Mental Health Council of Australia Annual Board Dinner

Mental Health Council of Australia
Annual Board Dinner

Dr Sev Ozdowski OAM, Acting Disability Discrimination Commissioner 17 June 2004 Sydney

Introduction

Allow me to begin by acknowledging the traditional owners of the land
on which we meet - the peoples of the Eora nation.

I also acknowledge Keith Wilson, President of the Mental Health Council
of Australia; Chief Executive Officer Dr Grace Groom; and others here
who have profound knowledge of mental health issues as family members
and carers, as professionals, and as people directly affected by mental
illness.

I was quick to accept the invitation to speak tonight. Working with non-government
organisations is an important part of the charter given by the Australian
Parliament to the Human Rights and Equal Opportunity Commission and an
essential part of how I see my roles as Human Rights Commissioner.

That applies to industry and professional bodies representing people
with responsibilities under human rights and anti-discrimination legislation,
as well as to organisations representing people with disabilities and
their families.

In particular, I am committed to expanding the Commission's co-operative
work with the Mental Health Council, and I will mention some aspects of
that tonight.

Of course after I had accepted the invitation to speak I had the same
doubts which perhaps often occur to you when called on to speak in public,
and in particular when speaking before an audience with intimate knowledge
of the subject:

• How to be brief yet sufficiently detailed;
• How to be clear without being superficial;
• And most of all, how to avoid simply telling you things that you already
  know.
  

After those first doubts, though, I decided that I am actually reassured
as a speaker by the level of knowledge and experience represented here.

I say that because it must be as obvious to you as it is to me that I
cannot have the same level of expertise in all the issues as you do, and
that you will not be expecting pronouncements brought down from the mountain.

Limits and scope of HREOC role

It is true that the national human rights commission occupies an important
position, and I think I can say that that over the years we have built
up a solid body of work.

On some occasions, though, that seems to lead to an expectation that
on any subject and at any time we will be able to appear, like Moses,
with two tablets of stone; or at least with a two volume report.

It seems all too common for people in other areas of government, in particular,
to assume that human rights dimensions of an issue must be the human rights
commission's responsibility rather than their own.

A striking example of this was when some years ago it was proposed to
us that we should run the TTY relay service to give telecommunications
access for deaf and hearing impaired people - since the issue after all
was about disability access and human rights.

We pointed out that the same logic would see HREOC itself running public
transport services, telecommunications systems and indeed almost everything
else as well. So we managed to avoid the human rights commission taking
over the telecommunications system. Perhaps that was a mistake given the
profits we could have made, but it is probably too late now to cash in…
.

Whatever a few media and political commentators may believe, or at least
say they believe, calls - at least by HREOC - for more effective human
rights protection are not some sort of self interested bid for more power
by human rights bureaucrats.

The core of human rights protection is about making democratic systems
work more democratically, to include the powerless as well as the powerful,
minorities as well as the majority, and the winners as well as the losers
in markets and other lotteries of life, which bestow riches and ability
on some, poverty and disability on others, and a mixture of both on most
of us.

Human rights are about promoting accountability in our institutions and
participation in our society.

So the main power of a human rights institution is in promoting public
awareness and debate of human rights issues.

HREOC findings based on substantial investigations

Since it was established in 1986, I think the Human Rights and Equal
Opportunity Commission has built a strong reputation for solid work on
the issues we take on and for only making public findings after thorough
investigation.

That is not how we are always portrayed.

There is of course a small group of people in the media who still try
to claim that Sir Ron Wilson's inquiry on the separation of Aboriginal
children from their families only heard one side of the story - despite
the facts on the record showing extensive evidence taken from responsible
government authorities.

I felt it was in some ways an honour to be placed in Sir Ron's company
and see the same sort of claims being peddled about a supposed lack of
due process in my own inquiry into children in immigration detention -
again despite the record showing the lengths we went to, to ensure that
the authorities had every opportunity to respond to all allegations raised
before the report was released.

Surely, though, no one could be accused of jumping to conclusions for
expressing concerns about protection of human rights for people in Australia
affected by mental illness or the state of mental health services.

The field is now piled high with reports of inquiries detailing inadequate
services and neglect of human rights.

A towering contribution to this landscape was the report issued in 1993
by my predecessor Brian Burdekin as the result of his National Inquiry
into the Human Rights of People with a Mental Illness.

