MENTAL HEALTH LAW REFORM AND HUMAN RIGHTS Ian Freckelton QC Crockett Chambers, Professorial Fellow...
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MENTAL HEALTH LAW REFORM AND HUMAN RIGHTS Ian Freckelton QC Crockett Chambers, Professorial Fellow in Law & Psychiatry, University of Melbourne Art of Recovery
MENTAL HEALTH LAW REFORM AND HUMAN RIGHTS Ian Freckelton QC Crockett Chambers, Professorial Fellow in Law & Psychiatry, University of Melbourne Art of
MENTAL HEALTH LAW REFORM AND HUMAN RIGHTS Ian Freckelton QC
Crockett Chambers, Professorial Fellow in Law & Psychiatry,
University of Melbourne Art of Recovery
Slide 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
Slide 3
The Somewhat Exuberant Ethicist Leslie Cannold Victorias 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
Slide 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.
Slide 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
Slide 6
David Richmond Inquiry into Health Services for the
Psychiatrically Ill and Developmentally Disabled 1983 report The
precipitant to deinstitutionalisation from traditional, congregate
care The start of the end of asylums The start of community based
treatment for persons with mental illnesses
Slide 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
Slide 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
Slide 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.
Slide 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.
Slide 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.
Slide 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.
Slide 13
Influences over the latest phase of mental health law reform:
Convention on Rights of Persons with Disabilities
Slide 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
Slide 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
Slide 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
Slide 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)??
Slide 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 eg carers, 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
Slide 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
Slide 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
Slide 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
Slide 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
Slide 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 eg indigeneity? 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?
Slide 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
Slide 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
Slide 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
Slide 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
Slide 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?
Slide 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?
Slide 30
Psychosurgery Definition under dictionary: neurological
procedure to diagnose or treat mental illness. Not including
epilepsy, Parkinsons 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
Slide 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;
Slide 32
Neurosurgery: Vic 2014 Act, s110 The Tribunal must not grant an
application unless it is satisfied that (a) 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 (b) the performance of neurosurgery for
mental illness will benefit the person. (c) 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.
Slide 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
Slide 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.
Slide 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
Slide 36
Restraint & seclusion Strong lobby against these measures
Use of force frequently counter-therapeutic: detracts from dignity,
demeaning, stigmatising, Disempowering
Slide 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.
Slide 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.
Slide 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 reged 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)
Slide 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)
Slide 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)
Slide 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)
Slide 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.
Slide 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 persons 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
Slide 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?
Slide 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 Childrens
Court What orders should it be able to make?
Slide 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
Slide 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