Professor Bernadette McSherry
Louis Waller Chair of Law, Monash University
Human Rights and Mental Health: The Gap Between Legislating and Implementing Human Rights
Paper delivered at the Castan Centre 'Human Rights 2005: Year in Review' conference on 2 December 2005
It was in the early 1990s, under the auspices of the Federal Labor government, that a human rights framework first came to the fore in relation to mental health in Australia. In 1991, the Federal government supported the UN Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care(i) and the Australian Human Rights and Equal Opportunity Commission began its inquiry into the human rights of people with mental illness. In 1992, the Commonwealth government released its Mental Health Statement of Rights and Responsibilities(ii) and its first National Mental Health Strategy.
Since then, while mental health laws have been reformed to comply with a human rights framework, a number of inquiries have indicated that there is still a pressing need for better accountability and for significantly more resources to support mental health services. Most importantly, the system of mandatory detention of ‘unlawful non-citizens’ in Australia has raised serious concerns about the lack of adequate mental health services for detainees.
This paper examines some of the major events of 2005 that point to the gap between legislating and implementing human rights in the mental health field. It considers the Report Not for Service which was released on 19th October 2005 and which provides a disturbing record of the inability of many individuals with mental illnesses to obtain access to adequate care.(iii) It also analyses how the wrongful detention of Cornelia Rau, an Australian resident of German origin with a history of mental illness, and the cases of two Iranian men, ‘S’ and ‘M’ highlight problems with the intersection between mental health services and mandatory immigration detention. The first part of the paper sets out the background to the human rights framework for mental health laws in Australia. It then outlines the findings of the Not for Service Report against a background of recent inquiries into the mental health system. The next section analyses the immigration detention cases and shows how they raise human rights concerns relating to the lack of mental health services for detainees. The final section provides a review of what can be learnt from the events of 2005 in the mental health field.
A HUMAN RIGHTS FRAMEWORK FOR MENTAL HEALTH
In 1991, Brian Burdekin, the then Human Rights and Equal Opportunity Commissioner for Australia, began a national inquiry into the human rights of people with mental illnesses. A two volume report (the Burdekin Report) was released in 1993 and made recommendations concerning changes to mental health law in Australia.(iv)
The Burdekin Report found that people affected by mental illness suffered from widespread systemic discrimination and were consistently denied the rights and services to which they were entitled. It found that the money saved by moving care from hospitals to the community had not been redirected into mental health and related services in the community. Health services which would enable people with a mental illness to live effectively in the community were found to be seriously under-funded or in some areas not available at all.
With respect to legislation, the Inquiry found that some jurisdictions had no clear statements of principles or objectives in their mental health acts. Other jurisdictions gave insufficient emphasis to the principle of ‘least restrictive alternative’ in the choice of care and treatment of people with severe mental illnesses. Further, most legislation did not define ‘mental illness’ in any adequate way, if at all.(v) The Report found that the criteria for involuntary admission and detention were too broad; police and medical practitioners were given too much discretion in detention decisions; review periods were too long and review processes inadequate or non-existent; there was a lack of procedural fairness in review hearings; there was no provision for compulsory treatment to take place in a community setting; and there were inadequate safeguards to protect the confidentiality of patients.(vi)
The National Mental Health Strategies
The First National Mental Health Plan
While the Burdekin Inquiry was taking place, the Commonwealth Government released its National Mental Health Strategy. The Health Ministers of the six States, two Territories and the Commonwealth governments endorsed the strategy in 1992 and agreed that it should run for five years until 1997.
The Strategy was outlined in four major documents: the National Mental Health Policy, the National Mental Health Plan, the Mental Health Statement of Rights and Responsibilities and the Medicare Agreements (the Medicare Agreements set out the State, Territory and Commonwealth roles in achieving the reforms and associated funding arrangements). The government provided in excess of $250 million to support the implementation of the Strategy.
The first National Mental Health Plan concentrated on reforming specialist mental health services, emphasising community based care, decreased reliance on institutional care and mainstreamed acute beds into general hospitals.(vii) Its major focus was on the low prevalence mental illnesses such as psychosis and bipolar disorder.
The Second National Mental Health Plan
The second National Mental Health Plan which was released in 1997 extended the work of the first plan and emphasised the prevention of mental illness, the development of cross sector partnerships in service reform and quality and effectiveness in service delivery. It extended its focus to include high prevalence disorders such as depression and anxiety disorders.(viii) The Government provided $328 million towards the carrying out of this five year plan.
