Maylea, Chris --- "Tensions in the work of mental health tribunals" [2019] PrecedentAULA 5; (2019) 150 Precedent 13

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TENSIONS IN THE WORK OF MENTAL HEALTH TRIBUNALS

By Dr Chris Maylea

Mental health tribunals are tasked with finding a balance in tensions which exist in many areas of law: between the rights of the individual and what is deemed to be in their best interests; between due process and expediency; and between the protection of the community and the wellbeing of the individual.

This article explores the role mental health tribunals play at the intersection of the legal and mental health systems, the way in which they extend and formalise the power of the mental health system, and the ways in which they can perpetuate discrimination and structural inequalities for an already very disadvantaged group of people. Bound by mental health legislation which reflects competing public, medical, legal and critical priorities, mental health tribunals face the impossible task of reconciling irreconcilable tensions. This article presents an overview of mental health tribunals, identifies and examines some key tensions in their role, and proposes some reforms which would rectify some of the issues identified.

OVERVIEW

Mental health tribunals sit within the framework of mental health law, which in all Australian jurisdictions is a distinct piece of legislation, separating mental health law from other disability or health law.^[1] This article focuses on the similarities shared by tribunals across Australia rather than attempting to analyse the differences in each jurisdiction. Tribunals are generally composed of three members: a psychiatrist, a lawyer and a community member, who may be a consumer, carer, mental health professional, academic or have some other qualification.

Mental health tribunals hear applications to make or revoke orders relating to mental health treatment, and detention for treatment. These powers have historically been held by individual psychiatrists, who operated without formal oversight processes. Tribunals introduce oversight, accountability and transparency to some of these decisions, although much power still remains with the treating psychiatrist.

In the mental health context, treatment is commonly psychotropic medication, but can also include electroconvulsive therapy (ECT) or neurosurgery, although this can vary across jurisdictions. Tribunals may also make forensic or security orders or review cases of people who have been found not guilty by reason of mental illness or found unfit to be tried or in some jurisdictions make orders regarding financial administration.

Treatment orders do not usually allow tribunals to make actual treatment decisions, although they may decide if the treatment will be in a hospital or in the community. Instead, they transfer power to other decision-makers, usually psychiatrists, to make decisions about treatment such as medication and dosage. Orders may authorise a specific treatment, such as ECT, giving permission for the psychiatrist to proceed with that specific treatment rather than formulating a general treatment plan. In most cases, the psychiatrist will already have made a short-term order allowing treatment, so the tribunal is sitting either to make a longer-term order or to hear an appeal or undertake a review of an existing order. This means that tribunals undertake an oversight role, theoretically ensuring that legal rights are upheld in medical mental health settings.

In deciding whether to make an order, tribunals are required to determine if set criteria apply. These criteria vary by jurisdiction but usually require that the person has a mental illness or is mentally disordered; that they pose a risk of harm to themselves or others; and that there is no less restrictive way for the person to receive treatment. In some jurisdictions, such as Western Australia and Tasmania, a person must also lack the capacity to make decisions about treatment themselves. In other jurisdictions, a person who has full capacity to make decisions can still be forcibly treated.^[2]

Prior to the hearing, tribunals will generally get a report from the psychiatrist, which will set out the person’s history and how they meet the treatment criteria. During the hearing, the tribunal will hear from the person, the psychiatrist, any other mental health professionals involved in the person’s treatment, any family members or friends present and, if the person has one, a lawyer.

TENSIONS

The main tension which mental health tribunals attempt to resolve is between respecting a person’s autonomy to make their own decisions at one end of the spectrum and substituted decision-making (ostensibly in the person’s best interests) at the other. For most people, medical treatment is a choice. For a person who is ‘of sound mind’ or who has capacity to give consent, medical treatment without consent is likely to be a tort or a criminal act.^[3] For mental health tribunals, this may not appear to be a problem, as it might be assumed that people who are diagnosed with mental illness are obviously not of sound mind and so should have somebody else make decisions for them.

