Processes of review

The NSW Mental Health Act 2007 establishes two important external processes of review for people whose liberty or rights are significantly interfered with as a result of their mental illness. These are the Magistrate's Inquiry and the Mental Health Review Tribunal. The Act specifies that in general: these processes are to be conducted with "as little formality and legal technicality as the circumstances of the case permit". A NSW Magistrate has stated: "Magistrate's Inquiries (and Tribunal Hearings) can, if conducted properly and efficiently, have a therapeutic effect on the patient. The person can see that the "outside world" is interested in their problems and that the declared mental health facility is accountable for what it does. Poorly prepared and presented cases, on the other hand, can have the opposite effect." Procedural fairness and a non-adversarial approach: The concept of procedural fairness in general requires: the magistrate or Tribunal be fully informed of all relevant aspects of the person's case, and the person concerned be able to hear what is being proposed, and have the opportunity to state their views. The Mental Health Act 2007 promotes procedural fairness in a number of specific ways:hearings are open to the public (unless the person or their legal representative objects, and the objection is upheld by the magistrate or Tribunal) the person may be represented by a lawyer, or another person of their choosing (unless they decide that they don't want such representation); a relative, guardian or friend of the person may speak at the hearing with the approval of the magistrate or Tribunal; the person's name is not published or broadcast (without their consent and the approval of the magistrate or Tribunal); the person is entitled to have access to their medical records when being brought before a magistrate (unless the magistrate decides this would be harmful); the person's representative is entitled to have access to the relevant medical records (and may withhold harmful information from the person); the proceedings are recorded but generally not transcribed. While these sections of the Act establish some rules for the conduct of hearings, individual magistrates and Tribunals have a wide discretion in determining how they will proceed. The mental health and legal systems do not always sit easily together, and frustration on all sides is not uncommon. While there is still a long way to go in establishing a non-adversarial approach as the norm in these hearings, the careful preparation of reports by mental health professionals can make a significant difference to the conduct of these matters. It should also be recognised that where the patient believes that they should not be detained, a more adversarial approach may be unavoidable.