Are some more equal than others? Challenging the basis for prisoners’ exclusion from Medicare

A mixed funding approach can help meet the urgent requirement for a level of health care in prison commensurate with need and equivalent to community standards

Consistent with global literature,1 prisoners in Australia experience profound health disparities relative to those who have not been incarcerated, with a disproportionate burden of mental illness, chronic and communicable diseases.2,3 Many prisoners have complex histories of disadvantage encompassing family violence, unstable housing, limited education, unemployment and economic adversity. Risky health-related behaviours including smoking, illicit drug use, harmful alcohol consumption and unsafe sexual practices are common in incarcerated populations.2

Correctional settings are uniquely placed to detect health problems, initiate care and promote health in a way that is unlikely to occur in the community, with important public health implications for the communities to which prisoners return.4 It is paradoxical, therefore, that prisoners are excluded from Australia’s universal health care scheme — Medicare — while incarcerated. Instead, health care for prisoners is transferred to state and territory government departments for the duration of their incarceration.

Some of Australia’s peak health and medical advocacy groups have criticised this exclusion, arguing that it transgresses human rights, results in suboptimal care, and perpetuates the cycle of ill health and disadvantage.5,6 Although these groups have called for reform to the legislation that underpins this exclusion, a way forward has not been clearly articulated. In this article, we outline the legal basis for prisoners’ exclusion from Medicare, articulate key arguments for reform and offer some pragmatic next steps, informed by an understanding of the legislation and an appreciation that wholesale replacement of prison health services with Medicare is neither workable nor desirable.

The evolution of Medicare — the basis for prisoners’ exclusion

Australia’s universal health care system, originally called Medibank, was introduced in 1975 by the Whitlam Labor government in response to widespread dissatisfaction and inequities caused by the previous voluntary health insurance scheme.7 Following numerous reviews and alterations, the system was reincarnated in 1984 as the Medicare Benefits Scheme (MBS).8 The Pharmaceutical Benefits Scheme predates Medicare, with some benefits first made available in 1948. Today, these two taxpayer-funded schemes, collectively known as Medicare, are centrally administered under the Health Insurance Act 1973 (Cwlth).

Until the introduction of Medicare in the mid 1970s, regulation of health was not a federal government power, and an amendment to the Constitution was required to make the federal system possible. The first years of constructing and implementing Medicare revealed the enormous economic burden that it would be for the government. In 1976, a review committee was established to “trim the fat”, and the resulting legislative amendments were aimed at carving out situations in which Medicare subsidies would not apply if there was another source of funding.9

An amendment in 1976 to the Health Insurance Act — s 19(2) — states that where health services are being provided by, on behalf of, or under an arrangement with any government entity (whether federal, state or territory), Medicare will not be available unless the Minister for Health or his/her delegate grants an exemption to this exclusion. As state-funded entities, prisons fall under this domain and thus, the legislation operates on the assumption that prisoners are excluded from Medicare because the state or territory in which they are incarcerated provides equivalent services. It also presumes that allowing access to Medicare for prisoners, who are provided with care at the expense of state or territory governments, would either constitute double dipping, or allow states and territories access to federal funds for an area that should be their economic burden to bear.

Is equivalence a reasonable assumption?

Health care in Australian custodial settings is guided by the concept of community equivalence, as outlined in numerous national and international frameworks.5,10 In principle, this means prisoners are entitled to receive the same level of access and quality of health care as the general population. In reality, however, persistent underinvestment in health services means that prisoners may miss out on certain treatments and medications.11 While the complexity of governance and funding arrangements in prisons means that it is often difficult to determine whether equivalence of care has been achieved,2 there are a number of key areas in which states and territories are failing to meet their obligations. Below, we consider two examples whereby the lack of access to Medicare affects prisoners’ health.

The Medicare Health Assessment for Aboriginal and Torres Strait Islander People (MBS item 715) is designed to target the ongoing health needs of Indigenous people who experience earlier onset and more severe progression of chronic illnesses than non-Indigenous Australians. Prisoners’ effective exclusion from Medicare means that neither prisoner health services nor community organisations that provide health services to Aboriginal and Torres Strait Islander people in prison can claim Medicare billing for this item. We know of no equivalent, culturally acceptable health assessment delivered in prisons in Australia, despite a well recognised need for Aboriginal-specific justice health services.12

Despite prisoners having some of the highest rates of mental illness of any population group, there is increasing evidence that prisons do not have the resources to address the extent of need. In the community, Medicare rebates are available for up to 10 allied mental health services in any one calendar year, with additional rebates available for group-based therapies. In prison, limited mental health resources are typically directed to those with the most severe mental health disorders and psychotropic medications are the mainstay of treatment for the majority.2 Unlike Medicare-subsidised schemes in the community, most prisoners have limited access to ongoing counselling and other individual therapeutic approaches, particularly for the treatment of common mental disorders, such as depression.

Exemptions to exclusion from Medicare — the equity argument

Parliamentary documents show that the Health Minister’s power to waive the Medicare exclusion was explicitly included in s 19(2) of the Health Insurance Act so that governments could make amendments if the exclusion was deemed to cause disadvantage.9 In practice, the Commonwealth has been willing to grant exemptions in cases of clear and demonstrated need. Two main groups of exemptions exist.

