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Australian Journal of Human Rights |
Dr. Spencer Zifcak[1]
Mental health legislators face a considerable challenge as the end of this pre-millennial decade draws near. In the 1980s, human rights advocates achieved very significant advances in the reform of mental health laws. The battle to assert the rights of people detained in psychiatric institutions was largely won. In the intervening period, however, the ground has shifted beneath the reformers' feet. Progressively, the care and treatment of people with mental illness has been de-institutionalised. There has been a dramatic decline in the number of psychiatric hospital beds. Here, as in most other western countries, new mental health facilities have been established in order to care for people in the community. But this radical transformation of mental health services has not yet been reflected in legislation. A new legislative framework, therefore, is now required to provide effectively for the care and treatment of people with mental illness in the community to ensure, as one perspicacious writer put it, that "yesterday's scandals of the institution are not replaced by today's scandals of the community."[2]
In Australia, as anyone reading Ann Deveson's loving and tragic account of the loss of her son will readily appreciate, such scandals may already be upon us.[3] But the law has not kept pace. It should be axiomatic that people with mental illness located in the community should possess rights and entitlements equivalent to those who have been admitted to psychiatric hospitals. Yet this does not yet appear to be the case. Similarly, it should be axiomatic that people with mental illness in the community should be treated as effectively as those in institutions. Again, there is some considerable doubt about whether care in the community is as effective as it might be.
In this article, then, my purpose is to make a contribution to meeting the challenge that has been identified. What steps can now be taken to ensure that a relevant legislative framework is provided for the community based treatment of people with mental illness? Before attempting an answer to that question, I shall first review the tenor and content of human rights-related reforms to mental health legislation in the 1980s and early 1990s by way of background.
In late 1991, the General Assembly of the United Nations adopted the Principles for the Protection of Persons with Mental Illness.[4] These Principles established internationally agreed rules for the treatment of people who are mentally ill. The Principles have not been incorporated formally into Commonwealth and state legislation. However, they have been endorsed by the Commonwealth Government in its National Mental Health Policy released in April 1992 and elaborated in the National Mental Health Statement of Rights and Responsibilities.[5] The National Policy sets 1998 as the date by which all federal and state legislation should be amended to accord with the United Nations' legal standards.
The UN Principles reflect a narrative which has focused principally on patient's rights.[6] They begin by setting down the fundamental freedoms and basic rights to which a person admitted to a psychiatric hospital is entitled. So, they state that all persons with a mental illness shall:
... be treated with dignity and humanity ... be free from exploitation, abuse and degrading treatment as far as possible continue to exercise their civil, political and economic rights be provided with information about and explanations of their rights have the right to privacy
and
... be entitled to care and treatment at the same standard as other people who are ill.
The United Nations document deals in considerable detail with the protection which should be accorded to patients who require involuntary hospitalisation. These protections:
... establish rigorous criteria to be met before involuntary hospitalisation should be considered ... emphasise that, wherever possible, treatment should be provided with the consent of the patient ... contain restrictions on the use of particularly invasive forms of treatment including medication ... provide for appeal and review both of detention and certain forms of treatment by an independent reviewing authority
and
... establish rights to representation, advocacy and procedural fairness.
Each of these principles and protections is referred to and dealt with in Victoria's Mental Health Act 1986. They are also embodied in the comparable New South Wales and South Australian legislation.[7] While there is some disagreement about the conformity of particular statutory provisions with the terms of the UN document, it may fairly be said that this legislation complies substantially with the international standards outlined.[8]
The civil libertarian approach embedded in each of these documents and reports stemmed from a concern to prevent unjustified admission to and psychiatric abuse in large stand alone institutions.[9] Examples of abuse were not difficult to find either in Australia or internationally. The new approach was also fashioned at a time when the intellectual foundations of psychiatry had been shaken by the Anti-Psychiatry movement and by other critics who argued that doctors were too powerful and needed to be drawn to account.10 The turmoil spilled into the public domain with films like "One Flew Over the Cuckoo's Nest" and Ken Loach's "Family Life", painting psychiatrists and institutions in a negative light. More broadly, the human rights movement had been given considerable stimulus by the widespread adoption of international and regional covenants of civil and political rights. It was not long before lawyers were demanding that people with mental illness too should reap the benefits of these rights-related instruments.
