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Protecting our vulnerable: Queensland’s human rights win

5 Nov 2018

In my recent address at the 44th International Mental Health Nursing Conference I reflected on the auspicious coinciding of events—it being 70 years since The Universal Declaration of Human Rights was first adopted in December 1948.

When people think about human rights, they perhaps think of United Nations protocols, complex International treaties, trials in The Hague, Amnesty campaigns and human rights lawyers.

While all of these things are important to defining and preserving human rights at the macro level, perhaps what is more important is how those rights are expressed every day, in many different ways, and many different settings—at the micro level.

It is important and correct for countries to commit to human rights principles, but it is always a much more difficult challenge to implement and embed those principles into daily practice. It’s where the rubber hits the road …

So, this occasion to speak to a vastly packed room of mental health nurses (who live this every day) provided a great opportunity to really think about what human rights mean in the mental health context, what are the frontiers for reform—and how mental health nurses contribute to this.

What is the Commission currently doing? 

Indeed, human rights are a strategic priority of the new Queensland Mental Health, Alcohol and Other Drugs strategic plan, which, has been approved by Government, and will be launched in the very near future.

What we know is that people with a lived experience of mental illness are more likely than other Queenslanders to have their human rights infringed through the use of seclusion and restraint, indefinite detention, and the loss of personal and parental rights.

However, as a Commission, we realised that we needed to better understand the nature and scope of contemporary practice. That is, what is the current status of human rights and mental health practice in Queensland? And where are the gaps?

We are currently examining what processes have been implemented to protect human rights; along with stakeholders’ experiences of how these processes are working in practice, (including mental health nurses); and consumers’ experiences of human rights protections.

That project is expected to report its findings early next year and will greatly inform the next steps we take to strengthen the human rights of people living with mental illness here in Queensland.

Principles and values 

Before we examine the legal framework or infrastructure for human rights, it’s first important to understand the values and principles that are fundamental to the expression of human rights.

According to the Australian Human Rights Commission:

Human rights recognise the inherent value of each person, regardless of background, where they live, what we look like, what we think or what we believe. They are based on the principles of dignity, equality and mutual respect… They are about being treated fairly, treating others fairly and having the ability to make genuine choices in our daily lives.

You can see immediate parallels with the philosophy and practice of person-centred, recovery-oriented mental health care, which contemporary evidence and people with a lived experience describe as:

Being able to create and live a meaningful and contributing life in a community of choice, with or without the presence of mental health issues.

Australia has long supported the principles of person-centred and recovery-oriented practice. In fact, reforms that promote the most therapeutic environment are a fundamental expression of human rights. But how are these translated into the real world of the workplace?

In Australia, these principles are further articulated into guidelines for services that specifically recognise the uniqueness of the individual, empower individuals with real choices, foster healthy attitudes and protect rights, promote dignity and respect, partnership and communication, and evaluate recovery.

The engagement of people with lived experience (not only in determining their own treatment, but in service design and delivery, and in the peer workforce) are also vitally important expressions of human rights and self-determination for people living with mental illness.

Legislative reforms 

Beyond values, there is important change underway to the legislative ‘infrastructure’ of human rights.

In December 2017, Australia ratified the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment, better known as OPCAT.

OPCAT requires the introduction of preventative mechanisms in the form of regular inspections of places where people are deprived of their liberty, including locked psychiatric wards. This applies to the public system, and equally to services contracted-out by government.

Existing accountability mechanisms internal to government, and various professional standards, however well-disciplined, do not satisfy OPCAT criteria. The Commission supports the OPCAT principle of rigorous and independent oversight and accountability mechanisms, however they must be properly and independently funded and operated, in order to be effective.

This means significant changes will be underway in Queensland in the next two years to satisfy OPCAT.

Queensland has already taken significant strides towards improving patient rights, including introducing free legal representation for involuntary treatment, a Statement of Rights for both voluntary and involuntary patients, Independent Patient Rights Advisors and advance health directives under the Mental Health Act 2016.

Advanced health directives provide a more formal mechanism for consumers to express their wishes and preferences for treatment. However, they may be over-ridden, particularly if it doesn’t consent to the treatment and care needed for recovery, and there is “imminent risk of serious harm to the patient or others, or a risk of serious mental or physical deterioration.”[1]

In addition, someone appointed by the patient, or recognised by law as being able to make decisions on behalf of the patient, can give consent to treatment, even if the patient may disagree, and it is considered a less restrictive way.[2]

While these legislative initiatives are still in their infancy, having commenced in March 2017, the effectiveness of these measures will be more fully explored in the Commission’s research.

