CRPD/C/24/D/36/2016
apply to the Victorian Civil and Administrative Tribunal for a review of a decision of the
Mental Health Tribunal to approve an application for electroconvulsive therapy.
4.5
The State party notes that the author has mental health conditions and a number of
complex health and other needs. At the time of his residence at Eastern Health’s Upton House
mental health facility, he was subject to an inpatient treatment order made by the Mental
Health Tribunal in accordance with the provisions of the Mental Health Act 2014.
4.6
The State party submits that victim status has not been established under the Optional
Protocol in regard to the author. It notes that his father has authorized counsel to bring the
complaint on behalf of his son before the Committee, but that no documents have been
provided to support the assertion that the author’s father is his legal guardian.
4.7
The State party further submits that the author has not demonstrated that he has
exhausted all domestic remedies which are available with respect to his allegations under the
Convention, and that the communication should therefore be found to be inadmissible. It
argues that a number of domestic remedies were available to the author with respect to the
allegations, including seeking redress from the Mental Health Tribunal which is the primary
body responsible for determining whether a person requires compulsory mental health
treatment. The author could have applied to the Mental Health Tribunal for revocation of the
inpatient treatment order or of the order for treatment by electroconvulsive therapy. The State
party notes that no evidence has been provided as to why the author did not do this. If he had
utilized this remedy and been unsatisfied with the outcome, it would have been open to him
to apply to the Victorian Civil and Administrative Tribunal for a merits review of any
decisions made by the Mental Health Tribunal relating to the imposition, revocation or
continuance of the inpatient treatment order or the order for electroconvulsive therapy. There
are no fees to make an application to the Victorian Civil and Administrative Tribunal for
review of a decision made under the Mental Health Act 2014. By applying to the Victorian
Civil and Administrative Tribunal for a merits review, it would have been open to the author
to make submissions relating to the Charter of Human Rights and Responsibilities Act. Under
section 38 of the Charter, it is unlawful for a public authority to act in a way that is
incompatible with a human right, or, in making a decision, to fail to give proper consideration
to a relevant human right. It was also open to the author to appeal a decision of the Victorian
Civil and Administrative Tribunal to the Supreme Court of Victoria on a question of law
under section 148 of the Victorian Civil and Administrative Tribunal Act 1998, or to seek a
Supreme Court injunction or writ of mandamus. Under Victorian legislation, it was also open
to him to lodge a complaint with the Mental Health Complaints Commissioner. The
Commissioner is an independent, specialist complaints body established under the Mental
Health Act 2014 to provide an accessible and timely complaints mechanism for persons with
mental health conditions. The Commissioner is authorized to accept, assess, manage and
investigate complaints relating to mental health service providers in Victoria. The
Commissioner would have been able to receive and investigate a complaint by the author
relating to his treatment and, if satisfied that the treatment was in contravention of the Mental
Health Act 2014 or Regulations, would have been able to serve a compliance notice on the
mental health service provider. The State party argues that the author has provided no
information as to whether he has made attempts to pursue any of these domestic remedies. It
therefore submits that he has failed to exhaust all available domestic remedies in respect of
his claims.
4.8
On 10 August 2016, the State party submitted further observations on the complaint,
and requested the Committee to withdraw its request for interim measures as the author was
no longer residing in the State of Victoria or undergoing treatment there.
Author’s comments on the State party’s observations on admissibility
5.1
On 14 August 2016, the author provided his comments on the State party’s
observations. He maintains that the communication is admissible.
5.2
The author notes the State party’s claim that he has not substantiated his assertion that
he authorized his father to submit the communication on his behalf to the Committee. He
refers to a statement that he signed, which is dated 31 July 2016, in which he confirms that
he has authorized his father and counsel to submit the complaint to the Committee.
4