Kracke v. Mental Health Review Board.

• Author: Tully, Stephen
• Position: Involuntary medical treatment of mentally ill patient

Introduction

The task of interpreting legislation compatibly with human rights standards can prove challenging. The familiar methods of statutory interpretation appear at odds with the ethereal nature of human rights. A recent decision from the Victorian Civil and Administrative Tribunal (the Tribunal), although not the first decision to consider the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter), is noteworthy as the most significant to date on suggesting one possible approach.

1. The decision in Kracke v Mental Health Review Board

The applicant was a mentally ill patient being administered drugs without his consent. He sought to establish that orders made by the Mental Health Review Board (the Board), under which he was given involuntary medical treatment pursuant to the Mental Health Act 1986 (Vic) (the Act), were invalid as violating his human rights. (1) The Act authorises involuntary treatment for individuals in detention and within the community. (2) Treatment orders are subject to several statutory safeguards, including mandatory requirements for the Board to review any orders within specified timeframes. (3) However, the Board had failed to do so: Mr Kracke's involuntary treatment order was more than 12 months overdue and his community treatment order should have been reviewed at least twice. Although the applicant's requested adjournments had contributed to delay, the Board had lost track of his case due to administrative oversights. The Act was silent as to the consequences. Mr Kracke submitted that he could not be compelled by involuntary treatment orders when safeguards such as strict adherence to review periods had not been properly applied. Noting the importance of respecting Mr Kracke's human rights, the Board nonetheless affirmed the orders and the applicant sought review.

The Tribunal found that the Board had breached Mr Kracke's right to a fair hearing under section 24(1) of the Charter by failing to conduct mandatory reviews of his involuntary and community treatment orders, as required under section 30(3) and (4) of the Act, within a reasonable time. (4)

The Tribunal considered that the purpose of conducting reviews within the legislatively-mandated timeframes was to safeguard the interests of vulnerable persons. However, the review time limits 'do not operate like a dead-man's handle which stops the treatment as it would a train'. (5) Similarly, '[a] system compatible with human rights because it contains many such safeguards is not necessarily made incompatible with human rights because of the failure of one'. (6) The treatment orders remained valid in view of Mr Kracke's medical needs, human rights standards, (7) precedent (8) and the Act's purpose: to protect the health of mentally ill patients. (9) To invalidate the orders because the reviews were not conducted within time, even though breaching his human rights, would be disproportionate. (10)

On the appropriate remedy, the Charter 'is not a toothless tiger'. (11) The Tribunal found that, in the social interest, Mr Kracke was entitled to a formal declaration. (12) This remedy was considered consistent with discretionary principles, (13) vindicated the applicant's...