The first applies to Commonwealth-funded Aboriginal Community Controlled Health Services (ACCHSs). While the Act states that Medicare entitlements do not apply to services already funded by the Commonwealth, an exemption was granted in recognition of the gap in services between ACCHSs and mainstream primary care. The Inala Indigenous Health Service in South East Queensland also has an exemption. This service is a state-based primary care practice funded by Queensland Health and was granted an exemption in 2006, allowing services to be rebated through Medicare.13

Similarly, in 2006, the Council of Australian Governments (COAG) implemented the Improving Access to Primary Care in Rural and Remote Areas (s 19[2] Exemptions) Initiative. The COAG exemptions are open to eligible state funded health organisations that operate in areas with small populations (< 7000) with identified health workforce shortages. Recognising that state-funded facilities in small rural and remote towns provide primary care, the COAG exemption was granted to permit these organisations to bill Medicare for non-admitted, non-referred services.14

These precedents demonstrate the willingness of Commonwealth governments to permit access to Medicare if the ability of a health service to adequately care for the needs of a community was curtailed by the exclusion; a situation that clearly exists in prisons. The current exemptions all share a common theme: an expressed intention to ensure that all Australians have access to appropriate and quality health care, regardless of their circumstances. All of the current exemptions were granted in the last years of the Howard Coalition government under the then Minister for Health and Ageing, Tony Abbott.

Reforming funding for prisoner health care — a way forward

Legal action on the subject of prisoner health care has at times been successful, and has prompted meaningful change, such as access to condoms in prisons (Prisoners A-Xx Inclusive v State of New South Wales [1995] NSWSC 109). It has also been used in individual cases, such as Allan Petit v State of New South Wales [2012] NSWDC 105, where the failure of a New South Wales prison authority to inform a prisoner that he tested positive for hepatitis C after several blood tests was deemed to have deprived him of the opportunity to receive treatment and potentially prevent further transmission. Legal action in Castles v Secretary of the Department of Justice [2010] VSC 181 was successful in granting a female prisoner serving a term in a minimum security facility leave to access in-vitro fertilisation before she reached the age limit in Victoria. However, in relation to prisoners’ exclusion from Medicare, the issues are more complex. The legislation is clear: state and territory authorities are responsible for prisoners. Legal action against the responsible state government would not resolve the issue when the problem lies with federal legislation.

The Health Minister has the power, under the Health Insurance Act, to grant an exemption that would end prisoners’ exclusion from Medicare, paving the way for rebates to be claimed for prison-based health care services in certain circumstances. In an arrangement similar to that enjoyed by other state-based services that operate under s 19(2) exemptions (eg, Inala Indigenous Health Service), this would allow prisons to retain their existing health service delivery model but to enhance service delivery through access to certain Medicare items. Costs incurred by Medicare would be minimal. As an example, we estimate the cost of delivering the Indigenous-specific health assessment to every Indigenous prisoner in Australia in any one year would be less than 0.01% of the annual $20 billion Medicare budget (based on the current rebate of $212.25). Given that the focus of the health assessment is on disease prevention in Indigenous populations, combined with evidence that uptake in the community is poor among those most at risk,15 delivering this service in prisons has strong cost-effectiveness credentials. We are not aware of publicly available data comparing per capita expenditure on prison-based and community health care, although such information would inform the equivalence debate.

Cost sharing between the states and territories and the Commonwealth to achieve equity in prisoner health care is not new and has been debated by public health policy advocates in Australia for over a decade. What has emerged in the interim is evidence that prisons have substantially underinvested in health care, often because services are too expensive to deliver without access to Medicare rebates. Our proposal for a mixed funding model aligns with current government policy, whereby scarce health resources can be directed to where they will be most effective in improving the health of all Australians.

News briefs

Testing zero-gravity genomics in “vomit comet”

Nature reports that geneticists from Johns Hopkins University have successfully performed genetics experiments onboard NASA’s reduced-gravity aircraft — known as the “vomit comet” — to see whether astronauts will be able to sequence their own DNA during future long-term spaceflights. “The researchers tested two key tools in zero-gravity: one might aid long-term storage of genetic material; another is a small, transportable genetic sequencer”, known as a MinION. They also tried three pipetting methods on their flights — best results came when they used a small plunger inside the pipette, which touches the sample directly, ensuring that no air gets in. “And the pipette’s tip is small enough to avoid ruining the surface tension, which would let fluid escape up the tube.” One of the researchers, Andrew Feinberg said: “I really have to give NASA huge credit in allowing us to do this”, he says. “They’re very curious people. They really want to know.”

