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Abstract
It is almost 30 years since the policy which underpins the current Victorian Mental Health Act was developed. The delivery of mental health services has changed dramatically over those years. As a result, the Act has been amended on numerous occasions, rendering it inaccessible for most people other than mental health law specialists. This article suggests that it may be time to legislate again, despite acknowledging that legislation tends to follow rather than precede change in mental health service delivery. The article traces the history of Victorian mental health legislation, from the opening of the first asylum in 1848, to the agitation for reform in the late 1970s which led to the passage of the current Act. Law reform is enhanced by clear identification of the values that underpin our laws. The new Victorian Charter of Human Rights and Responsibilities Act and the UN Convention on the Rights of Persons with Disabilities may assist in identifying important contemporary values which should inform new mental health laws. The following areas merit consideration when new mental health laws are considered: advance directives, the interaction between mental health and guardianship laws, information for family and friends of patients, the extended use of community treatment orders, the grounds for civil commitment, the jurisdiction of the Mental Health Review Board of Victoria, and the establishment of a commission to coordinate research and planning for the delivery of mental health services.
Acknowledgement
The author wishes to acknowledge the research assistance of Ms Claire Gallagher and to thank the current President of the Mental Health Review Board of Victoria, Mr John Lesser, for his comments on a draft of this paper.
Notes
1. I Paper presented at the Mental Health Review Board of Victoria's 20th Anniversary Conference, 6 December 2007, Melbourne.
2. The most important statutes are as follows: Lunacy Act 1867 (Vic); Lunacy Amendment Act 1888 (Vic); Lunacy Act 1903 (Vic); Lunacy Act 1928 (Vic); Mental Hygiene Authority Act 1950 (Vic); Mental Health Act 1959 (Vic); Mental Health Act 1986 (Vic). Most of these Acts were amended on many occasions before they were repealed.
3. Mental Health Act 1986 (Vic).
4. Report of the Consultative Council on Review of Mental Health Legislation, December 1981 (Dr D Myers, Professor R Ball and Ms D Fitzgerald); generally known as the ‘Myers Report’.
5. See eg N Rees, ‘Model Mental Health Legislation in Australia’. Paper presented at the Mental Health for All: What's the Vision? Conference, University of Newcastle, NSW, 13–15 February 1997, p. 87.
6. This point is made by numerous commentators; see eg K Jones, ‘The Limitations of the Legal Approach to Mental Health’ (1980) 3 International Journal of Law and Psychiatry 1.
7. practice This was ostensibly supported by s 87 of the Mental Health Act 1959 (Vic).
8. Arguably, no constitutional change is necessary for the Commonwealth to enact mental health laws and to directly administer mental health services because s 51(xxiiiA) of the Constitution permits the Commonwealth to legislate with respect to ‘medical and dental services’.
9. Prior to 1851, NSW law applied in the Port Phillip District. There is a useful summary of early NSW mental health law in J McClemens and J Bennett, ‘Historical Notes on the Law of Mental Illness in NSW’ (1962) 4 Sydney Law Review 49.
10. Victoria, Parliamentary Debates, Legislative Assembly, 1867, p 470 (Mr McCulloch).
11. In this early legislation there was less emphasis upon involuntary treatment than upon involuntary detention.
12. Victoria, Parliamentary Debates, Legislative Assembly, 28 November 1888, p 2209 (Mr Officer).
13. Victoria, Parliamentary Debates, Legislative Assembly, 20 October 1903, p 699 (Mr Murray).
14. At that time Victoria had over 4,500 psychiatric beds with a population of 1,208,854 (Victorian Year-Book 1903 at p 117). The Chief Secretary, Mr Murray, told Parliament: ‘Never in the history of our country was there such a large proportion of insane to the population, and the proportion to the population grows greater year by year. The causes of this great increase of insanity I will not even attempt to seek at the present time …’ (Victoria, Parliamentary Debates, Legislative Assembly, 20 October 1903, p 705 (Mr Murray)).
15. Section 8 of the Lunacy Acts Amendment Act 1914.
16. See M Lewis, Managing Madness: Psychiatry and Society in Australia 1788–1980 (AGPS, Canberra 1988) 39.
17. See the Second Reading Speech of the Chief Secretary for the Mental Hygiene Bill 1933, Victoria, Parliamentary Debates, Legislative Assembly, 5 December 1933, p 3170 (Mr MacFarlan).
