Mental Health Tribunals: 'TJ' Implications of Weighing Fairness, Freedom, Protection and Treatment

Journal of Judicial Administration, Vol. 17, No. 1, pp. 46-59, 2007

Sydney Law School Research Paper No. 08/08

33 Pages Posted: 3 Jan 2008 Last revised: 28 Dec 2019

See all articles by Terry Carney AO

Terry Carney AO

The University of Sydney Law School

David Tait

University of Canberra

Duncan Chappell

The University of Sydney Law School

Fleur Beaupert

Independent

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 paper 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 is vital to answering these questions.

Keywords: Mental health, tribunals, therapeutic jurisprudence, fair process

JEL Classification: K10, K32, I18

Suggested Citation

Carney AO, Terry and Tait, David and Chappell, Duncan and Beaupert, Fleur, Mental Health Tribunals: 'TJ' Implications of Weighing Fairness, Freedom, Protection and Treatment. Journal of Judicial Administration, Vol. 17, No. 1, pp. 46-59, 2007, Sydney Law School Research Paper No. 08/08, Available at SSRN: https://ssrn.com/abstract=1080086

Terry Carney AO (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

David Tait

University of Canberra ( email )

Law Faculty
Canberra, ACT 2601
Australia

Duncan Chappell

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

Fleur Beaupert

Independent ( email )

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