The Code of Health and Disability Services Consumer’s Rights outlines specific rights that all users of health services in New Zealand are afforded which include, the right to dignity and independence, and the right to informed choice and consent.1 If these fundamental rights are being honoured in New Zealand then why are Maori over-represented in mental health compulsory treatment? Why are apparent rates of coercion in mental health services rising? And why are the links between compulsion and social deprivation becoming more evident in New Zealand society?
There are concerns from mental health services that people with mental illness are being subject to the overuse of compulsory treatment orders under the Mental Health (Compulsory Assessment and Treatment) Act 19922. The number of people undergoing compulsory treatment has increased significantly in the past five years3. The Act has been criticised by the Disabled People’s Organisation for its lack of human rights principles and changes to the Act are sought to make it consistent with the UN Convention on the Rights for Person’s with Disability.
The Mental Health Act was world leading when it was first drafted in 1992, however, now that it is over 20 years old it is in need of a serious review. During this time, New Zealand along with most Western countries revised legislation to reflect human rights issues of clinicians ordering compulsory treatment based on what they believed to be in the individual’s best interest. Now the Act takes into account a diagnosis of mental illness and the perceived risk or dangerousness. This is how the current Mental Health Act aims to protect individuals from harm to themselves or others; however it is still up to clinicians to determine risk and appropriateness of compulsory treatment.
Compulsory treatment gives clinicians the authority to make decisions about treatment on behalf of an individual. This method of care demonstrates a clear power dynamic between clinician and service user where the clinician holds all the power and the individual holds none. This scenario invites coercive practice despite the fact that the clinician’s intentions are pure. Coercion in this sense is grounded in the idea that professionals know what is best for their patients, more so than the patients themselves. The increase of compulsory treatment in New Zealand suggests that the use of coercion is also increasing in Mental Health care. This results in the weakening of trust and respect in the helping relationship and lends itself to unethical conduct.
An individual should be allowed treatment that is consistent with their values, cultural beliefs, expressed wishes and any advanced directive of preferences. It should be up to the individual what their subjective best interests are, and not what is solely determined by a clinician. If this healthcare philosophy is to physical health services, why is it not always applied to mental health services?
The most common argument used for the continuation of a compulsory treatment order is that the individual has a “lack of insight”. In some cases, an individual’s lack of insight is interpreted as a symptom of their mental illness. It is necessary to confront the concept of “lack of insight” as the term itself is meaningless, repressive and destructive to an individual’s recovery journey.
In an interview with Nordic health professionals, the justification for using coercion was that:
“There is an obligation to reduce and prevent suffering in people with mental illness. In situations where, because of their illness, patients do not understand that they need help, it is in their own interests that they be given the necessary care or treatment, even if it happens against their will.”4
It is widely believed that coercion and compulsory treatment is linked to protecting society from the “dangerousness” that “mentally ill” people pose. And while compulsory treatment is not controversial in cases where immediate threat to self or others is apparent, the statistics of compulsory treatment in New Zealand show that individuals who are treated based on an immediate harm measure only make up a fraction of all compulsory treatment orders5. If this was better understood by society then the misconception of mentally ill=dangerous could be reduced.
An example of compulsory treatment not associated with immediate harm to self or others is with electro-convulsive therapy (ECT) which is most often used for treatment of severe depression. In cases where an individual does not give their consent for ECT, it can still be administered if the clinician receives an affirming second opinion from another psychiatrist. In New Zealand ECT was administered by mental health clinicians without consent 495 times in 2011, and in 2012 that figure rose to 690.6
“To support personal recovery, mental health systems will need to shift away from a dominance of institutional responses, drug treatments and coercive interventions.”7
There are many alternatives to the use of compulsion and coercion in our mental health system. Firstly it is important to have a recovery focused practice that values the personal meaning of recovery over the clinical meaning of recovery. This helps individuals to live meaningful lives free of the coercive practice that lurks in a clinical setting largely focused on clinical goals, controlled by professionals. Secondly legislation around mental health and compulsory treatment needs to shift its view on the inferred dangerousness associated with mental illness.
There exists a need for a non-stigmatising method of implementing legislation. The process for compulsory treatment would need to change from identifying an individual as mentally ill, and having a perceived risk to themselves or others. Already legislators in other parts of the world have suggested a model of legislation that examines reduced decision making ability or a loss of function as opposed to labelling mental illness or diagnosis.8
Ideally clinicians would work within the framework that an individual’s personal experience and their own meaning of recovery is paramount. However, we live in a risk aversive society where clinical paradigms dominate and the concepts of “mentally ill”, “unwellness”, and “treatment” are defined by the medical elite.
Some questions to ask ourselves are: Does the Mental Health Act do what it is supposed to do? Are the review procedures supportive of those that fall under the Act? Should Mental Health service users with decision making capacity fall under compulsory treatment orders?
I would argue that the answer to all of these questions is no.
“Confining and containing offenders as punishment, or simply to prevent further offending, may be legitimate for a criminal justice system but should have no place in a health service.”9
1 HDC Code of Health and Disability Services Consumers’ Rights Regulation 1996. http://www.hdc.org.nz/the-act–code/the-code-of-rights/the-code-(full)
2 Mental Health (Compulsory Assessment and Treatment) Act 1992. http://www.legislation.govt.nz/act/public/1992/0046/latest/whole.html
3 Disabled People’s Organisations Report to the United Nations Committee on the Rights of Persons with Disabilities on New Zealand’s implementation of the Convention on the Rights of Persons with Disabilities, 4th April 2014.
4 Rigmor R.Diseth and Per A. Høglend, (2013). Compulsory mental health care in Norway: The treatment criterion. International Journal of Law and Psychiatry, 37(2014), 168-173.
5 Anthony J.O’Brien and Robert Kydd, (2013). Compulsory Community Care in New Zealand Mental Health Legislation. SAGE Open 2013 3:1-8.
6 Radio New Zealand report, 31 December 2013. http://www.radionz.co.nz/news/national/232193/ect-without-consent-branded-human-rights-breach
7 Mike Slade, Michaela Amering, Marianne Farkas, Bridget Hamilton, Mary O’Hagan, Graham Panther, Rachel Perkins, Geoff Shepherd, Samson Tse, Rob Whitley, (2014). Uses and abuses of recovery: implementing recovery-oriented practices in mental health systems. World Psychiatry 2014, 13:12-20.
8 Anthony J. O’Brien and Katey Thom, (2014). United Nations Convention on the Rights of Persons with Disabilities and its implications for compulsory treatment and mental health nursing. University of Auckland Editorial: Auckland, New Zealand.
9 Paul E.Mullen, (2000). Forensic mental health. British Journal of Psychiatry: Editorial, 176, 307-311.