I think the Board’s strength is being an independent body coming from outside the service. The other strength is the constitution of the Board - having a lawyer or a legal member chairing the Board, having a lay person on the Board giving the opportunity [for the consumer] to see people other than psychiatrists, and there are also independent psychiatrists on the Board . . .

Senior Psychiatrist

Obviously the [treating] psychiatrist is wanting to tell the fact of the mental health and symptoms of mental health . . . to be able to assess whether there is a mental illness or not. In that, all of the psychiatrists could also be reassuring and supportive to the person. That is why there is another psychiatrist listening to him or her in the interview [Board hearing]. So it is a therapeutic role in that, it is like a second opinion-type role. It is a very short second opinion but it has that purpose of reassuring the person about the situation itself and what is happening to him or her.

Senior Psychiatrist

One of the issues that I constantly have in hearings is I feel that they haven't done justice to the hearing. I mean a hearing's meant to be inquisitorial, so they're meant to ask questions and make inquiries and the number of times that no questions are posed to the doctor in the hearing! … You have a psychiatrist who sits on the Board who's meant to be a medical expert . . . And the evidence that's before the Board is what the [treating] doctor says, and a medical report, which is often really brief and really poor. So you would think that there would be some level of inquiry that should be undertaken in hearings to make sure that the diagnosis is justified, that the treatment is justified, you know, all of those things are really important and it's never – you don't see that really thorough level of inquiry happen at Board hearings.

Legal Representative

I think the level of inquiry, just the level of inquisitorialness, in terms of doctors justifying the diagnosis, justifying the treatment, justifying their conclusion that they will deteriorate. Those things are just not explored on any level and as an advocate you can raise them as issues, [but] you're not a medical expert, and it is the responsibility of the medical expert on the Board to take that up. But you don't see that, you see them kind of going through the motions because they have to. And I think that makes a difference in terms of how clients see the hearings as well. If they know that the doctor's been asked as many questions as they have, maybe they'll think they got a fairer hearing.

Legal Representative

No I think we should have a psychiatrist sitting all the time. I don't think they're so dominant in terms of the decision-making process or the dynamics as you might fear. I think they often feel a bit out on the edge because . . . if there's going to be a split, it's more likely to be lawyer and community person against the psychiatrist. So I think they play a really important role. Sometimes the problem is that I don't think they shed their collegiality as readily as perhaps they should, sometimes, and they are more prepared to divert colleagues than is ideal.

Board Member (Legal)

. . . for the most part I think psychiatrists are loath to overturn their colleagues’ decisions, I think that is a phenomenon, but I think the lawyers and the community members don't feel that same imperative, so there's a balancing out of what would otherwise be an inclination to show over-much deference to clinician decision-making.

Board Member (Legal)

It’s often the psychiatrist who enables the more effective challenging of the psychiatric authority. As long as they're playing that role properly and independently it's really good, because often enough I'll be saying, 'Oh look I just don't like the look of that, it's not making sense to me' and if the psychiatrist comes in and says 'well there's good reason for that, it's rubbish', it's very fortifying. On other occasions the psychiatrist will informedly say 'Look, you might think that, but this is a really common sort of presentation in this kind of situation'.

Board Member (Legal)

So the main evidence is the report and the file and other evidence is even more important, what the people have to say, especially the patient and anyone who is with the patient, like the patient's advocate.

Board Member (Community)

What access do you think they should have to their case information? The right to inspect documents, case file, doctors’ reports, that sort of thing.

I think the Act sets up a general proposition of up to 24 hours but I think in practice it should be as much as is needed for the individual’s case. I think the reality is again that some people like to thoroughly review those things, others couldn’t care less to see their files. That seems to be reflected by what I hear when I talk to people about it. But the fact that that’s true doesn’t make the rule right or wrong. I think the rule has to apply.

I think in the area of all health and certainly in the area of mental health it’s fraught with some difficulties because the files you know, contain lots of information which is in a sense third hand and historical and, you know, revisited historical files are tricky and they’re problematic and so I don’t know if there’s a right or wrong answer.

