The Australian Mental Health Tribunals - Research Paper Example

The Australian Mental Health Tribunals: Scheduling, Institutional Treatment, and Review Mechanisms Introduction There have been several questions on whether the Australian mental health laws need to follow a social, legal, medical model or simply subsume within the general health care. This is due to focus on the civil rights roles in the adjudication of whether mentally ill people in Australia require involuntary health care. Currently, Australia has ‘court diversion’ system as well as a Mental Health Tribunals (MHTs), which divers some special circumstance case out of ordinary court processes towards treatment in mental health facilities. Nonetheless, the central role of the MHTs, courts, and associated gate-keeping process have been neglected the researchers. Such stand surprises considering their civil roles is adjudication on whether there is need for involuntary mental health care for those considered mentally ill, their medical function of arming the medical practitioners with the authority of assisting the patients to recover, and their social role of ensuring steady balance within the interest of the community, practitioners, families, and friends. The processes of MHTs often provide the opportunity of protecting and extending the rights for a smaller group of people with restricted areas of mental illness and potential candidates for compulsory treatment1. These rights include freedom from arbitrary detention and refusal to treatment in cases where the proposed treatment under the order is considered inadequate and inappropriate. Moreover, the tribunal need to uphold positive right to ensure that it provides quality healthcare. However, the tribunals often fail to play such roles which calls for the need of undertaking review of MHTs2. In some occasions, the tribunal hearing might on certain occasion offer the ground for meeting or dialogue between different stakeholders. In Australia, the MHTs have failed to prelude the efforts especially for the parties to work towards ensuring the achievement of better outcomes3. It is clear that such outcomes have been overlooked within the community’s treatment plan. Therefore, the Australian tribunals need to ensure that they consider these issues while ensuring that the treatment plans capable of the implementation. It is from such background that the paper will analyze the Australian MHTs through covering issues associated with federal diversity of the mental health laws and system of mental health used in the country. In addition, the paper will also present, decision-making process and outcome of the MHTs, jurisdiction and the hearing process, Compulsory Treatment and Procedures of Review, and treatment review in actions. Federal diversity of mental health laws in Australia The debates on the general mental health are vital especially on the equally neglected questions of resourcing of the barriers associated with enjoyment that seriously mentally ill people might require or the follow-up care that the patients could require with an aim of reducing relapse. However, the major concern within the MHTs is the manner in which the tribunal discharges its mandate especially on misunderstands between the welfare and the rights of the patients, which include balancing the best interest of the community, and patients and weighing the treatment requirement and future risks4. Based on the viewpoint of the patient, the diversity in the legal approaches that determines the framework of mental health laws in each of the Australian states and territories is considered less than ideal. This point remains problematic among the patients and clinicians moving between the jurisdictions despite the recent convergence within the formal recognition of the international standards5. From the research viewpoint, diversification provides an opportunity of studying comparative merits of various ways of doing things although there is need to take considerable care to search deeper institutional differences. Such finding is true of the adult guardianship, which proves to be the characteristic of the community treatment orders; as a result, it is no less likely to be true within the MHTs. Several systems of mental health care Many people are culture bound having limited knowledge on various ways on the construction of the mental health laws in the other countries or in their earlier history. However, the choices regarding the ways of making decisions on involuntary treatment orders and the point in which they occur within the overall management of the patient with time both vary and of main significance on shaping the experience of the patients. For instance, since 1983, UK has been viewed unique since the major gatekeeper for involuntary admissions are mental health or the approved social workers6. In UK, USA, Germany, and Belgium, court authorization of the admission had adopted initially framework such as front-end filter. In 1913, UK deserted the practice and came up with legislation in 1959 known as post facto merits review through its multidisciplinary administrative tribunal7. Australia imitated the idea of the review tribunal; however, it ensured provisions for frequent automatic reviews and those prompted through special request. The clinicians have say on matters relating to the involuntary admissions in Norway, which is the best practice. However, the clinicians could acquire early sway as in Victoria, Queensland, South Australia, and Western Australia. This is achievable by authorization with an aim of ordering given period of patient care while waiting for review and validation by the MHT. Nonetheless, in the Danish law, there a provision for the police to