It is the tribunal that has one of the most sensitive roles in the state’s health and justice systems — overseeing the treatment of mental health patients, with the power to order their confinement and medication with electro-shock therapy.
- The Mental Health Review Tribunal president says the study “does not provide a fulsome picture”
- The study found some patients facing electro-shock therapy orders may only get 30 minutes to appear
- The author of the peer-reviewed study is standing by his work
But despite its significant powers, its hearings are closed to the public, its judgements are not published and those who appear before it cannot be identified.
Now a new study has put the Queensland Mental Health Review Tribunal (MHRT) under scrutiny and raised concerns about the way it oversees the treatment of patients.
Key among issues highlighted are that some patients facing electro-shock therapy orders may only get 30 minutes to appear before the tribunal to dispute the order.
The study also suggests the tribunal was seen by some to be over-reliant on recommendations from the patient’s treating doctors.
It also suggested patients’ fears about the side effects of involuntary treatments are not being given enough consideration by the tribunal.
The criticisms have been rejected by MHRT president Annette McMullan, who has questioned the methodology and findings of the study authored by Brisbane academics Dr Sam Boyle, Professor Tamara Walsh and researcher Lucinda Nelson.
Ms McMullan, who has both legal and nursing qualifications, said the study was limited in its scope, relying on interviews with only those who represented or provided advice to persons appearing before the tribunal.
Hearing length ‘low compared to overseas’
Thousands of patients appear in private before tribunal panels each year, to be judged on everything from whether they should be forced to undergo specific treatment regimes to when they should be allowed to leave hospital.
The panels, which are drawn from a pool of about 100 tribunal members, also conduct ongoing monitoring of the treatment of patients who have committed serious crimes like murder and been found unfit for trial and have in some cases been released back into the community.
Among the tribunal’s most controversial roles is the power to order patients to undergo electroconvulsive therapy (ECT) — a treatment that involves sending a current of electricity through a sedated patient’s forehead into their brain to cause a seizure and is often used to treat severe depression.
Being told of concerns about the tribunal’s operations prompted Dr Boyle and Professor Walsh to launch a study into the tribunal and how its operations might be affected by newly implemented Queensland human rights laws.
Based on interviews with dozens of lawyers and advocates who represent and advise clients appearing before the tribunal, the academics examined the issue of how long the tribunal hearings were being given to decide whether to compel patients to undergo involuntary treatments.
The study said longer hearings were desirable and sometimes necessary to ensure tribunal members had time to interrogate the treating team’s reports, engage closely with clients’ concerns and seek other sources of evidence.
But the study did note the pressure on the tribunal to resolve cases in the context of limited resources.
Concern tribunals ‘rubber stamping’ recommendations
Another concern raised was whether tribunal panels were just “rubber stamping” the recommendations of the patient or client’s treating team.
The study said participants believed tribunal members relied almost exclusively on the evidence of the treating team in decision making.
They said the evidence of the treating teams “was treated as gold, that it occupied the field and there was no contest to the conclusions presented in the clinical reports”.
If other medical evidence was presented, participants believed the tribunal could reach a different conclusion, the study said.
The study suggested there were implications in human rights laws about the rubber-stamping approach, with overseas human rights legal decisions highlighting the importance of independent and impartial decision making.
Side effects of treatments
A third major issue raised was patients’ concerns about the side effects of treatment not being considered during hearings.
The study found that where side effects were thought to be harmful by the client, but the treating team believed them to be appropriate, the tribunal should require additional justification in ordering the treatment.
This was to avoid breaching human rights laws.
It concluded that “if the views of our participants are accepted then changes might be required of the tribunal’s decision-making processes to ensure they complied with legal obligations”.
Study ‘does not provide a fulsome picture’
In response to questions about the study’s conclusions, Ms McMullan provided the ABC with a detailed rebuttal of the concerns.
She said the study was limited in its scope with no insight into whether the sources of the study’s information regularly appeared before the tribunal.
Ms McMullan said by restricting contact to just the representatives, it had failed to consider the opinions of representatives of the Attorney-General, the chief psychiatrist, treating teams, personal guardians and the patients themselves.
Ms McMullan said that the time allocated for a particular hearing depended on a range of factors and was not “a simple one size fits all”.
She said consideration was given to how long the matter took previously, recommendations from previous panels, the number of participants and whether an interpreter was required and whether the hearing involves a minor.
“The time that members spend considering the written documents prior to the hearing is in addition to the time spent obtaining oral evidence at the hearing,” she said.
Ms McMullan said the MHRT was confident that when hearings were scheduled for 30 minutes, the time was sufficient for the MHRT panel to obtain the necessary oral evidence to make its decision.
“However, if a panel finds that more time is required the panel is entitled to adjourn the hearing for a period of not more than 28 days to allow additional hearing time to be scheduled,” she said.
“The allocation of 30 minutes is consistent with the range of times set by other interstate mental health tribunals in Australia.”
Ms McMullan said “where possible” longer than 30 minutes was allocated for such hearings, “having regard to the individual circumstances of each matter”.
“Again, material relevant to the hearing, is provided to the MHRT panel members prior to the hearing and time considering the documentary evidence is in addition to the hearing time,” she said.
Ms McMullan said holding hearings for half a day would require significant resources at significant costs to the state government and require consultation and collaboration between the MHRT and Queensland Health.
She rejected claims that the MHRT was not fully taking into account the side effects of treatments.
She said finding an appropriate treatment for a person that provides optimal efficacy while minimising side effects was a matter for the treating team, not the MHRT.
Claims that the tribunal was “rubber stamping” treating doctors’ advice was incorrect, she said.
“The MHRT executive believes the MHRT members would be disappointed to hear that their integrity and professionalism was called into question in this way.”
Author stands by study
Dr Boyle this week stood by the study, which was peer reviewed and published by Oxford University Press in March.
He said the decisions the tribunal makes were “incredibly important”.
“They are as serious as the results of a criminal trial,” he said.
“When we decide when somebody is guilty of a crime, we can spend days and days reaching a verdict and for good reason.
“People appearing before the Mental Health Review Tribunal can be detained and treated against their will.
“This is as serious as an outcome as for those subject to a criminal trial.”