In this section
START OF Policies and procedures
START OF Case management and practice management standards
END OF Case management and practice management standards
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These case management standards have been prepared to assist Legal Aid Queensland staff and preferred suppliers who practice in the Mental Health Review Tribunal.
They represent the minimum work necessary to be undertaken in representing the client. The objective of these standards is to assist officers in achieving an efficient and effective practice.
Compliance with the standards is a pre-requisite to ensuring consistency of service delivery to clients and is therefore an important requirement of undertaking legal aid work.
These case management standards should be read in conjunction with and not in substitution of the statute law, rules and practice directions of any court or tribunal which may issue from time to time.
Practitioners must also be aware of and comply with the Best Practice Guidelines for lawyers working with clients in the Mental Health Review Tribunal. A copy of the guideline is attached as Annexure A.
Practitioners appearing in the Mental Health Review Tribunal (MHRT) in matters which are allocated pursuant to the Legal Aid Queensland (LAQ) MHRT Service Orders arrangements must have a current practicing certificate and must have fulfilled the accreditation requirements prescribed by LAQ. Practitioners must also ensure they comply with any additional accreditation requirements that may be communicated to them by LAQ from time to time.
As soon as the file is received, the practitioner should:
All material relevant to the hearing should be obtained by the practitioner.
For all matters, practitioners should obtain a copy of the relevant application or notice for the proceedings along with any updated clinical report.
For forensic orders reviews and fitness for trial reviews, the practitioner should obtain the forensic dossier from the MHRT. The dossier will typically include:
Prior to the hearing the practitioner should arrange for a conference with the client. The conference should take place face to face whenever possible. The practitioner must communicate regularly with the client and ensure the client is kept up to date.
The practitioner should conduct an assessment as to the client’s capacity to provide instructions for the proceedings. Practitioners must be mindful of their primary duty to represent the client’s views, wishes and preferences. The threshold for assessing the client’s capacity should proceed from that basis.
Under common law, adults are presumed to have capacity to provide instructions unless there is evidence to the contrary to rebut the presumption. Practitioners must be mindful that capacity is time specific, domain specific and decision specific.
Practitioners may have regard to the principles outlined in the Queensland Handbook for Practitioners on Legal Capacity when assessing client capacity.
Practitioners should take all reasonable steps to enhance their client’s capacity to provide instructions, such as:
Practitioners should keep a detailed record of their assessment process, ultimate conclusion and reasoning.
During the conference, the practitioner should advise the client on all matters relevant to the proceedings and representation, for example:
A practitioner must rely and act on the lawful, proper and competent instructions of their client (ASCR, rule 8). A practitioner must also act in the best interests of their client (ASCR, rule 4)
Practitioners should have regard to their assessment of the client’s capacity when determining when to take instructions, and any limitations of the instructions.
For a client lacking capacity, the practitioner should make enquiries as to whether an applicable attorney is in place. If there is, the practitioner should seek the attorney’s view as to the client’s views, wishes and preferences to the extent the client has been able to express them to the attorney. Otherwise, to the extent the client has not been able to express their views, wishes and preferences, the practitioner should seek the attorney’s views as to the client’s best interests. The practitioner still has an obligation to represent the client’s best interests at the hearing as per section 739(3)(b) of the MHA.
Practitioners should also enquire as to whether the client has a valid and applicable Advance Heath Directive. Practitioners should have regard to any views, wishes and preferences expressed in the Directive when representing the best interests of the client.
For all matters, practitioners should make enquiries as to whether a guardian has been appointed for legal matters by QCAT or a court. In the event that a guardian has been appointed, the practitioner is obliged to seek the guardian’s position as to the client’s views, wishes and preferences to the extent the client has been able to express them to the guardian, and otherwise to the extent the client has not been able to express their views, wishes and preferences, the practitioner should seek the guardian’s views as to the client’s best interests. The practitioner still has an obligation to represent the client’s best interests at the hearing as per section 739(3)(b) of the MHA.
Circumstances may arise where instructions provided by a guardian are not consistent with the views, wishes and preferences expressed by a client assessed as having capacity to give instructions. Practitioners should attempt to resolve the conflict by speaking with the guardian about their assessment of the client’s capacity, the views, wishes and preferences expressed by the client and matters assessed as being in the client’s best interest. Section 739(3) applies.
Where a conflict of instructions continues, practitioners should advise the tribunal of the guardian’s position, but continue to represent the client’s views, wishes and preferences to the extent the client can communicate them. If the client is unable to express their views, wishes and preferences, practitioners should represent the client’s best interests.
Best practice is taking written instructions, face-to-face from the client which are signed by the client and witnessed by the practitioner.
Situations will arise where this is not possible. These may include urgent hearings where there is insufficient time to arrange a face to face conference or where face to face contact with the client cannot be arranged due to their residing in a remote location.
Lawyers should consider the alternatives below:
In circumstances where written instructions are unable to be taken from the client, practitioners must keep a detailed file note of their client’s verbal instructions and arrange for such a conversation to be witnessed wherever possible.
Practitioner should take instructions on all relevant matters, for example:
Practitioners should also take instructions from the client taking into account the matters set out in A12 dealing with the retention of records obtained pursuant to the provision of MHRT representation. Such instructions should, at a minimum, authorise the practitioner to destroy the client’s file seven years after the date of the last action on the file, or at the expiry of any other time period (greater than seven years) provided by: legislation; regulation; or rules or standards of professional conduct that are binding on lawyers who practice in the MHRT. The requirement to obtain instructions on destruction of the client’s file does not apply to situations where the practitioner has assessed that the client does not have capacity to provide instructions and the practitioner is representing the client’s best interests at the hearing.
