Site navigation

Change font size: SmallerLargerReload

navigation Disability Rights

MENTAL HEALTH FOR ALL: WHAT'S THE VISION?

Chris Sidoti
Human Rights Commissioner 1995-2000

National Conference on Mental Health Services, Policy and Law Reform
into the Twenty First Century
13-14 February 1997, Newcastle

 Chris Sidoti


INTRODUCTION

Good morning ladies and gentlemen. Thank you very much for inviting me to speak with you today.

Over the last four years the Human Rights and Equal Opportunity Commission (the Commission) has played a key role in raising community awareness about the human rights Australians with a mental illness. The Commission, through its public inquiry process, brought into national focus how, amongst other things, people affected by mental illness frequently faced discrimination and stigmatisation based on ignorance, fear and inaccurate stereotypes.

My predecessor, Brian Burdekin, succeeded in drawing unparalleled attention to the serious abuses of the human rights of people with mental illness. The National Inquiry into the Human Rights of People with Mental Illness reported on the extent of mental illness in our community and the urgent need for concerted government action. The recommendations in the Report have resulted in better laws, better policies and programs and better funding to meet the heeds of these Australians. It has also brought about greater community awareness. 1 am pleased to be able to claim this confidently, while also acknowledging that much remains to be done.

On my appointment as Human Rights Commissioner in 1995 1 made a commitment to continue the Commission's role in promoting the human rights of Australians who have a mental illness. The first part of this commitment was the completion and release of the Report of the Reconvened Inquiry into the Victorian mental health system The next part of my commitment is to continue to monitor the performance of Australia's obligations under international human rights treaties and instruments that seek to defend the rights of people with mental illness.

This morning 1 would like to address four issues:

INTERNATIONAL LAW

International human rights treaties play an important role in promoting and protecting the rights of. people with mental illness including through. improvement in mental health care. International instruments incorporated in Federal law stipulate that individuals affected by mental illness are entitled, without discrimination, to the same human rights as everybody else.

Our commitment as Australians to respecting the human rights of all our people is reflected in our support for international human rights standards. The Human Rights and Equal Opportunity Commission Act 1986 established the Commission and gives effect to many of these. Four of the instruments are of particular relevance to the human rights of people with a mental illness or psychiatric disability.

The International Covenant on Civil and Political Rights deals with a range of human rights including, for example, the right without discrimination to equality
before the law.

The Declaration on the Rights of Disabled Persons provides that people with disabilities have rights to respect and dignity; to enjoy a decent life, as normal
and full as possible; to assistance to enable them to become as self reliant as possible; to education, training and work; to family and social life; and to
protection from discriminatory treatment.

The International Labour Organisation ILO Convention 111 is concerned with discrimination in employment and occupation. All people have the right to equal treatment in employment and occupation without discrimination on a range of grounds including in Australia disability, whether physical, intellectual, psychiatric or mental.

Another important and relevant treaty to which Australia is a party is the International Covenant on Economic, Social and Cultural Rights. This treaty recognises rights to employment, housing, health and education. While this Covenant is not incorporated in the Human Rights and Equal Opportunity Commission Act or other Federal legislation, it is one of the sources of power on which the Disability Discrimination Act 1992 is based. That Act is an important piece of domestic antidiscrimination law that covers people with mental illness and was one result of the Commission's original inquiry into mental illness. Indeed the Act's first successfully resolved hearing concerned discrimination against a person with a mental illness.

An important international standard is the United Nations Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care. It has proved to be particularly valuable in applying human rights recognised in other instruments to people with mental illness and to situations affecting them. The Principles were adopted by the UN General Assembly in 1991 with Australia's full support.

These Principles have not been formally incorporated in Australian legislation. However, they have been endorsed in the National Mental Health Policy which sets 1998 as a target date for ensuring full compliance by Australian mental health legislation. The Commission will be monitoring this target closely. While the Principles' focus is primarily on human rights in relation to the mental health system, they also stipulate, for example 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 that discrimination on the basis of mental illness is not permitted that every person with a mental illness has the right to live and work, as far as possible, in the community that every person being treated for a mental illness must be accorded the right to recognition as a person before the law and that every person who has a mental illness or who has experienced mental illness has the right to protection from exploitation whether economic or in other forms.

