FAQ – for Lawyers about working with clients with mental illness

Question – What happens if my client’s capacity fluctuates during an interview to get instructions?

Answer – If you feel the client is upset or distressed during the interview, cannot follow the conversation or understand questions, or is simply not wanting to engage in the interview, consider making alternative arrangements to reschedule the interview when the client might be feeling better. Ask the client when a good time for them to talk about their matter is, do they prefer morning or afternoon, or do they prefer in person or over the telephone?  Sometimes after taking prescribed medication, the client might feel in a position to talk about their matter and give instructions at a later time.


Question – What happens if my client’s capacity fluctuates during MHRT attendance?

Answer – If a client’s capacity fluctuates at the MHRT and they say something which might be different to their original instructions or different to the submissions you have prepared on their behalf, consideration should be given to requesting an adjournment of the hearing or asking the MHRT if the matter can be stood down temporarily to enable you an opportunity to check the client instructions and clarify with the client before proceeding.


Question – My client disagrees with their diagnosis. How do I effectively advocate for their views?

Answer – As the legal representative of the client our role is to represent and advocate for the client’s views, wishes and preferences based on their instructions. If a client disagrees with their diagnosis and says e.g. I do not have a mental illness, then that is what the legal representative should convey to the Tribunal. It is also worthwhile letting the client know that they can also ask for a second opinion regarding their diagnosis from their doctor if they want pursuant to s 290 of the Mental Health Act 2016 (Qld) (“the Act”).


Question – In what areas can more assistance be provided to the client when representing them?

Answer – It is always good practice to check with the client if they want you to ask questions of the treating team at the hearing. Even though the Tribunal does not interfere with treatment decisions, lawyers can always ask the treating doctor present at the hearing questions regarding the client’s treatment with permission from the legal member. This is especially helpful where the client’s appointment with the doctor has not happened in a long time.

If the treating doctor is not present at the hearing, then depending on the instructions from your client it can also be appropriate to ask for an adjournment.  This is particularly relevant if significant changes are being sought and to allow an opportunity for the legal representative to ask the doctor questions at the hearing.


Question – When should the client act independently for themselves?

Answer – In areas concerning treatment and medications, it is always best to advise the client to discuss it with their treating team. If the client would like you to present information about medication and treatment at the Tribunal then you should do so while also letting the client know that the Tribunal are unable to make specific decisions about treatment and medication.

There is a self-report form available on the MHRT website and provided to the client with the Notice of Hearing which the client can complete and present to the Tribunal at least 3 days before the Tribunal hearing regarding any concerns that the client wants to address.


Question – What expectations will I generally have to manage when dealing with clients as part of the Mental Health system?

Answer – The Tribunal operates independently of the client’s treating team. The treating psychiatrist is not a party to the hearing, but is an expert witness to provide evidence about the client’s treatment and care needs and recommendations about what is clinically appropriate in terms of the client’s treatment and care needs. Sometimes a client would like their order to be revoked despite the treating team’s recommendation to confirm their order based on the client’s treatment and care needs. It is important to manage the client’s expectations and advise the client that you will represent their views, wishes and preferences so they can put forward their views to the Tribunal but also provide them with relevant legal advice about the legal criteria that needs to be met to have an order revoked in accordance with the Act and how they can work towards their goals in the future.


Question – Are the fiduciary duties I owe to a client in this area of law any different from a person without a mental illness or disability?

Answer – No, they are the same.


Question – What are the best documents to read prior to interviewing a client with a mental illness in preparation for a Tribunal hearing? What does my client need to read?

Answer – The clinical report (CR) is the best document to read prior to interviewing a client who has a hearing before the MHRT in preparation for a Tribunal hearing. Lawyers must ensure that the CR is the most recent report prepared by the treating psychiatrist for the hearing and that a copy has been provided to the client at least 7 days before the hearing as required under the Act. In addition to the CR, the other documents to consider are any CFOS reports, ARMC minutes and documents that have been provided by the MHRT if a decision was made by the Mental Health Court (if any). The client is required to read or have the report explained to them prior to the hearing.


Question – What are the important deadlines in the Mental Health system to remember while preparing for a Tribunal hearing?

