Law Reform or Systemic Reform? Stakeholder Perceptions of Resource Constraints in Mental Health in Australia, New Zealand and Canada

Abstract

This article examines resource constraints in the mental health systems in Australia, New Zealand and Canada in light of the results of a qualitative study analysing interviews with 65 representatives of consumer and carer organisations, lawyers, judges and mental health professionals conducted between September 2008 and December 2010. The interviews were analysed using grounded theory, and an unanticipated finding was that resource constraints in mental health law and practice emerged as the most discussed theme. The analysis revealed that participants were concerned about (1) the futility of law reform without the injection of adequate resources in their mental health systems; (2) the types of resources that they perceived were lacking; and (3) the consequences of those resource constraints on the operation of mental health systems at a systemic level. This paper highlights the importance of systemic factors in the development of mental health law, policy and practice.

Key words:

• mental health
• resources
• law reform
• systemic reform
• qualitative research
• interviews
• Australia
• New Zealand
• Canada

Acknowledgements

I am grateful to Professor Bernadette McSherry, Director of CALMH, Faculty of Law, Monash University, Victoria, Australia, for her comments, guidance and support. Together, we would also like to thank all the participants in this study for their time and invaluable insights about mental health law, policy and practice in their jurisdictions.

Notes

 1. John Petrila, ‘Rights-Based Legalism and the Limits of Mental Health Law: The United States of America's Experience' in B McSherry and P Weller (eds), Rethinking Rights-Based Mental Health Laws (Hart Publishing, 2010).

 2. See for example Brown v Plata [2011] 563 US 1; Ian Freckelton, ‘Cruel and Unusual Punishment of Prisoners with Mental Illnesses' (2011) Psychiatry, Psychology and Law 18(3), 329–340.

 3. Peter Bartlett, ‘Thinking about the Rest of the World: Mental Health and Rights Outside the “First World”’ in B McSherry and P Weller (eds), Rethinking Rights-Based Mental Health Laws (Hart Publishing, 2010).

 4. Penelope Weller, ‘Lost in Translation: Human Rights and Mental Health Law' in B McSherry and P Weller (eds), Rethinking Rights-Based Mental Health Laws (Hart Publishing, 2010), 57.

 5. World Health Organisation, Mental Health, Human Rights and Legislation: WHO's Framework <http://www.who.int/mental_health/policy/fact_sheet_mnh_hr_leg_2105.pdf> accessed 21 February 2012.

 6. Amanda L Neil, Terry J Lewin, Vaughan J Carr, ‘Allocation of Resources and Psychosis' [2003] Australian and New Zealand Journal of Psychiatry 37, 15–23; Helen M Lapsley, ‘Deinstitutionalisation for Long-term Mental Illness: Cost Differences in Hospital and Community Care' [2000] Australian and New Zealand Journal of Psychiatry 34, 491–495.

 7. L Newton, A Rosen, C Tennant, C Hobbs, H M. Lapsley, K Tribe, ‘Deinstitutionalisation for Long-term Mental Illness: An Ethnographic Study' [2000] Australian and New Zealand Journal of Psychiatry 34, 484–490.

 8. Bernadette McSherry, ‘Mental Health and Human Rights: The Role of the Law in Developing a Right to Enjoy the Highest Attainable Standard of Mental Health in Australia' [2008] Journal of Law and Medicine 15(5), 773, 776.

 9. Nancy K Rhoden, ‘Law and Psychiatry Part II: The Limits of Liberty: Deinstitutionalization, Homelessness, and Libertarian Theory' [1982] Emory Law Journal 31, 375–440.

10. Ralph Slovenko, ‘The Transinstitutionalisation of the Mentally Ill' [2003] Ohio Northern University Law Review 29, 641–660.

11. World Health Organisation, Mental Health Financing (World Health Organisation, 2003).

12. Report of the Committee of Inquiry into Procedures used in Certain Psychiatric Hospitals in Relation to Admission, Discharge or Release or Leave of Certain Classes of Patient Wellington (The Committee, 1988).

13. Inquiry under Section 47 of the Health and Disability Services Act 1993 in Respect of Certain Mental Health Services: Report of the Ministerial Inquiry to the Minister of Health, Hon. Jenny Shipley (Ministry of Health, Wellington, 1996).

14. Robert Bernstein and Chris Koyanagi, Disintegrating Systems: The State of States' Public Mental Health Systems (Bazelon Center for Mental Health Law, 2001).

15. Ibid, 14–15.

16. G Groom, I Hickie and T Davenport, ‘Out of Hospital, Out of Mind!' A Report Detailing Mental Health Services in Australia in 2002 and Community Priorities for National Mental Health Policy for 2003–2008 (Mental Health Council of Australia, 2003).

17. Mental Health Council of Australia, Brain and Mind Research Institute and Human Rights and Equal Opportunity Commission, Not for Service: Experiences of Injustice and Despair in Mental Health Care in Australia (Mental Health Council of Australia, 2005).

