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Research Report: The NSW Mental Health Review Tribunal: An analysis of clients, matters and determinations
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The NSW Mental Health Review Tribunal: An analysis of clients, matters and determinations    Cite this report

, 2011 , 113 p.
In recent years, there has been much interest in Mental Health Tribunals (MHTs), their legislated role, functions and day-to-day operations. Much of the interest has centred on accumulating an evidence base for evaluating the role of MHTs in safeguarding and perhaps even improving access to justice for particular clients of the mental health system -- specifically, those involuntary patients and other clients whose liberty, care, protection and treatment are under the control of the Authorised Medical Officers of hospitals and other mental health facilities. For mentally ill persons in New South Wales, the applications for initial or continued involuntary treatment are subject to review by the NSW Mental Health Review Tribunal (MHRT) under the NSW Mental Health Act 2007 (previously the NSW Mental Health Act 1990).


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Executive summary


In recent years, there has been much interest in Mental Health Tribunals (MHTs), their legislated role, functions and day-to-day operations. Much of the interest has centred on accumulating an evidence base for evaluating the role of MHTs in safeguarding and perhaps even improving access to justice for particular clients of the mental health system — specifically, those involuntary patients and other clients whose liberty, care, protection and treatment are under the control of the Authorised Medical Officers of hospitals and other mental health facilities. For mentally ill persons in New South Wales, the applications for initial or continued involuntary treatment are subject to review by the NSW Mental Health Review Tribunal (MHRT)1 under the NSW Mental Health Act 2007 (previously the NSW Mental Health Act 1990).

Attention has also focused on the role of MHTs in ensuring due process ('natural justice') and in conducting hearings and determining outcomes in a therapeutically beneficial manner. Much of the previous research examining MHTs was based on qualitative methods including relatively small-scale, purposive surveys and face-to-face interviews with stakeholders such as clients, tribunal members, mental health professionals, family members and carers.

This study has taken a different approach to its predecessors. It has utilised quantitative research methods to describe and analyse trends and patterns in data drawn from the records of persons who were new entrants to the NSW MHRT system in 2003. For a sample of 299 clients, each individual's full history of hearings before the Tribunal was reconstructed for the period from their individual points of entry in 2003 to 31 October 2007 — the date that the commenced. Records were extracted electronically from the MHRT's administrative computer system and matched to information gathered manually from the Tribunal's paper files for each of these hearings.

Aim

The aim of this research study was to provide a comprehensive description and analysis of the characteristics of a sample of mental health clients and mental health matters that came before the NSW MHRT for determination between 2003 and 2007 under the previous NSW Mental Health Act 1990.

Method

For each client in the sampled cohort, their complete history — hearings and other contacts (e.g. adjournments, applications to vary existing orders) — with the Tribunal was tracked up to 31 October 2007, the date that the current NSW Mental Health Act 2007 commenced. In total, records for 1083 MHRT hearings generated by a final sample of 299 clients were constructed.

The source of the research data was the MHRT's electronic Client Management System (CMS) and the associated paper files on each client that underpin the CMS. Access to these sources of information was both approved by the MHRT and facilitated by its staff.

Great care was taken by staff of the MHRT and the Law and Justice Foundation of NSW to safeguard the privacy of clients included in the cohort. Only de-identified data was extracted from the CMS and all members of the research team who accessed the MHRT's paper files were required to sign confidentiality agreements.

Two different types of data were available from the CMS and associated paper files — person-based and hearings-based data. The findings of this study have been built from these two perspectives. The person and hearings data were merged and processed to construct unit record data. Each constructed record represents a specific contact (event) with the MHRT for a particular client within the cohort. Thus, the merged data combined information about each individual's Tribunal hearings, their mental condition and other characteristics at each point of contact with the Tribunal. The resulting new database was then used to investigate trends and to identify statistically significant associations, interactions and other points of interest amongst the variables defined for this study.

It should be noted that this study focused on the available documentary records and not the actual evidence and discussion put forward at Tribunal hearings. The data used in this study also does not include information contained in the Tribunal's audio recording or transcript of proceedings, should any such record exist. Put simply, this is a study of the available information recorded on the CMS and found to be present on the associated paper files.

It should be noted that the paper files created by the MHRT are not intended as a complete or systematic record of each hearing or proceeding and it is possible that some important pieces of information may not have found their way onto the paper file. However, while certain information may not have been found in the paper files, this does not mean that some issues that remained undocumented were not a point of consideration by the Tribunal. Nevertheless, strenuous efforts were made in the data collection and coding processes to uncover as much useful, comparative information as possible.

