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Key literature

While there has been some research conducted—and indeed, is ongoing—into certain legal issues for people with a mental illness, the discussion below outlines the gaps in this literature, and where the Project will accordingly be focused to provide original information.

Before discussing the literature specifically relating to legal and access to justice issues faced by people with a mental illness, it is important to consider two related bodies of literature. These are, first, the literature on the ability of people with a mental illness to access services such as health and housing, and secondly, the human rights issues faced by people with a mental illness. Although access to health services and human rights issues do not always constitute legal issues, these two intertwined areas provide an important backdrop to the subject matter of our report. When denied basic human rights and access to health services, we expect people with a mental illness to be further hindered in having their legal needs addressed. Following a discussion of the literature on access to health services and human rights, we will outline the point of departure for the Project, as well as our precise definition of access to justice and legal needs.

Access to health and related services in NSW

Several sources highlight a “crisis” in mental health services in NSW.⁷² In 2001–02, the NSW parliamentary Select Committee on Mental Health conducted an inquiry into the condition of the state’s mental health services since the adoption of the Richmond Report 20 years earlier.⁷³ The scope of the inquiry was to provide an analysis of mental health services in NSW, and to address specific recommendations to the government where issues of concern were identified. In particular, it sought to investigate the success of the “deinstitutionalisation” policy, looking at issues such as the quality and availability of services in NSW, funding and staffing comparisons with other jurisdictions, and aspects of quality control and outcome measures.

The committee received a total of 302 submissions. Of these 53% were from private citizens, and 41.7% were from private organisations or interest groups (including university research centres and local government). State and Commonwealth government agencies made up the remaining 5.3%. In addition, 12 hearings, with 91 witnesses, were conducted at Parliament House, and a public forum was held in August 2002, at which 27 private citizens were chosen by ballot to speak to the committee of their experiences with the mental health system as carers or people with a mental illness.

The speakers’ concerns tallied with other repeated criticisms of mental health service provision in NSW, namely, in terms of “lack of”, “restrictions”, and “gaps” in mental health services; the emotional and financial toll on families; the inadequacy of supported housing and rehabilitation options; and the need for carer input into discussions about reform. The committee also conducted two site visits to correctional facilities (Long Bay Hospital, and the Metropolitan Remand and Reception Centre and Mulawa Correctional Centre at Silverwater). Overall, the select committee found:

NSW has a community mental health sector with a large responsibility for mental health care, but not the necessary resources. The weight of evidence presented to the Committee highlights that mental health services in NSW need revolutionary improvement. Deinstitutionalisation, without adequate community care, has resulted in a new form of institutionalisation: homelessness and imprisonment.⁷⁴

It has been argued that the gaps in mental health service delivery are attributable to poor coordination at the level of both the Commonwealth–state division of responsibilities, as well as between NSW government agencies, such as the NSW Department of Health (NSW Health) and the Department of Ageing, Disability and Home Care (DADHC).75 Recently there have been some efforts made to address this lack of coordination in service delivery, notably with the Housing and Support Initiative, a partnership between NSW Health, DADHC, the Department of Housing, and non-government organisational service providers.⁷⁶

Following the events surrounding the wrongful detention of Cornelia Rau, and allegations of severe mishandling of mental health issues in Australia’s immigration detention system, a Senate select committee on mental health was appointed in March 2005, and accepted submissions until May 2005. While the committee’s final report is not due until later in 2006, a number of important submissions are publicly available. Among the most significant is that of the Mental Health Council of Australia (MHCA), which tied in with its recent wide-ranging report, Not for Service: Experiences of Injustice and Despair in Mental Health Care in Australia.⁷⁷

Not for Service reports on the extent to which the Australian health care system adequately meets the needs of people with a mental illness, “some of the most vulnerable people in the community”.⁷⁸ Responding to continuing community criticism of the mental health care system, the MHCA and the Brain and Mind Research Institute at the University of Sydney, in association with HREOC, initiated this national review into experiences of mental health care. The review aimed to “capture the current critical themes in mental health care from the perspective of those who use and deliver its services on a daily basis”.

