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FLEUR BEAUPERT[*]
One of the unexplored aspects of mental health is what we may call its ‘dark figure’. The dark figure of crime was a concept developed to describe incidents that could be categorised as crimes but which are not reported or recorded. Mental health law has traditionally been concerned with an inverse ‘dark figure’ comprising people who have been wrongfully detained or abused in psychiatric institutions. Mental health tribunals are the lynchpin of legal safeguards designed to prevent arbitrary deprivation of individual liberty by the mental health system in Australian jurisdictions and most other Western states. The vast majority of their work involves initiating and reviewing the provision of compulsory treatment to individual mental health service users. Compulsory treatment involves a person being either detained in hospital or placed under a community treatment order (CTO) that requires them to comply with a treatment plan while living in the community. The fundamental object of mental health legislation is to provide people with mental illnesses with the best possible care in the least restrictive environment enabling such care to be given.
Today, Australian mental health systems appear to be generating a ‘dark figure’ comprising people who are in need of treatment for a mental illness but are unable to access services or receive adequate treatment. In recent years the ‘crisis’ in mental health service delivery has attracted significant media attention.[1] Current treatments can in theory avert 40 per cent of the burden of mental illness, yet according to a national survey only about 13 per cent is in fact averted, due to inefficiencies in the health system.[2] This article considers what role, if any, mental health law and its tribunals can and should play in minimising the existence of the ‘dark figure’ of unmet treatment needs. A report of the NSW Law and Justice Foundation highlighted the interdependence of access to justice and access to care for mental health service users.[3] One aspect of this connection is that mental health tribunals have an important ‘treatment review role’ alongside their fundamental civil rights protection role.
The treatment review role of mental health tribunals is not clearly set out in one place in mental health legislation, but rather is visible when a number of different provisions are read together. It encompasses an amalgam of express and implied duties to monitor the way in which treatment is provided to individual mental health service users. Numerous reviews of mental health legislation have recently been completed or are underway. One barrier to effective reform, however, is that these reviews have largely sidestepped the critical question of the scope of mental health tribunals’ powers to influence the types of care and treatment a person receives once subject to a compulsory treatment order. One example of this omission is the NSW government’s review of mental health and related legislation which resulted in the Mental Health Act 2007 (NSW) (NSW MHA), entered into force on 16 November 2007.
Justice in the mental health law field has a unique mental health flavour in that it is contingent to some degree on the probable health care outcomes of decision-making. The primary function of mental health tribunals is to decide whether or not to authorise the commencement or continuation of compulsory treatment, depending on whether the relevant statutory requirements are met. At first glance, this is a negative function to prevent arbitrary deprivation of liberty involving relatively straightforward application of the law to the facts of the case. On this view, there is a clear boundary between ‘legal’ and ‘clinical’ decision-making: mental health tribunals decide whether or not a person is to be a compulsory patient, but while a person’s legal status as a compulsory patient continues it is clinicians who make decisions about the types of care and treatment they receive. This article examines provisions of the NSW MHA and its predecessor, the Mental Health Act 1990 (NSW) (NSW MHA 1990), the Mental Health Act 1986 (Vic) (Vic MHA) and the Mental Health (Treatment and Care) Act 1994 (ACT) (ACT MHA) in order to demonstrate the rather blurred nature of this boundary.
One rather neglected aspect of the treatment review role of mental health tribunals involves an express or implied obligation to make some assessment about issues relating to diagnosis and treatment. This obligation includes taking into account the likely efficacy of treatment to be provided to a person subject to a compulsory treatment order. The core prerequisites for compulsory treatment in most Australian jurisdictions are generally that:
• the person has a ‘mental illness’ as defined in the relevant statute;
• compulsory treatment of the person is necessary in order to prevent them causing harm to themselves or other people because of this condition; and
• no other care of a less restrictive kind is appropriate and reasonably available to the person.
