Getting ready for a Mental Health Review Board hearing



Getting ready for a Mental Health Review Board hearing

October 2013

Information about involuntary treatment orders and Mental Health Review Board hearings.

With worksheets to help you:

• get ready for a hearing

• present your case at a hearing.

The government is changing mental health laws. This will happen in 2014.

Do you need this booklet in a different format?

Please ring us on 9269 0223 so we can talk with you about what you need.

Produced by Victoria Legal Aid

Victoria Legal Aid

350 Queen Street

Melbourne 3000

For help with legal problems, call Legal Help on 1300 792 387

For business queries, call 9269 0234

First edition 2013

Acknowledgments: Thank-you to the contributions and feedback from the Victorian Mental Illness Awareness Council and the Mental Health Review Board in developing this first edition.

© 2013 Victoria Legal Aid. Please contact us if you would like to re-use any of this publication in your own publications or websites.

Email CLE (cle@vla..au)

Disclaimer: The material in this publication is a general guide only. It is not legal advice. If you need to, please get legal advice about your own particular situation.

Changes to the law

The law changes all the time. To check for changes you can:

• call Victoria Legal Aid’s Legal Help phone line on 1300 792 387

• visit Victoria Legal Aid’s website at Victoria Legal Aid (legalaid..au)

• contact a community legal centre. Call the Federation of Community Legal Centres on 9652 1500 to find your nearest community legal centre.

ISBN 978 1 921949 07 4

Contents

Getting ready for a Mental Health Review Board hearing 1

Contents 3

About this booklet 4

What do these words mean? 4

What is the Mental Health Review Board? 4

What are hearings 5

What is a treatment plan? 8

How do I get ready for my hearing? 9

Worksheets 10

Where to get help 18

About this booklet

Who is this booklet for?

This booklet is for people on involuntary treatment orders who are getting ready for a Mental Health Review Board hearing. This booklet may also be helpful to any family, friends, support workers or advocates helping someone get ready for a Mental Health Review Board hearing.

What this booklet covers

We explain about what hearings are and how to get ready for them.

We also have worksheets at the back of the booklet. We have one worksheet for each criterion. In the worksheet we explain the criterion and what the board might ask you. Use these worksheets to write down what you want to say to the board in your hearing. Use extra paper if you need more room.

We also have a worksheet about community treatment orders and one about treatment plans. You can take these worksheets and your notes with you to the hearing.

Getting more help

We list the names of organisations that can provide you with legal advice and other support in the ‘Where to get help’ section on page 18.

What do these words mean?

In every chapter of this booklet we highlight legal words in bold when they first appear. The definitions for these words are below.

advocate – someone who helps other people to stand up for their rights. They can be a lawyer or paralegal but they can also be a friend, family member or support worker

appeal – challenge a court or board’s decision appeal hearing – the process for making an appeal is called an appeal hearing

community treatment order – a type of involuntary treatment order that allows a person to live in the community while receiving treatment for a mental illness

confirm – when the Mental Health Review Board decides to keep you on your order

criteria for involuntary treatment – legal requirements for decision-making

criterion for involuntary treatment – a legal requirement for decision-making

discharge – to be taken off an involuntary treatment order

involuntary patient – a person on an involuntary treatment order

involuntary inpatient – a person on an involuntary treatment order who is receiving treatment in a hospital (rather than on a community treatment order)

involuntary treatment order – a legal document that allows a hospital or mental health clinic to give a person treatment for a mental illness, even if they do not want the treatment

treatment plan – a document setting out what treatment you will receive from the treating team while you are an involuntary patient. You have a right to be involved in developing your treatment plan

What is the Mental Health Review Board?

The Mental Health Review Board (the board) is an independent decision-maker. It is not a part of the hospital or clinic where you receive treatment. The board is made up of board members and other people who work in the board’s office. The board reviews and hears appeals about involuntary treatment orders, community treatment orders and treatment plans.

What are hearings

A hearing is an official meeting to talk about your involuntary treatment order. Legal decisions are made in hearings.

Why do hearings happen?

The board makes these legal decisions at a hearing.

