Appeals can be made to the MHRB at any time after a person becomes an involuntary or security patient. Appeals can also be made against transfers and RCTOs. For further discussion of RCTOs, see: Chapter 3*1 Disability and Criminal Justice.

The appeal may be made by the patient or any other person with a genuine concern for the patient. Approved mental health services keep MHRB appeal forms, and involuntary patients wanting to appeal should ask a nurse or doctor for a form.

The patient can also appeal by writing to the Chief Psychiatrist of the Department of Health, the service's authorised psychiatrist, a Community Visitor, the Ombudsman, the Executive Officer of the MHRB, or the Health Services Commissioner (see: "Contacts", at end of chapter 16*1 Disability Overview).

The MHRB must hear the appeal without delay. In practice, how soon an appeal is held depends on where the patient lives. Most Area Mental Health services conduct hearings at least fortnightly, but in remote rural areas hearings may only be once every four weeks.

The MHRB is also obliged to review the orders made for involuntary patients, security patients, and their treatment plans. The initial review must take place within eight weeks of the order and then every 12 months (s.30 MHA).

If a patient has not been reviewed within the statutory time limits, their rights under the Charter to a fair hearing may have been breached and they may obtain a declaration to that effect (see: the Kracke case, above). Further legal advice should be sought.

In view of the length of time before a review is heard, patients should file an appeal if they want their matter heard earlier than the eight-week review.

Appeals to and initial reviews by the MHRB are heard before a lawyer, a psychiatrist and a community representative. Annual reviews can be heard either before one member or three members, at the discretion of the MHRB.

When reviewing involuntary patients on either an ITO or a CTO (see: "Involuntary treatment order (ITO)" and "Community treatment order (CTO)", above), the MHRB must consider whether the five criteria in section 8(1) of the MHA are met. If one of the criteria is not met, the MHRB must discharge the person as an involuntary patient. If the MHRB confirms the ITO it can order the person to be placed on a CTO within a reasonable time (s.36(4)). The authorised psychiatrist can seek a reconsideration of this order.

If, when reviewing the CTO, the Board is satisfied that the criteria in section 8(1) apply, it may:

The MHRB must review each treatment plan to determine whether section 19A has been complied with and that the treatment plan can be implemented. In addition, the MHRB can order the authorised psychiatrist to revise the treatment plan.

A person can, and where possible should, attend their MHRB hearing. The person may be represented by a lawyer (or any person they choose) (see ‘Contacts’ below for Victoria Legal Aid, the Mental Health Legal Centre or the Federation of Community Legal Centres)The patient or nominated representative is entitled to inspect the patient's file prior to the hearing (however, see: "Patient files", below). A number of people, including the authorised psychiatrist and case manager, are given notice of the hearing and may also appear (ss.26 & 32).

It should be noted that an adjournment can be sought, for example to arrange legal representation or to prepare, at the discretion of the MHRB.

A patient may request a written statement of reasons for the decision of the MHRB. The request must be in writing, and must be made within 28 days of the decision. If a patient disagrees with the MHRB's decision they can appeal to the Victorian Civil and Administrative Tribunal (VCAT) within 28 days of the decision or the receipt of the statement of reasons, whichever is the later. As the VCAT hearing is more formal, it is advisable to consult a lawyer before proceeding with such an appeal.

Reviews can also be sought on a question of law, including questions of law involving the application or interpretation of the Charter. For the applicable time limits, see: Chapter 21*2 Judicial Review; but also see: the Kracke case, in "Charter of Human Rights and Responsibilities", above.)

A patient can also lodge a further appeal to the MHRB. No time limits apply to this appeal.