Mental Health Legal Centre Inc.

Lacking Insight - Introductory Material

PART 2: Introductory Material

Mental Health Review Board 

Deinstitutionalisation 

Community Treatment Orders 

Timely Review 

Treatment Plans 

Therapeutic Jurisprudence

Mental Health Review Board: Role and Human Rights Context

The role of the Mental Health Review Board of Victoria
The Board was established as a statutory body to protect the human rights of involuntary patients. The Board’s main role as an independent tribunal is to review the appropriateness of orders made under the Act to enforce involuntary treatment both in hospitals for inpatients and in the community setting for people on community treatment orders (‘CTOs’). Following amendments to the Act in 2004 they also must review people’s treatment plans and order their revision by the treating team in certain circumstances. These functions of the Board are set out in Part IV of the Act.

The way the Board is to conduct hearings is set out in s24:

 Procedure of the Board

(1) The Board -

 (a) must, in hearing any matter, act according to equity and good

  conscience without regard to technicalities or legal forms; and

  (b) is bound by the rules of natural justice; and

  (c) is not required to conduct any proceedings in a formal manner.

Part IV also makes provision for consumers to appear, be represented, have access to their clinical file and the report prepared for the Board at least 24 hours before the hearing, and request a Statement of Reasons for the Board’s decision. The Board has some functions in addition to determining whether involuntary status is appropriate, such as appeals against transfer or refusal of leave to Security Patients; such proceedings are not the subject of this research.

The majority of Board hearings (81.7%) are conducted by a three-member tribunal made up of a lawyer, a psychiatrist and a community representative (MHRB, 2007: 24).

In 2006-07, the Board listed 18,719 cases, of which 7,410 were heard and determined and which included 7203 cases which were adjourned at least once before being heard. 6,210 of these cases (83.8%) were reviews of involuntary status, while 1,081 (14.6%) were appeals against some or all aspects of involuntary status ((MHRB, 2007: 42-3). In 2006-2007 the rate of discharge by the Board from involuntary status was 3.4% ((MHRB, 2007: 46).

The human rights framework in which the Board functions
A range of international human rights instruments set out the rights of people with disabilities, the most recent being the United Nations Convention on the Rights of Persons with Disabilities (‘Convention’) which was adopted by the General Assembly in 2006 and ratified by Australia in July 2008. The U.N. Principles for the protection of persons with mental illness and the improvement of mental health care (1991), generally referred to as the ‘MI Principles’, deal specifically with the rights of people with psychiatric disability, but have been criticized as derogating human rights and instituting an inferior and discriminatory standard. Another U.N. standard relevant to people with psychiatric disabilities is The Standard Rules on the Equalization of Opportunities for Persons with Disabilities (1993), generally referred to as just the ‘Standard Rules’.

The MI Principles have been the prevailing human rights standard for mental health services throughout Australia, but these now must be read in light of the more recent developments including the Convention. This was highlighted in the March 2008 issue of the U.N. Enable Newsletter of the U.N.’s Secretariat for the Convention, where it stated:

It is important to note that some provisions of the Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care have been criticized and the Convention on the Rights of Persons with Disabilities now supersedes these standards to the extent that there is any conflict between the two instruments.

This point was further made in a recent report to the Secretary-General of the U.N. from the Special Rapporteur of the Human Rights Council on torture and other cruel, inhuman or degrading treatment or punishment[1]:

Thus, in the case of earlier non-binding standards, such as the 1991 Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care (resolution 46/119, annex), known as the MI Principles, the Special Rapporteur notes that the acceptance of involuntary treatment and involuntary confinement runs counter to the provisions of the Convention on the Rights of Persons with Disabilities.

These international human rights instruments, most notably the legally binding Convention, can be used alongside Victoria’s Charter of Human Rights and Responsibilities Act of 2006 (‘the Charter’) to interpret legislation like the Mental Health Act to ensure that it is compatible with human rights.

The Charter came into force on 1 January 2007. Obligations of public authorities to consider and act consistently in regard to human rights, and the powers of the courts to interpret and apply legislation in accordance with the Charter, came into force on 1 January 2008. The Board is obliged as a tribunal to apply and interpret the Act consistently with the Charter. As “public authorities” hospitals, clinics and mental health professionals providing treatment under the Act, including involuntary treatment, must ensure all acts and decisions are consistent with the Charter.

Some of the human rights recognised by the Charter relevant to provision of mental health treatment, voluntary and involuntary, are:

• right to recognition and equality before the law (s8);

• protection from torture and cruel, inhuman and degrading treatment (which is specifically defined to include medical treatment without consent) (s10);

• freedom of movement (s12);

• right to privacy and reputation of person (s13);

• freedom of thought, conscience, religion and belief (s14);

• freedom of expression (s15);

• right to liberty and security (s21); and

• humane treatment in detention (s22).

There are also rights that are relevant to the conduct of the Board:

• Right to a fair hearing (s24) - there are three significant requirements of s24:

o the court must be competent, independent and impartial; and

o the hearing must be fair; and

o the principles of natural justice must be applied. This may include timely and open access to relevant documents and the right to question relevant professionals.

