Monday, 08 April 2013

Kracke v Mental Health Review Board (VCAT) - Nov 2008

This was an appeal to VCAT against the decision of the Mental Health Review Board.

The main issue was whether the failure of the Board to conduct a review of Mr Kracke's community treatment order as required under the Mental Health Act 1986 meant that order was invalid. The Board's conclusion was that while the failure to review was extremely regrettable, it did not invalidate the order. The Board therefore determined that the appellant's treatment as an involuntary patient was in accordance with the Act.

The Commission made submissions that the Board was acting in an administrative capacity when conducting hearings under the Mental Health Act 1986 and required to act compatibly with human rights.

VCAT considered that both the Board and itself were acting in an administrative capacity when reviewing Community Treatment Orders under the Act and, as public authorities, were obliged to act compatibly with human rights under section 38 of the Charter. VCAT held that the Board's failure to review the treatment order within the period required by the Act was a breach of Mr Kracke's rights under the Charter. In particular, the circumstances of the case engaged Mr Kracke's rights to freedom from medical treatment without his full, free and informed consent (section 10(c)), to freedom of movement (section 12) to privacy (section 13(a)), to liberty (section 21), and to a fair hearing (section 24(1)).

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