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Abstract
This article reports possible operational or policy implications for Mental Health Tribunals (‘MHTs’) of findings from a multi-year Australian collaborative study of mental health review tribunals in three jurisdictions (Victoria, New South Wales and the Australian Capital Territory) undertaken in conjunction with the New South Wales Law and Justice Foundation. Recognising the tension between human rights and clinical benchmarks for the care and treatment of mental health consumers and resource constraints in the service system and resources for review bodies alike, the paper reflects on stakeholder and consumer concerns about access to quality treatment and associated support services, review of treatment adequacy and drug regimes, and their ‘participation’ or dignity of engagement in review processes. Building on earlier arguments in favour of equipping MHTs to adequately engage the clinical and social domains in addition to the domain of legal rectitude, and for ‘flexibility’ of process more characteristic of case-conferencing modes, this article also reviews some alternative or supplementary policy pathways for supporting the work of MHTs, including advocacy and dispute resolution machinery.
Notes
1. From July 2010, South Australian legislation introduced various ‘levels’ of orders, and extended review to both the making and the revocation of otherwise unreviewed orders. The Tribunal (a ‘Board’) is to be notified of clinical admissions within 1 business day but there is some flexibility about scheduling the actual review in the case of initial, or ‘level 1’, CTOs (subject to regulations): Mental Health Act 2009 (SA) (subsequently ‘SA MHA, 2009’) ss 22 [1 business day notification period], 79 [requirements regarding reviews]. Otherwise reviews must be conducted ‘as soon as practicable’ or ‘not exceeding 7 days’.
In October 2010 the Victorian Government announced a number of important reforms to mental health law and administration: Press Release, Premier and Minister of Mental Health, ‘New Mental Health Bill our for Public Comment’ ( http://www.premier.vic.gov.au/component/content/article/12156.html. <last viewed Wednesday, October 27, 2010>, and published the exposure draft of a new Mental Health Act, anticipated to operate from July 2012 if enacted. Initial ITO or CTO orders are to be reviewable on application before the Tribunal, while the next level of orders (such as for treatment extending beyond 3 month) may only be made by the Tribunal. Applications will be required to be set down promptly and be heard within 10 days: ‘Exposure Draft Mental Health Bill 2010–Explanatory guide http://www.health.vic.gov.au/mentalhealth/mhactreview/ <last viewed Wednesday, October 27, 2010>.
2. Perkins found consumers' evidence was often disbelieved, whilst psychiatrists were viewed as having their best interests at heart (Perkins, 2003b, p. 127). Peay likewise found that the source rather than the content of evidence guided MHT reasoning (Peay, 1989, p. 215). Information about social circumstances was particularly inadequate (ibid, 110), making it difficult to assess a person's ability to manage in the community (ibid, 31).
3. The research was undertaken between 2005 and 2010 by the Universities of Sydney and Canberra, funded by an Australian Research Council ‘Linkage Grant’, as a collaboration between the universities and four partner organisations: the Law and Justice Foundation of New South Wales, the New South Wales Mental Health Review Tribunal, the ACT Mental Health Tribunal (from February 2009, part of the ACT Civil and Administrative Tribunal) and the Victorian Mental Health Review Board.
4. The presumption was subsequently reversed by reforms contained in the NSW Trustee and Guardian Act 2009 (NSW), ss 43 [notice prior to mental heath inquiry], 44 [MHRT jurisdiction], 47 [power to make interim orders]. However, the legislation continues to grant the MHRT jurisdiction to deal with matters arguably better handled by the Guardianship Tribunal. The Act came into force on June 26, 2009.
5. In Australia the right to a second medical opinion is either not explicitly guaranteed by law, is stated as a formal right (rather than as an entitlement) and generally is not well publicised, other than in jurisdictions such as Victoria (and to some extent also WA and Tasmania). See text to nn 18–22 below. Six of these, 122,132 (58.3% of 209,356) were separations with specialised psychiatric care and 87,224 were separations without specialised mental health care (AIHW, 2009, p. 64).