Throughout 2003–05, data were collected through open forums (there were 1180 participants), written submissions (351 were received), two community surveys, and individual meetings with specific community, professional, and non-government groups. Further, all Australian governments—that is, state and Commonwealth—were given the opportunity to respond to the primary data and highlight recent policy responses to the issues raised. The vast amount of information in the report, which is mostly presented as accounts of personal experiences, is organised according to the National Standards for Mental Health Service (the Standards) agreed to by all governments in 1996–97.

The majority of submissions highlighted recurrent themes, including poor resources, inadequate facilities, reduced safety, and the lack of respect and dignity for people with a mental illness—all of which were underpinned by difficulties in obtaining redress or registering complaints when dealing with authorities. While the report was not intended as a systematic assessment of the extent to which there is compliance with the Standards, it nevertheless found that “the volume and consistency of the information demonstrates the gaps and the difficulties governments have had in meeting these”,⁷⁹ as well as emphasising a series of pervasive systemic weaknesses. Like the MHCA’s submission to the senate committee, this report notes that while funding has remained at comparable levels since the introduction of the National Mental Health Strategy—and has indeed increased in some areas—the mental health system is failing carers and people with a mental illness, and placing an unacceptable level of strain on mainstream health services.

The “cumulation of personal experiences” presented in Not for Service suggests that, despite the Standards, it remains the case that “any person seeking mental health care runs the serious risk that his or her basic needs will be ignored, trivialised or neglected”.⁸⁰ The report notes the “substantial gaps between the aspirations expressed in these documents and the reality of Australia’s mental health care system”.⁸¹ The short-term, long-term, and systemic costs of mental illness for the wider community—ranging from basic failures of care provision, to suicide, homelessness, poverty and wider rights abuses—are identified. Not for Service reports that, more often than not, the financial and emotional burden of systemic failures falls on the families and friends of people with mental illness, rather than being alleviated in any broad-based way. It sets out a list of mental health reform priorities identified by professionals, people with a mental illness and their families, and calls on Australia’s state and Commonwealth governments to work together and commit to a process of genuine and adequately resourced reform.

Despite the slow pace of reform, the report does highlight some notable examples of political leadership, including a 128% increase in Commonwealth investment, new organisations such as beyondblue that work to destigmatise mental illness, and significant primary care sector reforms. However, given the likelihood that every family in Australia will be affected by mental illness at some point, the report states that these steps are positive but insufficient. Likewise, it is noted that such an ad hoc review can only present the “tip of the iceberg”, and should as such be “superseded by systematic annual reviews of experiences in the mental health care system”.⁸²

A number of issues reported were specific to NSW, which, with low per capita expenditure and low confidence amongst clinicians, fared poorly across all measures of mental health care quality. NSW is particularly criticised in relation to forensic patients (discussed below), as well as in relation to its perceived focus on law and order issues at the expense of enhanced clinical care. Where clinical care does exist, the NSW model tends overly towards the “old models of acute and hospital-based services” as opposed to “genuine service innovation or new partnerships with non-government or primary care service providers”.⁸³

In both its Senate submission and in Not for Service, the MHCA drew on and reiterated the findings of a 2003 report by Groom, Hickie and Davenport, Out of Hospital, Out of Mind!,⁸⁴ which argued that the gaps in planning, delivery and evaluation of mental health services stem not from a “failure of policy” but from “a failure of implementation”.⁸⁵ This report outlined the widespread failure of community-based care models to provide adequate care: specific criticism centred on restricted access, variable quality, poor continuity, and lack of support for recovery from illness and protection against human rights abuses. The report pointed to several factors identified by people with a mental illness and stakeholders alike, those being poor administration, lack of accountability, lack of ongoing government commitment to genuine reform, and a failure to support the degree of community development required to achieve high quality mental health care outside institutional settings.⁸⁶

While it has been reported that the absence of suitable supported accommodation is one of the major obstacles to recovery and effective rehabilitation,⁸⁷ the availability of such housing is not always assured. Under the 2003 Commonwealth State Housing Agreement (CSHA, effective until June 2008),⁸⁸ the Commonwealth, states and territories are to provide funding for those people whose housing needs cannot be met by the private market. However, in the last decade, opportunities to rent public housing have fallen by 20%.⁸⁹ As discussed by NSW Health in a policy paper, “waiting lists for social housing in NSW are long and priority waiting lists are highly competitive. Alternatively, the private rental market is both expensive and competitive.”⁹⁰ A 1998 report by the Richmond Fellowship noted that the average waiting period for appropriate services was 12 months, with people forced to remain in hospital until suitable places were available.⁹¹