I mean there’s certainly some incongruity between the strict rules of procedural fairness that involve having access to the same information as the decision maker has and what are the normal bounds of doctor / patient or provider / patient sort of processes. I don’t think they are often a big issue and the Act does allow for them anyway. I know that they’re not something we deal with regularly to be honest which probably reflects that it’s only occasionally a real problem.

But I think certainly in terms of the attitude of service providers that’s slowly changing but it’s been a long hard road. They see it, they see files very differently to . . . a rights lawyer and probably most patients see them. The truth is that I think historically patients haven’t really had much opportunity [to view their files] . . . I would suggest so it is most probably more of problem for the lawyer.

Board President

The hearing itself can be therapeutic to some patients but unfortunately for a lot of others it is not and some find it a very traumatizing experience, some find it a very unpleasant experience . . . Part of the documentation of appearing before the Board is the documentation prepared by the medical staff regarding the reason for detention or applying the involuntary status. That document is supposed to be given to the patients two hours before the Board hearing, the problem is that that document contains all the materials [about why clinicians view involuntary treatment as necessary].

Obviously the problem is time and how busy people are and all these sorts of things and in reality you end up having that document presented to the person just an hour before they arrive. I think that the information in this document needs to clearly be discussed with the patient . . . The medical board can be part of the treatment plan rather than against it. So that all patients get the benefit of that rather than it becoming a traumatizing experience to the patients.

Senior Psychiatrist

[I believe that hearings could be improved by having]… a booklet given to patients about the role of hearings and what is expected of them in very simple language. There should be a video produced that actually shows the patients what they should expect from a hearing. I think patients who are due to appear before the Board should be taken to the room where the Board will come and just have instructions as to where they will sit. I think that the document written about patients should be given to the patients and the staff long in advance of the hearing. This is an important thing. I think patient's relatives should have enough warning about Board hearings and that people are not notified an hour before or the day before. The Board should organise themselves and should be available. I think that the session itself needs to be much more therapeutic and reassuring to patients and have some values coming out of it to show the patients, apart from just simply saying where they will stay. It should be much more than that.

Senior Psychiatrist

I think there is a lot of information around but I’m not always convinced the information is in the forms that are best for people.

Where I have concerns, if that’s the right word, is . . . that we’ve got out a lot of written information, the Department puts out a lot of written information, the Legal Centre’s put out information, I mean there is plenty of information around, but whenever I talk to groups and whenever I talk to services I mean the level of knowledge is not always as good as what you would expect given that level of information.

So one of the issues, obviously, is about the digestible forms of information that are right for people at particular points in time. Some of that’s related to the nature of people with a mental illness at different stages of their illness, some of it’s related to the sorts of people that are involved in this jurisdiction; and some of it’s simply related to the nature of the information we’re trying to put across. So I guess what I’m saying with my concern is that I’m always trying to find ways of giving information successfully and I don’t think we’ve come to the 100% point on that, we’ve certainly done better I think in recent times than we perhaps did in the past.

Board President

The important elements [of any hearing] are the introductory welcome, the explaining of the purpose, [ensuring] the person has actually seen the medical report, had access to their files.

Board Member (Community)

I think that the patient needs to be made to feel that this is their hearing, that they are the centre and what they have to say is extremely important.

Board Member (Community)

[As to the public’s perception of the Board’s independence or otherwise] I think even in communications from the Board it probably needs to be highlighted, emphasised more that the Board's not part of the clinic, the hospital, whatever. I think it's got to really come out with a flashing light in written brochure type things and in the initial communications from the Board and it needs to be said every time at the start of every hearing, and I gather it's variable in terms of Chairs emphasising that to people. Actually I don't think I did say it every time, I've taken to in more recent times, of making sure that people know that we're not part of the place we are attending.

Board Member (Legal)

You need to keep it very simple, it is about short sentences. It is about not a lot of explanation about the law, it’s about being clear about who we are, what our role is, what the role of the Board is and gathering the evidence in that total way, so that it does not get on a train and the train carries the information away, the person is left beside or behind. So it is making sure that the person is given every opportunity . . . to be involved in the process.

