Application of rights analysis instrument to Australian mental health legislation
Indicator 6 - Involuntary review/appeals process
- The Northern Territory was assessed to be in total compliance by fully meeting the requirements in this Indicator. Victoria and New South Wales were assessed in the substantial quadrant. Western Australia was in significant/substantial compliance. Tasmania, South Australia and the Australian Capital Territory were assessed in the significant quadrant. Indicator 6 was the Indicator that third most fully met the criteria in the UN Principles on assessment.
- Four jurisdictions fully met the requirement in Indicator 6A. In the other jurisdictions lesser compliance was assessed because of limitations on the right of appearance of consumers at their hearing - it was subject to not being detrimental to applicants' health, risking serious harm to others or disrupting proceedings. All jurisdictions fully met the requirements for Indicator 6B - it relates to the right to request and produce independent evidence at the hearing. Five jurisdictions fully met the criterion for Indicator 6C that requires the right to request the presence of a nominated person in the review process. One jurisdiction limited the right to the "person responsible", ie next of kin. Another jurisdiction automatically limited the right to appear and give evidence to other designated persons, such as the community advocate and the discrimination commissioner, but enabled other persons to appear and give evidence with the leave of the tribunal. One jurisdiction queried the use of the term "expressly or impliedly" in the question in this Indicator - it refers to practice of open courts where, by implication, there would be no limitation on any person attending a hearing.
- The National Panel considered that the Northern Territory had the best legislative practice for Indicator 6D. It fully complied with the requirement that consumers be advised of their right to request and receive copies of records/documents for the hearing, and went beyond the UN Principles, by automatically giving information to consumers (ie dispensing with the need for them to be informed of the right to request). Other jurisdictions at least recognised the substantive right, but often failed to inform consumers of it, or did not make it operate practically by granting access through giving or allowing copying of the documents. One jurisdiction allowed the right to inspect or otherwise have access - in practice this was interpreted as taking copies, so were in substantial compliance. In other jurisdictions there were no express rights, however there was separate legislative provision under Freedom of Information (FOI) legislation which is already referred to in Indicator 8D. To be consistent, in the absence of specific protection and promotion of these rights, this did not count towards compliance. However, the presence of a specific requirement in mental heath legislation to follow the rules of natural justice, which include knowing the case against oneself, was assessed as being in half compliance in this Indicator. The National Panel recommends that a specific question be added to the Instrument regarding the application of the rules of natural justice in review hearings, even though this goes beyond the obligation in the UN Principles.
- Three jurisdictions fully complied with Indicator 6E which requires three criteria to be taken into account when deciding to have closed or open hearings, as well as requiring reasons for such decisions and judicial review. The format of the Northern Territory legislative provision was the simplest to understand and implement. Automatic decisions about closed or open courts can never fully satisfy the relevant criteria. For this reason pre-determined compliance ratings were allocated for closed or open hearings, but with the ability to increase compliance by including these additional factors in the process. Some jurisdictions added flexibility to a presumption of closed or open hearings with the ability to rebut, by having regard to the specified factors.