MENTAL HEALTH LAW (COMPULSION AND SOCIAL WORK:
Social work practice in…
MENTAL HEALTH LAW
COMPULSION AND SOCIAL WORK:
- Social work practice in mental health in Australia is largely based on an assumption of the need for involuntary treatment.
- Despite this assumption, many people who are subject to involuntary treatment consistently recount the experience as traumatic rather than therapeutic.
"The reality is that most social qork relationships are involuntary; they happen in situations in which the recipient of the service does not freely enter into the contract, but in which they are mandated by law and may resent having to do so. In one recent study, a participant was asked if he had any advice for social workers, to which he responded 'Yeah - fuck off out of our lives''. (Smith).
"Compliance in the shadow of compulsion is an important feature of the psychiatric system" (Fennell in McSherry).
- When people are told if you don't comply, we'll make you involuntary.
- Most people in the long-term mental health servicse road knows that if they don't do what they're told, they'll be made to do it.
EG. you can live in our housing service, but if you bring people back, if you drink etc, you'll be kicked out and become homeless.
You don't have to take medication, but if you don't you'll be subject to involuntary treatment.
Even though people often say they're glad the intervention occurred, they still didn't like the way it was handled.
POWERS FOR SOCIAL WORKERS:The Mental Health Act gives social workers the power to:
These powers may also be used to:
- Decide if a person needs to be assessed by a psychiatrist
- To ‘take’ a person using bodily restraint,
- To enter premises and
- To search and seize a person’s belongings.
- Enforce conditions in a Treatment Order
- OR to apprehend and transport people who are absent without leave from mental health services
It's better that you as a social worker get the person for involuntary treatment than a police officer.
We care more, there is less stigma and less discrimination. Police have better things to worry about.
CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES:
Social model of disability sees 'disability as a consequence of an environment that is organised to meet the needs of persons who are normal'.Art 17: Every person with disabilities has a right to respect for his or her physical and mental integrity on an equal basis with others.
Art 12: Persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.
- If you stick a needle in me, that's taking away my physical integrity.
- If you sedate me that's taking away my mental integrity.
Art 14: The existence of a disability shall in no case justify a deprivation of liberty.Art 25: Provide those health services needed by persons with disabilities, specifically because of their disabilities, including early identification and intervention as appropriate.Art 19: To choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement.
- This convention states that you can't treat someone involuntarily.
- You must seperate legal and mental capacity.
UN High Commissioner for Human Rights:
They state that we need to stop institutionalising people with disabilities on the grounds of their disability.
Legislation authorising the institutionalisation of persons with disabilities on the grounds of their disability without their free and informed consent must be abolished
AUSTRALIAN STATES SHOW NO SIGN OF ABOLISHING THEIR MENTAL HEALTH LEGISLATION
According to the Mental Health Act 2014Enables assessment by a psychiatrist (it can be made by a doctor or mental health practitioner employed by a mental health service). A person can be held short-term for assessment; 48 hours.The criteria for an Assessment order are:
- The person appears to have a mental illness
- Because they appear to have a mental illness, they appear to need immediate treatment (to prevent serious deterioration in health or serious harm to themselves or others)
- If the person is made subject to an Assessment order, they person can be assessed
- There is no less restrictive means reasonably available to enable the person to be assessed.
Enables compulsory treatmentTypes of treatment orders:
The Treatment Criteria are:
- Practiced by a psychiatrist (28 days)
- Practiced by Mental Health Tribunal (6-12 months)
- Inpatient (up to 6 months)
- Community (up to 12 months)
- The person has mental illness
- Because the person has mental illness, they need immediate treatment (to prevent serious deterioration in health or serious harm to themselves or others)
- The immediate treatment will be provided to the person if they are subject to a Treatment Order.
- There is no less restrictive means reasonably available to enable the person to be immediately treated.
THE MENTAL HEALTH TRIBUNAL:
Social workers role:
- Makes treatment orders
- Hears applications to revoke orders
- Hears applications against transfers
- Reviews orders for security patients
- Makes orders for electroconvulsive treatment (ECT) and neurosurgery (different set of criteria to other treatment orders, the person must agree or lack capacity).
