1. health and fitness

20/20 Hindsight:
A History of the
Mental Health Legal
Centre Inc.
produced by
the mental health legal centre inc.
November 2006
Acknowledgements
The centre would like to thank all those people who not only contributed to the centre’s
development, but generously gave their time to provide material for this history.
An inestimable debt is owed to the volunteers and supporters named in this history who have
contributed over 20 plus years. To them (and any not named through oversight, to whom we
apologise) – Thank you!
Particular thanks are due to volunteer Martin Thomas, who worked tirelessly researching, collating
materials and tracking down and interviewing contributors (having previously performed a range of
other voluntary work for the centre).
The history is dedicated to centre allies who have died – Amanda Thomas, Jim Tempany,
Amanda Noseda, Ashley Colebrock and Ruth Nwankwo, and to the extraordinary people whose
resourcefulness, resilience and struggles with the legal and mental health systems are the centre’s
reason for existence.
The Mental Health Legal Centre acknowledges the kind support of Maddocks in the prepartion of this publication.
M H
L C
© Mental Health Legal Centre Inc 2006
ISBN 0 9578243 3 5
20/20 Hindsight:
A History of the
Mental Health Legal
Centre Inc.
people who know about the law are
better able to stand up for their rights
Table of Contents
7
Beginnings - and a fight for the centre’s life
22
Growth and Change
29
Volunteers
32
Management Committee
42
Legal Services
44
Mental Health Review Board casework
49
Test Case casework
52
Criminal Charges
53
Forensic Patients
56
Telephone Advice
59
Policy and Law Reform
60
Consumer Participation in Policy and Law Reform Work
66
Mental Health Act
68
“Governor’s Pleasure” Reforms
69
Sentencing
69
Complaint System Reform
70
Parenting Rights
70
Taser Campaign
71
Crisis Support Units
72
Proactive Policy
72
The Mental Health Review Board Project
73
Criminal Justice Project
73
Advance Directives/Living Wills Project
75
Community Legal Education
79
20 Years Of Thanks To...
Mental Health Legal Centre
“... The stigma associated with mental illness has to be experienced
to be believed... the psychiatric patient feels alone and helpless when
they find themselves being forced to take drugs that have harmful side
effects... Lawyers made me feel that someone cared what happened to
me... they made me feel that someone had some idea of what the system
was like. This greatly lessened my feelings of anxiety... Those lawyers
made a huge difference to the way I feel about myself and the system...”
- Client of Mental Health Legal Centre
“... Taking sides means not only arguing on behalf of another person, but also
genuinely seeing their point of view. This is often very difficult in mental health
because point of views are the very subject in question. If your point of view is
the view held by most of the people around you, then the chances are you will be
considered ‘normal’. If however, your point of view is unique, and you claim to
see things that most people do not, then you are likely to be considered ‘insane’.”
- Former Consumer Representative on centre Committee of Management
“They don’t do it with straight jackets anymore – they do it with injections.”
- Client of centre
S
ince 1987 the Mental Health Legal Centre has opened well over 4,000 ongoing casework files. Many
complex cases have involved over 100 activities including phone calls, research, letters and documents,
meetings and appearances. Amongst these have been clients seeking to challenge involuntary treatment
or discrimination, trying to retain/regain control over their own finances, ensnared in the criminal justice or
forensic mental health systems, pursuing action over sexual assault in psychiatric hospitals and many other
matter types. Centre lawyers have provided advice only on around 25,000 occasions.
Innumerable publications, from the core Patients’ Rights Booklet and Criminal Justice booklets to the
Medications Rights Kit, rights video and a myriad of shorter handouts and guides have been developed and
distributed. Countless information and referral contacts have been made. Hundreds of education seminars on
legal issues affecting people diagnosed with a mental illness have been delivered to inpatient groups, Consumer
groups, government, hospitals, university groups, lawyers, police, doctors, psychiatrists and others.
The centre has agitated with varying degrees of success on a large number of policy and law reform issues,
most of which remain on the agenda in one way or another.
Mental Health Legal Centre
The context for this? In the late 1980s outrage lead to inquiries into Lakeside Hospital, the findings described
by Health Minister Marie Tehan as “scandalous” and “not an isolated example but indicative of the culture in all
state-run psychiatric institutions”. In 1993 the Burdekin Inquiry report placed human rights abuses experienced
by people with psychiatric disability squarely on the agenda. Driven by particular concerns in Victoria, the inquiry
reconvened and produced a third report. More recently, a series of national and state reports and inquires,
the latest being the 91 recommendations of the 2005 Senate inquiry: “A national approach to mental health
– from crisis to community”, have highlighted how much remains to be done to realise people’s rights. Perhaps
there is some basis for optimism in two rights related developments in 2006 – the enactment of Victoria’s
Charter of Human Rights and Responsibilities and the finalisation of a draft United Nations Convention on
the Rights of People with Disabilities.
The most conspicuous general service provision shift over 20 years is reflected in the centre’s primary
casework area – assisting people challenging involuntary treatment at the Mental Health Review Board. In
its early years before de-institutionalisation took full effect, most hearings the centre acted in were in the two
major stand alone inpatient institutions – Royal Park and Larundel.
Now, those services are gone (along with the parkland which may have been the most therapeutic aspect
of care for some patients), inpatient services are mainstreamed and vastly more people receive treatment
in the community. The centre’s Board clients are now on community treatment orders. The centre certainly
welcomes the move from asylum to community. However, rights abuses, both relating to involuntary treatment
and otherwise, continue. Too often, also, the range of general legal difficulties people encounter connected
with psychiatric disability are linked to grossly inadequate supports and care in the deinstitutionalised service
system.
Mental Health Legal Centre
Beginnings - and a fight for
the centre’s life
I
n 1985 the Mental Health Advocacy Centre Project grew out of a series of meetings convened by the
Victorian Federation of Community Legal Centres to prepare a response to the state government’s rewriting
of the Mental Health Act 1958 .The group was convened by Niki Sheldon, then working for the Federation.
The proposed changes to Victoria’s mental health legislation, and the regimes governing services for people
with intellectual disability and guardianship and administration orders, signalled a welcome shift away from
a dependence on subjective clinical judgments towards a ‘due process’ approach. Such a shift theoretically
provided people with an expanded range of legal rights – but it was obvious to those with experience in the
field that much more than legislation was required.
Niki Sheldon
Gosh I can hardly believe that it’s twenty years since we started the first Mental Health Legal
Service in the country. It must have been around 1983 when I was employed by the Federation
of Community Legal Centres in Victoria as their ‘Executive Secretary’ and was approached by
a group called CAPIC. The ‘Campaign Against Psychiatric Injustice and Coercion’ wanted
assistance from some lawyers to scrutinise the proposed mental health laws.
I took the request to the next Federation meeting and most of the workers decided that they were
not interested in the subject but the meeting allowed me to work with CAPIC. Thankfully three
lawyers who were interested in mental health volunteered to assist. They were: Chris Richards,
Jacqui Flitcroft and Caroline Ryan. This turned out to be the beginning of a three year project.
While we were working on the new legislation and comparing it to other states and other
countries we supported our representatives on law reform committees at the Law Institute of
Victoria, the Legal Aid Commission of Victoria and the Health Department. Together we wrote
a detailed submission recommending changes to the draft legislation; convened a (very vibrant)
public meeting; presented our views on local radio and received the formal endorsement of our
submission by the General Committee of the Victorian Council of Social Services. Many of the
changes we proposed were accepted by the Victorian Government and we considered our ‘law
reform campaign’ to have been a success. The rights of people with a mental illness were finally
to have a legal base, and for the first time in our history, patients were not only to have a Mental
Health Review Board established but the law gave them a right to representation.
I remember us (Chris, Jacqui and Caroline) quietly celebrating the new Mental Health Act’s
passing when I suggested that we hadn’t really finished our work. The women looked a little
Mental Health Legal Centre
surprised and asked me what I meant. Well – we had managed to ensure that patients had
a modicum of rights but we also knew that many lawyers were not very keen on working with
people who had a mental illness. I was concerned that the quality of the legal representation at
the Mental Health Review Board would not necessarily be of the highest standard and cautiously
suggested that we needed another specialist legal service to be set up. The women raised their
eyebrows, sighed and agreed.
So we began the next phase of our work.
We decided that we needed a wide representation of community members on the ‘steering
committee’ as we had begun to understand the ‘politics’ of psychiatry. Through our law reform
work we had met many of the different players in the sector and most of them agreed that we did
need a new legal service – not only to provide the highest quality representation at the Mental
Health Review Board but to provide advocacy for people who had a legal problem because of
a mental illness.
It took many months, hours of debate and discussion but finally our steering committee had
representation from the Consumers of mental health services, the profession of psychiatry,
public psychiatric services and not-for-profit organisations. We developed a detailed submission
and incorporated our many letters of support and presented the proposal for funding to the
Law Foundation of Victoria (to fund an on-going three year evaluation) the Office of Psychiatric
Services and the Legal Aid Commission of Victoria (to fund the lawyer). Our submission was
a success and Jacqui Flitcroft was employed as our first project worker to develop our policies,
find the premises, incorporate the organisation and begin the employment processes for the
four full time workers.
Within the first year of the service receiving funding it tendered the evaluation to La Trobe
University; the education worker had published a mental health rights guide and leaflets about
psychotropic medications; people were being supported in and out of hospital and the legal
service was established.
Mental Health Legal Centre
I
n the course of developing the submissions on the Mental Health Bill, it became obvious that many
people with extensive experience in the mental health field felt that the most pressing need within the
current system was the establishment of some form of advocacy service for both patients and ex-patients
of psychiatric institutions. In addition many identified that the new Bill contained mechanisms (particularly
the proposed mental health tribunal) liable to be rendered largely ineffective without adequate protection of
people’s rights to advice and advocacy.
As a consequence of the repeated airing of these concerns, the submission on the Bill contained a
recommendation for the establishment of an advocacy service and a working party was formed to explore the
possibility of setting up such a service. This group included representatives from the following organisations:
The Federation of Community Legal Centres, Disability Resource Centre, CAPIC, the Brotherhood of St
Laurence, VATMI Industries, Broadmeadows Legal Service, Women’s Legal Resource Group, Legal Aid
Commission of Victoria, Broadmeadows Women’s House, Citizens’ Commission on Human Rights, Collective
of Self Help Groups, Psychiatric Clients’ Union and St Kilda Legal Service.
The working party identified essential protections for people detained under the Act that were not
available:
–
provision of legal services to people in psychiatric institutions - this was the largest obstacle in the
path of substantial improvement to the lives of people detained for treatment in Victoria. Existing legal
services lacked expertise on mental health issues, were impossible to access from the institution and
were not funded to act for this new population of people incarcerated under the Act who now had
the right to seek review and appeal their detention
–
provision of information to people on their legal rights, despite the obligation to provide such under
the Act
The absence to date of ‘natural justice’ in the law relating to mental health patients was a clear example of
how a specific body of law can be left behind while mainstream reforms progress. As had been seen with other
bodies of law when energetic, committed practitioners are able to concentrate on particular area of law, legal
knowledge of those areas increases, case law develops and fresh approaches are used to tackle problems.
The client community clearly benefits from the attention given to the area of law specifically affecting them.
The initial goals of the project were to: “provide advice and advocacy and education to patients, ex-patients
and to the community; to lobby government and monitor facilities such as providers of psychiatric care.”
Mental Health Legal Centre
Niki Sheldon, Chris Richards (Legal Aid Commission of Victoria) and Jacqui Flitcroft (Broadmeadows Legal
Service) produced the first of a number of submissions for the funding of a MHLC. Twelve months of active
searching for financial support for the centre followed. Funding became available in late 1986 for a three
year pilot project from the Health Department, Victoria Law Foundation and the Legal Aid Commission. The
funding sought was $635,518. Consistently with the perennially under funded status of community legal
centres ever since, the final allocation for three years was $379,881.
Chris Richards
The interesting part of this recollection for me was what was going on at the time. There were two
dynamics going, in terms of the politics of the situation and the centre itself. But before I go into
those I think that the underlying situation is that there will always be a need for a mental health
legal service, people are incredibly vulnerable when they have any kind of mental disability. There
will always be a need for advocacy for individuals and there will always be a need to actually
talk about policy for those who are most vulnerable in our society. That doesn’t change. What
does change is how you frame the lack of services we’re given. Back in those days it was ‘Lock
them up and throw away the key’, ECT was still on the agenda, and now it’s ‘Don’t let them in’.
‘Don’t give them services’ and ‘we don’t take responsibility for that’.
I was working at Nunawading Legal Service at the time. I was straight out of articles and there I
was “Principal Legal Officer” with three other lawyers – ridiculous, that young lawyers get thrown
into that situation. Ridiculous that young lawyers need to deal with the whole range of people
and legal matters that those legal centres bring in. And yet at the same time not so, because
they have an energy and perspective that’s quite fresh. And that’s one of the reasons the centre
got set up. At that time legal centres were still quite new, they’d only been operating for twelve
years, and for those of us who had worked in there and had big mouths and a lot of us did, we
worked hard and were passionate about what we were doing, it was relatively easy, and much
easier than it is today, to capture media attention.
And because we were relatively new we were able to say what we thought, whereas today legal
centres put a lot of energy and resources into reports which are very well researched, back
then we just used to sit around a table – ‘You do that page, you do that one... let’s go for it...
we’ll work with the partners we have, and at that stage it was the Church of Scientology (who
were very interested in health matters)... and then we’ll use it as a platform to go out to the
media, which is exactly what happened. Jacqui and Niki and I consulted with a group of people
Mental Health Legal Centre
10
who were interested in mental health – there
weren’t many because as an issue it was still
hidden, institutionalised.
The idea of the legal centre, initially, was to
be broad–banded and to certainly do the
legal stuff, but to be plugged–in to a variety of
Chris Richards and Jacqui Flitcroft at Centre Launch
things that were happening in the community that would be able to assist people in a better way
than places like Nunawading could. [Chris tells a story about a client (Pauline) who arrived at
Nunawading whose legal issue was a little unclear. Eventually it transpired that Pauline believed
the police had implanted a listening device in her person to monitor her activity, and that at night
when it was quiet it could be heard operating. Chris believes it may well have been tinnitus, but
that this was how Pauline had constructed the event.]
In Pauline’s case it was that the law could not help her at all. She wanted to take action against
the police for implanting the device. As her lawyer there wasn’t an action I could bring for her,
because I didn’t believe that was her problem. The fact that she was there sitting with me meant
there were no other relevant community centres around. There was no question that she had
a problem that required some assistance, but there was nothing around, that I could see, that
was going to assist her at all.
So that’s one of the reasons the centre came about – there were a string of clients like that
coming through the doors of every community legal centre. There was also the Catch-22 of not
wanting to have them institutionalised under the system that was there at the time, and only if
it were a life-threatening situation would anyone consider it an option (unless the client wanted
it). I mean goddamit Kew Cottages was still going. Ararat had a section called J-Ward – they
were hosing people down [to clean them]. It’s incredible how far we have moved since then.
So, institutionalisation as an option meant that people disappeared from view, and it meant
that the lack of accountability that prevailed then meant that all their desires, wants and needs
became subsumed in to the institution’s wants and needs, rather than their needs. In some
institutions it meant that they were being drugged during the day so that they would be easier
to manage. If they were fractious, or had particular dietary requirements this would impact upon
the way staff saw them as people, and again would be sedated, and so on. Clearly there was a
need for opening up of institutions and greater accountability. Unfortunately deinstitutionalisation
Mental Health Legal Centre
11
has proved to be an excuse not to provide adequate support and to leave people with awful
situations. If Pauline came through my door now, I still don’t know what I would be able to do
for her, I don’t know if there would be any services to help her.
Irrespective of what Ian [Proctor] did before the MHRB and irrespective of the individual advocacy
that was being done at the time, the fact that there was an organisation there, a couple of
organisations that were actively involved in mental health meant that people were switched on
to people having rights that needed to be respected, and that if they weren’t there might be
consequences. And that had an influence across the system that was really helpful. In some
professionals it just raised the question that there was another way of thinking about this. In other
“
...all of a sudden people
were talking about
people having rights...”
professionals it was, ‘Yes, we’ve wanted
this for ages.’ In others it was ‘Get fucked,
we’re not doing anything’. But the thing
was that the cultural way in which mental
health service was being delivered was
changing and all of a sudden people
were talking about people having rights, them having responsibilities to those people, and that
active consent had to be sought in situations, and there was a realisation that people’s needs
and wants were really important in the outcome of any treatment that was given.
The difference between legal centres now and then – the report we did then wouldn’t cut
mustard today. The CAPIC report that we did, we didn’t use it like that. It was like most legal
centre reports at that time, it said ‘these are the case studies, these are the problems, and this
is what has got to change.’ And you’d write it up very quickly. There wasn’t months of research.
There wasn’t months of consultation, of considering international models and choosing the one
that was best suited to the circumstances. It was much less robust than that.
The problems were pretty straightforward. We simply wrote what was needed to shift them.
Once that report was done, I remembered talking to a Sun reporter and the next day a doublepaged spread on mental health and its problems in Victoria and how it needed to be fixed. So
we used those reports as a platform into the media that actually helped lift those profiles and
those situations into a forum where things like actually asking for things like the centre became
much easier, because you had set the stage. So my view was that that report, it didn’t matter
what it said, it never mattered that the methodology wasn’t robust, as robust as it would need
Mental Health Legal Centre
12
to be today. The CAPIC report was adequate for its purposes and it achieved what it needed
to achieve.
At the time the centre was established I was a Policy Officer at the Federation and no-one in
legal centres at the time thought that a mental health legal centre wasn’t necessary. So noone regarded it as a competitor, and welcomed it as a specialist centre that was very much
needed.
Thanks to the group’s refusal to adopt a “wait and see” attitude with regard to advocacy and the new legislation,
the centre was able to employ its first paid worker, Jacqui Flitcroft, in December 1986, around the time the
Mental Health Act came into effect. Jacqui set up the permanent management structures, drafted operational
guidelines and arranged for the employment of staff.
Jacqui Flitcroft
Well, I am pretty surprised that the centre is still going, it was very precarious at the start. We
had to get funding from a number of sources to get started. It was hard to get people interested.