The Charter provides that these rights can be subject to reasonable limits where this can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account a number of factors including least restrictive means available to achieve the purpose of the limitation (s 7).

It is as yet unclear exactly how the Charter will impact on involuntary treatment, and the processes of the Board. In the event that unlawful breaches occur, the Act and the Board’s processes may require amendment to bring them into line with the Charter. The Convention and the MI Principles can be used to interpret the Charter, so it, as well as relevant international jurisprudence, may influence the legitimacy of involuntary treatment, the Board, and its functions, powers and processes.

The Broader Context of the Board’s processes

To gain a greater appreciation of the way the Board presently functions, it is first necessary to provide some context for its operation. This part of the report focuses on two key aspects of contemporary service provision, namely deinstitutionalisation and CTOs. It then canvases two issues of significance to the legal framework in which the Board operates – timeliness of reviews and the advent of treatment plans. Finally, it looks into therapeutic jurisprudence (‘TJ’) and its practical implications for processes such as Board hearings. These therapeutic jurisprudence principles significantly informed the analysis of consumer and stakeholder interviews which follows in Parts 3 and 4.

It is also invaluable to consider the views of Professor Michael Perlin on the Board’s context. Perlin, an internationally-recognized expert on mental disability law, has developed two concepts to describe the entrenched prejudice and discriminatory practices which have developed in the relationship between society and the legal system, on the one hand, and mental illness and consumers, on the other. He develops the following terms in order to assist us to understand possible attitudes towards mental illness:

• ‘sanism’: irrational prejudice based upon ‘stereotype, myth, superstition, and deindividualisation’, which is sustained and perpetuated ‘by our use of alleged ‘ordinary common sense’;
• ‘pretextuality’: the process whereby courts and legal decision-makers [e.g. such as mental health tribunals] accept testimonial dishonesty and engage in similar dishonest decision-making, such as the tendency to shape testimony to achieve desired ends [i.e. massaging clinical evidence so that an involuntary treatment order appears to be justifiable]. (Perlin, 2003 xxxiv, xxxvi).

In considering ‘how we construct ‘craziness’ he maintains that a number of problematic practices in the relationships between law and mental disability ‘all reflect in both explicit and implicit ways, the pernicious effects of sanism and pretextuality on the full range of mental disability law issues. I believe it is impossible to truly understand the jurisprudence in any of these areas without first understanding sanism and pretextuality’. ( Perlin, 2003 :3,4).

Kate Diesfeld describes Perlin’s use of the concept ‘sanism’ as referring to an irrational prejudice which becomes part of societal attitudes towards people with mental illnesses which in turn infects jurisprudence and lawyering. (Diesfeld, 2003:3)

It is important that these overarching influences are noted when considering the role of the Board and whether it can act as competent, independent and impartial and fair.

Deinstitutionalisation

Deinstitutionalisation: A background

The goals of deinstitutionalisation – moving treatment from institutions to treatment in the community - are indeed admirable. Stand-alone institutions were known to be houses of horror, rife with abuse and neglect; they must never be re-created.

Although it is sometimes thought that the policy of deinstitutionalisation was a response to important events such as adoption of the MI Principles, the reduction in the number of beds in psychiatric hospitals has been occurring in Victoria since the 1960s. If anything, the events of the mid-1980s to the mid-1990s – the period of the most rapid deinstitutionalisation - were the continuation of the long-standing practice of ‘closing the front door and opening the back door’ of psychiatric hospitals. This period of roughly ten years, as well as being a continuation of the process of deinstitutionalisation, was also an attempt to respond to its worst consequences (Doessel, 2005: 990; Dawson, 2005: 31-32; Whiteford, 2006: 396).

These consequences – which included homelessness, sub-standard accommodation and the inability to access treatment – and the adverse publicity they received, culminated in the 1992 National Mental Health Plan adopted by all Australian governments as part of the National Mental Health Policy. This first plan covered the period from 1992-1997. Subsequent second and third plans have covered the period of the past decade. A key part of the Strategy that arose out of the National Mental Health Plan was the imperative that the closure of stand-alone psychiatric hospitals be balanced by the transfer of services to general hospital psychiatric wards – a process known as ‘mainstreaming’ - and to area-based mental health services. Area-based mental health services were devised to provide for a wide-variety of needs, including the provision of after- hours services and care in the community setting (Whiteford, 2005: 396; Gerrand, 2005: 255).

Criticism of deinstitutionalisation

“A nationwide review of the experiences of those who use and provide mental health services has documented that current community-based systems fail to provide adequate services. Specifically, these services are characterised by: restricted access; variable quality; poor continuity; lack of support for recovery from illness; and, protection against human rights abuses. In the view of consumers, carers and health professionals who provide services, this does not represent a failure of policy. Instead, it is a failure of implementation through: poor administration; lack of accountability; lack of ongoing government commitment to genuine reform; and, failure to support the degree of community development required to achieve high quality mental health care outside institutional settings.” (Out of Hospital, Out of Mind, 2003: 1)

It is fair to say that the goals of deinstitutionalisation have not been widely achieved beyond the closure of stand-alone psychiatric hospitals. A vital feature of a deinstitutionalised system is that services that would typically have been provided by stand-alone hospitals are instead provided in the community by area mental health services and ‘mainstreamed’ hospital facilities. Three separate reports on mental health service provision spanning the period from 1993-2005 have emphasised that adequate community-based services have not materialized.

