Keeping Psychiatry's secrets from the UN

On January 17th this year, I mentioned that the UN Subcommittee on the Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (UN SPT) was scheduled to visit Australia in late October last year. Under the OPCAT Accession Act of December 2017, relating to the Optionial Protocol to the UN Convention Against Torture, all "places of detention" in this country are required to provide access to the UN inspectors. People detained under state mental health acts (MHS) qualify as "detained persons" for the purposes of the OPCAT Act, and the Commonwealth legislation relating to international treaties overrides state laws. It is normal practice that the SPT gives ample warning of its visits, but does not give its itinerary beforehand. The inspectors simply arrive at a place and requests entry. On Saturday, October 22nd, the Subcommittee arrived at the mental health unit of Princess Alexandra Hospital, in Brisbane, and was refused entry.

Earlier this year, I lodged an application under the Qld Right to Information Act for a copy of the reasons why this happened. The material arrived last week, 31 pages of heavily redacted material, a lot of which is simply duplicates or empty forms. The opinions and background etc. were largely compiled by a division of Qld Health Dept called Clinical Excellence. There were no telephone file notes, no records of conferences, minutes of meetings, etc., only copies of official letters, blank application forms and so on. It was more or less par for the course for this sort of request.

On October 11th last year, Ms Yvette D'Ath, Minister for Health in the Qld government, wrote to the members of the UN SPT advising them that they would not be allowed to enter any wards operated by Queensland Mental Health Services (MHS). The reason given was that there was no provision under the Qld Mental Health Act of 2016 (MHA) to permit the visit to what are called authorised mental health services (AMHS) (i.e. locked facilities). She explained:

... there are legislative constraints under the Mental Health Act of 2016 which place significant limitations on the UNSPT's ability to facilitate the visit to AMHSs under current law. These constraints exist because the MHA (2016) was drafted with a focus on the safety and privacy of people with severe mental illness and associated cognitive impairments, and therefore appropriately restricts inpatient unit access to certain categories of visitors. The legislation does not contemplate access to patients by entities such as the UNSPT, and none of the permitted categories of visitors to AMHSs under the MHA (2016) lawfully permit the UNSPT access to AMHSs. Work is ongoing to explore how to address these barriers ... The primary constraint is that the department is unable to permit the UNSPT to physically enter the inpatient unit of an AMHS. However, S.284 of the MHA (permits telephone and videoconferencing). That would require the patient's consent.

The rest of the material was largely irrelevant, including consent forms for patients to sign to allow the UNSPT to visit them. There is no evidence that those forms were distributed or that patients were told of the impending visit by the Subcommittee so that they could request a private consultation, as they are entitled to under the Commonwealth OPCAT Act.

Each of the redactions in the 31 pages is marked "S.73, irrelevant information." Remarkably, all the important stuff is marked irrelevant. For example, where you might expect a list of the sections of the Mental Health Act setting out how and why the Subcommittee was banned, it's "irrelevant." The (very brief) comment on the legal advice from the Crown Law Dept was redacted as irrelevant, even though that is the central fact in any of this: Did Qld MHS have the legal authority to block the UNSPT's visit or did it not? If there are " legislative constraints under the MHA," what are they? A letter from the Qld Attorney General to the Minister of Health, dated September 29th, requests the Minister's "... formal cooperation to manage the visit by consent under existing legislation." No details are provided to show where the MHA prevents visits but he opined: "I consider this approach is appropriate..." The Minister replied on October 11th (Queensland specialises in leaving things to the last minute), saying they would cooperate to the extent of allowing staff and patients to meet the Subcommittee but there is no suggestion, or evidence, that any such cooperation occurred. And certainly no reference to the sections of the MHA that need changing so the same inconvenience doesn't occur next time.

I spent about 25 years in public services, including three states and the Commonwealth, so I know all about bureaucratic games. I do not have the slightest doubt that this whole exercise is just an elaborate game of cover up. Let's look at what the Qld MHA (2016) actually says. Of course, it doesn't say anything about UN Subcommittees, but it does say a lot about the office of the Chief Psychiatrist of the Mental Health, Alcohol and Other Drugs Branch of Qld Health Dept. Above the chief psychiatrist there sits a Director of MHAOD Branch, currently Assoc Prof John Allan, who was previously chief psychiatrist and sometime president of the RANZCP. Above him are various Assistant Directors (including the gloriously-named Clinical Excellence) and finally a Director General of Qld Health. All of these people and others of equivalent status in various departments were intimately involved in this matter as it had the potential to cause considerable international embarrassment.

Chapter 4 of the MHS is devoted to defining the role of the Chief Psychiatrist as responsible for the daily running of MHS. S.302 specifies that the Chief Psychiatrist has considerable (and flexible) powers:

S.302: Independence of chief psychiatrist. (1) In performing a function or exercising a power, the chief psychiatrist is not under the control of the Minister or another person.

