Mental health and human rights: the state of play in 2005

Comprehensive Area Psychiatrists Special Interest Group
Rozelle Hospital
Dr Sev Ozdowski OAM
Human Rights Commissioner and Acting Disability Discrimination Commissioner

May 17 2005

Sev Ozdowski

 

Introduction

I would like to acknowledge the traditional owners of the land on which we meet, the Eora People, and pay my respects to their elders both past and present.

Recognising 's indigenous peoples and their prior ownership of this land is an important element in recognising our diversity as a nation.

Of course, there are also other important elements to that diversity.

As you know, and as seems to be increasingly widely recognised in the community, 20 per cent or more of us may be affected directly by a mental health problem at some time, and many more as family members, carers, friends and workmates.

I will be talking more in a moment about recent work I have been in involved in with the Mental Health Council of Australia, which is the reason after all why I was invited today.

The issues affect millions. These issues have not achieved nearly the public and political profile they deserve.

When I accepted Alan Rosen's invitation to speak today I hoped that we would have publicly available the report of those consultations. Unfortunately that is not yet the case. Let me hasten to say that the later than planned date for release of this report has not been due to any lack of effort from the people at MHCA or BMRI. It has rather been because the amount of input we received, and which we need to do justice to, was simply far greater than expected.

I will come back to these consultations.

Two immigration cases

But I want to start by reflecting on two cases which are already being widely publicly discussed, and which might seem to raise highly unusual circumstances. They concerned the exercise of the power of 's government in relation to migration - , or rather what purported to be the exercise of that power.

I mean, the case of Cornelia Rau, who despite being an Australian permanent resident was eventually found by her family in immigration detention; and that of Vivian Alvarez, who despite being an Australian citizen was deported to the Philippines - leaving her child here waiting to be collected by his mother from child care with no explanation of what had happened to his mother and ultimately being placed in foster care.

I begin with these two cases, rather than with the hundreds or thousands of stories of inadequate access to services and care and support around , because I think they show dramatically just how poorly human rights are guaranteed by 's legal and political institutions.

Unusual issues?

These issues should concern every one of us.

I do not mean only those 25 per cent of us who were born overseas, and may still have foreign-sounding accents like mine, and perhaps also a foreign passport as well, even after decades as an Australian resident and citizen.

But let's start with that 25%, many of whom may now be wondering what identity papers or dogtags or tattoo we should be considering having on us at all times, in case we have a car accident or a mental health episode and get swept up by the detention and deportation system.

20 per cent or more of Australians may have some mental health problem. At least 25 per cent of those can be expected to have been born overseas.

Apply those figures to a population of 20 million, and I get a number of one million Australians.

More than a million is more likely, if we consider the effects on mental health of

  • social isolation that comes from language difficulties particularly for older people;
  • the experiences that people are fleeing from when they come to us as refugees;
  • the process of detention itself for asylum seekers.

So - even if we restrict our consideration further, to those who experience a more serious mental health episode - it is really not at all extraordinary to be an Australian citizen who has both a mental health issue and some foreign element to their identity.

The detention of Cornelia Rau although wrong appears to have occurred through the operation of our laws providing for mandatory detention.

Although some details remain unclear, the deportation of Vivian Alvarez appears simply unlawful.

There is no power for the Australian government to exile Australian citizens. A full inquiry is needed to uncover how this could happen - and why nothing was done to undo the mistake once government officials new what had happened.

Are human rights adequately protected?

It is often claimed that does not need a Bill of Rights because the common law and a democratic Parliament are sufficient protection - even though every other democratic common law country does have a Bill of Rights.

I have to say that the response of the Australian Government in Parliament and in public to date on both these matters gives little cause to believe that parliamentary accountability and ministerial responsibility provide sufficient safeguard for human rights.

In these matters, compliance with human rights involves only the relatively simple requirement that government avoid exercising its powers unlawfully or arbitrarily.

Even this however requires more than good intentions. It requires that legal and administrative systems are in place to ensure accountability.

