BEST INTERESTS OR LEGAL
RECTITUDE?: Australian MHT
stakeholder and case-flow implications
TERRY CARNEY
University of Sydney
What is my argument?
Neither best interests (nor ‘TJ’) a
sufficient, or sufficiently sound,
basis for MHT practice; need
nuanced re-balance of 3 domains:
(i) law (fairness…)
(ii) medicine (optimal treatment)
(iii) social (work, housing, ..
What is my structure today?
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[A] INTRODUCTION
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[B] TREATMENT AT HEART OF MHTs?
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1. Treatment planning & Oz MHTs; Medication etc concerns; 3.
What to do about it?
[C] LEGAL RECTITUDE HEARINGS OR ‘RELATIONAL
SPACES’?
–
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1. Background; 2. Clinical or legal?; 3. Best interest or legal
rectitude?
1. Consumer views; 2. Communication; 3. MHT ‘manner’;
4. Good practice hearing tips.
[D] ADVOCACY ISSUES
[E] CONCLUSION
[A] INTRODUCTION:
What is my material?
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Prior socio-legal studies (Peay, Perkins…)
4 yr Aust Research Council collaborative grant.
–
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3 MHTs (Victoria, New South Wales and ACT) & NSW Law
and Justice Foundation
Divergent State/territory law/practices
–
–
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Vic: clinician-imposed; MHT review @ 8 wks;
NSW: MHT-imposed; review prompt
Differing levels of legal representation; virtual hearings…
Human Rights Charters in Vic and ACT only
What were our methods?

Qualitative and quantitative methods
– Analysis of MHT records
– Analysis of ≈300 files in each NSW & Vic
– Hearing observations
– Interviews with consumers
– Focus groups
What has been found so far?
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Fairness & TJ (Carney, Tait, Chappell and Beaupert,
2007);
Leveraging’ treatment (Beaupert, 2007; Carney, Tait
and Beaupert, 2008);
Levels of representation (Carney, Beaupert, Perry
and Tait, 2008; Beaupert, 2009);
Charters of rights, multi-member panels and
‘time/resourcing’ (Carney and Beaupert, 2008);
NSW MHT role in property management (Beaupert,
Carney, Tait and Topp, 2008).
What is my mental health system?


Universal health care; limited mental health care
In 2006–07 for population of 21.8 million,
– 209,000 mental health-related inpatient
discharges, 75% from public acute hospitals
– 2,531 episodes of residential mental health care.
– Main diagnoses schizophrenia (59%),
schizoaffective disorder (10%) & bipolar affective
disorder (6%)
Service picture…

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Beds are rationed: 2,211 in public
psychiatric hospitals; 4,196 in acute care
general hospitals; 2,165 in government and
NGO residential mental health facilities
15 CTOs per 100,000 of population (cf 5 in
Canada or 3 in the USA)
Australia is not Ireland?

Australia: MHTs alone, few $$, lawyers or
clinical second opinions;

Ireland: MHTs (with 18 times the $$) + MH
C’ssion + Office of Inspector, + universal
legal representation + second opinions.
Best interests etc?

‘Best interests’ (Ireland?)
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‘Legal rectitude’ (Australia)
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–
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Empty/vacuous?
A ‘don’t argue’ conclusion, not reasoning…?
Marginal/ignored (Peay etc); Travesty if abbreviated?
‘Least restrictive…’ doesn’t really ‘translate’ for MH?
Supported decision making futures?
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Art 12 Convention on Rights of Persons with Disabilities
Victorian MH Review Panel reform guide
Some hypotheses
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Distress/powerlessness thesis
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Legitimacy/impact dilemma
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Acutely ill patients distressed?
Hearings rarely empower?
Need to maintain clinician confidence?
Unwilling/unable to engage ‘treatment’/social?
‘Charter-driven’ change?
[B] TREATMENT LIES AT HEART OF
MHT REVIEWS?
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Strongest message from consumers/carers
Concerns include:
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Distressed that unable to raise concerns at MHTs…
Compare overseas; eg Ireland
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Choice of treatment
Adverse side-effects of medication
Housing/cty support; discharge planning
Second opinion system
Office of Inspector of MH Services
Victorian Gardner Review shares concern?
For example #1
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I told him: “Doctor please today is my day.
For long time you treat me wrong way. You
give me the wrong medication. I suffer so
much but please today listen to me. I want to
speak. You listen until I finish please.” He
goes: “No, no, you don’t have the right to
speak. You have a mental health problem”
(NSW consumer, 2007)
For example #2
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I just was so distressed because no-one was really
listening to me, no-one was hearing what I was
trying to say about my feelings, they might have
been more interested in your actions, okay you take
your medication, but they don’t know how it feels to
have to suffer side effects. I was trying to explain
that and I don’t think I felt really heard so I was
bawling my eyes out, so was my mum and we just
both had to leave the room you know (Victorian
consumer, focus group, 2004)
So…Need from MHTs something more
like?

