Last month, several psychiatric patients receiving involuntary treatment came forward to help publicise shortfalls in Victoria’s support programs. Among them was Cheryl Hipworth, who had multiple appeals to the Victorian Mental Health Review Board turned down and was forced to take heavy doses of anti-psychotics. It was only when her family and a mental health advocate intervened and lobbied the Board that Hipworth’s involuntary treatment was concluded. According to her brother Gary, the cessation of her involuntary treatment helped improve Hipworth’s condition. "The beauty of it is she has got her life back and I'm going to help make sure there is no slipping back," he told The Age.
The Mental Health Review Board is an independent tribunal charged with deciding whether psychiatric patients in Victoria meet the criteria for involuntary treatment. Despite its powers to deny personal liberty, the Board’s annual report (pdf) reveals that of the 6011 hearings conducted in 2012-13 just 721 patients had legal representation. This means just 12 per cent of patients had a legal advocate to challenge orders that can compel individuals to be detained in a mental health facility, forcibly restrained, or forced to take medication in order to be released into the community. As legal representation is not an automatic right in Victoria, it is the patient’s responsibility to organise an advocate. Considering family members of patients attended (pdf) less than 9 per cent of hearings, and friends less than 1 per cent, it is clear the majority of involuntary patients are socially isolated and significantly disempowered.
Patients must meet five criteria to be considered for an involuntary treatment program; they must appear to be mentally ill, their illness must require immediate treatment; they must present a significant safety risk to themselves or others, the person must have refused necessary treatment or be unable to consent to it, and there must not be a less restrictive treatment option available. Patients must be discharged if the Board cannot explain how a patient meets all five criteria — but mental health diagnosis is often subjective at best, and treatment options are often limited by the practitioner’s own biases. In 2012-13, just over half of all hearings were conducted without the patient present and the Board discharged (pdf) just 372 patients (about 6 per cent) from their involuntary treatment orders.
Last year the Victorian Minister for Mental Health, Mary Wooldridge, announced new legislation would be central to the government’s plan to reform the state’s Mental Health Act. A Department of Health paper (pdf) released in October 2012 outlined the key reforms and policy objectives of the new Act, promising to safeguard the rights of mental health patients by reducing the duration of involuntary treatment, and encouraging the use of least-restrictive options. The Mental Health Review Board will become the Mental Health Tribunal, and will be given the capacity to issue temporary assessment orders lasting up to 72 hours, as well as 28-day community treatment orders. Previously, the Board could only issue treatment orders of six or twelve month durations. The new legislation will also allow involuntary patients the right to a second medical opinion (pdf) regarding their treatment order at any time.
The reforms show a commitment to the use of least-restrictive treatment that should be commended. But the lack of representation for involuntary patients at review and appeal hearings is an ongoing area of concern.
The reforms proposed by the Coalition government do little to address this power imbalance. Less than 1 cent of patients are able to hire a private lawyer, with Victorian Legal Aid and the Mental Health Legal Centre (MHLC) essentially handling the case load (pdf). Victorian Legal Aid is jointly funded by the Commonwealth and state governments and in turn provided about half of the MHLC’s recurrent annual funding. The Centre was responsible for a significant victory when Justice Bell upheld the case of Kracke v Mental Health Review Board in 2009, finding the Board had breached Mr Kracke’s right to a fair trial.
However, in February this year Victorian Legal Aid made the decision to end the funding agreement and redirect the funds back to its own programs. MHLC principal lawyer Helen Versey warned the move would leave a gap in mental health legal services. "I don't believe that Legal Aid will provide the same service as this centre for people with mental illness," she told the ABC in May.
The MHLC has since found temporary support from RMIT’s Centre for Innovative Justice but the Victorian government should look carefully at fully funding the Centre as part of any reform package. It is also imperative that Victorian Legal Aid receives funding adequate to increasing demand.
Last June the service was awarded $434,000 by the Victorian Government to provide more legal help to mental health patients. This means legal advocates will be present at some 300 more Mental Health Review Board hearings over two years. Using this figure as a guide, it would cost $8.5 million a year to provide legal advocacy for all patients facing a review or appeal before the Board. Tony Abbott has already signalled his attitude to legal services by slashing $42 million from the Indigenous Policy Reform Program, which funds legal services across Australia. Victorian Legal Aid is pushed to the limit, and the future of the Mental Health Legal Centre hangs in the balance. If the Victorian Government truly wants to provide mental health patients the care they need while also protecting their liberty, it must pick up the slack by funding legal advocacy that can fight for their best interests.
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