Report of the National Inquiry into the Human rights of People with Mental Illness
Human Rights and Equal Opportunity Commission, 1993
FINDINGS AND RECOMMENDATIONS (Inquiry chapters 30 and 31)
- People affected by mental illness are among the most vulnerable and disadvantaged in our community. They suffer from widespread, systemic discrimination and are consistently denied the rights and services to which they are entitled.
- Individuals with special needs - children and adolescents, the elderly, the homeless, women, Aboriginal and Torres Strait Islander people, people from non-English speaking backgrounds, those with dual or multiple disabilities, people in rural and isolated areas and prisoners - bear the burden of double disadvantage and seriously inadequate specialist services.
- The level of ignorance and discrimination still associated with mental illness and psychiatric disability in the 1990s is completely unacceptable and must be addressed.
- In general, the savings resulting from deinstitutionalisation have not been redirected to mental health services in the community. These remain seriously underfunded, as do the non-government organisations which struggle to support consumers and their carers. While the movement towards mainstreaming mental health services may alleviate the stigma associated with psychiatric care, there is a serious risk it will not receive the resources it so desperately needs.
- Poor inter-sectoral links, the ambivalent stance of the private sector and a reluctance on the part of government agencies to co-operate in the delivery of services to people with mental illness have contributed to the alarming situation described in this report. While the Inquiry welcomes the initiative recently taken by governments in endorsing a National Mental Health Policy and Plan, a major injection of resources will be needed before we are in a position to comply with our international obligations under the UN Principles for the Protection of Persons with Mental Illness.
Mental Health Services (Chapter 5)
- The promise of more, and more effective, community~based services following implementation of policies of de institutionalisation has not been realised. Most jurisdictions have not substantially redirected funds from expensive inpatient psychiatric institutions to community mental health services.
- New policies of 'mainstreaming' mental health services will not work without a substantial increase in resources and greatly improved coordination between all government and non-government service providers.
- Concerns about mainstreaming are particularly pronounced in relation to specialist services. Specialist public and private mental heath services in Australia are inadequate and underfunded; there is a real risk that they will be increasingly marginalised.
- Many psychiatrists in private practice treat few people affected by serious mental illnesses.
- The existing relationship between the public and private psychiatric systems militates against optimum patient care.
- Private inpatient care is virtually unobtainable by people who do not have private health insurance. There is also evidence that certain funds may discriminate against people with mental illness
- Although levels of funding suggest that the non-government sector is regarded as peripheral to psychiatric treatment and rehabilitation, governments are deliberately relying increasingly on non-government organisations (NG0s). Indeed, evidence to the Inquiry indicated that NG0s are now assisting many people virtually discarded as 'untreatable' by the public psychiatric system.
- Federal, State and Territory governments should provide increased funding and resources to integrated mental health services as a matter of urgency. In the first instance Governments must give priority to redirecting funding from high cost institutions to such services.
- Governments should accord a high priority to improving inter-agency and inter-sectoral co-operation and coordination.
- Governments should investigate innovative methods of service provision in consultation with non-government organisations and the private health sector. The possibility of leasing beds from the private sector to cater for people with special needs (such as children and adolescents) should be pursued in some areas.
- Private psychiatrists should acknowledge a professional responsibility to treat serious mental illness.
- Links between the public and private psychiatric systems must be strengthened and particular attention given to access by private psychiatrists to the public system.
- Private health funds should ensure eligibility criteria are nondiscriminatory.
- All governments must substantially increase funding and resources to non-government services.
- Federal, State and Territory governments should improve access to relevant non-psychiatric programs and services such as HACC, SAAP and public housing programs.
- Governments should encourage the establishment of non-government services in rural and isolated areas.
Health Professionals (Chapter 6)
- The quality of psychiatric care is critical to the welfare of many individuals affected by mental illness.
- Medicare funding is not available for a wide range of services provided in the community.
- The continuing drift of mental health professionals and allied staff from the public sector to the private sector is seriously restricting access by people with mental illness to appropriate services.
- The needs of mental health professionals and allied staff in terms of primary and continuing education and training are not adequately met.
- General practitioners (GPs) have insufficient training in the assessment and treatment of mental illness. This is particularly apparent in specialised areas such as the diagnosis and treatment of psychiatric disorders and mental health problems in the elderly, children and adolescents and other particularly vulnerable groups.
- Mental health professionals and allied staff working both in institutions and the community require education and training in the delivery of community based services.
- Workers and service providers in other sectors need appropriate training and education to meet the specific needs of people with mental illness.
- The Federal Government, in consultation with State and Territory Governments, service providers, mental health professionals and allied staff, and people with mental illness should develop and implement national standards concerning the regulation and maintenance of psychiatric care and treatment. These standards should, inter alia, address the issue of appropriate minimum staffing levels to ensure effective treatment.
- The Federal Government, in consultation with State and Territory Governments and service providers should examine and clarify the treatment roles of mental health professionals and allied staff working both in institutions and in the community. In particular, the roles of psychiatrists and clinical psychologists should be carefully assessed to ensure the most effective utilisation of professional services.
- The role of mental health professionals and allied staff in the delivery of community-based services must be adequately recognised by the Federal government in Medicare funding.
- The Federal Government, in consultation with State and Territory Governments, service providers, professional associations, mental health professionals and allied staff should examine options to encourage mental health professionals and allied staff to work in the public sector. Options for expanding the role of mental health professionals and allied staff in the private sector in the treatment of people with chronic mental illness should also be examined.
- The Federal Government, in consultation with State and Territory Governments and professional associations should improve the links between GPs and private and public sector mental health professionals and allied staff. Consultation-liaison psychiatry should be supported.
- Education authorities should examine the mental health education and training system in order to identify deficiencies and clearly define the specific training needs of mental health professionals and allied staff working with people with mental illness.
- Major universities should be encouraged to make academic appointments in rehabilitation psychiatry and psychiatric nursing and additional appointments in child and adolescent psychiatry, psychogeriatrics, co-morbidity, family intervention, and forensic psychiatry.
- State education authorities need to provide appropriate undergraduate, graduate and continuing education programs. In particular, further programs are needed in community-based service delivery skills.
- Governments and medical authorities should investigate the establishment of Institutes of Psychiatric Training in States where these do not exist.
- Training courses should be as accessible as possible. Particular attention must be given to the needs of rural and isolated professionals.
- Health employers should ensure that staff are able to attend continuing education and training programs.
- Compulsory continuing education should be a requirement for reregistration, particularly registration of psychiatrists.
- Trainee psychiatrists and psychiatric registrars must be provided with appropriate clinical supervision and support.
- The training of general practitioners must place greater emphasis on the assessment and treatment of mental illnesses and mental health problems.
- Tertiary-based nurse education programs must accord higher priority to mental health training.
- Government Equal Employment Opportunity plans should provide specifically for the needs of people with mental illness and psychiatric disability.
- Federal, State, Territory and local government employees delivering services to the public should receive appropriate training in the needs of people affected by mental illness.
Inpatient Care and Treatment (Chapter 8)
- The lack of crisis teams to assist with psychiatric emergencies sometimes places consumers and their families at serious risk. It also means that the police are often forced to intervene to take seriously ill people to hospital 'criminalising' the process and reinforcing stigma and fear in the community.
- The rights of people with mental illness to inpatient care in a safe, therapeutic environment are not being respected. Violations and abuse continue, and the universal right to treatment with humanity, respect and dignity is frequently disregarded.
- Avenues to hear and investigate grievances by inpatients are inadequate. Where such avenues do exist, many people in psychiatric facilities are either unaware of or unable to access them. Patients are afraid of retribution by hospital staff if they make a complaint.
- Some form of long-term institutional care must be retained for the small proportion of people whose psychiatric disability is so severe that they will not be able to live in the community.
- Health departments should ensure an adequate number of trained psychiatric emergency or crisis teams - on call for 24-hours, seven days a week - in each health region in Australia. In areas where this is impracticable because of distance or small population, alternative mechanisms should be established, using, for example, local general hospital staff, a GP or a community nurse, with telephone access to a consultant psychiatrist.
