Case 23: Mental health treatment orders must be reviewed within a reasonable time

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Gary Kracke had a mental illness. He challenged an order requiring him to have mental health treatment. The time periods for reviewing his treatment under the relevant mental health legislation had not been complied with, mainly because of administrative failures. Mr Kracke argued that the failure to comply with the treatment reviews on time meant that the compulsory treatment orders were invalid. The Victorian Civil and Administrative Tribunal decided that the treatment orders were not made invalid by the failure to review them. The Tribunal decided that the treatment was a reasonable restriction on Mr Kracke’s Charter rights, including his right not to be subject to medical treatment without his full, free and informed consent. This was because the compulsory treatment regime includes safeguards aimed at ensuring that limitations on Charter rights are reasonable and proportionate. However, the Tribunal declared that the failure to review the treatment orders within a reasonable time breached Mr Kracke’s right to a fair hearing. This led to better processes to ensure that treatment orders were reviewed in a timely way. The mental health legislation at the time has now been replaced and the new mental health legislation has clear expiry dates for orders for compulsory treatment to better protect human rights.

Source: Kracke v Mental Health Review Board [2009] VCAT 646. See also our case summary here: https://
www.hrlc.org.au/human-rights-case-summaries/kracke-v-mental-health-review-board-2009-vcat-646-23-april-2009