- The RANZCP strongly supports the principles underpinning the MHAs and seeks to highlight examples where psychiatrists put these principles into practice in their daily work.
- MHAs vary greatly between the different jurisdictions, and this variation is a barrier to pursuing best practice and reducing the incidence of involuntary treatment.
- The RANZCP advocates a greater consistency between the MHAs; one way to achieve this result would be to design MHAs around Patient Charters that are reasonably uniform.
- The increase in regulation places increasing administrative demands on many mental health services, diverting scarce resources from clinical work to compliance. The RANZCP calls on governments to ensure that services have sufficient resources to meet these demands.
The Royal Australian and New Zealand College of Psychiatrists (RANZCP) is committed to enhancing the mental health of Australians and New Zealanders through the leadership of high-quality psychiatric care. Mental Health Acts (MHAs) define the narrow circumstances in which compulsory measures can be taken by mental health services to treat a person where illness has impaired their capacity to direct their care. Consequently, the RANZCP advocates for MHAs1 in Australia and New Zealand that reflect community expectations.
The RANZCP has developed this position statement in order to inform psychiatrists, lawmakers and the public of the position of the RANZCP on MHAs and the principles that underpin them. This position statement does not address the other Acts that directly affect psychiatric practice, such as the Acts concerning guardianship, substance abuse and persons who have been charged with criminal offences and been found to be not guilty by reason of mental illness (or unfit to plead and stand trial).
The RANZCP acknowledges that some people with lived experience of mental illness prefer the terms ‘person’, ‘consumer’, ‘client’ or ‘service user’; however, this position statement uses the term ‘patient’ to reflect the terminology commonly used in legislation.
The asylum system dominated mental health care for the nineteenth and much of the twentieth century. The institutions frequently disregarded the dignity of patients and in so doing contributed to the stigma surrounding mental illness (RANZCP, 2016a). Many forces brought about the end of this system, a process known as de-institutionalisation. Community activism played a vital role, as did the emergence of new approaches within psychiatry itself, which allowed for the effective management of mental illness in the community through pharmaceutical treatment and collaboration with other health professionals. However, inpatient care is still necessary for some people to ensure safe care and treatment during episodes of acute psychiatric illness (Allison and Bastiampillai, 2015). The Organisation for Economic Co-operation and Development (OECD) notes that ‘Australia is leading the way in innovative approaches to delivering mental health services, including a decisive shift away from hospital care’. However, the OECD also notes that inpatient psychiatric bed numbers in Australia and New Zealand have fallen far below the OECD average – leaving patients with severe symptoms at risk of deterioration and more stays in emergency settings (OECD, 2014).
In the last decade, new MHAs have been introduced in every Australian jurisdiction except the Northern Territory. Major differences exist in the detail of these Acts, but their underlying aims are in agreement. The MHAs are shaped by principles drawn from international human rights law, and these principles are put into effect by specific provisions of the Acts and the systems of monitoring and oversight that the Acts create.
Mental Health Act principles
The MHAs in Australia and New Zealand are strongly influenced by the 1991 United Nations Principles for the Treatment of Persons with Mental Illness and the Improvement of Mental Health Care (the UN Principles) (Whiteford and Buckingham, 2005; Human Rights Commission, 2010). The UN Principles set out a right to the best mental health care in a manner that respects the humanity and dignity of patients. As much as possible, treatment is to occur in the community, in a culturally appropriate way. Facilities must respect patients’ rights to privacy, communication, education and recreation.
UN Principle Nine is the key provision: ‘the right to be treated in the least restrictive environment and with the least restrictive or intrusive treatment appropriate to the patient’s health needs and the need to protect the physical safety of others.’ Every effort must be made to avoid involuntary admission, but a psychiatrist may authorise it if they determine a person has a mental illness and, due to that illness, there is a serious likelihood of immediate or imminent harm to that person or others, or a likelihood of serious deterioration. Similarly, valid consent must be sought for any proposed treatment, but the UN Principles allow for exceptions where the clinician can provide treatment without obtaining valid consent.2 The emphasis on human rights is reinforced by the duty to notify patients of their rights and ensure that an independent body such as a tribunal reviews involuntary commitment immediately (then again at reasonable intervals).