At the same time, the Commonwealth has shifted its focus from funding under the CSHA to a preference for Commonwealth Rental Assistance as the primary form of housing support.⁹² This has manifested in a decline of just over 1% each year, which “raises questions of at what point public housing is reduced to unsustainable levels and whether the present stock profile and management is adequate to its changing role and focus”.⁹³ Further, it has been reported that little new stock has been added to public housing recently, meaning that the current stock is ageing and often inappropriate.⁹⁴

Human rights of people with a mental illness

HREOC’s landmark report Human Rights and Mental Illness (published in 1993 and also known as the Burdekin Report)⁹⁵ first raised many of the issues now frequently addressed in the literature. It did so, however, from a rights perspective, going one step further in the analysis of poor service delivery for people with a mental illness, to frame these problems as human rights violations. Importantly, these issues are often non-justiciable: that is, they rarely have a corresponding legal remedy.

The Burdekin Report was compiled after a wide-ranging and in-depth inquiry. The inquiry involved a vast number of submissions from and interviews with people with a mental illness, carers, stakeholders, and members of the community, as well as visits to mental health facilities all over Australia. The Burdekin Report’s enduring achievement lies in the sheer breadth of coverage it was able to give to mental illness issues. The report continues to be frequently cited and relied upon in the recent literature, which suggests that many of the problems it identified in 1993 remain unsolved.

The Burdekin Report offers strong anecdotal evidence on a range of legal and human rights issues that confront people with a mental illness. This approach, which frames the information from the perspective of people with a mental illness, is important in demonstrating the influence of perceived or subjective barriers to accessing legal services. One significant example is in relation to housing: while many people with a mental illness technically qualify for supported housing, a lack of confidence in dealing with bureaucracy or filling in forms, or simply a lack of knowledge about eligibility, means that in reality, the proportion of people actually benefiting from such housing is small. As mentioned above, the decreasing availability of public housing stock⁹⁶ has meant that low-income tenants who would otherwise be living in such housing are forced into the private rental market. This presents a scenario that the Burdekin Report associated with numerous difficulties, including discrimination.⁹⁷

Under the original Commonwealth–State Disability Service Agreement (1991) and its more recent extension into the third Commonwealth–State Territory Disability Agreement (2002–07), the Commonwealth takes responsibility for funding employment programs for people with disabilities, while the states administer accommodation services, respite care, information, and non-vocational daytime activity.⁹⁸ Advocacy, research and development are accepted as joint responsibilities. However, in terms of meaningful delivery of these services, the Burdekin Report noted in 1993 that despite the agreement, there is strong evidence that basic needs are not being met. The report suggested that many professionals—lawyers, government employees, police and ambulance officers—need better training to deal appropriately with people affected by mental illness. The report also highlights the vital role played by non-government organisations in the provision of services to people with a mental illness, but notes the dire lack of funding actually available to these organisations.

The second half of the Burdekin Report identifies groups within the mentally ill population that are particularly prone to missing out on services. The homeless are routinely denied vital services for a number of reasons (discrimination, bureaucratic barriers, identification requirements, inadequate or inappropriate service provision, poor administration by trustees). Further, children and young people with mental illnesses, Aboriginal or Torres Strait Islander people and those from isolated areas may find themselves in the justice system by default, due to a lack of appropriate mental health services.

An illustration of a serious non-justiciable human rights issue cited in the report was the fact that access to tribunals or judicial review is systematically denied to forensic patients in custodial arrangements. “Governor’s pleasure” detention, indeterminate in length, is theoretically reviewed regularly by an advisory body, but the report states that in reality, the executive government makes the relevant decisions. While many jurisdictions have remedied this situation in the wake of the Burdekin Report, it has been observed that NSW still lags behind in many areas. With the exception of decisions about fitness to stand trial, where the Mental Health Review Tribunal’s decision is determinative, decisions in regards to forensic patients are still made at the political level in NSW. Further, appropriate care and detention capacity in NSW remains largely inadequate, particularly for female forensic patients who are often treated in a men’s hospital or men’s prison due to the lack of facilities.⁹⁹

The extent to which Australian mental health legislation and policy conforms to international human rights obligations has been a recurrent theme in the literature—both before and since the Burdekin Report—and continuing efforts are made to evaluate this empirically. One such initiative was the “rights analysis instrument” developed by Watchirs and Heesom, which aimed to quantify compliance with international obligations by categorising rights and rating legislation accordingly.¹⁰⁰ This approach has received some criticism for its emphasis on the quantitative as opposed to the qualitative, as well as for presenting a “sanitised” account of its findings.¹⁰¹ Rees and Carney suggest the need for a more nuanced, qualitative approach to the intersection of human rights and mental health law, which contemplates medical dimensions as well as rights outcomes.

