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On the edge of justice: the legal needs of people with a mental illness in NSW  

, 2006 This study examines the legal and access to justice issues experienced by people with a mental illness. The methodology comprised a literature review, focus group discussions with key stakeholders, in-depth interviews with 81 legal and non-legal service providers, and 30 semi-structured interviews with people who have a mental illness. The report concluded that people with a mental illness experience a number of legal issues with potentially serious personal and financial consequences, and face many barriers in having these legal issues addressed....

Ch 1. Introduction


The Legal Needs of People with a Mental Illness Project (the Project) is part of a broader research program being undertaken by the Law and Justice Foundation of NSW (the Foundation) to study and report on the access to justice and legal needs of economically and socially disadvantaged people in NSW.1

As explained in the background paper to the Access to Justice and Legal Needs Program,2 ‘access to justice’ and ‘legal needs’ involve more than access to formal legal representation and the courts. However, the terms will not be interpreted in such a broad fashion as to consider contested political issues concerning broader notions of ‘rights’ and ‘justice’, where the law is clear. The Access to Justice and Legal Needs Program and this specific project therefore endeavour to investigate issues of access to justice according to current Australian law.



The aim of this project


The Project aimed to examine the capacity of people with a mental illness in NSW to:
A separate study will examine the capacity of people with a mental illness and other disadvantaged groups to participate in law reform processes.

This chapter will begin by developing the Project’s working definition of the term ‘mental illness’. This will be followed by a summary of available data on the prevalence of and demographic factors associated with mental illness. The remainder of this chapter will discuss the Foundation’s reasons for choosing to conduct the Project, and will end with a discussion of relevant literature.



What is 'mental illness'?



Mental health problems and mental illness refer to a range of cognitive, emotional and behavioural disorders that interfere with the lives and productivity of people. There is, however, no one single definition of mental illness, as definitions vary across jurisdictions and professions. In determining an appropriate definition of mental illness for the Project, we have taken into consideration legal, clinical and social approaches to defining mental illness.

Legal definitions of mental illness

Under Mental Health Act 1990 (NSW) sch. 1, “mental illness” is defined as a condition characterised by the presence of symptoms such as delusions, hallucinations, serious disorder of thought form, a severe disturbance of mood, or sustained or repeated irrational behaviour, which seriously impairs, either temporarily or permanently, the mental functioning of a person.6 A “mentally ill person” is someone who suffers a mental illness where, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary, for their own or others’ protection. This determination must take into account the person’s continuing condition, including the effects of any likely deterioration in their condition.7

It is noteworthy that the above-named symptoms, listed in the Mental Health Act 1990 (NSW), are most often associated with a diagnosis of psychosis, a particular and more severe form of mental illness. Other more common mental illnesses such as anxiety disorders, depression and substance abuse may not necessarily fit the definition provided in this Act.8

Clinical definitions of mental illness

Because the focus of clinical practice is on prevention and control of mental illness through treatment, clinical definitions of mental illness are far broader than their legal counterparts. It is rare to find a single definition in the clinical setting: in this context, a definitive statement about what is mental illness is often less helpful than determining how a disorder should be classified and treated.

Accordingly, there are two main international medical standards used in the classification of mental illness. The first of these is the World Health Organisation’s International Classification of Diseases (ICD-10), last revised in 1992 and used predominantly in Europe. The ICD-10 defines “mental disorder” as “a general term which implies the existence of a clinically recognisable set of symptoms or behaviour associated … with … interference with personal functions”.9

The second international standard is the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), revised in 2000 and used more frequently in the UK and the US. According to this system, a “mental disorder” must comprise a manifestation of “behavioural, psychological, or biological dysfunction in the individual”. It is:


Both classification systems have been adopted by key Australian agencies. The Australian Bureau of Statistics (ABS) has used an adapted version of the ICD-10 for its surveys (such as the 2001 National Health Survey (NHS)).11 In the National Mental Health Plan 2003–08,12 both the ICD-10 and DSM-IV classification systems are cited.

The Commonwealth Department of Health and Aged Care’s Mental Health Branch makes the further distinction of classifying mental illnesses as either psychotic—including schizophrenia and some forms of depression—or non-psychotic—including phobias, anxiety, some forms of depression, eating disorders, physical symptoms involving tiredness or pain, and obsessive-compulsive disorder.13

Social definitions of mental illness

The term ‘psychiatric disability’ is a narrower term than mental illness, as not all people with a mental illness will consider themselves, or be considered, to have a psychiatric disability. This is reflected, for example, in the Disability Services Act 1986 (Cth), where the very narrow definition of “disability” is restricted to those conditions which are “permanent or likely to be permanent”.

