The Legal Context of Social Work Practice: An examination of the history of Victorian Mental Health Act (1986) and changes in social policy and human rights legislation that lead to the introduction of the Exposure Draft Mental Health Bill (2010), and associated implications for Social Workers. Introduction: This paper looks briefly at the history of mental health, mental health legislation and the development of social work in Victoria.
It then explores the socio-political climate which led up to the introduction of the Victorian Mental Health Act (1986) and subsequent Exposure Draft Mental Health Bill (2010) and considers the impact on the role of social workers as implicated by legislative changes and proposals. A Broad Overview of Mental Health and early Legislation in Victoria: The first Victorian Act to deal with mental health was the Lunacy Act 1867, which was passed after only eleven years of the first sitting of Victorian Parliament ( it contains 190 sections, which amount to 99 pages of the statute book (Rees, 2007, p. ). Such was the perceived need for statutory law, in a colony that largely comprised convicts from England, plus those it had taken in seeking their fortunes through the Gold Rush of the 1850s. That primary Act established the nexus for subsequent mental health legislation, being the statutory denial of personal freedoms or liberties ( those of movement and of bodily integrity (Rees, 2007, p. 3).
Whether these losses of liberties are an act of beneficence or of paternalistic management of the mentally ill, are still subject to consideration by social workers. Section 8(1) (c) of the Mental Health Act 1986, refers to the persons health or safety (whether to prevent a deterioration in the person’s physical or mental condition or otherwise) or for the protection of members of the public. When working with the mentally ill in particular, social workers need to consider the notion of client’s harm to self or to others in their case evaluation.
Whilst empowerment and a strengths based perspective are utilized by social workers where and as possible, should a client demonstrate lack of insight, suicidal ideation or threaten others, for example, a social worker needs to exercise particular duty of care in their decision making process, and may need to override their client’s right to confidentiality. Based on a medical model, the 1986 Act does not specifically mention social workers, it refers only to medical practitioners, psychiatrists and guardians, but social workers play a significant role in the treatment and care of the mentally ill, and are bound by the Act.
In 1914, s. 8 of the Lunacy Acts Amendment Act first allowed the admission of patients on a voluntary basis, that is, on a patient’s own request for a specified period of time, “in order to advance the cause of early intervention” (Rees, N. , 2007, p. 4, italics mine) ( albeit a personally ascribed and not a prescribed early intervention, as is a current social work model and nomenclature. Voluntary admission rights, in principle however remain to this day, but when the Mental Health Act 1986 was amended in 1996, voluntary admission was no longer covered by the Act (www. hrb. vic. gov. au/legislation/legislation. htm). Victoria’s first institution for the mentally ill, the Yarra Bend Lunatic Asylum, was established in 1848, a mere thirteen years after colonial settlement (Rees, 2007, p. 3). Prior to the establishment of this Asylum, the government had taken no steps to ensure care of the mentally ill, who were either left to wander the streets, or if they ‘caused a disturbance’, were incarcerated in the Collins Street gaol.
The Asylum housed both male and female occupants and operated from 1848 until 1925, when admissions ceased and patients were relocated to Mont Park Hospital for the Insane, which had opened in 1912. The Asylum’s bluestone buildings became a part of Fairlea Women’s Prison, which operated between 1925 and 1993, re-linking mental illness with a penitentiary detention centre (dhe. darebin-libraries. vic. gov. au/encyclopedia. asp? id=65). Between 1987 and 2000, Victoria closed all 16 of its stand-alone psychiatric hospitals.
It was the only state to do so at that time (Victorian Dual Diagnosis Initiative, 2010, p. 9). The Victorian Mental Health Act (1986) was passed in early 1986, inter alia, in order to repeal the Mental Health Act 1959 which had remained in force for 25 years (Rees, 2007). The 1959 Mental Health Act was an Act to repeal the Mental Hygiene Act 1933. Under the 1933 Act, the Lunacy Department became known as Department of Mental Hygiene and was situated within the new Department of Health.
It was responsible for the development and direction of policy governing the treatment of the ‘mentally ill, the intellectually handicapped and inebriates’ and for the establishment and administration of institutions for their care for the period 1934 to 1944 (www. pathwaysvictoria. info/biogs/E000543b. htm). The Mental Hygiene Act 1933 also altered the title of all “hospitals for the insane” to “mental hospitals” and repealed the Lunacy and Mental Treatment Acts 1867 to 1930, and the Mental Deficiency Acts, 1913 to 1938.