The Third National Mental Health Plan
The third National Mental Health Plan which was released in 2003 and runs until 2008 focuses on service responsiveness, quality care, research, innovation and sustainability.(ix) The Plan states that there has been considerable development in emphasis in mental health care ‘from a focus on treatment to incorporating the entire spectrum of interventions, including mental health promotion, the prevention of mental health problems and mental illness, early intervention, and rehabilitation and recovery’.(x) The Plan refers to housing, education, welfare, justice and employment as important factors to be addressed in preventing the development of mental health problems and in promoting recovery from mental illness. The Plan asserts that mental health should be understood within a population health framework that ‘recognises the importance of mental health issues across the lifespan, from infancy to old age, and across diverse groups within the population’.(xi)
REFORMING LEGISLATION AND THE NOT FOR SERVICE REPORT
Since the Burdekin Report, a number of inquiries and reports have found that while legislation has been changed to comply with human rights principles, access to mental health care and follow-up post-hospitalisation need critical attention.
A ‘Rights Analysis Instrument’ was developed in 1996 for the purpose of assessing legislative compliance with international and national norms and standards and in particular with the United Nations Principles for the Protection of and for the Improvement of Mental Health Care.(xii) It consists of thirteen ‘indicators’, compliance against which can be measured as ‘substantial’, ‘significant’, ‘partial’ and ‘minimal’. During 1998 and 1999, five states and two territories applied the Instrument to their legislation. The state of Queensland declined as it was in the process of drafting a new Mental Health Act, but undertook to apply the Instrument once the legislation was in force.
In 2000, a Report found that there had been improvement in State and Territory mental health legislation both in terms of human rights protection and consistency across jurisdictions.(xiii) However, there were a number of problematic areas identified such as the lack of provisions dealing with the rights of voluntary patients, what the criteria should be for a ‘short’ period of time for involuntary detention, the lack of provisions re an obligation to inform patients of their rights and discrepancies with definitions of mental illness.(xiv)
The major drawback to the Instrument is that it only measures legislative provisions rather than administrative compliance with the legislation. There is still very much a gap between the legislation and the implementation of human rights in practice. The following inquiries bear this out.
After conducting a national review of the experiences of those who use and provide mental health services, the Mental Health Council of Australia concluded in 2003 that ‘current community-based systems fail to provide adequate services’.(xv) It pointed out that Australia spends approximately 7 per cent of its health budget on mental health, whereas other first world countries spend 10 to 14 per cent.(xvi)
In relation to human rights, the Council reported that the main concern was that of neglect rather than outright abuse.(xvii) That is, some participants in the review felt there was no real follow-up once discharged from hospital into the community and they were not treated as individuals with individual problems and needs, but lumped into a category of ‘people with mental illnesses’.(xviii)
On 19th October 2005, the Not for Service report was released. This was prepared by the Mental Health Council of Australia and the Brain and Mind Research Institute in association with the Human Rights and Equal Opportunity Commission. The Report is over a thousand pages long and its findings are based on data gathered via open community forums, individual meetings, written submissions and community surveys. The findings echo those of the 2003 Report. For example, the Report states:
It seems that, even where there has been good policy or law, the policy has not been translated into reliable, high quality health care…while stand-out programs can be identified, there is no clear evidence of a systemic commitment to improved access to quality care.(xix)
Some of the themes relating to the national mental health strategy are poor access to psychiatrists outside major metropolitan centres, poor access to psychologists due to a general lack of government or private insurance rebates and limited access to new medications in outpatient settings, partly because of restrictions on the provision of scripts under the Pharmaceutical Benefits Scheme.(xx) Themes that relate to state mental health services include the lack of acute care beds, premature discharge from hospitals of unwell persons and difficulties in getting access to professional care during onset and to prevent the deterioration of illness.(xxi)
The report also usefully measures the data collected against the National Standards for Mental Health Services which were endorsed by the National Mental Health Working Group in December 1996.(xxii) Standard 11.1 sets out that the relevant mental health service should be accessible to the defined community. The Report found that standard 11.1.4 which requires that the mental health service should be available on a 24 hour basis and standard 11.1.2 which requires that ‘[t]he community to be served is defined, its needs regularly identified and services are planned and delivered to meet those needs’ are not being met in many Australian states.(xxiii) Instead, because of ‘the inability of consumers and carers to access mental health services during times of crisis, police are increasingly being called to assist as they are available 24 hours a day 7 days a week’.(xxiv)
Another major finding in the Report was the poor state of forensic mental health services.(xxv) There is an urgent need to ensure prisoners with mental health problems be given access to assessment and treatment services. In its Summary of the Report, the Mental Health Council of Australia and the Brain and Mind Research Institute set out 29 recommendations for change.(xxvi) In relation to legal and human rights, these bodies recommend:
a) that all governments work to achieve the highest attainable standard of mental health care as required by the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child and apply the UN ‘Principles for the protection of persons with mental illness and the improvement of mental health care’;
b) that as a matter of urgency all jurisdictions develop nationally consistent guidelines on the assessment, sentencing and provision of mental health care (according to the NMHS) for mentally ill people in contact with the justice and/or detention systems; and
c) that all Australian jurisdictions provide specialised legal services, diversionary and reintegration programs for people with a mental illness in contact with the justice and/or detention systems.(xxvii)
The Not for Service Report paints a grim picture of the gap between legislating and implementing human rights in the mental health field. Despite reforms to legislation, it remains the case that many individuals with mental illnesses cannot get access to the ‘highest attainable standard of mental health care’.