It was hard to get the legal profession interested. It was hard to get the medical profession
interested. It was hard to get funders interested. Government wasn’t particularly interested,
despite the fact that they were about to introduce the legislation. So I am surprised. I find it quite
gratifying that it’s still going. But I am surprised.
I came into it as a result of the government deciding it was going to review the mental health
legislation. Along with Niki Sheldon and Chris Richards, I believed that if they were going to
review it, they should be willing to provide legal representation to people who were subject to
that legislation. And there were Consumer groups around at the time (i.e. CAPIC) who were
very engaged in that issue as well. Niki and I did all the initial submissions for funding. I was
involved for the first six months to set it up, to get the committee together, to hire staff and set
up the constitution... and then I was over it by then. By the time I left it was not at the stage of
on-going funding, it was early project money, Law Foundation money.
Prior to the project I had been working at Broadmeadows Legal Service, and I had had some
cases involving people with mental illness. But there was also a very engaged and active group
Mental Health Legal Centre
13
“
the system of the time
was not fair, was not
sufficiently supervised,
and was not sufficiently
open to scrutiny”
of Consumers – CAPIC – they were a very impressive bunch of people, some of whom had
had very bad experiences, i.e. ECT, and they were instrumental, provided quite a bit of impetus.
But it was probably more the case that we believed people ought to have legal representation.
If you were going to set up a process, if you were going to lock people up and take away their
rights people ought to have legal representation - no matter how difficult that might be to take
instructions etc - people were entitled to legal representation. Chris and I probably approached
it from a lawyerly point of view.
We were very influenced at the time by people like Thomas Szasz, not that we believed there
was no such thing as mental illness, but that it was more of a labelling process, that it was not so
much about the people themselves but rather about how others perceived them. I’m not sure I
feel that way now, given the influence I have seen it has on families… We believed that we were
representing these people’s interests, we were not representing the family’s interests - there was
a welfare model and a health care system in place to deal with those aspects. At the time we didn’t
necessarily consider the broader implications on other people - we thought this is the specific job
of this group, to represent this particular group of people.
I think many funders hadn’t thought through the repercussions. To their credit, the government
of that time considered that there needed to be some sort of review process - that the system
of the time was not fair, was not sufficiently supervised, and was not sufficiently open to scrutiny.
But having done that, I don’t think they actually took the next step and say well you’ve put people
in that situation they are entitled to representation. And that came from the fact that most of
the departments were more on a social welfare model - they thought that if you represent this
group of people it was going to cause trouble. It was a very strong view that came through at
the time - ‘Why would you want to do that, why would you want to represent these people. It’s
going to cause trouble; it’s going to be expensive for no apparent purpose.’
The Law Foundation (Prof Sandy Clarke) and a few lawyers around at the time saw that it was a
valid proposal. Most psychiatrists didn’t want a bar of anybody being represented - again, once
again, with a few exceptions i.e. Peter Doherty - who was willing to be on the committee and
was willing to stand up and say that people were entitled to representation.
But really I think nobody had really given it a lot of thought. There weren’t a lot of precedents. You
couldn’t really point to anywhere else to say it had been done there. We had no evidentiary basis
Mental Health Legal Centre
14
“
the first group of
funders - it was a
pretty bold decision
on their part”
to say, ‘This benefits the system, or look this doesn’t cost as much as you think it does.’ And a lot of
people didn’t like the Mental Health Act either; a lot of relatives groups thought it was going to cause
trouble. The first group of funders - it was a pretty bold decision on their part.
The Law Foundation was pretty keen. But it was one of those things where we ran backwards
and forwards between people, until we could finally say ‘these people say they’ll give us this if
you’ll give us that’. I just remember it being a year of an endless round of submissions. It was
time-consuming to pull all the bits and pieces together and to try get a lot of the funding sources
to the table.
In some ways the legal centre was something of a side issue to the reform of the Act; there were
a lot of public meetings about what should be in the Mental Health Act.
Consumer groups responded favourably. The community legal centre movement wasn’t
particularly interested - it’s a movement with a lot of issues to cover and this wasn’t high on its
agenda - this isn’t a criticism, there were a lot of issues that they were involved in that I wasn’t
interested in. We’re talking about very busy people with very big caseloads - they didn’t stomp
on it as an issue, they just had other things they were focussed on. There were very few private
lawyers who were interested in the issue of mental health advocacy - but not a particularly
interested group either.
It was mainly Consumer groups, VCOSS gave a bit of support, and the Church of Scientology
(strange bedfellows). Look to the first management committee - that probably tells you where the
support was coming from. One of the clearest things was that we had to have a psychiatrist on
the committee - quite a few funders wanted to ensure we weren’t going off on some independent
legal frolic of our own.
They clearly wanted someone who had psychiatric expertise on the committee, and that was
quite difficult to find because psychiatrists were not interested generally speaking in having
legal representation before the MHRB, they just thought it was going to make work for them,
which was probably true, they thought it was going to cause trouble, they are not a group of
professionals who are used to having their professional opinion challenged, they were not a
group that was previously open to any sort of public scrutiny at all.
Mental Health Legal Centre
15
That’s why it was such a bold decision for Peter Doherty to put his hand up and get involved.
He always accepted that people were entitled to representation; he understood that he had an
obligation to explain his decision-making and be subject to scrutiny when he was incarcerating
people involuntarily. He could be quite difficult, but on reflection we were probably quite
naive about issues involving psychiatry and psychiatric treatment. We could have quite robust
discussions with Peter, and he agreed to be on the first management committee.
We had difficulty getting a lawyer because it was such a new area and because it was not an
area a lot of people would give a lot of thought to.
The centre started off primarily as representation before the MHRB - that was the big thing: if you
lock people up, incarcerate them against their will, then they are entitled to representation. Even
if they are in the grip of some psychosis and are unable to instruct, they are still entitled to have
the decision explained and put on the public record. And from the point of view of Consumers,
not incarceration, but treatment was the focus of their concerns. ECT was a big issue for that
constituency. And on a secondary level to try to ensure that people were represented before
the guardianship board, for similar reasons - they can have their money taken off them and have
their decision-making capacity curtailed. One of our main concerns was that we influenced those
processes [i.e. the way the Board went about conducting its hearings.]
The focus became test cases and cases where there was really legitimate concern about their
detention. Ian Proctor pointed out very quickly that the centre did not have the resources to
perform the level of representation the centre had planned, thus test cases became the focus
to build up the jurisprudence in the area.
The Law Foundation never funded long-term projects - they basically said that we’ll give you
enough to get started then you’ll have to look to other sources for funding. The people who
granted the initial funding were obviously supportive of the project, however the viewpoint was
that you really shouldn’t be on our books, you should be on the Department of Justice’s books
or the Legal Aid Commission’s books. So the centre really saw it as a grace period where we
would try to get as much done as we could and then be able to go back to funders and show
them the merits of the centre, ‘We have represented three hundred people, done a good job,
etc’.
Mental Health Legal Centre
16
T
he original Committee of Management consisted of 14 members – nine organisations and five individuals,
with Jacqui Flitcroft an observer for the Office of the Public Advocate. Organisation representatives were
Domenico Calabro (Federation of Community Legal Centres), Richard Berger (Disability Resource Centre),
Caroline Ryan (Legal Aid Commission of Victoria), David Griffiths (Citizens Commission on Human Rights),
Peter Doherty (State Psychiatric Institutions), Allan Rassaby (representing the Minister for Health), Joan King
(CAPIC), Margaret Tomkins (Community Mental Health Centres), Liz Gallois (VICSERV). Individuals were
Robin Hezky, Graeme Doyle, Lyndall Grimshaw, Kate Sommerville and Leanne Craze. Meredith Taylor and
Sue Brady are also acknowledged in an early report for their contribution as founding members.
The centre was opened by the Minister for Health, The Honourable David White on September 25th 1987.
The centre’s first staff were Annie Bracey, Administrator, Gaby Marcus, Education and Information Worker,
Maureen Boaler/Des Shead , Research and Policy Workers and Ian Proctor, Solicitor.
r David
h Ministe
First Mental
Health Revie
w Board Pre
and Health M
sident Neil R
inister David
ees
White at Cen
tre launch
es centre
unch
White la
Healt
In the inaugural Annual Report, produced in 1988, Chairperson Caroline Ryan thanked Professor Sandford
Clark of the Victoria Law Foundation and Julian Gardner of the Legal Aid Commission for their enthusiasm
for the project.
Mental Health Legal Centre
17
Work priorities in 1997/1998 were negotiations with funders, establishment of centre systems, creation
of a profile for the centre among community groups, government agencies and Consumers of psychiatric
services, organising seminars explaining the new legislation and patients’ rights, and developing a media
profile. Volunteer John Difford commenced work on psychiatric medications.
As has remained the case about half of the legal cases in the first reporting year related to involuntary
detention. Representation for clients at the MHRB achieved a 17% discharge rate, significantly higher than
the average MHRB discharge rate of 7%. This has also remained a consistent trend throughout the centre’s
history. Other casework areas included “treatment issues”, physical assault/theft, security patients, access to
files, employment issues and child custody.
The hard work of early supporters secured an opportunity for patient advocacy to develop alongside the new
provisions, for those affected to become involved in the shift to “due process” and to work for the establishment
of “ground rules” early in the process. It was hoped that early establishment of advocacy services would boost
patient and public confidence in the mental health system and the government’s commitment to reform of
that system.
Ian Proctor
First Centre Solicitor
Maybe the Mental Health Legal Centre gave me the job as the centre’s first solicitor after reading
a reference that said, “Ian was the person who was invariably given the tasks in relation to which
no established, or even reasonably obvious, work procedures existed”.
On 21 October 1987, the day of the first hearings of the Mental Health Review Board at Plenty
Hospital, it felt like a place where no established procedures existed.
In the previous weeks I had started work at the centre, I met the other three staff and the
Committee of Management, met Neil Rees, President of the MHRB, been to Sydney and
watched hearings under the New South Wales mental health legislation, done some reading
about mental health issues and met my first client who was to be the subject of the first hearing
of the Board.
Plenty Hospital was not used to a lawyer coming to take instructions from a patient. There was some
initial resistance by the Hospital to me being allowed to read my client’s treatment file and some mild
and understandable antagonism by staff toward me. This was quickly sorted out and settled down.
Mental Health Legal Centre
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We were on unfamiliar territory. The Mental Health Act was brand new, these were the first hearing
of their type in Victoria, there was little relevant case law and the doctors were well out of their
comfort zone, as was I. My client seemed the least concerned about the new procedure.
The reasons for decision, “In the appeal of MM an involuntary patient at Plenty Hospital” tells
most of the tale.
Dr AR asked that MM not be present while he gave evidence and “in all future hearings he
sought to give evidence to the Board in the absence of the patient”. He said, “it may harm his
on-going therapeutic relationship with his patients if he was required to say things about their
mental illness in their presence”.
Apparently, “Mr Proctor objected strongly to this application”. Hopefully, my recollection that I
did so politely is correct. Before these hearings I decided there was nothing to gain by being an
‘aggressive adversarial lawyer’. As I later wrote, “it profits no one if lawyers act in an adversarial
fashion… the staff believe they are acting in the detained person’s best interest… the patient/
client has a right to representation” and “if the client is not discharged from the hospital the
advocate can walk away from the situation, the other actors cannot.”
The Board rejected the application and MM stayed for the hearing, setting a precedent for
future hearings.
I made submissions about MM being presumed under the common law to be “sane” and the
burden of proof resting on the authorised psychiatrist. My more adventurous (and unsuccessful)
submission was that the authorised psychiatrist should be required to prove his case beyond
reasonable doubt.
The Board asked me for authority that the standard of proof in criminal matters was that of
‘beyond reasonable doubt’. I had none ready as this is a bit like being able to cite authority for
saying the sky is blue.
I am amused and still a little embarrassed to report that I spontaneously quipped, “Rumpole of
the Bailey!” After smiles were wiped from some faces and the moment had passed, Jon Faine
(counsel assisting the Board) suggested that a law dictionary may be a more conventional
source of authority.
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Unsurprising and appropriate precedents were set that, “it is incumbent upon the authorised
psychiatrist to ultimately satisfy the Board that a patient’s continued detention is necessary”
and “the Board must act with much care and caution before reaching a conclusion that we are
satisfied on the balance of probabilities that… continued detention is necessary”.
Dr RA and my client gave evidence. Dr RA’s evidence was strong. I submitted that, “there was
insufficient evidence that… continued detention was necessary for her own health or safety or
for the protection of members of the public”.
The Board was satisfied that the continued detention of MM was necessary.
I have no memory of the other case (or maybe two cases) I appeared in that day, other than the
person or people continued as involuntary patients. The hearings started at 10am, there was a
short lunch and ended late in the day.
I do recall being utterly exhausted as I drove from Plenty to the Mental Health Legal Centre to
report in.
Looking back I hope my work at the centre and later at the Legal Aid Commission of Victoria
was a positive contribution to which many others have added.
Mental Health Legal Centre
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T
he second half of the pilot phase, which ended in 1989, saw a continuation of the sort of work conducted
initially and an enormous amount of lobbying to secure recurrent funding.
The pilot phase finished at the end of June, 1989, and the task then became to secure ongoing funding
for the centre. In late 1989 half the funds were guaranteed through the Health Department. It did, however,
refuse to fund the legal positions because of what it claimed was a conflict of interest. The Attorney-General
indicated a desire to so, but claimed financial inability. The Legal Aid Commission believed its budget was
insufficient to allow it to start funding the operation of the centre on a recurrent basis and the Law Foundation
could not provide recurrent funding.
A mail out to supporters and stakeholders including private law firms, mediation centres, health services and
community legal services advocated lobbying of relevant Minsters. A media campaign was conducted.
There was attendance of approximately 100 people at a public meeting on 30 August 1989. Attendees included
many individuals and strong representation from Consumer and community groups and other organisations.
It was pointed out that under the World Health Organisation standards, all people whose liberty is threatened
through incarceration because of psychiatric disability, have the right to free legal representation. There were
two subsequent meetings. After what was described by Chairperson Leanne Craze as ‘a year of hard slogging
and moving from one crisis to another’, recurrent funding was secured. Carolyn Hogg, Minister for Health,
was thanked for her particular support. When further funding seemed an impossibility, she again and again
publicly expressed her commitment and encouraged the centre to persevere.
Finally, commitments were given by the Health Department and Attorney-General’s Department to provide
approximately half of the centre’s recurrent funds each. Those Attorney-General funds now effectively being
provided through Victoria Legal Aid’s Community Legal Centre program, that 50/50 health/justice breakdown
of the centre’s core funding continues into its 20th year.
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Growth and Change
B
y 1991 the centre had secured recurrent core funding from the Department of Health for two full-time
workers and their on-costs, and the Legal Aid Commission of Victoria (taking over from the Attorney–
General’s Department) for two full-time workers and their on-costs.
The 20th anniversary celebrates a relatively healthy financial position – the centre has recurrent funds for
5.9 effective full time staff and approximately one full time project worker. Substantial increases in funding
have included a half time position increase in 1997/1998 to coincide with the changes to the legal regime
affecting those found unfit to plead or not guilty due to mental impairment, and an additional full time position
from Victoria Legal Aid in 2001 to compensate for increased costs and for increased advocacy. Throughout
its history the centre has secured non-recurrent funds for various projects including from Stegley, Myer, the
Reichstein Foundation, the Law Foundation, the Women’s Trust and the Department of Human Services.
Early in 2007 the centre will be in a position to employ a Night Service Co-ordinator with an approximately
0.5 EFT recurrent funding increase from Victoria Legal Aid, a worker on the Living Wills/Advance Directives
project with funds from long time supporter the Reichstein Foundation and a part time financial counsellor
with one off funds from Consumer Affairs.
Though fundamentally unchanged, the centre’s aims have evolved over time.
Centre’s Philosophy and aims as at 1989/1990
Philosophy
To empower users of mental health services to take control over the basic elements of their lives by ensuring
people are treated with dignity and respect in the least restrictive environment.
Aims
1. To provide legal services of advice, representation, advocacy and appropriate referral for people having
or labelled as having psychiatric disability, who otherwise would not have access to those services.
2. To educate Consumers and relevant professionals and raise their awareness of Patient Rights and
the provision of the Mental Health Act.
3. To ensure that humane and appropriate treatment and care are provided in hospitals.
4. To improve the scope and quality of community services in addition to lobbying for funding for
alternatives and more appropriate services.
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The centre’s philosophy and aims as at 1995/1996 the centre unchanged except that:
–
the education mandate had extended to “. . . Mental Health Act and the law (in recognition of work
in a wider range of areas)
–
(3) had been changed to refer to “ . . . provided in the mental health system” (in recognition of
de-institutionalisation) and
–
(4) replaced with “To work on law reform and research projects that will raise awareness of the need
for rights for people living with mental illness”
By 2006 had evolved to:
Vision: To work towards empowerment equality, and justice for people having or labelled as having a
psychiatric disability.
Values: In all its work, the centre aspires to accessibility, equity, demystification and independence. We aim
for a legal community and system optimally equipped to deliver justice to people having or labelled as having
a psychiatric disability. We strive for mental health services which are least restrictive, and most humane
and appropriate. We will be client centred and respectful, act on instructions not perceived best interests,
and facilitate maximum possible participation by our community. We seek to facilitate self advocacy, power
through knowledge and systemic change. The centre is a safe, supportive workplace which maximises the
contributions of all.
Mission: To provide free legal services to people who have or are labelled as having a psychiatric disability
and have a legal issue in the state of Victoria.
Objectives:
–
To provide legal services of advice, representation, advocacy and referral to people having or labelled
as having a psychiatric disability who otherwise would not have access to those services.
–
Through community legal education, to achieve knowledge of and attainment of rights for people
having or labelled as having a psychiatric disability.
–
To advocate with and for people having or labelled as having a psychiatric disability on policy and law
reform issues.
–
To facilitate Consumer and some relevant non-Consumer specialist participation in all policy and law
reform work and base Centre’s positions on Consumer views.
–
To provide an effective and efficient organisational, administrative and human resources structure
that best meets the needs of users and staff (paid and voluntary) of the centre.