Nevertheless, it is important to consider the social model of disability, which though subject to constant evolution, is largely preferred by disability advocates. While not denying the individual’s limitations, the social model understands disability as a function of “society’s failure to provide appropriate services and adequately ensure the needs of disabled people are fully taken into account in its social organisation”.14 This is in contrast to “official” definitions, which locate disability in the individual’s pathology or biology.15 One important Australian study which applied the social model was the Disability Council of NSW’s (Disability Council) 2003 A Question of Justice report.16 Here, the model was used to “shift the focus from issues of individual impairment to issues of systemic disablement”, identifying as the source of disability not impairment itself, but socially and economically constructed discrimination and exclusion, that is, the responses of society towards impairment. Carney suggests that the social model has now gained wide acceptance within disability literature, with policy also moving away from the traditional medical model and towards a more nuanced understanding, whereby the emphasis is on “participation” rather than “impairment”.17

Working definition of mental illness for this project

Although the DSM-IV is somewhat more commonly used in clinical settings in Australia, the Project has adopted the ICD-10 definition, which is used by the ABS and so enables the use of ABS data. The Project did not adopt the Mental Health Act 1990 (NSW) definition due to its more limited scope.

Of particular interest to the Project were the disorders with the highest prevalence in Australia and NSW, namely, anxiety disorders, affective disorders and substance use disorders. As the next section indicates, a significant number of people in NSW are affected by these disorders. Recent literature has focused on the social and economic disadvantages that those suffering from these disorders can face.18 Despite their lower prevalence, psychotic disorders were also of interest, given their strong association with high levels of social, economic and, at times, physical disadvantage.19 While the above-named disorders were of particular interest, no mental illnesses were excluded from our study. In accordance with the design of this research, those we interviewed and consulted were free to raise whichever mental illnesses they felt were relevant.

In summary, for the purposes of the Access to Justice and Legal Needs of People with Mental Illness Project, ‘mental illness’ means the existence of a clinically recognisable set of symptoms or behaviour associated in most cases with distress and with interference with personal functions.20 While not an exhaustive list, the following clinically recognisable disorders were of particular interest in our study:


In conjunction with this definition, the social model of disability—explained above—was also drawn upon. This model allows for an understanding of the social and environmental factors that contribute to the lived experience of people with these disorders.21


Mental illness in Australia and NSW


How many people in NSW experience mental illness, and what are their demographic characteristics? This section provides information on available statistics in order to describe the scope and nature of mental illness experienced in Australia and NSW.22

Statistics for this section were drawn from the following sources: Due to under-reporting and sample limitations, most estimates of mental illness prevalence outlined in the above studies have been appropriately described as underestimates of actual prevalence. Furthermore, these sources have collected no or limited information about certain groups, such as Indigenous Australians and people from culturally and linguistically diverse backgrounds, as well as people living in institutions such as hospitals, colleges, sheltered accommodation and prisons, members of the armed services, and homeless persons.30

These studies provide the bulk of the information available on people with mental illness in Australia and NSW. However, due to the limitations described above, the statistical data are somewhat deficient, a situation which has been noted in several publications to date.31

High prevalence disorders: adults

Figures taken from the adult component of the NSMHW reveal that an estimated 17.7 to 18% of adults in Australia had experienced an anxiety, affective or substance use disorder, or a combination of these, in the 12 months preceding the 1997 survey. These rates mean that, overall, approximately 2 383 000 Australian adults had a high prevalence mental disorder.32 The NSW estimate at 17.4% (approximately 800 000 people) was not markedly different from the national average.33

Breaking down these figures further into the separate disorders, the prevalence of affective disorders was shown to be 5.8% of all adults within the Australian adult population and 5.4% of adults in NSW. Anxiety disorders were found to affect 9.7% of adults within Australia and 9.9% of adults in NSW. With respect to substance use disorders, the prevalence was shown to be 7.7% of all adults in the Australian population, a figure which was matched exactly in NSW adults.

Psychotic mental illnesses: adults

Prevalence figures for psychotic illness were reported in a study examining the low prevalence disorders component of the NSMHW.34 This component studied people living with psychotic disorders in catchment areas in the Australian Capital Territory, Queensland, Victoria and Western Australia. Prevalence estimates for the national population were extrapolated from these samples.

Nationally, the prevalence of psychotic disorders in the adult population is estimated to be in the range of 4 to 7 per 1000 people.35 The range of prevalence is dependent on the area under study, with rural and remote areas being under-reported in the study.36 Schizophrenia and schizoaffective disorders (as per the DSM-IV)37 account for over 60% of reported psychotic disorders.38

Co-morbid substance use disorder (dual diagnosis)39 complicates the course of psychotic illness in a substantial proportion of cases: 30% report a history of alcohol abuse, 25.1% a history of cannabis abuse and 13.2% a history of other substance abuse.40 According to Australia’s Health:


Overall prevalence estimate: adults

In relation to their figure of approximately one in five Australians experiencing a mental illness, the authors of The Mental Health of Australians state:


The 2001 NHS provides more recent estimates of the prevalence of mental health problems in Australia. Unlike the 1997 NSMHW, which used a structured diagnostic interview, the NHS estimates are based on self-reports (a method more likely to lead to underestimates). Almost 9.6% of respondents reported a long-term mental or behavioural problem. The NHS also measured psychological distress using the Kessler Psychological Distress Scale.43 In total, about 18% of adult respondents reported a mental or behavioural problem, and/or had a very high or high level of psychological distress, with 12% reporting both a mental or behavioural problem and a very high level of psychological distress. In summary, both of these key sources indicate that a significant number of people in Australia, approximately one in five people, experience mental illness.