- Independent hospital visitors (Official Visitors, Community Visitors, Boards of Visitors or their equivalents) should be appointed to oversee patient rights and welfare. They should be given appropriate formal powers of investigation regarding consumers' grievances and a clear line of responsibility to an executive officer with statutory powers, independent of the hospital administration. Jurisdictions without sufficient hospital visitors to undertake this role effectively should rectify this situation. Complaints should initially remain confidential and independent of clinical staff.
- Independent, statutory complaints investigation bodies should be established in each State and Territory.
- The ambulance service should be used wherever possible to transfer a person in an acute state of mental illness (who is unwilling to go by the usual means) to hospital. Police should be called upon as a lastresort and, if genuinely required, unmarked police cars should be used, not divisional vans ('paddy wagons'). Police officers likely to be involved in these situations should receive appropriate training and should comply with a special code of practice.
- Where a mentally disturbed or distressed person seeks admission to an inpatient psychiatric facility but does not appear to meet admission criteria, they should be afforded 'asylum' for one night or, at the very least, referred to mental health personnel or an appropriate agency which can provide immediate support. In no circumstances should individuals be turned away without any assistance
- General hospitals should develop and constantly review their psychiatric admission procedures to ensure the most appropriate assessment and treatment.
- Hospital administrations must ensure that every person admitted to a psychiatric facility receives a full physical health check as soon as possible after admission. Physical health should he monitored for the duration of each person's stay and arrangements made for medical attention where required.
- Staff should provide information to people on admission to hospital, or as soon as they are able to receive it, about their rights and responsibilities, complaint procedures, the names and roles of treating doctors and nurses, hospital rules and procedures, and daily activities.
- Staff must inform patients about medication prescribed in hospital -including its effects, side-effects, duration of administration and frequency of review, anticipated outcome, associated risks, and possible alternatives. Patients should he given an opportunity to express views and ask questions of the prescribing doctor.
- Prescribing doctors must review patient histories to ascertain suitability and effectiveness of specific medications. Medication should be carefully monitored and notations made in patients' files for future reference.
- Medication should only be administered for the welfare of inpatients and to alleviate the symptoms of their illness. Staff in hospitals should never use medication as a 'management tool'
- Alternatives to medication should be considered wherever appropri ate. The views and preferences of the consumer should be considered at all stages of the treatment process.
- Psychiatric facilities should provide a reasonable degree of privacy, room for and access to personal belongings, a comfortable environment, indoor and outdoor recreation space, and separate areas where patients can talk to visitors.
- Hospital administrations should provide inpatients with opportunities for continuing and remedial education.
- ProtocoIs should be established for the use of seclusion. Seclusion should be employed only in the rarest of circumstances and only after all other nursing strategies have been attempted without success. Any seclusion room must have a toilet.
- Attempts must be made to minimise the occurrence of assaults and abuse in hospitals by employing sufficient numbers of skilled psychiatric nurses and other mental health professionals committed to establishing therapeutic relationships with inpatients; by avoiding overcrowding or inappropriate patient mixes in wards; and by working to defuse tension and create a positive living environment.
- All staff should be aware of the procedures for reporting assaults and other serious incidents. Allegations by inpatients should he followed~up immediately.
- A treatment plan should be drawn up for each inpatient as soon as practicable after admission. The plan should be regularly reviewed in consultation with the individual wherever this is possible.
- The preparation of plans for care and treatment after discharge should commence early in the person's hospitalisation and should involve both the individual and appropriate family members, especially if they are to become carers. Community mental health workers and relevant community agency representatives should participate in the discharge planning process at least once before discharge takes place.
- The discharge summary for each patient should include information about diagnosis, history (including previous medication), treatment provided, current status and current medication requirements. The discharge summary should be provided, with the individual's consent, to the person responsible for oversight of the individual's treatment after discharge.
- Inpatient facilities should collect data for service planning purposes regarding the anticipated accommodation arrangements for each person leaving hospital.
Community Care and Treatment (Chapter 9)
- The inadequacy of existing community mental health services to treat, care for, and support people with mental illness living in the community is disgraceful. Those services which do exist are grossly underfunded and underdeveloped.
- Very few community mental health services have established systematic follow-up procedures.
- There has been virtually no systematic retraining of psychiatric hospital staff to work with people in a non-institutional setting in the community.
- There is little coordination between mental health services provided to people in inpatient psychiatric facilities and community mental health services.
- Procedures for discharge planning and for co-ordination of services for community treatment and care of people with mental illness are generally inadequate and, in many instances, non-existent.
- There are conflicting views regarding the compulsory administration of antipsychotic medication to people subject to Community Treatment Orders (CTOs). CTOs offer a form of involuntary treatment which is less restrictive than hospitalisation. If they become too intrusive, however, they are likely to be resisted and additional safeguards may be necessary.
- Community mental health services should include an appropriate combination of inpatient facilities, crisis services, mobile teams, outpatient services, day programs, community outreach and followup, accommodation support, and rehabilitation programs (including social skills, living skills, recreation and health promotion, education, management and budgeting, self esteem building, medication manage~ merit, where appropriate, and vocational rehabilitation). Nonvocational rehabilitation programs must be provided for those whose disability makes employment unlikely.
- Governments in all jurisdictions should institute procedures to ensure that community mental health services attain levels of mental health care and treatment such as those prescribed in the Area Integrated Mental Health Service Standards.
- Mental health services should not attempt to care for people with serious mental illnesses in the community until it can be demonstrated that appropriate accommodation and sufficient numbers of suitably trained community mental health staff are available to provide adequate care and support for them.
- Governments in all jurisdictions should provide priority funding for psychiatric disability programs (including psychosocial rehabilitation), until funding for these services is at least equivalent to that provided for other categories of disability.
- All departments and agencies involved in the community care of people with mental illness should develop and implement procedures to ensure effective inter-agency collaboration.
- Inter-agency training should be provided to familiarise staff with the needs of people with mental illness and appropriate responses to assist their integration into the general community. Other government and non-government workers who deal with the public should be given basic information about mental illness and the importance of treating consumers with respect.
- Health administrations must allocate funding to retrain psychiatric hospital staff for community work.
- The new Divisions of General Practice should encourage GPs to actively participate in community mental health services for people with mental illness living in the community.
- Inpatient and community mental health service staff should work together to develop a practical management plan for every individual with a mental illness who comes into contact with either community or inpatient mental health services. The individual and appropriate family members should participate in the formulation of the managemerit plan.
- One person should be nominated to oversee the coordination of services for individuals who require access to a range of services. This person should establish and maintain a therapeutic relationship with the individual and ensure that, where appropriate, family members are included in decisions and management.
- Legislation in all jurisdictions should make provision for compulsory treatment in the community. Mental health services should monitor compulsory Community Treatment Orders to evaluate their benefits, disadvantages and overall effectiveness.
- The level of income support for people with chronic mental illness should be increased to provide an acceptable standard of living and to relieve some of the financial burden on carers.
- The Federal Government should examine ways of increasing timely access to new drugs for the treatment of schizophrenia and other serious illnesses.
Accommodation, Boarding Houses and Homelessness (Chapters 10, 11 and 18)
- People affected by mental illness face a critical shortage of appropriate and affordable housing. The absence of suitable supported accommodation is the single biggest obstacle to recovery and effective rehabilitation.
- Government housing programs for people with disabilities exclude many Australians with mental illness, due to inflexible criteria and poor coordination between departments and agencies.
- A large proportion of people with mental illness live at home with their families, who urgently need more respite care.
- Homeless shelters, refuges and boarding houses are now functioning, de facto, as a major component of the 'accommodation' provided by our society for thousands of Australians affected by mental illness. This is completely unacceptable.
- Large numbers of Australians affected by mental illness live in boarding houses. Living conditions in many of these establishments are disgraceful and completely unacceptable for people with disabilities. They rarely have trained mental health workers on staff and generally provide minimal opportunities for rehabilitation.
