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 fu