18. Senate Select Committee on Mental Health, A National Approach to Mental Health – From Crisis to Community, First Report (Select Committee on Mental Health, 2006).

19. Roy J Romanow, Building on Values: The Future of Health Care in Canada – Final Report (Commission on the Future Health Care of Canada, 2002).

20. Michael J L Kirby and Wilbert Joseph Keon, Out of the Shadows at Last: Transforming Mental Health, Mental Illness and Addiction Services in Canada (Parliament of Canada, The Standing Committee on Social Affairs, Science and Technology, 2006).

21. Ibid.

22. R L O'Reilly, Gary Chaimowitz, Aileen Brunet, Karl Looper, Philip Beck, ‘Principles Underlying Mental Health Legislation' [2010] Canadian Journal of Psychiatry 55(10), 1–5.

23. Mental Health Commission of Australia (n 17), 38.

24. Australian Government. Commonwealth Budget 2011–2012, Delivering Better Hospitals, Mental Health and Health Services <http://www.budget.gov.au/2011-12/content/glossy/health/html/health_overview_01.htm> accessed 14 February 2012.

25. New Zealand Ministry of Health, Mental Health and Addiction Action Plan 2010 < http://www.health.govt.nz/publication/mental-health-and-addiction-action-plan-2010> accessed 14 February 2012; Mental Health Foundation of New Zealand ‘Mental Health Quick Statistics' <http://www.mentalhealth.org.nz/resourcefinder/listings/resource/168/quick-facts-and-statistics/#content-329> accessed 18 May 2011.

26. Canadian Mental Health Association, ‘Fast Facts: Mental Health/Mental Illness' <www.cmha.ca/bins/content_page.asp?cid=6-20-23-43&lang=1> accessed 18 May 2011.

27. For example, in Australia and Canada the mental health budget is around 6–7% of the overall health budget and both jurisdictions are in the process of preparing a 10-year mental health plan, whereas the New Zealand mental health budget is around 11% of the overall health budget and a detailed mental health and addiction plan is in place, as well as the adoption of a recovery approach to mental illness. The promise of $1.5 billion of new money for mental health over 5 years in Australia in the May 2011 budget is a step in the right direction; but it requires cooperation of the states, most of the spending is in year 4–5, and it has generated considerable controversy. See ‘Mental Health Funds to Transform Sector' Bigpond News [2011 10 May] <http://bigpondnews.com/articles/FederalBudget2011/2011/05/10/Mental_health_funds> accessed 10 May 2011; ‘Mental Health Funding Welcomed in Federal Budget 2011' Herald-Sun [2011 10 May] <http://www.heraldsun.com.au/news/special-reports/mental-health-funding-welcomed/story-fn8mems4-1226053590172> accessed 15 November 2011; Jill Stark ‘McGorry Accused of Conflict of Interest' [2011 7 August] The Age http://www.theage.com.au/national/mcgorry-accused-of-conflict-of-interest-20110806-1igxd.html accessed 7 August 2011.

28. Terry Carney, ‘Involuntary Mental Health Treatment Laws: The “Rights” and the Wrongs of Competing Models?' in B McSherry and P Weller (eds), Rethinking Rights-Based Mental Health Laws (Hart Publishing, 2010), 260.

29. A five-year Australian Research Council Federation Fellowship was awarded to Professor Bernadette McSherry in 2007. The main aim of the Federation Fellowship project entitled Rethinking Mental Health Laws is to explore the role the law has and should have in improving access to optimal mental health care and promoting and maintaining good mental health. As well as the Federation Fellow, the research team for the project now includes a part-time professor, a postdoctoral research fellow, nine doctoral students, a research associate, an executive officer and three research assistants.

30. Lyn Richards, Handling Qualitative Data: A Practical Guide, 2nd ed (Sage, 2009), 34.

31. S Goldberg, M Killeen and B O'Day, ‘The Disclosure Conundrum: How People With Psychiatric Disabilities Navigate Employment' [2005] Psychology, Public Policy and Law 11, 463–500, 470.

32. Ibid.

33. Carol I Ping Tsao, Aruna Tummala and Laura Weiss Roberts, ‘Stigma in Mental Health Care' [2008] Academic Psychiatry 32(2), 70–72.

34. The interviews were conducted by Professor Bernadette McSherry, ARC Federation fellow, Dr Penny Weller, postdoctoral research fellow, and Ms Danielle Andrewartha, research associate.

35. Participants have yet to be interviewed in Queensland and the Northern Territory.

36. The researchers decided to be very specific with how they categorised the role of participants rather than combining them into broader representative groups, such as clinicians or legal professionals. Given the high calibre of the expertise of the participants, many had more than one role in the mental health system currently or in the past; and this was also taken into account when the participants were classified into their roles. For example, one participant was a carer representative/lawyer.

