Human Rights and Review of the Involuntary Status of Patients with a Mental Illness: Kracke after Momcilovic

Arguably, Australia's most significant judicial pronouncement on the human rights of those with mental illnesses was made in 2009 by Justice Bell, the then President of the Victorian Civil and Administrative Tribunal (“VCAT”). The decision is an exhaustive analysis of the application of the Charter of Human Rights and Responsibilities Act 2006 (Vic) to the involuntary status of a person subject to a community treatment order in Victoria. It occurred in the context of delays in the conduct of reviews of the status of a mentally ill person by Victoria's Mental Health Review Board (“the Board”). The outcome of the hearing was a declaration that the Board had breached the person's human rights to a fair hearing, even though the person's involuntary status on a community treatment order was not disturbed by VCAT. Whilst some important aspects of Justice Bell's decision concerning the general methodology to be applied when analysing human rights were overturned in the subsequent Court of Appeal decision of R v Momcilovic 2010] VSCA 50, the latter decision did not concern mental health and so leaves Kracke as the most detailed articulation and analysis of human rights within this difficult sphere.