Last updated 31 January 2018

The Mental Health Act 2016 (Qld) (Mental Health Act) provides for appeals to the:

Appeals to the Mental Health Review Tribunal

Under the Mental Health Act, an appeal can be made to the Mental Health Review Tribunal against a limited number of decisions:

  • a decision the chief psychiatrist may make if the chief psychiatrist considers that there is a serious risk to the life, health or safety of a person or to public safety because of a matter that has arisen in relation to a forensic patient
  • a decision by the chief psychiatrist on an application by a victim (or other person affected by an unlawful act) for an information notice in relation to a patient on a forensic order or treatment support order
  • a decision of the administrator of an authorised mental health service to refuse to allow a person to visit a patient. This is a decision the administrator may make if satisfied that the visit would adversely affect the patient’s treatment and care.

Appeals to the Mental Health Court

The Mental Health Act provides for appeals to the Mental Health Court against decisions of the Mental Health Review Tribunal in a number of different situations. A list of the decisions that can be appealed against and the persons who can appeal is set out in sch 2 to the Mental Health Act.

The appeals most frequently heard by the Mental Health Court are appeals by patients against decisions of the tribunal to confirm forensic orders, treatment support orders or treatment authorities, appeals by patients against approval of electroconvulsive therapy and appeals by the Attorney-General against decisions of the tribunal to revoke forensic orders.

Appeals are started by filing a notice of appeal in the registry of the Mental Health Court (s 541 Mental Health Act). The notice of appeal must be in the approved form and state the grounds of appeal. It is to be filed within 60 days after the appellant receives notice of the decision, but the time may be extended by the Mental Health Court.

The Mental Health Court may also grant a stay of the decision appealed against until the appeal is decided.

An appeal is by way of rehearing. In order to succeed, it is not necessary to show that the Mental Health Review Tribunal made an error. The Mental Health Court may:

  • confirm the decision appealed against
  • set the decision aside and substitute another decision
  • set the decision aside and send the matter back to the tribunal to reconsider it.

A decision of the Mental Health Court on an appeal from the tribunal is final. There is no right of appeal to the Court of Appeal, unless the Mental Health Court’s decision is found to have been affected by what is known as jurisdictional error (s 548 Mental Health Act).

Appeals to the Court of Appeal

The Mental Health Act provides for appeals to the Court of Appeal against decisions made by the Mental Health Court on references in relation to a person charged with a criminal offence. The person who is the subject of the reference has a right of appeal, as does the Attorney-General, the chief psychiatrist and the director of forensic disability (s 549 Mental Health Act).

To succeed on an appeal to the Court of Appeal, it is necessary to show that the Mental Health Court made some error of law or fact, or some error in the exercise of discretion.

The Court of Appeal may:

  • confirm the decision appealed against
  • set the decision aside and substitute another decision
  • set the decision aside and send the matter back to the Mental Health Court to reconsider it.