Taking off protective clothing spreads germs

A new study in JAMA Internal Medicine shows 46% of carefully removed protective clothing still showed contamination with a fluorescent lotion used to simulate germs or other dangerous matter, The Washington Post reports. “Researchers set up a simulation that involved asking doctors, nurses and other health-care personnel at four hospitals to put on their standard gowns, gloves and masks and smear themselves with [the lotion]. After the participants carefully removed the protective equipment as they usually would the researchers searched their bodies with a black light to see whether any lotion was transferred. Both participants and researchers were surprised to find contamination in a high number — 46% — of the 435 simulations.” The researchers recommended that “educational interventions that include practice with immediate visual feedback on skin and clothing contamination can significantly reduce the risk of contamination”.

Mexico’s soda tax produces drop in sales

Two years after it was passed into law, Mexico’s so-called “soda tax” is showing solid signs of reducing sales of sweetened drinks, reports The New York Times. “Preliminary data from the Mexican government and public health researchers in the United States finds that the tax prompted a substantial increase in prices and a resulting drop in the sales of drinks sweetened with sugar, particularly among the country’s poorest consumers. The long-term effects of the policy remain uncertain, but the tax is being heralded by advocates, who say it could translate [to other countries] … It cost bottlers a peso for every litre of sugar-sweetened drinks, which amounts to about a 10% price increase, a substantial jump. Because it was applied to distributors, any resulting increase would show up on list prices.”

Patient tweets give insights into hospital experiences

A study published in The BMJ collected more than 400 000 public tweets directed at the Twitter handles of nearly 2400 hospitals in the US between 2012 and 2013, FierceHealthcare reports. “They then tagged 34 735 patient experience tweets directed at 1726 hospital-owned Twitter accounts, and broke them down by sentiment (positive, neutral, negative) and then put them into topical categories, such as time, communication and pain.” Lead researcher Jared Hawkins from Boston Children’s Hospital said: “We were able to capture what people were happy or mad about, in an unsolicited way. No-one else is looking at patient experience this way because surveys ask very targeted questions. Unsurprisingly, you get back very targeted, narrow answers.” The data are “suggestive and highlight Twitter’s possible use as a way to supplement … surveys to improve quality.”

Abortion law in Australia: it’s time for national consistency and decriminalisation

Current Australian abortion laws continue to disadvantage many women

It is almost 7 years since abortion was decriminalised in Victoria, where a doctor can now terminate a pregnancy at up to 24 weeks with the woman’s consent, and after 24 weeks with the agreement of a second doctor. This change has not resulted in increased numbers of abortions, which have remained stable over many years.1 Earlier, in 2002, the Australian Capital Territory had removed all criminal sanctions for abortion. Abortion was decriminalised in Tasmania in 2013; here a doctor may perform an abortion at up to 16 weeks with the woman’s consent, and after 16 weeks with the additional agreement of a second doctor. In all remaining Australian jurisdictions, a patchwork of differing abortion laws operate. Only in the ACT has regulation of abortion been removed completely from criminal law.2 These legal inconsistencies have significant ramifications for the access of Australian women to abortion.

Meanwhile, developments move apace in our understanding of fetal health, and in the diagnosis of fetal abnormality. Medicare-funded diagnosis of fetal abnormality is now routinely offered to all pregnant Australian women — with the implication that a woman may choose to terminate the pregnancy if a serious abnormality is detected. The rapid development of non-invasive prenatal testing (NIPT) — a high-level screening approach that analyses cell-free fetal DNA in the maternal bloodstream — will lead to increasing information about the health of the fetus becoming available to women and their partners very early in pregnancy, allowing earlier and safer termination of the pregnancy, should this be their choice.3 Greater awareness of the risks and social costs associated with multiple pregnancies has led to the selective reduction in the number of fetuses carried to term in such pregnancies, in order to maximise the prospects for a healthy birth.4

Abortion laws, however, have not kept pace with these developments.2 Fetal abnormality is specifically discussed in the legislation in Western Australia, South Australia, Tasmania and the Northern Territory, and covered by the decriminalisation of abortion in Victoria and the ACT; in practice, however, late abortion is restricted by health regulations in WA, SA and the NT. In Queensland and New South Wales, the law does not refer to fetal abnormality at all. The result of these differences is continuing and extensive abortion “tourism” from all Australian states to Victoria, and overseas, in the face of barriers to access to abortion.2

Barriers to access

Although mifepristone is being used in accredited hospitals throughout Australia for second trimester abortions on the grounds of fetal abnormality (and many private practitioners and clinics also use it for early medical abortion), access to the drug is very difficult for rural women, especially in SA and the NT, where, by law, abortion can only be performed in designated hospitals.2

Where services are provided, the access of women to these services is often hindered by verbal and sometimes physical harassment outside clinics. Attempts to curtail protesters’ activities have, to date, been unsuccessful, generally because of the protesters’ implied rights to freedom of political communication. To address this problem, Tasmania introduced mandated exclusion zones around clinics in 2013, prohibiting a range of behaviours “in relation to terminations” within 150 metres of an abortion clinic.

