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Draft Victorian Mental Health Act

The Draft Victorian Mental Health Act proposes to allow for not only psychiatrists but also psychologists, nurses and social workers to be able to make an Assessment Order which allows for a child or adult to be detained for 72 hours to be assessed by a psychiatrist. 1

A psychiatrist can "treat" any child subject to an assessment order who is in a psychiatric facility, including forced drugging, restraint, seclusion and electroshock (if over 13 years of age) without the need for their fully informed consent as they can do with anyone who is involuntarily detained, thereby taking away parental rights. The same can occur to adults. 2

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The criteria for placing a child or adult under an assessment order is open to broad interpretation, one criteria being that the person "appears" to be mentally ill and there are no guarantees within the proposed legislation, which insures a parent or guardian must be informed prior to children being placed on an assessment order by a psychiatrist or mental health practitioner. 3

In 2007-08 there were 200 Victorian children involuntarily detained, including 62 aged 10 to 15 years. 4

A psychiatrist could also restrict a child's or adults right to phone, write or have visits with people of their choosing if they determine it is in the best interests of the patient. This means a parent's right to communicate and visit with their child could be removed. 5

Recommendation: No child or adolescent under 18 years should be involuntarily detained and treated. Parental or legal guardian's consent should always be obtained for any psychiatric treatment. There should be no difference in parental rights with psychiatric treatment than there is with any other medical treatment. It is completely unacceptable to remove parental rights where those parents are not subject to legal orders preventing them access to their children.

Involuntary Treatment Orders

Only a competent, independent and impartial court after a fair and public hearing should be able to take away a person's liberty. 6

A section in the proposed legislation allows for treatment to be given REGARDLESS if the person has the capacity to consent and does not give consent. This includes voluntary patients. 7

Under the draft bill, anyone placed under any order has the right to apply to the mental health tribunal for a review of such an order. 8 However they could wait up until 10 days for this to occur and in the meantime be forced to receive psychiatric treatment. 9

Recommendation: Involuntary commitment should be abolished as it deprives individuals of dignity and liberty when they have broken no law. Until such time as it is abolished the following legal protections are needed: 1) No person other than a judge or magistrate should have the right to order the imprisonment of any person. 2) The dangerous person who is violent should be dealt with independent of psychiatrists. Currently, the criteria used to involuntarily detain someone include the person being a danger to themselves or others, a condition that psychiatrists admit they cannot determine or predict. Criminal statutes exist to address these instances. Professor of Psychiatry Emeritus Thomas Szasz advises: "All criminal behaviour should be controlled by means of the criminal law from the administration of which psychiatrists should be excluded." 3) A person is deemed to have a "mental disorder" where it can be determined by a physical, or medical test, such as a brain scan, X-ray, or blood test and it is beyond reasonable doubt that involuntary hospitalization is required as a last resort. 4) The criteria of "appears to be mentally ill" and refusal of treatment should be removed in its entirety from the Victorian Mental Health Act.

Free legal advice should be available to all patients under Involuntary Treatment Orders (ITOs). The South Australian Government pay for a lawyer of the person's choice if they are involuntarily detained for hearings and this should be the same in Victoria so everyone has legal representation. 10 Advocates as well as legal representatives should also have right of entry to safe harbour of patients in care.

Electro-Convulsive Therapy (ECT) on Children and Involuntary Patients

It is proposed that ECT be illegal for children less than 13 years. Yet a 13 to 18 year old can still receive this barbaric treatment if determined by the Mental Health Tribunal - not by the parent or guardian. 11

Adults can still be forced to have ECT using legal "loop-holes" including "emergency treatment" within this proposed legislation and it will remain legal for pregnant women and the elderly to receive ECT. 12

In 2006, the Victorian mental health sector administered 1,706 people with 17,414 "treatments" of ECT. These figures are higher than the previous three years. In 2007/08 there were 8 juveniles and a further 107 young adults given ECT. 13

Recommendation: ECT should be banned from use on all persons, but it is especially destructive when used on children and teenagers under 18-year olds, pregnant women and the elderly over 60 years of age and needs to be banned for these age groups. WA is looking at banning ECT for use on any child under 16, Victoria needs to lead the way and ban its use on any child under 16, the elderly and pregnant women. 14 ECT should also be forbidden for use on any non-consenting person, whether involuntarily or voluntarily detained in a psychiatric institution or facility.

Restraint and Seclusion of Children and Adults

Under the proposed legislation, a psychiatrist or senior registered nurse on duty can put a person in restraints or seclusion regardless of whether they are children or adults, pregnant or elderly. 15 In Victoria in 2006, there were over 1,000 instances of seclusion greater than 12 hours. 16 Seventy nine percent (522) episodes of mechanical restraint were on the elderly and twenty eight episodes of restraint were for children under 18. 17 18

Recommendation: The use of physical or mechanical restraint is prohibited on anyone aged 18 or under, the elderly and pregnant women. No restraint procedure can be determined to be a part of the person's "therapy" or treatment plan.