Underlying the analyses reported in this study are research questions arising from the literature on therapeutic jurisprudence and mental health service delivery. As questions for research, these translated to guidelines for both the electronic and manual collection of data for this study. The research questions included an examination of whether the Tribunal's determinations were affected by:
  • the client attending the hearing
  • the client being legally represented at the hearing
  • the attendance of mental health service professionals at the hearing
  • the tabling of particular types of reports (e.g. psychiatrists' reports) with the Tribunal
  • the attendance of family and other client 'support' figures at the hearing
  • the mode of the hearing (i.e. live hearings compared with Tribunal hearings conducted by telephone or video conference).

Major findings

Before proceeding to detail the findings, it is important to note that not every individual in the general population who has a mental health issue comes to the attention of the mental health system, let alone the MHRT. Thus, any identified differences in the demographic characteristics of Tribunal clients are likely to reflect the fact that the MHRT deals with mental health issues at the higher end of the scale of seriousness and urgency. Conversely, clients with matters heard by the Tribunal represent a very small proportion of the population seeking mental health care.2

The study of this MHRT cohort allowed an examination of the distinguishing characteristics of those mental health patients coming into contact with the MHRT for the first time and their related event histories. It also provided insights into a range of issues central to therapeutic jurisprudence and the legally-regulated side of mental health service delivery.

Contacts: On average, each client belonging to the cohort was involved in 3.6 Tribunal hearings between 2003 and October 2007. The median number of hearings was two. The highest number of hearings for any client in the sampled cohort was 17.

Half the 299 clients first registered with the MHRT in 2003 were no longer in the system one year later. While only 15 per cent of clients remained in the system for four years or longer, they generated over one-third of all hearings for the period studied, or an average of more than eight hearings per 'long-term' client.

Mental conditions: Based on information that appeared in the clients' files, the majority of hearings involved a client diagnosed with schizophrenia (45%) or related disorder (21%). Clients diagnosed with depression were the subject of 11 per cent of hearings. Clients were diagnosed with a co-morbid drug abuse problem in 30 per cent of hearings; a co-morbid alcohol abuse problem in 15 per cent of hearings; and a co-morbid problem with both drugs and alcohol in 13 per cent of hearings.

Matters dealt with by the MHRT: Around 15 per cent of all Tribunal hearings examined in this study were subject to an adjournment. For matters that proceeded by way of a substantive hearing, around two-thirds (64%) involved an application to approve or vary a Community Treatment Order (CTO) with only one per cent of CTO applications declined by the Tribunal. Applications in relation to reviewing or extending Temporary Patient orders3 made up around 17 per cent of all Tribunal hearings. In this case, less than two per cent of such applications were not approved. There were 70 applications for Electro Convulsive Therapy (ECT) in the period, all of which were approved. These findings highlight the importance of assessments and recommendations made by medical/hospital psychiatric specialists and case managers when it comes to the treatment of involuntary patients. In particular, with applications to administer ECT there would appear to be less room to maneuver because the medical evidence to meet the relevant criteria under the Act must be especially convincing before MHRT approval is sought.4

Client demographics: There were more males (56%) than females (44%) in the cohort. More than half (58%) of the cohort was below 40 years of age at the time of their first hearing.

According to the 2006 Census, around 32 per cent of the State's general population lived outside the cities of Sydney, Newcastle and Wollongong, and a similar proportion (28%) of the cohort resided outside these metropolitan areas. Around two-thirds of the general population who resided in country NSW lived in the larger country centres (such as Dubbo, Tamworth or Coffs Harbour), while the remaining one-third lived in the more rural and remote areas of NSW. This is the reverse of the pattern seen for our cohort of MHRT clients, of whom one-third lived in the larger country centres and two-thirds lived in the more rural and remote areas of NSW.

The majority (60%) of clients at the time of their first hearing lived in areas identified as being either mildly or highly advantaged as defined by the Socio-Economic Indexes for Areas (SEIFA). This is 10 per cent higher than expected given the distribution of advantage across NSW. Just over one-quarter (25%) of MHRT clients resided in areas marked by mild levels of socio-economic disadvantage and around 15 per cent lived in areas marked by high levels of socio-economic disadvantage. Together, this is about 10 per cent lower than expected given the distribution of socio-economic disadvantage across the state.

The vast majority of MHRT clients in our cohort were born in English-speaking (ESB) countries with 92 per cent born in Australia. Persons born in non English-speaking (NESB) countries made up six per cent of MHRT clients and had a higher hearing rate (5.0 hearings per NESB client) than clients born in English speaking countries (3.5 hearings per ESB client).

