Mental Health and Rights
The NSWCCL engages with governments to influence mental health policy to better protect the civil
right to freedom and human right to health of people who have mental health problems.
Many people use mental health services at some point in their lives. Having a mental illness, or being suspected of having one, can make people vulnerable in a number of ways. Poorly resourced and
coordinated mental health services across Australia continue to compromise safety and wellbeing and
put lives in jeopardy. Mental health service users are at risk of being deprived of their civil rights where
it is felt their mental state prevents them from making reasonable decisions, such as about their health or finances.
Mental Health Treatment
The Mental Health Act 2007 (NSW) makes provision for mental health care and treatment, including situations where a person can be treated against their will by being made subject to compulsory treatment – forced hospitalisation or a community treatment order. According to the annual report of the Mental Health Review Tribunal, 15470 people were ‘scheduled’ or compulsorily admitted to hospital from 2009-2010 and 3590 of those people then placed under an initial order authorising ongoing detention for the purposes of providing treatment. 4772 people were placed under community treatment orders, which means that they were treated on a compulsory basis whilst living in the community for up to 12 months. These orders are frequently renewed and some people are subject to community treatment orders for many years.
It is crucial that service users are treated in the manner least restrictive of their freedom. Decision makers such as the Tribunal are always required to consider whether there is a less restrictive alternative to compulsory treatment that will adequately protect health and safety, as required by ss 12 and 68 of the Mental Health Act. It is also crucial that mental health services are well resourced and coordinated, both to ensure protection of the human right to health and so that people deprived of liberty pursuant to mental health legislation receive a level of support justifying such severe interference with their civil rights.
Changes to the Mental Health Act and initial reviews of compulsory admission
Recent changes to Mental Health Review Tribunal policies have impeded rights protection for people detained in hospital. An initial review of compulsory admission must be carried out ‘as soon as practicable’ after admission under s 27 of the Mental Health Act, and until 2010 these reviews occurred within a week. Initial reviews may now instead take place during the third or fourth week of a person’s detention and most are now carried out by video conference, whereas previously the decision maker travelled to the hospital and conducted the hearing in person.
NSWCCL’s position is that initial reviews should continue to be held within a week of admission and conducted in person. Prompt reviews of compulsory admission by an external decision maker are a fundamental measure to prevent arbitrary deprivation of liberty. Initial reviews should be fair, respectful and rigorous, which requires that the Tribunal and all in attendance can communicate effectively with each other. Conducting reviews by video conference distances participants from each other and frequently involves technical disruptions, making it more difficult for patients to contribute to the hearing and for the Tribunal to assess their condition and collect relevant additional information.
Read NSWCCL’s Letter to the Minister for Health on this issue.
Read more about the campaign against the Mental Health Act policy changes on the website of the Public Interest Advocacy Centre.
Community Treatment Orders
NSWCCL is opposed to community treatment orders, believing that they are an unacceptable infringement of individual freedom and that the benefits do not outweigh the disadvantages.
Community treatment orders are now accepted as a necessary alternative to detention in Australia and considered by many to be preferable to detention on the grounds that they are a less restrictive alternative. NSWCCL believes that they are a more restrictive form of compulsory treatment in that they extend compulsion into all aspects of a person’s life. The conditions of community treatment orders are often very strict: the person may be required to receive medication at a place far from their home at a time which may interfere with other commitments; they may have had to agree to live at a place which may not suit their social and work life; they can be compulsorily readmitted to hospital for ‘breaching’ an order.
Being under constant surveillance – feeling a prisoner whilst living in the community and going about one’s daily business – can be a severe stressor and exacerbate existing mental health problems. Many people are placed not just under one such order, but have their order renewed for many years. Research on community treatment orders has produced mixed results. It is not clear whether apparent successes of community treatment order regimes are due to the forced nature of treatment or the well resourced, coordinated and intensive mental health and support services in the jurisdictions in question.
Forensic patients and people with mental illnesses in the correctional system
Forensic patients are people found either not guilty by reason of mental illness, or unfit to be tried for an offence, and detained in a correctional or mental health facility. People found not guilty by reason of mental illness are generally released subject to conditions for a period before being unconditionally released. Whilst there is now a Statewide Forensic Mental Health Service which provides treatment to forensic patients and others in the correctional system who have a mental health problem, NSWCCL is concerned that some forensic patients are detained for longer, and subject to more restrictive conditions, than necessary.
Prolonged detention and control when not legally warranted is not only a civil rights abuse; it also hinders individual recovery and is a blow for the whole community because people can become institutionalised and find it more difficult to live independently and be productive members of the community when finally released.
The final report on the review of forensic mental health legislation in NSW was released in 2007. Prior to 2008, people found not guilty by reason of mental illness were still detained ‘at the governor’s pleasure’. The conditions of their detention and release were determined by a Minister rather than a judicial decision maker, taking into account recommendations made by the Mental Health Review Tribunal. The Tribunal now has the final say over the progress of patients through the forensic system, subject to Supreme Court appeal – a long overdue advance in protecting forensic patients’ rights.
Read NSWCCL’s Submission to the NSW Department of Health on the Review of the forensic provisions of the Mental Health Act 1990 & the Mental Health (Criminal Procedure) Act 1990
Review of the Mental Health Act 1990
The review of the Mental Health Act 1990 began in February 2006 and resulted in the Mental Health Act
2007. The new Act brought a number of changes including:
- extension of the maximum length of community treatment orders to 12 months;
- provision for downsized Tribunal panels consisting of only 1 legal member instead of a multidisciplinary panel of 3 when exercising functions, whereas previously the Tribunal was always required to be constituted by 3 members;
- introduction of principles of care and treatment into the Act; and
- introduction of a ‘primary carer’ role, carrying entitlements to receive certain information about service users’ care and treatment.
NSWCCL was opposed in particular to the extended maximum duration of community treatment orders
and provision for 1 member panels, which has the potential to weaken the beneficial multidisciplinary
model of the Tribunal.
Read NSWCCL’s Submission to the NSW Department of Health on the Mental Health Bill 2006
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