6. of these, 122,132 (58.3% of 209,356) were separations with specialised psychiatric care and 87,224 were separations without specialised mental health care (AIHW, 2009, p. 64).
7. AIHW, Community mental health services in Australia, various years, estimates pooled for 2001–2003 (ACT), 2000–2004 (NSW), and for 2003–2004 (Victoria).
8. Consistent with the very low Victorian discharge rates (Pearson, 2004, p. 176; Swain, 2000, p. 79), our NSW study likewise found discharge or change of orders to be quite rare. Across the whole sample of 299 consumers, CTOs were revoked (or CTO applications declined) for just two consumers (0.7% of the sample), and varied for 5 consumers (1.7%). ITOs were discharged for another two (0.7%), while there was one delayed discharge (0.3%). Overseas tribunals report significantly higher rates: 31% in Canada (Adams, Pitre, & Cieszkowski, 1997); 34% in the United Kingdom (Myers, 1997); and a more modest 14.5% in New Zealand (O'Brien, Mellsop, McDonald, & Ruthe, 1995).
9. The Victorian discharge rate in 2006–2007 for inpatients on patient-initiated appeals was 3.3%, compared to 2.9% for initial reviews of existing orders and 0.8% on annual reviews (i.e. the more chronic cases); while for CTOs it was 4.1% for appeals, 6.2% on initial reviews and 2.4% on annual reviews (MHRB(Vic), 2007, p. 67). In Ireland, 13.4% of people were admitted more than once during a year (MHC, 2008, p. 47), with discharge rates at hearing ranging from 8% to 13%: ibid, 55.
10. Too much should not be made of this. According to statistics on Ireland's scheme – requiring review within 3 weeks – in 2007, 39% of people were discharged before scheduled hearings (MHC, 2008, p. 23). This correlates reasonably well with data showing that 53% of admissions lasted 21 days or less (18% under 10 days and 37% under 16 days): ibid, 50.
11. In a cognate area, Victoria recently adopted a similar model, replacing its Intellectual Disability Services Panel (legal ‘merits’ review) with newly created roles for three new bodies: a Disability Services Commissioner, a Senior Practitioner, and rights of review by the Victorian Civil and Administrative Tribunal under the Disability Act 2006 (DoHServices, 2006).
12. Jerry Mashaw modelled the options for ‘governance accountability’ frameworks, comparing regulatory, market, and social systems of accountability in answering the questions about ‘who’ is accountable to ‘whom’, for ‘what’, through ‘what process’, by reference to ‘what standards’ and with what ‘effect’ or results (Mashaw, 2006, p. 118).
13. This model is also found in England and Wales, and in Scotland. Differences in the extent of the powers and responsibilities of these bodies may be significant, as suggested by Donnelly (2010) with respect to second opinions (see below).
14. The Victorian Mental Health Act Review panel identified deficiencies in complaints handling, auditing of conditions, clinical leadership, and clinical monitoring (Gardner, 2009, pp. 61–64, 67–72), and the exposure draft Mental Health Bill 2010 proposes empowering a new office of Mental Health Commissioner (clauses 177–182) to oversight and where necessary deal with complaints unresolved at the local service level (clauses 183–223).
15. Care needs to be taken not to go beyond the generalities of the pool reaching the tribunal, however: thus a UK follow-up study of Royal Shrewsbury Hospital cases failed to find any statistically significant association between MHT release decisions and the type of admission orders, diagnosis, or gender of applicants (Myers, 1997).
16. Leaving aside when and how admissions are ‘reported’ into the MHT data-bases, it cannot be assumed that the characteristics of involuntary populations are identical. Availability (or not) of private psychiatric care, and policies and training of possible intake-agencies can be important, as shown by a NSW study of two differing styles of police engagement with the mentally ill (Fry, O'Riordan, & Geanellos, 2002).
