13 February 2007
Ms Svetlana Aristidi
Project Officer
Development Unit
Australian Council on Healthcare Standards
Submission: Review of the National Standards for Mental Health Services
Thank you for the opportunity to make a submission in this first phase of the Review of the National Standards for Mental Health Services.
Standards for the provision of mental health services are an important measure against which the Australian Capital Territory Human Rights Commission (‘HRC’) considers the quality and safety of the delivery of services that are the subject of complaint or inquiry. The HRC supports the main objectives of the National Standards as currently oriented to improve the quality of mental health care in Australia, with a strong values base related to human rights, dignity and person-centred care. The HRC also supports the use of notes and examples to provide concrete guidance for the implementation of the standards and for quality assurance activities. However, the National Standards for Mental Health Services are now a decade old, and in the ACT there have been significant developments in the legal framework within which services operate and in the recognition of consumer rights, as well as increased emphasis on community rather than institutional treatment.
In the course of dealing with consumer complaints, and by way of public interest inquiries, the Health Services Commissioner is in contact with consumer, carer and provider communities about concerns relating to the quality and safety of mental health services. From that perspective, this submission identifies gaps in the current National Standards and highlights areas where improvements might be made to address emerging provider and community needs and interests.
1. The Human Rights Commission complaints process and the National
Standards
The HRC is an independent agency established by the Human Rights Commission Act 2005. The HRC is comprised of three Commissioners with specialist jurisdictions:
· Human Rights and Discrimination Commissioner;
· Health Services Commissioner; and
· Disability and Community Services & Children and Young People Commissioner.
The HRC provides a fair and accessible process for dealing with complaints about discrimination, health services, disability services, services for older people, community services, and services for children and young people; as well as promoting service improvement and developing awareness in government, and the community, of human rights.
The Human Rights Commission Act provides for consideration of a complaint. Consideration involves obtaining information to work out whether the person or service complained about has acted inconsistently with an applicable standard. Sections 39 and 40 of the Human Rights Commission Act specifically requires the HRC to consider complaints about the provision of health services and disability services against “the National Standards for Mental Health Services endorsed by the Australian Health Ministers Advisory Council’s National Mental Health Working Group, as amended from time to time”.
In the 2005-2006 reporting year, 10% of complaints about health services concerned mental health services. The National Standards support the Commission’s independent system of assessing the quality and safety of services, and whether services are meeting community expectations.
2. The Health Records (Privacy and Access) Act 1997 (ACT)
The Health Records (Privacy and Access) Act 1997 applies to all records kept by health service providers in the ACT, including public and private sector services. It also applies to personal health information kept by any person or organisation. Information obtained by doctors, hospitals and other health service providers is kept in health records. These records are vital if treatment decisions are to be safe and well informed. The training of health professionals emphasises good record keeping practices, good communication between health service providers and consumers, and the confidentiality of information about consumers.
The Health Records Act provides a guarantee of good practice. It requires that records are created and kept in a manner that ensures the privacy of health information. It also requires that consumers of health services have adequate opportunity to access the information held in records that contain information about them. The consumer should know why the information is being collected and who will have access to it. Requests for information should not be unreasonably intrusive. The collector must ensure that the information is accurate and relevant to the purpose for which it is collected. Information must be stored safely and securely and, for an adult consumer, must be kept for seven years from the day the service was last provided by the record keeper; and, for a consumer under 18 years, must be kept until the consumer is 25 years of age (except where destruction is required or allowed under another Territory law). It should also be noted that the Privacy Act 1988 applies to ACT agencies, including those providing public health services.
Criteria 1.1 and 2.1 of the National Standards should be updated to reflect ‘privacy legislation’ in the examples.
3. The Human Rights Act 2004
The Human Rights Act 2004 aims to promote a human rights culture by recognising civil and political rights in ACT law. The Human Rights Act uses a ‘dialogue’ model, requiring the courts, the Legislative Assembly and the ACT Public Service to talk to each other about the human rights issues that arise in their daily business, and to act in a manner consistent with those human rights. The Human Rights Act commenced on 1 July 2004 and protects rights set out in the International Covenant on Civil and Political Rights:
· to recognition and equality before the law
· to life from the time of birth
· to protection from torture and cruel, inhuman or degrading treatment
· to protection of the family and children
· to privacy and reputation
· to freedom of movement
· to freedom of thought, conscience, religion and belief
· to peaceful assembly and freedom of association
· to freedom of expression
· to take part in public life
· to liberty and security of person
· to humane treatment when deprived of liberty
· of children in the criminal process
· to a fair trial
· in criminal proceedings
· to compensation for wrongful conviction
· not to be tried or punished more than once
· not to be subject to retrospective criminal laws
· to freedom from forced work
· of ethnic, religious or linguistic minorities
Unlike the Victorian Charter of Rights and Responsibilities 2006, the Human Rights Act does not contain an express obligation on public authorities to act consistently with human rights. It contains an interpretative principle (at subsection 30(1)), which states that ‘in working out the meaning of a Territory law, an interpretation that is consistent with human rights is as far as possible to be preferred.’ It recognises that some human rights are not absolute, such as privacy, and sets out a proportionality test in section 28, against which any limitations on human rights must be measured. The Human Rights Act also enables international law to be considered in interpreting rights (s.31) including declarations and standards adopted by the UN General Assembly enables international law, such as the United Nations Principles on the Protection of People with Mental Illness). Neither the ACT nor Victorian legislation gives express recognition to the right to health set out in the International Covenant on Economic, Social and Cultural Rights, to which Australia is a party.
