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)
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.
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.
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.
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?
- What evidence/reports did it rely on?
- 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.
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
- 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.
- Bring mental health in line with criminal justice system rather than having harsher penalties
- Places onus on the treating team and Justice Health to justify the ongoing detention of a patient after a certain period
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
I.oAccepting possibility of consumer mistakes without devastating consequences
- II.oCurrently 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.
- III.oViolates 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)).
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.
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)
I.oBlanket prohibition on the publication of names: is this for the protection and privacy of the patient?
- II.oFunctions 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
I.oMore detailed reports after review, outlining why/how the decision was made and what evidence was relied on.
- Listing of cases on website:
I.oPrivacy of patients can be respected, while still allowing issues raised in cases to be easily accessible/publicly available.
- II.oThis will increase public confidence and trust in the MHRT as a quasi-judicial body
- III.oAccountability 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.
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).