Citizens Commission on Human Rights

The Mental Health Watchdog

Australian National Office

Restraint and Electroshock Legal for Children in NSW Mental Health Act

Parental Consent Not Needed.

In June 2021, The World Health Organization (WHO) released guidelines that lashed out against coercive psychiatric practices such as restraint, seclusion, forced electroshock and forced detainment and treatment, that it says “are pervasive and are increasingly used in services in countries around the world, despite the lack of evidence that they offer any benefits, and the significant evidence that they lead to physical and psychological harm and even death.”

The WHO highlighted the fact that coercive practices occur because “they are mandated in the national [or state] laws of countries.” Despite the challenges to changing laws and treatment paradigms, WHO says “it is important for countries…to eliminate practices that restrict the right to legal capacity, such as involuntary admission and treatment.” Coercive psychiatric practices continue to be rife in NSW.1

Click here to download the summary
Click here to download and sign a petition calling for a ban on electroshock of NSW children

ELECTROSHOCK OF NSW CHILDREN: It is appalling that the current NSW Mental Health Act allows for children to be electroshocked (ECT) – the brutal application of hundreds of volts of electricity to the head potentially causing brain damage, memory loss and sometimes death. There are no bans to prevent its use on children in NSW.

In NSW an involuntarily detained child can be given electroshock without parental consent required at any stage of the approval process including at a Tribunal who give final approval. There were 6,772 Medicare funded electroshocks given in NSW in 2021/22; 705 of these were given to people in the age bracket 0-24, of which a staggering 93% were females. In 2018, there were 156 electroshocks given to teens aged 15-19 years old and in 2020/21 there were 3 children under 16 given electroshock. In 2021/22, there were 804 Tribunal Hearings to consider application of forced electroshock to involuntary patients, 90% of which were approved. The hearings included 5 applications to give ECT to girls under 16, three of which were approved.2 ECT must be banned for all ages including children, the elderly and pregnant women. [s89, s94, s96 of NSW Mental Health Act 2007 (NSW MHA)]

restraint_for_shockRESTRAINT AND SECLUSION OF NSW CHILDREN: The current Mental Health Act does not cover and provide protections against the use of mechanical restraint (the use of belts, harnesses, manacles, straps, etc.) and chemical restraint (the use of psychiatric drugs to subdue and control) or seclusion, leaving these traumatic and abusive procedures in place without legal safeguards. The Act allows for the use of reasonable force and the administration of sedatives while transporting someone to a mental health facility, which could constitute chemical and physical restraint. Instead of legal protections covered by law, restraint usage is covered under a NSW Health Policy Directive, compliance of which is a condition of subsidy for public health organisations; private facilities do not have to follow the Directive and are expected to have policies in place.3 In 2018 a plan to reduce restraint was also implemented and public health organisations are expected also to implement this plan.4 In 2021/22, the were 10,851 seclusion events and 1,522 mechanical restraint events in public hospital acute mental health facilities across Australia. The average duration of a seclusion in NSW was 10 hours, the longest of any state or territory Australia.5 Psychiatric chemical, mechanical and physical restraint must be prohibited including for use on children, pregnant women and the elderly, with criminal fines and prison terms imposed for their use. [s94, s96 of NSW Mental Health Act 2007 (NSW MHA)].

STERILISATION (Special Medical Treatment): Can be performed on involuntarily detained patients over the age of 16. Consent is not required from the patient or their carer. A psychiatrist applies to the Mental Health Review Tribunal to have the sterilisation performed. It is a gross human rights violation to enforce an irreversible medical procedure such as sterilisation. Sterilisation should be completely removed from the Mental Health Act. [s98, s103 of NSW MHA & Mental Health Review Tribunal Civil Hearing Kit: Surgery or Medical Treatment, p.5]

CHILDREN IN WARDS WITH ADULTS AND SEXUAL ABUSE: The law does not rule out children being held in wards with adults. Not having legal protections that prevent children from being exposed to such an environment leaves them open to physical and sexual abuse in an environment where there is insufficient supervision. Also there is no mandatory reporting of sexual abuse or criminal fines in place to ensure reporting of alleged sexual assault of patients. The law must be amended to ensure children are not placed in wards with adults and to ensure mandatory reporting of alleged sexual abuse to the police.

INFORMED CONSENT DENIED: The Act provides “Principles for Care and Treatment” [s68] which outline 10 points of care, including that patients should be provided with information about treatments, alternatives, the effects of treatment and informed of their legal rights. However, another clause [s195] states that these principles, including informed consent, are not a “right or entitlement enforceable at law.” All fundamental patient rights should be enforceable by law.