What I often ask people is have they been before the Board before? Some say, “Yes, two or three years ago.” I say, “This is the way I like to do it - I am a legal member, I chair what happens today. This is what I like to happen.” And it depends on the patient, sometimes I talk about the law in terms of the Chair, rarely do I say what the five [criteria for being made an involuntary patient] are - that is not helpful . . . [I would explain] what the hearing is about, and about treatment options [open to the Board] . . . and that is as much some can accommodate. You need to maximise the opportunity for people to participate or be involved [and] that can be by talking a lot or not very much, because they can also be involved [by] listening. It is about being attuned to those sorts of things.

Board Member (Legal)

I've actually had Boards say to me it's our practice to hear from the psychiatrist and ask some questions and at the end if you wish to make any submissions you'll have your opportunity then. And they don't like you even assisting the client with so much as understanding a question for example or referring to something that you may have explained to them during the course of the interview before the hearing. They get really upset. Because I almost get this feeling that there's some sort of idea that we lawyers are there to trick the Board and to somehow tell this psychiatric patient what they need to say in order to look sane and the Board will somehow be tricked into making the wrong decision.

Legal Representative

When I know they will be very disappointed with the outcome, it is about engaging the person and ensuring that they understand the decision we have reached. It is about encapsulating all the evidence we have heard, what we have thought about, what was on the file, what the submissions were if the person was represented and, coming to the decision, [explaining] why we came to that decision. I do think it works to give positive feedback . . . while giving a decision: that the person has come a long way since they first came into hospital and, particularly where they are getting good care, that the doctor has performed well in the hearing, the doctor has said these sorts of things, I hope they will happen, wish you well . . . those sorts of things . . . [can be said to], surround the disappointment . . .

Board Member (Legal)

I actually almost think that the way that it's [the room] even just set up. So we all sit on one side of the table, they all sit on the other side. The doctor doesn't talk to the client, the doctor talks to the Board members. The lawyer talks to the Board members. The client talks to the Board members. So there's no actual interaction between the doctor and the client. Or the lawyer and the client. And I think that makes a difference. I don't know if even just a round table would make a difference as opposed to how it's set up. In terms of ritual, I think that thing about the psychiatrist member and community member also interacting with the client is quite important.

Legal Representative

I think the Board should have a table, and behind the table it is important for the patients to see that it is a formal process. On the other hand, it should not be formal to the extent that you have the court type formalities of things, it should be a much friendlier and much more relaxed atmosphere.

Senior Psychiatrist

…the hearing should be as friendly as possible, should be as less formal as possible, so that the patients don't feel threatened. On the other hand, [the hearing] should have the proper sort of power attached to it. I think the balance should be less formal than a court hearing definitely… it should have some form of formality but better than just having a chat, because that takes away the power of it, in the patient's minds and relative’s mind.

Senior Psychiatrist

[It] . . . is a really vexed issue [as to what level of formality Board hearing should have. It’s one]…that I’m wrestling with, especially over the last couple of years. There are two sides of it, I guess, and I have a slightly dichotomous view of it to be honest. I think the process needs some sort of formality about it. I think there is a level of respect for process given that the decision that’s being made is a very serious decision in terms of someone’s livelihood over a period. I think that requires a certain framework about it that needs some formality. I think for people who aren’t used to formal processes that can be bad thing but I think also their capacity to understand that it is important and that the decision is important you need that framework to make that work. By the same token I think it has to always be a process which respects people and allows people to have their say in the way they want to and so on. So it has to be a very flexible process even within that formality. I think the Board, as much as many legal processes has difficulty dealing with that, part of the reason for that is because we sit in venues over which we have no control . . . We could sit in circumstances which are you know, quite formal in say a boardroom, or it can be in a kitchen basically or a little office or something like that. And that obviously, those physical environments change the dynamic of how the formality will work. I have a sense that in many ways when we sit as single members we actually have in some respects better process than when we sit as a full board and I say that in this way, I think that the full board is by far the better option, because I’m a great believer in the multi-disciplinary approach. I think in something like mental health it’s vitally important. So that I’m not for a moment suggesting that we ought not to have three member boards but I think in terms of process some patients feel much more comfortable with one person perhaps sitting around not even a table in a very informal way than they do across a table with three people facing them and so on. So that’s where the dichotomy comes. I know from my own practice that whilst some of my fellow members aren’t so keen on sitting as single members I actually feel often quite comfortable about it. That’s not to say that sometimes I feel very uncomfortable too, it can work both ways but I think in terms of trying to have formality, I think formality is something which is needed on a certain level for framework reasons but beyond that it should be a very flexible process which very much encourages people to be participating in the hearing process. That’s got a lot more to do with how good the members are in terms of running the process than it does about the process itself.

