A Critical Analysis of Legal Representation in Queensland's Mental Health Review Tribunal

Jake Buckingham

Abstract


Mental health review tribunals make and review a variety of decisions regarding the care and treatment of individuals who have mental conditions. Each Australian State and Territory has established its own mental health review tribunal as the “gatekeeper” of civil commitment. Queensland is the only Australian jurisdiction to establish both a Mental Health Court and a Mental Health Review Tribunal to decide mental health matters. Queensland recently implemented the Mental Health Act 2016 which mandates that individuals are to be legally represented in certain tribunal proceedings. This paper concludes that the mandatory appointment of legal representatives is an indispensable measure to ensure tribunal proceedings are fair, transparent, and therapeutically beneficial. 

Editors' Note:

Since this article was published, the Editors have received a list of concerns from an authoritative source which are currently under investigation. Please read this article with this caution in mind.


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References


A Articles/Books/Reports

Beaupert, Fleur, and Alikki Vernon, ‘”Odyssey of Hope”: The Role of Carers in Mental Health Care’ (2011) 18(1) Psychiatry, Psychology and Law 44

Beaupert, Fleur, ‘Mental Health Tribunal Processes and Advocacy Arrangements: “Little Wins” Are No Small Feat’ (2009) 16(1) Psychiatry, Psychology and Law 90

Brakel, Samuel Jan, ‘Searching for the Therapy in Therapeutic Jurisprudence’ (2007) 33 New England Journal on Criminal and Civil Confinement 455

Brown, Steve, ‘The Mental Health Tribunal of Queensland: A Useful Model for UK Forensic Psychiatry?’ (1999) 10(2) The Journal of Forensic Psychiatry 325

Callaghan, Sascha, and Christopher James Ryan, ‘An Evolving Revolution: Evaluating Australia’s Compliance with the Convention on the Rights of Persons with Disabilities in Mental Health Law’ (2016) 38(2) UNSW Law Journal 596

Carney, Terry, ‘Australian Mental Health Tribunals — “Space” For Rights, Protection, Treatment and Governance’ (2012) 35 International Journal of Law and Psychiatry 1

Carney, Terry, and Fleur Beaupert, ‘Mental Health Tribunals: Rights Drowning in Un-“Chartered” Health Waters?’ (2008) 13(2) Australian Journal of Human Rights 181

Carney, Terry, David Tait and Fleur Beaupert, ‘Pushing the Boundaries: Realising Rights through Mental Health Tribunal Processes?’ (2008) 30 Sydney Law Review 329

Carney, Terry, David Tait, Duncan Chappell and Fleur Beaupert, ‘Mental Health Tribunals: “TJ” Implications of Weighing Fairness, Freedom, Protection and Treatment’ (2007) 17 Journal of Judicial Administration 46

Carney, Terry, David Tait, Julia Perry, Alikki Vernon and Fleur Beaupert, Australian Mental Health Tribunals: Space for Fairness, Freedom, Protection and Treatment? (Themis Press, 2011)

Carney, Terry, Fleur Beaupert, Julia Perry and David Tait, ‘Advocacy and Participation in Mental Health Cases: Realisable Rights or Pipe-Dreams?’ (2008) 26(2) Law in Context 125

Dawson, John, ‘Judicial Review of the Meaning of Mental Disorder’ (2003) 10(1) Psychiatry, Psychology and Law 164

Grundell, Erica, ‘Psychiatrists Perceptions of Administrative Review: A Victorian Empirical Study’ (2005) 12 Psychiatry, Psychology and Law 68

McSherry, Bernadette, ‘Hospital Orders for Offenders with Mental Illnesses: An Appropriate Diversionary Option?’ (2009) 16 Journal of Law and Medicine 568

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Peay, Jill, Tribunals on Trial: A Study of Decision-Making under the Mental Health Act 1983 (Clarendon Press, 1989)

Perlin, Michael, ‘I Might Need a Good Lawyer, Could Be Your Funeral, My Trial: Global Clinical Legal Education and the Right to Counsel in Civil Commitment Cases’ (2008) 28(1) Washington University Journal of Law and Policy 1

Richardson, Genevra, and David Machin, ‘Doctors on Tribunals: A Confusion of Roles’ (2000) 176 British Journal of Psychiatry 110

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Treffert, Darold, ‘Dying with Their Rights On’ (2006) 130(9) American Journal of Psychiatry 1041

B Legislation

Judicial Review Act 1991 (Qld)

Mental Health Act 2000 (Qld)

Mental Health Act 2007 (NSW)

Mental Health Act 2009 (SA)

Mental Health Act 2013 (Tas)

Mental Health Act 2014 (Vic)

Mental Health Act 2014 (WA)

Mental Health Act 2015 (ACT)

Mental Health Act 2016 (NT)

Mental Health Act 2016 (Qld)

C Treaties

Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS (entered into force 3 May 2008)

International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976)

International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976)

Second Optional Protocol to the International Covenant on Civil and Political Rights, opened for signature 15 December 1989, 1642 UNTS 414 (entered into force 11 July 1991)

The Protection of Persons with Mental Illness and the Improvement of Mental Health Care, GA Res 46/119, UN GAOR, 75th plen mtg (17 December 1991)

D Other

Australian Bureau of Statistics, National Survey of Mental Health and Wellbeing: Summary of Results, 2007 (23 October 2008)

Australian Institute of Health and Welfare, Specialised Admitted Mental Health Care Patient Characteristics (December 2015) Mental Health Services in Australia

Grundell, Erica, ‘Burden to Benefit? Psychiatric Perspectives on the Impact of Administrative Review in Victoria, Australia’ (Paper presented at the 30th Congress of the International Academy of Law and Mental Health, Padua, Italy, June 2007)

Holmes, Catherine, ‘Queensland’s Mental Health Court’ (Speech delivered at the Judicial Conference of Australia, Noosa, 11 October 2014)

Queensland Department of Health, About the Mental Health Act 2016 (23 March 2017)

Queensland Government, About Our Members (2017) Queensland Mental Health Review Tribunal

Queensland Law Society, Australian Solicitors Conduct Rules (1 June 2012)

Queensland Mental Health Review Tribunal, Annual Report 2015–16 (4 October 2016)