December 2011
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Table Of Contents
December 2011
Mental Health Commission for Queensland
Change to Registration Laws Impacts Qld
Adjournments Down in September Quarter
Update on our Indigenous Program
Tribunal Technology Update
Deadly support for Indigenous patients
Reasons regarding Victim Submissions
Statement of Reasons - Things you should know
Appeals Update from the second half of 2011
Report Form Changes
L&D Update
Clarification on FBT Liability
New Motor Vehicle Allowance Rates
Comings and Goings
Whats On in 2012
3
5
7
9
10
12
14
16
19
20
24
25
27
28
29
30
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December 2011
Author: Barry Thomas
While it is the season to be jolly quite often everyone gets stressed as if the system as we
know it will come to an end. Everything must get this years date on it and tempers get frayed. I
hope you can keep your cool and also find those special presents for your loved ones. These
days time is something special to give people.
It has been a rocky road this year but we kept running through the efforts made by all. Often its
the efforts that dont get acknowledged that were crucial and I thank you all for those efforts.
Our annual report is awaiting tabling so it will be next year before you can see it and the record
of our efforts made to achieve the good results. Budget issues continue to demand thought
and I appreciate your attention to reducing unnecessary adjournments to assist with keeping
costs down.
Statements of reasons are at an all time high at present which is an added demand but not of
itself a bad thing. Being accountable is important and if our reasons are written for the patient
to understand, they may contribute in some way to their understanding of their illness and its
better management. Likewise if attention is paid to submissions by victims some therapeutic
jurisprudence may assist them dealing with their trauma .
Our sittings at the Forensic Disability Service continue and it is good to see that service
providing appropriate care to clients who were not well served by detention in hospital wards.
Its been a tiring year but with all the issues being addressed now such as Mental Health
stigma, the Community Services Plan, and Mental Health Commissions at state and federal
levels plus appointment of Ministers for Mental Health I am optimistic that next year will be a
good one. I am sure it will require adaptability and openness given these and other issues to
be faced, but at least mental health is on the agenda and being given support.
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The new Mental Health Commission is under discussion and will require a lot of thought to
define its role and powers. We have been approached and will contribute to the discussion
particularly around issues of the Tribunals independence.
We have no idea at present how the Premiers recent announcement about breaking up
Queensland Health will affect us. That will be a task for next year.
Please keep safe this Christmas and thanks to all of you for your good work this year. You
make the Tribunal .
Merry Christmas
Barry
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Mental Health Commission for Queensland
Author: Shelley Fisher
During Mental Health Week the Queensland Government announced the establishment of an
independent Queensland Mental Health Commission which is proposed to commence from 1
July 2012. More information about the proposed commission can be found at
http://www.health.qld.gov.au/mentalhealth/commission.asp
The Tribunal has been approached by the transition team, headed by Dr Aaron Groves, for
input to the concept for the Commission. The consultation has aimed to gather information and
views on the potential role and functions of the Commission, its structure and its relationship to
other government agencies. Individuals can have a say by making submissions before the
end of December at http://www.getinvolved.qld.gov.au/gi/consultation/200/view.html
While Western Australia has had a Mental Health Commission for some time, it
was announced in June 2011 that there is also to be an Australian National Mental Health
Commission. Robyn Kruk, ex-Director-General of NSW Health and previous Director-General
of the NSW Department of Premier and Cabinet, has been appointed CEO designate of the
new Commission.
The national Mental Health Commission will have nine commissioners and a chair. Its key role
will be to provide independent advice to government on the effectiveness of the mental health
system and to drive transparency and accountability in the system to deliver better outcomes
for consumers and carers. It also will have a role monitoring the implementation of the 10 Year
Roadmap for Mental Health Reform. The Commonwealth Government is investing $32M over
five years to establish the Commission and one of the first tasks will be to produce a national
report card on mental health and suicide prevention in 2012.
New South Wales is also getting on board with the announcement in November 2011 of its
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new Mental Health Commission. In that state, either the Commissioner or the Deputy
Commissioner must have lived experience of mental illness. The NSW model is proposed to
work across government agencies to effect change in mental health service delivery. The
Commission will have the power to request data from agencies and produce
independent reports into certain matters. It will also monitor and report annually on the
governments success in implementing the mental health plan, but it will not directly control the
mental health budget.
Other examples of Mental Health Commissions are national bodies that exist in New Zealand
(in operation since 1998); Canada, Ireland, Scotland, and the United States. To read more the
various approaches to Mental Health Commissions in these jurisdictions
http://www.mhrt.qld.gov.au/wp-content/uploads/2011/12/article.MHC_.Rosenetal.2010.pdf
The model that is being contemplated for Queensland appears to borrow heavily from the
Western Australian model, particularly in terms of controlling the mental health dollars and
ensuring the funding flows out to support service delivery targets consistent with the
national and state plans. It is broadly proposed that the Queensland Commission will promote
recovery and human rights of people with mental illness and have privotal role in policy
development and streamling mental health service reform. In so doing it is envisaged that it will
have a strong relationship with and be representative of consumers and carers, undertaking a
systems advocacy role in addition to monitoring service quality and performance.
