A New Mental Health Act for Victoria?
Better, but not good enough.
Note: this article contains subject matter which may be triggering for some people. It mentions types of trauma (but not specifics), and talks about ECT and involuntary treatment.
The Victorian government has released proposed reforms for a new Mental Health Act. This is the legislation that governs involuntary treatment in mental health services.
It’s certainly about time: Victoria has the oldest mental health act in Australia (1986), and we also have one of the highest rates of community treatment orders (CTOs) in the world (Mental Health Legal Centre, 2009).
This article is my first review on the proposed new legislation. The review is from both of my perspectives: lived experience as a consumer of the mental health system, including lived experience of involuntary treatments; and as a mental health worker, educator and program manager.
The proposed reforms are certainly an improvement, but in my view they don’t go anywhere near far enough.
New & improved, mostly.
While I am dissatisfied with much of the proposed new reforms, there are actually some very positive shifts forward.
It’s great to see the inclusion of advance statements, supported decision making, a mental health complaints commissioner with genuine powers, more advocates, and the inclusion of recovery practice and trauma-informed care.
A new presumption of capacity recognises that our ability to make our own decisions fluctuates, but the first presumption is that we are capable.
There is also an aim to always promote our maximum involvement in decision making, supported by new advocates and nominated support people. This is called ‘supported’, rather than ‘substituted’ decision making.
Recognition of advance statements is also an extremely positive direction, although I believe that treating doctors will still be able to over-ride a person’s wishes if they can justify it.
This loophole is disappointing – if we presume capacity, then surely we should respect advance statements and instead make them advance directives which are enforceable in law?
The reform document states that it aims to come into alignment with the UN Convention on the Rights of Persons with Disabilities, yet this issue around advance statements does not appear to be consistent. Article (4) of the convention calls for individual autonomy including the freedom to make one’s own choices, as well as non-discrimination.
Yet how is this possible when people diagnosed with mental illness are not able to utilise Refusal of Treatment protections available to all other citizens?
Advance statements are a great leap forward, but until our advance wishes are fully protected in law as directives, they do not go far enough.
Compulsory Treatment in General
It is extremely positive to see a lot of language in the document about ‘least restrictive practice’. But at the end of the day the devil will be in the detail. What does ‘serious deterioration’ actually mean? This is an extremely subjective area, and while the intent may be good, the reality may not shift much from our present position.
Personally, I do not support compulsory treatment at all, but I am also a somewhat pragmatic revolutionary, and recognise that, as much as I would like it, we probably can’t change everything at once.
Nevertheless, we must remember that the vast majority of compulsory psychiatric treatments are in fact in conflict with the Convention on the Rights of Persons with Disabilities (CRPD).
A statement issued by the UN in 2008 (Nowak, cited in Minkowitz, 2011) precludes compulsory or “enforced” treatment:
“It (the CRDP) also narrows the scope of torture/ill-treatment to unconsented treatments “of an intrusive and irreversible nature”….
Furthermore, these treatments could only constitute torture or ill-treatment if they lack a therapeutic purpose or aim at correcting or alleviating a disability….
Treatments might lack a therapeutic purpose if done for the convenience of others, for behavior control….
This could apply to many uses of mental health treatments, such as the administration of drugs or electroshock to quiet aggressive or distressed individuals against their will.”
While we retain substantial involuntary treatments, the introduction of new mental health tribunals sounds positive, except for the proposed representation: a doctor (preferably a psychiatrist), a lawyer, and a community member.
It seems very likely to me (based on what we currently see happen in psychiatry) that the tribunal psychiatrist is likely to agree with the treating psychiatrist, and that two tribunal professionals are likely to agree with each other. It feels like a stacked deck.
I propose that a fourth member is added to the committee: a peer representative. This provides two additional safeguards.
Firstly, it adds someone with lived experience who can take on the perspective of the person receiving treatment. The nature of these treatments can be so severe and disabling that a lived perspective is an important protective factor.
Secondly, a fourth member creates a more even power balance, and the possibility for the tribunal to ‘tie’ in its decision. Where a tie is reached, treatment should either not proceed, or be referred to a court of law as it would for any citizen.
Retaining Involuntary ECT
I am extremely disappointed that involuntary Electro-Convulsive Therapy (ECT) will still be possible, albeit more difficult, under the proposed new reforms.
At the moment involuntary ECT just requires the signature of a second psychiatrist (which is far too simple), but under the proposed changes it will require approval from a new tribunal (replacing the current mental health review boards).
This is better, but not good enough. For a treatment which almost certainly bases its ‘success’ on causing brain damage, I believe any involuntary use of ECT is inappropriate:
“Dr Peter Breggin, a well-known critic of modern psychiatry, has reviewed the research conducted on ECT and concluded that it was the brain damage caused by ECT which explained its so-called ‘effectiveness’.
