Mental Health Legal Centre Inc.

Lacking Insight - The Involuntary Patient Experience

PART 3: THE INVOLUNTARY PATIENT EXPERIENCE

Inquisitorial v. Adversarial 

The Board: A Rubber Stamp?  

Access to Information  

Consumers’ Level of Understanding of the Review Process 

Rituals of a Hearing 

The Experience of Rural Consumers 

The Experience of Koori consumers  

The Experience of Consumers from Culturally and Linguistically Diverse Backgrounds

Effects on Consumers’ Lives

Consumer Suggestions for Improvement

Summary of Consumer Views

It is seldom the case that the opinions of people made involuntary patients in the state of Victoria are heard. What follows is taken from consumer interviews of what it is like to attend a Board hearing.

The researchers analysed all interviews, extracted the common themes and provided a summary and representative comments of interviewees in relation to each. Also included are relevant observations made by researchers who sat in on Board hearings.

We cannot discount or disregard these experiences. Each quote was carefully selected as an example of an issue, concern or theme resonant in interviews, both stakeholder and consumer. Observations are included only when significant and necessary to augment the consumer experience.

Inquisitorial v. Adversarial

Us against them

The Board is an Australian tribunal that is empowered to operate in an investigative or inquisitorial manner. This means it does not just wait for evidence to come to it. The Board is supposed to make enquiries to ensure there is adequate evidence to make a decision. So in principle it is not adversarial; it does not rely on two parties having an open contest about the evidence. Despite this, the setting is described by consumers as oppositional. This is not altogether surprising as a review or appeal hearing to assess any change of a person’s involuntary order is necessarily opposed by the treating practitioner, otherwise the practitioner would have discharged the order prior to the hearing.

Participants involved in this study have identified this oppositional setting as intrinsically unfair and have reflected upon their subsequent sense of powerlessness and lack of equity in the process. It is therefore a challenge for decision makers to encourage participation, to address the power imbalance and to both emphasise and ensure that the process is impartial and fair.

The Board: a Rubber Stamp?

Far from viewing the Board as a forum to investigate the appropriateness of their involuntary patient status, many consumers see this particular tribunal as the venue for an unfair adversarial contest. It is seen as unfair because the views of one side – those of the treating clinician – appear to be given greater weight in the Board’s decision-making process; so much so, that some consumers see the Board as little more than a means of lending legitimacy to the opinion of the treating clinician.

Many consumers spoke of the Board as a rubber stamp, others called it a ‘kangaroo court’, to them this meant that the decision was made prior to the hearing.

Various factors in the way the Board conducts itself encourage consumers to view the hearing process in a negative way.

Perception of pre-determined decisions

The Board, like all other tribunals, has developed particular ways of operating that its members believe to be the most efficient way of fulfilling its responsibility.

There is no doubt that some of these practices are cause for consumer concern. These practices may contribute to the fact that many consumers have very little faith that the Board will act to uphold their rights.

One factor in particular seems to contribute to the belief that the Board is not adhering to its proscribed role of independent review.

There is foremost a belief that the treating psychiatrist’s report carries so much weight as to render the review process little more than an affirmation of that report.

Assumptions about professional relationships: the clinician and the psychiatrist member

It is suggested that the importance of professional courtesy appears to play a large part in the decision-making process of the Board. There is particular concern about the relationship between the treating clinician and the psychiatrist member.

Consumers believe that the psychiatrist on the Board is almost professionally compelled to agree with the diagnosis of the treating clinician.

Because of this distrust, consumers say they are more inclined to discuss their circumstances with the community member, believing that he or she is the most likely of the three Board members to listen to the consumer point of view.

Assumptions about professional relationships: the clinician and the case manager

To some consumers the review process appears to be a forum for confirming the treating clinician’s opinion rather than offering any objection to it. There is widespread belief among consumers that a case manager has to support the opinion of the psychiatrist with whom they work on a professional basis so as not to jeopardise that relationship.

It’s all in the report

To consumers it appears that the psychiatrist’s report is the only thing that matters to the Board in formulating its opinion. Board hearings have taken place where clinicians were either not asked to offer supporting evidence for their diagnosis or were not asked to respond to a consumer’s version of events. These hearings were also marked by a perceived lack of interest in the testimony of consumers.