Characteristics of Tribunal hearings: 45 per cent of Tribunal hearings were 'live' hearings, while 29 per cent were conducted by phone (i.e. teleconference) and 26 per cent were conducted by audio-visual link (AVL).

Client attendance/participation in substantive hearings varied with the nature of the matter before the Tribunal, ranging from 66 per cent of client 'attendance' at CTO hearing to 92 per cent clients 'attendance' for hearings regarding Temporary Patient orders. Four in every five ECT hearings were attended by the client.

A legal representative was more likely to be in attendance for certain types of matters, with significantly higher levels of legal representation noted in relation to Tribunal hearings that involved Temporary Patient orders (79%; also known as In-patient orders) and applications for Protected Estates Orders (79%). It was very uncommon (1%) for a legal representative to appear at a CTO hearing. It was only slightly more common (7%) for a lawyer to represent a client at an ECT hearing. The client's legal representative was almost always a Legal Aid NSW solicitor from the Mental Health Advocacy Service (MHAS).5

Professional reports (e.g. psychiatric assessments and treatment plans) submitted to the Tribunal were found on file for 85 per cent of all hearings generated by our cohort. Where a report was submitted and on file, at least one report author was in attendance at 80 per cent of substantive hearings (adjournments and other 'on paper' hearings not included). The authors of assessment reports and treatment plans were more commonly psychiatrists, hospital registrars, doctors, case managers and social workers.

It was not a frequent occurrence for Tribunal hearings to be attended by a 'support' person — a client's family member (e.g. spouse, parent, sibling, or offspring) or carer. ECT hearings were slightly more likely to be attended by the client's support persons than CTO hearings (33% and 20%, respectively), as were applications for Temporary Patient orders (33%) and Protected Estates Orders (36%).

The conventional view is that family members, spouses and other 'support' persons are allied with and supportive of the client's personal opinions on their need for treatment and care. Many such individuals are also the client's primary carer. However, the term 'support' person has broad connotations and such persons may have appeared before the Tribunal with views contrary to those of the client on the need for treatment and/or the type of determination they would like to see the Tribunal make. Protected Estate Orders, in particular, are matters dealt with by the Tribunal that may involve the views of family members or a spouse being in conflict with those of the client. Also, while the family is generally best placed to know the client well, many family members are estranged and do not associate with the client, often as a consequence of the client's mental illness. The low level of attendance of clients' support persons at Tribunal hearings may be explained by these factors as well as the client's right to privacy to not have their family notified of their Tribunal hearing.

Medication: Medication regimes play an important role in mental health therapy. However, the Tribunal does not generally make specific orders involving medication. The exception is with CTOs, where the client's current medication is always specified in the treatment plan at the time the order is made. This medication is subject to change by the treating team throughout the term of the CTO. Clients subject to a MHRT determination for a CTO can be breached if they don't comply with a prescribed course of medication.

Medication was on record for clients in approximately three-quarters of all MHRT hearings examined in this study. In terms of principal medication type, the majority (88%) of clients were prescribed an anti-psychotic agent — a typical course of treatment for schizophrenia and related conditions. The next most commonly prescribed type of medication was anti-convulsants (6%), followed by anti-depressants (4%).

CTOs and ECT orders: These two types of orders were examined more closely in this study given that they are frequently the subject of applications to the MHRT by treating teams in relation to the care and treatment of persons with a mental illness. CTOs represented nearly two-thirds of all Tribunal applications and 56 per cent of determinations. ECT applications and orders represented almost 15 per cent of first hearing applications and around seven per cent of Tribunal determinations overall.

Complex needs clients: Special attention was also given to Tribunal hearings involving members of the cohort deemed for the purpose of this research to be 'complex' in needs because of their combination of mental condition(s) requiring the prescription of anti-psychotic medication and co-morbid substance abuse problems. Approximately 18 per cent of Tribunal hearings examined in this study involved a 'complex needs' client. These clients tended to be in the MHRT system for slightly longer than other clients, with far more males (79%) and persons in their twenties (45%) or thirties (28%) than in the general cohort. Based on their residential postcode and using the 2006 Census index of socio-economic disadvantage for the whole NSW population, it was found that 'complex needs' clients had relatively high levels of socio-economic disadvantage, whereas the full cohort of MHRT clients was characterised by relatively high levels of socio-economic advantage.

Conclusions

The MHRT CMS database and the associated paper files provided the research team with a wealth of information on which to build a comprehensive quantitative study of the operations of the Tribunal and the characteristics of its clients.

