The Draft Mental Health Bill: Cutting Corners
by Fleur Beaupert
The NSW Department of Health’s
consultation process for the review of the Mental Health
Act 1990 (NSW) started in October 2003 and the draft exposure
version of the Mental Health Bill 2006 has been released. Some
of the proposed reforms risk weakening rights protections in
the Act. CCL has made recommendations against these reforms
in its submission
on the Bill.
undermining due process and the role of the Mental Health Review
Tribunal
The Mental Health Act 1990 (NSW) (the Act) sets out the circumstances
in which individuals can be forced to receive care and treatment
against their will, either in hospital or the community. Review
by the NSW Mental Health Review Tribunal (MHRT) is an important
safeguard against arbitrary restriction of an individual’s
freedom under the Act.
If the Mental Health Bill 2006 (the Bill) is enacted in its
current form, critical procedural protections, such as an individual’s
right to appear at an MHRT hearing, be represented at a hearing,
and have access to their medical files prior to a hearing,
will be removed from the Act. Instead, the Minister for Health
will have the final say about whether or not these due process
rights are granted. These rules will be contained in regulations,
which are subject to change by the Minister.
Fundamental safeguards, such as the right to appear at hearings,
to be represented and to access medical files prior to a hearing,
should be given permanence in the Act itself, and not left
for the Minister to cut and paste in and out of regulations.
Another change CCL argues against is the Bill’s undermining
of the multi-disciplinary approach to MHRT decision-making.
Currently MHRT panels always consist of a legal member, a psychiatrist
member and a community member (someone with other suitable skills
such as a social worker, psychologist, or consumer). This multi-disciplinary
approach means that the MHRT is better equipped to competently
assess the combination of legal, medical and social issues that
arise for consideration during hearings.
Although the Bill does not rule out multi-disciplinary MHRT
decision-making, it would allow 1 legal member sitting alone
to exercise functions of the MHRT. The final decision on this
point is again left for the Minister to include in regulations.
The circumstances in which 1 legal member can exercise functions
of the MHRT should be spelled out in the Act.
appointment and tenure of Mental Health Review Tribunal members
MHRT members are currently appointed by the Minister for Health
and have no security of tenure. The Bill does not change this.
While these issues were not raised in the Discussion Papers
and Report produced in the review of the Act, CCL believes
they demand debate.
The MHRT makes decisions affecting people’s liberty,
and it is for practical purposes the final arbiter for most
people subject to compulsory treatment under the Act. The MHRT’s
functions thus have a distinctly judicial character compared
to some other administrative tribunals. Security of tenure
is an important way of ensuring judges make independent decisions,
without fear of removal at the whim of the Executive. CCL believes
that the Act should ensure that the appointment of MHRT members
is for a set minimum length such as 3 years as, as is the case
for the Guardianship Tribunal.
CCL also believes that members should be appointed by the Governor
and/or Attorney-General. The problem with the Minister
for Health appointing members is that the MHRT is reviewing decisions
of the Department of Health. It is not appropriate for the
person appointing MHRT members to have this kind of direct
stake in the outcomes of MHRT decisions. Such appointments
mean that there is an inherent risk of bias in both the selection
process and the MHRT decision-making process.
‘primary carers’: extra protections needed
Much of the publicity about the review focused on the need
to facilitate the involvement of people who act in caregiving
roles for mental health service users, who often find themselves
shut out when trying to provide care and support. The proposed
solution in the Bill is the new role of ‘primary carer’.
An individual’s ‘primary carer’ has a number
of entitlements to be given information under the Bill, and
mental health services are to attempt to include the primary
carer in treatment planning.
CCL believes extra protections are called for to better protect
the privacy and autonomy of mental health service users,
increase accountability and decrease uncertainty about
how the primary
carer provisions are to be applied.
conclusion: responsible reform
The purposes of mental health legislation are twofold:
to protect our civil liberties and ensure that we receive
appropriate
care and treatment when we come into contact with the
mental health system. We should carefully scrutinise proposed
reforms to make sure they support the realisation of
these
goals.
Mental
health service users already face numerous barriers
when trying to access justice and appropriate treatment.
There
is no excuse
for cutting corners.
Submissions closed on 3 November. The NSW Department of Health
Discussion Papers can be accessed at http://www.health.nsw.gov.au/legal/actsreview.html#mental
Date: 6 November 2006
|
