Lacking Insight - Community Law

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4 > The Views of the StakeholdersThere is a diverse range of opinions held bystakeholders about the efficacy of the Board’sprocesses. Similar to the previous section of this report,this section aims to allow the opinions of stakeholders –be they critical or not – to speak for themselves.Inquisitorial v AdversarialIs the Board performing itsinquisitorial role?There is a wide range of stakeholder opinion onthe subject of whether or not the Board properlyundertakes its role as an inquisitorial tribunal. Somesay the very strength of the Board is its inquisitorialform, which they believe results in its duties beingcarried out with a satisfactory level of rigour.I think it is a strength . . . that it is an inquisitorialmodel and not an adversarial model and I thinkthat is very important, particularly where youhave got a low level of representation, particularlywhere you have got people who are vulnerable ina lots of ways and maybe not able to understandthe content of the material that is put, not able toformulate questions, not able to push and test Ithink it is vital that it be inquisitorial.Former Mental Health Review BoardPresident and Former Public AdvocateOther stakeholders view the constitution of theBoard, with its three members from different fields ofexpertise – namely law, psychiatry and community –as a strength, one which permits a comprehensiveassessment of the consumer’s status as aninvoluntary patient.I think the Board’s strength is being anindependent body coming from outside theservice. The other strength is the constitution ofthe Board - having a lawyer or a legal memberchairing the Board, having a lay person on theBoard giving the opportunity [for the consumer] tosee people other than psychiatrists, and there arealso independent psychiatrists on the Board . . .Senior PsychiatristInterestingly, in a seemingly contradictory statement,this same stakeholder goes on to suggest that oneof the key roles of the Board is to offer reassuranceto the consumer about the treatment they arereceiving. There is a distinct difference betweenbeing told that your treating clinician is correct andhaving the clinician prove the validity of his or herdiagnosis and treatment regime.Obviously the [treating] psychiatrist is wanting totell the fact of the mental health and symptomsof mental health . . . to be able to assess whetherthere is a mental illness or not. In that, all ofthe psychiatrists could also be reassuring andsupportive to the person. That is why there isanother psychiatrist listening to him or her in theinterview [Board hearing]. So it is a therapeuticrole in that, it is like a second opinion-type role.It is a very short second opinion but it has thatpurpose of reassuring the person about thesituation itself and what is happening to him or her.Senior PsychiatristOther stakeholders are deeply concerned aboutthe level of the Board’s inquiry. This concern isdirected particularly to the psychiatrist member. Anumber of advocates expressed concerns that thepsychiatrist member does not ask enough questionsof the treating clinician, given that insufficient medicalreports are, at times, presented to the Board.64
One of the issues that I constantly have inhearings is I feel that they haven’t done justiceto the hearing. I mean a hearing’s meant to beinquisitorial, so they’re meant to ask questionsand make inquiries and the number of timesthat no questions are posed to the doctor in thehearing! … You have a psychiatrist who sits onthe Board who’s meant to be a medical expert. . . And the evidence that’s before the Board iswhat the [treating] doctor says, and a medicalreport, which is often really brief and reallypoor. So you would think that there would besome level of inquiry that should be undertakenin hearings to make sure that the diagnosis isjustified, that the treatment is justified, you know,all of those things are really important and it’snever – you don’t see that really thorough level ofinquiry happen at Board hearings.Legal RepresentativeI think the level of inquiry, just the level ofinquisitorialness, in terms of doctors justifyingthe diagnosis, justifying the treatment, justifyingtheir conclusion that they will deteriorate. Thosethings are just not explored on any level andas an advocate you can raise them as issues,[but] you’re not a medical expert, and it is theresponsibility of the medical expert on the Boardto take that up. But you don’t see that, you seethem kind of going through the motions becausethey have to. And I think that makes a differencein terms of how clients see the hearings as well.If they know that the doctor’s been asked asmany questions as they have, maybe they’ll thinkthey got a fairer hearing.Legal RepresentativeThe Board: a Rubber Stamp?The question of professionalcourtesyThe issue of professional courtesy, whether or notclinicians on the Board are reluctant to challengethe judgment of treating clinicians, is an issue thatconcerns consumers. Stakeholders are, to a certainextent, also concerned that clinicians sometimes givethe appearance of being reluctant to undermine theauthority of their peers.No I think we should have a psychiatrist sittingall the time. I don’t think they’re so dominantin terms of the decision-making process or thedynamics as you might fear. I think they often feela bit out on the edge because . . . if there’s goingto be a split, it’s more likely to be lawyer andcommunity person against the psychiatrist. So Ithink they play a really important role. Sometimesthe problem is that I don’t think they shed theircollegiality as readily as perhaps they should,sometimes, and they are more prepared to divertcolleagues than is ideal.Board Member (Legal)However, despite this, stakeholders are of the viewthat the problem of professional courtesy is to a largeextent balanced out by the questioning of legal andcommunity members.. . . for the most part I think psychiatrists are loathto overturn their colleagues’ decisions, I thinkthat is a phenomenon, but I think the lawyers andthe community members don’t feel that sameimperative, so there’s a balancing out of whatwould otherwise be an inclination to show overmuchdeference to clinician decision-making.Board Member (Legal)65
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14 years. Making the point that she
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ForewordWe have now ushered in a ne
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1 > Summary“[I felt] disempowered
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Lacking Insight• Encouraging cons
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Page 24 and 25: 2 > The ContextMental Health Review
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Lacking Insight - Community Law

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