Kracke v. Mental Health Review Board & Anor (No. 2) (General)

[2009] VCAT 1548
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The petitioner, Kracke, was mentally ill and was being subjected to medical treatment without his consent. He was required to take drugs with adverse side effects and had been trying unsuccessfully to convince the medical authorities to let him stop taking them.

The drugs were being administered under treatment orders issued pursuant to the Mental Health Act 1986 (“Act”), which authorized the treatment of mentally ill patients without their consent. Under the Act, involuntary treatment orders had to be reviewed by the Mental Health Review Board quickly and then periodically no less than every 12 months from the initial review. Community treatment orders had to be reviewed within eight weeks of any extension.

The board did not conduct these reviews on time, and the Act was silent on the consequences of the board’s failure to do so. Mr. Kracke’s involuntary treatment order went for over two years without being reviewed. His second extended community treatment order went for over one year before it was reviewed, and then only after it was replaced by a third extension that was also reviewed late.

Mr Kracke claimed that the delay in reviewing his case violated his right to a fair hearing under section 24(1) of the Charter of Human Rights and Responsibilities Act 2006 (“Charter”), his right not to be subject to torture or cruel, inhuman or degrading treatment under section 10 of the Charter, his right to freedom of movement under section 12 of the Charter, his right to privacy under section 13 of the Charter, and his right to personal liberty under section 21(1) of the Charter.

The Court held that the Mental Health Review Board had breached Kracke’s human right to a fair hearing under section 24(1) of the Charter by failing to conduct the reviews of his involuntary and community treatment orders under section 30(3) and (4) of the Mental Health Act within a reasonable time.

However, the Court further held that the board's failure to review the orders did not render them invalid because the purpose of the Act was to protect mentally disabled persons, and Kracke was in need of protection. The Court reasoned that the limitations on Kracke’s human rights imposed by the operation of the provisions of the Mental Health Act for making, maintaining and reviewing involuntary and community treatment orders were made under law, reasonable and demonstrably justified in a free and democratic society based on human dignity, equality and freedom.

"I take fully into account that, when conducting reviews, the board is bound by the rules of natural justice.[640] It has wide procedural powers,[641] including a power of adjournment if the need arises.[642] The patient has a right to appear at hearings.[643] If a patient declines to do so, the board must be satisfied it is of their own free will.[644] The board may order a patient not to appear at a hearing only if it would be detrimental to their health.[645] Patients have document-inspection rights.[646] A patient is a party to reviews.[647] These and other provisions of the Mental Health Act governing review and appeal proceedings show the legislation expects patients to be part of the hearing process. This is consistent with the respect for personal autonomy, individual integrity and human dignity that should be given to patients. Unless there are reasons to think otherwise, it must be assumed that patients have the capacity to represent their own interests, which should be respected and taken into account. Such is the policy the legislation, which respects the rights of people with mental illness[648] and interferes with their personal decision-making as little as possible.[649]" Pages 98-99.

"'Personal autonomy is a value that informs much of the common law.'[702] An example is that, when the common law is considering the duty of a doctor to warn a patient about the possible adverse effects of medical treatment, the starting point is 'the paramount consideration that a person is entitled to make his own decisions about his life'.[703] That should be the starting point under s 10(c) of the Charter. Forcing a person of full mental capacity to have unwanted medical treatment is a serious affront to their personal dignity and autonomy in itself.[704] The fact the treatment may be medically warranted is not at this stage the point. Remember, we are dealing here with people who, though mentally ill, still have full legal capacity. The right to refuse unwanted treatment respects the person’s freedom to choose what should happen to them, which is an aspect of their individual personality, dignity and autonomy. The right is especially important in the context of treating someone for mental illness. People can be extremely sensitive about taking the powerful drugs that are often prescribed. However medically necessary they may be, the drugs can cause alterations to mood, behaviour and body weight, as well as personal appearance, which can be very distressing. As the Commission has submitted, such drugs can affect the very 'reality' in which a person lives. Section 10(c) of the Charter recognises the importance of this right to refuse, because it respects the personal dignity and autonomy of people with mental illness." Pages 106-107.

"It is not consistent with the purposes of the Mental Health Act for the involuntary and community treatment orders to be rendered invalid by the failure of the board to conduct the reviews, late or at all. The review time limits do not operate like a dead-man’s handle which stops the treatment as it would a train. The human rights recognised in the ICCPR, the CRPD and the MI principles assist Mr Kracke’s submissions only to a certain degree. None of the rights expressly require a review of community treatment orders. The MI principles require a review of involuntary treatment orders. The need for safeguards is implicitly recognised in all of the instruments. But none deal with the consequence of one failing. None say, if one safeguard fails as here, the treatment to the patient, which has been judged to be medically necessary, and which would otherwise be lawfully given, must stop." Page 133.

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