THE INTERSECTION BETWEEN HUMAN RIGHTS, MENTAL HEALTH AND IMMIGRATION DETENTION
In 2005, a number of cases of wrongful detention and the lack of psychiatric treatment for those in immigration detention have put the spotlight once more on human rights and mental illness in Australia. Mandatory immigration detention was introduced into Australia by the Labor federal government in 1992 and still has bipartisan support. Under section 189(1) of the Migration Act 1958 (Cth) if an ‘officer’ – including an immigration official or state police officer – ‘knows or reasonably suspects’ that a person is an unlawful non-citizen, the officer ‘must detain the person’. Section 196(1) provides that an unlawful non-citizen detained under section 189(1) must be kept in immigration detention until removed from Australia, deported or granted a visa. This provision has led to individuals being detained for excessively long periods. Decisions by a majority of the High Court in 2004 meant that asylum seekers who cannot be returned to their country of origin can be kept in detention indefinitely.(xxviii) For example, the then 24 year old Peter Qasim arrived in Australia seeking asylum in 1998 and was kept at various immigration detention centres for a total of six years and ten months. He asserts that he is a Kashmiri who fled the region after becoming involved with the separatist Kashmir Liberation Front. He exhausted all legal appeals for asylum and because no country was prepared to accept him, he could only be freed at the Minister for Immigration’s discretion.
On 17 May 2005, he was assessed by a psychiatrist as being profoundly depressed and recommended immediate hospitalisation to stop him from harming himself. He was transferred from the Baxter Immigration Detention Centre to Glenside psychiatric hospital in Adelaide and on 17 July 2005, the Minister finally granted him a special bridging visa to enable him to live in the community.
It has been strongly argued that Australia’s mandatory immigration detention system violates the International Covenant on Civil and Political Rights and the Convention Relating to the Status of Refugees.(xxix) That is beyond the scope of this paper, but there is increasing evidence that the provision of mental health services is inadequate for detainees. The following two cases demonstrate the necessity for detainees to obtain the care they deserve.
The Case of Cornelia Rau
It was in early 2005, that the case of Cornelia Rau galvanised concerns about the detention of and lack of treatment of those with mental illness.(xxx) Cornelia Rau is a 39 year old permanent Australian resident of German background who has lived in Australia since she was 18 months old. She has a history of mental illness. She was first hospitalised in 1998 for three months and subsequently suffered a number of episodes that required hospitalisation. In December 2003, her family reported her to the police as a missing person. Her diagnosis appears to have varied between bipolar disorder and schizophrenia.
In March 2004, Cornelia absconded from Manly Hospital in Sydney where she was being treated for schizophrenia just prior to a Mental Health Review Tribunal hearing as to her involuntary status. After making her way to North Queensland, she was reported to police by members of an aboriginal community concerned about her welfare.
When questioned by police, Cornelia apparently claimed to be a German tourist and gave several names and dates of birth and conflicting accounts of why she was in Australia. She was reported to the immigration authorities and, because there is no immigration detention facility in Queensland, was detained in the Brisbane Women’s Correctional Centre. She was kept there for six months with the general prison population because this Centre does not have a separate area in which to house immigration detainees. She was treated as though she was a prisoner and placed in a confinement cell when she was found to have breached disciplinary provisions under the Corrective Services Act 2000 (Qld). In August, Cornelia spent a week in Brisbane’s Princess Alexandra Hospital for a mental health assessment, but was returned to the correctional centre. That month, her family reported her missing.
In October 2004, Cornelia Rau was transferred to the Baxter Detention Centre in South Australia. The Baxter Detention Facility is located 10 kilometres from the city of Port Augusta in South Australia on land that has previously been used by the Army as a training camp. It contains nine separate, self-contained and secure residential compounds. The ‘Red 1’ compound is used for ‘behavioural modifications purposes’. There is also a Management Compound that has 10 accommodation rooms which allow for 24 hour observation of detainees classed as having severe behavioural problems. Transfer to the management unit occurs at the direction of the General Manager when it is necessary to maintain the good order and security of the facility. In November, Cornelia spent two periods in isolation in the Management Compound, the first time for four days and the second time for eight days.