In 1962, the Mental Hygiene Branch was reconstituted as the Mental Health Authority (1962 – 1978) under provisions of the Mental Health Act 1959. There were new pharmacological developments in the treatments available for the management of mental illness, particularly with regard to psychotic disorders, post WW2 which included the discovery of lithium and development of Largactil/Chlorpromazine, (www. drugs. com). These, and other new medications, enabled some patients to manage their symptoms in the community, subverting the need for institutionalization of all sufferers.
This suited government as mental hospitals were already overcrowded and becoming more-so. Post WW2 had also seen an increase in migration of non-English speaking peoples and with the concept of eugenics, psychiatrists tended to ascribe greater levels of mental illness to migrants (Robson, 2008, p. 5). With increased prescription of these new medications however, deinstitutionalization was able to commence, and the number of patients in Victorian psychiatric hospitals subsequently declined by 33 per cent between 1963 and 1973 (Robson 2008, p. ) for example. A Broad History of Social Work in Victoria: The commencement of social work education in Victoria is largely regarded as commensurate with the formation of the Victorian Institute of Hospital Almoners in 1929. The Institute offered a two-year course incorporating some general social work education and more specific almoner training until 1933, when a Board of Studies was appointed to supervise a social work course. In 949 the Board of Social Studies at the University of Melbourne took over the training responsibilities of the Victorian Institute of Hospital Almoners, which subsequently closed. (www. socialwork. unimelb. edu. au/about_us; Lawrence, 1976, p. 6). With regard to the profession of social work, the Australian Association of Social Workers (AASW) was formed in 1946, and from June 1947, “only qualified social workers were admitted to membership” (Lawrence, 1976, p. 23). By 1949, the AASW already had some 300 members (Lawrence, 1976, p. 6). Nowadays there are some 6,000 AASW members (www. aasw. asn. au). From around the 1970s social workers, began operating from an empowerment and strengths based perspective and, more critically, gave greater consideration to the biopsychosocial dynamics of their client’s circumstances. Taking such a holistic approach to assessment saw greater recognition of environmental factors affecting the mental health of clients. Housing, for example, was recognized a critical factor affecting a persons mental health.
With greater acknowledgement of the impact of environmental and social conditions, and the episodic nature of mental illness, the Recovery Based Model (Farkas et al, 2005) became a principle framework for psychosocial rehabilitation from the 1990s. The Victorian Mental Health Act 1986: The basis of the Victorian Mental Health Act 1986 (the Act) included provision for the care, treatment and protection of persons who are mentally ill, to establish a Mental Health Review Board, to define the role of the Department of Health with respect to mental health and to repeal the Mental Health Act 1959, among other purposes (www. hrb. vic. gov. au/legislation/hist_policy. htm). Those sections of the Act that dealt with the purpose and definitions and which set up the Mental Health Review Board and its staff came into effect in June 1987. The substantive parts came into operation on 1 October 1987, some 18 months after the Act was passed (www. mhrb. vic. gov. au/legislation/hist_policy. htm; Rees, 1987, p. 244). The original Bill was brought before Parliament in the mid-1980s and was subjected to over 100 amendments before the Act was finally passed (Rees, 2007, p. ). While the Act introduced provisions which perhaps reflected a commitment to deinstitutionalist policy (eg. see Mental Health Act 1986 – s 6A) as argued by Rees (2007, p. 6) however, “There is nothing in the original 1986 Act, or in important associated documents, such as the Minister’s second reading speech, which reveals that the large hospitals which housed most of the people to whom the Act was directed would be closed within a matter of years and without one stroke of the legislator’s pen. ” While the Act s. A(f) states that people with a mental disorder should be treated near their homes or the homes of relatives or friends wherever possible, indeed there is no mention of ensuing hospital closure within the Act. One of the Act’s primary Objects is that people with a mental disorder are given the best possible care and treatment appropriate to their needs in the least possible restrictive environment and least possible intrusive manner consistent with the effective giving of that care and treatment (s. 4, 2a).
