Lacking Insight - Community Law

Lacking InsightInvoluntary Patient Experience of the Victorian Mental Health Review BoardVivienne Topp, Martin Thomas and Mim IngvarsonOctober 2008

ISB 0 9578243 4 3This project has been sponsored byAllens Arthur RobinsonDesign : : thehivedesign.com.au

Lacking InsightInvoluntary Patient Experience of the Victorian Mental Health Review BoardVivienne Topp, Martin Thomas and Mim IngvarsonOctober 2008

IntroductionIt is timely to launch this report in the yearthat Victoria’s Charter of Human Rights andResponsibilities came into full effect. Timely also asVictoria leads Australia, and indeed the world, interms of the number of people involuntarily treated oncommunity treatment orders 1 . As Tina Minkowitz sopowerfully argues in the Foreword to this report, theprocesses for reviewing and challenging involuntarytreatment are but part of the larger question – when,if at all, is it legitimate to detain or treat peopleagainst their will? While involuntary status continues,however, those processes and how they work arecrucial considerations as to the extent to whichpeople’s human rights are realised.Crucial to addressing and supporting the roleof the Board ‘as protectors of the civil rights ofpatients’ (Lesser, 2004: 243) is a considerationand understanding of the hearing process from theperspective of people appearing before it.This report articulates the findings of a qualitativestudy undertaken by the Mental Health Legal Centre(‘the Centre’). The study was initiated in response toconcerns and frustrations expressed by patients andlegal advocates that some experiences for individualsappearing before the Board were not positive orproductive.For more than 20 years a key tenet of the MentalHealth Legal Centre’s work has been the centralityof the wishes, views and experiences of those withlived experience of psychiatric disability – or thatlabel. For more than 20 years the most significantarea of the Centre’s legal, policy and communitylegal education work has been with people seekingto obtain their rights through the Mental HealthReview Board. Consistently, over this time, peoplehave expressed dissatisfaction with the processesof the Board and frustration that their views andexperiences are not considered, including in relationto Board processes and legislative reform. Theseanecdotal accounts reported feelings of humiliationfrom the perspective of the patient and it was feltfurther research was required.The late Jim Tempany, a former Legal Officer at theBoard and a person living with mental illness, alsoidentified the benefits of research to inform Boardmembers and other stakeholders of the experiencesof those subject to involuntary treatment – essentialto improve people’s experience of the process. Jimwas aware of the trauma experienced by consumers 2appearing before the Board and keen to ensure that theirviews and experiences were heard and acted upon.Amanda Noseda, a courageous and inspiringinaugural guest speaker, presented at the firstStakeholder Steering Group meeting in 2003, as aconsumer who had experienced public mental healthservices and as a Consumer Consultant working ina Victorian mental health service. She spoke ofher experience of the Board, of 6 hearings over1 John Lesser, President of the Board, stated that Victoria had a higher use of CTOs than any other jurisdiction, Mental Health Review Board Consumer and CarerForum, 22 October 2008.2 The word ‘consumer’ is used throughout the report. This is the terminology chosen by the Advisory Group. It has been chosen to describe people who: • self identify• as users of mental health services• have been diagnosed with mental illness or psychiatric disorder, or• have been active within a mental health service user movement that is aiming to bring change - both radical and incremental - to the way people labelled withmental illness are treated by services and society.Many people diagnosed with ‘mental illness’ or ‘mental disorders’ are seeking a way of positioning themselves within national debates about the efficacy of theirown treatment, recovery and related law and policy. In doing so, they feel disadvantaged by both the language of ‘patient’ and the language of ‘client’. Thereis a perception that the language of ‘patient’ has been colonised by doctors and that psychologists and social workers have laid claim to the term, ‘client’ (Ourconsumer place, Ourcommunity (2008)). It needs to be recognized, though, that the word ‘consumer’ is not the preferred terminology of all people who experiencepsychiatric disability.3

14 years. Making the point that she was relatively“high functioning” 3 , she described that experienceas “overwhelming, daunting” and one where she felt“absolutely powerless”. She continued to describeher Board appearances as the most dehumanising,degrading experience apart from seclusion. AmandaNoseda is now deceased. Her account of specificproblems with the process 4 , however, remains withus. Her experience is consistent not only with theviews of consumers interviewed for this research, butwith the experiences and views of clients and otherswith whom Centre staff have had contact.Our hope is that this research and report will lead toimproved experiences for all appellants and reviewees,and contribute to moving the broader framework ofinvoluntary detention and treatment much closer to fullrecognition of people’s human rights.We are enormously grateful for the funding supportand ongoing encouragement for this research fromthe Reichstein Foundation. Thanks also go to theInvoluntary Patient Advisory Group, Steering Group (inparticular to Professor Terry Carney and Dr David Taitfor their guidance and supervision in the developmentof the project methodology) and the Centre staff andvolunteers who worked on the Project.ContentsIntroduction 3Foreword 4PART 1: SUMMARY 8Aims 8Recommendations 9Methodology 18PART 2: THE CONTEXT 22Mental Health Review Board:Role and Human Rights Context 22Deinstitutionalisation 25Community Treatment Orders 27Timely Review 30Treatment Plans 33Therapeutic Jurisprudence 34PART 3: THE INVOLUNTARYPATIENT EXPERIENCE 38Inquisitorial v Adversarial 38The Board: A Rubber Stamp? 38Access to Information 42Consumers’ Level of Understandingof the Review Process 44Rituals of a Hearing 49The Experience of Rural Consumers 54The Experience of Koori Consumers 55The Experience of Consumersfrom Culturally and LinguisticallyDiverse Backgrounds 55Effects on Consumers’ Lives 56Consumer Suggestions for Improvement 57Legal Representation/Advocacy 574

We are also grateful to the Board, whose staff andmembers were generous with their support and time,and Sue May and the typists from Maddocks, whotranscribed the many lengthy interviews on a probono basis. We acknowledge the tireless efforts of theresearchers and authors of this important report.Our greatest indebtedness, though, is to theconsumers who were interviewed and otherwiseshared their experiences and expertise. Thoseparticipants were magnanimous in providing inputto the study, and so positive and optimistic that theissues raised by them will be seriously considered.This report is dedicated to them, to AmandaNoseda and Jim Tempany, and to all people whoexperience the mental health and legal systems, inthe determination that improvements come out ofthis research.Mental Health Legal CentreOctober 2008Copyright © 2008 Mental Health Legal Centre Inc3 This is the kind of language that consumers experience, language which contributes to the alienation that people described throughout the research project.4 Amanda Noseda, reported her experience and that of other consumers: they are only aware of a hearing when seven days notice of a hearing is presented, no onetells them they can access to their files, the medical report is often available only half an hour before the hearing and this is insufficient time to prepare, no independentsecond opinion is available, no discussion of treatment/side effects of medication, no understanding of decision or appeal rights. She told the meeting that it is the viewof most consumers that a decision was already made. She described the Board as unfriendly, no smiles, black suited and formal and the layout of the room as being veryadversarial. She said the hearing process is bewildering: the roles of members are not clear ; the five criteria are not explained and the less restrictive options not explored.She was concerned that consumers leave the hearing with their views not being considered and having been discouraged from expressing them, that all the legislationand guidelines in the world meant nothing in practice, Involuntary Patient Experience of Mental Health Review Board - Steering Group Meeting April 3 2003 MinutesIncreased Participation ofCommunity members 58Second Opinion 59Training and Review of Board Members 60Summary of Consumer Views 61PART 4: THE VIEWS OFSTAKEHOLDERS 64Inquisitorial v Adversarial 64The Board: A Rubber Stamp? 65Access to Information 66Consumers’ Level of Understandingof the Review Process 68Rituals of a Hearing 70The Experience of Rural Consumers 74The Experience of Koori Consumers 75The Experience of Consumersfrom Culturally and LinguisticallyDiverse Backgrounds 75Effects on Consumers’ Lives 75Stakeholder Suggestions for Improvement 77Legal Representation/Advocacy 77Role of Community members 79Training and Review of Board Members 80Statements of Reasons 83Summary of Stakeholder Views 86Appendices 88List of Abbreviations 88Stakeholder Steering Group Members 88Consumer Information on Project 89Semi-Structured In-DepthInterview Prompts 89References 92Bibliography 945

ForewordWe have now ushered in a new era with the entry intoforce of the Convention on the Rights of Persons withDisabilities – an era in which forced treatment andconfinement are recognized as unacceptable underinternational human rights law.Involuntary treatment and involuntary confinement arecontrary to the Convention, according to UN SpecialRapporteur on Torture, Manfred Nowak, a departurefrom earlier non-binding standards such as thePrinciples for the Protection of Persons with MentalIllness and for the Improvement of Mental Health Care.The International Disability Alliance has addressed thedetails in which these Principles and other outdatedprovisions on the rights of persons with disabilitiesshould be regarded as superseded by the Convention.The Rapporteur details many provisions of theConvention that require the conclusion thatcompulsory treatment and detention are prohibited,as well as their complementarity with the internationallegal framework for the prevention of torture. Herejects the view that detention is permitted basedon disability coupled with other grounds. Laws thatpermit forced psychiatric interventions and involuntarycommitment facilitate practices that may constitutetorture or ill-treatment, potentially incurring stateresponsibility for these serious human rights violations.States must find other ways of responding to peopleexperiencing emotional crisis, in order to complywith the Convention on the Rights of Persons withDisabilities and other obligations under internationallaw. Numerous non-coercive and non-medical modelalternatives exist now, and they must be researched,further developed and fully funded, as the currentcoercive system is de-funded.Over the course of a six-month project, I monitoredhearings in the Mental Hygiene Part of the New YorkState Supreme Court in Brooklyn, New York (trial-levelcourt designated to hear cases under the MentalHygiene Law). The court in New York was a judicialbody, in contrast to Victoria’s Mental Health ReviewBoard which is composed of a psychiatrist, a lawyerand a community representative, but the failure tovindicate the rights of people labelled with mentalillness, or to treat them with equal respect as otherparticipants in the hearing, is comparable, as a result ofthe discriminatory legal framework in both jurisdictions.Procedural safeguards such as review bodies do notsolve the problem of forced treatment, because thelegal framework is inherently flawed and legitimisesdiscrimination against people with psychosocialdisabilities – people experiencing emotional crises orwho have been labelled by others as such.My courtroom observations 5 taught me that proceduralsafeguards and legal standards for “involuntarytreatment” are no panacea. I watched as people hadtheir day in court and turned with a stunned look ontheir faces to their attorneys who had to explain thatthey would have to accept the unwanted medication.I saw family members aggressively pursue “mentalhealth warrants” against youth and elders who hadlittle power to defend themselves. Even with a stateof-the-artlegal standard recognising the right ofinvoluntarily committed individuals to refuse treatmentso long as they had the “capacity to make a rationaldecision” about such treatment, 70% of the time thehospital’s order to override the person’s objectionto medication was granted, and only 15% of thetime denied (the remainder were adjourned or hadother dispositions). I observed that people who hadprofessional knowledge of the drugs’ harmful effects,who had experienced harmful effects, or had strong6

feelings about remaining free of psychotropic drugs,were found to lack the capacity to refuse treatment,when the hospital testified that the person wasparanoid (for distrusting psychiatry or thinking thedrugs were poison) or that the person was sociallywithdrawn, or without any specific grounds at all.This also was my introduction to the discriminatorynature of legal capacity, and illustrates why, as theSpecial Rapporteur on Torture has recommended,recognition of the legal capacity of persons withdisabilities to make decisions is a key component ofany strategy to prevent forced psychiatric interventionsand other forms of torture or ill-treatment.The deprivation of rights presided over by MentalHealth Review Boards is not trivial or harmless –as demonstrated by a large body of literature bysurvivors detailing psychiatric atrocities and theirconsequences, as well as mainstream scientificstudies showing the brain-damaging effects ofelectroshock and neuroleptic drugs. The traumaticeffects of being effectively powerless to defendoneself against destructive invasions of the body andmind doubtless influenced the Special Rapporteuron Torture in his decision to call attention to forcedpsychiatric interventions among other forms of tortureand ill treatment of persons with disabilities.The Convention on the Rights of Persons withDisabilities provides for both self-determination andsupport in decision-making: no one is abandoned in atime of crisis. Active listening on the part of supportersis necessary to understand communication in difficultcircumstances, and forbearance is necessary to setaside the supporter’s wishes and follow those of theperson being supported. This is the opposite of forcedpsychiatry and its enabling legal frameworks, includingreview hearings, as reflected in the “Consumer” sectionof this report. The supportive approach affirms whatmany of us in the movement of users and survivors ofpsychiatry, our friends and supporters have learned byexperience: it is possible to communicate with peoplewho are going through madness, and it is imperativeto respect the person’s choices and values, especiallythose related to the crisis itself (such as whether or notto use psychoactive drugs to bring the crisis to an end).Advance directives and pre-crisis planning can helpby encouraging people to think through their ownvalues and communicate them to relevant others,including supporters and health care providers.Advance directives, if legally binding (that is, if healthcare providers are required to obey them and notmerely to take them into consideration), can helpmake the transition from the current regime ofincapacity and compulsion to supported decisionmakingas required by the Convention.Users and survivors of psychiatry are poised to takea leading role in reshaping both the legal frameworkand the service systems that govern our lives. Thejourney from substandard rights to full equality willdemand adjustments at every level, and its rewardsare immense: not only an end to shameful violationsof human rights, but a liberation of human potential.Tina Minkowitz 6Co-chair of the World Network of Users andSurvivors of Psychiatry.5 The report of these observations and findings can be viewed online at http://psychrights.org/States/NewYork/courtmonitoringreport.htm6 Tina Minkowitz has been a member of the psychiatric survivor movement for thirty years and is currently Co-chair of the World Network of Users and Survivors ofPsychiatry. She is a lawyer and worked extensively on the drafting and negotiations of the Convention on the Rights of Persons with Disabilities. She has writtenabout torture and persons with disabilities in the article “The United Nations Convention on the Rights of Persons with Disabilities and the Right to be Free fromNonconsensual Psychiatric Interventions” and participated in an expert seminar on this topic convened by the UN Office of the High Commissioner for Human Rights.7

1 > Summary“[I felt] disempowered, absolutelydisempowered, hijacked and totallywilfully misrepresented“[On] each occasionbefore the Board I havefelt lost and alone”PF - Consumer”JM - ConsumerAimsThis research marks the first Australian analysis of theprocesses of the review of civil detention and involuntarytreatment from the perspective of those detained.Significantly, the study was initiated by people whohave been the subject of involuntary detention andtreatment and who have appeared before the MentalHealth Review Board (‘the Board’). In response totheir experiences, the Mental Health Legal Centre(‘the Centre’) successfully secured funding from theReichstein Foundation to investigate the efficacy ofthe review process.The reflections of consumers of mental healthservices in this report speak of the humiliation andfeelings of degradation experienced by people whoare involuntarily detained and treated against theirwill under the Mental Health Act (‘the Act’). Theyspeak of the powerlessness of appearing before theBoard. They speak of how difficult it is to argue thatinvoluntary detention is unwarranted, and to assertthe right to make one’s own treatment decisions, inopposition to the views of mental health professionals.Thus, there are a number of aims of this report:• To document the experience of the mentalhealth review process from the perspective ofinvoluntary patients. David Webb, in his articleBridging the Spirituality Gap (2005), presents acompelling argument that we will never totallycomprehend what is needed to adequatelyunderstand mental distress until we ask thepeople who experience it;• To contextualise the Board process, so thatthe hearing could be understood as an eventtaking place in a wider theoretical and practicalrealm. It was considered important to provideinformation about ‘therapeutic jurisprudence’,deinstitutionalisation, and a number of other keydevelopments that help to explain the climate inwhich the Board operates;• To document the experience of the mental healthreview process from the perspective of otherstakeholders, including carers, Board members,community organisations and professional groups;8

“. . .If the person feels they’ve been given anopportunity to be heard and be understoodduring the course of the Board’s hearing, that’sprobably the only opportunity they’ve ever hadduring their entire stay . . .”Legal Representative• To document the role and perceived impactof representation, both legal and lay models,in Board hearings, from the perspective ofthe person whose involuntary status is beingreviewed or appealed, as well as from theperspective of other stakeholders;• To identify and explore special issues relevant tothe mental health review process for those livingin rural Victoria;• To identify possible issues for the improvementof the mental health review process, requiringchange at either a procedural or legislative level.RecommendationsAs this research shows, there are a number ofaspects of the current review system that areinadequate. As well as the practical measures thatcan be taken to reduce the negative impact thata hearing can have on a person, there are alsoprocedural and legislative changes that must bemade. This section of the report first sets out therecommendations which flow from the concernsraised by the consumers interviewed. The report thenconsiders the views of other stakeholders.Inquisitorial v adversarial andrubber stampedBoard members should conduct hearings in a waywhich fulfils their inquisitorial role and lessens theexperience that consumers have of an unevenadversarial battle and a predetermined outcome by:• Acknowledging that the consumer’s contributionand evidence is pivotal to the conduct of thehearing, and allowing enough time for thatevidence to be presented;• Allowing the consumer to tell their story;• Clearly stating that they are independent and thatthe psychiatrist Member does not work at theservice, confirming that they will carefully considerthe information they are given, and make anindependent decision;• Conducting hearings so that this independence isapparent throughout the hearing;9

Lacking Insight• Encouraging consumers to attend accompaniedby a support person or advocate (throughpromotional material available through clinics andinformation provided prior to a hearing);• Acknowledging that the rationale for involuntarydetention, on the day of the hearing, must bejustified by the treating team;• Actively testing and questioning the evidence ofthe treating team;• Ensuring that the evidence of the treating teamis examined, without prejudice, by carefulquestioning – e.g. (to reporting doctor) “Can youexplain why you think this person should be onan involuntary order?”• Ensuring in their interaction with the treatingteam they are professionally detached, not overlyfriendly and familiar;• Identifying conflict situations - e.g. is it appropriatefor the same Board to review an individualconsumer’s detention over and over again?• Ensuring that members of the treating team donot have any discussions or audience with theBoard in the absence of the consumer;• Making sure they ask for the consumer’s viewson key issues and seek expansion whereappropriate, and that they take notes of theconsumer’s evidence;• With the consumer’s permission, making activeinquiries where relevant of other parties suchas relatives or other people supporting theconsumer;• Only asking questions that are relevant to theBoard’s inquiry;• Clearly stating the decision at the end of thehearing - honestly and without disguising it inother closing remarks or social chat;• Clearly informing the consumer of their appealrights and their right to a statement of reasons;• Ensuring statements of reasons include referenceto views and facts contrary to those of the treatingteam and to positive evidence or observations.Access to information• When people are advised of their hearing datethey must also be advised they can access theirfile and assisted to contact the person who canarrange it;• The case manager should be required to tellthe person they can access the file and offer toarrange this;• Access should be available soon after notice ofthe hearing is given – not merely 24 hours beforethe hearing - and should never be on the sameday as the hearing;• Consumers should be offered a realistic periodof time to peruse their file, two hours beingthe minimum;• Consumers should be offered the opportunity toreturn and view the file again if required;• The process for exempting certain entries fromthe consumer and the appeal rights to accessexempted documents should be explained;• If the file or parts of the file are being withheld it isappropriate for the Board to adjourn the matterto give the consumer the opportunity to appointa representative to view these parts and to makesubmissions on his or her behalf;10

Part 1 > Summary• Consumers should be offered assistance,provided with explanations, and offered debriefingwith their preferred member of the treating teamafter they have accessed the file;• The Board should always ask if the consumer hashad a chance to look at the file and adjourn thematter to the next sitting if they have not and theywant to;• The Board should note when a person has notaccessed their file and if the order is extendedencourage the person to exercise this right beforethe next hearing, also informing them of the rightto an advocate to assist;• Reports provided to the Board must also beprovided to the person giving ample time for themto prepare a response; the person should beencouraged to seek advice and support to assistin reading the report and in preparing a response;• The Board must provide ongoing informationand training to mental health clinics and servicesto ensure that these services understand theirobligations in relation to providing access to filesand files are available.Consumers’ level ofunderstanding of thereview process• All consumers should be told by their casemanager how to access independent advice and/or representation from Victoria Legal Aid or theCentre, handed a copy of the booklet “Patients’Rights: A self help guide to the Victorian MentalHealth Act”, and offered a viewing of the Board’sexplanatory DVD when they are advised of theirhearing date;• All consumers should be told how they canget an explanation of the information they havereceived about their hearing, and provided withthe name of the contact person who will provideassistance, an explanation and debriefing;• All consumers must be informed of their rightsunder the Victorian Charter of Rights andResponsibilities, immediately they encountermental health services;• All consumers must be informed of therequirements of the Board for submissions underthe Charter, including the requirements of theBoard’s Practice Direction. Information mustinclude how to get support and assistance inorder to comply with Board directions;• Board members should give their name and anoutline of their role at the start of the hearing, andexplain how the hearing will be conducted;• Board members should summarise the criteriafor involuntary treatment and the treatmentplan considerations at the start of the hearing,and clearly signpost the elements as thehearing progresses;• The Board should clearly and honestly announcethe decision;• If the person is discharged the Board must notattach conditions to this discharge or give awarning that links further behavior with involuntarydetention, but suggest the person consult alawyer if they want advice about implications ofthe discharge;• The Board should tell consumers at the endof hearings that they have a right to requesta Statement of Reasons and that they have11

Lacking Insight• The Board must gauge whether the consumerneeds a break, and offer a short adjournment;• Mental health service workers must offerfollow up support and debriefing to peopleafter their hearings;• The Board and mental health service workersmust endeavour to ensure the Board processleads to improvement in the person’s situation,not mere maintenance;• Board members must receive ongoing training toensure that they do not become desensitized tothe impact of involuntary treatment on people;• Board members must conduct hearingsand ask questions in a way which holds theservice accountable;• Board members must not be unnecessarilyrepetitive, probing or insensitive in the way theyask questions – rather, they should focus mainlyon the issues in dispute and avoid unnecessaryquestioning about symptomology or othersensitive matters;• The performance of Boards varies. Boardmembers should be required to observe eachother and review the performance of peers.Legal representation• Legal and other advocates should act inaccordance with their primary duty - to actin an ethical manner on client instructions;• Free legal representation should be availableto all consumers who wish to have it;• Existing forms of advocacy should be extendedand free legal advocacy made available to allconsumers before, during and after hearings tofacilitate a range of good outcomes and exploreless restrictive options to involuntary treatment;• Legal advocacy services must be resourced toensure that all consumers have access to theprotections of the Charter;• Legal advocacy services must be resourced toensure that Koori consumers and consumersfrom culturally and linguistically diversebackgrounds have access to specialist mentalhealth representatives who are sensitive to theircultural issues;• Advocacy and mental health services shouldadopt practices that actively facilitate people’saccess to representation e.g. case managersphoning legal services when with the consumerat the case management appointment;• Legal representatives should be adequatelytrained in terms of the legal and service systemcontext of hearings and principles of humanrights and therapeutic jurisprudence;• If an order is extended twice the Board shouldrecommend to the consumer that they obtainlegal advice and should confirm that theconsumer has access to information aboutavailable legal services and assistance from thecase manager to arrange representationif required;• The Board should continue to work in acollaborative way with specialist legal services toachieve best outcomes for consumers.14

Part 1 > SummaryIncreased participation bycommunity members• Community members should take a more activerole in the hearing process;• The role of community members should berecognised and optimised through specialeducation and peer support meetings;• Community members have an invaluable roleto play in terms of improving a consumer’sexperience of Board hearings by:• Acknowledging and showing interest in theconsumer’s broader social context;• Encouraging and giving consumers credit fortheir achievements whether strictly relevant to theinvoluntary treatment criteria or not;• Providing advice/suggestions as to ways inwhich a consumer’s situation may be improved,including in terms of non-clinical supports andservices which may be available and exploringwith the treating team least restrictive options;• Educating other Board members as to thebroader context of people’s lives and the supportand service system; and• Encouraging other members to maintain a stronghuman rights focus and apply the Charter;• The Board should develop clear guidelines as tothe Community member role and recruit and traincommunity members accordingly;• Community members should be up to datewith the range of community services availableto assist people living independently in thecommunity including housing employment andeducational services and supports for parenting;• Community members with lived experience ofpsychiatric disability should be actively recruitedas Board members. These members should beinvolved in training the membership as a whole.In consultation with relevant consumer andadvocacy stakeholders, a minimum quota ofconsumer members with lived experience shouldbe established.Second opinions• A system to facilitate access to independentsecond opinions for use at Board hearings shouldbe developed;• Unlike psychiatric assessments, reports andletters to patients and referral letters preparedby doctors and specialists for general medicalmatters form part of the service and arecovered by Medicare. Psychiatrists need to bechallenged to provide their reports as part of theirconsultation service free of charge;• It is the practice of some public mental healthservices to charge for psychiatric reports.Psychiatrists employed in the public sector mustprovide a service that includes the provision ofreports without additional payment;• It should be mandatory that the Board requires anindependent second opinion when the CommunityTreatment Order has been extended twice;• The possibility of the Royal Australian and NewZealand College of Psychiatrists coordinatinga scheme whereby members must provide acertain number of such opinions for involuntarypatients should be investigated;• Provisions should be considered such as thosecontained in Section 190 of the Queensland MentalHealth Act (2000). That Act requires that the Tribunal15