Mandatory detention : the CIDI report

Last week I called on the federal Government to urgently review 's system of mandatory immigration detention, in response to these revelations of wrongful detention and deportation of Australian citizens and also in response to ongoing concerns over the mental health of detainees.

The recent revelations concerning the mistreatment of adult Australians reinforce the findings that were made one year ago in the Commission's report on children in immigration detention.

The report detailed numerous and repeated breaches of the human rights of children in our immigration detention centres.

The report found that 's mandatory detention system breaches human rights because it fails to ensure that detention is the last resort and for a short period only, and fails to make the best interests of the child a primary consideration. It has also drawn attention to the connection between prolonged detention and mental health issues.

The Inquiry found that DIMIA's failure to implement repeated recommendations by mental health professionals to remove certain children from detention with their parents, was cruel, inhumane and degrading treatment of those children in detention.

There are still 69 children behind razor wire (including in ). Some of those children were in detention when the report was tabled a year ago.

It is undisputed that the detention environment is either the cause of mental health issues for long term detainees and/or exacerbates existing conditions - the recent Federal Court decisions for the two Baxter detainees reinforce this assertion.

A case study

Let me briefly remind you about one case study from the report . I refer now to the case of a 13 year old child who had been seriously mentally ill since May 2002. This boy had regularly self-harmed.

In February 2003 a psychiatrist examining the boy wrote the following:

"When I asked if there was anything I could do to help him, he told me that I could bring a razor or knife so that he could cut himself more effectively than with the plastic knives that are available."

There had been approximately 20 recommendations from mental health professionals saying that he should be released from detention with his family.

Most detainees are eventually found to be refugees and then need to be integrated into the community anyway.

When finally released into the Adelaide community, (after 3 years detention, and 2 years after mental illness diagnosis) as refugees, following a Refugee Review Tribunal finding, all members of the family were severely mentally traumatized; prescribed heavy, daily medication, too ill to work and requiring extensive community support and assistance.

In other words, we locked them up, we traumatised them and now as they join the Australian family, we are going to have to pay a price for that treatment.

CIDI findings: backward looking?

When responding to A last resort? one year ago, the government rejected the major findings and recommendations and dismissed it as 'backward looking'.

The facts revealed so far in the Cornelia Rau and Vivian Alvarez cases suggest that our findings were far from backward looking - rather they were tragically prophetic.

When there is no provision for an independent individual assessment of each and every person, and no requirement for judicial oversight, the risk of serious mistakes becomes unacceptably high.

 It actually seems that in contemporary there are fewer safeguards in the way of getting a mentally ill Australian detained or deported than there are before a person can be hospitalised involuntarily for treatment.

Mental health and human rights

In the 1970s of course most discussion of human rights in relation to mental health issues was concerned with preventing unjustified or unaccountable use of coercion.

Civil rights advocates were concerned to have safeguards put in place to ensure accountability before people could be locked away or subjected to compulsory treatment, and to prevent abuses in institutional environments.

At times the debates were presented as being simply between people who wanted to keep mentally ill people out of hospital and people who wanted to keep them in: lawyers talking about the rights of people with a mental illness versus doctors talking about the best interests of mentally ill people.

By the 1990s however there seemed to be a fairly broad consensus that deinstitutionalisation was not a matter of respecting a "right to be mad" irrespective of the consequences, or of leaving people to "rot with their rights on".

Human rights and mental health advocates alike emphasised the right to the "highest attainable standard of physical and mental health", recognised in article 12 of the International Covenant on Economic, Social and Cultural Rights, to which has been a party since 1975.

Rights require resources

Delivering this right in practice was clearly seen as not only requiring legal safeguards and administrative accountability, but also requiring additional resources for appropriate services.

Here in NSW the Richmond Report in 1983 emphasised that deinstitutionalisation could not simply be a matter of being expelled into the community, but had to involve expansion of community based care and supports.

So what happened in practice?

HREOC inquiry findings

In 1993 the Human Rights and Equal Opportunity Commmission released the report of its National Inquiry into the Human Rights of People with a Mental Illness.

The Inquiry found that although the movement towards community care and mainstreaming of mental health services had reduced the stigma associated with psychiatric care, in general the money saved by deinstitutionalization had not been redirected into mental health and related services in the community.