In essence, the UN Principles make it clear that it is not acceptable to have lower standards for the mental health system that for the rest of the health system, whether in relation to treatment and care or resources and that it is not acceptable for people with mental illness to enjoy a lower standard of human rights than other people.

THE NATIONAL MENTAL HEALTH STRATEGY

In the early 1990s public policy towards mental illness was beginning to change. Partly in response to the establishment of the National Inquiry into Human Rights and Mental Illness. Health Ministers in April 1992 adopted the National Mental Health Strategy. The Strategy defined the directions for reform of mental health policy and services and established a framework for collaborative effort between Commonwealth, State and Territory Governments to pursue these directions over a six year period. The Commission participates in the monitoring of this Strategy through the National Mental Health Task Force.

Australia is now over half way through the Strategy. Although a lot remains to be done there has been a number of innovative and significant developments that recognise the importance of human rights as central and integral to the reform of mental health legislation and services. Some of these deve lopments include

The National Mental Health Strategy identified that consistent mental health legislation was required both to define and to protect the rights of individuals with a mental disorder and to balance those rights with community needs.

It also identified the need for progress in this area to be consistent with the United Nations Resolution on the Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care and the Australian Health Ministers' Mental Health Statement of Rights and Responsibilities. The Statement of Rights and Responsibilities adopted by the Australian Health Ministers in March 1991 aims to ensure that consumers, carers, advocates, service providers and the community are aware of their rights and responsibilities and can be confident in exercising them.

In 1994 Commonwealth, State and Territory and Governments through the whole of government responses to the National Inquiry's Report identified ways in which the rights of people with mental illness could be protected. In 1995 this new direction in government mental health policy was given impetus through national activities and actions within individual States and Territories, including legislative change. Of particular significance was the National Mental Health Legislation Project.

NATIONAL MENTAL HEALTH LEGISLATION PROJECT

This project was established to help States and Te rritories identify how they could achieve the goal of developing mental health legislation that is consistent with two key documents: the United Nations Principles and the National Statement of Rights and Responsibilities.

This project was of vital importance because of the need for urgent reform of mental health legislation in all jurisdictions. As many of you are aware, the Commission in its background paper `Mental Health Legislation and Human Rights' in December 1992 found breaches of human rights in mental health laws of all states and territories in Australia. In addition the National Inquiry's report pointed out that both the form and the substance of mental he alth legislation in most jurisdictions tended to perpetuate stigma associated with mental illness and to frustrate rather than promote human rights for people affected by mental illness.

The national legislation project commenced in 1994 and reported to the Australian Health Ministers' Advisory Council National Working Group on Mental Health Policy in 1995. The Report has been influential in providing an example of how individual States and Territories can make changes to mental health laws. The project report

As a result, action taken on the project report includes

STATE AND TERRITORY LEGISLATIVE CHANGE

The national legislation project has led to changes or proposed changes in each jurisdiction.

In New South Wales the Mental Health Act 1990 was amended in 1994 by the Mental Health (Amendment) Act 1994. A discussion paper was released in 1996 on proposals for further amendment to increase the level of consistency against UN Principles and the National Statement of Rights and Responsibilities. Consultations have taken place and the amendment Bill is currently before the Cabinet.

In Victoria the Mental Health (Amendment) Act 1995 was proclaimed on the first of July 1996. The amendments improve consistency with the United Nations Principles and reflect the shift in emphasis of service delivery to mainstreamed agencies and services provided in the community.

The Queensland Mental Health Act 1974 has undergone an extensive review resulting in the drafting of a Bill scheduled to be introduced to Parliament by the end of 1997.

In South Australia the Mental Health Act 1993 was proclaimed in July 1995. Major steps required to address principal issues identified in the national review of mental health legislation have been completed. Provision for cross border transfer of those detained or under orders is incorporated in the legislation.