Mental Health Legal Centre
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–
To ensure that the centre has an adequately resourced, maximally participatory management
structure.
–
To ensure that the centre is as well equipped as it can be in terms of resources to achieve its
objectives.
–
Ensure that the centre is responsive to service users and potential service users.
Service Delivery Area: Victoria
Strictly instructions based advocacy is one of the centre’s strengths.
Viviana Cohn
Management Committee Member 2002 - 2005
The mental health legal centre has a vital role in the provision of mental health services in Victoria
because unlike all other services which aim to provide support, the legal centre provides advocacy.
Why is advocacy so important? As a migrant Jewish woman who has experienced prejudice that
others do not experience, I am acutely aware of the significance of taking sides. Taking sides
means not only arguing on behalf of another person, but also genuinely seeing their point of
view. This is often very difficult in mental health because points of views are the very subject in
question. If your point of view is the view held by most of the people around you, then the chances
are you will be considered “normal”. If however, your point of view is unique, and you claim to
see things that most people do not, then you are likely to be considered “insane”. The reason
why this debate is a health issue, rather than a simple political issue, is because people who
are brought to the attention of mental health services are often at great risk to themselves or to
others. Yet even within this space of discussion, the notion of risk, is a matter of interpretation.
After my many years of experience where I trusted mental health professionals, I have to now
say that if you come to me with a mental problem I will act as an advocate. I will take sides with
you. I will agree with everything you say, just to make you feel better because I know that no one
else does. And I will do everything in my power to keep the mental health system out of your life.
To keep medication out of your biological system. And to let you know that you are not alone in
your thinking. I will not support you, I will side with you. Although the Mental Health Legal Centre
does not go as far as this… I believe that the work you do is closer to meeting the needs of
mental health Consumers than any other organisation I have come across.
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The need for the centre’s three primary strategies – legal services, policy and community legal education is
clear.
Perspective of Consumer Consultant
Employed for a number of years at Forensicare, Victoria’s forensic mental health
service and also employed at Victorian Mental Illness Awareness Council (VMIAC)
I first became involved with the centre about ten years ago when I had a process with the Mental
Health Review Board. I thought it was very helpful.
When you consider the resources that the Mental Health Legal Centre has, which is very small,
considering the needs of Consumers. The things needed are systemic and legal advocacy
– that’s what we see at VMIAC. There are so many Consumers and we only have the Mental
Health Legal Centre – it is inadequate. I think you guys have done a good job over the years,
especially with people in forensic care. I think you run groups and this sort of thing which is
quite helpful.
I think a common problem in mental health services is people don’t have enough information
about the Mental Health Act. When they are in Thomas Embling Hospital they receive a package
about their rights. I think Forensicare is doing very well in this area actually compared with other
services. Probably they don’t do much. So it’s the importance of how to disseminate the legal
information especially mental health legal information - the importance of people having legal
information especially mental health legal information.
I think the Mental Health Legal Centre has got speciality in this area – legal expert in mental
health. So you are very different from Legal Aid and other community legal centres, which is
very important. For example some of our clients try contacting legal services when they are
talking about their experience in the psychiatric hospital – other lawyers out there don’t have
the speciality or the knowledge or experience.
It’s just the general treatment people get from the community – they don’t have enough
understanding of mental health issues. Especially the way they treat people who have mental
health issues – they just don’t take them seriously. Consumers need the Mental Health Legal
Centre to assist them to protect their rights and legal issues.
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There are many many cases of discrimination against people
with mental illness. I just find that the community attitude to
mental health Consumers has not changed that much and we
need education in the community.
Confidentiality is always a problem. There is a recovery movement
which is happening. And people are pushing for mental health
Consumers to get back to work. Being able to live independently.
Having expectations. I think Consumers themselves also want
to do it but the real issue is when they go for interviews, disclosing their mental health issues is
a big challenge. It’s all about how we work together to change community attitudes.
I think in the past few years people’s attitudes have changed, but it’s a slow process. One of the
most important issues for Consumers are financial – they have very limited income and some of
them really struggle with bank credit cards and loans and all this sort of thing.
A concern is the resources the centre has and having to select cases for representation. Sometimes
this is a bit disappointing for Consumers. Selecting cases rather than taking up everything.
The debt stuff is extremely important – very common problem. People get sick and then when
they start to recover they find themselves in a very difficult financial situation and this hinders
their recovery process. People have said they ask for help from the Mental Health Legal Centre
and they are told there is a selection process – you don’t represent all cases. This is not just
Thomas Embling people – generally. It is important to see it is a very limited funding organisation
which has responsibility for all Consumers.
I hope the Mental Health Legal Centre will be pushing for changes in legislation for forensic
mental health Consumers. I think the Crimes (Mental Impairment and Unfitness to be Tried) Act
1997 has been in for about ten years and I hope someone like you guys can look at it and see
if you can make some changes. The first thing is the repetitive process – people have to go
to Supreme Court five or six or seven times or more than ten times – just unnecessary. Also,
the average length of stay is almost seven years. If a person stays in hospital for that period of
time they are so institutionalised. Seven years can be like 50. Now that the Jardine program
has been decommissioned it’s going to take a while to establish halfway community places for
people to access.
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The Mental Health Act had a recent event about it here. People say the Mental Health Act is not for
Consumers, it’s for communities. People were talking about rights, and that the Act gives them
no rights. For example seclusion, the review of that process – I hope something good would come
out of that. Basically Consumers want to eliminate seclusion. At the moment there are procedures
in place which not many people follow. That’s the problem – it’s not about seclusion it’s about how
you do it. There was a death in seclusion and Consumers are talking about it.
Thanks Mental Health Legal Centre – you guys are great!
T
he increases in funding in 1997 and 2001 facilitated an increase in service provision across casework,
education and policy and law reform programs. The centre moved from an opening time to the public
of 10am to 9am and introduced a third weekly telephone advice session. Administrative Officer/Reception
coverage could be increased to fully cover opening hours. Essential matters such as locum coverage for lengthy
leave of lawyers and long service leave savings and some general increases in costs, could be covered.
In 2001 a “RRR” (Regional, Rural and Remote) project was undertaken, funded as a pilot by the Department
of Human Services. A solicitor was employed to train and resource RRR solicitors to represent people at the
Mental Health Review Board, starting in Ballarat. The centre also established a toll free number for RRR callers
and added two dedicated RRR advice lines on Tuesdays and Thursdays. Unfortunately recurrent funding to
move the project around Victoria was not forthcoming and the extra advice lines had to be dropped. However,
it is no coincidence that Victoria Legal Aid subsequently prioritised this work and in July 2006 commenced
offering duty lawyer services for Board hearings in all regional areas where the Board sits. The centre’s
project was clearly a catalyst for this, and the centre provided assistance and support to VLA based on its
RRR pilot. It is hoped that the centre will one day again be in a position to staff extra phone advice sessions
to cater for country callers.
As the centre has grown and accountability requirements have increased, it is essential to recognise the
significant increase in administrative and management support which accompanies growth and must also
come out of these funds. Staff and volunteers who have been involved in administration and operations
management deserve particular recognition. Great skill and effort go into meeting financial and other
accountability requirements and supporting, workers, particularly when non-recurrent project funds and regular
changes in project workers are such constants. Administration/reception workers have the difficult and often
unrecognised role of being people’s first point of contact. They are often the staff most exposed to callers’
understandable frustration or despair at the situations they are in and the limitations of the centre’s services
and the broader legal and mental health systems.
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Christina Bouniotis
Administrative Officer 1996 - 2006
I remember it clearly. I started working at the Mental Health Legal Centre on 26th April 1996.
So, really, this is sort of my anniversary as well! Working both at the old location in Abbotsford
and here in the hubbub of the City has been a rewarding experience. I have seen ten years of
staff members both new and old, coming and going, and that in itself is an experience. I have
had the pleasure of working with some wonderful people, both past and present. Of those
who are no longer here, I should mention Lynise Pamment (former Operations Manager), John
Tsiolkas (former Co-ordinator), Shauna Hearity (former Solicitor/Policy Officer), Jim Tempany
(former volunteer), Anthea Teakle (Administration Officer, who will soon be leaving us), Sarah
Murray (former Solicitor) and many more memorable faces.
Great recognition must go to our clients. They are the most patient, tolerant and hardworking
of us all. They come to the centre with small, medium or large legal issues, usually at the end of
their tether, having tried numerous other organisations for assistance. They are the true heroes
of the Mental Health Legal Centre!
I remember the migration of the NIS (National Information Scheme) database to the current
CLSIS (Community Legal Service Information Scheme) database, the forum for the changes to
the Mental Health Act, moving premises, changes to the position of Co-ordinator, changes to the
Patients’ Rights booklet, the creation of the Criminal Justice System booklet, the re-classification
of my job, countless staff meetings and AGM’s, the introduction of the centre’s 1800 number
for rural callers, the introduction of the Law Perfect programme and many more events.
The Mental Health Legal Centre Inc. has gone from strength to strength, thanks to all the
hardworking and dedicated paid workers, volunteers, work experience students and all those
associated with us.
What is also dramatically clear is the need for radical change if, to raise just one example, a significant
proportion of the 90% or so of people subject to Mental Health Review Board hearings not getting legal
representation are to receive it.
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Volunteers
I
t was noted in the centre’s first annual report that the wide publicity generated by the funding campaign
meant many more people and agencies began to call on the centre’s assistance.
From the beginning it was recognised that volunteer workers could have much to contribute to meeting demand.
The centre has benefited from the contributions of volunteers in many other roles in addition to management
committee membership. They have provided advice and representation, researched policy and law reform
issues, conducted work on client files and assisted in administration and community legal education tasks.
Joel Townsend
Research and Casework Volunteer 1995 - 1996
Some Mondays are exhausting. I attend to clients and at the Mental Health Review Board feeling
great responsibility. I can foresee how valuable my advocacy will be and the way in which it
will ensure that real questions are asked about my clients’ rights to make decisions about their
own lives. I come away from unsuccessful hearings feeling great inadequacy, wondering what
contribution I’ve made by turning up.
The great project of the Law is to seek out the appropriate balance between social control and
individual liberty. Mental Health Review Board hearings are part of the process of determining
how to apply laws which regulate when, and under what conditions, a person can be forced
to take psychiatric treatment. In that sense, they throw into sharp relief those large questions
about social regulation and individual freedom.
The law which regulates the imposition of involuntary treatment is law which seeks to strike the
balance between an individual’s right to freedom of decision and their right to health (through
the imposition of treatment). When I first decided I’d like to volunteer for the Mental Health
Legal Centre, I thought that it would be working in the liminal space between those rights which
would energise me, even when the work was hard and apparently fruitless.
Some Mondays are exhausting, and on those days it is not abstract debate or philosophical
dilemma which tempers my weariness. Rather, it is the gentleness, gratitude and generosity of
my clients and the dedication of the staff at the Legal Centre, which re-energise me. It is those
people who remind me of the importance of a listening ear and willing voice.
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I
n 1990 steps were taken to establish a lay advocates project. Among the injustices in the mental health/
legal systems that have remained fundamentally consistent over 20 years is the scandalously low level
of representation of people before the Mental Health Review Board. Despite the fact that Victoria Legal Aid
provide a duty lawyer service to all metropolitan hospitals for inpatients, and the centre represents people on
community treatment orders, representation levels are never above around 10% in any one year.
The lay advocacy project trained and supported non-legal advocates to represent people at the Board. The
centre received tremendous support from many people in establishing this project. A valued centre “constant”
has been the relationships the centre has with other service providers, workers and experts who have supported
centre initiatives, from management committee involvement to research and pro bono service provision. These
people have included private lawyers, mental health professionals and others and the lay advocates project
was a good example of this. With the support of such people the volunteer advocates underwent extensive
training and seven advocates began representing clients in 1992. Committing two days per week to the
project, these volunteers made a significant commitment to the centre’s work. A second round of volunteers
began training in October 1992, but the annual report of that year noted that “without further funding this
will be the last paralegal intake and spell the end of a most innovative and successful means of advocating
with Consumers of mental health services”.
In 1992/1993 the paralegal volunteers represented 80 clients at hearings. This was an extremely valuable
contribution, given that is roughly the number the centre’s employed solicitors appear for now (it must be
borne in mind though, that the centre’s shift to assisting people on community treatment orders has meant
each hearing is more resource intensive).
It was with the support and funding of the Stegley and Myer Trusts that the paralegal program continued
throughout 1992/93. A joint grant of $24,000 enabled the centre to run the second training course and
continue to lobby for recurrent funding from the Health Department.
Without access to further funding it became clear that staff could not adequately resource and support the
advocates and the program ceased. Volunteers reported an appreciation of the training they received that
hearings “went well on the whole” and that confidence grew with more appearances.
Says one advocate:
Personally I got a lot out of the program. It was very beneficial to me in many aspects. I recall the
training enabled me to advocate very effectively with many tribunals and other events. In fact I can
only recall losing two cases because of the very effective support from the centre. The training
still stands me in good stead.
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They also, however, struggled with the limitations of their roles as advocates and identified a need for significant
debriefing. In the words of one volunteer:
While the advocacy course emphasised giving the client her/his say at the hearing rather than
measuring our effectiveness in terms of “win/lose”, I was still unprepared for the sense of frustration
and powerlessness I felt as an advocate. . . the Mental Health Act was primarily created to address
some of the inequalities and injustices. . . in fact, in some instances the imbalance is only further
emphasised by the Board hearing, not redressed. . . in the process of taking instructions and
preparing a case, it is almost impossible not to be affected; sometimes the Consumer feels the
centre are the only people who listen. . .
In its 20th year, the centre has secured pilot funding for, and employed, a pro bono co-ordinator to expand
on the terrific pro bono relationship with law firm Maddocks. For three years they have provided two lawyers
to represent one client each per month and the hope is to involve as many other firms as possible to do the
same. It is hoped the centre does not revisit the experience with the lay advocate program, however, and
can secure recurrent funding to ensure this program’s continuation. Just as with the lay advocates, there are
significant gains to be had from such a program beyond realising people’s rights to representation. If properly
resourced and supported, lawyers gain a great deal from exposure to mental health law and the challenges
faced by those remarkable people living with psychiatric disability and the realities of the mental health and
legal systems.
The centre has also benefited from the pro bono partnership with Russell Kennedy. They have provided
considerable administrative and other support such as hosting forums and offering the assistance of their
librarians to reorganise the centre’s publication resources. To date the centre has been unable to prioritise
the work staff would have to do to begin this process, but will welcome any assistance it can get when the
time comes. It is not only supporting and resourcing volunteers which can be a challenge without adequate
resources, simply performing those parts of the tasks which must be carried out by staff has to compete with
other pressing priorities.
The greater tension implicit in increased use of volunteer or pro bono resources is the extent to which it
might absolve government of adequately resourcing essential services. It is troubling at one level that it took
two years to convince the government that an initiative to increase CTO representation, which would draw on
volunteers, should be funded on a pilot basis. This is in a context where, of the 10% of hearing where there is
representation, around 70% relate to CTOs, but only around 20% of total representation is for CTO cases.
The contribution made by centre volunteers over 20 years is inestimable, as are the costs to them. The
greatest debt is owed to those with or labelled with psychiatric disability who have contributed unpaid time,
Mental Health Legal Centre
31
revisited their own struggles, and, often, risked exposure of their status and all that might follow to further
the work of the centre.
The centre has a policy of reimbursement of volunteer expenses and fees for Consumer presenters at forums
and education sessions and, where funded, Consumer members on project steering groups. It is thanks in
part to the fact that most volunteers have not sought reimbursement of expenses that the centre has been
able in its 20th year to allocate non-recurrent money to a discretionary expense allowance for management
committee members. This is a by-no-means-permanent initiative not without controversy – another example
of the inevitable gap between aims and actuality borne by organisations like the centre, and more troublingly,
their clients.
Management Committee
From the original group of 14 with significant organisational representation, the centre moved to a more
conventional CLC size management committee of nine. The only constitutional requirements of those nine
is that they include three Consumer representatives and one staff representative with voting rights – and
all members demonstrate sufficient commitment to the objectives of the organisation. Members no longer
have to represent organisations. There has been healthy debate about the role of service providers and
Carers on the committee and exploration of conflicts of interest. Efforts have always been made to achieve
an appropriate balance of skills and experience amongst members, with lived experience of the mental
health system a high priority.
The centre is pleased to have a majority of committee members with Consumer experience at 20 years.
What has been equally pleasing throughout the centre’s history is the range of other skills and backgrounds
of management – lawyers, educators, mental health workers and people with involvement in a range of like
organisations. The responsibilities of such committees are great, and the centre has been fortunate to rarely
struggle to attract members or achieve quorum, and always had wonderful support in issues ranging from more
conventional management/financial/funder accountability/strategic matters to participation in community
legal education, policy and law reform activities and media initiatives.
Mental Health Legal Centre
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Bill Healy
Chairperson 1993 - 1995
I was on the Committee for a while – at least a year – before I became Chair.
My interest was very much in the law and mental health and it had been for some time, in fact I
had started a PhD in the late ’80s based on the Mental Health Act 1986. And I had been involved
prior to that in various things related to mental health – VCOS Advisory Committee, Adviser
to a Shadow Cabinet Minister – so I had this continuing involvement and sent a submission to
the Enquiry into Mental Health Law that was done in the latter days of the Thompson Liberal
Government.
And what attracted me was that under the constitution of MHLC half the members must be
Consumers and I thought that was a terrific kind of model of participatory democracy [in fact
that is not and has never been a constitutional requirement, but the centre strives for this in
practice]. I also knew Peter Johnston, and Peter was then working as the Legal Education
Officer or Policy Officer in the early days. So that was another enticement to get involved. So it
had these kind of connections and I thought it was a terrific organisation. And I liked the work
that they did, both in terms of individual advocacy but also the systemic advocacy. That and I
was firmly of the belief that if you’re going to have a proper review process people need to be
properly represented.
In those days we placed a lot of emphasis and put a lot of effort into its paralegal program, which
sadly disappeared (although I can’t remember why).