Health services and other services which would enable people with a mental illness to live effectively in the community were found to be seriously under funded or in some areas just not available at all.

Crisis services were found to be inadequate.

Treatment and discharge planning was found to be in need of major improvement.

Mental health professionals and allied staff working both in institutions and the community were found to require education and training in the delivery of community based services, and needs for improved education and training were identified throughout the sector.

The Inquiry also recommended added emphasis in health budgets for prevention and for mental health research.

Governments were found to be relying increasingly on NGOs to provide services but to be treating NGOs as peripheral in the allocation of funds.

Accommodation for people with a mental illness was found to be particularly inadequate, with government housing support programs either excluding people with mental illnesses or failing to address their specific needs. The inquiry found that the absence of suitable supported accommodation was the single biggest obstacle to recovery and effective rehabilitation.

In the employment area, people affected by a mental illness were found to be disadvantaged by negative attitudes, a lack of awareness of means of accommodating employees with a psychiatric disability, and by inadequate vocational and rehabilitation services.

Families and carers were found to be badly overstretched and insufficiently supported. As well as improved crisis facilities and other community mental health services the Inquiry recommended better information for carers and greater provision for involvement in decisions.

Mental health services for children and young people were found to be seriously under developed. There were also recommendations for improvements in services for women.

The Inquiry also made recommendations on culturally appropriate services for Aboriginal and Torres Strait Islander people and people from non-English speaking backgrounds.

Specialist services for the many thousands of Australians affected by mental illness and some other form of disability were found to be almost non-existent, and services in either the mental health or disability sectors to be inadequately prepared to deal with the needs of this group, with the result that people with dual or multiple disabilities were often bounced from agency to agency without finding anyone who would assume responsibility for care or support for them.

The Inquiry found that mentally ill people detained by the criminal justice system are frequently denied effective health care and human rights protection. Procedures for detecting and treating mental illness and disorder in the Australian criminal justice system were found inadequate in all jurisdictions.

Ongoing crisis

Unfortunately, I expect that most of that sounds all too familiar to you, not as decade old history but as current affairs.

Despite a policy framework often described as world leading, and particular successes in legislative reform, in the years after the HREOC inquiry we have continued to see reports describing a situation of ongoing crisis.

Let me say here that I am aware that in using terms like crisis, or neglect, there may be a danger of being seen to blame or lower the morale of people who are working extraordinarily hard to deliver the best outcomes they can for patients, families and the community.

Nothing could be further from my intention. My purpose rather in talking about inadequate services and outcomes is to put the focus where it belongs, on governments which are still not giving enough priority to mental health issues - and on a community and political culture which allows them not to.

Public priorities

I have not seen in the last week, for example, any high profile statements from high income earners that they would prefer to have foregone some of their promised tax cut in exchange for knowing that people with serious mental health problems would receive the help they need.

Closer to home here today in Rozelle, I do not recall many statements by people in the area that they would gladly see a portion of the Health Department's lands surrounding this facility here cease to be available to them as a de facto public park, so that additional resources might be directed to mental health services and new mental health facilities.

Perhaps governments simply reflect the priorities of the people. Or maybe it is a matter of which voices get heard.

HREOC/MHCA/BMRI consultations

With this in mind, I decided last year to join with the MHCA and the Brain and Mind Research Institute (BMRI) and conduct consultations with people in the mental health sector - professionals and people with a mental illness and their families.

Together with representatives of the MHCA and BMRI, during 2004 I participated in a series of community forums to discuss issues in mental health and related services around .

Our aims were much the same as in the Commission's 1993 National Inquiry on Human Rights and Mental Illness, even if we had much less resources to bring to the task this time.

We wanted to provide a forum for the experience of people affected by mental illness, as patients, families, or carers, together with community and professional service providers; to seek to refocus debate in this area as involving matters of human rights; and to draw public and political attention to this experience as a means of promoting accountability and remedies where abuses or neglect of human rights were found.

The report of these consultations is now planned to be released in July together with comments from governments on draft reports provided to them.

