Legal Systems and Mental Health in NSW Australia - Essay Example

Legal Systems and Mental Health in NSW Australia Introduction The legislation relevant to the main issues raised by Harms (2011) is the Mental Health Act 2007 (NSW). The Mental Health Act was passed by parliament and came into effect on 16 November 2007. The Act is the principal legislation that deals with the care, control and treatment of people with mental illness or “mentally disordered” both in hospitals as well as in the community in NSW. The Act governs the care and treatment of voluntary as well as involuntary treatment and care of patients, providing stipulations for how persons suffering from mental illness can be made involuntary patients and the consequences of being made an involuntary patient in terms of care, control and treatment. The Act basically aims at the protection of the rights of people with mental illness or disorder while ensuring that they have access to appropriate care that places as little restriction on the rights and liberty of the patient as the circumstances allow (Mental Health and Drug and Alcohol Office 2007). This essay is going to discuss the legal system and mental health in Australia by focusing on the Mental Health Act 2007 as an example of legislation that addresses mental health issues in NSW. The essay will first briefly discuss the Mental Health Act 2007 NSW by focusing on some of its new features as distinct from the Mental Health Act 1990. The essay will then discuss the impact of the Act as mental health related legislation by focusing on some of its implications for individuals with mental illness or mental disorders. The essay will then discuss social work ethic issues related to mental health services and their intersection with the law by arguing that mental health legislation often poses challenging dilemmas for social workers and forces them to chose between upholding their code of ethics or compliance with the law. In conclusion, the essay will argue that while mental health service provision is effective at the state and local levels of government, social work ethics issues can be effectively addressed at the national level to provide uniformity in practice standards and to protect the rights of marginalised groups in society. The Mental Health Act 2007 NSW The Mental Health Act 2007 replaced the Mental Health Act 1990, based on many of its main principles but introducing several new changes. The new features of the Act, as additional objectives in section 68 of the Act, include designing the care and treatment of people with mental disorders to assist them wherever possible to live, work and participate in the community, to ensure that every effort that is reasonably practical is made to involve mentally ill patients in the development of treatment plans and plans for ongoing care and to give effect to the role of carers for people with mental illness and disorder and their right to be kept informed (Mental Health and Drug and Alcohol Office 2007: MHCC 2011). This is the most significant improvement to the Act according to Harms (2011) who notes that for the first time, the role carers in mental health care has been explicitly recognized. The Mental Health Act 2007 provides various mechanisms through which the provisions of the Act can be implemented that have an impact on people suffering from mental illness and disorder, their families and care givers. Sections 19 to 26 of the Act outline various ways through which persons determined to be suffering from mental illness and disorders can be detained and admitted as involuntary patients. This includes detention; on recommendation of a medical practitioner (detention on certificate), on certification by accredited persons, on request from a relative or a friend, after apprehension by the police, by or on information of an ambulance officer (defined in the Act), by order of a magistrate or bail officer of a local court, after transfer from another medical health facility or on recommendation of primary carers, family or friends as a voluntary patient in a medical facility (MHCC 2011). Impact of Mental Health Act 2007 The Mental Health Act 2007 has several impacts and implications for people with mental illness and their families or carers. The Mental Health Act 2007 mainly concerns the involuntary treatment and admission of people with mental illness or mental disorders. Principally, the use of the word “control” under the objectives of the Act indicates that the authorities in NSW have temporal power to suspend some of the basic rights enjoyed by individuals in health care and effect compulsory treatment for people with mental illness (Mental Health and Drug and Alcohol Office 2007). Under the Act, if it is determined that you have mental illness or is suffering from a mental disorder, you can either be taken to a mental health facility such as a hospital or psychiatric unit against your will and/or treated without requiring your consent to the treatment which is a basic right enjoyed by all Australians in health care (MHCC 2011). However, under the principle of least restrictive care as outlined in the Act, this treatment does not necessarily have to take place in a hospital but can also be effected from the community under a Community Treatment Order. As mentioned by Harms (2011), the main impact of the Mental Health Act 2007 has been to widen the scope of responsibility for mental health in the community. For instance, the amendments made to the Mental Health Act 1990 were informed by the need to, among other things, improve community vigilance about mental disorders and address some of the shortcomings in mental health frameworks. The case of people who had seriously harmed or killed themselves while under the care of public mental health care facilities had