In NM’s hearing, in which the clinician presented his evidence by telephone, the clinician spoke first and then ended the telephone call to attend to another matter. The consumer then offered the Board an alternative view of particular events that was not followed up. There was no opportunity for the consumer to challenge the clinician’s evidence.

This consumer’s belief that his version of events was given less weight in the finding of the Board was supported by the Statement of Reasons - requested after the hearing – that contained information that was not discussed during the hearing proper, i.e. when the consumer was also present. This led NM to conclude that the treating clinician had discussed his situation before the hearing and that this had rendered irrelevant the material that was provided during the hearing.

The consequences of the Board hearings appearing to be predetermined

• Consumers may not see the point of engaging legal representation

The belief that Board decisions are based solely upon the opinion of the treating clinician leads consumers to engage with the Board in a way that reduces the likelihood of a successful outcome. Some consumers stated that it was because of the ‘already settled’ nature of the Review that they had never bothered to engage legal representation at a Board hearing.

Whilst very few consumers have their involuntary status altered by the Board, the chances of such an outcome are markedly increased when legal representation is engaged. Between March 2004 and March 2005, and March 2005 and March 2006, for example, people with legal representation were discharged at a rate more than three times greater than unrepresented consumers (Board Statistical Reports provided to advocates at Legal Service Liaison Meetings).

• Consumers don’t attend the hearing

Perceptions of a predetermined decision may result in consumer non-attendance at Board hearings. There is a high level of non-attendance by consumers at Board hearings (47.8% in 2006/07) ((MHRB, 2007: 28), and the Auditor General raised concern about this in the 2002 report Mental Health Services for People in Crisis (8). Generally, when consumers do not attend their hearing they have very little chance of having their status altered. Thus a sense of predetermination may result in the continuation of an order regarding the consumer’s treatment status, regardless of the needs of that particular consumer. It also certainly reduces the consumer’s level of participation in the treatment, and the likelihood of one of the possible changes other than discharge occurring. Some non-discharge benefits of a hearing can include early review, a change in treatment regime, a revision of a treatment plan, a favourable decision on a key issue such as whether the consumer actually poses any risk to anyone else, or simply having his or her views considered by an independent body.

Access to Information

Access to information is an important part of the Board process. Once a hearing is scheduled the person has the right to read and get a copy of any documents that the Board will consider at the hearing. These documents must be made available at least 24 hours before a hearing. The documents include a Report on Involuntary Status prepared by a treating practitioner for the Board and should include issues relevant to the criteria for involuntary treatment and a treatment plan.

Access to information, which is timely, full, and frank, allows the consumer to know about the circumstances that have resulted in the involuntary detention and thus provides the opportunity to properly present the consumer’s own version of events to the Board. This may involve calling upon witnesses and independent opinion. Information about the Board’s processes is also important as it allows the consumer to better understand the workings of the Board and the reasons for its decisions. Access to information empowers the consumer before, during, and after the hearing. It is no surprise that consumers are particularly concerned about the lack of access they receive, both to personal and procedural information.

Access to a consumer’s file: an issue of natural justice

Many of the concerns raised by consumers involve important applications of principles of natural justice. Natural justice has been described as:

The right to be given a fair hearing and the opportunity to present one’s case, the right to have a decision made by an unbiased or disinterested decision maker and the right to have that decision based on logically probative evidence: Salemi v Mackeller (no 2) (1977) (Nygh & Butt, 1998)

Consumers told researchers that gaining access to their case file is a major concern. Some consumers stated that they had no knowledge of their right to access their file; others reported that they were not provided with enough time to understand the file’s contents. Some people, aware of the contents of their file, were disturbed that the file had documents missing. People were not generally aware of the exemption provisions for some documents.

One of the demands of natural justice is that the parties are allowed to comprehensively present their case. No access or inadequate access to their file is likely to mean consumers are effectively denied this opportunity.

Some consumers are unaware that they have a case file

The Board assesses the appropriateness of a person’s treatment through questions asked at the hearing. The focus of the questions is to establish the level of insight the person has into his or her illness and the need for treatment. It is difficult for the person to argue against an alleged lack of insight without knowledge of the contents of the file and report. The information the Board receives from a consumer is seriously lacking when a person has limited knowledge.