Board President

Once the chairperson has gone through the basic explanations about why we are here, [that] we are independent from the hospital, [and that] we come from outside [the hospital] and try to explain in simple terms what we do. I think it is very important to [ask] the patient, “What do you think about being on the order?,” “What has it been like in hospital?” or “How do you feel about the CTO?” - I think it is very important to open the hearing with those kinds of questions so that the patient can tell us where he is at, how he feels about it, how things are going for him and then the questioning develops from that. Some chairpersons will say to the patient, “Would you like to go first?” or “Do you want the doctor to go first?”, which I think is a mistake myself because the majority say, “Let the doctor go first,” ’cause it is a bit intimidating.

Board Member (Community)

The doctor just reads out the report! We can all read! It distances the doctor from the patient. It makes the hearing really difficult because at the Board you don't want them just to read their report, it makes you wonder whether they really know their patient and have engaged the patient, because they don't talk to the patient as a human being. “The patient is a 23 year old . . .” We have read the report! It makes me very uncomfortable at the hearing because the patient is there. The patient is just someone. It makes it really unhuman and it is very uncomfortable because you can't ask the doctor a lot.

Board Member (Community)

Another thing I just want to mention quickly, in the case of our hearings set down here in Warrnambool the Board's not able to give, well it is able, but it's not prepared to give, a specific time or timeframe for the commencement of hearings and they say that's because it's very difficult to do that because they don't know how long each hearing is going to take and I appreciate that, but perhaps they could allow a generous amount of notional time for a hearing and if the hearing finishes earlier well everyone gets a break, the Board members get a break or go off and do some other work.

If it goes later well it obviously sets the other times back, but at least you'd have a ball park time when your hearing was going to be conducted rather than being told as you are at the moment that hearings commence at 10.00 o'clock and if you're lucky the administrative staff at the hospital will tell you that 'at the moment you're third or fourth on the list or fifteenth on the list' and you've got little idea how long you might have to wait before your hearing and that can be very inconvenient and it can also create quite a bit of anxiety and stress. So I think there's a technical point there in the administration of the hearings that they should try and address as well.

Legal Representative

. . . it's not uncommon to see a psychiatrist – to see any member on the Board - kind of sigh after a while, or look kind of impatient or irritated when a client is perceived to have gone on too long in giving their evidence.

I had one Board member who fell asleep in a hearing, and then went to the toilet when they were making the decision. Or you're doing your cross-examination and they let out a big sigh and roll their eyes. Or the psychiatrist member looks at the doctor and rolls their eyes. It’s those little things that make such a difference in hearings and that really just infuriate me.

Legal Representative

I think there’s been one psychiatrist that I’ve found to be reasonable, all the rest of them, you know, the way they sit, the way they sort of lean back like this, you know . . . and then when they speak to the client leaning forward, “Reeeeeeally, tell me about that”.

Yes, patronising and condescending.

Yes, it's just awful. Just awful.

Legal Representative

And at the end of a hearing it's quite a sort of abrupt end. It's, “This is our decision. Here's your piece of paper to take away.” Some members are better at handling that and can say, “These are the things we can discuss now and [that you can] take away with you.” And some members are not as good as handling that [aspect of the hearing].

What happens if someone gets off an order? Is that handled better?

No. When people are discharged it usually ends with a lecture about if they don't follow their treatment, or if they don't continue to engage, it's just going to have these dire consequences. So there is usually a lecture after someone is discharged, rather than a “Congratulations! You deserve it.” I don't think I've heard any member ever say that.

Legal Representative

They're hopeless. Teleconferencing hearings are not the way we should be doing this stuff, I'm afraid. I don't think it's very welcoming . . . [but] it's efficient and cheap to do it that way . . . you don't get a feel for people. There’s a delay and it's artificial.

And they don't get a feel for you either.

Not at all.