Fortunately, this assumption has long been displaced, with the ‘myth of incompetency’ now understood as a function of discrimination and stigma.^[4] People who are in mental distress may experience difficulty in making some decisions, but this is no longer considered a sufficient reason to take away their right to make all decisions. Even under a traditional model of capacity, just because a person has a diagnosis of mental illness does not mean they will never be able to make any decisions, as their distress may be cyclical, treated with medication, or may not be related to the decision in question. A person who hears voices, for example, will not automatically make questionable decisions about what to eat for breakfast. The decisions in question are also often deeply personal and make subjective judgements problematic. A person may decide that they would prefer the experience or consequences of mental distress to the unwanted effects of medication, but mental health tribunals are often asked to overrule such decisions. This means that mental health tribunals are awkwardly positioned in a framework which is explicitly designed to make sure people make ‘good’ decisions while facing the reality that this is very difficult to do in practice.

Further complicating this is the Convention on the Rights of Persons with Disabilities (CRPD).^[5] Article 25 of the CRPD requires ‘health professionals to provide care of the same quality to persons with disabilities as to others, including on the basis of free and informed consent’. This means that according to international law, people cannot be forced to receive treatment, undermining the very foundation of mental health tribunals. This also raises the problem that people who are forced to receive treatment often receive poor quality treatment. People who are diagnosed with a mental illness have a life expectancy 20 years less than their counterparts in the general population, largely due to the side effects of medication and poor service provision.^[6] While mental health tribunals can force people to comply with treatment, they have no power to force services to provide high-quality or even adequate treatment to people who require it, much less force government to provide necessary housing and other social services.

The CRPD also states in art 12 that ‘persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life’ and requires that signatories ‘take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity’. This means that rather than taking away a person’s right to make decisions, tribunals are required to provide whatever support they need to make decisions. As they are currently configured, tribunals are not well-positioned to provide decision-making support. In practice, mental health tribunals are bound by the laws that establish them and empower them, which are not compliant with the CRPD. They are required to determine if treatment criteria are met, and where this is inconsistent with the CRPD, they are powerless to act in accordance with international law. The United Nations Committee on the CRPD has stated that ‘substitute decision-making regimes such as... mental health laws that permit forced treatment... must be abolished in order to ensure that full legal capacity is restored to persons with disabilities on an equal basis with others’.^[7] The abolition of mental health legislation seems unlikely to occur in the current policy and practice environment.

A secondary tension present in all mental health tribunals is that they seek to find a compromise between legal rigour and medical expediency. Mental health tribunals are expected to provide an auditory role, imposing limits on the power of psychiatrists and maintaining the rights of people who are subject to involuntary treatment. This is made difficult by the expectation that they must dispense extremely fast-paced justice with a minimum of formal legal or administrative processes. Implementing a process that dispenses justice expeditiously with minimal formality is intentional, so that the legal system can then match the speed of the medical system in an environment which is not conducive to delays or detailed and complex processes. A person might meet a lawyer only the day before their hearing, if they are lucky enough to have access to one. Legal representation varies by jurisdiction, sitting for example at 15 per cent in Victoria and 69.8 per cent in NSW.^[8] The rules of evidence are relaxed, and while each tribunal would ordinarily be presided over by a legal member, the medical and community members are not legally trained. Appeals are often to a higher tribunal, where the appeal is heard de novo, meaning there is limited judicial oversight on tribunal decisions in the original jurisdiction. This lack of legal rigour is ‘necessary’ in so much as there is insufficient funding to provide equitable access to legal representation, and also ‘necessary’ in that the demands of medical treating teams require minimal paperwork and maximum expediency. This hints at a major limiting factor for tribunals, in that they must make orders cognisant of the lack of appropriate services and knowing that what services do exist are often unable to meet all the needs of those who use them. This results in a situation familiar to legal practitioners in many areas, where the legal rights of people in the system are sacrificed to pragmatism.