Some consumers don’t know they can access their file

A number of consumers said that they discovered they were able to access their file after having already attended a number of Board hearings.

Clearly some consumers become aware of their rights by chance. Rather than empowering people in their appearances before the Board, the process can actually present obstacles which hinder the reception of information.

Some consumers’ lawyers are limited in their access to their file

As well as having difficulty accessing information about their own treatment, a number of consumers reported problems that their legal representative had gaining access to their case plan file.

Some consumers are not granted enough time to look through their file

The most frequently cited complaint about the system of review was that consumers were given an inadequate period of time to see their file or the report provided to the Board.

Viewing the case file shortly before attending a Board hearing can mean a consumer is still affected by the material during the hearing.

The practice of viewing the file varies from clinic to clinic. The most common practice is that people view the file with their lawyer, if they have one, or their case manager. Sometimes if consumers are alone they are not permitted access to their file. This practice seriously impacts upon the person’s ability to prepare a case for the hearing.

As one consumer experienced in Board hearings notes:

The consequences, then, of inadequate preparation are not only that the person is unable to put forward the strongest case for release from the ITO, it also means that the person may be placed in a situation that causes much distress. As such, the Board process may be partly responsible for the demeanor upon which it bases its conclusions.

It seems that too many consumers travel through the system never exercising their right to read their file, either because they do not know about this right or are not provided with the opportunity to do so.

Consumers’ Level of Understanding of the Review Process

From the interviews it seems there is a lack of knowledge about, or inability to act on, a lot of information that could make Board hearings more participatory and less demoralizing. The consequences of this information not being supplied, or being ineffectively supplied, not only undermine natural justice but also cause unnecessary confusion and frustration.

‘No idea what to expect’

An attendance at a Board hearing can be a very challenging experience for a person who has little if any understanding of the Board process. This can result in trepidation and anxiety.

Some consumers understand the Board’s role but do not know how it goes about carrying it out. NM didn’t know that the Board would be reviewing his clinician’s diagnosis of him by evaluating his mental state on the day. Had he have known this he would have conducted himself differently: believing the Board would take away all the evidence and review it later meant that NF attempted to present as much material as possible, which made him appear disorganized.

Who are these people?

Consumers also professed to having little understanding about the different roles of members on the Board. There was particular confusion about the role of the community member.

This situation is not helped by reluctance on the part of some members to introduce themselves and their role on the Board.

No explanation given about the legal criteria for involuntary treatment

The Act section 8 (1) contains the five criteria that must be established for a person to be treated as an involuntary patient. Given that these criteria form the basis of the Board’s decision, consumers rightly believe that it is necessary for the Board to inform them of the criteria and to actively show how it had been applied in their situation. This is especially important given the low rate of legal representation before the Board.

Difficulty understanding the Board’s assessment and concerns about the health of the consumer

The importance of the Board having an educative role is that it may be one way (among many) that the consumer comes to better understand the events and behaviour that the clinicians believe can make them unwell. This information may provide consumers with the opportunity to address these concerns and to empower themselves to the point where they are no longer assessed as needing involuntary treatment. It may lead to greater understanding of their diagnosis or greater “insight”.

Need for assistance in understanding information

Time and time again consumers say that the provision of information on its own is not an effective way for them to gain an understanding of the Board process. Many consumers emphasise the importance of receiving assistance to understand any written information that is provided.

There were pamphlet stands in the waiting room but no booklets or pamphlets relating to the Board process. A letterbox labelled ‘Complaints’ was empty apart from some discarded sweet wrappings. There were no Victoria Legal Aid or Mental Health Legal Centre posters. Outdated meeting notices were on display. [Researcher Observations]

Lack of information about legal representation

A number of consumers said they were unaware that they had a right to legal representation to assist them with the preparation of their case and on the day of the hearing.

While access to information about legal representation is crucial, consumers also need assistance in securing that representation. When a person is about to come before the Board, he or she may not be in a position to actively pursue all the relevant rights. It is at such times that legal representation ought to be provided, or at the very least assistance provided in attaining legal representation.

