Legal Challenges To Mental Health Practices

Legal challenges to mental health laws appear to be having some impact on Australian mental health practices with the possibility of better outcomes for people facing Community Treatment Orders.

I was involved in some interesting conversations last week.

One of them was with a New Zealand academic psychiatrist Giles Newton-Howes who together with New Zealand Mad activists and lawyer Sarah Gordon have challenged the validity of the New Zealand government’s mental health laws. The case was recently heard in the New Zealand high court and is waiting judgment. No doubt the judges are doing some serious pondering as their decisions are likely to have significant consequences. Not only are these decisions expected to have an impact on mental health practices in New Zealand but they will set all important precedents that could affect other countries including Australia where our mental health system and situation appears to be quite similar to those in New Zealand.

Another interesting conversation was with academic lawyer Chris Maylea. Chris has been involved in drafting the new Victorian Mental Health act. He is less than impressed by this new act that he himself worked on. Both he and others are saying that it is better than the old act but still more or less useless. Chris said that in his opinion, it didn’t matter what the law said because doctors would just do whatever they wanted to do anyway and nobody would try and stop them.

Not just mental health laws but many other human relations type laws have no punitive teeth. The typical redress is to lodge a complaint with some government department who, if you are lucky, twelve months later will issue an apology and say “tut tut that shouldn’t have happened”. Chris’s point is that no court is going to send a doctor to jail for administering electro shock or long term anti-psychotics to someone against their will, no matter what the law says. On the other hand it has been suggested that every little bit helps. It is hard to see how an improvement or more favorable interpretation of the current laws won’t add at least some momentum towards the reforms that many of us are wishing and waiting for.

Some years ago a lawyer friend told me to never pick a fight unless it looked winnable. I see a lot of un-winnable fights in the mental health arena but one that is starting to look increasingly winnable is the mental health tribunals where a lot of the problems with forced interventions originate from. These tribunals, not all that long ago were just a rubber stamp for a doctor’s  arbitrary and often dubious opinion but things appear to be changing. There have been a couple of important legal challenges that the authorities seemed to have managed to keep out of the public eye but it appears that they might be looking a little more closely at what is going on. These tribunals seem likely to be held increasingly accountable for their decisions. I am also hearing that well prepared submissions can now win or at least result in significantly better outcomes at these tribunals.

From my own personal experience, I know how distressing and humiliating exposure to involuntary confinement and treatment can be. I am currently involved in helping set up a free peer-to-peer service for people who want to challenge a tribunal order. This service will initially only be available in Victoria but hopefully, as the network grows it will spread right around Australia. Success at a tribunal won’t be a pushover. It will depend on the person served with the order being willing to work with peers to come up with a realistic mental health self management plan that will keep them out of hospital. The state mental health authorities don’t want people in hospitals. It costs money, although I understand that the use of involuntary treatment and Long Term Injectable anti-psychotics (LTI’s) has not had anything like the impact that was hoped for in preventing hospital readmissions. Most of the existing public systems are ineffective in the long term because they suppress symptoms without attempting to deal with the underlying problems and issues. Public policy in Australia and elsewhere appears to be one of “out of site, out of mind”.

This peer tribunal support service can be accessed by clicking on the the Join Us button on this website, signing up as a member and then proceeding to the  Tribunal Support Group in the members Group section where more information will be found.

Unfortunately the ongoing support needed to help keep people out of hospital is very limited at the moment so there is a lot of other work that needs to be done to provide a complete community support system. This was supposed to have been put in place years ago when the large state owned and operated psychiatric hospitals were closed down but it never eventuated.

Some people, particularly those who have had some success with existing mental health services feel threatened by talk about change. Given the nature of mental health, this is hardly surprising and perhaps some reassurance is needed. Change is likely to be a slow process with newer and hopefully better resources and methods operating side by side with older ones. Those who are happy with their existing arrangements will probably be able to access then for as long as they want to. These older treatments and facilities will probably only fade away when they are no longer used or wanted.

Another big issue which I believe is holding back reform and allowing abusive practices to flourish is the stigma attached to so called mental illness.

If over time we can learn how to see and redefine ourselves not as people who are ill, damaged or broken but just different, I think this will significantly alter the way that society at large perceives us. A lot of the stigma of mental illness will then fall away.

This in no way diminishes or trivializes the difficulties and challenges of dealing with our experiences. It is about learning to look at the overall problem from a different perspective and persuading others to do likewise. Of course it will take a lot of time and effort to persuade people to change their perceptions to this extent. It is also often not an easy task for many of us to change our perceptions of ourselves.

One comment

  1. Yes!

    if over time we can learn how to see and redefine ourselves not as people who are ill, damaged or broken but just different, I think this will significantly alter the way that society at large perceives us. A lot of the stigma of mental illness will then fall away.

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