- Boarding house staff are often involved in dispensing residents' medication, and usually have little or no training for this task.
- The Supported Accommodation Assistance Program (SAAP), the main source of funding for crisis services for homeless people, excludes services specifically for people with mental illness. This is a major problem, given the very large number of homeless people affected by mental illness.
- Some groups of people with mental illness are harder to place in accommodation, due to their age, special needs, personal circumstances, and/or discrimination. These include: Aboriginal people, ex-prisoners and those with a history of violence, young people, women with dependent children and individuals with dual or multiple disabilities.
- Supported accommodation for people with psychiatric disabilities must be established in all major metropolitan and regional centres. This should include crisis, medium-term and long-term accommodation.
- In allocating places in supported accommodation, priority should be given to accommodating particularly disadvantaged groups (as identified in this report).
- Support staff should be available to provide medical, counselling and life skills support. Their hours and availability should be appropriate to the needs of consumers. This support should be provided to consumers wherever they live, whether in designated special accommodation schemes or in public or private housing.
- Hospital discharge plans should include appropriate accommodation placement. Local accommodation providers should be routinely consulted as part of discharge planning.
- State and Territory housing departments should recognise the urgent needs of homeless people affected by mental illness and accord them priority.
- Housing, health and community services departments should work together to provide supported accommodation which effectively meets the needs of people with disabilities. Each Government should nominate one department as the lead agency responsible for coordination of services.
- People with a mental illness should be permitted to share their housing department accommodation with a carer (as are people with physical disabilities in some States).
- Additional funding must be provided for respite accommodation for mentally ill people being cared for by their families.
- Staff at shelters and refuges should be given appropriate training in dealing with people with mental illness. Some shelters may also wish to employ a mental health professional on staff. This must not be permitted to jeopardise their funding from the Supported Accommodation Assistance Program.
- Hospital discharge summaries must be made available to any medical staff assisting shelters to which patients are referred, and discharge summaries should place greater emphasis on behavioural/ functional disabilities.
- All boarding houses or similar facilities which have mentally ill people among their residents should be subject to stringent licensing and regulation by State governments.
- Boarding house proprietors who fully comply with these regulations should be eligible for appropriate financial assistance.
- One condition of licenses should be that boarding house proprietors must co-operate with community mental health support workers.
- Funds for monitoring and enforcement personnel should be increased so that regulation will actually be effective.
- Training programs should be required (and provided) for hostel and boarding house managers and staff, to improve their ability to care for people with mental illness appropriately.
- As part of the National Evaluation of SAAP the current exclusion relating to people affected by mental illness should be eliminated.
- Before someone affected by a mental illness is discharged from any medical facility, one department or agency should be allocated responsibility for arranging their accommodation.
Employment (Chapter 12)
- Vocational rehabilitation for people with a psychiatric disability has been neglected by governments.
- A number of barriers combine to deny most people with a psychiatric disability the opportunity to obtain work commensurate with their abilities and interests. These include lack of access to vocational and educational training, the debilitating effects of psychiatric illness and treatments, job design and negative employer and community attitudes.
- The heterogeneous needs of people affected by mental illness mean that a range of graduated, transitional, vocational and rehabilitation services need to be developed to provide greater access to employment opportunities and more meaningful use of non-working time.
- The Federal Government should undertake an examination of the vocational and rehabilitation support services it provides in order to: (1) better define the specific vocational needs of people with mental illness and (2) identify current deficiencies and gaps in service provision.
- The Federal Government should develop and expand specific vocational services for people with mental illness. Generic vocational services should be made more accessible by ensuring that eligibility requirements and structures take account of the specific needs of people affected by mental illness.
- The Federal Government should fund the development and publication of guidelines outlining the various forms of 'reasonable accommodation' employers could provide to people with mental illness.
- The Federal Government should investigate the introduction of tax incentives or subsidies for employers who make special provision in the workplace for people affected by mental illness.
- The Federal Government should provide funding for the implementation of an education project aimed at employers and workers, and developed in conjunction with employer and union representatives, to combat negative attitudes and discrimination affecting the employment of people with mental illness.
- In the development and expansion of specific and generic vocational and rehabilitation programs for people affected by mental illness, the following issues should be addressed:
- a) The goals and preferences of individual participants need to be acknowledged and incorporated into program design. Programs should be flexibly structured to accommodate changes in an individual's illness and personal circumstances.
- b) Programs must be as accessible as possible. Issues such as geographic location, proximity to public transport, flexible operating hours, eligibility criteria and procedures should be taken into account.
- The Federal Government should encourage the development of 'Clubhouse' or other effective programs based on transitional employment schemes. The Disability Services Act 1986 funding guidelines should be amended to ensure Clubhouse programs access to Commonwealth funds.
- Services for people with mental illness must include a range of options that cater for both vocational and non-vocational needs. The Federal Government, in consultation with appropriate consumer organisations, should support a range of meaningful non-vocational programs to meet the needs of people with mental illness.
Education and Training (Chapter 13)
- Evidence to the Inquiry underlined the importance of education in any effective system of care. In many cases, however, special education programs and services are required to assist people with mental illness achieve their potential. The lack of these services means that those affected by mental illness are denied important opportunities associated with education and training.
- There is a particular lack of educational programs for children and adolescents in hospital or participating in day programs.
- A working party of Federal and State/Territory education representa tives should be established, to clearly define, in consultation with people affected by mental illness, their educational and training needs over the full educational continuum (ranging from pre-school needs to tertiary and vocational studies) and to identify deficiencies in our educational and training system and problems with service delivery.
- The Federal Government should fund an investigation of the practical application of the concept of 'reasonable accommodation' (prescribed in the Disability Discrimination Act 1992) as it applies to the education of students with mental illness. Guidelines outlining the various forms of 'reasonable accommodation' in education services should be developed and publicised.
- State education and hospital authorities should develop appropriate education and day programs for children and adolescents affected by mental illness.
- Educational institutions and authorities should review their access and equity programs to ensure appropriate education, training and support services are made available to people affected by mental illness.
- Education authorities should, in particular, develop and provide appropriate information, career guidance and counselling for students with mental illness.
- Education authorities should also provide appropriate assistance with orientation and enrolments and special assessment and examination provisions for students affected by mental illness.
- Education authorities should make special allowance for those individuals who, because of the onset of illness in early adolescence, lack the necessary 'starter' or eligibility qualifications.
- Educational authorities should offer staff awareness and professional development programs - with particular emphasis on skills development courses for teachers in primary, secondary and tertiary systems in the recognition of mental illness and liaison with appropriate community-based mental health professionals.
- Education authorities should support the expansion of alternative education and training options in TAFE, and the expansion of training options provided by private and community agencies.
- The Federal Government should ensure the provision of appropriate assistance and greater flexibility from DEET and CRS for students with mental illness undertaking tertiary study.
Discrimination: The Personal Experience of Mental Illness (Chapter 14)
People with mental illness experience stigma and discrimination in almost every aspect of their lives.
- Insurance companies and superannuation schemes should ensure that eligibility criteria do not discriminate against people affected by mental illness.
- Other providers of goods and services must be made aware of their legal obligations to people with psychiatric disabilities under Federal disability discrimination legislation.
- Governments and non-government organisations should conduct public education programs to dispel the ignorance and misconceptions associated with mental illness. (See also findings and recommendations for Chapter 27 - Prevention and Early Intervention.)
Carers (Chapter 15)
- The serious lack of community mental health services means that carers carry an enormous and unreasonable burden of care for people with mental illness.
- This burden has adverse effects on carers' physical, emotional and mental health and imposes heavy financial strains.
- Carers are denied information and excluded from decisions concerning the care and treatment of people affected by mental illness.
- Governments must provide appropriate community mental health services (particularly crisis care) to alleviate the onerous burdens borne by carers.
- A range of centre-based, home-based and holiday respite services should be made available for carers and consumers.
- Eligibility criteria for HACC services and DNC benefits should be amended to accommodate the needs of carers.
