Victoria Legal Aid

Aboriginal and Torres Strait Islander clients

Information about how to carry out a duty or function under the Act in relation to Aboriginal and Torres Strait Islander clients.

The mental health principles

Anyone carrying out a duty or function under the Act in relation to an Aboriginal and Torres Strait Islander client should ensure that the person’s distinct culture and identity are recognised and responded to (s. 11(1)(h)).

The mental health aand wellbeing of Aboriginal and Torres Strait Islander Australians

The most recent report measuring the wellbeing of Aboriginal and Torres Strait Islander Australians, Overcoming Indigenous Disadvantage: Key Indicators 2020External Link (released December 2020) shows a high prevalence of mental health issues in the Aboriginal community. The report states:

In 2018-19 about one-third (31%) of Aboriginal and Torres Strait Islander adults reported high/very high levels of psychological distress, an increase from 27% in 2004–05.

After adjusting for population age structures, the proportion of Aboriginal and Torres Strait Islander adults experiencing high/very high psychological distress was more than twice the proportion for non-Indigenous adults [8.7].

The report also notes that ‘unique risk factors, which are also intergenerational — including the grief, loss and trauma relating to the removal of children over many generations, separation from culture and identity, and discrimination based on race’ contribute to high levels of psychological distress and mental ill health. In addition, Aboriginal and Torres Strait Islanders face greater exposure to risk factors commonly associated with high levels of psychological distress, including poverty, unemployment and homelessness.

Victoria’s Aboriginal health strategy 2012–2022, Koolin BalitExternal Link , aims to improve Aboriginal health in Victoria. It acknowledges that the Aboriginal definition of health is broad and inclusive and highlights the fact that ‘the creation of a culturally responsive environment in hospitals to ensure they provide high-quality care that Aboriginal people are willing to access … cannot be done without also … working with local Aboriginal communities and other non-health players, such as social and family support services, to ensure all service providers understand the importance and value of being culturally responsive.’

Koolin Balit also states:

The department encourages culturally based social and emotional wellbeing services and interventions, developed and delivered by Aboriginal organisations in partnership with local mental health services with the aim of promoting self-determination, intervening earlier to optimise recovery outcomes and more effectively engaging Aboriginal people in mainstream mental health and social support services.

The strategy outlines principles for work in Aboriginal health, and the features of high-quality health services for Aboriginal people. It also highlights the importance of Aboriginal community-controlled health organisations, including expertise and understanding of the Aboriginal community and family networks.

Social and emotional wellbeing workers at Aboriginal health services can be another source of support for an Aboriginal client.

Admission to hospital

Check how your client came to be admitted. If they live in remote and/or regional Victoria, it may have taken some time to bring them to hospital, possibly in a police divisional van. This would likely have had an adverse impact on their presentation when they were assessed by the psychiatrist for the temporary treatment order.

The treatment criteria

Mental illness – s. 5(a)

Physical and chronic health issues can manifest in ways which may be interpreted incorrectly as the person presenting with mental illness. Symptoms of hypoglycaemia (low blood sugar levels) are similar to symptoms of mental ill health and may account for unusual or out of character behaviour in your client. For example nervousness, sweating, behaving irrationally or trembling like someone affected by alcohol. This may impact on whether your client presents as having mental illness.

The second leading cause of death for Aboriginal Australians is endocrine disease. The endocrine system influences how your heart beats and how your bones and tissues grow. It plays a vital role in whether or not you develop diabetes, thyroid disease, growth disorders, sexual dysfunction, and a host of other hormone-related disorders.

These issues are also important to consider in determining whether treatment will be provided under s. 5(c). That is, side effects of particular medication may have a greater impact on an Aboriginal person who is more likely than most to have trouble with their kidney or liver.

Practice tips

  • Ask your client if they have diabetes. If they don’t, ask if they have had a thorough medical check during this admission and check their clinical file for further details.
  • Your client’s treatment for their mental illness may not interfere with their cultural beliefs. On the other hand, the cultural practices of a community from a particular region may, when relayed by an individual to a mental health professional, cause unwarranted concern. Check to see if the client considers any topics to be ‘off limits’. If a person can’t talk about particular topics, this may be because of cultural sensitivity and is not necessarily a sign of mental illness. You should critically assess whether any of the 'symptoms' alleged fall into this category.

Provision of treatment (s. 5(c)) and less restrictive treatment (s. 5(d))

A person's literacy may have a bearing on whether they can or have received treatment, It may also provide context for past 'non compliance'.

Practice tips

  • Tactfully check with your client whether they may have literacy issues. For example, ask questions such as 'do you find it easy to read those tiny instructions on medication packets?'
  • Check if anyone ever explained to them when to take what medication or what each medication is for
  • Check if anyone has ever explained to them what a Webster pack is
  • Ask if they would be willing to have someone from the co-op attend daily to check their compliance, or drive them to the Aboriginal Health Service to get treatment.