Now I think the other issue that came up, there was a crisis - a perennial crisis - around funding,
and at one point at about the time I came on the Committee, the Kennett Government came
to power. They decided to de-fund, there was a whole movement to de-fund, all advocacy
organisations. John Patterson [head of DHS at the time] made a famous speech at some
advocacy seminar somewhere where he said, ‘As far as I’m concerned advocacy is all piss and
wind’. He was quite crude in his language – that was one of his less crude ones actually. There
was this whole move under Marie Tehan as Minister for Health to de-fund advocacy programs.
The Office of the Public Advocate was on the point of being closed in 1993. The speech by
Patterson expressed the government’s view as a whole.
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The earlier crisis around the MHLC was who would fund the centre – it was half-funded by the
Attorney-General [Department of Justice] and half by Health and neither wanted to pay their
half, believing that the other should pay it all. That was a perennial problem, and add to that the
Kennett Government threatening to get rid of advocacy – because they saw advocacy services
as just causing trouble, which is often what advocacy services try to do.
So that was the era that I joined the Committee of Management. So for me, my personal motivation
was to try to protect and fight for the things I thought were extremely
valuable and the Legal Centre being one of them.
Why didn’t Kennett go ahead with the changes to advocacy? – There
was a lot of bluster. It was an incredibly turbulent time to be involved in
public sector work. At the time it was crisis, crisis, crisis. Looking back it
was just cowboy behaviour – “What’s this? Oh we can get rid of that”,
that kind of un-thought out systematic attack.
But there were still some people inside the system who were able to get
some things to happen, like the closure of the institutions has been done
moderately well in Victoria, and though there are still great holes in the
mental health system, what a lot of people don’t realise is that if you go back to the 1980s, it’s a
bloody sight better now than it was then. And just in terms of access, you’ve now got reasonable
access no matter where you live.
Financial viability was a key issue for the centre and whatever we did that it continued to get
funded. Sometimes the Committee of Management’s focus was just to assist the people who
were working at the centre, you know, getting submissions in on time.
The location, physically of the MHLC – moving further down Johnson St.
Trying to get up more and more educational campaign type approaches. Caz Healy was working
as the education officer then, and she got funding from Reichstein to develop the whole system
of pamphlets including all the information about medications and DHS. This latter point got us
into some trouble because people at the mental health branch of the DHS said they shouldn’t
be published because they weren’t official DHS pamphlets, they threatened cuts to funding
if we went ahead. We got out a set of them but they were never distributed to the extent they
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were supposed to have been. The official material available about medications was very limited
and given that one of the huge drivers of quality of life of patients in mental health system is
medications and their side-effects, benefits and costs, we did this project which involved doing a
lot of work with Consumers to get Consumer views of medications and to incorporate those into
the information kit. You would have thought we were attacking the sanctity of life or something
– people tended to get very upset about it. That was an example of the type of projects – trying
to advance those kinds of things.
We also ran a conference, indirectly, here with the National Centre for Socio-Legal Studies, I
did a few projects through them and one of them was to run a conference on law rights and
psychiatry which was run here at La Trobe.
An issue for the centre was “we aren’t public enough and making enough trouble. If we are a
legal centre with an advocacy role, then we ought to be publicly seen and known and causing
trouble.” Generally there was some frustration on the part of the lawyers who believed they the
weren’t supported enough to do their work, and on the other hand others were saying we weren’t
doing enough public advocacy, responding to things as they arose.
The most important thing that the MHLC achieved 1993-95 was that it survived, and went on
and continued to exist, I think that was a major achievement, all whilst more or less hanging on
to its original vision – Consumers and professional on the Committee of Management – case
work, advocacy and education. Even though there was some disagreement about the mix and
the balance, it still kept going. When I look back, it’s a miracle it survived.
It’s entrenched now. But it wasn’t, not earlier. I’m surprise it survived the early-90s that’s the
time when I think - because of the funding battle between the two funders as to who should be
doing it, and the Kennett Government and the attack on advocacy and the de-funding of lots of
organisations – how it survived through that is a bit of a miracle. That it’s still going now isn’t a
surprise, but the early-to- mid-90s was a critical time.
At that time, a few eminent QCs said ‘We offer pro bono work to mental health organisations
/cases, to challenge law and so on.’ And I thought that was a terrific opportunity to take cases
to higher levels of the court hierarchy, but nothing came of it. And I, to this day don’t know
why. At the time what was said was that there were no Consumers who were willing to be the
subject of that much attention, and that’s understandable, but I was always a bit skeptical of
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that because I would have thought there would have been more than one or two Consumers
who would have welcomed the opportunity. Most wouldn’t, of course. Most wouldn’t want to
be on the front page of the paper for being part of a test case; however, there would be some
who would want to pursue the matter. But pro bono QCs don’t come down with every shower,
so that felt like a missed opportunity.
There was also a sense of restriction on the work you could do because there was a poor level of
funding, and that continued to be a sense of frustration during that time. To which there appeared
to be no solution, and I assume to which there still isn’t a solution, because it continues to be
poorly funded. And that it didn’t get a stronger profile as am advocacy organisation remained a
frustration, part of that was ‘the times’ – fear of being de-funded. But the resources just aren’t
there to mount really good campaigns. It was constantly ‘We must do something about this
issue,’ but then the next issue arose before much could be done.
I’m still frustrated by the perception that some people have of the MHLC – they see it as kind of
negative. Out in the sector there is a bit of the view that the MHLC is a bit of an anachronistic
kind of thing, setting impossible demands that can’t be met. And I think that’s a great pity.
Through my involvement with the centre I certainly learned a lot about working with Consumers
in ways that have been important down the road. One of the organisations that I’m presently
involved with is the Richmond Fellowship, and one of the things that I’m very pleased we have
achieved as an organisation over the last several years is getting a much stronger Consumer
participation in virtually every aspect of the organisation. And I learned a lot about the Mental
Health Act – how it worked well and how it worked poorly. But mostly it was the practical
experience of Consumer participation – coming to value that.
Some organisations function better if they continue to grow, but advocacy groups perhaps
need to be operating around the edges – they are by the role they take on a little on the nose
– they say, “Hey, why are you doing that? That’s wrong. You should be doing this.” Increasingly,
government’s don’t want to be hearing that. Advocacy organisations are always going to be
marginalised, essentially. The present size of the MHLC can be a good thing because it can
act as a ginger group - it can stir things up. Probably, well possibly making it more attractive
to Consumers. However, if it was a lot bigger it could do its job better. But however again, if it
was a lot bigger, it would have a lot more government funding, then it wouldn’t be doing its job
better, because it would be compromised.
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Lisa Brophy
Management Committee Member 1991 - 1993 including brief term as Chairperson
and 1996 - 2004 (Secretary 1997 - 1999 and Chairperson 2000 - 2004)
Although my formal involvement with the centre did not begin until I was elected onto the
committee in 1991, I tend to claim an interest in the centre since the beginning. I will always
recall not being elected onto the committee at the first annual general meeting when the crowd
was spilling out the doors of the old Johnson Street building. I was a young, keen social worker
in mental health in those days and my experience with Consumers in both the community and
forensic settings and further studies in Policy and Law fuelled my interest in mental health law
and my commitment to the importance of obtaining both individual and systemic advocacy for
mental health Consumers.
In those days the work of Niki, Jacqui and others was inspiring for someone like me. The Mental
Health Legal Centre was a central component to the changing landscape of mental health
services post 1986. By the time I came on to the committee in 1991 the centre had, despite
its youth, already established its credibility in providing much needed education and training
services, casework and policy development. In the years of my involvement I was privileged
to work with some wonderful, talented, dedicated staff members and committee members. I
suppose I was there for a lot of the middle years and it is, mostly, a positive story – of growth
and innovation. There was also the consistency of being able to produce a highly sought after
and valued patients’ rights booklet that I know is now sorely missed by Consumers, staff and
Carers and it represents an injustice and denial of the importance of this publication for so many
people that it was unavailable in hard copy form for almost two years due to lengthy negotiations
with Victoria Legal Aid over copyright and funding.
The committee represented, to me, a wonderful opportunity for collaboration between Consumers,
mental health service providers, academics, lawyers and other people interested in mental health
law and legal centres. It was a stimulating and sometimes challenging environment.
As a committee member it always seemed of value to be someone who was a service provider.
Potentially this could have represented divisions, but in my experience, mostly, we were
always building bridges. For example, with the VMIAC, Consumer Consultants and other legal
practitioners. This enabled us to draw on a wide variety of expertise and there were many times
when I was overwhelmed with gratitude for the wisdom and dedication of my fellow volunteer
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committee members. At times it was very hard work and time consuming. So I suppose at this
20 year mark it seems worthy of a reminder of all those hours that so many people have given
to the centre as volunteers.
Hopefully there will be future attempts to improve rural community access to representation and
the centre can aim towards all Consumers who are attending the MHRB to have the much needed
advocacy they deserve – both as individuals and as a marginalised and increasingly oppressed
group. There are new barriers replacing the walls of the institutions. Ongoing rationalisation of
service delivery and increased emphasis on risk management are two powerful sources of threat
to the rights of all Consumers and potential Consumers of mental health services. The work of
the MHLC is as important today as it has ever been.
Keir Saltmarsh
Centre Committee Member 2002 - 2004, Chairperson 2004 - 2006
I remember well seeing the Patients’ Rights Booklet standing out amongst other brochures
displayed on an acute ward shortly after being made an involuntary patient. How could I possibly
be an involuntary patient when I voluntarily allowed the police to take me to hospital?
The Mental Health Legal Centre Patients’ Rights Booklet was the only publication at this time that
made complete sense in a setting that seemed devoid of sense. This booklet clearly explained
my rights. The Mental Health Act was defined as it related to me and hospital orders were easy
to understand. The appeals processes were listed and a range of agencies that could directly
assist me were printed in black and white.
At this time, I found myself dismissing the nice brochures produced by non-government
organisations and health agencies as their kind words tried to help me feel better about myself
and explain a condition that I may or may not have had. I needed legal advice. I needed to know
what the Mental Health Act had in store for me and I got it in spades from the Mental Health
Legal Centre.
Victorians and West Australians are fortunate to be able to access the only two Mental Health
Legal centres currently in Australia. For those of us who have journeyed through the psychiatric
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system at one time or another you need to know your rights. How to exercise these rights, what
can and cannot be done therapeutically, with or without your permission and how to appeal
decisions made on your behalf. Patients’ rights are often the only tangible assets afforded to
someone who is confronted with a mental illness in a psychiatric hospital.
I knew very early on that if I were to champion the rights of peers and align myself with a nongovernment organisation, it had to be the Mental Health Legal Centre.
I like many watched the centre grow from a distance. I along with thousands of other Consumers,
Carers, family and friends have needed legal advice. As many Consumers have done before me,
I too became a member of the Mental Health Legal Centre and applied to join the committee of
management. I’m grateful I did. It fast tracked my recovery on several occasions. It provided me
with insight into my illness. It allowed me to work collaboratively with experts, both Consumer and
legal and together we continue to deliver improved services across the whole organisation.
Apart from Consumer specific advocacy groups, the contemporary model of inclusion of
Consumers some twenty years ago, on the Committee of Management and the employment
of expert Consumers as employees has been an outstanding success. We have provided a
model that works, one that will continue to work and one which will allow other Consumers to
perhaps feel that the dreadful journey that is often experienced has been worthwhile and can
in fact be celebrated.
There is much to celebrate about the Mental Health Legal Centre in its 20th year. There still exists
a massive gap in appropriate delivery of services to those who are mentally ill. To recognise the
contribution made by all who have made the centre what it is today, is to celebrate in advance
the service that Consumers of tomorrow are so lucky to be able to access.
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Legal Services
As an employee solicitor for 15 years, solicitor Barbara Shalit has the longest association with the centre.
Barbara Shalit
Centre Lawyer 1991 - 2006
I commenced employment with the Mental Health Legal Centre in June 1991 working officially
three days per week. As with all community legal centre positions however, this really meant
that I was working five days per week. The centre was located in Johnston Street Fitzroy in an
old Victorian shop-front building. At that time, Brunswick Street and Johnston Street were just
making the transition from a working-class suburb to a more stylish area for young professionals.
There were still a number of rooming houses in that area and the centre operated very much as
a shop-front for people who were homeless or had recently been discharged from a psychiatric
hospital to a rooming house in the area.
The centre often dealt with people’s legal problems on the spot and had to deal with legal
problems which had reached a crisis. A number of our clients would often come to get free
coffee and tea and have somewhere to sit.
When the centre moved to Abbotsford we lost the drop-in nature of our work to a large extent.
However, we were co-located with the Attendant Care Coalition and VICNORD. The Action
Resource Network was also located in Johnston Street Abbotsford and the centre was able to act
in partnership on disability issues with these organisations. The workers at these organisations
were very skilled in working with people with a number of disabilities and gave us a greater
breadth of knowledge relating to issues surrounding disability. Hopefully we were also able
to assist them with our expertise. The centre did work on a number of projects together both
formally and informally and I think the cross-pollination was useful to all the organisations.
Our move to the city has ironically encouraged more clients to use the centre as a drop-in facility.
A number of factors may be relevant here. We are more centrally located for the metropolitan
area. Courts and the central office of Victoria Legal Aid which are both located in the city refer
clients to us. There has also been an increase in us providing a service to rural clients. This
does seem to coincide with our move to the city, but it may have, more to do with the funding the
centre received from the Department of Human Services to install a 1800 number and to fund a
rural pilot project for Mental Health Review Board hearings and a dedicated time for telephone
legal advice to be given specifically to clients from rural areas. Although the pilot project did
not receive further funding from the Department of Human Services, I believe the rural project
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did leave a legacy for the rural community. Even though Victoria Legal Aid has set up a number
of offices in various rural areas around Victoria, we still have a significant number of clients from
rural areas seeking legal assistance from us.
There are three reasons why I have continued to enjoy working at the centre after 15 years, a rare
feat for any worker. Firstly our clients continue to inspire all of us. They have been surprisingly
supportive of receiving a legal service which is clearly under-resourced. Clients have had to
have cases adjourned solely on the basis that there is no solicitor available to assist them on a
particular day. They may telephone seeking legal advice and again have been told that they will
need to wait until a solicitor is available perhaps the next day. In all of this, clients have shown
incredible patience as well as appreciation. One client who would conventionally be regarded as
“difficult” has brought Christmas presents for all the staff over a number of years. Her recognition
that our legal service is not just provided by a solicitor but all the workers at the centre shows
a consideration that a large number of “mentally well” clients do not have.
Secondly, the diversity and challenges of the legal issues that people with mental illness face
makes the work intellectually challenging. The centre’s initial focus on inpatients and Mental
Health Review Board hearings has extended to assisting people with criminal law problems,
family law problems, child protection issues, as well as dealing with the multi-faceted areas
in which people with mental illness face discrimination. Hopefully, the centre will continue to
be funded to provide a comprehensive legal service that goes beyond representation before
the Mental Health Review Board. Clearly the ramifications of criminal law proceedings, child
protection proceedings and discrimination in employment and by services have as significant
a consequence for people with mental health issues as involuntary treatment. Also, providing
such a service reflects the reality that our clients now reside in the community.
Thirdly, the change we have been able to effect because of the nature of community legal centres
in looking at the role of law from an integrated policy, education and casework perspective.
Some examples of this have been:
–
the adoption of the centre’s “Equality Before the Law” submission which was incorporated
into the final report of the Law Reform Commission of Australia in 1993.
–
after extended negotiations with a president of the Guardianship and Administration
Board, practice was changed so that legal practitioners and people who the centre selfrepresented would be able to have access to their files before a hearing.
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As early as 1990 the tension between providing legal assistance on a case-by-case basis and a “test case”
approach was identified. Some observed that the former was not necessarily the best use of the resources the
centre has, and to undertake large civil actions and run test cases should be the major priority of the centre.
Others felt strongly that people should be entitled to assistance on an individual basis.
The centre’s approach has been to do the best it can by simultaneously:
–
Seeking to reduce the violation of rights and increase accessible legal processes through policy and
community legal education work and lobbying for increased resources; and
–
Strategically prioritising the matters the centre takes on in response to a range of factors which can
be broadly categorised as demand, availability of assistance elsewhere and likely impact of assistance
for the individual and more broadly.
Mental Health Review Board casework
An unfortunate aspect of prioritisations and the reality of finite resources has been the 2006 introduction
of a means test for Mental Health Review Board representation. This was a decision that was hotly debated
amongst centre lawyers with some dissention. The newly introduced $15,000 of disposable assets test is
significantly more generous than the test for individual grants of legal assistance by Victoria Legal Aid, but
the need for it at all is concerning.
There is a small but dedicated group of private solicitors who charge barely more than a legal aid grant will
pay, and there is great benefit in private solicitors working with centre clients, particularly when the centre is
in a position to provide any mentoring or support they may request.
Ultimately, though, no one should have to go without or pay for assistance to seek to realise fundamental
rights such as freedom form involuntary treatment.
What difference does legal representation make to MHRB hearings?
Views of centre Mental Health Review Board Client
I found them very sympathetic, very thorough, very patient. They understood and helped me
understand what was going on. They didn’t tell me, or put words into my mouth at all. Very willing
to meet me at a place that was convenient to me. And I found them so helpful. It can be really
daunting. I had not had anyone to go with me to the Board hearings until I got a social worker
from Impact to come. But before that I wasn’t aware that anyone was available. But they have
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been so good. I really appreciate the Mental Health Legal Centre. And the Consumer Consultants
are very important to tell people they can get legal representation.
Oh, having a lawyer makes a huge difference. You feel helpless. You feel helpless anyway
because, let’s face it, the Board don’t know you at all. They only see your appearance. It must be
very daunting for some people and the psychiatrist half the time is telling lies and exaggerating.
You feel very very helpless – you do.
I have been involuntarily hospitalised on four occasions and put on community treatment orders.
Each occasion I have come before the Mental Health Review Board I have felt lost and alone
and totally at the mercy of a system that I felt was corrupt: my only hope was that the lawyer
representing me would spend some time with me before the hearing, get to know me and see
for themselves that the evidence written in my file was at best exaggerated and sometimes
downright lies. I have been represented by three lawyers (two from the centre and one from
Victoria Legal Aid). All three have been absolutely wonderful. They have spent time with me
beforehand, they have read my file with me.