Finally in February 2005, Cornelia’s family recognised her from a report in the Sydney Morning Herald. She was released from immigration detention and moved to Glenside Psychiatric Hospital near Adelaide.
This case resulted in an uproar in the media about wrongful detention of Australian residents and highlighted concerns with how an individual with a history of mental illness could be detained for ten months without a proper diagnosis and treatment.
On 8 February 2005, the Commonwealth Government set up an Inquiry into the detention of Cornelia Rau headed by former Federal Police Commissioner Mick Palmer. This was established as a ‘private’ inquiry. Mr Palmer was not given the powers of a judicial officer and thus could not compel anyone to talk to him, nor could he subpoena documents. Those who offered to talk were given none of the protections against sacking or prosecution that is available to witnesses in Royal Commissions. It was therefore unsurprising that a dozen Queensland prison officers refused to co-operate.(xxxi)
Initially, the government asked Mr Palmer to complete his inquiries within six weeks. The terms of reference were later expanded to cover the wrongful deportation of Vivian Alvarez (discussed below) and more than 200 cases of possible wrongful immigration detention. After some delays, the Report of the Palmer Inquiry was released by the Minister for Immigration, Senator Amanda Vanstone, on the 6 July 2005.
The Report points out in relation to Cornelia Rau’s detention that there ‘is no automatic process of review sufficient to provide confidence to the Government, to the Secretary of [the Department of Immigration and Multicultural and Indigenous Affairs] or to the public that the power to detain a person…is being exercised lawfully, justifiably and with integrity.’(xxxii) The Report also refers to the ‘excessively long time’ Cornelia was detained ‘simply for administrative convenience’,(xxxiii) and notes that those in detention require ‘a much higher level of mental health care than the Australian community’.(xxxiv)
The former Victorian Police Commissioner, Neil Comrie took up the inquiry into the deportation of Vivian Alvarez and on the 6th October 2005, the Commonwealth Ombudsman, Professor John MacMillan published a report based on that inquiry.(xxxv) Vivian Alvarez came to the attention of Immigration officials on the 2nd April 2001 when a social worker informed them that a physically injured and apparently destitute woman from the Philippines was wandering around the streets. She was admitted to the Richmond Clinic, the psychiatric unit of Lismore Base Hospital. It has been speculated that her injuries were the result of a car accident that affected her ability to explain who she was. She claimed to have come to Australia on a spousal visa, but immigration officials seem to have formed the view that she must have been brought to Australia as a sex slave. She had been reported missing to the Queensland Police under the name Vivian Solon or Young with a note of the same date of birth she had given immigration officials.
Vivian remained in hospital until a week before she was deported to the Philippines on 20 July 2001. Vivian was discharged suffering from severe back problems that necessitated her walking with a 4 wheel walker. It was discovered in 2003 that Vivian could have been wrongfully deported when an immigration officer recognised her from a missing persons report. Her family was not informed of the discovery and it was only in April 2005 that the Australian Federal Police began a search for Vivian in the Philippines. An Australian Catholic priest Father Mike Duffin watched reports about the search and identified Vivian as a woman brought to the Mother Teresa Sisters’ Mission in the city of Olongapao by Australian representatives four years previously. The Mission is for the destitute and dying.
The Ombudsman’s Report found that the initial decision to detain Vivian as an unlawful non-citizen was not based on the requisite ‘reasonable suspicion’ criteria as the relevant inquiries were not timely or thorough and her serious physical and mental health problems received insufficient attention.(xxxvi) The Report states that Vivian’s unlawful removal to the Philippines was a result of systemic failures in the Department of Immigration(xxxvii) and the failure of three senior officers to take action after they had discovered the mistake could consitute a breach of the Australian Public Service Code of Conduct.(xxxviii) The Department’s management of the matter is described as ‘catastrophic’.(xxxix)
The Minister for Immigration, Senator Amanda Vanstone has stated that the government accepts the thrust of the findings and recommendations of these two Reports.(xl) She has promised that the government ‘will provide ex gratia assistance, including health support, to both Ms Rau and Ms Solon to enable them to re-establish themselves in the community’(xli) and that the role of the Commonwealth Ombudsman in relation to immigration and detention matters will be strengthened.
The Cases of ‘S’ and ‘M’
The ten month detention of Cornelia Rau raises a number of issues concerning the way in which those suspected of being unlawful non-citizens are treated in detention facilities. The most significant case to date as to the Commonwealth’s duty of care to immigration detainees is that of S v Secretary, Department of Immigration Multicultural and Indigenous Affairs(xlii) which was heard by Justice Paul Finn of the Federal Court of Australia.
