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Mental health law reform and psychiatric deinstitutionalization: The issues in New South Wales
lnternatfonal Journal of Law and Psych&y. PrInted I” the U S A All rghls reserved
VoI 10, 369-362.
0160.2527/67 $3 00 + .OO CopyrIght I’ 1967 Pergamon Journals Lid
1967
Mental Health Law Reform and Psychiatric Deinstitutionalization: The Issues in New South Wales Steve Bottomley*
Introduction The aim of this paper is to outline recent developments concerning the links between deinstitutionalization and mental health law in New South Wales. Usually described as one of the “large” Australian States in terms of both population and economic significance, N.S.W. has been the Australian focal point for debates concerning mental health law reform in recent decades. These debates have doubtless been encouraged by the preparedness of a succession of Labor State Governments to consider (but not necessarily act on) proposals for legislative reform. In particular, I want to isolate what I think are two of the more important issues in that ongoing process. These issues were illustrated by an editorial in a Sydney newspaper which reported the concern of psychiatrists that: . . . fast talking lawyers with simplistic ideas of individual rights are wreaking havoc among their patients, succeeding as never before in securing the release of psychiatric patients who, for the good of themselves and the community, should remain under medical supervision (“Freedom as a State of Mind,” 1986).
It is the references to individual rights and to the issue of patient representation which, I argue, are central to understanding the deinstitutionalist implications of recent mental health legislation in N.S.W. This paper examines what potential and limitations each of these issues has for future mental health law reform. Recent Legislative Developments In N.S.W. since 1958, public mental health practice has been “governed” by the Mental Health Act, 1958. I qualify the term governed because, as I have argued at more length elsewhere (Bottomley, 1984a, 1984b), from its inception the 1958 Act was built on a deference to psychiatric control over questions of mental illness. That Act, through its frequent references to psychiatric or medical opinion at all stages of admission, treatment, and discharge has acted as a *Lecturer in Law, Department NSW 2070, Australia.
of Legal Studies,
Kuring-gai 369
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conduit to legitimate the medical control of the process of psychiatric hospitalization. Recent changes to the 1958 Act represent an attempt to reconstitute the limits within which that professional and administrative discretion is exercised. These changes have been described in detail elsewhere (Bottomley, 1984b; Verdun-Jones, 1986) and only a brief overview is provided here. Moves to reform the 1958 legislation officially began in 1972 with the appointment of a review committee (the Edwards Committee), which tabled its final recommendation in 1976. The Committee proposed that the scope of the legislation should be narrowed in certain parts, most notably by a more restricted definition of “mentally ill person” and stricter criteria for involuntary admission. According to the Committee’s chairman, one of the issues underlying the proposal was the need for mental health legislation which would balance a person’s “legal rights to preservation of freedom, reputation and self-determination; medical rights to obtaining essential medical treatments and care . . . and the rights of obtaining such treatment and care in an atmosphere of humanity and dignity” (Edwards, 1978). It was not until 1982 that a Mental Health Bill was tabled. That Bill adapted many of the Edwards Committee’s recommendations, and also extended their implications into other areas such as treatment. Following some public debate, a revised Mental Health Bill was passed through Parliament in November, 1983. At the time of writing, the civil commitment provisions of the 1983 Act have not commenced operation. Nevertheless, the new Act has already been criticised by some commentators as being overly legalistic. Certainly, there are features of the Act which might create this appearance. For example, the new definition of mentally ill person (s.5) is based predominantly on criteria of serious physical harm to oneself or others. The Act restructures the involuntary admission process, continuing the previous legislative requirement of a precommittal magisterial inquiry, but adding a presumption in favour of representation of the patient at the inquiry. The Act also introduces the “very high probability” standard of proof into committal decisions. Perhaps the clearest statement of the philosophy behind the 1983 Act is found in its Preamble which emphasises: (a) that the provision of services in respect of persons with mental illness requires both community care facilities and hospital facilities; (b) that hospital care should be provided on an informal and voluntary basis where appropriate, and, in a limited number of situations, on an involuntary basis; and (c) that the civil rights of persons should be protected and, at the same time, that opportunity should be given for persons with mental illness to have access to appropriate care. Although the provisions of the Act might be summarised as a “relegalization” of the N.S.W. mental health system it should also be recognized that they represent legislative affirmation of the process of psychiatric deinstitutionalization.
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Treatment
Deinstitutionalization is a descriptive term, not an analytical one. It simply describes what has been happening to mental hospital populations in Australia since the early 1950s: while admissions and admission rates have steadily climbed, there has been an accompanying decrease both in residency rates and in the average length of stay. In New South Wales a trend has developed whereby more people are being admitted, and are treated for short periods of time before being discharged back into the community. In N.S.W. between 1962 and 1978, for example, there was a 61% decrease in the number of people resident in psychiatric hospitals and a 45% increase in admissions over the same period (from figures in Shiraev, 1979). A 1981 study of involuntary admissions in N.S.W. found that 50% of patients remained in the hospital for less than 32 days, while 80% were discharged within 90 days of being made involuntary patients (Flaherty & Hall, 1981, p. 22). This trend is compounded by figures which show that the readmission rate for New South Wales psychiatric hospitals ranges between 60% and 84% of the first admissions (Australian Commonwealth Government Department of Health, 1978, p. 23; Young & Reynolds, 1980, p. 61). Deinstitutionalization is not even an accurate description of contemporary events insofar as it implies that psychiatric institutions are withering away. This is misleading: state-sponsored moves towards community treatment represent a shift in the management of the psychiatric population. The ambit of the decisionmaking power of mental health professionals has now extended into the community. Cohen (1977) has described this as the creation of a “treatment continuum”-from the admission centre to the half-way house to the community health centre and (more often than not) eventually back to the admission centre. This has blurred the distinction that previously existed between the psychiatric hospital and the community. Cohen emphasises that there has not been a decline in institutional control, but rather that it has been tempered with a “network of other institutions such as school and family, and broader trends in welfare and social services, bureaucracies and profession” (1977, p. 340). In New South Wales the trend towards deinstitutionalization was apparent some years before it became official psychiatric policy in the 1960s when the terms of 1958 Act allowed professional concerns about “community treatment” to be translated into public policy (Bottomley, 1984a). More recently, the New South Wales State Government has restructured its provision of health and welfare services. In 1979 a “rationalization” of general public health services was announced, involving the closure and redistribution of general hospital services. This rationalization eventually filtered into the psychiatric system; the plan included closing-down (wholly or partially) and restructuring public psychiatric hospitals, and shifting reliance onto the general public hospitals and community-based health centres. One of the more significant steps in this process was the establishment, in August 1982, of the Inquiry into Health Services for the Psychiatrically Ill and Developmentally Disabled (the Richmond Report) which reported in March 1983. The general framework of the Richmond Report was indicated in its early recommendation that, in providing health services to these groups:
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The two prima facie operational objectives [should] be to (i) fund and/or provide services which maintain clients in their normal community environment;
[and1 (ii) progressively reduce the size and number of existing Fifth Schedule hospitals [i.e. public psychiatric hospitals] by decentralizing the services they provide (Richmond Report, Summary of Recommendations, p. 2).
