Mental health tribunals: 'TJ' implications of weighing fairness, freedom, protection and treatment

Abstract

People with a serious mental illness warranting possible compulsory care and treatment are vulnerable and disempowered. Mental health tribunal hearings must balance the rights to freedom, public protection and need for treatment when making decisions about mental health care and treatment. Therapeutic jurisprudence principles, and other precepts, suggest that participants should be treated with dignity and fairness, be fully engaged, and be helped to recover. Overseas research has found that these aspirations are often not realised. This article reports findings from an ongoing Australian Research Council funded collaborative study (2005-2008) of the practice of tribunals in Victoria, New South Wales and the Australian Capital Territory. In particular, it highlights the challenge of giving concrete meaning to concepts such as "fairness" or "the most therapeutic outcome" when assessing the variety of practices found in different jurisdictions. The article argues that information and data about the socio-legal context in which mental health tribunals operate are vital to answering these questions.