Three cries for help

In 1993, the Report of the National Inquiry into the Human Rights of People with a Mental Illness (‘Burdekin Report’) found that the way that some people with a mental health issue were compelled to exist in the community was a violation of their rights. The Burdekin report focused on the ‘rhetoric’ of community treatment, emphasizing the gulf that existed between aspiration and actual living conditions. These conditions were described as ‘cramped, grotty, and undesirable.’ The Burdekin Report stated quite clearly that the developed nation of Australia was in violation of the MI Principles (Savy, 2005: 207).

Ten years after ‘Burdekin’ (and two five-year Australian Governments National Mental Health Strategies later), little had changed. The 2003 report by the Mental Health Council of Australia, Out of Hospital, Out of Mind, cites the key issues of the ‘grossly unmet need for basic mental health services’, the ‘grossly inadequate growth in expenditure on basic services’ and ‘ongoing human rights abuses and neglect’ (3-4). The Report highlighted the gaps that existed in service provision, the lack of alternative treatments offered by services and the paltry sum of money that was spent on mental health at a national and state level.

In 2005 the Mental Health Council of Australia, Not for Service report continued the concerns raised in earlier reports, but also declared that the delivery of mental health services in the community had reached the state of serious and systemic neglect (Savy, 2005: 208).

These concerns were reiterated in 2006 a Senate Select Committee on mental health.

It reported significant problems regarding access to services, service responsiveness, consumer and carer advocacy, monitoring and accountability and mental health research. In response the Council of Australian Governments (COAG) developed a National Action Plan on Mental Health (2006) which aims to improve mental health through promotion prevention and early intervention, improved access to mental health services, access to accommodation support and participation in the community through the development of social, recreational and employment opportunities.

The more things change . . .

So what has changed since the first Australian government’s National Mental Health Strategy took effect? Some have argued that, fundamentally, nothing has altered in the provision of services, and that the transition in Victoria from stand-alone psychiatric hospital treatment to community-based treatment has not resulted in deinstitutionalisation at all. The present system has been accused of merely altering the face of mental health services, leaving the mind-set unchanged and the type of care provided by psychiatric units of general hospitals still institutional in nature. Chesters (2005) suggests that there is an inability to conceive of the provision of mental health services beyond the institutional setting. This claim is supported by Richmond (2005) who adds that the treatment offered by these new ‘mini institutions’ leaves people no freer to participate in the community. Richmond states emphatically that psychotropic medication – so heavily relied upon because of a lack of funding for alternative therapies – is itself a prison:

“Yet the new psychiatric units that are part of general hospitals may well operate as mini-institutions. Here as elsewhere psychiatric treatment is organized around psychotropic drugs which are themselves ‘imprisoning substances’, accurately described as chemical restraints.” (p.223)

The next section of this report will look at a mechanism that has become central to the deinstitutionalised system of treatment provision. Some have argued that this system could not function without it (Dawson, 2005: 32). If treatment has transferred to the community setting, so has the means to involuntarily compel it. The means to compel treatment is the involuntary treatment order, and, especially in the case of Victoria, the Community Treatment Order, or CTO.

Community Treatment Orders

What does it feel like to be on a CTO, to be living in the community and subjected to involuntary treatment? In the above quote PM expressed the view that a CTO felt like a sentence, and that appearing before the Board he was on trial. He felt that it was up to him to prove that he was not guilty, however, that he had little chance of success. The emphasis in a Board hearing on the potential risk of harm and the implication that the person may therefore be dangerous reinforces the perception that the process is like being on trial.

Although not the focus of the research, consumers were keen to speak to the Board about their experience of being on a CTO. A common view was that the hearing would provide the consumer with the opportunity to speak of the CTO experience: to question the treating team, to offer solutions and alternatives to involuntary treatment and to challenge the regime of intervention. Consumers commonly believed that the Board had the power to direct the treating team and vary their treatment. Others, however, choose not to attend or had little faith in their ability to assert their views:

As discussed below, the use of CTOs in Victoria is particularly high. They are also of great relevance to an analysis of the Board as, in 2006/2007 66% of Board hearings were in relation to CTOs ((MHRB, 2006/2007: 44)

Managing ‘risk’

The fear of persons with mental illness creates a hidden bias against them that prevents equal justice, it is a form of discrimination (Perlin, 2000).

Board hearings often focused on ‘risk’, also noting that if risk had been established in the past, it was accepted as a current concern. The researchers noted that the Board rarely explored the evidence surrounding a particular event or incident. Because of the turnover of staff the current treating team are seldom able to assist the Board with knowledge of the circumstances surrounding events, so allegations of risk remain without being challenged [Researcher Observations].

