Application of rights analysis instrument to Australian mental health legislation
Indicator 8 - Procedural safeguards in mental health facilities
- The Northern Territory and New South Wales, followed by Victoria and Tasmania were assessed in the substantial quadrant for this Indicator. South Australia, the Australian Capital Territory and Western Australia were assessed in the significant quadrant.
- There was some confusion because of the wording in the UN Principles as to the breadth of the requirements in Indicator 8 - questions A and D refer to rights exercised generally by patients, whereas B and C seem to be limited to the review process. To avoid confusion, this should be clarified or Indicators 8B and C should be incorporated into Indicators 5 or 6.
- The National Panel considered that both the Northern Territory and Tasmania had the best legislative practice for Indicator 8A. They fully complied with the requirements to communicate patient rights. Most jurisdictions supplied such information in an understandable format to the patient as soon as possible after admission, but varied in the extent to which this information was given to other nominated persons who represented their interests.
- The National Panel considered that New South Wales had the best legislative practice for Indicators 8B and 8C. It fully complied with the requirements regarding entitlement to free legal representation and interpretation in proceedings. Other jurisdictions varied in the extent to which they allowed legal representation or interpretation, or merely did not prohibit it. One jurisdiction had the power to appoint legal representation and interpretation, together with notice of this latter fact. In another jurisdiction the tribunal must appoint a legal representative where a person is not represented unless it is not necessary in the circumstances. Free interpretation is provided "so far as is reasonably practicable" both in preparation for and the actual hearing. The Northern Territory had useful provisions that went beyond the requirements in the UN Principles. For the purposes of involuntary treatment, health service providers who are from the same non-English speaking background as the patient are to be used where possible. Treatment and care of a person of Aboriginal or Torres Strait Islander background is to be provided in collaboration with an Aboriginal health worker.
- Indicator 8D was one of the Indicators with the greatest extent of compliance with the UN Principles. The National Panel considered that the Northern Territory had the best legislative practice with its specific provisions in mental health legislation. The majority of other jurisdictions had freedom of information, medical records or privacy legislation containing the required rights to request information. Some jurisdictions did not contain the right to add comments to a file - however, the right to correct misleading information, or alter/amend records alleviated this.