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Community Affairs References Committee
19/09/2016
Indefinite detention of people with cognitive and psychiatric impairment in Australia

DOHERTY, Ms Margaret, Convenor, Mental Health Matters 2

McKINNEY, Ms Chelsea, Manager, Systemic Advocacy, Western Australian Association for Mental Health

[12:16]

CHAIR: Welcome. Can I just check that you have both been given information on parliamentary privilege and the protection of witnesses in evidence?

Ms Doherty : Yes.

Ms McKinney : Yes.

CHAIR: Thank you. I presume you would both like to make opening statements, and then we will ask you some questions.

Ms McKinney : I will not take too long. I understand we are not to reiterate our submission. I would just point out that WAAMH's submission focuses on the Criminal Law (Mentally Impaired Accused) Act—the CL(MIA) Act. I would like to acknowledge Developmental Disability WA, Mental Health Matters 2 and ALS. We are dismayed at this law and we are dismayed at the current government's review report into this law. The review report was released the day before we made our submission, so we were not able to include a comprehensive analysis of it.

CHAIR: Can I just say that if you do want to submit some more information we are very happy to take a supplementary submission on that particular aspect.

Ms McKinney : Fantastic. The review report that came out did make some positive recommendations, but some of the most alarming aspects of the law were recommended to be retained by the review. We are very concerned that the current review may result in some changes to the law but keep the most damaging aspects and the aspects that go most against human rights protections. For example, the review report recommended retaining indefinite custody orders, it recommended retaining mandatory custody orders for certain offences and in certain situations, it recommended retaining executive decision making and it did not recommend introducing a special hearing or a prima facie case to test the evidence against the accused.

The Attorney-General's Department is currently facilitating a working group to look into how to make some of the provisions in the law work better. I think it is really important to point out that the working group assumes the retention of mandatory custody orders and assumes the retention of indefinite custody orders. It merely asked the working group to consider how those aspects of the law might be made to work better, more fairly and more in keeping with the so-called therapeutic objectives of the act as well as the community safety concerns. I will end there.

CHAIR: Thank you.

Ms Doherty : Thank you for the opportunity to speak with you today about this really important issue. As convenor of Mental Health Matters 2, which is an unfunded volunteer systemic advocacy agency, I often hear the distressing experiences of family members—mainly of adults—who are caught in those gaps between mental health, drug and alcohol and criminal justice systems. To give voice to their concerns, I would just like to quickly make some points.

Firstly, on a human basis it is extremely difficult for individuals and families to maintain hopefulness in the face of indefinite detention. Yet we know that hope is a crucial ingredient in recovery from mental distress and is recognised as such in national and international literature.

Secondly, the situation that currently exists in Western Australia under the CL(MIA) Act leaves individuals held on custody orders and their families and friends extremely reluctant to speak publically about their individual situations in case it provokes negative repercussions such as further undue delays in decision making or negative outcomes around leave or release. So it is really hard to hear from their perspective.

Thirdly, although the CL(MIA) Act refers to a declared place as a possibility for detention, the government of Western Australia has never built a declared place for people with mental impairment relating to mental illness. There is now, thankfully, a disability justice centre. However, this is not available to people on custody orders for whom mental illness is their main diagnosis. These people languish in our overcrowded prisons, despite there being sufficient knowledge that prison is likely to exacerbate trauma for someone in this situation let alone in an overcrowded prison, where double-bunking is now the norm.

Finally, the ripple of trauma and distress, which indefinite detention creates in families as well as for the individual, is rarely acknowledged or understood and, therefore, there is little support available for these families. Nor is there, therefore, any capturing of their knowledge or expertise, which could have been used in the prevention of these situations. A robust review of the WA Criminal Law (Mentally Impaired Accused) Act which includes the voice and experience of individuals and their families affected needs to be progressed as a matter of urgency. Thank you

Senator DUNIAM: Both of you have mentioned either in written submissions or in opening statements the declared places side of things. I am interested to hear from both of you as to how things could be improved on that front. Other witnesses have talked about further declared places in various locations or declared places that can cater for a multiple number of cohorts from different backgrounds, culture, gender or whatever. I wonder what your views are on how best these people can be catered for in the state of WA?