A great deal of debate has been generated over the implications of these recommendations in a restricted economic and political climate (see Lennie & Owen, 1983). For example, the Report argued that “in the current economic climate, it is essential that optimal use be made of the existing private facilities” (Richmond Report, Part 3, p. 49). In New South Wales, deinstitutionalization -through the rhetoric of community treatment -is being used to support what Gough (1979) has identified as a trend to “the re-privatization of parts of the welfare state, more specifically for expenditure to switch from direct state provisions of services to public subsidisation and purchase of privately produced services” (1979, pp. 140-141, emphasis in original). This could eventually lead to what Brown (1985, p. 111) has identified in the United States as a complex mix of public and private sector health care. More often than not, governments have adopted the rhetoric but not the content of community treatment arguments, resulting in what Scull (1976) has described as the “ghettoization” of discharged psychiatric patients. The evidence in Australia has paralleled overseas experiences. In 1977 a survey of ex-psychiatric patients was conducted as part of the Commonwealth Government’s Inquiry into Poverty: 56% of those surveyed were living on a pension in the community; 42% were living in nursing homes, boarding houses, or other institutions. A 1975 study showed that 8 out of 90 ex-psychiatric patients were in private accommodation - the remainder were living in convalescent homes and boarding houses. In 1978 an Australian Government Department of Health Review reported that one-half to two-thirds of discharged patients were not in the labour market (all cited in Australian Department of Health, 1978, p. 49). In New South Wales, media reports have highlighted the abuse of ex-patients, such as claims that “pension cheques are often cashed by boarding house proprietors, who returned a few dollars after subtracting the cost of the board” (“Claims,” 1977). Most commonly, community treatment consists of the use of psychiatric drugs and longterm medication (Brown, 1985, p. 149). In New South Wales, as in overseas jurisdictions, the reasons behind the popular appeal of the community treatment rhetoric amongst health administrators and bureaucrats are complex, combining localized political, economic, and ideological factors. Politically, “[it] contributes to the modernization of psychiatry by seeking to free it from those aspects of its social role which would de-legitimize it” (Rose, 1985, p. 211); economically, it can and has been used to effect cost savings for the state (e.g., Scull, 1977; Lennie & Owen, 1983); and ideologically, the notion of community is both apolitical and pluralistic, thus enhancing its political digestability. It has rhetorical value precisely because it
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has “been attributed too readily and too emphatically to a process of humanization, thus dispensing with the need for further analysis” (Foucault, 1979, p. 7). It is therefore easy to conclude that by introducing a variety of procedural and administrative reforms, the new Mental Health Act will in practice reinforce this redistribution of mental health services in this State. As I suggested earlier, the 1983 Act might then be read as evidence of a relegalization or, to use Gostin’s term, a “new legalism” (Gostin, 1983), in the mental health system. I suggest, however, that these type of assessments are problematical. The Nature of Mental Health Law The problem with arguments phrased in terms of a new legalism is that they tend to overemphasise the text of the legislation, as though the sections of the Act themselves produce that effect. This positivist approach to law seems to underly the work of many liberally minded mental health law critics and reformers both in Australia and overseas. Yet surely it must be recognized that, particularly in the late twentieth century, “law can no longer be the source of its own meaning, but receives meaning from the outside, from the policy aims or objectives it is supposed to serve and the affect it produces, i.e., from its context” (Thomson, 1981, p. 30). There is a danger in fetishizing the terms of the Mental Health Act. Mental health law is not to be found exclusively in either the pages of the statute, or the outcomes of mental health hearings, or the decisions of the Supreme Court, or in the professional practices of lawyers and psychiatrists. It is constituted by all of these factors, and others (e.g., Government activityand inactivity-on health issues; institutional work practices). Understanding the current state of mental health law means analyzing the intersection of these factors to see how that law and practice is being continually constituted. I can summarize this point by saying that mental health law should be understood as an ongoing process of implementation. This process formalizes certain power-relations (e.g., doctor-patient, lawyerpatient); it also creates focal points-or sites -in which these power relations are being continually defined and structured. In the remainder of this paper I will consider one particular power-relation (lawyer-patient) in one type of site (magisterial committal inquiries). In this way I will examine the two issues which were isolated at the beginning of this paper. Before proceeding, however, I should briefly explain my references to power and sites. Power is exercised in relations between people. Power-relations do not necessarily imply forms of oppression or domination; power produces designations of which particular issues (e.g., rights), areas of knowledge, and practices are to be considered significant. The concept of sites is adapted from Wickham (1985, p. 3), “we might loosely define a site as an intersection of practices around a particular objective.” In different sites, different power-relations will be formed. It follows that, because of institutional variations in professional power-relations, it might be more accurate to think of ‘magisterial committal inquiries’ as a category of sites, rather than implying a completely unified set of practices at each inquiry. Nevertheless, for the purposes of the present discussion I will rely on the broad similarities between different magisterial inquiries in order to make some general points about patient representation and rights.
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in Magisterial Inquiries
My focus on these sites is dictated by the history of psychiatry and mental health law in N.S.W., especially over the last decade and a half. This historical development has meant that, in N.S.W., the arena of debate on mental health reform has primarily been the public wards of the psychiatric hospitals, and in particular the involuntary admission process and the magisterial committal inquiry. New South Wales is presently the only Australian State which requires a form of judicial hearing as a prelude to any period of involuntary civil detention. As suggested earlier, the 1958 Mental Health Act prescribes nothing in the way of procedural requirements for the conduct of these inquiries. Much of the evidence on their actual conduct is derived from informal observation and reports by participants. Taken as a whole it suggests that, until recently, they have operated in an informal way, to provide a legal sanction for medical control of the admission process. The first report of the Edwards Committee on the Mental Health Act, 1958 recommended that a pilot scheme should be implemented to study the impact of providing legal representation for all patients coming before magistrates under the involuntary committal provisions of the Act. The Report of the subsequently appointed Legal Representation Committee on that pilot scheme (N.S.W. Health Commission, 1978) recommended that patient representation be provided by the State Government, mainly through the services of “persons without formal legal training.” Despite this, no comprehensive scheme of patient representation was implemented. From 1981, however, the N.S.W. Public Solicitors’ Office provided a duty solicitor to represent patients at committal hearings at a limited number of admission centres in the Sydney metropolitan area. As indicated above, the 1983 Act now provides (in s.SS(S)) that, at an inquiry, a person brought before the stipendary magistrate shall, unless they decide otherwise, be represented by a lawyer or, with the leave of the magistrate, by another person of their choice. The section also allows the possibility of legal representation for any other person appearing before the magistrate. In response to this and related provisions in the Act, the N.S.W. Legal Aid Commission established a Mental Health Advocacy Service at the beginning of 1986, staffed by salaried lawyers and social workers. The existence of this Service has provoked some critical responses, such as the one cited in the Introduction to this paper. The mandatory requirement of representation in s.88(5) contains two implications. First, inasmuch as it allows the possibility of nonlegal representation, it acknowledges that the mental health field is still not regarded as a strictly Iegal one. Nevertheless it can be argued with regard to advocacy styles that representation by either lawyers or lay-advocates will raise much the same set of issues. This is confirmed in the general literature on nonlegal advocacy, in which a common concern is whether lay-advocates will “measure up” to lawyers standards (Basten & Disney, 1975). Rather than circumventing imbalances of power in the lawyer-client relationship, the use of lay-advocates often leads towards professionalist stances (Moore, 1978). The second implication is that, in so far as s.88(5) exhibits a bias towards a
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legal representation, there is some value or purpose that can be achieved through the inclusion of lawyers in the civil commitment process. In this context it is worth noting the expectations behind the 1977 pilot representation scheme. The Edwards Committee advanced the following arguments to support the idea of patient representation: that “since restrictions of liberty are at issue for involuntary psychiatric patients, then representation should be provided for them at committal hearings”; that “persons with mental disorder . . . are incapable of !ooking after their own interests regarding legal representation”; and that “persons who become involuntary psychiatric patients lose not only their liberty but also other rights” (Sydney Institute of Criminology, 1978, p. 14). The assumption was and still is, that lawyers can do something about the issues of liberty, incapacity, and rights. The Report on the pilot scheme expressed the view: that the introduction of a patient representation service would significantly increase the attention paid to the civil rights of patients, would facilitate a greater understanding by staff and patients of the provisions of the Mental Health Act and would lead to a consideration of individual cases by magistrates (N.S.W. Health Commission, 1978, P. 8). The 1983 Act seeks to redefine the magisterial inquiry from a forum which has been procedurally vague, the purpose of which has been to rationalize the exercise of psychiatric power, into a judicial hearing which (on paper at least) would conform to the ideals of due process. Process and procedure, the 1983 Act seems to assume, will render professional judgements accountable, correct mistakes, and counter arbitrariness. While I agree that these are necessary and worthwhile aims, there is a need to closely examine the extent to which legal representation can guarantee them. This is not to suggest that lawyers should not be involved in the psychiatric admission process-rather, the point is that arguments about the necessity of their presence should be based on the history and politics of the situation in N.S.W., than on idealist assumptions. The recent developments in N.S.W. have generated the need for a clearer analysis of the work being done under the heading of patient representation.
Patient Representation -A Matter of Style? The debate surrounding legal intervention into the N.S.W. mental health system has largely been conditioned by American analyses, and there is little evidence of critical thought on the question of patient representation beyond that concerning styles of advocacy. That debate has been waged between two broadly defined models: the so-called adversarial and best interests approaches. While there are specific points of disagreement about how either approach is to be constructed, some indication of the nature of the debate can be gauged from the following selection. The best interests approach is based on the perception that the civil commitment proceeding is concerned with helping the person concerned. According to the Yale Law Journal:
STEVE BOTTOMLEY
Many feel that the lawyer should join in seeing that his client obtains the help that the client would want if only he knew what is in his own best interest. If the lawyer instead fights commitment he will at times precipitate the release of an individual who needs hospitalization and who might consequently harm himself or the community. . . . Thus, many commitment lawyers take the position that counsel should oppose a commitment petition for a client only if he has determined in his own mind that the client should not be committed (Note, 1975, p. 1542). Supporters of the adversarial approach are critical of the paternalism inherent in the best interests view; they rely on what is presumed to be the traditional role of lawyers wherein: . . . lawyers resist allowing their perception of the client’s best interests to interfere with their advocacy of the client’s expressed desires, believing that their role is to advocate, and that the decision as to commitment should be left with the fact finder. This is the traditional notion that a lawyer’s function is to advocate the position that his client favours and to allow the client to make the ultimate decisions that must be made in litigation (Note, 1975, pp. 1542-43).