In some cases the fact that they are legally represented is due mainly to the type of person they are, rather than as a result of a system that ensures rights protection.

Were you informed about your rights to legal representation before the Board?

I was aware of that already, yeah. I was aware [of] that through documents . . . I'm just that type of person – I’m aware of the services available. . .

So you were proactive. It’s more about that you proactively find out that sort of information?

That’s right, that’s correct yes

Were you able to access legal representation at that time?

Yes I was yes. I found the Mental Health [Legal Centre].

NM - Consumer

The need for information to be provided on an ongoing basis was also raised by consumers, as their mental health may make it difficult for them to retain information.

Lack of knowledge about the Statement of Reasons and about appeals

A Statement of Reasons, as previously explained, is a document that sets out the reasons why the Board has reached their decision. Written reasons must be requested in writing within 28 days of the date of the decision. A Statement of Reasons ought to include the evidence that has been relied upon, and why it was that ‘weight’ or importance was given to that evidence. A Statement of Reasons is especially important if a consumer appears before the Board when the consumer is not in a position to clearly remember the details of the hearing. Most of the consumers interviewed for this project were unaware that they were entitled to receive a Statement of Reasons.

Similarly, people reported having little or no knowledge about the appeals process. It is an important aspect of all courts and tribunals that their decisions are open to the scrutiny of review.

Rituals of a Hearing

Rituals in a legal setting establish authority and power. The rituals that take place in a court signal to people the importance of the proceedings, the hierarchy of those involved, and demand adherence to the rules and findings of the court. Elements that constitute the ritual of a Board hearing include all the events that take place before, during and after a hearing, the manner in which they occur, the order in which they occur, and the venue where they take place (Tait, 2003). As occurs with any other tribunal, the Board has developed ways in which it conducts itself that have come about either out of necessity or habit. Of particular concern to consumers is the way the tribunal space is ‘used’ and ‘owned’, and the order of the speakers who appear at the hearing.

An overpowering, oppositional setting

Consumers wait outside the hearing room until Board members are ready to receive them. The Board is already seated in the hearing room. For consumers this contributes to the feeling that they are entering a space that ‘belongs’ to the members. This gives people the impression that they commence the hearing already ‘on the defensive’ or at a disadvantage. Sometimes introductions are not offered by Board members, which further diminishes the consumer’s sense of belonging and ability to comprehend proceedings.

The configuration of the seating in most Board hearings is of concern to many consumers. The typical set-up, with Board members on one side of a table and the consumer on the other, is viewed as an attempt by members to assert their authority over the proceedings and to leave the consumer feeling small, even ‘guilty’. In general, the layout of the room is viewed by consumers as an attempt to put them in their place. Rather than a way of facilitating discussion, the seating arrangement is viewed as a means of allowing greater scrutiny.

Nameplates, with the initial of the first name and surname are produced by some Board members. They were observed to be in front of all members on some occasions though often only in front of one or two members. One community member stated her name in full at the beginning of the hearing and pointed to the nameplate inviting the person to read it. Observers did not note any hearings in which consumers were asked whether they would like paper or a pen to assist them with taking notes or to write down the names of the members. Board decisions are signed; however the signatures are not always legible and the names and titles are not printed on the document.

Board members arrived through the front door of the clinic and walked through a waiting room occupied by those awaiting hearings. They were acknowledged by the receptionist. It was apparent that she knew them. The secure doors were automatically opened to allow them to enter. We remained locked outside. It made us feel like outsiders and that they (members and staff ) were all together. [Researcher Observations].

An overly formal process

The formality of the hearing is determined by the manner in which people act and speak and the adherence to a procedural method of conducting proceedings. The general feeling among consumers is that the formality of the Board – typified by a high level of impersonality - contributes to the Board having the atmosphere of a court. Consumers speak of a ‘distance’ between Board members and those appearing, and of a ‘coldness’ that accompanies proceedings. These negative attributes can make it difficult for consumers to feel comfortable enough to successfully communicate their point of view.

Some of the rooms in which Board hearings are conducted are large and, because of this, ‘intimidating’ places. This contributes to the formality of the hearing, and to the belief on the part of consumers that a Board hearing is about punishment, not about reviewing their treatment. Some of these rooms obviously had other uses; researchers observed settings that were cluttered with computers and other equipment [Researcher observations].