Ironically, a leading supporter of ECT in the USA, Dr Max Fink, has also stated that where there is no evidence of brain damage, there is no improvement: ‘Where there is no evidence of impaired mental function and no electroencephalographic alteration [changes in recorded brain waves] clinical improvement does not occur.’”
ECT is a topic fraught with emotion, and my perspective is no exclusion.
Many years ago I had 12 sessions of involuntary, bilateral (both sides of the brain) ECT. I suffered substantial memory loss, some of which returned, but large chunks did not.
Like many others who have experienced ECT, my symptoms lifted, but only for a few months. Then I was right back where I started, but there was less of ‘me’ left.
What is more concerning to me than the memory loss is how the involuntary aspect of the experience affected me.
As a survivor of childhood neglect, bullying, abduction and rape (and these types of experiences are very common amongst mental health system consumers), the way in which I receive treatment is very important. When I am unwell, I am reliving those painful experiences, particularly the rape.
So I ask you to imagine the effects of being subjected to a violent treatment against my will, which invaded my body and stole my memories.
Involuntary ECT for me was always tantamount to a mind rape. The experience made me highly mistrustful of clinical services, prevented me on many occasions from being honest about my distress and seeking help, and dramatically increased my sense of helplessness and hopelessness. When I was most unwell, I took the experience to be evidence for how awful I was, and believed that the treatment was punishment for my ‘sins’.
This is the furthest from recovery-based, trauma-informed care that I can imagine.
Personally, I am highly dubious of there being any genuine, lasting therapeutic benefits from ECT, but I cannot discount those people who claim it was lifesaving for them. So be it. But involuntary application of ECT is another matter entirely.
I sincerely hope that during the process of debating these reforms that we remove involuntary ECT from any future legislation. The rights to retain our memories and our dignity should surely be inviolable?
Want to find out more about ECT? Mind UK have compiled this very well-balanced report on electro convulsive therapy.
Seclusion and restraint: sticking out like a sore thumb.
While the seclusion and restraint project has reduced incidences of this ‘treatment’ across Australia, both practices are still used on a daily basis in the vast majority of psychiatric wards.
“Seclusion and restraint are often used despite the lack of evidence that they offer positive health outcomes. Indeed, seclusion and restraint are commonly associated with further trauma, risk of violence and potential human rights abuse….
As with so many areas of mental health, it is not as if we lack an evidence-based approach, we just choose not to fund or deploy it. There is now clear evidence from overseas about a better and more effective approach to patient care. Early indications from the Australian pilot of the same approach seem to demonstrate its merit when applied here, rendering seclusion and restraint unjustifiable and outmoded forms of clinical practice.”
(Prof. Hickie, NMHCCF, 2009)
I challenge the Victorian government to take a stand. Instead of trying to limit the use of seclusion and restraint, why not use this legislative opportunity to lead the rest of Australia? Use this legislation to set a date for the end of seclusion and restraint in mental health.
There is no longer any question that psychiatric wards can manage without seclusion. Many hospitals around the world are doing it just fine, even right here in Victoria, at Barwon Health.
The continued inclusion of coercive practices in the proposed new legislation creates a glaring inconsistency in the proposed reforms. On the one hand, the reforms require trauma-informed treatment, and recovery and evidence-based treatment.
Seclusion and restraint are none of these. They stick out like a sore thumb.
If seclusion or restraint had never been used before, and were presented as a new therapeutic idea at a contemporary ethics committee, we all know that they would never be approved. So why are they still here?
Ending seclusion and restraint is complex, but eminently possible. It is important, however, that we do it right, and learn from lessons of the past, such as when we failed to commit adequate community services before deinstitutionalisation back in the 1980s.
A big risk in this situation is that we just swap from physical to chemical restraint, when what we really need is:
(1) Staff who are out with patients, not stuck in the ‘fishbowl’ office. This in turn requires consumer-led training which addresses attitudinal shifts, and reductions in bureaucratic loads on nurses;
(2) Staff who are skilled in patient engagement and de-escalation strategies (more investment in training is required here too); and
(3) Services with adequate resources to support patients to cope with and process difficult experiences and emotions, such as exercise equipment, arts facilities, talking therapies, sensory rooms and peer support.
If we are serious about delivering high quality mental health care, then it is time to draw a line in the sand. Commit the necessary resources for implementing the change process – and set a date for the end of coercive, traumatising practice in mental health.
I look forward to debate over the coming year around these issues, and welcome your comments for inclusion in my next newsletter.
Hickie, I., in National Mental Health Consumer & Carer Forum (2009). Ending Seclusion and Restraint in Australian Mental Health Services: A Position Statement by the National Mental Health Consumer & Carer Forum (NMH CCF).