So, in Victoria, New South Wales and elsewhere, new Mental Health Acts were passed. Among other things these incorporated strict criteria for admission to psychiatric hospital, introduced independent external review of decisions on patient status, brought invasive psychiatric treatments under greater control and provided for involuntary treatment in the community. All of these reforms represented a creditable advance. There is no doubt, in my view, that the institution of this new mental health legislation and its extension to other State and Territory jurisdictions in conformity with the UN Principles has been of substantial benefit to patients involuntarily detained in psychiatric hospitals.
In Victoria, for example, the legislation has served to inform patients of and arm them with important legal rights and entitlements. It has facilitated the treatment of patients in the least restrictive environment available. It has drawn psychiatrists in the public hospital system to account through an independent and
impartial process of review. It has made medical practitioners more acutely aware of the legal framework within which they must practise.[11]
Nevertheless, if the past decade has demonstrated anything in this arena it is that the legal, rights-based narrative upon which new mental health legislation has been founded has provided at best a partial explanation of and solution to the multi- faceted problems which characterise the field. The contribution of the rights strategy to improving access to and standards of treatment, increasing the resources available for community mental health, decreasing social stigmatisation and engendering more informed policy debate and development, among other things, has been a dispiritingly negligible one.[12]
At least in theory it is not difficult to appreciate why. Civil rights generally are constituted as defences erected around individual actors. They allow individuals to vouchsafe a space into which others will not trespass. The rights focus, therefore, tends to emphasise peoples' separateness. It places a relatively lower premium on the desire of others to assist. Rights theory also suggests that the individual is a good user of the space made available. Hence, its core emphasis is on the rationality of individuals who are presumed to know and act in their best interests. This conception, essentially one of "negative rights", presumes that the arrangements so created provide the best foundation for a liberal, tolerant society. It can, therefore, devalue the co-ordinated efforts of society to act in the general welfare.[13]
In the mental health sphere, however, each of these presumptions is contestable. Certainly, it is important to create a realm of freedom for people with mental illness. But it is equally vital to assist them. The rights approach presumes a rational actor. By definition no such assumption can necessarily be made in the psychiatric field. The entrenchment of patients' rights is a necessary but insufficient condition for patients' welfare. Social, medical and governmental intervention is also needed to establish the preconditions for their rehabilitation and acceptance in the wider society. What is required, therefore, is not simply a right to freedom but also a claim upon well-being. It is with the advancement of this claim that the rest of the present article is concerned.
As previously indicated, any new mental health legislation will have to take account of the altered context in which it will be formulated. There appear to be six important aspects of the present context of which legislation will have to take notice.
The first, and most obvious, is deinstitutionalisation. Large stand alone institutions are progressively being closed and new community based services are being created in their stead. People with mental illness are no longer treated primarily in psychiatric hospitals but, rather, are cared for in the communities with which they are familiar.[14]
Secondly, and in parallel, the provision of acute mental health services is being mainstreamed. Increasingly, these services are being relocated in general hospitals. This, it is said, will reduce the stigmatisation previously associated with care in institutions and ensure that mental health services are funded in a manner similar to that for ordinary hospital services.[15]
Thirdly, public psychiatry's terrain has become the community. In the process, its objects have undergone a subtle transformation. In the absence of significant breakthroughs in psychiatric diagnosis and treatment, psychiatrists and other mental health workers are metamorphosing into social educators and risk managers. Their purpose is to provide their patients with the skills to survive in a community setting and to ensure that their behaviour remains within tolerable limits. As the sociologist Nikolas Rose has observed:
Professionals become tutors -- sometimes gentle, sometimes harsh -- in the arts of self management: keep your appointments, take your medicine, don't get drunk or violent -- or you will lose your place in this project. The will to cure becomes little more than the inculcation of a particular type of relation to the self -- prudent self management, making contracts and abiding by them, setting reasonable targets, and achieving them, learning skills of management of everyday life.[16]
Fourthly, and significantly, the money available to governments generally and to mental health practitioners in particular is decreasing. Considerably greater pressure is being placed on mental health workers of every kind to provide more for less. The decrease has also meant that less money has been made available to establish community mental health facilities than might otherwise have been expected or have been adequate to meet the need.
