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Mental Health and the Code of Rights

1. Background

The Health and Disability Commissioner Act was passed by Parliament in 1994 with the primary purpose of giving rights to all health and disability service consumers in New Zealand. From 1 July 1996 the Code of Health and Disability Services Consumers' Rights came into effect, and with it a national system of consumer advocacy and independent Commissioner investigations.

2. The Legislation and Mental Health

The Act and Code give power to groups such as those experiencing behavioural problems, psychological disorders or mental illness. Quality service is maximised in situations where consumers know and trust that the provider is working in partnership with them. While it is often difficult to achieve this partnership relationship when consumers are unwell, in a position of vulnerability, or lacking in adequate information, positive outcomes can result when this inherent imbalance is redressed through the Code.

Mental health consumers often express that the loss of respect, dignity and discrimination are major factors in their treatment process. Compulsory provision of services under the Mental Health (Compulsory Assessment and Treatment) Act results in the loss of the right to give informed consent for treatment of the mental disorder. However such consumers are still protected by the Code of Rights in all other respects including informed consent for treatments that do not fall within the jurisdiction of the Mental Health Act.

Warren Brookbanks will discuss the legal issues in more detail in his paper. I am not a lawyer and my focus today is on how the Code of Rights can be used to empower mental health consumers.

The Code gives mental health consumers a tool. It recognises that maximisation of service cannot occur until consumers feel able to participate. Each Right in the Code has a different way of assisting in the process.

3. The Attitudinal Rights

The particular rights I wish to focus on are Rights 1, 2 and 3 which form the attitudinal umbrella of the Code under which all services must be delivered. They are not the first three Rights in error. They are up front as key components which recognise the individuality of each consumer. Right 1 is the right to respect. Closely associated with Right 1 are the rights to fair treatment (Right 2) and to dignity and independence (Right 3).

RIGHT 1

Right to be Treated with Respect

1) Every consumer has the right to be treated with respect.

2) Every consumer has the right to have his or her privacy respected.

3) Every consumer has the right to be provided with services that take into account the needs, values, and beliefs of different cultural, religious, social, and ethnic groups, including the needs, values, and beliefs of Maori.

RIGHT 2

Right to Freedom from Discrimination, Coercion, Harassment, and Exploitation

Every consumer has the right to be free from discrimination, coercion, harassment, and sexual, financial or other exploitation.

RIGHT 3

Right to Dignity and Independence

Every consumer has the right to have services provided in a manner that respects the dignity and independence of the individual.

Support

The right to support is also an important way to assist mental health consumers.

RIGHT 8

Right to Support

Every consumer has the right to have one or more support persons of his or her choice present, except where safety may be compromised or another consumer's rights may be unreasonably infringed.

With personal support, through friends or whanau, consumers are able to express their individual concerns and issues and where necessary to complain. Conversely providers often use Right 8 where they encounter communication difficulty with consumers and wish to ensure that the consumer is aware of issues and has external support.

4. Other Rights

For communication to be effective it must take place in a safe environment (Right 5). As part of the Commissioner's current education program, many consumers report they have not been given full information, including information on their status, medication, side effects of drugs and support systems or care plans. (Right 6) Additionally many fear raising these problems as they are concerned about the reaction of the provider. They have become accustomed to being discriminated against, due to their mental health condition when they make complaints. Right 10(5) addresses this by ensuring all Rights apply when they make a complaint. If any discrimination occurs, either through the process, or access/attitude to later service, the consumer is able to complain to the Commissioner.

5. Mental Health Focus

Mental health consumers have been slow to use the Code. In this 1999-2000 year, the Health and Disability Commissioner identified mental health services as a key area where positive change will be promoted. This is occurring through focusing on educating consumers and providers about legal Rights under this important consumer legislation. From this base the Commissioner is attempting through education programs to encourage consumers to a position where they "own" and "use" these Rights to improve the quality of these services. The following chart demonstrates how mental health consumers may do this.

Own Your Rights:	Use Your Rights:
Knowledge is the key.	Yes - knowledge is power but power needs to be used.
Share the Code's detail with others.	Tools include: resources from the Commissioner, support persons (Right 8), friends, family, advocates (The Act).
Obtain pamphlets.	Ask if information is not forthcoming.
Ask advocates or the Commissioner for a presentation.	Take a support person to assist (Right 8).
Ring the Commissioner's free enquiry line - 0800 11 22 33	List questions you have and ask for a response.
Ask the Commissioner for advice.	Enquire into your options and how each will affect the outcome.
Commissioner and advocates are available for workshops.	Ask for a second opinion if not sure.
Integrate the Code into consumer group information packages.	Complain to the Commissioner if low-level resolution can't work or the system needs changing.
People seeking and receiving written advice from the Commissioner have included: Mental Health groups and Family Support Groups.	Remember that 3rd party complaints are OK even from Providers.

6. Commissioner's Opinions

The examples listed include cases where both a breach and no breach of the Code have occurred. The opinions where no breach was found demonstrate the independence of the Commissioner and are important reviews of the mental health system integrity. For many consumers they are a reassurance and summary of historic events and provide clarity about what occurred by summarising and reviewing the events.

These opinions are located in the Opinions section of the site. Alternatively copies can be obtained by contacting the Commissioner's Education Division on 09 373 1067.

96HDC2833	Investigation into the actions of a psychiatrist in a Community Mental Health Team in relation to the treatment of a consumer. Outcome: The Commissioner found a breach of Right 4(3) and 4(5) and no breach of Right 4(2)
96HDC3169	Investigation into a complaint from parents about services provided to their daughter by a Psychiatric Emergency Team and Hospital. Outcome: The Commissioner found no breach of Right 4(2) by the DAO and Psychiatrist, but a breach of Right 4(1) and 4(2) by the hospital.
97HDC4833	Investigation into the way a CHE had handled a consumer's complaint about Mental Health Services for the Elderly.
97HDC6633	Investigation into a complaint about the failure of a CHE Services Manager (Mental Health Services for the Elderly) to respond to repeated complaints about the release of information. Outcome: These two cases were considered together. The Commissioner found a breach of Right 10(3), 10(4), 10(6), 10(7) and 10(8) had occurred.
97HDC7814	Investigation by the Commissioner (on her own initiative) into the actions of a psychiatrist and his treatment of a consumer who was a Registered Nurse. Outcome: The Commissioner found a breach of Right 4(2).
97HDC8872	Investigation by the Commissioner (on her own initiative) into a case involving Northland Health and its treatment of Mr Rau Williams. Outcome: The Commissioner found no breach of Right 4(1) but a breach of Right 4(2) and 1(3).