By Reg Murray*
The nation’s latest mental health report makes 65 recommendations: Victorian Premier Daniel Andrews has promised to implement all of them.
If he fulfils his promise to complete such a massive and expensive task it will be a wonderful outcome.
The Royal Commission into Victoria’s Mental Health System handed down its report in February 2021. The report runs to five volumes and 3134 pages. Clearly it is impossible to give a comprehensive review of the entire report here.
Recommendation Number 42 is for a new Mental Health and Wellbeing Act. As this is an area of major interest to myself and to Civil Liberties Australia, I will concentrate on it.
In 1995 I was twice detained as an involuntary inmate in the then mental health facility, Larundel. On the second occasion my wife took the Victorian Health Department to the Supreme Court and sought a writ for my release. She lost the case but in the process proved that under the then Victorian Mental Health Act involuntary inmates had absolutely no civil rights whatsoever.
A person who was deemed “to appear to be mentally unwell” could be arrested by the police, forcibly taken from their home and transported to a mental health institution. If on arrival the person was deemed to be “mentally unwell” they could be detained and forcibly treated and they, their next of kin, legal or medical representative could do absolutely nothing about it.
Involuntary inmates were supposed to give their informed consent to treatment but the catch 22 was that if they were deemed “unable to consent” then the authorities could consent on their behalf. In practice there was not the slightest pretence of informing or seeking consent.
In 2014 the Napthine government commissioned a Bill for a new Mental Health Act and called for submissions. However Mary Wooldridge, the Minister of Health, decreed that the terms and conditions surrounding involuntary inmates were not negotiable. As a result the 2014 Mental Health Act was little changed in this respect except for a few cosmetics, for example the name was changed to “compulsory” patients.
The 2014 Victorian Mental Health Act contains a lot of feel good material, for example saying that mental illness cannot be used as an excuse to persecute religion, but the truth is that it exists solely as a framework for the clauses surrounding the compulsory treatment of people, and is therefore a manifestation of an anachronistic 19th century attitude to mental illness
The Royal Commission devoted Section 26, pages 12 to 49 of Volume 4 of the report to the legal framework around mental health services in Victoria. The workings of the present legal structure is discussed in detail. Their findings were a little less harsh than mine.
They recognised that Mary Wooldridge had good intentions in framing the 2014 Bill saying:
“People with a mental illness and their families should be able to actively participate in decisions related to their care and have a range of choices about the types of support they need to achieve optimal wellbeing … working with individuals and their families to meet their own recovery goals is central to the government’s approach.”
However the RC found:
People living with mental illness or psychological distress and advocates told the RC that the narrow focus of the Mental Health Act on compulsory treatment can contribute to the dominance of a biomedical model of care. This model preferences the views of mental health practitioners over those of consumers, focuses on ‘deficits’ that need to be fixed or managed by medication, and is moulded around a flawed expectation that the system is responsible for managing short‑term risk rather than emphasising recovery.
Ms Erandathie Jayakody, a witness, told the Commission that:
‘We need to question and challenge the values that underpin the existing laws and the mental health system. We need a paradigm shift where the law and mental health services are driven on the presumption that people with mental health challenges are capable of managing their own mental health…a presumption of recovery.’
Page 78 of the executive summary says:
“repeal the Mental Health Act 2014 (Vic) and enact a new Mental Health and Wellbeing Act, preferably by the end of 2021 and no later than mid-2022.”
The new Act will, of necessity, contain a legal framework surrounding mental illness but it will be very interesting to see how the Andrews Government frames the section relating to “compulsory patients”. Andrews has already overseen humane legislation, for example the Death with Dignity Act, and the prohibition of gay conversion therapy, so I have high hopes.
In the 1990s mental illness was sometimes treated as a crime for which one could be arrested, tried, convicted and sentenced. Victoria will lead Australia if it truly becomes just an illness, like any other illness which can be lived with or even cured.
* Author Reg Murray has had first-hand experience with the worst aspects of the current/old mental health scheme and laws in Victoria. He is a member of Civil Liberties Australia.