Fifthly, and partly in response, the method of delivering mental health services is changing. Consistent with broader managerial reforms adopted in the public sector, government departments are withdrawing progressively from direct service delivery and instead are purchasing the services they require from non- government agencies or private sector organisations.[17]
Finally, services that are provided by government are being required to perform more efficiently. Efficiency is defined almost exclusively in measurable and managerial terms. Through casemix and other such management mechanisms, central service departments are placing increasing emphasis on achieving greater throughput in the general health sector. Assessments of service quality or consumer satisfaction are made but, for the moment, appear to be of secondary importance.[18]
In my view, the principal implications of these contextual changes for law reform are as follows:
Given these contextual changes, it is now apparent that the framers of new mental health laws should reach beyond their recent preoccupation with the individual freedom of people with mental illness and become equally concerned with the promotion of their medical and social well being. In doing so, a more co-operative relationship between law and psychiatry may be created:
The legal approach is a natural resort for patients anxious to protect their civil liberty against medical or other professional encroachment supported by therapeutic legitimations, but can also unite with the medical perspective to the extent that patients, as psychiatric consumers, assert their rights to an improved quality and range of psychiatric services. Patients who accept that their treatment is a medical province and recognise their own need for psychiatric care can proclaim their entitlement to services through the medium of legal rights.[20]
Next, the focus of legislation should broaden to take account of the realities and community psychiatric care and the difficulties and disadvantages which people with mental illness experience in this setting.[21] Recognising that resources are limited, new legislation should at least incorporate the principle that funds allocated to meet the problems of mental illness should not fall below the level provided for the alleviation of other comparable health problems in the general community. It should also attempt to ensure that minimum standards of service are defined and met. As the Burdekin inquiry concluded:
While all mental health legislation provides for safeguards and standards in hospitals designated for the involuntary treatment of mental illness, there is not the same control in relation to community treatment facilities. [22]
Having said this, however, it is important to recognise that the interests of law and psychiatric medicine at times may be antithetical.[23] Consequently, any new legislation should not attempt to prescribe effective psychiatric practice but, rather, should aim to facilitate and underpin it. Consistent with this attitude, new laws should be concerned principally with process rather than practice or outcome. The object should be to create decision-making processes which maximise the possibility that effective psychiatric and social intervention in the interests of people with mental illness will occur. To do that, those who suffer or have suffered from mental illness, and their carers and advocates, should play a much more significant part in decision-making than they have previously done. As the prominent English campaigner for mental health rights, Larry Gostin, has observed:
From the patient's perspective there is no human rights principle more fundamental than to give him access to a decision-making process which he can have confidence in.[24]
In the remainder of the paper I make practical suggestions for legislative reform consistent with these broad parameters and emphases and do so under the following headings: Principles and Policy, Equity, Quality, Advocacy and Accountability.