A hearing is a chance for them to:

• hear from you

• look at all the information.

What types of hearings are there?

There are two types of hearings:

• appeal hearing – this is a hearing that you can ask for at any time if you want the board to change or cancel your order

• review hearing – this is a hearing that the board organises automatically.

Where do hearings happen?

The board comes to your hospital or clinic and runs the hearing in a meeting room there.

When do hearings happen?

The board holds hearings on different days, usually every two weeks.

Review hearings happen automatically within eight weeks of you being made an involuntary patient, and then again each year after that.

If you have asked for an appeal hearing, it will usually happen within two weeks.

On the day, you may have to wait a while for your hearing to start. A number of hearings will happen on the same day. The hospital or clinic staff will let you know when it is time for your hearing. There is no set length of time for each hearing.

Who is at the hearing?

You

You do not have to go to the hearing, but going means you can ask questions and tell the board your story. You can also tell the board what you think about being on the involuntary treatment order or the community treatment order. If you do not go, the board might confirm your order and not discharge you. You should let the board know if you do not want to attend the hearing.

The board members

There will usually be three board members:

• a lawyer

• a psychiatrist (this cannot be anyone treating you or working for your hospital or clinic), and

• a community member.

The treating team

The doctor who is treating you will usually be there. Your nurse or case worker may also be there.

Lawyers and advocates

You can bring a lawyer or advocate to your hearing. A lawyer could be a Victoria Legal Aid lawyer, a lawyer from a community legal centre or a private lawyer.

A private lawyer will usually cost money.

Victoria Legal Aid lawyers are free but they cannot come with everyone to their hearings. Talk to them before your hearing about whether they can help you. They usually visit hospitals every two weeks, before the hearings. You can also call our Legal Help phone line on 1300 792 387.

Family members and friends

You can choose to bring other people.

You can ask a friend or family member to come to give evidence for you.

If you do not want family members or other people to be there, make sure you tell the board at the start of the hearing.

Is the hearing private?

Yes. Members of the public cannot sit in and listen. The board members and everyone at the hearing should not tell anyone else what happened at your hearing.

What rights do I have at a hearing?

The board must:

• conduct the hearing fairly

• consider human rights when making decisions.

You have the right to:

• see your file and all the documents that will be shown to the board. You have the right to see these things before your hearing

• you also have the right to speak to a lawyer before the hearing.

If you were not able to do any of these things, tell the board at the hearing.

What happens at a hearing?

The five criteria

The hearing will focus on the five criteria for involuntary treatment. These criteria come from the mental health laws.

The five criteria are:

1. you appear to be mentally ill

2. your mental illness needs treatment straight away and you can get that treatment if you are kept on an involuntary treatment order

3. the order is necessary to stop your physical or mental health getting worse or to keep other people safe

4. you said no to treatment that is necessary for your mental illness or are not well enough to agree to that treatment

5. 5. you cannot receive adequate treatment for your mental illness in a way that would give you more freedom.

These criteria are explained more in the worksheets. See page 10.

What information will the board consider?

The board will:

• read the Report on Involuntary Status

• read your file

• read your treatment plan

• ask the doctor why they think you need to remain an involuntary patient

• ask you (or your lawyer or advocate) questions about what you want. They will listen to what you and your witnesses say and will look at any other information you ask them to.

What is the Report on Involuntary Status?

Your doctor will write a Report on Involuntary Status before each hearing.

It outlines:

• how you came to be in hospital

• your diagnosis

• the treatment that you are being given

• the treatment that the doctor plans to give you in the future.

In the Report on Involuntary Status your doctor will have said why they think you meet the criteria for involuntary treatment and why you need to receive treatment. That is, why you are on an involuntary treatment order.

What is in your file?

Your file has:

• all the notes that the nurses and doctors make about you each day while you are receiving treatment in hospital

• all the notes your case managers and doctors at the clinic make

• other documents like risk assessments and reports

• any other documents to do with your involuntary treatment.

What can the board decide at the hearing?