18. Section 2 of the Mental Hygiene Act 1933.
19. See Lewis, n 15, pp 79–80.
20. Mental Hygiene Authority Act 1950.
21. Victoria, Parliamentary Debates, Legislative Assembly, 18 October 1950, p 1379 (Mr Fulton).
22. See Lewis, n 15, p 81.
23. E Dax, From Asylum to Community: The Development of the Mental Hygiene Service in Victoria, Australia (Cheshire, Melbourne 1962).
24. Lewis, n 15, p 81.
25. See Dax, n 22, pp 222–23.
26. Section 102 of the Mental Health Act 1959.
27. Section 99 of the Mental Health Act 1959.
28. The Act commenced operation on 1 November 1962. It was repealed by the Mental Health Act 1986 which commenced operation on 1 October 1987.
29. See n 3.
30. Official visitors appear to date from the Lunacy Act 1903.
31. See s 4(2)(b) of the Mental Health Act 1986 (Vic).
32. Section 6A(d) and (j) of the Mental Health Act 1986 (Vic).
33. General Assembly Resolution 46/119; Report A/46/721 (1991), generally referred to as the ‘UN Principles’.
34. See eg E Rosenthal and L Rubenstein, ‘International Human Rights Advocacy under the “Principles for the Protection of Persons with Mental Illness'” (1993) 16 International Journal of Law and Psychiatry 257.
35. See eg C Gendreau, ‘The Rights of Psychiatric Patients in the Light of the Principles Announced by the United Nations: A Recognition of the Right to Consent to Treatment? (1997) 20 International Journal of Law and Psychiatry 259.
36. The full text is available on the United Nations' website: www. un. org/disabilities/. The Convention was adopted on 13 December 2006.
37. Article 3(a) of the Convention on the Rights of Persons with Disabilities.
38. The Australian government has commenced the ‘pre-ratification’ process which includes consultation with various stakeholders and an assessment of whether ratification is in the national interest. See Australian Government Attorney General's Department website: www. ag. gov. au.
39. See Rogers v Whitaker (1992) 175 CLR 479.
40. See Secretary, Department of Health and Community Services v JWB (Marion's case) (1992) 175 CLR 218.
41. See Rogers v Whitaker (1992) 175 CLR 479. When discussing points of principle the majority of the High Court (Mason CJ, Brennan, Dawson, Toohey, and McHugh JJ) quoted with approval the following statement from an earlier case: ‘the paramount consideration [is] that a person is entitled to make his own decisions about his life’ (175 CLR 479 at 487).
42. Section 12AD(1) of the Mental Health Act 1986 (Vic).
43. Section 12AD(2) of the Mental Health Act 1986 (Vic).
44. Section 10(c) of the Charter of Human Rights and Responsibilities Act 2006 provides that ‘a person must not be subjected to medical treatment without his or her full, free and informed consent’. Section 7(2) of the same Act declares that rights of this nature ‘may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society …’
45. The status of advance directives at common law is not clear: see C Stewart, ‘Advance Directives: Disputes and dilemmas’ in I Freckelton and K Petersen (eds), Disputes and Dilemmas in Health Law (Federation Press, Sydney 2005) 38; J Atkinson, Advance Directives in Mental Health: Theory, Practice and Ethics (Jessica Kingsley Publishers, London 2007).
46. See eg J Peay (ed), Seminal Issues in Mental Health Law (Ashgate, Aldershot 2005) xxvi.
47. Section 5(1)(d) of the Medical Treatment Act 1988 (Vic).
48. Section 5 of the Medical Treatment Act 1988 (Vic), known as a ‘refusal of treatment certificate’.
49. Section 5A of the Medical Treatment Act 1988 (Vic).
50. Section 35B of the Guardianship and Administration Act 1988 (Vic).
51. Section 28(2)(e) of the Guardianship and Administration Act 1988 (Vic).
52. See eg comments made by the former Victorian Public Advocate and President of the Mental Health Review Board of Victoria, Julian Gardner, in Justice Review, June 2007, p 16.
53. See ss 275 and 276 of the Mental Health (Care and Treatment) (Scotland) Act 2003.
54. US federal legislation (the Patient Self-Determination Act 1990) has permitted advance directives in some circumstances since 1991. See J Swanson, M Swartz, J Ferron, E Elbogen, R Van Dorn. ‘Psychiatric Advance Directives Among Public Mental Health Consumers in Five US Cities: Prevalence, Demand and Correlates’ (2006) 34 The Journal of the American Academy of Law and Psychiatry 43.
