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Michael Riley

Appalling Outcome Report: Rehospitalised - 16th November 2016

Overview

The case of Michael Riley illustrates how the mental health system consistently fails to protect the rights of individuals whose behaviour is perceived as indicative of mental illness. In particular, it sheds light on how interpretations of section 14 of the Mental Health Act 2007 (NSW),1 which stipulates the definition of ‘mentally ill’, are often unsubstantiated by tangible evidence. This results in vague and imprecise outcomes. Mr Riley’s case also demonstrates how the mental health system favours immediate medication-based solutions, as opposed to social support mechanisms. Mental health institutions employ forced medication as a simple ‘fix’ rather than holistic long-term rehabilitation via support systems. In fact, as Mr Riley’s Designated Caregiver, Justice Action was not notified of his forced hospitalisation. The Mental Health Act is designed to protect individuals perceived to have a mental illness.2 Overall, Mr Riley’s situation highlights that mental health institutions show little respect for these safeguards for civil liberties.

Michael Riley was diagnosed with Schizoaffective disorder in early 2000. Since then, he has been admitted to mental health units on more than 17 occasions. Notably, there is clear agreement amongst health care professionals and family alike, that Mr Riley has never harmed anyone, nor does he pose a threat. Mr Riley lives with his mother, sister and brother-in-law. He also has a seven-year-old daughter called Anna. He has a mixed relationship with his family, who have frequently called the police and ambulance services when he has displayed behaviour indicative of mental illness. Mr Riley has a degree in Economics and Political Science from the University of Sydney. Mr Riley was completing his honours thesis when he was reported as having a mental breakdown.


Admission to Blue Mountains Mental Health Unit 2 November 2016

Mr Riley was admitted to the Blue Mountains District Anzac Memorial Hospital as an involuntary patient on 2nd November 2016, following a visit by Community Mental Health and police to his home. Mr Riley’s family had raised concerns regarding his mental health, having observed him speaking to the television and himself, fixating on news regarding the conflict in Syria, and displaying severe agitation. However, Justice Action, who is a Designated Carer for Mr Riley (as per section 71(c)),3 was not initially contacted about his hospitalisation. This is indicative of the mental health system’s immediate employment of force, as opposed to utilising social support mechanisms.


Arrangement of the MHRT hearing

An MHRT hearing overseen by Mr John Hislop was held on 16th November 2016, at the head office in Gladesville. The purpose of the hearing was to determine whether Mr Riley is mentally ill and whether he would be required to remain as an involuntary patient. Mr Riley attended the hearing via video from the Blue Mountains Mental Health facility.

The MHRT initially sought to exclude Justice Action from the hearing on the basis that the proceedings in Gladesville were not open to the public and subsequently Justice Action would need to attend in the Blue Mountains with Mr Riley. Nevertheless, Justice Action’s attendance at Gladesville was eventually accepted. Additionally, Justice Action was originally denied access to the documents that were to be brought against Mr Riley on the basis that Justice Action was not considered formal legal representation. However, following email communications with Rodney Brabin (Registrar for the MHRT) and consideration by the tribunal, Justice Action was given access to the documents and permission to represent Mr Riley.

Mr Riley wished to be discharged from the mental health facility without a Community Treatment Order (CTO). A Community Treatment Order is a legal order prepared by the Mental Health Review Tribunal or by a Magistrate.4 This order sets out the terms under which a person must accept medication as well as rehabilitation, counselling, supervision, and other services.5

Mr Riley believed that, given he had no criminal record and that there was no actual evidence to indicate he was a threat to himself or others, there were no grounds for him to be involuntarily admitted to the mental health facility.

Although the decision made by the MHRT in relation to Mr Riley was most likely able to be appealed, if he were ultimately discharged from the hospital, negotiations regarding the situation with his family and living arrangements would still be required.


Evidence given at the MHRT Hearing 16 November 2016

Dr Yvonne Djurovic presented a medical report during the tribunal. Dr Djurovic acknowledged Mr Riley’s diagnosis of Schizoaffective disorder in 2000. As mentioned above however, Mr Riley does not accept this diagnosis. The report further detailed that Mr Riley had not been taking his prescribed medication for three to four months and had subsequently suffered a relapse of psychosis. Dr Djurovic reported that Mr Riley was irritable and paranoid on admission, and that he wishes to live in China or Russia to escape persecution. It was reported that Mr Riley suffers from delusions and has been has been very vocal in regards to political issues, particularly the recent election in the United States.

Significantly, Dr Djurovic noted that Mr Riley was in fact at risk from suffering injury from other patients and as a result, was moved to a closed ward for his own protection. Dr Djurovic also established that according to Mr Riley’s family, he ‘had never harmed anyone’ and did not pose a danger to himself.