Ms Doherty : I suppose the foundation is that there is not a declared place in Western Australia for people whose mental impairment is founded on mental illness. We have a forensic service, which is extremely underfunded in Western Australia. It opened in the mid-90s with approximately 30 beds. Even though the prison population has increased by 2½, it still has the same number of beds. So that is an obvious place that one could quickly and easily expand in order to provide some therapeutic healing and recovery for people, which we know is possible.

Senator DUNIAM: Would that be optimal, just adding beds on to the forensic service?

Ms Doherty : It would not be optimal but it would be something that could be done and it is something that is planned under the 10-year plan for mental health and drug and alcohol services. For me, the declared place is one issue. The issue that sits underneath it is how leave is given, because in order to be further in to the community, if you like, you have to have some kind of flexibility about that, and the governor being the person who actually makes the decision on leave at the moment is a real issue around that. So if we do not have that then we are talking about many places in the community where people still have a very strong barrier between them and the community.

The disability justice centre model is a good model. It is a robust model. But it is worth noting that every time there is a problem with a person in it, it is on the front page of our local media in a way that just exacerbates the stigma and the populist opinion around locking people up. So that is something that has to be addressed if we are going to have people embedded better in the community.

Ms McKinney : Following on from Margaret, we also support the declared place. We think it is a reasonable model. I think it does have its limitations, certainly in terms of cultural security and appropriateness for people who might have come down from the lands, for example. It is not necessarily the best option, although it is a better option than prison or hospital for many people. I think the challenges with the declared place lie in part in that it is one place and, ideally, there would be a range of services and treatment options not just one place which will only ever be appropriate to some people and will only ever really go part way towards their transition to community. One of the things we have put to the current Attorney-General's working group is around whether or not there should be a requirement in the legislation, or an option in the legislation, for the court or the supervising board to ask government agencies to provide a treatment, support or development plan. That is certainly something that we would be very supportive of seeing in the legislation itself.

There have historically been many problems with people being provided with treatment from or support from any agency other than the Department of Corrective Services. In recent years, that has improved with the Disability Services Commission coming to the party. Their hand was kind of forced. We are concerned that if it is not in the legislation, then it is subject to the government of the day deciding who should and to what extent the services and treatment should be provided. Similarly, there is advocacy: not all people under the act have access to independent advocacy. It depends on where you are residing at the time. People sometimes get transferred from hospital—where they have access to the Mental Health Advocacy Service—to prison, where they do not have access to an independent advocate with the same powers and then back to hospital.

Senator DUNIAM: So why is there that break? Is it just a siloed approach, for want of a better term, or the laws?

Ms McKinney : I think it is properly the siloed approach. The law is silent on it. It is, I guess, in the way that the service system has been developed. I am aware that in some jurisdictions there are some of those protections in the law or an option for a court to request to a treatment plan. In terms of the service system, we would like to see the expansion of forensic mental health facilities and we would like to see a declared place type option that is community based for people with mental illness. I think there is a real risk that it would be built on the grounds of the prison, and that was certainly proposed in a draft mental health services plan. There was advocacy which resulted in it being considered to be needed in the community. To sum up: independent advocacy, treatment, support or something planned and the full range of services that will support the transition to the community.

Senator DUNIAM: Thank you very much.

CHAIR: I just wanted to go back to the question about the CL(MIA) Act, the review and where we were up to. Have you had any discussions with the state government or any of the agencies about where to from here on that?

Ms McKinney : We have been quiet active in trying to get clarity from the Attorney-General and the disability and mental health ministers in terms of where the review will go from here. We have not had a clear answer. We have heard rumours that there was intended to be a bill in this term of government, although I think that that is quite unlikely given that we have got an election coming up in March. If there was a bill, we would be concerned about the time frame to be debate it. We have met with the working group. WAAMH, Developmental Disability WA and ALS met with the working group a couple of weeks ago. We were pleased to see the working group working hard to do what they could within their terms of reference, but we remain very concerned about the terms of reference assuming the continuation of mandatory and indefinite detention.

