Psychiatrists' perceptions of administrative review: A Victorian empirical study

Psychiatry, Psychology and Law

Volumn 12, Issue 1, 2005, Pages 68-87

  Grundell, Erica ^a  

^a Department of Human Services ^*  (Australia)

Author keywords

[No Author keywords available]

Indexed keywords

ATTITUDE; CLINICAL PRACTICE; GOVERNMENT; HOSTILITY; HUMAN; HUMAN RIGHTS; INTERVIEW; LAW; MENTAL DISEASE; MENTAL HEALTH; PERCEPTION; POLICY; PSYCHIATRIST; PUBLIC HEALTH SERVICE; REVIEW;

EID: 22544453607     PISSN: 13218719     EISSN: None     Source Type: Journal    
DOI: 10.1375/pplt.2005.12.1.68     Document Type: Review

References (73)

1. Hansard, Legislative Council, 26 March 1986, 286.
2. See for example the Mental Health Act 1983 (UK), which established a Mental Health Review Tribunal.
3. For a discussion of the shift between a purely medical model for involuntary detention and a more legalistic approach, see B J Winick in 'A Therapeutic Jurisprudence Model for Civil Commitment' in K Diesfeld and I Freckelton (eds), Involuntary Detention and Therapeutic Jurisprudence: International Perspectives on Civil Commitment, 2003 at 23-24.
4. See for example psychiatrists' conference papers published in The Mental Health Act into the '90s (1990).
5. E Grundell, The Impact of Administrative Review Pursuant to the Mental Health Act 1986: Some Psychiatric Perspectives, 1995. Seventeen of the 22 psychiatrists interviewed as part of this research were authorised psychiatrists of approved mental health services. Four were psychiatrist members of the Mental Health Review Board. The chief psychiatrist of the Department of Human Services was also interviewed.
6. Australian Health Ministers, National Mental Health Policy and National Mental Health Plan, 1992.
7. Department of Health and Community Services, Victoria's Mental Health Services: The Framework for Service Delivery, 1994.
8. See Department of Health and Family Services, National Mental Health Report 1995, 1996 at 37.
9. Auditor General of Victoria, Mental Health Services for People in Crisis, 2002.
10. See for example an article in the Melbourne Age on 1 September 2004 entitled 'Mental Health System Completely Failed' in which a mother criticised the failure of community mental health services to adequately assess and treat her son. She argued before the Victorian Coroner that this failure resulted in her son's suicide in 2002.
11. The 2004 interviews were structured using the 1995 research questions as a basis. These questions were supplemented by an additional question concerning the impact of reforms on psychiatric views of the Board. In addition, a question concerning whether or not administrative review by the Board has any impact on standards of treatment and care was modified to seek information on whether psychiatrists consider administrative review can result in positive therapeutic outcomes for patients. Psychiatrists' views were also sought on new Board powers concerning treatment plans. All psychiatrists permitted interviews to be recorded and transcribed to enable accurate analysis. Where possible, responses have been thematically grouped; views expressed frequently or consistently are described in detail and are illustrated by direct quotes.
12. Note that for ease of reference, the 1995 and 2004 responses have been described in percentage terms to enable accurate comparison.
13. There was widespread community concern during this period that reductions in bed numbers may be driven solely by economic imperatives and that funds released would not be tied to the establishment of replacement services. See National Mental Health Report 1995, above n 8, 37.
14. The Commonwealth acknowledged that delivering the goals of the Strategy represented a complex set of challenges, as states needed to simultaneously improve standards in their institutions while they were contracting in size and scope. It was further recognised that any resources released from downsizing of institutions could not be solely directed to improvements in institutional quality, but needed to be set aside to promote rapid growth in new service models. Ibid, 55.
15. At the commencement of the Strategy, 29% of total spending in Victoria occurred in community services. By the time the 1995 National Mental Health Report was published, this had increased to 44%, spent principally on community mental health clinics, residential services in the community and non-government psychiatric disability support services.
16. From 1887 at the start of the Strategy to 1087 in June 2000: see further Department of Health and Ageing, National Mental Health Report 2002, 206.
17. Ibid, 60.
18. From the commencement of the Strategy. Ibid, 58.
19. From 295 in 1993 to 1156 in June 2000. Ibid, 226.
20. National Mental Health Report 2002, above n 16, 58.
21. Ibid, 206.
22. The number of registered clients of Victorian mental health services increased to approximately 58 000 in 2003. It was recognised during this period that service gaps existed in relation to treatment of depression and anxiety disorders: New Directions for Victoria's Mental Health Services, Department of Human Services 2002.
23. See Chapter 2 of the Auditor General's report, (above n 9) which refers to the Commonwealth Department of Health and Aged Care study of People Living with a Psychotic Illness: An Australian Study 1997-1998 (1999). This study found that harmful substance use was reported by 49% of people with a psychotic disorder in the 1999 national psychosis survey.
24. See R Vine, 'Decision Making by Psychiatrists about Involuntary Detention' in K Diesfeld and I Freckelton (eds), Involuntary Detention and Therapeutic Jurisprudence: International Perspectives on Civil Commitment, 2003, 126.
25. This combination of factors was described by the Victorian Auditor General in his 2002 report (above n 9), and led to an increase in government funding to services. Even with this increase in funding, services remain extremely pressured, and are continually struggling to meet demand and to provide consistently high quality services. For recent discussion of these pressures, see for example 'The shame of our forgotten people', Sunday Age, 12 December 2004.