Prevalence of mental illness: children and adolescents

The child and adolescent component of the NSMHW found that 14% of children and adolescents have mental health problems, and this high prevalence extended across all age and gender groups. There was a higher prevalence of child mental health problems among those living in low-income, step, blended and sole parent families.44

Demographics and high prevalence disorders

Gender

According to the NSMHW, mental illness in general affects 17.4% of Australian males and 18% of Australian females within the adult population.45 The NSW estimate is 16.9% for males and 17.9% for females.

As can be seen in Table 1, nationally, men were much more likely to have a substance use disorder than women (11.1% versus 4.5%), while women were much more likely than men to have an anxiety disorder (12.1% versus 7.1%) or an affective disorder (7.4% versus 4.2%). The survey found approximately the same magnitude of difference for NSW in the measurement of prevalence of substance use disorders (10.4% versus 5%), while for anxiety and affective disorders the prevalence for women was again greater than for men, with anxiety at 12.8% versus 7%, and affective disorders at 6.8% versus 4%.

Table 1: Prevalence of disorders in NSW and Australia

Females
Males
NSW%
Australia%
NSW%
Australia%
Anxiety disorders
7
7.1
12.8
12.1
Affective disorders
4
4.2
6.8
7.4
Substance use disorders
10.4
11.1
5
4.5
Total mental disorders
16.9
17.4
17.9
18

Geographical area

Again, based on the NSMHW, the ABS reports that nationally, the prevalence of mental illness generally is equivalent between “capital city” (17.5%) and “rest of State” (17.3%) areas.46 However, different patterns emerge when these figures are broken down. From a sample of adults, both male and female, it was observed that substance use disorders were more prevalent in the city than in the rest of the state (8.2% versus 6.8%), while anxiety disorders were more prevalent in the rest of the state than in the capital city (11.1% versus 9.2%).

The pattern of mental illness between the sexes showed more interesting discrepancies between capital city and rest of state samples: for males, the rates of anxiety disorders were equivalent (7.0% capital city versus 7.1% rest of state), while the rates of anxiety disorders for females varied distinctly (11.4% capital city versus 15.1% rest of state). Likewise, the rates of substance use disorders for males varied considerably between capital cities and the rest of the state (11.6% capital city versus 8.3% rest of state), while the rates for females were not very different (4.9% capital city versus 5.2% rest of state).

Table 2: Mental illness in NSW according to geographic area and gender

Geographic Area
Males%
Females%
Capital city
17.6
17.5
Rest of state
15.8
18.8

The NSW picture shows a slightly different pattern: for males, compared to an approximately equivalent national rate in capital city versus rest of state (i.e. 17.1% versus 17.5%), the NSW statistics show that rates of mental illness are actually lower for the rest of the state than for the capital city (17.6% capital city versus 15.8% for rest of state). The rates for women in NSW more closely reflect the national statistics (17.5% capital city versus 18.8% rest of state).

Age and gender

Figure 1 shows the prevalence statistics among women for different types of mental illness in Australia. As can be seen, the highest rate of anxiety disorders was observed in females aged 45–54 years (16%). The NSW statistics tell a different story, where the highest prevalence of anxiety disorders is in women aged 18–24 years (17.5%). Also, the prevalence in women aged 45–54 years was the same as for women aged 35–44 years (17.1%).

Figure 1: Females, prevalence of types of mental disorders by age, in Australia.47

In the Australian adult population, the prevalence of affective (mood) disorders was highest for women aged 18–24 years at 11%, more than three times the rate for men of this age (see Figure 2). This is quite a similar pattern to the NSW profile, where the same age group had the highest prevalence (females, aged 18–24), but the rate was slightly lower (9.2% compared to 11.1% national average). For women, the prevalence of affective disorders generally declined with age, while for men rates increased in the middle years before declining after age 55.

Figure 2: Males, prevalence of types of mental disorders, by age, in Australia.48

The NSMHW obtained information on the use of alcohol and four groups of drugs that included both illegal and prescription drugs. Young men were particularly prone to substance use disorders, with about one in five of those aged 18–24 being affected. For both men and women, the prevalence of substance use disorders declined with age to 1.1% of those aged 65 years and over. Alcohol use disorders were about three times as common as drug use disorders. In terms of prevalence, the NSW statistics on substance use disorders are slightly below the national average. While the same age and gender group has the highest prevalence (males aged 18–24), the NSW rate was markedly below the national rate, at 16.0% as opposed to 21.5%.49

Living arrangements and marital status

After adjusting for age, the prevalence of mental disorder across Australia was highest for both men and women living alone.50 This was also the case for anxiety, affective and substance use disorders individually. Overall, the prevalence of mental illness decreased as the number of people living in a household increased. Rates of mental disorder were also highest among those who were separated or divorced (24% of men and 27% of women). People who had never married also had higher rates of mental disorder than those who were married. In terms of specific disorders, those who were separated or divorced had higher rates of anxiety and affective disorders (18% and 12%, respectively). Of those never married, 14% had substance use disorders.

In terms of the rates of mental illness in people living alone as opposed to those living with other people, patterns in NSW differed according to gender.51 While the highest rate of mental illness in men was found in those living alone (18.9%), the number of people living in the household impacted differently on women. The highest prevalence of mental illness in women was in those living in households of four or more people (20.4%), compared to 15.6% and 14.9% for females living alone or with one other person respectively.

