Failure to Review Involuntary Treatment a Breach of Human Rights

Kracke v Mental Health Review Board [2009] VCAT 646 (23 April 2009) On 23 April 2009, Justice Bell, President of the Victorian Civil and Administrative Tribunal, handed down a significant 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 Attorney-General and the Victorian Equal Opportunity and Human Rights Commission exercised their rights of intervention under ss 34(1) and 40(1) of the Charter.  Leave was also given to the Human Rights Law Resource Centre to appear as amicus curiae and to the Secretary to the Department of Human Services to intervene as the contradictor.


Interpreting and Applying the Charter

Justice Bell commenced the decision by setting out the proper approach to interpretation and application of the Charter, which he referred to as 'historic legislation' which seeks to 'enhance our system of government by protecting and promoting those human rights which are fundamental to the rule of law in a democratic society'.  Having regard to this, Bell endorsed the following principles of human rights interpretation:

  • the Charter should be interpreted generously to give individuals the 'full measure of the fundamental rights and freedoms referred to'; and
  • the Charter should be interpreted as a 'living instrument', capable of growth and expansion, and applied in the context and in the light of present day conditions.

He held that the scheme of the Charter must be interpreted as a whole and that there are four broad steps to be followed when applying the Charter in cases such as the present:

  • Engagement: Does the legislation limit human rights, having regard to its interpretation using standard interpretation principles and the scope of the human rights?
  • Justification and proportionality: If legislation does limit human rights, is the limitation proportionate and justified under the general limitations provision in s 7(2)?
  • Reinterpretation: If the limitation is not justified, is it possible to interpret the legislation compatibly with the human rights under the special interpretive obligation in s 32(1)? and
  • Declaration of inconsistency: If it is not possible to reinterpret the legislation, should the Supreme Court make a declaration of inconsistent interpretation under s 36(2)?

In relation to each of these steps, Justice Bell referred extensively to international jurisprudence, including that of the UN Human Rights Committee, the European Court of Human Rights, and domestic jurisprudence from countries such as the United Kingdom, New Zealand, Canada and South Africa.


Justice Bell used the term 'engagement' to refer to situations where a statutory provision 'apparently' limits human rights; that is, it imposes a limit that needs to be justified under s 7(2).  To decide whether a provision engages a human right, it is necessary to interpret the provision according to the standard principles of interpretation and interpret the right in issue so as to identify its scope, then compare the two.  At the stage of identifying the scope of a human right, the criteria for 'justification' are not relevant.  The scope of the right is identified broadly and not legalistically in a way that fulfils its purpose and secures for individuals the full benefit of its protections.  The onus of establishing whether human rights are engaged rests on the party making that assertion.

Justification and Proportionality

Once it has been determined that a right has been engaged, the next question is to examine whether the limits placed on the right are justified and proportionate under s 7(2).  The onus of establishing that a limitation is justified rests on the party making that assertion.

Section 7(2) incorporates two requirements: legality and proportionality.  For a limitation to be legal or 'under law', it must be accessible, of sufficient precision and not arbitrary.  For a limitation to be proportionate it must be 'reasonable and demonstrably justified in a free and democratic society', which is to be determined with reference to the specified criteria set out in s 7(2).  Determining whether a limitation is proportionate requires a global judgment and not a mechanical, check-list approach.  The specific factors are given to help in making the judgment but they are inclusive and other criteria may be considered.  On the specific factors, Bell J stated:

  • Nature of the right: All of the human rights in the Charter, without exception, express and protect fundamental values and interests. The task here involves identifying those values and interests.
  • Importance of the purpose of limitation: The limitation must relate to societal concerns which are 'pressing and substantial' and should be identified with clarity and evidence if necessary.
  • Relationship between limitation and purpose: The limitation must be rationally and reasonably connected to its purpose. If the limitation on the right is not rationally connected, it is not justified however important the purpose may be.
  • Less restrictive means: The limitation should impair the right 'as little as possible'. It is not necessary for the limitation to be the least restrictive means available to achieve the ends, but that it 'fall within a range of reasonable alternatives'.


One of the central issues to be determined in this case was the application of the special interpretative provision contained in s 32 of the Charter.  Justice Bell emphasised that the interpretive obligation in s 32(1) is 'very strong and far reaching'.  With reference to international jurisprudence, he laid out a series of principles to be employed when undertaking the task of reinterpretation.  These included that:

  • the application of the obligation is mandatory;
  • it applies where the legislation is clear and unambiguous and may even require the court to depart from the legislative intention of parliament;
  • it may require the court to depart from pre-Charter interpretations of legislation;
  • the purpose of the legislation must be viewed 'at the appropriate level of abstraction';
  • it may require the court to read in words to legislation, read legislation down or narrowly, or read legislation broadly to achieve compatibility; and
  • generally, s 32(1) will not operate retrospectively to pre-Charter events, although it does apply to the interpretation of legislation, whenever enacted.