37. Two interviews conducted in the Australian Capital Territory involved two interviewees per interview, one interview conducted in Victoria involved three interviewees, one interview conducted in New Zealand involved two interviewees; one interview in Ontario involved three interviewees.

38. Three examples of supplementary questions were: (i) in a the context of a discussion about lack of prison facilities, “So, anecdotally, would you say that there's people in the correctional facilities that really should be in forensic facilities due to the shortage of beds?” (ii) during a discussion about lack of early intervention, “Do you see a way that we could enhance the front end approach? How would you see us able to, as a community, identify people in need, particularly, in cases where there isn't a support network, there isn't family, there isn't friends?” (iii) in relation to a discussion about resource constraints, “Do you think the problem there is a legislative one, or is it more in relation to facilities not being there?”

39. N L Leech and A J Onwuegbuzie, ‘Beyond Constant Comparison Qualitative Data Analysis: Using NVivo' [2011] School Psychology Quarterly 25(1), 70–83.

40. Ibid, 76.

41. As Margarete Sandelowski points out, using descriptions such as “very few” or “many” can be misleading, and actual numbers of participants expressing a particular view should be disclosed to allow the reader to judge for themselves the weight they place on a particular claim: M Sandelowski, ‘Real Qualitative Researchers Don't Count: The Use of Numbers in Qualitative Research' [2001] Research in Nursing & Health 2, 230–240. See also Richards (n 30), 37–9; A Bryman and R G Burgess ‘Reflections on Qualitative Data Analysis' in A Bryman and R G Burgess (eds), Qualitative Data Analysis (Routledge, 1994), 224. In contrast, Patricia Bazeley points out that “there are some, indeed, who would argue that a single case can be a sufficient base from which to generalize for a particular culture, from the point of view that the basic structures of social order pervade the cultural setting, and so will be evident within any case which has been part of it” P Bazeley, Qualitative Data Analysis with NVivo (Sage, 2007), 126–7.

42. Leech and Onwuegbuzie (n 39), 77.

43. Ibid, 75.

44. A Straus and J Corbin, Basics of Qualitative Research, 2nd ed (Sage, 1998).

45. Bernadette McSherry and Kay Wilson, ‘Detention and Treatment Down Under: Human Rights and Mental Health Laws in Australia and New Zealand' [2011] Medical Law Review 19(4), 548–580.

46. See reports cited n 12–22.

47. For example, some of the data in the Mental Health Council of Australia (n 17) in 2006 was collected in 2003.

48. For example, Kirby and Keon (n 20).

49. For example, Mental Health Council of Australia (n 17).

50. It should be noted that the $1.5 billion package of investment by the Australian government for mental health in the May 2011 budget did not provide any funding for legal services, except the new Mental Health Commission. See n 24.

51. For example, Mental Health (Treatment and Care) Act 1994 R40 (ACT) ss28(d) & 36(3), Mental Health And Related Services Act 1998 (NT) s14(c), Mental Health Act 2000 (Qld) ss13(1)(e) & s14(1)(e), Mental Health Act 1986 (Vic) s8(e), Mental Health Act 1996 (WA) s 26(d), Mental Health Act RSA 2000 s28(4)(d) (Alberta), Mental Health Act RSNB 1973, c M-10 ss 8(1)(iv) and 8(4)(iv) (New Brunswick).

52. P Fennell, ‘Institutionalising the Community' in B McSherry and P Weller (eds), Rethinking Rights-Based Mental Health Laws (Hart Publishing, 2010),17.

53. Rachel Manber, Helena C Kraemer, Bruce A Arnow, Madhukar H Trivedi, A John Rush, Michael E Thase, Barbara O Rothbaum, Daniel N Klein, James H Kocsis, Alan J Gelenberg, Martin E Keller, ‘Faster Remission of Chronic Depression with Combined Psychotherapy and Medication Than With Each Therapy Alone' [2008] Journal of Consulting and Clinical Psychology 76(3), 459–467; Martin B Keller, James P McCullough, Daniel N Klein, Bruce Arnow, ‘A Comparison of Nefazodone, the Cognitive Behavioural-Analysis System of Psychotherapy, and their Combination for the Treatment of Chronic Depression' [2000] The New England Journal of Medicine 342(20), 1462–1473.

54. Diane T Marsh, ‘Personal Accounts of Consumer/Survivors: Insights and Implications' [2000] JCLP/In Session: Psychotherapy in Practice 56(11), 1447–1457, 1455.

55. Ibid, 1456.

56. Genevra Richardson, ‘Rights-Based Legalism: Some Thoughts from the Research' in B McSherry and P Weller (eds), Rethinking Rights-Based Mental Health Laws (Hart Publishing, 2010), 198–200.

57. Ibid, 200.

58. Reilly (n 22).

59. World Health Organisation (n 11), 10–11.

60. See n 24 and n 27.