Far from providing a means of destigmatising mental illness, as was the purported reason for deinstitutionalisation, the major focus of community treatment has for some time still been that of minimising the perceived ‘risk’. The risk criterion for involuntary treatment under the Act expressly allows intervention where the risk is one of deterioration in the person’s health – this application of risk is more frequently applied than actual risk to self or others. When this subjective and low-level test of risk forms the basis of decision-making about who will benefit from being on a CTO, treatment as an involuntary patient is often unwarranted. Many people placed on CTOs would voluntarily seek assistance for the treatment of their mental health issue – indeed many people on CTOs do not have a history of treatment refusal. An approach that places far too much emphasis on risk means that many people unnecessarily have their liberty curtailed (Carney, 2003).

Why has risk become a strong determinate of treatment decision-making? A number of factors have been crucial. The aforementioned scarcity of resources is certainly a factor in the over-reliance on CTOs by treating teams, who find themselves unable to provide services to those who seek them voluntarily. The media also plays its part with sensational headlines and ill-informed stories about the danger that people with mental health issues pose to the general public, greatly inflating a sense of danger. (Dawson, 2005: 43; Brophy, 2006: 472; Carney, 2003). The consequences of the focus on risk are that CTOs are not only directed to those who will benefit most from such schemes, they are also disproportionately ordered against persons who are perceived to be the greatest threat, namely young men and people from ethnic or indigenous backgrounds (Brophy, 2003: 84-5). This is social control not treatment. Treatment provided on the basis of bias and prejudice is wholly counter-therapeutic.

The law in Victoria regarding CTOs can be found in sections 14 and 14A-14D of the Act. The essential elements of this part of the Act are that the criteria of section 8 (1) of the Act apply to the person and appropriate treatment can be received by the person in the community. Section 8 (1) of the Act sets out the criteria for involuntary treatment of a person, which include the person appearing to be mentally ill and requiring immediate treatment, there being a certain level of risk to themselves or others, the person either refusing or being unable to consent to the necessary treatment and there being no less restrictive means of getting adequate treatment. Other features of the legislation about CTOs include:

• A CTO, like involuntary status, must be reviewed by the Board within the first eight weeks and then every 12 months;

• a CTO must not exceed 12 months;

• a CTO may specify where a person has to live;

• an authorised psychiatrist can extend a CTO for an unlimited number of times;

• a CTO and the attached treatment plan must be reviewed by the treating team at regular intervals;

• a CTO may be varied by an authorised psychiatrist at any time; and

• a CTO may be revoked by an authorised psychiatrist at any time, and a person returned to an approved mental health service if the order is not working or the person is not complying with treatment and at significant risk of deterioration.

CTOs – How and why they came about

Initially CTOs were not part of the Act but were added to it in 1988. Indeed the initial role of CTOs was as an extension of the leave system, a quasi parole function, that had become common practice in Victoria. The leave system offered a way back into the community for the consumer, as well as a mechanism to have the person readmitted to hospital if necessary (Brophy, 2006: 470). Since the mid 1990s, however, CTOs have come to play a major role in the treatment of psychiatric patients in Victoria. Two factors in particular have led to this eventuality: the process of deinstitutionalisation and the focus on risk management.

With the closure of all stand-alone psychiatric hospitals in Victoria, CTOs have been used as a way of taking the pressure off the remaining psychiatric units that are now attached to general hospitals. One of the functions of CTOs, then, is to ensure that hospital admissions are kept to a minimum, and to enable treatment to be provided in the community setting (Brophy, 2006: 470). Thus CTOs have become a means of providing monitoring of psychiatric patients, to ensure that they receive psychiatric treatment (i.e. medication) in an era when resources allocated to the mental health sector are a distant second to that allocated to general health.

Overuse of CTOs in Victoria

“For better or for worse, whether by design or otherwise, one of the mechanisms Victoria has developed to underpin this community focus is a far greater reliance on the use of involuntary treatment orders (ITOs), particularly community treatment orders (CTOs), than occurs in other jurisdictions.” (Lesser, 2007: 7)

It is not only the far greater reliance on CTOs in Victoria that is cause for concern, it is also the increase in that reliance over time. Figures obtained in September 2008 from the Mental Health and Drugs Division of DHS show that 1951 people were on a CTO or RCTO at some time (possibly more than once) during 1995-1996. Ten years later the figure had more than doubled to 5,099, and the figure in 2007-2008 was 5,473.

Does this greater reliance in Victoria on CTOs mean that this jurisdiction overuses this treatment option? A number of factors suggest CTO overuse is a systemic problem.

First, there is the controversial practice of placing people on a CTO after their first hospital admission. Clearly, people who have had only one admission to hospital do not have a history of treatment refusal. People are therefore made involuntary patients before they can prove that they are quite capable of adhering to a treatment regime that they may conceivably agree with. Dawson suggests that 15 -25 % of people on CTOs fall into this category (2005: 45).