These lawyers made me feel that someone cared what happened to me without being sentimental.
They made me feel that someone had some idea of what the system was like. This greatly
lessened my feelings of anxiety. I would like to thank those three lawyers - they made a huge
difference to the way I feel about myself and the system.
Our present laws give psychiatrists the power to force people to have these drugs that cause
painful side effects. With me I find psychiatric drugs make my life miserable, causing me serious
lack of motivation to do anything; they cause me to feel suicidal and to feel despair when these
feeling are totally alien to me. They have power to lock people up in psychiatric wards with very
little to do, away from their family, with young people concerned for their children, their job and
their property.
At present I choose to travel to Geelong [from suburban Melbourne] every three months to
consult with a private psychiatrist. He allows my general practitioner to take care of my daily
needs. She telephones him if necessary.
I would just say, you know, please keep up the good work and please hang in there.
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“
you know, you can
really be there in the
hearing and you can
put someone’s instructions
in a legal way.”
The perspectives of advocates appearing before
the Mental Health Review Board
Overall I don’t think that the clients feel that the hearings are particularly useful, they don’t get
anything very positive out of the hearings, although whilst waiting for decisions I try and raise
positive points for them, as to how they have gone and explain the process.
Well, the whole thing really varies according to the members as to whether an explanation
or the process is actually explained to the client by the members and whether or not any
sort of feedback is given at the end of the hearing, and in my experience that happens rarely.
I think clients feel it as a less traumatic experience because the attention is focused probably more
at me than at the client and any difficulties with the arguments are sort of drawn to me, so the heat
is off the client. In that sense it’s an assistance to the client to have someone advocate for them.
The objectives (as an advocate) are to see that the law is applied to them, further to that there
are a number of objectives. To see that they get a fair hearing. That their views are conveyed. To
empower the client, there are a number of things that the client has told you that they feel that
they may not be able to express themselves and they want to get across to the Board. To achieve
some sort of improvement for them. If they’re complaining about medication there would be more
discussion about listening to the client’s views if the client was wanting a change of medication or
a reduction of medication. Also if the client wanted a different sort of treatment, if they want to be
with a private psychiatrist rather than with the public system, to be able to convey that and get that
done at a hearing…. And to get them discharged if the criteria are there for them to be discharged.
You know, you can really be there in the hearing and you can put someone’s instructions in a legal way.
To some clients the hearing’s really powerful for them, to actually have the hearing and to really
nut out the issues, and be heard by the Board and have their story told, and things like that.
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W
hilst approximately half of the centre’s casework has consisted of Mental Health Review Board advice
and representation for 20 years, what has constituted the other half has varied. Areas in which the
centre has worked have been family law and child protection law (assisting parents in relation to their children),
guardianship and administration orders, issues with state trustees, criminal matters, work with Forensic
Patients (people found not guilty due to mental illness), health system complaints, Freedom of Information
and privacy and discrimination law.
One area in which the centre once worked but now provides only general advice and referral is civil litigation.
In 1989, for example, the centre commenced an action to recover damages against the Department of
Health and Community Services on behalf of a client who had been sexually assaulted by a staff member in a
psychiatric hospital. Negotiations were unsuccessful and the matter could not be settled under the conciliation
provisions of the Equal Opportunity Act. The centre issued County Court proceedings. The matter ultimately
settled with a payment of compensation.
During the course of acting for this client, Victoria Legal Aid made a policy decision not to fund civil litigation.
This included ceasing funding for cases that had obtained a grant of legal assistance. Although this case
had strong legal merit, the centre could not carry the financial risk if the client was unsuccessful and costs
were awarded against her. Reluctantly, the centre had to refer the case to a private solicitor and the matter
ultimately settled with a payment of compensation. Although the centre had done the substantial legal work
in this matter, the private solicitors charged significant solicitor-client costs and the client was understandably
unhappy about the deduction of these costs from her award.
The decision of Victoria Legal Aid not to fund civil litigation at that time was a retrograde step in providing clients
with access to justice. Although private law firms have been prepared to act in cases with a strong prospect
of success on a “no win no fee” basis, private firms also had to make commercial decisions as to whether it
was financially viable for the firm to take on a legal case, even if it had strong prospects of success. If Victoria
Legal Aid had continued to provide legal assistance to community legal centres on a “disbursements” basis,
significantly more clients would have had access to justice to pursue civil claims where they had suffered
injuries as a result of negligence by psychiatric service providers.
When Victoria Legal Aid stopped funding these matters it became impractical for the centre to conduct
such litigation and the centre began referring people to firms with relevant expertise who would theoretically
provide free initial advice and act on a “no win no fee” basis in matters with a significant prospect of resulting
in compensation. The interaction between casework and policy work is extensive and applies in this area
as in all others – the centre lobbied unsuccessfully in 2003 to oppose the “reforms” to civil litigation which
have made access even more difficult by reducing time limits and imposing minimum thresholds to recover
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pain and suffering damages - in the case of psychiatric injury seemingly double
that for physical injuries.
Initiatives such as the Public Interest Law Clearing House and other pro bono
co-ordination schemes have made some difference, and there are many lawyers
who make a tremendous contribution, however, the centre can have no great
confidence in referring clients to provide firms that they will necessarily receive the
advice and assistance they should. Facilitating referrals constitutes an appreciable
proportion of legal work and it is simply not known whether some of the people
referred obtain assistance from the firms or agencies recommended.
The centre continues to assist people in making complaints to the primary alternative dispute mechanisms
for centre clients – the Office of the Chief Psychiatrist and the Health Services Commissioner. Those
mechanisms are far from adequate for a combination of structural and other reasons. The former in particular
lacks independence. Neither gives people a right to a hearing at a tribunal like body.
Though it happened some years ago, and the Health Services Commissioner has certainly been open to
feedback and appears to have greatly increased access to conciliation, one case is particularly illustrative of
a range of concerns. A woman was stripped naked in seclusion and left naked for two and a half hours. The
Health Services Commissioner found that the treatment was “in the circumstances, not unreasonable” and
refused to facilitate conciliation. The client, due significantly to her own resourcefulness and the support of the
centre, VMIAC and Law Aid, secured the services of private solicitors and obtained judgment in the County
Court against the mental health service. This case illustrates the extraordinary tenacity and resourcefulness
of centre clients seeking to secure their rights in a grossly inadequate health and legal environment.
The centre acknowledges and hopes that a similar matter taken to the Health Services Commissioner now
might be handled differently. The centre remains concerned, however, that people do not receive adequate
assistance in making such complaints or appropriate responses from the bodies purportedly there to avoid
people having to go through the expense and stress associated with court proceedings.
The centre does experience some positive complaints resolution and reported in 2004 on an encouraging
outcome from the Office of the Chief Psychiatrist – a request to intervene and prevent a person from being
transferred to a service against his wishes received a prompt and favourable response. This Office, like the
Health Services Commissioner, is willing to listen to the centre’s representations. However, two cases from
2006 indicate how much room there may be for improvement in that office’s processes, quite apart from its
troubling lack of independence and conflicting roles.
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In one, a young woman received no assistance over a complaint that she had asked for toilet facilities before
she was placed in seclusion, had been denied them and was left in a position where she urinated on the floor
of the seclusion unit. In another matter, the Office was unprepared to intervene until many contacts had been
made by the patient and his family and legal action threatened. This was a case in which the Mental Health
Review Board had ordered a residence condition be removed from a community treatment order and a person
transferred to a new service and allowed to live with relatives. The service refused to comply.
There are rights to appeal against the decision of the Health Services Commissioner under the Health Records
Act. The centre has utilised the limited review rights available under the Health Records Act and discrimination
legislation to reverse decisions of the Health Services Commissioner. However, current legislation is very
restricted as to the decision which can be legally challenged to a tribunal-like body. This is again, an issue
of access to justice.
As with all the law reform issues on its agenda, the centre continues to seek any opportunity to advocate for
change of these processes at a systemic level.
Test Case casework
E
xamples of test case matters in the Mental Health Review Board jurisdiction include:
–
A matter in 1993 in which an entire ward appealed their status on the grounds that conditions were
so bad treatment was not available. That case influenced a decision to close the ward in question.
–
A Supreme Court victory in 2000. Unlike the Board or VCAT, the Supreme Court accepted the
centre’s position that, if a person’s community treatment order expires without being extended, the
person is no longer an involuntary patient. This case exemplified for the centre one of the features of
this jurisdiction. In the balance between a person’s right to refuse treatment and a perceived need for
treatment, it can be a great struggle, and source of concern to Consumer and advocate alike, to assert
the former. The case led to an amendment to the Mental Health Act. It is to be hoped its statement
that “The Court should be constrained to interpret the Act in a way that least infringes upon the civil
rights of a person because of the stigma surrounding mental illness” will also lead to a more rights
orientated application of the Act.
This case also indicates how far the centre has come in one sense. Though the Health Department
expressed reluctance to fund us due to conflict of interest, and this case was a “win” against the
Department and resulted in their paying the centre client’s costs, the Department has continued as a
primary joint funder and supporter of new initiatives such as the pro bono co-ordinator.
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–
In 2002 the centre represented a client before the Mental Health Review Board regarding his
involuntary detention under a Restricted Community Treatment Order. It was argued that the continued
imposition of a Restricted Community Treatment Order on the client was unduly onerous, given the
minor nature of the criminal offence. It was argued that if the client had not been mentally unwell
at the time of the commission of the offence, he would most likely have completed his sentence.
The Board accepted that the continuation of the Restricted Community Treatment Order was unduly
onerous and discharged the client completely. The Board also made recommendations that there
should be a review of the legislation relating to Restricted Community Treatment Orders. This has
subsequently been done and Restricted Community Treatment Orders no longer have an indefinite
operation.
Test cases in other areas of law have included:
–
A case in 1992 before the Psychosurgery Review Board (PRB) where a hospital sought an order
from the PRB to perform psychosurgery on a client without her consent. The Board refused to give
its consent for the performance of psychosurgery. After this decision, the Mental Health Act was
amended so that psychosurgery could no longer be performed on any person who had not given
informed consent accordance with the Act.
–
A case in 1994 at the Human Rights and Equal Opportunity Commission under the Disability
Discrimination Act (Cth) 1992 against an insurer for its refusal to provide a client with travel insurance.
The insurer sought to rely on the exclusions section of their policy which stated that the policy would not
cover any client claim arising from “anxiety or depression, mental or nervous disorders or insanity.”
In a related matter in 2002 the centre represented a client in an unlawful discrimination case before
VCAT regarding an insurer’s failure to refund a client the cost of her airfare as a result of her suffering
a mental illness. The matter was settled at mediation with the client receiving a full refund of her airfare.
As part of the settlement, the insurer wanted the centre to sign a release that it would no longer act
for clients against that insurer. Fortunately, the insurer did not maintain this position as a requirement
for settlement.
–
In 1996 the centre represented a client in an application before the Supreme Court, that he be readmitted to practice as a Solicitor. The client had been struck off from the role of barristers and
solicitors as a result of a deficiency in his trust account. During the period of the deficiency, the client
was suffering from an untreated mental illness. The Supreme Court allowed the client’s application.
S.E.K.Hulme QC and W.R.Ray QC both appeared on behalf of the client on a pro bono basis. This
was many years before a formalised pro bono scheme existed and demonstrated the long-standing
good will shown by barristers to clients of Centre.
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–
First at the Social Security Appeals Tribunal in 1994 for people on hospital orders, then at the SSAT
and Administrative Appeals Tribunal from 2000 to 2002 for forensic patients, the centre successfully
challenged attempts by the Commonwealth to deny access to the Disability Support Pension. As well
as contributing to the jurisprudence through AAT matters, the centre assisted the Welfare Rights
Unit in Queensland in establishing this entitlement in the Federal Court. These cases illustrated the
value of the networks of which the centre is part, on a statewide and national level. Since 2001 the
centre has co-ordinated a national network of mental health lawyers from community legal centres
and legal aid commissions.
–
A case in 2000 at the Victorian Civil and Administrative Tribunal (VCAT) under the Equal Opportunity
Act (VIC) 1995 against two psychiatric services for failure to provide an interpreter at the time of
recommendation of the client for involuntary detention at a psychiatric service. The client was detained in
a psychiatric service for 24 hours before an interpreter was provided to her at the time of the examination
by the authorised psychiatrist. At the examination, the authorised psychiatrist discharged the client.
The complaint was initially lodged with the Health Services Commissioner who declined the complaint.
Fortunately, this case could be challenged successfully under discrimination legislation on the basis
that the client had been discriminated against on the basis of race, by the failure to provide an
interpreter.
–
Cases in 2000 at the then recently established Forensic Leave Panel where the centre successfully
argued for an interpretation of the relevant legislation opposed by the mental health service. In one
case it was accepted that a person returned to custody pending an application to have their noncustodial status revoked could apply for and be granted leave. In another, the Panel accepted centre
submissions that a provision should be interpreted as allowing access to a greater amount of overnight
leave than had been previously determined.
–
As far as the centre is aware, it ran the first case to seek a review of the decision of the Health Services
Commissioner to decline a complaint under the Health Records Act 2001. The client had complained
against two services regarding an interference with her privacy, by the unauthorised release of health
information to a third party. The Health Services Commissioner had refused to deal with the complaint.
The centre requested the matter be referred to the Victorian Civil and Administrative Tribunal. The
complaint was upheld and the client received financial compensation from both services.
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Criminal Charges
C
asework demand has always out-weighted capacity and in some areas the centre has developed additional
specific intake criteria. In relation to criminal law, for example, at 2006 the priorities are matters where
a mental state defence or diversion outcome can usefully be pursued. The centre continues to lobby for an
end to prosecutors seeking to circumvent the recently enacted mental state defence provisions, and the
improvement and expansion of the criminal justice diversion scheme. As in relation to areas such as fines,
there needs to be a greater emphasis on diversion before a person is charged in the first place. An illustration
of the sorts of outcomes specialist advocacy can achieve is a recent case in which prosecutors agreed to
drop charges against someone who had prior convictions and had in fact been to jail.
Two other recent cases the centre has been involved with are also illustrative:
A 19 year old male from a country town was charged with theft of an alcoholic drink valued at
$2.50.
The centre referred him to a local lawyer who suggested a guilty plea. The client was not happy
with this. As are so many centre clients, the young man was hospitalised around the time of the
incident and sought a longer stay and other assistance which was not forthcoming. In most of the
cases the centre handles it is clear to police that the person was unwell at the time of the offence,
when charged. On many occasions after investigating the incident the police transport the person
to an acute psychiatric setting.
The police were not prepared to drop the charges but recommended diversion. The client wanted
the matter over quickly and chose diversion instead of pleading not guilty due to mental illness.
The difficulties he was experiencing had a cumulative affect on this young person and he took his
own life not long after the matter was settled.
Young people with mental health issues are vulnerable and isolated, mental illness is stigmatising and poorly
understood by the community and the police, it is difficult to get assessment treatment and support when
you are asking for it and involvement in the criminal justice system is just another burden that people with
psychiatric disability do not need.
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A country woman had a longstanding history of schizophrenia, borderline personality disorder and
poly-substance abuse. When unwell she often experienced hallucinations and delusions, many
involving police.
She once tried to enter a police station with a pocket knife. She said she wanted to be shot by
police. She threw the knife away when sprayed with capsicum spray. The police found she was on
a community treatment order. They took her to hospital, where she was admitted and charged with,
amongst other things, being armed with a weapon. Having initially said the case was suitable for
diversion, the informant then changed his mind when that the matter went before the Magistrate.
Some weeks later the police were outside her home, arresting another person. She approached
police allegedly with a steak knife concealed under her t-shirt. They told her to mind her own
business. She said to them three times, “Do you want your throat cut?” As she was clearly unwell,
after her arrest she was taken from the police station to hospital.
The informant vigorously pursued the charges and indicated that if a defence of mental impairment
was entered the matter would be sent up to the County Court. In both matters the woman was
unable to get legal advice locally and sought advice from the centre. She was advised of her defence
of mental impairment for both matters. She had numerous prior convictions and charges in times
when she was unwell so diversion wasn’t available.
She had a supportive psychiatric report and, it seemed, a perfect defence. However, when the
matter was heard she was very distressed, particularly as she had once been placed on a Hospital
Order by the same Magistrate, and decided to plead guilty and accept a two year bond without
conviction, with the condition that she continue treatment and take medication.
Forensic Patients
A
s well as assisting people with criminal charges, the centre has acted for many forensic patients – people
found not guilty of offences due to mental impairment under the reformed “Governor’s Pleasure” system.
Clients are represented in applications at the County and Supreme Courts to vary or revoke their supervision
orders, or be granted extended leave. Soon after the new regime commenced the centre was accepted by
Victoria Legal Aid as an alternative provider of legally aided services to this group.
The centre is frustrated by the unnecessary burden this system places on clients, it seems increasingly.
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Amongst the lessons from the experiences of those detained previously under Governors Pleasure and now
under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 are:
–
Dangerousness is notoriously difficult to predict, however the courts are entrusted to both assess and
predict future behaviour when sentencing any person. They have sufficient discretion to do so and
existing appeal mechanisms are presumed adequate to hold them to account. However defendants
identified as dangerous and a risk to the community (by way of example under the CMIUT Act) must
convince the court that with treatment and rehabilitation the risk to the community is of minimal
significance. This requires strong supporting evidence from a treating practitioner with some history
of involvement with the person.
–
Independent medical evidence is difficult to obtain and not valued by the courts compared to the
evidence from those involved with treatment. There are few accessible practitioners with expertise - the
exceptions, and Dr Lester Walton deserves particular mention – are indispensable. The likelihood of
obtaining an independent assessment is very low and the value given to these by the courts limited.
–
The centre is keenly aware of the difficulty in convincing decision makers that the level of risk is
sufficiently low to allow the person to move into the community - no matter what supports are in
place. The courts consider that the availability of ongoing support is always speculative and subject to
compromise if resources are limited. It is difficult to persuade them of the reality that the civil mental
health system is empowered to involuntarily treat people whose illness poses a risk to themselves or
others, and these people will always be a high priority for service provision. Courts invariably err on
the side of caution when considering these applications.