- Mental health professionals should involve carers in consultations about inpatient treatment and home care and treatment.
- Mental health professionals should provide carers with written and oral information about diagnosis, medication (and its side effects), and proposed treatment.
- Mental health professionals should provide consumers and carers with intensive home support in the first week after discharge from inpatient care.
- Mental health professionals should ensure that carers' knowledge and understanding of the individual affected by mental illness are taken into account in decisions concerning treatment and follow-up.
- Where there is an apparent conflict in the provision of information about an individual's progress and condition, mental health professionals must attempt to balance the rights of the consumer and the carer.
- Governments should provide significant additional funding to carer support groups.
Children of Parents with Mental Illness (Chapter 16)
- Mental health professionals and service providers do not routinely inquire about the existence of any dependents when interviewing or admitting an adult with a mental illness.
- As a result very little is known about what happens to the children of mentally ill parents and their needs are largely ignored. Young people who do not receive appropriate support may be adversely affected for the rest of their lives.
- Child and family support programs are needed urgently.
- Mental health professionals should seek information about dependent children in cases where people present for treatment for a mental illness. Referrals must be made where necessary.
- Relevant government departments such as health, education, family services and community services should co-operatively plan, develop, fund and implement services which provide a range of family and child support services for parents affected by mental illness and their dependent children.
- Agencies must be resourced to develop programs to meet children's varying needs. These include support during a parent's hospital admission, ongoing support after their discharge, and a range of home-based, centre-based, school-based and community-based activities.
- Education authorities and child and adolescent mental health services should institute or modify school-based programs to provide support for school-age children with mentally ill parents. Authorities should support the programs being conducted on a limited basis by ARAFMI and encourage their expansion.
- Governments should allocate adequate resources to non-government agencies which provide programs for children and family members where there is a mentally ill parent. Programs provided by both government and non-government agencies should collect usage data and comply with regular review and reporting requirements.
Elderly People (Chapter 17)
- General practitioners are the main contact point with the health system for elderly people, yet they often fail to recognise mental disorders in these patients. Depression, in particular, is undiagnosed and therefore untreated in a large number of cases.
- General mental health services frequently fail to recognise and meet the needs of elderly people affected by mental illness.
- Research and training on mental illness in the elderly are seriously deficient.
- Many older people with dementia are being denied their right to treatment in the least restrictive environment:
- Approximately 3000 people with dementia are still. confined to psychiatric wards.
- Inadequate support services in the community are forcing older people unnecessarily, or prematurely, into institutional care.
- Outdated, inappropriate design and funding arrangements for nursing homes result in some residents who have dementia being physically restrained or sedated as a method of control.
- These practices frequently constitute serious human rights violations.
- Carers of aged people with mental illness urgently need respite and other support services.
- All medical students should receive some training specifically relating to psychiatric disorders in old age.
- Increased education and information should be provided to GPs concerning diagnosis and treatment of mental illness in older people.
- At the very least, each health area should have a psychiatrist specialising in mental disorders of the elderly, who is available to teach, assess patients and provide advice to GPs and other mental health professionals.
- A specialist psychogeriatric service should be established in every health area (one team for every 25,000 local residents over 65). Such a specialist service should be multidisciplinary, mobile and community-based. It should coordinate all psychiatric facilities for elderly people in the area, including acute, rehabilitation, outpatient and inpatient care, as well as domiciliary services. The service should co-operate closely with the general geriatric health service, and maintain regular contact with all private psychiatrists, nursing homes, hostels and GPs in the area.
- Area guidelines should be drawn up to clarify the responsibilities of psychogeriatric and general geriatric medical services.
- Nurse education should emphasise training in psychogeriatric, skills.
- Funding for research on mental illness in the elderly must be increased.
- Patients with severe ambulant dementia should not be admitted to nursing homes or hostels where the layout cannot accommodate their need to move around. Such homes should modify their facilities or cease to admit these residents.
- The revised formula for the Residential Classification Instrument should be assessed to determine its effect on the chronic problem of underfunding for dementia. If necessary the formula should be reviewed to increase the subsidy for residents with severe ambulant dementia.
- The Charter of Rights for Commonwealth-funded nursing homes, and the associated monitoring scheme, should be extended to all State funded homes.
- Purpose-designed dementia facilities must be supported as a more humane and cost-effective form of accommodation than generic facilities. Funds should be allocated immediately for the planning and construction of such facilities.
- The support services for dementia sufferers and their carers in each health area should be coordinated through an office where carers can obtain all appropriate information and referrals.
- Governments should provide additional respite care, home help, day centres and other support services for carers of elderly people with mental illness as a matter of urgency.
- The Domiciliary Nursing Care Benefit should be increased and criteria which currently operate to exclude many carers of dementia sufferers should be amended.
Women (Chapter 19)
- Some professionals place an over-reliance on symptomatology and purely medical models to the exclusion of psychosocial and environmental factors in diagnosing psychiatric disorders in women.
- The significance of sex-role stereotypes in clinical judgements relating to mental health issues has not yet been sufficiently acknowledged.
- Women are given insufficient information about their illness and proposed treatment.
- The lack of specialised knowledge of Post Natal Depression (PND) and other women's disorders is a major impediment to improving diagnostic and treatment methods.
- Women who have a history of childhood abuse, sexual assault or domestic violence are more likely to be affected by mental illness or mental health problems.
- Allegations of assault and harassment of women inpatients by staff and other patients, or visitors, are common and require effective complaints mecha nisms.
- There is a critical shortage of both emergency and long-term accommodation for women affected by mental illness and their children.
- Pilot early intervention programs should be undertaken to examine:
- the links between violence and abuse and mental illness;
- the efficacy of non-medical treatments for mental illness and mental health problems;
- the aetiology of post natal depression and other psychiatric disorders that affect women;
- the prevalence of sex-role stereotyping and its effect on clinical judgements concerning women's mental health.
- All medical students should receive training in psychiatric disorders and mental health problems in women.
- Additional education and information should be provided to GPO and mental health professionals about the diagnosis and treatment of mental illness in women.
- Greater emphasis should be placed on environmental and psychosocial factors in the diagnostic process.
- GPs and mental health professionals should provide patients with clear and comprehensive information about:
- drugs which-are being prescribed (including possible side effects and/or addictive potential);
- alternative non-pharmaceutical treatments.
- Governments should establish specialist PND clinics so that women can remain with their children, wherever possible, during treatment.
- Treatment, counselling and rehabilitation of women who have suffered violence and abuse should address the situation directly and attempt to protect women from further harm.
- Hospital administrations should take appropriate measures to secure the safety of women who have been the victims of abuse during visits by partners. (Complaints procedures should be implemented and allegations of harassment or assault regarded as serious matters and investigated promptly.)
- Governments must provide resources for supported emergency and long-term accommodation for women affected by mental illness who have children.
Children and Adolescents (Chapter 20)
- There is an extremely serious shortage of child and adolescent psychiatrists and other child and adolescent mental health professionals in most parts of Australia.
- There are serious deficiencies in the provision of staff, services, facilities and programs for children and adolescents throughout Australia.
- The whole field of child, family and adolescent mental health service provision is grossly underfunded, despite the fact that a third of our population consists of young people and that the average age of onset for the most serious mental illnesses is 16 years.
- There is an alarming lack of knowledge among many mental health, health, education, welfare and juvenile justice professionals about the various psychiatric, behavioural and emotional problems which can affect children and young people.
- Governments should allocate increased funding for child and adolescent mental health services as a matter of urgency.
- Health departments should allocate significantly increased resources for the establishment or augmentation of adolescent community mental health clinics, drop-in centres for disturbed or mentally ill adolescents, and child and family outreach and home support services.
- Health departments should allocate substantially increased resources to acute inpatient assessment and treatment facilities for children with mental illness or severe emotional or behavioural disturbance. Facilities should not be restricted to children with a diagnosable mental illness.
- All medical students should receive training in child and adolescent mental health.
- Education and information should be provided to GPs and mental health professionals about the diagnosis and treatment of mental illness and other serious disorders in children and adolescents.