Western Australia has reviewed the Mental Health Act 1962 and prepared the Mental Health Amendment Bill 1996. The Bill recognises the fundamental issue of respect for human rights and provides for agreements to be made between states regarding interstate transfers. The Bill was passed in November 1996 and proclamation of the Act is due in September this year.

In Tasmania drafting of the Mental Health Bill is now complete following consultations. The Bill seeks to update the Mental Health Act 1963 and will facilitate cross border transfers. The Bill is due to be proclaimed mid year.

The Mental Health (Treatment and Care) Act 1994 of the Australian Capital Territory commenced in February 1995. The Act is unique in that it incorporates provisions that relate not only to those with mental illness but also intellectual disability, dementia, acquired brain damage and drug and alcohol abuse.

In the Northern Territory the Mental Health Bill which updates the Mental Health Act 1980 was reviewed in light of the model mental health legislation developed through the National Mental Health project in March 1995. As a result of the review the Bill has been redrafted and is due to be tabled in the Territory Assembly in the first half of this year.

Clearly there have been some significant developments in mental health legislation over the past four years. However reforms to mental health legislation are not yet complete or consistent. In NSW , Queensland, Western Australia and the Northern Territory amendment Bills are still caught up in the parliamentary processes.

RIGHTS ANALYSIS INSTRUMENT

While Health Ministers agreed under the National Mental Health Strategy to enact legislation consistent with the UN Principles, no jurisdiction has complied fully with this agreement This has been due, in part, to the absence of a comprehensive tool to measure legislation against the compliance required.

In June 1996 the Australian Health Ministers Advisory Council commissioned the Human Rights Branch of the Attorney General's Department to develop a Rights Analysis Instrument. The Commission has assisted in its development.

The Instrument will be used mainly to assess the compliance of existing legislation and proposed new legislation or amendments. It could also be used for the purpose of annual reporting on legislative reform in the National Mental Health Report.

The Rights Analysis Instrument can make an effective contribution to the drafting of amendments to mental health legislation as well as in the evaluation of reforms to determine the degree of responsiveness to the UN Principles. There is also a role for the Instrument in assisting reporting obligations under the National Mental Health Strategy.

1 have been concerned. however, about who will be responsible for applying the instrument to the law in each jurisdiction. One proposal is for a team of up to five people in each State and Territory consisting of a consumer representative, a human rights expert, a lawyer familiar with mental health legislation, a service provider expert and an advocate or carer representative.

This certainly has merit. Alternatively or in addition the Commission could act as a coordinating body in the administration of the Instrument. Discussions are still continuing. In addition the report on the National Mental Health Legislation Project has been used to varying degrees to inform legislative reform in the States and Territories.

From legislative change to change in fact consistency in mental health legislation is an important part of the reform process to ensure that people with mental disorders, irrespective of where they live in Australia, have similar rights and expectations about the way they will be treated. The rights analysis instrument will assist that.

It is also important however to make absolutely clear that new mental health. laws, based upon human rights principles, will be of limited effect unless accompanied by administrative change, by education about those laws and by resources to enable compliance with those laws without lowering standards of treatment and care. Governments have an obligation to ensure these requirements so that reform legislation has the intended effect of promoting and protecting the rights of people with a mental illness.

It is also important to monitor and assess the States and Territories progress towards ensuring that mental health legislation meets national objectives using operational criteria such as the Rights Analysis Instrument.

COMMONWEALTH LEADERSHIP

Without doubt the shift towards rights based approach to mental health legislation could not have occurred without Commonwealth leadership and concerted government action.

Carers, non government organisations and mental health professionals consistently work hard on the coalface battling with the day to day realities of mental illness and then squeeze in the consultations, the lobbying and the submissions to make changes to the mental health system possible. Sometimes they achieve change but other times they hear the rhetoric without action. The reality is that political will often triggered by fierce public pressure, is required for governments to commit the resources necessary for better laws, policies and programs.

