Consumers' experiences of rights-based mental health laws: Lessons from Victoria, Australia

https://doi.org/10.1016/j.ijlp.2021.101737Get rights and content

Abstract

Many countries embarked on reforms of mental health law in the wake of the Convention on the Rights of Persons with Disabilities. These reforms have had varying levels of success. This paper considers the experience of consumers in the Victorian mental health system, drawing on an evaluation that asked consumers and clinicians about their knowledge and experience of rights under the Victorian Mental Health Act, 2014. The data show that consumers were not informed of their rights, were not involved in decisions about treatment, were not able to access safeguards, and could not exercise their rights. The explanations for this include limited staff time, unclear delegations of responsibility, a lack of knowledge, training, and support for rights, and a preference for ‘best interests’ approaches. The paper identifies tangible reforms that would maintain rights for consumers, including competent refusal of treatment, legislative and regulatory reforms, and training and resourcing. Consumers in this study found that the rights-based framework in the Mental Health Act, 2014 had such an insignificant effect on clinical mental health practice in Victoria that their rights appeared to be illusory.

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.

References (67)

  • BC Office of the Ombudsperson

    Committed to change: Protecting the rights of involuntary patients under the Mental Health Act

  • J. Boughey et al.

    Administrative decision-making under Victoria’s charter

    Australian Journal of Administrative Law

    (2018)
  • L. Brophy et al.

    Community treatment orders: The evidence and ethical implications

  • M. Burge

    From the madhouse to co-design

    (2016)
  • S.M. Callaghan et al.

    Is there a future for involuntary treatment in rights-based mental health law? Psychiatry

    Psychology and Law

    (2014)
  • Cannold, L. (2014, February 28). Victoria a true leader in mental health reform. ABC News. Retrieved from...
  • Castan Centre for Human Rights Law, & Inner Melbourne Community Legal

    Housing Discrimination: Submission to the UN Special Rapporteur on the Right to Adequate Housing

  • Charter of Human Rights and Responsibilities Act 2006...
  • Committee on the Rights of Persons with Disabilities

    General Comment No. 1, Article 12: Equal Recognition before the Law, UN Doc. CRPD/C/GC/1 (2014)

    (2014)
  • L. Coulson-Barr

    Witness Statement 4 June 2020 to the Royal Commission into Victoria's Mental Health System

  • L. Davidson

    A key, not a straitjacket: The case for interim mental health legislation pending complete prohibition of psychiatric coercion in accordance with the convention on the rights of persons with disabilities

    Health and Human Rights

    (2020)
  • Department of Health and Social Care

    Reforming the mental health act

    (2021)
  • J. Dixon et al.

    Treading a tightrope: Professional perspectives on balancing the rights of patient’s and relative’s under the mental health act in England

    Health & Social Care in the Community

    (2020)
  • E. Flynn

    The rejection of capacity assessments in favor of respect for will and preferences: The radical promise of the UN convention on the rights of persons with disabilities

    World Psychiatry

    (2019)
  • A. Freiberg

    Regulation in Australia

    (2017)
  • N.S. Gill et al.

    Human rights implications of introducing a new mental health act–principles, challenges and opportunities

    Australasian Psychiatry

    (2020)
  • G. Giuntoli et al.

    Human rights protection frameworks for people being treated involuntarily for a mental illness: Study findings (SPRC report to follow/19)

    (2019)
  • P. Gooding

    Psychiatrists’ perceptions of supported decision-making: A Victorian empirical study

    Psychiatry, Psychology and Law

    (2015)
  • P. Gooding

    A new era for mental health law and policy: Supported decision-making and the UN convention on the rights of persons with disabilities

    (2017)
  • P. Gooding et al.

    Preventing and reducing ‘coercion’ in mental health services: An international scoping review of English-language studies

    Acta Psychiatrica Scandinavica

    (2020)
  • K. Gregory

    Human rights groups say Victoria’s bail laws “willingly contribute” to aboriginal deaths in custody

    ABC News

    (2021, May 27)
  • B. Groot et al.

    Relational, ethically sound co-production in mental health care research: Epistemic injustice and the need for an ethics of care

    Critical Public Health

    (2020)
  • Guardianship and Administration Act 2019...
  • Cited by (0)

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