New legislation, in my view, should be prefaced by a statement of objects and principles which define its aspirations. The principles should state that every person with a mental illness should have the same opportunity as others:
... to obtain access to the services they require ... to participate in and be consulted about the decisions which affect them ... to support which will facilitate their independence in the community ... to have their human rights and dignity respected
and
... to pursue any complaints they may have concerning the psychiatric and community services they receive.[25]
A new Act should also contain principles the purpose of which is to ensure that people with mental illness receive high quality treatment and care whether in hospital or the community. Victoria's amended Mental Health Act provides an appropriate model. The legislation includes a new section which provides among other things that people with mental illness should:
... be provided with high quality and timely care according to professionally accepted standards ... be provided with care designed for them to live, work and participate in the community wherever possible ... be provided with appropriate and comprehensive information about their illness and treatment ... be involved in the development of their ongoing treatment plan wherever possible have their treatment plan regularly reviewed and revised.[26]
It would also be useful to embed certain administrative principles in the new law. So, for example, a report on model mental health legislation by the Centre for Health Law, Ethics and Policy at the University of Newcastle recommended the inclusion of principles which set down the basic administrative parameters within which new services should be developed. Accordingly psychiatric services should:
... be integrated with general health services so as to provide comprehensive care ... be part of an integrated network to ensure the maximisation of option, choice and continuity of care
and
... comprise a co-ordinated range of regional and local, public, private and non-government care, treatment and rehabilitation.[27]
Principles such as these do not give rise to any enforceable legal obligations. Nevertheless, they set the tone for new legislation and provide a means through which the provisions of legislation can properly be interpreted and implemented and against which performance can effectively be judged.
In their statement of National Mental Health Policy, Australia's Health Ministers declared that:
The quality and effectiveness of mental health services are enhanced if the services are responsive to their consumers and communities and if avenues are created for participation in decision-making about the development of services ...[28]
The point about participation in decision-making is an important one. The statement makes it clear that such participation should not simply be confined to informed discussion about treatment. It should extend further into participation in mental health policy and planning more generally. New mental health legislation might, therefore, set down certain conditions which policy-making in mental health should be required to meet. So, for example, the law might require that:
While mainstreaming and community care reduce the probability of stigma associated with involuntary detention in large psychiatric institutions, the problems of stigma and discrimination are unlikely to be ended by these expedients alone. Indeed the greater visibility of people with mental illness in the wider community may serve simply to reinforce established prejudice.[30] This makes it imperative that laws be enacted to prohibit discrimination against people with mental illness. Most states' equal opportunity laws provide just such protection.
Beyond this, however, mental health legislation might usefully incorporate provisions designed to guarantee that hospitals and community mental health services no matter how sponsored should develop effective strategies for access to services and their equitable delivery. The legislation could provide, for example, that each hospital and agency develop an access and equity policy, that any such policy be based upon an informed assessment and analysis of local community needs, that access to services should be afforded in the first instance to those in greatest need and that such policies and plans be subject to regular evaluation.[31]
In addition, a new mental health law should explicitly adopt the resourcing standard set down in the UN Principles. That is, the law should provide that a mental health facility whether located in a hospital or in the community should have the same level of resources as any other health establishment and in particular there should be "qualified medical and other professional staff in sufficient numbers and with adequate space to provide each patient with privacy and a programme of appropriate and active therapy." [32]
More broadly, both Commonwealth and state legislation should be scrutinised in order to eliminate statutory provisions which discriminate against people with mental illness. In particular, laws relating to occupational licensing, appointment to public office and entitlement to vote merit close attention.[33] Too frequently such laws assume that a person's mental illness is permanent rather than periodic and constitutes a global rather than partial disability. These assumptions are contradicted frequently in practice and hence may be discriminatory. Both national and provincial laws should adopt a more fine grained approach in these arenas.
It is the problem of how legislation might best serve to ensure that quality mental health services are provided that poses the greatest challenge. This is primarily because the definition of quality is not principally a matter for law but for professional judgment. It has also proven very difficult to translate any legal entitlement to treatment into the reality of meaningful medical care. Consequently, the best way to address this appears to be for the law to concentrate on the development of effective processes rather than prescribing substantive entitlements to service. In this context the following suggestions are offered as a modest beginning.
First, legislation should provide for the planned provision of treatment for patients admitted to and discharged from acute mental health units in major hospitals.[34] Section 117 of the Mental Health Act 1983 in the United Kingdom, for example provides a statutory duty on regional health authorities to provide aftercare. Health authorities and relevant local government agencies must, therefore, plan jointly for community care with individual responsibility being assigned to specific mental health professionals for providing the care required. An associated code of practice lists a number of issues which must carefully be examined in planning aftercare: the patient's own wishes, the views of relevant family, friends and advocates, the agreement of the receiving authority or clinic, the involvement of other non government organisations and an individual aftercare plan based on proper assessment and clearly identified needs including the consideration of daycare, accommodation, out patient treatment, counselling, personal support, claiming welfare rights and benefits and assistance with financial management.