Dr Djurovic suggested that an appropriate course of action for Mr Riley would be to continue hospital treatment for up to four weeks. Following this, a discharge plan involving a CTO and a community-based mental state-monitoring program could be implemented.

A form completed by Dr Pauline Byrne as to the mental state of Mr Riley was also given in evidence. The comments on the form completed by Dr Byrne found Mr Riley to be a mentally ill person, evidenced by his pressured speech and paranoid delusions. Additionally, a Progress Note completed by Dr Bridget Regaily reported that Mr Riley had been agitated to the point of screaming, was talking to the television, referenced the Syrian War and wished to move to China. Dr Regaily also concluded that Mr Riley was mentally ill.

Other Mental Health progress reports demonstrated that Mr Riley’s cooperation was improving, and that he had become more settled and less agitated, despite his delusions persisting.


Arguments made for Mr Riley at the Hearing

It was argued on Mr Riley’s behalf that his delusions regarding political events did not indicate a mental illness or disorder, in accordance with section 16(1)(a).6 Mr Riley understands that an individual is entitled to their own religious and political beliefs and that expressions of, or failures to express a certain political or religious belief are entirely insufficient to indicate that a person has a mental illness (according to 16(1)(a)). Moreover, despite the fact that anti-social behaviour was used to justify Mr Riley’s mental illness, it was argued that section 16(1)(l) deems anti-social behaviour as inconclusive in indicating mental illness.7

Furthermore, it was argued that Mr Riley has never exhibited violence towards himself or other people and would thus not satisfy the criteria in sections 14(1)(a) or 14(1)(b) for requiring ‘care, treatment or control’ owing to mental illness.8

Notably, Dr Djurovic’s report indicated that Mr Riley was in fact at risk of harm from other patients whilst being held at the hospital. This raised questions as to the hospital’s duty of care towards Mr Riley and whether adequate steps had been taken at a management level to ensure appropriate treatment of patients.

It was similarly argued that Mr Riley’s social support network as well as the requirements in section 14(2) regarding ‘the continuing condition of the person’, failed to be considered in the decision to retain him as an involuntary patient.9 Given the constant lack of success with previous interventions, it is unlikely that admission to hospital would produce positive results in Mr Riley’s situation. As such, it may be more beneficial to Mr Riley’s ‘continuing condition’ that he be able to utilise social support. Moreover, in its findings, the tribunal failed to consider Dr Djurovic’s acknowledgement of Mr Riley’s potential for improvement.

Finally, in Mr Riley’s case, section 68 of the Mental Health Act was not observed.10 This section requires people with a mental illness receive care in ‘the least restrictive environment’ possible.11 This was breached when Mr Riley was placed in a closed ward. This action seemed unnecessary and grossly restrictive given that the reason for doing so was for Mr Riley’s protection rather than the prevention of harm to other patients. Similarly, section 68(f) states ‘any restriction on the liberty of patients…is to be kept to the minimum necessary in the circumstances.’ In holding Mr Riley within a closed ward, no consideration was given to holding him with an environment that may have been more appropriate to his treatment, such as one that utilises his support system.

The Tribunal’s Finding

The tribunal held that Mr Riley would remain as an involuntary patient, undergoing review in four weeks on 14 December 2016.

Mr Hislop provided no findings of facts and did not outline the evidence he examined to support his decision. Mr Hislop merely stated that the requirements of the Mental Health Act were proven. Mr Riley was supplied with an incomprehensible written document, which Justice Action believes outlined more detailed reasons for the decision of the tribunal.

Mr Riley’s Perspective on the Hearing

Mr Riley believes that the mental health system does not strive to achieve justice for people perceived to have a mental illness. He asserts that he did not have a chance of being discharged at the tribunal, as he believes that the tribunal sought to avoid setting a precedent that would allow other individuals, in similar situations to Mr Riley, to be released. Mr Riley does not want a CTO and believes he does not require one owing to no prior history of violence, or any experience with violence-related activities or sports. Mr Riley believes the only way he will ever be discharged is if he agrees to take medication and accepts that he is mentally ill, despite the fact that he does not believe this to be true. Mr Riley expresses that he does not believe that medication is an appropriate solution and has conveyed frustration towards the focus placed on medication, as opposed to ensuring access to his support system or stable accommodation.

Mr Riley’s family attended the tribunal with him at the Blue Mountains hospital and attended via video. Mr Riley states that his family did not speak with him afterwards and left immediately following the tribunal.