While it is clear that the Commission will not undertake individual advocacy, and will not
encroach on the existing functions of the Queensland Health Quality and Complaints
Commission in relation to individual complaints, the consultation aims to explore the
boundaries and relationships that the Commission will have with other agencies and entities
that are involved with systems advocacy, rights protection and promotion, policy development
and implementation, standards monitoring and reporting, and service delivery. At the same
time consideration is being given to how to structure the commission to maximise its
potential for political influence and ministerial advice in relation to mental health service
delivery.
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Change to Registration Laws Impacts Qld
Author: Shelley Fisher
With the change to national registration for health professionals in July 2010, an issue has
arisen in relation to psychiatrist members of the MHRT.
The MHA2000 defines psychiatrist as having specialist registration under the relevant
legislation. Previously in Queensland there were a number of different categories under which
a medical specialist could be registered, including a non-practising registration category that
included a fee waiver.
Under the national registration scheme this is not offered. In the main, registrants require full
general registration with the incumbent costs around $670 per annum and the requirement to
meet certain continuing professional development standards, as well as undertake the
appropriate level of professional indemnity insurance.
Some discussion has occurred within APHRA as to how to approach this issue, with
consideration of the teaching and/or assessing category as a possibility for limited registration
for part-time non-practising tribunal members. However, it has now been confirmed by Dr
Joanne Katsoris, Executive Officer of the Medical Board of Australia, that medical practitioners
who serve as Tribunal Panel members, must hold general and/or specialist registration.
Those medical practitioners who currently hold non-practising or limited registration (public
interest - occasional practice) will need to up-date their registration with AHPRA and must not
serve as a Panel member until their registration is up-dated. The Boards definition of practice
(which can be found on the Boards website), is different to the definition provided by the
previous Medical Board of Queensland. As these practitioners are using their knowledge and
skills to provide advice and opinions, they need to hold the correct registration.
Some practitioners may be concerned that they do not meet the Boards Recency of practice
registration standard, as they may not have clinically practised the profession for a number of
years. Dr Katsoris has confirmed that these practitioners may have a condition imposed
limiting their scope of practice. The condition may read along the lines of: Practice is limited to
participation as a member of the Queensland Mental Health Review Tribunal.
The relevant application forms for general and/or specialist registration, as well as the current
registration standards are available at www.medicalboard.gov.au. Should any of the
practitioners who currently hold non-practising or limited registration (public interest occasional practice) have any questions in regards to updating their registration, please refer
them to AHPRAs website at www.ahpra.gov.au to make an online enquiry or phone 1300 419
495.
(Note the advice content of this article has been reproduced directly from the formal
communication from AHPRA).
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Adjournments Down in September Quarter
Author: Shelley Fisher
The statistics for the September quarter indicated an encouraging decrease in the adjournment
rate despite increased activity overall. Interested members can access the statistical reports for
the period 1 July to 30 September 2011 on the website.
A comparison with data from the previous quarter indicates:
14.2% increase in the number of matters scheduled
15.5% increase in the number of hearings
13.5% increase in the number of Tribunal sittings
16.9% increase in the number of FO reviews
14.5% increase in the number of ITO reviews
12.0% increase in the number of ECT reviews
3.6% overdue matters compared to 7.6% in the previous quarter
13.8% adjournments compared to 16% last quarter
there was psychiatrist and other medical practitioner attendance in 54.1% of hearings
36.4% of clinical reports were received on time more than 6 days before the hearing
clinical reports received 3 or more days before the hearing was 66.0% of matters
compared to 60.3% in the previous quarter
the number of cases in which no clinical report was received was 4.5% compared to 5.2%
last quarter
late revocations of ITOs (7 days or less from the hearing date) as a percentage of all ITO
revocations was 14.7% (an increase of 2%).
In the current quarter when compared with the same period in 2010:
the number of matters scheduled is 7.5% higher
the number of hearings is 6.8% higher
the number of Tribunal sittings is 0.7% lower
ECT Applications were 19.7% higher
FO Reviews were 4.1 % higher
ITO Reviews were 7.2% higher
overdue matters are 0.4% lower
% of matters adjourned is 3.3% lower
There has been 5.4% improvement in clinical reports received 3 or more days before the
hearing
late revocations of ITOs was about the same at 14.8%.
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Update on our Indigenous Program
Author: Shelley Fisher
The Tribunal had 617 individual patients registered with Aboriginal or Torres Strait Islander
background in 2011. This represents 11.4% of Tribunal users.