Not all arguments have attempted to draw the distinction between the issues so rigidly. Gordon posits a continuum of “delivery styles” to be adopted by lawyers, falling between a “strict instructions” approach, and a “patient welfare” approach. The former, though adversarial in nature: is not necessarily to be correlated with aggressive, partisan advocacy for, in theory at least, it can involve adopting a conciliatory rather than adversarial approach to an issue if that is requested by a patient (Gordon, 1981, p. 177). The patient welfare style is described as being “a more conciliatory stance” (Gordon, 1981, p. 177). As this brief review indicates, consideration of the position of lawyers in the civil commitment process has been characterized by a dichotomy between two supposedly conflicting models. Even attempts to be less rigid often tend to arrive at conclusions which are phrased in terms of the same dualism. For the purposes of theoretical development, this is unfortunate, for there are serious deficiencies in the construction of the dichotomous debates. As Hunt has remarked in another context, dichotomous arguments “have, as a necessary effect, a tendency to result in an unstable analysis which lurches between the polarities set up” (Hunt, 1981, p. 52). The further tendency for such arguments to reify abstract categories (Tomasic, 1985, p. 87) underlies the need to look more critically at the debate on ‘styles of advocacy.’ The critique presented here draws on a more general and extensive argument presented by William Simon, which discusses the ways in which the activities of lawyers are rationalized by the ‘Ideology of Advocacy’ (Simon, 1978). The
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Ideology of Advocacy, according to Simon, is based on four principles. Two are described as principles of conduct: neutrality (“the lawyer is expected to represent people who seek his help regardless of his opinion of the justice of their ends”); and partisanship (“the lawyer [should] work aggressively to advance his client’s ends”) (Simon, 1978, p. 36). The other two are described as foundation principles: procedural justice (“the notion that there is an inherent value or legitimacy to justify specific actions without reference to the consequences they are likely to promote”); and professionalism (“the notion that the law is an apolitical and specialized discipline and that its proper development and application require that legal ethics be elaborated collectively by lawyers in accordance with criteria derived from their discipline”) (Simon, 1978, p. 38). Simon’s agument provides a useful perspective from which to assess the debate on styles of advocacy. On a closer reading, the debate over the best interest and adversarial stances can be seen to converge on many aspects of the ideology of advocacy. Given that Simon’s argument is built on an ideal typology, I am not asserting that all arguments for a best interests or an adversarial stance simply share matching ideological ground. Nevertheless, there are important shared assumptions. Notions of professionalism certainly pervade both sets of arguments. There is little critical consideration, and much implicit acceptance, of the appropriateness of lawyers to civil commitment proceedings on both sides of the debate. Similarly, supporters of both sides rely, at least implicitly, on what Simon calls the principle of procedural justice. At its extreme, the adversarial model suggests that “when the client decides that she wants, the attorney should aid her in promoting that goal,” and that it is the court, or judge which is the “only proper party to decide what is in the ill person’s and the public’s best interest” (Andalman & Chambers, 1974, pp. 48, 49). On the other hand, the best interest stance, in its more idealized form, sees the lawyer acting as “fact-finder”, seeking to “improve the process of decisionmaking” (Brake& 1981, p. 80). Both models can thus be seen to place their faith (in different ways) in the inherent legitimacy of the judicial proceedings and the ideology of due process. There is, arguably, greater divergence on the first two principles of conduct (neutrality and partisanship). Even so, to the extent that both models suggest a separation of the lawyer’s purposes from those of his or her client, either through strictly following the client’s instructions, or by somehow elucidating an objectively defined best interest, both can be said to acknowledge the principle of neutrality. Perhaps then, the debate over styles of advocacy centres on the notion of partisans/zip. Yet even here proponents of both views would presumably agree that their client’s ends need to be advanced. Partisanship, as Simon defines it, is not in issue-the disagreement concerns how those ends are to be determined. And whilst this is a significant point of disagreement, it has tended to cover over a substantial and implicit agreement on many of the principles which Simon includes in his ideology of advocacy. This is because the debate, due to its polarized nature, has become increasingly reliant on idealist points of view. There is also evidence to suggest that the dichotomy is not necessarily maintained in practice. A similar debate has been waged in the area of child representation in family law matters, and it provides a useful comparison. A study
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conducted in 1978 showed that whatever a lawyer’s own conception of his or her role, it did not often carry through into his or her actuai practice. Whereas “more than half the attorneys volunteered a theoretical label for their role [ranging from advocacy to best interests] . . . every one of those attorneys took on responsibilities inconsistent with his characterization.” The conclusion was that the “abstract conceptions of the role . . . had only partial and sometimes misleading implications for practice” (Note, 1978, p. 1145-46). Further evidence exists in the mental health field: a 1977 survey of committal hearings by Hiday found that lawyers representing patients adopted an adversarial stance in less than half of contested cases. The study found that role confusion existed amongst representing attorneys as to the appropriate stance to adopt: counsel’s attitudes towards psychiatry, mental illness, and state mental hospitals appear to be important factors influencing the decision model which is followed (Hiday, 1977, p. 564). It would seem, then, that as the debate over appropriate lawyering roles has become more abstract, it has also had little connection with the practicalities of “lawyering.”
The Relationship Between Patient Representation and Psychiatric Practice 1 should stress that the preceding critique is directed at the dichotomous and idealistic nature of the general debate, rather than at any particular model subsumed within it. There is, though, an important result of looking at the similarities between the adversarial and best interest models: both approaches-via the ideology of advocacy-can be seen to maintain a dualism between law and psychiatry. This is most obvious in adversarial arguments, which require lawyers to actively pit themselves against psychiatric expertise, but it is no less fundamental to the best interest approach. That approach involves a demarcation of areas of expertise, perpetuating an assumption of distinctly legal versus psychiatric bodies of knowledge and practice. This dualism tends to overlook the vital point that within an institutional setting both lawyers and psychiatrists will ultimately be concerned with the exercise of power in an interrelated way. A stance which views psychiatrists exclusively as oppressive, alien, or authoritarian does not see that psychiatric power and legal power become related dialectical/y in the institutional setting. This, of course, is not how the fact of legal intervention appears. The establishment of psychiatric patient representation schemes appears as a state-sponsored legal challenge to the exercise of psychiatric power. The very presence of lawyers in the civil commitment process is viewed by many psychiatrists as an attack on their historically-established professional position (as the previously quoted newspaper editorial demonstrates). This reaction may well be justified to the extent that the introduction of lawyers does have some effect on psychiatric practice, however varied. This is shown, for example, in statistics on the effect of legal representation on committal rates (see, e.g., Sydney Institute of
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Criminology, 1978, p. 31). It can also confidently be predicted that the 1983 Mental Health Act will affect the way in which psychiatric evidence is presented to the magisterial inquiry. Yet this is only half the picture, because psychiatric practices will also inevitably affect the style and nature of legal intervention. In the long term, the continued operation and existence of a system of public psychiatry, in some form will be both affirmed and guaranteed by the introduction of what will, at one level, be a challenge to it (see Warren, 1982 for an extensive U.S. study). I should quickly clarify one point: I am not arguing that, in the long run, patient representation will simply legitimate the operations of the public psychiatric system. This would be to posit a simple one-way co-optation of lawyers by the mental health system, leaving no room to examine the possibilities that patient representation will both condition and be conditioned by the exercise of psychiatric powers. Of course in many jurisdictions patient representation has been reduced to “rubber-stamping” psychiatric diagnoses and decisions (e.g. Cohen, 1966), but there is nothing inevitable about this result. Furthermore, I suggest that this long term effect will not be greatly affected by the debate over styles of representation. Of course, consideration of styles will be important because, as with all dialectical relations, there are opportunities for development and change. Lawyers in the mental health setting can assume a developmental role (on matters such as admission policy, treatment, etc.), but through a dialectical relationship with psychiatry. What will be required is an appreciation and analysis of the specific institutional and ideological constraints within which any patient representation scheme is to be located. The concepts of power and sites will, I suggest, prove valuable in organizing such an analysis. Patient’s Legal Rights and Mental Health Reform As I have already suggested, the idea that the intervention of lawyers can achieve some reform in the operation of the mental health system sits uneasily beside the literature which stresses the controlling, de-politicizing effects of the lawyer-client relation in general. Cain has argued that lawyers are “conceptive ideologists”; that is, they translate everyday issues into a “meta-1angauge” which “is also the workaday language for certain state authorized adjudicators” (Cain, 1979, p. 353). Similarly, Abel has commented on the capacity of lawyers to define the agenda for achieving social justice in capitalist society (Abel, 1979). With regard to s.88(5) of the Mental Health Act, it could be said that lawyers in the N.S.W. mental health system have been given the task of translating and recasting patient demands into the ideologically and administratively acceptable language of ‘rights.’ The argument in favour of legal representation for psychiatric patients tends to insist on two things: that it should be a right in itself, and that it is also the most effective way of overseeing the implementation of other rights and reforms in the psychiatric system. However, the use of rights as a strategy for mental health reform has not been unanimously acclaimed. One criticism made is that no progress towards civil liberties, social justice, or a humane society can be achieved by a reliance on claims about legal rights. The ascription of legal
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rights, it:
it is said, legitimates
the prevailing
social order rather than challenging
. . . rights strategies do not provide a useful basis for those who would wish to transform the social position of the mentally ill-or any other group for that matter. On the contrary, they illustrate the limited conceptions held by many legal activists of the nature of law and legal mechanisms vis-a-vis other mechanisms of organizing, monitoring and transforming social provisions (Rose, 1985, p. 215).