Similarly, the relevant regional health authorities should be required to prepare an individual treatment plan for each patient whether voluntarily or involuntarily treated in the community. Each patient's progress under the treatment plan should be reviewed at least once annually by an independent reviewing authority.
Secondly, then, an independent reviewing authority should be established to examine individual treatment plans and progress under them. A model for such an authority already exists in Victoria. There, the Intellectual Disability Review Panel where requested may review the situation and progress of every person with an intellectual disability whose care is in the hands of the State's Human Services Department.[35] Progress is assessed against a general service plan which has been agreed upon by all parties with an interest in the person's welfare.
Having proposed this, however, some pitfalls revealed by the Victorian experience should clearly be avoided. The Intellectual Disability Review Panel's principal power is to make recommendations to the Secretary of the relevant department. The Secretary may or may not accept the Panel's recommendations. If the Panel's recommendations are not accepted the only avenue of appeal is to the relevant Minister. Again, the Minister has complete discretion as to whether to act on the Panel's advice. It would be inappropriate to suggest that the Secretary or Minister be bound to act on the advice of the reviewing authority. Nevertheless, they should be held accountable if they do not.
The independent authority, therefore, should be required to report annually to the Parliament on its activities and in particular upon the Department's and Minister's responses to its recommendations. The reviewing authority should be and be seen to be independent of government. The Victorian Panel, which is required to have a departmental officer on each of its divisions, does not meet this requirement. The Panel has jurisdiction only to respond to requests for review. Consistent with a requirement for regular review, however, the independent authority should be required to review each person's progress at least once every twelve months. It should also have the discretion, in appropriate circumstances, to schedule an earlier review if the patient or his or her representative request it.
Thirdly, legislation should provide for the definition of service objectives and standards. For reasons canvassed earlier, it is in my view inappropriate that such standards should be defined by law. Instead, legislation should indicate the areas in which quality objectives and standards are to be developed, for example in meeting client needs, in the provision of staff and facilities and in access and equity. It should then require that performance be assessed regularly against these objectives and standards by standards monitoring teams appointed specifically for the purpose. The standards should be open and accessible to clients and their carers and they should be informed of the process by which their achievement is reviewed.
Fourthly, new mental health laws should take into consideration the fact that government will increasingly act as the purchaser rather than the provider of mental health services. They should provide, therefore, that the continued funding of non-government and private providers be conditional on the achievement of governmentally defined policy and quality targets. At minimum, legislation should state that funding is conditional upon providers observing programmatic guidelines, using allocated funds for the purposes specified in service contracts, the maintenance and enhancement of defined quality standards and the proper provision of information concerning strategies, activities, performance and outcomes.[36]
Particularly where private providers are licensed to provide involuntary treatment to people with mental illness, potential conflicts of interest will also need to be addressed. Two in particular merit consideration. A psychiatrist with a direct or indirect financial interest in a private psychiatric facility or facilities should not be permitted to make decisions about whether or not a patient should be detained in any such licensed facilities. Similarly, a psychiatrist with a financial interest in a private psychiatric facility should not be permitted to authorise the involuntary detention of a person in that facility where the psychiatrist is likely to receive payment from Medicare for the treatment of that person in that facility.[37]
Clearly it is important that people with mental illness in the community have access to individuals who can assist them in negotiating the difficult transition from hospital to the community, monitor their progress and represent their interests when things go wrong. For many people, it is family and friends who will play this role. Others, however, may need to rely on more formal structures. The Office of the Public Advocate in Victoria, if properly funded and supported would appear to provide one appropriate model for the provision of advocacy services of the kind that are now urgently required.[38] But reliance should not be placed only on governmental agencies. It is equally important that new legislation have as one central objective to foster and authorise funding of non-governmental self help and advocacy organisations whose identification with and experience of people with mental illness provides a strong foundation for collaborative endeavour.[39]
I have already dealt with the establishment of accountability mechanisms at State level. Mental Health Review Tribunals and Independent Treatment Review Panels are the two most obvious examples. Beyond this, however, the Federal Government might make a very important contribution through the establishment of a National Mental Health Commission.[40] As the Australian Health Ministers observed in the National Mental Health Policy:
There needs to be greater accountability and visibility in reporting progress in implementing the new national approach to mental health services ... It is essential that ... a consistent system of monitoring and accountability be created. In developing such a system, it needs to be recognised that each state and territory will be at a different stage as a result of the historical development of its mental health system. The central approach should be to measure progress in each state and territory.[41]
The Commission could be established on the British model.[42] Such a Commission would be a federal body independent of State mental health administrations. The Commission's principal tasks would be to ensure that State and Territory mental health legislation complied with UN Principles, to promote legislative reform in accordance with the Principles, to promote mental health research, to develop national mental health policy and to educate the community about mental illness and its treatment.