order for the detention of the people they consider meeting their dangerous criteria8. There is consistency between the original UK model and the judicial gatekeepers who continue to play minute and significant roles in certain places including New South Wales, which is a state, considered to have the magistrates promptly adjudicating for the whether the person in question is mentally ill. Moreover, in such state, the magistrates also determine those leaving the mental health tribunals with an aim of providing a less pressured review of the justifying to continue the committal. In New Zealand, there is consideration of the family court judge before the tribunal. The choice of the designs and to fund of the Australia’s mental health system has the ability to transform the experience for those considered mentally ill. For example, most of the multidisciplinary often concentrate on the assessment of health and safety of the patient. Besides, there have been reductions in funding and policies in relation to deinstitutionalization with the hospitals staying declining both locally and oversees which could be reflected on the few order discharge on the review9. Generally, there is complexity and variation in the place of MHTs within the mental health care and the welfare services systems. If the Australian mental health tribunals exhibit various features of judicial activism, then it is clear that they would be focusing on the established politico-legal tradition of the judicial while re-ordering the institutional affairs. For many years, the judicial determinations played important roles in the reformation of the administration. Decision-making and treatment outcomes from the mental health tribunals A MHT hearing often generally involves a multidisciplinary panel that comprises of different people: a legal member, member of the community, psychiatrist, synthesizing the inconsumable narrates of the lawyers, patients, and families. Nonetheless, in most cases, the formal legal outcome of hearing continuation of the compulsory treatment tells people on what normally happens during the hearing. In a study undertaken by Perkins on the government commissioned research within England and Wales found that, the hearing normally provides the opportunity of improving therapeutic outcomes for the patients10. The hearing allows examination of the details of patient’s treatment and progress for those without connection to the hospital; it also ensures provision of controlled settings for the patients to talk to their registered medical officer through the advocate. Irrespective of the formal decisions from the tribunal, the hearing could provide a chance of the discussion of treatment procedures. These factors contribute to suggestions that the mental health hearings become the case conference. Such criticism often alludes to the off-asserted rifts that occur between the clinical decisions and adjudication through the MHTs. From the analysis, it is evident that the wording of the mental health legislations tends to preclude a strict division that occurs between the clinical and adjudication decision makers. Whenever the MHT panel recommends revision for the treatment plan of clinicians prepared for individual appearance while considering the wish of the individuals to live close to the family members, then it is clear that the panel would be overstepping on the legal boundaries and entering into the domain of the clinicians11. These overlapping often raise complex questions whose answers depend on the precise statutory rules with every jurisdiction. While examining various provisions within the Australian mental health laws, it is evident that the tribunals need to consider certainly the level of treatment provided to the patients under the order of compulsory treatment. Thus, it is important to consider adequate measures of remedying such inadequacies. In Australia, the judicial adjudication has impacts on both the political and administrative policies are the major characteristic of the law since it began. Realization of the rights through the MHTs activities has several impacts on the clinical decision-making considered traditional which is traceable to the Roman laws. In addition, the Twelve Tables of Roman law managed to codify some of the basic sets of legal rights. As a result, the MHTs could interpret the law in a progressive manner to an extent of producing institutions unknown to the earlier laws Australian mental health tribunals (MHTs) There are several shared characteristics in the Australian MHTs, which tend to differentiate them from the court-based civil committal activities as witnessed in countries like America where there is limitation of involuntary committal from the constitutional ruling in situations considered to have significant and immediate risks to the public. Therefore, it is clear that the proceedings of America have much more of the social control compared to the welfare of the patient. Firstly, the Australian MHTs have not been predicated with the adversarial model. However, the country’s MHTs tend to operate in conformity with the logic of inquisitorial bodies while ensuring that such bodies have adequate understanding to reach the required level satisfaction, which defines the decision12. It is vital to note that the adversarial process is outlawed rather that it is not the usual stock in trade. In simple terms, the excess version of the adversarial process could be discouraged. In Australia, in relation to the adult guardianship tribunals, the MHTs often compromise of an inquisitorial pocket of the law, which involves focusing on the truth seeking exploration of the welfare of the patient within the framework rights through the court means. It