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 that require persons with serious mental illness to undergo assessment and treatment even if it is against their wishes. 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)]. The review is conducted under the review jurisdiction of the South Australian Civil and Administrative Tribunal [see s 34 of the South Australian Civil and Administrative Tribunal Act 2013 (SA)].
Level 1 community treatment orders
- The original decision is made by a medical practitioner or authorised mental health professional.
- The patient must be examined by a psychiatrist or authorised medical practitioner within 24 hours of the order being made [s 10(5)]. The examination must be conducted by a different psychiatrist or authorised medical practitioner from whomever made the order. If not practicable within this time period an examination must be made as soon as practicable.
- The examining psychiatrist or authorised medical practitioner may confirm the order if satisfied that grounds for it exist and must revoke the order if this is not the case.
- The original decision can be reviewed by SACAT on application [s 81(1)]. There is no further review of SACAT's decision in its review jurisdiction.
Level 1 inpatient treatment orders
- The original decision is made by a medical practitioner or authorised mental health professional.
- The patient must be examined by a psychiatrist or authorised medical practitioner within 24 hours of the order being made [s 21(5)]. The examination must be conducted by a different psychiatrist or authorised medical practitioner from whomever made the order. If not practicable within this time period an examination must be made as soon as practicable.
- The examining psychiatrist or authorised medical practitioner may confirm the order if satisfied that grounds for it exist and must revoke the order if this is not the case.
- The original decision can be reviewed by SACAT on application [s 81(1)]. There is no further review of SACAT's decision in its review jurisdiction.
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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[s 79(1)(c)], 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)]. SACAT's decision is then subject to internal review [ s 83A]. An application for internal review must be made within one month of the original decision.
- The decision made by SACAT at the internal review can then be appealed to the Supreme Court. An application to the Supreme Court must generally be made within 14 days of SACAT's review decision [s 83A(g)].
Level 2 inpatient treatment orders
- The original decision is made by a psychiatrist or authorised medical practitioner.
- The original decision can be reviewed by SACAT on application [s 81(1)]. There is no further review of SACAT's decision in its review jurisdiction.
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If a level 2 treatment order is extended [s 79(1)(ca)], then SACAT must review the level 2 inpatient treatment order. SACAT's decision at this stage is deemed to be within its original jurisdiction [s 79(5)]. SACAT's decision is then subject to internal review [s 83A]. An application for internal review must be made within one month of the original decision.
- The decision made by SACAT at the internal review can then be appealed to the Supreme Court. An application to the Supreme Court must generally be made within 14 days of SACAT's review decision [s 83A(g)].
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
- The original decision is made by SACAT [s 16(3)].
- SACAT's decision is subject, on application, to internal review [s 83A]. An application for internal review must be made within one month of the original decision.
- The decision made by SACAT at the internal review can be appealed to the Supreme Court. An application to the Supreme Court must generally be made within 14 days of SACAT's review decision [s 83A(g)].
Level 3 inpatient treatment orders
- The original decision is made by SACAT [s 29(3)].
- SACAT's decision is subject, on application, to internal review [s 83A]. An application for internal review must be made within one month of the original decision.
- The decision made by SACAT at the internal review can be appealed to the Supreme Court. An application to the Supreme Court must generally be made within 14 days of SACAT's review decision [s 83A(g)].
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
- The original decision is made by SACAT [s 16(3)].
- SACAT's decision at steps 1 is subject, on application, to internal review [s 83A]. An application for internal review must be made within one month of the original decision.
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If 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, SACAT must conduct a review of the order 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)].
- SACAT's decision at steps 3 is subject, on application, to internal review [s 83A]. An application for internal review must be made within one month of the original decision.
- The decision made by SACAT at the internal review can be appealed to the Supreme Court. An application to the Supreme Court must generally be made within 14 days of SACAT's review decision [s 83A(g)].
Level 3 inpatient treatment orders in relation to a child
- The original decision is made by SACAT [s 29(3)].
- SACAT's decision at step 1 is subject, on application, to internal review [s 83A]. An application for internal review must be made within one month of the original decision.
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If a level 3 inpatient 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, SACAT must conduct a review of the order 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)].
- SACAT's decision at step 3 is also subject, on application, to internal review [s 83A]. An application for internal review must be made within one month of the original decision.
- The decision made by SACAT at the internal review can be appealed to the Supreme Court. An application to the Supreme Court must generally be made within 14 days of SACAT's review decision [s 83A(g)].
See also: Community treatment orders and Inpatient treatment orders
Who can apply to have a decision reviewed?
The following persons can apply for review [s 81(1)]:
- the patient
- the Public Advocate
- the patient’s guardian or medical agent
- a relative, carer or friend
- any other person who can satisfy SACAT that they have a proper interest in the matter.
In relation to applications for internal review, the following persons can apply [s 83A(b)]:
- the applicant in the proceedings where SACAT exercised its original jurisdiction
- a person to whom the proceedings relate (in other words, the patient, if they were not the applicant originally)
- the Public Advocate
- any person who presented evidence or material before, or made submissions to SACAT in the proceedings
- any other person who can satisfy SACAT that they have 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
- there is a less restrictive treatment approach that 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 theMental 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) and South Australian Civil and Administrative Tribunal Act 2013 (SA) s 34], therefore no further appeal lies to the Supreme Court [s 83A(h)].
A person cannot be transferred until the period allowed for appeal has finished or the outcome is known [s 70(6)]. As this can cause unnecessary delay where there is no intention to apply for a review, s 70(6) does not apply if written consent to the transfer has been given by the patient (if aged 16 years or over) or a person listed under s 70(5)(a) i.e. guardian, medical agent, relative, carer or friend nominated by the patient for this purpose. Even if no one has been nominated expressly, consent may be given by a person who appears to have been assuming responsibility for the care of the patient or any guardian, medical agent, relative, carer or friend it is practicable and appropriate to notify [s 70(7)].
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 help with their appeal?
A legal representation scheme is provided free of charge to all persons who are subject to an order under review, excluding automatic initial reviews of short-term treatment orders under s 79 [s 84].
Other parties to an appeal will need to make their own arrangements if they want legal representation.
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