However, the content of each of these factors varies slightly between jurisdictions, and some mental health statutes prescribe additional prerequisites. The ACT formulation most explicitly confers a treatment review function on the ACT Mental Health Tribunal by including improvement in psychiatric condition as a precondition to making a compulsory treatment order.[4]
By contrast, the prerequisites for compulsory admission to hospital in NSW, which have been transplanted intact from the NSW MHA 1990 into s 14 of the NSW MHA, conform quite rigidly to the core set of three prerequisites outlined above:
[T]he person is suffering from a mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary … for the person’s own protection from serious harm, or … for the protection of others from serious harm.[5]
Considered on its own, this test only implies a treatment review role for the NSW Mental Health Review Tribunal. A need for ‘control’ alone — evoking images of restraint potentially absent positive intervention with medication or other forms of treatment — appears to satisfy the need for treatment criterion. In fact, Justice Santow of the NSW Court of Appeal has found that the NSW MHA 1990 provided no ‘assurance that treatment made available to a person against his or her will … will be efficacious’.[6]
With respect, Justice Santow’s analysis on this point is far from persuasive and calls into question the legitimacy of the policy underlying mental health legislation. Mental health legislation may fall short of providing a distinct legally enforceable right to effective care for compulsory patients. However, at a minimum, the express statutory criteria for detention in hospital preclude taking this coercive measure unless the treatment to be provided to an individual while detained is likely to be ‘efficacious’ in the sense that it will in fact reduce the alleged risk of harm. If Justice Santow’s analysis were correct, interference with individual liberty for no good reason would be permissible. In fact, even where the statutory criteria for compulsory treatment do not expressly include treatment efficacy, such a precondition is implied by virtue of the principle of reciprocity inherent in these criteria. This principle requires ‘commitment … [to] bear some relevance to the purpose for which it is sought’.[7]
The prerequisites for compulsory treatment suggest at the very least that mental health tribunals have a negative obligation not to authorise compulsory treatment in certain circumstances if the proposed treatment will be ineffective in the limited terms envisaged by those prerequisites. In addition, discharging this obligation ‘can lead almost inexorably to a wider discussion of the patient’s care and future plans’.[8] In particular, the final core prerequisite, often called the ‘least restrictive alternative’ principle (which rules out compulsory treatment where other care of a less restrictive kind is appropriate and available in the circumstances), calls for assessment of the impact of the treatment to be provided under a compulsory treatment order as compared to other possible forms of treatment.
The contentious question, however, is whether the treatment review role of mental health tribunals encompasses a positive obligation to ensure that effective treatment will be provided to a person subject to a compulsory treatment order — and, if not, whether mental health tribunals should have such a function. Alternatively, should this kind of quality assurance role instead be reserved exclusively for health and allied health professionals and oversight mechanisms within the health service system?
Turning to the treatment plan review, or approval, function of mental health tribunals provides some of the answer to that question.
A second aspect of the treatment review role of mental health tribunals involves approval or review of the treatment plan to be followed while an individual is a compulsory patient. In 2003 the Vic MHA underwent reforms which saw the introduction of two elements:
• a statutory obligation for psychiatrists to prepare and revise an individualised treatment plan for each client pursuant under s 19A; and
• an additional duty of the Victorian Mental Health Review Board under s 35A to review the treatment plan prepared for a compulsory patient on every appeal and review conducted in respect of the person.
The legislation provides that the Board may order the psychiatrist to revise a treatment plan if it does not satisfy the relevant requirements in s 19A or is not capable of being implemented by the mental health service responsible for the person’s treatment.
The NSW Mental Health Review Tribunal only has an express treatment plan approval function when it is hearing an application for a CTO: the panel must be satisfied that the supervising health care agency ‘has an appropriate treatment plan for the affected person and is capable of implementing it’ before making a CTO.[9] However, given the implied treatment efficacy function discussed above, is a power to require clinicians to rethink the treatment proposed to be provided under a compulsory treatment order — similar to the power expressly conferred on the Victorian Mental Health Review Board to order the revision of a treatment plan — implied regardless of whether or not a tribunal has an express treatment plan review function?
The ACT MHA contains a highly circumscribed express treatment review role for the Mental Health Tribunal in this respect. Sections 32 and 36D provide that clinicians do not have to prepare written determinations about proposed treatment until after the tribunal has made a compulsory treatment order. This means that the tribunal does not have to approve a written treatment plan as a precondition to making a compulsory treatment order. Yet this approach is arguably at odds with the particularly strong treatment efficacy prerequisite for compulsory treatment in the ACT MHA: the legislation provides that the panel must be satisfied that the proposed treatment is likely to result in actual improvement in the person’s condition before making an order. But how can the panel be satisfied this prerequisite is met without considering in some detail the types of care to be provided under an order?