alerted policy makers, social workers and medical health professionals to deal with the issue of confidentiality of information and communication with families of people suffering from mental illness or disorders. Harms’ article refers to the “Tracking Tragedy Report” which essentially underscored the importance of sharing information about patients with mental illness among and between medical practitioners, their primary carers and their families as critical to their survival and recovery since mentally ill patients may be resistant to treatment and may actually try to frustrate the process (Harms 2011). In addition, including ambulance officers in the list of persons authorized to diagnose and recommend the detention of people with mental disorders could potentially enhance the early detection and improve the prospects of effective and timely treatment of such patients (MHCC 2011). The Mental Health Act 2007 also enables identification of persons suffering from mental illness and disorders among voluntary patients being attended to for other medical complications who would otherwise have been discharged. Another significant impact of the Mental Health Act 2007 is that it has enabled the legal system and local authorities to play a more active role in mental health service provision which is expected to resolve some of the legal issues that obstruct effective delivery of mental health services due to ethical considerations of patients’ (as consumers of mental health services) health rights. For example, as pointed out by Harms (2011), one of the most significant additions or enhancements to the Mental Health Act 1990 in the Mental Health Act 2007 was recognition of the role played by carers. As outlined in section 68 of the Act, a person can be appointed as primary carer who is then entitled to receive particular information about the patient without requiring their consent (Beaupert and Vernon 2011). Such information could include being told whether the patient has left the facility without authorisation, whether the patient has been discharged or even whether under the provisions of the act the hospital is considering applying to the Mental Health Review Tribunal (MHRT) to perform surgical operation or electro convulsive treatment (ECT) (MHCC 2011, Loo et al 2011). Therefore, the act circumvents some of the legal obstacles to best practice and effective treatment of people suffering from mental illness and disorder arising out of concerns over patient rights and control and privacy for consumers. It also provides a clearly outlined legal framework with provisions for how primary carers would be identified. As Harms (2011) indicates, the provisions for nomination of primary carer represent the most sophisticated attempt to provide a legal resolution to some of the pertinent issues in the treatment and care of people suffering from mental illness. Another notable new feature of the Mental Health Act 2007 is that it enables Community Treatment Orders (CTOs) to be issued for people living in the community as part of designing the care and treatment of people with mental disorders to assist them wherever possible to live, work and participate in the community (Campbell et al 2006). While in the Mental Health Act 1990 a CTO could only be obtained once a person had been admitted into the hospital as an involuntary patient, the Mental Health Act 2007 enables medical practitioners, family and friends of people suffering from mental illness and disorder to apply for CTOs. CTOs are less intrusive as a form of treatment and control of mental illness and disorders (Campbell et al 2006). Therefore, the Mental Health Act 2007 provides a framework for the most case appropriate assessments and interventions of people with mental illness and disorders. The Mental Health Act 2007 has also been lauded for institutionalising the critical gatekeeping role in balancing the rights and interests of people suffering from mental illness and disorders through the Mental Health Review Tribunal (Loo et al 2010). The tribunal conducts mental health inquiries on the treatment and control of patients for mental disorders and either approves discharge, certain forms of treatment or even upgrading or downgrading the patient’s status as either voluntary or involuntary. This is particularly significant in mental health legislation since people with mental disorders are normally vulnerable to abuses of their fundamental rights and it is important to be vigilant in protecting these rights. The MHRT has been viewed as instrumental in ensuring best possible care and treatment in the least restrictive environment. However, despite noting the positive impacts of the Mental Health Act 2007, there have been several criticisms over some of the provisions on compulsory treatment under the Act and its potential impact on people with mental ill health and their care providers. For instance, Loo et al (2010) bemoan the prohibition of the use of ECT and deep brain stimulation under the Mental Health Act 2007. It is argued that by subjecting the use of ECT and DBS contingent on approval of the MHRT, medical practitioners or psychiatrists would be constrained in the application of such evidence-based methods which have been proven to be effective for psychiatric illnesses. In this regard, the Act is construed as a legislative proscription on several forms of treatment which may not be consistent with medical best practice in mental health (Loo et al 2010). Other critics have pointed out that the dangerousness criterion in the Act should be removed, citing as the reason that it propagates stereotypes of mentally ill patients as dangerous and constitutes unfair discrimination (Large et al 2008). These pose several issues in social work ethics for mental social health workers. Social