Second, as has been mentioned, many CTOs are discharged just before the scheduled review hearing. It has been suggested that the hearing date provides an important clinical review trigger for treatment teams. In 2006/07 3,693 cases (19.7% overall) reviews were triggered in this way ((MHRB, 2007: 42). From this it can be argued that many people on CTOs are being involuntarily treated unnecessarily and for too long. To have the review date as a trigger suggests complacent, insensitive practice. The trigger ought to be the health of the patient, not a date set by outdated legislation.

Finally, this situation appears to be exacerbated by the infrequency of legal review (Carney, 2003 in Brophy, 2006: 471; Dawson, 2005: 29). The fact that a significant number of people are released from CTOs just prior to hearings, suggests conservative treatment practices. Such practices could be challenged further by the mandatory review occurring much sooner than the present twelve months.

The Negative consequences of reliance upon CTOs

A number of consequences result from the (over) reliance on CTOs by treatment teams.

First, reliance upon CTOs has a tendency to produce less successful outcomes for the consumer. It has been known for some time that treatment is more likely to reap lasting benefits when the person enters into it voluntarily (Winick, 1994). This line of thinking conforms with the Charter, the Convention, the MI Principles and the Act. The MI Principles expressly state:

Where a person needs treatment in a mental health facility, every effort shall be made to avoid involuntary admission. (Principle 15)

Second, there is the potential problem of ‘deskilling’ among mental health professionals. Deskilling comes about when other treatment options, which are favoured by consumers, are ignored because it is simply too easy to compel treatment, in the form of medication, under the present legislative regime (Freckelton and Lesser in Brophy, 2006: 472). Eventually the option of medication becomes a fait accompli because other options are beyond the capability of treatment teams.

Finally, involuntary treatment tends to exacerbate community prejudice about people with a mental health issue: namely that people with, or who have had, a mental health issue cannot be trusted to look after their own health, and as such are a threat to the safety of the general public unless compelled into treatment.

Reform of CTO legislation

The MI Principles state in Principle 9: Treatment:

1. Every patient shall have the right to be treated in the least restrictive environment and with the least restrictive or intrusive treatment appropriate to the patient’s health needs and the need to protect the physical safety of others.

This principle is mirrored in the Charter, the Convention and the Act.

Are CTOs the least restrictive or intrusive treatment that is appropriate to all people presently on such orders? In terms of current legislation, this may well be the case, but this only reveals the inadequacy of current legislation. CTOs are overused. They are used in such a generalized way as to include people who would voluntarily seek treatment. Consumers informed the researchers that less restrictive options are not adequately explored by the Board and this view is supported by researcher observations. CTOs are often used to enforce depot injections (deep tissue injections as opposed to taking medication orally). As such they are not the least restrictive, nor are they the least intrusive means of providing treatment.

In light of what consumers tell us about their experience, this report makes recommendations as to how the Board must play a greater role in ensuring that CTOs are used only when they are the least restrictive treatment and the one most consistent with human rights obligations.

Timely Review

“We render insignificant the freedoms in issue and pay lip service to the notion that whenever possible people with a mental illness should enjoy the same rights as other members of the community, if most people who become involuntary patients are not reviewed.” (Rees, 2003: 38)

Under section 30 of the Act 1986, the Board is required to hold an initial review of an involuntary treatment order within 8 weeks from the date the order is made. In effect, anyone who is subject to an involuntary treatment order, restricted involuntary treatment order, assessment order, diagnosis, assessment and treatment order, a hospital transfer order, a hospital security order or restricted transfer order for a security patient, is to have the order automatically considered and reviewed by the Board to determine whether the treatment regime continues to be appropriate. It has been argued that the 8 week period for review is no longer an appropriate length of time for review. The changes to the mental health system, the experience of patients, and the impact of the Charter, suggest that the initial review of involuntary patient treatment orders should be conducted much earlier than 8 weeks.

One of the longest review periods in Australia

The current 8 week period provided for under the Act, is one of the longest time periods for an initial review in Australia. An initial review is required in Queensland within 6 weeks, within 28 days in Tasmania, and in the Northern Territory a review is required by legislation within 7 days from the order having been made. The law in New South Wales (‘NSW’) requires inpatient status to be reviewed by a Magistrate ‘as soon as practicable’, with the result that patient treatment orders are reviewed considerably sooner than in Victoria, and a similar system to that in NSW exists in the Australian Capital Territory ‘(ACT’).

For consumers on CTOs, the second automatic review which currently only occurs annually is likely to be of greater significance than for inpatients – relatively few people are in hospital for 12 months. It is more likely that someone will be discharged from a CTO after, for example, four months than four weeks.

It is here argued that the Victorian 8 week and 12 month time periods should now be shortened to bring them more in line with that of other states in Australia.

Changes to the mental health system since the enactment of Mental Health Act 1986

Changes to the Victorian mental health system have resulted in major changes to the consumer experience of involuntary treatment. The shift away from institutionalisation and the concurrent reductions in the number of specialist psychiatric facilities and the availability of psychiatric beds in general hospitals, have resulted in many consumers spending significantly less time in hospital as involuntary patients. It is no longer uncommon for people to spend less than one week as an involuntary inpatient. In a recent report, the current President of the Board states that the average length of inpatient stays is now between 10 to 14 days (Lesser, 2006: 8). With an automatic review of the treatment not being required for 8 weeks, the result is that many people will not have had their involuntary status reviewed at all.