–
Recent experiences of centre clients in the Supreme Court highlight some concerns:
• An order was continued as the Judge expressed concern that area mental health services may
not be available to a person beyond his turning 60, when eligibility for service transfers to geriatric
mental health. There was no assurance from the Department of Human Services that he would be
a priority for treatment particularly as he is fully compliant with treatment and poses no significant
risk of harm to himself or any other. This man lives a quiet solitary life though he participates in
a meaningful way as an accepted member of his neighbourhood. He has a caring and attentive
family. There have been no incidents of concern to his treating team since the offence took place
over 30 years ago, and despite being detained in prison without treatment for 17 years. He was
a ‘model prisoner’ and is now model citizen. He remains patient and optimistic but will have to
experience the anxiety and humiliation of returning to the court for further reviews seemingly
for the rest of his life.
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•
Another order was continued - although the person had a supportive family the Judge noted that
they were elderly, and when they died he was not satisfied that the area mental health service
would provide the level of support needed.
–
The courts are obliged to consider the views of the victims and the victims’ family. To appease them
they have been known to introduce onerous and unnecessary conditions.
•
One person was living in the community successfully for a number of years with conditions that
he comply with treatment. Upon a review the victim’s family requested that he not travel through
their town. There was no evidence from his treating team to support the need for the condition,
nor indeed any evidence heard on the condition at all, however the Judge complied with the
request.
–
The Attorney has a role in assisting the court in CMIUT matters and opposes nearly every application
under the Act, predictably fearful of adverse media. There is troubling imbalance in a system where
the parties are two government departments (DHS and the Attorney-General), the Office of Public
Prosecutions (albeit now generally playing a very minimal part), and the forensic patient. The
legislation in fact did not originally include a specific role for the Attorney-General as a party – but
its representatives persisted in attending early matters and making vigorous submissions, and the
legislation was amended.
Despite the challenges of this jurisdiction, the centre has assisted with many positive outcomes for clients
and is committed to ensuring that client’s voices are heard in the process, people’s privacy is protected and
least restrictive, damaging outcomes are achieved.
One example is a case in 1999 in which the centre successfully applied to have a client’s supervision order
entirely revoked. The client had been found not guilty on the grounds of illness of killing her child. The court
was prepared to revoke the order after only five years. Significantly and unusually in this jurisdiction, revocation
was granted against the views of the treating psychiatrist. It was also pleasing to see that the views of the
case-manager, a psychiatric nurse, were given particular weight. Legal Aid refused to fund a barrister in this
case, despite the fact that it turned on lengthy and skilful cross examination. Barrister Rob Williams, who has
long been an outstanding and generous advocate for centre clients, acted pro bono.
As in all areas of work, too, these clients are remarkably appreciative merely of having supportive, rigorous
representation even where there is no tangibly significant “win”.
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Telephone Advice
T
he primary intake process for casework clients is via the three times weekly telephone advice sessions.
Unless the matter is MHRB representation or an urgent matter, people are asked to call and speak to a
solicitor at one of those times. If, however, people would prefer a face to face appointment that is arranged.
Originally most of the centre’s clients were in hospital, so initial phone contact was most practical. Today, there
is still a strong view that this is an effective model – especially given that many callers will receive advice and
referral only.
Centre solicitors alternate covering the phone advice sessions. It is centre policy that only solicitors give
advice. Volunteer lawyers have assisted in this role from time to time. A person well qualified to address this
subject is lawyer Leon Doyle. Leon provided advice as a volunteer for more than two years before becoming
the most sought after and least remunerated worker in the centre’s history (for a number of years he has
been paid for three hours per week to conduct one advice session per week).
Leon Doyle
Telephone Advice Lawyer 1997 - 2006
My involvement with the Mental Health Legal Centre began back in 1997 when I volunteered
to work one day a week as a solicitor to complement my work as a community support worker
at the St. Kilda Drop In Centre - a day centre for people living with a mental illness. At that time
the MHLC was located at the unfashionable end of Johnstone Street, Abbotsford.
I was warmly welcomed by staff and after initial training and supervision including a handful of
Mental Health Review Board hearings I settled into regular telephone work. As a consequence,
the telephone advice service was expanded from two to three afternoons per week and I have,
by and large, taken responsibility for the Friday afternoon advice session. As I have often been
working with an all female staff group on that day the nickname, ‘Man Friday’ was inevitable, I
suppose.
Over the nine years I have worked at the centre, I estimate that I have given advice to over
1,500 clients. Whilst I am familiar with the voices of a number of clients I have set eyes on only
a handful – a most unusual situation.
A legal telephone service has its advantages and limitations. Our service has the advantage of
being free and relatively accessible with three sessions a week, a 1800 number and reverse
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charges call option in place as well as access to telephone interpreters when required. Giving
advice over the telephone may also suit some clients who live with agoraphobia, social phobia
or anxiety disorders.
The limitations basically revolve around resources, in particular time and personnel. With three
telephone lines operating over a two hour period there is a limit to the number of calls one can
handle. It can be difficult at times to work efficiently yet thoroughly in the face of generally high
demand for services. To boot, there are a number of complicating factors.
The first is the difficulty of obtaining clear and relatively concise instructions. Many of the callers
want to tell their story, they want to be heard. At times, one feels more like an oral historian than a
solicitor! But it is important to acknowledge this need. Often this involves the expression of very
strong feelings and emotions: anger, sadness, frustration, isolation, fear and uncertainty. Even
years later, some continue to be affected by the circumstances of their first hospital admission. A
large number feel powerless and not listened to in our mental health system. Many are not aware
of their rights or how to exercise them. I find that it is important to acknowledge and validate
these feelings at the outset before identifying the legal issues and advising.
One also has to be vigilant in winkling out non target group callers seeking free legal advice.
The standard refrain when confronted is: “Well I mightn’t have a mental illness now but if this
blasted issue isn’t sorted soon I reckon I’ll get one!”
Another limitation of the service relates to my own limitations. A very broad range of legal
matters are covered through the advice line service and it is important to be aware of the gaps
and deficiencies of one’s own legal knowledge. Humility is important and on occasions one will
need to ring back at a later time after doing some valuable reading or research. So I find I am
constantly learning. Attendance at training sessions and legal seminars can be very useful. I
have found over the years that there has been a growth in the publication
of booklets and other information on a range of legal issues. Of course, The
Law Handbook is an invaluable resource as well as our own stalwarts, ‘The
Patients Rights booklet’ and ‘Mental illness and the criminal justice system
in Victoria - Your Rights-’, among others.
Being part of the Community Legal Centre family with its range of generalist
and specialist services is also a great boon. Referrals to and from other
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CLCs are common and to the benefit of clients. The Federation is also a useful resource for
training and information sharing.
I am also indebted in my work to my colleagues – to administration staff who assist with calls
and solicitors who are generous in sharing their knowledge and who support in many ways.
When viewed broadly, the telephone advice service is very much a team effort.
One of my concerns in doing the advice line service is that there is precious little feedback from
clients in relation to outcomes of their legal issues on which I have given advice. One example
of this is the exercising by clients of their rights under the Mental Health Act including making
complaints and the right to a second opinion from another psychiatrist. As one feels at times that it
can be difficult to see the forest for the trees this sort of feedback could be very useful in identifying
deficiencies, problems and gaps in the legal or mental health systems which could be taken up by
our policy workers to research and to work towards systemic change. Such feedback would also
assist our solicitors in providing better quality advice and service to future clients.
What changes have I noticed over the 9 years I have been involved at the MHLC? From the legal
perspective, I have noticed a steady increase in calls relating to fines and PERIN Court matters
but, by and large, the calls continue to raise a broad range of legal issues with the majority of
calls concerned with legal issues in the mental health system such as Mental Health Review
Board hearings, Community Treatment Orders, complaints, medication issues and rights in
general. On the flippant side, I have noticed a subtle change in staff attire and shopping habits
since our move to Collins Street!
On one occasion I was given some interesting careers advice at work. At the completion of a
particular Friday advice session the cleaner, Tony, popped in to the office. He was intrigued
about my work and asked me how I ended up practising law so I regaled him with yarns about
the years of study, Articles of Clerkship and sundry matters. He was also interested in the advice
line work and other issues such as hours, paperwork and pay.
At the end of this Tony concluded, “Mate, you’re a bloody idiot! You should be doin’ those
telephone sex line calls! You don’t need no training or an office, you don’t write up notes or
nothin’ and you’d make heaps more money!””
What could I say?
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Policy and Law Reform
“From little things, big things grow. . . . . . .”
- Sue Armstrong - artist, Consumer activist and centre committee of management
member/treasurer 1991 - 1992 and 1996 - 1999 (and many others, Kev Carmody and
Paul Kelly amongst them,) put it so wisely. . .
A
mongst the strongest arguments in favour of community legal centres is their capacity to advocate at
a systemic level, informed by the struggle of clients for justice. To some extent increased funding and
support from philanthropy and the creation of dedicated policy worker and lawyer/policy worker positions,
have facilitated greater capacity to conduct this important work. However, from the centre’s inception it has
been a priority – and resources are still by no means adequate to the task.
Throughout its history, the centre has employed a range of strategies to systemically advance the rights of
people with psychiatric disability – lobbying, media work (from resourcing journalists and other spokespeople,
through print, radio and television comment, Press Council complaints, letters to the editor and publication
of articles), research, written and in person submissions, regular liaison with stakeholders and membership
of advisory and similar groups.
In the first annual report, issues grappled within this “portfolio” included involuntary admission, security
patients, informed consent, hospital treatment, ECT, medication, community care, Consumers as victims of
sexual assault, sentencing and “the discriminatory practice of transporting psychiatric patients to hospital in
police vehicles”.
The priority areas identified in the 2005 - 2008 strategic plan are Advance Directives/Living Wills, Health
Service Complaints Process Reform, MHRB Reform (including increase in representation levels), Community
Treatment Order Rights, Police Involvement, Parenting Rights, Safe Services, ECT Law Reform, State Trustees
Reform, Guardianship List Reform, Sentencing and Criminal Justice Reform, Prisoner Mental Health Rights
and Justice Environments/Therapeutic Jurisprudence.
It might be discouraging to see, for example, that “discriminatory police involvement” remains a priority. It may
well be that there is more, not less police transport in 2006. Also, that “involvement” over the last 20 years
has included 16 fatal police shootings from when Project Beacon was implemented to the end of 2005.
Seven of those people had a recognised history of mental disorder. In this period the Crisis Support Unit, a
multidisciplinary specialist response unit, was also axed. On the up side though, there is a greater awareness
of and agitation about the broad problem of police becoming de facto mental health professionals, and Victoria
Police have identified the issue as a “strategic commitment and service delivery priority for 2006/2007” (and,
the centre hopes and is assured, beyond). The centre has played a significant part in this.
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Safe and separate services, including for women and girls who are victims of or fearful of sexual assault has
also been a priority almost since day one. As with all policy issues the centre pursues a range of strategies
including individual casework, involvement in networks, submissions to inquiries, public forums, requests for
systemic inquiry by the Equal Opportunity Commission, research, media comment, constant vigilance for a
suitable discrimination test case and a pledge to donate a Sue Armstrong fine art masterpiece for the foyer
of Victoria’s first specialist female only comprehensive psychiatric service. Sue has been a tireless researcher
and advocate for separate female services since 1990. A recent conciliation with the Health Services
Commissioner looks promising in terms of policy changes at the level of locks on inpatient bedroom doors
and the possibility of some separation of bedrooms at one service. Also, the centre may well have influenced
the recent announcement of a women’s only service at the Royal Women’s Hospital.
Consumer Participation in Policy and Law Reform Work
I
n 2006 Centre Chairperson Keir Saltmarsh presented a paper on Consumer run services at a national
Consumer conference, informed to some extent by the centre’s experience. Whilst the centre is far from
Consumer run, from day one it has been a key objective to involve people who have been affected by the
mental health system and base policy and law reform activities on their views and experiences.
Participation by Consumers on the Management Committee is an important aspect of the centre’s Consumer
participation strategy. Also, policy and law reform work is directly informed by the experiences of casework
clients and involves both clients and others with experience of the issues in consideration. Amongst the
centre’s most crucial links are those with groups such as the Victorian Mental Illness Awareness Council,
INSANE and the Consumer Consultants employed in mental health services. Centre workers organise strategic
consultations with groups and individuals on priority issues.
The Consumer voice in the development of policy and in promoting the views and experiences of clients has also
been greatly enhanced by David Ring as policy worker from 1999 to 2001 (having served as a Management
Committee Member and centre Chairperson prior to that) and since 2003 by Merinda Epstein.
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David Ring
Management Committee member 1992 - 1999 including one year as Secretary and
three as Chairperson, Policy Worker 1999 - 2001
A lot of people were against us renting the City premises; they said we were spending too much
money. But when our clients go there and they see a well-dressed lawyer, they’re getting the
service that they should have. One of the great things about our new premises is that people
can go up to MHLC which is on the same floor as an accountant, a hair-replacement clinic, it’s
a real mainstream kind of thing, where they’re greeted by professional office people dressed
professionally. There was a time when that was seen in community legal centres as really
bourgeois, but what the centre actually found was that our clients really responded positively to
it. Just because a client is a mentally ill person doesn’t mean they don’t have the same sort of
ideas about professional service. It was a real mainstream kind of concept that they can come
to the building without people saying ‘that is where the disabled people go.’
Spending time with these guys – [David works as a social worker at St Mary’s House of Welcome,
a psychiatric disability rehabilitation and support service working with particularly disadvantaged
people] – homelessness is awful, drug use is awful and people who are unwell often can’t
make the right choices. Often the centre gets the most well and the most affluent Consumers
– I wouldn’t think that most of my clients would use the MHLC, they don’t even turn up to their
CTO hearings. The interests of Consumers and Carers don’t have to be viewed as antithetical.
What we need as a society is to set-up a Carer’s legal centre.
The MHLC gave me the skills to sit in on a committee, to think about policy. I gave them a different
Consumer voice, one that wasn’t anti-psychiatry. For many years I steered a more conservative
view about legislation. The centre asked me – not for my opinion as a Consumer whether this
law was good or bad – but from your knowledge being a Consumer what do you think of this
law. So it wasn’t just about me being unwell, it was about me having knowledge about the issue
in question. They asked for a viewpoint based upon my overall experience, rather than whether
my last visit to the hospital was good or bad. The person who had dealt with the mental health
system, not the illness that was being treated, that was the focus at the centre. They were always
interested in my ideas as a Consumer when a particular mental-health issue arose.
Now, I’m into similar simple things, I’m very Consumer centred in the way I write my notes. I never
say to my clients, ‘what are you diagnosed with?,’ I would say ‘the system often gives people
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labels . . .’. So then they don’t have to say ‘I am’, they can
say ‘the doctor gave me this label.’ So my language about
labelling is something that has come from my involvement
with the centre – as an approach.
As a Policy Worker one of the big things that the centre worked on was electro convulsive
therapy (ECT). Even though the centre didn’t get the law changed that people get an automatic
review over ECT, we did get the Act changed to say that the Board could make suggestions
about treatment, which they didn’t have. I think that was basically a concession to us over ECT.
We spent a good twelve months on that, we wrote it up, we took it on the road, we had a big
conference where one hundred and fifty people turned up, we got all the players involved – the
Office of the Public Advocate, the Chief Psychiatrist – we didn’t do it as a big anti-psychiatry
thing, we actually worked within the system. The centre isn’t there to challenge the scientific
data about ECT, as a legal centre we were there to discuss the myths behind ECT, as well as
the lack of education people have about getting it.
It was real grass-roots development, but it was not done so ideologically that it forced the
conservative psychiatric system to reject it. It may or may not work, that’s not our problem,
people are really scared of it. What are you going to do to make it better? The centre wanted
people to be able to appeal it.
On a personal note, I was probably the first seriously mentally ill person as Chair. They never
questioned that. They never said ‘he won’t be able to do it’. They believed in what they said.
They still do.
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Merinda Epstein
Policy Worker 2003 – 2006
I have been policy officer at the centre for 3 years. For 15 years prior to that I have been active
in the Consumer movement and working in various ways to bring the Consumer perspective to
the mental health sector in Victoria, nationally and internationally. The determining factor in me
accepting the job at the centre was that I was convinced that the organisation was fair dinkum
about it’s commitment to Consumer self determination not only in its policy and rhetoric but
in the stories my fellow Consumers told me of their experiences of the organisation. This was
incredibly important to have as I had experienced time after time organisations that professed a
Consumer perspective but which when put to the test defaulted to a position that brought with
it prestige, power, funding or all three.
I was particularly determined to check out the centre’s credentials in relation to the unfortunately
common practice of slashing together Consumer interests and Carer interests because of
significant differences in power between these two groups that almost always results in the
Consumer perspective being undermined. During the last 3 years the centre has constantly been
challenged to fall into line with this new trend and has responded by repeatedly articulating our
determination to represent Consumer interests in all systemic advocacy and policy work we
undertake.
My position is not a position specifically held for a Consumer and yet the more I speak with
Consumer colleagues the more I become convinced that a Consumer who brings a lived
experience (of disempowerment, fighting for the preservation of dignity, reclaiming life, being
labelled as ill and so on) is able to bring to the centre skills knowledge and understanding that
would otherwise be unavailable to the organisation. It is really important that this is understood
and appreciated by the centre partly as these are such fundamental attributes of the Consumer
experience but they rarely get articulated and they are not necessarily the most obvious key
selection criteria for a policy worker. The fact that the centre does recognise them even informally
is what makes the organisation unique.
My only criticism is that they need to be formalised by bringing a group of Consumer policy
workers from different organisations together to process and document what is most important
and not from this perspective – for example the centre very dutifully and ethically consults key
Consumer thinkers around policy considerations, we respect the expertise of these people and
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know that it is something we don’t always have internally, we are also a poorly funded community
legal centre and our primary role is case work.
This produces a quandary because we should pay Consumers for their expertise. One of the not
yet formalised practices that I have followed in my policy work has been to exchange labour for
expertise in situations where we haven’t had money to pay however sometimes this has involved
me providing a Consumer perspective to an issue which seems beyond the scope of the centre.
