Four Studies and a Tribunal

New South Wales is in a very fortunate position in 2012 as it comes to review the Mental Health Act and specifically the Mental Health Review Tribunal (MHRT) which is set up and functions under this Act, because since October 2011 there have been no less than four significant empirical studies or inquiries (including a Legislative Council inquiry) published reviewing the work of the NSW MHRT.

Combined these provide some remarkable and valuable insights into the functioning of this body, and the dedication of the people working within the Tribunal system. However, they also suggest some potential area for the reform of these services which will no doubt now be able to inform the deliberations of the reviewers of the Act. The four studies are,

• “The NSW Mental Health Review Tribunal - An analysis of clients, matters and determinations”(October 2011) by Cain, Karras, Beed and Carney (funded by the Law and Justice Foundation);
• The monograph “Australian Mental Health Tribunals – Space for Fairness, Freedom, Protection and Treatment” (31 October 2011) by Carney, Tate, Perry, Vernon and Beaupert; and
• the Communio ‘Evaluation of the Efficiency and Cost of the Mental Health Inquiry System’ Report (30 January 2012) commissioned on behalf of the Mental Health Drug and Alcohol Office to review the recent changes to the inquiry system removing the role of magistrates;
• The Report of the Law and Justice Standing Committee of the Legislative Council on “Opportunities to consolidate tribunals in NSW” (March 2012).

In this analysis, we will give a brief overview of these four reports and analyse some of the key findings for potential reform (with special consideration of carer issues) in the light of these findings and the implications these have for government policy and the role of the new NSW Mental Health Commission.

“The NSW Mental Health Review Tribunal - An analysis of clients, matters and determinations”(October 2011) by Cain, Karras, Beed and Carney (funded by the Law and Justice Foundation);

Justice Foundation of NSW, “This report provides a detailed description and analysis of the characteristics of a sample of mental health clients whose contacts with the NSW MHRT were tracked for a period of almost five years.  The aim of this study was to provide fresh understandings about the management of people with a mental illness, especially at the point of entry to involuntary case regimes negotiated before a tribunal that has legislated, quasi-judicial powers. ”

Specifically, the study reviewed “whether the outcome of applications to the MHRT was affected by a client attending a hearing; by a client being legally represented at the hearing; by the attendance of mental health service professionals at the hearing; by the submission of various types of professional reports to the Tribunal; by the attendance of family and other patient support figures at the hearing; and by the mode of the hearing itself.” (Foreword)

“The study… utilised quantitative research methods to describe and analyse trends and patterns in data drawn from the records of persons who were new entrants to the NSW MHRT system in 2003. For a sample of 299 clients, each individual’s full history of hearings before the Tribunal was reconstructed for the period from their individual points of entry in 2003 to 31 October 2007 — the date that the NSW Mental Health Act 2007 commenced.”(Executive Summary)

There were a range of interesting findings resulting from this details analysis, which dealt with Tribunal determinations prior to recent changes which saw the MHRT take over this ole in its entirety from Magistrates in NSW.

The monograph “Australian Mental Health Tribunals – Space for Fairness, Freedom, Protection and Treatment” (31 October 2011) by Carney, Tate, Perry, Vernon and Beaupert;

 The report finds that the various rules of the different Tribunals across Australia generally seek to ensure procedural fairness by providing mechanisms for people to be heard, to have access to information and representation and for reasons for decisions to be provided.

The different jurisdictions take very different approaches to this. Crucially the report finds that, “…Australian MHTs are unduly constrained by under-funding of their operations, and by the absence or scant provision of ‘adjuncts’ such as routine second medical opinions or the advocacy and legal representation schemes which are becoming the gold standard internationally.

That the Australian performance is so strong as it is despite operating in such intolerably small ‘spaces’ is a tribute to the dedication of their leadership and their members. As the evidence set out in this monograph reveals however, it is a level of performance which necessarily still falls short of what is expected under human rights principles.”