The High Court of Australia has provided a two-step test to determine whether the implied right to freedom of political communication has been invalidly curtailed by a particular law. Step one assesses whether the law effectively burdens communication about the federal government or political matters. In those cases where it does, step two requires a determination on whether the law remains valid because it is reasonably appropriate and adapted to serve a legitimate end. Constitutional law scholars generally agree that the Tasmanian provision can withstand any High Court challenge.5

While doctors have the right to conscientious objection to performing an abortion, this objection should not restrict the access of women who consult them to procedures they need. Victorian abortion law reflects this balance, requiring the objecting doctor to refer the woman to a health practitioner who is known to have no conscientious objections to abortion.

Another challenge is the lack of a national data collection of abortion statistics that would assist in ensuring the delivery of appropriate abortion and family planning services, and enable policy makers and law reform agencies to track the effects of changes in law and policy on abortion practice. While statistics are collected in SA, WA and the NT, only the figures for SA are publicly available. This lack of statistics also means that figures for interstate abortion “tourism” are imprecise.

The Victorian review of abortion regulation

The most comprehensive review of abortion regulation was undertaken by the Victorian Law Reform Commission (VLRC) in 2007–2008. The Victorian parliament responded to the VLRC report by not only decriminalising abortion but also by introducing reforms that place the responsibility for decision making with the woman, or the woman and her doctor, and that for service availability with the medical profession; that is, by regulating abortion in the same way as other medical procedures. Together with the inclusion of the Tasmanian anti-harassment provision, the Victorian legislation might be seen as providing a viable model for the rest of Australia.

In 2015, there is an urgent need for legislative uniformity across Australia so that the law is in step with modern medical practice, and so that women, regardless of where they live, have equal access to abortion services.

[World Report] Profile: Southern Africa Consortium for Research Excellence

That diseases need to be studied in their local environment, is not lost on Malawi-based clinician–scientist, Moffat Nyirenda, and director of the Southern Africa Consortium for Research Excellence (SACORE). At SACORE, he strives to strengthen the region as a robust research base so that communicable and non-communicable diseases (NCDs) can be rigorously studied in the local setting.

Car technology can make zero road toll a reality: AMA President

Advances in car safety technology mean achieving a zero road toll is now within the nation’s grasp, AMA President Professor Brian Owler has told a road safety conference.

Urging government and consumers to demand that the latest life-saving equipment be fitted as standard to all new cars, Professor Owler told the Australasian Road Safety Conference on the Gold Coast that although motorists needed to drive with greater care, the widespread adoption of proven technologies that improved car safety and mitigated human error was “the future of road safety”.

“It is the game changer that mitigates our human faults,” he said. “It is the tool we have to truly move towards zero fatalities and serious injuries on our roads.”

Earlier this year the AMA and the Australian New Car Assessment Program (ANCAP) jointly called for autonomous emergency braking (AEB) – in which the brakes are automatically applied if the driver fails to take action to avoid an impending collision – to be fitted to all new cars.

Evidence indicates the technology cuts the incidence of rear-end collisions by more than 38 per cent.

Professor Owler, who is the public face of New South Wales’ successful Don’t Rush road safety campaign, told the Conference that developing safer cars did not lessen the need to improve driver behaviour.

He took particular aim at what he saw as societal acceptance of risky behaviour on the roads.

“There are cultural issues, and even rites of passage, that make some young people think that speeding and disobeying the road rules is something tough, something cool or something to be admired.

“There are no survivors of road trauma who think this way.”

The AMA President said compulsory seatbelt and drink-driving laws, complemented by education and awareness campaigns, had shown that modifying driver behaviour was possible, though the process was lengthy and difficult.

And, he added, improving driver behaviour and choices did not eliminate the capacity for human error, which contributed to 90 per cent of crashes.

Professor Owler said people should not die, or endure life-long pain and impairment, because of a split-second mistake, which was why there should be widespread adoption of proven life-saving technology in cars.

Car companies are fitting AEB as standard equipment in Europe, the United States and Japan, and the AMA President said there was no reason why Australia should be left behind.

There have been objections that making AEB mandatory will increase the cost of new cars – industry estimates an additional cost of up to $200 per vehicle.

But Professor Owler said this was little price to pay for technology that would save lives, and asked why Australian life should be valued any less than one in Europe or North America.

“Australians,” he declared, “should be driving the safest vehicles on our roads”.

ANCAP aims to pressure car companies to fit AEB in Australia vehicles by making it impossible from 2018 for a car to get a five-star crash rating without the technology.

Professor Owler said consumers needed to exert similar pressure.

“The fastest way to have vehicles with these features as standard is through consumer demand,” he said, urging large fleet purchasers in particular to demand advanced life-saving equipment as standard in their vehicles.

The AMA President said it was not good enough to aim simply at reducing road fatalities and injuries.

Advances in technology meant the elimination of road trauma was a practical goal.

“There is no acceptable number of deaths, as there is no acceptable number of serious injuries,” he said. “Towards zero is not an aspirational target. For Australia, we must make zero the reality. We have the ability to do this.”

Adrian Rollins

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Do all doctors need to meet the same CPD requirements for General Registration?

There are many reasons, apart from retirement, why a medical practitioner may choose to reduce their scope of practice or limit the time they work at various points through the course of their career.

