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Practice Directions
Practice
Direction - 2007/1 Charter of the Human Rights and Responsibilities Act
2006
Practice
Direction 2005.1 Hearings Venues and Security 31.05.05
Report
on Involuntary Status for Mental Health Review Board (Version 2.1, Dec
2004)
Practice Direction 2004/1
Involuntary Status for Mental Health Review Board
Practice Direction - 98/3 Observers at Board Hearings
Practice Direction - 98/2 This Practice Direction replaces
No.87/1
Other Guidelines
Guidelines
for ensuring patient access to documents
Guidelines for ensuring compliance with the
rules of natural justice
Information for Authorised Psychiatrists
and for all Medical Practitioners appearing before the Board
Whistleblowers Protection Act 2001
Practice Direction -
2007/1 Charter of the Human Rights and Responsibilities Act 2006
Word
version (doc 122 kb)
Adobe version (pdf 107kb)
Information detailing the Act
is accessible from the Victorian
Government Web Site
Practice Direction 2005.1
Hearings Venues and Security 31.05.05
On 31 May 2005, the Board issued a new Practice
Direction, dealing with safety and security requirements for hearings
conducted at mental health services (services). This
Practice Direction applies to all Board hearings conducted on and from
1 July 2005.
The
Practice Direction resulted from a comprehensive review of hearing venues
and security at every mental health service the Board undertook in 2003,
which culminated in a comprehensive report published in September 2003.
In its report, the Board made a series of recommendations to provide improved
hearing services and to enhance safety and security for all persons involved
in Board hearings, which were discussed with the Department of Human Services,
Office of the Chief Psychiatrist and Board members.
The
aim of the Practice Direction is to assist services and parties by providing
as safe system of work and workplace for the conduct of its hearings as
possible. As its hearings venues are situated in premises under the control
of services in almost all cases, it is the intention of the Practice Direction
to clearly specify what standard minimum requirements and security at
Board hearings are acceptable. For this purpose, the Board distinguishes
between existing venues and venues for which planning for substantial
construction commences on or after 1 July 2005.
To
assist these aims, the Board always attempts to conduct hearings in as
therapeutic an environment as possible, in appropriate and safe venues,
and using procedures which respect the rights of patients and others attending,
and enhance their dignity and effective participation in the review process.
This involves appropriate skills and attitudes of Board members, appropriate
skills, attitudes and support of staff of services, and appropriate attitudes
and behaviour of patients and people attending hearings in support roles.
Report on Involuntary Status for Mental Health
Review Board (Version 2.1, 6 Dec 2004)
The Board has issued a Practice
Direction, PD 2004/1
(Dec.2004) (pdf 19.6Kb) requiring Mental Health Services to use a
new format of the Report on Involuntary Status for all Board hearings
conducted after 6 December 2004. It is imperative that all mental health
clinical staff follow the requirements of the Practice
Direction (pdf 20Kb) and the instructions
for preparation of the Report (pdf 19Kb). Please read the Practice
Direction and instructions carefully. Services are encouraged to download
the Report on Involuntary Status
word template (doc 76Kb) and the Report
on Involuntary Status PDF document (pdf 33Kb) onto their computer
system for use by medical and allied health staff in preparation for Board
hearings.
PRACTICE DIRECTION - 98/3
OBSERVERS AT BOARD HEARINGS
In accordance with the provisions of clause 4(1)(b) of Schedule 2 to the
Mental Health Act 1986 (the Act) the following Practice Direction is made
in relation to the attendance of observers at hearings of the Board. As
stated in section 33(1) of the Act, proceedings of the Board are closed
to the public. However, the Board does have the power to allow members
of the public to attend. This Practice
Direction 98/3 relates only to the attendance of observers and does
not limit the exercise of the Board's powers under section 33(2) to direct
that particular proceedings or any part of the proceedings are to be open
to members of the public. This direction may be given if the Board is
satisfied that it would be in the best interests of the patient or in
the public interest.
PRACTICE DIRECTION 98/2
This Practice Direction replaces No.87/1
In accordance with the provisions of clause 4(1)(b) of Schedule 2 to the
Mental Health Act 1986 (as amended) (the Act) the following Practice
Direction 98/2 is made for the assistance of authorised psychiatrists,
staff at mental health services, patients appearing before the Board,
their representatives and Board members.
Other Guidelines
The Whistleblowers Protection
Act 2001 became law in Victoria on 1 January 2002. Please click here to
view the Board’s Reporting Procedure Guidelines . A copy of the
Ombudsman's detailed guidelines may be downloaded from the Ombudsman’s
website.