Two Iranian men, known only as ‘S’ and ‘M’ who had both been detained in various detention centres for about five years, applied to the Federal Court for an order compelling their assessment for admission to a mental health facility in Adelaide. After S had given evidence during the hearing of the application, a doctor assessed him and made an order for his transfer under the Mental Health Act 1993 (SA). Shortly prior to the delivery of Finn J’s judgment, M was also transferred to a mental health facility. Accordingly, Finn J did not have to grant relief for the men’s applications, but he stated that he would have made the orders sought and then gave detailed reasons why the applications were properly made. He also ordered that the applicants’ costs be paid for by the Commonwealth government.
Justice Finn found that the Commonwealth had breached its duty to ensure that reasonable care was taken of S and M in detention in relation to the treatment of their respective mental health problems. This was attributable to the systematic defects in the manner in which mental health services were provided at the Baxter Detention centre in South Australia.
The Commonwealth government has outsourced the day to day operation of Baxter to a company called GSL (Australia) Pty. Ltd. GSL in turn contracted its obligation to provide health care services to two companies, Professional Support Services which provides psychological services including a full time psychologist who is on duty week days from 9 am to 5 pm and a full time counsellor and International Medical Health Services which provides general medical services. The latter contracted with a Port Augusta Medical practice to provide general medical services and a psychiatrist, Dr Andrew Frukacz, a private practitioner from Bathurst in New South Wales. Dr Frukacz agreed to visit once every six to eight weeks on Saturdays. At the time of the hearing, there were 326 detainees in Baxter, with a third being long term detainee asylum seekers, between 20 and 30 of whom were seen by Dr Frukacz.
S had committed acts of self-harm on a number of occasions, including cutting his arms and chest with a razor and cutting his head by putting it into a window. After the latter incident, he was taken to the Management Unit for over a week. In April 2004, he was placed in the Management Unit for a week, and was then put in Red One for about two months. He described this as ‘terrifying’.
Towards the end of 2004, S found out that his plans to get married in Baxter had fallen through. He became very distressed and tried to cut his neck. In December, he took part in a hunger strike with ‘M’ and another man. The three men stayed on top of the roof of the gymnasium for nine days which caused them all to suffer from dehydration and severe sunburn.
On the 30 December 2004, S was seen by a psychiatrist who was voluntarily attending Baxter to prepare reports for immigration lawyers. This was the first time S had been psychiatrically assessed during his year at Baxter. The psychiatrist wrote: ‘because of the severity of his condition, he needs further psychiatric treatment, probably in an inpatient facility. He also needs a thorough medical review.’
On the 12 and 13 February 2005, S was reviewed by the psychiatrist contracted to Baxter who diagnosed him with severe depression and put him on antidepressant medication. He raised the possibility of electro convulsive therapy which would have to be administered at a psychiatric facility, but was not prepared to recommend transfer at that stage.
On 29 March 2005, S was assessed by another psychiatrist for the purpose of legal proceedings who diagnosed S with severe depression with anxiety symptoms. He stated that S needed to be transferred as the current state of his illness needed review by a psychiatrist on a daily basis.
M, like S, had spent about five years in detention. He was placed in the Management Unit on one occasion where he was assaulted. Several guards were later dismissed because of this incident. He took part in the roof top hunger strike along with S and another man in December 2004. M was assessed by a general practitioner who voluntarily attended Baxter after the hunger strike and was diagnosed as being profoundly depressed and as requiring care in a psychiatric facility. This was not acted upon.
M saw the psychiatrist contracted to Baxter for the first time on 12 February 2005. The psychiatrist was of the opinion that M was ‘significantly depressed and…anxious with feelings of despair largely related to his fear of deportation.’ He prescribed medication, but was of the opinion that M did not need to be transferred to a psychiatric facility. However, he went on to note that the conditions of detention were contributing to M’s depression and anxiety and that the medical treatment ‘will only have a partial affect [sic] on his condition’.
M was seen by another psychiatrist on 29 March 2005 for the purpose of legal proceedings. This psychiatrist agreed that while M remained in detention, he was likely to remain depressed and his demoralisation and despair were likely to increase. Transfer to a psychiatric facility was recommended.