Justice Action’s Perspective on the Hearing

Mr Riley was treated with respect and decorum at the hearing. Nonetheless Justice Action was appalled that the tribunal made no finding of fact to support the ultimate declaration of Mr Riley as mentally ill under the Mental Health Act. The evidence was clear that there was no justification for such a verdict. The tribunal had a legal obligation to apply the act correctly and to support this application with fact. This duty went unsatisfied. Justice Action is yet to see a fair outcome for Michael Riley but continues to seek a fair result.

 

Bibliography

1 Mental Health Act 2007 (NSW) s 14.

2 Ibid s 3.

3 Ibid s 71(c).

4 Mental Health Review Tribunal, Community Treatment Orders (2013) NSW Governemnt <http://www.mhrt.nsw.gov.au/civil-patients/community-treatment-orders.html>

5 Ibid.

6 Mental Health Act 2007 (NSW).

7 Ibid.

8 Ibid.

Mental Health Act 2007 (NSW).

10 Ibid.

11 Ibid.

The States Assault of the Mentally Ill- The Case of Michael Riley

About Michael 

Community Treatment Orders 

Right to Identity- s162 Application to Publish Name 

Media

 

Michael Riley is warm, bright, gentle giant in his late 30’s. He is currently employed at a union and is the loving father of a four-and-a-half year old daughter who starts school this year. While Michael lives, works and is socially engaged in the community, he is subject to a Community Treatment Order (CTO) which has been consistently renewed for 14 years. Michael does not agree with nor does he consent to this order. His diagnosis is one of Schizoaffective Disorder - a diagnosis he rejects.


Michael does not have a criminal record and has no history of violent behaviour. His only contact with the police has been sparked by his CTO on the isolated occasions on which he is essentially arrested on the grounds that he is a danger to his own reputation. At times, these arrests have been carried out with such force that Michael has required hospital treatment (see ‘About Michael’ for the full story). Despite his gentle nature, Michael’s experience at the hands of the police and mental health authorities has resulted in him feeling as though he is being treated like a criminal. This is a common experience for people with mental illness and an ongoing concern for Justice Action. 

Michael’s case highlights how vulnerable a person diagnosed with a mental illness is at the hands of mental health authorities. The broad powers of the CTO take away his right to decide what treatment he wants, as well as making his liberty conditional on compliance with the terms of the CTO (s 57). In addition, a mental health team is able to medicate Michael without his consent (s 57). The power vested in mental health staff to forcibly remove Michael from the community for a breach of the CTO, transport him to a declared mental health facility (s 58) and keep him there against his will (s 61) is alarming. Perhaps most disturbing, though, is the ability of the police to intervene in Michael’s life despite the absence of any criminality.

Any resistance displayed by Michael to the terms of the CTO or the treatment forced upon him is seen as a lack of capacity or insight into what is in his best interests. Such objections are taken as confirmation of his diagnosis and act to reinforce the initial justification for the use of force. The CTO essentially takes away Michael’s ability to make his own decisions regarding his treatment and his life while a failure to comply results in his liberty being taken away.

Outraged at his brutalisation at the hands of the mental health authorities and the systemic stripping away of his fundamental human rights, Michael is prepared to talk about his experiences in order to raise awareness of the problems he has encountered in the mental health system. After years of indignity, Michaels’ frustration finally came to a head in November 2013 when his CTO was again renewed, despite the presentation of an advanced directive that had been put together to provide Michael with a community-based, supportive and therapeutic alternative to the strict and overly intrusive CTO.

He is able to clearly and articulately state his resistance to the abuses of power he has experienced. But even this choice could not be made without a battle. Due to the structure of the Mental Health Act, Michael was required to ask the Mental Health Review Tribunal for consent to use his own name in discussing his experiences – a fundamental right that is taken away under the legislation (s 68). The blanket prohibition imposed by the Act is supposedly in place for the protection of the patient who is assumed to be incapable of fully comprehending the damage they may cause themselves by associating their name with a mental illness in the public sphere. In reality, however, this prohibition, which also applies to Tribunal members, functions to reduce the accountability and transparency of the MHRT’s proceedings (see Right to Identity – s 162 Application for more information).

It is this lack of accountability and transparency that Michael is most passionate about exposing and hopefully reforming. He and Justice Action feel that unless there is a significant change in this area, people who are already at a social and often financial disadvantage will continue to have their rights and autonomy taken away from them with little avenue for effective recourse. People who are diagnosed with a mental illness require support and deserve to have their dignity maintained. Paternalistic, interventionist and overbearing systems are more likely to damage their mental state than help to nurture or repair it.

