1. Introduction
1.1 About
MDAA
The Multicultural Disability
Advocacy Association of NSW (MDAA) is the peak body in
NSW for people from a non-English speaking background
(NESB) with disability and their families and
carers.
MDAA is the only advocacy service
in NSW specifically available to people from a NESB with
disability, their families and carers.
MDAA is working towards
- Promoting, protecting and
advocating for the rights of people from a NESB with
disability and their families and carers in
NSW
- Contributing to a process that
ensures access & equity for people from a NESB
with disability and their families and carers in NSW
in the government and non-government
sector.
1.2 Our expertise and focus of
Submission
We base this submission on our
experiences with people from a NESB with mental illness
through our work as advocates. MDAA has been advocating
for people from a NESB with mental illness since 1995 and
we have acquired significant experience and knowledge in
this area. In 2003-2004 we have supported 142 consumers
who have identified a psychiatric disability as either
their primary or secondary disability. It is important to
note that we also work with a significant number of
people who have a mental illness and intellectual
disability. Our work is with people from all cultural
backgrounds except Anglo-Australian and therefore our
expertise is not specific to one particular cultural
group.
We also refer to our previous
submissions (including our Submission to the NSW Upper
House Inquiry into Mental Health Services 2002) and
previous research (including "Reality Check" undertaken
by the National Ethnic Disability Alliance).
The focus of this submission is on
how the current Act affects in particular people from a
NESB with a mental illness and where appropriate their
carers. We have also made some comments on sections,
which appear crucial to us in terms of the rights of
people with mental illness.
2. Detailed Response
Part 2: Objects of the
Act
Overall, MDAA is looking for
changes which strengthen wherever possible the human
rights of people with mental illness. We also recommend
that the language of the Act be updated to reflect more
recent thinking and to make the legislation more
accessible. As section 4 sets the tone for the Act we
would like to make the following
recommendations:
- change language to person/
people with mental illness/ mental
disorder
- remove all reference to control
and overall strengthen the rights of people
- develop principles similar to
the principles and application of principles of the
Disability Services Act ; also consider Commonwealth
Mental Health Standards
- given the cultural diversity of
the community make reference in the principle to the
cultural, linguistic and religious diversity of the
community
- recognise the specific issues
facing children
- recognise the specific needs
and issues of people with dual diagnosis, in
particular people with mental illness and intellectual
disability
- tie the objects and principles
to relevant United Nations Principles, National Mental
Health Standards and the National Model Mental Health
Legislation.
- in the principles articulate a
right to service
- include as an objective of the
Department a seamless service delivery system
- include a focus on early
intervention and prevention as one of the
principles
Part 3: Mentally ill and mentally
disordered Persons
In relation to the definition
of mental illness MDAA recommends the inclusion of a non
exhaustive glossary and recommends that the current list
remains as it is. MDAA is concerned that the exclusion of
Personality Disorder has in practice meant that people
needing treatment are not being treated, however, given
how freely this diagnosis is being used we would also be
concerned at including it in the definition. We would
urge NSW Health to issue a directive/ memo which clearly
states that someone diagnosed with Personality Disorder
is NOT automatically excluded from having the Mental
Health Act apply.
Comments have already been made in
relation to the language used. We recommend a continued
separation of person with mental illness and person who
has a mental disorder for the purpose of taking into
account the episodic nature of the latter. We recommend
that words such as suffer and control be
removed.
In relation to Section 11 of the
Act we recommend that the list remains and we recommend
that one the one hand people with intellectual disability
and other cognitive disability be excluded but that
people who have a dual diagnosis be specifically
included.
Part 4: Admission to and care in
hospitals
Given the limited community
options available we would strongly agree that people
under Guardianship ought to have their guardian involved
in any discharge arrangements.
In relation to other suggestions
for reform, we acknowledge that there are additional
difficulties for people in rural and remote areas. In
addition, we believe that there are concerns about
admissions for people who do not speak English when there
is no Interpreter present. We recommend that any reforms
spell out that an interpreter (at least a telephone
interpreter) needs to be involved where there is an
admission to hospital.
In relation to who is to conduct
the initial examination we urge the reviewer to consider
that what is needed is competency in a particular set of
skills and knowledge. From our perspective it is crucial
that the 'accredited person' has a high level of cultural
competency. Ensuring that all 'accredited persons' have
cultural competency would also deal with the issue of
people from a NESB. In our experience the lack of
cultural competency is a crucial factor in the violation
of the rights of persons from a NESB with mental illness.
Further, it is important to point out that while not
being able to speak English and therefore having access
to an interpreter is crucial, transcultural mental health
expertise and knowledge is also imperative when dealing
with many people from a NESB. Overall MDAA favours a
strengthening of the cultural competency as a core
competency while also arguing for the need of 'bicultural
experts'.
'Bicultural experts' are crucial in
relation to medical treatment. Having advocated on behalf
of several people from a NESB with mental illness who
reacted very differently from their Anglo- Australian
counterpart to medication (and who were not believed) ,
we strongly recommend the introduction of
ethnopsychopharmlogical assessments where appropriate. A
protocol for when such assessments need to be undertaken
needs to be developed in consultation with the relevant
experts and consumers.
Overall, we strongly urge that
people working within all levels of the mental health
system are required to develop cultural competency
skills. This also applies to the cultural competency
skills and knowledge of magistrates and the skills and
knowledge of the Mental health Review Tribunal.
We recommend that the time
limitations remain in place.
In relation to procedural matters
we want to point out the importance of the availability
of interpreters, translated and accessible information on
rights and the processes in general, as well as
availability of independent advocates.
