Chapter 4 The Australian and New Zealand politico-legal context
Learning outcomes
Historical landmarks
In order to gain a clear and critical understanding of how mental health services in Australia and New Zealand have developed, it is important to briefly explore some historical landmarks over the past five hundred years. A full exploration of the historical foundations of the care and treatment of the mentally ill can be found in the previous chapter. As noted in that chapter, asylums arose in the Middle Ages as a means of controlling the mentally ill. People with mental illness were socially and physically excluded from ‘normal’ social life and frequently subjected to institutional brutality. Asylums were established in both Australia and New Zealand as part of the process of colonisation of each country (Ernst 1991; Maude 2001). Prior to the middle of the twentieth century, pharmacological treatments were extremely limited and, when used, often ineffective or dangerous. Most treatments were of a physical nature and often involved the use of restraints such as straitjackets and being subjected to cold water baths or showers. After the Second World War, pharmacological treatments of varying efficacy and toxicity began to emerge—antidepressants first, then antipsychotics. These pharmacological treatments, in conjunction with an era of anti-psychiatry sentiment in society culminated in many institutionalised clients leaving hospital for the first time in decades, a process which eventually led to the closure of psychiatric hospitals and a reduced focus on custodial care in favour of care in the community. This practice was known as deinstitutionalisation.
The current global perspective
In 1991, the United Nations established the Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care, reflecting an international understanding and awareness of the individual and unique needs of those with mental illness and the responsibilities incumbent on the ‘state and professional communities to respond adequately and ethically to these needs’ (Singh 2001, p 43). An overarching statement of the fundamental human rights of those with mental illness guides the twenty-five principles (Box 4.1).
Box 4.1 Rights of the mentally ill
Rights of the mentally ill include:
Source: Singh 2001.
The World Health Organization (WHO 2001b) also recommends that all mental health policies be anchored by the four guiding principles of:
A description of each of these principles is given in Box 4.2.
Box 4.2 Who principles for guiding mental health policy
Source: World Health Organization 2001c.
These WHO recommendations have been adopted in Australian and New Zealand mental healthcare law, and enshrined in the various state and territory Mental Health Acts, which are described later.
Australian national mental health policy
The material in this section is drawn largely from national policy documents that describe the direction of federal governments in the ongoing reform of mental health services in Australia since the early 1990s. An understanding of policy direction is important in order to appreciate the current and future course of mental healthcare and its impact on the shape of mental health nursing in the future. In 1992 Australian state health ministers gave full support to the National Mental Health Strategy (Australian Health Ministers 1998), which operationalised the National Mental Health Plan (Australian Health Ministers 1992). The National Mental Health Strategy established twelve priority areas.
The urgent need for reforms was recognised and additional funding for mental health services was provided with the release of the findings of the Report of the National Inquiry into the Human Rights of People with Mental Illness (HREOC 1993). This damning report highlighted the often appalling experiences of consumers of mental health services in inpatient care, the perpetuation of stigma and the consequent isolation of people living with mental illness.
The National Mental Health Plan was reviewed in 1997, and subsequently updated and published (Australian Health Ministers 2003). The Australian National Mental Health Plan (2003–2008) provides a framework for building on the First and Second National Mental Health Plans. This Plan outlines the governments’ commitment to the development of mental health services and programs that reflect the spectrum of care from mental health promotion and illness prevention to rehabilitation and recovery. Several priority themes are highlighted:
Within this latest Plan, high priority is given to new treatment approaches and ways to reduce the risk of developing mental health problems and enhance resilience. Improving continuity of care across specialty settings, both public and private, by providing better integrated services that ensure access for individuals across the lifespan, is identified as an ongoing challenge. The Plan also emphasises consumer and carer participation in the mental health system. A key direction is to ensure ‘meaningful’ consumer and carer participation in policy and services planning, as well as service development and evaluation from the local to the national level. Consumer participation is also central to the work of the New Zealand Mental Health Commission and is an inherent aspect of a recovery orientation (MHC 2001).