 

The States Assault of the Mentally Ill- The Case of Michael Riley

 

 

About Michael 

Community Treatment Orders 

Report of Meeting 20.1.14 MHRT and JUSTICE ACTION

Media

  

Michael Riley is warm, bright, gentle giant in his late 30’s. He is currently employed at a union and is the loving father of a four-and-a-half year old daughter who starts school this year. While Michael lives, works and is socially engaged in the community, he is subject to a Community Treatment Order (CTO) which has been consistently renewed for 14 years. Michael does not agree with nor does he consent to this order. His diagnosis is one of Schizoaffective Disorder - a diagnosis he rejects.


Michael does not have a criminal record and has no history of violent behaviour. His only contact with the police has been sparked by his CTO on the isolated occasions on which he is essentially arrested on the grounds that he is a danger to his own reputation. At times, these arrests have been carried out with such force that Michael has required hospital treatment (see ‘About Michael’ for the full story). Despite his gentle nature, Michael’s experience at the hands of the police and mental health authorities has resulted in him feeling as though he is being treated like a criminal. This is a common experience for people with mental illness and an ongoing concern for Justice Action. 

 

Michael’s case highlights how vulnerable a person diagnosed with a mental illness is at the hands of mental health authorities. The broad powers of the CTO take away his right to decide what treatment he wants, as well as making his liberty conditional on compliance with the terms of the CTO (s 57). In addition, a mental health team is able to medicate Michael without his consent (s 57). The power vested in mental health staff to forcibly remove Michael from the community for a breach of the CTO, transport him to a declared mental health facility (s 58) and keep him there against his will (s 61) is alarming. Perhaps most disturbing, though, is the ability of the police to intervene in Michael’s life despite the absence of any criminality.

 

Any resistance displayed by Michael to the terms of the CTO or the treatment forced upon him is seen as a lack of capacity or insight into what is in his best interests. Such objections are taken as confirmation of his diagnosis and act to reinforce the initial justification for the use of force. The CTO essentially takes away Michael’s ability to make his own decisions regarding his treatment and his life while a failure to comply results in his liberty being taken away.

 

Outraged at his brutalisation at the hands of the mental health authorities and the systemic stripping away of his fundamental human rights, Michael is prepared to talk about his experiences in order to raise awareness of the problems he has encountered in the mental health system. After years of indignity, Michaels’ frustration finally came to a head in November 2013 when his CTO was again renewed, despite the presentation of an advanced directive that had been put together to provide Michael with a community-based, supportive and therapeutic alternative to the strict and overly intrusive CTO.

 

He is able to clearly and articulately state his resistance to the abuses of power he has experienced. But even this choice could not be made without a battle. Due to the structure of the Mental Health Act, Michael was required to ask the Mental Health Review Tribunal for consent to use his own name in discussing his experiences – a fundamental right that is taken away under the legislation (s 68). The blanket prohibition imposed by the Act is supposedly in place for the protection of the patient who is assumed to be incapable of fully comprehending the damage they may cause themselves by associating their name with a mental illness in the public sphere. In reality, however, this prohibition, which also applies to Tribunal members, functions to reduce the accountability and transparency of the MHRT’s proceedings (see Right to Identity – s 162 Application for more information).

 

It is this lack of accountability and transparency that Michael is most passionate about exposing and hopefully reforming. He and Justice Action feel that unless there is a significant change in this area, people who are already at a social and often financial disadvantage will continue to have their rights and autonomy taken away from them with little avenue for effective recourse. People who are diagnosed with a mental illness require support and deserve to have their dignity maintained. Paternalistic, interventionist and overbearing systems are more likely to damage their mental state than help to nurture or repair it.

About Michael

HISTORY 

Michael has long been able to manage his own condition, and his own community had no idea that he was classified as mentally ill. It was only after a call by his family to the police out of concern for his wellbeing that he came to the attention of the mental health system. Although they may have believed that they were acting in his best interests, by doing so Michael’s independence and right to make decisions regarding his own wellbeing have been stripped away.

On two separate occasions, quite recently, police arrested Michael for being a “danger to his reputation”. They came to the villa where he is living, handcuffed him and in dragging him out in front of neighbours, using such force that Michael suffered head wounds requiring four staples to close the wound when he was treated at Westmead Hospital. On the second occasion in 2012 they did so in front of a coffee shop he frequents, where neighbours, friends and acquaintances witnessed him being handcuffed and thrown in the back of a police paddy wagon. Until this embarrassment, none of those around him were aware of any mental health issues.

This criminalisation of those who are mentally ill should not be tolerated. The stigma that surrounds mentally ill people has justified abuse of authority and the mistreatment of those who should be supported and protected. Furthermore, regardless of whatever the allegations are or who makes them, the burden of proof lies on Michael to disprove accusations of mental instability. His case throws up in the contradiction of care and coercion.