The underlying concern of such criticisms is acknowledged here. Reform campaigns based on notions of rights can assume a pluralist view of the contemporary social order, and gloss over the difficulties inherent in ideas such as patient autonomy. But this should serve as a cautionary reminder about legal rights arguments, rather than as a reason for abandoning them altogether. The rhetoric of rights is an entrenched form of discourse with the state and its agencies: “it is part of our liberal, cultural, conceptual and political heritage” (Brown, 1984, p. 45). This does not imply an uncritical adoption of this discourse. Rights, as Jacoby argues, should be viewed dialectically: “they are both progress in freedom and progress in domination” (Jacoby, 1975, p. 113). Thus, for example, the right to treatment implies both the right not to be warehoused, and the right to be drugged. Within this dialectical view, it must be acknowledged that rights-based arguments do not carry their own guarantees of success. Indeed, it may not always be possible to predict the responses that they will evoke because, as Phil Brown has argued in the United States, patients’ rights arguments are the result of a conjuncture of economic, political, professional, and institutional factors. For this reason, “patients’ rights have been crucial even if they are now seen as very problematic” (Brown, 1985, p. 204). This means that the mobilizing potential of rights-arguments must not be ignored. As Brown argues, rights arguments have become significant in focusing attention on the issues of treatment and the political economy of mental health care; moreover, “the indirect influence of patients’ rights issues is a generalized critique of many basic assumptions of psychiatric theory and practice” (Brown, 1985, p. 205). To realize the opportunities inherent in any legal rights strategy they must be anchored to specific contexts rather than being discussed in the abstract. On the issue of deinstitutionalization, for example, advocates of a right to treatment in the least restrictive setting must take into account localized governmental and bureaucratic practices, as well as the fact that the significance of rationales such as community and community treatment vary both over time, and in different sociopolitical contexts. Recognizing the specific parameters of rights-based arguments in the mental health area is an important step in effectively mobilizing political activity and enabling those arguments to be translated into practice. Rights arguments, like legal representation, should not be regarded as selfsufficient. While the language of rights may be used in discourse with the state, this does not necessarily mean that everyday political activity should be constructed around that language (Gabel & Harris, 1982, p. 377). Other tactics and mechanisms for implementing and enforcing the demands inherent in rights arguments will also be required.
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Conclusion In examining the links between deinstitutionalization and mental health law reform in New South Wales, I have stressed that there is danger in fetishizing the Mental Health Act and the role of lawyers in the civil commitment process. The magisterial committal inquiry is only one site at which mental health law and practice is constituted. My argument is that patient representatives should understand that mental health law constitutes both a political and an ideological practice. It is political in that it organizes, institutionalizes, and represents the relations of power between various groups and individuals. Intertwined with this, is an ideological content-it embodies and fosters certain historically determined, professionalist views, attitudes, and practices. Effective patient representation also means looking at the links between legal representation and other practices. Beyond legal intervention in the mental health system there is a broader sphere of activity-a sphere wherein (to use the words of one worker in Bologna, Italy) “we must not struggle for better psychiatric care but for working conditions which do not make us animals by the time we go home” (Jaggi, Muller, & Schmid, 1977, p. 173). References Abel, R. L. (1979). Socializing the legal profession: Can redistributing lawyers’ services achieve social justice? Law and Policy Quarterly, I, 5-51. Andalman, E., &Chambers, D. L. (1974). Effective counsel for persons facing civil commitment: A survey, a polemic, and a proposal. Mississippi Law Journal, 45, 43-91. Australian Government Department of Health. (1978). Review of mental healrh care. Canberra: Policy and Planning Division, Monograph No. 2. Basten, J., & Disney, J. (1975). Comment: Representation by special advocates. Universitv of New South Wales Law Journal, I, 168-174. Bottomley, S. (1984a). Law and psychiatry: Aspects of the relationship in N.S.W. Australian Journalof Law and Sociefy, 2, 30-59. Bottomley, S. (1984b). Changes to N.S.W. mental health legislation: Some reasons for rationalisation. Legul Service Bulletin, 9, 23-25. Brakel, S. J. (1981). Legal aid in mental hospitals. American Bar Foundufion Research Journal, I, 21-93. Brown, D. (1984). A Critique of the Legal Service Bulletin. In D. Neal (Ed.), On /up, no/ on fop: Legal centres in Ausfralia 1972-1982. Victoria: Legal Service Bulletin Co-op Ltd. Brown, P. (1985). The transfer of care: Psychiatric deinsfitutionalisation and its aftermath. London: Routledge & Kegan Paul. Cain, M. (1979). The general practice lawyer and the client: Towards a radical conception. International Journal of the Sociology of Law, 7, 33 l-354. Claims that psychiatric patients are often treated badly. (1977, September 9). Sydne_v Morning Hera/d. Cohen, F. (1966). The function of the attorney and the commitment of the mentally ill. Texas Law Review, 44, 424-469. Cohen, S. (1977). Prisons and the future control systems: From concentration to dispersal. In M. Fitzgerald (Ed.), We,fare in action. London: Routledge & Kegan Paul. Edwards, 0. (1978, July 11). Letter to the editor. Sydney Morning Herald. Flaherty, B., & Hall, W. (1981). Psychiatric hospitalisation-An empirical study of involuntary and voluntary admission in N.S.W. Mental Health in Australia, l(6), 17-25. Foucault, M. (1979). Discipline andpunish. New York: Vintage Books. Freedom as a state of mind. (1986, May 23). Sydney Morning Hera/d, p. 12. Gabel, P., & Harris, P. (1982-83). Building power and breaking images: Critical legal theory and the practice of law. New York University Review of Law and Social Change, 1 I, 369-411. Gordon, R. (1981). Legal services for mental patients: Some Commonwealth developments. Infernational Journal of Law and Psychiatry, 4, 171-180.
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Ciostin, L. (1983). Contemporary social historical perspectives on mental health law reform. British Journal ofLaw und Society, 10, 47-70. Ciough. I. (1979). Thepoliticul economy of the welfare state. London: Macmillan. Hiday, V. A. (1977). The role of counsel in civil commitment: Changes, effects and determinants. Journal of Psychiatry and the Lu\v, 5, 551-569. Hunt, A. (1981). Dichotomy and contradiction in the sociology of law. British Journal of Law and Society, S(1). 47777. Jacoby, R. (1975). Social amnesia: A crilique of conformist psychology from .Adler to Laing. Sussex: Harvester Press. Jaggi, M., Muller, R., & Schmid, S. (Eds.). (1977). Red Bologna. London: Writers and Readers. Lennie, I., & Owen, A. (1983). Continuing crisis in health services. Community Heulth Studies, 7, 227-237. Moore, P. (197X). People as lawyers - Lay advocacy and self-help in the legal system. Brrrish Journal of Law undSociety, 5, 121-132. New South Wales Department of Health. (1983, March). Inquiry in/o heulth services for thepsychiutricalt_v ill and developmental/y disabled [Richmond Report]. Sydney: N.S.W. Department of Health. New South Wales Health Commission. (1978). Report IO the Ministerfor Health by ihe Legal Representation Commitfee. Sydney: N.S.W. Department of Health. Note. (1975). The role of counsel in the civil commitment process: A theoretical framework. Yrrle La+% Journul, 84, I540- 1563. Note. (1978). Lawyering for the child: Principles of representation in custody and visitation disputes arising from divorce. Yale Lnw Journal, 87. 1126-l 190. Rendalls, S., Owen, A., & Bottomley, S. (1984). Mental health law in N.S.W.: Benevolence. expediency or opportunity for change? Legal Service Bulletin, 9, 268-273. Rose, N. (1985). Unreasonable rights: Mental illness and the limit\ of the law. Jo~trnulofLu~vondSocief.v, f2, 199-218. Scull, A. T. (1977). Decarceration: Communit.v treatment und /he deviunt. New Jersey: Prentice-Hall. Shiraev, N. (1979). Psychiatric stotistrcs: Notes towards u history of public psychiatry in W.S. U: Sydney: Health Commission of N.S.W., Division of Health Services Research Report No.7911. Simon, W. H. (1978). The ideology of advocacy: Procedural jurtice and professional ethics. Wisconsin LUM Review; 1978, 29-144. Sydney Institute of Criminology. (1978). Rights of the mentully ill: Represenfingpatients at rnentul health uct Ieurnings. Sydney: Faculty of Law, University of Sydney. Thomson, A. (1981). Lull, and the social sciencesThe demise of /ego/ utttonomy. Paper presented to Conference on Critical Legal Scholarship, University of Kent at Canterbury. Tomasic, R. (198.5). Towards a theory of legislation: Some conceptual obstacles. Stattrte Low Review Sut77ruer, 83- 105 Vcrdun-Jones, S. (19X6). The dawn of a “Ncvv Legalism” in Australia? The Nevv South Wales Mental Health Act, 1983 and related legislation. Internutronul JournulyfLuw and Psychiutry, 8. 95-l 18. Warren, C. A. B. (1982). The court of lust resorl: Mentut illness cmd the Iuw. Chicago: University of Chicago Prey\. Wickham, G. (1985). The importance of specific regulutions for power anulysis. Paper presented to Third Australian Law 8r Society Conference, Canberra College of Advanced Education, Canberra. Young, L., Bi Reynolds, I. (1980). Evuluation of se/e~tedp.~_~~c/~iutri~~ admission wards. Sydney: N.S.W. Health Commission, Division of Health Services Research.