At face value this section may appear to re-instate the personal freedoms or liberties, of movement and of bodily integrity, but it does not do so. The Act, s. 14 for example, included the introduction of Community Treatment Orders (CTO’s), which enabled people with mental illness to be monitored in the community, as opposed to incarceration, or having no follow up care ( there had been difficulties in ensuring that those formerly institutionalized and now living in the community, and the newly diagnosed, had adequate treatment and care.
CTO’s however, which are largely involuntary, can intrude upon freedom of bodily integrity as they may specify where a person must live if such a direction is considered necessary for the treatment of the person’s illness (Rees, 2007, p. 15; s. 14(3)b Mental Health Act 1986). When the Act was amended in 1988, s14 was considerably rewritten. Power was given to an authorized psychiatrist to revoke a CTO. When revoked, the person is deemed to be an involuntary patient who is absent without leave and may be apprehended by the Police at the request of the authorized psychiatrist ( a gross infringement upon freedom of bodily integrity. www. mhrb. vic. gov. au/legislation/legislation. htm) The Act was further amended in 1996, following the state and territory wide 1992 endorsement of the National Mental Health Policy. That Policy was a response to the development of trends in mental health care in Western society which supported a community oriented approach to the recognition and treatment of mental illness. (http://www. mhrb. vic. gov. au/legislation/hist_policy. htm#d_pol).
In 1991, the United Nations General Assembly had adopted Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care, with Australia as a signatory. These Principles made it clear that it is not acceptable to have lower standards for the mental health system than for the rest of the health system, whether in relation to treatment and care or resources and that it is not acceptable for people with mental illness to enjoy a lower standard of human rights than other people (Sidoti, 1997).
Precursors to the Exposure Draft Mental Health Bill (2010): In 1993 the Human Rights and Equal Opportunity Commission (HREOC) released its Report of the National Inquiry into Human Rights of the Mentally Ill, which found that since the advent of deinstitutionalization, the treatment, rehabilitation and social participation of people with mental illness were below the standard of a caring society (Robson, 2008, p. 13).
The recommendations of the Inquiry covered a wide range of areas including inpatient and community treatment and care of people affected by mental illness, the rights of carers, the special needs of particularly disadvantaged groups, accommodation, employment, professional training and education, community education, research, prevention and early intervention, and the reform of mental health and related legislation.
The Report also found that the level of ignorance and discrimination still associated with mental illness and psychiatric disability in the 1990s is unacceptable and must be addressed and that people affected by mental illness are among the most vulnerable and disadvantaged in our community. They suffer from widespread systemic discrimination and are consistently denied the rights and services to which they are entitled (www. hreoc. gov. au/human_rights/mental_illness/national_inquiry. tml). In July 2006, The Victorian Charter of Human Rights and Responsibilities became law. The preamble to the Charter outlines its founding principles, recognising that all people are born free and equal in dignity and rights. The Charter ensures human rights are valued and protected within government and the community. The Charter sets human rights as a priority for government, and ensures government takes human rights into account when making laws and delivering services.
With regard to freedom, the Charter embodies that: People who are in Victoria lawfully have the right to enter and leave the State, to move around freely within it and to freely choose where they live. ( www. equalopportunitycommission. vic. gov. au). Seemingly, some aspects of CTO’s denied some people in Victoria to freely choose where they live. When the Victorian Disability Act 2006, for example, was passed in May of that year, it was commensurate both with the findings of the 1993 HREOC Report, and with the Charter.
On 8 May 2008, the Victorian Labor government (October 1999 – December 2010) commenced its review of the Victorian Mental Health Act 1986 (the Act). The review examined whether the Act provided an effective legislative framework for the treatment and care of people with a serious mental illness in Victoria and aimed to ensure that the Act appropriately protects human rights in light of the Charter. (www. health. vic. gov. au/mentalhealth/mhactreview). The Review received a broad range of submissions, particularly from those directly affected such as consumers, consumer advocacy bodies (eg.