I will be appearing together with Ian Hickie and MHCA representatives before the Senate select Committee on mental health services on Thursday 19 May. We will be briefing the Committee on the continued relevance of the issues from HREOC's 1993 report and MHCA's 2003 report and the confirmation of those issues in the consultations last year.

Consistently around , we heard over and over again that the issues raised in the Commission's Inquiry over 12 years ago largely remain and that the promise of the National Mental Health Strategy remains largely unfulfilled.

Some key points from the consultations were these:

  • Resources provided are simply inadequate to match the level of unmet needs and ensure access to treatment and services when they are needed. Accountability for money allocated to mental health services is seriously lacking.
  • The most frequently mentioned gap in mental health services was the absence of early intervention and other specialist services for young people. All too often people are being told, in effect, to come back when they are really ill. It is a good time to look at prevention and early intervention, rather than face the high cost of the treatment, in the future. As you all know, leads the way in development of early intervention programs for mentally ill. They are being implemented overseas, but not in .
  • Despite increasing evidence of links between drug use and mental illness we still lack adequate mental health facilities to cope where a person also has an addiction - or other forms of dual diagnosis
  • In all States I received reports of children and young people being admitted to inappropriate adult facilities.
  • Emergency services are overburdened and often inaccessible. Acute care services are too often simply missing, especially in regional . This results in preventable death.
  • Community supports likewise are seriously overburdened and unable to cope with the existing demand.
  • Those with a mental illness are still being blamed for being sick.

These consultations confirm other reports

The reasons for the problems with services identified by these consultations have been repeatedly identified as coming down to the issue of resources.

The evaluation of the Second National Mental Health Plan, published by the Department of Health and Ageing in March 2003, stated that:

progress has been constrained by the level of resources available for mental health and by varying commitment to mental health care reform. While the aims of the Second Plan have been an appropriate guide to change, what has been lacking is effective implementation. The failures have not been due to lack of clear and appropriate directions, but rather to failures in investment and commitment.

A shorter way of saying that might be that governments have not sufficiently matched their words with dollars.

Key conclusions of the evaluation were that

  • while there has been growth in mental health expenditure, this has simply mirrored overall health expenditure trends and is not sufficient to meet the level of unmet need for mental health services;
  • while community treatment and support services have been strengthened, community treatment options are often still unavailable or inadequate, with growth in resources to the non-government sector in particular not having kept pace with their increased role
  • although access to mental health care has been improved, consumers are still frequently unable to access mental health care as and when they need to
  • in particular, follow-up care into the community after hospitalisation for an acute episode is often lacking.

Very similar conclusions can be found in the "Out of Hospital Out of Mind" report released by the Mental Health Council of Australia (MHCA) in April 2003 in the lead up to the Third National Mental Health Plan.

Accountability: a mental health Commission?

HREOC wrote to the then Federal Minister for Health to call for a positive response by Government to the MHCA report. We urged serious consideration of the MHCA's call for establishment of a national Mental Health Commission such as exists in , to contribute to policy development, monitoring and accountability, and community education regarding mental health issues.

The former Minister responded that the concept of a national Commission of this kind was not transferable from to 's federal system.

The government response to the MHCA's recommendations, and to HREOC's representations in support of those recommendations, appeared also to indicate that a mental health commission was not required because HREOC had power to investigate relevant human rights issues.

We have said publicly, but I want to say again, that the ability of a Human Rights Commission to conduct national inquiries is in no way a substitute for ongoing mechanisms for accountability, education and policy development.

For one thing, we simply do not have the resources.

For another thing, HREOC does not and cannot see to present itself as the ultimate authority on mental health issues in place of community and professional experts, or to sit in critical and conclusive judgment on what mental health workers are achieving with limited resources and increasing demands.

NSW mental health inquiry and government response

Here in NSW, in December 2002 a Parliamentary inquiry reported a range of concerns which closely resemble those identified in 1993 by the Commission.

One of the most striking statements in that NSW inquiry was that prisons and homelessness had become new forms of institutionalisation for mentally ill people in the absence of any other sufficient services and supports.