So what you want to make sure that the patient’s
complaint should be heard, looked into seriously and
then see what could be done. Any alternative
treatment can be tried or something can be given to
counteract the side effects. So we have to make
sure that the right things are done. So we listen to
the patient’s complaints, their general complaints
and we have to make sure that the clinicians also
have listened and have done something (Victorian
psychiatrist member, 2007)
[C] LEGAL RECTITUDE HEARINGS OR
RELATIONAL SPACES?
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Our consumers saw MHTs as like a ‘trial’
Anxious and fatalistic
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Distressed/powerless?
Contribution of physical ‘setting’
But also the ‘shape of power’
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Professional superiority/power
Example #1 Anxious/fatalistic
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What were you expecting when you went
in?
Not much really. I was just expecting them
to try to, not belittle me, but make me feel a
little uneasy. Said how all these things,
about how they have all the notes about me
and that and they expect me to behave a
certain way, or something like that (NSW
consumer, 2007)
Example #2 (Apprehensiveness)

I was a little apprehensive, I didn’t know what was
going to be said or happen. I didn’t know what they
would say to me and if I was to tell another person
about that I would tell them that it’s not anything
which they should worry about so that the next
person who goes in there they should know it’s not
something that will hurt you or get upset about or
worry about (Victorian consumer, 2004)
Settings are part of the problem?
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Can you describe the physical environment room or the
hearing space?
Sure, big officious looking room. Huge meeting table in the
middle, three chairs set up on the other side and my chair on
the opposite side of the table. Very overpowering. …
How do you think it could be set up better, what would you
suggest?
More of a round little table. Not a big board table like what I
had, doctors do it all these days, they have people sitting on the
corner not opposite, just the power thing (Victorian consumer,
2004)
Power/symbolism negative anyway?

So when you’re at the hearing so what do you think that hearing’s
doing? The hearing is mainly to waste your time. They can because
the doctor has the power of the government to keep you on CTO.
Even the hearing is just the shape of power. Different sort of power
(NSW consumer 2007)
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Some people are very agitated before and they’ll do their bundle like
you wouldn’t believe and then they’ll get in there and then, because of
the pressure and the stress, they’ll swear at everybody and walk out.
And you can see why it happens. One reason is the set up.
Everything seems to be set up against the consumer, just in the order
of the way the people speak. And they feel that they’re on trial and
their whole life is on trial and every misdemeanour that they’ve ever
done is going to be raised (NSW advocate 2007)
MHT introductions matter?
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You bet they do!
[T]hey started having discussions, you know addressing [the
advocate] and I said …”Listen do you mind if you at least give
me your names?”, as they didn’t introduce themselves and they
didn’t state their functions and [the advocate] picked up on that
point as soon as I mentioned it to her. … And one of the
members there took offence to that and said that she wasn’t
going to tell me… that wasn’t necessary, yeah, … – it went on
for about 5 or 6 minutes. And in the end they did introduce
themselves and they did tell me what their functions were
(Victorian consumer, 2004)
Endings too?
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Do you think often that people just leave a
hearing not knowing at all what happened
though?
People can. If they go and they’re nervous and they
don’t really know, first time in there. Legal process.
Never been into any sort of legal process before.
They would get some description of what’s going on
but they don’t hear it. They’re too frightened. They
do try and engage them though (ACT nurse, 2007)
So we need to learn to converse?