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Mental Health Law Reform and Psychiatric Deinstitutionalization: The Issues in New South Wales Steve Bottomley*
Introduction The aim of this paper is to outline recent developments concerning the links between deinstitutionalization and mental health law in New South Wales. Usually described as one of the “large” Australian States in terms of both population and economic significance, N.S.W. has been the Australian focal point for debates concerning mental health law reform in recent decades. These debates have doubtless been encouraged by the preparedness of a succession of Labor State Governments to consider (but not necessarily act on) proposals for legislative reform. In particular, I want to isolate what I think are two of the more important issues in that ongoing process. These issues were illustrated by an editorial in a Sydney newspaper which reported the concern of psychiatrists that: . . . fast talking lawyers with simplistic ideas of individual rights are wreaking havoc among their patients, succeeding as never before in securing the release of psychiatric patients who, for the good of themselves and the community, should remain under medical supervision (“Freedom as a State of Mind,” 1986).
It is the references to individual rights and to the issue of patient representation which, I argue, are central to understanding the deinstitutionalist implications of recent mental health legislation in N.S.W. This paper examines what potential and limitations each of these issues has for future mental health law reform. Recent Legislative Developments In N.S.W. since 1958, public mental health practice has been “governed” by the Mental Health Act, 1958. I qualify the term governed because, as I have argued at more length elsewhere (Bottomley, 1984a, 1984b), from its inception the 1958 Act was built on a deference to psychiatric control over questions of mental illness. That Act, through its frequent references to psychiatric or medical opinion at all stages of admission, treatment, and discharge has acted as a *Lecturer in Law, Department NSW 2070, Australia.
of Legal Studies,
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conduit to legitimate the medical control of the process of psychiatric hospitalization. Recent changes to the 1958 Act represent an attempt to reconstitute the limits within which that professional and administrative discretion is exercised. These changes have been described in detail elsewhere (Bottomley, 1984b; Verdun-Jones, 1986) and only a brief overview is provided here. Moves to reform the 1958 legislation officially began in 1972 with the appointment of a review committee (the Edwards Committee), which tabled its final recommendation in 1976. The Committee proposed that the scope of the legislation should be narrowed in certain parts, most notably by a more restricted definition of “mentally ill person” and stricter criteria for involuntary admission. According to the Committee’s chairman, one of the issues underlying the proposal was the need for mental health legislation which would balance a person’s “legal rights to preservation of freedom, reputation and self-determination; medical rights to obtaining essential medical treatments and care . . . and the rights of obtaining such treatment and care in an atmosphere of humanity and dignity” (Edwards, 1978). It was not until 1982 that a Mental Health Bill was tabled. That Bill adapted many of the Edwards Committee’s recommendations, and also extended their implications into other areas such as treatment. Following some public debate, a revised Mental Health Bill was passed through Parliament in November, 1983. At the time of writing, the civil commitment provisions of the 1983 Act have not commenced operation. Nevertheless, the new Act has already been criticised by some commentators as being overly legalistic. Certainly, there are features of the Act which might create this appearance. For example, the new definition of mentally ill person (s.5) is based predominantly on criteria of serious physical harm to oneself or others. The Act restructures the involuntary admission process, continuing the previous legislative requirement of a precommittal magisterial inquiry, but adding a presumption in favour of representation of the patient at the inquiry. The Act also introduces the “very high probability” standard of proof into committal decisions. Perhaps the clearest statement of the philosophy behind the 1983 Act is found in its Preamble which emphasises: (a) that the provision of services in respect of persons with mental illness requires both community care facilities and hospital facilities; (b) that hospital care should be provided on an informal and voluntary basis where appropriate, and, in a limited number of situations, on an involuntary basis; and (c) that the civil rights of persons should be protected and, at the same time, that opportunity should be given for persons with mental illness to have access to appropriate care. Although the provisions of the Act might be summarised as a “relegalization” of the N.S.W. mental health system it should also be recognized that they represent legislative affirmation of the process of psychiatric deinstitutionalization.
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Treatment
Deinstitutionalization is a descriptive term, not an analytical one. It simply describes what has been happening to mental hospital populations in Australia since the early 1950s: while admissions and admission rates have steadily climbed, there has been an accompanying decrease both in residency rates and in the average length of stay. In New South Wales a trend has developed whereby more people are being admitted, and are treated for short periods of time before being discharged back into the community. In N.S.W. between 1962 and 1978, for example, there was a 61% decrease in the number of people resident in psychiatric hospitals and a 45% increase in admissions over the same period (from figures in Shiraev, 1979). A 1981 study of involuntary admissions in N.S.W. found that 50% of patients remained in the hospital for less than 32 days, while 80% were discharged within 90 days of being made involuntary patients (Flaherty & Hall, 1981, p. 22). This trend is compounded by figures which show that the readmission rate for New South Wales psychiatric hospitals ranges between 60% and 84% of the first admissions (Australian Commonwealth Government Department of Health, 1978, p. 23; Young & Reynolds, 1980, p. 61). Deinstitutionalization is not even an accurate description of contemporary events insofar as it implies that psychiatric institutions are withering away. This is misleading: state-sponsored moves towards community treatment represent a shift in the management of the psychiatric population. The ambit of the decisionmaking power of mental health professionals has now extended into the community. Cohen (1977) has described this as the creation of a “treatment continuum”-from the admission centre to the half-way house to the community health centre and (more often than not) eventually back to the admission centre. This has blurred the distinction that previously existed between the psychiatric hospital and the community. Cohen emphasises that there has not been a decline in institutional control, but rather that it has been tempered with a “network of other institutions such as school and family, and broader trends in welfare and social services, bureaucracies and profession” (1977, p. 340). In New South Wales the trend towards deinstitutionalization was apparent some years before it became official psychiatric policy in the 1960s when the terms of 1958 Act allowed professional concerns about “community treatment” to be translated into public policy (Bottomley, 1984a). More recently, the New South Wales State Government has restructured its provision of health and welfare services. In 1979 a “rationalization” of general public health services was announced, involving the closure and redistribution of general hospital services. This rationalization eventually filtered into the psychiatric system; the plan included closing-down (wholly or partially) and restructuring public psychiatric hospitals, and shifting reliance onto the general public hospitals and community-based health centres. One of the more significant steps in this process was the establishment, in August 1982, of the Inquiry into Health Services for the Psychiatrically Ill and Developmentally Disabled (the Richmond Report) which reported in March 1983. The general framework of the Richmond Report was indicated in its early recommendation that, in providing health services to these groups:
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The two prima facie operational objectives [should] be to (i) fund and/or provide services which maintain clients in their normal community environment;
[and1 (ii) progressively reduce the size and number of existing Fifth Schedule hospitals [i.e. public psychiatric hospitals] by decentralizing the services they provide (Richmond Report, Summary of Recommendations, p. 2).