- Outpatient and day-patient mental health services for adolescents should be appropriate for the client group.
- Government departments involved in the delivery of services for children, families and adolescents must ensure improved inter-agency coordination of services. Private and non-government service providers such as clinical psychologists, family therapists, GPs and relevant NG0s should be involved in establishing procedures for inter-agency coordination.
- State and Territory mental health services, in collaboration with departments of family and community services, should provide more day programs for child, adolescent and family counselling and therapy and more in-home support. An appropriate campaign should be undertaken to increase awareness of and access to such services for families under stress.
- Where mandatory reporting of suspected child abuse is introduced it must he accompanied by sufficient resources to enable reported cases to be properly followed up.
- Child and family services should develop protocols in consultation with GPs, health services, schools, social workers, police services, and any church or non-government organisations which may be relevant to follow-up action in cases where child abuse is established.
- Teachers should receive special in-service training in identifying children who are at risk; referring children to relevant services; and, where appropriate, integrating children and adolescents with mental illness and emotional or behavioural disturbance into the classroom.
- Education authorities and tertiary institutions should seek to increase the number of school clinical psychologists in training and increase the numbers appointed to schools.
- Education authorities should ensure that schools provide extra support or remedial education to children who have mental, emotional or behavioural problems themselves, or who are known to live in a dysfunctional or violent family.
- Departments of family and community services should provide more appropriate accommodation for children and adolescents in crisis to avoid the placement of these young people in correctional or detention facilities.
- Juvenile justice agencies should ensure that young people with mental illness or severe emotional or behavioural disturbance who are in detention receive specialist psychiatric assessment before being brought before the courts. The psychiatrist's assessment report must be provided to the magistrate or judge prior to determining placement of the young person.
- Juvenile justice agencies should ensure that young people with a mental illness who are already under detention in either the juvenile justice system or the adult corrections system receive appropriate psychiatric assessment, ongoing treatment and regular psychiatric review.
- Education authorities and mental health services should establish protocols for the provision of critical incident ('postvention') counselling programs in schools after a student has committed suicide.
- Those governments which have not already done so should establish a multi-agency youth suicide prevention task force to devise a range of strategies to counter the rising incidence of youth suicide.
People with Dual or Multiple Disabilities (Chapter 21)
- Specialist services for the many thousands of Australians affected by mental illness and some other form of disability are almost non-existent.
- People with dual or multiple disabilities are, consequently, shuffled from agency to agency - often without finding anyone who will assume responsibility for their care.
- Service providers lack the specialist training and have insufficient resources to deal with dual or multiple disability. Misdiagnosis is common and treatment often inappropriate. This can have devastating consequences.
- Disability, mental health and drug and alcohol services should assume joint or collective responsibility, as appropriate, for the assessment, treatment and rehabilitation of people with dual or multiple disabilities.
- Agency workers should receive special training to deal with the particular problems confronting individuals with dual or multiple disabilities.
- Priority should be given to addressing some of the. most pernicious aspects of the existing 'system', including:
- The sexual abuse of female inpatients affected by mental illness and intellectual disability;
- The use of medication as a 'management tool', particularly in dealing with people with mental illness and intellectual disability;
- The lack of services to effectively address the prevalence of mental illness and substance abuse among young people and the homeless;
- Misdiagnosis of deaf people affected by mental illness;
- Governments should fund the establishment or expansion of facilities for individuals with dual or multiple disabilities who need intensive inpatient care and treatment.
- Research into the aetiology, prevention, assessment and treatment of all areas of co-morbidity should be accorded a high priority.
People in Rural and Isolated Areas (Chapter 22)
- The provision of mental health services in rural and isolated areas is influenced more by economic factors than consideration for the basic rights of consumers.
- The lack of facilities in rural and isolated areas means that people are often transferred to city hospitals or given inappropriate care in a local hospital. Community care is also frequently inadequate.
- There are considerable strains on mental health professionals and GPs working in isolated areas. This makes it difficult to fill even the positions that exist.
- People affected by mental illness (including carers and families) feel particularly isolated and excluded in small rural communities.
- Health planners should ensure that the rights of people in rural and isolated areas to appropriate mental health services are respected.
- Health departments should ensure that resources for dealing with acute mental illness are available in local hospitals and integrated with community services in rural and isolated areas. This process should include specialised training for nurses and GPs and, in appropriate circumstances, recognition of an expanded role for specially trained nurse practitioners.
- Health departments should expand and upgrade community-based mental health services to provide follow-up care and support for those who do not require hospitalisation.
- Professional networks should be strengthened to keep workers in isolated areas in touch with each other and in contact with city-based colleagues.
- Governments should provide funding and support for self-help and support groups for consumers and carers in rural and isolated areas.
- Greater recognition should be given to the benefits of using 'tele- medicine' techniques to provide people in rural and remote areas with assessments and consultations involving input by city-based specialists. Governments should ensure that available technology can be more widely used.
Aboriginal and Torres Strait Islander People (Chapter 23)
- Not enough is known about the incidence or prevalence of mental illness among Aboriginal and Torres Strait Islander people.
- The removal of children from their families, the dispossession of Aboriginal and Torres Strait Islander people and their continuing social and economic disadvantage have contributed to widespread mental health problems. However, mental health services rarely deal with the underlying grief and emotional distress experienced by Aboriginal people.
- Mental health professionals have little understanding of Aboriginal culture and society. This frequently results in misdiagnosis and inappropriate treatment.
- Existing mainstream mental health services are inadequate and culturally inappropriate for Aboriginal people.
- Aboriginal communities do not have access to the knowledge or resources to care appropriately for many of their own people.
- Many Aboriginal and Islander people are denied the right to adequate mental health services because they live in isolated areas.
- The removal of Aboriginal people from remote communities for treatment in town can be extremely destructive to their mental wellbeing. This is particularly so for elderly people.
- Governments must provide funding and resources to enable Aboriginal community-controlled health services to develop and deliver appropriate mental health services to Aboriginal people.
- Joint research projects should be undertaken by Aboriginal communities and mental health professionals to determine the nature and extent of mental illness among Aboriginal people.
- Governments should ensure that mental health policy, planning and program delivery is developed in consultation with Aboriginal people.
- Tertiary courses for non-Aboriginal mental health professionals (particularly psychiatrists and nurses) should include material on Aboriginal history and contemporary Aboriginal society.
- Mental health professionals should acknowledge the role and significance of traditional healers in certain communities.
- Priority must be given to training Aboriginal health workers and other Aboriginal community-based resource people as mental health workers.
- Health departments should identify positions for Aboriginal mental health workers in areas with significant Aboriginal populations.
- Aboriginal liaison officers should be employed by relevant mainstream service providers to improve communication and consultation at all levels of the mental health system.
- All government and non-government mental health services should provide cross-cultural training for staff.
- Mental health services for Aboriginal people should be expanded to include community development, mental health promotion and primary prevention, and crisis intervention services for individuals and families.
- Mental health workers must consult with family and community members before deciding that any individual affected by mental illness requires care or treatment away from the community. Community members should be kept informed about the treatment, progress and likely return of anyone removed from their community.
- Health and community services departments should, in consultation with Aboriginal representatives, develop guidelines for the care of elderly Aboriginal people in remote communities.
People from Non-English Speaking Backgrounds (Chapter 24)
- Mainstream services are not meeting the needs of large numbers of people from non-EngIish speaking backgrounds - particularly women and the elderly.
- People from non-English backgrounds often come into contact with the health system only when their illness has reached the acute stage.
- There is a clear need for transcultural mental health services and specialist programs for individuals with particular needs, such as the survivors of torture and trauma.
- Interpreters are both under-used and used inappropriately.
- There is a dearth of information about the rates of mental illness among different ethnic communities.
- State and Territory governments should establish transcultural mental health services and, as appropriate, specialist programs in each capital city.
- States and Territories should take cultural issues into account in their mental health policies, program planning and service delivery. The employment of multilingual staff and staff with training in cross cultural issues should be encouraged.