How the Board members themselves present can increase the sense of unhelpful formality:

Less formality would help to make the hearing less stressful for consumers. One innovative solution is to have the members meet with the consumer prior to the actual hearing, so as to make the experience less overwhelming.

This suggests that a therapeutic approach is not being achieved. People demand to be seen as individuals, and for decisions made about their treatment to be made in a process that is conducive to the improvement of their health, rather than a detriment to it.

Other features of the hearing situation

Just as important as the physical space in which the Board hearing takes place are other dynamics. These dynamics, which include factors such as salutations, developing rapport, the warmth and politeness of Board members, the speed of the hearing, whether explanations of terminology are provided, and whether or not the consumer is represented by an advocate or legal representative, have a great impact upon the perceived formality and inclusiveness of the hearing process. These important factors are discussed in more detail later in this Section (See ‘Training of Board Members’ and ‘Summary and Discussion’).

Order of speakers – often the consumer speaks last

Consumers reported a tendency for Board to only permit the consumer to speak last – and they report being confused by a process that has not been explained in any great detail, if at all. It means that people are not able to present their version of events in the most favourable light. People also reported that speaking last gave them the impression that their opinion was not highly valued, appearing more as a token gesture than a genuine desire to listen.

This view may also be heightened by Board members cutting short presentations by consumers, often hushing people or saying ‘you’ll have your turn soon’ in a disciplinarian manner. [Researcher Observations].

As the Board process is a flexible one, where the order of proceedings can vary from review to review, there is no reason why a person should not be encouraged to speak first in a proceeding that is about that person’s own health.

Attention to the comfort of consumers attending a Board hearing

Board members need to ensure that people appearing are made to feel as comfortable as they can be during what is often a difficult experience. Consumers were adamant that members should display all the qualities of courtesy that they would show in any other social setting.

Common courtesy was emphasized by a number of consumers who were concerned that the Board’s approach – considered impersonal and detached - was itself contributing to the discomfort of people attending a Board hearing.

With or without the framework of therapeutic jurisprudence, basic courtesies ought to be extended to all consumers by Board members.

There were few occasions when people appearing were offered a drink of water. No observations were made of a person in attendance being offered materials to take notes during the hearing. In many settings, coffee, tea and biscuits were provided to Board members but not to other participants in the hearing.

In the introduction the legal chair asked the person how they wished to be addressed, she said ‘Ms S.’, and the member respected this request throughout the hearing. The psychiatrist member, however, immediately upon introduction addressed her by her first name, in an abbreviated and endeared form, and continued to do so throughout the hearing. [Researcher Observations].

Process too rushed

Consumers want the hearing process to be slowed down.

The speed of the hearing and the order of speakers is an issue for many consumers. A fast pace can preclude comprehension and a sense of involvement. When appearing before the Board, consumers are often experiencing the side-effects of high doses of medication. Undoubtedly, this makes the hearing difficult to follow. Short adjournments may assist people to concentrate.

The Board showed impatience with B who had some trouble speaking and was difficult to understand. [Researcher Observations].

Kept waiting . . . and waiting

There are ways that the Board conducts hearings that may exacerbate a person’s lack of comprehension of the process. An example of this is when consumers are sometimes kept waiting for an extended period of time as it is standard practice to schedule a number of hearings at the same time of day because the Board has no way of telling how long each hearing will last. Often this procedure happens without any explanation being given for the subsequent delay that may occur.

Body language of Board members

As well as displaying traits of common courtesy, consumers emphasise that it is important that Board members make eye contact with them. Eye contact assists to develop trust between people. Making eye contact is one way of showing that you are listening to a person as they speak and that you are engaged with what they are saying; other ways observed by the researchers were nodding and making encouraging gestures. Active listening is a skill that requires patience and time.

The combination of little eye contact, the hurried nature of proceedings, and members appearing to have been wearied by the prior proceedings, tends to give consumers the impression that their matter is not important.

Although nodding and making encouraging noises whilst the consumer was speaking, the Chairperson was also speaking to co-members and filling in forms. [Researcher Observations].