is clear that some of these differences could surface ones rather than the ones considered discernible at the operational levels of various systems. Each of the Australian state and territory has its Mental Health Act, which enable the patients with several mental health complications detained and treated without their consents. Even though the criteria used in these states and territories differ, it is common the each of them show that the person has mental illness; therefore, the patient needs treatment or could either harm the others or self-harm. In Australia, the psychiatrists decide on the commitment and treatment of the patient13. However, the MHTs are responsible for reviewing such decisions with a given period. As a result, such laws form the structures, which require the practitioners to substitute as the decision makers. Currently, there are ongoing review on the criteria and processes associated with the involuntary detection and treatment within the Australian Capital Territory (ACT), Western Australia (WA), Tasmania, and Victoria. Nevertheless, these states and territories have diverging views on the mechanisms of framing the criteria. Australian tribunals and Treatment planning In Victoria, since 2003, the state enacted the law authorizing the psychiatrists to prepare individualized treatment and schedule plans for the involuntary patients. However, it is important that the Victoria Board reviews whether the prepared plans followed the required procedure and integrates various legislative requirements such taking into account the wishes of the consumers and other associated alternative treatment benefits. In the NSW MHTs, while making involuntary community treatment Orders (CTOs) it is important to consider formulation of a treatment plan.14 The ACT MHTs on the other hand requires the existence and consideration of the orders including the alternative treatments, available services, and programmes such as the purpose, the benefits that the person is likely to derive, and various forms of side effects, risks, distress, discomfort, and various demerits associated with such. However, it is important that the tribunal does not order the administration of a particular drug or make order on the manner of carrying out various clinical procedures. Recently, in 2009, the Australian legislations empowered MHTs with an opportunity of ordering that the treatment of the patients and associated care plan apply to the person under review. In a study undertaken by the Australian MHTs, it was clear that the interviewed people were surprised and disappointed considering that the treatment issues were not addressed. However, such reaction is unreasonable in Australia considering the efforts in place by the MHTs in ensuring adequate measures are taken to ensure welfare of the mentally ill are considered. Besides, it is not clear where people could go considering their strong grievances and quality assurance machinery including the mental health commission. It is evident that most Australians appear to lack input in their treatment plans and schedules. In some jurisdictions, there are no plans as well15. Within Australian context, there is limitation of treatment plans in the practice of MHTs. Initially, the members of the MHTs were quick in pointing out that the treatment was not within their purview; however, most of them were prepared informally to offer suggestions regarding the healthcare. On the other, few of the health practitioners appreciated the level of improved accountability associated with the need of ensuring the availability of the treatment plans. The Jurisdiction and the process of hearing At the conference marking the 15th anniversary of the Mental Health Review Board, the Australian government made consideration on the international human rights obligation on matters associated with the mental health review tribunals16. According to the state, the fundamental role of the mental health review tribunal was to ensure engagement on time, reviewing the external decisions depriving the patients of the freedom and their liberty of bodily integrity. However, it might be significance assistance for Australia to revisit its notion of timelessness and externality and observes the manner in which the board conducts itself while undertaking the reviews and executing its mandate of hearing the reviews17. Within the Victorian context, the patients admitted to the hospital as involuntary patients do not have their freedom reviewed by any external body considering that the Mental Health Act seems to stipulate that such kind of review need to take place within the eight weeks of the initial order18. Initially, the reviews were undertaken within four to six weeks of admitting the patient in the hospital; however, through the amendment of the Act in 1993, the period was pushed to the current of eight weeks. Thus, it is evident that there is no scheduling of the reviews until the person in question has been an involuntary patient for not less than six weeks. Nonetheless, most of the involuntary patients have been able to leave the hospitals before the elapse of such period. Besides, most people in the CTOs, who to some extent have been considered to lose some liberty from the direction of where to live and them that have lost their freedom of bodily integrity due to the direction that they have to comply with treatment regime. By enacting the Victorian Charter of Human Rights and Responsibilities Act, the state might have to reconsider the timeliness associated with external reviews of the involuntary patients especially since Chapter 21 of the Acts focuses on the right to liberty and security that could only be compromised in accordance with the processes and