embody certain aspects of ‘non-adversarial’ justice. While MHTs are bound by the rules of procedural fairness, they are not bound by the rules of evidence and are required to conduct their multi-disciplinary, quasi-inquisitorial hearings in an informal manner without undue technicality.

Legal representation for people subject to compulsory treatment is typically considered unnecessary by those administering the regimes because MHTs are seen as accessible, patient-centred and well-equipped to balance the range of interests at play. Some commentary has in fact suggested that lawyers may be detrimental to the process because of concerns they are overly adversarial, disrupt therapeutic relationships and can work against their clients’ ‘best interests’ by losing sight of health imperatives. Rates of legal representation at Australian MHT hearings, although varying between jurisdictions, are generally markedly low.

This paper draws on our experience of providing legal representation before the MHTs in NSW and Victoria, as well as current research into the impact of legal representation in this forum and – importantly – the views of people subject to compulsory treatment. As well as debunking some of the myths about the role of mental health lawyers, we argue that lawyers significantly enhance the fairness of hearings and the ability of patients to meaningfully participate in the process. By amplifying the individual’s voice and translating their wishes into legally recognised concepts, lawyers can engage in advocacy that is rigorous but nonetheless consistent with non-adversarial justice practices. This paper therefore supports the call for increased funding for legal representation at MHT hearings across Australia.

Biography:

Eleanore Fritze is a Melbourne-based lawyer who has worked in various roles at Victoria Legal Aid (VLA) for the last 11 years. She has a longstanding commitment to assisting people with disabilities to access and meaningfully participate in the justice system. In 2010, she was the inaugural duty lawyer in the ‘Assessment and Referral Court List’, a pilot therapeutic criminal court for people with various disabilities and complex needs. She is currently a senior lawyer in VLA’s Mental Health and Disability Law (MHDL) program, where she advises and advocates before courts and tribunals on behalf of people who are subject to detention, supervision, compulsory treatment or other orders restricting their rights under

Victoria’s mental health and disability laws. In addition, she regularly conducts training for lawyers, designs innovative community legal education projects and presents at conferences and events. In 2015, Eleanore undertook an international Churchill fellowship to explore how legal services can best protect the rights of people with disabilities who have been detained for compulsory treatment. She has previously worked as a personal carer and has also completed post‑graduate disability studies.

Fleur Beaupert is a lecturer at La Trobe Law School. Her current research focuses on civil mental health laws, legal capacity and the supervision and release of people found not guilty by reason of mental impairment. She was a doctoral candidate and researcher for an Australian Research Council funded project comparing the operation of Australian mental health tribunals. She has worked as a lawyer with NSW Legal Aid’s Mental Health Advocacy Service, providing legal advice and representation to people facing legal issues under mental health laws. Fleur is co-editor of a special issue of Law in Context, ‘Disability, Rights and Law Reform in Australia – Recent Trends’ (forthcoming 2017 – with Piers Gooding and Linda Steele).

In her previous role as senior research analyst with the NSW Ombudsman’s Police Team, she worked on legislative reviews of new police powers. She led the NSW Ombudsman’s review of search powers and offence provisions in the Restricted Premises Act 1943 (NSW).

About the Association

The Australasian Institute of Judicial Administration (AIJA) is a research and educational institute associated with Monash University. It is funded by the Law, Crime and Community Safety Council (LCCSC) and also from subscription income from its membership.

The principal objectives of the Institute include research into judicial administration and the development and conduct of educational programmes for judicial officers, court administrators and members of the legal profession in relation to court administration and judicial systems.

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