Out of a total of 1269 hearings for Indigenous patients, 78% were ITO reviews, 20.6% were FO
reviews, and 1.4% was other matter types. Adjournment rates for these matters were higher
than the average at 22.9% (the average is 17.7%).
KPIs for Indigenous hearings
2010-11
Patient hearing
332
26.2%
attendance
Cultural information
49
3.9%
IMHW attendance
100
7.9%
Cultural support
56
4.4%
attendance
Indigenous Tribunal
758
59.7%
member
Note: The above figures relate to 1269 hearings in 2010-11
The Indigenous Liaison Officer has been in place since August 2009 and has been extended
again to August 2012 still in a temporary capacity as a project position.
The ILO has been able to establish the Tribunal as an accessible organisation for Indigenous
patients and stakeholders. The focus on relationship building means that the ILO is regularly
invited to community forums and meetings to provide information about the Tribunal, and gain
feedback on the cultural appropriateness of Tribunal hearings.
The ILO has brokered a partnership with a north Queensland and Brisbane-based Registered
Training Organisation to embed information about the Tribunal in accredited training for IMHWs
and other community mental health workers. There is a high turnover of Indigenous mental
health staff across the state, and this strategy will ensure that new workers will be provided with
relevant information about the Tribunal and its Indigenous strategies.
Specific information for Indigenous stakeholders was launched on the Tribunals website in
2011 to assist in the dissemination of cultural information to patients and their carers.
Significant work has also been done this year to review the cultural information page within the
clinical report with new versions for Indigenous cultural information and CALD information
having been launched. The response to the new cultural page has been very positive, with
non-Indigenous mental health staff including the District Forensic Liaison Officers starting to
provide more detailed cultural histories for their patients.
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The ILO monitors Indigenous hearings to ensure a culturally appropriate experience for
Indigenous patients and their families. Where possible, the Tribunal schedules one of its six
Indigenous members on Indigenous patient matters. The ILO works with the hearings team to
monitor scheduling and review patient files to check for Indigenous member participation, IMHW
attendance, patient attendance and monitor completion of the cultural information page.
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Tribunal Technology Update
Author: Mark Thomson
It has been a busy year with technology at the Tribunal despite budget cuts and a challenging
atmosphere, we have managed to achieve a few goals.
The Tribunal Information Management System (TIMS) has experienced a period of stability
while we froze any ongoing modifications in the system. We are currently carrying out an
extensive review of the system, looking at what is working well, and what could still use
improvement. A number of options are being considered and reviewed at present, and
hopefully a plan to move the Tribunal TIMS forward into 2012 will be ready soon. Some of the
ongoing issues we hope to address are putting better checking in place to ensure data is
accurate when entered, simplifying the system, improving speed issues, and fixing the
document generation.
One of the critical components of TIMS is the Reports module. Typically this has performed
poorly, so Heath and myself wrote our own solution from the ground up. Our new reporting tool
is substantially faster than the previous one, and the reports are accurate now. Heath has been
working hard on creating new reports to snap into it, and we currently have 20 available for
Tribunal staff to access.
Printers were installed in all Hearing Coordinators pods to address some of the speed issues
with document generation tying up the large format printers for significant periods of time. The
Hearings team has found this much more convenient.
We are also developing a tool at the moment to allow members to enter their availability
information online, so that we can streamline the scheduling process. Currently this takes a
significant amount of time for our Hearings staff to organise, so we are hoping this will make
obtaining this important information from members easier and quicker.
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The website was upgraded last Christmas, and has undergone further refinements during the
year. New content for the Indigenous and AMHS services has been developed this year, as
well as extensive reviews and updating of existing content. The site has also been recently
updated to the current version of software and libraries, providing improved management
functionality. Our site contains hundreds of documents that require a lot of tracking to ensure
that we always provide the current versions, and these updates improve our ability to do this.
A major recent initiative was the migration of the website to a new internet hosting provider.
We have had a number of performance and technical issues with our previous provider, and
moving to a new provider has resolved many of those issues. One very important issue that
has been resolved was our exclusion from search engines. You will be pleased to know that
the Tribunal is now able to be found on the major search engines. We will be looking further
into improving our page ranking by linking in with other services or Government websites.
We are now moving into a phase of optimising the site for performance, particularly the speed
of the site. An ongoing project is to look at integrating our many systems to allow for single
login.
Our server room has been an ongoing concern, particularly since the floods earlier in the year,
and we have been attempting to find options for relocating our critical business equipment off
site. We also have a functioning backup and restoration system, allowing us to implement
disaster recovery procedures and restore critical business systems anywhere and anytime.
In the meantime, we have also been busy addressing ongoing issues with overheating in the
server space, due to being unable to install sufficient cooling equipment in that space. Heath
has been evaluating a number of cooling options, as well as replacing some of the older server
equipment with newer more energy efficient devices. Virtualisation of servers onto a single
device is also removing some of the heat generating devices from that space.
