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
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
What does it mean to have a fair
hearing?
•
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?
•
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
Focus on 4 aspects to this right
1. Independent and impartial decision-maker
2. Hearing without undue delay –
expeditious
3. Legal representation
4. Procedural fairness
1. MHRB – a competent,
independent and impartial tribunal?
•
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.
• 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
• 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
MHRB – a competent, independent
and impartial tribunal?
• Is the MHRB competent?
• Public hearing – closed hearings before
MHRB justified by competing right to
privacy
2. Right to an expeditious hearing
•
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 underfunding cannot be excuse for
unreasonable delays
• Consider conduct and diligence of tribunal
8-week review – Justice delayed
is justice denied
“… 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
3. Right to legal representation
Why is legal representation important?
•
•
•
Right to participate and be heard
Legal assistance  access and
participation
< 10% representation
Rights v Reality
• 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
4. Procedural fairness –
“equality of arms”
•
MHRB duty under Mental Health Act s 24
•
Access to files and applications for nondisclosure
Applications for non-disclosure
s 26(8) MHA
3 situations where material may be excluded:
(a)Confidential information (privacy
purpose)
(b)Personal information about 3rd party
(privacy purpose)
(c) Serious risk of harm to person or
someone else (health purpose)
Applications for non-disclosure
s 26(8) MHA
Consider:
• Reasons for excluding material
- reasonable and proportionate?
- right to privacy
• Impact of legal representation?
• Should Board exercise discretion to view
material itself?
Other examples of possible
breaches of procedural fairness
•
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
•
MHRB may have additional obligations
where person unrepresented
- Eg. explain the process, explain the
issues – 5 criteria, explain person’s
rights.
Additional rights the MHRB must
consider
•
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
If MHA is inconsistent with
human rights?
•
•
Doesn’t invalidate MHA
MHRB can refer matter to Supreme Court
•
Charter - important advocacy tool