Work Ethics, Mental Health Services and the Law Social workers play a significant role in coordinating efforts to support individuals or groups suffering from mental illness and in assisting those who have had negative experiences or perceptions with mental health services (AASW 2008). The role played by social workers in mental health services in NSW is particularly significant to individuals and groups who are disadvantaged, vulnerable, exploited, marginalized, alienated or have special needs. This includes Aboriginal and Torres Strait Islander communities, adolescents, orphans, immigrants, the unemployed or even the elderly and physically handicapped (AASW 2008: Reamer 1998). In performing their roles in mental health service delivery, social workers in NSW must adhere to the ethical standards which are clearly outlined in the Australia Association of Social Workers (AASW) Code of Ethics. The AASW Code of Ethics is essentially a best practice manual or guide for ethical and accountable social work, helping social workers to uphold professional ethical standards by providing them with a foundation for ethical reflection and decision making as they carry out their duties (Reamer 1998). The key principles outlined for mental health social workers are respect for the individual, self determination, social justice and confidentiality (AASW 2008). There are several social work ethics that are relevant in mental health services and that intersect with the law. For instance, the AASW code of ethics stipulates that social workers are to carefully consider the consent of individuals suffering from intellectual or mental impairment while conducting research or providing support services (AASW 2008). For voluntary patients, mental health social workers must obtain consent without coercion which is consistent with the overall ethical principle of respecting for the rights of individuals. However, in the case of involuntary clients such as stipulated in the Mental Health Act 2007, mental health social workers are encouraged to identify and promote their legitimate interests. In such cases, they face the ethical dilemma of evaluating the potential conflict of interest that may arise and how to determine what is in the best interest of persons with mental illness or disorder (Reamer 2008). An example of such ethical dilemmas is through the use of CTOs. As mentioned before, mental health social workers’ obligation under the code of ethics is to maintain the best interests of the mental health service consumer, or patient. Therefore, the coercive nature of CTOs poses a challenge to the mental health social worker in terms of whether to uphold the right of refusal of treatment or to invoke the provisions of legislations such as the Mental Health Act 2007 which they believe would be in the best interest of the consumer. As Campbell et al (2006) note from a case study of Victoria, Australia, opinion is divided among social workers over whether to uphold the consumer’s rights or whether it is in their best interests to implement CTOs in the belief that this would prevent recurrence of symptoms that would eventually lead to involuntary hospitalisation. Therefore, the coercive nature of legislation on mental health places social workers in a dilemma where they have to make tough choices between promoting human rights, which is a key ethical principle of social work, or to follow legal standards (Reamer et al 2005). Another ethical dilemma or challenge in social work ethics is the issue of confidentiality and privacy. The code of ethics demands that mental health social workers respect the confidentiality of information and privacy of both their voluntary and involuntary clients. Reamer (2005) notes that although ethical standards are generally consistent with legal standards, such as disclosing information to authorities or medical practitioners when they have reason to believe that a client poses an imminent and foreseeable threat to themselves or a third party, there are circumstances that force them to reflect due to a clash between legal standards and their sense of moral duty (Reamer et al 2008: Large et al 2008). While in some cases it may be in the interests of the child and consistent with legal standards, there may be instances when a mental health social worker may feel that blind adherence to the law may be harmful and hence socially unjust to the client in the long run. For example, the Children and Young Persons (Care and Protection) Act 1998 makes it compulsory for social workers to report to Community Services NSW any young persons who in their evaluation are at risk of serious self-harm (MHCC 2011). This is in particularly in the case of socially disadvantaged groups, such as Aborigines, where the social worker feels that the client’s condition is a result of social injustice and that by reporting them the client would be trapped in a vicious cycle of social injustice that may eventually precipitate involuntary hospitalization. In addition, in cases where individuals have been pre-emptively evaluated under the dangerousness criterion, subjecting them to involuntary treatment may actually worsen their situation and even make them violent when they otherwise would not have (Large et al 2008). The information revealed by social workers to mental health facilities may also result in other negative and exacerbating situations such as loss of employment which would be socially unjust and not in the best interest of the client especially for marginalised and economically disadvantaged persons. Other social work ethics which pose challenges and dilemmas for social workers concern issues of discrimination. Large et al (2008) argue that legislations such as the Mental Health Act 2007 which include the dangerousness criterion for involuntary hospitalization