Victorian Mental Illness Awareness Council), Area Mental Health Services, carers and carer advocacy bodies (Carers Victoria and The Carers Network) for example. In July 2009, the Victorian government published its findings in Review of the Mental Health Act 1986, Community Consultation Report. The key drivers for recent mental health reform therefore were changes in government policy, greater recognition of human rights and stakeholder advocacy. Exposure Draft Mental Health Bill (2010):
In September 2010 the Government announced an exposure draft process as part of the final stages of the review of the Mental Health Act 1986 (www. health. vic. gov. au/mentalhealth/mhactreview). The Bill is founded upon the supported decision making model whereby people with mental illness are able to make their own decisions about their treatment and care, is consistent with human rights principles, and is in common with a recovery approach (Victorian Government, Department of Health, 2010). Key features of the Bill include carer involvement and a nominated person scheme.
The scheme enables a patient to nominate a person who will receive information about his/her treatment and care and provides an avenue for protection of confidentiality by ensuring that potentially sensitive information is not disclosed against the patient’s wishes (Victorian Government, Department of Health, 2010). For social workers, this means they could legally discuss issues of client treatment and care with another party, ie the nominated person, who may indeed also be the primary carer.
This in and of itself ought to ease ethical practice and make for more effective treatment, care and recovery planning. Whether or not the Bill is passed is largely up to the incumbent Liberal government. While they ran a strong mental health focus in their recent election platform, we are yet to see any action in these early days of their governance. As a student of social work hoping to eventually work in the field of mental health, I look forward to enactment of such law, so that it may guide and direct my practice. References: Brophy, L. and Healy, H. , 2009, Law, Psychiatry and Social Work, in Swain, P. , and Rice, S. , (eds), 2009, In the Shadow of the Law: The Legal Context of Social Work Practice, The Federation Press, 3rd edition, pp. 406 – 423 Farkas, M. , Gagne, C. , Anthony, W. , and Chamberlin, J. , 2005, Implementing Recovery Oriented Evidence Based Programs: Identifying the Critical Dimensions, Community Mental Health Journal, Vol. 41, No. 2 Lawrence, J. , 1976, Australian Social Work: Historical, International and Social Welfare Context, in Boas, P. , and Crawley, J. (eds), 1976, Social Work in Australia: Responses to a Changing Context, Australia International Press and Publications Pty Ltd National Mental Health Consumer and Carer Forum, Privacy and Confidentiality Issues Paper, NMHCCF, 2009 Rees, N. , 1987, Victorian Mental Health Legislation, in Berah E. , and Greig, D. , (eds. ), Community Issues in Psychiatry, Psychology and Law: Proceedings of the 8th Annual Congress of The Australian and New Zealand Association of Psychiatry, Psychology and Law, Melbourne. Rees, N. , 2007, Learning from the Past, Looking to the Future: Is Victorian Mental Health law Ripe for Reform?
Keynote address, Mental Health Review Board of Victoria’s 20th Anniversary Conference, 6 December 2007, Melbourne. Robson, B. , 2008, From Mental Hygiene to Community Mental Health: Psychiatrists and Victorian Public Administration from the 1940s to 1990s, The Journal of Public Record Office Victoria, September 2008, Number 7. ISSN 1832-2522. URL://www. prov. vic. gov. au/provenance/no7/MentalHygienePrint. asp, retrieved 12 December 2010 Sidoti, C. , 1997, Mental Health For All: What’s The Vision? , National Conference on Mental Health Services, Policy and Law Reform into the Twenty First Century, http://www. reoc. gov. au/disability_rights/speeches/1997/mental. htm retrieved 12 December 2010 Victorian Dual Diagnosis Initiative, 2010, Dual Diagnosis Training for the Psychiatric Disability Support Services Sector, Drugs and Mental Health Division of the Department of Health, Victoria Victorian Government, 2008, Because Mental Health Matters: A new focus for mental health and wellbeing in Victoria, Victorian Government Victorian Government, 2010,Exposure Draft Mental Health Bill 2010, Victorian Government, September 2010
Victorian Government, 2008, Victorian Mental Health Reform Strategy 2009-2019: Implementation Plan 2009-2011, Victorian Government Victorian Government, 2008, Review of the Mental Health Act 1986: Consultation Paper, Victorian Government, December 2008 Victorian Government, July 2009, Review of the Mental Health Act 1986, Community Consultation Report, Victorian Government, 2009 Victorian Government, Department of Health, 2010, Information sheet 1: Supported decision making, improving patient participation and carer involvement, www. health. vic. gov. au/mentalhealth/mhactreview