This Monday 21st June 2010 a change was made to the review process for persons detained under the Mental Health Act in NSW, Australia. There have been concerns raised that this reduces the rights of detained persons, and will lead to longer periods of detention. Certainly my first response was along those lines. The concern is that people admitted under the MHA will be detined compulsorily for longer epriods, without external review. This raises a couple of questions: Will they really? If they are, is that a problem?
Firstly, will people be detained longer without review?
There is no change to the part of the Act requiring formal review of a detained person’s legal status, as set out in s.27 subsection (d):
(d) Step 4 Mental health inquiry or discharge
An authorised medical officer must notify the Tribunal and bring the person before the Tribunal for a mental health inquiry if:
(i) the person is found to be a mentally ill person by an authorised medical officer on initial examination in step 1, and to be a mentally ill person or a mentally disordered person on examination in step 2 or step 3, or
(ii) the person is found to be a mentally disordered person by an authorised medical officer on initial examination in step 1, and to be a mentally ill person on examination in step 2 or step 3.
The person must be brought before the Tribunal as soon as practicable after admission (subject to meeting the requirements set out above).
In other words, once a person has been initially detained by one doctor, and that upheld by a second, the person must be seen by the Tribunal “as soon as practicable”. What is different is that instead of being seen by a magistrate – which would generally happen within the first week (certainly at my hospital) – they will be seen (via videoconference) by the Mental Health Review Tribunal. This will happen:
after sufficient time has elapsed to allow the treating team to properly assess whether the person should continue to be detained in the facility or discharged and to develop an appropriate community treatment or discharge plan and for the necessary information to be obtained for the Tribunal to make the appropriate decision.
The MHRT says this is likely to take 2 weeks in most cases.
The more I look at that, the more of a problem I see. It really stretches the meaning of “as soon as practicable” – which is still what the Act says. Practically speaking however, the MHRT point out that most initial hearings till now have resulted in adjournments, with the person continuing to be detained while the treating team do all of what the MHRT talks about in the quote above. They also note correctly that a person detained under the MHA can ask to be discharged at any time, and if that request is denied, they can appeal to the tribunal – and these appeals are supposed to be heard urgently.
So maybe people will stay longer, maybe they won’t. Does it matter? – Or rather: what are the implications?
In essence what the MHRT seems to be saying is that the outcome will be the same, but a step will be saved, by not having an earlier hearing resulting in an adjournment.
I always contrast these things with the MHA I’ve been used to: the New Zealand MHA. In NZ a person can be detained after certificates by two doctors – similar to the NSW process – and that initial period of compulsory assessment and treatment is up to 5 days. By the end of the 5 days the psychiatrist must reassess the person, and can re-certify for up to 14 days. By the end of that time there must be a hearing (or earlier if the person appeals). So in other words there’s generally 2 1/2 to 3 weeks between compulsory admission, and the first hearing in NZ (though there is that clinical check at 5 days). My experience in NZ was that there were very few adjournments, so I wonder if delaying the initial hearing in NSW might indeed reduce adjournments, which are really a kind of nothing for the patient; they’re not subject to an order, but they still have to stay in hospital and accept treatment.
For those people who might have been discharged by a magistrate, but now won’t see the MHRT for a week longer, there is a clear implication: they’ll stay another week. I don’t know how often the magistrates did discharge people – it’d be very interesting to find out, though I’m not sure how to get at those sort of statistics. For everyone else it seems that indeed the only implication is attending one less hearing – which is not a bad thing.
The thing is though, I don’t think a system should be designed with the usual in mind; it needs to accommodate the more unusual and tricky cases. This seems to me to assume a default of continued compulsory admission and treatment (from that first hearing) rather than a default of autonomy and liberty, which can only be restricted for good reason – and with good evidence. This is a major philosophical problem I have with the NSW MHA: it is focussed (as the name says) on control. I’ve written before about the “mentally disordered” provisions, and the implications in terms of misuse of the MHA, and creeping social control, and I do find this concerning in that light. Despite the similar timeframes I’m not so concerned about the NZ Act, because it really does have a lot more in it about patients’ rights. The NSW Act pays lip service, but really it is about control and detention. For instance, in NZ the compulsory assessment and treatment can be inpatient or outpatient; here it’s only in hospital. In NZ if someone doesn’t have psychiatric symptoms the MHA cannot apply; here they can be termed “mentally disordered”.
Conclusion:
Basically, given the overall paternalistic and controlling thrust of the NSW MHA, I think its just that more important to be crystal clear about what rights patients do have, and be very careful to not erode them any further. In that light, I think I am once again somewhat concerned about this change, and I worry that cost and convenience might be the motivating factors – potentially at the expense of patients. Granted it’s only likely to be a small number, but even a few people detained longer than they should be is too many.
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A quick comment; the problem here is the reluctance to make definitive statements. In most cases there is a clear distinction between those who meet the NZ criteria for a compulsory order (abnormal state of mind causing serious dangerousness or incapacity to care for self) and those who don't, and judges and clinicians need to be prepared to acknowledge that people who am indeed be helped by treatment have a right to refuse if neither dangerous nor incompetent. Therefore, they should be released, not adjourned without an order made, when the effect of an adjournment is, as it is worded in the Act, an Interim Order.
Nicely put. Of course an adjournment is an interim order, but it is done as though completely lacking in consequence – when of course it is not.
I know you have the legal right to do what you do. It’s been given to you by the government. But it is not right. It is wrong. For you to be able to detain a person that the police cannot is just plain nonsense. To then drug people against their will, people that you shouldn’t have in your clutches to begin with is bastardry pure and simple. It’s an attack on a person and you know it.
You can rabbit on all you like about saving lives and reducing distress. That’s garbage. You pander to the uneducated, gutless, lazy public.
If a person is noisy or stinks there is a law to deal with it. People who do stupid things like wander naked or leap into traffic should be dealt with by the police and the courts. If they tell you that god or aliens have taken over their mind tell them that they are lying and talking bullshit and increase the severity of their punishment. If children commit suicide pillory their parents.
If people are stupid enough to seek out psychiatry for themselves, fine. But any type of misinformation, persuasion, coercion or force should be banned.
Rod, first if all thanks for taking the time to read and comment in so many of my posts – I do appreciate it.
However, your tone in this comment in particular leads me to think you misunderstand me. I do not delight in this power; it makes me feel very uncomfortable – as, I believe, it should.
You appear to be taking an identical position to Thomas Szasz. While Szasz poses some important challenges that psychiatry should not ignore, he takes it too far in arguing against any form of compulsory treatment. That position is fine for those who have the capacity (cognitive, motivational, financial – to say nothing of insight) to seek out – and pay for – the sort of help offered by Szasz and others (including you, I take it). It ignores or neglects those much more seriously ill, who lack that capacity.
The current system is not all that good (in fact I find its emphasis on control most disturbing) and I only rarely detain people under the Act – and then only after much careful thought. But a blanket statement that it should never happen is short-sighted, ideologically-based, and somewhat foolish. I have had more people thank me for compelling their treatment when acutely ill than have been resentful.
I find it odd that you contend my desire to help psychiatrically ill people is bastardry, and to on to say they are lying and should be locked up for transgressions that result from their illness. To disbelieve so vehemently in psychiatric illness is against the evidence; while we have major classification problems, that does not take away from the suffering – and real illness – of people with schizophrenia, bipolar disorder, melancholia and so on.
These disorders, and the consequent problems, were described before psychiatry, and well before psychiatric treatment. We have not created them, and we will not ignore or neglect them.