A great deal of debate has been generated over the implications of these recommendations in a restricted economic and political climate (see Lennie & Owen, 1983). For example, the Report argued that “in the current economic climate, it is essential that optimal use be made of the existing private facilities” (Richmond Report, Part 3, p. 49). In New South Wales, deinstitutionalization -through the rhetoric of community treatment -is being used to support what Gough (1979) has identified as a trend to “the re-privatization of parts of the welfare state, more specifically for expenditure to switch from direct state provisions of services to public subsidisation and purchase of privately produced services” (1979, pp. 140-141, emphasis in original). This could eventually lead to what Brown (1985, p. 111) has identified in the United States as a complex mix of public and private sector health care. More often than not, governments have adopted the rhetoric but not the content of community treatment arguments, resulting in what Scull (1976) has described as the “ghettoization” of discharged psychiatric patients. The evidence in Australia has paralleled overseas experiences. In 1977 a survey of ex-psychiatric patients was conducted as part of the Commonwealth Government’s Inquiry into Poverty: 56% of those surveyed were living on a pension in the community; 42% were living in nursing homes, boarding houses, or other institutions. A 1975 study showed that 8 out of 90 ex-psychiatric patients were in private accommodation - the remainder were living in convalescent homes and boarding houses. In 1978 an Australian Government Department of Health Review reported that one-half to two-thirds of discharged patients were not in the labour market (all cited in Australian Department of Health, 1978, p. 49). In New South Wales, media reports have highlighted the abuse of ex-patients, such as claims that “pension cheques are often cashed by boarding house proprietors, who returned a few dollars after subtracting the cost of the board” (“Claims,” 1977). Most commonly, community treatment consists of the use of psychiatric drugs and longterm medication (Brown, 1985, p. 149). In New South Wales, as in overseas jurisdictions, the reasons behind the popular appeal of the community treatment rhetoric amongst health administrators and bureaucrats are complex, combining localized political, economic, and ideological factors. Politically, “[it] contributes to the modernization of psychiatry by seeking to free it from those aspects of its social role which would de-legitimize it” (Rose, 1985, p. 211); economically, it can and has been used to effect cost savings for the state (e.g., Scull, 1977; Lennie & Owen, 1983); and ideologically, the notion of community is both apolitical and pluralistic, thus enhancing its political digestability. It has rhetorical value precisely because it
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has “been attributed too readily and too emphatically to a process of humanization, thus dispensing with the need for further analysis” (Foucault, 1979, p. 7). It is therefore easy to conclude that by introducing a variety of procedural and administrative reforms, the new Mental Health Act will in practice reinforce this redistribution of mental health services in this State. As I suggested earlier, the 1983 Act might then be read as evidence of a relegalization or, to use Gostin’s term, a “new legalism” (Gostin, 1983), in the mental health system. I suggest, however, that these type of assessments are problematical. The Nature of Mental Health Law The problem with arguments phrased in terms of a new legalism is that they tend to overemphasise the text of the legislation, as though the sections of the Act themselves produce that effect. This positivist approach to law seems to underly the work of many liberally minded mental health law critics and reformers both in Australia and overseas. Yet surely it must be recognized that, particularly in the late twentieth century, “law can no longer be the source of its own meaning, but receives meaning from the outside, from the policy aims or objectives it is supposed to serve and the affect it produces, i.e., from its context” (Thomson, 1981, p. 30). There is a danger in fetishizing the terms of the Mental Health Act. Mental health law is not to be found exclusively in either the pages of the statute, or the outcomes of mental health hearings, or the decisions of the Supreme Court, or in the professional practices of lawyers and psychiatrists. It is constituted by all of these factors, and others (e.g., Government activityand inactivity-on health issues; institutional work practices). Understanding the current state of mental health law means analyzing the intersection of these factors to see how that law and practice is being continually constituted. I can summarize this point by saying that mental health law should be understood as an ongoing process of implementation. This process formalizes certain power-relations (e.g., doctor-patient, lawyerpatient); it also creates focal points-or sites -in which these power relations are being continually defined and structured. In the remainder of this paper I will consider one particular power-relation (lawyer-patient) in one type of site (magisterial committal inquiries). In this way I will examine the two issues which were isolated at the beginning of this paper. Before proceeding, however, I should briefly explain my references to power and sites. Power is exercised in relations between people. Power-relations do not necessarily imply forms of oppression or domination; power produces designations of which particular issues (e.g., rights), areas of knowledge, and practices are to be considered significant. The concept of sites is adapted from Wickham (1985, p. 3), “we might loosely define a site as an intersection of practices around a particular objective.” In different sites, different power-relations will be formed. It follows that, because of institutional variations in professional power-relations, it might be more accurate to think of ‘magisterial committal inquiries’ as a category of sites, rather than implying a completely unified set of practices at each inquiry. Nevertheless, for the purposes of the present discussion I will rely on the broad similarities between different magisterial inquiries in order to make some general points about patient representation and rights.
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My focus on these sites is dictated by the history of psychiatry and mental health law in N.S.W., especially over the last decade and a half. This historical development has meant that, in N.S.W., the arena of debate on mental health reform has primarily been the public wards of the psychiatric hospitals, and in particular the involuntary admission process and the magisterial committal inquiry. New South Wales is presently the only Australian State which requires a form of judicial hearing as a prelude to any period of involuntary civil detention. As suggested earlier, the 1958 Mental Health Act prescribes nothing in the way of procedural requirements for the conduct of these inquiries. Much of the evidence on their actual conduct is derived from informal observation and reports by participants. Taken as a whole it suggests that, until recently, they have operated in an informal way, to provide a legal sanction for medical control of the admission process. The first report of the Edwards Committee on the Mental Health Act, 1958 recommended that a pilot scheme should be implemented to study the impact of providing legal representation for all patients coming before magistrates under the involuntary committal provisions of the Act. The Report of the subsequently appointed Legal Representation Committee on that pilot scheme (N.S.W. Health Commission, 1978) recommended that patient representation be provided by the State Government, mainly through the services of “persons without formal legal training.” Despite this, no comprehensive scheme of patient representation was implemented. From 1981, however, the N.S.W. Public Solicitors’ Office provided a duty solicitor to represent patients at committal hearings at a limited number of admission centres in the Sydney metropolitan area. As indicated above, the 1983 Act now provides (in s.SS(S)) that, at an inquiry, a person brought before the stipendary magistrate shall, unless they decide otherwise, be represented by a lawyer or, with the leave of the magistrate, by another person of their choice. The section also allows the possibility of legal representation for any other person appearing before the magistrate. In response to this and related provisions in the Act, the N.S.W. Legal Aid Commission established a Mental Health Advocacy Service at the beginning of 1986, staffed by salaried lawyers and social workers. The existence of this Service has provoked some critical responses, such as the one cited in the Introduction to this paper. The mandatory requirement of representation in s.88(5) contains two implications. First, inasmuch as it allows the possibility of nonlegal representation, it acknowledges that the mental health field is still not regarded as a strictly Iegal one. Nevertheless it can be argued with regard to advocacy styles that representation by either lawyers or lay-advocates will raise much the same set of issues. This is confirmed in the general literature on nonlegal advocacy, in which a common concern is whether lay-advocates will “measure up” to lawyers standards (Basten & Disney, 1975). Rather than circumventing imbalances of power in the lawyer-client relationship, the use of lay-advocates often leads towards professionalist stances (Moore, 1978). The second implication is that, in so far as s.88(5) exhibits a bias towards a
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legal representation, there is some value or purpose that can be achieved through the inclusion of lawyers in the civil commitment process. In this context it is worth noting the expectations behind the 1977 pilot representation scheme. The Edwards Committee advanced the following arguments to support the idea of patient representation: that “since restrictions of liberty are at issue for involuntary psychiatric patients, then representation should be provided for them at committal hearings”; that “persons with mental disorder . . . are incapable of !ooking after their own interests regarding legal representation”; and that “persons who become involuntary psychiatric patients lose not only their liberty but also other rights” (Sydney Institute of Criminology, 1978, p. 14). The assumption was and still is, that lawyers can do something about the issues of liberty, incapacity, and rights. The Report on the pilot scheme expressed the view: that the introduction of a patient representation service would significantly increase the attention paid to the civil rights of patients, would facilitate a greater understanding by staff and patients of the provisions of the Mental Health Act and would lead to a consideration of individual cases by magistrates (N.S.W. Health Commission, 1978, P. 8). The 1983 Act seeks to redefine the magisterial inquiry from a forum which has been procedurally vague, the purpose of which has been to rationalize the exercise of psychiatric power, into a judicial hearing which (on paper at least) would conform to the ideals of due process. Process and procedure, the 1983 Act seems to assume, will render professional judgements accountable, correct mistakes, and counter arbitrariness. While I agree that these are necessary and worthwhile aims, there is a need to closely examine the extent to which legal representation can guarantee them. This is not to suggest that lawyers should not be involved in the psychiatric admission process-rather, the point is that arguments about the necessity of their presence should be based on the history and politics of the situation in N.S.W., than on idealist assumptions. The recent developments in N.S.W. have generated the need for a clearer analysis of the work being done under the heading of patient representation.
Patient Representation -A Matter of Style? The debate surrounding legal intervention into the N.S.W. mental health system has largely been conditioned by American analyses, and there is little evidence of critical thought on the question of patient representation beyond that concerning styles of advocacy. That debate has been waged between two broadly defined models: the so-called adversarial and best interests approaches. While there are specific points of disagreement about how either approach is to be constructed, some indication of the nature of the debate can be gauged from the following selection. The best interests approach is based on the perception that the civil commitment proceeding is concerned with helping the person concerned. According to the Yale Law Journal:
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Many feel that the lawyer should join in seeing that his client obtains the help that the client would want if only he knew what is in his own best interest. If the lawyer instead fights commitment he will at times precipitate the release of an individual who needs hospitalization and who might consequently harm himself or the community. . . . Thus, many commitment lawyers take the position that counsel should oppose a commitment petition for a client only if he has determined in his own mind that the client should not be committed (Note, 1975, p. 1542). Supporters of the adversarial approach are critical of the paternalism inherent in the best interests view; they rely on what is presumed to be the traditional role of lawyers wherein: . . . lawyers resist allowing their perception of the client’s best interests to interfere with their advocacy of the client’s expressed desires, believing that their role is to advocate, and that the decision as to commitment should be left with the fact finder. This is the traditional notion that a lawyer’s function is to advocate the position that his client favours and to allow the client to make the ultimate decisions that must be made in litigation (Note, 1975, pp. 1542-43).
