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Carney, Terry; Tait, David; Beupert, Fleur --- "Pushing the Boundaries: Realising Rights Through Mental Health Tribunal Processes?" [2008] SydLawRw 17; (2008) 30(2) Sydney Law Review 329

[∗] Terry Carney, Professor of Law, the University of Sydney; David Tait, Associate Professor, School of Law, University of Canberra; Fleur Beaupert, doctoral student, University of Sydney. (Professor Duncan Chappell, Sydney, and Dr Christine Coumarelos, NSW Law and Justice Foundation, are the other Investigators on the three-year ARC Linkage grant project from which this paper is derived).

[1] Milton Lewis, Managing Madness – Psychiatry and Society in Australia 1788–1980 (1988) at 2. De-institutionalisation in Australia saw mental heath beds fall from around 30,000 to around 8,000 over three decades: Harvey Whiteford & William Buckingham, ‘Ten Years of Mental Health Services Reform in Australia: Are We Getting it Right?’ (2005) 182 Medical Journal of Australia 396 at 396. Community treatment orders have now become the new site for debate about human rights and treatment for the mentally ill: Vanessa Pinfold & Jonathan Bindman, ‘Is Compulsory Community Treatment Ever Justified?’ (2001) 25 Psychiatric Bulletin 268; Marvin Swartz & John Monahan, ‘Special Section on Involuntary Outpatient Commitment: Introduction’ (2001) 52 Psychiatric Services 323.

[2] International Covenant on Civil and Political Rights (hereafter ‘ICCPR’), opened for signature 16 December 1966, 999 UNTS 171, art 9 (entered into force generally 23 March 1976 and for Australia 13 August 1980).

[3] Community treatment orders (known by other names internationally), are more widely used as intermediate or early intervention orders in Australia and New Zealand than is the case in many overseas jurisdictions, where they tend to be confined to a modern form of ‘trial leave’ from institutional care: John Dawson, Community Treatment Orders: International comparisons (2005); Heathcote Wales & Virginia Hiday, ‘PLC or TLC: Is outpatient commitment the/an answer’ (2006) 29 International Journal of Law and Psychiatry 451.

[4] Australian Health Ministers, National Mental Health Policy (1992).

[5] Australian Health Ministers, National Mental Health Plan 2003–2008 (2003).

[6] Mental Health Council of Australia, Not for Service: Experiences of Injustice and Despair in Mental Health Care in Australia (2005) (hereafter MHC ‘Not for service…’); Select Committee on Mental Health, Mental Health Services in New South Wales Final Report (The Committee, 2002) (hereafter ‘NSW Select C’tee 2002’). The International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 999 UNTS 3 (entered into force generally 3 January 1976 and for Australia 10 March 1976), art 12(1) recognises ‘the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’.

[7] For example, the objects of the Mental Health Act 2007 (NSW) (‘NSW MHA 2007’) include provision of care, treatment and control for people with mental illness ‘through community care facilities’ (s 3(a), (b)). Among the ten ‘principles for care and treatment’ contained in section 68, the legislation endorses the principles ‘(a) …the best possible care and treatment in the least restrictive environment … (b) …timely and high quality treatment and care in accordance with professionally accepted standards, (c) [treatment] designed to assist people with a mental illness or mental disorder, wherever possible, to live, work and participate in the community, (d) [medication] should be given only for therapeutic or diagnostic needs and not as a punishment or for the convenience of others [and] (e) …[provision of] appropriate information about treatment, treatment alternatives and the effects of treatment…’.

Objectives stipulated for the public health system in section 105 provide, among other things, that mental health services should ‘(c) develop, as far as practicable, standards and conditions of care and treatment for persons who are mentally ill or mentally disordered that are in all possible respects at least as beneficial as those provided for persons suffering from other forms of illness…[and] (e) …[be] comprehensive and accessible…’.

[8] Gavin Andrews, ‘The Crisis in Mental Health: The Chariot Needs One Horseman’ (2005) 182 The Medical Journal of Australia 372; Maria Karras et al, On the Edge of Justice: The Legal Needs of People with a Mental Illness in NSW (2006); MHC ‘Not for service…’, above n6; ‘NSW Select C’tee 2002’, above n6 .