Lacking Insightmust, if a person has been subject to involuntarystatus for more than 6 months, consider “whetheran examination and report should be obtained froma psychiatrist other than the psychiatrist responsiblefor the patient’s treatment”.Timely Review• The 8 week review time period should now beshortened to within 48 hours, ensuring that allconsumers detained and involuntarily treated arereviewed by an independent body;• The 12 month review time period should bereduced to 6 months consistent with the reviewtimes in other jurisdictions;• A review, initiated by the consumer, should belisted within 2 weeks and there should continueto be no limit to the number of times thatconsumers request such a review.Treatment Plans• Consumers must be actively involved with thepreparation of treatment plans, and have accessto an advocate or support person if requested;• Consumers must be properly advised of the risksattached to proposed treatment;• Information on treatment which highlights thelikely benefits and risks should be available for allconsumers prior to their signing a treatment plan.The information provided by the PsychotropicDrug Advisory Service would be a good resource;• Consumers should be able to oppose a treatmentplan and this should be noted on the plan;• An advance directive made prior to the personbeing assessed as mentally unwell, mustbe respected;• Consumers’ views about the use or non use ofECT must be respected and incorporated in thetreatment plan;• Relevant contents of an advance directive mustbe incorporated into the treatment plan;• Relevant sections of the individual program planshould be combined with the treatment plan,respecting the consumer’s direction as to whetherto exempt some sections to respect their privacy;• Treatment plans must include the least restrictivemeans of treatment which is being workedtowards and include timelines and nominate aperson responsible for each action;• Clinicians who prepared the treatment plan mustbe available at time of the hearing;• A combined treatment plan is essential to aholistic approach to treatment and provides theBoard with information essential for exploring lessrestrictive alternatives.Statement of reasons• Consumers must be informed of their right torequest a Statement of Reasons at the closure ofeach hearing;• Statements of reasons must be provided in eachmatter where the order has been extended morethan once;• Review hearings should be taped, and the tapesmade available to the consumer upon request.16

Part 1 > SummaryTraining and reviewof Board members• Appointment of Board members should bedependent upon specific criteria which includes:proven knowledge and expertise of mental healthservices; communication skills of the highestorder, particularly the ability to communicateopenly with people with mental illness and treatthem with dignity and respect; a commitmentto ongoing professional development to ensureknowledge of current services and less restrictiveoptions to involuntary treatment;• Interviews for Board members should beconducted by a panel of people with at least oneconsumer member;• Participation in regular training must be a mandatorycondition of ongoing Board membership;• Member training should include:• Presentations by consumers who haveexperienced Board hearings to generate greaterawareness of the lived experience of mentalillness or alleged mental illness;• Communications skills including body language,courtesy, empathy, listening; and self reflectivepractices;• Up to date information on mental health servicesand community supports;• Education on least restrictive alternatives toinvoluntary treatment and how this can be achieved;• Presentations by specialist mental health advocates;• Preparation of statements of reasons;• Moot hearings;• Current information on relevant human rightsjurisprudence under the Charter;• Current information on practices at other mentalhealth review tribunals; and• A requirement that Board members considerthe consumer and stakeholder views andrecommendations of this report.• An optimum system for review of Board members’performance should be implemented. A peerreview model should be seriously considered.Training of mental healthworkers and advocates• Mental health practitioners should be educated to:−− develop collaborative therapeutic relationshipsand to allow the consumer to take the lead inthe review hearing;−− develop plans, timelines and identify supports- to assist the consumer to work towards theleast restrictive alternative, independence andautonomy in managing mental health;−− prepare reports that are free from derogatorystatements and value judgments, withsourced material dated and available tobe scrutinised;−− understand when it is appropriate to applyto the Board to exempt documents; andthe seriousness of withholding evidence ormisleading the Board.• Reports to the Board must be factual andallegations of risk must be substantiated;• Authors of reports to the Board must be availableto attend the hearing;• Mental health workers must attend ongoingsessions on the Board and its processes;17

Lacking Insight• Key participants in the hearing process - treatingteams and advocates/legal representatives -should be required to read the recommendationsand consumer and stakeholder view sections ofthis report.Further researchStakeholders identified production of Statements ofReasons as an area of concern. Consumers did notprovide significant feedback on this issue – probablylargely because most did not procure a Statement ofReasons. Further research should be conducted toascertain the value of Statements of Reasons in theirpresent form, by obtaining the views of consumerswho have received Statements of Reasons, byanalysing an appropriate sample of Statements, andby investigating in greater depth the experience ofadvocates who have requested a significant numberof statements.A number of consumers, alleged to be noncompliant,told researchers that they objected notto treatment, but to the way it is delivered, in astigmatising and punitive way. Consumers want tohave access to alternative therapies and consumerrunservices. Further research should be conductedinto these models of service delivery in the context ofchoice of treatment options.Advance directives, documents that consumerscan create while they are well (that is they possess‘capacity’ in legal terms), which stipulate all that theywould like done for them in the event they becomeunwell later on, and which are in a fledgling state ofdevelopment in Victoria, will challenge the Board torespect a person’s wishes and interests. Upcomingresearch will address the role the Board has in givingeffect to Advance Directives.Is the existing Victorian Board structure the bestmodel of review? Further national research is atpresent being conducted – an Australian ResearchCouncil funded comparative study of Mental HealthTribunals in NSW, Victoria and ACT. However,research needs to be conducted to assess theefficiencies of the present Victorian review model, tocompare the costs and benefits of single memberboards and other review models.Consumers identified the need for further firstperson experience research as a follow up to thisproject in 3 years time, to review the progressof recommendations and evaluate the Board inthe context of the Mental Health Act review, theimplementation of the Department of HumanServices (“DHS”) plan Because mental health mattersand the application of the Charter.As discussed later in the report, further researchefforts would be worthwhile to:Speak with Koori consumers with experience of theBoard to obtain their views on the review processand explore ways to ensure they have meaningfulparticipation; andSpeak with more consumers from culturally andlinguistically diverse backgrounds to ascertain theneeds o f the majority who were unable to participatein this research.MethodologyWho is a ‘consumer’?An explanation of terminologyin the report.The word ‘consumer’ is used throughout the report.This is the terminology chosen by the AdvisoryGroup. For explanation see Footnote 1, Page 3.18

Part 1 > SummaryMethodology and research toolsThe project is a qualitative study using an actionresearch model where data collection and evaluationproceed simultaneously. This model enables broadscoping of the major issues as they arise andcaptures a range of experiences in depth, allowingparticipants to ‘tell their story’ from their individualviewpoint. It provides the opportunity to re-evaluateand make adjustments in the focus of the projectas the data is evaluated in a series of feedbackloops (Punch 1998). Interview and discussiongroup prompts were revised and modified in lightof ongoing data analysis as a part of the project’sinteractive process.Project guidanceA Steering Group of key stakeholders wasestablished (see appendix); it included an AdvisoryGroup of four people with experience of involuntarystatus, with experience of mental illness or allegedmental illness and with the capacity to representthose who have been involuntary patients. This groupof four people met separately with the researchersand assisted with networking among consumers andwith the development of the interview schedule.EthicsEthics approval for the research project wasgranted by the Human Research Ethics Committeefrom Department of Human Services (‘DHS’). Allparticipants have been de-identified during thetranscription process and tapes destroyed.Sampling DesignThe project used a snowball technique to identifyinterested participants. This involved makingcontact with relevant people or bodies involved withconsumers who had appeared before the Boardas involuntary patients. Consumers interested inparticipating were targeted by promotional material,widely distributed through consumer networks andarea mental health services. Participants for discussiongroups were recruited from a variety of sources toavoid situations where they may have discussed theissues together previously. Care was taken whereverpossible, to prompt involvement of people who werenot active mental health consumers and those whomay not have participated actively in a hearing.A purposeful sampling framework was utilised inselecting participants through the application ofminimum sample criteria limits. This sampling designwas broadly indicative of various factors includingcharacteristics of the caseload of the Board. Withinthe budgetary and logistical constraints of the projectno significant source of variance was missed. Theproject aimed to capture a cross section of diversityof people who had an involuntary patient experience,and to include the following characteristics:• Site of treatment−− Inpatient treatment−− Community Treatment Orders• Types of psychiatric diagnosis ~ consumers withexperience of:−− Mood disorders−− Psychotic disorders−− Other diagnoses• Type of treatment−− Medication types and methods−− Electro convulsive therapy (ECT)−− Seclusion and restraint−− Additional attributes−− Rural and Metropolitan (Variety of suburbs)−−−−Security PatientsGender19

Lacking Insight−−−−−−−−Age (to include youth 18-24 years, 25-60and 60+)CultureEnglish as a Second Language (ESL)Other minority groups identified throughproject analysisDiscussion groupsThe project aimed to conduct discussion groupsin various regions. However, it was found thatmost consumers were uncomfortable discussingtheir experiences in a group setting and preferredone-to-one interviews.The project thus completed a purposefulsample group including:• 30 observations of Board hearings• 25 in-depth interviews with consumers• 10 in-depth interviews with carers and consumerconsultants• 10 in-depth interviews with stakeholders anddecision makers• A series of discussion groups in metropolitan andrural Victoria with consumers and carers attendedby 15-20 consumers, 5-10 carers (none of whomwere interviewed in-depth)• 3 discussion groups with Board membersattended by 15-20 members• In-depth interviews and discussion groups withadvocates (both legal and lay) attended by5-10 advocatesData sourcesThe study utilised a variety of data sources includinga literature review, discussion groups and in-depthinterviews with individuals with experience asinvoluntary patients appearing before the Boardand other stakeholders in the Board hearingprocess, observations of Board hearings and aexamination of Board Statements of Reasons. Thisdata triangulation was designed to avoid or limitunintended bias in the study and provide a broaderunderstanding of findings.InterviewsSemi-structured in-depth interviews wereconducted with 25 people who have experienceof involuntary treatment and who had appearedbefore the Board. Promotional material waswidely distributed through consumer networksand through clinics. People contacted theproject workers if they were interested in beinginterviewed. Many participants wished to beinvolved who had heard of the project from otherconsumers (snowballing research method). Aninterview schedule was devised by the projectresearch team and interviews conducted.Key stakeholders from the mental health systemand other parties with a significant stake inthe Board’s process, such as carers and legalrepresentatives, were identified and interviewed bythe project workers. Some Board members andcarers who had also heard of the project contactedthe research team requesting involvement.Interviews were conducted by research workerswho are highly skilled, sensitive and experiencedwith the methodology and able to identify andappropriately refer participants to an appropriatesource for legal advice or debriefing.20

Part 1 > SummaryObservations of hearingsof the BoardObservations were undertaken by the researchersto give context to current procedure and practiceof hearings, to inform the project workers’understanding of the review process, andas background for facilitating the interviews.Observations had a dual purpose, to set thescene for the project workers, to assist them toidentify hearing rituals and other formalities and toassess the accessibility of the environment.Analysis of Statements of ReasonsA preliminary analysis of Statements of Reasons(the documents which set out the reasons for theBoard’s decisions) highlighted inadequacies andinconsistencies in the quality of these documents andconfirmed the need for more rigorous research andanalysis of the documents of Board decisions. Thisaspect of the research was deemed to be a standaloneproject and requires further funding. Thuspreliminary findings are not included in this report.Data AnalysisThe project researchers developed a subtle codingmethodology utilising qualitative linking, shaping andsearching. Consumer and stakeholder interviewswere then analysed by identifying prevalent themesand issues and extracting representative comments.International and National Research– Literature ReviewAn extensive literature review of existing research wasundertaken by the researchers. There has been littleresearch into the operation of mental health tribunalsin Australia. Research completed internationallyin recent years, which looked at the process andinteractions occurring in mental health tribunals, hasconfirmed that a health rather than a legal paradigmdominates the hearing process.21

2 > The ContextMental Health Review Board:Role and Human Rights ContextThe role of the Mental HealthReview Board of VictoriaThe Board was established as a statutory body toprotect the human rights of involuntary patients.The Board’s main role as an independent tribunalis to review the appropriateness of orders madeunder the Act to enforce involuntary treatment bothin hospitals for inpatients and in the communitysetting for people on community treatment orders(‘CTOs’). Following amendments to the Act in 2004they also must review people’s treatment plans andorder their revision by the treating team in certaincircumstances. These functions of the Board are setout in Part IV of the Act.The way the Board is to conduct hearings isset out in s24:Procedure of the BoardThe Board –(a) must, in hearing any matter, act according toequity and good conscience without regard totechnicalities or legal forms; and(b) is bound by the rules of natural justice; and(c) is not required to conduct any proceedings in aformal manner.Part IV also makes provision for consumers toappear, be represented, have access to their clinicalfile and the report prepared for the Board at least 24hours before the hearing, and request a Statementof Reasons for the Board’s decision. The Board hassome functions in addition to determining whetherinvoluntary status is appropriate, such as appealsagainst transfer or refusal of leave to Security Patients;such proceedings are not the subject of this research.The majority of Board hearings (81.7%) areconducted by a three-member tribunal made up of alawyer, a psychiatrist and a community representative(MHRB, 2007: 24).In 2006-07, the Board listed 18,719 cases, ofwhich 7,410 were heard and determined and whichincluded 7203 cases which were adjourned at leastonce before being heard. 6,210 of these cases(83.8%) were reviews of involuntary status, while1,081 (14.6%) were appeals against some or allaspects of involuntary status ((MHRB, 2007: 42-3). In2006-2007 the rate of discharge by the Board frominvoluntary status was 3.4% ((MHRB, 2007: 46).The human rights framework inwhich the Board functionsA range of international human rights instrumentsset out the rights of people with disabilities, the mostrecent being the United Nations Convention on theRights of Persons with Disabilities (‘Convention’)which was adopted by the General Assembly in2006 and ratified by Australia in July 2008. TheU.N. Principles for the protection of persons withmental illness and the improvement of mentalhealth care (1991), generally referred to as the ‘MIPrinciples’, deal specifically with the rights of peoplewith psychiatric disability, but have been criticized asderogating human rights and instituting an inferiorand discriminatory standard. Another U.N. standardrelevant to people with psychiatric disabilities is TheStandard Rules on the Equalization of Opportunitiesfor Persons with Disabilities (1993), generally referredto as just the ‘Standard Rules’.The MI Principles have been the prevailing humanrights standard for mental health services throughoutAustralia, but these now must be read in light of themore recent developments including the Convention.This was highlighted in the March 2008 issue of the22

U.N. Enable Newsletter of the U.N.’s Secretariat forthe Convention, where it stated:It is important to note that some provisions ofthe Principles for the Protection of Personswith Mental Illness and the Improvement ofMental Health Care have been criticized andthe Convention on the Rights of Persons withDisabilities now supersedes these standards tothe extent that there is any conflict between thetwo instruments.This point was further made in a recent report tothe Secretary-General of the U.N. from the SpecialRapporteur of the Human Rights Council on tortureand other cruel, inhuman or degrading treatmentor punishment 7 :Thus, in the case of earlier non-bindingstandards, such as the 1991 Principles for theProtection of Persons with Mental Illness andfor the Improvement of Mental Health Care(resolution 46/119, annex), known as the MIPrinciples, the Special Rapporteur notes thatthe acceptance of involuntary treatment andinvoluntary confinement runs counter to theprovisions of the Convention on the Rights ofPersons with Disabilities.These international human rights instruments, mostnotably the legally binding Convention, can beused alongside Victoria’s Charter of Human Rightsand Responsibilities Act of 2006 (‘the Charter’) tointerpret legislation like the Mental Health Act toensure that it is compatible with human rights.The Charter came into force on 1 January 2007.Obligations of public authorities to consider andact consistently in regard to human rights, and thepowers of the courts to interpret and apply legislationin accordance with the Charter, came into force on1 January 2008. The Board is obliged as a tribunalto apply and interpret the Act consistently with theCharter. As “public authorities” hospitals, clinics andmental health professionals providing treatment underthe Act, including involuntary treatment, must ensureall acts and decisions are consistent with the Charter.Some of the human rights recognised by the Charterrelevant to provision of mental health treatment,voluntary and involuntary, are:• right to recognition and equality before the law (s8);• protection from torture and cruel, inhuman anddegrading treatment (which is specifically defined toinclude medical treatment without consent) (s10);• freedom of movement (s12);• right to privacy and reputation of person (s13);• freedom of thought, conscience, religion andbelief (s14);• freedom of expression (s15);• right to liberty and security (s21); and• humane treatment in detention (s22).There are also rights that are relevant to the conductof the Board:• Right to a fair hearing (s24) - there are threesignificant requirements of s24:−− the court must be competent, independentand impartial; and−− the hearing must be fair; and−− the principles of natural justice must beapplied. This may include timely and openaccess to relevant documents and the right toquestion relevant professionals.7 At the time of writing, this report was scheduled to be formally submitted to the UN General Assembly in October 2008. It is available http://www2.ohchr.org/english/issues/disability/torture.htm (last accessed Oct 13, 2008)23

Lacking InsightThe Charter provides that these rights can be subjectto reasonable limits where this can be demonstrablyjustified in a free and democratic society based onhuman dignity, equality and freedom, and takinginto account a number of factors including leastrestrictive means available to achieve the purposeof the limitation (s 7).It is as yet unclear exactly how the Charter willimpact on involuntary treatment, and the processesof the Board. In the event that unlawful breachesoccur, the Act and the Board’s processes mayrequire amendment to bring them into line with theCharter. The Convention and the MI Principles canbe used to interpret the Charter, so it, as well asrelevant international jurisprudence, may influence thelegitimacy of involuntary treatment, the Board, and itsfunctions, powers and processes.The Broader Context of theBoard’s processesTo gain a greater appreciation of the way the Boardpresently functions, it is first necessary to providesome context for its operation. This part of the reportfocuses on two key aspects of contemporary serviceprovision, namely deinstitutionalisation and CTOs. Itthen canvases two issues of significance to the legalframework in which the Board operates – timelinessof reviews and the advent of treatment plans. Finally,it looks into therapeutic jurisprudence (‘TJ’) and itspractical implications for processes such as Boardhearings. These therapeutic jurisprudence principlessignificantly informed the analysis of consumer andstakeholder interviews which follows in Parts 3 and 4.It is also invaluable to consider the views of ProfessorMichael Perlin on the Board’s context. Perlin, aninternationally-recognised expert on mental disabilitylaw, has developed two concepts to describe theentrenched prejudice and discriminatory practiceswhich have developed in the relationship betweensociety and the legal system, on the one hand, andmental illness and consumers, on the other. Hedevelops the following terms in order to assist us tounderstand possible attitudes towards mental illness:• ‘sanism’: irrational prejudice based upon ‘stereotype,myth, superstition, and deindividualisation’, whichis sustained and perpetuated ‘by our use of alleged‘ordinary common sense’;• ‘pretextuality’: the process whereby courts andlegal decision-makers [e.g. such as mental healthtribunals] accept testimonial dishonesty andengage in similar dishonest decision-making, suchas the tendency to shape testimony to achievedesired ends [i.e. massaging clinical evidence sothat an involuntary treatment order appears to bejustifiable]. (Perlin, 2003 xxxiv, xxxvi).In considering ‘how we construct ‘craziness’ hemaintains that a number of problematic practices inthe relationships between law and mental disability‘all reflect in both explicit and implicit ways, thepernicious effects of sanism and pretextuality on thefull range of mental disability law issues. I believe itis impossible to truly understand the jurisprudence inany of these areas without first understanding sanismand pretextuality’. ( Perlin, 2003 :3,4).Kate Diesfeld describes Perlin’s use of the concept‘sanism’ as referring to an irrational prejudicewhich becomes part of societal attitudes towardspeople with mental illnesses which in turn infectsjurisprudence and lawyering. (Diesfeld, 2003:3)It is important that these overarching influences arenoted when considering the role of the Board andwhether it can act as competent, independent andimpartial and fair.24

Part 2 > The ContextDeinstitutionalisationDeinstitutionalisation:A backgroundThe goals of deinstitutionalisation – moving treatmentfrom institutions to treatment in the community - areindeed admirable. Stand-alone institutions wereknown to be houses of horror, rife with abuse andneglect; they must never be re-created.Although it is sometimes thought that the policy ofdeinstitutionalisation was a response to importantevents such as adoption of the MI Principles, thereduction in the number of beds in psychiatrichospitals has been occurring in Victoria since the1960s. If anything, the events of the mid-1980sto the mid-1990s – the period of the most rapiddeinstitutionalisation - were the continuation of thelong-standing practice of ‘closing the front doorand opening the back door’ of psychiatric hospitals.This period of roughly ten years, as well as being acontinuation of the process of deinstitutionalisation,was also an attempt to respond to its worstconsequences (Doessel, 2005: 990; Dawson, 2005:31-32; Whiteford, 2006: 396).These consequences – which includedhomelessness, sub-standard accommodation andthe inability to access treatment – and the adversepublicity they received, culminated in the 1992National Mental Health Plan adopted by all Australiangovernments as part of the National Mental HealthPolicy. This first plan covered the period from 1992-1997. Subsequent second and third plans havecovered the period of the past decade. A key partof the Strategy that arose out of the National MentalHealth Plan was the imperative that the closure ofstand-alone psychiatric hospitals be balanced by thetransfer of services to general hospital psychiatricwards – a process known as ‘mainstreaming’ - andto area-based mental health services. Area-basedmental health services were devised to provide for awide-variety of needs, including the provision of afterhoursservices and care in the community setting(Whiteford, 2005: 396; Gerrand, 2005: 255).Criticism of deinstitutionalisation“A nationwide review of the experiences of thosewho use and provide mental health serviceshas documented that current community-basedsystems fail to provide adequate services.Specifically, these services are characterised by:restricted access; variable quality; poor continuity;lack of support for recovery from illness; and,protection against human rights abuses. Inthe view of consumers, carers and healthprofessionals who provide services, this does notrepresent a failure of policy. Instead, it is a failureof implementation through: poor administration;lack of accountability; lack of ongoing governmentcommitment to genuine reform; and, failure tosupport the degree of community developmentrequired to achieve high quality mental healthcare outside institutional settings.” (Out ofHospital, Out of Mind, 2003: 1)It is fair to say that the goals of deinstitutionalisationhave not been widely achieved beyond the closure ofstand-alone psychiatric hospitals. A vital feature of adeinstitutionalised system is that services that wouldtypically have been provided by stand-alone hospitalsare instead provided in the community by areamental health services and ‘mainstreamed’ hospitalfacilities. Three separate reports on mental healthservice provision spanning the period from 1993-2005 have emphasised that adequate communitybasedservices have not materialized.25

Lacking InsightThree cries for helpIn 1993, the Report of the National Inquiry into theHuman Rights of People with a Mental Illness (‘BurdekinReport’) found that the way that some people witha mental health issue were compelled to exist inthe community was a violation of their rights. TheBurdekin report focused on the ‘rhetoric’ of communitytreatment, emphasising the gulf that existed betweenaspiration and actual living conditions. These conditionswere described as ‘cramped, grotty, and undesirable.’The Burdekin Report stated quite clearly that thedeveloped nation of Australia was in violation of the MIPrinciples (Savy, 2005: 207).Ten years after ‘Burdekin’ (and two five-yearAustralian Governments National Mental HealthStrategies later), little had changed. The 2003 reportby the Mental Health Council of Australia, Out ofHospital, Out of Mind, cites the key issues of the‘grossly unmet need for basic mental health services’,the ‘grossly inadequate growth in expenditure onbasic services’ and ‘ongoing human rights abusesand neglect’ (3-4). The Report highlighted the gapsthat existed in service provision, the lack of alternativetreatments offered by services and the paltry sum ofmoney that was spent on mental health at a nationaland state level.In 2005 the Mental Health Council of Australia, Not forService report continued the concerns raised in earlierreports, but also declared that the delivery of mentalhealth services in the community had reached the stateof serious and systemic neglect (Savy, 2005: 208).These concerns were reiterated in 2006 by a SenateSelect Committee on mental health. It reportedsignificant problems regarding access to services,service responsiveness, consumer and careradvocacy, monitoring and accountability, and mentalhealth research. In response the Council of AustralianGovernments (COAG) developed a National ActionPlan on Mental Health (2006) which aims to improvemental health through promotion prevention andearly intervention, improved access to mentalhealth services, access to accommodation supportand participation in the community through thedevelopment of social, recreational and employmentopportunities.The more things change . . .So what has changed since the first Australiangovernment’s National Mental Health Strategy tookeffect? Some have argued that, fundamentally,nothing has altered in the provision of services,and that the transition in Victoria from stand-alonepsychiatric hospital treatment to community-basedtreatment has not resulted in deinstitutionalisationat all. The present system has been accused ofmerely altering the face of mental health services,leaving the mind-set unchanged and the type of careprovided by psychiatric units of general hospitalsstill institutional in nature. Chesters (2005) suggeststhat there is an inability to conceive of the provisionof mental health services beyond the institutionalsetting. This claim is supported by Richmond (2005)who adds that the treatment offered by these new‘mini institutions’ leaves people no freer to participatein the community. Richmond states emphatically thatpsychotropic medication – so heavily relied uponbecause of a lack of funding for alternative therapies– is itself a prison:“Yet the new psychiatric units that are part ofgeneral hospitals may well operate as miniinstitutions.Here as elsewhere psychiatric treatmentis organised around psychotropic drugs which arethemselves ‘imprisoning substances’, accuratelydescribed as chemical restraints.” (p.223)26