Board Member (Legal)

. . . the way the hearings are conducted in our region and no doubt in other rural regions . . . they're conducted by video conference and sometimes they’re a three way video link, so we might have the patient in Portland and the clinical therapist in Portland, the psychiatrist and myself might be in Warrnambool and the Board members will be sitting in Melbourne.

Now there are sometimes some technical difficulties with the technology which can be very frustrating and can result in delays but the other point is . . . it’s certainly not as desirable in my view as having a face-to-face hearing where everyone’s in the same room. I think there would be a lot of advantages for both the Board and the patient if face-to-face hearings were the norm rather than video conferencing. It also can be quite strange and unnerving for the patient to have a hearing under those circumstances or a video conference and . . . in some cases we are speaking about people who are still quite symptomatic, quite ill. [These are] people who may have had experiences as part of their psychosis with voices coming from television or radio.

So this medium poses particular challenges?

Yes, I think that can be particularly problematic for people in that situation. The whole thing is just a bit alienating and strange I think particularly for patients, but also for advocates, particularly if they're not experienced with that sort of medium.

Legal Representative

What was that like?

Well I wasn’t sure whether they [the Board] could see us. I thought that they must be able to see us but I would’ve preferred personal contact. I couldn’t tell whether they were actually noticing anything.
Carer

[My son’s way of thinking at this stage is] to comply with everything because he doesn’t want it to be worse. In the past they’ve given him depot injections because he’s not been happy with the treatment so they’ve forced it on him and he’s had bad reactions from the injections. Of which we were told that when he was first admitted that they’d gone back through the files and they didn’t find anything about reactions to his medication. The private psychiatrist said that’s not possible because he was on heavy-duty medication and I saw what happened to him. He had massive nose bleeds, he passed out, he split his head open, his spine was twisted, he couldn’t walk he had to crawl. You know he really had a lot of side effects and yet they told me there was nothing recorded on the file and already he’s on the full throttle of medications and he’s only been in there ten weeks. I’m noting . . . the side effects. Because of the dreadful side effects before, he’s quite scared of getting to a point where they might do that again. So he’s complying. He feels he is damned if he does and damned if he doesn’t. And I feel the same way.

Carer

One of the unusual characteristics of the Board - and I'm not sure it's necessarily a good one - is that people, a cross-section, have spent a long time on this Board. There are many members of this Board who have been there for more than 10 years and I'm not sure that's that healthy for them actually because it does lead to a loss of vocation and a desensitisation. You start to lose your responsiveness to things and however technically good they are, and competent and so on, I think the edge comes off people after 6 years, and when you're looking at a significant number of people who've been there between 10 and 15 who are in positions where others tend to defer to them, I think that generates the kind of culture which can detract from appreciation of the reality of the awfulness of being detained. A lot of time people sometimes lose that awareness and that's bad. As soon as you lose that I think you should be gone, because it's such a heavy decision to keep someone where they don't want to be or to make them turn up for injections that have adverse effects on them and which make them dopey and interfere with their lives and stigmatise them and everything. It's a really, really major encroachment on people's lives and I think the immediacy and reality of that is perhaps not as present for a lot people whereas maybe it needs to be. It should be there all the time.

Board Member (Legal)

I think it's a pretty traumatic experience for people. I think it's like being hit by a train really for them because often the questions that they're asked are questions that are quite humiliating, or quite dehumanising. You get members who ask questions that you think are unnecessary. It's like tell me how crazy you are in 10 different ways. And I also think that when the treatment team give evidence that this is also really difficult for people to hear, because it's never evidence that they want to hear and it's never positive for them. I think the Board conducts itself in a way where it's always the consumer that is under more scrutiny than the treatment team. They [consumers] never walk out of there going “Oh wow, the treatment team got a real hard questioning, or a real run over”. It's always them that have the questions put to them. So I think it's a really difficult thing for people to go through and they feel pretty drained and pretty dehumanised by the end of it.

Legal Representative

I think that at their best legal advocates are really helpful and at their worst they’re obstructive and difficult. I think it’s a really difficult jurisdiction for legal advocates mostly because they’re from the [Mental Health] Legal Centre or Legal Aid They’re often very aware of the nature of the proceedings of this particular jurisdiction and so they’re sometimes less than helpful. I think from the point of view of a patient they’re important because they provide advice and support along with representation.