- General practitioners, psychiatrists, nurses and mental health workers should receive appropriate training in cross cultural issues (especially in terms of symptomatology, diagnosis and assessment). The special problems facing women and the elderly should be emphasised.
- The composition of mental health review and guardianship bodies should reflect the multicultural nature of our society.
- Appropriate use of interpreters should be standard procedure in hospitals and community mental health centres.
- Interpreters working in the health system need to receive training in mental health issues and terminology.
- Health departments should prepare information on mental illness and mental health services in consultation with ethnic communities and ensure that it is disseminated appropriately.
- Non-government organisations supporting people from non-English speaking backgrounds who are affected by mental illness should receive adequate funding. Government and non-government services should collect usage data and observe regular review and reporting procedures.
Forensic Patients and Prisoners (Chapter 25)
- Mentally ill people detained by the criminal justice system are frequently denied the health care and human rights protections to which they are entitled.
- The denial of treatment to mentally ill prisoners and ex-prisoners often leads to further criminal offending, longer incarceration and aggravation of their mental illness.
- Mental illness does not equate with criminality, nor with a propensity for violence. Persistent criminal behaviour is not an indicator of mental illness.
- Conditions in some Australian prisons and police cells clearly breach our international obligations under the ICCPR and the Standard Minimum Rules for the Treatment of Prisoners. Such conditions are particularly damaging to the health of detainees affected by mental illness or disorder.
- The rate of mental illness or disorder is higher among women prisoners. However, mental health care for them is virtually non-existent. Thus women in prison are doubly disadvantaged.
- Aboriginal and Torres Strait Islander people are massively over-represented in prison and police custody, and incarceration is particularly damaging to their mental health. Yet forensic mental health services are systematically failing to meet their needs.
- Procedures for detecting and treating mental illness and disorder in the Australian criminal justice system are inadequate in all jurisdictions.
- Serious injustice is being done to individuals who are found unfit to be tried or not guilty of an offence on the grounds of insanity. Indeterminate detention at the Governor's Pleasure' is a clear breach of human rights.
- Mentally ill people in the criminal justice system must be provided with appropriate treatment.
- Seriously mentally ill prisoners should generally be treated in health care facilities, controlled and operated by public health authorities.
- Police and Corrective Services departments should ensure that individuals detained in custody are appropriately assessed for mental illness or disorder. Whenever possible, the assessment should be performed by mental health professionals. People from high-risk groups (eg Aboriginal prisoners, first offenders and young people) must always be assessed, even if they do not appear to be mentally disordered.
- Police and Corrective Services officers should be given training to enable them to recognise the signs of mental illness.
- The general practice of admitting prisoners to hospital only in designated 'forensic' beds should be discontinued. Seriously mentally ill prisoners should be admitted to psychiatric wards in general hospitals or acute care wards in psychiatric hospitals, unless they are medically assessed to be dangerous or pose a serious risk of absconding. Designated forensic beds in psychiatric hospitals should be retained only for those people who cannot be safely treated elsewhere.
- Penal systems which insist on keeping seriously mentally ill inmates in prison should provide separate - and appropriate - treatment facilities for women.
- Mentally ill prisoners who remain in jail must have access to adequate treatment by mental health professionals. These professionals should be consulted before their patients are transferred between prisons, and also notified well in advance of release.
- The health and corrective services sectors must Co-operate to ensure that mentally ill offenders on probation or parole receive the treatment they need.
- Mainstream mental health services must not discriminate against people with a forensic history. Selected community mental health centres should receive funding to develop specialist services for ex-prisoners and sentenced offenders living in the community. These centres should co-operate with prison medical services to ensure continuity of care for prisoners on release.
- Periods spent in hospital for the treatment of a psychiatric illness or serious mental disorder during the course of a prison term should be regarded as time served for the purposes of calculating a prisoner's sentence.
- A diagnosis of 'personality disorder' or 'behavioural disturbance' must not be used as an excuse for denying mental health care to individuals who need it.
- Governments should recognise and support the work of community agencies which provide housing and other assistance to ex-prisoners.
- Anyone ordered to be detained in custody after being found unfit to plead, or not guilty on the grounds of mental illness, should be detained in a health facility - not a prison. Administrative arrangements should be made between the courts, health and corrective services departments to ensure that these patients are not forced to wait in prison while a place is found in a health facility.
- Decisions concerning the release of persons found unfit to be tried or not guilty on the grounds of insanity should be made by courts or independent specialist tribunals. These bodies should exercise determinative powers. The executive branch of government should not have the ultimate responsibility for release decisions.
Mental Health Research (Chapter 26)
- Despite the enormous costs of mental illness to our community, funding for mental health research in Australia is woefully inadequate.
- There is an urgent need for research into all aspects of mental illness, and particularly into its impact on the most vulnerable members of our community- children and young people, the elderly, the homeless, women, Aboriginal and Torres Strait Islander people, those from non-English speaking backgrounds, rural Australians and prisoners.
- Australia urgently needs a national database containing information on the prevalence of psychiatric disorders and the disposition and effectiveness of mental health services.
- General funding for mental health research in Australia should be increased over the next three to five years to 2 percent of the direct costs of psychiatric care. This would necessitate an increase to at least $32 million per annum. (The increase should he staged and shared between the Commonwealth and the States and Territories.)
- Priority should he given to attracting young graduates to psychiatric research as a career - and to retaining them in this career.
- The augmentation of psychiatric research should occur within existing Australian medical research structures.
- A high quality national data base, incorporating information on the prevalence of psychiatric disorders and the nature and effectiveness of mental health services, must be established. The data base should integrate, to the maximum extent possible, information from the Commonwealth, States and Territories, and from public and private psychiatric treatment facilities.
- Community support for mental health research should be encouraged by public education programs on mental illness and the rights of those affected by it.
- Research into mental illness and psychiatric disability among the special needs groups identified by this Inquiry must be conducted as a matter of urgency.
- Research into the effectiveness of community-based services should be supported.
Prevention and Early Intervention (Chapter 27)
- Prevention is possible and productive in many areas of mental health. Much of what we know about prevention, if systematically applied, could make a significant difference in the levels and severity of many mental health problems and the degree of disability associated with some mental illnesses. Unfortunately, this knowledge has not been systematically applied to prevention policies and programs for mental health.
- Although the specific causes of serious mental illness have not yet been fully identified, many elements which increase risk are now understood. It may be possible in many instances to lessen risk by mitigating these factors.
- The community has a poor understanding of mental health issues and generally lacks compassion for those affected by mental illness. The debilitating effects of stigma and discrimination further inhibit timely access to care, limit opportunities for treatment and recovery, and create difficulties in rehabilitation and community living.
- Social disadvantage often increases the difficulties faced by people with mental illness and those who are vulnerable and at risk of mental illness. Socioeconomic disadvantage may also lead to depression, anxiety and other mental disorders.
- Cultural factors influence perceptions and understanding of unusual behaviour, and patterns of response and care. Not only is an understanding Of relevant cultural issues essential for the provision of mental health care, but unless care is provided in culturally appropriate ways additional stresses occur, adding to the burden, illness and disability of those affected.
- All groups with specific requirements - such as elderly Australians, homeless people, women, those with dual and multiple disabilities and forensic patients - face particular difficulties in terms of mental health problems. To be effective, prevention strategies must also address these associated factors.
- There is now significant scientific evidence suggesting the effectiveness of early intervention programs in addressing serious mental illness ( eg schizophrenia, bipolar disorder and depression).
- In light of the growing evidence indicating a link between child abuse and the later onset of mental illness, effective child abuse prevention programs and family mediation programs are essential.
- Timely access to care is unnecessarily complicated by a mental health system which continues to focus overwhelmingly on the treatment of illness, at the expense of 'pre-crisis' support and care for vulnerable individuals. The 'compartmentalising' of services and the failure of departments to designate (and accept ultimate responsibility for providing), a coordinated response, contributes to the hardship suffered by many individuals.