- We use a best interests framework (rather than a legal one)
- While lawyers can be present as legal representation ,social workers can provide non-legal representation
- Appeals to VCAT ?
Written by a person saying what treatment they would like if they become unwell and need compulsory mental health treatment.
- It must be in writing
- It must be signed
- It must be witnessed by an authorised witness and include a statement from the witness
- It is not binding
- They go to the Mental Health Tribunal instead of the patient)
- A nominated person will receive information and provide support if compulsory treatment is required.
- They may assist in exercising rights and represent the person's interests
- Nominations must be made in writing, signed, include a statement from the nominee, witnessed by an authorised witness and include a statement from the witness.
COMMUNITY VISITORS AND THE MENTAL HEALTH COMPLAINTS COMMISSIONER:
Community visitors are volunteers who visit and inquire into the adequacy of services and facilities (in inpatient units). They will attempt to resolve issues and assist in making complaints to the Mental Health Complaints Commissioner.The Mental Health Complaints Commissioners can:
Social workers help people make complaints
- Attempt to resolve complaints
- Issue compliance notices
THE MENTAL HEALTH ACT 2014 (VIC):
- This act reflects a shift away from a clinical-dominated approach, towards recovery-focused mental health care (although it hasn't really worked).
- It has been developed in a rights-based framework, informed by the UN, Convention on the Rights of Persons with Disabilities, and the Charter of Human Rights and Responsibilities Act 2006 (VIC).
- The previous Mental Health Act 1986 (VIC) reflected the era of deinstitutionalisation in which it was put into practice.
THE MYTH OF INCAPACITY:
(Legal capacity vs Mental capacity)
The idea that you can't assess someone's legal capacity based on their mental capacity.
Mental capacity: Ability to make decisions
Legal capacities: Legal ability to make a contract, get married, finding a lease. Children don't have legal capacity.
You can legally refuse medical treatment until you die, however the Mental Health Act takes that right away. It takes away your legal capacity to refuse treatment, based on the idea that you make bad decisions (your mental capacity isn't adequate enough).
So people who are seen as mentally ill and unable to make good decisions does not have legal rights and therefore cannot refuse medical treatment.
In Australia, of the people who use public mental health services, about 11-15% of them are using public mental health services in the community, on a community treatment order (focused by law to use mental health services).
Of people who are in mental health inpatient units, about 55% are admitted involuntarily (forced by law/police/CATT to go to hospital).
CULTURAL AND LANGUAGE BARRIERS:
People should have needs their needs responded to and recognised, including relating to:
- Any advice, notice or information must be explained in the language, mode of communication and terms which the patient is most likely to understand.
- This applies to both oral and written information.
A person does not have a mental illness only because they adhere (or don’t) to a particular religion, or belong to a particular cultural group.
THE MYTH OF DANGEROUSNESS:
- Leading cause of preventable death for people experiencing psychosis = side effects from anti-psychotic medication (these people die 20 years younger than everyone else). We focus so much on suicide, which is often not the main cause of death for mental health patients. If we treated people's physical health like we treated mental health we would have a completely different mental health system.
- Preventing suicide is not achieved by locking someone up (we need to engage with these people) - risk categorisation has no value in attempts to decrease the number of patients who will commit suicide. (only 3% of high-risk people committed suicide in the year after discharge, while 60% of low-risk people committed suicide.)
- Some studies show increased risk of violence, others don't - it can be a positive symptom of mental illnesses such as schizophrenia, however a negative symptom is decreased risk of violence (as they may be depressed and stay in their house all day etc). Most people with mental health problems do not commit violent acts, and most violent acts are not committed by people with diagnosed mental disorders.
INDEPENDENT MENTAL HEALTH ADVOCACY:
IMHA support people who are receiving compulsory psychiatric treatment to have as much say as possible about their assessment, treatment and recovery.
- Representational advocacy model (they don't employ best-interest model)
- Coaching and capacity building
- Role modelling and systemic reform