In circumstances where a report or material is not received in sufficient time to take instructions, practitioners should consider whether it is appropriate to seek an adjournment of the hearing on the basis of procedural fairness and natural justice pursuant to sections 733, 734 and 749 of the Mental Health Act 2016 (“MHA”).
Practitioners should provide advice to, and obtain instructions from, their client where appropriate. Practitioners should consider the length of adjournment required having regard to the best interests of their client.
Wherever possible, practitioners should notify the MHRT and parties to the proceedings of their intention to apply for an adjournment at least 2 business days prior to the hearing.
Practitioners must be aware of the confidential nature of material prepared for MHRT proceedings, including victim impact statements, and their obligations under section 743 and Chapter 17 Part 2 of the MHA.
In circumstances where material is subject to a confidentiality order, practitioners must ensure that they comply with the requirements of section 722 of the MHA and only disclose material in accordance with the conditions of the order.
Material subject to a confidentiality order and victim impact statements should be securely stored on file and clearly marked to ensure it is not disclosed to the client during the proceedings, or in the event of an Administrative Access or Right to Information request.
Practitioners should give consideration to whether a second opinion report is required from a medical specialist to address the relevant matters subject to the hearing.
Practitioners should consider the following report options:
Practitioners should consider if an adjournment of proceedings is required to prepare an independent report and take client instructions accordingly.
Where clients are represented under an MHR grant of aid, practitioners should seek funding in accordance with the Grants Handbook if a report outside of the above options is required.
Where an adult client declines legal representation, the practitioner must assess whether the client has capacity to do so.
Practitioners must assess whether the client has the capacity to understand the nature and effect of a decision to waive the right, and the ability to make and communicate the decision. Practitioners should keep a written record of their assessment, decision and reasons.
If the practitioner assesses that the client has capacity to waive legal representation, and the client instructs they want to apply to waive the right to be represented by their appointed representative, such a waiver must be requested in writing from the MHRT as required by s740(4) of the MHA.
Because a person must have the capacity to make and communicate the decision to waive the right to be represented and have the ability to understand the nature and effect of a decision to waive the right, the actual communication to the Tribunal of the application to waive such a right should be made by the client. Wherever possible, signed instructions from the client instructing they want to apply to waive representation should be obtained prior to the client’s communication to the Tribunal.
If the practitioner assesses that the client does not have capacity to waive legal representation, the client may still apply to waive their appointed representative.
Where the MHRT accepts the waiver of legal representation, the practitioner is not required to represent the client further or attend the hearing.
The practitioner should obtain any supporting material the client wishes to rely upon at the hearing. This material may include letters of support, independent reports or a self-report.
Practitioners should also consider preparing written submissions for particularly complex or meritorious cases, such as where the client is seeking significant changes to limited community treatment conditions or revocation of an order.
Practitioners must comply with s738 of the MHA and provide any supporting documentation to be relied upon to the MHRT within three days of the hearing.
Practitioners should consider whether the client’s matter is so complex as to require counsel.
Where clients are represented under an MHR grant of aid, and where the practitioner considers that counsel should be briefed, the practitioner should seek funding in accordance with the Grants Handbook and brief counsel in accordance with Legal Aid Queensland’s briefing counsel policy.
Practitioners should encourage and support clients to attend their hearing and participate in the review/application process.
Wherever possible, practitioners should appear at the hearing in person. Where a practitioner cannot attend in person, they may contact the MHRT to arrange an appearance by video conference or telephone. Appearance by telephone should only occur as a last resort.
Practitioners should make arrangements with the MHRT for appearance by video conference or telephone as soon as possible after receiving notice of the hearing date.
To the extent that the client has capacity to provide instructions on their views, wishes and preferences, a practitioner must comply with s739(3)(a) of the MHA and represent the client’s views, wishes and preferences at the hearing.
To the extent that the client lacks capacity to provide instructions on their views, wishes and preferences, a practitioner must comply with s739(3)(b) of the MHA and represent the client’s best interests at the hearing.
Practitioners should remember that their paramount duty is to the MHRT.
Practitioners should advise their clients in writing of the outcome of the hearing and explain the consequences of the decision. This should be done as soon as possible after the hearing.
Practitioners should advise their clients of their right to obtain a statement of reasons for the decision from the MHRT. Where appropriate, practitioners should obtain a copy of the statement of reasons and provide it to the client.
Practitioners should advise their clients of their right to appeal the MHRT’s decision within 60 days of receiving written notice of the decision, and their right to apply for legal aid for an appeal to the Mental Health Court. Practitioners should consider the merits of an appeal and whether a notice of appeal should be lodged. If the practitioner considers an appeal should be made, the practitioner must discuss this option with the client. If merit is considered, the practitioner must assist the client to complete and lodge the notice of appeal and the Legal Aid application form. An Application form should be forwarded to Legal Aid Queensland with sufficient information so that the merits of the appeal can be assessed.
Practitioners should consider advising their clients of appropriate steps they can take to assist in the preparation of their next review.
Practitioners should ensure that they comply with any legislative, regulatory or other requirements relating to the retention of records obtained pursuant to the provision of MHRT representation, including Rule 14.2 of the Australian Solicitors Conduct Rules.
These standards are subject to review following a 6-month practice period.
Last updated 13 July 2022