Installation of our new servers has given us a much greater capacity for hosting digital
solutions, as well as giving us a significant performance boost with a lot more processing
capacity now available. This has also allowed us to finally synchronise our development and
production environments for TIMS, allowing us to do better testing before putting releases into
the live environment.
Now that the Tribunal IT infrastructure has been significantly improved and future-proofed this
year, we should be better prepared to start moving forward on some of the critical IT and
business initiatives in 2012, such as document management and records digitisation, as well
as continuing to deliver improvements to business processes and outcomes.
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Deadly support for Indigenous patients
Author: Judy Johnson
Indigenous Mental Health Workers (IMHW) can play a key role in the review process for
Aboriginal and Torres Strait Islander patients by providing cultural support. They are ideally
placed to support the patient before, during and after their review by explaining the Tribunal
process, encouraging the patient to attend their review and assisting them to understand
Tribunal questions and decisions.
Randall Taylor is the IMHW with the Service Wide Integrated Functions Team (SWIFT) in
Toowoomba. He has been in the role for just over a year and believes it is important to support
Indigenous patients through the review process.
Indigenous people like to talk about their culture and where they come from, Randall says.
Its an important part of the healing process and can help treating teams to establish rapport
and deepen their understanding. Finding out about where someone was brought up, their
community, their land and their place of belonging is an opportunity our treating teams have
come to value. Its also a good way to get the family involved.
I also make a point of going with them to their review. It helps to have someone by your
side. I can ask the Tribunal to explain if they dont understand whats being said. I make sure
the cultural page contains useful information for the Tribunal and I try to add to it each time a
person is reviewed by the Tribunal.
Randall says the patient has the best chance of a good outcome when the Tribunal
understands something about their culture who they are and where they come from. A key
factor in Randall being able to perform his role so well is the support he receives from his team
leader Gail Turner. This enables Randall to work closely with other members of the treating
team to provide important cultural support to patients.
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Toowoomba Indigenous Mental Health Workers Randall Taylor and Belinda Wilson provide
cultural support for Indigenous patients at their review.
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Reasons regarding Victim Submissions
Author: Barry Thomas
Take care when writing the Reasons about whether a submission was taken into account.
Always remember that the Reasons for decision about submission (ie whether or not the
submission is taken into account by the Tribunal) are provided to victims who submit material.
This is required by section 465. All members should be familiar with sections 464 and 465.
Feedback from the Victim Support Service (VSS) indicates that the Reasons for decision about
material submitted by a victim are of varying quality and detail. Examination of these Reasons
shows that some are not completed with sufficient detail to explain the Tribunals decision to
take the submission into account or otherwise. This is most concerning.
When drafting the Reasons for decision about submissions Tribunal members should keep in
mind that the victim will read the reasons. Members must then find the balance between
providing sufficient information to the victim to enable them to understand the decision while
not breaching the confidentiality of the patient. Section 465 provides that the certain
information must be excluded from these Reasons:
The name or address of where the patient resides, be that an inpatient facility or a private
residence
The name or contact details of any relative of the patient
Information about the treatment or care of the patient
Submitting material to the Tribunal for hearings occurring six-monthly causes victims
considerable stress. The hearing process is closed to the victim and the Reasons for decision
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about submissions is the only mechanism available to understand the Tribunals decision
about whether or not it was taken into account and may also be used by the victim to shape
future submissions. Reasons for decisions about submissions should include how the
submission was or wasnt relevant to the Tribunals decision. Merely stating that the
submission was or was not relevant to the matters considered by the Tribunal is not enough
and does not provide any explanation for the Tribunals decision. Remember that those who
make submissions may have little knowledge of the Tribunals processes.
Consider writing a summary of the type of information provided and then point out how each
category of information was or wasnt relevant to the review process. For example, The
submission emphasises the seriousness of the index offences and the their lasting impact on
the victim. It communicated the victims wishes in respect of any further LCT and contact with
the patient. The submission was relevant to the issues before the Tribunal specifically the
consideration of the nature of the index offence, whether the FO should be confirmed and
provisions of LCT.
In commenting on relevance keep in mind the provisions of section 464 which provides the
purpose for submitting material and outlines what submissions may contain. Do not rule a
submission irrelevant because it comments upon the conduct of the patient or the impact of
that conduct or the risk the writer believes the patient represents. Section 464 states that
submissions may include views on these topics.
If the submission was taken into account, Members are required to explain how it was taken
into account. This section is on the flip side of the form and should be completed with
reference to how the submission impacted on the Tribunals decision. Specific references to
LCT can be made if there is an FIO in favour of the victim. For example, was the non-contact
provision maintained? The existence of a FIO is discernable by reference to the hearing list
FIOs are indicated by an asterisk against the patients name.