COMMUNITY TREATMENT ORDER (CTO)

The broad powers of the CTO take away his right to decide what treatment he wants, as well as making his liberty conditional on compliance with the terms of the CTO (s 57). In addition, a mental health team is able to medicate Michael without his consent (s 57). The power vested in mental health staff to forcibly remove Michael from the community for a breach of the CTO, transport him to a declared mental health facility (s 58) and keep him there against his will (s 61) is alarming. Perhaps most disturbing, though, is the ability of the police to intervene in Michael’s life despite the absence of any criminality.

Any resistance displayed by Michael to the terms of the CTO or the treatment forced upon him is seen as a lack of capacity or insight into what is in his best interests. Such objections are taken as confirmation of his diagnosis and act to reinforce the initial justification for the use of force. The CTO essentially takes away Michael’s ability to make his own decisions regarding his treatment and his life while a failure to comply results in his liberty being taken away.

Outraged at his brutalisation at the hands of the mental health authorities and the systemic stripping away of his fundamental human rights, Michael is prepared to talk about his experiences in order to raise awareness of the problems he has encountered in the mental health system. After years of indignity, Michaels’ frustration finally came to a head in November 2013 when his CTO was again renewed, despite the presentation of an advanced directive that had been put together to provide Michael with a community-based, supportive and therapeutic alternative to the strict and overly intrusive CTO.

He is able to clearly and articulately state his resistance to the abuses of power he has experienced. But even this choice could not be made without a battle. Due to the structure of the Mental Health Act, Michael was required to ask the Mental Health Review Tribunal for consent to use his own name in discussing his experiences – a fundamental right that is taken away under the legislation (s 68). The blanket prohibition imposed by the Act is supposedly in place for the protection of the patient who is assumed to be incapable of fully comprehending the damage they may cause themselves by associating their name with a mental illness in the public sphere. In reality, however, this prohibition, which also applies to Tribunal members, functions to reduce the accountability and transparency of the MHRT’s proceedings (see Right to Identity – s 162 Application for more information).

It is this lack of accountability and transparency that Michael is most passionate about exposing and hopefully reforming. He and Justice Action feel that unless there is a significant change in this area, people who are already at a social and often financial disadvantage will continue to have their rights and autonomy taken away from them with little avenue for effective recourse. People who are diagnosed with a mental illness require support and deserve to have their dignity maintained. Paternalistic, interventionist and overbearing systems are more likely to damage their mental state than help to nurture or repair it.

RIGHT TO IDENTITY 

The Mental Health Act 2007 (NSW) s 162 establishes a blanket prohibition on publishing or broadcasting the names of people participating or involved in any way in hearings before the Mental Health Review Tribunal (MHRT), allegedly for the protection of the person to whom the proceedings relate, in this case Michael.

Michael was unhappy with previous decisions of the Tribunal including its November 2013 decision to place him under a Community Treatment Order, sought permission to publicly criticise the decision on the Justice Action website and elsewhere. Part of the contention in allowing Michael to use his name was the determination of a consultant psychiatrist that he could not appreciate the adverse effects on his reputation and future employment prospects of publicising his name. However, Michael successfully argued that not allowing him to publish his name would have a negative impact on his mental health. The Tribunal agreed stating that any negative impact to his reputation would be outweighed by the impact of not allowing him to publish.

Michael sought to publish his name in order to de-stigmatise mental illness, increase public support and to regain his basic civil liberties as recognised in the United Nations Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care (1991). These include treating people with a mental illness with humanity and respect for their dignity (principle 1), the right to be treated in the least restrictive environment and with the least restrictive or intrusive treatment appropriate with a view towards preserving and enhancing personal autonomy (principle 9) and a prohibition on treatment without consent, except in very limited circumstances (principle 11).

On 15 January 2014 in the MHRT, Michael won the right to publish and broadcast his own name in relation to two hearings of which he was the subject. 

See the detailed report here.

The state’s assault on the mentally ill: The case of Michael Riley

 

 

About Michael 

Community Treatment Orders 

Report of Meeting 20.1.14 MHRT and JUSTICE ACTION

Media

 

Michael Riley is warm, bright, gentle giant in his late 30’s. He is currently employed at a union and is the loving father of a four-and-a-half year old daughter who starts school this year. While Michael lives, works and is socially engaged in the community, he is subject to a Community Treatment Order (CTO) which has been consistently renewed for 14 years. Michael does not agree with nor does he consent to this order. His diagnosis is one of Schizoaffective Disorder - a diagnosis he rejects. 

