Dr Stephen Tang1
1Australian National University, Canberra, Australia
This paper critically but pragmatically considers the administrative burden hidden within contemporary mental health legislation and examines its anti-therapeutic effects. The Mental Health Act 2015 (ACT) is used as a case study to explore the regulatory and procedural complexity of legislative decision-making and its unintended adverse impacts at an individual, interpersonal and system-wide levels.
The paper describes the application of a novel method of coding and mapping legislation and related regulatory material within a broader Therapeutic Jurisprudence (TJ) framework. This process helps to identify where and why anti-therapeutic outcomes might occur, and how regulatory reform might be best directed. Using this method, the emergency detention and treatment provisions in the ACT legislation can be examined, with the analysis highlighting the complexity caused by multiple decision-makers and decision points, definitional ambiguities, and the difficulties of tracking multiple temporal and documentary obligations imposed by the legislation. Ultimately, this shifts the focus away from the person to the maintenance of a regulatory system, even if this is contrary to the principles of the legislation itself.
The future development of mental health law and practice therefore requires a different kind of involvement from an often overlooked set of actors: policy analysts, legislative drafters, and health administrators involved in explicit or implicit regulatory design and implementation. This approach also points to new possibilities for legal-psychological research: examining the psychological dimensions of the regulation of mental health. Behavioural, cognitive, and social psychological methods and theory can be applied to understand how people make decisions and behave as regulated agents, and therefore how mental health law can be better designed and implemented to fulfil its therapeutic objectives. In doing so, we can begin to uncover and redeem the sins of the past, particularly the neglect of human-centred regulation and decision-making in the mental health system.
Stephen is a lecturer at the ANU College of Law. His research interests are in legal psychology, especially mental health law, the psychological dimensions of legal regulation and the practice of law, and therapeutic jurisprudence. Stephen is the Secretary of the ACT branch of ANZAPPL and was until recently a senior legal policy adviser in the Office of the Chief Psychiatrist in the ACT. He has also acted as a consultant on mental health law and policy to the World Health Organization, and is a registered psychologist with a particular interest in therapeutic assessment.