[9] The question of the ‘fairness’ and the therapeutic impact (or otherwise) of mental health tribunal review as postulated by ‘therapeutic jurisprudence’ scholarship is canvassed elsewhere: Terry Carney et al, ‘Mental Health Tribunals: “TJ” implications of weighing fairness, freedom, protection and treatment’ (2007) 17 Journal of Judicial Administration 46. See also Kate Diesfeld & Brian McKenna, ‘The Therapeutic Intent of the New Zealand Mental Health Review Tribunal’ (2006) 13 Psychology, Psychiatry & Law 100; Kate Diesfeld & Brian McKenna, ‘The Unintended Impact of the Therapeutic Intentions of the New Zealand Mental Health Review Tribunal: Therapeutic jurisprudence perspectives’ (2007) 14 Journal of Law and Medicine 566; Ian Freckelton, ‘Mental Health Tribunal Decisionmaking: A therapeutic jurisprudence lens’ (2003) 10 Psychiatry, Psychology and Law 44; Bruce J Winick, Civil Commitment: A Therapeutic Jurisprudence Model (2005).

Alternative perspectives meriting attention include the ‘empowerment’ or ‘facilitation’ of autonomy and actual or latent capacity of people with mental illness, drawing on parallels with adult guardianship laws: Genevra Richardson, ‘Autonomy, Guardianship and Mental Disorder: One problem, two solutions’ (2002) 65 Modern Law Review 702. Grounded in part in theories of ‘social citizenship’ rights (Terry Carney, ‘Protection, Populism and Citizenship’ (2000) 17 Law in Context 54), these frameworks are attracting increasing international attention: John Dawson & Annegret Kampf, ‘Incapacity Principles in Mental Health Laws in Europe’ (2006) 12 Psychology, Public Policy, and Law 310; John Dawson & George Szmukler, ‘Fusion of Mental Health and Incapacity Legislation’ (2006) 188 British Journal of Psychiatry 504. An aspect of this for the purposes of the present project is explored in: Fleur Beaupert, Terry Carney, David Tait & Vivienne Topp ‘Property Management Orders for the Mentally-ill: Protection or empowerment? (Unpublished 2008).

[10] The third member category is ‘community member’ or ‘other member’ depending on the jurisdiction. This category comprises members who have skills or experience in the provision or receipt of mental health services outside psychiatry, including social workers, psychologists and, less frequently, carers or consumers.

[11] Stephanie du Fresne, ‘Therapeutic Potential in Review of Involuntary Detention’ in Kate Diesfeld & Ian Freckelton (eds), Involuntary Detention and Therapeutic Jurisprudence (2003) 203.

[12] Elizabeth Perkins, ‘Mental Health Review Tribunals’ in Kate Diesfeld & Ian Freckelton (eds), Involuntary Detention and Therapeutic Jurisprudence: International Perspectives on Civil Commitment (2003) 221 at 239. At the same time, she questioned whether they were an effective legal safeguard: at 238-239.

[13] Some mental health statutes contain a relatively high threshold treatment efficacy prerequisite, such as the Mental Health (Treatment and Care) Act 1994 (ACT) (‘ACT MHA’), which requires that the treatment to be provided under an order for compulsory treatment will actually improve the person’s condition: s 28(c).

[14] Genevra Richardson & David Machin, ‘Doctors on Tribunals: A Confusion of Roles’ (2000) 176 British Journal of Psychiatry 110 at 113.

[15] Peter Stein, Roman Law in European History (1999) at 7. As Stein puts it: ‘The Romans had a strong feeling that their law was of long standing and had been in essentials part of the fabric of Roman life from time immemorial. At the same time they expected it to allow them to do what they wanted to do, so long as that seemed reasonable.’ [emphasis added.] During the first half of the republic, this was where the pontiffs could step in, to ‘interpret’ the law (such as finding ways to ‘emancipate’ children from the rule vesting absolute ownership power in their father).

[16] See Christopher E Smith, ‘The Governance of Corrections: Implications of the Changing Interface of Courts and Corrections’ (2000) 2 Criminal Justice 113.