Part 2 > The ContextThe next section of this report will look at a mechanismthat has become central to the deinstitutionalisedsystem of treatment provision. Some have arguedthat this system could not function without it (Dawson,2005: 32). If treatment has transferred to the communitysetting, so has the means to involuntarily compel it. Themeans to compel treatment is the Involuntary TreatmentOrder (ITO), and, especially in the case of Victoria, theCommunity Treatment Order, or CTO.Community Treatment Orders“I feel like I’m on trialevery twelve monthsand I already know theverdict: I’m guilty.”PM - ConsumerWhat does it feel like to be on a CTO, to be livingin the community and subjected to involuntarytreatment? In the above quote PM expressedthe view that a CTO felt like a sentence, and thatappearing before the Board he was on trial. He feltthat it was up to him to prove that he was not guilty,however, that he had little chance of success. Theemphasis in a Board hearing on the potential riskof harm and the implication that the person maytherefore be dangerous reinforces the perception thatthe process is like being on trial.Although not the focus of the research, consumerswere keen to speak to the Board about theirexperience of being on a CTO. A common view wasthat the hearing would provide the consumer withthe opportunity to speak of the CTO experience: toquestion the treating team, to offer solutions andalternatives to involuntary treatment and to challengethe regime of intervention. Consumers commonlybelieved that the Board had the power to directthe treating team and vary their treatment. Others,however, choose not to attend or had little faith intheir ability to assert their views:Some of us are resigned. We know that it doesn’tmatter what we do or what we say our authority iszilch in this environment. It is the absolute epitomeof powerlessness in a mental health system thatclaims that, amongst other things, it’s there ‘toempower’ patients because when ‘they’ takeresponsibility for their lives they might get better ...Message board,Our consumer place, Ourcommunity (2008)As discussed below, the use of CTOs in Victoria isparticularly high. They are also of great relevanceto an analysis of the Board as, in 2006/2007 66%of Board hearings were in relation to CTOs (MHRB,2006/2007: 44)Managing ‘risk’The fear of persons with mental illness creates ahidden bias against them that prevents equal justice,it is a form of discrimination (Perlin, 2000).Board hearings often focused on ‘risk’, also noting thatif risk had been established in the past, it was acceptedas a current concern. The researchers noted that theBoard rarely explored the evidence surrounding aparticular event or incident. Because of the turnoverof staff the current treating team are seldom able toassist the Board with knowledge of the circumstancessurrounding events, so allegations of risk remain withoutbeing challenged [Researcher Observations].Far from providing a means of destigmatisingmental illness, as was the purported reason for27

Lacking Insightdeinstitutionalisation, the major focus of communitytreatment has for some time still been that of minimisingthe perceived ‘risk’. The risk criterion for involuntarytreatment under the Act expressly allows interventionwhere the risk is one of deterioration in the person’shealth – this application of risk is more frequently appliedthan actual risk to self or others. When this subjective andlow-level test of risk forms the basis of decision-makingabout who will benefit from being on a CTO, treatment asan involuntary patient is often unwarranted. Many peopleplaced on CTOs would voluntarily seek assistance forthe treatment of their mental health issue – indeed manypeople on CTOs do not have a history of treatmentrefusal. An approach that places far too much emphasison risk means that many people unnecessarily have theirliberty curtailed (Carney, 2003).Why has risk become a strong determinate of treatmentdecision-making? A number of factors have beencrucial. The aforementioned scarcity of resourcesis certainly a factor in the over-reliance on CTOs bytreating teams, who find themselves unable to provideservices to those who seek them voluntarily. The mediaalso plays its part with sensational headlines and illinformedstories about the danger that people withmental health issues pose to the general public, greatlyinflating a sense of danger. (Dawson, 2005: 43; Brophy,2006: 472; Carney, 2003). The consequences of thefocus on risk are that CTOs are not only directed tothose who will benefit most from such schemes, theyare also disproportionately ordered against personswho are perceived to be the greatest threat, namelyyoung men and people from ethnic or indigenousbackgrounds (Brophy, 2003: 84-5). This is social controlnot treatment. Treatment provided on the basis of biasand prejudice is wholly counter-therapeutic.The law in Victoria regarding CTOs can be found insections 14 and 14A-14D of the Act. The essentialelements of this part of the Act are that the criteriaof section 8 (1) of the Act apply to the person andappropriate treatment can be received by the personin the community. Section 8 (1) of the Act sets out thecriteria for involuntary treatment of a person, whichinclude the person appearing to be mentally ill andrequiring immediate treatment, there being a certainlevel of risk to themselves or others, the person eitherrefusing or being unable to consent to the necessarytreatment and there being no less restrictive meansof getting adequate treatment. Other features of thelegislation about CTOs include:A CTO, like involuntary status, must be reviewed bythe Board within the first eight weeks and then every12 months;• a CTO must not exceed 12 months;• a CTO may specify where a person has to live;• an authorised psychiatrist can extend a CTO foran unlimited number of times;• a CTO and the attached treatment plan must bereviewed by the treating team at regular intervals;• a CTO may be varied by an authorisedpsychiatrist at any time; and• a CTO may be revoked by an authorisedpsychiatrist at any time, and a person returned toan approved mental health service if the order isnot working or the person is not complying withtreatment and at significant risk of deterioration.CTOs – How and whythey came aboutInitially CTOs were not part of the Act but were addedto it in 1988. Indeed the initial role of CTOs was as anextension of the leave system, a quasi parole function,that had become common practice in Victoria. Theleave system offered a way back into the communityfor the consumer, as well as a mechanism to have the28

Part 2 > The Contextperson readmitted to hospital if necessary (Brophy,2006: 470). Since the mid 1990s, however, CTOs havecome to play a major role in the treatment of psychiatricpatients in Victoria. Two factors in particular have led tothis eventuality: the process of deinstitutionalisation andthe focus on risk management.With the closure of all stand-alone psychiatrichospitals in Victoria, CTOs have been used as a wayof taking the pressure off the remaining psychiatricunits that are now attached to general hospitals.One of the functions of CTOs, then, is to ensurethat hospital admissions are kept to a minimum,and to enable treatment to be provided in thecommunity setting (Brophy, 2006: 470). Thus CTOshave become a means of providing monitoring ofpsychiatric patients, to ensure that they receivepsychiatric treatment (i.e. medication) in an era whenresources allocated to the mental health sector are adistant second to that allocated to general health.Overuse of CTOs in Victoria“For better or for worse, whether by design orotherwise, one of the mechanisms Victoria hasdeveloped to underpin this community focus isa far greater reliance on the use of involuntarytreatment orders (ITOs), particularly communitytreatment orders (CTOs), than occurs in otherjurisdictions.” (Lesser, 2007: 7)It is not only the far greater reliance on CTOs inVictoria that is cause for concern, it is also theincrease in that reliance over time. Figures obtainedin September 2008 from the Mental Health andDrugs Division of DHS show that 1951 people wereon a CTO or RCTO at some time (possibly more thanonce) during 1995-1996. Ten years later the figurehad more than doubled to 5,099, and the figure in2007-2008 was 5,473.Does this greater reliance in Victoria on CTOs meanthat this jurisdiction overuses this treatment option?A number of factors suggest CTO overuse is asystemic problem.First, there is the controversial practice of placingpeople on a CTO after their first hospital admission.Clearly, people who have had only one admission tohospital do not have a history of treatment refusal.People are therefore made involuntary patients beforethey can prove that they are quite capable of adheringto a treatment regime that they may conceivably agreewith. Dawson suggests that 15 -25 % of people onCTOs fall into this category (2005: 45).Second, as has been mentioned, many CTOs aredischarged just before the scheduled review hearing.It has been suggested that the hearing date providesan important clinical review trigger for treatmentteams. In 2006/07 3,693 cases (19.7% overall)reviews were triggered in this way ((MHRB, 2007:42). From this it can be argued that many people onCTOs are being involuntarily treated unnecessarilyand for too long. To have the review date as a triggersuggests complacent, insensitive practice. Thetrigger ought to be the health of the patient, not adate set by outdated legislation.Finally, this situation appears to be exacerbatedby the infrequency of legal review (Carney, 2003 inBrophy, 2006: 471; Dawson, 2005: 29). The factthat a significant number of people are released fromCTOs just prior to hearings, suggests conservativetreatment practices. Such practices could bechallenged further by the mandatory review occurringmuch sooner than the present twelve months.29

Lacking InsightThe Negative consequencesof reliance upon CTOs“How does it makeme feel? Like I’m virtuallya bonded slave.”PM - ConsumerA number of consequences result from the (over)reliance on CTOs by treatment teams.First, reliance upon CTOs has a tendency to produceless successful outcomes for the consumer. It hasbeen known for some time that treatment is more likelyto reap lasting benefits when the person enters into itvoluntarily (Winick, 1994). This line of thinking conformswith the Charter, the Convention, the MI Principles andthe Act. The MI Principles expressly state:Where a person needs treatment in a mentalhealth facility, every effort shall be made to avoidinvoluntary admission. (Principle 15)Second, there is the potential problem of ‘deskilling’among mental health professionals. Deskilling comesabout when other treatment options, which arefavoured by consumers, are ignored because it issimply too easy to compel treatment, in the formof medication, under the present legislative regime(Freckelton and Lesser in Brophy, 2006: 472).Eventually the option of medication becomes a faitaccompli because other options are beyond thecapability of treatment teams.Finally, involuntary treatment tends to exacerbatecommunity prejudice about people with a mental healthissue: namely that people with, or who have had, amental health issue cannot be trusted to look after theirown health, and as such are a threat to the safety of thegeneral public unless compelled into treatment.Reform of CTO legislationThe MI Principles state in Principle 9: Treatment:1. Every patient shall have the right to be treated inthe least restrictive environment and with the leastrestrictive or intrusive treatment appropriate to thepatient’s health needs and the need to protect thephysical safety of others.This principle is mirrored in the Charter, theConvention and the Act.Are CTOs the least restrictive or intrusive treatmentthat is appropriate to all people presently on suchorders? In terms of current legislation, this may wellbe the case, but this only reveals the inadequacyof current legislation. CTOs are overused. They areused in such a generalized way as to include peoplewho would voluntarily seek treatment. Consumersinformed the researchers that less restrictive optionsare not adequately explored by the Board and thisview is supported by researcher observations. CTOsare often used to enforce depot injections (deep tissueinjections as opposed to taking medication orally). Assuch they are not the least restrictive, nor are they theleast intrusive means of providing treatment.In light of what consumers tell us about theirexperience, this report makes recommendations asto how the Board must play a greater role in ensuringthat CTOs are used only when they are the leastrestrictive treatment and the one most consistentwith human rights obligations.Timely Review“We render insignificant the freedoms in issueand pay lip service to the notion that whenever30

Part 2 > The Contextpossible people with a mental illness shouldenjoy the same rights as other members ofthe community, if most people who becomeinvoluntary patients are not reviewed.”(Rees, 2003: 38)Under section 30 of the Act 1986, the Board isrequired to hold an initial review of an involuntarytreatment order within 8 weeks from the date theorder is made. In effect, anyone who is subject toan involuntary treatment order, restricted involuntarytreatment order, assessment order, diagnosis,assessment and treatment order, a hospital transferorder, a hospital security order or restricted transferorder for a security patient, is to have the orderautomatically considered and reviewed by the Boardto determine whether the treatment regime continuesto be appropriate. It has been argued that the 8week period for review is no longer an appropriatelength of time for review. The changes to the mentalhealth system, the experience of patients, and theimpact of the Charter, suggest that the initial reviewof involuntary patient treatment orders should beconducted much earlier than 8 weeks.One of the longest reviewperiods in AustraliaThe current 8 week period provided for under the Act,is one of the longest time periods for an initial reviewin Australia. An initial review is required in Queenslandwithin 6 weeks, within 28 days in Tasmania, and in theNorthern Territory a review is required by legislationwithin 7 days from the order having been made. Thelaw in New South Wales (‘NSW’) requires inpatientstatus to be reviewed by a Magistrate ‘as soon aspracticable’, with the result that patient treatmentorders are reviewed considerably sooner than inVictoria, and a similar system to that in NSW exists inthe Australian Capital Territory ‘(ACT’).I believe that the MHR Board should reassesspeople who are on CTOs when consumers notifythe Board that their life circumstances havechanged. E.g. They engage in study, voluntaryor paid work, change of address, supportivetherapy. Or 6 monthly if the consumer has notinitiated a review.Involuntary Patient AdvisoryGroup representative, September 2008For consumers on CTOs, the second automaticreview which currently only occurs annually is likelyto be of greater significance than for inpatients –relatively few people are in hospital for 12 months. Itis more likely that someone will be discharged from aCTO after, for example, four months than four weeks.It is here argued that the Victorian 8 week and 12month time periods should now be shortened tobring them more in line with that of other statesin Australia.Changes to the mental healthsystem since the enactment ofMental Health Act 1986Changes to the Victorian mental health systemhave resulted in major changes to the consumerexperience of involuntary treatment. The shift awayfrom institutionalisation and the concurrent reductionsin the number of specialist psychiatric facilitiesand the availability of psychiatric beds in generalhospitals, have resulted in many consumers spendingsignificantly less time in hospital as involuntarypatients. It is no longer uncommon for people tospend less than one week as an involuntary inpatient.In a recent report, the current President of the Boardstates that the average length of inpatient stays isnow between 10 to 14 days (Lesser, 2006: 8). With anautomatic review of the treatment not being required31

Lacking Insightfor 8 weeks, the result is that many people will nothave had their involuntary status reviewed at all.This is not a recent phenomenon. The AuditorGeneral’s Report from 2001, Mental Health Servicesfor People in Crisis, found that 51.6% of patientswere discharged within the first 2 weeks, and ofthe 6372 initial reviews listed for hearing, 37.8%of patients were discharged from their involuntarystatus prior to the hearing date. The current statisticssuggest that this trend is now culturally ingrained.Indeed, it is now standard practice to use the reviewdate as a treatment ‘trigger’ by clinicians, wherebya person is discharged just prior to review – thusdenying the person the opportunity to challenge hisor her treatment.As a result of the 8 week period a large number ofpeople will have spent time in hospital as involuntarypatients without having their treatment reviewed - asignificant number could have spent up to 6 or 7weeks in hospital without ever having their treatmentorder considered by the Board. And many people maybe subject to CTOs for longer than necessary as aresult of automatic reviews taking place only annually.As Delaney (2003) has noted, some commentatorshave expressed concern that an earlier review periodmay disadvantage those who are more acutely unwellwhen first admitted, as they may not be ready fordischarge at that stage. While disadvantage maybe the result in some instances, there is a greaterdanger in making assumptions about the capacity of aperson to participate in an earlier review. When the keyissue for consideration by the Board is the person’scompetence to refuse or consent to treatment, anapproach which suggests that an early review isdisadvantageous to a person because they are likelyto be incompetent, is a troubling predetermination thatthe person is indeed legally incompetent.Another consideration is the compatibility of thelegislation’s 8 week period with the MI Principles.The current Law Reform Commissioner and previousPresident of the Board, Neil Rees, has noted thatthe MI Principles make it clear that any ongoinginterference with the ability of a person deemed tohave a mental illness to exercise the rights of freedomof movement and freedom of bodily integrity, must besubject to a timely external review. While no definitionof ‘timely’ is offered, MI Principle 16.2 states that aninvoluntary admission shall be for a ‘short period’pending external review, and under principle 17.2,that the review shall take place ‘as soon as possible’.With the exception of the NSW and the ACT wherereviews are to be held ‘as soon as possible’, thereview periods under most Australian jurisdictions,in particular Victoria, are arguably incompatible withthis principle. The practical result is that many peoplesubject to involuntary treatment in Victoria will neverhave the interference with their rights to freedom ofmovement and bodily integrity properly scrutinized.Essentially, with regards to rights in Victoria, thepresent system allows people with, or deemed tohave a psychiatric disability, to be treated as secondclasscitizens.The adoption of the Charter has also castdoubt upon the legitimacy of the 8 week reviewperiod. This Charter permits the consultationand incorporation of overseas rights documentsand court decisions about the meaning of thosedocuments. The Charter gives people the right toan expeditious hearing, and the right to liberty andsecurity. It is arguable that the practice of an 8 weekreview contravenes the right to have a review aspromptly as possible. Overseas precedents suggestthat the review period of 8 weeks is too long. TheCourt of Appeal in the United Kingdom and theEuropean Court of Human Rights have also indicated32

Part 2 > The Contextthat the lawfulness of detention should be decidedspeedily, and that 8 weeks is too long for a review(R v MHRT London South, ex parte C (2001) LloydsRep Med 340; and E v Norway (1990) Eur Ct HR(Application No. 11701/85).Treatment PlansThe LawThe Victorian law regarding Treatment Plans can befound in the Act section 19A. Under this section, theonus is on the treating psychiatrist to ‘prepare, reviewon a regular basis and revise as required, a treatmentplan for each patient’. The psychiatrist ‘must take intoaccount’ the wishes of the ‘patient’ and, unless the‘patient’ objects, the wishes of any guardian or primarycarer engaged in ongoing care, as well as alternativetreatments, risks and whether the treatment is “onlyto promote and maintain the patient’s health or wellbeing”.It is also a requirement of the Act that a personwho is the subject of an ITO must receive a copy ofthe Treatment Plan in writing, and have its contentsexplained by a member of the treating team.The Board is required as part of the hearing processto review Treatment Plans and satisfy itself that thetreating team has considered the factors above, andwhether the Plan is capable of being implemented.The Board has power to order that Treatment Plansbe revised by the treating team, but does not havepower to vary them itself (section 35A).The Chief Psychiatrist’s Guidelines to CommunityTreatment Orders (2005: 4) provide that ‘the purposeof treatment plans is to provide a brief clear statementabout the treatment and services to be provided to apatient, to establish mutual expectations and in doingso, improve communication between treating teamsand patients’.The consideration by the Board of the factors set outabove should increase the extent to which consumersfeel their wishes are being taken into account.Neither consumers nor stakeholders involved in thisresearch provided significant feedback on TreatmentPlans. However, the extent to which they are rigorouslyreviewed as part of the Board’s processes clearly maybear on consumers’ experience of the Board as aneffective forum for having their voice heard.Board members in discussion groups articulateddisappointment with the general standard ofTreatment Plans. They believed that Treatment Planshad made little impact on services at all, that thoseservices that consistently offered a high standardof care, prior to the introduction of treatment plansalready took the time to prepare good plans.Though not as part of this research, consumers haveraised concerns about the fact that carers’ wisheswill be taken into account unless they object, andthat sensitive private information is shared. In manysituations, the wishes and interests of consumers andcarers are not in conflict, and carers, are often thebest or only support some consumers have. However,particularly in the area of treatment choices, consumersare conscious of the power imbalance, divergence ofwishes and/or sometimes intractable conflict which canexist between them and carers.Treatment Plans in practiceA plan where consumers have a say has morechance that they will comply with treatment.Providing an opportunity for (historically treatmentnon-compliant consumers) to be released frominvoluntary or CTO the next time they comebefore the Board.Involuntary Patient AdvisoryGroup representative, September 200833

Lacking InsightDuring my recent admission my Treatment Planwas not discussed with me. It was not writtenuntil the day before my Board Hearing when thesolicitor asked for it.Review requires an existing Treatment Plan asa baseline. How can a consumer’s innovationsand compliance be assessed if there is noTreatment Plan to guide them! Treatment plansfor parents who have dependant children shouldinclude automatic referral to home support upondischarge to aid the smooth transition and reassimilationof the family.Involuntary Patient AdvisoryGroup representative, September 2008Treatment Plans are not the result of a discussionheld between two (or more) equal parties. There is adecided power imbalance in the relationship betweena psychiatrist and a person who is subject to treatmentby law. The consumer’s ability to make demands isseverely limited by the nature of the relationship andfurther diminished by the wording of the Act: that thepsychiatrist ‘must take into account’ the consumer’swishes. There is no obligation on the psychiatrist toultimately follow the consumer’s wishes in the TreatmentPlan, and the Board has no power to vary them. Thepower imbalance and problematic onus under section19A also mean that there is a risk that the wishes ofcarers may too often be prioritised. Treatment Plans aremost definitely not Advance Directives.Advance DirectivesAdvance Directives are documents that are initiated andcontrolled by the consumer. Briefly, an Advance Directiveis a document that consumers can create while theyare well (that is they possess ‘capacity’ in legal terms),which stipulates all that they would like done for them inthe event they become unwell later on. This can involvespecifying which medication they prefer, which type of34action is to be avoided (such as seclusion or ECT), andwhat needs to be done on a practical level (such as whowill take care of their children, who will ensure their billsare paid, and so on). An Advance Directive allows theperson to take control of their health, which is a crucialpart of recovery. Advance Directives acknowledge thatthe person is an expert about his or her own mentalhealth – and knows what works and what doesn’t.Essentially the difference between Treatment Plansand Advance Directives is how best to assist a personwith a psychiatric disability – and how to meet theincreasingly great obligation to give optimum effectto people’s human rights. Treatment Plans conveythe view that a person with a psychiatric disability isincompetent and must rely on decisions made byothers – this is also known as substituted decisionmaking. Advance Directives, on the other hand, allowconsumers to engage trusted others to offer theirsupport – a supported decision making model.Anti-discrimination principles support the introductionof Advance Directives. Under the Medical TreatmentAct 1988 people with a pre-existing medicalcondition can decide in advance to refuse treatmenteven if that might result in death, provided they havedecision-making capacity. People with mental illnesscannot do this. The Charter and the Convention, infortifying the obligation to provide least restrictivemeans of providing treatment and optimisingconsumer choice, greatly strengthen the argumentfor implementation of Advance Directives.Therapeutic Jurisprudence“Enjoy your chickenParma for lunch”Researcher Observations

Part 2 > The ContextThis quote is from the Chairperson to a personinvoluntarily detained on a CTO upon the conclusionof that person’s review hearing, whilst handingover the written decision that confirmed continueddetention. Although researchers observed someBoards as skillful and engaging warmly with theperson to develop a comfortable report, suchsuperficial pleasantries, often made by membersof the Board at the conclusion of hearings areglib statements in the context of the person beingstripped of human rights. Is this what therapeuticjurisprudence amounts to?What is Therapeutic Jurisprudence andhow did the practice come about?“Therapeutic jurisprudence grew out of mentalhealth law . . . it looked at the way in which asystem that is designed to help people recover orachieve mental health often backfires and causesthe opposite. Therefore a perspective developedrecognizing that the law itself . . . sometimesfunctions as an antitherapeutic agent.”(Wexler, 2000: 128-9)For many years consumers, academics and mentalhealth professionals have been concerned that thecourt or tribunal hearing process is itself detrimentalto the mental health of the person having his orher treatment status reviewed. The way the legalsystem operates has come about, in part, becauseof the way the law views itself, namely as animpartial arbiter of justice. The notion of justice wastraditionally viewed as being one that came aboutthrough rigid adherence to rules and impersonalconduct. As a consequence of this view, courts andtribunals are often places where a person’s emotionalwell-being is not considered in any meaningful way.The negative effects on a person’s well-being wereviewed as ‘largely irrelevant’ (Winick, 1997: 185), theprice paid to get to the truth of the matter.This idea has been challenged in recent times. In theearly 1990s a number of researchers, predominantlyin the United States, became interested in the effectsof this tendency of the courts to ignore the waylegal processes impacted upon the health of peoplein attendance. This research, which suggestedcorrective measures to inappropriate practice, isknown as therapeutic jurisprudence.“Therapeutic jurisprudence is the study of therole of the law as a therapeutic agent. It looksat the law as a social force that, like it or not,may produce therapeutic or antitherapeuticconsequences. Such consequences may flowfrom substantive rules, legal procedures, or fromthe behavior of legal actors (lawyers and judges).In other words, one may look at the law itself asbeing a therapist—or at least a therapeutic agentor tool.” (Wexler, 1992: 32)Therapeutic jurisprudence has become a veryinfluential concept in the everyday running of courtsand tribunals. Whilst therapeutic jurisprudencedoes not override other concepts such asprocedural fairness and justice, it is purported tobe complementary to these objectives. Officersof the court – namely judges, tribunal members,solicitors, advocates – are now aware that the law‘produces behaviours and consequences’ (Wexler,2000: 125) and given this understanding therapeuticjurisprudence recommends that hearings ought to beconducted in such a way as to promote the health ofthose in attendance.How should Board hearings beconducted to promote the healthof those in attendance?“People’s evaluations of the fairness of judicialhearings are affected by the opportunitieswhich those procedures provide for people toparticipate, by the degree to which people judge35