Justice Finn found that there was an inadequate level of provision of psychiatric services at Baxter and the failure to provide psychiatric care to both applicants in December 2004 after the roof top protest was in breach of the Commonwealth’s duty to take reasonable care of the detainees. In relation to S, Justice Finn held that his mental health needs were not only not being met, but that he was being treated with neglect and disregard. He found that M’s difficulty in accessing reasonable mental health care services was not as striking as S’s, but that the condition from late December 2004 was treated with neglect. He found that the applicants ‘did not have to settle for a lesser standard of mental health because they were in immigration detention’.(xliii)
In relation to the outsourcing arrangement in relation to medical services, Justice Finn remarked:
The Commonwealth entered into a complex outsourcing arrangement for the provision of mental health services which left it to contractors and subcontractors to determine the level of services to be supplied. The hallmarks of these arrangements were devolution and fragmentation of actual service provision. The service provision was so structured that there was a clear and obvious needs [sic] for regular and systematic auditing of the psychological and psychiatric services provided if the Commonwealth was to inform itself appropriately as to the adequacy and effectiveness of these services for which it bore responsibility. There has to date been no such audit.(xliv)
In Justice Finn’s opinion, the Commonwealth’s duty of care to S and M was not delegable on the basis of the complex outsourcing arrangements. Rather, the Commonwealth itself had the responsibility to ensure the provision of medical services was adequate and effective. It is significant that in the current part-heard case of Shayan Badraie which involves an action in negligence on behalf of a child against the Commonwealth Government and the operators of Woomera and Villawood Detention Centres, the Commonwealth government has conceded that it has a non-delegable duty of care to immigration detainees. What is in dispute is whether the government is in breach of this duty.(xlv)
Some changes to immigration detention have been brought about in response to a threatened private members’ bill proposed by government backbencher, Petro Giorgiou and others which sought to close down detention centres. After negotiations, the government offered some compromises, allowing Senator Vanstone discretion to offer special visas. There are no signs, however, that the government will change its mandatory detention policy.
Other changes have been made to the detention of unlawful non-citizens in prisons. On 25 May 2005, Senator Vanstone announced she had previously ordered a ‘28 day limit - in all but exceptional circumstances - on the time immigration detainees can be held in prison’.(xlvi) What those exceptional circumstances are have not been defined. She also stated that a psychiatrist would be attending Baxter Detention Centre once every two weeks and that two psychiatric nursing positions have been established.(xlvii) On the 19th September 2005, Senator Vanstone announced that a mental health team would be ‘proactively screening detainees to identify any mental health concerns’ at Baxter Detention Centre.(xlviii) Whether that will be enough to attend to the mental health needs of those in Baxter is of course questionable, given the psychiatric vulnerability of immigration detainees.
On the 6th October 2005, Senator Vanstone also announced that $230 million would be provided over five years for a ‘broad range of initiatives to improve training, provide better health and wellbeing to immigration detainees, much better records management, decision quality assurance, and a much stronger focus on clients’.(xlix)
There is currently a Senate Inquiry into Mental Health issues taking place with Senator Lyn Allison, the leader of the Australian Democrats as its Chair. It was due to report by 6 October 2005, but because of the number of submissions, the report has been postponed until March 2006.(l) The problem here of course is that there have already been numerous enquiries that identify widespread dissatisfaction with the quality of services provided. In a letter to The Age newspaper, John Halloran summed this up:
I am sick and tired of hearing about the struggling mental health system – not enough money, not enough beds and so on. Having had 20-plus years in dealing with the system as a carer, I know about it first-hand. Each government blames each other, and millions of dollars are poured into the system. A large part of this money is spent on reports, yet nothing seems to be done. Instead the reports end up on shelves, gathering dust.(li)
The Not for Service Report outlined above highlights the need for vigilance in relation to mental health and human rights in Australia. The Mental Health Council of Australia and the Human Rights and Equal Opportunity Commission have called for the establishment of a Mental Health Commission to contribute to policy development, monitoring and accountability. Such a body was established in New Zealand as a ministerial committee under Section 46 of the Health and Disability Services Act 1993. It began work in September 1996 and its main aim is to ensure the implementation of the national mental health strategy by monitoring and reporting on the performance of key agencies.(lii) Thus far, however, there is no support for the establishment of such a Commission by the Australian Federal government.
The Federal government in its 2004 election policy said that it would invest $110 million over four years to support the delivery of mental health services, particularly in the areas of assisting general practitioners to give greater time to those with mental illnesses, early intervention in relation to youth mental health and tackling depression.(liii) It is essential that any injection of money into the system is targeted toward areas of need such as encouraging the training of specialist nurses and providing adequate services to rural areas.