In relation to Indigenous populations, improved access to services for Aboriginal and Torres Strait Islander peoples is an important goal of the Australian National Mental Health Plan (2003–2008). A key direction is to ‘Improve the cultural appropriateness and safety of mental health service options for Aboriginal and Torres Strait Islander people, through enhancing knowledge of risk factors for Aboriginal and Torres Strait Islander people, improving cultural awareness for the mental health workforce …’ (Australian Health Ministers 2003, p 21).
New Zealand mental health policy
Treaty of Waitangi (1840)
The Treaty of Waitangi is regarded by many as New Zealand’s founding constitutional document, and the basis for development of economic, health and social policy (Durie 1994). Both the Ministry of Health and the Mental Health Commission accord the Treaty a central place in policy development and service provision, and recognise the special health issues facing Māori, the Indigenous people of New Zealand. Publications of both bodies make specific reference to Māori, Pacific and other cultural needs in the development of mental health policy and services.
The National Mental Health Strategy
The National Mental Health Strategy was launched in 1994 with the publication of Looking Forward: Strategic Directions for the Mental Health Services (Ministry of Health 1994). The closure of hospitals had revealed gaps in community-based services and the new strategy was designed to rectify this. Looking Forward stated that a new direction was needed in the post-institutional era of mental healthcare, and set two key goals for the National Mental Health Strategy. These were:
By 1996 there was recognition that more specific pol icy and targeted funding were necessary in order to achieve the objectives of the National Mental Health Strategy. Since then, mental health policy has continued to develop, most recently with the establishment of the Second New Zealand Mental Health and Addiction Plan (Ministry of Health 2005). The Mental Health Commission was created in 1996 on the basis of a report into mental health services (the Mason Report) (Mason, Johnston & Crowe 1996). The principal document that guides the work of the Commission is the Blueprint for Mental Health Services (MHC 1998). Originally envisaged as having a time-limited role, the Commission planned to have completed its work by 2001. Such is the complexity of reform, and the scope of issues to be addressed, that in 2006 the Commission’s term was extended until 2015.
The policy trend to see mental health not just as an issue for mental health services, but as something requiring collaboration across the health, disability and social service sectors, continued with the development of the Second New Zealand Mental Health and Addiction Plan (Ministry of Health 2005). This policy brought together mental health and addictions policies, and created expectations of all state agencies in relation to mental health. The policy contains ten ‘Leading Challenges’, covering promotion and prevention, primary healthcare, building services, developing a workforce culture of recovery, Māori mental health and improved funding.
New Zealand mental health legislation
The New Zealand Mental Health (Compulsory Assessment and Treatment) Act 1992 and subsequent amendment (1999) were introduced towards the end of the period of deinstitutionalisation and reflect a shift from a therapeutic to a legal standard in decisions about involuntary treatment. The shift from a therapeutic to a legal standard in mental healthcare has been called ‘the new legalism’ (Verdun-Jones 1986; Vestegaard 1994) and has influenced mental health legislation in many Western countries. Clients have access to legal counsel, appeal processes and reviews of their status under legislation by courts of law. For nurses, the Act introduced changes in their responsibilities by creating a range of new roles, from providing advice to the public to the exercise of temporary holding powers.
An earlier part of this chapter discussed deinstitutionalisation, the closure of psychiatric hospitals and the reduced focus on custodial care in favour of care in the community. Deinstitutionalisation is based on the concept of the least-restrictive alternative, a concept that underpins mental health legislation in New Zealand (Bell & Brookbanks 2005). By this standard a decision to place a person under involuntary status does not mean that that person needs to be admitted to hospital. Treatment can occur in a hospital or in any other place deemed suitable by the treating clinician, including the person’s home. In practice, most individuals who are acutely disturbed within the meaning of the Mental Health Act are admitted to hospital. However, the intent and wording of the Act allows clinicians to explore less restrictive alternatives such as care in a community respite facility or care at home.
