QAI Submission: Recording Mental Health Review Tribunal hearings

The Mental Health Review Tribunal is conducting a project regarding the Electronic Recording of Tribunal hearings. They asked for feedback from patients, support persons, legal representatives, advocates, clinicians, family members and carers, or anyone else about how they feel about audio recording Tribunal hearings. Up until now, the only official record taken of the hearing has been the handwritten notes of the Tribunal members.

QAI made its submission on 11 March 2019.

We submitted that Tribunal hearings should be audio recorded for the following reasons:

• To ensure an accurate record of proceedings;
• To assist Tribunal members with the preparation of a statement of reasons and improve their quality. The large number of hearings, the similar nature of successive case details, and reliance on personal memory and handwritten notes can impede accurate recollection of hearings from which to prepare a statement of reasons, sometimes many days or weeks after the hearing has taken place;
• To assist in clarification of issues, even in the absence of a request for a statement of reasons, for example, discrepancies in limited community treatment conditions or reasons for an adjournment;
• To enable legal representatives to properly consider prospects of appeal, particularly where clients were not represented at the Tribunal hearing;
• To improve both Tribunal and legal representative engagement in hearings, who are currently occupied in taking detailed notes of the hearing;
• To improve client engagement and understanding of the process and their treating team’s reasons for making certain recommendations, which may ultimately improve their recovery;
• To facilitate natural justice and transparency;
• To support training and professional development of Tribunal staff.

Our recommendations were that:

QAI’s position is that Mental Health Review Tribunal hearings be audio-recorded.

This change to Tribunal process must be accompanied by education for patients about why proceedings are recorded and how that recording may be accessed and used. This education has to occur long before the hearing and will likely have to happen through clinicians, Independent Patient Rights Advisors, and legal advisors.

Patients (and their legal guardian) should, at least to begin with, have the ability to opt out of having their hearings recorded. While there was a difference of opinion between lawyers whether recording hearings was an access to justice issue which could not be opted out of, ultimately, the balance of opinion was that given the Tribunal was a therapeutic jurisprudence in which sensitive issues were being raised in a closed hearing, the patient should have the right to choose whether their hearing is recorded provided they have capacity to do so. In circumstances where the client lacks capacity, it may be appropriate for the Tribunal to rely on clinical evidence on whether recording hearings would cause serious harm to the health of the person, similar to a confidentiality order. It is noted that as time goes by, and recording hearings becomes more understood, accepted and widespread, this will become less of an issue. The ability to opt out might be limited to an initial 12-24 month roll out period following which recording hearings becomes compulsory.

At the least, recordings should be available to the Tribunal panel, the parties to the hearing, their legal representatives and any formally appointed guardian/attorney. There may be a case for allowing other people to have access to the recording, for example, the treating team or a non-legal representative, subject to the reason for the request and person’s privacy.

Recordings should be provided to the patient (and their legal representative and guardian/attorney) for free or at nominal cost.

There needs to be a clear written process for requesting and obtaining recordings. The process must include: any time limits on requests (we submit any time limits should be generous and based on genuine administrative limitations or burdens, which can be overcome by a legitimate reason for requesting the recording); and timeframes within which the Tribunal must respond to requests.

Audio-recordings should be available in a variety of formats to maximise accessibility and privacy, eg, deaf clients may need a transcription, while some clients might want to just listen to their recording so that they do not have to keep a CD with them.

We would support the provision of oral statements of reasons included as part of the audio recording of the hearing, to take place of written statements of reasons.