The board can:

• decide that you meet the criteria for involuntary treatment and confirm your involuntary treatment order or community treatment order

• if you are already on an involuntary treatment order, decide you meet the criteria for involuntary treatment but that you can receive that treatment in the community. The board can then make a community treatment order or order your doctor to make one in a reasonable time

• decide you do not meet the criteria for involuntary treatment and discharge you from your involuntary treatment order or community treatment order

• order the treating team to revise your treatment plan.

You can read more about treatment plans on page 8.

The board can only keep you on the involuntary treatment order if they decide that you meet all five criteria for an involuntary treatment order.

If you do not want to be an involuntary patient, you must show the board that you do not meet at least one of the criteria.

If the board agrees that you do not meet one or more of the criteria, they must discharge you from your involuntary treatment order.

What can't the board decide?

The board cannot:

• decide that the doctor gave you the wrong diagnosis

• change your medication or treatment, including electroconvulsive therapy (ECT)

• give you compensation money or punish the doctor if you are unhappy about the way you have been treated

• give you leave from the hospital.

Will the board put me onto a community treatment order?

Do you need to be an inpatient to receive treatment?

If the board finds that you meet all the criteria for involuntary treatment, the board will ask you questions about whether you need to get your treatment as an inpatient in the hospital or if you can receive that treatment under a community treatment order. The worksheet on page 15 can help you think through how you would answer the board if they ask these questions.

What happens if I am on a community treatment order?

You are still an involuntary patient and you still have to accept the treatment the doctor thinks you need. However, you can live in the community while you receive that treatment. You may live at your own place or with family or friends. You may live in a supported residential service (SRS) or in a community care unit (CCU). The staff in these places can help check with how you are going.

What happens to my treatment on a community treatment order?

Under a community treatment order, your treatment would be supervised by a community mental health clinic. You will have to go to regular appointments at the clinic for them to monitor your mental health and adjust the treatment. You may also have to accept home visits for them to supervise your medication.

You may want to be discharged a voluntary patient rather than on a community treatment order, but you should prepare the worksheet on page 15 just in case the board does not agree with your earlier arguments.

What if I am not happy with the board’s decision?

You should speak to a lawyer before doing any of these things below.

Ask for the written Statement of Reasons

Write to the board and ask for the written ‘Statement of Reasons’. This document explains why the board made their decision. You must send your letter to the board within 28 days of the decision. They should give you the statement within two weeks.

Ask for another hearing

You can appeal to the board at any time and have another appeal hearing. You can do this as many times as you need to.

Appeal to VCAT

You can apply to the Victorian Civil and Administrative Tribunal and have a hearing there.

What is a treatment plan?

What goes into a treatment plan?

Your doctor must prepare a treatment plan for you. The treatment plan must:

• set out the treatment you will get

• say who will monitor and supervise your treatment

• say who your case manager is (if you have one)

• say where you will receive the treatment

• say when you have to get treatment (if you are on a community treatment order)

• say how often the doctor supervising your treatment must write a report to the psychiatrist monitoring your treatment.

You should be given the best possible treatment and care that you need, in the way that is the least restrictive and intrusive in your life. The treatment should interfere with your rights, privacy, dignity and self-respect as little as possible. If it is possible, you should be treated in the community.

If the board confirms your involuntary treatment plan, the board must then review your treatment plan. See the worksheet on page 16 for more information.

Does the board review treatment plans at the hearing?

At every hearing about involuntary treatment, the board must review the treatment plan that the doctor has made. The board will check if the doctor has complied with the law for making a treatment plan.

The law says that the doctor must consult you in making the treatment plan, and take into account your wishes in deciding on the treatment.

If you are unhappy with the way your treatment plan was prepared, you should tell the board.

The worksheet on page 16 can help you answer questions the board may ask about your treatment plan.

How do I get ready for my hearing?

Date and time of your hearing

Have you got a letter from the board about when your hearing is?

Write down the details here.

Date:

Time:

Medical treatment

Here are some questions to help you think about your treatment. Are you happy to stay in the hospital as an involuntary patient? Are you happy with the treatment your doctor is giving you? Are you happy to receive treatment under a community treatment order? Can you make decisions about your health? What do you want changed?

