The Human Rights of Mentally Ill People:the HREOC inquiry and after

The Human Rights of Mentally
Ill People:the HREOC inquiry and after

Mental Health, Criminal Justice and Corrections conference Marrickville 19 October 2001 Dr Sev Ozdowski OAM Human Rights Commissioner and Acting Disability Discrimination Commissioner

Introduction

Let me commence by acknowledging the Eora people, the traditional custodians
of this place where we meet today.

I congratulate the Probation and Parole Officers' Association for their
initiative in organizing this conference on Mental Health, Criminal Justice
and Corrections.

I note that other speakers on the program are addressing a wide range
of issues:

• discussing legal issues with the Mental Health Act;
• presenting case studies of people with mental illness in contact with
  the criminal justice system;
• providing a medical perspective on adequacy of mental health services;
• addressing the adequacy of accommodation services; and
• giving perspectives from the prison system.

I have been asked to speak briefly on what are the human rights issues
in this area, and what is the impact in human terms of those issues and
the costs of punishing people for being mentally ill.

Prevalence of mental illness

Allow me first to remind you of the human scale of the issues we are
talking about.

In 1998 the Australian Bureau of Statistics estimated 2,383,000 adults
in Australia had a mental disorder - more than one in six.

This included 1,300,000 people with anxiety disorders; 778,000 with depression
or other affective disorders; and 1,041,000 with substance use disorders.
(Adding these numbers gives more than the total number of individuals
affected because some people had more than one mental disorder.)

The rate of mental disorders was highest in the 18 to 24 year old age
group with a staggering rate of 27%.

The ABS did not have as clear a set of figures for mental health problems
in children and adolescents as for adults. But it did indicate 20% of
adolescents had significant mental health problems. As would be well known
to most of you, it is people in the adolescent and young adult age groups,
particularly males, who are also most likely to be in contact with the
criminal justice system.

HREOC mental illness inquiry

No doubt a major reason for inviting me as Human Rights Commissioner
to speak on this subject is the substantial work done by HREOC under my
predecessor Brian Burdekin.

His report on the human rights of mentally ill people was written almost
a decade ago now. This report was based:

• on a national inquiry carried out over several years including hearings
  conducted around Australia,
• on hundreds of submissions and
• on extensive research.

The inquiry found that people affected by mental illness suffered from
widespread systemic discrimination and were consistently denied the rights
and services to which they are entitled. It found that although the movement
towards community care and mainstreaming of mental health services had
reduced the stigma associated with psychiatric care, in general the money
saved by deinstitutionalization had not been redirected into mental health
and related services in the community.

Health services and other services which would enable people with a mental
illness to live effectively in the community were found to be seriously
under funded or in some areas just not available at all.

Forensic prisoners

There is a whole chapter in the of HREOC's mental illness report on people
with mental illness in the prison system. Many of you would be very familiar
with this material and the issues it presents. I will not go through the
Commission's findings in this area in detail but let me remind you of
the main findings:

• Mentally ill people detained by the criminal justice system were found
  to be frequently denied treatment.
• In some cases, the response of the system to mental illness was not
  treatment but brutality or an increase in harshness or length of detention.

The inquiry report gave the example of an Aboriginal man from central
Australia who has schizophrenia. Sentenced to six months detention under
the Mental Health Act, he had served seven years at the time that the
inquiry visited him and moreover was detained 1500 kilometres away from
his family, his community, his language, his culture and his land for
the bulk of that time.

Another example was a young woman with a history of psychotic episodes,
and I quote from the report:

"When she expressed her delusional beliefs to prison officers, she was
told not to tell lies and was transferred to a "dry" cell because of her
disruptive behaviour . when she went to the toilet and realized the toilet
could not be flushed, there was no toilet paper and she could not wash
her hands, she became increasingly psychotic and her agitation increased.
She began screaming and was told that the longer her noise continued the
longer she would remain in this cell".

Other main findings include establishment that

• Procedures for detecting and treating mental illness in the criminal
  justice system were found to be inadequate in each and every Australian
  jurisdiction.
• Arrangements for follow up of prisoners with a mental illness after
  release from jail were also found to be seriously inadequate.

Human rights in law and practice

The inquiry made detailed recommendations about reforms to mental health
legislation needed to comply with international human rights standards.
But particularly, here at a conference about criminal justice issues,
I want to stress that law reform was very far from being the sole focus
of the Commission's inquiry.