What I try to do is to get some sense of the person
I’m talking to and how they would normally interact
with other people and then work on those sorts of
levels. We certainly are in an environment where
there is lots of jargon around, so trying to dejargonise, particularly medical matters, is really
important. Making sure people really do understand
as best they can what’s going on is important. And
that varies enormously (Victorian member, 2004)
Adapt order/parties to taste?
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I’ve got me wife sitting there that I’ve been with for
20 years, married with her for 20 years, I live with
her and the judge’s made a decision without asking
me wife, which is very wrong because I don’t live
with the doctor, I live with me wife. So me wife’s got
a better idea how I am and I find it that the judge [sic]
should speak to me first then me wife to verify what
I’m saying is right. And then ok listen to the doctor
(NSW consumer, 2007)
Think about ritual/reception
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The doctor doesn’t talk to the client, the doctor talks
to the Board members. The lawyer talks to the
Board members. The client talks to the Board
members. So there’s no actual interaction between
the doctor and the client. Or the lawyer and the
client. And I think that makes a difference. … In
terms of ritual, I think that thing about the psychiatrist
member and community member also interacting
with the client is quite important (Victorian advocate,
2007)
Consumers are people
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Now that’s another thing, this is where they tended
to ignore [the consumer]. It must have been awful
for her. “All these people are talking about me and
yet not acknowledging me. I could be like a leg on
the chair.” That’s how she was treated. They talked
about her (NSW carer, 2006)
It was just the way that he kept saying “yes, yes, yes,
yes” to me. Sort of interrupting me when I was
speaking. Yes we’ve heard that before from the
person who advocated for me. Yet they asked me to
speak (Victorian consumer, 2007)
An ideal MHT ‘hearing protocol’?
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Thanks for attending/participating;
Introductions all round;
Conversational, not ‘formal’ tone of voice/manner;
chit-chat;
Address the range of issues, not just focus on the
‘legal answer;’
Ask consumers what ‘they’ think; & acknowledge
what is said (even if different);
Acknowledge the emotional side and provide
empathy/support;
Protocol (continued)
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Ask how consumers feel; their views on sideeffects; alternatives; non-medical issues;
Ensure everyone has a say;
Use non-technical language;
Provide summaries along the way;
Identify other outstanding issues & explore;
Be encouraging, empathetic and respectful.
[D] Advocates or support?
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A good question given equivocation about
lawyers role/cost?
Legal advocacy a basic right irrespective?
Lay/community advocacy as = priority?
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OPA submission to and endorsement from
Gardner review?
Victorian government position?
[E] Conclusion; where to now?

The health context is dominant. Little time is
available in which to check the legal fidelity of the
admission, or the clinical evidence on which it is
founded; information about the social or family
context is rare, and few clients are legally
represented or informally assisted by the presence
of family or friends. The bulk of the clientele are
seriously ill, and are ‘repeat’ players (with chronic,
relapsing conditions).
Flexible engagement of legal, medical
and social domains

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Potential for flexible MHT procedures, combining
liberty-protecting and the ‘allocative’ roles via best
elements of ‘case conference’ models (cf Wood,
1998)
Consider not only legal criteria but also issues in
medical and social domains
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Eg concerns about misdiagnosis, adequacy of treatment
(including access to psycho-social support), choice (and
side-effects) of medication,
discharge planning, community services, employment,
housing and involvement of friends and family.
Wood revisited

As Em. Professor John Wood recognised:
It is important to look at the structure and availability
of tribunals with [wider] factors in mind, rather than
merely the very narrow formal conception of the
tribunal as concerned almost wholly with the need
for a statutory order. It follows that the functions of
the tribunal are likely to be understood as a general
review and not merely a forensic contest as to the
justification of the Order (Wood, 1999: 134).
References
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Beaupert, F. (2007). 'Mental Health Tribunals: From crisis to quality
care?' Alternative Law Journal, 32(4): 219-223, 232.
Beaupert, F. (2009). 'Mental Health Tribunal Processes and Advocacy
Arrangements: "Little wins" are No Small Feat '. Psychiatry,
Psychology and Law, 15(2): 90-107.
Beaupert, F., T. Carney, D. Tait and V. Topp (2008). 'Property
Management Orders in the Mental Health Context: Protection or
Empowerment?' New South Wales Law Journal, 31(3): 795-824.
Carney, T. and F. Beaupert (2008). 'Mental Health Tribunals: Rights
drowning in un-“chartered” health waters?' Australian Journal of
Human Rights, 13(2): 181-208.
Carney, T., F. Beaupert, J. Perry and D. Tait (2008). 'Advocacy and
Participation in Mental Health Cases: Realisable rights or pipe
dream?' Law in Context, 26(2): 125-147.
References (continued)
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Carney, T., D. Tait and F. Beaupert (2008). 'Pushing the Boundaries: Realising
rights through mental health tribunal processes?' Sydney Law Review, 30(2):
329-356.
Carney, T., D. Tait, D. Chappell and F. Beaupert (2007). 'Mental Health
Tribunals: "TJ" implications of weighing fairness, freedom, protection and
treatment'. Journal of Judicial Administration, 17(1): 46-59.
Peay, J. (1989). Tribunals on Trial: A Study of Decision-making Under the
Mental Health Act 1983. Oxford: Clarendon Press.
Perkins, E. (2003a). Decision-Making in Mental Health Review Tribunals.
London: Policy Studies Institute.
Wood, J. (1998). 'What I Expect of My Psychiatrist: The mental health review
tribunal'. Advances in Psychiatric Treatment (1998), vol. 4, pp. 197-201, 4: 197201.
Wood, J. (1999). 'Control and Compassion: The uncertain role of Mental
Health Review Tribunals in the management of the mentally ill'. In: D. Webb
and R. Harris (ed) Mentally Disordered Offenders: Managing people nobody
owns. New York: Routledge: 127-140