Reasons for making or not making a Confidentiality Order in relation to the patient are not
available to the victim. If the submission was withdrawn at the victims request because a
Confidentiality Order was not made, the Reasons for decision about submission is the only
communication that will advise the victim of this decision. Therefore, in these circumstances,
the Tribunal must complete the Reasons for decision about a submission. The relevance or
otherwise of the submission can be examined but the explanation for why it wasnt taken into
consideration should be stated.
These Reasons do not need to be lengthy. A couple of sentences in each section will suffice if
they are well considered. If a Confidentiality Order is made, Members should also consider
whether or not to include the Reasons for decision about submission as part of the material
covered by the Confidentiality Order. This may be necessary as patients have the right to
request the Reasons for decision about the submission and the Reasons will most likely reveal
the author of the submission and the contents of the submission to the patient.
Sensitivity to the victims point of view should also be adopted. For example, please dont
refer to the alleged offences in your reasons. A victim may have suffered considerable
physical or psychological injury as a result of the index offences and the they may view the use
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of the term alleged as suggesting that the events, and by implication their injury, has not in
reality taken place.
Submissions by Victims and Concerned Persons must be given due consideration and so must
the Reasons as to whether or not the submission was taken into account. Remember that the
purpose of the Mental Health Act 2000 includes the additional mandate that the rights and
freedoms of patients are to be balanced with the rights and freedoms of others. Section 5 also
requires the Tribunal, when making decisions about forensic patients, to take into account the
needs of victims, as opposed to the risk to the victims.
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Statement of Reasons - Things you should know
Author: Michelle Radke
Changes in the new year to how we process Statements of Reasons
Feedback from members about the proposed changes, have shown that in the main there is
support for:
consultation taking place between members, initiated by the author of the reasons; and
electronic distribution of the material to enable the writing of the reasons.
From 1 January 2012, two changes regarding SOR processing will come into effect.
1. The Tribunal office will no longer send the draft statements of reasons to the medical and
community members to check. It will be assumed by the office that consultation is
complete on receipt of the reasons from the author.
1. When writing reasons, material such as the Record of Proceedings, members notes and
material before the Tribunal will be sent electronically to authors of reasons. Hard copies
will no longer be sent to authors of the reasons.
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Appeals Update from the second half of 2011
Author: Michelle Radke
The Mental Health Court has been sitting approximately every six weeks throughout 2011 and
there has been an increase in the number of appeals heard during each sitting. Currently
10-15 appeals are considered in a sitting. We do not report on adjournments and withdrawn
appeals. In the second half of this year, across four sittings, there have been 36 appeals
dismissed and seven appeals upheld.
In BAS, the Attorney-General sought the deletion of a LCT condition that provided that "After
three months, the requirement of supervision may be removed for absences which are
planned; both for planned and structured rehabilitation purposes." The Attorney-General
argued that it was inappropriate that the treating team have the discretion to remove the
requirement of supervision as that discretion was the sole domain of the Tribunal. In upholding
the appeal, the Court made it clear that the basis of the appeal was that there was insufficient
evidence before the Tribunal to make that decision in this case, stating that "It is that context in
which the inappropriateness is being referred to rather that [sic] than that the Tribunal cannot,
at any time, allow a program which would allow, at the discretion of the treating team, a
progressive course of action."
The Court found that the requisite evidence was not before the Tribunal as the treating team
had not put forward unsupervised absences as part of the progression of graduated leave.
There was thus, no evidence before the Tribunal to support the fact that such leave did not
represent an unacceptable risk. The Tribunal had therefore gone beyond its powers to grant
this form of leave. The Court was satisfied that this was a situation where the Tribunal "has
imposed, as part of the graduated release, something that was not recommended by the
treating team."
This is a very restrictive interpretation which implies that the Tribunal is bound by the treating
teams evidence as to what does and doesnt constitute an unacceptable risk. It removes the
Tribunals discretion to assess the treating teams recommendations as being either too
restrictive or too lenient. This decision was made in July 2011, and there have been no further
decisions commenting upon the Tribunal being limited to the recommendation of the treating
team.
MPV is an interesting case where the Tribunal had revoked a Forensic Order in circumstances
where the patient was AWOP, living interstate without having first obtained approval to move
out of Queensland. Ultimately, the Court found it unacceptable that a patient could circumvent
the formal approval process put in place by the Act by being AWOP and acting of their own
volition.
Boddice J states, "The scheme of the Act is to ensure that patients, the subject of a forensic
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order, only travel interstate with permission, and that thereafter they are monitored for at least
two years prior to revocation of the forensic order. The Act contains express provisions
providing for the apprehension and return of patients who are absent without permission from
Queensland. The existence of such provisions are relevant considerations for the Tribunal
when determining whether it ought to revoke a Forensic Order in respect of a patient who has
absconded from Queensland without permission, and remains out of Queensland. To find
otherwise is inconsistent with the purpose and scheme of the Act. It would effectively allow a
patient, who has unlawfully left the jurisdiction in contravention of the forensic order, to receive
the benefit of that unlawful conduction and defeat the restriction imposed by section 204(2) of
the Act."
