Appeal lodged by a patient concerning a community treatment order

On 3 December 2015 we reported on a Court of Appeal decision in relation to an appeal lodged by a patient concerning a community treatment order (CTO). The Court of Appeal remitted the matter back to the Equity Division of the Supreme Court of NSW on the basis that when the matter was heard at first instance the Tribunal’s decision was reviewed by the Court. The Court of Appeal found that the relevant legislation, the Mental Health Act, in fact required that the Court’s hearing be a rehearing in which the Court was required to consider whether the patient satisfied s53 of the Mental Health Act such that it was appropriate that she be subject to a CTO.

When the matter came before the Court on 16 December 2015 it was noted that the CTO in question had in fact expired on 2 December 2015. As such the Court concluded that to consider the appeal would be futile as the CTO was no longer in place or capable of being in enforced at them time of the appeal. The appeal was therefore dismissed with no order as to costs. Whilst the judgment notes that another LHD had given notice that it proposed to apply to the Mental Health Tribunal for another CTO in respect of Z this application had not been heard at the time that the remitted matter was heard. In any event should Z disagree with any orders relating to that application then it will be necessary to lodge a new appeal with the Court to appeal against the orders made.

Post by Karen Kumar and Cameron Leaver

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