The requirement to provide access to documents
For fairness, the Mental Health and Wellbeing Act 2022 (MHW Act) requires the health service to give the patient access to documents ‘in connection with’ a Tribunal hearing at least 2 business days before the hearing.
An exception to this is that a psychiatrist may apply to the Tribunal to deny the patient access to a particular document or documents because disclosing them may cause serious harm to the patient or another person.
Documents that need to be provided – what documents are in connection with a proceeding?
The documents that are always connected with the proceeding and need to be provided unless there is an application to deny access to documents are:
The relevant hearing report: This is the report that the Tribunal requires the health service to prepare before the hearing. The Tribunal has practice notes and templates on its website to assist health services to prepare these reports.
Copies of relevant Orders that establish the Tribunal’s jurisdiction: these are the current Order to which the patient is subject and, if the patient is subject to a Temporary Treatment Order, the Assessment Order.
Specified documents on the current volume of the patient’s clinical file (if these documents exist). These are:
- Latest discharge or admission summaries
- Consultant notes in date order for the last three reviews
- Notes from registrar/medical officer reviews in date order during the three months prior to the hearing
- Notes from case manager reviews in date order during the three months prior to the hearing
- Nursing notes for up to a month preceding a hearing held during an inpatient admission
- Advance Statement of Preferences
- Nominated Support Person form
- Second psychiatric opinion report
- Correspondence from private/specialist practitioners or general practitioners
- Forensic, social work, occupational therapy, psychological and neuropsychological reports
- Any reports related to additional therapeutic interventions offered by the service
- Information about non-clinical or community supports involved in the person's care
- CMI records
- Any other documents which the treating team believes are relevant to the hearing.
Documents which may be connected with the proceeding depending on the circumstances – ‘general documents’
Documents concerning the patient’s mental health treatment on the current volume of the patient’s clinical file that are not listed above are called ‘general documents'. Whether general documents are connected with the proceeding depends on whether the health service intends to rely on them at the hearing – that is whether the health service needs to rely on the contents of the documents to support the making of a treatment order or ECT order.
Where the health service intends to rely on general documents
If the health service wants to rely on any general documents in the hearing to support making a treatment order or ECT order, those documents are ‘connected to the proceeding’. This means that the health service will provide the documents to the Tribunal, and therefore must also give the patient access to these documents unless the patient’s psychiatrist believes that the serious harm test is met. If so, the patient’s psychiatrist must apply to the Tribunal for access to be denied to the patient. In the period leading up to the Tribunal hearing, the health service can remove or redact the documents from the file.
Where the health service does not intend to rely on general documents
If the health service does not intend to rely on general documents because the content of the documents is not needed to support the making of a treatment order or ECT order or is covered in other documents, the health service can remove or redact these general documents without asking the Tribunal to deny the patient access to documents.
However, the health service must inform the Tribunal, the patient and, where applicable, the patient’s legal representative, that documents have been removed or redacted. In these circumstances neither the patient nor the Tribunal will have access to these documents. If they wish, the patient can make an application under the Freedom of Information Act 1982 (FOI Act) or the Health Records Act 2001 (HR Act) to see these documents.
Applications to deny access to documents
A psychiatrist can apply to the Tribunal to deny a patient access to documents by completing the Tribunal’s Application to deny access to documents (MHT 30) form.
The completed form must be returned to the Tribunal’s registry via email to registry@mht.vic.gov.au at least 2 business days before the hearing date unless special circumstances apply (such as where the hearing concerned was listed as an urgent ECT hearing).
When the Tribunal receives an application to deny access to documents (MHT 30) it will schedule a hearing for the application before the main hearing.
Patients are not allowed to attend hearings about applications to deny access to documents but are notified of the hearings so they can arrange for a legal representative to attend for them.
Frequently asked questions
The right to access documents under the MHW Act only applies when there is a pending hearing. This means that the Tribunal registry has listed the hearing. A patient’s right to access documents under the MHW Act is separate from any rights they have under the FOI Act or the HR Act. This means a patient is not required to apply for access to documents connected with a pending hearing under the FOI or HR Act.
The MHW Act says that the health service must give the patient access to documents in connection with the proceeding at least 2 business days before the hearing. This means that the health service does not have to provide access any earlier than this (although it may do so).
The part of the MHW Act on access to documents only gives the patient the right to access documents. It does not say that nominated support persons or carers have any right to access documents. However, carers or nominated support persons may look at documents in connection with the hearing if the patient is happy for them to do so.
If there is no pending hearing, patients who wish to access their health information must apply to the health service under the FOI Act or the HR Act. The Tribunal is not involved in these processes.
Yes, if the documents are:
- documents that will always be connected with the proceeding – i.e. the hearing report, the copies of relevant orders that establish the Tribunal’s jurisdiction or a specified document, or
- general documents that the health service intends to rely on at the hearing and the patient’s psychiatrist believes that the serious harm test is met.
A patient’s right to access documents under the MHW Act is separate from any rights they have under the FOI Act and HR Act. This means that notations in the clinical file that a document is ‘FOI exempt’ or similar do not mean that the patient cannot access these documents under the MHW Act.
