This article seeks to critically examine whether the reliance upon clinical judgment in decision-making under the Mental Health Act 1986 (Vic.) (MHA) and the Mental Health Review Board (MHRB) assists or hinders Parliament's key objective in passing the current MHA in 1986: least restrictive treatment.1
Keywords: MHRB; parliament; mental health act; treatment
The objectives of the MHA are in essence to provide for the care, treatment, and protection of mentally ill people (s. 4 MHA). These objectives are administered through the provisions of the MHA that among other things allow for the involuntary detention and treatment of those who appear mentally ill, require immediate treatment through admission to hospital, cannot or will not consent to treatment, and are seen as a danger to themselves or the community (s. 8 MHA).
In addition, the Parliament's key intention for the MHA is a least restrictive treatment model (Mental Health Bill No. 1,1985, p. 71).2 To ensure this intention is met, Parliament wants the MHA to adopt "neither a legal nor medical paradigm. It takes the approach that the state of a person's mental health is a matter for clinical judgment" (p. 72). The state of a person's mental health determines whether they have the capacity to consent to or refuse treatment and thereafter the treatment options. Via their privileged position of clinical judgment, psychiatrists are employed as the gatekeepers of patient care, treatment, protection, and rights. (The MHA is to "mirror the present day outlook" [p. 72].)
There is no evidence to suggest that mental patients were consulted in the drafting of this legislation (according to McCubbin & Cohen  there was no such consultation in the US or Canada) or in choosing psychiatry as an omniscient decision-maker. However, perhaps in acknowledgment of this, and in order to regulate an otherwise plenary discretion, the MHA set up the MHRB.
THE MENTAL HEALTH REVIEW BOARD
The MHRB periodically reviews and hears appeals against involuntary detention (and therefore treatment) (s. 22 MHA). Parliament normally decides that an administrative board should hear reviews and appeals rather than the judiciary, because "[o]ften, the decision-maker will have more experience in the consistent application of applicable administrative rules to achieve fairness to a wider range of people than typically come before the courts" (Minister for immigration and Ethnic Affairs í Wu ShangLiang (1996) 185 CLR 259, per Kirby J). Also, administrative boards are cheaper, more efficient, certain, and fast. That the MHRB consists of a legal, psychiatric and community member suggests that this specialist knowledge is integral in achieving a consistent level of fairness. However, unlike most administrative boards, the MHRB is deciding upon patient liberty. As such, a system of open justice and unbiased decision-making open to accountability should be in place.
However, there are a number of potential problems with these elements in the MHRB. For example, the Board "must have regard primarily to the patient's current mental condition and consider the patient's medical and psychiatric history and social circumstances" (s. 22(2) MHA). In doing so, "the Board will always give great weight to the opinion of treating doctors . . . it would only be in a rare case that a board would reject a clinical judgment reached by a treating doctor" (In the Appeal of TJS, Mental Health Review Board, Decision No. 220989:701:525372 [Delaney, 1992, p. 581]). And, "it is almost impossible in most places to find any psychiatrist at all who would even consider providing a counterexpertise in favour of a user contesting a civil commitment order" (McCubbin, Dallaire, Cohen, & Morin, 1999).
This means that a mental patient's review or appeal depends wholly on clinical judgment. On the one hand, this is positive, because the treating doctor presumably knows the patient better from their frequent contact and care, although anecdotal evidence suggests "frequent" may be an overstatement-a more realistic estimate is 15 minutes. …