As to marital status, in NSW, as in the rest of Australia, the highest rates of mental illness are experienced by people who are separated or divorced (27.7% of men and 29.9% of women). This is followed by the rates in people who have never been married (as per the national statistics). Similar patterns exist for the type of mental illness by marital status in NSW as for the rest of Australia.

Employment

After adjusting for age, rates of mental disorder across Australia were highest for men and women who were unemployed or not in the labour force.52 People employed part-time were more likely to have mental disorders than their full-time counterparts. Unemployed people had relatively high rates of substance use disorders (19% of men and 11% of women). Unemployed women also had a high rate of anxiety disorders (20%).

In NSW, similar patterns emerge in regard to unemployed people, who have the highest rates of mental illness in the state, with 43.9% experiencing some form of mental disorder. However, rates for people not in the labour force (15.5%) are not as high as for those in part-time employment (19.4%).53 People in part-time employment experience rates of mental illness of 16% and 20.7% for males and females, respectively, as compared to rates of 12.9% and 17% for people not in the labour force. Interestingly, while the national pattern applied to women in NSW—females in part-time employment being more likely to have mental disorders than their full-time counterparts—the figures were different for NSW men. The survey found that NSW males in full- and part-time employment experienced equivalent rates of mental illness (16.2% and 16.0%, respectively).

The rates of substance use disorders for unemployed people in NSW were substantially higher than the national average, with 34.6% of unemployed men and 18.3% of unemployed women in NSW experiencing substance use disorders, compared to 19% and 11% of the national sample. Rates of anxiety disorders in unemployed people were also higher in NSW than nationally.

Education

These statistics for labour force status dovetail with those relating to a person’s highest educational qualification. According to the literature,54 mental illness can often be most debilitating in the years when a young person is finishing school or beginning post-school study. Mental illness can therefore have a negative impact on a person’s ability to attain the highest educational qualification possible. This argument is supported in the ABS figures,55 which show that in NSW the rate of mental illness (15.6%) is lower in people who have completed some post-school qualification than in those who have either failed to complete school, or completed only secondary school (21.1% and 18.5%, respectively). A similar pattern is found in data for the whole of Australia.56

Non-English speaking background

According to the ABS figures, people born in Australia and people born in other countries whose main language is English have equivalent rates of mental illness (18.4% of adults), while people born in non-English speaking countries tend to have lower rates of mental illness (12.5%).57 While these figures suggest that there may be lower incidence of mental illness in people of non-English speaking background, research conducted using qualitative methods has raised some other concerns around this issue.58 It is also possible that the survey instruments used to assess prevalence may not be trans-culturally sensitive.

Indigenous Australians

As noted above, the key Australian studies collected only very limited statistics on the mental health of Indigenous Australians. Both Andrews et al.59 and Jablensky et al.60 indicated that separate studies, investigating the mental health of Indigenous Australians, and using culturally appropriate survey methods and interview schedules, are required and should be conducted.

On the issue of obtaining data on Aboriginal mental health, the South Australian government’s final submission to the Bringing Them Home inquiry noted:


Despite the lack of data, the Human Rights and Equal Opportunity Commission (HREOC) nevertheless characterised the incidence of mental illness in Aboriginal and Torres Strait Islander communities as a “widespread”, “common and crippling problem which goes undiagnosed, unnoticed, and untreated”.62 The NSW Department of Health has also raised concern over the high rates of depression, suicide, substance misuse and mental illness-related hospitalisation for Indigenous Australians.63

The best available data illustrating these concerns can be found in the report by the AIHW, which relies on information regarding hospitalisations and deaths in custody.64 The report states that Indigenous Australians were twice as likely to be hospitalised for mental and behavioural disorders as other Australians. In particular, hospitalisations due to psychoactive substance abuse among male and female Indigenous Australians were around four and three times those for other male and female Australians, respectively. The report also states that as incarceration separates Indigenous people from their communities, many Indigenous prisoners experience depressive symptoms that can result in suicide attempts.

It is worth noting that the 2004–05 National Aboriginal and Torres Strait Islander Health Survey collected information relating to the health of Indigenous Australians. The survey has been carried out by the ABS in urban, rural and remote areas of Australia and results are expected to be available in 2006.

Welfare status

Drawing on data from the NSMHW on high prevalence mental illnesses, Butterworth estimated the prevalence of mental disorders among income support recipients.65 The key findings were striking, in that almost one in three (more than 30%) income support recipients have an anxiety, affective or substance use disorder. This is 66% more than the prevalence of mental illness among Australians not receiving income support. The prevalence of clinical anxiety and depressive disorders among sole mother income recipients is between three and four times the national average, with 45% of these experiencing a diagnosable mental disorder. The report noted that mental illness can be a significant barrier to workforce participation and that people with mental illness are among the most disadvantaged in our society.