In this compromised space tribunals are often presented with a snapshot of a person which is rarely representative of that person’s experience. People who are forced to receive mental health treatment are often very distressed, heavily medicated, at crisis points in their lives and experiencing other stressors in their relationships, housing or other areas of their lives. Tribunals must then make decisions based on limited information which would rarely be admissible in a court. For example, applications for treatment orders are usually required to be made by authorised psychiatrists, but in practice, the authorised psychiatrist may never have met the person. Applications and reports will be written by junior doctors and allied health professionals, often copied and pasted from other reports and case files. High turnover in the mental health sector means interpersonal relationships with treating teams are often disrupted, and consequently tribunals are often required to make decisions on limited evidence. Tribunal hearings commonly take less than an hour, which is often much less time than would be ideally required to assess a person’s situation and make a decision. In order to genuinely work with a person and make a decision about what is most likely to be most therapeutic for them, a genuine therapeutic relationship is required. The compromise obviously has significant benefits in reduced bureaucracy and increased efficiency, but clearly leaves much to be desired in terms of therapeutic intervention or rights protection.

A third key tension in the role of tribunals is the expectation that they will protect both the person and the broader community from harm. This is perhaps the most unreasonable expectation placed on tribunals. Studies have consistently shown that forced treatment and psychiatric detention are not reliable ways to prevent either suicide or harm to others.^[9] Both risks of suicide and violence to others have stronger correlations to factors other than a diagnosis of mental illness, and the evidence base for prevention clearly indicates that better care and support, not more detention, protects society from harm. Tribunals are asked to make decisions based on limited or questionable evidence, either without formal risk assessment tools or with tools that have a very wide margin of error. For lawyers wishing to adopt a human rights approach, this is a very problematic state of affairs.

Many more issues could be addressed here, but these three key tensions dominate the work of mental health tribunals. Despite appearing insurmountable, much can be done to address them at the policy and practice levels.

REFORMS

Clearly, Australian jurisdictions are not about to abolish their mental health legislation as the CRPD Committee has suggested. However, there are other ways to move towards compliance with the CRPD and minimise the undesirable outcomes identified above. Scholarship around the CRPD indicates that a model of supported decision-making holds the most promise.

Australian mental health tribunals currently waver between substituted decision-making, where the tribunal makes decisions on behalf of the person, and shared decision-making, where the tribunal involves a person in making decisions but retains the final say. In a supported decision-making model, people are supported to make decisions but they retain the final say.^[10] Other approaches include assisted decision-making, where a person is provided information but is not actively supported to make the decisions, or independent decision-making where nothing is provided.

Figure 1 - A continuum of decision-making^[11]

Supported decision-making requires positive relationships between the decision-maker and decision support, so it cannot be imposed from above, and people must be allowed to choose who helps them to make decisions. This means that a formal tribunal cannot appoint itself or a third party as a decision-supporter. This requires a rethink of how people in mental distress can be supported to receive the treatment and care that they identify they need and want. There is a developing body of work which shows that it can be done and that when it is done, it works.^[12]

One reform that would support this outcome is empowering mental health tribunals to require mental health services to provide whatever care is required and require government to adequately fund that care. Consistently, tribunals order the continued detention of people because they would otherwise become homeless, or make orders requiring them to take medication in cases where mental health services have not attempted other options. If tribunals could compel appropriate care, treatment and support, the need for much compulsory treatment would be significantly reduced. There is clearly a limited appetite for this concept. However, not only is it consistent with international law, but it might actually result in the appropriate provision of care.

This will, of course, require a significant investment in resources, both for the tribunal to ensure that it has the capacity to give each person due consideration and formulate an appropriate response, and a corresponding investment in services to ensure that they can meet increased demand. It would, however, depoliticise service provision in a way not dissimilar to how the National Disability Insurance Scheme (NDIS) was intended to work.

This revolution in the function of mental health tribunals seems unlikely at best but does steer us towards a number of opportunities for lawyers appearing at these tribunals. As lawyers, we can inject legal rigour in the processes. We can highlight opportunities for alternative treatment options, particularly by working with mental health professionals or non-legal advocates to develop alternatives that will work for the people involved. We can ensure that we spend sufficient time with people we represent so that we can present a fuller picture of their experience to tribunals, and so that we can work from a position of trust. These boil down to good quality lawyering, paired with sector level advocacy to support necessary reform and adequate resourcing.