[17] [1976] USSC 205; 429 US 97 (1976).

[18] [1979] USSC 10; 437 US 678 (1978).

[19] Smith, above n16 at 122.

[20] Theodore Eisenberg & Stephen C Yeazell, ‘The Ordinary and the Extraordinary in Institutional Litigation’ (1980) 93 Harvard Law Review 465.

[21] Id at 516. See for compelling arguments as to the limitations of ‘judicial policy making’ in the health care context from a Canadian perspective: Christopher P Manfredi & Antonia Maioni, ‘Courts and Health Policy: Judicial Policy Making and Publicly Funded Health Care in Canada’ (2002) 27 Journal of Health Politics, Policy and Law 213.

[22] Eisenberg & Yeazell, above n20 above at 510–511.

[23] Id at 512.

[24] NSW MHA 2007 s 38(6) (Cf Mental Health Act 1990 (NSW) (‘NSW MHA 1990’) ss 57(5), 59(5)).

[25] Mental Health Act 1986 (Vic) (‘Vic MHA’) s 35A.

[26] Vic MHA ss 36(4), 36C(3)(a).

[27] Smith, above n16 at 124.

[28] Ibid.

[29] Nancy Rhoden, ‘The Limits of Liberty: Deinstitutionalization, Homelessness, and Libertarian Theory’ (1982) 31 Emory Law Journal 375 at 385.

[30] The Australian Capital Territory has implemented a Human Rights Act 2004 (ACT), and Victoria has implemented a Charter of Human Rights and Responsibilities Act 2006 (Vic), both of which recognise various civil and political rights, and provide mechanisms for enforcing them. Further: Terry Carney and Fleur Beaupert, ‘Mental Health Tribunals: Rights drowning in un-“chartered” health waters?’ (2008) 14, Australian Journal of Human Rights forthcoming.

[31] Some convergence of laws and practices was promoted around international human rights benchmarks: see Terry Carney, ‘Mental Health in Postmodern Society: Time for new paradigms?’ (2003) 10 Psychiatry, Psychology and Law 12; Neil Rees, ‘International Human Rights Obligations and Mental Health Review Tribunals’ (2003) 10 Psychiatry, Psychology and Law 33. This was stimulated by the first joint Ministerial mental health plan: see Helen Watchirs, Application of Rights Analysis Instrument to Australian Mental Health Legislation: Report to Australian Health Ministers’ Advisory Council Mental Health Working Group (2000); Helen Watchirs & Greg Heesom, Report on a Rights Analysis Instrument for Use in Evaluating Mental Health Legislation (1996).

[32] Winick, above n9 at 141.

[33] ICCPR, above n2, art 9(1); see also art 9(4).

[34] Foucha v Louisiana [1992] USSC 54; 504 US 71 (1992) at 78–79.

[35] (1988) 51 Man R (2d) 196.

[36] Id at 206; Mona Gupta, ‘All Locked up with Nowhere to Go: Treatment Refusal in the Involuntarily Hospitalised Psychiatric Population in Canada’ in Kate Diesfeld & Ian Freckelton (eds), Involuntary Detention and Therapeutic Jurisprudence: International Perspectives on Civil Commitment (2003) 155 at 161–162.

[37] Gupta, above n36 at 162.

[38] F Supp 1078 (ED Wis 1972).

[39] Jennifer Fischer, ‘A Comparative Look at the Right to Refuse Treatment for Involuntarily Hospitalized Persons with a Mental Illness’ (2006) 29 Hastings International and Comparative Law Review 153 at 158. Appelbaum notes that the more stringent procedural rules recognised in Lessard v Schmidt were subsequently rejected by a number of courts and legislatures: Paul S Appelbaum, Almost a Revolution: Mental Health Law and the Limits of Change (1994).

[40] NSW MHA 2007 s 14(1) [cf NSW MHA 1990 s 9(1)].

[41] Vic MHA s 8(1)(b); ACT MHA ss 28(c), 36(c).

[42] Vic MHA s 8(1).

[43] See NSW MHA 2007 s 14; ACT MHA ss 28(c), 36(c).

[44] ACT MHA ss 16–18.