A doctor with a young family might want to reduce their contact hours, while a medical advisor employed by government or a private provider may seek to ‘keep their hand in’ by practising half a day a fortnight. Even practitioners who have retired might want to continue to undertake activities covered by the definition of practice, such as writing prescriptions and referrals for themselves and their family.

This is a complex issue that AMA policy committees debated long and hard during 2010 and 2011 when medical practitioner registration categories and continuing professional development (CPD) requirements were being reviewed by the Medical Board of Australia.

At the time, the Federal Council concluded the AMA could not continue to advocate for a registration category for retired medical practitioners solely on the basis that they would be writing prescriptions and referrals for themselves and their family outside of a formal doctor-patient relationship.

It was agreed that anyone involved in direct patient care, or acting in a capacity that would impact on safe patient care, and who wants to identify themselves as a medical practitioner, should hold full registration and meet full CPD requirements.

As well, it was noted that medical practitioners in primarily non-clinical practice roles generally have a direct impact on practising doctors and, as such, should also meet the same CPD requirements as practitioners engaged in direct clinical practice.

The Medical Practice Committee examined this issue again earlier this year following ongoing requests from senior members, and have advised Federal Council to maintain the AMA’s earlier position, proposing policy to formalise the position.

Subsequently, Federal Council has formally resolved that:

the AMA supports the registration categories in the Health Practitioner Regulation National Law for medical practitioners, noting that the General Registration category affords medical practitioners flexibility to limit their scopes of practice and/or their amount of practice from time to time during their professional life, and in transition to retirement; and
the AMA considers that for the General Registration category, 50 hours per year of self-directed continuing professional development is appropriate to ensure contemporary practice, and affords medical practitioners the flexibility to tailor their own CPD program to their scope of practice.

Legal criteria for involuntary mental health admission: clinician performance in recording grounds for decision

In enacting mental health laws, parliaments empower doctors and other health professionals to detain patients and coercively administer treatment in defined circumstances. These laws have been informed by the United Nations Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care (1991).1 These principles include requirements that patients be treated in the least restrictive environment (principle 9), and that every effort be made to avoid involuntary admission (principle 15). Laws made in recent years also purport to give effect to the articles in the 2006 United Nations Convention on the Rights of Persons with Disabilities.2 Australia is a signatory to this convention.

Principle 16 of the 1991 UN catalogue requires that, when involuntary admission occurs, the grounds of the admission be communicated to the patient without delay, and the fact of the admission and the grounds for admission be communicated to the patient’s personal representative, the patient’s family (unless the patient objects) and a legal review body.1

In South Australia, the grounds for involuntary admission were previously recorded on the initial detention form, as required by a regulation of the SA Mental Health Act 1993. The form had space for a brief statement of the grounds for detention. It was expected that, if practicable, a psychiatrist would then examine the patient within 24 hours. It was not required that a copy of the form be given to the patient.

In 2010, the Mental Health Act 2009 came into operation. This new Act requires the order for involuntary admission to be given to the patient, together with a statement of their rights. It was expected that by receiving a copy of the order, patients, carers and the tribunal would be informed of the specific grounds for their detention, as this had previously been included in the order. However, the Minister for Mental Health had removed the requirement for grounds to be documented on the form.

In 2014, the SA Office of the Chief Psychiatrist published a review of the operation of the Act in which the requirement for the inclusion of written reasons on orders was reconsidered. It was recommended that reasons for detention not be included in the form.3 The SA Government is currently considering the outcomes of this review.

In the context of the current policy and legal debate about requiring doctors and other medical practitioners to succinctly document grounds for involuntary treatment on a form, our study examined how effectively doctors have complied with this legal requirement in the past. This has been done by rating forms for inpatient detention completed by medical practitioners under the former Mental Health Act 1993 for compliance with legislative criteria.

Methods

We analysed 2491 consecutive forms authorising the initial detention of involuntary patients. These forms had been faxed to the Guardianship Board of South Australia from hospitals that admitted involuntary patients during the period 17 July 2008 – 15 June 2009.

One of us (K R), a legal researcher, reviewed the forms to assess compliance with the requirements of the Mental Health Act 1993. An initial trial rating of 250 forms was completed before undertaking the analysis of all the documents.

The grounds for detention were defined in section 12(1) of the Mental Health Act 1993:

(1) If, after examining a person, a medical practitioner is satisfied—

(a) that the person has a mental illness that requires immediate treatment; and

(b) that such treatment is available in an approved treatment centre; and

(c) that the person should be admitted as a patient and detained in an approved treatment centre in the interests of his or her own health and safety or for the protection of other persons, the medical practitioner may make an order for the immediate admission and detention of the person in an approved treatment centre.

The Mental Health Act 1993 “Order for admission and detention in an approved treatment centre” (Form 1; reproduced in the Appendix) cites these legislative criteria and allows space for the examining physician to enter the reasons for detention.

We adopted a generous rating approach, in that we accepted any evidence that each criterion had been addressed by the practitioner, without seeking to determine whether a threshold level for the criterion had been met (eg, assessment of the degree of risk).We rated a criterion as having been met if it was referred to in writing in the reasons given, or if the criterion printed on the form was clearly marked up (eg, with a circle, underlining or tick) to indicate that the practitioner had considered that criterion.