Currently, mental health tribunals exist in a context of competing tensions which result in problematic processes and unwanted outcomes. Resolving these tensions will require ongoing sector leadership, but while we wait for that, lawyers can make a real difference to the lives of the people we represent.

Dr Chris Maylea is a mental health lawyer, social worker, academic and consultant. He teaches mental health and welfare law at RMIT University, researches in the area of compulsory mental health, and regularly appears before the Victorian Mental Health Tribunal. He consults to the National Mental Health Commission and other government bodies and regularly provides training on mental health law and compulsory treatment to mental health professionals. EMAIL [e-mail].

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^[1] Mental Health Act 2014 (Vic); Mental Health Act 2007 (NSW); Mental Health Act 2015 (ACT); Mental Health Act 2016 (Qld); Mental Health Act 2014 (WA); Mental Health Act 2013 (Tas); Mental Health Act 2009 (SA).

^[2] C Maylea and C J Ryan, ‘Decision-making capacity and the Victorian Mental Health Tribunal’, International Journal of Mental Health and Capacity Law, No. 23, 2017, 87.

^[3] Hunter and New England Area Health Service v A [2009] NSWSC 761, 11.

^[4] L O Gostin and L Gable, ‘Global mental health: Changing norms, constant rights’, Georgetown Journal of International Affairs, Vol. 9, No. 1, 2008, 83.

^[5] Convention on the Rights of Persons with Disabilities (CRPD) 2007 (resolution 61/106), opened for signature on 30 March 2007, entered into force on 3 May 2008.

^[6] R Roberts et al, ‘Improving the physical health of people living with mental illness in Australia and New Zealand’, Australian Journal of Rural Health, Vol. 26, No. 5, 2018, 354.

^[7] Committee on the Rights of Persons with Disabilities, General Comment No. 1, Article 12: Equal Recognition before the Law, 11th sess, UN Doc CRPD/C/GC/1 (19 May 2014).

^[8] Victorian Mental Health Tribunal, Annual Report 2016-2017 (Mental Health Tribunal, 2017) 52, <https://www.mht.vic.gov.au/forms-and-publication/mental-health-tribunal-annual-reports-2/>; NSW Mental Health Review Tribunal, Annual Report 2016-17 (2017) <https://www.mhrt.nsw.gov.au/files/mhrt/pdf/MHRT%20Annual%20Report%20Final%202016%2017.pdf>.

^[9] M M Large and N Kapur, ‘Psychiatric hospitalisation and the risk of suicide’, The British Journal of Psychiatry, Vol. 212, No. 5, 2018, 269; S Gupta et al, ‘Community treatment orders in England: Review of usage from national data’, BJPsych Bulletin, 2018, 1; M M Large et al, ‘Can we usefully stratify patients according to suicide risk?’, BMJ, 359:j4627, 2017; S P Segal, ‘Civil commitment law, mental health services, and US homicide rates’, Social Psychiatry and Psychiatric Epidemiology, Vol. 47, No. 9, 2012, 1449.

^[10] M B Simmons and P M Gooding, ‘Spot the difference: Shared decision-making and supported decision-making in mental health’, Irish Journal of Psychological Medicine, 2017, 1.

^[11] Adapted from: W Bennetts et al, ‘The “tricky dance” of advocacy: A study of non-legal mental health sdvocacy’ [In press] International Journal of Mental Health and Capacity Law, 19.

^[12] R Kokanović et al, ‘Supported decision-making from the perspectives of mental health service users, family members supporting them and mental health practitioners’, Australian & New Zealand Journal of Psychiatry, Vol. 52, No. 9, 2018; P Gooding et al, ‘Alternatives to coercion in mental health settings: A literature review’ (Melbourne Social Equity Institute, 2018) <www.socialequity.unimelb.edu.au>.