Lacking Insightthat they are treated with dignity and respect,and by judgments about the trustworthinessof authorities. Each of these factors has moreinfluence on judgments of procedural justice thando either evaluations of neutrality or evaluations ofthe outcome of the hearing.” (Tyler, 1996: 12)To better understand the implications of a theorysuch as therapeutic jurisprudence, it is useful to applythe theory to the practice of running of a tribunal – inthis case the Board. In what ways can the Boardoperate so as to act as therapeutic agent, and notharm those in attendance?The Board exists to review the treatment decisionsof a treating clinician. It is therefore important thatthe treating clinician’s decision to involuntarily treatthe person is the focus of the Review. The personreceiving involuntary treatment must feel as thoughthe Board is questioning the veracity of treatmentdecisions and professional judgment, and notmerely confirming the clinical opinion of the medicalprofessional. This is part of what has been referred toas the ‘consumer-centred hearing’. Other examplesof the consumer-centred process which influencedthis research project are:• Providing consumers with information about thereview process in a form that they can understandTo be able to properly participate in the reviewprocess a person needs to be provided withinformation, prior to the hearing, about his or herrights, and about the review process. This informationneeds to be provided in a format that they can easilyunderstand and remember (Freckelton, 2003: 46)and needs to cover the different stages of the reviewprocess. A written Statement of Reasons must beprovided to consumers and / or their advocatesafter every hearing.• Allowing the consumer to speak firstIt is important that the Board encourages theconsumer or the representative to speak first atthe hearing. This may be crucial if the personis medicated and the ability to concentrate hasbeen diminished, but it is also an assurancethat the treatment team will need to respond tothe person’s point of view and not vice versa. Itacknowledges that the person’s voice, experienceand perspective are the most important aspect ofthe hearing.• Ensuring consumers are heardThe Board appeared rushed and keen to resolveall the matters before lunch. As the involuntarypatient was exiting the room, and within earshot,one member stated to the others that she had toleave early. [Researcher observations].Speaking first is one thing, being heard is another.The Board should function in such a way as tobe able to spend the appropriate amount of timeon each individual hearing. There is a tendency toschedule too many hearings in the one session.This can mean that the hearing is rushed, andthat consumers leave the hearing feeling asthough they were unable to properly presenttheir version of events. A rushed process canlead to a sense of predetermination by the Board(Freckelton, 2003: 47).• Granting the consumer or their representativecomplete access to the clinical fileThe Board must conduct a fair hearing. It alsoneeds to conduct itself in such a way as toallow the person to feel that he or she has beengiven a fair hearing. The person must haveaccess to the same information provided to theBoard. Although it is acknowledged that theremay be exceptional circumstances when it is36

Part 2 > The Contextinappropriate for a person to receive part or partsof the file (due, for example, to confidentialityissues or to the extreme distress that it maycause), the inverse may also be the case, andfailure to provide proper access may itself be thecause of unnecessary anxiety. Crucial evidenceis contained in the clinical file and in the clinicalreport prepared for a Board hearing. Sufficienttime to prepare a response to the file is necessaryto ensure a fair hearing.• Providing access to representationGiven the human rights issues at stake and thefact that many consumers who attend reviewBoard hearings do so adversely affected eitherby medication or symptoms, it is recognizedthat representation in the form of advocacy orlegal representation is necessary to secure a fairhearing (MI Principles, Principle 18).• Considering the effects of the hearing ritualOther aspects of how hearings are conducted – orrituals – clearly impact on how consumers experiencethe process. Level of formality, the physical andother logistics and certain aspects of “ceremony” orprocess require consideration (Tait, 2003).The pros and cons oftherapeutic jurisprudenceCritics of therapeutic jurisprudence are concernedthat the theory will encourage tribunals to takeon the role of social worker, and thus becomeinvolved in the person’s life far beyond the dateof the hearing. The proponents of therapeuticjurisprudence are eager to suggest that the theorydoes not promote greater paternalism. On thecontrary, proponents of therapeutic jurisprudenceadvocate for increased autonomy, decry the use ofstigmatising language, endorse the right to refusetreatment, and call for very narrow definitions ofmental illness so as to reduce interference fromgovernment authorities (Winick, 1997: 191).From the point of view of advocacy, therapeuticjurisprudence poses a number of problems. It canbe argued that therapeutic jurisprudence confusesthe role of the tribunal. One particular problem isthe tension that therapeutic jurisprudence createsbetween the ideals of promoting health anddefending rights. From the perspective of rightsprotection, therapeutic jurisprudence can be seenas a threat to comprehensive representation, as theadvocate or legal representative may be encouragedto feel as though it is not in the best interests ofthe client to have the strongest defence advanced(Diesfeld, 2007: 570). It has been said by a numberof critics of therapeutic jurisprudence that it has “notyet provided a way of choosing among competingvalues or of balancing other values againsttherapeutic values’’ (Kress, 1999: 556). This is a realproblem when the Board is the only avenue availableto a person to argue against the treating team’sdecision that they are in need of treatment.Lawyers apply an instruction model of advocacy anddo not act on best interest, perceived best interestor take instructions from family or carers. It is not therole of the representative to question the value of theclient’s opinion, but, rather, to present it to the bestof his or her ability. Clients of the Centre often conveygreat appreciation of an advocate who is committedto rigorously advocating their views in a context wheremost others adopt a “best interest” perspective.37

3 > The Involuntary Patient ExperienceIt is seldom the case that the opinions of peoplemade involuntary patients in the state of Victoriaare heard. What follows is taken from consumerinterviews of what it is like to attend a Board hearing.The researchers analysed all interviews, extractedthe common themes and provided a summary andrepresentative comments of interviewees in relationto each. Also included are relevant observationsmade by researchers who sat in on Board hearings.We cannot discount or disregard these experiences.Each quote was carefully selected as an example ofan issue, concern or theme resonant in interviews,both stakeholder and consumer. Observations areincluded only when significant and necessary toaugment the consumer experience.Inquisitorial v AdversarialUs against themThe Board is an Australian tribunal that is empoweredto operate in an investigative or inquisitorial manner.This means it does not just wait for evidence tocome to it. The Board is supposed to make enquiriesto ensure there is adequate evidence to make adecision. So in principle it is not adversarial; it doesnot rely on two parties having an open contestabout the evidence. Despite this, the setting isdescribed by consumers as oppositional. This is notaltogether surprising as a review or appeal hearingto assess any change of a person’s involuntary orderis necessarily opposed by the treating practitioner,otherwise the practitioner would have discharged theorder prior to the hearing.Participants involved in this study have identifiedthis oppositional setting as intrinsically unfair andhave reflected upon their subsequent sense ofpowerlessness and lack of equity in the process.It is therefore a challenge for decision makers toencourage participation, to address the powerimbalance and to both emphasise and ensure thatthe process is impartial and fair.The Board: a Rubber Stamp?Far from viewing the Board as a forum to investigatethe appropriateness of their involuntary patientstatus, many consumers see this particular tribunalas the venue for an unfair adversarial contest. It isseen as unfair because the views of one side – thoseof the treating clinician – appear to be given greaterweight in the Board’s decision-making process; somuch so, that some consumers see the Board aslittle more than a means of lending legitimacy to theopinion of the treating clinician.“The whole feeling Igot was this is a rubberstamp show . . . andthere’s going to be nochance of me walking outof this a free person.”JM - ConsumerMany consumers spoke of the Board as a rubberstamp, others called it a ‘kangaroo court’, to themthis meant that the decision was made prior tothe hearing.Various factors in the way the Board conducts itselfencourage consumers to view the hearing process ina negative way.38

“It appeared to me that the hearings had apredetermined outcome . . . [the] decision wasmade before I had gone in. There was no testing ofevidence, there was no probing of evidence, it wasjust whatever the psychiatrist said.”GF - ConsumerPerception of pre-determineddecisionsThe Board, like all other tribunals, has developedparticular ways of operating that its members believeto be the most efficient way of fulfilling its responsibility.There is no doubt that some of these practices arecause for consumer concern. These practices maycontribute to the fact that many consumers have verylittle faith that the Board will act to uphold their rights.One factor in particular seems to contribute to thebelief that the Board is not adhering to its proscribedrole of independent review.There is foremost a belief that the treatingpsychiatrist’s report carries so much weight asto render the review process little more than anaffirmation of that report.Assumptions about professionalrelationships: the clinician andthe psychiatrist memberIt is suggested that the importance of professionalcourtesy appears to play a large part in the decisionmakingprocess of the Board. There is particularconcern about the relationship between the treatingclinician and the psychiatrist member.Consumers believe that the psychiatrist on the Boardis almost professionally compelled to agree with thediagnosis of the treating clinician.Because of this distrust, consumers say they aremore inclined to discuss their circumstances with thecommunity member, believing that he or she is themost likely of the three Board members to listen tothe consumer point of view.“There should not be a psychiatrist on the ReviewBoard because you’ve got a psychiatrist checking ona psychiatrist and they’re not going to go against oneanother. They won’t go against one another.”PF - Consumer39

Lacking Insight[Then], if it’s legal stuff, [I’ll speak to] the legalmember but absolutely last is the psychiatrist.I’ve tried getting second opinions. No matter howhard you try, and in all my hearings, I’ve neverhad one psychiatrist go against the other.RM - ConsumerAssumptions about professionalrelationships: the clinician andthe case managerTo some consumers the review process appearsto be a forum for confirming the treating clinician’sopinion rather than offering any objection to it.There is widespread belief among consumers thata case manager has to support the opinion of thepsychiatrist with whom they work on a professionalbasis so as not to jeopardise that relationship.What do you think the role of case managersare at Board hearings, do you think theyshould come?Well they are in a very difficult situation ’causethey have to uphold the doctor’s viewpoint.Why would they have to uphold thedoctor’s viewpoint?Because they work as a team and if they are notseen to be working as a team that just doesn’t godown good for them anyhow, but they are alsosupposed to be a support for the personso I think it would be hard.TF - ConsumerIt’s all in the reportTo consumers it appears that the psychiatrist’sreport is the only thing that matters to the Board informulating its opinion. Board hearings have takenplace where clinicians were either not asked to offersupporting evidence for their diagnosis or were notasked to respond to a consumer’s version of events.These hearings were also marked by a perceived lackof interest in the testimony of consumers.“Well, they did not writedown notes, nothing tomy knowledge. They didnot ask me to expandon anything, and at nostage did they ask [thetreating clinician] tosupport what he wassaying [when giving]evidence.”GF - ConsumerIn NM’s hearing, in which the clinician presented hisevidence by telephone, the clinician spoke first andthen ended the telephone call to attend to anothermatter. The consumer then offered the Board analternative view of particular events that was notfollowed up. There was no opportunity for theconsumer to challenge the clinician’s evidence.40

Part 3 > The Involuntary Patient ExperienceAnd it doesn’t seem that they took the effort tofollow up, ring [my doctor] back up and say tohim, ‘Oh, listen, “N” presented this point of view,can you clarify?’ [It] doesn’t seem that they tooka pro-active role at all. They were very passivein the manner in which they approached theissue. They didn’t make an effort to find outwhether statements I was making were correct,or whether [my doctor’s] statement was correct.NM - ConsumerThis consumer’s belief that his version of events wasgiven less weight in the finding of the Board wassupported by the Statement of Reasons - requestedafter the hearing – that contained information thatwas not discussed during the hearing proper, i.e.when the consumer was also present. This led NMto conclude that the treating clinician had discussedhis situation before the hearing and that this hadrendered irrelevant the material that was providedduring the hearing.The consequences of theBoard hearings appearing to bepredetermined• Consumers may not see the point ofengaging legal representationThe belief that Board decisions are based solelyupon the opinion of the treating clinician leadsconsumers to engage with the Board in a waythat reduces the likelihood of a successfuloutcome. Some consumers stated that it wasbecause of the ‘already settled’ nature of theReview that they had never bothered to engagelegal representation at a Board hearing.Whilst very few consumers have their involuntarystatus altered by the Board, the chances of suchan outcome are markedly increased when legalrepresentation is engaged. Between March 2004“I had someone speakto me - I can’t rememberher name - from LegalAid. I didn’t knowabout you guys [MentalHealth Legal Centre].Never heard of youguys before, but I didknow I could have legalrepresentation, but Ididn’t see the point.”BF - Consumerand March 2005, and March 2005 and March 2006,for example, people with legal representation weredischarged at a rate more than three times greaterthan unrepresented consumers (Board StatisticalReports provided to advocates at Legal Service/Board Liaison Meetings).• Consumers don’t attend the hearingPerceptions of a predetermined decision mayresult in consumer non-attendance at Boardhearings. There is a high level of non-attendance byconsumers at Board hearings (47.8% in 2006/07)(MHRB, 2007: 28), and the Auditor General raisedconcern about this in the 2002 report Mental HealthServices for People in Crisis (p8). Generally, whenconsumers do not attend their hearing they havevery little chance of having their status altered.41

Lacking InsightThus a sense of predetermination may result in thecontinuation of an order regarding the consumer’streatment status, regardless of the needs of thatparticular consumer. It also certainly reduces theconsumer’s level of participation in the treatment,and the likelihood of one of the possible changesother than discharge occurring. Some nondischargebenefits of a hearing can include earlyreview, a change in treatment regime, a revision of atreatment plan, a favourable decision on a key issuesuch as whether the consumer actually poses anyrisk to anyone else, or simply having his or her viewsconsidered by an independent body.Access to InformationAccess to information is an important part of the Boardprocess. Once a hearing is scheduled the person hasthe right to read and get a copy of any documentsthat the Board will consider at the hearing. Thesedocuments must be made available at least 24 hoursbefore a hearing. The documents include a Report onInvoluntary Status prepared by a treating practitionerfor the Board and should include issues relevant to thecriteria for involuntary treatment and a treatment plan.Access to information, which is timely, full, and frank,allows the consumer to know about the circumstancesthat have resulted in the involuntary detention andthus provides the opportunity to properly present theconsumer’s own version of events to the Board. Thismay involve calling upon witnesses and independentopinion. Information about the Board’s processes isalso important as it allows the consumer to betterunderstand the workings of the Board and the reasonsfor its decisions. Access to information empowers theconsumer before, during, and after the hearing. It isno surprise that consumers are particularly concernedabout the lack of access they receive, both to personaland procedural information.Access to a consumer’s file: anissue of natural justiceMany of the concerns raised by consumers involveimportant applications of principles of natural justice.Natural justice has been described as:The right to be given a fair hearing and theopportunity to present one’s case, the rightto have a decision made by an unbiased ordisinterested decision maker and the right tohave that decision based on logically probativeevidence: Salemi v Mackeller (no 2) (1977)(Nygh & Butt, 1998)Consumers told researchers that gaining access totheir case file is a major concern. Some consumersstated that they had no knowledge of their right toaccess their file; others reported that they were notprovided with enough time to understand the file’scontents. Some people, aware of the contents oftheir file, were disturbed that the file had documentsmissing. People were not generally aware of theexemption provisions for some documents.One of the demands of natural justice is that the partiesare allowed to comprehensively present their case.No access or inadequate access to their file is likely tomean consumers are effectively denied this opportunity.Some consumers are unawarethat they have a case fileDid you get to inspect your case file?No.Did you know you had a file?No.If you had to go before the Board againnow, would you inspect your case file, knowingyou can?42

Part 3 > The Involuntary Patient ExperienceWell how does that work, because don’t youneed to go before Freedom of Information so theycan black out bits.Not when it is a Review Board hearing?Okay then, I would do it.BF - ConsumerThe Board assesses the appropriateness of aperson’s treatment through questions asked at thehearing. The focus of the questions is to establishthe level of insight the person has into his or herillness and the need for treatment. It is difficult forthe person to argue against an alleged lack of insightwithout knowledge of the contents of the file andreport. The information the Board receives from aconsumer is seriously lacking when a person haslimited knowledge.Some consumers don’t knowthey can access their fileA number of consumers said that they discoveredthey were able to access their file after having alreadyattended a number of Board hearings.Did you understand you could see your casefile before the hearing?No, the only time I knew that I could see myfile was when I started working [at my currentemployer] and my boss told me I could make anapplication to see my file, which I did. And I saw ittwice for about 20 minutes and when I wanted tosee it again a year later they said I had to applyto see it again.DF - ConsumerClearly some consumers become aware of theirrights by chance. Rather than empowering people intheir appearances before the Board, the process canactually present obstacles which hinder the receptionof information.Some consumers’ lawyers arelimited in their access to their fileAs well as having difficulty accessing informationabout their own treatment, a number of consumersreported problems that their legal representative hadgaining access to their case plan file.What about being able to see the file andthings like that?The file was not there, [my solicitor] tried to look.[My previous lawyer] was only given a couple ofminutes to have a look when he requested to gothrough it. They treated [my solicitor] with morerespect than they did [my previous lawyer]. I wasat no stage able to see the file, when I asked tosee it [my] doctor came out and said to me no youcannot see the file. This was the second hearing.GF - ConsumerSome consumers are notgranted enough time to lookthrough their fileThe most frequently cited complaint about thesystem of review was that consumers were givenan inadequate period of time to see their file or thereport provided to the Board.Did you receive the doctor’s report to readbefore the hearing?Once.Did anyone go through that report with you?No, they just handed it to me, said this is yoursto have.43

Lacking InsightDid you think it was better when you had thereport beforehand? Did that help you going tothe hearing?It didn’t give me enough time and I’m intellectuallywith it . . . Just think of other people that are notand partly unwell who would not have a hope ofunderstanding those reports on the morning [ofthe hearing].BF - ConsumerViewing the case file shortly before attending a Boardhearing can mean a consumer is still affected by thematerial during the hearing.The practice of viewing the file varies from clinic toclinic. The most common practice is that peopleview the file with their lawyer, if they have one, ortheir case manager. Sometimes if consumers arealone they are not permitted access to their file. Thispractice seriously impacts upon the person’s ability toprepare a case for the hearing.As one consumer experienced in Board hearings notes:It’s always a shock when I read my file, becauseit’s always full of exaggerations and I always makesure I get that the day before because if I get thatright – a couple of times I’ve had it right beforethe Review Board hearing and I’m so upset fromreading it that I’m a bit speechless during theReview Board hearing, so I try to make it that Ihad read that the day before.PF - ConsumerThe consequences, then, of inadequate preparationare not only that the person is unable to put forwardthe strongest case for release from the ITO, it alsomeans that the person may be placed in a situationthat causes much distress. As such, the Boardprocess may be partly responsible for the demeanorupon which it bases its conclusions.It seems that too many consumers travel through thesystem never exercising their right to read their file,either because they do not know about this right orare not provided with the opportunity to do so.“You can’t respondto it, you can’t defendyourself against it;you can’t challenge itbecause you don’t knowit’s there.”GF - ConsumerConsumers’ Level of Understandingof the Review ProcessFrom the interviews it seems there is a lack ofknowledge about, or inability to act on, a lot ofinformation that could make Board hearingsmore participatory and less demoralising. Theconsequences of this information not being supplied,or being ineffectively supplied, not only underminenatural justice but also cause unnecessary confusionand frustration.‘No idea what to expect’An attendance at a Board hearing can be a verychallenging experience for a person who has little ifany understanding of the Board process. This canresult in trepidation and anxiety.44

Part 3 > The Involuntary Patient ExperienceWhat was your understanding of the Board’sprocess? How did it function?I had no idea what to expect . . . all I knew wasthat when I arrived there, there were these ratherstaid looking people sitting behind the table, along table . . . I felt really intimidated by them.TF - Consumer“The first time I wentin, I have been before aReview Board twice, thefirst time I was scared, Ireally didn’t know whatwas going to happen asresult of this flamingReview Board.”BM - ConsumerSome consumers understand the Board’s role butdo not know how it goes about carrying it out. NMdidn’t know that the Board would be reviewing hisclinician’s diagnosis of him by evaluating his mentalstate on the day. Had he have known this he wouldhave conducted himself differently: believing the Boardwould take away all the evidence and review it latermeant that NM attempted to present as much materialas possible, which made him appear disorganised.Well, when I got their report [Statement ofReasons] . . . they made a comment about how Ipresented and used that as evidence to justify oneof the criteria. Okay, um, like I said I was probablya bit disorganised and I think they picked up onthat. Disorganised in the sense, not so much thatI was speaking incoherently more that I wasn’table to present my case properly . . . I found ita confronting experience when I got their reportand it contained elements describing what theyinterpreted to be my psychological state at thattime, and I wasn’t informed about that [beforethe hearing]. I think that was a major issue . . .how can somebody, you know, play a dual role,I thought they were there to ascertain validityin my claims, and to discuss issues relating tothe community treatment order, not to make apsychological assessment of me at that time.I don’t think it [should be] their right to do that.NM - ConsumerWho are these people?Consumers also professed to having littleunderstanding about the different roles of memberson the Board. There was particular confusion aboutthe role of the community member.I couldn’t understand the function of thecommunity representative. I don’t know, I neverreally was able to establish [that]. It wasn’tdocumented what their roles were prior to thehearing, and from that aspect it is obvious thatthey didn’t provide enough information.BF - ConsumerThis situation is not helped by reluctance on the partof some members to introduce themselves and theirrole on the Board.The thing . . . that sticks out in my mind is that. . . they started having discussions, you knowaddressing [my solicitor] and I said to the Boardmembers, “Listen, do you mind if you at least45

Lacking Insightgive me your names?”, as they didn’t introducethemselves and they didn’t state their um, theirfunctions and [my solicitor] picked up on thatpoint as soon as I mentioned it to her. [I said]“I don’t know what roles, what capacity you’replaying, you haven’t identified yourselves. Wouldyou mind discussing that issue with me?” Andone of the members there took offence to thatand said that she wasn’t going to tell me, it wasin my minutes, I was recording everything thatwas happening. And she said she wasn’t goingto, that it wasn’t necessary, yeah, and I canremember [my solicitor] specifically forcing thatpoint there - it went on for about 5 or 6 minutes.And in the end they did introduce themselves andthey did tell me what their functions were.NM - ConsumerNo explanation givenabout the legal criteria forinvoluntary treatmentThe Act section 8 (1) contains the five criteria thatmust be established for a person to be treated as aninvoluntary patient. Given that these criteria form thebasis of the Board’s decision, consumers rightly believethat it is necessary for the Board to inform them of thecriteria and to actively show how it had been applied intheir situation. This is especially important given the lowrate of legal representation before the Board.Someone should do it [explain the law] I think,one way or another . ... I think quite often it isgoing to be quite a long-term thing. If you aresaying all those 5 are untrue, to go througheach of those with the person is going to take awhile and they are probably not going to agreewith some of them at least immediately. If anyof them. But I do think it should be done. Ifthat is the reason why a person still has to stayin hospital or still has to be on a CTO I think itis important that the person is given a chanceto develop that understanding of why thosedecisions have been made.GF - ConsumerDifficulty understanding theBoard’s assessment andconcerns about the health of theconsumerThe importance of the Board having an educativerole is that it may be one way (among many) thatthe consumer comes to better understand theevents and behaviour that the clinicians believecan make them unwell. This information mayprovide consumers with the opportunity to addressthese concerns and to empower themselves tothe point where they are no longer assessed asneeding involuntary treatment. It may lead to greaterunderstanding of their diagnosis or greater “insight”.It is confronting for someone, I think, because thedoctors are much more able to put a case thanthe patient. The doctors have the advantageof knowing the terminology and the terminologywill either be foreign to the consumer and theywon’t know what the person is talking aboutor sometimes they will know a bit and they willsee it as judgmental or whatever. So I thinkit is weighted in favour of the doctors and theprofessionals there and that is where I thinkmore work could be done to spend that time tosay, ‘Look we are saying you [have a particulardiagnosis] and this is what we mean by it andthis is how we are judging it in your case. Sothis is why we are saying that you need to stayon this treatment. This is what the treatment willbe and this is how it will help that to subside’,and you know all that sort of stuff. I think that46