procedures that the law follows19. It is surprising that people admitted to the hospital in NSW as involuntary patients are reviewed by external body within less than seven days and the reason behind why the Victorian patients are not reviewed externally20. Undoubtedly, it is evident that the busy clinical schedules and cost are the major reasons behind such differences with an aim of effectively limiting the number of people whose detention within the hospital were involuntary and reviewed by the Board. Even though the financial and clinical concerns are valid, it is important that the states do not ignore the human rights. Therefore, if there is to be the need for more external review, then there is need to do so in a manner considered just, cheap, quick, therapeutic, and possibly. Australian Mental Health Tribunals Review Mechanisms There are strong grounds on the need to review the manner in which the board conducts its hearing processes. One of the areas that require improvement is enhancing the objectives of the therapeutic jurisprudence through alteration in the manner in which the board undertakes its responsibilities. In the past 20 years, the board has done great deal within the limits of its state powers and rendering its hearings in various ways: non-adversarial, inclusive, and informal21. There is a wide body of law which mainly focus on the natural justice or the procedural fairness that tend to accompany the notion of fair hearing through judicial body considered quasi such as the board. The rules and natural justice binds the board. However, these rules are not precise due to the manner in which the superior courts have maneuvering rooms while supervising the processes of the tribunals22. It is regrettable that these impressions created by the rules stifle innovation. Natural justice often requires the board to act in judicial manner while approaching issues associated with impartiality and fairness. The inviolability of the rights to hearing by an impartial decision maker, the right of accessing the evidence and submissions that contravene their interests are unquestionable. However, what could merit consideration is the manner in which the patients exercise such risks23. Currently, it is important that the board conduct the hearing through involving the relevant parties except during exceptional circumstances. It is notably unlawful for the board to conduct its activities with the relevant parties privately and conveying the results to the others without reaching the decision. Usually, the traditional hearings, irrespective of the manner in which are conducts, they lead to unnecessary formality level and could lead to creation of potential needless confrontation between the patients and the clinicians. Moving away from the tradition legal structures, conducting meetings of gathering facts, and offering audience to the interested parties prior to the decision-making is anathema24. The board continues to enjoy high level of externality, which continues to be a challenging issue. Since the inception of the board, there have administration connection to the Department of Human Services. Interestingly, the board is among the tribunals that were never drawn within the tribunal established about ten years ago: the Victoria Civil and Administrative Tribunal (VCAT). While including of Mental Health Review Board in the VCAT could merit consideration specifically in the advent of the Western Australian precedent, there might be grounds for the establishment of a separate mental health and guardianship tribunal. Treatment Review in Actions There is several Australian statutory indicating that the principle of “no control without effective care” is enshrined within the mental health laws and regulations25. In addition, the role of treatment review in the MHTs is to uphold such principle. Many commentators are advocating for the principle of “reciprocity” that precludes the derivation of liberty unless there is a corresponding role of the relevant mental health services to ensure provision of adequate and desired treatment. Nonetheless, the exact role of the mental health tribunals within such model seems to be ambiguous. From practical point, it is important to note that the decision-making in the tribunal could take a nuanced direction especially when influencing the treatment that the person receives from the health and community services26. The patients could choose from the involuntary treatment within the community that offer great freedom and hospitalization, selection of maximum term for the order or focusing on the reduction for consideration of the needs of the individuals, and making the changes for the treatment plan. Moreover, the tribunal panels could at time focus on curving their clear roles in a bid to exercise some of the control over the required treatment planning direction irrespective of the availability and absence of expressing the powers. Such processes often involve making informal recommendations. The board could use adjournment as it avenue of achieving an outcome that is negotiated by different parties or in some extreme cases, as a method of putting pressure on treating the teams to ensure there is following of preferred action course. A study undertaken by the Australian MHTs revealed that most psychiatrists considered the approach used by the Board unacceptable considering that it intrudes into the clinical domain of diagnosis and treatment. Mental health tribunals in their defense in treatment review role, it is vital that they consider external decision making since it involves compulsory treatment, which is unavoidably regarding control over the lives of individuals and restriction of people’s freedom. There are