CHAIR: There has been some discussion—not an excessive amount this morning—around access to the NDIS. I am just wondering if either of you have had experience with any of the people you have been working with who have managed to get access. I know there is the My Way site and the Perth Hills site, so it has not been rolled out anywhere further yet; but have you had any experience where people have managed to access a package?

Ms McKinney : Not for people involved in the criminal justice system, no.

CHAIR: I should probably clarify that: is there anybody who you would think might be eligible? I can go away and say, 'No-one has been able to access it,' but it may be that you have not had any involvement with people who could potentially access that support.

Ms McKinney : I think the eligibility criteria for people with mental illness is quite restrictive. I do not know of any particular individuals. It seems to be needing to be a very case-by-case basis for people with mental illness or psychosocial disability in accessing the NDIS.

Ms Doherty : I think the complexity involved when someone in prison is trying to access something that is fairly new in trial sites is a significant issue. It requires real proactive penetration into the prison system, and I am not sure that that is occurring. Whereas family may be advocates where there are family involved who are in a position to do that, they do not have any authority within either of those two systems, so it makes it extremely difficult.

CHAIR: Senator Reynolds will know this or may have a better recollection, but I understand normally NDIS is not going to be available for people in prison; it is once they come out. However, it might be a grey area for those who are indefinitely detained who have not been convicted of a crime. If you have not had any experience, I think we are going to have to pursue that at a hearing when we are in Canberra.

Ms McKinney : I think it would be great to pursue it, given that these are unconvicted persons. Similar to the DSP issue from recent weeks, we would support access to that. The Mentally Impaired Accused Review Board has raised repeatedly in this state the challenges in pulling together a package of appropriate supports for people to enable them to transition out of hospital. If the NDIS were able to support that, I think from the board's perspective it would go some way to addressing some of their concerns about that.

CHAIR: Has there been any outreach from the NDIS or My Way to talk about these sorts of issues to either of your organisations?

Ms Doherty : No.

Ms McKinney : We have been engaged with the NDIS and we have not discussed this issue with them, but I think it is a great idea and we will. Certainly in Western Australia the two trials vary in terms of how well they engage with mental health consumers, families and services anyway. From my perspective it looks very clear that the systems are engaging more proactively with the disability system rather than the mental health system.

CHAIR: Both of them, did you say?

Ms McKinney : Yes.

Senator REYNOLDS: Is it your impression then that they are more engaging with the disability sector because maybe they understand it more and feel a bit more comfortable and they do not really know how to engage in the mental health sector in terms of not being really sure how to make it work?

Ms McKinney : Both agencies have certainly been receiving a lot of advice about how to engage appropriately with families, consumers and the mental health service systems. I imagine that some of the agencies are directing effort to where they are most likely to get the highest number of people accessing the system so that they can reach their targets. I am sure that that is one very pragmatic driver of their engagement. I think also just the complexity of the systems and the way that the rules are set out for the NDIS in terms of the siloed systems do make it hard for mental health consumers and families to access that. There are also problems with the notion of psychosocial disability and whether or not mental health consumers and families even identify with that term and would seek to access a disability system in the first place. There are also challenges about the permanency and the diagnostic issues. We could talk about that for a very long time.

Ms Doherty : If I could just add to what Chelsea said. From a really practical point of view I think the NDIS here has not been terribly skilled in knowing which target populations within the mental health area to access in terms of consumer and family engagement, so it has relied on them coming to the NDIS for information rather than actually seeking out the target population and making real inroads into that. For example, most of the families and individuals that we would have contact with know that there is an NDIS and know it has got something to do with disability but they do not actually see it as terribly relevant to them and yet they—and most of them are in the serious mental illness kind of bracket—would be the people who would be most likely to be eligible for a package. There is a disconnect between the two.

Senator REYNOLDS: I want to come back to Ms McKinney's response to my question. Is it a fact that there are too many and the advice going to the NDIS is uncoordinated? Is there one organisation or do mental health organisations speak with one voice?

I know, from the agency's perspective, if they have got different people coming in and giving them lots of advice—is it consistent advice? Do you know what I am saying?