The Experience of Rural Consumers

Consumers in rural Victoria express similar concerns about the Board process to their metropolitan counterparts. However, one aspect that rural consumers discuss that appears to differentiate their experience is the heavy reliance upon technology in Board hearings. Of particular concern is the matter of video- and tele-conferencing.

The problems created by an over-reliance on technology are numerous. Consumers speak of a fractured and disorientating experience that has a tendency to exacerbate the symptoms they are experiencing. Tribunal hearings that rely on technology are described as having a tendency to agitate and increase feelings of isolation. One consumer recounts the experience of a video-conference as being akin to ‘make-believe’.

The Experience of Koori consumers

Promotional material was distributed through clinics, Victorian Aboriginal Legal Service and specialist Koori mental health service and many attempts made by researchers to speak with Koori consumers; however, there was no response. Two Koori case managers were interviewed at the Koori mental health service in Melbourne. They told researchers that they believed many Koori consumers chose not to attend Board hearings primarily because they did not question the intervention of psychiatric services in their lives, most had been in and out of hospital and had little confidence to speak for themselves. Both case managers worked with the service for a period of years and were known to many of the families; much of their work was to assist the person and the community to understand and accept mental illness. They believed that their role included advocating for the consumer together with the person’s family and to act as a conduit between the psychiatrist and the consumer and their family. They expressed the view that, if there were issues of dispute, these were resolved with the psychiatrist who had been with the service for many years. They were confident that the psychiatrist had a good working relationship with them and was respected by consumers and that most decisions about treatment and support were made collaboratively, away from a Board hearing.

The Experience of Consumers from Culturally and Linguistically Diverse Backgrounds

Consumers from culturally and linguistically diverse backgrounds interviewed told researchers that they had managed to overcome the barriers to participation in hearings (and thus were strong enough to participate in the research project). However they were concerned that were the minority and most people would be intimidated and bewildered by the process. They emphasised the importance of an advocate or support person to assist in the appearance for people unfamiliar with the way that mental services were delivered and the legal framework. They believed that people would be intimidated and frightened by the powers of the Board which would appear to them as a court. They emphasised the importance of interpreters, trained in the person’s dialect and available before the hearing, allowing the consumer to develop rapport with them.

Effects on Consumers’ Lives

The effects on a person’s life of attending a Board hearing can continue long after the Board has made a decision regarding matters of status and treatment. People tell of a process that has left them with a sense of powerlessness that has affected the way they view their life.

A disempowering effect

People emphasise that the sense of disempowerment is accentuated by a process that treats people more like an object than a person.

Lasting distress as a result of a hearing

Consumers spoke about the sense of powerlessness evoked by the Board process. They also spoke about the effect of a decision by the Board on their professional and personal lives.

Another consumer, this time from rural Victoria, spoke about the distress that the Board hearing caused her. Her distress was a product of the entire hearing process – before, during and after. It is important that all professionals involved in the hearing inform consumers of important information regarding their treatment in a sensitive manner.

Due to the distressing nature of Board hearings, consumers speak about the need for all professionals involved in the process to understand the consumer’s need for ongoing support after the hearing has taken place.

Maintenance not improvement, of the consumer’s situation
Ideally, the effect of a Board hearing will be a beneficial one, where a person gains self-knowledge and learns about the services that are available in the community. Unfortunately, this ideal occurs all too infrequently, and consumers tend to view the process as one that perpetuates, rather than improves their situation.

As well as raising a number of criticisms of the Board process, consumers were also keen to offer suggestions about ways in which their experience could be improved. Legal representation, increased involvement of community members, second opinions and Board member training were raised by a number of interviewees.

Consumer Suggestions for Improvement

Provision of legal representation/advocacy

Consumers experience Board hearings as stressful events, and because of this they find it extremely difficult to present their viewpoints in the best light, or sometimes forget to raise important matters. Advocacy, be it in the form of legal representation or having someone such as a friend or family member at the hearing who can speak on their behalf, is highly valued by most consumers. Consumers are adamant that advocacy is a vital way of ensuring that rights are upheld and the voice of the consumer is heard by Board members. Advocacy is viewed as an important way of empowering the consumer and ensuring that the Board is held to account.