Not all arguments have attempted to draw the distinction between the issues so rigidly. Gordon posits a continuum of “delivery styles” to be adopted by lawyers, falling between a “strict instructions” approach, and a “patient welfare” approach. The former, though adversarial in nature: is not necessarily to be correlated with aggressive, partisan advocacy for, in theory at least, it can involve adopting a conciliatory rather than adversarial approach to an issue if that is requested by a patient (Gordon, 1981, p. 177). The patient welfare style is described as being “a more conciliatory stance” (Gordon, 1981, p. 177). As this brief review indicates, consideration of the position of lawyers in the civil commitment process has been characterized by a dichotomy between two supposedly conflicting models. Even attempts to be less rigid often tend to arrive at conclusions which are phrased in terms of the same dualism. For the purposes of theoretical development, this is unfortunate, for there are serious deficiencies in the construction of the dichotomous debates. As Hunt has remarked in another context, dichotomous arguments “have, as a necessary effect, a tendency to result in an unstable analysis which lurches between the polarities set up” (Hunt, 1981, p. 52). The further tendency for such arguments to reify abstract categories (Tomasic, 1985, p. 87) underlies the need to look more critically at the debate on ‘styles of advocacy.’ The critique presented here draws on a more general and extensive argument presented by William Simon, which discusses the ways in which the activities of lawyers are rationalized by the ‘Ideology of Advocacy’ (Simon, 1978). The
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Ideology of Advocacy, according to Simon, is based on four principles. Two are described as principles of conduct: neutrality (“the lawyer is expected to represent people who seek his help regardless of his opinion of the justice of their ends”); and partisanship (“the lawyer [should] work aggressively to advance his client’s ends”) (Simon, 1978, p. 36). The other two are described as foundation principles: procedural justice (“the notion that there is an inherent value or legitimacy to justify specific actions without reference to the consequences they are likely to promote”); and professionalism (“the notion that the law is an apolitical and specialized discipline and that its proper development and application require that legal ethics be elaborated collectively by lawyers in accordance with criteria derived from their discipline”) (Simon, 1978, p. 38). Simon’s agument provides a useful perspective from which to assess the debate on styles of advocacy. On a closer reading, the debate over the best interest and adversarial stances can be seen to converge on many aspects of the ideology of advocacy. Given that Simon’s argument is built on an ideal typology, I am not asserting that all arguments for a best interests or an adversarial stance simply share matching ideological ground. Nevertheless, there are important shared assumptions. Notions of professionalism certainly pervade both sets of arguments. There is little critical consideration, and much implicit acceptance, of the appropriateness of lawyers to civil commitment proceedings on both sides of the debate. Similarly, supporters of both sides rely, at least implicitly, on what Simon calls the principle of procedural justice. At its extreme, the adversarial model suggests that “when the client decides that she wants, the attorney should aid her in promoting that goal,” and that it is the court, or judge which is the “only proper party to decide what is in the ill person’s and the public’s best interest” (Andalman & Chambers, 1974, pp. 48, 49). On the other hand, the best interest stance, in its more idealized form, sees the lawyer acting as “fact-finder”, seeking to “improve the process of decisionmaking” (Brake& 1981, p. 80). Both models can thus be seen to place their faith (in different ways) in the inherent legitimacy of the judicial proceedings and the ideology of due process. There is, arguably, greater divergence on the first two principles of conduct (neutrality and partisanship). Even so, to the extent that both models suggest a separation of the lawyer’s purposes from those of his or her client, either through strictly following the client’s instructions, or by somehow elucidating an objectively defined best interest, both can be said to acknowledge the principle of neutrality. Perhaps then, the debate over styles of advocacy centres on the notion of partisans/zip. Yet even here proponents of both views would presumably agree that their client’s ends need to be advanced. Partisanship, as Simon defines it, is not in issue-the disagreement concerns how those ends are to be determined. And whilst this is a significant point of disagreement, it has tended to cover over a substantial and implicit agreement on many of the principles which Simon includes in his ideology of advocacy. This is because the debate, due to its polarized nature, has become increasingly reliant on idealist points of view. There is also evidence to suggest that the dichotomy is not necessarily maintained in practice. A similar debate has been waged in the area of child representation in family law matters, and it provides a useful comparison. A study
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conducted in 1978 showed that whatever a lawyer’s own conception of his or her role, it did not often carry through into his or her actuai practice. Whereas “more than half the attorneys volunteered a theoretical label for their role [ranging from advocacy to best interests] . . . every one of those attorneys took on responsibilities inconsistent with his characterization.” The conclusion was that the “abstract conceptions of the role . . . had only partial and sometimes misleading implications for practice” (Note, 1978, p. 1145-46). Further evidence exists in the mental health field: a 1977 survey of committal hearings by Hiday found that lawyers representing patients adopted an adversarial stance in less than half of contested cases. The study found that role confusion existed amongst representing attorneys as to the appropriate stance to adopt: counsel’s attitudes towards psychiatry, mental illness, and state mental hospitals appear to be important factors influencing the decision model which is followed (Hiday, 1977, p. 564). It would seem, then, that as the debate over appropriate lawyering roles has become more abstract, it has also had little connection with the practicalities of “lawyering.”
The Relationship Between Patient Representation and Psychiatric Practice 1 should stress that the preceding critique is directed at the dichotomous and idealistic nature of the general debate, rather than at any particular model subsumed within it. There is, though, an important result of looking at the similarities between the adversarial and best interest models: both approaches-via the ideology of advocacy-can be seen to maintain a dualism between law and psychiatry. This is most obvious in adversarial arguments, which require lawyers to actively pit themselves against psychiatric expertise, but it is no less fundamental to the best interest approach. That approach involves a demarcation of areas of expertise, perpetuating an assumption of distinctly legal versus psychiatric bodies of knowledge and practice. This dualism tends to overlook the vital point that within an institutional setting both lawyers and psychiatrists will ultimately be concerned with the exercise of power in an interrelated way. A stance which views psychiatrists exclusively as oppressive, alien, or authoritarian does not see that psychiatric power and legal power become related dialectical/y in the institutional setting. This, of course, is not how the fact of legal intervention appears. The establishment of psychiatric patient representation schemes appears as a state-sponsored legal challenge to the exercise of psychiatric power. The very presence of lawyers in the civil commitment process is viewed by many psychiatrists as an attack on their historically-established professional position (as the previously quoted newspaper editorial demonstrates). This reaction may well be justified to the extent that the introduction of lawyers does have some effect on psychiatric practice, however varied. This is shown, for example, in statistics on the effect of legal representation on committal rates (see, e.g., Sydney Institute of
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Criminology, 1978, p. 31). It can also confidently be predicted that the 1983 Mental Health Act will affect the way in which psychiatric evidence is presented to the magisterial inquiry. Yet this is only half the picture, because psychiatric practices will also inevitably affect the style and nature of legal intervention. In the long term, the continued operation and existence of a system of public psychiatry, in some form will be both affirmed and guaranteed by the introduction of what will, at one level, be a challenge to it (see Warren, 1982 for an extensive U.S. study). I should quickly clarify one point: I am not arguing that, in the long run, patient representation will simply legitimate the operations of the public psychiatric system. This would be to posit a simple one-way co-optation of lawyers by the mental health system, leaving no room to examine the possibilities that patient representation will both condition and be conditioned by the exercise of psychiatric powers. Of course in many jurisdictions patient representation has been reduced to “rubber-stamping” psychiatric diagnoses and decisions (e.g. Cohen, 1966), but there is nothing inevitable about this result. Furthermore, I suggest that this long term effect will not be greatly affected by the debate over styles of representation. Of course, consideration of styles will be important because, as with all dialectical relations, there are opportunities for development and change. Lawyers in the mental health setting can assume a developmental role (on matters such as admission policy, treatment, etc.), but through a dialectical relationship with psychiatry. What will be required is an appreciation and analysis of the specific institutional and ideological constraints within which any patient representation scheme is to be located. The concepts of power and sites will, I suggest, prove valuable in organizing such an analysis. Patient’s Legal Rights and Mental Health Reform As I have already suggested, the idea that the intervention of lawyers can achieve some reform in the operation of the mental health system sits uneasily beside the literature which stresses the controlling, de-politicizing effects of the lawyer-client relation in general. Cain has argued that lawyers are “conceptive ideologists”; that is, they translate everyday issues into a “meta-1angauge” which “is also the workaday language for certain state authorized adjudicators” (Cain, 1979, p. 353). Similarly, Abel has commented on the capacity of lawyers to define the agenda for achieving social justice in capitalist society (Abel, 1979). With regard to s.88(5) of the Mental Health Act, it could be said that lawyers in the N.S.W. mental health system have been given the task of translating and recasting patient demands into the ideologically and administratively acceptable language of ‘rights.’ The argument in favour of legal representation for psychiatric patients tends to insist on two things: that it should be a right in itself, and that it is also the most effective way of overseeing the implementation of other rights and reforms in the psychiatric system. However, the use of rights as a strategy for mental health reform has not been unanimously acclaimed. One criticism made is that no progress towards civil liberties, social justice, or a humane society can be achieved by a reliance on claims about legal rights. The ascription of legal
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rights, it:
it is said, legitimates
the prevailing
social order rather than challenging
. . . rights strategies do not provide a useful basis for those who would wish to transform the social position of the mentally ill-or any other group for that matter. On the contrary, they illustrate the limited conceptions held by many legal activists of the nature of law and legal mechanisms vis-a-vis other mechanisms of organizing, monitoring and transforming social provisions (Rose, 1985, p. 215).