The five criteria

Remember, at the hearing the board will decide whether you meet all five criteria for an involuntary treatment order. If you want to be discharged, you need to show that you do not meet one or more of the five criteria.

Use the worksheets on pages 10 to 17 to work out what you want to say about each criterion at the hearing.

Your file and report

Remember, the board will read your file and the Report on Involuntary Status. You have the right to see these documents too, at least 24 hours before the hearing.

Your doctor should give you your report at least 24 hours before the hearing and explain it to you. If you want to read your file, ask the staff at your hospital or clinic to see it.

If you do not get to read your report and file at least 24 hours before your hearing, the board can delay the hearing so you have more time to prepare.

You can look at your file. You do not need to make a ‘freedom of information’ request. The hospital or clinic staff must let you see your file.

They may not do this if the hospital or clinic staff have already asked the board to keep your file secret. The front page of your report will say if they have asked for this.

Evidence

Think about what you want to tell the board. Get your evidence together.

Evidence is anything that can back up what you say. Evidence can be in writing, like reports and letters that someone has written for you.

Evidence can also be what witnesses say to the board on your behalf.

Get your evidence together as soon as you can.

Witnesses

You can ask someone to come to the hearing and tell the board why you do not meet one or more of the criteria. For example, a witness may be able to tell the board that you have good support networks in the community or a stable place to live.

Make sure you tell your witnesses the date and time of your hearing.

Second psychiatric opinion

If you do not think you have a mental illness or do not think that you need treatment, get a second psychiatric opinion. This can be used as evidence at your hearing.

You have the right to get a second opinion from another psychiatrist. Ask the hospital or clinic staff to arrange this for you. You should ask for this as soon as you can.

You can get a second opinion from a psychiatrist who works at the hospital or clinic. This will be free. If you want a second opinion from a psychiatrist who does not work at the hospital or clinic where you are being treated, you may need to see a private psychiatrist. This may cost money and you will have to organise it yourself.

Worksheets

If you want to be discharged from your involuntary treatment order, you need to show that you do not meet one or more of the criteria.

You do not need to argue against all five criteria but you may still want to use these worksheets to help you think about each criterion. Focus on your strongest argument.

Criterion A – Do you appear to be mentally ill?

What is the board looking for with this criterion?

This criterion is about being mentally ill. The board is looking for evidence that you are or appear to be mentally ill.

A mental illness is a medical condition where you have a significant disturbance of thought, mood, perception or memory. Some examples are depression, schizophrenia, schizoaffective disorder and bipolar affective disorder.

According to the law, you may ‘appear to be mentally ill’ even if the doctors have not yet decided which mental illness you have.

You may also ‘appear’ to be mentally ill even if you do not currently show any active symptoms of mental illness.

How do I show the board that I do not meet this criterion?

You need to show that you do not appear to be mentally ill. You will usually need evidence from a doctor or psychiatrist to show this.

Questions the board members may ask

• Have you been diagnosed with a mental illness?

• What do you think about the diagnosis?

• Have you been diagnosed with this mental illness or another mental illness before?

• If you do not think you have a mental illness, do you have evidence from another psychiatrist or doctor who agrees with you?

• If you do not think you have a mental illness, why do you think you are getting treatment?

Your answers: (Write your thoughts here)

Criterion B – Does your mental illness need treatment straight away and can you get that treatment if you are kept on an involuntary treatment order?

What is the board looking for with this criterion?

This criterion is about the need for treatment. The board is thinking about whether your mental illness needs treatment straight away. If so, can you get that treatment if you are kept on an involuntary treatment order?

Treatment means things done with professional skill to:

• make your illness go away

• lessen the symptoms and the pain and suffering of the mental illness.

Treatment can include medication, counselling, psychotherapy, observation, monitoring, support, assessment and case management. Treatment must not be cruel, inhumane or degrading.

How do I show the board that I do not meet this criterion?

You need to show that you do not need treatment straight away or that you cannot get the treatment you need while on an involuntary treatment order. You will usually need evidence from a doctor or psychiatrist to show this.

Questions the board members may ask

• What treatment are you being given?

• What do you think about that treatment? Is it helping you? What are the side effects?

