HUMAN RIGHTS AND MENTAL ILLNESS REPORT OF THE NATIONAL INQUIRY INTO THE HUMAN RIGHTS OF PEOPLE WITH MENTAL ILLNESS Volume 1 HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION Australian Government Publishing Service Canberra 1993 Commonwealth of Australia This work is copyright. Apart from any use as permitted under the Copyright Act 1968, no part may be reproduced by any process without prior written permission from the Human Rights and Equal Opportunity Commission through the Australian Government Publishing Service. Requests and enquiries concerning reproduction should be directed to the Manager, Commonwealth Information Service, Australian Government Publishing Service, GPO Box 84, Canberra, ACT 2601. ISBN No Set: 0 644 32184 9 ISBN No Vol 1: 0 644 32185 7 Printed for AGPS by Aiken Press Pty Ltd Human Rights and Equal Opportunity Commission 16 September 1993 The Hon Michael Lavarch MP Attorney-General Parliament House CANBERRA ACT 2600 Dear Attorney We enclose the report of our National Inquiry into Human Rights and Mental Illness. This Inquiry was conducted pursuant to the powers and responsibilities conferred on the Human Rights and Equal Opportunity Commission under Federal law. Given the numerous and serious breaches of human rights which are identified, we respectfully request that the Government give urgent consideration to the report and to the recommendations we have made. Yours sincerely BRIAN BURDEKIN Federal Human Rights Commissioner DAME MARGARET GUILFOYLE Commissioner DAVID HALL Commissioner PREFACE This report has been made possible by the many thoughtful written and oral submissions received from people affected by mental illness, their carers, members of the public, community organisations, and also Federal, State and Territory governments. The problems which it identifies require responses not only from governments, but from our community and, indeed, each of us as individuals. A major difficulty in compiling this report has been the lack of relevant research in Australia relating to mental illness — including its incidence, effects and treatments available for those affected. We found many dedicated individuals and organisations working with very little information and very few resources — often unaware of developments elsewhere in Australia that could have assisted them. We have therefore attempted, within the limits of our resources, to include material and to structure this report in such a way that it will have some continuing value as a reference for Australians affected by mental illness and those working with them. We wish to place on record our appreciation to staff of the Human Rights and Equal Opportunity Commission for their dedication, professionalism and sheer hard work. Many contributed at different times but we wish to thank particularly Anne Plummer, Rebecca Peters, Rana Flowers, Helen Hurwitz, Kim Ross, Kieren Fitzpatrick, Judy Brookman, Ruth Callaghan, Leanne Craze, David Mason, Susan Coles and Nerida Blair. NATIONAL INQUIRY CONCERNING THE HUMAN RIGHTS OF PEOPLE WITH MENTAL ILLNESS VOLUME 1 PART I: BACKGROUND, DEFINITIONS, AND EXISTING SERVICES Chapter 1 THE INQUIRY PROCESS Background to this Inquiry 3 Procedure of the Inquiry 7 Scope of the Inquiry 11 Outline of the Report 12 Incidence of Mental Illness 13 Conclusion 15 Chapter 2 RELEVANT HUMAN RIGHTS PROVISIONS AND INTERNATIONAL LAW 20 Introduction 20 Human Rights of People with Mental Illness 21 Instruments Incorporated in Federal Legislation 21 Other International Conventions 27 Mental Illness Principles 31 Developing Further International Standards 34 Chapter 3 DEFINITIONS AND CONCEPTIONS OF MENTAL ILLNESS 38 Introduction 38 Changing Views of Mental Illness 38 Legal Definitions of Mental Illness 40 Medical Conceptions of Mental Illness 44 Cross Cultural Conceptions 46 Chapter 4 THE LEGAL FRAMEWORK 50 Commonwealth Legislation 50 New South Wales 61 Victoria 73 Queensland 84 South Australia 94 Western Australia 101 Tasmania 109 Northern Territory 116 Australian Capital Territory 123 Chapter 5 MENTAL HEALTH SERVICES 136 The Government Sector 136 The Private Sector 146 The Non-Government Sector 149 Chapter 6 THE ROLE AND TRAINING OF HEALTH PROFESSIONALS AND OTHERS 171 The Views of Health Professionals 171 Professional Training and Education 184 Chapter 7 DEVELOPMENTS SINCE THE INQUIRY BEGAN 210 Federal 210 New South Wales 213 Victoria 216 Queensland 218 South Australia 219 Western Australia 220 Tasmania 221 Northern Territory 222 Australian Capital Territory 223 Part II: LIVING WITH MENTAL ILLNESS Chapter 8 INPATIENT CARE AND TREATMENT 227 Pre-Admission and Admission 227 Clinical Treatment and General Care 236 Medication 238 Electro Convulsive Therapy (ECT) 249 Relationship Between Psychiatrists and Inpatients 255 Relationship Between Nurses and Inpatients 258 Alternative Therapies 250 Access To Information 263 Privacy 267 Safety and Security 268 Seclusion 269 Assaults and Abuse 271 Activities and Occupational Therapy 274 Environment and Facilities 276 Education in Hospital 280 Discharge Planning 281 Conclusion 287 Chapter 9 COMMUNITY CARE AND TREATMENT 298 Crisis Care 299 Continuity of Care 300 Treatment Follow-Up 308 Alternative Treatments 314 Psychosocial Rehabilitation 315 Health Promotion Activities 323 Financial Issues 325 Conclusion 328 Chapter 10 ACCOMMODATION 337 Introduction 337 Barriers to Appropriate Accommodation 338 Housing Options 344 Supported Accommodation 352 Special Needs Groups 363 Model Services: Supported Accommodation 370 Model Services: Accommodation Support 376 Chapter 11 BOARDING HOUSES 386 Background 386 Prevalence of Mental Illness in Boarding Houses 387 Living Conditions 388 Placement in Boarding Houses 390 Treatment for Mental Illness 391 Boarding House Management 393 Regulation of Boarding Houses 396 Improving Support for Boarding House Residents 398 Conclusion 399 Chapter 12 EMPLOYMENT 404 Background 404 Barriers to Employment 406 Vocational Options 413 Non-Employment Options 422 Research 423 Chapter 13 EDUCATION AND TRAINING 430 Barriers to Education and Training 430 Program Design 435 Chapter 14 DISCRIMINATION: THE PERSONAL EXPERIENCE OF MENTAL ILLNESS 439 What it Feels Like to be Mentally Ill 441 Inequality 445 Marginalisation 446 Discrimination 448 Conclusion 452 Chapter 15 CARERS: THE EXPERIENCE OF FAMILY MEMBERS 455 Introduction 455 Lack of Information 457 Difficulty in Obtaining Treatment for a Relative 458 Legal Procedures 459 Consultation between Family and Professionals 460 Attitudes of Professionals 464 Emotional Impact of Mental Illness upon the Family 468 Family Finances 474 Impact on Women 476 Carers' Need for Practical Support 477 Family Living vs Independent Living 483 Conclusion 484 Chapter 16 CHILDREN OF PARENTS WITH MENTAL ILLNESS 493 Post-Natal Depression and its Effects on Infants 493 Welfare, Care and Custody Issues 494 Effects on Young Children 498 Effects on School-Age and Teenage Children 501 Adults Whose Parents Were Affected by Mental Illness 504 VOLUME 2 PART III: PEOPLE WITH PARTICULAR VULNERABILITIES Chapter 17 ELDERLY PEOPLE 509 Introduction 509 Dementia 509 Depression 511 Treatment of the Elderly Mentally III 511 Residential Treatment 514 Solutions: Special Dementia Care Facilities 521 Community Care 524 Policy Issues Emerging from the Evidence 531 Chapter 18 HOMELESS PEOPLE 548 Definitions 548 Who and How Many Are They? 548 Prevalence of Mental Illness 551 Treatment 553 Why Are They Homeless? 555 Particularly Vulnerable Groups 557 Conditions in Shelters and Refuges 558 Homeless Service Agencies 561 Access to Services 562 Agency Staff 568 Relations Between the Health System and Agencies 569 Poverty and Trustees 574 What the Services Should be Like 576 Chapter 19 WOMEN 585 Diagnosis and Treatment 585 Post-Natal Depression 589 Violence Against Women 592 Shelter 596 The Need For More Research 598 Chapter 20 CHILDREN AND ADOLESCENTS 603 Incidence and Prevalence 603 Definitions and Terminology 605 Assessment and Diagnosis 607 Contributing Factors 609 Child and Adolescent Psychiatric Services 613 Difficulty in Obtaining Treatment 616 Deficits in Service Provision 618 Inappropriate Placement 626 Prevention and Intervention 629 The Juvenile Justice System 634 Youth Suicide 637 Appropriate Responses 643 Conclusion 647 Chapter 21 PEOPLE WITH DUAL AND MULTIPLE DISABILITIES 659 Mental Illness and Intellectual Disability 659 Mental Illness and Substance Abuse 664 Mental Illness and Deafness 668 Mental Illness and HIV / AIDS 671 Head Injury 672 Conclusion 673 Chapter 22 PEOPLE IN RURAL AND ISOLATED AREAS 678 Distribution of Services 678 Strains on Health Professionals 685 Strains on Consumers and Families 686 Pressures on Young People 687 Possible Solutions 687 Chapter 23 ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLE 692 Introduction 692 The Historical Experience 692 Cross Cultural Perspectives on Mental Illness 694 Prevalence of Mental Illness 695 Social Context of Aboriginal Mental Illness 695 Diagnosing Mental Illness 698 Aboriginal People with Special Needs 703 Servicing Rural and Remote Areas 709 The Need for Culturally Appropriate Services 711 The Importance of Self-Determination 716 Chapter 24 PEOPLE FROM NON-ENGLISH SPEAKING BACKGROUNDS 723 The Migration Experience 723 Groups Particularly at Risk 724 Accessing Services 730 Lack of Culturally Appropriate Services 733 What is Required? 741 Chapter 25 FORENSIC PATIENTS AND PRISONERS 752 Definitions 752 Prevalence of Mental Illness Among Prisoners 753 Does Mental Illness Lead to Jail? 756 Does Jail Lead to Mental Illness? 760 Special Needs Groups in Prison 776 Shortage of Staff and Resources 782 Release from Jail 787 Prison vs Hospital 794 Governor's Pleasure Prisoners 797 Conclusion 804 PART IV: OTHER AREAS OF CONCERN Chapter 26 MENTAL HEALTH RESEARCH 821 Introduction 821 Support for Medical Research in Australia 823 Cost of Mental Illness and Funding for Research 824 Commonwealth Funding Sources 827 The NHMRC and Mental Health Research 829 Affirmative Action in Medical Research 830 Some Specific Issues in Mental Health Research 833 Chapter 27 PREVENTION AND EARLY INTERVENTION 843 Community Issues and Prevention in the Mental Health Field 844 Opportunities for Prevention in Specific Contexts 850 Prevention and Serious Mental Illness 856 Schizophrenia 857 Depression and Bipolar Disorder 859 Groups Which Are Particularly Vulnerable 860 Conclusion 865 Chapter 28 ACCOUNTABILITY 870 Introduction 870 Quality Assurance 871 Standards 873 Peer Review 875 Monitoring 875 Accreditation 877 Professional Registration 878 Official Visitors 878 Patient Rights and Patient Advocacy 879 Complaints Mechanisms 880 Conclusion 881 Chapter 29 LEGISLATIVE PROPOSALS 883 Introduction 883 South Australia 883 Western Australia 887 Conclusion 891 PART V: FINDINGS AND RECOMMENDATIONS Chapter 30 LEGISLATION: FINDINGS AND RECOMMENDATIONS 895 State Legislation 896 Statutory Objects and Definitions 896 Voluntary Admission 896 Involuntary Admission 897 Review 898 Procedural Safeguards 899 Treatment 900 Confidentiality 900 Forensic Patients 901 Legislative Controls 901 Guardianship and Administration 902 Anti-Discrimination 903 Inter-State Co-operation 903 Federal Legislation 904 Chapter 31 GENERAL FINDINGS AND RECOMMENDATIONS General Conclusions 908 Mental Health Services (Chapter 5) 909 Health Professionals (Chapter 6) 910 Inpatient Care and Treatment (Chapter 8) 913 Community Care and Treatment (Chapter 9) 916 Accommodation, Boarding Houses and Homelessness (Chapters 10, 11 and 18) 919 Employment (Chapter 12) 921 Education and Training (Chapter 13) 923 Discrimination: The Personal Experience of Mental Illness (Chapter 14) 925 Carers (Chapter 15) 925 Children of Parents with Mental Illness (Chapter 16) 927 Elderly People (Chapter 17) 928 Women (Chapter 19) 930 Children and Adolescents (Chapter 20) 932 People with Dual or Multiple Disabilities (Chapter 21) 935 People in Rural and Isolated Areas (Chapter 22) 936 Aboriginal and Torres Strait Islander People (Chapter 23) 937 People from Non-English Speaking Backgrounds (Chapter 24) 939 Forensic Patients and Prisoners (Chapter 25) 940 Mental Health Research (Chapter 26) 943 Prevention and Early Intervention (Chapter 27) 944 Accountability (Chapter 28) 946 Appendix 1 WITNESSES APPEARING BEFORE THE INQUIRY 948 Appendix 2 WRITTEN SUBMISSIONS 962 Appendix 3 FACILITIES VISITED BY THE INQUIRY 984 Appendix 4 DECLARATION ON THE RIGHTS OF DISABLED PERSONS 986 Appendix 5 PRINCIPLES FOR THE PROTECTION OF PERSONS WITH MENTAL ILLNESS AND FOR THE IMPROVEMENT OF MENTAL HEALTH CARE 989 Appendix 6 GLOSSARY OF ABBREVIATIONS 1006 Part I Background, Definitions and Existing Services Chapter 1 THE INQUIRY PROCESS Human Rights is about balancing the rights of all of us as individuals within the community, and yet the mentally ill do not seem to have their rights taken into account at all in many cases — let alone balanced.1 Human Rights and Equal Opportunity Commission Under Federal law the Human Rights and Equal Opportunity Commission2 (the Commission) has two primary responsibilities: • To increase the understanding, acceptance and observance of human rights in Australia; and • To promote a fairer society by protecting human rights and ensuring that Australia complies with its human rights obligations under international law.3 To achieve these objectives the federal parliament has given the Commission extensive functions — which include conducting Inquiries, reporting on any laws which should be made, or other action which should be taken by Australia, to properly protect human rights. Background to this Inquiry Evidence outlined in the Commission's earlier report, Our Homeless Children* suggested that a disproportionate number of children and young people who ended up on the streets were suffering undiagnosed and untreated mental health problems. Subsequent research clearly established that this failure to protect and appropriately care for those affected by psychiatric disorders was not confined to the young — and that in many areas the human rights of individuals affected by mental illness were being ignored, eroded or seriously violated. Our preliminary research also suggested a serious failure by governments to provide sufficient resources to protect the fundamental rights of many thousands of Australians affected by mental illness or psychiatric disability. It also revealed: Human Rights and Equal Opportunity Commission Page 3 • Widespread ignorance about the nature and prevalence of mental illness in the community; • Widespread discrimination against people affected by mental illness; • Widespread misconceptions about the number of people with a mental illness who are dangerous; • A widespread belief that few people affected by mental illness ever recover. The Human Rights Commissioner therefore decided to conduct a National Inquiry — based on Australia's human rights obligations.5 Other Inquiries The need for a National Inquiry has been dramatically underlined by the report on Chelmsford Private Hospital in NSW, by the Inquiry into Ward 10B in Townsville, and perhaps also by the Lakeside Inquiry in Ballarat, Victoria. Those inquiries have documented numerous examples of serious violations of the most basic human rights of mentally ill people... Placed in a human rights context, the treatment meted out to the patients at Chelmsford represents one of the most systematic and sustained gross violations of human rights in this nation's history. It was a disgrace to this country, a disgrace to psychiatry, a disgrace to the governments and bureaucrats who allowed it to happen. Many people lost their lives as is now a matter of public record. It would be comforting to think that what happened there...could not happen anywhere else. It would also, in our view, be extremely naive.6 The development of psychiatric facilities and mental health services in Australia has been plagued by controversy. The first asylum was commissioned by Governor Macquarie, with the instruction that there was to be 'cleanliness, kindness, nutrition, medical attention, recreation and good record keeping.'7 Disregard for this injunction signalled the beginning of a pattern of neglect which, in some facilities, continues to this day. As outlined in Chapter 5 — Mental Health Services, the post-war period saw the development of a number of revolutionary treatments for psychiatric disorders which meant that most people affected by mental illness no longer required long term institutional care.8 In the intervening years numerous inquiries into institutional care and community mental health services have been undertaken. However, none have Page 4 Mental Illness Inquiry involved carers, consumers and clinicians on a national basis, and their recommendations have frequently been ignored. An historical review of those Inquiries does not leave one with many precedents for change or with optimism for the future. Governments seem peculiarly immobile in implementing progressive development for the betterment of the mentally ill.9 In NSW alone, there have been approximately 40 inquiries into psychiatric facilities and services since the first recorded case of mental illness in 1801. The majority of State and Territory investigations examined issues such as maladministration, under-resourcing, overcrowding, abuse and harassment, and inadequate legislation. The only two which attempted to provide a national perspective10 essentially ignored the issue of the rights of those affected. Nevertheless, the desperate under-resourcing of mental health services and the need for a properly regulated system of accountability and professional peer scrutiny were recurring themes.11 These issues acquired a sense of urgency in the 1980s with the revelations of serious abuses in psychiatric facilities in three different States. The NSW Royal Commission into Deep Sleep Therapy at Chelmsford Hospital, the Commission of Inquiry into Ward 10B of Townsville General Hospital, Queensland and the investigation into Lakeside Hospital, at Ballarat in Victoria, provided frightening reminders of the results of 'bureaucratic nonchalance and indifference.'12 Terms of Reference This Inquiry has been conducted in accordance with the following terms of reference: 1. To inquire into the human rights and fundamental freedoms afforded persons who are or have been or are alleged to be affected by mental illness, having due regard to the rights of their families and members of the general community. 2. In particular, to inquire into the effectiveness of existing legislative provisions, legal mechanisms and other measures in protecting and promoting the human rights of such persons. 3. To examine the respective roles and responsibilities of Commonwealth, State and Territory Governments in these areas. Human Rights and Equal Opportunity Commission Page 5 4. Without limiting the generality of the preceding terms, to consider: (a) any discrimination on the basis of mental illness in Commonwealth laws or programs; (b) any discrimination in employment, occupation, accommodation or access to goods and services on the basis of mental illness; (c) human rights in relation to institutional and non-institutional care and treatment of persons with mental illness. The Commissioners The Federal Human Rights Commissioner, Mr Brian Burdekin, chaired the Inquiry. He was assisted by Dame Margaret Guilfoyle and Mr David Hall. Dame Margaret Guilfoyle, DBE LLB, is President of the Royal Melbourne Hospital, and is currently the Deputy Chair of the Victorian Mental Health Research Institute. Her career has included 16 years as Senator for Victoria, during which time she was Federal Minister for Education in 1975, Minister for Social Security from 1975 to 1980, and Minister for Finance from 1980 to 1983. Dame Margaret is a Director of several charitable trusts and a Member of the Council of Deakin University. David Hall is the Executive Director of the Richmond Fellowship of Victoria, and the first convenor of the National Coalition of Mental Health and Psychiatric Disability Groups. Mr Hall has an extensive background in social welfare work, including responsibility for the coordination of welfare services with a number of government departments at both Federal and State level. Professor Beverley Raphael acted as special adviser to the Inquiry. Professor Raphael, who heads the Department of Psychiatry at the University of Queensland, was formerly President of the Royal Australian and New Zealand College of Psychiatrists and is currently a member of the National Mental Health Working Party for the Australian Health Ministers' Conference. She also chairs the National Health and Medical Research Council's Mental Health Committee. Professor Neil Rees, Dean of Law, University of Newcastle, Professor David Copolov, Director, Victorian Mental Health Research Institute and Mr Simon Champ, Schizophrenia Fellowship of NSW, also provided substantial advice and assistance in reviewing sections of the material included in this report. Page 6 Mental Illness Inquiry The Commission has received hundreds of submissions, and thousands of letters and phone calls from those affected by mental illness and their families. This report is a testimony to their courage and determination. Procedure of the Inquiry Commissioner Burdekin formally announced the Inquiry in June 1990. Several strategies were developed to ensure the involvement of a large number of Australians directly affected by mental illness. Confidentiality Because of the stigma and discrimination still frequently associated with psychiatric disability, the Inquiry was careful to protect the identities of those witnesses who requested confidentiality. Private hearings were convened as necessary throughout the Inquiry and those wishing to make confidential written submissions were able to do so. The number of witnesses who requested anonymity is disturbing testimony to the stigma and discrimination which still surround mental illness. Hearings Public hearings commenced in Melbourne on 8 April 1991, and over the next 15 months were convened in a representative selection of cities and regional centres across Australia. In addition to witnesses from cities in which the hearings were convened, arrangements were made for people wishing to give evidence to travel from smaller centres in every State and Territory. The Inquiry considered evidence from 456 witnesses during its formal hearings. (A list of individuals and the organisations they represented is included at Appendix 1.) Human Rights and Equal Opportunity Commission Page 7 Location of Hearings Location State Date Melbourne VIC 8,9,10 April 1991 Ballarat VIC 11 April 1991 Sydney NSW 17,18,19,20.21 June 1991 Sydney NSW 8 July 1991 Newcastle NSW 9 July 1991 Orange NSW 11 July 1991 Cairns QLD 9 August 1991 Townsville QLD 12,13 August 1991 Brisbane QLD 14,15,16 August 1991 Port Lincoln SA 18 October 1991 Adelaide SA 21,22,23 October 1991 Hobart TAS 11,12,13 November 1991 Devonport TAS 4 November 1991 Perth WA 10,11,12 February 1992 Albany WA 14 February 1992 Canberra ACT 18,19 March 1992 Darwin NT 21 July 1992 Alice Springs NT 23 July 1992 Table 1 Public Forums Public forums were convened in conjunction with several of the hearings. These enabled people affected by psychiatric disability, their families and carers to provide information to the Inquiry in a more informal setting. Over 300 people participated in these open sessions. Page 8 Mental Illness Inquiry Private Hearings During the forums, Commissioners and members of the Inquiry's staff also conducted private hearings with individuals wishing to make a confidential submission to the Inquiry. (Over 60 people preferred to provide information in this way.) Informal Consultations Members of the Inquiry conducted informal consultations with individuals affected by mental illness, consumer and carer organisations, and mental health professionals. Commissioner Burdekin and Inquiry staff conducted consultations with Aboriginal groups in the Northern Territory during 1992 (in addition to taking evidence from Aboriginal representatives and mental health workers in each State). Submissions Advertisements were placed in national, state and territory newspapers inviting interested persons and organisations to make written submissions. More than 820 written submissions were received from individuals affected by mental illness, carers, other family members, organisations, mental health professionals and government authorities. (This figure is closer to 900 if multiple submissions from a number of individuals and organisations are taken into account — see Appendix 2). Table 2 provides a breakdown of evidence received from mental health professionals, church groups, professional associations, government and nongovernment groups, carers and consumers. (Witnesses who gave evidence 'in camera' are identified only as consumer, carer, or mental health professional.) Human Rights and Equal Opportunity Commission Page 9 Description Witnesses Submissions Psychiatrists 70 52 General Practitioners 1 3 Psychologists 7 12 Social, Youth, Welfare Workers 25 23 Nurses 14 20 Professional Associations - Psychiatrists 11 4 - Social/Welfare Workers 2 5 - Occupational Therapists 3 2 - Nurses 4 5 - Psychologists 5 2 Church Related Organisations 13 15 Consumers 44 206 Carers 26 136 Concerned Citizens 68 Federal, State or Local Government representatives 73 60 NGO representatives 159 185 Others 28 Total witnesses: 456 Total submissions: 826 (Excluding multiple submissions from individuals or organisations.) Table 2 Visits to Facilities The Inquiry inspected psychiatric facilities and mental health services throughout Australia (see Appendix 3). Informal discussions with staff and patients were conducted during these visits. Page 10 Mental Illness Inquiry Scope of the Inquiry This Inquiry was conceived and conducted on the premise that individuals affected by mental illness have the same rights as other members of our community. In considering the scope of the Inquiry, we were confronted with a number of difficult definitional issues. (Particular problems associated with defining the term 'mental illness' are examined in Chapter 3 — Definitions and Conceptions of Mental Illness.) Given the complexity of the issues, it was decided not to define mental illness restrictively in the terms of reference for the Inquiry, but to adopt an approach which would allow Commissioners to hear a representative range of relevant views — unimpeded by the limitations of existing legal and clinical definitions (which to a significant extent still reflect ignorance rather than insights into illnesses of the mind). The Inquiry's primary concern in the preparation of this report has been to carefully consider the evidence received. In doing so, emphasis has necessarily been given to the experiences of those affected by the more severe forms of mental illness. However, other matters have been included where the evidence indicates an abuse or neglect of human rights. The Inquiry did not investigate individual complaints (but, where appropriate, did arrange assistance for a number of individuals who wished to pursue particular problems). The Inquiry has given careful consideration to the needs of particularly vulnerable or disadvantaged groups of Australians affected by mental illness or serious mental health problems. The problems of children and adolescents have been examined in the light of evidence that many serious psychiatric disorders have their onset in adolescence — a situation which can have devastating effects if ignored or treated inappropriately. One of the most difficult but important conclusions of this Inquiry is the necessity to avoid clinical definitions precluding appropriate responses for those who urgently need care. While this report primarily focusses on services for those who are affected by mental illness, the evidence established that in relation to some of our most vulnerable young people (including those in prisons or remand centres) an overly meticulous reliance on clinical definitions (particularly those relating to 'mental illness' and 'personality disorder') is not only unhelpful — it is one of the problems. Special attention has also been given to the human rights of elderly people with mental illness. In this context, the Inquiry has included evidence concerning those suffering from Alzheimer's disease and other forms of dementia. The Human Rights and Equal Opportunity Commission Page 11 Inquiry recognises that the classification of dementia as a mental illness is, in some quarters, a contentious issue. However, this report reflects an extensive body of evidence received from carers and community organisations concerning serious violations of the rights of thousands of elderly Australians. Outline of the Report This report addresses the terms of reference in five parts. Part I examines the existing social, legal, medical and institutional frameworks within which care of people with a psychiatric disability takes place. Chapter 1 outlines the scope of the Inquiry, while Chapter 2 describes the substantial body of international human rights law relevant to the care and protection of those affected by mental illness. Chapter 3 outlines the various legal definitions and medical conceptions of mental illness. Chapter 4 provides a comprehensive analysis of existing mental health and related legislation in Australia. Chapter 5 summarises the range of inpatient, community and specialist services available in the government, private and non-government sectors and Chapter 6 provides an overview of the role and training of professionals working in these services. Part I concludes with a summary acknowledging significant developments which have occurred since the Inquiry began in June 1990. Part II of the report deals with evidence concerning psychiatric care and treatment — both in institutional settings and in the community. The reality of living with mental illness and the difficulties involved in securing adequate housing are described in Chapter 10 (Accommodation) and Chapter 11 (Boarding Houses). Chapters 12-16 analyse the personal experiences of those affected by mental illness and their carers and family members, and examine the discrimination suffered by consumers in terms of employment, education and training. Part III of the report examines the position of several vulnerable or particularly disadvantaged groups — concentrating on difficulties faced by children and adolescents, elderly people, women, Aboriginal and Torres Strait Islander people, the homeless, forensic patients and prisoners, people from non-English speaking backgrounds, people in rural and isolated areas and people with dual and multiple disabilities. Part IV addresses the importance of prevention and early intervention services and the need for a substantially enhanced research program. Other chapters examine the effectiveness of accountability measures (notably, quality assurance and accreditation, minimum standards and monitoring mechanisms, patient Page 12 Mental Illness Inquiry advocacy and complaints procedures) and analyse legislative proposals being considered by several State Governments at the time of writing. Part V of the report presents the Inquiry's findings and recommendations for change. Many of the endnotes in each chapter contain important supplementary information. They should be read in conjunction with the body of the report. A Note on Language Use People affected by mental illness frequently suffer discrimination and stigmatisation based on ignorance, labelling and inaccurate stereotypes. The Inquiry consulted widely about terminology and has attempted to use language which is both accurate and appropriate throughout this report. In response to advice from numerous individuals and support groups, the term 'consumer' is generally used to refer to an individual with a psychiatric disability. Individuals affected by mental illness are frequently 'labelled' according to their illness — rather than being seen as individuals with particular disabilities. The Inquiry therefore considers the use of terms such as 'a schizophrenic' or 'a manic depressive' to be both inappropriate and inherently discriminatory. They have not, therefore, been used in this report. Incidence of Mental Illness The incidence of mental illness in Australia has not been established definitively. The lack of epidemiological studies and the absence of a comprehensive data base (including information regarding the level of disability associated with major mental illness) are regrettable.13 However, it is clear that: Mental illness touches all socioeconomic groups in Australia, and there is growing evidence that its morbidity is greatest in the most productive working years when family responsibilities are also at their peak.14 It is also certain that the number of people affected is far higher than is generally recognised. At least 250,000 Australians (approximately 1.5 percent of the population) suffer from major mental illnesses15 and approximately one in five adults have, or will develop, some form of mental disorder.16 Although these figures are only estimates .they illustrate the magnitude of the problem.17 Human Rights and Equal Opportunity Commission Page 13 Studies also indicate that despite the fact that approximately 20 percent of Australians are likely to be affected by a mental illness or disorder, only a small percentage (estimated at around 3 percent of those who become ill) ever come to the attention of specialist mental health services. (Of these, approximately two-thirds will be treated by the public health system.18) Approximately 1 percent of the population (170,000 Australians) suffers from schizophrenia.19 Schizophrenia therefore affects more Australians than many other better known illnesses.20 Twenty to thirty percent of people who experience an episode of schizophrenia recover without ever needing to be rehospitalised; approximately 40 percent suffer recurrent episodes over several years; and approximately 35 percent will be affected throughout their lives. In any one year, one in five people affected by schizophrenia will require hospitalisation.21 Depressive disorders also constitute a major mental health problem in Australia, with up to 10 percent of adults affected. (The incidence of other forms of mental illness and disorder is addressed in various chapters throughout the report). Disability It is also important to note that while the severity and duration of different forms of mental illness vary substantially, the resulting disability may effect the individual for long periods of time. The manifestations of mental illness are diverse, range in severity and are inextricably linked with quality of life issues, employment opportunities, social and family relationships, general health, economic factors and community participation.22 Children and Adolescents Evidence presented to the Inquiry also indicated that approximately 15 percent of adolescents experience some form of mental health problem and more than 1 percent have serious psychiatric disorders which warrant specialist intervention.23 (The urgent need for appropriate programs and facilities for young people is discussed in Chapter 20.) Elderly People The rapid increase in Australia's elderly population will bring a corresponding increase in the mental disorders of the aged. Page 14 Mental Illness Inquiry • In most industrialised countries dementia currently affects about 5 percent of people over 65. However, the incidence rises sharply as age increases and approximately 20 percent of those over 80 are afflicted. At present, 100140,000 Australians are estimated to be suffering moderate to severe dementia; this number is expected to exceed 200,000 within the next ten years. • Approximately 50 percent of elderly people have at least one symptom of depression.24 Estimates vary, but a recent study found major depression in over 10 percent of those over 65.25 (One measure of this is that the suicide rate for men 70-79 years is the highest for any age group.26) Some studies are identifying increasing rates of depression in women. Conclusion It is clear from the evidence presented in this report that the cost of mental illness in terms of human lives and suffering is enormous. In addition to the pain suffered by consumers, these costs include disruption to family life, and sometimes unbearable pressures on other family members who feel powerless to assist the person who is ill. Estimating the financial costs — both to the individual and to society — is a complicated task because of the differing degrees of disability experienced by consumers and the lack of data available in this area.27 But the costs of our current neglect in terms of violations of the most fundamental rights of Australians affected by mental illness are clearly documented in this report. They demand an urgent, concerted and effective response. Human Rights and Equal Opportunity Commission Page 15 1. Brian Burdekin, Federal Human Rights Commissioner and Chair of the Inquiry. Opening address, Darwin hearings, 23.7.92. 2. The Commission is a permanent independent statutory authority with responsibility for the following Acts of Parliament: • Human Rights and Equal Opportunity Commission Act 1986 • Racial Discrimination Act 1975 • Sex Discrimination Act 1984 • Privacy Act 1988 • Disability Discrimination Act 1992 These Acts incorporate or otherwise give effect to the following international instruments which Australia has ratified or to which it has otherwise committed itself: • International Covenant on Civil and Political Rights • Declaration of the Rights of the Child • Convention on the Rights of the Child • Declaration on the Rights of Mentally Retarded Persons (sic) • International Labour Organisation Convention Concerning Discrimination in Respect of Employment and Occupation (ILO Convention 111) • Declaration on the Rights of Disabled Persons • Convention on the Elimination of All Forms of Racial Discrimination • Convention on the Elimination of All Forms of Discrimination against Women • Organisation for Economic Co-operation and Development Guidelines for the Protection of Privacy and Transborder Flows of Personal Data • Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. See Chapter 2 for more detailed discussion of the relevant human rights provisions. 3. s. 11, Human Rights and Equal Opportunity Commission Act 1986. 4. Human Rights and Equal Opportunity Commission, Our Homeless Children, AGPS, Canberra 1989. 5. In addition to the rights laid down in the International Covenant on Civil and Political Rights, the Declaration of the Rights of Disabled Persons provides that disabled people — including those with a psychiatric disability — have the right to treatment, rehabilitation, education, training and other services to develop their skills and capabilities to the maximum. The recently adopted United Nations Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care also clearly stipulate that it is not acceptable to have lower standards or fewer resources for mental health care than the rest of the health care system. 6. Commissioner Burdekin, Opening address, Sydney 17.6.91, pi. 7. Cited in Sydney Gazette, 1 June 1811. 8. M Lewis, Managing Madness — Psychiatry and Society in Australia 1788-1980, AGPS, Canberra 1980. 9. J Lawrence,'Inquiries into psychiatry: Chelmsford and Townsville,' Medical Journal of Australia, vl55 Nov 1991, p654. 10. A Stoller and K W Ascott, Mental Health Facilities and Needs of Australia, Government Printing Office, Canberra, 1955; P Eisen and K Wolfenden, A National Mental Health Services Policy, Report of the Consultancy to advise Commonwealth, State and Territory Health Ministers, AGPS, Canberra 1988. Page 16 Mental Illness Inquiry 11. Some of the more recent reviews were: National A Stoller and K W Ascott, Mental Health Facilities and Needs of Australia, Government Printing Office, Canberra 1955. P Eisen and K Wolfenden, National Mental Health Services Policy. The Report of the Consultancy to advise Commonwealth, State and Territory Health Ministers, AGPS, Canberra 1988. New South Wales Royal Australian and New Zealand College of Psychiatrists, Discrimination Against the Mentally III, Sydney 1980. D T Richmond (Chairperson), Inquiry into Health Services for the Psychiatrically Ill and Developmentally Disabled (The Richmond Report), Sydney 1983. Ministerial Advisory Committee, Review of Standards of Patient Care in 5th Schedule Hospitals in New South Wales. Report to the NSW Minister for Health, Sydney 1987. W A Barclay (Chairman), Ministerial Implementation Committee on Mental Health and Developmental Disability Report to the Minister for Health (The Barclay Report), Sydney 1988. Victoria Consultative Council on Review of Mental Health Legislation. (Myers Report) Report of the Consultative Council on Review of Mental Health Legislation, Melbourne 1981 L Lippman, Melville Evaluated: An Experiment in Community Mental Health Care, Mental Health Research Institute and Health Commission of Victoria, Melbourne 1982. Ministerial Review of Community Health Services, Report of the Ministerial Review of Community Health Services in Victoria, Melbourne 1985. R Duckmanton, National Health and Medical Research: Role of Community Support Systems in the Rehabilitation of the Chronic Mentally III, Larundel Psychiatric Hospital, Melbourne 1987. J R Rimmer, W J Buckingham and J F Farhall, Achieving Continuity of Care in comprehensive Psychiatric Service Systems: Victoria's Approach, Office of Psychiatric Services, Melbourne 1988. Parliament of Victoria, Social Development Committee, Interim Report Upon the Inquiry Into Mental Disturbance and Community Safety: Strategies to Deal with Persons with Severe Personality Disorder who Pose a Threat to Public Safety, Melbourne 1990 Page 17 Mental Illness Inquiry Western Australia C Campbell and Associates, Health Services for the Mentally III in Western Australia: A Plan for their Organisation and Further Development, 5 Volumes, Perth 1982. R Kosky, Psychiatry: A New Era, Health Department of Western Australia, Perth 1984. A Hodge (Chairperson), Report of the Working Party on Psychiatric Rehabilitation Services, Health Department of Western Australia, Perth 1984. A Hodge (Chairperson), Report of the Working Party Concerning Adult Psychiatric Services, Health Department of Western Australia, Perth 1984. M J Murray (Chairperson), Report of the Interdepartmental Committee of the Treatment of Mentally Disordered Offenders, Western Australia Interdepartmental Committee on the Treatment of Mentally Disordered Offenders, Perth 1989. C Zelestis, Report of the Inquiry into the Treatment of Psychiatric Patients at Graylands Hospital and other Psychiatric Hospitals in Western Australia, Perth 1989. L Newby, Working Party to Review the Mental Health-Act: Discussion Paper, Health Department of Western Australia, Perth 1990. G Smith (Chairperson), Report of the Working Party on Care of Patients in Psychiatric Hospitals in Western Australia, Health Department of Western Australia, Perth 1990. South Australia S Smith (Chairperson), Report of the Inquiry into Mental Health Services in South Australia, Adelaide 1983. Queensland Division of Psychiatric Services, Report on Psychiatric Hostels and Other Accommodation in Brisbane and Ipswich, Queensland Department of Health, Brisbane 1977. Working Party on Mental Health Services in Queensland, Mental Heath Services in Queensland. Report to the Standing Committee on the Rationalisation of Hospital Services, Queensland Department of Health, Brisbane 1987 Tasmania B Burkett, Report of the Board of Inquiry into Royal Derwent Hospital and Millbrook Rise Hospital, Hobart 1980 Mental Health Services Commission, Hills/Hammond Report, Royal Derwent Hospital, Hobart 1989. Mental Health Services Commission, Boss Review: The Interaction of Persons with Severe and Continuing Behaviour Disorders with Community Based Helping Agencies, Hobart 1990. Page 18 Mental Illness Inquiry Australian Capital Territory ACT Health Authority, People, Health and Strategies, Canberra 1987. ACT Council of Social Services, Out to Lunch: A Survey of Mental Health Services for Young People in the ACT, Canberra 1988. 12. Commissioner W J Carter Q.C., Commission of Inquiry into the Care and Treatment of Patients in the Psychiatric Unit of Townsville General Hospital (Ward 10B), vl and 2, Brisbane 1991. 13. Since the Inquiry began, the Hon Brian Howe, Minister for Community Services, has announced the establishment of a national data base as part of the National Mental Health Policy. 14. D T Richmond (Chairperson), Inquiry into Health Services for the Psychiatrically Ill and Developmentally Disabled (Richmond Report), Part 3: Mental Health Services for The Mentally III, NSW Health Department, Sydney 1983, pl7. 15. id. 16. According to Gavin Andrews in The Tolkien Report: A Description of a Model Health Service, Sydney 1991, 16 percent of the population 'meet the criteria for a mental disorder', although only about 3 percent would have sought treatment for the disorder. Richmond, op cit, pl7, estimates that 18-23 percent of the population suffer from a 'significant psychological disorder.' 17. In addition, mortality rates are generally higher for those affected by psychiatric disability than for other individuals. For example, it is estimated that suicide claims the lives of approximately one in ten individuals hospitalised for depression; the lives of those affected by schizophrenia are reduced by approximately ten years; and the mortality rate for those affected by neurosis is twice that of their peer groups. In G Andrews, 'Psychiatry Circa 1990', Unpublished paper. 18. Information provided by Prof Vaughan Carr, Professor of Psychiatry, Newcastle University, in an address delivered to the Newcastle Mental Health Association, 1993. 19. National Health and Medical Research Council (NHMRC), Prevention in the Mental Health Field: Executive Summary, in press. 20. For example, it is approximately five times more common than multiple sclerosis, six times more common than insulin-dependent diabetes, and sixty times more common than muscular dystrophy. In NSW Health Department, Leading the Way: A Framework for NSW Mental Health Services 1991-2001, Sydney 1992, p7. 21. The precise estimate is 19 percent; Commonwealth Rehabilitation Service, Community Based Rehabilitation and Support Services for People with Long Term Mental Illness, Report of the Rehabilitation Advisory Group, Canberra 1991, plO. 22. Help Where Help is Needed, op cit, pl7. 23. Prof Bruce Tonge, representing the Faculty of Child Psychiatrists of the RANZCP. Oral evidence, Melbourne 9.4.91, p237. 24. NHMRC, op cit. 25. Prof John Snowden, psychogeriatrician. Oral evidence, Sydney 20.6.91, p511. 26. id. 27. Chapter 26, Mental Health Research, gives more detailed information on the substantial economic costs associated with psychiatric disability. Human Rights and Equal Opportunity Commission Page 19 Chapter 2 RELEVANT HUMAN RIGHTS PROVISIONS AND INTERNATIONAL LAW Every person with a mental illness shall have the right to exercise all civil, political, economic, social and cultural rights as recognised in the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights and in other relevant instruments...1 Introduction Australia, through successive Federal Governments, has committed itself to honour a range of international standards on human rights developed by the United Nations since 1945. These standards fulfil part of the mandate of the United Nations under its Charter (which Australia helped draft) to promote universal recognition and respect for human rights. The Charter was, in large part, adopted in response to the atrocities committed by the Nazi regime and others leading up to and during the Second World War. The groups subjected to these atrocities included mentally ill people and others affected by disabilities. In 1948 the United Nations adopted the Universal Declaration of Human Rights, which proclaimed fundamental rights to which 'everyone' should be entitled without discrimination. The Declaration was intended as a common standard of attainment for all nations. It was not, however, seen at the time as imposing binding legal obligations on governments (although many international lawyers have concluded that the Declaration now has substantial legal force). Moreover, it proclaimed rights only in general terms — rather than setting out in detail how those rights should be translated into law and practice. In the last forty years development of more detailed instruments has therefore continued. Standards have been developed, in particular, to address specific types of discrimination and concerning the human rights of particularly vulnerable groups. These standards are set out in a series of Covenants, Conventions2, Declarations, Principles and Rules. Some of these instruments are binding on Australia as a matter of international law. Others, while not strictly binding in international law, set out agreed international standards, to which Australian governments have committed themselves in a variety of ways — including, in some cases, by incorporating them in Australian legislation.3 Page 20 Mental Illness Inquiry Human Rights of People with Mental Illness People with mental illness are human beings with human rights. This simple and fundamental point, which unfortunately still needs to be stressed, has been one of the fundamental tenets of this Inquiry. The international law of human rights explicitly recognises rights which apply to 'everyone' or to 'all individuals'. Further, the rights recognised in the various international human rights instruments are required to be respected and ensured to all individuals 'without any discrimination'.4 It is clear then, as a matter of international law, that individuals with mental illness are entitled without discrimination to the full range of human rights. This does not mean that the law or government policy may not make special provision for people with mental illness in some circumstances — including services to provide for special needs, or legal provisions referring to questions of capacity to make decisions. The principle of non-discrimination does not require that everyone be treated alike. Distinctions should not be regarded as discriminatory if they are not arbitrarily made and do not have the purpose or effect of denying or restricting the equal enjoyment of human rights. The international human rights instruments clearly provide that special measures to cater for special heeds are not included in the definition of discrimination. Rather, special measures of assistance or protection may be needed to ensure the equal enjoyment of human rights to groups of people who are particularly vulnerable or disadvantaged.5 Instruments Incorporated in Federal Legislation A number of international human rights instruments have been incorporated in Federal legislation in the Human Rights and Equal Opportunity Commission Act — although, as clearly emerges in Part III of this report, this is only a small contribution to making these rights a reality in law and in practice. The International Covenant on Civil and Political Rights The International Covenant on Civil and Political Rights (ICCPR) was adopted by the United Nations General Assembly in 1966. Australia ratified (that is, became a Party to) the ICCPR on 13 August 1980. This treaty requires that all Human Rights and Equal Opportunity Commission Page 21 Parties 'respect and ensure to all individuals within their territory and subject to their jurisdiction' the rights which the Covenant recognises. These rights include: • the right to life (Article 6); • the right to freedom from cruel, inhuman or degrading treatment or punishment (Article 7); • the right to liberty and security of the person (Article 9); • the right to be treated with respect for dignity and with humanity, if deprived of liberty (Article 10); • the right to freedom of movement and choice of residence (Article 12); • the right to equality before the courts and tribunals, and to a fair hearing in any criminal case or law suit; to be presumed innocent until proved guilty if charged with a criminal offence; and in determination of any criminal charge to guarantees including the right of every person: • to be informed promptly, in detail and in a language the person understands of the nature and cause of the charge; • to be tried without undue delay; • to be tried in his or her presence, and defend him or herself in person or through counsel of his or her own choosing; • to have legal assistance assigned where required by the interests of justice, free of charge where the person has insufficient means to pay; • to examine witnesses; • to have the free assistance of an interpreter if he or she cannot speak the language used in court (Article 14); • the right to recognition as a person before the law (Article 16); • the right to freedom from arbitrary interference with privacy or family life (Article 17); • the right to freedom of conscience and religion (Article 18); Page 22 Mental Illness Inquiry • the right to freedom of opinion, expression and information (Article 19); • the right to freedom of association including the right to form and join trade unions (Article 22); • the right to marry and found a family (Article 23); • the right of children to special protection (Article 24); • the right to take part in public affairs, to vote and to be elected, and to have access on equal terms to public service (Article 25); • the right to equality before the law and the right to equal protection of the law; and • the right of people belonging to ethnic, religious or linguistic minorities to enjoy their own culture, practice their religion or use their own language, in community with other members of their group (Article 27). The meaning and application of these rights, and the extent to which they are protected and respected in practice for people with a mental illness in Australia, are discussed in later chapters of this report. Article 2.2 of the ICCPR requires Governments to 'adopt such legislative or other measures as may be necessary to give effect to the rights recognised'. Article 2.3 requires them 'to ensure that any person whose rights or freedoms as herein recognised are violated shall have an effective remedy'. The ICCPR specifically requires each country which has ratified it: to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status (Article 2.1). The terms of this Article indicate that discrimination 'of any kind' (including, by definition, discrimination relating to mental illness or psychiatric disability) which affects the exercise or enjoyment of rights recognised elsewhere in the ICCPR is included.6 Discriminatory or unequal treatment affecting people with mental illnesses but which is based on other factors (such as race or sex) is also subject to the non-discrimination provisions of international human rights law.7 The obligation to 'respect' these rights requires that Governments refrain from any action which infringes them. The obligation to 'ensure' these rights is, Human Rights and Equal Opportunity Commission Page 23 however, more far reaching — requiring Governments to take active measures where necessary to guarantee these rights. The non-discrimination provision embodied in Article 2 of the ICCPR applies only to rights recognised in the ICCPR itself. These rights, clearly, do not cover all significant aspects of social life — for example, neither employment nor health care is expressly mentioned. However, there is also a more general equality and non-discrimination provision in the ICCPR. Article 26 stipulates: All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, language, religion, political or other opinion, national or social origin, property, birth or other status. Unlike Article 2, Article 26 deals with discrimination not only with respect to those rights recognised in the ICCPR itself but with discrimination in any area of law or government action. In Australia this clearly includes actions of State and Territory governments in addition to those of the Federal Government.8 It is less certain whether there is any obligation imposed by the non- discrimination provisions of the ICCPR to prohibit discrimination by individuals or in the private sector (beyond the area of the rights specifically recognised in other provisions of the ICCPR). There are, however, other international human rights instruments which deal with these issues. Discrimination (Employment and Occupation) Convention 1958 The Discrimination (Employment and Occupation) Convention 1958 (also known as International Labour Organisation Convention No lll), 9 is also incorporated in Federal law in the Human Rights and Equal Opportunity Commission Act. This Convention defines discrimination to mean: any distinction, exclusion or preference [made on any of the grounds specified in the Convention itself or specified by the State concerned] which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation but does not include distinctions based on the inherent requirements of the job. The Convention specifically includes vocational training within the definition of employment and occupation.10 Page 24 Mental Illness Inquiry The Convention itself does not specify mental illness, disability, impairment or medical record as prohibited grounds of discrimination. However, it does provide11 for Parties to the Convention (such as Australia) to specify additional grounds of discrimination. Following recommendations from the Human Rights Commissioner, regulations under the Human Rights and Equal Opportunity Commission Act were made to add a number of grounds (including physical, mental, intellectual and psychiatric disability; impairment and medical record) to the Commission's jurisdiction in relation to this Convention as from January 1990.12 By ratifying this Convention, Australia has undertaken to pursue a national policy designed to 'promote equality of opportunity or treatment in respect of employment and occupation with a view to eliminating any discrimination in respect thereof (Article 2). More specifically, Australia is obliged: (a) to seek the co-operation of employers' and workers' organisations and other appropriate bodies in promoting the acceptance and observance of this policy; (b) to enact such legislation and to promote such educational programs as may be calculated to secure the acceptance and observance of the policy; (c) to repeal any statutory provisions and modify any administrative instructions or practices which are inconsistent with the policy; (d) to pursue the policy in respect of employment under the direct control of a national authority; (e) to ensure observance of the policy in the activities of vocational guidance, vocational training and placement services under the direction of a national authority...13 The Convention also specifies that special measures for people with disabilities, including affirmative action, may be introduced without being prohibited as discrimination against other workers.14 The Declaration on the Rights of Disabled Persons The Declaration on the Rights of Disabled Persons was adopted by the United Nations in 1975. It defines 'disabled person'15 to mean 'any person unable to ensure by himself or herself, wholly or partly, the necessities of a normal individual and/or social life, as a result of deficiency, whether congenital or not, in his or her physical or mental capacities'. This definition would include many people with a mental illness, whether or not they also have other disabilities. The United Nations Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care (discussed later Human Rights and Equal Opportunity Commission Page 25 in this chapter) specifically recognise16 the applicability of this Declaration to people with a mental illness. The Declaration recognises that people with disabilities are entitled to: • the inherent right to respect for their human dignity; • the same fundamental human rights, whatever the origin, nature and seriousness of their handicaps and disabilities, as their fellow citizens, including the right to a decent life, as normal and full as possible (Principle 2); • the right to legal safeguards against abuse of any limitation of rights made necessary by the severity of a person's handicap, including regular review and the right of appeal (Principle 4); • the right to any necessary treatment, rehabilitation, education, training and other services to develop their skills and capabilities to the maximum (Principle 6); • the right to economic and social security and the right, according to their capabilities, to secure and retain productive employment and to join trade unions (Principle 7); • the right to have their needs considered in economic and social planning (Principle 8); • the right to family life, the right to participate in all social, recreational and creative activities, and the right not to be subjected to more restrictive conditions of residence than necessary (Principle 9); • the right to protection against exploitation or discriminatory, abusive or degrading treatment (Principle 10); • the right to qualified legal assistance to protect their rights, and to have their condition taken fully into account in any legal proceedings (Principle 11). The Declaration of the Rights of the Child The Declaration of the Rights of the Child, which was adopted by the United Nations General Assembly in 1959, is also incorporated in the Human Rights and Equal Opportunity Commission Act. This Declaration specifically provides that 'the child who is physically, mentally or socially handicapped shall be given the special treatment, education and care required by his [or her] Page 26 Mental Illness Inquiry particular condition' (Principle 5). The Declaration of the Rights of the Child also provides that every child should have the right, without discrimination, to: • opportunities and facilities, by law and by other means, to enable him or her to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity (Principle 2); • enjoy the benefits of social security; • grow and develop in health, and for this purpose is entitled to special care and protection; • adequate nutrition, housing, recreation and medical services (Principle 4); • where possible, grow up in the care and protection of his or her family (Principle 6); • receive education