A tribunal panel generally seeks the opinion of various clinicians, such as psychiatrists and social workers, involved in providing care to a person about their condition during a hearing, and may ask questions about future care plans. In addition, clinicians may be required as a matter of policy to provide reports to the panel. In other words, the ACT Mental Health Tribunal may well need to gather information about proposed treatment in order to reach a decision about whether compulsory treatment is warranted even though it has no express treatment plan approval function, an imperative which may be explained by an implied treatment efficacy prerequisite. The contradiction between the strong treatment efficacy prerequisite in the ACT MHA and the lack of an express treatment plan approval function for the tribunal is nonetheless one example of the tension between the treatment review role of tribunals and their express functions and powers, or lack thereof, which may assist in giving effect to this role.
While a role to review or approve treatment plans clearly feeds into the treatment review role of tribunals, it may also operate as a kind of smoke screen. A written document outlining treatment to be provided does not provide any real assurance that effective treatment will in fact be provided or that the plan has been formed in genuine consultation with the client. Genuinely involving consumers in decisions about their treatment is now considered to be best practice within mental health policy.[10] And from a legal perspective, procedural fairness demands that participants in tribunal proceedings are made aware of adverse charges and given an opportunity to respond. Yet a study of the Victorian Mental Health Review Board questioned how ‘fair’ the Board’s proceedings are, given that patients are often not in attendance or represented and have minimal input during hearings compared to health service representatives.[11] British mental health tribunal and comparable US processes have often been criticised for being little more than a ‘rubber-stamp’ for clinical decisions, or at least failing to sufficiently consider the merits of the position put forward by health services seeking a compulsory treatment order.[12] Features of the NSW MHA indicate that the role of the Mental Health Review Tribunal may well be circumscribed in the future, shifting further towards ‘rubber-stamp’ approval.
Most of the reforms made by the NSW MHA relating to the Mental Health Review Tribunal have the potential to minimise the tribunal’s exercise of formal control over the provision of compulsory care, indicating that the tribunal’s more substantive ‘treatment review’ role is certainly now off the agenda. Hearings may be conducted less frequently under the new regime, with an extension of the maximum time period between mandatory tribunal hearings for both people who are detained in hospital and people subject to CTOs from six to 12 months.[13] Section 150 of the NSW MHA envisages a significant change in the composition of the decision-making body for each hearing, allowing a panel to be constituted by one member alone, arguably further diluting the prominence of treatment considerations. A hallmark of this tribunal to date has been that all hearings are conducted by a three member multi-disciplinary panel, comprising a lawyer member, psychiatrist member and a third member with relevant experience and skills such as a psychologist, social worker or mental health client.
If formal oversight occurs less frequently, this may reduce the opportunity for meaningful review of any kind and distance the tribunal further from the everyday service-related problems which determine the likely effectiveness of care to be provided to compulsory patients. One-member panels would be less well-equipped than multidisciplinary panels to assess the complex and interconnected ‘legal’ and ‘treatment’ issues that arise during proceedings. The reforms may, therefore, have a direct negative impact on the quality of substantive decision-making. A person’s condition and needs can change rapidly, so regular oversight by a tribunal can be critical to ensure compulsory treatment is not continued where a person’s circumstances no longer satisfy the relevant statutory prerequisites. Another advantage of the review process is that it may indirectly enhance the quality of service provision by virtue of the authoritative ‘shadow’ it casts over the service environment, thereby ‘focusing’ the thinking of treating teams and increasing the transparency and accountability of clinical decision-making.[14]
The report of the Mental Health Review Board Working Party as part of the Western Australian review of mental health legislation, in stark contrast to equivalent sections of the NSW review, considered in some detail areas in which the Board’s role might be expanded with a view to improving the quality of services provision. These included: more effective review of treatment in terms of least restrictive option being applied; the definition of treatment; reporting individual and systemic concerns discovered; and review of complaints on access to records.[15] The importance of minimising the ‘dark figure’ of mental health by providing effective mental health care is surely intensified when it comes to the jurisdiction of mental health tribunals because of the substantial loss of liberty entailed.