• What would happen if you did not have this treatment immediately?

• Would another treatment work better?

Your answers: (Write your thoughts here)

Criterion C – Is the order necessary to stop your physical or mental health getting worse or to keep other people safe?

What is the board looking for with this criterion?

This criterion is about two types of risk. If you did not have an involuntary treatment order or a community treatment order, and could not be forced to accept treatment:

• would your mental health get worse or would your safety be at risk?

• would other people be put at risk by you?

If the order is needed to stop either of the risks above, the board will find that you meet this criterion.

The board is thinking about how likely it is that these risks might happen, and how serious it would be if they did happen. Some risks are not serious enough to justify involuntary treatment. These might be risks to your finances, reputation, your job or your family relationships.

How do I show the board that I do not meet this criterion?

You need to show that there are no risks or that you can manage any risks without an involuntary treatment order.

Questions the board members may ask

• If you were not an involuntary patient, how would you make sure you stay well? For example, would you keep taking the treatment that the doctor recommends?

• Are there negative things about your involuntary treatment the board should think about?

• Is being an involuntary patient causing more harm than benefit to you?

• How are your personal relationships affected?

• Have other people been put at risk or hurt by you when you have been unwell?

Your answers: (Write your thoughts here)

Criterion D – Have you said no to treatment that is necessary for your mental illness or are not well enough to agree to that treatment?

What is the board looking for with this criterion?

There are two parts to this criterion:

1. Are you refusing necessary treatment for your mental illness? If so, the board will find that you meet this criterion.

2. If you say you accept treatment, do you understand what the treatment is about and are you well enough to agree to the treatment? If not, the board will find that you meet this criterion.

If you tell the board that you will accept treatment, the board members will try to work out how much you understand about the illness you have been diagnosed with and the treatment the doctors say you need.

How do I show the board that I do not meet this criterion?

You need to tell the board that you agree to taking the necessary treatment and show that you have a good understanding of your illness and why the treatment is important. If there is some treatment you are refusing, you need to show that this treatment is not necessary.

Questions the board members may ask

• If you were not an involuntary patient and could choose whether or not to have treatment, what would you do? Would you agree to all treatment or would you refuse some of the treatment? Why is this?

• If you are an involuntary inpatient, would you be willing to stay in the ward voluntarily? Why is this?

• Do you understand enough about your illness to make good decisions about your treatment? Explain what you know about your illness and patterns of becoming well or unwell.

• What has happened before when you have been asked to take medication?

• Have you stopped taking your medication in the past? If so, why? What happened?

• What is the purpose of each of your treatments and medications? Why are they important?

• What would happen to you if you did not take your treatment and medications? If you thought you were becoming unwell, what would you do?

Your answers: (Write your thoughts here)

Criterion E – Can you receive adequate treatment for your mental illness in a way that would give you more freedom?

What is the board looking for with this criterion?

This criterion is about whether you can receive adequate treatment and support in a way that gives you more freedom. For example, could you receive the treatment and support you need as a voluntary patient?

The board must decide what will give you the most freedom but they want be sure that you will actually get the treatment and support they think you need.

How do I show the board that I do not meet this criterion?

You will need to show the board that you can get adequate treatment and support in a way which would give you more freedom.

If there is some part of the recommended treatment that you would not continue as a voluntary patient, you need to show that the treatment you will have will be adequate.

Questions the board members may ask

• If you were not an involuntary patient, would you choose to stay at the hospital as a voluntary patient (even though you did not have to)? Why is this?

• Would you choose to continue treatment? Why is this?

• Would you work with your local doctor, a private psychiatrist or the community mental health service? Have you worked with them before?

• If you left the hospital, where would you live? Is this a stable place to live?

• What supports and help do you have in the community? Who has regular contact with you and makes sure you stay well and continue your treatment?

• If you became unwell again, what would you do? Have you asked for help before when you were becoming unwell? Is there someone you know who would make sure you get support and treatment quickly if you were becoming unwell?

• Is there anything else the board needs to know so they can make a good decision?

Your answers: (Write your thoughts here)

If the board decides I do meet all five criteria for involuntary treatment, do I need to stay in hospital?