Part 3 > The Involuntary Patient Experiencecould be done better. I think sometimes it is donewell, and I think it does need to be done. Sothat if someone is unsuccessful or even if theyare successful they develop an understandingof what the language means and how it’s beingapplied and how it applies to them so they cantake some ownership of, okay [for example] mymood is fluctuating rapidly and so I need to bea bit careful or you know I am getting high sothis is what I need to do or whatever it is. I thinkotherwise it is a fairly intimidating experience forpeople and they usually lose and they don’t knowwhy they lose and why they should change orwhat is wrong or whatever.I think more work could be done for people, whenthe decision does go against them, to make surethat they understand why that is.NM - ConsumerNeed for assistance inunderstanding informationTime and time again consumers say that theprovision of information on its own is not an effectiveway for them to gain an understanding of theBoard process. Many consumers emphasise theimportance of receiving assistance to understand anywritten information that is provided.Did you get given any information about theBoard, any printed materials?Just in a book that was about it. [There] was justa brief description [of the] Mental Health ReviewBoard, that was it. When you are unwell youdon’t take a lot of notice . . . they might give youthe information but whether or not it gets readbecause you are so drugged up, all of suddenyou are not really thinking as clear, so you justdisregard and accept it . . .HM - ConsumerThere were pamphlet stands in the waiting roombut no booklets or pamphlets relating to the Boardprocess. A letterbox labelled ‘Complaints’ was emptyapart from some discarded sweet wrappings. Therewere no Victoria Legal Aid or Mental Health LegalCentre posters. Outdated meeting notices were ondisplay. [Researcher Observations]Lack of information about legalrepresentationA number of consumers said they were unaware thatthey had a right to legal representation to assist themwith the preparation of their case and on the day ofthe hearing.I just get a message saying that you havean appointment with the Board coming upvirtually tomorrow, but no real length of time toget a lot of things organised for yourself.Was the other hearing when you were inhospital?Yeah.Did anyone inform you about your legal rightsto representation before the Board?No, to tell the truth, no.CM - ConsumerWhile access to information about legalrepresentation is crucial, consumers also needassistance in securing that representation.When a person is about to come before theBoard, he or she may not be in a position to activelypursue all the relevant rights. It is at such times thatlegal representation ought to be provided, or atthe very least assistance provided in attaininglegal representation.47

Part 3 > The Involuntary Patient ExperienceDid you request a Statement of Reasons fromthe Board?No, I didn’t realise.Did you get one?I don’t remember anything like that, I wasn’t givenany of that, because I would take that with meand know what is really going on.CM - ConsumerSimilarly, people reported having little or noknowledge about the appeals process. It is animportant aspect of all courts and tribunals that theirdecisions are open to the scrutiny of review.Rituals of a HearingRituals in a legal setting establish authority andpower. The rituals that take place in a court signalto people the importance of the proceedings, thehierarchy of those involved, and demand adherenceto the rules and findings of the court. Elements thatconstitute the ritual of a Board hearing include allthe events that take place before, during and after ahearing, the manner in which they occur, the orderin which they occur, and the venue where they takeplace (Tait, 2003). As occurs with any other tribunal,the Board has developed ways in which it conductsitself that have come about either out of necessity orhabit. Of particular concern to consumers is the waythe tribunal space is ‘used’ and ‘owned’, and theorder of the speakers who appear at the hearing.An overpowering,oppositional settingConsumers wait outside the hearing room untilBoard members are ready to receive them. TheBoard is already seated in the hearing room. Forconsumers this contributes to the feeling thatthey are entering a space that ‘belongs’ to themembers. This gives people the impression that theycommence the hearing already ‘on the defensive’ orat a disadvantage. Sometimes introductions are notoffered by Board members, which further diminishesthe consumer’s sense of belonging and ability tocomprehend proceedings.“You open the doorand walk in and all ofa sudden you are inthe hands of peopleasking you a heap ofquestions. [Then] theysend you on your way,you know, you feeltotally frustrated.”CM - ConsumerPhysically when you walk in there it’s like walkinginto a little court room. You have got the three ofthem sitting there very big, authoritative, and youare sort of sitting about a couple of metres backfrom them and you are the focus and it isvery intimidating.. . . It could be a lot kinder I think, almostimmediately you feel that you have done somethingwrong and they’re here to judge it.CM - Consumer49

Lacking InsightThe configuration of the seating in most Boardhearings is of concern to many consumers. Thetypical set-up, with Board members on one side ofa table and the consumer on the other, is viewed asan attempt by members to assert their authority overthe proceedings and to leave the consumer feelingsmall, even ‘guilty’. In general, the layout of theroom is viewed by consumers as an attempt to putthem in their place. Rather than a way of facilitatingdiscussion, the seating arrangement is viewed as ameans of allowing greater scrutiny.If you had to think of one particular thing aboutthe Board that stood out most to you from yourexperiences what would that be?Good or bad? This is hard . . . I think just theimbalance of power in the meeting. The way theroom is set up.How do you think it could be set up better,what would you suggest?More of a round little table. Not a big boardtable like I had, you know; doctors do it thesedays, they have people sitting on the corner notopposite. Just the power thing.BF - ConsumerCan you describe the physical environment ofthe hearing space?Sure, big officious looking room. Huge meetingtable in the middle, three chairs set up on theother side and my chair on the opposite side ofthe table. Very overpowering.TF - ConsumerDid you have a feeling about whosespace it was?I felt it wasn’t neutral and I felt that the seating wasuncomfortable, that there wasn’t enough room toopen up my files and to organize things properlyso I could present them to the Board. Um, veryconfined as far as the table space was concerned.The seating of the three staff members, yeah .. . I felt it was so that they were sitting in a veryauthoritarian position, the way the seating had beenarranged. I didn’t feel as if it was a meeting where Icould discuss openly, you know, it was almost sortof like a court room environment rather than beinga place where I was going to present them withevidence and they were going to research and findout whether my claims were true or not.NM - ConsumerNameplates, with the initial of the first name andsurname are produced by some Board members. Theywere observed to be in front of all members on someoccasions though often only in front of one or twomembers. One community member stated her namein full at the beginning of the hearing and pointed to thenameplate inviting the person to read it. Observers didnot note any hearings in which consumers were askedwhether they would like paper or a pen to assist themwith taking notes or to write down the names of themembers. Board decisions are signed; however thesignatures are not always legible and the names andtitles are not printed on the document.Board members arrived through the front door of theclinic and walked through a waiting room occupied bythose awaiting hearings. They were acknowledged bythe receptionist. It was apparent that she knew them.The secure doors were automatically opened to allowthem to enter. We remained locked outside. It madeus feel like outsiders and that they (members and staff )were all together. [Researcher Observations].An overly formal processThe formality of the hearing is determined by themanner in which people act and speak and theadherence to a procedural method of conducting50

Part 3 > The Involuntary Patient Experienceproceedings. The general feeling among consumersis that the formality of the Board – typified by a highlevel of impersonality - contributes to the Boardhaving the atmosphere of a court. Consumers speakof a ‘distance’ between Board members and thoseappearing, and of a ‘coldness’ that accompaniesproceedings. These negative attributes can make itdifficult for consumers to feel comfortable enough tosuccessfully communicate their point of view.How do you think the formalityof the Board works?It makes it even more daunting.How formal did you find thehearing process?RM - ConsumerOh, very formal it was very formal, it was likebeing tried by a jury, and you are waiting for thesentence to be handed down. It was not verypleasant at all. I am sure that there is a better wayof doing it. I felt that I was on trial.That is why the Board needs its processeschanged, I think, so it is more empathetic andless judicial in the way it appears.TF - ConsumerSome of the rooms in which Board hearingsare conducted are large and, because of this,‘intimidating’ places. This contributes to the formalityof the hearing, and to the belief on the part ofconsumers that a Board hearing is about punishment,not about reviewing their treatment. Some of theserooms obviously had other uses; researchers observedsettings that were cluttered with computers and otherequipment [Researcher observations].Can you tell me whether that made anydifference, the size?Yeah, it did, the bigger room felt like I was goingto sit in a court hearing, like a legal court, it feltquite intimidating and it wasn’t warm and itwasn’t friendly,CM - ConsumerHow the Board membersthemselves present can increasethe sense of unhelpful formalityDefinitely tell them to look more relaxed, I knowthat it is a formal procedure but they could sortof relax.BF - ConsumerLess formality would help to make the hearing lessstressful for consumers. One innovative solution is tohave the members meet with the consumer prior tothe actual hearing, so as to make the experienceless overwhelming.One of the difficulties I think the Board has ishow to, if it wanted to, how could you make itless formal without breaching the legalities thatthe Board needs to follow, that’s a hard one. I’mnot usually one to bring up difficulties withoutsome idea of a solution and maybe each of theBoard members could meet with the person for5 minutes over a cup of coffee beforehand tokind of get to know the person, relax the person,do you reckon, maybe? Maybe just that in itselfmight take some of the formality out of it a little sothat it might operate a bit more comfortable forthe consumer and less stressful, less daunting.RM - Consumer51

Lacking InsightThis suggests that a therapeutic approach is notbeing achieved. People demand to be seen asindividuals, and for decisions made about theirtreatment to be made in a process that is conduciveto the improvement of their health, rather than adetriment to it.Other features of thehearing situationJust as important as the physical space in which theBoard hearing takes place are other dynamics.These dynamics, which include factors such assalutations, developing rapport, the warmth andpoliteness of Board members, the speed of thehearing, whether explanations of terminology areprovided, and whether or not the consumer isrepresented by an advocate or legal representative,have a great impact upon the perceived formalityand inclusiveness of the hearing process. Theseimportant factors are discussed in more detail laterin this Section (See ‘Training of Board Members’and ‘Summary and Discussion’).Order of speakers – often theconsumer speaks lastConsumers reported a tendency for the Board to onlypermit the consumer to speak last – and they reportbeing confused by a process that has not beenexplained in any great detail, if at all. It means thatpeople are not able to present their version of eventsin the most favourable light. People also reportedthat speaking last gave them the impression that theiropinion was not highly valued, appearing more as atoken gesture than a genuine desire to listen.This view may also be heightened by Board memberscutting short presentations by consumers, oftenhushing people or saying ‘you’ll have your turn soon’in a disciplinarian manner. [Researcher Observations].As the Board process is a flexible one, where theorder of proceedings can vary from review to review,there is no reason why a person should not beencouraged to speak first in a proceeding that isabout that person’s own health.. . . Actually I wasn’t asked a lot of questions.They [asked me if] I had anything to say, after thedoctor had spoken after the nurses had spoken.I think my friend spoke [before me] as well. [Then]they said would you like to say anything. I don’tthink I was able to utter anything, I think I justsaid, ‘No, I don’t know what to say’.TF - Consumer“[And] if the personhas any questions askthem at the start as wellnot just at the end. Bythat time all the lingogoes around and aroundand you haven’t reallyunderstood it and youare like have you got anyquestions and you aretotally bamboozled at theend, so of course you aregoing to say no.”CM - Consumer52

Part 3 > The Involuntary Patient ExperienceAttention to the comfortof consumers attendinga Board hearingBoard members need to ensure that peopleappearing are made to feel as comfortable as theycan be during what is often a difficult experience.Consumers were adamant that members shoulddisplay all the qualities of courtesy that they wouldshow in any other social setting.Common courtesy was emphasised by a number ofconsumers who were concerned that the Board’sapproach – considered impersonal and detached -was itself contributing to the discomfort of peopleattending a Board hearing.With or without the framework of therapeuticjurisprudence, basic courtesies ought to be extendedto all consumers by Board members.It is a frightening experience for most people whoare still a bit unwell . . . smile, shake people’s hands,offer a glass of water because they are nervous.BF - ConsumerIt was just the way that he kept saying, “yes, yes,yes, yes,” to me. Sort of interrupting me whenI was speaking. Yes we’ve heard that beforefrom the person who advocated for me. Yet theyasked me to speak.TF - ConsumerThere were few occasions when people appearingwere offered a drink of water. No observationswere made of a person in attendance being offeredmaterials to take notes during the hearing. In manysettings, coffee, tea and biscuits were provided toBoard members but not to other participants inthe hearing.In the introduction the legal chair asked the personhow they wished to be addressed, she said ‘Ms S.’,and the member respected this request throughoutthe hearing. The psychiatrist member, however,immediately upon introduction addressed her by herfirst name, in an abbreviated and endeared form,and continued to do so throughout the hearing.[Researcher Observations].Process too rushedConsumers want the hearing process to beslowed down.It is like fire a question, give your answer, fireanother question, give your answer.BF - ConsumerI thought it was rushed. A very rushed, veryformal meeting, and you are gone in 10 minutes.You don’t feel like you can be yourself. It isactually quite an intimidating process . . .CM - ConsumerThe speed of the hearing and the order of speakersis an issue for many consumers. A fast pace canpreclude comprehension and a sense of involvement.When appearing before the Board, consumers areoften experiencing the side-effects of high doses ofmedication. Undoubtedly, this makes the hearingdifficult to follow. Short adjournments may assistpeople to concentrate.The Board showed impatience with B who had sometrouble speaking and was difficult to understand.[Researcher Observations].I think one of the important things is not to be sopushed for time. Take the time to get to know theperson a bit, on the eve of the teleconference oreven in person. I think they really push straight53

Lacking Insightinto it and they don’t give you time to relax . . .you’re straight into it. That would be a huge thingto consider. Like okay we are very busy today,we are pushed for time, and let’s push this onethrough. That is what you get, that is how youfeel, pushed through, and not making [the hearingappear that way] would be so much better forthe personCM - ConsumerKept waiting . . . and waitingThere are ways that the Board conductshearings that may exacerbate a person’s lack ofcomprehension of the process. An example of thisis when consumers are sometimes kept waiting foran extended period of time as it is standard practiceto schedule a number of hearings at the same timeof day because the Board has no way of telling howlong each hearing will last. Often this procedurehappens without any explanation being given for thesubsequent delay that may occur.Can you remember the actual hearing?I can remember presenting myself at roughlyabout 10 o’clock in the morning of the day ofthe hearing . . . and I can remember sitting inthe waiting room for approximately about 5 or 6hours without any notification as to when I wasgoing to be heard. No discussions about it. Weweren’t able to ascertain information as to whythere was a delay . . . [We couldn’t] even go out,get a cup of coffee or get something to eat.. . . And I found that extremely agitatingexperience. I don’t like sitting around wastingmy time.NM - ConsumerBody language ofBoard membersAs well as displaying traits of common courtesy,consumers emphasise that it is important that Boardmembers make eye contact with them. Eye contactassists to develop trust between people. Making eyecontact is one way of showing that you are listeningto a person as they speak and that you are engagedwith what they are saying; other ways observedby the researchers were nodding and makingencouraging gestures. Active listening is a skill thatrequires patience and time.The combination of little eye contact, the hurried natureof proceedings, and members appearing to have beenwearied by the prior proceedings, tends to give consumersthe impression that their matter is not important.I got the impression, from what I saw in thehearing, that the board was pretty exhausted,they weren’t focused and it was obvious to meby their body language. What I picked up fromthem was that they were starting to slump, theyweren’t sitting up right and attentive . . . theywere pretty exhausted . . .NF - ConsumerAlthough nodding and making encouraging noiseswhilst the consumer was speaking, the Chairpersonwas also speaking to co-members and filling informs. [Researcher Observations].The experience of rural consumersConsumers in rural Victoria express similar concernsabout the Board process to their metropolitancounterparts. However, one aspect that ruralconsumers discuss that appears to differentiate theirexperience is the heavy reliance upon technology inBoard hearings. Of particular concern is the matter ofvideo- and tele-conferencing.54

Part 3 > The Involuntary Patient ExperienceThe problems created by an over-reliance ontechnology are numerous. Consumers speak of afractured and disorientating experience that hasa tendency to exacerbate the symptoms theyare experiencing. Tribunal hearings that rely ontechnology are described as having a tendencyto agitate and increase feelings of isolation. Oneconsumer recounts the experience of a videoconferenceas being akin to ‘make-believe’.Can you describe to me what the hearing roomwas physically like?Well I was on a video conference. So all I sawwas a blank wall behind the three people.You couldn’t see their faces?I could see their faces and their bodies, but all Icould see was a blank wall behind them.. . . It is sort of like looking at them on television.It’s like they’re not real. It’s like they’re makebelieve. . . . At any time they could switch it off.Yes. And they did. They would turn it off after Ihad been asked each question and I would justsee a blank screen.TF - ConsumerThe experience of Koori consumersPromotional material was distributed through clinics,Victorian Aboriginal Legal Service and specialist Koorimental health service and many attempts madeby researchers to speak with Koori consumers;however, there was no response. Two Koori casemanagers were interviewed at the Koori mentalhealth service in Melbourne. They told researchersthat they believed many Koori consumers chose notto attend Board hearings primarily because they didnot question the intervention of psychiatric services intheir lives, most had been in and out of hospital andhad little confidence to speak for themselves. Bothcase managers worked with the service for a periodof years and were known to many of the families;much of their work was to assist the person and thecommunity to understand and accept mental illness.They believed that their role included advocating forthe consumer together with the person’s family andto act as a conduit between the psychiatrist and theconsumer and their family. They expressed the viewthat, if there were issues of dispute, these wereresolved with the psychiatrist who had been with theservice for many years. They were confident that thepsychiatrist had a good working relationship withthem and was respected by consumers and thatmost decisions about treatment and support weremade collaboratively, away from a Board hearing.The experience of consumers fromculturally and linguistically diversebackgroundsConsumers from culturally and linguistically diversebackgrounds interviewed told researchers thatthey had managed to overcome the barriers toparticipation in hearings (and thus were strongenough to participate in the research project).However they were concerned that were theminority and most people would be intimidated andbewildered by the process. They emphasised theimportance of an advocate or support person toassist in the appearance for people unfamiliar withthe way that mental services were delivered and thelegal framework. They believed that people wouldbe intimidated and frightened by the powers of theBoard which would appear to them as a court. Theyemphasised the importance of interpreters, trained inthe person’s dialect and available before the hearing,allowing the consumer to develop rapport with them.55

Lacking InsightEffects on consumers’ livesThe effects on a person’s life of attending a Boardhearing can continue long after the Board hasmade a decision regarding matters of status andtreatment. People tell of a process that has leftthem with a sense of powerlessness that hasaffected the way they view their life.A disempowering effectHow do you think it makes people feel?Powerless. You don’t have a hope in hell. All youcan do is go along with what they say so that youcan get out of the predicament that you’re in assoon as possible.RM - Consumer“[I felt] disempowered,absolutely disempowered,hijacked and totallywilfully misrepresented.”JM - ConsumerYou actually lose control of your own life.WM - ConsumerPeople emphasise that the sense of disempowermentis accentuated by a process that treatspeople more like an object than a person.Well I would describe the process as quiteintimidating and possibly alienating, and youneed to be very strong in your awareness of itto survive it because you may find that you willbe a pawn in some game, you might feel morepowerless than you actually are.GF - ConsumerLasting distress as a resultof a hearingConsumers spoke about the sense of powerlessnessevoked by the Board process. They also spokeabout the effect of a decision by the Board on theirprofessional and personal lives.It was so hard; my children were taken awayfrom me. Identity: my identity as a motherwas destroyed, identity as a professional wasdestroyed. I was living on pasta and cheese, hadno money, lost touch with contacts.GF - ConsumerAnother consumer, this time from rural Victoria,spoke about the distress that the Board hearingcaused her. Her distress was a product of theentire hearing process – before, during and after.It is important that all professionals involved in thehearing inform consumers of important informationregarding their treatment in a sensitive manner.I did not get off the CTO at the 3 month reviewboard, they kept me on it and I remember justbursting into tears in the middle of it and sodid my mum, we both just got really upset .. . After [the hearing] I got handed a sheet bymy case manager with my diagnosis, no-onehad mentioned the diagnosis to me since I hadbeen in hospital . . . it [the sheet of paper] hadon it ‘paranoid schizophrenia’. . . . No-one toldme [before that] they just handed me this bit ofpaper . . . [it was] really confronting and reallyimpersonal and really distressing actually, thewhole thing.LF - Consumer56

Part 3 > The Involuntary Patient ExperienceDue to the distressing nature of Board hearings,consumers speak about the need for all professionalsinvolved in the process to understand the consumer’sneed for ongoing support after the hearing hastaken place.What sort of effect did it have on you?Oh, I thought about it for weeks. It had adetrimental effect on me. I wasn’t able to talkto anybody about it because of the advocate, Inever saw the advocate from the time that sheappeared at the hearing to the next hearing.There was no contact with her apart from aphone call to say what had happened at thehearing. And the clinical therapist that I had, shewas not understanding and I couldn’t talk to herabout it so I really had nobody to discuss it with.TF - ConsumerMaintenance not improvement,of the consumer’s situationIdeally, the effect of a Board hearing will be a beneficialone, where a person gains self-knowledge and learnsabout the services that are available in the community.Unfortunately, this ideal occurs all too infrequently,and consumers tend to view the process as one thatperpetuates, rather than improves their situation.They might give you a book and say ‘Here’s yourrights,’ but you are not going to read it becauseyou are unwell and then basically they say this ishappening and this is how it goes and you get adischarge and there you are out in the communityagain and you don’t get any explanation aboutwhere you can go [to protect] your rights oranything, the conditions are pretty lax on that, itdoesn’t happen. You know there are very shortbrief explanations about why and how and if youhave not read the information, well, that is too bad.CM - ConsumerAs well as raising a number of criticisms of theBoard process, consumers were also keen to offersuggestions about ways in which their experiencecould be improved. Legal representation, increasedinvolvement of community members, secondopinions and Board member training were raised bya number of interviewees.Consumer suggestionsfor improvementProvision of legalrepresentation/advocacyConsumers experience Board hearings as stressfulevents, and because of this they find it extremelydifficult to present their viewpoints in the best light,or sometimes forget to raise important matters.Advocacy, be it in the form of legal representation orhaving someone such as a friend or family member atthe hearing who can speak on their behalf, is highlyvalued by most consumers. Consumers are adamantthat advocacy is a vital way of ensuring that rightsare upheld and the voice of the consumer is heard byBoard members. Advocacy is viewed as an importantway of empowering the consumer and ensuring thatthe Board is held to account.“When a person issilenced by their illnessand by the situation Ithink advocacy is reallyimportant.”TF - Consumer57

Lacking InsightDo you think if you had a lawyer with you infuture hearings that would be different?I wouldn’t feel so powerless.Okay, how do you think they would be able tohelp you?Well I’d be able to be more outspoken. And saywhat I want instead of them telling me what Ihave to have or telling me what I have to do. Likeif the medication I was taking was giving me anallergic reaction . . . I’d tell the solicitor that I don’twant to have that and that I want them to findsomething else to give me that doesn’t have thehorrible side effect. I could tell them how I wantmy treatment and what sort of treatment I’d like.I’d be more outspoken about things or if anythinghappened to me at the hospital I could tell them.DF - ConsumerWhat did it mean for you having a legalrepresentative?Well it meant to me a lot, yes yes, it was a lot,you know um, it brought to my attention the factthat as I mentioned to you that when I did comein to see [my solicitor], she immediately outlinedthe 5 criteria that would have to be met beforeI was placed on a community treatment order. .. It provided me with a little bit of detail abouthow the hearing went, or how the hearing was toproceed and I found that very helpful.NM - ConsumerAnd how would the Board give youproper respect?I reckon if we have decent advocacy, cause youmay [be] getting over the acute phase of yourillness and you may not feel confident . . . but ifyou can have someone who is close to you thatcan advocate and . . . and have already talkedto . . . finding out what sort of things in yourlife you think you can improve and what thingsyou think you can successfully do, set your selfup for a success, a goal, you know so you gowalking every night or you go to counseling oncea fortnight or once a week or whatever it is andyou have talked to them about things that youthink can manage successfully and then they cannegotiate with the Board about things that you cando to do to positively help your, you know recover.BM - ConsumerIncrease the participation bycommunity membersPresently in Victoria each Board is comprised of threemembers: a psychiatrist, a lawyer and a memberof the community. At the moment the role of thecommunity member is seen as problematic by manyconsumers; often the community member is viewedas playing a passive role and not contributing to theoverall process of review.Yeah, actually in not one of my times before theBoard has the community representative spoken.The lawyer has a couple of times, and thepsychiatrist always, but never the community rep.BF - ConsumerThis isn’t to say that consumers can’t see thepotential for the role of the community member tobe one of increased participation and informationprovision. Some consumers note that at times theirappearances before the Board have been markedby particularly helpful community members, whohave been able to suggest courses of action thatconsumers can take to improve their situation inthe community.58

