Compulsory treatment ordered for shorter periods when lawyers involved in hearings

Compulsory treatment ordered for shorter periods when lawyers involved in hearings

Monday, 10 October 2016

An audit of 759 hearings at Victoria’s Mental Health Tribunal – which makes compulsory treatment orders – has revealed that patients with legal representation were given lengthier hearings and shorter periods of compulsory treatment than those who were unrepresented.

The audit also revealed that lawyers represented patients in less than a quarter of the 128 hearings involving applications for Electroconvulsive treatment (ECT). However 41 per cent of those hearings resulted in patients avoiding the procedure, compared with five per cent when lawyers were not involved.

The audit was conducted by Dr Michael Gardner who is now working with Eastern Health to embed the University of Wollongong’s Collaborative Recovery Model across its mental health services and help develop training for around 800 clinicians.

A consultant psychiatrist, Dr Gardner also has liaison roles with the Mental Health Tribunal and Victoria Legal Aid’s Independent Mental Health Advocacy service.

Dr Michael Gardner
Dr Michael Gardner

What the study found

The audit involved gathering information about hearings at the Tribunal over an 18 month period, with much of Dr Gardner’s findings based on the 12 months to December last year.

When patients attended hearings, either in person or by video conference, they lasted on average 49 minutes, compared to an average of 29 minutes when they did not, Dr Gardner said.

With legal representation, hearings lasted on average around an hour. Without a lawyer, that fell to an average of 38 minutes.

In relation to community treatment orders, those who didn’t have a lawyer were required to stay in treatment for almost three months longer on average than those who did.

‘I was surprised that the difference was so marked,’ Dr Gardner said. ‘If the system was adequately resourced to allow greater access to lawyers and support the increased time demands on clinical staff and the Tribunal itself, then the duration of treatment orders would probably more closely reflect my data, with community treatment orders being shorter and inpatient orders probably around the same.’

Asked what followed in the 10 legally represented cases where ECT was refused by the Tribunal, Dr Gardner said one treatment order was revoked and the other nine remained on inpatient treatment orders relying on other types of treatment. In a small number of cases mental health had subsequently deteriorated to the point that a code black (police responding to a serious threat of violence or property damage) was initiated. In those cases ECT was subsequently approved by the Tribunal at urgent application hearings.

How the study will be used

Although intended to be used by Eastern Health in evaluating a project relating to implementation of the Mental Health Act across its service, the findings will also inform Eastern Health’s Recovery Framework Implementation Project, Dr Gardner said. This work will guide how service delivery aligns with the National framework for recovery-oriented mental health services.

The centrepiece of this strategy is implementation of the Collaborative Recovery Model, which promotes greater involvement of people using mental health services in their treatment and recovery and recognition of legal and human rights in service practices.

‘It focuses on a personal definition of recovery rather than on clinical outcomes,’ Dr Gardner said. ‘So for example, someone might say what they want to do is get a job. They might not agree that they are unwell, but in using a coaching framework you might agree that being in hospital all the time affects their ability to get a job and then you can talk about the best way of overcoming that impasse.’

Developing ‘friendlier’ reports for the tribunal

Dr Gardner has already worked with Victoria Legal Aid’s Mental Health and Disability Advocacy Program Training and Practice Coordinator Robyn Mills and the Tribunal to develop examples of well written reports to avoid ‘obfuscative, technical’ language at hearings.

‘You might have been taught that in a medical exam you describe someone as non-compliant or having a persecutorial delusion but when two members of the Tribunal are not doctors and the patient is also involved, you want to make the process as collaborative and transparent as you can, so you could say that person has a fixed belief instead.’

Shift toward greater collaboration

Dr Gardner believes there has been a positive shift in thinking as services move to implement a new Mental Health Act that encourages people to make supported decisions about their treatment and recovery – and the National framework for recovery-oriented mental health services.

Looking at other mental health systems, such as the collaborative model in the UK, has also influenced his approach, he said.

‘It’s changed the way I’ve written my own notes, so I write assuming the patient might read them and try to make them accessible because it’s important in engaging someone in that process.’

Dr Gardner also advises patients that they can get legal advice or have an advocate.

‘Where there’s the ability to consult with your representative, it can help people feel empowered in that relationship – it would be an exceptional relationship with a doctor where a patient feels that way on a compulsory treatment order.

‘Under the old Act it did feel like the Board was just confirming orders and having this (Act) does make people think more about what they’re doing and encourages people to engage in collaborative decisions.’

Legal representation before the Mental Health Tribunal has increased significantly in recent years because of Victoria Legal Aid’s expanded mental health and disability law program, but still sits at just 18 per cent compared to 77 per cent in NSW.

More information

Find out more about the justice gap in mental health services for Victorians.

Learn more about how we have expanded our mental health services over the past 12 months to assist clients with their mental health issues.

How our Independent Mental Health Advocacy service has helped clients.

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