The MHRT, like other mental health tribunals across Australia, performs a critical gate-keeping role in balancing the interests and rights of mentally ill patients in Australian society. This gate-keeping role is particularly important given that 'people with mental disorders are, or can be, particularly vulnerable to abuse and violation of rights' 6 and 'tend to experience greater difficulties in accessing justice than other groups, and also experience greater discrimination and disadvantage'.7

The NSW MHRT is not without its critics. The primary legislated function of the MHRT — conducting mandatory external reviews of compulsory psychiatric care — has been viewed by some as being negative and mechanical.8 However, the Tribunal's work to ensure that patients receive the best possible care in the least restrictive environment is consistent with both the overriding objectives of mental health legislation and the principles of therapeutic jurisprudence.

The type of determination made by the MHRT is almost always in direct response to an application made by a psychiatrist or mental health facility for the authorisation of treatment of an involuntary patient in hospital or in the community.9 Sometimes this involves an application for something as specific as an ECT, which may be a 'one-off' therapeutic intervention. The role played by the MHRT is therefore indispensable. This is reflected in its mandate to assess the merits of applications for the initial or continued detention and care of involuntary patients and for the treatment of involuntary patients in the community by way of a CTO. Central to the MHRT's legislated gate-keeping role is due process with a high premium placed on the individual liberty of each client.

This study identified that most applications to the MHRT for all types of orders are approved. In particular, very high approval rates occur in relation to applications to administer ECT to involuntary patients, the majority of whom were not capable of providing informed consent. This is not proffered as a criticism of the MHRT. Tribunals are in place to safeguard against the application of unnecessary and excessive treatment. Their vigilance extends especially to treatment that is ordered without a patient's consent or in circumstances where the patient is incapable of providing consent because of their mental illness. In fact, clients are afforded extra legislative protections through the MHRT that apply specifically to the review of applications to administer ECT.

According to the United Kingdom's ECT Review Group, the most common therapeutic use of ECT is in treating severe depression, particularly when accompanied by detachment from reality, a desire to commit suicide or refusal to eat and take medication.10 Many mental health patients in need of treatment by ECT are very ill and generally have a reduced capacity to consider their treatment needs, let alone attend or participate meaningfully in a tribunal hearing. In such circumstances, the Tribunals may find it necessary to defer to the expert medical opinion of the treating team and support the application for ECT in order to alleviate the patient's symptoms and suffering. Supporting medical research shows that treatment by ECT results in a rapid improvement in the symptoms of severe depression, with high remission rates noted for acutely depressed patients who completed a short course of ECT.11

The MHRT also must deal with the considerable needs of the many mental health clients who appear repeatedly before it. Fifteen per cent of the cohort in this study was in the system for the full period from their initial contact with the MHRT in 2003. These individuals also accounted for one-third of all Tribunal hearings examined. This indicates not only the severe and intractable nature of the mental conditions of some individuals (many of whom were identified in this report as having 'complex needs'); it also shows the high workload created for the MHRT by such a modest proportion of clients. The Tribunal's role in the mental health system is critical to ensuring that involuntary patients who are in the system for prolonged periods are not subject to unnecessary or excessive treatment or unwarranted deprivation of their liberty.

A recent UK study12 of the court/tribunal experiences of adults with mental health conditions, learning disabilities and limited mental capacity highlighted two findings in particular. The first, that contact with and support from a legal representative had positive impacts on a client's court/tribunal experiences including acceptance and satisfaction with the eventual outcome. The second, that access to basic practical and moral support alleviated stress and increased a client's understanding of their court/tribunal hearing. This was found to be especially important for clients who were symptomatic, whose mental condition was unstable or who were less capable of managing their condition. The moral and practical support could take a variety of forms including client access to their mental health care professional before, during and after hearings or having their carer and/or allied support persons (e.g. spouse, parent, carer) attend and participate in hearings with them.

This study found rather low levels of attendance by 'support persons' and legal representatives at Tribunal hearings (and here we are including teleconferenced and video-conferenced hearings together with live hearings). While explanations may be offered for these findings, they also suggest that strategies to improve the attendance and participation rate of clients' legal representatives, carers and allied family members at hearings — particularly first hearings — may lead to improved therapeutic outcomes for clients, perhaps even in the event that the Tribunal's determinations remained the same.