In addition, the Commission would receive and deal with systemic and individual complaints about the operation of the national mental health system. This would supplement the present existence in most states of Health Complaints Ombudsmen. The establishment of an effective complaints jurisdiction is important for without it the proposed Commission would be deprived of a very important source of information underpinning the performance of its functions.
Recent British experience is instructive in this regard. There, the Commission has been in existence for a decade. It has a complaints jurisdiction but is very limited in how it can respond to and act on complaints. It has also been substantially under resourced so that its complaints function has not properly been undertaken. Even with the complaints function, the Commission failed to appreciate the existence of what a special committee of inquiry established to examine conditions in three major public psychiatric institutions described as "life in a brutalising, stagnant, closed institution." The Commission missed what the subsequent inquiry concluded were appalling and distressing conditions in the hospitals examined.
It follows in my view either that an Australian Commission should be given an inquiry and complaints jurisdiction with the resources to match or that the Commonwealth should provide funding to existing states' health complaints offices to deal with systemic and individual complaints about the delivery of mental health services. In addition, these offices would provide the Commission with appropriate, non-identifying information on the location and patterns of complaint as the basis for Commission action at a policy level. The Commission should be armed with powers to investigate and report independently on general conditions or individual grievances. The reporting power would be to the Federal Parliament rather than to the relevant federal or state Ministers. The Commission's powers should permit proactive as well as reactive inquiry. Further, consistent with my concern regarding the position of people with mental illness in the community, the Commission should have a mandate to examine and report not only on the treatment and care of patients in psychiatric hospitals but also those who have been discharged into the community for treatment by community mental health clinics, health centres or assessment and treatment teams.
At the conclusion of his landmark study of American mental health legislation, Paul Applebaum drew the following conclusion:
There is no single set of interests that alone can or should command the allegiance of those who fashion mental health law, whether on the statute books or in the field. Neither society's interests in providing treatment to mentally ill persons -- particularly in the difficult circumstances in which they deny their need for care -- nor its interest in protecting their civil rights stands alone. The purpose of mental health law should be to fashion reasonable compromises between these often conflicting desiderata.[43]
In stressing the importance of "process" in the reform of mental health legislation in Australia, I have sought to mould just such a compromise. The approach suggested seeks to take the best of recent human rights related reforms and meld them with the contemporary concern to resituate and reintegrate people with mental illness in the communities of which they are part. This latter requires not only an assertion of rights but also the realisation of new claims to effective community care and to individual as well as collective well-being.
[1] Associate Professor of Law and Legal Studies at La Trobe University in Melbourne, Australia. He has been a legal member of the Mental Health Review Board of Victoria and the Psychosurgery Review Board of Victoria for the past ten years. An earlier version of this article was delivered as the keynote address to the conference Mental Health: Where's the Vision, The First National Conference of Mental Health Review Tribunals and Guardianship Boards, Centre for Health Law, Ethics and Policy, University of Newcastle, February 1997.