which will enable the child, on the basis of equal opportunity, to develop his or her abilities, judgment and sense of responsibilities and to become a useful member of society; • opportunities for play and recreation (Principle 7); • protection from neglect, cruelty and exploitation, from child trafficking, and from any occupation or employment which would prejudice his or her health or education or interfere with his or her physical, mental or moral development. Although these Declarations do not create international legal obligations in the same way as a treaty, such as the ICCPR, they represent accepted international standards. Further, their incorporation by the Federal Parliament into the Human Rights and Equal Opportunity Commission Act represents a formal commitment to the rights and standards which these Declarations set out. Other International Conventions In addition to the international instruments incorporated in the Human Rights and Equal Opportunity Commission Act, there are a number of other instruments which are particularly relevant to the effective protection of human rights of people with disabilities. Human Rights and Equal Opportunity Commission Page 27 Convention on the Rights of the Child Australia has now ratified the Convention on the Rights of the Child (CROC), adopted by the United Nations General Assembly in 1989.17 The Convention (which has recently been added to the list of international instruments by which 'human rights' are defined for the purpose of jurisdiction of the Human Rights and Equal Opportunity Commission) is a binding international treaty which Australia has committed itself, as a matter of international law, to comply with and implement.18 The Convention applies to everyone under the age of 1819 and requires Parties to the Convention to: respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parents' or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.20 The Convention deals with a much wider range of rights than the Declaration on the Rights of the Child. These include: • rights to life, survival and development (Article 6); • rights against interference with family life (Articles 9 and 16); • rights to support services for families (Article 18); • rights to protection from abuse, neglect or exploitation (Article 19 and Articles 32-36); • the right of the child to the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. Parties are also obliged to ensure adequate pre- and post-natal care for mothers21 (Article 24); • rights concerning education, including that primary and secondary education be available and accessible to all (Article 29); • rights to social security and adequate living standards (Articles 26 and 27); • rights of children in substitute care or alternative family care, including in relation to standards of facilities (Article 3); Page 28 Mental Illness Inquiry • the right of children placed for treatment of mental health problems to periodic review of treatment and other relevant circumstances (Article 25); • rights of children of minority communities or indigenous peoples to enjoy their own culture (Article 30); • the right to measures to promote physical and psychological recovery and social reintegration of child victims of any form of neglect, exploitation or abuse, torture or other cruel, inhuman or degrading treatment or punishment, or of armed conflicts; and for such recovery and reintegration to take place in an environment which fosters the health, self respect and dignity of the child and; • rights in the administration of justice and for children deprived of liberty (Articles 37 and 40) including: • freedom from arbitrary detention; • that detention should be a measure of last resort and for the shortest appropriate period; • that every child deprived of liberty should be treated with humanity and consistently with the needs of persons of his or her age; • the right to maintain contact with family; • the right to prompt access to legal and other appropriate assistance. The rights in each of these areas are required22 to be guaranteed without discrimination. The Convention also makes specific provision for children with disabilities in Article 23, which includes requirements that Parties take steps to: ensure that the disabled child has effective access to and receives education, training, health care services, rehabilitation services, preparation for employment and recreation opportunities in a manner conducive to the child's achieving the fullest possible social integration and individual development, including his or her cultural and spiritual development. The Convention does not specifically define 'disabled child'. It is clear, however, in the Inquiry's view, that this term includes children who have a psychiatric disability and that the obligations set out in this provision apply to children who have a mental illness or comparable condition. Human Rights and Equal Opportunity Commission Page 29 The International Covenant on Economic, Social and Cultural Rights The International Covenant on Economic, Social and Cultural Rights (ICESCR)23 was adopted by the United Nations General Assembly together with the ICCPR in 1966, and ratified by Australia in 1975. In addition to recognising rights concerning employment,24 the ICESCR recognises rights in a range of other areas, including housing,25 health,26 and education.27 The ICESCR is not incorporated in the Human Rights and Equal Opportunity Commission Act or other Federal legislation. Article 2.1 of the ICESCR requires States Parties to 'take steps...by all appropriate means, including particularly the adoption of legislation' with a view to the progressive realisation of the rights which the Covenant recognises. This provision allows for progressive rather than immediate implementation in recognition that many of the rights set out require significant resource allocation. To whatever extent enjoyment of these rights is achieved in a particular nation, however, the ICESCR requires that they be guaranteed on a non-discriminatory basis. Article 2.2 provides that States Parties must: guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status. This Covenant is one of the sources of power on which the new national Disability Discrimination Act is based. Clearly, however, guaranteeing the rights recognised in the Covenant to people with a mental illness requires a wider range of measures than legislation alone, including anti-discrimination legislation. Convention on the Elimination of All Forms of Racial Discrimination The Convention on the Elimination of All Forms of Racial Discrimination (CERD), ratified by Australia in 1975, is incorporated in Federal law in the Racial Discrimination Act 1975. This Convention is relevant to issues of equal treatment by and access to mental health services for people of whatever race or national or ethnic origin, including appropriate responses to special needs. As with other international conventions in this area, CERD requires a broader range of measures of implementation than simply the enactment of anti- Page 30 Mental Illness Inquiry discrimination legislation. This Convention stipulates a comprehensive obligation: to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights...28 The Convention then lists a wide range of the rights recognised in the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, specifically including rights such as the right to public health and medical care and the right to equal treatment before tribunals and other organs administering justice. Convention on the Elimination of All Forms of Discrimination Against Women The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), ratified by Australia in 1983, is incorporated in Federal law in the Sex Discrimination Act 1984. As with CERD, CEDAW sets out wide ranging obligations for the elimination of discrimination and promotion of equality, which are not limited to enactment of anti-discrimination legislation. Specifically, the Convention requires Parties to take measures to ensure women equal access to health care services and information.29 Mental Illness Principles Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care were adopted by the United Nations General Assembly in 1991. These Principles have not been formally incorporated in Australian legislation. However, they have been endorsed in the National Mental Health Policy released by the Minister for Health, Housing and Community Services in April 1992, which sets 1998 as a target date for ensuring full compliance by Australian mental health legislation with the standards set out in the Principles. The Principles are particularly valuable in specifying the way in which human rights recognised in other instruments apply to people with mental illness and to situations affecting them. This report, therefore, treats them as a basic benchmark. The Principles specify that they are to be applied: Human Rights and Equal Opportunity Commission Page 31 without discrimination of any kind such as on grounds of disability, race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, legal or social status, age, property or birth. While they focus primarily on human rights in relation to the mental health system, the Principles also stipulate: • that every person with a mental illness has the same basic rights as every other person, specifically including the rights set out in the International Covenant on Civil and Political Rights and the rights recognised in the Declaration on the Rights of Disabled Persons (Principle 1.5); • that discrimination on the basis of mental illness is not permitted (Principle 1.4); • that every person with a mental illness has the right to live and work, as far as possible, in the community (Principle 3); and • that people being treated for a mental illness must be accorded the right to recognition as a person before the law (Principle 13).30 The Principles re-affirm that individuals who have a mental illness or who have experienced mental illness have the right to protection from: • exploitation — whether economic, sexual or in other forms; • abuse — whether physical or in other forms; and • degrading treatment (Principle 1.3). In relation to mental health care, the Principles are not restricted to a remedial approach (dealing only with abuses and the means to prevent them). Rather, they recognise the positive contribution which mental health care should make to the enjoyment of human rights, and the right of everyone in the community to such care when necessary. The Principles provide that: All persons have the right to the best available health care, which shall be part of the health and social care system (Principle 1.1); and that: Page 32 Mental Illness Inquiry every patient shall have the right to receive such health and social care as is appropriate according to his or her health needs, and is entitled to care and treatment in accordance with the same standards as other ill persons (Principle 8). This emphasises that people with mental illness or people who have experienced mental illness should not be stigmatised, or disadvantaged in the care available, simply because of the nature of their illness. The Principles also clearly provide that it is not permissible to have lower standards for mental health care, in terms of either programs or resources, than for the rest of the health system. They specifically require that every mental health facility be inspected by competent authorities with sufficient frequency to ensure that the conditions, treatment and care of patients comply with the Principles. The Principles also give important emphasis to the concept of the 'least restrictive alternative' in relation to treatment and require an individualised plan for treatment, to be discussed with the patient and reviewed regularly. They recognise the right to be treated and cared for as far as possible in the community, and the right to treatment suitable to each person's cultural background. At the same time, treatment in the community is clearly required to provide adequate care and adequate resources. Treatment is required to be directed towards enhancing personal autonomy. Accordingly, patients in mental health facilities are to have their rights respected, including their privacy and freedom of communication. Such facilities are to include opportunities for education and vocational training, in addition to appropriate professional care and treatment. The Principles embody detailed requirements for informed consent to treatment. Importantly, they provide a rigorous definition of what constitutes informed consent — which Australian law generally lacks at present — and require safeguards, including review by an independent authority, for the limited number of cases where informed consent cannot be obtained. Special protection is required for children in these circumstances and in relation to mental health care generally. Human Rights and Equal Opportunity Commission Page 33 The Principles make provision in relation to medication, including that it is never to be administered for the convenience of others. They also require that patients in mental health facilities be fully informed of their rights, and have access to their own health records, except in exceptional circumstances. They require that confidentiality of information must be respected. Statements of rights without effective monitoring of their implementation, or remedies for their violation, are of little effect — as experience in this area has demonstrated. The Principles therefore require that: States shall ensure that appropriate mechanisms are in force to promote compliance with these principles, for the inspection of mental health facilities, for the submission, investigation, and resolution of complaints and for the institution of appropriate disciplinary or judicial proceedings for professional misconduct or violation of the rights of a patient (Principle 22). They also require appropriate legislative, judicial, administrative, educational and other measures of implementation (Principle 23). Developing Further International Standards Clearly, therefore, there are now well-defined international standards applicable to a wide range of human rights problems confronting people with disabilities, and particularly those affected by mental illness. Equally clearly, however, implementation of these standards and application to particular situations remains incomplete. In 1990, the United Nations Commission for Social Development was authorised to prepare a set of 'standard rules' on the equalisation of opportunities for people with disabilities, to be submitted to the General Assembly in 1993. It is not yet established what status the proposed Standard Rules will have. It appears, however, that they may take the form of 'Standard Minimum Rules'31 which will assist in the promotion, application and interpretation of relevant instruments which have more formal status as treaties (such as the ICCPR). There is clearly no need or justification for action in Australia to wait for further international standards to emerge. There is already in existence, and binding on Australia, a substantial body of international human rights law, recognising rights which must be respected and ensured on an equal basis to all Australians affected by mental illness. Page 34 Mental Illness Inquiry 1. United Nations Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care, Principle 1.4. 2. Covenant and Convention are both terms used to describe a binding international treaty. 3. International obligations and commitments entered into by Australia do not automatically become part of Australian law. While courts can refer to these standards as part of the common law process of interpreting existing laws, legislation by Parliament is generally required in order to give binding legal effect to international commitments on human rights. The High Court has confirmed (most notably in the 'Dams Case', Commonwealth v Tasmania (1983) 158 CLR 1) that the Federal Parliament has power under the Federal Constitution to legislate to implement international treaty obligations. Under s.51(xxix) of the Australian Constitution, the Federal Parliament may legislate with respect to 'external affairs'. In addition to power to legislate to implement international treaties, the High Court has indicated that there is power to legislate to some extent on matters of 'international concern' even where there is no treaty obligation. The extent of this power, however, remains uncertain. The Federal Government is also, importantly, the level of government internationally accountable for the way in which Australia (including State and Territory Governments) complies with its human rights obligations. There is, however, no legal reason why State and Territory legislation and administration should not also refer to international standards. 4. For example, the International Covenant on Civil and Political Rights, Article 2(1). This Article, and equivalent provisions in several other instruments, go on to specify particular grounds of discrimination: '...such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.' 5. United Nations Principles for the Protection of Persons with Mental Illness, discussed later in this chapter, sum up international law in this area as follows (Principle 1.4): 'Discrimination means any distinction, exclusion or preference that has the effect of nullifying or impairing equal enjoyment of rights. Special measures solely to protect the rights, or secure the advancement, of persons with mental illness shall not be deemed to be discriminatory. Discrimination does not include any distinction, exclusion or preference undertaken in accordance with the provisions of these Principles and necessary to protect the human rights of a person with a mental illness or of other individuals.' A similar approach to the meaning of 'discrimination' has been taken by the international Human Rights Committee in interpreting the International Covenant on Civil and Political Rights: see for example General Comment 18(37) Adopted by the Human Rights Committee, printed in the Report of the Human Rights Committee, 1990 (UN Doc A/45/40), vl pl73. 6. This is, in fact, implicit in the requirement to ensure these rights to 'all individuals'. Essentially the same point was made by Australia's representative participating in the drafting of the Universal Declaration of Human Rights: '...logically, discrimination was prohibited by the use in each Article of the phrase 'every person' or 'everyone’ (UN Doc E/CN.4/AC. 1/SR.24 at 4; cited in J Morsink, 'Women's Rights in the Universal Declaration', Human Rights Quarterly vl3, 1991, p230). In addition 'disability' should be regarded as covered by the concluding phrase 'or other status' in Article 2.1. While there is no clear consensus among legal writers as to the breadth of the obligation imposed by the term 'or other status' or whether disability or illness constitutes a 'status', when the phrase 'or other status' was subsequently discussed in the drafting of the ICCPR, it was regarded as an all inclusive term (see M Bossuyt, Guide to the Travaux Preparatoires of the International Covenant on Civil and Political Rights, 1987, p486). On accepted rules of interpretation in international law, the view held by the drafters of the Covenants should be applied. Human Rights and Equal Opportunity Commission Page 35 7. This report (Part III) examines the situation of a number of groups with special needs — including women, Aboriginal and Torres Strait Islander peoples, people of non-English speaking background and people who have a disability in addition to mental illness. In the case of several of these groups, the non-discrimination provisions of the general human rights instruments (such as the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights) are reinforced by specific instruments on discrimination (the Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination Against Women). 8. Decisions of the Human Rights Committee (the United Nations body responsible for monitoring compliance with the ICCPR) indicate that the obligation embodied in the first sentence of Article 26 to respect and ensure the 'equal protection of the law' constitutes an obligation to prevent discrimination in the law, in the application of the law or in any action under the authority of law. See, for example, Broeks v Netherlands (Communication Nol72/1984) UN Doc A/42/40 (1987), a case concerning social security legislation. 9. Ratified by Australia in 1973. 10. Article 1.3. 11. In Article 1(b). 12. This Convention, in conjunction with the external affairs power, is one of the sources of constitutional power for the new national Disability Discrimination Act 1992. In the Commission's view, the decision of the High Court in Richardson v Forestry Commission (1988) 164 CLR 261, confirms that the same constitutional power attaches to these additional grounds as attaches to the grounds specified in the Convention itself. In the Richardson case the High Court decided that the external affairs power covered legislative measures which were not positively required by the international instrument in question (the World Heritage Convention) but which were preconditions for its application and were left to the judgment of States Parties (in that case the protection of potential heritage areas pending identification and an inquiry to facilitate identification). Clearly, there is no explicit obligation under the Discrimination (Employment and Occupation) Convention to specify additional grounds of discrimination. But equally clearly, to do so would be to implement Article 1(b)of the Convention and further its objects in the same way that the law at issue in Richardson was found to further the objects of the World Heritage Convention. 13. Article 3. 14. Article 5: ' 1. Special measures of protection or assistance provided for in other Conventions or Recommendations adopted by the International Labour Conference shall not be deemed to be discrimination. 2. Any Member may, after consultation with representative employers' and workers' organisations, where such exist, determine that other special measures designed to meet the particular requirements of persons who, for reasons such as sex, age, disablement, family responsibilities or social or cultural status, are generally recognised to require special protection or assistance, shall not be deemed to be discrimination.' 15. The term 'disabled person' is used here (rather than the preferable term 'person with a disability') because it is the phrase used in the Declaration. 16. Principle 1.4. 17. Australia signed the Convention on 22 August 1990 and ratified it on 17 December 1990. 18. Parties to the Convention (including Australia) are obliged, under Article 4, to 'undertake all appropriate legislative, administrative and other measures for the implementation of the rights recognised in the present Convention'. 19. Article 1. Page 36 Mental Illness Inquiry 20. Article 2. 'Disability' was included in the Convention at the suggestion of the Australian Human Rights Commissioner. 21. This is relevant to evidence regarding women experiencing post-natal depression. See Chapter 19. 22. Article 2.1. 23. Ratified by Australia on 10 December 1975. 24. Articles 5 and 6. 25. Article 11. 26. Article 12. 27. Article 13. 28. Article 5. 29. Article 12. 30. This Principle was inserted at the request of the Australian Human Rights Commissioner 31. Comparable, for example, to the Standard Minimum Rules on the Treatment of Prisoners. Human Rights and Equal Opportunity Commission Page 37 Chapter 3 DEFINITIONS AND CONCEPTIONS OF MENTAL ILLNESS Introduction What mainstream Australian society tends to refer to as 'mental illness' in the last decade of the 20th century has not always been, and is not universally, regarded as a medical matter. Similarly, our tendency to distinguish between mental, physical and spiritual concerns is not, and has not always been, shared by other societies. This chapter briefly traces some of the major historical trends in western society which have influenced our modern perceptions and practices and considers several cross-cultural differences of approach to the symptoms, behaviour or states of being that we now call 'mental illness'. Legal definitions of mental illness from various Australian jurisdictions are also considered — together with differing medical definitions and conceptions. Changing Views of Mental Illness In Ancient Greek medical science there was a level of understanding that abnormalities of the mind arose from natural causes in exactly the same way as other forms of disease. Supernatural explanations for mental abnormalities were, however, also common in the early Greek and Roman societies from which western culture developed. Literature available from the Middle Ages in Europe indicates that with the spread of Christianity natural causes were lost sight of and madness was seen as a manifestation of possession by the devil or other evil spirits, heresy, or some other form of immorality. This theological model involving exorcism rather than treatment was used to justify punitive measures against those displaying mental disturbance and systematic persecution of those labelled as witches. The distinctions between witchcraft, heresy and insanity were deliberately blurred by a number of 'scholars' and other influential figures. The Malleus Maleficarum, published in 1487 under the authority of a Papal Bull, defined those who saw visions as witches.1 A century later, emerging trends to regard such people as ill and to treat them with sympathy and medical care, were condemned by King James VI of Scotland (later James I of England) in a treatise entitled Daemonologie.2 Page 38 Mental Illness Inquiry The 'medical model' did not re-emerge quickly. The period generally known as the 'Enlightenment' in Europe produced some scholarly exploration of the nature and origins of mental disturbance.3 On the other hand, this period in Europe is referred to by Foucault as 'The Great Confinement,'4 in which there was large scale institutionalisation of those considered lunatic or insane together with 'rogues, vagabonds and other idle and disorderly persons.'5 The prevailing concept of madness moved from that of supernatural disorder to one of a natural condition akin to bestiality. Public concern and official action focussed on the need to restrain and confine 'dangerous lunatics' as one would wild animals. There is considerable literature and some legislation from the 18th century indicating that there was systematic neglect and abuse of insane persons subject to such confinement, and that this situation was beginning to be perceived as requiring redress.6 The acceptance of mental disorder as a 'natural' phenomenon led to the study of psychology and various approaches to clinical treatment of mental conditions. By the 19th century the science of psychiatry was well established, embracing many divergent views as to cause and treatment, but consensus on the basic conception of mental illness as a medical phenomenon. The first half of the 20th century saw the elaboration of psychoanalytic and other psychotherapeutic approaches to mental illness. Despite great differences in approach, psychiatrists established themselves as the recognised experts to deal with mental disorders, and a degree of standardisation in the classification and diagnosis of mental conditions began to develop. In the second half of the 20th century, the medical model was reinforced by advances in research on the physiology of mental illness. Refinements in genetics, biochemistry and neurophysiology, particularly in relation to the understanding of abnormalities in the transmission of electrical impulses in the brain, led to developments in the aetiology, therapy and management of mental illness. Modern anti-psychotic drugs have enabled maintenance on medication to largely replace long term institutionalisation of those with some of the most difficult mental disorders and have brought these conditions more clearly into line with physical illnesses. However, the increasing dominance of the medical model of mental illness has been challenged in recent decades by some sociologists and others critical of the role of psychiatrists. To these critics, what psychiatrists regard as symptoms of mental illness should be seen as behaviour deviating from social norms. This approach does not necessarily deny certain organic causes of mental disorder, but focusses attention on the social effects of disordered perception and behaviour. A small number of theorists and practitioners entirely reject the concept of an individual condition in favour of the notion of madness or Human Rights and Equal Opportunity Commission Page 39 disorder in social relationships, interactions or reactions. Those most critical of the medical model see the concept of mental illness as a 'conspiracy' between psychiatrists and family members or others hostile to the person subjected to the label. The sociological approach has also given rise to the educational model of mental illness or disorder. According to this view, the behaviour of a person who might be diagnosed as mentally ill is the result of defective or ineffective learning. Questions of causation are explained by looking at the developmental stages of social interaction. The most practical application of the educational model is in the area of rehabilitation, where learning or relearning patterns of normal behaviour is more important that a 'cure' per se. This approach has the advantage of involving less stigma than psychiatric treatment. It also clearly involves a continuing process, rather than engendering expectations of a transformation from illness to recovery. This difference is critical in relation to continuity and follow-up in psychiatric services. In this report no single model of mental illness or mental disorder is adopted. Indeed, the evidence placed before the Inquiry suggests a need to integrate and appropriately balance elements of much of the current thinking about mental illness as a disease process and as a social process. Legal Definitions of Mental Illness The problem of defining mental illness for legal purposes has been approached differently in the various States and Territories of Australia. In some cases, those responsible for drafting mental health legislation have not attempted a definition, leaving the matter in the first instance in the hands of medical practitioners who have the effective decision-making power under the legislation. Ultimately, in these jurisdictions, the courts can settle questions of definition, applying a combination of expert evidence and common law principles. Upon close examination, however, many legislative formulations are little more than token gestures — marked by circularity of reasoning and apparently designed to intrude to a minimal degree upon the territory of psychiatrists. The NSW Mental Health Act of 1990, however, contains a relatively comprehensive operational definition of mental illness, as well as definitions of 'mentally ill person' and 'mentally disordered person'. The NSW definition of mental illness is as follows: Page 40 Mental Illness Inquiry mental illness means a condition which seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms: (a) delusions; (b) hallucinations; (c) serious disorder of thought form; (d) a severe disturbance of mood; (e) sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a) to (d).7 The definition in the Act of a 'mentally ill person' is even more detailed, requiring not only that a person suffers from mental illness but also that there are, as a result, 'reasonable grounds for believing care, treatment, or control of the person is necessary' for the person's own protection from serious physical harm; or for the protection of others from serious physical harm. Alternatively, the person qualifies as a mentally ill person under the Act if he or she is suffering from a mental illness: characterised by the presence in the person of the symptom of severe disturbance of mood or the symptom of sustained or repeated irrational behaviour indicating the presence of that symptom and, owing to that illness, there are reasonable grounds for believing that care, treatment, or control of the person is necessary for the person's own protection from serious financial harm or serious damage to the person's reputation.8 Moreover, the Act provides an inclusive definition of 'damage to the person's reputation', specifying that damage to important personal relationships is sufficient. Under the Act a 'mentally disordered person' is one whose 'behaviour for the time being is so irrational to justify conclusion on reasonable grounds that temporary care, treatment or control of the person is necessary' for his or her own protection from serious physical harm or for the protection of others. The NSW Act, like legislation in several other States, contains a list of those criteria considered to be insufficient in themselves to identify a person as mentally ill or mentally disordered. These criteria are: (a) expression, refusal or failure to express a particular political opinion or belief; (b) expression, refusal or failure to express a particular religious opinion or belief; (c) expression, refusal or failure to express particular philosophy; (d) expression, refusal or failure to express particular sexual preference or sexual orientation; (e) engaging in or refusing to or failing to engage in a particular political activity; (f) engaging in or refusing to or failing to engage in a particular religious activity; (g) engaging in sexual promiscuity; (h) engaging in immoral conduct; (i) engaging in illegal conduct; Human Rights and Equal Opportunity Commission Page 41 (j) having a developmental disability of mind; (k) taking alcohol or any other drug; (1) engaging in antisocial behaviour.9 The Western Australian Mental Health Act of 1962 contains definitions of mental illness and mental disorder. Mental disorder is defined as 'any illness or intellectual defect that substantially impairs mental health.'10 Mental illness is defined as 'a psychiatric or other illness that substantially impairs mental health.'11 The legislation covers both people with mental illness and people with intellectual disability. Under the provisions for voluntary and involuntary admission, a person must be considered to be suffering from a 'mental disorder requiring treatment under the Act.'12 (The details of admission criteria are discussed in Chapter 8 of this report.) There is no provision in the WA legislation excluding political, religious or other beliefs or activities as the basis for determinations as to mental illness or mental disorder. The Tasmanian Mental Health Act of 1963 also covers those with intellectual disability as well as those with mental illness. The Act does not contain a definition of mental illness but does define 'mental disorder' as 'mental illness, arrested or incomplete development of mind, psychopathic disorder, and any other disorder or disability of mind.'13 The Act does not contain definitions of psychopathic disorder or any of the other terms used in the definition. Under the Tasmanian legislation, the only considerations which the Act excludes as sole criteria for determinations relating to mental disorder are 'promiscuity or other immoral conduct.'14 The Australian Capital Territory Mental Health Act of 1983 has no definition of mental illness, but defines 'mental dysfunction' as 'a disturbance or defect, to a severely disabling degree, of perceptual interpretation, comprehension, reasoning, learning, judgement, memory, motivation or emotion.'15 Mental dysfunction is the basis for involuntary detention and for the making of treatment orders under the Act. The ACT legislation states that a person shall not be treated as suffering from mental dysfunction by reason only of expressing or engaging in particular political, religious, lawful (or unlawful), moral (or immoral) opinions or activities. The South Australian Mental Health Act of 1977, which covers people with intellectual disability as well as those with mental illness, defines mental illness simply as 'any illness or disorder of the mind.'16 There is no legislative provision prohibiting any particular form of opinion, belief or conduct from being treated as sufficient to determine the presence of mental illness or disorder of the mind. Page 42 Mental Illness Inquiry Neither the Victorian Mental Health Act of 1986, the Queensland Mental Health Services Act 1974 to 1991, nor the Northern Territory Mental Health Act of 1990 contain definitions of mental illness or of any equivalent term. However, all three statutes contain provisions preventing particular forms of political, religious or moral opinions or engaging in particular political, religious or moral (or immoral) activities, from sufficing to identify a person as mentally ill. The following rationale for omitting a statutory definition of mental illness was provided by the Queensland Minister for Health in his second reading speech: The question of mental illness is not decided on whether a person can be given certain diagnostic labels. Mental illness can refer to any degree of mental or emotional defect or aberration, whether from physical or psychological causes. Whether provisions of the Act should apply depends on a medical assessment of the nature and the degree of the disorder, and its effect on the person and on other people.17 The Victorian rationale appears to have been the same — the legislators again deferring to the medical practitioners. It should also be noted that the doctors' discretion has not been significantly limited by decisions of the courts. In those rare cases in which the definition of mental illness reaches court, judges frequently display reluctance, resorting to generalised tests in lay terms such as 'what would the ordinary sensible person have said about the patient's condition?'18 — or, alternatively, relying upon expert medical opinion. A notable exception to the general judicial reluctance to subject the definition of mental illness to legal analysis may be found in the many decisions of Mr Justice Powell of the NSW Supreme Court's Protective Division, prior to the passage of the 1990 mental health legislation. The NSW Mental Health Act of 1958 contained no definition of mental illness and the definition contained in the NSW Mental Health Act of 1983 was never proclaimed. Mr Justice Powell was repeatedly called upon to determine the limits of the term mental illness as used in the 1958 Mental Health Act. In 1982 His Honour expressed the view that the term 'mental illness' had 'not been the subject of definitive judicial exposition' but that its use in the 1958 legislation was a reference 'to a mental illness in the classic sense of being disease of the mind.'19 His Honour went on to decide that senile dementia was not a mental illness for the purposes of the NSW Mental Health Act 1958. After examining common law definitions involving concepts such as 'unsound mind' and 'depravity of reason or want of it', His Honour pointed to the distinction to be drawn between a mental infirmity arising from disease of age which could be 'attended by confusion and disorientation reflecting loss of memory' and a condition 'attended by hallucinations or delusions such as are not uncommon in schizophrenia, or by Human Rights and Equal Opportunity Commission Page 43 strong and irrational antipathies or fears such as are not uncommon in the case of psychosis.'20 This approach anticipates that taken in the 1990 legislation in NSW, using characteristic symptomatology to define mental illness. In subsequent unreported decisions, the judge also excluded alcoholism21 and anorexia nervosa22 from the scope of mental illness for the purposes of the Act. The absence of legislative definition of mental illness in Victoria has produced a significant amount of analysis by the Victorian Mental Health Review Board in its determinations, excerpts from which are published in the Board's Annual Report. The Victorian Mental Health Act 1986 requires the Board to consider whether a person 'appears to be mentally ill'23 and the approach taken by the Board, as set out in the 1991 Annual Report, also focusses on symptomatology: a person appears to be suffering from a mental illness if he/she has recently exhibited symptoms which indicate a disturbance of mental functioning which constitutes an identifiable syndrome or, if it would not be possible to ascribe the symptoms of such a disturbance of mental functioning to a classifiable syndrome, they are symptoms of a disturbance of thought, mood, volition, perception, orientation or memory which are present to such a degree as to be considered pathological.24 The increasing use of operational definitions in the legal context may indicate that a constructive convergence of legal and medical definitions of mental illness will develop, or may already be developing, from the increasing collaboration of lawyers and psychiatrists in the context of specialist review bodies. Medical Conceptions of Mental Illness To the psychiatrist, the distinguishing feature of mental illness is the presence of symptoms indicating disturbance in mental functioning such as thought, perception, memory or judgement. Psychiatric diagnosis involves identifying clusters of signs and symptoms, usually according to one or another of the standard psychiatric diagnostic protocols. One of the earliest of these which is still, in revised form, in widespread official use is the ICD or International Classification of Disorders, first developed at the beginning of the century and now in its ninth revision. The ICD, which is primarily a statistical classification system, classifies mental disorders as psychoses, neurotic disorders; personality disorders or other non-psychotic disorders; and mental retardation as follows: Page 44 Mental Illness Inquiry Psychoses Organic Psychotic Conditions: Senile and presenile organic psychotic conditions; Alcoholic psychoses; Drug psychoses; Transient organic psychotic conditions; Other organic psychotic conditions (chronic). Other Psychoses Schizophrenic psychoses; Affective psychoses; Paranoid states; Other non-organic psychoses; Psychoses with origins specific to childhood. Neurotic, Personality and Other Non-Psychotic Mental Disorders Neurotic disorders, including anxiety state, hysteria, phobic state, obsessive- compulsive disorder, neurotic depression, and other conditions; Personality disorders; Sexual deviations and disorders; Alcohol dependence syndrome; Drug dependence; Non-dependent use of drugs; Physiological malfunction arising from mental factors; Special symptoms or syndromes including stammering, anorexia nervosa, tics, sleep disorders, etc; Acute reaction to stress; Adjustment reaction; Specific non-psychotic mental disorders due to organic brain damage. Mental Retardation Mild mental retardation; Other specific mental retardation; Unspecified mental retardation. A more comprehensive and widely accepted psychiatric classification system is that developed by the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders. The most recent version of this manual, DSM-III-R,25 was last revised in 1987. This system involves rigorous application of operational criteria and is designed to produce a high level of consistency in psychiatric diagnosis. The current manual arranges over 300 mental disorders in diagnostic hierarchies (from the general to the more specific categorisation) with descriptions of the essential and the associated features for each one. The manual also includes discussion of 'differential diagnosis' (those other conditions to be considered and distinguished in arriving at a particular Human Rights and Equal Opportunity Commission Page 45 diagnosis); as well as a discussion of the likely course of a condition, the degree of impairment it may produce and complications that may arise. The Introduction to DSM-III-R contains a definition of mental disorder: In DSM-III-R each of the mental disorders is conceptualised as a clinically significant behavioural or psychological syndrome or pattern that occurs in a person and that is associated with present distress (a painful symptom) or disability (impairment in one or more important areas of functioning) or with a significantly increased risk of suffering, death, pain, disability, or an important loss of freedom. In addition, this syndrome or pattern must not be merely an expectable response to a particular event, eg the death of a loved one. Whatever its original cause, it must currently be considered a anifestation of a behavioural, psychological, or biological dysfunction in the person. Neither deviant behaviour, eg political, religious, or sexual, nor conflicts that are primarily between the individual and society are mental disorders unless the deviance or conflict is a symptom of a dysfunction in the person... There is no assumption that each mental disorder is a discrete entity with sharp boundaries (discontinuity) between it and other mental disorders, or between it and no mental disorder.26 Both the ICD and the DSM systems are constantly under review. The aim is to ensure, as far as possible, coverage of the full range of psychiatric disorders, and to simultaneously refine the delineation of syndromes into clear, clinical entities. Clinical rigour is the psychiatrist's response to criticism by those who challenge the validity of psychiatric diagnosis or the concept of mental illness itself. Cross Cultural Conceptions Recognition of the multicultural nature of Australian society requires an appreciation that people from different cultures do not simply speak different languages. They may also have very different ways of viewing the world; different systems of belief; and different values relating to certain forms of behaviour, social relationships and spiritual or religious obligations and relations. Distinctions drawn in contemporary western culture between such things as sickness and health or social and spiritual relations may be inappropriate in another cultural context. The concept of 'mental illness', in particular, may have no real equivalent, for example, in traditional Aboriginal culture. Traditional Aboriginal culture, like many others, does not conceive of illness, mental or otherwise, as a distinct medical entity. Rather, there is a more holistic conception of life in which individual wellbeing is intimately associated with collective wellbeing. Both individual and collective wellbeing involve harmony in social relationships, in spiritual relationships, and in the fundamental relationship with the land and other aspects of the physical environment. In Page 46 Mental Illness Inquiry these terms, diagnosis of an individual illness is meaningless, or even counterproductive if it isolates the individual from these relationships.27 Recognition of this conception of wellbeing is fundamentally important in assessing the impact of policies and practices of family separation on members of Aboriginal communities, and on those separated from them.28 (See also Chapter 23 — Aboriginal and Torres Strait Islander People.) Other cultures have a variety of ways of conceptualising the phenomena that we label 'mental illness', similar in range and content to the differing approaches adopted by western society over time, as outlined above.29 For example, in the Yoruba culture in Nigeria, there are clinical categories of psychotic illness that closely parallel those of current western psychiatry.30 Among the Baganda of Uganda, there are a number of diseases associated with the heart, which is seen as both the seat of emotions and the control centre for thought and other cognitive processes.31 The Baganda also have concepts of disease associated with other organs, such as the brain and stomach, which can be roughly equated to entities labelled as mental illnesses by western psychiatry.32 There are some conditions that the Baganda consider to be caused by physical means such as poisoning; some that are the result of spirit possession or witchcraft; and others that are the work of gods, either punishing the person for transgression or acting capriciously.33 Although no systematic studies of these issues are available for the diverse range of cultures now represented in Australian society, evidence presented to the Inquiry suggested a significant spectrum of conceptions clearly exists.34 In addition to differing traditional cultural concepts and values, there may be important differences in the meanings attaching to 'mental disorder' and 'mental illness' arising from the cultural or political environment from which a person may have emigrated or in which he or she may continue to live outside middle class, Anglo-Australian society. Conceptions and connotations of 'mental illness' and 'mental disorder' are significantly affected by individuals' experience and expectations of the relative roles of the citizen and the State; the psychiatrist and the State; and doctor and patient. Many people who have recently migrated to Australia — particularly those from countries with repressive governments — are unclear about the ways in which Australian culture and society differ from those of their homelands.35 These differences do exist and are sometimes significant in a mental health context (a point explored in greater detail in Chapter 24 — People from Non-English Speaking Backgrounds). Human Rights and Equal Opportunity Commission Page 47 1. See H P Greenberg, 'Historical Perspectives', in P Beumont and R Hampshire (eds), Textbook of Psychiatry, Blackwell Scientific Publications, Sydney 1989, pl9. 2. id. 3. For example, by Hobbes; Locke; Robert James (The Medical Dictionary, 1743); Richard Blackmore (Treatise of the Spleen and its Vapours, or Hypochondriacal and Hysterical Affections, 1725); William Cullen and many others, discussed in Greenberg, op cit, and in M Foucault, Madness and Civilisation, Tavistock, London 1967, passim. 4. Foucault, op cit. 5. From the title of the first English statute ((1744) 17 Geo II c5) to provide for detention on the ground of lunacy. See Powell J, 'Mental Health Law: The Development of the Law and Changes in its Context' in Madness in the Law, seminar papers published by UNSW Law Faculty, 1990. 6. See discussions in Powell, op cit; in Greenberg, op cit; and in Foucault, op cit. 7. See Schedule 1 (Dictionary of Terms) to the NSW Mental Health Act 1990. 8. s.9 NSW Mental Health Act. 9. s. 11 NSW Mental Health Act. 10. s.5 WA Mental Health Act. 11. id. 12. ss.27, 28 and 29 WA Mental Health Act. 13. s.4 Tasmanian Mental Health Act. 14. id. 15. s.4 ACT Mental Health Act. 16. s.5 SA Mental Health Act. (See, however, Chapter 29, relating to legislative proposals currently under consideration in South Australia and Western Australia.) 17. Queensland Parliamentary Debates 1974, v263, p2205. 18. See judgement of Lawton LJ in W v L (1974) I QB. 19. RAP v AEP and anor [1982] 2 NSWLR 508, p510. 20. id. 21. 1986 NSW Supreme Court, unreported. 22. id. 23. s.8 Victorian Mental Health Act. 24. Victorian Mental Health Review Board, Annual Report 1991-92, p23. 25. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders: DSM-111-R, Third Edition-Revised, Washington 1987. 26. ibid, pxxii. 27. Prof Joseph Reser, Department of Psychology, James Cook University. Oral evidence, Townsville 13.8.91, pl277. 28. Carol Kendall, Coordinator and Stan Bowden, member, LINK-UP (NSW) Aboriginal Corporation. Oral evidence, Sydney 21.6.91, pp593-602. Also see Dr Ernest Hunter, Sydney 21.6.91, pp540-541. These issues are considered in detail in Chapter 23 — Aboriginal and Torres Strait Islander People with Mental Illness. Page 48 Mental Illness Inquiry 29. For example, a variety of ways of approaching the phenomena identified by Western psychiatrists as schizophrenia has been identified by R Warner, Recovery from Schizophrenia: Psychiatry and Political Economy, Routledge and Kegan Paul, London 1985. 30. See discussion in R Littlewood and M Lipsedge, Aliens and Alienists: Ethnic Minorities and Psychiatry, 2nd edition, Unwin and Hyman, London 1989. 31. J Orley, Culture and Mental Illness, East African Publishing House, Nairobi 1970. 32. id. 33. id. 34. Dr Elsa Bernardi, oral evidence, Sydney 17.6.91, pl09; and Reser, op cit, pl274. 35. Margaret Cunningham and Rise Becker, oral evidence, Sydney 20.6.91, p438; and Prof Derek Silove, oral evidence, Sydney 21.6.91, pp573-574. See Chapter 24, People from Non-English Speaking Backgrounds, for further discussion of these issues. Human Rights and Equal Opportunity Commission Page 49 Chapter 4 THE LEGAL FRAMEWORK Most of our legislation is directed to people who are in hospitals. We have mental health acts, official visitors, mental health review tribunals. These are for people in hospital but for the people outside there isn't such protection.' This chapter provides an overview of current Commonwealth, State and Territory legislation governing or bearing upon the provision of mental health services in Australia. The Commonwealth laws which provide for funding in various forms and which set certain parameters for mental health services are dealt with first. This is followed by an examination of the legislative provisions in each State and Territory that regulate the infrastructure of mental health services and related functions such as guardianship. The status of antidiscrimination legislation in each jurisdiction in relation to mental illness is also addressed. The Inquiry was informed by several State and Territory Governments that mental health legislation is 'under review'. Current proposals for legislative change are examined in Chapter 29. Commonwealth Legislation The fact that psychiatric disability is an episodic thing means that someone is disabled one minute, ill the next.2 Disability Services Act [The addition of psychiatric disability to the definition of the target group for the disability services legislation] is not going to add a whole lot to the cost of this legislation because, quite simply, and I make no bones about it, I will continue to administer the legislation the way we have administered it in the past. The Disability Services Act 1986 covers persons with a disability that is attributable to a psychiatric impairment, provided the disability is 'permanent or likely to be permanent'4 and results in 'a substantially reduced capacity of the person for communication, learning or mobility; and the need for ongoing services.'5 The Act replaces previous legislation (the Handicapped Persons Assistance Act 1974 and Part III of the Social Security Act 1947) 'with provisions that are Page 50 Mental Illness Inquiry more flexible and more responsive to the needs and aspirations of persons with disabilities'. It is the stated intention of the Act that people with disabilities receive 'the services necessary to enable them to achieve their maximum potential as members in the community'. The other statutory objectives include: furthering the integration of persons with disabilities; complementing the services generally available to persons in the community; promoting a positive image of persons with disabilities and enhancing their self esteem; and ensuring that consumer outcomes are taken into account when granting financial assistance for the provision of services. The Act empowers the Minister to formulate principles and objectives to be advanced and guidelines to be complied with in the Act's administration. The Minister is also given the power to approve a class of services as eligible for funding if satisfied that it would comply with Ministerial guidelines. The types of services that may be approved include: accommodation support; advocacy; employment training and placement; supported employment; independent living training; respite care; and services to facilitate access to information by people with disabilities and their families. Financial assistance to a State or to an organisation is granted under the Act for the provision of 'eligible [ie approved] services' and also for services that were funded under the previous legislation — even if these services do not comply with the statutory objects and Ministerial objectives and principles of the Disability Services Act. The Minister is able to impose conditions on funding, including requirements as to funding by the State; and requirements for consumer outcomes in relation to the service to be provided. Compliance with the terms and conditions of grants must be reviewed at intervals of no more than five years. Under the Disability Services Act, provision is also made for financial assistance for research or development activities that would further the principles and objectives and comply with the Ministerial guidelines. The Commonwealth is also able to provide rehabilitation services which meet these criteria under the Disability Services Act. The 'target group' for such services includes people with a disability attributable to a psychiatric impairment that results in 'a substantially reduced capacity...to obtain or retain unsupported paid employment or to live independently.' Human Rights and Equal Opportunity Commission Page 51 Aged or Disabled Persons Care Act 1954 For the purposes of the Aged or Disabled Persons Care Act 1954, (as amended), a 'disabled person' is an individual who is either permanently blind or permanently incapacitated and unable to work. The Act enables the Commonwealth to make capital and recurrent grants to approved hostels as well as capital grants to nursing homes approved under the National Health Act 1953. The stated purposes of this Act are to encourage and assist the provision of: (i) suitable homes for those eligible to 'reside in conditions approaching as near as practicable normal domestic life'; and (ii) accommodation where 'care services and respite care services may be provided for eligible persons'. The term 'eligible person' is defined in the Act as an aged or disabled person who is assessed as requiring hostel care services or both hostel care and personal care services. A person wanting only hostel care services is eligible without assessment but a person wanting both hostel care and personal care services must be assessed for eligibility. Assessment for eligibility is made by the Hostel Care Assessment Authority, in accordance with criteria contained in regulations made under the Act. According to these criteria, an applicant is not suitable for hostel care if the person's cognitive or affective functioning means that he or she has major problems coping in the community and suffers from a mental condition requiring a level of care beyond that defined as personal care. Personal care is taken to include the provision of long term emotional support and direct supervision for any eligible person diagnosed as suffering from dementia or from a functional psychotic condition that requires long term medication. A person assessed as eligible to receive hostel care may still be refused admission by the operator of a hostel. The Aged or Disabled Persons Care Act provides for agreements to be made between the Minister and an organisation which receives funding to operate a hostel. Under such agreements, the conditions of the grant may include giving priority access to specific classes of persons. Certain hostels specialise in caring for people suffering from dementia. However, the definition of hostel under the Act specifically excludes 'an institution carried on exclusively or primarily for the treatment of mentally ill or mentally defective persons, being an institution Page 52 Mental Illness Inquiry conducted by, or in receipt of a grant for maintenance from, a State.' This definition should not prevent the funding of hostels specialising in services for the mentally ill, provided the hostel was neither conducted by nor receiving a maintenance grant from a State Government. The fact that the Commonwealth Government does not appear to have funded hostels specialising in care for people with mental illness appears to reflect the traditional view that mental illness services are the responsibility of State Governments — rather than any legislative limitation. The Aged or Disabled Persons Care Act provides for formulation by the Minister and approval by Parliament of a common form of agreement between proprietors of hostels and residents. The agreement covers such matters as fees and charges; services to be provided to residents; residents' participation in decision-making in relation to standards of care and quality of life; and resolution of disputes between residents and hostel operators. The agreement must also be consistent with the Charter of Residents' Rights and Responsibilities which is set out in a Schedule to the Act. This Charter, in its preamble, states the general rights and freedoms applicable to every person in the community, pointing out that these are not diminished when a person moves into a hostel 'regardless of his or her mental frailty or ability to exercise or fully appreciate his or her rights.' The Charter enumerates a range of rights of particular relevance to residents of hostels, including quality care which is appropriate to individual needs; full information about one's own state of health and about available treatments; treatment with dignity and respect and without exploitation, abuse or neglect; personal privacy; continuation of one's cultural or religious practices and retention of the language of choice; freedom of speech; access to services and activities which are generally available in the community and access to advocates and other avenues of redress without reprisal. The responsibilities of residents are also listed in the Charter, including respect for the rights and needs of others in the hostel; responsibility for one's own wellbeing to the fullest extent possible; and the responsibility to inform one's medical practitioner as far as possible about relevant medical history and current health. National Health Act 1953 The National Health Act 1953 (as amended) provides for the payment of various pharmaceutical, sickness and hospital benefits, including the domiciliary nursing care benefit. It also provides for the recurrent funding of nursing homes, subsuming this function of the Nursing Homes Assistance Act of 1974 which related to private nursing homes. The