The right to a fair hearing before the Mental Health Review Board – what it means and how to ensure it

1. The right to a fair hearing before the Mental Health Review Board – what it means and how to ensure it Catherine Leslie Lawyer / Pro Bono Coordinator Mental Health Legal Centre

2. The right to a fair hearing before the Mental Health Review Board • Access to justice • Equality before the law • Right to fair hearing is a fundamental human right • Limitations must be strictly necessary and have minimal impairment possible UN Human Rights Committee GC 32

3. Section 24 Charter – Right to a fair hearing: • court/tribunal be competent, independent and impartial • hearing must be fair • hearing must be public unless in best interests of child or permitted by law What does it mean to have a fair hearing?

4. Plus, at international law, rights to: • equal access to, and equality before, the courts • hearing without undue delay • legal advice and representation • procedural fairness • have free assistance of interpreter where necessary What does it mean to have a fair hearing?

5. Independent and impartial decision-maker • Hearing without undue delay – expeditious • Legal representation • Procedural fairness Focus on 4 aspects to this right

6. Independence and impartiality – look at how the MHRB is made up • Are the Board Members independent from the person appearing? • Eg. If person has consulted the psychiatrist member in the past. 1. MHRB – a competent, independent and impartial tribunal?

7. Are the Board Members independent from the AMHS? • Ask – would a fair-minded and independent observer perceive that there was any real possibility of bias? • Eg. psychiatrist employed by same hospital

8. Is the MHRB independent from the executive/ government? • Eg. Should the MHRB be part of DHS – this is the same government portfolio that employs the clinicians whose decisions the Board reviews

9. Is the MHRB competent? • Public hearing – closed hearings before MHRB justified by competing right to privacy MHRB – a competent, independent and impartial tribunal?

10. Delays which cannot be justified by complexity of case or behaviour of parties are not compatible with right to fair hearing • Lack of resources & chronic under-funding cannot be excuse for unreasonable delays • Consider conduct and diligence of tribunal 2. Right to an expeditious hearing

11. “… we render insignificant the freedoms in issue, and pay lip service to the notion that wherever possible people with a mental illness should enjoy the same rights as other member of the community, if most people who become involuntary patients are not reviewed” • Vic. Law Reform Commissioner, Prof Neil Rees 8-week review – Justice delayed is justice denied

12. Why is legal representation important? • Right to participate and be heard • Legal assistance  access and participation • < 10% representation 3. Right to legal representation

13. No requirement for provision of legal aid in civil proceedings (cf. criminal proceedings) • Serious consequences – personal liberty • Complex cases • Unable to obtain fair hearing without legal representation – impact of illness and / or medication • European case suggests legal assistance “should” be provided Rights v Reality

14. MHRB duty under Mental Health Act s 24 • Access to files and applications for non-disclosure 4. Procedural fairness – “equality of arms”

15. 3 situations where material may be excluded: • Confidential information (privacy purpose) • Personal information about 3rd party (privacy purpose) • Serious risk of harm to person or someone else (health purpose) Applications for non-disclosure s 26(8) MHA

16. Consider: • Reasons for excluding material • reasonable and proportionate? • right to privacy • Impact of legal representation? • Should Board exercise discretion to view material itself? Applications for non-disclosure s 26(8) MHA

17. Hearings via telephone or videoconference • - eg. if MHRB hears evidence from Dr and person separately • Interpreter • Person cannot attend – detrimental to health • Consider facts & reasonable limitations Other examples of possible breaches of procedural fairness

18. MHRB may have additional obligations where person unrepresented • Eg. explain the process, explain the issues – 5 criteria, explain person’s rights.

19. Right to liberty and security • Burden of proof – person affected should not have to disprove the lawfulness of detention • Right to humane treatment when deprived of liberty • Inpatient setting • Board must treat persons appearing before it with dignity and respect Additional rights the MHRB must consider

20. Doesn’t invalidate MHA • MHRB can refer matter to Supreme Court • Charter - important advocacy tool If MHA is inconsistent with human rights?