Consumers' experiences of rights-based mental health laws: Lessons from Victoria, Australia
Introduction
The Convention on the Rights of Persons with Disabilities (CRPD), signed in 2007, has prompted global shifts in mental health law. Scotland (Scottish Mental Health Law Review, 2021), England and Wales (Department of Health and Social Care, 2021), and Ireland (Mental Health Reform, 2021) are currently reviewing mental health legislation, while India has introduced the Mental Healthcare Act 2017 to meet its CRPD obligations (Duffy & Kelly, 2019). Efforts to produce fit for purpose mental health laws are being challenged to engage with a new set of questions that prioritise non-discrimination (Davidson, 2020) while upholding mental health consumers' autonomy, dignity, and self-determination (Brown, 2016). Legislative strategies that have become associated with CRPD-based reform include support for decision-making (Gooding, 2017), better use of support persons (Series, 2015), advocacy services (Ridley et al., 2015), consensual proxy decision-making (Pathare, Shields, Nardodkar, Narasimhan, & Bunders, 2015), and better use of instruments such as psychiatric advance directives (Flynn, 2019). In tandem, attention has been drawn to the need to radically reduce restrictive practices (Gooding, McSherry, & Roper, 2020) and routine compulsory treatment in the community (Brophy, Ryan, & Weller, 2018).
Evolving debates about the proper form of mental health law mark a new phase in mental health law reform discourse. Traditionally, mental health laws conferred unrestricted authority on psychiatrists to make treatment decisions on a ‘best interests’ basis (Brown, 2016). In the second half of the 20th century, rights-based mental health laws surrounded medical discretion with procedural safeguards, introducing, for example, strict criteria for compulsory mental health treatment and administrative tribunal review (Weller, 2010). Internationally, the principles of rights-based law reform have been widely promoted by the World Health Organisation (WHO) and the CRPD Committee. These rights-based principles led to consideration of non-discriminatory substitute decision-making laws, where a person's capacity, not their diagnosis, was the central consideration (Gooding, 2017). These principles also led to supported decision-making laws, where a person would be supported to exercise their capacity, rather than have their capacity assessed and denied (Gooding, 2017). The recent WHO (2021) publication Guidance on community mental health services: Promoting person-centred and rights-based approaches progresses this reform agenda.
Mental health law reform is inevitably constrained by the social, economic, and political contexts in which reform is attempted. In many developed jurisdictions, rights-based law reform has intersected with periods of de-institutionalisation (Gostin, 2008), reduced government funding, and increased demand for mental health services, resulting in crisis-driven systems in which resources are progressively funnelled into acute psychiatric care rather than preventive care. Public mental health systems around the world are reporting poor treatment outcomes for mental health consumers (Giuntoli et al., 2019), persistent breaches of consumer rights (BC Office of the Ombudsperson, 2019), and increased reliance on coercive and restrictive forms of treatment and care (Dixon, Wilkinson-Tough, Stone, & Laing, 2020; Gill, Allan, Clark, & Rosen, 2020; Hashmi, Shad, Rhoades, & Parsaik, 2014; Knott et al., 2020; Rains et al., 2019). Poor outcomes raise questions about the efficacy and impact of rights mental health law reform. One way of understanding the impact of mental health law is to consider the experience of individuals who are subject to such laws.
This article provides an account of consumers' experience of rights-based law reform in Victoria, Australia, where an innovative legislative framework was introduced in 2014. The promise of the Mental Health Act, 2014 (Vic) (the Act) was so great that Victoria was hailed as a ‘true leader’ in mental health law reform (Cannold, 2014). Only four years later, the Victorian government called a Royal Commission into Victoria's Mental Health System (Royal Commission) to investigate the failure of Victoria's mental health system. Amongst its sweeping recommendations, the Royal Commission advised that the Mental Health Act, 2014 be abolished and replaced with a new Mental Health and Wellbeing Act. This paper considers some of the recommendations of the Royal Commission in light of consumers' experience in the mental health system.
The paper is divided into six parts. The following section, part two, describes the approach taken to the collection of the data. Part three provides a summary of the Mental Health Act, 2014. Part four examines consumers' experiences of rights under the Mental Health Act, 2014. The dominant theme in this analysis is that consumers described their rights under the Act as illusory. Part five describes several factors that appear to limit the realisation of statutory rights, including a lack of knowledge on the part of staff and clinicians. Part six provides a discussion of the key findings and makes recommendations for future law and system reform. This analysis shows that the rights framework in the Mental Health Act, 2014 had, for the consumers who participated in this study, little or no impact on the way mental health services engaged with consumer rights. While it is difficult to draw a complete picture of why and how legislation fails, this paper argues that the rights framework in the Mental Health Act, 2014 failed in its objectives because it was weak, contradictory, and disconnected from human rights principles. What is required is a firm grasp on human rights principles, adequately resourced services including independent non-legal advocacy, robust legislation, strong implementation, ongoing training, and dedicated attention to the social determinants of mental health.
Section snippets
Methodology and materials
The analysis in this article draws on previously unpublished data collected in 2017 and 2018 during an evaluation of Victoria's Independent Mental Health Advocacy (IMHA) service (Maylea et al., 2019; Weller et al., 2019).1 The evaluation took a participatory approach, using principles of co-design and coproduction (Burge, 2016;
Mental health law reform in Victoria
The Mental Health Act, 2014 (Vic) was the product of a lengthy law reform process following Australia's ratification of the CRPD. Australia adopted the CRPD in 2008, albeit with a declaration indicating Australia's intention to retain substituted decision-making regimes would be retained as a “last resort and subject to safeguards” (Convention on the Rights of Persons with Disabilities Declaration 2009, Sch 2). Australia's Declaration contradicts subsequent statements by the CRPD Committee that
Consumers' experiences of the Mental Health Act
Amongst the group of 59 consumers who participated in a focus group or interview for the IMHA evaluation, we identified 108 instances of consumers describing how they did not understand their rights or had their rights ignored by treating clinicians. Breaches of statutory rights were reported across all five inpatient services visited for focus groups and in every consumer interview.4
Barriers to rights practice
Several clinicians acknowledged there are significant barriers to implementing the rights framework, including limited staff time, delegation of tasks, and a lack of knowledge about rights. Some clinicians demonstrated genuine confusion about their legal responsibilities, while others questioned the value of rights-based approaches.
Discussion
It is clear from our study that not all Victorian mental health consumers experience the mental health system as one that respects rights. Some participants had not been included in discussions about treatment nor given the opportunity to express their views about their treatment preferences. They had not experienced support for decision-making. Rather, participants overwhelmingly identified repeated failures by services to inform them of their rights, to provide effective explanations, to
Conclusions
Our findings suggest that the rights-based framework in the Mental Health Act, 2014 had so little effect on clinical practice in Victoria that consumers found their rights to be illusory. We found that the rights outlined in the Mental Health Act, 2014 were poorly understood and often ignored. Lack of resources and staff time was underpinned by clinicians' troubling refusal to countenance the intended benefits and effects of a rights-respecting framework. The next steps are clear. In addition
Funding
The evaluation data used by this paper was funded by Victoria Legal Aid, but no funding was provided for this specific paper and the underlying analysis.
Acknowledgements
The authors wish to acknowledge other members of the IMHA evaluation team who did not author this paper including; Matthew Dale, Flick Grey, Vaanie Krishnan, Professor Jennifer Martin and Professor Stuart Thomas.
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