Demographic characteristics of adults with psychotic disorders66

As noted above, the low prevalence/psychotic disorders component of the NSMHW did not collect any data in NSW; therefore, only national data are outlined here. Jablensky et al. report that the extreme disadvantage experienced by people with a psychotic mental illness is evidenced in the disproportionately high prevalence of unemployment and relative poverty, which “are widespread among people with psychotic disorders”.67 Interestingly, almost half of those with psychotic illnesses had not completed their schooling or gained any post-school qualification, and 72% were unemployed. In the 12 months prior to the interview, only one in five had been involved in part-time work and less than 10% had been in full-time employment. Of those who reported some occupation, including housework or studying, almost half had experienced a serious or moderate degree of dysfunction in the performance of such activities. The majority of those surveyed were living in relative poverty: 85.2% were recipients of a pension or other form of welfare benefits, and only 15.5% had any income from employment or other independent sources.

In terms of accommodation, the majority of those surveyed (44.7%) were


Almost one-third of participants (31%) were living alone. As to marital status, the majority (64%) were single and had never married (77% of men and 44% of women) and 21% reported to be separated, divorced or widowed.


Why a project on the legal needs of people with a mental illness?


The criteria for choosing the disadvantaged groups that would be examined individually in the Access to Justice and Legal Needs Program were:
The quantitative legal needs assessment was conducted by way of a telephone survey of households in disadvantaged regions in NSW. It was not the purpose of the study to obtain representative sub-samples of specific disadvantaged groups such as people with a mental illness; rather the purpose was to survey six disadvantaged communities as a whole. Nonetheless, a small sample of people who responded to the survey indicated that they did have a mental illness. This small sample, however, was unlikely to be a representative group, given the varied living arrangements of people with a mental illness, which can include shelters, refuges and boarding houses.69 It was also expected that many people may not self-identify as having a mental illness in the telephone survey. This expectation was realised with only 5% of the sample indicating that they had a mental health problem.70

As was mentioned above and will be further evidenced later in this chapter, people with a mental illness have been identified as among the most vulnerable and disadvantaged in our community.71 The relationship between mental illness and other forms of social and economic disadvantage make this a group of particular interest for the Access to Justice and Legal Needs Program.

We turn next to examining the final consideration, that is, the extent to which the legal needs and access to justice issues for people with a mental illness have been addressed in previous literature.



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:


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:


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.



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.



Summary


Many people in NSW experience mental illness, and this is often associated with other social and economic disadvantage. The extensive literature focusing on the crisis in mental health care and concerns about the human rights of people with a mental illness alert us to the vulnerability of this group and the difficulties they are likely to face in seeking to have their legal needs addressed. Given the focus of previous literature on mainly human rights and criminal justice issues, this report will focus primarily on civil issues for people with a mental illness. Importantly, in accordance with the design of this study, we were guided by the service providers and people with a mental illness that we interviewed, in determining the most pressing access to justice and legal needs issues.

Structure of this report

Chapter 2 of this report outlines the methodology used in this study.

Chapters 3–6 report on the findings of this study, bringing together the data collected through consultations and interviews. Pre-existing data sources and literature are also drawn on to place these findings within a broader context:


Chapter 7 presents a synthesis of the report’s major findings regarding the legal issues and barriers to accessing legal assistance and processes that people with a mental illness in NSW experience.