Psychosurgery on Children and Adults

Psychosurgery (operating on the brain to change the way a person thinks including Deep Brain Stimulation, which is the implanting of electrodes into a persons brain and connecting them to a pulse generator in the chest and electricity is then passed from the pulse generator through the electrodes) is illegal for children less than 13-years-old but not for 13 to 18 year-olds. 19 20 Nor is it for adults. Already banned in New South Wales and the Northern Territory, this is a practice that continues in Victoria despite its acknowledged controversy. 21

Recommendation: Psychosurgery, in all its forms, is banned in Victoria.

Informed Consent and Dangerous Psychiatric Drugs

Known side-effects of psychiatric drugs include: Diabetes, heart failure, hallucinations, nightmares, suicidal thoughts, self-harming, suicide, obesity, worsening of original symptoms, death, etc. An astounding 4100 Victorian children and teenagers including 618 under 10 year olds have been given antidepressants alone, yet the Therapeutic Goods Administration have not authorised their use in any child under 18 for depression.

The exposure draft does not explain explicitly what the forms and the information which will be given to the patients and is vague about the information regarding side effects and alternative treatment options. Therefore there are no guarantees of the safety of children or adults alike with regards to informed consent and dangerous psychiatric drugs.

Wherever there is a right to refuse treatment, there is a way around it. 22

Recommendation: All and any known side effects of any proposed treatment must be given to the parent, guardian or patient in written format in their own language or clearly explained to the person by their next of kin, nominated person or lawyer in their own language.

Assistance should also include any necessary counselling, dietary changes, etc which have a beneficial effect and it should be an offence to prescribe drugs 'off-label' such as antidepressants for depression to children under the age of 18. This assistance should also involve locating the real cause of each and every person's problem and helping resolve that. A new definition needs to be added to the Act for 'safe and effective' treatment which should mean - it does not have 'any' risk of long term side effects, does not lower the person's IQ, mentally impair them in anyway, or have any risk of permanent physical or mental deterioration.

Advanced Statements and Nominated Persons

The draft proposes that an individual can write an advanced statement (also known as a living will) which is a statement of what the person agrees to have happen in the event of becoming incapacitated. 23 It also proposes that an individual can nominate another person to act on their behalf in the event of incapacitation. The "loop hole" is that if a psychiatrist's actions are inconsistent with such a statement they must report this to the patient, the patient's nominated person and the mental health commissioner stating the specifics and the reasons for the inconsistency and the person can be given the treatment regardless of their objection in their Advanced Statement.

A nominated person (someone whom has been asked to help the person to ensure their best interests are respected) can be revoked by the mental health tribunal if they think the nominated person is inappropriate as a nominated person. This could occur if the nominated person objects to proposed treatments such as ECT which can cause brain damage, memory loss and even death.

Recommendation: An advanced statement should have the finality of a last will and testament and be completely irrevocable. A nominated person must not be revoked due to disagreement with methods of treatment on offer by a psychiatrist or for ensuring the right to refuse psychiatric treatment if expressed in an advanced statement.

Children and Adults on Community Treatment Orders

The exposure draft indicates that a person can be placed on a community treatment order issued by a psychiatrist following an assessment order. 24 This means that a child or adult on a community treatment order (CTO) must comply with the orders given by the psychiatrist who issues the CTO such as taking dangerous mind altering drugs when they go home.

Recommendation: No child or adolescent should be placed on a CTO. Parents or legal guardian's consent should always be obtained for any proposed psychiatric treatment for their child.

Deaths

302 Victorians being treated by the state's mental health system died in unexpected and unnatural ways in the 2008-09 financial year. That was an increase from 205 deaths in 2007-08 and 229 deaths in 2006-07. The biggest increase in deaths was among those aged above 70, including 33 people in their 80s and 22 in their 70s. The number of male deaths was double that of females. 25 The increase in the number of deaths clearly shows that current treatments are not working.

Alternatives to Psychiatric Treatment

There is no dispute that at times some people who are troubled require special care. What that care is or should be is the point of contention. Locating the real causes of each and every person's problem and resolving that is what needs to occur.

Institutions should be turned into safe havens where people will voluntarily seek help without fear of indefinite incarceration. If admitted, they need a quiet environment, nutrition, good food, rest, exercise and work or activities that they have the choice to do or not that boost morale. Such institutions also should be well fitted with medical diagnostic equipment.