The board will only ask this question if they have decided you meet all five criteria. This worksheet can help you answer the question.

What is the board looking for with this question?

This is about where should you receive involuntary treatment. The board will want to know whether you can receive that treatment through the clinic, without the hospital staff closely supervising you in the hospital.

How do I show the board that I do not need to be an inpatient?

You need to show that you do not need to be in hospital to receive the involuntary treatment. Instead, you could receive that treatment under a community treatment order.

Questions the board members may ask

• Do you have somewhere to live? What sort of place is this?

• Is your medication still being trialled or adjusted in the hospital?

• Does your mental state mean the hospital staff need to closely supervise you at the moment?

• Have you worked with a community mental health clinic before? How did that go?

• Do you have a relationship with the local clinic already? Would you be honest with the clinic about how things are going?

• Did you follow your treatment and go to appointments when you went to the clinic before? If not, why not? What would be different this time?

• Is there someone where you live who can make sure you take your medication?

• Is there someone you see regularly who would notice any changes in your mental state and call your doctor or the Crisis Assessment and Treatment (CAT) team if they were worried about you?

• How would you remember your appointments? How would you travel to the clinic?

Your answers: (Write your thoughts here)

How is your treatment plan going?

What is the board looking for with this question?

The board wants to know that the doctor complied with the law when making the treatment plan. If not, the board will order the doctor to revise the treatment plan. Remember, the board cannot change your treatment or make specific changes to your treatment plan.

How do I talk to the board about this question?

Go through this checklist.

Did your doctor…

• Discuss your treatment plan with you?

• Look at it regularly and revise it as needed?

• Think about what you wanted?

• Think about what your family members or carers wanted? (Unless you did not want the

• doctor to talk to these people)

• Look into other types of beneficial treatments?

• Look into any significant risks of the treatment or other types of treatments?

• Consider whether the treatment is only to keep you healthy or well (rather than for

• other purposes)?

If you did not tick all of these, tell the board to order your doctor to revise your treatment plan.

Your extra notes: (Write your thoughts here)

Where to get help

Victoria Legal Aid

Legal Help

For free information about the law and how we can help you, call Legal Help on 1300 792 387

Monday to Friday, 8.45 am and 5.15 pm

More information

More information is on our website at Victoria Legal Aid (legalaid..au)

Do you need help calling us?

Translating and Interpreting Service

Tel: 131 450

National Relay Service

TTY users: Call 133 677

Speak and Listen users: Call 1300 555 727

Internet relay users: See the National Relay Service website (.au)

Local offices

We have offices all over Victoria. Our offices are open Monday to Friday, 8.45 am to 5.15 pm.

See the back cover for office locations.

All offices are accessible to people with a disability.

Other contacts

Chief Psychiatrist

If you already tried talking to your doctor and psychiatrist and it did not help, you can make complaints to the Chief Psychiatrist about the treatment you are given.

Tel: 1300 767 299

Health Services Commissioner

If you already tried talking to the hospital staff or manager and it did not help, you can make complaints to the commissioner about the service you have received.

Tel: 1800 136 066

Mental Health Review Board

For more information about the board.

Tel: 1800 242 703

Mental Health Review Board website (mhrb..au)

Victorian Mental Illness Awareness Council

For advocacy and support.

Tel: 9380 3900

Victorian Mental Illness Awareness Council website (.au)

Useful Victoria Legal Aid resources

To order publications

We have free booklets about the law in English and other languages.

Visit the Victoria Legal Aid website (legalaid..au) to order or download booklets.

Call 9269 0234 and ask for Publications to find out more.

Our public law library

Open Monday to Friday, 9 am to 5 pm

350 Queen Street, Melbourne

Other publications include:

Victoria Legal Aid help card

Available in 26 languages

Are you on an involuntary treatment order?

Victoria Legal Aid

For help with legal problems, call Legal Help on 1300 792 387

For business queries, call 9269 0234

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To download or order our publications in English or other languages go to the Victoria Legal Aid website (legalaid..au)

If you need help ordering online please call 9269 0234 and ask for Publications or email CLE

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