Nevertheless from a Consumer perspective this is fundamentally good practice particularly if the
issue has at its roots the preservation of the human rights of people labelled as mentally ill.
Having said the lived experience brings significant benefits to the policy position this is not a
policy in itself about disclosure of mental illness, like any healthy organisation people make their
own decisions and shouldn’t be pressured to do otherwise. Respect for the ‘ill person’ voice
doesn’t necessitate people coming out.
The first person voice is however essential to the research and policy work being undertaken
by the centre. We value research methodologies that reflect the lives of real people, many of
them our clients, as whole people with whole lives and not just abstracted data. In the present
historical context it is quite difficult to argue for research methods that are seen by many within
the medical and legal establishment as lacking rigour.
It is our policy position that we don’t pander to the social construction of these elites but rather
continue to the first person accounts and critique those who would say this is not scientific. We
believe this is an ethical responsibility.
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I have been fortunate enough to have spent a considerable amount of my time learning more
and more about advance directives or living wills. In parallel I have learned more about how to
attract grants funding but I’d like to think this was secondary. At the 2006 THEMS conference
in Brisbane I gave a paper of part of a forum on advance directives/living wills. It interested me
how different the approach was from the clinicians who presented the preceding paper on the
same topic. There was a great deal of interest in the work that we are doing. We have been
invited to take part in a half day workshop at next year’s Mental Health Services conference on
advance directives. A similar high level of interest was shown for the overwhelmingly full day
forum we conducted in Melbourne this year. It really is an issue of central importance to many
Consumers.
Every second year the National Mental Health Consumer network runs an Australia wide
Consumer conference. The centre sponsored a successful workshop and I had the honour
of presenting with Mariette Mac Arthur, a woman tortured by a mental illness where service
provision was inadequate or non existent. She presented her story for the first time in public.
Her encounters with mental health services, the criminal justice system, the courts, the prisons,
police, her experiences of strip searches, were all horrendous - her bravery however, was aweinspiring.
A
nother consultation strategy has been centre Consumer Rights and Law Reform Forums. At the inaugural
March 1997 meeting the forum identified a number of rights and law reform priorities – confidentiality/
misuse of information, patients’ rights information, asserting rights and preferences/advance directives, the
disability support pension, Medicare, Workcover, transport accident compensation, voluntary admission/access
to services, crimes compensation, housing and tenancy, access to records, patient rights in relation to police
transportation, the media portrayal, discrimination in employment and education, sentencing, police powers,
confidentiality, privatisation, asserting advance directives, guardianship, money and administration, state
trustees, sexual assault and patient fees. Again, necessary reforms as yet unachieved outweigh advances
in most of these areas. In this as in all consultation work, too, there was a view that the focus should be on
issues that would actually be pursued and/or in relation to which there was seen to be some opportunity for
influence .
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One of the founding members makes the following observations about the forums:
The Consumer forums made me, and I believe others, feel part of the MHLC community and work.
For some of us it acted as a stepping stone into other voluntary roles at the MHLC, such as being
on the Management Committee or managing the Website, and/or paid employment as Consumer
consultants or similar. The skills, processes and confidence learned in the forums helped with
external advocacy work and in advancing in leadership roles elsewhere. It may not have had statewide involvement but it was a genuine mixture of metropolitan and rural which is uncommon in
other organisations. It was a learning experience in terms of our rights and the law. I am grateful
to have been able to be part of it.
Policy areas where very tangible change has been achieved include:
–
Campaign on cuts to Medicare rebates for psychiatric consultations in 1998. Having run an individual
discrimination action which failed for disappointing technical reasons, the centre campaigned and
organised a forum with the Human Rights and Equal Opportunity Commission and Consumers at the
centre, and made lengthy submissions on the discriminatory impacts of the changes. The Commission
asserted that the government’s position was discriminatory – and the government changed it. The
result was a significant improvement, substantially broadening the category of people entitled to the
higher level of rebate.
–
The centre campaigned in opposition to the removal of external review of decisions to appoint guardians
and administrators when the Guardianship and Administration Board was subsumed into Victorian
Civil and Administrative Tribunal. The government amended the legislation to create a right to a de
novo re-hearing as a result of the lobbying efforts of the centre, amongst others.
Change has been less clear, comprehensive or rights orientated, or indeed non-existent or retrograde, in
relation to the following issues, amongst many of concern to the centre.
Mental Health Act
T
here have been at least seven complete reprints of the Mental Health Act since its inception in 1986.
On average major significant changes have occurred about every two years. This does not include many
other minor amendments made along the way – the centre estimates these to number about 70.
The question arises - what have these changes achieved? To date, a comprehensive evaluation of all the changes
has been impossible due to limited resources. However, Victoria still has a long way to go to achieve consistency
with optimally rights recognising regimes in Australia and beyond and instruments such as the United Nations
Principles for the Protection of Persons with Mental Illness and Improvement of Mental Health Care.
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Over the last twenty years, for example, changes have included the requirement for a treatment plan (and, more
recently, the power for the Board to order revision of such plans for involuntary patients), addition of factors
which can not alone be the basis for diagnosis, more detailed requirements for informing people of rights, a
legislative right to access files before hearings, a strict requirement for informed consent before psychosurgery
can be performed, tightened criteria for revocation of a community treatment order and jurisdiction in the
“
Board to vary conditions of restricted community treatment orders.
approximately 70% of
involuntary patients
do not get a
review at all”
On the other hand, relatively early in the Act’s 20 year
life span the period in which the initial Board review
of an involuntary patient must take place was pushed
out from four to six to eight weeks, with the result that
approximately 70% of involuntary patients do not get
a review at all. Unlike in most Australian jurisdictions,
people do not have the right to have a decision to
administer involuntary ECT reviewed by the Board. The Board has lost jurisdiction to hear appeals against
the rejection of general leave applications by security patients. The Act’s requirement about statements of
rights still does not apply to voluntary patients. The circumstances in which Consumers’ confidentiality can
be breached have been expanded.
Circumstances in which people can be involuntarily transported to hospital have been expanded. The specific
right to complain to the Office of the Chief Psychiatrist about denial of access to services was removed. The
discretion of the courts to place people found guilty of criminal offences on Restricted Involuntary Treatment
Orders (formerly Hospital Orders) has been reduced. Whilst the Board can order revision of treatment plans
for involuntary patients under the most recent amendments (though to date appears disappointingly reluctant
to do so), it is troubling from a rights perspective that it was not given power to vary treatment in appropriate
cases. Concerning too, in the context of those 2005 changes was the haste with which a change, requiring
treating psychiatrists to discuss treatment plans with patients, was amended away when psychiatrists
expressed concern.
As well as inability to access services at all a key Consumer concern is receipt of services, often involuntarily,
which are simply not appropriate, exacerbate their difficulties or cause debilitating side effects. Many people
still receive treatment against their will. In that context effective mechanisms to protect people’s rights are
crucial. This was one of the many concerns raised in the October 2002 Auditor General’s report into Victoria’s
public mental health services. A troubling aspect of that report, too, was the fact that political pressure was
brought to bear to remove material which researchers felt should have been included, some of which related
to issues of concern to the centre.
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Discharge from hospital for many patients means involuntary treatment in the community, which is little more
than medication with no case management and few counselling or social, educational or vocational options.
Poor discharge follow up is not exclusive to the public health system. There is scant discharge planning or
linkage for all people in mental health crisis, too often released without medication or appropriate referral.
It is no longer good enough for Victoria to argue its “success” relative to Australia’s other states and territories.
Legislating for “best practice” rights recognition and offering people appropriate community based treatment
and support of a type with which they may want to engage is the real challenge.
“Governor’s Pleasure” Reforms
I
n the centre’s tenth year of operation legislation was enacted to reform the system which until then had
left decisions about people found unfit to plead or not guilty due to mental illness in the hands of the
government. People not responsible for their crimes and very often highly responsive to treatment languished
in custody, too often in prisons, beyond the periods which would have applied if convicted. The centre, along
with others, advocated reform. The system under the Crimes (Mental Impairment and Unfitness to be Tried) Act
1997 is vastly better – primarily because decisions about release from custody and reduction in restrictions
on people are made by courts not politicians, custody in prison is only allowed in exceptional circumstances
and specialist forensic mental health services, in many respects better resourced than general services, have
developed along with the new regime.
However, not all of the centre’s concerns were addressed in the new legislation – for example, people are still
subject to indefinite detention or supervision orders, contrary to the situation in some other jurisdictions and
recommendations of the Parliamentary Community Development Committee. The requirement for repeated
appearances at Court to renew leave or be reviewed is unnecessarily costly and traumatising. As in so many
areas the response of the system to sensationalistic media coverage of entirely exceptional, misunderstood
and ultimately harmless incidents involving forensic and security patients has only increased the often antitherapeutic and unnecessarily cautious approach taken to this group.
Not just the legislative framework, but the way services are resourced and structured also plays a part. A
recent example involves the Jardine Flats. At the time that Thomas Embling Hospital was built, outside the
grounds of the hospital a small complex known as the Jardine Flats was also built to provide an option for
intensive community re-integration for patients of the forensic hospital. The flats lay fallow for many years
but in the past two years have provided 18 beds in six independent unstaffed flats to patients in the process
of moving towards independent community living. As part of a recent Government announcement of 20
new beds at Thomas Embling Hospital the centre is troubled to learn that the Jardine Flat beds have been
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regazetted as inpatient beds. This will lead to a loss of desperately needed community transition options in a
context where they are already inadequate.
Sentencing
T
he centre has lobbied around more appropriate sentencing dispositions for people with psychiatric
disability since its inception. In 1997, for example, it was significantly involved in a community consultation
project. Its submission was very well received by the Department of Justice – but few of its recommendations
were adopted.
More recently, the centre’s views are keenly sought by the Sentencing Advisory Council. It was heartening to
hear the Attorney-General express the view at that Council’s launch that discretion is the foundation of good
sentencing. In this context it has been particularly disappointing to see the discretion in relation to hospital
orders (now restricted involuntary treatment orders) and suspended sentences reduced.
Complaint System Reform
T
he inadequacies of mental health system complaint and accountability mechanisms impede optimum
redress and service improvement in relation to a range of issues. In a sense, however, all matters dealt
with by the centre, beyond perhaps mere information seeking/referrals, indicate client dissatisfaction with
the system or its component actors.
How effective can a complaint system be when:
–
you are under lock and key in a high dependency unit, with no access to private telephone or money
for calls
–
you complain and they increase your medication
–
talk and aspirational legislative statements about rights doesn’t translate into reality
–
the system appears designed to process and close complaints with a “resolved” statistic generated,
rather than rigorously investigate and challenge service providers
–
there is always a fear that they will target you, as complainant staff always know whenever you
complain internally
–
as soon as you have a mental illness they don’t take your complaint seriously or you are punished for
making a complaint.
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There has been very little improvement in this area over 20 years. The Office of the Chief Psychiatrist now
produces an annual report, which is certainly progress. It remains, however, fundamentally conflicted in its
location in the Department of Human Services and in its role as adviser to services and recipient of Consumer
complaints. The process of the Health Services Commissioner may have improved in some respects, but centre
lawyers and Consumers remain concerned about how that body handles some complaints and structural
problems such as the lack of access to a tribunal hearing for unresolved health system matters.
As in all areas of the centre’s work, there may be a great many more ‘un-actioned’ complaints and dissatisfied
patients – information requests and casework load indicate only a fraction of the problem that could be
improved by a more accessible, proactive and systemic complaints/accountability system.
Parenting Rights
I
n 1990 volunteer Serena Thompson commenced work on “Women in the Mental Health System” specifically
focusing on the “propensity on the part of Community Services Victoria to see a woman with a mental illness
as an unfit mother”. The campaign to eliminate discrimination in the child protection system has continued
since with submissions, forums, casework and media comment.
The new Victorian Children Youth and Families Act 2005 to be introduced next year looks set to worsen the
situation. It makes no provision for the specialist needs of parents with a mental illness. The Department of
Human Services notes a marked increase in people with disabilities coming into the child protection system
and highlights that 70% of parents affected by the system have a disability or drug or alcohol issue, but
provides no assistance. In accordance with the Disability Discrimination Act 1992 and the Equal Opportunity
Act 1995 reasonable adjustments must be made to ensure that specialist services are available to assist
these parents.
Not so – DHS’s subjective views on ‘parental capacity’ time and time again discriminates against parents with
disabilities. Many are concerned that these changes, providing for fast-tracked permanent care and changing
the key test for intervention in a way likely to discriminate, will only deepen the injustice.
Taser Campaign
I
t was late March 2004 after the first police shooting that year of a person with a mental illness. The
Police Association had made what was to become a harping cry – all police in Victoria must be issued
with taser stun guns. Alarmed about the use of this new intervention and concerned about its impact upon
centre clients the centre joined with other member of the Federation of Community Legal Centres to learn
more about tasers.
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Tasers work by discharging 50,000 volts of electricity through a person’s body for five seconds, at an average
of 17 pulses per second. There are two ways they can be applied. The first is when the gun is fired sending
out two wires over a distance of up to seven metres with small fish hook barbs on the end. The barbs embed
in the clothes or skin and a circuit is created for the electricity. The other way is where the gun end is pressed
directly to the body and the same charge of electricity is fired. The effect is instant. The pain is intense,
excruciating and overwhelming. It overrides the central nervous system and the person involuntarily contracts
into a foetal position, hands bunch into fists, knees buckle and they drop to the ground. Sometimes they
urinate. They stay in this position until the current is cut.
The centre was concerned about the impact upon its clients – in crisis and of need of support and mental
health/crisis intervention when all that was been offered was torture and potential harm. Despite a cohesive
and unified campaign, encouraging media coverage and collective interest opposing the use of tasers, they
now form part of the Victorian Police armament. The campaign did, however succeed in focusing attention
on the issues around people with mental health crisis and the need to examine police intervention.
Crisis Support Units
C
oncern about the increased vulnerability of people with mental illness with police intervention led the
centre to look at options. Crisis Support Units (CSUs) existed in Melbourne between 1989-1994. The
Kennett government abolished them in 1995.
These police units, employing both police officers and mental health professionals, provided immediate
response to a crisis situation, involving people with psychiatric and other disabilities – to diffuse the situation
where a person may be at risk, to assess the situation and make an instant and appropriate referral.
There is a critical need for the reintroduction of CSUs or an equivalent service, in both rural and metropolitan
Victoria, to assist police in their encounters with people in mental health crises in a safe and dignified way.
Police are the only mobile 24 hour crisis intervention service. Police are called on to act in ways far beyond
their training and skills provide to avoid inappropriate arrests of, and injuries to individuals experiencing an
acute episode of mental illness. They must have appropriate support in order to deal with these complex
crisis situations, by acting in tandem with mental health professionals as part of a CSU team this support
can be provided.
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Proactive Policy
A
perennial tension has been that between proactive and reactive law reform and policy work. Police
involvement and safe services are examples of the former in a broad sense, though, as with most priority
issues, there have been a number of relevant inquiries or other externally driven processes where the centre
position has been advocated. An example of a proactive initiative where no change has been achieved to
date is the campaign in 2000 and ongoing, to influence procedural rights for people facing electroconvulsive
therapy (ECT) against their will. Research, a forum, a position paper media comment and lobbying (the latter
being ongoing as appropriate) have failed to bring Victoria in line with other Australian jurisdictions.
More recent proactive policy and law reform projects which have attracted significant funding are:
The Mental Health Review Board Project
C
rucial to addressing and supporting the extent to which the Board fulfils its role is consideration and
understanding of the hearing process from the perspective of people appearing before it.
The Reichstein Foundation funded the centre project ‘Involuntary Patients Experience of the Mental Health
Review Board – What is it and How Does it Work?’
The study was initiated in response to concerns and frustrations expressed by patients and legal advocates
that some experiences for individuals appearing before the Board the centre not positive or productive. It
was inspired by the late Jim Tempany – an immensely valued and greatly missed centre volunteer, friend and
supporter and Legal Officer at the Mental Health Review Board.
A Consumer sums up well:
They need to hear the Consumer voice very loudly, they need to hear people’s experiences of other
Mental Health Review Boards if they are being trained for one.
They need to understand the precarious situation people can be in and how and they need to
understand that people sometimes are more knowing of their environment in which they are in,
than people give them credit for. A lot of people think because you are crazy and mad whatever,
you are not taking anything around you that you aren’t seeing things as they really are and the
thing is that you remember what people do and say to you when you are mad, you don’t forget and
you remember kindness and you remember the bad things that are done to you.
I think Mental Health Review Board, doctors, nurses all need to understand that we are taking things
in and when we are abused we know it. I think that for, I think the training for the Review Board
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people, I think they need to have some sort of compassion for the person and acute awareness of
the circumstances and what it means if they are going to certify someone involuntary what does it
really mean to them, what is what do they need to be doing in their life, have they got kids to look
after… so not to be too judgmental, not to be instantly judgmental.
Over the past 3 years the project has collected the individual experiences of people appearing as well as
advocates and stakeholders and will publish the results in 2007. The impetus for the study came from clients
of the centre who have assisted in the development of the project methodology and acted in an advisory
capacity to the researchers. The success of the research to date can be measured by its impact upon Tribunal
practice not only in Victoria but also in NSW and ACT and in the development of further National research.
Criminal Justice Project
I
t is now widely acknowledged that, as some articulate it, prisons are the “new asylums” for too many people
diagnosed with psychiatric disability.
Consistent with its commitment to make the most efficient use possible of scarce resources and pursue
needs identified through its “tip of the iceberg” casework practice, the centre was keen to pursue a project
which would improve people’s experience of the criminal justice system. The Law Foundation has funded a
project to explore the views and experiences of people with a psychiatric disorder in relation to the criminal
justice process, from police arrest to appearing in Court and outcomes.
It is a form of progress that over-representation of people with psychiatric disability in the criminal justice
system is now a well recognised challenge for government, the Courts, police and service providers. It is the
centre’s hope that the testimonials of those who have experienced the criminalisation of mental health issues
first hand will inform present and future decision-makers.
Advance Directives/Living Wills Project
“Consumers are likely to achieve successful outcomes if they participate
in their own treatment, but this may not be possible at those times
when they are extremely unwell. This has led to suggestions that when
Consumers are experiencing good health they could give advance
directives (also known as ‘living wills’) about matters that may affect
them later, during episodes of illness, including directives about their
treatment.”