The report notes that protection of a persons’ right to liberty and autonomy without reference to these other issues may ultimately undermine a person’s civil rights more generally; while civil ‘commitment’ (involuntary treatment) paradoxically limits autonomy but can also restore it and enable a person to function as fully as possible in the community. (34) The report examines the tension between the right to freedom and the right to treatment and health. While these positive rights are becoming better recognised, they also require ‘greater respect for the choices and values of mental health consumers, including their capacity to decide or participate in their health care, as well as through advance directives and supported decision making processes…”

The report goes on to describe developments in the human rights legal context in Australia. It found that common problems raised by these studies were that: the values of Tribunal members acted as a kind of filter for the information considered and that medical reports seemed to set limits around the issues canvassed; that medical perspectives were given much greater credence than those of other stakeholders; that Tribunals can often reach decisions on the basis of extra-legal factors or by replacing legal criteria with proxy tests, and often decided cases on the basis of such information often not raised in the presence of clients or later explained; that the role of lay members was insufficiently defined and the need for high quality training was highlighted (page88).

Importantly, there were also found to be some crucial differences in the decisions made by Australian MHTs compared with overseas; with very low rates of discharge orders in Australia contrasting with experience in overseas jurisdictions (e.g. 31% in Canada, 34% in UK and 14.5% in New Zealand). This research tends to support the idea that particularly in Australia the MHTs ‘rubber stamp’ clinical decisions rather than affording sufficient due process.

Chapter 5,6, 7, and 8 present the studies main findings. Chapter 5 analyses the system wide data, while 6, 7, and 8 concern the qualitative findings in relation to participants and stakeholders experiences. The report then analyses the statistics about the hearings themselves, looking at a range of factors.

Chapter 6 looks at the pre-hearing journey toward a hearing. It outlines the standard process which will occur in each jurisdiction (149-150) and notes the practical implications of many of these  Chapter 7 looks at the substantive ‘workings’ of hearings. It looked at the way in which the criteria for inpatient treatment is addressed by hearings, and in particular the way in which the availability of services makes a crucial difference to the orders ultimately made by the Tribunals (194).   

Chapter 8 considers ‘Cognate Spaces around and after hearings’. It considers the communication space  the psychological ‘space’ ‘adjunct spaces’ and ‘treatment spaces’ and the ability for the MHTs to become involved in treatment decisions .

Conclusions

The most important conclusions were found to be:

• By addressing legal criteria for involuntary orders MHTs would address consumer concerns;
• That while there was support for a right to effective treatment, this could not practically be enforced by MHTs as currently constituted (279)
• It noted that consumers need to be supported at hearings, (286, 291) but that this cannot always be effectively done by carers or family members who may have different views to the consumer and their own need and agenda to further (291)
• It also noted that Tribunals have very limited ability to propose clinical alternatives and this should be enhanced (299)
• Greater attention is needed on how MHTs can assist consumers at access services and realise their right to health and their participation in MHT proceedings (303, 312);
• Mental Health Commissions should routinely collect and analyse this kind of data (306),
• Mental health services and Tribunals are all in need of a massive boost to their resources if they are to fulfil their legislated role adequately (309, 310, 314, 315).

Communio – Final Report -  Evaluation of Efficacy and Cost of the Mental Health Inquiry System - Version 1.3

This review was undertaken to evaluate the effectiveness and costs of the current Tribunal model which has been in place in NSW since 21st June, 2010, and to compare the results with the previous Magistrate model. This resulted in the production of this ‘Final Report for the Evaluation of Efficacy and Cost of the Mental Health Inquiry (MHI) System, NSW

 This report made a number of key findings, most importantly that consumer rights are not adequately protected relating to the timing of inquiries, the perceived effectiveness of the appeal against refusal to discharge process, and the awareness by consumers of their rights. There is a large amount of inconsistency in terms of hospital practices and culture in relation to the MHI process.

 The new MHRT system has drastically reduced adjournments, but has resulted in increased numbers of appeals against refusal to discharge which have increased MHRT costs. The costs of the Tribunal are significantly higher than the contribution received from the Department of Attorney General and Justice of $400,000 per annum (in 2009/10 dollars).

 No person interviewed as part of this project believed that people were detained inappropriately. The objects of the Act are being interpreted broadly. Whilst the Tribunal’s MHI role under the Act is to review the appropriateness of the person’s detention, the Tribunal is now reviewing whether the care of the person is appropriate.