Part 5: Management of forensic
Patients
Overall we argue that
whenever possible forensic patients should be treated
like other patients wherever possible.
From our perspective it would be
useful to have two categories of forensic
patients.
MDAA recommends in line with the
arguments stated in the paper, that the executive
discretion be removed and that this power be vested with
a better resources Mental Health Review Tribunal. This
would enable the Supreme Court (or the ADT) to deal with
appeals and with the more serious issues on conditional
release for forensic patients.
There should be no notifications to
Attorney General, Police and Director of Public
Prosecutions.
There ought to be a time limit of
14 days and transfer ought to be canceled by the medical
practitioner in goal. It would be best if the Mental
Health Review Tribunal were to inform the patients legal
representative in cases of delay of legal
proceeding.
Juvenile offenders need to be
firstly recognized within the principles outlined in the
beginning and secondly, their specific needs and issues
need to be addressed through a specialist
unit.
MDAA strongly supports the need to
legislate for strong interagency cooperation. This is
crucial and currently the non- cooperation leads to 'buck
passing' and to people not receiving services. Currently
much of our work is with people who have been failed by
the system. Transition planning is one crucial element in
assisting people to succeed. We recommend that a 'support
structure' similar to the structure set up through
Probation and Parole be available to people. Such a
system could also deal with breaches.
Part 6 Care and Treatment outside
hospitals
MDAA perceives that the low
utilisation rate of community counselling orders is in
part also a refection of the continual crisis in which
the current system is operating. Much of what we see is
that people cannot get community counselling and other
'preventative' services. While we have no specific
recommendation it may be useful to reflect how a more
early intervention and prevention focus could be included
in the Act.
We do not support the lengthening
of time for which orders can be made. Discharge reports
ought to be plans for the future and should be made in
collaboration with the consumer, their case- manager, and
other relevant persons and signed off by the Mental
Health Review Tribunal.
Part 7 Medical and Therapeutic
Treatments
Overall, we have commented on
the need to enhance the cultural competency of people
working in the mental health system. This is particularly
relevant when considering invasive surgery and
therapy.
MDAA does not support the use of
psychotherapy at all. In relation to ECT, we argue that
ECT must be only a therapy of last resort, must not be
used on involuntary patients unless not doing so puts
their life at risk.
We support bringing medical
treatment provisions in line with those of the
Guardianship Act.
Part 8: Establishment of Hospitals
and Official Visitors
Given an increase in the
number of areas where only private hospitals are
available (i.e Port Macquarie) we strongly support that
those Private Hospitals NEED to admit people for
involuntary treatment. In order to protect people's
rights and ensure that they receive quality services,
private hospitals need to comply with the same
legalisation and regulations as public hospitals.
We would again argue that it is
crucial that official visitors have the relevant skills
and knowledge and that types of qualification are
irrelevant. As argued before we look towards the visitors
having cultural competency skills as part of their core
skills.
The expanded function of the
official visitor should be recognised and additional
resources need to be made available to adequately provide
for those functions. We argue that the six monthly visits
should be maintained.
We believe that is it important
that families and carers are allowed to arrange for a
patient to have access to an official visitor.
Part 9: Proceedings of the Mental
Health Review Tribunal
In relation to the
proceedings in general we note that the overall skill and
abilities of Tribunal members in their use of
interpreters varies greatly. We strongly recommend that
one of the core competencies developed for tribunal
members is their ability to use and work with
interpreters. This also needs to extent to booking the
right language interpreter (we know of situations where a
Lebanese Arabic speaker had been booked for a Sudanese
consumer; or worse, a Serbian interpreter had been booked
for a Bosnian consumer).
Secondly, overall we are concerned
about the quality of interpreting. While we believe that
it is now standard practice to use qualified
interpreters, many of those interpreters are not trained
in 'mental health' specific issues. We recommend the
establishment of a trained interpreter pool, which could
be used as a priority. Training for those interpreters
should include rights of consumers at mental health
review tribunal hearings, legal aspects, mental health
awareness training.
Thirdly, legal representation is in
our experience not always available and the current
resources available to the Mental Health Advocacy Service
are totally inadequate. In addition, non- legal advocacy
and support is also often not available, leaving people
without support and representation at a very vulnerable
time.
In terms of videoconferencing and
teleconference we recommend the trial of a range of
technologies which could meet the need of people coming
before the tribunal. We would recommend that the Act be
amended to acknowledge the use a various technologies to
best meet the needs of consumers. This is particularly
the case for people from a NESB, Aboriginal and Torres
Strait islander peoples, people with sensory disabilities
and people with cognitive disabilities.
We believe that a copy of the
proceedings of the hearing should be provided
automatically in a format accessible to the person before
the tribunal (this may include translated materials,
materials in braille, plain English, etc.).
We acknowledge that there are
reasons when the tribunal may want to close the hearings.
We would recommend that these reasons be clearly
documented by the Mental Health Review
Tribunal.
Part 10 Cross Border Arrangements
and other issues
We agree with the need to
develop better cross border agreements.
The ADT has proven to be a useful
body for appeals, being more accessible and less
expensive than the Supreme Court. If the ADT were to
become the body for appeals under the mental health Act,
it is imperative that ADT members receive extensive
mental health awareness training, conducted by arrange of
people including people with a mental illness. In
addition, it is crucial that the Panel is made up of
experts, including people with mental illness.
Discharge planning is crucial for
people to succeed and is essential in providing support
when returning to the community. Discharge planning si
crucial to enable people to succeed and is presently
mostly lacking. We strongly support the amendment of
Section 293.
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