Project overview

Mental health tribunals: Balancing fairness, freedom, protection and right to treatment?

Professor Terry Carney, Dr David Tait, Fleur Beaupert

Overview

The principal aim of the study is to investigate the ‘fairness and justice’ of mental health tribunal (MHT) hearings in NSW, Victoria and the ACT, and to identify best practice reforms which enhance MHT processes and therapeutic outcomes for participants.  The study also hopes to encourage wider debate about the review process and facilitate dialogue between participants and stakeholders.   The research team is led by Professor Terry Carney from Sydney University and Dr David Tait from Canberra University from 2005-2008.  The NSW Mental Health Review Tribunal, ACT Mental Health Tribunal, Mental Health Review Board of Victoria and NSW Law and Justice Foundation are research partners, and the study is funded by the Australian Research Council.

Research questions

·               What is the impact of  hearings on consumers’ sense of ‘fairness’ and the actuality of that process?

·               What is the extent of consumers’ participation (or ‘engagement’) in hearings?

·               What is the ‘therapeutic’ impact of hearings and how do they relate to broader experiences of mental health care?

·               What symbolic and ceremonial power relationships exist between professionals, families and patients in the hearing context?

Study methodologies

Studies and literature

There is a dearth of previous studies on mental health tribunals.  2 major government commissioned studies have been conducted in the UK (Peay, 1989; Perkins, 2003), but no comparable research on this scale has been undertaken in Australia.  The UK studies suggested that the fairness of MHT processes was constrained by various factors. Research into mental health service users’ perceptions of tribunal processes has produced inconsistent findings: Peay found that patients experience tribunals as fair but powerless (Peay, 1989), while Ferencz found that patients experienced hearings as an extremely alienating process (Ferencz, 2003).  Commentators have thus called for a more holistic examination of the lived experiences of hearings (Du Fresne, 2003; Rees, 2003). It is evident that participants and stakeholders have widely conflicting views about the effectiveness of MHT operations.  Very broadly speaking, there is a gulf between those who express concerns that the legalistic and adversarial tendencies of mental health law and tribunal operations may damage the welfare of mental health service users (Obomanu and Kennedy, 2001: 331), and those of the view that hearings fail to adequately protect due process and autonomy rights of consumers (Pearson, 2004). 

Theoretical framework: therapeutic jurisprudence

Therapeutic jurisprudence is the prime candidate in terms of a theoretical perspective able to help to orient the present study.  This is because its interdisciplinary premise that law is a social force with inevitable consequences for mental health was pioneered within mental health law (Wexler, 1992).  Importantly, a therapeutic jurisprudence model for legal regulation of mental health care seeks to ‘more effectively … balance legal and therapeutic considerations’ (Winick, 2003: 25).  Therapeutic consequences encompass the impact of the law on participants’ psychological wellbeing.  In the context of MHT operations, such consequences would include: impact on (1) the mental health and sense of self-worth of consumers; (2) their relationships with clinicians and carers.  The key task for researchers is to suggest ways of restructuring the law so that it better fulfils its therapeutic potential in ways which are consistent with fundamental principles of justice. 

Some key issues based on preliminary analysis

Relevant issues from a clinical perspective?

Grundell has carried out valuable research into psychiatrists’ views about the processes of the Victorian Mental Health Review Board and their impact on clinical practice, comparing opinions in 1995 and 2004 (Grundell, 2005).  Some psychiatrists ‘considered that the Board is needlessly adversarial and legalistic at times and that this has the capacity to add to patient distress and anxiety in hearings’ (Grundell, 2005: : 80).  On the other hand, a number viewed the legitimising force of MHTs as a key benefit, allowing for more authoritative handling of clinically difficult situations. 

 

Conclusion

The tension between civil libertarian and best interests models has always been central to debates about legal regulation of mental health care.[1]   We believe that both camps have compelling arguments.  A careful balance must be struck between legal, medical, social and broader ethical interests in order to enhance MHT processes and outcomes for patients. 

References


[1] Harry v Mental Health Review Tribunal (1994) 32 NSWLR 315 at 322, per Kirby P.