In rehearing the matter the Court found that the Tribunal, having regard to the considerations in
section 203(7) should not have been satisfied that the patient did not represent an
unacceptable risk to themselves or others and thus should not have revoked the Forensic
Order. The Court found the patients continued absence without permission, along with his
presentation to mental health services interstate and superficial rapport with that treating team
and continuing risk factors related to drug use and disorganisation, indicated he remained a
significant risk. The effect of the decision was that the patient should be returned to
Queensland under the authority to return.
In ARM the appeal was upheld on the specific facts of the case. The Tribunal had included the
following provision in the LCT "that the patient not have unsupervised contact with a child
under 10 without first providing consent to the treating psychiatrist to disclose relevant
information about the index offence to the parent or carer of the child." The Attorney-General
appealed on the basis that this provision did not adequately address the concerns given the
facts of the case, i.e. the patient had killed her child and prior to the offence she had heard
clicking noises. The evidence before the Court on Appeal was that the patient was hearing
noises like marbles dropping upon the floor of the upstairs flat. The Court amended the LCT to
prohibit unsupervised access to children under 10.
CLG was another appeal by the Attorney-General in relation to a specific condition of LCT
approving unescorted daytime absences from the AMHS, limited to the grounds of the facility.
The Attorney-General objected to the approval of unescorted but supervised absences as the
Tribunal should not have been satisfied the patient did not represent an unacceptable risk, in
circumstances where the patient had recently undergone a change in medication to promote
greater stability of his mental state, following an altercation with a fellow patient. The Court
upheld the appeal given the circumstances of the case.
In DLC, the Attorney-General appealed against the Tribunals decision to revoke a Forensic
Order at the first review of the FO. In upholding the appeal, the Court was persuaded by the
history of the patients illness and the need for on-going treatment, in this case, maintenance
ECT. In its Reasons for Finding the Court reiterated that Forensic Orders are more effective to
achieve continuous treatment of a mental illness than fragile ITOs. In this decision the Court
makes a strong statement about how FOs differ from ITOs and why FOs are to be preferred in
circumstances when a patient also meets the criteria for an ITO. In the circumstances of the
case, the Court also saw the need to point out that FOs do not carry the insinuation of
criminality.
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In JFL, the Court upheld a patient appeal against the Tribunals decision refusing to transfer
the patient from Baillie Henderson Hospital to The Park Centre for Mental Health. The Court
set aside the Tribunals decision and ordered the transfer, accepting that the patient had
family and cultural ties with the area nearer to The Park. Emphasis was also placed on the
current treating psychiatrists evidence that the current placement was inappropriate. The
Reasons for Finding note that the real issue was the practicalities of the situation but the Court
did not view this as an impediment to approving the transfer.
RDA was another appeal by the Attorney-General about a specific provision of LCT. The
Court upheld the appeal finding that the Tribunals provision was unclear and that on the
evidence before the Tribunal and the Court 24 hour supervision provided by Life without
Barriers was required. There is a lengthy Reasons for Finding which examines the specific
features of this case that led to the Court conclusion.
One appeal that was dismissed in June 2011 that is of considerable interest to the Tribunal, is
BDS (decision No 6 of 2011 available in the judgments of the Mental Health Court which can
be found at: http://www.sclqld.org.au/qjudgment/2011/QMHC/+000). In dismissing the appeal
by the Attorney-General the Court found that it was an abuse of process for the
Attorney-General to take a contradictory position on appeal to that taken before the Tribunal.
In this case, the Tribunal had revoked a Forensic Order. At the hearing before the Tribunal,
the Attorney-Generals representative had not opposed the revocation of the order.
Nonetheless, there was an ensuing appeal of the decision. The Courts Reasons are to the
point and clear with Boddice J stating:
"The Court of Appeal has recognised in criminal matters that it is only in exceptional
circumstances that the public interest would justify an appellate court acting upon an argument
advanced on appeal which was not in accordance with submissions which had been made
before the primary Court; R v. KU and others, ex parte the Attorney-General of Queensland
[2008] QCA 154.
There is even greater reason why that approach should be adopted in respect of proceedings
dealing with the vulnerable and how they are best to be treated and cared for within the system
that exists in Queensland for the treatment of those who are mentally ill.
There would need, to be exceptional circumstances to justify a stance being taken by the
Attorney-General which is contrary to the position that was adopted before the Tribunal.
Generally, those exceptional circumstances would need to be circumstances based on
considerable concern in respect of the safety of the community having regard to a change in
the circumstances of a person, the subject of the appeal."
