Virtually all developed societies have laws which allow the enforcement of psychiatric treatment on people suffering mental illness. All states in Australia have such laws, which are quite similar in structure.

The moral justification for such legislation resides in part in John Stuart Mill’s “harm principle”, which has it that the state can intervene in the life of a person if their actions are likely to harm others, not themselves.

Recent research has indicated that basing such laws on the risk a person’s mental illness presents to the community not only reinforces stigma and the negative perceptions of the mentally ill, but also delays treatment. This latter problem often has catastrophic consequences.

In NSW, mental health legislation exists under the shadow of the “deep-sleep therapy” tragedy of Chelmsford Hospital in the 1980’s. Following this canonical event, the psychiatric profession lost much of its professional autonomy — psychiatric treatment is now closely regulated by independent tribunals and the judiciary and many treatments, such as “psychosurgery” (the surgical alteration of brain structure to relieve psychiatric disturbance), have been outlawed.

The Mental Health Act in NSW was modified in November 2007. This occurred following a consultation process involving those who suffer mental illness, their families and the health professions.

Some of the changes to the law represent an ethical challenge for the mental health professions. In the first instance, patients who are detained in mental health facilities must nominate a “carer”, who is entitled by law to be consulted on the most minor aspects of the patient’s treatment. In no other field of medical practice (bar paediatrics) do such legally mandated breaches of confidentiality exist.

In the second instance, the outlawing of “psychosurgery” is poorly defined and somewhat anachronistic. The leukotomies of the 1940’s are not part of modern psychiatric practice, yet potentially revolutionary techniques such as “deep brain stimulation” or vagal nerve stimulation are. Regardless of the progress in neuroscience research, such treatments cannot be used under this legislation.

In the third, the use of Electroconvulsive Therapy (ECT), in many cases a life-saving treatment, is micro-managed by a tribunal comprised of a lawyer, a non-medical community member, and a psychiatrist with only superficial knowledge of the patient. What this represents is a legal and community perspective intervening in clinical decision making. There are many, far more perilous interventions in medicine which are not routinely constrained by the opinions of lawyers or members of the community.

Regardless of the problems with the mental health legislation, one of the most troubling aspects of this area is the recent experience of the conduct of members of the Mental Health Review Tribunal, the independent body tasked with supervising the legislation’s implementation in NSW.

There have been numerous instances of tribunal members insisting that treatment for medical conditions (and in sporadic instances lifestyle modifications such as insisting a patient lose weight) be included on psychiatric treatment orders for people with chronic mental illness. There has been one instance, where a psychiatric treatment order included the directive that a mental health service undertakes to monitor the patient’s internet usage and report on the number of pornographic websites visited.

Even the most reckless or indifferent intravenous drug user or alcohol dependent person does not face such state paternalism, or violation of civil rights.

If the laws of a community reflect its values, what do the recent modifications of the NSW Mental Health Act say about the value we place on liberty?

Dr Robertson and Associate Professor Kerridge are from the Centre for Values, Ethics and the Law in Medicine, University of Sydney, which will hold a one-day symposium on the ethical dilemmas presented by the NSW Mental Health Act on November 27. For further info, ring 02 90363405 or email [email protected]

Peter Fray

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