1  The Access to Justice and Legal Needs Program is described in the foreword to this report.
2  Law and Justice Foundation of NSW, Access to Justice and Legal Needs Program, Background Paper, 2002, <http://www.lawfoundation.net.au/access/background.html> (accessed July 2005).
3  B Wilson, Legal Straitjackets: When Reason Fails: Law and Mental Illness, in H Selby (ed.), Tomorrows Law, Federation Press, Sydney, 1995, pp. 295316 at p. 312.
4  Australian Health Ministers, National Mental Health Plan 20032008, Australian Government, Canberra, 2003, p. 5.
5  K Freeman, Mental Health and the Criminal Justice System, Crime and Justice Bulletin: Contemporary Issues in Crime and Justice, no. 38, 1998, p. 8.
6  Mental Health Act 1990 (NSW), sch. 1.
7  Mental Health Act 1990 (NSW), s. 9.
8  Freeman, Mental Health and the Criminal Justice System, p. 8. According to Carney, conditions such as addictions and co-morbidities have always taxed the law and service systems, and the lack of coordination in many jurisdictions fails both people with a mental illness and the community. While the NSW model in regards to such complex needs clients is broader and well grounded ethically in comparison to many others, there remains a need for greater linkages and accountability as between service providers, perhaps through a legislative regime like Victorias Human Services (Complex Needs) Act 2003. See T Carney, Complex Needs at the Boundaries of Mental Health, Justice and Welfare: Gatekeeping Issues in Managing Chronic Alcoholism Treatment?, in Current Issues in Criminal Justice, (in press), 2006.
9  World Health Organisation, ICD-10 Classification of Mental and Behavioral Disorders: Clinical Descriptions and Diagnostic Guidelines, World Health Organisation, Geneva, 1992, p. 5.
10  American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders: DSM-IV-TR, 4th edn, American Psychiatric Association, Washington, DC, 2000.
11  Australian Bureau of Statistics (ABS), National Health Survey: Summary of Results, cat. no. 4364.0, Canberra, 2001.
12  Australian Health Ministers, National Mental Health Plan 20032008.
13  Department of Health and Aged Care (now the Department of Health and Ageing), National Action Plan for Promotion, Prevention and Early Intervention for Mental Health, Mental Health and Special Programs Branch, Commonwealth Department of Health and Aged Care, Canberra, 2000.
14  M Oliver, Understanding DisabilityFrom Theory to Practice, MacMillan Press, London, 1996, p. 32.
15  M Oliver and C Barnes, Disabled People and Social PolicyFrom Exclusion to Inclusion, Addison Wesley Longman, New York, 1998, p. 17.
16  Disability Council of NSW (Disability Council), A Question of Justice: Access to Participation for People with Disabilities in Contact with the Justice System, Disability Council, Sydney, 2003, p. 19.
17  For a comprehensive overview of this shift in policy imperatives see T Carney, Disability and Social Security: Compatible or Not?, in Australian Journal of Human Rights, vol. 9, no. 2, 2003, pp. 139172.
18  P Butterworth, Estimating the Prevalence of Mental Disorders among Income Support Recipients: Approach, Validity and Findings, Policy Research Paper No. 21, Centre for Mental Health Research, Australian National University, Canberra, 2003.
19  A Jablensky, J McGrath, H Herrman, D Castle, O Gureje, V Morgan & A Korten, People Living with Psychotic Illness: An Australian Study 199798, Mental Health Branch, Department of Health and Aged Care, Canberra, 1999.
20  World Health Organisation, ICD-10, p. 5.
21  Oliver, Understanding Disability.
22  Due to the limited data specifically available on NSW, this section will include national data. Where NSW data is available, Australian data will be reported alongside this to alert the reader to any noteworthy consistencies or differences.
23  G Andrews, W Hall, S Henderson & M Teeson, The Mental Health of Australians, Mental Health Branch, Commonwealth Department of Health and Aged Care, Canberra, 1999.
24  M G Sawyer, F M Arney, P A Baghurst, Mental Health of Young People in Australia: Child and Adolescent Component of the National Survey of Mental Health and Well-being, Mental Health and Special Programs Branch, Commonwealth Department of Health and Aged Care, Canberra, 2000.
25  Jablensky et al., People Living with Psychotic Illness.
26  ABS, Mental Health and Wellbeing: Profile of Adults: New South Wales 1997 (Profile of Adults: NSW), cat. no. 4326.1.40.001, Canberra, 1998.
27  ABS, Profile of Adults: NSW.
28  Australian Institute of Health and Welfare (AIHW), Australias Health 2004: The Ninth Biennial Health Report of the Australian Institute of Health and Welfare, AIHW cat. no. AUS 44, Canberra, 2004.
29  ABS, National Health Survey: Summary of Results.
30  Andrews et al., The Mental Health of Australians.
31  Disability Council, A Question of Justice, p. 28, Human Rights and Equal Opportunity Commission (HREOC), Human Rights and Mental Illness: Report of the National Inquiry into the Human Rights of People with Mental Illness, HREOC, Canberra, 1993, p. 13.
32  Andrews et al., The Mental Health of Australians.
33  ABS, Profile of Adults: NSW, Andrews et al., The Mental Health of Australians.
34  Jablensky et al., People Living with Psychotic Illness.
35  Jablensky et al., People Living with Psychotic Illness, p. 88.
36  Jablensky et al., People Living with Psychotic Illness, p. 12.
37  See American Psychiatric Association, DSM-IV-TR.
38  Jablensky et al., People Living with Psychotic Illness, p. xv.
39  Dual diagnosis is a primary diagnosis of a psychotic disorder and a co-morbid diagnosis of a disorder due to substance use. See Jablensky et al., People Living with Psychotic Illness, p. 3.
40  Jablensky et al., People Living with Psychotic Illness, p. xvi.
41  AIHW, Australias Health 2002: The Eighth Biennial Health Report, AIHW cat. no. AUS 25, Canberra, 2002, p. 62.
42  Andrews et al., The Mental Health of Australians, p. 37.