This is not a recent phenomenon. The Auditor General’s Report from 2001, Mental Health Services for People in Crisis, found that 51.6% of patients were discharged within the first 2 weeks, and of the 6372 initial reviews listed for hearing, 37.8% of patients were discharged from their involuntary status prior to the hearing date. The current statistics suggest that this trend is now culturally ingrained. Indeed, it is now standard practice to use the review date as a treatment ‘trigger’ by clinicians, whereby a person is discharged just prior to review – thus denying the person the opportunity to challenge his or her treatment.

As a result of the 8 week period a large number of people will have spent time in hospital as involuntary patients without having their treatment reviewed - a significant number could have spent up to 6 or 7 weeks in hospital without ever having their treatment order considered by the Board. And many people may be subject to CTOs for longer than necessary as a result of automatic reviews taking place only annually. As Delaney (2003) has noted, some commentators have expressed concern that an earlier review period may disadvantage those who are more acutely unwell when first admitted, as they may not be ready for discharge at that stage. While disadvantage may be the result in some instances, there is a greater danger in making assumptions about the capacity of a person to participate in an earlier review. When the key issue for consideration by the Board is the person’s competence to refuse or consent to treatment, an approach which suggests that an early review is disadvantageous to a person because they are likely to be incompetent, is a troubling predetermination that the person is indeed legally incompetent.

Another consideration is the compatibility of the legislation’s 8 week period with the MI Principles. The current Law Reform Commissioner and previous President of the Board, Neil Rees, has noted that the MI Principles make it clear that any ongoing interference with the ability of a person deemed to have a mental illness to exercise the rights of freedom of movement and freedom of bodily integrity, must be subject to a timely external review. While no definition of ‘timely’ is offered, MI Principle 16.2 states that an involuntary admission shall be for a ‘short period’ pending external review, and under principle 17.2, that the review shall take place ‘as soon as possible’. With the exception of the NSW and the ACT where reviews are to be held ‘as soon as possible’, the review periods under most Australian jurisdictions, in particular Victoria, are arguably incompatible with this principle. The practical result is that many people subject to involuntary treatment in Victoria will never have the interference with their rights to freedom of movement and bodily integrity properly scrutinized. Essentially, with regards to rights in Victoria, the present system allows people with, or deemed to have a psychiatric disability, to be treated as second-class citizens.

The adoption of the Charter has also cast doubt upon the legitimacy of the 8 week review period. This Charter permits the consultation and incorporation of overseas rights documents and court decisions about the meaning of those documents. The Charter gives people the right to an expeditious hearing, and the right to liberty and security. It is arguable that the practice of an 8 week review contravenes the right to have a review as promptly as possible. Overseas precedents suggest that the review period of 8 weeks is too long. The Court of Appeal in the United Kingdom and the European Court of Human Rights have also indicated that the lawfulness of detention should be decided speedily, and that 8 weeks is too long for a review (R v MHRT London South, ex parte C (2001) Lloyds Rep Med 340; and E v Norway (1990) Eur Ct HR (Application No. 11701/85).

Treatment Plans

The Law

The Victorian law regarding Treatment Plans can be found in the Act section 19A. Under this section, the onus is on the treating psychiatrist to ‘prepare, review on a regular basis and revise as required, a treatment plan for each patient’. The psychiatrist ‘must take into account’ the wishes of the ‘patient’ and, unless the ‘patient’ objects, the wishes of any guardian or primary carer engaged in ongoing care, as well as alternative treatments, risks and whether the treatment is “only to promote and maintain the patient’s health or well-being”. It is also a requirement of the Act that a person who is the subject of an ITO must receive a copy of the Treatment Plan in writing, and have its contents explained by a member of the treating team.

The Board is required as part of the hearing process to review Treatment Plans and satisfy itself that the treating team has considered the factors above, and whether the Plan is capable of being implemented. The Board has power to order that Treatment Plans be revised by the treating team, but does not have power to vary them itself (section 35A).

The Chief Psychiatrist’s Guidelines to Community Treatment Orders (2005: 4) provide that ‘the purpose of treatment plans is to provide a brief clear statement about the treatment and services to be provided to a patient, to establish mutual expectations and in doing so, improve communication between treating teams and patients’.

The consideration by the Board of the factors set out above should increase the extent to which consumers feel their wishes are being taken into account.

Neither consumers nor stakeholders involved in this research provided significant feedback on Treatment Plans. However, the extent to which they are rigorously reviewed as part of the Board’s processes clearly may bear on consumers’ experience of the Board as an effective forum for having their voice heard.

Board members in discussion groups articulated disappointment with the general standard of treatment plans. They believed that Treatment Plans had made little impact on services at all, that those services that consistently offered a high standard of care, prior to the introduction of treatment plans already took the time to prepare good plans.

