Simon Katterl*

Melbourne, March 26, 2016 (Alochonaa): How much of your freedom do you presume when you voluntarily go to the doctors? Ever thought that they might not let you leave after that flu injection? What if you went there for life-saving treatment, only to be told that they don’t offer what you need? Something that you and others would consider a reasonable request.

These are the dilemmas that voluntary consumers of mental health services face. I want to try to put you in their shoes.

Yesterday I had the opportunity to facilitate a symposium on the rights of voluntary consumers. As a consumer advocate, this issue has been at the forefront of my mind when I work on inpatient and community mental health services.

The Mental Health Act and Voluntary Rights

In 2014 Victoria was hailed as the true leader in mental health reform due to it’s updated Mental Health Act 2014 (Vic) (“The MHA”). It appeared as if the benevolence of policy makers meant that consumers would finally find refuge within the law.

Despite the good intentions of the drafters, I would like to suggest a more complex or counter-narrative embodied by consumers. With the MHA’s exclusive focus on involuntary treatment, it has silenced voluntary consumers who may be experiencing coercion or neglect.

I therefore suggest that in many ways voluntary consumers are comparatively worse-off than their involuntary counterparts: they don’t know what their rights are, and they wouldn’t know how to protect them if they did.

The MHA outlines rights to:

• A written and explained Statement of Rights;
• An Advance Statement, to express your treatment preferences;
• A Nominated Person, to assist in your decision-making processes;
• A Second Opinion from another psychiatrist, where you believe an incorrect diagnosis or treatment plan has been developed; and
• Communicate. That is, to send or receive calls, letters, emails, texts etc.

The only issue here is that it’s not clear whether any of these rights are triggered under voluntary settings.

This creeping doubt means that the government can restrict your voluntary right to smoke – a major source of social and psychological support for people with trauma histories – in mental health settings. It also means that you must be granted leave so that you can exit a service that you voluntarily entered (tort of false imprisonment anybody?).

Some may suggest that there are civil and tort rights such as:

• Trespass, to person (assault & battery), property or land without consent;
• Negligence, if they fail to give you treatment or provide the wrong treatment;
• Defamation or Misrepresentation, if you feel that statements made about you in clinical settings are defamatory (see an interesting article from Grover on this issue); or
• Privacy and Confidentiality, for information that is personal and sensitive to you.

Nevertheless, these rights are virtually unheard of in a clinical setting, and there is no advertisement or empowerment of consumers to utilize them. So in a functional sense, they are not there.

The issue is that the MHA’s focus on involuntary status means that these rights are not triggered or brought into it’s jurisdiction. This is particularly concerning because services are being encouraged to process consumers voluntarily rather than resorting to involuntary treatment. So the rates of voluntary admission might rise, but the protections and rights of consumers might inversely fall.

Lawlessness

There are issues with a MHA that essentially grants coercive and police powers to medical practitioners. I’m not saying there is no place for involuntary treatment, but we need to accept that clinical decision-making takes place through texts, institutions and protocols that utilize violence (more of this contentious claim in a later text).

Nevertheless, such MHAs at least provide for the expressed provision and restriction of psychiatric power. Power can therefore be named in some limited sense, and tamed (divided up), with a little left aside for the consumer and carer.

Voluntary consumers don’t have this liberty. Their treatment operates in a lawless environment – there is no clear articulation of their rights. There is no acknowledgement – and therefore restriction – of power in clinical settings. The pamphlets, services and MHAs remain silent or their rights, meaning their concerns are illegible to the law.

If you think this is an overstatement, there are two common ways that the perverse nature of voluntariness plays out.

You’re Voluntary, until You Enter the Service

A common experience I’ve encountered is people voluntarily entering a service in crisis. Perhaps they need certain types of peer support, psychosocial interventions or particular drug regimes that have worked for them in the past (as opposed to the ones that did more harm).

Instead they are told : (1) you have a mental illness; (2) you must take your medication; (3) and you must comply with the treatment plan. Think I’m overstating it? See the opening lines from Dr Mark Cross in ABC’s 2014 Changing Minds:

“The aim for me, in getting people well, is for them to develop insight – understanding that you have a mental illness. And that you require medication, and that you will comply and adhere to a treatment plan.”

They therefore enter with a belief that they have these issues (identified by their rich life experience and carers) and needs, but are instructed that they have those (clinically determined) diagnoses requiring those pharmaceutical regimes. There is epistemological violence occurring here.

They are told they are voluntary, but that they can only enter-exit the service when granted leave, because the doors have been locked (presumably to stop their escape). They are given the impression that the treatment plan they agree to somehow overrides their rights as a voluntary consumer to refuse treatment as well as freely enter-exit the service.

They plead with staff that the medical antipsychotics they are to be placed on have profound side effects for them. They say that the diagnosis (schizophrenia, bipolar, borderline personality disorder, major depressive disorder) does not map onto their experience –  a reasonable concern given poor construct validity of psychiatric diagnoses.

So why don’t they just leave? Because there is a threat that if they do so, they will be placed on an Assessment Order and detained involuntarily. So the question remains: how voluntary are they?

You’re Voluntary, So You Can Leave Anytime…

There is a less common or identifiable issue that emerges out of this legal agnosticism. I’ve begun to witness consumers who are told “[Person], you know you are voluntary? So you just can leave if you don’t like the service here…”.

On the face of it, this doesn’t seem so bad. But dig a little deeper and talk to the people in crisis, and you feel how horrible these words must be.

A person who enters a service voluntarily often has no other place to go – that is why they are here. There may be issues of violence, trauma, self-harm or insecure housing. Often they may just need a place to rest, find meaning in what is happening to them, so that they can re-emerge ready to re-engage with the challenges waiting for them.

This requires a certain level of responsiveness from services, or in the words of the NDIS: [real] choices and control for consumers. That means the person shouldn’t have to chose between a potentially traumatic and harmful pharmacological regime, and exiting the service back into the crisis from which they came. But too often these are the options, and there is a responsibilization of consumers who escape only to fall further unwell.

For people who have a history of suicide attempts or self-harm, the threat behind these choices is real: harm in the service, or death outside it. That is the reality they face.

Where to?

We need to be having a conversation that names these themes and gaps, with an eye towards developing better legal frameworks, or further promoting the ones we have.

We need to ask questions about what types of rights voluntary consumers should have when entering services? Are they the same as those under involuntary treatment? Are they solely negative in nature? That is, are they merely protections from clinical power? Or can we start to articulate positive rights, where people have rights to responsive and agile service. There are so many available psychosocial, peer-based and drug-based approaches to mental distress, but too often services appear to adopt an illness-based response that leaves a person unsatisfied, unwell and traumatized.

Some solutions may be to extend the legal status of Advance Statements to voluntary settings in the MHA. Another would be to reform section 39 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) so that there can be a stand-alone cause of action. Moreover, we could legally test how the principles in section 11 of the MHA apply to voluntary settings.

A legal response might not necessarily be the appropriate one. But in the creation and application of the MHA we have created a legal, human rights and discrimination issue that needs resolution.

*Simon Katterl is a consumer advocate in mental health. This means he uses his university studies in law, politics and psychology, as well as his lived experience of mental distress, to advocate for the rights of service users. Crossposted via his blog Critical Mental Health.

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