INFORMATION FOR AUTHORISED
PSYCHIATRISTS AND FOR ALL MEDICAL PRACTITIONERS APPEARING BEFORE THE BOARD
1. LEGAL
ROLE OF AUTHORISED PSYCHIATRISTS AND OTHER MEDICAL PRACTITIONERS
The authorised
psychiatrist at each approved mental health service, or at a community
clinic for which that approved mental health service is responsible, is
a party to all hearings before the Board at that service or clinic. The
authorised psychiatrist, or a psychiatrist holding a written delegation
under section 96(4) of the Mental Health Act 1986 (the Act), may be present
at hearings.
Medical practitioners
who do not hold a delegation from the authorised psychiatrist, may appear
before the Board as the representative of the authorised psychiatrist.
However, the Board reserves the right in exceptional cases to seek the
attendance of the authorised psychiatrist or a consultant psychiatrist
holding a delegation under section 96(4) of the Act.
2. NOTIFYING
THE BOARD OF CHANGED CIRCUMSTANCES
The authorised
psychiatrist should ensure that the medical records staff advise the Board
if:
• the patient has been discharged on a community treatment order
thus requiring the hearing to be adjourned to another location;
• the patient has been discharged from being an involuntary/security
patient;
• it is known that the patient will not be attending the hearing;
and
• any special arrangements are needed.
3. STEPS
PRIOR TO BOARD HEARINGS
The overall
responsibility for ensuring that the appropriate preparatory steps have
been taken before a hearing rests with the authorised psychiatrist and
his/her delegates. Day to day responsibility for specific tasks is a matter
at the discretion of the authorised psychiatrist. The authorised psychiatrist
should ensure that the following steps are taken:
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In the case of an inpatient, the Notice of Hearing should be handed
to the patient at least 7 days prior to the hearing. In some appeals
the Notice of Hearing may arrive at the mental health service only
a few days before the hearing date and should, therefore, be handed
to the patient as soon as possible.
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The fact that a patient will require the assistance of an interpreter
should be communicated immediately to the Board's Executive Officer.
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The Statement of Service of the Notice of Hearing should be completed
and made available to the Board at the hearing.
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The document titled "Report on Continued Detention for the Mental
Health Review Board" (now called “Report on Involuntary
Status for the Mental Heath Review Board”) should be completed
and three copies made available for the Board. These are in addition
to the treating doctor's copy.
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Not later than one day prior to the day of the hearing, the patient
should be given the opportunity to read the Report on Continued Detention
and to read his/her clinical file. If the patient is not capable of
understanding the contents of the Report and the clinical file, this
should be reported to the Board at the commencement of the hearing.
In some instances it may be deemed necessary to withhold some information
from the patient. The procedure to be followed in such cases is set
out in the Board's Practice Direction 98/2.
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The clinical file should be made available to the Board members
at least 30 minutes before the first scheduled hearing on the day
of the hearing or at such other time as may be specified in special
circumstances.
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The medical practitioner who will appear before the Board should
make contact with the member of the mental health service staff responsible
for listing the order in which the Board will hear cases in order
to ascertain the approximate time at which the hearing will commence.
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The medical practitioner who will appear before the Board should
be clinically acquainted with the patient and should be able to present
details directed towards the criteria for continued involuntary or
security detention or other matters being considered by the Board
(eg. transfer, leave of absence for security patients etc.)
4. PATIENT'S
RELATIVES
In many cases
the Board will be assisted by the presence of a patient's relatives at
the hearing. Subject to the patient's consent, the appropriate person
from the clinical team or the medical records administrator is urged to
contact relatives with the request that they attend the hearing if it
is felt that the relatives may assist the Board in its deliberations.
5. ATTENDANCE
OF CONSULTANT PSYCHIATRISTS
In some cases
the Board may be unable to properly perform its statutory functions unless
it hears evidence from the consultant psychiatrist who heads the treatment
team. Decisions concerning the necessity for the consultant psychiatrist
to attend the Board hearing will need to be made by the authorised psychiatrist
or his/her delegate on a case by case basis, but the Board will expect
to hear evidence from the consultant psychiatrist in cases which are clinically
or legally complex.
6. CASE MANAGERS
In many
cases the Board may be assisted by the presence of the case manager. Where
possible, arrangements should be made for the case manager's attendance.
7. PROCEDURE
AT HEARINGS
The Board
will normally consist of three members. In some cases involving a yearly
review or the extension of a community treatment order, the Board may
consist of one member.
Board hearings
are relatively informal. Most cases will be conducted in the following
manner:
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The Board members will be introduced to all those present at the
hearing. The nature and format of the hearing will be explained.
