From time to time we will be publishing articles in Balancing the Act, by guest contributors
(Keith Williams, is the author of the first article)

Lessons We Should Have Learnt - Mental Health and Human Rights

By Keith Williams, Executive Director of the Queensland Association for Mental Health

In 1993, Federal Human Rights Commissioner, Brian Burdekin, painted a bleak picture of the lives of Australians suffering from mental illness. His landmark report "Human Rights and Mental Illness" has been a catalyst for significant reforms in mental health services over the past four years. However, a question mark remains over whether the reforms have really made a difference for the people who use these services.

’The overwhelming response from participants was that the culture in mental health services, based on the right to coerce, continues to ignore consumers' claims for dignity, respect and the right to participate in treatment decisions.’

Recently, the Queensland Association for Mental Health (QAMH) completed a Commonwealth funded project to review systems advocacy for people with mental illness. As part of this project a series of focus groups with mental health consumers was conducted around Queensland. The overwhelming response from participants was that the culture in mental health services, based on the right to coerce, continues to ignore consumers’ claims for dignity, respect and the right to participate in treatment decisions. This culture is maintained and given legal force by the Mental Health Act 1984.

The Mental Health Act is currently undergoing a major re-write and is expected to be presented to Parliament sometime early in 1998. This has been a long process and despite the formal consultation process on the new Act concluding in late 1994, a series of media reports over the past few months has re-ignited the debate. The State Government has responded to this debate by preparing a number of proposals for further reform. Unfortunately these proposals, which focus on the Tribunals constituted under the Act, raise some serious questions about the direction of the new Mental Health Act and the rights of people with mental illness.

There are two Tribunals which determine involuntary detention under the current Mental Health Act. The Patients Review Tribunal (PRT) is constituted by a District Court Judge and two other members. It primarily determines matters in relation to the regulation/commitment of a person to a mental health facility. Every person held in involuntary detention under the Mental Health Act will have that detention periodically reviewed by the Patients Review Tribunal. In 1996, the PRT received 2,600 applications for review and made 1,735 decisions affecting nearly 1,700 people.

The Mental Health Tribunal is constituted by a Supreme Court Judge assisted by two psychiatrists. It determines matters in relation to criminal responsibility including:

1. whether the person concerned was of ‘unsound mind’ at the time of an alleged offence;
2. the fitness of a person charged with an offence to stand trial; and
3. hearing appeals from the Patients Review Tribunal.

One of the major proposals of the new reforms is the abolition of the Mental Health Tribunal and the transfer of its jurisdiction to a specialist jurisdiction of the Supreme Court. The major impact associated with the transfer of jurisdiction is the loss of the inquisitorial nature of the proceedings.

At present the Mental Health Tribunal in exercising its jurisdiction is deemed to be a permanent Commission of Inquiry under the Commissions of Inquiry Act. In the current Mental Health Tribunal the prime duty of the presiding Supreme Court Judge is to determine the truth of the matter. In an adversarial system, as used by the Supreme Court, the focus is on the arbitration of submissions of the defence and the prosecution.

In relation to determinations of fitness for trial and criminal responsibility there are many benefits to the inquisitorial process, not the least of which is the decreased emphasis on the ability of the accused to instruct legal counsel at that time. This inquisitorial process will be lost as the Supreme Court does not have the powers of a Commission of Inquiry.

Another major reform proposal relates to the subsequent continuation of a criminal prosecution after a person has been found ‘unfit for trial’. A person can be found ‘unfit for trial’ if, due to mental illness, intellectual disability or some other reason, the person is unable to understand the nature of the charges or the proceedings before the Court. The reforms propose that a Crown Law Officer should have the capacity to re-commence the proceedings at any time should the person be subsequently found to be fit for trial.

The current Act imposes a three year time limit on bringing a matter to trial. In addition, the Criminal Code provides a number of limitation periods depending on the nature of the alleged offence. The proposed change to the Mental Health Act would potentially enable a matter to be brought to trial after the limitations period under the Criminal Code had lapsed. This proposal appears to be in conflict with both the Commonwealth Disability Discrimination Act and the Anti-Discrimination Act Qld, as a person with mental illness would then be treated detrimentally when compared with a person where the matter had not proceeded to trial for some other reason.

I have only addressed two out of the many changes proposed to the Mental Health and Patient Review Tribunals at this time. Unfortunately, the current debate seems to be driven by the sensational headlines of recent media coverage rather than the more disturbing lessons we should have learned from Brian Burdekin and the National Inquiry.

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