With proper medical - not psychiatric - screening, a majority of people brought to institutions could avoid the life of mind-altering drugs and destitution that psychiatry delivers.

Extensive medical evidence proves that underlying and undiagnosed physical illnesses can manifest as "psychiatric" symptoms, and therefore should be addressed with the correct medical treatment. Studies show that once the physical condition is handled, the mental symptoms disappear. Thus, by being properly treated medically, people can lead healthier, happier lives.

In order to ensure basic human rights, the following should be implemented with regards to involuntary commitment:

  1. The right to a full physical examination by a qualified medical practitioner who can determine whether an underlying and untreated physical condition is causing the mental state or emotional symptoms, and that no involuntary commitment procedure can occur without this. A GP is a specialist in medical conditions and a psychiatrist is not and should not perform this examination.
  2. The right to defend oneself against involuntary incarceration in a court of law where full laws of evidence and the right to legal representation apply, as is done in other states and countries.
  3. The full right to refuse psychiatric drugs or electroconvulsive therapy and the right to have all consent and issuing of rights procedures videotaped for the medical records if one wishes it.

What you can do:

  • Write to the Victorian Mental Health Minister and your local Member of Parliament
  • Tell others so they too can take action and write to their MPs.
  1. Part 5, Section 63 page 60, Mental Health Bill Exposure Draft 2010 "Compulsory Patients" and Page 7 - Definition of a Mental Health Practitioner.
  2. Section 68 p65, Mental Health Bill Exposure Draft 2010 "Treatment during an Assessment Order" and page 7 Definition of a Mental Health Practitioner.
  3. Section 64 pp60-61 Mental Health Bill Exposure Draft 2010 "Criteria for an assessment order"
  4. Freedom of Information Request documents received by Citizens Committee on Human Rights National Australia Office from the Victorian Department of Human Services 18th June 2009
  5. Part 10, Section 167, "Patient Communication rights" p 196
  6. Section 24 p17 Victorian Charter of Human Rights and Responsibilities Act 2006. Also relevant is Section 25 of same Act pp18-19
  7. Part 7, Section 125 page 150, Mental Health Bill Exposure Draft 2010, "Treatment for mental illness if patient does not consent or is incapable of giving consent, p 150
  8. Section 87, Mental Health Bill Exposure Draft "Application to the mental health tribunal to revoke order" pp95-96.
  9. Part 5, Section 87, Mental Health Bill Exposure Draft 2010 "Application to the Mental Health Tribunal to revoke Order" p 95.
  10. SA Mental Health Act 1993, Division 2- Appeals, 27-Representation upon appeals to Board.
  11. Section 143, Mental Health Bill Exposure Draft 2010 "Person aged 13 years or more but less than 18 years of age" pp172-176.
  12. Section 145, Mental Health Bill Exposure Draft 2010 "Electroconvulsive therapy as emergency treatment" pp176-177.
  13. "Revealed: Electro-therapy used on troubled teens- shock tactics", Herald Sun Padriac Murphy November 28 2009 p 1.
  14. "Act could ban shock therapy on children" The West Australian, Cathy O'Leary Sunday November 28 2009, p3.
  15. Section 141,Mental Health Bill Exposure Draft 2010 "Seclusion" pp166-168
  16. Chief Psychiatrist Annual Report 2006, Figure 1 & Figure 2
  17. Chief Psychiatrist Annual Report 2006, Figure 3
  18. Review of the Mental Health Act 1986, Consultation Paper December 2008, p. 42.
  19. Section 146 (4) and (5) Mental Health Bill Exposure Draft 2010 "Offences in relation to the performance of psychosurgery" p 176.
  20. Section 146 (1) and (2), Mental Health Bill Exposure Draft 2010 Offences in relation to the performance of psychosurgery" p 177.
  21. (Psychosurgery)... "Has always been an emotive treatment option and one that has attracted wide political and social concern. The abandonment of the old term 'psycho-surgery' can in part be seen as an attempt at re-branding in order to move away from an uncomfortable past" - Report from the Neurosurgery Working Group of the Royal College of Psychiatrists, Council Report CR89, June 2000
  22. Part 7, Section 12, Mental Health Bill Exposure Draft 2010, "Treatment for mental illness if patient does not consent or is capable of giving consent, p 150.
  23. Part 10, Division 1, Sections 150-155, "Advance Statements" Mental Health Bill Exposure Draft 2010, pp182-186.
  24. Sections 71 & 74 Mental Health Bill Exposure Draft 2010 "Criteria for making a Community Treatment Order" S71 pp67-68 "Making a Community Treatment Order" S74 pp70-72
  25. The Sunday Herald Sun "Mental Health Crisis" Brigid O'Connell., October 24th, 2010. Page 33.