Terms of reference

Review principles

A review will be undertaken in relation to the operation of the Mental Health Review Tribunal in respect of forensic patients. A key focus of the review will be consideration of whether current law and current operational processes and procedures appropriately balance:

• community safety
• the interests of victims and the families of such victims
• the care and treatment needs of forensic patients.

Terms of reference of the review

The review will consider and make such findings and recommendations for administrative, procedural or legislative change as it considers appropriate regarding:  

• whether decisions by the Mental Health Tribunal on leave and release in forensic cases strike an appropriate balance between the interests of community safety, victims (including the families of victims) and the care and treatment needs of forensic patients, having regard to matters including, but not limited to:
• the information available to the Tribunal and the method adopted to assess and determine questions of risk of harm (to victims and their families, to the community and to patients)
• the legislative test for leave and release in the Mental Health (Forensic Provisions) Act 1990, tribunal interpretation of the test and similar tests relied on in comparable jurisdictions
• the methods available for supervising forensic patients whilst on leave and release
• options to improve the engagement of victims with the Mental Health Tribunal, including in relation to information available to victims, the mechanisms for victims to be heard by the Tribunal when considering the leave or release of a forensic patient, and support services
• whether the policy objectives for prohibiting the publication of the name of any person in relation to a forensic matter before the Tribunal remain valid
• whether the criteria used to recruit members of the Mental Health Tribunal are appropriate.

Process of review

The review will be undertaken by the Hon. Anthony Whealy QC, a lawyer and former judicial officer with the significant experience and expertise required to undertake the review (the Reviewer).  The Reviewer will be provided with appropriate administrative support staff.

The review will be conducted through:

• a public call for submissions to the review that will remain open for 8 weeks
• meetings or engagements with interested groups or individuals, including but not limited to consultation with representatives from victims groups, forensic patient groups and people with a lived experience of mental illness, carers, the medical profession and other health professions, law enforcement agencies and the legal profession.

The review is not to investigate or make findings in relation to individual forensic patient cases or Tribunal decisions, but instead will assess and make recommendations for improvement in relation to broader forensic administration and appointment processes (including by having regard to the findings and decisions in individual cases and Tribunal decisions).

The review is to report to the Minister for Mental Health and the Attorney General in December 2017.