I’ve certainly seen plenty of advocates who on one argument would say that they are advocating in a particular way for their patient that I would see as being counter productive. So yeah, they have some advantages but I think the disadvantages often are that they extend the proceedings in terms of time quite significantly, which can have a very detrimental effect on participants particularly the patient. I think sometimes they can’t see the forest for the trees . . . they tend to hone in on particular issues which are one part of a broader sweep and that can have some disadvantages for the patient . . . in terms of the ongoing relationships with services.

I am certainly of the view that the level of advocacy we have overall is insufficient but it’s driven by issues that I can’t do anything about at the moment, It’s basically a money issue and one that the government really needs to decide what it’s going to do with. I’m certainly aware that in some other states where advocacy is more broadly practised that it’s not all that effective even though it’s more common in terms of the number of people who have an advocate.

Board President

I personally think [legal representation is] inappropriate in the setting . . . we’re not looking so much at their legal rights, they have a right to have good health care and if they don’t have insight how can they possibly exercise judgment in relation to their health. So I think legal representation really is inappropriate.

It certainly was in one [hearing] that [my daughter] had. This was a young lawyer who was working for Legal Aid, who had no – he’d never met Alexandra before, he was there to see that her CTO was lifted and that was his role, she’d hired him to do that. But he didn't have an interest in her ongoing health, and having the CTO lifted in those circumstances was really not in her interests at all, but she didn’t have the insight to recognise that. She had been told by somebody else that the way to get off your CTO is to ring Legal Aid and he was very effective.

Carer

I think the Board hearings work better if there is an advocate present. I feel that many consumers are seen but not listened to, they are not heard as an adult. Having an advocate with them can help alleviate this.

Case Manager

I think [legal representation is] really beneficial in terms of people feeling like they’ve got someone on their side. Just being able to put forward arguments in a more, I guess, technical way or in a more succinct, articulate way is useful and I think it’s useful to raise issues about treatment and how the treating team is treating the consumer. I think they’re all important issues and I think sometimes when someone’s unrepresented those things get lost a little bit.

Legal Representative

The more formal legal advocacy can be valuable in actually ensuring that not only the Board itself but somebody else has analysed the evidence against the criteria. I have seen bad advocacy - advocacy which seemed to me to not have a clear understanding of what their relationship was with the client in terms of whether they were taking instructions from them or acting in their best interests. I have seen private practitioners who rarely appear in the field and they didn’t seem to know what they were doing, but, generally speaking, having an advocate means that the questions which ought to be in issue are considered. . .

Former Mental Health Review Board President and Former Public Advocate

I think the role of the community member remains problematic. There are a number of community members who don’t have a clear perception of their role and don’t seem to be as involved as the lawyer and the medical member and that raises a real issue as to what role they do play and what contribution they can actually make. I’m not sure that’s being resolved as well as it should be. I think there’s a feeling on the part of a number of community members that they are second class participants in the exercise.

Too much of the time the community member just sits on the right hand side of the Chair and only asks the person whether they’ve got any family members and what they do during the day, it’s not a substantive contribution.

Board Member (Legal)

To be honest, I don't see the community members are particularly involved in hearings. They seem to sort of sit on the periphery a bit. And if they’re a key decision maker I think they need to be more involved. So I think in terms of what sort of questions they do ask, I guess they do ask questions about "Where are you living?" or – I think it's more kind of welfare based more than anything else. To be honest, I don't know. I don't know how much relevance they are to a hearing [as things presently stand].

I think it would be nice for there to be a more rights based approach and perhaps the community member could be the one to take more of that sort of approach. I mean, you’ve got a legal member taking a very legalistic approach, or a psychiatrist member taking a medical approach, but it would be nice for a community member to actually take a more rights based approach and be able to actually ask questions of the client that are of relevance to the client.

Legal Representative

I gather you don't sort of do peer reviews or sitting up the back and watching each other?

No. Well it's one of the weird things about sitting on a Tribunal. You get no feedback. Of all the ones I've sat on I've had one session with one Chairperson of the Tribunal which I was really pleased to have . . . and the person was a person I particularly respect and she had the idea that she should speak to each of the Board members and give them some feedback about how they were going and it was really welcomed from my point of view. I was really pleased to be able to sit down and say to her “Well, how am I going? You know I reckon I'm okay at this, but not too good at that.”