essentially amount to state sanctioned discrimination of mentally ill individuals. Citing the findings of studies which have exposed inconsistencies and flaws in determination of persons with high risk of violent behaviour, psychosis or even suicidal tendencies, they argue that designating mentally ill people as dangerous is not only unfairly discriminatory but that the subsequent involuntary hospitalisation may not actually lower the risk faced by the community or themselves. The empirical evidence by Large et al (2008) and that shown by Harms (2011) indicates that even patients under involuntary treatment are prone to suicide and committing homicide. Therefore, the legal obligations placed on social workers to report such persons may cause them to discriminate unfairly against the mentally ill and actually perpetrate stereotypes of mentally ill people as dangerous which would contradict the AASW Code of Ethics that demands social workers not to practice negative discrimination of their clients (AASW 2008). Conclusion: The Case for National Social Work Ethics Standards While the issues discussed are not exhaustive, they represent some of the social work ethics related to mental health services and their intersection with the law. Legislations on mental health such as the Mental Health Act 2007 may impose legal standards on mental health social workers who are then faced with challenges or dilemmas over upholding ethical standards on issues such as privacy, confidentiality, non-discrimination, equality and the protection of the rights of their clients and strict compliance with the law (AASW 2008). The work done by mental health social workers does not take place in a vacuum. The social work ethics issues discussed in the previous section emphasize that the role of mental health social workers is most important in communities that are disadvantaged, vulnerable, exploited, marginalized, alienated or have special needs (Wand and Chiarella 2006). This is illustrated in the AASW Code of Ethics which expressly acknowledges and understands Aboriginal and Torres Strait Islander peoples as historically and contemporarily disadvantaged. Therefore, with regards to the protection of the rights of the mentally ill or mentally disabled, as argued by Goonan et al (2000), it is important to develop a system of social rights for such disadvantaged groups that are disadvantaged or disabled either by social institutions and structures “from participating in the determination of their own lives, or who are disadvantaged, within existing institutions and structures, by virtue of some physical or mental characteristic (Goonan et al 2000 p 31)”. The position argued by Goonan et al (2000) and supported by Wand and Chiarella is that there is a need to address issues arising from social work ethics related to mental health at a national or a federal level. The rationale is that by developing universal standards, mental health legislation will have effectively addressed mental health issues of disadvantaged individuals or communities, one of the principal objectives of mental health social workers. While current legislation is at state level, and the provision of mental services is implemented at local government level, the social work ethics issues related to mental health can best be dealt with at national level due to the fact that this would enable standardisation and harmonisation of legal and moral and ethical standards for social workers. References Australian Association of Social Workers (AASW) (2008). Practice Standards for Mental Health Social Workers. Kingston, ACT: AASW. Beaupert, F. & Vernon A. (2011): ‘Odyssey of Hope’: The role of carers in mental health tribunal processes and systems of mental health care. Psychiatry, Psychology and Law 18(1): 44-68 Campbell, J., Brophy, L., Heally, B. & O’Brien, A.M. (2006). International Perspectives on the use of Community Treatment Orders: Implications for Mental Health Social Workers. British Journal of Social Work 36: 1101–1118 Goonan, G., Healy, B. & Moynihan, P. (2000). The death of the subject: Human rights, due process and psychiatry. International Journal of Law and Psychiatry 23 (1): 23–41. Harms, J. (2011). Reviewing the Implementation of Primary Carers Rights under the Mental Health Act 2007. Mental Health Carers: ARAMFI NSW. Retrieved on 25 March, 2012 from < http://www.arafmi.org/article/reviewing-implementation-primary-carers-rights- under-mental-health-act-2007> Large, M.M., Ryan, C.J., Nielssen, O.B. & Hayes, R.A. (2008). The Danger of Dangerousness: Why We Must Remove the Dangerousness Criterion from Our Mental Health Acts. Journal of Medical Ethics 34(12): 877-881. Loo, C., Trollor, J., Alonzo, A., Rendina, N. & Kavess, R. (2010). Mental health legislation and psychiatric treatments in NSW: Electroconvulsive therapy and deep brain stimulation. Australasian Psychiatry 18 (5): 417-425. Mental Health Coordinating Council (MHCC) (2011). The Mental Health Rights Manual: A Consumer Guide to the Legal and Human Rights of People with Mental Illness in NSW (3rd Ed). Retrieved on 28 March, 2012 from < http://mhrm.mhcc.org.au> Mental Health and Drug and Alcohol Office (2007). Mental Health Act 2007 NSW. Retrieved on 26 March, 2012 from < http://www.legislation.nsw.gov.au/sessionalview/sessional/act/2007-8.pdf> Reamer, F.G. (1998). The Evolution of Social Work Ethics. Faculty Publications. Paper 170. Retrieved on 25 March, 2012 from Reamer, F.G. (2008). When Ethics and the Law Collide. Social Work Today 8 (5). Retrieved on 27 March, 2012 from < http://www.socialworktoday.com/archive/EoESepOct08.shtml> Wand, T. & Chiarella, M. (2006). A conversation: Challenging the relevance and wisdom of separate mental health legislation. International Journal of Mental Health Nursing 15(2): 119-127. Read More