National Inquiry into the Human Rights of People with
a Mental Illness.

This inquiry was carried out over several years including hearings conducted
around Australia, hundreds of submissions and extensive research.

Unfortunately, it seems that most of the major findings remain relevant
and concerning today.

Let me remind you briefly of the main themes of the Commission's 1993
report.

The inquiry found

• Widespread discrimination and denial of services
• A need for substantial public education efforts to change community
  attitudes
• Failure by governments to invest the money saved by deinstitutionalisation
  into adequate community services
• A need for education for service providers to perform changed roles
  in an environment emphasizing community care
• A need for additional resources for preventive measures
• NGOs carrying a major part of the burden without adequate funding
• Lack of suitable supported accommodation
• Discrimination in employment
• Families and carers struggling with inadequate support
• Inadequate services for women; children and young people; non-English
  speaking people; indigenous people; and in particular for people with
  other disabilities in addition to a mental health problem
• Human rights breaches for people with a mental illness encountering
  the justice system
• A need for improved accountability and service standards and a need
  for law reform.

I am sure that, for you as for me, most of that sounds only too relevant
today.

Results following national inquiry

I am not saying that the 1993 report was a failure or that it went unnoticed.
I think it did have a major impact on political and public attitudes to
mental health issues.

The inquiry leading to the "Burdekin Report" clearly contributed
to the development of the first national mental health strategy.

The Strategy defined the directions for reform of mental health policy
and services and established a framework for collaborative effort between
Commonwealth,State and Territory Governments.

Let me quote for a moment what the Mental Health Council of Australia
said on the history of mental health reform in their report last year
"Out of Hospital, Out of Mind":

In 1992, the Australian Health Ministers committed their governments
to correct decades of neglect in mental health.

A national mental health policy was developed and mechanisms were described,
to lift Commonwealth and State expenditures; reduce human rights abuses;
move the locus of care from hospitals to the community; and, deliver
quality mental health within the mainstream of Australian health and
welfare services

In 1993, the Human Rights Commissioner's Report ('Burdekin Report')
brought the human rights issues of overt abuse within institutions,
and covert neglect in the wider community, to the attention of the general
public.

For the next 10 years, Australian governments implemented two five-year
plans aimed at: facilitating genuine participation for consumers and
carers; developing high quality community-based mental health care;
and, outlining a broader population-based health promotion and disease
prevention approach.

This new national focus, on a long-neglected health area, assumed that
all governments would invest additional dollars in the exercise. Those
persons in need of mental health services, and their families, greeted
these national commitments with great enthusiasm and expectation. Everyone
assumed that real change required not only large increases in resources
but also promotion of genuine national leadership and widespread professional
and community support.

It must be acknowledged that increased resources for mental health and
related services did in fact accompany the new approach. In particular,
the Commonwealth Government allocated funds for the first time specifically
for mental health services. Federal initiatives in response to the national
inquiry report included $200 million over 4 years for services either
directly targeted at, or providing substantial benefit to, people affected
by mental illness.

There were also substantial law reform initiatives.

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.

So it would be comforting to draw a picture of the National Inquiry and
the developments which followed from it as having transformed life for
people with mental illness and their families: with increased emphasis
on community care, improved legal rights and protections, and increased
resourcing of services.

And yet more than ten years after the Human Rights Commission inquiry
we continue to see reports from inquiries and evaluations describing a
situation of ongoing crisis.

There have been a series of reports at State level which no doubt you
are familiar with and which I will not go through now.

The evaluation of the Second National Mental Health Plan, published in
March 2003 by the Commonwealth Government itself, stated that:

progress has been constrained by the level of resources available for
mental health and by varying commitment to mental health care reform.
While the aims of the Second Plan have been an appropriate guide to
change, what has been lacking is effective implementation. The failures
have not been due to lack of clear and appropriate directions, but rather
to failures in investment and commitment.

A shorter way of saying that might be that governments have not matched
words with enough dollars.

Key conclusions of the evaluation were that

• the aims of the National Mental Health Strategy have not yet been
  fully translated into the expected benefits for consumers and carers
• while there has been growth in mental health expenditure, this has
  simply mirrored overall health expenditure trends and is not sufficient
  to meet the level of unmet need for mental health services;
• despite some progress towards improving consumer rights and consumer
  and carer participation, full and meaningful participation for consumers
  and carers has not yet been achieved, particularly in relation to individual
  treatment and recovery plans;
• community treatment options are still inadequate, with NGOs insufficiently
  resourced for their increased role
• although access to mental health care has been improved, consumers
  are still frequently unable to access mental health care as and when
  they need to
• in particular, follow-up care into the community after hospitalisation
  for an acute episode is often lacking.
  

