Mental Health: Kracke v Mental Health Review Board & Ors

VCAT Makes Declaration of Breach of Human Rights in Major Charter Test Case On 23 April 2009, Justice Bell, President of the Victorian Civil and Administrative Tribunal, handed down a much anticipated decision which discussed in detail important aspects of the application and operation of the Charter.  The case concerned the compulsory medical treatment of a man, Mr Kracke, without his consent, and without this treatment having been reviewed by the Mental Health Review Board as required by the Mental Health Act 1986 (Vic).

The Mental Health Act establishes a regime for 'involuntary treatment orders' ('ITOs') and 'community treatment orders' ('CTOs'), and prescribes time limits within which such orders (which are made by an authorised psychiatrist) 'must' be reviewed by the Board.  ITOs must be reviewed within 12 months.  CTOs must be reviewed within 8 weeks.  In Mr Krake's case, the ITO was not reviewed for over two years and the CTO was not reviewed for over one year.  However the Act is silent as to the consequences of a failure to review the order within the time limits specified.  Mr Kracke submitted that the Board's failure to complete the necessary reviews meant that the orders became invalid.

Because the application was in many respects a test case, the Human Rights Law Resource Centre sought and was granted leave to appear as amicus curiae.  The Centre was represented on a pro bono basis by Allens Arthur Robinson, together with Mark Moshinsky SC and Chris Young of counsel.  Mr Kracke was represented by the Mental Health Legal Centre - a specialist community legal centre - together with Alexandra Richards QC, Dr Paul Vout and Michael Stanton of Counsel.

In a landmark decision, and consistent with submissions of the HRLRC and the Mental Health Legal Centre, Bell J made a declaration that the Mental Health Review Board breached Mr Kracke's human right to a fair hearing under s 24(1) of the Charter by failing to conduct the reviews of his involuntary and community treatment orders within a reasonable time.

In addition to being a significant Charter case, the decision should also result in systemic reform to the timing and conduct of review hearings.  There was evidence in the case that a large number of reviews are conducted out of time.  Responding to this, Bell J stated:

"Must means must.  The time limits are not guidelines or aspirational.  Conducting these reviews within the specified time is not optional.  Doing so is mandatory and what the legislation expects to happen...

Everybody involved in making, administering and reviewing involuntary treatment orders and plans needs to work within that framework.  The time limits in the legislation must be respected.  Treating practitioners and other professionals must put the board in a position where it can fulfil its legislative responsibilities in this regard...

Reviews are the responsibility of the board to commence, conduct and complete within the specified time limits.  The terms of the legislation and the human rights of people with mental illness deserve nothing less."

In the Centre's submission, the involuntary treatment of the applicant without adequate review resulted in a breach of his rights under ss 10(c), 13(a), 10(b), 12, 21 and 24(1) of the Charter.  The Centre further submitted that those breaches of the applicant's human rights are serious and that real and effective protection of his rights supports the making of a declaration to this effect.

Justice Bell held that the Board had breached Mr Kracke's human right to a fair hearing.  As part of the human right to a fair hearing, hearings must be conducted within a reasonable time.  What is reasonable will depend on such factors as the complexity of the case, the importance of the case to the applicant, any delay caused by the applicant and the explanation for the delay.  On the evidence, Mr Kracke's case was not unusually complex and was very important to the protection of his human rights.  While Mr Kracke had requested adjournments, the primary reason for the delay was administrative oversight and consequently the failure to review was a breach of Mr Kracke's right to a fair hearing.

Mr Kracke adopted the submissions of the Human Rights Law Resource Centre as amicus in relation to remedies and submitted that Bell J should make a declaration that the Board violated his human rights.  Justice Bell accepted this submission in relation to the right to a fair hearing.  In doing so he commented that 'the Charter is not a toothless tiger'; it expressly preserves the existing powers of courts or tribunals to grant relief or remedies including declarations of unlawfulness in respect of the acts or decisions of public authorities.  In making a declaration that the Mental Health Review Board breached Mr Kracke's human right to a fair hearing under s 24(1) of the Charter by failing to conduct the reviews of his involuntary and community treatment orders within a reasonable time, Bell J concluded [at 820]:

"When a human right is breached, the individual is injured.  Because of the broader role of human rights, society is injured as well.  Human rights protect interests and values which society in Parliament considers to be fundamental, both to the individual and to the maintenance of democratic society based on the rule of law.  Where human rights are breached, both the individual and society have a strong interest in the remedy of a declaration, in which inheres their final vindication."

The decision is available at

A case note and analysis is available here.

The Centre was provided with outstanding and significant pro bono assistance in this case by Mark Moshinsky SC and Chris Young of Counsel, together with Allens Arthur Robinson.