Mental Health Legal Centre Inc.
Right to a Fair Hearing
Kracke v Mental Health Review Board, VCAT, April 2009
Facts:
In this test case pursued by the Mental Health Legal Centre, the Mental Health Review Board (MHRB) was found to have breached Mr Kracke's right to a fair hearing by failing to review his treatment orders within a reasonable period of time.
Mr Kracke was a client of the Mental Health Legal Centre and a patient under the Mental Health Act. His Involuntary Treatment Order (ITO) went for two years without being reviewed. Mr Kracke's second extended Community Treatment Order (CTO) went for one year without being reviewed, and then only after it was replaced by the third extension (which was also reviewed late).
Under the Mental Health Act, ITOs must be reviewed quickly and then periodically at least every 12 months from the initial review. CTOs must be reviewed within 8 weeks of any extension. However, the Mental Health Act is silent as to the consequences of the MHRB's failure to review ITOs and CTOs within the time limit required by the legislation.
It was submitted on Mr Kracke's behalf that exceeding the time limit meant that the safeguards in the system had failed and that Mr Kracke's human rights had been breached. The Mental Health Legal Centre argued that, as a result of this failure, the treatment orders became invalid immediately when the time for conducting the reviews expired.
Decision:
Justice Bell of VCAT decided that the MHRB had breached Mr Kracke's human right to a fair hearing under section 24(1) of the Charter of Human Rights and Responsibilities by failing to conduct the reviews within a reasonable time. However he found that the treatment orders were valid, despite having been reviewed outside the statutory time limits. Justice Bell said that, overall, the system had operated in Mr Kracke's favour and, for this reason, the treatment orders were lawful. Nonetheless, he declared that Mr Kracke's human right to a fair trial had been breached and emphasised that treatment orders 'must' be reviewed within the time limits required by the Mental Health Act.
The complete transcript of the decision can be downloaded below:-
Kracke full-text transcript (AustLii website)