And today’s news that the Queensland Government introduced a Human Rights Bill into Queensland Parliament is most welcome: something the Commission has long supported and advocated for.

So, it is a very interesting time on the legislative front.

Human rights policies and practices 

Apart from the legislative infrastructure, there are a number of discretionary policies and guidelines that also influence patient care and human rights—specifically locked wards, and seclusion and restraint.

On the question of locked wards, the Commission has advocated for flexible, localised-decision making with structured review. This allows management to take into account the specific milieu on the ward and operational circumstances where it may be necessary to lock a ward, balanced by the responsibility to effectively communicate to all patients, including advising the timeframe the ward will be locked, and the timeframe for review.

However, we will need to take a closer look at the impact locked wards have on the human rights of both voluntary and involuntary patients, particularly in the light of OPCAT.

Seclusion significantly affects patient rights and liberty, and in Queensland can only be authorised when it is the least restrictive option available to protect the patient and others from physical harm.[3]

The annual rate of seclusion for mental health patients in extended treatment facilities of Australian wards has significantly reduced in Queensland for the last six years, but we are committed to further lowering this. On this point we have regular dialogue with the Chief Psychiatrist to monitor developments.

Similarly, the use of mechanical restraint is a last resort to prevent imminent and serious harm to the patient or to another person, and only after less restrictive strategies have been trialled or considered and excluded. In 2017-18 there were only nine patients in Queensland where mechanical restraints was considered necessary.

The Commission, along with Queensland Health, is partnering with the National Mental Health Safety and Quality Partnerships Standing Committee and the National Mental Health Commission to target the reduction of seclusion and restraint as a national priority.[4]

We have also learned from the experience of other jurisdictions, including the systemic issues revealed by the review into restraint and observation of mental health consumers in NSW Health facilities.

The NSW experience highlighted that the issue of seclusion and restraint is much more complex than just a decision of whether to use it, or not.

Research has found that engaged leadership, a ‘just’ culture, CORE values (Collaboration, Openness, Respect, Empowerment) and good clinical governance are important ingredients for reducing seclusion and restraint—creating an environment that benefits both patients and staff.

We are also closely monitoring the trial of the Safewards model in various health services around the State, with a keen eye on both patient and staff safety. In this respect, we are also considering the approaches and findings of the Outcomes of the Victorian Safewards trial in 13 of its mental health wards.

The broader agenda 

Beyond the clinical context, the new statewide strategic plan emphasises removing barriers to social and economic participation, so people with lived experience are more socially included, have access to safe, secure and affordable housing, good quality mental and physical health care, and equitable access to employment, education and training.

These are all basic expressions of fundamental human rights, and ones that most people expect, but ones that are easily overlooked or filed in the ‘too hard’ basket when it comes to mental health.

To make this a reality, the Commission is looking to partner with agencies where common interest and shared objectives may exist, so we can coordinate our effort.

The contribution of nursing 

While this human rights ‘infrastructure’ of values, principles, legislation, policies and guidelines is essential, at the end of the day, they are only ever frameworks in which the real world operates.

Mental health nurses are at the pointy end of human rights and reform because they are dealing, every day, with people who are at their most vulnerable. Their role is a vital and complex one, but the way they deliver their responsibilities as clinicians, every day, enables the human rights of those in their care.

Unquestionably mental health nurses have greater patient interface, and this is where high-quality, compassionate care comes into its own. Access to high-quality professional mental health clinical care is also a human right.

Perhaps the next major frontier for mental health and human rights reform is in fact greater emphasis and reliance on the nursing profession. There is much more we can do to support human rights by enabling and utilising the full scope of professional mental health nursing practice.

By advancing and extending the clinical role of mental health nurses we can achieve so much more in a system that is stretched to capacity. The future lays in multi-disciplinary, team-based approaches to mental health care, including a greater emphasis on prevention, early intervention and community-based care.

For example, mental health nurses are providing important services in rural and remote areas of our State, where services might not otherwise be accessible, including the mental health and other nursing services delivered by the Royal Flying Doctor Service.

Whether it’s improved access to primary health care services, nurse practitioners, physical health assessments, psychiatric triage, assessing suicide risk, trauma-informed care, telephone interventions, post-admission follow-up, and patient referrals, nurses can play a much greater role in delivering human rights, better patient outcomes, and better lives for people with mental illness.

In that we share a common objective.

[1] pages 5-6

[2] section 13

[3] page 33

[4] page 33