Although the human rights commission has a major law reform focus we
also have a wider brief than that. I think we have managed to avoid the
trap of seeing the law as the answer to everything.

Human rights practitioners often assert the unity and indivisibility
of human rights - the need not to neglect economic and social rights in
pursuit of civil and political rights and vice versa.

The Commission's inquiry looked at what this means in practice, not as
a matter of lofty theories but in the realities of the lives of people
with a mental illness.

For example, the inquiry found most people with a psychiatric disability
are denied the opportunity to obtain employment which would reflect commensurate
with their abilities and interests. Over and above the debilitating effects
of psychiatric illness and treatments, barriers included

• a lack of access to vocational and educational training,
• inflexible working arrangements and
• negative employer and community attitudes.

The inquiry emphasised a particular neglect by governments of vocational
rehabilitation for people with a psychiatric disability.

Apart from the role of work in self realization and sense of self worth,
there is the practical economic importance of employment to consider.
How in our society can a person who is excluded from employment secure
for themselves an adequate standard of living - at least in the absence
of more accommodating and generous income support arrangements?

Then there is the issue of housing. How does a person secure adequate
housing, or any housing at all, in the absence of an adequate income?
This is in addition to the need of some people with mental illnesses for
associated support services to maintain stable accommodation.

The inquiry found that people affected by mental illness face a critical
shortage of appropriate and affordable housing. It found that the absence
of suitable supported accommodation was the single biggest obstacle to
recovery and effective rehabilitation.

Government housing programs were found to exclude many people with mental
illness due to inflexible criteria and poor coordination.

There is a connection here with criminal justice issues. If mental illness
renders a person homeless, how are they to live without coming into contact
with the criminal justice system - whether as a victim because of the
lack of a safe space; or as an offender or at least an accused person?
An ordinary inconspicuous life in our society depends fundamentally on
private space to conduct much of life in. This is true even for people
with no mental health problems, in addition to the difficulties in life
caused by mental illness itself.

It is not surprising then that the Inquiry found a higher proportion
of people with mental illness in the prison population than the general
population - even though many studies have found that mentally ill people
as a group are no more given to violence than the rest of the population.

This leads us to issues of appropriate treatment once a person with a
mental illness falls into the criminal justice and corrections systems.
As many here would know it is no easy thing to secure the equal protection
of the law in practice - whether in police procedures or judicial processes.

After a person is sentenced, or while they are awaiting trial, how can
the system of corrections best avoid having an unjustly severe impact
on people who may have had a need of psychiatric treatment and a supportive
environment even before entering the system?

These are not just rhetorical questions, they present agendas requiring
action. I am glad to see them on the agenda of this conference.

The Commission's inquiry found that answering or even addressing these
questions requires law reform in some areas but it also requires much
more. The inquiry called for substantially increased resources not only
for mental health services in the community but for a range of other services
to address the needs of people with mental illness. This included

• accommodation and accommodation support services;
• employment and rehabilitation services, and
• improved income support.

The inquiry also called for improved coordination between different areas
of government programs and services.

Implementation of the Burdekin report

I cannot and will not pretend to you that HREOC has had the resources
to repeat this inquiry since or to follow up its implementation in detail.
It was never going to be possible for the Commission to perform this sort
of role on a continuing basis or to maintain a standing national inquiry
in this area. It became absolutely impossible when the Commission's budget
was cut by 40% in 1996-97.

But I think it can be said confidently that the inquiry did contribute
to changing perceptions of mental illness. It did highlight issues affecting
people with a mental illness as human rights issues rather than being
purely medical issues. Its views and recommendations have been widely
adopted by governments at least at the level of principle.

The human rights approach is reflected in the National Mental Health
Strategy. The Strategy is a welcome and overdue acknowledgement of the
Commonwealth Government role in mental health.

Legislative reform

Legislative reform was an especially important element of the Mental
Healththis Strategy. An evaluation of Australian mental health legislation
has been conducted for the Australian Health Ministers Advisory Council,
by reference to a "rights analysis instrument" based on international
standards.

This evaluation shows that there has been significant progress. Every
state and territory has amended or is amending its mental health legislation
to move away from an emphasis on detention to a model based more properly
on human rights.

However, the same evaluation showed that no Australian jurisdiction had
achieved full compliance with the United Nations Principles for Protection
of Persons with Mental Illness and for the Improvement of Mental Health
Care. Yet in 1992 the National Mental Health Strategy set a 1998 target
date for full compliance.