Criteria for invoking mental health legislation involve two components: ‘abnormal state of mind’, and serious danger to self or others (Bell & Brookbanks 2005). Mental disorder is defined (Section 2) as:
For an individual to be placed under mental health legislation there first needs to be an application by a member of the public and an accompanying medical certificate. Following an initial assessment examination, the person may be required to undergo further periods of assessment and treatment, coordinated by a ‘responsible clinician’ appointed under the Act. During this time the individual can apply under Section 16 of the Act for a review of their condition by a judge. At the conclusion of the assessment, if the person is thought to meet the criteria for compulsory treatment, the responsible clinician applies to the court for a compulsory treatment order. Compulsory treatment orders can be either inpatient orders or community treatment orders, and are for an initial period of six months. Other provisions of the Act apply to clients following the issue of a compulsory treatment order. These include special and restricted client status, review tribunals, and rights under the Act. A detailed outline of the process of compulsory assessment and treatment, including definitions of key concepts, is available in the Ministry of Health guidelines (Ministry of Health 2000).
Nurses are involved, through a number of statutory roles, in facilitating assessment and treatment under the Mental Health Act. The role of Duly Authorised Officer (DAO) involves providing assistance to members of the public who may be concerned that a person is mentally disordered and in need of treatment under the Act. Although the legislation does not specify the professional background of individuals acting as DAOs, in most cases this role has been assumed by nurses. Concerns have been expressed that nurses acting as DAO, especially with consumers for whom they may be also acting in a case management role, may, by acting in the DAO role, jeopardise the therapeutic relationship they have with those consumers (Street & Walsh 1994). The role involves the exercise of considerable skills in mental status and mental health assessment (Street & Walsh 1998), and was developed in recognition of the fact that nurses constitute a large and accessible group of mental health professionals with those skills. Despite this concern, Foster (1998) has argued that the DAO role provides an opportunity for consumer advocacy, particularly in situations where the DAO assessment might show that there is no need to invoke the Act.
As discussed above, clients with involuntary status may appeal under Section 16 of the Act for a review of their condition by a District Court Judge. In most cases the second health professional providing an opinion to the court is a nurse. The role of second health professional is one for which few nurses have specific preparation, and about which they feel a sense of conflict between a legally custodial and a therapeutic role (Fishwick, Tait & O’Brien 2001).
Australian mental health legislation
Each Australian state and territory has mental health legislation (Mental Health Acts) designed to: protect individuals with mental illness from inappropriate treatment; direct the provision of mental healthcare and the facilities in which it is provided; and instruct the practice of mental health professionals in principles of treatment and care. Australian Mental Health Acts without exception detail the prescribed actions in the use of physical treatments such as electroconvulsive therapy and psychosurgery as well as medical interventions. Seclusion practices are prescribed in most, but not all, Mental Health Acts in Australia. While Mental Health Acts vary in regard to the requirements of psychiatrists and mental health nurses, core issues such as a definition of mental illness, and basic criteria for the admission and detention of voluntary and involuntary clients reflect the United Nations’ human rights principles and are present in all state and territory Acts. Mental illness is generally defined as a medical condition characterised by a significant disturbance of thought, mood, perception or memory (Victorian Mental Health Act 1986, amended 2003). In the past, people with beliefs or behaviours judged by society in general, or the State, to be abnormal, deviant or immoral, were labelled as mentally ill. A number of Mental Health Acts go so far as to identify behaviours and personal characteristics that are not indicative of mental illness:
Most Australian Mental Health Acts involve the care and treatment of both voluntary and involuntary clients. In amendments made to Acts in recent years, care has been taken to embrace the client’s perspective and to provide an appropriate and timely response to complaints about care received during treatment (in the hospital and the community). Detained clients are more likely than ever before to receive care in the community, and Australian Mental Health Acts provide for this context of care using community-based treatment orders. In some circumstances (such as refusal of depot medication), clients may be forcibly removed to hospital for treatment. Geography and isolation factors also affect differences in legislation. In the Northern Territory, for example, ambulance officers may detain clients (for a maximum of six hours) who are deemed to be mentally ill and requiring immediate treatment.
Voluntary and involuntary treatment of psychiatric clients
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