National Health Act covers Human Rights and Equal Opportunity Commission Page 53 government and non-government nursing homes and those for aged persons as well as those for persons with disabilities. In practice, however, the funding of nursing homes for persons with disabilities is not given the same emphasis as funding for the care of aged persons. Under the National Health Act the Minister is empowered to approve both the premises and the operators of nursing homes. The Minister may formulate principles to be complied with in the exercise of these powers of approval. There are also conditions set by the Act on the Minister's approval of a nursing home. These may include special admission requirements or the designation of special purposes for particular nursing homes. Other conditions require agreements between residents and nursing home proprietors similar to those applying to hostels under the Aged or Disabled Persons Care Act. The National Health Act also contains a Charter of Residents' Rights and Responsibilities in Approved Nursing Homes which is phrased in similar terms to the charter for hostels. The conditions imposed on the Ministerial approval of nursing home premises include a requirement that the proprietor must permit a designated community visitor to enter the nursing home to meet with residents and observe the care provided. The Act also provides for authorised inspection of premises and of records kept by the proprietors of nursing homes. The National Health Act authorises the Minister to determine standards to be observed in the provision of care in approved nursing homes. The Minister may periodically publish statements concerning levels of compliance with these standards. Failure to comply may result in suspension of recurrent funding to nursing homes. Funding for nursing homes under this Act is calculated by reference to the number of days for which care is provided to patients and the level of care provided. The Act provides for classification of patients according to the extent of their personal care needs, measured in terms of criteria known as the Resident Classification Instrument (RCI). Since the Inquiry began, changes have been made to this index to give greater consideration to non-physical factors. However, the RCI is still weighted in terms of the care required by physically disabled patients rather than those whose symptoms relate to cognitive or affective functioning.6 The National Health Act also makes provision for payment of the Domiciliary Nursing Care Benefit (DNCB) to those providing care to a patient at home. The patient must have an infirmity, illness, disease, incapacity or disability of a kind that would meet the criteria for admission to an approved nursing home Page 54 Mental Illness Inquiry under the Act. The carer must be a spouse, parent, child, sibling or other close relative of the patient or a person approved as a carer. The rate at which DNCB is paid is $52 per fortnight. An important restriction on payment of the DNCB is that both the carer and the patient must live in the same home. Home and Community Care Act 1985 The Home and Community Care Act 1985 is brief enabling legislation which makes financial assistance available from the Commonwealth to the States through an agreement on the provision of home and community care services. The form of this agreement is contained in a Schedule to the Act. The agreement establishes a Commonwealth-State Home and Community Care (HACC) program designed to promote provision of a comprehensive and integrated range of home and community care, maintenance and support services, either directly to people within the target population or through their carers. Other objectives are 'to ensure access to home and community care among all groups within the target population, including migrants, Aborigines, persons suffering from brain failure and financially disadvantaged persons; [and] to ensure that, within available resources, priority is directed to persons within the target population most in need of home and community care.' The 'target population' is defined in the Schedule as follows: (a) persons living in the community who, in the absence of basic maintenance and support services provided or to be provided within the scope of the program, are at the risk of premature or inappropriate long term residential care, including i. frail or at risk aged persons, being elderly persons with moderate or severe disabilities; ii. younger disabled persons, being persons with moderate or severe disabilities; iii. such other classes of persons as are agreed upon by the Commonwealth Minister and State Minister; and (b) the carers of those persons.'7 HACC services include home help, personal care, home maintenance, community respite care, community nursing and paramedical services, education and training for service providers and users, and the provision of information and transport. Services and facilities that are eligible for funding may be provided by State or local government; by a community organisation; or by two or more of these acting jointly. Projects formerly funded by the Commonwealth may also be eligible where no alternative funding arrangements are available. Human Rights and Equal Opportunity Commission Page 55 The agreement allows the Commonwealth Government and the State Minister to approve jointly, and from time to time vary, certain aspects of the management and administration of the program including priorities and sub-program guidelines. Health Insurance Act 1973 The Medicare system does, however, [militate] against quality service by a general practitioner because of the low amount of benefit paid in respect of long consultations which are so often essential.8 The Health Insurance Act 1973 provides for payment of Medicare benefits for certain medical and hospital services and for provision of grants from the Commonwealth to organisations approved by the Minister for health services or health service development projects. The 'professional' medical services which attract Medicare benefits are itemised in Schedules to the Act.9 The Schedules only include services provided by medical practitioners and certain optometrists. Another significant feature of this Act enables the Commonwealth to enter into agreements with States for the provision of hospital and other health services. Social Security Act 1991 The cyclical nature of psychotic episodes means that people move into and out of programs. Many services are based on a model of linear progression and don't cope with missed appointments or repeated dropping out.10 The new Social Security Act, which became operative in July 1991, was substantially amended from the date of its commencement by the Social Security (Job Search and Newstart) Amendments Act 1991. It was further amended by the Social Security (Disability Support) Amendments Act 1991 which came into force in November 1991. The latter replaced the old Invalid Pension and Sickness Benefit with the Disability Support Pension and Sickness Allowance. The Job Search and Newstart Amendment Act replaces unemployment benefits with a Job Search Allowance for people unemployed for less than 12 months and a Newstart Allowance for people registered as unemployed for more than 12 months. Eligibility for either the Job Search or Newstart Allowances depends on the claimant satisfying an 'activity test'. This requires a person to be either actively seeking to undertake work or taking 'reasonable steps' to undertake a particular form of work considered suitable.11 Alternatively the individual may be Page 56 Mental Illness Inquiry required to undertake a course of vocational training; participate in a labour market program; or participate in another course. In the case of a person living in an area with no locally accessible labour market or vocational training course or labour market programs, participation in an activity suggested by the person and approved by the CES may be required. Job Search Allowance is not payable to an individual who has not provided a tax file number, or who fails to attend or contact an office of the Department of Social Security or the CES when required, or to provide any information required by the Department. There are a number of other circumstances in which the Job Search Allowance is not payable. Many of these are of potential relevance to people with mental illness, including unemployment due to a voluntary act; unemployment due to misconduct; and failure to continue registration with the CES. For a person unemployed for more than 12 months, eligibility for Newstart Allowance requires entry into a Newstart Activity Agreement with the CES and also requires the person to take reasonable steps to comply with the terms of this agreement. Under the terms of a Newstart Activity Agreement, the individual must undertake one or more of the following activities approved by the Secretary: (a) A Job Search; (b) A vocational training course; (c) Training that would help in searching for work; (d) Paid work experience; (e) Measures designed to eliminate or reduce any disadvantage the person has in the labour market, not being a measure compelling the person to work in return for payment of Newstart Allowance; (f) Participation in a labour market program conducted by the CES; (g) An activity proposed by the person such as unpaid voluntary work. The Newstart Allowance may be refused or suspended in a variety of circumstances — including those referred to above in relation to the Job Search Allowance. In addition, a person may be denied the allowance for failure to enter into a Newstart Activity Agreement or failure to comply with the terms of such an agreement. The 'Disability Reform Package', as the new Disability Support Pension and Sickness Allowance provisions are known, also has an emphasis on rehabilitation and makes substantial changes to the criteria for eligibility. In order to qualify for a Disability Support Pension a person must have 'a physical, intellectual or psychiatric impairment' which is assessed at 20 percent or more - together with a continuing inability to work. Impairment for the purposes of Human Rights and Equal Opportunity Commission Page 57 the Disability Support Pension is measured in terms of Tables contained in Schedule 2 to the Social Security (Disability and Sickness Support) Amendment Act 1991. The Table relating to psychiatric impairment contains the following criteria for impairment at the 20 percent level: any serious symptomatology or impairment in functioning that most clinicians would think obviously requires treatment or attention, eg suicidal occupation, severe obsessional rituals, frequent severe anxiety attacks, serious antisocial behaviour. The only guidance available from the Table concerning the required frequency of symptoms is by reference to criteria for other levels of impairment, particularly those less than 20 percent. The criteria for impairment at the 15 percent level are as follows: Moderate and regular symptoms or generally functioning with some difficulty (eg as manifest by short periods of absence from work, noticeable reduction in social contacts or recreational activities, or the beginnings of family conflict. Likely to have received psychiatric treatment which has stabilised their condition). By extrapolation, therefore, 20 percent psychiatric impairment requires more than moderate to regular symptoms and more than short periods of absence from work. Guidelines issued to officers of the Department responsible for applying these criteria indicate that a report from a treating psychiatrist is required. The Guidelines also provide brief notes on the 'key features' of schizophrenia — but not on other mental illnesses. The test of 'continuing inability to work' requires that the person's impairment is, of itself, sufficient to prevent the person from doing his or her 'usual work', or work for which the person is currently skilled, for at least two years. In addition, the impairment must be sufficient either to prevent the person from undertaking retraining for two years or to prevent such retraining equipping the person within two years with new skills to undertake work. Work is defined in the legislation as employment for more than 30 hours per week for award wages or above, available anywhere in Australia — not necessarily in the labour market locally accessible to the person concerned. This definition is intended to encourage those receiving Disability Support Pension to engage in part-time work. The combined effect of the definition of impairment by reference to criteria contained in the impairment tables and the express exclusion in the Act of the relevance of availability of work, is to confine the concept of inability to work to medical considerations. The Minister's Second Reading Speech indicates the Government intended to replace Page 58 Mental Illness Inquiry the various socioeconomic and labour market factors relevant to eligibility for invalid pensions, and to focus attention on impairment defined exclusively in medical terms. Disability Panels, consisting of specialised staff from the Department of Social Security, the Department of Employment, Education and Training (DEET) and the Commonwealth Rehabilitation Service, assess those receiving Disability Support Pensions and Sickness Allowances who are identified as likely to gain assistance from education, training or rehabilitation.12 A person otherwise qualified for a Disability Support Pension may have the payment deferred in a number of circumstances specified under the Act. Some of these arise from procedural requirements, such as providing the Department with a tax file number or nominating a bank, credit union or building society account into which the pension is to be paid. Deferment may also result if the person fails to comply with a requirement to contact the Department, attend an interview, complete a questionnaire or attend a medical, psychiatric or psychological examination. A person receiving a Disability Support Pension may also be requested to undertake a program of assistance or rehabilitation. In the Bill as drafted and passed by the House of Representatives, this power was mandatory and it was intended that failure to take reasonable steps to undertake a program of assistance or Jobsearch activity would result in deferment of pension. Amendments made in response to representations from community groups removed the power to compel such participation by a threat of deferment. The element of compulsion remains in relation to compliance with the requirements to attend an interview or an examination, complete a questionnaire or provide a medical report. Eligibility for Sickness Allowance requires that a person be incapacitated for work because of sickness or accident; that this incapacity be 'caused wholly or virtually wholly by a medical condition arising from the sickness or accident'; and that the incapacity be temporary. In addition, individuals (other than those already in receipt of sickness benefit under the old provisions) must satisfy the Government either that they have suffered or are likely to suffer loss of income because of their incapacity, or that they would be likely to qualify for a Job Search or Newstart Allowance if able to work. Work is defined, for those still under a contract of employment, as that which they are contracted to perform and, in any other case, work of a kind that a person could reasonably be expected to do. The latter includes part-time or casual work of eight or more hours a week at award wages or above. Human Rights and Equal Opportunity Commission Page 59 Sickness Allowance is intended to be a short term measure and, in the first instance, is payable for a maximum of 13 weeks. This period may only be extended if the recipient provides a medical certificate containing specific information as to diagnosis, prognosis and whether the person is likely to benefit from treatment or a rehabilitation program. The Act provides that a person ceases to be eligible for Sickness Allowance after 52 weeks — unless a determination is made to extend the Allowance on the basis of considerations set out in the Act. These include the case of a person whose incapacity is caused 'by a chronically relapsing medical condition.' (This basis for extension did not appear in the original Bill but was added by amendments introduced in the Senate after expressions of community concern.) Similarly, the Act contains a prohibition on eligibility for Sickness Allowance for two years from the time when the person ceased to be eligible. Here too there is an exception (also added by amendment to the original Bill) for medical conditions that are 'chronically relapsing.' Deferment of Sickness Allowance is provided for in similar circumstances to those applicable to Disability Support Pensions. Disability Discrimination Act In October 1992 legislation was passed by Federal Parliament prohibiting direct and indirect discrimination on the ground of disability, including physical, sensory, intellectual and psychiatric impairment. Harassment on the ground of disability is made unlawful. The Disability Discrimination Act complements legislation already existing in some States, in that it prohibits discrimination throughout Australia in employment, provision of goods and services (including transport and education services), accommodation, membership of clubs and the administration of Commonwealth programs. The legislation includes a requirement to make 'reasonable accommodation' for an individual with disabilities — balanced by the proviso that such accommodation is not required if it would cause 'unjustifiable hardship.' The recently appointed Disability Discrimination Commissioner, operating as a member of the Human Rights and Equal Opportunity Commission, administers this legislation. Page 60 Mental Illness Inquiry New South Wales The NSW Mental Health Act of 1990 is the most recent State legislation in Australia and the most comprehensive. It forms a package with the Mental Health (Criminal Procedure) Act 1990 and the Guardianship Act 1987. The Mental Health Act contains a detailed definition of mental illness, as well as definitions of 'mentally ill person' and 'mentally disordered person' (in Schedule 1 of the Act), as discussed in Chapter 3 of this report. The Act also contains detailed statements of statutory and administrative objects, Departmental objectives and statutory functions of the Director General of Health. The objects include facilitating the care, treatment and control of persons who are mentally ill or mentally disordered through hospitals and community care facilities on an informal and voluntary basis where appropriate and, in a limited number of situations, on an involuntary basis. The statutory objects include the statement that it is intended that every function, discretion and jurisdiction conferred or imposed by the Act is, as far as is practicable, to be performed or exercised to enable care and treatment of those who are mentally ill or disordered to be 'the best possible in the least restrictive environment', with 'any restriction on the liberty of patients or other persons who are mentally ill or disordered and any interference with their rights, dignity and self respect [to be] kept to the minimum necessary in the circumstances.' Voluntary Admission The NSW Mental Health Act provides for a person to be admitted to a hospital as an informal (voluntary) patient on an oral or written application to the medical superintendent made by the person concerned or, in the case of a person under guardianship within the meaning of the Guardianship Act, by the person's guardian with approval of the Guardianship Board. The Act allows the medical superintendent to refuse to admit a person as an informal patient where the superintendent is not satisfied that the person is likely to benefit from care or treatment as an informal patient.13 Provisions are also made for the parent of a person under 14 to veto their admission as an informal patient and for the parent or guardian of a person between 14 and 15 years old to object to that person receiving care or treatment at a hospital, in which case the medical superintendent must discharge the person unless he or she elects to remain. The Act requires the medical superintendent to 'do all such things as are reasonably practicable to notify the person's parent or guardian of the person's admission' as soon as practicable after admission. Human Rights and Equal Opportunity Commission Page 61 Informal patients may discharge themselves at any time and the medical superintendent may discharge them if of the opinion that they are not likely to benefit from further voluntary treatment. An individual who is refused admission as an informal patient or is discharged from hospital, having been admitted as a voluntary patient, may apply to the medical superintendent for review of the refusal or discharge. This review must be conducted as soon as practicable. If, having regard to the condition of an informal patient, the medical superintendent considers it appropriate, he or she may take steps to have the patient admitted and detained as an involuntary patient. Involuntary Admission But a mentally ill person taken to a hospital by a relative has to follow stringent admission procedures before help is given or treatment proceeds... Quite often, both the sufferer and the carer are denied their human right to treatment and turned away until the necessary procedures of admission and scheduling have taken place.14 The NSW Mental Health Act states that a person must not be admitted or detained in hospital as an involuntary patient unless the medical superintendent is of the opinion that no other care of a less restrictive kind is appropriate and reasonably available. The Act provides for detention on the certificate of a medical practitioner who has, immediately before completing that certificate, personally examined or observed the person and formed the opinion that he or she is 'a mentally ill person or mentally disordered person'.15 The doctor must also be satisfied that no other appropriate means of dealing with the person are reasonably available and that involuntary admission and detention are necessary. The Act specifies time limits of five days between certification of a person as mentally ill and their admission and one day between certification and admission of a person who is mentally disordered. Where the certifying doctor considers the condition of the person is such that assistance of the police is required to take the person to hospital and that no other means is reasonably available, the doctor may endorse a certificate accordingly. Police must then 'apprehend and take or assist in taking the person to a hospital'. For these purposes the police are authorised, without obtaining a warrant, to enter premises (by force if necessary) to apprehend the person to be certified. Page 62 Mental Illness Inquiry Involuntary detention may also be initiated under the Act by the police, a welfare officer, a magistrate or, in special circumstances, on the request of a relative or friend. Detention at the request of a relative or friend may occur if the medical superintendent is satisfied that the urgency of the circumstances and the 'distance required to be travelled in order to have the person examined by a medical practitioner' render it 'not reasonably practicable' to follow the normal procedure for examination and certification by a doctor. An individual may be taken to a hospital by a welfare officer who may make a written statement to the medical superintendent expressing the belief that the person is a mentally ill or mentally disordered person. The magistrate may authorise a doctor and any other person to visit (this can, where necessary, involve forcible entry to premises) and personally examine or observe a person thought to be mentally ill or mentally disordered, if no other means of examination or observation are practicable. The person examined or observed in this way may then be detained on the certificate of the doctor. In all these cases, and in the case of an order for detention made under the Mental Health (Criminal Procedures) Act, the medical superintendent of the hospital must refuse to detain a person if he or she is of the opinion that the person is not a mentally ill or mentally disordered person. A person taken to and detained in a hospital must be examined by the medical superintendent as soon as practicable — and not more than four hours after arrival. The NSW Mental Health Act further requires that as soon as practicable after the medical superintendent has certified a person as mentally ill or disordered, the detainee must be examined by another doctor. If the medical superintendent is not a psychiatrist then the further examination must be conducted by a psychiatrist. If the doctor conducting the further examination is of the opinion that the person is not mentally ill or mentally disordered, the Act requires examination by another psychiatrist. If that psychiatrist is also of the opinion that the person is not mentally ill or mentally disordered, he or she must be discharged from the hospital. Where the medical superintendent and the doctor who conducts the further examination agree that the person is mentally ill or mentally disordered, the detainee must be brought before a magistrate as soon as practicable. The medical superintendent has the responsibility to inform the person concerned and to do all such things as are reasonably practicable to give notice of the hearing to the person's nearest relative or a relative nominated by the person; to the person's guardian, if any; and to one or two personal friends. While the NSW Mental Health Act allows a person who has been involuntarily detained to be given 'such treatment (including any medication) as the medical Human Rights and Equal Opportunity Commission Page 63 superintendent sees fit', there is an express requirement to have 'due regard for the possible effects of the medication' and to 'prescribe the minimum medication, consistent with proper care, to ensure that the person is not prevented from communicating adequately with any person who may be engaged to represent the person at an inquiry' before a magistrate. The Act also expressly requires the medical superintendent to ensure, so far as is reasonably practicable, that the person is dressed in street clothes when brought before a magistrate. A person certified as mentally disordered must not be detained in hospital on that ground for more than three days. The medical superintendent is required to examine that patient at least every 24 hours. If the medical superintendent forms the opinion that appropriate care of a less restrictive kind is reasonably available, that person must be discharged. A person may not be admitted and detained as a mentally disordered person more than three times in any one month. Review, Discharge, Leave and Transfer The fact that they can now go before magistrates fully dressed and not in pyjamas...was a major thing which should have been obvious but wasn't.16 The NSW Mental Health Act contains detailed provisions for the conduct by magistrates of inquiries to review involuntary detention.17 Such inquiries must be open to the public unless the person detained objects and the magistrate upholds that objection. However, there are penalties for publishing the name of the detained person or any report of the inquiry which would lead to their identification. The medical superintendent is responsible for making all necessary arrangements for medical witnesses and medical evidence to be placed before the magistrate. The Act provides that a person brought before a magistrate who is 'unable to communicate adequately in English but who is able to communicate adequately in another language' be entitled to a competent interpreter. The person detained (and, with the leave of the magistrate, any other person appearing at the hearing) may be legally represented. The Act gives the person whose detention is at issue a right, unless the magistrate otherwise determines, to inspect any relevant medical records. The magistrate can also require the production of evidence or the attendance of a witness at the inquiry. If the magistrate is satisfied, on the balance of probabilities, that a person is mentally ill, he or she may order that person discharged to the care of a relative or friend or order another course of appropriate action, including Page 64 Mental Illness Inquiry making a community treatment order or community counselling order. If the magistrate considers that no other care of a less restrictive kind is appropriate and reasonably available, the magistrate must direct that the person be detained for further observation or treatment or as a temporary patient for a period not exceeding three months. If the magistrate is not satisfied on the balance of probabilities that the individual is mentally ill, he or she must order the person to be discharged. Where the magistrate considers it is in the person's interest, he or she may defer the operation of an order for discharge for a period not exceeding 14 days. If an order is made by a magistrate for detention of a person as a temporary patient, the medical superintendent must, as soon as practicable, ensure that the patient is given a statement of his or her rights of appeal. There is, however, no right of appeal conferred by the Act against a magistrate's finding that an individual is mentally ill, or against a community treatment order, a community counselling order or a detention order. Where the medical superintendent considers that a temporary patient should be detained beyond the period ordered by the magistrate, the superintendent is required to arrange for that patient to be reviewed by the Mental Health Review Tribunal. The Tribunal, which is required to take account of the effect of any medication on the patient's ability to communicate, must determine whether the patient is mentally ill and whether appropriate care of a less restrictive kind is reasonably available. The Tribunal may then determine that the patient be detained for a further period of observation or treatment as a temporary patient; or whether the person should be classified as a continued treatment patient. The Tribunal must review the detention of temporary patients at intervals of not more than three months. Continued treatment patients must be reviewed by the Tribunal every six months. The Act also requires the Mental Health Review Tribunal to review, at least every 12 months, the case of each informal patient who has received care or treatment in hospital for a continuous period of 12 months or more. The Tribunal is empowered to order the discharge of such a patient and also to defer such discharge for a period not exceeding 14 days. The Act specifies the circumstances in which a medical superintendent must discharge involuntary patients, and their rights to apply for discharge. It also sets out the rights of informal patients to discharge. Relatives or friends of involuntary patients may apply for the discharge. There is a right of appeal to the Tribunal where a medical superintendent refuses an application for discharge or fails to determine such an application within three working days. Human Rights and Equal Opportunity Commission Page 65 Provision is made in the Act for the medical superintendent to grant an involuntary patient leave of absence from hospital, for such periods and subject to such conditions as the superintendent thinks fit. The superintendent is also empowered to transfer an involuntary patient from one hospital to another. In such cases, the Act requires notification of the transfer to the patient's nearest relative, a relative nominated by the patient or, where there is no such relative, a personal friend of the patient. Treatment The medical superintendent of a hospital is authorised to give such treatment, including any medication, as he or she thinks fit where a person is detained involuntarily. The superintendent, and others administering or authorising the administration of medication, must have due regard to the possible effects of the medication and must specifically strike a balance between the level of medication 'consistent with proper care' and that which would prevent individuals from communicating with their representative for the purposes of a magisterial inquiry. The superintendent is required to establish and maintain an internal review system to monitor and review the prescription and use of medication in terms of frequency of administration, dosage, intended and unintended effects and appropriateness of use. The NSW Mental Health Act contains a general prohibition on administration to a person who is or is suspected to be suffering any mental illness or any mental condition, of 'a dosage (or dosages) of a drug or drugs, which having regard to proper professional standards, is excessive or inappropriate.' There is also a prohibition on the administration or performance of deep sleep therapy, insulin coma therapy, or any operation or treatment proscribed by regulation made under the Act. The Act requires that consent be obtained for surgical operations on temporary patients, continued treatment patients, forensic patients suffering from mental illness or any other person detained under the Act. The absence of corresponding requirements for the administration of psychiatric treatment, together with the provision allowing the medical superintendent to authorise treatment for those detained under the Act, indicates that informed consent to general psychiatric treatment appears not to be required for involuntary patients. The position in relation to voluntary patients is unclear. Page 66 Mental Illness Inquiry The Act also contains elaborate provisions concerning electro convulsive therapy (ECT). The Act limits the use of ECT to gazetted psychiatric hospitals, authorised private hospitals or other places authorised by the Director General of Health. It may only be administered in the presence of two doctors and also requires administration of anaesthesia by a doctor. For persons other than involuntary patients, ECT may only be administered if the person is capable of giving informed consent to the treatment and has done so in writing. Two doctors, including at least one psychiatrist, must also certify in writing that they consider the treatment reasonable, proper and necessary or desirable for the safety or welfare of the person, considering that person's clinical condition, history of treatment and any appropriate alternative treatment. The Act sets out at length procedures to be followed for obtaining consent, including a fair explanation of the techniques or procedures; full description of attendant discomfort and risks; full disclosure of alternative treatments, if any; and notice of the right to obtain legal and medical advice before giving consent. Provision is made for ECT to be administered without consent to involuntary patients in emergencies, subject to certain conditions, and after an inquiry and determination by the Mental Health Review Tribunal. Psychosurgery under the NSW Mental Health Act is subject to even more stringent controls. It requires not only consent by the person but also consent by the Psychosurgery Review Board, a body consisting of seven part-time members including a legally qualified President, a neurosurgeon, neurologist or neuroscientist, a clinical psychologist, a person nominated by the Council for Civil Liberties and two psychiatrists. Before giving consent to psychosurgery, the Board must conduct a public hearing at which the patient may be legally represented. The Board may only consent if satisfied the patient is capable of giving informed consent; that the psychosurgery proposed has clinical merit; that the doctors are properly qualified and the hospital is a proper place to perform psychosurgery. If the Board is not satisfied that a patient is capable of giving consent but is satisfied as to the other matters, the Board must state a case for the Supreme Court to determine whether the patient is capable of giving informed consent and, if not, whether consent should be given on the person's behalf. Treatment for mental illness outside hospitals is encouraged by the Act's provisions for community treatment orders and community counselling orders. These allow for treatment and care to be given entirely on an outpatient basis or following hospital treatment. The Act also provides for non-compliance with community counselling or treatment orders, authorising the police to enter premises and use reasonable force to apprehend the person subject to the order without a warrant. The person may then be taken to the appropriate health care Human Rights and Equal Opportunity Commission Page 67 agency. If treatment is refused at a community health service, a person subject to a community treatment order may be taken to a hospital. Forensic Patients I think that at the moment one of the worst things that could happen to anybody in this State is to be found not guilty of an offence on the grounds of mental illness because they then become forensic patients and they frequently serve longer in prison than they would have done had they been found guilty in the ordinary way.18 The Mental Health (Criminal Procedures) Act 1990 contains provisions by which persons involved in criminal proceedings may be found unfit for trial and ordered to be detained in a hospital or other place. It also contains provisions for those found not guilty of an offence by reason of mental illness to be ordered to be detained in strict custody in a hospital or other place. The Mental Health Act contains detailed provisions for reviewing the cases of persons found unfit for trial and those found not guilty by reason of mental illness. It also provides for transfer to a psychiatric hospital of persons serving sentences of imprisonment who appear to the Chief Health Officer to be mentally ill. The Chief Health Officer must make this determination on the basis of a certificate signed by two doctors including a psychiatrist who has examined the prisoner, but is not limited by the definition of mental illness contained in the Mental Health Act. The Mental Health Review Tribunal is required, at intervals of not more than six months, to review the case of each forensic patient and make recommendations to the Minister for Health concerning the patient's continued detention, care or treatment; the patient's release, either conditionally or unconditionally; and, in the case of a patient found unfit for trial, the fitness of that patient to be tried. In contrast to the Tribunal's powers in relation to other patients, the Tribunal has no power to make final determinations in relation to forensic patients. Apart from the limitations on the powers of the Tribunal in relation to forensic patients, the general rights conferred on mentally ill persons under the Mental Health Act also apply to forensic patients. These include the following: • the right to be informed of legal rights and other entitlements under the Act; • the right to legal representation and an interpreter in review hearings; • other procedural rights in relation to review hearings including confidentiality; • the right to information as to medication; Page 68 Mental Illness Inquiry • the right to freedom from wilful assault, ill treatment or neglect by hospital staff; • rights in relation to psychosurgery, ECT, and proscribed treatments. Like other involuntary patients, forensic patients have statutory rights to informed consent in relation to ECT, psychosurgery or surgical operations for physical conditions. Otherwise, forensic patients (like other involuntary patients under the Mental Health Act) may be given such treatment, subject to the Act, as the medical superintendent thinks fit. Administration, Monitoring and Complaint Handling A young man...was attacking other patients and, as an official visitor, I and the other official visitors raised this matter with the staff a number of times and no action was taken until this young man started attacking staff.19 The NSW Mental Health Act provides for public hospitals or other premises to be gazetted as psychiatric hospitals for the purposes of the Act.20 Provision is also made for the Director General of Health to grant licences for privately owned premises to be 'authorised hospitals' for the purposes of the Act. Patients may only be admitted under the Act to a gazetted or authorised hospital. Unlike gazetted hospitals, authorised hospitals require an annual statement relating to the conduct of the hospital, the admission of patients and the care and treatment provided on the premises.21 The Director General may cancel a licence or vary the terms and conditions to which it is subject. There are also statutory requirements regarding the ratio of patients to services provided by qualified doctors at authorised hospitals. The Act continues the use of official visitors to inspect hospitals and other health care agencies as a means of monitoring standards of service delivery. Two or more official visitors, including a medical practitioner and one a suitably qualified or interested person, are appointed by the Minister for each hospital or health care agency and must visit the facility at least once a month. They are required, as far as practicable, to inspect every part of the hospital or health care agency and make such inquiries as they think necessary concerning the care, treatment and control of informal patients and those detained in the hospital who are subject to community counselling or community treatment orders. Official visitors must be permitted to see and interview patients and to examine all relevant records and documents.22 They may report to the Minister. Human Rights and Equal Opportunity Commission Page 69 The Act also provides for the appointment by the Director General of authorised officers who are required to inspect hospitals and make such investigations and inquiries as they consider necessary and as the Director General may direct. Authorised officers have powers to gain access to medical records, other documents and information. The Health Department has a Complaints Unit which is active in investigating and referring for determination complaints against doctors and others employed by health care agencies. Legislation is due to be introduced to provide a statutory basis for the handling of such complaints. Mental Health Review Tribunal The NSW Mental Health Review Tribunal, established under the Mental Health Act, consists of a President, Deputy President and other members (both full- time and part-time). They are appointed by the Governor and able to be removed by the Minister at any time. The Tribunal's functions are to review the detention of temporary patients, continued treatment patients, informal patients and forensic patients at regular intervals; and to hear and determine appeals from temporary or continued patients whose applications for discharge have been refused or not dealt with by the medical superintendent. It also determines whether consent should be given to administration of ECT to an involuntary patient who has refused or not consented to the therapy, and it may determine the validity of a patient's consent to such treatment where the medical superintendent makes application for this. If ECT is administered without consent in an emergency, the Tribunal must receive a written report of the treatment including copies of relevant medical records. The Tribunal members are to include barristers and solicitors, psychiatrists and people with other suitable qualifications or experience. In cases relating to forensic patients, the President or Deputy President must chair the proceedings. The Tribunal is not bound by the rules of evidence and may inform itself of any matter it thinks appropriate. The Act specifically states that in determining whether a person is a mentally ill person the Tribunal is to have due regard to any cultural factors which may be relevant and to any evidence by an expert witness concerning the person's cultural background. The Tribunal's proceedings are open to the public unless a party to the proceedings objects and the Tribunal upholds the objection. Names and other material which may identify an individual are not to be published. There are Page 70 Mental Illness Inquiry statutory rights to appearance before the Tribunal, to representation and to assistance by a competent interpreter. A patient or another applicant is entitled to inspect any medical records unless the Tribunal otherwise determines. Representatives also have rights of access to medical records. The Tribunal may, of its own motion or on the application of any person before it, issue a summons for a witness to attend or for the production of documents. All determinations or recommendations of the Tribunal must be recorded in writing and, if requested by any party to proceedings, must include reasons for the determination or recommendation. Guardianship The Guardianship Act 1987 covers those who are 'intellectually, physically, psychologically or sensorily disabled' and specifically extends to a person 'who is a mentally ill person within the meaning of the Mental Health Act'. Application may be made to the Guardianship Board for a guardianship order. If the Board is satisfied that the person has a disability, is 'restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation', and is 'in need of a guardian' it may make a limited or, if necessary, a plenary order on a temporary or continuing basis, subject to such conditions as it considers appropriate. The guardian may be an individual or the Public Guardian. Where the Board makes a continuing guardianship order appointing a person other than the Public Guardian, it is required to refer a copy of the order to the Public Guardian. The Board may review any guardianship order of its own motion or at the request of any person entitled to do so under the Act; and at the expiration of any period for which the order had effect. A review may be requested by the guardian, the person under guardianship, the Public Guardian or any other person who, in the Board's opinion, has a genuine concern for the welfare for the person under guardianship. The Guardianship Board also has power, under the Protected Estates Act 1983, to make orders appointing financial managers for those incapable of administering their own property. For the purpose of exercising its functions, the Board is constituted by three to five members. These must include one person who is legally qualified (who presides in a hearing); a person such as a medical practitioner, psychologist or social worker, who in the Minister's opinion, has experience in assessing or treating people with disabilities; and a person who, in the Minister's opinion, Human Rights and Equal Opportunity Commission Page 71 has experience with people with disabilities. The Board is not bound by the rules of evidence and may inform itself of any matter in such a manner as it thinks fit. Proceedings are to be open to the public unless the Board determines otherwise. The Act prohibits the publication of the names of those subject to proceedings before the Board, witnesses or those mentioned in evidence. Parties to proceedings have a statutory right to appear in person and may, by leave of the Board, be represented by a lawyer or agent. The Board may compel the attendance of witnesses or the production of any relevant document. The Board is also required to attempt to achieve a conciliated settlement in any case before determining an application. Determinations are required to be in writing and to include the reasons for decision. The guardianship legislation complements the Mental Health Act in several respects. It allows a person with a disability that is not a mental illness within the meaning of the Mental Health Act to be admitted to a psychiatric hospital as an informal patient where such care and/or treatment is in that person's interest. It also allows a person who is not mentally ill within the meaning of that Act, but who nevertheless has some form of mental illness, to be given care or treatment in that person's interest either as an informal patient in a psychiatric hospital or elsewhere. The Guardianship Act provides that in the event of an inconsistency between the provisions of that Act concerning medical consent and the provisions of the Mental Health Act, the latter shall prevail. There is also provision in the Guardianship Act for a guardianship order to be suspended while a person is involuntarily detained under the Mental Health Act. Anti-Discrimination Legislation Under the NSW Anti-Discrimination Act 1977, discrimination is prohibited on the grounds of physical or intellectual disability. The statutory definitions of these do not specifically include or exclude mental illness. It may be argued that conditions that have a physiological aetiology (as schizophrenia and manic- depression are now thought to) come within those definitions of intellectual or physical disability under the Act which refer to 'defect or disturbance of the structure and functioning' of the brain or body respectively. Page 72 Mental Illness Inquiry Victoria I think there's always going to be confusion between where one draws the line between the responsibility to intervene and give someone help and the responsibility to let that person declare that they do not want to be treated.23 The Victorian Mental Health Act 1986 and related legislation includes some of the best provisions in Australia relating to the treatment of mental illness. The Victorian Public Advocate and Health Services Commissioner have been used for models for recent reforms in the ACT and Queensland. The Mental Health Act contains detailed statements of statutory objects and departmental objects. However, there are also deficiencies in the Victorian legislation — such as the absence of a statutory definition of mental illness. Voluntary Admission Every day of the week in this State people remain in private psychiatric hospitals as de facto involuntary patients in that they are told, 'If you are not prepared to stay here you will be certified' ,24 The Victorian Act provides for voluntary admission as a psychiatric patient, subject to the discretion of the psychiatrist authorised as the senior officer of the hospital or facility. Admission may be refused if the authorised psychiatrist is not satisfied that the person is likely to benefit from care and treatment as a voluntary patient. There is a right of appeal against refusal to the chief psychiatrist. A voluntary patient may leave the inpatient facility at any time or may be discharged by the authorised psychiatrist. There is provision under the Act for the senior psychiatric nurse on duty to 'reasonably restrain the voluntary patient and prevent the voluntary patient from discharging himself or herself for a period not exceeding six hours so that the voluntary patient can be examined by a medical practitioner', where the nurse considers that the patient meets the criteria for involuntary admission under the Act.25 Involuntary Admission The criteria for admission and detention as an involuntary patient under the Victorian Act are as follows: (a) that the person appears to be mentally ill; and (b) that the person's mental illness requires immediate treatment or care and treatment or care can be obtained by admission to and detention in a psychiatric inpatient service; and Human Rights and Equal Opportunity Commission Page 73 (c) that the person should be admitted and detained as an involuntary patient for that person's health and safety or for the protection of members of the public; and (d) that the person has refused or is unable to consent to the necessary treatment or care for the mental illness; and (e) that the person cannot receive adequate treatment or care for the mental illness in a manner less restrictive of that person's freedom of decision and action.26 The procedure for involuntary admission under the Victorian Act requires the production of a request for detention, together with a recommendation for admission by a medical practitioner who considers that the relevant criteria for admission and detention are met. This recommendation need not be based on personal examination by the doctor who signs the recommendation provided that doctor relies upon a medical examination made within the previous 28 days. The person must be admitted to a psychiatric inpatient service by a doctor employed in or by that service and must be examined within 24 hours of admission by the authorised psychiatrist for that service. The authorised psychiatrist must, upon examination, confirm the admission if satisfied that continued detention is warranted; or if not so satisfied must discharge the person. Discharge, Leave, Transfer and Review An involuntary patient may be discharged at any time by the authorised psychiatrist if he or she is satisfied that continued detention is not necessary in terms of the criteria for involuntary detention under the Act. An order for discharge of an involuntary patient may also be made by the Mental Health Review Board where the Board is not satisfied that continued detention is necessary, having regard to the statutory criteria. Provision is made under the Victorian Act for involuntary patients to be granted leave of absence for such periods and subject to such conditions as the authorised psychiatrist considers appropriate. The authorised psychiatrist also has power under the Act to order the transfer of an involuntary patient to another psychiatric inpatient service if the authorised psychiatrist is satisfied that the transfer would be of benefit to the patient or that it is necessary for the patient's care and treatment. The authorised psychiatrist of the service to which it is proposed to transfer the patient must approve the transfer and the chief psychiatrist must be notified. Provision is made for a patient to appeal to the Mental Health Review Board against a transfer. The Board must consider whether the transfer will be of benefit to the patient and whether it is necessary for the patient's care and treatment. The Board may either confirm the transfer or direct that the patient continue to be detained at, or be returned to, the original facility. Page 74 Mental Illness Inquiry The Mental Health Review Board established by the Victorian Act consists of a President and other members appointed by the Governor.27 The Board sits in divisions consisting of three members, one of whom must be a senior barrister and solicitor; one a psychiatrist other than the authorised psychiatrist of the facility at which the division is to sit; and one a person appointed to represent the views and opinions of members of the community. The Mental Health Review Board must hear appeals against involuntary detention four to six weeks after detention and review continued detention thereafter at intervals of not more than 12 months.28 The Board also has the power to: • appeal against transfers; • receive reports on the use of restraint, seclusion or electro convulsive therapy given without consent; • receive reports on consent by guardians or authorised psychiatrists to non psychiatric treatment to patients deemed incapable of giving informed consent themselves; and • hear appeals from security patients against involuntary detention or refusal of leave. The Board is empowered to discharge involuntary patients unless satisfied, in terms of the statutory criteria, that continued detention is necessary. The Board also receives reports on specified matters such as administration of ECT without the patient's consent and the use of seclusion and restraint. Proceedings of the Mental Health Review Board must be conducted according to equity and good conscience without regard to technicalities or legal forms. The Board is not bound by the rules of evidence and may inform itself in such manner as it sees fit although the Act expressly requires that the rules of natural justice be observed.29 Hearings of the Board are to be closed to the public unless it is satisfied that it would be in the interest of the patient or in the public interest to open any particular proceedings or any parts of proceedings. The Board is required to provide written statements of its decisions and, where requested by a party to the proceedings to do so, to provide written reasons for decisions. These are only to be published if the Board determines this to be appropriate in a particular case in the public interest. Where a report is made public the Board must ensure that it does not contain any particulars that could lead to the identification of any person involved in the proceedings. A person aggrieved by a determination of the Mental Health Review Board may apply to the Victorian Administrative Appeals Tribunal for review. The Victorian Mental Health Act also provides for the Board, of its own motion or on the application of any person who is a party to proceedings, to reserve a Human Rights and Equal Opportunity Commission Page 75 question of law arising in proceedings before the Board, and to state a case for the opinion of the Supreme Court. The Court's opinion must be obtained and applied by the Board in determining the matter before it. Treatment One of the conundrums that arises in the care of people with psychiatric illness is the feeling that consent, as is enshrined in the law, is perhaps out of place in dealing with mental illness.30 In accordance with the principle of treatment in the least restrictive environment, the Victorian Mental Health Act provides for the making of community treatment orders as an alternative to inpatient treatment for a person who meets the criteria for involuntary detention.31 Such community treatment orders must specify the doctor to supervise the treatment and care of the patient; the place at which the patient is to receive the treatment; and the manner in which the doctor is to report on the patient's progress. The duration of the order must not exceed 12 months. During this time the person subject to the order is deemed to be an involuntary patient. The order may be revoked or varied by the Mental Health Review Board or by an authorised psychiatrist. The need for immediate treatment for mental illness and refusal and inability to consent to necessary treatment or care are among the criteria for involuntary detention under the Act. The provisions for admission and detention of involuntary patients include a provision for the authorised psychiatrist or guardian to consent to treatment for a patient's mental illness where such patient has refused to consent to the necessary treatment or is not capable of giving written consent for treatment of his or her mental illness.32 This is a relatively clear abrogation of common law rights in relation to informed consent and refusal of treatment. The only remaining scope for these common law rights is in relation to voluntary patients and to involuntary patients who are capable of giving written consent or who are being offered treatment other than necessary treatment. Non-psychiatric treatment is defined as: • any surgical operation or procedure or series of related surgical operations and procedures; or • administration of an anaesthetic for the purpose of medical investigation; or • administration of any course of treatment or medication requiring a prescription or medical supervision, the primary purpose of which is not the treatment of any mental illness or the effects of mental illness. Page 76 Mental Illness Inquiry The Act also contains detailed provision for consent in relation to psychosurgery and electro convulsive therapy. Administration of psychosurgery requires written consent from the person on whom it is to be performed after a clear explanation of the benefits, discomforts, risks, any beneficial alternative treatment and any other information concerning the techniques or procedures to be used about which the patient may ask. A doctor who is to perform psychosurgery must also apply to the Psychosurgery Review Board. There is provision for the person on whom the surgery is to be performed to be legally represented at this hearing. The Psychosurgery Review Board must consider whether the person on whom the surgery is to be performed has the capacity to give informed consent; whether he or she has given informed consent; whether the proposed psychosurgery has clinical merit and is appropriate; whether the person proposing to perform the psychosurgery is properly qualified; whether the place in which it is to be performed is appropriate and whether all other reasonable treatments have already been adequately and skilfully administered without sufficient and lasting benefit. Any approval by the Board must specify the name of the doctor to perform the psychosurgery; the nature of the psychosurgery to be performed; the place in which it is to be performed and the period within which it is to take place. Reports of all psychosurgery performed must be submitted to the Psychosurgery Review Board and the Board must review at regular intervals the case of any person on whom psychosurgery has been performed. In relation to electro convulsive therapy (ECT), the Victorian Act also requires informed consent except in the case of an involuntary or security patient who is incapable of giving informed consent. In these cases, it is necessary for a psychiatrist to authorise ECT and, wherever possible, for the consent of the primary caregiver or guardian to be obtained. The Act also provides an exception to the general requirement for informed consent in relation to electro convulsive therapy for cases where 'the nature of the mental illness from which the patient is suffering is such that the performance of ECT is urgently needed'. The administration of ECT is permitted under the Act only in premises licensed for the purpose. There are detailed provisions for such licensing. The use of mechanical means of bodily restraint is limited under the Victorian Act to cases where it is necessary for the purposes of medical treatment of the patient; to prevent the patient from causing injury to himself or herself or any other person; or to prevent the patient from persistently destroying property. The use of mechanical restraint must be