Increase the participation by community members

Presently in Victoria each Board is comprised of three members: a psychiatrist, a lawyer and a member of the community. At the moment the role of the community member is seen as problematic by many consumers; often the community member is viewed as playing a passive role and not contributing to the overall process of review.

This isn’t to say that consumers can’t see the potential for the role of the community member to be one of increased participation and information provision. Some consumers note that at times their appearances before the Board have been marked by particularly helpful community members, who have been able to suggest courses of action that consumers can take to improve their situation in the community.

Consumers envision the role of the community member, then, as one of contextualising the person appearing at the Board – as a member of the community, with diverse interests and needs - and providing individual specific advice.

Many consumers suggested that the community member ought to be a person who has a lived experience of mental illness. The role of the community member then becomes an ongoing educative one in regard to peers on the Board. Consumers believe that the community member has a role in teaching the Board about service options.

Obtaining a second opinion

Consumers were keenly aware of the difficulty challenging their psychiatrist’s evidence and saw the value of independent second opinions.

RM was exasperated by the difficulty in getting an independent assessment:

To challenge the opinion of the treating psychiatrist it is necessary to obtain an independent assessment from an equivalently experienced practitioner. Although the right to a second opinion is well articulated in information provided to patients in the Mental Health Regulations 1986, Chief Psychiatrist Guidelines (2005) a second opinion is immensely difficult to organize. There are various impediments:

• Cost: consumers subject to orders are public patients and do not have the ability to pay. They must find a psychiatrist who bulk bills. Though Medicare will cover the cost of an assessment appointment, doctors cannot bill Medicare for writing the report so a grant of aid is essential, or consumers have to cover that expense themselves. Information on practitioners who bulk bill is not known to the public, so consumers rely upon their networks to track down such practitioners.

Legal Aid may be available if their merits criteria can be met for an independent report if the person has a matter listed before the Board. However, often consumers wish to seek a second opinion to prevent involuntary treatment.

• Lack of availability: there are long waiting lists and an over-demand and under-supply of private practitioners who are prepared to provide assessments.
• Bias: an independent assessment does not carry as much weight with the Board as the opinion of the treating practitioner. This may be questionable given that the treating practitioner may have only just met the patient prior to the hearing. The current practitioner is perceived by the Board to be able to provide extensive and intimate knowledge of the person’s mental health - both current and historic and social circumstances. While the Victorian Board has an inherent power to order independent opinions and has been known to do so, this is extremely unusual (Delaney, 2003: 79).

• Lack of full information: an independent practitioner rarely has access to the person’s file and so may not be cognisant of issues that may be raised at the hearing.

The resource implications of more extensive access to independent second opinions are clear – but their value and importance in ensuring that people have a genuine opportunity to challenge involuntary status demands investigation of creative options. It is noteworthy that in the UK a second opinion is available at the expense of the State for every person detained.

Training and review of Board members

A review mechanism for the Board is required. Ongoing review of Board members would contribute to the efficacy of the Board. Consumers would have greater confidence in an institution that is subject to scrutiny and whose members are required to possess current knowledge about medications, and about the most effective ways of engaging with consumers whose treatment they are reviewing.

The experience of attending Board hearings means that consumers are in an excellent position to make suggestions regarding the training and performance of Board members. Consumers are the audience to whom the Board is attempting to communicate. They are the recipients of decisions, and they (along with their advocates) are the only participants not employed by the DHS.

Educating Board members about the consumer experience

It is important that Board members are aware of what it’s like to appear before the Board. Consumer education is an important way of giving members another perspective on the process. Listening to, and hearing the views and experiences of those who have appeared before the Board, may assist members to conduct proceedings in a way that can be better understood by consumers, and not be a detriment to their health.

Summary of Consumer Views

In summary, consumers raise the following issues.

Inquisitorial v Adversarial, The Board: a ‘rubber stamp’?

• Consumers experience the Board hearing as an adversarial forum;

• Far from fulfilling its inquisitorial function, consumers told researchers that it is their experience that the Board merely confirms the view of treating clinicians;

• Consumers experience the Board as having made a decision prior to the commencement of the hearing;

• Consumers experience the Board members as only seriously investigating and giving weight to the evidence of the treating team.