The various statutory provisions outlined above indicate that a principle of ‘no control without effective care’ is embedded in mental health legislation and that the treatment review role of mental health tribunals is aimed at upholding this principle. A number of commentators advocate a principle of ‘reciprocity’ precluding deprivation of liberty unless there is a corresponding duty on the relevant mental health service to provide adequate and appropriate treatment.[16] However, the precise role of mental health tribunals within such a framework is ambiguous.
In practice, tribunal decision-making can take quite a nuanced form when influencing the treatment a person ultimately receives from health or community services, including choosing between:
• involuntary treatment in the community (allowing greater freedom) and hospitalisation;
• selecting the maximum term for the order or reducing it to take account of individual needs; or
• making changes to, or ordering the revision of, the treatment plan.
In addition, tribunal panels sometimes carve out a clear role for themselves to exercise some control over the direction of treatment planning regardless of the presence or absence of express powers to do so. Panels may take direct or indirect action affecting a person’s care as a compulsory patient, thereby performing a more assertive treatment review role. This usually involves making informal recommendations, for example about the types of interventions called for beyond medication, community care arrangements, or a person’s social needs relating to employment or accommodation. Adjournments may be used as an avenue to achieve an outcome negotiated between the different participants, or in more extreme cases as a means to put pressure on treating teams to follow a preferred course of action.[17]
A Victorian study found that many of the psychiatrists interviewed considered the Board’s approach an unacceptable intrusion into the clinical domain of diagnosis and treatment.[18] In defence of the treatment review role of mental health tribunals, it should firstly not be forgotten that external decision-making is considered necessary in this area because decisions about compulsory treatment are unavoidably about an individual’s control over their lives and conversely restriction of individual freedom by the state. In addition, the care-related issues arising during tribunal proceedings are not purely clinical questions. They are intertwined with broader social and cultural circumstances, which clinicians may not have the expertise and breadth of experience to assess in every case. The service-related issues arising in mental health tribunal proceedings are certainly not the domain of one profession or cultural group alone. A response from several different service systems, agencies and professions is often required to provide an individual with optimum care; and there is often fragmentation between these various participants, and lack of parity in their vision of appropriate care and support.[19] On their own, each of medication, accommodation and
psycho-social support may fail to amount to ‘effective care’. Instead, an holistic approach may be needed integrating all three.
The multidisciplinary membership of mental health tribunals equips them better than most to balance the different legal, social and clinical considerations involved in providing mental health care to give effect to the objective of mental health legislation to provide the best possible care in the manner least restrictive of civil rights. The Victorian reforms introducing a role for the Board to review statutory treatment plans were motivated by the consideration that a ‘review would make the treatment planning process more accountable and responsive to an individual’s needs’,[20] evidencing some consensus that tribunal processes can assist in improving the effectiveness of care. The existence of the dark figure of unmet treatment needs in mental health, then, may ultimately compel mental health tribunals to perform their rightful treatment review role more rigorously.
Expanding the express powers of tribunals to enable them to give directions necessary to ensure compliance with a decision, or in the interests of the person to whom the decision relates, may be a useful reform that could assist to minimise the ‘dark figure’ of unmet needs in mental health. As early as 1970, a British study of mental health tribunal decision-making flagged the issue of tribunals’ powers to influence decisions about treatment planning as one warranting further consideration:
[T]he difficult question of extending the very limited powers of these tribunals must be mentioned here. The adjournment cases … illustrate some of the ways in which tribunals extend their powers by persuading [registered medical officers] to allow patients home on trial leave. In other cases tribunals encouraged them to try patients on open wards or on work outside hospitals. Sometimes doctors objected to these suggestions as unwarranted interference in treatment — but most of them acquiesced without complaint or loss of dignity.[21]
Readings of mental health legislation by the ACT Supreme Court and Western Australian Mental Health Review Board have reached different conclusions about whether tribunals may compel clinicians to give effect to a compulsory treatment order. In practice, the willingness of health services — or their ability to do so within an overburdened health system — to implement an order may determine the impact it has on the everyday lives of service users.