approved by the authorised psychiatrist or, in an emergency, by the senior psychiatric nurse on duty. In the latter case the authorised psychiatrist must be notified without delay. A report on the use Human Rights and Equal Opportunity Commission Page 77 of mechanical restraint must be sent to the Mental Health Review Board on a monthly basis. The use of seclusion is limited under the Act to situations where it is necessary 'for the protection, safety or well being of the patient or other persons with whom he or she would be in contact.' Its use must be approved in the same way as mechanical restraint and a report must be made to the Mental Health Review Board each month. The Act specifies that supervision must be given to a patient in seclusion and lists other conditions such as supply of appropriate bedding, clothing, food and drinks. Forensic Patients We still have in this State the iniquitous system of people who are found not guilty on the grounds of insanity or unfit to plead detained in custody, sometimes in prison, sometimes in psychiatric hospitals, for an indefinite period. Release decisions are made by State Cabinet, and inevitably it appears political considerations are taken into account...33 The Victorian Mental Health Act contains provision for hospital orders and restricted community treatment orders to be made for persons charged with or convicted of criminal offences. The hospital order may be made for admission and detention of a person in a psychiatric inpatient service subject to the normal provisions applicable to involuntary patients under the Act, with the exception that if the patient is discharged by the Mental Health Review Board or by an authorised psychiatrist before the expiration of the hospital order, application must be made to the court for sentence to be passed. In doing this, the court may take into account the period spent in detention under the hospital order. A hospital order may also be made for admission or detention of a person as an involuntary patient for a specified period not exceeding three months for the purpose of diagnosis, assessment and treatment. Hospital orders may be made as an alternative to sentencing after a person is found guilty of a criminal offence if a court is satisfied on the production of a psychiatric certificate and such other evidence as it may require, that the person appears to be suffering from a mental illness that requires treatment; that the treatment can be obtained by admission to and in a service; and that the person should be admitted as an involuntary patient for their own health and safety or for the protection of members of the public. The Victorian Act also empowers the Director General of Corrections to make a hospital order to transfer a person already imprisoned or legally detained who appears to be mentally ill. The criteria for the exercise of this discretion are identical to those applicable to the making of a hospital order by the court. The Page 78 Mental Illness Inquiry Director General must be satisfied as to these criteria after receiving a certificate from a psychiatrist. The Director General must also receive a report from the authorised psychiatrist at the facility to which it is proposed to admit the person with a recommendation that the transfer be made. Hospital orders made by the Director General of Corrections may either be for admission in the normal course as an involuntary patient or may be in the form of a 'restricted hospital order' under which a person is admitted and detained in a psychiatric inpatient service as a security patient. In deciding whether to make a restricted hospital order, the Director General of Corrections must consider the public interest in all the circumstances of the case including the person's criminal record and psychiatric history. As with involuntary patients, the Act provides that security patients are to be detained and treated for mental illness and if incapable of consenting to treatment or refusing to consent to necessary treatment, consent to psychiatric treatment may be given by an authorised psychiatrist or a guardian. The Mental Health Act provides that security patients are in the custody of the authorised psychiatrist of the inpatient service to which they are admitted and subject to such security conditions as the authorised psychiatrist considers necessary. Security patients may be transferred to another psychiatric inpatient service and may be given leave of absence by the chief psychiatrist or by the Mental Health Review Board, provided that the safety of members of the public will not be seriously endangered. The Act provides for discharge of security patients by the Mental Health Review Board or by the chief psychiatrist where their continued detention is not necessary in terms of the statutory criteria for detention of security patients. The Director General of Corrections must be notified by the Mental Health Review Board or the chief psychiatrist of the discharge of a security patient and the person must be returned to prison custody. The Mental Health Act provides that where a security patient is granted bail, released from custody by a court or completes his or her sentence of imprisonment, the detention as a security patient ceases. The Director General of Corrections is required to notify the chief psychiatrist when a patient's sentence of imprisonment is to expire. Restricted community treatment orders may be made under the Mental Health Act in respect of persons detained as involuntary patients under hospital orders made by a court. The authorised psychiatrist at the hospital at which the person is detained may apply to the chief psychiatrist for a restricted community treatment order to be made where the patient who appears to be suffering from a mental illness requires treatment and where either the person's own health or the safety or protection of members of the public requires such an order. Human Rights and Equal Opportunity Commission Page 79 The restricted community treatment order must specify not only the psychiatrist to supervise the treatment and the place where the treatment is to be received, but also the intervals at which the patient must attend for treatment and the intervals at which they must attend the psychiatric inpatient service for monitoring. The Act requires that, having made a restricted community treatment order, the chief psychiatrist must send a copy to the Mental Health Review Board for review as soon as practicable. Only when the Mental Health Review Board has conducted this review does the restricted order take effect. The chief psychiatrist or the Mental Health Review Board may vary or revoke restricted community treatment orders. The Act provides for restricted community treatment service orders to be extended for up to 12 months at a time. Under the Victorian Sentencing Act of 1991, the courts have available a further option of a 'hospital security order' which allows a person found guilty of a criminal offence to be admitted to a psychiatric hospital for a specified period as a security patient. The authorised psychiatrist of the hospital concerned must recommend to the court an admission as a security patient. The person subject to a hospital security order has a right of appeal to the Mental Health Review Board and must be reviewed at regular intervals by the Board. If the Board determines that a person no longer satisfies the criteria for detention as a security patient, they must be discharged from the hospital and detained in prison for the remainder of the specified term. Victoria also has a law which was designed to enable one individual (the late Mr Garry David) to be detained on the basis of a finding by the Supreme Court that he was a serious risk to the safety of any member of the public and likely to commit an act of personal violence to another person: the Community Protection Act 1990. This legislation followed the finding by the relevant authorities that Garry David had a personality disorder rather than a mental illness and therefore could not be detained under the Mental Health Act at the expiration of his prison sentence. Monitoring and Complaint Handling Mechanisms Alone amongst public hospitals in Victoria our psychiatric hospitals do not have anyone who is designated as a complaints liaison officer.34 The Victorian Mental Health Act gives the Governor the power to proclaim any premises provided by the State for the care and treatment of persons who are mentally ill as an approved psychiatric hospital. The Governor may also proclaim the psychiatric unit of a general hospital to be an approved psychiatric Page 80 Mental Illness Inquiry unit if that unit satisfies 'an appropriate standard as determined by the department'. Other than the statements of statutory objects and departmental objectives there are no standards specified in the Act. Provision is made in the Act for community support services, including crisis services, residential services, community assistance or rehabilitation services, family support services, advocacy services and any other training, education, recreation or therapeutic services to be funded by the Department subject to any conditions considered appropriate by the Chief General Manager. Registration of these community support services depends upon the Chief General Manager being satisfied that the service operates in accordance with the principles specified in the Act. The Chief General Manager enters into funding and service agreements with registered community services on the understanding that services use their funding for specified purposes and keep appropriate records in relation to financial matters and the kinds of services provided. An administrator may be appointed where the Minister forms the opinion that a community support service is inefficiently or incompetently managed; has failed to provide an effective service in accordance with the statutory principles; or has breached any of the provisions of the funding and services agreement. The Act also provides for the appointment by the Chief General Manager of a Chief Psychiatrist who is to be responsible for the medical care and welfare of persons receiving treatment for mental illness. The Chief Psychiatrist has the power to visit any psychiatric service, including community health centres, psychiatric outpatients' clinics, community support services and general or private hospitals which care for persons who are mentally ill. The Chief Psychiatrist may inspect the premises or any part of the premises; may see any person who is receiving treatment for mental illness; make inquiries relating to admission, detention, care, treatment and control of patients; and inspect any documents relating to any patient. The Guardianship and Administration Board Act 1986 established an Office of the Public Advocate with functions encompassing all persons with disability. These functions include promoting the provision, development and coordination of facilities provided by Government, community and voluntary organisations for persons with disability. The objective is to enable people with disabilities to act independently, to minimise restrictions on their rights and to maximise utilisation of services and facilities, encouraging the involvement of voluntary organisations, relatives, guardians and friends in the management and provision of such services and facilities. Human Rights and Equal Opportunity Commission Page 81 The Public Advocate is appointed by the Governor for a period of seven years and can only be removed from office on a motion by both houses of Parliament. The powers conferred on the Public Advocate are relatively broad and include intervention in any proceedings before the Guardianship and Administration Board; representation or advocacy on the part of any person with disability; provision of advice concerning the provisions of the Guardianship and Administration Act; investigation of any complaint or allegation that a person is under inappropriate guardianship or is being exploited or refused or in need of guardianship; and reporting or making recommendations to the Equal Opportunity Board on behalf of people with disabilities. The Victorian Mental Health Act provides for the appointment by the Governor of community visitors with the power to inspect premises or documents and to make inquiries into the admission, detention, care, treatment and control of patients. The community visitors are required to report to the Public Advocate and to the Minister. Their functions include: (a) inquiry into the adequacy of services for the assessment and treatment of inpatients, outpatients and other persons referred for assessment and treatment under the Mental Health Act; (b) inquiry into the appropriateness and standard of facilities for the accommodation, physical well being and welfare of persons receiving treatment and care for mental illness; (c) inquiry into the adequacy of opportunities and facilities for recreation, occupation, education, training and rehabilitation; and (d) inquiry into the extent to which treatment or care is provided in the least restrictive environment. The Health Services (Conciliation and Review) Act 1987 establishes the position of Health Services Commissioner with powers to investigate and conciliate complaints in relation to health services; to identify and review the causes of such complaints; and to propose ways of improving those situations. The Commissioner is appointed by the Governor and can only be removed on a motion by both Houses of Parliament. The legislation gives the Commissioner significant powers to obtain information including compulsory powers to require attendance at inquiries and to call for documents or other evidence. The Commissioner provides the Minister with an annual report on his or her activities. The Victorian Health Services Act 1988 empowers the Minister to declare a specified committee, council or other body established by one or more health Page 82 Mental Illness Inquiry service agencies to be an approved quality assurance body. The functions of such a body include the assessment and evaluation of the quality of health services provided by the agency or establishment, including the review of the clinical practices and clinical competence of a person providing those services. Guardianship and Administration The Guardianship and Administration Board Act of 1986 establishes the Guardianship Board as an independent body constituted by a legally qualified member and such other members as are necessary from time to time. The Board may make a guardianship order if satisfied that a person has a disability, is by reason of that disability unable to make reasonable judgements in respect of all or any of the matters relating to his or her person or circumstances, and that the person is in need of a guardian. A guardian may be appointed on either a plenary or limited basis. The Board's proceedings are public unless the Board decides otherwise. However, the Board's determinations are not to be published unless the Board considers that it would be in the public interest to do so, in which case the identifying particulars of the case are to be deleted. The Board's proceedings are to be conducted informally in accordance with equity and good conscience but without regard to technicalities or legal forms. The Board is bound by the rules of natural justice. The representation of the applicant and of the person in respect of whom the application is made is permitted but not required. The Board may appoint either the Public Advocate or a private individual as guardian. A plenary guardianship order confers 'all the powers and duties which the plenary guardian would have if he or she were a parent and the represented person was his or her child'. An order appointing a limited guardian may specify one or more of the powers and duties that may be conferred on a plenary guardian. The Guardianship and Administration Board also has the power to appoint an administrator for the estate of a person if it is satisfied that the person has a disability, is by reason of that disability unable to make reasonable judgements in respect of matters relating to all or any part of their estate, and is in need of an administrator of their estate. The Board may appoint the State Trust, Public Advocate or any other person who satisfies the statutory requirements as a suitable administrator. The administrator has the powers and duties conferred on the State Trust under the State Trust Corporation of Victoria Act 1987. Human Rights and Equal Opportunity Commission Page 83 Anti-Discrimination Legislation The Victorian Equal Opportunity Act of 1984 covers discrimination on the ground of 'impairment.' This includes an impairment which has ceased to exist and an impairment which is imputed to a person. The definition of an impairment in the Act includes 'a mental or psychological disease or disorder'. Queensland The Queensland Mental Health Services Act, originally passed in 1974, has since been significantly amended and displays a mixture of old and more progressive provisions. It contains no definition of mental illness or mentally ill person and states that its provisions apply 'to drug dependence and intellectual handicap as if each of these conditions were a mental illness.' The legislative criteria for involuntary or 'regulated' admission are broad and the Act allows for 'removal to a place of safety' with or without a warrant. Voluntary Admission The Queensland Act allows the patient 'who is in need of treatment for mental illness' to be admitted to any hospital other than a security patients' hospital. A patient who has been detained involuntarily under the Act may also be admitted as a voluntary patient once he or she ceases to be liable for regulated patients' admission. The Act provides that a hospital administrator may refuse to make arrangements to admit a patient to or to keep a patient in hospital after medical examination and assessment of the patient's condition. Where the hospital administrator thinks the patient would benefit from treatment at any other place, he or she must refer the patient to that place. Involuntary Admission The criteria for involuntary admission under the Queensland Act are broadly defined: (a) That [the person] is suffering from mental illness of a nature or to a degree that warrants detention in a hospital; (b) that [the person] ought to be so detained in the interests of [the person's] own welfare or with a view to the protection of other persons.35 Application may be made by a relative or 'authorised person' (defined in the regulations as a person appointed as such by the Minister) and must be supported by a written recommendation from a medical practitioner.36 An application for admission together with a medical recommendation in the Page 84 Mental Illness Inquiry prescribed form are sufficient authority for the person whose admission is sought to be conveyed to hospital. The Act requires members of the police force to assist in this process, 'accompanied by an authorised person'.37 Provided the hospital administrator consents to admission, a patient may be admitted for a period of up to three days on the basis of the application and medical recommendation.38 For detention beyond that period, another recommendation, also in the prescribed form, must be provided by a different doctor who has examined the patient after admission. On the basis of the second medical recommendation, the patient may be detained for a period of up to 21 days from the day of admission. Up to this point there is no statutory requirement for examination by a psychiatrist. However, for involuntary detention beyond 21 days the hospital administrator must have the patient examined by a psychiatrist. If it appears to the psychiatrist that it is 'necessary in the interests of the patient's welfare or for the protection of other persons that the patient should continue to be liable to be detained' a report to this effect must be supplied to the hospital administrator. This report may then form the basis for renewal of detention for up to three months and subsequently for a period not exceeding 12 months from admission. Renewals of detention for periods beyond 21 days must be reviewed by the Patient Review Tribunal. A person may also be involuntarily detained under the Mental Health Services Act in accordance with provisions allowing 'removal to a place of safety' with or without a warrant. The Act allows for any person to lay information on oath before a justice. If, on the basis of such information, it appears to the justice that 'there is reasonable cause to suspect that a person is mentally ill and that in the interests of that person or for the protection of other persons it is necessary' to issue a warrant for removal to a place of safety, the justice may issue such a warrant. This authorises and requires the police for a period of 14 days from the date of the warrant, in the company of a doctor and 'designated authorised person', to: (a) apprehend the person in respect of whom the warrant is issued; (b) enter and search, if need be by force, the premises specified in the warrant and any other premises in which the police reasonably believe the person will be found; and (c) remove the person to a place of safety. The doctor accompanying the police officer may provide the officer with a written opinion that the person who is the subject of the warrant is not mentally ill or that it is not necessary for the person to be removed to a place of safety in his or her own interests or for the protection of others. If provided with such a written opinion, the police officer must not execute the warrant and must Human Rights and Equal Opportunity Commission Page 85 report accordingly, with reasons, to the Director of Psychiatric Services. The term 'place of safety' is defined in the Act as 'any hospital (other than a security patients' hospital) or police station, or any other suitable place the occupier of which is willing to receive temporarily a patient,' The procedure under the Mental Health Services Act for removal without a warrant to a place of safety authorises a member of the police force to remove any person the police officer 'believes to be mentally ill and a danger to himself or other persons and in need of immediate treatment or control'. The Act prescribes certain limitations on this power in relation to removal of a person 'from any place that is not a public place': the police officer must reasonably believe that obtaining a warrant would involve unreasonable delay and must obtain the consent of the occupier or person apparently in control of the place in question unless that person is not readily identifiable or available. A person removed to a place of safety under the Queensland Mental Health Services Act may be detained 'for the purpose of being examined...as soon as practicable by a doctor and being interviewed by an authorised person with a view to the making of an application for involuntary detention or the making of other arrangements for treatment.' Detention in a 'place of safety' must not exceed three days. If, upon medical examination, the doctor does not consider the person to be mentally ill, or in need of detention on the ground of mental illness, the doctor must certify accordingly and the person must be discharged. Review, Leave and Transfer The Queensland Mental Health Services Act establishes Patient Review Tribunals, each constituted by three to five members appointed, and capable of being removed from office, by the Governor in Council. Each Tribunal must be chaired by a retired Judge or a person qualified to be a District Court Judge. Tribunals must include at least one member who is a medical practitioner and at least one other member qualified to practice a profession 'that requires a special knowledge and interest with respect to mental illness'. The Act does not specify procedures other than for making applications to the Tribunals. Nor does the Act require the Patient Review Tribunals to adhere to the rules of natural justice, allowing them to 'admit, and proceed and recommend upon such information or evidence as [they think] fit, whether the same as the law would allow or admit in other cases or not.' In any case of involuntary detention under the Mental Health Services Act in excess of 21 days, the hospital administrator must apply to the Tribunal for review of the detention. The administrator is also required to ensure that the patient is informed of their right to apply, or to have application made on their Page 86 Mental Illness Inquiry behalf, to the Patient Review Tribunal for discharge. Application may be made on behalf of the patient by any authorised person or relative or any other person by leave of the Tribunal. The Tribunal also has discretion to allow an applicant to be assisted during a hearing by a lawyer who provides 'legal representation determined by the Tribunal to be warranted' or by any other person. Where the Patient Review Tribunal is satisfied that the patient is not suffering from mental illness of a nature or to a degree that warrants detention in hospital and does not need to be detained for their own welfare or for the protection of others, the Tribunal may order the Director to discharge the patient. The Tribunal also has power to order the Director to make appropriate arrangements for transfer or leave of absence, and to make recommendations in respect of any other matter. The Director may, within seven days of receiving a Tribunal order for the discharge of a patient, apply to the Mental Health Tribunal to have the order set aside. In this case the discharge order made by the Patient Review Tribunal does not operate, pending determination of the application by the Mental Health Tribunal. An application may also be made to the Mental Health Tribunal to set aside the refusal of a patient's application for discharge. However, in the case of a determination confirming renewal of detention upon an application made by the hospital administrator, the patient has no right to seek review by the Mental Health Tribunal. The Mental Health Tribunal established under the Mental Health Services Act consists of a Judge of the Supreme Court, assisted by two psychiatrists who are not members of the Tribunal. The Judge and psychiatrists are appointed by Order in Council. The rules for procedure before the Mental Health Tribunal (the Mental Health Tribunal Practice Rules 1985) repeat the formula used in the Act for the Patient Review Tribunal, allowing the Tribunal to 'admit and proceed and make determination upon such information or evidence as it thinks fit whether or not such information or evidence is such that the law would require or admit in other proceedings.' There is, however, also a provision in the Mental Health Services Act itself which deems proceedings before the Mental Health Tribunal to be judicial proceedings, thereby importing common law rules of natural justice. The Act also requires that evidence before the Mental Health Tribunal be taken on oath or affirmation. Power is conferred on the Mental Health Tribunal to direct any person to visit and examine a person detained as mentally ill and to inquire into and report upon such matters in relation to that person as the Tribunal thinks fit. The Tribunal may exercise these powers on the application of any person or of its own motion. Similarly, the Tribunal may, on application or of its own motion, Human Rights and Equal Opportunity Commission Page 87 direct the hospital administrator or the occupier or resident of any house in which a person may be detained as mentally ill, to bring such a person before the Tribunal. Where the Tribunal is satisfied that such a person is not suffering from mental illness of a nature or to a degree that warrants detention in the hospital and does not need to be detained in the interests of their own welfare or the protection of others, or that the person is unlawfully detained, the Tribunal must order the person to be immediately discharged. The Tribunal is given powers to require the production of evidence and for attendance of witnesses relating to these matters as well as powers to direct a doctor to examine and assess a person whose mental condition is in question. Provision is made in the Queensland Mental Health Services Act for transfer of involuntary patients from any hospital to any other hospital other than a security patients' hospital, under arrangements made by the hospital administrators and in accordance with an order for the transfer of the patient, signed by a doctor. Where a hospital administrator believes the assistance of a member of the police force is necessary in the transfer, a certificate stating this provides the necessary authority for the police to provide such assistance. Provision is also made under the Act for the removal of patients interstate by order of the Mental Health Tribunal on application made by any person. The Tribunal must determine that it would be in the interests of the patient's welfare that they be removed from Queensland and that they have 'a relative or other person in that place...who is willing to undertake the care and charge' of the patient. There is also provision under the Mental Health Services Act for involuntary patients, other than security patients, to be granted leave from hospital, subject to such conditions as the designated medical practitioner may consider necessary 'in the interests of the patient or for the protection of other persons.' Such conditions may, specifically, include a direction that the patient is to remain in the custody of another person during the period of leave. Leave of absence may be revoked and the patient recalled to hospital whenever the designated medical practitioner or the hospital administrator or the Director of Psychiatric Services considers that it is 'necessary so to do in the interests or the patient's welfare or the protection of other persons'. These provisions and the provisions for the discharge of patients are subject to exceptions in relation to 'restricted patients'. The Act gives the Director of Psychiatric Services the discretion to classify an involuntary patient as a restricted patient where the Director is of the opinion that such a patient, 'if granted leave of absence or discharge from a hospital, would be likely to act in a manner dangerous to himself or to other persons, and that it is necessary in the interests of the patient's health or safety or for the protection of other persons that the patient should be restricted.' A restricted patient may only be Page 88 Mental Illness Inquiry granted leave of absence or discharge from a hospital with the written consent of the Director of Psychiatric Services. Patients other than restricted patients may be discharged from hospital by the medical authorities, by an authorised person or by the patient's nearest relative. However, in the case of discharge by a relative or authorised person, at least 72 hours notice must be given in writing to the hospital administrator. During that period the designated medical practitioner may furnish to the hospital administrator a report certifying that, in his or her opinion, the patient 'if discharged would be likely to act in a manner which is dangerous to himself or to other persons.' In this case the discharge cannot proceed and the relative or authorised person may not seek discharge again for a period of three months. Where discharge is refused in this fashion, there is a right of review by the Patient Review Tribunal. Treatment The Queensland Mental Health Services Act describes voluntary admissions as being for those who 'are in need of treatment for mental illness' and regulated admissions as being 'for treatment of mental illness'. The Act does not provide for treatment outside the context of the hospital, with the exception of the leave provisions outlined above. There is no express provision authorising treatment in any form or limiting the form or the circumstances of such treatment. An enabling provision, allowing the Governor to declare 'any surgical, procedural medical or therapeutic intervention' to be a 'proscribed treatment', does not appear to have been used. Neither the Act nor the Regulations contain prohibition or restriction on the use of electro convulsive therapy or psychosurgery. Under the Mental Health Services Regulations 1985 there are detailed provisions for the use of seclusion of patients. These include the requirement of an order by the medical superintendent or doctor in charge of the patient's treatment, except in a case involving extreme violence. The order for seclusion must specify the extent of observation, medical and nursing treatment and supervision to be provided to the patient and the period for which the patient is to be secluded. A register must be kept containing particulars of the use of seclusion. There is no reference in the Act or Regulations to informed consent nor is there any provision which authorises treatment in terms which clearly indicate an intention that a patient, on admission, loses his or her common law right to refuse treatment. Voluntary patients, who are capable of discharging themselves, would almost certainly retain the right to refuse treatment. The position of involuntary patients is less clear.39 There is a general provision exempting Human Rights and Equal Opportunity Commission Page 89 from any liability actions done 'in good faith and without negligence' in the exercise of powers under the Act, including the use of 'force that is reasonably necessary in the circumstances and does not cause...death or grievous bodily harm'. This, however, does not constitute an express authorisation or justification of the use of force to administer medication or any other form of treatment to a patient, as was pointed out by Mr Carter, QC in the report of the inquiry into Ward 10B of Townsville General Hospital.40 Forensic Patients A person charged with or convicted of a criminal offence may be admitted under the Queensland Mental Health Services Act to an ordinary psychiatric hospital or to a security patients' hospital if he or she is suffering from a mental illness 'of a nature or to a degree that warrants detention in a hospital' and where he or she 'ought to be so detained in the interests of his own welfare and with a view to the protection of other persons'.41 The Act provides that such patients are to be treated as restricted patients. Security patients' hospitals are established under both the Prisons Act 1958 — 1974 and the Mental Health Services Act. The Regulations under the Mental Health Services Act give the medical superintendent of a security patients' hospital the responsibility in relation to treatment of patients and the supervision of medical and other staff engaged in treatment; and give to the Comptroller of Prisons the responsibility in matters relating to the safe custody of patients and the security of the hospital. The Regulations allow for the superintendent to refuse to grant permission to visit. Patients' mail at a security patients' hospital may be examined and withheld. Restricted patients are subject to significantly greater limitations on leave and discharge. In particular, written consent of the Director General of Health is required for leave or discharge. There is a conspicuous absence of provision for positive rights for restricted patients other than rights of review. The Queensland Mental Health Services Act allows justices, acting on the evidence of two doctors, to admit a person before them charged with a summary offence to a hospital other than a security patients' hospital as a restricted patient. Following the admission of such a patient, a psychiatrist must conduct an examination and report to the Director of Psychiatric Services who must, in turn, report to the Minister for Justice. The Minister for Justice in relation to a patient charged with a summary offence, may direct that the hearing of the complaint may not proceed; may direct that the hearing should proceed if the patient is no longer detained; or may defer the determination for up to three months in which case the Minister is required to refer to the Patient Page 90 Mental Illness Inquiry Review Tribunal the question of the patient's mental condition. The Tribunal, after consideration of all material that it considers relevant, shall report to the Minister on the mental condition of the patient and state whether, in its opinion, the patient needs to be further detained on account of mental illness and whether he or she is fit for trial. If the Tribunal reports that in its opinion the patient requires further detention on account of mental illness or is not fit for trial, the complaint against the patient is deemed to have been dismissed and the patient continues to be detained as an involuntary patient but not as a restricted patient. In the case of patients charged with indictable offences, the procedure is similar except that they are to be admitted to security patients' hospitals and the body to which the question of the patient's mental condition may be referred is the Mental Health Tribunal. If this Tribunal finds that the person was not suffering from unsoundness of mind at the time of the offence, it shall inquire and determine whether he or she was suffering from diminished responsibility. If the person is found by the Tribunal to be fit for trial and not to have been suffering from unsoundness of mind at the material time, the proceedings are to continue according to law. Where, however, the Mental Health Tribunal does not find the person fit for trial, it shall order that the person be detained as a restricted patient in a security patients' hospital or in some other hospital. The Patient Review Tribunal is required to review the fitness of the patient for trial once every three months for the first 12 months from the time of the Mental Health Tribunal's order for detention, and thereafter at 'reasonable' periods. If the Patient Review Tribunal finds that it is unlikely that the person will be fit for trial within a reasonable time, it shall report to the Minister for Justice who shall report to the Governor with a recommendation as to the continuance or discontinuance of proceedings against the person. The Governor in Council may order discontinuance of proceedings or defer the question of continuance for a period not exceeding six months at any one time. There are similarly detailed provisions under the Queensland Mental Health Services Act relating to persons who are mentally ill while imprisoned on remand, either awaiting trial or awaiting sentence. There are also provisions dealing with the admission of persons found not guilty on the basis of unsoundness of mind and the admission of prisoners serving a sentence of imprisonment or detention following conviction for an offence. Such persons are to be detained in a security patients' hospital or other hospital pursuant to an order of the court or of the Governor in Council, and are to be treated as restricted patients. Their mental condition is to be reviewed at least every 12 months by the Patient Review Tribunal. The Tribunal may make a recommen- Human Rights and Equal Opportunity Commission Page 91 dation to the Parole Board for the release of a patient found not guilty on the basis of unsoundness of mind. Monitoring and Complaint Handling Mechanisms The Queensland Mental Health Services Act provides for the Governor in Council to appoint two or more official visitors in relation to any hospital. One of these is to be a medical practitioner or a person qualified to practice a profession that requires a special knowledge and interest with respect to mental health; and the other is to be a barrister, solicitor, magistrate or person qualified for appointment as stipendiary magistrate. Official visitors are required to visit the hospital to which they are appointed at least once a month and make special visits as the Minister or Director General or Director of Psychiatric Services may direct. Reports made by official visitors after each visit are to be furnished, in the case of a visit made at the direction of the Minister or Director General, to the Minister or Director General as the case may be, and otherwise to the Director of Psychiatric Services. The functions, powers and duties of Official Visitors are set out in the Mental Health Services Regulations 1985, together with the requirements that the hospital administrator facilitate performance of those functions and duties. The official visitors are required to inspect the registers, books and records kept in accordance with the Act (including the medical recommendations and applications for involuntary admission) as well as inspecting every part of the hospital and every patient. The ACT provides for the Governor in Council to establish psychiatric hospitals and security patients' hospitals and other such places as he or she thinks fit for the purposes of the Act. The Governor in Council is given power under the Act to declare that any such hospital or other place shall cease to be a psychiatric hospital, security patients' hospital or other place. The Act does not provide criteria upon which such declarations are to be based. The Mental Health Services Regulations 1985 set out certain requirements for the administration of psychiatric hospitals, security patients' hospitals and other places established under the Act. These consist of the general duties and responsibilities of the medical superintendent of a hospital or establishment; duties and responsibilities of a manager; and duties and responsibilities of a principal nurse. There is a penalty of $200 for breach of these Regulations. The Act gives the Director General of Health discretionary powers to visit and inspect without notice every hospital as he or she thinks necessary or as directed by the Minister. The Director General also has the Powers of a Commissioner under the Queensland Commissions of Inquiry Act 1950 for the purposes of inspection. Page 92 Mental Illness Inquiry In 1991 the Health Rights Commission Act was passed by the Queensland Parliament, establishing an independent body with broad functions including the handling of health service complaints; identifying and reviewing issues arising out of such complaints and suggesting ways of improving health services and preserving and increasing 'health rights.' The Commissioner is appointed by the Governor in Council to head the Commission.42 There is an express requirement that in the performance of the functions of office the Commissioner is required to Act 'independently, impartially and in the public interest.' Guardianship and Management of Property The Queensland Mental Health Services Act gives to the designated medical practitioner the power to form an opinion when a person is admitted to a hospital as to whether that person is capable of managing his or her estate. No criteria are set out in the Act for this opinion. The Act requires the designated medical practitioner to notify the Public Trustee in writing 'forthwith' when the practitioner is of the opinion that a patient is incapable of managing his or her property and affairs. The Public Trustee shall 'without further or other authority, manage the estate' of every person of whose incapacity the Public Trustee has been notified or who is declared by the Supreme Court to be incapable. The Supreme Court has the power, on the application of the Public Trustee or of any other person, to appoint another person as well as or instead of the Public Trustee to manage the estate of a patient. The Court shall not appoint any person other than the Public Trustee for this purpose 'unless the court finds that there is sufficient reason why such person should be so appointed in preference to the Public Trustee.' Management of the 'property and affairs' of a patient does not, however, involve guardianship. Queensland legislation contains no provision for guardianship for people with mental illness. The Intellectually Disabled Citizens Act 1985 does not extend to persons whose incapacity is purely a result of mental illness.43 Anti-Discrimination Legislation The Queensland Anti-Discrimination Act of 1991 covers discrimination on the ground of impairment, which is defined to include 'a condition, illness or disease that impairs a person's thought processes, perception of reality, emotions or judgement or that results in disturbed behaviour'. It covers discrimination in the following areas: work, education, goods and services, superannuation and insurance, disposition of land, club membership, administration of State laws and programs and local government. Human Rights and Equal Opportunity Commission Page 93 South Australia The SA Mental Health Act 1977 (the Act) is unusual in the prominent role it accords to the Guardianship Board established under the Act. This role has been reviewed and legislation has been tabled in Parliament which would establish a new Guardianship Board under separate legislation, subsuming powers currently exercised by the Mental Health Review Tribunal. Voluntary Admission The Act provides for a person to be admitted at their own request as a patient in an approved hospital. The Act also provides for such a patient to leave the hospital at any time.44 Involuntary Admission The Act enables a doctor to make an order for immediate admission and detention of a person in an approved hospital where he or she is satisfied that the following criteria are applicable: (a) that the person is suffering from mental illness that requires immediate treatment; (b) that such treatment can be obtained by admission to and detention in an approved hospital; and (c) that the person should be admitted as a patient in an approved hospital in the interests of his or her own health and safety or for the protection of other persons. The Act defines mental illness as 'any illness or disorder of the mind'.45 An order made by a doctor on these criteria is sufficient to detain a person for up to three days. The Act further provides that where possible within 24 hours of admission and otherwise as soon as practicable after admission a person detained under such an order must be examined by a psychiatrist. After this examination, the psychiatrist may, if satisfied that the continued detention of the patient is justified, confirm the order or, if not so satisfied, discharge the order. Confirmation of the order authorises detention for a period of up to 21 days from the expiry of the initial order. The Act requires that if two psychiatrists, after independent examination of the patient, agree that 'further detention is necessary for the protection of others' they may make an order for further detention of the patient. This provision does not set any limit on the duration of such continued detention. Although it requires that the patient be detained under a previous order the only criterion specified for further detention is that it is necessary for the protection of others. Page 94 Mental Illness Inquiry Another means by which a person may be involuntarily detained under the Act is by order of the Guardianship Board. After receiving a person into guardianship the Board may require that the protected person 'be received into a specified hospital...or other institution for treatment or care' and that the protected person be placed in the custody of the person for the time being in charge of that hospital or other institution. In order to receive a person into its guardianship, the Board must be satisfied that the individual is suffering from mental illness and is therefore incapable of looking after their own health or safety or managing their own affairs. There are general principles the Board must consider before making any order in relation to a protected person. These involve balancing 'the object of minimising interference with the rights and independence of the person with proper protection and control' and treating 'the welfare of the person as the paramount consideration.' There are, however, no specific criteria for making an order to involuntarily admit a protected person to a psychiatric hospital. Discharge, Leave, Transfer and Review A person involuntarily detained under the Act must be discharged if the examining psychiatrist does not confirm the detention within three days. Thereafter, an involuntary patient may be discharged at any time by the superintendent or, in the case of a further detention order made by two psychiatrists, the Mental Health Review Tribunal. Where a person has been detained in an approved hospital pursuant to a further detention order under the Act, the superintendent may permit that person to take leave from the hospital for up to six months. The superintendent may impose such conditions on the leave as he or she thinks fit and may revoke the leave at any time. Under the Act, the superintendent of an approved hospital may decline to admit a patient on the basis that the hospital lacks proper facilities for their care and treatment, but must immediately make arrangements for their admission to another approved hospital. A patient detained in an approved hospital may also be transferred to another hospital if the superintendent is satisfied that that hospital is better equipped for the care and treatment of that patient. The Act establishes a Mental Health Review Tribunal, consisting of three members appointed by the Governor. The Chairman of the Tribunal must be a Judge, magistrate or senior legal practitioner. Members may be removed from office by the Governor on specified grounds. The Tribunal is given powers to compel witnesses to attend and to produce evidence. Human Rights and Equal Opportunity Commission Page 95 The Act requires that the Tribunal review the circumstances of detention or custody of a person detained in an approved hospital or a protected person placed in the custody of another person within two months of admission,46 and thereafter at least every six months. The Tribunal has the power to extend the review period to a maximum of 12 months. The Tribunal must discharge an order for detention or custody unless satisfied that there is good cause for continuing detention of the patient or custody of the protected person. Provision is made for an appeal by the patient, a relative, the Director of Mental Health Services or any other person the Tribunal considers to have a proper interest in the care and protection of the patient, against the detention of a patient in an approved hospital. There is also provision for an appeal to the Tribunal against an order of the Guardianship Board receiving a person into the guardianship of the Board or placing a protected person in the custody of another person. The Tribunal has the power to affirm, vary or revoke an order made by the Guardianship Board. The Act provides for appeals to the Supreme Court by any person aggrieved by a decision or order of the Mental Health Review Tribunal. There is a statutory right of representation by counsel before the Mental Health Review Tribunal or the Supreme Court. The Act also provides that where a person is not represented at his or her own expense, counsel may be chosen by that person or by the Law Society of SA from a panel of practitioners willing to undertake such matters. There is statutory provision for payment of the fees of legal practitioners chosen from the Law Society panel. The provisions of the Act stipulating the powers of the Guardianship Board require the Board to review the circumstances of a protected person at reasonable intervals.47 Treatment The only statutory requirements for informed consent in the South Australian legislation are those for ECT and psychosurgery and those which provide for consent to medical and dental procedures to be carried out on persons suffering from mental illness who are incapable of giving effective consent on their own behalf. Provision is made for an emergency medical procedure to be undertaken without consent where the doctor carrying it out (and, where practicable, a second doctor) considers the procedure necessary 'to meet imminent risk to the person's life or health'. In all cases other than emergencies, and sterilisation and termination of pregnancy (for which special provisions are made), the Page 96 Mental Illness Inquiry Guardianship Board may either give consent on behalf of those incapable of effectively consenting themselves or appoint a delegate to do so. Delegates may be family members or institutional caregivers. They are appointed on a continuing basis and the delegation is reviewed by the Board after five years, or earlier if the Board considers the delegate is not acting in the best interests of the individual. Although the definition of medical procedure does not explicitly exclude psychiatric treatment, this is not considered to be covered by these provisions since the only 'procedures' in the strict sense of this word are ECT and psychosurgery which are subject to specific requirements. The criteria for involuntary admission under the Act include the need for treatment for mental illness and the opportunity to obtain it at an approved hospital. Alternatively, the Guardianship Board, after receiving someone into guardianship on grounds including incapacity, may order them placed in a hospital or other institution. The Guardianship Board also has power to order that the 'protected person' receive 'medical or psychiatric treatment'. This combination of powers in the Board is probably sufficient to displace a common law right of informed consent. It is not clear, however, that involuntary admission by a doctor who expresses an opinion as to the need for and availability of treatment is sufficient basis for abrogation of the right to informed consent in relation to any and every form of treatment administered in the course of the detention. The Act, as amended in 1985, states that the provisions relating to consent by the Guardianship Board to medical or dental procedures apply 'whether or not the person [who is incapable of consenting] is a protected person'. This appears to indicate an intention that the Guardianship Board exercise power to consent without having necessarily received the person concerned into its Guardianship. However, there is no express provision in the Act that confers separate power on the Board to give consent to medical or dental procedures for such persons, merely a provision deeming consent by the Board to be consent given by the person and to have the same effect as if the person were incapable of giving effective consent. In practice, the Guardianship Board makes determinations consenting to medical and dental treatment, and about delegation of consent, without having received the persons concerned into guardianship. Human Rights and Equal Opportunity Commission Page 97 Forensic Patients It has been South Australia's view that forensic psychiatric treatment facilities should be within the health care system rather than the custodial system...48 Under the SA Criminal Law Consolidation Act 1935, a person acquitted 'on the ground of insanity' or found insane 'so that he cannot be tried', must be held in strict custody 'until the Governor's Pleasure is known'. The same Act provides for the Governor to release such persons on licence on the recommendation of the Parole Board. A separate piece of legislation, the Mental Health (Supplementary) Provisions Act 1935, makes provision for 'criminal mental defectives'. The Act provides for the proclamation of hospitals to receive people believed or determined to have mental illness and accused or convicted of criminal offences under Ministerial order for indeterminate periods. However, there are no longer any hospitals proclaimed under the Act. The only facility in SA for forensic patients is James Nash House, which is approved as a psychiatric hospital under the Mental Health Act but administered by the Department of Corrective Services. Admission to James Nash House is either by court order or, as for other approved hospitals, as a voluntary or involuntary patient under the Mental Health Act. Forensic patients have the same rights as those afforded to other patients under the Mental Health Act apart from limitations arising from the prison sentences in relation to matters such as transfer, leave or discharge. Persons ordered by the courts to be held in strict custody at the Governor's pleasure may be admitted to James Nash House. The powers of the Guardianship Board under the Mental Health Act extend to prisoners with mental illness. These powers may be used where treatment or care is required that would not otherwise be available. Monitoring and Complaint Handling Mechanisms Under the SA Mental Health Act, the Minister may declare, by notice in the Gazette, any hospital, clinic or other premises to be an approved hospital for the care and treatment of persons with mental illness. The Minister may also vary or revoke such a notice. The Act does not contain any mechanisms for monitoring standards in approved hospitals, other than to require the superintendent of every approved hospital to keep records in prescribed form for every patient admitted. These records must contain the patient's name and address; the nature of any mental or physical condition suffered by the patient; full particulars of treatment given and the authorisation for that treatment; the Page 98 Mental Illness Inquiry date and cause of death of any patient; and such other information as may be prescribed. The Act contains an express statement of statutory objectives. However, these are couched in general terms and would provide little assistance in terms of accountability for hospitals or other mental health services. Provisions are made under the Act for licensing premises, other than hospitals, which provide accommodation for persons subject to detention under the Act. Such licences are granted for use of the premises as psychiatric rehabilitation centres. Licences must be renewed annually and may contain conditions concerning the staff employed by the centre and their qualifications; class or classes of persons permitted to reside at the centres; the numbers of people to receive care; standards of accommodation and facilities provided; the standard of diet provided; compliance with directions as to care and treatment; and such other conditions as the Minister may think fit. The Health Standards Committee, consisting of representatives of the Health Commission, the Community Accommodation Support Scheme and health professionals has been established by the SA Health Commission to assist in the licensing of psychiatric rehabilitation centres. The Mental Health Act does not contain provisions for official visitors or any similar mechanism for handling complaints or monitoring standards. The Health Advice and Complaints Service established by the SA Health Commission has no statutory basis and its role is presently under review. Guardianship and Administration Guardianship orders as they are in our legislation are very broad band sort of orders and so to some extent that's a restriction on people's rights. What they're wanting is treatment and what they're getting is a general sort of guardianship order.49 The Guardianship Board, which is constituted under the SA Mental Health Act, consists of five members, appointed by the Governor for a term of up to three years. The term may be renewed or a member may be removed by the Governor on specified grounds. The Chairman of the Board must be a Judge, magistrate or senior legal practitioner. The Act provides for the Board to conduct its proceedings as it thinks fit. It has the power to require the production of evidence or the attendance of any person and must afford anyone whose protection is the subject of proceedings an opportunity to appear and make representations to a court. Human Rights and Equal Opportunity Commission Page 99 As noted above, the Guardianship Board is empowered to receive into its guardianship a person who it is satisfied: (a) is suffering from a mental illness; (b) is, as a result, incapable of looking after his or her own health or safety; and (c) is incapable of managing his or her own affairs. As guardian, the Board may: (a) by order, place the protected person in the care and custody of a relative...or some other person, who, in the opinion of the Board, will take the proper care of the protected person; (b) by order, require that the protected person be received into specified hospital, hostel, home or other institution for treatment or care and place the protected person in the custody of the person for the time being in charge of that hospital, hostel, home or other institution; (c) give directions as to the upbringing, education, and training of the protected person; (d) require that the protected person receive medical psychiatric treatment'. The Guardianship Board may also exercise any other power which the courts would confer on a guardian. The Board is required to review the circumstances of the protected person under its guardianship at reasonable intervals and may vary or revoke any of its orders. The SA Mental Health Act also empowers the Guardianship Board to appoint an administrator where, in the Board's opinion, a person is suffering from a mental illness and is incapable of administering their own affairs. The Act requires the Public Trustee to be appointed as an administrator unless the Board considers there is some other reason to appoint another person. Anti-Discrimination Legislation At present the SA Equal Opportunity Commission Act expressly excludes mental illness as a ground of discrimination covered by the Act. The Inquiry was advised that a report by a departmental working party has recently recommended coverage of mental illness by the Equal Opportunity Commission Act and this is under consideration. Page 100 Mental Illness Inquiry Western Australia The WA Mental Health Act 1962 shows its age in its broad and circular definition of mental illness and relative paucity of provisions providing safeguards for patients' rights. It does not establish a specialist tribunal. It is, however, clear and concise (increasing the likelihood of compliance with its requirements) and does provide basic safeguards. Legislative provision for guardianship is now available under the Guardianship and Administration Act 1990. Voluntary Admission The WA Mental Health Act (the Act) allows the voluntary admission of a person who 'is, or who appears to be, suffering from mental disorder', in the opinion of the superintendent or another psychiatrist. Such admission requires a request by the prospective patient or, in the case of a person under 18, a request from a parent or guardian. An individual over 18 who requests admission must, in the opinion of the superintendent or psychiatrist, be able to understand the nature and effect of the request. A voluntary patient may not simply leave the hospital at will. An application for discharge may be made by the patient or by the parent or guardian at whose request the patient was admitted, and the patient must then be discharged within 72 hours. Alternatively, a voluntary patient may be discharged by order of the superintendent or Director of Mental Health Services (the Director). Involuntary Admission There are frequently long delays between the onset of the psychotic episode and the patient getting the treatment. Usually what was required for steps to be taken to get that person to hospital was some form of abnormal behaviour which was seen to be unacceptable, dangerous or disruptive to society which would then mobilise the authorities... These delays usually lead to immense and largely unnecessary suffering on the part of the individual patient and his or her family including breakdown in family relationships and financial disaster...50 The Act provides for involuntary admission either by referral of a doctor or by order of a justice. The doctor must have personally examined the person to be detained within 14 days of admission and must be of the opinion that the person 'appears to be suffering from mental disorder...and should be admitted for treatment to an approved hospital.' Such a referral is authority for the individual to be received and detained at a psychiatric hospital for up to 72 hours 'for observation'. During this time the person must be examined by the superintendent or another psychiatrist. If, after this examination, the superin- Human Rights and Equal Opportunity Commission Page 101 tendent or other psychiatrist is of the opinion that the referred person needs to be treated in an approved hospital, the person must be admitted as a patient. Otherwise the person must leave the hospital. The other method provided under the Act for involuntary admission is by application made by any person to a justice for a reception order. If the justice is satisfied that the person 'is suffering from mental disorder and in the interests of that person or of the public he should be admitted to an approved hospital for treatment under this Act', the justice may order that the person be taken to and received into an approved hospital. The justice may only make such an order on the basis of a referral from a doctor who has, in the 14 days immediately prior to the application, personally examined the person whose admission is sought, and expressed the opinion that this person is suffering from mental disorder. The Act also enables a justice to order the apprehension of a person by a police officer or other duly authorised person for the purpose of having that person examined by a doctor, where a complaint has been made on oath before the justice that the person concerned appears to be suffering from mental disorder and: (a) is without sufficient means of support; (b) is wandering at large; or (c) has been discovered under circumstances that denote a purpose of committing an offence against the law, or of attempting to take his own life'. If the doctor who conducts an examination in these circumstances considers the person to be suffering from a mental disorder, the doctor must refer the person to an approved hospital. Provisions are also made for the Director, any other departmental officer or a police officer to make a complaint on notice before a justice if he or she has reason to suspect that a person who appears to be suffering from a mental disorder: (a) is not under proper care or control; or (b) is cruelly treated or neglected by any person having or assuming the charge of him; or (c) is detained in contravention of any of the provisions of [the] Act'. An order made under these circumstances authorises entry (by force if necessary) by a police officer accompanied by a doctor and referral of the person to an approved hospital if the doctor considers the person appears to be suffering from a mental disorder. A person taken to an approved hospital may be admitted for observation for a period of not more than 72 hours during which time they must be examined by the superintendent or another psychiatrist. If the superintendent or other psychiatrist considers the person needs to be treated as an inpatient under the Page 102 Mental Illness Inquiry Act, the person must be admitted as a patient. Otherwise the person must leave the hospital. A person admitted on the referral of a doctor or on the order of a justice is considered to be 'detained' under the Act. A patient may initially be detained for a period of up to six months from admission. Detention is renewable for periods of 12 months at a time 'if the superintendent, on the advice in writing of another psychiatrist, is of the opinion that it is in the interest of the patient' to do so. Discharge, Transfer, Leave and Review The Act provides for a patient detained under the Act to be discharged by order of the superintendent to 'aftercare'. This is a form of continued supervision or treatment outside the hospital and may be ordered under the following conditions: (a) under the supervision of the superintendent or any other medical officer of the department; or (b) under the supervision of a medical practitioner, or other suitable person, willing to undertake it; or (c) at the superintendent's discretion, without supervision'. The period for which aftercare may be ordered is the balance of the period, or the extended period, during which the patient is liable to be detained under the Act. Provision is made for the superintendent to grant an involuntary patient leave of absence 'upon such conditions as to treatment, custody, conduct or behaviour' as the superintendent thinks fit. The Act provides for a patient to be transferred from one approved hospital to another by order of the Director. Provisions under the Act for discharge of involuntary patients, as for voluntary patients, require an order of the superintendent or Director of Psychiatric Services or an application for discharge by the patient or other person. An involuntary patient may be discharged 72 hours after such an application is made unless the superintendent refuses the application on any of the following grounds: Human Rights and Equal Opportunity Commission Page 103 (a) the discharge of the patient would be to the serious detriment of the patient or of the public; (b) adequate and satisfactory arrangements have not been made for the care, after discharge, of the patient; (c) the applicant is not a suitable person to exercise the care of the patient; (d) in the case of a person under the age of 18 years, the applicant is not the parent, guardian or other person who has the legal custody of the patient'. The superintendent must state the reasons for refusing an application for discharge and the applicant may appeal to the Director against the refusal. The Director must give the applicant an opportunity to be heard before deciding whether or not to discharge the patient. Provision is also made under the Act for discharge of an involuntary patient by the Board of Visitors,51 an independent body consisting of five members appointed to each hospital under the Act. The Board members are appointed by the Governor and include a legal practitioner, two medical practitioners and two other persons, one of whom must be a woman. The Act provides that three members constitute a quorum and the Board has discretion to conduct proceedings 'in such manner as may be prescribed and, until prescribed, as the Board determines'. No regulations or other prescriptions have been made limiting this discretion. In addition, there are no statutory rights to representation in such proceedings; or rights of access to records or other evidence. The Act requires the Board to report to the Minister but makes no mention of providing the patient or other applicant with a written statement of decision or reasons. The Board has the power, of its own motion or on application, to consider the case of any involuntary patient and order their discharge, notwithstanding refusal by the superintendent of an application for discharge.52 The Act requires the Board to inform the Minister and the Director of any decision it makes which countermands an order made by the superintendent. The Act also allows any person to apply to the Supreme Court for discharge of a patient detained in any approved hospital or discharged to aftercare. The Court is empowered by the Act to hear such applications. Such hearings must be in camera. There is no statutory right to representation or access to records or other evidence. However, these may be imported by the application of the common law rules of natural justice in the context of judicial proceedings. Page 104 Mental Illness Inquiry Treatment Other than a provision enabling the making of regulations, which has not been utilised, the only references in the Act to treatment are in those provisions which stipulate the criteria for admission. Admission by referral of a doctor requires the practitioner to believe that a person suffering from mental disorder should be 'admitted for treatment'. Admission by reception order requires the justice to be satisfied that a person suffering from mental disorder should be admitted to an approved hospital 'for treatment'. The provisions of the Act allowing for voluntary admission, by contrast, make no reference to treatment. However, as noted above, a voluntary patient cannot leave without an order for discharge or a delay of 72 hours. Voluntary patients may, nevertheless, retain their right at common law to refuse treatment. The position is less clear in relation to involuntary patients. As noted above, the Act specifically provides that patients admitted involuntarily by medical referral or judicial reception order are 'detained'. That provision, combined with the express reference to treatment as the purpose of involuntary admission, may be taken to indicate an intention to abrogate the common law right to refuse treatment. There is, however, no definitive statement relating to consent other than the Regulation giving the Director the right to consent to any surgical operation considered necessary for a patient under the Act. Neither the Act nor its Regulations contain any prohibitions on ECT, psychosurgery or any other form of treatment. There are Regulations requiring the superintendent of a hospital to make 'such arrangements as he considers necessary for the safety and security of patients showing suicidal or homicidal tendency or making attempts to escape'. There is also a prohibition in the Regulations on restraint or seclusion of a patient without an order from a medical officer. An exception allows a matron, head male nurse or deputy to use restraint or seclusion in circumstances that require immediate action, provided a medical officer is immediately informed. Forensic Patients There is a move to de-politicise a whole lot of things to do with the criminal justice system but for some reason or other this system of governor's pleasure detention...has resisted that particular move.53 The WA Mental Health Act confers on courts of summary jurisdiction the power to remand someone charged with a summary offence for up to 28 days. Human Rights and Equal Opportunity Commission Page 105 The person may be remanded on bail, to be examined by a doctor, or in custody for reception into an approved hospital for observation. Following examination under these provisions, a person may be referred to an approved hospital by the doctor; received at that hospital for observation for a period not exceeding 72 hours; and admitted as an inpatient under the Act if, in the opinion of the superintendent or another psychiatrist, the person is in need of treatment under the Act. The person remanded in custody for observation in an approved hospital may also be admitted as a patient if the superintendent considers he or she is suffering from a mental disorder. The superintendent is required by the Act to inform the court prior to discharge of such a patient and, if required to do so by the court, 'discharge the person into his former custody'. The Act also provides for a person found not fit to stand trial by means of mental disorder after having been committed for an indictable offence to be admitted by the Chief Secretary to a psychiatric hospital as a security patient. The duration of such detention is to be determined by the Chief Secretary, acting on the advice of the superintendent or another psychiatrist. A security patient may, if found fit, stand trial. On discharge, a security patient is to be returned 'whence he came prior to admission'. The Chief Secretary's decision to discharge a security patient must be based on the advice of the superintendent or another psychiatrist. Where a person has been found not guilty on the grounds of mental illness, the Act permits the court to order the person held in custody at the Governor's pleasure. The Act confers a discretion on the Governor to order the admission of such a person to an approved hospital as a security patient and to discharge that person 'as he thinks fit'. The provisions of the Act relating to leave and discharge for other involuntary patients do not apply to security patients. The WA Prisons Act 1903-1971 provides that a prisoner may be transferred, by order of the Director of the Prison Service or of a medical officer, to any hospital including a psychiatric hospital. The Prisons Act does not, however, provide any criteria to be applied when transferring prisoners to psychiatric hospitals. The Mental Health Act states that provision for voluntary admission and for admission by medical referral or judicial reception order under the Act are not applicable to sentenced or remand prisoners. Overall, there would appear to be no criteria for admission of prisoners to psychiatric hospitals. Page 106 Mental Illness Inquiry Monitoring and Complaint Handling Mechanisms The WA Mental Health Act provides for the establishment of hospitals for treatment of mental illness and the development of specialist facilities for children, old people and for alcoholics and drug addicts. The Act also provides for the establishment of day hospitals, day centres and outpatient facilities for welfare, rehabilitation and other specified purposes. Such hospitals, funded from State Consolidated Revenue, are referred to in the Act as 'approved hospitals' and it is expressly prohibited to detain a person under the Act other than in an approved hospital. However, the only provisions made in the Act for inspection or monitoring of these approved hospitals are those relating to the Boards of Visitors. The Director of Psychiatric Services is responsible to the Minister 'for the medical care and welfare of every person treated by the Department and for the proper operation of every approved hospital and every service established 'under the Act.' Apart from standard annual reporting requirements covering medical care and welfare of those treated under the Act, there are no statutory procedures governing accountability. The Act does contain detailed provisions for the approval of private hospitals. These include a report by the Director to the Minister setting out details of certain matters and the issue and annual review of permits and the annual payment of subsidies subject to regulations, conditions or directions by the Minister. There are no private psychiatric hospitals approved to admit involuntary patients in WA. The Boards of Visitors established under the Act monitor the standards of care and treatment in hospitals and provide a basic complaint handling service. The Boards are required to visit their hospital at least once a month and at other times as directed by the Minister. They interview any patients who wish to see them and receive complaints or recommendations concerning their welfare. The Boards have a discretion to make 'such inquiries, examinations and inspections as [they] may from time to time think necessary in the interests of patients'. They are also required to inspect every part of the hospital where patients are accommodated or which 'appertains to the welfare of patients', at least once every three months. Board members may order a patient to be examined by a psychiatrist and make comments and recommendations to the Minister concerning the welfare (but not the medical treatment) of patients or the management of a hospital. They may Human Rights and Equal Opportunity Commission Page 107 also furnish the Minister with a copy of a report of the psychiatric examination of any patient. Guardianship and Management The Guardianship and Administration Act was passed by the WA Parliament in 1990 and assented to in the same year. But it has not yet been fully implemented. It provides for the establishment of a Guardianship Board, consisting of a Chairman and two other members, appointed by the Governor. The Chairman is to be a Judge of the Supreme Court and there is also provision for appointment of a Judge as Deputy Chairman. The Act provides that in the performance of its functions, the Board must act according to the substantial merits of the case without regard to technicalities or legal forms and is not bound by the rules of evidence, with a discretion to inform itself on any matter in such manner as it thinks fit. The Board is not given the power to consent to medical treatment other than sterilisation for which special considerations apply. The Board is empowered to appoint a guardian where it is satisfied that a person is incapable of looking after their own health and safety; is unable to make reasonable judgements in respect of matters relating to his or her person; or is in need of oversight, care or control in the interest of their own safety or for the protection of others. The Board may only appoint a plenary guardian (ie with full powers) if appointment of a limited guardian would not be sufficient to meet the needs of the person in respect of whom the application is made. Plenary powers include the power to consent to any treatment or health care other than hospitalisation under the Mental Health Act. The guardian must be an individual over the age of 18 who has consented to act; who, in the opinion of the Board, will act in the best interests of the person in question; and who is not in a position of conflict of interest with that person. The Public Guardian may be appointed only if there is no other person suitable and willing to act. The Guardianship and Administration Act also empowers the Guardianship Board to appoint an administrator or joint administrators of someone's estate, if it is satisfied that that person is unable by reason of mental disorder, intellectual handicap or other mental disability to make reasonable judgements in respect of matters relating to all or any part of their estate and is in need of Page 108 Mental Illness Inquiry an administrator. The administrator may be an individual over the age of 18 or a corporate trustee. There is also provision under this Act for review of guardianship or administration orders by the Board. An appeal may be made to the Full Court of the Supreme Court against a determination made by the Guardianship Board with the leave of the court, on the grounds of error of law or fact, combined law and fact, or error of jurisdiction. Anti-Discrimination Legislation The WA Equal Opportunity Commission Act covers discrimination on the ground of impairment which is expressly defined to include 'any illness or condition which impairs a person's thought processes, perception of reality, emotion or judgement or which results in disturbed behaviour.' Tasmania In our view, mental health legislation should start with the principle that it is an extremely serious matter to deprive an individual of his liberty. Allowing for that, it should allow for prompt, effective action in an emergency to provide care and control of someone who has become acutely disturbed, allowing them to be taken to a place of safety and evaluated. It should provide some means of protecting those who have become mentally incompetent and it should provide effective means by which individuals' rights are protected and the actions of those who are placed in control of people who have become incompetent become accountable and able to be monitored. The current legislation fails rather dismally by any test.54 The Tasmanian Mental Health Act of 1963 (the Act), substantially based on the British Mental Health Act of 1959, lacks many of the safeguards to be found in more recent mental health legislation interstate. The scope of its provision is also inconsistent with modern developments in relation to mental illness. While it contains no definition of mental illness, it defines 'mental disorder' to include mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind. On the other hand, the Act establishes a Mental Health Review Tribunal with detailed procedural safeguards and also establishes a Guardianship Board. A comprehensive review of the Act has been undertaken and new legislation drafted. It has not, however, been implemented. Human Rights and Equal Opportunity Commission Page 109 Voluntary Admission The Act allows 'the patient who requires treatment for mental disorder' to be admitted to any hospital or other institution 'without any application, order or direction rendering him liable to be detained' under the Act and also allows a patient to remain in hospital after he or she has ceased to be liable for detention. In the case of a person between the ages of 16 and 18 years who is 'capable of expressing his own wishes' the Act further provides that arrangements for voluntary admission for psychiatric treatment may be 'made, carried out and determined notwithstanding any right of custody or control vested by law in his parent or guardian.' Involuntary Admission Under the Act a person may be involuntarily detained either 'for observation' or 'for treatment'. In either case an application for admission requires the recommendation of two doctors, one of whom is 'approved' by the Minister as having relevant specialist expertise. The medical recommendations must be made in prescribed form and by practitioners who have personally examined the patient within the previous seven days. The Act also prohibits the making of recommendations for admission by doctors who have any of a number of specified conflicts of interest in relation to the application or the person whose admission is sought. The grounds required for admission for observation under the Act are as follows: (a) that the person is suffering from a mental disorder of a nature or degree that warrants his or her detention under observation (with or without medical treatment) for at least a limited period; and (b) that the person so ought to be detained in the interest of his or her own health or safety or with a view to protection of other persons.' The duration of detention for observation on these grounds is up to 28 days. In cases of alleged necessity the Act provides for an emergency application to be made and stipulates that in such cases it is sufficient for the application to be founded on one medical recommendation. The Act does not specify the criteria on which an emergency application must be based. The person may be admitted for up to 72 hours upon the basis of an emergency application and if, during this period, a second medical recommendation is provided and the grounds for an application for admission for observation are made out in the medical recommendations, the person's detention may be extended for up to 28 days. Page 110 Mental Illness Inquiry The criteria for admission for treatment under the Act are substantially the same as those for observation, with the additional requirement that the person to be admitted is suffering either from mental illness or 'severe subnormality' or, in the case of a patient under 21 years of age, from 'psychopathic disorder'. The duration of involuntary admission for treatment under the Act is one year, renewable for a further year and thereafter for periods of two years. Renewal of detention is determined by the hospital authority — based on a report by the responsible medical officer following examination of the patient. The responsible medical officer is required to report on whether it is 'necessary in the interests of the patient's health or safety or for the protection of other persons that the patient should continue to be liable to be detained'. The hospital authority is required to inform a patient of the renewal of his or her detention and the patient is given a right to apply to the Mental Health Review Tribunal. Discharge, Leave, Transfer and Review In regard to appeals against mental health orders, the Tribunal has only one power: that of rescinding the order.55 Under the Act the patient may be discharged by the doctor responsible for his or treatment; by the hospital authority; by the Minister; or, in the case of admission for treatment, by the patient's nearest relative. However, the nearest relative may not discharge a patient within the first six months of renewal of detention by the hospital authority. Moreover, a relative wishing to discharge a patient must give 72 hours notice to the hospital authority. The hospital authority may veto the discharge if the responsible medical officer considers the patient 'would be likely to act in a manner dangerous to himself or to other persons'. The Act provides that a patient who is liable to be detained for observation or treatment may be transferred to another hospital or transferred into guardianship 'as if the application [for admission to hospital] were a guardianship application duly accepted at the time when he was originally admitted' to the hospital. The medical officer responsible for treatment or care of the patient involuntarily detained under the Act may grant that patient leave of absence from the hospital subject to such conditions as are considered necessary in the interests of the patient or the protection of others. The Act establishes a Mental Health Review Tribunal, consisting of legal, medical and other members appointed by the Governor. The terms of appointment, tenure and grounds for removal from office are not stipulated in Human Rights and Equal Opportunity Commission Page 111 the Act. The Tribunal's jurisdiction is limited to the hearing and determination of applications by patients against their detention, renewal of detention or reception into guardianship. The Tribunal is not given power to itself initiate review of detention orders. Provision is made under the Act for the Minister 'as he thinks fit, to refer to the Tribunal the case of any patient liable to detention or guardianship.' Patients are given the right to apply to the Tribunal within six months from the date of their initial involuntary detention or in relation to any renewal of involuntary detention. The Tribunal has power to direct that a patient be discharged if it is satisfied that the criteria for detention are not met. The procedural provisions relating to the Tasmanian Mental Health Review Tribunal are contained in Regulations proclaimed in 1964 under the Act. These establish a right to representation for applicants, but no provision is made for payment for such representatives. The Regulations provide for an applicant to make a written application, the form of which requires a special request to be made for a formal hearing. If a formal hearing is not requested the Tribunal is only required to give the applicant the opportunity of an interview. In any case in which an application for review is lodged, the Tribunal is required to notify interested parties. The hospital is required to provide the Tribunal with a statement of the relevant medical history of the patient and the reasons for the order or refusal to discharge. If a formal hearing has been requested, the hospital is also asked by the Tribunal for an opinion whether this would be 'detrimental to the applicant's health.' The Regulations give the Tribunal discretion to determine whether a formal hearing should be conducted. At a formal hearing, the applicant has the rights to: appear; be accompanied by another person; address the Tribunal and call witnesses. The Regulations give both the applicant and the hospital the right to question witnesses. The Tribunal is required to provide its decision and reasons in written form. These may be published, at the Tribunal's discretion. Treatment The Act does not make any express provision concerning the nature or quality of treatment to be administered to patients. Nor does it contain any prohibitions on any form of treatment other than 'mechanical means of bodily restraint or seclusion', which are permitted only where 'necessary for the purposes of treatment...or to prevent [a patient] from injuring himself or other persons or destroying property.' The use of seclusion or restraint also requires approval by the medical officer responsible for the patient's treatment. The Act does not contain any reference to ECT or psychosurgery. Page 112 Mental Illness Inquiry In relation to the provisions of the Act dealing with admission for treatment, the need for treatment for mental disorder is the stated reason for detention or for voluntary hospitalisation. While this may indicate an intention that treatment for such mental disorder could not be refused, the words lack the clarity that would normally be required to abrogate common law rights. Furthermore, in the absence of prohibitions or limitations on the form of treatment, it is not clear what scope of treatment a patient admitted for treatment may be required to submit to. In the case of patients admitted 'for observation', the Act expressly states that this may be 'with or without medical treatment'. This seems to leave no basis for argument that the legislation provides for the administration of treatment so as to override the common law right to refuse treatment. Forensic Patients Once a mentally ill patient falls into the criminal justice system, then I hold [that] the Mental Health Act and particularly the Mental Health Review Tribunal fail to uphold their rights.56 The Tasmanian Criminal Code contains provisions under which persons may be found by a court to be incapable of understanding proceedings after being charged with an offence or may be found to be not guilty of an offence by reason of insanity. These provisions confer power on the court to order 'that the accused person be dealt with as a mentally disordered person who has become subject to the criminal process.' Such an order authorises the Attorney- General to make a number of decisions concerning the disposition of the person concerned. The Attorney-General has an unfettered discretion as to whether and where to detain a 'mentally disordered person who has become subject to the criminal process'. In practice, most of these persons are placed under 'restriction orders', made pursuant to the Act, in a prison hospital which has been declared a 'special institution' under the Mental Health Act for the accommodation and medical treatment of persons detained in conditions of special security. The Mental Health Act also provides for 'restriction orders' and hospital orders to be made by the Supreme Court in respect of persons convicted of offences punishable by imprisonment. A court of petty sessions has power under the Act to make hospital orders or guardianship orders in relation to persons convicted of an offence punishable by imprisonment. The hospital order authorises detention in a specified institution, usually the prison hospital. A restriction order involves a number of limitations on the transfer, reclassification, leave of absence and discharge of a person detained. In particular, the Act requires that someone subject to a restriction order may only be discharged with a Human Rights and Equal Opportunity Commission Page 113 direction from the Governor on the recommendation of the Mental Health Review Tribunal. The Criminal Code provides for the Attorney-General to review fitness to stand trial. Such review must occur at quarterly intervals in the first year and annually thereafter. The Code provides for the Mental Health Review Tribunal to make recommendations to the Attorney General in relation to those found not guilty by reason of insanity and those found incapable of standing trial57 but the Tribunal does not have power to determine these cases. Their period of detention is subject to determination by the Governor. Monitoring and Complaint Handling Mechanisms The Act provides for the Minister to declare a hospital maintained by public funds to be a hospital for the purposes of the Act and also provides for the Minister to declare a place to be a 'special institution' if satisfied that it is 'suitable for the accommodation and medical treatment of persons who may become liable to be detained' under the Act and who need to be detained 'in conditions of special security'. There are, however, no other provisions in the Act relating to the standards or other conditions which need to be maintained by such hospitals or institutions. Administration of psychiatric services was until 1989 the responsibility of the Mental Health Services Commission, established under the Mental Health Services Act 1967'. Although not yet repealed, this Act no longer operates as the administrative functions of the Commission were transferred in 1991 to the Regional Health Boards. The Mental Health Act does not contain any provisions for monitoring standards of service in psychiatric institutions or handling complaints by consumers. Guardianship and Administration The Tasmanian Mental Health Act establishes a Guardianship Board consisting of nominees of the Departments of Community Services and of Health, together with three other persons appointed by the Governor. Applications may be made to the Guardianship Board concerning any person suffering or apparently suffering from mental illness. Such a person may be received into the guardianship of the Board itself or of any other person. The grounds on which a guardianship order may be made under the Act are as follows: Page 114 Mental Illness Inquiry (a) that the person is suffering from mental disorder (being a mental illness, psychopathic disorder or subnormality); and (b) that the disorder is of a nature and degree that warrant the reception of the person into guardianship; and (c) that it is necessary in the interests of the patient or the protection of other persons that the patient be received into guardianship. Incapacity is not mentioned as a ground for making a guardianship order. As with an application for involuntary admission, an application for a guardianship order must be supported by the recommendation of two doctors who have examined the person within the previous seven days. Although the decision to make a guardianship order is made by the Guardianship Board, the Act does not contain provision for a hearing or any other process or inquiry preceding the determination to make such an order.58 There is also provision under the Tasmanian Mental Health Act for orders to be made by the Supreme Court for the administration of a person's affairs or the management of a person's property. The Act provides for the court to appoint the Public Trustee or some other person to administer an estate. The court is also given power to appoint an officer of the court or some other suitable person 'to inquire into the case of the patient or into any matter relating to that person or his property or affairs and furnish to the court a report of his findings' to enable the court to act on those findings in the exercise of its protective jurisdiction. Provision is also made under the Mental Health Act for the Public Trustee, upon application, to issue a certificate of incapacity in respect of a person, if satisfied on the basis of affidavits from two doctors, that the person is, by reason of mental disorder, incapable of managing his or her property and affairs. There are no procedural safeguards specified in the Act in relation to the issue of such certificates by the Public Trustee. Anti-Discrimination Legislation Anti-discrimination legislation, covering psychiatric disability among other grounds, was introduced into the Tasmanian Parliament in 1991. However, this was not passed and it appears uncertain whether and in what form such legislation will proceed. Human Rights and Equal Opportunity Commission Page 115 Northern Territory The NT Mental Health Act 1980 is relatively brief and basic in its provisions for hospitalisation of people with mental illness. As in NSW, WA and the ACT the authority for involuntary detention is by Magisterial order. The NT legislation, however, extends the criminal process model further, using the term custody for involuntary detention and relying to a greater extent than elsewhere on warrants and the police force for the purpose of taking people with mental illness 'into custody' for 'care, treatment or control'. The criteria under the Act for involuntary admission are broad and there are no statutory definitions of mental illness or 'a mentally ill person.' Voluntary Admission The NT Mental Health Act allows the voluntary admission of a person to hospital and then to be discharged, 'subject to the reasonable rules of the hospital concerning admission and discharge', upon the person's request or, in the case of an infant, the request of the parent or guardian. However, the Act also requires that a person in charge of the hospital notify the Chief Medical Officer (CMO) of voluntary admissions and ensure that individuals so admitted have, within three days of admission, been 'psychiatrically examined by two medical practitioners acting independently of each other'. There is a general requirement that the person in charge shall not permit a person to remain in hospital for more than three days for 'observation, care, treatment or control as a mentally ill person' unless the CMO is satisfied that this is appropriate after sighting the reports of two medical practitioners who have conducted independent psychiatric examinations of the patient. The only exception to this requirement is for a patient who is 'capable of managing himself and his affairs'. The requirement applies equally to voluntary and involuntary patients. Involuntary Admission The Act provides for persons to be taken 'into custody' either by warrant or, in urgent cases, without a warrant and also provides for warrants to be obtained by telephone 'or otherwise' if it is 'impracticable to appear before a magistrate' to apply for the warrant. A magistrate may issue a warrant where, 'after reasonable inquiry', 'it is made to appear' that a person may be suffering from mental illness and, as a result, the person: Page 116 Mental Illness Inquiry (a) may require care, treatment or control; (b) may be incapable of managing him or herself or his or her affairs; (c) may be under inadequate care or control; or (d) may be likely, by act or neglect to cause death or serious bodily harm to him or herself or another person. The criteria for a person to be taken into custody under the Act without a warrant are substantially the same — with the addition of the need for immediate custody 'in his own interest or in the public interest'. The power to take a person into custody under the Act without a warrant is limited to members of the police force and doctors 'performing duty in or in the vicinity of a hospital'. The admission procedure for involuntary patients under the NT Mental Health Act requires that the CMO apply to a magistrate within three days 'or as soon as practicable' after a person is taken into custody under a warrant or, in the case of a person taken into custody without a warrant, within 24 hours or 'as soon as possible'. The CMO is required to give the magistrate a report on the following matters: (a) the mental health of the person taken into custody; (b) the care being given to and the control being exercised over that person; (c) the treatment, if any, that has been given to that person and whether that treatment was given as 'recognised standard treatment or on the authority of a magistrate, or as an emergency measure'; and (d) steps taken by the CMO to ascertain the existence of a near relative or other person who should be notified before an order is made for the person to be held in custody. The magistrate, 'after reasonable inquiry upon an application' in this form by the CMO, may make an order that the person be 'kept in custody for a period of observation, care, treatment or control' where it has been made to appear that the criteria for custody, as set out above in relation to the warrant, are satisfied. There is no express provision regarding the standard or onus of proof. Under normal rules of construction the onus will lie with the CMO, as applicant. However, whether the term 'made to appear' imports the civil standard (balance of probabilities) is less clear. Review, Discharge and Transfer Provision is made under the NT Mental Health Act for the CMO to review the cases of all patients, voluntary and involuntary, at intervals of not more than six months to determine whether they should be permitted to remain 'for Human Rights and Equal Opportunity Commission Page 117 observation, care, treatment or control' as mentally ill persons, on the basis of the reports of two doctors who have made independent psychiatric examinations of the patients. The Act also contains a requirement for the CMO to appear before a magistrate, at intervals of not more than six months for each patient, to report in the same terms as in the original application for custody and 'to apply for such further order, if any, as may be necessary to continue to keep the person in custody'. In relation to both the initial orders and any subsequent orders, the magistrate is empowered to decide that the person be kept in custody under the Act for a period of up to six months at any one time. The NT Act provides for review by the Supreme Court of any order made by a magistrate. An application may be made to the Supreme Court by the person who is the subject of the order, by the CMO, by a guardian or specified close relative of the person, or by any other person 'who in the opinion of the Supreme Court has by reason of tie by friendship or any other reason bona fide interest in the welfare of the person who is subject to the order'. The Supreme Court has power to rehear the application made before the magistrate and to exercise all relevant powers exercised by the magistrate in relation to such applications. The Supreme Court is required to ensure the representation of all persons considered by the court to have an interest in the application, unless the court is satisfied in the circumstances that such representation is unnecessary. There is no specialised review body for mental health matters under NT legislation. The procedural provisions for hearing applications under the NT Mental Health Act incorporate by reference the powers conferred upon magistrates under the Northern Territory Coroners Act as if an inquiry under the Mental Health Act were an inquest under the Coroners Act. In addition to the express requirement for the magistrate or court to require legal representation for parties to an inquiry, the magistrate or court has discretion under the Mental Health Act to appoint a legal representative for a person in custody, 'additional to the legal representation that, but for this Section, that person would have.' While the juxtaposition of the terms 'additional to' and 'but for' is rather paradoxical, this provision appears to allow the court to override the choice of legal representation made by a person in custody. Moreover, this provision is followed by another which allows a legal practitioner appointed to represent a person in custody to 'ask a court or magistrate to make or revoke an order under this Act'. This statutory statement of the role of the appointed representative makes no reference to obtaining instructions from the person held in custody. It is not clear whether it is intended that the statutory formulation of the appointed rep- Page 118 Mental Illness Inquiry resentative's role displaces the common law right of a represented person to instruct his or her representative. The Mental Health Act makes provision for the reasonable costs and disbursements of an appointed legal representative to be paid by the NT Government, at the court's discretion. There is no similar provision for payment of legal representatives chosen by the person in custody. Because the NT has only recently developed facilities for psychiatric care and treatment, and because it previously relied on services provided outside the Territory, the NT Mental Health Act makes provision for arrangements with other States and Territories for the transfer of persons for care, treatment, or control. Transfer of a person from the NT under such an arrangement must be authorised by order of a magistrate. A magistrate must not authorise the transfer of a person from the NT unless satisfied that the person will be returned at the request of the CMO; or that it is in the best interest of that person that he or she should cease to reside in the Northern Territory. Treatment The NT Mental Health Act confers power upon the magistrate, at any time after the issue of a warrant or making of an order under the Act, to make a further order in relation to that person authorising any of the following: (a) a treatment that may be given to that person; (b) an operation that may be performed on that person; (c) a procedure that may be carried out in respect of that person; (d) a method of control that may be exercised over that person; or (e) removal of that person from one hospital or place to another hospital or place (including a place outside the Northern Territory). The Act prohibits the CMO from allowing treatment, surgery, procedures or methods of control in respect of a person held in custody unless this has been specifically authorised by a magistrate, except in cases of emergency or in the case of treatment that is in the CMO's opinion a 'recognised standard medical treatment'. Furthermore, the CMO can only authorise treatment if one or more of the following circumstances apply: (a) if the patient is capable of managing his or her affairs; (b) if the CMO is satisfied on the basis of reports of two independent psychiatric examinations of the patient that the treatment will not be detrimental to the patient's best interests; (c) if the treatment is required urgently; or (d) if the treatment is recognised as 'standard medical treatment' and its use has been authorised as a matter of course. Human Rights and Equal Opportunity Commission Page 119 There are no specific provisions in the NT Mental Health Act in relation to electro convulsive surgery or psychosurgery. The Act does contain a prohibition on authorisation by a magistrate of treatment or surgery 'except for the purposes of treating an illness.' On the other hand, not only is the potential scope of the term 'standard medical treatment' very broad but the Act also expressly recognises that 'control' may be exercised over patients in the course of their 'custody' and that these concepts are distinct from 'treatment'. Provision is made under the Act for a person subject to a custody order to be permitted to leave the hospital 'in the course of his treatment'. A person given such leave 'shall not be held to have been released from custody or to have been removed from that hospital by reason that he be only so permitted to leave'. This allows for treatment outside the confines of the hospital while maintaining a measure of control or authority over the person. Forensic Patients The Northern Territory Criminal Code 1983 contains provisions for acquittal on the ground of 'insanity', resulting in an order for the person to be held in 'strict custody' at the Administrator's pleasure. There is no legislative provision for review of this detention. The Code also provides for an accused person to be found incapable of understanding criminal proceedings because of an 'abnormality of mind'. In such cases, the court has complete discretion to hold the person in custody or to deal with him in some other manner 'according to law'. Part IV of the NT Mental Health Act contains a number of provisions for psychiatric care, treatment or control of persons charged with or accused of criminal offences or in custody under sentence of imprisonment. The Act gives courts the power to adjourn proceedings at any stage while a person is receiving care, treatment or control for a mental illness. The court may also discharge a defendant without proceeding to conviction or, upon conviction without penalty, where a defendant is receiving or has received care, treatment or control for a mental illness. Execution of a sentence may be suspended by a court or a person may be released on a bond on condition that the defendant submit to care, treatment or control for mental illness. These powers all rely upon voluntary treatment. The court also has, however, the power to make an order for the care, treatment or control of a person who has a mental illness and who is in custody on remand or under sentence for a criminal offence. This includes the power to order that a person in such custody be 'cared for and controlled without his consent for a mental illness'. The criteria applicable to the making of such orders are the same as those applicable to involuntary detention of a civil patient. Review of involuntary detention of forensic patients Page 120 Mental Illness Inquiry by the CMO and by the court, at intervals of not more than six months, is also provided for in similar terms to the terms applicable to civil patients. A special provision is made for a person who is 'in custody, whether or not under sentence of imprisonment' (ie including remand prisoners) and who is in need of care, treatment or control for a mental illness to be the subject of an order by a court or magistrate for such care, treatment or control. Orders may include the following provisions: (a) that the person be not kept locked up; (b) that the person be not kept under close guard; (c) that the person be allowed freedom to leave the hospital at which he is receiving treatment; (d) that prison regulations be not applicable to the person while he is in hospital; (e) that the person be released on parole notwithstanding that the minimum term of imprisonment was not specified or that he has not completed his minimum term of imprisonment; (f) that the person be granted remission of sentence additional to the remissions that would otherwise be granted; or (g) that the person be released for a period while he receives care, treatment or control and that period in which he be released be counted as part of his sentence.' Monitoring and Complaint Handling Mechanisms The NT mental health legislation contains no mechanism for monitoring standards of mental health care or inspection of mental health services. There are no avenues provided under statute for complaints by consumers concerning such services. Guardianship and Management of Property Under the NT Mental Health Act there is a provision conferring on the CMO all the powers of a guardian in relation to the person, but not the property, of either a voluntary or involuntary patient who is in hospital for observation, care, treatment or control as a mentally ill person and who, in the opinion of the CMO, is 'incapable of managing himself or his affairs'. The CMO may exercise powers as guardian provided he or she is satisfied that no other person 'has custody of that patient' or that it would be impractical in the circumstances to contact that other person for reasons such as urgency or because the action to be taken is of a trivial nature. Approval of a court or Human Rights and Equal Opportunity Commission Page 121 magistrate is also required before the CMO exercises guardianship powers, except in the case of an emergency or where the action proposed is of a trivial nature and it is not practicable in all the circumstances to make an application to a court or magistrate in the time available. The NT Mental Health Act also gives Magistrates the power to order the release of a person in custody under the Act on conditions including the exercise by 'a relative or friend or other person' of 'powers of a parent' as though the person released 'were a child'. This is, in effect, a provision for guardianship in relation to release from detention. The NT Adult Guardianship Act 1988 makes provision for a scheme of guardianship to be provided through the Magistrate's Courts. However, this legislation is specifically limited to adults with an intellectual disability which is defined as 'resulting from an illness, injury, congenital disorder or organic deterioration or unknown origin' and by reason of which the person appears to be unable to make reasonable judgements or informed decisions relevant to daily living. This is a relatively broad definition which may include certain persons suffering from mental illness. A person who is not covered by this legislation could, on application, be subject to the Supreme Court59 exercising its protective powers. The NT Aged and Infirmed Person's Property Act 1979 confers power on the Supreme Court to make orders for the protection of the property of a person who is 'by reason of age, disease, illness or mental or physical infirmity in a position which renders it necessary in the interests of that person or the interest of those dependent on him that his estate be protected.' The Court may appoint the Public Trustee alone, or one or more persons other than the Public Trustee, as manager of the estate to which the order relates. A protection order may be made on such terms and conditions as the Supreme Court sees fit. Anti-Discrimination Legislation The Northern Territory Anti-Discrimination Act was enacted in November 1992, but had not been proclaimed at the time of writing. The legislation covers psychiatric impairment. Page 122 Mental Illness Inquiry Australian Capital Territory The ACT Mental Health Act of 1983 is the least comprehensive of any mental health legislation in an Australian State or Territory. It is supplemented by the Insane Persons and Inebriates Act 1936 and the Mental Health Act 1962, under which an agreement exists between the Australian Capital Territory and the State of NSW. The effect of these Acts and the agreement is to make applicable to the ACT certain provisions of the NSW Lunacy Act 1898. Even with the commencement of the Guardianship and Management of Property Act 1991 and the Community Advocate Act 1991, there are significant areas not covered by Territory legislation. Voluntary Admission The ACT Mental Health Act 1983 contains no provision for voluntary admission to a psychiatric hospital.60 Residents of the ACT may be admitted as voluntary patients to psychiatric institutions in NSW under an agreement between the ACT and NSW,61 pursuant to which residents of the ACT admitted as voluntary patients to psychiatric facilities in NSW are subject to that State's legislation. Involuntary Admission The ACT Mental Health Act provides for involuntary admission by way of emergency detention and by way of a custodial treatment order made by a court. In either case the criteria are as follows: (a) that a person is suffering from 'mental dysfunction' defined as 'a disturbance or defect, to a severely disabling degree, of perceptual interpretation, reasoning, learning, judgement, memory, motivation or emotion'; (b) that the condition of the person gives rise to an immediate and substantial risk of actual bodily harm to the person or to another person; and (c) that the person will not accept treatment which the medical practitioner or mental health officer reasonably believes is necessary to avert that risk. The emergency procedures allow for detention of up to 72 hours by a medical practitioner or an authorised mental health officer (a mental health nurse, psychologist, or social worker appointed by the ACT Board of Health). The detained person must be examined by a doctor 'as soon as practicable'. In order to detain a person beyond 72 hours, application must be made jointly by a doctor and a mental health officer for a court to make a custodial treatment order.62 The Act also provides for emergency detention by a police officer who has reasonable grounds for believing that: Human Rights and Equal Opportunity Commission Page 123 (a) a person is suffering from mental dysfunction; and (b) the condition of the person gives rise to an immediate and substantial risk of actual bodily harm to the person or to another person. The procedures for emergency detention include authorisation of the police, medical practitioner or mental health officer to enter any premises (by force, if necessary) for the purpose of taking the person into detention. The place of such detention is at the discretion of the Director of Mental Health Services hereafter referred to as the Director. The Act provides that the person detained may be subject to 'such restraint as is reasonable and necessary to prevent the person from doing harm to himself or any other person'. There is also provision for a physical and psychiatric examination to be conducted by a doctor and for 'such treatment (if any) as is necessary to avert any immediate and substantial risk of the person doing harm to himself or to any other person.' The ACT Mental Health Act requires the Director to appoint a 'prescribed representative' as soon as practicable for each person detained under the emergency procedures. There is provision for the detained person to nominate his or her representative and for the person nominated to refuse, as well as provision for the termination of such appointments. There is, however, no definition of the scope of authority or powers of such a representative.63 Involuntary admission by way of treatment order requires an application to the Magistrate's Court or, in the case of a 'further treatment order', to the Supreme Court.64 The application is made jointly by a doctor (a psychiatrist in the case of a further treatment order) and by a mental health officer. If an application is made in respect of a person for whom a prescribed representative has not yet been appointed, the Act requires the Director to appoint such a representative as soon as practicable after the application. The Act also requires the Director to ensure that a written statement is given to the person who is the subject of the application and to his or her prescribed representative, setting out the following particulars: (a) the nature of the application; (b) the nature and effect of the orders sought; (c) the powers and duties of the Director in relation to persons who are subject to treatment orders; and (d) the right of the person and his prescribed representative to appeal against the making of any treatment order to apply for the variation or discharge of such an order.' Page 124 Mental Illness Inquiry There is also provision for the Director to ensure that an oral explanation is given to the person or their representative 'as the case requires'. The person who is the subject of the application has a statutory right to appear at the hearing. However, the court has discretion to waive this right if satisfied 'that in the circumstances the presence of the person during the hearing would not be practicable'. There is no statutory right to legal representation. The parties to an application for a treatment order are the applicant; the Director; the person in respect of whom the order is sought; and that person's representative. The court has a discretion to include as a party any other person whose presence is considered desirable for the proper protection of the interests of the person who is the subject of the application. Before making a treatment order, the Magistrate's Court must be satisfied of the following: (a) [that] the person in relation to whom the application is sought is suffering from mental dysfunction; (b) [that] by reason of that mental dysfunction — (i) the person has engaged, and is continuing to engage, in behaviour that has resulted, or is likely to result, in actual bodily harm to himself or to another person; (ii) the person is likely to engage in behaviour that is likely to result in actual bodily harm to himself or to another person; or (iii) the person is in a condition of social breakdown; and (c) [that] the person has refused adequate treatment for that mental dysfunction, or has failed to accept such treatment within a reasonable time after it is offered to him, or is, in the opinion of the Court, incapable of weighing for himself the considerations involved in making a decision whether to accept such treatment. The criteria to be considered by the Supreme Court for the purposes of extending treatment orders are similar, the only difference being that the requirements as to treatment relate to the need for refusal, or likely refusal, of continuing treatment. The Magistrate's Court is empowered to make treatment orders for a period of up to 28 days. The Supreme Court is able to make further treatment orders for an initial period of up to three months and thereafter for periods up to 12 months. Human Rights and Equal Opportunity Commission Page 125 Review and Discharge The ACT Mental Health Act provides that the court which has made the treatment order has the power to vary or discharge the order on the application of the person to whom the order relates, that person's prescribed representative, or a doctor. There is no express power conferred by the Act on the Director or on any doctor to discharge a person from involuntary detention before the expiration of the term of a court order. However, a court order may be made to allow discharge at any time prior to the maximum period capable of being set by the court. There is provision under the Act for