This document provides advice on how to successfully tackle forced medication – Community Treatment Orders (CTO’s) so that you can retake personal control of your life. This practice should be stopped so individuals can personally shape the plan they need to recover balance in their lives.
The material below is based on the experience of Justice Action in defending a number of individuals who have been held under CTO’s for many years. JA has run challenges in the NSW Supreme Court and in the process, established the responsibilities of mental health authorities to the individual. We have examined the legal entitlement to forcibly medicate and provide practical guidance to empower you to deal with your CTO.
To help those on CTOs, we’ve created a Step-by-Step guide on how to begin the process of challenging this restrictive practice and take charge of your own life. The same principles apply in each state as the laws are very similar.
Part 1: Taking back personal control of your life
1.1: Accessing your health department file
You have an entitlement to access your health department file. This is your right. It is stated in law and under Section H, Chapter 3 of the Mental Health Rights Manual (MHRM).
But be aware, there is often resistance to your right to have a copy of their comments about you in the personal medical records they keep. However, it is an essential first stage for getting both respect and information to defend yourself. When explaining your request, say that you would like to properly see what the Health Department’s concerns are about you. You are also entitled to get advice about those concerns from friends. Make sure you see the whole file as you are entitled, not just a few pages. Costs can be waived for copying or reduced if you are on a pension.
In order to access your medical files, you need to make a formal request to your health service provider. Only you or a person authorised by you, can make a request for your medical files. If you require more assistance with this request, contact your local legal centre or a friend for support. For more information on the process of your request, click on the Australian Government’s information page.
Part 2: Mental illness under the law
The phrase ‘mental illness’ is complex and may conflict with your perception of yourself. However, this term is strictly regulated by the Mental Health Acts. It needs to be proven that you are mentally ill, as well as a risk of serious harm either to yourself or to others before you are defined as ‘mentally ill’. When fighting a forced treatment order or a decision that the health authorities have taken against you, it is important to understand the legal concept of ‘mental illness’ and whether or not it applies to you.
The Limits of the Power to Forcibly Medicate carefully examines the laws in NSW that enables forced medication of individuals defined as mentally ill. Justice Action has challenged the Chief Psychiatrists Communique 2014 however it hasn’t yet been withdrawn. The Chief Psychiatrist gave direction to clinicians to apply a broad concept of serious harm, providing a vague definition for an important concept in the case against forcibly medicated individuals. The Consumer Information Sheet, agreed with the Mental Health Review Tribunal as accurate after a court challenge, lays out important principles and can be quoted.
Part 3: Community Treatment Orders (CTO’s)
Community Treatment Orders (CTOs) are used to authorise forced medication. They are counterproductive, and demeaning, reducing a person’s autonomy, and create resentment towards health authorities lessening trust when support is really needed. To help those on CTOs, we’ve created a Step-by-Step guide on how to begin the process of challenging this restrictive practice so you take charge of your own life.
3.1: The FAILURE of treatment orders
If you would like more information about the criticisms against forced medication, if forced medication actually works, how far health departments can go, how CTO’s are used in NSW prisons, or the state’s assault on the mentally ill, click on the relevant link.
Part 4: How to Act
4.1: Getting social and professional support
In order to best challenge a forced medication order, it is important to establish an effective social and professional support network.
Firstly, establish what your health department says are the risks of serious harm in your situation. If you believe that these claims of serious harm are untrue, you must mount an argument to challenge these claims at a hearing. When creating your argument, consider if you have alternative ways of dealing with those problems, and advice from a doctor of YOUR choice. Ideally, consider seeing a psychologist of your choice, referred by your personal doctor as well.
4.2: Look for alternatives to forced medication
4.3: Building your Personal Management Plan (PMP)
A Personal Management Plan (PMP) includes intervention strategies from both a medical and social standpoint to serve as an alternative option to a CTO. You can control the framework of their PMP to decide how to best manage your treatment.
The following document is intended to provide individuals with guidance on how to develop their own PMP: Personal Management Plan Template. The PMP needs to be personalised to the experiences of the individual, so the underlined sections and information in parentheses should be replaced.
Once the PMP is completed and submitted, you should negotiate with the health department at least two weeks before your hearing to withdraw your order and for the department to support your PMP. You can present the PMP and statements from supporters to the Tribunal if necessary. If unsuccessful, you can rebuild for the next hearing and continue to negotiate with the Health Department. They are obliged to consider what you propose, and need to justify to the Tribunal why they think your proposal wouldn’t work.
4.4: Entitled to Legal Support
Under Section E, Chapter 4 of the Mental Health Rights Manual, you are entitled to use legal support. However we have found that the Mental Health Advocacy Service at Legal Aid NSW is unprepared to fight for your rights, and undermines rather than supports consumers. Private lawyers are expensive and seldom win against the Health Dept unless you have independent psychiatric support. You can decide whether or not you want representation, but the Mental Health Tribunal also has the power to permit a non-lawyer to represent a person.
Part 5: Case Studies
If you would like to research cases that may be similar to your own, feel free to click the links below.