Part 3 > The Involuntary Patient ExperienceConsumers envision the role of the communitymember, then, as one of contextualising the personappearing at the Board – as a member of thecommunity, with diverse interests and needs - andproviding individual specific advice.I believe the community member on the ReviewBoard should have a lot more to say and havea lot more input [such as] advising people aboutrecreational groups and helpful groups andsupport groups in the community, I think that’s afantastic idea.PF - ConsumerAre there ways they could ensure that theindividual feels that they have been listened to?Like I know one fellow who is on the review boardquite often. I can’t think of his name. . . . Healways asks you what you do that you enjoy.He does this so as to get some broader focus,[because] he is a community rep on the reviewboard. ... So that the person can say if they aredoing something with their life that they enjoy, thatit might help them, I mean it is not necessarilygoing to change the illness but it might help themdeal with what they are going through and itmake sense of it and move towards recovery. . .. it gives something to build on so that the personhopefully won’t need the review board in thefuture. I like that approach.NM - ConsumerMany consumers suggested that the communitymember ought to be a person who has a livedexperience of mental illness. The role of thecommunity member then becomes an ongoingeducative one in regard to peers on the Board.Consumers believe that the community member hasa role in teaching the Board about service options.Obtaining a second opinionConsumers were keenly aware of the difficultychallenging their psychiatrist’s evidence and saw thevalue of independent second opinions.It could have been different if I had been allowedto get a second opinion, if I had been allowedto get a psychiatrist to do what I thought wasthe correct psychiatric management, or just sortme out physically. The matter would have beenresolved a lot earlier. I was ill, I will not deny that.I was crazy as a cut snake by the time they tookme out a second time.GF - ConsumerThere should not be a psychiatrist on the ReviewBoard because you’ve got a psychiatrist checkingon a psychiatrist and they’re not going to goagainst one another. They won’t go against oneanother.PM - ConsumerRM was exasperated by the difficulty in getting anindependent assessment:... I’ve tried getting second opinions. No matterhow hard you try, and in all my hearings, I’ve neverhad one psychiatrist go against the other.To challenge the opinion of the treating psychiatrist itis necessary to obtain an independent assessmentfrom an equivalently experienced practitioner.Although the right to a second opinion is wellarticulated in information provided to patients in theMental Health Regulations 1986, Chief PsychiatristGuidelines (2005) a second opinion is immenselydifficult to organise. There are various impediments:• Cost: consumers subject to orders are publicpatients and do not have the ability to pay.59

Lacking InsightThey must find a psychiatrist who bulk bills.Though Medicare will cover the cost of anassessment appointment, doctors cannot billMedicare for writing the report so a grant of aidis essential, or consumers have to cover thatexpense themselves. Information on practitionerswho bulk bill is not known to the public, soconsumers rely upon their networks to trackdown such practitioners.Legal Aid may be available if their merits criteriacan be met for an independent report if theperson has a matter listed before the Board.However, often consumers wish to seek a secondopinion to prevent involuntary treatment.• Lack of availability: there are long waiting listsand an over-demand and under-supply of privatepractitioners who are prepared toprovide assessments.• Bias: an independent assessment does not carryas much weight with the Board as the opinion ofthe treating practitioner. This may be questionablegiven that the treating practitioner may have onlyjust met the patient prior to the hearing. Thecurrent practitioner is perceived by the Boardto be able to provide extensive and intimateknowledge of the person’s mental health - bothcurrent and historic and social circumstances.While the Victorian Board has an inherentpower to order independent opinions and hasbeen known to do so, this is extremely unusual(Delaney, 2003: 79).• Lack of full information: an independentpractitioner rarely has access to the person’s fileand so may not be cognisant of issues that maybe raised at the hearing.The resource implications of more extensive accessto independent second opinions are clear – buttheir value and importance in ensuring that peoplehave a genuine opportunity to challenge involuntarystatus demands investigation of creative options. It isnoteworthy that in the UK a second opinion is availableat the expense of the State for every person detained.Training and review ofBoard membersA review mechanism for the Board is required.Ongoing review of Board members would contributeto the efficacy of the Board. Consumers would havegreater confidence in an institution that is subjectto scrutiny and whose members are required topossess current knowledge about medications,and about the most effective ways of engaging withconsumers whose treatment they are reviewing.What level of confidence do you have that theBoard is upholding the law and protecting therights of involuntary patients?. . . It is putting a fair bit of responsibility on those3 people and yet, just going back . . . how is itgauged, how is the Review Board reviewed?How is it gauged if you have got someone thatalways grills people in a fairly rough way andthen always says this person needs to stayinvoluntary? . . . I don’t know the process, buthow are they assessed to become membersand can their tenure be, can they be told look Iam sorry we don’t think you are doing a goodenough job and how is that judged? They dohave a fair bit of responsibility. How do you, Idon’t know how you ensure and I don’t knowwhat mechanisms there are now. I mentioned ifsomeone is really derelict in their duty they canbe dismissed or whatever. . . . I think there needsto be mechanisms in place to make that happenand I’m not sure what they should be or what60

Part 3 > The Involuntary Patient Experiencethey are at present. But I do think that they needto have some process of review and also ongoingtraining or whatever so that they are continuing todo their jobs. Doing their jobs well.NM - ConsumerThe experience of attending Board hearings meansthat consumers are in an excellent position to makesuggestions regarding the training and performanceof Board members. Consumers are the audienceto whom the Board is attempting to communicate.They are the recipients of decisions, and they (alongwith their advocates) are the only participants notemployed by the DHS.Educating Board members about theconsumer experienceIt is important that Board members are aware ofwhat it’s like to appear before the Board. Consumereducation is an important way of giving membersanother perspective on the process. Listening to, andhearing the views and experiences of those who haveappeared before the Board, may assist membersto conduct proceedings in a way that can be betterunderstood by consumers, and not be a detriment totheir health.I don’t know how much [Board members] hearfrom consumers themselves when they getinducted and trained but they need to hear theconsumer voice very loudly. They need to hearpeople’s experiences of other Mental HealthReview Boards if they are being trained forone. They need to understand the precarioussituation people can be in . . . and they need tounderstand that sometimes people are moreaware of their environment than people give themcredit [for]. A lot of people think because [youare unwell] you are not taking in anything aroundyou . . . you don’t forget and you rememberkindness and you remember the bad things thatare done to you. . . . I think the training for theReview Board people, I think they need to havesome sort of compassion for the person andacute awareness of the circumstances and whatit means if they are going to certify someoneinvoluntary; what does it really mean to them? . . .[And] not to be too judgmental, not to be instantlyjudgmental.TF - ConsumerSummary of consumer viewsIn summary, consumers raise the following issues.Inquisitorial v Adversarial,The Board: a rubber stamp?• Consumers experience the Board hearing as anadversarial forum;• Far from fulfilling its inquisitorial function,consumers told researchers that it is theirexperience that the Board merely confirms theview of treating clinicians;• Consumers experience the Board as havingmade a decision prior to the commencement ofthe hearing;• Consumers experience the Board members asonly seriously investigating and giving weight tothe evidence of the treating team.Access to information• Access to information (in the person’s own casefile and about Board procedures) is a problem.As a consequence, consumers describe asystem that poses problems for the concept ofnatural justice; they do not experience a systemthat presents all parties with an equal opportunityto present their case;61

Lacking Insight• Consumers report not even being aware they canaccess their files;• Consumers report being given inadequate time toaccess their file and to prepare their case;• Consumers request assistance in accessingand understanding the contents of their file andadvocacy or legal support to evaluate the evidence.Consumers’ level of understandingof the review process• Consumers report a lack of information aboutprocesses before, during and after the hearing;• Hearings need to be clearly sign posted andbetter explained. The role of individual membersneeds to be clarified• The consequence of poor information provisionis that consumers appearing before the Boardcannot fully engage in the review process. Afterthe hearing, consumers report feeling confusedabout the criteria that is used to establish thenecessity of the treatment they are receiving,confused about the effect of the order, andunsure about their rights to reasons, to appeal, orto seek a re-hearing;• Few consumers request a Statement of Reasonsfor the Board’s decision and many are unawarethat they are entitled to do so.Rituals of the Board• Certain rituals of the Board−− weigh the evidence of clinicians above thatof consumers;−− make the consumer feel intimidated andundervalued as a participant;−− make consumers feel as though they arebeing judged;−− distance the Board from the consumer;−− discourage the person appearing fromparticipating in a way that allows the full tellingof his or her storyThe experience ofrural consumers• Consumers in rural areas are especiallydisadvantaged by the extensive use ofteleconferencing technology in their Boardhearings. The use of this technology is oftenhighly inappropriate for consumers whoexperience auditory or visual hallucinations.The experience ofKoori consumers• The researchers endeavoured to interview Kooriconsumers. However, there was no response to thepromotional material from people who wanted tobe interviewed for the project. However, Koori casemanagers from the Northcote Aboriginal MentalHealth Service were pleased to be interviewed. Theyinformed the researchers that, in their experience,their clients attended hearings accompanied bycase managers, although they did not object toinvoluntary treatment and did not see the Board asa venue for challenging that treatment.The experience of consumersfrom culturally and linguisticallydiverse backgrounds• Consumers reported some difficulties inaccessing interpreters to assist them with thepreparation of their case. Interpreters bookedfor a hearing are required to translate reportsjust prior to the commencement of the hearingThis does not allow the person adequate time toprepare submissions and seek further evidenceor a second opinion.62

Part 3 > The Involuntary Patient Experience• Consumers are disadvantaged if interpreters arebooked only for a limited period and the timeexpires before the hearing is completed.Effects on consumers’ lives• Consumers describe their Board experiences asdisempowering and distressing. This experiencecontinues after the hearing, having a negativeimpact upon the way the way they view their life.Legal representation• Legal representation before the Board is highlyvalued by consumers many of whom toldresearchers that without representation they haveno chance of discharge. Having representationensures that all appropriate factual matters areraised, and proper procedures are followed.It also takes the pressure off the consumer topresent the case whilst he or she may be underthe effects of medication.Increased role forcommunity members• The role of the community member is viewed byconsumers as ineffective. Greater clarificationof the role is needed. Consumers want moreinput from the community member during thereview process and see that role as havinggreat potential to improve the hearing process.Consumers view the community member asa potential ally. They see great potential forcommunity members providing the Boardwith knowledge of less restrictive options toinvoluntary treatment. Consumers believe thatthe role would be enhanced by the appointmentof community members who have experiencedmental illness, in particular of people who havethemselves experienced involuntary treatment.Second opinions• Consumers report great difficulty obtainingsecond opinions. Without a second opinion,consumers experience reluctance on the part ofthe Board to accept any view other than that ofthe clinician. They also query whether cliniciansare brave enough to contradict previous clinicalopinions expressed in the file, without the supportof a second opinion.Training of Board members• Board members must be aware of theconsumer’s perspective; they must have currentknowledge of mental health services andcommunity supports to assist them to apply theleast restrictive alternative. It is crucial that theseattributes are demonstrated by all applicantsto Board positions and that applicants alsodemonstrate an ongoing commitment to keepingabreast of the community service developmentsand treatment options.• Ongoing training is essential to ensure that Boardmembers are aware of current treatment options.Continuing Professional Development should be arequirement of any appointment.• Ongoing training includes the conduct ofhearings with an emphasis on active listening andeliciting information in a dignified, respectful way.Evidence from clinicians and consumers must beequally weighted.• Ongoing training is essential to assist the Boardwith the conduct of the hearing to ensure clarityof purpose and procedure.63

4 > The Views of the StakeholdersThere is a diverse range of opinions held bystakeholders about the efficacy of the Board’sprocesses. Similar to the previous section of this report,this section aims to allow the opinions of stakeholders –be they critical or not – to speak for themselves.Inquisitorial v AdversarialIs the Board performing itsinquisitorial role?There is a wide range of stakeholder opinion onthe subject of whether or not the Board properlyundertakes its role as an inquisitorial tribunal. Somesay the very strength of the Board is its inquisitorialform, which they believe results in its duties beingcarried out with a satisfactory level of rigour.I think it is a strength . . . that it is an inquisitorialmodel and not an adversarial model and I thinkthat is very important, particularly where youhave got a low level of representation, particularlywhere you have got people who are vulnerable ina lots of ways and maybe not able to understandthe content of the material that is put, not able toformulate questions, not able to push and test Ithink it is vital that it be inquisitorial.Former Mental Health Review BoardPresident and Former Public AdvocateOther stakeholders view the constitution of theBoard, with its three members from different fields ofexpertise – namely law, psychiatry and community –as a strength, one which permits a comprehensiveassessment of the consumer’s status as aninvoluntary patient.I think the Board’s strength is being anindependent body coming from outside theservice. The other strength is the constitution ofthe Board - having a lawyer or a legal memberchairing the Board, having a lay person on theBoard giving the opportunity [for the consumer] tosee people other than psychiatrists, and there arealso independent psychiatrists on the Board . . .Senior PsychiatristInterestingly, in a seemingly contradictory statement,this same stakeholder goes on to suggest that oneof the key roles of the Board is to offer reassuranceto the consumer about the treatment they arereceiving. There is a distinct difference betweenbeing told that your treating clinician is correct andhaving the clinician prove the validity of his or herdiagnosis and treatment regime.Obviously the [treating] psychiatrist is wanting totell the fact of the mental health and symptomsof mental health . . . to be able to assess whetherthere is a mental illness or not. In that, all ofthe psychiatrists could also be reassuring andsupportive to the person. That is why there isanother psychiatrist listening to him or her in theinterview [Board hearing]. So it is a therapeuticrole in that, it is like a second opinion-type role.It is a very short second opinion but it has thatpurpose of reassuring the person about thesituation itself and what is happening to him or her.Senior PsychiatristOther stakeholders are deeply concerned aboutthe level of the Board’s inquiry. This concern isdirected particularly to the psychiatrist member. Anumber of advocates expressed concerns that thepsychiatrist member does not ask enough questionsof the treating clinician, given that insufficient medicalreports are, at times, presented to the Board.64

One of the issues that I constantly have inhearings is I feel that they haven’t done justiceto the hearing. I mean a hearing’s meant to beinquisitorial, so they’re meant to ask questionsand make inquiries and the number of timesthat no questions are posed to the doctor in thehearing! … You have a psychiatrist who sits onthe Board who’s meant to be a medical expert. . . And the evidence that’s before the Board iswhat the [treating] doctor says, and a medicalreport, which is often really brief and reallypoor. So you would think that there would besome level of inquiry that should be undertakenin hearings to make sure that the diagnosis isjustified, that the treatment is justified, you know,all of those things are really important and it’snever – you don’t see that really thorough level ofinquiry happen at Board hearings.Legal RepresentativeI think the level of inquiry, just the level ofinquisitorialness, in terms of doctors justifyingthe diagnosis, justifying the treatment, justifyingtheir conclusion that they will deteriorate. Thosethings are just not explored on any level andas an advocate you can raise them as issues,[but] you’re not a medical expert, and it is theresponsibility of the medical expert on the Boardto take that up. But you don’t see that, you seethem kind of going through the motions becausethey have to. And I think that makes a differencein terms of how clients see the hearings as well.If they know that the doctor’s been asked asmany questions as they have, maybe they’ll thinkthey got a fairer hearing.Legal RepresentativeThe Board: a Rubber Stamp?The question of professionalcourtesyThe issue of professional courtesy, whether or notclinicians on the Board are reluctant to challengethe judgment of treating clinicians, is an issue thatconcerns consumers. Stakeholders are, to a certainextent, also concerned that clinicians sometimes givethe appearance of being reluctant to undermine theauthority of their peers.No I think we should have a psychiatrist sittingall the time. I don’t think they’re so dominantin terms of the decision-making process or thedynamics as you might fear. I think they often feela bit out on the edge because . . . if there’s goingto be a split, it’s more likely to be lawyer andcommunity person against the psychiatrist. So Ithink they play a really important role. Sometimesthe problem is that I don’t think they shed theircollegiality as readily as perhaps they should,sometimes, and they are more prepared to divertcolleagues than is ideal.Board Member (Legal)However, despite this, stakeholders are of the viewthat the problem of professional courtesy is to a largeextent balanced out by the questioning of legal andcommunity members.. . . for the most part I think psychiatrists are loathto overturn their colleagues’ decisions, I thinkthat is a phenomenon, but I think the lawyers andthe community members don’t feel that sameimperative, so there’s a balancing out of whatwould otherwise be an inclination to show overmuchdeference to clinician decision-making.Board Member (Legal)65

Lacking InsightIn addition to this, the role of the psychiatrist memberis held to be one of great value if the psychiatrist isproperly fulfilling that role.It’s often the psychiatrist who enables the moreeffective challenging of the psychiatric authority.As long as they’re playing that role properly andindependently it’s really good, because oftenenough I’ll be saying, ‘Oh look I just don’t likethe look of that, it’s not making sense to me’and if the psychiatrist comes in and says ‘wellthere’s good reason for that, it’s rubbish’, it’s veryfortifying. On other occasions the psychiatrist willinformedly say ‘Look, you might think that, butthis is a really common sort of presentation in thiskind of situation’.Board Member (Legal)A pre-determined decision?In response to concern that it is the contents of theindividual’s medical file that determines the outcomeof the hearing, Board members suggest that whilstthis piece of information is indeed important, otherinformation plays a greater part in their determination.So the main evidence is the report and the file andother evidence is even more important, what thepeople have to say, especially the patient and anyonewho is with the patient, like the patient’s advocate.Board Member (Community)Of course, this in itself raises a number of issues thatwill be dealt with later, namely whether consumersare presented with an appropriate opportunity tospeak at hearings, as well as the rate of advocacybefore the Board.Access to InformationFrom the stakeholder perspective, the issue ofaccess to information can be improved by providingconsumers with more time to read their file andproviding assistance before they do so.Time needed for a consumer toread the fileThe President of the Board told the researchersthat access granted to a person’s file ought to bedetermined on a case-by-case basis, and that someindividuals would benefit from having more time toprepare. He expressed the view that access mayneed to be restricted for the benefit of the person’shealth, as access to the file may cause more distressthan denying access to the file’s contents. Is this,then, an issue of procedural fairness, where oneparty to the proceeding has access to more of thematerial in question than another party?The President of the Board further stated that, inthis jurisdiction, experience has shown that this isnot an issue of note. He concluded that one reasonfor this was that, historically, individuals have beendisempowered by the actions of service providersto such an extent that they are unaware that theyare entitled to see their own file. This leads to theconclusion that access to information is only aproblem if a person knows there is a problem.What access do you think they should have totheir case information? The right to inspectdocuments, case file, doctors’ reports, that sortof thing.I think the Act sets up a general proposition ofup to 24 hours but I think in practice it should beas much as is needed for the individual’s case. Ithink the reality is again that some people like tothoroughly review those things, others couldn’t66

Part 4 > The Views of the Stakeholderscare less to see their files. That seems to bereflected by what I hear when I talk to peopleabout it. But the fact that that’s true doesn’tmake the rule right or wrong. I think the rule hasto apply.I think in the area of all health and certainly inthe area of mental health it’s fraught with somedifficulties because the files you know, containlots of information which is in a sense third handand historical and, you know, revisited historicalfiles are tricky and they’re problematic and so Idon’t know if there’s a right or wrong answer.I mean there’s certainly some incongruitybetween the strict rules of procedural fairnessthat involve having access to the sameinformation as the decision maker has andwhat are the normal bounds of doctor / patientor provider / patient sort of processes. I don’tthink they are often a big issue and the Act doesallow for them anyway. I know that they’re notsomething we deal with regularly to be honestwhich probably reflects that it’s only occasionallya real problem.But I think certainly in terms of the attitude ofservice providers that’s slowly changing but it’sbeen a long hard road. They see it, they seefiles very differently to . . . a rights lawyer andprobably most patients see them. The truth isthat I think historically patients haven’t really hadmuch opportunity [to view their files] . . . I wouldsuggest so it is most probably more of problemfor the lawyer.Board PresidentConsumers require more assistancebefore reading their fileA Senior Psychiatrist told the researchers that theway the report is presently conveyed to the consumermay be distressing – it was suggested that before thefile is read, clinicians need to discuss the contentswith the consumer. This is a matter of providingbetter access to information by contextualizing thecontents prior to their being read, thus causing lessdistress to the person whose file it is.The hearing itself can be therapeutic to somepatients but unfortunately for a lot of othersit is not and some find it a very traumatizingexperience, some find it a very unpleasantexperience . . . Part of the documentation ofappearing before the Board is the documentationprepared by the medical staff regarding thereason for detention or applying the involuntarystatus. That document is supposed to be givento the patients two hours before the Boardhearing, the problem is that that documentcontains all the materials [about why cliniciansview involuntary treatment as necessary].Obviously the problem is time and how busypeople are and all these sorts of things and inreality you end up having that document presentedto the person just an hour before they arrive. Ithink that the information in this document needsto clearly be discussed with the patient . . . Themedical board can be part of the treatmentplan rather than against it. So that all patientsget the benefit of that rather than it becoming atraumatising experience to the patients.Senior Psychiatrist67

Lacking InsightConsumers’ Level of Understandingof the Review ProcessPreparation for the hearingIt is generally held to be the case by stakeholdersthat consumers need to be better prepared for theirBoard hearing. There are a number of improvementsthat can be made in regard to the provision ofinformation and the types of information given toconsumers prior to a hearing.Some stakeholders did not suggest advocacy as away of ensuring a fair process in terms of preparationfor a hearing; however, others believed that anadvocate would invariably be advisable.[I believe that hearings could be improved byhaving]… a booklet given to patients about therole of hearings and what is expected of themin very simple language. There should be avideo produced that actually shows the patientswhat they should expect from a hearing. I thinkpatients who are due to appear before the Boardshould be taken to the room where the Boardwill come and just have instructions as to wherethey will sit. I think that the document writtenabout patients should be given to the patientsand the staff long in advance of the hearing. Thisis an important thing. I think patient’s relativesshould have enough warning about Boardhearings and that people are not notified an hourbefore or the day before. The Board shouldorganise themselves and should be available. Ithink that the session itself needs to be muchmore therapeutic and reassuring to patients andhave some values coming out of it to show thepatients, apart from just simply saying where theywill stay. It should be much more than that.Senior PsychiatristStakeholders told researchers that the level ofconsumer understanding of the review process hasbeen inhibited by the explanatory information that hasbeen supplied by a number of sources. Stakeholdersbelieve that consumer comprehension of materialexplaining the Board process may improve if theexplanation is more succinct.I think there is a lot of information around but I’mnot always convinced the information is in theforms that are best for people.Where I have concerns, if that’s the rightword, is . . . that we’ve got out a lot of writteninformation, the Department puts out a lot ofwritten information, the Legal Centre’s put outinformation, I mean there is plenty of informationaround, but whenever I talk to groups andwhenever I talk to services I mean the level ofknowledge is not always as good as what youwould expect given that level of information.So one of the issues, obviously, is about thedigestible forms of information that are right forpeople at particular points in time. Some of that’srelated to the nature of people with a mentalillness at different stages of their illness, some ofit’s related to the sorts of people that are involvedin this jurisdiction; and some of it’s simply relatedto the nature of the information we’re trying toput across. So I guess what I’m saying with myconcern is that I’m always trying to find ways ofgiving information successfully and I don’t thinkwe’ve come to the 100% point on that, we’vecertainly done better I think in recent times thanwe perhaps did in the past.Board President68