Note: A number of the findings and recommendations relevant to this chapter (for example, those relating to Aboriginal and Torres Strait Islander people, the elderly, women, children and adolescents, those in rural and isolated areas, people from non-English speaking backgrounds) have been incorporated earlier in the General Findings and Recommendations.
- There should be a nationwide campaign to educate the general community - and specific groups such as young people at school about mental illness.
- Prevention programs for young people must address youth suicide, depression, conduct disorder and other disruptive behaviour, and take into account the needs of young homeless people, those involved with our 'juvenile justice system', and other groups with special needs.
- Education, support, and respite must be provided for those who care for people with schizophrenia, dementia or other serious illness.
- Education of general practitioners, physicians and those who care for the elderly is a critical aspect of prevention. Much distress and suffering among elderly people can be ameliorated by better diagnostic skills and more appropriate care.
- Programs for vulnerable women should include prevention counselling, stress management, development of support networks, self care, relaxation and assertiveness skills.
- It is critical that women have access to preventive counselling programs after experiencing violence, such as rape, to prevent psychiatric disorder and long term morbidity.
Accountability (Chapter 28)
- Controls and safeguards to protect the rights of people with mental illness and ensure that they receive appropriate care vary considerably in different States and Territories. Procedures are inconsistent and mechanisms for monitoring compliance with standards are lacking. Many mental health facilities have not been accredited by independent accreditation bodies.
- While some jurisdictions have statutory advocates to promote and protect the rights of people with disabilities, advocates do not always have adequate powers or resources to effectively protect people with psychiatric disabilities and do not exist at all in several jurisdictions.
- The Federal Government must ensure there is a consistent set of basic controls and standards in every jurisdiction in Australia.
- Health departments must apply minimum outcome standards, based on nationally consistent criteria, to all mental health services.
- Health departments must develop optimal clinical standards and ensure they are applied in all areas of mental health practice.
- Procedures for quality assurance should be coordinated to ensure that universal coverage and a level of consistency are assured.
- The RANZCP and other professional bodies responsible for mental health should develop substantive and procedural guidelines for peer review.
- Monitoring mechanisms should be strengthened and incentives provided for compliance with national service standards.
- Every State and Territory should have statutory advocates with powers extending to the protection of people affected by mental illness.
Chapter 30: LEGISLATION: FINDINGS AND RECOMMENDATIONS
In its background paper - Mental Health Legislation and Human Rights - published in December 1992, the Inquiry analysed mental health laws in each State and Territory in terms of the UN Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care (see Appendix 5). Widespread breaches of the standards prescribed by those Principles were identified in the background paper. The findings and recommendations set out in this chapter address the problems identified and the concerns raised in evidence to the Inquiry.
One fundamental problem is the language of most existing laws; both the form and substance of the legislation work against the assertion of rights by people with mental illness. The ACT still relies (in relation to forensic patients) on legislation from last century which uses the terms 'lunacy' and 'insane'. In a number of jurisdictions the criminal law still refers to 'insanity' - long after such terminology has been abandoned in the civil sphere. These pejorative terms perpetuate the stigma associated with mental illness. Moreover, the way in which mental health legislation is written, particularly in Queensland and Tasmania, makes it difficult to comprehend - even for those with legal training. The drafting style is turgid, the structure hard to follow and there is insufficient use of clear headings as 'signposts'. Such laws are not well suited to use in emergency situations; nor do they help service providers or consumers to appreciate or to enforce the rights that the laws confer. Mental health legislation must be expressed in clear and accessible terms and provide procedures that are as simple as possible - especially for emergencies.
The findings and recommendations set out in this chapter relate specifically to changes which should be accorded priority by governments in amending or introducing mental health or related legislation. They should be read in conjunction with the findings and recommendations set out in Chapter 31 - which deal more generally with reforms which are necessary to policies, programs and services to ensure proper protection of the rights of Australians affected by mental illness.
In our view, mental health legislation should start with the principle that it is an extremely serious matter to deprive a person of his liberty. Allowing for that, it should allow for prompt, effective action to provide for the care and control of someone who has become acutely disturbed, allowing them to be taken to a place of safety and evaluated. It should provide some means of protecting those who have become mentally incompetent and it should provide effective means by which individual rights are protected and the actions of those who are placed in control of people who have become incompetent become accountable and able to be monitored. The current legislation fails rather dismally by any test. 1
Statutory Objects and Definitions
- Certain jurisdictions (the Northern Territory and Western Australia) have no statements of principles or objectives in their mental health legislation. Laws in other jurisdictions are inadequate in that they give insufficient emphasis to the principle of the 'least restrictive alternative' in relation to the care and treatment of people with mental illness.
- In most jurisdictions mental illness is not defined at all in existing mental health legislation - or is defined in a way that is inadequate in light of modern knowledge. This creates uncertainty over issues that are critical to matters of admission, treatment and discharge. It also provides no basis for consistency among and between Australia's eight different jurisdictions.
- Mental health legislation should clearly set out the principles and objects on which it is based and, in particular, should give emphasis to the principle of the least restrictive form of appropriate care and treatment.
- There should be a clear and consistent definition of mental illness in each jurisdiction's mental health Act, providing specific criteria which apply in all jurisdictions.
The situation which gave rise to the criminal charge occurred shortly after her fifth [unsuccessful] attempt to admit herself as a voluntary patient ..2
- Mental health legislation makes insufficient provision for the rights of voluntary (or informal) patients.
- Most jurisdictions do not provide a right of appeal against refusal of admission as an informal patient.
- The rights of informal patients to discharge themselves are often subject to significant restrictions, and no legislation clearly deals with the rights of voluntary patients to refuse specific forms of treatment.
- Provision should be made for a right to appeal against refusal to admit an individual as a voluntary patient.
- The right of voluntary patients to discharge themselves should not be limited other than to provide sufficient notice to allow urgent action to detain them if this is justifiable under the provisions for involuntary treatment.
- There should be a clear statement concerning the extent of the rights of voluntary patients to refuse specific forms of treatment.
There are certainly some members of the medical profession who regard the processes and procedures for detaining people in... a cavalier fashion.3
- The criteria for detention are too broadly defined in most jurisdictions.
- The procedures for involuntary admission in a number of States involve the exercise by police, magistrates and medical practitioners of very wide discretion.
- In most jurisdictions there is insufficient provision for assessment by appropriately independent and expert medical practitioners prior to detention.
- Detention procedures in emergencies are often inappropriately cumbersome.
- The criteria and procedures for detention in emergencies should be clear and clearly specified. Limits on their application should be clearly defined.
- The criteria for involuntary admission should be specific and should include the requirement that there is no less restrictive form of appropriate treatment available.
- Procedures for involuntary admission should require assessment by independent expert medical practitioners. (In emergencies the initial opinion of more generally qualified health practitioners must be verified or varied by an appropriately qualified expert as quickly as possible.)
In the area of civil commitment of the mentally ill we vest great power in the hands of medical practitioners. No matter how well-intentioned, how humane these people may be, I suggest that it's axiomatic that their daily practices have to be subject to proper external review.4
- Provisions for review are non-existent or inadequate in a number of jurisdictions.
- Where independent review bodies exist, they are not always required to automatically review patients.
- The intervals for which a person may be detained without review are frequently excessive (many patients are discharged before the statutory time for review has elapsed).
- Independent specialist review bodies should be established in every jurisdiction.
- These review bodies should be required to conduct an initial review of involuntary patients within a time limit that is less than the average term of detention.
- These review bodies should also be required to review involuntary patients at intervals of no more than six months and voluntary patients at intervals no longer than one year.
- Individuals should be guaranteed a right to apply to the review body for discharge - exercisable by either the person concerned or an authorised relative or friend of the patient.
A person finds themselves going into a hearing with or without a lawyer, with a state system, a hospital system, which has for ten years been building a case against them... There are clinical files, there are all sorts of diagnoses, labelling, and systems which the psychiatric consumer may in part be familiar with and yet for the most part they will be entirely unaware of... The individual is very poorly resourced to deal with the legal proceedings which are taking place.5
- Few jurisdictions make statutory provision for personal appearance or legal representation at review hearings.