Justice Bell also clarified that s 32(1) applies to anyone who is required to interpret or give effect to legislation.  This means that legislation conferring an open-ended discretion must be interpreted as allowing the discretion to be exercised only in a manner which is compatible with human rights, assuming that is not inconsistent with its purpose.  Consequently, disputes concerning the compatibility of a public authority's actions will largely turn on questions of engagement and justification rather than the interpretation of the enabling provision itself.

Declaration of Inconsistent Interpretation

The decision did not discuss this issue as the power is conferred on the Supreme Court and, at least in the United Kingdom, has been observed to be a 'measure of last resort'.

Application of the Charter to Courts and Tribunals

Another important question to be determined was the application of the Charter to courts and tribunals and in particular, the question of whether the Board and VCAT were bound to act compatibly with all, or only some, of the Charter rights.  In order to answer this question it was necessary to determine the circumstances in which a court or tribunal will be considered to be also acting as a public authority.  Justice Bell recognised that there were three approaches that could be taken to this question: narrow, intermediate and broad.  He felt that the broad approach, which held that courts and tribunals were bound by all rights in the Charter, gave best effect to the purpose of the Charter.  However, he concluded that this approach was inconsistent with the structure of the Charter and that the intermediate approach should be adopted.

This means that courts and tribunals are bound to act compatibly with all of the human rights in the Charter when deciding cases that are administrative in nature in the public law sense.  When acting in a judicial capacity, courts and tribunals are bound to act compatibly only with certain human rights.  These are the particular rights concerning the powers exercised by the court or tribunal specifically in respect of the proceeding before it; namely ss 10(b), 21, 23, 24, 25, 26 and 27.  When VCAT reviews government decisions, such as the present decision of the Board, it is exercising its review jurisdiction which is administrative in nature.  It is therefore bound to act compatibly with all Charter rights.  When the Board is reviewing treatment orders it is also acting in an administrative capacity and is wholly bound by the Charter as a public authority.

Breach of the Right to Fair Hearing

After determining that the Board and VCAT were bound by each of the Charter rights as public authorities, Justice Bell applied his four step approach to each of the rights which Mr Kracke argued had been limited, beginning with the right to a fair hearing.  It was argued by the Attorney-General that this right applied only to judicial proceedings and not to administrative proceedings in courts and tribunals.  This argument was dismissed by Bell J who held that the right applied to both.

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.

Validity of the Treatment Orders

Mr Kracke argued that the failure to conduct the mandatory reviews made his treatment invalid.  He made this argument based on ordinary principles of statutory interpretation (relying on international human rights jurisprudence) and on the basis of the special interpretative obligation in s 32(1) of the Charter.  In deciding whether the orders were invalid, Bell J was required to apply his four steps of engagement, justification, reinterpretation and declaration of inconsistent interpretation.  As noted above, determining the meaning of a provision on ordinary principles of statutory interpretation is a necessary component of the first step 'engagement'.

Engagement: Scope of Human Rights and Standard Interpretation

After considering the scope of each of the relevant rights, including by extensive reference to international and comparative human rights jurisprudence, Bell J found that several of Mr Kracke's rights were engaged by his involuntary treatment.  Making the community treatment order engaged Mr Kracke's rights to freedom from medical treatment without his full, free and informed consent (s 10(c)), to freedom of movement (s 12) and to privacy (s 13(a)).  Making the involuntary treatment order engaged those rights as well as the right to liberty (s 21).  Reviewing (or failing to review) the treatment orders engaged all of these rights and the right to a fair hearing (s 24(1)).

Justice Bell did not consider that the right to be free from cruel, inhuman or degrading treatment had been engaged as he was not satisfied that the minimal level of severity had been reached.  He also did not consider that the right to liberty was engaged by a community treatment order as the right is concerned with liberty in a traditional, physical sense and is not engaged in the absence of detention.

Justice Bell held that on ordinary principles of statutory interpretation, the failure by the Board to conduct the reviews of Mr Kracke's treatment orders within the specified times did not render the orders invalid.  This conclusion was reached because, while the failure to review was unacceptable, the purpose of the legislation was to ensure that mentally ill people receive such care, treatment and protection as is medically necessary.

Justification and Proportionality

After identifying the rights engaged, Bell J undertook a proportionality inquiry to determine whether the limits placed upon those rights engaged were justifiable with reference to s 7(2). The key question was whether holding an unreviewed treatment order to be valid was an unjustifiable limit on the patient's human rights.

Justice Bell held that the limit was proportionate and met the requirements of s 7(2).  The purpose of the limitation was to ensure that necessary medical treatment was given to people who are mentally ill.  This was a very important purpose which was not reduced by the fact that Mr Kracke disputed the necessity of the treatment.  Justice Bell recognised that there may be cases where a safeguard, such as independent review, is indispensable to the proportionality of a limitation; however this was not one of them.  The system contained a range of safeguards of which reviews, though important, were only one part.

Because the limit was a justifiable one, Justice Bell did not need to consider reinterpretation.


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

Lisa Mortimer is a lawyer with Allens Arthur Robinson and a member of the legal team which acted for the Human Rights Law Resource Centre, as amicus, on a pro bono basis