The MHRT generously provided access to the wealth of data contained in its electronic database of hearings and associated paper files. Needless to say, the MHRT's information management system was not designed or intended as a research tool. This is not unusual among public agencies and it called for additional auditing and re-processing of the administrative data to a stage that would facilitate our analyses. Empirical research tends to closely scrutinise data and this research was no different. Stringent quality control necessitated by our analytical models meant that the data needed high integrity and robustness. With the benefit of hindsight, this has suggested a number of ways in which the MHRT could enhance its collection of data for the purpose of research and, ultimately, service delivery and feedback. For the present, however, tracking a sampled cohort of mentally ill people and their contacts with the Tribunal over a number of years would not have been possible without the MHRT having kept accurate and organised records of its hearings and clients.

It is hoped that this study and its findings adds to the overall body of knowledge on the role and operation of the Mental Health Review Tribunal in NSW.

New South Wales Government Mental Health Review Tribunal website, <http://www.mhrt.nsw.gov.au>.
As Carney, Tait, Perry, Vernon & Beaupert (2011, p. 10) stated: Generally, only the more serious or sustained episodes of symptoms of mental illness within the general community will lead to specialist attention beyond medication prescribed by general practitioners. Inpatient or outpatient care by public or private psychiatric services, or consultations with a psychiatrist or clinical psychologist, covers a comparatively small portion of the community. Only a very small fraction will encounter mental health legislation, or the mental health tribunals of interest in this study.
Under the later NSW Mental Health Act 2007, all Temporary Patient orders, including Continued Treatment orders, were to be `known under the one name of Involuntary Patient Orders`. NSW Health 2007, see Appendix A. Under the previous NSW Mental Health Act 1990, Division 3 set out the various directions and determinations that could be applied to temporary patients. For convenience, these will be referred to as Temporary Patient orders (or TPOs) although no specific `Temporary Patient Order` existed under the 1990 Act. Similarly, there was no `In-Patient Order` under the 1990 Act.
This is the case under the current NSW Mental Health Act 2007. It was also the case under the previous NSW Mental Health Act 1990.
Information on Legal Aid NSW and the MHAS is available at <http://www.legalaid.nsw.gov.au/asp/index.asp?pgid=514&cid=710&id=435>.
World Health Organization 2005, p. 1.
Mind (2001) cited in McLeod, Philpin, Sweeting, Joyce & Evans 2010.
It has been noted that compulsory treatment for a person classified as mentally ill cannot be averted unless the relevant statutory criteria are met (Carney, Tait & Beaupert 2008).
The exception being a small number of MHRT reviews of long-term voluntary patients.
UK ECT Review Group 2003.
Lisanby 2007 and Husain, Rush, Fink et al 2004.
McLeod, Philpin, Sweeting, Joyce & Evans 2010.

 New South Wales Government Mental Health Review Tribunal website, <http://www.mhrt.nsw.gov.au>.
 As Carney, Tait, Perry, Vernon & Beaupert (2011, p. 10) stated: Generally, only the more serious or sustained episodes of symptoms of mental illness within the general community will lead to specialist attention beyond medication prescribed by general practitioners. Inpatient or outpatient care by public or private psychiatric services, or consultations with a psychiatrist or clinical psychologist, covers a comparatively small portion of the community. Only a very small fraction will encounter mental health legislation, or the mental health tribunals of interest in this study.
 Under the later NSW Mental Health Act 2007, all Temporary Patient orders, including Continued Treatment orders, were to be `known under the one name of Involuntary Patient Orders`. NSW Health 2007, see Appendix A. Under the previous NSW Mental Health Act 1990, Division 3 set out the various directions and determinations that could be applied to temporary patients. For convenience, these will be referred to as Temporary Patient orders (or TPOs) although no specific `Temporary Patient Order` existed under the 1990 Act. Similarly, there was no `In-Patient Order` under the 1990 Act.
 This is the case under the current NSW Mental Health Act 2007. It was also the case under the previous NSW Mental Health Act 1990.
 Information on Legal Aid NSW and the MHAS is available at <http://www.legalaid.nsw.gov.au/asp/index.asp?pgid=514&cid=710&id=435>.
 World Health Organization 2005, p. 1.
 Mind (2001) cited in McLeod, Philpin, Sweeting, Joyce & Evans 2010.
 It has been noted that compulsory treatment for a person classified as mentally ill cannot be averted unless the relevant statutory criteria are met (Carney, Tait & Beaupert 2008).
 The exception being a small number of MHRT reviews of long-term voluntary patients.
10  UK ECT Review Group 2003.
11  Lisanby 2007 and Husain, Rush, Fink et al 2004.
12  McLeod, Philpin, Sweeting, Joyce & Evans 2010.


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Cain, M, Karras,M, Beed, T & Carney,T 2011, The NSW Mental Health Tribunal: An analysis of clients, matters and determinations, Law and Justice Foundation of NSW, Sydney