55. See E Gallagher, ‘Advance Directives for Psychiatric Care: A Theoretical and Practical Overview for Legal Professionals (1998) 4 Psychology, Public Policy and Law 746.
56. D Treffert, ‘Dying with Their Rights On’ (February, 1974) Prism 1.
57. J Peay, n 44, p xxii. These statements summarise an argument made in N Rose, ‘Unreasonable Rights: Mental Illness and the Limits of the Law’ (1985) 12 Journal of Law and Society 199.
58. Atkinson, n 43, p 113.
59. The word ‘disability’ is defined in s 3 of the Guardianship and Administration Board Act 1986 to mean ‘intellectual impairment, mental disorder, brain injury, physical disability or dementia’.
60. See eg T Campbell and C Heginbotham, Mental Illness: Prejudice, Discrimination and the Law (Dartmouth, Aldershot 1991).
61. T Campbell, ‘Mental Health Law: Institutionalised Discrimination’ (1994) 28 Australian and New Zealand Journal of Psychiatry 554 at 557.
62. See eg S Rosenman, ‘Mental Health Law: An idea whose time has passed’ (1994) 28 Australian and New Zealand Journal of Psychiatry 560. This view was expressed more recently by the President of the Western Australian Mental Health Review Board, Mr Murray Allen. See M Allen, ‘Why specific legislation for the mentally ill?’ (2005) 30(3) Alternative Law Journal 103.
63. See s 85 of the Mental Health Act 1986.
64. The original legislation was the Guardianship and Administration Board Act 1986.
65. See the Mental Treatment Act 1930 (UK). There were some limited guardianship provisions in the Mental Deficiencies Act 1913 (UK). Prior to this time there were various statutes and common law rules that permitted the appointment of substitute decision-makers in some circumstances (see P Bartlett and R Sandland, Mental Health Law: Policy and Practice (3rd edn, Oxford University Press, Oxford 2007) p 488.
66. See N Glover-Thomas, Reconstructing Mental Health Law and Policy (Butterworths LexisNexis, London 2002) p 73.
67. See s 8 of the Mental Health Act 1983 (UK).
68. See Glover-Thomas, n 64, pp 78–80.
69. G Richardson, ‘Autonomy, Guardianship and Mental Disorder: One Problem, Two Solutions’ (2002) 65 Modern Law Review 702.
70. Reforming Mental Health Act, Parts I and II (London: HMSO, 2000) Cm 5016.
71. Richardson, n 67, p 716.
72. See eg N Rees, ‘The Future of Mental Health Law’ in V Carr (ed), Twenty-Twenty Vision: Mental Health in the 21st Century (Novartis, Sydney 1997) p 38.
73. Section 120A of the Mental Health Act 1986. There are some exceptions to the secrecy provisions in this section which are discussed in K Clark and A North, ‘Legality of Disclosure by Victorian Psychiatrists of Patient Information to Carers’ (2007) 14 Psychiatry, Psychology and the Law 147.
74. See s 141 of the Health Services Act 1988 (Vic).
75. See W v Edgell [1990] Ch 359.
76. In cases of conflict between these various legal rules, the provisions in the Mental Health Act prevail: see Clark and North, n 71, pp 153–54.
77. Section 33 of the Mental Health Act 1986.
78. Section 151(3) of the Mental Health Act 2007 (NSW).
79. Section 68(j) of the Mental Health Act 2007 (NSW).
80. This is the title of the equivalent Victorian official. The person who carries these responsibilities under the NSW Act is the ‘authorised medical officer of a mental health facility’.
81. See ss 71–79 of the Mental Health Act 2007 (NSW).
82. NSW Parliamentary Debates (Legislative Assembly), 22 November 2006 at p 4611.
83. M McMahon, ‘Re-thinking confidentiality’ in I Freckelton and K Petersen (eds), Disputes and Dilemmas in Health Law (Federation Press, Sydney 2005) p 563.
84. Professor Bernadette McSherry and others are preparing guidelines to assist mental health professionals about the circumstances in which they may properly breach confidentiality: see A Kampf and B McSherry, ‘Confidentiality in Therapeutic Relationships: The Need to Develop Comprehensive Guidelines for Mental Health Professionals (2006) 13 Psychiatry, Psychology and the Law 124.