Part 4 > The Views of the StakeholdersAt the hearing – introductionsand explanationsHow, then, do stakeholders believe a Board hearingought to be conducted so as to improve consumerunderstanding of the process?The important elements [of any hearing] arethe introductory welcome, the explaining of thepurpose, [ensuring] the person has actually seenthe medical report, had access to their files.Board Member (Community)“I think that the patientneeds to be made tofeel that this is theirhearing, that they arethe centre and what theyhave to say is extremelyimportant.”Board Member (Community)What information is necessary and how should thisinformation be conveyed? For some Board membersit is essential that consumers be informed about theindependent nature of the review process. Conveyingthis information may mean that some consumers feelmore comfortable about talking about their treatmentand their circumstances in general.[As to the public’s perception of the Board’sindependence or otherwise] I think even incommunications from the Board it probablyneeds to be highlighted, emphasised more thatthe Board’s not part of the clinic, the hospital,whatever. I think it’s got to really come out with aflashing light in written brochure type things andin the initial communications from the Board andit needs to be said every time at the start of everyhearing, and I gather it’s variable in terms of Chairsemphasising that to people. Actually I don’t thinkI did say it every time, I’ve taken to in more recenttimes, of making sure that people know that we’renot part of the place we are attending.Board Member (Legal)For other members, it is more a matter of ensuringthat the information that is provided is conveyed inthe simplest manner possible.You need to keep it very simple, it is about shortsentences. It is about not a lot of explanation aboutthe law, it’s about being clear about who we are,what our role is, what the role of the Board is andgathering the evidence in that total way, so thatit does not get on a train and the train carries theinformation away, the person is left beside or behind.So it is making sure that the person is given everyopportunity . . . to be involved in the process.What I often ask people is have they been beforethe Board before? Some say, “Yes, two or threeyears ago.” I say, “This is the way I like to do it - Iam a legal member, I chair what happens today.This is what I like to happen.” And it dependson the patient, sometimes I talk about the law interms of the Chair, rarely do I say what the five[criteria for being made an involuntary patient]are - that is not helpful . . . [I would explain] whatthe hearing is about, and about treatment options[open to the Board] . . . and that is as muchsome can accommodate. You need to maximisethe opportunity for people to participate or beinvolved [and] that can be by talking a lot or not69

Lacking Insightvery much, because they can also be involved[by] listening. It is about being attuned to thosesorts of things.Board Member (Legal)This need to maximise the opportunity for peopleto participate may, however, be undermined by theway some Board members act in a hearing. A legaladvocate describes one way in which the processof the Board undermines both the consumer’sunderstanding of the hearing and the ability to makea meaningful contribution to a hearing that is aboutthat person’s own life.I’ve actually had Boards say to me it’s our practiceto hear from the psychiatrist and ask somequestions and at the end if you wish to make anysubmissions you’ll have your opportunity then.And they don’t like you even assisting the clientwith so much as understanding a question forexample or referring to something that you mayhave explained to them during the course of theinterview before the hearing. They get really upset.Because I almost get this feeling that there’s somesort of idea that we lawyers are there to trick theBoard and to somehow tell this psychiatric patientwhat they need to say in order to look sane andthe Board will somehow be tricked into making thewrong decision.Legal RepresentativeAnd after a decision has been reached by the Board,how should it be conveyed to the consumer?When I know they will be very disappointed withthe outcome, it is about engaging the personand ensuring that they understand the decisionwe have reached. It is about encapsulating allthe evidence we have heard, what we havethought about, what was on the file, what thesubmissions were if the person was representedand, coming to the decision, [explaining] why wecame to that decision. I do think it works to givepositive feedback . . . while giving a decision:that the person has come a long way since theyfirst came into hospital and, particularly wherethey are getting good care, that the doctor hasperformed well in the hearing, the doctor has saidthese sorts of things, I hope they will happen,wish you well . . . those sorts of things . . . [canbe said to], surround the disappointment . . .Board Member (Legal)Rituals of a HearingUse of SpaceOne of the most talked about aspects of the hearingin terms of ritual is the issue of seating: who sitswhere and what effect this seating arrangement hason the hearing. Advocates are concerned that theconfiguration of the room may preclude conversationbetween the different parties, and thus impede the freeflow of information essential to a tribunal process.I actually almost think that the way that it’s [theroom] even just set up. So we all sit on oneside of the table, they all sit on the other side.The doctor doesn’t talk to the client, the doctortalks to the Board members. The lawyer talksto the Board members. The client talks to theBoard members. So there’s no actual interactionbetween the doctor and the client. Or thelawyer and the client. And I think that makes adifference. I don’t know if even just a round tablewould make a difference as opposed to how it’sset up. In terms of ritual, I think that thing aboutthe psychiatrist member and community memberalso interacting with the client is quite important.Legal Representative70

Part 4 > The Views of the StakeholdersThe layout of the room, including the seatingarrangements, can signal formality.I think the Board should have a table, and behindthe table it is important for the patients to see thatit is a formal process. On the other hand, it shouldnot be formal to the extent that you have the courttype formalities of things, it should be a muchfriendlier and much more relaxed atmosphere.Senior PsychiatristAppropriate level of formalityThe necessary level of formality at Board hearingsis an issue that continues to vex stakeholders.Typically, stakeholders find themselves torn betweenwanting the Board to be taken seriously by those inattendance, but not to such an extent that they areintimidated by its procedures. The questions to theBoard are, “Does the Board want to awe individualsor make them feel comfortable?” and, “For whosebenefit are the trappings of formality – the rituals, thesetting - that typify the hearing process?”One Senior Psychiatrist believes that the levelof formality at a Board hearing ought to besomewhere between that which one finds in acourt of law and a relaxed conversation.…the hearing should be as friendly as possible,should be as less formal as possible, so thatthe patients don’t feel threatened. On the otherhand, [the hearing] should have the proper sortof power attached to it. I think the balance shouldbe less formal than a court hearing definitely…it should have some form of formality but betterthan just having a chat, because that takesaway the power of it, in the patient’s minds andrelative’s mind.Senior PsychiatristMany stakeholders believe that a degree of formality isnecessary – even if that level is difficult to define. Whilstit is often stated that the level of formality is for thebenefit of the individual, it also appears that the levelof formality is for the benefit of the Board members;stakeholders say that they feel more comfortable witha table in between them and the individual.[It] . . . is a really vexed issue [as to what levelof formality Board hearing should have. It’sone]…that I’m wrestling with, especially over thelast couple of years. There are two sides of it, Iguess, and I have a slightly dichotomous view ofit to be honest. I think the process needs somesort of formality about it. I think there is a level ofrespect for process given that the decision that’sbeing made is a very serious decision in terms ofsomeone’s livelihood over a period. I think thatrequires a certain framework about it that needssome formality. I think for people who aren’t usedto formal processes that can be bad thing but Ithink also their capacity to understand that it isimportant and that the decision is important youneed that framework to make that work. By thesame token I think it has to always be a processwhich respects people and allows people tohave their say in the way they want to and soon. So it has to be a very flexible process evenwithin that formality. I think the Board, as muchas many legal processes has difficulty dealingwith that, part of the reason for that is becausewe sit in venues over which we have no control. . . We could sit in circumstances which areyou know, quite formal in say a boardroom, orit can be in a kitchen basically or a little office orsomething like that. And that obviously, thosephysical environments change the dynamic ofhow the formality will work. I have a sense that inmany ways when we sit as single members we71

Lacking Insightactually have in some respects better processthan when we sit as a full board and I say thatin this way, I think that the full board is by far thebetter option, because I’m a great believer in themulti-disciplinary approach. I think in somethinglike mental health it’s vitally important. So thatI’m not for a moment suggesting that we oughtnot to have three member boards but I think interms of process some patients feel much morecomfortable with one person perhaps sittingaround not even a table in a very informal waythan they do across a table with three peoplefacing them and so on. So that’s where thedichotomy comes. I know from my own practicethat whilst some of my fellow members aren’t sokeen on sitting as single members I actually feeloften quite comfortable about it. That’s not to saythat sometimes I feel very uncomfortable too, itcan work both ways but I think in terms of tryingto have formality, I think formality is somethingwhich is needed on a certain level for frameworkreasons but beyond that it should be a veryflexible process which very much encouragespeople to be participating in the hearing process.That’s got a lot more to do with how good themembers are in terms of running the processthan it does about the process itself.Board PresidentIt’s not just what you say – or whenyou say it – but how you say itThe importance of allowing the consumer to speakfirst at the hearing is not lost on some BoardMembers. Many consumers spoke of a feeling ofbecoming lost during the hearing, of having difficultyfollowing proceedings and being able to clearly puttheir case forward when the time came for themto speak. A number of stakeholders stress theimportance of letting the consumer know that thehearing belongs to the consumer by encouraginghim/her to speak first.Once the chairperson has gone through thebasic explanations about why we are here, [that]we are independent from the hospital, [and that]we come from outside [the hospital] and try toexplain in simple terms what we do. I think it isvery important to [ask] the patient, “What do youthink about being on the order?,” “What has itbeen like in hospital?” or “How do you feel aboutthe CTO?” - I think it is very important to openthe hearing with those kinds of questions so thatthe patient can tell us where he is at, how hefeels about it, how things are going for him andthen the questioning develops from that. Somechairpersons will say to the patient, “Would youlike to go first?” or “Do you want the doctor to gofirst?”, which I think is a mistake myself becausethe majority say, “Let the doctor go first,” ’cause itis a bit intimidating.Board Member (Community)As well as encouraging consumers to speak first it isalso vital for the sake of inclusiveness to engage withthe consumer. A number of stakeholders describe analarming tendency of some clinicians to read aloudfrom the consumer’s file as though the consumer isn’tthere in person but, rather, in the details of the file. Thisconduct has led some Board members to questionwhether some doctors have any understanding of theperson other than as a set of symptoms.The doctor just reads out the report! We can allread! It distances the doctor from the patient. Itmakes the hearing really difficult because at theBoard you don’t want them just to read theirreport, it makes you wonder whether they reallyknow their patient and have engaged the patient,72

Part 4 > The Views of the Stakeholdersbecause they don’t talk to the patient as a humanbeing. “The patient is a 23 year old . . .” We haveread the report! It makes me very uncomfortableat the hearing because the patient is there.The patient is just someone. It makes it reallyunhuman and it is very uncomfortable becauseyou can’t ask the doctor a lot.Board Member (Community)Kept waiting . ... and waitingThe scheduling of hearings and excessive delaywere of concern to advocates as well as consumers.Presently, hearings at a particular venue on aparticular day are all scheduled at the same time.This may mean that consumers wait several hoursbefore their matter is heard. This delay may causea great deal of stress for the consumer, includingimpacting upon the consumer’s ability to then followthe proceedings once they finally begin.In addition, in rural Victoria, individuals may have totravel long distances to get to Board hearings. Anydelays can have a direct impact on other aspects oftheir lives; for example, affecting their return to work thatday or in collecting children from childcare or school.Another thing I just want to mention quickly,in the case of our hearings set down here inWarrnambool the Board’s not able to give, wellit is able, but it’s not prepared to give, a specifictime or timeframe for the commencement ofhearings and they say that’s because it’s verydifficult to do that because they don’t knowhow long each hearing is going to take and Iappreciate that, but perhaps they could allow agenerous amount of notional time for a hearingand if the hearing finishes earlier well everyonegets a break, the Board members get a break orgo off and do some other work.If it goes later well it obviously sets the other timesback, but at least you’d have a ball park time whenyour hearing was going to be conducted rather thanbeing told as you are at the moment that hearingscommence at 10.00 o’clock and if you’re lucky theadministrative staff at the hospital will tell you that‘at the moment you’re third or fourth on the list orfifteenth on the list’ and you’ve got little idea howlong you might have to wait before your hearing andthat can be very inconvenient and it can also createquite a bit of anxiety and stress. So I think there’sa technical point there in the administration of thehearings that they should try and address as well.Legal RepresentativeBody language and demeanourThe importance of a person’s demeanour cannot beoveremphasised. Advocates recount experiencesbefore the Board where the body language ofmembers has caused them a degree of frustration.These feelings have led them to wonder what impactsuch behaviour has on the way the review is beingperceived by their clients.. . . it’s not uncommon to see a psychiatrist – tosee any member on the Board - kind of sigh aftera while, or look kind of impatient or irritated whena client is perceived to have gone on too long ingiving their evidence.I had one Board member who fell asleep in ahearing, and then went to the toilet when theywere making the decision. Or you’re doing yourcross-examination and they let out a big sigh androll their eyes. Or the psychiatrist member looksat the doctor and rolls their eyes. It’s those littlethings that make such a difference in hearingsand that really just infuriate me.Legal Representative73

Lacking InsightI think there’s been one psychiatrist that I’vefound to be reasonable, all the rest of them, youknow, the way they sit, the way they sort of leanback like this, you know . . . and then when theyspeak to the client leaning forward, “Reeeeeeally,tell me about that”.Yes, patronising and condescending.Yes, it’s just awful. Just awful.Legal RepresentativeFinalising the hearingThe end of the hearing is an opportunity for theBoard to clarify and conceptualise the events thathave taken place during the hearing and to preparethe way for the consumer to successfully engagewith treatment or to resume a life free of treatmentconstraints. It is disappointing, then, that somestakeholders speak of abrupt endings to hearingsthat offer little encouragement for the future.And at the end of a hearing it’s quite a sort ofabrupt end. It’s, “This is our decision. Here’s yourpiece of paper to take away.” Some members arebetter at handling that and can say, “These are thethings we can discuss now and [that you can] takeaway with you.” And some members are not asgood as handling that [aspect of the hearing].What happens if someone gets off an order? Isthat handled better?No. When people are discharged it usually endswith a lecture about if they don’t follow theirtreatment, or if they don’t continue to engage,it’s just going to have these dire consequences.So there is usually a lecture after someone isdischarged, rather than a “Congratulations! Youdeserve it.” I don’t think I’ve heard any memberever say that.Legal RepresentativeThe experience of rural consumersComplementing the concerns that some ruralconsumers have about the reliance uponteleconferencing technology for hearings outside themetropolitan area, a number of stakeholders alsodecry the Board’s reliance on cheap alternatives toface-to-face hearings.They’re hopeless. Teleconferencing hearings arenot the way we should be doing this stuff, I’mafraid. I don’t think it’s very welcoming . . . [but]it’s efficient and cheap to do it that way . . . youdon’t get a feel for people. There’s a delay andit’s artificial.And they don’t get a feel for you either.Not at all.Board Member (Legal)Some stakeholders expressed concern that reviewsconducted in this manner may exacerbate theperson’s symptoms.. . . the way the hearings are conducted in ourregion and no doubt in other rural regions . .. they’re conducted by video conference andsometimes they’re a three way video link, sowe might have the patient in Portland and theclinical therapist in Portland, the psychiatrist andmyself might be in Warrnambool and the Boardmembers will be sitting in Melbourne.Now there are sometimes some technicaldifficulties with the technology which can be veryfrustrating and can result in delays but the otherpoint is . . . it’s certainly not as desirable in myview as having a face-to-face hearing whereeveryone’s in the same room. I think there wouldbe a lot of advantages for both the Board andthe patient if face-to-face hearings were the74

Part 4 > The Views of the Stakeholdersnorm rather than video conferencing. It also canbe quite strange and unnerving for the patientto have a hearing under those circumstancesor a video conference and . . . in some caseswe are speaking about people who are stillquite symptomatic, quite ill. [These are] peoplewho may have had experiences as part of theirpsychosis with voices coming from televisionor radio.So this medium poses particular challenges?Yes, I think that can be particularly problematicfor people in that situation. The whole thing isjust a bit alienating and strange I think particularlyfor patients, but also for advocates, particularly ifthey’re not experienced with that sort of medium.Legal RepresentativeClearly the practice of utilizing technology is notthe preferred method of conducting hearings formany stakeholders. This situation is not assisted bythe provision of an inadequate explanation of thetechnology. The reflections of a carer confirm thedifficulties of interacting with unfamiliar technology.What was that like?Well I wasn’t sure whether they [the Board] couldsee us. I thought that they must be able to see usbut I would’ve preferred personal contact. I couldn’ttell whether they were actually noticing anything.CarerThe experience of Koori consumersStakeholders did not specifically raise issues aboutthe participation of Koori consumers. The issuesraised by the Koori mental health workers arediscussed in the consumer section of the report.The experience of consumersfrom culturally and linguisticallydiverse backgroundsA concern most frequently articulated by bothconsumers and stakeholders involved the use ofinterpreters. The Board is dependent on interpretersto use appropriate language, and to be sensitive tothe stigma of mental illness that may exist within theconsumer’s culture. Advocates told researchers thatthese consumers are disadvantaged in preparingtheir case as reports are seldom translated prior tothe hearing and only made available on the day of thehearing when an interpreter is present to read it tothem - immediately prior to the hearing. Sometimesreports are given to the consumer by the clinic priorto a hearing so that they can get a family memberor friend to translate the contents. The services failto provide these consumers with the same privacyprotections and natural justice considerationsprovided to other consumers. Advocates and Boardmembers are unable to ensure that these consumersreceive all the information necessary both before andafter a hearing. One advocate reported attendinga hearing which started late, the interpreter wasonly booked for one hour and had to leave half waythrough the hearing. The hearing was completedwithout an interpreter.Effects on consumers’ livesWe have already seen that, for some people,attending a hearing before the Board can be adisempowering event that has lasting effects. Anumber of stakeholders are also troubled about theongoing impact that Board appearances have on aperson’s life.75

Lacking InsightOne carer, the mother of a man in his early thirties,speaks about the frustration of having to watch theadverse reactions that her son has to prescribedmedication, and the sense of hopelessness withwhich he greets his circumstances.[My son’s way of thinking at this stage is] tocomply with everything because he doesn’t wantit to be worse. In the past they’ve given himdepot injections because he’s not been happywith the treatment so they’ve forced it on himand he’s had bad reactions from the injections.Of which we were told that when he was firstadmitted that they’d gone back through the filesand they didn’t find anything about reactions tohis medication. The private psychiatrist said that’snot possible because he was on heavy-dutymedication and I saw what happened to him. Hehad massive nose bleeds, he passed out, he splithis head open, his spine was twisted, he couldn’twalk he had to crawl. You know he really had alot of side effects and yet they told me there wasnothing recorded on the file and already he’s onthe full throttle of medications and he’s only beenin there ten weeks. I’m noting . . . the side effects.Because of the dreadful side effects before,he’s quite scared of getting to a point wherethey might do that again. So he’s complying. Hefeels he is damned if he does and damned if hedoesn’t. And I feel the same way.CarerA matter of desensitisation?What are some of the reasons for a hearing havingan ongoing negative impact on a person’s life? OneBoard member suggests that a hearing may beparticularly unsuccessful if the members who hearthe matter have become desensitised to the effectsof their decisions. The Board member believes thatafter a certain length of time on the Board matters ofprocedure can begin to take priority over the needsof the individual.One of the unusual characteristics of the Board- and I’m not sure it’s necessarily a good one - isthat people, a cross-section, have spent a longtime on this Board. There are many members ofthis Board who have been there for more than 10years and I’m not sure that’s that healthy for themactually because it does lead to a loss of vocationand a desensitisation. You start to lose yourresponsiveness to things and however technicallygood they are, and competent and so on, I thinkthe edge comes off people after 6 years, andwhen you’re looking at a significant number ofpeople who’ve been there between 10 and 15who are in positions where others tend to deferto them, I think that generates the kind of culturewhich can detract from appreciation of the realityof the awfulness of being detained. A lot of timepeople sometimes lose that awareness and that’sbad. As soon as you lose that I think you shouldbe gone, because it’s such a heavy decision tokeep someone where they don’t want to be orto make them turn up for injections that haveadverse effects on them and which make themdopey and interfere with their lives and stigmatisethem and everything. It’s a really, really majorencroachment on people’s lives and I think theimmediacy and reality of that is perhaps not aspresent for a lot people whereas maybe it needsto be. It should be there all the time.Board Member (Legal)76

Part 4 > The Views of the StakeholdersThe focus of the proceedings onconsumer responsibilityA number of advocates believe that the way the reviewprocess is conducted – with its focus on the consumerrather than on the treatment team – may have theeffect of making consumers feel as though they arebeing blamed or are responsible for the circumstancesin which they find themselves. Advocates reportedthat an element of browbeating occurs during somehearings, where people are presented with a particular(often negative) version of themselves that they areencouraged to confirm. The end result of this type ofengagement is that people may walk away from thehearing feeling much worse about themselves thanbefore they went in. Advocates suggest that a morerigorous process is one in which all present at thehearing are held to account for their views.I think it’s a pretty traumatic experience forpeople. I think it’s like being hit by a train reallyfor them because often the questions that they’reasked are questions that are quite humiliating, orquite dehumanising. You get members who askquestions that you think are unnecessary. It’s liketell me how crazy you are in 10 different ways.And I also think that when the treatment team giveevidence that this is also really difficult for peopleto hear, because it’s never evidence that they wantto hear and it’s never positive for them. I think theBoard conducts itself in a way where it’s alwaysthe consumer that is under more scrutiny than thetreatment team. They [consumers] never walk outof there going “Oh wow, the treatment team gota real hard questioning, or a real run over”. It’salways them that have the questions put to them.So I think it’s a really difficult thing for people togo through and they feel pretty drained and prettydehumanised by the end of it.Legal RepresentativeStakeholder suggestionsfor improvementLegal representation / advocacy– the role of advocatesThere are a number of stakeholders who viewadvocacy as a double-edged sword – it is said tobe beneficial in terms of offering support to theconsumer but may sometimes do so at the expenseof good relationships between consumers and healthproviders. Legal advocacy is also seen to extend thelength of Board hearings. For some stakeholders alonger hearing equates to a more stressful event forthe consumer.Members also complain about the time thatStatements of Reasons requested by advocates taketo complete. A number of responses are called for:• There is no evidence to substantiate the claimthat advocates make hearings more adversarialthan the Chair will permit. The conduct of thehearing is defined by the Act; the Act permits theBoard to conduct the hearing as it sees fit.• The appropriate length of a hearing is what isnecessary in the particular hearing to allow theBoard to hear all the relevant evidence and tomake a finding based upon it. The Board mustnever lose sight of the significance of taking awaysomeone’s freedom of movement or freedom tomake his or her own medical decisions.• In light of the significance of involuntary statusreview, provision of adequate Statements ofReasons must be facilitated. It is noteworthythat in some jurisdictions, hearings of theCommonwealth Social Security Appeals Tribunalamongst them, statements must automatically beprovided. Interviews and research observationsconfirmed that consumers were not informed77

Lacking Insightof this right by the Board at a hearing, but wereinformed by their advocate or occasionally bythe Board registry when seeking clarification ormaking a complaint after the hearing.I think that at their best legal advocates are reallyhelpful and at their worst they’re obstructive anddifficult. I think it’s a really difficult jurisdiction forlegal advocates mostly because they’re fromthe [Mental Health] Legal Centre or Legal AidThey’re often very aware of the nature of theproceedings of this particular jurisdiction and sothey’re sometimes less than helpful. I think fromthe point of view of a patient they’re importantbecause they provide advice and support alongwith representation.I’ve certainly seen plenty of advocates who onone argument would say that they are advocatingin a particular way for their patient that I wouldsee as being counter productive. So yeah,they have some advantages but I think thedisadvantages often are that they extend theproceedings in terms of time quite significantly,which can have a very detrimental effect onparticipants particularly the patient. I thinksometimes they can’t see the forest for the trees .. . they tend to hone in on particular issues whichare one part of a broader sweep and that canhave some disadvantages for the patient . . . interms of the ongoing relationships with services.I am certainly of the view that the level ofadvocacy we have overall is insufficient but it’sdriven by issues that I can’t do anything aboutat the moment, It’s basically a money issue andone that the government really needs to decidewhat it’s going to do with. I’m certainly aware thatin some other states where advocacy is morebroadly practised that it’s not all that effectiveeven though it’s more common in terms of thenumber of people who have an advocate.Board PresidentLegal representation / advocacy:is it inappropriate?Perhaps the strongest argument against theinvolvement of legal representation at Board hearingsis put forward by carers. Carers are concernedthat legal representatives can tend to argue thecase of the consumer in the abstract – that is, theargument put forward by the advocate can bearlittle resemblance to the reality of the consumer’scircumstances and needs.I personally think [legal representation is]inappropriate in the setting . . . we’re not lookingso much at their legal rights, they have a rightto have good health care and if they don’t haveinsight how can they possibly exercise judgmentin relation to their health. So I think legalrepresentation really is inappropriate.It certainly was in one [hearing] that [my daughter]had. This was a young lawyer who was workingfor Legal Aid, who had no – he’d never metAlexandra before, he was there to see that herCTO was lifted and that was his role, she’d hiredhim to do that. But he didn’t have an interestin her ongoing health, and having the CTO liftedin those circumstances was really not in herinterests at all, but she didn’t have the insight torecognise that. She had been told by somebodyelse that the way to get off your CTO is to ringLegal Aid and he was very effective.Carer78

