Taking a Reflexive Turn: Non-Adversarial Justice and Mental Health Review Tribunals

Monash University Law Review, Vol. 37, No. 1, pp. 81, 2011

Monash University Faculty of Law Legal Studies Research Paper No. 6

22 Pages Posted: 16 Aug 2012

See all articles by Penelope June Weller

Penelope June Weller

Monash University - Faculty of Law; RMIT University - Graduate School of Business and Law

Date Written: 2011

Abstract

Mental health law and practice has been instrumental in the development of non-adversarial justice, particularly through the development of therapeutic jurisprudence which emerged from insights gathered in the mental health context. The expanding articulation of non-adversarial perspectives beyond mental health is, in turn, reshaping critical debate about current mental health tribunal practice. Tribunals are also being encouraged to consider human rights perspectives. Human rights concerns and non-adversarial perspectives intersect with the long-standing debates in mental health tribunal practice about participation, representation and the role of the tribunal in the management of a dispute. They also raise new questions about the scope of the tribunal powers with respect to the oversight of medical treatment decisions and the provision of medical services. This article considers the intersection of human rights and non-adversarial justice perspectives in mental health review tribunals. It examines the common conceptual ground occupied by human rights and non-adversarial justice perspectives in mental health review tribunals. It examines the common conceptual ground occupied by human rights and non-adversarial justice and considers four 'psycho-legal soft spots' in tribunal practice. These are the timing of tribunal, the participation of the person in tribunal hearings, legal representation before tribunals and the scope of tribunal powers. This article argues for an integration of non-adversarial justice and human rights perspectives.

Keywords: mental health law, non-adversarial justice, human rights, mental health review tribunals, medical treatment, tribunal powers

JEL Classification: K00, K10, K19, K20, K29, K30, K32, K40, K40, K41, K49

Suggested Citation

Weller, Penelope June and Weller, Penelope June, Taking a Reflexive Turn: Non-Adversarial Justice and Mental Health Review Tribunals (2011). Monash University Law Review, Vol. 37, No. 1, pp. 81, 2011, Monash University Faculty of Law Legal Studies Research Paper No. 6, Available at SSRN: https://ssrn.com/abstract=2130267

Penelope June Weller (Contact Author)

RMIT University - Graduate School of Business and Law ( email )

Melbourne
Australia
6139255710 (Phone)

Monash University - Faculty of Law ( email )

Wellington Road
Clayton, Victoria 3800
Australia

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