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 2020 (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 Balit, 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.

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'.

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 People. 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.

Koori mental health services

• Victorian Aboriginal Health Service has a range of services including a men’s unit offering counselling, anger management, camps and fathering support. VAHS also has an Adult Social Emotional Wellbeing team contactable through their family counselling service.
• St Vincent.’s Hospital Aboriginal Health Unit has five specialist beds for Aboriginal people from across Victoria, which is jointly managed by the Victorian Aboriginal Health Service Family Counselling Service.
• Victorian Aboriginal Community Controlled Health Organisation Inc have Koori mental health liaison officers across most area mental health services, including rural and regional areas, whose aim is to improve access and the cultural appropriateness of services provided to Aboriginal people.
• Social and Emotional Wellbeing and Mental Health Services in Aboriginal Australia is an initiative of the Australian Psychological Society with funding from the Australian Government Department of Health and Ageing. It is designed for those seeking to learn about ways of meeting the social and emotional wellbeing and mental health needs of Aboriginal and Torres Strait Islander people and communities.
• Koori mental health project for young people – an initiative of Royal Children’s Hospital developed in consultation with the Koori Kids Mental Health Network and the Koori Adolescent Mental Health Unit of the Victorian Aboriginal Health Service.
• Dandenong and District Aborigines Co-operative helps Aboriginal people in the Southern suburbs of Melbourne with mental health issues.
• Northern Health Aboriginal Support (Narrun Wilip-giin) is a dedicated support unit which aims to culturally support Aboriginal and Torres Strait Islander patients and carers through the hospital journey.

At the hearing

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)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:

• Treatment criteria: compulsory treatment
• Section 5(a): the person ‘has mental illness’
• Section 5(c): immediate treatment will be provided if the person is subject to a compulsory treatment order.

Read the following information on the Australian Indigenous HealthInfoNet website:

• Effective strategies to strengthen the mental health and wellbeing of Aboriginal and Torres Strait Islander people
• Social and emotional wellbeing workers
• Koori mental health project.

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

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

Read more information about hypoglycaemia and endocrine disease 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 Psychiatrists website.