Reviews and Appeals under the Mental Health Act
Throughout the different stages of the compulsory assessment and treatment process you have opportunities to challenge decisions made about you.
- Review by a judge during assessment periods – while you’re being assessed, you can ask a Family Court Judge to review the decision of the mental health staff that you have a mental disorder.
- Family court hearing – if after you’re assessed, the doctor in charge applies to the Family Court for a compulsory treatment order, you can go to the hearing and oppose the application.
- Applying to Review Tribunal after clinical review – the doctor in charge must review your compulsory treatment order periodically (a clinical review). If the doctor decides you should stay under compulsory status, you can apply to the Review Tribunal for it to review the decision.
- High Court inquiry for inpatients – if you’re in hospital under an inpatient order, you or any other person can apply to the High Court for a judicial inquiry into your case.
- Habeas corpus writ – if you’re in hospital under an inpatient order, you can also challenge the decision to hold you by applying to the High Court for a writ of habeas corpus. For information about this, talk to a lawyer.
- Complaining about a breach of your rights – If you think any of the patient rights in the Mental Health Act have been breached in your case, you can complain to a district inspector. If you’re not happy with the outcome of the District Inspector’s investigation, you can go to the Review Tribunal.
A number of these review and appeal options are set out in further detail below.
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Family Court Reviews during Assessment
At any time during the first or second assessment period you can apply to have a family court judge review the mental health team’s assessment of you.
The District Inspector will talk to you at the end of the first assessment period, if they haven’t already done so, to make sure you’re aware of your right to ask the Family Court for a review. District inspectors can themselves ask the Court to carry out a review if they think you shouldn’t be under compulsory assessment and neither you nor any of the other eligible people want a review.
Who can apply for a family court review?
You can apply for a review for yourself, or any of the following people can apply for a review on your behalf:
How will the Judge carry out the review?
The Judge will visit you at the place where you’re being assessed or at the hospital nearest to where you live. The Judge will ask you about your mental health and whether you think you need treatment.
The Judge will also talk to the doctor in charge of your case and at least one other health professional involved with your care. The Judge may also consult with other people if he or she thinks this will be helpful.
What happens after the review?
If the Judge is satisfied that you should be released from compulsory status, the assessment process ends and you’re free to go. This could be because the Judge decides that you don’t have a mental disorder, or because the Judge is confident that you will continue treatment voluntarily.
If the Judge thinks you shouldn’t be released, the assessment and treatment process will continue.
Can I apply for a review more than once?
You can apply, but the Judge will consider whether there’s any evidence that your condition has changed before carrying out a second review.
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Applying to the Review Tribunal after a Clinical Review
What is the Review Tribunal?
The Review Tribunal is a special court with two main functions under the Mental Health Act.
- It can review decisions made by the doctor in charge to continue your compulsory treatment order. This process is explained in this section.
- The Tribunal can also investigate complaints about a breach of your rights under the Mental Health Act, if you’re unhappy with the outcome of a district inspector’s investigation.
There are three people on the Review Tribunal – a lawyer, a psychiatrist and a community member. If you’re under 17, then the psychiatrist should if possible be one who specialises in working with children and young people.
What happens after a clinical review?
Your doctor must examine you three months after a compulsory treatment order begins, and then every six months, to see if you need to stay under compulsory treatment. These are called clinical reviews.
If the doctor decides compulsory treatment should continue, a district inspector will contact you about your right to apply to the Review Tribunal and how to do this.
Who can apply to the Tribunal for a review of my case?
Any of the following people can apply to the Review Tribunal after a clinical review:
If the District Inspector thinks there should be a review but no-one else wants to apply, the Inspector will report this to the Review Tribunal, and they can review your case anyway.
Tribunal can refuse to review your status in some cases
The Review Tribunal can refuse to consider an application for a review if:
- it has reviewed your condition within the last three months and there’s no reason to believe your condition has changed, or
- the application was made by one of your friends or relatives and the Tribunal thinks it wasn’t made in your best interests.
How will the Tribunal deal with the application for review?
The Review Tribunal will consider the application as soon as possible and no later than 21 days after it’s made, although it can extend this by another seven days.
The Review Tribunal will hold a hearing unless no-one wants a hearing. You can attend and can take a lawyer and support person. If you can’t afford a lawyer, you may qualify for legal aid: for more information see Info sheet Legal Aid.
The Review Tribunal will review all the information about your case, and can ask for an independent report on your condition from a psychiatrist who hasn’t been involved with your case so far.
The Review Tribunal must decide whether you’re fit to be released from compulsory status. You may be fit to be released either because you don’t have a mental disorder, or because you’ve genuinely agreed to continue treatment voluntarily.
What happens after the Review Tribunal makes a decision?
If the Tribunal decides you’re fit to be released from compulsory status, the compulsory treatment order ends immediately and you’re free to go and don’t have to receive any more treatment.
If the Tribunal decides you’re not fit to be released, you’ll be sent a certificate of tribunal review explaining the decision and what your legal rights are. A copy will also be sent to:
Can I appeal the Tribunal’s decision?
Yes, you can appeal it to the District Court. Your main caregiver, your GP or your welfare guardian, if you have one, also have the right to appeal.
After you’ve been sent the certificate of tribunal review, the District Inspector will talk to you about whether you want to appeal. If the District Inspector thinks there should be an appeal, the Inspector will do what he or she thinks necessary to encourage and assist you or your main caregiver, GP or welfare guardian to appeal. If no-one wants to appeal, the Inspector can report this to the District Court. The District Court can then review your condition as if an appeal had been made.
Any appeal must be made within one month after the Tribunal’s decision.
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Judicial Inquiry by the High Court
High Court can inquire into inpatient’s status
If you’re in hospital under an inpatient compulsory treatment order, you or any other person can apply to the High Court for it to carry out a judicial inquiry into your case. These are not common.
If someone applies for an inquiry, a High Court Judge can arrange for a district inspector to investigate your case. The Judge can order you to be discharged if he or she finds that you’re being held in hospital illegally or that you’re fit to be released from compulsory status.
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(Updated: February 2012)