Read more

About Michael

Michael Riley is a gentle and well-educated man in his late 30s who has been taken against his will in and out of state mental health systems and forcibly medicated since February 2000. Since then, his rights have been constantly abused and the authorities treat him like a criminal despite proclaiming that he isn’t. Michael has no criminal record and has never harmed another person or himself in his life, yet he is being treated like he has supposedly breached the Mental Health Act. In his interview with Justice Action, Michael shares his experience at the hands of the mental health system. His size at 6'3" and his unusual beliefs have made him a easy target.


With an undergraduate degree in Economics from the University of Sydney, Michael is a friendly, highly intelligent and opinionated man. He has family and friends for whom he cares very much, including a young daughter. Justice Action has a long history with Michael Riley going back a number of years over several Tribunal Hearings.

He accepts that the state defines him as a mentally ill person, however Michael rejects this classification and the diagnosis of Schizoaffective Disorder which dates back over 13 years. He accepts that his behaviour may sometimes be hard for his family to live with, but asserts that it is his right to have his own thoughts and his entitlement to be different than others.

The main concern here is the state’s treatment of those whom they define as mentally ill and whom they deem as a danger to themselves or others. Michael has long been able to manage his own condition, and his own community had no idea that he was classified as mentally ill. It was only after a call by his family to the police out of concern for his well being that he came to the attention of the mental health system. Although they may have believed they were acting in his best interests, by doing so Michael’s independence and right to make decisions regarding his own wellbeing have been stripped away.

On two separate occasions, quite recently, police arrested Michael for being a "danger to his reputation". They came to the villa where he is living, handcuffed him and in dragging him out in front of neighbours, using such force that Michael suffered head wounds requiring four staples to close the wound when he was treated at Westmead Hospital. On the second occasion in 2012 they did so in front of a coffee shop he frequents, where neighbours, friends and acquaintances were all witnessed him being handcuffed and thrown into the back of a police paddy wagon. Until this embarrassment none of those around him were aware of any mental health issues.

This criminalisation of those who are mentally ill should not be tolerated. The stigma that surrounds mentally ill people has justified abuse of authority and the mistreatment of those who should be supported and protected. Furthermore, regardless of whatever the allegations are or who makes them, the burden of proof lies on Michael to disprove accusations of mental instability. His case throws up in the contradiction of care and coercion.

 

 

Report of Meeting 20.1.14 MHRT and JUSTICE ACTION

We look to the issues raised by Dan Howard at the CJC forum “Bedlam...The Way Out” in Parliament House on 19/11/13 to give some direction to the agenda. We really wish to establish a working relationship that isn’t confrontational, but becomes trusting and constructive. As suggested orally at the CJC Forum, most of the issues we need to present publicly and in the courts could be the subject of discussion and negotiation. 

Our role as a change agent has been widely acknowledged and appreciated. We just need results for the benefit of our and the general community.

 

The Mental Health Review Tribunal, constituted under Ch. 6 of the Mental Health Act 2007 (NSW), has functions imposed on it by both its constituting Act and the Mental Health (Forensic Provisions) Act 1990 (NSW). Its jurisdiction covers the following:

  • Considering the disposition and release of persons acquitted of crimes by reason of mental illness;
  • Determining matters concerning persons found unfit to be tried and prisoners transferred to a mental health facility for treatment;
  • Reviewing the cases of detained patients (both civil and forensic), and long-term voluntary psychiatric patients;
  • Hearing appeals against an authorised medical officer’s refusal to discharge a patient;
  • Making, varying and revoking community treatment orders;
  • Determining applications for certain treatments and surgery;
  • and making orders for financial management where people are unable to manage their own financial affairs.

 

Instrumental in the carrying out of its duties are the objectives of the Mental Health Act 2007 and UN principles for the protection of persons with mental illness and the improvement of mental health care, which outline the civil and human rights to be afforded to all mental health consumers, including but not limited to:

 

  • treating a person in the least restrictive environment (s 68(a))
  • assisting people to live in the community (s 68(c))
  • prescription of medicine for diagnostic/therapeutic needs, not as punishment or for the convenience of others (s68(d))
  • information sharing with patient and treatment alternatives provided (s 68(e))
  • minimum necessary interference with liberty, rights, dignity and self-respect (s 68(f))
  • involvement of person in development of treatment plans (s68 (h))
  • procedural safeguards so that hearings are fair (principle 18)

 

1. Choice

Choice is one of the key features of the legislation, s 3 objectives state the Mental Health Act 2007 (NSW) is intended to facilitate the involvement of affected persons in decisions involving appropriate care, treatment and control (s 3(e)) and is again reiterated in s 68 (h).