The ACT Supreme Court has held that the power of the Mental Health Tribunal to make a compulsory treatment order is effectively contingent on the ‘consent’ of the supervising psychiatrist to such an order.[22] By contrast, the Western Australian Mental Health Review Board, considering whether it could make a CTO where the treating team was of the view this was inappropriate, decided: ‘it is unlikely that Parliament would have intended that the power expressly given to the Board to order that a CTO be made would be rendered useless because one or more psychiatrists disagreed with the Board’s opinion’.[23]
These conflicting views may be explained in part by valid differences between frameworks for tribunal decision-making in these two jurisdictions. Even so, the potentially drastic differences between real life outcomes depending on which view is adopted underscores the need to confront the strengths and weaknesses of treatment review head on. The Western Australian Mental Health Review Board working party reached general agreement that these functions of the Board needed to be better defined and broadened.
In other international jurisdictions, there is less discomfort about legal decision-makers playing a more direct role in facilitating the provision of health services. The legal framework for mental health care in Germany, for example, provides for a range of care and rehabilitation options and a more active role for the courts in accompaniment. A unique characteristic of German health care laws is that:
they oblige the general providers of psycho-social care to create special services and institutions for mental health which exist parallel to the regular health system and provide an accessible and community orientated counselling service … These requirements include the provision of interdisciplinary counselling and care, and the provision of a complex range of services for sufferers of mental illness, or physically, mentally or intellectually disabled persons.[24]
A special Social Court has been established to allow patients to pursue this statutory right to care in the courts. The gap between this approach and those in most Australian jurisdictions in part flows from contrasting cultural perspectives about what laws can and should achieve when it comes to welfare, health and disability.
It is important to recognise that there are limits on the extent to which the law can be used to improve standards of care. However, reform of Australian (mental) health laws should surely be guided by an ideal vision, informed by alternative approaches on the international stage, rather than assuming limitations at the outset. In fact, as already shown, some Australian tribunals are already given a broader mandate to ensure realisation of the wider health care goals of mental health legislation. The most extreme example of such an ‘empowered’ Australian tribunal is the Tasmanian Mental Health Tribunal constituted under the Mental Health Act 1996 (Tas). Section 65 of the legislation provides that the tribunal, when reviewing a decision or order, may:
• confirm or vary the decision, or revoke the decision and substitute a different decision,
• give such directions necessary to ensure compliance with the tribunal’s determination; and
• give other directions considered necessary or desirable in the interests of the person.
Non-compliance with a determination of the tribunal is an offence liable on summary conviction to a fine or imprisonment for a year under s 67.
The preferable framework for mental health tribunal decision-making, I would suggest, is one which empowers tribunals to effectively perform their treatment review role. However, this role should ideally be exercised in a flexible and responsive — rather than authoritarian — fashion, with due sensitivity to the difficulties faced by service providers in delivering quality care.[25] At the same time, service providers should respect the authority of mental health tribunals to play a limited role in monitoring the types of care provided to compulsory patients. This article has considered the operation of the mental health (legal) system by looking specifically at the role of mental health tribunals. Drawing attention to ideological failings of existing frameworks for the regulation of mental health care and proposing new alternatives is an equally important exercise.[26] However, as these frameworks are likely to stay, in the short term at least, we are doing mental health service users an injustice if we do not attempt to confront the difficulties surrounding the treatment review role of tribunals.
[*] FLEUR BEAUPERT is a doctoral student, Faculty of Law, University of Sydney.
© 2007 Fleur Beaupert
email: fbea8132@mail.usyd.edu.au
[1] ‘System founders on tip of the mental health iceberg’, The Age (Melbourne), 12 November 2007, 12; N. Wallace, ‘Don’t let another die like this’, Sydney Morning Herald (Sydney), 15 October 2007, 5.
[2] G Andrews, C Issakidis and K Sanderson, ‘Utilising Survey Data to Inform Public Policy: A Comparison of the Cost-effectiveness of Treatment of Ten Mental Disorders’ (2004) 184 British Journal of Psychiatry 526–533, 532.