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The issues of service of the Notice of Hearing and patient access
to the Report on Continued Detention and the clinical file will be
examined.
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The medical practitioner will be invited to speak to his/her written
Report.
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The Board members will question the medical practitioner.
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The patient will be given the opportunity to comment on the Report
and, through the Board, to ask questions of the medical practitioner.
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The patient will be given the opportunity to place evidence before
the Board and to respond to the Board's questions.
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The medical practitioner, through the Board, will be given the opportunity
to question the patient.
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If they are present, the Board may seek information from and ask
questions of a nurse, social worker, case manager, family member etc.
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Both the patient and the medical practitioner will be invited to
make any comments by way of closing summary.
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If the patient is legally represented, the representative will usually
be asked at the start of the hearing if they have any preliminary
submissions. They will later be given an opportunity to question the
medical practitioner and the patient and to make comments by way of
closing summary.
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All parties present will be asked to leave the hearing room so that
the Board may consider its decision.
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The Board will deliver its decision orally with brief reasons.
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A copy of the written decision will be given to the patient and the
medical practitioner.
Julian Gardner
President
10 March 1998
GUIDELINES FOR ENSURING COMPLIANCE
WITH THE RULES OF
NATURAL JUSTICE
PATIENT ACCESS
TO CLINICAL FILES
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As a general rule, Board members should ensure at the commencement
of the hearing that patients have been afforded access, prior to the
hearing, to the Report on Continued Detention and the clinical file
produced to the Board. Where access has not been given, on the ground
that the clinical staff of the mental health service consider that
the patient is unable to understand the contents, the Board should
satisfy itself that this is the case before conducting the hearing.
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There may be instances in which clinical staff from the mental health
service object to the disclosure to the patient of certain information
on the file. It may be that disclosure of information may cause serious
harm to the patient's health, or the health or safety of another person,
or involve the unreasonable disclosure of information relating to
the personal affairs of any person, or breach a confidentiality provision
imposed by the person supplying the information. In such cases the
authorised psychiatrist should apply to the Board under s26(8) of
the Mental Health Act 1986 (the Act) to deny the patient access to
particular materials before the commencement of the hearing. Such
applications should be heard and determined in the absence of the
patient, but if the patient is represented, the patient's representative
should be present if he or she gives an undertaking to the Board that
the patient will not be told about the material if the Board makes
an order for non-disclosure.
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Copies of the President's Practice Direction 98/2 should be distributed
to members of mental health service staff who are not familiar with
the requirements concerning patient access to clinical files.
RELATIVES'
ACCESS TO CLINICAL FILES
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As a general rule relatives or friends of patients should only be
given access to the clinical file when the patient has consented to
this course. However, there may be instances sanctioned by s120A(3)(ca)
of the Act in which information can be given to a guardian, family
member or the primary carer of the patient if the information is reasonably
required for the ongoing care of that patient, and the person being
given that information will be involved in providing that care.
ATTENDANCE
OF RELATIVES AND FRIENDS AT BOARD HEARINGS
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As a general rule relatives and friends of patients should not be
permitted to be present throughout the entire hearing without the
patient’s consent.
In those cases where the patient is unable by reason of his or her
condition to give consent to the relatives and friends being present
throughout the entire hearing, the Board should determine whether,
and to what extent, they are present, having regard to the best interests
of the patient.
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Cases may arise in which the Board wishes to hear evidence from the
relatives or friends of a patient, and the patient has objected to
the presence of those persons at the hearing. In such instances the
Board should invite that person into the hearing room to give evidence
at an appropriate time. When that person has given evidence, he or
she should be requested to leave the hearing room.
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It is the responsibility of mental health service staff, with the
patient's consent, to inform interested relatives and friends of the
date of a Board hearing. This matter is referred to in the document
titled "Information for authorised psychiatrists and for all
medical practitioners appearing before the Mental Health Review Board",
dated 10 March 1998. The Board may, of course, adjourn a hearing in
order to secure the attendance of a relative or friend of the patient,
but staff should be encouraged to anticipate those cases in which
the Board will wish to hear from a relative or friend.
NON-ATTENDANCE
OF THE PATIENT AT A BOARD HEARING
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When a patient does not attend the hearing, the Board should satisfy
itself that the patient has, of his/her own free will, made the decision
not to participate in the hearing. In the case of an inpatient, this
may be done by one member of the Board visiting the patient on the
ward, or by hearing evidence from a staff member of the mental health
service.
Julian Gardner
President
10 March 1998
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