The Effect of Risk-Based Mental Health Law on Access to Mental Health Services A thesis submitted for the degree of Doctor of Philosophy of The Australian National University by Maree Livermore October 2016 © Copyright Maree Livermore 2016 All Rights Reserved I declare that the work in this thesis is entirely my own and that to the best of my knowledge it does not contain any materials previously published or written by another person except where otherwise indicated. Maree Livermore October, 2016 Canberra, Australia Word Count: 83,379 i. Acknowledgements I would like to thank my principal supervisor, Professor Beverly Raphael, for her warmth, her unfailing confidence, and for her enduring personal support over the course of this PhD. My sincere thanks also to my associate supervisor, Emeritus Professor Terry Carney AO, for his strong commentary on the work throughout, and especially for his support and encouragement in its final stages. Special thanks to Professor John Braithwaite, whose early and kindly advice—and indeed, whose entire body of work—inspired me and mediated my approach to the methodology. This thesis is dedicated to my dear Dad, Brian Livermore, who passed away in the middle of my candidature, and to my much-loved mother and friend, Joan Livermore, who died only recently. In the final stages of her illness, she continued to proof-read, to argue with me about forms of expression, and to teach me invaluable lessons. ii. Abstract The escalating personal, social and economic costs of poor access to effective mental health services in Australia now demands ‘root-and-branch’ re-evaluation of Australian mental health policy, and the structure of the public mental health system— including one of its central pinions, mental health law. There is continuing debate about the clinical, ethical and rights-based rationale for the long-standing model of risk-based mental health law. To date, this has not included the examination of its effectiveness as an instrument of policy. This thesis adopts a regulatory governance perspective overall, to examine the effect of the risk-based model of mental health law on one of its principal express purposes—facilitating access to mental health treatment. The question is addressed in the light of competing perspectives in the literature. These include the dominant discourse, as represented in the law itself, that risk criteria in the law facilitates access to mental health services. They include, also, arguments favouring the hypothesis that risk-based mental health law inhibits access to effective mental health service. The thesis describes the development and application of a novel, mixed-model, social policy analysis framework. It integrates a network governance sub-study and a realist governmentality sub-study, with additional formal scoping and synthesis phases. The literature-based network governance sub-study engages a modified critical interpretive synthesis method. The realist governmentality sub-study combines discourse analysis and ethnographic fieldwork, entailing semi-structured, recorded and transcribed interviews with 28 public psychiatrists in five Australian mental health jurisdictions, in a genealogical analytic. The study found that minimising costs and criticism in the electorate were much higher-priority concerns for the state than facilitating access to service. The study revealed significant evidence of governmental strategies to regulate the action of public psychiatrists to support this order of concerns. There was evidence of both compliant and resistant responses by psychiatrists to these strategies. Both types of responses were found to engage mental health law formally—in practice and for purposes as intended by the legislature—but also informally, for other purposes, and with ‘creative’ interpretation. It was found that mental health law is formally engaged, in practice, to ‘responsibilise’ iii. public psychiatrists to provide risk-focussed usual care. It is used informally to enforce informal triage practices, especially a range of gate-keeping mechanisms; to support blame and accountability mechanisms leveraged against psychiatrists; and for the medico-legal protection of the state and psychiatrists. Access-negative effects to which these practices contribute include: denial or discontinuance of needed public psychiatric care; non-provision of traditional, holistic, individualised, effective psychiatric therapy; waste of psychiatric time and expertise; and high- levels of despair amongst psychiatrists. The results support the discourse that the risk-based model of mental health law prevailing in many Western jurisdictions—including in New South Wales, Victoria and the Australian Capital Territory—does not ‘work’ in relation to its object to facilitate access. The central and growing problem of mental illness in the Australian community will likely worsen if it remains in the care of a public mental health service system built around this non-performing regulatory technology. iv. Table of Contents Chapter 1: Introduction ................................ 