Many of the human rights concerns referred to in the Burdekin Report were starkly revisited earlier this year with the release of the Palmer Report, from the inquiry into the circumstances of the wrongful immigration detention of Cornelia Rau.¹⁰² The Palmer Report recognised that Ms Rau’s case brought to light a number of systemic failures in the delivery of mental health services in Australia: not only deficiencies in the immigration detention system, but also the “perceived poor performance” of services in the broader community.¹⁰³

In making its findings, the inquiry pointed to a “serious cultural problem” within the Department of Immigration’s compliance and detention sectors,¹⁰⁴ which manifested in inadequate training and education of staff; un-linked, “siloed” information systems;¹⁰⁵ inappropriate vesting of power; and little qualitative review. These aspects were compounded by what the report described as an “assumption culture”, which limited efforts by individuals within the departments to provide adequate health care,¹⁰⁶ as well as “a disconnect in planning, experience and communication” between the administration of the detention facilities and other bodies such as police, missing persons lists, missing patients lists and hospitals.¹⁰⁷ The result was a “lack of arrangements for effective communication, poor coordination and consultation, and a failure of management responsibility and oversight”.¹⁰⁸

Access to justice and legal needs

As noted earlier in this chapter, for the purposes of this project ‘access to justice’ and ‘legal needs’ involve more than access to formal legal representation and the courts. However, the terms are not interpreted in such a broad fashion as to consider contested political issues concerning broader notions of rights and justice, where the law is clear—thus avoiding duplication of HREOC’s work. The Project therefore endeavours to investigate issues of access to justice according to current Australian law.

In considering these specific terms of reference, it is important to note the Disability Council’s A Question of Justice report. This report used qualitative methods to gather information about the barriers experienced by people with disabilities accessing the NSW justice system. The researchers conducted consultations with service providers, stakeholders and, importantly, people with a disability who had had contact with the justice system. Fourteen of the 61 participants had a psychiatric disability. The report uncovered a number of issues experienced by people with a disability in dealing with the justice system:

• lack of recognition and additional support for support persons
• limited access to advocacy
• the adversarial nature of the legal system disadvantages some people
• the “camouflaging” of the adversarial nature of mediation and alternative dispute resolution
• a lack of role clarity within the legal system
• communication barriers
• financial, physical and emotional costs
• lack of flexibility within the legal system
• identification or disclosure of disabilities—the visibility of a disability was identified as a significant issue for people with a mental illness, as it is not always immediately clear that a person with a psychiatric disability may have special needs, or require special assistance
• few policies for the integration of services, and a lack of evaluation of services to determine their appropriateness and adequacy
• a general lack of community awareness and education
• stigma.

The Burdekin Report raised a number of issues that can be characterised as legal needs. These were primarily in terms of abuse of people with a mental illness, the experience of discrimination and concerns about the ability of people with a mental illness to participate effectively in the criminal justice system. The report provided the following examples where an individual’s ability to participate effectively in the legal system is impaired directly or indirectly by mental illness. First, although NSW under statute requires statements of rights to be made available to people facing involuntary detention, the Burdekin Report noted that people in this situation nevertheless lack basic information about their rights and roles. Secondly, abuse during detention is reportedly prevalent. Thirdly, mental illness frequently raises evidentiary problems in terms of witness credibility. The report noted that this issue is often experienced by women with a mental illness, particularly domestic violence victims.

Just as prisoners, forensic patients, and the criminal justice system were a particular focus of the Burdekin Report, most of the literature dealing with legal needs has been focused on the criminal justice system. The high number of people with a mental illness in custody has provided an impetus for this research:¹⁰⁹ many of the key reports listed earlier,¹¹⁰ along with other more specific studies,¹¹¹ have considered the over-representation of people with a mental illness in the criminal justice system, and related issues.