[3] M Karras, A McCarron, A Gray, S Ardasinski, On the Edge of Justice: The Legal Needs of People with a Mental Illness in NSW (2006).
[4] ACT MHA s 28.
[5] Emphasis added.
[6] Hunter Area Health Services v Presland [2005] NSWCA 33; (2005) 63 NSWLR 22, 120.
[7] S P Sarkar and G Adshead, ‘Black Robes and White Coats: Who Will Win the New Mental Health Tribunals?’ (2005) 186 British Journal of Psychiatry 96, 97. The United States Supreme Court has found that the Due Process clause of the US Constitution imposes a limited duty on the state to provide the ‘training’ necessary to protect the liberty interests of involuntarily hospitalised patients. Youngberg v Romeo 457 US 307 (1982)
[8] G Richardson and D Machin, ‘Doctors on Tribunals: A Confusion of Roles’ (2000) 176 British Journal of Psychiatry 110, 113.
[10] Australian Health Ministers, National Mental Health Plan 2003–2008 (2003) Canberra.
[11] P A Swain, ‘Admitted and Detained — Community Members and Mental Health Review Boards’ (2000) 7(1) Psychiatry, Psychology and Law 79.
[12] B J Winick, Civil Commitment: A Therapeutic Jurisprudence Model (2005), 143; E Perkins, Decision-Making in Mental Health Review Tribunals (2003), 129; J Peay, Tribunals on Trial: A Study of Decision-Making under the Mental Health Act 1983 (1989), 209.
[13] NSW MHA ss 37 and 53(6). For people who are involuntarily hospitalised, reviews must be conducted every 3 months in the first 12 months and subsequently every 6 months, but the Tribunal has a discretion to conduct annual reviews in ‘appropriate’ cases.
[14] E Grundell, ‘Psychiatrists’ Perceptions of Administrative Review: A Victorian Empirical Study’ (2005) 12(1) Psychiatry, Psychology and Law 68, 84.
[15] Government of Western Australia, Department of Health, Review of Mental Health Act 1996 and Criminal Law (Mentally Impaired Defendants) Act 1996, Mental Health Review Board Working Party <http://www.health.wa.gov.au/mhareview/reports/working/ MHRB%20FINAL%20%20-180303.pdf> at 10 June 2006, 1.
[16] N Eastman, ‘Mental Health Law: Civil Liberties and the Principles of Reciprocity’ (1994) 308 British Medical Journal 43.
[17] T Carney, D Tait and F Beaupert, ‘Pushing the Boundaries: Realising Rights through Mental Health Tribunal Processes?’ (Unpublished paper, 2007).
[18] L Brophy, The Impact of the Mental Health Review Board on Psychiatric Service in Victoria (PhD Thesis, La Trobe University 1995) 91.
[19] H Herrman, T Trauer, J Warnock, J and Professional Liaison Committee (Australia) Project Team, ‘The Roles and Relationships of Psychiatrists and Other Service Providers in Mental Health Services’ (2002) 36(1) Australian and New Zealand Journal of Psychiatry 75.
[20] Victoria, Parliamentary Debates, Legislative Assembly, 18 September 2003, 578 (Ms Pike).
[21] C Greenland, Mental Illness and Civil Liberty: A Study of Mental Health Review Tribunals in England and Wales (1970) 90.
[22] J v V [1995] ACTSC 66 [115] (Higgins J).
[23] Mental Health Review Board of Victoria, Annual Report 2005 (2005), 25.
[24] W Reichel, J Utshcakowski and B Hochschule, A Comparison of the Legal Framework of Mental Health Care in England, Italy and Germany (2004) Weiterbildung Ambulante Psychiatrische PflachkrankenPflege) <http://www.wap-leonardo.de/eng/downloads/legalFrameworkUK.pdf> at 1 June 2007.
[25] See I Ayres and J Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (1992).
[26] See, eg, J Dawson and G Szmukler, ‘Fusion of Mental Health and Incapacity Legislation’ (2006) 188 British Journal of Psychiatry 504; T Wand and M Chiarella, ‘A Conversation: Challenging the Relevance and Wisdom of Separate Mental Health Legislation’ (2006) 15(2) International Journal of Mental Health Nursing 119.
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