43  The Kessler Psychological Distress Scale-10 (K10) is a 10-item scale of current psychological distress. The K10 records the negative emotional states in the four weeks prior to interview. The results from the K10 are grouped into four categories: low (indicating little or no psychological distress), moderate, high, and very high levels of psychological distress (which may indicate a need for professional help). See ABS, National Health Survey: Summary of Results.
44  Sawyer et al., Mental Health of Young People in Australia.
45  Andrews et al., The Mental Health of Australians, p. 15.
46  ABS, Profile of Adults: NSW.
47  ABS, Mental Health and Wellbeing: Profile of Adults, Australia 1997 (Profile of Adults, Australia), cat. no. 4326.0, Canberra, 1998.
48  ABS, Profile of Adults, Australia.
49  See also M Teesson & L Byrnes, National Comorbidity Project, National Drug and Alcohol Research Centre, Sydney, 2001, p. 8, NSW Health, The Management of People with a Co-existing Mental Health and Substance Use DisorderDiscussion Paper, State Health Publication No. (CMH) 000050, NSW Department of Health, Sydney, 2000, p. 6.
50  Andrews et al., The Mental Health of Australians.
51  ABS, Profile of Adults: NSW.
52  Andrews et al., The Mental Health of Australians.
53  ABS, Profile of Adults: NSW.
54  Disability Council, A Question of Justice, p. 77.
55  ABS, Profile of Adults: NSW, p. 6.
56  Andrews et al., The Mental Health of Australians.
57  ABS, Profile of Adults: NSW, p. 7.
58  HREOC, Human Rights and Mental Illness, p. 730.
59  Andrews et al., The Mental Health of Australians.
60  Jablensky et al., People Living with Psychotic Illness.
61  South Australian government submission, cited in HREOC, Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, HREOC, Sydney, 1997.
62  HREOC, Human Rights and Mental Illness, at pp. 69395.
63  HREOC, Human Rights and Mental Illness, at p. 698ff.
64  AIHW, Mental Health Services in Australia 20022003, Mental Health Series No. 6, AIHW, HSE 35, Canberra, 2005.
65  Butterworth, Estimating the Prevalence of Mental Disorders among Income Support Recipients.
66  The sections above on demographics and high prevalence disorders outlined the rate of high prevalence disorders experienced by different demographic groups. Given the much lower prevalence of psychotic disorders, this section will instead present the demographic characteristics of those who have psychotic disorders.
67  Jablensky et al., People Living with Psychotic Illness, p. 91.
68  Jablensky et al., People Living with Psychotic Illness, p. 91.
69  HREOC, Human Rights and Mental Illness, Jablensky et al., People Living with Psychotic Illness, NSW Parliament Legislative Council Select Committee on Mental Health (Select Committee on Mental Health), Mental Health Services in NSW: Final Report, Parliamentary Paper No. 368, NSW Parliament, Sydney, 2002.
70  C Coumarelos, Z Wei & A Zhou, Justice Made to Measure: NSW Legal Needs Survey in Disadvantaged Areas, Law and Justice Foundation of NSW, Sydney, 2006.
71  Butterworth, Estimating the Prevalence of Mental Disorders among Income Support Recipients, HREOC, Human Rights and Mental Illness, Jablensky et al., People Living with Psychotic Illness, Mental Health Council of Australia (MHCA), Submission to the Senate Select Committee on Mental Health, 2005, <http://www.aph.gov.au/senate/committee/mentalhealth_ctte/submissions/sub262.pdf> (accessed August 2005), M Palmer, Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau, Commonwealth of Australia, Canberra, Select Committee on Mental Health, Mental Health Services in NSW: Final Report.
72  The term crisis in mental heath care has been used in this report, given the weight of evidence provided, and the use of this and similar terms in the key reports that will be highlighted in this section. For example, the Select Committee on Mental Health, in Mental Health Services in NSW: Final Report, refers to endemic problems in the provision of mental heath services (p. 15). The MHCA, in Not for Service: Experiences of Injustice and Despair in Mental Health Care in Australia, MHCA, Canberra, 2005, refers to the crumbling mental health care system (p. iii). See also HREOC, Human Rights and Mental Illness, as well as G Andrews, The Crisis in Mental Health: The Chariot Needs One Horseman, The Medical Journal of Australia, vol. 182, no. 8, 2005, pp. 37273.
73  The inquiry into mental health services and resources headed by David Richmond was set up in August 1982. Its findings were contained in the Richmond Report, released in 1983. The report is primarily known for beginning the process of deinstitutionalisation, or the shift away from psychiatric hospitals and towards community-based care. The chief recommendations contained in the report concerned decreasing the size and number of psychiatric hospitals, expanding integrated community networks, separating developmental disability services from mental health services, and making changes to funding arrangements.
74  Select Committee on Mental Health, Mental Health Services in NSW: Final Report.
75  For example, see NSW Health, Planning Better Health, NSW Department of Health, July 2004, <http://www.health.nsw.gov.au/pbh/overview> (accessed March 2006), NSW Health, NSW Government Response to the Select Committee Inquiry into Mental Health Services in NSW, NSW Department of Health, 2003, <http://www.health.nsw.gov.au/pubs/g/pdf/inquiry_mhs.pdf> (accessed February 2006), Mental Health Co-ordinating Council, Submission to the Senate Community Affairs Committee Inquiry into Aged Care, 2004, <http://www.aph.gov.au/Senate/committee/clac_ctte/aged_care04/submissions/sub75.pdf> (accessed February 2006).
76  A Morris, K Muir, A Dadich, D Abello & M Bleasdale, Housing and Accommodation Support Initiative: Report 1, Social Policy Research Centre, Sydney, 2005.
77  Not for Service. See also MHCA, Submission to the Senate Select Committee on Mental Health.
78  See Executive Summary, MHCA, Not for Service.
79  Not for Service, p. 14.
80  Not for Service, pp. 14 and 239.
81  Not for Service, p. 15.
82  Not for Service, p. 15.
83  Not for Service, p. 62.