One further observation is that the human rights framework may need to shift away from the 1990s focus on ensuring adequate standards and procedures for involuntary admission to the right to access adequate mental health services. Article 12 of the International Covenant on Economic, Social and Cultural Rights requires governments to recognize ‘the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’.(liv) Principle 1 of the UN Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care also sets out the right to the ‘best available mental health care’.(lv) Academics such as Lawrence Gostin are exploring the right to access health care in relation to mental health issues and this approach may serve to pave the way for lessening the gap between legislating and implementing human rights in the future.(lvi)
The emphasis on human rights that emerged in the 1990s in Australia has led to the revision of mental health laws, but there is still a pressing need for better accountability and for significantly more resources to support mental health services. While there may not be many clear instances of the abuse of human rights as in other countries, there is certainly evidence of the neglect of human rights through the lack of adequate funding for community mental health services and follow up post-hospitalisation.
The Cornelia Rau, Vivian Alvarez and ‘S’ and ‘M’ cases have focused attention on the lack of adequate mental health services for immigration detainees. The Palmer Inquiry, even with its limited powers of investigation, has made numerous recommendations about changing the culture of the Department of Immigration and Multicultural and Indigenous Affairs and addressing the mental health needs of those in detention. Mental health is at least on the agenda, but whether appropriate reforms will follow remains to be seen.
i Adopted by General Assembly resolution 46/119 of 17 December 1991. Available at <http://www.unhchr.ch/html/menu3/b/68.htm> at 2 December 2005. These have not been formally incorporated into Australian domestic legislation.
ii Commonwealth Department of Health and Ageing, The Mental Health Statement of Rights and Responsibilities.1991. Available at <http://www.health.gov.au/internet/wcms/publishing.nsf/Content/mentalhealth-mhinfo-standards-nsrr.htm/$FILE/nsrr1.pdf> at 2 December 2005.
iii Mental Health Council of Australia, Brain and Mind Research Institute, Human Rights and Equal Opportunity Commission, Not for Service: Experiences of Injustice and Despair in Mental Health Care in Australia (Canberra: Mental Health Council of Australia, 2005). Available at <http://www.mhca.org.au/notforservice/> at 2 December 2005.
iv B Burdekin, Human Rights and Mental Illness: the Report of the National Inquiry into the Human Rights of People with Mental Illness. Volumes I and II, (Canberra: Australian Government Printing Service, 1993).
v Ibid at 896.
vi Ibid at 897 - 906.
vii Australian Health Ministers, National Mental Health Plan, Canberra: Australian Government Publishing Service, 1992. The National Mental Health Policy is available at <http://www.seniors.gov.au./internet/wcms/publishing.nsf/Content/mentalhealth-mhinfo-standards-nmhp.htm/$FILE/nmhp.pdf> at 2 December 2005. The first National Mental Health Plan is no longer available electronically.
viii Australian Health Ministers, Second National Mental Health Plan (Canberra: Mental Health Branch, Commonwealth Department of Health and Family Services, 1998). Available at <http://www.health.gov.au/internet/wcms/publishing.nsf/Content/mentalhealth-mhinfo-nmhs-plan2.htm/$FILE/plan2.pdf> at 2 December 2005.
ix Australian Health Ministers, National Mental Health Plan 2003-2008 (Canberra: Australian Government, July 2003). Available at <http://www.seniors.gov.au./internet/wcms/Publishing.nsf/Content/mental-pubs/$FILE/nmhp0308.pdf> at 2 December 2005.
x Ibid at 7.
xi Ibid at 9.
xii H Watchirs and H Heesom, Human Rights Branch, Attorney-General’s Department, Canberra, Report on a Rights Analysis Instrument for Use in Evaluating Mental health Legislation, prepared for the Australian Health Ministers’ Advisory Council National Mental Health Working Group, December 1996, p 25.
xiii H Watchirs, National Rights Analysis Instrument Assessment Panel, Report to the Australian Health Ministers’ Advisory Council National Mental Health Working Group, Application of Rights Analysis Instrument to Australian Mental Health Legislation (2000).
xiv Ibid at 3-5.
xv Mental Health Council of Australia. Out of Hospital, Out of Mind. April 2003, p 1.
xvi Ibid, p 3.
xvii Ibid, p 21.
xix Mental Health Council of Australia, Brain and Mind Research Institute, Human Rights and Equal Opportunity Commission, Not for Service: Experiences of Injustice and Despair in Mental Health Care in Australia (Canberra: Mental Health Council of Australia, 2005). <http://www.mhca.org.au/notforservice/> at 2 December 2005, p 38.
xx Ibid, p. 45.
xxi Ibid, p. 46.
xxii Australian Health Ministers Advisory Council, National Mental Health Working Group, National Standards for Mental Health Services (December 1996). Available at <http://www.mhca.org.au/Resources/NoCCS/documents/NationalMentalHealthStandards.pdf at 2 December 2005.
xxiii E.g. Not for Service, p 498 (dealing with Queensland).
xxiv Ibid, p. 499 (dealing with Queensland). See also p 833 for a national overview.
