Each person who is the subject of a proceeding has the right to be represented at the hearing by a nominated support person, a lawyer or another person.
The Mental Health Act 2016 (Act) requires a person who represents the subject person:
to the extent the subject person is able to express their views, wishes and preferences - represent those views, wishes and preferences; and
to the extent the subject person is unable to express their views, wishes and preferences - represent the person's best interests.
In the following circumstances, the Tribunal must appoint a lawyer to represent the subject hearing, if the person doesn’t already have someone representing them:
the person is a minor
the hearing is a review of the person's fitness for trial
the hearing is an application for approval to perform electroconvulsive therapy (ECT) on the person
the Attorney-General will be represented at the hearing.
The Tribunal may also appoint a legal representative in other circumstances where it considers that it would be in the person's best interests to be represented at the hearing.
In addition to representation at a Tribunal hearing, a subject person may seek the assistance of a lawyer in the following ways:
to lodge an appeal - information on the appeal process can be found here
to file an application with the Tribunal for an applicant review of their authority or order - information about applicant reviews can be found here
to request a statement of reasons or copies of relevant documents - information about requesting a statement of reasons can be found here and information about requesting other documents can be found here
to complete a self report ahead of their hearing - a self report template can be found here.
Note that it is for the subject person to seek legal assistance in these circumstances and the Tribunal is unable to assist.
How the Tribunal appoints lawyers to represent people
The Tribunal has a service agreement in place with Legal Aid Queensland (LAQ) for the provision of legal services for persons appearing before the Tribunal. Where the Tribunal is required to appoint a lawyer for a person or otherwise considers it is in their best interests to be represented, the Tribunal makes a referral to LAQ.
A person is entitled to be represented by their own lawyer at a hearing, however, this will be at the person's own cost.
LAQ allocates the matter to a particular lawyer who contacts the person the subject of the hearing directly. In circumstances where the Tribunal refers a matter to LAQ, the Tribunal pays for those services by payment directly to LAQ and the services are provided to the person at no fee.
LAQ publishes case management standards for practitioners appearing before the Tribunal which can be accessed here, and guidelines for lawyers working with clients in the Tribunal which can be accessed here.
Waiver of legal representative
The following information applies in situations where the Tribunal has appointed a legal representative for a person the subject of a hearing.
If the person is an adult with capacity, the person may waive the right to be represented by the appointed representative. The Act provides that a person has capacity to waive the right to be represented if the person has the ability to:
- understand the nature and effect of the decision to waive the right; and
- freely and voluntarily make the decision to waive the right; and
- communicate the decision to waive the right.
The Tribunal may only accept the waiver if the person makes such waiver in writing.
The Tribunal's jurisdiction
The Tribunal was established under the Mental Health Act 2000 and is continued under the Act. It has the jurisdiction set out in Chapter 12 of the Act and is administered pursuant to Chapter 16.
A copy of the Act can be accessed here.
Given the Tribunal is not a court of record, the decisions of one Tribunal panel do not bind future Tribunal panels.
The President has published Practice Directions regarding Tribunal procedure which can be located here.
The Tribunal's relationship with the Mental Health Court
Where a party can appeal to the Mental Health Court, that appeal is as of right and does not require the party to identify an error of law. Further, appeals of the Mental Health Court are heard de novo, meaning that the Mental Health Court makes the decision afresh, including with additional/new evidence if appropriate.
Many decisions of the Mental Health Court are restricted and must not be published by any person. However, those decisions of the Mental Health Court that it elects to publish can be located here.