In November 2014, Closing the Gap Clearinghouse released a document entitled Effective strategies to strengthen the mental health and wellbeing of Aboriginal and Torres Strait Islander PeopleExternal Link . It provides an evidence-based discussion of factors that influence the effective development, implementation and outcomes of initiatives to address Aboriginal and Torres Strait Islander mental health and wellbeing issues.

P ractice tip

Source this document and ask the treating team and the tribunal members if they have read it and how they have implemented it. If they haven’t, you can argue that the client would benefit from receiving their treatment through an Aboriginal specific service that understands the best practice in Aboriginal health.

Koori mental health services

Practice tips

  • Ask your client what it means to them to identify as Aboriginal or Torres Strait Islander
  • Ask if they would like to have Aboriginal specific services involved in their treatment and recovery
  • Ask if they would like the Aboriginal Liaison Officer from the hospital to visit them and liaise with the treating team on their behalf
  • Check with your client if they’re comfortable meeting with you alone, if they’d prefer to have someone else there, or if they'd prefer to sit side by side rather than face to face

At the hearing

Practice tips

  • Consider cross-examining the treating team on how they have recognised and responded to your client’s distinct Aboriginal or Torres Strait Islander identity and cultural needs. It may be helpful to refer to relevant clinical guidelines if relevant for your client’s situation.
  • Ask if anyone on the treating team or tribunal has undergone cultural awareness training and/or liaised with the Aboriginal Liaison Officer at the hospital

Application of the Charter of Human Rights

It is clear from its preamble that the Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic) (the charter) intended to reflect the need for specific rights for Aboriginal persons in Victoria:

'This charter is founded on the following principles … human rights have a special importance for the Aboriginal people of Victoria, as descendants of Australia’s first people, with their diverse spiritual, social, cultural and economic relationship with their traditional lands and waters.'

The charter at s. 19 gives general expression to Indigenous cultural rights. In particular it states 'Aboriginal persons hold distinct cultural rights and must not be denied the right, with other members of their community:

  1. to enjoy their identity and culture
  2. to maintain and use their language
  3. to maintain their kinship ties
  4. to maintain their distinctive spiritual, material and economic relationship with the land and waters and other resources with which they have a connection under traditional laws and customs.'

This appears to also reflect Article 25 of the United Nations Draft Declaration on Indigenous Rights.

In addition to s. 19, access to culturally appropriate services and the ability to practice culture while in a locked environment invokes a number of charter provisions:

  • s. 8 – recognition and equality before the law
  • s. 12 – freedom of movement
  • s. 13 – right to privacy and reputation (cultural practices are included in the concept of privacy and personal autonomy).

Rights of other people, including children, are also engaged whenever a child is separated from their parent upon entering a locked environment. When a lack of access to services compromises an Aboriginal person’s ability to provide effective ongoing care for their child, the protection of the child’s best interests is also at risk. Therefore, the charter requires the tribunal to think about the best interests of the child and protection of families (although to an extent this is covered by s. 11(1)(i) and (j)).

It may be argued that s. 8(4) of the charter makes clear that particular measures may be taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination and that this in itself does not constitute discrimination. This provides recognition that to achieve equality, Aboriginal inpatients need to be treated differently in light of the historical disadvantage that makes Aboriginal people susceptible to mental ill health.

See AQH [2017] VMHT 24 (5 April 2017)External Link in which the tribunal made a community treatment order for an Aboriginal person who was in a high-dependency unit. The tribunal considered the charter, cultural and family connections and high rates of indigenous incarceration in making its decision.

More information

See our pages:

Read the following information on the Australian Indigenous HealthInfoNet website:

For an overview of the health and wellbeing of Aboriginal and Torres Strait Islander peoples, see the Australian Institute of Health and WelfareExternal Link website.

Read the report measuring the wellbeing of Aboriginal and Torres Strait Islander Australians Overcoming Indigenous Disadvantage: Key Indicators 2020 (released December 2020) on the Australian Government Productivity CommissionExternal Link website.

Read Victoria’s Aboriginal health strategy 2012–2022 Koolin Balit on the Department of HealthExternal Link website.

Read more information about hypoglycaemiaExternal Link and endocrine diseaseExternal Link on the Health Direct website.

Read Aboriginal and Torres Strait Islander mental health: Principles and guidelines (July 2014) and Aboriginal and Torres Strait Islander mental health workers (August 2016) on the Royal Australian and New Zealand College of PsychiatristsExternal Link website.

Disclaimer: The material in this print-out relates to the law as it applies in the state of Victoria. It is intended as a general guide only. Readers should not act on the basis of any material in this print-out without getting legal advice about their own particular situations. Victoria Legal Aid disclaims any liability howsoever caused to any person in respect of any action taken in reliance on the contents of the publication.

We help Victorians with their legal problems and represent those who need it most. Find legal answers, chat with us online, or call us. You can speak to us in English or ask for an interpreter. You can also find more legal information at www.legalaid.vic.gov.au

Reviewed 02 June 2022

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