One of the functions of the chief psychiatrist is to inspect his empire but there's a lot of it spread over a million square kilometres, so inspectors can be appointed to do the job. S.308 sets out how this is to be done, why and by whom, ending with:

S.308 (4): To remove any doubt, it is declared that an investigation under Subsection (1) may include an investigation about any matter relating to the treatment and care of any patient in an AMHS. (emphasis added).

S.555 defines who can be appointed as an inspector. These include (1) "public service employees of the Health Department or a health service employee or others," (2) and "a health practitioner, lawyer or another person" as long as those people are (3) appropriately qualified. There is no limit. It doesn't say they have to be residents, or citizens, or anything, just qualified.

What can they inspect? Essentially, they can inspect anything covered by the Act, which sets out its aims right at the beginning. The Preliminaries to the Act specify that the human rights of patients must be safeguarded, treatment is to be provided in the least restrictive environment with respect for human worth and dignity, and so on. The usual stuff. So I would have expected that ensuring that Qld mental health facilities are fully compliant with our international duties under the august UN Convention Against Torture would be right up there in the list of duties and responsibilities of the chief psychiatrist. If they're not, then the Department should have pulled out all stoppers to explain to all and sundry exactly why they're not. They haven't done so. They haven't said anything, not a word, about why the UN inspectors couldn't do their job of inspecting "places of detention" to make sure none of the inmates felt they were being tortured, degraded or othewise inhumanely treated.

I'm sure the Minister for Health expected everybody to believe her statement that "... there are legislative constraints under the Mental Health Act of 2016 which place significant limitations on the UNSPT's ability to facilitate the visit to AMHSs under current law." However, she didn't say what those constrainst are, and I can't find any in the MHA that spell out why the Subcommittee was locked out. More to the point, there is ample provision under the Act for the chief psychiatrist to have appointed the very distinguished and qualified members of the Subcommittee as inspectors and let them in.

And one more minor point: Qld Health had just under five (5) years to get ready for this, dating from the time the OPCAT Accession Act was passed in December 2017. Bear in mind that a few years ago, the president of the Qld Mental Health Tribunal was obliged to resign after it was discovered that a lawyer he had appointed to the Tribunal was not qualified to sit. This meant that several thousand people had been detained and treated against their will because the law had not been followed. Total panic. If they had been allowed to sue for unlawful detention and medical assault, the bill would have been in hundreds of millions but the Government plugged the leak. In an emergency amendment, all those people affected were deemed to have been lawfully detained etc. Phew. Wriggled out of that one, didn't we! But it was clearly too difficult for our (remarkably well paid) legislators and (even higher paid) health bureaucrats to check to see if their department was compliant with our international treaties.

For myself, I don't believe the Minister's statement to the UN Subcommittee that such "legislative constraints" exist or, if they do, there was no way around them. Bearing in mind that all mental health services in the country were warned nearly six years ago (coincidentlly, by me) that closed psychiatric wards fell under the purview of the OPCAT, why did Qld MHS do nothing to ensure that when the inspectors arrived, they would be able to do their job? All it would have taken was a letter from the Minister to the chief psychiatrist saying there was no problem with appointing the visitors as inspectors under the Act and letting them get on with their job. Instead, Qld Health have spent tens of thousands of dollars crafting a spurious response, knowing that the Subcommittee would never be able to wade through all the bureaucratic fluff to get to the truth. But this raises the obvious question: What's with all the secrecy? What were Qld Health trying to conceal?

So there you have it. Cue a gaggle of (highly paid) very senior public servants and a few ministers, hands clasped, earnestly shaking their heads with worried look and saying in chorus, "It's just so sad, you've come all this way and look what happens, can't let you in. We'll try to do better next time. Have a nice trip home." It is indeed sad, so I'll do the right thing and let the UN Subcommittee know that after all, there may have been a way for them to do their job and not waste their trip.

As for that expensive body, "Clinical Excellence Qld," nearly half a century ago, the professor of medicine at Stanford University (a fairly prestigious post, I'd say) called out the growing trend of people and places referring to themselves as "excellent." Writing in Hospital Practice in 1976, Dr Halsted R Holman pointed out that in the US, health costs were rising far faster than inflation; health statistics such as longevity, causes of death, maternal and infant mortality rates (the most sensitive of all indicators) were static or declining; iatrogenic illnesses were rife; there were too many pointless but expensive tests; too many expensive operations given to people who didn't need them, meaning those poor people who did need them missed out; and institutional medicine showed no interest in the diseases of the poor or in industrial or environmental contributants. Oh, and malpractice claims were going through the roof.

All this talk of excellence, he said, was a deception, a myth. Excellence means just that: it means moving ahead in search of improvement while keeping up the highest standards across the board. If Qld Health believes it is practising "excellent" psychiatry, why didn't they throw open the doors to the locked wards and hustle the visitors in before they changed their minds and went to the beach instead? On the other hand, maybe they should just rename the office "Clinical mediocrity" because there is every reason to believe that is what was being concealed, and no reason whatsover to believe the Minister when she said "legislative constraints" prevented the visitors doing their job.