It's constructive feedback that people enjoy, but this Board doesn't.

No, it doesn't. No, it doesn't.

And the culture is it resistive or defensive?

Yes . . . I've been a bit surprised by that and there’s this sort of judicial independence sort of notion . . . I mean someone like [the President of the Board] is a person who’d be very well able to give feedback in a tactful way to people about that sort of thing and I think it's actually the responsibility of the head of the Board.

But you've got some very stroppy, fairly ego-driven people on this Board who if things were said to them in a way which they construed as critical, wouldn't take it well and would get on their high horse and say “I'm not interested, I'm a separate statutory appointee. I do it as I think I should and thanks for the feedback, but why don't you do something more useful.” I think that indicates that that they're inappropriate appointees. I think one ought to be responsive. You may or may not fully agree with it, but it's really important to be reflective as a decision-maker . . .

I think that would be good [to have] some system by which there is peer review. It would be really good. It’s especially important I think for lawyers because you’re appointed to the Board and until the day you leave you don’t see how other lawyers function. I mean really I have to go back to a while ago now before I was on the Board when I was being briefed by Legal Aid and Mental Health Legal Centre to appear in front of the Board and I can remember appearing in front of some of whom are my colleagues now and it was a really good experience. There’s one who I’ll try not to identify who was just awful to appear in front of, really formal and legalistic and I just felt my clients just never - were really intimidated by him, it was like being in a court. He wasn’t technically doing anything wrong, but there was just no warmth, no empathy, no rapport or anything. I'm sure he hasn’t changed, and maybe he can’t change, but that raises some questions as to whether he ought to be there. People ought to be getting that kind of feedback and if I’m becoming like that I’d really prefer that someone said to me and I’d do my level best to adjust. I think it’s important.

Board Member (Legal)

I think it’s really important for them [Board members] to try to understand what it would be like to be the patient, to understand what it would be like to have three people sitting there, to be nervous, to need time to settle down, to need time to assess the room. Don’t launch into the questions straightaway, try and have some warmers. There are various techniques that would try to assist somebody to as far as possible feel more at ease and therefore more able to put their case. To look at whatever aspects of the way they communicated, the way they behaved, the way the hearing is conducted to make it as positive a therapeutic experience as possible, to be particularly conscious about language, to be conscious of the questioning, to try and have as far as possible open-ended questions so that there is an opportunity for somebody to ventilate and to tell you what they thought was important. But then there is the whole issue of training, stating the obvious, you need training about the legislation and what the impact of taking away somebody’s liberty is, there is training about the medical issues . . . I mean for me it would be a lot of input and stuff about training because it is about how to behave, how to communicate and how to recognise your own behaviour.

Former Board President and Former Public Advocate

I think there also should be some [information] about aggressive behaviour and violent behaviour and how they can cope with that. Also, [information] about foul language, violent language and how they should be able to cope with that. People need to know they may upset people and they have to accept that. Also an introduction on how to cope with the most bizarre cases which some people cannot cope with. Anything can happen. I think also some training about how to communicate with respect to violent people, so they understand what you say and you allow for them to grasp that you are there to help. And people should be treated as normal people, like anyone else, with respect and dignity and with support . . .

Senior Psychiatrist

I think they also need training in relation to the role of advocates, both legal and non-legal advocates and support persons. Perhaps some training on some basic human civil rights and the importance of concepts like natural justice, those sorts of things.

Legal Representative

One case that I had that, I mean it was an afterthought, but I think my client really appreciated it and it came from the community member. He was not discharged but this client had had a longstanding addiction to marijuana and . . . he had given up marijuana after long term use and had stopped it for about a year, and the community member, you know, sort of congratulated [him]. [It] wasn't congratulations in a patronising way, you know, [the member] said what progress he made and how difficult it must have been for him to give up the marijuana. So even though the decision was against him, he walked out of there sort of looking pretty proud of himself. . . . and I've got to say I was struck by it because I've never seen someone - the Board doesn't usually or very rarely make any sort of positive statements to clients.

Legal Representative

Statements of Reasons I don't really think help you much.