- In no jurisdiction is there express provision for access to an interpreter.
- Where legislative provision is made for access to information relevant to a case under review, this is not done in sufficiently clear, straightforward terms.
- Individuals should be given statutory rights to appear in person at review hearings, to have access to an interpreter if necessary, and to be represented by a lawyer or other person with leave of the tribunal.
- Provision should expressly be made guaranteeing the basic elements of natural justice - in particular, access to relevant information.
- Individuals should have a right of appeal from decisions of the review body.
I don't think that medical culture has yet embraced the notion that patients have rights and that people must be seen as more than simply diagnostic labels and vehicles for treatment.6
- Few jurisdictions provide for involuntary treatment without detention.
- While some jurisdictions have detailed requirements for administration of ECT and psychosurgery, others have none.
- In all jurisdictions there is inadequate clarity in legislation relating to the requirements for informed consent to general psychiatric treatment of voluntary and involuntary patients.
- Legislation in all jurisdictions should make provision for compulsory treatment in the community. Appropriate safeguards must be prescribed to avoid over-use or other forms of abuse.
- Administration of ECT or psychosurgery (where it is permitted) must be subject to stringent and clearly specified requirements for consent by the patient, where this is possible, and independent specialist approval.
- The position of voluntary and involuntary patients regarding consent to general psychiatric treatment must be set out clearly in legislation.
- Safeguards against breaches of confidentiality in the mental health system are inadequate.
- Every jurisdiction should have penalties for breaches of confidentiality in relation to personal information obtained in the administration of mental health legislation.
Release decisions are made by State Cabinet and, inevitably, it appears political considerations are taken into account.7
- Most jurisdictions do not adequately divert from the criminal justice system individuals accused of crimes who require psychiatric treatment.
- In most jurisdictions patients accused or convicted of a criminal offence have lesser rights in relation to matters such as treatment, information, and review than other patients.
- In most jurisdictions, decisions to discharge forensic patients are not made by
an independent review body.
- Mental health and related legislation must ensure that any person accused or convicted of criminal offences and in need of psychiatric treatment is provided with such treatment in an appropriate environment.
- Forensic patients should be accorded rights equivalent to those of other patients in matters other than leave and discharge.
- Decisions about the discharge of forensic patients should be made by an independent body and not at a political level.
What we really need is an ongoing whistle blower which is independent.. and which will be able to go around and constantly bring to public attention any difficulties in standards, in particular, in hospitals 9
- While all mental health legislation provides for safeguards and standards in hospitals designated for the involuntary treatment of mental illness, there is not the same systematic control in relation to community treatment facilities.
- There is, in most jurisdictions, a paucity or complete absence of criteria for monitoring standards in psychiatric facilities.
- Most jurisdictions do not have a statutory mechanism for consumer complaints.
- Most jurisdictions do not have an independent advocate monitoring conditions of treatment.
- Legislation should set out clear criteria for the approval of all psychiatric facilities. It is also recommended that the Commonwealth adopt a monitoring role in this regard.
- Safeguards and controls applicable to compulsory treatment by community facilities should ensure rights at least equivalent to those specified in relation to designated hospitals.
- Consumer complaints should be dealt with by a statutory body with appropriate powers to investigate and either to settle by conciliation or to 'prosecute' where appropriate.
- Each State and Territory should have an independent advocate with statutory power and responsibility to monitor the provision of services and maintenance of standards.
Guardianship and Administration
- In some jurisdictions there are no provisions for an independent determination concerning the capacity of individuals with mental illness to make decisions regarding their personal and financial affairs and for appointment of substitute decision-makers.
- While several jurisdictions have provision for enduring powers of attorney, there is not similar provision for self-determination and planning of guardianship.
- Every State and Territory should have an independent statutory body with power to determine capacity in relation to personal and financial affairs and to appoint substitute decision-makers where appropriate.
- Every jurisdiction should make provision for individuals to appoint a nominee to be their guardian and to specify the conditions they wish to place on such guardianship while they have the capacity to do so.
- In some jurisdictions there is no prohibition in State or Territory legislation (as compared to Federal legislation) against discrimination on the ground of mental illness or psychiatric disability.
- Discrimination (appropriately defined) on the ground of mental illness or psychiatric disability should be proscribed by law in every jurisdiction.
We have eight different jurisdictions and some really very bizarre situations arise... For example.. patients from the Northern Territory - the Alice Springs areas - were often moved to South Australia for treatment and you would have a fairly strange situation occurring at Adelaide airport where the Territory authorities would formally hand over to the South Australian authorities and the individual would have to be re-certified. It was like something from a spy novel, a transfer at the Berlin Wall.10
- Serious difficulties are caused by governments' limiting of recognition of orders and provisions under mental health, guardianship and administration legislation to their own States or Territories. Many individuals affected by mental illness are highly mobile and indeed are sometimes transferred across State borders for treatment.
- Every jurisdiction should have legislative provision for the reciprocal recognition of orders relating to detention, involuntary treatment, guardianship and administration of property.
- The definition of 'hostel' in the Aged or Disabled Persons Care Act specifically excludes an institution exclusively or primarily for people with mental illness and receiving funding from a State govermnent.
- This exclusion should be removed so that the Federal government can fund hostels conducted for people with mental illness regardless of whether the institution also receives some State funding.
- The criteria in Regulations under the Aged or Disabled Persons Care Act governing eligibility for hostel care (in hostels funded under that Act) discriminate against people affected by mental illness.
- The criteria governing eligibility for care in federally funded hostels should be amended to ensure they do not discriminate against those affected by mental illness.
- Criteria under the National Health Act for classification of residents of nursing homes according to the level of personal care they require, do not give sufficient weight to cognitive and/or affective dysfunction. Similar deficiencies exist in relation to criteria governing eligibility for the Domiciliary Nursing Care Benefit.
- These criteria should be amended to give greater weight to the personal care needs of those with cognitive and/or affective dysfunction.
- The limitation of eligibility for the Domiciliary Nursing Care Benefit under the National Health Act to carers who reside in the same homes as those for whom they care is unduly restrictive.
- Eligibility for the Domiciliary Nursing Care Benefit under the National Health Act should be extended to carers who live separately from those for whom they care, provided this care is sufficiently intensive and regular.
- The procedures for obtaining and maintaining eligibility for Disability Pension, Sickness Allowance and Job Search and Newstart Benefits include requirements which are often difficult for people with mental illness to meet.
- Procedural requirements for these Pensions, Allowances and Benefits should be made sufficiently flexible to take account of difficulties that may be encountered in relation to matters such as accommodation and the intermittent nature of much psychiatric disability.
- The criteria for psychiatric impairment under the Social Security (Disability and Sickness Support) Amendment Act are too vague and, in particular, lack specificity as to the frequency of symptoms required.
- These criteria should be amended to make them clearer and more specific.
- The categories of service for which rebates are available under the Health Insurance Act do not cover many 'non-medical' services, such as psychological counselling and stress management, which can be particularly important in preventing mental illness or its recurrence, or promoting effective rehabilitation of those affected.
- The Federal Government should include a broader range of options within the scope of services for which rebates are available - particularly for psychological and counselling services which are important to those affected by mental illness.
1. Dr Ian Sale, Tasmanian Branch, RANZCP. Oral evidence, Hobart 12.11.91, p181.
2. Karen Fryar, ACT Legal Aid Office. Oral evidence, Canberra 18.3.92, p74.
3. Keith Darwin, community representative on the SA Mental Health Review Tribunal. Oral evidence, Adelaide 23.10.91, p382.
4. Neil Rees, President, Victorian Mental Health Review Board. Oral evidence, Melbourne
5. Steven Hird, solicitor, Mental Health Legal Service. Oral evidence, Melbourne 10.4.9,
6. Rees, op cit, p21.
7. ibid, p26.
8. More details relevant to several of these recommendations are provided in Chapter 31.
9. Rees. Op cit, p25.
10. Sale, op cit, p193.