The Human Rights of Mentally Ill People:the HREOC inquiry and after
| Mental Health, Criminal Justice and Corrections
conference Marrickville 19 October 2001 Dr Sev Ozdowski OAM Human Rights Commissioner and Acting Disability Discrimination Commissioner |
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Introduction
Let me commence by acknowledging the Eora people, the traditional custodians of this place where we meet today.
I congratulate the Probation and Parole Officers' Association for their initiative in organizing this conference on Mental Health, Criminal Justice and Corrections.
I note that other speakers on the program are addressing a wide range of issues:
- discussing legal issues with the Mental Health Act;
- presenting case studies of people with mental illness in contact with the criminal justice system;
- providing a medical perspective on adequacy of mental health services;
- addressing the adequacy of accommodation services; and
- giving perspectives from the prison system.
I have been asked to speak briefly on what are the human rights issues in this area, and what is the impact in human terms of those issues and the costs of punishing people for being mentally ill.
Prevalence of mental illness
Allow me first to remind you of the human scale of the issues we are talking about.
In 1998 the Australian Bureau of Statistics estimated 2,383,000 adults in Australia had a mental disorder - more than one in six.
This included 1,300,000 people with anxiety disorders; 778,000 with depression or other affective disorders; and 1,041,000 with substance use disorders. (Adding these numbers gives more than the total number of individuals affected because some people had more than one mental disorder.)
The rate of mental disorders was highest in the 18 to 24 year old age group with a staggering rate of 27%.
The ABS did not have as clear a set of figures for mental health problems in children and adolescents as for adults. But it did indicate 20% of adolescents had significant mental health problems. As would be well known to most of you, it is people in the adolescent and young adult age groups, particularly males, who are also most likely to be in contact with the criminal justice system.
HREOC mental illness inquiry
No doubt a major reason for inviting me as Human Rights Commissioner to speak on this subject is the substantial work done by HREOC under my predecessor Brian Burdekin.
His report on the human rights of mentally ill people was written almost a decade ago now. This report was based:
- on a national inquiry carried out over several years including hearings conducted around Australia,
- on hundreds of submissions and
- on extensive research.
The inquiry found that people affected by mental illness suffered from widespread systemic discrimination and were consistently denied the rights and services to which they are entitled. It found that although the movement towards community care and mainstreaming of mental health services had reduced the stigma associated with psychiatric care, in general the money saved by deinstitutionalization had not been redirected into mental health and related services in the community.
Health services and other services which would enable people with a mental illness to live effectively in the community were found to be seriously under funded or in some areas just not available at all.
Forensic prisoners
There is a whole chapter in the of HREOC's mental illness report on people with mental illness in the prison system. Many of you would be very familiar with this material and the issues it presents. I will not go through the Commission's findings in this area in detail but let me remind you of the main findings:
- Mentally ill people detained by the criminal justice system were found to be frequently denied treatment.
- In some cases, the response of the system to mental illness was not treatment but brutality or an increase in harshness or length of detention.
The inquiry report gave the example of an Aboriginal man from central Australia who has schizophrenia. Sentenced to six months detention under the Mental Health Act, he had served seven years at the time that the inquiry visited him and moreover was detained 1500 kilometres away from his family, his community, his language, his culture and his land for the bulk of that time.
Another example was a young woman with a history of psychotic episodes, and I quote from the report:
"When she expressed her delusional beliefs to prison officers, she was told not to tell lies and was transferred to a "dry" cell because of her disruptive behaviour . when she went to the toilet and realized the toilet could not be flushed, there was no toilet paper and she could not wash her hands, she became increasingly psychotic and her agitation increased. She began screaming and was told that the longer her noise continued the longer she would remain in this cell".
Other main findings include establishment that
- Procedures for detecting and treating mental illness in the criminal justice system were found to be inadequate in each and every Australian jurisdiction.
- Arrangements for follow up of prisoners with a mental illness after release from jail were also found to be seriously inadequate.
Human rights in law and practice
The inquiry made detailed recommendations about reforms to mental health legislation needed to comply with international human rights standards. But particularly, here at a conference about criminal justice issues, I want to stress that law reform was very far from being the sole focus of the Commission's inquiry.