Many of these reports raised concern about the ability of people with a mental illness to participate effectively in legal processes when their mental health needs—among other basic needs—are not being met. A lack of training in disability awareness and mental health issues for staff such as magistrates, police, lawyers and custodial officers was another common theme.¹¹² For example, the Burdekin Report noted that mentally ill people may be less likely than others to be released on bail—perhaps because they are too poor to raise bail, because they have no fixed address, or because they do not understand the bureaucratic requirements. Thus, the report notes, people with a mental illness who commit relatively minor offences will often go to jail where they might otherwise have received a non-custodial sentence.

Further, the report indicated that people with a mental illness will often enter, or remain longer in, jails due to poor quality legal representation, or poor communication with their lawyers. The Burdekin Report argues that many lawyers lack appropriate communication skills, and are simply too uncomfortable or unskilled to deal helpfully with mentally ill clients.

As a response to some of these concerns, the NSW Statewide Community and Court Liaison Service was introduced by the Corrections Health Service to provide psychiatric assessment for people with a mental illness who commit minor offences and appear at court.

The service involves forensic psychiatrists and nurses working with magistrates, lawyers and police to identify and assess people with suspected mental illness and divert them from the criminal justice system into mental health services. Where such diversion is not possible for the individual, the service facilitates referral to mental health care within the prison system.¹¹³

Other diversionary options for mentally ill offenders are a topic of discussion in current literature.¹¹⁴

Apart from criminal justice system issues, some other areas of legal need have been raised in the literature. As yet, however, these areas have not been extensively investigated in Australia and NSW. For example, recent literature has raised concerns about service provision to people with a mental illness in the family law system.¹¹⁵ The Productivity Commission’s recent review of the Disability Discrimination Act 1992 (Cth) also presents a noteworthy contribution to understanding the barriers faced by people with mental illness and other disabilities, with respect to enforcing their rights under that Act.¹¹⁶ These and other references regarding specific legal issues will be raised throughout the body of the report in the context of our findings.

Before concluding this chapter, it is also important to note two relevant areas currently under investigation. First, the Law and Justice Foundation is currently partnering the Universities of Sydney and Canberra and the mental health tribunals in NSW, the Australian Capital Territory and Victoria in a project investigating mental health tribunals. The principal aim of the study is to assess the ‘fairness and justice’ of tribunal hearings, and to identify best practice reforms that enhance the fairness of hearings and the therapeutic outcomes for participants.

Secondly, it is important to note that the Mental Health Act 1990 (NSW) is currently under review. The NSW parliamentary Select Committee on Mental Health, which was established to consider the functionality and effectiveness of the Mental Health Act, has released two discussion papers. One of these dealt with issues concerning carers and access to information under the Act; the other dealt with operational and treatment issues contained in the Act.¹¹⁷ Each paper raises access to justice issues, some of which are due to inadequacies in the drafting and operation of the legislation. Others, the committee suggests, are more to do with the ongoing education and awareness gaps of mental health professionals. The first paper raises a number of areas where the main issue is competition between rights: the right of a person with a mental illness to privacy weighed against the right of their family to make decisions in an emergency; the need to establish a relationship of trust and confidence, as against the scenarios in which breaching that confidence might be justified. Of necessity, this discussion overlaps with carer concerns, with issues of who has a right to access information, and the fact that the Mental Health Act in many instances fails to include carers, while including family members.

The second discussion paper is far more extensive, dealing with each chapter of the Act in turn to determine its continuing appropriateness.¹¹⁸ Justiciable issues, or problems for which a legal remedy exists,¹¹⁹ often turn here upon definitions—of mental illness, of voluntariness, of mental health facility—which may have significant repercussions upon the validity of a person’s incarceration. There are many concepts in the Mental Health Act 1990 (NSW) that are simply too grey in their ambit, and the inadequacy of some of these provisions leads to justiciable problems. In several instances clearer wording is recommended by the committee.

As noted above, the Project has avoided duplicating existing literature on areas that are currently under investigation by others. Ultimately, however, we allowed those we interviewed to guide us in focusing on the most pressing and poorly recognised areas of legal need and access to justice issues.