In 2008, the Convention on the Rights of Persons with Disabilities (CRPD) came into force. The CRPD goes much further than the UN Principles, committing governments to go beyond protecting rights to ensuring that persons with disabilities are fully participating in decisions affecting their lives and in society more generally. Overcoming stigma is a crucial part of this process, and this means acknowledging disabilities as expressions of human diversity and not necessarily as conditions to be treated or cured (Kayess, 2008).
The full implications of the CRPD remain controversial in regard to MHAs and further law reform is likely to occur (McSherry, 2014; Freeman et al., 2015). Article 25 states a right to ‘the highest attainable standard of health’ which places a duty on governments to provide accessible health services that enable ‘early identification and intervention as appropriate’. The RANZCP supports the consistent pursuit of this goal in the interests of promoting patient-focused care and more cost-effective mental health care services (Hastrup et al., 2013; McCrone et al., 2009), and making less restrictive alternatives far more widely available, which would allow compulsory treatment to be reduced in a safe and clinically sound manner (McSherry, 2014).
Putting the principles into practice
This is the dominant model informing mental health service delivery in Australia and New Zealand (McKay, 2012). ‘Recovery’ goes beyond the clinical sense of the term, which focuses on the symptoms of mental illness; instead, the preferences, experiences and search for meaning of the individual become the central concerns. This has many implications for psychiatrists, requiring them to transition from being authorities into ‘experts on the available treatment services’ (VicHealth, 2011) and collaborating with patients – and, to varying extents, the families/whānau,3 friends and carers of patients – in the development of treatment and recovery plans which recognise the fluctuating nature of mental illness.
The RANZCP has acknowledged the tensions between recovery-oriented practice and involuntary treatment and admission. Patients often feel angry and vulnerable when subject to these orders, and unwilling to trust the treating team. The difficulty of establishing trust in these circumstances reinforces the need to treat patients as individuals bearing rights. The RANZCP emphasises that their choices and perspectives must be respected to the greatest extent possible without jeopardising the safety of the patient and others (RANZCP, 2012).
The National Framework for recovery-oriented mental health services: guide for practitioners and providers (2013) states that services should always aim to promote recovery but involuntary commitment and treatment may be the least restrictive means to protect health and safety in some circumstances. When this occurs, an initial focus is on helping to restore decision-making capacity (discussed below); at later stages, broader recovery goals can be pursued. Strong therapeutic relationships are needed to make this work, and many other elements are expected to play a large role, such as peer support, supported decision-making, and culturally-informed practice (Department of Health, 2013).
In the last decade, the MHAs have incorporated a commitment to recovery-oriented practice among their Principles or Objects. Some MHAs go further, notably Victoria, where the phrase ‘recovery outcomes the patient would like to achieve’ is incorporated into the legal tests for ordering involuntary treatment. The Act also recognises that risk has a positive or therapeutic dimension, and that services need to develop a greater degree of risk tolerance in order to help patients develop the ability and confidence to pursue recovery (Victorian Department of Health, 2011).
The definitions, influence and implications of recovery remain unsettled but the RANZCP has committed to developing this approach to treatment and our training programs assess competency in this area (RANZCP, 2016b).
This principle has profound implications for understanding the factors that give rise to mental illness and developing appropriate treatment. Treatment plans for Aboriginal and Torres Strait Islander peoples and Māori, for example, can benefit from the incorporation of traditional healing methods, in partnership with mainstream western medicine, to encourage a sense of environmental familiarity and cultural safety. Psychiatrists also need to grapple with the legacy of colonisation to understand the impact of collective trauma and social disadvantage on mental health, and the disproportionately high use of compulsory treatment on people from these backgrounds (RANZCP, 2016c).
Recent MHAs affirm the importance of responding to the culture of patients. A crucial part of this development lies in recognition of the values, beliefs, extended family/whānau and community of Aboriginal and Torres Strait Islander peoples and Māori. RANZCP trainees are required to develop competency in these areas, but much research and self-reflection is necessary in order for the profession to accommodate the perspectives of Aboriginal and Torres Strait Islander peoples and Māori on mental illness and decision-making capacity (Elder and Tapsell, 2013).