84  G Groom, I Hickie & T Davenport, Out of Hospital, Out of Mind! A Report Detailing Mental Health Services in Australia in 2002 and Community Priorities for National Mental Health Policy for 20032008, MHCA, Canberra, 2003.
85  Groom et al., Out of Hospital, Out of Mind!, p. 1.
86  Groom et al., Out of Hospital, Out of Mind!, p. 1.
87  HREOC, Human Rights and Mental Illness, p. 338.
88  Department of Family and Community Services, Commonwealth State Housing Agreement, <www.facs.gov.au/internet/facsinternet.nsf/AboutFaCS/programs/house-csha.htm> (accessed February 2006).
89  Tenants Union of NSW, Secure, Affordable Housing for All, <www.tenants.org.au/about/about_projects.html> (accessed February 2006).
90  NSW Health, Framework for Housing and Accommodation Support for People with Mental Health Problems and Disorders, NSW Department of Health, Sydney, 2002, pp. 132 at p. 3.
91  NSW Health, Framework for Housing and Accommodation Support for People with Mental Health Problems and Disorders, p. 6.
92  M Powall & G Withers, National Summit on Housing Affordability: Resource Paper, National Summit on Housing Affordability, Canberra, 2004, p. 30.
93  Powall & Withers, National Summit on Housing Affordability, p. 29.
94  Powall & Withers, National Summit on Housing Affordability, pp. 2930.
95  HREOC, Human Rights and Mental Illness.
96  For example, from 246 800 to 177 400 between 1986 and 1996. See Powall & Withers, National Summit on Housing Affordability, p. 31. See also Tenants Union of NSW, Secure, Affordable Housing for All.
97  HREOC, Human Rights and Mental Illness, p. 346.
98  Department of Family and Community Services, Commonwealth State/Territory Disability Agreement 20022007, <http://www.facs.gov.au/internet/facsinternet.nsf/disabilities/policy-cstda.htm#1> (accessed August 2005) (the past as well as the current agreements are found at this site).
99  For a detailed overview of progress in the treatment and care of forensic patients in Australian jurisdictions since the Burdekin Report, see D Chappell, Protecting the Human Rights of the Mentally Ill: Contemporary Challenges for the Australian Criminal Justice System, in Psychiatry, Psychology and Law, vol. 11, no. 1, 2004, pp. 1322, also D Chappell & T Boyd-Caine, The Forensic Patient Population in New South Wales, in Current Issues in Criminal Justice, vol. 17, no. 1, July 2005, pp. 527.
100  H Watchirs & G Heesom, Report on a Rights Analysis Instrument for Use in Evaluating Mental Health Legislation, Human Rights Branch, Attorney-Generals Department, Canberra, 1996.
101  See in particular N Rees, International Human Rights Obligations and Mental Health Review Tribunals, in Psychiatry, Psychology and Law, vol. 10, no. 1, 2003, pp. 3343, and T Carney, Mental Health Law in Postmodern Society: Time for New Paradigms?, in Psychiatry, Psychology and Law, vol. 10, no. 1, 2003, pp. 1232.
102  Palmer, Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau.
103  Palmer, Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau, p. 6.
104  Palmer, Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau, p. 173.
105  Palmer, Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau, p. 189.
106  Palmer, Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau, p 120.
107  Palmer, Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau, p. 53.
108  Palmer, Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau, pp. 119120.
109  T Butler & S Allnutt, Mental Illness among New South Wales Prisoners, NSW Corrections Health Service, Sydney, 2003.
110  HREOC, Human Rights and Mental Illness, Select Committee on Mental Health, Mental Health Services in NSW: Final Report, Disability Council, A Question of Justice.
111  S Henderson, Mental Illness and the Criminal Justice System, Mental Health Co-ordinating Council, Sydney, 2003, <http://www.mhcc.org.au/projects/Criminal_Justice/contents.html> (accessed August 2005), P Mullen, Mental Health and Criminal Justice: A Review of the Relationship Between Mental Disorders and Offending Behaviours and on the Management of Mentally Abnormal Offenders in the Health and Criminal Justice Services, Criminology Research Council, Melbourne, 2001, <http://www.aic.gov.au/crc/reports/mullen.pdf> (accessed August 2005), H Syme, Mental Health and the Criminal Justice System: A NSW Local Court Perspective, AIJA Magistrates Conference, Brisbane 2002, <http://aija.org.au/Mag02/Helen%20Syme.pdf> (accessed August 2005).
112  See, for example, Disability Council, A Question of Justice, MHCA, Submission to the Senate Select Committee on Mental Health.
113  Henderson, Mental Illness and the Criminal Justice System.
114  D M Greenberg, Interaction between Mental Health and Criminal Justice System, Mental Health and the Criminal Justice System: A Public Seminar, Institute of Criminology, University of Sydney, Sydney, 2002.
115  E Robinson & D B Rodgers, Depression and Changing Families: A Scoping Study of Mental Health and the Family Law System, Centre for Mental Health Research, Australian National University, 2004, B Rodgers et al., Mental Health and the Family Law System, Journal of Family Studies, vol. 10, no. 1, April, 2004, pp. 5070.
116  Productivity Commission, Review of the Disability Discrimination Act 1992, Report No. 30, Commonwealth of Australia, AusInfo, Melbourne, 2004.
117  See NSW Health, Review of the Mental Health Act 1990. Discussion Paper 1: Carers and Information Sharing, Legal and Legislative Services, NSW Department of Health, Sydney, 2003, also NSW Health, Review of the Mental Health Act 1990: Discussion Paper 2: The Mental Health Act 1990, NSW Department of Health, Sydney, 2004.
118  See earlier reference (at note 100) to another such evaluation, conducted by Watchirs et al.
119  This definition is based on Hazel Genns study, Paths to JusticeWhat People Do and Think about Going to Law, Hart Publishing, Oxford, 1999, p. 12. Genn makes the important point that the person experiencing the issue does not have to recognise it as legal in order for it to be a justiciable issue.