Though not as part of this research, consumers have raised concerns about the fact that carers' wishes will be taken into account unless they object, and that sensitive private information is shared. In many situations, the wishes and interests of consumers and carers are not in conflict, and carers, are often the best or only support some consumers have. However, particularly in the area of treatment choices, consumers are conscious of the power imbalance, divergence of wishes and/or sometimes intractable conflict which can exist between them and carers.

Treatment Plans in practice

Treatment Plans are not the result of a discussion held between two (or more) equal parties. There is a decided power imbalance in the relationship between a psychiatrist and a person who is subject to treatment by law. The consumer’s ability to make demands is severely limited by the nature of the relationship and further diminished by the wording of the Act: that the psychiatrist ‘must take into account’ the consumer’s wishes. There is no obligation on the psychiatrist to ultimately follow the consumer’s wishes in the Treatment Plan, and the Board has no power to vary them. The power imbalance and problematic onus under section 19A also mean that there is a risk that the wishes of carers may too often be prioritized. Treatment Plans are most definitely not Advance Directives.

Advance Directives

Advance Directives are documents that are initiated and controlled by the consumer. Briefly, an Advance Directive is a document that consumers can create while they are well (that is they possess ‘capacity’ in legal terms), which stipulates all that they would like done for them in the event they become unwell later on. This can involve specifying which medication they prefer, which type of action is to be avoided (such as seclusion), and what needs to be done on a practical level (such as who will take care of their children, who will ensure their bills are paid, and so on). Advance Directives allow the person to take control of their health, which is a crucial part of recovery. Advance Directives acknowledge that the person is an expert about his or her own mental health – and knows what works and what doesn’t.

Essentially the difference between Treatment Plans and Advance Directives is how best to assist a person with a psychiatric disability – and how to meet the increasingly great obligation to give optimum effect to people’s human rights. Treatment Plans convey the view that a person with a psychiatric disability is incompetent and must rely on decisions made by others – this is also known as substituted decision making. Advance Directives, on the other hand, allow consumers to engage trusted others to offer their support – a supported decision making model.

Anti-discrimination principles support the introduction of Advance Directives. Under the Medical Treatment Act 1988 people with a pre-existing medical condition can decide in advance to refuse treatment even if that might result in death, provided they have decision-making capacity. People with mental illness cannot do this. The Charter and the Convention, in fortifying the obligation to provide least restrictive means of providing treatment and optimizing consumer choice, greatly strengthen the argument for implementation of Advance Directives.

Therapeutic Jurisprudence

“Enjoy your chicken Parma for lunch”[Researcher Observations]

This quote is from the Chairperson to a person involuntarily detained on a CTO upon the conclusion of that person’s review hearing, whilst handing over the written decision that confirmed continued detention. Although researchers observed some Boards as skillful and engaging warmly with the person to develop a comfortable report, such superficial pleasantries, often made by members of the Board at the conclusion of hearings are glib statements in the context of the person being stripped of human rights. Is this what therapeutic jurisprudence amounts to?

What is ‘Therapeutic Jurisprudence’ and how did the practice come about?

“Therapeutic Jurisprudence grew out of mental health law . . . it looked at the way in which a system that is designed to help people recover or achieve mental health often backfires and causes the opposite. Therefore a perspective developed recognizing that the law itself . . . sometimes functions as an antitherapeutic agent.” (Wexler, 2000: 128-9)

For many years consumers, academics and mental health professionals have been concerned that the court or tribunal hearing process is itself detrimental to the mental health of the person having his or her treatment status reviewed. The way the legal system operates has come about, in part, because of the way the law views itself, namely as an impartial arbiter of justice. The notion of justice was traditionally viewed as being one that came about through rigid adherence to rules and impersonal conduct. As a consequence of this view, courts and tribunals are often places where a person’s emotional well-being is not considered in any meaningful way.

The negative effects on a person’s well-being were viewed as ‘largely irrelevant’ (Winick, 1997: 185), the price paid to get to the truth of the matter. This idea has been challenged in recent times. In the early 1990s a number of researchers, predominantly in the United States, became interested in the effects of this tendency of the courts to ignore the way legal processes impacted upon the health of people in attendance. This research, which suggested corrective measures to inappropriate practice, is known as therapeutic jurisprudence.

“Therapeutic jurisprudence is the study of the role of the law as a therapeutic agent. It looks at the law as a social force that, like it or not, may produce therapeutic or antitherapeutic consequences. Such consequences may flow from substantive rules, legal procedures, or from the behavior of legal actors (lawyers and judges). In other words, one may look at the law itself as being a therapist—or at least a therapeutic agent or tool.” (Wexler, 1992: 32)

Therapeutic jurisprudence has become a very influential concept in the everyday running of courts and tribunals. Whilst therapeutic jurisprudence does not override other concepts such as procedural fairness and justice, it is purported to be complementary to these objectives. Officers of the court – namely judges, tribunal members, solicitors, advocates – are now aware that the law ‘produces behaviours and consequences’ (Wexler, 2000: 125) and given this understanding therapeutic jurisprudence recommends that hearings ought to be conducted in such a way as to promote the health of those in attendance.

How should Board hearings be conducted to promote the health of those in attendance?