All the MHAs now recognise the importance of these matters. In WA, for example,
- 'A mental health service must provide treatment and care to people of Aboriginal or Torres Strait Islander descent that is appropriate to, and consistent with, their cultural and spiritual beliefs and practices and having regard to the views of their families and, to the extent that it is practicable and appropriate to do so, the views of significant members of their communities, including elders and traditional healers, and Aboriginal or Torres Strait Islander mental health workers.' (WA MHA: Schedule 1)
The RANZCP welcomes this change, but wishes to emphasise the need for adequate resources to ensure that effective, culturally-informed alternatives to involuntary treatment can be provided to all who need them.
Examples of this approach in Australia include the creation of Indigenous Mental Health Worker sub-teams within mainstream mental health services (Catts et al., 2013) and training in the Marumali healing program developed for members of the Stolen Generations (Marumali, 2016). In New Zealand, the Kaupapa Māori mental health services operate in a range of settings, providing services by and for Māori, and drawing on Māori worldviews (Baker and Levy, 2014).
Recognition of family/whānau and carers
The RANZCP affirms that family/whānau and carers should be engaged as much as possible in all stages of mental health care to promote the best outcomes for patients. They have a right to timely information, support and inclusion, as well as the right to give information to assist in diagnosis, treatment and ongoing care. This engagement can be fostered in a number of ways, such as working with patients to identify who their carers are and what clinical information should be shared with them, assisting carers to navigate the complexities of health systems, and encouraging health practitioners to help carers maintain their own well-being (RANZCP, 2012). In limited circumstances, however, the close involvement of family/whānau or carers may not be in the best interests of the patient, such as situations involving family violence.
MHAs have recently begun to acknowledge the vital role that family/whānau or carers perform. The WA MHA, for example, mandates that family and carers be involved in the preparation and review of treatment, support and discharge plans (s188). The Act also sets out 25 Notifiable Events; when these occur, ‘any carer, close family member or other personal support person of a person is entitled to be notified, as soon as practicable’ (s139).
Capacity and Supported Decision-Making
The MHAs presume that patients possess the capacity to make decisions regarding treatment, but this presumption can be tested. The test is not whether a given decision is wise, but whether the patient can understand and remember the relevant information, use and weigh it, and communicate a decision (Hunter, 2009).
When a person’s ability to make treatment decisions may be impaired, psychiatrists have a duty to assess their ability in the context of suitable support for that ability. In the ACT, for example, ‘a person must not be treated as not having decision-making capacity unless all practicable steps to assist the person to make decisions have been taken’ (s8). Supported decision-making often involves assistance from people close to the individual – such as carers, families/whānau or friends – but may also be provided by peers or independent advocates. Supported decision-making may also involve preparing advance care statements while an individual retains decision-making capacity to set out their preferences in the event that their capacity is impaired in the future.
Human rights issues arise in many areas of psychiatric practice, including the deployment of resources, advocacy for the social rights of persons with mental illness, and the use of involuntary treatment (Kelly, 2015). The following passage sums up the common approach to involuntary treatment in Australian and New Zealand MHAs:
- ‘The power to restrict a person’s rights, such as to provide compulsory treatment or to limit a person’s freedom of movement, brings with it an obligation to ensure that any restrictions can be justified, are proportionate and include effective oversight and safeguards’ (Victorian Hansard, 2014).
Some MHAs have gone further, including a Patient Charter that sets out a ‘rights-based set of principles that mental health services must make every effort to comply with in providing treatment, care and support to people experiencing mental illness’ (Mental Health Act 2014 [WA]). In New Zealand, the Bill of Rights Act and the Health and Disability Commissioner (Code of Health and Disability Services Consumer Rights) Regulations place similar duties on mental health services.
As stated, the least restrictive alternative applies throughout the Acts, placing a duty on psychiatrists to seek effective treatment in the community, and to do everything practicable to provide treatment on a voluntary basis. The least restrictive principle also applies to tightly regulate seclusion and restraint (collectively known as restrictive interventions) in acute mental health-care settings. The MHAs regulate the practice through schemes that are aligned with the relevant UN Principles; Principle 11 prohibits involuntary seclusion and physical restraint unless it is performed ‘in accordance with the officially approved procedures of the mental health facility and only when it is the only means available to prevent immediate or imminent harm to the patient or others’.