Appeals upheld will be sent to you by email within the next few days as currently all new
material for the website is on hold. Merry Christmas and a Happy New Year to you all.
page 22 / 30
page 23 / 30
Report Form Changes
Author: Shelley Fisher
A new Report Form has been developed for forensic order (disability) reviews that addresses
the information requirements of the Tribunals considerations under MHA2000 section 203
(6A). The Tribunal Rule Amendment 2011 expands the seven day time frame for receipt of
report to both the clinical report and now the report for a forensic order (disability) review; and
extends the obligations for providing the report to the senior practitioner in the FDS
environment in addition to the treating psychiatrist in an AMHS (as was previously the case).
Note that the Tribunal Rule Amendment 2011 still contains no penalty for non-compliance
and fundamentally is a rule that establishes the parameters for the report requirements of the
Tribunal. Where the Rule has not been met, the Tribunal should not arbitrarily adjourn the
matter but must still exercise judgement as to the sufficiency of other opportunities for
obtaining expert evidence from the treating practitioner including oral evidence in person or by
phone or videolink.
The report form for a forensic order (disability) review is now available for clinicians in CIMHA.
The same report form applies to forensic disability clients (detained in the FDS) and patients
under the new category of forensic order (Mental Health Court Disability) in an AMHS.
Reference on the form to senior practitioner applies to the FDS environment. It is anticipated
that, as before, the report will be completed by the treating psychiatrist/treating doctor/case
manager in an AMHS and approved by the treating psychiatrist.
Another change that has happened to the report form is in relation to the cultural pages.
Separate pages have been developed for Indigenous cultural information and cultural
information for patients from CALD backgrounds. The Indigenous page will stay within the
clinical report form at this stage. The cultural information page for CALD will be available in
CIMHA as an attachment, and authors of reports will be prompted to access the correct page
when reporting about a patient for whom cultural information is relevant to the clinical
management and to the Tribunals considerations.
page 24 / 30
L&D Update
Author: Julia Krawitz
Masterclass
Masterclass Archive
To ensure that we can provide Masterclass content as soon as possible after a Masterclass
evening we now record and archive each session. A link to each archived session will be sent
out after each Masterclass. Once you click on this link you will be able to hear and see the
session the same way those who attended Wimba did. This link will also be posted under the
relevant Masterclass topic in MHRTL.
Podcast
For those of you who want to listen to a Masterclass session we are creating audio files so that
you can download the session to your MP3 player. This will enable you to hear the
Mastercless session wherever you are. There is a "how to" download podcast video in MHRTL
if you are uncertain how to load your MP3 player.
Forums
Thank you to those people who have posted to our Christmas forum. This has been a great
time to officially launch the process. Forum posts will be linked to Masterclass sessions and
provide everyone with the opportunity to make comments, raise questions and have a
discussion on the relevant topic. The forum can be another way that people can contribute to
Masterclass discussions. Forums are not like a real time conversation; rather they are
available for comment when you are available.
Profiles
The Profiles Program for members has been reviewed and the template has been simplified.
Meetings will be scheduled between members and the President in the New Year. The
Executive Support Officer (ESO) will be in contact with you with more detail.
page 25 / 30
The Year in Reflection - key achievements:
Foundations Event (including Induction and Foundation Courses): This event had a fabulous
attendance with 81 of the 85 members attended this event in March 2011.
Hearing Simulation: This resource brings alive the hearing experience for our patients, family
members and services through the use of animated characters. You can experience this
resource by using this link:
http://www.mhrt.qld.gov.au/mhrt-an-interactive-experience/
Moodle 2.0 upgrade: MHRTL has had a small makeover. You may notice the colour is slightly
different and the first main menu is slightly different. The first menu in MHRTL will require you
to click on members to access all relevant material.
Member and Staff Profiles Program: Both programs have had sign off and are ready for
implementation in 2012.
Wishing all members a Merry Christmas and a Happy New Year!
page 26 / 30
Clarification on FBT Liability
Author: Shelley Fisher
Recently clarification was sought in relation to a member inquiry about FBT liability and the
impact on PBI status in circumstances where the Tribunal member is employed in a District
mental health service (and in so being is eligible for the $17000 FBT free threshold because
the heath service attracts the status of a Public Benevolent Institution in terms of the taxation
laws) and also works for the Tribunal and at the same time has undertaken salary packaging
items that incur an FBT liability (for example, a novated car lease).
While it had been considered that working for the Tribunal should not impact a Queensland
Health employees tax status the matter had become clouded by the fact that Tribunal
members are paid their sitting fees through the Queensland Health payroll system and as
such, acquire an employee number. From a system perspective, this has meant that those
employee/members were being viewed as being Corporate Office employees and District
Health Serivce employees and so potentially forfeiting their PBI status.
This matter has involved relatively complex taxation issues that have taken some time to work
through. However, based on the information supplied to Queensland Health that has
allowed detailed consideration of the functions that are performed by sitting members it has
been concluded that sitting members of the Mental Health Review Tribunal are not considered
to be concurrent employees of Queensland Health.