Answer – The client needs to have received the most updated CR at least 7 days prior to the MHRT hearing. Under the Act, a hearing can be adjourned for another 28 days if the clinical report is not received within the 7 day timeframe.


Question – What tips should I use when dealing with a client that has a mental illness who also has linguistic or cultural challenges?

Answer – If a client cannot understand English then steps should be taken to ensure an interpreter (TIS National) has been booked so that the client can understand the MHRT hearing process and give you instructions. Lawyers have to be sensitive to cultural issues. Clients may come from diverse ethnic and cultural backgrounds which may affect communication. There may be considerable differences in the legal systems and principles in the client’s country of origin to that of Australia. While interviewing the client consider if a cultural factor could be an explanation for the client’s behaviour.


Question – If I have failed to receive instructions from a client, how should I go about acting in their best interests?

Question – What should I do if a client has been unavailable to give instructions before the hearing (for e.g. the client was not contactable)?

Answer – The lawyer should seek a short adjournment at the start of the hearing, requesting permission from the Tribunal, then have a chat with the client to get instructions.


Question – What should I do if the client appears to lack capacity to give instructions?

Answer –  The lawyer should check if the client has any views, wishes and preferences they would like expressed; whether the client has an advance health directive (AHD) which expresses any views, wishes and preferences; and if an attorney or guardian has any views regarding the client’s best interests.


Question – Is the Mental Health Tribunal bound by the rules of evidence?

Answer – Under s733 of the Act, the Tribunal is not bound by the rules of evidence but will inquire more broadly into the patient’s circumstances and the context in which the order was issued. It may inform itself in any manner it considers appropriate.


Question – When does the Attorney-General sends a representative to a Tribunal hearing?

Answer – A representative of the Attorney-General can only attend MHRT hearings which are to review a forensic order, review fitness for trial, or applications to transfer forensic patients in or out of Queensland. The Attorney-General can choose not to attend a MHRT hearing. In those cases, the client is not appointed a lawyer automatically and would depend on your capacity to assist.


Question – When does my role as a legal representative stop?

Answer – The legal representative role stops only after all matters post hearing have been dealt with or referred to the appropriate service which can assist.


Question – Is there a win in a Tribunal hearing?

Answer – Unlike courts, wins are seen differently in Tribunal hearings. It is not a failure if an order is confirmed. People with a mental illness who satisfy the criteria under the Act also have a right to treatment. The order may be the only way that he or she receives necessary treatment. Lawyers have an important role to play in assisting people to participate, understand and engage with the inquisitorial process and with their treatment. Through the hearing, the treating team may have a better understanding of the contextual issues facing your client and this can ultimately assist them.


Question – What documents are usually subject to legal professional privilege?

Answer – All documents encountered in representing a client is subject to legal professional privilege.


Question – Are there any other stakeholders apart from the Treating Team and Attorney-General that I need to be aware of when working for my client’s best interests?

Answer – The lawyer needs to be aware if the client has a guardian appointed from the Office of the Public Guardian. Further consideration also needs to be given to any appointed attorney or nominated support person.


Question – What does a client have to follow to get discharged or get their order revoked?

Answer – For TAs clients need to work with their treating team and follow their guidelines since they have the authority to revoke the TA. Further for orders like FOs clients need to be compliant with the conditions set by the treating team and engage in any rehabilitation programs as required which might lead to a step down like treatment support order (TSO) in the future.

Question – What can I do when my client’s parents, guardians or otherwise responsible individuals are being a nuisance?

Answer – A lawyer appears at the tribunal to represent the views, wishes and preferences of the client and that is the most important objective. It is important that you explain your role to family members without breaching your obligation of confidentiality to your client. You are there to advocate your clients’ wishes. Family members will be given an opportunity to express their views about what they think is in the client’s best interests at the hearing.

Question – If my client is going to be unrepresented at the hearing, what is the most important piece of advice to give them?

Answer – Explaining to the client the treatment criteria and the clinical report is the most important piece of advice that can be given to the client. Further the client should be encouraged to prepare a self-report and send it to the Tribunal regarding any areas of concern they want to bring up at the hearing.

References: Law Right, Mental Health Law Practice, Advocate Training Manual, 2017


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