The RANZCP agrees that extreme circumstances can and do arise when seclusion and restraint are warranted in the interests of safety (RANZCP, 2016d). However, several MHAs go further, authorising these practices for additional reasons which the RANZCP does not support, such as the prevention of nuisance, absconding or property damage. Restrictive interventions must never be seen as a management tool, and we support government policy in Australia and New Zealand to reduce and, where possible, eliminate their use altogether. This goal would be served by amending the MHAs, using standard language to ensure that safety is the only justification for seclusion and restraint.
A range of practical approaches has helped to reduce the use of restrictive interventions. The Beacon Project developed and tested a series of techniques in hospitals across Australia (Melbourne Social Equity Institute, 2014), and the Canberra Hospital has had particular success through the use of weekly group meetings between patients and staff to review each use of seclusion and identify systemic issues or opportunities for better practice (ACT Health, 2013).
Rates of seclusion and restraint have fallen substantially in the last decade (National Mental Health Commission, 2015; NZ Ministry of Health, 2012), in part due to better training for staff in early intervention and de-escalation techniques. The Australian Law Reform Commission notes that the ongoing use of seclusion and restraint is partly due to ‘the lack of resources for positive behaviour management and multi-disciplinary interventions to challenging behaviours’ (ALRC, 2014). The RANZCP supports the development of alternatives and recommends that facilities be resourced to ensure proper training and an adequate staff to patient ratio at all times.
The MHAs mandate increasing oversight of the decisions made by psychiatrists to ensure that treatments are appropriate and the autonomy and dignity of patients is respected.
Further second opinions are more widely available, and are generally required before involuntary commitment can occur. For example, the new Queensland MHA requires a second opinion from outside the patient’s treating team if a patient has complaints about their treatment or care that the service has been unable to resolve.
Chief psychiatrists perform a number of roles under the MHAs. They have wide ranging powers to issue mandatory guidelines and monitor the clinical standards of psychiatric practice in public mental health services. Chief psychiatrists also investigate and respond to specific complaints (from patients, carers and others) and make appropriate orders, including directions to change the treatment being administered.
Tribunals help to safeguard human rights by reviewing orders for involuntary commitment and treatment. Their precise role and composition varies among the MHAs but they all draw upon clinical and legal expertise. In several MHAs, they also include a community member who has a special interest or experience in mental illness. Combined with their comparatively flexible, informal procedures, this range of expertise gives tribunals an advantage over courts when it comes to evaluating MHA orders (Carney et al., 2011).
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Under the New Zealand MHA, however, judges are responsible for making compulsory treatment orders. RANZCP members have raised concerns that this process can be intimidating and distressing to patients, and is not equipped to properly engage with clinicians, family/whānau and carers.
With the exception of Tasmania, all the MHAs also set out narrow circumstances where ECT may be administered to involuntary patients. In each case, tribunals must establish if the treatment is clinically appropriate,4 and reach their own decision as to whether the patient can give valid consent. The RANZCP questions the need for ECT to be subjected to special oversight by tribunals. Although tribunals play a vital role in upholding patient rights, it does not follow that ECT should be singled out among all other treatments for special regulation. ECT is an effective evidence-based treatment that should be available to patients when considered necessary by treating psychiatrists (Brown et al, 2014; Petrides et al., 2015). By strictly limiting the number of times that ECT can be applied within a given period, and requiring tribunal approval for each course of ECT, the MHAs can compromise clinical care. When a patient shows signs of improvement at a hearing, for example, the tribunal can be reluctant to approve further ECT, even though it may be required to avoid a high risk of relapse (Loo, 2007).
The RANZCP believes that MHAs should not regulate clinical matters in detail, although tribunal oversight is appropriate for experimental treatments such as deep brain stimulation (DBS), which is the case under most MHAs. MHAs in NSW and NT prohibit the use of DBS as a treatment for psychiatric disorders, however, despite the efficacy of DBS and the fact that it is available to treat Parkinson’s disease (Loo, 2010).