Another factor influencing Commonwealth leadership is its international human rights obligations. When the Commonwealth Government becomes a party to international human rights instruments it makes a commitment to comply. with the rights set out under those instruments. As you are aware the Commonwealth Government is party to a number of international instruments that play an important role in promoting and protecting the rights of people with mental illness.

The former Federal Government made a clear statement of support for the Mental Illness Inquiry's findings and recommendations. Initiatives included $200 million over 4 years for services either directly targeted at, or providing substantial benefit to, people affected by mental illness. It joined State and Territory governments in developing the National Mental Health Strategy. These initiatives have made a difference for the better.

They happened because the Commonwealth accepted the leadership role in protecting the rights of the mentally ill. I am confident that the Coalition government wants this commitment to continue. I hope it will support continued federal leadership. Continuing federal and state cooperation under Commonwealth leadership is essential to build upon the gains that have been made to date and the challenges that face the future.

Now is the time to plan for the future directions of our national mental health strategy after 1998 when the present Strategy ends. This conference is the ideal forum to discuss ideas and future action.

What is important is that we do not allow mental health to fall off the political agenda. The gains that have been made may be eroded if Federal, State and Territory Governments cease to work together along with consumers, carers, non government organisations and mental health professionals.

For that reason I fully support the Conference's aim to establish an association of mental health review bodies to meet annually to discuss developments in mental health law, services and policy. This association could be significant in participating in shaping the future directions of our national mental health strategy. And 1 am sure that this topic will be the subject of intense discussion amongst participants over the next three days.

BEYOND 1998 - CONCLUSION

The burning issue that needs to be addressed is what lies beyond 1998 in terms of a national mental health strategy.

Since the commencement of the Strategy there has been a significant increase in national spending on mental health, there has been structural reform, research, community awareness programs and legislative reform. These initiatives have made a difference for the better but unfortunately some of our mentally ill and their carers have not yet felt the full benefit of this change and more time is required to achieve this.

In particular, many people with mental illness are still homeless and many more still live in sub standard accommodation. Many cannot obtain the community support services they need. Many do not receive the medical care to which they are entitled. Resources for institutional care have been reduced but community based care cannot meet the consequent need.

Historically services for people with mental illness have long been neglected by our governments. Six years is by no means long enough time to rectify decades of entrenched anachronistic attitudes, laws and policies. There has been, however, a significant start.

The last four and a half years of national mental health policy have planted the seeds for change.

Reform must continue. It must be nurtured by Commonwealth, State and Territory Governments if it is to meet its objective of ensuring that appropriate services are readily available and accessible to all Australians with mental health problems and disorders.

The Commonwealth Government must build upon the significant achievements that it and others have made and remain the driving force for future directions beyond 1998 in consultation with State and Territory Governments, consumers, carers, mental health professional and non government organisations.

This continuity will ensure that a national focus and consistency remain, that the reforms already initiated are firmly established and that further reforms will ensure full protection for the human rights of Australians with mental illness wherever they live.

The Commonwealth Government must continue to produce the vision and the goals. It must continue to set national standards and monitor their implementation. Ultimately it is responsible for Australia's performance of its human rights obligations.

It is particularly important for all governments to maintain a strong, clear and honest dialogue with consumers, carers, advocates and service providers over the future of our mental health system. However dialogue without action is useless.

The National Mental Health Strategy has 16 months to run and it is now time to plan what will follow it. The Commonwealth Government must start to communicate its ideas for the future of the Strategy.

I strongly recommend that the mental health sector begin develop its priorities for the duration of the next part of the Strategy and to take up those views with Commonwealth, State and Territory Governments. Governments will then remain aware of the continuing public and political interest in mental health issues.

Much work remains to be done in the promotion and protection of the human rights of the mentally ill. But significant progress has been made over the past four years.

The challenge now is to ensure that mental health remains on the political agenda. What gains have been made may be eroded and what remains to be done may be forgotten if Federal, State and Territory Governments lose interest or if they think the community has lost interest.

I can assure you that the Human Rights and Equal Opportunity Commission will continue to support you in your work to promote and protect the rights of people with a mental illness.

Thank you.