1 1.1 The Australian policy problem of access to mental health services ..................... 4 1.2 A definition of access for this thesis .... 17 1.3 The role of mental health law ............. 19 1.4 Focus and significance of the research .... 27 1.5 Theory and methodological demands ......... 28 1.5 Thesis outline ............................ 38 1.6 Conclusion ................................ 39 Chapter 2: Methodology ................................ 41 2.1 Pluralist governance approaches ........... 43 2.2 Governmentality ........................... 48 2.3 Governance+governmentality? ............... 53 2.4 Phase I Scoping methodology ............... 60 2.5 Phase II Network governance sub-study methodology ............................... 64 2.6 Phase III Realist governmentality sub-study methodology ............................... 77 2.7 Phase IV Synthesis methodology ........... 103 Chapter 3: Phase II: Network Governance sub-study Results & discussion ...................... 107 3.1 Introduction ............................. 109 3.2 The Consumer ............................. 111 3.3 The Community ............................ 120 3.4 The Psychiatrist ......................... 126 3.5 The State ................................ 134 3.6 Final synthesis .......................... 139 3.7 Conclusion ............................... 145 v. Chapter 4: Phase III: Governmentality sub-study Results & discussion ...................... 149 4.1 Introduction ............................. 151 4.2 Assemblage A1a: State to Psychiatrists ... 153 4.3 Governmental flow in assemblages ......... 217 4.4 Access-related effects ................... 222 4.5 Conclusion ............................... 243 Chapter 5: Phase IV: Synthesis Results & Discussion . 247 5.1 Synthesis of theory ...................... 248 5.2 Synthesis of method ...................... 250 5.3 Synthesis of findings .................... 251 Chapter 6: Conclusion ................................ 259 6.1 Aims and methodology ..................... 260 6.2 Advantages and limitations of the methodology as applied ................... 262 6.3 Summary of findings ...................... 266 6.4 Implications for literature and practice . 269 6.5 Policy implications ...................... 271 6.6 Final words .............................. 274 Bibliography 275 Appendix A: Phase III interview stimuli 299 Appendix B: Other assemblages 301 Appendix C: Non-legal technologies of influence 307 Appendix D: Directions for reform 325 vi. List of Tables Table 1: Dangerousness criteria as expressed in Australian mental health laws.Error! Bookmark not defined. Table 2: Structural elements of the mental health law and access CIS database. ... Error! Bookmark not defined. Table 3: Phase III sub-study: Sample demography. .. Error! Bookmark not defined. Table 4: Principles of meta-narrative reviewError! Bookmark not defined. Table 5: Elements of Phase IV synthesisError! Bookmark not defined. Table 6: Summary of results of Phase II Network Governance sub-study: Critical interpretive synthesis ......... Error! Bookmark not defined. Table 7: Unexploited regulatory capital in the mental health law and access domain Error! Bookmark not defined. Table 8: Content of Phase III Acts by themeError! Bookmark not defined. Table 9: Governmental strategies of the state and their composite vectors of influence as directed to public psychiatrists.Error! Bookmark not defined. Table 10:‘Governmental flow’ within A1b: Psychiatrists to the State . Error! Bookmark not defined. Table 11: Summary of findings: Elements of Phase III assemblages engaging mental health law .. Error! Bookmark not defined. Table 12: Informal triage criteria reported by Phase III psychiatrist informants. ..... Error! Bookmark not defined. vii. Table 13: Phase III findings: Public psychiatrist practices engaging mental health law that affect access to mental health services (in response to state influences).Error! Bookmark not defined. In Appendix D: Table D1: Summary of alternative policy directions Error! Bookmark not defined. List of Figures Figure 1: Relationship between mental health need, and supply of and demand for mental health services. ......... Error! Bookmark not defined. Figure 2: Linear model of the effectiveness of law Error! Bookmark not defined. Figure 3: The genealogy of Assemblage A1a: The State to Psychiatrists .. Error! Bookmark not defined. Figure 4: Vectors of influence in A1a engaging the law ..........