A particular issue in the criminal justice area highlighted by HREOC's
inquiry was the position of people found unfit to plead because of their
mental condition. A person who could not be tried would generally be subject
to indeterminate detention "at the governor's pleasure".

The inquiry described this as a clear breach of human rights. It meant
that a person with a mental illness might well serve a longer period of
imprisonment than if he or she had been convicted, and without any opportunity
to have the charge tested.

A number of jurisdictions including NSW have provided for a special procedure,
so that even if a person is unfit to plead, a modified trial can be conducted.
This allows some testing of the charge to be done even without the accused
being fully mentally competent. For example, it can be established if
the prosecution is bad in law for some reason or if there is strong independent
alibi or exculpatory evidence.

The NSW Law Reform Commission's report on people with intellectual disabilities
and the criminal justice system notes a defect of the 1990 NSW reforms
in this area, which also affects people with mental illness. A finding
of unfitness leads to a custodial order, when someone who was mentally
fit to plead may well have benefited from a non-custodial order.

This illustrates that there is a continuing human rights problem in this
area. It is not justifiable to assume that unfitness to plead on mental
health grounds, added to the fact of a criminal charge, justifies detention
in itself. Quite simply, what if the person is in fact innocent?

Obviously it is not possible to say that the criminal law cannot be applied
at all to a person with a mental illness. But surely, if human rights
mean anything at all, then any solutions in this area need to take the
presumption of innocence as something fairly fundamental.

Responses beyond law reform

Although the legislative response to HREOC's report has been incomplete
I still think it has been encouraging. The response on other levels while
also extensive does not seem to have been equally encouraging.

This is not to deny that there has been a very significant increase in
resources in response to the report.

First and foremost this increase is seen at the federal level where the
Commonwealth, under the National Mental Health Strategy, allocated funds
for the first time specifically for mental health services. The states
and territories also increased their funding in response to HREOC's report.
But there still appears a great distance still to travel before we can
be satisfied that we are responding adequately to the human rights of
people who have or have had mental illness.

Non-government organisations have been expressing particular concern
recently regarding income support arrangements - on the basis that people
who fail to attend job interviews or meet other requirements because of
mental health issues are being "breached".

This is an ugly expression for an ugly event. It means being cut off
from income support for weeks or left to survive on drastically reduced
benefits

More broadly, such small scale monitoring and follow up which HREOC
itself has been able to do indicates continuing concerns.

These relate both to the level of resources and to implementation of
our recommendations about co-ordination of services and program design
and eligibility.

Community treatment orders: A sample issue

The most substantial recent follow up to the mental illness inquiry which
HREOC has been able to undertake was to conduct consultations in 1998
in response to concerns regarding community treatment orders.

These consultations only dealt with a small sample of the issues covered
by the national inquiry report. But they indicate that implementation
of the report remains far from complete.

Consultations suggested that the right of people with mental illness
to live, work and participate in the community to the full extent of their
capabilities is still being compromised by a lack of available community
based services and care options.

Particular criticism was made of community treatment orders. We were
told that

• community treatment orders often amount to nothing more than a fortnightly
  injection at a local medical clinic or a community mental health service
• mental health consumers are often subject to a community treatment
  order without receiving adequate case management, review or follow-up
• mental health consumers subject to community treatment orders do
  not have access to, or support in accessing, an appropriate range of
  services that meet their needs for leisure, recreation, education, training,
  work, accommodation and employment
• community based services are often non-existent or fragmented.

Conclusion

This more recent consultation was clearly not as rigorous or large scale
an inquiry as HREOC conducted in its national inquiry on human rights
and mental illness. But it does provide disturbing evidence about how
little has changed in practice.

The Commission's National Inquiry recommended that "mental health services
should not attempt to care for people in the community until it can be
demonstrated that appropriate accommodation and sufficient numbers of
trained community mental health staff are available to provide adequate
care and support".

It appears clear that this recommendation and all the associated recommendations
about the support needed by people with a mental illness still need attention.

Otherwise, and despite the advances in legislation and in policy at the
level of rhetoric, the reality for people with a mental illness and carers
will continue to be denial of human rights in practice.

Let me close by again commending the organisers of this conference for
seeking to enhance the level of debate and accountability on human rights
outcomes for people with mental illness. I wish you success in your further
discussions.