an appeal to the Supreme Court against a treatment order made by the Magistrates Court. The ACT mental health legislation does not make any provision for leave to be granted to a patient while detained under a custodial treatment order. Treatment Among the miscellaneous provisions of the ACT Mental Health Act is a requirement that doctors, police officers, mental health officers and the Director (but not the courts) ensure that restrictions on freedom of a person suffering from mental dysfunction are minimal and that dignity and self respect are subject to derogation 'only to the extent necessary for the proper care and protection of the person and the protection of the public' A treatment order made by a Court under the ACT legislation may either direct that the person subject to the order remain in the custody of the Director at premises determined by the Director; or that the person attend such place as the Director determines for the purposes of undergoing treatment.65 In either case, the Director is ordered 'to administer, or to cause to be administered to [the person] such a treatment for the mental dysfunction suffered by that person as the Director thinks necessary, other than: (a) treatment that produces, or is likely to produce an irreversible physical lesion; (b) convulsive therapy; or (c) treatment that has, or is likely to have, the effect of subjecting the person to whom it is administered to undue stress or deprivation having regard to the benefit likely to result from the administration of the treatment. Page 126 Mental Illness Inquiry The Director is also prohibited from administering 'treatment for the purposes of conducting a clinical experiment or any treatment the effects of which are not known or the beneficial effects of which have not been demonstrated clinically.' In relation to custodial orders, several coercive powers are conferred on the Director and on medical practitioners or authorised mental health officers for the purpose of conveying a person to premises; subjecting the person to 'such confinement as is reasonably necessary to prevent the person from doing harm to himself or to any other person'; and such other restraint 'as is reasonable and necessary to prevent the person from doing harm.. .or to permit treatment to be administered to the person.' The ACT Mental Health Act does not contain any express requirements for consent to be obtained for psychiatric treatment, other than ECT or psychosurgery. It does contain a requirement that, where a treatment order is made, the Director or doctor who is to administer treatment shall, before doing so, 'explain to that person the nature and effects including the side effects, if any, of the treatment.' In the case of a person who 'in the opinion of the Director or medical practitioner.. .would be unable to understand an explanation given', the Act allows the requisite explanation to be given to the prescribed representative of the person. The administration of ECT under the Act requires authorisation by a Magistrate's Court on the application of the Director or a doctor, supported by evidence from an independent psychiatrist. The Court is required to be satisfied of the following criteria before approving ECT: (a) that the therapy will result in a substantial benefit to the person; (b) that there is no other form of treatment reasonably available which is likely to result in the same degree of benefit to the person; and (c) that the person is either capable of weighing for himself the considerations involved in whether to consent to the therapy and has done so in writing, witnessed by an independent person or, alternatively, is by reason of mental dysfunction incapable of weighing these considerations. The penalty under the Act for unauthorised administration of ECT is $1,000. The performance of psychosurgery under the Act requires the approval of the Director. This may only be granted on the application of a doctor and must be accompanied by a written statement that the person upon whom the surgery is to be performed understands the nature and effects of the surgery and consents Human Rights and Equal Opportunity Commission Page 127 to it. Alternatively, the Supreme Court may consent on behalf of the person. Before the Supreme Court makes such an order, it must be satisfied that the person concerned is suffering from mental dysfunction; has not refused to consent to the performance of the psychosurgery; that there are grounds for believing the person may benefit from the psychosurgery; and that alternative forms of treatment reasonably available failed or are likely to fail to benefit the person. Before the Director approves an application for psychosurgery, such approval must be recommended by a Committee consisting of a psychiatrist, a neurosurgeon, a barrister and solicitor, a clinical psychologist and a social worker. There is a penalty of $5,000 or 12 months imprisonment for unauthorised psychosurgery. There are no express provisions in the ACT mental health legislation relating to medication or the recording of the administration of medication. Forensic Patients The ACT Mental Health Act 1983 deals only with civil patients, not with forensic patients. Provision is made for residents of the ACT with mental illness and who are accused, charged or convicted of a criminal offence, under a combination of provisions of the Insane Persons and Inebriates (Committal and Detention) Act 1936, the Mental Health Act 1962 and agreements made under these Acts; and the continuation in force in the ACT of Part V of the NSW Lunacy Act 1898 and Section 20B Commonwealth Crimes Act 1914. Under NSW and Commonwealth legislation, provision is made for persons to be found unfit to be tried or not guilty by reason of insanity. Acquittal on the ground of insanity results in detention and strict custody at the pleasure of the Governor General. There are no statutory procedures for review of this detention. A person found unfit to be tried must also be held in strict custody. The ACT Mental Health Act 1962 provides procedures for a person detained in a NSW institution and committed for trial for an offence against ACT law to be returned to the ACT for the Court in the Territory to determine the person's fitness to plead and, if found unfit to plead, to be returned to custody in NSW. Because of the lack of specialist facilities for forensic patients in the ACT, the agreement between the State of NSW and the ACT under the Insane Persons and Inebriates Act allows for the transfer of forensic patients from the Territory to institutions in NSW. This includes ACT prisoners who develop mental illness during their terms of imprisonment. Once transferred, these persons become subject to NSW legislation. Page 128 Mental illness Inquiry The Community Advocate Act 1991 provides that one function of the Community Advocate is to represent forensic patients before the Guardianship and Management of Property Tribunal or a Court. A broad meaning is given to forensic patient under the Act, including a person apprehended by the police whose behaviour or statements 'indicate to the officer that the person may be suffering from a mental dysfunction'. However, the functions of the Community Advocate do not extend to being present during police interrogation and, as a matter of policy, representation of forensic patients is limited to cases involving serious offences. Monitoring and Complaint Handling Mechanisms Part VIII of the ACT Mental Health Act 1983 contains provision for the licensing of private mental health facilities. These include requirements as to the physical conditions, staffing and other conditions of such facilities, with power to vary or revoke conditions or to cancel a licence. Provision is also made for inspection of licensed premises and statutory powers are conferred on an inspector. There are, however, no provisions relating to the monitoring of standards or conditions in publicly owned or operated health facilities in the Territory.66 No provision exists under general health or mental health legislation in the ACT for processing complaints by consumers. The Office of the Community Advocate under the Community Advocate Act 1991 has responsibility for fostering the provision of services and facilities for persons with disabilities; assisting in the establishment of organisations to support such persons; encouraging the development of programs for their benefit; and promoting their protection from abuse and exploitation. The Act also states that the Advocate has 'the power to do all things necessary or convenient to be done in connection with the performance of his or her functions.' However, the Act confers an express power on the Advocate to investigate complaints or allegations concerning the administration of the Community Advocate Act itself and to investigate complaints concerning the actions of a guardian or manager acting or purporting to act under an enduring power of attorney. This express provision would appear to limit the Community Advocate's power in relation to complaint handling to the matters specified. Human Rights and Equal Opportunity Commission Page 129 Guardianship Since the Inquiry commenced the ACT has introduced the Guardianship and Management of Property Act 1991. This Act provides for the establishment of the Guardianship and Management of Property Tribunal to take over the powers exercised by the Supreme Court under the NSW Lunacy Act 1898.67 The new Act gives the Tribunal the power to appoint a guardian where a person is 'unable because of a physical, mental, psychological or intellectual condition (i) to make reasonable judgements about matters relating to his or her welfare; or (ii) to do anything necessary for his or health or welfare; and, as a result, the person's health or welfare is, or is likely to be, substantially at risk.' The Act sets out powers that may be conferred on a guardian including decisions as to where and with whom a person is to live, whether or for whom a person may work and the giving of consent for medical procedures or treatment. There are also certain matters expressly excluded by the Act from the scope of the guardian's powers. These include voting, making testamentary dispositions and consenting to prescribed medical procedures which are defined in the Act to include sterilisation, abortion and contraceptive measures. The Guardianship and Property Management Tribunal also has power to make an order appointing a manager for all or part of a person's property. If the Tribunal is satisfied that the person is by reason of physical, mental, intellectual or psychological condition legally incompetent to enter into a transaction in relation to a property and decisions need to be made regarding such transactions, the Tribunal may appoint a natural person or the community advocate as a guardian and may appoint the community advocate, a trustee company, or the public trustee as a manager. The Tribunal, as constituted under the Act, consists of a President and two other members appointed by the Executive. The President is to be a magistrate or legal practitioner of at least five years standing. The other members are to be persons who, in the opinion of the Executive, have appropriate expertise, training or experience in relation to, and are otherwise suitable to deal with, the Page 130 Mental Illness Inquiry needs of persons who because of physical, mental, psychological or intellectual condition need assistance or protection from abuse, exploitation or neglect.68 Anti-Discrimination Legislation Under anti-discrimination legislation passed by the ACT in 1991, discrimination is prohibited in the areas of employment, qualifying bodies, education, access to premises, goods, services and facilities, accommodation and clubs. The grounds on which discrimination is prohibited include impairment which is defined to cover 'an illness or condition which impairs a person's thought processes, perception of reality, emotion or judgment or which results in disturbed behaviour'. This would certainly cover mental illness. Human Rights and Equal Opportunity Commission Page 131 1. Dr John Hoult, Director, Clinical Psychiatry, Glebe Community Care. Oral evidence, Sydney 20.6.91, p409. 2. Thea Bates, Director, Victorian Community Managed Mental Health Services (VICSERV).Oral evidence, Melbourne 8.4.91, pi36. 3. Senator Grimes, then Minister for Community Services, in debate on the disability services legislation, as amended in the Senate by the Australian Democrats, 20.11.86, Hansard p2595 1986. 4. The problem that this creates in relation to psychiatric illness was referred to in oral evidence by a number of witnesses including T Bates (op cit, pi36) and Margaret Ray (Chairperson, Social Development Committee, Victorian Parliament. Oral evidence, Melbourne 9.4.91, p256). Witnesses pointed out that most clinicians would not describe mental illness as permanent in view of the characteristic fluctuations and remissions. 5. On the other hand, a number of witnesses (eg Liz Dalston, Director, Mental Health Association Resource Centre, Adelaide 22.10.91, pl62; Rob Ramjam, Coordinator, Planning, Schizophrenia Fellowship of NSW, Sydney 19.6.91, p324; and Rick Redom, President, Australian National Association for Mental Health, Hobart 12.11.91, p201) referred to the Minister's Statement at the commencement of the legislation that funding of services for psychiatric disability would be a low priority. 6. Dr J Tooth, President, Alzheimer's Association, Tasmania. Oral evidence, Hobart 11.11.91, p40. 7. Evidence to the Inquiry indicated that the HACC guidelines favour those with physical and intellectual disabilities over those with psychiatric disabilities. See, for example, oral evidence given by L Dalston, op cit, pl62 and R Redom, op cit, p201. 8. Tony Fowke, President, Mental Health Association of WA. Oral evidence, Perth 11.2.92, p221. 9. The restrictive nature of these Schedules, which do not include many forms of therapy other than traditional psychiatric treatment and which reward doctors most highly for 16 minute consultations, was criticised by many witnesses including Dr Roger Gurr (Clinical Director of Psychiatry, Blacktown Community Health Centre, Sydney 18.6.91, p229); T Fowke (op cit, p221) and L Dalston (op cit, pl63). 10. David Pugh, Bendigo Community Support Service. Oral evidence, Ballarat 11.4.91, p587. 11. According to the Act, the relevant determining authority is the Secretary of the Department of Social Security. In practice, the determination is delegated, in the case of Job Search, to a determining officer of the Department and in relation to Newstart, to an officer of the CES. 12. By 1994 it is intended to provide an additional 10,000 places in Commonwealth Rehabilitation Service programs for people with disabilities (including those with psychiatric disabilities) and an additional 6,500 places for people with disabilities in training programs run by DEET (Jobtrain, Jobstart and Job Search). The Disability Services Program will also create an additional 4,000 employment places in supported and competitive employment. 13. Janet Meagher (oral evidence, Sydney 17.6.91, pl27) indicated that those who were considered to be 'stirrers' or 'troublemakers' were likely to be refused admission. 14. Anne Davis, former Executive Officer, ARAFMI. Oral evidence, Sydney 18.6.91, pl54. 15. There is a requirement in the Act that the certifying doctor not be a near relative of the person to be certified. The term 'medical practitioner' is used in the mental health legislation but for the sake of simplicity 'doctor' will be used in this report. 16. Joy Said, Executive Director, After Care Association. Oral evidence, Sydney 17.6.91, p32. Page 132 Mental Illness Inquiry 17. Ramjam (op cit, p327) suggested that magistrates' hearings could be 'absolutely the best or the worst' ways of handling these reviews, depending largely on the magistrates' training. 18. Dr Ronald Barr, Consultant Forensic Psychiatrist. Oral evidence, Sydney 20.6.91, p424. 19. Meg Smith, coordinator, Manic Depression and Depression Association. Oral evidence, Sydney 17.6.91, p87. 20. By order published in the Government Gazette. 21. However, evidence given by Dr John Ellard of the Royal Australian and New Zealand College of Psychiatrists (Sydney hearings 17.6.91, p61) suggested that the legislative provisions were 'too cumbersome' to deal with small fly-by-night private operators. 22. Smith, op cit, former NSW official visitor, remarked that information on 'how to contact the official visitor was one of the State's best kept secrets'. 23. Dr Margaret Leggatt, Secretary, Schizophrenia Australia. Oral evidence, Melbourne 8.4.91, p89. 24. Neil Rees, President, Victorian Mental Health Board. Oral evidence, Melbourne 8.4.91, p32. 25. See oral evidence given by Peter Johnson of the Mental Health Legal Centre (Melbourne 10.4.91, p421) that the 'six hour rule' is used as a 'threat or cajolement'. The same witness referred to a 'practice of putting voluntary patients in locked wards,' 26. Victorian Mental Health Act 1986, s.8. 27. These appointments are for set terms, terminable at the Governor's discretion. 28. In practice the appeal may take place one week or more after lodgement, depending on the local availability of the Board. (Frank Hytten, Chairperson, Mental Health Legal Service. Oral evidence, Melbourne 10.4.91, p410.) If the Board finds the admission to have been inappropriate the four to six-week hospitalisation can only be remedied by discharge. 29. The Board issued Guidelines in 1989 for ensuring compliance with the rules of natural justice. However, in oral evidence given by Steven Hird of the Mental Health Legal Service (Melbourne 10.4.91, p426) the practical difficulty of patients getting to know the case against them was discussed. 30. Dr Ian Siggins, Victorian Health Services Commissioner. Oral evidence, Melbourne 8.4.91, p53. 31. On the other hand there was evidence from P Johnson (op cit, p422) that community treatment orders are used 'as cajoling devices to manipulate patients,' 32. Until amended in 1990, the provisions only extended to consent by the authorised psychiatrist or guardian where the patient was not capable of consenting to treatment on his or her own behalf. Dr Siggins, then Victorian Health Services Commissioner (op cit, p54) referred to this amendment as a 'questionable' removal of the distinction between refusal and incapacity and gave examples of the way in which it could lead to inhumanity and disregard for the dignity of patients. 33. Rees, op cit, pl6. 34. Siggins, op cit, pp51-52. 35. Queensland Mental Health Services Act 1974, s. 18. 36. The prescribed form for such medical recommendation is set out in the Mental Health Services Regulations. Human Rights and Equal Opportunity Commission Page 133 37. According to oral evidence given by Gaye Ellis (Cairns 9.8.91, pi 104) the 'authorised person' is not invariably present and people being involuntarily admitted are 'treated like criminals'. Similar comments were made in a number of written submissions. 38. This recommendation must also be in the prescribed form. 39. The rights to refuse treatment and to obtain information about treatment to be administered were major themes in written submissions from Queensland. Representative examples included Judy Magub on behalf of the Qld Association for Mental Health; Denis Jones on behalf of the Qld Nurses' Union; Sister Catherine Heffernan on behalf of the St Vincent de Paul Society; and a number of private individuals. 40. Report of the Commission of Inquiry into the Care and Treatment of Patients in the Psychiatric Unit of Townsville General Hospital, Volume I, p435. 41. Mental Health Services Act, ss.29A, 29C, 31 and 43. 42. The term of appointment is five years although there is also provision for removal on specified grounds. 43. The Queensland Law Reform Commission is currently examining possible changes to the laws in this area. 44. Although oral evidence given by the Chair of the Mental Health Review Tribunal (Adelaide 23.10.91, p394) indicated that the threat of involuntary detention is used to keep voluntary patients from leaving hospital. 45. However, evidence given by witnesses in Adelaide (eg. Sister Margaret Tulley, 22.10.91, p236 and Julie Felus, 22.10.91, p284) indicated that admission is refused on the ground that a person with 'personality disorder' is not suffering from a condition warranting hospitalisation. 46. However, as was pointed out in evidence given by the Chair of the Mental Health Review Tribunal (op cit, p394), since the Tribunal is part-time, the reviews are usually held only when the initial detention period has almost expired. 47. This, as was pointed out by Anne Burgess, Chief Project Officer, Mental Health Unit (Adelaide 22.10.91, p221), involves 'a lot of dual reviewing...a very circular sort of process,' 48. Dr David Ben-Tovin, Associate Professor of Psychiatry and Director of Mental Health Services. Oral evidence, Adelaide 22.10.91, p219. 49. Burgess, op cit, p220. 50. Dr Malcolm Roberts, psychiatrist. Oral evidence, Perth 12.2.92, p330. 51. The Board, however, has no power to order aftercare, only to discharge outright. 52. Evidence given by the Chairman of the Board of Visitors at Heathcote Hospital (Perth 10.2.92, pp35-36) indicated that the Boards do not tend to actually order discharge, although they consider the option in appropriate cases. 53. Professor Ian Campbell, Associate Professor, School of Law, University of Western Australia. Oral evidence, Perth 11.2.92, pi 19. 54. Dr Ian Sale, President, Tasmanian Branch of the RANZCP. Oral evidence, Hobart 12.11.91, pl87. 55. id. 56. Dr Russell Pargiter, Chairman of the Ethics Committee of RANZCP. Oral evidence, Hobart 12.11.91, pl48. Page 134 Mental Illness Inquiry 57. Dr Pargiter also cited the case of Dr Thompson whose release had been recommended by the Mental Health Review Tribunal but refused by the Attorney General. 58. Discussed in evidence by Sale, op cit. 59. These powers form part of its inherent jurisdiction. 60. Oral evidence given by Chris Staniforth of the ACT Legal Office (Canberra 19.3.92, p74) provides examples of the tragic problems that can arise where a patient is refused voluntary admission. 61. The agreement is contained in a schedule to the ACT Mental Health Act 1962. 62. Evidence given by Karen Fryar of the ACT Legal Aid Office (Canberra 18.3.92, p79) and also in the written submission from the ACT Legal Aid Office, indicates that a patient may be detained for more than one 72 hour period under these emergency procedures without application to the Court but without actually being informed at any point that he or she is free to leave. 63. This scope would not extend to guardianship or management of the estate of the detained person as such functions are currently provided for in the Guardianship and Management of Property Act 1991 and were previously covered by the application in the ACT of the NSW Lunacy Act 1898. Fryar, op cit, pp81-82, indicated that there is considerable uncertainty surrounding the role of prescribed representatives and some possible duplication with legal representatives. 64. Use of the Courts for this purpose was the subject of strong criticism in evidence given by Libby Steeper of ACTCOSS (Canberra 18.3.92, p25) who, like witnesses in other States, pointed out that the Court process was inappropriate for people who were ill and tended to be confused by criminal processes. 65. According to further evidence given by Fryar, op cit, p80, these orders are not in the form of individualised treatment plans but merely require that the patient be held for 28 days at the direction of the Director of Mental Health. 66. Nor is there, as was pointed out in evidence by Ken Horsham, General Manager, Housing and Community Services Bureau, ACT Correctives Services Canberra 19.3.92, pl50), any provision for monitoring the conditions for ACT patients in NSW institutions. 67. Parts VII, VIII and IX of the Lunacy Act. 68. The President is to hold office for a renewable term of five years. Other members are to hold office for a renewable period of three years. Although the Tribunal is a specialist body with a measure of independence, it is not 'freestanding' in that it is administered by the ACT Magistrates Courts. This point was clarified in evidence given by Brendan Bailey, ACT Community Advocate (Canberra 19.3.92, pl39). Human Rights and Equal Opportunity Commission Page 135 Chapter 5 MENTAL HEALTH SERVICES The Government Sector Although we are becoming more skilled in the perception, the description, the diagnosis and the treatment of [mental illness], where are the psychiatrists to treat those with severe psychotic illness...who may be too difficult to treat in any other setting than a public psychiatry unit?1 This century has seen a dramatic shift in government mental health policy and service provision. The 'asylum era' that dominated mental health policy in the nineteenth century has given way (gradually, initially, and rapidly since the 1960s) to less custodial and segregated approaches — culminating in the prevailing preference for community-based care. The concept of asylum was initially premised on the view that the most appropriate way to care for people with mental illness was in a protected, segregated environment. Inevitably, population growth outpaced the capacity of the asylums and the limited treatment regime meant that very few people ever moved back into the community. Any advantages that asylums may have offered were outstripped by the disadvantages of confinement, exclusion, stigmatisation, overcrowding and lack of personal freedom. Nevertheless, it was not until the mid twentieth century that social pressure for reform — abetted by advances in medical technology and concerns about the financial burden imposed by large institutions — contributed to the major change in policy direction known as 'deinstitutionalisation'. The discharge of patients formerly resident in psychiatric hospitals2 and the growth of community psychiatry — where individuals are more likely to receive community or outpatient treatment and community-based rehabilitation — have gained momentum over the past 30 years. Unfortunately, hospital and community services have tended to compete for funds and have generally proved unwilling to co-operate in service provision. In addition, the promise of more, and more effective, community-based services has yet to be realised. The policy of 'mainstreaming', as espoused in the National Mental Health Policy, attempts to address this situation by ensuring that mental health services are co-located with general health services, 'while retaining the internal integration of specialised services to ensure continuity in clinical management.'3 Page 136 Mental Illness Inquiry The success of this radical policy shift to mainstreaming, and of the National Mental Health Plan, remains to be demonstrated in practice. However, it is important to note that the debate about distinctions in policy has tended to divert attention — away from the endemic under-resourcing that has characterised mental health services. Lack of resources has bedevilled community-based care in much the same way that inappropriately allocated resources contributed to the ineptly executed demise of the large institutions. Clearly, resources and effective coordination are imperative if mainstreaming is going to work. Funding According to estimates for 1991-92, the Commonwealth spent $2,582 million on identifiable mental health services. Expenditure by the States and Territories in 1990-91 was $871 million. This is a total of $3,450 million, or $201 per capita.4 Of the Commonwealth expenditure, $20.5 million is identified as funding through the Disability Services Program. It does not include recent 'incentive' payments from the Commonwealth to the States and Territories as part of the devolution of disability services under the Commonwealth-State Disability Agreement (CSDA).5 A further $120 million is identified as expenditure through the Home and Community Care (HACC), Supported Accommodation Assistance Program (SAAP), and Housing Programs of the Commonwealth. Again, it is difficult to identify how much of this expenditure relates at all directly to people with mental illness and psychiatric disability. By far the greatest proportion of the Commonwealth's 'mental health' expenditure ($1,444 million) relates to income security payments. Other benefits to or for individual recipients include $79 million for pharmaceutical benefits, $405 million for nursing home benefits, and a puzzling $14 million for 'emergency relief. State expenditure varies significantly — from $40 per capita in Queensland to $63 per capita in Victoria.6 Amounts spent in each jurisdiction in 1990-91 were as follows: Human Rights and Equal Opportunity Commission Page 137 State $ million $ per capita NSW 266 46 Victoria 277 63 Queensland 119 40 WA 85 51 SA 88 52 Tasmania 21 46 NT 6 33 ACT 9 31 National Mental Health Policy Funding The National Mental Health Policy and Plan were developed by the Commonwealth, State and Territory Governments over a three-year period and launched in May, 1992. The aims of the Policy are to: • Promote the mental health of the Australian community and, where possible, prevent the development of mental health problems and mental disorders; • Reduce the impact of mental disorders on individuals, family and the community; and • Assure the rights of people with mental disorders. The National Mental Health Plan specifies strategies designed to assist in the implementation of the Policy by the Commonwealth Department of Health, Housing, Local Government and Community Services and State and Territory health departments.7 The Commonwealth is providing $135 million to implement the Plan over the next five years. (Additional funding has also been allocated for capital works.) Of the $135 million, approximately $106 million will be allocated directly to the States and Territories as part of the renegotiated Medicare Agreement — to assist with the policy of integrating mental health services with the general health system. The $10 million allocated during 1992-93 will be followed by: 1993-94 $14.1 million 1994-95 $19.1 million 1995-96 $19.6 million 1996-97 $20.7 million 1997-98 $22.8 million Human Rights and Equal Opportunity Commission Page 138 Clearly, the States and Territories are the primary providers of services for people affected by psychiatric disability. Most face significant difficulties in closing outmoded and expensive institutions, where most of their resources still lie, and developing an adequate level of community and acute hospital mental health services to accommodate patients currently in institutions and many others who will, at some stage, need acute care. Theoretically, the National Mental Health Policy funding will allow introduction of additional services and facilitate the transfer of patients to community-based care. The intention is that this will facilitate further rationalising of institutions and the release of funds which can then be redirected to the community sector. Funding is also intended to be used to upgrade specialised psychiatric facilities for people in need of inpatient care and for ainstreaming acute psychiatric services into recognised hospitals. The balance of Policy funding is to be used to support a program of structural reform at the national level, research, innovation in service delivery and evaluation. Government Mental Health Services Resource Allocation This brief summary of expenditure and funding commitments does not purport to describe the extent of government involvement in the provision of services for people with mental illness. In most States — especially NSW and Victoria — there has recently been a significant redirection of government effort. However, while government mental health services are now much wider in range and impact than they were previously, the fact remains that State government funding is still, very largely, 'institutionally based'. While mental health services now offer specialised services — including assessment, crisis intervention, acute inpatient services, community outpatient clinics, mobile treatment teams, domiciliary services and rehabilitation and living skills programs8 — there is still a fundamental imbalance between the number and distribution of these services, the extent of community needs and the resources available to meet those needs. Although the figures vary from State to State, the overall picture is disturbingly uniform. In Victoria, for example, in the latest year for which the Inquiry could obtain figures (1990-91) 97.7 percent of that State's mental health budget was used directly by government services. If the figures are further disaggregated, most States present a picture in which government services not only predomi- Human Rights and Equal Opportunity Commission Page 139 nate, they effectively monopolise the limited resources available and apply those overwhelmingly to treatment and care in institutional settings. In Queensland, for example, of the total funds of $119 million available for mental health services m 1990-91, over half (51 percent) was spent on just three psychiatric hospitals. A further 36 percent was spent on psychiatric units in general hospitals. Only 10.5 percent was allocated to 'community services' — and only 1 percent allocated to carer and consumer organisations (ARAFMI, Schizophrenia Fellowship, GROW etc) which provide a great deal of support to consumers and carers alike.9 Types of Services The following service components are regarded by the NSW Health Department as essential to an integrated mental health services system:10 • adult mental health teams (providing assessment and ongoing treatment and management services); • mobile assertive case management teams/mobile treatment teams (providing intensive case management services to clients with special difficulties);11 • crisis/ extended hours services (providing assessment, acute treatment and management services, preferably on a 24-hour basis); • community-based treatment beds;12 • accommodation services; • mental health inpatient services; • general hospital psychiatry services (principally providing acute admission services and servicing defined catchment areas); • psychiatric hospitals (providing a regional service for acute patients who cannot be managed in general hopital units, tertiary assessment, long term care for chronic patients with severely intractable chronic mental illness not manageable in the community or other facilities, specialised rehabilitation services, and specialised containment for both civilian and forensic patients); and • specialised services for children, adolescents and older people. Other States are adopting similar systems according to population size and special needs. (Chapter 9 — Community Care and Treatment, provides a detailed description of the components of comprehensive mental health services.) Page 140 Mental Illness Inquiry Hospital Services At present there are no uniform national data concerning: • the relative numbers of beds in specialist, stand-alone psychiatric facilities compared with psychiatric units; • designated beds in general hospitals; or • acute treatment beds and beds for long-stay or so-called chronic patients. • beds occupied by old people with mental health problems. (Some States include psychogeriatric and dementia beds; others exclude these categories.) This makes it impossible to accurately tabulate the provision of inpatient services on a State by State basis. However, the States and Territories are currently implementing systems, to be linked into a national mental health minimum data set, which will have the capacity to identify service patterns and costs. At the Commonwealth level, the only hospital services for people with psychiatric conditions are those provided by the Department of Veterans' Affairs. A process of transferring these hospitals to the States is under way. It should also be noted that private hospitals offer some beds to public patients with mental illness. As an example, a submission from the Australian Catholic Health Care Association nominated three private psychiatric hospitals among the 36 private and 22 public hospitals throughout Australia represented by the Association. The Association stated: All our major Catholic public hospitals throughout Australia are involved to some degree in care of various psychiatric illnesses, often through accident and emergency departments, in specialised units, general wards and outpatient clinics.13 Private inpatient services are discussed in more detail later in this chapter. As mentioned earlier, the policy of mainstreaming or amalgamating psychiatric inpatient services with general hospitals will have major implications for the future of hospital services for people affected by mental illness. The success of mainstreaming will depend not only on more — and more equitably allocated — resources, but also on more enlightened attitudes by the medical profession and health administrators. Human Rights and Equal Opportunity Commission Page 141 The Inquiry was presented with a wide range of views concerning the effects and desirability of mainstreaming public psychiatric services. On the one hand, bringing acute psychiatric treatment into the main stream of hospital services was seen as an essential way of improving the status of psychiatric medicine, and as a means of removing the prevalent stigma still associated with mental illness. The integration of psychiatric services into the mainstream would force psychiatric hospitals like Lakeside to...stand on their own and become hospitals in the true sense as we know them in the public sector.14 Integration enables barriers to be broken down between psychiatry and other disciplines. By thus countering the tendency towards isolation of psychiatry, integration can reduce the stigma attached to mental illness and open its principles and practices to broader scrutiny.15 In addition, mainstreaming was seen by some as a way of significantly improving medical care for people affected by mental illness. There is a large degree of overlap between psychiatric and physical ill health. Roughly 30 percent of patients in general hospital beds have co-existing psychiatric disorders. A similar figure (25-30 percent) applies to patients in primary care. Likewise, 30-50 percent of psychiatric inpatients show evidence of concurrent physical illness. It follows that integrated health care ought to improve the quality of care by providing better access to modern diagnostic and therapeutic procedures together with enhanced interdisciplinary consultation and collaboration. 16 However, many witnesses to the Inquiry feared this radical policy shift will result in mental health budgets being eroded and funds redirected to the larger and more expensive health services in general hospitals, which have been stretched, sometimes to breaking point, in most States over the past few years. This could actually lead to diminished status and funding, and even greater risks of discrimination and stigmatisation. It is essential to ensure that funding earmarked for psychiatry is in fact delivered to psychiatric services and not diverted to competing areas of health care. And I think, on that point, there has almost been a trial run of mainstreaming in Western Australia since the closure of the Mental Health Services Department some six or seven years ago, and its incorporation into the Health Department. Whilst probably facilities and services have not yet been reduced, on the other hand...they have not been proportionately increased and so psychiatry has actually fallen behind other areas of medicine.17 Another concern related to the possibility that mainstreaming could lead to psychiatric care becoming more closely aligned with the 'medical model' of care — at the expense of broader psychosocial approaches to treatment.18 The apprehension and ambivalence of many witnesses was concisely summarised in a submission from one professional association: Page 142 Mental Illness Inquiry The policy direction of integrating mental health services with general health services is commendable, first, in attempting to address the problem of so many inpatient psychiatric services being so removed from the patients' local communities, and secondly, in attempting to destigmatise mental illness by associating its treatment with general health services... However, there is a potential for mental health services to be overshadowed by general health care areas, [because they tend to be] more expensive and more prestigious.19 Several submissions to the Inquiry advocated an even greater degree of integration in order to 'normalise' mental health services. Outpatient clinics are conducted within the precincts of the acute facilities... We believe that outpatient clinics, day centres and rehabilitation services should all be situated out in the community where people live. The established general community health centres could be used for this purpose on specified days.20 Whatever the outcome, it is clear that with the introduction of mainstreaming, training must become a higher priority if general hospital staff are to adapt to the particular demands of dealing with people affected by psychiatric disorders in an appropriate, empathetic manner.21 Community Services We do need staff in the community, but no more than we are currently employing in the hospitals... The real challenge is to develop training programs... We are talking about a thousand community mental health workers — psychologists, social workers, nurses, psychiatrists — none of whom have had a lot of training for the new jobs we are asking them to do. It's a problem of changing roles and us forgetting to reskill them.22 Notwithstanding the relatively slow reallocation of resources referred to above, submissions from State and Territory governments expressed a unanimous commitment to greater government involvement in direct service provision at a community level. The National Mental Health Policy calls for 'comprehensive mental health service systems' offering an appropriate service mix that recognises the need to cater for 'acute episodes and long-term needs'.23 Government submissions received by the Inquiry clearly acknowledged that people with mental illness, like people with any other illness, are best treated and cared for in a familiar environment, where they have access to both organisational and informal supports. The National Mental Health Plan and State strategic plans24 acknowledge this; but they vary in the degree of explicit commitment to action that will correct continuing imbalances in resourcing. Clearly, from the evidence presented to the Inquiry, there are a number of problems preventing the transition from institutional care to community care proceeding effectively. Human Rights and Equal Opportunity Commission Page 143 Major impediments identified by witnesses included: • failure to transfer financial resources to community mental health services;25 • lack of staff in the community to care for people after discharge;26 • inefficient organisational arrangements to integrate community services with hospitals;27 • lack of retraining for hospital-based mental health professionals, particularly nursing staff;28 • existence of industrial barriers to moving staff out of hospitals;29 • lack of procedures to involve families in the community treatment process. These issues are discussed in more detail in Chapter 9 — Community Care and Treatment. 'Specialist Services' While there are many accommodation, rehabilitation and continuing care services that have special expertise and a specialised focus, this section is confined to clinical services — an area which is the exclusive preserve of government. Concerns about the effects of mainstreaming are particularly pronounced in relation to specialist services. Evidence presented in later chapters of this report indicates that there is a chronic shortage of specialist services for particularly vulnerable groups such as children and adolescents, Aboriginal and Torres Strait Islander people, refugees, survivors of torture and trauma, the homeless and those with multiple disabilities. Older Australians are especially disadvantaged: As we get older we know there's a greater chance of having a psychiatric disorder. We know, for example, that 25 percent of people over the age of 75 can suffer from a depressive disorder and it can go unrecognised and therefore untreated — put down to the ageing process — when it's a treatable condition... We will be a sicker population because of the increased incidence of psychiatric disorders in the aged...and the significant increase in our [elderly] population.30 Those specialist services that do exist are currently concentrated in a handful of large cities — generally the State capitals. While this is understandable in a political and economic sense, the failure to provide even basic services outside our major urban centres must be a matter of serious concern in a country with such a widely dispersed population.31 (See also Chapter 22 — People in Rural and Isolated Areas.) The Most Disabled Nowhere else in medicine does it occur that the sickest receive the least time of the most highly skilled. Have we largely abandoned these people?32 Page 144 Mental Illness Inquiry In opening this chapter reference was made to the traditional concept of 'asylum' — and the rapid decrease in the number of 'institutional beds' (from 281 per 100,000 people in the 1960s to 40 per 100,000 in 1992). While few would oppose deinstitutionalisation as a concept, there are disturbing signs that some States may be on the verge of closing down all institutions without providing any viable alternatives for some of the sickest and most vulnerable in our society — those for whom some type of 'asylum' in the traditional sense is essential. There are also a small number of individuals who are, in reality, so dangerous to the community that there are compelling human rights arguments for their continued confinement. These facts may be unpalatable — but they cannot be ignored. Nor can governments realistically look anywhere else but to government funded facilities for provision of the requisite care. However, the Inquiry found little evidence of appropriate planning to effectively cater for the needs of such people. One US study conducted in the 1980s indicated that there is an 'irreducible minimum' of approximately 15 institutional beds per 100,000 people — to cater for the needs of the severely mentally ill elderly, intellectually disadvantaged, brain injured, dangerous and endangered.33 Clearly proper provision for such people must be made — both to protect themselves and, in the case of the chronically dangerous, the community at large. Prevention and Early Intervention Australian governments have committed themselves to promoting a better understanding of mental health issues and to secondary (early intervention) and tertiary (rehabilitation) prevention of psychiatric disability. The efficacy of primary prevention measures has not been demonstrated for most severe mental health problems and mental disorders... The evidence in support of the effectiveness of...early intervention and...rehabilitation prevention is stronger, and the provision of such measures is regarded as central to mental health care. Early diagnosis and intervention are particularly effective, as are programs which assist people to deal with life events which may place their mental health at risk.34 To date, very little systematic attention has been given to this important objective. While the Inquiry acknowledges the importance of programs such as the Early Psychosis Centre at Parkville, Melbourne, the 'prevention' effort seems to have been directed at broader mental health issues. (See Chapter 27, Prevention and Early Intervention, for a more detailed analysis.) Human Rights and Equal Opportunity Commission Page 145 The Private Sector I would be quite happy to go on the record as being extremely critical of the role of private psychiatrists in the provision of services to psychiatric patients in the community. In our position we are frequently put in the situation where a psychiatrist will not see anyone after hours, even if it is their own patient... This is in a background where I believe...that about 80 percent of the State's psychiatrists are in private practice... I would suspect that very, very few of them provide a locum service or an after-hours service, and...virtually none would ever visit a patient at home. So the situation there is they are confining their treatments essentially to neuroses. Once it comes to a psychosis they don't want to know about it.'5 The Inquiry received very little evidence from the private sector. Publicly available information indicates, however, that there are a significant number of private psychiatric services operating in the capital cities, particularly Sydney and Melbourne. It is also well recognised that private therapists, working as sole practitioners or in clinics, provide treatment and counselling services — especially in the child, adolescent and family therapy fields. Private Sector Psychiatric Services Outpatient Management There are approximately 1800 psychiatrists in Australia. Psychiatrists see approximately 75 percent of patients in office-based private practice and 25 percent in public practice.36 Psychiatrists in private practice are less likely to see people with severe mental illness and, according to government figures, approximately 60 percent of their patients suffer from neuroses or personality disorders.37 However, there is considerable doubt that the remaining 40 percent are affected by what are clinically defined as 'mental illnesses'. A large number of psychiatrists have taken the soft option and set up a practice which discriminates against the seriously mentally ill. If someone really ill turns up, they're shunted off to the nearest government facility.38 The point comes into sharper focus when the figures for Commonwealth expenditure on mental health are analysed. In 1990-91 the Federal government paid out approximately $400 million in medical benefit rebates. This is a very substantial sum — and dwarfs, by comparison, the amounts paid to support other important e lements of the mental health care system.39 Page 146 Mental Illness Inquiry Clearly psychiatrists — including those in the private sector — have a central role in any coherent mental health system. But if, at the same time that governments are closing institutions at an unprecedented rate, many psychiatrists are declining to treat the most seriously mentally ill, our professionals (and the governments which substantially finance their practices through the rebate system) are fundamentally failing many who need them most. (Also see Chapter 6 — The Role and Training of Health Professionals and Others, for further discussion of this issue.) In theory, it is possible for any individual to see a private practitioner — as long as the psychiatrist is prepared to accept the Medicare rebate as total payment for their services. While it is true that long term involvement with one private psychiatrist has distinct benefits, this form of treatment is really only suitable for people who are compliant with treatment, are willing and able to attend for consultations, and have the external supports to assist with management and linking into rehabilitation services. Patients who consult a psychiatrist in private practice have the advantage of continuity of practitioner, the knowledge that the practitioner is fully qualified and the opportunity to change doctors if they do not have confidence in a particular one. On the other hand they usually get a medical service only, without the wider professional services which are provided through the public sector. Many private practitioners will not provide any information or support to family members out of respect for confidentiality, and families are thus left without the assistance needed to care for the person with the identified llness. There is some anecdotal evidence that those who can afford to use the services of the private sector may in fact be more isolated in their illness, or their distress, than those in the public sector.40 The major concern in this area rests upon the fact that many people treated by private psychiatrists have no access to support and rehabilitation services. For example, there is no one to follow up on medication, which is a major factor in the prevention of relapses.41 It has been suggested that the present arrangements for reimbursement of private psychiatrists under the Medical Benefits Schedule system have contributed to this situation.42 People with mental illness have multiple needs which vary over time. At different stages many will need services which are not usually provided by a psychiatrist or GP — such as assistance in finding accommodation and obtaining other forms of support. Psychiatrists are not reimbursed for time spent making arrangements such as these or for maintaining referral networks. Indeed, there are no incentives for private psychiatrists to give priority to people with chronic mental illness at all. Nevertheless, the Inquiry did hear from family members who were pleased with the service provided by their private psychiatrists, as the following case illustrates: Human Rights and Equal Opportunity Commission Page 147 Now, there can't be many doctors in this world who would take a distraught call from a person eight times during the day. He gives me his holiday number, his private home number and his clinical number and I think it's good to be able to note — it gives us hope, even though they are pretty hard to find and it took us 14 years to find him — that there are people who are willing to do that.43 The Relationship Between the Public and the Private Psychiatric Systems In most States, private psychiatrists do not have visiting medical officer rights in public hospitals. Under the present arrangements a private sychiatrist cannot be reimbursed through the Medical Benefits Schedule for continuing to treat patients in this setting. Private patients who are referred to public hospitals because they do not have private health insurance generally 'lose' their psychiatrists when they enter the public mental health system. In many cases the psychiatrist is not even notified when the patient is discharged from hospital. Some private hospitals offer beds to public patients affected by mental illness (a subject addressed in more detail in the previous section on Government Services). Private Psychiatric Inpatient Services Only 12 percent of acute psychiatric beds are in the private hospital system.44 Similarly, a lower proportion of people with the more serious mental disorders are private inpatients. A recent Queensland study found that the proportion of hospital patients with schizophrenia and other psychoses was lower in private psychiatric hospitals than public hospitals: 26 percent (private) and 40 percent (public); as was the case with affective disorders: 22 percent (private) and 31 percent (public).45 In NSW, patients in private hospitals represented 13 percent of residents in mental health facilities at the 1990 Census. NSW private hospital psychiatric bed numbers have decreased in recent years — to 564 beds in October 1991 — a proportion of which are designated as drug and alcohol treatment beds.46 Private inpatient psychiatric care is out of the question for people who do not have private health insurance. Furthermore, evidence to the Inquiry indicated that some major health insurance funds unjustifiably discriminate against people with mental illness, either by imposing special rates on patients admitted to private psychiatric facilities,47 or by establishing tables which exclude psychiatric hospitalisation. These tables are often directed towards young adults — on Page 148 Mental Illness Inquiry the basis that they will not need inpatient psychiatric care — when in fact they are in a high risk category. We are most concerned by the establishment of health insurance tables specifically excluding psychiatric hospitalisation. Such tables have been established in the past year by major health funds. These tables are often directed towards young adults on the basis that they will not need such care, when in fact they are in a high risk category. Schizophrenia commonly starts between 15 and 25 years of age, and major mood disorders commonly between 25 and 45 years. To claim that psychiatric hospitalisation will be unnecessary is a fraud which can succeed because it caters to people's denial and prejudice.48 This is clearly a major problem which must be effectively addressed (see also Chapter 20 — Children and Adolescents). Other financial issues affecting people with mental illness are discussed in more detail in Chapter 9 — Community Care and Treatment. Other Private Practitioners Psychiatrists are not, of course, the only practitioners offering services in the private sector. However, for reasons which are addressed in the following chapter (The Role and Training of Health Professionals and Others), the services of psychologists and other health professionals are only available in the private sector on a very limited basis to individuals and families affected by mental illness.49 The Non-Government Sector I have singled out the ways in which GROW has helped me. Some of these had to do with the special kind of sickness I had and my own peculiar delusions and disturbed behaviour. Others (like the need to regain an ordinary pattern of daily living, to be free of drugs and to get back to work) are common to the majority of stories of recovery from severe breakdown... GROW helped me to understand and manage pretty well every aspect of my life — the care of my physical health and personal appearance, all kinds of personal relationships, religion, human inadequacies, the wear and tear of life and even the prospect of death, including the death of loved ones.50 Evidence presented to the Inquiry clearly established that a wide range of non government services (not-for-profit, non-hospital services) are central to effective realisation of the rights of people with mental illness. Equally clearly, such services are frequently regarded as incidental or peripheral to the 'real' effort of psychiatric treatment and rehabilitation. (The most recent comprehensive examination of psychiatric services in Australia confines non-government services to an essentially secondary role.)51 Human Rights and Equal Opportunity Commission Page 149 Compared to their involvement in other fields of human service, the participation of non-government organisations (NGOs) in the mental health field is, on the whole, relatively recent.52 Nevertheless, there is now general acceptance that non-government, not-for-profit organisations are critical to the provision of a wide range of accommodation, advocacy, rehabilitation and support programs for people with psychiatric disabilities.53 Australia has a tradition of utilising such organisations for the provision of a range of health and community services. They are typically supported financially by Government to undertake functions regarded as not appropriately or efficiently performed within the public service system. These groups constitute the non-government sector. Increasingly, NGOs have specialist know-how — and considerable experience — in the care and support of people who would previously have been thought to require treatment in psychiatric institutions. Non-government services offer a blend of professionally trained and qualified staff; staff who bring special qualities and life experience to their role; volunteers; and people who have themselves experienced at first hand the impacts of mental illness and psychiatric disability. Evidence to the Inquiry indicated that NGOs frequently demonstrate qualities of concern, commitment, innovation, advocacy and tenacity — qualities sometimes lacking in Government services. They can be more immediately responsive and flexible than statutory services. They are able to advocate for and with people with psychiatric disabilities in ways denied to staff of Government agencies. Further, they are more likely to be seen as an acceptable part of the fabric of the community, without the unfortunate overtones which often accompany bureaucratic procedures. The range of services that can accurately be described as 'non-government' is extremely broad, encompassing the whole gamut of formal and informal programs conducted by agencies, groups and individuals who assist people with mental illness and psychiatric disabilities. While there are substantial variations among NGOs, they share the following characteristics: • The non-government sector does not provide medically based clinical or treatment services. It does, however, offer a range of 'therapeutic' rehabilitation and support services. • Many organisations have a major advocacy and lobbying role. Page 150 Mental Illness Inquiry • In general, non-government organisations offer services that deal with disability — the functional consequences of an illness or impairment — and not with the illness or impairment itself.54 • Many non-government services provide valuable links between the public psychiatric services and community health sector, and the non-government community services sector.55 The term 'voluntary' is still sometimes applied to the varied collection of nongovernment services. However, because few mental health services are in fact run entirely by unpaid volunteers, this terminology is not used in this report. (Throughout the report, there is reference to the vital contribution of informal care networks — made up of people with psychiatric disabilities themselves, their relatives and friends — which are critical to the wellbeing of people with mental illness. This is the true 'voluntary' care and support sector.) There is a growing category of services, described as community managed, which places particular emphasis on consumer participation and community control. A peak body for organisations with this orientation described their contribution as follows: Non-government, community-managed organisations have been traditionally recognised as essential to the provision of high-quality, cost-effective community and health services... Whether as service providers, self-help, carer or advocacy organisations, they are critical to the success of any truly integrated human services system. They are also the vehicle by which members of the community can participate in the planning, management and delivery of services which they have decided are essential and to which they are prepared to make commitments of time and resources.56 The special characteristics of the sector were described to the Inquiry in the following terms: • the community managed sector has built up a set of philosophies, principles and practices that have proved their cost-effectiveness over many years. • the community managed sector does four things especially well: a) it works in and is part of the wider community, accessing a wide range of community resources: this is true integration and mainstreaming; b) it accepts people as individuals, and doesn't 'treat' them as 'patients'; c) it takes risks (not at the expense of people with mental illness, but on their behalf); and d) it educates, increases awareness, and advocates the cause of people with mental illness in a far less threatening way than can the public sector, which inevitably has authoritarian overtones. Human Rights and Equal Opportunity Commission Page 151 • not only does this result in cost efficiencies: it is the essential 'humanising' and real-world factor that often is missing from public services. • most importantly, the sector is a key safeguard against monolithic medical- administration control over the lives of people with psychiatric disability that is one of the dangers of the mainstreaming of public general health and psychiatric services.57 It is unclear whether the increasing dependence on the non-government, not- forprofit sector stems from economic rationalism — such services typically operate at between one third and one fifth the cost of directly comparable government services — or from a recognition of the benefits provided by the flexibility and responsiveness which characterise these services. Certainly, the requirements of deinstitutionalisation, and philosophies of normalisation or social role valorisation,58 with their emphasis on 'a valued social role for every devalued person', have highlighted the role of nongovernment services. The traditional boundaries between government and non-government psychiatric services seem to be increasingly blurred. This is partly as a result of uncertainties accompanying mainstreaming and the amalgamation of public psychiatric and general health services. It may also be related to changes in funding and accountability requirements and procedures, to inadequate communication and consultation about policy, and to the changing perceptions each group of services has of the other. What They Do The...