- A National Approach to Mental Health – from Crisis to Community. Report of the
Australian Senate Inquiry into Mental Health March 2006 p. 10
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In its Report the Senate has recommended the development of Living Wills/Advance Directives. Directives/
wills are instructions made by people with psychiatric disabilities about the services they know will enhance
their recovery, how their affairs should be conducted and steps they know they will need to be taken if they
are deemed to lack capacity – especially if made subject to involuntary treatment orders. The centre has
been keen to work with Consumers to develop and promote living wills and explore the law reform required
to implement and enforce them.
For the last 10 years (and thanks very much to Ria Strong’s passionate advocacy of them about 10 years
ago) Advance Directives/Living Wills have been a policy priority of the centre. The centre was influential in
HREOC prioritising them as a mental health issue in a post Burdekin Report review in 1999. In 2006 the
centre ran a highly successful forum on this issue, and has just learned of its success in securing funding
from the Reichstein Foundation to develop and trial development of these exciting instruments. As with other
centre projects, the inspiration comes from the its extraordinary clients and Consumer colleagues and the
support of other stakeholders – individual and organisational, has been crucial.
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Community Legal Education
F
rom the beginning, the importance of community legal education, and a position dedicated to that role,
were clear.
Fiona Seymour
CLE worker 1993 - 2006
The Mental Health Act 1986 has doubled in size since its inception and has changed from what
was a reasonably simple statute to a quite complex document with many additions and changes.
It has not developed in any cohesive way, rather layers upon layers of new orders are created and
added as individual problems are identified. At the moment there are at least nine different sorts
of orders that basically all do the same thing, force involuntary treatment. Trying to educate the
community and Consumers on what these laws are about can become oppressive when what
Consumers really want is some respect for their wishes and some right to refuse treatment.
Everything works against Consumers or anyone in the community being able to engage with
the law whether it be for educational or law reform purposes. It is a constant power struggle, at
times you have to question whether the law wants to be understood by anyone but the privileged
few.
It can be difficult to engage the public including Consumers to try and understand the existing
processes and options in the law to manage their lives and the world around them unless they
are facing a crisis. The information revolution has significantly affected not just CLE but the
lawyers and other staff’s professional development needs. Unfortunately these demands for
knowledge and resources can compete with Consumers.
Production of publications has been a major focus of the centre’s CLE work. As well as providing some funds
towards the centre’s general operations in 1989/1990, the Victorian Law Foundation gave project money
for the centre’s first Patients’ Rights Booklet. Amongst the challenges approaching the centre’s 20th year
has been securing adequate support for increased range of and demand for publications.
The centre was grateful to the Law Foundation for publication resources again in 1999 when it supported the
first edition of the criminal justice rights booklet. That booklet was updated without additional project funding
(though we did receive much needed printing funds from the Department of Human Services) in 2006.
By 2006 six editions of the Patients’ Rights Booklet and many more reprints incorporating lesser amendments,
have been produced. More recently, a protracted and time consuming copyright and design dispute with
Victoria Legal Aid, just resolved, meant the centre’s community has had to rely on web or photocopy access
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75
to an A4 update of its core printed resource for almost two years. This is just one example amongst many of
the difficulty of the environment in which the centre operates, the continuing inadequacy of resources and
the great debt owed to volunteers from within and outside the centre and overwhelmingly dedicated staff in
managing such challenges.
The centre’s current Advocates’ Guide to Mental Health Review Board hearings
had an ancestor in a document produced for the lay advocates project. It has
been the model for a similar guide for people appearing at the Guardianship
List of the Victorian Civil and Administrative Tribunal recently funded by the
Victoria Law Foundation. Over time the centre has developed numerous
smaller publications and handouts on specific issues – freedom of information,
complaint processes, interstate application of orders, useful names and phone
numbers, mental impairment defence and drivers licence reinstatement to
name a few. It is tremendous in developing such resources to be able to draw
on the knowledge of the centre’s community as to unmet need – the licence
flier, for example, was the brainchild of Vrinda Edan - a Consumer Consultant
who was also on the centre committee of management.
In 1993 the Lance Reichstein Foundation funded the Medication Rights Project.
This project produced an information pack on commonly used psychotropic
drugs and issues such as informed consent and side effects. Medication
information is now provided by the Department of Human Services. In 1994
the centre joined with VMIAC, The North Eastern Alliance for the Mentally
Ill, Action on Disability in Ethnic Communities and the Mental Health Review
Board to develop a patients’ rights video. Funds came from the Sydney Myer
Fund and Stegley Foundation, with some money donated by NEAMI, ADEC
and the MHRB. The video was produced in a number of community languages.
The video was the forerunner of one produced in 2005 by the Mental Health
Review Board and Victoria Legal Aid. The centre was a valued adviser on that
project.
As well as producing its own publications the centre has contributed to others
– workers regularly update the mental health law section of the Fitzroy Law
Handbook and act as commentators on many other resources, such as the
Springvale Legal Service Lawyers Practice Manual and a range of government
and organisational publications.
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A significant publication related task has always been maintaining current stocks of relevant materials
produced by other organisations, and providing feedback. Volunteers have provided invaluable support in
this and other aspects of the centres’ CLE work, including research, drafting and conducting focus group
consultations on drafts.
Delivering workshops and training sessions has always been a key CLE strategy. In the centre’s early years
the emphasis was on training about the Mental Health Act. Whilst this is still the core training area, in more
recent times subjects covered have diversified to include most of the areas in which centre lawyers practice.
In more recent years there has been a greater emphasis on large information sessions on specific issues,
involving centre staff and other relevant experts. Forums on the 1996 changes to the Mental Health Act,
large-scale hypotheticals and forums dealing with debt and credit problems, are examples.
Another CLE strategy is the involvement of centre staff in presentations to conferences, seminars workshops and on
panels. The centre prioritises issues and contexts where its involvement will be most useful. Over the last five years,
opportunities to provide training to decision makers such as magistrates have been sought. Staff have delivered
information to VCAT and Mental Health Review Board members, registrars and magistrates, for example.
The primary target group for training is Consumers. The centre receives many requests to provide sessions
for others, including mental health workers and Carers, but is generally unable to assist. Each year a particular
“non-Consumer” group is identified for some CLE services – often lawyers and sometimes specific workers
such as those in psychiatric disability rehabilitation and support services or indigenous support workers.
In 1998 the centre’s CLE worker reported that she had met staff working in mental health for more than
10 years who had received no training on the Mental Health Act. In that same year the Psychiatric Disability
Support Unit in the Department of Human Services closed down, only increasing the difficulty for workers in
learning about people’s rights, and, in turn decreasing the likelihood they will be realised.
Making information accessible to people from culturally and linguistically diverse backgrounds has always
been a concern. Wherever possible the centre has translated key publication into community languages, and
regularly reviewed those languages most in demand. In 1998, for example, the centre worked with the Centre
for Culture, Ethnicity and Health to undertake an ethnic access information strategy, informing radio listeners
in community languages about steps which can be taken to protect rights.
In 1999 the centre launched its website, designed and maintained by wonderful volunteer Webmaster Joseph
Trotta. In 2004 there was a change to a site auspiced and supported by the Federation of Community Legal
Centres. Though it will never be a substitute for access to hard copy publications, it is a great advance to be
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77
able to make a large number of centre resources available in that way, and easily update material as required.
It was certainly useful to be able to make the Patients’ Rights booklet available on the website while production
stalled over negotiations with Victoria Legal Aid.
As in all areas of centre operation, demand vastly outweighs supply and enormous thanks are owed to the
volunteers and external supporters who assist the centre in achieving what it does. Above all is the great
indebtedness to centre users who support and value a service which is too far from optimum.
Centre volunteers, committee and staff - December 2005
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20 Years Of Thanks To...
Staff
Alan Bangs, Anthea Teakle, Barbara Shalit, Catherine Leslie, Caz Healy, Christina Bouniotis, Dominique
Saunders, Fiona Seymour, Fran Silvester, Geoff Barbaro, Gwen Hall, Ian Petty, Jenny Gee, Jill Richardson,
John Nihill, Jude McIntyre, Kate Lawrence, Kathie Farne, Leoni Phelan, Lawrence McNamara, Linda Williams,
Luan Danaan, Lynda Williams, Lynise Pamment, Malcolm Craig, Marita Cullen, Martin Thomas, Merinda Esptein,
Michael Jensen, Miriam Ingvarson, Pasanna Mutha Merennege, Peter Johnston, Rhonda Black, Rosie Lew,
Ruby Jane Stormer, Ruth Nwankwo, Sara Jane Hart, Sarah Murphy, Shauna Hearity, Sophie Delaney , Steven
Hurd, Sue Tait, Vivienne Topp
Management Committee
Alan Adams, Alan Rassaby, Alison Smith, Anna Beasley, Arna Della-Vergini, Ashley Halphen, Bill Healy, Carolyn
Ryan, Cath Roper, Caz Healy, Chris Campbell, Chris Richards, Daryl Cloonan, David Close, David Griffiths, David
Plant, David Ring, David Webb, Dita Georgiadis, Domenico Colabro, Fran Sylvester, Frank Hytten, Graeme
Doyle, Ian Hearn, Ian Proctor, Isabell Collins, Jacqui Flitcroft, Jenny Leggatt, Jenny Williams, Jill Grey, Joan
King, John Dick, John McPherson, Joseph Trotta, Jude McIntyre, Julie Anderson, Justine McNamara, Kate
Summerville, Keir Saltmarsh, Leanne Craze, Leonie Englefield, Lisa Brophy, Liz Carr, Liz Gallois, Liz Grey, Lyndall
Grimshaw, Margaret Tomkins, Marita Cullen, Marta Ago, Mary McConnell, Meredith Taylor, Nettie Flaherty,
Niki Sheldon, Oliver Hume, Paul McGee, Pierre Baume, Peter Doherty, Peter Johnston, Richard Berger, Robin
Hezky, Robyn Souter, Rod Salvage, Ross Brown, Serena Thomson, Sharyn Clarke, Sophie Delaney, Steven
Hurd, Sue Armstrong, Sue Brady, Tasman Armitage, Viviana Cohn, Vrinda Edan
Volunteers
Aida Lee, Aileen McFadzean, Alan Adams, Alan Pinches, Allan Garcia, Allison Lee, Amanda Hurst, Amanda
Noseda, Amanda Thomas, Amber Chew, Amy Wood, Andrew Compston, Andrew Molnar, Anita Di Santo, Anna
Beasley, Anne Collins, Antoinette Kordell, Aroon Naidoo, Ashley Colebrook, Bernadette McSherry, Bernie Rich,
Bill Boreham-Moon, Bill O’Donnell, Bob Doolan, Bob Kumar, Bob Williams, Bradley Holmes, Brenda Linsell,
Brenda Walker, Brian Barrow, Bronwyn Thompson, Burt Kingma, Claudia C, Carolyn Graham, Carolyn Hogg,
Carolyn Ride, Cath Roper, Catherine Phillips, Catherine Rosenbrock, Charlene Lee, Charles Hunter, Cheryl
Rasheel Venga, Chitra Wijentillake, Chris Brown, Chris Culhane, Chris Hansen, Chris Maxwell QC, Chris Olsen,
Claire Bainbridge, Claire Gomm, Claire Savro, Clare Ryan, Corrine Mitchell, Craig Gardener, Cynthia Adams,
Daniel George, Danny Sullivan, Darrell Smith, Dave Clarke, Dave Griffiths, David McCann, David McKinnon,
David Mithen, David O’Doherty, David Tait, Debbie Kilroy, Debra Shultz, Demitra Angenatopoulos, Des Shead,
Diana Karapanagiotidis, Diana Mastrantuono, Dick Fuller, Dima Pudel, Domenico Calabro, Doug Parker, Doug
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Scott, Dr Helen Driscoll, Dr Ian Freckelton, Dr Peter McArdle, Edwin Burrows, Emma Hart, Erin Finnigan, Evan
Walker, Felicity Price, Fiona Hayes, Fiona Prendergast, Fran O’Brien, Gail Spark, Gary Sullivan, Gaynor Kelly,
Gaynor McLellan, Geoff Berry, Grace Horzitski, Graham Francis, Greg Oke, Gwen Hall, Harvey Whiteford,
Holly Gray, Ian Evans, Ian Grey, Ian Rogers, James Barnes, James Cahill, James Lim, Jane Polglase, Jason
Pizer, Jason Thomson, Jean Popomilokov, Jelena Popovic, Jeni Lee, Jenni Parker, Jeremy Koadlow, Jessie
McDonald, Jia Lin, Jilia Gitonga, Jim Tempany, Jim Wauchope, Jo Franklin, Joanna Betteridge, Joanne Howard,
Joanne Titcher, Joel Gerschman, Joel Townsend, John Bamborough, John Birrell, John Difford, John Faine,
John Geros, John Kroschel, John Maestros, John Tsiolkas, Joseph Trotta, Jude McIntyre, Julian Gardner, Julia
Gitonga, Julie McNamara, Julie Shaw, Justin Baum, Justine Lau, Justine McNamara, Karla Hayman-White,
Kate Brown, Kate Hammond, Kathleen Sheehan, Katie Ball, Kellie Blair, Kevin Bell QC, Kirsty Burrows, Kon
Karapanagiotidis, Kristy Burrows, Kylie Moore, Laurie Paynting, Lee Alexander, Len Hartnett, Len Jaffat, Leon
Doyle, Leon Tyrill, Lesley Noble, Lisa Karu, Lizia Lim, Louisa Dicker, Lyn McKenzie, Madeline Kelly, Malcolm
Barr, Mandy Bede, Maria Marshall, Marilyn Morrell, Marina Gloster, Marita Cullen, Margaret Yi, Mary Macrae,
Mark Champion, Martin Thomas, Mary O’Hagan, Matt Sainty , Maureen Bradley, Megan Wood, Meghan Davies,
Melinda Cavalieri, Melanie Young, Michael Lyon, Michael Thomas, Michael Allen, Michael Jensen, Michael
McKenzie, Michael Radywonik, Michaela Gutheridge, Mick Batskos, Miriam McDonald, Naomi Liu, Natalya
Cutting, Nettie Flaherty, Nick Dubrow, Nick Horner, Nick Kordella, Nicole Spooner, Nicole Stephens, Nola
Karapanagiotidis, Oliver Hume, Pablo Gimenez, Patricia McDonagh, Patrick Tehan QC, Paul Bingham, Paul
Grant, Paul Slattery, Paula Dunn, Paula Parentich, Peta Masters, Peter Cavanagh, Peter Hanks QC, Peter
Johnston, Peter Kelly, Peter Keogh, Peter Middleton, Peter Newton, Peter O’Flynn, Peter Pickett, Professor
Geoff Shepard, Pru Pearson, Rachael Brighton, Rakhee Ghelan, Renata Alexander, Ria Strong, Rob Williams,
Robert Crowe, Robert Deverell, Rod Salvage, Rolf Sorensen, Ron Cahill, Rosemarie Ryan, Sanna Coombs,
Sara Hichey, Serena Thomson, Shan Wright, Shifrah Blustein, Shulamit Ramon, Simon Cooke, Simone Beyfus,
Singh, Sophie Delaney, Stella Tan, Sue Tait, Susan Thompson, Tania Kovacs, Tasman Armitage, Ted Thorpe,
Terry Cahill, Terry Carney, Tim Martin, Tim Tatchell, Tina Kovacs, Tom Mosby, Tori O’Collins, Tracey Booth, Trish
Riddell, Trude Forest, Vicki Chang, Vidisha Bagshi, Vivienne Waller, Weislaw Wojcieckowski, Wendy-Jayne
Breheny, William McNeill
Other Significant Supporters
ANSTAT, Australian Federation of Disability Organisations, Banks Group, Beyondblue, Blake Dawson Waldron,
Borderlands, Broadmeadows Legal Service, Broadmeadows Women’s House, Brosnan Centre, Brotherhood
of St Laurence, CALD, Campaign Against Psychiatric Injustice and Coercion, Centre Against Sexual Assault,
Centre for Culture, Ethnicity and Health, Children’s Court, Citizens Commission on Human Rights, Community
Legal Education Working Group of Federation of Community Legal Centres, Collective of Self Help Groups,
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Consumer Consultants, Corrections Victoria, Disability Discrimination Legal Service, Department of Justice,
Department of Human Services, Disability Resource Centre, Drug Advisory Service, Equal Opportunity
Commission, Federation of Community Legal Centres, Forsensicare, Freehills, Guy and Hinton, Health Services
Commission, Justice for All, Lance Reichstein Foundation, Legal Ombudsman, Maddocks, Maurice Blackburn
Cashman, Mental Health Council of Australia, Mental Health NSW, Mental Health Queensland, Mental Health
Review Board, Mental Health Social Workers Association, Myer Foundation, National Council for Safety and
Quality of Health, National Mental Health Legal Network, Office of the Public Advocate, Perth Mental Health
Law Centre, Public Interest Law Clearing House, Psychiatric Clients Union, Queensland Alliance, Queensland
Welfare Rights Unit, Richmond Fellowship, Royal Australian and New Zealand College of Psychiatrists, Russell
Kennedy, Salvation Army, SANE, Slater and Gordon, SPECTRUM, St Kilda Legal Service, State Coroner’s
Office, Stegley Foundation, Swinburne University, The Australian Psychological Society, The Law Institute of
Victoria, University of Melbourne, VATMI Industries, Vicserv, Victoria Legal Aid, Victorian Council of Churches,
Victorian Law Foundation, Victorian Mental Illness Awareness Council, Victorian Women’s Trust, Villamanta
Legal Service, WAMIAC, Women’s Legal Resource Group, Youth Affairs Council
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If you would like copies of this history,
contact Mental Health Legal Centre
Level 4, 520 Collins Street, Melbourne 3000
Ph: 9629 4422
1800 555 887
You can also go to our website on
www.communitylaw.org.au/mentalhealth
M H
L C
Produced by The Mental Health Legal Centre Inc.
Level 4 520 Collins St MELBOURNE VIC 3000
November 2006
Design, layout and printing Maddocks