Law Research News

Procedural fairness in mental health review tribunals

Dr Sam Boyle and Professor Tamara Walsh from UQ conducted a study into the decision-making of the Queensland Mental Health Review Tribunal. They conducted group interviews with 36 lawyers and advocates for people with matters before the tribunal. The first paper arising from this study has just been published in Psychiatry, Psychology and Law.

In this paper, Sam and Tamara examined the common law rules of procedural fairness and how they apply to mental health tribunals. They then assessed what their participants said about Queensland Mental Health Review Tribunal practices against those procedural fairness requirements. Based on this assessment, it was found that if the participants’ views were accurate, there were a number of potential deficiencies in tribunal practice. In particular, there were concerns expressed about how well informed clients were about tribunal proceedings, the quality of the evidence relied upon, and the extent to which medical evidence was effectively challenged.

This study is published just after the Court of Appeal handed down a unanimous judgment in MDF v Central Queensland NAMHS [2020] QCA 108. The court decided that when the Mental Health Review Tribunal decides to issue an examination authority, the person subject to that authority has the right to reasons for that decision. This is so, even though the tribunal is not required to provide reasons to those parties under the Mental Health Act 2016. The right to receive reasons for a decision is provided for under the Judicial Review Act 1991 (Qld). The court found that this Act applied to people subject to examination authorities because their rights were ‘reduced in a very substantial way’. Therefore, this decision highlights the importance of allowing scrutiny of Mental Health Review Tribunal decision-making.

About Sam Boyle

Sam BoyleSam Boyle is a lecturer at the Australian Centre for Health Law Research. He researches the ways in which law regulates mental health, especially in the areas of capacity and consent.

You can read more about Sam in his staff profile.

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