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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

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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
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?

what does it mean to have a fair hearing1

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?

focus on 4 aspects to this right

Independent and impartial decision-maker

  • Hearing without undue delay – expeditious
  • Legal representation
  • Procedural fairness

Focus on 4 aspects to this right

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.

1. MHRB – a competent, independent and impartial tribunal?

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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
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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

MHRB – a competent, independent and impartial tribunal?

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 under-funding cannot be excuse for unreasonable delays
  • Consider conduct and diligence of tribunal

2. Right to an expeditious hearing

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

8-week review – Justice delayed is justice denied

3 right to legal representation

Why is legal representation important?

  • Right to participate and be heard
  • Legal assistance  access and participation
  • < 10% representation

3. Right to legal 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

Rights v Reality

applications for non disclosure s 26 8 mha

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

applications for non disclosure s 26 8 mha1

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

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

Other examples of possible breaches of procedural fairness

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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

Additional rights the MHRB must consider

if mha is inconsistent with human rights

Doesn’t invalidate MHA

  • MHRB can refer matter to Supreme Court
  • Charter - important advocacy tool

If MHA is inconsistent with human rights?