When an application to deny access to documents has been made but not yet heard
Where the health service has made an application for the Tribunal to deny access to certain documents, in the period between making the application and the Tribunal hearing the health service may remove or redact those documents from the file or otherwise not give the patient access to these documents. The Tribunal will then consider the application and may decide to grant the application or refuse the application to deny access (in which case the patient will be allowed to look at the documents).
When there is no application to deny access to documents
The health service can only redact or remove documents without making an application to deny access, where:
- the documents are general documents and
- the health service does not intend to rely on these general documents in the hearing.
If a health service does remove or redact documents they must let the Tribunal and the patient’s legal representative (if there is one) know they have done this.
For the avoidance of doubt, the patient’s psychiatrist may not withdraw an application to deny access to specified documents because they do not intend to rely on them. This is because such documents will always have the relevant connection with the hearing whether or not the psychiatrist intends to rely on them.
The MHW Act requires the Tribunal to be satisfied that disclosing the document to the patient may cause serious harm. It does not have to be satisfied that disclosure would or would be likely to cause serious harm. In considering the serious harm test, the Tribunal will take into account the considerations in the list below. This list does not cover all of the things which the Tribunal may consider as this will depend on the circumstances of the case.
- ‘Serious harm’ may include a hurt, injury or damage that is important, demands consideration, is very considerable, or is significant (not slight, negligible or incidental)
- Potential harms that alone may not be sufficiently serious to demand consideration, might amount to serious harm when combined or taken together
- The Tribunal may also take into account:
- the psychological and physical health and wellbeing of the patient or another person (however, serious harm is not
necessarily limited to physical or psychological injury).
- prejudice or damage to the patient’s prospects of successful treatment or recovery.
- prejudice or damage to relationships with persons who may support the patient’s recovery.
At the beginning of the hearing the Tribunal will generally ask the patient and the health service whether the patient has been able to access information in accordance with their rights under the MHW Act and the procedure in the practice note. The Tribunal expects the health service to give the patient the clinical report and help them to understand what it says. In addition, the Tribunal expects the health service to ask the patient whether they would like to access the other documents that it will provide to the Tribunal at or before the hearing.
If the health service has not given a patient access to documents in accordance with the MHW Act and the Tribunal’s practice note, the hearing may not be able to proceed. Whether it does or not will depend on whether the Tribunal considers that there can still be a fair hearing. An important consideration for the Tribunal will be the views of the patient, including whether they wish to read the documents that are connected with the proceeding. The Tribunal will also consider whether it was possible to provide access at least 2 days before the hearing and, if not, the reasons why it was not possible. Some examples where this may not be possible include when:
- the hearing involves an urgent application for ECT
- the patient or their lawyer has asked to see the documents to be provided to the Tribunal on the morning of the hearing (or otherwise less than 2 business days before the hearing) where the patient had earlier indicated that they did not wish to access them.
The Tribunal will consider the application to deny access to documents in a preliminary hearing that takes place before the hearing to discuss the main issues.
Preliminary hearing
The patient does not attend this preliminary hearing; however, their lawyer (if they have one) may do so. The Tribunal will also allow the lawyer to see any documents that the Tribunal views so long as the lawyer undertakes not to tell the patient what is in the documents.
At the preliminary hearing the Tribunal will ask the treating team to say why they believe the serious harm test is met.
Tribunal’s decision
After considering the issues, the Tribunal will either decide to grant the application (if it is satisfied that the serious harm test is met) or refuse the application (if it is not satisfied that the serious harm test is met).
If the Tribunal grants the application, this means that the patient cannot view or have a copy of the document(s).
If the Tribunal refuses the application, the Tribunal may order the health service to give the patient access to the document(s). It may also adjourn the hearing and extend the duration of the Order that the patient is currently on for up to five business days. This will give the patient time to access the documents(s) and prepare for the hearing. Alternatively, the Tribunal may decide to have a short break to allow the patient to view the document(s) before starting the hearing.
No. The health service cannot rely on a determination by a previous division of the Tribunal to apply in the future. A Tribunal decision under the MHW Act to grant an application to deny the disclosure of particular document(s) only applies to that particular hearing. If another hearing for the same patient is listed and the patient’s psychiatrist still believes that the serious harm test is met, they must apply to the Tribunal again.
No. The Tribunal does not have the power to consider a document without disclosing that document to the patient except when it receives an application to deny access to documents from the patient’s psychiatrist. Only the patient’s psychiatrist can ask the Tribunal to deny the patient access to a document or documents. This means the Tribunal cannot decide to deny access if it has not received an application from them.
For this reason, the Tribunal’s registry will not accept any document marked ‘confidential’, ‘private’ or ‘for the attention only of the Tribunal’ from carers, family members or other persons connected with a patient. The Tribunal’s registry will advise the sender of this and tell them to contact the patient’s treating team to discuss whether and how the documents can be provided to the Tribunal. The Tribunal’s registry will not forward such correspondence to the health service.
Similarly carers or family members cannot give the Tribunal documents that they wish to remain confidential on the day of the hearing.
The only grounds for deciding that a patient cannot have access to a certain document or documents connected with their hearing is that disclosure of the document(s) may cause serious harm to the patient or another person (i.e. the serious harm test). It may be that the Tribunal concludes that the serious harm test is satisfied in cases where a person provided information confidentially. However, this will not necessarily be the case. The Tribunal’s focus is on the serious harm test and not on whether the person providing the information wished it to be kept secret from the patient.