I reckon they're generally unsatisfactory in their formulas, do you?

Yes.

And they're self-serving.

Yes, you're not ever going to - they're not going to quote evidence that goes against their reasons.

Well it's the main thing sometimes when you've appeared and you've put all this argument and then you see two lines attributed to you and then you're looking at the reasons thinking hang on! They thought I was the tea lady, what's going on …….

Legal Representatives (Discussion Group)

In your experience, do you feel a Statement of Reasons is an adequate or a true reflection of what occurs in a hearing?

Well I don’t think they are intended to be a statement of what occurs in a hearing; they are intended to be a statement of what evidence that was relevant was given and what findings of fact remain and what legal conclusions can be drawn from that. That is different from saying what occurs in a hearing. Sometimes in a Statement of Reasons you would put in some of the things which the patient said that were quite irrelevant just so that you felt the patient saw they were covered in the Statement of Reasons and I think there is a therapeutic value in that, but other than that I think they are an adequate representation of the thinking process of [Board].

Former Board President and Former Public Advocate

I think generally they [Statement of Reasons are] satisfactory. I don’t think they’re perfect by any means and it’s very hard to reflect the total discussion that takes place at any hearing in a written form that’s done some weeks later. I’m not sure of a better way to deal with it to be quite honest in this jurisdiction. There are jurisdictions where we tape proceedings for example and I think that’s something which I’d prefer not to do for all sorts of reasons. I think that the difficulty is that they are cast in terms of the decision, which is the element the Board in a sense is most concerned with but that’s not necessarily what the person who is asking for them is concerned with . ... But I think in terms of what they are I think they’re adequate.

Is that part of the induction and training – the Statement of Reasons?

Relatively small part of what we do. We certainly deal with them from time to time. They’re written by relatively small number of members overall, generally speaking not all members write a Statement of Reasons on a regular basis so it’s not something we revisit with all members all the time.

Board President

The good thing that it [greater involvement in writing Statements of Reasons] would do is to make people really feel involved and have a genuine sense of responsibility for decision-making. A good deal of the time the lawyer writes the reasons and they can have a degree of eccentricity about them and be fairly much the individual view of the lawyer and yet the others just join in without seeking to amend or put a different perspective or change and I think that's problematic. What it says to me is that others in the exercise are going through the motions a bit in terms of the reasons which I think are very important when they are asked for; there really ought to be an expression of all three members.

In relation to Statements of Reasons, what do you see their purpose as being?

Statements of Reasons are written for a variety of audiences and they should be couched accordingly. They're written first and foremost for the patient, they're also written for the clinician who has made the decision which may or may not have been accepted. They are made with a view to potential appeal. They should be written also in the awareness that colleagues on the Board, and not sitting on the hearing, will be reading them and that they may be useful. They're written also for legal representatives and other advocates who appear before the Board as a means of providing information about how the Board has reasoned through issues and difficulties in terms of statutory interpretation or actual scenarios.

Board Member (Legal)

Okay can I give you an example? I did a Statement of Reasons recently where I was dissenting; in fact it was in a large part to do with the concept of non-compliance.

. . . the thing that was concerning me was that the person was repeatedly described as having an established history of violence and a history of non-compliance. And when you actually examined it carefully it was [the case] that once several years ago something had gone wrong in factually quite different circumstances from those which were presenting at the moment. But it's a common mode of parlance.

Board Member (Legal)

Statements of Reasons, are they helpful?

Sometimes they are. Some of them are really good quality. And some of them are much poorer quality. They might be inaccurate in the way that they reflect what was said in the hearing . . . and it's of real concern if a Board member goes away, thinks about what were the reasons for the conclusion that they make and then writes it up in a Statement of Reasons. Sometimes you get the sense that that's what's happened. Because detailed reasons aren't given on the day. And I've been in hearings where members have refused to give oral reasons to clients when they've asked. . . . And to actually be told "No, you can ask for a written decision." is pretty poor. It's pretty poor form.

... I'm never happy to see two lines for why a person can't consent to treatment. As far as I'm concerned that's not good enough. It's not good enough to have a lengthy record of what happened in a hearing and two lines about why the Board made the decision that they did. It's not good enough.

Legal Representative