[non-government] mental health sector has been a critical supplier of support to generic mainstream services who are struggling to adapt to the massive influx of clients with associated psychiatric disabilities seeking access to generic services following 'deinstitutionalisation' and 'normalisation' policies being implemented.59 The Inquiry received oral and written submissions from many non-government organisations. This evidence was supplemented by submissions from peak councils and coordinating bodies in each State and Territory. Evidence presented by governments also confirmed there are a large number of NGOs supporting and providing services to people affected by mental illness and psychiatric disability around Australia. This number increases substantially if NGOs assisting the homeless and those with dementia are included. An enormous amount of assistance is given to people with mental health problems, and those caring for them, by organisations with broad community service charters, such as the conferences of the St Page 152 Mental Illness Inquiry Vincent de Paul Society, the Salvation Army, Uniting and other church agencies, and other religious and secular organisations. Among the extensive range of descriptive labels attached to this wide variety of non-government services, the following are commonly used: accommodation support, advocacy, carer group, clubhouse, community education, community outreach, community support, consumer group, crisis support, day services, day support, employment training and placement, living skills development, outdoor adventure, psychosocial rehabilitation, respite, recreation, self-help, supported accommodation, supported employment, and transitional accommodation. 60 The Australian Psychiatric Disability Coalition Inc (APDC)61 is funded by the Commonwealth Government as the peak body of non-government organisations working with people with psychiatric disabilities. The Coalition proposed a typology of services based on four factors — who provides the service and for whom; what service is provided; how the service is provided; and where services are provided. After analysing the extensive material made available by many NGOs, the Inquiry concluded that the major suppliers of services in the non-government sector can usefully be divided into five main categories. In the first category are organisations formally constituted to offer programs and services directly to people with mental illness which were not traditionally available in the public sector. Such organisations employ staff, place minimal or no reliance on volunteers, and regard themselves as professional providers, whether or not staff have formal professional qualifications. Typical of this category are the Richmond Fellowships — operating in all jurisdictions except South Australia and the Northern Territory; the After Care Association and the Psychiatric Rehabilitation Association, both operating only in NSW; and Casson Homes in Western Australia. These organisations provide accommodation or accommodation support, employment and activity services for people with psychiatric disabilities. A second group of organisations are dedicated to assisting those who experience the direct impacts of psychiatric illness — individuals themselves affected by mental illness, their relatives and friends. These organisations provide support, information, advocacy and other services to and for their members. They may also offer specific programs and services akin to those of the first category, but this is not their primary purpose. Increasingly, these organisations employ skilled and experienced staff in management and coordinating positions, and to train and support volunteers. Among such organisations are the Schizophrenia Fellowships around Australia, the Associations of Relatives and Friends of the Human Rights and Equal Opportunity Commission Page 153 Mentally 111 (ARAFMI), and the Alzheimer's Disease and Related Disorders groups (ADARDS). Closely related is a third category of self-help and mutual support organisations. These vary — from organisations such as GROW, which has professional staff and significant administrative support, to specific-diagnosis bodies, such as the bi-polar mood disorder associations (including the Depressive and Manic Depressive Association of NSW and Self Help Mood Disturbance Prevention in SA); to very small support groups (such as those described to the Inquiry at hearings in Albany, Alice Springs, Cairns, Devonport, and Port Lincoln) for people with a wide range of mental disorders and psychological problems. Fourth, there are organisations which specialise in providing outreach services for people with mental illness. Examples of this type of service are the Macaulay Community Support Service and the Western Region Outreach Service in Melbourne, and a range of smaller organisations in NSW, Western Australia, Queensland and Tasmania. There is a fifth category of organisations which operate as research, advocacy and information sharing bodies, whether on a 'peak' basis (such as the Sydney- based Alliance for the Mentally 111, Australia) or as a voice for consumers in a variety of forums (such as the Victorian Mental Illness Awareness Council). An important group of this type which has recently been established is the National Community Advisory Group, chaired by Ms Trisha Goddard. How They Operate There is an important initial distinction to be made between non-government organisations that operate on a mainly volunteer basis, and those that employ staff. Understandably, volunteer services are more likely to be found in the area of mutual support, information sharing and advocacy than in the provision of accommodation, employment or outreach services requiring significant levels of external funding and rigorous accountability.62 It is now a requirement of government funding that non-government organisations be incorporated and be registered as charitable bodies. In the case of small services (such as 'Youth Link' in Cairns or the 'Oasis Community Centre' in Hobart) there may be an outrider arrangement, with a formally structured agency acting as auspice for the smaller organisation or group. Data in the community health and welfare field are notoriously unreliable, and the Inquiry could not obtain a complete picture of all sources of funding for non-government psychiatric services. Nevertheless, it is clear there are great Page 154 Mental Illness Inquiry variations in the levels and types of support provided. (For example, in NSW in 1991-92, 21 NGOs were funded at different levels by the Health Department to provide mental health services. Eighteen additional organisations received no funding from the Department but were recognised as being 'active in the mental health field'.)63 According to evidence presented to the Inquiry, the Commonwealth, for some years, refused to fund non-government psychiatric services under the Disability Services Act, but is giving this area some priority now that funding of most disability services has been transferred to the States.64 Non-government services generally place a strong emphasis on membership, with maximum participation and direction by members. Most programs concentrate on developing or reaffirming the skills of daily living, interpersonal and social relationships, leisure and recreation. Priority is also given to making the transition to independent living options through the development of personal and social support networks. NGOs often refer to the people with whom they work as participants or members, consumers or users: they rarely talk of people being patients.65 (The Schizophrenia Fellowships refer to 'sufferers'.) This choice of terminology is much more than mere semantics. The terms involved are seen by consumers, carers and non-government providers as characterising a fundamentally different attitude to the involvement and empowerment of people who have long experienced blatant discrimination, stigmatisation, marginalisation, and even victimisation. As already noted, non-government services tend to focus on providing support and rehabilitation. They give particular attention to group interaction and dynamics within a non-institutional setting — to help people gain a sense of security and purpose and to become confident both within themselves and in their relationships with the wider community. Although efforts are being made in some States (especially NSW and Victoria) to gather accurate data on staffing, there is still no detailed analysis of categories of staff employed in the non-government sector. In selecting staff, many NGOs told the Inquiry they place equal importance on personal qualities and professional qualifications and experience. This is a key area of difference with both public psychiatry and the private sector. Non-government organisations see themselves as attracting staff from a variety of backgrounds, with a wide range of experience, skills and expertise. Human Rights and Equal Opportunity Commission Page 155 Nor do Federal or State governments have accurate data on the numbers of volunteers used by non-government organisations. It is known, however, that organisations such as the Schizophrenia Fellowships, Lifeline, the Society of St Vincent de Paul, the Red Cross and the Salvation Army are all heavily reliant on the direct involvement of volunteers in service delivery. The level of such reliance understandably tends to be greater in self-help and mutual support and advocacy organisations. Many, if not most, NGOs have considerable indirect volunteer involvement in fund-raising, administrative assistance, public relations, information and advocacy activities. They also rely on 'help in kind' by way of donations of time, equipment and expertise from the corporate sector.66 Resources Notwithstanding the increasingly important role played by NGOs, the vast majority of resources are still devoted to public psychiatry. In most of Australia the rights of one group can only be satisfied at the expense of other groups, and the reason I put to you is the maldistribution of resources — that more than 80 percent of the mental health budget of the States goes to hospitals who deal with less than 5 percent of the people with mental illness. 95 percent of the mentally ill have to make do with less than 20 percent of the budget.67 This disparity is even more obvious in terms of funding for NGOs. In Victoria, which offers more direct support to non-government services than any other State, only 2.3 percent of Government funding for mental health and psychiatric services was allocated to non-government organisations in 1991-92.68 Yet Victorian Government figures also clearly show that non-government services cater for at least as many 'primary' clients as do government psychiatric facilities.69 In Queensland, it was not until 1990-91 that the then Division of Psychiatric Services established a separate funding program for non-government organisations. Funding has almost doubled since the Inquiry began (increasing from $559,561 in 1990-91 to $966,999 in 1992-93).70 However, this is still a tiny fraction (approximately 1 percent) of the State mental health budget. NSW provided a total of $2,330,550 to community organisations in 1991-92, a mere 0.7 percent of its mental health budget.71 It has clearly emerged from evidence presented to the Inquiry that, in every State and Territory, non-government services are the poor cousins of public psychiatric service provision throughout Australia. As a result, there is a Page 156 Mental Illness Inquiry tendency for not-for-profit services to 'make do' — both in terms of numbers of staff and remuneration levels, and in relation to the costing of overheads. • [Governments have] recognised the value of the non-government sector by entering into funded contractual arrangements with both support groups and service providers and self help groups in an effort to ensure that the individual and family receives ongoing support in integrated services. However, many of the groups still go unfunded and there is a need for much greater resourcing in that area.72 • We handle anything between 30 and 50 people per day. We offer them a meal at a very reasonable price, continuous tea and coffee, a social atmosphere... Our biggest problem, of course, is finance — as with any community based organisation — and we find we do not have the money to meet the programs we would like to provide for those who come to us.73 • There is an awful lot of energy going into raising money when the demands on our services in terms of counselling, education, support and direct service provision are so great. I feel it is a great shame that we are having to put so much [effort] into just trying to keep our heads above water financially.74 On the basis of the evidence there is an urgent and compelling need for more, and more adequately resourced, non-government services. This applies equally to the scope, distribution and quality of such services. Scope Self-help and mutual support is the most common type of service provided by NGOs. This ranges from very localised mutual support services that may be sponsored by a church or community group (including a few through multipurpose neighbourhood houses) to major support networks, such as those managed by the Schizophrenia Fellowships, ARAFMI and GROW. Accommodation and support services appear to be the dominant category in terms of Government funding. In NSW, for example, 54 percent of its 1991-2 non-government organisation budget was allocated to accommodation and support services.75 The Victorian Office of Psychiatric Services indicated that 44.2 percent of its 1991-92 allocations to NGOs was attributed to 'accommodation services', defined as 'residential rehabilitation, supported housing, homebased/outreach housing support and respite services'.76 It was widely accepted by witnesses giving evidence to the Inquiry that secure, affordable accommodation, with support appropriate to the needs of individual residents — including access to complementary rehabilitation programs — is fundamental to the rights of mentally ill people. Lack of secure accommodation and appropriate support was generally identified as a major cause of readmission to hospital. Human Rights and Equal Opportunity Commission Page 157 The next most common form of service in this sector appears to be what NSW categorises as 'support and self-help' (consuming 24 percent of the Health Department budget for NGOs in 1991-92).77 In NSW, this category includes day programs of various types. There are no directly equivalent figures available for Victoria: the minimum data set there reports 18.2 percent of the Office of Psychiatric Services budget for NGOs as allocated to 'support and advocacy services', identified as including 'mutual support/self-help groups, other support groups, individual advocacy and system advocacy/education services.'78 There are fewer non-government services specifically aimed at employment and employment opportunities for people with psychiatric disabilities. In NSW, for example, 13 percent of the Health Department's 1991-92 budget for nongovernment organisations was allotted to 'work and living skills' programs.79 The Schizophrenia Fellowships have commenced 'Clubhouse' programs (see Chapter 12 — Employment, for more detail); and several of the Richmond Fellowships have successfully piloted work and living skills services. Specialist organisations such as the Psychiatric Rehabilitation Association in Sydney and the Outer East Council for Developing Services for the Psychiatrically Disabled in Melbourne have provided work programs over many years. Fewer NGOs offer outreach services aimed at assisting people at risk of mental disorder who resist formal treatment and support services. Nevertheless, there have been significant initiatives taken by a few organisations, such as the Macaulay Community Support Service operating in the inner urban area of Kensington in Melbourne; and the Richmond Fellowship of Victoria, which has initiated a pilot outreach service for young homeless women at risk of psychiatric illness and disability. There is also less involvement by NGOs in the provision of independent case management or coordination. While the principles of case management seem well accepted — and the Inquiry received impressive evidence of the benefits of systematic planning and follow-up for the users of services80 — there was limited evidence concerning the role of non-government services in this regard. Certainly, Australia does not seem to have many independent 'brokerage' services such as those developed in parts of North America.81 Clearly, there is not only an urgent need for more accommodation and support services, but there is also an opportunity for a broader range of services that might appropriately be managed in the community by non-government organisations. Page 158 Mental Illness Inquiry Such services could include respite and emergency accommodation, both for individuals with mental illness needing a change of setting and for those caring for people with psychiatric disability in their own home; a significant expansion in early intervention and outreach services, seeking to prevent unnecessary and inappropriate readmission to hospital; employment services specifically geared to recognition of the episodic nature of much psychiatric disability; information and referral services that draw on a variety of community resources; and creative leisure and recreational programs. Distribution It is particularly disturbing that there are so few non-government (or indeed government or private sector) services outside our capital cities. And the situation is worse if other major population centres are excluded. This maldistribution was clearly illustrated in evidence given in places such as Cairns and Townsville, Port Lincoln, and Albany. During the Inquiry's Townsville hearings, for example, Mrs Margaret Herring, President of the Schizophrenia Fellowship of North Queensland, pointed to alarming imbalances in the availability of the whole range of community support services in metropolitan, provincial and rural centres of Queensland. Resources are so lacking in North Queensland that significant numbers of people with schizophrenia are denied access to adequate care... Of the total of 290 psychiatrists in Queensland, 160 work in Brisbane. There are 46 between Brisbane and Mackay, there are 14 north of Mackay. North Queensland, therefore, with 17.6 percent of the population has 6 percent of the psychiatrists... As well as the staff placement in rural areas, there needs to be the necessary professional development and support to ensure continuity of service. On a recent visit to Innisfail one of our workers was horrified at the conditions for people with schizophrenia and their carers in that town... When [assistance] does occur it tends to centre on medication — with very little on-going support given as a general rule.82 Moreover, the distribution of services even within metropolitan areas is extremely uneven. Material provided to the Inquiry by the Victorian Commmunity Managed Mental Health Services Inc exemplifies the concentration of acute treatment facilities in most States, and the consequent 'clustering' of nongovernment providers — which must have ready access to treatment and crisis intervention services. Examples of Effective Non-Government Services The activities and programs of a number of excellent non-government organisations (including ARAFMI and ARAFEMI; the Schizophrenia Fellowships; the Mental Health Associations; the Richmond Fellowships; the Human Rights and Equal Opportunity Commission Page 159 Alzheimer's Association; Bromham Place Clubhouse; the After Care Association; the Manic Depressive support groups; PALA; The Post and Ante-Natal Depression Association (PanDa) and Christian communities such the Salvation Army, the Society of St Vincent de Paul, Emmanuel Centrecare in Perth and the Prahran City Mission in Melbourne) are mentioned elsewhere in this report. However, the following programs are briefly described at this point to give specific examples of a variety of effective non-government programs, often in areas which have been otherwise neglected. Charmian Clift Cottages (Outer Western Suburbs, Sydney) Charmian Clift Cottages in Sydney's western suburbs provide supported accommodation for women with a psychiatric disability and dependent children. It is one of the few crisis facilities in Australia which accepts women with children and is unique in the range of services it offers. Most importantly, programs allow women to interact with their children while receiving care and support from staff. The programs include personal development, parenting groups, child development, playgroups and a pre-schoolers' program. The growing number of residents now living at Charmian Clift confirms the need for similar services 'to provide safe, secure, non-judgmental support whilst clients and their children regain the ability to overcome their fears, manage their illness and reside independently in the community.'84 Macaulay Community Support Association (Inner Melbourne, Victoria) The Macaulay Community Support Service was established as a result of concerns by residents and a range of community and tenant groups in North and West Melbourne, Kensington and Flemington — a densely populated area with many residents accommodated in public housing. These concerns included the isolation and lack of support for people with psychiatric disabilities, together with the difficulties being experienced by their neighbours in high rise flats. Macaulay provides an outreach service using community support workers who engage with people in the ordinary, everyday environment. Participants not only learn and practise community living skills in familiar surroundings, they also have the benefit of support through face-to-face contact with local officials (including Social Security or Housing department personnel), neighbours and local shopkeepers. The Service began operations in 1987. Since that time it has been able to report substantial reductions in hospital admissions for those who had participated; major changes in the extent to which participants were engaged with local Page 160 Mental Illness Inquiry community services important to their needs; and improvements in quality of life and personal satisfaction.85 June O'Connor Centre (Perth) The June O'Connor Centre in Subiaco is the only drop-in centre in Perth. It offers support services and recreational activities to young people with a serious mental illness who live in the community. People may attend as frequently or infrequently as they choose. Activities do not require daily or weekly attendance, and although participation is encouraged it is not mandatory. Monthly attendance has exceeded 600 and referrals have had to be refused in order to deal with the number of clients. Ninety percent of people have a diagnosis of schizophrenia and all clients have follow up care at community health centres.86 Outcare: Civil Rehabilitation Council of Western Australia Outcare provides a range of support services to offenders, ex-offenders, and their families. One important service is the provision of short-term accommodation to newly released prisoners. Increasingly, Outcare is dealing with mentally disordered offenders.87 Outcare emphasised in evidence to the Inquiry that all people released from prison without adequate support face the very real risk of reoffending. For those with psychiatric disabilities this risk is compounded not only by their health problems, but also by the lack of suitable community care.88 The Outer East Council for Developing Services in Mental Health (Victoria) The Council services the outer eastern region of Melbourne (covering the areas of Nunawading, Ringwood, Croydon, Lilydale, Healesville, Upper Yarra, Sherbrook and Knox) and provides three main programs, Halcyon, Crest and Groundwork.89 Halcyon, situated in Ferntree Gully (an outer suburb of Melbourne), has become an accepted part of the community and is not seen as 'different'. Apart from a normal name plate at the front door there are no other signs to distinguish it from surrounding homes. Human Rights and Equal Opportunity Commission Page 161 Programs focus on participants' personal development and cover the areas of stress management, confidence building and physical challenge. A computer training program is also provided. About 20 people attend each day. They are expected to make a commitment to their personal program and each is allocated a worker with whom they can evaluate progress and discuss day to day problems. The Crest supported accommodation project comprises four group homes, five two bedroom units and four single units. They accommodate 29 residents in the region, each with a project worker available from 9am to 5pm. The houses in Bayswater, Croydon, Ringwood and Lilydale are suburban family homes, supplied by the Victorian Housing Department. Residents pay 20 percent of their pension towards rent and make a contribution toward living and household expenses. Each person has a program and together with the worker sets individual goals and regularly assesses progress. Groundwork was established in 1989 as Australia's first specialist employment placement service for people with psychiatric disabilities. Groundwork provides a service for approximately 50 clients. The average waiting period for new clients seeking assistance is approximately nine months. The project's success is demonstrated by the fact that in the six months up to February 1993, 26 clients had undertaken vocational training courses and 11 clients had secured employment. (Given the depressed labour market and the increased competition for positions, this is an impressive achievement.) Link-Up (Queensland and NSW) Link-Up is an Aboriginal organisation that works with Aboriginal adults who were separated from their families as children. These children were either institutionalised, fostered or adopted. Link-Up offers assistance to people who want to be re-united with their natural families and communities or who want to regain their Aboriginal identity. For some clients, follow-up counselling has continued for many years. The process of recovery prior to and following the initial reunion lasts as long as Link-Up's clients need their services.90 Page 162 Mental Illness Inquiry Out Doors Incorporated (Victoria) Out Doors Inc is a Victorian community managed mental health service which provides a Statewide, outdoors-based rehabilitation program for people with mental illness.91 Out Doors manages a number of programs, most notably the Going Places outdoor adventure education project. Going Places works with 12 participants and 12 support people at a time. The program normally runs for four months and participants attend four days per week. They participate in a range of half and full day activities in the urban environment, as well as several five-day camps in bush and wilderness settings. Going Places aims to provide an opportunity for people to develop a more positive self image, to practice social skills and gain new insight into their potential capabilities by participating in interesting, challenging and socially valued activities. Activities offered include bushwalking, camping, orienteering, environmental education, canoeing, rafting, abseiling, rockclimbing, caving and cross-country skiing. Sandridge Program (Victoria) The Sandridge Program, run by the Richmond Fellowship Victoria, is an innovative service for homeless young people between the ages of 16 and 25. It aims to provide: a) a program which addresses a range of issues for young people who have experienced severe abuse or have been subject to some form of life trauma; b) early intervention in the lives of young people who have become inappropriately involved with the psychiatric system and to prevent chronic psychiatric disability developing. After approximately 12 months, residents of Sandridge House can move into Sandridge Extension. This is a block of ten one-bedroom flats, supported % two workers and a live-in 'caretaker.' The emphasis is on supporting the yoi»g people in developing a satisfying lifestyle and future directions. Developing a sense of community between the members of the Extension is also seen as «n important means of mutual support. Human Rights and Equal Opportunity Commission Page 163 Schizophrenia Fellowships The Schizophrenia Fellowships throughout Australia aim to promote the welfare of schizophrenia sufferers, their friends and relatives.92 Originally established as self-help organisations where members (primarily relatives) offered each other information and support based on the sharing of experiences, the Fellowships now employ full-time and part-time staff and many volunteers in a wide range of programs. Schizophrenia Fellowships run a wide range of activities and provide extremely important support to their members. Although services vary from State to State, they include: • Information and support services • Rehabilitation programs • Accommodation facilities • Community education • Advocacy and lobbying for improved legislation, treatment, hospital and community care and research. Conclusion The Inquiry considers three points need to be made about non-government services for people affected by mental illness in order to place their contribution in context and in proportion to the needs they are addressing. First, the effects of deinstitutionalisation and other recent policy changes mean that non-government organisations are being asked (and are attempting) to provide expanded services with extremely meagre (and in some cases dwindling) resources. Second, the peak bodies of non-government organisations presented convincing evidence that their members are constantly asked to offer assistance to people who are regarded as 'non-treatable' within the public (Government) psychiatric system. Third, State and Territory governments need to make a much greater effort to relate effectively with non-government services. In particular, mental health services planning needs to take into account the important distinctions between: Page 164 Mental Illness Inquiry (a) treatment and treatment-related services that are necessarily (in a medicolegal sense) going to be medically oriented — and which in a medical setting are necessarily addressing acute episodes; (b) on-going care that is an extension of the treatment regime (and is analogous to palliative care); (c) rehabilitation that is an extension of and related to treatment regimes; (d) what are termed 'psychosocial' services that combine 'asylum' (transitional accommodation), rehabilitation/skills development and enhancement, and offer support, encouragement and confidence-building through a wide range of programs and activities. There are further distinctions to be made between those services that are directed to the person with mental illness (primary); those that support relatives and carers who are themselves supporting people with mental illness (secondary); and tertiary services that foster better attitudes/improved access of people with mental illness (and their carers) to services they need. Given the present poor status of mental health services throughout Australia, State and national mental health plans must urgently undertake: (a) to substantially increase resources allocated to primary, secondary and tertiary non-government services; (b) within these allocations, to ensure that there is a substantial increase of currently available 'places' (whether residential, day, or home support);and (c) to substantially improve access to non-psychiatric government programs and services, such as HACC, Housing Agreements, SAAP etc, under which non-government bodies can improve their provision of services to people with mental illness and their carers. Human Rights and Equal Opportunity Commission Page 165 1. Extract from an article by Dr Norman James, former President of the Royal Australian and New Zealand College of Psychiatrists, quoted in 'Don't crack up in public', The Bulletin Aug 3, 1993, p30. 2. The population of psychiatric inpatients in Australia has declined from 281 beds per 100,000 in the early 1960s to 40 beds per 100,000 in 1992 — an 86 percent reduction. 3. National Health Strategy, Help Where Help is Needed: Continuity of Care for People with Chronic Mental Illness, Issues Paper No5, AGPS, Canberra 1993, p22. 4. ibid, p46. 5. Figures provided to the Inquiry by officials of the Victorian Department of Health and Community Services suggest that approximately 5 percent ($400,000 out of $7.8 million) was allocated last financial year as CSDA 'transitional funding', for the enhancement of existing psychiatric services. However, some 28 percent ($750,000 of $2.7 million) has been nominated as 'growth' funding, for services expansion to meet identified needs. Current projections are that at the end of the three-year period, about 10 percent of total CSDA funding in Victoria will be allocated to psychiatric disability services. 6. Help Where Help is Needed, op cit, p46. 7. 'The ambit of the Plan does not include matters more properly covered by existing Commonwealth/State arrangements/Agreements, such as the Commonwealth/State Disability Agreement and the Commonwealth/State Housing Agreement. It is noted that both these agreements have responsibility for providing non-discriminatory services to the community, including people who have a mental disorder or mental health problem.' Australian Health Ministers' Conference, National Mental Health Plan, AGPS, Canberra 1992, p5. 8. ibid, p22. 9. The remaining 1.5 percent was allocated to administration expenses for bodies such as Review Tribunals etc. 10. Adapted from the NSW Mental Health Services Strategic Plan, Leading the Way: A Framework for Mental Health Services 1991-2001, NSW Health Department, 1992. Other analyses studied by the Inquiry include those from the Office of Psychiatric Services, Victoria; the Area Integrated Services Standards Project in NSW (also see Chapter 9 — Community Care and Treatment); the Australian National Association of Mental Health; and the Australian Psychiatric Disability Coalition (formerly the National Coalition of Mental Health and Psychiatric Disability Groups). Reference is made elsewhere in the report to Prof G Andrews' findings in The Tolkien Report: A Description of a Model Mental Health Service, Sydney 1991, which offers a slightly different perspective. 11. According to this model, there should be ten mobile community health workers per 200,000 population. (Current numbers fall far short of this.) 12. A minimum of 20 beds per 200,000 population. 13. M J Pavone, Australian Catholic Health Care Association, Victoria. Submission. 14. John O'Neill, Administrator, Lakeside Hospital, Ballarat. Oral evidence, Ballarat 11.4.91, p547. 15. Prof Vaughan Carr, Department of Psychiatry, University of Newcastle. Submission, p3. 16. id. 17. Dr David Lord, consultant psychiatrist, Fremantle Hospital and representative, WA Branch, RANZCP. Oral evidence, Perth 11.2.92, pl37. 18. 'Thus reducing awareness of the person's total wellbeing and the need to establish [a concept of health] that incorporates social, vocational and leisure aspects.' Lisa Brophy, Page 166 Mental Illness Inquiry Association of Mental Health Social Workers, Victoria. Submission, p3. This subject is also considered at greater length in Chapter 9 — Community Care and Treatment. 19. id. 20. Marcia Fawdry and Julie Roach, Tasmanian Community Health Association. Submission, p2. 21. See Chapter 6 — The Role and Training of Health Professionals and Others. 22. Prof Gavin Andrews, Professor of Psychiatry, University of NSW and Director of Health Services Research Group, Clinical Research Unit for Anxiety Disorders, St Vincents Hospital. Oral evidence, Sydney 17.6.91, pp46,47. 23. National Mental Health Policy, op cit, p20. 24. Including Leading the Way: A Framework for NSW Mental Health Services 1991- 2001, op cit, and Office of Psychiatric Services, Policy and Strategic Directions for Public Psychiatric Services in Victoria, Melbourne, 1992. 25. See, for example, Dr John Hoult, Director of Clinical Psychiatry, Glebe Community Care, NSW. Oral evidence, Sydney 20.6.91, p408. 26. O'Neill, op cit, p544: 'We need to increase the number of psychiatric nurses working in the community [so] we can provide day hospitals, day care, long-term hostels and a range of services to enable our former patients to live with some dignity in the community.' 27. ibid, p540, 'There is no process...whereby we can facilitate the transfer of staff...to other areas.' 28. Andrews, op cit. 29. ibid, p50. See also O'Neill, op cit, concerning resistance to reforms in Victoria. 30. Prof Graham Burrows, Chairman of the Mental Health Foundation of Australia. Oral evidence, Melbourne 9.4.91, p233. 31. Evidence on this point was given by a series of witnesses at Inquiry hearings in Cairns, Townsville, Albany and Port Lincoln. 32. James, op cit, p30 33. The study, conducted in Massachusetts, concluded that the number of long term beds required was approximately 150 per one million people (ie approximately 2,550 beds would be required for Australia's population of 17 million). The categories of individuals requiring such intensive institutional care were: Beds per 1.000,000 The elderly 30 The intellectually disadvantaged 30 Those with acquired brain damage 15 The psychotic and assaultive 25 The chronic psychotic, disruptive and endangered 50 Total 150 Andrews, op cit (p2), contends that we need 10 long stay and 15 acute beds per 100,000. 34. National Mental Health Policy, op cit, p24. Human Rights and Equal Opportunity Commission Page 167 35. Dr David Wells, Head of the Office of Forensic Medicine, Victoria. Oral evidence, Ballarat 11.4.91, pp595-596. 36. Also see Chapter 6 — The Role and Training of Health Professionals and Others, which cites the findings of a survey which indicates that psychiatrists see 77 percent of their clients in private practice and 23 percent in the public sector. 37. Information from Help Where Help is Needed, op cit, pp 103-104. Also see Chapter 6 — The Role and Training of Health Professionals and Others. 38. Dr Jonathan Phillips, Director of Postgraduate Training, RANZCP, quoted in 'Don't crack up in public,' The Bulletin, Aug 3, 1993, p31. 39. See previous section on Government Services. 40. Elizabeth Bleby, social worker, Guardianship Board of South Australia. Submission, p6. 41. Robin Gurr, President, Council of Social Service of NSW. Submission, p6. 42. Help Where Help is Needed, op cit, ppl06-107. 43. Win Leslie, carer. Oral evidence, Ballarat 11.4.91, p627. 44. Help Where Help is Needed, op cit, pl07. 45. ibid, ppl07-108. 46. NSW Health Department, Leading the Way: A Framework for NSW Mental Health Services 1991-2001, Sydney, 1991, p26. 47. Correspondence to the Inquiry from Dr Sandra Hacker, psychiatrist in private practice. 48. Information provided to the Inquiry by Dr Bill Pring, representing the Section of Psychiatry, Australian Medical Association, Victoria. 49. Various aspects of this issue are discussed in Chapter 6 — The Role and Training of Health Professionals and Others, and Chapter 9 — Community Care and Treatment. 50. From 'Joannie's Story' — information provided to the Inquiry by the GROW association. The Inquiry heard from members and representatives of GROW at its Sydney and Darwin hearings. 51. P Eisen and K Wolfenden, A National Mental Health Services Policy: Report of the Consultancy to Advise Commonwealth, State and Territory Health Ministers, Department of Health, Housing and Community Services, AGPS, Canberra 1988. 52. There are exceptions (such as the After Care Association of NSW, founded in 1907). However, the Victorian Community Managed Mental Health Services Inc (VICSERV), for instance, states that 'non-government organisations have been providing services and support to people with psychiatric disabilities in Victoria, and their carers, for over 25 years.' (From 'The Non-Government Psychiatric Disabilities Sector: Strategies for the Future', in New Paradigm, VICSERV Newsletter, Sept 1992, ppll-18.) This contrasts with general welfare services, where non-government organisations have been the major providers for well over a century. 53. The term 'rehabilitation' has many applications in the psychiatric services field. For community managed organisations, it refers to a wide range of programs with 'psychosocial' objectives, ranging from basic living skills through to complex independent living goals. In the public psychiatric system, it is likely to relate to the immediate post-acute phase of a treatment plan. 54. The nature of psychiatric conditions is such that the distinctions are far more blurred than in, say, the physical and sensory disability areas. Page 168 Mental Illness Inquiry 55. 'These links are long-standing, and form part of an informal, integrated network with mainstream community health and generic community support services.' Submission by VICSERV relating to the report of the National Mental Health Task Force, January 1992. 56. 'The Non-Government Psychiatric Disabilities Sector: Strategies for the Future', op cit. 57. From material provided to the Inquiry by The Richmond Fellowship of Victoria, July 1992. An extended analysis of the characteristics and benefits of non-government community managed services is provided in the VICSERV paper quoted above. 58. These concepts owe a great deal to work undertaken over many years by Wolf Wolfensberger, initially focussing on the integration of people with ntellectual disability into the general community. (A 1989 booklet produced by the Research and Advocacy Unit of Wesley Central Mission in Melbourne, Changing Lives, Changing Communities, is a useful introduction for those interested in the principles of social role valorisation). 59. Submission by VICSERV relating to the report of the National Mental Health Task Force, January 1992. 60. As indicated elsewhere in this report, many NGOs provide a combination of these services. 61. Formerly the National Coalition of Mental Health and Psychiatric Disability Groups. 62. The point should be made that reliance on external funding can affect an organisation's effectiveness as an independent lobbyist or watchdog. See, for example, Liz Dalston, Director of the Mental Health Association Resource Centre. Oral evidence, Adelaide 22.10.91, pl65. 63. Leading the Way, op cit, p26 and Appendix G. 64. Note, however, that employment services remain the direct funding responsibility of the Commonwealth. 65. There are exceptions. Representatives of the Victorian Mental Illness Awareness Council, then representing 32 consumer self-help and advocacy groups across the State, whilst vehemently opposed to the labelling of people with psychiatric illness, were relaxed about use of the term 'patient' and indicated that many of their members preferred this to 'consumer' or 'client'. Oral evidence, Melbourne 9.4.91, p271. 66. The Australian Psychiatric Disability Coalition Inc has informally estimated that such assistance could amount to the equivalent of a 10 percent increase in the budget of most government-funded non-government organisations. 67. Hoult, op cit, p408. 68. 'The Non-Government Psychiatric Disabilities Sector: Strategies for the Future', op cit. This figure of course refers only to not-for-profit services. Profit-oriented mental health and psychiatric services are 'subsidised' through the public purse only in regard to Medicare health benefits. 69. Office of Psychiatric Services, Minimum Data Set Summary Report, op cit; and Policy and Strategic Directions for Public Psychiatric Services in Victoria, January, 1992. 70. Help Where Help is Needed, op cit, p78. 71. NSW Health Department, Annual Report 1991-92, Sydney 1992, pp65,143. 72. Joy Said, Executive Director, After Care Association of NSW. Oral evidence, Sydney 17.6.91, p33. 73. Chris Pollard, Oasis Community Centre, Hobart. Oral evidence, Hobart 11.11.91, pl24. 74. Dalston, op cit, pl65. 75. It is assumed that this figure includes funding of what in some States are known as 'transitional residential rehabilitation services'. Leading the Way, op cit, Appendix G, p65. Human Rights and Equal Opportunity Commission Page 169 76. Office of Psychiatric Services, Victorian Department of Health and Community Services, Non-Government Services Minimum Data Set Summary Report: Draft Version for Non-Government Workshops, Oct 1992, p8. 77. Leading the Way, op cit, Appendix G, p65. 78. Minimum Data Set Summary Report, op cit, p8. 79. Leading the Way, op cit. 80. The Project Focus program of the Office of Psychiatric Services in Victoria has thoroughly documented both the principles and practice of case management in the public psychiatric services system, and has recently worked with non-government organisations to extend its analysis. See Office of Psychiatric Services, Victorian Department of Health and Community Services, Project Focus — Manual for Psychiatric Services in Victoria, Melbourne 1992. 81. The Independent Living Foundation of Vancouver and several services in Wisconsin are examples. The Inquiry is also aware of a number of Commonwealth Government pilot projects which are trialling a brokerage model of community care for people with dementia. 82. Margaret Herring, President, Schizophrenia Fellowship of North Queensland. Oral evidence, Townsville 12.8.91, pl244. 83. 'The Non-Government Psychiatric Disabilities Sector: Strategies for the Future', op cit. 84. Nan Allen, Chairperson, in the Charmian Clift Cottages Fifth Annual Report, 1990-91. 85. Information provided by Mary Wynne, Chairperson of the Macaulay Community Support Association, in her submission to the Inquiry. 86. Information provided to the Inquiry by Anne Parker, Coordinator, June O'Connor Centre, Perth. 87. For an explanation of the increasing demands in this area, see Chapter 25 — Forensic Patients and Prisoners 88. Information from a submission made by Marion Leach, Manager Support Services, Outcare, Western Australia. 89. Information from a submission made by Maurice Mead, Executive Director, The Outer East Council For Developing Services in Mental Health, Victoria. 90. From a submission by Carol Kendall, Coordinator, Link-Up, NSW. 91. Information provided to the Inquiry by Vic Issell, Coordinator, Going Places Project, Out Doors Inc, Victoria. Submission, ppl-2. 92. Rosemary Webster, President, Schizophrenia Fellowship of Victoria. Submission, ppl-3. Page 170 Mental Illness Inquiry Chapter 6 THE ROLE AND TRAINING OF HEALTH PROFESSIONALS AND OTHERS As part of my job as Senior Clinician within a hospital, at any one week, I'm on duty for seven days and on call for 24 hours. Each of my colleagues tells me at the end of a seven-week period that they have usually written out their resignation two or three times because of the frustration that they have experienced. And the frustration largely relates to resource problems. It is a terrible business to be on the receiving end of these calls for help and not to be able to respond; to be juggling for a catchment area of half a million people, with 160 beds, and have only one or two beds available, if you're lucky, on each day. That's an extraordinarily frustrating experience...it is not what we were trained for and most of my colleagues say...'I'm not going to put up with this for much longer'.' The Views of Health Professionals Psychiatrists The quality of psychiatric treatment and care has an enormous impact on the welfare of many individuals affected by mental illness — and the profession, until recently arguably among the most complacent, has been getting the message. Psychiatric treatment available to people should be of a high standard. In this regard the Royal Australian and New Zealand College of Psychiatrists has recently expanded its structure to include a Board of Practice Standards which embraces the issues of quality assurance and peer review, and is involved in contributing to the maintenance of adequate standards and public confidence in these standards.2 Witnesses and submissions to the Inquiry expressed concern, however, that no formal national mechanism for the regulation and maintenance of standards of psychiatric care currently exists. To my knowledge, I am the most isolated psychiatrist in the world... In the past 4 1/2 years, neither the Health Department nor the College have ever lifted a finger to audit my performance... As regional psychiatric services spread, this will become more of a problem...At my first branch meeting as a member of the College (February 1978) I proposed that members should be re-examined every seven years or so as a means to maintaining standards. Since then, the College has fiddled around with various peer review or continuing education schemes but these have mostly been insipid and non-threatening. Patients deserve a guarantee that their psychiatrist has not just passed his Fellowship, but is actively continuing his education.3 Human Rights and Equal Opportunity Commission Page 171 This lack of self-regulation is due, in part, to the lack of regulatory powers enjoyed by the Royal Australian and New Zealand College of Psychiatrists. While the profession has made attempts to address the issues of psychiatric standards, quality of care and professional conduct,4 evidence to the Inquiry repeatedly emphasised that these issues need to be clearly articulated, reflected in appropriately defined standards and enforced in a nationally uniform fashion.5 One might well deduce that you can't trust the medical profession...to regulate itself, not because they are intrinsically wicked but because...the medical profession has no power. Unlike the law, where lawyers conduct their own inquiries into themselves and have the power to regulate, the Royal Colleges...or the Australian Medical Association...really can't do anything except approach statutory bodies and ask them to do something — and if they do nothing, nothing is done.6 The Inquiry heard many allegations — including several concerning the conduct of certain psychiatrists employed on behalf of insurance companies. It was alleged some psychiatrists were used by insurance companies to intimidate compensation claimants: The doctors used by insurance companies have been picked out...for their hard line against compensation claimers and many patients have complained to me about the brutal manner (in which they have been treated)... A code of conduct for medico-legal examinations should be instituted... Some psychiatrists were quite upset at my...suggestions that...they were in fact abusing and mistreating patients in doing legal reports. They felt that it was their job to take an adversarial approach and in fact carry out what is virtually an inquisition into the patient... Their attitude was that unless the patient was distressed or upset they weren't likely to obtain the truth in the consultation. This of course is to the detriment, in my opinion, of the patient's mental health and is quite unethical.7 Other issues also concerned members of the profession or had a significant impact on their perception of themselves or their professional roles. The relatively recent transition from hospital-based treatment and care to community-based care has substantially altered the traditional role and functions of mental health professionals. Witnesses and submissions to the Inquiry indicated that working in a multidisciplinary community-based environment has caused, and still causes, certain psychiatrists some confusion and disquiet. Other mental health professionals can and do perform many of the functions that were, formerly, exclusively the domain of psychiatrists. I'm a great believer in the multidisciplinary therapeutic team and I think that there are few areas in which only one branch of the mental health professions must [work] in isolation... For example, a psychiatrist might happen to be very good at psychotherapy, but in my opinion, that can often be done by psychologists or a psychiatric nurse if they're interested and skilled in that area. I think leadership is another issue. It usually ends up that psychiatrists are the people in Page 172 Mental Illness Inquiry charge of multidisciplinary teams. I personally think that the person who has leadership qualities should be utilised, whether they're a psychiatrist or whether they are a social worker, psychologist or what have you.8 Because psychiatrists now treat the majority of patients in the community rather than in hospital,9 it is necessary to clarify the community treatment role and functions not only of psychiatrists but also other mental health professionals. Some psychiatrists are concerned about the lack of clear career structures and financial incentives: The problem is the lack of rewards inherent in such a system, for in the absence of any career structure that provides for rapid occupational advancement in return for expert service, there is little inducement for skilled personnel to work hard in a community service.10 In addition, evidence to the Inquiry suggested that the role of psychiatrists in supporting professional caregivers in community-based care is not adequately recognised in the structure of Medicare rebates. [Professional] caregivers and community groups need to be supported in their role to attempt to minimise the impact that mental illness has on the individual's family and the community. In each case Medicare funding for psychiatric consultations with support givers is only available for a limited number of consultations. In the treatment of individual patients consideration must therefore be given to the value of providing consultations to those affected by the mentally ill and to more appropriate funding of such consultations.11 The Inquiry also heard that there has been a steady (and in some States, such as South Australia, alarmingly rapid) movement of psychiatrists from the public sector to private practice.12 Poor financial rewards and lower job satisfaction in public sector employment were often cited by psychiatrists as the main reasons for this disturbing trend. Psychiatrists in the public sector obviously make a number of sacrifices to stay there, not the least working with the frustration of under-serviced and stigmatised systems which are overbureaucratised with patients with the most severe and often intractable disorders... The financial disparities of course, are also an issue... [Psychiatrists work in the public sector] because they have, I believe, a commitment, at times even a passion, for the rights of the mentally ill.13 The Honorary Secretary of the Royal Australian and New Zealand College of Psychiatrists suggested that to entice psychiatrists back to the public sector, their role needs to be reviewed and clarified. The role of the psychiatrist in the process of psychiatric treatment within the public sector is no longer clear and is constantly being challenged... To restore adequate participation of psychiatrists in Australian public psychiatric facilities a review of the role of the psychiatrist in those facilities is required, ensuring that there is sufficient job satisfaction, adequate financial incentives, etc.'4 Human Rights and Equal Opportunity Commission Page 173 Evidence to the Inquiry clearly indicated that the recent movement of significant numbers of psychiatrists from the public to the private sector has restricted the access of many Australians affected by mental illness to effective psychiatric management — due to the substantially greater costs of private treatment. (Also see Chapter 5 — Mental Health Services, concerning the role of the private sector in the treatment of mental illness.) In view of dramatic changes in the distribution of psychiatrists (and to a lesser extent ancillary services) from the public to private sector, and the resultant decline of public psychiatric facilities in Australia, many of the chronically mentally ill have minimal access to psychiatric management.15 From the perspective of professional responsibilities and training, this shortage of psychiatrists in the public sector places additional burdens on mental health facilities and quite unreasonable demands on staff. The shortage of psychiatrists in the public sector [makes it difficult to] provide for leave relief, both recreational and study and conference leave, as well as increasing pressure on the on-call roster. The College of Psychiatrists has also expressed concern at the lack of opportunities for ongoing education for psychiatrists, due to their inability to take leave easily.16 A recent survey of psychiatrists illustrates the extent of this movement and the impact it has had on the role and functions of psychiatrists. The survey was conducted to determine whom psychiatrists saw and what treatments they carried out.17 With regard to patient consultations, 77 percent of patients were seen in private practice. Only 23 percent were attended to in the public sector. Evidence also confirmed what was obvious throughout the Inquiry — that public sector patients suffered from more serious mental illnesses than the private sector patients.18 Approximately 60 percent of patients seen in private practice suffered from a neurosis or personality disorder. (Only a quarter of the public sector patients received one of these diagnoses.)19 Patients in the public sector were also twice as likely to be prescribed drugs — especially anti-psychotic medication — whereas private sector patients were twice as likely to be in psychotherapy. Private patients were seen twice as often and were expected to receive two and a half times as many consultation hours as patients in the public sector. If one estimates the number of patients in care and not the number of consultations, then a psychiatrist's case load in terms of diagnoses is 40 percent psychoses, 40 percent neuroses, 6 percent personality disorders and 6 percent children's disorders reflecting both the prevalence of these disorders in the community and their perceived seriousness.20 Page 174 Mental Illness Inquiry The Inquiry heard that some psychiatrists (in spite of their extensive training at public expense) have abandoned both the public sector and the treatment of patients with serious mental illness. One professional witness suggested21 that if many psychiatrists do not wish to work with these patients within the public sector, then psychologists and psychiatric nurses who are prepared to do so should be given special training and allowed to prescribe psychiatric medication. The Inquiry also heard that the separation of mental health care funding from the overall health system has an adverse impact on mental health professionals — in that it contributes to their marginalisation and to professional isolation and alienation.22 [There are] difficulties inherent in having different funding systems for psychiatric services and general health services in Australia. Such differentiation results in alienation of psychiatry from the mainstream of medicine and medical specialities, and contributes further to alienation of the mentally ill from the community at large. Consideration should be given to the appropriateness of providing adequate and equitable funding for psychiatric services, under the same Commonwealth/State arrangement as for other public health facilities.23 Nurses The comfort, health, and recovery of the patients depend, in a great measure, upon the manner in which...nurses perform their duties, and it is a great mistake to suppose that these duties are of a light or easy character, or can be performed