Access to information

• Access to information (in the person’s own case file and about Board procedures) is a problem. As a consequence, consumers describe a system that poses problems for the concept of natural justice; they do not experience a system that presents all parties with an equal opportunity to present their case;

• Consumers report not even being aware they can access their files;

• Consumers report being given inadequate time to access their file and to prepare their case;

• Consumers request assistance in accessing and understanding the contents of their file and advocacy or legal support to evaluate the evidence.

Consumers’ level of understanding of the review process

• Consumers report a lack of information about processes before, during and after the hearing;

• Hearings need to be clearly sign posted and better explained. The role of individual members needs to be clarified

• The consequence of poor information provision is that consumers appearing before the Board cannot fully engage in the review process. After the hearing, consumers report feeling confused about the criteria that is used to establish the necessity of the treatment they are receiving, confused about the effect of the order, and unsure about their rights to reasons, to appeal, or to seek a re-hearing;

• Few consumers request a Statement of Reasons for the Board’s decision and many are unaware that they are entitled to do so.

Rituals of the Board

• Certain rituals of the Board

o weigh the evidence of clinicians above that of consumers;

o make the consumer feel intimidated and undervalued as a participant;

• o make consumers feel as though they are being judged;

o distance the Board from the consumer;

o discourage the person appearing from participating in a way that allows the full telling of his or her story

The experience of rural consumers

• Consumers in rural areas are especially disadvantaged by the extensive use of teleconferencing technology in their Board hearings. The use of this technology is often highly inappropriate for consumers who experience auditory or visual hallucinations.

The experience of Koori consumers

• The researchers endeavoured to interview Koori consumers. However, there was no response to the promotional material from people who wanted to be interviewed for the project. However, Koori case managers from the Northcote Aboriginal Mental Health Service were pleased to be interviewed. They informed the researchers that, in their experience, their clients attended hearings accompanied by case managers, although they did not object to involuntary treatment and did not see the Board as a venue for challenging that treatment.
  
  

The experience of consumers from culturally and linguistically diverse backgrounds

• Consumers reported some difficulties in accessing interpreters to assist them with the preparation of their case. Interpreters booked for a hearing are required to translate reports just prior to the commencement of the hearing This does not allow the person adequate time to prepare submissions and seek further evidence or a second opinion.

• Consumers are disadvantaged if interpreters are booked only for a limited period and the time expires before the hearing is completed.

Effects on consumers’ lives

• Consumers describe their Board experiences as disempowering and distressing. This experience continues after the hearing, having a negative impact upon the way the way they view their life.

Legal representation

• Legal representation before the Board is highly valued by consumers many of whom told researchers that without representation they have no chance of discharge. Having representation ensures that all appropriate factual matters are raised, and proper procedures are followed. It also takes the pressure off the consumer to present the case whilst he or she may be under the effects of medication.

Increased role for community members

• The role of the community member is viewed by consumers as ineffective. Greater clarification of the role is needed. Consumers want more input from the community member during the review process and see that role as having great potential to improve the hearing process. Consumers view the community member as a potential ally. They see great potential for community members providing the Board with knowledge of less restrictive options to involuntary treatment. Consumers believe that the role would be enhanced by the appointment of community members who have experienced mental illness, in particular of people who have themselves experienced involuntary treatment.

Second opinions

• Consumers report great difficulty obtaining second opinions. Without a second opinion, consumers experience reluctance on the part of the Board to accept any view other than that of the clinician. They also query whether clinicians are brave enough to contradict previous clinical opinions expressed in the file, without the support of a second opinion.

Training of Board members

• Board members must be aware of the consumer’s perspective; they must have current knowledge of mental health services and community supports to assist them to apply the least restrictive alternative. It is crucial that these attributes are demonstrated by all applicants to Board positions and that applicants also demonstrate an ongoing commitment to keeping abreast of the community service developments and treatment options.

• Ongoing training is essential to ensure that Board members are aware of current treatment options. Continuing Professional Development should be a requirement of any appointment.

• Ongoing training includes the conduct of hearings with an emphasis on active listening and eliciting information in a dignified, respectful way. Evidence from clinicians and consumers must be equally weighted.

Ongoing training is essential to assist the Board with the conduct of the hearing to ensure clarity of purpose

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