85. The Mental Health Review Board of Victoria's most recent Annual Report reveals that it deals with more than twice as many involuntary patients on community treatment orders as it does people who are involuntary hospital in-patients (see Mental Health Review Board of Victoria, Annual Report 2007, p 45).
86. Section 14(3)(a) of the Mental Health Act 1986.
87. Section 14(3)(b) of the Mental Health Act 1986.
88. Section 14B(1) of the Mental Health Act 1986.
89. Section 14B(3) of the Mental Health Act 1986.
90. Section 4 of the Mental Health Act 2007 (England and Wales).
91. Section 8 (1)(c) of the Mental Health Act 1986 (Vic).
92. Section 8 (1)(d) of the Mental Health Act 1986 (Vic).
93. Section 14(1) of the Mental Health Act 2007 (NSW) (emphasis added).
94. See P Appelbaum, Almost a revolution: Mental health law and the limits of change, Oxford University Press, New York, 1994.
95. There are no equivalent provisions, for example, in either the English or the NSW legislation.
96. The issue of competence is one of contemporary significance in the UK following the passage of the Mental Capacity Act 2005: see eg Bartlett and Sandland, n 63, p 497.
97. N Rees, ‘International Human Rights Obligations and Mental Health Review Tribunals’ (2003) 10 Psychiatry, Psychology and the Law 33.
98. Section 30(1) of the Mental Health Act 1986.
99. Section 30(a) of the Mental Health Act 1986.
100. The amendments to the Mental Health Act were made by the Health and Community Services (General Amendment) Act 1993.
101. Section 27(d) of the Mental Health Act 2007 (NSW); previously s 41 of the Mental Health Act 1990 (NSW).
102. I acknowledge the extraordinary amount of scholarship that has taken place in the field of therapeutic jurisprudence over the past few years: see eg K Diesfeld and I Freckelton (eds), Involuntary Detention and Therapeutic Jurisprudence (Ashgate, Aldershot 2003).
103. Rees, n 95, p 39.
104. Mental Health Review Board of Victoria, Annual Report 2007, p 26.
105. See Mental Health Review Board of Victoria, Annual Report 2007, p 59.
106. See T Carney, D Tait, D Chappell and F Beaupert, ‘Mental health tribunals: “TJ” implications of weighing fairness, freedom, protection and treatment” (2007) 17 Journal of Judicial Administration 46.
107. See Carney et al, n 104, p 54.
108. Section 24(1)(b) of the Mental Health Act 1986.
109. See eg M Aronson, D Dyer and M Grove, Judicial Review of Administrative Action (3rd edn, Lawbook Co, Sydney 2004) p 471.
110. See eg Gleeson CJ in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [25].
111. Schedule 1 of the Mental Health Act 1986.
112. Victorian Civil and Administrative Tribunal Act 1998.
113. The former Western Australian Mental Health Review Tribunal is now part of that state's ‘super tribunal’, the State Administrative Tribunal: see State Administrative Tribunal Act 2004 (WA).
114. National Mental Health Policy: Australian Health Ministers, April 1992, Canberra, AGPS, 1992.
115. Human Rights and Mental Illness: Report of the National Inquiry into the Human Rights of People with Mental Illness (Canberra, AGPS 1993).
116. H Whiteford and W Buckingham, ‘Ten years of mental health service reform in Australia: Are we getting it right?’ (2005) 182(8) Medical Journal of Australia 396.
117. See eg S Zifcak, ‘Towards 2000: Rights, Responsibilities and Process in the Reform of Mental Health Law’ (1997) 4 Australian Journal of Human Rights 1.
118. See eg Centre for Health Law, Ethics and Policy, The University of Newcastle, Report to the Australian Health Ministers' Advisory Council National Working Group on Mental Health Policy on Model Mental Health Legislation Vol I, Newcastle, 1994 at p 155.
119. See eg I Hickie, G Groom, P McGorry, T Davenport and G Luscombe, ‘Australian mental health reform: Time for real outcomes’ (2005) 182(8) Medical Journal of Australia 401.
120. Hickie et al, n 117, p 405.
121. Australian Health Ministers, National Mental Health Plan 2003–2008 (Canberra, Australian Government 2003).
122. P Allderidge, ‘Hospitals, Madhouses and Asylums: Cycles in the Care of the Insane’ (1979) 134 British Journal of Psychiatry 321 at 321.