People branded by the media and authorities as “bad or mad” are often unwell, says Professor Bernadette McSherry. As director of Monash University’s new Centre for the Advancement of Law and Mental Health, she says many sufferers of severe mental illness end up in involuntary treatment programs or jail. But a public mental healthcare system that is more proactive could make all the difference, helping sufferers avoid the potential slide into self-harm or crime.
Bernadette is a passionate advocate for better mental health systems. She reviews healthcare and legal systems to identify possible reforms. “There are certainly some people who need to be supervised in some way, and some who need to be detained,” she says. “However, if the vast majority of those suffering from a mental illness were able to access proper and adequate treatment, then many community protection issues would take care of themselves.”
In one of two major research projects, Bernadette is examining Australia’s state and national mental health laws for involuntary detention and for sentencing of mentally ill offenders. This project is funded through an ARC Federation Fellowship and is due for completion in December 2012. “Our research indicates that it is very difficult for individuals with mental illnesses to access adequate care and that the legal focus is on involuntary treatment rather than proper treatment in the community,” she says.
In criminal law, there is a trend towards detaining some categories of offenders (mainly sex offenders) after their sentence ends. Bernadette says the label ‘sex offender’ can apply as much to a flasher as to a violent rapist, and that it is a little too simplistic to say everyone should be locked up and the key thrown away.
In civil law, it is possible to commit people with mental health problems for involuntary treatment if they are believed to pose a risk to themselves or those around them. However, Bernadette believes detention rates would lessen significantly if people with mental health disorders received proper, proactive treatment in the community. “A lot of people are turned away from the system, or simply don’t want to get involved because they are worried they will be treated against their will.”
She says the right to adequately funded mental healthcare may be argued under the new United Nations Convention on the Rights of Persons with Disabilities, which came into force in 2008. One important provision places responsibility on the state to ensure citizens enjoy the highest attainable standard of health without discrimination on the basis of disability. This means early identification and intervention.
Bernadette’s second project, undertaken with Bond University’s Professor Patrick Keyzer, compares Australia’s approach to preventive detention of sex offenders with approaches overseas. Examples include orders of lifelong restriction for high-risk offenders in Scotland and treatment programs for sexually violent predators in the US. The findings will be released mid-2011.
With qualifications and experience in law, psychology and political sociology, Bernadette is the ideal leader for the nascent Centre for the Advancement of Law and Mental Health (CALM). “The Monash Faculty of Law is renowned for teaching and researching not only what the law is, but how it could be improved to better serve citizens in modern times.”
Bernadette says her involvement as a legal member of the Victorian Mental Health Review Board has provided a practical basis for how mental health issues and the law intersect. The board primarily reviews involuntary treatment and detention orders for people considered at risk of a deteriorating mental condition or of harming themselves or others.
