Victoria Legal Aid has called for improved legal representation for mentally ill patients facing the state’s tribunal over treatment options.
The legal service said one of its specialist mental health lawyers in regional Victoria had been covering multiple country towns.
Figures from Legal Aid show in the last six months of 2017, there were 169 mental health hearings for Bendigo and its specialist lawyer could not attend all of them.
Legal Aid acting mental health program manager Hamish McLachlan said patients who fronted mental health tribunal hearings alone could be disadvantaged.
“Certainly our experience is that people get a much better outcome if they are legally represented,” he said.
Mr McLachlan said when people facing the tribunal did not have a lawyer, the outcome might not go their way, particularly in cases involving electro-convulsive treatment (ECT).
“The mental health tribunal approves applications for ECT in 90 per cent of cases, however that drops down to 50 per cent if the person has a lawyer there,” he said.
Mr McLachlan said representation rates were low across Victoria compared to New South Wales.
“In NSW, patients are represented at their mental health tribunal 78 per cent of the time. In Victoria it’s 17 per cent,” he said.
“That’s even lower in regional Victoria.”
Hamish McLachlan is an acting program manager in mental health and disability advocacy. (Supplied: Victoria Legal Aid)
Patients’ rights to refuse treatment not upheld, study finds
The call for improved legal representation comes after a study into Victoria’s mental health tribunal was published this week, involving Melbourne’s RMIT University and the University of Sydney.
Co-author Chris Maylea said the research looked at how the mental health tribunal made decisions, and found many of the outcomes were inconsistent.
“We found that people before the tribunal were having their capacity, their ability to make decisions considered by the tribunal in a way that didn’t uphold their rights to refuse treatment,” he said.
Dr Maylea said people had a right to make their own decisions and provide input to the tribunal, but there were limitations for regional patients.
“Workers, lawyers, advocates, doctors are spending a lot of their time driving around, whereas in the city they are spending a lot more time working,” he said.
“So it’s much more difficult to provide those services in the regions.”
Dr Maylea said the study published in the International Journal of Mental Health and Capacity Law had made a case for change.
“We think there is an opportunity here for policy and for practice reform really for the whole mental health system to better support people to make their own decisions,” he said.
No decision on test case
Last year, the Victorian Supreme Court heard a test case for two patients facing ECT against their will.
“The case was about really important fundamental human rights questions in relation to when someone should be regarded as having capacity to make decisions about their own healthcare,” Mr McLachlan said.
Legal Aid was arguing ECT should only be administered for patients against their wishes if it prevented them from harm.
At the time, Mental Health Minister Martin Foley said the state had a rigorous framework to deal with mental health debates.
Mr Foley said the Mental Health Tribunal, established in 2014, existed to determine treatment outcomes independently.
Tribunal defends its decision-making
Mental Health Tribunal president Matthew Carroll has welcomed scrutiny of its decision-making but disagreed with the study’s findings.
“The criticisms that are made from the tribunal’s perspective are based on a misinterpretation of the law,” Mr Carroll said.
He said under the Mental Health Act, the tribunal would consider whether a person had capacity when deciding on ECT.
“If they do, they have absolute liberty to choose whether or not to have ECT even where they are a compulsory patient,” he said.
Mr Carroll said compulsory patients’ refusal to accept treatment would be respected.
“Like any court or tribunal, our role is to interpret and apply the law as it’s written,” he said.
Mr Carroll said the tribunal’s procedures operated on the basis that most people would not be legally represented, and therefore it needed to do everything possible to enable patients’ full participation.
He said often matters would be adjourned if it gave patients more time to organise legal representation.
But Mr Carroll said mental health laws should not be set in stone, and they needed to be regularly checked to see if they reflected current expectations.
He said the patients’ opinions expressed in hearings were central to the tribunal, which contradicted the research findings suggesting choice was being ignored.