The following information is intended to provide assistance to lawyers appearing before the Review Tribunal on behalf of applicants. The value and effectiveness of good legal advocacy should not be understated.
Resources
A chapter about the MHRT is to be found in New Zealand’s Mental Health Act in Practice edited by John Dawson and Kris Gledhill (Victoria University Press 2014).
The MHRT resources page has links to:
Cases
Practice and Policy Guideline notes
- Pre-hearing telephone conferences
- Hearings by video conference
- The hearing format
- The scope of the review process
Evidential considerations
Clause 5 of Schedule 1 Mental Health (Compulsory Assessment and Treatment) Act 1992 provides that the Review Tribunal “may receive any evidence that it thinks fit, whether it is admissible in a court of law or not.”
The Review Tribunal is mindful of the requirements of natural justice. It may seek submissions from applicants’ lawyers when deciding whether it should hear or take account of evidence:
The Advocacy Role
The duties which lawyers owe to courts as set out in chapter 13 of the Lawyers Conduct and Client Care Rules 2008, extend to tribunals1.
The fundamental role of the legal advocate is to enable and encourage the Review Tribunal to view the case from the perspective of the applicant, and to provide it with reasons to reach conclusions favourable to the applicant.
In New Zealand’s Mental Health Act in Practice2 it is said that: The criterion of good legal representation, however, is not the formal outcome, but whether the lawyer has ensured that the case has been presented properly and the applicant has been well supported throughout the hearing. More specific hallmarks of good representation include thorough preparation, rapport and empathy with the client, a clear and sympathetic explanation of the client’s circumstances and viewpoint, assisting the client to give their evidence in a helpful way, a sound grasp of the relevant law, a reasonable understanding of psychiatric conditions and their treatment, challenging the evidence, analysing and interpreting evidence in a manner favourable to the client, presenting new evidence, explaining the hearing process and the evidence to the client, holding decision-makers to account, displaying objectivity and realism, and engaging well with the Tribunal.
Other things advocacy might include
- Correcting factual inaccuracies
- Identifying the incompleteness of evidence
- Providing new evidence
- Testing the reliability of evidence
- Challenging the conclusions being drawn from the facts
- Providing historical context
- Drawing out the positives
- Focusing on the applicant’s perspective
- Instilling sympathy
- Reframing the circumstances
- Scrutinising possible scenarios
- Suggesting alternative approaches
- Detaching the future from the past
- Engendering optimism
- Promoting change
- Distinguishing clinical and legal issues
- Examining the law
- Emphasising patient rights
- Laying the groundwork for future reviews
- Protecting valuable relationships
- Evincing support for the applicant.
1Rule 1.2 states that “court means a court or tribunal before which a lawyer may appear”
2Referred to in paragraph 4 above.