[2] Rose N "Unreasonable rights: mental illness and the limits of the law" (1990) 12 Journal of Law and Society 199; and see more generally Tomlinson D and Carrier J (Eds) Asylum in the Community (Routledge, London 1996).
[3] Deveson A Tell Me I'm Here (Penguin, Melbourne 1991).
[4] Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care, United Nations General Assembly (1991) 46th Session, Item No. 98(b). The text of the UN Principles is reproduced in Human Rights and Mental Illness, the Report of the National Inquiry into the Human Rights of People with Mental Illness, Human Rights and Equal Opportunity Commission, Volume 2, Appendix 5 (AGPS, Canberra 1993).
[5] Australian Health Ministers National Mental Health Policy (Commonwealth of Australia, 1992). Australian Health Ministers National Mental Health Statement of Rights and Responsibilities (Commonwealth of Australia, 1991).
[6] See further Rosenthal E and Rubenstein L "International human rights advocacy under the Principles for the Protection of Persons with Mental Illness" (1993) 16 International Journal of Law and Psychiatry 257.
[7] Mental Health Act 1990 (NSW); Mental Health Act 1993 (SA).
[8] An analysis of existing legislation in the light of the UN Principles is undertaken in Human Rights and Mental Illness, Report of the National Inquiry into the Human Rights of People with Mental Illness, Human Rights and Equal Opportunity Commission (the Burdekin Report) (AGPS, Canberra 1993). For a discussion of similarities and differences see further Delaney S
"The United Nations Principles for the Protection of People with Mental Illness and Victorian Law" [1992] MelbULawRw 3; (1992) 18 Melbourne University Law Review 565; Zifcak S "The United Nations Draft Convention on the Rights of People with Mental Illness" in The Mental Health Act into the 1990s (Mental Health Review Board of Victoria, 1991); and Zifcak S "The United Nations Principles for the Protection of People with Mental Illness: applications and limitations" (1996) 3 Psychiatry, Psychology and Law 1.
[9] See McSherry B "Human Rights and Mental Illness: the legal framework" (1994) 2 Journal of Law and Medicine 54.
[10] For a critical and perceptive account see Sedgwick P Psycho politics (Pluto Press, London 1982).
[11] See Rees N "Bringing law to psychiatric hospitals -- Can it be done and is it worth the effort?" in The Mental Health Act into the 1990s (Mental Health Review Board of Victoria, 1991).
[12] See generally, Human Rights and Mental Illness (The Burdekin Report) Chapter 30, \top cit, n 9.
[13] See Gewirth A Human Rights (Chicago University Press, Chicago 1982) pp 41-67.
[14] See Department of Health and Community Services (Vic) Victoria's Mental Health Service: The Framework for Service Delivery (1994).
[15] Ibid.
[16] See Rose N "Psychiatry as a political science: advanced liberalism and the administration of risk" (1996) 9 History of the Human Sciences 1 at 14-15; and Miller P and Rose N "On therapeutic authority: psychoanalytical expertise under advanced liberalism" (1994) 7 History of the Human Sciences 30.
[17] For an elaboration of this strategy see Department of Finance (Vic) Victoria's Management Improvement Initiative (1993).
[18] See Australian Casemix Clinical Committee Development of the Australian Inpatient Casemix Classification System: Clinical Evaluation of the Diagnosis Related Group Classification (1992); and Department of Health and Community Services (Vic) Achieving Better Health and Health Services: Strategic Directions 1992-1994 (1992). Critical accounts are contained in Victorian Health Issues Centre Casemix Quality and Consumers: Fixing the Mix (1992); Davies A "Managerialised health care" in Rees S and Rodley G (eds) The Human Costs of Managerialism: Advocating the Recovery of Humanity (Pluto Press, Sydney 1995); and Fanker S \t"Issues in casemix funding for acute inpatient psychiatric services and their relevance to mental health nursing" (1996) 5 Australian and New Zealand Journal of Mental Health Nursing 95.
[19] See Sidoti C Keynote Address, VICSERV Conference Recovery: Rethinking the Community Response to People who Experience Psychiatric Disability, Conference Papers (1996) p 24 .