[45] Two medical practitioners, including one psychiatrist, must be of the opinion that a person is a mentally ill person to continue their detention: see NSW MHA 2007 ss 18, 19, 27(a)–(c).

[46] Vic MHA ss 12AC, 30(1).

[47] NSW MHA 2007, s 74; ACT MHA, s 50; Vic MHA, s 18–19.

[48] Vic MHA s 30(1). In practice, the Board attempts to schedule reviews sooner than the eight-week maximum.

[49] Vic MHA ss 12AC(3), 30(3).

[50] Vic MHA s 30(3).

[51] NSW MHA 2007 ss 34, 35.

[52] NSW MHA 2007 ss 37(1), 38.

[53] ACT MHA ss 28, 36.

[54] ACT MHA s 32(2)–(3); J v V [1995] ACTSC 66 at [115]. The tribunal has the discretion to mandate residence by making a ‘restriction order’ lasting for up to three months, but such orders are not frequently made: ACT MHA s 36B.

[55] (1991) 4 OR (3d) 74 .

[56] Gupta, above n36 at 163.

[57] Starson v Swayze [2003] 1 SCR 722.

[58] Fischer, above n39 at 165–170; Simon Verdun-Jones, ‘The Right to Refuse Treatment: Recent Developments in Canadian Jurisprudence’ (1988) 11 International Journal of Law and Psychiatry 51.

[59] In Tasmania, the Guardianship Tribunal or the ‘person responsible’ currently makes this decision to override patient objections: Tasmanian Department of Health and Human Services, Review of the Mental Health Act 1996: Discussion Paper (2007) at 14–18. Other Australian jurisdictions prescribe separate review processes for treatment decisions, including South Australia and Western Australia.

[60] The Northern Territory’s consent criterion is more consistent with a criterion based on incomplete incapacity. It involves the higher threshold requirement that the person ‘is not capable of giving informed consent to the treatment or has unreasonably refused to consent to the treatment’: Mental Health and Related Services Act 1998 (NT) s 14(b)(iii).

[61] Vic MHA ss 7273.

[62] NSW MHA 2007 ss 8797; ACT MHA ss 55A–55B, 55L–55N.

[63] NSW MHA 2007 ss 102–104.

[64] Vic MHA s 19A.

[65] Vic MHA s 35A.

[66] NSW MHA 2007 s 53(2)(a), (3)(b). The Australian Capital Territory Tribunal is not required to approve or review treatment plans. Instead the supervising clinician must determine certain conditions of the person’s treatment after the tribunal has made a mental health order: ACT MHA ss 32, 36D.

[67] Rhoden, above n29 at 385. Some commentators argue similarly that erosion of this fundamental right through compulsory treatment pursuant to mental health legislation calls for a corresponding duty on the relevant mental health service to provide quality care and services: Nigel Eastman, ‘Mental Health Law: Civil Liberties and the Principle of Reciprocity’ (1994) 308 British Medical Journal 43.

[68] Winick, above n32 at 200.

[69] 325 F Supp 781 (1971).

[70] Eisenberg & Yeazell, above n20 at 468–469.

[71] Id at 468. Case Comment, ‘Wyatt v Stickney and the Right of Civilly Committed Mental Patients to Adequate Treatment’ (1973) 86 Harvard Law Review 1282.

[72] Id at 1298.

[73] Uri Aviram & Shirley A Smoyak, ‘Discharged Pending Placement: How Courts Created a New Intermediate Legal Status for Confining Mentally Ill Persons’ (1994) 17 International Journal of Law and Psychiatry 139 at 148–149. This situation was caused in part by the shift from a ‘need for treatment’ to a ‘dangerousness’ prerequisite for civil commitment to bring it in line with the ideology heralded by the civil rights movement of the 1970s and 1980s.

[74] Id at 143.

[75]In re S L 94 NJ 128 (1983).

[76] Aviram and Smoyak note that the ‘DPP’ legal status may be viewed as an arrangement of convenience for judicial decision-makers and health service providers alike, which diminishes the imperative to develop effective community support for people with mental illnesses: Aviram & Smoyak, above n73. Its practical effect was that many people were detained well beyond the period of time contemplated by the interim nature of their legal status.

[77] Aviram & Smoyak, above n73 at 148.

[78] The case is at the discovery and negotiation phase (personal communications, Director and Deputy Directors, New Jersey Protection and Advocacy, Inc, 6 April 2007). See New Jersey Protection and Advocacy, Inc, Litigation Activities Page (2007) NJP&A <http://www.njpanda.org/litigation.htm> accessed 5 April 2007; Human Services Research Institute, Status Report: Litigation Concerning Home and Community Services for People with Disabilities (2007).

[79] ‘J Ward’ of the then Ararat Lunacy Asylum was proclaimed as a ‘temporary’ facility for the criminally insane in 1886 in what had been the old gaol. It operated as part of Ararat Mental Hospital, providing care in horrific conditions until May 1988 when the Government announced its proposed closure, which finally took place in 1991.

[80] The Board, comprising Neil Rees, President, Professor Richard Ball, psychiatrist and Ms Jennifer Lee, community member, took extensive evidence over a period of two months at a joint hearing of what were effectively two ‘test’ cases, the legal reasoning for which is republished in both decisions—DWP (1989) 1 Decisions of the Mental Health Review Board of Victoria, 208 (hereafter ‘MHRB Casebook l’] and RJO (Unreported, Mental Health Review Board of Victoria, 10 May 1989). In the course of construing the meaning of the need for, and provision of, ‘treatment’ in the exercise of its s 44 power to determine whether security patient status was warranted, the Board construed ‘treatment’ as implying a clinical standard of care. It invoked the negligence test in Bolam v Friern Hospital Management Committee ([1957] 1 WLR 582 at 587) (‘Bolam’) as denoting the minimum ‘standard’ of such care (DWP official CD rom version of reasons at 223; RJO at [42], noting that this was in line with the ‘essential elements’ of the (comparatively minimal) levels of treatment such as humane care, adequate professional staff and an individual treatment plan as insisted on in US ‘right to treatment’ cases such as Rouse v Cameron 373 F 2d 451 (1966) and particularly Eckerhart v Hensley 475 F Supp 908 (1979) (DWP at 224–25; RJO at [44]). For a summary of ‘right to treatment’ cases see: 56 Corpus Juris Secundum ‘Mental Health’ § 105. On the facts at hand, the Board determined that ‘DWP’ was seriously mentally ill and not in receipt of the required minimum level of treatment, so it exercised its power to transfer him back to prison, where a much superior (if still inadequate) level of treatment and care might at least be available, writing that:

We accept that the treatment available to him in prison may be no better or even worse than that available to him at J-Ward but the Act does not require us to contrast the treatment available in a psychiatric inpatient service with that available in a prison. We have no desire to cause harm to Mr DWP nor to cause him to become an unwilling victim in a test case, However we cannot sanction a state of affairs which has caused him to receive inadequate treatment by ignoring this matter or by pretending that the treatment afforded to him is better than it is (DWP at 226-27).

In RJO the Board concluded that, while less than ideal, the treatment at J Ward met the Bolam standard, so his continued detention in J Ward was confirmed (RJO at [53]).

[81] One consequence was a 1990 amendment to s 8(1)(b) of the Vic MFHA which included care as an alternative to treatment. Subsequently the Board dealt with a ten-year resident of ‘Ward 4’ at the then ‘Mont Park’ facility, another to provide poor facilities and restrictive environments. In the case of In the appeal of KMP an involuntary patient at North Eastern Metropolitan Psychiatric Services (Mont Park) KMP [1992] VMHRB 4 (MHRB Casebook ll) (O’Shea, Nettleton & Taylor), the Board maintained its view that a patient might be discharged due to inadequate levels of treatment, but found that although the accommodation was inadequate, the treatment and care was ‘adequate’ in the circumstances.

[82] [1995] ACTSC 66.

[83] J v V [1995] ACTSC 66 at [29].

[84] J v V [1995] ACTSC 66 at [78].

[85] J v V [1995] ACTSC 66 at [11].

[86] Victorian MHRB, May 2006.