17. In 2001, 22% of all MHT applications in England and Wales dropped out due to clinician discharge (Perkins, 2003b, p. 11), while discharge rates are higher if reviews are principally on application rather than routinely scheduled. A NZ study found delays and withdrawals of applications prior to hearings were common, including due to unavailability of supervising psychiatrists or changes in the patient's legal status (O'Brien, Mellsop, McDonald, & Ruthe, 1995).
18. Mental Health Act 1986 (Vic) (subsequently ‘Vic MHA’) s. 18(1)(a), Mental Health (Care and Treatment) Act 1994 (ACT) (subsequently ‘ACT MHA’), s 50(1)(b)(i). In WA there is a right to request a second opinion in respect to any treatment or proposed CTO extension: Mental Health Act 1996 (WA) (subsequently ‘WA MHA’) ss 111, 76, respectively, while Tasmania confers a right to a second opinion in the event that admission is refused: Mental Health Act 1996 (Tas) (subsequently ‘Tas MHA’) s 21. In WA, inpatients also have a (qualified) right, at any time: s 164 (2),(3).
19. Mental Health Regulations 2008 (SR111/2008) (Vic) r 9 and Schedule 7 [The statement provides: ‘Your case manager or psychiatrist can arrange this from within the mental health service, or they can help you choose your own psychiatrist. If you choose a private psychiatrist you may have to pay a fee. You can discuss the second opinion with your treating psychiatrist. However, your treating psychiatrist is responsible for making the final decision about the treatment you receive’].
Aside from cost, private psychiatrists prepared to accept second opinion work are few, often with limited experience with the types of illness encountered, and may not be able to provide timely reports.
20. Personal communication, President of MHRB, Wednesday, August 5, 2009.
21. Mental Health Act 2000 (Qld) (subsequently ‘Qld MHA’) s 190 [‘If the involuntary treatment order for the patient has been in force for more than 6 months, the tribunal must consider whether an examination and report should be obtained from a psychiatrist other than the psychiatrist responsible for the patient's treatment’.] This power is rarely exercised. In the first 7 years, 59 ITO examinations were ordered (not including first examinations), not all of which were necessarily made under s 190: personal communication, Executive officer Qld MHRT, August 14, 2009. The provision was included in the 2000 Act when the 1974 system of 3 monthly and then 12 monthly medical re-certification examinations was replaced by orders which may continue until discharged either by clinicians or MHTs (or absence of treatment for 6 months): s 118.
22. NSW MHA, Schedule 3 and s 74. This is broadly consistent with the very limited right for consumers of mental health services to be informed of and assisted to exercise the right to access a second opinion, as expressed in the National Statement of Rights and Responsibilities of Consumers of Mental Health Services (1991, reprint 2000), available at http://www.mhcc.org.au/manual/ch1.aspx#ch1_rps_nsrr, (last visited August 3, 2009).
23. There were 1,083 hearings, of which 123 had ‘invalid values’ due to being adjournments, applications for variation of orders by recording a move from one health region to another, etc. The values quoted are for the remaining (or mainly ‘live’ hearings, where all parties were physically present). Acutely ill consumers, particularly those appearing in respect of applications for ECT, are likely to appear by video or conference phone, or to be too unwell to participate (though in NSW the psychiatrist member will seek to visit and report back to the tribunal on such consumers).
24. Information on hearing duration was missing from NSW file records for 70.9% of all ‘hearings’ or 72.6% of ‘live’ hearings, so the data need to be treated with caution.
25. According to the information recorded on file by MHRB members, Victorian hearings were also brief: the modal category for time taken was 20 minutes (18.1% of the total sample), followed closely by 30 minutes (another 16%). Over 60% of hearings were completed within half an hour (compared to 93.3% in NSW). Again caution is required because members may not always distinguish between and reliably record the hearing time (as distinct from preparation time), and hearings may be kept short and to the point where consumers are patently unwell and distressed.