“People’s evaluations of the fairness of judicial hearings are affected by the opportunities which those procedures provide for people to participate, by the degree to which people judge that they are treated with dignity and respect, and by judgments about the trustworthiness of authorities. Each of these factors has more influence on judgments of procedural justice than do either evaluations of neutrality or evaluations of the outcome of the hearing.” (Tyler, 1996: 12)

To better understand the implications of a theory such as therapeutic jurisprudence, it is useful to apply the theory to the practice of running of a tribunal – in this case the Board. In what ways can the Board operate so as to act as therapeutic agent, and not harm those in attendance?

The Board exists to review the treatment decisions of a treating clinician. It is therefore important that the treating clinician’s decision to involuntarily treat the person is the focus of the Review. The person receiving involuntary treatment must feel as though the Board is questioning the veracity of treatment decisions and professional judgment, and not merely confirming the clinical opinion of the medical professional. This is part of what has been referred to as the ‘consumer-centred hearing’. Other examples of the consumer-centred process which influenced this research project are:

• Providing consumers with information about the review process in a form that they can understand

To be able to properly participate in the review process a person needs to be provided with information, prior to the hearing, about his or her rights, and about the review process. This information needs to be provided in a format that they can easily understand and remember (Freckelton, 2003: 46) and needs to cover the different stages of the review process. A written Statement of Reasons must be provided to consumers and / or their advocates after every hearing.

• Allowing the consumer to speak first

It is important that the Board encourages the consumer or the representative to speak first at the hearing. This may be crucial if the person is medicated and the ability to concentrate has been diminished, but it is also an assurance that the treatment team will need to respond to the person’s point of view and not vice versa. It acknowledges that the person’s voice, experience and perspective are the most important aspect of the hearing.

• Ensuring consumers are heard

The Board appeared rushed and keen to resolve all the matters before lunch. As the involuntary patient was exiting the room, and within earshot, one member stated to the others that she had to leave early. [Researcher observations].

Speaking first is one thing, being heard is another. The Board should function in such a way as to be able to spend the appropriate amount of time on each individual hearing. There is a tendency to schedule too many hearings in the one session. This can mean that the hearing is rushed, and that consumers leave the hearing feeling as though they were unable to properly present their version of events. A rushed process can lead to a sense of predetermination by the Board (Freckelton, 2003: 47).

• Granting the consumer or their representative complete access to the clinical file

The Board must conduct a fair hearing. It also needs to conduct itself in such a way as to allow the person to feel that he or she has been given a fair hearing. The person must have access to the same information provided to the Board. Although it is acknowledged that there may be exceptional circumstances when it is inappropriate for a person to receive part or parts of the file (due, for example, to confidentiality issues or to the extreme distress that it may cause), the inverse may also be the case, and failure to provide proper access may itself be the cause of unnecessary anxiety. Crucial evidence is contained in the clinical file and in the clinical report prepared for a Board hearing. Sufficient time to prepare a response to the file is necessary to ensure a fair hearing.

• Providing access to representation

Given the human rights issues at stake and the fact that many consumers who attend review Board hearings do so adversely affected either by medication or symptoms, it is recognized that representation in the form of advocacy or legal representation is necessary to secure a fair hearing (MI Principles, Principle 18).

• Considering the effects of the hearing ritual

Other aspects of how hearings are conducted – or rituals – clearly impact on how consumers experience the process. Level of formality, the physical and other logistics and certain aspects of “ceremony” or process require consideration (Tait, 2003).

The pros and cons of therapeutic jurisprudence

Critics of therapeutic jurisprudence are concerned that the theory will encourage tribunals to take on the role of social worker, and thus become involved in the person’s life far beyond the date of the hearing. The proponents of therapeutic jurisprudence are eager to suggest that the theory does not promote greater paternalism. On the contrary, proponents of therapeutic jurisprudence advocate for increased autonomy, decry the use of stigmatizing language, endorse the right to refuse treatment, and call for very narrow definitions of mental illness so as to reduce interference from government authorities (Winick, 1997: 191).

From the point of view of advocacy, therapeutic jurisprudence poses a number of problems. It can be argued that therapeutic jurisprudence confuses the role of the tribunal. One particular problem is the tension that therapeutic jurisprudence creates between the ideals of promoting health and defending rights. From the perspective of rights protection, therapeutic jurisprudence can be seen as a threat to comprehensive representation, as the advocate or legal representative may be encouraged to feel as though it is not in the best interests of the client to have the strongest defence advanced (Diesfeld, 2007: 570). It has been said by a number of critics of therapeutic jurisprudence that it has ‘not yet provided a way of choosing among competing values or of balancing other values against therapeutic values'' (Kress, 1999: 556). This is a real problem when the Board is the only avenue available to a person to argue against the treating team’s decision that they are in need of treatment.

Lawyers apply an instruction model of advocacy and do not act on best interest, perceived best interest or take instructions from family or carers. It is not the role of the representative to question the value of the client’s opinion, but, rather, to present it to the best of his or her ability. Clients of the Centre often convey great appreciation of an advocate who is committed to rigorously advocating their views in a context where most others adopt a “best interests” perspective.