To those forms of re-institutionalisation, perhaps, we must now add detention and deportation.

The negative findings of the NSW Parliamentary inquiry were made notwithstanding many positive initiatives which it also described. It indicated an 18% per capita increase in mental health spending since 1992, and a significant increase over that time in the proportion of mental health spending going towards community services (41% compared to 30%).

In April 2004 NSW announced additional mental health funding of $60 million per year, amounting to about a 9 per cent increase on previous mental health budgets.

Assessing government commitments

These figures appear impressive.

But as many Sydney dwellers might reflect each morning as they wait for the train to come, even very large new investments do not necessarily give you a satisfactory service if you are starting from a low base, catching up on under-investment in past years, or failing to keep pace with expanding demand.

As I have already said, a national Human Rights Commission is in the end not best placed to assess the details of mental health budgets or services, despite the critical importance of mental health services for effective exercise of human rights.

Most if not all the people in this room are more expert on mental health issues and services than I am or than a Human Rights Commission is institutionally.

Where I hope and believe we do have a valuable role is in drawing more attention to the voices of those who are the experts - whether as consumers, carers or service providers.

Resources once again

The voices we heard in our national consultations seem to me to be saying that the needs above all are for better accountability and for significantly more resources.

There must be more money put on the table. The money is needed for research, innovation and better services. For example, we were frequently told that more money is needed for research on links between drugs and mental illness in young people.

currently spends only about 7% of its health budget on mental health.

By comparison, as many of you would be only too aware, other first world economies are spending between 10-14% of their health budgets on mental health. now spends twice as much per capita compared with this country.

Last year's Federal election saw both major parties make significant commitments on mental health funding.

The Federal government, in the election context, committed an additional $110m to mental health.

I have not yet had the opportunity to analyse last week's Federal Budget in detail. But I did note the strong view of the AMA that on mental health the budget was a major disappointment and that the Government had failed to build on its 2004 election promises.

Conclusion: Employment measures

More positively, perhaps, and before I conclude my remarks to allow a more open discussion, I hope to see further details soon of Budget announcements on initiatives to assist people with disabilities to gain and retain employment.

Employment of course can make a huge contribution to mental health and self esteem as well as being important for putting food on the table.

Initial reaction from the disability community to the employment measures in the Budget has been far from positive. The peak disability representative body, the Australian Federation of Disability Organisations, had this to say:

The 2005/2006 Federal Budget angered many people with disability by introducing changes that will leave many people with disability significantly worse off, while doing little to improve their employment opportunities.

60,000 people with disability over three years will be $20-40 a week worse off under new DSP rules. People with chronic and degenerative conditions like HIV/AIDS, Multiple Sclerosis or mental illness will be particularly adversely affected.

The significant barriers of discrimination in employment and lack of access to public transport and the built environment have not been addressed in the Budget. Neither has the Government heeded the Australian Federation of Disability Organisations' call for a national employment strategy focused on employers and improved job retention for people with disability.

I do not want to enter a debate here about the appropriateness of the Government's proposed changes to the DSP. I would not at any rate want to accuse the government of sharing the simplistic, not to say repellent, prejudices of headline writers who proclaim the budget as a victory for the "workers" against the "shirkers".

Very clearly, however, an effective strategy for increasing employment participation cannot be built on this sort of rhetoric but must address the barriers which people with disabilities face in getting or keeping work, including people experiencing a mental health problem.

There must be a real commitment to new and innovative measures to assist in gaining and retaining employment as well as return to work after an episode of illness.

We are quick to push people out of hospitals and into the community. But there are no jobs for them. Our success rate in this is among the lowest amongst the OECD countries.

You may be aware that the Commission is currently conducting a national inquiry on employment and disability.

We have received more than 100 submissions so far. I have been struck by how many of them raise mental health issues.

I intend to issue an interim report in July and following this to convene a forum specifically on mental health and employment issues.

With the help of committed professionals like Ian Hickie and yourselves, I'm sure we all intend to work for positive outcomes for people with a mental illness and their families in employment as well as in access to appropriate services.

Thank you.

Address

Australia