26. SA MHA 2009, s 79(3).
27. Therapeutic jurisprudence (‘TJ’) aims to craft laws and procedures which maximise therapeutic gains and minimise avoidable harms (Kapp, 1994; Slobogin, 1995; Wexler, 1992; Winick, 1994).
28. The Qld MHRT Members Handbook includes a passage under the heading ‘Respect and sensitivity’ which reads:
The therapeutic relationship … is extremely important to … ongoing care and treatment … . Nothing that occurs in a Tribunal hearing should impact negatively on [that] relationship … . The hearing is not a clinical intervention and should not be used to conduct an examination of the patient for the purposes of challenging diagnosis or recommending treatment. The Tribunal must give appropriate weight to the evidence of the treating psychiatrist, and it should not usually be necessary to elicit evidence from the patient to substantiate or contradict the opinions or views [of] the treating psychiatrist … . It is not appropriate to use the hearing to question treatment decided upon by the treating psychiatrist or to highlight service delivery deficiencies.
29. Victorian research commented on the low proportion of hearings involving legal representatives (9.6% in 2002: Pearson, 2004, p. 176). Our estimate for the first complete hearing is 6.2% for Victoria, but 18.8% in NSW.
30. NZ reports much higher levels of representation (69% of appeals: O'Brien et al., 1995), however, it also found that ‘legal representation did not significantly increase patients’ chances of successful discharge but did delay the hearings’.
31. The impact of caseloads and frequency of representation on the cost and timeliness of English mental health tribunal proceedings was studied in the early 1990s by Blumenthal and Wessley (1994a, 1994b).
32. Our findings essentially confirm Swain's (2000) study of 25 Victorian Board hearings in 1997–1998, which found that about one third of hearings were completed in less than 10 minutes, nearly two thirds in under 15 minutes and only 4% lasted longer than 30 minutes; with the cap at 38 minutes (Swain, 2000, p. 83). However, the data from which such statistics are derived is only as reliable as the members who record it on file.
33. The majority of MHT hearings in Perkins' study in the late 1990s lasted more than an hour, although deliberations took less than 15 minutes in over two thirds of proceedings (Perkins, 2003b, p. 126). More recent data from MHTs in the Cambridge region found an average 2 hours and 40 minutes (Dibben, Wong, & Hunt, 2005).
34. [1994] 33 NSWLR 315.
35. Indeed in Victoria the Supreme Court has ruled that the focus should be on satisfaction of the legal criteria: In the matter of XY unreported decision of the Victorian Supreme Court, March 6, 1992, (1992) 2 MHRBD (Vic) 501 (Fullagar, Brooking, Marks JJ).
36. This and following sections summarise ideas canvassed more extensively elsewhere (see: Carney & Vernon, 2009, unpublished).
37. Even WA consumers on CTOs were found to be poorly informed about other than the ‘basics’ of initial appointments, review and the official order, with worrying proportions having no information about the requirements of CTOs (33%), access to community visitors (39%), or second opinions (64% not aware) (Rolfe, Sheehan, & Davidson, 2008, p. 41).
38. As demonstrated by other ‘problem solving’ or specialist courts and tribunals guided by restorative justice or therapeutic jurisprudence principles, a separate role of aiding and assisting people to better prepare and participate in a legal process is not a radical step (further, Carney & Vernon, 2009, pp. 3–4). Moreover, our research suggests that clinical staff and MHT members alike would welcome training about how to facilitate constructive dialogue, how best to present information at hearings, its timely exchange, and the roles of the various stakeholders in the care network crucial to holistic planning in health and community services.
39. The volunteer community visitor program is in direct contact with consumers through visits to facilities, requests for assistance with treatment issues or MHT hearings, or as a result of telephone complaints. Visitors can inquire into the adequacy of treatment and discharge plans, monitor resources available to customers, and request medical files (with their permission).