Mental Health Council of Australia report

Very similar conclusions can be found in the "Out of Hospital Out
of Mind" report released by the Mental Health Council in April 2003
in the lead up to the Third National Mental Health Plan.

This report states simply:

Despite the efforts of many committed politicians, government officials,
service providers and community advocates, we do not have a system of
effective or accessible mental health care.

As with other reports, the Mental Health Council pointed to failure to
turn innovations in policy and treatments sufficiently into practice,
particularly in the areas of prevention, early intervention, mental health
promotion and improved public awareness, as well as in developing better
partnerships between specialist resources and the GPs and community services
who are providing care to most of those people with a mental illness who
are receiving any services at all.

In a media article last year the authors of this report pointed the finger
directly at insufficient financial commitment by governments in Australia
to turn policy into reality, stating that:

• "mental health services remain the poor cousin of health in Australia"
• "our comparative position relative to other first world countries
  is declining"
• "mental disorders account for 27% of all disability costs but
  attract only 7% of health funding, while other OECD countries typically
  expend 12-15% on mental health"
• "New Zealand now spends twice as much per capita as Australian
  Governments, and three times as much as our largest state of NSW"
• "the collective failure of State Governments to implement our
  national mental health policy during the 1990s now leaves the architects
  of that policy having to defend its most basic assumption, namely the
  value of community-based rather than institutional care" .
  

The report called for:

• lifting mental health expenditure to at least 12% of total health
  expenditure (an increase of five percent) within five years, and dedicating
  resources to supporting innovation in services and treatment; and
• improved accountability and review: including a heads of government
  agreement for reporting on progress against agreed service indicators
  and establishment of a permanent independent commission to report on
  progress of mental health reform in Australia and investigate ongoing
  abuse or neglect.
  

Response to "Out of hospital out of mind"

Last year I wrote to the Federal Minister for Health to support the need
for a positive response by Government to the Mental Health Council of
Australia report.

I urged consideration of the Council's call for establishment of a national
Mental Health Commission such as exists in New Zealand. I wrote that

there appears considerable merit in the Mental Health Council's view that
a national Mental Health Commission would be able to make substantial
contributions to policy development, monitoring and accountability, and
community education regarding mental health issues.

The then Minister responded that the concept of a national Commission
of this kind was not transferable from New Zealand to Australia's federal
system.

I have to say that if I were a Minister in any Australian Government
I would find it difficult to rest with the conclusion that our system
of government is less able to deliver accountability and results for people
with a mental illness and their families than that of New Zealand.

As I have said, though, the Human Rights Commission does not mistake
itself for the government of Australia - we can only perform our own role
of seeking to enhance public debate and awareness.

The government response to the Mental Health Council's recommendations,
and my representations in support of those recommendations, appeared also
to indicate that a mental health commission was not required because HREOC
had power to investigate relevant human rights issues.

Let me say again, as my colleague the President of the Commission said
last year: The ability of the Human Rights Commission to conduct national
inquiries is in no way a substitute for ongoing mechanisms for accountability,
education and policy development.

I have no expectation at all that the national government is about to
allocate to us additional budget funding to enable the Commission to reproduce
an inquiry on human rights and mental illness on the scale conducted by
Brian Burdekin in the 1990s.

Given limited resources, any decision to commit the Commission to a national
inquiry on one issue inevitably involves a decision not to commit resources
to a hundred other issues.

I could only support an inquiry where there is good reason to think that
it can make a substantial contribution to moving important issues forward.

An inquiry might get the failures of governments onto the front page
- which can be a powerful factor in itself of course - but we may struggle
to get any more success in moving the story on from there to get lasting
results beyond the headlines.

The importance of issues of access to mental health services cannot be
doubted. But we simply should not need another inquiry on mental health
services. The solutions on these issues have largely been identified:
what is lacking appears to be the will and support of governments to implement
them.

I want to come back to the point that the experience of people with a
mental illness and their families is not determined solely by the effectiveness
or otherwise of mental health services. Issues of stigma and discrimination
have a large impact on mental health outcomes and on the ability of people
to participate effectively in society.