Ms McKinney : Yes.

Senator REYNOLDS: Is it a bit disjointed?

Ms Doherty : Yes. I think that the mental health agencies here tend to have broadly very similar views about access to the NDIS, so there are certainly coordinated mechanisms to provide that input. I do not think that there is a lot of uncoordinated activity or advice that is in disagreement with the advice of other agencies. I was at a meeting a couple of weeks ago that was about people living in psychiatric hostels and their engagement with the NDIS. We know that some people who have been under this law have lived or will live in a psychiatric hostel at some stage, and the NDIA trial site—well, it is not a trial anymore—has been very active in engaging with the psychiatric hostels. So that is one mechanism by which they have been in engaging with potential consumers. However, in their expansion into the Toodyay and areas beyond the Perth Hills, they have been working very closely with Disability Services Commission. When I asked were they engaging with the Mental Health Commission, Department of Health and mental health NGOs, they said, 'Well, it would be great if you could ask them to contact us with people that might be eligible,' which we have done, but yes.

Senator REYNOLDS: This morning we heard from the Chief Justice and others that, in terms of the criminal justice system, there is a conflation of understanding between cognitive impairment conditions and mental health-psychosocial conditions, which causes, obviously, a lot of issues for people suffering from both in the criminal justice system. Do you see that in terms of the NDIS and mental health—that there is a good enough understanding of the difference between the two? Or has it not really been an issue?

Ms Doherty : I have not heard their understanding come up as an issue. I just have not seen their demonstrated skill and ability, as I said previously, to kind of penetrate the areas within the mental health sector for consumers and families that I would have expected them to have.

Senator PRATT: I have a brief question in relation to the way the law responds to what can be the episodic or treatable elements of mental health, particularly within the context of the CL(MIA) Act.

Ms Doherty : Could I just further clarify your question?

Senator PRATT: It is the differentiation between someone who may be permanently impaired and how treatable—permanent impairment should still be manageable and treatable in other therapeutic ways, but of course that can be different to other mental health issues, which can be treatable in terms of bringing someone back to no longer having that illness, for example.

Ms McKinney : The law does not mention treatment, support, recovery—any of those things. The law, from my point of view, is predicated on the basis that once a risk, always a risk, and obviously that is very concerning. Even the review report, when saying that there was insufficient evidence to recommend the end to indefinite custody orders—and I do not have it in front of me; I would be happy to send the relevant section of the report through to you—quoted a case from someone versus the Queen which was 30 years old, before we had forensic mental health principles, saying that, because that person has been a risk in the past, then we have to assume they are a risk in the future. We are very concerned that even the review report is still relying on this assumption of once a risk always a risk in terms of making its recommendations.

Ms Doherty : I think it is also—in terms of just responding to that—linked into various diagnoses. So schizophrenia, dangerousness—and a lot of the response is kind of predicated around that. I just found this this morning, so I did not have time, but this is the front page of The West Australian from October 2014, which ironically was on the first day of Mental Health Week here. It was a young man, Samuel Walsh, who was on a custody order—he was on release in a low-level risk environment, in a community hostel—and he went missing. But that is the response from our media as well—it is this whole idea that, if you have committed a dangerous act at some stage, you will always be at risk. And that man was never found.

Senator PRATT: As to the nature of your psychosis, there is an assumption that it will always have some kind of criminal motivation behind it, when, even if you remain psychotic, that element of it may or may not even be apparent.

Ms Doherty : And, ironically, there is very little thought given—in the area, certainly, of mental health—to what happened before, to what led up to this, in terms of examining. I know one clinician who suggested personally to me that anyone who ends up on a custody order should have absolute critical analysis done of what steps had been taken, because often families and individuals have taken many steps to try to get support for someone, leading up to the offence being committed, if in fact there was an offence committed or an alleged offence committed. And that support has not been forthcoming.

CHAIR: Thank you very much for your time today. It was very much appreciated. Did you want to send us a copy of that?

Ms Doherty : Sure.

Ms McKinney : Yes.

CHAIR: Thank you.