(Contribution to Debate, 7 February 2018, Legislative Assembly NSW Parliament)

I rise to speak on the Health Legislation Amendment Bill. My contribution will focus on the amendments to the Mental Health Act that allow the Mental Health Review Tribunal to hear reviews of the treatment regime of involuntary patients or authorise the use of electro convulsive treatment, in the absence of the person involved, in certain circumstances, if they refuse or are too unwell to attend.

While the Mental Health Review Tribunal in some circumstances can already hear reviews, in practice it makes every attempt to include the person involved and will only proceed with the hearing if the person refuses. I understand the tribunal currently tries to contact each consumer individually by telephone.

The bill would give additional leeway for the tribunal to hold hearings without the person involved being present. A hearing would be able to take place if a representative has been notified or in the case of ECT, reasonable steps have been taken to notify the person’s carer.

BEING, which is the peak body representing consumers of mental health treatment, is concerned that the bill allows an authorised medical officer to apply for a hearing to occur without the person involved being present if they think the person is too unwell to attend. While BEING recognises that most health care providers have the best interests of consumers in mind, the organisation has seen instances of abuse, particularly with restraint and seclusion practices.

BEING is also aware of situations where health care providers have told the Mental Health Review Tribunal that a person does not want to attend a hearing about their treatment but when the tribunal called them on the phone, they said they would be happy to attend. Such examples show the importance of requiring the tribunal to make every effort to contact a patient directly.

It is important that the tribunal makes independent decisions rather than relies on reports from medical teams – this is why we have a tribunal. If patients do not attend, the tribunal will likely have to make decision based predominantly on what treating practitioners say and this may not be the best approach.

It should only be in very rare cases that a patient should be deemed too unwell to attend. I understand that in the past the tribunal has insisted that patients attend, including patients with catatonia, so that it can make an independent decision on the patient’s ability to give consent and their best course of treatment.

There are concerns that more weight is being given to what a carer thinks is best for a person, when they do not necessarily represent the same views and opinions. In some cases, a carer’s views about what a patient needs for their treatment may be very different to what the patient thinks.

I am concerned that the bill represents a shift away from empowering mental health consumers towards a top down model where the medical practitioner is considered to know the best treatment for a person. This appears to be an unnecessary further restriction on consumers’ human rights and does not reflect the direction mental health treatment should be following.

The recently released “Review of seclusion, restraint and observation of consumers with a mental illness in NSW Health facilities” report by the state’s Chief Psychiatrist and a panel of five mental health experts demonstrated the trauma consumers can experience from mental health treatment, particularly when they are not involved in decisions.

BEING reports that many people who come before the Mental Health Review Tribunal already feel their rights have been severely restricted particularly if they are subject to Involuntary Patient Orders for involuntary detention or ECT.

Changes in the bill are contrary to the recovery principles in the National Standard for Mental Health Services and the document: “A national framework for recovery-oriented mental health services: Guide for practitioners and providers”. Both promote the importance of choice and empowerment in people’s own care with their needs at the centre of their treatment, over organisational priorities.

Disempowerment is counterproductive to an individual’s personal recovery. BEING stresses that if we remove people from the decisions about their care and devalue their opinions, they are more likely to experience long term trauma from their experience with the mental health care system. Patients want to make decisions about their own care and in most cases will make the best decision for their recovery.

I acknowledge that there are situations when decisions about mental health treatment must take place in the absence of a patient, particularly if that patient is very unwell…

And I know that mental health law is complex with the ideal treatment situation not always possible…

But the focus of the act must swing towards supported decision making over exclusion.

The concerns of consumers past and present that this bill will have negative impacts on patients’ recovery are valid and must be considered.

I support a model where every possible attempt is made to ensure all consumers are given a genuine opportunity to attend Mental Health Review Tribunal hearings about their treatment.