If we do now accept - or still accept - that people with a mental illness
should as far as possible be living and working in the community, there
remains the question: how prepared is the community to accept and support
people affected by mental illness?

Several submissions to the inquiry which has just been concluded by the
Productivity Commission into the Disability Discrimination Act emphasised
that improved education and public awareness efforts are required to reduce
discrimination against people with mental illness and their families.

There seems great force in arguments that we need an ongoing awareness
and information campaign on mental health issues on the same scale as
road safety campaigns, to promote prevention and access to treatment and
to combat stigma and discrimination.

But such a campaign requires serious resource commitments and leadership.

The Mental Health Council proposal for a national Mental Health Commission
contemplated public education on mental health issues as a major function.

Without in any way thinking that our own efforts can substitute for larger
scale commitments by governments, I am looking at what more the Human
Rights and Equal Opportunity Commission can do in this area.

Employment issues

Examining what HREOC can do itself to promote access and opportunity
for people affected by mental illness includes looking at possibilities
on employment issues.

Employment is an area where the draft Productivity Commission report
and HREOC's own assessments have indicated a need for substantial further
work and consideration of possible new approaches.

This need has been given particular emphasis by recent judicial decisions
calling into serious question the effectiveness of the DDA in dealing
with reasonable adjustment issues, particularly in the employment area.

There are indications in recent Federal Court decisions that - as a result
of what I regard as serious misinterpretations both of the Act and of
the High Court decision last year in the case of Purvis v New South Wales
- some judges may now be interpreting the DDA as not including any requirement
of reasonable adjustment at all.

One of those decisions - the Forbes case - was about a person with a
mental illness and included comments which seem to deny that provision
of rehabilitation or counselling or time off work could be required by
the DDA.

In effect this could mean treating the DDA as covering only a lack of
formal equality - despite this being in my view clearly contrary to the
intentions of the Parliament, and not being required by what the High
Court actually decided in the Purvis case.

Such an approach would clearly render the Act largely ineffective in
dealing with the majority of discrimination issues that have arisen in
complaints and policy work over the last 11 years.

It would render the Act virtually worthless to people with any psychiatric
disability that requires any significant accommodation.

I am considering as a matter of urgency what responses are possible to
these developments, and I would urge you to do the same.

Possible public inquiry

Although the law and its interpretation is important, it is obvious that
the law is not anywhere near the whole answer to issues of equal opportunity
and participation in employment any more than it is in any other area
of life for people with mental health issue or any other disability.

The Productivity Commission inquiry applied considerable resources to
examining the effectiveness of the DDA in achieving the objectives of
equal access and opportunity for people with disabilities.

But it has been put strongly to me that there could be value in an inquiry
which is more specific in dealing with employment rather than all the
areas covered by the DDA - but which is also broader in examining all
available strategies rather than only with legislative and regulatory
solutions.

People affected by mental illness appear to be grossly disadvantaged
in employment participation and outcomes, and to be particularly inadequately
addressed by existing policies and programs to promote participation and
opportunity in employment.

I am currently conducting a round of informal consultations on possibilities
for a public inquiry on employment and disability issues. More formal
consultations will follow as and if this proposal advances but I would
very much appreciate any input that you can provide now.

Current consultations

As I said earlier it is not the role of a human rights commission to
present ourselves as the ultimate authority in place of community and
professional experts or to sit in judgment on what you are achieving with
limited resources and increasing demands.

In the Commission's National Inquiry on human rights and mental illness,
our aims were to provide a forum for the experience of people affected
by mental illness, as patients, families, or carers, together with community
and professional service providers; to seek to refocus debate in this
area as involving matters of human rights; and to draw public and political
attention to this experience as a means of promoting accountability and
remedies where abuses or neglect of human rights were found.

With the same aim I have been very glad to support an initiative by the
Mental Health Council to conduct surveys and consultations with people
in the mental health sector - professionals and people with a mental illness
and their families,

Over the next two months, together with Dr Grace Groom and Professor
Ian Hickie, I will be participating in a series of community forums to
discuss issues in mental health and related services around Australia.

The purposes of these forums and the surveys being conducted by your
Council are the same as the purposes of Brian Burdekin's inquiry now more
than a decade ago - to gather evidence based on direct experience; to
draw public and political attention to that experience; and above all
else to generate action. People touched by mental illness deserve and
expect nothing less.