Appeals

An appeal is a challenge to a decision or order. It involves asking a higher body to review a decision or order and decide whether it is correct or should be changed. An appeal can be about a decision to make or not to make an order. The individuals considering the appeal are not involved in the original decision and take a fresh look at it.

Appealing Community Treatment Orders and Inpatient Treatment Orders:

when the original decision is made by a health professional

The Mental Health Act 2009 (SA) allows certain health professionals to make orders which require persons with serious mental illness to undergo assessment and treatment even if they do not want to. These orders are called level 1 community treatment orders and level 1 and level 2 inpatient treatment orders. The possible reviews and appeals are as follows.

A review of a decision made by a health professional may be instituted at any time during the currency of the order [s 81(2)].

level 1 community treatment orders

  1. The original decision is made by a health professional.
  2. The original decision must be reviewed by SACAT. SACAT's decision at this stage is deemed to be within its original jurisdiction - s 15(4).
  3. SACAT's decision is subject, on application, to internal review.
  4. The decision made by SACAT at the internal review can be appealed to the Supreme Court.

level 1 inpatient treatment orders

  1. The original decision is made by a health professional.
  2. If the order has been made within 7 days after the expiry or revocation of a previous inpatient treatment order applying to the same person, then SACAT must review the level 1 inpatient treatment order. SACAT's decision at this stage is deemed to be within its original jurisdiction - s 79(5).
  3. If the original decision is not subject to this required review, the original decision can be reviewed by SACAT on application. SACAT's decision at this stage comes within its original jurisdiction s 81(1a).
  4. SACAT's decision at steps 2 or 3 is subject, on application, to internal review.
  5. The decision made by SACAT at the internal review can be appealed to the Supreme Court.

level 2 inpatient treatment orders

  1. The original decision is made by a health professional.
  2. The original decision can be reviewed by SACAT on application. SACAT's decision at this stage is deemed to be within its original jurisdiction - s 81(1a).
  3. SACAT's decision is subject, on application, to internal review.
  4. The decision made by SACAT at the internal review can be appealed to the Supreme Court.

when the original decision is made by SACAT and is in relation to an adult

SACAT makes level 2 community treatment orders and level 3 inpatient treatment orders. The possible reviews and appeals are as follows:

level 2 community treatment orders

  1. The original decision is made by SACAT.
  2. SACAT's decision is subject, on application, to internal review.
  3. The decision made by SACAT at the internal review can be appealed to the Supreme Court.

level 3 inpatient treatment orders

  1. The original decision is made by SACAT.
  2. SACAT's decision is subject, on application, to internal review.
  3. The decision made by SACAT at the internal review can be appealed to the Supreme Court.

when the original decision is made by SACAT and is in relation to a child

SACAT makes level 2 community treatment orders and level 3 inpatient treatment orders. The possible reviews and appeals are as follows:

level 2 community treatment orders in relation to a child

  1. The original decision is made by SACAT.
  2. A review of a level 2 community treatment order that has been made in respect of a child and continues to apply to the child 3 months after the making of the order must be conducted by SACAT as soon as practicable after the end of the period of 3 months [s 79(1)(b)]. Such a review is taken to come within the Tribunal's original jurisdiction [s 79(5)].
  3. SACAT's decision at steps 1 and 2 is subject, on application, to internal review.
  4. The decision made by SACAT at the internal review can be appealed to the Supreme Court.

level 3 inpatient treatment orders in relation to a child

  1. The original decision is made by SACAT.
  2. A review of a level 3 community treatment order that has been made in respect of a child and continues to apply to the child 3 months after the making of the order must be conducted by SACAT as soon as practicable after the end of the period of 3 months [s 79(1)(d)]. Such a review is taken to come within the Tribunal's original jurisdiction [s 79(5)].
  3. SACAT's decision is subject, on application, to internal review.
  4. The decision made by SACAT at the internal review can be appealed to the Supreme Court.

See also: Community treatment orders and Inpatient treatment orders

Who can apply to have a decision reviewed?

The following persons can apply for review:

  • the patient;
  • the Public Advocate;
  • the patient’s guardian or medical agent;
  • a relative, carer or friend; or
  • any other person who can satisfy SACAT that he or she has a proper interest in the matter.

What is the review process?

Review forms are available at all treatment centres/facilities, or review applications may be made online via the SACAT website. Documentation about the decisions/orders are prepared by whoever made the decision and made available to SACAT before the hearing. Verbal submissions will also be heard on the day of review.

Usually the order under review remains in force until a decision of SACAT is announced. This means that the person must comply with the order until a decision of SACAT is announced. However, upon application, SACAT or the Supreme Court can choose to direct that the order not be used to enforce treatment until a decision on the review is reached.  Reviews can be withdrawn by the applicant at any time during the process.

Arguing a review

The person seeking a review usually claims that their circumstances do not meet the requirements for involuntary treatment. The law limits the use of involuntary inpatient treatment or community treatment orders to certain conditions. An appeal argument may include one or more of the following:-

  • the person does not have a mental illness;
  • the person is willing to receive voluntary treatment;
  • the person does not require treatment for their own protection or the protection of others and/or will not suffer undue harm or deterioration due to lack of treatment;
  • there is no appropriate treatment facility or service available; or
  • there is a less restrictive treatment approach which can be applied to the person’s circumstances.

Some reviews may be about the fairness or adequacy of the process used in reaching the decision (called procedural fairness).

What other decisions can be appealed under the Mental Health Act 2009 (SA)?

Transport interstate:

The Chief Psychiatrist can approve that a detained person subject to an interstate order be transported to another state or territory. That person has 14 days within which to appeal this decision to SACAT [s 83(2)]. When SACAT is reviewing the decision, it is doing so under its review jurisdiction [s 83(1)], therefore no further appeal lies to the Supreme Court [s 83A(h)]. The person cannot be transferred until the period allowed for appeal has finished or the outcome is known [s 70(6)].

Prescribed treatment:

Prescribed treatment under the Act refers to electro convulsive therapy and certain neurosurgery. There are review rights regarding these decisions.

Can a person have a lawyer to assist with his or her appeal?

A legal representation scheme is provided free of charge to all persons who are subject to an order under review.

Other parties to an appeal will need to make their own arrangements if they want legal representation.

Appeals  :  Last Revised: Fri Apr 24th 2015
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