APPEALS
Which decisions can be appealed?
Some decisions made by the Tribunal may be appealed, these include:
- a review decision;
- a decision of the Mental Health Review Tribunal on a treatment application;
- a decision of the Mental Health Review Tribunal on an application for approval that a patient move out of Queensland.
Who hears the appeal?
The decisions listed above can be appealed to the Mental Health Court. This means that a person can argue before the court why the decision made was incorrect and should be changed.
What is the Mental Health Court?
The Mental Health Court consists of one Supreme Court Judge. The court is advised by two assisting psychiatrists who advise the presiding judge on the meaning and significance of clinical evidence and issues relating to the treatment and detention needs of people under the Mental Health Act (2000).
Who can appeal to the Mental Health Court?
Only certain persons have a right to appeal MHRT decisions, they include:
- a party to the proceedings for the decision;
- a person on behalf of the patient for whom the decision is made (eg their lawyer);
- the Director of Mental Health in most cases
What is the first step after the MHRT hearing?
If a patient is not satisfied with a decision made by the Tribunal about their matter, they can request the reasons for the decision from the Tribunal. The Tribunal will prepare a written report called a Statement of Reasons and provide it to the patient.
If the patient having carefully read the Statement of Reasons still believes there were factors not adequately taken into consideration or that the Tribunal was wrong in its application of the law, the patient can start the appeal process.
Getting a Mental Health Court hearing date
The person appealing the decision must fill out a Notice of Appeal MHRT (form 4) and file it at the Registry. This must be done within 28 days after the decision is made by the Tribunal so it is important to keep this deadline in mind.
When filing an appeal, a request for the effects of the original decision to be placed ‘on hold’ (stay of decision) may be made whilst the appeal is heard and finalised in matters of urgency. The Mental Health Court may hear the stay application first, decide whether to grant the stay of decision and then hear the full argument at a later date. If the stay is not granted the decision of the Tribunal will continue to take effect until the court makes a decision.
Otherwise in non-urgent matters, the court will give the appeal a hearing date in the future which gives all the parties involved a chance to prepare.
The Registrar will then let the relevant parties know about the appeal by sending a copy of the Notice of Appeal MHRT out. The relevant parties usually include:
- Mental Health Review Tribunal
- Director of Mental Health
- Any other parties to the appeal (eg Attorney-General for Forensic Orders)
- Anyone else to whom notice of the Mental Health Review Tribunal’s hearing for the review or application was given
- The administrator of the authorised mental health service
Preparing for hearing
Once a date is set, the person appealing the decision must prepare their argument as to why the decision was wrong. If you are a patient appealing, your lawyer will help you prepare.
The Mental Health Court may order the patient to undergo a psychiatric examination by a court-nominated psychiatrist or health practitioner. The nominated practitioner will provide a written report to the court.
What happens at the appeal hearing?
On the hearing date, the Mental Health Court will look at all the material that was before the Tribunal at the time of the review and any new material which may be relevant. The court will hear submissions from the relevant parties. If you are a patient appealing your own matter, your lawyer will make submissions on your behalf and you will not need to address the court yourself.
A support person may attend to help the patient express their views, wishes and interests. This person is not a party to the proceeding and may be the patient’s allied person who advocates on their behalf or some other person granted leave to attend by the court.
The court will consider all of the evidence before it and then decide whether the Tribunal’s decision was correct, incorrect or in some circumstances partially correct (that there needs to be some alterations made to the conditions of the limited community treatment). The Mental Health Court’s decision is final and there is no further avenue of appeal.
Appealing to the Mental Health Court or having your matter appealed by one of the other parties (eg Director of Mental Health or the Attorney-General) is a process which a patient should seek legal advice about from a solicitor. If a patient does not have the means to engage private legal representation, they may be eligible for legal aid through Legal Aid Queensland for assistance with this process.
For more information please contact:
