MENTAL HEALTH LAW REFORM AND HUMAN RIGHTS

1. MENTAL HEALTH LAW REFORMAND HUMAN RIGHTS Ian Freckelton QC Crockett Chambers, Professorial Fellow in Law & Psychiatry, University of Melbourne Art of Recovery

2. Inevitable complex relationship between mental health law and human rights • Recall those with mental illnesses were first group singled out by Nazi hygiene laws in the 1930s • Have been subject to indefensible abuses of human rights: eg experimentation: see Chelmsford deep sleep therapy in NSW • Involves balancing between assessment of risk to person and others and respect for autonomy • Dangers of unarticulated incorporation of non-legislative factors by reference to “sanism”: Perlin • Easy to resort to fearfulness, paternalism & counter-therapeutic stigmatisation

3. The Somewhat Exuberant Ethicist Leslie Cannold • “Victoria’s new Mental Health Act will move it from the back of the human rights bus to a leader in individually-empowering patient care” • 6 March 2014

4. Psychopharmacology Origins • Established as a discipline in the 1950s • 1952: first usage of antipsychotics, starting • with chlorpromazine (Largactil) • Followed by fluphenazine (Modecate), haloperidol (Serenace), pericyazine (Neulactil) and trifluoperazine (Stelazine): riskss: tardive dyskinesia, sedation, weight gain etc • Then the atypical antipsychotics: amisulpride (e.g. Solian), aripiprazole (Abilify), clozapine (e.g. Clozaril), olanzapine (Zyprexa), paliperidone (Invega), quetiapine (Seroquel), risperidone (e.g. Risperdal): risks weight gain, sedation etc • Reserve drug: clozapine (Clozaril): risk: agranulocytosis, a serious blood disorder.

5. Other treatments:ECT, Psychosurgery • ECT: Cerletti & Bini: 1937 • Scientific administration: Fink, 1950s • Psychosurgery: commenced in 1930, became • relatively common in 1950/60s in US under Dr • Freeman (“The Lobotomist”) • New phase in 2000s: deep brain stimulation

6. David Richmond Inquiry into Health Services for the Psychiatrically Ill and Developmentally Disabled • 1983 report • The precipitant to deinstitutionalisationfrom traditional, congregate care • The start of the end of asylums • The start of community based treatment for persons with mental illnesses

7. United Nations Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care, 1991 • It is not acceptable to have lower standards for mental health care, in terms of either standards or resources, than in the rest of the health system. • Discrimination on the basis of mental illness is not permitted • A person being treated for a mental illness must be accorded the right to recognition as a person before the law. • The principles reaffirm that individuals who have a mental illness or who have experienced mental illness have the right to protection from: • exploitation -- whether economic, sexual or in other forms • abuse -- whether physical or in other forms and degrading treatment. • the concept of the 'least restrictive alternative' in relation to treatment and require an individualised plan for treatment

8. National Human Rights and Equal Opportunity inquiry into the Human Rights of People with a Mental Illness • Brian Burdekin: Federal Human Rights Commissioner 1986-1994 • Landmark report identifying multiple areas of discrimination and unsatisfactory services provision in relation to persons with mental illnesses

9. Burdekin Report, 1993 • People affected by mental illness are clearly among the most vulnerable and disadvantaged in our community. • They suffer from widespread, systematic discrimination and are consistently denied the rights and services to which they are entitled. • The stigma and suspicion directed at people affected by mental illness is a major barrier to their full and equal enjoyment of life -- creating fear and isolation when people are most in need of tolerance and understanding. The level of ignorance and discrimination still associated with mental illness and psychiatric disability in the 1990's is completely unacceptable and must be addressed.

10. Mental Health Council, Out of Sight, Out of Mind, 2003 • For over 10 years, our national policy & government-driven reform processes have championed the appropriate move to non-institutional forms of care. The overwhelming perception is those who use of provide services is that we have now arrived at a position of “OUT OF HOSPITAL; OUT OF MIND!” That is, one of the most chronically disadvantaged groups in this country continues to be ignored. After two 5-year National Mental Health Plans this does not represent a failure of policy, but of implementation. This includes poor government administration & 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 institutions.

11. Mental Health Council “Not for Service”, 2005 • After 12 years of mental health reform in Australia, any person seeking mental health care runs the serious risk that his or her basic needs will be ignored, trivialised or neglected.

12. Senate Select Committee on Mental Health 2006: Reports 1 & 2 • “There need to be more money, more effort and more care given to this neglected part of our health system. There is not enough emphasis on prevention & early intervention. There are too many people ending up in acute care and not enough is being done to manage their illness in the community” • Recommended harmonisation of mental health legislation throughout Australia, at least in relation to involuntary status.

13. Influences over the latest phase of mental health law reform: • Convention on Rights of Persons with Disabilities

14. Influences over the latest phase of mental health law reform: (2) The Recovery Model • Recovery seen as a personal journey rather than a set outcome, and one that may involve developing hope, a secure base and sense of self, supportive relationships, empowerment, social inclusion, coping skills, and meaning. • Based on the 12-Step Program of Alcoholics Anonymous • The cornerstone of the AHMAC National Framework For Recovery-Oriented Mental Health Services, 2013

15. The Recovery Model • Recovery oriented approaches recognise the value of lived experience & bring it together with the expertise, knowledge and skills of clinicians. They challenge traditional notions of professional power & expertise by helping to break down conventional demarcations between consumers & staff. • 5 processes: • From passive to active sense of self; • Hopelessness to hope; • From others’ control to self-control • Alienation to discovery • Disconnectedness to connectedness

16. Recovery Principles • Uniqueness of the individual in having opportunities for choices & loving a meaningful, satisfying & purposeful life & being valued • Supporting and empowering the making of choices • Learning from & communicating with individual & carers & supporting maintenance & development of social, recreational, occupational & vocational opportunities • Sensitivity & respect for the dignity of the person & challenging discrimination and stigma toward those with mental illnesses • Working in partnership with person and carers to provide support, share information & communicate effectively • Evaluate progress to individuals & systemically to assess outcomes

17. Mental Health Law Reform • Mental Health Bill 2013(WA) • Mental Health Act 2013 (Tas) • Mental Health Act 2014 (Vic) • Mental Health Amendment Act 2014 (Qld)??

18. Role of Mental Health Legislation • To enunciate policy approach of the state • To set the tone and aspirations for the provision of care and treatment to patients, involuntary and voluntary, inpatient and outpatient • To identify rights and obligations for patients and others affected – egcarers, family members, police, treaters • To incorporate cultural and other relevant sensitivities • To provide guidance to clinicians, oversighting bodies such as MHRTs and courts • To provide definitional and conceptual clarity • To proscribe (by criminal and disciplinary law) certain forms of conduct

19. Topics of Recent Australian Mental Health Legislation Reform • Legislative purposes • Mental illness definition • Involuntariness criteria • Treatment planning • Mental Health Tribunal oversight • ECT • Psychosurgery/Neurosurgery • Advance directives • Seclusion & restraint • Forensic issues

20. Purposes and objectives • Section 4 is framed by reference to involuntary assessment and treatment and protection of purposes who have a mental illness. • It is very limited in conception. • The section 8 general principles provision is important but could enunciate recovery principles further

21. Assessment of Need for Involuntary Status • Content of assessment criteria: • Risk that the person • May cause himself or herself or someone else harm • Suffer serious mental or physical deterioration QUERY NEED FOR MAGISTRATE OR JUSTICE OF THE PEACE ORDER AS AN OPTION

22. Definition of mental illness • Significant disruption of thought, mood, memory or perception • Volition? • Exclusions: personality disorders under DSM-5? • Cp s4 of the Mental Health Act 2013 (Tas) which requires experience of a serious impairment of thought or of mood, volition, perception or cognition

23. Objects and Purposes • Adequate for enunciating recovery and return to wellness approach of contemporary mental health care and treatment? • Avoidant of stigma and discrimination? • Sufficiently patient-centred, inclusive? • Proper involvement of carers, family members etc through advance directives? • Incorporating issues of cultural relevance – egindigeneity? • Suitably pro-therapeutic in terms of minimisation of coercion, enabling of second opinions? • Enabling of provision of effective care and treatment without undue bureaucracy or legalistic processes? • Protective of community safety and facilitative of community confidence, including by external oversight?

24. Involuntary Treatment Order Criteria (s14) • (d) criterion: imminent risk the person may cause harm to himself or herself or someone else or suffer serious mental or physical deterioration • (f) lacks the capacity to consent to be treated for the illness or has unreasonably refused proposed treatment for the illness

25. Timing of Tribunal Review • Section 187: within 6 weeks and then • not more than six monthly • Compares favourably with Mental Health Act 1986 (Vic): 8 weeks for initial review and then 12 monthly • Under Mental Health Act 2014 (Vic)(: review will take place within 4 weeks

26. Treatment Plans • Obligations exist for the generation of treatment plans when person is subject to an involuntary treatment order (s110), is a classified patient (ss72-73), has been determined fit by the MHC (ss278-279) or is a forensic patient (ss307-309) • S124 requirements are very limited – outline of proposed treatment or care, frequency, place, persons to administer and duration of treatment or care, intervals for regular assessment • In Vic role for the MHRB under s19A and s35A removed by 2014 legislation: an unfortunate downgrading of the status of treatment plans

27. Treatment Plans • Need for them to be collaborative • Signed by patient, psychiatrist, case manager, involving perspectives of relevant others • Need to deal with psychosocial, rehabilitation, cultural and recovery issues

28. Advance Directives • Principal may give directions about health matters for their future care, provide information about the directions and appoint a person to exercise powers if directions prove inadequate: Powers of Attorney Act 1998 (Qld), s35 • Cp Vic 2014: s19: An advance statement is a document that sets out a person's preferences in relation to treatment in the event that the person becomes a patient. • Room for a greater role in relation to consent to treatment, other decisions or hearing before the MHC or the MHRT?

29. Other rights? • Rights to second opinion • Rights to legal representation before MHRT • Rights for voluntary patients? • What might the right to health (eg in Art 12 the ICESCR) mean in relation to mental health: a right to services/care?

30. Psychosurgery • Definition under dictionary: neurological procedure to diagnose or treat mental illness. Not including epilepsy, Parkinson’s disease or another neurological disorder (chronic tic disorder, tremor & dystonia) • MHRT must not approve under s233 unless satisfied: • Person has the capacity to give and has given informed consent; and • Psychosurgery has clinical merit and is appropriate to the circumstances; • Every available alternative has been given w/o a sufficient & lasting benefit and • It is to be performed by a suitable person at an authorised service

31. Psychosurgery definition (Vic) • neurosurgery for mental illness means— • (a) any surgical technique or procedure by which one or more lesions are created in a person's brain on the same or on separate occasions for the purpose of treatment; or • (b) the use of intracerebral electrodes to create one or more lesions in a person's brain on the same or on separate occasions for the purpose of treatment; or • (c) the use of intracerebral electrodes to cause stimulation through the electrodes on the same or on separate occasions without creating a lesion in the person's brain for the purpose of treatment;

32. Neurosurgery: Vic 2014 Act, s110 • The Tribunal must not grant an application unless it is satisfied that— • the person in respect of whom the application was made has given informed consent in writing to the performance of neurosurgery for mental illness on himself or herself; and • the performance of neurosurgery for mental illness will benefit the person. • In determining whether the performance of neurosurgery for mental illness will benefit the person, the Tribunal must have regard to the following— • (a) whether the neurosurgery for mental illness is likely to remedy the mental illness or alleviate the symptoms and reduce the ill effects of the mental illness; • (b) the likely consequences for the person if neurosurgery for mental illness is not performed; • (c) any beneficial alternative treatments that are reasonably available and the person's views and preferences about those treatments; • (d) the nature and degree of any discomfort, risks and common or expected side effects associated with the proposed neurosurgery for mental illness, including the person's views and preferences about any such discomfort, risks or common or expected side effects.

33. Electroconvulsive therapy • ECT is “the application of electric current to specific areas of the head to produce a generalised seizure that is modified by general anaesthesia and the administration of a muscle relaxing agent. (Qld, dictionary) • Vic: electroconvulsive treatment means the application of electric current to specific areas of a person's head to produce a generalised seizure

34. Electroconvulsive therapy administration: the Vic regime • s92: ECT can be performed if the patient has given informed consent in writing or the MHT has granted approval • S93:A psychiatrist can apply for an MHT ECT order if the patient does not have capacity to consent and the psychiatrist is satisfied in the circumstances there is no less restrictive way for the patient to be treated.

35. ECT: No less restrictive treatment S93 In determining whether there is no less restrictive way for the patient to be treated the psychiatrist must, to the extent that is reasonable in the circumstances, have regard to all of the following— • (a) the views and preferences of the patient in relation to electroconvulsive treatment and any beneficial alternative treatments that are reasonably available and the reasons for those views or preferences, including any recovery outcomes the patient would like to achieve; • (b) the views and preferences of the patient expressed in his or her advance statement; • (c) the views of the patient's nominated person; • (d) the views of a guardian of the patient; • (e) the views of a carer of the patient, if authorised psychiatrist is satisfied that the decision to perform a course of electroconvulsive treatment will directly affect the carer and the care relationship; • (f) the likely consequences for the patient if the electroconvulsive treatment is not performed; • (g) any second psychiatric opinion that has been obtained by the patient and given to the psychiatrist. • Hearing must be within 5 days (s95) or less if psychiatrist so requestsas a matter of urgency

36. Restraint & seclusion • Strong lobby against these measures • Use of force frequently counter-therapeutic: detracts from dignity, demeaning, stigmatising, Disempowering …

37. National Mental Health Commission: 2012 Report Card on Mental Health & Suicide Prevention • Recommended that action must be taken to reduce the use of involuntary practices and work to eliminate seclusion and restraint. • To help drive change, the Commission has established a national Seclusion and Restraint Project in partnership with the Mental Health Commission of Canada and key Australian partners, including the Safety and Quality Partnerships Subcommittee, the Australian Human Rights Commission, and interested state mental health commissions.

38. National Mental Health Commission • Social Equity Institute at the University of Melbourne engaged to look at best practice in reducing and eliminating the use of seclusion and restraint in relation to mental health issues. With the participation of people with lived experience, their families, friends and supporters as well as practitioners and other service providers working in a range of mental health, general health, custodial and community settings, the project team aims to:(1) identify and assess the drivers behind current practice in Australia;
(2) provide examples of how seclusion and restraint practices have been reduced or eliminated; and
(3) discuss options for reducing and eliminating the use of seclusion and restraint in relation to mental health issues in Australia.

39. Restraint & Seclusion • Framed in terms of “mechanical restraint” s162A. • No specific reference to “bodily restraint” or “chemical restraint” (cp Tas) • Doctor can authorise mechanical restraint for up to 3 hours if satisfied it is the most clinically appropriate way of preventing injury to the patient or someone else (s162D) • Doctor (or in urgent circs the senior reg’ed nurse) can authorise seclusion if reasonably satisfied it is necessary to protect the patient or other persons from imminent physical harm and there is no less restrictive way of ensuring safety of patient or others (s162O)

40. Restrictive interventions: the Victorian approach • Defined as seclusion (defined as the sole confinement of a person to a room or any other enclosed space from which it is not within the control of the person confined to leave) or bodily restraint (defined as a form of physical or mechanical restraint that prevents a person having free movement of his or her limbs, but does not include the use of furniture (including beds with cot sides and chairs with tables fitted on their arms) that restricts the person's ability to get off the furniture)

41. Restrictive interventions: the Victorian approach • A restrictive intervention may only be used on a person receiving mental health services in a designated mental health service after all reasonable and less restrictive options have been tried or considered and have been found unsuitable (s105) • A person receiving mental health services in a designated mental health service may be kept in seclusion if seclusion is necessary to prevent imminent and serious harm to the person or to another person (s110)

42. Bodily restraint: • A bodily restraint may be used on a person receiving mental health services in a designated mental health service if the bodily restraint is necessary— • (a) to prevent imminent and serious harm to the person or to another person; or • (b) to administer treatment or medical treatment to the person (s113)

43. “Fitness for Trial” • “fit for trial, for a person, means fit to plead at the person's trial and to instruct counsel and endure the person's trial, with serious adverse consequences to the person's mental condition unlikely” • Old fashioned • Fails to deal with capacity to understand, make choices, instruct counsel” • No qualifying by reference to rationality: cp the Nahak decision of Judge Rapoza in East Timor: see (2014) 21(4) PPL.

44. Forensic Orders • Detain a person to a particular service • Can be made by Mental Health Court and can be revoked by the MHRT • Criteria: Ct must have regard to the seriousness of the offence, the person’s treatment or care needs & the protection of the community • Should have mechanism for guarding against indefinite detention • Advantages for victims & public record in having “special verdicts” (as in NSW & Vic) where persons are unfit to stand trial

45. Forensic Disability Orders • What sort of differentiation should there be between orders made by the Mental Health Court when a person is permanently unfit for trial or unsound of mind? • What about when there is co-morbidity? Should a forensic disability order authorise administration of psychotropic treatment? • What role is there, if any, for authorised mental health services as places of detention?

46. Fitness for Trial or Unsoundness of Mind in the Magistrates Court • See Vic Law Reform Commission, asking (2013) about extension of fitness issues into the Magistrates Court and the Children’s Court • What orders should it be able to make?

47. Pro-recovery Legislation • What would be its attributes? • Clear recovery-focused purposes & objectives • Less facility for resort to coercion • More treatment planning • More collaborative • More empowering • Better culturally attuned • High level of respect for dignity and autonomy

48. Pro-recovery Legislation • More effective in facilitating needed treatment • Enabling of addressing co-morbidities and impediments to recovery • Less stigmatising • More involvement of patient, carers, family members • Emphasis on reintegration, community participation