Twelve months have now passed since the commencement of the Mental Health & Wellbeing Act 2022 (the Act). While the intent of the Act is to reduce compulsory treatment, the Tribunal and other stakeholders understood that initially there would be an increased demand for hearings due to the maximum duration of community treatment orders being reduced from 12 months to 6 months.
Planning for the impact of this change commenced in 2021/22. The Tribunal decided to work on the assumption of every 12-month community treatment order under the previous Act becoming two six month orders under the current Act, and necessitating two Tribunal hearings. Under this approach we developed our processes and capacity to manage an increase of up to 1500 hearings per year. However, this generous estimate is being exceeded. The marked upward trend in the number of hearings began in 2022/23 and is continuing beyond the Act’s first year of operation. It seems to be the result of multiple factors.
By way of overview:
- 2022/23 – hearings increased by 7.4% (696 hearings)
- 2023/24 – hearings increased by 10.8% (1087 hearings)
- 2024/25 – for the first quarter, to 30 September 2024, hearings have increased by 23% (590 hearings)
In this environment, while the Tribunal has significantly increased its hearing capacity (currently 10 divisions or 60 hearings per day compared to a maximum of eight divisions or 48 hearings per day in June 2023) our ability to conduct all required hearings is tenuous. This is a consequence of both the increase in the demand for hearings, as well as the finite capacity of our staff and member resources. Like any entity working at full capacity, unplanned absences may not be able to be covered and, as a result, scheduled divisions may need to be cancelled.
To date we have not missed any hearings required under the Act, but there have been impacts:
- Some hearings have had to be rescheduled at short notice.
- On occasion it has only been possible to list an urgent ECT application by rescheduling another matter.
- A late application for a treatment order may not be accepted if there is no capacity to list it for hearing.
We are acutely aware that last minute changes to hearing arrangements causes significant inconvenience, and at times distress, for patients, their support people, legal representatives and the staff and clinicians in mental health services who have prepared for and made time to attend hearings. We apologise for this and offer the assurance that we only do this when there is no other option.
The Tribunal is working on a range of strategies to stabilise our hearing capacity in the short to medium term, but there is the potential that if hearing demand continues to increase, we may reach the point of not always being able to conduct all required hearings. At any point when the Tribunal’s hearing capacity is unable to meet demand, we will use the following list of priorities to decide which hearings to list:
Priority 1 - Electroconvulsive treatment (ECT) applications for adults unable to give informed consent and patients under 18 years old.
Priority 2 - Hearings about a treatment order for patients who have not had a Tribunal hearing during their current episode of treatment.
Priority 3 - Hearings about a treatment order for patients who have had a Tribunal hearing during their current episode of treatment.