Part 4 > The Views of the StakeholdersLegal representation / advocacy:how can it be beneficial?Other stakeholders tend to view the role of advocacyas being beneficial to the overall efficacy of the reviewprocess. Representation by an advocate can makethe difference between the consumer’s point of viewbeing merely voiced and actually being heard. Whilstthis can be more time-consuming, it can also meanthat all pertinent issues are raised and evaluated.“I think the Boardhearings work betterif there is an advocatepresent. I feel thatmany consumers areseen but not listenedto, they are not heardas an adult. Having anadvocate with them canhelp alleviate this.”Case ManagerI think [legal representation is] really beneficial interms of people feeling like they’ve got someoneon their side. Just being able to put forwardarguments in a more, I guess, technical wayor in a more succinct, articulate way is usefuland I think it’s useful to raise issues abouttreatment and how the treating team is treatingthe consumer. I think they’re all importantissues and I think sometimes when someone’sunrepresented those things get lost a little bit.Legal RepresentativeThe more formal legal advocacy can be valuablein actually ensuring that not only the Board itselfbut somebody else has analysed the evidenceagainst the criteria. I have seen bad advocacy- advocacy which seemed to me to not have aclear understanding of what their relationshipwas with the client in terms of whether they weretaking instructions from them or acting in their bestinterests. I have seen private practitioners whorarely appear in the field and they didn’t seem toknow what they were doing, but, generally speaking,having an advocate means that the questions whichought to be in issue are considered. . .Former Mental Health Review BoardPresident and Former Public AdvocateThe role of thecommunity memberAs is the case for consumers, a number ofstakeholders are concerned about the role of thecommunity member as it is currently performed.Stakeholders describe a situation where communitymembers appear to lack an understanding ofwhat is expected of them. Given this apparentuncertainty, community members tend to be silent or,at best, offer advice that provides little constructiveassistance to consumers.79

Lacking InsightI think the role of the community member remainsproblematic. There are a number of communitymembers who don’t have a clear perception oftheir role and don’t seem to be as involved as thelawyer and the medical member and that raises areal issue as to what role they do play and whatcontribution they can actually make. I’m not surethat’s being resolved as well as it should be. Ithink there’s a feeling on the part of a number ofcommunity members that they are second classparticipants in the exercise.Too much of the time the community member justsits on the right hand side of the Chair and onlyasks the person whether they’ve got any familymembers and what they do during the day, it’snot a substantive contribution.Board Member (Legal)In response to this perceived lack of direction on thepart of community members, stakeholders suggest anumber of alternative approaches that can be takento the role. A focus on rights issues is often central tothis new approach.To be honest, I don’t see the communitymembers are particularly involved in hearings.They seem to sort of sit on the periphery a bit.And if they’re a key decision maker I think theyneed to be more involved. So I think in terms ofwhat sort of questions they do ask, I guess theydo ask questions about “Where are you living?” or– I think it’s more kind of welfare based more thananything else. To be honest, I don’t know. I don’tknow how much relevance they are to a hearing[as things presently stand].I think it would be nice for there to be a morerights based approach and perhaps thecommunity member could be the one to takemore of that sort of approach. I mean, you’ve gota legal member taking a very legalistic approach,or a psychiatrist member taking a medicalapproach, but it would be nice for a communitymember to actually take a more rights basedapproach and be able to actually ask questions ofthe client that are of relevance to the client.Legal RepresentativeTraining and review ofBoard membersWhen it comes to the matter of what trainingBoard members require, stakeholders are aware ofthe fact that practical measures can be taken byBoard members to make the review experience abetter one for consumers. Stakeholders recommenda number of improvements to the way the reviewprocess is conducted and to how Board membersconduct themselves.Peer reviewA number of stakeholders emphasise the importanceof peer review and ongoing training for membersto ensure that they receive feedback on theirperformance and to assist in the dissemination ofeffective approaches to particular situations.I gather you don’t sort of do peer reviews orsitting up the back and watching each other?No. Well it’s one of the weird things about sittingon a Tribunal. You get no feedback. Of all theones I’ve sat on I’ve had one session with oneChairperson of the Tribunal which I was reallypleased to have . . . and the person was a personI particularly respect and she had the idea thatshe should speak to each of the Board membersand give them some feedback about how theywere going and it was really welcomed from mypoint of view. I was really pleased to be able to80

Part 4 > The Views of the Stakeholderssit down and say to her “Well, how am I going?You know I reckon I’m okay at this, but not toogood at that.”It’s constructive feedback that people enjoy,but this Board doesn’t.No, it doesn’t. No, it doesn’t.And the culture is it resistive or defensive?Yes . . . I’ve been a bit surprised by that andthere’s this sort of judicial independence sort ofnotion . . . I mean someone like [the Presidentof the Board] is a person who’d be very wellable to give feedback in a tactful way to peopleabout that sort of thing and I think it’s actually theresponsibility of the head of the Board.But you’ve got some very stroppy, fairly egodrivenpeople on this Board who if things weresaid to them in a way which they construed ascritical, wouldn’t take it well and would get ontheir high horse and say “I’m not interested, I’ma separate statutory appointee. I do it as I thinkI should and thanks for the feedback, but whydon’t you do something more useful.” I thinkthat indicates that that they’re inappropriateappointees. I think one ought to be responsive.You may or may not fully agree with it, but it’sreally important to be reflective as a decisionmaker. . .Board Member (Legal)I think that would be good [to have] some systemby which there is peer review. It would bereally good. It’s especially important I think forlawyers because you’re appointed to the Boardand until the day you leave you don’t see howother lawyers function. I mean really I have togo back to a while ago now before I was on theBoard when I was being briefed by Legal Aid andMental Health Legal Centre to appear in frontof the Board and I can remember appearing infront of some of whom are my colleagues nowand it was a really good experience. There’sone who I’ll try not to identify who was just awfulto appear in front of, really formal and legalisticand I just felt my clients just never - were reallyintimidated by him, it was like being in a court.He wasn’t technically doing anything wrong,but there was just no warmth, no empathy, norapport or anything. I’m sure he hasn’t changed,and maybe he can’t change, but that raises somequestions as to whether he ought to be there.People ought to be getting that kind of feedbackand if I’m becoming like that I’d really prefer thatsomeone said to me and I’d do my level best toadjust. I think it’s important.Board Member (Legal)Improving Boardmembers’ empathyBecoming a successful Board member requires anappreciation of what a Board hearing may be likefor a consumer of mental health services. Boardmembers require a sound knowledge of mental healthlegislation, psychiatric disability and the effects thatparticular treatment may have. Not surprisingly, a lot ofwhat stakeholders recommend seems to endorse thethinking of some consumers that stakeholders wouldbenefit from consumer education.I think it’s really important for them [Boardmembers] to try to understand what it wouldbe like to be the patient, to understand what itwould be like to have three people sitting there,to be nervous, to need time to settle down, toneed time to assess the room. Don’t launch intothe questions straightaway, try and have somewarmers. There are various techniques that wouldtry to assist somebody to as far as possible feelmore at ease and therefore more able to puttheir case. To look at whatever aspects of theway they communicated, the way they behaved,81

Lacking Insightthe way the hearing is conducted to make it aspositive a therapeutic experience as possible, tobe particularly conscious about language, to beconscious of the questioning, to try and have asfar as possible open-ended questions so thatthere is an opportunity for somebody to ventilateand to tell you what they thought was important.But then there is the whole issue of training,stating the obvious, you need training about thelegislation and what the impact of taking awaysomebody’s liberty is, there is training about themedical issues . . . I mean for me it would be a lotof input and stuff about training because it is abouthow to behave, how to communicate and how torecognise your own behaviour.Former Board President andFormer Public AdvocateI think there also should be some [information]about aggressive behaviour and violentbehaviour and how they can cope with that.Also, [information] about foul language, violentlanguage and how they should be able to copewith that. People need to know they may upsetpeople and they have to accept that. Also anintroduction on how to cope with the mostbizarre cases which some people cannot copewith. Anything can happen. I think also sometraining about how to communicate with respectto violent people, so they understand what yousay and you allow for them to grasp that you arethere to help. And people should be treated asnormal people, like anyone else, with respect anddignity and with support . . .Senior Psychiatrist“I think they also needtraining in relation to therole of advocates, both legaland non-legal advocates andsupport persons. Perhapssome training on some basichuman civil rights and theimportance of conceptslike natural justice, thosesorts of things.”Legal RepresentativeOther stakeholders emphasise the importance ofpositive affirmation, so that when the circumstanceswarrant it, the person attending the hearing ispresented with a favourable view of the situation.One case that I had that, I mean it wasan afterthought, but I think my client reallyappreciated it and it came from the communitymember. He was not discharged but this clienthad had a longstanding addiction to marijuanaand . . . he had given up marijuana after longterm use and had stopped it for about a year,and the community member, you know, sort ofcongratulated [him]. [It] wasn’t congratulations ina patronising way, you know, [the member] saidwhat progress he made and how difficult it musthave been for him to give up the marijuana. Soeven though the decision was against him, hewalked out of there sort of looking pretty proud of82

Part 4 > The Views of the Stakeholdershimself. . . . and I’ve got to say I was struck byit because I’ve never seen someone - the Boarddoesn’t usually or very rarely make any sort ofpositive statements to clients.Legal RepresentativeIn this quote we hear how the client left with his headhigh, the Board acknowledged him as a personand his efforts to manage his life as significant; theyencouraged him – this may have left the client with apositive feeling despite the outcome.The formality and rituals of hearings allow foraffirming of a person in a setting that is significant – ifhandled with care and respect they can contribute toa therapeutic outcome.Statement of Reasons“... not malodorous”It is difficult to understand the purpose of suchan opinion or observation found in the ‘evidence’section of a Statement of Reasons. The language ofthe statements is often laden with subjective viewsproffered by clinicians and accepted and regurgitatedby the Board under the guise of medico/legal jargon,or, as in the case of ‘not malodorous’, in highlyprejudicial language. Legal advocates, though thekeenest readers of these monologues, are perplexed:Statements of Reasons I don’t really thinkhelp you much.to quote evidence that goes againsttheir reasons.Well it’s the main thing sometimes when you’veappeared and you’ve put all this argument andthen you see two lines attributed to you and thenyou’re looking at the reasons thinking hang on!They thought I was the tea lady, what’s going on ...Legal Representative (Discussion Group)As stated earlier, a Statement of Reasons is adocument that sets out the tribunal or court decisionin a particular matter. Reasons include the evidencethat has been relied upon by the tribunal, and therationale for accepting some evidence and rejectingother evidence.Statements of Reasons are rarely automaticallyproduced by the Board; they are written eitherbecause a consumer, or the consumer’s advocate,makes a request to have the reasons for thedecision in writing, though occasionally, where thereis a dissenting decision, the Board will prepare astatement at its own initiative. The Board offerscomparatively little training on the subject of writing aStatement of Reasons. Generally, if the statement iswritten, it is done so by the legal member.Discussions with stakeholders reveal two clear viewsabout the status of Statements of Reasons: the firststates that the system for producing statements andthe rate at which it is done is adequate for the needsof the jurisdiction; the second suggests that morerigour could be applied to their creation.I reckon they’re generally unsatisfactory intheir formulas, do you?Yes.And they’re self-serving.Yes, you’re not ever going to - they’re not going83

Lacking InsightStatements of Reasons – the viewthat they are adequateIn your experience, do you feel a Statement ofReasons is an adequate or a true reflection ofwhat occurs in a hearing?Well I don’t think they are intended to be astatement of what occurs in a hearing; they areintended to be a statement of what evidence thatwas relevant was given and what findings of factremain and what legal conclusions can be drawnfrom that. That is different from saying whatoccurs in a hearing. Sometimes in a Statementof Reasons you would put in some of the thingswhich the patient said that were quite irrelevantjust so that you felt the patient saw they werecovered in the Statement of Reasons and I thinkthere is a therapeutic value in that, but other thanthat I think they are an adequate representation ofthe thinking process of [Board].Former Board President andFormer Public AdvocateI think generally they [Statement of Reasonsare] satisfactory. I don’t think they’re perfect byany means and it’s very hard to reflect the totaldiscussion that takes place at any hearing in awritten form that’s done some weeks later. I’mnot sure of a better way to deal with it to be quitehonest in this jurisdiction. There are jurisdictionswhere we tape proceedings for example and Ithink that’s something which I’d prefer not to dofor all sorts of reasons. I think that the difficultyis that they are cast in terms of the decision,which is the element the Board in a sense is mostconcerned with but that’s not necessarily whatthe person who is asking for them is concernedwith . ... But I think in terms of what they are Ithink they’re adequate.Is that part of the induction and training – theStatement of Reasons?Relatively small part of what we do. We certainlydeal with them from time to time. They’re writtenby relatively small number of members overall,generally speaking not all members write aStatement of Reasons on a regular basis so it’s notsomething we revisit with all members all the time.Board PresidentStatements of Reasons – the viewthat they can be improvedSome members of the Board are concerned that theBoard’s approach to the Statement of Reasons hasa flow-on effect on the overall effectiveness of thereview process.The good thing that it [greater involvement inwriting Statements of Reasons] would do isto make people really feel involved and havea genuine sense of responsibility for decisionmaking.A good deal of the time the lawyerwrites the reasons and they can have a degreeof eccentricity about them and be fairly much theindividual view of the lawyer and yet the othersjust join in without seeking to amend or put adifferent perspective or change and I think that’sproblematic. What it says to me is that othersin the exercise are going through the motions abit in terms of the reasons which I think are veryimportant when they are asked for; there reallyought to be an expression of all three members.In relation to Statements of Reasons, what doyou see their purpose as being?Statements of Reasons are written for a varietyof audiences and they should be couchedaccordingly. They’re written first and foremost forthe patient, they’re also written for the clinicianwho has made the decision which may or may84

Part 4 > The Views of the Stakeholdersnot have been accepted. They are made witha view to potential appeal. They should bewritten also in the awareness that colleagues onthe Board, and not sitting on the hearing, willbe reading them and that they may be useful.They’re written also for legal representatives andother advocates who appear before the Boardas a means of providing information about howthe Board has reasoned through issues anddifficulties in terms of statutory interpretation oractual scenarios.Board Member (Legal)The legal member continued with an example of theutility of writing Statements of Reasons. They areseen as an excellent means to explain the basis for aparticular decision and to communicate concern tocolleagues about the way hearings are conducted.This member believes that Statements of Reasonsafford an opportunity to the Board to correct errorsof fact. They also clarify matters in the paperwork ofconsumers which can have serious implications fortheir future liberty.Okay can I give you an example? I did aStatement of Reasons recently where I wasdissenting; in fact it was in a large part to do withthe concept of non-compliance.. . . the thing that was concerning me was thatthe person was repeatedly described as havingan established history of violence and a historyof non-compliance. And when you actuallyexamined it carefully it was [the case] that onceseveral years ago something had gone wrong infactually quite different circumstances from thosewhich were presenting at the moment. But it’s acommon mode of parlance.Board Member (Legal)Advocates are concerned that reasons for decisionsappear to be formulated after the fact, and thereforedo not form the basis for the decision at the time ofthe hearing. Advocates also find it troubling that themost important aspects of the Statement of Reasonsare often far too brief.Statements of Reasons, are they helpful?Sometimes they are. Some of them are reallygood quality. And some of them are much poorerquality. They might be inaccurate in the waythat they reflect what was said in the hearing . . .and it’s of real concern if a Board member goesaway, thinks about what were the reasons for theconclusion that they make and then writes it upin a Statement of Reasons. Sometimes you getthe sense that that’s what’s happened. Becausedetailed reasons aren’t given on the day. And I’vebeen in hearings where members have refused togive oral reasons to clients when they’ve asked. .. . And to actually be told “No, you can ask for awritten decision.” is pretty poor. It’s pretty poorform.... I’m never happy to see two lines for why aperson can’t consent to treatment. As far asI’m concerned that’s not good enough. It’s notgood enough to have a lengthy record of whathappened in a hearing and two lines about whythe Board made the decision that they did. It’snot good enough.Legal Representative85

Lacking InsightSummary of stakeholder viewsIn summary, stakeholders raised the following issuesin addition to those raised by consumersInquisitorial v Adversarial/ TheBoard: a rubber stamp?• There is a wide range of views as to whether theBoard conducts itself in a truly inquisitorial wayor not;• Some stakeholders were concerned about thelevel of inquiry;• Some view the Board as it is constituted and withinquisitorial powers, as having the expertise andthe authority to proactively assess consumers’status and confirm the diagnosis.Access to information/Consumers’ level ofunderstanding of thereview process• Consumers’ participation is greatly improved ifthey have access to the file and time to read itprior to the hearing;• Consumers need assistance and support toview files;• Consumers need to be better prepared forhearings. Some responsibility for this remains withthe clinical staff; however, how best to provideinformation needs to be constantly consideredand various ways explored.Rituals of the Board• The layout of the room ‘sets the scene’ in termsof formality;• The level of formality is a delicate balance interms of indicating that the matter is being takenseriously while also setting people at ease.Effects on consumers’ lives• Stakeholders were concerned about the lastingimpact of the hearing;• Some stakeholders were concerned that Boardmembers can become desensitised to issues forconsumers.Legal representation• Legal representation before the Board isbeneficial, though some stakeholders wereconcerned that it may be anti-therapeutic.Increased role forcommunity members• The role of the community member should beclarified, as community members and othermembers are unsure of the role;• The role of community members could bedeveloped into a specific role to complement theskills of other members.Training of Board members• Peer review and ongoing training would bebeneficial.86

Part 4 > The Views of the Stakeholders87

AppendicesAppendix 1 – List of AbbreviationsInitials: These have been used to identify consumersinterviewed. The second initial indicates the gender ofthe interviewee: M male or F female.The Act - The Mental Health Act 1986 (Vic)The Board - The Mental Health Review BoardThe Centre - Mental Health Legal CentreThe Charter - The Charter of Human Rights andResponsibilities Act 2006 (Vic)The Convention - United Nations Convention on theRights of Persons with DisabilitiesCTO - Community Treatment OrderDHS - Department of Human Services, VictoriaITO - Involuntary Treatment OrderMI Principles -The United Nations Principles for theProtection of Persons with Mental Illness and theImprovement of Mental Health Care 1991Appendix 2 – Stakeholder SteeringGroup MembersFour Involuntary Patient RepresentativesPresident, Law Institute of VictoriaMr John Lesser, President Mental Health ReviewBoard VicMr Ron Cahill, Chief Magistrate ACT, PresidentMental Health Tribunal ACTProfessor Terry Carney, University of Sydney,Immediate Past President, International Academy ofLaw and Mental HealthDr Duncan Chappell, Chair of the CEPS InternationalAdvisory Board, Professorial Fellow at the Universityof Wollongong’s Centre for Transnational CrimePrevention. Former President, Mental Health ReviewTribunal NSWAssociate Professor, Dr David Tait, School of Law,University of CanberraDave Clarke CEO, VICSERV – Psychiatric DisabilityServices of VictoriaMs Isabel Collins, Director, Victorian Mental IllnessAwareness AssociationDr Ian Freckelton SC, Mental Health Review BoardMember and BarristerMr Julian Gardner, Former Mental Health ReviewBoard President and Former Public AdvocateMr John Hickey, Department of Human ServicesRepresentative, VICCAG – Consumer and CarerAdvisory GroupMary Macrae, Carer ConsultantProfessor Bernadette McSherry, Mental HealthReview Board member. Australian Research CouncilFederation Fellow, Rethinking Mental Health LawsProject, Faculty of Law, Monash UniversityMs Robyn Mills, Manager, Human Rights Civil LawSection, Victoria Legal AidMs Vivienne Topp, Policy Co-ordinator, Lawyer,Mental Health Legal CentreRepresentative, Mental Health Law Centre,Western AustraliaChief Psychiatrist, Department of Human ServicesVictoriaMr Robert Wheeler, Legal Aid NSWProfessor Bob Williams, Mental Health Review BoardMember, Faculty of Law, Monash University88

Appendix 3 – Promotional Material,distributed by VICSERV, VMIAC, to allconsumer consultants and to areamental health services:Have you had an experience withthe Mental Health Review Board?‘Involuntary Patient Experience of the MentalHealth Review in Victoria – What is it and HowDoes the Process Work?’The Mental Health Legal Centre is currentlyundertaking a research project exploring people’sexperiences of mental health review in Victoria andthe Mental Health Review Board. This will include anyapplications, hearings, and follow-up from MentalHealth Review Board hearings. The project largelyaims to record the experience of the mental healthreview process from the perspective of consumers(those that have been involuntary patients).In addition to the perspective of consumers otherstakeholders, including carers, Mental Health ReviewBoard members, community organisations andprofessional groups will be sought. Focus groupsand interviews will be undertaken to collect qualitativedata from participants, to identify possible strategiesfor further enhancing service quality standards of themental health review process, including in areas ofcommunication, representation and reform.The project team is now looking for people whowould be interested in participating in focus groupsand interviews during the next few months. Pleaseexpress your interest by contacting the ProjectWorker, Mim Ingvarson either via e-mail atMiriam_Ingvarson@fcl.fl.asn.au or on 9629 4422.If you require an interpreter please let us know andone will be arranged for you.Thank-you for your interest and support of this project.Please rip off a copy of my contact name and phonenumber to callAppendix 4 – Semi-structuredIn-depth Interview PromptsInterviews with stakeholders utilised this framework,adapted appropriately to the particular role ofeach interviewee:Semi-structured in-depthinterview promptsI’d like to start off by asking you to describe how itwas that you came before the Mental Health ReviewBoard?orCan you tell me about your experiences that ledyou to appearing before the Mental Health ReviewBoard?andCan you tell me why you were interested inparticipating in this project?1. The hearing processIndividuals’ access to information regarding hearings• What access did you have to informationregarding your rights, including appealsmechanisms, involved in the Board process?• What information did the Board provide to you;89

Lacking Insight• What format did that take? Was it valuable?Were you easily able to understand its contents?• Were you given notice of the hearing/s? Was thisadequate / helpful?• Were you informed of your right to legalrepresentation?• Were you able to access legal representation?• What issues were a part of your decision toattend / not attend the hearing/s; reasons, issuesand how you were assisted in these decisions?• What access did you have to your caseinformation – right to inspect documents, casefile, doctor’s report.• What experiences did you have that provided fora forward-looking approach to your treatment?• What was your understanding of theBoard’s process?• How easy was this to understand?• Did you feel your privacy / confidentiality wasrespected? Reasons given for breaches if any?2. Environment and conduct of hearings• Can you describe the waiting area pre-hearing?• What was the order of those speaking duringthe hearing?• Can you describe the physical environment andlayout of hearing space?• Did you feel any ownership of the space?By whom, why and how?• Can you tell me about the Board membersmanner, eye contact, warmth or civility?• What was the level of formality of proceedings?• Explore any gender issues – were there anygender issues?• Did you experience any cultural and/or languagedifficulties during the hearing, including use ofjargon and use of interpreters• Did you feel you had a right to be listened to? –Explore appearance of a token effort, havinga fair say• Issue of appeals and reviews being held bythe same Board members as the previoushearing – discuss.• Did you understand the Board’s weighting ofevidence? How was this explained to you / howdid you understand this?3. Outcomes of hearings• Was there any exploration and examination ofleast restrictive treatment options for you throughthe hearing?• Do you see the Board as being able to be usedas a forum to discuss treatment plans and theadministration of these? If so why and/or howwould you like to see this work?• Did anyone explain to you what would happenif you were to be discharged from involuntarystatus - prior to and after hearing?• Do you know of the consumer complaintsmechanisms? Would you use these? Are theseuseful avenues?• Did you understand the decisions being madeabout your treatment as voluntary or involuntary,by the Board?• Reviews are scheduled at 8 weeks, which isthe equal longest time in Victoria as anywhereis Australia, and appeals within 14 days oflodgement. How did these time frames affectyour experience?• What was the emotional experience of thehearing for you?90

Appendices• Did you feel that you were taken seriously? Wereyour viewpoints adequately heard by the Board?• Did the Board explain to you why they had madetheir decision? How was this done?• Did you request a Statement of Reasons?Why / why not?• Did anyone talk the process / decision made bythe Board / through with you afterwards?4. Role of the Mental Health Review Board• What level of confidence do you hold in the Boardas upholding the law and protecting the rights ofinvoluntary patients?• What support did you receive from the Board?DHS? Area Mental Health Service?• What would you recommend should be includedin the training and induction of Board members?• How do you understand the different roles of theBoard members? Community member, lawyer,doctor? For example, what is the effectiveness /reason for / of community members?5. Advocates and legalrepresentatives – as appropriate• What do you see is the role of legalrepresentation?• How do you think legal representation isinterpreted by Board members?• How did you access advocacy?• Do you believe advocacy creates a fairerprocess? How?• Why do you think the level of legal representationof involuntary patients is so low?• How effective are the community members? Whydo you think this?91

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Mental Health Legal Centre Inc9th Floor, 10-16 Queen Street, Melbourne Vic 3000Phone: (03) 9629 4422 Fax: (03) 9614 0488Country Callers: 1800 555 887Website: www.communitylaw.org.au/mentalhealth