Mention of a current illness, such as depression, schizophrenia or psychosis, was accepted as the presence of a mental illness.

The Act required that treatment be available in a treatment centre. This criterion was not assessed, as, if a person had been detained, treatment would be made available; if a bed in a ward was not available, a patient would be accommodated in an emergency department.

In assessing the forms, an overall statement of their compliance with legal criteria was made. Forms were assessed as clearly meeting the criteria if they addressed all the criteria required by the legislation (the detainee has a mental illness; is a risk to himself or to others; and requires immediate medical treatment). In some forms, not all criteria were explicitly addressed, but what was written and marked up constituted a justification for detention, and the form was therefore classified as “otherwise meets criteria”.

Ethics approval

The project was undertaken with the approval of the South Australian Department of Health Research Ethics Committee (HREC/14/SAH/129).

Results

Of the 2491 forms reviewed, only 985 (40%) addressed all the necessary legal criteria for detention (Box 1). Specifically, 1471 forms (59%) did not refer to a need for immediate treatment, 540 forms (22%) did not refer to the presence of a mental illness, and in 359 forms (14%) there was no reference to risk to self or to others (Box 2).

With regard to risk, 1247 forms (50%) recorded risk to self but not to others, 718 (29%) risk to both self and to others, and 167 (7%) risk to others but not to self.

On some forms, it was possible to infer that all criteria had been addressed even though this was not explicitly stated. If forms that “otherwise met criteria” in this manner were included, the number of those assessed as addressing the legal criteria increased to 1249 (50%). This group included 193 forms in which the assessor made a note that a need for immediate treatment could be inferred from the other details recorded on the form, although the need for immediate treatment was not specifically mentioned.

As the majority of practitioners did not refer to the need for immediate treatment, a further descriptive analysis was undertaken after removing this element, and this indicated that 1697 forms (68%) explicitly addressed the remaining criteria: the presence of mental illness and risk to self or others (Box 3).

Discussion

In providing written grounds for the detention and involuntary treatment of their patients, medical practitioners addressed all necessary criteria on only 40% of the admission forms. We view this very low completion rate as a significant problem in documenting evidence of compliance with the law and protecting the rights of the affected patient. However, when the criterion that was most poorly addressed (the need for immediate treatment) was removed from analysis, the rate of compliance with the remaining criteria increased from 40% to 68%. This is reassuring.

Nevertheless, these results raise a significant question about the legality of the involuntary admission of those for whom the criteria were not addressed on the form. Does the fact that criteria were not specifically addressed reflect the actual clinical circumstances of the patient, or simply an error of omission by the clinician when completing the form? To answer this question it would be necessary to compare the information on the form with other sources, such as case notes or patient interviews. This was not part of our study.

A strength of our analysis was the large number of forms assessed. In theory, the examined collection should represent every mental health detention in SA between 17 July 2008 and 15 June 2009. We are nevertheless aware that some hospital units may not have complied with the requirement to routinely fax forms to the Guardianship Board. The detaining medical officer was not responsible for faxing forms, however, so we do not believe that lapses in doing so by some units would bias the outcome of our analysis.

Completion of forms

Given that mental health laws seek to limit the use of coercion to defined situations, the requirement to succinctly state the grounds for taking this action should protect the rights of patients if the defined grounds are not present. The discipline of completing the form, a skill that requires the integration of clinical findings with legal requirements, can, arguably, assist with this clinical decision making. The legal requirement to complete the form also accurately reflects the gravity of the loss of liberty for the patient, which is comparable with other forms of custody, including police arrest.

Variability in decision making

It is worrying that decisions to make orders may be made for extra-legislative rather than legal reasons. Variability in decision making about the need for an order can be attributed to the level of training of clinicians and to the individual clinician’s attitude to risk.4 Some extra-legislative factors may be clinically relevant, such as non-compliance of the patient and their lack of insight,5,6 although they ultimately influence the assessment of risk within the context of the defined criteria.

There is also a potential for clinicians to substitute their own moral judgement for what the law requires. This has been discussed in the context of experts who testify in forensic matters “… in accordance with their own self-referential concepts of ‘morality’ and openly subvert statutory and caselaw criteria that impose rigorous behavioral standards as predicates for commitment”.7

A recent report of in-depth interviews with 10 Norwegian psychiatric clinicians about how legal criteria are interpreted suggested that an ideal rational deliberation can lapse into paternalism, with assumptions made about lack of insight and the pointlessness of attempting to provide voluntary care for people with severe mental illness.8 Another author identified the risk of applying a false “ordinary common sense” to decision making in the law; this can nurture irrational, unconscious, bias-driven stereotypes and prejudices.9

Whether a requirement for clinicians to succinctly document grounds for involuntary admissions would rectify the problem of extra-legislative decision making is not known. It is still possible to apply extra-legislative criteria in making a decision, and to then retrospectively justify it by correctly citing the law in recording the decision.