[20] Unsworth C The Politics of Mental Health Legislation (Oxford University Press, Oxford 1987) p 7.
[21] See to similar effect Department of Health and Community Services (Vic) Victoria's Mental Health Services: Proposed Amendments to the Mental Health Act 1986: Discussion Paper (1995) pp 1-3.
[22] Human Rights and Mental Illness, the Report of the National Inquiry into the Human Rights of People with Mental Illness (The Burdekin Report) (AGPS, Canberra 1993) p 901.
[23] Comprehensive histories of the interaction between the two professions are in Britain are provided in Unsworth C The Politics of Mental Health Legislation (Clarendon Press, Oxford 1993); and Jones K Asylums and After: A Revised History of the Mental Health Services from the early 18th Century to the 1990s (Athlone Press, 1993). In Australia the best historical
account is in Lewis M Managing Madness: Psychiatry and Society in Australia 1788-1980 (AGPS, Canberra 1988); and see more recently Rees N "The future of mental health law", unpublished paper (Centre for Health Law, Ethics and Policy, University of Newcastle, Australia 1997).
[24] Gostin L "Human rights in mental health" in Bluglass R and Roth M Psychiatry, Human Rights and the Law (Cambridge University Press, Cambridge 1985) p 152.
[25] This recommendation mirrors that made by the Australian Law Reform Commission in relation to all people with disabilities in Making Rights Count: Services for People with a Disability (AGPS, Canberra 1996) p 79.
[26] Mental Health Act 1986 (Vic), s 7.
[27] See Centre for Health, Law, Ethics and Policy, University of Newcastle Model Mental Health Legislation (1995) Vol 1 p 48.
[28] Australian Health Ministers National Mental Health Policy (Commonwealth of Australia, 1992) p 13.
[29] See to similar effect the recommendations in Australian Law Reform Commission Making Rights Count (AGPS, Canberra 1996) Chapter 6.
[30] For an extended analysis of social discrimination against people with mental illness \tsee Campbell T and Heginbotham C Mental Illness: Prejudice Discrimination and the Law (Dartmouth, 1991); and Dawson J "The changing legal status of mentally disabled people" 2 Journal of Law and Medicine 38. The experience of stigmatisation in the community is described graphically in the splendid qualitative study by Barham P and Hayward R From the Mental Patient to the Person (Routledge, London 1991); and \tsee further Bean P and Mounser P Discharged from Mental Hospitals (Macmillan, \tLondon 1993).
[31] See to similar effect Australian Law Reform Commission Making Rights Count op cit Chapter 8.
[32] Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care op cit Principle 14.
[33] See to the same effect Centre for Health Law, Ethics and Policy, University of Newcastle Model Mental Health Legislation op cit n 28, Chapter 6.
[34] See to similar effect Human Rights and Mental Illness Report of the National Inquiry into the Human Rights of People with Mental Illness op cit n 23, Chapter 9.
[35] The role and function of the Intellectual Disability Review Panel is set down in the Intellectually Disabled Persons Services Act 1986 (Vic).
[36] The provision of services by private providers is considered in more detail in Better Off in the Community? The Care of People who are Seriously Mentally Ill House of Commons, Session 1993-1994, Health Committee, First Report 102-1 (HMSO, London 1994).
[37] See further Model Mental Health Legislation op cit n 28, Chapter 1.
[38] The role of the Public Advocate is set out in the Guardianship and Administration Act 1986 (Vic).
[39] See further Human Rights and Mental Illness op cit n 23, Chapter 15.
[40] The establishment of such a Commission was recommended in Model Mental Health Legislation op cit n 28, pp 180-183.
[41] Australian Health Ministers National Mental Health Policy op cit pp 30-31.
[42] The role and operation of the British Mental Health Act Commission has most recently been described in Mental Health Act Commission: Fifth Biennial Report 1991-1993 (HMSO, London 1993).
[43] Appelbaum P Almost a Revolution: Mental Health Law and the Limits of Change (Oxford University Press, New York 1994) p 219.
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