The Legal Context of Social Work Practice: An examination of the history of Victorian Mental Health Act (1986) and changes in social policy and human rights legislation that lead to the introduction of the Exposure Draft Mental Health Bill (2010), and associated implications for Social Workers.
This paper looks briefly at the history of mental health, mental health legislation and the development of social work in Victoria. It then explores the socio-political climate which led up to the introduction of the Victorian Mental Health Act (1986) and subsequent Exposure Draft Mental Health Bill (2010) and considers the impact on the role of social workers as implicated by legislative changes and proposals.
A Broad Overview of Mental Health and early Legislation in Victoria: The first Victorian Act to deal with mental health was the Lunacy Act 1867, which was passed after only eleven years of the first sitting of Victorian Parliament ( it contains 190 sections, which amount to 99 pages of the statute book (Rees, 2007, p. 2). Such was the perceived need for statutory law, in a colony that largely comprised convicts from England, plus those it had taken in seeking their fortunes through the Gold Rush of the 1850s. That primary Act established the nexus for subsequent mental health legislation, being the statutory denial of personal freedoms or liberties ( those of movement and of bodily integrity (Rees, 2007, p. 3). Whether these losses of liberties are an act of beneficence or of paternalistic management of the mentally ill, are still subject to consideration by social workers.
Section 8(1) (c) of the Mental Health Act 1986, refers to the persons health or safety (whether to prevent a deterioration in the person's physical or mental condition or otherwise) or for the protection of members of the public. When working with the mentally ill in particular, social workers need to consider the notion of client’s harm to self or to others in their case evaluation. Whilst empowerment and a strengths based perspective are utilized by social workers where and as possible, should a client demonstrate lack of insight, suicidal ideation or threaten others, for example, a social worker needs to exercise particular duty of care in their decision making process, and may need to override their client’s right to confidentiality. Based on a medical model, the 1986 Act does not specifically mention social workers, it refers only to medical practitioners, psychiatrists and guardians, but social workers play a significant role in the treatment and care of the mentally ill, and are bound by the Act.
In 1914, s.8 of the Lunacy Acts Amendment Act first allowed the admission of patients on a voluntary basis, that is, on a patient's own request for a specified period of time, “in order to advance the cause of early intervention” (Rees, N., 2007, p. 4, italics mine) ( albeit a personally ascribed and not a prescribed early intervention, as is a current social work model and nomenclature. Voluntary admission rights, in principle however remain to this day, but when the Mental Health Act 1986 was amended in 1996, voluntary admission was no longer covered by the Act (www.mhrb.vic.gov.au/legislation/legislation.htm).
Victoria’s first institution for the mentally ill, the Yarra Bend Lunatic Asylum, was established in 1848, a mere thirteen years after colonial settlement (Rees, 2007, p. 3). Prior to the establishment of this Asylum, the government had taken no steps to ensure care of the mentally ill, who were either left to wander the streets, or if they ‘caused a disturbance’, were incarcerated in the Collins Street gaol. The Asylum housed both male and female occupants and operated from 1848 until 1925, when admissions ceased and patients were relocated to Mont Park Hospital for the Insane, which had opened in 1912. The Asylum’s bluestone buildings became a part of Fairlea Women’s Prison, which operated between 1925 and 1993,...
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