On the 15th of February, Justice Action was invited to co-present with Legal Aid NSW at the sixth hearing of the Parliamentary Committee’s Inquiry into the appropriate delivery of outpatient and community mental health care. Despite it being a pivotal opportunity to focus on desperately needed reform on coercive practices, Justice Action feels there was a lack of attention to the crucial issues we raised. It appeared that the Committee was receiving information from us that they had not previously heard.
The vulnerable people, central to the Inquiry, are most concerned about coercive treatment according to research. But responding to that would require respect for their preferences. Instead the contemptuous culture of Health as exposed in the Miriam Merten case is seemingly unassailable, with everyone comfortably in place.
Justice Action had three primary objectives in the Inquiry aimed at enhancing the outcomes for individuals with psychosocial challenges.
The first was the withdrawal of the Chief Psychiatrist’s Comminique 2014, to prohibit forced medication of individuals to induce a submissive state. The second was to explore alternatives to a Community Treatment Order (CTO) such as peer mentoring. The final objective was to ensure that Legal Aid enforced fair procedural requirements regarding CTO hearings. We felt that these issues were not fully understood as only Justice Action raised these perspectives, even though they fall under its Terms of Reference.
The promising developments seen after the Victorian Royal Commission in the 2022 Mental Health and Wellbeing Act, including the establishment of a new Health Commission for investigation, mental healthcare monitoring, and the prioritisation of individuals with lived experience in leadership, sparked great expectations. JA implored the Chief Psychiatrist and Legal Aid NSW to respect their legal obligations to consumers, yet the Committee asked no questions about the key issues addressed and there was no defence even offered from Legal Aid.
Forced Medication:
On November 30th of 2023, Justice Action contacted the Committee via email to highlight concerns regarding the Chief Psychiatrist’s Communique 2014, due to its misleading definitions of legal terms such as risk of ‘serious harm’. The common law has established that risk of ‘serious harm’ includes risk of death, rape, and causing psychological damage beyond emotional harm to the extent of causing psychosis. The Communique’s presentation of this risk is vastly different from the common law, in that it substantially broadens and doesn’t quantify the degree of harms that are considered ‘serious’, including even reputational and financial risk.
Legal Aid’s weak arguments regarding potential amendments to, and the shortcomings of CTOs were indicative of an ambiguous stance, or even complicity, with their perpetuation as a form of “least restrictive care”.
“While the provision of care in the community under a CTO is preferable to involuntary care in an inpatient setting, there is a need for closer attention to be paid to the extensive use of CTOs in NSW.”, Legal Aid Inquiry submission, p.8
This use of “deinstitutionalisation” as a rationale for justifying the imposition of CTOs, without a discussion of the effects of forced medication, is shocking, particularly from an organisation serving as the front line in supporting such vulnerable people at legal risk. Whilst Legal Aid acknowledged concerns regarding the lack of data justifying CTOs use, they failed to address both improper documentation procedures with clients, and alternatives for achieving the “least restrictive form of care”.
Justice Action told the Inquiry:
“If we look at the—causing emotional harm, causing financial difficulties and a whole range of things like that could be included as a guide to the clinicians to apply for a community treatment order. That’s contrary to the law…. It is a risk to life, a risk of being raped or a risk of causing psychological harm to the point of causing psychosis. Yet the clinician’s direction from the Chief Psychiatrist’s direction is actually—it misdirects it. It gives the encouragement to clinicians to impose or ask for a community treatment order.”, Transcript, p.32
Notably, the evidence later in the day from the Chief Psychiatrist Dr Murray Wright, Executive Director Dr Brendan Flynn from the Mental Health Branch, NSW Ministry of Health, and Deputy Secretary Deb Willcox all failed to mention, or address, or be questioned about the Communique.
During the hearing Justice Action was asked for evidence that prisoners were to be forcibly medicated to reduce recidivism. A response report was given to the committee (Medicating for Recidivism).
Alternatives to Forced Medication:
The Committee also failed to ask Justice Action questions regarding alternatives to CTO’s and the potential impacts of a peer workforce to provide support services that are not being provided, via peer mentoring and as peer navigators.
“What we propose is that, instead of the forced medication, which follows the community treatment order, what we would expect from Legal Aid is that they offer things like, for example, peer mentoring, which is actually working with the person and not having a coercive interaction with them.”, Justice Action hearing transcript, p.32
Justice Action affirmed the detrimental repercussions of CTO’s as the basis of forced medication, and provided studies demonstrating that over the longer period, individuals who are not medicated are six times more likely to maintain their functionality.
When Justice Action raised peer-mentoring as a non coercive approach to dealing with a CTO application, there was no response from Legal Aid and no further questions from the Committee. An updated version of the Peer Mentoring in Mental Health paper has been sent to the Inquiry after feedback from experts in the Mental Health industry.
Tribunal Hearing Procedures:
Justice Action’s third objective was to ensure the enforcement of fair procedures to defend against a CTO application. Such procedures ensure that people have time to read the Report prepared by the Health Dept for the CTO application, can get advice, prepare evidence or create an alternative plan in response. That empowers the person to engage for their future. Instead Legal Aid gets the Report the day before the hearing, and doesn’t show it to people at all, reading only selected passages.
“The person who is affected by the order never sees the document,” Justice Action said, “After all, that is the document that affects their future.”, Justice Action hearing transcript, p.30-31.
Despite this, neither Legal Aid nor the Committee members addressed the serious accusations of the unfair procedural approaches.
After taking on a Supreme Court challenge in 2014 against the Mental Health Review Tribunal, and the resulting Lindsay J. judgement, Justice Action negotiated with the Tribunal the Mental Health Consumer Information Sheet. Apart from other matters this ensured any individual affected by an application for a CTO would be granted access to their relevant documents two weeks before Tribunal proceedings. This is intended to bring fairness into mental health proceedings – but it never happens because Legal Aid doesn’t argue for it and the Tribunal turns a blind eye.
Crisis Intervention:
In their opening statement, Legal Aid noted the need for the Police, Ambulance and Clinicians Early Response (PACER) model to operate in all police area commands in New South Wales. However, drawing from our Crisis Intervention paper, Justice Action alerted the Committee to criticisms from Mental Health Minister Rose Jackson and the NSW Police Association regarding the PACER model, labelling it as a sledgehammer approach to problem solving. With any model that involves police interactions, situations have the potential to escalate rapidly.
Lillie Mellin, a mental health spokesperson for Justice Action, conveyed to the Committee that adhering to the traditional approaches would be detrimental to both consumers and their trust in the mental health system.
“Police should not be part of a mental health response because of a variety of factors such as police intervention being shown to make people feel criminalised, stigmatised and intimidated,” Justice Action said, citing recent research from the Victorian Mental Illness Awareness Council, p.32
Justice Action took a question on notice regarding the implementation of CAHOOTS and similar programs in other locations in the United States. Several other cities have implemented programs similar to, or based on, CAHOOTS. A report was prepared and given to the Committee (Response to NSW Mental Health Inquiry: CAHOOTS Model).
Follow Up:
Justice Action is engaged in further discussions with Legal Aid, the Chief Psychiatrist and the Tribunal, to challenge their complicity in resisting reforms.
The NSW Government has fallen short in providing the support that makes contemporary mental health possible, resulting in a regime of over-medicalisation and overreliance on acute responses to avoidable crises. We need to ensure a new infrastructure for peer-led and controlled services.
We will maintain close vigilance with the Mental Health Inquiry and ensure real reforms are the result – not just more money for others whilst those who are supposedly “centre” are exploited and abused.
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