[87] The Community Forensic Mental Health Service of Forensicare provides statewide assessment and multidisciplinary treatment services to high risk clients referred from many public or private sources: Forensicare <http://www.forensicare.vic.gov.au/WebSite.nsf/web/main.html> accessed 7 May 2007.

[88] NSW MHT, February 2006.

[89] NSW MHT, February 2006.

[90] Terry Carney et al, Managing Anorexia Nervosa: Clinical, Legal and Social Perspectives on Involuntary Treatment (2006) at 94–95.

[91] ACT MHT, November 2005.

[92] Terry Carney et al, ‘Institutional Options in Management of Coercion in Anorexia Treatment: The Antipodean experiment?’ (2003) 26 International Journal Law and Psychiatry 647.

[93] Terry Carney, Miriam Ingvarson & David Tait, ‘Experiences of “Control” in Anorexia Nervosa Treatment: Delayed coercion, shadow of law, or disseminated power & control?’ in Pamela Swain (ed), Anorexia Nervosa and Bulimia Nervosa: New Research (2006) 41.

[94] Reliance on the law (or legal institutions) to broker access to government largesse is controversial on several grounds. Governments see it as a trespass on executive functions, while social policy commentators criticise the distortion of social equity entailed in providing a winning litigant/applicant with a ‘ticket to service’ which effectively enables them to queue-jump other applicants with equal or stronger claims to the service. See further Terry Carney & David Tait, The Adult Guardianship Experiment: Tribunals and popular justice (1997) at 146, 178–79; David Tait, Terry Carney & Kirsten Deane, A Ticket to Services or a Transfer of Rights?: Young People and Guardianship (1995); David Tait & Terry Carney, ‘Caught Between Two Systems?: Guardianship and young people with a disability’ (1997) 20 International Journal of Law and Psychiatry 141 at 153, 158.

[95] Of course the opportunity for such encounters to be productive depends in part on the information available, and the study site jurisdictions differ on this score. In NSW tribunals only have the full file for hearings which take place in hospitals, those conducted by videoconference, teleconference or over the telephone from the tribunal’s premises generally only have access to professional reports provided specifically for the hearing. However in NSW, the tribunal is more likely to have a separate social work report detailing information about a person’s social circumstances, whereas this is less common in Victoria and the ACT.

[96] Sameer Sarkar & Gwen Adshead, ‘Treatment over Objection: Minds, Bodies and Beneficience’ (2002) (July) Journal of Mental Health Law 105.

[97] Interview with legal representative, 2006.

[98] Lisa Brophy, The Impact of the Mental Health Review Board on Psychiatric Service in Victoria (1995) at 144.

[99] Erica Grundell, ‘Burden to Benefit? Psychiatric perspectives on the impact of administrative review in Victoria, Australia’ (Paper presented at the 30th Congress of the International Academy of Law and Mental Health, Padua, Italy, June 2007); Erica Grundell, ‘Psychiatrists’ Perceptions of Administrative Review: A Victorian Empirical Study’ (2005) 12 Psychiatry, Psychology and Law 68.

[100] Grundell, ‘Psychiatrists’ Perceptions …’, above n99 at 79.

[101] Ibid.

[102] Brophy, above n98 at 91.

[103] Patricia Walton, ‘Reforming the Mental Health Act 1983: An approved social worker perspective’ (2000) 22 Journal of Social Welfare and Family Law 401 at 408.

[104] Eastman, above n67 at 44.

[105] Genevra Richardson & David Machin, ‘Judicial Review and Tribunal Decision Making: A Study of the Mental Health Review Tribunal’ [2000] Public Law 494.

[106] Genevra Richardson & David Machin, ‘A Clash of Values? Mental Health Review Tribunals and Judicial Review’ (1999) 1 Journal of Mental Health Law 3.

[107] Mandy Dixon, Femi Oyebode & Chris Brannigan, ‘Formal Justifications for Compulsory Psychiatric Detention’ (2000) 40 Medicine, Science and the Law 319; Richardson & Machin ‘Doctors on Tribunals…’, above n14; Ruth Vine, ‘Decision-Making by Psychiatrists about Involuntary Detention’ in Kate Diesfeld & Ian Freckelton (eds), Involuntary Detention and Therapeutic Jurisprudence (2003) 113.