In SA, patients are no longer provided with grounds for their detention. It must now be very difficult to detect whether criteria for detention under the Mental Health Act 2009 have been addressed. Patients would be better protected by a requirement that the grounds be recorded at the time of detention.

Other jurisdictions in Australia have a variety of laws regarding the completion of forms and the notification of involuntary patients. All except the Australian Capital Territory and SA require a form that includes the grounds for detention. New South Wales, the Northern Territory, Queensland, Victoria, Tasmania and Western Australia require that people who are involuntarily detained be informed either of the fact of their detention and their rights, or of the reasons for their detention.10–15 The manner in which they must be informed, however, differs. In the NT, involuntary patients may be informed orally or in writing, although a record of the notification must be made.11 In Queensland,16 Victoria13 and NSW,10 involuntary patients are informed in writing; in Tasmania, the legislation provides a right to be informed, but does not specify how involuntary patients are to be informed.17

We do not have a uniform system of counting and reporting inpatient detention rates.18–20 The Australian Institute of Health and Welfare refers to general trends (eg, 29.0% of public hospital admissions of patients with psychiatric symptoms in Australia during 2011–12 were involuntary), but it cautions that direct comparisons between service settings can be affected by differences in data collection standards and methods.19 In SA, statistics on the number of involuntary orders in emergency departments and wards are now available,21 but there is no usable denominator that would allow the calculation of rates and accurately attribute meaning to yearly fluctuations.

Light and colleagues22 highlighted a similar problem with respect to involuntary community treatment orders, noting the lack of a comprehensive, uniform national dataset and the need for rigorous and publicly accessible policy on their use. The same can be said for the reasons for inpatient compulsion. The collection of this information would allow links between rates of compulsion and the practices and culture related to documenting the grounds for detention to be explored.

Should admission forms include the grounds for involuntary treatment?

On the one hand, the poor performance of medical practitioners in completing legal forms, as described in our article, might support the argument that specifying the grounds for involuntary treatment on such forms should be abandoned. However, we suggest not only that the recording of reasons be required, but also, given the concerns discussed in this article, that the reasoning on the forms be regularly monitored for quality assurance and that clinicians be supported to improve their performance. This would ensure rational deliberative decision making based on law and good practice.

The UN mental health principles stipulate that the grounds for involuntary treatment be communicated to the patient and to a legal review body. Giving a patient a form that includes the reasons for their detention may help them understand what is happening to them, and this transparency will, in itself, provide a quality check on the accuracy of information recorded and on the reasoning on the form. Further, if tribunals routinely received these forms, they would be better able to evaluate the appropriateness of detention and to provide constructive advice to practitioners on best practice.

Box 1 –
Completion of the Mental Health Act 1993 Form 1 by medical practitioners (analysis of 2491 forms)

Specific legal criterion	Addressed on the form	Not addressed on the form

Mental illness	1951 (78%)	540 (22%)
Requires immediate treatment	1020 (41%)	1471 (59%)
Form refers to individual’s health and safety and/or protection of others	2132 (86%)	359 (14%)
Form overall
All necessary criteria explicitly addressed	985 (40%)	1506 (60%)
All necessary criteria either explicitly addressed or could be implied from the form (“otherwise meets criteria”)	1249 (50%)	1242 (50%)

Box 2 –
Mental Health Act 1993 s. 12 criteria not addressed (analysis of 2491 forms)

Criterion not addressed

One or more criteria missing	1506 (60%)
Requirement for immediate treatment missing	1471 (59%)
Statement regarding the presence of mental illness missing	540 (22%)
Statement regarding risk to self or others missing	359 (14%)

Box 3 –
Reanalysis of the completion of Mental Health Act 1993 Form 1 by medical practitioners, after removing the criterion “requirement for immediate treatment” (analysis of 2491 forms)

All necessary criteria explicitly considered

1697 (68%)

All necessary criteria either explicitly considered or could be implied from the form

1725 (69%)

[Editorial] What are the Geneva Conventions for?

On Oct 3, Médecins Sans Frontières (MSF) hospital in Kunduz, northern Afghanistan, was bombed by a Coalition airstrike, killing ten patients including three children, and 12 MSF staff. This is not only the worst casualty for years for MSF in the field, but also a violation of the Geneva Conventions—international humanitarian law that regulates armed conflict and provides protection for non-combatants, the wounded, and medical personnel and units. For Joanne Liu, MSF International President, “This was not just an attack on our hospital—it was an attack on the Geneva Conventions…Even war has rules.”

A lifetime of jabs to be on the record

The birth-to-death vaccination details of every Australian will eventually be held in a single national register under new laws passed by Federal Parliament.

In a strong show of bipartisan support for the importance of vaccination, the Labor Party on 12 October backed Coalition legislation calling for the establishment of an Australian Immunisation Register to document all the vaccinations received by Australians under the National Immunisation Program.

Under the new laws, the current Australian Childhood Immunisation Register will, from 1 January next year, be renamed the Australian Immunisation Register and expanded to collect vaccination records for all Australians 20 years or younger.

From next September, the Register will be further enlarged to encompass all age groups including, for the first time, 70-year-olds receiving the Zostavax shingles vaccine provided under the National Immunisation Program.