  • Representation for the consumer in Review hearings. Dan said that the mental health advocacy service does a “terrific job” in representing people. However, he also said that it found it “hard to cover all the ground”. Consumers express bitter unhappiness with the representation they currently receive.

 

Response:

Justice Action proposed to discuss and negotiate with the Mental Health Advocacy Service (MHAS) for ways in which the service could be improved. A discussion followed about the possible use of certified peer specialists (CPS). The MHRT agreed that peer support is very valuable and can assist recovery of the patient, however they were unable to mandate or require it. The MHRT emphasised they were happy for a certified peer specialist to support and advocate for the consumer, but it was their practice to provide reports to solicitors who would discuss it with the consumer. If the MHAS needed to improve on that the MHRT agreed to provide feedback to MHAS. The MHRT agreed that CPS could assist in interpreting for the consumer the reports as well as the determinations.

 

2. Independent psychiatric support

Dan expressed his desire for “it to happen a bit more than it does now.” Consumers in the forensic and involuntary health areas generally feel imposed on rather than therapeutically assisted. 


Response:

The MHRT stated that the law provides for a patient to be detained until they are well enough and this is something for the State to decide with care ‘ordinarily provided by the treating team, by Justice Health’. All participants agreed at this point that there needed to be a discussion around more consumer involvement and patient input. The MHRT agreed it had the authority to require the hospital to negotiate with and listen to the patient regarding treatment, but whether it was exercised in a particular case is a discretionary matter.

Justice Action emphasised that in line with recovery principles there should be a reduction in seclusion/restraint. The MHRT responded that it was a matter for the treating teams to change their approach to adopt recovery principles; that the MHRT had to work within its jurisdictional limits, but that it could certainly advocate in meetings with treating teams for a shift in approach. The MHRT stated an ‘independent’ opinion can be difficult to obtain, but sometimes the MHRT have requested a second opinion and the MHAS is also able to do this for clients. The MHRT made it clear that they do not have the funds to mandate second opinions, however. Justice Action proposed that certified peer specialists may assist to fill in the gaps and provide social support.

 

3. Access to Reports - Reviews

  • Access to reports: policy requires reports submitted to MHRT 2 weeks prior to hearing. In practice, reports submitted at the hearing. Consumers should have sufficient time to read reports, submit proposals/contradictory evidence; procedural fairness rules should be followed.

Response:

The MHRT outlined the practice of the MHRT to provide reports to legal representatives and not to consumers or lay representatives. This was because could be detrimental to the well-being of a consumer to receive sensitive information about their own case and it was not ‘appropriate’ or ‘safe’ to provide reports directly to the patient sometimes. The MHRT agreed that consumers should know ‘in broad terms’ what is in the reports, however it was not for the MHRT to make a call on providing a report directly to the patient because of clinical considerations. Justice Action agreed to contact Justice Health to enquire about the criteria for not providing a report to a consumer.

The tribunal agreed that the consumer should have time to digest the report before the hearing and submit evidence in response, but stated it was not for them to facilitate that beyond giving it to the solicitor as soon as they get it. They conceded that reports came too late from the hospital and sometimes go to legal representatives a couple of days before the hearing or even the day of the hearing; the MHRT tried to pass those reports on as quickly as possible but often did not get the reports early enough. However, it could be adjourned if necessary.

  • Detailed determination report post review:


    Why did the MHRT make its determination?

    1. What evidence/reports did it rely on?
    2. What does the patient need to improve on for next review?

     

    This would encourage the MHRT to act independently of Justice Health and treatment teams, rather than rubber-stamping their decisions.

    • Tribunal to read nurses daily reports: nurses have more interaction with patients. For the Tribunal to make an accurate determination all evidence should be considered and the consumer should be able to point at matters.

 

 Response:

The MHRT assured Justice Action that its practices regarding determination reports had changed in the last 6 months. One of the changes was that ‘reasons for decisions’ were typed, quite detailed. Some reasons included sub-headings including current mental state, physical issues, current risk of harm to themselves or others, likelihood of deterioration in the current circumstances of detention, situation since last review, plans for future and anything else notable from the decision. All reasons for decision are now provided to the consumer’s lawyer and the treating team, and where relevant also go to the disability services branch of the prison and the classifications division of the prison. This is the case even when there has been no change to the MHRT order. The idea was that it captured the consumer’s plans, the treating team’s plans and anything else that should be considered as well.

 

4. Recovery principles



Dan said: “In essence, we have lost our way with the medicalisation of people’s lives…. We try to be better and the recovery principles help. Clinicians on the Tribunal are hoping to encourage treating teams and clinicians to embrace these ideas where possible." We would like to talk about what that might be, especially around choices with treatment. Annual report 2012/13 makes reference to the importance of recovery principles in promoting hope, self management, self determination and the MHRT’s commitment to understanding mental health consumers’ needs and changing policies and procedures in response to those needs (p10).

