An appeal under s 163 of the Mental Health Act 2007 (NSW) is by way of a new hearing pursuant to s 164(2). The Court must conduct a hearing de novo and make its own determination as to whether the affected person should be subject to a community treatment order, rather than reviewing whether the Tribunal's decision was correct.
An appeal under s 163 of the Mental Health Act 2007 (NSW) requires the Supreme Court to conduct a hearing de novo and make its own findings on each statutory precondition in s 53, rather than reviewing whether the Tribunal's decision was correct. The judge must make express findings addressing each element of s 53(3) and s 53(5), including the treatment plan (s 53(2)(a)) and the duration of the order (s 53(7)). Merely accepting a medical witness's evidence without mapping it to the statutory criteria is insufficient. The question of whether the Court has jurisdiction to hear appeals from 'spent' mental health orders was left open.
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