These changes will be complemented by the transformation of the National Human Papillomavirus Vaccination Program Register into the Australian Schools Vaccination Register, which from 2017 will document all vaccinations given to schoolchildren under the National Immunisation Program.

The legislation will also enable the Federal Government to implement its No Jab, No Pay policy by allowing for the sharing of vital Centrelink data.

Assistant Treasurer Kelly O’Dwyer said the changes would remedy serious shortcomings in the nation’s immunisation record which have left some dangerously exposed to serious infections.

“The changes made in this Bill will help to increase national immunisation rates,” Ms O’Dwyer told Parliament. “There are a number of vaccines administered in schools that are not adequately recorded and, as a result, immunisation rates for adolescents in Australia are not well known.”

The Minister said this included information about vaccination for potentially extremely serious diseases such as chicken pox, tetanus, diphtheria and whooping cough.

Ms O’Dwyer said the registers, which will eventually be consolidated into a single, life-long vaccination record, would help identify areas where vaccination rates were low, allowing targeted action.

“The…registers will give vaccine providers the data they need on areas where immunisation rates are low, and it will allow them to send out the necessary reminder letters,” she said.

Shadow Health Minister Catherine King said the legislation would not only help ensure children were being fully immunised, but also adults.

“It is about ensuring adults have information they need to ensure the protection they receive as children continues long after their schooling ceases,” Ms King said. “Diseases like tetanus, diphtheria and, of course, whooping cough, are not confined to children. Adults who travel or come into contact with others who do not keep their immunisations up-to-date are just as much at risk as those who have refused to be vaccinated.”

“Having a register rof people and knowing their vaccination status is an important way to ensure that people can remain vaccinated.”

Adrian Rollins

Forcing GPs to adopt half-baked e-health record a dud idea: AMA

The Federal Government has hit a major snag in its overhaul of the troubled e-health record system after the AMA rejected plans to link GP incentive payments to the adoption of the scheme.

The Government has proposed that Practice Incentive Program e-health payments be tied to doctor use of the MyHealth Record (MyHR) system being developed to replace the $1 billion Personally Controlled Electronic Health Record scheme. The PCEHR has been dumped amid dismal take-up rates among patients, doctors and medical practices.

But AMA President Professor Brian Owler said the MyHR system was far from fully developed, so using PIP incentives to get doctors to sign up was ill-considered and premature.

“The MyHealth Record is not at a stage where it can be adopted by practices, so it should not be linked to the PIP scheme,” Professor Owler said. “There are fundamental issues with the design of the MyHR that are yet to be fully addressed.”

The AMA has detailed a long list of problems with the current version of the system in a submission to the Health Department, including:

the ability of patients to remove information from view, making the record potentially incomplete and of no clinical value;
no flags to indicate if information has been removed from view;
radiology or pathology results are not yet included;
the shared health summaries are not automatically updated, rendering them quickly out-of-date; and
inaccuracies occur in the upload of data.

In addition MyHR, in its current iteration, remains an ‘opt-in’ system.

The reliance on patients to sign up for an e-health record was seen as a fatal weakness of the PCEHR, and a three-person review of the system recommended that MyHR be an opt-out scheme.

But Health Minister Sussan Ley has indicated that the opt-out approach will first be trialled next year before being adopted.

“It’s important that all Australians are signed up to ensure we have a functioning system, and trialling an opt-out model means we can do it carefully, methodically and ensure the appropriate protections are in place to give patients peace of mind,” Ms Ley said.

“If automatic registration for a digital health record in the opt-out trials leads to higher participation in the My Health Record system, the Government will consider adopting opt-out on a national scale.”

Professor Owler said this lengthy catalogue of unresolved problems with MyHR meant it was unfair to expect GPs to adopt it.

“Until the problems with the MyHR have been rectified, so that it is easy to use and offers real clinical benefits for patients, it is unreasonable to expect GPs to actively use it,” the AMA President said.“The AMA has been a strong advocate for a well-designed and governed e-health record which can deliver real benefits for patients, but the current MyHR model has well-known flaws that must be fixed.”

The AMA has recommended the Government focus on rectifying problems with MyHR rather than trying to force GPs to use a system that is cumbersome and incomplete.

Even when the system is complete and fit for use, the AMA has argued that, instead of using the existing e-PIP incentive, the Government instead create a Medicare Benefits Schedule item and a Service Incentive Payment scheme to promote its use.

To help establish MyHR, Ms Ley has announced the appointment of former National Mental Health Commission Chief Executive Robyn Kruk to head an 11-member eHealth Implementation Taskforce Steering Committee.

The Committee, which includes Dr Hambleton, will design, implement and oversee the establishment of the Australian Commission for eHealth.

For its part, the Commission will oversee the operation and development of e-health systems, including operating the My Health Record System.

Revised eligibility requirements for the e-Health Incentive are due to be announced in November 2015, and to commence from 1 February 2016.

The AMA submission can be viewed at: at submission/ama-submission-proposed-changes-pip-ehealth-incentive

Adrian Rollins