in a routine manner. They are of an anxious and responsible nature; [need] to be carefully learned; are frequently irksome and disagreeable; and demand almost unceasing activity and vigilance.24 Nursing requires extensive training, an understanding of human development and behaviour, diagnostic skills and therapeutic techniques. Nurses often work closely with clients and their families to achieve the best possible results. The role of nurses working within the mental health sector is fundamental in nurturing and caring for individuals affected by mental illness. • When people are unable to take care of their most basic needs, [nurses] take up the slack, and encourage, model and support new behaviours.25 • I try to help people gain insight into their illness: insight into why they are here and some acceptance of it. I try to encourage people to ask questions about their treatment and to look at goals for the future, perhaps to think about independence and maybe prevention and not coming back here again.26 • I encourage people to be realistic... I [also] try to encourage them to learn what they need to do to manage their disability... I like people to reflect on the things they've done and realise that past behaviour has been inappropriate and point out the unrealistic [nature] of their behaviour and perhaps of their paranoia. The whole game is about empowering.27 Human Rights and Equal Opportunity Commission Page 175 In caring for those affected by mental illness, nurses require effective communication skills. Indeed, their particular insights can often result in more appropriate treatment options for people with mental illness. Nurses.. .perform the role of liaison, openly communicating their clinical observations, treatment plans and feelings. This is done in informal discussions, and team meetings, to gain and give feedback... A policy of frank discussion between staff members develops self-awareness in the staff and ... enhances the chances that staff will be more realistic, optimistic and creative in management style.28 Nurses believe they can also play an important role as educators — as an informal and accessible source of information for people affected by mental illness and their families. They can provide details on an individual's illness, the prescribed medication and its effects, and government and non-government community assistance programs. As the client moves towards discharge the nurse will need to assume the role of educator. Of particular importance for inpatients and their families, is education about the medical aspects of their problems... Patients can, with education, understand and give meaning to past behaviours and present difficulties. By educating clients about the medications prescribed to them, their wanted and other effects, clients can be involved in their treatment and give valuable feedback... Clients can also benefit from learning what they need to do for themselves in terms of financial assistance, accommodation, leisure and meaningful activity, and what resources exist in the community to help them.29 The working environment can have an important impact on mental health nurses' roles and the discharge of their responsibilities. The Inquiry heard that the use of a formalised medical model in mental health settings can make it difficult to foster a sense of independence in patients. At times and in some places there is a disturbing tendency to treat patients with little regard to their dignity and respect... I feel that [this] occurs because of a resurgence of the medical model which means that the doctor is in charge, the 'patient' is 'sick', and the nurses do work which arises out of doctors' work. This model is extremely problematic in the mental health setting. Firstly it concentrates control and responsibility in the role of 'Doctor'. This in turn denies the patient an opportunity to take some responsibility for their own behaviour and to explore their own solutions to the problems they experience, as they must remain in the sick role. All of this negates or makes unnecessary the varied role of the specialist mental health nurse, whose role is designed to facilitate as much independence in the client as possible.50 In addition, evidence indicated that management structures which support this traditional medical model may impede the development of wider roles for nurses. Within a hierarchically arranged structure where those professionals with the greatest power are also seen to be those with the greatest therapeutic contribution, the nurse's role can become compressed and distorted, so that 'doing to' is all that is tolerated and 'doing with' is viewed Page 176 Mental Illness Inquiry as insubordination... The result can be a custodial style of care where nurses are seen as the keepers of the keys and guardians of the cigarettes, and therapeutic relationships may be little more than a barter system of favours." The level of staffing in mental health facilities clearly affects the role of health professionals and the quality of care and treatment. Witnesses and submissions to the Inquiry stressed that as nurses are at the 'front line' of providing health services to those affected by mental illness, adequate staffing levels are fundamental in ensuring appropriate care. Concern was expressed, however, that in many health services, nurse staffing levels were inadequate. Things which stop us from being effective are poor staffing levels; staff are very busy during the day. We think that mingling with the patients is very important but this is not always possible. We are not always available to do this because of our other duties, mainly admin work.32 The Australian Nursing Federation emphasised the importance of staffing levels and the impact on quality of care of the additional administrative and ancillary functions that nurses are frequently expected to perform. In contrast to general health services, there have not, to our knowledge, been attempts to establish optimum staffing levels and skills mix in the mental health services... Staffing has therefore been a matter largely based on a rule-of-thumb and subject to cost constraint. To be blunt, the resulting skill mix is usually the least that can be got away with, without causing actual harm.33 Non-nurse ward staffing levels (for so-called 'hotel services') will vary widely in institutions. Where an independence model of care is in place, bed-making and housework will be functions carried out by patients themselves... The degree to which clerical work is performed by nursing staff is also difficult to quantify. However, in both cases, it is clear that the requirement by employers for nursing staff to provide services which are clearly not nursing activities must influence the quantity and quality of nursing care.34 Evidence to the Inquiry generally indicated that work environments which do not sufficiently recognise or value the contribution of nurses to the delivery of an effective system of mental health care, promote poor work practices and undermine standards of care. In addition, the evidence suggested that in such working environments the potential for exploitation and abuse is increased. Where the model of care is such that nurses act as therapeutic agents, successful interaction with clients will be influenced by constant interruptions to attend to telephones, serving of meals and similar tasks... Research undertaken in the general health system, for instance, demonstrates the increased risk of nurses making medication errors if they are interrupted on 'medication round' to attend to other work.35 Human Rights and Equal Opportunity Commission Page 177 Systems which employ nurses who are disempowered, poorly educated, or out of date, where systematic reflection on nursing practice is not valued, are setting the parameters which breed poor practice.36 Psychologists It was clear throughout the Inquiry that the general public has little understanding of the various roles of psychologists and is confused about the distinction between functions performed by psychologists and those performed by psychiatrists. In general, the community at large is ill-informed and confused in relation to the role played by psychologists and the responsibility for this must rest, largely, with the psychological profession, as well as the existing myths surrounding and stigma attached to 'mental illness'. Certainly, there is an overlap in the various roles of health professional groupings leading to some confusion amongst themselves, and competition amongst these groupings has, both in the past and currently, led to psychologists' skills being under-utilised and overlooked.37 The Inquiry heard that appropriately trained psychologists are equipped to contribute to the treatment of individuals with mental health problems by providing assessments of the degree and type of cognitive and functional deficits, by minimising the effects of mental illness through early intervention programs and by assisting individuals back into the community and into employment through counselling and therapy.38 Psychologists can provide three main intervention services to affected individuals and their families — assessment; therapy and counselling; and skills training.39 Described alternatively: Psychologists...contribute to mental health...at three levels: (i) Primary — a preventative role through identifying of those at risk and high risk situations; (ii) Secondary — minimising the effects of mental problems by early recognition and intervention; and (iii) Tertiary — providing rehabilitation of those affected.40 Psychological assessment can assist individuals affected by mental illness by identifying problem areas directly and indirectly associated with their illness — thus assisting development of the most effective intervention programs and maximising opportunities for reintegration into the community. Services can include neuropsychological testing; vocational testing, guidance and counselling; diagnostic assessment (intellectual, psychological and vocational); and educational testing and guidance. Therapy and counselling services which may assist people affected by mental illness and their families in dealing with the effects of the illness include Page 178 Mental Illness Inquiry personal counselling; psychotherapy; hypnotherapy; marital counselling; and family therapy. Skills training can assist by changing inappropriate patterns of behaviour; by helping individuals to approach situations differently; and by restructuring their learning patterns and teaching them more effective ways of coping. Psychological skills training services can include communication and social skills; assertiveness training; stress management; developing self esteem and motivation. Psychological interventions include programs to develop personal skills.41 The psychologist's intervention technique is distinguished by providing people affected by mental illness with new skills and strategies... The emphasis of such intervention is on the long-term change of inappropriate patterns of behaviour.42 The development of psychology as a discipline and as a profession has seen the emergence of major specialisations, including clinical psychology, neuropsychology and counselling psychology — together with a number of specialist subdisciplines. These specialist subdisciplines include health, community, industrial, organisational, educational, forensic, social and experimental psychology. While some of these are more concerned with research and others with its application their common element is the desire to gain a better understanding of the complexities of mental processes and behaviour.43 The specialisations of clinical psychology and counselling psychology are particularly relevant to the treatment of people with psychiatric disabilities. (Clinical psychology originated largely in the older psychiatric hospitals or clinics and counselling psychology emerged primarily from educational settings.)44 Practitioners of both these specialisations offer mental health services and often work closely with other mental health professionals, especially psychiatrists and psychiatric social workers, in multidisciplinary teams. Clinical psychologists are equipped to provide treatment interventions for addictive behaviours, psychosomatic illnesses, anxiety disorders including various phobias, depression, obsessive-compulsive disorders, eating disorders, post-traumatic stress disorders and clinical stress management. These lists are not exhaustive...[but only] providing examples which illustrate the potential contribution that psychologists may make in the treatment of the mentally ill... Because of their specialised understanding of human behaviour and the brain-behaviour relationship...clinical psychologists and clinical neuropsychologists are ideally equipped to provide support services to brain-impaired patients (including the dementias)and their family and carers. This support can include not only didactic contributions but also the implementation of rehabilitation programs as part of a health care team.45 Human Rights and Equal Opportunity Commission Page 179 In analysing the contribution psychologists can make in the treatment of individuals affected by mental illness, witnesses emphasised the distinction between 'psychologists' generally and 'clinical psychologists'. The training of clinical psychologists enables them to play a substantially more specialised treatment role. 'Psychologists' and 'clinical psychologists' should be distinctly defined... Clinical psychologists have distinctive skills.46 'Clinical psychologists' possess diagnostic and treatment skills on the same footing as psychiatrists, except that psychologists cannot prescribe [medication] ... Clinical psychologists can often more accurately measure function, point to origins and set about assessment and treatment with patient participation... As such, clinical psychologists should take key roles in clinical and administrative structure and policy-making.47 The Inquiry heard, however, from both psychiatrists and psychologists, that clinical psychologists are under-utilised in our mental health care system. My view is that the number of clinical psychologists working in mental health services [is insufficient]... Our best estimate is that they have about three staff per 100,000 population... We should double that... If you look overseas they are double that number.48 The Australian Psychological Society believes that financial constraints operating in both the private and public sectors have led to the under- utilisation of psychologists and other mental health professionals in the prevention, identification and recognition of mental illness, and in interventions to minimise the effects of mental illness, as well as assistance in the rehabilitation of mentally ill persons... The basic rights of mentally ill people to proper care, treatment and rehabilitation are not being met. Resource constraints and structural and cultural barriers exist which inhibit the provision of vital services.49 But the number of psychologists available in the mental health system is only one of several problems. Evidence to the Inquiry highlighted the fact that the role and accessibility of psychologists in the treatment of people with mental illness is seriously limited by distinctions in the health insurance system. Witnesses agreed that psychologists generally charge between $80 and $120 an hour and psychiatrists generally charge an average of $150 an hour for consultations. But rebates under Medicare are provided only for psychiatrists' fees. Services provided by psychologists and other qualified practitioners who are not doctors (such as marriage guidance counsellors and family therapists) receive no rebates from Medicare and few rebates from private funds. Services by clinical psychologists and clinical neuropsychologists are not rebatable through Medicare. Therefore access to these services is confined to those with top of the range private health cover or to those receiving hospital treatment.50 Page 180 Mental Illness Inquiry There is limited access to psychological treatment through the public health system. Access to privately practicing clinical psychologists is restricted by cost, the only financial support coming through private health insurance. This is usually beyond the means of those on sickness benefits or invalid pensions. There is no Medicare cover for psychologists, as there is for psychiatrists and other doctors.51 Given consultation costs, the distinctions in Medicare rebates and the costs associated with 'full cover' private health insurance, the majority of individuals affected by mental illness (many of whom are poor)52 have extremely restricted access to psychological services. This [distinction].. .renders psychological services from private practitioners largely unavailable to both the general public and the disabled... The growing health costs in Australia and the increase in mental illness will be exacerbated unless there is full utilisation of available resources. 53 Most mentally ill people, whatever their needs or wishes, do not have access to clinical psychologists or other psychologists. In order to give them their right to proper care, they need this access. There needs to be some form of financial support for the mentally ill to obtain psychological treatment. Where this is the appropriate treatment, costs should be covered similarly to Medicare coverage of psychiatric care. Access to appropriate care is both a human right, and ultimately a social benefit in terms of reduced disability and improved capacity to cope for those suffering mental illness.54 It is clear from evidence presented to the Inquiry that the restriction of access to psychologists results in important treatment options being denied to many individuals affected by mental illness. Perhaps even more importantly, preventive counselling and effective rehabilitation opportunities are being squandered. We are constantly placed in a position where we have people who want to come, or continue coming to us for therapy, but can't afford to do so... The fact is that many highly qualified professionals, such as solicitors and general ractitioners are faced with a dilemma when needing to refer a client for psychological assistance or counselling. Under the present system, unless the client is wealthy...many feel obliged to refer to a psychiatrist for counselling, even where a psychologist may be more appropriate... The net result of this is twofold. First of all, an unnecessarily heavy burden on the taxpayer and limited government resources — given that psychologists properly charge less than psychiatrists. And secondly, and more important, many individuals who need counselling and assistance for depression and other mental health problems are denied appropriate treatment or any treatment at all.55 Not everybody suffering from an emotional disorder or psychiatric disorder needs to see a psychiatrist. A good psychologist can, in some cases, more appropriately deal with the problem. But the people who are calling out for help haven't got the funds to pay for a private psychologist. I think it would be reasonable to ask that psychologists were able to bulk bill or be part of the health care insurance system just as psychiatrists are... People have to go to somebody who can bulk bill because they just can't afford to pay privately.56 Human Rights and Equal Opportunity Commission Page 181 The inequities inherent in such a system clearly impact most heavily on many of those already most disadvantaged in our community. There is an anomaly that patients, particularly in public hospitals, are often provided with clinical psychological and clinical neuropsychological expertise but that this freedom of access does not persist into the community... It often happens that because psychological services are not readily available, disabled people are forced to seek alternative practitioners who are not adequately trained in that discipline thereby making treatment less effective and often inappropriate. In addition, these services are often more costly therefore putting a greater burden on the public health system.57 This restriction of access may mean that available treatment options are inappropriate, or lead to increased health care costs to the community — or both. Research to date indicates...that the appropriate use of psychological services as an integral part of a health care system results in reduced expenditures for unnecessary and, at times, inappropriate hospital and medical services, thereby significantly reducing health costs.58 Such a system is not only incompatible with human rights principles — it is economically unsound. General Practitioners General practitioners play a critical role in the treatment of mental illness — because individuals affected by mental illness often consult them as their first point of contact with the health system.59 When we are dealing with patients with depression, sometimes it is really obvious what the problem is... They will walk in...and burst into tears... Sometimes, however, people will come in with a more physical type problem which they are quite happy to tell you about, and then when the consultation is about to finish, it will all come out... I find that a lot of times people actually present with numerous physical symptoms...but you have a gut feeling that you are dealing with someone who is depressed.60 General practitioners play a critical role as 'gate keepers' to specialist health services and treatment options. There are certain situations where I would feel that I could not handle a patient... And I would feel that I am out of my depth and it would be detrimental to the patient for me to continue to care for them. In these instances I would need to enlist the help of a mental health team.61 While evidence presented to the Inquiry emphasised the need for closer links between GPs and mental health professionals working in the community,62 there is no doubt that general practitioners could and should play a more direct and effective role in the treatment of many people affected by mental illness. Page 182 Mental Illness Inquiry This is largely a matter of appropriate education and continuing training in mental health — issues which are addressed in detail below. Other Health Professionals Occupational therapists and social workers employed in the mental health field fulfil specific and important roles in the treatment of individuals affected by mental illness. As with other health professionals, however, the movement to multidisciplinary, community-based treatment services has modified the traditional functions these professionals perform. The clinical staff of a community mental health centre consists of nurses, social workers, counsellors, occupational therapists and psychologists, as well as psychiatrists. But, whereas in a hospital ward the doctor is the primary therapist and requests other disciplines to help as necessary, in a community centre many of the patients will be 'case-managed' by one of the other disciplines and the psychiatrist is a consultant to that case manager.63 As more and more people with serious mental illness live in the community, the need for services provided by allied health professionals is growing. It is the...social workers and occupational therapists who are best prepared to meet the needs of mentally ill people as people.64 With the movement to community-based treatment, the roles of these allied health professionals have expanded. Some now take leadership roles in multidisciplinary mental health services and act as carers, organisers and educators. The nature of social work has changed dramatically, the skills of social workers have been extended as their duties and responsibilities have increased.65 Evidence to the Inquiry indicated that individuals affected by mental illness generally supported multidisciplinary, community-based treatment. There was universal support for more staff and funding to community mental health services... Most people made positive comments about extended hours and crisis teams, saying the staffing tended to be more stable and they usually responded when they were needed... Among positive comments was the view that mental health team workers spent more time with people, giving more information and support beyond medication only. They were also thought to be less threatening.66 The Inquiry heard, however, that benefits associated with the transfer to community-based treatment are jeopardised if appropriate levels of funding are not forthcoming. The Association of Mental Health Social Workers stated that: The policy commitment to deinstitutionalisation has.. .resulted.. .in increasing numbers of people living in the community who require treatment from community-based services. However members of our association are consistently concerned regarding the resource problems in Human Rights and Equal Opportunity Commission Page 183 Mental Health Services... A large proportion of funding...remains tied up in inpatient services, whilst community based services are inadequate... This is incongruent with the large numbers of people who attend community-based services...in comparison... [to] people who are admitted to psychiatric hospitals annually.67 Another important issue canvassed in evidence was the need to ensure that community-based professionals are appropriately registered. The Australian Association of Occupational Therapists expressed the view that the registration process is essential in ensuring quality of care and treatment: Without registration, any unscrupulous individual may hold out to be an occupational therapist and practice occupational therapy. Removal of registration will result in the consumer having to judge the therapist's competence to practice. By definition, in time of need the client is in a crisis situation and is not necessarily able to make an informed and dispassionate assessment of the practitioner or the treatment. In the past, statutory regulation of health professionals tacitly recognised this imbalance of power in the practitioner-client relationship and, by registration, sought to provide to the client a reassurance of quality and professionalism. Functioning as an efficient and effective channel for minor and major complaints, the Registration Boards provide a low or zero-cost means of achieving resolution (as opposed to costly private legal action)... [The Association] is afraid that removing the legislative regulation of occupational therapists will create a major barrier to access to safe health services for the community.68 Professional Training and Education People with serious mental illness have very specialised needs and these can only be provided by those who are professionally trained and highly skilled.69 At present, practising psychiatrists are likely to spend 40 years in practice yet are not required to participate in any continuing education that would keep them abreast of new developments.70 The training and education of mental health professionals determines, to a large extent, the quality of care afforded Australians affected by mental illness. A mental health workforce comprising well trained individuals who regularly update their knowledge and skills through continuing education programs would provide a solid foundation for the delivery of appropriate medical and support services. Evidence to the Inquiry indicated, however, that the education and training needs of many mental health professionals (and many health professionals routinely called upon to assist the mentally ill — particularly general practitioners) are not adequately met. Consequently, mental health services for Australians with a psychiatric disability are often sub-standard. The training of community mental health professionals is seriously deficient. There is no agreed Australian code of practice, no text book of community mental health practice, and throughout Australia there are only two small graduate courses teaching the necessary skills (with 20 Page 184 Mental Illness Inquiry graduates a year they cannot hope to remedy the educational deficits of 3,000 community mental health workers). It is not surprising that morale among staff and their managers is frequently very low. Continuing education for hospital staff is only just beginning.71 Access to Courses To meet individual needs and achieve equity of access, a full range of educational offerings should be provided through a variety of programs and modes.72 Inadequate access to education and training programs means that many mental health professionals are denied the opportunity to adequately establish and subsequently broaden their skills. At one level the problem is attitudinal (for example, with respect to the necessity for adequate training for general practitioners). More tangible and equally significant problems include the costs associated with training and education programs, the timing of courses and their impact upon occupational demands, the lack of back-up staff to 'cover' for staff wishing to attend training, the limited number of 'places' available for those wishing to undertake courses and the costs — in terms of travel, time and money — particularly for rural workers. Providing inservice training and continuing education for staff can depend upon the distance staff need to travel to obtain training; the availability of vehicles and resources to get to training venues; the numbers and locations of tertiary institutions; and the availability of those skilled to teach.73 Evidence presented to the Inquiry indicated that the priorities of their employers and the demands of their jobs frequently prevent mental health workers attending continuing education programs. Employers...discussed the shortages of staff...and whilst they appreciated the needs for staff inservice training and continuing education, they also stipulated that releasing staff was a problem... They proposed that one or two-hour sessions conducted on site and at lunch time or cross-shift [were] more convenient. Staff stated that the advantages of attending longer courses (five to ten days) were that they were able to obtain more intensive skills training; that valuable contact was made with other workers, thereby widening networks; and 'time out' from busy work commitments was appreciated, enabling a concentration on educational input, and a new enthusiasm when they returned to their work area.74 Many individuals working in mental health services emphasised the importance of support from their employers to enable them to undertake appropriate education and training.75 However, a number of employers and service providers, while recognising the value of continuing education and training, emphasised the financial and administrative difficulties in providing that support. The creation of a work environment which values the importance of Human Rights and Equal Opportunity Commission Page 185 continuing education and training was generally accepted as an essential step in achieving adequate standards of service delivery.76 Professionals working in rural and isolated areas find it particularly difficult to participate in education and training courses. The training program in Western Australia does not extend beyond the metropolitan area. There is a need for accredited, funded training posts in rural regions.77 This absence of education and training opportunities and associated interaction with colleagues constitutes an important contributing factor to high staff turnover in isolated areas in all States and the Northern Territory. It is an established goal of the Department to attract and retain sufficient numbers of adequately trained and experienced staff, and to establish staff development and training policies to provide opportunities for professional development. Substantial problems occur in recruitment and retention of mental health professionals, particularly psychiatrists, outside of the Brisbane metropolitan area.78 Evidence clearly indicated that the development of training opportunities, along with other benefits, would assist in redressing the maldistribution of psychiatric facilities and psychiatrists across Australia — thereby facilitating better access to mental health services for our increasingly beleaguered rural population.79 Inducements to encourage trainee and qualified psychiatrists and appropriate support personnel to work in such disadvantaged areas need to be developed. Such inducements should include financial incentives as well as the provision of appropriate facilities, availability of other professionals and continuing medical education opportunities... The Royal Australian and New Zealand College of Psychiatrists has established a continuing medical education committee which is currently involved in looking at ways of improving access of its geographically isolated Fellows to continuing medical education activities.80 In addition to expanding formal training programs, dissemination of appropriate information through other channels was also considered important in ensuring that isolated professionals have access to up-to-date information. Written materials, simple guideline documents on how to deliver services, audiotapes and videotapes were...seen as invaluable, especially for those who do not have access to training.81 Number and Type of Courses Available While professional colleges, associations and institutes, universities and governments are all involved in the provision of training, evidence to the Page 186 Mental Illness Inquiry Inquiry demonstrated that both the number and range of courses available to mental health professionals is inadequate.82 Particular needs include the expansion of inservice training courses and workshops; continuing education programs conducted by both tertiary institutions and professional bodies; postgraduate courses in mental health; educational packages by way of external studies; and more comprehensive on-the-job training. Experts as well as carers emphasised the need for intensive training in specialised fields such as rehabilitation, family intervention, residential care, crisis intervention and management.83 Expert evidence presented in our two most populous States also highlighted the critical lack of education and training opportunities for professionals in the important areas of child and adolescent and geriatric psychiatry. There is a considerable dearth of professionals trained to work with children and adolescents. In many of the areas where under-servicing is the biggest problem, the staff are either totally untrained in mental health work or if they have some background in mental health work, they've had no specific training in child and adolescent work. The gap between staff and services and particularly trained staff and services and the needs of the clients is most acute in these areas because many of these areas are hot spots of mental health problems... I can say for NSW that if by some miracle funding were made available to provide even just a half of the services that we need, we simply would not at the moment be able to staff those services with qualified professionals. If the rights to treatment for children and adolescents with mental health problems are to be met...[then there is an] urgent need for the training of professionals.84 The Honorary Secretary of RANZCP also acknowledged the results of this lack of specialist training. Both child and geriatric psychiatry are still understaffed; resulting in moves by the Royal Australian and New Zealand College of Psychiatrists to expand training facilities and establish special interest groups in these areas.85 The Impact of Deinstitutionalisation and Associated Issues With the process of deinstitutionalisation and the development of community- based services, many individuals working both in institutions and the community requested intensive education and training in community-based service delivery skills.86 Comprehensive community mental health services require the development of specialised skills, such as case management. An integrated approach to educating and preparing staff to work in the community- based environment is therefore essential. Human Rights and Equal Opportunity Commission Page 187 In the climate of deinstitutionalisation it is very important the issues of attempting to live in the community with chronic psychiatric disorder are addressed in a training program. This will mean greater flexibility in training posts and also within services or regions.87 This change in educational approach needs to be reflected in both formal undergraduate and graduate programs and incorporated into continuing education courses. In particular, practising professionals currently employed in institutional facilities need to be trained in the skills associated with delivery of community-based services. The critical need in community mental health today, and this will become even more acute when additional staff currently working on psychiatric hospital inpatient units are transferred to work in the community, is for high level training and supervision.88 Practising clinicians needed to adopt a new...approach to the way in which they were working... In particular, staff who had worked in state psychiatric institutions for several years needed to be educated about the development of community-based services and how institutions should be integrating and linking their services with the local community... In addition, community-based staff needed to accept the important role that institutions and hospitals played, and to determine ways in which to work with these services.89 Professionals in positions of seniority who were moving into community-based services indicated the need for training in a range of leadership skills — such as conflict resolution, team building, team management, computerisation, priority setting, and resource budgeting. Staff already employed in community- based services emphasised that time must be allocated for initial inservice training, team building and general skill acquisition for new employees. New staff [should] have time to build up their caseload over a two to three week period. A major problem identified in many services was that new staff were usually 'thrown' into their job on the first day with no time being allowed for induction and orientation to [the] service, for getting to know the team, or the local environment in which staff would be working. The long-term problems that this creates are enormous as staff try to cope with large caseloads whilst obtaining basic information that they need to do their work.90 Evidence to the Inquiry also indicated that the emphasis on development of multidisciplinary teamwork should be more adequately reflected in undergraduate courses than is presently the case. Students rarely learn to realistically view the multidisciplinary team as a functioning critical mechanism for service.91 Multidisciplinary teams employ people from a variety of professional backgrounds, including nursing, social work, psychiatry, occupational therapy, psychology and other fields. These individuals have a range of qualifications Page 188 Mental Illness Inquiry and special skills in addition to a basic set of core skills. If all disciplines are to share tasks in community-based service delivery and work towards the goal of providing quality care for the seriously mentally ill, students should have greater opportunities to work directly with other students in related disciplines. Consumer Concerns The evidence from individuals affected by mental illness and their families indicated that many consumers had experienced insensitive and even callous treatment from mental health professionals.92 Too often we have seen a breakdown of care due to lack of understanding by professional staff. A system of care is only as good as its operators!93 Some witnesses suggested that consumers should participate in the development of training courses for mental health professionals and that programs should highlight what mental illness means to the individual, what it is like to be admitted to hospital and what individuals need from professionals when they are patients in hospitals. There is a definite barrier between staff and patients in psychiatric hospitals which is a barrier of prejudice and fear and not of therapy... There is a real need for change in the ways that clinical staff in the psychiatric system are selected and trained... During their training, staff could benefit from a focus on the development of empathy. We suggest that this could be done in the following ways: a) guided exercises which help the students to imaginatively experience mental illness; b) contact with psychiatric patients who are not in the acute stages of their illnesses and who are able to articulate their experience of mental illness. This should occur in informal settings to encourage the exchange of experience and insights; c) emphasis on the history and sociology of mental health care; d) exposure to a variety of schools of thought about the therapy of mental illness; e) personal assistance from a 'mentor' or therapist to enable staff to deal with their own emotional and psychological issues as they arise, especially those which arise from their work.94 It was also suggested that mental health professionals need to work more closely with family members to appreciate their needs and to explain aspects of each individual's illness and treatment. Training programs should also encourage trainee psychiatrists in their roles with families and the community. They should be aware of the stigma of psychiatry, the need for patient rights, and so be constantly aware of their own role in addressing these issues, and as appropriate encouraged to attend community groups etc.95 Human Rights and Equal Opportunity Commission Page 189 In addition to these general themes, the Inquiry heard more specific evidence concerning the education and training needs of psychiatrists, general practitioners, nurses, social workers, psychologists and occupational therapists. Psychiatrists Perhaps one of the most important functions.. .is to develop and maintain postgraduate training programs in psychiatry and continuing education programs. With the progression of knowledge, psychiatric assessment and treatment has become increasingly complex and the training necessary for a skilled psychiatrist is considerable... The adequacy of psychiatric treatment will be closely related to the adequacy of the training of...psychiatrists.96 Evidence presented to the Inquiry frequently emphasised the importance of continuing education programs in maintaining high standards of psychiatric care. However, a number of witnesses underlined the shortcomings of the existing system: The first remedy invoked is usually that of Continuing Medical Education (CME). It is honourable, very helpful for those who make use of it, and not particularly expensive, although the College of Physicians might believe otherwise. The central problem is well known to those who contribute to it. One meets the same eager faces repetitively, but those most in need of education rarely present themselves. There are also the ineducable: those who know all the answers or who are unaware that there are any questions. New knowledge arises, and one is inclined to forget that already acquired: CME is a necessity for us all.97 Some witnesses suggested that re-registration of psychiatrists (and other mental health professionals) should be conditional on undertaking and gaining accreditation for continuing education programs. Clearly there is a particular need for psychiatric training in a variety of specialised fields — generally the 'difficult' areas of mental health where the need for adequate services is particularly important. There are few training posts in areas of need. For example it is often difficult to fill posts in psychogeriatrics. There are no posts per se in rehabilitation, no designated forensic training posts, no posts with Aboriginal Medical Services, no post with an Alcohol and Drug Authority and only limited contacts with low socioeconomic areas. Without experience in these areas, and other similar areas, the graduating psychiatrist is at risk to remain ignorant or to feel inadequate to work within the area.98 The Honorary Secretary of RANZCP emphasised the need for specialised training and increased resources in forensic psychiatry: Forensic services in Australia are particularly in need of attention. Studies in this area demonstrate that there is a high incidence of severe mental illness among prisoners. Provision of psychiatrists and psychiatric services in Australian prisons is severely limited, and appears Page 190 Mental Illness Inquiry to be the result of a lack of adequate training resources and lack of job satisfaction for those working in these areas. Consideration must be given to the development of appropriate career structures within the prison psychiatric system, the upgrading of forensic psychiatry, provision of academic chairs, and improvement of working and living conditions within the prison system.99 The Inquiry repeatedly heard evidence concerning the loss of psychiatrists from the public sector and the depletion of resources for treatment of the chronically mentally ill. In this context, it was suggested that the career decisions psychiatrists make at the completion of their training are often determined by their initial experiences. If their first exposure to public mental health facilities is negative, trainee psychiatrists may decide at that point to pursue a career in private psychiatry. Many training experiences — especially in very busy general hospitals and in particular in the large psychiatric hospitals — can become one of service rather than training. Trainees frequently leave such a service vowing never to return. Funding such units to allow trainees to work with optimum patient umbers... would allow, I believe, a significant change in perspective.100 The absence of role models and good clinical training...may explain why many young psychiatrists do not find those with chronic mental illness an attractive group to treat... More student units are needed and a range of training sites identified particularly in community-based services.101 The six monthly rotation of trainee psychiatrists (referred to elsewhere in this report)102 was consistently criticised.103 Many witnesses felt they could not establish any real relationship with trainee psychiatrists and believed their treatment suffered as a consequence. In addition, the lack of continuity of care means that trainees simply don't have the opportunity to develop the skills gained from treating patients over an extended period. The training experience does not allow for continuity of care. It is desirable for trainees to have a broad experience and so rotate through many units, but often this is at the expense of not experiencing the long term effects of mental illness.104 The need for interpersonal skills training for psychiatrists (and other mental health professionals) was repeatedly raised in evidence to the Inquiry by people affected by mental illness.105 The staff here can be both informal and intimidating... The social workers and psychiatrists do not seem sincere. Things could be better if...there was some personal involvement from them. There is no feedback from doctors and there is no human level of relationship with them.106 Human Rights and Equal Opportunity Commission Page 191 General Practitioners [The health system] does not identify the mental health area as a special skill in preparing medical graduates for general practice. As the first point of contact by a mentally ill person is usually a GP, this omission is staggering.107 The level of understanding by general practitioners is deficient and there are a couple of recent studies to show that... There's a gap in education. We know that the major complaint from carers is that GPs are unable to give them information about diagnosis or about management... [We need] to look at education at all levels, at primary health care providers, and particularly at general practitioners.108 Evidence presented to the Inquiry clearly established that the training of general practitioners with respect to mental illness is inadequate. General practitioners are frequently the first point of contact with the medical system for people affected by mental illness. This is partly because they are generally accessible — due to the availability of Medicare benefits — but also because symptoms of mental ill health are not always obviously just that. It has been estimated that general practitioners spend 10 percent of their time dealing with patients whose primary reason for consultation is an emotional or psychiatric problem and an additional 10 percent of their time with patients with mental health problems who are actually seeking treatment for a physical illness or have concurrent physical conditions.109 We should develop better education facilities...for doctors... We should make sure GPs in particular...know how to identify [psychiatric problems] and how to make sure that [patients] are referred to psychiatric services.110 General practitioners fail to identify mental illness in a significant proportion of patients. [It's quoted] that 10 percent of people with mental health problems are seen by GPs. Well probably 20 percent are seen by GPs [but] only 10 percent are correctly diagnosed. Again it seems to me it points out the need for competent professional services.111 However, they have a profound influence over the use of other health services. They initiate referrals to specialists and allied health professionals and they can directly influence treatment options. [General practitioners] are often thought of as the 'coordinators' of health care. In this role they can ensure the best treatment for their patients through prescribed medications or referrals to medical specialists, or allied health services... However, the effectiveness of this role can be diminished by insufficient awareness of local community resources.112 General practice is seen as poorly integrated with the rest of the health system...113 Page 192 Mental Illness Inquiry Effective integration of general practitioners in our health care system is essential if their services to people with psychiatric disabilities are to be more effective. Since the Inquiry began, the Federal Government has increased efforts in conjunction with the Australian Medical Association and the Royal Australian College of General Practitioners to promote greater integration.114 With effective integration, general practitioners could play a more significant role in the management of people affected by mental illness. They currently care for large numbers of such people, many of whom have little contact with specialised mental health services. This is particularly the case in remote areas where few specialised services of any variety are available. [People with mental illness] still want to have an ordinary general practitioner and they accept that as a reasonable way of making contact with the [mental health] care system. They in fact value that because this person is not a psychiatrist, not part of the formal mental health system and I think they look towards that person as being on their side... [This presents us with the opportunity to] use general practitioners more as agents of care and support of people's mental illness.115 If general practitioners are to be used more effectively in providing mental health services, however, it is essential that they receive more comprehensive mental health education. They need to substantially improve their skills not only in diagnosis and the management of people affected by mental illness but also in developing close links with community-based mental health professionals. It just amazes me when I look at the training program for doctors in NSW how little emphasis is placed by the universities at the undergraduate level on building in core training subjects relating to psychiatry... It is my belief that there needs to be far greater input at the undergraduate level and the postgraduate level to help [GPs] develop and maintain skills that will make them far more effective practitioners in this area.116 More specific deficiencies in the training of our general practitioners are addressed in other chapters of this report.117 Nurses The effectiveness of mental health services is dependent on an adequate supply of highly trained professionals... The training of specialist nursing staff to work in the mental health area is of crucial concern. It is extremely important that governments and tertiary training institutions ensure that nurse education includes adequate basic and post basic training in psychosocial and biomedical aspects of health care.118 In recent years, the education of mental health nurses has moved away from hospital-based courses to generalist tertiary based programs. The three-year tertiary courses provide a curriculum designed to equip graduates to work in Human Rights and Equal Opportunity Commission Page 193 medical-surgical; mental health; and developmental disability settings. According to the Australian Nursing Federation: The curriculum for pre-registration nurse education is to be comprehensive in nature to enable graduates to function as beginning practitioners in a variety of health care and community settings, in order to meet society's needs.119 The Australian Nursing Federation contends that pre-registration nursing programs which are generalist [will] allow graduates to emerge sufficiently well equipped to withstand the pressures applied when they embark on a post-registration career in mental health. We believe that separate education which focusses on either the 'body' or the 'mind' encourages the socialisation of students into separate cultures. This is to the disadvantage of mental health clients.120 While this change has been welcomed by many in the mental health nursing sector, it has also caused concern. In particular, there are serious reservations regarding the transfer of mental health nursing education to a generalist tertiary program and the possible loss of specialist nursing skills. Within the psychiatric nursing field there is considerable disquiet and demoralisation because of the clear trend in marginalisation of psychiatric/mental health nursing theoretical content and clinical experience in tertiary curricula...121 In NSW the move of nursing education to the tertiary sector has seen the disappearance of hospital-based schools of nursing and the dispersion of staff who had previously worked in and developed those schools... It was the intention that a comprehensive basic curriculum would [be developed]... That was the intention...[but] many mental nurse academics in NSW are sure that this has not happened.122 Some evidence suggests that in practice the educational demands of medical- surgical nursing have been given priority over the training needs of psychiatric nursing: There are some around who would want to see psychiatric nursing in particular shoved into the postgraduate domain and others who want to see developmental disability nursing shoved right out of nursing altogether. This would give more time in the present three-year curriculum for what is believed to be medical-surgical nursing. I believe this would be a disaster.123 Many nursing faculties have at the moment too few mental health nursing academics on their staff — in some places it is under 10 percent.124 Obviously there is a need to ensure that all basic nursing education contains an appropriate level of mental health training. Education institutions must ensure that education for work in all health services includes education for mental health work. Graduates of health faculties should have achieved a level of Page 194 Mental Illness Inquiry competence which prepares them for work as beginning practitioners in health, both physical and mental.125 However, continuing education is also essential with respect to nursing techniques and treatment methods. As mental health nurses, we need to keep ourselves well educated and abreast of the changes in psychiatry and nursing. We can be active in publishing our own work, conducting research, and reading about the work of our contemporaries.126 The Australian Nursing Federation highlighted the necessity for the 'provision of appropriate, regular inservice education opportunities for all staff for the maintenance and enhancement of skills' to ensure proper standards of nursing care.127 Evidence presented to the Inquiry also established that there are significant differences in nurse education in each State and Territory — and that these differences affect the standards of treatment for individuals affected by mental illness. The differing State/Territory legislation, the differences in funding and the variety of educational opportunities for personnel mean that clients are subjected to differing standards throughout the country.128 This situation impacts both directly and indirectly on those involved. The Secretary of the Queensland Nurses Union commented upon the variation in educational requirements and standards and the impact this had on the number of nurses available. The Queensland Nurses Union does not accept that mental illness is resourced to the same standard as physical illness. Our concerns in particular go [to] the...educational preparation of mental health nurses... There is extraordinary variation across the States in terms of the ways that psychiatric nurses are currently prepared... These variations, apart from being educationally and professionally unacceptable, also have profound effects on the supply side of the mental health nursing labour market...129 Beyond addressing these difficulties, however, there is also clearly a growing need for appropriate adaptation of existing health services to more effectively deploy the talents of psychiatric nurses — particularly in rural and regional areas, where the very real and in some cases very urgent needs of many thousands of Australians living in smaller population centres need to be imaginatively and effectively addressed. Human Rights and Equal Opportunity Commission Page 195 Other Health Professionals The Inquiry heard that other health professionals working in the mental health field — psychologists, social workers, and occupational therapists — have specific training needs, including in the field of community-based service delivery. The development of community-based educational programs and the promotion of continuing education courses in these areas were seen as essential. The real challenge is to develop training programs... I mean, at the moment in NSW we have the Institute of Psychiatry...our own University [of NSW] is developing a Masters of Psychotherapy program.. .and there's the University of Wollongong and .. .a small program in Canberra. We are talking about 1000 community mental health workers, psychologists, social workers, nurses, psychiatrists, none of whom have really had a lot of training focussed on the new job we're asking them to do; it's a problem of changing roles and forgetting to re-skill them.130 One significant education and training provider is the NSW Institute of Psychiatry. The Institute is independent of any individual university or teaching institution and is the only organisation of its type in Australia and New Zealand.131 It has three broad objectives: education of doctors and allied mental health professionals; fostering research; and promotion of community education in the mental health field. While the Institute initially concentrated on the training of psychiatrists in NSW, it now conducts training programs for a range of health care professionals and consumers. In the child and family field there are courses now running to train psychiatrists, there are multidisciplinary courses for people who are working with adolescents, and there's a course for the early childhood nurse. In the cross-cultural area the Institute conducts courses for interpreters, ethnic health workers and bilingual counsellors...and a course for health professionals who work in the cross-cultural area.132 The Institute also provides courses for those working with the seriously mentally ill, leadership skills development in mental health services, the psychiatry of old age, crisis intervention and management skills and rehabilitation systems. In its community education role the Institute conducts seminars throughout NSW for both professionals and consumers. While the Institute has limited resources and is far from adequately meeting the needs outlined in this chapter, its existence means that mental health professionals in NSW have access to a greater range of formal and continuing education than their colleagues in other States. The lack of similar organisations elsewhere in Australia needs to be addressed as an initial step to improve training opportunities for all workers in the field of mental health. Page 196 Mental Illness Inquiry I think [the Institute] is a good idea, in the sense that it allows the best expertise from all sources to be drawn together in its teaching programs. Because we're not part of any one particular university or teaching institution, it gives us a degree of independence, so that we can draw on all academic resources, plus the private and public resources, as well as consumer resources. Now having said that, I think that's a strength — but it also means we are vulnerable in terms of being the only Institute in either Australia or New Zealand. We are often asked why should we have one...and so far we have been able to respond to that in such a way that we haven't been cut out altogether but certainly sometimes they see this thing as a luxury. I certainly don't see it as a luxury.133 Other Professionals Who Work with People Affected by Mental Illness Ignorance and misinformation underlie the alienation of the mentally ill from the mainstream of the community. There is a marked lack of understanding of mental illness by the population at large.134 The Inquiry heard that many professionals — including government employees, police and ambulance officers, teachers, lawyers and journalists — need training to deal with people affected by mental illness, and issues relating to them, in an appropriate manner. People with psychiatric disabilities n