The underlying concern of such criticisms is acknowledged here. Reform campaigns based on notions of rights can assume a pluralist view of the contemporary social order, and gloss over the difficulties inherent in ideas such as patient autonomy. But this should serve as a cautionary reminder about legal rights arguments, rather than as a reason for abandoning them altogether. The rhetoric of rights is an entrenched form of discourse with the state and its agencies: “it is part of our liberal, cultural, conceptual and political heritage” (Brown, 1984, p. 45). This does not imply an uncritical adoption of this discourse. Rights, as Jacoby argues, should be viewed dialectically: “they are both progress in freedom and progress in domination” (Jacoby, 1975, p. 113). Thus, for example, the right to treatment implies both the right not to be warehoused, and the right to be drugged. Within this dialectical view, it must be acknowledged that rights-based arguments do not carry their own guarantees of success. Indeed, it may not always be possible to predict the responses that they will evoke because, as Phil Brown has argued in the United States, patients’ rights arguments are the result of a conjuncture of economic, political, professional, and institutional factors. For this reason, “patients’ rights have been crucial even if they are now seen as very problematic” (Brown, 1985, p. 204). This means that the mobilizing potential of rights-arguments must not be ignored. As Brown argues, rights arguments have become significant in focusing attention on the issues of treatment and the political economy of mental health care; moreover, “the indirect influence of patients’ rights issues is a generalized critique of many basic assumptions of psychiatric theory and practice” (Brown, 1985, p. 205). To realize the opportunities inherent in any legal rights strategy they must be anchored to specific contexts rather than being discussed in the abstract. On the issue of deinstitutionalization, for example, advocates of a right to treatment in the least restrictive setting must take into account localized governmental and bureaucratic practices, as well as the fact that the significance of rationales such as community and community treatment vary both over time, and in different sociopolitical contexts. Recognizing the specific parameters of rights-based arguments in the mental health area is an important step in effectively mobilizing political activity and enabling those arguments to be translated into practice. Rights arguments, like legal representation, should not be regarded as selfsufficient. While the language of rights may be used in discourse with the state, this does not necessarily mean that everyday political activity should be constructed around that language (Gabel & Harris, 1982, p. 377). Other tactics and mechanisms for implementing and enforcing the demands inherent in rights arguments will also be required.
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Conclusion In examining the links between deinstitutionalization and mental health law reform in New South Wales, I have stressed that there is danger in fetishizing the Mental Health Act and the role of lawyers in the civil commitment process. The magisterial committal inquiry is only one site at which mental health law and practice is constituted. My argument is that patient representatives should understand that mental health law constitutes both a political and an ideological practice. It is political in that it organizes, institutionalizes, and represents the relations of power between various groups and individuals. Intertwined with this, is an ideological content-it embodies and fosters certain historically determined, professionalist views, attitudes, and practices. Effective patient representation also means looking at the links between legal representation and other practices. Beyond legal intervention in the mental health system there is a broader sphere of activity-a sphere wherein (to use the words of one worker in Bologna, Italy) “we must not struggle for better psychiatric care but for working conditions which do not make us animals by the time we go home” (Jaggi, Muller, & Schmid, 1977, p. 173). References Abel, R. L. (1979). Socializing the legal profession: Can redistributing lawyers’ services achieve social justice? Law and Policy Quarterly, I, 5-51. Andalman, E., &Chambers, D. L. (1974). Effective counsel for persons facing civil commitment: A survey, a polemic, and a proposal. Mississippi Law Journal, 45, 43-91. Australian Government Department of Health. (1978). Review of mental healrh care. Canberra: Policy and Planning Division, Monograph No. 2. Basten, J., & Disney, J. (1975). Comment: Representation by special advocates. Universitv of New South Wales Law Journal, I, 168-174. Bottomley, S. (1984a). Law and psychiatry: Aspects of the relationship in N.S.W. Australian Journalof Law and Sociefy, 2, 30-59. Bottomley, S. (1984b). Changes to N.S.W. mental health legislation: Some reasons for rationalisation. Legul Service Bulletin, 9, 23-25. Brakel, S. J. (1981). Legal aid in mental hospitals. American Bar Foundufion Research Journal, I, 21-93. Brown, D. (1984). A Critique of the Legal Service Bulletin. In D. Neal (Ed.), On /up, no/ on fop: Legal centres in Ausfralia 1972-1982. Victoria: Legal Service Bulletin Co-op Ltd. Brown, P. (1985). The transfer of care: Psychiatric deinsfitutionalisation and its aftermath. London: Routledge & Kegan Paul. Cain, M. (1979). The general practice lawyer and the client: Towards a radical conception. International Journal of the Sociology of Law, 7, 33 l-354. Claims that psychiatric patients are often treated badly. (1977, September 9). Sydne_v Morning Hera/d. Cohen, F. (1966). The function of the attorney and the commitment of the mentally ill. Texas Law Review, 44, 424-469. Cohen, S. (1977). Prisons and the future control systems: From concentration to dispersal. In M. Fitzgerald (Ed.), We,fare in action. London: Routledge & Kegan Paul. Edwards, 0. (1978, July 11). Letter to the editor. Sydney Morning Herald. Flaherty, B., & Hall, W. (1981). Psychiatric hospitalisation-An empirical study of involuntary and voluntary admission in N.S.W. Mental Health in Australia, l(6), 17-25. Foucault, M. (1979). Discipline andpunish. New York: Vintage Books. Freedom as a state of mind. (1986, May 23). Sydney Morning Hera/d, p. 12. Gabel, P., & Harris, P. (1982-83). Building power and breaking images: Critical legal theory and the practice of law. New York University Review of Law and Social Change, 1 I, 369-411. Gordon, R. (1981). Legal services for mental patients: Some Commonwealth developments. Infernational Journal of Law and Psychiatry, 4, 171-180.
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Ciostin, L. (1983). Contemporary social historical perspectives on mental health law reform. British Journal ofLaw und Society, 10, 47-70. Ciough. I. (1979). Thepoliticul economy of the welfare state. London: Macmillan. Hiday, V. A. (1977). The role of counsel in civil commitment: Changes, effects and determinants. Journal of Psychiatry and the Lu\v, 5, 551-569. Hunt, A. (1981). Dichotomy and contradiction in the sociology of law. British Journal of Law and Society, S(1). 47777. Jacoby, R. (1975). Social amnesia: A crilique of conformist psychology from .Adler to Laing. Sussex: Harvester Press. Jaggi, M., Muller, R., & Schmid, S. (Eds.). (1977). Red Bologna. London: Writers and Readers. Lennie, I., & Owen, A. (1983). Continuing crisis in health services. Community Heulth Studies, 7, 227-237. Moore, P. (197X). People as lawyers - Lay advocacy and self-help in the legal system. Brrrish Journal of Law undSociety, 5, 121-132. New South Wales Department of Health. (1983, March). Inquiry in/o heulth services for thepsychiutricalt_v ill and developmental/y disabled [Richmond Report]. Sydney: N.S.W. Department of Health. New South Wales Health Commission. (1978). Report IO the Ministerfor Health by ihe Legal Representation Commitfee. Sydney: N.S.W. Department of Health. Note. (1975). The role of counsel in the civil commitment process: A theoretical framework. Yrrle La+% Journul, 84, I540- 1563. Note. (1978). Lawyering for the child: Principles of representation in custody and visitation disputes arising from divorce. Yale Lnw Journal, 87. 1126-l 190. Rendalls, S., Owen, A., & Bottomley, S. (1984). Mental health law in N.S.W.: Benevolence. expediency or opportunity for change? Legal Service Bulletin, 9, 268-273. Rose, N. (1985). Unreasonable rights: Mental illness and the limit\ of the law. Jo~trnulofLu~vondSocief.v, f2, 199-218. Scull, A. T. (1977). Decarceration: Communit.v treatment und /he deviunt. New Jersey: Prentice-Hall. Shiraev, N. (1979). Psychiatric stotistrcs: Notes towards u history of public psychiatry in W.S. U: Sydney: Health Commission of N.S.W., Division of Health Services Research Report No.7911. Simon, W. H. (1978). The ideology of advocacy: Procedural jurtice and professional ethics. Wisconsin LUM Review; 1978, 29-144. Sydney Institute of Criminology. (1978). Rights of the mentully ill: Represenfingpatients at rnentul health uct Ieurnings. Sydney: Faculty of Law, University of Sydney. Thomson, A. (1981). Lull, and the social sciencesThe demise of /ego/ utttonomy. Paper presented to Conference on Critical Legal Scholarship, University of Kent at Canterbury. Tomasic, R. (198.5). Towards a theory of legislation: Some conceptual obstacles. Stattrte Low Review Sut77ruer, 83- 105 Vcrdun-Jones, S. (19X6). The dawn of a “Ncvv Legalism” in Australia? The Nevv South Wales Mental Health Act, 1983 and related legislation. Internutronul JournulyfLuw and Psychiutry, 8. 95-l 18. Warren, C. A. B. (1982). The court of lust resorl: Mentut illness cmd the Iuw. Chicago: University of Chicago Prey\. Wickham, G. (1985). The importance of specific regulutions for power anulysis. Paper presented to Third Australian Law 8r Society Conference, Canberra College of Advanced Education, Canberra. Young, L., Bi Reynolds, I. (1980). Evuluation of se/e~tedp.~_~~c/~iutri~~ admission wards. Sydney: N.S.W. Health Commission, Division of Health Services Research.