    • Adoption of limiting term principle: see the NSWLRC Report 138 Exec Summary 1.27 page X1X

      1. A limiting term for NGMI consumers is “fair”, (see rpt) would promote hope, encourage self management, and give a sense of progress to patients.could be adopted retrospectively by the Tribunal, on the guidance of the MHAS without a need for legislation.
      2. Bring mental health in line with criminal justice system rather than having harsher penalties
      3. Places onus on the treating team and Justice Health to justify the ongoing detention of a patient after a certain period

 

Response:

The issue of adopting a limiting term principle raised by the NSWLRC was dealt with quite quickly, as MHRT stated that without a change in the legislation it would be impossible for the Tribunal to adopt this as a practice. It was suggested Justice Action could campaign to the people who might be able to amend the legislation.

 

    • Fair decisions re patient mistakes

      1. Accepting possibility of consumer mistakes without devastating consequences
      2. Currently consumers are forced to start over if a problem arises, sent back to acute ward, for example. Complete contradiction of recovery principles of promoting hope.
      3. Violates s 68 principles regarding treatment in ‘least restrictive environment’ (s 68(a)), minimum restrictions on patients’ liberty (s 68(f), the provision of care should be designed to assist people to live in the community (s 68(c)).

 

Response:

The discussion around recovery principles began with an outline of the procedures following a breach. The MHRT did not see a return to the Forensic Hospital as ‘punishment’ however Justice Action responded that it was a return to a higher security area. The MHRT accepted that recovery is not a linear process, that people get unwell, and that there was a preference for a patient to go to a civil hospital. However, she conceded that s 68 Breach of Orders for Release of the Mental Health (Forensic Provisions) Act 1990 (NSW) was perceived as a reprimand. The MHRT invited Justice Action to draw their attention to particular cases of concern.

The MHRT agreed there was a way to go before recovery principles were fully adopted. They stated it was a matter for the treating teams to change their approach to adopt recovery principles; that the MHRT had to work within its jurisdictional limits, but that it could certainly advocate in meetings with treating teams for a shift in approach.

 

5. Connections with peer groups

Dan talked about the need for better community resourcing and "connections with peer groups”. We would like to suggest ways in which that might occur. The development of consumer workers and certified peer specialists both from inside the hospitals and out to give others support is very important and cost effective.

Response:

See item (1) certified peer specialists.

6. Transparency with MHRT

 

This includes MHRT personnel, witnesses and procedures. We have encountered a tendency for the mental health area to regard itself as a whole as entitled to a veil of secrecy, whereas that culture is inimical to public service and the maintenance of expected standards of behaviour. 

 

  • Section 162 Mental Health Act 2007 (NSW)
    1. Blanket prohibition on the publication of names: is this for the protection and privacy of the patient?
    2. Functions to allow Tribunal members to avoid public scrutiny/criticism/be held accountable for their decisions, places less personal responsibility on the individual members of the Tribunal to justify their decisions.
    • Transparency of determination

More detailed reports after review, outlining why/how the decision was made and what evidence was relied on.

    • Listing of cases on website:
      1. Privacy of patients can be respected, while still allowing issues raised in cases to be easily accessible/publicly available.
      2. This will increase public confidence and trust in the MHRT as a quasi-judicial body
      3. Accountability levels should be similar to that of a court as the MHRT is likewise responsible for making determinations about the restriction of liberty of a human being.

 

Response:

The MHRT suggested the determination made last week in regards to a s 162 application in a particular case did not set a precedent for other cases. The MHRT said there was now a Practice Direction on the MHRT website about s 162 applications and MHRT gave a short explanation about the expansion of the website in line with trying to make its practices/procedures more transparent. Further, it was explained that the MHRT is providing anonymised versions of key cases or decisions available on their website. However, the MHRT stated it would be too resource intensive to provide a listing of all cases on their website.

For comments on transparency regarding determination reports, see item (3).

The state’s assault on the mentally ill: The case of Michael Riley


 

Michael Riley is a gentle and well-educated man in his late 30s who has been taken against his will in and out of state mental health systems and forcibly medicated since August 2009. Since then, his rights have been constantly abused and the authorities treat him like a criminal despite proclaiming that he isn’t. Michael has no criminal record and has never harmed another person or himself in his life, yet he is being treated like he has supposedly breached the Mental Health Act. In his interview with Justice Action, Michael shares his experience at the hands of the mental health system and what should be done so that one’s rights are protected and such abuses of authority no longer occur.

Read more

 

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