care-related issues that often emerge during the proceedings of the MHTs are not the domain of a single profession and cultural group. Therefore, it is important to ensure responses from varied service systems, professionals, and agencies with an aim of providing the required optimum care. Normally, there is fragmentation between the concerned parties who to some extent lack parity within their visions of the appropriate care and support27. Besides, the psycho-social support often supported by MHTs could fail to amount the required “effective care.” With the multidisciplinary approach used in the MHTs, the tribunals are equipped properly to balance different considerations such as legal, social, and clinical the provision of mental health care. These practices would lead to meeting the objective of the mental health legislations, which in turn provides the best care in a manner that less restrict the civil rights of the patients. Compulsory Treatment and Procedures of Review The major method of ensuring that the patients are not detained arbitrarily in the name of pursuing various mental health regulations within a given period is to undertake a review by the MHTs at some set points with the trajectory of the contact of patient with the mental health system. Within the Victorian context, the approaches used tend to lean towards the clinical model, which tends to confer certain substantial determinative powers to the psychiatrists including the powers of initiating the detention period for the patients prior to the initial mandatory review by the MHTs board. Moreover, the practitioners also have the powers of making the CTOs that last for about 12 months without the board’s approval. Upon the initial review, it is important that the board conduct reviews on involuntary treatment orders. Although such model might subject MHTs to various criticism considering that it does not have adequate procedural protections, it allows the clinicians to exercise high level of flexibility in responding to the treatment needs of the patients could be vied as a benefit. However, in NSW, the MHA 2007 provides privileges to the due process as it places high premium on the liberty of the patients28. In addition, the Act also frequently mandate the intervention of the legal body with an aim of initiating and continuing the compulsory treatment for a long duration. After the assessment, the detained patients have to be brought before the magistrate with an aim of conducting a mental health inquiry which could result in variety of outcomes and other options of authorizing the detention for the treatment and observations. At the end of such process, it is important to undertake a mandatory review by the NSW Mental Health Review Tribunal. The case differs within the ACT MHA that uses a hybrid model. The ACT Mental Health Tribunal tends to have more control within the formal level; nonetheless, the psychiatrists have consideration after authorization of the compulsory treatment by the tribunal. Additionally, the clinical bent of the ACT legal framework, which is evident from supervisory role played by psychiatrists in deciding the places of residence after the tribunal, makes order on the involuntary treatment29. Once the person becomes an involuntary patient, it is important to determine specific medical treatment that the patient needs to receive and the category of decision-making that could impinge the rights of people to refuse the treatment. Conclusion Mental illness affects many Australians. Involuntary treatment systems for mentally illpatients tend to trigger gate keeping and reviews of different powers associated with MHTswhich is most cases uncommon situation. Tribunal hearing experiences are important for both the rights and welfare of the patients. However, some research reflects humiliation and dehumanization experiences of the patients with the findings reflecting inadequate consultation, making decision on behalf of the mentally ill, and enforcement of the archaic laws that affects them even more. In addition, there is limited international and local research on the MHTs. Besides, there is need for consideration of the needs of patients and high reasonable levels in terms of fairness and respect for the dignity of patients during hearings. Through the mental health law, Australia managed to establish its therapeutic jurisprudence, which is responsible for looking at the manner in which the system is designed to assist the mentally ill patients to recover and achieve their desired mental health. Despite the steady rise of Mental Health Courts in Australia, there is consistent debate on whether they are necessary or detrimental to those suffering from mental illness. In addition, for many years, the practitioners and families of mentally ill patients have been showing concern on the hearing processes of the court and tribunal, which they claim, are detrimental to the mental health of the person whose treatment status is under review. In part, the manner in which the legal systems operate have emerged considering the way views itself: impartial arbitrator of justice. Traditionally, the notion of justice was viewed to have emerged from rigid adherence to impersonal conduct and rules. Such adherence is consequential considering the courts and the tribunals are often the places that the emotional well-being of the patients is unconsidered in any manner considered meaningful. The evaluation of the people on fair judicial hearings are influenced greatly by the opportunities provided the procedures for the participation of people and trust of the judgement by the authorities. References Administrative Appeals Tribunal. (2016). 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