xxv Ibid, p 46.
xxvi Not for Service Summary to the report, pp 15-16.
xxvii Ibid, p. 16.
xxviii Al-Kateb v Godwin (2004) 208 ALR 124; Minister for Immigration and Multicultural Affairs v Al Khafari (2004) 208 ALR 201.
xxix Amnesty International Report, Australia: A Continuing Shame: The Mandatory Detention of Asylum Seekers: (June 1998); Amnesty International Australia, The Impact of Indefinite Detention: The Case to Change Australia’s Mandatory Detention Regime Preliminary Report, 23 March 2005; P Kermani, ‘Not at Home: The Dilemma of Detained Asylum Seekers’ (2005) 79(7) Law Institute Journal 54-57.
xxx For an excellent investigative report as to Cornelia Rau’s background, including her involvement with the Kenja sect, see Robert Manne, ‘The Unknown Story of Cornelia Rau’, The Monthly, Issue 5, September 2005. The facts set out in this paper are derived from M J Palmer, Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau, Report, (July 2005).
xxxi David Marr, ‘The Lady Vanishes’ The Age 23 June 2005, p 15.
xxxii M J Palmer, Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau, Report (July 2005), viii.
xxxiii Ibid, x.
xxxiv Ibid, xii.
xxxv Commonwealth Ombudsman, Inquiry Into the Circumstances of the Vivian Alvarez Matter (Canberra, Commonwealth Ombudsman, September, 2005). Available at http://www.comb.gov.au/publications_information/Special_Reports/2005/alvarez_report03.pdf> at 2 December 2005.
xxxvi Ibid, p. xi.
xxxvii Ibid, p. xiii.
xxxviii Ibid, p. xiv.
xxxix Ibid, p. xv.
xl Senator Amanda Vanstone, Media Release 87.05, ‘Report of Palmer Inquiry into Cornelia Rau Matter’ 14 July 2005. Available at: <http://www.vanstone.com.au/default.asp?Menu=87.05> at 2 December 2005; Senator Amanda Vanstone, Media Release, ‘Palmer Implementation Plan and Comrie Report’ 6 October 2005. Available at <http://www.minister.immi.gov.au/media_releases/media05/v05119.htm> at 2 December 2005.
xli Senator Amanda Vanstone, Media Release 87.05, ‘Report of Palmer Inquiry into Cornelia Rau Matter’ 14 July 2005. Available at: <http://www.vanstone.com.au/default.asp?Menu=87.05> at 2 December 2005.
xlii (2005) 216 ALR 252.
xliii Ibid, p 305.
xlv Shayan Badraie by his Tutor Mohammad Badraie v The Commonwealth of Australia (by the Department of Immigration and Multicultural and Indigenous Affairs) and 2 ors, Johnson J, The Supreme Court of New South Wales Common Law Division, currently part-heard.
xlvi Senator Amanda Vanstone, Media Release 64.05, ‘Ministerial Statement to Senate Estimates Committee’ 25 May 2005; available at <http://www.vanstone.com.au/default.asp?Menu=64.05> at 2 December 2005.
xlviii Senator Amanda Vanstone, Minister Announces Action Plan for Baxter, Media Release, 19 September 2005. Available at <http://www.minister.immi.gov.au/media_releases/media05/v05114.htm> at 2 December 2005.
xlix Senator Amanda Vanstone, Palmer Implementation Plan and Comrie Report, Media Release, 6 October 2005. Available at <http://www.minister.immi.gov.au/media_releases/media05/v05119.htm> at 2 December 2005.
l See: <http://www.democrats.org.au/campaigns/mental_health_inquiry> at 2 December 2005.
li John Halloran, ‘A Stuffed-Up System’ The Age Letters page, 21 June 2005.
lii The Mental Health Commission website is available at <http://www.mhc.govt.nz/pages/about.htm> at 2 December 2005.
liii See: <http://www.liberal.org.au/2004_policy/Sept29_Mental_Health.pdf> at 2 December 2005.
liv International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, Art 12(1), 993 U.N.T.S. at 8.
lv Adopted by General Assembly resolution 46/119 of 17 December 1991;  45 U.N.Y.B. at 621. Available at <http://www.unhchr.ch/html/menu3/b/68.htm> at 2 December 2005.
lvi See, for example, Lawrence Gostin, ‘Beyond Moral Claims: A Human Rights Approach in Mental Health’ (2001) 10 Cambridge Quarterly of Healthcare Ethics 264-274; Lawrence O Gostin and Lance Gable, ‘The Human Rights of Persons with Mental Disabilities: A Global Perspective on the Application of Human Rights Principles to Mental Health’ (2005) 63 Md. L Rev 20.