Although the human rights commission has a major law reform focus we also have a wider brief than that. I think we have managed to avoid the trap of seeing the law as the answer to everything.
Human rights practitioners often assert the unity and indivisibility of human rights - the need not to neglect economic and social rights in pursuit of civil and political rights and vice versa.
The Commission's inquiry looked at what this means in practice, not as a matter of lofty theories but in the realities of the lives of people with a mental illness.
For example, the inquiry found most people with a psychiatric disability are denied the opportunity to obtain employment which would reflect commensurate with their abilities and interests. Over and above the debilitating effects of psychiatric illness and treatments, barriers included
- a lack of access to vocational and educational training,
- inflexible working arrangements and
- negative employer and community attitudes.
The inquiry emphasised a particular neglect by governments of vocational rehabilitation for people with a psychiatric disability.
Apart from the role of work in self realization and sense of self worth, there is the practical economic importance of employment to consider. How in our society can a person who is excluded from employment secure for themselves an adequate standard of living - at least in the absence of more accommodating and generous income support arrangements?
Then there is the issue of housing. How does a person secure adequate housing, or any housing at all, in the absence of an adequate income? This is in addition to the need of some people with mental illnesses for associated support services to maintain stable accommodation.
The inquiry found that people affected by mental illness face a critical shortage of appropriate and affordable housing. It found that the absence of suitable supported accommodation was the single biggest obstacle to recovery and effective rehabilitation.
Government housing programs were found to exclude many people with mental illness due to inflexible criteria and poor coordination.
There is a connection here with criminal justice issues. If mental illness renders a person homeless, how are they to live without coming into contact with the criminal justice system - whether as a victim because of the lack of a safe space; or as an offender or at least an accused person? An ordinary inconspicuous life in our society depends fundamentally on private space to conduct much of life in. This is true even for people with no mental health problems, in addition to the difficulties in life caused by mental illness itself.
It is not surprising then that the Inquiry found a higher proportion of people with mental illness in the prison population than the general population - even though many studies have found that mentally ill people as a group are no more given to violence than the rest of the population.
This leads us to issues of appropriate treatment once a person with a mental illness falls into the criminal justice and corrections systems. As many here would know it is no easy thing to secure the equal protection of the law in practice - whether in police procedures or judicial processes.
After a person is sentenced, or while they are awaiting trial, how can the system of corrections best avoid having an unjustly severe impact on people who may have had a need of psychiatric treatment and a supportive environment even before entering the system?
These are not just rhetorical questions, they present agendas requiring action. I am glad to see them on the agenda of this conference.
The Commission's inquiry found that answering or even addressing these questions requires law reform in some areas but it also requires much more. The inquiry called for substantially increased resources not only for mental health services in the community but for a range of other services to address the needs of people with mental illness. This included
- accommodation and accommodation support services;
- employment and rehabilitation services, and
- improved income support.
The inquiry also called for improved coordination between different areas of government programs and services.
Implementation of the Burdekin report
I cannot and will not pretend to you that HREOC has had the resources to repeat this inquiry since or to follow up its implementation in detail. It was never going to be possible for the Commission to perform this sort of role on a continuing basis or to maintain a standing national inquiry in this area. It became absolutely impossible when the Commission's budget was cut by 40% in 1996-97.
But I think it can be said confidently that the inquiry did contribute to changing perceptions of mental illness. It did highlight issues affecting people with a mental illness as human rights issues rather than being purely medical issues. Its views and recommendations have been widely adopted by governments at least at the level of principle.
The human rights approach is reflected in the National Mental Health Strategy. The Strategy is a welcome and overdue acknowledgement of the Commonwealth Government role in mental health.
Legislative reform
Legislative reform was an especially important element of the Mental Healththis Strategy. An evaluation of Australian mental health legislation has been conducted for the Australian Health Ministers Advisory Council, by reference to a "rights analysis instrument" based on international standards.
This evaluation shows that there has been significant progress. Every state and territory has amended or is amending its mental health legislation to move away from an emphasis on detention to a model based more properly on human rights.
However, the same evaluation showed that no Australian jurisdiction had achieved full compliance with the United Nations Principles for Protection of Persons with Mental Illness and for the Improvement of Mental Health Care. Yet in 1992 the National Mental Health Strategy set a 1998 target date for full compliance.
