Taking a reflexive turn: Non-adversarial justice and mental health review tribunals

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 and considers four 'psycho-legal soft spots' in tribunal practice. These are the timing of tribunal review, 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.