 The report made a number of recommendations, including that the Mental Health Commission review the model for the Tribunal’s role and functions, investigating alternative models nationally and internationally. That an alternative costs model be prepared to determine the most efficient time to hold the inquiry, balancing the earlier time costs against a reduction in appeals.

Communio Recommendations

1. The governance of the MHI process needs to be ascertained. This could be referred to the NSW Mental Health Commission.
2. Investigate alternate models for the Tribunal as part of the review and establishment of the new Mental Health Commission.
3. Determine most efficient timeframe for holding enquiries to balance the costs or earlier hearings against reductions in appeals and the impact on consumer rights.
4. Avoid using video conference facilities where there are contra-indications, such as the clinical condition of the consumer, where practicable.
5. Ensure that consumers whose inquiry is conducted by video conference has a support person present, where possible
6. Monitor feedback in relation to the use of video conferencing in a structured and systematic way.
7. Explore ways to further increase face-to-face inquiries and reduce the use of video conference facilities.
8. Hospital key performance indicators related to the MHI process are recommended to be developed.
9. Further develop appropriate education programs for medical staff to ensure they have appropriate knowledge and understanding of the Act and the Tribunal process, and consumer rights.
10. Include key performance indicators relevant to mental health inquiries into the position descriptions of medical superintendents of mental health facilities.
11. Develop electronic systems for completion of administrative requirements and sharing information between the hospitals and Tribunal.

 Other Key Findings

Communio found that the Tribunal had developed education packages for medical staff to increase their knowledge about the Act, the role of the hospital in the inquiry process and the role of the Tribunal. Communio noted that there are no mandatory quality assurance processes or indicators related to mental health inquiries at the hospital level. As part of this review there were attempts to view hospital policies or guidelines specifically relating to the mental health review process, but none were evident.

 In 2007-08 the Victorian Mental Health Review Board calculated the direct and indirect cost per „hearing‟as AUD $459. By comparison, the Irish Tribunal costs for calendar year 2007 were €4,753 (AUD $8,250) per hearing. This is a ratio of nearly 18:1 on hearings. Investigation by Carney14   in 2008 found that Victoria was the least well resourced at $459 per hearing, followed by NSW at $501 and Queensland at $549. ” 

 Communio found that the Tribunal is attempting to improve the inpatient mental health system for consumers and has adopted a broad interpretation of its responsibilities for this purpose.

 There is no evidence 14th that patients without a mental health condition requiring admission are detained. The role of the Tribunal is now focussed more about quality of care rather than inappropriate detention. It is questionable whether lawyers are the most appropriate professional group to fill this role.

The Report of the Law and Justice Standing Committee of the Legislative Council on“Opportunities to consolidate tribunals in NSW” (March 2012)

David Clarke MLC Liberal Party (Chair)ed the Committee.The Committee’s Report, published in March 2012 recommended “that a consolidation of tribunals should be pursued by the NSW Government as it will indeed improve access to justice for the people of New South Wales and provide a ‘one stop shop’ for minor disputes and review of administrative decisions.

 This view is strongly supported by the experiences of other Australian jurisdictions which have found that access to justice has improved as a result of tribunal consolidation, especially for people in regional and rural areas. Although the Committee has not received sufficient evidence to determine the most preferable method for consolidation, we are confident that the expert panel we have recommended will be well-equipped to do so.”

 There were sixteen specific recommendations (Recs) about any moves to consolidate tribunals in this fashion, including the above:

 “Recommendation 2

That the NSW Government appoint an expert panel consisting of senior legal professionals, senior members of existing tribunals, relevant government officials and other stakeholders to pursue the consolidation, formulation and appropriate structure of a consolidated tribunal, including preparation of a detailed plan on the method for consolidation and implementation.”

 Other recommendations ranged from requesting a simple user friendly set of Tribunal rules (Rec 5) and forms (Rec 9) that the Tribunal processes e.g. filing etc be made more accessible on-line (Rec 6 & Rec 9), through to recommending that the ‘back of house’ operations of each Tribunal be consolidated (Rec 14).

 In particular, the Committee found there was no reason in principle why such a consolidated tribunal should not include the Mental Health Review Tribunal or Guardianship Tribunal, so long as separate divisions within the consolidated tribunal can focus on particular areas of law and draw on and implement specialist features of the existing tribunals (Rec 7).