A particular issue in the criminal justice area highlighted by HREOC's inquiry was the position of people found unfit to plead because of their mental condition. A person who could not be tried would generally be subject to indeterminate detention "at the governor's pleasure".
The inquiry described this as a clear breach of human rights. It meant that a person with a mental illness might well serve a longer period of imprisonment than if he or she had been convicted, and without any opportunity to have the charge tested.
A number of jurisdictions including NSW have provided for a special procedure, so that even if a person is unfit to plead, a modified trial can be conducted. This allows some testing of the charge to be done even without the accused being fully mentally competent. For example, it can be established if the prosecution is bad in law for some reason or if there is strong independent alibi or exculpatory evidence.
The NSW Law Reform Commission's report on people with intellectual disabilities and the criminal justice system notes a defect of the 1990 NSW reforms in this area, which also affects people with mental illness. A finding of unfitness leads to a custodial order, when someone who was mentally fit to plead may well have benefited from a non-custodial order.
This illustrates that there is a continuing human rights problem in this area. It is not justifiable to assume that unfitness to plead on mental health grounds, added to the fact of a criminal charge, justifies detention in itself. Quite simply, what if the person is in fact innocent?
Obviously it is not possible to say that the criminal law cannot be applied at all to a person with a mental illness. But surely, if human rights mean anything at all, then any solutions in this area need to take the presumption of innocence as something fairly fundamental.
Responses beyond law reform
Although the legislative response to HREOC's report has been incomplete I still think it has been encouraging. The response on other levels while also extensive does not seem to have been equally encouraging.
This is not to deny that there has been a very significant increase in resources in response to the report.
First and foremost this increase is seen at the federal level where the Commonwealth, under the National Mental Health Strategy, allocated funds for the first time specifically for mental health services. The states and territories also increased their funding in response to HREOC's report. But there still appears a great distance still to travel before we can be satisfied that we are responding adequately to the human rights of people who have or have had mental illness.
Non-government organisations have been expressing particular concern recently regarding income support arrangements - on the basis that people who fail to attend job interviews or meet other requirements because of mental health issues are being "breached".
This is an ugly expression for an ugly event. It means being cut off from income support for weeks or left to survive on drastically reduced benefits
More broadly, such small scale monitoring and follow up which HREOC itself has been able to do indicates continuing concerns.
These relate both to the level of resources and to implementation of our recommendations about co-ordination of services and program design and eligibility.
Community treatment orders: A sample issue
The most substantial recent follow up to the mental illness inquiry which HREOC has been able to undertake was to conduct consultations in 1998 in response to concerns regarding community treatment orders.
These consultations only dealt with a small sample of the issues covered by the national inquiry report. But they indicate that implementation of the report remains far from complete.
Consultations suggested that the right of people with mental illness to live, work and participate in the community to the full extent of their capabilities is still being compromised by a lack of available community based services and care options.
Particular criticism was made of community treatment orders. We were told that
- community treatment orders often amount to nothing more than a fortnightly injection at a local medical clinic or a community mental health service
- mental health consumers are often subject to a community treatment order without receiving adequate case management, review or follow-up
- mental health consumers subject to community treatment orders do not have access to, or support in accessing, an appropriate range of services that meet their needs for leisure, recreation, education, training, work, accommodation and employment
- community based services are often non-existent or fragmented.
Conclusion
This more recent consultation was clearly not as rigorous or large scale an inquiry as HREOC conducted in its national inquiry on human rights and mental illness. But it does provide disturbing evidence about how little has changed in practice.
The Commission's National Inquiry recommended that "mental health services should not attempt to care for people in the community until it can be demonstrated that appropriate accommodation and sufficient numbers of trained community mental health staff are available to provide adequate care and support".
It appears clear that this recommendation and all the associated recommendations about the support needed by people with a mental illness still need attention.
Otherwise, and despite the advances in legislation and in policy at the level of rhetoric, the reality for people with a mental illness and carers will continue to be denial of human rights in practice.
Let me close by again commending the organisers of this conference for seeking to enhance the level of debate and accountability on human rights outcomes for people with mental illness. I wish you success in your further discussions.