A sad boy looking out through a window.CHILDREN CAN BE INVOLUNTARY DETAINED AND TREATED WITHOUT PARENTAL CONSENT: A staggering 11,319 NSW people were detained at a mental health facility involuntarily in 2021/22. The law allows for children to be involuntarily detained and treated without parental consent. Parents are not able to discharge their involuntarily detained child and parental consent is not needed for further detainment or treatment including psychiatric drugs, restraint, seclusion and electroshock. While this situation is abhorrent enough, parents who wish to appeal to a Tribunal to have their child discharged have no guarantee that an appeal will result in the child allowed to return home. Of the 5,667 initial involuntary treatment detainments the Tribunal reviewed in 2021/22, only 57 (1%) were discharged. A total of 896 hearings resulted in a legal order to receive drugs/treatment at home while 578 were withdrawn or adjourned or the Tribunal declined to deal with the matter or it was not in their jurisdiction.6 No child should be treated without parental consent. The World Health Organisation’s instructions to eliminate Involuntary admission and treatment must be implemented for all ages. [s12, s13, s14, s15, s34, s35, s84, s89, s94 of NSW MHA]

CRUELTY TO AN ANIMAL CARRIES AN 8 TIMES GREATER MONETARY FINE AND LONGER JAIL TERM THAN ILL-TREATING A PSYCHIATRIC PATIENT: Under the NSW Prevention of Cruelty to Animals Act, if someone is cruel to an animal it carries a maximum penalty of $44,000 or imprisonment for 1 year or both. Yet in stark contrast, if a psychiatrist or mental health worker ill-treats a psychiatric patient it carries a penalty of only $5,500 or imprisonment for 6 months or both under the current NSW Mental Health Act–significantly less than the penalty for being cruel to an animal.7

DEATHS, COMPLAINTS and ACCOUNTABILITY: The budget for mental health in NSW reached a staggering $2.9 billion in 2022/23, up more than 52% since 2017/18.8 This huge increase in budget is in spite of the Productivity Commission’s Report on Government Services 2023 reveals that that results in NSW were appalling in 2020-21:

  • 35% of children aged 0-17, discharged from a psychiatric ward/facility had not significantly improved.
  • 48.3% of children aged 0-17 discharged from community based care did not significantly improve.
  • 65.3% of children aged 0-17 in ongoing outpatient community based care had not significantly improved.
  • NSW had the second highest re-admission rate to a psychiatric hospital/ward for 65-74 year olds and 75+ year olds in Australia.9

Between 2011/12 and 2021/22, the NSW Health Care Complaints Commission reported complaints about medical practitioners in psychiatry increased 67% and complaints about medical practitioners in mental health increased 135%.10

  • Australia’s drug regulatory agency has issued over 80 psychiatric drug warnings to warn of the risk of agitation, aggression, increased blood pressure, diabetes, hallucinations, life-threatening heart problems, suicidal behaviour and possible death.11
  • In Australia, by December 2019, there were 49,248 adverse drug reaction reports linked to antipsychotics and antidepressants, 1,907 of these deaths.12
  • Unlike Victoria and Western Australia, the number of deaths in psychiatric wards and deaths within 28 days of discharge is not publicly reported in NSW.13

If psychiatric treatments were working there would be evidence of this in the reduction of children and adults requiring assistance. Money cannot be continued to be poured into the current failing NSW mental health system when there is a dire need for accountable and effective care.

No other industry would be allowed such a poor performance for money invested. In contrast, money given to other areas of medicine shows noticeable progress, such as improving survival rates from cardiovascular disease over the past 20 years.14 Existing money spent must be re-directed into proven workable solutions that provide real help.

ALTERNATIVES: There is no doubt that some children who are troubled require special care. But they should be given holistic, humane care that improves their condition. Institutions should be safe havens where children and adults voluntarily seek help for themselves or their child without fear of indefinite incarceration or harmful and terrifying treatment. They need a quiet and safe environment, good nutrition, rest, exercise and help with life’s problems. Extensive medical evidence proves that underlying and undiagnosed physical illnesses can manifest as psychiatric symptoms and therefore should be addressed with the correct medical treatment, not psychiatric techniques. Studies show that once the physical condition is addressed, the mental symptoms can disappear. With proper medical treatment and real help people can lead healthier, happier lives.

Take Action

TAKE ACTION

Please phone, visit, write, fax or email your local member of parliament asking for changes to be made to the NSW Mental Health Act.

To find your local Legislative Assembly Members of parliament can be found on this link: https://www.parliament.nsw.gov.au

You can contact any or all of the Members of the Legislative Council as they each cover all of NSW. Their offices are at Parliament House in Sydney. To obtain their contact details click on this link: https://www.parliament.nsw.gov.au

Tell others so they too can take action as well as share CCHR’s Facebook Posts and Tweets with others.