40. These complaints/appeals about the mental health system, including treatment options, allegations of unfair treatment or breakdown of relations between consumers and their treating teams (and others) could come from the consumers, or from family or other advocates. A limited version of such a power (which may be internally delegated to a member or the registrar) is conferred in limited circumstances on the WA MHT: WA MHA, s 146(1) [‘The Board is to enquire into any complaint made to it concerning – (a) any failure to recognize the rights given by this Act to an involuntary patient; or (b) any other matter to do with the administration of this Act’.].
41. In 2007–2008 the Victorian MHRB calculated the direct and indirect cost per ‘hearing’ as AUD459 and per ‘case’ (not all of which come to hearing) as AUD339 (MHRB, 2008 Appendix F at, p. 68). By comparison, the Irish Tribunal costs for calendar year 2007 were €3,103 per ‘case’ (AUD5,387) and €4,753 (AUD8,250) per hearing (MHC, 2008, p. 58). This is a ratio of nearly 16:1 on cases, or 18:1 on completed hearings. In the 2007–2008 Annual Report, the Queensland tribunal put the cost ‘per matter’ as AUD289, down from AUD342 in 2003–2004 (at pp. 5, 28).
42. Victoria is the least well resourced at $459 per hearing, followed by NSW at $ 501 and Queensland at $549.
43. In Kracke v Mental Health Review Board) [2009] VCAT 646 (April 23, 2009)), Bell J issued a declaration that the MHRB had breached Mr Kracke's right to a fair hearing under section 24 of the Victorian Charter by ‘unreasonably’ delaying the routine review of involuntary treatment (scheduled to take place every 12 months) and CTOs (scheduled for review within 8 weeks of any extension). Although Mr Kracke contributed by requesting adjournments and a second opinion, the delay was found to be excessive, and the Board was held responsible for ‘driving’ compliance with the statutory timeframes: see paras [700] to [702], esp. at [702]. Subsequently, community treatment orders were reconfirmed: Kracke v Mental Health Review Board and Anor (No 2) (General) [2009] VCAT 1548 (August 13, 2009).
44. It is surely no coincidence that the most economical and highly regarded federal tribunal, the Social Security Appeals Tribunal, which devotes a minimum of 1 hour per hearing (two for more complex matters) spent an average of AUD$ 2,120 per finalised hearing in 2007–2008, or 4.6 times the MHRB average: Social Security Appeals Tribunal, Annual Report 2007–2008 (Canberra, 2008), at 34.
45. SA MHA 2009, s 80(2)(d).
46. As in section 22(2) of the Victorian Act, a partial step in this direction is found in section 137 of the WA MHA which directs that the tribunal is to ‘have regard primarily to the psychiatric condition of the person concerned and is to consider the medical and psychiatric history and the social circumstances of the person’. [emphasis added].
47. This appears to echo a comment by a psychiatrist of 30 years standing in appearing before or serving on tribunals that, ‘Although Rule 22 provides that the proceedings should “seek to avoid formality,” a hearing should not be allowed to drift into a “case conference”’ (Woolf, 1991, p. 408). A more nuanced view put it this way: ‘Although it is important to have a clear structure to the proceedings, as distinct from a case conference, this should never be allowed to restrict the patient or any witness from saying everything felt to be necessary’ (Wood, 1998, p. 200).
48. Echoing our findings about strategic use of tribunal adjournments (Carney et al., 2008), Wood suggests that, particularly for repeat players ‘we might propose that there is no reason why, as an additional subsidiary function the tribunals should not play a constructive role in case management, such as allowing the tribunals themselves to have some input into the appropriate timing of a succession of tribunals, within, of course, a clear statutory pattern of allowable gaps’ (Wood, 1999, p. 135). Or as he argued earlier ‘A patient's rights, however that concept is interpreted, are best protected by periodic constructive review, so that needs can be identified and pressure exerted to meet them’ (Wood, 1995, p. 420).