Therefore, sitting on the Mental Health Review Tribunal will not alter the ability of Queensland
Health to apply the $17,000 public hospital FBT exemption cap against the value of any fringe
benefit (including salary sacrifice fringe benefits) provided by Queensland Health whilst the
member is working exclusively in Queensland Health positions deemed eligible for the cap.
Put simply sitting on the Mental Health Review Tribunal will not alter the FBT edibility status of
positions within Queensland Health.
If a sitting member were to occupy a position within Queensland Health that does not enable
the $17,000 public hospital FBT exemption cap to be applied, any fringe benefit provided by
Queensland Health would be subject to FBT. If theses benefits were salary sacrifice benefits,
the FBT incurred would be recouped from the employee as per the terms of the salary sacrifice
agreement.
It should be noted that members are only able to salary sacrifice sitting fees into
superannuation.
page 27 / 30
New Motor Vehicle Allowance Rates
Author: Shelley Fisher
Please note that on 17 November 2011 teh Governor in Council approved new motor vehicle
and travel allowances for board members. The new rates replace the rates approved on 26
May 2011 and are available on the JAG internet at:
http://www.justice.qld.gov.au/fair-and-safe-work/industrial-relations/queensland-government-e
mployees/policies/remuneration-of-part-time-chairs-and-members-of-government-boards-com
mittees-and-statutory-authorities
page 28 / 30
Comings and Goings
Author: Shelley Fisher
Not too many changes around the office this time. The office environment is more stable and
people are back in their own positions after leave and secondments.
There was recently a recruitment process for Hearings Coordinators assisted by Pat Hall
(Community Member) on the selection panel (thanks Pat!). Lisa Wallace, who has been acting
Hearings Coordinator for more than a year and a half was successful in being appointed
permanently to the position. Barry approved an additional Hearing Coordinator for six months
and Sally Dreghorn has been appointed to that position. Sally comes to us from the Office of
the Public Trustee. Trina Osborne will be returning from secondment to her Hearing
Coordinator position in the New Year.
Maryann Chapman, Hearings Administration Officer has been on secondment for almost one
year and has recently resigned her position to take up an opportunity to travel with her family
for an extended period.
In the Business Team, Michael Reda resigned as Administration Officer, and has made a
move to Melbourne.
On the Member side of things, Lorna Moxham (Community Member, Rockhampton) will be
ending her association with the Tribunal at the end of the year as she takes up her new
appointment as Professor of Mental Health Nursing at the University of Wollongong. We are
currently running a recruitment campaign in the Rockhampton Region as we have lost the
availabilty of some members in that area at the present time due to other work and family
commitments.
Simon Burgess (Legal Member, Bundaberg) is also making changes and will not be sitting for
the Tribunal after January 2012 as he takes up his new appointment with the DPP in Lismore,
New South Wales.
Pat Hall (Community Member, Brisbane) is also jetting off in March 2012 to spend four months
in London on sabbatical with her husband.
Also, for those who remember the previous President of the Tribunal, Frank Clair, I was
recently in contact with him and he asked to be remembered to everyone. He and his wife
Thea have bought a house in south-western France and are about to head off there in March
with the intention of sharing their time between France and Australia in future!
We wish everyone well in their new and interesting ventures!
page 29 / 30
Whats On in 2012
Author:
20-21 February
Monash University Faculty of Law - Implementing Human Rights in Closed Environments
Monash University Law Chambers, 555 Lonsdale Street
More information www.secureregistrations.com/Monash
Early bird registration closes 21 December 2012
23-24 February
THEMHS Annual Summer Forum - Confronting Self-Harm:from understanding to resonding
Aerial UTS Function Centre, Level 7, 235 Jones Street, Ultimo, Sydney
More information at www.themhs.org
28-29 March 2012
Improving Social Determinants of Indigenous Health - Coordinating holistic policy and services
to increase life expectancy
Novotel, Darling Harbour, Sydney
more information at www.improvingindigenoushealth.com
21-24 August 2012
22nd Annual TheMHS Conference - Cairns Convention Centre, Queensland
more information www.themhs.org
23-24 August 2012
AIJA Conference - Doing Justice for Young People in Australia and New Zealand, in Brisbane
more information http://www.aija.org.au/conferences-and-seminars.html
15-16 October 2012
2nd World Congress on Adult Guardianship - Guardianship and United Nations Disabilities
Convention: Australian and International Perspectives
Hilton on the Park Hotel, Melbourne
Deadline for abstracts 29 February 2012. More information http://agac2012.conorg.com.au
November 22-25
ANZAPPL Annual Conference 2012 - Melbourne Australia
For RANZCP conference and events program for 2012 go to
http://www.ranzcp.org/resources/events.html
page 30 / 30