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 Detention and Treatment Orders:
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 and level 2 detention and treatment orders and level 1 community treatment orders. These orders can be appealed to the Guardianship Board of South Australia.
The Guardianship Board also makes and reviews level 3 detention treatment orders and level 2 community treatment orders. Decisions of the Guardianship Board can be appealed to the District Court.
Who can appeal?
The following persons can lodge appeals:
- the patient;
- the Public Advocate;
- the patient’s guardian or medical agent;
- a relative, carer or friend; or
- any other person who can satisfy the Guardianship Board or District Court that he or she
- has a proper interest in the matter.
What is the appeal process?
Appeal forms are available at all treatment centres/facilities and from the Guardianship Board or the District Court. Documentation about the decisions/orders are prepared by whoever made the decision and made available to the Board or District Court before the full hearing. Verbal submissions will also be heard on the day of appeal.
Appeals will be heard by the Guardianship Board or the District Court as soon as is practicable. Hearings occur at treatment centres, meeting rooms at the Guardianship Board or court room at the District Court.
Usually the order under appeal remains in force until a decision of the appellate body is announced. This means that the person must comply with the order until a decision of the Board or the Court is announced. However, upon application, the Guardianship Board or the District Court can choose to direct that the order not be used to enforce treatment until a decision on the appeal is reached. Appeals can be withdrawn by the applicant at any time during the process. A written decision will be issued after the appeal is heard.
Arguing an appeal:
The person appealing usually claims that their circumstances do not meet the requirements for involuntary treatment. The law limits the use of involuntary detention and 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
Some appeals may be about the fairness or adequacy of the process used in reaching the decision (called procedural fairness). In the case of appeals against Board decisions, an appellant might argue that all of the conditions of the Act were met but that the Board made the wrong decision by not making an order.
What other decisions can be appealed under the Mental Health Act 2009 (SA)?
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 the Guardianship Board and the person cannot be transferred until the period has finished or the outcome is known.
Prescribed treatment under the Act refers to electro convulsive therapy and certain neurosurgery. There are appeal 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 appeal. The Office of the Public Advocate maintains a list of solicitors who will undertake this work at the scheduled fee, and this list is used by the Guardianship Board and the District Court. The person can choose their own lawyer but would be responsible for any additional costs charged above the scheduled fee.
Other parties to an appeal will need to make their own arrangements if they want legal representation.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.