All jurisdictions in Australia have mental health laws which govern the treatment of persons with psychosocial disability. However, there is no uniformity in mental health legislation across Australia, and in many respects they breach, are inconsistent with or fail to fulfil obligations under CRPD. As a result, mental health laws do not adequately protect the right to liberty and security of people with psychosocial disability. (See also Articles 12, 15 and 17)
Mental health tribunals play a vital part in influencing the extent to which people with psychosocial disability are deprived of their liberty and security. Some of the broad issues relating to tribunals include:
inadequate preparation of reports, documents and professional assessments and advice leading up to a hearing;164
resource pressures leading to shortened hearings, use of video link and cramped or stressful settings used for hearings165 — for example, a study of 25 hearings in Victoria indicated that 36 percent of hearings took less than 10 minutes and 60 percent took less than 15 minutes;166
an unreasonably lengthy duration between detainment and the initial review of the detention order;167
a lack of knowledge by the person of the right to access information, independent advocacy support and legal representation, and the right to lodge an appeal in respect to involuntary status;168
a lack of sufficient discharge planning in place for people who have been subject to a detention order; and
a failure to strictly and explicitly limit the circumstances under which voluntary treatment can be made involuntary — for example, the voluntary status of a person can be changed to involuntary merely on the basis that the person is refusing a course of treatment or failing to comply with the instructions of a medical practitioner.169
Case Study
A man voluntarily admitted himself to a hospital’s psychiatric inpatient unit. At no time was the man given information regarding his rights as a voluntary patient, and there was a failure to provide him with services for his pre-existing diabetes. The man became concerned that his ‘treatment’ involved only medication and not a referral to a social worker, psychologist, or community counselling service, despite the psychiatrist recommending this. Although the issue was raised with hospital staff, no action was taken. The man notified staff of his intention to discharge himself (which was within his rights as a voluntary patient), however he was warned his status would be changed to ‘involuntary’ should he attempt to discharge himself. The man then attempted to leave the ward, and was subsequently reclassified as an involuntary patient and put into seclusion for 6½ hours, and stripped of his clothing. The man was not provided with an explanation of his change of patient status to involuntary or the reason for being placed in seclusion. Due to his experience in involuntary seclusion, the man continues to experience emotional and physical symptoms, including chronic depression.