As set out in the 2000 Report to the Australian Health Ministers Advisory Council, Mental Health Working Group, several Australian jurisdictions are directly in breach of these UN Principles, for example in respect of informed consent to treatment and notification to consumers of their substantive rights. We suggest that compliance be again measured given recent legislative changes, and local legislation be amended to implement the Principles: H. Watchirs, Application of Rights Analysis Instrument to Australian Mental Health Legislation.
The existence of the ACT and Victorian human rights legislation, and the principle of interpreting laws to comply with human rights obligations, could be recognised in the National Standards.
4. Carers’ rights in balance with consumers’ rights
The Health Records (Privacy and Access) Act provides for the disclosure of personal health information about a consumer, to persons other than the consumer, with the consumer’s consent or in other defined circumstances. In the former Community and Health Services Complaints Commissioner’s report to the Minister for Health, Investigation into Risk of Harm to Clients of Mental Health Services (November 2002), the Commissioner recommended that the Health Records Act be amended so that carers could have access to the information they need in order to carry out their functions as carers safely and effectively.
The Commissioner consulted with carers on the changes required and, in late 2005, the Health Records Act was amended to allow access to health information by carers in limited circumstances. The circumstances in which personal health information may be disclosed without the consent of the consumer include:
· if there is an emergency and a consumer cannot give or withhold consent, the treating health service provider may discuss relevant personal health information with an immediate family member of the consumer to the extent reasonable and necessary for the proper treatment of the consumer;
· where a consumer cannot give or withhold consent, personal health information may be disclosed to an immediate family member for compassionate reasons if the disclosure would be reasonably expected by the consumer and is not contrary to any wishes previously expressed by the consumer; and
· where a consumer cannot give or withhold consent, personal health information may be disclosed to a consumer’s carer if the disclosure is necessary to enable the carer to safely and effectively provide appropriate services to, or care for, the consumer.
Criterion 1.1 should be updated to reflect these provisions.
Nevertheless, tensions continue between the rights of consumers to have their privacy protected, and the expectations of carers to be involved by mental health services in the treatment of the person for whom they are caring.
While carers support the above amendments to the Health Records Act to allow for disclosure to a carer where the information is necessary for care to be provided, carers have made representations to the Health Services Commissioner that that solution is thwarted by only applying in circumstances where the consumer cannot give or withholds consent. Carers suggest that the opportunity for involving the carer arrives too late in the treatment process. Carers support involvement at an earlier stage (even without the consent of the consumer) to assist early treatment, to reduce potential danger to the carer, consumer and/or community, and to reduce involvement of other agencies such as the police, which may exacerbate rather than assist in sensitive situations.
Carers have also made representations to the Health Services Commissioner that while legislation does not require health service providers to seek information from carers about the person for whom they are caring, incentive should be developed for them to do so.
Understandably, consumer rights have usually taken precedence in the move to recognise carer responsibilities, but there have been recent general developments in this area, such as the ACT Carer Recognition Legislation Amendment Act 2006. Consideration should be given to the inclusion of standards to support and recognise better the important involvement of carers in the care and treatment of people with mental illness. Promoting the use of advance care planning and advance care directives by way of standards would be one such approach.
5. Use of advance care directives and care plans
Advance care planning and advance care directives provide an important mechanism for documenting consumer-centred treatment and care arrangements in advance of the onset of episodes of mental illness. In particular, they are an improved mechanism whereby an incompetent person's prior wishes about treatment options and the involvement of carers can be known and considered at the time that treatment decisions need to be made.
The National Standards could support the use of advance care planning and advance care directives to promote informed participation and decision making by consumers about their treatment and to ensure appropriate consents are in place for the involvement of carers.
6. Corrective service settings
The delivery of mental health services in corrective service settings requires particular attention. The National Statement of Principles for Forensic Mental Health establishes 13 principles for dealing with offenders or alleged offenders who have a mental illness. The National Statement was endorsed by the National Mental Health Working Group of the Australian Health Ministers' Advisory Council and was presented to the Correction Service Administrators Conference in May 2003. Commonwealth, State and Territory governments are working to develop approaches to implement the principles.
Regrettably, national data on the prevalence of mental illnesses in corrective service populations in Australia is not available. However, an indication is available from a 2003 study published by New South Wales Corrections Health:
· the twelve month prevalence of psychosis was thirty times higher than in the Australian community at large;
· 78 % of male and 90% of female reception prisoners were classified as having had a psychiatric disorder in the previous twelve months;
· 1 in 20 had attempted suicide;
· 46% of reception and 38% of sentenced inmates had suffered a mental illness in the previous year; and
· between 4% and 7% of reception inmates suffer a functional psychotic mental illness.[1]
If mental illness were not an issue for remandees and prisoners prior to their entry into a corrective service setting, remand and incarceration itself can have a deleterious effect. The loss of freedoms, social supports, inter-personal relationships, social status and continuity of health care can lead to depressive disorders. The physical environment in corrective service settings is not supportive of good mental health, particularly in circumstances where some corrective service settings hold remandees under 24-hour surveillance in forensic mental health cells.
These factors all point to the need for additional attention to be paid to setting standards for the delivery of mental health services in corrective service settings if people with mental illness are to receive quality mental health care, at least equal to that available to the general community given the government’s additional duty of care for detainees.