The NSW Mental Health Act can be found on this link: http://www.austlii.edu.au/au/legis/nsw/consol_act/mha2007128/


References

  1. “Guidance on Community Mental Health Services: Promoting Person-Centered and Rights-Based Approaches,” World Health Organization, 10 June 2021, pages 4,6,7,8. https://www.who.int/publications/i/item/9789240025707.
  2. Medicare-funded ECT statistics generated on Medicare Australia website using MBS item code 14224 (electroconvulsive therapy). http://medicarestatistics.humanservices.gov.au/statistics/mbs_item.jsp ; MBS Item Code obtained from http://www9.health.gov.au/mbs/search.cfm by entering “electroconvulsive therapy” in the search box. “Number of Electroconvulsive Therapy Treatments (Item 14224 by state and territory for calendar years) ; “2016, 2017 and 2018 for age groups under 10, 10-14 years and 15-19 years old,” Freedom of Information Request, Australian Government Department of Health, Department Reference Number: FOI 1150, Document 1, contact Department of Health or CCHR for statistics ; Mental Health Review Tribunal Annual Report 2022, pages 25, 45. https://mhrt.nsw.gov.au/annual-reports.html
  3. Aggression, Seclusion & Restraint in Mental Health Facilities in NSW, NSW Health Policy Directive: PD2012_035, 25 June 2012, cover page.
  4. Mental Health Safety and Quality in NSW: A plan to implement recommendations of the Review of seclusion, restraint and observation of consumers with a mental health illness in NSW Health Facilities, May 2018.
  5. Table SECREST.4, “Seclusion and restraint in mental health care.” Mental Health Online Report, Australian Institute of Health and Welfare. Web page last updated 11 April 2023. https://www.aihw.gov.au/mental-health/topic-areas/restrictive-practices; Table SECREST.1: Seclusion in public hospital acute mental health services, states and territories, 2008–09 to 2021–22. Mental Health, Australian Institute of Health and Welfare. Web data last updated 27 April 2023. https://www.aihw.gov.au/mental-health/topic-areas/restrictive-practices.
  6. NSW Mental Health Review Tribunal Annual Report 2022, page 21. https://www.mhrt.nsw.gov.au/annual-reports.html
  7. NSW Prevention of Cruelty to Animals Act 1979, No 200, s5. https://legislation.nsw.gov.au/view/whole/html/inforce/current/act-1979-200#sec.5 ; NSW Mental Health Act 2007, No 8, s69. https://legislation.nsw.gov.au/view/whole/html/inforce/current/act-2007-008
  8. “Record $1.9 billion budget for mental health,” 20 June 2017, NSW Health, https://www.health.nsw.gov.au/news/Pages/20170620_04.aspx; “Mental health budget, NSW Budget 2022-23,” NSW Health, 24 April 2023. https://www.health.nsw.gov.au/mentalhealth/Pages/budget.aspx
  9. “People who received mental health care provided by State and Territory public mental health services and who significantly improved, by service type and age group,” Productivity Commission Report on Government Services 2023, Part E, Section 13, 2 February 2023, Table 13.A64. https://www.pc.gov.au/ongoing/report-on-government-services/2023/health/services-for-mental-health ; “Readmissions to hospital within 28 days of discharge, by selected characteristics,” Productivity Commission Report on Government Services 2023, Part E, Section 13, 2 February 2023, Table 13A.35.
  10. Health Care Complaints Commission Annual Report 2011-12, “Complaints about medical practitioners by service area,” Appendices, Table 16.4 p101. https://www.hccc.nsw.gov.au/Publications/Annual-Reports; Health Care Complaints Commission Annual Report 2021-22, “Complaints about medical practitioners by service area,” Appendices, Table A.5, p123. https://www.hccc.nsw.gov.au/Publications/Annual-Reports.
  11. Fully referenced layman’s summary of all psychiatric drug warnings issued by Therapeutic Goods Administration. Fully referenced layman’s summary of all psychiatric drug warnings issued by the Therapeutic Goods Administration, https://cchr.org.au/ptanegul/2023/10/Australian-Psychiatric-Drug-Warnings-Fact-Sheet-.pdf
  12. Therapeutic Goods Administration Database of Adverse Event Notifications-Medicines, List of reports generated for each antidepressant, as of 05/03/2020 and added manually. https://www.tga.gov.au/database-adverse-event-notifications-daen; Therapeutic Goods Administration Database of Adverse Event Notifications-Medicines, List of Reports generated for each antipsychotic, as of 05/03/2020 and added manually. https://www.tga.gov.au/database-adverse-event-notifications-daen
  13. “Chief Psychiatrist of Victoria, Annual Report, 2010-11,” Figure 4: Reportable deaths by cause and gender, 2010–11, p.29. https://www2.health.vic.gov.au/about/key-staff/chief-psychiatrist/annual-reports; “Chief Psychiatrist of Victoria, Annual Report, 2018-19,” Reportable deaths in 2018-19, p. 19, https://www2.health.vic.gov.au/about/key-staff/chief-psychiatrist/annual-reports; Annual Report of Chief Psychiatrist of Western Australia, 1 July 2019 – 30 June 2020, p.49. https://www.chiefpsychiatrist.wa.gov.au/about/publications/; Annual Report of Chief Psychiatrist of Western Australia, 1 July 2020 – 30 June 2021, p.68. https://www.chiefpsychiatrist.wa.gov.au/chief-psychiatrists-annual-report-2020-21/ OR https://www.chiefpsychiatrist.wa.gov.au/about/publications/
  14. “Cardiovascular disease most deaths and highest costs, but situation improving,” Australian Institute of Health and Welfare, Media Release, 17 March 2011.
    https://www.aihw.gov.au/news-media/media-releases/2011/2011-mar/cardiovascular-disease-most-deaths-and-highest-co
Tagged under