Barriers to best practice
Current mental health systems in Australia and New Zealand are still a long way from meeting the aspirations embodied in the new MHAs. A number of barriers prevent best practice being provided to all persons seeking mental health care. Some of these barriers exist within the profession itself – a legacy of older attitudes from the asylum era. The RANZCP has acknowledged this legacy in a recent Position Statement, as an important step in being able to transcend it – Acknowledging and learning from past mental health practices (RANZCP, 2016a). The RANZCP also works with the wider community through its Community Collaboration Committee to continue changing the culture of psychiatry and to inform it with user, family/whānau and carer perspectives.
Barriers to best practice lie outside the profession as well. The new MHAs have introduced substantial new administrative requirements but governments have not always provided extra staff and resources to meet those requirements. As a result, many mental health services find that compliance with the MHAs comes at the cost of time spent on clinical practice. This development makes it harder to develop the rapport with patients necessary to build strong therapeutic relationships and foster recovery. For example, in WA, before the new Act was introduced about half of all psychiatrists were spending over 80% of their time doing clinical work. Now less than a third do so. In some cases, considerable unpaid overtime is now required to meet the administrative workload (RANZCP, 2015).
Additionally, the MHAs are growing increasingly complex in their own right, and the detail of what they require from mental health services varies substantially between the different jurisdictions. This variation has been recognised as a barrier to understanding how rates of involuntary treatment vary between different jurisdictions, and how to reduce it further (Brayley, 2015); the same point also applies to restrictive interventions (National Mental Health Working Group, 2005). The RANZCP advocates a greater consistency between the MHAs; one way to achieve this result would be to design MHAs around Patient Charters that are reasonably uniform.
The RANZCP recommends that the governments of Australia and New Zealand:
- Match the increase in regulation with an appropriate increase in resources, to ensure that all patients can be cared for in a way that meets the aspirations of the MHAs. Governments should include a workforce analysis when considering proposals to change mental health laws.
- Ensure that health services have the resources to provide early identification and treatment of mental health conditions, allowing compulsory treatment to be reduced in a safe and clinically sound manner.
- Draft the MHAs to ensure they are both clearer and more consistent across Australia and New Zealand. Psychiatrist–patient relationships would benefit from this change, as the Acts would be easier to explain. Efforts to compare and improve the performance of mental health sectors in different jurisdictions would be aided as well.
- Include provisions in all MHAs to enable their regular review and to ensure that any unintended outcomes are identified and corrected in a timely manner. The NSW, Tasmania, South Australia and ACT MHAs already contain provisions to this effect.
- Address concerns about the use of judicial hearings to make compulsory treatment orders under the Mental Health (Compulsory Assessment and Treatment) Act 1992 (NZ). The RANZCP recommends that the New Zealand Ministry of Health evaluate the difference between judicial hearings and multi-disciplinary tribunals on patient outcomes.
- Provide adequate resources to ensure that effective, culturally-informed alternatives to involuntary treatment can be provided to all who need them – in particular, Aboriginal and Torres Strait Islander peoples and Māori.
- Review the oversight requirements of mental health tribunals in relation to the details of clinical management such as ECT.
1 Although they have different titles, for the purposes of this document the Mental Health Act (Compulsory Assessment and Treatment) Act 1992 (NZ) and the Mental Health and Related Services Act 1998 (NT) are included under the heading of ‘Mental Health Acts’.
2 The RANZCP uses the term ‘valid consent’ as opposed to the better known ‘informed consent’. Valid consent requires not only informing the patient but also ensuring that the information is understood and that the consent is voluntarily given.
3 ‘Whānau’ (pronunciation: fa:naᵾ) is a Māori word used to describe an extended family group spanning three to four generations. The whānau continues to form the basic unit of Māori society. In the contemporary context, the term is also used to include friends who may not have any kinship ties to other members.
4 In New Zealand, the Review Tribunal appoints a psychiatrist independent of the treating team to determine if ECT is in the best interests of the patient.
Additional RANZCP resources
Powers and duties of psychiatrists in Australia and New Zealand: a literature review (2017)
Mental Health Acts in Australia and New Zealand: Comparative Tables (2017)