26. Vine, above n 24, 123.
27. Ibid, 113.
28. Ibid, 118.
29. Ibid, 127.
30. Ibid, 113-132.
31. I b i d.
32. I b i d.
33. Vine notes that in recent times, young men with schizophrenia and co-morbid substance abuse have formed an increasing proportion of those receiving treatment in public facilities in Australia, with consequent effect on the milieu of those facilities. Ibid, 127.
34. Ibid, 126.
35. I b i d.
36. See further parts III-V.
37. Above, n 3 at 25.
38. Ibid, 25-26.
39. I b i d.
40. For further discussion of this perspective, see, for example, I Freckelton, 'Involuntary Detention Decision-making, Criteria and Hearing Procedures' in K Diesfeld and I Freckelton (eds), Involuntary Detention and Therapeutic Jurisprudence: Inter-national Perspectives on Civil Commitment, 2003, 296.
41. Above, n 3 at 32-33. See also the views of Michael Perlin (supported by Freckelton, ibid), who argues that this area of mental health law is pretextual, with tribunals accepting evidence of expert witnesses which is designed to achieve desired ends. M Perlin, Preface to Involuntary Detention and Therapeutic Jurisprudence: International Perspectives on Civil Commitment, 2003.
42. Ibid, 34.
43. See also N Ferencz, 'Patients' views of the Mental Health Review Tribunal Procedure In England', in Diesfeld, K and Freckelton, I (eds), Involuntary Detention and Therapeutic Jurisprudence: International Perspectives on Civil Commitment, 2003. Ferencz found that patients who had high expectations of the tribunal experience experienced more confusion, powerlessness, dissatisfaction and distress following a hearing. She argues that further research for patients should include a format for education and guidance through the tribunal experience, and that all mental health staff would benefit from education to increase their awareness of these kinds of effects. At 261.
44. Section 36(2A)(c). Those orders do not take effect unless and until they have been approved by the Board: section 15A(9).
45. Section 22(2).
46. Section 24(1)(a).
47. Section 24(1)(b).
48. Section 24(1)(c).
49. Section 24(3).
50. Section 30. In the case of a patient whose detention has been continued under s12C of the Act (where the person is mentally disordered and would cause serious physical harm to him or herself), the Board must review their detention within 14 days of the consent to continued detention.
51. Section 29(4).
52. Section 36 and 44.
53. Section 8(1) contains the criteria for involuntary inpadent detention. Section 14(1A) contains the criteria for detention subject to a CTO. The Board requires a report on continued detention to be submitted to it, which addresses the statutory criteria and provides relevant additional background material. It further requires that the patient be given a copy of the report and have access to their files prior to the hearing, and that the report be explained to the patient prior to hearing. Usually, the patient's treating practitioner will present evidence to the Board - in most cases a medical officer or psychiatric registrar, though on occasion, the consultant psychiatrist or authorised psychiatrist will be present.
54. Mental Health (Amendment) Act 2003 (Vic).
55. Mental Health Review Board Annual Report 1995, 63.
56. Mental Health Review Board Annual Report 2000, 25.
57. Mental Health Review Board Annual Report 2003, 34.
58. In 2003, 30.6% of those patients seen were inpatients and 67.2% were subject to CTOs. Ibid.
59. Above, n 5, 13-14. A total of twenty responses were received to this question.
60. Two of the respondents did not provide a direct answer to this question but their views on the benefit or necessity of review were articulated in responses to other questions.
61. A total of twenty two psychiatrists responded to this question.
62. All twenty two psychiatrists interviewed responded to this question.
63. Personal communication from DHS employee involved in Board training on new regime.
64. In recent writing on administrative review and its therapeutic potential, Freckelton (above, n 40) discusses patient expectations and notes how intimidating it can be for patients to directly hear clinicians opposing their discharge. He argues that this and other factors lead many patients to be cynical about the process, commencing at hospitalisation and extending through to the review hearing. At 312-313.
65. Sixteen psychiatrists responded to this question.
66. Above, n 5, 20-21.
67. Twenty two psychiatrists responded to this question.
68. Note that the 1995 response to this question was relatively small - only 7 of the psychiatrists interviewed were working in the jurisdiction at the commencement of the Act. Above, n 5, 21.
69. Given the small size of the 1995 response. See n 67.
70. Seventeen psychiatrists responded to this question.
71. Sixteen psychiatrists responded to this question in 1995. Fifteen psychiatrists responded to this question in 2004. The 1995 question asked whether the person's mode of clinical practice had been affected in any way by decisions of the Board and if so, how. The 2004 question was reworded and asked whether the person's clinical practice had been affected in any way by decisions of the Board.
72. Seventeen psychiatrists responded to this question in 1995. Fifteen psychiatrists responded to the 2004 question.
73. Seventeen psychiatrists responded to this question in 1995. Eleven had had a patient discharged, and of these, three had agreed with a decision to discharge, two did not and considered this an a inappropriate use of the Board, two were uncertain or ambivalent and two did not answer this part of the question. In the 2004 responses, fifteen psychiatrists responded, 12 of whom had had a patient discharged. Of these, 7 indicated that at times they had agreed with a Board decision to discharge.